1989 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑ This criminal appeal arises from the judgment of learned Judge, Punjab Special Court for Speedy Trials No. VI, Bahawalpur, whereby he, on 14‑9‑1988, while acquitting Noora, Falak Sher and Muhammad Dawood co‑accused of various charges, convicted Ghulam Sarwar and Karim Bakhsh appellants under section 392 read with section 397, P.P.C. and sentenced them to 10 years' R.I. and a fine of Rs.10,000 in default thereof 4 years' R.I. each. It was directed that the fine if recovered, half of the same be paid to Haji Abdur Rashid P.W.

2. The occurrence took place on 1‑2‑1988 at 9 p.m. on main road leading to Fort Mirgrah of Police Station Marrot. The F.I.R. Exh.P.B. was lodged by Haji Abdur Rashid P.W.2 on 2‑2‑1988 at 2‑10 a.m. and was recorded by Mahboob Raza Shah A.S.I. P.W.12. The distance between the place of occurrence and the police station is 20 kilometres.

3. The charge under section 392 read with section 397, P.P.C. against the appellants was that they on 1‑2‑1988 at 9‑00 p.m. duly armed with pistol and revolver robbed Haji Abdur Rehman P.W.2 of Rs.5,000 which were wrapped in his handkerchief and also forcibly took away his motor‑cycle.

4. The appellants were arrested on 6‑4‑1988 by Zia Feroze Inspector/S.H.O. P.W.15. He prepared their moulds Exh.P.3/A and P.3/B vide memo. Exh.P.D. attested by Riaz Ahmad P.W.4 and Abdur Rashid son of Siraj Din (not produced). They were sent to judicial lock‑up on 7‑4‑1988 for the purpose of holding identification parade. On 16‑4‑1988 parade for the identification of the culprits was held under the supervision of Khadim Hussain, Tehsildar/Magistrate Second Class, P.W.6. Haji Abdur Rashid P.W.2 correctly identified Ghulam Sarwar and Karim Bakhsh appellants as culprits. On 24‑4‑1988 Ghulam Sarwar led to the recovery of pistol P.5 and 4 cartridges P.5/1-4 which were taken into possession vide memo. Exh.P.J. attested by Muhammad Arif P.W.7 and Nazir Ahmad P.W.8. On the same day, Karim Bakhsh appellant got recovered revolver P.6, 4 bullets P.6/1‑4 and handkerchief P.7 which were taken into possession vide memo. P.K. attested by the same witnesses. After the occurrence, Ghulam Sarwar appellant had given Rs.1,000 to Manzoor Ahmad P.W. 11 as a price of the cycle sold by the latter to the former. During the investigation of this case, Manzoor Ahmad produced currency notes valuing Rs.1,000 before Zia Feroze Inspector PW.15 which were taken into possession vide memo. Exh.P.H. attested by Muhammad Sharif P.W. and Muhammad Shafi (not produced) after the occurrence. Manzoor Ahmad S.H.O. Police Station Zahir Pir P.W.9 had seized motor‑cycle Exh.P.l of Abdur Rashid complainant from the possession of one Muhammad Iqbal under section 550, Cr.P.C. vide memo. Exh.P.M. attested by Muhammad Bilal P.W.10 and Ghulam Rasool Khan (not produced). The memo was prepared by Manzoor Ahmad S.H.O. P.W.9. During the investigation of this case, Zia Feroze Inspector took into possession motor‑cycle Exh.P.l alongwith the recovery memo. P.M. prepared by Manzoor Ahmad S.H.O. P.W.9. After the investigation, the appellants alongwith the acquitted accused were challaned to face trial. They denied the charge and claimed to be tried.

5. To prove its case, the prosecution produced as many as 15 witnesses. Abdur Rashid complainant appeared as P.W.2. He stated that at the eventful time, he was coming from Bahawalnagar towards his house situated in Chak No. 288/HR. Reaching near Pully of Chak 288/HR on the metalled road, he found 2 persons standing there. They gave him signal to stop whereupon he stopped his motor‑cycle. He saw Ghulam Sarwar and Karim Bakhsh appellants present there. Ghulam Sarwar was armed with a pistol and Karim Bakhsh was carrying a revolver in his hand. They demanded the motor‑cycle from him. On' his refusal to oblige them, they injured him with the butts of their weapons. They also broke his teeth. Ghulam Sarwar forcibly took out Rs.5,000 which were wrapped in handkerchief from his pocket. After snatching motor‑cycle from him, they went towards Chak No.295/HR. Khadim Hussain, Tehsildar/Magistrate P.W.6 stated that in an identification parade held on 16‑4‑1988 for the identification of the culprits of the robbery case, Haji Abdur Rashid P.W.1 correctly identified Ghulam Sarwar and Karim Bakhsh appellants. Dr. Maqsood Hussain P.W.1 had medically examined Haji Abdur Rashid P.W.2 on 2‑2‑1988. He found 19 injuries on his person. All were caused by blunt weapon. Out of 19 injuries, 3 injuries were declared grievous. The doctor found 5 teeth of Haji Abdur Rashid fractured at root level and mid‑level. Muhammad Sharif P.W.5 stated that Manzoor Ahmad had produced Rs.1,000 before the Investigating Officer which were taken into possession vide memo. Exh.P.H. Muhammad Arif P.W.7 and Nazir Ahmad P.W.8 supported the recoveries of pistol, cartridges, revolver, bullets and handkerchief from the appellants. Manzoor Ahmad Inspector/S.H.O. P.W.9 stated that he‑had seized motor‑cycle P.1 from possession of Muhammad Iqbal as suspected stolen under section 550, Cr.P.C. Muhammad Bilal P.W.10 stated that motor Exh. P.1 was seized from the possession of Muhammad lqbal son of Ghulam Sarwar appellant vide memo. Exh. P.M. Manzoor Ahmad P.W.11 stated that currency notes valuing Rs.1,000 were given to him by Ghulam Sarwar appellant as a price of the cycle purchased from him which he produced before the police. Mahboob Raza Shah A.S.I./P.W.12 had recorded F.I.R. Exh.P.B. and had taken into possession articles P.8 to P.13 from the place of occurrence vide memo. Exh.P.L. Zia Feroze Inspector had arrested the accused, effected recoveries of the fire‑arm and handkerchief from them. He took into possession motor‑cycle P.1 from Police Station Zahir Pir and currency notes of Rs.1,000 produced before him by Manzoor Ahmad P.W.11. The rest of the evidence is of formal nature.

5. When examined under section 342, Cr.P.C. the appellants denied all the incriminating circumstances. They did not produce any evidence in defence. They also refused to make statement on oath in disproof of the charge against them.

7. Believing the statement of Haji Abdur Rashid, Khadim Hussain, Tehsildar P.W.6, medical evidence and the incriminating recoveries from the appellants, the learned trial Court has convicted and sentenced the appellants as stated above.

8. Ghulam Sarwar and Karim Bakhsh appellants have filed this appeal through jail. We have gone through the record with the assistance of learned A.A.‑G. After having anxiously attended to the entire evidence that has been produced by the prosecution, the statements of the appellants, recorded under section 342, Cr.P.C. and the circumstances appearing in the case, we are convinced that the trial Court has rightly convicted the appellants under section 392, read with section 397, P.P.C. We find that Haji Abdur Rashid is quite independent witness. He had no motive to involve the appellants falsely in the case. So much so he did not name them in the F.I.R. He only identified them as his culprits in the identification parade held on 16‑4‑1988. He has successfully faced the test of cross‑examination. There is nothing in evidence to show that the appellants were shown to him by the police before holding of the identification parade. The appellants had not raised such objection before Khadim Hussain, Tehsildar at the time of the parade. Medical evidence shows that Haji Abdul Rashid was really belaboured and had received as many as 19 injuries during the occurrence. The recovery of his handkerchief from Karim Bakhsh appellant corroborates his statement and also connects Karim Bakhsh with the commission of offence. Zia Feroze Inspector had no enmity against the appellants. The statement made by the complainant is in consonance with the probabilities and materially fits in with the circumstances of the case. He seems to be an absolutely dependable witness and conviction can safely be based/upheld on his statement without any corroboration. We do not see any defect in. the identification proceedings conducted by Khadim Hussain Tehsildar/Magistrate. He had taken necessary precautions before holding the parade. The appellants have not been able to rebut prosecution case and the evidence produced by it. For all these reasons we are convinced that the trial Court has rightly believed and acted upon the evidence produced by the prosecution.

9. This brings us to the question of sentence. We feel that in the circumstances of the case, the sentence awarded by the trial Court is neither excessive nor harsh.

10. The upshot of the above discussion is that there being satisfactory basis for upholding the conviction and sentence of the appellants, the appeal is dismissed. They will, however, get the benefit of the provisions of section 382‑B, Cr.P.C. S.A./G‑221/L Conviction/sentence upheld.