' Salah-ud-Din (29 years), Muhammad Akbar and Wahid Ahmad (each 25 years) appellants, were convicted under section 397, P.P.C. By a Magistrate exercising powers under Section 30, Cr.P.C., Lahore vide judgment dated 27-41981 and sentenced to 7 years' R. L. Each. Feeling aggrieved they have separately filed appeals (Criminal Appeals Nos.252, 253 and 288 of 1981) which are being disposed of together.
2. Muhammad Rafique, complainant (P.W.1), was driving a Rickshaw No,LET-299 on 12-8-1978 and at about 3.30 p.m. Was present near Ravi Bhudda where he was engaged by three persons to take them to Kot Lakhpat Railway Station. Their names were learnt later on to he Salah-ud-Din.
Muhammad Akbar and Wahid Ahmad (the appellants). When he reached Kot Lakhpat his passengers asked him to proceed to Township. When he reached near the Haveli of Hassan Din and Bunglaw of Sh. Farooq in Township they asked him to stop the rickshaw; he complied. Akbar, appellant alighting from the rickshaw, looking towards Haveli and the Bungalow, and at once taking out revolver from his pants placed at his temple region. He directed him to surrender whatever he had, otherwise he would be shot. Wahid Ahmad who was sitting on the back seat placed pistol on his neck and Salah-ud-Din his double-edged dagger on his flank. He had only a currency note of Rs,10 in his pocket which he surrendered to Akbar. He was then asked to hand over the key of the rickshaw which he did. Leaving him there they took away the rickshaw which was driven by Akbar. They proceeded towards Shah Di Khoi. When they had gone a little away, the complainant started raising alarm and chasing. In the fields there was a water channel and when the rickshaw was tried to be taken through it, it stuck up in the mud. When the rickshaw could not be taken out all the three started proceeding on foot. The complainant claims to have followed raising alarm and started calling the people for help. Muhammad Younas (P.W.2), Allah Rakha (P.W.3), Sher Bahadar (P.W.4), Muhammad Sadiq (P.W.5) reached. He told them pointing towards the appellants that they had looted him, they started running after the appellants. On seeing them being chased the revolver and pistol were fired but the chase was continued. In the meantime other people from the village also reached. Muhammad Hussain of Shah Di Khoi proved courageous of all and hurled a brickbat hitting Wahid in the face who was upset and his pistol fell from his hands. Thereafter the other two appellants also threw their weapons and surrendered in hands up position. Statement (Exh. PA) giving the above details was made to Muhammad Ilyas, A.S.1. Of Police Station Model Town (P.W.6) just at the spot where he alongwith Constables had reached while on patrol on hearing the alarm and the report of fireshots at 6-15 p.m. The appellants and their weapons were produced before him. He sent the statement (Exh.PA.) to Polic- Station Model Town where formal F.I.R. (Exh.P.A./1) was registered by Wilayat Ali, A.S.1. (P.W.7) at 7-05 p.m.
3. Salah-ud-Din, appellant in his statement at the close of the trial took the stand that Rafique complainant and Ashraf had a joint workshop. The rickshaw belonged to Ashraf. Wahid, appellant had also a workshop at Badamibagh and an engine had been given to Ashraf for repair which he misappropriated and there had been a dispute between Ashraf and Wahid. Ashraf had thrown a threat. In complicity with Police Station Model Town a false case had been concocted. His stand was adopted by Wahid Ahmad and Muhammad Akbar as well. They also produced witnesses in defence to say that they were peaceful citizens without any criminal record.
4. Learned counsel for the appellants and the State counsel have been heard and record thoroughly gone through with their help. Muhammad Rafique (P.W.1) has provided the details of the occurrence as given in the F.I.R. Allah Rakha (P.W.3) corroborated him that he was returning to his house at 4/5 p.m. After dais's duty and on the way saw Muhammad Rafique, complainant running and raising alarm that his rickshaw had been snatched and was being taken away. He accompanied him and the rickshaw was stuck up in the water channel and three persons were seen running away. They were joined by Muhammad Hussain. He chased on his cycle and called out the people. The culprits entered a garden and fired 3/4 shots. On seeing them Muhammad Hussain gave a brickbat hitting Wahid appellant whose pistol fell down. The other two also went in hands up position. They were caught hold of along with their weapons. The Police reached after a little while and they alongwith their weapons were produced before the Police. Akbar, appellant produced currency note (Exh.P6) which was secured vide memo. Exh.P.C. Rickshaw and the weapons were also secured (memos. Exhs.P.B., P.D., P.E. And P.F.). Muhammad Younas (P.W.2) supported the version by saying that at 5 or 5-30 p.m. When he was giving a bath to his buffaloes, Allah Rakha called him for help (pointing to the culprits) that they were running away. He put on his clothes in haste and reached where many persons collected and the Police also reached. The appellants were caught hold of where after he ran back to his buffaloes. Similarly Sher Bahadar testified that he heard the alarm of "catch the thieves", reached and saw many persons collected.
The culprits were caught hold of and taken away to the Police Station. Muhammad Ilyas, A.S.I.
(P.W.6) has deposed about the apprehension of the appellants at the spot and production of the crime weapons and currency note. Except Muhammad Rafique the other witnesses produced are from the locality/villages where the appellants were caught hold of and they have given a straightforward and forthright account. Learned counsel for the appellants failed to point out anything in the statements of the witnesses so as not to believe them. The conclusion on facts reached by the learned Magistrate was, therefore, perfectly correct.
6. Learned counsel for the appellants contended that the F.I.R. Had been recorded after preliminary investigation; there were discrepancies in the statements of the witnesses as to by what means the Police had reached the spot and how they had left. But while going through the record, as observed above, the discrepancies do not touch the merits of the case and the statement of the complainant seems to have been recorded at the spot when the appellants were apprehended.
The contention is rejected.
7. Mr. Munir Ahmad Bhatti, Advocate, counsel for Salah-ud-Din, appellant strenuously argued that no certificate as required under subsection (2) of section 364, Cr.P.C. Having been given on the statement of the appellant recorded at the close of the trial, grave illegality had been committed which could not be cured under section 537 ibid. He relied upon Allah Ditta and 3 others v. The State 1986 P Cr, L J 1987, Rahil Sajid v. The State 1986 P Cr. L J 1006, Muhammad Inayat and others v. The State 1985 P Cr. L J 469 and Saeed Ahmad Khan v. The State 1985 P Cr. L J 2489. All the above- quoted cases have been decided by Single Bench. Learned Assistant Advocate-General met the argument by drawing the attention of the Court to Muhammad Amin and others v. The State 1987 P Cr. L J 1922 (D.B. Case) and Rehmat Ali v. The State 1986 SCMR 446. The two reports referred to by the learned Assistant Advocate-General lay the contrary rule and the pith and substance of the whole matter is whether any irregularity or illegality in the conduct of the trial has caused any prejudice to the accused or resulted in miscarriage of justice and whether the illegality or irregularity, which could have been pointed out during the trial, had been pointed out at the earliest or not. The principle of law laid down by the Supreme Court of Pakistan and followed by the D.B., as indicated above, would prevail over the interpretation placed upon the provisions of sections 342, Cr.P.C. And 537, Cr.P.C. By the learned Single Bench. The contention raised by the learned counsel for the appellant is, therefore, rejected.
8. Learned counsel for the appellant at the end argued that the case even on facts as concluded above, did not fall under section 397, P.P.C. The argument carries weight. The provisions of section 397, P.P.C. Are to the effect that if at the time of committing robbery or dacoit the offender uses any deadly weapon, he shall be punished with an imprisonment of not less than 7 years. In the present case the appellant had not used their weapons. What they had done was the potation of the weapons at the complainant and under the fear thereof he was made to surrender his rickshaw and Rs,10 he was carrying. The offence committed thus amounted to simple robbery punishable under section 392 of the Code. Conclusion accordingly.
9. The upshot is that the appeals partly succeed. The conviction of the appellants under section 397, P.P.C. Is set aside and they are rather convicted under section 392, P.P.C. And sentenced to 3 years' R.I. And a fine of Rs,1,000 or in default thereof 6 months' R.I. They are on hail, be taken into custody and sent to jail to serve out the sentence. They will have the benefit of the provisions of section 382-B, Cr.P.C.