1. KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,302-T of 1999 filed by Muhammad Sheraz, Muhammad Rashid, Muhammad Riaz, Muhammad Azhar, appellants and Criminal Appeal No,303-T of 1999 filed by Muhammad Ishtiaq appellant who were convicted and sentenced by learned Judge, Special Court Anti-Terrorism Rawalpindi Division and Islamabad Capital Territory vide his judgment dated 18-12-1999 as under: All the appellants under section 148, P.P.C., three years rigorous imprisonment with a fine of Rs,5,000 and in default one month rigorous imprisonment each.
2. Under sections 396/149, P.P.C., death for committing the murder of Wajid Ali Constable with a fine of Rupees one lac each and in default one year rigorous-imprisonment.
3. Under section 7 of Anti-Terrorism Act, 1997, death. Under section 353, P.P.C. two, years rigorous imprisonment.
4. All the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
2. Briefly stated the facts of the case are that Raja Muhammad Riaz, Manager Habib Bank Ltd, Alipur Frash was working as a Manager in the said Bank. On 28-5-1997 at about 11-40 a.m. he was busy in his routine work when all of a sudden three persons entered into the Bank by pushing away the Police Constable Wahid Ali who was on duty. Out of three, one person was aged 25/30 years height 5'8" slim body having beared and armed with .30 bore pistol, the second was having height of 5'10", with small moustaches; wheatish colour aged 25/30 years and armed with klashnikov, the 3rd assailant was having a .30 bore pistol in his hand and his height was about 5'6". All the three accused tried to snatch the gun from the police guard who resisted upon which the first assailant who was wearing blue clothes fired a shot with his .30 bore pistol at the guard which hit on his head. The guard fell down and the accused who fired took away the gun of die guard. He pointing his gun straight came near the table of the complainant and made all the Bank officials to hands up. The remaining two accused out of whom one was armed with klashnikov took the Cashier to the strong room, from where he looted Rs,1,91,722 and the same into his bag. Out of other accused persons one stood out side the Bank while the other remained standing in side the gate. When all the accused ran away, the person who stood outside the Bank was aged about 21/22 years having shaved his head. The person who remained standing inside the gate was having the height of 5'7" colour weatish aged 29/30 years and was armed with .30 bore pistol. All the five accused after taking the cash and injuring the police Constable fled away while firing in the air in a yellow cab. The police official had succumbed to the injury at the spot.
5. After registration of the formal F.I.R. Exh.P.D/1 Muhammad Asghar, S.I. P.W.18 went to the place of occurrence, prepared inquest report Exh.P.A. C of the deceased Constable, took into possession an empty of .30 bore pistol and also an empty of 444 bore, one lead and one pellet and four crime empties of .30 bore and also blood from the flour through cotton vide memo.
6. Exh P.G, Exh. P E and Exh P F respectively, then the investigation was taken over by Muhammad Ziarat Inspector P.W.21, prior to that Asghar, S.I. had procured the arrest of Sheraz, Rashid, Riaz and Ishtiaq, they during the investigation admitted to have committed the dacoity, Muhammad Azhar was arrested on 28-8-1997 with a .30 bore pistol which was taken into possession vide memo.
7. Exh.P.A.L, on the same day, all the accused got recovered Rs,1,91,722 lying in bundles of denomination of Rs,100, Rs,50 Rs,10 and Rs,5 (Pak currency). The accused also got recovered U.S. dollars, Saudi Riyals and Sterling Pounds. All the Pak Currency notes and foreign currency were taken into possession vide recovery memos. Exh.P.O, Exh.P.Q and Exh.P.M respectively. The accused were then put to identification parade under the supervision of Tehsildar. On 2-9-1997 on the disclosure of Ishtiaq a .30 bore pistol P.56 was taken into possession vide memo. Exh.P.A.M. The weapons recovered from accused Sheraz, Rashid, Riaz, Azhar and Ishtiaq were sent to the office of Fire-arm Expert and this witness after completion of the remaining all formalities of the investigation challaned the accused to face the trial.
8. At the trial, prosecution in order to prove its case produced 24 witnesses in all, Dr. Muhammad Arshad was examined as P.W.1, then the learned D.D.A. tendered in evidence report of the Chemical Examiner Exh.P.A.I, report of the Serologist Exh.P.A.J, reports of the Director Technical FIA, Exh.P.A.K, Exh.P.A.K/1, F.I.Rs, Exh.P.A.N to Exh.P.A.R and closed the prosecution case, thereafter, the statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence and claimed substitution. After conclusion of the trial, all the accused were convicted and sentenced as stated above.
9. Learned counsel for the appellants after having read the entire prosecution evidence and order relevant material available on record submits that the appellants were not named in the F.I.R., the evidence of the identification parade has been disbelieved by the learned trial court, recovery of the dash amount has been planted' upon the appellants, merely, on the basis alleged recovery of money from five appellants conviction under sections 302/396, P.P.C. cannot be maintained, it was a case of single shot but five persons have been awarded death sentence, there is no report of the Fire-arm Expert exhibited on the record as the same was against the prosecution having found the pistol to be not in working condition, apart from recovery of Pak currency notes, U.S dollars, Sterling Pounds and Saudi Riyals were also allegedly recovered on the pointation of the appellant when according to prosecution case only Pak currency of Rs,1,91,722 was looted, and that the identification parade having been held on 18-8-1997 and 10-9-1997 when the occurrence took place on 28-5-1997, loses its significance and after such a long delay it was not possible for the eye-witnesses to have identified the accused. Lastly, submit that after rejection of the identification parade of the accused, the learned trial Court was long in convicting the appellants.
10. On the other hand, learned counsel for The State submits that though there are some inherent defects in the-prosecution case but the fact remains that the eye-witnesses have identified the appellants before the learned trial Court during the trial proceedings, they had got no enmity whatsoever to falsely implicate the appellants, ocular account is corroborated by medical evidence, recovery of looted money has been effected, on the pointation of the appellants the fire- arms were recovered and that the prosecution has been able to prove its case against the appellants.
11. We have heard counsel for the parties at a great length and have also gone through the record with their assistance. In the instant case, three eye-witnesses, namely, Raja Muhammad Riaz, Tahir Nawaz and Allah Bakhsh P.Ws. 5, 6 and 7 respectively appeard before the learned trial Court. Their evidence to the extent of identification of the appellants has been disbelieved, by the learned trial Court and the reasoning given by the learned trial Court, to our mind, are convincing moreover, the said eye-witnesses did not state the role of each and every appellant which they played at the time of occurrence, before the Tehsildar, who had held the identification parade " because the instant case it was very much necessary to bring whom guilt against the accused. After rejection of the identification parade now we are left with the evidence of recovery of cash amount from the appellants and the fire-arms. First of all, we will take up the recovery of looted money. According to recovery memos. the bundles of Pak currency notes of the denomination of Rs,100, Rs,50, Rs, 10 and Rs,5 were recovered but it was not so stated by the witnesses in the F.I.R. and also in their statements recorded under section 161, Cr.P.C. that the looted amount was in bundles. Secondly, the important point is that from the appellants allegedly U.S Dollars, Saudi Riyals and Sterling Pounds were also recovered but it was not the case of the prosecution that either there were foreign currency lying in the strong room and also looted or the Bank was also dealing with foreign exchange. The only allegation was of looting of Pak Rs,1,91,722. The Investigating Officer in fact had done too much pudding in the prosecution case and has destroyed the whole case.
12. There was only one injury on the person of the deceased which was attributed before the trial Court by the eye-witnesses to Azhar appellant. The report of the Fire-arm Expert was not got tendered the evidence by the prosecution and was withheld. In fact it was against the prosecution case because tendering to report, the pistol was found to be not in working condition. The Investigating Officer, namely, Muhammad Ziarat, Inspector P.W.21 during the cross-examination admitted that he took into possession the weapon of offence after a lapse of over 20 days, when the weapons of offence were taken into custody, those were lying open, the police of Police Station Airport did not secure the same in the shape of parcels, he did not join the accused when the weapons were secured, when he procured the weapons of offence they were lying open in a scattered position and that he immediately sealed the weapons separately into parcels and affixed the seal. He also admitted that had not got identified the weapons from the accused. In these circumstances, and the fact that the report of the Fire-arm Expert was not supporting the prosecution the recovery of weapons of offence does not advance the prosecution case.
13. It may also be noted here, that the learned trial Court has relied upon the identification of the appellants by the P.Ws. specially through the eye-witnesses when the trial was going on. The appellants had been appearing before the trial Court on many dates of hearing even before recording of statements of the eye-witnesses so it was very easy for the P.Ws. to have earlier seen them and then identified them before the learned trial Court.
14. The learned trial Court has also pressed into service as a circumstance to award punishment to the appellants in this case the fact of registration of two otters criminal cases, which had no connection whatsoever with the present occurrence. The learned trial Judge in our view, was wrong in getting support from registration of other cases against the appellants. No doubts, it can be taken into consideration while deciding the quantum of sentence to be awarded to an accused but merely on that basis, conviction on a capital charge cannot be granted.
15. For all that has been stated above, we are fully convinced that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt and the defence has been able to create dents in the prosecution story the benefit of which has to be extended in favour of the appellants. By extending the same benefit, we accept both these appeals and set aside the conviction and sentence recorded against the appellants by the learned trial Court. They are in Jail and they Shall be released forthwith if not required to be detained in any other case.
16. We are not oblivious of the fact that the events of dacoity and murders are at its peak but at the same breath we are also mindful of the fact that no innocent person should be put to the gallows on the basis of evidence having not come from an unimpeachable source rather are based on pedding, mala fidies and not worthy of credence. The learned counsel for The State before starting his arguments admitted that there are certain inherent defects in the prosecution which we have also highlighted above. In the instant case, conviction cannot be based merely on the basis of recovery of looted money and the fire-arm, which we have ruled out of consideration.