1998 PLP 518 (MLD)

Appellants have assailed a judgment dated 20-2-1997 delivered by the Court of Additional Sessions Judge/Izafi Zila Qazi, Samar Bahg, District Dir whereby each one of the appellants has been convicted under section 392, P.P.C. read with Article 20 of the Offences against Property (Enforcement of Hudood) Ordinance, 1979 and sentenced to five years R.I each and fine of Rs. 10,000 each in default of payment to undergo further one year R.I. each. Also each one of them has been convicted by the same judgment under section 411/34, P.P.C. and sentenced to one year R.I. each and have been acquitted from the charge under section 342, P.P.C. Benefit of section 382-B, Cr.P.C has been extended to each one of them.

2. Story of prosecution, in brief, is that while Karamatullah Khan (P.W.6), S.H.O. Police Station Munda District Dir was on patrol duty at the Bazar of Munda, it was reported to him through a written complaint (Exh. PA/1) on 5-2-1997 at 12-15 a.m. by complainant Muhammad Zahir Shah (PW-1) who had come from a village in Malakand Agency for Fateha Khawni of Haji Gul Muhammad Malik. He was accompanied by Haji Mir Dad (P.W.2) Hakim Saeed (P.W.3) and Gul Rahman. While returning some persons, having blocked the Shahi road by a motor car near Raheemabad made them to step down from their Datsun No. 6594-PRP. They were four, one of whom later on came to be known as Sabir r/o Qazzafi. They snatched this Datsun from them and proceeded towards Qazzafi. The complainant, then, contacted a nearby police chowki and Ghobana and through wireless intimated the police station. Consequently S.H.O. followed the robbed Datsun and intercepted it on its way and arrested other three accused/appellants as well. An FIR was lodged on the same day Q 12.15 a.m. and all the four appellants were challaned. They were charged under sections 347/34, 411/34 P.P.C. and Article 17 (2) read with 20 of the Offence against Property (Enforcement of Hudood) Ordinance, 1979 to which they did not plead guilty. Prosecution examined 7 P.Ws. and appellant Sabir Khan examined himself on oath.

3. At the outset the question which needs resolution in this case is that appellant Sabir Khan, aged 55/56 years, has claimed ownership of the robbed property in his statement under section 342 Cr.P.C in the following words:-- To specific questions about the way the incident has been related by the prosecution, all the appellants including Sabir Khan have denied the existence of such an incident at all in their statements under section 342(2), Cr.P.C. But in his statement on oath under section 340(2), Cr.P.C. Sabir Khan has admitted the A existence of such an incident, but he has given his own version of the story. During examination-in-Chief he is deposing: The documents on the basis of which he is claiming are exhibited as Exhs.I/D-1, I/D-2. Now the position of Exh.I/D-2 is that it is a receipt cum -agreement passed on by Al-Khalij Motors, New Ada Munda District Dir indicating that vehicle RIP-6524 was sold for Rs. 6,15,000 to appellant Sabir Khan. Out of this consideration, Rs. 62,000 was paid by him on 6-5-1995 and the remaining amount was payable by 6-2-1996 and every month Rs. 5000 as well. This receipt-cum-agreement is not a registered document. Condition No. 5 in the said agreement is that this vehicle purchased on the basis of deferred payment, if sold to some one else or in case of accident, sinking or snatching, the second party i.e. Sabir Khan himself shall be responsible. The column in condition No. 8 has been left unfilled. Ex. I/D-1 is the form of application for transfer of vehicle to the Registration Authority moved by one Sher Wali Khan s/o Ghaffar Khan. It carries neither the name of appellant Sabir Khan nor the date of application. This position has been admitted by appellant Sabir Khan during cross. He is deposing:-- Appellant Sabir Khan has claimed that he sold the incriminating vehicle to Hazrat Habib and that Hazrat Habib sold it to Shamshool. None of them have been produced in defence. In view of this position and in the presence of statutory provisions of the Sale of Goods Act, 1930, and the Provincial Motor Vehicles Ordinance 1965, I hold that the claim of appellant Sabir Khan about the ownership of vehicle No. PRP 6584 is not maintainable in law.

4. I have heard the learned counsel for appellant and State. Appellant's counsel has contended that the case is that of two versions. One that of prosecution, second that of ownership of the incriminating robbed article in the hands of appellant Sabir Khan. As discussed above, the second version is not maintainable and therefore, this contention is repelled. The contention that no mens rea was there as the act was done bona fide is repelled for the simple reason that appellants have first of all denied the occurrence in their statements under section 342, Cr.P.C and, later on, in his statement under section 340(2), Cr.P.C appellant Sabir Khan has taken a somersault, has admitted the existence of the occurrence but has twisted the story. Depositions of the victims namely Muhammad Zahir Shah (P.W.1), Haji Mir Dad (P.W.2) and Hakim Saeed (P.W.3) in the circumstances of the case, are inspiring confidence, although learned counsel for appellant is correct that there appear to be discrepancies among the ocular witnesses. But these discrepancies are neither material nor substantial to dislodge the entire story of the prosecution.

5. It has been contended by the counsel for appellant that the offence under section 411 P.P.C , is not constituted. The said section reads: "Dishonestly receiving stolen property

Whoever dishonestly receives or retains, any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. " I agree with this contention in view of the fact that once the commission of robbery has taken place and the incriminating robbed valuables have not yet been transferred to some one who has received the said valuables dishonestly or has retained the said stolen property, knowing or having reason to know to C believe the same to be stolen property the offence under section 411 P.P.C. is not constituted. In the present case, the robbed vehicle was recovered soon after the commission of robbery and in-between it was not yet received or retained dishonestly by anybody to constitute offence under section 411 P.P.C. Consequently, conviction and sentence of the appellants under section 411 P.P.C. is set aside.

6. I find certain mitigating circumstances in the present case. Muhammad Zahir Shah (P. W.1) has admitted that in the vicinity of the place of occurrence, some relations of the appellants also reside and at the time the robbed vehicle was snatched from them, the residents of those houses had also taken Lathis against the complainant party. He has also admitted that no other vehicle was robbed. The circumstances in which the vehicle was robbed do prove that the appellants are not habitual robbers or thieves. It appears that due to illegal practices of sale and purchase of vehicles and other valuables in our society, the appellants have developed an erroneous concept of law and under the spell of the said concept have indulged into the offence clearly punishable under section 392 P.P.C I am persuaded in the circumstances of the Q case that it shall be in the interest of justice to maintain the conviction under section 392 P.P.C. but sentence of each one of the appellants be kept at the minimum of R.I. for three years and fine of Rs. 2000 each, in default of payment of the said fine to undergo S.I. for three months more. Benefit of section 382-B, Cr. P.C. is also extended to each one of the appellants. The impugned judgment is upheld with modifications as discussed above. H.B.T./1157/FSC Order accordingly.