Appellant Sudheer was tried alongwith Panwhar and Akkan alias Akk for the offence under section 307/393, P.P.C. And section 13---D of the Arms Ordinance, 1965, by Additional Sessions Judge, Sanghar, who vide judgment, dated 31-10-1989 found Panwhar and Akkan alias Akk not guilty and acquitted them from the change, but found the appellant guilty for the offence under section 393, P.P.C. And sentenced him to suffer R.I. Four years and to pay a fine of ., Rs.3,000 or in default to suffer R.I. For six months. The appellant was also found guilty for the offence under section 13-D of the Arms Ordinance, 1965, and was sentenced to suffer R.I. For one year and to pay a fine of Rs.1,000 or in default to suffer R.I. For three months. Both the substantive sentences were to run concurrently.
The benefit of section 382-B, Cr.P.C. Was also extended to appellant. By this appeal fled under section 410, Cr.P.C., the appellant has challenged his conviction and sentence.
2. Complainant Gul Muhammad Janwri is a driver by profession and he used to drive Bus No.856- It plying between Sanghar to Hala via Sinjhoro. On 17-6-1985 the complainant left Shahdadpur in the said bus loaded with passengers for Sanghar. At about 7-.l p.m. The bus reached near the bus- stand of Baqar Shah when one person sitting behind [lie driving seat of complainant took out a country-made pistol and asked him to stop the bus. The bus was stopped and immediately thereafter the complainant grappled with that culprit. One of remaining two associates who too was armed with a pistol then asked P.W. Ali Hyder, the conductor of the bus to hand over him the cash. There was resistance and Khan Muhammad Janwri, the cleaner of the bus also joined hands with complainant Gul Muhammad and P.W. Ali Hyder. In the struggle a shot was fired which struck on the body of the bus. The present appellant, who was armed with a pistol was, however, captured on the spot, while the rest decamped. During the struggle complainant Gul Muhammad, P.Ws. Ali Hyder and Khan Muhammad sustained injuries, and so the present appellant. On the same day at 8-30 p.m. The appellant was produced before S.H.O. Sinjhoro Police Station, who also recorded the F.I.R. Lodged by complainant Gul Muhammad. The Police Officer then arrested the appellant and recovered his country-made pistol and live cartridge produced by complainant. All the four injured persons including the present appellant were referred to M.O., Taluka Hospital Sinjhoro for examination and report. On 24-6-1985, co-accused Panwhar and Akkan alias Akk (since acquitted) were arrested, and on 29m6-1985 they were picked up in identification test. After usual investigation all the three accused were sent up.
3. At the trial the prosecution examined Gul Muhammad (P.W.1), Ali Hyder (P.W.2), Dr. Nabi Bux (P.W.3), Ali Nawaz H.C. (P.W.4), Yousuf (P.W.5), Muhammad Younus (P.W.6) and Nazir Ahmed S.H.O.
(P.W.7).
4. In his statement recorded under section 342, Cr.P.C., the appellant has denied the case of the prosecution. His defence, in his own words is as follows: "On that day 1 had come to purchase spade in Rukkan Burira village, where H.C. Ali Nawaz enquired from me, as to who was It and when I replied that 1 was Thahim, he kept me and brought me at police station, whereafter 1 was involved in this case falsely."
The appellant also examined himself on oath and produced Khan Muhammad (D.W.1), and Muhammad Saddique (D.W.2), in defence.
5. On the assessm ent of evidence available on record, the learned Additional Sessions Judge found the appellant guilty and convicted him accordingly. It is in these circumstances that the present appeal has been filed.
6. I have heard Mr. I.A. Hashmi, learned counsel for the appellant and Mr. Salman Ansari, learned counsel for the State. The latter has supported the impugned judgment.
7. Complainant Gul Muhammad (P.W.1) and Ali Hyder (P.W.2), were the driver and conductor of Bus No.856-108, respectively, and their presence in tile bus was not by chance. The presence of injuries on their persons as we'll as that of appellant leaves no room of doubt to conclude that the incident did take place between tile parties. Biml complainant Gul Muhammad (P.W.1), and Ali Hyder (P.W.2) have testified about the facts leading to this incident. No doubt there arc certain discrepancies in the statements of these two witnesses, bat they arc minor in nature and do not indicate that a deliberate attempt was made to misstate tile facts. Illiterate allegers seldom attach any importance to minor details. It is a case of red-handed arrest. The tenor of cross-examination made to complainant Gul Muhammad (P.W.I), and Ali Hyder (P.W.2) suggests that the appellant was present in the bus and the incident took place over the payment of fare.
8. Mr. I.A. Hashmi, learned counsel for the appellant has assailed the evidence of both these witnesses mainly on the basis of contradictions appearing in their statements. He has also endeavoured to show that the omission to examine Khan Muhammad, the cleaner of the bus was a strong factor creating doubt about the manner in which the incident had taken place. I have considered the above criticism and have also considered the arguments in detail that were urged before me with- a view to persuade me to discard the evidence relied upon by the trial Court, but I do not feel impressed with the arguments, nor can I see any reason to discard the evidence of natural witnesses who had suffered injuries during the course of incident. The learned Additional Sessions Judge, who had an additional advantage of seeing the demeanour of these witnesses has dealt exhaustively with the evidence and has rightly discarded the contradictions, which are not of material kind. The statement of A.P.P. (Exh.19) clearly indicates that, P.W. Khan Muhammad wits won over and consequently he was given up.
9. The appellant took a different stand in his statement recorded under section 342, Cr P.C. And under section 340(2), Cr.P.C. Made on oath. According to the defence set up by him he had come to village Rukan Burira, where he was arrested by Ali Nawaz H.C--- who involved him falsely in this case. Khan Muhammad (D.W.1) and Muhammad Saddique (D.W.2) have also supported the appellant in this behalf. The names of both these defence witnesses find no place in the statement of appellant recorded under section 340(2), Cr.P.C. On oath. No such suggestion was also put to Ali Nawaz H.C. In his cross-examination. I am, therefore, unable to accept this defence, which is in the nature of a forlorn hope.
10. For the above reasons, I am satisfied that the appellant was rightly convicted for the offence under section 393, P.P.C. The learned Additional Sessions Judge has, however, completely ignored the provisions of section 398, P.P.C which provides as follows: "If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
The appellant, who was found in possession of a fire-arm, which is a deadly weapon should have been awarded at least the minimum sentence of seven years prescribed by law. He was fortunate to have escaped this punishment. It was a fit case for enhancement of sentence, but it is too late now.
11. The appellant was also convicted for the offence under section 13-D of the Arms Ordinance, 1965, and was sentences accordingly. Section 14-A of the Arms Ordinance, 1965, which was inserted by Pakistan Arms (Amendment) Ordinance, 1976, ousted the jurisdiction of Assistant Sessions Judge/Additional Sessions Judge/Sessions Judge to try such case, not falling within tile proviso to section 13 of the Arms Ordinance, 1965, in clear terms. There is ample authority on this subject, and I- need not encumber this judgment by citing them. Since the case under section 13-D of the Arms Ordinance, 1965, wits exclusively tribal by a first class Magistrate, its trial by Additional Sessions Judge was Coram non judice and without jurisdiction. Accordingly the conviction recorded against the appellant for the offence under section 13-D of the Arms Ordinance, 1965, is set aside.
12. In the result the appeal fails and is dismissed, subject, however, to above modification. The appellant, who is in custody be informed accordingly.