RIAZ-UL-HASSAN Versus THE STATE
ABDUL SHAKURLUL SALAM, CHAIRMAN. --- This appeal by Riaz-ul-Hassan son of Abdur. Rashid is against the judgment of a learned Judge, Special Court for Speedy Trial No.1, Lahore dated 14-1-1992 whereby he was convicted under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 392, Cr.P.C. and sentenced to eight years' R.I. and a fine of Rs.2,000 in default six months' R.I.
2. Relevant facts are that the appellant alongwith Abdul Rauf alias Papu son of Abdur Rashid as well as Pervaiz Iqbal and Abdul Rauf alias Roofa son of Abdur Rehman (absconders) was charged for an offence under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 392, P.P.C. During the trial except Abdur Rauf alias Papu the other three accused absconded from the Court after 19-10-1991. However, during the trial the police was able to arrest Riazul Hassan appellant. So, the trial against him and Abdur Rauf alias Papu was completed. The other two, namely, Pervaiz Iqbal and Abdur Rauf were declared as proclaimed offenders and their cases were separated under section 512, Cr.P.C.
3. According to the prosecution case, on 20-3-1991 Abdul Hafeez Butt (P.W.3) a shopkeeper at 101 Ravi Road, Lahore was present at his business premises after. Iftari alongwith his employees Maqsood Ahmad (P.W.4) and Muhammad Yasin given up . P.W.). There was a robbery, a rexine bag containing an amount of Rs.40,000 was taken away by four culprits. According to Abdul Hafeez Butt P.W.3 he reached the Police Station and lodged the F.I.R., though Muhammad Ashraf, A.S.I. and Muhammad Aslam, A.S.1. (P.Ws. 7 and 8) said that the complainant met the former at Ravi Road at 7-00 p.m. and made statement Exh.P.C. on which formal F.I.R. Exh.P.C./l was registered by Muhammad Riaz S.1. (P.W.2) at 7-15 p.m. The version given in the F.I.R. was that the complainant alongwith his employees Maqsood Ahmad and Yasin P.Ws. was present at the shop at 6-30 p.m. when a person with wheatish colour wearing blue colour Shalwar and Kameez middle height aged 30 years speaking Punjabi came in and said that he wanted to have water. Glass may be given to him. That was done. He went out of the office with the glass. A little later, alongwith him three boys came. Their description was (1) wheatish colour, solid body, having beard, height 5` - 6" aged 18 to 20 years wearing pant and bushirt (2) wheatish colour wearing Shalwar Kameez height 5' - 6" aged 20/25 years (3) brownish colour wearing Shalwar and Kameez height 5' - 7" aged 30 years all speaking Punjabi. One of these boys gave slap to Yasin and asked the complainant to give up whatever they had. He had a rexine bag brown colour containing Rs.40,000 a photostat copy of identity card and visiting card of Ittifaq Traders. It was given to him. The persons had two motor-cycles. They went away riding thereon. Because of the darkness number of the motor cycle could not be noted. He (the complainant) could identify the four persons on seeing them. This was witnessed besides him by (complainant) Maqsood
4. Shanul Qadir A.S.I. of Anti-Car Lifting Staff (P.W.6) was holding a Nakabandi party on 11-5-1991 at G.T. Road when from the side of Ikmoria Pul the appellant and Abdul Rauf alias Papu alongwith two absconders and one Rehan reached on two motor-cycles and were checked. They could not produce their documents of ownership of the motor-cycles. They were, therefore, arrested. During the investigation the four persons made disclosure about the dacoities, including the one, the subject-matter of the trial. They were sent to judicial lock-up on 12-5-1991. The police of Police Station Ravi Road were informed about the disclosures made by the accused on that very day. Muhammad Aslam, A.S.I. (P.W.8) was posted in Ravi Road in May, 1991. The investigation of the present case was entrusted to him on 12-5-1991. He moved application (Exh.P.A.) on 16-5-1991 for arranging an identification parade of the four accused in jail to the Assistant Commissioner who passed order (Exh.P.A/1) and deputed Anwar Rashid, Magistrate (P.W.1) for the same. The Magistrate held the parade in Camp Jail, Lahore on 18-5-1991. In this identification parade, the appellant as well as the three others were identified by the complainant. According to the A.S.I. P.W.8 he took remand of the four accused on 28-5-1991. The appellant made disclosure, led to his house in Sham Nagar and from an attache case lying in the southern corner of his room got recovered an amount of Rs.3,000. It was secured vide memo. Exh.P.D. Rauf alias Papu made disclosure, led to the house of his co-accused Pervaiz Iqbal inside Bhatti Gate and from the Baithak got recovered an amount of Rs.2,000, two visiting cards of the complainant P.2 and P.3 and these were secured vide memo. (Exh.P.G.). On 3-6-1991 Riazul Hassan appellant led to the house of his co-accused Abdul Rauf alias Roofa (absconder) and from an attache case got recovered cheque (P.4) drawn by the complainant which was for an amount of Rs.5,000. It was recovered vide memo. Exh.P.J. Thereafter, the accused were challaned to the Court.
5. At the trial Abdul Hafeez Butt complainant P.W.3 gave the ocular account of the occurrence. He had correctly picked up the appellant in the identification parade conducted by Mr. Anwar Rashid P.W.1 in Jail. Maqsood Ahmad (P.W.4) corroborated him as to the main occurrence. Muhammad Yousaf constable P.W.5 and Muhammad Aslam A.S.I. (P.W.8) deposed about the recovery. Mr. Anwar Rashid Magistrate P.W.1 proved the proceedings of the identification parade Exh.P.B. At the close of the trial, the appellant made the statement that he was sleeping at the house of his brother in Gulshan Ravi wherefrom he was hauled up by Shanul Qadir, A.S.I. When questioned that he was correctly picked up by the complainant in the identification parade in jail, he replied:--
"We were shown to Abdul Hafeez Butt complainant in C.I.A. P.S. Misri Shah, Lahore by Shanul Qadir, A.S.I. where the complainant was called and asked by the A.S.I. whether we were his culprits and he replied in the negative. In spite of it the A.S.I. insisted that we were his culprits and even tortured us in his presence. We had raised this objection before the Magistrate."
It may be noted at this stage that no such objection was recorded as having been raised by the appellant. As regards the recovery of Rs.3,000 he said that has been falsely planted upon him. When asked as to his disappearance during the trial his reply was:--
"We have been witnessing and hearing )n the national T.V. network that Special Courts had been established to convict the culprits and fearing the result I absconded."
As to the question `Why this case against you', his reply was:--
"Firstly Pervaiz Iqbal co-accused was hauled up by Shanul Qadir, A.S.I. and tortured and then I was hauled up. I was also tortured and asked to tell some wealthy culprit. We were asked to pay bribe but we refused that is why I have been falsely involved."
No evidence was led in defence.
6. The learned trial Court found the appellant guilty and convicted him and sentenced him as stated above.
7. Learned counsel for the appellant has contended that according to the two witnesses the F.I.R. was recorded at the police station whereas the police officials had said that it was recorded at Ravi Road. He next submitted that there was no mention of the weapons in the F.I.R. with the culprits. He then submitted that the recovery of cheque is false as no cheque was mentioned in the F.I.R. He then submitted that the appellant was alleged to have given slap to Yasin but the latter was not produced. Identification by the complainant alone is not enough. He placed reliance on Khadim Hussain v. The State 1985 S C M R 721 and Lal Pasand v. The State P L D 1 981 SC 142.
8. Learned counsel for the State on the other hand submitted that the complainant had described the culprits and had rightly identified the appellant in the identification parade. No objection was raised on behalf of the appellant. He also submitted that during the trial the appellant had absconded. He however, submitted that as there were not two witnesses of the crime as required he could not support the conviction under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance 1979.
9. We have heard the learned counsel for the parties at great length and perused the record with their assistance. The contentions raised by the learned counsel for the appellant arc not destructive as regards the crime. The complainant is a shopkeeper and that he was robbed. These facts are not disputed. As regards the contention about the identity of the appellant with reference to the two cases cited by the learned counsel for the appellant, it may be noted that the facts of those cases are distinguishable from the case in hand. The complainant had given the description of the culprits in the statement he made soon after the occurrence. In the identification parade, he identified the appellant first, though the latter was sitting at No.15 amongst the other under trials. The appellant had slapped the clerk of the complainant. The latter would have the occasion and- time to see who had slapped his clerk. His features would get engrossed or imprinted on the mind of the complainant. The complainant is an ordinary shopkeeper having no enmity with the A appellant and. no reason to take the risk of falsely implicating him by pointing out the appellant as one, of the culprits if he would not be sure that the appellant was one of the culprits. After careful and anxious consideration we are of the view that the finding of the learned trial Court that the appellant was guilty calls for no interference. Therefore, his appeal is dismissed. However, in view of the age of the appellant 19.years and the fact that he was a student, which is not disputed; we reduce his sentence to five years' R.I. maintaining the sentence of fine. He shall be given the benefit of section 382-B, Cr.P.C.
N.H.Q./41/SAC
Sentence reduced..