1. Appellants Pingio Son of Muhammad Saleh. Piaro Son of Saleh, Qassim son of Ghous Bux and Nihal son of Ghous Bux. All Talanis by case, have been convicted by the Additional Sessions Judge, Jacobabad for the offences under section 394 react with section 39", P. P. C. And section 342, P. P. C.
2. And sentenced to 7 years' R. I. Sad a fine of Rs. 500, in default further R. I. For 6 months and R.I. For 6 months respectively. Appellants Pingio and Piaro have been further convicted under section 13-D of the Arms Ordinance and sentenced to R. I, for one year. All the above appellants have appealed against their convictions arid sentences.
3. The facts of the case are that on 20-5-1972 at 6 a. m. In the morning complainant Khan Muhammad appeared at Saddar Police Station, Jacobabad to report incident of robbery committed at his house which was recorded by S. H. O. Shahmir Khan in the following words :- "I am working as Head Mistry of the brick kiln of Haji Lakhmir when Brohi for twenty years, and am incharge of the labourers, working there. I am living alongwith my family in the house standing in the middle of brick kiln.
4. Last night, I alongwith Sher Afzal Pathan, Sarwer, Ghous Bux and Bassar was working at the kiln.
5. Wahid Bux Brohi watchman, Chowkidar was also there at the kiln. These also (sic) at the kilo. I here were five lamps burning round about at the kiln. A lamp was also burning in my house at about 12- 00 o'clock, after giving instructions to the above-mentioned labourers about the work, I retired to bed on the kotha (fiat) of my house. At about 2-00 o'clock of night, I gut up on the barking of dogs and the challenges of the above labourers. I found Pinjo, Qassim and Fiaro Talani armed with guns and Nihal Talani armed with a hatchet who trespassed into my house and soon afterwards, the gunmen fired two aerial shots and warned me to keep quiet. Meanwhile, I alongwith my wife came down from the Kotha and went into the inner room and remained standing after closing the door of the room. Thereupon the accused broke open the door by pushing and intruded inside. Nihal Talani, armed with the hatchet having entered inside, delivered hatchet blow with its back side on my head, but in my warding off the blow it landed ore my right arm and head. Then due to fear of life, I and my wife stood still. Firing shots in air the accused left the house with the below mentioned articles. Then I called Sher Afzal and others, who shouted from the adjacent room. That they had been confined by the accused. I went and took them out from the room. We sent Sher Afzal to inform Huzoor Bux Brohi. Then Huzoor Bux Brohi when and Saleh Muhammad Khan Brohi, came and they were apprised of what had happened. Huzoor Bux when directed me to go and lodge complaint with the police. Now I have come to lodge complaint. Achari be I and the above persons have identified the accused and the light of the lamps as they used to work at the same Kiln before and belong to the same area. I shall identify the robbed articles."
6. After recording the F. I. R., the S. H.O, reached the wardat and started investigation. He secured two empties from the wardat under a mashirnama and examined P.Ws Huzoor bux Saleh and Sarwar.
7. He then went to the house of appellants Qassim, Nihal and Pingio and finding them absent conducted search of their house but recovered nothing. On 21-5-72, he arrested appellants Pingio, Qassim and Nihal and thereafter handed over the investigation to A. S. I. Mohammad Khan who examined P. Ws. Sher Afzal, Ghous Bux and Bassar. On 2-6-1972 he arrested appellant piaro. On 4- 6-72 he examined P. W. Wahid Bux, the Chowkidar at the brick kiln. After completing the investigation, he challaned the accused in the Court of F. C. M. & Civil Judge, Jacobabad who committed them to the Court of Additional Sessions Judge, on the charges under sections 394 read with 397, 342 and section 13-D of the Arms Act.
8. Prosecution in order to prove its case, examined complainant Khan Mohammad. P. W. Wahid Bux, Chowkidar of the brick kiln and P. W. Bassar, one of the labourers at the kiln, as eye-witnesses and P. W. Hazoor Bux to whom the incident was narrated soon after the incident, and Mohd. Hussain, the mashir of the wardat and recovery of two empties from the wardat and the Investigating Officers P.
9. Ws. Muhammad Khan and Shahmir Khan. All the P. Ws. Supported the prosecution case except P.
10. W. Basser who deposed that he was ill on the night of incident and was lying unconscious and knew nothing of the incident.
11. The defence of the appellants at the trial was one of denial and false implication due to enmity.
12. The trial Court relying on the evidence of the aforesaid supporting witnesses convicted the appellants and sentenced them as stated above.
13. The question for consideration is whether the appellants have been rightly convicted of the offences they stood charged with.
14. The learned counsel for the appellant contended that out of the 3 eye--witnesses P. W. Bassar had not supported the prosecution. Out of the remaining 2 eye-witnesses P. W. Wahid Bux was examined by the police on 4-6-71, 14 days after the incident, so that his evidence had to be ruled out of consideration and for this relied upon PLD 1965 Kar.
76. As to the complainant Khan Mohammad, the learned counsel argued that his evidence was inconsistent with the version set out in the F. I. R. And has also not been supported by the labourers Sher Afzal, Sarwar and Ghous Bux who were not even examined by the prosecution though available and therefore should not be believed.
15. The conviction of the appellants rests entirely on the ocular evidence of complainant Khan Muhammad and P. Ws. Wahid Bux as Bassar has not supported the prosecution. Complainant Khan Muhammad's evidence at the trial was that he was incharge of labourers working in the Bhatta and also lived near the Bhatta (brick kiln) alongwith his family. P. Ws. Bassar, Sarwar, Ghous Bux and Sher Afzal who were labourers also lived near the kiln and Wahid Bux was the Chowkidar.
16. At about 1-00 or 1-30 a.m. In the night, he was sleeping on the terrace of his house whereas his family was sleeping in the room below. He got up on hearing two gun shots and came down to the room and bolted the door from inside. Appellants however broke open the door and entered the room, and fired two shots in the room which kept him away. There, he saw four persons whom he identified in the light of the lamp burning inside the room to be the present appellants who were already known to him. Out of the appellants, Pinjo and Piaro were armed with guns. Nibal was armed with a hatchet while Qassim was empty-handed. Appellant Nihal gave him a backside hatchet blow which, on his warding of, fell on his head and arm. Appellant Piaro stopped him at the point of gun while the remaining appellants Pinjo and Wassim took one tin trunk containing Rs. 900 cash, one attache-case and one radio, one golden ear-ring, one west-end-watch and some other articles valued at Rs. 4,000. Thereafter all the four appellants made good their escape. Thereafter, he went and opened the door of the room where 8 labourers namely Wahid Bux, Sarwar, Bassar, Ghous Bux and others had been confined. They told him that they had been confined by the appellants. P. W. Wahid Bux, Sarwar and Bassar further informed him that they had identified the appellants. Thereafter, Sher Afzal, one of the labourers went and brought P. W. Hazoor Bux who was apprised of the incident by him and others and on his advice lodged the F. I. R. He was cross- examined at length but all that could be brought out by the defence was few contradictions between his evidence at the trial and his statement before the committal Court on matters of least importance which in no way affected the credibility of this witness. First contradiction that was brought out was that whereas he had stated at the trial that the brick kiln was one mile away from the village of Haji Lakhmir, one of the owners of kiln, he was shown to have stated in committal Court that village of Haji Lakhmir was less than a mile from the kiln. Second contradiction pointed out to him was that whereas he deposed at the trial that the room wherein labourers were confined was 20 feet away from his room, he was shown to have stated before the committal Court that the room was 10 feet away from his room. Third contradiction brought out was that whereas according to, his evidence at the trial, appellants fired four shots, in his statement before the committal Court he had stated that the appellants had fired six shots. The fourth contradiction or omission brought out was that whereas he stated at the trial that faces of three accused were open while the face of the fourth was muffled, he made no mention about it in the F. I. R.
17. The above contradictions, it will be seen, are of no importance and do not in the least, much less materially affect the credibility of this witness whose evidence on the main incident goes unscathed. He identified the appellants in the light of kerosine lamp which is shown in the evidence to have been burning in the room. He also knew the appellants as they had worked with him for six years which fact has not been disputed by the defence as not a single question was put to the witness. On the contrary the defence itself suggested in his cross-examination that the appellant had not been paid wages by them i.e. This witness and the owner and to avoid payment this case had been filed. Apart from the suggestion regarding implication being far-fetched, it goes to confirm that the appellants had worked with the complainant. This being so, the complainant could have had no difficulty in identifying the appellants. Then, out of the appellants, namely, Nihal also gave back side hatchet blow to the complainant which caused injury to him on his head and arm which suggests that the complainant must have come close to the appellants and, therefore, could have easily identified him and others who had come inside the room of the complainant.
18. The evidence of the complainant is also corroborated by the fact that he was sent to the hospital where Dr. Habibullah Shaikh found two injuries (;) Lacerated would 1' x 1/4--" skin deep on right of back of skull and (ii) swelling 2 1/2-- x 2" on the right forearm, on his person as alleged by him in his evidence and in the F. I. R. Lodged at 6 a. m. In the morning. The doctor also ruled out the suggestion that the injuries could be self suffered. The argument of the learned counsel that these injuries could have beers suffered by the complainant in discharge of his professional work at the brick kiln on the previous day is rather far-fetched. Lastly, there also appears no reason why this witness should have falsely implicated the appellants. He was himself an employee at the brick kiln so that even if it were to be accepted for a moment that the appellants had not been paid their wages and to avoid the payment the appellants had been implicated, the complainant was not the person responsible for payment of wages and it also looks very hard, if not absurd, to believe that complainant having no concern with the payment of the wages would take upon himself to fabricate the incident including inquiring himself to avoid payment. Apart from above, not even a suggestion was made to him in his cross-examination if he was and in any manner inimical or hostile to the appellants.
19. Thus, the evidence of complainant Khan Muhammad is convincing reliable and inspires confidence and has, therefore, been rightly believed by the trial Court. It was argued by the learned counsel that none of the labourers except P. W. Bassar was examined by the prosecution to support complainant Khan Muhammad. That may he so, though reason has been given by the prosecution for not examining them, but this circumstance by no means would affect the evidence of this witness if on its own merits it is found to be worthy of belief.
20. Next witness is P. W. Wahid Bux. He stated at the trial that he was a Chowkidar at the kiln.
21. Complainant Khan Muhammad lived at the kiln in a Pukka house consisting of three rooms out of which one was occupied by complainant, one was used by the labourers and the third was in his possession. On the night of the incident, while he was giving a round at about 2 a. m., he saw four persons at the distance of 20 feet and challenged them. The appellants in return fired at him and thereafter forcibly dragged him towards the room of complainant Khan Muhammad and confined him in the room used by other labourers. Later they also brought P. W. Bassar, Sarwar and Sher Afzal and confined them also in the same room. All of them then heard complainant raising cries that he had been robbed and they also informed him from inside the room that they had been confined by the appellants as a result whereof complainant Khan Muhammad opened the door and released them. P. W. Sher Afzal thereafter went and brought Hazoor Bux and Muhammad Saleh to whom the incident was narrated by him and the complainant Khan Muhammad. The learned counsel for the appellant criticised the evidence of this witness by arguing that whereas incident took place on 20-5-1972, he was examined by the police on 4-6-1972, 14 days after the incident and his evidence therefore, should be kept out of consideration. For support the learned counsel relied upon PLD 1965 Kar.
76. Evidence of A. S. I. Muhammad Khan no doubt shows that he recorded the statement of the witness on 4-6-72, 14 days after the incident. But the investigation itself was transferred to him on 30-5-72 after changing two hands. Then, not a single question has been asked either from A. S. 1. Muhammad Khan or even from the first Investigating Officer Shahmir Khan to offer any explanation for the delay in recording the statement. Wahid Bux is, however, named in the F. I. R. And is shown therein to have been present at the wardat on the night of incident so that if his version is not mentioned in the F. I. R. In detail, it would not necessarily detract from the worth of own evidence, as the F. I. R. Need not contain details of the version of every witness. The fact that his statement was recorded late could at best cast a suspicion on the evidence, but there is no hard and fast rule that the evidence of such a witness must be disbelieved. The case relied upon by the learned counsel shows that the evidence of the witness in that case had been disbelieved by the trial Court, for more than one reasons. The argument could have weighed if he was the sole witness or if the evidence of other witness also was found unreliable. In this case, however, he has been supported in his evidence by complainant Khan Muhammad who has been found to be a reliable witness.
22. Thus both, complainant Khan Muhammad and Wahid Bux, have bees further corroborated by P. W.
23. Hazoor Bux whose evidence is also reliable. The learned counsel sought to attack the evidence of Huzoor Bux on the ground that he bad denied that mashir of vardai P. W. Muhammad Hussain was his driver whereas Muhammad Hussain had admitted that he was his driver. This is hardly a circumstance to discredit his testimony.
24. There remains to consider the evidence of P. W. Bassar. He has not supported the prosecution. He stated in his evidence that on the night of the incident he was lying unconscious with fever and came to know about the incident in the morning only and he had no talk with the complainant at the brick kiln. This witness appeared to the trial Court to have been won over by the accused. I have no reason to disagree with the trial Court which had the advantage of watching the demeanour of the witness and his manner of giving evidence so that even if his evidence is kept out of consideration, the evidence of complainant Khan Muhammad and P. W. Wahid Bux fully establishes the prosecution against the appellants beyond reasonable doubt. The learned Additional Sessions Judge has, however, convicted all the appellants under section 394 read with section 397, P. P. C.
25. And sentenced each to R. I. For 7 years. In doing this, the learned Judge has overlooked the point that according to complainant Khan Muhammad appellant Qasim was un-armed and he is also not alleged to have caused or attempted to cause any hurt. Indeed this position has been accepted by the learned Judge in acquitting appellant Qassim under section 13-D of the arms Act.
26. It is well settled that section 34 or 149, P. P. C. Cannot B be invoked for the application of section 397.
27. P. P. C. And that only those) accused can be brought within the orbit of the latter section who are armed with deadly weapons or cause grievous hurt to any person or attempt l to cause death or grievous hurt. Consequently conviction of appellant) Qassim under section 394, P.P.C only can be maintained which I hereby do. This however, leads to consider whether the sentence of 7 years should in that case be maintained. I feel that under the circumstances that he was unarmed and did not cause or attempt to cause hurt, his case is distinguishable from the rest of appellants and sentence of three years will meet the ends of justice. With this modification, convictions and sentences passed on the appellants under section 394/397 and under section 342, P. P. C. Are maintained. Appellants Pinjia and Piaryo have also been rightly convicted under section 13-D of the Arms Act, in view of the evidence led by the prosecution which has been held to be reliable.
28. This appeal is accordingly dismissed with the modification that sen--tence of the appellant Qassim son of Ghous Bux under section 394, P. P. C. Is reduced to three years' R. I. Only.