' This appeal from jail by convict Shamsur Rehman alias Zahid Fazal is directed against the judgment, dated 14-11-1998 of the learned Additional Sessions Judge, Swabi whereby he was convicted and sentenced as under:--
(1) Under section 392, P.P.C. 8 years' R.I., fine of Rs,10,000 or in default of payment of fine to suffer one year's RI
(2) Under section 492, P,P,C, five years' R,L, fine of Rs,3,000 or in default of payment of fine to suffer six months' R-1,
(3) Under section 411, P,P,C, one year's RI
(4) Under section 171, P,P,C, three months' R,1,
2. All the sentences were ordered to run concurrently, Benefit of section 382-B, Cr,P,C, was given to the convict, Coqiecused Paul Bahim was declared proclaimed offender and perpetual non=bailable warrants of arrest were issued against him, The case property was ordered to be kept intact till arrest and trial of Fuel Ruhim, Motor ear was found to have been returned to the lawful Owner, 3, P,I,R, Exh-P,A, was registered on 3+19% at 1145 at Police Station Kalu Khan District Swabi on the statement Exh.P,A,/1 of Muhammad Ashraf complainant (P.W,8) made to Said.Fliikeem Shah,(P:W-1) charging two unknown persons for snatching motor car No,1288/0AJ on pistol point near Nazar Banda, District Martian. The statement made was that complainant was driver of motor car No,1288/0AJ, model 1988, owned by one Sarfraz Ahmad, On 2-6-19% at 14.30 hours he was present at taxi stand Guiranwale that a taxi driver Anwar by name called him and told him that two passengers going to Peshawar wanted to hire a car to which he agreed, They hired the car for Peshawar via Mardan and buck. They travelled in that car up to Mardan, The complainant stayed for the night in Zaman Hotel, Mardan. In the morning, at nine O'clock he took the two passengers one of young age of about 24/25 years and the other with white geared aged about 45/50 years towards Nazar Banda. Reaching Nazar Banda car was stopped. The old man went inside the village and after 10/15 minutes came back and boarded the car. At 11 a.m, when they reached the place of occurrence, the two passengers took out a pistol and asked the driver to hand over the steering to them. Out of fear, he handed over the car to them and himself got down from the car. The two persons took away the car towards Ismaila. The complainant stated that he could identify the persons if shown to him. Said Hakeem Shah A.S.-I. (P,W.1) took up the investigation after registration of the case. He visited the spot and prepared the site plan Exh.P.B. At the instance of the complainant. On arrival of Amir Khan, S.H.O. Police Station Kalu Khan (P.W.7), Said Hakeem Shah, handed over the case file to him. Amir Khan while on 'Gusht' had received information on wireless about the occurrence on the same day at 14-00 hours. He proceeded to the spot where complainant and Said Hakeem Shah, A.S.-I. Were present. On 12-6-1996 P.W. Anwar (given up as unnecessary) produced a 'Chit' Exh.P.C. Showing the name of Syed Zahid Fazal Mullah, Gharib Abad, Gohati, Tehsil Swabi and telephone No,24132643 and Code No,O5324, The chit was taken into possession vide recovery memo, Exh,P,C, On 1341996 statement of Muhammad Anwar under section 164, Cr,P,C, was got recorded, For the arrest of the accused, the Investigating Officer searched his house where he was not available, Said Muhammad Shah brother of accused produced photograph of accused which was taken into possession vide recovery memo, Exh,P,C11, His statement was recorded, On 16.6.1996 Amir Khan Investigating Officer saw the accused on Sher Shah Road while he was coming in the stolen motor car with original No,12811/0A,1 And was arrested, The ear and a brief=case from the digi containing grinding machine, different number plates seals with stamps, a letter pad, forged identity cards in the name of Shamsher All having photo of Shamsher Rehman, original identity card in the name of Shamsher Rehman, registration' copy No,1521/DMR, transfer letter, N,O,C photostat copy of Identity card of TA] Muhammad, two other registration copies of 2476/MRC and No,850S/LOV in the names of Zubair and P116(111110 Shah, and full army uniform of the rank of Lt,-Colonel were recovered and memo, Exh,P,C,/1 was prepared, Amir Khan, S,H2O, interrogated the accused, and on his pointation of the place of occurrence, memo, Exh,P,C,/3 was prepared, Accused named one Pam! Rahim as co-accused with him, The Investigating Officer could not arrest him, therefore, proceedings under section 312 were conducting against him, However, motor ear bearing No,K.2/01115, model 1994 with keys and - registration copy, open transfer letter, photostat copy of N,I,C, in the name of Ohnno Khan was recovered from the open place in front of house of Paul Rahim vide memo, Exh.P.D, Accused Shaino urAehman was produced before Muhammad Shoaib, Magistrate (P.W.5) for recording his confession on 20-6-1996, The Magistrate recorded confession Exh.P.W,5/1. The Investigating Officer then requested the Court to supervise the identification parade of the accused, Under the direction of the E.A.C., Raj Bahadur, District Qanungo (P,W.6) conducted the identification parade, and proved his report Exh.P,W,6/1. After completion of investigation Amir. Khan, A.S.-I. Submitted complete challah against the accused.
4. Accused did not plead guilty to the charge.
5. To prove the charge against the accused prosecution produced 10 P.Ws,
6. Muhammad Ashraf, complainant, appeared as P.W.8 and stated that during the days of occurrence he was taxi driver of motor car bearing registration No,1288-GAJ, Toyota Corolla, white color, model 1988 owned by his co-villager Sarfraz Ahmad, On 2-6-1996 at about 14-30 hours he was present in the taxi stand of Gujranwala that Muhammad Anwar P.W. (not produced) came to him and told him that two passengers wanted to hire taxi for Peshawar. Those two persons also came to the taxi stand, one of them was young aged about 23/24 years and other was old with white beard. After discussion, Rs,4,000 was fixed as hire to take those persons to Peshawar via Mardan and back to Gujranwala. At that time no payment was made. He boarded those persons in motor car and proceeded to Mardan. Reaching Mardan he stayed for the night in Zaman Hotel and those persons went to their houses. Next morning the two persons asked him to take them to a village in Swabi for collecting their outstanding amount. He proceeded towards village Ismaila and when they reached the village not known to him, those persons stopped his motor car. The old person alighted from the car and went inside the village. After ten minutes he came back and directed him to return. When they travelled some distance they reached the place of occurrence where both the persons took out their pistols and asked him to hand over the steering of the car to them. He was deboarded from the car and those persons took the car towards village Ismaila.
Muhammad Ashraf complainant further stated that he travelled on foot and after covering a distance of about 2/3 furlongs met a police party to whom he lodged the report Exh.P.A./1 which was read over to him and he signed the same. He had pointed out the place of occurrence to the Investigating Officer and charged the unknown persons. The police carried out the search of the accused in 2/3 villages in his presence. The car in question was returned to the lawful owner after recovery. After the arrest of the accused he was summoned by the Investigating Officer and got the accused identified in regular identification parade conducted at Swabi jail. The complainant stated that name of the accused was Shamsur Rehman son of Gulmast All Shah, resident of Gharib Abad Gohati. During cross-examination he admitted that he was doing the job of taxi driver and had been going to Mardan even before the occurrence taking passengers in his taxi and had also visited District Swabi many times. He admitted that Sarfraz Ahmad had come to Swabi during investigation of the case. He denied the suggestion that one Muhammad Bashir Gujar son of Muhammad Wazir had come with him to Mardan and the car belonged to him and that he was his driver. He admitted that he identified the accused out of 20/25 persons. He denied the suggestion that he was deposing fally.
7. Said Hakeem Shah, A.S.-I. (P.W.1) recorded the Murasila Exh.P.A./1 and sent the same to the police station for registration of the case. He had prepared the site plan Exh.P.B. At the instance of the complainant and on the arrival of S.H.O., he handed over the case file to him. During cross- examination he denied the suggestion that after due consultation with his officers, including the S.H.O. Police Station Kalu Khan, Murasila was drafted under their pressure to entangle false persons in the case and that no occurrence of snatching of the car had taken place.
8. Afsar Said, M.H.C. (P.W.2), incorporated the Murasila in the F.I.R. Exh.P.A. Sardar Ali, D.F.C. (P.W.3), executed warrant under section 204, Cr.P.C. And proclaMation under section 87, Cr.P.C. Against absconding accused Fazal Rahim and deposed to that effect.
9. Muhammad Saeed, A.S.-I. (P.W.4), is the marginal witness of the recovery memo. Exh.P.C. Vide which the Investigating Officer took into possession one Chit Exh.P.1 produced by Muhammad Anwar son of Fazal Hussain resident of Gujranwala on which address "Said Zahid Fazal, Mohallah Gharib Abad Gohati, Tehsil and District Swabi near Government College, Phone No,24132643 along with Code No,05324" was written. He also proved the recovery memo. Exh.P.C./1 vide which Investigating Officer had taken into possession photo Exh.P.2 of accused Shams-ur-Rehman produced .By Said Muhammad Shah P.W. In the presence of marginal witness. He is also marginal witness of Exh.P.C./2 vide which the Investigating Officer recovered one briefcase from the motor car and from the brief-case different articles mentioned above by the Investigating Officer from the accused at the time of arrest. He witnessed the potation memo. Exh.P.C./3 of the place of occurrence shown by the accused where he had snatched the motor car. He admitted that at the time of house search of the accused the highups of the Police Department including D.S.P., Swabi was present. He was unaware of strained relations of accused with his brother. He stated that accused was arrested along with motor car on Sher. Shah Road near Fazal Camp, leading to village Dagai. He admitted that dickey of the car was locked which was opened by the Investigating Officer after obtaining key from the accused and the key was also taken into possession at the spot which was not produced in Court. He explained that in the recovery memo.
Exh.P.C./2 "Kalid" was mentioned. He denied the suggestion that the accused was roped in with the ulterior motive.
10, Muhammad Shoaib Khan, Judicial Magistrate, Swabi, (P.W.5) deposed about recording of confession of the accused on 20-6-1996 at about 14-30 hours. He proved the confessional statement Exh.P.W.5/1 which was read over to the accused who thumb-impressed the same. The memorandum of inquiry Exh.P.W.5/2 and certificate Exh.P.W.5/3 were bearing his signatures. During cross-examination he admitted that he remanded the accused to police custody on 17-6-1996 for three days. He stated that he had inquired from the accused that whether he was tortured by the police or not but no specific question regarding torture was written in the memorandum of inquiry.
He stated that he recorded the confession after observing the legal formalities and was satisfied that accused was giving a voluntary confessional statement.
11. Raj Bahadar, District Qanoongo (P.W.6) deposed that he was directed by E.A.C. Revenue, Swabi to conduct the proceeding of identification parade of accused Shams-ur-Rehman in the judicial lock-up, Swabi and that he did so. Firstly accused was made to sit with 15 under-trial prisoners in the judicial lock-up and Muhammad Ashraf and Muhammad Anwar P. Ws. Were called one by one who correctly identified the accused Shams-urRehman. After that he sent Muhammad Ashraf and Muhammad Anwar outside the judicial lock-up and changed the manner of the under-trial prisoners and then complainant and Muhammad Anwar was called again for identification of the accused who correctly identified them. The practice was repeated third time also and the witnesses identified the accused. He proved his report Exh.P.W.5/1 to be in his handwriting and bearing his signature. During cross- examination he admitted that he had got no Magisterial power and had never conducted identification parade before and that identification parade was conducted on the direction of the E.A.C, Revenue. He admitted that at the time of identification parade Jail Superintendent, S,H.O. Amir Akhan and police party was present.
12, Amir Khan, (P,W,7) deposed about the investigation conducted by him. He had gone to the spot when he received a wireless message about the occurrence where the complainant as well as Said Malcom Shah, A,S,=I. Were present, On 12=6=1996 P.W, Muhammad Anwar produced a Chit showing address of SW Zahid Paul which he took into possession vide recovery memo. MAC, On 13- 6=1996 he produced Muhammad Anwar before the Magistrate for recording his statement under section 1M, Cr:P.C: Por the arrest of the accused he conducted house search but he Was not available: His brother Said Muhammad Shah produced photo of Shams-ur=Rehman which was taken into possession vide recovery memo: Exh,P,C./1: He recorded the statement of his brother.
Since accused was absconding, therefore, he applied for warrant under section 204, Cr.P.C, and proclamation under section 87/88, CF,P,C, against the accused. He recorded the statements of the PM': under section 161, er,P,C, On 16=6=1996 he arrested the accused on Sher Shah Road while driving stolen car. Prom the car, a brief-case containing articles mentioned above Were taken into possession vide recovery memo. Exh,P,C./2, He interrogated the accused and during interrogation accused pointed out the place of occurrence and on his pointatlon memo. Exh.P.C./3 was prepared. Accused named one Paxal Rahim as his co-accused and for search of the said accused the Investigating Officer conducted his house search but he was not available but from a Dagga Maidan he recovered one motor car bearing No,K-2/0815 Model 1994 along with key and a registration copy with open transfer letter and Photostat copy of N.I.C. In the name of Ghano Khan was recovered which was taken into possession vide recovery memo. Exh.P.D. He produced accused Shams-urRehman before the Magistrate for recording his confession. The Investigating Officer requested the Court to conduct identification parade which was conducted by the District Qanoongo. On the request of Amir Khan (P.W.7) Muhammad Shoaib Khan, Judicial Magistrate (P.W.5) recorded the confession of the accused. After completion of the investigation Amir Khan, A.S.-I. (P.W.7) submitted complete challah against the accused and against Fazal Rahim challan under section 512, Cr.P.C. Was submitted. During cross-examination he stated that he had not cited the complainant as a witness to the recovery memo. Exh.P.C./2 and stated that he marked his presence in his diaries. He stated that despite his efforts, no private person from Shewa Adda and other localities were prepared to witness the recovery and arrest of the accused. He denied the suggestion that with the effort of the local police and other high-up's, the case was cooked up against the accused with some ulterior motive. He denied the suggestion that accused Shams-ur- Rehman was arrested from his house at Batichela Malakand Agency. He stated that there was nothing to show that the relations between the accused and his brother were strained, and that he was residing in one and the same house with his brothers at Oharib Abaci Gohati within the jurisdiction of Police Station' Swabi. He denied the suggestion that intentionally he had not associated any pollee official from Police Station Swabi and stated that one A,S,-1, of Police Station Swabi had accompanied him to the house of the accused,
13. Abdul Buil Khan (P,W.9), 5,1,0, Police Station Klatt Khan stated that he submitted challan under section 512, Cr,P,C, against the accused who was then absconding, MAW' All P,C, (P,W,10) had executed the warrant under section 204, Cr,P,C, and proclamation under section 87/88, Cr,P,C, against the accused,
14. After the prosecution evidence was closed, accused was examined under section 342, Cr,P,C, All the incriminating circumstances appearing in evidence against him was put to him and to all the questions his reply was "it is incorrect", He stated that recoveries were fabricated and that he did not abscond, He retracted from the confession, When asked about the identification his reply was "it is incorrect", When asked as to why the PAW deposed against him he stated that all were police officials and interested, and that private P:Ws, were inimical towards him, He professed innocence and did not opt to be examined as When on oath and also produced no evidence in defiance,
15. Trial 'Court believed the prosecution evidence and vide impugned judgment, convicted and sentenced him as mentioned hereinabove,
16. Dr. Muhammad Aslam Khaki, Advocate, assisted by Mr. Muhammad Jalal-ud-Din, Advocate, for the appellant challenged the conviction on more than one grounds. He contends that identification of the accused was not supervised by a proper person, Recoveries were not witnessed by independent persons and confession having been retracted finding no corroboration from other evidence, it could not be made basis for conviction of the accused. Learned counsel further contended that Muhammad Anwar was a material witness who was given up as unnecessary because he was not supporting the prosecution case. Investigation was unfair as the Investigating Officer failed to verify from Mardan Hotel about stay of accused for the night in that hotel.
Photograph handed over to the Investigating Officer by the accused's brother must have been shown to the complainant before identification parade was held. It was argued that conviction under sections 392 and 411, P.P.C., both were illegal. Non-production of case property Rs, brief-case and motor car at the trial was fatal to the prosecution case. Learned counsel prayed for acquittal of the accused/appellant as the prosecution failed to prove the charge against the accused beyond doubt as required by law.
17. Mr. Aziz-ur-Rehman, Advocate, for the State, was unable to assist the Court properly.
18. Accused in this case was charged for having committed offences punishable under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and for offences punishable under sections 411, 471 and 472, P.P.C. Since the proof of Harabah liable to Hadd was not available on record, therefore, accused was convicted and sentenced under section 392, P.P.C. And was also convicted for the offences under sections 411, 472 and 171, P.P.C. Ocular account of the occurrence was furnished by Muhammad Ashraf, complainant (P.W.8). He has given the detail of the occurrence as to how the motor car, he was driving was hired by the two persons from Gujranwala, taken to Mardan and then to some village in Swabi District where those two persons snatched the car at pistol point. After he was robbed of the car, he went on foot on the road and after covering some distance met Said Hakeem Shah, A.S.-I. (P.W.1), who was on 'Gasht' and made report to him which was recorded in the shape of Murasila Exh.P.A./1. The occurrence having taken place at 11-00 a.m. Was promptly reported at 11-45 a.m. By Muhammad Ashraf. Therefore, question of deliberation or consultation with the highups of the Police Department did not arise. Even if car was owned by Sarfraz Ahmad, the complainant could report the occurrence of snatching of the car to the police. He had identified the accused in the identification parade held by Raj Bahadar Qanoongo (P.W.6). Learned counsel for the appellant has not been able to refer to any rule/regulation or the case-law that identification held was improper. Raj Bahadar, Qanoongo (P.W.6) was directed by the Magistrate to conduct identification parade. None of the witnesses were put any question that photo of the accused was shown to the complainant before identification was held or complainant had seen the accused before identification parade. There is nothing on record to discredit the testimony of Muhammad Ashraf complainant. He has given true version of the incident and has to be believed.
19. Amir Khan A.S.-I. (P.W.7) on receiving information about the occurrence, at once reached the spot and took up the investigation of the case. He examined the complainant and then on 12-6- 1996 one Anwar (not examined) produced a 'Chit' Exh.P.1. To him on which address of Syed Zahid Fazal was written. He got recorded his statement under section 164, Cr.P.C. House of the accused was searched who was not available. Accused's brother produced photo .Of accused which was taken into possession vide recovery memo. Exh.P.C./1. Accused was arrested on 16-6-1996 while driving motor-car No,1288/GAJ on Sher Shah Road. Motor car along with brief-case containing registration of different motor cars, number plates, National Identity Cards of different persons and army uniform was recovered. At the instance of the accused pointation memo. Exh.P.C.3 was prepared. Amir Khan, Investigating Officer got recorded the confession of the accused from Muhammad Shoaib Khan, Judicial Magistrate (P.W.5). He also got the accused identified in the identification parade held by Raj Bahadar, District Qanoongo (P.W.6) on the direction of E.A.C., Revenue. The recovery of motor car from the accused at the time of his arrest is proved bill Muhammad Saeed, A.S.-I., one of the marginal witness of the recovery memo. Exh.P.C./2. He had also witnessed the recovery of a 'Chit' Exh.P.1 vide memo. Exh.P.C. And that of photo Exh.P.2 vide recovery memo. Exh.P.C./1. Amir Khan and Muhammad Saeed P.Ws. Have given consistent statements. Except that they are police officials there is nothing on record to disbelieve them. Amir Khan, A.S.-I. Stated that nobody from the public was prepared to witness the recoveries. We all know that people generally avoid to become the witnesss to the recoveries, in such-like cases. The contention that key with which brief-case was opened was not taken into posses4on is devoid of force as in the recovery memo. Exh.P.C./2. Persian word " Az! " is written and it was taken into possession though not produced at the trial as it was not asked for and no objection was raised by the defence. The mere suggestions to the P.Ws. That they had cooked up the case for ulterior motive is not sufficient to discredit their testimony unless it was shown as to what was the ulterior motive due to which the case was cooked up. Confession made by the accused before Muhammad Shoaib Khan, Judicial Magistrate (P.W.5) though retracted appears to be voluntary and is corroborated by the evidence of, recoveries, identification of accused by the complainant during identification parade. It is true that Muhammad Shoaib Khan had not recorded specific question about police torture in the memorandum of inquiry but he has stated that he had asked the accused whether he was tortured by the police or not and after satisfying himself that he was making voluntary confession, his confession was recorded. Accused claimed to have sold the motor car to one Bashir and stated that since he was not paid the whole amount, and when he came to know that car was being driven by Muhammad Ashraf, he alongwith his co-accused Fazal Rahim (proclaimed offender) went to Gujranwala hired the car for Peshawar, came to Mardan and next morning went to Nazar Banda and snatched the car from the complainant, and drove it towards Mardan and handed it over to his co-accused, who then forged number plate and gave the car to him which he was taking for sale that on 16-6-1996 near Nazar Fazal Camp Police stopped him and car was taken into possession and he was arrested. Even if he had any claim over the motor car he had no right to snatch the car from the complainant. He could resort to legal course for recovery of amount. It is proved beyond reasonable doubt that accused committed robbery and he was rightly convicted and sentenced under section 392, P.P.C. His conviction under section 411, P.P.C. Was, however, unlawful. Conviction of accused under section 472, P.P.C. Was also not called for as there was no evidence proving that he made or counterfeited any seal or plate or other instrument for making an impression, intending that the same shall be used for the purpose of committing any forgery punishable under section 467, P.P.C. Section 467, P.P.C. Provides punishment for forgery of a document which purports to be a valuable security, will etc.
20. In the result conviction and sentence awarded to the accused under sections 472 and 411, P.P.C.
Are set aside, and he is acquitted of the charge under sections 472 and 411, P.P.C. His conviction and sentence under section 392/471, P.P.C. Is maintained. The sentence under section 392/171, P.P.C.
Shall run concurrently and benefit of section 382-B, Cr.P.C. Shall be extended to him.
' Appeal is disposed of as above.