2004 PLP 995 (MLD)

This jail criminal appeal by Muhammad Hassan son of Zulfiqar, resident of Uzbak Bazar Sattelite Town, Quetta, is directed against the judgment and order of the learned Additional Sessions Judge‑II, Quetta, dated 6‑4‑1999, whereby he was found guilty under section 392, Pakistan Penal Code, and on conviction sentenced him to ten years rigorous imprisonment and to pay a fine of Rs.35,000 or in default of payment of fine to further undergo simple imprisonment for two years. Abdus Salam, his co‑accused was found guilty of an offence under section 406 Pakistan Penal Code and on conviction sentenced him to three years and to pay a fine of Rs.15,000 or in default of payment of fine to undergo further simple imprisonment for one year. Both the sentences were ordered to run concurrently witty the benefit of section 382‑B, Criminal Procedure Code, extended to them.

2. Briefly stated the facts of the prosecution case are that on 16‑1‑1998 vide F.I.R. No.5 of 1998, the case was registered against the accused on the written application of Mehta Washisher Nath Kohli, Advocate, by Shaban Ali, S.H.O. Police Station Satellite Town, Quetta. He reported that a day earlier, i.e. on 7‑1‑1998 he alongwith his family members had gone to the house of his relatives at Noshki and had left behind his son Faqir Nath Kohli and his two servants namely Muhammad Azim and Abdus Salam to look after the house. They had to return on 16th of January. Faqir Nath Kohli, however at 3‑15 hours left Quetta in a car for Nushki. At about 10‑q0 p.m. he received a telephonic message from Syed Ayaz Zahoor Advocate that some armed persons had entered his house at about 6‑30 p.m. tied his two servants and belibered one of them, and thereafter committed theft of the ornaments and other articles detailed at Serial Nos. 1 to

30. He further stated that may be they have also taken away some other goods of which at that time could not be verified and would be in a position to inform after detail checking. The contents of the application Exh.P./1‑A was correctly incorporated in. F.I.R. No.5 of 1998, by Inspector Shaban Ali, (P.W.5). After registration of the case Shaban Ali P. W. proceeded to the place of occurrence and prepared the site‑plan Exh.P.5‑B. He took into possession a Chaddar, and a Dastar Khwan by which Abdus Salam.and Muhammad Azim accused were tied by the accused, vide recovery memo. Exh.P/2‑A. He recorded the statements of Muhammad Azim and Abdus Salam under section 161, Criminal Procedure Code. He arranged the finger print expert who got the finger prints of the accused detected on various articles, vide Exh.P/2‑B. He also took into possession six receipts pertaining to the stolen ornaments, a licence book vide recovery memo. Exh.P/2‑C produced by the complainant. Muhammad Hassan accused arrested on suspicion was interrogated who disclosed that he alongwith his co‑accused duly armed entered the house of the complainant at about 6‑30 p.m. as the door of the house had been left opened by Abdus Salam. He prepared a disclosure memo. Exh.P/2‑D. Muhammad Hassan accused led the police party to his house and produced the stolen golden ornaments, which were taken into possession vide recovery memo. Exh.P/2‑E. He prepared the site‑plan of the house Exh.P.5‑D. On 4‑2‑1998 Abdus Salam was associated with the investigation who in presence of Ali Madad, S.I. and Iftikhar Rashid, disclosed that he had joint hand with Muhammad Hassan and Ghulam, the absconding accused. He volunteered to produce the golden ornaments which had fallen to his share. The accused then led the police party to his house and from his residential Kotha brought a plastic envelop containing the stolen ornaments hidden in the bedding, which were taken into possession; vide recovery memo. Exh.P.2‑G. As the accused had stated that he had handed over the stolen pistol to Abdul Baqi, therefore, on 7‑2‑1998 on secret information Abdul Baqi accused was arrested from whom .32 bore pistol No.2137 was recovered. The same was taken into possession by the police vide recovery memo. Exh.P.3‑A. Ghulam accused was not available, therefore, warrant of arrest was issued and proclamation made in his case. After completion of the investigation, challan was put in the Court of Additional Sessions Judge‑II, Quetta, against the accused. Ghulam accused was declared a proclaimed offender and proceeding under section 512 Criminal Procedure Code taken up against him.

3. The learned trial Judge framed a formal charge against Muhammad Hassan appellant under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, to which the accused did not plead guilty and claimed trial.

4. After recording the prosecution evidence and examining the accused under section 342, Criminal Procedure Code and statement of the defence witness, found the accused/appellant and Abdus Salam, his co‑accused, guilty of the offences and on conviction sentenced Abdus Salam accused under section 406 Pakistan Penal Code and also under section 392 Pakistan Penal Code, to various terms of imprisonment and fine. Muhammad Hassan, accused/appellant was convicted under section 392 Pakistan Penal Code and sentenced to 10 years rigorous imprisonment and a fine of Rs.35,000, in default of payment of fine to further undergo for two years simple imprisonment. It may be pointed that Abdus Salam filed an appeal against his conviction in the Hon'ble High Court of Balochistan, which was heard by the learned Chief Justice and vide judgment dated 20‑4‑2000, his conviction was maintained, but his sentence was reduced to four years rigorous imprisonment and the sentence of fine was reduced to Rs.10,000 and in default thereof to undergo further six months simple imprisonment. The learned counsel for Muhammad Hassan accused/appellant raised an objection that the Hon'ble High Court of Baluchistan had no jurisdiction to hear the appeal against the order of conviction vide the impugned judgment and that may result in conflicted judgment while hearing the present appeal. There is no force in the contention at this stage as the appeal is to be disposed of on its own merits.

5. As far the case against the accused/appellant is concerned, it was contended by the learned counsel for the appellant that the accused is innocent and had been falsely involved in the case, however, he failed to find out any substantial point for challenging the judgment of the learned trial Court. The learned counsel in a cursory manner challenged the recoveries of the stolen property, on which reliance has been placed by the learned trial Court on the ground that no person from public has been associated with such recoveries. It was further contended that, the accused/appellant was arrested on suspicion and was forced by the Investigating Officer to admit the commission of the offence. That the recoveries were planted on the accused/appellant by the Investigating Officer in order to show his (ﮐﺎﺭﮐﺮﺪﮔﻰ). The learned counsel, however, failed to substantiate the above contention from the record. The prosecution has in support of its case, examined M.W.N. Kohli, who has. given the background of the occurrence and in his report has given the details of the golden ornaments stolen and of the stolen pistol in the dacoity. These golden ornaments were recovered at the instance of the accused/appellant and were taken into possession, vide recovery memo. Exh.P/2‑G in the presence of its marginal witnesses. The complainant produced receipts in respect of some of these ornaments. Ali Madad, S.I. (P.W.2) deposed about the recovery of a Chaddar and a "Dastarkhwan" with which Azeem and Abdus Salam, domestic servants of the complainant were tied up during dacoity. He is also witness to the recovery of seven receipts and photo copy of a licence of the pistol of .32 bore, the case property. He is also witness of the recovery memo. of the ornaments on the pointation of the accused/appellant from a room inside his house. Muhammad Azim, (P.W.4), a domestic servant of the complainant supporting the prosecution case stated that he and Abdus Salam were present in their house. That at about 6‑30 p.m. two persons entered the house armed with pistol and dagger, they tied their hands and feet and beat him and took away the ornaments. He conveyed the information to Syed Ayaz Zahoor, Advocate. He further stated that he identified Muhammad Haqsan is one of the culprits as he was known to him prior to the incident. Shaban Ali, (P.W.5) is the Investigating Officer. He had recovered the stolen ornaments at the instance of the accused which tallied with the description of the ornaments given in the F.I.R. and the receipts produced by the complainant. He also recovered a .32 bore pistol No.2137 from the possession of Abdul Baqi, which was given to him by Abdus Salam accused after the occurrence. The pistol was licensed one. The prosecution witnesses were thoroughly cross‑examined by the learned counsel for Abdus Salam and the accused/appellant, but nothing substantial was brought on record to discredit their credibility. Excepting bare denial, the accused/appellant did not utter a single word about reason of his involvement in the case. Such being the case, no exception could be taken to the finding of the learned trial Judge holding that the prosecution was successful in proving its case against the accused/appellant beyond any reasonable doubt.

6. As far as the sentence imposed upon the accused is concerned, the sentence of Abdus Salam co‑accused has been reduced by the learned High Court from 10 years to 4 years rigorous imprisonment and the fine from Rs.35,000 to Rs.15,000, but in instant case as Muhammad Hassan, accused/appellant has played the major role, therefore, it will meet the ends of justice, if this sentence of imprisonment is reduced from 10 years to 6 years rigorous imprisonment and fine form Rs.35,000 to Rs.15,000, and in default thereof to undergo further simple imprisonment for six months. Accordingly, while maintaining the conviction of the accused/appellant under section 392 Pakistan Penal Code, and dismissing the appeal, his sentence of imprisonment is reduced from 10 years to 6 years rigorous imprisonment and the fine is reduced from Rs.35,000 to Rs.10,000, in default of payment of fine to undergo further six months simple imprisonment. The benefit of section 382‑B, Cr.P.C. is extended to the accused. H.B.T./27/FSC Order accordingly.