' Muhammad Siddique, Nazir Ahmad Shah, Asghar Ali Shah and Taj Muhammad, were tried by Additional Sessions Judge, Lodhran, in case F.I.R. No,41 of 1996, registered under sections 395/412, P.P.C., read with section 17 of Offences Against Property (Enforcement of Hudood) Ordinance, at Police Station Jalla Arain, on 4-4-1996, on the statement of Nazar Hussain (P.W.2).
2. Learned trial Judge, vide judgment dated 28-8-2001, held all of them guilty of having committed offences under sections 395 and 412, P.P.C. There were sentenced as follows:--
(a) Under section 395, P.P.C.
' R.I. For 5 years each, plus to pay a fine of Rs,10,000 each, in default whereof to undergo R.I. For one year each.
(b) Under section 412, P.P.C.
' R.I. For 5 years each, plus to pay a fine of Rs,10,000 each, in default whereof to undergo R.I. For one year each.
' Sentences of imprisonment on both counts, have been ordered to run concurrently.
' Nazir Ahmad Shah had run away, after hearing the judgment. Warrants of arrest were issued against him for being lodged in jail to undergo the sentences.
' It may be mentioned here that Hashim Ali put to trial alongwith the accused named above, had absconded during trial. As the police could not arrest him in spite of warrants of arrest. He was declared absconder after going through the legal requirement.
3. Muhammad Siddique has challenged his conviction and sentences vide Criminal Appeal No,240/L of 2001.
' Jail Criminal Appeal No,60/I of 2002 has been filed by Muhammad Siddique, Asghar Ali and Taj Muhammad, challenging their conviction and sentences.
' As both the appeals have arisen from the same judgment, they are being disposed of together.
4. According to F.I.R., Nazar Hussain, used to ply Corrolla Car No,1202/MND, Model 1976, as employee.
Two persons (whose identification marks are mentioned in the F.I.R.) came and booked his taxi from Shuja Abad Taxi Stand, for Dunya Pur, on payment of Rs,450. They set out for Dunya Pur. When they reached near Shuja Abad Chhoti Canal three persons (whose identification marks are also mentioned in the F.I.R.) signalled the driver to stop the car. The accused already sitting with him told him that they were their Companions, so he boarded them also. When they reached in the area of village Desi, the accused told the driver to stop the car on a side. One of them who was armed with a pistol, brought him out and took him to a crop nearby. After tying his feet and hands with a string and binding his mouth with a cloth, he threw him there and went away threatening that if he will raise noise, he will be shot at. Thereafter, they took away the car. Nazar Hussain succeeded in untying his feet. Thereafter, he came to the road. Muhammad Akram Raan and Altaf Hussain, P.Ws., residents of Khanpur Qazian, came there. They untied his hands and mouth.
Thereafter, they proceeded to the police station for lodging the F.I.R.
' Nazar Hussain also stated that the accused who was wearing black coloured clothes, had removed his wrist-watch, his driving licence, identity card and a sum of Rs,1,150. The other man had removed papers of the car. He claimed that he will be able to identity the accused on being shown to him. He produced string and Patka, with which the accused had bound him.
5. Alamdar Hussain, S.H.O., after despatching statement Exh.P.A. To the police station, for registration of case, visited the spot and prepared site plan Exh.P.J. String and Safa, produced before him by Nazar Hussain, were taken into possession by him vide memo. Exh.P.K. On receipt of information through wireless from the police of Police Station Chishtian Saddar, about the all of the accused, recovery of car and weapons of offence, he went there on 15-5-1996. Police of Police Station Chishtian, handed over to him case property of this case i,e, Car No,1202/MND, Registration Book Rs,150 cash, wrist-watch, an amount of Rs,2,000, Driving Licence No,59390/BWR, an amount of Rs,134 and Rs,78 and Insurance Book of the recovered car. He took all those things vide memo.
Exh.P.H. The accused who had already been arrested by the police of Police Station Chishtian, were brought by S.H.O. To Police Station Jalla Arain. Challan was submitted against them, after completion of necessary investigation.
6. Statements of 6 P.Ws. Were recorded at the trial.
' Nazar Hussain, complainant, while appearing as P.W.2, repeated the facts, got recorded by him in the F.I.R. During cross-examination, he denied the suggestion that no such occurrence had taken place. He denied the suggestion that six persons had stopped him on the way and snatched his vehicle. He denied the suggestion that he had not made statement before the police.
7. Altaf Hussain, P.W.3, corroborated the statement made by Nazar Hussain to the extent that they had seen Nazar Hussain on the road with his hands and mouth tied, whereupon he had told them that some persons had snatched his car, wrist-watch and documents of registration. He stated that they had accompanied him to the police station to lodge the report. Police met them on way and recorded his statement. He stated that police had taken the string produced by Nazar Hussain, into possession vide a memo. Which he had attested. During cross-examination, he also denied the suggestion that he had made a false statement.
8. Muhammad Siddique, Head Constable, P.W.4, stated that he was posted at Check Post Khatrian, in the area of Police Station Chishtian alongwith Bashir Ahmad, A.S.-I. And four constables. He stated that they were all on duty, there, during night between 4/5-4-1996. A red coloured Car No,1202/MND, came there from the side of Hasilpur. They stopped the car. Five persons, were sitting in the car, which was being driven by Muhammad Siddique, present in Court. He stated that three other persons who were also in the car, are present in Court. They brought him out. On being interrogated, they confessed that they had snatched the car. Bashir Ahmad, A.S.-I. Took the car into possession vide memo. Exh.P.B. .32 bore revolver alongwith six bullets, a wrist-watch and insurance book, found in possession of Muhammad Siddique were taken into possession by Bashir Ahmad, A.S.-I. Vide memo. Exh.P.C. Registration Book of the vehicle and a sum of Rs,250 found in possession of Taj Muhammad, by the A.S.-I., were taken into possession vide memo. Exh.P.D. .12 bore pistol, alongwith five bullets,a wrist-watch and a 'sum of Rs,200 found in possession of Asghar Ali Shah, were taken into possession by him vide memo. Exh.P.F. A knife, driving licence and a sum of Rs,134 recovered from Hashim Ali were taken into possession by him vide memo. Exh.P.F. It was further alleged that subsequently one Gul Muhammad who was also resident of the same village, where his brother was residing, came to the complainant and disclosed that Noor Rahman was not present in the village and had also taken away, had gone else where, with him the daughter of the complainant. On receipt of the above information the complainant rushed to village Arsal and found that Noor Rahman had actually disappeared. Consequently the report was lodged . In the report however, it was further alleged that Noor Rahman had abducted complainant's daughter with the help of Yousaf son of Ahmad. Noor Muhammad son of Ayub Khan, Ahmad son of Madam and Lal Zada son of Khanzada. In pursuance of the report an inquiry was conducted by the police within the purview of section 156(3), Cr.P.C., after obtaining necessary permission. On 20-10-1997 the complainant got recorded his statement under section 161, Cr.P.C. On 1-11-1997 the abductee to got recorded her statement under section 164, Cr.P.C. Wherein she stated that she against her will was engaged to Khan Said and in order to get her consent she was handed over by her father, to her uncle namely Noor Rahman. Subsequently, she was abducted by said (sic) four live bullets, a knife and a sum of Rs,75 recovered from Nazar Shah were taken into possession by the A.S.-I. Vide memo. Exh.P.G. He stated that he had attested all those memos. During cross-examination, he stated that he was posted at the said check post a month before the occurrence. He expressed ignorance whether the accused had been involved in any case registered at their police station. He gave out that the car had been taken into possession under section 550, Cr.P.C. He denied the suggestion that recovered articles were fake and planted on the accused. He denied the suggestion that accused were already under arrest prior to that day.
9. Abdul Waheed, Constable, who appeared as P.W.5, stated as follows during examination-in- chief:-- "On 5-5-1996 I was posted at Police Station Jalla Arain as constable. On the same day I accompanied the Investigating C !Tiger Alamdar Hussain alongwith Khalil Ahmad, H.C. To Police Station Saddar Chishtian, where we were handed over by M.H.C. Of said police station a Car No,1202/MND Model Corolla with red colour alongwith Registration Book of same car and Insurance Book. Two different amounts out of which one was Rs,2,000 and the other was of Rs,78 alongwith wrist-watch were also handed over to Investigating Officer in my presence. Driving Licence was also handed over to Investigating Officer by M.H.C. Of Police Station Saddar, Chishtian. Recovery memo. Exh.P.H. Was drafted by the Investigating Officer which was signed by me in token of its correctness."
10. Alamdar Hussain, Inspector, who had recorded statement Exh.P.A. Of the complainant, sent the same to the police station for registration of case, visited the spot, repared site plan, recorded statements of the P.Ws. And had taken into possession case property of this case from Police Station Chishtian i,e, Car No,1202/MND, Registration Book. Rs,150 cash, wrist-watch, an amount of Rs,2.000, Driving Licence No,59390. a sum of Rs,134, a sum of Rs,78 and Insurance Book of the car vide memo. Exh.P.H., appeared as P.W.6 and stated those facts in detail. During cross-examination, he stated that he was on patrol duty when the complainant met him. He expressed ignorance whether the accused had been put to identification parade by police of Police Station Chishtian. He stated that case property had been handed over to him by police of Police Station Chishtian on 15- 5-1996. He admitted that the said property was not available on that date (the day he was making statement i,e, 16-1-2001). He stated that he does not remember the exact date when he had brought the accused from Police Station Chishtian for the purpose of investigation. He denied the suggestion that he had made statement in order to strengthen the prosecution case. He denied the suggestion that he had made a false statement.
11. Appellants during their statements under section 342, Cr.P.C. Denied the prosecution case and pleaded innocence. They took up the plea that as the police had failed to trace out the real culprits of the case and that, they had been involved falsely in this case.
' Nazir Ahmad Shah who had absented at the time of announcement of judgment, had also taken up the same plea.
' He had produced in defence Exh.D.B., copy of the statement made by Nazar Hussain. Complainant in this case and Exh.D.C. An affidavit sworn by Nazar Hussain.
' The remaining appellants had not produced any evidence in defence.
12. Learned counsel for the appellants, after having gone through the evidence, contended that there was no evidence on record to maintain the conviction of the appellants under section 395.
P.P.C. In that, they submitted that neither the complainant nor any other witness had stated that they had identified the accused during any identification parade or in any other manner. Learned counsel contended that none of the witnesses stated that accused present in Court, were the same who had robbed the car and other articles from the complainant.
' Learned counsel, however, did not challenge the conviction of the appellants under section 412, P.P.C. However, he prayed for reduction in the sentences awarded to the appellants for conviction under section 412, P.P.C.
' Learned Assistant Advocate-General, assisted by Miss Nausheen Taskeen, Advocate, have not challenged the contentions of the learned counsel for the appellants vis-a-vis their convictions under section 395, P.P.C. However, he has defended conviction of the appellants under section 412, P.P.C.
13. I have gone through the evidence and considered the arguments of the learned counsel for the appellants.
' There is no doubt that prosecution had utterly failed to produce any evidence, connecting the appellants with the commission of offence under section 395, P.P.C. As noted above, no identification parade was held. The complainant who had appeared at the trial did not state while making statement that the accused, who were present in Court, are the same who had robbed from him the car and other articles. That being so, conviction of the appellants under section 395, P.P.C. Is, not maintainable, so the same is set aside.
14. Evidence of recovery of car and other articles from the appellants and their co-accused, was deposed to by Muhammad Siddique, Head Constable (P.W.4) was then posted at Check Post Khatrian. He claimed that Bashir Ahmad, A.S.-I. With whom, he was present at the post. Had stopped the car, taken into custody five persons namely Muhammad Siddique, Nazir Ahmad.
Asghar Ali. Taj Muhammad and Hashim Ali and had taken into possession Car No,1202/MND and the other articles recovered from each of them. He also claimed that he had attested the recovery memos., vide which the car and other articles had been taken into possession. He had no concern with the complainant. He was not that Investigating Officer as such he was not to earn any credit for arresting the accused. He made a very simply straightforward statement. His statement finds corroboration from the testimony of Abdul Waheed, Constable P.W.5, and Alamdar Hussain, Inspector P.W.6, who stated that police of Police Station Chishtian had handed over to him Car No,1202/MND alongwith other articles listed above.
' Muhammad Siddique, H.C. Had also stated at the trial that Muhammad Siddique and the three other accused standing in the Court, were the persons who were sitting in the car alongwith one other person and recoveries had been effected from them.
' That being so, a case under section 412, P.P.C., stands established against the appellants.
' However, since the articles other than weapons, recovered from the appellants and other co- accused were not identified by the complainant to be his property, they cannot be held liable to having been found in possession of those articles as robbed ones.
' Since the number of the car finds mention in the F.I.R. And also there are documents pertaining to the same, the appellants are held liable for having been found in possession of the said articles.
Keeping this fact in view, I feel sentence of R.I. For 3 years each, plus to pay a fine of Rs,5.000 each, in default whereof to undergo S.I. For 6 months each, will meet the ends of justice. .
' Benefit of section 382-B, Cr.P.C. Shall be given.
' Since the articles other than the car and the weapon were not claimed by the appellants, also, to be their property, the same shall be confiscated in favor of the State and disposed of accordingly.
' Both the appeals are disposed of in above terms.