ARIB AND 3 OTHERS Versus THE STATE

MUHAMMAD SHARIF, J. ‑‑ The appellants have assailed the validity of the judgment, dated 16‑12‑198' pronounced by the learned Special Judge, for Speedy Trials No. VI, Bahawalpur, who pad convicted, Shamas‑ud‑Din alias Shamso, Fayyaz Ahmad and Zulfiqar alias Bhutto appellants under section 394/34, P.P.C. and had awarded them ten years' R.I. and a fine of Rs.10,000 each or to undergo two years' R.I. in default thereof. Arib appellant was convicted under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979, and the amputation of his right hand and left foot was ordered. All these four appellants were also convicted under section 323/34, P.P.C. and were ordered to suffer R.I. for one year each and a fine Rs.1,000 each. In default of the payment of this fine, they were ordered to undergo one month's R.I. each. The entire fine, if recovered, was ordered to be paid to Malik Manzoor Ahmad complainant.

2. Munir Ahmad appellant, who has lodged a separate appeal, was convicted under section 411, P.P.C. and has been sentenced to three years' R.I. and a fine of Rs.5,000. In default of the payment of fine, he has been ordered to undergo one year's R.I. Both these appeals relate to the same incident and are being 'disposed of by means of this consolidated judgment.

3. The facts, which led to the detection of this crime, in substance, are that on 30‑3‑1987 at about 8‑30 p.m., Malik Manzoor Ahmad, Advocate, complainant (P.W.2) was sitting in the T.V. lounge of his house located at Jail Road, Rahimyar Khan, Tauseef Ahmad, Advocate, P.W.5, and Abdul Majeed P.W.6 alongwith the inmates of the house were sitting with him. The complainant had closed the main gate of his house. Somebody knocked at the main gate and the complainant sent Abdul Majeed to know who was there outside. After a short while, they saw Abdul Majeed returning to the T.V. lounge with Arib, Shamas‑ud‑Din, Fayyaz and Zulfiqar appellants. Arib appellant had kept his pistol on the temple of Abdul Majeed where" Zulfiqar and Shamas‑ud‑Din were armed with a pistol each and Fayyaz appellant was holding a dagger. The appellants gave a stern warnin8 to the P.Ws. that in case they moved they would be done to dean" Fayyaz appellant cut the telephone wires and then caught Usman aged four years, the son of Malik Manzoor Ahmad complainant, and threatened that all the ornaments and the valuables be handed over to them otherwise there was a risk of the life of the little kid. Zulfiqar and Shamas‑ud‑Din then injured Abdul Majeed P.W. with the butt of their pistols. Then they went upstairs leaving behind Arib and Fayyaz appellants, who stood there and kept brandishing their weapons towards the P.Ws.,in order to scare them. After the through search of upper storey, Shamas‑ud‑Din and Zulfiqar came down‑stairs with the golden ornaments, tape‑recorder, pocket radio and the lady wrist watches which were tied in a cloth P.16. They searched the bed room on the ground‑floor and carried an air gun therefrom. Arib appellant coerced Malik Manzoor Ahmad complainant to hand him over Rs.800 which he was keeping in his pocket. The wrist watch of the complainant was also snatched. Fayyaz appellant forcibly took the key of the car from the pocket of Tauseef P.W. and snatched a wrist watch P.16. They placed the stolen valuables in the car and tried to speed it away. The car could not be started as the P.Ws. raised hue and cry and the people from neighbourhood, namely, Shah Nawaz, Abdul Sattar, Ghulam Abbas reached the spot. At their sight, all the appellants took to their heels: They were chased and Arib, one of the appellants, was apprehended who was brought to the spot. In the meantime, the police patrol party also reached the spot where Urfan‑ullah S.I. /S.H.O. Police Station A‑Division, Rahimyar Khan, recorded the complaint Exh.P.A/2 of Malik Manzoor Ahmad, Advocate, (P.W.2). He arrested Arib appellant, who was present at the spot, and recovered Rs.800 Exh.P.14/1‑8, pocket Radio P.5, two gents watches P.13 and P.15, Pistol P.17 and a live cartridge P.18. The pistol and the live cartridge were taken into possession vide memo Exh.P.D. and the other recovered articles were taken into possession vide memo Exh.P.E.

4. Malik Manzoor Ahmad complainant produced V.C.R. Exh.P.6, tape‑recorder P.7 and Saffa P.16 which the appellants had left in the car which were taken into possession vide memo Exh.P.B.

5. Abdul Majeed P.W. was sent to the Hospital for medical examination and Dr.Shaukat Ali, Medical Officer, D.H.Q. Hospital. Rahimyar Khan, P.W. 3, found the following injuries on his person:‑

(1) Swelling and bruising on both upper and lower lids of left eye alongwith congestion and laceration. of conjuctiva.

(2) Swelling 3" x 3" left tempero parietal region.

(3) Bleeding through left nostril.

All these injuries were found to be simple in nature caused by blunt weapon.

6. During the investigation of this case, on 16‑5‑1987 Shamas‑ud -Din appellant led to the recovery of golden chain P.8 and watch P.9 which were taken into possession vide memo Exh.P.H. On the same day, Fayyaz appellant got recovered a dagger P.22 a golden ring P.10 which were taken into possession vide memo Exh.P.J. On the same date, Zulfiqar appellant got recovered golden chain P.11, watch P.12 and an artificial pistol P.19 which were taken into possession vide memo Exh. P . G .

7. Munir Ahmad appellant in Criminal Appeal (Special Court) No.7 of 1987/BWP, was arrested on 31‑7‑1987 who was sitting under a eucalyptus tree near the Bus‑stand in suspicious circumstances: The police recovered a set of silver ornaments P.1, a necklace P.2 and Jhoomars P.3 and P.4 which were taken into possession vide memo Exh.P.F. The identification Parade of three appellants was conducted and the eye‑witnesses correctly identified them. The appellants also made a confessional statement of their guilt before Bashir Ahmad. After the completion of the investigation, the challan of the appellants was submitted and as sequal to the impugned trial, they were awarded the aforementioned punishments.

8. Malik Manzoor Ahmad complainant P.W. 2 has narrated the incident as stated in the F.I.R. He has added as to how he was harassed and coerced by the appellants to hand over the valuables kept in his house and how Rs. 800 were snatched from his pocket by the appellants. He has testified that the appellants stated by extending threats that Usman, the son of the complainant, who is a minor chap of four years, would be shot dead in case they did not deliver the valuables. He has also stated how Abdul Majeed P.W. was injured. He has deposed about the recoveries of wrist watch P.13, Rs.800 P.14/1‑8, the watch of Tauseef P.15, the tape‑recorder and V.C.R. which were tied in a cloth P.16. According to him, Arib appellant was found in possession of two male wrist watches, currency notes valuing Rs.800 Radio Transister P.5. Pistol P.17 and a live cartridge P.18. He has corroborated that he went to Jail and correctly identified Fayyaz, Shamasud Din and Zulfiqar. He was cross‑examined at length who has added that Abdul Majeed belongs to his brotherhood and is not his blood relation and is a peon in the Sessions Court, who comes to his house after duty hours and resides with him as he is having his boarding and lodging free in his house. Malik Manzoor Ahmad Misson, Advocate, P.W.2 who is the complainant has no enmity against the appellants. He has simply stated that Munir appellant was his client, who was facing trial under section 307, P.P.C. and also involved in a theft case. He denied the suggestion that Munir appellant had given him Rs.30,000 and he promised to get him released on bail or to get him acquitted. He has also admitted that he filed a revision petition in connection with the witnesses who were not cross‑examined and the revision petition was allowed. It was suggested to him that Munir and Fayyaz appellant had quarrelled with him and so they had been implicated in this case on account of the said grudge. He has denied this suggestion.

9. The eye‑witnesses were subjected to searching examination by the learned trial Court in order to know their truthfulness. Tauseef Ahmad, Advocate, P.W.5 lends full corroboration to the fact that he was present in the house of the complainant at about 8‑30 P.M. on 3‑3‑1987 when all the four appellants came there. The appellants knocked at the main gate which had been closed and when Abdul Majid went to know about the persons, who were knocking at the door, he was brought to the T.V. lounge when Arib appellant had placed his pistol on his temple whereas Fayyaz appellant was armed with a dagger and Zulfiqar and Shamas‑ud‑Din appellants were having a pistol each. This witness correctly identified the four appellants as he had seen them in the electric light in the house of the complainant. According to this witness, the appellants had threatened to kill Usman, the little child of the complainant, in case they did not surrender all the valuables in his house. Shamas and Zulfiqar went upstairs after giving beating to Majeed P.W. with the butt of their pistols and they came down‑stairs with valuables etc. He has added that on their alarm, the inmates of the nieghbouring houses, namely, Abdul Sattar, Ghulam Abbas, Abdul Ghani and Shah Nawaz came there and they chased the appellants and Arib was apprehended at a distance of ore and a half acres whereas the remaining appellants succeeded in running away. Arib appellant, after his apprehension, disclosed the names of the remaining three appellants, namely, Zulfiqar, Shamas‑ud‑din and Fayyaz. He has stated about the recoveries of the valuables and pistol etc. and he identified these articles. When subjected to the cross‑examination, he had stated that he had gone to the house of the complainant fifteen or twenty minutes before this occurrence and Shan Nawaz P.W. had initially apprehended Arib appellant.

10. Abdul Majeed P.W.6 has corroborated the entire incident and has given an account of his injuries and recoveries effected from Arib appellant in the car. He has stated that he correctly identified Zulfiqar, Fayyar and Shamas‑ud‑Din in an identification parade held in the Jail premises under the supervision of a Magistrate. When cross‑examined, he has stated that he had been living with the complainant since the last five years as he was distantly related to the complainant from the side of his mother. He has added that Munir Ahmad was not with the appellants. He has conceded the fact that he is a peon in the Court of learned Additional Sessions Judge, Rahim Yar Khan, and the appellants had raised an objection at the time of identification parade that they had been shown to them by the police and the Magistrate had recorded this objection. Ashiq Muhammad (P.W.1) Magistrate lst Class, Rahimyar Khan, had supervised the identification parade held on 12‑5‑1987 at 1‑00 p. m. in the District Jail, Rahimyar Khan. According to this witness, the eye‑witnesses had correctly identified all the three appellants, namely, Fayyaz, Shamas Din and Zulfiqar and they did not raise any objection that they had been shown to the eye‑witnesses before. The statement of the Magistrate takes precedence over the statement of Abdul Majid regarding the objection of the appellants raised before Ashiq Muhammad, Magistrate 1st Class P.W.1.

11. Bashir Ahmad P.W.8 has stated that on 11‑5‑1987 at about 6‑30 a.m. he was sitting at his outer abode alongwith Ghulam Nabi where Zulfiqar, Shamas and Fayyaz appellants came there and Zulfiqar took him and Ghulam Nabi aside and told them that Munir accused pointed out a bungalow to them and had said that the owner of the said bungalow was fabulously rich and all of them wanted to commit robbery' in the house whereas Arib appellant placed his pistol on the temple of Abdul Majeed and the valuables were looted. This witness has given the details of the articles which they had robbed from the house. According to this witness, the appellants had distinctly narrated the incident and had made an extra‑judicial confession of their guilt. Before the police, he had stated that he and Ghulam Nabi were sitting at the Dera of Ghulam Nabi whereas before the Learned trial Court, he has stated that they were sitting at his own Dera. He has conceded the fact that the statement that he was sitting at his own Dera, was wrong. He did not state before the police that Zulfiqar had taken him and Ghulam Nabi aside nor he had said that there was a lot of money in the bungalow of the complainant. In his statement Exh.D.C. the name of Munir appellant, who is stated to have pointed out the bungalow of the complainant, was missing and the name of one Manzuur Ahmad had been mentioned. In the circumstances, we little believe Bashir Ahmad P.W. when he states that the appellants had made an extra‑judicial confession of their guilt before him.

12. Shahid Mahmood P.W.10 had witnessed the recovery of a golden chain P.11 and a lady watch P.12 at the instance of Zulfiqar appellant, who had also got recovered an artificial pistol P.19 which were taken into possession vide memo. Exh.P.G. He has added that Shamas‑ud‑Din appellant on 16‑5‑1987, while in police custody, led to the recovery of a golden chain P.8, a lady watch P.9, a .12 bore pistol P.20 and a live cartridge P.21, which were secured into a sealed parcel vide memo. Exh.P.H. On that very day, Fayyaz appellant, while in police custody, led to the recovery of a golden Karra P.10 and a dagger P.22 from his residential room which were taken into possession vide memo. Exh.P.I.

13. The learned counsel for the appellants has assailed the statement of Shahid Mahmood in the terms that his name was not mentioned in the list of witnesses and permission was granted to enlist him as a P.W. by the learned trial Court in the absence of the learned counsel for the appellants. It is a fact that the learned counsel for the appellants was not present but a notice to the appellants had been given and the learned trial Court had the competence to call any witness or to permit the prosecution to enlist and examine any witness like Shahid Mahmood. This objection is devoid of force.

14. Mian Urfanullah P.W.11 had recorded the statement of the complainant Exh.P.A./2 and had prepared the 'injury statement Exh.P.J. of Abdul Majeed P.W. who was sent for medical examination in the company of Muhammad Siddiq constable. He has also given the detail of the recoveries effected from Arib appellant and has stated that Bashir Ahmad and Ghulam Nabi had produced Zulfiqar, Shamas ud‑Din and Fayyaz appellants before him on 11‑5‑1987 in the evening. Ghulam Nabi has not been produced and the statement of Bashir Ahmad has been disbelieved. He has stated that he had recorded the statement of Manzoor P.W. in the lawn of his bungalow. He has denied the fact that the faces of the appellants, who participated in the identification parade, were shown to the eye‑witnesses.

15. Talib Hussain P.W.12 has corroborated the recoveries which were made from Zulfiqar, Shamas‑ud‑Din and Fayyaz on 16‑5‑1987. It has been suggested that the provisions of section 103, Cr.P.C. were not complied with at the time of these recoveries and the witnesses from the locality were not associated in the recovery of the stolen articles. Firstly, it was not a case of house search and there was no necessity to comply with the provisions of section 103, Cr.P.C. Secondly, it is not necessary that the person of the locality should be a witness in such recoveries as held in Ballia and others v. The State 1985 S C M R 854.

16. As regards, Munir Ahmad appellant, he was not present wheal the main incident took place in the house of the complainant. He was arrested on 31‑7‑1987 i.e. after about four months of the incident from near a bus stand and a eucalyptus tree and from his personal search, a Teka P.1, a necklace P.2 and Jhoomars P.3 and P.4 were recovered. Bashir Ahmad P.W.8 has not been believed, who had stated that the other appellants had told him that Munir Ahmad appellant had pointed out the bungalow of the complainant to the appellants. Muhammad Arif P.W.9 has stated that he was present when Munir appellant was arrested and from his personal search a set of silver ornaments consisting of Teka P.1, Haar P.2 and Jhoomars P.3 and P.4 were recovered from the right pocket of his Shalwar which were taken into possession vide memo. Exh.P.F., which bore his signature. He has stated that there were a number of eucalyptus trees around the place from where he was arrested. But in the site plan, the police has shown a single eucalyptus tree. Munir Ahmad appellant was not actually associated in this robbery but it does not ring true that a person like Munir Ahmad appellant, who was having stolen property kept the same in his pocket so that it may incriminate him at any subsequent time or was carrying the same with him all along after a lapse of four months. Arif and Talib Hussain P.Ws. have witnessed these recoveries but the case against Munir Ahmad appellant appears to be a case of fake recoveries. We, therefore, accept the appeal filed by Munir Ahmad and acquit him of the charge framed against him under section 411, P.P.C.

17. The learned counsel for the appellants has contended that the learned trial Court had no jurisdiction to try an offence under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979. It may be noted that this case was sent to the learned trial Court by the Home Department, Government of the Punjab, on 15‑10‑1987 and the Special Courts for Speedy Trials Act, 1987, (XV of 1987) was enforced by the Governor of the Punjab on 25th day of November, 1987, vide Notification No.8‑34/H‑SPL‑III/87, dated 25th November, 1987. In this manner, Act II of 1987, was applicable to this case. In Act II of 1987, an 'offence' has been defined in section 2(c) of the said Act as under:‑

"Offence' means an offence punishable under any law for the time being in force which, in the opinion of the Government, is sensational in character or shocking to public morality or has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof."

18. Section 5 of the same Act deals with the jurisdiction of the Special Court which may be reproduced for the facility of reference:‑

"S.5. Jurisdiction of Special Court. ‑‑ (1) If the Government is of the opinion that a case resting to an offence which has been registered should in the public interest be tried and decided speedily, the Government may order that the case shall be tried by a Special Court,

(2) If the Government is of the opinion that a case relating to an offence which is pending before any court should in the public interest be tried and decided speedily, the Government may, by order in writing, transfer the case for trial to a Special Court,

(3) As soon as an order is made under subsection (1) or subsection (2) in respect of any case, no Court other than the Special Court referred to in such order shall have any jurisdiction to entertain any proceedings in respect thereof,

(4) The Special Court may convict and sentence an accused for any offence of which he may be found guilty,

(5) The Special Court shall have, in respect of a case triable by it, all the powers, which a High Court has in relation. to a trial before it under the Code, including the powers relating to the grant or cancellation of bail or recall or amendment of any orders, and shall, subject to this Ordinance, as nearly as may be follow the procedure provided in the Code for such trial. "

19. It follows that the Special Court could convict and sentence an accused for any offence of which he was found guilty end it could try an offence under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979. It remains to be examined as to whether the sentence passed under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979, has rightly been awarded to Arib appellant. Section 15 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, contains the definition of Haraabah which is as follows:‑

"S.15.

Definition of Haraabah .‑‑ When any one or more persons, whether equipped wit arms or not, make show of force for the purpose of taking away the property of another and attack him or cause wrongful restraint or put him in fear of death or hurt such person or persons; are said to commit 'Haraabah'."

20. Section 7 deals with the proof of theft liable to Hadd, which is being reproduced as under:‑

"S.7. The proof of theft liable to 'Hadd' shall .be in one of the following forms namely:‑

(a) the accused pleads guilty of the commission of theft liable to 'Hadd' and

(b) at least two Muslim adult male witnesses, other than the victim of the theft, about whom the Court is satisfied, having regard to the requirements of 'Tazkiya‑al‑Shuhood', that they are truthful persons and abstain from major sins (Kabair), give evidence as eye‑witnesses of the occurrence;

Provided that, if the accused is a non‑Muslim, the eye‑witnesses may be non‑Muslim;

Provided further that the statement of the victim of the theft or the person authorised by him shall be recorded before the statements of the eye‑witnesses arc recorded."

21. Section 7(b) of the said Ordinance envisages that at least two Muslim adult male witnesses, other than the victim of the theft about whom the Court is satisfied, having regard to the requirements of 'Tazkiyah‑al‑Shuhood', should give evidence as eye‑witnesses of the occurrence. In the instant case, Malik Manzoor Ahmad complainant and Tauseef Ahmad, Advocate, are the victims of theft. Abdul Majeed is the only eye‑witness besides them and the condition of producing two male adult witnesses other than the victims of the theft has not been fulfilled. In this case, the ornaments were not weighed nor the price of the robbed property was ascertained and there is no proof that their value or weight exceeds Nisab provided in the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.

22. The learned Assistant Advocate‑General has scrupulously conceded that the case under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, has not been made out against Arib appellant. Hadd could not be exacted on Arib appellant and he is found guilty under section 394/34, P.P.C. We, therefore, convict him under section 394/34, P.P.C. and order him to suffer ten years' R.I. and a fine of Rs.10,000. In default of payment of this fine, he shall further undergo two years' R.I. The sentences passed against Arib appellant shall run concurrently. The fine, if recovered, shall be paid to the complainant.

23. Malik Manzoor Ahmad complainant and Tauseef Ahmad P.Ws. are respectable members of the legal fraternity and they have no enmity against the appellants. It is a pity that the people like the appellants have disturbed the peace and tranquillity of the society and the case against them has been proved by the eye‑witnesses under section 394 and section 323 read with section 34 of the P.P.C. The recoveries from them indicate that all these four appellants had jointly committed this crime and were instrumental in injuring Abdul Majeed P.W. Arib appellant was apprehended on the spot and he could not vindicate his presence near the spot at the time of the incident. Although, the appellants have taken different pleas in their statements recorded under section 342, Cr.P.C. which do not ring true, the prosecution has substantiated the case against the appellants under sections 394 and 323 read with section 34 of the P.P.C. and sentence awarded to them is also appropriate.

24. We, therefore, dismiss the appeal of Shamas‑ud‑Din, Fayyaz Ahmad and Zulfiqar appellants. The sentence awarded to Arib appellant under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, is quashed and is modified to one under section 394/34, P.P.C. The appeal of Munir Ahmad appellant stands accepted as the case under section 411, P.P.C. has not been proved against him by the prosecution. Munir Ahmad should be set at liberty forthwith if not required to be detained in any other case.

M.Y.H./A‑372/L Order accordingly.