SH. MUHAMMAD ZUBAIR, J: -- Zulfiqar Ali alias Dittu (26/27) and Altaf alias Asif Kaka (25) were tried under section 392 read with section 397, P.P.C. By the Judge Special Court No.IX, Gujranwala. The trial Court vide its judgment, dated 1-6-1988 convicted them thereunder and sentenced them to 14 years' R.I. Plus a fine of Rs.10,000 each or in default 2 years' R.I. The fine, if recovered, was ordered to be paid to the victim of robbery i.e. Haji Fayyaz Ahmad as compensation under section 544-A, Cr.P.C.
2. Zulfiqar Ali has challenged his conviction through Criminal Appeal No.849 of 1988 whereas Altaf has filed Criminal Appeal No.42-J of 1988 through jail. As both the appeals arise out of a single judgment, we propose to dispose of these appeals by this judgment.
3. The prosecution case is that on 19-2-1987 Haji Fayyaz Ahmad (P.W.1) came from Lahore to Gujranwala by Flying Coach. He had a sum of Rs.1,50,000 with him, which he had collected as broker from different shop-keepers of Lahore, as 'the price of cloth supplied to them by him. After he alighted from the vehicle, he hired a rickshaw. When he reached in Kamoh Colony near his house and stepped down from the rickshaw he saw two persons sitting in. a shop nearby. They came near him. One of the accused placed the muzzle of revolver at his neck from behind while the other clasped him. They snatched Rs.1,50,000 alongwith some other documents from him. After snatching the money the accused boarded the same rickshaw by which the complainant had arrived and decamped.
4. The same day Haji Fayyaz Ahmad (P.W.1) went to Police Station Satellite Town, Gujranwala, and made application Exh. PA. To the S.H.O. On 26-10-1987 Muhammad Akram A.S.I. Received complaint sent by Muhammad Boota Khan, S.I. (P.W.5) and recorded the formal F.I.R. Exh.PA./1. However, before that, Muhammad Siddique Inspector on receipt of complaint Exh. PA., vide Ruput No.25, dated 18-2- 1987 doubted the story put forth therein, and recorded this fact in the daily diary as required under Rule 24.4 of the Police Rules. Later on the investigation was entrusted to Muhammad Boota Khan S.I.
(P.W.5).
5. On 1-11-1987 Fazal Ahmad Masood Inspector (P.W.6) arrested Zulfiqar Ali appellant. On his personal search he recovered a Klashnikov 2 magazines and 30 live cartridges vide memo. Exh. P.D.
The same day he also arrested Altaf appellant and recovered pistol P.5 and 2 magazines vide memo. Exh. P.E. Apart from a dagger vide memo. Exh. P.F.
6. On 2-11-1987 Haji Fayyaz Ahmad P.W.1 appeared before Muhammad Boota S.I. (P.W.5) and made supplementary statement regarding the identification of the appellants. He arrested both the appellants on 12-1-1988. He also recorded the statements of the witnesses under section 161, Cr.P.C.
After completing the investigation he submitted the challan in the Court.
7. The prosecution in order to prove its case produced Fayyaz Ahmad (P.W.I) the victim of robbery who gave the ocular version of the occurrence. Fazal Ahmad Masood Inspector (P.W.6) arrested both the appellants and Muhammad Boota (P.W.5) investigated the case. The evidence of remaining witnesses is of formal nature.
8. The appellants when examined under section 342, Cr.P.C. Denied the prosecution allegations. The stand taken up by them in regard to their involvement in the said case was that they had been made a prey because they were already in the police custody in other cases. The police in order to show their efficiency had involved them in this case falsely. No evidence was produced in defence.
9. The trial Court believing the prosecution evidence convicted the appellant and gave them the sentence as indicated above.
10. Learned counsel for the appellant has contended that there was no F.I.R. In this case because the Police Officer refused to enter into investigation placing reliance on Rule 24.4 of the Police Rules, considering the occurrence as of doubtful nature. He further contended that the eye-witness was not in a position to identify the real culprits after the lapse of considerable time and no reliance can be placed on the test identification parade in which the eye-witness allegedly recognized the appellants without there being any independent corroboration of his testimony either through direct or by way of circumstantial evidence.
11. Learned counsel for the State has adopted those reasons, which prevailed with the trial Court while convicting the appellants.
12. We have gone through the record carefully with the assistance of the learned counsel for the parties and find no force in the legal objection raised by the learned counsel for the appellants. The Police Officer without scanning the direct or circumstantial evidence, in haste came to the conclusion that the case was of doubtful nature, and refused to enter into investigation as required under Rule 24.4 of the Police Rules. The law requires that a Police Officer should first register a case and then form an opinion whether the facts stated in the F.I.R. Are true or not. In the present case Police Officer has not acted in accordance with law; rather he has put the horse before the cart hence no reliance can be placed on this dubious inquiry, this contention is therefore, repelled.
13. The decision of this case depends on this fact whether Haji Fayyaz Ahmad complainant could identify the culprits at the relevant time or not. As there is no background of enmity, we have examined the circumstances in which the dacoity took place in the case. It is a well-settled principle that a person's right perception of an object seen by him, depends amongst others on the following circumstances:-- (i)on his situation relative to the object viewed, his nearness to or distance from it, (ii)also on his capacity to see with perfect or sufficient distinctness an object far-of, (i.e)he may be able to discern clearly things at a great distance from him, or' to see distinctly only objects near to him that is, he may be either far-sighted or near-sighted, (iv)his right perception of the object may also depend on the light by which it is seen and therefore, on the time, whether day or night,.
(v)it may depend, also, on the length or shortness of the time he has, in which to view the object; (vi)it may depend also on the freedom of his view from all obstructions at the time, from whatever cause, or momentary,
(vii) the sun shining full in the face of a person may very much obstruct his sight. And the same effect may be produced by falling snow, or dense rain or smoke.
14. Applying the aforementioned factual tests to the present case, we find that while robbing the complainant, one of the accused took him in his clasp while the other put the muzzle of the revolver on his neck, which means that both the dacoits came very close to the complainant, from where he could clearly see their faces and broad features, which ultimately led to their recognition by the complainant as deposed by him. The testimony of the complainant was further corroborated by the recovery of incriminating weapons at the instance of the appellants.
15. In order to record a conviction, the Courts of law have to place reliance on the quality and not on the quantity of the evidence produced by the prosecution. In the present case complainant's evidence is straightforward and' confidence inspiring as there is no background of enmity hence it is sufficient to sustain the conviction of the appellants in the eye of law. We find no force in this appeal, which is dismissed.
16. We have given our anxious consideration to this aspect of the case what should be the appropriate sentence in the present case. We find the sentence awarded by the trial Court under section 392 read with section 397, P.P.C. Is appropriate to meet the ends of justice for the reasons given by the trial Court, and needs no reduction.
17. The upshot of above discussion is that both the appeals fail and are hereby dismissed.