' Criminal Appeal No.13 of 2004 has been filed under section 410, Cr.P.C. Read with section 25 of the Anti-Terrorism Act, 1997 by appellants, assailing the judgment dated 31-1-2004 passed by Mr. Muhammad Yacioob Khan Khattak, Judge Anti-Terrorism Court, Bannu, whereby on conviction under section 395, P.P. Appellants were sentenced to ten years each and a fine of Rs.20,000 each.
On conviction under section 7(1) of the A ti-Terrorism Act, they were sentenced to suffer two years R.I. Each. The sentences were ordered to run separately one after the .Other. The fine on realization, twenty percent of the same was ordered to be paid to the victims in equal share and the rest of the amount was to be deposited in Government treasury. On failure of recovery of fine, the appellants were sentenced to suffer one year S.I. Further. Benefit of section 382-B, Cr.P.C. Was extended to them.
2. The facts of the prosecution case as alleged in the F.I.R. Are, that on 17-11-2003 at 1300 hours Muhammad Ishaq, complainant, made a report in Police Station, Lakki to the effect that he was a wholesale dealer and on the fateful day, he alongwith his relative Abdullah Khan had gone to Lakki at morning time in his Motorcar No.7585-IDB which was being driven by Sher Nawaz for the collection of 'Ugrai'. After collecting `Ugrai', they were returning back from Lakki and at about 1230 hours when they reached near Minakhel Petrol Pump, they saw two persons, one having .303 bore rifle and the other armed with .30 bore pistol standing on one side of the road. One another person having handgrenade was standing on the other side of the road. When they reached near the accused, they stopped them on gunpoint. The person having pistol broke the side glass of the window of the car towards driver and forcibly entered inside the car. The other two accused also seated in the car and directed the driver to take the car to barren lands. After covering some distance, the accused conducted search of complainant and his companion and snatched Rs.1,27,018 from the complainant and Rs.10,000 from Abdullah respectively. After accomplishing the mission, they ran towards nearby bushes. The complainant stated in the F.I.R. That he could identify the accused if produced before him.
3. S. H .0. Usman Ghani (P.W.5) after recording the report (Exh.P.A.) of the complainant, arranged police contingent and left the Police Station in search of the accused. The accused were found at a distance of about 5/6 kilometers from the place of occurrence who, on seeing the police party, started firing at them. The police party also fired in self-defence as a result of which accused Akbar Zaman got hit and sustained injuries. Resultantly, accused Ibrahim Khan and Akbar Zaman were arrested whereas accused Najibullah succeeded in making good his escape. The S.H.O. Recovered Rs.38,600 and a pistol of .30 bore containing 3 live rounds of the same bore from accused Ibrahim Khan, .303 bore rifle having 5 rounds of same bore, a handgrenade and Rs.35,000 from accused Akbar Zaman vide recovery memos. Exh.P.R. And Exh.P.R.1 in the presence of marginal witnesses.
Accused Akbar Zaman was sent to the hospital for treatment. After completing the investigation in the manner described above, challan was submitted against the accused in Court.
4. The prosecution in order to prove its case against the accused, produced eight witnesses in all.
Accused were examined under section 342, Cr.P.C. Wherein they denied the prosecution allegations and professed innocence. However, they neither appeared as their own witnesses on Oath as required under section 340(2), Cr.P.C. Nor produced defence.
5. The learned trial Judge after having gone through the material available on file in the light of the arguments addressed before him by learned counsel for the parties, passed the impugned judgment holding that the prosecution 'has succeeded to establish its case beyond shadow of doubt and no or motive for falsely implicating the appellants has been pointed out.
6. Khawaja Muhammad Khan, Advocate appearing on behalf of the appellants strenuously contended that it is a case of sheer non-reading of evidence and conviction has been awarded on the basis of conjectural presumptions having no nexus with the record, which according to him, was never perused in depth. The learned counsel maintained that trial Court wrongly believed the witnesses being interested and police witnesses and no independent witness was examined by the prosecution in spite of the fact that alleged occurrence took place at Tajazai Road near Minakhel Petrol Pump Lakki on a busy metalled road. The learned counsel also questioned the recovery of currency notes, judicial confession of Ibrahim Khan accused, identification parades and the mode of investigation carried out in this case. Lastly, the learned counsel urged that at the most, if any offence is made out, that is under section 392, P.P.C. And not under section 395, P.P.C. And this fact alone is sufficient to indicate that the impugned judgment has been recorded in a mechanical manner without application of independent mind. In support of the pleas, reliance was placed on Muhammad Afzal v. The State PLD 2000 Supreme Court 816, Saeed ur Rehman alias Sheedoo and another v. The State 1997 PCr.LJ 1325 FSC, Muhammad Israr and another v. The State 2002 PCr.LJ 1072 Peshawar, Ashiq Hussain and another v. The State 2001 PCr.LJ 722 Lahore and Muhammad Hanif and another v. The State and another PLD 2003 Peshawar 164.
7. As against that, Mr. Gauhar Zaman Khan Kundi, Advocate for the complainant, raised a preliminary objection regarding maintainability of the appeal and submitted that appeal having been filed on 12-2-2004 against the judgment dated 31-1-2004 is barred by ten days and no plausible explanation has been furnished in the application for condonation of delay. TIt objection is not tenable. Having regard t facts and circumstances of the case and the reasons highlighted in the application for condonation of delay, I feel that the delay is excusable in the interest of justice and fair play. Arguing the case on merits, the learned counsel fully supported the impugned judgment and maintained that prosecution has brought sufficient material on record to associate the appellants with the commission of crime and learned trial Judge after assessing the evidence on record, has passed a well-reasoned and detailed judgment, which hardly calls for interference of this Court. To augment th contentions, he placed reliance on Kha Muhammad and others v. The State 1999 SCM R 1818, Mahmood Khan v: The State 2002 PCr.LJ 1402 Peshawar and Nasee Akhtar and another v. The State 2 PCr.LJ 187 (Karachi).
8. Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate-General for the State adopted the arguments advanced by learned counsel for the complainant and defended the impugned judgment whole heartedly.
9. The crime in question having take place on 17-11-2003 at 1230 hours a Tajazai Road near Minakhel Petrol Pum Lakki, the report was lodged wit promptitude at 1300 hours at Police Station, Lakki distance 6/7 kilometers from the site of occurrence. P.Ws. Muhammad Ishaq complainant and Abdullah Khan have fully supported the prosecution story giving all the necessary details. The version of P.Ws. Is consistent on major facts with, of course, discrepancies on minor points. The defence has not been able to shake the testimony of prosecution witnesses despite excessive cross-examination. The submission of learned counsel for the appellants that the prosecution evidence is discrepant and does not implicate the appellants with the guilt, is misconceived. When looked into in the general perspective of the case, these discrepancies do not go to the root of the case. Further, learned counsel for the appellants has failed to point out any background of bitterness and between the said witnesses and the accused so as to prompt the former to falsely implicate the latter in a case of this nature. It may not be out of place to mention here that during the trial, these official witnesses had not been suggested by the defence that they had animosity against the appellants whatsoever. In criminal cases, the evidence of the police officials cannot be discarded without considering the same on merits. Police officials who have no against the accused person, would be competent witnesses and their evidence cannot be distarded for the reason that they are police employees. It has also been contended with forces that the investigation in this case has not been carried out honestly which had materially prejudiced the interest of the appellants. This submission too does not carry weight. There is nothing on the file to show that the investigation was not conducted in a proper manner and the appellants were implicated due to ulterior motives. It is settled principle of law that the procedural defects and irregularities and sometimes even the illegalities committed during the course of investigation shall not demolish the prosecution case nor vitiate the trial. Much emphasis has been laid on the fact that Sher Nawaz, Driver of the motorcar has been withheld, which has damaged the prosecution case. The submission is not tenable. No doubt it is true that in ordinary law where best evidence is not produced in the Court, the inference is to be drawn against the party withholding such evidence but in the instant case, no such evidence has been withheld. Non-examination of Sher Nawaz is immaterial in this case. As noted above, immediately after registration of case, P.W.
Usman Ghani, S.H.O. Constituted a police party and succeeded to apprehend Ibrahim Khan and Akbar Zaman appellants from the nearby bushes whereas appellant Najibullah made good his escape. There was an exchange of firing between the parties, as a result of which, Akbar Zaman was hit. On personal search, an amount of Rs.38,600 and Rs.35,000 respectively was recovered from possession of the appellants. A pistol of .30 bore containing 3 live rounds of the same bore from Ibrahim Khan and a .303 bore rifle having 5 rounds of the same bore and a handgrenade from Akbar Zaman were also recovered. Identification parades were carried out on 5-12-2003 and 12-12-2003 in which the appellants were G picked up and identified by the complainant party. The legality of the identification parades has been challenged by learned counsel for the appellants mainly on the grounds that the identification Parades have not been conducted properly and prior to parades, the appellants were shown to the complainant.
The submission is not correct. It is evident from the record that all the legal formalities were complied with and no prejudice seems to have been caused to the appellants, Mere long interval in holding test parade and identification of accused would not itself be sufficient to discard the said testimony when the testimony with regard to it was also not challenged by the appellants in cross-examination as held in Arif Maseeh v. The State PLD 2001 SC 398. Needless to emphasize that the identification parades are held not as a rule of law but as a rule of prudence to eliminate the possibility of any mistake. I Holding of such tests is only a check against false implication but is a good piece of evidence against genuine culprits. It is pleaded on the strength of Muhammad Israr and another v. The State 2002 PCr.LJ 1072 Peshawar that no reliance can be placed on the judicial confession after oath was administered to the maker thereof, which was in contravention of established principles and contrary to the provisions of J sections 5 and 6 of the Oaths Act (X of 1873) and thereby the confessional statement becomes inadmissible in evidence. If the objection of the learned counsel is accepted as correct, even then, there is ample evidence on the file to link the appellants with the commission of crime in the shape of currency notes from their possession immediately after their apprehension and their identification made by the complainant party in the identification parades. In the last limb of arguments, an objection has been raised from the appellants' side that as three persons have been charged in this case. Section 395, P.P.C. Was not attracted. The objection is valid. Section 395, P.P.C. Is modified to section 392, P.P.C. This omission on the part of learned trial Judge does not appear to have caused prejudice to the appellants vitiating the trial. Conviction of the appellants is altered from section 395, P.P.C. To section 392, P.P.C. With no modification in the quantum of sentence awarded to the appellants.
10. In view of what has been gone above, it follows that the conclusion of the learned trial Court that the offence as alleged has been committed by the appellants and it has been so proved by the prosecution, finding no merit in this appeal, I dismiss the same.