RAHMAT HUSSAIN JAFFERI, J.---The present appeal is directed against the judgment dated 13-5- 1999 passed by the Anti-Terrorism Court No,IV, Karachi, in Special Case No,12 of 1999 (State v. Faisal Mushtaq and another) by which the learned Judge had acquitted the respondents in respect of the charge framed by the Military Court No,III on 2-124998, under sections 392/34 of the P.P.C, 7 of the Anti-Terrorism Act, 1997, 13-D and 13-E of Pakistan Arms Ordinance, 1965, when the case was pending before the said Court. The State was dissatisfied with the said judgment; therefore, this appeal has been filed.
2. The facts giving rise to the present appeal are that on 2-12-1998 at about 9-45 a.m., the complainant Manzoor Hussain, who was clerk in Nauman Public School, Shah Faisal Colony, left the school for getting photostat copies of some documents on his motorcycle bearing No,KCM696.
When he reached corner of street near Ibrahim Ali Bhai School, two persons armed with pistols stopped his mortorcycle, snatched and took away the same. An unknown motorcyclist came at the scene of the incident, the complainant requested him to take him to Police Station Shah Faisal Colony who obliged him and then the complainant lodged the report at 10-00 a.m. On the same day.
3. The incident of stolen vehicle was flashed which was received by A.S.-I. Muhammad Nadeem, who was on patrolling duty alongwith PC Maqbool Shah, Mohsin Shah and Kazim Shah, on two motorcycles. Thereafter, they started searching the said motorcycle. They were armed with SMGs.
At about 1-00 p.m., they found two persons on the robbed motorcycle in Block No,2, Shah Faisal Colony near Chorangi Chowk. They tried to stop the motorcycle but the culprits increased the speed of the motorcycle and tried to run away. The police party chased them but after covering about 1/2 kilometre, near Agro Technical School the culprits fell down from the motorcycle-while turning towards a street. Thereafter, the culprits started firing from their pistols at the police party on which the A.S.-I. Muhammad Nadeem directed P.C. Kazim Shah and Maqbool Shah to fire one round each in the air in order to harass the culprits. On the said firing the culprits raised their hands and surrendered themselves before the police. The culprits were apprehended. The A.S.-I.
Muhammad Nadeem recovered one T.T. Pistol from each culprit. On checking, the pistols were found having four rounds in the magazine of each pistol. On enquiry the culprits disclosed their names as Muhammad Abrar and Faisal Mushtaq. From their search the A.S.-I secured Rs,100 from the respondent Muhammad Abrar and Rs,50 from respondent Faisal Mushtaq. The A.S.-I. Collected four empty rounds of T.T. Pistol fired by the respondents and two empty rounds of SMG fired by the police from the place of incident. He also secured the snatched motorcycle bearing No,KCM-696, which the accused were driving at the time of incident. He sealed the articles except the motorcycle and prepared the Mashirnama of arrest of the respondents and recoveries. The respondents and the properties were brought to the police station, where the A.S.-I. Lodged three separate F.I.Rs, one bearing No,125 of 1998 under sections 353/34 and 324, P.P.C. Against both the respondents, second F.I.R bearing No,126 of 1998 under section 13-D of The Pakistan Arms Ordinance, 1965 against the respondent Faisal Mushtaq and third F.I.R. Bearing No,127 of 1998 under section 13-D of the Pakistan Arms Ordinance against the respondent Muhammad Abrar.
4. The investigation of all four F.I.Rs, was handed over to A.S.-I. Amir Badshah who conducted the investigation and recorded the, statements of witnesses. On 8-12-1998, the respondents were produced before the Magistrate for holding identification parade through the complainant who had identified the respondents in the said parade. On 12-12-1998 the respondents were produced before the Magistrate for recording their judicial confessions where their judicial confessions were recorded. After completing the usual investigation the respondents were challaned in the Court of law but subsequently the case was sent to Military Court for trial where one single charge under sections 392/34, P.P.C., 7 A.T.A. 13-D and 13-E of the Pakistan Arms Ordinance was framed against the respondents. Thereafter, evidence of all the witnesses was recorded and entire proceedings were completed. The trial before the Military Courts was challenged before the Hon'ble Supreme Court of Pakistan in a case of Mehram Ali v. The State reported in PLD 1998 Supreme Court page 1445. Under the orders of the Hon'ble Supreme Court of Pakistan, the cases were transferred to Anti- Terrorism Courts hence the present case was transferred to Anti-Terrorism Court No,IV Karachi for trial. After perusing the record proceedings of the case, the Anti-Terrorism Court No,IV, Karachi, found that the entire pro&edings were completed by the Military Court but statements of the accused under section 342, Cr.P.C. Were not recorded, therefore, the Court had recorded the said statements and then decided the matter finally by acquitting the respondents through the impugned judgment.
5. After admitting the appeal notices were issued to the respondents. The respondent No,1 was served, but the respondent No,2 was not served. Subsequently warrants of arrest were also issued against respondent No,2 but the same were not executed. Therefore, the appeal remained pending.
6. The learned Advocate for the respondent No,1 has stated that the appeal in respect of respondent No,1 is ripe to be disposed of finally, therefore, the same may be decided by separating vie appeal, against respondent No,2.
7. The learned A.A.-G. Has conceded that the appeal against the respondent No,1 may be decided after separating the appeal against the respondent No,2 as the same cannot be decided without the respondent No,2 being served with notice under section 422, Cr.P.C.
8. According to section 421, Cr.P.C, the Court can dismiss the appeal summarily. If the same is not dismissed but admitted then a notice under section 422, Cr.P.C. Is required to be given to the accused/respondent even if the appeal is under section 417, Cr.P.C. Once the appeal is admitted, it cannot be decided without serving the said notice upon the accused. But when there are several accused persons and some of them have been served and some of them have not been served, then in such situation the appeal against the unserved accused persons can be separated from the accused persons who have been served. There is no provision in Cr.P.C. To deal with such situation at the appellate stage. But the said point was examined by various High Courts in which it has been held that in the absence of any provision in the Code which would enable the Court to proceed with the appeal. In the absence of the absconding accused, the Court has no option but to adjourn the case till such time as he is served or he appears before the Court or the Court may split up the appeal and hear it in respect of those accused who have been served and keep the appeal pending in respect of the absconding accused. Reference is invited to AIR 1954 Nagpur 231 and AIR 1944 Calcutta 234.
9. In the present case the respondent No,2 has not been served with a notice under section 422, Cr.P.C. Even the warrants of his arrest have not been executed. It appears that he is absconding.
The respondent No,1 is appearing on the dates of hearing, the appeal is old, therefore, in order to decide the appeal against the respondent No,1 expeditiously and. In the interest of justice, the appeal against the respondent No,2 is separated from the appeal against the respondent No,l.
10. After separating the appeal against the respondent No,2, now we will deal with the appeal against the respondent No, 1 .
11. The learned A.A.-G. Has argued that the prosecution has led the overwhelming evidence against the respondent No,1 which is consisted of ocular testimony, identification test, recovery of motorcycle, pistol and judicial confession but the trial Court had not appreciated the evidence in its proper prospective by misreading the same, therefore, the trial Court had reached a wrong conclusion by acquitting the respondent No,1.
12. On the other hand learned counsel for the respondent No,1 has argued that ocular testimony is unbelievable which suffers from material inherent defects; that the identification test was not held according to law, therefore, it cannot be relied upon; that the recovery in the shape of motorcycle and pistol are doubtful for the reason that no person of locality was taken as Mashir. He has further argued that the judicial confession was not recorded in accordance with law as no required certificate was appended to the judicial confession; therefore, the learned trial. Court had rightly rejected the above pieces of evidence of the prosecution. He has supported the impugned judgment.
13. We have given our anxious consideration to the arguments and have gone through the evidence very carefully and find that the prosecution has led the evidence which is consisted of: (1)
Ocular testimony in the shape of statement of complainant Manzoor Hussain, (2) corroborative evidence in the shape of identification test and recovery of motorcycle and pistol and (3) judicial confession.
14. First of all we will examine the ocular testimony. The complainant Manzoor Hussain who was clerk in Nauman Public School, Shah Faisal Colony has stated that on 2-12-1998 at about 9-00 a.m.
He had left the school, on his motorcycle bearing No,KCM-696 in order to get photostat copies of some documents and when he reached near Ibrahim Ali Bhai School at about 9-45 a.m. Two persons armed with pistols, out of them one aimed pistol towards his head and second had pointed out pistol towards his chest and pushed him down on the ground and snatched his motorcycle. Thereafter, he took lift from an unknown motorcyclist and went to police station where he lodged the report at 10-00 a.m. He has further stated that he had shown the place of Vardat to the police. His statement is supported and corroborated by the A.S.-I. Amir Badshah of Police Station Shah Faisal Colony who has stated that on 2-12-1998 at about 10-00 a.m the complainant Manzoor Hussain came to the police station and lodged the report with regard to the incident of this case which was recorded by Duty officer namely A.S.-I. Yaqoob Ghazi. Then he alongwith the complainant visited the Wardat of crime and prepared Mashirnama.
15. Thus in this case the report of incident of motorcycle-snatching has been immediately lodged before the police station, within 15 minutes of the incident in which names of culprits were not shown. The complainant and A.S.-I. Were cross-examined by the respondent No,1 but nothing has come on record to disprove the factum of snatching of motorcycle. The defence counsel has also not disputed the factum of motorcycle-snatching, from the complainant. Thus the prosecution has proved the factum of snatching of motorcycle through ocular testimony of the complainant.
16. The connection of the respondent No,1 has been shown, through the evidence of identification test, recovery of motorcycle and pistol and confession of the respondent- No,l.
17. As regards the identification test of the respondent No,1 is concerned, it is the case of the prosecution that on 8-12-1998 an identification parade was held by the Magistrate Mr.Zahid Hussain Shah in his Court-room where both the respondents were mixed up with 10 dummies and then the complainant was called where he identified both the respondents. In order to prove this fact the prosecution has examined complainant Manzoor Hussain, Judicial Magistrate Zahid Hussain Shah and A.S.-I. Amir Badshah. The complainant in his statement has stated that he was informed through a notice by the Police Station Shah Faisal Colony to appear before the Court of Judicial Magistrate for identification of the accused persons on 8-12-1998 at 8-30 a.m. Accordingly, he went to the Court where identification parade was held and the accused were mixed up with 10/12 dummies and he picked up the respondents. This witness was subjected to cross- examination in which searching questions were asked and thereafter suggestions were made by the respondent No,1 the police had shown him the respondent No,1 at the police station and that the respondent No,1 was shown to him in the Court before identification parade, but he denied such suggestions. Mr. Zahid Hussain Shah, Judicial Magistrate in his statement has stated that on 8-12- 1998 the identification parade was held in respect of the respondents through the complainant Manzoor Hussain, the respondents were mixed up with 10 dummies and the complainant had correctly picked out the accused persons. He further stated that during the identification parade the complainant told him that the accused persons had snatched his motorcycle on pistol point on 2-12-1998. A lengthy cross-examination was conducted but nothing has come on record to discredit his evidence. Suggestions were made to the witness that the complainant had seen the accused before the identification parade and that he had deposed at the instance of the police but the witness had denied the same. He has also denied the suggestions that he had not taken any measures according to law for holding identification parade and that he just completed the form according to the wishes of the police (sic) P.W./A.S.-I. Amir Badshah has stated that the complainant was informed about the identification parade, which was to be held on 8-12-1998. He has further stated that he had taken respondents to the Court of Magistrate for holding identification parade. He has denied the suggestions of the accused that the accused were shown to the complainant at the police station or in the Court of the Magistrate before holding identification test.
18. Thus, according to the prosecution case only 10 dummies were mixed up with two respondents as such the ratio of the dummies was 5 to 1 which has been found to be insufficient in various authorities of High Courts and Hon'ble Supreme Court, particularly, the case of Lal Passand v. The State (PLD 1981 SC .142) where the ratio of dummies was pointed out to be 10 to 1 and further observed that it was not an inflexible rule. But at the same time, the Hon'ble Supreme Court in another case of The State v. Farman Ali and others (PLD 1995 SC 1) after considering the case-law of Lal Passand (supra) and other authorities has observed in paragraph No,9 at page 25 as under:- - "9. There cannot be any cavil with the proposition of law propounded in the above reports.
However, it may be pointed out that as a rule of prudence the Court insists upon having the ratio of dummies eight to ten per accused, but there is no statutory provision fixing the number of dummies in the Code of Criminal Procedure. It is not an inflexible rule. The Court in a proper case may dispense with the above required ratio if identification by the witnesses is not doubtful, and there are other corroborative pieces of evidence available on record."
19.It will be seen that first the motorcycle of the complainant was snatched by the culprits, then one of them pointed his pistol towards the head of complainant and second culprit aimed his pistol towards the chest of complainant and then he was pushed and put on the ground and then the motorcycle was taken away by the culprits. This shows that the complainant had sufficient time to see the culprits very closely. As such the complainant had no fleeing look or momentary glimpse of the culprits; therefore, the complainant could remember the faces of the culprits. Furthermore, the power to identify accused varies, according to the power and observation of individual to individual and observation might be based upon small minutiae, which a witness cannot himself describe or explain. As such it is impossible to lay down any broad principle as to exact amount of observation which is required in any particular case.
20.The main purpose. Of the identification parade is to satisfy the Investigation Officer of bona fides of the prosecution witnesses and it amounts simply to this, that certain individuals, whom they point out are persons whom they recognise as having been concerned in the crime. Thus the whole object of the identification parade is to see whether the accused is real culprit or not. Keeping this fact in mind, we have gone through the statement of the respondent No,1 recorded under section 342, Cr.P.0 in which the Question No:4 was asked with regard to identification parade and he replied the said question in the affirmative, it will be advantageous if both the question and answer are reproduced to understand the stand taken by the accused respondent No,1 with regard to the identification parade. The said question and answer reads as under:-- "Q.No, 4.--It has been further deposed against you that on 8-12-1998 you were put into identification parade before Judicial parade before Judicial Magistrate where you were picked up by the complainant Manzoor Hussain. What you have to say?
Ans.--Yes Sir."
21. From the above answer, it is clear that the respondent No,1 has admitted that the identification parade was held before the Magistrate in which he was correctly picked out by the complainant.
The stand taken by the accused during the cross-examination to the above mentioned witnesses is that he was shown to the complainant before the identification test but no such stand was taken by him in his statement under section 342, Cr.P.C. Thus it has become an admitted fact that the accused was correctly picked out in the identification parade. There is another corroborative evidence in the shape of recovery of motorcycle from the possession of the respondent No,1 within few hours and just after the incident, which we are going to show in the following paragraphs that the same was recovered from the possession of the respondent No,
1. As such presumption under illustrations (a) of Article 129 of Qanun-e-Shahadat Order can be raised which reads as under:-- "The Court may presume---
(a) that a man who is in possession of the stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen unless he can account for his possession."
22. As the motorcycle and pistol were allegedly recovered from the possession of the respondent No,1 at the one and same time, therefore, they are discussed together. The prosecution has examined three witnesses namely A.S.-I. Muhammad Nadeem, P.C. Maqbool Shah and A.S.-I. Amir Badshah.
23. A.S.-I. Muhammad Nadeem in his statement has stated that on 2-12-1998 at 10-30 a.m. Or 11-00 a.m he alongwith PC Maqbool Shah, PC Mohsin Shah and PC Kazim Shah were on patrolling duty on two motorcycles near Shama Shopping Centre where he received information from Habibullah about snatching of motorcycle bearing No,KCM-696 and was directed by the S.H.O. To be watchful and alert to apprehend the culprits, therefore, they were making rounds. At about 1-00 p.m. They found two persons riding on the said robbed motorcycle in Block No,2 of Shah Faisal Colony near Chorangi Chowk. They tried to stop the culprits but they increased the speed of the motorcycle and tried to run away, therefore, they chased the culprits for about 1/2 kilometre. When they reached near Agro Technical School the culprits fell down while taking turn towards street and then culprits started firing from their T.T. Pistols on ihem and then the police retaliated on which culprits stopped the firing and raised their hands. Thereafter, the culprits were apprehended and one pistol from each of them was secured. On enquiry the culprits disclosed their names as Muhammad Abrar and Faisal Mushtaq. The motorcycle bearing No,KCM-696, which the culprits were driving, was also secured. Police had also secured four empty bullets of pistol and two empty bullets of SMG. The property was sealed except the motorcycle. He has further stated that thereafter they brought the accused and property at the police station where he lodged the report. This witness was subjected to cross-examination where same searching questions were asked and same clarifications were obtained but nothing has come on record to discredit kis testimony.. The second witness examined by the prosecution on the above point is PC Maqbool Shah. He has given the same details of the incident as disclosed by the A.S.-I. Muhammad Nadeem and fully supported the prosecution case.
It will be only repetition of the same facts if they are given at this stage. This witness was also cross-examined by the accused in which some portion of the statement, which he had disclosed in his 161, Cr.P.0 statement were confronted. The said questions were with regard to Mobile reaching at the Vardat, non-mention of Chorangi, beard of accused, handing over the motorcycle, handing over the accused persons and weapons to the mobile and non-mention of police party in his 161, Cr.P.0 statement, which the witness had admitted that such facts were not mentioned in the said statement. Non-mention of above facts in 161, Cr.P.C. Statement can be termed as omissions which are minor in nature. Thiough these statements the main statement about the version of prosecution case has not been changed, therefore, it has no material effect on his evidence. After considering all the aspects of his statement, the accused has failed to bring, anything on record to discredit his evidence.
24.P.W. A.S.-I. Amir Badshah has stated that while he was searching for the culprits of this case he had received three F.I.Rs, bearing numbers 125 of 1998, 126 of 1998 and 127 of 1998. He had gone through the F.I.Rs, and came to know that the accused persons were arrested and recoveries i,e, weapons and motorcycles were made from them, therefore, he went to the police station where he received the memo. Of arrest and recovery of the said F.I.Rs, and thereafter he recorded the statements of witnesses.
25. After evaluating of evidence of the above witness, it has been proved beyond any shadow of doubt that few hours of the incident of motorcycle snatching the said motorcycle was secured from the possession of the respondent No,1 and pistol was also secured from him at the same time.
The respondent No,1 has not produced any licence of the pistol, as his case is that the pistol was not secured from his possession but he has failed to prove his case because neither he has examined himself on oath nor led any evidence in support of his case. Thus prosecution has proved the recovery of motorcycle and unlicensed pistol from the possession of the respondent No,1 beyond any shadow of doubt.
26.The learned Advocate for the respondent No,1 has attacked the recoveries only on the ground that no private persons have been made Mashirs in this case, therefore, the recoveries have become doubtful. On the other hand the learned A.A.-G. Has stated that the private persons ran away due to fear of firing, therefore, they were not made Mashirs in this case. He has referred to the evidence of P.W. A.S.-I, Muhammad Nadeem. We have gone through the evidence of A.S.-I.
Muhammad Nadeem wherein he has stated that the civilian people around the site ran away due to the fear of the firing, therefore, he took the signatures of two police constables as witnesses. He was cross-examined by the defence counsel on the above point in which he has stated that he had not mentioned such facts in the F.1.R. Or in the Mashirnama. The statement of the witness appears to be natural because there was exchange of fire-arm shots in between the culprits and the police, therefore, it must have created sense of fear and insecurity amongst the people where this incident had taken place. In such situations the natural course for the general public would be to either hide themselves or to run away from the place of incident so as to save themselves from the stray bullets of the weapons. In such situations if the said facts are not mentioned in the F.I.R. Or in the Mashirnama, it will not affect the recoveries. Moreover, there is no enmity whatsoever between the witnesses and the respondent No,1 nor they have any motive to falsely implicate the respondent No,1 in this crime. As such the non-association of the private persons in this case, in the present peculiar circumstances of the case, is not fatal to the prosecution case.
27. Now we will discuss the judicial confession of the respondent No,1. In order to prove this point the prosecution has examined two witnesses namely A.S.-I. Amir Badshah and Judicial Magistrate Zahid Hussain Shah. .
28. The A.S.-I. Amir Badshah in his statement has stated that on 12-12-1998 both the accused persons were produced before the Judicial Magistrate for recording their judicial confessions and that after recording the confessions of the accused persons they were remanded to judicial custody. The Judicial Magistrate in his statement has stated that on 12-12-1998 at 11-00 a.m. The S.H.O. Brought the two accused, persons for recording their judicial confessions; that he had ordered the S.H.O. To remove the handcuffs to the accused persons and leave the Court-room. He recorded the confessional statements of both the accused separately; one was recorded from 11- 00 a.m. To 1-00 p.m. And second was recorded from 1-00 p.m. To '3-00 p.m. He 'has further stated that before recording the confessional statements, he had cautioned the accused persons that they were not bound to make the statement and if they make the statement then it can be used against them as evidence. He has further stated that 'the accused were also made to feel free, without pressure, fear, and threat; that they were also told that they would not be handed over to the police whether they make the confession or not and after recording the judicial confession the accused were remanded to judicial custody. He has produced the confessional statement of the respondent No,1 as Exh."Y". He was cross-examined by the defence counsel in which he has admitted that he had not appended the mandatory certificate as 'required under sections 164 and 364 of Criminal Procedure Code to the confessional statement.
29. From the statement of the Judicial Magistrate it is clear that he had not appended 'the required certificate to the confessional statement. The requirement of section 164(3), Cr.P.C. Is that the Magistrate has to satisfy himself by questioning the accused that the confession made by him is voluntarily and after recording such confession he is required to make a memorandum at the foot of such record to the effect that he believes that the confession was voluntarily made. Neither such certificate has been appended to the confessional statement of the respondent No,1 nor the Magistrate has stated in the Court that he was satisfied that the confessional statement of the respondent No 1 was voluntarily made. This is a very major defect in the confessional statement and the evidence in the Court which cannot be cured under section 533, Cr.P.C. As such the confessional statement of the respondent No,1 in the present circumstances of the case cannot be safely relied upon. The trial Court has assigned valid reasons for discarding the confessional statement of the respondent No, 1.
30. For the reasons discussed above, the prosecution has proved that the respondent No,1 had snatched the motorcycle from the complainant and from him snatched motorcycle and unlicensed pistol were recovered. It has also been proved by the prosecution that when the police were discharging their duties in apprehending the respondent No,1 who was running away with the robbed/snatched motorcycle, the respondent No,l. Had fired at the police in order to deter them from discharging their official duties. This act of the respondent No,1 is falling within the definition of section 7 of A.T.A. Thus it is clear that the learned trial Judge has misread the evidence.
31. In view of above position the respondent No,1 has committed offences punishable under section 392, P.P.C., section 7 of the Anti-Terrorism Act and section 13-D of the Pakistan Arms Ordinance.
Therefore, the respondent No,1 is convicted under section 392, P.P.C. And sentenced to suffer R.I. For 7 years and to pay, a fine of Rs,25,000. In case of nonpayment of fine the respondent No,1 is directed to suffer R.I. For six months. He is also convicted under section 7 of the Anti-Terrorism Act and sentenced to suffer R.I. For seven years and to pay fine of Rs,25,000 in case of non-payment of fine, the respondent No,1 is directed to undergo R.I. For six months more. The respondent No,1 is also convicted under section 13-D of the Pakistan Arms Ordinance and sentenced to suffer R.I. For seven years. All the sentences are to run concurrently. The respondent No,1 is entitled for benefit under section 382-B of Criminal Procedure :Code. The respondent No,1 is present on bail. He is remanded to custody to serve the sentence. The impugned judgment is set aside to the extent of respondent No,1. The appeal is allowed to the above extent.
32. As the appeal against the respondent No,2 has been separated from the respondent No,1, therefore, non-bailable warrants of arrest be issued against him. The appeal would remain pending against him till he is arrested or surrenders before the Court.