MUHAMMAD NAWAZ ABBASI, J: --Kabeer. Ahmad, Bilal Ahmad Nazir Ahmad, Jalal Ahmad sons of Ahmad Bakhsh and Hassan son of Abdul Rehman along with 12 others residents of Village Khakhi Panjin, Shujabad faced trial for the charge under section 302/324/216/395/397/148/149, P.P.C.
Before Punjab Special Court No.VI, Multan constituted under Suppression of Terrorist Activities (Special Courts) Act, 1975. Pending conclusion of the trial, the legal heirs of Muhammad Younas deceased compromised with the accused waiving their right of Qisas on receipt of compensation as Badal-e-Sulah. The accused facing the trial including the appellants were acquitted of the charge under section 302/324/148/149, P.P.C. However, the trial in respect of the offence under section 216/395/397, P.P.C. Being not compoundable was concluded and the appellants having been found guilty under section 216/392/397, P.P.C. Were convicted accordingly. They were sentenced to three years' R.I. Each with a fine of Rs.5,000 each in default of the payment of fine to undergo R.I. For six months each under section 216/34, P.P.C. Nazir Ahmad and Kabeer Ahmad appellants were also convicted under section 392/397, P.P.C. And sentenced to five years' R.I. Each with a fine of Rs.5,000 and in default of the payment of fine to further undergo R.I. For one year each. However, the sentence of Nazir and Kabeer appellants under all the charges was directed to run concurrently with benefit of section 382-B, Cr.P.C.
2. The prosecution case as disclosed in the F.I.R. Exh.P.1/1 registered on the basis of complaint Exh.PA prepared by Manzoor Hussain S.I./S.H.O. P.W.14 is to the following effect: Bilal Ahmad, Nazir Ahmad and Hassan appellants were involved in Criminal cases F.I.R. No.356/91 under section 395, C.P.C. And F.I.R. No.455/91 under section 394, P.P.C. Of Police Station City Shujabad. Manzoor Hussain, S.I. P.W.14 along with Abdul Waheed P.W.10, Abdul Sattar P.W.13, Jam Ahmad Ali, S.I., Nazar Hussain, S.I. And Anwar Hussain, A.S.I. Armed with official revolvers, and Muhammad Younas Constable (deceased) with some other Constables armed with official rifles reached at the Dera of Bilal appellant situated in village Khakhi Punjani Shujabad at about 6-45 a.m. On the day of occurrence i.e. 30-12-1991. Nazir Ahmad and Hassan appellants were apprehended by the police party in front of the Dera of Bilal and were given in custody of Abdul Waheed S.I. And Muhammad Younas deceased. The remaining police party proceeded towards the Dera of Bilal to arrest him but on raising alarm by Nazir and Hassan appellants, Bilal armed with rifle, Kabeer with gun, Jalal with pistol along with their acquitted co-accused armed with deadly weapons started firing on the raiding party for the release of Hassan and Nazir appellant. The police party taking position also opened fire. The cross-firing between the accused and the police party remained continued for a considerable period. A fire-shot by Bilal appellant hit Muhammad Younas Constable who died at the spot. The accused punctured the official wagon by fire and also broke its glasses. Bilal with the help of his co-accused while firing lifted the dead body of Muhammad Younas deceased to his Dera. Kabeer and Jalal with their co-accused caused injuries to Abdul Waheed S.I. P.W and by snatching his official revolver got Nazeer and Hassan released from his custody, who later armed with sticks respectively joined the hands of their co-accused and caused injuries to Abdul Sattar A.S.I. And also snatched his official pistol. Nazir appellant removed log book, diesel book, mike etc. From police wagon. This armed encounter between the appellants along with their co-accused and the police party took place outside the Dera of Bilal appellant. The complaint Exh.P.I. Was prepared by Manzoor Hussain S.I. At the spot on the basis of which case was registered against the appellants and their co-accused.
4. The deceased Muhammad Yaqoob, Ahmad Ali S.I., Abdul Sattar A.S.I., Fayyaz Hussain Constable injured were medically examined by Doctor Rafique Ahmad on the day of occurrence. The ocular account was furnished by Manzoor Hussain S.I./S.H.O. P.W.14, Abdul Waheed and Abdul Sattar P.W.13.
Manzoor Hussain S.I. Also prepared injury statement of Jam Ahmad Ali, Abdul Sattar and Fayyaz Hussain injured P:Ws. And recorded their statements. The dead body of Muhammad Younas was recovered from the house of Bilal appellant. The blood-stained earth collected from five places was taken into possession in separate memos. An empty fire was received from the place from where Bilal appellant fired at the deceased. The official wagon in damaged condition and a large number of empties of the shots fired by police party during the encounter were also recovered, and taken into possession. After the arrest of accused on 21-2-1992, weapon of offence was got recovered allegedly used by them during the encounter. Nazir appellant in police custody led to the recovery of pistol Exh.P.37 and official pistol P.38 of Abdul Sattar A.S.I. With Rs.5,300 Exh.39/1-3 and Exh.P.40/1-38 from his house on 4-3-1992 which were taken into possession vide Memo Exh.P.C.C. JaW appellant on the same day led to the recovery of rifle P.41 with Rs.25,000 Exh.P.42/1- 50 vide Memo Exh.P.DD. These recoveries from the appellants were witnessed by Abdul Waheed, Abdul Ghani Aslam Hayat and Manzoor Ahmad S.H.O. P.W.14.
5. The appellants in their statements under Section 342, Cr.P.C.. Refuted the prosecution case in toto and pleaded innocence.
6. Bilal appellant in reply to a question stated that he had a dispute over land with Jam Ahmad Ali S.I. P.W. In the case. Elahi Bakhsh, his uncle contested election of Chairman against Hafiz Abdullah who prompted the police to raid his house and that of his co-accused in their absence. A few days before the occurrence there was a marriage party in his brotherhood where Hafiz Abdullah along with some police officials insulted him and he replied to him in the same coin, which made the police officials his enemy and later on, on the pretext of arresting him in two criminal cases fabricated a false story of police encounter against him and his co-accused. In ,fact the police in his absence raided his house and it was not known who killed Younas Constable, and injuries on the person of police officials are fabricated. He .Tendered in evidence the copies of the writ petitions filed by him in the High Court. The remaining appellants and his co-accused made similar statement and did not produce any defence evidence. .
7. The learned counsel for the appellants contends that the police raided the house of Bilal at the instance of Jam Ahmad Ali S.I., an opponent of Bilal etc. On the pretext that they were required in two criminal cases whereas the fact is that they were not accused in the said cases but were shown involved to justify the police action. He urged that the police party raided the house of the appellants without warrants and therefore, the appellants were justified and in their right to resist the police action. He next argued that the provisions of section 392/397, P.P.C are not attracted in the given facts and even if, the prosecution story is believed as such hardly a case under Section 216/34, P.P.C read with 384/34, P.P.C. Can be made out. He at the conclusion of his arguments submitted that keeping in view the compromise between the parties in the major charge, the sentence under remaining charges already served by the appellants be considered enough to meet the ends of justice.
8. Conversely the learned AA: G. Submitted that the evidence is sound enough of unimpeachable character leaving no room to doubt the correctness of prosecution case. He, however, is of the opinion that section 392/397, P.P.C. Shall not possibly be attracted in the facts of the case. .
9. We have given due consideration to the arguments advanced by the learned counsel for the parties and perused the record carefully with their assistance.
10. The occurrence took place at about 6-45 a.m. And the case was registered at 8-45 a.m. On 30- 12-1991 on the basis of complaint prepared by Manzoor Hussain S.I. S.H.O. At the spot. As per contents of the complaint Bilal Ahmad, Naseer Ahmad and Hassan accused were required to be arrested in the above-referred criminal case for which purpose a raid at the house of Bilal Ahmad was conducted by the police. Therefore, the contention of the learned counsel that subsequent to the raid, the appellants were shown involved in the above two cases to justify the police action against the appellants at the instance of Jam Ahmad Ali S.L. Is unfounded. The eye-witnesses namely Manzoor Hussain S.I. S.H.O T-W.14, Abdul Waheed injured P.W.10 and Abdul Sattar injured P.W.13 members of the raiding party supported the prosecution story as contained in the F.I.R at the trial in tooth and nail. The recovery of large number of empties at the spot and other articles i.e. Official pistol, log book, diesel book and mike belonging to the police party is a strong evidence in support of the prosecution case. The firing of the appellants at the police party and snatching the official pistol with other articles is proved on record beyond doubt. The eye-witnesses corroborate each other on all material points with no notable contradiction and discrepancy. They being members of the raiding party and on official duty, ' their presence at the spot is free from doubt.
There is nothing on record to suggest that they for some other reason except to effect the arrest of the appellants arranged the whole drama and raided the house of Bilal appellant. The mere assertion of the alleged enmity of appellants with Jam Ali Ahmad S.I. With no positive proof shall not be sufficient to accept the defence version. The police action at such a large scale at the instance of Jam Ali Ahmad does got appeal to mind. It is common that people are always hesitant to become witness in such like cases and for many reasons do not depose against their co- villagers. Therefore, the evidence of the P.Ws., produced at the trial cannot be thrown away for mere reason of their being police officials. The injuries on the person of police officials, the place of occurrence outside the house of Bilal appellant, the recovery of dead body of Younas from his Dera immediately after the occurrence, the recovery of official pistol along with other articles at the instance of appellants are the strong corroboratory evidence to prove the guilt of the appellants. It was strongly argued that appellants being not earlier known to the P.Ws., it was not possible for the P.Ws. To identify them in the dark. It was morning time and occurrence continued for a considerable time, therefore, there was no difficulty for the P.Ws. To identify the appellants. Further, Nazir and Hassan remained in police custody for some time who secured their release with the aid and help of other appellants, therefore, there could be no doubt about their identity. Admittedly, Jam Ahmad Ali, a member of the raiding party was known to the appellants who must have disclosed the identity of the appellants to other P.Ws. Additionally, the claim of Abdul Waheed and Abdul Sattar that appellants were known to them earlier remained unchallenged. The ocular evidence in the present case being of unimpeachable character and confidence inspiring is to be given full effect without looking for any other corroboratory evidence. However, it seeks ample corroboration from other sources and circumstances of the case. We are, therefore, of the considered opinion that no other view of the evidence except the one taken by the learned trial Court is possible and the conviction of the appellants under section 216/34, P.P.C being unexceptionable is not liable to be interfered.
12. The application of section 392/397, P.P.C. In the circumstances of the case appears to be doubtful for want of essential ingredients to constitute an offence under the said provision of law.
The offence of robbery is an aggravated form of theft or extortion. There can be no case of robbery not falling within the definition of theft of extortion. The definition of robbery contemplates that an accused should from very beginning have the intention to C deprive another person of the property and to achieve that end, either hurt is caused or a person is placed under wrongful restraint, or it must be actually found that victim was put in fear of instant death, hurt or wrongful confinement. In absence of the positive evidence and the findings of the nature to establish the robbery as defined under section 390, P.P.C., the mere removal of articles by the accused armed with deadly weapons from the victim, would not make out a case of robbery. The most important aspect of the case to attract the provisions of section 392/395, P.P.C. Is that the offender for the' purpose of committing theft or carrying away or attempting to carry away property obtained by theft, voluntarily caused or attempted to cause death or hurt or wrongful restraint or fear of instant death or of instance hurt or of instant wrongful restraint. The use of force and violence by the appellants in the present case to resist their arrest was not with the intention to snatch the articles from police party recovered at their instance. The use of violence by the appellants during the transaction of encounter with police party having no intention to commit theft or for an object to remove the articles in question shall not constitute an offence under Section 392/397, P.P.C.
Muhammad Younas Constable met with death and P.Ws.. Received injuries at the hands of appellants,,, when they put resistance to the police action. The appellants did not cause 'death of deceased and injuries to P.Ws. With the object to remove the articles in question from the custody of police officials constituting an offence of robbery. The terror created by the appellants at the spot and thereby removing the articles from the possession of the police officials against their will brings the case within the ambit of section 384, P.P.C. Anti accordingly the conviction of the appellant under section 392/397, P.P.C is altered to that of under section 384, P.P.C.
The appellants were arrested on 21-2-1992 and they remained behind the- bars for about 10 months as under-trial prisoners till their conviction on 4-12-1992. Thereafter, they spent another period of about 10 months in jail as convict after their conviction. They remained lodged in jail for a total period of about 20 months. The maximum sentence of imprisonment provided under sections 216 and 384, P.P.C. Is three years, therefore, in view of the fact that the legal heirs of the deceased have compromised with the appellants, we considering the sentence already suffered by the appellants sufficient to meet the ends of justice, reduce the same equal to the period already undergone by them both under section 216, P.P.C. And 384, P.P.C. However, the sentence of fine awarded to them by the Trial Court is maintained. The appellants if are not required in any other case; shall be released forthwith from jail subject to the payment of the fine.
This appeal with the above modification in the conviction and sentence stands dismissed.