' KHAWAJA MUHAMMAD SHARIF, J.---This appeal is directed against the judgment dated 9-1-2002 passed by the learned Magistrate Section 30, Mianwali, whereby, having tried the appellant in the case registered vide F.I.R. No, 4 dated 1-1-2000 under sections 393/397/324/34, P.P.C, Police Station Pai Khel, Mianwali, the appellant was convicted under section 397, P.P.C. And sentenced to seven years' R.I. Coupled with benefit of section 382-B, Cr.P.C. His co-accused Akram was convicted and sentenced separately.
2. The prosecution story, as unfolded through F.I.R. Registered on the statement of the complainant Muhammad Saleem, briefly stated is that he is the shopkeeper; that on the evening of 1-1-2000, after closing his shop, was going back to his house along with Muhammad Siddique and Muhammad Akram when they were stopped in the area of bridge canal by two unknown armed persons and one of the said assailant fired at them which hit the complainant on his right thigh whereupon he raised hue and cry whereafter the accused made good their escape and that the appellant and his co-accused were later on booked up in the case on the basis of their extra judicial confession.
3. After having completed usual formalities and investigation of the case, the police submitted challan against the accused before the learned Court of competent jurisdiction, where, in order to prove its case the prosecution examined 13 witnesses.
4. The accused, when examined under section 342, Cr.P.C. Denied the prosecution case, attributed their involvement in the present case to false implication and claimed trial.
5. Learned counsel for the appellant, in support of this appeal contended that the appellant has falsely been implicated in the occurrence which took place in the dark hours of the right; that the appellant was not named in the F.I.R; that no identification parade was held in the case to connect him with the offence; that the recovery has been planted on him; that the eye-witnesses are closely related to the injured Muhammad Saleem; that the impugned judgment has been passed against the weight of evidence on record; that it is based on surmises and conjecture; that the prosecution has failed to prove its case against the appellant beyond reasonable doubts and that, in the afore-referred circumstances, the appellant is entitled to acquittal from this Court.
6. On the other hand, while defending the impugned judgment of conviction, learned counsel for the State submits that there is no enmity of the complainant with the appellant for false implication; that the eye-witness account corroborated by the extra-judicial confession is sufficient to lead conviction of the appellant and that since the prosecution has proved its case against the appellant beyond an iota of doubt, therefore, in the afore-referred circumstances the appeal filed by the appellant against the said judgment is liable to be dismissed.
7. I have heard learned counsel for the parties, have gone through the impugned judgment and the record with their able assistance and have also given exhaustive consideration to the arguments of the respective parties.
8. First of all I would like to deal with the question whether the conviction under section 397, P.P.C. Is legal. The answer is "No". For a just decision of the case, it is imperative to quote section 397, P.P.C.
Which reads as under:-- "397. Robbery or dacoity, with attempt to cause death or grievous hurt.---If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years."
' A bare perusal of the above provision of law would show that neither there was any allegation of commission of robbery of dacoity or it was in that process that the appellant had fired at the complainant and had caused him injury. So I am of the considered view that no offence under section 397, P.P.C. Is made out. Even otherwise, name of the appellant was brought on record by the learned defence counsel, as the assailant who was further found to have fired at the complainant.
He is the star witness of the case and is the A best witness of his own case. He cannot be declared to be an interested witness either. Then there is evidence of his father and brother-in-law who have fully implicated him in the instant case. The .Above prosecution evidence was further corroborated by the extra-judicial confession of the appellant. Recovery was also effected on the pointation of the appellant. As per report of the Fire-arm Expert, crime empty recovered from the spot was matched with the weapon of offence. So the ocular account is corroborated by the medical evidence.
9. After having adjudged the case from every angle, having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has proved case against the appellant under section 324, P.P.C. Read with section 337-F (i), P.P.C.
And not under section 397, P.P.C. The same is converted as such. In this regard I am fortified with a famous judgement of the august Supreme Court of Pakistan reported in Zulfikar Ali Bhutto v. The State PLD 1979 Supreme Court 53, wherein the apex Court of the country, in paragraph 826 of the said judgment, observed as under:- "826. The survey of the cases shows that the law as embodied in sections 236 and 237 of the Criminal Procedure Code read together appears to be that if on the facts alleged it was doubtful which of several offences the proved facts will constitute and on the fact eventually proved, of which the accused may be taken to have notice during the recording of evidence at the trial an offence other than the one charged has been committed, then he may be convicted of this other offence, even though he was not charged with it. Their Lordships of the Privy Council have indeed put it simply and shortly by saying that a man may be convicted of an offence although there has been no charge in respect of it if the evidence is such as to establish a charge that might have been made."
' Consequently, the appellant is convicted under section, 324 P.P.C. And sentenced to five years' R.I.
With a fine of Rs, 10,000'in default whereof to further undergo three months' S.I. The injury caused by him to the appellant falls within the ambit of section 337-F(i), P.P.C. And under which he is sentence to one year's R. I. With a Daman of Rs, 10,000 in default whereof to further undergo three months' S. I.
Both the sentences shall run concurrently and benefit of section 382-B Cr.P.C. Shall be extended to him.