MUHAMMAD AMIR MALIK, J.---Muhammad Azam and Azmat Ullah (Criminal Appeal No.399 of 1988), Shaukat Ali (Criminal Appeal No.826 of 1988) and Muhammad Bashir (Criminal Appeal No.57-J of 1988), appellants alongwith Ahmad Nawaz and Muhammad Amir absconders were tried by Special Court for Speedy Trial No. VIII Sargodha and vide judgment, dated 23-4-1988 convicted and sentenced as under: "All under section 148, P.P.C.: Two years' R.I. Each and fine of Rs.5,000 each or in default thereof 2 months' R.I. Each.
All under section 364/149, P.P.C.: Seven years' R.I. Each and a fine of 8.10,000 each or in default thereof one year's R.I. Each. Muhammad Azam and Azmat Ullah under section 395, P.P.C.: Seven years' R.I. Each and fine of Rs.10,000 each or in default thereof one year's R.I: each.
Shaukat Ali, Muhammad Bashir and the absconders under section 395/397, P.P.C.: 10 years' R.I. Each and fine of Rs.10,000 each or in default thereof two years' R,I. Each The sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended.
We propose to dispose of the three separate appeals, filed by the appellants, by a single judgment.
2. The place of occurrence is the goldsmith shop of Muhammad Hayat (P.W.5) the brother of Atta Muhammad complainant (P.W.4) in village Rikhi at a distance of about 10 miles from Police Station Chakrala, District Mianwali. The complainant is a resident of village Dhurnaka and had come to see his brother Muhammad Hayat (P.W.5). They were present alongwith Dost Muhammad and Sher Zaman (given up P.Ws.) at the shop on 6-9-1987 at 10-00 a.m. At once Ahmad Nawaz absconder and Bashir appellant armed with kalashnikovs, Shaukat appellant with rifle and Azam appellant empty handed reached the shop, caught hold of Muhammad Hayat and took him inside the house. Bashir appellant with kalashnikov stood on the gate. Azam appellant and Amir absconder went up the roof. Ahmad Nawaz absconder and Shaukat appellant made a search of the house.
They removed one National T.V., gold ornaments and a double barrel .12 bore licensed gun from the house. They also took along Muhammad Hayat. The appellants and the absconders had come in a Suzuki Van of red colour, which was being driven by Azmat Ullah appellant who kept sitting on the driving seat. Taking along the said articles and Muhammad Hayat (P.W.5), the appellants and their absconder companions made good their escape. The complainant (P.W.4) alongwith P.Ws.
Reached bus-stand Rikhi raising alarm where Muhammad Taj Khan (given up P.W.) met them who told them that Ahmad Nawaz had fired a burst of kalashnikov and called out that Muhammad Hayat had deceived his (Ahmad Nawaz's) companion Rab Nawaz, an absconder. Muhammad Taj also informed them that the Suzuki had been taken towards Dhaki Hill.
3. Giving the above facts complaint (Exh. P.A.) was made by Atta Muhammad complainant (P.W.4) to Ghulam Murtaza S.I. (P.W.6) on the very day of occurrence at 11-15 a.m. At Ban Hartz Jee. It was sent to the police station where formal F.I.R. (Exh.PA./1) was registered by Amir Abdullah A.S.I. (P.W.1) at 12-00 noon.
4. The motive given in the F.I.R. Is that Ahmad Nawaz absconder suspected that his companion Rab Nawaz absconder had been arrested by the police on the secret information of Muhammad Hayat (P.W.5) For this very grudge decoity at the house had been committed and Muhammad Hayat abducted.
5. Muhammad Azam and Muhammad Bashir, appellants were arrested by Ghulam Murtaza S.I.
(P.W.6) on 10.9-1987. Azam appellant got recovered cash of Rs.130 with letter (P.15/1-4 and P.16) and two bags (P.21 and 22) each containing 100 bullets (P.21/1-100 and P.22/1-100). These were respectively taken into possession vide memos. (Exhs. P.K. And P.M.). Muhammad Bashir appellant from the bushes got recovered kalashnikov (P.17), two magazines (P.18 and 19), each containing 28 bullets (P.18/1-28 and P.19/1-28), and a canvass bag (P.20). These were taken into possession vide memo. (Exh. P.L.). The recovery evidence is provided by Ghulam Murtaza S.I. (P.W.6) only while Atta Ullah Khan A.S.I. And Waris Khan-C were given up.
6. Azmat Ullah appellant was arrested,, by Ghulam Murtaza S.I. (P.W.6) on 18-9-1987 from his house.
He got recovered gun (P.24) of Muhammad Hayat (P.W.5) and was secured vide memo. (Exh. P.N.)
The recovery is stated to by Ghulam Murtaza S.I. Only while Ghulam Shabbir Khan A.S.I. And Shahjehan Khan-C, the other recovery witnesses, were given up.
7. Shaukat Ali appellant,, was arrested by Ghulam Yasin S.I. (P.W.3) on 10-9-1987. From him Rs.301 (P.6/1-4) and his Identity Card (P.7) vide memo. (Exh. P.D.) were recovered. He also got recovered rifle (P.8) 75 live bullets (P.9/1-75) contained in 15 Chargers and one bag (P.10). These were taken into possession vide memo. (Exh. P.E.). The recovery is stated to by Muhammad Hussain,, and Ghulam Yasin S.I. (P.Ws. 2 and 3)
8. During the investigation of*case F.I.R. No.131/87 of Police Station Musa Khel, Ghulam Yasin S.I.
(P.W3) took into possession Suzuki (P.1), its registration book (P.2), Route Permit (P.3), Insurance Book (P.4) vide memo. (Exh. P.B.) and T.V. Set (P.5) lying in the Suzuki (P.1) vide memo. (Exh. P.C.). He deposed about the recoveries while Muhammad Iqbal, A.S.I. And Faiz Muhammad, the other recovery witnesses, were not examined.
9. The case of the appellants is of bare denial and of false implication. No evidence was led in defence.
10. The eye-witness account of the occurrence is given by Atta Muhammad complainant and his brother Muhammad Hayat (P.Ws.4 and 5), Muhammad Hayat P.W. Supported the version given in the F.I.R. He also deposed that after having committed decoity in the house he was put in the Suzuki Wagon and taken towards Rikhi bus-stand. On reaching Mianwali-Talagang Road, Ahmad Nawaz shouted that he was taking him away in exchange of Rab Nawaz and fired a burst from his kalashnikov. He goes on to tell that thereafter Suzuki was driven to Dhaki Hill where an encounter took place between the police and his abductors in the area of Loon Wahani. In the exchange of firing between the police and the culprits, he managed to escape and fell in a ditch from where he was recovered by the police at about 3-30 or 3-45 p.m. Atta Muhammad complainant has also supported the version. We have been taken through their statements and they seem to have stood the test of cross-examination. Ghulam Murtaza S.I. (P.W.6) was S.H.O. Chakrala. After recording the complaint (Exh. P.A.), he claims to have informed the higher Officers on wireless and chased the culprits. He reached the area of Bori Khel where an encounter took place between the accused and the police of Police Station Musa Khel. After the encounter he chased the culprits to Bhori Khel Hills and recovered Muhammad Hayat P.W. From the hills. The statement of Muhammad Hayat gets corroboration from the statement of Ghulam Murtaza S.I. (P.W.6) as to his having been recovered from the hills and there being an encounter with cross-firing between the culprits and the police party.
11. Learned counsel for the appellants contended that according to the motive given in the F.I.R. And stated at the trial, Ahmad Nawaz absconder was having grudge against Muhammad Hayat P.W.
But so far as the present appellants are concerned they have no motive at all. It was argued that Atta Muhammad complainant and his brother Muhammad Hayat (P.Ws. 4 and 5) could not be believed without corroboration. Due to an encounter with the police in which perhaps Ahmad Nawaz was involved, the present appellants have been falsely implicated. Learned counsel for the State has pointed out that if there was no motive against the appellants, then the complainant and his brother Muhammad Hayat would be independent witnesses against them and there is no reason why they should not be believed. After having heard the learned counsel for the parties and going through the record, we find that the case against Muhammad Azam. Appellant is not proved beyond any shadow of reasonable doubt.
12. As indicated above Atta Muhammad complainant and Muhammad Hayat (P.Ws. 4 and 5) are real brothers. Muhammad Hayat told in cross--examination that Azam lived at Musa Khel, at a distance of 8 miles from Rikhi. He had identified him from his back side and clothes and the police had told him his (Azam's) name. He was candid enough to say that Bashir and Shaukat accused were known to him even prior to the occurrence but Azam was not. From him only cash, a letter and bullets have been recovered vide memos. (Exhs. P.K. And P.M.) and only Ghulam Murtaza S.I.
(P.W.6) has stated about it. It is an admitted fact that no identification parade was held in this case.
Both Atta Muhammad and Muhammad Hayat have told that the 4 appellants were shown to them in the police station. Azam being not known to Muhammad Hayat, the possibility that on being arrested later on by the police, he was shown to the witnesses along with other appellants and involved in this case, cannot be entirely ruled out.
13. We also rind that as against Azmat Ullah appellant only a case under section 412, P.P.C.' can be said to have been proved and under no other charge. Both Atta Muharilmad and Muhammad Hayat P.Ws. Have stated that he kept sitting on the driving seat of the Suzuki Wagon. No other role has been attributed to him except that the culprits left the spot in the Suzuki Wagon. Hence he did not play any part so far as the offence under section 395/364, P.P.C. Is concerned. Gun (P.24) of Muhammad Hayat (P.W.5) was recovered from him and the recovery evidence-is provided by Ghulam Murtaza S.I. (P.W.6). The gun was taken away from the house about which Atta Muhammad has made a categorical statement. Hence Azmat Ullah has been guilty of offence only under section 412, P.P.C. His conviction under section 395/364/148 cannot be maintained.
14. Bashir and Shaukat appellants were known to Atta Muhammad and Muhammad Hayat P.Ws.
And they are implicated in clear terms as the culprits who had gone inside the house armed alongwith two absconders and then taken along Muhammad Hayat in the Van, whereafter, there was an encounter with the police and Muhammad Hayat was recovered by the police from the hills. The witnesses are independent against them and their conviction under section 395/397/148 P.P.C. Is proper. However, their conviction under section 364, P.P.C. Cannot be maintained. Had they intended to cause the death or grievous hurt to Muhammad Hayat, there was nothing in their way to do so. They' alongwith absconders took away Muhammad Hayat and kept him in illegal confinement. They are, therefore, convicted under section 342, P.P.C. Instead of 364, P.P.C.
15. The upshot of the above discussion and conclusion, is that we grant t e benefit of doubt to Azam appellant and acquit him. His appeal is accepted. I Azmat Ullah appellant is acquitted of the offences under section 148/364/395, P.P.C. And instead is convicted under section 412, P.P.C. He is awarded a sentence of 7 years' R.I. And a fine of Rs.5,000 or in default thereof one year's R.I. The conviction and sentences of Shaukat and Bashir appellants under sections 395/397, P.P.C. And 148, P.P.C. Are maintained. However, they are acquitted of the charge under section 364, P.P.C. And instead convicted under section 342, P.P.C. And awarded a sentence of one year's R.I. Each thereunder. Their sentences would run concurrently. They along with Azmat Ullah appellant would have the benefit of the provisions of section 382-B, Cr.P.C.