' MIAN ABDUL KHALIQ, J.---The criminal appeals have been filed against the judgment dated 12-4- 1992 passed by Mr. Fakhar-ud-Din Siddiqui, Judge, Special Court for Suppression of Terrorist Activities (constituted under the Special Courts) Act, 1975, Bahawalpur Division, Bahawalpur whereby the appellants were convicted and sentenced to undergo ten years' R.I. Each and a fine of Rs,Two lacs each, in default of payment of fine to further suffer three years' R.I. Each in case F.I.R.
197/91 dated 13-7-1991 registered at Police Station Kot Samaba, District Rahimyar Khan under sections 392/411, P.P.C.
2. Shabbir Ahmad, absconder-accused, alongwith appellants was tried in absentia and was also sentenced as stated above. This judgment shall dispose of Cr. Appeal No,SC(T)10/92/BWP and Cr.A.
No, SC(T) 11/92/BWP as both of them arise out of the same judgment.
3. Briefly, the prosecution case is that P.W. 1, Mukhtar Ahmad on 13-7-1991 at the spot made the statement Exh.PA to the effect that he was working as Munshi of Syed Azhar Ali Shah, owner of National Petrol Pump service in the area of Chak No, 78-P and on 13-7-1991 he alongwith Abdul Hakeem P.W.2, employed as Oilman, and Muhammad Aslam P.W. 3 were present at the petrol pump at about 3-00 p.m. On Motor Cycle Yamaha 100 c.c. Red colour without registration number, three persons, one of them blackish colour, thin body, long stature wearing light blue colour Shalwar-Qamiz with .7 mm rifle; the second one, blackish colour, thin body wearing cream colour Shalwar-Qamiz, armed with .30 bore pistol and third one wheatish colour of middle body wearing white colour Shalwar-Qamiz armed with .30 bore pistol, all with muffled faces, reached there. The person taller in height armed with .7 mm. Rifle fired. The other two armed with pistols entered the show room and demanded the keys of the cash drawer. The complainant refused on which one of the accused gave a slap on his face and due to fear, he handed over the keys. The accused took out Rs, 9,568 cash with identify card, a driving licence of Habib Ullah, Driver and also forcibly got removed Seiko-5 wrist watch from the wrist of the complainant. Both the accused made firing in the show room all the three accused were speaking rustic Punjabi. The accused present outside who was armed with .7 mm. Klashnikov addressing the accused in the show room said "Amjad hurry up". The accused after locking the complainant in the show room while firing bolted the show room and went on motor-cycle towards Rahimyar Khan. The above mentioned P.Ws. Had witnessed the occurrence and due to fear, the P.Ws. Did not go after the accused. The complainant had sent for owner of the petrol pump from Rahimyar Khan. The empties were present at the spot and the complainant was waiting for the owner of the Petrol Pump.
4. P.W.12, Muhammad Yousaf, S.H.O., P.S. Kot Samaba had reached the spot after the receipt of information and recorded statement Ex. PA of the complainant P.W.1 and sent the same to the police station through Muhammad Sarfraz, Constable where on its basis formal F.I.R. Exh.PA/1 was recorded. P.W.12 secured two empties of .7 m.m Klashnikov type from near the place of occurrence from the courtyard and from the show room five empties of .30 bore pistol P.1/1-5 vide memo Exh.PB attested by P.Ws.2 and 3. The appellants were formally arrested on 29-7-1991 by P.W.12, Muhammad Yousaf who after completion of investigation had challaned the appellants.
5. The appellants were formally charged under section 392, P.P.C. To which they denied and claimed trial.
6. The prosecution had examined 13 P.Ws, in all to substantiate its case. P.W. 1, Mukhtar Ahmad, complainant narrated the facts mentioned by him in complaint Ex. PA and also stated that on 4-8- 1991 after the recovery of National Identity Card and driving licence from the accused, he had identified the same. P.W.2, Abdul Hakeem, an eye-witness had stated that on 13-7-1991, he alongwith P.W.3, Muhammad Aslam and Mukhtar Ahmad P.W.1 was present at the National Petrol Pump when three persons on a Yahmaha motorcycle reached and Abdul Jabbar accused was armed with Klashnikov who made firing outside the Petrol Pump. The accused looted Rs,9,568, wrist watch, his National Identity Card and driving licence of Habib Ullah Driver. After the incident, the police reached and secured five empties P.1/1-5 and two big empties Exh.P.2/1-2 from the spot vide memo Ex. PB thumb marked by him.
' P.W.3, Muhammad Aslam, eye-witness had stated that on 13-7-1991 at about 3-00 p.m. He was present with P.Ws. 1 and 2 at the spot where three persons reached. Abdul Jabbar, accused made firing outside and called by name Amjad All appellant in the cash room who also made firing and demanded cash from P.W.1 and on his refusal, one of them gave him slap on his cheek. The accused looted Rs,9,568, wrist watch, national identity card of Mukhtar Ahmad and a driving licence of Habib Ullah, Driver and after the incident, the accused went away on their motor-cycle towards Rahimyar Khan and after about 10/15 minutes, the police reached the spot and collected five empties Ex.P. 1/1-5 and two big empties Ex. P.2/1-2 and secured the same vide memo Exh. PB, thumb marked by him. PW. 3 also joined the investigation on 4-8-1991 when Amjad Ali appellant while in police custody led the police party to his house and got recovered Rs,330 Exh. P.3/1-6 (three notes of rupees one hundred and three notes of rupees ten), one national identity card P. 4 and wrist watch which the police secured vide memo Exh.PC, thumb marked by him. On the same day, Abdul Jabbar, appellant, led the raiding party to his house and got recovered Rs,345 Exh. P.6/1-8 (one five-rupee cote, 4 notes of Rs,10 and three notes of Rs,100) in his presence., Abdul Jabbar also produced licence of Habib Ullah Driver which was secured vide memo Exh.PD thumb marked by him.
' Habib Ullah, P.W.4 on 4-8-1991 joined the police investigation and in is presence Amjad Ali, appellant led to the recovery of Rs,330 Ex. P.3/1-6 notes of rupees one hundred and 3 notes of rupees ten), one national identity and one wrist watch in his presence and the police secured the same vide iemo Exh. PC attested by him. On the same day, Abdul Jabbar, appellant while in police custody led to the recovery of currency notes of Rs,345 Ex. P.6/1-8, one driving licence P.7 of P.W.4 which was secured by the police vide memo Exh.PD attested by him which was snatched from the National Petrol Pump on the day of occurrence. P.W.4 was driver of the owner of petrol pump, Azhar All Shah and was not present at the time of occurrence and his licence was lying there.
' P.W.5, Dilawar Hussain on 13-7-1991 i,e, on the day of occurrence was standing at Pull Sultanpur waiting for the bus and witnessed all the three accused i,e, Abdul Jabbar, Amjad All and absconder coming on motor-cycle from Khanpur side and going towards Rahimyar Khan at about 3-15 p.m.
And had also witnessed that Abdul Jabbar was sitting in centre on the motor-cycle having something wrapped on his hand seemed like weapon. The accused were previously known to him and thereafter he had come to know that all the three accused had committed dacoity and after looting ran away on motor-cycle to Rahimyar Khan. He went to the place of occurrence and narrated the story as stated above.
' P.W.6, Zahid Farooq joined the police investigation on 18-7-1991 when Abdul Jabbar appellant led to the recovery of Klashnikov, one leather bag containing 54 live rounds P.10/1-54, one magazine P.11 containing 15 live rounds Exh. P.9/1-15 and 32 currency notes of rupees one Exh. P.14/1-32 and 3 notes of rupees two Exh. P.15/1-3, wrist watch Exh. P.13 motor-cycle P.16 without registration number which the police secured vide memo Ex. PE attested by him. Amjad Ali, appellant led to the recovery of pistol P.17 from one Almirah and six bullets Exh. P.18/1-6, driving licence of Rashid Farooq and photo-copy of national identity card of P.W.6 Exh. P.19 which were secured by the police vide memo.
Exh. PF attested by him. P.W.7, Muhammad Akhtar joined the police investigation and the police secured driving licence Exh. P.20 and pistol Exh. P.21 from the house of the absconder accused Shabbir Ahmad vide memo Exh.PG attested by him. P.W.8 on 29-7-1991 delivered one sealed parcel in the office of Forensic Science Laboratory, Lahore in tact on 31-7-1991.
' P.W.9, Younis Ali, H.C. While working as Moharrir had received complaint Exh.PA on 31-7-1991 and had, on its basis, correctly recorded F.I.R. Exh. PA/1 and on the same day, the investigating officer delivered him one sealed parcel which he sent to the Forensic Science Laboratory which after objection was returned and again was sent through P.W.8 on 31-7-1991 after removing the objection. The Investigating Officer had handed over to him three more sealed parcels which he kept in Malkhana and thereafter handed over the same to P.W.10 for delivery to the concerned quarter. P.W.10, Imam Bakhsh on 18-8-1991 had delivered three sealed parcels in the office of Forensic Science Laboratory, Lahore in time. P.W.11, Manzoor Ahmad has received written proclamation Exh.PH in respect of the absconder/accused Shabbir Ahmad which could not be traced and made report Exh. PH/1.
' P.W.12 Muhammad Yousaf, S.H.O. Inspector on 13-7-1991 received information of the present occurrence and at 3-45 p.m. Recorded the statement Exh.PA of P.W.1 and sent the same to police station for registration of the case. He secured two empties of Klashnikov P.2/1-2 and five empties of pistol P.1/1-5 from the place of occurrence and made it into a sealed parcel and secured vide memo Exh.PD, and complete the formalities at the spot.
' Appellants Abdul Jabbar and Amjad All were arrested by B-Division Police and P.W.12 formally arrested them on 29-7-1991 and on 4-8-1991 Amjad All appellant in police custody led to the recovery of Rs,330 Exh. P.3, national identity card, wrist watch P.5 which he secured vide memo Ex.
PC. Abdul Jabbar, appellant on the same day while in police custody had led to the recovery of Rs,345, Exh.P.6/1-8 and one driving licence Exh. P.7 of Habib Ullah and P.W.12 secured the same vide memo. Exh.PB. On 10-8-1991, he secured the deadly weapons recovered by B-Division Police and sent the same to Forensic Science Laboratory P.W.12 prepared report under section 173, Cr.P.C. And challaned the appellants. P.W,13, Muhammad Iqbal, Si. Had submitted an application before the Ilaqa Magistrate for obtaining the proclamation order of Shabbir Ahmad.
7. The appellants Abdul Jabbar and Amjad All when examined under section 342, Cr.P.C. Denied the prosecution evidence against them and stated that the police had created a fabricated case against them. They produced D.W.1, Ashiq Hussain, D.W.2, Muhammad Siddiq D.W.3, Abdul Jabbar D.W.4, Muhammad Yousaf in defence and also made statements on oath under section 340(2), Cr.P.C.
8. D.W.1, Ashiq Hussain stated that the police took away Abdul Mbar, Appellant on 13-7-1991 at about 9/10-00 p.m. From the shop of D.W.1 and at the time of the arrest of the appellant, Shabbir Ahmad absconder/accused ran away. D.W.1 further stated that Shabbir Ahmad absconder co-accused of Abdul Jabbar had been involved in criminal cases due to enmity with Sangi, P.W. D.W.2, Muhammad Siddiq stated that police arrested Abdul Jabbar, appellant on 13-7-1991 at about 9/10- 00 p.m. When he was sitting at the shop of D.E.3. Abdul Jabbar appellant appeared as D.W.3 to state that the was arrested by the police on 137-1991 from his shop at about 9. 10/00 p.m. Shabbir Ahmad, absconder/accused was sitting with him and after witnessing the police party, he ran away and he was falsely arrested by the police and was innocent. D.W.4, Muhammad Yousaf deposed that he was a welder helper in Lever Brothers at Rahimyar Khan. Amjad appellant was working as Fitter/helper in the same factory and on the day of occurrence i,e, 13-7-1991, Amjad Ali, appellant was present on duty from 7-00 a.m. To 9-00 p.m. Amjad Ali, appellant made statement on oath as D.W.5 and stated that he was a Pipe Fitter/helper in Lever Brothers and remained on duty on 13-7-1991 from 7-00 a.m. To 9-00 p.m. Alongwith D.W.4 and after duty hours, both of them came to the house of D.W.4 for dinner when he was arrested by the police.
9. We have heard learned counsel for the appellants, learned State counsel and have perused the record. The learned Defence counsel has vehemently urged that the appellants are innocent, they have been falsely involved and moreover their names are not mentioned in the F.I.R. And no identification parade was held and the recoveries have been planted on them.
10. No doubt, the names of the appellants are not mentioned in the F.I.R. Exh.PA/1 recorded on the basis of complaint Exh. PA, The descriptions and contours of the body of the appellant have been given in the F.I.R. Exh. PA/1, the weapons carried by them, the names of the witnesses, the manner in which the occurrence took place and the role played by each of the accused. The appellants after the commission of the offence escaped from the scene with the robbed amount, i,e, identity card of P.W.1, his Seiko watch, driving licence of P.W.4, Habib Ullah, motor-cycle unregistered Yamaha, red colour on which they had come and committed the robbery. P.W.12, Muhammad Yousaf, Inspector S.H.O. On receipt of the information of the present occurrence had reached the spot and had drafted complaint Exh.PA on the statement of P.W.1, Mukhtar Ahmad, complainant at 3-45 p.m.
On the same day i,e, after about 45 minutes of the occurrence wherein all the details of the occurrence had been narrated by P,W.1. No doubt, the appellants were not previously known to the PWs mentioned in F.I.R. And had muffled their faces when they arrived at the scene on Yamaha, red colour unregistered.
' It is pertinent to mention here that P.W. 5, Dilawar Hussain on 13-7-1991 at about 3-00 p.m.
Alongwith Abdur Rashid, Chairman Zakat and Ushr Committee was standing at Pull Sultan and waiting for the bus and witnessed the appellants alongwith the absconder accused coming on a red motor-cycle from Khanpur side and going towards Rahimyar Khan at about 3-15 p.m. And P.W.5 also witnessed that Abdul Jabbar, appellant was sitting in the centre having something wrapped in his hand. The accused were previously known to him. Thereafter he had come to know that all the three accused had committed dacoity and after looting, they ran away with motorcycle towards Rahimyar Khan. He went to the place of occurrence and had narrated the scene.
' It is important to mention here that on 13-7-1991, the day of occurrence, P.W.12 recorded the statement of P.W.5, Dilawar Hussain under section 161, Cr.P.C. Wherein he had stated as mentioned supra. The accused were previously known to him and he alongwith Rashid Ahmad P.W. (given up) had identified the accused at the relevant time going on the motor-cycle Yamaha, red colour without number. P.W.5, Dilawar Hussain and Rashid Ahmad PW (given up) had given the descriptions of the clothes of the appellants as was stated by P.W.1 in Exh.PA. The F.I.R. Exh.PA/1 was recorded on the basis of the statement of P.W.1 with promptitude i,e, the occcurrence is alleged to have taken place at about 3-15 p.m. On 13-7-1991, P.W.12 received the information of the occurrence, reached the spot and recorded the statement at 3-45 p.m. And sent the same to the police station where F.I.R. Exh.PA/1 was recorded by Younis Ali P.W.9, H.C. On the same day at 4-30 p.m. The distance between P.S. And the place of occurrence is about twelve kilometre. The F.I.R.
Exh.PA/1 had been recorded with promptitude, without deliberations, preliminary investigations and contained the minute details of the incident. The names of the accused had come to the knowledge of the police and the P.Ws. On the day of occurrence i,e, 13-7-1991 as is evident from the statements of P.W.5 and Rashid Ahmad PW (given up) i,e, recorded on the same day under section 161, Cr.P.C. In the circumstances, there was no need of any identification parade of the accused- appellants.
11. The appellants were arrested at first by B-Divisional Police and P.W.12 Muhammad Yousaf formally arrested their in the present case on 29-7-1991, obtained their personal remand, interrogated them and on 4-8-1991, Abdul Jabbar, appellant made disclosure and led the police party to his house and after entering the room from a box lying with the western wall from underneath the clothes took out a plastic envelope which contained three currency notes of Rupees 100 denomination Exh. P.6/1-8, four currency notes of Rs,10 each denomination and driving licence P.7 of Habib Ullah PW. 4 which were secured by P.W.12 vide memo Exh.PD attested by P.W.3, Muhammad Aslam and P.W.4, Habib Ullah P.W.12 had interrogated Amjad Ali, appellant who made a disclosure and led to the police party to his house and after entering the room, he unlocked the trunk and from underneath the clothes took out plastic envelope which contained Rs,100 currency notes Exh.P.3, national identity card of Mukhtar Ahmad, complainant, P.W. 1, Exh. P.4, and a Seiko wrist watch Exh. P.5 which were secured by P.W.12 vide memo Exh.PC attested by P.W.3, Muhammad Aslam and Habib Ullah P.W.4.
It is not out of place to mention here that P.W.1 complainant in his statement Exh.PA had stated about his identity card P.4, Seiko wrist watch P.5, and driving licence P.7 of Habib Ullah P.W.4 which were taken away by the appellants from the place of occurrence. No doubt, the currency notes P.6/1-8 and P.3 secured at the instance of the appellants Abdul Jabbar and Amjad All do not bear any signature, initials or other signs of distinction and if the recovery of the same is thrown away, what about the recovery of P.4, national identity card of P.W.1, his Seiko wrist watch P.5 at the instance of Amjad All and driving licence of P.W.4 of Habib Ullah at the instance of Abdul Jabbar, appellant. P.4, P.5 and P.7 were stated by P.W.1, Mukhtar Ahmad, complainant in his statement Exh.PA on the basis of which F.I.R. Exh.PA/1 was recorded which had already been found to be prompt, without mutual consultation and deliberations. The statements of P.Ws.1 to 5 as well as P.W.6 in whose presence the police had secured Klashnikov P.8, magazine P.11 containing 15 live bullets P.9/1-15, 54 live bullets P.10/1-54, 32 notes of Re.1 each P.14/1-32, three currency notes of Rs,2 each Exh. P.15/1-3, a wrist watch P.13 and motor-cycle Yahmaha, red colour without registration number, Exh.P.16 at the instance of Abdul Jabbar, appellant which were secured by B-Division Police vide memo Exh.PE on 10-7-1991 attested by him are corroborative. P.W.6 had also witnessed the recovery of his identity card P.19, pistol .30 bore P.17 containing 6 live bullets P.18/1-6 secured by S.H.O. B-Division on 18-7-1991. The complainant P.W.1 and P.Ws.2 to 6 had no animus against the appellants and no motive whatsoever to falsely involve them in the present case. They have made their statements in a straightforward manner and reliance can be placed on their testimony and moreover P.W.12, Muhammad Yousaf, Inspector S.H.O. Had no enmity against the accused- appellants. The eye-witnesses had corroborated each other and the defence had failed to point out any material discrepancy or dishonest improvements in their statements. The omission on the part of the learned trial Judge to separately record the question-answer of the appellants while framing formal charge had not caused any miscarriage of justice to the appellants and the defect, if any was curable under section 537, Cr.P.C. With no re-action on the validity of the trial.
12. Pursuant to the above discussion, we are of the view that the appellants were rightly convicted and sentenced by the trial Court. Learned counsel for the appellants had prayed for leniency in the matter of sentence. We think that the sentence awarded to the appellants is really harsh and while maintaining the conviction, we reduce the sentence to imprisonment from ten years' R.I. Each to seven years' R.I. Each. The fine of Rs, Two lacs each is reduced to Rs,10,000 each in default of the payment of fine to further suffer R.I. For six months each. The appellants shall also be extended the benefit of section 382-B, Cr.P.C.
With the above modification in the sentence, the appeal is dismissed.
Sentence reduced.