' IBADAT YAR KHAN, J.--- The appellants have filed this appeal against the judgment of the learned Additional Sessions Judge, Kandiaro, dated 12-12-1989, whereby the learned Judge has convicted them under section 17(1) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and section 323, P.P.C. Each one of the appellants has been sentenced to suffer R.I. For three years and ten stripes under section 17(1) of the Ordinance and to suffer R.I. For six months each under section 323, P.P.C. The sentences on both counts are ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Has also been given to all the appellants.
2. Hakim Ali and his brother Ubaidullah, who had purchased a new Honda Motorcycle a day before were enjoying a ride in the morning of 30-8-1988 on the link road in Taluka Kandiaro. At about 8-00 a.m. When they reached Shaheedan Wari Mori they were confronted and waylaid by the three appellants. The three appellants when they confronted their victims were armed with weapons, which they used for overawing and terrifying the complainant. Appellant Allah Bachayo had revolver while appellants Kamil Shah and Manzoor Ali used their Lathis. Hakim All raised cries and quite a number of people who were working in the fields around the scene of incident rushed to the place of occurrence. The robbers were overpowered and were captured on the spot. Hakim All went to the police station and lodged F.I.R. (Exh.8) at about 9-15 a.m. The police reached on the scene, brought the accused/appellants to Police Station Kandiaro. Complainant Hakim All was sent to the hospital in Kandiaro, where he was given a treatment for bruises, abrasions and lacerated wounds and other simple injuries, which were inflicted upon him by the appellants at the time of the scuffle at the place of occurrence. The medical report is Exh.20.
3. During the investigation the police had recorded statments of quite a number of witnesses who had seen the occurrence, had captured the accused and had made statements under section 161, Cr.P.C. The important feature of the case is that some of the witnesses have changed their minds and have made obliging statements in favour of the accused. It is remarkable that in spite of their reprehensible conduct neither these witnesses were declared hostile and cross-examined by the prosecuting counsel nor the learned trial Court cared to probe the matter and properly deal with these witnesses. It is further to be observed that the learned trial Court has very leniently dealt with the three appellants and they are let off with a very light sentence in the judgment. We had a mind to issue notice for enhancement of sentence, but as issuing of notice would have caused further delay in the disposal of the case, we have decided to finally dispose of the case on the conviction recorded by the learned trial Court. In our opinion it was a fit case in which learned Judge should have awarded the sentence commensurate to the seriousness of the crime and should have also examined whether the provision of section 382-C, Cr.P.C. Could be applied. Section 382-C runs as under:-- "382-C. Scandalous or false and frivolous pleas to be considered in Passing sentence.-- In passing a sentence on an accused for any offence, a Court may take into consideration any scandalous or false and frivolous plea taken in defence by him or on his behalf."
4. The main witness in the case is P.W.1 Hakim Ali who lodged the report in the police station just after the incident. He narrates the event in his statement in Court in the following words:- "About one year ago the incident took place. My brother Ubaidullah had purchased new motor- cycle and I was trying it (Rawan) at about 7 a.m. On the link road leading to Shahidan Ji-Mori. I was all alone at that time. The Allah Bachayo, Manzoor and Kamil Shah came from in front of me. They waived hand to stop me. I stopped my motor-cycle. The accused Kamil Shah had Lathi, while accused Manzoor had also Lathi and the accused Allah Bachayo had revolver/pistol. The accused persons attacked me with L.Athis and Allah Bachayo fired at me. I raised cries on which the persons from nearby land gathered there. Among the P.W. Ali Muhammad and Ismail were there and came there. Gul Muhammad and Razzak ran away seeing the P.Ws. And others approaching them at Wardat but we captured the accused persons there, then the police reached there. Then the police took the 3 accused persons and myself, P.Ws. All Muhammad, Ismail, Razzak (Razo Muhammad) and Gul Muhammad to Police Station Kandiaro. I filed the F.I.R. Of the incident which was recorded there. I put my L.T.I. On it. I produce the F.I.R. Exh.8 and say that it is same, correct and bears my L.T.I.
All the 3 accused now present in the Court are the same."
5. The other witness is Ali Muhammad (P.W.2), who has gone more than half way to support the prosecution case although on the point of identity he has tried to extend his benevolence to the accused by stating that:- "As the 3 accused persons were all covering their full faces with clothes, hence I could not identify any of the 3 accused persons who were captured by us as the police immediately reached and asked us to go away from there."
' This cunning witness wants us to believe that although he reached the place of occurrence immediately with so many other witnesses and was one of the persons, who have captured the accused there and then and kept the accused in their custody and control for quite some time till the police had arrived and had also seen the police taking the accused in police vehicle to the police station yet the veil on the faces of the accused had all the time remained and this witness could not have the benefit of looking at the face of either of the accused. This witness was neither cross-examined by the accused nor by the prosecutor to bring home the fantastically absurd parts in the story narrated by him in Court.
6. The third witness is P.W.3 Muhammad Ismail. He also seems to have been won over by the appellants and has given a very shaky statement. Nevertheless, he admits the occurrence and his presence. He makes a very amusing statement as would be evident from the following passage:-- "I know complainant and P.W. Ali Muhammad. About 8/9 months ago the incident took place. I and my haris Gahi Khan and others were sitting at the Tube-well at about 9/10 a.m. I saw that on the link road about 150 persons had collected and other was minor (Shakh) in between me and the link road. I crossed the minor and reached there and saw that police persons had already reached. The police did not allow me to reach near them. I do not know as to why the persons had collected there, and as to why police had come as police did not allow me to go there. I did not know in this case as police went from there and I came to my tube-well. Police asked my name and obtained my signature on some white blank paper. I did not see any of 3 present accused persons at the palace of Wardat on that day. I did neither capture any of the present three accused persons nor I saw any of these three accused persons armed with pistol or Lathis or firing at the complainant at the place of Wardat on the day of incident."
7. Again we note that no effort was made by the prosecutor to declare the witness hostile to hammer out the truth by cross-examining him.
8. P.W.4 is Abdul Razzaq. This witness has also admitted that the incident had taken place, that he had seen the police and the crowd on the road. After admitting this he clearly closed his eyes from the scene and states that he knows nothing about it any further. He was also not cross-examined by the accused or the prosecutor.
9. P.W. Haji Mahmood and P.W.6 GuI Muhammad are two out of a bunch of untruthful and unconscionable witnesses. Each one of them was questioned by the Court about his daily usual religious performance and had answered that he had never spoken lie and was enjoying good reputation, yet their testimony is bristling with mischief and projecting an image unworthy of a true Muslim. They all admit the occurrence of the event, gathering of the crowd, their presence on the scene of occurrence and arrival of the police, yet they have made an effort to save the accused/appellants by different tricks.
10. Another witness of above class is P.W.8 Ubaidullah who was a Mashir of Exhs.13, 14, 15 and 16. He admits his signatures on these Mashirnamas but disowned the contents and says that he had signed on some "blank white papers". None of the above four witnesses have been declared hostile by the prosecutor and for obvious reasons none of the four witnesses have been cross-examined by the defence counsel.
11. P.W.9 Khair Muhammad is Inspector C.IA. Shakarpur and the Investigating Officer in this case. He has made a very exhaustive statement in Court. His statement when read alongwith the statements of the prosecution witnesses leaves no doubt in the mind of any saner person either about the truth of the occurrence or about the identity of any of the three accused/appellants. A very clean and sharp picture emerges when all these statements are read together. Extracts from the statement of this I.O. Can profitably be reproduced below:-- "I saw that the P.Ws. Were sitting there and they had already captured the accused Allah Bachayo, Kamil Shah and Manzoor Ali. They produced all the three accused persons to me. I took the custody of all the accused persons Allah Bachayo, Manzoor and Kamil Shah from the P.Ws. Muhammad Ismail, Ali Muhammad, Abdul Razzak and Gul Muhammad Mangrio and others. Then I conducted the search of all the three accused persons individually after securing the Revolver of the accused and robbed motor-cycle and two Lathis from the P.Ws. On their production. I demanded the licence of the Revolver of .32 bore which was allegedly secured by the P.Ws. From the accused Allah Bachayo and produced to me by the P.Ws. The accused Allah Bachayo disclosed that he was having with him revolver without licence. On personal search of accused, I secured 11 live bullets on Pata from the possession of Allah Bachayo. The secured revolver was given a smell of fresh discharge. I arrested all the three said accused persons on their production by the P.Ws. I prepared such Mashirnama of arrest, recovery of revolver and Lathis and live bullets with Pata and robbed motor-cycle in presence of Mashirs Haji Mahmood and Ubaidullah Mangrio. I see Exh.13 and say that it is same, correct and bears my signature. I recorded the statements of P.Ws. Ali Muhammad, Ismail, Abdul Razzak and Gul Muhammad under section 161, Cr.P.C. Then I brought all the three accused persons to police station alongwith secured crime weapons alongwith robbed property in presence of D.S.P.-Abdul Razzak who had reached the place of Wardat during my Carvai at the place of Wardat. I prepared memo. Of injuries of injured complainant Hakim Ali in presence of abovesaid Mashirs. I see Exh.16 and say that it is same correct and bears my signatures. I secured photo copy of the receipt of purchase of motor-cycle after seeing the original with the complainant under Mashirnama in presence of above-said Mashirs. I see Exh.15 and say that it is same correct and bears my signature. Then I referred the injured to M.O. Kandiaro for treatment and certificate."
12. The three appellants were examined by the learned trial Judge under section 342, Cr.P.C. To all the questions put to them they answered "No Sir" without elaborating the implication of these two words. In answer to Question No,7 as to what else he wants to say appellant Allah Bachayo gave the following statement:-- "I am innocent. I have been implicated by S.H.O. Khair Muhammad Chandio as I had made applications against him when he was S.H.O. At Tharushah Police Station. Due to that enmity I have been challaned in this false case. I. Have not caused any injury to the complainant and nothing has been recovered from myself."
' He refused to produce any witness in his defence. The other two accused/appellants had not even that much to say. According to them they have been implicated falsely by Khair Muhammad because they happened to be friends of appellant Allah Bachayo. Neither any copy of this complaint alleged to have been made by them against the S.H.O. Has been filed nor the nature of allegations made in this complaint have been disclosed. The S.H.O. In his statement has totally denied that any such complaint had ever been made against him at any time. Further, this plea seems to be very flimsy. If there was any ring of truth in this allegation Khair Muhammad, Inspector, would have settled the score while he was S.H.O. Of that area. It does not stand to reason that he would now implicate them when he is no more the S.H.O. Of that area and happened to be incharge of Police Station, Kandiaro, where the accused had been captured red-handed.
13. We have heard the arguments of the learned counsel for the appellants. The more he emphasised on the statements of won-over witnesses, the more were we convinced that the accused/appellants were guilty of the crime of day daring Highway robbery. The statements made by P.Ws. Simply indicate that appellants wield influence through which they have tried to win over these witnesses and now want to rely on their testimony. The quantity and quality of the evidence in this case is adequate to reach a conclusion from any standard and the crime is conclusively proved against each one of the appellants. The conviction is well-deserved except that the sentences awarded to them arc very lenient. There is no merit in this appeal and we dismiss it without any hesitation.
14. Before parting with this case we once again mention that the learned trial Judge has been very lenient in awarding sentences and it was a fit case in which some action should have been taken against the untruthful witnesses, who had made obliging statements to provide a shield to the three appellants either under some allurement or under some coercion. Such witnesses must be prepared to face the consequences of providing a shield to the offenders in such crimes if the society is to be relieved of the terror such offences have created.