' DR. RANA MUHAMMAD SHAMIM, J.---Through instant appeal, the appellants have assailed the judgment dated 19-12-2003 passed by learned I-Additional Sessions Judge Thatta whereby they were convicted and sentenced to undergo R.I. For seven years each for committing offence punishable under section 398, P.P.C. Registered at P.S. Kinjhar Lake vide F.I.R. No, 2 of 2001.
2. Brief facts of the case are that on 7-2-2001 complainant SIP Syed Anwar Hussain Shah, SHO of P.S. Kinjhar Lake was on patrolling in police mobile vide Entry No, 15 with A.S.-I. Moula Bux, PC Liaquat Ali, PC Mumtaz Ali and PC Allah Bux. On 8-2-2001 at 2-30 a.m. While he was at Chilya Bus Stop he received spy information that four armed persons are available at Link Road leading to Khumbo Bus Stop to Abdullah Gandro Village for committing some crime. On such information they reached at the pointed place and in the headlights of the police mobile found four persons placing the stones to block the road who on seeing police , party tried to flee away but apprehended and on inquiry disclosed their names as Rashid Ahmed, Abdul Ghaffar, Abdul Wahid and Muhammad Ayub. Rashid was found to be in possession of Mauser with a magazine containing eleven live bullets while the remaining were having hatchet. They were arrested and such mashirnama was prepared by the complainant in presence of A.S.-I. Moula Bux and PC Liaquat Ali and the accused were brought at P.S. Where they were booked under sections 401 and 398, P.P.C. While a separate F.I.R. Was also lodged against Rashid for having unlicensed Mauser.
3. A formal charge against the accused persons was framed under sections 398 and 401, P.P.C. To which they pleaded not guilty and the trial commenced in which the prosecution examined P.W.1 complainant SIP Anwar Hussain Shah (Exh.8) who produced mashirnama of arrest and recovery (Exh.8/A), F.I.R. (8/B) Entry Nos.15 and 18 of Daily Diary (8/C) and P.W.2 A.S.-I. Moula Bux (Exh.9) where after they closed the side vide Exh.10. Thereafter statement under section 342, Cr.P.C. Of accused persons were recorded in which they denied the prosecution case. They neither examined themselves on oath nor led any evidence in their favour.
4. The learned trial Court in the light of the material placed before him and so also after hearing learned counsel for the parties framed following points for determination:--
(1) Whether the present accused being the members of gang of persons associated for the purpose of committing the robbery, attempted to commit robbery on the relevant date, time and place as alleged?
(2) What offence, if any, committed by the accused? ' and decided point No,1 in affirmative and consequently convicted the appellants vide impugned judgment, as stated above, hence this appeal.
5. Learned counsel for the appellants has contended that the learned trial Court has not passed the impugned judgment by applying its judicial mind. He contended that the learned trial Court has failed to consider the fact that the testimony of complainant was not worthy of reliance; that the P.Ws have not said a single word regarding the attempt to commit the robbery; that there are material contradictions in the depositions of the witnesses, even they have contradicted on the date, time and place of incident; that one P.W. Deposed that the accused persons ran away for few paces while other P.W. Deposed the same to be one furlong; that since no quantity or quality evidence is brought on record, the impugned judgment is liable to be set aside, he further submitted that no private persons were associated to witness the arrest of the appellants and alleged recovery of arms there from was doubtful and the police witnesses are interested witnessed and no conviction can be based on their testimony; that the learned trial Court has also failed to appreciate that the ingredients of section 398 is that the accused must armed with deadly weapons, which in the instant case are missing; that no evidence is brought on record to substantiate the claim of the prosecution that the appellants were attempting, to commit robbery or docoity; no alleged recovered arms were produced in the learned trial Court. In support of his contentions, he has placed reliance on the cases of Ali Nawaz and 2 others v. The State PLD 1996 Kar. 146 and a case of Hameer and others v. The State 1992 PCr.LJ 2030 and prayed that the appeal be allowed and the appellants be acquitted by giving them the benefit of doubt.
6. Learned Assistant Advocate General on the other hand has supported the impugned judgment by arguing that the reasons assigned for the conviction in the impugned judgment are well founded; that no question of recovery was put to the P.Ws; that the enmity was alleged by the appellants against the police but the same has not been proved in the evidence; that no explanation was offered by the appellants to be present at the place of incident during odd hours; that the judgment, if any, passed in the offence under section 13-D Arms Ordinance against accused Rasheed is placed on record. He submitted that about non-associating independent witnesses the complainant has given an explanation that at odd hours the private witnesses were not available, hence police officials present were made the witnesses of arrest and recovery. He further submits that police officials are as good witnesses as other citizen unless any malafides or enmity is proved against them. In support of it he relies upon a case of Sarfraz v. The State (2007 SCMR 830), a case of Malik Aman v. The State 1986 SCMR 17, a case of Muhammad Shah v. The State 1984 SCMR 278, case of Muhammad v. The State PLD 1981 SC 635, a case of Rehan v. The State 1976 SCMR 72 and in a case of Emperor v. Santa Singh (AIR 1944 Lahore 339). While concluding his arguments learned A.A.-G for the State submitted that the evidence which has come on record has rightly been appreciated and the appellants were rightly convicted and sentenced for seven years R.I. He relied upon a case of Ahmed v. The State PLD 1963 SC 737 and a case of Khadim alias Khooni v. The State PLD 1971 Lahore 776. He, therefore, prayed that since there is no infirmity or illegality in the impugned judgment hence the appeal is liable to be dismissed.
7. I have heard both the learned counsel and with their assistance have gone through the material available on record. Admittedly the appellants were apprehended at 2-45 a.m. On the spot and no explanation was offered of their presence duly armed at odd hours of night. The complainant has specific information of their having present duly armed with intention to commit robbery in a particular place and informer has lead the raiding party on the place of incident and the appellants who were present duly armed for the purpose of attempt to commit robbery, were arrested. The mashirnama of recovery of arms prepared with the help of the headlights of police mobile was not challenged. The appellants made allegation of enmity against the complainant and other member of raiding party and due to enmity they were falsely implicated. No material or any evidence of enmity was produced as proof of such enmity. The complainant has offered explanation for non-availability of independent witness of recovery during such odd hours of night.
The prosecution has placed on record the entries of Roznamcha i.e, Entry Nos. 15 and 18 dated 7-2- 2003 and 8-2-2003 respectively as Exh.8/C for departure and arrival of the raiding party about arrest of appellants and recovery of weapons therefrom. I agree with the learned trial Judge holding that non-production of weapons are not fatal to the prosecution as the moshirnama of the recovery of weapons has already been exhibited on record which indicates that one mauser was recovered from appellant No,1 and three hatchets were recovered i.e, each from appellants Nos.2 to 4 and the weapons were not robbed property. The prosecution witnesses have deposed that the weapons were in their possession at the time of their attempt for robbery and they were apprehended and arms were recovered therefrom. The mushirnama of such recovery was prepared on the spot in the presence of witnesses with the help of headlights of the vehicle/police mobile. The case of the recovery of unlicensed weapons/arms under the Arms Ordinance was separately tried before the Judicial Magistrate where the recovered weapons/arms in question were produced during trial. The case before the learned trial Court was the attempt to commit robbery against the appellants who were apprehended duly armed. They were charged under section 398, P.P.C. Which reads as follows:--- ' "Section 398, If at the time of attempting to commit robbery or decoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not less than seven years.".
8. From the above the inference can be drawn that if through an unambiguous and direct evidence it is proved that the culprits were apprehended for attempting to commit robbery or dacoity with deadly weapons, they shall be punished for not less than seven years.
9. In a case of Khadiin alias Khooni v. The State (supra) it was held that mere attempt was considered to be more heinous by the legislature than the completed offence of robbery or dacoity, when the offender was carrying a dangerous weapon; in a case of Rehan v. The State (supra) the Hon'ble apex Court has held that mere fact that both the witnesses of recovery were police officials is not reasonable ground for disbelieving them; in a case of Malik Awan v. The State (supra) the Hon' ble apex Court maintained the conviction on the sole testimony of police witness; in the case of Sarfraz v. The State (supra) the Hon'ble apex Court was pleased to hold that the statement of police witness could be relied upon if his testimony remained unshattered during cross-examination and in absence of any rancour, enmity or ulterior motives to implicate the accused.
10. That case law referred by the learned counsel for the appellants are distinguishable from the facts of the case. The appellants failed to establish enmity with the complainant and Musheers (police officials) through any material on record or any other corroborative evidence to their such claim. In my humble view no C illegality, infirmity, misreading or non-appraisal of evidence is pointed out warranting interference in the impugned judgment of the learned Trial Court.
11. In view of the above discussion, I do not find any force in this appeal which is consequently dismissed. The convictions awarded to the appellants by the learned trial Court is maintained. The appellants are on bail and their bail bonds are cancelled. The appellants be taken into custody to serve their remaining sentences.