1992 P Cr (PLP)

JUSTICE RAJA AFRASIAB KHAN, (MEMBER)

Muhammad Khan (20), son of Alam Khan, Muhammad Zafar Khan (20), son of Muhammad Asghar Khan, Abdul Qayyum (27), son of Mirza Muhammad Hussain, Gul Jehan (21), son of Shah Jehan, and Muhammad Hanif alias Chiku (22), son of Amir Abdullah, were tried by the learned Judge, Special Court for Speedy Trials, Lahore, under sections 148, 452/149 and 395/149, P:P.C. They were convicted under section 148, P.P.C. and sentenced to one year's R.I. each. They were further convicted under section 452/149, P.P:C. and sentenced to 4 years' R.I. each plus a fine of Rs.1,000 or in default thereof to suffer six months' R.I. each. They were also convicted under section 395/149, P.P.C. and sentenced to imprisonment for life and a fine of Rs.5,000 each or in default thereof to undergo one year's R.I. each. The Court ordered that all the sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. was also extended to the appellants vide judgment, dated 26-11-1991. Muhammad Khan and Muhammad Zafar Khan challenged their conviction and sentences separately by filing Criminal Appeal No.36/SAC of 1991 and Criminal Appeal No.39/SAC of 1991, respectively. Similarly, Muhammad Hanif, Gul Jehan and Abdul Qayyum filed a joint Criminal Appeal No.40/SAC of 1991 against their conviction and sentence before this Court. We propose to decide these appeals together by this judgment. Shortly stated, the facts are that Sikandar Hayat (45/46) son of Rustam is an agriculturist. He has built a residential house and a Dera for tethering his cattle within the area of village Kalurkot Chah Akeeranwala. On 13-10-1991 at about 11-00 a.m. he went to Kalurkot to attend his some personal matter. At 2-00 p.m. he returned home and his wife Mst. Parveen Bibi disclosed that some time ago, some dacoits looted their house at pistol point. She continued to state that at about 1-30 p.m. a car stopped at the main gate of their house. She went outside towards the said gate and found that -rive persons had already alighted from their car. One of the dacoits was armed with a gun while another had a pistol with him. She was frightened and as such went inside the house immediately. The accused also entered into the Verandah. One of the accused himself closed the eastern gate of the house. Mst. Parveen Bibi rushed into a room and bolted it from inside. The accused looted the goods from the southern room of the house. Thereafter, the accused came to the room where the lady was concealing herself and issued a threat to her that in case she did not open the door, they would set it on fire. The dacoits struck the door with a big wooden piece and in consequence the bolts of the door were broken. The door opened automatically. All the five accused trespassed into the room of the lady and again issued threats that in case she raised an alarm, she would be done to death there and then. The accused broke open the iron boxes. The golden ornaments weighing 1,014 grams of value of Rs.3,26,000 (mentioned at Serial Nos.1 to 30 in the F.I.R.) and silver ornaments weighing 605 grams of the value of Rs.500 (mentioned at Serial Nos.l to 4 in the F.I.R.), one .12 bore licensed gun of the value of Rs.12,000, one electric iron of the value of Rs.500, one thermos of the value of Rs.500 and currency notes of the value of Rs.15,000 were collected and looted by the accused by a display of their weapons. Thereafter, the accused decamped with their booty. After receiving information from Mst. Parveen Bibi, the complainant immediately left to give information to the police station about the incident. On the way outside his house, Zahoor Ahmad and Arshad met him and disclosed that they were going in a car towards the Dera of Muhammad Nawaz to meet him when they saw a car bearing No.RIP-9354 coming out of his house wherein five people were sitting armed with fire-arms. Gul Jehan and Abdul Qayyum Merasi were identified by them because they were known to them previously.

3. The formal F.I.R. Exh.PA. was recorded on the statement of Sikandar Hayat by Ameer Abdullah Khan Inspector/S.H.O. Police Station Kalurkot on 13-10-1991 at 2-25 p.m. The Police Officer visited the spot in the company of Sikandar Hayat complainant. The statement of Mst. Parveen Bibi was recorded by him. Site Plan Exh.P.R. was prepared. He recovered the broken locks P.10 to P.13, two Kundas P.14 and P.15, two Chitkanees (P.43 and P.44), broken ornaments, boxes, ring box, licence of the gun of the complainant and took into possession all these articles vide memo. Exh.P.E. Thereafter, the police party went out in search of the accused. After sometime, Car No.RIP-9354 was spotted by the police near the District Council Hall, Mianwali. The police party over took the said vehicle and forced them to stop it there and then. All the five accused were found sitting in the car. They were arrested and searched thoroughly. A .12 bore pistol P.18 and a cartridge P.17 were recovered from Abdul Qayyum and were taken into possession vide memo. Exh.P.F. Gold and silver ornaments P.19 to P.29/1-8 were recovered from him and were taken into possession vide memo. Exh.P.G. From Zafar accused, .12 bore gun P.29 and 7 ornaments P.30 to 36 and a cash of Rs.12,000 were recovered vide memo. Exh.P.H./1. Similarly, from Muhammad Hanif, accused, 7 ornaments were recovered vide memo. Exh.P.J. Muhammad Khan was found carrying a .7 mm rifle P.37 and 8 bullets P.39/1-13 which were taken into possession vide memo. Exh.P.K. Five ornaments were recovered from him vide memo. Exh.P.L. Likewise, five ornaments were recovered from Gul Jehan vide memo. Exh.P.M. The above recoveries show that in the meantime the looted goods of the complainant were distributed by the robbers among themselves. From the search of the car, its registration book P.32, thermos P.40, iron P.41 and a scissors P.45 were recovered and were taken into possession vide Exh.P.N. On 14-10-1991, Sikandar Hayat (complainant), Mst. Parveen Bibi (wife of complainant), Inayat Ullah and Ghulam Hussain goldsmiths identified the ornaments in the police station to be the property of the coraplainant. The complainant also produced receipts of the ornaments P.1 to P.8 to show that he was the owner of the gold. The receipts were taken into possession by the Investigating Officer vide memo. Exh.P.B. The ornaments were given to the complainant on Sapurdari vide Sapurdari Nama Exh.P.D. Separate cases under the Arms Ordinance, 1965, were registered against Abdul Qayyum Merasi and Zafar accused for keeping with them unlicensed weapons vide Exh.P.O. and Exh.P.Q.

4. Sikandar Hayat, complainant P.W.1, repeated his earlier statement before the Court. Mst. Parveen Bibi P.W.2 is the wife of the complainant. She too narrated the whole story before the Court and substantially corroborated the statement of her husband. Muhammad Arshad P.W.3 deposed that on the day of occurrence, he and Zahoor P.W. were going together to the Dera of Malik Muhammad Nawaz. They saw car No.RIP-9354 while coming out from -the house of Sikandar Hayat. The car was being driven by Abdul Qayyum Merasi while Gul Jehan was sitting with him on the front seat. Three persons were sitting on the back seat of the car. One of them was armed with a .7 mm rifle while another had a gun with him. Inayat Ullah P.W.4 is a goldsmith. He deposed that he had prepared the ornaments for the complainant and sold the articles to him against receipts. He stated that the receipts P.3 to P.9 were written and signed by him in respect of sale of the ornaments. The ornaments were also identified by him in Court to prove that the property was owned by the complainant. To the same effect is the statement of Ghulam Hussain P.W.5, another goldsmith. He deposed that he had been working as goldsmith for the-last about' 35 years and that he had prepared the ornaments in question for the complainant's family. He too identified the ornaments in question to be the property of the complainant. He stated that he had issued receipts P.l to P.2 to the complainant. While making a statement under section 342, Cr.P.C. Muhammad Khan appellant denied the allegations levelled against him and deposed that he had falsely been implicated. He disclosed that a case under section 307, P.P.C. was registered at his instance against the relatives of Amir Abdullah Inspector earlier to this occurrence. He also stated that he was arrested from his house at night time. He pleaded his innocence. He also mentioned that he had enmity with his co-accused Muhammad Zafar Khan. Muhammad Zafar Khan, appellant took the plea in his statement that he was implicated in the case on account of enmity with Investigating Officer. He disclosed that his relatives Meer Gul Rang and Jehangir etc. murdered Ghulam Khawaja, a maternal uncle of Ameer Abdullah Inspector. Abdul Qayyum, appellant in his statement pleaded that he had been involved in the case on account of suspicion and that he was taken into custody from his house during night. Gul Jehan appellant took the plea that he belonged to Hathikhel tribe and that he had enmity with Ameer Abdullah Khan Rokhari and that his tribe was inimically disposed towards him and the members of his tribe. He stated that on account of this enmity, he was implicated. Similarly Muhammad Hanif appellant stated that he was involved on account of established enmity and was arrested during night from his house. Mehr Muhammad D.W.1, Farooq D.W.2, Aziz Khan D.W.3 Alam Khan D.W.4 and Mehr Khan D.W.5 were produced by the appellants in support of their defence. Mehr Khan D.W.1 deposed that Gul Jehan appellant wits known to him since his childhood and that he was of good character. To the same effect was the statement of Farooq D.W.1. He deposed that the appellant Muhammad Hanif was arrested by the police on 13-10-1991 at 9/9-15 p.m. from near the Committee Chowk of the City. Aziz Khan D.W.3 stated that the appellant was of good character and that he was arrested by the police from a hotel at Banukhel Road. Alam Khan D.W.4 deposed that Ghulam Khawaja of village Rokhari was known to him and that during a fight having taken place in village Tari Khel, said Ghulam Khawaja was killed. A case under section 302, P.P.C. was registered against Jehangir Khan, Akber Khan,, Gul Mir Khan, Ahmad Khan and Mir Kalam Khan. It was stated that Mst. Pashtaney was the paternal-aunt of Gul Mir etc. accused in the aforesaid case and that she was the grandmother of Zafar appellant. He also stated that Zafar appellant was present in his house at night when he was taken into custody by the police. He also deposed that father of Zafar appellant went to Amir Abdullah Inspector and requested him not to arrest Zafar. Almost to the same effect is the statement made by Mehr Khan D.W.5.

5. The learned trial Court believed the prosecution evidence and convicted and sentenced the appellants as already mentioned above.

6. It is contended by the learned counsel with vehemence that the case against the appellants was not proved beyond doubt. They argue that there was absolutely no evidence available on record to show that the appellants looted the property in question from the house of the complainant on the day of occurrence. The argument is that Mst. Parveen Bibi did not know the accused previously and that she did not give any description about the features of the accused who committed the dacoity in her house. According to the learned counsel, no identification parade was held although in the circumstances, it was necessary to do so under the law. It is also added by the learned counsel that no descriptions of the accused were given either in the F.I.R. or in the statement of Mst. Parveen Bibi. According to the learned counsel, she made a vague statement about the accused in Court which was wholly insufficient to register conviction against them. It is stressed that after the expiry of one month of the occurrence, it could not be possible for the complainant to retain in her memory the features of the accused for their identification in Court. On this basis, he maintains that evidence of Mst. Parveen Bibi has to be excluded from consideration. Lastly, it is argued that it cannot be said that the alleged recovery was effected from the accused soon after the incident so as to entitle the Court to draw presumption against them that they were the robbers. About the evidence of Muhammad Arshad P.W.3, learned counsel say that he is merely a chance witness and as such no credence should be given to his evidence. It is further argued that this witness did not identify the appellants in Court. Mr. M.A. Zafar, learned counsel argues that there is no evidence to show that the gun recovered from his client was actually the same gun which was held by the accused at the time of occurrence. He maintains that the recovery of Rs.12,000 was not proved beyond doubt. The learned counsel supported that conviction and sentence of the appellants by adopting the reasons given by the learned trial Judge in his judgment. It is argued that the prosecution succeeded to prove its case against the appellants beyond any reasonable doubt.

7. We have heard the learned counsel for the parties at considerable length and have gone through the entire record with their assistance very carefully. Before proceeding further, word may be said here about the defence plea. The defence witnesses deposed that the appellants were of good character. They also disclosed that they were taken into custody by police from their homes during night. They did not say anything in rebuttal about the material allegations levelled against them that they were caught by the police soon after the occurrence and the entire stolen property was recovered from them in presence of prosecution witnesses. The defence witnesses did not say that the recovered property belonged to the appellants. Even otherwise this was not the case of the appellants themselves. In the circumstances, it cannot be believed that such a huge property shall be planted by the police in the case just to implicate the appellants for nothing. In the circumstances, the defence plea being worthless is hereby rejected.

8. The evidence deposed by Sikandar Hayat P.W.1 and Ameer Abdullah P.W.7 demonstrates beyond any shadow of doubt that soon after the occurrence, all the appellants were followed hotly and intercepted when they were running in car No.RIP-9.354 near District Council Hall, Mianwali, with the looted property. They were arrested there and then and the entire stolen property including the ornaments was recovered from their possession in presence of competent witnesses. They did not claim the stolen property to be their own property. These articles were later on correctly identified by the complainant, his wife, Inayat Ullah and Ghulam Hussain P.Ws It is proved beyond doubt that the ornaments and other articles were owned and possessed by Sikandar Hayat, complainant and his wife Mst. Parveen Bibi. Mst. Parveen Bibi proved that she was deprived of the property by the accused at pistol point in her house. The fact that the stolen property was recovered from the possession of the appellants soon after the occurrence was proved beyond doubt on the basis of trustworthy evidence. The presumption under Article 129 of the Qanune-e-Shahadat 1984 would be available to hold that these articles were taken away by the appellants from the house of the complainant by committing dacoity. This evidence was provided by Mst. Parveen Bibi P.W.2. In our view, the prosecution has been able to prove its case against the appellants beyond reasonable doubt. The appellants failed to explain the circumstances under which they got the possession of this property. We do believe Muhammad Arshad P.W.3 who deposed in Court that he saw Abdul Qayyum, appellant, driving the car alongwith Gul Jehan, appellant, while sitting on its front seat with him when they were coming out of the house of the complainant. It is also proved that the remaining three appellants were sitting in the said cat on its hind seat. The evidence deposed by the P.Ws. inspires confidence and there is nothing on record to doubt them in any manner whatsoever. The case thus stands proved against all the appellants by trusthworthy and reliable evidence of Arshad, Mst. Parveen Bibi, Sikandar Hayat, Ameer Abdullah Inspector, P.Ws.

9. Result of the above discussion is that the appellants were rightly convicted by the learned trial Court under sections 148, 452/149 and 395/149, P.P.C. However, regarding the quantum of sentence, it may be observed that no injuries were inflicted by the appellants to Mst. Parveen Bibi although they E were armed with lethal weapons. Accordingly, the sentences of the, appellants under section 395/149, P:P.C. are reduced from imprisonment for life to ten years' R.I. each. However, the remaining sentences under sections 148 and 452/149, P.P.C. shall be maintained alongwith fines. All the sentences shall run concurrently. With this modification in the sentences, the appeals are dismissed. N.H.Q./23/SA.C. ls dismissed/Sentence reduced.