TAYYAB ASGHAR Versus THE STATE
Tayyab Asghar son of Muhammad Asghar and Umar Havat alias Yousaf son of Dost Muhammad appellants alongwith Muhammad Sharif faced trial for the charge under section 395, P.P.C. before Magistrate Section 30, Sheikhupura who vide his judgment, dated 31-5-1990 convicted the appellants and sentenced them to six years' R.I. each with a fine of Rs.3,000 each or in default of payment of fine one year's R.I. each. However, he acquitted Muhammad Sharif from the charge.
2. The brief facts of the prosecution case as unfolded in the application Exh.P.C. submitted by Younis Kamran complainant are that on 2-7-1989 at about 4 p.m. when the complainant was coming from Faisalabad through Honda Accoid car owned by Itfaq Foundry and reached near Feroze Wattoan Bridge of Qadirabad Link Canal a Tyoyta Corolla car without number plate with five persons in it armed with deadly weapons appeared and got the car of the complainant stopped. Four of them came out of the Toyota Corolla car and by extending threats to the complainant at gun point snatched his car and he was forcibly made to sit in the Toyota Corolla car. The accused persons took both the cars to the areas of Police Station Farooqabad, Khanqah Dogran and then the village of Sukheki. The complainant was being constantly threatened not to raise alarm and at about 6-30 p.m. the accused after tying the hands and feet of the complainant threw him in the bushes in the area of Tavalawali near Jhang Branch Canal.
3. The appellants and the acquitted accused were arrested in a police encounter on 25-11-1989 and they were sent to the judicial lock-up on the same day. Thereafter on 6-12-1989 their identification parade was held under the supervision of Maqsood Ahmad, Magistrate, P.W.12. the prosecution produced thirteen witnesses in all. However Younis Kamran P.W.4, Maqsood Ahmad, Magistrate P.W.12 and the Investigating Officer P.W. are the material witnesses for the purpose of this case. The remaining witnesses are of formal nature and need not to be discussed. The accused denied the prosecution allegations and pleaded false implication.
4. Learned counsel for the appellants contends that the occurrence took place at about 4-00 p.m. on 2-7-1989 whereas the F.I.R. was lodged at 1-30 p.m. on 3-7-1989 with a delay of about twenty hours with no explanation. It is next contended that the case remained untraceable till the date of the arrest of the appellants and thus the appellants were roped in the case by the police; that there is no other evidence to connect the appellants with the commission of offence except the identification of the accused; that the stolen car was not recovered and as a result thereof the charge is not established against the appellants.
5. Learned counsel for the State has supported the conviction awarded to the appellants by the learned trial Court
6. I have considered the contentions raised by the learned counsel for the parties and perused the record carefully. The occurrence took place at 4 p.m. and the appellants alongwith their co-accused snatched the car from the complainant and took him with them in the area of Sukheki Mandi and thereafter about two and a half hours later left him in helpless condition in a lonely place. The complainant thereafter lodged the report with the police station on the next day without disclosing the reason of delay but it is understandable that he being a driver of the car snatched by appellants must have first approached to his employer before visiting the police station. Anyhow, the delay in this case is not material for the reason that the appellants were unknown to the complainant and they were not nominated in the complaint. Therefore, the delay in lodging the report neither suggests false implication nor creates doubt in prosecution case to be beneficial to accused to plead innocence.
7. The contention of the learned counsel that the appellants were falsely made accused of the case as it was not traceable has no force. Admittedly the appellants were not known to the complainant earlier and, therefore, for want of whereabouts they could not be traced till their arrest in the police encounter. The next contention raised was that the appellants were arrested on 25-11-1989 and the identification parade was held on 6-12-1989, after a delay of about eleven days which creates doubt is also of no significance for the reason that the appellants soon after their arrest were sent to jail and there is nothing on record suggesting the disclosure of identity of the appellants to the P.Ws. till the identification parade was held on 6-12-1989. The complainant (P.W.4) correct identified the appellants in the identification parade. He categorically 13 stated that he was familiar with the faces of the appellants as he remained with them for about two and a half hours on the day of occurrence. This statement of him remained unchallenged. Therefore, the holding of identification parade after eleven days of the arrest of accused with no other defect is not fatal and similarly objection of the appellants at the time of identification parade that they were exposed to the P.Ws. after their arrest is no ground to discard the identification parade and to exclude the same from consideration. The evidence of P.W.4 (complainant) with regard to the participation of the appellants in the occurrence is consistent with the contents of the F.I.R. and also is corroborated by the circumstances of the case. He was not known to the C accused previously and had no reason to substitute the appellants with the actual culprits in the identification parade. The appellants being member of a gange of dacoits were arrested in a police encounter which is another strong corroborating circumstance against them.
8. For the foregoing reasons, the appeal fails and the conviction of the appellants is maintained. The learned counsel for the appellants prayed that this is a case of minimum penalty as provided under section 395, P.P.C. and therefore, a lenient view may be taken in the matter of sentence. After considering the prayer for the reduction of sentence, I find that minimum sentence of four years' R.I. as provided under law is sufficient to meet the ends of justice. With this modification in the terms of sentence this appeal is dismissed. However, the fine awarded by the trial Court is maintained
N.H.Q./T-62/L Sentence reduced.