' JUSTICE MUHAMMAD RAFIQ TARAR (CHAIRMAN).- Khubaib Ahmed, (25/26) son of Abdul Qadir, resident of village Jhalari, Police Station Jatoi, District Muzaffargarh, was tried by the learned Judge, Special Court for Speedy Trials, Multan, under section 364-A/377/302, P.P.C. And section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the allegation that on 19-9-1991 he abducted Mst. Farhat Mai, aged six years, and after subjecting her to his unnatural lust stragulated her to death. By judgment dated 4-11-1991 he was convicted and sentenced to R.I. For 25 years and 30 stripes under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, imprisonment for life and a line of Rs, 50,000 under section 377, P.P.C. In default of payment of fine he was ordered to suffer further R.I. For six months. Under section 302, P.P.C. He was sentenced to death to be hanged by the neck till he be dead. He has challenged his conviction and sentence through this appeal.
2. The brief facts of the prosecution case are that on the morning of 19-9-1991, Mst. Farhat Mai, aged six years, went to the house of Ghulam Yaseen for learning the Holy Qur'an whereafter she did not return home. Her father Manzoor Hussain returned from work at 12-00 noon and was informed by his wife that Mst. Farhat Mai was missing. He started search for her and during the course he was informed by Akhtar Hussain and Dilawar Hussain PWs that they had seen Mst. Farhat Mai in the company of Khubaib Ahmed going on the pathway leading to Chah Azhar Shahwala. They further told him that Mst. Farhat Mai was eating a biscuit and on their enquiry Khubaib had told them that he wis taking her to her father. As the girl could not be traced, her father Manzoor Hussain reported the matter at the police station on the next day i.e, on 20-9-1991 at 11-00 a.m. Vide F.I.R. Exh.PL expressing apprehension that Khubaib Ahmed might have murdered his daughter.
3. The prosecution story goes on that on 20-9-1991 at 3-00 p.m. Khubaib Ahmed appellant met Muhammad Iqbal P.W.9 at his shop when Muhammad Ramzan P.W.10 was also there. He told them that having committed a big crime he remained restless throughout the previous night and wanted to get punishment for the said crime in this world. He continued that on the preceding day at 8-30 a.m. When Mst. Farhat Mai came out of the house of Ghulam Yaseen after learning the Holy Qur'an he was present in front of his house and was eating a biscuit. He gave a biscuit to Mst.
Farhat Mai and told her that he would take her to her father who was moulding bricks at Chah Azhar Shahwala. Then he took her to a cotton field and committed unnatural offence with her. She shrieked and he strangulated her to death. He requested them to produce him before the police lest he may be beaten to death by the villagers. Thereupon they produced him before Abdul Sattar Inspector/SHO who was present in the village and he arrested him. The appellant was wearing a blood-stained Chaddar.The SHO removed it from his person and took it into his possession vide memo Exh.PB.
4. Soon after his arrest, the appellant led the police to a cotton field from where he got recovered the dead body of Mst. Farhat Mai in the presence of Muhammad Iqbal and Muhammad Ramzan P.Ws.
5. The S.H.O. Prepared the injury statement Exh.P.F. And inquest report Exh. P.G. In respect of the dead body of the Mst. Farhat Mai and despatched it to the mortuary for post-mortem examination.
6. On 21-9-1991 at 8-00 a.m. Dr. Mushtaq, M.O., R.H.C., Jatoi, conducted the autopsy on the dead body of Mst. Farhat Mai deceased and found the following injuries on it:---
(1) An abrasion 1 x 1 c.m. On the left cheek.
(2) An abrasion 1 x 1 c.m. On the nose.
(3) An abrasion 1 x 1/2 c.m. On the right side of the forehead.
(4) Multiple abrasions on both knee-joints.
(5) The neck was swollen and skin peeled off on the neck. Maggots were present on the neck and the upper part of the chest.
(6) The anus was swollen. There were multiple lacerations on the rectum. The recto-vaginal pouch was ruptured resulting in single opening. {{BLUR}} In the OplAtrot(IlieldVetOt,IMsti.;Tarhat,Moi had been subjected to "act of sodomY".11,Aryihtflutet !Tippet part ttfi tiiithea Ai re, sent'tb Iiistopathologist for detection of Itiolil Itioniktilbthihingi,iheart, stomach contents faecal, matter and iwtilisititaffejseitt to the ',Chemical Examinee:,?Tte opinion rega ing cause f death was deferred till the reports of the Chemical In..; , ,air oh, ..) oDzyi :-... a rimer a opatli st., On receipt of their reports the doctor Opined 1.-0; thinly No's tie to of sutures) . And In 14(1.5' '(otelioti4iii )0016:)eu 0 us 1. i-, injury onffiVoIctilimer wee IA daYfkidtfielbnt t6'ci deasiik4he nrdiii* onr 'Li DJ" Vr: ") 5p. ,.,1, - I , p i, ..; , course cit nature. Rd; fur driiiiinedthat death could also octiii due to shoot 'ail t eding resulting rorn he injury No.6. As per Chemical Examineri 'Jr lo v., ',..L...J '.....m. Injury r '':-...,ii f , ,13 report he anal swabs were stained with'keinen. , , 3f11 report 33nt;11.;:,- ,, :AO gr :,mq Intil p.'..Nsw.Linoa inLikqqi; -r:: 72 "loMie-liielittvettliationithe appellant was sent up toiliarhisdriaLli3q(pl c zi ybod bc:',,b Ai "io yy;:,:- 1 :,:i: :': L-,,,Gi ,- . , , ,,,11 noie?Olrro:., 14i:;ibili ..1rIf 811')1 riThgAcisoP044kgct , Rii4enCR of the murdr4!,AP41-thcgf9CffA'9?;) order4pnprqyFrrikiisigg- t Ilasrslielik on ithe following ,pfeses.t}ignci6iunIRt evidrdIRPriow y,-;d1 !Lig aril to ioviJr,i...)1 gaffxf oun;:i.Xi nozianinoa :34-1,1 f;crx '(i)I'liakii iiinWidence furn' hil:1*Itrail4iiiiiiiiiiiiitV.`a tielkiditar ciiii4se bas 2K.Hi ' iiis iv/ ,,,.'...Duci g?..C3 E ni inf;;T)lfil fon zi noininw ic.1..,..,:,1. aril ni now! ,: . ''., .:.In. To 7,)n.)!,i in ir,.i.N1 12-1,-I9.K., -,)11t prti,4 ..1,r1n 'I'm: r:t okii-(1)v.,,Froctra-judicial confession .Allegedly made by the appellant before Muhammad Iqbal P.W.9 and Muhammad Ramzan P.W.10.
Irm 43)- aiRceoverref the deadel)04y of. Mst.Ftititat,34411-4.Cceased at the obizz bAnstanceihf the appellantcaemfi miciiiit,lo =13.);;17.J.Icril ty.Inuino.. 41;11 .,_
(4) Recovery of blood-stained Chaddar from the person of the appellant 3(11 y,d at the time of his,arrest; and 7.1:-.)v 2vsii t,V1 .1f .
61,-2 )1,,... t. .. - , -: , :1161 loz,nuo3 bt-,,,nic,:,)1 int,;(5),,Medical evidence. ,,r, lc , , :, , .. , , , r7.
70c104 the appellant pleaded not guilty to the charge and denied the Ehtion's.allegatibiliatilitithiMi When asked why thiS case against him hi iiikdebthe fillidwifig*Itteitietitqi- 'It 1(,i1.,:: ,ii 3 0 - ' Wlie;i!Irti ni btivvo:K.:1. Al: At f,11, ;Ai lo ,:,Lbor* ,,i :idf lo ,53nLi7,111prelist.,pafty5facboo, in,the village. I belongt9fiche People's Party odi 161 jyfilik3Iteeontplinant,peftly belongs to the Muslingfea,gtiehMt.N)del 5brita u- iglio4111,fM.NAL. As the. Leader of Muslim LeaguelAwlyAl101gad r=ssmz.Prepresents hinkin the area, and due to the pressure of-,ANhipidAtid ;AI of ;Mr., Abdul Qayyum, M.N.A. [have been falsely roped ihithilsc4sA0 b=jaubonfernainedick the villageithropiiout and I was with the search partgA bOjr,la ,...)11.94).4.991,and the dead: body_ of the deceased. Mst. Farhat Mai wfi ni ljecoyesekby- the sew* ;party. The -police interrogated flour othaF `gfthicl , youggithenog the village-including,nne of theirektive,s of ManzooF 5rii of , Hussale complainant, who is son of his sister-in-law, butlactef taking Vise C . Bribe; they were let off. The Investigating Officer acted undet. Pressure of the above said Allah Dad and Abdul Qayyum and with mala fide {{BLUR}} ' intention has involved me in this case. The Abadi of Chak consists of 200 houses, there are about 300 unmarried young men. Had I made any confession, I would have made it before any Magistrate. The recovery of blood-stained Chaddar has been planted on me."
10. After examining the evidence on the record, the learned trial Judge did not rely on the testimony of Akhtar Hussain, P.W.7 and also discarded the evidence relating to recovery of blood-stained Chaddar from the person of the appellant. However, relying on the remaining evidence, he convicted and sentenced the appellant as mentioned above. On the basis of certain admissions made by Dilawar Hussain P.W.6, the learned counsel for the appellant contended that prosecution version regarding the appearance of the appellant before Muhammad Iqbal and Muhammad Ramzan, P.Ws. For extrajudicial confession and thereafter leading to the recovery of the dead body is a mere concoction. He submitted that there was absolutely no occasion for the appellant to have gone to Muhammad Iqbal and Muhammad Ramzan to make the confessison because being relatives of the girl they were likely to react more sharply than the other villagers. It is further contended that extrajudicial confession is not relevant in a case punishable with death as Qisas and in any case being the weakest type of evidence it cannot be relied upon in the absence of strong corroboration from an independent and unimpeachable source.
' The learned State counsel while supporting the impugned judgment has contended that evidence of Akhtar Hussain, P.W.7 has been brushed aside by the trial Court without assigning any cogent reason.
11. We have very carefully considered the submissions made by the learned counsel for the parties in the light of evidence available on the record. In cross-examination Dilawar P.W. Stated that after telling the complainant that his daughter was seen in the company of the accused he went to Alipur from where he returned after an hour; the people were then searching the missing girl; the police came to the spot in the evening and he made his statement before the police officer; the dead body of the girl was recovered in the evening when the police arrived and that it was recovered at the instance of the accused. On the basis of the above admissions the learned counsel for the appellant contended that the prosecution version that the appellant made extra- judicial confession before Muhammad Iqbal and Muhammad Ramzan, P.Ws on the next day and thereafter, while in police custody, led to the recovery of the dead body on that day, was false.
Dilawar P.W. Was produced by the prosecution as a witness of last seen. In examination-in-chief he stated that he and Akhtar Hussain P.W. Had seen Mst. Farhat Mai deceased in the company of the appellant who, on their inquiry, told them that he was taking her to her father who was moulding bricks. He was neither a witness to the arrest of the accused nor to the recovery of the dead body.
He appears to have made obliging concessions in cross-examination in order to favour the accused, therefore, much importance cannot be attached to his above statement.
12. The evidence of Akhtar P.W. Was discarded on the ground that in his statement under section 161, Cr.P.C. He had narrated a story "as told by Dilawar and he has introduced the fact of purchase of milk at the trial. It appears that he has purposely made this statement to damage the prosecution". It was further observed that a witness "who relates one thing to the police and the other at the trial is not trustworthy". We have noted that there is nothing in the statement of this witness to show that he had stated "one thing before the police and other at the trial". Nothing was brought on the record by confronting him with his statement before police to show that he had stated differently therein. In examination-in-chief he stated that he and Dilawar were returning to the village when they saw Mst. Farhat Mai in the company of the appellant. He further stated that he had milk with him. In cross-examination he stated that he was coming to the Basti after purchasing the milk. This minor omission in the police statement could hardly constitute a ground for rejecting his evidence in toto. He is an independent and disinterested witness having absolutely no motive to falsely implicate the accused in a heinous crime like murder and his evidence can safely be relied upon.
13. The evidence regarding extra-judicial confession was furnished by Muhammad Iqbal and Muhammad Ramzan, P.Ws. Who too had no axe to grind against the appellant. The prosecution is not obliged to show why the accused chose relatives of the victim for making the confession and the same cannot be thrown away if it is otherwise established that it was voluntary and true. The appellant made the confession before them on 20-9-1991 wherein he stated that he had strangulated the unfortunate girl after subjecting her to his unnatural lust. The victim being a girl, the witnesses could not have known whether she was raped or subjected to sodomy unless they were so informed. The post-mortem examination conducted on the next day of making of confession revealed that the unfortunate little girl had been subjected to sodomy and in that view of the matter their evidence finds substantial corroboration from the medical evidence. The recovery of dead body at the instance of the appellant from a cotton field also lends material support to the prosecution case.
13. We agree with the learned counsel that extra-judicial confession is no evidence in a case punishable with death as Qisas. However, in view of the nature of evidence produced by the prosecution and relied upon by the trial Court, it is evident that the appellant was punished with death as Tazir and not as Qisas although it was specifically not so stated in the impugned judgment. The argument so far as this case is concerned is, therefore, misconceived.
The plea of the appellant that he was falsely implicated as he belonged to a certain political party has no substance. There is nothing on the record to show that he had contested the election against the local M.N.A. Or had {{BLUR}} 34-Q414Y-Peview49pft '.` '',` ' j'',It ''.g.': 4- . ''' 411:A5i/fa aid bar 1..4)-nitit Civil Appeal No.163 of 1988 vd bodzimul acw noiaawnoc, '.,...s., o 14 ii o.Tnebive 311T .L1 01 on on kid ooi of1wT717RN---NTC,Ntbrin iiidpI bninettralutil di \FAR woila of btAldo ion ai noinergus - -,ciT .Tni.Iilogyi 3111 ianirgs builg 3rn1;2 3c11 btu noiaa.-,:inoa ot-li itni-L. It-i rr i.- '-', 3 -lo 1igktkW l 141 3Zor3 katrior bar vicinulov aim PlAPLAK,. e a I r,1A.,s lSifrsig, nwouli od ionnuo 3d"i3131FWjd4)kah3ddrilF4519$ 4 ailielfiikri411-41-6isibilk1s14k9101tMt3911)a :xi) 1).)niftitiamia bfirl 311 iiirli inteia nworpl own{ 1011 ULM') a3?..!:,;ilj'W Jiil iiifliicickiViiV 3dT .12tid Iniuiranu .b.5miolni 02 313W yodi axi9PAPP551.1uferitiPurc6 kInc1 au/ :Ida -iwiloiriw lo griblEm lo yr.!), 1= iisuitArgmAry44g14fL.rthAppiellant riLltiont-largi ',AT . oi boboidua nood kid hi-4 oliiii olutimoind 3111 RAI b3n3v31 noi?..Aolno Iniineiadua akin 33n3biv ii:in.Li 13)Ygf4u.Stii lo woiv ir(1i ni kw vjnoboa. :..Ali 16 ybod bLota lo -tivo;i3dtTuiviiiiiitliitawanailltmoll nolic- rociolico 341 01 110qque, kil3I11rt176- ,,,.Nrrim.110)10-) 6 figfiTifl6 .Ogqr 3(11 to 5311E186i (From the order of Lahore High Court, Multan;-Bench,dated 44- 11947.gRItssicilj*Lil,"-41/NPRgifurliarrist)i ..Jiii ifilW 33186 .,)111 .Li Aiiiitili Nom' feiland*/ of 141AideeidedWelOthdanaar34 1291rizkr,r3 rit r4 60,,711 Lx t1!` fit% ,fly inixiao-ig ...,:il .0 b...)Dubolg 33nif..Li1v3 10 elutrin 1c4a). PilniabfPrii411111004041APPIr Tnelloqrpi orb icrli ful)ivo 2i ii duo') .Fr-LVtakelaiiiiiiiaimirldi' .' o2(i947411rOsgsw_6iiiitrotitgiolidiip Was :).1ve.:,DnoJaun aldF.Iiiellit 6fireibuiegiadikaliaitillitodfiiireStablisig granted to examine the bAlight d iniauptipni kkgr#Opeg oif whapirmilitvayelymprathunder S.7, oantjileThrb- aoptiOttOrettiliWybe49bka on 2m1 canili 1LDifiloq hitifioo I.; (Li kid 10 .A.Fei,tif ficsio! 3111 feriir;;T:; noiholo or!) .b33231rro3 kid nrf 111111 woli.7-: {{BLUR}} {{BLUR}}
(b) Punjab Pre-emption Act (I of 1913)d 10 1)13A noihirils-rm dairniq 240165-0-Pio0i..Sibntigit..31-1. *ab PitcdniptioitiAel,14913iguigleditialt-to Itglot6stsisigiktsaiiiiihiumt.6.., ,1 , :1-WW 3iii .10 ?.3iiiabhuod :.-Idi ot gnibbn nndiu km avysl aril to viiiidimiqqs od) oi binxr. Diiw nwo au 'to yfilnobi tr)dhildahribile*PilelPokOlaigid48-13kti TflUpDf; CA a3Ltio 11 isfi1 -Y...13ste.6 ni fiqqttk)rea"Cixt3iii4oilfi Tbe?-igiipkie ) WilIff Cid s JP ori ISMiiilial A fisaiTie 1 f pialii5 ftwial5 olgypilei. Pat '-''''ui th""4 ;Nan tie , !Ilegilrti)-eillOW.
Up 6 -if; f.Uil -)1 w oi liwoi odi nt '{ nobnogobni [P.4071 e I. ^-- .4j ' hr.v ..,a bo,),.pL,1,4 ..
(0 puNab _I Iii iw,mini...rliiM ,v iistriAA sovlog bnfi ',.-Q8 ale-1 ----S.7---If there is a sub-division of the town then the custom of pre-emption must be proved to exist in that sub-diviiiiititt hid tdikt.t.hleffrEri duigiel (1) di;t'd 118 L!:).L; .1..1-i...,dt. Lo. i:Y.Zio-orifti tlyi boi a oi ig rn 5- ici lo m o la uD- - - r 2- - (e) ninon rre- empuon -1:16(41 .Ri ,nniluM ni oiai) iiodE.1 orb 5biLit10 bovolq .. ,---S.7---Person who claims that a town is divided in sib-divisions has to prove f '' Thvb24yisH6'61 itethingtriabii6osVigt pii-eigOon law-- . t_ . Li..0,,, Divisur in'Yog artQ gtii&-figiyAkiaikeift4emsliamiNtlavitie, s..5 of- rellattiiiiiiii4i.Ty.i4b1)ii;%62 bomfiA riMsiatis sin: 11110 OTfPgsfi lEfa ,F- trri7) no in5brioqa.:)-5T-Iol bioa-31-no-t.-06)ovbA 'IMdVat aht'naIiiildtikorkies461.4giii4312 ref.
":QE.Ofrr 1.6..-)qqA irthilfxNA (imzdA) bio!):-)54-no-31.6)ovbA t(OriiiNjibiM4iimptiewAct4b041913)ftovbik ,iieanA bfimilA J\AFRE !m)qqA fi.FD Ifribriore3R ----S.7---Fact that City has Mohallahs and Bazars and Lanes with specific names would not follow that they weievfecogthied sul:H:livigiuns for purposes of pre-emption law. Vie31,11CILii, 0' La. Rs ificnames but - .17J hAye. Mohallahs,B from th14 s got ipuow t are ret kisicns for A t Jl 10 1, I fila,Ur^ ;0 31111411 3. a. Ilaxit t pltio6id sf.h, (ikullintiegt `174 az5isnPtiol'say whe e a partic ar guar cep; lowu st%i4 r ,#,:tillt1-0,h13b* sub-division for purposes of 4iirelliti2diastOrtwilagliSt didithed in the Act but it isuottinfail cases synonym with MWah !Mid,: that the , tam implies a. Quarter of grkcINROYAARIP,WP and frebcfgaiseEandxliaekuptirtwitaltho steels gtiaaf*Pfitheiti*WhiPrOKIJAtiotil ,51.0 ifull in:lac/18 sologoiq Jina Io IxAgen. Inieb ifrAILP14001,"1"3914?).1.+14' R'll'il-T)t-Trialq ion ?SW noilcum-tyvi irtomuo kv l;oinein Eft afiW81E4410 ,0 dkM 1.13dw thilied&sf4kE4Prpliie being thaa.:tkere should be faiistitictitwaitudthin and eh-Arm:ter 'Whielvatakmit a*cogniaed e-afOtloti-taiwAicasiief the' name bfAvobirtoOls well known that triad (166'1 puiPose this Att. fitottelleflq6 .1/Ch :1361CW .131(1.1:73`t Eirf s;,,) {{BLUR}}
(h) Punjab Pre-emption Act (I of 1913)-- ----S.7---Any area added to the town by notification at a subsequent date adding to the boundaries of the town would be a sub-division having a distinct identity of its own with regard to the applicability of the laws and urban character that it comes to acquire by such inclusion---No presumption of extension of law of pre-emption to such added area---Existence of a custom in respect of such added area before the relevant date has to be proved independently in the town to which the area was added. [p. 408] H & I Mst. Maqsooda Begum v. Maulvi Abdul Haq and others PLD 1968 Lah. 897 and Pervez Akhtar v. Muhammad Arif PLD 1977 Lah. 394 ref.
(i) Punjab Pre-emption Act (I of 1913)-- ----S.7---Custom of pre-emption was proved in respect of Jhang and so was proved outside the Lahori Gate in Multan. [p. 408] J Talib H. Rizvi, Advocate Supreme Court and Ali Imam Naqvi, Advocate-on-Record (absent) for Appellant (in Civil Appeal No.163 of 1988).
Ahmed Raza Kasuri, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent (in Civil Appeal No.163 of 1988).
Riaz Anwar, Senior Advocate Supreme Court and Rana MA. Qadri, Advocate-on-Record (absent) for Appellant (in Civil Appeal No.392 of 1988).
Bashir Ahmad Ansari, Advocate Supreme Court and Tanvir Ahmad Khan, Advocate-on-Record for Respondent (in Civil Appeal No.392 of 1988).
Date of hearing: 23rd January 1991.
' SHAFIUR RAHMAN, J.---Leave to appeal was granted in these two appeals and two others to examine the nature of evidence and proof required for establishing a right of pre-emption in respect of urban immovable property under section 7 of the Punjab Pre-emption Act, 1913.
2. In Civil Appeal No.163/88 a house on Street No.11, Ward VII, Jhang City was the subject-matter of pre-emption claim. It was stated to be located in Mohallah Chunnoon Moriwala. The trial Court had rejected the pre-emption claim in respect of this suit property on 5-11-1971 on the ground that the custom of pre-emption was not proved to be in existence in the locality of Mohallah Chunnoon Moriwala. On appeal, the District Judge reversed the finding holding that Mohallah Chunnoon Moriwala was in fact, as appeared from the evidence led at the trial, a part of Mohallah Sharifan where admittedly the custom of pre-emption was proved to exist before the enforcement of the Pre-emption Act, 1913. The High Court declined to interfere in revision considering the finding of fact to be sound and to be based on material on record. Hence, the vendee is before, us as the appellant and contending that Mohallah Chunnoon Moriwala was in fact a different Sub-Division of the Jhang Urban Area and the proof of custom in Mohallah Sharifan was not sufficient to allow the pre-emption claim of the respondent.
3. In Civil Appeal No.392/1988 the sale of urban immovable property had taken place and the property was located outside Lahori Gate in Multan City. The contest centred round the existence of the right of pre-emption in the locality prior to the enforcement of Pre-emption Act. All the three Courts held that such a right did exist in the locality and decreed the claim. The vendee is appellant before us and his submission is the same namely that in fact no custom of pre-emption.
Existed in the locality.
4. Section 7 of the Punjab Pre-emption Act, 1913 requiring interpretation is reproduced hereunder:-- "Subject to the provisions of section 5 a right of pre-emption shall exist in respect of urban immovable property in any town or sub-division of a town when a custom of pre-emption is proved to have been in existence in such town or sub-division at the time of the commencement of this Act, and not otherwise."
Section 5 to which it is subordinate is not at the moment relevant for our I purposes.
5. The first proposition that emerges from the law requiring interpretation is that if there is a custom of pre-emption proved in respect of a C town then a sale of urban immovable property in that town will be liable to pre-emption. The next qualifying proposition also to be found in the enacted law is that if there is a sub-division of the town then the custom of pre-emption must be proved to exist in that sub-division of the town. For the purposes of pre-emption law the person who claims that a town is divided in sub-divisions has to prove that in fact sub-divisions exist in that town.
Division of town into Mohallahs, Streets and Wards does not qualify as sub-division for the purposes of pre-emption law. This was made clear in Karim Ahmad v. Rahmat Elahi and others AIR 1946 Lah. 432 in the following words:- "A city may have Mohallahs and Bazars and lanes with specific names but from this fact it does not follow that they are recognised subdivisions for purposes of Pre-emption Law. It is a difficult matter in each case to say whether a particular quarter of the town should or should not be treated as a sub-division for purposes of Pre-emption Law. The word "sub-division" has not been defined in the Act but it has been held in several decisions of the Punjab Chief Court that it is not in all cases synonymous with a Mohallah and that the term subdivision implies a quarter of a town well known and recognised and does not mean the streets or lanes of the town." {{BLUR}} Tiret9iskinnriteAkit theakn,quAgmA-Mcilah. nctrActIREMITt7T3inoD rign4d144The tiPkel soinithinriniliVStructte, addl4SlitteiciihiehlnifAltfla recognised unit for Pre-emption Law. Because the name ant ftter 1411 is well known that fact does not necessarily 41#qtta:subr4iyision for nstliati gtAteJ111.PRK.P.f the A51"bai6aoi ovsgalq *di bit6tiq naiia bd Oh fllifleWtVany area addediehetoWniiraihkifircatten'at a kdifingWrilie boundarieS -of IfteloWn would leetlfaliiIY13e a sub-diviSibiiiniiiinei distiklidetitity of its oi+it4iltfil -regard to the apPlichbilltfof the laWsdiiirbaii eliartktieig"thit it conies-wtifi'ae4itifh 'bY eTliefe3Orit'te no presumption of extension of the pre-enriPtilAnlativ -ad a as has ic...P.Ccmsistently held intMstmMaqsooda Begun3dv. Maulvi Haq and others PLD 1968 Lah. 897 and Pervez 44htarMuhamma d *Of P1rD 1977 , Ictt Lah. 394 in respect of such added area. In respect of such added area, the existence:4 a custom of pne-emptionbefore the relevant date hasttiletbe proved independently of the existence of custom in:thntown to whit area is added. Except for the fact that in one case the Mohallah is mentioned and in the other the locationoutside- Lahori Gate, there is nothing to indicate in the evidence that there existed- a sub- division of the charactetand type indicated in the Pre-emption Law. Undoubtedly, in respect of Jhang, the custom of pre- 9 lemptioi fitokred and so was it proved outside the LahOri'dite in Multan.
6. The impugned decisions of the Courts are sound in law and do not einterference. Both the appeals are, the.-efore dismissed -With costs.
Mtaksi4N,299/S icdi rriqo1qaldsvornmi nschu 'Appeals dismissed btibiU13 511J m imuoi ;A of oak; noitidotioui ocw ooimmp-aig to mourn 3di : )0iiibdu 6 I 1JdJ2I WEI 10 za.?.Ctqwq stwol 3.1992 SC Ntit4o8uilIn P:11,5oi 1.)youi 5?.Urn znoizivib-dua ?; rrp: - -i(1 !MI oini nwoi to noiaivia [suPrePAAPpellate Cour*La tost ni kith 5'40-1q of awl W 016 Z35312 416116(11A .2()(1113(1 :;elhlkiiiiSike Muhammad Rafique irifil3 - e jika -Justices Raid Afrasiab Khan and Squad Ahnzaa wr ne-mq g, PrMnodio has SAJJAD AHMAD and another---Appellants afflEft ani3fxv. 1121W a5a61 bar; alL0 ;Mk, UL ii1iF. y.6117 Vic)
A 1 -due b3aiwa*-1 als v.Orli iscit woliel-stfm ii 130 zirli moil iud Iii131ifita .W6,1 lo zo?.Ocrwq P,aoiaivib bluarl? Nwo i it, nilAgetTATit*englisik*vi oi m' al Appeal No33/SAC of 1991, decided on 7th D . ecigl 40P ka) Evidence- ;-,-;17 maiziab ni ns JIB al loc., ----Secondary evidence proving ,qacaI reports regardinotg .Nrosecution neivit witnesses was not acceptable in taw cause no attempts%v83 ere macte by oki )0u 0i {{BLUR}} prosecution to prove that the Doctor was summoned to appear before the Court as a witness but he was not available at the relevant time---Injuries on the person of prosecution witnesses thus having not been proved convictions and sentences of accused under Ss.394/34 & 324/34, P.P.C.
Were set aside. [p. 415] A & B
(b) Surrender of Illicit Arms Ordinance (XX of 1991)- ----S.7(1)(c)---Appreciation of evidence---No evidence was led by prosecution to show that the weapons of offence were kept by accused without licence and consequently no such question was put to accused in their statements under S.342, Cr.P.C.---Conviction and sentence of accused under S.7(1)(c) of Ordinance XX of 1991 was set aside in circumstances. [p. 415] C
(c) Penal Code (XLV of 1860)- ----S.392/34---Appreciation of evidence---Accused were caught red-handed at the spot by prosecution witnesses alongwith their weapons and the currency notes were recovered from them---Evidence of prosecution witnesses had proved beyond doubt that they were robbed at pistol point on the day of occurrence---Defence version had been rejected for not having been established by accused---Conviction of accused under S.392/34, P.P.C. Was accordingly maintained and they were sentenced to seven years' R.I. Each with fine and benefit of S.382-B, Cr.P.C. [pp. 416, 417] D, G & H
(d) Penal Code (XLV of 1860)--- ----Ss.392/34, 394/34 & 324/34---Surrender of Illicit Arms Ordinance (XX of 1991), S.7(1)(c)---- Oaths Act (X of 1873), S.13---Irregularity in not recording the evidence of prosecution witnesses on oath by Trial Court did not vitiate the whole trial as the same was curable under S.13 of Oaths Act, 1873. [p. 416] E Zeb-ul-Haram's case PLD 1991 FSC 1 rel.
(e) Oaths Act (X of 1873)--- ----S.7---All Courts are now bound under law to administer oath to witnesses in the form of oath as amended by the High Court.
Form of oath has been amended by the High Court and as such Courts are bound to record evidence after administering oath to the witnesses according to the form of oath. The latest form of oath as prescribed by the High Court is as follows:--- "I swear by Allah Almighty that the evidence that I shall give before the Court in this case/matter shall be the truth; the whole truth and nothing but the truth; that I shall conceal nothing from the Court; and that if I say anything which is untrue or conceal anything, the wrath of Allah may fall on me."
All the Courts are now bound under law to administer oath to the witnesses in the aforesaid form.
[p. 416] F
(f) Oaths Act (X of 1873)- ----S.13---Trial is not vitiated if the statement of prosecution witness is not recorded by trial Court on oath---Such irregularity is curable under S.13 of Oaths Act, 1873. [p. 416] E Muhammad Munir Khan for Appellants. MA.K. Chaudhry for the State.
Date of hearing: 26th November, 1991.
' JUSTICE RAJA AFRASIAB KHAN (MEMBER)---Sajjad Ahmad (20) son of Naseer Ahmad, Khalid Mahmood (24) son of Ghulam Rasool and Muhammad Ali (22) son of Shaukat Ali, were tried by the learned Judge Special Court for Speedy Trial-II; Lahore, under sections 392/34, 394/34, 324/34 P.P.C.
And section 7(1)(c) of Surrender of Illicit Arms Ordinance, 1991 (Ordinance No.XX of 1991). Vide judgment dated 2-11-1991, the learned trial Judge convicted Sajjad Ahmad and Khalid Mahmood and sentenced them to undergo imprisonment for life under sections 392/34 and 394/34, P.P.C.
They were also ordered to pay a fine of Rs,1,00,000/- (one lac) each or in default thereof to suffer R.I.
For two years each. Both of them were also sentenced to 10 years' R.I. Each plus a fine of Rs,10,000/- each or in default to undergo R.I. For one year each under section 324/34, P.P.C. Likewise, they were sentenced to 10 years' R.I. Under section 7(1)(c) of Surrender of Illicit Arms Ordinance, 1991. It was directed that all the sentences awarded to the convicts shall run concurrently. Out of the fine amounts, if recovered, a sum of Rs, ten thousand was directed to be paid to Zaheer Ahmad and Ghulam Mohy-ud-Din PWs. Muhammad Ali, the third accused was, however, acquitted by the learned trial Court by giving him the benefit of doubt.
2. Briefly stated the facts of the case are that Zaheer Ahmed son of Bashir Ahmad (1st informent) is a resident of Mohni Road, Lahore. He works at Duty-Free Shop as a Clearance Agent. Ghulam Mohy-ud-Din and his son Riaz Ahmad also work with him as such. On 2-9-1991 at about 7-30 p.m., Zaheer Ahmed, Ghulam Mohy-ud-Din and Riaz Ahmad after having finished their daily business, were busy in counting the money while sitting in a Verandah of the office of Forest Department. In the meantime, two unknown persons came there on a Motorcycle. They parked their Motorcycle near the gate of said office and entered into its Verandah. Both were armed with Mausers. They issued threats that in case the complainant party rased an alarm, they would be done to death there and then. It was stated by the complainant that one of the accused, whose name was later known as Sajjad Ahmad son of Naseer Ahmad resident of Hafeez Ullah Road, Masoom Ganj,Lahore, took out forcibly a sum of Rs,5,000 (Five currency notes of the denomination of Rs,1,000 each) and an Identity Card from the pocket of Zaheer Ahmad. The second accused, whose name was later learnt as Khalid Butt son of Ghulam Rasool caste Kashmiri, resident of Hafiz Ullah Road, Masoom Ganj, Lahore, also forcibly took out a sum of Rs,1,50,000 and an identity card from the pocket of Ghulam Mohy-ud-Din. The accused when after committing the offence were about to leave the premises, the complainant party raised an alarm whereupon Naeem Ullah son of Saleem resident of Yakki Gate also came at the spot. The complainant party encircled the accused. Both the accused fired one shot each from their weapons at the complainant party which luckily missed the target. Encouraged by this, the complainant party apprehended the accused at the spot red- handed. The accused tried to get themselves released and also inflicted injuries upon the complainant party by giving blows from the wrong side of their weapons. The complainant party also in the exercise of their right of self-defence, gave a beating to them. The accused were overpowered along with their weapons. The local police reached the spot and both the accused were handed over to them with their weapons. Statement Exh.PA of the complainant Zaheer Ahmad was recorded by Muhammad Khalid A.S.I. On 2-9-1991 while the formal F.I.R. Exh.PA./1 was registered by Mahboob Elahi S.I. Police Station (Pa Gujjar Singh, Lahore, at 8-05 p.m. On the same day.
3. Muhammad Khalid A.S.I. P.W.8 investigated the case. He deposed that on 2-9-1991 at about 7-30 p.m., he was present on patrol duty along with other police constables near Duty Free Shop. On hearing a noise, in a nearby office of the Forest Department, he reached the spot. He found that Zaheer Ahmad, Ghulam Mohy-ud-Din, Naeem Ullah and Riaz had already caught Sajjad Ahmad and Khalid Mahmood. The accused had pistols in their hands. Accordingly, a .30 bore pistol and 4 live cartridges P.2/1-4 were recovered from the possession of Sajjad Ahmad. These articles were taken into possession vide memo. Exh.P.B. Similarly, one loaded .30 bore pistol P.3 was recovered from the possession of Khalid Mahmood by the police officer. From the magazine of the weapon, six live cartridges P.4/1-6 were recovered and were taken into possession vide memo. Exh.P.E. From the pocket of Sajjad Ahmad, a sum of Rs,5,000 Exh.P.5/1-5 and an Identity Card of Zaheer Ahmad were recovered which were taken into possession vide memo. Exh.P.C. Similarly, from the pocket of Khalid Butt, a sum of Rs,1,50,000 (150 currency notes of the denomination of Rs:1,000 each) P.6/1-150 and an Identity Card of Ghulam Mohy-ud-Din P.7 were recovered which were also taken into possession vide memo. Exh.P.D. Site-plan Exh.P.J. Was prepared by the police officer. Injury statements, Exh.P.K. And Exh.P.L. Of Zaheer Ahmad and Ghulam Mohy-ud-Din, respectively, were prepared. They were sent to hospital for their medical examination. The accused were formally arrested by the police officer. On the same day, supplementary statement of Zaheer Ahmad was recorded by the investigating officer. Muhammad Ali, the third accused was searched but he could not be traced out. He was, however, arrested on 18-9-1991. He led to the recovery of a Motorcycle bearing No.2409-LOD which was taken into possession vide memo. Exh.P.H.
4. Dr. Ahmad Ishaque medically examined Ghulam Mohy-ud-Din on 2-9-1991 at 8-10 p.m. And found the following injuries on his person :--
(1) Lacerated wound 30 x 0.5 cm x scalp deed on left parieto-occipital region of head.
(2) Lacerated wound 20 x 0.4 cm x scalp deep on right occipital region of head.
(3) Lacerated wound 10 x 0.3 cm x scalp deep outer to right eye-brow.
(4) Abraded swelling 3 x 2 cm on edge of nose.
' All the injuries were declared simple having been caused with blunt weapon within a duration of six hours. The said doctor on the same date at 8-15 medically examined Zaheer Ahmad and found the following injuries on his person :--
(1) Lacerated wound 15 x04 cm scalp deep on the right eye-brow.
(2) Abraded swelling 10x 0.5 cm on right forehead.
' All the injuries were declared simple having been caused with a blunt weapon within a duration of six hours.
' Dr. Ahmad Ishaque was, however, not produced by the prosecution during the trial and instead Amjad Ali P.W3 a Junior Clerk in the office of Police Surgeon, Lahore, appeared to prove the aforesaid two medico-legal reports of injured witnesses. He deposed that he had been working with Dr. Ahmad Ishaque and that he knew his handwriting and signatures. He stated that the medical reports Exh.P.F. And Exh.P.G. Of Ghulam Mohy-ud-Din and Zaheer Ahmad, respectively, were written by Dr. Ahmad Ishaque and he also signed the abovesaid reports.
5. Eye-witness account was furnished by Zaheer Ahmad P.W.1, Ghulam Mohy-ud-Din P.W.2, Muhammad Naeem P.W3 and Riaz Ahmad P.W.6.
6. The appellant Sajjad Ahmad in his statement under section 342, Cr.P.C. Denied the allegations levelled against him. He made a detailed statement before the Court. He disclosed that about 8 days ago, he was told by one of his friends that Zaheer Ahmad, complainant, was a dealer in dollars. He deposed that he had to go to Hong Kong and as such was in need of one thousand dollars. He went to Duty-Free Shop and met Zaheer Ahmad and Ghulam Mohy-ud-Din and asked them to make arrangement of Dollars for him in lieu of price. They received a sum of Rs,20,000 from the appellant with a view to provide one thousand dollars to him. They also asked the appellant to contact them after two days. After two days, the appellant went to the complainant who again gave another date of two days for giving him foreign currency. When the appellant approached the complainant for the aforesaid purpose, the complainant again failed to give foreign currency to him as promised and asked him to wait further. On this, they quarrelled with each other. The dispute was, however, patched up with a promise by the complainant that the appellant shall be given the foreign currency on 2-9-1991 without fail. On the said date, early in the morning the appellant approached the complainant when again he was asked to come in the evening to receive the money. The appellant Sajjad Ahmad told Khalid Mahmood that the complainant was not giving him Dollars in lieu of the money already paid to him. The appellant, therefore, took Khalid Mahmood with him in a rickshaw to the Duty-Free Shop. Zaheer Ahmad and Ghulam Mohy-ud-Din were present at their place in the garden in front of the Duty-Free Shop. They asked the complainant to pay the dollar amount to them. The appellant had a sum of Rs,8,000 in his pocket to pay the additional price because by that time the price of the dollars had increased. On the call of Ghulam Mohy-ud-Din 4/5 stout healthy persons reached the spot and took the accused away at a distance of 50/60 yards and started abusing them without any justification. Zaheer Ahmad caught hold of Khalid Mahmood whereupon Ghulam Mohy-ud-]Din slapped him. In turn, the appellant also caught Zaheer Ahmad from his collar and gave him a push towards the road. He fell down and received injuries as a result of his fall. On account of this fight between the parties, the traffic was blocked. A traffic police constable reached there. The appellant Sajjad Ahrnad, Khalid Mahmood, Zaheer Ahmad and Ghulam Mohy-ud-Din were taken to the police station. The other companions of the complainant party ran away from the spot. A search upon accused was made and in consequence his money was taken into possession by the police. They were also subjected to torture by the police. The police asked the complainant and Ghulam Mohy-ud-Din to sit outside.
The appellant further stated that it was disclosed to the Police that there was a dispute about payment of money between the parties and that the accused had to receive some foreign exchange from the complainant party in lieu of price already paid by them. The Police Officer gave an assurance that money will be returned to the accused party. It was mentioned that the police did not get them medically examined despite the fact that they were also injured. The appellants stated that they were subjected to severe torture by the police and were asked to make a confessional statement saying that they had committed a robbery. However, they did not oblige the investigating officer by making a confessional statement. It was further stated by the appellant Sajjad that he had a business place at McLeod Road, Lahore, and that in connection with his business he wanted to visit Hong Kong and, therefore, he was in need of dollars. In support of his plea, the appellant produced his passport Exh. D.D.Pertaining to the year 1990, Certificate of World Wide Traders Exh. D.E. Dated 28-10-1991, Vaccinations Certificate Exh.D.F. Having been issued by the Corporation. Three daily Newspapers, namely, Nawa-i-Waqt, Jang and Musawaat vide Exh.D.G., Exh.D.H. And Exh.D.J. To show that the commission of the offences was published in the press were also produced. Khalid Mahmood, appellant No.2, supported appellant No.1 by making a statement under section 342, Cr.P.C. Muhammad Ali, acquitted co-accused, took a different plea by saying that he had been working at the Duty-Free Shop. About six months ago, he had a quarrel with the complainant and that he left the business because the foreign currency was dealt with illegally by the complainant. He further deposed that he had been implicated in the case falsely. He pleaded his innocence.
7. The learned trial Judge came to the conclusion that the four eyewitnesses had no motive to falsely implicate the appellants because they were not known to them, previously. It was noted that Ghulam Mohy-ud-Din and his son Riaz Ahmad had a joint business with Zaheer Ahmad complainant and that all the three were disinterested witnesses, and as such, had no grudge or grouse against the appellants to falsely implicate them in the case. It was held that the prosecution evidence was corroborated by unimpeachable circumstances. According to the learned trial Judge, injuries on the persons of Zaheer Ahmad and Ghulam Mohy-ud-Din did provide sufficient corroboration to the case of the prosecution.
8. It is contended by the learned counsel that there was not an iota of evidence to connect the appellants with the commission of the crime. According to the learned counsel, the witnesses were interested and that there was no independent corroboration available on record in their support.
Learned counsel argues that the medical evidence has to be excluded from consideration because the Doctor (Dr. Ahmad Ishaque) who medically examined Ghulam Mohy-ud-Din and Zaheer Ahmad was not produced by the prosecution before the Court and instead a Junior Clerk was produced to prove the medical evidence. It is stressed that no process was issued to said Doctor by the Court according to law. No evidence of the process-server was recorded to show that Dr. Ahmad Ishaque was not available to appear before the Court to depose evidence.
According to the learned counsel, the evidence deposed by Amjad Ali P.W.3 cannot at all be taken into consideration because no attempts were made to prove that Dr. Ahmad Ishaque was not available. It is contended that since the medical evidence was not proved according to law, the charge against the appellants under sections 394/34 and 324/34, P.P.C. Would fail automatically. It is argued by the learned counsel that at best it may be said that an offence under section 379, P.P.C. Was made out against the appellants under the given circumstances. Learned counsel also argues that no evidence was recorded on oath and as such even the evidence regarding the theft cannot be read because it was recorded on solemn affirmation and certainly not on oath as required by law on the subject. Learned counsel adds that it was a fit case for remand for re-trial of the accused. The learned State counsel supported the judgment of the learned trial Court by adopting the reasons already given therein.
9. We have heard the learned counsel for the parties at considerable length and have read the whole record with care with their assistance. We are of the view that charge under sections 394/34 and 324/34, P.P.C. Was not proved in accordance with law. It is in the evidence that Doctor Ahmad Ishaque was not produced by the prosecution to prove the injuries on the person of Ghulam Mohy- ud-Din and Zaheer Ahmad P.Ws. In order to prove the medical reports, Amjad Ali, a Junior Clerk in the office of the Police Surgeon, Lahore, was produced by the prosecution. The evidence deposed by this witness is not acceptable in law because no attempts were made by the prosecution to prove that Dr. Ahmad Ishaque was summoned to appear before the Court as a witness but was not available at the relevant time. The record shows that a short order was passed by the learned trial Judge on 28-10-1991 showing that Dr. Ahmad Ishaque had gone abroad on one year's leave and as such his attendance could not be procured without an amount of delay which appeared to the learned Court unreasonable. The learned trial Judge, therefore, proceeded to accept the secondary evidence of Amjad Ali, P.W.3 in the ease ignoring the law on the subject. In our view, the reasons given by the learned trial Judge for non-production of Dr. Ahmad Ishaque are not sufficient to meet the legal requirements of this case. Indeed, it was a serious legal flaw in the case of the prosecution which was apparent on the very face of record. Law requires that a summon should have been issued to Dr. Ahmad Ishaque for his appearance before the Court. The evidence of the process-server should have been recorded to show that Dr. Ahmad Ishaque had gone abroad and as such was not available to depose evidence. This legal procedure was not adopted by the learend trial Judge in that behalf. Accordingly, we proceed to exclude the evidence of Amjad Ali, P.W.3 from consideration. The irresistible conclusion is that the injuries on the person of Ghulam Mohy-ud-Din and Zaheer Ahmad were not proved according to law. In consequence, the conviction recorded against the appellants under sections 394/34 and 324/34, P.P.C. Is set aside.
10. We also hold the veiw that the prosecution has failed to prove its case against the appellants under section 7(1)(c) of the Surrender of Illicit Arms Ordinance, 1991, inasmuch as the prosecution did not at all lead any evidence to show that the weapons of offence were kept by the appellants without having any licence for them and so no questions were put to the appellants in their statements under section 342, Cr.P.C. That they were holding the weapons in question without licences. We hold that no conviction and sentence could be recorded against the appellants under this charge as well in view of this state of affairs. The conviction and sentence of the appellants under section 7(1)(c) of Surrender of Illicit Arms Ordinance, 1991, is set aside and they are acquitted of this charge as well.
11. However, we have been persuaded to hold that offence of robbery was proved to have been committed by the appellants on the day of occurrence. In support of the charge, the prosecution produced Zaheer Ahmad, P.W.1 and Ghulam Mohy-ud-Din, P.W.2. Their evidence was materially supported by Muhammad Naeem P.W.5 and Riaz Ahmad P.W.6. Ghulam Mohy-ud-Din stated that Sajjad Ahmad and Khalid Mahmood appellants while armed with pistols came at the spot when he and his companions were counting their money in the Verandah of the office of the Forest Department near the Duty-Free Shop. Zaheer Ahmad P.W.1 deposed that at pistol point, he was deprived of a sum of Rs,5,000 and the National Identity Card by Sajjad Ahmad, appellant. Simiarly, Khalid Mahmood appellant deprived Ghulam Mohy-udDin of a sum of Rs,1,50,000 and his National Identity Card at pistol point. It is proved that both the appellants were caught red-handed at the spot by the prosecution witnesses alongwith their weapons. There are no reasons to disbelieve Zaheer Ahmad P.W.1 and Ghulam Mohy-ud-Din P.W,2. The recovery of the pistol and the currency notes from the possession of the appellants was also proved beyond any reasonable doubt. The appellants are thus guilty of commission of the offence of robbery which definitely falls within the mischief of section 390, P.P.C.
12. The objection that the evidence of the P.Ws. Was not recorded by the learned trial Judge on oath is not such a fatal flaw which may vitiate the whole trial and as such it is repelled. The irregularity is certainly curable under section 13 of the Oaths Act, 1873. In support of this view Zeb-ul-Haram's case (PLD 1991 FSC 1) was referred by the learned State Counsel. Learned counsel for the appellants has drawn our attention that form of oath has been amended by the High Court and as such Courts are bound to record evidence after administering oath to the witnesses according to the form of oath. The latest form of oath as prescribed by the High Court is as follows:--- "I swear by Allah Almighty that the evidence that I shall give before the Court in this case/matter shall be the truth; the whole truth and nothing but the truth; that I shall conceal nothing from the Court; and that if I say anything which is untrue or conceal anything, the wrath of Allah may fall on me."
' All the Courts are now bound under law to administer oath to the witnesses in the aforesaid form.
13. The defence plea having been taken by the appellants does not inspire confidence inasmuch as no documentary evidence was produced to show that Sajjad Ahmad, appellant No.1, had in fact given a sum of Rs,20,000 in advance to Zaheer Ahmad, complainant with a view to purchase dollars from him. We cannot believe the defence version that without the issuance of a receipt, the appellant Sajjad Ahmad would have paid a big amount of Rs,20,000 to Zaheer Ahmad, complainant, in order to purchase dollars without knowing him previously. No evidence was led by the appellants in support of their plea. This being so, we proceed to reject the defence version outright. We are persuaded to accept the prosecution version as given by Zaheer Ahmad, P.W.1 and corroborated by Ghulam Mohy-ud-Din, P.W.2, Muhammad Naeem P.W.5 and Riaz Ahmad P.W.G.
P.W.1 and P.W.2 are the affected witnesses. Their presence at the spot cannot be doubted inasmuch as it was also admitted by the appellants that they were present at the spot. Similarly, Muhammad Naeem P.W.5 appears to be a natural witness. He has given sufficient explanation to be present at the spot at the time of occurrence. He is an Auditor in the office of the Forest Department. He used to sit in the late hours of the night in order to complete his account-sheets. We, therefore, hold that there is sufficient corroboration to the evidence of Zaheer Ahmad P.W.1 and Ghulam Mohy-udDin P.W.2. The evidence of these witnesses demonstrates beyond any shadow of doubt that they were robbed of their money and National Identity Cards at pistol point on the day of occurrence. The result of the above discussion is that the prosecution was able to prove the charge under section 392/34, P.P.C. Against the appellants beyond reasonable doubt, and as such, we proceed to maintain the conviction of the appellants on the said charge and sentence them to seven (7) years' rigorous imprisonment and a fine of Rs,20,000 (Rupees twenty thousand) each. In default of payment of fine, they will undergo further rigorous imprisonment for two years each. However, they shall be entitled to the benefit of section 382-B, Cr.P.C. With this modification in the conviction and sentence, the appeal is partly allowed.
14. While parting with this judgment, we may observe that the learned trial Judge was not satisfied with the investigation of this case and we think rightly so, as it was conducted in a slipshod manner.