' IFTIKHAR HUSSAIN CHAUDHRY, J.---Criminal case F.I.R. No, 118, dated 24-11-1993 was registered at Police Station Noorpur Thal, District Khushab, under sections 395/365/109/412, P.P.C., on the report of Pehlwan, who was driver of Truck, No,DN-7980. According to Pehlwan, he loaded 110 bags of grams from village Brangam, and was proceeding towards Sargohda. Yaqoob and Zakir P.Ws.
Accompanied him at the relevant time and goods were to be delivered to Allah Yar & Co., Sargodha. When the truck reached in the area of Chak No,14-MB, the complainant stopped the truck in order to give way to another truck when three persons armed with carbine and guns surrounded the truck apprehended all the three and shifted them to second truck with the help of two other persons. According to the complainant, a sum of Rs,2,500 was snatched from him by the accused and Rs,200 from Zakir P.W. And thereafter, they were kept at different places for two nights and a day. The complainant was released on 19-11-1993 whereafter F.I.R. Exh.P.C. Was recorded on 24-11-1993. On 25-11-1993, a supplementary statement of the complainant was also recorded which was to the effect that his driving licence was also snatched by the accused and also produced Dhoties Exhs.P.96 to p.98 and pieces of ropes Exhs.P.99 to P.101 before the police. The complainant also claimed that he the witnesses could identify the accused. Later, Jandanwala Police recovered on 18-11-1993, Truck No,DN-7980 and 15 bags of grams and took the same into possession under section 550, Cr.P.C.
2. The . Police subsequently arrested Muhammad Ejaz son of Muhammad Amir, Muhammad Ejaz son of Noor Muhammad, Mumtaz, Muhammad Akbar and Sarfraz. In the course of investigation on pointation of Muhammad Ejaz 95 bags of grams were recovered from Sher Muhammad who was involved in the case with the allegation that they abetted the commission of offence.
3. The accused were found guilty in the course of investigation conducted and report under section 73, Cr.P.C. Was submitted against them in the Court of Magistrate with powers, under section 30, Cr.P.C., at Noorpur, where 12 witnesses were examined by the prosecution. Thereafter, the Trial Court found that on account of charge under section 365, P.P.C., the case was not triable by it, and the case was transferred to Special Court, Anti-Terrorism, Sargodha Division, Sargodha. The prosecution led remaining evidence.
4. The accused when examined under section 342, Cr.P.C. Claimed that they were involved in the case at the instance of one Ehsan Ullah owner of Truck No,PRH-8599. The Trial Court believed the prosecution case against Muhammad Ejaz son of Muhammad Amir, Muhammad Mumtaz, Ejaz son of Noor Muhammad, Akbar and Sarfraz and convicted them under section 395, P.P.C. Sher Muhammad was convicted under section 412, P.P.C. Ejaz and others were sentenced to seven years rigorous imprisonment each with a fine of Rs,10,000 each. All the five accused were also awarded seven years rigorous imprisonment each and a fine of Rs,10,000 each for conviction under section 365, P.P.C. Sher Muhammad was sentenced to seven years' R.I. And fine of Rs,10,000. Different sentences awarded to the convicts were directed to run concurrently vide order, dated 23-2-1999 passed by Judge Special Court Anti-Terrorism, Sargodha.
5. The convicts appealed.
6. Learned counsel for the appellants contended that Pehlwan, truck driver as a matter of tact wanted to misappropriate grams (chick peas) which he was required to deliver to a trader at Sargodha and he had, as a matter of fact, off loaded the goods being carried by him and when he was unable to dispose of the goods, he in order to save himself came to the police with a plea that the accused had robbed him of the goods being carried by him. It was submitted that the accused had no criminal history; were never involved in case of like nature and there, really, was no occasion for them to have committed the offence. It was also submitted that second truck in which the goods were statingly taken away by the accused was never recovered by the police and that shows that the allegation levelled against the petitioner by the prosecution were false. It was submitted that as far as Sher Muhammad was concerned, one Ejaz had led to the recovery of 95 bags from the Dera of Sher Muhammad and there was no case against Sher that he committed the offence under section 412, P.P.C. Learned counsel for the State opposed the impugned judgment.
7. We have heard the learned counsel and have perused the record. The allegation against the accused is that they intercepted a truck at gun-point, removed goods being carried in a truck which goods were subsequently recovered from the Dera of Sher Muhammad. It has been pleaded on behalf of the accused that they were involved by one Ehsan Ullah as they had enmity with him and moreover it was also argued that Pehlwan wanted to misappropriate the goods being transported by him and he, as a matter of fact, off loaded the goods ;mil no offence as alleged ever was committed by the accused. Pehlwan and his companions had alleged that the accused had took them away, had kept them in confinement for two nights and a day and then they were let off. The alleged abductees were not recovered by any third party including the police. Nothing incriminating was recovered from the accused which would have substantiate the allegations being levelled against the accused that they had abducted the complainant and others. The complainant and the P.Ws. Had appeared before the police and thereafter, had produced loin cloth and certain strings before the police of their own. With that sort of evidence brought on record in respect of charge under section 365, P.P.C.; it is difficult to agree with the learned counsel for the State that no offence under section 365, P.P.C. Was made out to prove charge under section 365, P.P.C. Against the accused.
8. The complainant or the witnesses had no enmity with the accused and their plea that they were involved in the case at the instance of one Ehsan Ullah does not appeal to any reason. There was no occasion for the complainant and the witnesses to have falsely involved the accused in a serious case. In the absence of enmity between the parties, it is difficult to reject the testimony of the witnesses. Therefore, we are of the view that the prosecution had succeeded to establish its case against the accused for offence under section 395, P.P.C. The looted goods were recovered from the Dera of Sher Muhammad and he had not advanced sufficient explanation as to how the goods were found at his Dera. The accused after looting the property obviously had taken the same to the Dera of Sher Muhammad and we are of the view that charge under section 412, P.P.C.
Against Sher Muhammad stood established.
9. The question of sentence to be awarded has agitated in our mind. The appellants have no criminal history and, therefore, we are inclined to take a lenient view in the matter of sentence to be awarded to them. The conviction of Sher Muhammad for offence under section 412, P.P.C. Recorded by the Trial Court is maintained and he is sentenced to imprisonment already undergone by him with a fine of Rs,5,000. In case of default, Sher Muhammad shall suffer one month's simple imprisonment.
10. As far as the other convicts were concerned their conviction under section 365, P.P.C. As recorded by the Trial Court is maintained. However, they are each sentenced to four years' R.I. And a fine of Rs,5,000 each with benefit of section 382-B, Cr.P.C. Other convictions and sentences are set aside. I1. With the above modification in sentence awarded to the appellants, the appeal is dismissed.