' ABDUL RASOOL MEMON, J.---Appellants namely (1) Abdul Sattar son of Muhammad Khan, (2)
Shahzad son of Ghulam Mustafa, (3) Agha Nasir alias Agha son of Habib Jan, (4) Muhammad Shoaib Khan alias Shobi son of Ghulam Rasool (5) Nauman son of Khalid Hussain and (6)
Muhammad Kashif son of Abdul Majeed were tried by the IInd Additional Sessions Judge Karachi South under sections 395, 392, 512 and 34, P.P.C. For having committed robbery of Gold and Cash from the factory (Karkhana) of Goldsmith Muhammad Munir (the complainant) on 7-1-2010 at 0830 hours and were convicted and sentence as under:-- ' Appellant Abdul Sattar to undergo' R.I. For 10 years and fine of Rs,500,000 under section 412, P.P.C.
And in default to pay fine to suffer R.I. For one year more.
(ii) Other appellants to undergo' R.I. For 10 years, pay fine of Rs,500,000 each under section 395, P.P.C. And in case of default to suffer further R.I. For one year more.
' They were extended the benefit of section 382-B, Cr.P.C.
2. The prosecution case is that on 7-1-2010 at 9.15 a.m. Complainant Muhammad Munir (a goldsmith) received information from his Manager Sohail on telephone regarding robbery committed in his Karkhana situated at Plot No,NP-2/5 Karachi which remains open round the clock.
He immediately reached at the spot and on inquiry learnt from his workers that at about 8.30 a.m.
Four (4) persons, of whom two seemed to be Pathan and others Punjabi, entered into the Karkhana, showing weapons confined them, took keys of two safes from Manager Sohail and looted gold and cash from the same. The complainant lodged with the police his report the same day at 2030 hours giving detail of looted property which according to him comprised 6 Kgs. Acid Gold 5 Kgs.
And 800 grams of gold in wire shape, 3 Kgs. And 300 grams gold (incomplete jewelry wherein most of the quantity of the gold was of the clients for manufacture, under trust) and cash amounting to Rs,525,000. He stated that dacoits could be identified on being seen by his Chowkidars namely Muhammad Tahir and other workers whose names he would give later.
3. After completion of investigation during which statements of witnesses were recorded, all the six appellants, were arrested of whom four namely Agha Nasir, Shahzad, Kashif and Shoaib were put on identification, looted property was recovered, however, later released by police to the complainant and the appellants were challaned. The trial Court examined as much as 10 P.Ws. And recorded statements of appellants under section 342, Cr.P.C. Except appellant Abdul Sattar who examined two witnesses in defence, none of other appellants examined any witness. None of appellants put them in witness box to be examined under section 340(2), Cr.P.C. Then, having heard both sides learned trial Court convicted and sentenced the appellants as afore-stated vide Judgment dated 28-2-2012 impugned herein by way of above noted appeals.
4. Learned counsel for the appellants Mr. Syed Lal Hussain appearing for accused Abdul Sattar, Shahzad and Agha Nasir, has assailed the impugned judgment on the following grounds:--
(a) There is delay in lodging the F.I.R., which adversely affects prosecution case.
(b) Names of P.Ws. Nawaz and Noor Ali are not mentioned in the F.I.R. And they appear to be procured witnesses.
(c) The Identification Parade through eye-witnesses namely Noor Ali and Nawaz loses its worth and value since before conducting identification test parade witnesses were enabled to see the appellants who were identified without attributing to each of them specific role.
(d) That mashirs of recovery are police officials and compliance of section 103, Cr.P.C. Not made.
(e) The case property was delivered incompetently to the complainant during course of investigation without approval of the court.
(f) As per prosecution only 4 culprits had robbed the property, therefore, provision of section 395, P.P.C. Is not applicable hence conviction and sentence under that section is not warranted entitling the appellants to acquittal.
(g) No evidence has been brought that appellant Abdul Sattar who was indicted in the case for having possessed the robbed property was in conscious knowledge of offence and dghonestly keeping the same at his house.
' Learned counsel for the appellants has relied on the cases of Makkhan and others v. Emperor (AIR
(32) 1945 ALLAHABAD 81, MUHAMMAD HAYAT v. SABIR SULTAN, ADDITIONAL SESSIONS JUDGE and others (2004 PCr.LJ 397), SHAH JAHAN v. THE STATE and another (2005 PCr.LJ 489), MUHAMMAD YASIN and another v. ADDITIONAL SESSIONS JUDGE, OKARA and 2 others (2007 PCr.LJ 799), MUMTAZ ALI and another v. THE STATE (2000 PCr.LJ 367), MUBEEN v. THE STATE (2006 YLR 359), Syed ARSHAD ALI SHAH BUKHARI v. THE STATE and others (2011 SCMR 1644), SHAFI MUHAMMAD v. THE STATE (PLD 1971 Karachi 721,), MUHAMMAD YAQOOB and another v. THE STATE (1989 PCr.LJ 2227), ATTAULLAH and others v. THE STATE (2006 MLD 896), NAZIR AHMAD v. MUHAMMAD IQBAL and another 2011 SCMR 527, THE STATE v. GHULAM RASOOL (2007 SCMR 1944), TAHIR HUSSAIN v. THE STATE 2010 YLR 140(DB), ILTAF 'HUSSAIN v. THE STATE (1996 SCMR 167), MUHAMMAD SAJJAD v. THE STATE (2009 SCMR 1248), MURSAL KAZMI alias QAMAR SHAH v. THE STATE (2009 SCMR 1410), NABEELA BIBI v. THE STATE (2005 PCr.LJ 1472); SAJJAD HUSSAIN and another v. STATE (PLJ 2009 FSC 242) NOOR HUSSAIN v. THE STATE (1996 PCr.LJ 181), KANDHLA (KANDLA) v. THE 'STATE (1983 PCr.LJ 1869), EJAZ ALI v. THE .STATE (2008 PCr.LJ 1012), MUHAMM4D AKRAM v. THE STATE (2009 SCMR 230), MUMTAZ AHMAD alias MUMTAZ ALI v. THE STATE (1974 PCr.LJ 137) and MUHAMMAD YASIN and 2 others v. THE STATE (PLD 2003 Lahore 425).
5. Mr. Akhtar Shad, learned counsel for the appellants Muhammad Shoaib, Noman and Muhammad Kashif, in his arguments has taken similar grounds.
6. Mr. Abdul Rehman Kolachi, learned A.P.-G. Has contended that delay has been properly explained, however, so far as ground (b) noted above is concerned, he states that complainant in his F.I.R. Clearly stated that he would disclose the names of remaining witnesses/workers in factory which he later did during investigation and as far holding of identification parade, he contends that primarily identification of culprits is not a legal requirement but is resorted to secure a corroborative material as a matter of prudence. He contends that the statements of witnesses in court fully involved, the appellants, the same inspire confidence on all material particulars and there is nothing in evidence that witnesses deposed falsely, hence irregularities pointed by the learned counsel are inconsequential in nature.
7. For compliance of section 103 Cr.P.C., Learned A.P.-G. Replied that recovery from the appellants Kashif, Agha Nasir and Shahzad was made at the road side while Noman and Shoaib led the police party and on their indication the recovery was made, therefore, section 103, Cr.P.C. In such circumstances could not be said to have been violated. He has conceded that ingredients of Dacoity were not attracted in this case, that against appellants, it is a case of Robbery and keeping in possession the property so robbed of. Learned A.P.-G. goes on to contend that recovery was made from the house of the appellant Abdul Sattar on the pointing by Agha Nasir, therefore, he is equally responsible for the said recovery. He contends further that the irregularity committed on the part of Investigation Officer by delivering the case property to the complainant without the orders of court does not seem to be dishonest, therefore, could not destory direct, testimony honestly given by the witnesses. Learned A.P.-G. Has relied on the cased of ABDUR REHMAN MUBARAK v. THE STATE (2000 PCr.LJ 907), MUHAMMAD BASHARAT v. THE STATE (2003 SCMR 554), MUHAMMAD KHAN v. THE STATE (1994 SCMR 1543), MUHAMMAD ARIF v. THE STATE (1999 MLD 1321), ZARDAR v. THE STATE (1991 SCMR 458), MUHAMMAD MUSHTAQ v. THE STATE PLD 2001 SC 107, YOUSAF v. THE STATE and another (2000 PCr.LJ 1386) and ABDUL RAZZAK alias ZAKA v.
THE STATE (2003 SCMR 1419).
8. I have given careful consideration to the arguments of learned counsel for appellants, learned A.P.-G. And have gone through the relevant record.
9. It is not incorrectly argued that the F.I.R. Was lodged with delay and that names of witnesses are not mentioned in- the F.I.R. However, it is well-settled that the delay alone is not considered sufficient ipso facto to disbelieve the prosecution case nonethless such delay on its face value requires close scrutiny of the incriminating evidence available on record to avoid false involvement of the accused. Reliance is placed on PLD 2001 SC 107. So far as non-mentioning of the names of P.Ws. Nawaz and Noor Ali in the F.I.R. Is concerned, the complainant in his F.I.R. Had clearly mentioned that names of the workers/ witnesses would be given by him later and he did so by way of separate statement before the Investigating Officer. The consistency in evidence of the complainant Munir and P.Ws. Muhammad Nawaz and Noor indicates availability of these P.Ws. In the Karkhana (place of incident) at the time of alleged occurrence. Both of these witnesses have made their statements in clear terms giving detail of occurrence as eye-witnesses. They identified appellants Agha Nasir, Shahzad and Kashif in identification parade as culprits. On the part of appellants, there was no suggestion in cross-examination of these two witnesses that they were not available at the time of occurrence or they were procured to give testimony. Be that as it may, non-mentioning the names of witnesses in the F.I.R. Would not affect the reliability of the witnesses because' in a case of heinous crime like the one in this case the complainant may omit name of any witness particularly where there was a huge gathering available either before or after commission of the offence. On this, reliance is placed on case of Muhammad Mushtaq v. The State (PLD 2001 SC 107) and Muhammad Basharat v. The State (2003 SCMR 554). In the last mentioned case, it is held that the testimony of witnesses cannot be believed or disbelieved simply that his name appears or does not appear in the F.I.R. But real test is intrinsic value of the testimony. It is also not disputed that many workers were working in the factory/karkhana of the complainant at the time of occurrence and that after incident many persons gathered at the place of wardat in such situation the complainant could not be expected to remember names of all his workers including eye-witness P.Ws. At that moment, therefore, this objection of learned counsel for the appellant is devoid of force.
10. Adverting to identification through eye-witnesses, it is the case of the prosecution that the P.Ws.
Muhammad Nawaz and Noor Ali Khan identified appellants Agha Nasir, Kashif and Shahzad during identification parade before the Magistrate Sardar Din. P.W. Muhammad Nawaz having given detail of incident has stated in unambiguous terms that, "All the three accused persons who were identified by me are present in the court and produced memos of identification parade (Exh.11/A, 11/B and 11/D containing names of Agha Nasir, Shahzad and Kashif as to the identification by him (P. W Nawaz)".
11. Similar is the statement of P.W. Noor Ali Khan, who went on to state further in his testimony that, "he pointed out correctly the accused (appellants) Agha Nasir, accused Shahzad and Kashif". Both the P.Ws. Were subjected to lengthy cross-examination but they remained consistent on all material particulars of the prosecution case. Nothing was suggested to them in their cross- examination that they deposed falsely on account of some enmity with the appellant. Admittedly it was daylight occurrence and the culprits remained 40 minutes with them to complete their mission and these two witnesses had close proximity to remember them so as to identify them later. The record further shows that the Magistrate Sardar Din Bohio (P.W.9) who supervised the identification parade also stated in his evidence that four appellants namely Agha Nasir, Shahzad, Kashif and Shoaib were produced for identification, however out of these four appellants only three namely Agha Nasir, Shahzad and Kashif were identified by eye-witnesses Muhammad Nawaz .And Noor Ali Khan whereas appellant Shoaib was not identified. In memos of identification parade viz Exhs. 11/B and 11/D, the Magistrate, however noted that the accused (appellants) Muhammad Kashif and Shahzad raised objection saying that at the time of arrest and afterwards the witnesses had seen them. On this, there is pertinent observation in a case of Ghazanfar Ali alias Pappu v. The State (2012 SCMR 215) holding that "this is the usual defence plea an accused takes to challenge the veracity of the identification parade but when such a plea is taken, the Court has to examine whether it is bona fide; whether there is any other material circumstance to support it and whether the testimony of the witnesses who identified the accused inspires confidence and is corroborated by other evidence." In the instant case too, the above mentioned objection raised by appellants Muhammad Kashif and Shahzad remained mere allegation since the same was not supported by any material on record. Had the intention of the witnesses been to implicate the appellants falsely they would have identified the appellant Shoaib who was produced along with appellants Agha Nasir, Kashif and Shahzad in identification parade. Both these witnesses did not identify appellant Shoaib. Moreover the appellants while making (sic) he stated allegation in their statement did not specify the time, date and place, where they were shown to the witnesses. Be that as it may, the statement of the witnesses qua the identity of an accused in court such as in this case inspire confidence when the witnesses are consistent on all material points and there is nothing to suggest that they depose falsely due to enmity. On this reliance is also placed on case of Ghazanfar (supra). Thus considering the point in the light of afore-mentioned discussion for the appellant on identification parade carries no weight.
12. As to the ground taken by learned counsel for the appellant that the witnesses and mashirs of recovery of the alleged looted articles were police officials namely the Investigating Officer P.W.
Aijaz, P.Ws. Syed Ghous Alam SIP and Ahmed Khan HC and that no person from the public was taken as mashir therefore, violation of section 103, Cr.P.C. Reflecting adversely on the factum of recovery, occurred. It may be stated that in the instant case one set of recovery was made from appellant Agha Nasir, Kashif and Shahzad took place at bus stand on road side and it is well- settled that in case recovery is made on Highway or roadside, section 103 Cr.P.C. Would not apply. It is well settled that recovery is made on Highway or roadside, provision of section 103 Cr.P.C. Would not apply. Reliance is placed on case reported as State v. Muhammad Amin (1999 SBLR 1367). The other recovery of looted gold was made on pointing of appellants Nauman, Shoaib, Agha Nasir and Shahzad who led the police party and produced the looted properties from their houses.
Association of two respectable inhabitants of the locality was not required in this case of recovery as well where accused himself led the police to a particular place and had got articles recovered in true spirit of Article 40 of Qanun-e-Shahadat, 1984. Reliance is placed on a case of Yousuf v. The State (2000 PCr.LJ 1346). Moreover, police personnel are as good witnesses as any other persons.
When their evidence does not suffer from any legal or factual infirmity, the same could be accepted. On this, reliance is placed on a case of Muhammad Khan v. The State (1994 SCMR 1543).
13. On the point that the property was delivered to the complainant without orders of the court. I have observed the case property was being produced complainant on several dates of hearing while testimony of witnesses was recorded during trial, but there was no suggestion made on the part of appellants in cross-examination of witnesses that the case property was substituted or planted by the complainant or police. It was also not suggested to the witnesses that the case property was not the looted one. The property was not claimed by the appellants to be their. Also there is no allegation with supportive material that the investigation was dishonest, therefore, to presume mala fides or ulterior motive on the part of police and hold that prosecution story as to recovery was tailored. In such a situation procedural defects or irregularities and even illegalities in the course of investigation would not demolish the case of the prosecution. Reliance is placed on case of Ashraf Khan Tareen v. The State (1995 PCr.LJ 1313) decided by Division Bench of Peshawar High Court. Thus in view of above discussion the ground taken by learned counsel loses its value and worth.
14. Coming to ground taken on behalf of appellants that prosecution case has been that only 4 culprits had robbed the property, therefore, conviction and sentence under section 395, P.P.C. Was not warranted, I feel it appropriate to first refer to the relevant evidence coming on record through the complainant Munir and eyewitnesses Muhammad Nawaz and Noor Ali Khan. The complainant Munir Ahmed in his evidence deposed that on 7-1-2010 at that time I was in my house where I received phone of Sohail from the mobile of Nawaz at about 9-15 a.m. Who narrated the whole facts of present case. On that 1 went at factory within 20 minutes I reached there and saw so many persons were gathered there and thereafter 1 went at first floor of factory, where my 8 workers informed that four dacoits armed with deadly weapons looted gold 15 Kilo 100 gram from two safe and in one room from manufacturing the ornaments. And also cash Rs,515,000 and silver copper". P.Ws. Noor Ali Khan and Muhammad Nawaz, both workers/ ch6wkidar and eye-witness in the factory have in their deposition supported the complainant on these facts. P.W. Muhammad Nawaz in his evidence has stated that "At about 8.30 we heard the bell of main gate and I saw from gallery that Chowkidar Tahir was standing at main gate on that I threw the keys of main gate on ground floor and, after some time four culprits dackoos came at first floor with Chowkidar Tahir they were armed with pistols and at that time Chowkidar Tahir was caught hold the culprits dackoos and as above culprits saw me". (Underlining is of mine) P.W. Noor Ali Khan while giving the details of incident has stated in evidence that "I can identify person who caught hold him and number of dacoits were four". Thus, all the three witnesses are unanimous that the number of culprits committing. J offence in the Karkhana was four.
15. Therefore, the question for determination shall be whether a case of dacoity against the appellants, as held by trial Court, was made out and they were accordingly sentenced. However, before such determination is made, it shall be appropriate to refer to the provision of law relevant to dacoity viz. Sections 391 and 395 P.P.C. To help understand if the said provision of law is attracted against the appellants. Sections 391 and 395, P.P.C. Read as under:--
391. Dacoity. When five or more persons conjointly commit or attempt to commit a robbery, or where whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding is said to commit "dacoity".
395. Punishment of dacoity.--Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which shall not be less than four years nor more than ten years and shall also be liable to fine.
16. Reading of above provision of law shows that an offence of dacoity shall be considered to have taken place when five or more persons conjointly commit or attempt to commit a robbery; or where whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt amount to five or more, every person so committing, attempting or aiding is said to commit dacoity. In the instant case, P.Ws. Muhammad Nawaz and Noor Ali Khan, both workers/chowkidars in the factory where the offence took place, have been examined as eye-witnesses. P.W. Muhammad Nawaz and Noor Ali Khan, whose relevant testimony has been reproduced hereinabove, have categorically stated that four culprits had committed the offence in the factory. They have not stated that there was any other culprit present who aided the four culprits in commission of offence of robbing in or outside the Factory in any manner and mode. The complainant Munir has also not stated in his testimony if the number of culprits was more than four persons. Therefore, I am of considered view that neither any case of dacoity falling within terms of section 391, P.P.C. Was made out nor the punishment provided by section 395, P.P.C. Could be inflicted upon any of appellant. And I feel no hesitation to agree with learned counsel for appellants that conviction and sentence (awarded to the appellants) under section 395, P.P.C. Was not warranted. But that does not mean that the appellants convicted and sentenced under section 395, P.P.C. Shall, if otherwise found guilty or the wrong done by any of them on the basis of evidence coming on record to be referred to hereafter, be considered wholly absolved on misapplication of a provision of law. Thus, before adverting to the other grounds taken by learned counsel for appellants, I consider it pertinent to refer to the relevant material. It is evident from record that the names of culprits were not given in the F.I.R. Rightly so because nothing came on record that they were known to the witnesses prior to the commission of offence.
The appellants were, later arrested so the case property was recovered. In that process, four appellants Agha Nasir, Shahzad, Kashif and Shoaib were put to identification by eye-witnesses Muhammad Nawaz and Noor Ali Khan, who, except appellant Shoaib identified the other three appellants. The relevant testimony of eyewitnesses Muhammad Nawaz and Noor Ali Khan on identification of these appellants has already been discussed in the foregoing paragraphs and found to be believable against the afore-mentioned three appellants connecting them with commission of crime beyond shadow of doubt.
17. Coming to the other piece of evidence viz recovery of robbed property which found favour with learned trial Court, it may be stated that recovery was made from appellants Nauman, Shoaib on 12-1-2010 whereas from Agha Nasir, Kashif and Shahzad, recovery was made on 21-1-2010. On this point, prosecution examined Investigating Officer P.W. Aijaz Ahmed SIP (Exh.,18), Mashir.P.W. Sayed Alam SIP (Exh.13) and P.W. Ahmed Khan H.C. (Exh.14). According to P.W. Aijaz Ahmed, appellants Nauman and Shoaib were arrested on 12-1-2010 after an encounter and before him during interrogation, both confessed, to have taken part in commission of crime in this Case, he took both of them and first "he went at the house of accused Noman house situated Sherwani Building Jublee and accused took the robbed gold from iron box which was lying in room of his house that gold was weighed and comes 224 grams and some silver was also took from the same box and weight of silver was 268 grams and I prepared memo of seizure.Of robbed gold in presence of mashirs HC Ahmed Khan and A.S.-I. Muhammad Nasir. Thereafter, we took the accused Shoaib and reached at the house of accused Shoaib situated Hina. Terrace 4th floor at about 1-45 p.m.
He took shopper from drawer of bed and handed over to me which contained gold Nath weight of which comes, 415 grams, prepared memo of seizure of robbed gold in presence of same mashir."
Mashir P.W. Ahmed Khan has, supported on this point, the Investigating Officer/Recovery Officer on all material particulars. As regards recovery of robbed property from appellants Agha Nasir, Shahzad and Kashif the Investigating Officer/Recovery Officer P.W. Aijaz Ahmed stated in his evidence that the afore-named culprits were arrested by him on 21-1-2010 on spy information.
' This witness stated that 'first of all I took personal search of bag of accused Agha Nasir and recovered gold wrapped in under-wear and that weight was of gold 980 grams in shape of wire, huks of chane and from another, shopper of accused Agha Nasir 768 grams gold also recovered in shape of wire, huks of chane and further from search, I recovered Rs,2000 from Agha Nasir, mobile phone and also one visiting card of Attaullah Niazi Manager Imran Electronic and thereafter, I conducted personal search of accused Kashif who was holding one bag and I recovered one shopper from his bag containing gold 1200 something grams and further from his search, 4 railway tickets of Karakaram train from Karachi to Lahore of 7-1-2010 in the name of Shahzad and family. I also recovered Nokia Mobile phone and also cash Rs,1410." And then from appellant Shahzad, "he recovered gold 1200 something grams and another silver and copper and further from personal search nokia mobile and Rs,1200 went on to state further that "accused Shehzad disclosed regarding further gold lying in his house. It was 7-00 p.m. He took the accused Shahzad along with police party and went to his house situated at Hassan Lashkari village Dhobi Goth and accused Shahzad broughtia shopper lying under the mattress of bed and I found it was gold and it weight was conducted which comes 700 something grams." P.W. Ghous Alam, SIP who acted as mashir of recovery has on this point, supported the Investigating Officer/ Recovery Officer on all material particulars. It shall be noteworthy to mention here that according to I.O. P.W. Aijaz Ahmed, appellant Agha Nasir had disclosed to him (Aijaz Ahmed) that some other robbed property coming to his share was available in the house of appellant ' Abdul Sattar SIP who happened to be his brother-in-law and that he (Agha Nasir) could get that robbed property recovered. This portion of recovery, subsequently made shall be discussed separately hereafter.
18. Now reverting to the remaining ground taken by learned counsel for appellants that no evidence was brought against appellant Abdul Sattar to have had conscious knowledge of offence of robbery and keeping the robbed property dishonestly at his house, it shall be pertinent to look at the relevant evidence. Prosecution examined Investigating Officer/ Recovery Officer P.W. Aijaz Ahmed and mashir P.W., Gous Alam SIP on this point. P.W. Aijaz Ahmed deposed that on disclosure of appellant Agha Nasir that some robbed property was kept at the house of appellant Abdul Sattar, his brother-in-law and that he (Agha Nasir) could get the same recovered, he (P.W. Aijaz) reached Napier police station along with appellant Agha Nasir and his subordinate staff where police quarters were situated and knocked the door of Quarter No,12, Block No,11 when the, door was opened by appellant Abdul Sattar S.I., they "entered in the quarter from where accused Agha Nasir brought shopper from iron box and shopper contained gold. The weight of that gold was 1700 something grams". Whereafter he arrested S.-I. Abdul Sattar under section 412, P.P.C. P.W. Ghous Alam who acted as mashir of this recovery has supported the Investigating Officer/ Recovery Officer by making similar statement. No other evidence has been brought by the prosecution on record that appellant Abdul Sattar had dishonestly received the property so recovered from his house and, that he had knowledge that it was stolen/robbed property. Even, there is nothing on record to show that appellant Abdul Sattar had conscious knowledge that the property so recovered stood available on being kept by his brother in law appellant Agha Nasir.
19. Having discussed the case as above, I am of considered view that there is sufficient evidence available on record to connect appellants Agha Nasir, Shahzad and Kashif beyond shadow of doubt with L offence of robbery punishable under section 392, P.P.C. And they are liable to be punished accordingly. Learned counsel for the appellants stated that the appellants are neither previous convicts nor they are so involved in any other case while considering the arguments prayed that he or they may be dealt with leniently being the first offender(s). I have given due consideration to their request and have seen the record. No report and/or record is available to show that appellants Agha Nasir, Shahzad and Kashif were involved before in any other criminal case. In a case reported as RABNAWAZ KHATTAK and another v. THE STATE (2011 PCr.LJ 636) it was held that the culprits may be treated leniently on the ground considering the same as mitigating circumstance that they were the first offenders. Record, reveals that the appellants were awarded punishment of 10 years under section 395, P.P.C. And same kind of punishment is provided under section 392, P.P.C.
20. Since I have already observed hereinabove that conviction and sentence awarded under section 395, P.P.C. To the appellants Agha Nasir, Shahzad and Kashif was not warranted, however found them guilty of offence of robbery falling under section 392, P.P.C. I, therefore, modify impugned Judgment by substituting the conviction under section 392, P.P.C. And taking lenient view award them sentence of 7 years' R.I. With fine Rs,50,000 each and in case default to suffer' R.I.
For six months more, with benefit of section 382-B, Cr.P.C. Extended to them. No case of dacoity or robbery has been made out against appellants Nauman and Shoaib, however, it has been proved against them that they are guilty beyond shadow of doubt of offence under section 411, P.P.C. The conviction and sentence awarded to them under section 395, P.P.C. Is therefore set-aside and they are convicted and sentenced under section 411, P.P.C. Suffer R.I. For 3 years and they are also extended benefit of section 382-B, Cr.P.C. No case under section 412, P.P:C. Has been made out against appellant Abdul Sattar, hence the conviction and sentence awarded to him not being sustainable on facts and law is set aside. He shall be released forthwith if not required in any other case. Thus, the impugned judgment is modified and the appeals are disposed of in above terms.