' Appellants have assailed the judgment delivered by the Court of Additional Sessions Judge, Turbat, on 13-5-1997 whereby they have been convicted under section 395, P.P.C. Read with section 20 of the Offence Against Property (Enforcement of Hudood) Ordinance 1979, and each of them has been sentenced to undergo R.I. For 5 years and to pay fine of Rs,1,000 each and in case of default of payment on the part of any of the appellants he has to undergo S.I. For fifteen days. They have also been extended the benefit of section 382-B, Cr.P.C.
2. One Musa reported at Police Station Guwadar on 12-5-1994 at 6.00 p.m. That he is resident of Karachi, but since about 6/7 years he is working as a labourer in Guwadar. Since about three years he sits in the shop of his brother at Beti Road Guwadar. On 8-5-1994 at about 9-55 p.m. While he was going to his house after closing his shop, six unknown muffled persons who were wearing white shirt and shalwar caught hold of him and after having shown him a churri they took the search of his pocket. They took out from his pocket Rs,350 and one golden ring from his finger weighing about one tola and from his wrist they took out his watch and also a key belonging to the shop. Out of them three persons remained catching hold of him where as three persons after opening the door of the shop with the key from the cash box they stolen Rs,3500 two boxes of pista, two packets of Glucose Biscuits and made good their escape. Then the complainant reported the matter to his councilor Ghulam Rasool who promised with him that he will get the F.I.R. Registered but on the date of report he learnt that it was not registered: He has stated that he has no suspicion on any person and lodge report against unknown six persons.
' After investigation police challaned 4 appellants whereas the co-accused Dost Muhammad remained absconder. All the four appellants were charged under Article 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 which charge was read over and explained to them in ' Balouchi Language which they understood and all of them pleaded not guilty.
3. To prove its case prosecution examined 7 witnesses. Masood Ahmad (P.W.1), Tehsildar, has deposed that he was Tehsildar of Jeioni. On 26-4-1995 police produced before him appellant Abdul flamed for recording statement under section 164 Cr.P.C. After having completed the mandatory procedure, he recorded the confessional statement of the abovementioned appellant and sent him to judicial lock-up. He has proved this confessional statement as Exh.P/1 and his certificate as Exh.P./1-B. Missal Khan (P.W.2), A.S.I., has deposed that this case was registered on 12-5-1994 but the investigation of this case was handed over to him in 1995 and at that time appellant Muhammad Bukhsh was already in custody. During the investigation this appellant Muhammad Bukhsh confessed his crime and stated that appellants Abdul Hameed, Lal Bukhsh, Murad Buklish and absconding accused Dost Muhammad were his accomplices. Police had brought him from Hab Chowki and recorded his statement under section 161, Cr.P.C. Noor Ahmed (P.W.3), has deposed that on 12-5-1995 complainant Muhammad Moosa came at police station and made the report of the dacoity committed upon him. On the basis of that report he recorded F.I.R. Which is Exh.P/3-A and has been signed by him. Bashir Ahmed (P.W.4), A.S.I., has deposed that S.H.O., Noor Muhammad was on leave when the record was handed over to him on 21-5-1994. In the meanwhile Rafique and Said Jan were arrested due to suspision but later on they were released as there was no proof against them. Later on Noor Muhammad S.H.O. Returned from the leave and the records have been handed over to him. Muhammad Hussain (P.W.5), S.I. Of police had deposed that he had arrested Abdul Hameed and Lal Bukhsh in another case of theft of an aircoridition from the fish harbour. Before this arrest -there was already a case of theft registered by Moosa Bangali and in that case also these two appellants were involved. Muhammad Murad (P.W.6) S.I.P. Has deposed that the investigation of this case was handed over to him on 8-4-1995. 'Appellant Lal.
Bukhsh had already nominated three other appellants in his confessional statement under section 164 Cr.P.C. And at that time all the three remaining appellants were in the jail at Lasbaila. These appellants were brought from Lasbaila to Gawadar on 21-4-1995. On 24-4-1995 the confessional statements of appellants Abdul Hameed and Murad Bukhsh were got recorded., by him and they had also nominated Muhammad Bukhsh. The site plan was prepared by Muhammad Anwar S.H.O.
Whose signature has been identified by this witness sand has exhibited the site plan as Exh .P. /6-A . After completing the investigation he challaned the appellants which challan is Exh.P/13.
Muhammad Moosa (P.W.7), A.S.I., has deposed that at the time of occurrence of this incident he was posted at jeoiny. Later on he was transferred to Gawadar. Another case was also registered.
There in 'which Lal Bakhsh and two other accused were already arrested. During investigation in that another case Lal Bakhsh confessed that he had committed the present offence in the company of appellant Hameed and Murad Bakhsh. He got the statement of Lal Bukhsh recorded under section 164, Cr . P . C . On 2-1-1995 by the Magistrate II Class, Gawadar. In his statement under section 342, Cr.P.C. Appellant Abdul Hameed has denied all the specific questions and he also denied that he had made confessional statement before the Magistrate. He has declined to be examined on oath and has not produced any witness in his defence. 'Appellant Murad Bakhsh has also taken the same line in his statement under section 342, Cr.P.C. Appellant Muhammad Bakhsh and Lal Bakhsh have also taken the same line in their statements under section 342, Cr.P.C.
' Since the complainant Muhammad Moosa son of Abdullah was not traceable and - many summons were issued against him by the trial Court but he could not be served, therefore, the Court examined Muhammad Qasim P.C., as C.W.1 who deposed that in spite of the best efforts he could not find him Gawadar and people informed him that he has run away to some unknown place. He has exhibited the summons returned by him as Exh.0/1-A. Usman Ghani (C.W .2), P. C . , has also deposed that he was handed over the summons to be served on the complainant Muhammad Moosa but he could not trace him.
4. I have heard the counsel for appellants and State. The counsel for appellants has contended, firstly, that Exh.B/1-A is confessional statement of Abdul Hameed, one. Of the appellants which stands retracted and it was the confessional statement made before the Magistrate Second Class which cannot be considered as legal evidence under the provisions of section 164, Cr.P.C.
Subsection .(i) of section 164, Cr.P.C. Reads as under:-- "Section 164. Power to Record Statements and Confessions: -(1) Any Magistrate of the First Class and any Magistrate of the Second Class specially empowered in this behalf by the Provincial Government may, if he is not a police officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial."
' A plain reading of this subsection not only empowers Magistrate of the First Class but also Magistrate of Second Class especially - empowered in this behalf by the Provincial Government that he may record any statement or contusion made to him in the course of an investigation. The Magistrate of Second Class who recorded confessional statement of appellant Abdul Hameed is Masood Ahmed who has appeared in the trial Court as P.W.1. This witness was made to undergo detailed cross by three Advocates for three defence appellants, but not a single suggestion has been brought on the record to prove that this witness, being Magistrate of the Second Class, was not specially empowered by the Provincial Government to record any statement or confession under section 164, Cr.P.C. Consequently I have come to the conclusion that the counsel for appellants has impliedly admitted that this witness was empowered by the Provincial Government of Baluchistan to record any statement or confession under section 164, Cr.P.C.
5. The second contention of the counsel for appellants that the occurrence had taken place on 8- 5-1994 but it was reported 4 days later on 12-5-1994 and this delay of 4 days in lodging the F.I.R. Is fatal for the story of prosecution. In fact the delay in lodging the F.I.R. Has been explained by the complainant Moosa, plausibly, in the following words:-- "I had intimated the Councillor Ghulam Rasool about this incident who had ensured me that he shall report but on the date of his own report he came to know that such report was not lodged and, therefore, he came forward and lodged the F . I. R . "
' The complainant, who appears to be a Manager of small grocery shop belonging to his brother Muhammad Ali, and is a person who originates from Malbary community of Karachi but for the time being he was working in Gawadar. He appears to be a person who fears everything and that is why he was not coming forward himself to lodge the report and had requested the Councilor to do so. From the depositions of the Court witnesses also it appears that later on h.. Ran away, probably toward Karachi to avoid appearance in the Court. In view of this position the delay in lodging F.I.R. Is not fatal in the circumstances of the present case. Hence this contention is rejected.
6. It has also been contended that under the provisions of Article 40 of the Qanun-dShahadat Order, 1984, it is incumbent that any information received from accused being in the custody of police officer, so much of such information, Whether it amounts to be a confession or not, as relates distinctly to the fact thereby discovered may be proved. In the present case the following information was received from appellant Abdul Hameed during his confessional statement under section 164, Cr.P.C. While he was in custody. His statement under section 164, Cr.P.C. Is reproduced as below: {{URDU TEXT}} ' It has been contended that in F.I.R. The complainant Moosa Malbary had not made a reference of two slapped made on his cheek. Then Moosa has made reference to a churri through which he was threatened but practically no churri had been recovered. Then the stolen material in its details is different in the confessional statement in comparison to the report and all this according to the counsel for appellant has not been proved. I do not agree with this contention of the appellants, in view of the fact that first of all during his statement under section 342, Cr.P.C. Appellant .Abdul Hameed has retracted from his confessional statement and, therefore, provisions of Article 40 of Qanun-e-Shahadat Order, 1984 are not attracted in the circumstances of the present case.
Secondly, from the evidence brought on the record, it appears that the appellants are habitual thieves and are involved in many other cases of theft. Consequently this contention is repelled.
7. The learned counsel for the State has contended that the prosecution has proved its story beyond reasonable doubt and that the appellants have been dealt with leniency so far as the award of sentence is concerned. The appellants have been convicted under section 395, P.P.C. For having committed dacoity which offence attracts maximum punishment imprisonment for life and the minimum for four years. Appellants have been awarded sentence of five years each and a fine of Rs,1 ,000 each, and in default of payment of fine S.I. For fifteen days each.
8. In view of the above discussion, I do not find any reason to interfere with the impugned judgment. Consequently the impugned judgment is upheld, and the appeal is dismissed.