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Criminal Appeal No. 173 of 1976, decided on 24th May 1977.

‑‑ S. 9‑Identification‑Delay in holding identification parade not explained ‑Such identification to be ruled out of consideration. [Identification].

‑‑ S. 27‑‑‑Recovery ‑Mashirnama‑Contents of a mashirnama, do not constitute substantive a evidence.‑[Recovery‑Evidence].

‑‑‑ S. 394 read with S. 397‑‑Dacoity ‑‑robbery‑Case against accused established beyond reasonable doubt‑Conviction and sentence main tained.

--S. 397 react with Ss. 39 & 395‑‑Dacoity or robbery with intention to cause death or grievous hurt‑Section 397, merely a rider to Ss. 392 & 395 regulating punishment already provided‑Provision of S. 397 applies only to those parsons oho are armed with deadly weapons or cause grievous hurt to any person or attempt to cause death or grievous hurt.‑[Dacoity‑Robbery].

Qalandar Bakhsh and others v. The State P L D 1964 Kar. 269 ref.

Muhammad Hayat Junejo foe Appellants.

Muhammad Suluiman Memon, Add]. A: G. for the State.

Date of hearing : 28th April 1977.

The appellants were tried by a learned Judge of this Court for an offence tinder section 394 read with section 397. P. P. C. under the scheme of this Suppression of Terrorists Activities Act: All of them were convicted and sentenced to undergo R. I. for seven years each. resulting in his appeal.

2. Tae prosecution story, in brief, is that, on 14‑4‑1975, P. W. Karim Ali, the cashier of the Sind Road Transport Corporation left the office, on the Corporation's bus bearing No. K. C:. D.‑76, at about the mid‑day with Rs. 22,043.75 for depositing the same in the Dawood Mills Branch of the Habib Bank. He was accompanied by a Chowkidar by the name of Muhammad Hayat. There wore two other occupants of the bus ; the complainant; Bashir‑ur‑Rehman being its conductor, and Azara Shah being the driver of the bus. When the bus was negotiating a turn outside its compound, the appellants are stated to have entered the bus. There was a mild protest about their entry, but, as the appellants, Miran and Shaukat Hayat, belonged to the staff of the Corporation and indicated that they would get down on the way, the matter ended at that, and they continued sitting. It is alleged that, after the bus had proceeded only a few hundred yards, Miran had asked Azam Shah to hand over the steering to him. Asam Shah declined, whereupon Shaukat Hayat took out a pistol and aimed at him, and his two companions brandished knives. As Azam Shah was still unyielding, Shaukat Hayat is alleged to have fired a shot, and Miran took control of the steering. The bus was driven with considerable speed till it reached a jungle near the cattle colony, which was four/five miles beyond the bank branch. It is said that, when the bus was eventually stopped there, the appellants with the knives had asked Karim Ali, the cashier, to hand over the keys of the suit‑case and the wooden shelf in which the money had been kept. As Karim Ali was not agreeable, he was given knife blows, and thrown out of the bus. Azam Shati, Muhammad Hayat and Basvir‑ur‑Rehman also, thinking discretion toy be the better part of valour, jumped out of the bus. Bashir‑ur‑Rehman, in the process, sustained a cut in the elbow from the glass panes of the window. The bus was then sped away by the appellants. As Karim Ali was bleeding from the injuries on his abdomen. Hayat is stated to have wrapped a 'Chador' round about the wounds. After a H bile, they stopped a donkey‑cart, which happened to pass by, and had taken it to the Police Chowki at the cattle colony, where Bashiz‑ur‑Rehman lodged the Report, at about 1‑15 p.m. Muhammad Anwar, incharge of the Police Outpost. looking to the serious conditions of Karim Ali, referred him to the hospital, and recorded the First Information Report, copy whereof was sent to the Qusidabad Police Station for being incorporated in the book maintained under section 154 of the Criminal Procedure Code. Later, Muhammad Anwar had proceeded to the ' Wardat', accompanied by Muhammad Hayat, and prepared the 'Mashirnama thereof. Later, enquiries were made from Misri, Muhammad Ismail and Yaqoob. No enquiries were made from Karim Ali, as he was not in a fit condition. On the receipt of the copy of the Report Safdar Ali Khan, the Station House Officer of Qaaidabad Police Station, had immediately rushed to the 'Wardat' while S. I. P. Muhammad Anwar was still there, and verified the ,investigation carried on till that time. At about 5‑00 p.m.. the S. I. P. found the bus parked on the National Highway, near the 'Murghikhana'. A wooden shelf was lying near the driver's seat, containing coins, amounting to Rs. 1,156.40. I here was also a suit‑case in a torn condition. However, two pay‑in‑slips were found inside. There was a 'Mashirnama' prepared 7n that context. Later, enquiries were made from Muhammad Hayat and Azam Shah. Enquiries were also made from Karim Ali at the Hospital on 18‑4‑1975. As the culprits had not been apprehended, S. I. P. Kalbe Baqir was detailed on duty. He had gone to Hydeyabad in their search on 17‑4‑1975. On 18‑4‑1973, while he was returning to Karachi via Super Highway, he learnt about the presence of the appellant, Muhammad Amir alias Mushki at Sohrab Hotel, which is situated near a workshop at a distance of 57 miles from Karachi. S. 1. P. Kolbe Baqir, arrested Muhammad Amir .and searched his person in the presence of the Mashirs. He found a scarf tied round the waist of Muhammad Amir. On examination, the scarf was found to contain currency notes worth Rs. 4,050 kept in five bundles. He prepared a 'Mashirnama'. Muhammad Amir was brought to Karachi, and was banded over to Safdar Ali Khan, who was the Investigation Officer.. S. I, P. Kalbe Baqir continued his search for the other culprits at Karachi and in Campbellpur District for a number of days, but with no results. However, on 21‑4‑1975, he received information that the appellant, Shauhat Hayat, and one other culprit, who were planning to leave Karachi, would be present at the Karimabad bus stop in the evening. S. I. P. Kalbe Baqir had reached there by 7‑30 p.m., when Shaukat Hayat, and the appellant, Abdur Razzaq, came to be arrested. The search of Shaukat Hayat yielded currency notes worth Rs. 2,640 while an amount of Rs. 2,185 was recovered from Abdur Razzaq. A 'Mashirnama' Bias prepared for the same. The said appellants, after their arrest, were passed on to the custody of Safdar Ali Khan, along with the amounts recovered from them. On 28‑4‑1975, the appellants, Amir Muhammad and Abdur Razzaq, were produced in the Court of Mr. Mahboob Ali, a Magistrate at Karachi, who arranged their identification test through Bashir‑ur‑Rehman, Azam Shah and Muhammad Hayat. The charge‑sheet against the three appellants was submitted on 30th of April 975. The appellant, Miran, came to be arrested. later on, but before the trial had started.

3. Muhammad Amir in his statement at the trial denied the various allegations made against him, including the recovery of the money from his person, as alleged. by the prosecution. He maintained that he had been arrested from the Airport Taxi Stand on 15‑4‑1975. There was only au amount of Rs. 35 on his person. which had been taken away by the police authorities, who had spent this money then and there. He further stated that he had been produced before the Magistrate in handcuff's, anti had already been shown to the witnesses by the police. He went on to say that S. I, P. Kalbe Baqir had taken a loan of Rs. 1,000 from him, and, when he had demanded its return, he was roped in this cage. He examined D. W. Ghafoor Ahmad Rana in defence.

4. Shaukat Hayat also denied the allegations and stated that he had been arrested from his house within the jurisdiction of Police Station, Taman, District Campbellpur, and the amount of .Rs. 2,640 had been secured by the police. However this amount was given to him by his uncle Malik Ghulam Jilani. Inter alia, he had the following to say

"I was employed in the S. R. T. C. as Inspector. In my such capacity I used to give time for departure and also note the time of their arrival. My duty was to also report against the drivers and con ductors if they were not regular in their keep in time. I was a Joint Secretary of the Union of the Workers In the S. R. T. C. and therefore the manager including the drivers and conductors were against me. I had reported many times against the driver and conductor of this Bus who are witnesses. On 8th April 1975 1 bad fallen ill and had applied for leave and on 10th I left for Islamabad where my uncle resides. I was not here during the time the incident took place."

Malik Ghulam Jilani. Abdur Razzaq and P. C. Ahmad Khan came to be examined as defence witnesses for him and also the appellant, Abdur Razzaq.

5. The appellant, Abdur Razzaq, stated that he had been arrested on 18.4‑'975 from District Campbellpur, and the amount secured from him belonged to him, which he was going to deposit with the Tehsildar in connection with a suit far pre‑emption. In regard to the identification test, the grievances ventilated by him were the same as that by Muhammad Amir. He further maintained that he was present at the time of the arrest of Shaukat Hayat, and, as hey teal protested about the arrest of Shaukat Hayat, who was his nephew, he also had been involved in the case.

6 Miran asserted that he had been framed in the case because of a quarrel with the foreman of the S. R. T. C. Workshop. No witness was examined in defence by him.

7. The party that left on the bus for the Bank with the cash, namely,

Karim Ali, Muhammad Flsyat. Azam Shah and Bashir‑ur‑Rehman, have all beer examined by the prosecution. Their version of thr, happenings, in the main, remains consistent. There are some discrepancies, as to whether, after the. appellants had entered the bus outside the compound, they were allowed to continue on siting in silent protest, or, there was an express permission ; also as to the doors of their entry and the place where they sat ; whether the pistol was fired, or, not tired, when Miran took over the steering ; whether Bashir‑ur‑Rehman came on the donkey‑;,art with Karim Ali, or, had left earlier, and a few more, but the main fabric of their testimony remains unshaken. The First Information Report had been lodged without any delay at all There is also the evidence of Yaqoob Masita, who had taken Karim Ali along with two other persons from t;e 'tVardat' to the Police Outpost. tie has testified that he had seen all these persons one of them lying on the ground, with a piece of cloth tied round the wounds. He was examined by the police shortly on his arrival at the Chowki. He is a rank outsider, and nothing worthwhile could be hats fro:a him in cross examination. Karim Ali had been rushed to the .Hospital, and had been examined by Dr. Ilahi Bakhsh. Casualty Medical Officer of Jinnah Post Graduate Medical Central Hospital He had found an incised wound 1' x J' viscera deep on the left chest and the inter costal space, and another incised wound 1' X J' skin deep on the left inner aspect. The injury No. 1 wag grievous in nature, and the patient had beers confined in the Hospital for fourteen days. Bashir‑ur‑Rehman had also a cut at the elbow and an abrasion. as depneed to lay Dr. Ilahi Bukhah. There is also the evidence of the bus being found in a jungle a few miles beyond the Wardat' later in the evening, and that has been deposed to by S. I. P. Safdar ,Ai Khan and the Mashir. The disappearance of the amount in question can tile way to the Bank has not been seriously, challenged, and rise su:gestioe made to Azam Shah, the driver, in the cross‑exa‑nination was, that it was he acid the other employees of the Corp::ration examined at the trial, who had actually misappropriated the same. All the four witnesses kne..v the appellants rvliran and Shaukat Hayat, as admittedly they had been from the staff of the Corporation. However, the other two appellants were unknown to all these witnesses. There was an identification test, but Karirn Ali admittedly was never called to pick up the said appellants in the parade. The parade was held on 28‑4‑197, Though Amir Ahmed alias Mushki had been arrested on 11‑4‑1975, a.d the appellant, Abdur Razzaq, had been arrested on 21‑4‑1975. There is no explanation for the delay involved. There were some other criticisms involved in regard to the parade, ors the ground that the note tExh. 17‑A) showed that there were four dummies only, mixed up with the two appellants, namely, Amir Ahmed and Abdur Razzaq. However. Mr. Mabboob, the Magistrate concern d, had stated that he had mixed twelve dummies with the two appellants, and he had not been cross examined on that point at all. It is true that the Magi;trate had bean careless, but there appears to be no reason to disbelieve him in regqrd to the number. Any way, the evidence of identification has got to h ruled out o

consideration, as it was dope by the trial Court, on the ground of dPl :.y.

8. But then there is the evidence of the recovery of certain notes from the appellants Amir Ahmed alias Mushki, Shaukat Haya and Abdur Razzaq. Amir Ahmed had been arrested from Sohrab Hotel, and the m,iney was recovered in the presence of the Mashirs, out of whom Achar has been examined. The latter has deposed that Amir Ahmed was having a scarf round his waist, which was found to contain notes. He has stated that these currency notes already bore some signatures, and the same had

not been signed by the Sub‑Inspector, or, by them. This is also the version furnished by S. I. P. Kalbe Baqir, who has stated that he had raided the hotel on spy information. He has also stated that the notes were alreaiy signed. There is also the evidence of Karam Ali, that the various wads of the notes used to be signed by him as of routine "on both the sides of the batch". However, Amir Ahmed had examined Dr. Ghafoor Ahmed Rana in his defence. He professes to be a qualified Hakeem and Ayurvadic practitioner, but, to begin with, he gave his name as Dr. Ghafoor Ahmed Rana. He has stated that his maternal uncle and some family members had come to stay with him at Karachi. The appellant, who was a Taxi Driver, lived in his own Mohalla, and he had engaged his Taxi from 11th of April 1975 at the rate of Rs. 50 per day. On the 15th of April 1975, while he and his family members were sitting in tha car, the appellant came to be arrested. He had enquired from the Sub‑Inspector concerned as to the cause of arrest, and had quietly thereafter engaged another Taxi and returned home, while the appellant was taken away by the Sub‑Inspector. On his own showing, he had never engaged a Taxi on daily basis before. Incidentally, this witness had not chosen to talk anyibing about the amount of Rs. 35, which the appellant states to have been secured from his poss:ssion, and with which the police party had recalled itself. Demonstrably, he is a speak‑easy, witness. and has just tried to oblige the appellant. who is living at a distance of only half a furlong away from him. There is no reason to doubt the testimony of Achar and S. I. P. Kalb‑. Baqir in regard to the apprehension of the appellant, as deposed by them and also the recovery of the amount of Rs. 4,050 from his person at the time of his arrest.

9. Then, there is the: evidence about the recoveries of certain :amounts from the persons of the appellants, Shaukat Hayat and ADdur Razzaq, who are related to each other. In that connection, we have the evidence of Sultan Mahmood and S. I. P. Kalbe Baqir. Kalbe Baqir has stated that he had tried to search the appellants at different places, anti had also gone to District Campbellpur. However, there was no trace of them. It was on the 21 gt of April 1975 that he received the information that the appellant, Shaukat Hayat, and one other person would be available at the Karimabid Bus Stop, and that they were planning to leave Karachi. He had gone there at about 7‑30 p.m. and apprehended Shaukat Hayat and Abdur Razasq on the pointation of the spy. Then, he mentions the search and the r; coveries of the amounts referred to earlier. He has stated that these notes ha l signatures on them. Sultan Mahmcod supports him in regard to the apprehension and the recovery of the notes. He is working as a salesman in a firm. He also speaks about the exktence of the signatures on the wads secured. However, before going any further, it will be in vie fitness of things to look to the defence witnesses examined by these .appellants.

10. There are three defence witnesses. Ahmed Khan is a Police Constable, who had produced three entries from the Rozaramcha' of Police

Station, Taman in the District ‑of Campbelipur, dated 18th. 19th and 20th April 1975. The first entry is allegedly in the hand of S. I. Y. Kalbe

Baqir, informing the local police authorities about the purpose of his visit,

but the names of the culprits proposed to be arrested have not been mentioned

rat all therein. This will, therefore, not go far. The second entry in the

hand of a Head Constable of Taman Police Station mentions the arrest of

Khaki Jan, son of Muhammad Yousaf, and Muhammad Razzaq son of Sher

Muhammad from their homes. and their presence at the Police Station with S. I. P. Kalbe Baqtr, alongwith the cash recovered from the said appellants.

It also mentions that they bad gone to Rawalpindi Airport, and had been seen off by Constable Khan Muhammad. It further mentions that the said Sub‑Inspector bad also taken a handcuff, bearing No. 454, to Karachi. and promised to return the same within a week. The third entry is regarding the receipt of the handcuff on 29‑4‑1975 from Constable Sher Ali of Quaidabad Police Station, Karachi.

11. The first thing to note is that the register brought (it was allowed to be taken back, after true copies had been kept on the record) was not properly paged at all, and contained just separate sheets. It. was, therefore not a properly maintained register. Further, the witness does not prove the signatures, or, the handwriting of the writers thereof. What is more, no question in regard to these entries was put to Kalbe Badir at all. The existence of these entries must have been known to the said appellants, and Kalbe Baqir should have been specifically asked about the same. It was not difficult to have him recalled at a later stage also. What is more, there is no substantive evidence on the record, that Shaukat Hayat bore the alias of Khaki Jan. He was an employee of the S. R. T. e. and known to the four main prosecution witnesses, but there was no suggestion made to them at all. Nor was it put to S. I. P. Kalbe Baqir, or, the Masbir. Shaukas Hayat does not say, that he was called by the name of Khaki Jan. Even his maternal uncle U. W. Ghulam Rabbani was reticent about it. There ale two places, where the word Khaki Jan is mentioned. 'Mashirnama Exh. 12/B, which pertains to the arrest, mentions Shaukat Hayat allay Khaki Jan'. It is a trite proposition of law, that the contents of a 'Mashirnama'i do not constitute substantive evidence. The other mention of this name is, on the ticket coupon and the passengers' list dated 19‑4‑1975 produced by D. W. 2 Abdul Razzaq, Accounts Supervisor of P. I. A. He had no personal knowledge of his own. But those mention only Khaki Jan without the proper name of Shaukat Hayat. The list shows Khaki Jan's seat next to Kalbe Baqir.. But that will hardly clinch the matter.

12. Then, there is the evidence of D. W. 1. Malik Ghulam Jilani, living at Rawalpindi, who is the uncle of Shaukat Hayat. He has deposed that the appellant, who appeared to be ill, had stayed with him from the 10th to the 17th of April 1975. On the 18th, he learnt that the police authorities were enquiring about him. When he reached Taman Police Station, near about tie mid‑night, he found Shaukat Hayat and Abdur Razzaq under arrest. He was not allowed to talk with the appellants, but learnt that Shaukat Hayat had been arrested, as he calls, in connection with a dacoity case, at Karachi. He also added that, on the 17th of April 1975, he bad given a sum of Rs. 2,500 to Shaukat Hayat for the purchase of wheat. He tried to explain about it, but neither he was heard, nor his statement was recorded. He professes to be a prominent political leader of the Pakistan People's Party at Rawalpindi. with shares in a hotel and a factory, but he had chosen to give the money to his nephew, because the grain in the village in Campbellpur could be had cheaper, than at Rawalpindi. Any way, he got about the freight charges, he. has left us to guess about the difference in the prices. He is not a witness of truth. Shaukat Hayat has himself stated that, on 8‑4‑1975, he bad fallen ill, and had applied for leave on 1014‑1975. He does not say that he travelled by plane. So the question arises, as to whether be could be at Rawalpindi, on that date He has produced so many witnesses, and summoned. record. He did not care to support his statement, by sending for the relevant record In regard to his leave applied for, granted or otherwise. He was at Karachi on the 14th, as stated by Azam Shah and his colleagues, and, as the matters stand, it cannot be said for certain that he was arrested in Campellpur District an the 19th.

13. As for Abdul Razzaq, in Exh. 27‑B, which is the entry in the Roznamcha', there is the mention of Muhammad Razaaq son of Sher Muhammad, while In the letter of S. I. P. Safdar Ali, to the Magistrate. in connection with the holding of the identification parade, it is Abdul Razaaq eon of Sher Khan. In the face of this, the existence of the name of Abdul Razzaq in the ticket coupon produced by D. W. 2 Abdur Razzaq, along with the name of Kalbe Baqir, as to be found from the list, would be neither here nor there, when in the list of 100 passengers, there was another passenger as well, with the name of Muhammad Razzaq. S. I. P. Kalbe Baqir has stated that he bad travelled to Rawalpindi by plane and returned by plane, but denied that the said appellants had been arrested. from their homes. He admitted that the said appellants had been detained in the lock‑up of Airport Police Station, but explained that there was no lock‑up at the Quaidabad Police Station. This could be checked up from Safdar Ali Khan, but was Lot attempted. The fact, that Shaukat Hayat and Abdur Razzaq bad been arrested in Campbellpur District, or, travelled along with him by the plane on the 19th of April, is not established at all, nor any reliance can be placed on the evidence of Malik Ghulam Jilani. Therefore, there appears to lye no reason to disbelieve him, or, the Mashir, as was done by the trial Court in regard to the venue and the time of their arrest. I might as well add that the learned trial Judge had believed the recoveries from them all right after arrest, but from Campbellpur. As there is no doubt left on that score, the rule laid down in the case of Safdar Ali v. The Crown (P L D 1953 F C 93) would not be attracted.

14. There are no recoveries from Miran, but, as will be seen, he was too sell known to the witnesses, being an employee of the Corporation. It will be evident that he was absent from duty for quite long, from the day of the incident. He does not say that he was on leave, or, removed from. service.

15. I am, therefore, of the opinion that the case against the appellants' has beer" established beyond reasonable doubt. The conviction and sentence, of Shaukat Hayat, Muhammad Amir and Abdur Razzaq for an offence under section 394 read with section 397, P. P. C. is, therefore, not open to exception. Their sentences are the minimum under the law and are armed However, it is nobody's case that Miran was armed, or, had used any deadly weapon, or, for the matter of that, caused any grievous injury. Section 397, which is merely a rider to sections 392 arid 395, P. P. C., regulating the punishment already provided, for robbery and dacoity by fixing the minimum term of imprisonment, will, therefore, not be attracted. As held in Qalandar Bakhsh and others v. The State (P L D 1964 Kar. 269), only those persona can be brought within the orbit of section 397, P. P. C., who are armed with deadly weapons, or, cause grievous hurt to any person, or, attempt to cause death, or grievous hurt. The principle of vicarious liability does not arise. I will, therefore, alter the conviction of Miran from an offence under section 394 read with section 397 to an offence under section 394, P. P. C. for being jointly concerned in the commission of the crime. However, looking to the circumstances of the case, I find no occasion to reduce the sentence of seven years' R. I. awarded to him. With this modification, the appeal stands dismissed.

S. Q. Appeal dismissed.

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