GHULAM RASUL Versus STATE

ALI HUSSAIN QAZILBASH, J.- -This order will dispose of the present two appeals (Criminal Appeals Nos.180 and 181 of 1987) which arise from the same judgment of a learned, Special Judge Court for Speedy Trial No.11, Dera Ghazi Khan, dated 17-11-1987, whereby the four appellants were convicted under section 394/34, P.P.C. and sentenced to ten years' R.I. each with a fine of Rs.10,000 each, or in default to one year's R.I. each.

2. The facts, in brief, are that on 16-7-1987 at about 10.00 p.m. Abdul Majid complainant, en route to his house situate in Basti Piran Pirhar, Tehsil and District Dera 'Ghazi Khan, on his motor-cycle Honda CD-70, bearing registration No.DGA-3170, was waylaid by four unknown persons near Batil Mor. Two .of the accused were armed with rifles of .303 bore, one with Single Barrel .12 shotgun and one was empty handed. (The complainant has given in detail the physical description as well as of their dresses in the report). He had recognised each of them in the light of his motor-cycle. No sooner the complainant was stopped, one of the accused caught hold of his motor-cycle and the other switched off its engine, the third pointed his rifle at him and demanded of him to surrender all his belongings. On this the fourth accused took out from the complainant's pocket Rs.500 (100 notes of Rs.5 denomination each. papers of the motor-cycle and his national identity card. The said accused also relieved him of his wrist watch and on his resistance one of the accused inflicted a blow with the butt of the shotgun on the right side of his head, as a result of which the complainant fell down and while trying to catch hold of the gun, a piece of its butt came to his hand. In the meantime lights of some big vehicle were sighted from Taunsa side, on which all the accused ran away from the spot taking away the articles and the motor-cycle, leaving him (the complainant) in injured condition. The said vehicle was carrying a police party headed by Liaquat Ali, S.H.O. Incharge of Police Station Batil.

3. The report of the occurrence was made by the complainant to the said S.H.O. at the spot who recorded the same by way of a murasla which is Ex.P.B/1. He took into possession the piece of the butt of the gun P.1 and the blood-stained turban of the complainant P.2. He then sent the injured P.W. to the hospital and left Mulazim Hussain A . S .I . at the spot to safeguard the tracks of the accused He also recorded the statements of two of the persons under section 161, Cr.P.C. who had also arrived at the spot. Liaquat Ali S.H.O. then prepared the site plan of the place of occurrence, got the moulds of the footprints of the accused persons by the tracker, namely, Wahid Bakhsh, and took the same into possession vide memo Ex.P.N. alongwith the statement of the tracker under section 161 Cr.P. C. The broken piece of the butt of the gun which was handed over to him by Abdul Majid complainant had the number of the gun on it and in pursuance thereof this witness on 18-7-1987 proceeded to the office of the Deputy Commissioner Dera Ghazi Khan and recorded the statement of Ghulam Farid Arms Licensing Clerk under section 161, Cr.P.C. The perusal of the record indicated that the gun of the said number, i.e. , 29089, was issued to Ghulam Rasul son of Allah Dad, caste Jiani, resident of Basti Ali Sher, Tehsil and District Dera Ghazi Khan. On 12-8-1987 the witness in hand arrested the accused persons and on I5-8-1987 their identification-parade was held in the premises of the District Jail Dera Ghazi Khan in the presence of the Magistrate. In this identification parade the complainant identified all the accused correctly. On 16-8-1987, Wahid Bakhsh tracker identified the footprints of two accused, namely, Sikandar and Nabi Bakhsh, only. On 21-8-1987 Nabi Bakhsh led the police to the recovery of .303 bore rifle P:3, a leather belt meant for keeping bullets P.4 and number plate of the motor-cycle bearing registration No.DGA-3170 P.5 which were taken into possession vide memo Ex.P. D in the presence of Abdul Majid and Allah Wasaya P.Ws. On the same day Sikandar accused led the police to the recovery of another .303 bore rifle P.6, registration papers of motor-cycle DGA-3170, insurance papers of the said motor-cycle and the national identity card of Abdul Majid complainant bearing No.309-61-252371 and a sum of Rs.500 (five notes of Rs.100 denomination each), which were also taken into possession in the presence of the above witnesses vide memo Ex.P.E. Then the third accused Bilal on the same day led the police to the recovery of a .12 bore S.B.gun (P.11) wrist watch P.12 in the presence of the witnesses which were taken into possession vide memo Ex.P.F. On the same day, i.e. 21-8-1987, Ghulam Rasul while in police custody led to the recovery of a Honda CD-70 motor-bike bearing registration No.DGA-3170 which was also taken into possession. A .12 bore shotgun alongwith its licence was also recovered from the residence of Ghulam Rasul at his pointation vide memo Ex.P.O. The butt of this gun did not have a piece of which gun No.29089 was written. This witness also got recorded the statements of some of the witnesses under section 164, Cr.P. C. and after the completion of the investigation, complete challan was submitted to the Court.

4. At the trial, nine witnesses appeared in support of the case of the prosecution. The accused in their statements under section 342, Cr:P. C. denied the charge framed against them by the prosecution. They also denied the recovery of the articles at their instance from their respective residences and they also disowned the two rifles and the shotgun allegedly recovered at their instance. Ghulam Rasul also appeared as a witness in this case and made a statement under section 340(2). Cr.P.C. He deposed in his above statement that he was falsely implicated in a case by Mohi-ud-Din Inspector C.I.A. a month earlier to the occurrence. He and his brother Bilal were kept in the Police Station and they were shown to Abdul Majid complainant in the police station and were not produced before the Magistrate during the period of one month and that they have been falsely implicated in this case. In his above statement he, however, stated that the Police Inspector Mohi-ud-Din of C.I.A. Staff arrested him and his brother on the night between the 16th and 17th July, 1987, his licensed gun, its licence, a sum of Rs.500 and a motor-cycle belonging to him were taken over by the said Police Inspector.

5. After the conclusion of the trial, the learned Special Judge Court No.11, vide his judgment dated 17-11-1987, convicted the appellants under section 394/34, P.P.C. and sentenced each of them to ten years' R.I. and a fine of. Rs.10,000, or in default in payment of fine to one year's R.I.

6. We have heard the learned counsel for the parties. The evidence in this case against the appellants is the statement of Abdul Majid (PW.2) who has given eye-version account of the incident, corroboration of which has been sought from the identification parade conducted on 15-87-1987 (Ex.P. M. /1), the evidence of the tracker (Ex. P. H .) and of course the recovery of stolen articles at the instance of the appellants. The learned trial Court found the evidence quite satisfactory, found each of the appellants guilty under section 394/34, P.P. C. and sentenced them accordingly.

7. On the re-appraisal of the whole evidence, we however, have come to a different conclusion and we find that the case against the appellants is not free from doubt. Abdul Majid, the victim, who has appeared as P.W.2, is the only person who has furnished the eye-account of the occurrence. It is true that he has no enmity with the appellants and apparently no reason exists that he will falsely implicate them in the commission of the crime but certain aspects of the conduct of this P.W. are such which have compelled us not to place explicit reliance on, him. According to the F.I.R. lodged by Abdul Majid P.W., the occurrence took place at 10 at night on the highway when he was all of a sudden surprised and surrounded by a group of hostile people who were armed with various type of weapons. He was threatened, robbed at the point of gun and ultimately beaten, as a result of which he became unconscious. Now in a situation like the- one, it is beyond our comprehension that he would be mentally so alert to take note of in the light of his motor-cycle and then recount while making the report at the spot, the physical particulars of each of the accused, the type and the colour of clothes they were having on their persons and type of weapon each was armed with. This, we think, would be highly improbable even if there had been sufficient light and he had acquaintance with them. The evidence, however, is that the complainant did not know them previously. .

8. At the trial Abdul Majid P. W. had given only sketchy particulars of each of the appellants and there is nothing on the record to suggest that the particulars which the complainant had given at the trial did tally with the one given by him in the F.I.R. Even the Court has failed to observe whether the particulars given at the trial did in any manner correspond with the particulars given in the F.I.R. Further, at the trial this P.W. came out with an allegation that besides the other articles, he was robbed of a -sum of Rs.33,000 Even at the time of identification parade he had deposed before the Magistrate (Ex.P.M/1) that the accused had deprived him of a sum of Rs.33,000. But then this was not his case when he lodged the F.I.R. wherein he had alleged that Rs.500 (100 notes of Rs.5 denomination each) were taken out from his pocket. The above two versions thus cannot be reconciled at all. Either Abdul Majid was in fact robbed of Rs.33,000 or he is a big liar. Under the above circumstances it is hardly possible to place reliance on him.

9. The second piece of evidence which has been relied upon by the prosecution is the identification parade. The perusal of the record shows that besides suffering from other legal infirmities which have been alluded to by the learned trial Court, the identification parade also carried an inherent defect and that is that Abdul Majid P.W. did not describe the role played by each of the appellants at the time of p the commission of the offence. The same, therefore, has lost its, efficacy and cannot be relied upon. Reliance in this respect is placed on the case of Khadim Hussain v. The State reported in 1985 SCMR 721.

10. The third piece of evidence furnished in this ; that of Wahid Bakhsh (PW.7), the tracker. According to Ex.P.H., the tracker had identified only the footprints of Nabi Bakhsh and Sikandar appellants. At the trial, however, he deposed that he had identified the footprints of the two accused but he had conveniently forgotten to name the two particular accused. Besides, he has also admitted at the trial that:

"The place of occurrence is a main road, there is always traffic on the road, the footprints were on katcha road and the place of occurrence is adjacent to the pakka road."

There is nothing on the record that the tracker inspected the place of occurrence when the traffic had not started. Further, it is the case of the prosecution that soon after the occurrence the police party consisting of seven persons headed by the S.H.O. and two other witnesses, namely, Habibullah (PW.8) and Allah Wasaya (not produced), reached the place of occurrence where the report Ex.P.B, and the statements of P.Ws under section 161, Cr.P.C. were recorded. These persons who were nearly a dozen in number must have been walking and sitting on or around and adjacent to the place of occurrence, as a result of which the footprints, if any, must have been trampled and obliterated. Under the circumstances, therefore, there is hardly any possibility that the footprints of the appellants, in particular, would be available. Thus, this evidence is hereby, discarded.

11. The last evidence produced by the prosecution and relied upon by the learned trial Court is the recovery of the stolen articles from the appellants at their instance. All the appellants in this case were arrested on 12-8-1987, i.e., after about a month of the occurrence. The articles were recovered from all the appellants on 21-8-1987 in the presence of Abdul Majid (PW.2) and his cousin Habibullah (PW.8). Admittedly none from the locality of any of the appellants was associated with the recovery proceedings. The number plate of the motor-cycle bearing registration No. DGA-3170 (P.5) was recovered from Nabi Bakhsh. Registration papers of the said motor-cycle (P.7), insurance papers of the motor-cycle in question (P.8), national identity card of the complainant (P.9) and Rs.500 in five notes of Rs.100 denomination (P.10) were recovered from Sikandar at his instance. Bilal appellant then led the police to the recovery of a .12 bore shotgun (P.11) and wrist-watch (P.12). Ultimately Ghulam Rasul appellant led the police to the recovery of stolen Honda motor-cycle bearing registration No. DGA-3170 (P.13) .

12. It must be borne in mind that Nabi Bakhsh and Sikandar appellants are residents of a different village. If both of them had participated in the dacoity, it is not understood firstly as to why should they be satisfied with and be proud of retaining the number plate, the registration papers, the insurance papers of the motor-cycle and the identity card of the complainant only, more so when they had ample opportunity to destroy these insignificant articles. Secondly, why should they keep those Rs.500 intact for such a long time. They were either fools to the core or these articles must have been fabricated and planted by the investigating agency to enrope them in the commission of the crime. The possibility of fabricating the evidence against Sikandar and Nabi Bakhsh is discernible from the following admission of Ch.Liaquat Ali, S.H.O. (PW.9):

"It is correct that all the relevant documents are not on the prescribed forms but are on plain papers," and also from the admission of Abdul Majid P. W. that Ex.P.10/1-5 the currency notes were not the actually robbed and stolen property. Strangely enough not a single exhibit pertaining to the motor-cycle is available on the record. We wonder if the trial Court had the opportunity of looking at these exhibits because had it seen the plain papers alluded to by Liaquat Ali P. W., it would have come to a different conclusion.

13. So far as the evidence of recovery of stolen articles from Bilal and Ghulam Rasul appellants is concerned the less said the better. The wrist watch (P.12) belonging to Abdul Majid P.W. was alleged to have been recovered from Bilal. However, there is no evidence worth the name that Abdul Majid P.W. had recognized his watch as provided for under the law. Further, Abdul Majid complainant at the trial has alleged that Bilal appellant had snatched Rs.33,000 from him at the time of occurrence. But this allegation was belied by the other evidence led by the prosecution and no recovery of this amount was effected from Bilal when his house was searched. As for the recovery of motor-cycle from Ghulam Rasul appellant, it is case of the prosecution that on the second day of the occurrence, i.e., 18-7-1987, the Investigating Officer had positive evidence about the involvement of Ghulam Rasul appellant in the dacoity and an abortive effort was made by him on 18-7-1987 to arrest Ghulam Rasul appellant. le also failed to search the house of Ghulam Rasul on the said date. Ghulam Rasul was ultimately arrested on 12-8-1987 and no explanation has been furnished why no effort was made for his arrest and his house searched in the interregnum. It is not the case of the prosecution that Ghulam Rasul appellant was absconding or that there was any hurdle in the way of the investigating agency to conduct the search of his house. Further, it is admitted by Liaquat Ali (PW.9) that when on 21-8-1987 he visited the house of Ghulam Rasul appellant, the room from where the motor-cycle was recovered was not locked but was only bolted and the room wherefrom the gun (P.14) was recovered was also open. Both the articles, i.e. the motor-cycle and the gun, are costly items, it, therefore, does not appeal to one's mind that an accused will keep them in a house which was open and absolutely unprotected. Therefore, an adverse inference about the conduct of the investigating agency can be drawn and it can legitimately be said that lot of padding has been made in the case of Ghulam Rasul .

14. The above analysis of the evidence has led us to the conclusion that the prosecution has not been able to establish its case against the appellants beyond reasonable doubt. We, therefore, accept the appeals, set aside the conviction and sentence of the appellants by giving them the benefit of doubt. They shall be released forthwith if not required in any other case. The gun Ex.P.14 which is licensed in the name of Ghulam Rasul appellant be returned to him. The order of the trial Court with regard to rifles Exs.P.3 and P.6 is maintained and so is the order with regard to the property of Abdul Majid.

M.I. /G-64/S Appeals Accepted.