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Criminal Appeal No. 9T‑K of 1986, decided on 19th January, 1987.

‑‑‑S. 20‑‑Penal Code (XLV of 1860), S. 395‑‑Dacoity Identification parade‑‑Perception of witness‑‑Prosecution witness deposing that one accused armed with revolver kept standing near him and the other armed with step‑gun was standing in front of him thus he was In a position to identify accused; that accused had kept pistol at his temple inside his office at time of incident and had searched cabinet and almirah of the side of his chair and had made him hands up and had held him with both of his hands and started scuffle with him he had thus sufficient time to watch accused when had entered inside his chamber and that identification parade was held after ten days thus incident was fresh in his mind‑‑Held, this being the first incident of his life it must have created unforgettable impression in the mind of witness‑‑Sense of perception of witness, therefore, could not be challenged in circumstance. ‑‑‑[Identification parade].

‑‑‑S. 20‑‑Penal Code (XLV of 1860), S. 395‑‑Dacoity‑‑Identification‑ Independent and natural witnesses not under influence of police‑‑Such witnesses when examined after few years forgetting some features of used‑‑Slip on the part of such witness being understandable, evidence of such witnesses, could not be disbelieved in circumstances.‑ [Witness].

‑‑‑S. 20‑‑Penal Code (XLV of 1880), S. 395‑‑Dacoity‑‑Identification‑ Appreeiation of evidence‑‑Trial Court took pains to appraise evidence on record and had considered law cited dispassionately‑‑Distinguishing features of case in hand was demonstrated In judgment of Trial Court and inaptness of authorities cited for defence in peculiar circumstances were amply pointed out‑‑No justification, held, was present to interfere with order of Trial Court in circumstances.

‑‑‑Everything said in the judgment in a criminal case must be understood with great particularity as having been said with reference to facts of that particular case‑‑Judgments of superior Courts proceed on peculiar facts of each case, great care and caution is needed in invocation of such authorities.

The State v. Mushtaq P L D 1973418 ref.

---S. 20‑‑Penal Code (XLV of 1860), S. 395‑‑Dacoity‑‑Sentence Serious view of the offence of dacoity is called for In order to restore peace and tranquillity In the society and the life and liberty of citizens‑ Accused, 'being a young person, and in order to give him a chance in life to mend himself, Federal Shariat Court, took a lenient view and reduced sentence of accused.‑‑[Sentence].

A.Q. Halepota for Appellant.

Muhammad Ayub Khanzada for the State.

Dates of hearing: 17th and 18th December, 1986.

.‑‑This appeal is directed against the judgment/order, dated 31‑7‑1986 passed by Mr. Muhammad Mujibullah Siddiqui, Vth Additional Sessions Judge Hyderabad whereby appellant Qadir Bakhsh son of Noor Muhammad Khoso has been found guilty of offence punishable under section 20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 395, P.P,C, and sentenced to suffer life imprisonment and to pay a fine of Rs.10,000 (Ten thousand) or in default to suffer further R.I. for one year. The allegations against the appellant are that on 10‑12‑1983 at 10‑30 a.m. he has entered the Latifabad Branch of National Bank of Pakistan alongwith his five other companions duly armed and took away Rs. 31, 619.50.

2. Muhammad Saleem, the Manager of Unit No. 8 of National Bank Pakistan at Latifabad formally lodged a report on 10‑12‑1983 at 12‑30 p.m. (noon) at Latifabad Police Station and stated that he was working in the National Bank of Pakistan, Unit No. 8, Latifabad and alongwith officers (named in the F.I.R.) and Ashrafuddin and Barkat Ali the Chowkidars who had been provided with guns and cartridges. He was sitting in his Bank Office since 0900 hours. Khalil Ahmed and Mushtaq Ali were working at the Cash Counter, Chowkidar Barkat Ali was performing his duties outside the Bank on the gate and Ashrafuddin inside the Bank near the gate when at about 10‑30 hours suddenly six termed persons entered the Bank from the West side door. Out of those three persons immediately caught hold of Chowkidar Barkat Ali anti snatched the gun and cartridges from him and pushed him and brought him inside the Bank and the remaining three persons caught hold of Chowkidar Ashrafuddin and also snatched from him gun and cartridge and made both of them to stand on one side. Chowkidar Barkat Ali resisted, one of the persons fired a shot at him but it did not hit anti instead hit the wall and thereafter two persons entered his office. One of them was having a sten‑gun and the other was holding a revolver. They immediately threw away the telephone apparatus on the ground and asked for the cash but he replied that the cash was not in the office but was with the Cashier. Whereupon one person stood over ors him (complainant) and the other went out towards the cash counter. After a while a fire shot was heard from the cash counter. Then all of those six persons went outside the Bank and made good their escape and drove away in a white Toyota Corola Car of 1983 Model towards board of Education. The car had no registration number. The culprits took away the guns and cartridges of the Chowkidars. (The details furnished in the F. I. R.) . The Cashiers had told him that the culprits had taken away cash alongwith the drawer. Latifabad Police Station had been informed on telephone about the incident and the police officer cached the spot. On verification it was found that a sum of Rs.31,619.50 was taken away by the culprits who were not known to him previously but he will identify them if they are shown to him. The culprits appeared to be young boys.

3. Inspector Malik Muhammad Hussain S.H.O. Latifabad recorded F.I.R. and visited the place of incident and prepared the site plan and recorded the statements of the witnesses. The Superintendent of lice and other police officers also reached the place of incident. A police team consisting of police Inspectors Malik Muhammad Hussain, Khaliq Sherwani and Chand Khan was formed to trace tyre culprits. On 20‑12‑1983 accused Qadir Bakhsh and Din Muhammad were arrested from Giddu and on the personal search a revolver was secured from Qadir Bakhsh and a bag and sten‑gun from the accused Din Muhammad. The accused persons were brought to the police station and the next day (21‑12‑1983) they were put to identification test under the Supervision of a Magistrate (Mr. Abdul Rahim Memon) through Muhammad Saleem, Barkat Ali, Ashrafuddin and Shahid Ali. The challan was put up on 27‑12‑1983 in Court. Accused Din Muhammad absconded from the police custody. Only Qadir Bakhsh faced the trial.

4. Nine witnesses were examined on behalf of the prosecution. They are P.W. 1 (Muhammad Saleem, the complainant), P.W. 2 (Barkat Ali Chowkidar) P.W. 3 (Ashrafuddin) P.W. 4 (Shahid Ali Cashier) P.W. 5 (Abdul Rahim Memon, the Magistrate) P.W. 6 (Maqsood Ali) P.W. 7 (Syed Itaat Ali) P.W. 8 (Raze Ahmed) and P.W. 9 (Inspector Malik Muhammad Hussain, the Investigating Officer). Muhammad Saleem described the incident as was narrated in F.I.R. Barkat Ali and Ashrafuddin, the Chowkidar corroborated the version and Shahid Ali the Cashier stated in detail what had happened in the Bank when the culprits had forced their entry in the Bank. Mr. Abdul Rahim Memon, the Magistrate, testified the fact that the accused was correctly identified by the Bank employees. Syed Itaat Ali deposed that before him the police had visited the place of occurrence and was shown the wall which was hit by the decoits and the empty cartridge was found at the entrance. Some pellets from the cash counter were secured by the police and the Mashirnama prepared at the place (Jay wardat) was attested by him. Raza Muhammad admitted his signature on the Mashirnama of arrest of accused but did not confirm the contents thereof.

5. The accused when examined under section 342, Cr. P.C. denied the allegations put to him and to the question "why P.Ws have deposed against you" answered that "I do not know again says that at the instance of police. He did not like to produce any defence but appeared as his own witness under section 340(2), Cr.P.C. and stated that he was working as a cleaner on the truck of his brother Khair Muhammad. Absconding accused Din Muhammad is his cousin and was a student of Mehran University and was working as Telephone Operator in Telephone Exchange Jam Shoro. He went to him at about 9‑00 or 9‑30 a.m. (date not mentioned) and he had to deliver some cash to him. He was standing outside the Telephone Exchange building after sending message to Din Muhammad and in the meantime some persons came there and enquired about his antecedents and then asked him to sit in a vehicle. They brought Din Muhammad and another also and took all the three of them to Latifabad Police Station where third person was released and he alongwith Din Muhammad was put in lock‑up. Police demanded bribe from them which they could not pay. Police went to their villages for knocking out money from their elders but could not get anything from there also and, therefore, they were challaned in this case.

6. The trial Court after assessing the evidence on record found the accused /appellant guilty and has sentenced him as mentioned above.

7. Mr. A.Q. Halepota, Advocate, the learned counsel for the appellant has taken us to the entire evidence on record and has contended that there is no recovery from the accused /appellant and only the identification is the basis of conviction and elaborating his submission stressed on the point that the entire incident was completed in few minutes. Six persons were involved and it was difficult to memorize the features of the culprits. No description of the features of the accused were given in the F.I.R. except that they were young boys. So it was a case of bona fide mistaken identity and on this ground the conviction cannot be safely recorded as the manner in which the identification parade was held casts doubt and pointed out that P.W. 2 (Barkat Ali) and P.W. 4 (Shahid Ali) did not identify the accused /appellant in Court while P.W. 3 (Ashrafuddin) has stated that the culprits and dummies were standing in a circle and the two culprits were hand cuffed at the time of identification test. The learned counsel was of the view that due precautions had not been taken to ensure the correct identification and thus the judicial conscience does not stand satisfied as only the bank employees of the Branch were associated with the parade. The conduct of the Investigating Officer has not been above board and the Mashirnama does not give the names of the Dummies. The learned counsel complained that the trial Court has not properly appreciated the submissions made on behalf of the accused and has not correctly interpreted the case law cited before him and relied once again the same authorities. The cases cited are Lal Pasand v. The State P L D 1981 S C 142 and Hafeezullah v. The State 1969 P Cr. L J 655.

8. We have given due consideration to the arguments of the learned counsel for the appellant and have not been able to persuade our-self to concur with him. P.W. Muhammad Saleem has deposed that the culprit armed with revolver kept standing near him and the one armed with sten‑gun was standing in front of him. Thus, he was in a position to identify the appellant (Qadir Bakhsh). Since he had kept pistol at his temple inside his office, at the time of incident. This witness has further stated that the accused/appellant had searched the cabinet and the almirah of the side of his revolving chair and had made him hands up and had held him with both of his hands and started scuffle with him. He had thus sufficient time to watch the accused Qadir Bakhsh when had entered inside his chambers. The identification parade was held after ten days but the very next day the accused was apprehended. The incident was thus fresh in his mind. This being the first incident of his life must have created unforgetable impression in his mind. The, sense of perception of the witnesses cannot be challenged. Similarly prosecution witnesses (P.W. 2 and P.W. 3) had identified the accused when the incident was also fresh in their minds. Later when they were examined on 22‑10‑1985 they might have forgotten some features of the accused. This slip on their part is understandable and appears natural. There is thus, no reason to doubt their veracity. The false implication is ruled out. They are independent and natural witnesses and cannot be deemed to be under the influence of the police. We have thus not reason to take a contrary view of the evidence as has been taken by trial Court. The learned Additional Sessions Judge has taken pains to appraise the evidence on record and has considered the law cited before him dispassionately and we find no justification to differ with him. The distinguishing features of the instant case have been demonstrated in the judgment and the inaptness of the authorities cited by the learned counsel for the defence in the peculiar circumstances of this case has been amply pointed out. The authorities of the superior Courts proceed on peculiar facts of each case and great care and caution is needed in invocation of such authorities and as pointed out by the Supreme Court in State v. Mushtaq P L D 1973418 everything said in the judgment in a criminal case must be understood with great particularity as having been said with reference to the facts of that particular case.

We are of the considered view that the order of conviction is not assailable in law and on facts. We also agree with the learned trial Court that looking to the circumstances prevailing all over the country in which the dacoity and robbery is becoming the order of the day, a serious view of the offence is called for in order to restore peace and tranquillity in the society and the life and liberty of the citizen is not to be left at the mercy of the criminals but considering the youth oil the appellant and in order to give him a chance in life to mend himself take a lenient view and reduce substantive sentence to ten years. The fine and the sentence in default thereof is maintained. With this modification in the sentence the conviction is maintained and the appeal is disposed of.

M. B. A. /308/F Order accordingly.

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