KHALIL-UR-REHMAN RAMDAY, J.--- Muhammad Saleem and Muhammad Khalil were tried by a learned Special Court for Speedy Trials at Gujranwala for the alleged commission of offences punishable under section 397, P.P.C: read with section 392, P.P.C.
2. Through its judgment, dated 12-2-1989, the said learned trial Court found both the said accused persons guilty bf the charge and after convicting each one of them under section 397/392, P.P.C.
Sentenced each one of them to seven years' R.I. With a fine of Rs.10,000 or sufferance of one year's R.I. In default of payment of fine. The entire amount of fine was directed to be paid to the victims of the occurrence in question as compensation.
3. Criminal Appeal NoB2 of 1989 was filed by Muhammad Saleem convict while Muhammad Khalil convict filed an appeal bearing Criminal Appeal No.84 of 1989, to challenge the above-mentioned conviction and sentences recorded against them.
4. Both these matters are being disposed of together through this single
5. One Muhammad Amin Carpenter had reported to Fazal Masood Inspector/S.H.O. Of Police Station Model Town on 13-6-1988 at 11-45 p.m. While the latter was present near Din Plaza that he had gone to the shop of one Saleem for receiving his labour charges in respect of the work done; that the said Saleem paid him Rs.1,000 and the complainant already had Rs.2,500 in his pocket and just as he was coming down from his shop, three unknown persons pushed him back into the shop whereafter one of these three persons put a revolver on his chest and the other put a revolver on the neck of the shopkeeper; that these persons then commanded them to hand over whatever money they had in their pockets; that these culprits then took out Rs.3,500 from the complainant's pocket and Rs.1,200 from the shopkeeper's pocket and then decamped on the complainant's motor-cycle which was parked aside.
6. The two appellants had been arrested by Amjad Karim Butt Inspector/SM.O. Of Police Station Baghbanpura (P.W.6) in a case registered at his police station under section 402, P.P.C. On the personal search of Khalil appellant, a Carbine (P.1) was found and seized.
7. On receipt of information regarding the arrest of these two accused persons, Fazal Masood Inspector/S.H.O. Of Police Station Model Town arrested both the appellants on 23-7-1988 after taking their custody from the Baghbanpura Police Station and secured their remand to judicial lock-up for the purposes of test identification parade.
8. These two appellants were subjected to a test identification parade on 4-8-1988 in the premises of the Central Jail at Gujranwala which was held order the supervision of Mirza Noor-Ahmad W.C.
(P.W.3) and in which proceedings Muhammad Amin complainant and Saleem shopkeeper (P.W.4) correctly identified both the appellants.
9. It is also on record that after the said identification parade, both the appellants were remanded to police custody but they escaped from Police Station Model Town on 13-8-1988 in respect of which occurrence F.I.R. Bearing No.545 was registered at Police Station Model Town on the above-- mentioned date for the alleged commission of an offence punishable under section 224, P.P.C.
10. After being retaken on 15-8-1988 by Muhammad Ashraf S.I. (P.W.7), a pistol (P.2) was recovered as a result of the personal search of Saleem appellant. On the same day i.e. 15-8-1988, a motor- cycle (P.3) bearing Registration No.GAB-978 belonging to Amin complainant was also recovered at the instance of Muhammad Saleem appellant.
11 On being confronted with this prosecution evidence, both the appellants denied their participation in the occurrence in question. They also denied their identification at the test identification parade and further denied recovery of the above-mentioned incriminating articles from them and at their instance. They claimed that they had been falsely involved at the instance of Amjad Karim Inspector
12. Canvassing acquittal for the two appellants, their learned counsel argued that they had been maliciously involved in the present occurrence on account of their enmity with Amjad Karim Inspector (P.W.6); that the test identification parade allegedly held wars fake: that the incriminating articles had been falsely planted on the two appellants and finally that in the circumstances the two appellants deserved to be acquitted.
13. It is on record that the two appellants had been arrested on 22-7-1988 and had been remanded to judicial custody on the very next day i.e. 23-7-19811 and remained in jail till the holding "of the test identification parade. In the circumstances, it is not reasonably believable that the two appellants could have been shown to the two witnesses who had identified them because the record does not suggest any such opportunity having been available to the P.Ws. It was suggested by the appellants to Mirza Noor Ahmad M.I.C. During his cross-examination that he had shown The appellants to Muhammad Amin complainant in his Court-room and further that the P.Ws. In question had not identified the two appellant; during the said proceedings and that the report by the said learned Magistrate was false.
14. These appear to be bald and wild allegations which stand absolutely unsubstantiated on record. In any case no reason exists why the Magistrate should have shown the appellants to Muhammad Amin complainant P.W. Or why he should have reported that .The P.Ws. Had correctly identified the two appellants if they had not so done.
15. This defence plea is, therefore, rejected.
16. The appellants then claimed that they had been falsely implicated on account of Saleem appellant's enmity with Amjad Karim Inspector (P.W.6).
17. It is on record that the occurrence in question had taken place within the jurisdiction of Police Station Model Town while Amjad Karim Inspector was posted its S.H.O. At Baghbanpura Police Station at the relevant time. The only reason for enmity suggested between Saleem appellant and the said Amjad Karim Butt Inspector was that the appellant was Arain by caste whereas the said Inspector belonged to Kashmiri caste and that the members of the said castes were pitched against each other, politically, in the city of Gujranwala.
18. This is again a vague and unspecified allegation which cannot be made basis for discarding the entire prosecution evidence available against the two appellants.
19. The learned counsel for the appellants drew our attention to Exh.D.B. Which is a report submitted by the D.I.-G. Of Gujranwala Range to the Chief Minister regarding some application submitted by one Mst. Irshad Bano who is a sister of Saleem appellant. It had been submitted in the said report that the said appellant was involved in a number of cases of dacoity and murder and that a brother of Saleem appellant had been arrested on account of his involvement in such like cases and further that Mst. Irshad Bano was making applications to the high ups only to harass the police Arshad and to pressurise them into desisting from taking any action against Saleem appellant.
20. A bare perusal of this document would demonstrate that the same does not substantiate any enmity between Saleem appellant and Amjad Karim Butt Inspector/S.H.O. Above-mentioned.
21. As has been noticed above, the two appellants had been correctly identified by Muhammad Amin complainant and Saleem P.W. These two witnesses have no reason to falsely implicate them in the occurrence in question and none was even suggested.
22. It is not possible to doubt the veracity of the proceedings of the test identification parade which was held under the supervision of a Magistrate and before the conduct of which proceedings, there was hardly any opportunity for the two P.Ws. To have been shown the two appellants.
23. The motor-cycle of Muhammad Amin complainant had been recovered at the instance of Saleem appellant and no reason exists which could lead to any doubt about the recovery of the said motor-cycle and its plantation on the said appellant.
24. Consequently, we rind that no exception can be taken to the finding of guilt recorded against the two appellants by the learned trial Court. Their conviction under section 397, P.P.C. Read with section 392, P.P.C. Is, therefore, maintained.
25. The quantum of sentence awarded to the two appellant, has however engaged our attention. In the facts and the circumstances of the present case we are of the opinion that the term of seven years' R.I. Awarded to the two appellant is a little harsh
26. Consequently, the sentence of seven years' R.I. Awarded to each of the two appellants is reduced to a term of five years' R.I. Each one of them shall he entitled to the benefit of the provisions of section 382-B. Cr.P.C.
27. The sentence of fine imposed on the two appellants and the direction regarding their payment to Amin complainant and Saleem P.W. Are, however, maintained.
28. Criminal Appeal Np.84 of 1989 and Criminal Appeal. No.82 of 1989 are dismissed subject to the above modification in the sentence of imprisonment.
N.H.Q./K-42/L