1998 PLP 1367 (SCMR)

KHALIL-UR-REHMAN KHAN, J.

The petitioners seek leave to appeal against the judgment dated 30-4-1997 of the Federal Shariat Court whereby the conviction and sentence of Liaqat Ali and Ghulam Farid (petitioners Nos.1 and 2) under section 411, P.P.C. was maintained and their Appeal No.45/I of 1996 was dismissed while the appeal No.54/1 of 1996 filed by Abdul Qayyum (Petitioner No.3 herein) and Muhammad Ayub was accepted in the manner that their convictions and sentences under sections 458 and 392, P.P.C. were set aside and Abdul Qayyum (petitioner No.3) was instead convicted under section 411, P.P.C. and sentenced to three years R.I. and a fine of Rs.5,000 or in default to suffer further undergo six months R.I.

2. Learned counsel for the petitioners argued that conviction of the petitioners under section 411, P.P.C. is not warranted under law as the recovery of ornaments and cash is fake and has been planted on the petitioners on account of enmity--as one of the sons of the complainant party is Assistant Sub-Inspector of Police, the recoveries could not be believed as no inhabitant of the locality was joined to witness the recoveries and Abdul Sattar P.W.9, the witness from the public, belonged to a different village and is relative of the complainant party, and the exclusive possession of the accused/petitioners from whom the recoveries were shown to have been respectively made was not established. Learned counsel argued that it appears that in fact nothing was stolen and a false case was lodged on account of enmity with Liaqat Ali as he had asked for the hand of Mst. Farkhanda which was not accepted.

3. Assuming that Liaqat Ali's request was turned down, that would have caused annoyance to Liaqat Ali and not-to the complainant party and as such there was no occasion for the complainant party to falsely involve Abdul Qayyum or the .other petitioners in a dacoity case. Had the intention been to rope in falsely Liaqat Ali in the case, his name would have- been mentioned in the F.I.R. itself rather than reporting that three unknown persons had committed the trespass by night and had looted the ornaments and the currency.

4. Learned Judges of the Federal Shariat Court have based the conviction on the evidence of recoveries. Learned counsel for the petitioners took us through the said evidence and we are also of the view that the evidence of Abdul Sattar P. W.9 and Ghulam Murtaza, Investigating Officer P.W.12 could not be shown to be not trustworthy or unreliable. The recoveries were made at the pointation of each of the accused/petitioners and a perusal of the Recovery memo. shows the special knowledge of the accused/petitioners of the place where the said ornaments had been secretly kept. The Investigating Officer further pointed out that Abdul Sattar P.W.9 was made to join the Police party on the way to the place of recovery and an effort made to join the Lambardar of the village or the Councillor did not succeed as both of them were not available in the village at that time.

5. In addition to the above features the fact remains that reappraisal of the evidence cannot be sought at this stage. Neither any misreading nor any non reading of any material piece of evidence could be pointed out. Moreover, the petitioners have already undergone substantial part of their sentence. We, in the circumstances, do not find any justification to substitute our view for the view which prevailed with the learned Courts below. We may, however, add that the benefit of section 382-B, Cr.P.C. should have been allowed to the petitioners. On this question we have heard the learned Additional Advocate-General (Sh. Altaf Elahi) who was present in Court in connection with another case. No justification could be made out for not extending the benefit of section 382-B, Cr.P.C. to the petitioners.

6. In the circumstances, while maintaining the conviction and sentence of the petitioners we direct that the petitioners shall be extended the benefit of section 382-B, Cr.P.C. By 'allowing the said benefit, if they have served out their sentences they shall be released forthwith if not required to be detained in any other case subject to deposit of amount of fine. The Petition stands disposed of accordingly. N.H.Q./L-2/S Order accordingly.