Complainant Muhammad Arif, Sub-Inspector, Police Station; Golra Sharif, Islamabad was investigating case of F.I.R. 29/90 registered in the said Police Station under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sections 454 and 380, P.P.C. On 31-3-1990 he alongwith some other police officials was taking said Noor, accused of that case to Takhat Bai, District Mardan in connection with investigation in a white Toyota Corolla, Model 1981 Car No.IDA 6237 which was being driven by Captain Haider A.I Khan. This car was followed by Suzuki Carry No.IDC 2705. When they reached .Near Kheshki Octroi Post on the Mardan/Nowshera Road at 5-30 p.m. Another Toyota Mark-I car bearing No.SGE 2300 overtook them and stopped in front of the first car. Three accused armed with Klashuikovs came out from the second car and aiming Klashnikovs at the chest of Capt. Haider A.I Khan they snatched keys from him. One of the accused also snatched S.M.G. Rifle No. 180 alongwith 20 cartridges from Constable Muhammad Afzal who was also sitting in the said car. Thereafter, all the 3 accused decamped in both the aforesaid cars and went away. The complainant did not know the accused but he could identify them. He submitted a written complaint of the occurrence in Police Station, Nowshera Khan at 6-00 on the same day, which was incorporated in F. I. R. No. 176 at the said Police Station.
2. Accused Abdul Wahab was arrested on 22-4-1990 and accused Nasim was arrested on 7-6-1990 and accused Luqman Shah alias Malang is absconding. Identification parade of accused Abdul Wahab was held on 18-4-1990 and that of accused Nasim on 12-6-1990 and both of them were identified by complainant P.W.1 Muhammad Arif, A.S.-I. Accused Abdul Wahab made a confession on 24-4-1990 and accused Nasim made a confession on 11-6-1990. A white coloured Toyota car was recovered on 13-8-1990 which had been left unattended at G.T. Road near Nowshera Amangarh Bridge near Ghee Mill. However, this vehicle was not identified by the owner Capt. Haider A.I Khan. The rifle snatched from Muhammad Afzal, F.C. Was recovered from the house of absconding accused Luqman Shah alias Malang on 7-6-1990, which was duly identified by the said F.C.
3. After investigation both accused Abdul Wahab and Nasim were sent up for trial before Sessions Judge, Nowshera, who charged both of them under section 17(3) of the Hudood Ordinance as well as under section 412, P.P.C. Both the accused pleaded not guilty to the charges and claimed trial. 12 witnesses were produced by the State in proof of the prosecution case whereas both the accused made depositions under- section 342, Cr.P.C. But none of them made any deposition on oath nor produced any defence evidence.
4. After the conclusion of the trial the learned Sessions Judge by judgment dated 12-11-1995 convicted both the accused under section 392/412/34, P.P.C. For both the offences each of the accused was separately sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.10,000 or in default to further undergo rigorous imprisonment for one year.
5. Feeling aggrieved by the aforesaid conviction and sentence both the convicts had come up to this Court with the appeal in hand, sent from jail.
6. I have heard learned counsel for the parties at length who also lead me through the entire record of the case.
7. The prosecution evidence against the appellants consists of ocular testimony of P.W. 1 Muhammad Arif, Sub-Inspector and P.W.2 Muhammad Afzal, F.C., the confessional statements of both the appellants and the recovery of case property.
8. So far as the ocular testimony is concerned, it is established that the complainant Sub-Inspector was an independent and competent witness. He was proceeding on the day of occurrence on Takhat Bai, Mardan Road in connection with investigation of a case registered under F.I.R. No.29/90 in Police Station Golra Sharif. The vehicle in which he was travelling alongwith other police officials was driven by Capt. Haider A.I Khan, the complainant of that F.I.R. During their journey the hold up of the case took place on the Mardan/Takhat Bai Road and three accused armed with Klashnikovs snatched the car from Capt. Haider A.I Khan and one rifle from Muhammad Afzal, F.C. The occurrence took place at 5-30 p.m. In the evening when there was sufficient day light and the identification of the accused did not pose any problem. Even otherwise the complainant was an experienced police officer and he could mark the features of the culprits at once and without any difficulty. It was, therefore, very easy for him to identify both the appellants in the identification parade. He was an old police officer, must have dealt with numerous accused during his service and it was not at all difficult for him to mark and remember the features of any accused and then to correctly identify. Even otherwise no animus of any against the appellants was proved against this witness. It was contended on behalf of the appellants that the car had been snatched from Capt. Haider A.I Khan and he was neither produced as a witness nor was made to identify the culprits. It was also contended by the learned counsel for the appellants that the said Captain was star witness of the case and he should have been produced to identify the culprits as well as the case property. This argument is beside the point because P.W.1 Muhammad Arif, Sub-Inspector was not acting as an Investigating Officer in the case in hand but he was acting as actually complainant and his identification of the appellants was more than sufficient.
9. The perusal of confessional statements of both the appellants, copies of Exh.P.W.12/1 and Exh.P.W.12/5, would clearly reveal that both the appellants had confessed the commission of the crime. Mr. Khalid Hussain Khan, M.I.C., who appeared as P.W.12, established that the appellants had made confessional statements voluntarily and he had observed all the legal formalities before taking down their confessional statements. The recovery of the snatched rifle and the identification of the culprits by P.W.1 Muhammad Arif, Sub-Inspector were more than sufficient to corroborate the confessional statements of both the appellants. In their depositions under section 342, C.P.C. Both the appellants only asserted that "It was incorrect" to the question whether they had made the confessional statements. They neither alleged any coercion, torture or any inducement for making the confessional statements. They contended themselves by saying only this much that it was incorrect. This assertion did not prove any undue measure for obtaining the confessional statements from them. In the circumstances these statements were made voluntarily and without any inducement or coercion.
10. Although one car was recovered unattended on the road but it could not be proved that it was the case property. The F.I.R. Neither mentioned any particular of the snatched car nor owner was produced to identify the vehicle. It could not, therefore, be proved that the recovered car was the actually case property. However, the rifle snatched from P.W.2 Muhammad Afzal, F.C. Was recovered from the third accused who is since absconding. The recovery of the rifle was also a very substantial piece of corroboration of the confessional statements of the appellants, as well as the ocular testimony.
11. In the end the learned counsel for the appellants contended that no offence under section 412, P.P.C. Could be proved against the appellants and their conviction for the said offence was unwarranted. Section 412, P.P.C. Pertains to the offence of dishonestly receiving stolen property in the commission of dacoity and since the snatched rifle had allegedly been recovered from absconding accused Luqman Shah alias Malang, the appellants could not be convicted and sentenced for the said offence. The learned counsel for the State conceded this legal position.
12. From the above discussion, I have come to the conclusion that the offence under section 392.
P.P.C. Was proved against both the appellants beyond any doubt whatsoever. However, their conviction and sentence under section 412, P.P.C. Was unwarranted. The learned counsel for the appellants also contended that the sentence was harsh. It was a daylight robbery where force was used in the shape of deadly fire-arm and a car and Government weapon were snatched by the culprits. They had committed a very heinous crime and in the circumstances no leniency can be shown to them in the matter of sentence.
13. The not result of the above discussion is that the conviction and sentence of the appellants under section 392, P.P.C. Are upheld while their conviction and sentence under section 412, P.P.C. Are set aside and they are acquitted of this offence. The appeal only succeeds partially. They shall however, be entitled to the benefit under section 382-B, Cr.P.C.