1975 P Cr (PLP)

Usman Ghani, Asstt. A;-G. for the State. Date of hearing : 31st March 1975. Appellants Ali Dost and Rajab Ali stand convicted under sections 392 and 342/34, P.P.C. sentenced on the first count to four years' rigorous impri sonment and a fine of Rs. 300, or in default to suffer rigorous imprisonment for six months and, on the second, to one year's rigorous imprisonment. They were tried and convicted as aforestated by the 1st Additional Sessions Judge, Nawabshah vide judgment dated 22nd December 1972.

2. The prosecution case, in a nutshell, is that both the appellants had waylaid Latif and Ghaffar, both aged 12 years, at about 2 p.m. on 25th August 1971 while being armed with laths and khurdam and deprived them of their cycle, a pair of goggles, fountain pen and 75 paisa after tying them with a rope, which they had taken from the cycle. After depriving them of these articles Rajah Ali took away the cycle while Ali Dost untied them and threatened them not to disclose the theft to any one otherwise they would be killed and saying so, he also left the place. Both Latif and Ghaffar returned at 5 p. m. and narrated the incident to Nizam Khan, who is the father of Latif. Nizam Khan thereafter alongwith Nazir Ahmad, who were then in the house, proceeded' to village Tharumal, where the appellants resided ands contacted them there. The appellants promised to return the stolen articles the next morning arid at the same time persuaded them not to lodge the report. When they went in the morning they again met the appellants but they denied having the stolen articles with them. Nizam Khan went to the head master of the school, where Latif and Ghaffar were studying and informed him of the incident and at his instance lodged the F.I.R. at 08‑30 hours the same day.

3. After recording the report Ghulam Mohammad S.H.O., Police Station Daur, went to the wardat which was the juwar cultivation, where the tyre marks of the cycle were observed. He then alongwith Ghulam Muhammad, Latif and Ghaffar went to the appellant's village, where both the appellants surrendered themselves. Appellant Rajah Ali produced from his house a pair of goggles, a fountain pen, 75 paisas and a khurdam which were taken into possession vide mashirnama Ex.

13. Appellant Ali Dost next went to his house and from there he brought a cycle, which was secured vide mashir nama, Exh. 14: All these articles were identified by Latif and Ghaffar.

4. The appellants, in defence, denied the prosecution case. While Rajah Ali denied having any knowledge of the incident, Ali Dost pleaded that there was a dispute, between him and Nizam Khan over the rotation of water which led to a fight between them and that this was the reason for big false, implication.

5. Neither Ali Dost nor Rajah Ali has claimed the ownership of the cycle which admittedly belonged to the complainant party vide Exh. 7, which is an original receipt for the purchase of the cycle. Similarly, the pair of goggles, fountain pen and the money are also not claimed by the appellants. The recovery of these articles is not only established by the evidence of mashir, Gut Muhammad, but also by that of the S. H. O. The mashir, while stating that the cycle was produced by Ali Dost and admitting the contents of the mashirnama to be correct, has softened his evidence in cross‑examination by admitting his assertion in the committal Court that the S.H.O. had told him that he bad brought the cycle from the house of appellant Ali Dost. Nonetheless, this statement was not put to the S.H.O. and as such it is hearsay and is of no value. In the absence of any evidence to suggest the foisting of the cycle and the stolen articles on the appellants, I am convinced that they were recovered from their possession. As for the evidence of Latif and Ghaffar they have also deviated in cross‑examination as to the recovery of the stolen articles from the appellants. The former, in the committal Court, stated that the cycle was secur ed from the house of a relative of Rajah Ali which, of course, he denied, but the contradiction has been proved. Again, he admitted having stated in the committal Court that the money, fountain pen and the pair of goggles were recovered from the house of Ali Dost and that it was Ali Dost who had told his brother to bring those articles. Ghaffar also towed the same line in cross-examination. Apparently, such obliging admissions indicate that the complai nant party must have patched up to favour the appellants and as such they, are not entitled to any weight. The complainant has also to an extent mini mised his evidence. In the F. I. R., he has stated that he had contacted the appellants who had promised to return articles the next morning but in his evidence he has merely referred to having met their `elder' who had promised to get the articles restored, but on the next day, the `elder' informed him that he was helpless in the matter. Latif and Ghaffar have also made some inconsequential admissions which cannot but be assessed on the same footing as one of extending favour to the appellants. We have found no reason why the two appellants would be implicated if they .had not committed the crime. Their names were disclosed in the F.I.R. and at was from their possession that the stolen articles were recovered.

6. In this view of the matter, the prosecution has established its case beyond reasonable doubt and I would maintain their conviction. As for the sentence it appears to be severe. Accordingly I would substitute a sentence of one year's rigorous imprisonment and a fine of Rs. 100, or in default to suffer rigorous imprisonment for one month on the first count, and on the second, a sentence of six months rigorous imprisonment, which are ordered to run concurrently. Subject to this modification the appeal stands dismissed. They are on bail and they should be taken into custody for serving out the sentence. Order accordingly.