The appellants herein were tried by the learned Additional Sessions Judge, Khushab, for committing the offence of Haraba punishable under section 17 of Ordinance VI of 1979 within the limits of Police Station Noorpur Thal, District Khushab. On the conclusion of trial they were, vide his judgment, dated 15-12-1990, convicted under section 392, P.P.C. And sentenced to five years' R.I. And a fine of Rs.5,000 or in default to undergo six months' R.I. Each.
2. Chanpir Shah complainant was driver of Car No.GT-7981 owned by Muhammad Ashiq. He plyed it as a taxi. On 4-6-1990 at about 5 p.m. When he was present with his vehicle at taxi-stand, Khushab the appellants engaged him for a journey to Jandanwala for a fair of Rs.350. They commence the journey and reached Jandan wala bus stand at about 7 p.m. Reaching there, Jalal Khan and Nawab Khan appellants alighted from the car but Sardar Khan kept sitting on the front seat with the driver, After some time Jalal Khan and Nawab Khan appellants returned and asked the driver to take them back to Khushab. On return journey at about 9 p.m. When they reached in the area of Chak No.14/MB on Mitha Tiwana Road, Jalal Khan and Nawab Khan appellants suddenly put a cloth around the neck of the driver while Sardar Khan appellant held the steering of the car and stopped it The driver raised alarm but lie was threatened by Jalal Khan and Sardar Khan with Chhuris. He was taken to a short distance and was tied up with a Dhoti. They also removed his wrist watch as also his driving licence. Leaving him there, they drove away the vehicle. After a good deal of efforts, he released himself and came across A.S.I. Ghulam Abbas Shah P.W. He recorded his statement (Exh. PA.) to him. A.S.I. Ghulam Abbas Shah went to the place of occurrence, inspected the spot and secured the Dhotis from there. On the following day i.e. 5-6-1990 when he, accompanied by Imanullah and Ziaullah Constables besides Noor Muhammad and one other, in search of the snatched away car reached at a distance of about 2 Kms. Away from Arshadabad, he saw the car parked under a Sheesham tree. Reaching near it, the police party saw Nawab Khan appellant sitting in it and Jalal and Sardar Khan appellants standing nearby. Seeing the police party, Jalal Khan and Sardar Khan appellants took to their heels but they were overpowered by the police party at a short distance. The stolen car was secured by the police alongwith its registration book and the wrist watch of the complainant from the custody of the appellants, besides two Chhuris, one from Jalal appellant and the other from Sardar Khan appellant which they had used in causing injuries to the constables during scuffle. The police took all the three appellants into custody and after completing the investigation, submitted the challan to the Court of Session.
3. On the commencement of trial in the Court of learned Additional Sessions Judge, Khushab, to whom this case was entrusted, the appellants were charged under section 17 of the Offence Against Property (Enforcement of Hadd) Order, 1979. They pleaded not guilty and the prosecution produced as many as six witnesses.
4. Chan Pir Shah complainant appearing as P.W.1 did not support the prosecution case. In the examination in-chief itself lie stated that the appellants were not persons, who had snatched away the car from him nor did he mention their names in the report (Exh.P.A.). He was declared hostile and cross-examined by the Prosecutor but he could not extract any thing favourable to the prosecution except that in the cross-examination he admitted having effected compromise with the appellants. Noor Ahmad (P.W.2) testified that he had accompanied Ghulam Abbas Shah to the spot, who had secured two Dhotis in his presence and on the following day when he was still accompanying the police party headed by him (A.S.I.), they saw the car and after some encounter the police seized it from the possession of the appellants besides the stolen wrist watch of the complainant and the registration book. These articles, according to him, were later identified by the complainant as his own. Ghulam Shabbir (P.W.3) was also the witness of recovery of the Dhotis from the spot. S.I. Imanullah was also a witness of recovery of the stolen car (P.3), wrist watch (P.5) and the registration book (P.4) vide recovery memo. (Exh. P.C.) attested by him. A.S.I. Amanullah (P.W.5) had witnessed the recovery of Chhuris P.G and P.7 from two of the appellants, namely, Jalal Khan and Sardar Khan. The last witness was A.S.I. Ghulam Abbas Shah (P.W.G). He gave the details of investigation. In the cross-examination he admitted that Jalal Khan and Sardar Khan sustained thirty injuries in the incident.
5. On the conclusion of the trial the appellants, while examined under section 342, Cr.P.C., denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implication by the police, stated that they were present alongwith the road side and were taken into custody by A.S.1. Ghulam Abbas Shah, who subjected them to severe beating. They produce no defence.
6. On the conclusion of the trial the learned trial Judge convicted and sentenced the appellants in the manner aforesaid. Aggrieved by the impugned judgment, they came up in appeal to this Court.
7. It is argued on behalf of the appellants that Chan Pir Shah P.W., not having supported the prosecution story, no case was made out against the appellants for their conviction and sentence for committing the offence of highway robbery punishable under section 392, P.P.C. All the prosecution witnesses, according to the learned counsel, were police officials and no reliance could be placed on their uncorroborated testimony by any independent witness from public. It is contended that the appellants were apprehended on suspicion and after having been subjected to physical violence, the car and its registration book besides the wrist watch, for which there was no proof of their having been stolen, were planted on them in order to strengthen the prosecution case. In the opinion of the learned counsel, the element of dishonesty was lacking in this case and the appellants were entitled to acquittal on the benefit of doubt.
8. The learned counsel appearing on behalf of the State is of the view that the case stood amply proved against the appellants for committing highway robbery and they were rightly convicted and sentenced by the learned trial Judge. According to him, Chan Pir Shah complainant, in his cross-examination by the Prosecutor after he was declared hostile, had admitted that he had effected compromise with the appellants and for this reason, he had chosen not to support the prosecution case. In these circumstances whatever he stated in the complaint (Exh.P.A.), the contents whereof he did not deny in their entirety, were to be taken into consideration against the appellants alongwith other evidence available in the form of recoveries for their conviction under section 392, P.P.C., he adds.
9. Chan Pir Shah complainant (P.W.1) admitted having made statement (Exh. PA.) to the police, except to the extent of the names of the appellants and their being the offenders having forcibly deprived him of his motor taxi. In the cross-examination, he admitted having effected compromise with them. This admission supplies the reason for his having not deposed against them in an effort to save their skin from law. In any event, his resiling~ statement, to a greater extent, saves them from incurring the liability of their having committed the highway robbery punishable under section 392, P.P.C. But they cannot escape liability for being in possession of stolen car of the complainant and its registration. The recovery was effected by a police party, in search of the stolen vehicle of the complainant, which had chanced upon them. Obviously at that time none else excepting the police officials could effect recovery from them and it was to be inevitably witnessed by them at a deserted place on the roadside in the That area, where even the vehicular traffic is generally sparse. There could be no possibility of public men of the locality witnessing the recoveries.
10. To cap it all, during the scuffle both the parties i.e. Two out of three appellants and two constables from the police party, were injured. There could be no possibility of the police having falsely implicated the appellants because one of them belonged to District Bhakkar and the other two to District D.I. Khan, having no previous animosity with police. This being so, the conviction of the appellants is altered from under section 392, P.P.C. To the one under section 411, P.P.C. And they are sentenced to two years' R.I. Instead of five years' R.I. And to a fine of Rs.2,000 instead of Rs.5,000.
In default of its payment they shill further undergo six months' R.I. Only to this extent their appeal is accepted. They should' be informed accordingly through the concerned jail authorities as they continue to be behind the bars ever since their arrest. Keeping in view the circumstances of the case and the nature of the offence they shall not be entitled to the benefit of section 382-B, Cr.P.C.