This is an appeal against the judgment of learned Additional Sessions Judge, Jacobabad convicting the appellant for an offence ` under section 394 read with section 397, P. P. C. And sentenc--ing him to undergo R. I. For 7 years and to pay a fine of Rs. 1,000 or in default to undergo R.
I. For one year and further convict--ing him for an offence under section 19-E (now section 13(d), Arms Act) and sentencing him to undergo R. I. For one year ordering the sentences of imprisonment to run concurrently.
2. The complainant Mehar and injured Kehar are brothers. At the time of this incident they, lived near Chatanpati for the purposes of grazing cattle and cultivating land. Thagman, Behram and Sohbat as well as Abdur Rahman and Dhani Bux also lived there in the houses close to the house of the com--plainant and his brother. On the night of incident, that is, the night between 14 and 15 August 1963, the complainant had gone to Nasir Muhammad Jakhrani in Khandoo village while Kehar was in the house. At about mid-night Kehar woke up on the noise and found four thieves driving away his bullocks. One of them was armed with a gun. Kehar challenged the thieves and approached the thief who was armed with a gun and the thief fired at Kehar which hit him on the right leg. Kehar raised alarm which brought Sohbat Behram, Abdur. Rahman and Dhani Bux. Kehar grappled with, the thief who had fired the gun-shot and on the arrival of the witnesses he was captured while the remaining three thieves ran away leav--ing behind the bullocks. During this struggle the thief was also, given injuries. He was the present appellant and was not, known to the witnesses. He disclosed his name as Menglo Jakhrani. The gun was seized from him. Kehar and the appellant were taken to Jhatpat Police Station. In the meantime Abdur Rahman and Dhani Bux went to the complainant and related the incident to him. On this information the complainant returned to the house and found that his brother and the appellant had already been taken away to Jhatpat. He, therefore, also went there and found them there. He then lodged report with Levi Police and then went to Nasirabad where he filed the complaint Exh. 4 in the Court of S. D. M., Nasirabad Kehar and the appellant were sent to the hospital. After usual investigation the appellant was challaned. He proclaimed his innocence and pleaded that he was carrying money in order to purchase cattle and when he passed by the village of the com--plainant he found Kehar, Mehar Bangu, Saleh and Sharif standing on the road and they robbed him of the money and injuries were inflicted upon him on account of previous enmity. Accord--ing to him it was bi-pehri and Mehar had a gun while others had hatchets and lathis. He also alleged that he was declared Karo by witness Sohbat with his daughter. No witness in defence was examined.
3. The learned Additional Sessions Judge on the assessment of the evidence found the appellant guilty of the charge which had been framed against him and he was convicted and sentenced as above.
4. Before I proceed to consider the merits of the allega--tions against the appellant I would like to say that the learned Additional Sessions Judge had committed irregularities. The first irregularity is that the charge in this case which was framed is defective. The appellant was charged that he along with three others armed with deadly weapons attempted to commit robbery of two bullocks belonging to Kehar and caused grievous hurt by gun shot at him which offence according to the learned Sessions Judge fell under section 394 read with section 397, P. P. C. Apparently the charge under section 397 is not sustainable in view of the allegations in the charge that the appellant attempted to commit robbery. Section 397 applies to a case where the offender uses deadly weapons or causes grievous hurt to any person etc., at the time of committing robbery or dacoity.
In the present case the allegation is that the appellant attempted to commit the robbery and, therefore the case will fall under section 398, P. P. C. Which prescribes the punishment for the attempt of committing robbery or dacoity when the offender is armed with any deadly weapon. It seems that the learned Additional Sessions Judge did not go through the provisions of Sections 397 and 398, and, therefore, committed an irregularity which is material and vitiates conviction under section 397, P. P. C. If the learned Additional Sessions Judge bad taken pains to refer to the provisions of section 397, P. P. C. It would have been clear to him that this section was in-- applicable and the proper section would have been section 398, P. P. C.
5. The other irregularity committed by the learned Additional Sessions Judge is that he did not frame the points which arose for determination in the present case as required by section 367, Cr.
P. C. Of course in the present case this may not vitiate the judgment as points which had to be dealt with had been appreciated by the learned Additional Sessions Judge and he had dealt with the evidence accordingly, but the points for determination should be invariably framed.
6. Taking up the merits of the case the prosecution relied upon the oral testimony of the witnesses coupled with the fact that the appellant was captured at the spot. The first witness is the complainant Mehar who was not an eye-witness nor he was in the village on the night of the incident. He had gone to Khandoo village where he was informed by Abdur Rahman and Dhani Bux about the incident. He returned to the village and finding that his brother and the appellant had been taken to Jhatpat; he proceeded to Jhatpat and found them there. Thereafter the report was lodged by him. In his evidence he stated that Abdur Rahman and Dhani Bux told him that Kehar and Sohbat wake up on hearing some sound in the house and found three thieves who had not yet removed anything and when they went there the thieves were challenged. The appellant Menglo fired at Kehar and injured him and other thieves ran away while the appellant was captured by Kehar and Sohbat along with his gun. Similarly he stated in the first report that 4 robbers entered the house forcibly with the intention of com--mitting robbery but when they entered the house there was commotion and in order to chase them several persons ran after them and during this chase Kehar was injured by the gun shot fired by the appellant and he was caught.
7. Kehar is the principal witness in this case. He stated that he was sleeping in the house when he woke up on sound of the movements of the bullocks and saw four persons driving away his bullocks. He challenged them and caught hold the thief who was armed with a gun and he was the present appellant. When he was at a d1stance of about 8 or 10 paces from the appellant a gun shot was fired by the appellant hitting him on the right leg. Sohbat, Thagman and Behram were attracted by the alarm which he bad raised and he grappled with the appellant who was captured with the assistance of the persons who arrived. The appellant was not known to him before. He further stated that the thieves had left his bullocks at the time when he grappled with the appellant.
8. The third witness is Sohbat who stated that he heard the cries of Kehar and went running to his house and found Kehar grappling with the appellant and he had received the gun shot injuries.
According to him the other three thieves left the bullocks and ran away. He joined Kehar in catching the thief who was not known to him. The appellant also sustained injuries caused to him by Kehar.
Then the appellant and Kehar were taken to Jhatpat Levi. The fourth witness is Behram who heard the cries of Kehar and went cunning. Sohbat was already there and he found Kehar sitting over the appellant and fighting with him. Kehar had received the gun shot injuries and the appellant was already caught by Sohbat and Kehar and .He joined them in tying the appellant who was not known before the incident. The witness does not speak of either the theft of the bullocks or the presence or escape of the remaining three thieves. The fifth witness is Nasir Khan who supported the complainant about his visit. He further stated that Abdur Rahman came and told the complainant that his brother was injured by gun shot and one thief had been caught. So Mehar left with Abdur Rahman.
9. The, sixth witness is Abdur Rahman who had also gone on the report of the gun shot and had seen Kehar lying injured while Sohbat, Thagman and Behram holding the appellant. He was informed by them that the appellanf was caught by them while he was committing theft of the bullocks of Kehar. The gun was also recovered from the appellant and he was then sent to Mehar to whom he related the incident.
10. The seventh witness is Mr. Gulzar Hussain Naib--Tehsildar to whom the complaint was made by the complainant as well as the report of the incident was sent by Hebat Khan, Jamadar. He recorded the statements of Kehar and the appellant and sent them to Jacobabad Hospital as they had injuries and there was no arrangement for treatment in Jhatpat Dispensary. He submitted his report to S. D. M. For further investigation as he was not empowered to do so. So the further investigation was carried on by Mr. Muhammad Akbar Jaffer. The report which was sent to him by Hebat Khan Jamadar is Exh. 12 and it was lodged by one Mengal son of Mithan caste Bugti Marhata.
At tlik stage it may be pointed out that this Mengal is different from me appellant althougi1 their names as well as their fathers' names are same but their castes are different. The appellant is Jakhrani by caste while that Mengal is Bhugti Marhata by caste.
11. The 8 witness is Dr. Fazal Ahmad who had examined Kehar and the appellant. Kehar had two injuries; one was a contused round and the other an abrasion. According to the doctor the contused wound was a fracture and was caused by a gun shot while the abrasion was caused by rubbing against some rough substance. Menglo had 8 injuries out of them 5 were incised wounds caused by a sharp weapon such as hatchet while the remaining three were caused by a blunt weapon such as lathi. Two of the incised wounds were grievous in nature. The last witness is Hebat Khan Jamadar Levi Police at Jhatpat to whom the appellant and Kehar were brought in a bullock cart at night by Behram and Sohbat Bugtis, lie took the parties to the Naib-Tehsildar and handed over to him for further, investigation with a report Exh.
12. In the cross---examination he stated thatth he had visited the spot next day and that spot was situated at a d1stance of 500 or 600 paces from the house of the appellant. He further stated that Mithoo father of the appellant also came to him and lodged report and he referred him to Naib-Tehsildar.
12. This is the entire prosecution evidence. So far the appellant is concerned he stated in the committal proceedings that he was passing by the road to purchase cattle from Shah Ghazi at bipehri time when Kehar, Mehar, Karim Dad and Bangul and others detained him and robbed him of Rs. 600 after causing injuries to him with hatchets. He further stated that Mehar was armed with a gun who fired at him but the shot hit Kehar. He also produced the first report Exh.20 lodged by his father with regard to robbery of Rs. 600 from him as well as the, injuries which had been caused to him and the injuries sustained by Kehar by a gun shot fired by his com--panions. In the Sessions Court he repeated his earlier state--ment but added two more names, namely, Shari and Shahbaz who had joined others in robbing him and further he stated that he was carrying Rs. 800 which were robbed from him. He further stated that no action was taken by the S. D. M. On the report which had been lodged by his father.
13. From the resume of the evidence there can be no manner of doubt that the appellant.
Accompanied by other persons had gone to steal the bullocks of the complainant and his brother.
The prosecution evidence which has been led in this case stands un-assailed and cannot be excluded from con--sideration. The appellant was captured at the spot. His explanation that he was passing by the road when he was captured and was robbed of the money cannot be accepted. The enmity alleged by him has not been established. According to the prosecu--tion evidence the appellant was not known to the witnesses and, therefore, the question of enmity did not arise. The appellant was caught at dead hour of the night and he failed to explain his presence at the scene of crime. It is ridiculous that the appellant without being known would be captured by the witnesses simply because he happened to pass by their village.
14. However, the question which needs consideration is whether the' charge under section 394 read with section 397, P. P. C. Is sustainable. I pointed out at the outset that in this case the appellant was charged for attempting to commit robbery and, therefore, section 397 was inapplicable. There remains the question of section 394, P. P. C. And to hold the appellant guilty of this offence it must be established that there was an attempt to commit robbery in view of the charge framed against the appellant. Robbery is defined by section 390, P. P. C. Which lays down that theft is robbery if, in order to the committing of the theft, or in carrying away' or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear or instant death or of instant hurt, or of instant wrongful restraint. Thus to set out robbery there must be theft and simultaneously the element of force or violence must also be present for that purpose. The words "for that end" are material and, therefore, the mere use of violence will not convert, the offence of theft into robbery unless the violence be com--mitted for one of the ends specified in this section; in other words the violence must be used in order to the committing of theft, or in committing the theft or in carrying away or attempting to carry away the property obtained by theft. Any hurt if caused independent of that end will not be sufficient to constitute the basis of robbery.
15. In order to determine this the prosecution evidence lacks the necessary proof. There is no agreement among the witnesses relating to the question of theft and the evidence is not immune from disbelief and, therefore, is in-conclusive. Of course Kehar who is the star witness of the prosecution and was sleeping in the house when the alleged incident took place stated that when he woke up on the sound he found four thieves out of them three were driving the bullocks while the fourth who was subsequently found to be the present appellant was carrying a gun and was following them and when he tried to approach the appellant a gun-shot was fired by him and he was injured and thereafter he grappled with the appellant and held him tight. He further stated that the other three, thieves had left his bullocks at the time when he grappled with the appellant.
Sohbat who arrived immediately at the scene of crime supported the complainant to the extent that he saw Kehar grappling with one thief and received the injury by a gun-shot and the other three thieves left the bullocks of Kehar and ran away. Behram does neat say anything about the bullocks or the presence void escape of the remaining three thieves. He had only found the appellant having been already caught by Kehar and Sohbat. He also does not say whether he was informed about the theft of bullocks or there were some other thieves. Abdur. Rahman who arrived a little later was informed that the appellant was caught while he was committing theft 1 of bullocks. The complainant who was subsequently informed about this incident by Abdur Rahman stated that Abdur Rahman and Dhani Bux came to him and informed him that Kehar and Sohbat woke up on hearing some sound in the house and found three thieves who had not yet removed anything and after they were challenged one of the thieves fired at Kehar.
From this statement it cannot be established that either there was theft or even attempt to commit a theft. Not only this but when he went to Jhatpat and met his brother Kehar he was not informed that the appellant had removed any of their articles or animals but he was simply told that he got up on hearing the sound in their but and caught hold of the appellant. The evidence of the complainant is corroborated by the com--plaint Exh. 4 which he had lodged. In view of this evidence it is doubtful if any theft of the bullocks was committed or even there was any attempt to commit a theft. This evidence on the contrary indicates that before the thieves made any attempt to steal the bullocks Kehar woke up and on the alarm raised by him the thieves abandoned the intention of committing theft and took to their heels, but they were pursued and after the exchange of injuries the appellant was captured. This conclusion is supported by the evidence of Hebat Khan Jamadar who had gone to the scene of crime when the matter was reported to him. His evidence reveals that the spot where the fight had taken place was at a d1stance of 500 or 600 paces away from the house of Kehar. So even if it be assumed that the appellant and his companions had stolen the bullocks but since they had left the bullocks on the alarm which was raised by the complainant party and took to heels the subsequent firing of the gun-shot by the appellant in order to prevent the pursuit would not convert the original theft into robbery, as this hurt was not caused for one of the ends contemplated by sec--tion 390, P. P. C. Consequently the conviction of the appellant for an offence under section 394 cannot be sustained.
16. However, it has been established that the appellant had caused grievous hurt. In view of this and the charge which was framed the question arises whether the appellant can be convicted for an offence under section 326, P. P. C., although he was not specifically charged. The answer to this must be in the affirmative in view of the provisions of section 237, Cr. P. C. The appellant could be charged for an offence under section 326, P. P. C. Although the appellant was not specifically charged for an offence under section 326, P. P. C. But it was clearly stated in the charge that he had caused grievous hurt by gun shot. So it also cannot be said that the appellant was in any manner misled while facing the charge or any prejudice would be caused to him in proceeding to convict him for that offence. So the conviction should be altered from section 394 read with section 397, P.
P. C. To section 326, P. P. C.
17. The appellant was also convicted for an offence of being armed with an un-licenced gun and cartridges. This conviction cannot be interfered with. The gun and cartridges were recovered from his possession when he was captured and was also produced before the Jamadar as well as the Naib--Tehsildar. The appellant admittedly holds no licence.
13. In the result the conviction of the appellant for the offence under section 394/397, P. P. C. Is altered to one under section 326, P. P. C. And he is sentenced to: undergo R. I. For three years. The conviction and sentence of the appellant under section 19-E, Arms (section 13(d) of West Pakistan Arms Ordinance) is maintained. With this modification the appeal is dismissed. The sentences should run concurrently.