1. ' Appellant Muhammad Aijaz has preferred this appeal against judgment dated 21-7-1999, passed by VIth Additional Sessions Judge, Karachi-East, whereby the appellant was convicted under sections 393/398, P.P.C. And sentenced to undergo R.I. For 5 years with the benefit of section 382-B, Cr.P.C.
2. ' Briefly the facts of the case, as stated in the F.I.R. (Exh.4-A) are that complainant Nasir Hussain on 31-10-1997 at 2005 hours in his statement under section 154, Cr.P.C. Alleged that on the above dated 12-00 Noon he was carrying cash from the bank on his motorcycle No,HDF-7008. When he reached at Khawar Shaheed Chowk, Gulistan-eJauhar, two persons riding on motorcycle, hit their motorcycle with the complainant's motorcycle with the result that the complainant fell down. The two culprits took out theirpistols and asked the complainant to take out cash, but the complainant resisted and tried to catch hold one of the culprits, due to which the pistol of one of the culprits fell down. The complainant raised cries whereupon electrician Khalil Ahmed, company gunman Muhammad Aslam and Office Incharge Allah Bux came there. On seeking them, one of the culprits made his escape good on his motorcycle while the other accused, whose name later on learnt as Muhammad Aijaz son of Abdul Salam, was apprehended after struggle and his pistol with magazine loaded with four live bullets was also taken into possession. An information was given to the police through telephone. Thereafter, the police registered the case under sections 382/511 read with section 34, P.P.C. A formal challan was submitted by the police on 18-12-1997 under sections 393/398, P.P.C. Before the Court of Magistrate and the Magistrate sent the same to trial Court for disposal according to law., ' A charge was framed the appellant on 13-5-1998, which was read over and explained to the appellant, to which the appellant pleaded not guilty and claimed to be tried.
3. ' The prosecution, in order to establish the charge against the appellant, examined P.W.1 complainant Nazeer Hussain, who produced 154, Cr.P.C. Statement at Exh.4-A, memo. Of arrest and recovery as Exh.4-B, memo. Of inspection of place of Vardat as Exh.C-4, P.W.2 Khalill Ahmed at Exh.5, P.W.3, Khalil at Exh.6, P.W. 4 Allah Bux at Exh.7 and P.W.5 Muhammad Yaqoob at Exh.8 and thereafter the learned Trial Court vide order dated 20-5-1995 closed the side of the prosecution.
4. ' Statement of the appellant under section 342, Cr.P.C. Is recorded, who claimed himself to be innocent and took the plea that he was in Landhi where some persons have quarrelled with each other, he tried to separate them and in the meantime police reached there and arrested him. He further stated that he has been falsely implicated in this case. He showed his willingness to be examined on oath, but he did not lead any evidence in defence. The appellant in his statement under section 340(2), Cr.P.C. On oath stated that on the day of incident he was in Landhi where some persons quarrelled, he tried to separate them whereupon police came and arrested him. In cross-examination he denied the suggestion that he is deposing falsely in Court in order to save him from the conviction.
5. ' The learned Trial Court framed the following points for determination;
(1) Whether on or about 31-10-1997 at about 12-00 hours at Khawar Shaheed Chowk, Gulistan-e- Jauhar accused Muhammad Aijaz son of Abdul Salam alongwith unknown persons on gun-point tried to rob the complainant Nazeer Hussain and accused and Muhammad Aijaz was caught hold by the people gathered there and from his personal search one T.T. Pistol was recovered?
(2) Whether the accused has committed the offence under sections 393/394, P.P.C. Within the cognizance of this Court?
(3) What should the order be?
6. ' The Trial Court after hearing the arguments and perusal of the evidence brought on record gave its findings in affirmative, convicted and sentenced the appellant for 5 years.
7. ' P.W.1 Nazeer Hussain Shah, complainant of the case, whose statement under section 154, Cr.P.C.
8. Was recorded, wherein he stated that on 31-10-1997 at about 12 or 12-15 p.m. He was coming from bank with cash of Rs,1,10,000 as soon as he came out of the bank, i,e, Habib Bank Ltd. University Road Branch and crossed the road, two boys on motorcycle 125 Honda followed him. When he was only 1/2 k.m. Away from his office at Khawar Shaheed Chowk, the said two boys dashed their motorcycle in front of the complainant's motorcycle, as a result of which the complainant fell down from his motorcycle No,HDF/7008. Both the boys pointed their T.T. Pistols upon him. Whereupon, he raised cries and the culprits snatched cash from him. Three persons on his cries came in the first instance and caught a person, who had snatched the cash from the complainant. The other boy on seeing the people coming towards them, ran away. In the meantime somebody from the office telephoned police station and the police party arrived within 20 to 25 minutes. The person, who was apprehended with cassh, disclosed his name as Aijaz. During struggle pistol of appellant Aijaz fell down from his hands and on arrival of the police the appellant and the pistol were handed over to the police. Police prepared memo. Of occurrence and he lodged the report at police station. He produced 154, Cr.P.C. Statement recorded by the police as Exh.4-A and admitted his signature on it and also its contents. He also produced memo. Of recovery of pistol as Exh.4-B. He admitted the contents to be correct and identified his signature. He produced memo. Of occurrence as Exh.4-C and identified the accused/appellant in Court. He also identified the property present in Court. In his cross-examination he stated that his statement was recorded by police on the same day. He further deposed that he was carrying Rs,1,00,000 cash at the time of incident. He admitted that police had not recovered the cash from the accused. According to this witness only Managing Director of the Company had the knowledge that he was going to collect cash from the bank. In cross-examination he stated that he had visited police station 2 or 3 times after registration of the case. He denied the suggestion that two persons were apprehended at the time of incident, who were carrying T.T. Pistols. The place of incident is situated at a distance of about 1000 yards from the place where he had to reach. He admitted that the persons, who reached on his cries, were the employees of the Company. He denied the suggestion that the other members of the staff of Gul Construction Company had knowledge of his carrying the cash. According to him people station is situated at a distance of about 1-1/2 k.m. From the place of incident. The people, who had apprehended the accused/appellant produced the pistol to the police. He also denied the suggestion made by the defence counsel.
9. ' P.W.2 Khalil Ahmed in his statement that on 31-10-1997 he was installing tube-lights in the project Gul Construction situated in Block 9, Gulistan-e-Jauhar, when at about 11 to 12 noon, he saw two boys on motorcycle Honda 125 fighting with the complainant at Khawar Mushtaq Chowk. A gunman, posted at the roof of the building, went towards the place of incident, therefore, he also went running over there, where they saw the complainant who was an employee of Gul Construction. They saw a person going away on motorcycle and a person was apprehended by this witness with the help of 2 or 3 persons. The accused was having a pistol, which was lying on the ground. The cash was also lying scattered on the ground. Police Mobile was called, which reached and took the accused and property to police station. Police prepared memo. Of recovery at police station, which is Exh.4-B and admitted to be the correct and also admitted his signature. This witness also identified the accused/appellant and property present in Court. In cross-examination he deposed that at the time of incident he was busy in installation of the tube-lights. The distance between the place of incident and the project, where he was working, is about 90 meters.
10. According to him he had not on first sight recognized the complainant or the accused as one of the employees of the company. He had not seen the accused snatching cash from the complainant. When he reached at the place of occurrence, he saw pistol and some cash lying on the ground. The police reached within 20 to 30 minutes. He stated that he does not know whether the cash was shown to the police or not. He admitted that his signature on memo. Of recovery were not obtained at the spot but the signatures were obtained at the police station.
11. ' P.W.3 Muhammad Aslam in his evidence stated that on the day of incident he was on duty as security guard and was sitting on the roof of the double storeyed bungalow, situated in Block 9 of Gulistan-e-Jauhar. At about 12 or to 12-15 p.m. He say two motorcycle coming and trying to dash each other, as a result of which one of the motorcyclists fell on the ground. He did not recognize him, but went running there to save him. As soon as he reached at the spot, he saw two persons fighting and recognized complainant, who was an employee of Gul Construction Company, where he is also an employee. The person, who was driving the motorcycle on seeing him armed with the gun, ran away with his motorcycle. We apprehended one dacoit, who was fighting with the complainant. He was holding a pistol and four live cartridges. He identified the accused in Court and according to him the police was called on telephone, who took the accused/appellant and property to police station and his statement was recorded by the police.
12. ' P.W.4 Allah Bux examined vide Exh.7. He is also an employee of Gul Construction Company and deposed that on the day of incident he was present in the office at Gulistan-e-Jauhar and came out on hearing commotion, where he saw two persons fighting with each other. When he reached near them and recognized Nazeer Hussain (P.W.1) employee of the company. He deposed that the robbed cash was recovered from the accused/appellant and notice one pistol lying on the ground.
13. He further deposed that from there police was called on phone and police reached within 15 to 20 minutes at the place of occurrence. Police prepared memo. Of Vardat as Exh.4-C and completed other formalities at police station. He identified the accused/appellant.
14. ' P.W.5 Muhammad Yaqoob, who was Investigating Officer of the case, examined vide Exh.8. He deposed that he received a telephonic call from complainant Nazeer Hussain that an attempt was made to rob cash from him by two culprits, who dashed motorcyle and on resistance and cries by the complainant, the employees of Gul Construction were attracted at the Vardat, when one of the culprits made his escape good on motorcycle and the present accused/appellant was apprehended by them. He further deposed that he reached on the spot and the present appellant was arrested alongwith one T.T. Pistol in presence of witnesses. He further deposed that no cash was snatched by the appellant. He only identified the appellant. He neither produced the alleged pistol recovered from the appellant nor the loaded magazine with live bullets. This witness has not explained the delay in lodging of F.I.R. Or arrest as well as delay in preparation of 'memo. The cross- examination of the Investigating Officer is reproduced as under:-- "It is correct that .32 bore pistol was given to me by employee of Gul Construction Company. It is correct that time is not mentioned in fard-e-moaina, arrest and recovery. It is correct that F.I.R.
15. Shows the time of incident as 12 o'Clock. It is correct that F.I.R. Was lodged after delay of 8 hours. It is correct according to F.I.R. Accused was arrested at 1850 hours. It is correct accused was in possession of Gul Construction Company from 12 O'Clock to 1850 hours. It is correct in F.I.R. It is mentioned that accused tried to snatch the cash. It is correct employee of Gul Construction Company did not produce any cash to him, which accused tried to snatch from him. It is correct complainant did not disclose about cash of Rs,1,10,000 only. It is correct the complainant did not disclose in his 154, Cr.P.C. Statement that in what thing complainant was bringing the cash. It is correct he did not send the pistol to Ballistic Expert. Pistol was sealed at the spot. I did not take signature of any witness on the seal of the pistol. Case property is not present in Court. It is correct I am. Investigating Officer of the case. It is correct I did not confirm from the Bank whether the cash was with the employee of Gul Construction Company or not. It is correct I did not show any accused as absconder in the challan. It is correct during investigation I did not come to know about the second accused. It is correct that I submitted the challan after 40 days. It is correct at the time of incident I was not present here. It is right that what complainant disclosed me I prepared the case according to that."
16. ' The learned counsel for the appellant has argued that there is a delay in registration of the F.I.R.
17. Which shows that the case has been registered after deliberate consultation. He has also pointed out that the challan has also been submitted after delay. The learned counsel for the appellant has also referred to the contradictions in the statements of the witnesses and referred to a judgment reported in PLD 1994 FSC 34 on the point of delay and 1996 PCr.LJ 361 and 1991 PCr.LJ 503 with regard to the submission of challan after statutory period. He has also submitted that no recovery has been made in respect of the cash and he has also pointed out the facts in recording of statement of accused under section 342, Cr.P.C. Regarding the arrest on the spot as well as the recovery of pistol.
18. ' The learned counsel for the State has supported the judgment. I have heard the learned counsel for the parties and perused the record.
19. There are material contradictions in the depositions of witnesses, inasmuch as none of them is consistent about the alleged recovery of T.T. Pistol from the possession of the appellant or the same was lying on the ground when the police reached there within a short period of 15 to 20 minutes of the incident. There is no explanation either in the evidence of the complainant or Investigating Officer about the delay in lodging F.I.R. After 8 hours. Such delay is fatal to the prosecution and it cannot be ruled out that the same has been registered after deliberate consultation. It has come on record that the appellant was detained in construction company's office for about 8 hours so also seizure memo. Was prepared after about 7 hours of the incident despite the fact that police station was at a distance of about 1-1/2 k.m. From the place of incident.
20. The evidence led by the prosecution lacks corroboration from any independent source. There are material contradictions, infirmities and inconsistencies in the testimonies of prosecution witnesses, whose statements have been reproduced above. After appraisal of the evidence led by the prosecution, which is full of infirmities, the very assertion of snatching of cash is belied by none else, but by the Investigating Officer of the case. According to him no cash was snatched, nor he has seen any cash. The site inspection memo. (Exh.5-C), which was prepared by him, is silent about the cash, which was lying scattered on the ground. As per statement of P.W.1, P.W.2 and P.W.3 are not natural witnesses. P.W.2, who is an electrician, has failed to explain that under what circumstances he was present alongwith the security guard and that how they noted a quarrel at a distance of about 1-1/2 k.m. Away from the office of Gul Construction Company and they heard the commotion and also ran to rescue the complainant from the robbers. In fact, both of them have not been able to justify their presence at the spot, therefore, their statements cannot be believed. The conduct of the complainant is shrouded in mystery as no other person from the vicinity was attracted at the place of Vardat, who have witnessed the incident or commotion. The evidence of all the three prosecution witnesses is unreliable and no inference can be drawn from it. The prosecution has suppressed the truth and have come up with their own version which creates doubt. It is also not understandable when the security guard of the company, who was duly armed, was attracted, as such how the other culprit made his escape good on motorcycle, when, according to the complainant both the motorcycle were lying on the ground. The challan in the present case has been filed after a statutory delay without any explanation. The evidence of the Investigating Officer is silent about any case under section 13(d), Arms Ordinance.
21. ' In view of the above stated facts and the case-law cited by the learned counsel for the appellant, I have no hesitation to observe that the prosecution has failed to establish guilt of the appellant. For these reasons I allow this appeal and set aside the conviction and sentence of the appellant giving him the benefit of doubt. The appellant be released forthwith if not required in any other custody case.