Khadim alias Khuni, Nek Muhammad alias Neka and one Mand were tried by Mian Muhammad Saeed Wattoo, Section 30 Magistrate, Lyallpur under section 392/397, Pakistan Penal Code for having committed dacoity and depriving Karam Din P. W. of Rs, 400 and his brother Bashir Ahmad of Rs, 300 when they were armed with deadly weapons. Khadim alias Khuni had a pistol and Nek Muhammad alias Neka a gun. During the course of the commission of the robbery, they injured Karam Din P. W. at about sunset time, on 12-1-1967 within the area of Chak No, 138 G. B. Their companion Mand was acquitted and Sardara is still an absconder. Khadim alias Khuni and Nek Muhammad alias Neka, were convicted and sentenced to seven years' rigorous imprisonment each. The convicts have preferred separate appeals, Khadim alias Khuni has preferred appeal through counsel, viz. (Criminal Appeal No, 865 of 1967). Nek Muhammad alias Neka has sent appeal through Jail (Criminal Appeal No, 22 of 1968). This judgment shall dispose of both these appeals.
2. Karam Din P. W. 1 and his brother Bashir Ahmad, P. W. 3, though residents of Chak No, 138 G. B. used to carry on their business of selling meat in Chak No, 500. B. where Karam Din used to go daily.
The day of occurrence happened to be the day of Eid-ul-Fitr. Thus the two brothers alongwith Allah Rakha P.W. 2 son of Karam Din, went to Chak No, 500.B to sell the meat of ten goats and three cows.
The sale money, received by them, amounted to Rs, 700. Karam Din kept Rs, 400 with himself, as that amount fell to his share. He gave the rest to his brother Bashir Ahmad. After concluding the business for the day, all the three left for their village, carrying the hides on their heads. They were near their village, when they noticed four persons heading towards them. While passing near them, they offered them usual courtesy. However, the latter began to abuse them. Out of the four persons, the appellants were personally known to them. Nek Muhammad, who was carrying gun, placed its muzzle on the chest of Karam Din and told Mm to handover whatever he had, Khadim alias Khuni also aimed his pistol towards him. In an attempt to save himself, Karam Din threw the skins, which he was carrying, on the face of Neka and caught hold of the muzzle of his gun with both hands. However, Nek Muhammad fired the gun, which hit Karam Din at the right side of the buttock. He fell down. The bone of his right thigh was fractured at two places. Khuni accused turned his attention towards Allah Rakha and Bashir Ahmad and told them, that if they, either moved or raised alarm, they would be done to death. Thus frightened, both the brothers handed over the money, they had, to the culprits, who thereafter fled away. Bashir Ahmad went to the village and brought a few persons with him, they, thereafter, carried Karam Din, the injured person, on a cot to Civil Hospital, Samundari, which is five miles from the spot.
3. Dr. Abdul Hameed Zaigham P. W. 11 examined Karam Din P. W. on 12-1-1967 at 9-00 p.m. and found the following injuries on his person :- (1)A circular gunshot wound 1i" x 1" x 34" on the outer `aspect of right thigh at the upper end. It was bleeding. Right femor was fracture under the injury. The fracture was compound one.
(2)94 small gunshot circular wounds around injury No, 1 measuring 1/8" x 1/8" x 3" each.
(3)An abrasion mark 11" x just below injury No, 1 obliquely.
He took out two wads and nine pellets out of the wound. Probable duration of the injuries, according to the Doctor, was three to four hours. These had been caused by firearm. The injured person remained as indoor patient in the hospital for about three months. He thereafter remained under the treatment of Dr. Mannan and Dr. Saleem. He could not walk properly, when he appeared as a witness in the lower ,Court on 8-8-67.
4. The medical officer informed the local police of the arrival of Karam Din, in injured condition, by rap Exh. P. G., whereupon A. S. 1, Abdur Razaq P. W. 10, of Samundari Police Station reached the hospital at 12-15 p.m. on 13-1-1967 i,e, within about three hours of the arrival of Karam Din in the hospital. He recorded statement Exh. P. A. of Karam Din P. W. on the basis of which, formal first information report was recorded at the police station. He subsequently investigated the case.
5. S. I. Syed Shaukat Hussain P. W. 8 arrested the appellants, when he found them at about mid- night near Jhal Salooni, on 31-1-67, in the company of their co-accused Mand.
6. When examined, after the completion of the prosecution case, the appellant stated that one Khurshid, who was related to Khuni and was a friend of Nek Muhammad alias Neka, was done to death by one Muhammad Sharif alongwith some other persons. They were challaned. Karam Din P.
W. vas a friend of Muhammad Sharif. The appellants were pursuing the case against them and thus, though robbed by some unknown persons, Karam Din had, in conspiracy with Muhammad Sharif, involved them in this case. Khadim also added, that he was not known as Khuni. There was one Ali Muhammad alias Khuni of his village, whose father's name was like his father's. That person had left the village after this occurrence. Under a wrong impression, that he was also known as Khuni, he has been involved in this case.
The appellants produced two witnesses in the defence. They are Faiz Ahmad and Nazar Hussain.
Both of them have deposed, that Khadim is not known as Khuni. They have also said, that the appellants have been involved at the instance of Muhammad Sharif, the murderer of Khurshid.
7. It is significant, that it was not put to any prosecution witness, although even the Lambardar of the village appeared for the prosecution, that Khadim accused was not known as Khuni. Nobody was asked, whether there was any other person by the name of Khuni, who lived in the village, where the occurrence took place and left after the registration of the case. This contention thus has no force.
8. The story of the prosecution, with regard to the occurrence has been fully corroborated by Karam Din, his son Allah Rakha and brother Bashir Ahmad. They have no enmity with the appellants. The only objection against them is, that there is no independent corroboration of their testimony. There could not have been any, as it was evening time. However, there is a hall-mark, which establishes the truth of the prosecution version and that is the presence of fire-arm injuries on the person of Karam Din. The injuries show, that at least, he was there. He claims, that he knew both the appellants. No other corroboration of the testimony of the eye-witnesses, was thus needed.
9. The next contention raised by the learned counsel is that the story of the prosecution is false inasmuch as admittedly Karam Din was not in possession of a licence for the sale of beef. He did not refer to any authority to show that a licence was infact needed. However, it is common knowledge as observed of the learned Magistrate also that in villages people do not care to obtain licences for the sale of beef. Thus the mere absence of the licence, does not, in any way, weaken the prosecution case.
10.Yet another objection raised is, that if ten goats and three cows were sold, the sale money would have been much more than Rs, 700. It is significant, that the witnesses were not questioned, why they had only Rs, 700 with them. It is possible, that some of the meat might have been sold by them on credit. However, there being no evidence in this respect, no definite decision can be given about it.
11. A further objection taken by the learned counsel is, that according to the statement of Allah Rakha, the hides which were at the spot, were removed from there, in a tonga to their house, while Bashir Ahmad stated, that the hides were carried to their house on their heads after the occurrence. This disparity in the statements of the witnesses in the first place, has no meaning. It is too trivial. Anyhow, it can be easily explained. So far as Bashir Ahmad is concerned, he was -busy in getting his brother removed to the hospital and in fact, went with him. Therefore, his statement has no value, as against the statement of Allah Rakha, who was in the village. He was the proper person to tell us, how the hides were removed from the spot. There is thus no disparity of any importance in their statements.
12. The next objection raised is, that it was dark at the time of the occurrence and, therefore, the culprits could not have been identified. This aspect of the case also has no force, because the appellants were known to the three prosecution witnesses both by name and by face and they came so close to them that they could not have been mistaken with regard to their identity. When they passed on money to these persons, they must have seen them from close quarters. The honesty of the prosecution witness lies in the fact, that when they could not identify the co- accused of the appellants, they did not try to implicate any person falsely in their place.
13. Stress was laid on the fact that there was delay in the lodging of the first information report.
There does not appear to me to be any delay, which requires explanation. When Karam Din was removed to the hospital, the first reaction of the doctor, who examined him, would be to look after his health and set right the compound fracture of the thigh. It must have taken good deal of time to set the same, even if first aid only had to be rendered at that time. It is interesting, that the doctor was not questioned, as to when he informed the police of the arrival of the injured person.
14. The last contention is, that the learned trial Magistrate was wrong in applying section 397 of the Pakistan Penal Code in awarding enhanced punishment to Khadim alias Khuni appellant, for the reason that, although alleged to have been armed with a pistol, he did not use it.
15.The argument is fallacious, when seen in the light of the provisions of section 398, P. P. C. which makes the offender liable to punishment of not less than seven years, in case he is armed with a deadly weapon at the time of attempting to commit robbery or dacoity.
16. After giving serious consideration to the contention. raised, I am not inclined to place that restricted meaning to the term "uses" used in section 397, P. P. C. as the counsel would want me to, when the mere possession of such a weapon, at the time of attempting to commit robbery or dacoity, makes him liable at least to the same extent, in the matter of award of sentence.
In Sheroe v. The Crown the facts were that a dacoity was committed in the house of one Dewan Chand, by culprits, who were armed with guns, Kirpans and Tak was. However, the inmates of the house did not receive any serious injury although they were terrorized into submission and their house was ransacked. Some injuries of a simple nature, were received by some of the prosecution witnesses. The accused were convicted under section 395/397, P. P. C. and were sentenced to seven years' rigorous imprisonment each. In appeal, a contention was raised on their behalf, that the learned Magistrate was wrong in applying section 397, P. P. C. for awarding enhanced punishment to the appellants, inasmuch as this section prescribed a minimum sentence of seven years' rigorous imprisonment in the case of those offenders, who 'used' any deadly weapon or caused grievous hurt and attempted to cause death or grievous hurt to any person at the time of committing robbery or decoity. Mr. Justice S. A. Rahman, then a Judge of the Lahore High Court observed : -- "The meaning of the word 'use' in the context must receive a comprehensive interpretation and would include the carrying of any deadly weapon in the course of a dacoity with a view to overawe persons intending to resist the commission of the dacoity. This interpretation would be quite consistent with the intention of the Legislature as revealed by the language of section 398, P. P. C.
That section provides for a minimum punishment of seven years in the case of offenders who are merely attempting to commit robbery or dacoity if they are armed with any deadly weapon. It would be anomalous to hold that a 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 the case of Ahmad v. The State in which the main judgment was delivered by my Lord Mr. Justice S. A. Rehman, former Cheif Justice of the Supreme Court, who had incidentally delivered the judgment in the case already quoted, expressed the same views. After reproducing the provisions of section 398, P. P. C. his Lordship observed that it would, therefore, seem that even in the case of an attempted robbery or dacoity, the mere carrying of a deadly weapon by an offender would entail the consequence that in case of a conviction, he would receive a minimum sentence of seven years' rigorous imprisonment. This section provides the key to the correct interpretation of section 397, P. P. C. Their Lordships of the Supreme Court agreed with the view expressed in the case of Sheroo v. Crown, in that, the word "uses" occurring in section 397, P. P. C. should be construed broadly as including the carrying of a deadly weapon during a dacoity or robbery.
17. In the aforesaid view of the matter, although there is no allegation, that Khadim alias Khuni, who was undoubtedly armed with a pistol, used it in inflicting an injury, I feel that no interference in the sentence awarded to him, is called for. The case against both the appellants is proved to the hilt.
There is no force in their appeals and the same are dismissed. PLD 1950 Lah. 269 PLD 1963 SC 737