' ZAFAR PASHA CHAUDHARY, J.--- Vide judgment dated 11-1-2005 Raja Jawad Abbas Hassan, Acting Sessions Judge, Dera Allahyar convicted Yasin and Nadir Shah, appellants under section 394, P.P.C.
And sentenced them to suffer 4 years' R.I. Each and to pay a fine of Rs,5,000 each. In default of payment of fine to further suffer S.I. For six months, each. Both the above said appellants have also been convicted under section 337-F(ii), P.P.C. For causing' hurt (Badiah) to Ali Haider and sentenced them to suffer one year's R.I. Each. Each has been ordered to pay Daman of Rs,2,000 to injured Ali Haider. In default thereof the appellants shall remain in custody till the amount of Daman is realized.
' Both the sentences of imprisonment have been ordered to run concurrently. The benefit of section 382-B, Cr.P.C. Has been extended.
2. Five persons were found guilty during course of investigation and report under section 173, Cr.P.C.
Was submitted. Yasin and Sayyed Nadir Shah were sent up to face trial whereas the three co- accused namely Gulzar, Bahawal and Dildar neither surrendered nor could be apprehended, therefore, they were declared as absconders.
3. The learned trial Judge framed charge against Yasin and Nadir Shah on 24-8-2004, charging them that on 15-7-2004 at about 12-30 p.m. At Sim Shakh Bridge within the vicinity of Azam Khan Khosa Rice Mill, they (the appellants) along with their absconding co-accused in prosecution of their common object by arming themselves by TT pistol tried to snatch the car (Toyota Corolla) bearing Registration No,ABT540/Karachi from complainant Haji Ali Haider. During course of commission of Harrabah they inflicted bullet injury on the person of Haji Ali Haider as such committed offence punishable under section 17(2) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). Subsequently their co- accused Bahawal was also arrested. Fresh charge was framed on 18-10-2004 with the similar indictment against Gulzar, Dildar and their co-accused Bahawal. They all were charged under section 17(2) of the Ordinance for an attempt to commit Harrabah and also inflicting fire-arm (bullet) injury to Ali Haider. All the three accused pleaded not guilty and as such claimed trial.
4. The prosecution in support of the charge examined eight witnesses. Out of them P.W.1 Ali Haider is the victim and complainant, therefore, he is the most important witness. Next in line is doctor Abdul Jabbar, (P.W.2) who medically examined Haji Ali Haider, the complainant. The rest of the witnesses are from police and they have supported the complainant's version in totality.
5. Ali Haider, who was present in the taxi stand along with his taxi car as its driver, deposed that Yasin, appellant came to him and hired his taxi upto Mohabbat Pur and Rs,600 was settled as fare.
Yasin was accompanied by a woman who was in "Burqa" and was dressed in feminine clothes.
They all started for Mohabbat Pur. The woman posed herself as the wife of Yasin. When the taxi carrying complainant, appellant Yasin along with the so-called woman reached Sim Azam Khan Rice Mill, Yasin asked the complainant to stop the taxi as his wife wanted to ease herself. The car was stopped; it was about 12-30 p.m. The woman alighted from the taxi who was armed with a pistol. She threatened the complainant on pistol point to abandon his taxi car. The complainant refused to leave the car on which the so-called woman unveiled herself, she turned out to be a man namely Nadir Shah (appellant). Nadir Shah was known to the complainant; he fired a shot with his pistol hitting complainant on his arm. After inflicting fire-arm injury, both the appellants i,e, Yasin and Nadir Shah, gave beating to the complainant with kicks and blows. On hearing the report of fire shot a number of persons from nearby vicinity got attracted to the place of occurrence. On seeing the people approaching, the appellants/robbers fled away.
6. The matter was reported to the police where after necessary investigation ensued. The police summoned the complainant to the police station on 18-7-2004 and asked him to identify the culprits. The complainant correctly picked up Yasin and Nadir Shah and identified them as the offenders. He was subjected to cross-examination but nothing could be brought on record even to indicate as to why the complainant would falsely implicate the appellants. No motive or any other reason could be brought on record to show that the witness falsely implicated the appellants.
' Doctor Abdul Jabbar (P.W.2) medically examined the complainant on 15-7-2004. He observed the following injuries on his person:-
(1) A lacerated punctured type of wound (wound of entry) diameter 1/4 c.m. Situated on the right deltoid region.
(2) A swelling about 3 c.m. In diameter situated on the back of the chest (right upper region).
' The nature of injury was declared as "Ghayr Jaifah Mutalahimah". On dissection of the injury a bullet was recovered from the body of Ali Haider complainant. As already noted injury No,1 was declared as "Ghayr Jaifah Mutalahimah".
' The rest of the witnesses as mentioned above, are from police. They fully supported the complainant's version. They also deposed about the various functions performed by them during course of investigation.
7. ' On close of prosecution evidence the accused were examined under section 342, Cr.P.C. They came forward with plain denial. No explanation was given as to why and how they have been implicated.
8. The learned trial Judge on conclusion of the trial after discussing and assessing the prosecution evidence in detail categorized the prosecution evidence into four categories.
(i) Direct ocular evidence.
(ii) Medical evidence.
(iii) Recovery of crime weapon and
(iv) Circumstantial evidence.
' Ali Haider complainant, who is the victim, has furnished the direct ocular evidence. He sustained fire-arm injury at the hands of the appellant. Apart from his oral statement that he was present along with his taxi, it is also supported and corroborated by the fire-arm (bullet) injury received by him during the course of Harrabah/robbery. The medical evidence as described (supra) comprises of the statement of doctor Abdul Jabbar (P.W.2). Ali Haider was medically examined and a fire- arm/bullet injury was found on his person. The medical evidence is further supplemented by recovery of crime weapon. By producing all these pieces of evidence the prosecution has successfully discharged its onus by proving beyond doubt that the appellants caused hurt on the person of Ali Haider and also that they tried to forcibly snatch the complainant's taxi as such an attempt in this regard was made. The prosecution story is amply supported by the attending circumstances. The complainant was contacted at the bus stand, his taxi was hired on payment of Rs,600 as fare. Nadir Shah disguised himself as woman. The taxi was taken to distant place under a false pretext. The complainant was threatened to hand over the taxi on pistol point. On refusal he was shot at and fire-arm injury was inflicted on him. The statements made by the complainant as well as his supporting witnesses are consistent and natural. The prosecution story is quite convincing and does not in any manner appear to be a fabrication. The learned trial Judge has rightly weighed and assessed the evidence. The impugned judgment regarding the appellants' conviction is supported by cogent reasons and based on sound discussion.
9. The learned defence counsel has not been able to demonstrate or I even to point out any illegality or infirmity in the impugned judgment, which may call for interference by this Court.
' On the other hand the learned counsel for the State has argued that the learned trial Judge treated the appellants very leniently and adequate punishment has not been imposed by applying the relevant penal provision. Since the State or the complainant has not filed any revision or appeal against the impugned judgment, therefore, this contention cannot be entertained.
10. As a result of the above discussion, the appellants' conviction and sentence is held to be sustainable. The appeal has no merit, the same D is dismissed.