Dadu son of Shukra, aged 30 years and Mamoori son of Allu, aged 32 years were tried by the Sub- Divisional Magistrate, Cbiniot with Section 30 powers. Amir son of Allu with the above- named two persons, did not appear in the trial Court as he was confined in the District Jail, Lyallpur in another case and had not been transferred to Chiniot Jail. Yet another persoD, who is also said to have joined in the commission of the crime was never apprehended and was, therefore, not tried. The learned trial Judge found Dadu and Mamoori appellants guilty of offences under sections 394 and 397, P. P. C. and convicted them accordingly vide his judgment dated 22-9-1969. He sentenced them to seven years' R. I. each for the above-noted offences and also sentenced them to a fine of Rs. 500 each. In default of payment of fine they were ordered to undergo further rigorous imprisonment of six months each. It was also ordered that in case the fine was recovered, Rs. 500 shall be paid to Fazal Din P. W. 5, who was a victim of the robbery.
2. Dadu appellant has filed an appeal (Criminal Appeal No. 920 of 1969) against his conviction and sentence through Ch. Muhammad Aslam Chattha. Mamoori appellant has, however, filed a separate appeal Cr. Appeal No. 83 of 1970 through jail. 1 propose to dispose of both the appeals by a single order.
3. The facts of the prosecution case briefly stated are that Fazal Din P. W. 5, a resident of Chiniot, the complainant in the case, had gone to a place called Rao Bagh Mai, in District Jhang. When he was returning to his house via the pucca road running between Chiniot and Pindi Bhattian at about 6/7 p.m. and was at distance of about one mile from Rao Bagh Mai, four persons who were armed with guns stopped him. One of them caught old of his bicycle and tried to snatch it. The complainant, owever, resisted. The other three robbers also advanced towards im whereupon the complainant placed his hand on his dab in rder to show that he was armed with a pistol. Three out of the our robbers, thereupon, fired at him. One shot hit his left hand, he other hit his left foot and the third hit his abdomen, as a esult of which the complainant fell down. The robbers decamped ith his bicycle.
After a short time a truck came from Pindi hattian side and the truck driver lifted him and brought him to hiniot, where he left him near the hotel of Allah Ditta nanbal. he above-mentioned Allah Ditta took him to the hospital, nlormation was sent to the police station whereupon Noor uhammad Head Constable P. W. 11 came there and recorded he statement Exh. P. E. of Fazal Din P. W., which was then ent to the police station for registration of the formal F. I. R, icycle P. 1 was recovered from the house of Dadu appellant, he recovery was witnessed by Salehon P. W. 9 and Fateh uhammad P.
W. 10.
It is also alleged by the prosecution that shortly before the ccurrence the same persons had tried to rob Shera P. W. 1 and ad forcibly searched him for any money etc. that he may have ossessed, but since nothing was found from him, they released im. He went to his village Rai Chand and informed Chiragh hah Lambardar P. W.
2. The latter accompanied him and when hey reached near the garden of Nazir Hussain Maggo, they saw he accused persons near the tube-well of Haji Shafi, who were rmed with guns. By that time they had also bicycle with them, hich shows that they had robbed Fazal Din P. W. 5 in the eantime. Bahadri P. W. 3. is also said to have seen the accused ersons armed with guns with a bicycle, shortly after the ccurrence.
4. The medical examination of Fazal Din P. W. 5 the mplainant reveals that he had received a total of ten injuries, ut of which at least eight had been caused by a shotgun pellets.
5. During the investigation three of the accused, namely, du, Mamoori and Amir were arrested while the fourth was never traced. Two identification parades were held by Mr, Mukhtar Ahmad Piracha, Magistrate II Class, Jhang, P. W. 7 on 3-7-1967 and 15-7-1967. Fazal Din P. W. 5, the complainant identified Mamoori appellant in the identification parade held on 3-7-1967. He also identified Dadu appellant in the identification parade held on 15-7-1967. After the completion of the investigation they were sent up for trial before the S. D. M., Chiniot. The result of the trial has already been given above.
6. I have heard the learned counsel for the appellants ai well as the learned State counsel. I have also gone through th< entire record with their help.
It will be noticed that in this case except Fazal Din P. W. 5j the complainant there is no other eye- witness of the occurrence! Shera, Chiragh Shah and Bahadri P. Ws. are only said to havf seen the appellants and their companions after the occurrence! Shera P. W. 1 is also said to have seen them a little before thf occurrence, but did not witness the occurrence itself. Out o| these three witnesses, only Shera P. W. has stated that he knev the appellants previously and the others have not stated so. As matter of fact Bahadri P. W. 3 has specifically stated that he did not know the appellants prior to the incident. Yet no identifical tion parade was held to see whether these witnesses could identify the appellants correctly. According to the statements ol Shera, Chiragh Shah and Bahadri P. Ws., the occurrencf appears to have taken place after night fall, for at least two ol them have stated that "the night was dark". It is, therefore! doubtful whether the said three eye-witnesses could havl identified the appellants or their companions. Moreover, evei Shera P. W. 1, who not only claims that he knew the appeliant| prior to the occurrence but also claims that they were resident of village Rajua, has stated during the cross-examination ancf that they had tried to track the accused persons: If, as claimed by him, he knew the culprits previously and alsd knew as to which village they belonged to, there was no earthH reason why an attempt was made to follow the tracks of thl robbers. 1 do not believe that he identified the culprits. As t7. I am, therefore, left with the solitary evidence of Faza| Din P. W.
5. No doubt he sustained firearm injuries during th{ occurrence and must have seen the robbers. It is, however noteworthy that he did not mention their names in the F.
I. (i.e., in statement Exh. P. E.). It is evident, therefore, that the time of lodging the report he did not know the identity of thl robbers. Subsequently about three months after the occurrencl he was required to identify them in two different identification parades. Strangely enough, he identified both of them correctlf I have, however reasons to doubt the identification. In the fir] place, it was probably dark at the time when the incident took place because the complainant has admitted in his cross-examination that the lights on the tube-well had been switched-on.
Secondly, Fazal Din P. W. must have felt it difficult to notice and recollect the features of the assailants, specially when one's mind is confused and shocked as it is bound to be in such circumstances. Thirdly, no description whatsoever of the accused persons was given by him in the F. I. R. and any one could be named later on with impunity. Lastly, at the trial during his cross- examination, the complainant stated in so many words that he was unable to identify them.
The learned counsel for the State argued that in the context >f the entire statement this admission is meaningless. Even if hat be so it does cast serious doubt as to whether the, ;omplainant was in a position to correctly identify the two ippellants. In this state of the evidence I consider it highly insafe to maintain the conviction of the appellants under lections 394 and 397, P. P. C.
However, it is in evidence that the bicycle belonging to Fazal Din complainant was recovered from Dadu appellant. The earned counsel for the appellants has not offered any criticism on he statements of the two recovery witnesses, namely, Salehoon ?. W. 9, and Fateh Muhammed P. W. 10.
It could be argued that the recovery of the complainant's dcycle from Dadu appellant corroborates the allegation against dm that he had participated in the robbery, but that would be'a nere surmise and there can be no certainty about it, because he nay even have received it from the actual robber. In the absence )f his identification, as one of the robbers present at the time of accurrence, he cannot be fixed with the responsibility of having aken it away forcibly from the complainant. As a matter of 'act the learned counsel for Dadu appellant has himself admitted hat an offence under section 411, P. P. C. is made out against dm.
8. The result is that I alter the conviction of Dadu appellant :o one under section 411, P. P. C. and acquit Mamoori appellant af the offence for which he was convicted. As to the sentence, Dadu appellant has already undergone about two years and five nonths' R. I. I am of the view that in these circumstances the sentence already undergone by him is sufficient to meet the ends of ustice. The fine imposed upon him is remitted. If he is not vanted in any other case, he should be set at liberty. Mamoori ippellant who has been acquitted by me should be set at liberty mless he is wanted in some other case. .