ࡱ> [ pbjbj 8ΐΐg,=====QQQ8\4QD0///fff`DbDbDbDbDbDbD$FH:D=fffffD==//7D   fd=/=/`D f`D  ; ?/isQ<"LDD0D<HfHD ?H= ?@ff fffffDD fffDffffHfffffffff : IN THE HIGH COURT OF SINDH, KARACHI Criminal Appeal No.114 of 2009 Criminal Jail Appeal No.128 of 2009 Criminal Appeal No.142 of 2009 Criminal Appeal No.154 of 2009 Criminal Jail Appeal No.247 of 2009 Appellant Mushtaq Ahmed through Mr. Nisar Ahmed Bhambro, advocate in Cr. Appeal No.114/2009. Appellants Bahadur, Asmatullah, Azizullah and Shabbir Ahmed in person produced in custody in Cr. Jail Appeal No.128/2009. Appellant Nabi Bux through Mr. Muhammad Nishat Warsi, advocate in Cr. Appeal No.142/2009. Appellant Riaz Ahmed through Mr. Khalid Mehmood, advocate, in Cr. Appeal No.154/2009. Appellant Muhammad Afzal, in person produced in custody in Cr. Jail Appeal No.247/2009. The State through Mr. Zahoor Ahmed Shah, Asst. Prosecutor General Sindh. Date of Hearing 20.04.2010. J U D G M E N T GHULAM SARWAR KORAI, J., These appeals are directed against the judgment dated 29.5.2009, passed by learned IVth Addl. Sessions Judge, Karachi (South), in which the appellants were tried for offences punishable under Sections 395,397,34, PPC in Crime No.485/2006, registered at Boat Basin Police Station, Karachi, on 07.10.2006. All the appellants were convicted and sentenced to suffer RI for 10 years each and to pay fine of Rs.100,000/- (Rupees one hundred thousand) each and in case of default thereof to suffer SI for 2-1/2 years more. The appellants were also convicted for offence punishable under Section 397, PPC and each of them was sentenced to suffer RI for seven years. The appellants were extended benefit of Section 382-B, Cr.P.C. and both the sentences were ordered to run concurrently. 2. The facts of the prosecution case are that Nasir Khan, Manager of the Allied Bank of Pakistan Limited, Marine Centre, Shireen Jinnah Colony, Block II, Karachi, lodged FIR on 07.10.2006 that his cashier Abdul Sattar, Officers Mumtaz Ali, Peer Muhammad, Messenger Muhammad Arshad, Security Guard Abdul Jaleel, staff Abdul Ghaffar Shaikh, Junaid Manzoor and 10/12 customers were present in the bank while at about 1225 p.m. a customer came at the gate, therefore, the door was opened by the guard and thereafter 5/6 persons forcibly entered in the bank and started firing, therefore, guard Abdul Jaleel, became injured and fell down. The culprits caught hold the cashier and took Rs.1,206,400/- from the counter and one mobile phone Nokia model No.2300 from staff. They also took Rs.4,825/- of the utility bills and from the customer Muhammad Munir Memon, they snatched Rs.125,000/-, two mobile phones of the Nokia company. The ages of the culprits were disclosed as 25/35 years, one was tall and remaining were having medium heights and all were wearing shalwar and kameez and speaking in Punjabi language. The complainant lastly stated that the culprits seen by him can be identified when again seen them. 3. After registration of the FIR the case was under investigation while above named appellants were arrested on 21.10.2006 by New Karachi Police Station in the alleged encounter. The custody of the appellants was given to the concerned police station on 22.10.2006 and after completing the investigation final report was filed. 4. During trial, copies were supplied to the appellants/accused under provisions of Section 265-C, Cr.P.C. vide Exhibit 2. The charge was framed as Exhibit 3. The appellants pleaded not guilty and their pleas were recorded as Exhibits 3-A to 3-H respectively. In order to establish the case, prosecution examined as many as twelve witnesses. 5. PW Mumtaz Ali, is employee of the bank. His evidence is that at the time of incident he was posted in the bank as officer of Grade III. Manager of the branch Nasir Khan, Accountant Ghaffar Shaikh, CD Incharge Peer Muhammad and two cashiers Abdul Sattar and Junaid Manzoor were present when the dacoity was occurred in the bank and in the incident security guard of the bank namely Abdul Jaleel became injured with the fire of one of the culprits. The culprits also made aerial firing in the bank and on gun point took Rs.1,266,000/- from the cashier, Rs.125,000/- from one Muhammad Munir Memon and so also his mobile phone. The culprits also robbed mobile phone from Pir Muhammad by threatening him not to chase them and after committing the offence accused made their escape. The appellants were identified by this witness in the proceedings before the Court. 6. PW Nasir Khan was examined, as he was Manager of the Bank. He deposed that it was 12.00 noon, when 5/10 customers were present in the bank, 5/6 persons entered into the bank and attacked upon security guard Abdul Jaleel, who became injured. He further deposed that he did not see the culprits, who committed the dacoity in the bank. However, he informed the police on Rescue 15. He further deposed that he was informed by cashier Abdul Sattar that two armed culprits in the bank snatched Rs.1,261,000/- from Abdul Sattar and also robbed cash of Rs.4800/- from the cashier of the utility bills, totaling Rs.1,266,228/-. Police reached there. He further deposed that Rs.125,000/- was also robbed from one of the customers so also a mobile phone. The police recorded his statement under Section 154, Cr.P.C., which he produced as Exhibit 5-A. 7. PW Abdul Sattar was examined as Exhibit 6. He deposed that on the date of incident he was posted as cashier in the bank. It was Holy month of Ramadhan, therefore, closing time of the bank was 12.00 noon. At about 12.30 p.m. one customer came at the bank, therefore, door of the bank was opened by security guard Abdul Jaleel. As soon as door of the bank was opened, 5/6 persons forcibly entered into the bank, whom the guard tried to restrain, upon which fight took place between them by starting firing resultantly the security guard Abdul Jaleel became injured. Abdul Sattar further deposed that he was overpowered by two culprits, who robbed Rs.125,000/-, one mobile phone from Muhammad Munir Memon, Rs.48,228/- from another cashier of utility and also Rs.1,261,400/- from the cash counter. Police was informed. They came there and recorded his statement and the statements of the other employees of the bank. He produced his statement as Exhibit 6-A. 8. PW Nasrullah Khan was examined as Exhibit 8. His evidence is that bailable warrants against witnesses Junaid Manzoor, Munir Hussain and Abdul Jaleel were given to him for execution and report, therefore, his evidence is not material to the case of the prosecution. However, he exhibited the same as Exhibit 8-A. 9. PW Peer Muhammad was examined as Exhibit 7. His evidence is that he is the employee of the bank since May, 2005. On the date of alleged incident he was present in the bank. At about 12.25 p.m. door of the bank was closed and it was the Holy month of Ramadhan and some of the customers were present inside the bank and were being taken out by the guard one by one. At that time he heard commotion at the gate and saw one person having pistol grappled with the security guard and in the meanwhile 3/4 culprits came inside the bank. They fired at the security guard, who ran towards the room of the Manager. The culprits robbed cash from the cashier, cash from the customers and so also mobile phones and thereafter they made their escape. The cash was counted and came to know that Rs.1,266,200/- were robbed by the culprits. The culprits also robbed Rs.4,000/- from the cashier of utility bills. He further deposed that his statement was recorded by the investigation officer. He was called by the Magistrate for identification parade. Accused were shown to him and identified four culprits but Magistrate has not prepared the memo in his presence and also his signatures were not obtained. He identified two accused persons in the Court who were present at the time of dacoity. 10. PW Sarfraz Ahmed was examined as Exhibit 9. His evidence is that at the time of incident he was posted at Boat Basin Police Station as police constable. Appellant Azmatullah was in custody and in his presence he allegedly disclosed that he can produce the motorcycle, which was used in the commission of the offence, therefore, he alongwith SIP Nasirullah, ASIP Israr took the accused Azmatullah, he led the police party to New Karachi Yousuf Goath, Allah Wali Bus Stop. He led the police party to katchi abadi and produced one motorcycle bearing registration No.KBJ-5525 from one house. Such mashirnama was prepared and he acted as one of the mashir. The mashirnama of recovery of motorcycle was exhibited in evidence as Exhibit 9-A. 11. PW Atiqullah Khan was examined as Exhibit 10. According to his evidence, SIP Nasrullah Khan took the appellants Asmatullah, Nabi Bux, Afzal and Shabbir in a police mobile to the place of incident, pointed by the appellants, which was Allied Bank of Pakistan in front of Ziauddin Hospital, at ground floor of Marine Centre, Karachi. The appellant Afzal allegedly disclosed that they were eight in numbers at the time of commission of offence and at the time of incident the security guard became injured by them. Such memo of place of incident was prepared by the investigation officer in presence of this witness and same was Exhibited as 10-A and 10-B. 12. PW Junaid Manzoor was examined as Exhibit 11. His evidence is that on the date of incident he was posted as cashier to collect utility bills in the bank. It was Holy month of Ramadhan, therefore, bank used to function in between 8.30 a.m. to 12.30 p.m. On the same day at about 12.30 p.m. he was maintaining balance account, Abdul Sattar Palijo was also sitting besides him as the cashier and he was dealing with the customer while 2/3 persons after pushing security guard of the bank entered into bank, they were also followed by 5/6 other culprits. He further deposed that accused were armed with pistols. One of the culprits fired upon security guard Abdul Jaleel, who received fire arm injury at his eye brow. One of the culprits robbed cash of Rs.4,800/- from him and cash from cashier Abdul Sattar Palijo. The culprits also snatched mobile phones from customer Muhammad Munir Memon, present in the bank so also cash was snatched from him and thereafter they made their escape. 13. PW Ghani Rehman was examined as Exhibit 12. His evidence is that on 21.10.2006 he was posted at Boat Basin Police Station, Karachi, in the Investigation Branch. He alongwith SIP Nasrullah and other police officials proceeded towards New Karachi as they received message from that police station. They took the custody of the appellants from the New Karachi Police Station and during interrogation all appellants confessed the commission of the offence, therefore, in his presence memo of arrest of the appellant was recorded by the investigation officer, which was exhibited in evidence as Exhibits 12-A to 12-D. 14. PW Zameer Ahmed was examined as Exhibit 13 and his evidence is that on 21.10.2006 he was posted at New Karachi Police Station as police constable. On that date, ASIP Akram Qureshi and PC Riasat were on patrolling duty. During patrolling, ASIP received spy information about the accused involved in the bank dacoity coming in the yellow cab from Surjani and are going towards Nagan Chowrangi, therefore, at about 12.15 a.m. they made Naka Bandi near Telephone Exchange and during checking they saw one yellow cab coming from Surjani, which was stopped. The persons sitting in the yellow cab started firing on the police party and the police party also started firing in their defence and five persons were apprehended by the police on the spot, who, on inquiry, disclosed their names as Asmatullah, having repeater of 12 bore, loaded with three rounds and cash of Rs.135,000/- was recovered from him. The second culprit disclosed his name as Shabbir and from his possession one TT pistol, loaded with three rounds was recovered. The third culprit disclosed his name as Afzal and from his possession one TT pistol loaded with three live bullets were recovered. The fourth culprits disclosed his name as Mushtaq and from his possession one TT pistol loaded with three live bullets were recovered and the last culprit disclosed his name as Nabi Bux, sitting at the driving seat of the said yellow cab and from his possession Rs.46,000/- were recovered by the police party. The recovered property and weapons were sealed by the police officer on the spot and prepared memo. This document was exhibited in evidence as Exhibit 13-A. Thereafter, police started searching of the other accused and while they reached near ground of Post Office, situated in Sector 11-I, New Karachi, saw three persons were sitting on the motorcycle and four persons were present nearby. They were challenged by the police party. They started firing so also by the police in their defence and succeeded in arresting five persons while two made their escape. The arrested persons disclosed their names as Azizullah, having one TT pistol, Bahadur Ali, having one TT pistol of 30 bore, loaded magazine with three live bullets and Rs.55,000/-, Riaz, having one revolver of 32 bore with five live bullets and Rs.19,000/-. The fourth one disclosed his name as Mukhtiar, having one TT pistol with three live bullets and the fifth person disclosed his name as Hashim, having one mobile phone of Nokia. Such memo of arrest and recovery was prepared and the same was exhibited in evidence as Exhibit 12-B. 15. PW Khushi Muhammad, was examined and his evidence is that on 27.10.2006, he was Judicial Magistrate in the Court No.VIII, Karachi (South), SIP Nasrullah produced letter dated 27.10.2006 for identification parade of the accused persons involved in Crime No.185/2006 for offences under Section 395,34, P.P.C. Then, he conducted identification test parade of the accused persons namely Bahadur Ali, Shabbir Ahmed, Asmatullah alias Punal, Mushtaque Ahmed alias Wadero, Muhammad Afzal through the witnesses namely Abdul Sattar, Muhammad Munir Memon, Junaid Manzoor and Peer Muhammad. By arranging five dummies and accused were directed to stand at the place of their own choice. Thereafter the witness was called one by one separately and in all four occasions the lines were reshuffled. Mashir Abdul Sattar identified the accused persons standing at serials Nos.3,6,8,12 and 14. Mashir Muhammad Munir Memon, identified the accused persons standing at serials Nos.3,6,8,12 and 14 and Mashir Junaid Manzoor identified accused persons standing at serials Nos.3,6,8 and 12 and Mashir Peer Muhammad identified the accused persons standing at serials Nos.3,6,8 and 12. Such report was prepared. The same was produced in evidence as Exhibits 13-A to 13-E. 16. PW Nasrullah Khan was examined as Exhibit 14. According to his evidence he was posted at Boat Basin Police Station in the investigation zone. He conducted the investigation of the case, recorded the statement of the complainant under Section 154, Cr.P.C., exhibited in evidence as Exhibit 5-A. FIR was also produced by him in evidence as Exhibit 14-A. He further deposed that during investigation the place of incident was inspected by him and prepared such memo, which is produced as Exhibit 6-A. From the place of incident, he took sample of blood of injured, one projectile of bullet and recorded the statements of mashirs Peer Muhammad, Abdul Sattar, Junaid and other employees of the bank. On 21.10.2006, he received information from New Karachi Police Station about the registration of the FIR for offence punishable under Sections 353,324,34, P.P.C and 13(d) Arms Ordinance. Accused arrested in that FIR disclosed the commission of the offence of the present case, therefore, this witness proceeded with his sub-ordinate to the New Karachi Police Station. He produced his entry of the Roznamcha as Exhibit 14-B. Appellants Muhammad Afzal, Bahadur Ali, Mushtaque alias Wadera, Shabbir, Nabi Bux, Riaz, Asmatullah and Azizullah were interrogated by him. They admitted commission of the dacoity in the bank, therefore, their formal arrest was made by this police officer in presence of SIP Ghaniur Rehman and SIP Israr Hussain. Such mashirnama of arrest was exhibited in evidence as Exhibit 12-D. Thereafter, the appellants accused were brought to Boat Basin Police Station. He also exhibited two memos of arrest and recovery of present accused from the New Karachi Police Station as Exhibits 13-A and 13-B. 17. During investigation the accused led the police party to the place of incident. Such mashirnama was prepared by him, produced in evidence as Exhibits 10-A and 10-B. He produced the accused before the trial Court for remand and made an application for holding of identification parade. Such application was exhibited in evidence as Exhibit 13-A. He issued notice to the witnesses for identification of the accused. Such notice was produced in evidence. On 30.10.2006, he produced four accused persons before the Judicial Magistrate. They were identified by the witnesses. He further deposed that during interrogation the appellants confessed that they reached to commit dacoity in a taxi and on a motorcycle. The taxi and motorcycle was also taken by him from the New Karachi Police Station as case property of this case and memo of seizure was prepared and exhibited in evidence as Exhibit 9-A. He produced the FIR in evidence as Exhibit 14-A, Roznamcha Entry as Exhibit 14-B, notice as Exhibit 14-C, road certificate as Exhibit 14-D, medical certificate as Exhibit 14-E, letter to doctor as Exhibit 14-F. 18. PW Dr. Jagdesh Kumar was examined as Exhibit 15 and his evidence is that on 07.10.2006 he was posted as Medical Officer at Jinnah Post-Graduate Medical Centre, Karachi, at about 3.00 p.m. he received injured person Abdul Jaleel. He was conscious and was brought by SIP Khalid Mahmood with the history of fire arm. He was examined and found lacerated punctured wound on fore-head near left eye brow inverted margin 1 cm in diameter, wound of entry, blackening present and reserved for X-ray and case sheet. Thereafter side of the prosecution was closed by the learned Deputy District Public Prosecutor, Karachi (South). 19. The statements under Section 342, Cr.P.C. of the appellants/accused were recorded vide Exhibits 17 to 24. They pleaded not guilty, claimed innocence but neither they examined on oath, as required under Section 314(2)(c), Cr.P.C. nor they led any evidence and after hearing impugned judgment was passed as stated above. 20. Heard arguments of M/s Nisar Ahmed Bhambro, Muhammad Nishat Warsi and Khalid Mehmood, advocates as well as appellants Bahadur Ali, Asmatullah, Azizullah, Shabbir Ahmed and Muhammad Afzal, produced in custody in person so also Mr. Zahoor Shah, APG, on behalf of the State. 21. With the assistance of the learned counsel for the appellants and personal arguments of the appellants present in custody so also by the learned APG and from the perusal of the record, it was noticed that evidence of PW Mumtaz Ali is immaterial for the case of the prosecution as in the last line of his examination-in-chief he deposed that he is not sure that the present accused were among the culprits at the time of incident. 22. The evidence of PW Nasir Khan is also immaterial for the case of the prosecution as he deposed in the examination-in-chief that he and other employees of the bank were under fear or pressure, therefore, he did not see the culprits, who committed the dacoity in the bank. He further deposed in his examination-in-chief that the culprits also did not come towards him. He also deposed that he cannot identify the accused present in Court to be the same, who committed the robbery in the bank. 23. The evidence of PW Abdul Sattar is also immaterial for the case of the prosecution as according to his cross-examination 20/25 people were inside the Court for identification parade. He identified five persons but he does not know whether any memo of identification parade was prepared and he cannot identify those five persons and so also he does not know their names present in the Court. 24. The evidence of PW Nasrullah Khan is that bailable warrants against witnesses were given to him for summoning them, which were exhibited in evidence, therefore, his evidence is not required to be discussed. 25. The evidence of PW Peer Muhammad is also immaterial as neither he was robbed by the culprits nor he received any injury. He was posted as officer in the bank at the time of commission of offence. At the time of recording of his evidence he identified two accused persons in the Court, out of eight, without their names and role while remaining appellants were not identified by him. He was also one of the witness by whom the accused were identified during identification parade and according to his cross-examination he deposed that it is correct to say that prior to going to Court he went to Boat Basin Police Station, meaning thereby before conducting identification parade the appellants were seen by him. 26. The evidence of PW Sarfraz Ahmed is also immaterial as he is witness of the recovery of the motorcycle and yellow cab taxi. Otherwise this is not a case of prosecution. 27. The evidence of PW Atiqullah Khan is immaterial to the case of the prosecution as he is witness of the place of incident allegedly pointed out by the appellants to the investigation office. 28. The evidence of PW Junaid Manzoor is also immaterial to the case of the prosecution as according to his evidence one of the culprits fired at security guard Abdul Jaleel, who became injured but none from the appellants was particularly pointed out by this witness as a responsible for the injuries of security guard Abdul Jaleel. At the time of recording of evidence he identified appellant Asmatullah, Shabbir Ahmed, Mushtaque Ahmed and Nabi Bux as accused, identified by him in the identification parade but no role against them was mentioned by the present witness. 29. The evidence of PW Ghani Rehman is also immaterial for the case of the prosecution as according to him the appellants admitted their guilt. If it was so then their confessional statements were required to be recorded by the investigation officer before the Judicial Magistrate. 30. The evidence of PW Zameer Ahmed is also immaterial to the case of the prosecution as the robbed amount allegedly recovered from the possession of the appellants. Neither this amount was produced in the Court in evidence except witness Abdul Sattar nor this amount was owned by the complainant-bank officer nor any order under Section 517, Cr.P.C. was passed in the judgment by the trial Court. 31. The evidence of PW Khushi Muhammad, learned Judicial Magistrate is also immaterial as identification parade was conducted by him. The identification parade was required to be conducted in the light of Article 22 of the Qanoon-e-Shahadat Order, 1984 and that role of each accused in the crime committed was to be mentioned by the identifier. He admitted in cross-examination that identification parade was held after 9 days from the date of arrest, meaning thereby on 30.10.2006. 32. The evidence of PW SIP Nasrullah Khan, the investigation officer is also immaterial as the appellants were arrested by the New Karachi Police Station in an alleged encounter and on 22.10.2006 the custody of the appellants was handed over to him. Though there was nothing with him to show that sufficient evidence was available with him against the appellants to connect them in the present case. 33. The evidence of PW Dr. Jagdesh Kumar is also immaterial as he examined Abdul Jaleel, injured Security Guard but Abdul Jaleel, Security Guard, himself has not appeared as a witness. 34. The statements of the appellants recorded under Sections 342, Cr.P.C. are silent to the extent of their false involvement but it is requirement of the law that prosecution has to prove its case. In the present case, date of incident is 17.10.2006 and FIR of the same was registered on the same day within forty five minutes and the appellants were arrested on 21.10.2006 by the New Karachi Police Station and recovery of the currency notes from appellants Asmatullah, Bahadur Ali, Riaz and Nabi Bux was effected but the same was effected in presence of police officials and even this amount was not shown in evidence to the witnesses except witness Abdul Sattar. This amount was not owned by the complainant as the robbed amount and no order was passed by the trial Court under Section 517, Cr.P.C. in the judgment. The requirement of the identification parade is that same may be held at earliest possible time but identification parade was held on 30.10.2006 after about three days from the date of letter given to the Judicial Magistrate. Security Guard Abdul Jaleel, injured person, was star witness but he was not examined by the prosecution for reasons best known to them. 35. Muhammad Munir Memon, the private person, who was also robbed by the culprits was not examined by the prosecution and even there are number of discrepancies in the evidences of the witnesses. If an injured person is not being examined, therefore, Section 397, PPC is not proved. On this point reliance is placed in the case of ASGHAR ALI alias SABAH AND OTHERS v. THE STATE AND OTHERS (1992 SCMR 2088). Late conducting of identification parade without role of the accused in the identification parade and without fulfilling the requirements of Article 22(4) of Qanoon-e-Shahadat Order, 1984 has no value in the eyes of the law. On this point reliance is placed on the following case law:- KHADIM HUSSAIN v. THE STATE (1985 SCMR 721); GHULAM RASUL AND 3 OTHERS v. THE STATE (1988 SCMR 557); SIRAJ-UL-HAQ AND ANOTHER v. THE STATE (2008 SCMR 302); SAJEELUR REHMAN v. THE STATE (2005 Cr.L.J. 464); ABDUL SALAM v. THE STATE (2006 Cr.L.J. 143) 36. For the foregoing reasons, I am of the view that the prosecution has failed to establish its case against the appellants. Identification of the appellants in the Court at the time of recording of their evidences without their role has no value in the eyes of the law, therefore, this appeal is allowed. The conviction and sentenced awarded to the appellants under the impugned judgment are set aside and they are acquitted. The appellants shall be released forthwith if not required in any other case. 37. Keeping the case on dormant file against accused Shahzad son of Nabi Bux and accused Papoo alis Pappi son of not known by the trial Court in the impugned judgment is also without justification as there is no evidence against them, therefore, this portion of the impugned judgment is also set aside. Karachi, April , 2010. 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