1. ' ABDUL WAHEED SIDDIQUI, J.--- Appellants have assailed the judgment, dated 7-6-1995 by Additional Sessions Judge/Izafi Zila Qazi, Samar Bagh, District Dir whereby he has convicted Muhammad Israr, Rehman Bacha alias Remanay and Rehmatullah (appellants Nos.1, 3 and 6) under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 hereafter called the said Ordinance and has punished them with amputation of right hand from the wrist and left foot from the ankle of each one of them as a Hadd; also by the same judgment Muhammad Riaz, Abdul Aziz and Shah Muhammad alias Shamtey (appellants Nos.2, 4 and 5) have been convicted under section 20 of the said Ordinance and has sentenced each one of them to R.I.
2. Of 10 years, fine of Rs,5 lacs, in default to payment of which to undergo further R.I. For 2-1/2 years, also each one of them shall pay under section 544-A, Cr.P.C. To complainant and ocular witnesses at the rate of Rs,2 lacs to each sufferer of mental anguish, in default of the payment of which to undergo further imprisonment for six months. All the appellants have been acquitted from charge under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979.
3. ' The trial Court has submitted proceedings to this Court for confirmation of execution of Hadd sentence under section 374, Cr.P.C. Read with section 24 of the said Ordinance under Criminal Reference No,1/I of 1995. We propose to dispose of both the appeal and Criminal Reference together.
2. Story of the prosecution, succinctly, is that one Attaur Rehman (P.W.1) handed over a written complaint (Exh.P.A./1) to Khaista Rehman (P.W.17), S.H.O., Police Station Munda, District Dir, on 1-1- 1995 at Khazana while hd was on mobile duty. This complaint became locus standi of F.I.R.
4. (Exh.P.A.), dated 1-1-1995 lodged at 13-00 hours. The complainant has narrated that being an accountant in the office of Sub-Divisional Education Officer, Jandol it is his duty to collect the salaries of the employees of the said Sub-Division from National Bank, Timur Garh. On 1-1-1995, he accompanied by driver Noor Zaman (P.W.2), went to the said Bank for the said purpose in a Government jeep where he came across Shahzada Jan, Sub-Divisional Education Officer, and Chowkidar Ahmed Jan (P.W.3). He received Rs,12 lacs and 68 thousand, out of which he distributed Rs,15,000 to some of the employees available in the Bank, and the remaining cash, packed in a white plastic bag, was kept in the jeep. Then the complainant alongwith driver, Chowkidar and S.D.E.O. Proceeded towards Samar Bagh and on the way at Khazana S.D.E.O. Stepped down and went towards his house. While proceeding further towards Samar Bagh on the main road, the remaining three persons reached Munda Timur Garh at Gurirah Kotke, at about 12-30 hours, a car came suddenly from the opposite side, parked on the wrong side and blocked the road. Five armed persons surrounded them, made them come out and three of the armed persons at the point of arms, made them to stand on one side. Two of the armed persons went inside the jeep and took out the bag containing cash. Then all the five climbed their car and proceeded towards Timur Garh. The complainant party followed the car and on their way they made a uniformed Hawaldar sit with them and followed the culprits up to Khazana. In the meanwhile, the offenders had left the car and had made good on foot towards Ilaqa Ghair. Since a written complaint was already lodged with Khaista Rehman (P.W.17), S.H.O. While he was on mobile duty, he also followed the culprits. The motor car No,CA-1655 (P.1) left by the offenders was searched from inside by the said S.H.O. And he found inter alia, another incriminating article from the said car namely 1/2 bottle of liquor (P.2).
5. ' After investigation appellants, six in number, were arrested and challaned. Three other co- accused were shown in the column for absconders in the challan. They have been declared as such under section 512, Cr.P.C. By the trial Court. The appellants were charged under Article 17(3) of the said Ordinance and Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 to which they did not plead guilty.
6. ' During trial prosecution examined 22 P.Ws. All the six appellants gave statements under section 342, Cr.P.C. Declined to be examined on oath under section 340(2), Cr.P.C. And did not produce any witness in their defence.
3. We have heard the counsel for appellants and State. The counsel for appellants has contended that complaint (Exh.P.A./1) and F.I.R. (Exh.P.A.) is making a reference to 5 unidentified culprits, depositions of the only ocular witnesses i,e, P.W.1 P.W.2 and P.W.3 also indicate five offenders; but the prosecution has challaned 9 persons out of whom 6 are the present appellants and 3 are absconding and this conduct of prosecution creates doubt especially when the addition of 4 more culprits remains an unexplained mystery; that all the recoveries have been effected in violation of the provisions of section 103, Cr.P.C. As these recoveries are either indirect or witnessed by police officials only; that identification of appellants has been made in transgression of the established principles in this regard; that confessions are extracted after torture; that except three employees of education who might be cogs into the mechanism of a criminal conspiracy of some higher ups to devour the huge amount, not a single witness is ocular; that chit (P.4) allegedly recovered from appellant Muhammad Israr specifies shares of accomplices, but no recoveries have been effected accordingly; that the chit was recovered from appellant Muhammad Israr by Khaista Rehman (P.W.17) on 11-1-1995 whereas he was given in his custody one day later on 12-1-1995; that F.I.R. Does not indicate any identifying marks although the culprits had neither hidden their faces nor camouflaged; that taxi driver Muhammad Wali was not produced and has been withheld although he could have been the most important and star witness as he was the first person to unfold the mystery of unidentified culprits; that recovery is not directly effected from appellants; that the roles of Babaji (P.W.13), Haji Bahadur, M.P.A. And Shahzada Jan, S.D.E.O. Creates doubts; that there are substantial contradictions among P.Ws.; that Banks in Pakistan issuing cash to customers do not mention in their records numbers of notes, yet Fazal Azeem Khan (P.W.19), the Bank Manager, is giving details of numbers of notes issue to the complainant and then his testimony is not explicit; that owner of the car used in commission of the crime remains shrouded in mystery; that the principles of Tazkyat-ulShahood are not applied and therefore, Hadd punishment is not called for; that the confessions are retracted yet these have been believed by the trial Court; that allegedly cash was received as salary for the employees of education, but it includes salaries of doctors which generates mysteries and creates doubt; that the site plan was prepared on the pointation of the accused which is in violation of the principles; that the impugned judgment has its locus standi on conjectures and surmises; that the confessions have not been put specifically to the appellants in their statements under section 342, Cr.P.C.; that reliance has been placed, inter alia, on 1985 SCMR 721, 1993 PCr.LJ 2540, PLD 1991 FSC 186, PLD 1986 SC 741, PLD 1995 FSC 20, PLD 1993 Pesh. 32, 1992 PCr.LJ 1171, PLD 1988 FSC 58, PLD 1994 FSC 24, 1994 PCr.LJ 409, 1989 PCr.LJ 1959, 1993 PCr.LJ 217, PLD 1996 Kar. 345, 1993 SCMR 2059, 1976 PCr.LJ 243, 1969 SCMR 269. Written arguments have also been filed by the counsel for appellants.
7. ' The counsel for State has outrightly conceded that this is not a case in which Hadd punishment can be inflicted. However, he has vehemently argued that all the appellants are liable to Ta'zir punishment. He has contended that testimony of ocular witnesses i,e, P.Ws.1, 2 and 3 inspires confidence; that confessional statements of 3 appellants are inculpatory, and although retracted are. Corroborated by other evidence on the record; that the provisions of 103, Cr.P.C. Do not apply on recoveries which have been effected on the pointation of the accused or under the circumstances of non-cooperation by the respectable of locality, that the impugned judgment has covered legally all the objections regarding identification. He has supported the impugned judgment to the extent of Ta'zir punishment for all the appellants.
4. We propose to deal, firstly, with the contention of the learned counsel for appellants that in the circumstances of the present case, Hadd punishment is not called for whereas appellants Nos.1, 3 and 6 have been convicted as such. The major objection of the defence in this regard is that principles of Tazkiya Al-Shuhood) have not been applied on the prosecution witnesses on whom relidice has been placed by the trial Court while imposing Hadd punishment.
8. ' Relevant passage of the impugned judgment reads as under:- {{URDU TEXT}} ' Section 7 of the said Ordinance reads:-- Proof of theft liable to Hadd.<.u>--- The proof of theft liable to Hadd shall be in one of the following forms, namely--
(a) the accused pleads guilty of the commission of theft liable to Hadd; and
(b) at least two Muslim adult male witnesses, other than the victim of the theft, about whom the Court is satisfied, having regard to the requirements of Tazkiya Al-Shuhood, that they are truthful persons and abstain from major sins (Kabira), give evidence as eye-witnesses of the occurrence: ' Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslim: ' Provided further that the statement of the victim of the theft or a person authorized by him shall be recorded before the statements of the eyewitnesses are recorded.
9. ' Explanation.-- In this section, Tazkiya Al-Shuhood means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness." '
10. ' Two Muslim adult male witnesses, other than the victim of the theft, to whom reference has been made in the abovequoted passage of the impugned judgment are none else but Noor Zaman (P.W.2) and Ahmed Jan (P.W.3) who are also the only ocular witnesses of the alleged offence other than the complainant Atta-ur-Rehman (P.W.1) himself. For the purposes of the Hadd punishment, the trial Court had to complete all the mandatory requirements mentioned in clause (b) of Article 7 of the said Ordinance specially when the accused/appellants had not pleaded guilty.
11. ' The requirements under clause (b) of Article 7 supra are:--
(a) The two witnesses, other than the victim of the theft should be:
(i) Muslims.
(ii) Adults.
(iii) Males.
12. (b)(i) The Court is satisfied, having regard to the requirements of Tazkiya Al-Shuhood, that the witnesses are truthful persons and abstain from major sins (Kabair)
(ii) the two witnesses give evidence as eye-witnesses of the occurrence.
13. ' We have pondered about these statutory requirements regarding P.W.2 and P.W.3 and deal with each one of them separately.
14. ' P.W . 2 Noor Zaman son of Sher-e-Azeem: ' He has deposed on oath. No suggestion is made in the cross that he is not a Muslim within the meaning of section 260-(3) of the Constitution of Pakistan. Consequently the conclusion drawn is that he is a Muslim. He has declared his age to be 35 years. No suggestion is made in cross that he being a male, was less than 18 years of age or had not attained puberty within the meaning of Article 2(a) of the said Ordinance, 1979 on the date of occurrence. The conclusion is that he is male and adult. He has clearly given evidence as an eye-witness. Now the only question which remains is as to whether the trial Court satisfied itself that he was truthful and abstained from major sins (Kabair) having regard to the requirement of Tazkiya Al-Shahood and whether the two so-called ocular witnesses were independent.
15. ' Tazkiya Al-Shahood has been explained by the said Ordinance as the mode of enquiry adopted by a Court to satisfy itself as to the credibility of a witness. Before taking up the principles enunciated by the superior Courts of Pakistan concerning the adoption of mode of enquiry for Tazkiya Al-Shahood, inter alia, cited by the defence, the fact which has stricken our mind is that 12 P.Ws. Were examined by the trial Court on one single date i,e, 4-5-1995 which included the first three ocular and material witnesses. Attaur Rehman (P.W.1), the complainant, during examination- in-chief has deposed:- {{URDU TEXT}} ' It appears from order-sheet entry that on 4-5-1995 apart from Israr, Rahmate and Aziz other three co-accused were present in the Court-room under custody but the three named in the deposition were identified by the complainant to be those three out of five who had taken active, explicit, and direct role in the offence of Haraabah. Same were the persons who were identified by him before Tehsildar Samer Bagh during the identification parade.
16. ' Noor Zaman (P.W.2) in his deposition has repeated the active role of 5 dacoits, but simultaneously has deposed:-- {{URDU TEXT}} ' Out of the appellants present he has only identified 2 in the trial Court but has shown ignorance about their names although he claims to be present at the time of occurrence and is an ocular witness on whom trial Court has relied for inflicting Hadd punishment. Ahmed Jan (P.W.3) also repeats the deposition of P.W.2, but also deposes:- {{URDU TEXT}} ' The identification parade to which reference is made by all the three ocular witnesses are in fact two in number. One dated 16-1-1995 (Exh.4/2) which concerns identification of appellant Muhammad Israr who was identified by P.W.1 and P.W.3 only. Another dated 25-1-1995 (Exh.4/1) which concerns identification of appellants Rahmatullah and Rahman Bacha who were identified by all the three star witnesses i,e, P.W.1, P.W.2 and P.W.3. Once so, then the mystery which is created here is that Attaur Rehman (P.W.1), the complainant, is identifying with names Israr, Rahmate and Aziz in his that piece of deposition in the trial Court which is reproduced above. P.W.2 is identifying two of them in the trial Court but not disclosing the names and P.W.3 is indicating three of them whom he had already identified in the identification parade but is not naming them in the trial Court. Under what circumstances then Rahman Bacha alias Rahmane has been substituted by Aziz (i,e, appellant Abdul Aziz) in the Court by Attaur Rahman (P.W.1) the complainant and P.W.3 is also indicating to those three in the Court who are indicated by P.W.1. We have tried to find out any explanation regarding this factor in the impugned judgment, but silence prevails.
17. ' This is a stand where from we have very cautiously taken up the appreciation of evidence, the case-law cited and the universally accepted principles of natural justice for a safer dispensation of justice. Now we take up the objection that the mandates of Tazkiya Al-Shahood have been violated. Principles enunciated by Supreme Appellate Court at placentium F and G of 1993 PCr.LJ 2540 reads:- "To carry out enquiry in the context of Tazkiya-ul-Shahood, it is necessary to appoint at least one 'Muzakki' for each eye-witness who has to hold an enquiry about his truthfulness and submit his report to the Judge and at the time of the examination of the witness he has to be present in the Court. Even the 'Muzakki' has to be subjected to searching questions by the Judge in order to ascertain his conduct and character. In the instant case, no Muzakki' (purgator) was appointed or deputed by the learned trial Judge at all to verify the truthfulness of the eye-witnesses, and as such the requirements of Tazkia-ul-Shahood, which was a condition precedent for the conviction of Shahid Iqbal appellant for the commission of 'Haraba' liable to Hadd punishable under section 17 of the Ordinance VI of 1979, was not complied with. Therefore, his conviction and sentence under section 17 ibid is not sustainable and are hereby set aside."
18. ' In the same judgment, an extension of the abovementioned principle has been carried by their Lordships in the following words at placentium D, E, G and H:-- ----Ss. 17 & 20---Penal Code (XLV of 1860), S.392/34---Appreciation of evidence---Involvement of accused in the commission of robbery on the date, time and place alleged by prosecution and later his having been found in possession of substantial portion of the stolen amount stood amply proved---All our occupants of the van including its driver were either ctually or constructively in the custody of the money which was snatched away by the culprits from all of them after actually putting them under fear of death by pointing fire-arms at them and, therefore, they all were the victims of the crime and none of them was independent witness to depose as a witness other than the victims of crime satisfying the requirements of Tazkiya Al-Shahood---Evenherwise no 'Muzakki'
19. (purgator) was appointed or deputed by the Trial Court at all to verify the truthfulness of the eye- witnesses and as such the requirements of Tazkiya Al-Shahood, which was a condition precedent for the conviction of the accused for the commission of 'Haraabah' liable to Hadd punishable under S.17 of the Ordinance were not complied with---Conviction and sentence of accused under S.17 of the Ordinance were consequently set aside and instead he was convicted under S.20 of the Ordinance read with S.392, P.P.C. And sentenced to undergo ten years' R.I. With fine---Conviction and sentence of accused under 5.341, P.P.C. Were, however, remitted being a minor offence having been merged into the major offence of robbery." (Underlines supplied).
20. ' Their Lordships of the Supreme Court of Pakistan, Shariat Bench, have enunciated detailed principles on this point at placentium B of the case cited as NLR 1987 SD 8 which are quoted verbatim: "The expression Tazkiya AlShahood is found in section 7 where it is required that two adult male witnesses other than the victim of the theft should testify about theft". The condition laid down in section 7, clause (b) is that these two witnesses must have satisfied the requirements of Tazkiya- al-Shuhood so as to adjudge them as truthful persons and those who abstain from major sins (Kabair). In the explanation to the section, Tazkiya-al-Shuhood although not clearly defined is stated to mean "the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness". The expression ' the mode' signifies that it is one or more of the modes which are assumed to be well-known. Tazkiya-al-Shuhood, according to all accepted versions of the definition, can be done in either or both of the two modes: One, 'Open, the other, 'secret'.' See Islam Ka Qanoon-e- Shahadat (Vol. 1) by S.M. Matin Hashmi, page 146, para. 82; page 149 para. 89, para. 308 para. 238 wherein reference have been made to Fatawa-i-Alamgiri and AlTashri-ul-Junai. The explanation has not changed---the content of the opinions of the Fuqaha on the rules applying to the each mode but it has left the selection of the mode/s of inquiry to the discretion of the Court. And we may add that the omission of the word 'either' conveys that the Court can adopt either of the two recognised modes or both of them. It cannot devise any other mode for its own convenience. In this case, the learned counsel is right in pointing out that Tazkiya-al-Shuhood purported to have been done by the trial Court falls short of the known standards. The learned Judge claims to have done open and secret inquiry. For both the inquiries there are defined procedure to follow. He treated the question as of little importance and recorded the statements of the witnesses themselves in order to ascertain that they satisfy the accepted standard. No one who has deposed or who has come to depose for the prosecution in a case of Hadd would be willingly disclosing that he has some defects of character or that he is not a truthful person. No doubt it is necessary to put searching questions to him and cross-examine him so as to discover what he wants to conceal from the Court. The statement of the witness by itself is not enough to give the verdict in his favour.
21. There is need for Muzakki whose number is not fixed. But even if one Muzakki -- (a referee and the person who gives evidence about truthfulness of the witness) is examined for each witness, he should be present when the witness is being subjected to questioning for Tazkiya-al-Shuhood. See Islam Ka Qanoon-e-Shahadat by Maulana Muhammad Matin Hashmi, page 146, para. 82 --- refers Fatawa-i-Alamgiri. The Muzakki should also be questioned about the antecedents and character and dealings. These elements amongst other very important ones are essential. They can easily be found. All the books which have already been referred made references to these matters. In addition reliance may be placed on Fatawa-e-Alamgiri (Vol.V), Qanooni Kutab Khana, Urdu Bazar, Lahore and Islam Ka Qanoon-e-Shahadat (Vol.I) by Maulana S.M. Matin Hashmi, wherein reference is also made to Moeen-ul-Hakki. In this case the only referred which, it seems, the learned trial Judge nominated to test the veracity and quality of the eye-witnesses was the Muharrir of the police station who sent a report that there was nothing against them in the record of the police station. This hardly falls within any modes of the Tazkiya-al-Shuhood. Even if a question had to be asked from the Moharrir in the secret inquiry it should have been addressed to him in a closed envelope asking various questionsto which the Moharrir would have answered after making due inquiry in this behalf and then the Moharrir should also have been examined regarding his report.
22. The learned trial Court thought it enough that the report of the Moharrir was endorsed by an A.S.-I.
23. This to say the least was the mockery of the Tazkiya-al-Shuhood. We, therefore, reject the same and hold that no proper Tazkiya Al-Shuhood was done of the two eye-witnesses. Therefore, the appellant is entitled to acquittal.
24. ' In Fatawa Hindia (Alamgira) Urdu translation by Syed Ameer Ali, Vol. 5 publication Lahore, p.342 following passage is worth considers. {{URDU TEXT}} {{URDU TEXT}} ' First of all it is clear from the underlined principle enunciated by the Supreme Appellate Court cited above as 1993 PCr.LJ 2540 that in the circumstances of the present case, the three first P.Ws.
25. Were occupants of the car and were either actually or constructively in the custody of the money which was snatched away by the culprits from all of them after actually putting them under fear of death by pointing fire-arms and, therefore, they all were the victims of the crime and none of them was independent witness to depose as or witness other than the victims of crime satisfying the requirements of Tazkiya AlShuhood.
26. Even otherwise, Attaur Rahman (P.W.1), the complainant, has identified in the open Court Abdul Aziz and not Rahman Bacha alias Rahmane and two other so-called material witnesses for the purposes of Hadd have not taken the names, but the impugned judgment has substituted Rahman Bacha for Abdul Aziz, therefore, the case of Hadd falls within the purview of, inter alia, the following Sunan ( ) and precepts () of the first generation after the Holy Prophet (S.A.W.S.) which all culminate into the conclusion that a slight doubt sets aside Hadd punishment and that the Hadd C punishments should be avoided as much as possible:-- {{ARABIC TEXT}} "Hazrat Aisha (R.A.) narrated that the Holy Prophet (S.A.W.S.) directed, 'Do away the Muslims from Hudood as much as possible and in case he could get out of Hadd (conviction), provide him with his freedom of movement. This is because if authority makes error in acquittal, it is better than committing error in conviction. (Jamie Tirmizi, Kitab-ul-Hudood).
27. ' Abu Huraira narrated that the Holy Prophet (p.b.u.h.) ordained that whenever it is possible, avoid the Hudood (punishments). (Ibn-e-Majja) (Kitab-ul-Hudood). {{ARABIC TEXT}} ' Zuhuri said 'Avoid Hudood (punishments) due to every type of doubt' (Musannaf by Ibn-e-Abi Shaiba, Vol. 9) (Kitab-ul-Hudood).
28. The principles about purgation (Tazkiya) have not at all been applied on P.W.2 and P.W.3 who are, even otherwise, as proved above, themselves victims and cannot be termed as independent witnesses. The learned State Counsel has also conceded that it is so.
29. ' In view of this situation, we hold that the conviction of appellant Muhammad Israr, Rahman Bacha alias Rahmane and Rahmatullah alias Rahmate under section 17(3) of the said Ordinance as a Hadd is not called for and is hereby set aside.
5. ' Now remains the case of all the six appellants for consideration as to whether prosecution has proved its case beyond reasonable doubts for conviction under section 20 of the said Ordinance.
30. Following are the main pillars on which the edifice of the story of prosecution is erected:--
(i) Judicial confessions.
(ii) Identification parades.
(iii) Recoveries.
(iv) Evidence of substantial witnesses i,e, P.Ws.1, 2, 3, 13, 17, 18 and 19.
6. So far as the evidence of judicial confessions of the appellants Muhammad Israr, Shah Muhammad, Abdul Aziz, Rehmatullah, Muhammad Riaz and Rehman Bacha before Akbar Khan (P.W.16) A.C./S.D.M., Jandool are concerned, the same are assailed on various grounds. Before entering the arena of these grounds, it is pertinent that the date of arrest of each one of the appellants vis-a-vis the date of judicial confession under custody is recorded:-- Appellant Date of arrestDate of confession Muhammad Israr 11-1-1995 19-1-1995 Shah Muhammad alias Shamte16-1-1995 23-1-1995 Rehmatullah 19-1-1995 25-1-1995 Abdul Aziz 19-1-1995 25-1-1995 Rehman Bacha 21-1-1995 30-1-1995 Muhammad Riaz 22-1-1995 30-1-1995 ' The first ground on which these retracted confessions are assailed is that these were obtained under torture and therefore, are not voluntarily made. Muhammad Akber Khan (P.W.16) A.C. And S.D.M., Jandool is deposing about confession of appellant Shah Muhammad alias Shamte as {{URDU TEXT}} ' Exhibit 16/4 contains a question and answer as under:-- "Q. Are you making it of your own free will and without the compulsion, coercion, torture, inducement or promise of anybody including police.
31. A. Yes."
32. ' But this entire piece of examination-in-chief and the relevant exhibit is contradicted by the same witness during cross in the following words:- {{URDU TEXT}} ' This piece of evidence is casting doubts on the entire deposition of P.W.16 as it is clear that being under oath, he has indulged into the offence of false testimony.
33. ' We are conscious about a ruling at placentium in case cited as PLD 1994 FSC 24 enunciated by one of us (Dr. Fida Muhammad Khan, J.), which reads:-- "However, when it is retracted or is alleged to have been recorded under pressure, threat or torture etc. a reasonable doubt is created about its veracity and the Courts are bound to receive the same with great caution. In all such cases the doubt needs to be dispelled either by some other reliable evidence or strong corroborative circumstance, in the absence of which intrinsic worth of the confessional statement remains suspicious and for that reason it alone cannot form basis for conviction."
34. ' In this context we are fortified by Full Bench judgment of the Supreme Court cited. As 1969 SCMR 442 and 1993 SCMR 1822. We have also taken a judicial notice of the fact that on the one hand this Muhammad Akbar Khan (P.W.16) is deposing about Shah Muhammad:-- {{URDU TEXT}} ' But practically, what he has done is highlighted by Shamsur Rahman (P.W. 18), Inspector C.I.A., Timurgarh in the following piece of deposition during cross:-- {{URDU TEXT}} ' This entire circumstance, creating doubts and completely demolishes the evidentiary value of these so-called judicial confessions, when second most important ground about the competency of the Magistrate recording the same is attacked, Akber Khan (P.W.16) A.C. And S.D.M., Jandool has himself admitted that he was not the competent trial Court in such like case. During cross he is deposing:- {{URDU TEXT}} since this Magistrate was admittedly not a trial Court for the present case, we hold that he was not competent to take this exercise of recording confessional statement. In this context we are persuaded by 1992 PCr.LJ 412 in which Mr. Justice Muhammad Bashir Khan Jehangiri (now Judge of the Supreme Court of Pakistan) has enunciated the following principle:-- "Confession-- ' Confession in cases under Hudood laws must be recorded by Trial Court---Magistrate would not be competent to take that exercise."
35. ' We are also conscious that one of us (Muhammad Khiyar Khan, J.), had already expressed his opinion in this respect while formulating the following principle of law cited as PLD 1993 Pesh. 32: "S.7---Criminal Procedure Code (V of 1898), Ss.164 & 364---Statement before the Magistrate cannot be equated with the statement made before the competent Court as provided under S.7 of Ordinance VI of 1979."
36. ' We are also bound by the following ruling of a Full Bench judgment of a Bench consisting of five Judges including Mr. Justice Gul Muhammad Khan, the then Chief Justice of this Court cited as PLD 1988 FSC 58:-- "Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--- ' Ss.8 & 20---Confession---Court of competent jurisdiction---Confession to be effective must be recorded not by any Magistrate or a Court but by a Court of competent jurisdiction which is the Court competent to try the case---Trial of offence of Zina has to be undertaken by a Sessions Court jurisdiction of Magistrate has been expressly excluded---Any statement before a Magistrate, therefore, is not a confession under S.8(a) and has no legal effect."
37. Another limb of the argument in this context is that, as shown in the chart above, no explanation is brought on record to show as to what caused the undue delay in recording these confessional statements when the appellant were already available in police custody. The prosecution took 8 days from the date of arrest to the recording of confessional statement in the case of Muhammad Israr, 9 days in the case of Shah Muhammad, 6 days for Rehmatullah and Abdul Aziz, 10 days for Rehman Bacha and 8 days for Muhammad Riaz. Obviously it casts doubt on the voluntary nature of the statements and render them suspicious especially when we have observed earlier that the recording Magistrate Akber Khan (P.W.16) has admitted that appellant Shah Muhammad had intimated him about the torture by police. In this context one of us (Fida Muhammad Khan, J.) had already formulated a ruling based on age-old accepted fundamental principles of natural justice appearing as plancentium C of PLD 1994 FSC 24.
38. ' Under these circumstances, first pillar of the edifice of the prosecution crumbles down.
7. Now we take second pillar i,e, identification parades.
39. Admittedly, it was the daylight time incident in which five open face previously unknown unseen culprits had committed offence of Haraaba before and in the close sight of 3 ocular witnesses i,e, P.Ws.1, 2 and 3. The complaint (Exh.P.A./1) and F.I.R. (Exh.P.A.) do not make any reference to the description of height, colour, face, identification marks, the type or colour of clothes worn and the role of each one of the offenders, Attaur Rehman (P.W.1) has himself admitted this position during cross in the following words:- {{URDU TEXT}} ' At the same time, about identification of the culprits, this same witness is indicative of the conduct of the police in the following words:-- {{URDU TEXT}} ' In this context Noor Zaman (P.W.2) is deposing: {{URDU TEXT}} ' Ahmed Jan (P.W.3) is replying to certain suggestions during deposition as under:-- {{URDU TEXT}} ' From these depositions it is clear that the police was in a habit of calling the ocular witnesses to the police station to acquaint themselves with the accused or pick and choose before the identification parades were held. It is also clear that P.Ws.2 and 3 are giving different numbers of persons intermingled with the accused during identification parade. As discussed earlier, in the Court P.W. I had identified Abdul Aziz to be one of those 5 decoits and had taken his name clearly, whereas P.W.2 has only made a reference to 2 out of 6 accused present in the Court in custody, but has shown his ignorance about their names. P.W.3 has, in the open Court, indicated 3 of the accused, but has not named them. It remains a mystery about P.W.2 and P.W.3 as to whether one of those who were identified in the open Court by them was Abdul Aziz and not Rehman Bacha alias Rahmane.
40. ' The learned counsel for appellants has contended that these circumstances are creating doubt about fair and impartial identification parades. He has relied on the principles enunciated by the apex Court cited as 1994 PCr.LJ 409 and 1985 SCMR 721.
41. ' So far as the first case is concerned, the relevant rulings are quoted as under:-- "Mushtaq Ahmad F.C. (P.W.28), neither gave the description of the culprits in his statement under section 161, Cr.P.C. Nor he deposed about the features of the alleged accused before the Court. In these circumstances, how he was able to correctly identify the appellant in the identification parade, held in Kasur Jail, remained shrouded in mystery. This fact, by itself, is sufficient to give upport to the defence version that the police showed the appellant to this witness before the identification parade. The evidence of this witness that he correctly recognized the appellant in the identification parade is of no avail to the prosecution. After discarding the evidence of these two witnesses, we are left with the evidence of Liaquat Ali P.W.25 and Muhammad Rafique P.W.27. The presence of these two eye-witnesses, even if accepted, would not lead to this inference that they were in a position to correctly recognize the culprits in an incident which took place all of a sudden, though in the day time, in which they were taken by surprise. The Magistrate under the instructions issued by the Punjab Government, referred to above, was bound to prepare a list of persons including the accused, who formed part of the parade. In the present case, neither this list was prepared, nor the description of the persons who were mixed up with the suspect is on the file of the identification parade. According to the police rules, it is required that the suspects shall be placed among other persons similarly dressed and of the same religion and social status, in the proportion of 8 or 9 such persons to one suspect. This formality too was not observed, because the appellant was mixed with only six persons; hence the conviction of the appellant cannot be maintained on the basis of this illegal identification which has materially prejudiced his defence."
42. ' The second citation has its locus standi on the principle appearing at placentium C which reads:- - "The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person.
43. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to' the simple fact that a witness was in a position to show that he knew a certain accused person by sight."
44. ' In view of these principles and relevant pieces of depositions of the three ocular witnesses, when we look at the map of identification parade, dated 16-1-1995, we find that appellant Muhammad Israr was firstly made to sit at serial No,2 among four persons in the Court-room of Tehsildar, Samar Bagh. Attaur Rehman (P.W.1) was called inside and he placed his hand on Muhammad Israr to be one of the culprits. This way Ahmed Jan (P.W.3) was also called and he also repeated the act of P.W.1. In the second and third turn, the same type of parade was repeated with intermingling four persons inclusive of the appellant Muhammad Israr. The only witness of this parade Fateh-ul-Mulk has not been produced in the trial Court as a witness. Although this appellant was arrested on 11-1- 1995 yet the application for identification parade (Exh.17/7) was moved five days afterwards on 16- 1-1995 and the parade as shown above was conducted on the same date. As proved from the depositions of the relevant witnesses, the conduct of the police was to call them earlier and show them the suspected persons. It seems to be the case here otherwise as a rule of prudence, for safer dispensation of justice immediately after the arrest, the identification parade should have been held. Khaista Rehman (P.W.17) has himself admitted the arrest of this appellant on 11-1-1995. He deposes:-- {{URDU TEXT}} ' Keeping in view the principles set by the superior Courts, quoted supra, neither the features of the alleged accused were deposed before the trial Court, nor their description was given in the statements under section 161, Cr.P.C. The Magistrate was bound under the rules to have prepared list of persons including the accused who formed part of the parade. Neither such a list nor the description of the persons who were mixed up with the suspect is available on the file of the identification parade. There were totally four persons including the suspect made to sit, but the rules are in the proportion of 8 or 9 such persons placed with suspect similarly dressed. Then there is a clear violation of the mandatory instructions regarding duty of Magistrate to record precaution taken that the witness do not see the person to be identified by them before the identification proceedings commence and the form and Magistrate's certificate as instructed by Government of West Pakistan, Home Department, Lahore's letter No,Jud1.1-(13)61/dated 26th July, 1961. All these rules are clearly violated and create strong suspicion into the impartiality of the parade under consideration.
45. ' The second parade was held on 25-1-1995 before the same Tehsildar and it concerned appellants Rehmatullah and Rehman Bacha alias Rehmane. It is evident that Rahmatullah was arrested on 19- 1-1995 and Rehman Bacha on 21-1-1995. Clearly then Rehmatullah was in police custody for six days and Rehman Bacha for four days before identification parade. As observed earlier, and in the presence of violation of rules added by absence of an independent witness. We conclude that the ocular witnesses were provided with ample chances to see the suspects before the parades which were otherwise held in violation of rules and have materially prejudiced the appellants under discussion. No identification parade seems to have been arranged for other appellants.
46. Consequently this pillar falls down.
8. So far as the question of recoveries is concerned, it has been targeted from various directions.
47. Firstly it has been contended that these are made either indirectly and not on the pointation of the appellants or are not witnessed by two are more respectable inhabitants of the locality and, therefore, a clear violation of the mandates created by section 103, Cr.P.C. Is made. The recoveries not made in the presence of appellants are of no value at all as a corroborative circumstance on the basis of the following dictum of the Supreme Court of Pakistan per Hamoodur Rehman, C.J.
48. Cited as 1969 SCMR 269:-- "In the present case, it is frankly conceded by the learned counsel appearing on behalf of the petitioner that the only corroboration furnished by the prosecution is of the recoveries of the weapons. But, as pointed out by the High Court, these recoveries are of no value, for, the recoveries were not made in the presence of the respondents."
49. We are conscious of the fact that the substantial incriminating recoveries have neither been made on the pointation of the appellants, nor in their presence and in violation of the mandatory provisions of section 103, Cr.P.C. As interpreted by the Supreme Court of Pakistan in 1993 SCMR 2059. Placentium D is quoted verbatim:-- "Section 103, Cr.P.C. Requires that officer or the other person about to make the search should call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do. Mr. Aamir Ijaz Akhar had failed to perform his statutory duty and had unjustifiably passed on the task to Shaukat Ali, S.H.O. He could not remain content with the reply given by Shaukat Ali for not satisfying that part of the requirement of the law."
50. ' Citation 1976 PCr.LJ 243 is a D.B. Judgment of Karachi jurisdiction and is on the lines of the principles quoted above, 1989 PCr.LJ 1959 and PI,D 1996 Kar. 345 have also been relied upon which are Single Bench judgments from Karachi jurisdiction and are to the same effects, therefore, possess pursuasive value for us.
51. ' Now comes the turn of appreciating, in the light of inter alia, the abovementioned principles as to whether the evidence of recoveries possesses corroborative value. We start from the recovery made from Babaji (P.W.13). He has deposed during examination-in-chief that on the fateful night i,e, the night falling between 1-1-1995 and 2-1-1995 three unknown persons came and were served with meals. They left Rs,1,40,000 with him as Amanat. Next day he heard about decoity and came to Haji Bahadur, M.P.A., and informed him about the cash left with him by the thieves and asked for advice as to what to do with that cash. He was advised to hand over the same to the said M.P.A.
52. Then he handed over this money to Haji Bahadur in the presence of S.H.O., Munda and D.S.P. And others immediately i,e, on 2-1-1995. He had denied to be able to identify the accused as he was ailing. During cross he deposes that after informing Haji Bahadur he returned to his home. Since he was ill so he handed over the money on second or third day. This witness, on whom the trial Court has highly relied for being an independent person, is clearly lying here. In his examination-in-chief he is stating that he handed over the money to Haji Bahadur before S.H.O. And D.S.P. During cross he states that he did so on 3rd or 4th of January, 1995. But Khaista Rehman (P.W.17) is deposing that on 9-11995 this money was handed over to Haji Bahadur by Babaji vide Exh.14/1. He was handed over the said money by Haji Bahadur after counting. Exh.14/1 is the recovery memo. Before two Mashirs Khalid Khan and Taza Khan and also states the presence of Ahmed Shah, S.D.O., Jandool, but does not make any hint to Haji Bahadur, M.P.A. Who seems to have a major role in recovering amount from Babaji. Out of those shown present per Exh.14/1 only Mashir Khalid Khan has deposed as P.W.14. In his deposition he has repeated that in fact this amount was handed over to S.H.O. And D.S.P. By Haji Bahadur. From a careful reading of the record it appears that this Babaji (P.W.13) has been introduced by the police to fill in certain gaps in the story which is different from the one deposed before the trial Court. Otherwise if the prosecution was relying heavily on the judicial confessions, then the question arise as to how the following piece of such statement of appellant Muhammad Israr has been neglected altogether:- {{URDU TEXT}} {{URDU TEXT}} ' Appellant Shah Muhammad has also stated in his judicial confession that this witness Babaji and his son are involved as offenders and shareholders in the snatch cash. He is stating:- {{URDU TEXT}} ' In view of these circumstances, we discard the testimony of the witness for being shrouded in mystery, discrepant, in material contradiction with the deposition of Khaista Rehman (P.W.17), self- annihiliatory, and highly doubtful.
53. ' So far as the recovery of Rs,2,72,190 (P.31) from the house of appellant Muhammad Israr is concerned, the Recovering Officer, Khan Raziq Khan (P.W.11), S.H.O., Police Station, Balambat has admitted during cross:- {{URDU TEXT}} ' This recovery along with some other non-incriminating articles was made before two witnesses Sikander Hazrat of Sikandarabad and Ikhwanzada of unknown locality. None of them has been produced as a witness. Hence it is not known whether they are respectable inhabitants of the locality. Since the appellant was not yet arrested, therefore, no question of his pointation arises.
54. Violation of the mandates of section 103, Cr.P.C. And the principles set by the superior Courts is clearly visible. Consequently this recovery cannot be considered as of any corroboratory value.
55. Rs,5,000 (P.16) were recovered from personal search of appellant Muhammad Israr on 1-1-1995 at the time of his arrest by Shamsur Rahman (P.W.18) Inspector C.I.A., Temargarh vide recovery memo.
56. Exh.9/1. ' This recovery memo. Does not disclose the numbers of notes. It only speaks of 10 notes of Rs,500 each. The witnesses of recovery are Surbuland Khan (P.W.9) S.H.O., Police Station, Temurgarh and Niaz Muhammad (given up) A.S.-I. Police Irch. In what way this recovery is an incriminating article? When the numbers of notes are not described, the recovery cannot connect the stolen money with these notes. Consequently this recovery is discarded as a corroboration.
57. ' A klashnikov No,19110655 China type (P.12) was recovered by Shamsur Rahman (P.W.18) on 11-1- 1995 on the pointation of appellant Muhammad Israr from his house. Another klashnikov No,3539 Russian type (P.13) was also recovered under the same circumstances and under the same recovery memo. Exh.811. About these two klashnikovs which have been recovered empty vide Exh.811, out of four recovery witnesses Muhammad Nawab has been given up. Shamsur Rehman (P.W.18) has deposed:- {{URDU TEXT}} ' Saifullah (P.W.8) has deposed: {{URDU TEXT}} ' Sarbuland Khan (P.W.9) has deposed {{URDU TEXT}} Although it has been alleged that klashnikovs were used by decoits for Haraaba, but in what way these klashnikovs are connected with the alleged offence? An area where admittedly almost every house is possessing and keeping automatic and semi-automatic arms and where West Pakistan Arms Ordinance, 1965 was not applied as yet up to the date of offence, to connect recovered klashnikovs with the offence needed further evidence which is lacking. Consequently this recovery is of no avail to the prosecution.
58. ' A chit (P.4) has been alleged to have been recovered from appellant Muhammad Israr's sock (Jurab) under recovery memo. (Exh.5/1) by Khaista Rehman (P.W.17) S.H.O. Police Station, Munda before Habibur Rehman (P.W.5) A.S.-I. Police Station, Samar Bagh and Badshah Khitab given up) H.C. Police Station, Munda.
59. According to recovery memo. (Exh.5/1) this chit (P.4) was recovered on 11-1-1995 by the abovementioned S.H.O. (P.W.17), but Shamsur Rahman (P.W.18) Inspector C.I.A. Who had arrested this appellant on 11-1-1995 is deposing during cross:-- {{URDU TEXT}} ' It is an impossibility then that one day earlier than the transfer of custody from S.H.O., C.I.A., the chit (P.4) was recovered. An analysis of this chit is indicative firstly that it is an incomplete, erroneous and filled with cuttings, and erasings so-called share list of the culprits, accomplices and harbourers of decoits. Secondly it is showing at serial No,7 a share of Rs,1,40,000 for Urang Wala.
60. This Urang Wala is none else but Babaji (P.W.13) who has himself shown himself as a resident of Urang of Bajur Agency and as discussed earlier is discrepant in his deposition, and in case this piece of recovery is believed, then this Babaji should be one of the accomplices and should have been arrested rather than matamorphosised from an accused to a witness for prosecution in the challan. Thirdly that at serial No,3 it is indicating share of accomplice Kach to be Rs,14,00,000 (fourteen lac rupees). If so then out of more than ten accomplices, the entire stolen/snatched money is going to only one shareholder. Fourthly this chit does not indicate that it is share-list of the stolen money relevant in the present case. Fifthly that the scribe is hidden as no handwriting specimen of the alleged writer are taken or exhibited. Sixthly that recovery witness Habibur Rehman (P.W.5) is admitting during cross;-- {{URDU TEXT}} ' Khaista Rehman (P.W.17) is disclosing during cross:-- ' Seventhly that the specified shares in this chit per each accused/appellant have not been recovered equating the shares or even closer to the said shares. Muchless than the shares has been recovered. In view of these facts and circumstances, we are of the considered opinion that this chit has no corroborative value.
61. ' So far as the recovery of Rs,1,29,000 (P.5) on 16-1-1995 presented by Muhammad Riaz brother of appellant Muhammad Israr and one of the appellants by Khaista Rehman (P.W.17) and Rs,22,810 (P.11) presented by Muhammad Fayyaz, another brother of the said appellant on 15-1-1995 is concerned, both have been effected from third persons and are not admissible as incriminating articles. First recovery is per Exh.6/1 and this exhibit does not disclose the numbers of notes which have been said to be of the denomination of Rs,500 each. This recovery has been made from one of the brothers of the said appellant. About him Khaista Rehman (P.W.17) is admitting during cross:- - {{URDU TEXT}} ' Saifur Rahman (P.W.6), one of the witnesses of this recovery has admitted during cross:- {{URDU TEXT}} ' Second witness on this recovery, Muhammad Ismail, A.S.-I. Police Station Munda has not deposed.
62. Second recovery is per Exh.6/3 and is in the same nature of first recovery. Hence not of any avail to the prosecution.
63. ' As deposed by Shamsur Rahman (P.W.18), on 23-1-1995 a klashnikov Russian made (P.19) was submitted by Muhammad Fayyaz brother of appellant Muhammad Riaz vide Exh.9/3. Out of two witnesses, the only deposing witness Surbland Khan (P.W.9) has admitted during cross that the bulk of articles recovered before him none was sealed. As discussed earlier, this recovery is neither on the pointation of the relevant appellant nor before independent witnesses, hence not admissible as a recovery free from reasonable doubt.
64. ' Per Exh.10/1, Fazal Muhammad (P.W.10), S.H.O., Uch recovered Rs,2,636 from appellant Shah Muhammad alias Shamte from his personal search at the time of his arrest on 16-1-1995. This recovery is witnessed by Gul Zaman (P.W.12), Constable Police Station Chawki Ghobana and Mehboob Shah, Constable who has been given up. Again there is no description of the number of notes to connect this appellant with the incriminating articles. The witnesses are also not independent. Another recovery of Rs,73,500 (P.20) from this appellant is said to be on his pointation from the house of one Noor Muhammad. Fazal Muhammad (P.W.10) has admitted during cross:- {{URDU TEXT}} ' None of the 3 witnesses of the recovery per Exh.10/2 has been produced although two of them are residents of the locality village Ibrahim Khan Kilay as per Exh.10/2, but their non-production and numbers of notes not described has made this recovery also a piece of rubbish from the point of view of a safe dispensation of justice specially when Noor Muhammad, from whose residence this recovery has been made, has neither been produced as a P.W. Nor as an accused. About him silence prevails the records. Recovery of Rs,1,500 (P.30) on 21-1-1995 has not been made directly.
65. This amount is presented by Ejaz Naik and Noor Muhammad and does not carry any description and numbers of notes and those who presented it are not the accused persons. Recovery of klashnikov (P.27), charger (P.28), 27 cartridges (P.29) on 21-1-1995 said to belong to Shah Muhammad has been made on the pointation of co-accused Rehmatullah from the house of Gul Amin resident of Noorabad, District Mardan. This Gul Amin is neither a P.W. Nor an accused. The recovery is also not direct and on the pointation of co-accused. Consequently it loses its evidentiary value.
66. ' All recoveries from appellant Rehmatullah have been made by Fazal Mahmood (P.W.10) who arrested him alongwith appellant Abdul Aziz from Cinema Road, Peshawar on 19-1-1995 and recovered from their personal search Rs,11 and Rs,91, respectively. Appellants involved in a case of Haraaba in which more than Rs,12 lacs are involved, it is not understandable that two out of nine declared decoits were hundreds of kilometres away from their native village in a city like Peshawar and arrested from a place like Cinema Road, yet with Rs,11 and Rs,91 only in their pockets. In what way this recovery connects them with the robbed money? This very Fazal Mahmood (P.W.10) has also recovered, according to him, a klashnikov (P.24), 3 chargers (P.25), 120 cartridges (P.26) on 21- 1-1995 from the house of Gul Amin resident of Noorabad, District Mardan on the pointation of this appellant. About Noor Muhammad and Ajaz Naik mentioned above P.W.10 has himself admitted:-- {{URDU TEXT}} ' Neither Noor Muhammad nor ljaz nor Gul Amin have been shown as accused although recoveries are being effected from them or from their houses and they have not even been produced as witnesses. In view of this situation, appellants have not been given a chance of cross-examining them. We cannot rely, then, on the recoveries from third persons not examined in the Court and this way prejudicing the appellants. So far as recovery memo. (Exh.6/5), dated Nil whereby Fazal Azeem Khan (P.W.19), Manager of National Bank of Pakistan, Timurgarh has given his opinion about the stolen notes, it does not carry any date, therefore, it is doubtful.
67. ' So far as recovery memo. (Exh.9/2), dated 18-1-1995, whereby list of currency notes received by National Bank of Pakistan Timurgarh from State Bank of Pakistan, is concerned, it does not carry any corroborative value for the simple reason that when notes are sent by the State Bank of Pakistan, the serial numbers are also entered on the invoice whereby they are sent. In the present case, the record of State Bank of Pakistan containing numbers of the notes sent to the National Bank of Pakistan does not match with the numbers of the notes of the alleged robbed amount.
68. There is no record to connect the alleged stolen/robbed money with the money issued by the National Bank, Timurgarh to the complainant. There is nothing on record to prove that the serial numbers of notes recovered from different accused persons match with the serial numbers given in the statement of State Bank of Pakistan. Again it is not a general practice of National Bank of Pakistan to keep record of serial numbers of notes given to customers. In view of this situation the testimony of Fazal Azeem Khan (P.W.19), Manager, National Bank of Pakistan to Timurgarh loses its corroborative value as it is not explicit since the serial numbers of the recovered currency notes are not matching with the serial numbers of notes entered in the records of banks. Neither the recovered notes nor the records and invoices of the banks have been exhibited or placed on record to support the deposition of this witness.
69. ' Consequently the pillar of recoveries also shatters into pieces.
9. Now comes the appellant's contention that the material witnesses have been withheld and in this context illustration (g) to Article 129 of the Qanun-eShahadat, 1984 should have been brought into operation by the trial Court. Relevant portion of Article 129 supra reads:-- "129. Court may presume existence of certain facts.--- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case;
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;"
70. ' It has been contended that Muhammad Wali, a taxi driver, has been withheld although he could have proved a star witness for prosecution. Khaista Rehman (P.W.17), S.H.O., Police Station, Munda is deposing in this context:-- {{URDU TEXT}} {{URDU TEXT}} ' It is also mysterious to note that from this piece of evidence Muhammad Wali had also given the name of appellant Muhammad Riaz as one of the decoits on 4-1-1995. This Muhammad Riaz was in constant contact with police yet he was not arrested up to 22-1-1995. As shown earlier this appellant Muhammad Riaz had presented Rs,1,29,000d to the same P.W.17 personally on behalf of his already arrested brother Muhammad Israr on 16-1-1995 and it was known to this P.W. Since 4-1- 1995 that Muhammad Riaz was one of the culprits, yet he was not touched. Then emerges another important witness who has been withheld in the shape of Haji Bahadur, M.P.A. Babaji (P.W.13) has deposed that he handed over Rs,1,40,000 in the presence of S.H.O., Munda, D.S.P. And many other persons. Khaista Rehman (P.W.17) S.H.O., Munda has also admitted that on 9-1-1995 this amount was presented by Babaji to Haji Bahadur Khan who counted it and handed over the same to him.
71. Haji Bahadur Khan is not appearing as a witness of this recovery vide Exh.14/1. Another important witness who has been withheld is that uniformed Hawaldar who was made to follow the culprits vide complaint (Exh.P.A./1). We presume, therefore, that evidence of these three most important witnesses which could be and is not produced would, if produced, be unfavourable to the prosecution who had withheld them. Clause (g) of Article 129 of Qanun-e-Shahadat, 1984 is exactly applicable in the circumstances of this case.
72. ' The owner of the car CA-1655 used in crime has not been located who could have proved an important witness.
10. Appellant's contention concerning contradictions among the depositions of P.W.1, P.W.2 and P.W.3 inter se and P.W.17 and P.W.18 inter se are found to be correct although the prosecution has mostly relied upon them.
73. ' The evidence of eye-witness Atta-ur-Rehman (P. W.1), complainant is that 3 unidentified persons raised their arms at them. After ordering them to step down from the jeep and two of them took the bag of money is in conflict with !Door Zaman (P.W.2) who stated that all the 5 unidentified culprits raised their arms at them and one of them took the bag of money. On the other hand Ahmed Jan (P.W.3) said that one person out of 5 came and took the bag of money and he was still sitting in the jeep. At this particular point P.W.1 and P.W.2 stated that all the three of them were ordered to come out of the jeep but Ahmed Jan (P.W.3) stated that he remained in the jeep. In view of this evidence two serious discrepancies are emerging:--
(i) One person took bag of money according to two eye-witnesses but according to one eye- witness two culprits took the bag of money.
(ii) All were ordered to leave the jeep according to two eye-witnesses but according to one eye- witness he was still sitting in the jeep.
74. In the circumstances of the present case these discrepancies fall heavily on the story of prosecution.
75. ' In his examination-in-chief Khaista Rehman (P.W.17) deposed that Shamsur Rehman (P.W.18) handed over the appellant Muhammad Israr on 11-1-1995 and then he recovered a chit (P.4). In contrast to this, Shamsur Rehman (P.W.18) has admitted during the cross that appellant Muhammad Israr was handed over to Khaista Rehman (P.W.17) on 12-1-1995. This discrepancy also is falling heavily on the prosecution in view of the doubtful nature of the evidence as produced.
11. The learned counsel for State has contended vehemently that the testimony of ocular witness i,e, P.W.1, P.W.2 and P.W.3 inspires confidence. This contention has already been discussed earlier in this judgment and we are of considered view that it inspires confidence to the extent of the existence of the decoity but does not connect the present appellants with that decoity. Another limb of argument is that the confessional statements of appellants are inculpatory and although retracted but are corroborated by other evidence on the record. As discussed above, we have come to the conclusion that the so-called corroboration by the other evidence is not reaching the standards which call for considering this evidence to be corroboratory in nature.
12. The upshot of the discussion is that prosecution has utterly failed to prove the guilt of the appellants beyond reasonable doubts.
76. Consequently the impugned judgment is set aside. The appellants may be released forthwith in case they are not wanted in any other case. The Criminal Reference is, therefore, replied in negative. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.