Muhammad Munir Faruqee, J.--Allah Ditta appellant was tried along with Saadullah, Daulat alias Daullo and, Malla on charge under sections 382, 302/34 and 394/397 of the Pakistan Penal Code by Malik Gulbaz Khan, the Sessions Judge, Lyallpur, who convicted the appellant under section 394, P.
P. ,C. only and sentenced him to transportation for life with a fine or Rs. 2,000.00 or in default further rigorous imprisonment for two years and acquitted the other three accused by his order dated 21- 6-1969, which forms the subject-matter of this appeal.
2. This incident of robbery with murder took place on the night between 28/29th April 1969, in Killa No. 10, of Square No. 6 of Chak No. 274 GH in the area of Police Station Satana.
3. The prosecution case in brief is that Saee complainant and his brother Sarang deceased had tethered their cattle in the aforesaid killa on the eventful night. Saee complainant was sleeping on one side of the behk and Sarang deceased on other. At about midnight Saee complainant woke up and saw four persons standing near their cattle and one of them had untied a bullock from the manger. On this he got up from his cot and raising alarm proceeded in that direction to catch hold the miscreant. ln response to his alarm Sarang deceased shouted from the other side that he was also coming, but as he got up he received a shot iired by one of them and fell back into his bed, Saee complainant tad in the meanwhile' caught bold of the culprit who had untied the bullock, while his companions made good their escape. Balia (P. W. l2) and Muhammad (P. W. 13) were also attracted by this alarm from their Khalwara and assisted Saee complainant in securing the thief by tying his hands at his back with a safa. A short while later Saee Lambardar and Pira Chaukidar also turned up on hearing about this occurrence along with some other residents of the Chak. On enquiry this thief disclosed his name as Allah Ditta son of Ali Muhammad, caste Khichi, resident of Chak No. 275 GH. He also gave the particulars of his three companions. They then attended to Sarang and found him dead. Leaving the others at the spot to guard the dead body Saee complainant accompanied by Saee Muhammad Lambardar (P. W. 15) went to Police Post Rodala and reaching there at 6-15 a.m. on the next morning reported the matter to Alam Sher Khan.
Assistant Sub-Inspector (P. W. 17) who recorded his statement Exh. P. A. and after forwarding the same to Police Station Satiana for the formal registration of the case he proceeded to the spot along with them.
The Assistant Sub-Inspector reached the spot at 7-30 a.m. and taking the dead body of Sarang in his custody despatched it to the mortuary after the necessary inquest vide Exh. P. R. and injury statement Exh. P. S. under the escort of Foot Constable Hakim Din (P. W. 5). He also took into his possession cot (P. 3), quilt (P. W. 4), kites (P. 5) and chadar (P. 6) vide Exh. P. F. He then collected blood-staind earth and made it into a parcel vide Exh. P. G. He also found one empty cartridge (P.
11) lying there which was taken into possession and sealed into a parcel vide Exh. P. H. The bullock was also taken into possession vide Exh P. J. He found some foot-prints at the place of occurrence and got prepared seven moulds of four different persons vide Exh. P. K. He got removed pair of shoes (P. 7/1-2) from the feet of Allah Ditta appellant and sealed them into a parcel vide Exh P. L. He got prepared the site plan Exh. P. N. with its duplicate Exh. P. N./l from Muhammad Slam Patwari (P.
W. 7) and putting his notes in red ink over it signed the same. Ch. Muhammad Siddiq (P. W. 18) Sub- Inspector, came to the spol at 11 a.m. on the same day and relieved him of the investigation The A. S I. then deposited all the parcel with Abdul Ghafoor Moharrir Head Constable (P. W. I6) on the next day for saf< custody in the Malkhana. On 30th April 1968, Hakim Din, Foo Constable brought back from the mortuary chadar (P. 1), rinj (P. 2) and a sealed phial containing pellets and produced then before the Sub-Inspector Muhammad Siddiq who took them inti his possession vide Exh. P. B. Since the other three accused hai absconded Ch Muhammad Siddiq, Sub-Inspector obtained th warrants of their arrest vide his applications Exhs. P. 2/l. O 7th May 1968, he arrested Saaduilah and Daulat (acquitte accused) from the Dhari of Shahu from Sammon De Jhok in th area of Chak No. 152, Police Station Jaranwala. He got remove one of the shoes of Saaduilah accused and took it into his posse sion vide Exh. P. D. and made it into a parcel. He got remove a pair of shoes (P. 8/1-'.) from the feet of Daulat and sealed the into a parcel vide Exh. P. C. In the course of interrogate Saaduilah accused led to the recovery of 'l2 pistol (P. 10) from tl roof of the Dhari, which was sealed into a parcel vide Exh. P. E. These sealed parcels were deposited with' the Moharrir on the same day for safe custody in the Malkhana. The pistol (P. 10) and the empty (P. 11) recovered from the spot were sent to the Forensic Science Laboratory for examination which revealed that T2 empty (P. 11) had been fired from this .12 pistol vide report Exh. P. V. of the Firearms Expert. The earth was found to be stained with human blood vide report of the Chemical Examiner Exh. P. U. and that of the Serologist Exh. P. T.
4. On 29th April 1968, at 5-30 p.m., Dr. Abdul Ghafoor (P. W. 1) performed the autopsy on the dead body of Sarang deceased and found the following injuries vide Exh. P. Q. :-- "l2 firearm pellets wound on the front of neck above the clavicle in an area of 3"x 3" each " muscle deep."
On dissection it was found that the left and right common cortid arteries, jugular veins, and trachea were ruptured. Apex of the right lung was injured and chest cavity was full of blood. Two pellets were found on the right side of front of neck at its base. Stomach was healthy and contained small amount of digested diet. Rest of the organs were healthy. In his opinion the death was due to shock and haemorrhage as a result of this injury which was sufficient to cause death in the ordinary course of nature. The injury was grievous and dangerous and was caused by firearm. Probable time that elapsed between injury and death was only a few minutes and between death and post- mortem was within about 24 hours.
5. The evidence of this doctor recorded by the committing Magistrate on 22nd February 1969, was transferred to the Sessions file under section 509, Gr. P. C. to prove that the death of Sarang had resulted from violence which has not been disputed before us.
6. The ocular account of the occurrence was supplied by Saee complainant (P. W. 11), Bala (P. W. l2) and Muhammad (P. W. 13), who had supported the above narration. Sanatta (P. W. 14) who examined to connect Allah Ditta appellant with the three acquitted accused Saadullab, Dau'at and Malla. He deposed that he knew them before as they had been visiting Allah Ditta appellant at his dera and had also seen them there in the preceding evening when he went to fetch fire from his dhari. Allah Ditta appellant was entertaining them with meals at that time and a little while after all four of dhem bad passed by the behk proceeding in the direction of the dhari of Sarang deceased situate at a distance of six squares from his behk. Saee Muhammad Lambardar (P. W. 15) had corroborated the two Investigating Officers about the recoveries.
7. Allah Ditta appellant and the three acquitted accused denied all the allegations averring that they had been falsely implicated in this case and led no evidence in defence.
8. The learned trial Judge disbelieving the evidence adduced to connect Saadullah, Daulat and Malla with the crime acquitted them of the charge levelled against them. He also acquitted Allah Ditta appellant of the charge under section 302/34, P. P. C. as he found that the common intention of Allah Ditta and his co- accused was only to commit theft and the murder of Sarang was the individual act of one of them, so he could not be held guilty of murder. He at the same time concluded that there was sufficient evidence to prove that Allah Ditta appellant was accompanied by some other persons, one of whom had fired a shot at Sarang deceased and on the basis of this last mentioned conclusion he has recorded his conviction under section 394, P. P. C. which has been assailed before us as misconceived and inconsistent with his above finding.
9. It was contended by the learned counsel for the appellant that having rejected the prosecution evidence in respect of the participation of Saadullah, Daulat and Malla in this offence as untruthful and unreliable and that of the recovery of pistol (P. 10) from one of them as doubtful, the trial Judge could not have held that Allah Ditta appellant was accompanied by some other persons or had any concern with anyone of them, who had fired the fatal shot at Sarang deceased. It was further argued that after having given the finding that the common intention of Allah Ditta appellant and his companions was only the theft of cattle and the firing of the fatal shot on Sarang deceased by one of them was his individual act the trial Judge could not have convicted the appellant under section 394, P. P. C.
10. On being taken through the record we are inclined to agree with the learned counsel that there was no credible evidence to show that Allah Ditta appellant had any concern with the person who had fired the fatal shot at Sarang deceased in the course of the occurrence. Saee complainant had ultimately conceded during his cross-examination at the trial that on being woken up by the hustle-bustle among the cattle he saw Allah Ditta appellant going away with a bullock at a distance of one killa from the behk. It was then that he had raised the alarm in response to which Sarang deceased had shouted that he was coming and had attracted Bala and Muhammad P. Ws. to the spot from their neighbouring khihvara who heard the report of the fatal shot on their way to the behk of Saee complainant and on reaching there they found him grappling with Allah Ditta appellant and assisted Saee P. W. in overpowering him, while his companions made good their escape. In this sequence of events Bala and Muhammad P. Ws. could not have reached the spot in time to see the companions, if any, of Allah Ditta appellant The statement of Muhammad (P. W. 13) at the trial would suppor this conclusion wherein he had deposed that he did not notic< any companion of Allah Ditta appellant. Bala P. W., however claimed to have seen them running away from the spot as the; arrived there. According to the statement of Muhammad P. W he and Bala had started from their close-by khihvara together am if he could not see any other person with Allah Ditta how couli Bala P. W. had seen any one of them. They had, however, belie* each other on this point.
11. We are then left with the statement of Sace (P. W. 10) which is extremely discrepant about it. He had not at all asserted that Bala and Muhammad P. Ws. had arrived in time to find the companions of Allah Ditta appellant at the spot. He had stated in his report Exh. P. A. that on being woken up he saw four persons standing near his cattle one of whom had just unchained the bullock from the manger. In his statement at the trial he materially changed his stand about it. He had deposed that he saw three persons at the behk and did not see the fourth person and one of them (Allah Ditta appellant) was taking away his bullock at a distance of one kanal from the behk. He had thereby considerably improved upon his earlier statement with which he was duly confronted. He had further stated that he knew Allah Ditta appellant before the occurrence as he was a resident of the neighbouring Chak No. 275G and had been seeing him attending the school of his Chak. He had nowhere mentioned in his statement Exh. P. A. that on his apprehension Allah Ditta appellant had disclosed his name as Allah Ditta son of Ali, caste Khichi resident of Chak No. 275 Maduawana. He had made the same statement before the committing Magistrate but when he was confronted with it he disowned both these statements. He had also stated in the report Exh. P. A. that Allah Ditta appellant had disclosed the father's name of Saadullah as Hamid resident of Kot Kamir, Police Station Jaranwala, but at the trial he disowned this statement as well. He had also stated before the police in Exh. P. A. that Allah Ditta appellant had disclosed the name, caste and address of Malla accused, but he went back on this statement as well. According to his report Exh. P. A., that Allah Ditta appellant had disclosed the name, caste and address of Malla accused, but he went back on this statement as well. According to his report Exh. P. A. Saee Lambardar and Pira Chowkidar had arrived at the spot after Allah Ditta had disclosed the names of his companions, but in his statement at the trial Saee P. W. urged that Allah Ditta appellant had disclosed the name of his companions in the presence of the Lambardar and the Chowkidar, but resiled from his earlier statement about it. It would be unsafe to rely on Saee complainant in the face of these material discrepancies and contradictions in his statement about this important factor. The evidence of Saee, Bala and Muhammad P. Ws. has already been rejected by the trial Judge in respect of Saadullah, Daulat and Malla accused apparently on account of these infirmities. The testimony of Sanatta (P. W. 14) was also considered as unreliable in respect of their association with Allah Ditta appellant who was likewise acquitted of the main charge under section 302/34, P. P. C. along with them. By falsely implicating these three persons in this case and introducing another false witness like Sanatta P. W. to connect Allah Ditta appellant with them, these three witnesses had impaired their credibility so much that their evidence required some independent corroboration about the fact that Allah Ditta appellant had any concern with the person who had fired the fatal shot on Sarang deceased, which is not available from any source in this case, so none of them 4 deserved any credence about this important aspect of the prosecution case. His identity having remained unestablished the conclusion of the trial Judge that the person who fired the fatal shot on Sarang deceased was accompanying Allah Ditta appellant would be incorrect. This would eliminate the important ingredient of the offence under section 394, P. P. C. which required that such other person should be jointly concerned with the person who voluntarily caused hurt etc. in committing the offence of robbery. His conviction under section 394, P. P. C. was thus not sustainable in law. l2. The three prosecution witnesses, Saee, Bala and Muhammad are, however, consistant about the apprehension of Allah Ditta appellant along with the bullock at a distance of one kanal from the behk, which was duly corroborated by Saee Lambardar and A. S. I. Alam Sher P. Ws., so he could not escape the liability for the theft, we have, therefore, to accept this appeal to the extent only and modifying his conviction to that under section 379, P. P. C. reduce his sentence to rigorous imprisonment for three years only. .