' Fida Hussain son of Sultan and Zulfiqar Ali son of Allah Bakhsh, appellants, were tried in case F.I.R.
No,304 of 2000 Exh.P.C./1, registered at Police Station Kot Mubarak, on 20-8-2000, for an offence under section 392, P.P.C. For having committed robbery of motorcycle alongwith cash and other articles.
2. Abdul Sattar P.W.3 reported the incident to Muhammad Irshad Shah, S.-I., on 20-8-2000 at about 4-30 p.m., when he was present at Bukhari Chowk on patrol duty, who reported the complaint Exh.P.C. The same was sent to Fayyaz Hussain P.W.4, Head Constable, Muharrer, who registered the aforereferred F.I.R. Exh.P.C./1 at 4-55 p.m,
3. It was stated in the F.I.R. That on 1$-8-2000 at about 8-00 p.m. The complainant was on his way back to his house driving his motorcycle Honda CD-70 Model 1996 Registered No,4253/DGG and when he reached near Adda Aliwala situated near Bukhari Chowk he was stopped by two persons, who were also riding on a Motorcycle CD-70. These two persons were identified by the complainant as Fida Hussain and Zulfiqar Ali, appellants. It is further stated that at the time of occurrence Fida Hussain was armed with a pistol and Zulfiqar Ali was armed with a kalashnikov. After stopping Abdul Sattar complainant, Zulfiqar Ali pointed his kalashnikov towards complainant and the other accused snatched the key of the motorcycle belonging to the complainant. Fida Hussain accused searched the complainant and took away identity card, driving licence, receipt of the motorcycle and cash worth Rs,1,960. Thereafter, both the accused left on the motorcycles. It is also stated that the complainant went to his house and informed the matter to his relatives. They started searching for the accused and also went to the house of the accused, who promised to return the motorcycle but as they did not return the same, the matter was reported to the police.
4. The accused were found guilty during investigation and were sent to face trial in the Court of Ch. Muhammad Hussain Maken, Judge,Special Court for Suppression of Terrorist Activities (Special Courts) Act, 1975, Dera Ghazi Khan.
5. The appellants denied the charge and claimed to be tried. The prosecution in support of its case produced four witnesses. P.W.1 Mukhtar Hussain, Constable, appeared and stated about the registration book of the motorcycle, which was produced by the complainant and was taken into possession vide recovery memo. Exh.P.A. P.W.2 Rasheed Ahmad, S.-I. Appeared and stated that on 13-9-2000 the appellants were already under the custody in lieu of any other case registered against them, led to the recovery of motorcycle Registered No,4253/DGG belonging the complainant from Baithak of Fida Hussain accused and the same was taken into possession s ide recovery memo. Exh.P.B. He also stated about the investigation of the case. P.W.3 Abdul Sattar, complainant, testified on oath about the whole occurrence as narrated in the F.I.R., while P.W.4 Fayyaz Hussain, Head Constable appeared and stated about the registration of formal Exh.P.C./1.
6. The accused in their statements under section 342, Cr.P.C. Stated that they were innocent and nothing was recovered from them. They have been falsely involved in this case by the police in order to show their efficiency with the collusion of complainant. Neither the appellants appeared as witness in their own defence under section 340(2), Cr.P.C. Nor they led any evidence in their defence.
7. The learned trial Court after conclusion of the trial convicted both the appellants under section 392, P.P.C. And sentenced each of the appellants to undergo rigorous imprisonment for three years with a fine of Rs,10,000 each. In default of payment of fine both the accused were to further undergo S.I. For three months. Benefit of section 382-B, Cr.P.C. Was extended to the appellants. It was also observed by the trial Court that the sentence in the instant case awarded to Fida Hussain would run concurrently with the sentence awarded to him vide judgment dated 11-6-2001, in the case F.I.R.
No,512 registered at Police Station Saddar, D.G. Khan and F.I.R. No,179, registered at Police Station Kala. It was further ordered that Zulfiqar Ali, appellant, was also convicted and sentenced in case F.I.R. No,512 registered at Police Station Saddar, D.G. Khan. His sentence would also run concurrently with the sentence awarded in the present case. Through the instant appeal the aforereferred judgment has been challenged.
8. The learned counsel for the appellants has frankly stated that he would not press this appeal on merits and would ask for reduction in the amount of fine.
9. On the other hand, the learned counsel appearing on behalf of the State has stated that as the conviction was not challenged, he would not object the reduction of fine as it was the discretion of the Court.
10. I have heard the learned counsel for the parties and gone through the record. The learned counsel for the appellants is justified in the circumstances in not challenging the conviction as it has been noticed that P.W.3 Abdul Sattar, complainant of the case, gave a straightforward version of the incident. He implicated both the appellants in his statement, who were armed with deadly weapons at the time of commission of robbery. Neither this witness is inimical towards the appellants nor it is in the evidence that the complainant was under any influence of the police, so as to oblige them by involving innocent persons in police case. The identification of the appellants by P.W.3 has also not been challenged at all. The delay in reporting the matter to the police has already been explained as firstly the complainant and his other companions went to the house of the appellants for return of the motorcycle, who promised that they would return the same. It is in - common knowledge that the police remains reluctant to register cases for the offences falling under the category of robbery and dacoity, as it reflects on their performance. P.W.3 complainant of the case stood test the cross-examination and nothing could be brought on record to show that he had any reason to involve the appellants in a false case. The motorcycle of the complainant was robbed on 18-8-2000 and was recovered on 13-9-2000 after about a month. So the stance taken by the appellants that the case was cooked up by the police to show their performance loses ground because the complainant reported the matter on 20-8-2000 and nothing is on record to show that during the period lapsed between 20-8-2000 to 43-9-2000, the motorcycle of the complainant remained with the complainant himself or at the police station. Not even a bald statement has been made to that effect. P.W.2 and P.W.3 have also testified about the recovery of the motorcycle from the Baithak of Fida Hussain, appellant. In these circumstances, the prosecution has proved its case beyond doubt, therefore, I maintain their conviction and sentence of imprisonment awarded by the learned trial Court. However, I have noticed that the appellants have suffered a long time in jail, the motorcycle has already been recovered and delivered to the complainant and the appellants did not cause any injury to the complainant at the time of robbery, therefore, I am inclined to reduce the amount of fine from Rs,10,000 to Rs,1,000 each. In case of non-payment of fine, the appellants would further undergo simple imprisonment for 15 days each. Benefit under section 382-B, Cr.P.C. Already extended to the appellants by the trial Court is maintained:
11. With the modification in the amount of fine and the sentence in default of payment of fine, this appeal is dismissed.