' JUSTICE SHAFIUR RAHMAN (CHAIRMAN).---Muhammad Arif, a sole convict under sections 392, 397 and 302, P.P.C., has appealed against the judgment of Special Court for Speedy Trials, Rawalpindi Division/Islamabad Capital Territory/Lahore, dated 21-6-1992.
2. The prosecution case against the appellant and his 'associates/co-accused was that Rehmat All (P.W.7) had a sister Mst. Rashida (not produced) married to Ghulam. Habib (P.W.8) and they had two sons Zafar Iqbal (P.W.9) and Nasar Iqbal (deceased in the occurrence). The daughter of Rehmatullah (P.W.7) was already engaged to Nasar Iqbal (deceased). In order to get a date of their marriage fixed, he had gone to the house of his sister and stayed there for the night between 10th and 11th of December, 1991. At about 2-15 a.m. In the night i.e,, on 11-12-1991, he heard cries and noise in the courtyard of the house and rushed there. He found there the appellant alongwith three other persons beating his sister Mst. Rashida with fists and blows and insisting that she should produce all the valuables that she had. All the four persons so engaged he identified; Arif Butt who had a .12 bore gun, Yasin absconder who was armed with a pistol, Shabbir who had a Chhurri and Shafi who had a pistol. Ghulam Habib (P.W.8) also came out and asked the assailants not to do any harm and brought out a bag (P.7) containing Prize Bonds of various denominations and currency notes and handed over the same to Yasin absconder. Nasar Iqbal (deceased) and Zafar Iqbal (P.W.9) also appeared on the scene. Nasar Iqbal caught hold of Yasin absconder on which the appellant fired with his .12 bore gun, hitting Nasar Iqbal. Ghulam Habib (P.W.8) advanced to catch hold of Shabbbir but the latter gave a number of Chhurri blows to him. Shafi aimed a shot at Ghulam Habib (P.W.8) which hit Shabbir. Shabbir also gave a Chhurri blow to Zafar Iqbal when he tried to intervene. Yasin absconder fired three shots with his pistol one of which hit Zafar Iqbal and two hit Shafi. Shabbir and Shafi fell injured in the courtyard. Yasin and the appellant managed to escape, taking the bag of currency notes and prize bonds on the roof top where it was left.
3. After the occurrence was over, it was found that Nasar Iqbal had died of the injuries. Ghulam Habib (P.W.8) and Zafar Iqbal (P.W.9) were sent to the hospital as they were injured. Shabbir and Shafi co-accused of the appellant had received injuries and were lying in the courtyard. Leaving them there, Rehmat Ali (P.W.7) went to the Police Station Factory Area, Sargodha and lodged a report about the occurrence at 2-45 a.m. It was recorded by Muhammad Anwar Rana (P.W.15) who came to the spot at 3-15 a.m. He found the two injured accused $habbir and Shafi lying in the courtyard. He attended to dead body of Nasar Iqbal and injured Shabbir and Shafi and despatched the injured to the hospital. He carried out the investigation in which Yasin was found to be absconder and Arif/appellant was arrested on 15-12-1991, and gun P. 20 was recovered from him which matched with the empty recovered from the spot.
4. Dr. Sohail Amjad (P.W.12) examined the same night (11-12-1991) at 3-15 a.m. Ghulam Habib for his injuries, at 3-15 a.m. Zafar Iqbal for his injuries and at 5-35 Muhammad Shall for his injuries. He found seven incised injuries on the person of Ghulam Habib (P.W.8). Zafar Iqbal (P.W.9) had one incised wound, one lacerated wound and one fire-arm wound with blackish margin having multiple fire-arm exit wounds. Muhammad shafi had two abrasions and two fue-arm entry wounds on his person. He died on 1-2-1992 of the injuries and his autopsy was performed by Dr. Muhammad Aslam Chaudhry (P.W.11). Dr. Muhammad Khalid Akhtar (P.W.10) had performed the autopsy of Nasar Iqbal on 11-12-1991 at 10-15 a.m. And found nine forearm entry wounds and five exit wounds on his person. Shabbir, the co-accused of the appellant who died of the injuries had also on his person two abrasions and two fire-arm entry wounds according to Dr. Muhammad Khalid Akhtar (P.W.10).
5. At the trial, Rehmat Ali (P.W.7), Ghulam Habib (P.W.8) and Zafar Iqbal (P.W.9) -- the two injured, were produced as eye-witnesses of the occurrence. Mst. Rashida who had the first encounter with the accused was not produced. Recoveries from the spot in the form of empties and chhurri (P.12) and the bag and the currency notes and prize bonds from the roof top were witnessed by Muhammad Rashid (P.W.14). He was also a witness to the arrest of the appellant and recovery of .12 bore gun from him.
6. The appellant alone was made to stand his trial as his companion Yasin was declared as an absconder and was not available at the trial. His other two associates were injured and died of the injuries received in the occurrence. He denied his participation or presence at the time of occurrence. He pleaded his false implication in the case. He gave an elaborate oxplanation for his involvement and gave a counter-version of the case as hereunder:-- "I have been falsely involved in this case. I was not present at the place of occurrence at the time of occurrence. I was later on arrested by the police on 14-12-1991, from Gujrat from the house of Muhammad Ashraf, husband of sister of my wife. I had gone there as my, mother-in-law had an operation. Later on, after my arrest, one of my relatives contacted Shafi (deceased accused) who was admitted in the hospital in injured condition and who had told my relatives that in fact he (Shafi deceased) and Sheero (deceased accused) had gone to the house of Nasar deceased and were gambling on cards. Sheero (deceased accused) kept on winning and there late at night when they were sitting inside the room of Nasar Iqbal deceased, a quarrel took place between Nasar Iqbal deceased and Sheero (deceased accused) and Nasar Iqbal deceased took out a pistol and started firing. Zafar Iqbal injured P.W. Brought a Chhurri and started giving Chhurri blows.
Sheero (deceased accused) fired with his fire-arm. Ghulam Habib P.W., came there alongwith a danda and started giving danda blows on Sheero's head and also injured him, who later on succumbed to his injuries in the hospital, due to these injuries. Rehmat Ali P.W. Was not present at the spot and later on story of his presence has been concocted to save injured Ghulam Habib and.
Zafar Iqbal from murder case. It was also informed by Shafi (deceased accused) to my relative that I am being involved in this case as Sheero (deceased accused) had told the persons present there that he borrowed money from me (his neighbour). The gun P-20 has been planted on me and after preparing empties, it was later on sent to the fire-arm expert, and obtained positive report."
7. The Trial Court after examining the evidence and other material brought on record came to the following conclusion:- "The statements made by the P.Ws. Have already been found confidence inspiring and excepting minor contradictions and discrepancies here and there, nothing has been brought on record by the defence that P.Ws. Have made dishonest improvements in their statements. The occular testimony is in confirmity with the medical evidence and is also corroborated by the factum of recoveries. The accused Muhammad Arif was previously known to the P.Ws. 7, 8 and 9 and they have no motive whatsoever to falsely involve him in the present case. The statements made by P.Ws. Are confidence inspiring and an implicit reliance can be placed on their testimonies."
' The medical evidence was found to be in conformity with the ocular testimony and the recoveries were also found to be established.
8. The learned counsel for the appellant in assailing the prosecution case, the conviction and the sentence of the appellant, has taken up the following grounds:--
(1) The defence version put forward by the appellant was equally, if not more, plausible and consistent with the material on record than the prosecution case. The benefit of doubt, therefore, should have been extended to the appellant as is the requirement of safe administration of criminal justice.
(2) The recovery of the .12 bore gun and its use in committing the crime and matching of the empties is all doubtful because the gun after its recovery, was kept by the Investigating Officer with himself from 15th to 18th of December, 1991 and the empties were sent for expert's opinion after three days of the gun having been recovered. The expert's opinion with regard to the matching of the empty recovered from the spot does not give that description of the gun which is given in the F.I.R. And the occular evidence that its Butt and barrel had marks of damage.
(3) The accused was not directly and specifically questioned with regard to the matching of the empty recovered from the spot with the gun allegedly recovered from the appellant.
(4) It appeared from the evidence that Ghulam Habib (P.W.8) had a licence for 7 mm gun and Zafar Iqbal had the licence for a .12 bore gun. These licensed weapons were not taken into possession during the course of the investigation and their recovery would have established their use during the course of the occurrence and would have lent strength to the defence version.
(5) In effecting the arrest of the appellant and making the recoveries from him no independent witness of the locality was associated and this made the arrest and the recovery both doubtful.
(6) According to the prosecution evidence Shafi (deceased accused) had used a pistol but no effort was made to recover that pistol or to prove its disappearance from the scene of occurrence.
(7) The medical evidence produced at the trial is inconsistent and uninspiring. The fire-arm injuries on the person of Nasar Iqbal show that they had inflammation which would not be possible, according to the expert opinion, when the injury is caused from a distance of 10 ft. Or so. The learned counsel has taken inflammation to be same as blackening and scorching. It is also contended that Shabbir's injury having blackening and scorching could not be caused in the manner in which it was allegedly caused.
(8) Mst. Rashida Bibi who had the first encounter with the accused was not produced. She was an important witness in an ordinary crime of robbery where the culprits were known and they had taken caution and were muffling their faces and not disclosing their identity. The fact that the accused, according to the prosecution version, were known would make the defence version more plausible.
(9) The Prize Bonds and the cash having been removed could not be left on the roof top.
9. In this case the most formidable evidence against the appellant and his associates is the statements of the three eye-witnesses, two of whom are injured. The occurrence having taken place at about mid-night, they would be the natural witnesses also. There being no background of enmity, illwill or hostility between the complainant and any of the accused including the appellant, there could be no question of enlarging scope of the charge implicating falsely or making out a case of robbery where none had taken place. The other factor providing strength to the prosecution case is the recovery of two injured from the courtyard of the complainant family at that late hour of the night with injuries on their person. If they alone were involved in the incident whatever its nature, there could be no occasion whatsoever for the complainant to enlarge the charge to Yasin and the appellant. The defence version would have acquired strength and needed serious consideration if any of the relatives of Shabbir or Shafi had also by a complaint or otherwise reported the counter-version necessitating a cross-case against the complainant. Those who were concerned with the defence version, if at all the defence version was'plausible and a true one, did not come forward to advance it. It cannot be adopted a defence version of the appellant.
10. As regards the recovery of the gun, we find a description of it in the F.I.R., in the statements of the eye-witnesses and also in the recovery memo. The expert report with regard to the matching of the empty was not required to mention in that detail that particular description of the weapon because the the identity of the weapon examined had been fixed by the signatures of the expert put on the Butt of the gun. If the identity of the rifle alone was in dispute, it could be demonstrated in the Court that the gun/rifle having his signature did not conform to the description contained in the F.I.R. Or the recovery memo. That having not been done, this argument will be without appropriate foundation in the record.
11. The dates of recovery of the weapon, making a parcel of it and its despatch to the expert, all are relatable to 15-12-1991 and 18-12-1991. The time spent is not such as may by itself arouse suspicion because after all investigation has to proceed expeditiously at the initial stages at the location of the crime.
12. The occurrence having taken place mostly in the courtyard of the house, the blackening and scorching etc., could consistently be present. Besides, an inflammation relatable to an injury cannot be taken to be blackening or scotelling. It is altogether a different phenomenon.
13. The occurrence having taken place in a manner to kill two out of four accused must have put the remaining two under real threat of their life. In such a situation the option would necessarily have been to save the life and the injured companions rather than the cash.
14. We find that the case against the appellant is fully made out by the ocular evidence coupled with the recovery of the two of the co-accused in injured condition from within the premises of the complainant family. The other details and what the learned counsel considers discrepancies are not such as to diminish the value and consistency of this evidence.
15. On the legal plane we find that the conviction of the appellant under section 392, P.P.C. And 397, P.P.C. Could not be separately and concurrently recorded. Section 397, P.P.C. Being the graver offence would take over and section 392, P.P.C. By itself will not be attracted to the case. Besides, the conviction under section 397, P.P.C. Had to be on two counts because it was relatable to injuries caused to Zafar Iqbal and Ghulam Habib (P.Ws.8 and 9). However, as the accused had no notice, we are not altering that part of the conviction.
16. in the circumstances, the conviction of the appellant under section 392, P.P.C. And the sentence therefor, is set aside but the conviction under sections 397, P.P.C. And 302, P.P.C. And the sentence therefor is maintained. The appeal is dismissed with this modification in conviction and sentence.