' This judgment will dispose of Criminal Appeal No.787 of 1987 filed by Mushtaq Ahmad and Shahzad Masih, appellants who were convicted and sentenced by Judge Special Court constituted under Anti-Terrorism Act, 1997 vide judgment dated 22-12-199w as under:- 10 years R.I. With a fine of Rs.20,000 in default two years' R.I. Under section 457, P.P.C. And 10 years' R.I. With further direction to pay fine of Rs.20,000 in default 2 years' R.I. Under section 392, P.P.C.
' The benefit of section 382-B, Cr.P.C. Was however, granted to the appellants. Both the accused were acquitted under sections 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance.
And 411, P.P.C. Criminal Appeal No.30 of 1998 filed by the State for conviction of appellants/convicts in the above sections shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that on the night between 2nd and 3rd of September, 1997, Muhammad Anwer, the complainant alongwith his wife Parveen Bibi and their children were sleeping in a room of their house when at about 12-30 midnight two unknown persons, one armed with a rifle and other with iron rod entered there. The person armed with rifle made Muhammad Anwar and his wife to walk into another room of their house and there both the accused committed Zina-bil-Jabar with Parveen Bibi and thereafter .Looted certain household articles including TV, electric iron, wall clock, ceiling fan, dinner set, lady wrist watch etc., and cash amount of Rs.1,000 and ran away . Before leaving they had administered oath to the complainant and his wife not to disclose this incident to Police or neighbours.
3. Investigation of the case was taken over by Muhammad Amin, Inspector (P.W.14). He visited the spot, prepared rough site-plan Exh.P.N., arrested both the accused on 7-9-1997 and sent them to judicial lock-up on the following day. On 10-9-1997, Muhammad Anwer and his wife Parveen identified both the accused in the identification parade held in Sialkot Jail by Nadeem Sarwar, Magistrate (P.W.15). Thereafter, the Investigating Officer obtained the personal remand of the accused on 13-9-1997. Mushtaq Ahmad while in custody led to the recovery of stolen article such TV, ceiling fan, Pressure. Cooker etc., which were secured vide recovery memo. Exh.P.L. Both the accused were medically examined on 14-9-1997. Shahzad Masih also got recovered wall clock, electric iron and other articles which were taken into possession vide memo. Exh.P.H. The recovered articles were identified by Muhammad Anwar, the complainant and Mst. Parveen, his wife in the Police Station. On 17-9-1997 Mushtaq got recovered rifle P.9 which_ was secured vide memo.
Exh.P.K. The investigation was also verified by Muhammad Munir Ahmad, DSP (P.W.10). After completion of the investigation, both the accused were challaned to face the trial
4. At the trial, prosecution in order to prove its case produced 15 P.Ws. In all. Thereafter, the learned S.P.P. Tendered in evidence report of the Chemical Examiner Exh.P.Q. And closed the prosecution case.
' Then statements of the accused were recorded under section 342,Cr.P.C. In which they pleaded innocence. After conclusion of the trial, both the accused were convicted and sentenced as stated above.
5. Learned counsel for the appellants after having read the prosecution evidence and other material available on the record submits that the occurrence had taken place in betweenthe night of 2nd and 3rd of September, 1997 while the matter was reported to the police on 6-94997. Further submits that the appellants shave been made scapegoat in this case by the Police to show their efficiency to higher officers. Adds that no description of the appellants was, given in the F.I.R., recoveries have been planted, the allegation of Zina on the person of Mst. Parveen was not mentioned in the F.I.R. And moreover she was a married lady, there was ,no mark of violence on her body, no witness from the surrounding houses was produced by the prosecution, the identification parade was not held in accordance with High Court Rules. And Orders on the subject, the appellants were shown to the eyewitnesses before the identification parade, evidence of video cassette was not relied upon by the trial Court and that the prosecution has miserably failed to prove its case against the appellants and the appellants are entitled to acquittal.
6. Learned A.A.-G. Assisted by the learned counsel for the State submits that there is sufficient evidence on record througti Muhammad Anwar, the complainant and his wife' Mst. Parveen to prove the case against the appellants coupled with identification in the identification parade and the recovery of articles. He submits that the prosecution has been successful in proving its case against the appellants.
7. I have heard learned counsel for the parties and have gone through the record. The appellants have, been convicted by the Trial Court under sections, 392 and 457, P.P.C. But were acquitted under section 411, P.P.C. And section 10(4) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 for the reason that the act of commission of Zina on the person of Parveen was not mentioned in the F.I.R. Nor in her statement under section 161, Cr.P.C. The explanation given .Was that due to disgrace, Mst. Parveen and Muhammad Anwar did not mention this fact and moreover the accused after having committed Zina-bil-Jabar had forced Muhammad Anwer and Mst.
Parveen to take' oath on Holy Quran not to disclose this fact to the Police. As the fact of Zina was neither mentioned in the F.I.R. Nor in the statement under section 161, Cr.P.C., so the trial Court was right in granting benefit of doubt and acquitting the appellants for that offence. As far as offence under sections 392 and 457, P.P.C. Is concerned that has been proved bythe prosecution beyond any shadow of doubt. The occurrence had taken place inside the house of Muhammad Anwer, complainant where the accused appellants by extending threats looted the household articles lying in the house and those articles were recovered after arrest of the appellants and were identified by the complainant party. Both the eyewitnesses namely Muhammad Anwer and Mst.
Parveen being inmates of the house are natural witnesses. There was no previous background of enmity between the parties so there was no question of false implication. So far as delay in the F.I.R.
Is concerned, that has taken place due to the fact that some time the Police do not register the case and some time the people are reluctant to go to the Police Station because they are not meted out the proper treatment at the hands of the Police. Both the accused were identified during the identification parade held 8 days after the occurrence. Such type of heinous offences are on peak and the people even while sleeping in their houses do not feel safe and such type of offences are to be curbed with iron hand.
' Taking into consideration the over all facts and circumstances of this case and after having examined. The.Entire prosecution evidence. I am of the considered opinion that the prosecution has been successful in proving its case against the appellants to its hilt. Resultantly, the appeal filed by the convict appellants is dismissed, conviction and sentence recorded against them by the trial Court is maintained. However, the benefit of section 382-B, Cr.P.C. Shall remain available to the appellants.
' Criminal Appeal No.30 of 1998 filed by the State against acquittal of the convict appellants is dismissed.