' KHALIL-UR-REHMAN RAMDAY, J.--- This is an appeal against a judgment, dated 11-2-1989 passed by the learned Special Court for Speedy Trials at Lahore whereby, Talib and Karamat had been found guilty and convicted under section 392, P.P.C., read with section 397, P.P.C. and had been sentenced to eight years' R.I. with a fine of Rs.2,000 or six months' R.I. in default thereof. Each one of them had also been convicted under section 452, P.P.C. and sentenced to five years' R.I. and a fine of Rs.2,000 or six months' R.I. in default thereof. Both the sentences were directed to run concurrently but the convicts had been disallowed the benefit of the provisions of section 382-B, Cr.P.C.
2. The two co-accused of the said convicts, namely, Humayun and Jamil had been given the benefit of doubt and had been acquitted through the same judgment.
3. The complainant in the present case is Naveed Shehryar (P.W.1) who had deposed that he was a practising lawyer at the Lahore High Court; that on 5-1-1988 while he was present in the Lahore High Court Bar Room, he had received a telephonic call at about 10-30 a.m. that some persons had entered his house situate in the Defence Society and had forcibly taken away his car and certain other articles; that he immediately rushed to his house where his wife, Mst. Shaheen Nilofer (P.W.2) informed him that while she was going out of the house in her Suzuki Car bearing No.LHV 1198 (P.4) to pick up her daughter from a nearby tuition centre at about 10-00 a.m., two persons met her at the gate of her house and told her that they had been sent by her husband to instal bulbs at the sui-gas points, at which, she drove back and took these two persons inside her house and in the meantime, two other persons entered her house through her kitchen whereafter, all four of them took out pistols and commanded her to hand over whatever was there in the house whereupon, she gave away Rs.120 which were lying in her purse besides a stereo-deck P.3, a casette player P.2, a V.C.R. and a brief-case from the house; that his wife had further informed him that the said culprits had also taken away a gold bangle P.1 which she was wearing at the time of the occurrence and had thereafter driven away in the abovementioned car after taking the keys of the same from his wife.
4. Naveed Shehryar complainant had further stated that on being so informed, he immediately went to a nearby bakery as he had no telephone connection at his residence and rang up the Emergency Police as a result of which, Walayat Hussain Inpsector/S.H.O. (P.W.9) reached the spot to whom he handed over a written application (Exh.PA) on the basis of which, formal F.I.R. (Exh.PA/1) bearing No.6/88 was recorded at Police Station, Factory Area of Lahore.
5. The said Walayat Hussain S.H.O. investigated the case till 20-3-1988 when he entrusted the investigation to Abdul Jabbar S.I. (P.W.5) on account of his transfer from the said police station.
6. On 20-3-1988, Abdul Rashid S.I. of Anti-Dacoity Staff (P.W.7) arrested the two convict-appellants alongwith the two acquitted persons from the Canal Bridge near Muslim Town, out of whom, Talib appellant led to the recovery of a stereo-deck P.3, Humayun (acquitted accused) got recovered Suzuki Car LHV 1198 (P.4) and Karamat appellant led to the recovery of a tape-recorder P.2. Nothing however, was recovered at the instance of Jamil (acquitted accused).
7. On coming to know that all these articles had been stolen from a house in Defence Society, the said Abdul Rashid Si. (P.W.7) informed the Police Station, Factory Area about the arrest of the said accused persons and the recovery of the abovementioned articles.
8. The said Abdul Rashid S.I. (P.W.7) sent the two appellants and the two acquitted accused persons to judicial lock-up on 21-3-1988.
9. Abdul Jabbar S.I. (P.W.5) reached the Anti-Dacoity Staff located in the premises of Police Station Qila Gujjar Singh on 22-3-1988 on receipt of the abovementioned information and took Naveed Shehryar complainant with him where the said complainant identified the above mentioned articles i.e. P.2, P.3 and P.4.
10. On an application made by Abdul Jabbar S.I./I.O. on 2-4-1988, Mr. Iqbal Ahmad, M.I.C. (P.W.8) was deputed to hold a test identification parade in respect of the abovementioned four accused persons which parade he accordingly held and supervised on 3-4-1988 in the premises of Camp Jail, Lahore.
11. During the course of the proceedings of this test identification, Mst. Shaheen Nilofer P.W. correctly identified Talib and Karamat appellants but failed to identify Humayun and Jamil, the two acquitted accused persons.
12. This was then the evidence with which the prosecution had gone to trial and when confronted with the same, all the four accused persons, including the present appellants denied their participation in the occurrence in question and pleaded that they had been falsely involved in the present case due to suspicion.
13. Six defence witnesses were produced at the trial who stated about various accused persons claiming that they were gentlemen and that they had no hand in the commission of the dacoity in question.
14. The learned counsel for the appellants has been heard.
15. After their arrest on 20-3-1988, Talib and Karamat appellants had been remanded to judicial custody the very next day i.e. on 21-3-1988. They remained in judicial lock-up till test identification parade had been held on 3-4-1988 i.e. within thirteen days of their arrest. Talib and Karamat appellants had been correctly identified by Mst. Shaheen Nilofer P.W.
16. Mst. Shaheen Nilofer P.W. was the lady of the house who had been surprised by the two appellants in her house on the day of occurrence. She had no illwill or animosity against the present appellants and had thus no motive to falsely implicate them in the occurrence in question.
She is an educated lady. No reason exists to doubt her testimony or her perception which had led her to the identification of the two appellants.
17. As has been mentioned above, the appellants had been sent to judicial lock-up on the very next day of their arrest and remained there till the identification parade in question had been held. No possibility thus exists of the two appellants having been shown to Mst. Shaheen Nilofer P.W. and in any case, the said appellants could not specify any occasion or place where they could have possibly been shown to the said P.W.
18. Stereo-deck P.3 and tape-recorder P.2 had been recovered at the instance of Talib and Karamat respectively and nothing exists on record to justify false plantation of these articles on the two appellants.
19. No exception in the circumstances can be taken to the finding of guilt recorded by the learned trial Court against Talib and Karamat appellant.
20.
The convictions recorded against them by the learned trial Court are, therefore, upheld. The punishments awarded to them by the learned trial Court are, also maintained.
21. The learned trial Court however, disallowed the benefit of the provisions of section 382-B of the Code of Criminal Procedure to the present appellants which, we find was not really justified.
22. Consequently, we direct that the two appellants shall be entitled to the benefit of the provisions of section 382-B of the Code of Criminal Procedure.
23. With this modification in the impugned judgment, the present appeal filed by Talib and Karamat appellants is dismissed.