1990 PLP 484 (SCMR)

Nemo for Respondents (in Criminal Petition No. 72‑R of 1989). Manzoor Illahi, Advocate‑on‑Record for Petitioner (in Criminal Petition No. 64‑R of 1989). Nemo for Respondents (in Criminal Petition No. 64‑R of 1989). Date of hearing: 14th June, 1989. ALI HUSSAIN QAZILBASH, J.‑‑These two petitions hearing No.72‑R of 1989 (Filed by Gulfam and Arshad Mahmood) and No.64‑R of 1989 (filed by Haji Mushtaq Hussain) arise from the judgment of a learned Division Bench of the Lahore High Court, Rawalpindi Bench, dated 1‑3‑1989.

2. The facts narrated by Mushtaq Hussain complainant in F.I.R. Ex.P.A. lodged on 28‑12‑1987 at '.a5 p.m. are that can the eventful day he was present in his shop known as Madina Jewellers, situate in Satellite Town, Rawalpindi, and was busy doing the usual goldsmith work. The doors were bolted from inside the shop. At the relevant time, two persons whose description has been gone in the F.I.R., appeared at the door of the shop, one having a bag in his hands and knocked at the door which was glass fitted. Thinking that they were from sonic department, the door was opened and at once both pushed the complainant and entered the shop. The person who was wearing pants took out a revolver and the other brought out a Chhura and demanded of him to keep quiet and pushed him to the bathroom where: his eyes, hands and feet were tied. Thereafter the two almirahs containing ornaments were opened in the adjoining room, the man armed with Chhura stood on his head while the other started collecting ornaments. The operation continued for about 45 minutes and in the process both of them took away all the ornaments worth Rs.10,00.000). They also picked up a hand‑hag containing cash and some documents and his telephone set was also taken away. Thereafter tire two culprits left the shop and after about 10 to 15 minutes the complainant untied his eyes, hands and feet and rushed to the jewellery shop in front of his shop and informed the shopkeepers and tile two constables who were on duty. The Police Station was informed on the telephone. Soon after Mulazim Hussain Inspector, S.H.O. (PW‑9) reached the shop and recorded the first information report.

3. Mulazim Hussain, S.H.O. then started the investigation. He sent the murasla to the police station where proper F.I.R. was drawn. He then inspected the shop and collected some articles and then prepared the site plan. On the information of one Shahid Javed, the police sent for Gulfam to police station on 6‑1‑1988 where Mushtaq Hussain complainant and his son accused him its one of the culprits. Gulfam then led the police to his house and on his pointation gold ornaments, the details of which have been given in memo Ex.P.D., Exs.P.4 to 40 and lock and key Ex.P.41/1‑2 were recovered. The recovery was witnessed by Mushtaq Hussain and his son Hasan Javed. The witness also identified the gold ornaments. On 9‑1‑1988 on some secret information the police started the search of Arshad Mahmood and when the police party alongnvith the complainant reached the 7th Road, the complainant pointed at Arshad Mahmood as one of the culprits. He was apprehended, who then led the police party to his house and on his pointation a suitcase containing Rs.30,400, a pair of glasses, a calculator and two medical prescriptions were recovered as per the relevant memos. Or. 10‑1‑1988 Gulfam petitioner got recovered his motor‑cycle and helmet and on 20‑1‑1988 the telephone set was also recovered.

4. After the conclusion of the investigation, the two petitioners were tried for offences under section 392/397/34, P.P.C. read with section 452/34, P.P.C. by the Punjab Special Court for Speedy Trial No.4. Rawalpindi. The evidence of the prosecution witnesses was recorded. The defence set up by Gulfam petitioner at the trial was that the complainant had to pay Rs.3,(6.610 to his brothers, namely, Muhammad Ayub and Muhammad Yousaf; two days before the occurrence he and his nephew, namely, Arshad Mahmood, co‑petitioner, had used harsh language with the complainant for the return of the said amount, as a result of which the petitioners have been falsely implicated in the case. The trial Court after considering the pros and cons of the evidence, vide its judgment dated 4‑4‑1988, convicted both the petitioners for the offences charged with and sentenced them to seven years' R.1. each under section 392/397/34, P.P.C. They were also sentenced to three years' R.I. each under section 452/34, P.P.C. Both of them were directed to pay compensation at Rs.10,000 each to Mushtaq Hussain complainant or in default to one year's further R.I. each. The benefit of the provision of section 382‑B, Cr.P.C. has been given to the petitioners.

5. The two petitioners filed appeal in the High Court against their conviction and sentence whereas the complainant filed a revision petition for enhancement of the sentence of the petitioners but both of them were dismissed vide order dated 1‑3‑1988; hence the present petitions.

6. The learned counsel for Gulfam and Arshad Mahmood petitioners vehemently contended that in spite of the fact that the petitioners were known to the complainant he deliberately omitted to mention their names in the F.I.R. in order to keep back his acquaintance with them; that the evidence produced in the case is that of. highly interested witnesses and further that neither the alleged recovery is in accordance with law nor the identification of the petitioners.

7. After hearing the learned counsel for the petitioners we think that theevidence in this case requires re‑appraisal. Leave is, therefore, granted.

8. Since leave has been granted in Criminal Petition No.72‑R of 1989, leave is also granted in Criminal Petition No.64‑R of 1989 filed by the complainant for enhancement of the sentence. M.A.K./G‑219/S Leave granted.