MUHAMMAD WARIS Versus THE STATE
RIAZ AHMED, J.‑‑ Appellants Muhammad Waris son of Muhammad Boota aged 13/20 years, Muhammad Ramzan son of Muhammad Din aged 22/23 years and Naeem Ullah son of Abdullah aged 29/30 years were tried by Special Court for Speedy Trials at Gujranwala, on the charge under section 392, P.P.C. for having committed the robbery, whereby the complainant Syeed Basit Ali under the fear of instant death was deprived of Rs. 1,400 and a wrist watch. Vide judgment dated 26‑11‑1987, the Special Court found the appellants guilty on the aforesaid charge, and thus the appellants were convicted and sentenced to undergo R.I. for a term of ten years each, and to pay a fine of Rs. 2,000 each, or in default of the payment of fine, to suffer further R.I. for a term of two years each.
2. Aggrieved by their convictions this appeal has been filed by the appellants under section 12 of the Special Courts for Speedy Trial Act, 1987, and we propose to dispose of the said appeal through this judgment.
3. The occurrence in this case took place on 27‑5‑1987 at 4‑45 a.m. at Gujranwala Bridge on the upper Chanab Canal within the area of village Saho Walay situated at a distance of five miles from police station Sambarial, Occurrence was reported by the complainant Syed Bast Ali P.W. 1 on 17‑6‑1987, vide statement Exh. PA. which was recorded by Muhammad Anwar Inspector Police P.W. 2 at 8.00 p.m. in the area of village Rahimpur. Said statement Exh. P.A. was sent to the police station for the registration of the case, where formal F.I.R. Exh. PA./1 was drawn by Ghulam Rasool P.W. 3 at 8‑30 p.m.
4. In brief, the complainant in his statement disclosed, that on the fateful day at about 4‑30 a.m. he was going to village Jamke Chattha alongwith his wife and children on the canal bank on his motor‑cycle. He had taken the route through the canal bank, and when he reached Bridge Gujranwala, three persons confronted him. One of them was armed with a carbine, which he was holding in one hand, while in the other hand, he was holding a revolver. The second accused was holding a carbine, and the third one had a 12 bore gun. All the three appellants at the pointation of their respective arms stopped the complainant, encircled him and started searching him. Thus, under the fear of instant death, the complainant was threatened to hand over whatever he possessed, otherwise he alongwith his wife and children would be killed. All the three appellants deprived the complainant of Rs. 1,400 which he had in his pocket, anal he was also deprived of his wrist watch. Thereafter, all the appellants ran away.
5. On 1‑7‑1987 when the complainant Syed Basit P.W. 1 was present in the District Courts at Daska, he identified the appellants who were brought there in police custody, in connection with another case. On the basis of the identification in the District Courts at Daska, the complainant was summoned at the police station, on 3‑7‑1987, where he made the supplementary statement Exh. PF nominating the appellants as the culprits who had deprived him of Rs. 1,400 and his wrist watch through robbery. T he complainant not only identified the appellants, but also identified his wrist watch and the currency notes which had been recovered from the appellants.
6. The prosecution case at the trial was, that on 3‑6‑1987, Zahoor‑ul‑Hasan ASI P.W. 4 accompanied by Muhammad Afzal SI, Muhammad Ismail SI P.W. 6 and Muhammad Ashraf ASI P.W. 5 and some other police officers had reachea at Narowali Bridge in connection with Naka Bandi of the bridge. The said police party had ambushed themselves, when at about 4 p.m, the police saw the appellants approaching the bridge on motor cycle. At the sight of the police party, the appellants tried to run away, but were apprehended. The appellants were searched and from Muhammad Ramzan appellant four wrist watches including a Seiko watch belonging to the complainant P. 1 and five currency notes of the denomination of Rs. 100 each were recovered. A carbine P. 7 was also recovered from appellant Ramzan, all these articles were taken into possession vide Memo. Exh. P.C. attested by Zahoor‑ul‑Hasan ASI P.W. 4 and Muhammad Ashraf ASI P.W. 5 and Muhammad Ismail sub‑inspector P.W. 6.
7. From the personal search of Naeem Ullah appellant, two wrist watches were recovered which is the case property of another case. A carbine was also recovered from him in respect of which another case vide F.I.R. No. 275/87 was registered against Naeem Ullah.
8. During the personal search of Muhammad Waris appellant, a carbine, case property of another case was recovered.
9. To prove its case at the trial, the prosecution placed reliance upon the sole ocular testimony furnished by Syed Basit Ali Shah complainant, and the identification of the appellants by the complainant in district Courts at Daska and also evidence as to the recovery after the arrest of the appellants on Narowal Bridge during the Naka Bandi.
10. With the. assistance of the learned counsel for the appellants and the State, we have carefully perused the entire evidence on the record, and we have also heard the various contentions raised by both the learned counsel. It was contended by the learned counsel for the appellants, that the F.I.R. in this case had been lodged with an inordinate delay, and no satisfactory explanation has been rendered to explain such delay, therefore, the prosecution case was nothing but concoction. After careful consideration of all the facts, we are of the view, that the delay in this case is not fatal to the prosecution case, inasmuch as, none of the appellants was named in the F.I.R., therefore, the question of deliberation and consultation to involve the appellants falsely in this case does not at all arise. A Hence, we repel the contention raised by the learned counsel for the appellants drawing our attention to the delay in lodging the F.I.R.
11. The next contention, raised by the learned counsel for the appellants was, that the identification of the appellants by the complainant in this case was doubtful, because it is not known as to how and under what circumstances, the complainant was; present in the District Courts at Daska. Furthermore, no explanation exists on tile record to show as to what transpired between 1‑7‑1987 and 3‑7‑1987. According to prosecution case, the complainant identified the appellants on 1‑7‑1987, and after two days, he was summoned at the police station, where he again identified the appellants as well as his wrist watch. It was thus contended by the learned counsel for the appellants that no identification had taken place, the complainant was summoned at the police B station on 3‑'7‑198 7, and he was asked to 'Identify the appellants and to name them through a supplementary statement Exh. PF. It was thus contended by the learned counsel for the appellants that the evidence as to the identification was unreliable and the appellants cannot be convicted for the offence under section 392, P.P.C.
12. After anxious consideration, we find substance in the contention raised by the learned counsel for the appellants. The evidence as to the identification of the appellants by the complainant falls short of the standard of proof as required in criminal cases to establish the guilt. The evidence does not inspire confidence, and we have no hesitation to disbelieve the same, because the perusal of the record shows tire mysterious silence of the complainant between 1‑7‑1987 and C 3‑7‑1987. In our view, the complainant only went to the police station when on 3‑7‑1987 he was summoned where he identified his watch. In this view of the matter, we hold that the offence under section 392, P.P.C. has not been made out and the prosecution has f; '‑d to establish the same beyond any doubt. Accordingly, we have no hesitation to set aside the conviction and the sentence of the appellants under section 392, P.P.C.
13. Adverting to the recoveries and the arrest of all the appellants during Naka Bandi at Narowali Bridge by the police party, the same has been proved on the record. From the personal search of Ramzan wrist watch of the complainant was recovered and the recovery memo was prepared, which was attested by the three police officers. The learned counsel for the appellants strenuously criticised '1 the recovery and stated that the same has not been proved, inasmuch as, no witness from the public was cited to prove it. We are afraid that the contention has no force because it was during the Naka Bandi when the appellants including Ramzan appellant was arrested and from their personal search various articles were recovered. Obviously, the police had no hostility towards the appellants and at that time even 0C police did not know that the wrist watch belonged to the. complainant. The police only came to know about the complainant during the interrogation of the appellants. That is why, the complainant was summoned and I he identified his .wrist watch. Hence, in our view the recovery evidence in this case cannot be doubted, and the prosecution has proved the same satisfactorily. Therefore, the evidence of the police officers who were competent witnesses inspires confidence. In this view of the matter, we hold only, appellant Ramzan guilty under section 411, P.P.C., because the stolen property, i.e., the wrist watch of the complainant was recovered from him. The appellant Ramzan failed to render satisfactory explanation about the possession of the watch with him.
14. The upshot of the above discussion‑is that the appellants are acquitted of the; charge under section 392, P.P.C., their conviction and sentence on' the aforesaid charge is hereby set aside. Appellant Ramzan as stated above is held guilty under section 411, P.P.C., therefore, he is convicted for the commission of the said offence and is sentenced to undergo RI for a term of two years and to pay a line of Rs.1,000 or in default of the payment of fine, to suffer. further RI for three months. The appellants other than Ramzan shall be released forthwith if not required in any other case.
H.B.T./M‑899/L Appeal partly allowed.