Criminal Appeal No.56/2017 (Convictions of bank robbers quashed)

An appeal was filed to the High Court Islamabad, whereby which the appellants, who were awarded two concurrent sentences (pursuant to Sec.17 Harabah Offences against Property (Enforcement of Hudood) Ordinance, 1979) of seven and three years of hard labor, challenged their convictions.

Facts of the case are as follows: the bank manager lodged an F.I.R. for a robbery at Bank Alfalah, Sabzi Mandi Branch, Islamabad in which three armed gunmen robbed the bank of Rs.3,820,000/- and fled on a Suzuki Mehran and a motorcycle parked outside the bank. Following an investigation the appellants were arrested and convicted by a trial court, against which they filed the current appeal.

The appellants contended that their conviction was not sustainable as the charge against them had not been framed and  there was no witness who had identified them or deposed against them and their conviction had been based on inadmissible evidence (statements recorded by the police).

The State Counsel opposed this appeal by stating that the prosecution had successfully proven the case against the appellants in conjunction with the Rs.400,000/- recovered from them, which served as additional evidence.

Pursuant to the F.I.R. filed by the bank manager, evidence was taken into custody by the police. This included CCTV footage, a 12 bore repeater gun, an iron rod, two cloth bags and cycle lock along with the finger prints from the crime scene, the statements of witnesses and a vehicle which had also been involved in another criminal investigation. Following this, one of the appellants, Waseem Haroon, already under arrest was rearrested upon which he disclosed the identity of the remainder of the individuals involved in the bank robbery and the location of Rs.350,000/-. These individuals when arrested were identified by witnesses in an identification parade in the presence of a magistrate. 11 witnesses were produced by the prosecution during the trial and the case was transferred to the court of Ms.Rakshanda Shaheen who after hearing the defence deleted the charge pursuant to Sec.17 of Offences against Property (Enforcement of Hudood) Ordinance, 1979 and sent the case back to the relevant magistrate.

The judge presiding over this appeal stated that he had perused the entirety of the case record and was unable to find an order through which a specific charge under section 395/412 of the Pakistan Penal Code had been framed. The record as it stood in front of the judge contained only a charge of Sec.17 of Offences against Property (Enforcement of Hudood) Ordinance, 1979 against the appellants of Waseem Haroon and Raza Khan and no charge had been framed against Attiq-ur-rehman and this as prejudicial to the accused. In addition to this the offence in terms of Sec.395/412 PPC  and specific charges for offences carried out by the accused had not been framed. The case of PLD 2017 Pesh 55 (Akhtar Muhammad vs. The State) was cited to support the settled principle of law whereby which the charge against the accused was required to be “specific, fair and clear in all respects” to allow the accused a fair chance to defend himself during the trial.

The prosecution’s primary witness, the Bank manager narrated the entire incident of the robbery to the police in his statement but was unable to identify any of the accused in the jail or in court as the robbers. While being cross examined he stated that he had not noted the registration number of the Suzuki Mehran and the motorcycle on which the robbers fled the crime scene.

Subsequent witnesses, which included the Accounts Officer of the Bank and an intern at the bank stated that they too had not been able to see the faces of the robbers as the entire incident lasted for about two minutes and a few of the robbers had covered their faces partially with handkerchiefs. The judge noted that neither of the witnesses had been able to identify the suspects as the perpetrators of the crime they witnessed and they had identified the convicts as suspects in identification parades; one of the convicts had been identified by a witness whose details were not part of the case reports; the police record for the case contained copies of the identification parade reports  instead of the original documents, which had not been attested, all of which was in violation of the Police Rules 1983, and article 73 and 75 of the Qanun-e-Shahadat, supported by1999 PCr.LJ 1955 (Alam Zaib vs. The State). This vitiated any evidentiary value that the documents presented had, rendering them inadmissible as evidence.

In addition to this the identification parade had not been conducted in accordance with the rules settled by the Supreme Court[1] as the witnesses had already seen pictures of the suspects prior to it which vitiated any evidentiary value that it held.

Following a perusal of the prosecution’s submissions the judge also noted that the witness statements carried discrepancies regarding the date on which the stolen cash had been recovered from the convicts which evidenced these to be plants by the investigation officers and therefore inadmissible in a court of law.

The judge stated that the case reflected inappropriate behavior by the entirety of the legal system’s faculties involved, including the trial court. The prosecution was held to have failed miserably to prove anything against the convicts and the entire case was therefore sent to the trial court for a Trial de novo.

[1] 2011 SCMR 769 (Muhammad Ayaz and others vs. The State), 1985 SCMR 721 (Khadim Hussain vs. The State), 1988 SCMR 557 (Ghulam Rasul and 3 Others vs. The State) and 2001 SCMR 424 (Imran Ashraf and 7 others vs. The State)