1992 P Cr (PLP)

Date of hearing: 26th May, 1991. Shakeel (30) and Mahrr ad Asghar (20) were convicted under section 397/34, P.P.C. by the learned Magistrate Section 30, Lahore, who vide his Judgment dated 27‑4‑1.989 sentenced them to seven years' R.I. each and a fine of Rs.5,000 each, in default of payment of fine R.I. for one year. The convicts have filed this appeal against that judgment.

2. According to the prosecution, the brief facts leading to the appeal are that on 22‑11‑1985 at 5‑00 p.m. Muhammad Ali driver (complainant) of Car No.156 L.H.M. took family of Muhammad Akram to Race Course Park Jail Road, Lahore. Family members went to park while he parked the car outside. At about 5‑30 p.m., when he was sitting in car accused persons emerged there. They forcibly entered car, one of them caused injuries with butt of revolver at his head, and other one pressed his throat and thus removed him from driver's seat to front portion of other seat adjoining to driver's seat. One of the accused took driver's seat while other one took front seat and pushed complainant to open space in front of his seat. Accused started car and drove it to Jaranwala road. Accused also forcibly removed Rs.650 from the complainant's pocket. The complainant was thrown from car near Butchoki on road from where he managed to come to Lahore on private transport, contacted his employer and informed him regarding the present occurrence. He was taken to police station where, on his statement present case was registered. Sajjad Ali A.S.I. Police Station Jaranwala was having Nakabandi near Gogera Canal at Bridge Dhassian in area of Chak No.128/G.B. At about 10‑00 p.m. both the accused came on car and on suspicion they were signalled to stop but they tried to run away, so police stopped them and found that their clothes were blood‑stained. On their personal search they were also found having unlicensed weapons, and they could not give any satisfactory account of their blood‑stained clothes and the possession of the car. The police of Jaranwala arrested them and took car in possession under section. 550, Cr.P.C. On further interrogation it transpired that accused committed robbery and were taking car, so Race Course Police was informed. The case was investigated by Fazal Mahmood (P.W.6) and after completing the investigation, the challan was submitted in the Court.

3. The prosecution in support of its case examined eight P.Ws. Muhammad Ali (P.W.1) gave the ocular version of the incident whereas Muhammad Akram (P.W.2) identified the stolen car and took that car on Superdari during the pendency of the case. Salad A.S.I. (P.W.3) took into possession the car in question under section 550, Cr.P.C. and also arrested the appellants on the spot as they were in the car at the relevant time. Dr. Muhammad Akram Chaudhry (P.W.4) on 27‑4‑1985 took X‑Ray of Muhammad Ali P.W. and submitted his X‑Ray report Exh.P.E./1, 2,

3. Shahid Akram appeared as P.W.5 and deposed that his father Ch. Muhammad Akram P.W. took the car in question bearing L.H.M. 156 on Superdari and he witnessed the same. Nasrullah Khan Chatha A.C., Khanewal (P.W.7) deposed about the identification parade held under his supervision or. 17‑12‑

85. In that identification parade Muhammad Ali P.W.1 identified the appellants and submitted identification report which is Exh.PA. Dr. Qamar‑ud‑din appeared as P.W.8 and deposed about the injuries sustained by Muhammad Ali. The appellants' defence is bare denial and false implication. Shakeel appellant examined two witnesses in his defence. Dikson Samuel appeared as D.W.1 and deposed that the appellant bears good moral character. Similar is the evidence of Salman Paul D.W.2 who also gave good moral certificate to Shakeel appellant. Waqar H. Nisar (D.W.3) appeared in defence of Mahmood Asghar appellant and gave him the certificate of good moral character. Ghulam Muhammad (D.W.4) appeared in support of the defence of Mahmood Asghar appellant and gave him certificate of good moral character.

4. The learned counsel appearing for the appellants has contended that the version given in the F.I.R. was not adhered to by the complainant Muhammad Ali in his statement before the learned trial Court; though he was not confronted with his previous statement as required under the law, still no conviction can be recorded against the appellants on this contradictory statement of the complainant before the trial Court. He submitted that the version given in the F.I.R. is belied by the medical evidence and as well as by the conduct of Muhammad Ali. The police after the registration of the case did not get Muhammad all examined at the earliest opportunity and the opinion of the doctor is that the injuries sustained by Muhammad Ali complainant were six to eight hours old which completely demolished the prosecution case. Tile complainant gave sketchy physical features of the accused persons which are general in character and on the basis of those features it was difficult for the complainant to identify the appellants in the Court. In the absence of the deposition of Muhammad Ali complainant regarding the identification parade, the evidence of the Magistrate P.W.7 is a hearsay testimony, hence inadmissible in law, the learned trial Judge erred in law while convicting the appellants on the basis of this evidence. The deposition of Muhammad Ali complainant before the learned trial Court stood contradicted on the factum of recovery, duration of injuries sustained by him and also on the point of recovery of two pistols from the appellants at the time of their arrest by P.W.3, as according to the complainant, he received injuries at 5‑30 p.m. on 22‑11?1985 and only one appellant had pistol in his hand, when they snatched the car from him by pushing him in the space before the front seat of the car. In the end, he urged that the judgment of the learned trial Court is fallacious as he has convicted the appellants under section 397, P.P.C. whereas, at the most, the case may fall within the ambit of section 411, P.P.C. because the appellants were arrested by P.W.3 with stolen car at Jaranwala Road, as there is no direct evidence on the record to connect the appellants with the offence falling under section 3'97, P.P.C.

5. The learned counsel appearing for the State has supported the judgment of the learned trial Court.

6. I have minutely gone through the record of the case with the able assistance of the learned counsel for the parties.

7. I find no force in the submissions of the learned counsel for the appellants because the complainant (Muhammad Ali) had no animus against the appellants to falsely implicate them in this heinous crime and his statement is being corroborated due to these facts, such as recovery of the abovesaid car at Jaranwala Road by P.W.3, the arrest of the appellants at that time by P.W.3 and the injury, statement of Muhammad Ali. The plea of false implication taken by the appellants does not get support from any evidence. The appellants were arrested within few hours of the commission of the offence by P.W.3 which shows that they were not using A that car as a stolen property as the learned counsel for the appellants wants me to believe. In fact, the appellants were taking the car after dropping the complainant in the way when they were arrested by P.W.3. The appellants have failed to contradict the prosecution version which is coming from the highly independent and neutral witnesses even though defence evidence led by them is of general character and does not advance their case because all the defence witnesses have merely stated that the appellants are of a good character persons. Even the appellants have taken contradictory stand before the Court but I am mindful of this fact that mere weakness of the defence version would not prove the prosecution case by itself but if the prosecution case is proved beyond reasonable doubt, then the weakness of the defence cannot create any dent in the prosecution case. I am of the firm view that there is no force in the appeal of the appellants on merits, hence it is dismissed.

8. Now I come to the legal contention of the learned counsel for the appellants whether the appellants should be convicted under section 397/34, P.P.C. or under section 411/34, P.P.C. as they were found in the possession of stolen car when they were intercepted and arrested by P.W.3 at Jaranwala Road.

9. In view of the above discussion, as I hold that the prosecution evidence is confidence inspiring and complainant Muhammad Ali has specifically stated before the Court that it was the appellants who snatched the car from him on gun‑point, hence their conviction under section 397/34, P.P.C. is amply justified under the law, so this legal objection is repelled and their conviction under section 397/34, P.P.C is maintained. The sentences imposed upon the appellants by the learned trial Court along with the sentence of fine are also maintained. H.B.T./S‑965/L??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.