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Criminal Appeal No. 418 of 1986, decided on 18th April, 1987.

---S. 340(2)--Penal Code (XLV of 1860), Ss. 382 &392--Omission to record statement of accused under S. 340(2), Cr.P.C.--Whether an illegality One of accused wishing to give evidence on oath in his defence while others refusing to do so--Accused closing his case after producing defence evidence--Statement on oath of said accused, neither recorded nor any statement recorded to show his refusal to appear--Omission of Trial Court, held, would amount to illegality--Convictions and sentences of all accused, set aside and case remanded for retrial from stage of examining accused under S. 340(2), Cr.P.C. with desirability of examining other accused also under S. 340(2), Cr.P.C.

Rizwan's case P L D 1986 Lah. 222 ref.

A. Waheed Babar for Appellant.

Muhammad Arshad Khan for the State:.

Date of hearing: 15th April, 1987.

Nisar Ahmad, Gulzar Ahmad, Mubarik Ali and Mushtaq Ahmad were tried by a Section 30 Magistrate of Sheikhupura under section 382/392, P.P.C. for robbery and theft, after preparation made for causing death, hurt or restraint in order to the committing of the same. The trial Magistrate, by his judgment, dated 2-7-1986, convicted all the four accused under section 392, P.P.C. and sentenced them to undergo six years' rigorous imprisonment each and to pay a fine of Rs.10,000 each or in default thereof to undergo rigorous imprisonment for three years each. The benefit of section 382-B, Cr.P.C. was also allowed to the accused. The currency notes P.4/1-298 amounting to Rs.19,900 recovered from Mubarik Ali, accused and articles P.1 to P.9, P.16, P.21 and P.22 recovered from the various accused were ordered to be returned to the-complainant party. The remaining articles recovered at the instance of the accused were ordered to stand confiscated to the State. Three appeals (Cr. A. 418 of 1986, Cr. A. 481 of 1986 and Cr. A. 520 of 1986) preferred by Nisar Ahmad, Gulzar Ahmad and Mubarik Ali convicts, respectively, against their conviction and sentences, are now before me for disposal. Mushtaq Ahmad, convict, has not filed any appeal.

2. The prosecution case in brief is that on 28-4-1985 Abdul Ghafoor, complainant P.W.1, alongwith Sh. Muhammad Asif P.W.2 and Abdul Ghani (given up P.W.), all residents of Rawalpindi, came on a business trip to Azam Cloth Market, Lahore. They collected their sale amounts of the cloth sold by them from the said market and started for Faisalabad in their Car No. 132-FDF at about 7-00 p.m. In the diggi of the car, two Samsonite brief cases, one brown and the other of black colour, and one bag made of leather, were placed by the said persons. A sum of Rs.1,25,000 belonging to Abdul Ghafoor complainant P.W.I, was lying in the brief case, apart from his hand purse; photos, visiting card and necessary papers. In the other brief case of brown colour, an amount of Rs.75,000 belonging to Muhammad Asif P.W.2 and an amount of Rs.1,25,000 belonging to Abdul Ghani (given up P.W.) was present. In the leather bag, samples of clothes, a diary belonging to Pervaiz Khalid, a son of the complainant, was lying. These cash amounts were collected by the complainant and the witnesses from the Azam Cloth Market, Lahore. At about 8-15 p.m. on 28-4-1985, when the car, which was being driven by the complainant Abdul Ghafoor P.W.1, reached 1-1/2 miles ahead of Ferozewatan on the highway towards Faisalabad, one car of dark green colour coming from behind crossed the car of the complainant and stopped in front of the complainant's car. The complainant stopped the car on the road side. From the dark green car four persons came out. Three of them were armed with pistols/revolvers and one was having another weapon. The culprits came to the complainant's car. Abdul Ghafoor, complainant P.W.1, Sh. Muhammad Asif P.W.2 and Abdul Ghani (given up P.W.) saw these culprits in the light of their own car, as the head lights of the complainant's car were on. One of the culprits fired at the tyre of the complainant's car and the other accused started firing in the air. At gun point, these four persons forcibly took the key of the car and opened the diggi and removed the brief cases abovementioned and the leather bag. In these bags, amounts as mentioned above, were also lying. After that, all the four persons fled away in the dark green car, alongwith the keys of the car of the complainant.

3. After a short while Asmat Ullah S.I. P.W.6, who happened to be on patrol duty; happened to pass by. When he came upon them, the complainant told them what had transpired. Abdul Ghafoor, complainant P.W.1, delivered to the said police officer application EXh.P.A. at about 9 00 P.m. narrating the whole occurrence. The Police Officer took into possession one crime empty P.3 and the complainant's Honda Car No. FDF-132 vide memo. Exh.PS. On the basis of the application produced by the complainant, formal F.I.R. Exh.PA./2 was recorded at Police Station Saddar Sheikhupura at 9-40 p.m. by Muhammad Sarwar P.W.

4. On 9-6-1985 Nisar Ahmad, Gulzar Ahmad, Mubarik Ali and Mushtaq Ahmad, accused, and one other were arrested by Ch. Makhan Khan A.S.I. P.W.5 after their blue coloured car No. FDD-280 which they were driving, on search, was found to contain illegal fire-arms.

5. On 9-6-1985 Mubarik Ali, accused, led to the recovery of a Honda Motor-cycle P.10, currency notes P.11/1-298 covering an amount of Rs.19,900 four gold bangles P.12/1-4 and a gold ring P.13, which were taken into possession by the police vide memo. Exh.P.B. On the same day Nisar Ahmad, accused, led to the recovery of a Honda Motor-cycle P.14, a video cassette record-player and other articles, which were taken into possession by the police vide memo. Exh.P.D. Likewise, on the same day Mushtaq Ahmad, accused, led to the recovery of a pair of gold ear-rings P.16/1-2, a gold locket P.17 and a gold ring P.18, which were taken into possession by the police vide memo. Exh.P.F. All these recoveries were witnessed by Maqsood Hussain P.W.4, Ch. Makhan Khan P.W.5 and Akbar Ali A.S.I. (given up P.W.).

6. On 24-6-1985 Mubarik Ali, accused, led to the recovery from his house of a black Samsonite brief case P.1, two photographs P.2/1-2, a lady's photo P.3, an identity card of the Chamber of Commerce P.4, a spectacle cover P.5, a rexine bag P.6 and a diary bearing the name of Sheikh Brothers, Rawalpindi, P.20 and some samples of cloth, which were taken into possession by the police vide memo. Exh.P.C. The same day Nisar Ahmad, accused, led to the recovery from his house of a hand purse P.8, two visiting cards P.15/1-2 and some samples of cloth, which were taken into possession vide memo. Exh.P.E. Mushtaq Ahmad, accused, on the same day, also led to the recovery from his house of a leather bag P.6, a diary P.7, a small black purse P.22 and samples of cloth, which were taken into possession by the police vide memo. Exh.P.G. Gulzar Ahmad, accused, also led to the recovery from his house of a brown Samsonite brief case P.9 and a visiting card and some samples of cloth, which were taken into possession vide memo. Exh.P.H. All these recoveries were witnessed by Maqsood Hussain P.W.4, Ch. Makhan Khan A.S.I. P.W.5 and Akbar Ali A.S.I. P.W.5 (given up P.W.).

7. On 7-7-1985 the S.H.O., Police Station Saddar Sheikhupura, submitted an application Exh.P.D. before the Assistant Commissioner, Sheikhupura, for the identification parade of the four accused to be held. On 8-7-1985 the Assistant Commissioner, Sheikhupura, vide his endorsement Exh.P.T./ I ordered Ch. Muhammad Farooq M.I.C. P.W.7 to conduct the identification parade. The said Magistrate, vide his note Exh.P.T./II, directed the Superintendent, Jail, to make arrangements for the identification parade for 10-7-1985.

8. On 10-7-1985 identification parade was held under the supervision of Ch. Muhammad Farooq M.I.C. P.W.7. All the four accused were identified by Sh. Abdul Ghafoor complainant P.W.1 and Sh. Muhammad Asif P.W.2.

9. On 19-7-1985 Gulzar Ahmad, accused, led to the recovery of dark green colour Mark-II Car No. LEM-2810 from the taxi stand. The car with its registration book was taken into possession by the police vide memo. Exh.P.V. in the presence of Muhammad Nasim Akbar, Inspector P.W.8, and Muhammad Jamil A.S.I. and Nur Muhammad (given up P.Ws.).

10. The said four accused, including some others, were found to be involved in a number of dacoities. Various challans were filed against them, including two in the Sheikhupura District, of which the present happens to be one of them.

11. At the trial, the prosecution produced Sh. Abdul Ghafoor, complainant P.W.1, and Sh. Muhammad Asif P.W.2 in proof of the ocular account, Maqsood Hussain P.W.4, Ch. Makhan Khan, A.S.I. P.W.5 and Muhammad Nasim Inspector P.W.8, in proof of the recoveries and Sh. Abdul Ghafoor P.W.1, Sh. Muhammad Asif P.W.2 and Ch. Muhammad Farooq M.I.C. P.W.7 in support of the identification parade.

12. At the trial, all the accused denied all the accusations that were levelled against them, including the recoveries alleged to have been effected at their instance. They also stated that the police had shown them to the witnesses before the identification parade. Mubarik Ali, accused, produced Muhammad Ibrahim D.W.1 and his mother Mst. Razia Bibi D.W.2 to prove that the latter used to deposit Rs.1,000 per month with the former by way of committee and that the former had handed over Rs.20,000 to the latter in June 1985 as she required the money for her daughter's marriage and the latter had purchased four gold bangles and a gold ring out of the said amount. Mubarik Ali, accused, also produced receipt Exh.D.D. to prove the purchase of the Honda Motor-cycle and the receipt Exh.D.E. for the ornaments purchased. Nisar Ahmad, accused, produced the receipt Exh.D.F. and the insurance book Exh.D.G. of the Honda Motor-cycle purchased by him. Muhammad Ahmad, accused, produced receipts Exhs. D.H. and D.J. to prove that the gold locket, the pair of gold ear-rings and gold rings were purchased by him.

13. I have heard the arguments of the learned counsel for the appellants and the State and have perused the record: Unfortunately, this case will have to be remanded to the trial Magistrate and so I need not go into the lengthy arguments addressed by the learned counsel for the appellants on a number of issues. It appears that Mubarik Ali, appellant, whilst being examined under section 342, Cr.P.C., expressed his wish to give evidence on oath in his defence under section 340(2), Cr.P.C., whereas Nisar Ahmad in Gulzar Ahmad, appellants, refused to do so. It appears that on 21-6-1986 two witnesses appeared in defence on behalf of Mubarik Ali, appellant, whereafter Mubarik Ali, appellant, tendered certain documents and closed his case, which statement without oath was recorded by the trial Magistrate. Unfortunately the statement on oath of the said appellant under section 340(2), Cr.P.C. was not recorded, nor any further statement of the said appellant was recorded to show that he had refused to appear in his own defence on oath. The omission of the trial Magistrate to record the statement of Mubarik Ali, appellant, thus amounts to an illegality. In these circumstances, the impugned judgement of the trial Magistrate, dated 2-7-1986 is set aside and the convictions and sentences of Nisar Ahmad, Gulzar Ahmad and Musthaq Ali, appellants, and also that of Mushtaq, convict, who has not appealed, are set aside. The case shall now, be sent back to the trial Magistrate for retrial from the stage that he inadvertently failed to examine Mubarik Ali, appellant, on oath under section 340(2), Cr.P.C. on 21-6-1986, just after he had completed the recording of the evidence of the defence witnesses. In view of the decision of this Court in Rizwan's case, P L D 1986 Lah. 222, the Magistrate shall alt order the question whether it would not be desirable, in the interest of justice, to record the statements on oath of all the three appellants and the non-appearing convict as required by section 340(2), Cr.P.C.

S.A./N-31/L Case remanded.

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