' JUSTICE ABDUL HAMEED DOGAR (CHAIRMAN).--- This appeal with leave of this Court is directed against judgment, dated 27-2-2002 of the learned Federal Shariat Court, Camp at Lahore, whereby Criminal Appeals Nos.319-L, 21-L and 22-L of 2001 filed by the appellants were dismissed while reducing their sentence under section 458, P.P.C. To six years and under section 395, P.P.C. To seven years with fine.
2. Briefly, stated the facts, according to the prosecution are that Muhammad Zahid complainant had taken Siddique Corporation Oil Mills on lease from Mst. Farhat Begum. He also kept an iron safe in the Mills in which cash, prize bonds and ornaments had been placed. On 22-10-1996 at about 8- 00 p.m. The complainant left for home after locking the safe while leaving Muhammad Taj and Muhammad Yousaf, Labour Contractor P.Ws. For looking after the Mills. Besides them, 11/12 other persons were present there who were working there. At about 4-15 a.m. Muhammad Yousaf Contractor informed him on telephone that five persons one of them aged 20/25 years holding rifle, second aged 18/20 years having Khanjar, two other persons armed with pistols and one person armed with an iron rod by scaling over the wall had entered in the Mills. Out of them three entered in the office and threatened Muhammad Yousaf and Muhammad Taj P.Ws. Not to raise noise and hand over keys of the safe to them otherwise they will be done to death. They told them that the owner had taken the keys with him, on which they had broken the iron safe and removed prize bonds, ornaments and cash and ran away by scaling over the wall. Complainant came to the Mills and found that a sum of Rs,9,60,000 in cash prize bonds of Rs,1,000 denomination worth Rs,8,30,000 and ornaments weighing 20 Tolas, valuing Rs,1,10,000 were missing.
3. On 2-1-1997 petitioners along with their, namely, co-accused were arrested. On 9-1-1997 during interrogation, petitioner Abdul Razzaq got recovered a sum of Rs,1,21,000 which were taken into possession. On 15-1-1997 he also led to the recovery of pistol along with two bullets from a room of his house. On 9-1-1997 petitioner Muzammal got recovered a sum of Rs,25,000 from a room of his house.
4. Charge under sections 458/148/149, P.P.C. And section 17, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was framed against the petitioners and their co- accused to which they pleaded not guilty and claimed trial.
5. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against them produced 15 witnesses in all.
6. In their statements recorded under section 342, Cr.P.C. Petitioners and their co-accused denied the case of prosecution and claimed innocence. However, they neither examined themselves on oath as required under section 340(2), Cr.P.C. Nor led any evidence in defence.
7. The learned trial Court vide judgment, dated 29-9-2001 acquitted Ali Asghar, Abdul Shakoor and Abdul. Ghafoor while petitioners and their co-accused Arshad alias Achian, Muhammad Riaz alias Raju and Shahid alias Shada were convicted and sentenced as under:--
(i) Under section 458, P.P.C. Each was sentenced to undergo R.I. For seven Years plus to pay a fine of Rs,10,000 in default whereof to undergo S.I. For one year.
(ii)Under section 395, P.P.C. Each was sentenced to undergo R.I. For 8 years Plus to pay a fine of Rs,50,000 each, in default whereof to undergo S.I. For 1-1/2 years.
8. On appeal, the learned Federal Shariat Court vide impugned judgment while acquitting co- accused Shahid alias Shada, Riaz alias. Raju and Arshad alias Achian from the charges reduced the substantive sentence of both petitioners under section 395, P.P.C. From eight years to seven years' R.I. Each with fine of Rs,30,000 each and under section 458, P.P.C. From seven years to six years each. However, sentence of fine was maintained.
9. Leave to appeal was granted for reappraisal of the circumstantial IA evidence on which the conviction of the petitioners rests. The petitioners were not put to identification parade like their acquitted co-accused and P.W. Muhammad Saleem, who had seen the petitioner Muzammal near the place of occurrence armed with a pistol and the petitioner Abdul Razzaq landing in the street by scaling over the wall of the Factory has not been believed qua the acquitted accused Arshad.
Besides, implicit reliance has been placed on the incriminating recoveries, namely, pistol which was not used and some currency notes which apparently do not bear any specific mark of identification.
10. We have gone through the impugned judgments of both the Courts below and do not find any misreading or non-reading of evidence. The case of the appellants is distinguishable with the case of acquitted accused Ali Asghar, Abdul Shakoor, Abdul Ghafoor. Shahid alias Shada, Arshad alias Achian and Muhammad Riaz alias Raju as they were neither put in identification test nor any looted property was recovered from them whereas there is sufficient evidence against the petitioners furnished by P.W. Muhammad Saleem. According to him, appellant Muzammal was seen near the place of occurrence armed with pistol whereas Abdul Razzaq was nominated by complainant and also that he was one of those persons who were seen landing in the street by scaling over the wall of the factory. Irrespective of above, the looted property worth substantial value was also recovered from them.
11. Above all, the petitioners have failed to bring on record any animosity about their false implication either on the part of complainant C or the witnesses. Even the petitioners did not furnish any convincing and cogent explanation for their implication in the case.
12. For what has been discussed above, we are of the considered opinion that the impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither, there is any misreading or non-reading of material evidence nor misconstruction of facts and law. Resultantly, the appeal being devoid of force is dismissed.