WAQAR ASHRAF Versus THE STATE

RIAZ AHMAD, J. ‑‑Appellants Waqar Ashraf, Qaseem Shah, Shahid Ahmad and John Fredrick all stood their trial before the Judge Punjab Special Court for Speedy Trials at Multan on the charge under section 394 read with section 34 of the Pakistan Penal Code, for having robbed Yar Muhammad P.W. 3 of his Car No. MNA 7576. Vide judgment dated 28‑11‑1987, the learned Judge found all the appellants guilty on the aforesaid charge and accordingly convicted the appellants, and each of the appellants was sentenced to suffer R.I. for a term of ten years, and to pay a fine of Rs. 5,000 each, or in default of the payment of fine, to suffer further R.I. for a term of two years each. Under section 544‑A, Cr.P.C., each of the appellants was directed to pay Rs.2,000 to Yar Muhammad complainant as compensation, or in default of the payment of compensation, each of the appellants was sentenced to suffer imprisonment for a term of six months each.

2. Aggrieved by their convictions, the appellants have preferred this appeal under section 12 of the Special Courts (for Speedy Trials) Act 1987. The appeal was transferred for hearing at the Principal Seat. Through this Judgment, we propose to dispose of this appeal.

3. The occurrence in this case took place at about 2‑00 p.m. on 8‑4‑1986 within the area of Shamkot Tehsil Kabirwala at a distance of 8 miles from police station Kabirwala. The occurrence was reported to the police by Yar Muhammad complainant, and his statement Exh.P.G. was recorded by Rana Taj Ali P.W. 6 at 4‑00 p.m. and the same was sent to the police station for the registration of formal F.I.R. Exh.P.G./I, which was drawn by Khawar Zaman Sub‑Inspector P.W.

4. Statement of the complainant was recorded at Basti Ahmad Nagar. It may be further stated, that all the appellants were apprehended on the day of occurrence and the distance between the place of occurrence and the spot of the apprehension of the appellants was about 30‑40 Karms, while the distance between Ahmad Nagar and Khanewal Police Station was about 1 mile.

4. In brief, the complainant Yar Muhammad stated that he was a driver by profession, and was running a car No. MNA 7576 as taxi which was owned by Mirza Naseer Baig of Multan. The complainant further added, that on the day of occurrence, he was present at the taxi stand, when at about 9‑00 a.m. two of the appellants, namely, Shahid Ahmad and John Fredrick approached him, and hired his taxi for travelling to Shamkot in consideration of Rs.250. Both the abovesaid appellants boarded the taxi and proceeded towards Multan Cantt. Railway Station, from where, rest of the appellants, namely, Qaseem Shah and Waqar Ashraf joined them from a hotel. All the appellants then allegedly placed a suitcase P. 28 in the boot of the car, and the complainant then proceeded towards Bahawalpur Road under the impression, that the appellants had to go to Islam Kot instead of Sham Kot. When the complainant reached near Bili Wala at Bahawalpur Road, the appellants pointed out that the complainant was going into wrong direction, because their destination was Shamkot which is towards Khanewal. The complainant thus turned the taxi and proceeded towards Khanewal, and after crossing Khanewal‑Multan bypass put the taxi car on a Katcha road leading to village Shamkot. The complainant stated, that he had hardly driven the taxi for a distance of one kilometre on Kactha road, when the appellants asked the complainant to turn the car on the Katcha path towards Chah Noor Din Wala. The complainant obeyed the said direction, and had hardly covered a distance of three acres, when the appellants asked him to stop the car. Appellant Waqar Ashraf who was sitting on the front seat, while the rest of the appellants were sitting on rear seat of the car, directed the complainant to reverse the car. While the complainant was turning his car, Waqar Ashraf thrust a pistol into the mouth of the complainant, while the rest of the appellants pulled the complainant by collar of his shirt. The appellants took the complainant into their grip, and administered two injections on the left arm and the waist of the complainant, the complainant suspecting some foul game, pulled the wires of the switch of the car. The appellants then pushed the complainant outside the car, tied his hands` and legs and put the adhesive plaster on his mouth. The appellants then occupied the car, and tried to drive it; but since the wires had already been pulled the car could not be driven. Faced with this situation, all the appellants came out of the ear, and started running towards Khanewal. The complainant in the meanwhile tried to raise hue and cry, and some people who were passing nearby came to his rescue, and one of them untied the complainant, while the rest chased the appellants. The other villagers also came to know about the occurrence, they also started chasing the appellants. The complainant also followed the pursuit of the appellants. While chasing the appellants, he came across Taj Ali Inspector P.W.6 near culvert in village Ahmad Nagar. The Inspector P.W.6 having come to know about the incident, chased the appellants with other villagers in a vehicle. While he was chasing the appellants on the metalled road, he noticed some people gathering in the garden of Naseer Khan in village Ahmad Nagar. On enquiry made by the Inspector P.W.6 he was informed by the people in the garden, that some robbers were hiding themselves in the garden. The Inspector P.W.6 thus surrounded the garden with the help of the villagers, and warned the robbers to surrender themselves and thus the appellants handed over themselves to Taj Ali Inspector P.W.6, who brought them to the nearby Rajbah of Ahmad Nagar, where in the meantime, the complainant had also arrived. It was the same spot where the complaint Exh.P.G. was written by Taj Ali Inspector at the instance of Yar Muhammad P.W.3, which was sent to the police station for the registration of the case.

5. At the time of his arrest, the appellant Waqar Ashraf was holding a briefcase P1 in his hand, and when it was opened, a folding stengun P.2 was found alongwith two magazines P.3 and P.4, 32 cartridges P5/1 to 32, 8 plastic gloves P.6/1 to 8, 4 masks P.7/1 to 4, 1 syringe, a packet containing five empty ampules P.10/1 to 5, Shalwar P.11, Shirt P.12 were recovered. The appellant was wearing a jacket P.13. On his personal search a pistol P.14 with two magazines P.14 and P.14/1 was recovered from his jacket. The brief‑case also contained scissors P.15, wrist watch P.16 and two sunglasses P.17 and P.18, all these articles recovered from the briefcase and frog, that of the jacket of Waqar Ashraf appellant were taken into possession, vide recovery memo. Exh.P.B.

6. Qaseem Shah appellant was also wearing a jacket P.21 at the time of his arrest. He was also searched and a revolver P.19 with 53 live bullets P.20/1 to 53 were recovered and were taken into possession vide memo. Exh.P.C.

7. Appellant Shahid Ahmad was also wearing a jacket P.24 and from his search, a revolver P.22 alongwith 6 live cartridges P.23/1 to 6 and a rough sketch EXh.P.D., showing the location of various places between Khanewal and Multan and a sum of Rs.33 was recovered. These articles were taken into possession vide memo. Exh.P E.

8. Appellant John Fredrick was also wearing a jacket P 25 and the same was searched, a pistol P.26 with two magazines Exh.P.43 and P.44 one of which contained 4 live bullets P.27/1 to 4 were taken into possession vide memo Exh.P.F. attested by Taj Ali P.W. 6, Zahoor Hussain P.W. 2 besides Muhammad Ramzan (given up).

9. After having recovered these articles through the search of the appellants and the brief‑case, the police accompanied by the complainant as well as the appellants proceeded to the spot, where the Taxi No.MNA. 7576 on a Katcha path near Chah Noor Din Wala in village Shamkot was parked. From this spot, string P.29, a roll adhesive plaster and other pieces of plaster P.30 and P.31 lying in wheat field near the car were taken into possession vide memo. EXh.P.B.

10. A suit‑case P.28 was recovered from the boot of car and the same was searched. 4 pairs of shoes P.32/1 to 8, 4 shirts and Shalwars P.33/1 to 8, 1 bush‑shirt P.34, 2 woollen pullovers P.35/1 to 2, 2 trousers P.36/1 to 2, a shirt P.37, 1 glasses P 38 and three identity cards P.39/1 to 3 were recovered from the said suit‑case. All these articles were taken into possession vide memo. Exh.P.K. attested by Taj Ali P.W.6, Allah Divaya P.W.5 besides Abdul Rahim (given up).

11. The complainant had received some injuries on his person, therefore, he was sent to Civil Hospital Khanewal, where he was medically examined by Dr. Muhammad Idrees P.W.1 at 8‑40 p.m. on the day of occurrence, and the following injuries were noticed on his person:‑

(1) Contusion mark 3 cm x 1 cm with swelling 5 cm x 3 cm on the right temple area.

(2) Contusion mark 6 cm x 2 cm on the lower part of the forehead.

(3) Contusion mark 6 cm x 2.5 cm reddish blue with swelling 8 cm x 4 cm on the left cheek including upper plus lower lid of left eye. Left eye was red.

(4) Contusion mark 4 cm x 2 cm with a slight swelling on the brige of nose.

(5) Contusion mark 2.5 cm x 1.5 cm on the right cheek near right ear.

(6) Contusion mark faint in colour 3 cm x 2 cm on the lower part of right chest.

(7) Two pricking marks of needle one at left deltoid and one on the base of the neck.

Injuries were caused with blunt weapon. The doctor advised the X‑ray of some injuries, but the complainant did not get himself X‑rayed, therefore, the injuries were declared simple.

12. To prove its case at the trial, the prosecution in all produced 6 witnesses. Dr. Muhammad Idrees P.W.1 appeared to depose about the injuries on the person of the complainant. P.W.2 Zahoor Hussain proved the recovery memos. Exhs.P.F., P.C., P.D. and P.F. The complainant entered the witness box as P.W.3. Khawar Zaman who drew the FIR at the police station appeared as P.W.4. Allah Diwaya appeared to prove the recovery of string P.29, plaster P.30 and the roll P.31 from the place of occurrence, vide memo EXh.P.H. He also proved the recovery of suit‑case P.28 alongwith the articles recovered from it vide memo. Exh.P.K. Rana Taj Ali D.S.P. appeared as P.W.6.

13. The appellants in their examination denied the prosecution version, and submitted written statements in their defence.

14. According to Waqar Ashraf appellant, he alongwith other appellants had gone to Ahmadpur Sharkia, from there they had come to Multan on a pleasure trip on the day of occurrence. Appellant further stated that they hired taxi of the complainant for proceeding to village Nizam Pur. The complainant P.W.3 driver of the taxi refused to proceed to Nizam Pur on the plea that it was Katcha road, and he would not drive the car on it: Refusal of the complainant led to an altercation, and the complainant hurled a piece of mud at John Fredrick, and the appellant abused the complainant. Enraged by the conduct of the complainant the appellants threw brickbats on the taxi smashing its window screen and damaged it. The appellants then moved to Nizampur on foot with their brief‑cases. According to Waqar Ashraf, the complainant threatened them with dire consequences, because the taxi belonged to a Police Inspector, and told the appellants, that a lesson would be taught to them. According to appellant Waqar Ashraf the complainant brought the appellants to village NizamPur in the house of Subedar Muhammad Amin a relation of Waqar Ashraf, where the appellants were arrested. It is thus stated that the false case was registered and all the recoveries were planted on the appellants. The other three appellants also repeated the contents of the statement of Waqar Ashraf appellant. The appellants also led defence evidence and examined Muhammad Ibarhim, Muhammad Zikaria, Sardar Abdul Rashid, Rashid Ahmad Advocate, Mumtaz, Muhammad Akhtar A.S.I. and Muhammad Nawaz A.S.I., Muhammad Mansha Foot Constable, Muhammad Akram SDO WAPDA Kabirwala and Subedar Muhammad Amin, D.W.1 Muhammad Ibrahim stated about the credibility of Zahoor P.W. He stated that he was a notorious man, and was a thief and he had ejected him from his Chah because he had stolen cotton, and hence, in cross‑examination the witness admitted that father of the appellant Waqar Ashraf belonged to his brotherhood. He also admitted that Muhammad Ehsan, Muhammad Ashraf and Subedar Muhammad Amin of village Nizampur were related to the appellant Waqar Ashraf. He also stated that Chah Noor Din Wala was at a distance of about two squares from his Chah, and no such occurrence had taken place.

15. Muhammad Zikaria D.W.2 stated that no such occurrence had taken place, and he had filed an affidavit Exh.D.C. in the Court of the Additional Sessions Judge Multan in connection with the hail of the appellant. The witness further stated that 5/6 days after the occurrence, he was summoned at the police station Kabirwala, where he stated that he had been cited as a D.W., and his signatures on a blank paper were obtained. The witness further admitted, that Subedar Muhammad Amin was a relative of Waqar Ashraf appellant.

16. D.W.3 Sardar Abdul Rahim supported the statement of Waqar Ashraf appellant about the quarrel with the complainant due to his refusal to take the appellant to Nizampur on a Katcha road. Witness further stated that he was present at the time of the quarrel and told the complainant to take the car on the Katcha path because it was a good path, but the complainant refused. Witness further deposed that all the appellants then proceeded to Nizam Pur on foot. and while leaving, they damaged the car with brickbats. The witness further admitted that he had signed the recovery memos. P.H. arid P.J. whereby string P.29, adhesive plaster and the roll plaster were taken into possession, The witness admitted to have sworn the affidavit Exh.P.O. in support of the appellants in connection with their bail.

17. Muhammad. Ramzan was examined as Court witness who stated that he had signed the recovery memos. Exhs.P.B., P.C., P.E. and P.F. on the asking of Rana Taj Ali P.W.6 at 9 a.m. at the police station. The witness further stated that it only came to this knowledge that no occurrence had taken place at Chah Noor Din Wala. The witness admitted that Subedar Muhammad Amin was a landlord in the area.

18. D.W.4 Rashid Ahmad Advocate stated that in his capacity as Oath Commissioner, affidavits filed by the defence witnesses were sworn before him.

19. D.W.5 Mumtaz stated that Chah Hamid Wala does not fall in the area between bypass and Sham Kot.

20. D.W.6 Muhammad Akhtar MHC PS Kabirwala stated that Allah Divaya a recovery witness in this case was a P.W. in number of other cases.

21. D.W.7 Muhammad Nawaz ASI who was summoned to produce the personal file of Amir Baig Inspector Police stated that the file was not traceable.

22. D.W.8 Mansha Foot Constable P.S. Alipur stated that some cases had been registered against some police officials including Amir Baig Inspector.

23. D.W.9 Muhammad Akram SDO WAPDA stated that Zahoor D.W. was on duty from 8‑00 p.m. till 2‑30 a.m. on the day of occurrence, he had not obtained the short leave of the day of occurrence. The witness admitted that Zahoor Hussain was deputed to check the street lights of Kabirwala on the day of occurrence during the office hours. The witness further stated that Zahoor could have gone to his house at 12 o' clock on the day of occurrence.

24. Subedar Muhammad Amin P.W.10 stated that Waqar Ashraf appellant was the real nephew of his wife and had visited his house at 2‑30 p.m. on the day of occurrence alongwith other appellants, and all of them had reached his house on foot. According to the witness, all the appellants informed him that the taxi driver had refused to bring them to village Nizampur, because he did not want to ply his taxi on a Katcha road. The witness was further informed by the appellants that a quarrel had taken place between them and the taxi driver. At 6‑30 p.m. on the day of occurrence, a Sub -Inspector visited the house of the witness and had taken all the appellants with him on the plea that they had given beatings to the taxi driver and had also damaged the car. According to this witness, the Sub‑Inspector demanded Rs.5,000 to leave the appellant and since he had refused to pay the said amount, therefore, the appellants had been falsely involved in this case. The witness stated that seven years before one Izat Baig had approached him alongwith his son Amir Baig who was Inspector in Police and had asked to approach Major Ashraf father of the appellant Waqar Ashraf to help Amir Baig in a case registered against him. According to the witness he approached Major Muhammad Ashraf to help Amir Baig but the Major did not agree. It may be stated here that Izat Baig is the owner of the taxi. The witness further stated that he filed an application to the S.P. and D.I.G., Multan, but nothing was done. The witness admitted that Sham Kot and Nizampur are situated close to each other and many persons from the brotherhood of the witness were residents of the two said villages.

25. In addition to the above‑narrated defence evidence, documentary evidence was also produced in defence. Affidavits of Muhammad Mansha, Zafar Ali, Akram, Abdul Rehman, Ahmad Bux, Hasnat Ahmad and Muhammad Latif were exhibited. The learned trial Judge without having admitted them on the record observed that since these affidavits had not been formally proved, therefore, they cannot be read into defence evidence.

26. In addition to the affidavits discussed in para supra, certified copies of Exh.D.S. the statement of Allah Divaya P.W. (in this case) in a private complaint filed by Haji Gul Muhammad v. Muhammad Nawaz, etc. another certified copy of the report Exh.D.G. under section 1'73 Cr.P.C. in a case State v. Mir Dad showing that Allah Divaya was a P. W. A recovery memo. Exh . D . H . in a case registered vide FIR No.55 under section 13 of the Arms Ordinance was produced to show that Allah Divaya was a witness of recovery. Certified copy of F.I.R. 113, dated 14‑7‑1985 Exh.D.J. was also produced to show that Allah Divaya was a complainant in the case.

27. With the assistance of the learned counsel for the appellants, and the State we have carefully perused the evidence on the record of this case, and we have also heard both the learned counsel at length.

28. Truth or otherwise of the prosecution story hinges mainly upon the inherent worth of the statement of Yar Muhammad complainant P.W.3. We have to examine the inherent worth of his statement in the light of the other circumstances of the prosecution case. Fate of a case in the criminal law does not depend upon the number of witnesses. In a given case testimony of a sworn witness can be sufficient to believe the prosecution case, provided the credibility of such witness is not impeached by any, other circumstance on the record. In the present case hiring of the taxi of the complainant is admitted by the appellants. Hence, there is no doubt about the engagement of the complainant by taking the appellants to village Shampur. The appellants proceeded to their destination in the taxi of the complainant at about 9‑00 a.m. on the day of occurrence and in the first instance drove the car on Bahawalpur Road and after covering a distance of 10 miles, the appellants directed the complainant that the car was going in a wrong direction, because their destination was towards Khanewal side. This aspect of the case is very strange. If at all this version is to be believed, mere travel and direction of the car from Multan to Bahawalpur Road by itself would have been sufficient to check the complainant. Covering a distance of 10 miles on Bahawalpur Road and reaching at Bili Wala and from there turning back to Khanewal side is not intelligible to us. The second aspect of the case which has aroused our anxiety as to the probability of the truth of the prosecution case is that, while travelling towards the correct destination, the complainant stopped the car at the direction of the appellants, and at the crucial time he was asked to proceed to Nizam Pur. It must be noon time when this would have happened. At noon time in villages near a Katcha road it is not possible for us to believe that pistol would be thrust into the mouth of the complainant, and then he would to taken into grips by the appellants sitting in the car so as to inject controverts the assertion of the complainant that during the process of administering the injections to him he pulled out the wires of the switch so as to make the car unable to function is very hard for us to believe. If at all injections were administered which created no effect upon the complainant. It is strange as to why such futile injections would be administered. A Assuming for the sake of arguments that the injections had not created any effect upon the complainant, then we cannot believe that while in the grip of four persons in the car, the complainant pulled out the switch wires of the car so as to make the car unable to function. In our view, if the prosecution story is true, then the appellants would not have at all permitted the complainant to pull out the switch wires. This aspect of the prosecution story has also to be examined from another angle, whether the wires were so naked and uncovered as usual where in the motor car the wires switch cannot be pulled out so easily as claimed by the complainant. Hollowness of the prosecution story on this score can also be imagined that the complainant gave two versions about the pulling out of the switch wires. It was stated that he pulled the same with his legs while in Court he stated that he pulled the same with his hands We are not prepared to believe the truth of the prosecution case on this aspect.

29. The second limb of the prosecution case that the complainant was also taken out of the car, and was laid on the ground, his hands and legs were tied and the adhesive plaster was put on his mouth is also improbable and difficult to believe without any independent corroborative evidence. Imagine that the occurrence had taken place at about noon time in the most fertile area of Kabirwala near the wheat fields from where allegedly the plaster and strings were recovered. Can it be believed that at that particular time no body was working in the fields or such incident would have gone unattracted particularly so when the injections had not created effect upon the complainant. Applying the test of a prudent man, we are not prepared to believe that this part of the prosecution story is also true. Falsity of this aspect of the case is also manifest from the fact, that the prosecution has failed to produce the person who had untied the string with which the complainant had been tied. Thus judging the prosecution case in the totality, prosecution version is not probable and does not inspire confidence. Furthermore, if at all, the appellants had to commit the robbery, they would not have done so near the village or villagers where the relations of Waqar Ashraf also reside, and that too, at noon time at Katcha path. If at all the appellants wanted to commit robbery, they would have selected some other time and some other place so as to drive the car on a metalled road instead of Katcha road.

30. It. is further strange to note that having tied the complainant they did not search him at all. In such type of crime after overpowering the victim, the first effort is to deprive him of his valuables. In this case the prosecution case is silent as to the such search.

31. We have juxtaposed the defence version with that of the prosecution, and in our view, defence in this case reflects upon the prosecution case. All the appellants are admittedly students and they had engaged a taxi to proceed to Sham Kot, and then instead of walking on foot, they asked the complainant to take them to Nizam Pur on the Katcha road. The complainant refused to oblige them which led to a quarrel. The hot‑headed young students without realizing that the taxi was owned by a police officer invited trouble for themselves. No doubt they gave beating to the complainant and exchange of abuses had also taken place.

32. To satisfy ourselves whether in fact the car belongs to the family of police officers, we summoned Izat Baig as C.W., who admitted before us that he was a police employee and had been a driver to DIG Multan. He further admitted that his son was Inspector in Police and at the relevant time, he was not working in Multan range. We are thus of the view that no doubt quarrel had taken place, and the car must have been damaged by the appellants and the complainant was given beating by the appellants, but entirely a new and graver shape was given to the prosecution case to teach a lesson to the appellants.

33. Adverting to the recovery in this case, the corroborative evidence led to prove it does not inspire ecrifidence. Allah Divaya P.W.5 is admittedly a star witness. In the witness‑box, he denied to have appeared as P.W., but the documentary evidence belies him. The learned trial Judge also disbelieved Allah Divaya. As far as Zahoor another witness to the recovery is concerned, he is a line man in WAPDA. S.D.O. WAPDA was produced who stated that no short leave was obtained by Zahoor Hussain on the day of occurrence. According to the S.D.O., the witness was supposed to check the lights in Kabirwala till 2 p.m. In this view of the matter, we cannot believe that at the time of the occurrence, he would be near the Katcha path leading to village Nizampur. Another aspect as to the recoveries cannot be ignored that if at all the appellants were carrying the briefcase containing the stengun they would not have run with it for three miles. If at all they had run with the briefcase, they would have thrown it somewhere instead of being arrested with it. Hence, we cannot believe the evidence as to the recoveries, therefore, the same is discarded.

34. The upshot of the above discussion is that the defence version is more probable. Appellants were students in Rawalpindi and Ismalabad and had come to Multan where Waqar Ashraf had to proceed to see his relations in village Nizampur, and they got stuck up in a quarrel with the complainant i.e. the driver of the taxi which belonged to police officer, therefore, we cannot exclude the possibility of their false involvement. Accordingly, this appeal must succeed. Consequently, the conviction and the sentence awarded to the appellants is hereby set aside, they are acquitted of the charge.

S.A./W‑42/L Acquittal ordered.