1. ' MRS. YASMIN ABBASEY, J.---Case of prosecution is that after receiving wireless message from Police Station 'C' section, Sukkur that two persons had robbed one Toyota Corolla car bearing registration No, KAR 3127, complainant Muhammad Hanif Mangrio, S.H.O, P.S. Ghotki to have Nakabandi proceeded towards national highway along with his staff near Raja cotton factory. At about 1345 hours, pointed Toyota Corolla was found coming from Sukkur. Two persons were found sitting. It was signaled to stop but in spite of stopping driver of car accelerated speed and tried to hit police party. In that attempt vehicle went out of control of driver and hit to a tree at the distance of about 20/25 paces from road side. Culprits got down from the car with weapons in their hands.
2. Both of them directly fired on police party with their pistols. Police also made firing in defence.
3. Encounter continued for about ten minutes. Thereafter both culprits surrendered before police.
4. They were taken in custody along with weapons. On enquiry they disclosed their names as Mushtaq Ahmed and Riaz Ahmed. 30 bore pistols were recovered from both the culprits with six live bullets and one magazine from appellant Mushtaq Ahmed and one magazine and two live bullets from appellant Riaz Ahmed. Both of them did not possess licence of the weapons. On enquiry they disclosed that they robbed this car from old Sukkur. Four empty shells of .30 bore and 30 shells of 7.62 and 17 shells of G-III rifle were collected from the place of incident. Due to non availability of private persons police officials of patrolling party were taken as Mashirs. Thereafter accused and robbed property were brought at Police Station. As both appellants were injured because of hit of car with tree, therefore after registration of case, they were referred to Taluka hospital Ghotki for medical treatment.
5. ' To bring guilt at home prosecution has examined three witnesses, consisting of SIP. Muhammad Hanif who arrested both the culprits during patrolling. H.C. Muhammad Usman who was one of the members of patrolling party headed by SIP. Muhammad Hanif and A.S.-I. Abdul Haleem the Investigating Officer.
6. ' After reading evidence of prosecution witnesses, it is contended by learned counsel for appellants that they have been falsely implicated in the matter because if prosecution story of encounter in between the parties at the time of arrest of these appellants, as stated is assumed to be correct then it is unbelievable that in an encounter with heavy rounds and with short distance in between both parties none of the members of either party could receive any injury particularly when place of incident was an open place with no place to save themselves. It is further contended that besides two appellants there was one other person also who was driver of car but that person has been let off by police. Both these appellants were passengers in car and rode therein from bus stop Rohri and have no connection with robbery of this car.
7. ' To arrive at a proper decision detailed scrutiny of evidence produced by prosecution is required.
8. ' Both witnesses of raiding party Muhammad Usman and Muhammad Hanif, S.H.O. Police Station Ghotki, who after receiving information through wireless, with its detection were able to arrest and secured properly. In their examination-inchief they had detailed the incident happened on 4-2- 2005. They are so affirm and confident because of their successful raid that not a single iota of difference is appearing in their statement that after wireless message, they kept an eye on the vehicles passing on National Highway and about at 1345 hours found robbed vehicle in speed from Sukkur side. It was signalled to A stop but driver of car tried to hit police party, but they saved themselves. In that attempt car went out of control and stopped with hit to a tree. As per both P.Ws.
9. Both appellants tried to combat by filing on police party but could not succeed and were arrested by police in injured condition due to dash of car with tree. Car in damaged condition was brought at Police Station through tractor. Both appellants were IA referred to hospital for medical treatment.
10. Both prosecution witnesses were cross-examined by defence counsel, but in spite of lengthy cross-examination to them, B defence counsel was not able to bring any material contradictions in their statements.
11. ' Only defence of appellants is that car was driven by one third person and they only being passengers boarded therein for going to their home at Rahim Yar Khan. This defence of appellants in their 342 Cr.P.C. Statements does not corroborate to the defence taken by them in cross- examination of P. W.2 in form of suggestion that "It is incorrect to suggest that accused Mushtaq was falsely implicated by me in this case after arresting him from Ghotki bus stop".
12. On the contrary when clear statement was made by PW.2 in cross that:-- "Both accused were sitting on front c seat in car". "Accused voluntarily came out of car in injured condition. Accused were conscious as they got simple injuries".
13. No suggestion question denying the above statement was put to P.W.
2. It is settled principle that fact stated if not specifically denied will be deemed to have been admitted. In the circumstances it was rightly observed by learned trial Court that:-- "Even no suggestion of whatsoever has been given to any witness that accused were not in knowledge that a car in which they were travelling was robbed or stolen property in spite of the fact that complainant and Mashir in their examination-in-chief have stated that accused have themselves admitted that car recovered from them is robbed property."
14. ' According to prosecution after hit of car when car stopped both these appellants started firing on police party. After their surrender fire-arm weapons were recovered for their possession. Although it is admitted that weapons were not sealed at the spot and the Investigating Officer of this case is also not confirmed that whether same were sent to Ballistic Expert for examination or not, but that is not subject-matter of this appeal, as separate cases under section 13(d) Arms Ordinance, were registered against these appellants and that were separately tried.
15. ' To show their innocence that they were just passengers, a question was put to P.W.2 that in fact car in question was recovered from dacoits Qurban Jagirani and Raja Gadani and they were let off by him at the instance of one brother of DPO, Jagirani, but this defence taken up by appellants in cross-examination of P.W.2 had not been taken by both of them in their statements under section 342 Cr.P.C. The inconsistable defence taken by appellants at different stage, certainly belies their defence of false implication and are material to examine the veracity of appellants.
16. ' According to appellants after accident of their car they became unconscious and regain their senses at hospital, whereas according to P.W.2 because of hit of car with tree appellants received minor injuries. ' They were conscious and made firing on police party. To support his statement, pistols used in the commission of offence and empties said to be recovered from the place of incident fired by both the police party as well as appellants have been produced. Their production has not been disputed by appellants at any stage. So even if appellants stand on their statement of becoming unconscious in order to show that they were not involved in the commission of offence alleged against them under section 353, P.P.C. Neither medical certificate of these appellants nor doctor concerned, who examined and treated these appellants have been produced on record by them.
17. ' Learned counsel further argued that in spite of availability of private persons at the place of incident, they were not taken as Mashirs of the case and police officials have been shown as witnesses of the incident. A contradictory statement made by P. Ws. 2&3 in this regard have been referred by learned counsel for the appellants to refute prosecution story of happening of this incident. According to P.W.2 no private person was available at the moment, whereas according to P.W.3, 2/3 persons came at the place of incident, but this minor contradiction in the statements of prosecution witnesses can not be given too much importance particularly when beside proceedings registered under section 381-A P.P.C. In crime No,4/2005 sufficient definite and sound evidence by placing judgment given in:---
(i) Criminal case No,417/2006 registered under Crime No,314 of 2006 under sections 223, 224, 225-A, P.P.C;
(ii) Criminal case No,118/2005 under Crime No,24/2005 under section 411-A P.P.C;
(iii) Criminal case No,19/2005 under No,20/2005 under section 381-A P.P.C.
18. Wherein both these appellants were convicted on admission of their guilt, has been placed on record, which proves that these appellants are habitual offenders.
19. ' Perusal of above judgments wherein both appellant: vehemently confessed their guilt shows that they are habitual offenders, which makes the conduct of these appellants more doubtful.
20. Purpose of punishment is to change character of offender by keeping him away from criminal activities and to prevent an offender from its repetition. But in the present case a rebellious act is appearing on the part of appellants. Such conduct of criminals reflects the moral and ethical volume developing in the society. There is a need to examine the aspects which is developing crime particularly wherein criminals are able to generate money.
21. ' Normally much crime developed because when people are unable to have an access to satisfy their basic fundamental right of food, clothing, proper shelter and education. As observed by Glanville Williams, Criminal Law 575 (2nd ed. 1961) that:-- "Punishment in all its forms is a loss of rights or advantages consequent on a breach of law. When it loses this quality it I degenerates into an arbitrary act of violence that can produce nothing but bad social effects."
22. ' Thus there is a need to reformatory school where such ill elements be sent not with the intent of punishment but to make them a respectable and acceptable members of society, but in the circumstances of case I have no option but to dismiss appeal as satisfactory and sound evidence was available against appellants of committing robbery.