This appeal is directed against a judgment delivered by a learacd Additional Sessions Judge, Nawabshah, on 5-e-1976, whereby he has convicted each of the three accused of offences under section 392 and section 394, read with section 397, P. P. C. And has sentenced them on the former count to R. I. For seven years and on the latter count similarly to R.I. For seven years and also to pay a fine of Rs. 500, each or in default to undergo further R. I. For six months. The substantive sentences have been directed to run concurrently.
2. The prosecution case, shortly stated, is that on the night intervening between 31st May and 1st June, 1973, an armed robbery took place in passenger Wagon No. 3565/HD while it was plying on the National Highway between Sukkur and Hyderabad. The said Wagon started for Hyderabad with passengers from Sukkur at about 6,00 p. m. When the Wagon reached Moro, a munshi of the transport company which owns the Wagon, by name Muhammad Khan Korio, and four strangers, got into the Wagon. At about 11-03 p. m. When the Wagon had covered a distance of about three miles from Kazi Ahmed, the four strangers who had boarded the Wagon at Moro asked the driver of the Wagon to stop the Wagon. It was found that one of these persons was armed with a revolver, a second' with a knife, while the remaining two carried dandas. All four of them were clearly seen in the dim light of the Wagon. After the Wagon bad come to a stop, these four persons got down from the Wagon and made the driver and the other inmates of the Wagon to get down and took them into the nearby field where they robbed them of their cash, watches and other belongings. One passenger, by name Muhammad Punhal, was given a dandy blow because be was reluctant to hand over his watch to the robbers. Another passenger of the Wagon, by name Abdul Wahid, had some of his teeth knocked out by the fist blows given to him by the robbers. While these operations were going on, a truck was seen to approach from Kazi Ahmed side. The robber armed with the pistol thereupon fired at the truck at which the truck hurriedly sped away. The four robbers then left, taking away with themselves the booty, that they had captured from the occupants of the Wagon.
After the departure of the robbers, the driver of the Wagon, Azizullah, drove the wagon to Kazi Ahmed Police Station where he lodged his report the same night, at 02-00 hours, with S. H. O., Muhammad Nawaz.
3. On 2-6-1973, all the three appellants were arrested by S. H. O. Muhammad Nawaz, Appellant Usman produced before the police and mashirs, Haji Iddan and Malook, a wrist watch and a knife from a tin trunk in his house, appellant Abdullah similarly produced before the same mashirs a danda and a wrist watch from a tin trunk in his house, while appellant Yakub produced from his house one danda, a shaving kit and a currency note of rupees fifty. On 8-6-1973, co-accused Uris, who died during the pendency of the case before the trial Court, was arrested and he produced before the police from his house in Hala Town a leather bag containing a wrist watch of Delux Co., one pehran, one towel, two vests, one trouser tape and some papers said to be of the Co-operative Depart--ment. .
4. On 7-6-1973, a footprint test was held by Mr. Abdul Qadir, Head Munshi and third Class Magistrate, in which tracker Fakir Muhammad is said to have correctly picked out the footprints of all the appellants. On 14-6-1973, the same tracker picked out the footprints of deceased Uris in another footprint test held by the Magistrate.
5. On 16-6-1973, Mr. Abdul Qader held an identification test in which P. Ws. Azizullah, Muhammad Mithal, Muhammad Khan, Abdul Wahid, Abdul Majeed and Lal Bux picked out the three appellants and deceased accused Uris, on the same day, Magistrate Abdul Qader held an identification test of watches in which P. Ws. Abdul Wahid, Mithal and complainant each picked out one of the watches recovered from the possession of the appellants and Uris.
6. The defence of the appellants was a complete denial of the prosecu--tion allegations. While denying that any property was recovered by the police from their possession, their case was that the property allegedly recovered has been foisted on them and that they do not claim the same.
The appellants have further claimed that they have been falsely implicated in the case by the then S. H. O. At the instance of Nawab Wazir Hassan with whom they have a dispute.
7. The direct evidence against the appellants consists of the ocular testimony of complainant Azizullah and P. Ws. Muhammad Mithal, Abdul Majeed and Abdul Wahid. Complainant Azizullah was the driver of the Wagon while the remaining P. Ws. Were passengers in it. Two of them, namely, P.
Ws. Muhammad Mithal and Abdul Wahid, bad sustained injuries in the incident. According to Dr. Mukhtiar Noorani, who had examined them at the Kazi Ahmad Rural Health Centre, Abdul Wahid was found to have a contusion swelling of both lips with one upper right central incisor tooth broken and three teeth, two central incisors and left lateral incisor, broken from the socket; while Muhammad Mithal had a lacerated wound on the right parietal region; a contusion swelling of lower lip and his lower incisor tooth was broken from the socket. The presence of the 4 witnesses on the Wagon journey and subsequently during the robbery thus cannot be doubted. In fact, even the learned counsel for the appellants did not dispute this fact. Ail the 4 eye-witnesses have deposed about the robbers having forced them to get down from the wagon, about 3 miles off from Kazi Ahmed, and then robbed them of their cash, watches and other belongings. Complainant Azizullah has deposed that he was robbed Rs. 200, in cash and his wrist watch of Seiko Grand make. P. W.
Mithal has stated that he was robbed of a wrist watch of Camy Company and a gold ring. P. W.
Abdul Majid has testified that he was robbed of Rs. 36, in cash and some papers. P. W. Abdul Wahid has stated that he was robbed of Rs. 610, in cash, a watch of Encyclopaedia Company, a suit-case containing clothes, shaving kit and office papers.
8. All the 4 eye-witnesses have testified that the appellants are 3 of the 4 persons who had robbed them and the other passengers of the wagon. As the faces of the robbers were not muffled and they were for a considerable time with the witnesses, both while they A ere travelling in the wagon and subsequently when they had relieved the passengers of their assets, the witnesses had ample opportunity of seeing the robbers and noticing their features and peculiarities. Although, apparently there was not much light at the place where the witnesses were robbed, there were two lights in the wagon in which the robbers and the witnesses had travelled together from Moro upto the place where the wagon was stopped. One of these lights was in the dash-board and the second in the roof of the wagon. These two lights clearly must have given enough illumination for properly observing the faces and features of the passengers of the wagon. Looking to all the circumstances of the case, particularly the fact that the robbers travelled with the passengers for a considerable distance in the wagon which was illuminated by the two electric lights, the witnesses clearly had enough time, opportunity and facility for clearly seeing and observing the robbers. All the 4 witnesses have been subjected to close cross-examination but they have remained unshaken in their testimony that the appellants are 3 of the persons who had robbed them. The witnesses were put to an identification test by Mr. Abdul Qadir, a Magistrate. That test appers to have been held very fairly and with due formalities. In that test all the 4 eye-witnesses were able to pick out the 3 appellants. Mr. Agha Ghulamali, the learned counsel for the appellants, has assailed the identification test on the ground that the test was held 12 days after the arrest of the appellants and that the probable reason for the delay in holding the test was to show the appellants to the witnesses before the test. However, the witnesses as well as S. H. O. Muhammad Nawaz have strongly repudiated the suggestion that the appellants were shown to the witnesses before the test. The delay in holding the identification test appears to have been due to the fact that P. W.
Mithal bad sustained a grievous hurt, in consequence of which he had to remain as an indoor patient in the hospital at Qazi Ahmed for 12 days. It would appear that the police considered it advisable to put all the witnesses to identification test at the same time and for this reason the identification test was postponed till P. W. Muhammad Mithal was discharged from the hospital and had sufficiently recovered. Another reason for the delay in holding the identification test appears to be that deceased Uris was arrested subsequently. According to A. S. I. Tasawwar Hussain Shah, he was arrested on 8-6-1973. In the circumstances, I am of opinion that delay in the holding of the identification test has been satisfactorily accounted for. The learned counsel for the appellants also referred to the admission of S. H. O. Muhammad Nawaz that one or two witnesses had come to the Police Station in between the arrest of the appellants and the holding of the identification test, for the purposes of enquiring about the progress made in the case, and from this fact the learned counsel wanted the Court to draw the inference that these witnesses must have been shown or seen the appellants before the identification test was held. However, as already stated, both the S. H. O. And the witnesses have strongly denied that the appellants were shown to the witnesses before the identification test. As such, from the mere fact that some of the witnesses had come to make enquiries at the Police Station about the progress of the case, no inference can reasonably be drawn that these witnesses must have either seen or been shown the accused before the identification test. The fact that all the 4 eye-witnesses had picked out the 3 appellants in the identification test is a very strong piece of evidence against the appellants.
9. The ocular evidence finds support from two independent pieces of evidence. The first is the footprint test held by Magistrate Abdul Qadir on 14-6-1973, through police tracker Fakir Muhammad, who had been shown the foot prints at the Vardat. He has testified that the footprints of the appellants tallied with 3 sets of foot-prints seen by him at the Vardat. No doubt, the footprints at the Vardat were of shod feet, the footprint test was held more than a fortnight after the incident, and moreover, tracker Fakir Muhammad is a police employee and not an independent witness. However, even after making allowance for all these circumstances, the foot--print evidence, though undoubtedly weak, does land a measure of support to the ocular testimony.
10. Finally, there is evidence of recovery of stolen property from each of the appellants. From appellant Abdullah's house a watch of Encyclopaedia Company, with white dial and a chain, was recovered in the presence of mashirs and at the pointation of the appellant. From appellant Yakub's house, currency note of Rs. 50, shaving articles, etc. Were recovered. As regards appellant Usman, a Camy Watch, with white dial and black belt, was recovered from his house. A watch arid other property, including papers and a bag with the name "Abdul Waheed" written on it, were also recovered from deceased accused Uris. Evidence regarding the recovery of the above articles from the appellants has been given by S. H. O. Muhammad Nawaz and mashir Muhammad Malook.
These articles have not been claimed by the appellants nor is there any evidence to show that they were foisted or them. I am accordingly in agreement with the view of the learned trial Court that these articles were recovered from the appellants, as alleged by the prosecution. The Camy Watch recovered from appellant Usman has been identified by P. W. Mithal as the one of which he was robbed. Similarly, P. W. Abdul Waheed has identified the Encyclopaedia Watch recovered from accused Abdullah as the one of which he had been robbed. The watch recovery from deceased accused Uris has been identified by complainant Azizullah as the one of which he was robbed. No doubt, the Encyclopaedia Watch recovered from accused Abdullah had a dial of a different Company but P. W. Abdul Waheed has explained that he got the dial replaced and as he could not get a dial of Encyclopaedia Company, therefore, he had got his watch fitted with a dial of another company. Thus, as against appellants Usman and Abdullah there is strong corroborative evidence of recovery of articles which have been identified and claimed by the witnesses. No doubt, none of the articles recovered from appellant Yakub has been specifically claimed by any of the witnesses as they were apparently not shown to them but on the one hand these articles are not such as could legitimately be owned by this appellant and on the other hand he himself ha not claimed the same. I am, therefore, of the view that the recoveries from appellant Yakub do lend some support to the strong ocular evidence against him.
11. For the foregoing reasons, I am of opinion that the case against all the 3 appellants has been established beyond any reasonable doubt. The minimum sentence for an offence under section 394 read with sec--tion 397, P. P. C. Is 7 years' R. I. And they have been awarded this minimum sentence. No reduction consequently is possible in the sentence awarded to the appellants. I would accordingly maintain the convictions and the sentences of the appellants and dismiss their appeal.