MUHAMMAD SHAHID Versus THE STATE

This judgment will dispose of Criminal Appeal No. 1560 of 2000 filed by Muhammad Shahid, appellant, who was convicted and sentenced by learned Judge Special Court, Anti‑Terrorism Lahore‑IV, Lahore vide his judgment dated 31‑10‑2000 to undergo seven years' R.I. with fine of Rs.10,000 in default 6 months' S.I. under section 381‑A, P.P.C. and three years' R.I. alongwith of Rs.5,000 in default 3 months' S.I. under section fine 411, P. P. C . Both the sentences were ordered to run concurrently with the benefit of section 382‑B, Cr.P.C.

2. Occurrence in this case had taken place on 14‑8‑2000 at 4‑00 p.m. within the jurisdiction of Police Station Hudyara at a distance of 4/5 K.Ms, while the matter was reported to the police on 18‑8‑2000 at 9‑30 a.m. by Muhammad Sarwar complainant and the formal F.I.R. Exh.P.A/1 was recorded by Shan Elahi, H.C.

3. Precisely stating facts of the prosecution case are that on 14‑8‑2000 at about 4‑00 p.m. Muhammad Sarwar complainant parked his motorcycle Yamaha 100 cc, outside his house and went inside. After sometime when the complainant came out, his motorcycle was missing. It was stated by the complainant that' some unknown person had stolen his motorcycle. He himself tried to locate but that could not be found. Hence this case.

4. After registration of the F.I. R. Shafqat Waqar, A. S.‑I. P. W.4 on 18‑8‑2000 inspected the place of occurrence and prepared rough site‑plan Exh.P.C. On 2‑8‑2000 he arrested the accused/appellant and took into possession motorcycle of the complainant vide memo. Exh.P.B then he recorded the statements of the P. Ws. under section 161, Cr.P.C. After completion of the investigation, the accused/appellant was challaned to face to the trial.

5. At the trial, prosecution in order to prove its case produced five witnesses in all, thereafter, learned Public Prosecutor closed the prosecution case then .the statement of the appellant was recorded under section 342, Cr.P.C. He also appeared in his own defence as required under section 340(2), Cr.P.C. Appellant also produced in his defence Shamas Din, Haji Sultan Khan and Nawab Din as D.Ws. 1, 2 and 3 respectively. After conclusion of the trial, the accused/appellant was convicted and sentenced as mentioned above.

6. Learned counsel for the appellant at the very out set submits that defence had admitted the recovery of motorcycle but in some other way, that in fact appellant was related to the complainant and he took the motorcycle with the permission of the complainant, that appellant was below 18 years of age at the time of occurrence. Also adds that appellant is the first offender, that no case under section 381‑A, P.P.C. is made out against the appellant, that appellant has been awarded maximum sentence by the learned Trial Court, that he is behind the bars for the last one year and four months.

7. On the other hand, learned counsel for the State admits that no case under section 381‑A, P.P.C. is made out against the appellant but submits that a case under section 411, P.P.C. is fully proved against the appellant. He supports the judgment of the learned Trial Court to that extent.

8. I have heard learned counsel for the parties. In the instant case, appellant had admitted before the leaned Trial Court during trial the recovery of motorcycle belonging to the complainant. The question which is for determination is whether the appellant had stolen the motorcycle or he was receiver of stolen property. In this regard, section 381‑A, P.P.C. is reproduced below:‑

"381‑A. Theft of a car or other motor‑vehicles .‑‑‑Whoever commits theft of a car or any other motor vehicle, including motorcycle, scooter and tractor, shall be punished with imprisonment of either description of a term which may extend to seven years and with fine not exceeding the value of the stolen car on motor vehicle. "

The perusal of the above said section shows that the same offence is not made out against the appellant. As far as, minority of the appellant is concerned, that the appellant because no application to the Trial Court was submitted by the appellant during the trial that case may be sent to Juvenile Court as was below 18 years of age at the time of occurrence. Recovery has been admitted by the appellant, case has been fully established against the appellant under section 411, P.P.C. as no case under section 381‑A, P.P.C. is made out so I set aside the conviction of the appellant under section. 381‑A, P.P.C. which is not made out. As far as conviction of the appellant under section 411, P.P.C. is concerned, that is maintained but about the sentence think the period which the appellant has already remained in jail would be sufficient to meet the ends of justice, because he is behind the bars for the last one year and four months. I order accordingly.

So far as fine under section 411, P.P.C. is concerned, that is, also set aside because under section 411, P.P.C. the maximum sentence is three years, or with fine, or with both. Benefit of section 382‑B, Cr.P.C. is also granted to the appellant. He is in jail and he shall be released forthwith if not required to be detained in any other case.

H.B.T./M‑1323/L Order accordingly.