These to connected appeals namely, Criminal Appeals Nos. J-367/68 and J-36SJ68 have been filed by appellants Roshan Shah son of Soomer Shah and Biro son of Sojhro who have been both convicted by the same judgment dated 13-7-1968 of the learned Additional Sessions Judge, Dadu for an offence under sections 394/397, P. P. C: and 13(d) of the Arms Ordinance and sentenced to suffer R. I. For seven years and one year respectively; both the sentences to run concurrently.
2. The prosecution case in brief was, that on 11-12-1963, at about 7-45 p. m. The appellants alongwith one Pario son of Dilshad Chandio, who has not preferred any appeal, committed highway robbery in the course of which several persons were robbed and injured. One of the: injured persons was the Mukhtiarkar, Khairpur Nathan Shah, namely, Mohammad Chanesser P. W.
4, who has been permanently disabled on account of the said injury. The. First Information Report relating to the occurrence was lodged by Ali Ahmed, P. W: 1 the same evening at 10-30 p.m. At Police Station, Khairpur Nathan Shah about: 3 miles away from the scene of occurrence.
3. Fazal Hussain, S. H. O., Khairpur Nathan Shah in the meantime on hearing a rumour about the robbery reached the wardat at about 8 p.m. And learnt that-the robbers had already gone away in a jeep. He; thereafter went after theta, but got no clue of them. In; the course of investigation, the S. H. O. Learnt that one of the robbers was Roshan Shah and to others were Chandios by caste. On 19- 2-1964, the S. H: O. Received in--formation that the to Chandios, were arrested by Kambar Police in some other crime and on 20-2-1964 he took both of them namely, appellant Biro and his co- accused Pario in his custody. Appellant Roshan Shah was, however, arrested on 24-2-1964 from the town of Mehar. He immediately volunteered to produce his gun which was recovered at his instance from a heep of dung lying within the fence of his house. He also produced to wrist watches which were lying in a plastic soap case. Mashirnamas Exhs. 20/2 and 20/3 fur all these items were prepared respectively. On 26-2-1964, appellant Roshan Shah made a judicial confession but this has not been relied upon by the learned trial Judge. On the same date an identification test of appellant Roshan Shah was held through P. Ws. Ali Ahmed, Irshad Ali, Nabi Bux, Muhammad Juman, Muhammad Bux, Hafiz Sher Muhammad, Shadi Khan and Wahid Bux under the supervision of III Class Magistrate, Mr. Lutif Ali, P. W.
7. The appellant was correctly picked out by all these witnesses. His foot-prints test was held on the same day through Pagi Mahmood under the supervision of H. M. And III Class Magistrate, Khairpur Nathan Shah, who correctly picked out the foot-prints of the appellant. But this to has not been relied upon. On the same date an identifica-- tion test was held in which P. W. Sher Muhammad picked out one of the watches produced by the appellant Roshan Shah as the one belonging to him.
4. On 27-2-1964, identification tests of all the three accused including the to appellants were held through P. Ws. Dur Muhammad, Haji Ghulam Hyder and others who all correctly picked out the appellants.
5. On 29-2-1964, P. W. 4 Muhammad Chanesar, who was injured and was lying in Jam Shoro Hospital on account of his injuries, was put to an identification test which was held in presence of Chunilal, Mukhtiarkar and F: C. M., Kotri. In the said test P. W. Muhammad Chanesar correctly picked out both the appellants. The crime empties recovered from the wardat were sent to the Ballistics Expert P. W. 5 Tajamul Hussain, whose evidence shows that to of the crime empties recovered from the wardat appeared to have been fired from the gun produced by appellant Roshan Shah. After the usual investigations were concluded both the appellants were challaned and convicted as stated above.
5. The defence of the appellants was one of denial. Appellant Roshan Shah stated that the gun as well as the watches were foisted on him by the Police and that the witnesses were deposing against him at the instance of the Police. He denied that any witness had correctly picked him out in the test, although he admitted that the identification tests were held as alleged by the prosecution. The statement of appellant Biro is more or less the same as of appellant Roshan Shah.
In addition he stated that he was related to one Shah Passand with whom all the witnesses had political enmity and it was on this account that he was involved in this case. No witness was, however, examined by either of them in defence.
7. There can be no doubt whatsoever that a dare devil robbery was committed on the High Way between Khairpur Nathan Shah and Sita Road Railway Station as alleged by the prosecution, and that in the course of the said robbery P. W. Muhammad Chanesar sustained serious injuries as a result of which he has been permanently disabled. This part of the prosecution case does not appear to have been disputed by the appellants.
8. The only question that requires consideration therefore, is whether the appellants could be held responsible for the said robbery. The prosecution evidence against them consists of the testimony of P. W. 1 Ali Ahmad, P. W. 2 Dur Muhammad, P. W. 3 Irshad Ali, P. W. 4 Muhammad Chanesser, Hafiz Sher Muhammad, Buxial, Muhammad Juman and Haji Ghulam Hyder. P. W. 1 Ali Ahmed was a Zamindar who was robbed of a cash of Rs. 2,000 and one blue shawl. P. W. Dur Muhammad, who was a Tapedar, who was travelling in the same jeep with the Mukhtiarkar Muhammad Chanesar.
He was robbed of Rs. 60 cash and a wrist watch. P. W. Irshad Ali was driver of the taxi jeep in which the Mukhtiarkar and .The Tapedar were travelling. P. W. 4 Muhammad Chaneser, is an injured person and his presence at the scene cannot be even disputed. His evidence also establishes the presence of other witnesses at the scene of occurrence. P. W. 5 Hafiz Sher Muhammad was a passenger in the other jeep. He was deprived of his cash amounting to Rs. 41 and one Camy watch.
P. W. Buxial was the driver of this jeep. P. W: Muhammad Juman was the driver of the bus which was the main target of attack. The last witness namely, Haji Ghulam Hyder was a passenger in the said bus. All these witnesses have given a consistent account of the incident. In a series of identification tests held on 21-2-1964, 26-2-1964, 27-2-1964 and 29-2-1964 they correctly picked out both the appellants. P. Ws. Chunilal Mukhtiarkar and First Class Magistrate and Lutuf Ali. Head Munshi and Third Class Magistrate, who conducted these tests have fully supported the prosecution case and shown that the identification tests were held fairly and properly. Nothing whatsoever has been brought out in the testimony of both these witnesses to throw the slightest suspi--cion on the identification tests. All the eight eye-witnesses are also completely disinterested witnesses and have no reason whatsoever for falsely involving either of the to appellants: They are also respectable witnesses who can be safely relied upon
9. Against appellant Roshan there is also the added circumstance that immediately after his arrest on 24-2-1964, he produced a gun No. 12023 vide memo. Of recovery, Exh. 22/2. According to the evidence of the Ballistics Expert P. VK. Tajamul Hussain to of the crime empties recovered from the wardat, namely Articles C/1 and C/2 were found by him to have been fired from this gun. This appellant also produced to wrist watches, one of which, was identified by P.W. Sher Muhammad as the one which was robbed from him at the the of the occurrence. The evidence of all these witnesses shows that both the appellants were armed with deadly weapons namely, gun and a hatchet respectively.
10: On going through the entire record with the assistance of. Mr. Abdul Hafiz Memon, the learned Assistant Advocate-- General, I find that the guilt of the appellants has been fully established. The learned Additional Sessions Judge has given very good reasons for coming to this conclusion and I find no reasons to disagree with him. In fact I agree with him completely that the appellants were responsible for this crime.
11. The sentence of seven years' R. I. For an offence of this nature is, however, grossly inadequate and called for enhancement by this Court under section 439, Cr. P. C. Mr. Abdul Hafiz Memon, the learned Assistant Advocate-General has, however, pointed out that the offence of which the appellants have been convicted is alleged to have taken place in 1963 and the appellants remained as under-trial prisoners from 1964 to 1968. During this the of 42 years they were all along in custody. Taking this circumstance into consideration I would, not like to issue notice for enhancement in this case. The learned Assistant Advocate-General is also of the same view.
12. In the result then these appeals fail and are dismissed. The convictions and sentences passed on the appellants are maintained.