SAHMSHIR ALI Versus THE STATE

RASHID AZIZ KHAN, J. --- Shamshir Ali was sent up. by Police Station Kotwali, Gujranwala, for trial, for an offence under section 392, P.P.C. Special Court (Suppression of Terrorist. Activities), Gujranwala, vide its judgment, dated 10-2-1993, found him guilty and sentenced under section 392, P.P.C. to 10 years' R.I. with a fine of Rs.1,00,000 or in default 3 years' R.I. He was however, given the benefit of section 382-B, Cr.P.C. Convict has appealed. This judgment shall dispose of the same.

2. Prosecution story in brief as disclosed in complaint Exh.P.A., lodged by Munawar Hussain Tammana, was to the effect that he was employed as Cashier in the Head Office, Municipal Corporation, Gujranwala. On 7-2-1991, at about 6 a.m., the first informant came to office to collect cash regarding the previous night. He was busy in counting the cash. The amount came to Rs.2,32,967. When door was opened, two armed persons, one was with Klashnikov and the other had pistol entered. Their description was given. They directed the person present there to go into the adjoining room and the door was bolted from outside. After taking the entire cash alongwith calculator they decamped. Another accused kept on standing on guard in the verandah.

Muhammad Younas, S.I. P.WS on 7-2-1991, recorded the statement Exh.P.A. and sent the same for recording of formal F.I.R. He came to the spot and prepared rough sketch Exh.P.C. of the place of occurrence. On 11-2-1991 he- arrested four persons under section 54, Cr.P.C. but discharged them as they were innocent. Thereafter he handed over the investigation. Shahid Mehboob Khan, Inspector, P.W.6, was entrusted with the investigation. He arrested the appellant on 13-4-1991 and sent him to jail on the following day for conducting identification parade. He made an application for holding of identification parade in Central Jail, Gujranwala, on 14-4-1991. After identification parade he obtained remand of Shamshir Ali accused from 30-4-1991 to 11-5-1991 bin he could not recover anything. Thereafter he sent him to judicial lock-up. Earlier some accused had been arrested by S.I. Farooq on 9-4-1991. After usual investigation he challaned the accused.

3. Prosecution in support of its case produced seven witnesses in all. P.W.1, Munawar Hussain Tammana had got the case registered. He was Cashier. He identified the appellant in jail as well. Abdul Majeed P.W.2 was present in Octroi Post with P.W.1. He supported the version given in the F.I.R. He also joined the identification parade wherein he had correctly identified Shamshir Ali appellant. Muhammad Ashraf, S.I. P.W3 on receipt of 8Xh.P.A., recorded the formal F.I.R. Exh.PA./1 P.W.4 Malik Masood, Magistrate First Class, Gujranwala, passed an order Exh.P.B./1 remanding him to judicial lock up on 14-4-1991. Muhammad Younas, S.I. P.W.S had initially investigated the case. Shahid Mehboob Khan, Inspector, P.W.6, had investigated the case and challaned the accused. Liaqat Ali, M.I.C., Gujranwala, P.W.'1 had supervised the identification parade wherein appellant Shamshir Ali was correctly identified by both the witnesses.

At the conclusion of the prosecution evidence appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. He neither appeared in his defence on oath nor produced defence evidence.

It was contended by learned counsel for the appellant that the case against the appellant was not proved at all. Submitted that no importance can be attached to the identification parade, because it was established from the record that the appellant had remained in custody with the police for quite sometime before he was sent to jail. Argued that the first informant in Court admitted that the police kept on taking the witnesses to different police stations to show every accused who was arrested. Argued that in such circumstances no reliance on identification parade could be placed. Submitted that no role was ascribed to the appellant by the witnesses who identified him. In the absence of the same conviction could not be sustained. Contentions were opposed by learned counsel for the State.

4. We have heard the learned counsel and gone through the evidence with his assistance. The case hinges on the testimony of Munawar Hussain Tammana and Abdul Majeed, P.Ws.1 and 2, respectively, who were eye witnesses of the occurrence, and thereafter had identified the accused persons as well. We have carefully gone through the statements of both the witnesses. Munawar Hussain Tammana P.W.1 had got the case registered. In cross-examination, he however, admitted that he could not identify the accused who robbed the cash. He also admitted in cross-examination that the police used to take them to different police stations where all the arrested persons were shown to them for identification; this continued for about a month. As far as P.W.2, Abdul Majeed is concerned, he identified the accused person but did not ascribe him any role. There is nothing on the record to indicate who was the one who took away cash.

5. For what has been discussed above, it is clear that no reliance on the statement of Munawar Hussain Tammana can be placed in view of the concession made by him. Even otherwise both the witnesses though identified the appellant yet did not ascribe him any overt act. It is not known whether he was driving the motor-cycle or was the one who remained outside in Verandah. As has been held in Khadim Hussain v. The State 1985 S C M R 721 and Ghulam Rasool and 3 others v. State 1988 S C M R 557, simple identification of an accused in identification parade would not be material unless the witnesses inform positively the role of the person so identified. Respectfully relying upon the judgments quoted above, we hold that the case of the prosecution was not free from doubt. Therefore, we accept the appeal and set aside the conviction and sentence of the appellant. He shall be released I forthwith if not required in any other case. Appeal is disposed of.

N.H.Q./5-427/L

Appeal accepted.