' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No, 49 of 1988/BWP, arises from the judgment of learned Judge, Punjab Special Court for Speedy Trials No, VI, Bahawalpur, whereby he on 31-8- 1988 while refraining from convicting Shah Muhammad appellant under section 394/412, P.P.C., convicted him under section 392/397, P.P.C. And sentenced him to 7 years' R.I. And a fine of Rs,10,000 in default thereof 3 years' R.I.
2. The occurrence took place at 10-30 a.m. On 23-6-1988 in the Agriculture Research Institute, Village Zakheera at a distance of 4 k.m. From P.S. Saddar Bahawalpur. On the written report of Exh.P.C. Of Abdul Rashid P.W.8, which was given to Jiwan Shah A.S.I. P.W.12 at 10-30 a.m. On the same day at near Railway Station, Bahawalpur, Exh.P.C./1 was drawn up on the same day at 10-50 a.m. By Abdul Majeed, Head Constable P.W.S.
3. The allegations against the appellant and his co-accused namely Muhammad Ashiq and Muhammad Aslam are that at the eventful time, they overpowered Muhammad Siddiq Chaukidar P.W.9, caused him injury on his leg, tied his hands, snatched the keys of the store from him, confined him in the store, closed his eyes with a cloth, broke open the lock of the garage and took tractor Exh.P.1 belonging to the Government Agriculture Research Institute Gora Section, Bahawalpur, in their possession, started the same and drove it away.
4. Naveed Akram S.I. P.W.6 was on patrol duty in the area of village Fattuwali. At about 1-30 a.m. He gave signal to the driver of the tractor to stop but the driver did not stop. On this Naveed Akram S.I.
And his party chased the tractor and stopped it at a short distance. The three persons who were sitting on the tractor got down from it and ran away. The police party chased them and succeeded in apprehending Shah Muhammad appellant. The two co-accused namely Muhammad Aslam and Muhammad Ashiq made 'good their escape. On interrogation, the appellant brought the police party to Agriculture Institute, Zakheera Bahawalpur and pointed the room in which Muhammad Siddiq Chaukidar was confined. On opening the room Naveed Akram S.I. Found Muhammad Siddiq tied with a rope present there. Muhammad Siddiq identified the appellant as one of the robbers.
5. To prove its case, prosecution produced 13 witnesses. Muhammad Siddiq P.W.8 is the star witness of the prosecution case. He has supported the allegations against the appellant in to. He identified him (appellant) in the Court as one of the robbers. Naveed Akram S.I. P.W.6 stated that on the fateful night at about 1-30 a.m. He had stopped the stolen tractor. Three persons got down from the tractor and ran away. The police party chased them and successfully apprehended the appellant.
The appellant led the police party to the Research Institute and showed a room wherefrom Muhammad Siddiq P.W.9 tied with a rope, was recovered. Muhammad lqbal Salim, Assistant Botanist, P.W.11 stated that Naveed Akram S.I. P.W.6 had brought Shah Muhammad appellant to him on the eventful night and thereafter on the potation of the appellant, Muhammad Siddiq Chaukidar was recovered from a room of the Institute. Ch. Hashmat Ali, S.H.O. P.W.13 had taken into possession tractor Exh.P.1 vide memo. Exh.P.D. Attested by Muhammad Akhtar P.W.7 and Nawazish All A.S.I. (not produced), Dr. Muhammad Ashraf Chaudhary had medically examined Muhammad Siddiq P.W.9 and found: "A lacerated wound on left lower leg anterior aspect 2 x 1 c.m. Muscle deep."
' The injury was caused by blunt weapon within 12 hours and was simple in nature. Abdul Rashid, P.W.8 has supported the contents of the F.I.R. Lodged by him. The rest of the evidence is more or less of formal nature.
6. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. In reply to Q. No,7, he stated:- "A mare of Agronomist Department Agricultural Research institute was stolen some one month prior to the present occurrence, the tracks of which were followed by the P Ws. And in this case they suspected me of having stolen that mare. I had abused and insulted them for suspecting me on which they had made a threat that they would teach me a lesson. Further Naveed Akram S.H.O.
Samma Satta is nephew of one Asghar Khan who was S.H.O. Of P.S. Musafir Khana. He had apprehended my brother Qari Muhammad Aslam and released him after taking Rs,1,000 from me. I moved various complaints against him to higher police, on which he was transferred from P.S. Musafir Khana. Because of the above grievance, I have been involved in this case at the instance of Naveed Akram S.I, and the P.Ws."
' He did not produce any witness in defence. He, however, gave evidence on oath in disproof of the charges against him wherein he denied the allegations against him and repeated the plea taken by him in his statement under section 342, Cr.P.C.
7. Believing the prosecution evidence and disbelieving the plea raised by the appellant in his statement under section 342, Cr.P.C. And his evidence on oath, the learned trial Court has convicted and sentenced the appellant as stated above.
8. Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt, inasmuch as there is inordinate delay of about 10 hours in lodging the F.I.R.; that no parade was held for the identification of the appellant by Muhammad Siddiq P.W. And that since no deadly weapon was used in the occurrence, therefore, the conviction and sentence of the appellant under section 392/397, P.P.C. Was/is bad in law. The learned Assistant Advocate General has supported the judgment of the trial Court.
9. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statements of the appellant made under sections 340(2) and 342, Cr.P.C. And the circumstances appearing in the case, with care. We find that it is not a case of inordinate delay in lodging the F.I.R. The appellant and his co-accused had confined Muhammad Siddiq, the solitary witness of the occurrence in the room of the Agriculture Research Institute. So, he was not in a position to inform the police or anybody else. After apprehending the appellant Naveed Akram, S.I. Took him to the S.H.O.
Concerned who brought him to the place of occurrence and recovered Muhammad Siddiq from the room on the potation of the appellant. The delay thus stands fully explained. Muhammad Siddiq. P.W.9 is an independent witness. He had no enmity with the appellant to involve him falsely.
He has faced the test of cross-examination successfully. The statement made by him does not suffer from infirmities such as material contradictions/major discrepancies or dishonest improvements. When the police brought Shah Muhammad appellant to the Institute, the witness identified him as one of the robbers. In these circumstances, there was no occasion and necessity to hold parade for the identification of the appellant. The appellant was apprehended along with the stolen tractor immediately after the occurrence. Naveed Akram S.I. Had no motive to involve the appellant falsely in the case. The statement made by Naveed Akram S.I. Cannot be disbelieved because of the office he holds. The learned counsel has not been able to point out any legal infirmity in his statement. The circumstance of potation of the room wherefrom Muhammad Siddiq was recovered fully connects the appellant with the crime of the robbery committed by him and his co-accused. The statements made by Muhammad Siddiq P.W.9 and Naveed Akram S.I. P.W.8 are in consonance with probabilities and materially fit in with the rest of the evidence and the surrounding circumstances. The learned trial Court has properly appreciated the evidence, on record. The appellant has not been able to prove the plea taken by him under section 342, Cr.P.C.
Through any reliable evidence. For all these reasons, we are convinced that the appellant was one of three robbers, who had committed robbery at Agriculture Research Institute. Bahawalpur on the eventful night.
10. Adverting to the question as to whether the appellant could have been convicted under section 397, P.P.C. We find that Muhammad Siddiq P.W. Had not "1 received any grievous injury during the occurrence and no deadly weapon was used by the appellant, therefore, no case for his conviction under section 397, P.P.C. Read with section 392, P.P.C. Was made out. The relevant section may be reproduced advantageously: Section 397, P.P.C.
"If at the time of committing robbery or dacoit, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years."
' It has been stated in the F.I.R. That the culprits had inflicted injury on the left leg of Muhammad Siddiq P.W. With some sharp-edged weapon. In his statement before the Court Muhammad Siddiq P.W.9 stated that one of the robbers had given him beating by kicks and he was also given blow with something on his leg.
The upshot of the above discussion is that while maintaining the conviction of the appellant under section 392, P.P.C. The sentence of 7 years' R.I.Is reduced to 5 years' R.I.