2002 PLP 3904 (YLR)

4. The petition was allowed by my learned brother Justice Nasir Aslam Zahid (as he then was) vide order dated 8‑5‑1995. Consequently he was released on bail.

5. The appeal filed by Muhammad Adam and the appeals filed, by his co convicts, came up for regular hearing on 12‑11‑1995, as nobody appeared on behalf of Muhammad Aslam, all appeals were adjourned. As the position was same on 11‑2‑1996, the appeals were again adjourned. Notice was ordered to be issued to Rana Riaz Ahmad, Advocate, when the appeal came up for hearing on 18‑1‑1997. He appeared on 25‑1‑1997 and stated that he had been engaged, only, for arguing the petition for suspension of sentences and had no instructions to argue the appeal. A direction was issued that notice be sent through S.H.O., Ferozewala for service upon Muhammad Aslam. Notice was also sent through Dak. In spite of that, neither the appellant nor anyone else appeared for him on 15‑2‑1997, for which date appeals were fixed. Similar was the state, when the appeals came up hearing on 4‑3‑1997. On that date, it was directed, that as service of the appellant through notice was not possible, bailable warrants be issued against him for appearing before the Court. S.H.O. who had been directed to execute the bailable warrants was ordered to appear in person on the next date in case, he failed to execute the bailable warrants. Zamir‑ul‑Haq, S.H.O. appeared on 27‑3‑1997 and submitted report that Muhammad Aslam (appellant herein) had been arrested by N‑.W.F.P. Police under Arms Act and was lodged in Central Jail, Peshawar. As it was considered, that presence of Muhammad Aslam cannot be procured without non‑bailable warrants, office was directed to issue non‑bailable warrants against him, giving his address, as Central Jail, Peshawar. Report was received from Superintendent Central Jail, Peshawar that one Muhammad Saleem son of Muhammad Din, was lodged in the said jail and there was no one in jail, named as Muhamtnad Aslam. When the appeal came up hearing on 27‑10‑1997, a direction was issued that inquiry be made from Superintendent Central Jail, Peshawar, whether Muhammad Saleem son of Muhammad Din, Caste Moghal resident of Ferozewala, District Sheikhupura, was Muhammad Aslam son of Muhammad Din, resident of Ferozewala, District Sheikhupura and whether he was the same person who had filed Criminal Appeal No.34/L of 1995, against judgment dated 9‑1‑1995 by Additional Sessions Judge, Sheikhupura, in case F.I.R. No.317 of 1993 registered as Police Station, Sadar, Sheikhupura on 28‑5‑1993, under section 17, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 392/394, P.P.C. A Fax message was received from Superintendent, Central Jail, Peshawar, when the appeal came up for hearing on 1‑12‑1997, that Muhammad Saleem lodged in Peshawar Jail, was Muhammad Aslam whose particulars are given above and he was the same person who was appellant in Jail Criminal Appeal No.34/L of 1995. Whereupon office was directed to issue notice to Muhammad Aslam through Superintendent Central Jail, Peshawar for making arrangements for his representation in the appeal filed by him in this Court. This order was passed on 22‑12‑1997. The appeal was ordered to be listed for 10‑2‑1998 and the notice was ordered to be issued for the said date. When the appeal came up for regular hearing on 10‑2‑1998, Reader put up the notice sent to Muhammad Aslam through Superintendent Jail, received back by the office with the report that the Superintendent Jail, Peshawar had served the notice duly. This report was from Superintendent, Federal Shariat Court, Branch Registry, Peshawar. In spite of service, the appellant did not make arrangements for his representation. As he had been duly served it was not considered necessary to issue any other notice. However, the office was directed to appoint a counsel at State expenses to argue the appeal of Muhammad Aslam. The appeal was adjourned to 11‑2‑1998 i.e. for today for arguments. It may be mentioned here that even if the appellant fails to attend or does not appear for any reasons on the date fixed for hearing of appeal, the Court can decide the appeal after examining the merits of the case. Reference in this regard can be made to Muhammad Ashiq Faqir v. The State PLD 1970 SC

177. There is an additional factor also in this appeal on the basis of which the appeal can be decided by appointing a counsel at the State expenses to argue the appeal and that is, that the appellant filed this appeal through jail and the same was to be decided after hearing the counsel appointed at State expenses.

6. It may also be worthwhile, rather important to mention here, that as the appellant of this appeal was not available in spite of efforts for long, the connected Appeals Nos. 16/L of 1995, 39/L of 1995 and 82/L of 1995 filed by Muhammad Asif, Ahmad Ali Pasha and Akhtar Hussain alias Pappu, respectively were decided on 27‑3‑1997, after hearing their counsel and this appeal was kept in waiting for the appellant.

7. The relevant facts for deciding this appeal (filed by Muhammad Aslam) are, that the appellant herein was tried by Additional Sessions Judge, Sheikhupura alongwith Ahmad Ali Pasha, Muhammad Asif and Akhtar alias Pappu in case F.I.R. No.317, registered at Police Station Saddar, Sheikhupura, on 28‑5‑1993 at 11.00 a.m. on the statement of Muhammad Saeed (P.W.2) under section 392, P.P.C. and section 17 of the said Ordinance. Learned Trial Judge vide judgment dated 9‑1‑1995, convicted all of them under sections 392 and 394, P.P.C. and awarded sentences as follows:‑ Under section 392, P. P. C. Seven years R. I. to each plus to pay a fine of Rs.2,000 in default whereof to undergo R.I. for six months each. Under section 394, P. P. C. Each of them was sentenced to undergo R.I. for five years plus to pay a fine of Rs.2,000 each in default whereof to undergo R.I. for six months each.

8. According to F.I.R. Muhammad Saeed used to ply Car No. 1HH 501 as taxi at Gujranwala. Four persons hired his taxi on 27‑5‑1993 at 8‑00 p.m., for going to Sheikhupura. They told him that if they do not leave him at Sheikhupura, he will have to transport them to Lahore to a place near University Campus. A sum of Rs.600 was settled as fare. When they reached near Daar -us‑Sallam, while on way to Sheikhupura, they asked him to turn to Dera Changran, where they reached at 10.30 p.m. There, one of them grabbed him and snatched the key of the car from him. A scuffle took place amongst the accused and Saeed. During which accused gave him blows with the butt of revolver. Thereafter, they chained his legs and snatched a sum of Rs.2,200 and wrist watch from him and threw him in the maize crop and went away in the taxi car. They were all stated to be armed with revolvers. Muhammad Saeed remained lying there till morning. Some milk seller saw him lying there. Muhammad Saeed told him about the occurrence. Thereafter, he proceeded to the police station. He met Riasat Javed, S.I. at Chowk Dhirdey, who recorded his statement Exh. PB.

9. All the four accused including the appellant were arrested by Muhammad Sharif, S.I. on 29‑6‑1993. They were sent to jail for identification parade, which was held under the supervision of Malik Masood Ahmad, M.I.C., P.W.

4. Muhammad Saeed who was called to identify the accused, correctly identified each of them. He gave the narration of the occurrence, as well, while identifying the accused. Muhammad Saeed had been got medically examined. He was found to have suffered eleven injuries which included lacerations, swellings and abrasions. Police during investigation had succeeded in recovering stolen car from Khyber Agency.

10. At the trial statements of seven P.Ws. including Muhammad Saeed complainant, the doctor who had medically examined him, M.I.C. who had supervised the identification parade and Riasat Javed, S.I./I.O. All the accused including the appellant during statements under section 342, Cr.P.C., denied the prosecution case and pleaded innocence. All of them declined to make statements on oath under section 340(2), Cr.P.C. Except Ahmad Ali Pasha who submitted documents in defence none else including the appellant, herein, produced any evidence in defence.

11. As mentioned earlier, the criminal appeals, filed by three co‑convicts of the appellant herein, separately, were decided vide judgment dated 27‑3‑1997. Their convictions under sections 392 and

394. P.P.C. were maintained. However, their sentences of imprisonment under section

394. P.P.C. were reduced to R.I. for four years each while their sentences under section

392. P.P.C. were reduced to three years R.I. each. The sentences of the fine on both the counts were reduced to Rs.1,000 each on each count. The sentences of imprisonment were ordered to run concurrently. Benefit or section 382‑B, Cr.P.C. was extended.

12. Learned counsel appearing for the appellant on being asked failed to make out any distinction in the case of the appellant and the case of the co‑convicts whose appeals stood disposed of. He conceded that the evidence on record, was against the appellant, to the same time, as against the co‑convicts whose convictions were maintained.

13. Apart from the fact that the learned counsel appearing for the appellant have not been able to make out any distinction in the case of the appellant. I have myself also examined the record minutely and I am convinced that the case of the appellant is not distinguishable from the case of his co‑convicts whose convictions were maintained vide judgment dated 27‑3‑1997. The convictions of the appellant, therefore, under sections 392 and 394, P.P.C. are maintained.

14. Since sentences awarded to the co convicts were reduced, the same treatment is being given to the appellant, as his case is at par with their case. The sentence of R.I. for seven years conviction under section 392, P.P.C. is reduced to R.I. for three years, while the sentence of five years awarded under section 394, P.P.C. is reduced to R.I. for four years. The sentences of fine of Rs.2,000 on both counts i.e. 392 and 394 are reduced to Rs.1,000 on each count. On failure to pay the fine the appellant shall suffer R.I. for three months on each count. Benefit of section 382‑B, Cr.P.C. shall be extended.

15. The appellant presently is lodged in Central Jail, Peshawar where, he is stated to be imprisoned in some Arms cases. Office shall intimate the Superintendent Jail about the judgment. A copy of this judgment shall be sent to him. The appellant is on bail. His bail bonds stand cancelled. He shall be caused to be arrested through non‑bailable warrants for being lodged in jail to undergo the remaining sentences. H.B.T./86/FSC Order accordingly.