ABDUL KARIM KHAN KUNDI, J.--- By his judgment and order dated 21-11-1990 learned IInd Additional Sessions Judge, Nawab Shah found the appellants guilty on the charge of attempt to commit Harrabah punishable under the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979, hereinafter referred to as Ordinance, and accordingly convicted and sentenced them to seven years' R.I. Each under section 22 of the Ordinance.
2. Prosecution unveiled its case at the trial that Muhammad Iqbal, complainant an employee of Agriculture Department had returned home at 1-00 p.m. On the day of occurrence and was present in his house along his family that at 1-00 p.m. Three persons armed with fire-arms entered the house and threatened the house inmates to keep quiet and demanded keys of the boxes of jewellery and cash. In the meanwhile Tamsila Iqbal 7/8 years old daughter of complainant slipped away and came out of the house and raised cries which attracted neighbours and others who also raised noise at which the culprits came out of the house and started firing in the air and fled away.
They were given, a chase by the public and police and they took a shelter inside cotton factory of one Noor Ahmad Shah. The factory premises were accordingly surrounded by police,, with whom fires were exchanged. The two appellants had surrendered their arrest along arms while the third accused (acquitted) had succeeded in his escaping. The police had registered separate cases against the appellants, one under section 307/353/34, P.P.C. And the other i.e. The present case under section 393, P.P.C. Read with section 22 of the Ordinance. In fact all the offences had been committed by the appellants and their co-accused in one series of acts so connected together as to form the same transaction and they should have been charged at one trial for all such offences as required under section 235, Cr.P.C. Herein the appellants and their co-accused were also charged for having committed offences under the Ordinance, hence they should have also been tried jointly for other offences by a competent Court in the Sessions Judge/Additional Sessions Judge as required under section 24 of the Ordinance. There has been placed on file a certified copy of the judgment of the Court of IInd Additional Sessions Judge, Nawabshah, dated 11-12-1990 vide the appellants were acquitted on the charges under section 307/353/34, P.P.C. More on technical grounds. We would have minded to remand the case for joint trial but the said case has since entailed into acquittal. We understand that the State would perform its own duty for filing an appeal against acquittal of the appellants in Sessions Case No.436 of 1987 and we would better confine our findings to the present case.
3. After going through the evidence on record we have found that Muhammad Iqbal complainant had supported the case of prosecution to the extent that an offence of attempt of Harrabah was committed at the relevant time and place by three persons with muffled faces who had later on fled away at the alarm raised by the neighbours and were subsequently arrested from inside the cotton factory after exchange of fires. The witness was to do a concession to the appellants that the two culprits present in the police station could not be identified by him ;under a pretext that they had come inside the house with muffled faces. He was not cross-examined perhaps for the reasons that he failed to identify the culprits. Nonetheless his evidence established the case of prosecution to the extent of attempt to commit Harrabah inside his house by three persons, out of two were arrested by the police and the public from inside the cotton factory where they had taken a refuge after fleeing from the spot. Muhammad Sadiq,(P.W.2) having received injuries during the course of incident had only stated that he heard commotion and found a mob along police personnel at the place of Wardat and had also heard that the culprits were arrested by the police.
He was also not cross-examined perhaps because he stated to have received injuries due to a fall on the ground. Muhammad Sharif (P.W.3) also made the statement in the same sequence and was not cross-examined. Ali Hussain Shah, Head Constable had accompanied Irshad Ahmad, Inspector Police Station Town along others to the place of Wardat and had exchanged fires with the culprits and later on the police had arrested the two appellants who had surrendered themselves along fire-arms. He was not cross-examined on the point of the appellants' arrest along fire-arms from inside the cotton factory. He was only cross-examined on the point that nobody was hurt in the exchange of fire and that no empty bullets were recovered from the spot. Mahboob Khan, A.S.I. (P.W.5) had given evidence about the arrest of the appellants along fire-arms from inside the cotton factory. He was also cross-examined in the sequence of earlier police officials. Muhammad Ali (P.W.6) and Irshad Ahmad, Inspector (P.W.8) had supported the case of the prosecution except that they stated that the bullets had not hit the wall and other places and that their empties were not collected from the spot and only four empties of the appellants were collected from the spot. Nazir Ahmad (P.W.7) stated that he knew nothing about the case. Thus, we have the prosecution evidence which established one thing that there was an attempt to commit Harrabah by some three persons who had fled away at the alarm raised by the girl and that the culprits were given a chase by the public and the police and that the culprits had taken shelter inside the cotton factory of one Noor Ahmad Shah where there were exchanged fires for half an hour and afterwards the two appellants had surrendered along their fire-arms. The appellants were examined under section 342, Cr.P.C. They were put the entire incriminating evidence, which they termed as incorrect and about the witnesses they stated that no private person has deposed against them. They did not examine themselves on oath in disproof of the charges and allegations made against them nor they produced evidence in their defence. They did not explain their arrest along fire-arms from inside the cotton factory where they had taken shelter. There shall be drawn an adverse inference against them for having not examined themselves on oath in disproof of the charges and allegations made against them at the trial. They have been found having attempted to commit the offence of Harrabah punishable under the Ordinance and in that attempt they have been found to have acted towards the commission of the offence for having called keys of the boxes and having threatened the inmates of the house to keep quiet and to have afterwards opened fire in order to intimidate the public and to facilitate their escape. There has been prescribed punishment upto ten years for the offence under section 22 of the Ordinance and in the circumstances of the case award of seven years' imprisonment to the appellants appears to be just and proper. Having found no merit we hereby order the dismissal of appeal.