MUHAMMAD MUNIR KHAN, J: -- This criminal appeal arises from the judgment of learned Judge, Punjab Special Court No.VIII, Sargodha, whereby he, on 21-12-1987 convicted Riaz Ahmad, Noor Muhammad and Muhammad Yar appellants under section 392/34, P.P.C. And sentenced them to ten years' R.I. Each and a fine of Rs.10,000 each or in default thereof further one year's R.I. Each.
However, they were given the benefit of section 382-B of the Cr.P.C.
2. The charge against the appellants was that they on 21-4-1987 at 8-00 p.m. Robbed Rs.175, a motor-cycle and leather bag containing some official documents, registration book of the motor- cycle, driving licence and identity card of Muhammad Abdullah P.W.4, on canal bank in Chak No.23/SB of Police Station Kirana. They denied the charge and claimed to be tried.
3. To prove its case, the prosecution produced eight witnesses. Muhammad Abdullah P.W.4 stated that at the eventful time when he reached the place of occurrence, the appellants present in the Court, carrying guns had stopped his motor-cycle and had asked him to hand over the motor- cycle to them. They forcibly took out Rs.175 from his pocket and also took away the leather bag containing some official documents, driving licence, identity Lard and registration book. After the occurrence, he went to Police Post Bhagtanwala and made statement Exh. PA. In cross- examination, he stated that in the identification parade, he correctly identified Noor Muhammad but could not identify the other accused. Mehr Sultan Mahmood, Magistrate 1st Class (P.W.5) conducted the identification parade. He stated that Muhammad Abdullah P.W. Correctly identified Noor Muhammad accused in the identification parade but could not identify the other accused. He stated that at the time of identification, Riaz Ahmad accused had complained that the police had shown him to the witnesses in the police station. Muhammad Siddiq S.I. (P.W.8) stated that on 10-5- 1987, during the investigation of another case, when he reached bridge Sem Canal, he arrested Riaz accused and recovered hand-bag P.2 containing photostat copy of identity card of Abdullah P.W.
And documents P.4 and P.5, from him, vide memo. Exh. P.C. This memo. Is attested by Muhammad Afzal P.W.3 and Ghulam Rasool P.WA The witness further stated that he summoned Abdullah P.W.
On 28-6-1987, who identified articles P.2 to P.5 as his property. He formally arrested the appellants on 9-7-1987 from District Jail, Sargodha. On 12-7-1987, Muhammad Yar appellant led to the recovery of stolen motor-cycle P.1 from his house, which was taken into possession vide memo. Exh P.B., attested by Nazir Ahmad, A.S.I. (P.W.2) and Khalid Mahmood, Head Constable (not produced).
Muhammad Afzal P.W.3 is not the witness of robbery of the motor-cycle etc. From Muhammad Abdullah. He has deposed about some incident, which took place in July 1987 in which the appellants were involved. Musher Ali Shah, Inspector (P.W.6) had recorded his statement Exh P.A. Of Muhammad Abdullah on 21-4-1987 at 9-30 p.m. It was on the basis of this statement that formal F.I.R. Was registered at the police station. Ghulam Rasool, Constable (P.W.7) stated that he had arrested Riaz accused in another case on 10-5-1987. At that time, he was carrying a bag containing another small bag P.2, photostat copy of identify card P.3 of Muhammad Abullah P.W. And two photostat copies of the documents Exh.P.4 and Exh.P.5, which were taken into possession vide recovery memo. Exh. P.C. Attested by him.
4. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. They raised plea of false implication by the police. They did not produce any evidence in defence and also did not give evidence on oath in disproof of the charge against them.
5. Believing the prosecution evidence, the learned trial Court has convicted the appellants, as stated above.
6. The learned counsel for the appellants submitted that Abdullah P.W., the solitary witness of the occurrence, has failed to identify Riaz Ahmad and Muhammad Yar accused/appellants; that there is no corroboration of the statement of Muhammad Abdullah P.W.; that the recovery of motor- cycle from Muhammad Yar, appellant is fake and that the prosecution has not been able to prove its case beyond reasonable doubt. Conversely, the learned counsel for the State has supported the judgment of the trial Court.
7. We have carefully attended to the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence, which has been produced by the prosecution, and the statements of the appellants under section 342, Cr P.C. As far the robbery of motor-cycle and other articles, the prosecution has produced Muhammad Abdullah complainant alone. There is no other eye--witness of the occurrence. The appellants,, were not previously known to Muhammad Abdullah P.W. After their arrest, the appellants were put to identification parade in which Muhammad Abdullah complainant could not identify Muhammad Yar and Riaz Ahmad appellants although he correctly identified Noor Muhammad appellant. The objection raised by Riaz Ahmad before the Magistrate that he was shown to the witnesses in the police station was obviously false because Muhammad Abdullah could not identify him. Had Riaz Ahmed been shown to Muhammad Abdullah P.W. Then he would have certainly identified him in the identification parade. This will show that not only the investigation, but also the identification parade were quite fair and honest.
Muhammad Abdullah complainant has no enmity against Noor Muhammad appellant to involve him falsely in the case. Had there been any previous enmity between Noor Muhammad appellant and the complainant then the name of the former would have been mentioned in the F.I.R. Noor Muhammad appellant has not been able to rebut the statement of Muhammad Abdullah P.W. For all these reasons, were are convinced that the prosecution has successfully brought home the crime punishable under section 392, P.P.C. To Noor Muhammad, appellant, but has failed to prove this charge against Muhammad Yar and Riaz Ahmad appellants beyond reasonable doubt. The recovery of leather bag and other documents from Riaz Ahmad seems to be doubtful. There was no fun to carry the bag and other articles with him at the time of his arrest. As for Muhammad Yar appellant, we find that the stolen motor-cycle was recovered from him. This fact is proved from the statements of Nazir Ahmad, A.S.I. (P.W.2) and Muhammad Siddique, S.I. (P.W.8). They have successfully faced the test of cross-examination. The statements made by them do not suffer from material contradictions/ discrepancies or dishonest improvements. We do not see any legal infirmity in their statements. Their evidence cannot and should not be rejected on account of the office, they hold. They had no animosity to plant the recovery of motor-cycle on Muhammad Yar appellant.
8. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of Riaz Ahmad and Muhammad Yar appellants under section 392, P.P.C. They are acquitted of the charge. Instead Muhammad Yar appellant is convicted under section 411, P.P.C. For retaining the stolen motor-cycle. He was arrested in July, 1987 and since the time of his arrest, he is continuously in jail. The imprisonment suffered by him as an under-trial prisoner and also as a convict will meet the case. So Muhammad Yar and Riaz Ahmad, appellants, shall be released forthwith, if not required,, to be detained in any other case. This appeal to extent of Noor Muhammad is dismissed in toto.