1. ' The present appeal has been preferred .By Syed Shamshad, Muhammad Tahir alias Rana, Rab Nawaz alias Rizwan and Musaddiqur Rahman alias Najeebur Rahman against the judgment and order, dated 23-61992, passed by the learned Judge, Special Court No,III (Suppression of Terrorist Activities), Karachi in Special Case No,396 of 1991, convicting the appellants and sentencing each of them for ten years' R.I. Under sections 395, 148 and 34, P.P.C. Khuda Buz, the fifth accused was acquitted.
2. The facts of the case are that on 25-9-1990, MA. Naeem Khan, who has been examined as P.W.6 by the trial Court, lodged First Information Report at Police Station Ferozeabad, Karachi, being Crime No,626 of 1990, stating that he was working in K.E.S.C. As Cashier since 1963. On that day, he, Clerk Tanveer Ahmed, driver Hassan Ali, security guard Mushtaque Ahmed all employees of K.E.S.C.
2. And H.C. Abdul Majeed, who was armed with S.M.G. Alongwith 30 cartridges, were carrying cash of Rs,169,776 in Suzuki Jeep No,209-316, having taken out the same from National Bank of Pakistan, M.I.
3. Branch, Saddar, Karachi. When the jeep reached near his office at 11-15 p.m., 3 or 4 young men, who were wearing Shalwars and shirts and talking in Urdu, started beating the said Head Constable and the security guard, opened firing in the air and took out the above cash from the jeep which was kept in a bag. They also snatched key of the said vehicle from the driver, took the S.M.G. Alongwith 30 cartridges and sped away in their car. He and his companions could identify those persons on seeing them again. The F.I.R. Further reads that the said complaint was being lodged against 3 or 4 persons known by their faces but their names and addresses were not known, for snatching the Government amount and official arm and injuring the occupants of the jeep. The F.I.R. Shows that the investigation was handed over to the S.H.O., the Inspector Raja Ghous of the said police station for investigation.
4. ' It may be pointed out that after the above F.I.R. Was lodged, a letter, dated 30-7-1990 was written to the S.H.O. Ferozeabad Police Station pointing out that the amount mentioned in the F.I.R. Was not correct and it should be corrected to read as Rs,1,601,776, being the actual amount looted. The record does not show that such correction was made in the F.I.R.
3. On 14-12-1990 while Nazar Hussain and Sultan Masood Kayani, the Police Inspectors, then posted at C.I.A. Centre, Karachi, alongwith other police personnel, were checking vehicles on Gulshan-e- Millat Chowrangi, they arrested six persons for possessing unlicensed arms and also for having made preparation for commission of dacoity. The appellants and Khuda Bux Jatoi in interrogation disclosed that they had committed dacoity by looting the amount from the K.E.S.C. Jeep and had also snatched the S.M.G. From H.C. Abdul Majeed of Police Station, Ferozeabad.
4. On above disclosure the investigation of Crime No,626/90 of Police Station, Ferozabad was taken over by the aforesaid Inspector Sultan Masood Kayani. On 5-1-1991, out of the above accused, the four appellants before this. Court, were produced before Shahzad Ali Naqvi, then posted as Additional City Magistrate, C.IA. Court, Karachi, for their identification by the prosecution witnesses, namely, MA. Naeem, Hassan Ali, Mushtaque Ali Nagra and Tanveer Ali. On completion of the investigation, they were challaned.
5. The prosecution examined following nine witnesses in support of the charge.
5. ' P.W.1 Tanveer Ali Chohan, the Junior Office Assistant, K.E.S.C. He produced memo of Inspection of the scene of offence as Exh.4. P.W.2 Hassan All Chohan, the driver of the jeep, P.W.3 Mushtaque All Nagra, the Security Supervisor of K.E.S.C. P.W.6 MA. Naeem Khan, Cashier in K.E.S.C., who had lodged the F.I.R. And produced the same as Exh.11 and letter, dated 3-7-1990 for making correction in the F.I.R. In respect of the amount looted, as Exh.12 and P.W.8 Abdul Majeed, the Head Constable. The above five are the eyewitnesses of the alleged occurrence.
6. ' P.W.4 Nazar Hussain and P.W.9 Sultan Mahmood Kiyani, then posted as Inspectors, C.IA., Karachi who arrested the accused persons and secured arms from them were also examined. The former produced memo of seizure of arms and arrest of the appellants, as Exh.8.
7. ' P.W.5 Raja Ghous, the Police Inspector, who was posted as S.H.O. Of Police Station Ferozabad when F.I.R. In question was lodged and P.W.7 Shahzad All Naqvi, the Additional City Magistrate, C.IA., Karachi, who produced Chart of Identification Parade, as Exh.15.
6. The appellants in their respective statements under section 342, Cr.P.C. Denied the whole of the prosecution case. Appellant Jawed stated that he was resident of Hyderabad and was in car dealing business. He used to visit Karachi as he used to do business with Raja Motors of Karachi where he had met Inspector Sultan Masood Kiyani and had sold to him one Suzuki Alto Car. A sum of Rs,20,000 was received from him and the balance amount of Rs,1,00,000 was promised to be paid within one month. He failed to pay the amount and when demanded he extended threats and subsequently involved him in this case and also in another case. He further stated that the prosecution witnesses were pressurised to depose in Court. With regard to his arrest, he disclosed that he was arrested from Quetta Balochistan Hotel situated in Lasbella, Karachi. He also denied that any identification parade was conducted by P.W.7. The identification test report was alleged to have been prepared without his knowledge and similar report was prepared by the said witness in another case. He produced the deposition of P.W.7 recorded in the other case which was subject- matter of Criminal Appeal No,130 of 1991 filed in this Court. He also produced the identification test report as Exhs.21 and 22. The other three appellants also denied the entire prosecution case and pleaded that they were arrested from Quetta Balochistan Hotel, Lasbella, Karachi and were involved in this case by the said Inspector because of his enmity with appellant Jawed.
7. The trial Court based the conviction on the ocular evidence of P.Ws.1, 2, 3, 6 and 8. The above evidence was further found to have been corroborated by recovery of S.M.G. From appellant Jawed and identification of the appellants by the prosecution witness in the identification parade conducted by P.W.7. The learned trial Court Judge, however, discarded the evidence of P.W.6 in so far as it related to identification parade as it was found that the said witness was shown the five accused persons in C.IA. Centre before the identification parade was held.
8. We have heard Mr. A.Q. Halepota for the appellants and Mr. Muhammad Sarwar Khan, AA.-G.
8. Sindh for the respondent.
9. ' The learned Advocate for the appellants submitted that the ocular evidence is contradictory and inconsistent in material particulars, therefore, ought to have been discarded. In so far as identification parade is concerned, it was contended that it was in violation of settled law. It was further urged by him in the above context that the F.I.R. Does not contain any particulars or features of the culprits who had committed the offence and, therefore, the identification of the appellants after months of commission of offence cannot be relied upon. He placed reliance on The State/Government of Sindh through Advocate-General Sindh v. Sobharo 1993 SCMR 585, Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088, Muhammad Yousaf Zai v. The State PLD 1988 Kar. 317 and Muhammad Afzal and another v. The State 1982 SCMR 129. The alleged arrest of the appellant and recoveries of weapons including the S.M.G. Allegedly snatched from P.W.8, depicted in the evidence of P.Ws.4 and 9, are dubious and belied by the inconsistencies and contradictions. It was pointed out that the prosecution version with regard to the said arrests and recoveries was discarded by this Court in Criminal Appeal No,130 of 1991, filed by appellants against their conviction in another case. The learned AA.-G., on the other hand, contended that the defence has not disputed the presence of the eye-witnesses at the time of the occurrence and as such the learned trial Court Judge rightly placed reliance on the said evidence. No exception can be taken to the identification of the accused by the appellants before P.W.7 in the identification parade and thereafter in the Court. He submitted that the circumstances in which the offence was committed, the impression of the faces of the appellants was so engraved on the mind of the witnesses that they would not forget them for years together. He sought support for his above submission from Mumtaz Ahmed and others v. The State PLD 1980 FSC 38 and Khalil Ahmad and others v. The State PLD 1993 Kar.
13. He also submitted that the evidence of the police personnel examined, cannot be thrown out as they are Muslims, in view of the law laid down in Mst. Hakumat Bibi v. Imam Din and others PLD 1987 SC 22.
9. Since the learned trial Judge had relied on the ocular evidence of P.Ws.1, 2, 3, 6 and 8, found it corroborated by the arrest and recovery of S.M.G. Disclosed in the evidence of P.Ws.4 and 9 and identification of the appellant in the test held by P.W.7 Shahzad Ali, we propose to first consider the ocular evidence.
10. P.W.1 Tanveer All Chohan deposed that the incident took place on 25-7-1990 at 11-00 or 11-30 a.m. He had come from M.I. House, K.E.S.C. Head Office and brought cash of Rs,16,01,776, alongwith Naeem, the timekeeper, Hasan Ali, the Driver and Mushtaq Nagra, Security Supervisor. When they reached near Shahrah-e-Quaidin O.C.I Office of the K.E.S.C., Head Constable Abdul Majeed who was on duty with them opened the door of the Jeep. Suddenly 3 or 4 persons rushed towards the jeep and attacked it. They pulled the police constable out of the jeep. He heard gun shot. He came out of the jeep and started running. He had not seen whether the driver and other persons in the jeep had come out of it. The culprits took money from the jeep and went away. He had not seen the culprits and was unable to identify the accused present in Court to be the persons who had attacked the jeep. He further stated that he was never produced before the Magistrate for participating in identification parade. Learned A.P.P. Requested the Court for permission to cross- examine the witness as he had turned hostile by denying his participation in the identification parade. The request was allowed, and the A.P.P. Was permitted to cross-examine the witness. In cross-examination he denied that he had identified five persons before the Magistrate or on that day MA. Naeem, Mushtaq Nagra and Hasan Ali had also appeared before the Magistrate for identification parade. The learned Judge then bound down the witness for appearance on the next date for Court questions when the Magistrate, who had held identification parade, was to be examined and produce the result of identification parade. It was, however, on 29-8-1991 when P.W.7, the learned Magistrate was examined and on that very day the Judge put the following leading questions to the witness:--
(1) It had come in the evidence of P.W.7 Shahzad Ali Naqvi, Assistant Commissioner and Sub- Divisional Magistrate that you appeared before him for identification parade alongwith other witnesses on 5-1-1991 in his Court room. What do you have to say?
(2) Is it correct that you identified four accused persons in presence of the Magistrate in Court?
(3) Is it correct that you identified Javed alias Shahanshah, Muhammad Tahir, Rab Nawaz and Mussadiq before the Magistrate?
10. ' The witness replied all the questions in affirmative.
11. ' P.W.2 Hasan Ali deposed that he was working as driver in the aforesaid office of K.E.S.C. About one year back he was sent to bring the cash for payment of wages, alongwith Naeem Chohan, Mushtaq and one police constable. He was driving the jeep and went to Abdullah Haroon Road, to bring cash from Head Office of K.E.S.C. When he was returning back, the cash was lying in the jeep under the custody and control of police constable and other employees of K.E.S.C. In the jeep. When he reached Sharae Quaidin at his office gate, there was a truck standing on the gate. He, therefore, stopped the jeep out side the gate. One person holding pistol in his hand came running towards him and pointed the same to him. He took out the keys of the jeep and went to the back portion of the jeep for getting money after unlocking the same. He heard fire shots. The said culprit hit something on the head of the constable and also injured Mushtaq Nagra, the Security Supervisor, sitting in the jeep. The said culprits took the cash and gun of the said constable. There were three other persons in addition to the culprit who had taken keys from him. He identified Tahir to be the person who had pointed gun at him and taken the keys. The police came at the place of occurrence later and prepared Mashirnama which was signed by him. He also denied his participation in identification parade or having identified any person before any judicial officer. The cross-examination of the witness by the learned A.P.P. Was allowed at his request. In cross- examination he denied the suggestion that he was working as informer for the accused and he had informed them about the money that was to be brought by him on the day of the incident and had told them to commit dacoity and pay him his share or that he had received his share and was deposing falsely. In cross-examination to the learned counsel for the appellant Tahir, he admitted that he had not disclosed features of any of the culprits and further stated that he had identified the said appellant in Court as he is the person with black complexion and the person who had snatched the keys from him was also of such complexion and, therefore, he suspected him to be the same person. The witness was bound down for appearance on the next date like P.W.1. On 29- 8-1991 the above questions were put to this witness also and he replied them in affirmative.
12. ' P.W.3 Mushtaq Nagra deposed that he was working as Security Supervisor in O.C.-I Branch of K.E.S.C. On first of Moharram of the preceding year at about 11-00 a.m. He alongwith Naeem, driver Hasan Muhammad, Tanveer Chohan and police constable went to head office in a jeep. After collecting cash, when they came back to the aforesaid branch, the gate thereof was blocked by a truck and, therefore, jeep was stopped there by the driver. Four or five persons came there when they were getting thwn from the jeep, somebody hit him with iron rod or wooden stick on his head.
13. He fell down and became unconscious. He did not know what happened later on. He regained his consciousness in Jinnah Hospital. When asked to identify the accused, he stated that they were not the same persons who had attacked him and the jeep. This witness was also allowed to be cross- examined by the learned A.P.P. At his request for the reason the former two witnesses were allowed to be cross-examined. In the said cross-examination he denied that he had seen the accused Khuda Bux Jatoi attacking them on the day of tie incident. He denied the suggestion that he had conspired with the accused persons to save them and to get his share out of the loot and it was for such reason that he was deposing falsely in Court. He denied that he had informed the accused about the cash to be brought on that day and had asked them to loot the amount. This witness was also bound down by the learned Magistrate. On 29-8-1991 the same questions were put to him and he replied them in affirmative like P.Ws. 1 and 2.
14. ' P.W.6 MA. Naeem Khan deposed that alongwith P.Ws.1, 2 and 3 he went to K.E.S.C. Head Office National Bank of Pakistan. After he had drawn Rs,16,01,776 from the Bank, they came back to Shahrah-e-Quaideen in the jeep. The gate of K.E.S.C. Office was open but due to unloading of goods from another vehicle the road was blocked. He came down from the jeep to see what was going on. The jeep was on the road in front of the gate. He saw that 2 or 3 boys were beating security guard, H.C. Abdul Majeed and then firing in the air started. One of the boys snatched the cash bag and took it away forcibly from the jeep where it was lying and kept the same in another vehicle which was parked nearby belonging to the culprits who were 3 or 4 in number and they ran away in the same car. He identified the appellants to be the persons who had taken away the cash, started firing in the air and fled away in the vehicle after committing dacoity. He had not seen Khuda Bux Jatoi and Muhammad Hussain at the place of occurrence. He stated that he knew Khuda Bux Jatoi was employed in K.E.S.C. He went to Police Station Ferozabad and lodged the complaint. The police recorded the F.I.R. On his dictation. He produced a copy of the F.I.R. As Exh.11.
15. He came back to K.E.S.C. Office and reported the matter to the Engineer. At about 1 o'clock police came there and he showed the place of occurrence and the jeep to the police. His statement was recorded. He was called by the C.IA. Police who asked him to recognise the accused who were present in the C.IA. Centre. After 10 or 12 days he was produced before the Magistrate, after he visited C.IA. Centre and the Magistrate conducted the identification parade. There were 10 to 15 persons in the room. He was called by the Magistrate five times in the room and each time he identified each of the accused. He stated that Tanveer Ahmed, Muhammad Hassan and Mushtaque Nagra were also produced before the Magistrate but none of them was called by the Magistrate in his presence. He produced copy of the letter for correction of the amount mentioned in the F.I.R., as Exh.12. It was further stated by him that he was shown five persons at C.IA. Centre excluding Khuda Bux Jatoi by Inspector Sultan Masood Kiyani. The police also informed him about the names of those persons. It was stated that the cash was lying with H.C. Abdul Majeed. He denied the suggestion that he had embezzled Rs,15,00,000 in the shelter of dacoity. He deposed that he had stated to the police while lodging the F.I.R. That he had got down from the jeer to find out as to why the gate was blocked and it was found that the gate was blocked as unloading was going on from some vehicle. On confrontation of it was found that it was not recorded as alleged.
16. He denied the suggestion that no dacoity had taken place and that the story was concocted by the Engineer with the connivance of the police to swallow the amount of Rs,15,00,000.
17. ' P.W.8 is Abdul Majeed, the Head Constable. He deposed that on 25-7-1990, he was posted at Ferozabad Police Station and was on duty with the cash van of K.E.S.C. On that day he went to K.E.S.C. Office situated at Shaharah-e-Quaideen from where he accompanied the cashier to Saddar for drawing cash from the Bank. The cash was obtained by the cashier. He was not aware about the details of the cash. He had accompanied the cashier in jeep. P.Ws.1, 2 and 3 were also with them. The jeep was stopped at the entrance gate of K.E.S.C. As the passage was blocked by the truck. He suddenly received injury on his head as some one had hit him with iron rod from the back when he was getting down from the jeep to know the reason as to why the jeep had stopped.
18. Four young persons started grappling with him and they snatched S.M.G. Which he was carrying with him officially. He also received another blow with the iron rod which also caused injury on his head and thereafter the gun was snatched. He became unconscious and was taken to the hospital. He deposed that he could identify those four persons who hit him with the iron rod. He then identified the present appellants to be the persons who had caused injury to him. There were many persons in the complaint centre from the public but he was not able to say anything about them. He then identified the S.M.G. With loaded magazine to be the one snatched from him by the accused. He disclosed that he sustained 13 stitches on his head and regained consciousness on the same day. He produced the medical certificate as Exh.16. In cross-examination he disclosed that Hassan Muhammad, the driver and the cashier MA. Naeem Khan were sitting on the front seat of the jeep and he was sitting on the rear seat with security guard Mushtaq Nagra and Tanveer Ahmad, the clerk. The cashier and the driver also had got down from the jeep while he was conscious. He was the first person who got down from the back portion of the jeep. When he received the injury, he saw the driver and the cashier were also getting down from the jeep. He denied that the cashier and the driver had got down first and he got down from the jeep subsequently. There was separate door in the back portion of the jeep. He stated that he could identify the accused as he sustained the injury while he was getting down and accused persons had grappled with him, before he had fallen down. He had reported the loss of the gun to the police and it is mentioned in the F.I.R. He had also seen the keys being snatched from the driver. He could not fire as the accused had grappled with him and he had no opportunity for firing. His statement was recorded at Ferozabad Police Station and not in the C.IA. Centre. After the incident he had seen the accused on different occasions when he came in the Court for evidence in the past. He deposed that his statement was recorded by the Magistrate for the purpose of holding identification parade. He denied that he was deposing falsely on the instructions of his superiors.
19. When he sustained the first blow from the back on his head, he fell down facing the side and not head down. He had regained his consciousness after 3/4 hours in the hospital.
11. As has been noted above, first 3 prosecution witnesses were declared hostile and the learned Prosecutor was permitted to cross-examine them. Nothing could be extracted from any of them to discredit their evidence. On the contrary the question put to them in the said cross-examination tend to change the complexion of the prosecution story. Learned Prosecutor went to the extent to suggest that the said witnesses were part of the conspiracy hatched to commit dacoity. For the moment it may suffice to . Say that the evidence of the hostile witnesses is not to be over looked completely. The rule of appreciation of evidence in criminal trial is that the evidence of hostile witnesses is not to be totally excluded from consideration. The Court when declares the witness to be hostile at the request of the prosecution, it permits the prosecution as provided by Article 150 of Qanoon-e-Shahadat Order, to put such question to his own witness which might be put in cross- examination by the adverse party, with a view to shake the credibility of the witness. Under such circumstances the evidence of such witnesses is to be considered for what it is worth. In this regard reference may be made to (1) Iftikhar Ahmed alias Bobi and another v. The State 1991 PCr.LJ 488, (2)
20. Muhammad Siddiq and 5 others v. The State 1991 PCr.LJ 866, (3) Abdul Ghafoor v. The State 1991 PCr.LJ 752, (4) Muhammad Ashraf v. The State 1991 PCr.LJ 2274 and (5) Imam-ud-Din alias Bashir v.
21. The State 1991 MLD 1699.
22. ' In view of the above the evidence of the first three prosecution witnesses is to be considered according to their merit.
23. ' The evidence of all the eye-witnesses has been reproduced herein above. The reading of the said evidence shows that all the witnesses have described the incident tangentially. The depositions of the said witnesses cannot be synchronized with each other. The evidence suffers from contradictions, inconsistencies and improbabilities. According to P.W.1 Tanveer All Chohan when the jeep stopped P.W.8 Abdul Majid opened the door of the jeep and suddenly 3 and 4 persons rushed towards the jeep and attacked it. They pulled P.W.8 out of the jeep and he then heard gun shot. As disclosed by the P.W.8 he was sitting on the rear seat. While he was alighting from the rear exit, some one hit him with iron rod on his head. He does not say that he was pulled down from the jeep. It has come in evidence that P.W.1 Tanveer Ali Chohan and P.W.3 Mushtaq were also sitting on the rear seat of the jeep. If P.W.8 had in fact suffered the injury as alleged by him P.Ws.1 and 3 also must have seen the injury being caused to him, while he was alighting from jeep. But these two witnesses have not so stated. P.W.2 Hasan Ali deposed that when he stopped the jeep outside the gate, one person holding pistol came running towards the jeep and pointed the same at him. That person took out the keys of the jeep and went to the back portion of the jeep for getting money after unlocking the door. He heard fire shot. He then stated that the person who had snatched the keys, hit something on the head of the constable and also injured Mushtaq Nagra the Security Supervisor sitting in the jeep. The above evidence is not corroborated by any other witness, P.W.8 though stated that he had seen the keys being snatched, but has not disclosed pointing of pistol at P.W.2. P.W.3 Mushtaq Nagra stated that on receiving injuries he became unconscious. The above statement of his becoming unconscious also remains uncorroborated. Except P.W.2 none of the other witnesses disclosed the injuries caused to P.W.3. P.W.6 MA. Naeem Khan stated that he had seen 2 or 3 boys beating the Head Constable, but he did not depose regarding the injuries caused to the said constable. In the examination-in-chief P.W.8 Abdul Majid stated that he had received the injury when he was getting down from the jeep immediately after it had stopped. No other prosecution witness has corroborated the above statement with regard to the injuries received by him in the manner alleged by him although according to him he was the first man to get down from the back portion of the jeep. In case the injuries were caused to him as alleged by him, the persons, who were sitting in the rear seat, would be able to see it, but neither the complainant MA.
24. Naeem Khan has so stated in his F.I.R. Nor in Court. The first three prosecution witnesses also have not in any manner corroborated the above statement, out of whom Mushtaq and Tanveer were sitting on the rear seat.
25. ' His further statement that he had received head injury while he was getting down from the jeep and simultaneously the appellants had grappled with him cannot be reconciled with his version that on receiving first blow, he fell down on the ground. P.W.8 Abdul Majid, the constable stated that he alighted from the jeep to find out as to why the jeep had stopped. He disclosed in the cross- examination that he had also seen the keys being snatched from P.W.2 and he had also seen P.W.
26. Hasan All driver getting down from the jeep. According to P.W.2 Hasan Ali, when the jeep stopped, a person came to the jeep, pointed pistol at him and snatched the keys. P.W.8, who was sitting on the rear portion of the jeep, would see the incident as described by P.W.2. If P.W.8 had seen a person snatching keys from P.W.2 Hasan Ali, he must have seen the pistol was also pointed at him. In any case if he saw the keys being snatched from the driver, his immediate response would be to take up his gun and point it at the person, who was snatching the keys, instead of alighting from the jeep to discover as to why the jeep had stopped. He saw the keys being snatched. The cash was lying in the jeep in his custody. The natural conduct of P.W.8 in the circumstances would be to protect the cash, instead of getting out from the jeep, leaving the cash in jeep, with unarmed companions. Such conduct on his part was highly improbable under the circumstances of this case.
27. ' P.W.8 alleged that the dacoits had caused head injuries to him. He produced medical report as Exh.17 which shows that four injuries were caused to him, out of which two injuries are shown bone deep. However, the above medical report was not proved as the medical officer, who had allegedly examined him, was not produced in evidence and is not even a witness in the challan. The said evidence, therefore, deserved to be discarded. It may further be pointed out that P.W.8 had deposed that after receiving the injuries, he had fallen down on the ground. Looking at the nature of the injuries, the witness must have bleeded profusely. But the memo. Of inspection of the place of occurrence, prepared soon after lodging of the F.I.R. By P.W.5 Raja Ghous, then posted as S.H.O. At Ferozabad Police Station, does not show that any blood was found at the place of occurrence.
12. Except P.W.1 Tanveer, all the eye-witnesses have given the number of the assailants to be three or four and all the offending acts are alleged to have been done by all of them jointly, which leads to obscurity. If the keys were snatched, it must be an act of one person and so also, would be the case about taking away the bag containing the cash and snatching the S.M.G. Even in Court the witnesses could not ascribe any particular act to any of the appellants. No doubt when any act is committed in furtherance of common intention, it would be enough to rope in all the appellants for the act done by any of them, but before this could be done, when a particular act alleged is per se an act done by one person, like taking keys of the car or taking away the bag from the jeep, causing injury with iron rod, which acts the witnesses profess to have seen, are to be specifically shown to have been done by particular individual and is required to pin point such acts accordingly. General allegations, without assigning the specific role to specific person or persons, do not under the circumstances of this case, inspire any confidence and it would be unsafe to rely upon such obscure evidence for conviction of the appellants for offence of dacoity.
28. ' It may, however, be noted that each case is to be approached in a manner warranted by its circumstances and exigencies.
29. ' Approach to and manner of dealing with a given case is determined by the facts and circumstances thereof.
30. ' If there is a case in which five or more persons enter a house and all of them herd the inmates of the house in a room and then start looting the house, it would be unreasonable to insist upon evidence in respect of the particular acts done by each or some of the culprits.
31. ' To fully appreciate this aspect of the case, reference may be made to Khalid Ahmed and others v.
32. The State PLD 1993 Kar. 13, relied upon by the Assistant Advocate-General. Reference may also be made to the following observations in the case of Ghulam Rasool and 3 others v. The State 1988 SCMR 557:-- "The second piece of evidence which has been relied upon by the prosecution is the identification parade. The perusal of the record shows that besides suffering from other legal infirmities which have been alluded to by the learned trial Court, the identification parade also carried an inherent defect and that is that Abdul Majid P.W. Did not describe the role played by each of the appellants at the time of the commission of the offence. The same, therefore, has lost its efficacy and cannot be relied upon. Reliance in this respect is placed on the case of Khadim Hussain v. The State reported in 1985 SCMR 721."
33. The above observations are fully attracted to the present case. P.W.7 Syed Shahzad All Naqvi has produced the identification memo. As Exh.15. It does not disclose that any of the witnesses, who had identified the appellants, had assigned any role played by each of them in the alleged crime. In the evidence also, as already detailed above, these witnesses had not assigned any specific role to any of the appellants. The ocular evidence, under the above circumstances, cannot be said has brought the charge home to the appellants and as seen above, suffers from contradictions, inconsistencies and improbabilities and does not establish the case against the appellants.
13. The cases relied upon by the learned A.A.-G. Do not advance his submissions. In the case of Mumtaz Ahmed and another (ibid), the learned Judges had found that the prosecution witnesses had given the physical description of the accused persons in the F.I.R. It was in the above context that the observations were made to the effect that incidents like dacoity carve on the mind of the witnesses such indelible impression which may live with them for the rest of their life. In so far as the case in hand is concerned, as already observed above, the physical description or features of the dacoits were not disclosed in the F.I.R. Had the faces of the dacoits been imprinted on the minds of the informant, he would have given their description in the F.I.R, which was recorded soon after the incident. In the case of Khalil Ahmed (ibid), the holding of identification test was not disputed but only legality thereof, as it was alleged not having been conducted according to law. In so far as the present case is concerned, P.Ws.1, 2 and 3 had stated that they had not participated in the identification parade. The evidence of P.W.6 with regard to identity has been rightly discarded by the learned trial Judge for the reason that the accused persons were shown to him at. C.IA.
34. Centre before holding of identification parade.
35. ' In so far as the case of Sarfraz Durrani (ibid) is concerned, it is pertinent to point out that the appellants in that case were convicted for an offence allegedly committed under the provisions of Prohibition (Enforcement of Hadd) Order (IV of 1979) for having been found' in possession of 2 Kgs.
36. Of Heroin. However, the said authority does not suggest that even where the evidence of a sane Muslim is found inconsistent and unreliable, even then it should not be discarded merely for the reason that the statement has been made by a sane Muslim. The above intent can be gathered from the following observations made by their Lordships:-- "It may be pointed out that if a person is named as a witness in a number of other cases, it does not mean he is necessarily a liar, unless it has been so found by a competent forum."
14. The first three prosecution witnesses, as noted above, had not identified the appellants in Court and they had also denied to have participated in the identification parade. The learned Judge bound them down. At this stage, it would be proper to consider the impact of the answers given by the first three prosecution witnesses to the Court questions and the legality of the said questions.
37. The above questions were purportedly put by the Court under the powers conferred by Article 161 of Qanun-e-Shahadat, 1984, which is pari materia with section 165 of the Evidence Act (I of 1872). It reads as under:-- "161. Judge's power to put questions or order production.--- The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he places in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant, and may order the production of any document or things and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:- ' Provided that the judgment must be based upon facts declared by this Order to be relevant, and duly proved: ' Provided also that this Article shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under Articles 4 to 14, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Article 143 or 144; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted."
38. ' Under the above provisions of law, the Court has wide powers to put any question to any witness in any form at any time. However, the first proviso thereof limits the effect of the reply received on such question by providing that the judgment must be based upon facts declared by Qanun-e- Shahadat Order to be relevant and duly proved. The analysis of the above section would be that the judgment must be based upon the facts declared by the said Order to be relevant and must be based upon facts duly proved. In so far as the subject-matter of the questions put by the trial Court to the witnesses is concerned, it relates to the relevant facts but the question will still remain whether the judgment can be based on the replies given by the witnesses to the questions put by the Court, if otherwise the said fact, that is to say the identity of the appellants, is not duly proved.
39. The consequence of the above analysis would be that in case the identity is not proved independently of the answers to the Court questions, it cannot be made basis of the judgment.
40. Additionally in our humble opinion, the learned Judge was not justified, under the circumstances of the case to take upon himself the duty of the prosecutor to put leading questions to the witnesses.
41. No doubt it is the duty of the Judge to put questions to the witness to clear doubts arising out of the statements of witnesses, but as the Judge is required to remain impartial and weigh the scales of justice evenly, he should normally refrain from putting himself in the position of prosecutor or defence counsel.
42. ' In Adan Haji Jama and others v. The King PLD 1947 PC 381, the learned trial Judge, in absence of the prosecutor, himself undertook the duties of the prosecutor inasmuch as he conducted their examination-in-chief. Sr, John Beaumont, speaking for the Privy Council ruled that this was the real vice in the trial. It is then observed at page 386 as under:-- "The absence of a prosecutor necessarily involved a breach of section 226 of the Ordinance, since he could neither open his case nor examine his witnesses. It is to be observed however that the definition of Public Prosecutor in the Ordinance contemplates that there may be a prosecutor other than a Public Prosecutor regularly appointed by the Governor under section 356, and their Lordships cannot think that there would have been any overwhelming difficulty in securing the services of some suitable person as prosecutor, and thus avoiding the acquittal of the accused for lack of evidence tendered against them. That course was not followed and the Judge himself undertook the duties of the prosecution. This was the real vice in the trial. Breaches of particular provisions of the Ordinance might have been cured under section 393 but the combination in one person of the duties of Prosecutor and Judge, in their Lordships' view, prevented the trial from being one conducted substantially in the manner required by the Ordinance."
43. ' In Bashir Ahmed v. The State PLD 1957 Lah. 841, the learned trial Magistrate put certain questions to the witness which he did not answer and kept silent. The witness was taken into custody and kept in until the following day when his statement was recorded for the second time and he replied the question.
44. ' The High Court formed the opinion that the answer given by the witness was in reality forced upon the witness, otherwise if left alone, he would have stuck to his previous statement. Hakeem Khan v.
45. The State PLD 1958 Pesh. 33 lays down the rule that it is the duty of the Judge to put questions to clarify doubts arising out of statements of witnesses. .
46. ' In the case of Syed Kanchan Ali v. Shahjahan and others PLD 1962 Dacca 192, while considering the provisions of section 165 of Evidence Act (I of 1872), the Division Bench has observed as under:-- "... The learned Additional Sessions Judge certainly is empowered to put questions to witnesses and, in proper cases, he ought to put some questions in order to clarify an obviously confused statement; but such power of questioning witnesses should be exercised with a good deal of caution and restraint. It is not the Court's function to place itself in the position of a cross- examining lawyer. In cases where it is fairly obvious that there is some confusion in the mind of the witness, he may clear the same by a few proper questions. If misleading questions in a sleek and tricky cross-examination have confused a witness, he may and should ascertain whether the witness has understood such questions. He may and ought to put questions in order to obtain information on material points if they are not otherwise available. It is impossible to lay down any precise 'norm' with regard to the limits within which such questions should be put. It can be best ascertained by judicial experience. It is always better to exercise moderation in putting questions to a witness lest such questions may amount to undue interference with the handling of the case by the lawyers for the parties. There is, however, one clear principle which has been invariably followed, that is, the Court should normally refrain from putting itself in the position of a prosecutor or a defence lawyer, specially when the parties are represented before it."
47. ' In the State v. Balahari Das Sutradhar PLD 1962 Dacca 467, a Division Bench has made very pertinent observations at page 485 and we quote:-- ".... It is true that section 165 of the Evidence Act gives very wide power to the Judge to put any question he pleases to any witnesses in order to discover or obtain proper proof of relevant facts.
48. This power, however, should be used with great circumspection and only when it is absolutely necessary in the interest of justice and without assuming the role of any party to the proceeding."
49. ' The learned Judges have then reproduced the following observations made by Chief Justice Richard Garth in the case of Noor Bux Kui and others v. The Empress (sic) as under:-- "It is not the province of the Court to examine the witnesses unless the pleaders on either side have omitted to put some material question or questions; and the Court should, as a general rule, leave the witnesses to the pleaders to be dealt with as laid down in section 138 of the Act."
50. ' The above reported cases are unanimous on the point that the Court has wide powers to put any question to the witness to resolve any ambiguity or confusion that may creep up in the evidence.
51. The Lahore and Peshawar Courts are of the view that the Court can put such questions for proper administration of justice irrespective of the fact whether it helps prosecution or defence. The Dacca Bench has been of the view that the Courts should put questions that may help the defence but this power should not be exercised to advance the cause of the prosecution.
52. ' Article 161 does not put any embargo or limitation in exercise of the power conferred on the Court.
53. The proviso, however, clearly lays down that the judgment is to be based on the facts proved in accordance with the provisions contained in the Order. Looking at the above proviso the proper construction of the said Article in its totality would be in our humble view that the above power is to be exercised by the Court to resolve any ambiguity or confusion found in the evidence and to clear away the doubts created by different pieces of evidence but while exercising such power the Court shall weigh the scales of justice evenly.
54. ' Before proceeding further, we may narrate the back drop of the proceedings from 10-6-1991 to 29- 8-1991, when the leading questions were put to the said three prosecution witnesses. On 10-6-1991, the learned A.P.P. Filed application under section 193, P.P.C. Read with section 476-A of Cr.P.C. For prosecution of the said witnesses for perjury. As noted above, the witnesses were bound down to appear on each date of hearing, although P.W.7 Shahzad All Naqvi was not to be examined on the said dates. On 16-7-1991, P.W.3 Mushtaq Nagra remained absent. The learned trial Court ordered issuance of non-bailable warrants against the said witnesses. On the next date, i,e, 29-8-1991, the witnesses were subjected to the questions. From the above circumstances the aroma that developed, it can be inferred, put the said witnesses in a state of fear, as message of serious consequences stood conveyed to them. The scare was deepened by the form of leading questions put to them.
55. ' The questions put by the learned Judge to the witnesses were leading questions, clearly suggestive of the answer expected by the Court to be given by the witnesses, after creating an atmosphere where the witnesses had become apprehensive and were made to surrender, we are, therefore, of the opinion that the answers were thrust on the witnesses.
56. ' The above mode of proceedings could have been avoided. There was no need to bind down the witnesses to appear on each date of hearing. They could have been summoned for questions, after examination of the learned Magistrate. The questions could have been touched in some other form in the interest of fair proceedings, instead of suggesting to the witnesses that the Magistrate has given such and such statement, this indirectly telling them that they cannot disown it and that they are required to confirm it.
57. We, therefore, hold that it would not be proper to consider the said part of evidence that has come on record in answer to the leading questions put by the learned Judge. We also feel it necessary to deprecate the conduct of the learned Judge in putting those questions to the witnesses. It may be pointed out that there was no ambiguity or confusion which needed to be resolved. The question whether identification parade had taken place or whether the said witnesses had participated in the said parade, there being two counter-versions coming from prosecution on the one hand and the defence on the other, did not require to be resolved by the Court questions but on the basis of the proved facts on record and, therefore, no need had arisen to put the questions to the witnesses.
15. What now remains to be considered is the question of arrest of the appellants and their alleged companions and the recoveries made from them. It is alleged that the appellants were arrested on 14-12-1990. The memo. Of seizure of weapons and arrest of the appellants was prepared by the Investigating Officer Sultan Masood Kiyani and it was witnessed by P.W.4 Nazar Muhammad and Muhammad Suleman Mirza, the then Sub-Inspectors of C.IA. According to the above memo. Five persons were arrested from car No,R-0783 which has been referred to in evidence as first car.
58. Those persons include Jawed, Tahir, Musaddiqur Rahman, the appellants and Muhammad Hussain and Khuda Bux. The sixth person, appellant Rab Nawaz, it is stated in the memo., was in the second car with registration No,G-9452 who had opened fire after getting down from the said car and was arrested on being chased by the police. It is further stated that he had fired with TT pistol.
59. ' Out of the witnesses of the said memo., P.W.4 Nazar Muhammad and P.W.9 Sultan Masood Kiyani have been examined in Court. According to P.W.4, .The arrest was made about 100 paces away from Korangi Industrial Area. It was admitted by him that the industries in the said area work in three shifts. One of the shifts starts at 7 a.m. It was disclosed by the said witness, "it is general routine that when the shift is to start at 7 a.m., the workers are seen on the roads from 6 a.m. This shows that in spite of the availability of witnesses from public, the police avoided to associate any independent person with the alleged recoveries and arrest.
60. ' According to P.W.4, the second car stopped near him on his signal, when the first car was under checking by Sultan Masood Kiyani but according to the latter, as stated by him in his examination- in-chief, he had seen two cars coming. He signalled the one coming ahead and it stopped as the road was blocked but when the second car was signaled, it violated the signal and the persons sitting in the second car ran away.
61. ' According to P.W.4, five persons were arrested from the first car, namely, four appellants and Khuda Bux but in so far as memo. Of arrest is concerned, it shows that three of the appellants were arrested from the first car and the fourth appellant Rab Nawaz was arrested after being chased, who had started firing after getting down from the second car. P.W.9 contradicted the statement of P.W.4 by deposing that four persons were arrested from the first car.
62. ' According to P.W.9, occupants of the second car on violating the signal started firing there and then. On firing in return by the police, the second car stopped at a distance of 25 paces from the place where P.W.9 was standing. The culprits got down from the car and ran away. Yet to another question in cross-examination, he disclosed that occupants of the second car when signalled to stop, opened firing, leaving the car at a distance of 100 or 200 feet, they ran away towards Katcha path.
63. ' According to P.W.4, when the appellant Rab Nawaz was arrested by the police personnel, neither the said witness nor P.W.9 was present at the place of his arrest. P.W.9, however, stated that Rab Nawaz was arrested at a distance of 35 yards from him, when he was standing near the first car.
64. ' In view of the above contradictory and inconsistent evidence of the said two witnesses, the memo.
65. Of seizure and arrest, Exh.8, is only worth to be discarded and so also the evidence of the aforesaid two witnesses.
66. ' Although cross-firing has been alleged but, as admitted in the evidence, no empties were recovered either from the second car or the place from where shots were fired. Exh.8 is also silent in this respect which confirms the fact that no empties were recovered by the police. In view of the above state of evidence the only inference that can be drawn is that the appellants and their alleged companions were not arrested as alleged by the prosecution. This evidence thus, falsifies the allegation of firing and so also the alleged arrests and recoveries.
67. ' Before parting with the judgment, it may be pointed out that after arrest of the appellants and others on 14-12-1990, apart from this case, the appellants and other persons were also involved in another case of dacoity committed within the limits of Korangi Industrial Area Police Station. They were convicted by the Suppression of Terrorist Activities Court. The conviction was assailed in Criminal Appeals Nos.130 and 181 of 1991 before this Court. The above appeals were decided by a Division Bench of this Court of whom one of us (M. Hussain Adil Khatri, J.) was a member. The same arrest and recoveries, as projected in this case, were subject-matter of the above appeal. In that case also identification parade was held by P.W.7 Shahzad All Naqvi, on the same day. The above appeals were allowed. The arrest and recoveries as alleged were disbelieved and the identification parade was discarded being in violation of law.
68. The above are the reasons for the short order, dated 1-11-1994, whereby the above appeal was allowed, acquitting the appellants.