' NAZIR AHMAD BHATTI, J.--- Complainant Muhammad Yasin and his wife were asleep in the courtyard of their Haveli on the night of 21-4-1990. At about 11-00 p.m. The complainant got up on hearing noise of a person falling inside his compound. He recognised the said person as accused Bashir and the latter was armed with carbine. Accused Bashir opened the gate of the Haveli whereupon accused Hamid, armed with carbine, accused Liaqat, armed with Sandhaiwa and another unidentified accused, also armed wit'. Carbine, came inside. Accused Bashir and accused Hamid went inside and opened the door of the residential room. The complainant challenged them but they ordered him to keep quiet. After some time accused Bashir and accused Hamid came outside the room and the former was having red colour purse of the complainant containing ornaments. The complainant raised alarm whereupon his father Shah Nawaz was attracted to the spot but the latter was fired at by accused Hamid hitting him on the right side arm. Simultaneously Liaqat Ali and Khizar Hayat were also attracted to the spot but they both were also fired at by accused Bashir whereby Liaqat All was hit on his abdomen and Khizar Hayat was hit on the mouth.
The complainant overpowered accused Bashir and snatched the purse from him but accused Bashir and accused Liaqat All gave him blows with the butt of Carbine and Sandhaiwa. Mst.
Maqsoodan Bibi wife of the complainant tried to rescue her husband but she was also given Sandhaiwa blows on her arms by accused Liaqat, Ali. In the meantime Asghar, uncle of the complainant and other persons were attracted to the spot and in the struggle accused Bashir was also injured but the other accused escaped. Complainant Muhammad Yasin gave a written report of the occurrence to Muhammad Ayub Sub-Inspector of Police Station Lundianwala on 21-4-1990 at 0-35 hours. During investigation it also transpired that Mst. Bahishtan, Mst. Nooran and Muhammad alias Mandu were also present alongwith the other accused outside the Haveli of the complainant. The 4th person who had entered the Haveli of the complainant was subsequently identified as accused Falaksher. Accused Liaqat Ali was absconding. On the same day the complainant recorded supplementary statement under section 161, Cr.P.C. Wherein he disclosed that the unidentified accused mentioned in his first report was actually accused Falaksher.
2. Accused Bashir was apprehended from the spot on the same day by the complainant party and handed over to the Investigating Officer. Accused Hamid was arrested on 30-7-1990 and a carbine was recovered at his instance from the house of accused Muhammad alias Mandu father of accused Falaksher. The latter accused was arrested on 13-8-1990 and a carbine was also- recovered at his instance. At the instance of accused Bashir a carbine was recovered from Baithak of complainant Muhammad Yasin on 25-44990. Accused Falaksher and accused Mst. Nooran are brother and sister inter se and accused Mst. Bahishtan is their mother. It was the case of the prosecution that brother of accused Falaksher was formerly employed by the complainant but he had terminated by his service and for that grudge that accused committed dacoity in the house of the complainant alongwith the other accused.
3. P.W.2 Mst. Maqsoodan Bibi, wife of the complainant, was examined by P.W.8 Dr. Muhammad Akram on 21-4-1990 at about 1-40 a.m. The doctor found the following injuries on her person:--
(1) A lacerated wound 4 x 1/2 c.m. On forhead. It was scalp deep.
(2) A lacerated wound 2-1/2 x 1 c.m. On back of right side of head.
(3) A lacerated wound 2 x 2/3 c.m. On back of head.
' All the injuries were simple and caused by blunt weapon within three hours. The same doctor also examined complainant Muhammad Yasin on the same day at about 1-35 a.m, and found the following injuries on his person:--
(1) A lacerated wound 3 c.m. x 1-1/2 c.m. x bone deep on the right side of head close to forehead.
(2) A lacerated wound 6 c.m. x 1 c.m. x bone deep on right side of head behind the above injury.
(3) A lacerated wound 2 x 1 c.m. x scalp deep 1 c.m. Behind injury No,2.
(4) A lacerated wound 3 x 2 c.m. x scalp deep on left side of head.
(5) A contused swelling 10 x 8 c.m. On back of left forearm. All the injuries were caused by blunt weapon within three hours.
4. P.W.7 Dr. Mubashar Asghar medically examined Shahnawaz on 24-4-1990 and found the following injuries on his person.
(1) A multiple lacerated circular wound 1/4 x 1/4 c.m. Over an area of 20 c.m. x 15 c.m. On the right upper arm and the right side of chest over an area of 25 c.m. x 10 c.m. There was scabes on the wound. There is bluish swelling on the right upper arm.
(2) Contused swelling 6 c.m. x 6 c.m. On left temporal region.
' The injury No,1 was caused by fire-arm while injury No,2 was caused by blunt weapon within a duration of 4 days. On the same day at 12-00 noon the same doctor examined Liaqat Ali and found six lacerated circular wounds each 1 c.m. x 1 c.m. Over an area of 10 x 10 c.m. In the abdomen. The said witness was in serious condition and the injury was caused by fire-arm within 4/5 days. On 26-4-1990 the same doctor examined Khizar Hayat at 10-20 a.m. And found him in the following condition:-- "He was lying with both eyes covered with dressing. On removing dressing there were multiple lacerated circular wounds each of 1/6 c.m. x 1/6 c.m. Each over an area of 10/12 c.m. On the forehead, both eyes, and half of the mouth."
5. Injury was caused by fire-arm within about 4/6 days. According to the report of the eye specialist of D.H.Q. Hospital, Faisalabad Khizar Hayat had lost his vision permanently on left side due to injury which was declared as grievous.
6. All the 6 accused, except absconding accused Liaqat Ali, were sent up for trial before the Additional Sessions Judge, Faisalabad who charged them under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sections 148, 149, 326 and 307, P.P.C. All the 6 accused pleaded not guilty and claimed trial. After the conclusion of the trial the learned Additional Sessions Judge acquitted accused Mst. Bahishtan, Mst. Nooran and Muhammad alias Mandu and convicted accused Bashir, Hamid and Falaksher. All the aforesaid 3 accused were convicted under section 397/34, P.P.C. And each of them was awarded imprisonment for life.
7. Accused Bashir was further convicted under section 326, P.P.C. For depriving P.W.4 Liaqat All of his eye-sight with a fire-arm and sentenced to undergo imprisonment for life and to pay a fine of Rs,10,000 or in default to further undergo rigorous imprisonment for 2 years. Accused Bashir was also convicted under section 307, P.P.C. On two counts and sentenced to undergo imprisonment for life on two counts and to pay a fine of Rs,10,000 on each count or in default to further undergo rigorous imprisonment for 2 years on each count.
8. Accused Hamid was also convicted under section 307, P.P.C. For causing fire-arm injuries to P.W.5 Shahnawaz and was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs,10,000 or in default to further undergo rigorous imprisonment for 2 years. The learned Additional Sessions Judge further ordered that all the sentences of imprisonment were to run concurrently.
9. By the appeal in hand, received from jail, convicts Bashir, Falaksher and Hamid, have challenged their conviction and sentences.
10. It shall be seen that 5 persons were injured by all the 3 appellants during the occurrence. They are P.W.2 Mst. Maqsoodan Bibi, wife of the complainant, P.W.3 Khizar Hayat, P.W.4 Liaqat Ali, P.W.5 Shahnawaz and P.W.6 Muhammad Yasin complainant. P.W.2 Mst. Maqsoodan Bibi and P.W.6 Muhammad Yasin complainant both corroborated the contents of the F.I.R. Both stated that they were asleep in the courtyard of their Haveli on the night of occurrence when at about 11-00 p.m. 2 persons jumped over the wall and opened the door of the Haveli. She and her husband were awakened. Both iddntified them as Bashir and Hamid appellants herein, and both were armed with carbines. Then the other 3 accused also came inside the house and their names were Falaksher, Liaqat All and Muhammad alias Mandu. Out of them appellant Falaksher had a carbine while absconding accused Liaqat had Sandhaiwa They further stated that appellants Bashir and Hamid fired carbine shots at P.W.5 Shahnawaz, P.W.3 Khizar Hayat and P.W.6 Muhammad Yasin and injured them. It also came in the evidence of both these witnesses that they both were injured by absconding accused Liaqat All who dealt Sandhaiwa blows to each of them. P.W3 Khizar Hayat also stated that when he went to the residence of the complainant he found acquitted accused Mst. Nooran and Mst. Bahishtan present outside the house while appellants Bashir, Hamid and Falaksher and absconding accused Liaqat were present inside the house and appellant Bashir fired at him and injured him on the face, both eyes and his eye-sight was destroyed. This witness further stated that appellant Hamid fired at Shahnawaz and hit him on his right arm whereas complainant Muhammad Yasin was given Sandhaiwa blow by absconding accused Liaqat and Bashir gave him butt blow of carbine and he was injured.
11. P.W.4 Liaqat All also went to the house of the complainant on the night of occurrence and accused Bashir fired at him a carbine shot hitting him on the abdomen. This witness further stated that P.W.3 Khizar Hayat was also fired at by appellant Bashir injuring him on his eyes.
12. P.W.5 Shah Nawaz, father of the complainant, was asleep in his Baithak and he heard alarm and went to the Haveli of the complainant where he saw Falaksher, Hamid, Liaqat and Bashir in the courtyard. He further stated that accused Bashir, Hamid and Falaksher had carbines and absconding accused Liaqat had Sandhaiwa. This witness was fired at by accused Hamid injuring him on his right arm when he tried to reach his son who was being threatened by appellant Bashir.
13. It shall thus be seen that 5 persons were injured by accused Bashir, Hamid and absconding accused Liaqat in the courtyard of the Haveli of the complainant. Appellant Bashir injured the complainant with carbine butt and also fired at Khizar Hayat and injured him on his face and his eyes whereby the latter lost sight of one eye and also fired at P.W.4 Liaqat All and injured him on his abdomen. Appellant Hamid fired at P.W.5 Shah Nawaz and injured him on his right arm. It can thus be gathered that appellants Bashir and Hamid were present in the courtyard of the Haveli of the complainant armed with carbines.
14. Appellant Falaksher was not armed with any weapon but his presence inside the courtyard of the Haveli of the complainant has been established because all the 5 prosecution witnesses had stated that he was present there. The learned counsel for the appellants had contended that appellant Falaksher was not present at the spot but in view of the clear and unambiguous testimony of the 5 eye-witnesses his presence has been established at the spot. It had also come in the evidence that brother of appellant Falaksher was employed by the complainant party and the appellant was on visiting terms with the latter. It had also come in the evidence that a short time before the occurrence, the brother of this appellant had been removed from service. Actually this was the reason for the commission of the offence of dacoity in the house of the complainant.
15. The learned counsel for the appellants contended that the appellants had not committed dacoity because no proof in thii respect was found in the house of the complainant. He stated that the goods in the house of the complainant were neither scattered nor there were any traces of search made by any for taking into possession any ornaments and the offence of dacoity had not been proved. This contention loses force when we know that appellant Falaksher was on visiting terms with the complainant party and he had known all the ins and outs of the household goods.
Actually he had briefed the other appellants about the place from where the ornaments could be found. On his instance the appellants went inside the very room where ornaments were lying and brought out the purse which contained the jewellery and the money owned by the complainant.
16. From the evidence which was produced during the trial it had been proved beyond any doubt whatsoever that appellants Bashir and Hamid had committed dacoity with the abetment of appellant Falaksher in the house of the complainant party and during the commission of that offence they had also injured 5 persons. All the latter had directly charged the appellants for the commission of the offence of dacoity and causing injuries to them. So much so that one prosecution witness Khizar Hayat permanently lost one eye as a result of shot fired at him by appellant Bashir, while two other witnesses received fire-arm injuries on arm and abdomen, whereas the complainant and his wife received blunt weapon injuries on different parts of their body. All the 3 appellants are, therefore, guilty of the offence of committing dacoity in the process of which they caused fatal injuries with deadly weapons.
17. The learned Additional Sessions Judge had convicted all the 3 appellants for the offence of dacoity and causing grievous hurt and for attempt to commit murder. We have taken this aspect of the matter into consideration very seriously. Actually the offence committed by the appellants is covered by the provisions of section 395/34 read with section 397, P.P.C. And they could not be legally convicted and sentenced under sections 326 and 307, P.P.C. Separate sentences could not be awarded under the latter two offences. The appellants had caused grievous hurt with deadly weapons in the course of commission of the offence of dacoity and they could legally be convicted for all the offences under section 395/34 read with section 397, P.P.C. And could not be separately sentenced for causing grievous hurt. The learned Additional Sessions Judge appropriately convicted and sentenced the appellants for dacoity which offence would be covered by section 395/34 read with section 397, P.P.C. But the conviction and sentence under sections 326 and 307, P.P.C. Was unauthorised.
18. The net result of the above discussion is that we partly accept the appeal. The conviction of the appellants under section 397, P.P.C. Is converted into under section 395/34, read with section 397, P.P.C. And sentence awarded by the learned Additional Sessions Judge for this offence is maintained. The conviction and sentence of appellant Bashir under sections 326 and 307, P.P.C. Is set aside. The conviction and sentence of appellant Hamid under section 307, P.P.C. Is also set aside. The appellants shall be entitled to the benefit under section 382-B, Cr.P.C.