' MUHAMMAD NASEEM CHAUDHRI, J.--- This judgment is intended to dispose of the following criminal appeals:
(i) Criminal Appeal No,22 of 1988 preferred by Abdullah Shah alias Babar Ali appellant against the State against his conviction.
(ii) Criminal Appeal No,144 of 1988 preferred by Asif Mahmood against the State against his conviction.
(iii) Criminal Appeal No,418 of 1988 preferred by the State against the acquittal of Muhammad Arshad and Jamil Ahmad respondents (present in Court).
2. Both Criminal Appeal No,22 of 1988 preferred by Abdullah Shah alias Babar Ali appellant son of Tassaduq Hussain resident of Ghusia Street, Rajgarh, Lahore and Criminal Appeal No,144 of 1988 preferred by Asif Mahmood son of Muhammad Shafi, resident of Qasim Pur Colony, Multan are directed against judgment dated 16-1-1988 passed by the learned Judge, Punjab Special Court for Speedy Trials (V), Multan whereby both the aforesaid appellants were convicted and sentenced to R.I. For a period of 5 years each and to fine of Rs,2,000 each or in default to undergo further R.I. For 6 months each under section 450/34, Pakistan Penal Code; to R.I. For a period of 10 years each and to fine of Rs,5,000 each or in default of its payment to undergo R.I. For a period of one year each under section 392/34, Pakistan Penal Code and to suffer death penalty each and to fine of Rs,5,000 each or in default of its payment to further undergo R.I. For a period of one year each under section 302/34, Pakistan Penal Code. At this initial stage it is proper to record that due to the enforcement of the Presidential Amnesty Order, 1988 the death penalty awarded to each of the aforesaid both the appellants stands committed to life imprisonment.
3. The facts giving rise to the aforesaid appeals are narrated as under:- ' A dacoity was committed in United Bank Limited, Industrial Estate Branch, Multan on 4-4-1985 at 12-20 p.m. About which Muhammad Irshad, S.-I. Incharge Police Post Muzaffarabad, Police Station Mumtaz Abad, Multan P.W.17 received the information at 12-30 at noon while he was present in Muzaffarabad Town. He straightaway went to the aforesaid Branch of United Bank Limited where he reached at 12-40 p.m. Muhammad Nawaz, Manager U.B.L. P.W.14 working at the relevant time of occurrence handed over to him complaint Exh.P.E. Wherein it was narrated that he (Muhammad Nawaz P.W.14) was present in the aforesaid bank on 4-4-1985 at 12-20 p.m. Alongwith Jamil Akhtar Laghari, Cashier P.W.16, Waheed-ul-Hassan Officer P.W. (not produced) and Sanab Gul, Chowkidar armed with gun (deceased of this occurrence). No customer was present in the bank at that time.
Suddenly three persons entered in the building of the hank. One person was having the height of 5' - 9", whitish coloured with stout and smart body aged 25 years wearing white Shalwar Kameez and armed with a sten gun. The second person was of the height of 5' - 4" with black type colour of body with weak physique, aged 25 years wearing white Shalwar Kameez while armed with carbine.
The third person was of the height of 5' - 7" having white colour with average body aged 21 years wearing light blue Shalwar Kameez having pistol in one hand and a ' Thaila' in the other hand. The three persons arrived on a motorcycle who could be identified by him and the aforesaid other persons. The first person warned loudly and opened the firing with his sten gun on Sanab Gul, Chowkidar standing close to Jamil Akhtar Cashier on the left side. Sanab Gul fell at the spot in injured condition. He and the P.Ws. Bowed down. The second person fired with the carbine and through the issuance of threats made them to stand in hands up position. He inquired about the cash. The staff was taken to the Strong Room. Jamil Akhtar Laghari, Cashier was brought out and the keys of the safe were procured by the accused on threats. He collected the cash from the counter and the cash box. The third, accused placed the cash in the 'Thaila'. Thereafter, the accused confined them in the strong Room and issuing the threats went out of the building of the bank and made good their escape on a motorcycle. The door of the Strong Room was not properly closed which stood opened with a push. They came out and saw that Sanab Gul, Chowkidar was wriggling who expired at the spot. The aforesaid accused had taken away cash amount of Rs,2,60,000 as well as 12 bore gun No,171219 owned by the bank.
4. Muhammad Irshad, S.-I. P.W.17 sent complaint Exh.P.E. Through Iftikhar Ali Constable to Police Station Mumtaz Abad, Multan where formal F.I.R. Exh.P.E./1 was prepared by Muhammad Sharif, Moharrir Head Constable P.W.4. He took into possession the dead body of Sanab Gul and prepared the injury statement as well as the inquest report. He sent the dead body to Civil Hospital, Multan for post-mortem examination through Khadim Hussain, Constable P.W.2. He made the spot inspection. He took into possession blood-stained earth (sealed in a parcel), eleven crime empties P.91/1-11 of sten gun (sealed in a parcel), one crime empty P.92 of .12 bore gun (sealed in a parcel), empty magazine P.93 of sten gun, Bandolier P.94 and seven live cartridges P.95/1-7 of .12 bore gun owned by the bank. He prepared memo. Exh.P.Q. Attested by Muhammad Nawaz P.W.14 and Waheed-ul-Hassan P.W. (not produced). He recorded the statements of the P.Ws. He prepared rough site plan Exh.P.V.. He left the spot at 4-00 p.m. And went in search of the culprits. Near Railway Crossing Nadir Abad on Sher Shah Road, Multan Khadim Hussain, Constable P.W.2 produced before him last-worn clothes P.1 to P.3 with one sealed Phial handed over to him by the medical witness after the autopsy which he (S.-I.) took into possession vide memo. Exh.P.B. Attested by the said Constable. He called Shaukat Hayat, Draftsman P.W.1 who on his request and pointedness of the P.Ws. Prepared site plans Exh.P.A. To Exh.P.A./1 containing the drawings and notes with black ink in the hands of the Draftsman and those with red ink in his hand. Both of them signed the said site plans. Muhammad Irshad, 5.-I. (P.W.17) handed over the sealed parcels to Muhammad Ishaque, Moharrir Constable, Police Post Muzaffar Abad Police Station Mumtaz Abad (not produced as P.W.) on 5-4-1985. However, the investigation of the case was transferred to C.I.A. Multan on 4-5-1985.
Thereafter, the investigation was conducted by Mr. Nasrullah Khan Niazi, Sub-Inspector C.I.A., Multan P.W.18. He joined one Abdul Qadir Shah as the accused and arrested him on whose information he arrested Abdul Basit acquitted accused and one Shahbaz Saleem on 27-6-1985. At that time Abdul Basit acquitted accused was present at General Bus Stand, Multan. His person was searched when the said S.-I. (P.W.18) took into possession pistol P.74, with live cartridges P.74/1-3 vide memo. Exh.P.J. When site plan Exh.P.J./1 of the place of arrest was prepared. On the same date (27-6-1985) Abdul Basit acquitted accused took the S.-I. (P.W.18) to Dera Budhu Tehsil Multan to the house of Muhammad Arshad acquitted accused who was arrested. While under police arrest Muhammad Arshad acquitted accused from his house led to the recovery of suit-case P.80 containing the Shalwar and Kamiz P.81 and P.82 (not stained with blood); one pair of blood-stained Shalwar Kameez P.83 and P.84, one pair of blood-stained Shalwar Kameez P.85, P.86 which were taken into possession vide memo. Exh.P.M. The blood-stained Thaila P.87 the first bloodstained pair of Shalwar Kameez P.83, P.84 and the second pair of blood-stained pair of Shalwar Kameez P.85, P.86 were separately sealed in respective three parcels. Muhammad Arshad accused while under police arrest on the same date from his house led to the recovery of motorcycle (without number plate) P.88 before this S.-I. Which was taken into possession vide memo. Exh.P.N. Muhammad Arshad acquitted accused while under police arrest from an Almirah of his house led to the recovery of an amount of Rs,22,000 comprising of currency notes of different denomination (P.75/1- 100, P.76/1-100, P.77/1-100, P.78/1-180 and P.79/1-4) which were taken into possession vide memo.
Exh.P.L. Muhammad Arshad acquitted accused led to the recovery of revolver P.99 with 6 live cartridges P.99/1-6 from his house which were taken into possession vide memo. Exh.P.K. Site plan Exh.P.N./1 of the places of recovery of motorcycle, aforesaid currency notes and revolver was prepared. The aforesaid memos. Were attested by Akram Khan and Afzal Khan, P.Ws. (not produced). Nasrullah Khan Niazi, S.-I. P.W.18 handed over the three sealed parcels containing the clothes and the parcel containing the pistol to Aziz Ahmad, Moharrir Constable C.I.A. P.W.8 on 27-6- 1985 who on 8-7-1985 handed over the three sealed parcels of the clothes to Dalair Khan, Constable P.W.9 on 9-7-1985 for delivering the same in the office of the Chemical Examiner, Lahore.
Aziz Ahmad, Moharrir Constable P.W.8 delivered the sealed parcel containing the pistol to Muzaffar Khan, Constable P.W.10 on 17-7-1985 which according to Muzaffar Khan was delivered in the office of the Chemical Examiner, Lahore and not in the office of the Forensic Science Laboratory, Lahore.
Abdul Basit, Muhammad Arshad and Jamil Ahmad accused were sent on judicial remand on 28-6- 1986 to District Jail, Multan as their identification parade was to be got conducted.
5. On 1-7-1985 Malik Abdur Rashid, Magistrate 1st Class, Multan P.W.3 supervised the identification parade pertaining to Abdul Basit, Muhammad Arshad and Jamil Ahmad accused. During the identification parade Muhammad Nawaz P.W.14 correctly identified all the aforesaid accused. Jamil Akhtar P.W.16 correctly identified Jamil Ahmad and Muhammad Arshad accused who could not identify Abdul Basit accused. Waheed-ul-Hassan P.W. (not produced) correctly identified Jamil Ahmad and Muhammad Arshad accused. Malik Abdur Rashid, Magistrate 1st Class, Multan P.W.3 prepared his report Exh.P.D. With respect to this identification parade.
6. Abdullah Shah Alias Babar All appellant was arrested from Karachi on the night falling between 25/26-2-1986 who was also the accused of an other Crime Case bearing No,702 of 1985 registered at Police Station Mumtaz Abad, Multan. He was brought to Multan and on 26-2-1986 was sent to the judicial lock-up, District Jail, Multan for his identification parade. Application Exh.P.S. Was submitted on 2-3-1986 for holding the identification parade. On 4-3-1986 Malik Abdur Rashid, Magistrate 1st Class, Multan P.W.15 supervised the identification parade with respect to Abdullah Shah alias Babar Ali accused who was correctly identified by Muhammad Nawaz complainant P.W.14, Jamil Akhtar P.W.16 and Waheed-ul-Hassan P.W. (given up). Malik Muhammad Aslam, Magistrate 1st Class, Multan (P.W.15) prepared the report Exh.P.T. Pertaining to this identification parade containing his certificate Exh . P. T . /1.
7. During the investigation Abdullah Shah alias Babar Ali appellant took the Investigating Officer to House No,11, Ghausia Street, Rajgarh, Lahore from where the said accused received an amount of Rs,7,000 of currency notes P.4 to P.73 from one Muhammad Yameen paid to him on "Qarz-i-Hasna" and produced the same before Muhammad Nasrullah Khan, S.-I. P.W.18 which he took into possession vide memo. Exh.P.F. Attested by Raza Muhammad P.W.6 and Muhammad Javed P.W.
(not produced), both residents of Saman Abad, Lahore.
8. During the investigation Abdullah Shah alias Babar Ali accused named Asif Mahmood appellant as his co-accused. Asif Mahmood appellant was confined in Camp Jail, Lahore in some other case alongwith Muhammad Mushtaq (another accused) who were arrested in this case as well on 28- 7-1986 and were got transferred to District Jail. Multan through application Exh.P.K. Containing the order of the Additional Deputy Commissioner (General/ Additional District Magistrate, Lahore. They were removed to Multan on 28-7-1986 and were sent to judicial lock-up on 29-7-1986 as the identification parade had to be conducted. On 2-8-1986 Malik Muhammad Aslam, Magistrate.
' 1st Class, Multan P.W.15 supervised the identification parade of Asif Mahmood appellant and Mushtaq Ahmad accused. Muhammad Nawaz, complainant P.W.14 correctly identified both of them while Jamil Akhtar P.W.16 identified Asif Mahmood appellant. Waheed-ul-Hassan P.W. (given up) also correctly identified both these accused. Malik Muhammad Aslam, Magistrate 1st Class, Multan P.W.15 prepared report Exh.P.U. Of this identification parade containing his certificate Exh.P.U./1. The physical remand of Asif Mahmood appellant and Mushtaq Ahmad accused were obtained by Nasrullah Khan Niazi, 5.-I. P.W.18 on 10-8-1986. While under police arrest Asif Mahmood appellant led to the recovery of sten gun P.96 with magazine P.97 from his house situated in Qasimpur Colony, Multan lying underneath an iron box placed in a room. Memo. Exh.P.R. Attested by Muhammad Nawaz P.W.14 and Muhammad Saeed, Constable P.W. (not produced) as well as site plan Exh.P.R./1 of this place of recovery were prepared. Both P.96 and P.97 were sealed in a parcel.
This parcel was handed over to Ahmad Bakhsh, Moharrir P.W.11 by the said S.-I. On 12-8-1986 who delivered the same to Muhammad Yaqoob, Constable P.W.12 on 20-8-1986 and he delivered the same in tact in the office of the Forensic Science Laboratory, Lahore.
9. Dr. Iftikhar Hussain Qureshi, Medical Officer, Civil Hospital, Multan conducted the post-mortem examination on the dead body of Sanab Gul, Chowkidar on 4-4-1985 at 4-45 p.m. Sheraz Khan P.W.5, an uncle of the said deceased, identified the dead body. This medical witness found 12 injuries caused with fire-arms on the person of the deceased. He expressed the opinion that the death occurred as a result of injuries Nos.1 and 3 which were sufficient to cause death in the ordinary course of nature collectively as well as individually. He sealed the bullets and multiple small metallic in a phial which alongwith the last-worn clothes of the deceased were handed over by him to Khadim Hussain, Constable P.W.2. He issued carbon copy Exh.P.G. Of the post-mortem report and carbon copy Exh.P.G./1 of the diagram showing the location of the injuries.
10. After completing the investigation the police submitted the challan before the Court of Session at Multan.
11. It is a case of dacoity wherein Mushtaq Ahmad and Abdul Qadir Shah were also joined as the accused who were acquitted under section 265-K of the Code of Criminal Procedure by the leamed Additional Sessions Judge, Multan on 14-5-1987 from whose Court the case was afterwards transferred to the learned Special Judge who finally decided the same.
12. Abdullah Shah alias Babar Ali and Asif Mahmood appellants alongwith the acquitted accused persons namely Muhammad Arshad, Jamil Ahmad and Abdul Basit were charged under sections 450, 396, 302 and 148/149, Pakistan Penal Code who pleaded not guilty and claimed to be tried.
13. At the trial the aforesaid prosecution witnesses appeared in the witness-box and supported the prosecution case. It occurs in the cross-examination of Dr. Iftikhar Hussain Qureshi P.W.7 that he could not distinguish between the pellets and the bullets and that the small pellets have been found by him in injury No,1 and injury No,3 only. Shaukat Hayat, Draftsman P.W.1 stated that he visited the spot on 5-4-1985 on which date he prepared the rough site plans and that his statement was recorded by the police on 17-4-1985. It is proper to express that the site plans Exh.P.A. To Exh.P.A./2 are shown to have been prepared on 17-4-1985. Muzaffar Khan, Constable P.W.10 stated that the sealed parcel containing the pistol was handed over to him on 17-7-1985 which he delivered in the office of the Chemical Examiner, Lahore. When cross-examined he stuck to his aforesaid stand and denied the suggestion that the parcel of the weapon was delivered by him in the office of the Forensic Science Laboratory, Lahore. Ahmad Ghaus Shah, Head Constable P.W.11 stated in his cross-examination that he received two sealed parcels out of which one contained sten gun but he was not aware about the contents of the second sealed parcel and could not state as to whether the said parcel contained some live bullet or some empties.
Muhammad Nawaz complainant, Bank Manager P.W.14 introduced Jamil Ahmad and Abdul Basit as the accused persons who had been standing outside the building of the Bank and who had also left on a motorcycle. It occurs in his cross-examination that he had identified Mushtaq in the identification parade held on 2-8-1986 as one of those three persons who had entered the bank premises and had committed the dacoity. He added that there was much resemblance between Muhammad Arshad accused and Mushtaq identified by him in the identification parade and that he was not sure whether he was Arshad accused or Musthaq accused. He stated that he was not sure whether Arshad accused was the real culprit or Mushtaq. He again stated that the statement made by him in the examination-in-chief that Arshad accused while armed with pistol had come to the bank and committed the dacoity was incorrect and that his statement involving Mushtaq as the accused was correct. He stated that the police did not get identified the cloth bag P.87 and motorcycle P.88 from him during the investigation. He clearly stated that it was Mushtaq who entered the bank premises for committing the dacoity and it was he who was identified by him in the identification parade. He denied the suggestion that hand-bill Exh.D.E. Containing the photographs of Asif Mahmood and Abdullah Shah alias Babar Ali appellants was shown to him by the Investigating Officer before the holding of the identification parade qua each of them. He denied the suggestion that on each occasion of the identification parade of Abdullah Shah alias Babar Ali appellant and Asif Mahmood appellant he was shown their respective photograph by Nasrullah Khan Niazi, S.-I. He denied the suggestion that Asif Mahmood appellant was brought from Lahore to Multan in his company who was shown to him by C.I.A. Police before the identification parade. Malik Muhammad Aslam, Magistrate 1st Class, Multan P.W.15 stated that Asif Mahmood appellant raised the objection during the identification parade that he was shown to the witnesses earlier. Muhammad Irshad, S.-I. P.W.17 stated in his cross-examination that according to inquest report Exh.P.N. Three persons had committed the dacoity, that he prepared the rough site plan Exh.P.V. Of the place of occurrence on 4-4-1985 and that in the inspection note prepared by him on his first visit he had not narrated the fact that two culprits remained outside the bank at the time of the occurrence. He stated that he received the site plans Exh.P.A. To Exh.P.A./2 from the Draftsman on 17-4-1985. It also occurs in his cross-examination that he handed over the sealed parcel of crime-empties P.91/1-11 and a crime-empty of .12 bore, P.92, to Muhammad Ishaque, Moharrir Police Post Muzaffar Abad on 5-4-1985. It is proper to record at this stage that this Muhammad Ishaque, Moharrir has not been produced in evidence to make out the despatch of the aforesaid parcel to the office of the Director, Forensic Science Laboratory, Lahore. Nasrullah Khan Niazi, S.-I. C.I.A. P.W.18 deposed in his cross-examination that the sealed parcels of crime empties had been sent to the Forensic Science Laboratory on 3-5-1985, that the sealed parcel of pistol P.74 was sent to the Forensic Science Laboratory on 14-7-1985 and that the report pertaining to pistol and the parcels of crime empties were sent by the Forensic Science Laboratory to the police at the police station, but he could not tell the date in this regard. He added that he despatched the sten gun to Forensic Science Laboratory on 12-8-1986 which was returned to the police intimating that the crime- empties of the case previously despatched to the Laboratory had been sent back by the Laboratory to the police station and that the Director of Forensic Science Laboratory intimated that the parcel of sten gun should be resubmitted to him if the crime-empties of the case were still available in tact with the police. He stated that thereafter on 21-8-1986 the sealed parcel of sten gun P.96 and the parcel of crime-empties P.91/1-91 and P.92 sealed in another parcel were again sent to the Forensic Science Laboratory.
14. Learned Public Prosecutor adduced in evidence reports Exh.P.X. And Exh.P.Z. Of the Chemical Examiner, Lahore as well as reports Exh.P.AA. And Exh.P.BB. Of the Serologist, Lahore according to which earth, the white coloured bag and the clothes were stained with human blood. He also produced report Exh.P.CC. Of the Director, Forensic Science Laboratory Punjab Police, Lahore according to which the crime-empties were held to have been fired from sten gun P.96. Thus, this report is shown to be in positive.
15. Both the appellants and the acquitted accused were individually examined under section 342 of the Code of Criminal Procedure who stated about their non-participation in the occurrence. They denied the alleged recoveries attributed to them and did not claim the relevant articles including the clothes, motorcycle and cash amounts. Abdullah Shah alias Babar Ali and Asif Mahmood stated that they as well as their photographs were shown to the prosecution witnesses before the holding of the identification parades. They took up the stand that they had been falsely involved due to one Sarbuland Khan. Jamil Ahmad acquitted accused produced Electoral Roll Mark D.O. In the defence. Asif Mahmood accused produced Muhammad Ismail, Head Constable D.W:1 in his defence who had brought daily diary of Police Station Haram Gate pertaining to the period from 26-7-1986 to 18-8-1986. According to report No,42, dated 28-7-1986 Asif Mahmood appellant, Mushtaq and Muhammad Akhtar were kept in the police lock-up in case F.I.R. No,203 of 1985.
According to report No,4, dated 29-7-1986 the abovementioned three persons were taken away from the police station by Ahmad Khan, Constable No,1834 at 8-35 a.m. This D.W.1 proved the relevant copies as Exh.D.O. And Exh.D.P. The other appellant and the acquitted accused did not produce the defence evidence. All of them did not choose to appear in their own defence on oath as contemplated under section 340(2), Cr.P.C.
16. We have noted that the learned trial Court acquitted Muhammad Arshad on the ground that Muhammad Nawaz, Bank Manager complainant P.W.14 exonerated him while standing in the witness-box and in his place introduced Mushtaq Ahmad. Both Jamil Ahmad and Abdul Basit were acquitted with the reasoning that neither they were named in F.I.R. Nor mentioned in the statement of Jamil Akhtar eye-witness recorded by the police who appeared as P.W.16 and that they were not shown in the spot inspection note as well as rough site plan Exh.P.V. Prepared initially and site plans Exh.P.A., Exh.P.A./1 and Exh.P.A./2 prepared and submitted on 17-4-1985 by Shaukat Hayat, Draftsman P.W.1. However, both Abdullah Shah alias Babar Ali and Asif Mahmood appellants were convicted on the grounds that their features were according to those narrated in complaint Exh.P.E., that they were correctly identified in identification parade by Muhammad Nawaz complainant P.W.14 and P.W.16, recovery of sten gun P.96 with report Exh.P.CC. Of Fire-arms Expert and the corroboration by the medical evidence. Feeling aggrieved both Abdullah Shah alias Babar Ali and Asif Mahmood preferred the aforesaid appeals which have been resisted by the State.
17. Against the acquittal of Muhammad Arshad, Jamil Ahmad and Abdul Basit accused persons, Criminal Appeal No,418 of 1988 was preferred which was dismissed at the limine stage to the extent of Abdul Basit acquitted accused while the same was admitted to the extent of the remaining two acquitted accused who were admitted to bail. This appeal has been resisted by both Muhammad Arshad and Jamil Ahmad acquitted accused.
18. We have heard the learned counsel for the parties of all the three appeals and gone through the record before us. For the proper disposal of the dispute in hand we propose to dispose of Criminal Appeal No,418 of 1988 preferred by the State against the acquittal of Muhammad Arshad, Jamil Ahmad and Abdul Basit. It is proper to express that vide order, dated 11-12-1988 the then learned Division Bench dismissed this appeal in limine to the extent of Abdul Basit acquitted accused with the reasoning that there was no evidence of his having entered the bank at the time of dacoity was committed, having looted any money or of having assisted the culprits in any manner. With regard to Muhammad Arshad and Jamil Ahmad respondents/acquitted accused, learned State Counsel argued that Muhammad Arshad accused led to the recovery of attache-case containing blood- stained bag and clothes vide memo. Exh.P.M., led to the recovery of motorcycle P.88 vide memo.
Exh.P.N. And led to the recovery of an amount of Rs,22,000 vide memo. Exh.P.L. From his house. He added that Jamil Ahmad accused led to the recovery of an amount of Rs,22,000 from his house before the police vide memo. Exh.P.O. He continued that Muhammad Arshad and Jamil Ahmad respondents/acquitted accused were correctly identified during the identification parade by Muhammad Nawaz, Manager complainant P.W.14 as well as Jamil Akhtar P.W.16 and that the aforesaid aspect of the matter has been ignored by the learned trial Court without any legal justification. According to him the aforesaid type of evidence is enough to connect both Muhammad Arshad and Jamil Ahmad acquitted accused with the present occurrence and that they cannot escape their criminal liability in the matter. We, however, do not agree with him. As rightly pointed out by the learned counsel for Muhammad Arshad and Jamil Ahmad respondents/acquitted accused; Muhammad Nawaz complainant P.W.14 while standing in the witness-box particularly stated that his statement in examination-in-chief that Muhammad Arshad accused while armed with pistol had come to the bank and had committed dacoity was incorrect, that his statement in cross-examination that it was Mushtaq Ahmad who had committed dacoity and not Muhammad Arshad accused was correct, that he was quite sure that Muhammad Arshad accused was not one of those dacoits who had entered the bank and committed dacoity and that he had identified Muhammad Arshad accused in the identification parade under the mistaken impression as he had great resemblance 'with the aforesaid Mushtaq Ahmad accused. A perusal of the record has made out that Nasrullah Khan Niazi, P.W.18 admitted in his cross- examination that the features of Muhammad Arshad accused did not tally with any features of the persons given in the complaint Exh.P.E. He also admitted that he had mentioned in the report under section 173 of the Code of Criminal Procedure that according to his investigation Muhammad Arshad accused had not gone in the bank alongwith others for committing the dacoity. Since the participation of Muhammad Arshad had become doubtful in view of the statement of Muhammad Nawaz complainant P.W.14 as well as Nasrullah. Khan Niazi, S.-I. P.W.18, the statement of Jamil Akhtar P.W.16 about the identification of Muhammad Arshad and the aforesaid recoveries of currency notes, blood-stained clothes and motorcycle from his house have rightly not been given the weight by the learned trial Court especially when it is simply unnatural that an accused would keep the blood-stained clothes worn by him and his two co-accused in his house more than two months after the occurrence. The aforesaid recoveries have been refuted by the said accused Muhammad Arshad. Thus, we hold that Muhammad Arshad has rightly been acquitted by the learned trial Court. With respect to Jamil Ahmad acquitted accused suffice it to express that Muhammad Nawaz complainant P.W.14 and Jamil Akhtar, Cashier P.W.16 did not mention the presence of any body outside the bank at the time of commission of the alleged dacoity. In complaint Exh.P.E. And copy of statement Exh.D.E. Of Jamil Akhtar P.W.16 recorded by the police the features of Jamil Ahmad acquitted accused are not mentioned. The rough site plan Exh.P.V. Was prepared by Muhammad Irshad, S.-I. Immediately after his arrival at the spot who also prepared the spot inspection note. The Draftsman (P.W.1) prepared site plan Exh.P.A. And submitted before the police on 17-4-1985. In the aforesaid site plans the presence of Jamil Ahmad acquitted accused is not shown outside the bank premises. This aspect of the matter is enough to make us agree with the learned trial Court regarding the order of acquittal of Jamil Ahmad accused. The aforesaid reasoning has made us to hold that the identification of Jamil Ahmad accused in the identification parade held on 1-7-1985 by Muhammad Nawaz complainant P.W.14 and Jamil Akhtar P.W.16 need not be given the weight especially when the mere identification would not be sufficient to prove the case of the prosecution against him. The recovery of an amount of Rs,22,000 attributed to Jamil Ahmad accused has no legal force on the ground that it was not specified that the currency notes P.89/1-70 and P.90/1-70 were taken away by the dacoits. 'The aforesaid recoveries have been refuted by Jamil Ahmad accused. The reasoning adopted by the learned trial Court with respect to the acquittal of Muhammad Arshad and Jamil Ahmad accused/respondent of this appeal preferred by the State has sound tooting and we affirm the same. Consequently we hold that Criminal Appeal No,418 of 1988 has no force and we dismiss the same. Both Muhammad Arshad and Jamil Ahmad respondents/ acquitted accused are present on bail before us. Their bail bonds are cancelled and sureties, discharged.
19. Now we take up Criminal Appeal No,22 of 1988 preferred by Abdullah Shah alias Babar Ali and Criminal Appeal No,144 of 1988 preferred by Asif Mahmood appellant.
20. At the very out set it would be proper to express that the strength of the case of the prosecution revolves around the following ingredients:--
(i) That the features of Abdullah Shah alias Babar Ali and Asif Mahmood appellants were according to those narrated in complaint Exh.P.E. And that they were correctly identified by Muhammad Nawaz complainant P.W.14 and Jamil Akhtar Cashier P.W.16. The respective reports of identification parade are Exh.P.T. Containing Certificate Exh.P.T./1 of Malik Muhammad Aslam, Magistrate 1st Class, Multan P.W.15 pertaining to Abdullah shah alias Babar Ali and report Exh.P.0 containing Certificate Exh.P.U./1 of Malik Muhammad Aslam Magistrate 1st Class, Multan P.W. 15 about Asif Mahmood appellant.
(ii) Recovery of sten gun P.96 attributed to Asif Mahmood appellant supported by positive report Exh.P.CC. Of the Director, Forensic Science Laboratory, Lahore.
(iii) Medical evidence,on the basis of the deposition of Dr. Iftikhar Hussain Qureshi, Medical Officer, Civil Hospital, Multan P.W.7 who found pellets and bullets from the dead body of Sanab Gul which made out that two types of fire-arms were used during the occurrence.
21. Both the learned counsel for the appellants argued that the narration of the features of the appellants in complaint Exh.P.E. Is of no salubrious effect in favour of the prosecution case because Muhammad Nawaz complainant P.W.14 has specifically stated that he had identified Muhammad Arshad acquitted accused in the identification Parade under the mistaken impression as he had great resemblance with Mushtaq Ahmad accused (not challaned), that Nasrullah Khan Niazi, S.-I.
P.W.18 admitted in his cross-examination that the features of Muhammad Arshad acquitted accused did not tally with any features of the three persons given in the complaint Exh.P.E., that the acquitted accused Muhammad Arshad was not named as the person who was identified when Muhammad Nawaz complainant P.W.14 stood in the witness-box and that the photographs of both Abdullah Shah alias Babar Ali and Asif Mahmood were shown to different persons when Nasrullah Khan Niazi, S.-I. Visited different places of Lahore on 4-8-1985 and visited different places of Rawalpindi on 5-8-1985. They prayed for making a perusal of the case diary maintained by the police during the investigation. On the contrary learned State Counsel laid the emphasis that both Muhammad Nawaz complainant P.W.14 and Jamil Akhtar Cashier P.W.16 are respectable persons being bank employees who have rightly been believed by the learned trial Court about the correct identification by them of both the appellants/convicts. At the very out-set we would express that it is not a case of ocular account with identification and names of the accused wherein the status of the witnesses can be considered and given the weight by placing the reliance on their statements.
In the instant matter both the appellants at the time of their identification parade stood up the stand that they were shown to the witnesses before the identification parade. We have made a perusal of the aforesaid case diary dated 4-8-1985 and 5-8-1985 prepared by Nasrullah Khan Niazi, S.-I. P.W.18 wherein it is specifically narrated that while respectively visiting Lahore and Rawalpindi the photographs of Abdullah Shah alias Babar Ali and Asif Mahmood appellants were shown to different persons and informants at both the aforesaid places. This aspect of the matter has made out that Nasrullah Khan Niazi was in possession of photographs of both these appellants-convicts. The entry in daily diary dated 28-7-1986 copy Exh.D.O., of Police Station Haram Gate and the entry in daily diary dated 29-7-1986, copy Exh.D.P. Of Police Station Haram Gate, Multan have been gone through which have made out that Asif Mahmoou appellant was detained therein and was not immediately sent to judicial lock-up District Jail, Multan. Both the appellants- convicts raised the objection before the concerned Magistrate who supervised the identification parades that they were shown and the aforesaid material is enough to justify their aforesaid stand/defence. Exh.D.E. Is a hand-bill containing the photographs of both Abdullah Shah alias Babar Ali and Asif Mahmood appellants (alleged assailants of this case) said to have been got published by and distributed on behalf of the Senior Superintendent of Police, Multan. This Exh.D.E.
Contains the photographs of both these appellants. Even though its distribution has been denied by the Investigating Officer Nasrullah Khan Niazi P.W.18, yet his denial in the matter can be ignored on the simple ground that no accused who has become' a fugitive of law would like to get published the aforesaid type of hand bills containing the photographs(s) to get himself entrapped.
The Investigating Officer P.W.18 as expressed and held above, was in possession of the photographs of both these appellants and the publication of the same on hand-bill Exh.D.E. Can well be expected from the police as all types of efforts were being made for the arrest of the appellants on the grounds of being involved in a bank dacoity case. The occurrence took place on 4-4-1985 while the identification Parade pertaining to Abdullah Shah alias Babar Ali appellant was conducted on 4-3-1986 and the identification parade with respect to Asif Mahmood appellant was held on 2-8-1986 . As held above the photographs of both the appellants were in possession of Nasrullah Khan Niazi, S.-I. P.W.18. The aforesaid interval in between the date of occurrence and the respective date of holding of the Identification Parade when the Investigating Officer had the photographs of both the appellants with him have made us to hold that no sanctity can be granted to the Identification Parades, and thus, this ingredient of Identification Parades is devoid of legal force which is liable to be discarded. WcPpass an order accordingly. Thus, the respective Identification Parade pertaining to the respective appellant need not be given the weight.
22. Regarding the recovery of sten gun P.96 supported by positive report Exh,P.CC. Of the Arms Expert the contentions of the learned counsel for Asif Mahmood are that the aforesaid recovery is violative of section 103 of the Code of Criminal Procedure as the same was attested by Muhammad Nawaz complainant P. W.14 while no person from Qasimpur Colony, Multan was called and joined therein at the alleged time of recovery, that no weight can be granted to the alleged recovery made after long delay on 11-8-1986 from the house easily accessible to everybody living jointly therein, that the place of recovery was such that the possession of sten gun P.96 could not be expected to be with the exclusive knowledge of Asif Mahmood appellant and that the delivery of sealed parcel containing crime empties P.91/1-11 matched with sten gun P.96 has not been established because Muhammad Irshad, S.-I. P.W.17 is said to have handed over the sealed parcel containing crime empties P.91/1-11 to Muhammad Ishaque, Moharrir, Police Post Muzaffar Abad, Police Station, Mumtaz Abad who has not been produced in evidence. On the contrary, learned counsel for the State canvassed that, in the circumstances of the matter, the recovery of sten gun P.96 stands proved and that the statement of Nasrullah Khan Niazi, S.-I. P.W.18 has proved that parcel containing crime empties P.91/1-11 was sent to the Forensic Science Laboratory. Our view is that the reasoning adopted by the learned counsel for the appellant has to prevail. It is the admitted position that no person from Qasimpur Colony, Multan was called and joined at the alleged time of recovery of sten gun P.96. There is no evidence on record to make out that sten gun P.96 was lying concealed within the exclusive knowledge of Asif Mahmood appellant under the iron box lying in the living room of the house which the inmates could easily visit. It means that the exclusive possession of sten gun P.96 of Asif Mahmood appellants has not been established. It has been commanded by the Honourable Supreme Court of Pakistan in Arif Ali v. Muhammad Ramzan alias Janan and 4 others 1991 SCM R 331 that the recovery made after long delay from a place accessible to every one in the house could not be used as a corroborative piece of evidence. This judgment was announced in a murder case. According to the ruling published as Iftikhar alias Gattu and another v. The State 1994 M LD 988 (Lahore) the recovery of the weapon of offence from a house which is neither in the ownership of an accused nor in his exclusive possession has no legal force which has not to be relied upon. The idea behind the aforesaid reasoning is that any incriminating article lying in the house wherein there was joint living cannot be held to be in exclusive possession of the appellant and also within his exclusive knowledge and the alleged type of recovery, as such, cannot be given any weight to make Asif Mahmood appellant criminally liable in the matter. The aforesaid type of recovery is admissible under Article 40 of the Qanun- eShahadat Order, 1984 and without having been established the same cannot be entitled to any legal weight. Further, Muhammad Irshad, S.-I. P.W.17 is said to have handed over the sealed parcel containing crime-empties P.91/1-11 to Muhammad Ishaque, Moharrir Constable, Police Post Muzaffar Abad, Police Station Mumtaz Abad who is said to have kept the same in the Malkhana.
However, he has not been produced in evidence. No doubt Nasrullah Khan Niazi P.W.18 deposed that the aforesaid parcel was received back and was after wards sent to the Director Forensic Science Laboratory, Lahore but about the police having received the same from the aforesaid office no evidence has been produced and further that where the said parcel was preserved.
Ahmad Ghaus H.C. P.W.11 stated that he sent two sealed parcels one containing the sten gun and the other containing the live bullets handed over to him by Nasrullah Khan Niazi, S.-I. Through Muhammad Yaqloob Constable P.W.12 to the Forensic Science Laboratory. It means that he did not send the parcel containing the aforesaid crime-empties specifically exhibited as P.91/1-11 earlier.
This missing link about the despatch of crime empties P.91/1-11 is enough to make out that from sten gun P.96 the fake firing was effected and thereafter, the same was sent to the Forensic Science Laboratory and that the initial crime empties were not despatched there. This aspect of the matter has made us to hold that the report Exh.P.CC. Of the Fire-arms Expert has no legal weight which cannot be relied Upon and is liable to be ignored. The only irresistible conclusion which can be drawn from the aforesaid state of affairs and reasoning would be that the ingredient of recovery of sten gun P.96 supported by report Exh.P.CC. Of the Fire-arms Expert has no legal force so as to connect Asif Mahmood Appellant with the present occurrence.
23. No doubt Sanab Gul expired during the bank dacoity. However, in view of what has been expressed and held above, the medical evidence is of no legal value so as to connect both the appellants with the occurrence. In view of the aforesaid analysis of evidence and findings we hold that the prosecution has failed to connect Abdullah Shah alias Babar Ali and Asif Mahmood appellants with the present occurrence who are held to be innocent and entitled to be acquitted.
24. We, therefore, accept both the aforesaid appeals preferred by them, set aside the impugned judgment and acquit them. They were detained in jail to undergo the sentences awarded to them and we had passed the order of their release through our short order, if not required to be detained in any other case. This is our detailed judgment for the disposal of the aforesaid appeals on merits.