' AGHA RAFIQ AHMED KHAN, C.J.---Appellants Muhammad Qaisar son of Manzoor and Gul Nawaz alias Goshi son of Muhammad Iqbal have filed Criminal Appeal No,28/I of 2011 and Jail Criminal Appeal No,32/I of 2011, respectively against the judgment dated 19-5-2011 delivered by the learned Additional Sessions Judge-III/Special Judge Abbottabad, whereby the appellants have been convicted under section 392, P.P.C. And sentenced to undergo seven years' rigorous imprisonment each with payment of Rs,50,000, each, as fine or in default thereof to undergo three months simple imprisonment each with benefit of section 382-B, Cr.P.C. Extended to them.
2. Brief facts of the prosecution case as disclosed from the contents of F.I.R. (Exh.PA) registered on 1- 8-2009-at Police Station Donga Gali, District Abbottabad, are that on the same day complainant along with his family members was going to Nathiagali on a pleasure trip, when at about 3-45 p.m.
They reached near Khaira Gali, they stopped their Motorcar No,B-7231 Peshawar. He was sitting on front seat of the car while his son Hamad Fairoz was driving the car. They were about to come out from the car when in the meantime, two boys emerged from front side and asked all of them to sit in the car. They pull out their pistols. One of the boys came to complainant and the other one went back to the ladies and asked all of them to give them whatever they had. The complainant handed over to them his Mobile N-72 along with his purse containing 500 US dollars, Rs,25,000, his service card, NIC, two diplomatic cards, visa cards, ATM Askari Bank card, his driving license and some visiting cards. His son gave them his Mobile N-95 and Rs,5,000. They also snatched two golden rings and one gold locket chain along with Mobile N-81 from his wife and two gold rings from his daughter. Thereafter they directed to go straight and do not look behind. The accused fled away in the forest. They were aged about 20/25 years. He also gave the description of the accused, and stated that they can identify them if brought before them. After arrest of the accused and completion of the investigation, the appellants/accused along with their co-accused were challaned under section 173 of the Code of Criminal Procedure to face trial. They were charged on 22-2-2010, to which they pleaded not guilty and claimed trial.
3. The prosecution to prove its case examined as many as nine witnesses in all. The gist of their evidence is as under:--
(i) P.W.1 is Asif Shahzad MHC Police Station Donga Mali. On receipt of the application, he registered the case vide F.I.R. Exh.PA.
(ii) P.W.2 is Manzal Constable No,67. He is marginal witness to the memo. Exh.P.W.2/1 through which in his presence, the Investigating Officer took into possession a mobile phone 1100 along with sim Exh.P.1 belonging to Mst.Nasreen:
(iii) P.W.3 Muhammad Nawaz constable deposed that in his presence accused Gul Nawaz alias Goshi led the police party to the house of Haq Nawaz and pointed out the article mentioned in the recovery memo. Exh.P.W.3/1, to which he is marginal witness.
(iv) P.W.4 is Brig. Feroz Muhammad complainant. He narrated the same version as mentioned hereinabove.
(v) P.W.5 Hamad Feroz is son of the complainant. He also stated the same facts as narrated by his father Feroz Muhammad complainant.
(vi) P.W.6 is Muhammad Asim Khan, Civil Judge/Judicial Magistrate Abbottabad. He stated that on 3-9-2009 he had conducted the identification parade of the accused in Mansehra Jail and Hamad Feroz son of the complainant correctly identified the accused. He also stated that he has also identified the stolen articles which were given to him on superdari, vide his order dated 5-9-2009.
(vii) P.W.7 Muhammad Nazeer S.H.O./ Sub-Inspector is the Investigating Officer of the present case.
On 1-8-2009 he visited the spot and prepared the site plan Exh.PB on the pointation of the complainant. He also received the list of the mobile phone calls. He further stated that during raid on the house of co-accused Mst. Nasreen for arrest of accused Gul Nawaz accused, he recovered a pistol which was used in the commission of offence. On 19-8-2009 the S.H.O. Arrested the appellants/ accused Gul Nawaz and Muhammad Qaisar. He further deposed that he interrogated the appellants/accused and both the accused made pointation, vide memo. Exh.P.W.7/11. He also stated that the appellant/accused Muhammad Qaisar led to the recovery of Rs,29700, four golden rings, etc. After completion of the investigation he handed over the case file to the S.H.O. For submission of challan against the appellants.
(viii) P.W.8 Muhammad Siddique deposed that he was sitting in Rajgan Exchange Company-B (Pvt.) Limited situated at Raja Bazar Rawalpindi, when a young boy of aged` about 28/32 years came to their shop for exchange of Dollar in Pakistani currency. According to him, his son issued receipt regarding exchange of US currency into Pakistani rupees.
(ix) P.W.9 Zakir Rehman Constable No,636 deposed that in his presence Gul Nawaz alias Goshi and Muhammad Qaisar, appellants/ accused while in handcuffs led the police to the place of occurrence and pointed out the same and pointation memo Exh. P .7/11 was prepared in his presence. On further pointation of the appellant Muhammad Qaisar, the amount of Rs,29700 was recovered which was taken into possession vide recovery memo Exh. P.W. 7/12. The Investigating Officer also took into possession receipt Exh.P.W.9/ 1 in his presence.
(x) P. W.10 is Arif Javeed who was S.H.O. Police Station Donga Gali.
3. After close of the prosecution evidence, the appellants/accused and their co-accused were examined under section 342 of the Code of Criminal Procedure. They denied the allegations of the prosecution and pleaded their innocence. They did not - record their statements on oath as provided under section 340(2) of the Code of Criminal Procedure nor produce any evidence in their defence. However, while responding to Question put to them regarding their identification, both the appellants/accused stated as under:-- "Identification parade was conducted mechanically and at the belated stage without observing the legal formalities. Moreso prior to the identification parade 1 along with co-accused were on many occasions shown to the Hamid Feroz and no independent person was associated with the said. Proceedings. For the same reasons the identification parade does not carry any weight. So far identification of recovered articles is concerned that was also done without observing any legal formalities, neither the stolen articles were mixed with any articles of same nature to make the identification worth while"
5. After hearing the learned counsel for the parties, the learned trial judge convicted and sentenced the appellants/ accused as mentioned in the opening para of this judgment.
6. Mr. Atif Ali Jadoon as well as Mr. Aftab Ahmed Khan, Advocates have argued that due to enmity the appellants have been involved in this case. According to them, the identification parade was not held in accordance with law and there are irregularities committed by the learned Magistrate by not putting the appellants in separate identification parade. Their further contention was that the appellants have been arrested on 19-8-2009 and their identification parade was held on 3-9- 2009, i.e, after 13 days of their arrest. The complainant who is also an eye-witness was not brought before the Magistrate for identification parade. The recoveries from the appellants were also not made in accordance with law. They have relied on (i) 2011 SCMR page 563 (Sabir Ali alias Fauji v.
The State), (ii) 1988 SCMR page 557 (Ghulam Rasul and 3 others v. The State), 2008 PCr.LJ (F.S.C) page 1012 (Ejaz Ali v. The State), (iv) 2010 SCMR page 1189 (Bacha Zeb and Ghulam Jan v. The State) and 2010 YLR page 140 (Tahir Hussain v. The State).'
7. Mr. Muhammad Sharif Janjua, Advocate for State has fully supported the judgment and has submitted that there is no enmity of the appellants with the complainant and his son. They were not even known to them prior to the incident, therefore, question for false implication does not arise. The identification parade was held properly by the Judicial Magistrate and P.W. Hamid Feroz, who is an eye-witness, has correctly identified both the appellants.
8. I have given full consideration to the arguments submitted by the learned counsel and have gone through the entire evidence on record. The F.I.R. Was lodged immediately after the incident by the complainant who was Brigadier in the armed forces at the relevant time. In the F.I.R. Ages as well as physical features of both the appellants were given and it was also stated that they would be able to identify the accused if brought before them. The stolen articles, i.e, Rs,29700, golden rings, etc., vide recovery memo Exh.P.W.7/12 were recovered on the pointation of accused Muhammad Qaisar. Appellant Gul Nawaz alias Goshi also led the police party to the house of his real brother Haq Nawaz and produced 140 U.S. Dollars, one ID Card, one Driving License, Military ID Card, Diplomatic Card, one NTN Card, one Debt Card and one Maker Card, etc. Belonging to complainant Feroz Muhammad. Although the private witnesses have not been associated in the case but out rightly the evidence of the police witnesses cannot be discarded only on the ground that they are police officials unless there are strong reasons to believe that they might have falsely involved the appellants.
9.Appellants Gul Nawaz as well as Muhammad Qaisar were put to identification parade on 3-9- 2009 by the Judicial Magistrate who had . Arranged fifteen dummies of same height and features.
Gul Nawaz alias Goshi was placed at S.No,3 and Muhammad Qaisar at S.No,7. P.W. Hamid Feroz who is also an eye-witness and the victim correctly picked both the appellants out of fifteen persons.
The explanation as given on record is that the complainant was serving as Brigadier in army who had gone to Afghanistan on duty, therefore, could not appear before the Magistrate for the purpose of identification parade. The complainant as well as his son Hamid Feroz and other witnesses were put to lengthy cross-examinations but nothing favourable to the defence came out of them. I do not see any reason to believe that the complainant's son might have involved the appellants falsely at the instance of police as neither the police personnel nor the complainant party had any grudge against the appellants. The snatched articles were also recovered on the pointation of the appellant Gul Nawaz and from the possession of appellant Muhammad Qaisar.
10. The learned trial Judge had fully discussed the evidence on record as well as the defence plea taken by the appellants and have given cogent reasons for arriving to this conclusion that the appellants were found guilty. In their statements under section 342 of the Code of Criminal Procedure, the appellants have merely denied the allegations and have stated that they have been falsely involved in the case. They even did not examine themselves on oath in their defence.
11. Keeping in view the above evidence and the circumstances, I am of the firm opinion that the prosecution had fully proved the charge against the appellants. The minor contradictions and irregularities, if any, in the case would not help the appellants. For these reasons I do not consider it proper to interfere in the findings of the learned trial Court, therefore, both these appeals are without any substances and the same are accordingly dismissed.