The appellant was convicted for an offence under section 392 read with section 397, P. P. C: and section 13 (d) of the West Pakistan Arms Act and sentenced to undergo R. I. For 7 years and one year respectively by the learned Sessions Judge, Jacobabad, ordering both the sentences to run concurrently.
2. On 23-2-1966 in the morning Saindino complainant went to his gram; cultivation to cut grass. He had also taken his pair of bullocks to graze which he had tethered with a bush, by the side of his gram cultivation. While he was cutting grass the present two appellants and two others suddenly emerged from the jungle. The present appellants and the absconder Abdul Ghafoor were already known to him. The appellants were armed with guns while the other two had hat--chets. They removed the bullocks whereupon the complainant raised cries which attracted Suleman, Mohram, Wahiddino, Allahdiwayo and others who were working in their respective fields nearby. All of them joined him in pursuing the appellants and the other two culprits. Threats were issued by the appellants and their companions and they also fired gun shots in the air to terrorise the complainant party to prevent them from pursuing them. Abdul Ghafoor absconding accused and the 4th un-known culprit were leading the bullocks while the appellants were facing the complainant party and also retreat--ing. In this process the appellants fell down in the ditches which lay behind them. The complainant party therefore, got 'an opportunity and fell upon the appellants and they were captured, while the other two culprits left the bullocks and ran away.
Thereafter Nooro Machhi and others came from the village and they were informed. Complainant Saindino went to Badant Police Outpost at a distance ofmiles and lodged his report Exh. 5 at 9-00 a.m.
3. Aitbar Khan Head Constable after recording the first report in the station diary gave a copy of it to the complainant to be taken to Bakhashapur Police Station to be incorporated in the register of cognizable offences. He then repaired to the scene of offence and resumed the investigation. The appellants were sitting tied and they were arrested. Guns and cartridges were also secured from their possession. The various mashir namas were prepared and the statement of the witnesses was recorded. After usual investigation the appellants were chal--laned. On the completion of the committal proceedings the appellants were committed to the Court of Sessions and the trial
4. The case of the appellants was that they had been implicated on account of the enmity of Abdul Karim Dombki on account of dispute of land. It was stated that some land was granted to their fathers but subsequently this grant was cancelled and land was granted to Abdul Karim Dombki.
Their father filed appeals and the land was restored to them. So Abdul Karim Dombki nursed a grouse against them.
5. In this case the prosecution examined Saindino, -Allah Diwayo, Suleman, Shahbazali Mashir Aitbar Khan Head Constable, Abdul Ghafoor A. S. I. P. And Mr. Faiz Muhammad S. H. O. On the assessm ent of the evidence of these witnesses the learned Sessions Judge found the appellants guilty of the offence.
6. From the statement of facts it is clear that the evidence examined in this case consists of 3 eye- witnesses, Saindino, Allah Diwayo and Suleman. Saindino is the person whose bullocks were removed from the field while he was cutting grass nearby. He had taken the bullocks to his field and tethered them with a bush. According to his evidence four persons out of them two were the present appellants suddenly appeared and removed the bullocks. The appellants had guns while the other two had hatchets. They pursued the culprits who fired gun shots to prevent the pursuit as well as to escape with the bullocks. The appellants who were facing them and were un-aware of the ditches which lay behind them fell into those ditches and they were captured while the other two ran away. The other two witnesses, namely, Allahwidayo and Suleman have fully corroborated the story told by the complainant. Their lands were situated nearby and they went on the alarm raised by the com--plainant. They also stated that the appellants were armed with guns and had fired gun shots.
7. The learned counsel for the appellants did not succeed in assailing the evidence of the witnesses. I also find nothing in their evidence indicating that they had not given true evidence or had falsely implicated the appellants. No doubt the witnesses are closely related' to each other but the relationship itself is not enough to exclude their evidence from consideration unless it has been established that they were on terms of serious enmity with the appellants and were inclined to falsely implicate them. The appellants failed to establish any enmity. The dispute which was alleged by the appellants was with Abdul Karim Dombki but it was not established that the witnesses had any thing to do with that person. They were never his harris or otherwise connected with him. It is, therefore, inconceivable that the witnesses would help Abdul Karim Dombki to take the revenge.
8. The strong circumstance in corroboration of the evidence of the witnesses is that the appellants were captured at the spot. This is not only borne out by the evidence of the three eye--witnesses themselves but also borne out by the evidence of the mashir and the investigating officer. The mashirnamas which were prepared at the spot also fully support this fact. The appellants were carrying guns which were also secured by the police when the scene of offence was visited after the first report was lodged. The appellants have made no attempt whatsoever to explain how they happened to go to the field of the complainant and why they were carrying guns. This cir-- cumstance is not consistent with their innocence. It was further urged that the appellants being the persons of the same locality could not dare to commit daylight robbery but there is no force in this contention either. Such instances are not wanting.
9. In these circumstances the conviction of the appellants must be maintained. However, the learned counsel for the appellants urged before me that appellant Rahmatullah was a child at the time of the commission of the offence and, there--fore, he could not be 'sentenced to imprisonment. But a report had to be made to the Government in view of the provision of the Bombay Children Act (XIII of 1924) which was applicable to this part of the country. The appellant Rehmatullah was sent to Civil Hospital, Sukkur by this Court for examination by a Radiologist regarding his age. Mr. Abdul Haq Nizami, Radiologist, had been summoned by me and his evidence was recorded. According to his evidence the appellant was examined by him on 7-5-1967 and in view of the result of the X-Ray he formed an opinion that the appellant was aged about 17 years on 7th May 1967. The present incident had taken place on 22-2-1966. Thus it follows that the appellant was below 16 years of age at the time of this offence. Con--sequently the provisions of Bombay Children Act are applicable. There is no doubt that there is nothing on record that the appellant was unruly but the facts constitute the depravity of his character. A person is said to possess depraved character normally commits crime. Indeed one act would not saddle the person with the depravity of character 'but the circumstances in the present case point out against the appel-- lant. He was armed with a gun and the robbery was committed in broad daylight - from a place where there were people around. The appellant was unmindful of the consequences. He had actually fired one gun shot and although it was in the air but it cannot be presumed that he had no intention to direct the gun shot against the persons who were pursuing him. He could not fire a second shot as before it could be fired he fell down in the ditch and was immediately pounced upon by the pursuers and was overpowered. So it is clear that the first shot was fired to scare the pursuers and other shot would have followed directed against them if he had not fallen and was not over powered. So the appellant can be sentenced to imprisonment under section 27-H of the Bombay Children Act but the case will have to be referred to the Provin--cial Government under section 26 (1) of the Act.
9-A. In the result the conviction and sentence passed against the appellants are maintained and, their appeal is dismissed. It is further ordered that the case of Rehmatullah appellant be referred to the Provincial Government to be dealt with accord--ing to law.
FURTHER ORDER The appellant Rehmatullah is on bail. His bail bond is cancelled and non-bailable warrant be issued against him. He should be confined in the Central Jail, Sukkur till, suitable order is passed by the Government.
Copy of this judgment be sent to Government for necessary action.
Case referred to Provincial Government,