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Criminal Petition for Special Leave to Appeal No. 14 of 1977, decided on 3rd December, 1977.

(On appeal from the judgment and order of the Lahore High Court dated 26th. May, 1976 in Criminal Revision No. 62 of 1966).

Penal Code (XLV of 1860)‑

‑‑ S. 394‑Dacoity‑Appreciation of evidence‑Prosecution case principally based on evidence of owner of car, subject‑matter of dacoity, and his three companions travelling in same car as well as on recovery of car from accused together with articles belonging to car owner Prosecution story also corroborated by evidence of a Police Constable on patrol duty‑Accused's plea in High Court totally inconsistent with plea raised in trial Court‑Plea taken in trial Court reagitated before Supreme Court‑Driving away by accused of car owned by complainant shortly after dacoity, hold furnished strong corroboration both of ocular evidence and of Police Sub‑Inspector capturing accused with car‑‑Accused, held, rightly convicted.‑‑[Evidence].

Waheed‑ud‑Din Virk, Senior Advocate, Supreme Court, instructed by Sh, Abdul Karim, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing : 3rd December, 1977.

‑This petition for leave has been filed against judg ment of the Lahore High Court dated 26th May, 1976 by which a learned Judge of the Lahore High Court dismissed the Revision of the petitioners against their conviction under section 394. P P C. by the Section 30, Magistrate, Sheikhupura.

The petition is time‑barred by 123 days and the only explanation of the petitioners for this gross delay is that they were on bail pending the hearing of their appeal and that they had not been informed about the judgment by their learned counsel until 19th January, 1977. We find it difficult to believe this plea as the affidavits of the learned counsel for the petitioners have not been filed. Be this as it may, we have also heard learned counsel on the merits of the case and we are satisfied that no ground has been made out for the grant of special leave.

According to the prosecution, P. W. Salamat Ullah was, at the relevant time, a Manager of a branch of the National Bank of Pakistan, and on 15th April, 1964 at about 4‑30 p.m., he was driving his car (S. A. 333) on the Canal Bank of R. D. 202 Upper Gogera Canal in the area of Manawala. In the car with him were P. Ws. Murad Ali, Abdus Sattar and Maqsood. The petitioners blocked the passage of the car and picked up a quarrel with P. W. Salamat Ullah. P. W,. Salamat Ullah realised that it was a hold‑up because the third petitioners were armed with revolvers whilst the second petitioner had a Danda. The petitioner demanded the cash and the valuables from P. W. Salamat Ullah and his friends. They resisted and were beaten up and the petitioners seized P. W. Salamat Ullah's car and drove away with it. P. W. Salamat Ullah immediately lodged an F. I. R. notifying the dacoity, therefore, investigations commenced and in the early hours of the next day P. W. Gulzar Ahmad S. I., managed to capture the petitioners who were caught driving P. W. Salamat Ullah's car. Further, P. W. Salamat Ullah had left in the car his wrist watch and other articles, and these articles too were secured from the petitioners who were prosecuted in due course.

The petitioners denied their guilt and as the judgment of the trial Court is not available, the precise plea advanced by them is not very clear. Be this as it may, they appear to have examined witnesses to show that they had been arrested from their village and not in the manner and at the place alleged by the prosecution. They further stated that they had been falsely implicated on account of enmity.

The prosecution case was based principally on the evidence of P. W. Salamat Ullah and his three friends who were with him in the car at the time of the dacoity and on the fact of the recovery of the ca together with the articles belonging to P. W. Salamat Ullah. A Police Constable by the name of Muhammad Yaqoob was also examined as a corroboratory witness and as the learned Magistrate was impressed by this evidence, he convicted the petitioners under section, 394, P. P. C. and sentenced them to three years' R. I.

The High Court agreed with the trial Court's appreciation of evidence but it is relevant to observe here that the learned counsel for the petitioners, advanced a plea in the alternative which was totally inconsistent with the plea of the petitioners in the trial Court. This plea was that the petitioners were village rustics and because they were not used to seeing motor‑cars, they had blocked the passage of P. W. Salamat Ullah's car on account of their ignorance and this has led to an altercation but they emphatically denied the dacoity. This plea did not impress the learned Judge, the moreso, as it reacted against the attempt of the petitioners to challenge on the ground of enmity the evidence of P. W. Gulzar Ahmad, S. I., who had arrested the petitioners whilst they were driving car No. SA 333. Accordingly, as the learned Judge saw no reason to dissent with the trial Court's view, he dismissed the Revision.

Learned counsel attempted to reagitate before us the plea taken by the petitioners in the trial Court, but he was handicapped because the depositions of the witnesses have not been filed and for the same reasons, we are not able to ascertain where precisely P. W. Gulzar Ahmad, S. L, had arrested the petitioners. However, both the Courts have accepted the evidence of this witness as reliable including the evidence about the recovery of the articles secured from the petitioners and it is not disputed that these articles belonged to P. W. Salamat Ullah. Obviously, this witness's evidence is am extremely incriminating piece of evidence, therefore, learned counsel attempted to criticise it on the ground that the prosecution had not recovered from the petitioners the revolvers and the Danda with which, according to the eye witnesses, they were armed at the time of the occurrence. We are no impressed by this submission because it would have been foolish on the part of the petitioners to retain with them the arms with which they had been seen by the eye‑witnesses. In these circumstances, no case has been made out for interfering with the finding that P. W. Gulzar Ahmad S. I, was a reliable witness.

Additionally, this witness's evidence is supported by the corroboratory witness Muhammad Yaqoob. Muhammad Yaqoob was a Foot Constable who claimed that he knew the petitioners and he said in his evidence that whilst he was on patrol duty, he had seen the petitioners near Khaitibara bridge at about noon. Then he said that the same afternoon whilst he was at Manawala bus stand, he had seen the petitioners at about 5‑00 p.m., driving Car No. SA 333. The fact that the petitioners were driving away in P. W. Salamat Ullah's car shortly after the dacoity furnishes strong corroboration both of the ocular evidence and of the evidence of P. W. Gulzar Ahmad, S. I. We, therefore, see no reason to dissent from the view taken in the judgment under appeal.

Learned counsel then submitted that there had been very great delay in the hearing of the Revision of the petitioners. It is true that the Revision of the petitioners was heard after a delay of almost ten years but the petitioners had been granted bail by the High Court at the time of the admission of their Revision and it is also not known why the bearing of the Revision was delayed. In these circumstances, nothing turns on the delay in the hearing of their Revision petition.

The petition is without merit and is dismissed.

Petition dismissed.

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