Ghulam Rasool alias Rehmat, aged 35, was tried and convicted by Magistrate Section 30, Lahore Cantt, Lahore under section 458, RP.C. And sentenced to undergo R.I. For 5 years plus to pay a fine of Rs.1,000 in default whereof to undergo R.I. For 6 months in a case registered against him at Police Station Baghbanpura on 29-12-1981 at 4-30 a.m. On the statement of Hashmat Ali (P.W.1) for an occurrence said to have taken place on the same day in the late hours of the night at 3-30 a.m.
The prosecution case before the police as well as at the trial was that the house-trespass by entering into the house of Hashmat Ali P.W. During night while armed. Hashmat on hearing noise had got up and seen the appellant taking away his utensils. On Hashmat having challenged him, he inflicted two blows with the Hathori and started running. The noise raised by Hashmat attracted the neighbours. Muhammad Hafeez, Haji Muhammad Yaqub, Sher Muhammad and others started chasing him. The complainant and others noted that the appellant who had already stolen cycle had started moving on that. When the P.Ws. Started chasing him, he gave a Lalkara to one person accompanying him, saying `Taja fire at them', which he did. However, the fire instead of hitting Aslam who was nearby struck the wall of the house of Aslam. Hashmat succeeded in catching hold of appellant whereupon the companion of the appellant hurled a Chhuri blow on Hashmat to release the appellant. Hashmat pushed appellant in between, as a result of which the blow struck the appellant. His companion ran away. After the occurrence was reported, Sub-Inspector came there, arrested the accused, got him medically examined and took into possession the articles recovered from him which he had stolen from the house of the complainant and Yaqub P.W.
3. The ocular account has been deposed to by Hashmat Ali (P.W.1), Hafeez (P.W.2), Muhammad Yaqub (P.W.3) and Sher Muhammad (P.W.4).
4. Aslam (P.W.7) stated about the recovery of the articles from the appellant. The stolen articles recovered from the accused were identified by Haji Muhammad Yaqub and Hashmat as their property.
5. Medical evidence was also led to prove that Hashmat and Ghulam Rasool had suffered injuries during the occurrence.
6. The evidence of recovery of Hathori from the possession of the appellant was also produced. The Police Officer who had conducted the investigation, effected the arrest of the appellant and submitted challan to Court, was also examined, and he gave all the details.
7. The appellant during statement under section 342, Cr.P.C. Denied the prosecution case and pleaded that while being in jail in other case he had developed enmity with one Sadiq and that he had got him falsely involved in. This case. He also examined in defence two witnesses. Both of them stated that the were of the appellant had told them that her husband had been involved in this case at the instance of Sadiq Shah.
8. The learned trial Magistrate while holding the appellant guilty under section 458, P.P.C. Did not believe the defence evidence observing that the same was hearsay as the lady from whom the defence witnesses had learnt had not been produced at the trial.
9. I have gone through the evidence and considered the contentions raised by learned counsel for the appellant.
10. The argument of learned counsel for the appellant that the appellant, in fact, was attacked and inflicted injuries and that he was got challaned by the P.Ws. To escape their own trial for having caused injuries to the appellant, in my assessment, does not carry any weight. In that, the appellant had no ostensible reasons to be at the place where he was caught and arrested. He did not belong to that area. None of the witnesses were inimical. In fact, they did not even know his name and had come to know of that after he had been taken into custody. The appellant could not, suggest even, at the trial that the complainant or for that matter any of the P.Ws. Were inimically deposed towards him. His stance that he had been got involved by Sadiq Shah with whom he had developed differences while being in jail was without any substance. In fact, the evidence produced in that regard was not admissible. The mere fact that the co-accused of the appellant could not be arrested is no ground to let of the appellant. At the best, failure to arrest the co-accused can be termed as inefficiency of the police which f the learned trial Court had taken note of and has made observation also. After having considered all aspects of the case I am convinced that, there is no merit in the appeal. The same is dismissed.
11. The appellant is on bail. His bail bond stands cancelled. He shall be caused to be arrested through non-bailable warrants and lodged in jail to undergo the remaining sentence. He shall, however, be given benefit of section 382-B, Cr.P.C.