The appellants are aggrieved by the judgment dated 28.2.2004 passed by the Additional Sessions Judge, Punjgur, whereby both the appellants were convicted and sentenced under Section 20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with Section 392 PPC for 10 years R.I. with fine of Rs. 75,000/- each in default thereof accused persons shall suffer S.I. for one year each with benefit of Section 382-B, Cr.P.C.
2. Briefly the facts as stated in the impugned judgment are that the complainant Mehrdil a shopkeeper lodged an FIR on 18.2.2001 alleging therein that Muhammad Akram, Sajjad and an other person whose faces were muffled came to his shop situated at `Duznap' at about Maghrib time and demanded money otherwise face dire consequences. On his refusal accused Muhammad Akram who is appellant herein fired at him which hit his right hand which injured him. His brother Murad Bakhsh was present at that time. He tried to catch hold of the appellant Muhammad Akram but the accused persons fled away from the scene on their motorcycle.
3. A case under Section 17(2) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was registered. During the course of investigation, two accused Sajjad and Maula Bakhsh were arrested by the Police while remaining accused persons remained absconding. At the commencement of trial, charge was framed and read over to the accused persons in `Balochi language' to which they pleaded not guilty and claimed trial.
4. The prosecution produced as many as five witnesses. PW.1 Murad Bakhsh and PW.3 Mehrdil are witnesses" of the incident in question, whereas no where PW.1 Murad Bakhsh in his deposition had said a single word against Maula Bakhsh. PW. 1 the complainant Mehrdil during the course of his examination was unable to identify the said accused in the trial Court. In his application under Section 265-K Cr.P.C. he was acquitted by the learned trial Court vide judgment dated 25.4.1991.
5. PW.1 Mehrdil deposed that on 18.2.2001 he was present at his shop situated at Duznap at about 3.00 and 4.00 p.m, when accused/appellants Dad Jan and Muhammad Akram, alongwith Sajjad (since acquitted) entered inside the shop while appellant Muhammad Akram armed Kalashnikov at him. Appellant Dad Jan was armed with T.T. Pistol. Appellant Akram fired at him and the bullet hit his right hand on his refusal to hand over money. He fell down due to injuries. His brother Murad Bakhsh tried to catch hold of appellant Muhammad Akram but since appellant Dad Jan was armed with T.T. Pistol his brother could not succeed to apprehend appellant Muhammad Akram.
The accused went towards Chitkan Bazar on their motorcycle. He lodged FIR against accused persons with P.S. Panjgur. In cross-examination he stated that three persons were boarded on motorcycle, but only two accused persons had entered into shop while the third one remained outside on motorcycle. He denied. that appellant Akram was not in company with accused Dad Jan on that day and that appellant Akram was not armed withkalashnikov or that he did not fire on him.
6. PW.2 Dr. Shakeel Ahmed is Medical Officer. He deposed that on 18.2.2002 at 7.30 p.m. injured Mehrdil (complainant) was brought for examination. He gave details of the injuries. In cross- examination he denied that he issued MLC at the instance of complainant.
7. PW.3 Syed Ahmad (Naib Nazim U.0 Essai) deposed firstly what the complainant had told him. It was thus a hearsay. He was informed on telephone, about the incident and went to the shop of Mehrdil, where he found blood of Mehrdil. He took along complainant Mehrdil to Hospital for treatment, where the injured told him that accused persons present in Court namely appellants Akram and Dad Jan injured him who entered into the shop with an intention to commit dacoity. In cross-examination he stated that complainant Mehrdil is his relative.
8. PW.4 Murad Bakhsh is an eye-witness of incident and came to the shop of his brother to help him. He was seated on a bench in the shop of his brother, when the accused persons Akram, Dad Jan and Sajjad (since acquitted) passed by the shop 2/3 times whereafter accused persons came the third time and parked their motorcycle in front of the shop. Appellant Akram armed with Kalashnikov entered into the shop while appellant Dad Jan armed with T.T. Pistol stood at the door.
Appellant Akram told Mehrdil his brother to take out money and hand it over to them. His brother replied 'don't be a joker' whereupon Akram fired on theleft arm of his brother while accused Dad Jan aimed his T.T. pistol on him. Thereafter, the appellants went away on their motorcycle, which was being driven by accused Sajjad. He identified accused Dad Jan and Akram present in the Court. In cross-examination he stated that the motorcycle of accused persons was, parked at a distance of a few steps. He recorded his statement to police on the day of incident.
9. PW.5 Muhammad Tahir is the recovery musheer and he deposed that on 18.2.2001 he was posted as constable at Police Station Panjgur. At 7/8 p.m. he was present at police station, when information of incident was received. He alongwith SHO and other police officials went to the shop where they found blood on a wooden board, blood stained earth/soil, Chappal, a 125 CC Motorcycle and an empty which he produced in the Court vide recovery memo Ex.P5/A.
10.PW.6 Hassan Noor (SIP) deposed that on 18.2.2001 he was posted at Panjgur police station, when FIR was registered. Investigation of the case was entrusted to him. He went at the spot alongwith Tehsildar Panjgur and levies officials as it was night and there was darkness. He made arrangements for lighting. He prepared site-plan and produced as Exp/6-A on which he identified his signature. The motorcycle used in the commission of offence, blood stained soil, blood stained wooden board and an empty were taken into police custody through recovery memo. He recorded the statements of witnesses Dad Muhammad, Muhammad Tahir, Naib Tehsildar Muha and Rafiq, Murad Bakhsh and Naib Nazim Syed Ahmed under Section 161 Cr.P.C. During the course of investigation he was transferred and he handed over the file to SHO Muhammad Karim.
11.PW.7 Suleman Khan (SIP) Investigating Officer deposed that on 18.2.2001 he was posted as Investigating Officer at Panjgur police station when on the report of complainant Mehrdil, FIR was registered. Initial investigation was carried out by Hassan Noor SIP, Abdul Karim IP/SHO, Syed Akbar Shah SIP and Muhammad Gul SI/SHO. On 15.3.2003 investigation was entrusted to him and on 18.3.2003 he arrested appellant Dad Jan and on 20.3.2003 appellant Muhammad Akram was arrested. During the course of investigation the appellants confessed their guilt and he recorded their statements under Section 161 Cr.P.C. He identified the appellants Muhammad Akram and Dad Jan present in the Court.
12.After completion of prosecution evidence, statements of appellants under Section 342 Cr.P.C. were recorded wherein the appellants denied all the allegations levelled against them by the prosecution. Appellant Dad Jan opted not to examine himself under Section 340(2) Cr.P.C. nor he produced any witness in his defence. However, the appellant Akram recorded his statement on oath as, provided, under the provisions of Section 340(2) Cr.P.C. and he produced a witness in his defence.
13.In his statement under Section 340(2) Cr.P.C. appellant Muhammad Akram deposed that from 13.2.2001 to 26.2.2001 he remained under treatment and admitted at Civil Hospital Liyari Karachi. His cousin Aadil had accompanied him alongwith Pazeer Ahmed. He has no concern with the alleged incident nor he fired upon the complainant Mehrdil.
14.DW.1 Pazeer Ahmed deposed that on 13.2.2001 to 26.2.2001 appellant, Akram was under treatment at Civil Hospital Karachi and accordingly admitted there. Being his cousin he had accompanied him to look after him. He produced the copy of medical certificate issued by the doctor as mark DW/1-A. Appellant Akram made no firing upon the complainant Mehrdil.
15.Appellant Akram had raised the plea of Alibi that he was under treatment at Civil Hospital and admitted there. DW. 1 Pazeer Ahmed had produced a copy of medical certificate dated NIL from Civil Hospital Karachi (out door patients department) which certified that Muhammad Akram son of Peer Muhammad had been suffering from Peptic ulcer and advised rest from 13.2.2001 to 26.2.2001. This plea of the appellant Akram that he was admitted in Civil Hospital, Karachi stands rebutted by his own documentary evidence namely the medical certificate which is in respect of out door patients, is undated and merely A states that the appellant was advised rest from 13.2.2001 to 26.2.2001. No where this certificate says that at any point of time he was admitted in the hospital for his treatment. Hence the plea of alibi raised by the appellant Muhammad Akram is untenable and rejected.
16.As far as the prosecution case is concerned there is overwhelming proof of commission of Offence by the appellants, Except very minor and negligible contradictions here and there, the evidence adduced by prosecution witnesses remained firm and unshaken. The impugned judgment is based on sound appreciation of facts and is neither exceptionable nor assailable.
17.Learned counsel for appellant urged before me that the appellants are young boys and are bread winners of their families and were never involved in any criminal case. There might be an attempt to rob the complainant but nothing was taken away by them. The punishment for ten years R.I. and fine of Rs. 75000/- to-each of them is rather too harsh for them. Besides they have remained in judicial lock up for about three years and seven months, therefore in any case their sentence may be reduced.
18.Learned Additional Advocate-General, 'Baluchistan, Mr. Aminuddin Barzai concedes that the appellants are young boys and according to the best of his belief they are bread winners of their families and their case for reduction of their sentence may be considered on compassionate grounds.
19.These are the reasons for maintaining the conviction of the appellants and of reducing the sentence of appellants Muhammad Akram and Dad Jan to five years R.I. each and of fine to Rs.
25000/-each or in default three months S.I. with benefit of Section 382-B, Cr.P.C. vide my short Order dated 20.11.2006.