M.B.R. JEHANGIRI, J.- Daraz Khan, Khitab, Mir Qad Ayaz, Umar Khan and Habib Khan, appellants stood trial before the learned Special Judge/Sessions Judge, Bannu, in case F.I.R. No. 36 registered at Police Station, Lakki, District Bannu, under sections 307/353/216 P.P.C, read with section 5 of the Explosive Substances Act, 1908 and section 13 of the Arms Ordinance, 1965. On conclusion of the trial, the appellants have been convicted and sentenced as under:
(i) Daraz Khan and Mir Qad Ayaz Khan have been convicted under sections 307/34 P.P.C, and sentenced to three years rigorous imprisonment each and a fine of Rs. 1000/- each or to suffer three months simple-imprisonment, They have been further convicted and sentenced to three years rigorous imprisonment and a fine of Rs. 1000/- each or three months simple imprisonment in default under section 13 Arms Ordinance; and have also been convicted under section 353 P.P.C, and sentenced to one year rigorous imprisonment and Rs. 300/- as fine each or one month simple imprisonment in default thereof.
(ii) Khitab has been convicted under section 353 P.P.C, and sentenced to one year rigorous imprisonment and a fine of Rs. 300/- or one month simple imprisonment in default thereof; he has also been convicted under section 5 of the Explosive Substances Act and sentenced to three years rigorous imprisonment and a fine of Rs. 1000/- or three months simple imprisonment in default thereof.
(iii) Umar Khan and Habib Khan have been convicted under section 216 P.P.C, and sentenced to one year rigorous imprisonment each or to suffer one month simple imprisonment in default thereof.
2. The substantive sentences of imprisonment have been ordered to run concurrently.
3. All the five appellants have impugned their convictions and sentences by way of this appeal.
4. The prosecution case, in brief, is that Daraz Khan, Khitab and Mir Qad Ayaz were proclaimed offenders in cases respectively registered vide F.I.R. No. 5 dated 1-2-1983 under section 302/307 read with section 34 P.P.C, at Police Station Kakki; F.I.R. No. 41 dated 23-7-1981 under section 302/109 P.P.C, and F.I.R. No. 17 dated 23-2-1982 under section 506 read with section 34 P.P.C. In pursuance of an information that the three accused-appellants were present in the 'Hujra' of Habib and Umar Khan, convict-appellants, in village Koka Habib-cum- Arkhi Killay, Nasrullah, Khan the then S.H.O.
Police Station Kakki (P.W.2) alongwith Nek Nawaz A.S.I. (P.W.6), Muhammad Yousuf Head Constable (P.W.3), Behrman I.H.C. (P.W.S. and six constables took positions around the premises. The proclaimed offenders opened fire at the police party from inside the 'Hujra'. The police party in self- defence returned fire hitting one of the proclaimed offenders and the ensuing 'melee' disheartened them and, therefore, they were ordered to surrender due to which Daraz Khan, accused-appellant, produced an unlicensed Belgian made, 12 bore D.B. Shot gun and two empties with bandolier (P-2) containing 20 cartridges, a Hand Grenade No. 39-POF/59 was recovered from Khitab Proclaimed offender whereas Mir Qad Ayaz produced an un-licensed 8.M.M. Rifle freshly discharged with bandolier (P-4), 40 rounds and a dagger (P-5). Ali these arms and ammunition were secured vide memo Ex.P.R. The proclaimed offenders were arrested on the charges under section 307, 353 P.P.C, section 13 Arm Ordinance. While Khitab Proclaimed Offender was additionally arrested under section 5 of the Explosive Substanced Act, 1908. Umar Khan and Habib Khan were apprehended under section 216 P.P.C, on the charge of harbouring the proclaimed offenders. Nasrullah Khan S.H.O, scribed the Murasila (Ex.PA/1) on the basis of which a case was duly registered vide F.I.R. Ex.PA.
During the investigation, the S.H.O, recovered three empties (P-6) of 8.M.M. From near the place where Mir Qad Ayaz appellant was standing while blood-stained earth was secured from the place where Daraz Khan accused was hit. Within a radius of three paces and 8 paces away from Daraz Khan accused, four card boards P-6/1 of 12 bore were taken into possession and sealed into a parcel.
5. Daraz Khan injured accused was examined on 14-4-1984 at 1-45 P.M. By Doctor Naimatullah, Medical Officer, District Headquarters Hospital, Bannu, and found the following injuries on his person:-
(1) One fire arm injury inlet wound 1/3"x1/3" on the lateral buttock above the anus.
(2) One fire-arm injury outlet wound intestine outside the wound which is impacted in the wound between the umbilicus and the anus approximate 2x2"
The injuries were lateron declared grievous. The duration of injuries were 3 to 6 hours, which appeared to have been caused by discharge of fire-arm.
6. The prosecution in support of its allegations examined Mohammad Ayaz H.C. (P.W.1) who on receipt of Murasila Ex.PA/1 registered the case vide F.I.R. Ex.PA. Nasrullah Khan S.H.O. (P.W.2), Nek Nawaz Khan A.S.I. (P.W.6), Muhammad Yusuf H.C. (P.W.3), Behrman I.H.C. (P.W.5) and Doctor Naimatullah (P.W.7).
7. The accused Daraz Khan Mir Qad Ayaz and Khitab when examined under section 342 Cr.P.C, categorically repudiated the allegations that they were absconders and professed their innocence in the cases respectively regr^red against them. Likewise, the charge of ineffective firing at the police was also disowned by them. The recoveries of arms and ammunition from their possession was also denied. Daraz Kan when asked as to how he has sustained fire arm injuries that is what he stated:- "I was fired at by the police while on the way to police station when near Hayat Killay about 1-1/2 kilometers from the alleged scene of occurrence and that too for no reason"
8. Nasruallah Khan, S.H.O. (P.W.2) in his deposition before the trial Judge reiterated the case of the prosecution set up in the F.I.R, and qua the firing made by the accused Daraz Khan, Mir Qad Ayaz Khan, and Khitab, proclaimed offenders, at the police party and to the recoveries effected from them as also from the spot of arms and ammunition on the strength of memo Ex.P.R. Which was lateron sealed into parcel, vide memo Ex.P.R./3. These allegations lend support from the evidence of Mohammad Yusuf Head Constable, (P.W.3), Behrman I.H.C, (P.W.5) and Nek Nawaz Khan, A.S.I, (P.W.6). These P.Ws, were cross-examined at length and after going through it, we are inclined to subscribe to the view taken by the learned Special Judge that their integrity has not been shattered at least to the extent of ineffective firing at the police party by accused Daraz Khan, Mir Qad Ayaz Khan and Khitab in furtherance of their common intention.
9. S. Zafar Abbas Zaidi, the learned counsel for the appellants contended that the evidence of the prosecution on the point that the three appellants who were also proclaimed offenders had fired at the police party and were thus liable under section 307 and 353 read with section 34 P.P.C, was not worthy of credence, in that they were all interested Police Officers. According to him, the prosecution ought to have but had not associated any public witness from the villages through which the police party had passed while reaching the spot, particularly one Rabbani, who according to Nasrullah Khan, S.H.O. (P.W.2) had been attracted to the spot at the time of occurrence. He had also serious criticism to the manner in which the recovery of arms and ammunition was affected. The learned counsel further contended that the alleged ammunition recovered from the possession of Khitab appellant was not proved to be a hand-grenade at all, because no expert evidence was brought on the file that in fact it was a hand- grenade in stricto - senso. According to him, the letter dated 6-1-1985 from 19th Punjab Regiment communicating the destruction of a hand-grenade does not furnish a proof of the so-called hand-grenade allegedly recovered from the possession of Khitab appellant. The learned counsel also maintained that Habib and Umar Khan appellants were not at all proved to have harboured the other three appellants who had been declared as proclaimed offenders. He lastly submitted that, in any case, the appellants were entitled to the benefit of section 382-B Cr.P.C, which has not been extended to them.
10. As against this, Mr. Mohammad Ibrahim Khan ALizai, the learned counsel appearing on behalf of the State, urged that the allegation of .Firing by appellants 1 to 3 at .The police party and recovery of arms and ammunition from them is established from the evidence of Nasrullah Khan S.H.O.
(P.W.2), Mohammad Yusuf H.C. (P.W.3), Behrman I.H.C. (P.W.5) and Nek Nawaz Khan, A.S.I. (P.W.6). He has, however, conceded that the charge of harbouring under section 216 Cr.P.C, against appellants 4 and 5 has not been specifically brought home to them.
11. It has not been denied that appellants Daraz Khan, Mir Qad Ayaz and Khitab were proclaimed offenders. It has also not been seriously disputed that they had been arrested from the court-yard of the hujra allegedly belonging to Habib Khan and Umar Khan appellants. The first question to be addressed would be as to whether they had at all made firing at the police party with a view to escape from their clutches after having been surrounded in the premises. On this point, we have the evidence of four Police Officers, namely, Nasrullah Khan, S.H.O., Nek Nawaz Khan A.S.I.
Mohammad Yusuf and Behrman Headconstables. Learned counsel for the appellants had invited our attention to the contradiction inter se. Of these P.Ws on the point that the accused had fired from inside the hujra or from the court-yard. But this minor contradiction, by itself, is not sufficient to discredit the testimony of the Police Officers, who had no animus to falsely implicate the first mentioned three appellants. The fact that the three appellants have been arrested from the venue of the crime duly armed with prohibited arms and ammunition goes along way to prove the charge of firing at the police party by appellants 1 to 3 and recovery of arms and ammunition from their possession at the spot. The report, Ex.P.E./1, of the Forensic Science Laboratory Peshawar, lends further support to the case of the prosecution on the point that appellants 1 to 3 had resorted to indiscriminate firing at the police party which luckily proved ineffective. This evidence has been relied upon by the learned trial Judge and we do not find any reason to disagree with him on this score.
12. The contention of the learned counsel for the appellants that the case of the prosecution brisled with grave doubts, because there being public witnesses present at the spot, none of them was associated with the recoveries and instead only the police witnesses had testified to the recovery memos, has no substance. The mere fact that the prosecution witnesses happened to be the Police Officers is not enough to discredit their testimony. In this context, we rely on Kamir Vs. Nazir Ahmad and others (1980 S.C.M.R. 791). It was observed in this precedent at page 794 that:- "Even though witness Khushi Muhammad was not produced, and there might have been some litigation between the respondent and the recovery witness Sanata, yet the evidence of the Investigating Officer could not be brushed aside, specially when there was no motive on the part of the complainant to falsely implicate the respondent. There is no rule that the evidence of Police Officer as to the recovery of incriminating articles cannot be accepted, whatsoever the circumstances of the case" (Underling is ours).
Respectfully following the dictum laid down by the august Supreme Court in the above cited authority, we would reiterate that there is no rule that the evidence of a Police Officer as to the recovery of incriminating articles car. Noi be accepted whatsoever the circumstances of the case.
This being so, there can be no doubt that the appellants T to 3 had offered armed resistence to the Police Officers who were acting in discharge of their duties and had thereby used criminal force with intent to prevent or deter them from the discharge of their duties as such public servants and were, therefore, punishable under section 353 apart from section 307 read with section 34 of the Pakistan Penal Code. The evidence of P.Ws 2, 3,5 and 6 further proves the charge against appellants Daraz Khan and Mir Qad Ayaz respectively who were armed with a 12 bore D.B. Shotgun Belgian made in which two empties were found lunch up giving fresh smell of discharge alongwith a bandoliar containing 20 cartridges and five shot rifle of 8.M.M. Bore which was also giving fresh smell of discharge alongwith a bandoriar and a dagger and they were, therefore, rightly convicted and sentenced under section 13 of the Arms Ordinance, 1965. The sentences of imprisonment and fines awarded to both of them are also not shown to be harsh in any manner. All the three appellants aforesaid have also been correctly convicted and sentenced under section 353 read with section 34 of the Pakistan Penal Code.
13. The guilt against Khitab appellant under section 5 of the Explosive Substances Act is, However, not proved to the hilt. He is, therefore, entitled to the benefit of doubt and is hereby acquitted of it.
14. Habib Khan and Umar Khan appellants have been convicted and sentenced under section 216 P.P.C, for a conviction under the said section of law, it must be shown, firstly, that there has been an order for the apprehension of a certain person as being guilty of an offence, secondly, knowledge by the accused party of the order and, thirdly, the harbouring or. Concealing by the accused of the person with the intention of preventing him from being apprehended. In the instant case, the hujra from where the accused have been apprehended, is not proved by any evidence to be the property of appellants Umar Khan and Habib Khan. Then, it was also essential for the prosecution to have proved that the appellants Habib Khan and Umar Khan knew of the alleged order that the first mentioned three appellants were the proclaimed offenders. It is clear that it was necessary for the prosecution to have established that the order that the first three appellants were proclaimed offenders were known to the last mentioned two appellants and that the act amounting to the harbourage was done by the appellants with that knowledge. In this context, reference may profitably be made to the high authority of Privy Council in K.R. Endwaramurthi Goundan V. Emperor (A.I.R. (31) 1944 Privy Council 54 (Madras), wherein their Lordships have laid down the scope of charge under section 216 P.P.C, in the following words:- The section requires, if the offence is to be established, first that there has been an order for the apprehension of a certain person as being guilty of an offence, secondly knowledge by the accused party of the order, thirdly, the harbouring or concealing by the accused of the person with the intention of preventing him from being apprehended".
It would thus be seen that the appellants Habib Khan and Umar Khan are not shown to have had the knowledge of an order for the apprehension of appellants 1 to 3 as being guilty of an offence and that they had in fact harboured or concealed the accused-respondents 1 to 3 with intention to preventing them from being apprehended. The evidence that one of them was arrested in front of their house near the hujra while the other one produced himself in the police station on the following day of occurrence is not of any significance. We are, therefore, clear in our mind that the ingredients of section 216 P.P.C, for harbouring have not been satisfactorily brought home to the accused Umar Khan and Habib Khan. They are, therefore, acquitted of this charge and be set at liberty forthwith if not wanted in any other case.
15. Learned counsel for the appellants, as the last leg of his arguments, urged that the learned trial Judge has erroneously not extended the benefit of section 382-B Cr.P.C., whereunder it has been provided that if the accused had been in custody, before the sentence is being passed, the Court is, in view of the amendment by Ordinance 71 of 1979, bound to take into consideration the period of such custody, and further that the Court had to allow the benefit of section 382- B Cr.P.C, on its own even without asking by the prisoner. The learned counsel thus submitted that since the sentences have been awarded to the appellants without taking into consideration the provision of section 382-B Cr.P.C., the appellants are entitled to the benefit of the said provision of law.
16. It is disquiting to note that the lower Courts, in most of the cases, in utter disregard of this mandatory provision of law, while awarding sentences ignore the same. It is, therefore, necessary to understand the scope and object of section 382-B Cr.P.C. It has already been dealt with by the Lahore High Court in Sultan Ahmad V. The State (1981 P. Cr.LJ. 602) and Nur Ellahi V. The State (P.L.D.
1983 Lahore 126). In the case of Nur Ellahi, Rustam S. Sidhwa J. Of the Lahore High Court, as his Lordship then was, was pleaded to reiterate the object and scope of this provision as:- "to grant to the accused the benefit of a concession by reducing in appropriate cases the sentence intended to be imposed on him, by the whole or some portion of the period of detention already undergone by him as an under-trial prisoner, so as to compensate him for the unduly long incarceration to which he may have been subject as a result of the delay in the trial for any cause for which he was not responsible. In view of undue delay in criminal trials, both due to shortage of Judicial Officer and failure in procedural working, the necessity of granting the Courts the power of relieving convicts from the full burden of the sentences proposed to be imposed on them, where they had suffered incarceration as under-trial prisoners for unduly long period of time, was acutely felt and treated as entitling them, on principles of equity and justice, to have the whole or some fair portion of such periods remitted or deducted from their sentences. Section 382-B Cr.P.C, fulfils that need".
17. A plain reading of section 382-B Cr.P.C, would show that the Court passing the sentence of imprisonment on an accused for an offence shall take into consideration the period if any, during which such accused as detainee in custody for such offence. The words "shall take into consideration" leave no room for doubt that the Court cannot ignore it. It is the bounden duty of the Court to express in so many words that it had taken into consideration the period, if any, during which an accused was detained in custody for an offence and that it is thereafter that certain sentence has been awarded. This would be sufficient compliance of the mandatory provision of section 382-B Cr.P.C. But in a case as the present one, where the trial Judge has not at all adverted to this provision of law and had not taken into consideration the period which the appellants had undergone in custody, as under-trial prisoners, the Appellate Court would be competent to take into consideration the period during which the appellants were detained in custody for such offence as under-trial prisoners. Since the trial Judge has not taken into consideration such period, we would 'direct that the appellants would be entitled to the benefit of section 382-B Cr.P.C.
18. In view of what has been discussed above, we would maintain the convictions and sentences of appellants Daraz Khan and Mir Qad Ayaz under section 307 read with section 34 of the Pakistan Penal Code and 13 Arms Ordinance. We would also sustain the convictions and sentences recorded against Daraz Khan, Mir Qad Ayaz and Khitab under section 353 read with section 34 P.P.C. The appeal of Khitab appellant against his conviction and sentence under section 5 of the Explosive Substances Act, 1908 is, however, partially accepted. The appeal of Habib Khan and Umar Khan appellants against their convictions and sentences under section 216 P.P.C, read with section 34 P.P.C, is also accepted. Both of them shall be set at liberty forthwith if they are not required in any other case. Appellants Daraz Khan, Mir Qad Ayaz and Khitab shall also be entitled to the benefit of section 382-B Cr.P.C.
19. By our short order dated 27-3-1990, we had partially accepted the appeal filed by the appellants in the above terms. The above are the reasons for our doing so.