' JUSTICE SH. MUHAMMAD ZUBAIR (MEMBER).---Ghulam Mustafa, Muhammad Younas appellants alongwith Muhammad Shafique and Shahid (since acquitted) were tried under section 394/324/34, P.P.C. And under section 17 of Offences Against Property (Enforcement of Hudood)
Ordinance (VI of 1979), read with section 34, P.P.C., by the learned Judge Special Court for Speedy Trials, Multan. The learned trial Judge vide his judgment dated 8-8-1993 convicted the appellants and awarded them the following sentences:--- ' Under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 34, P.P.C.
' Both the appellants were punished with amputation of their right hand from their wrists and left foot from their ankles.
' Under section 324, P.P.C.: ' Ten years' R.I. And a fine of Rs, One lac each, or in default thereof 2 years' R.I. Each.
' Under section 336/34, P.P.C.: Ten years' R.I.
' The fine, if recovered, was ordered to be paid to Haji Shamshad Ahmad by way of compensation as envisaged under section 544-A, Cr.P.C. Benefit of section 382-B was not extended to the appellants. It was further ordered that both these sentences would run consecutively. Against their convictions, the appellants have filed the instant appeal.
2. The occurrence in this case took place on 20-6-1992 at about 8-15 p.m. Near the house of Muhammad Sharif situated in Mohallah Manzoorabad, Multan and on the statement (Exh.PD) of Muhammad Ishaq complainant (P.W.2) the formal F.I.R. (Exh.PD/1) was recorded by Dildar Ahmed S.I. Police Station Delhi Gate, Multan the same day at 9-00 p.m.
3. The facts in brief as narrated in the F.I.R. Are that Haji Shamshad who runs a general store at Chungi No,14, Multan was coming home on 20-6-1992 at 8-15 p.m. With his brother Muhammad Ishaq complainant who had come to his shop on that day. Shamshad Ahmed was having a bag containing Rs,1,50,000, account books and certain necessary papers. When they reached near Ashraf Tent House located in Mohallah Manzoorabad, Multan, one Rana Zulfiqar Ali, a friend of Muhammad Ishaq met him and they stood there for a moment. In the meantime, complainant's brother went ahead of them at a distance of twenty or twenty-five paces in the lane when four persons encircled him. Two of them were having fire-arms and all of them were young persons dressed in shirts and Shalwars. One of them had long stature, two were of small stature and one of them was of average stature. All the four culprits wanted to snatch the bag containing cash.
Meanwhile the person of average stature placed his pistol on the ear of Shamshad Ahmad and on his resistance, the said culprit fired near his ear, which went through his eye, on which he fell down and they snatched the bag from him. The complainant and Rana Zulfiqar Ali tried to chase the culprits but they fired in the air. The people from the Mohallah also chased them but they ran away after firing in the air. The complainant then dictated the complaint Exh.PD to the Police near the Chowk of Mohallah Manzoorabad. Dildar Ahmad Sub-Inspector (P.W.8) sent the complaint to the Police Station Delhi Gate, Multan through Ashiq Hussain F.C. For the registration of formal F.I.R.
Exh.PD/1.
4. The investigation was conducted by Dildar Ahmad S.I. He recorded the complaint Exh.PD as dictated by Muhammad Ishaq, complainant. He arrested Shafiq accused on 13-12-1992 and Muhammad Younas and Ghulam Mustafa accused on 28-12-1992 and Shahid accused on 13-1- 1993. On 18-12-1992 Shafiq., while in police custody, led to the recovery and got recovered Rs,10,400 from his residential house which he took into possession vide Memo. Exh.PL. On 28-12-1992 Ghulam Mustafa got recovered Rs,85,000 from his house. Fifty currency notes Exh.P.82 to Exh.P-131 were of the denomination of Rs,1,000 40 currency notes Exh.P.132 to Exh.P.171 of the denomination of Rs,500 each and 150 currency notes Exh.P.171 to Exh.P.321 of Rs,100 each. From Shafiq accused, he recovered 8 currency notes Exh.P.322 to Exh.P.329, 57 currency notes of the denomination of Rs,100 each Exh.P.330 to Exh.P.386. On the said date Muhammad Younas accused while in police custody led to the recovery and got recovered Rs,9,000 from his house, containing 2 currency notes of the denomination of Rs,1,000 each Exh.P.1 and Exh.P.2, 12 currency notes of the denomination of Rs,100 each and Rs,2,700 pertaining to another case. He sent Ghulam Mustafa and Younas accused to jail as they were to be identified in a parade. On 7-1-1993 both the accused were correctly identified in jail by the P.Ws. Shahid accused, while in police custody led to the recovery of a bag P.32 and two account books P.33 and P.34, which he took into possession vide memo. Exh.PB. On 26-1-1993 Shahid accused got recovered Rs,9,700 from his house, which he took into possession vide memo.
Exh.PC. On the day of the incident he prepared the site plan Exh.PN. He also prepared the site plans of the places of recoveries from Shafiq, Ghulam Mustafa, Younas and twice from Shahid which are Exh.PL/1, Exh.PM/1, Exh.PA/1 and Exh.PC/1 and Exh.PB/1. After completing all the formalities, the challan was submitted in Court.
5. Dr. Asif Jamil Ansari (P.W.5) on 20-6-1992 at 8-45 p.m. Medically examined Shamshad Ahmad the injured P.W. And he found the following injuries on his person:---
(1) An entrance wound of c.m. x c.m. Circular in shape with inverted margins present up at the end of the middle of the right ear pins. There is profuse bleeding from the right ear.
(2) An exit wound of 1 c.m. x 1 c.m. x depth not probed with everted margins present 1 c.m. Below the left eye brow and 1 c.m. Lateral to the root of the nose present on the medial part of the left eye.
There is profused bleeding from the wound.
3. There is whole swelling and blackening of both the eyes. In the opinion of the doctor, all these injuries were dangerous to life.
6. On 7-1-1993 Mr. Muhammad Arif Iqbal, M.I.C., Multan (P.W.7) conducted the identification parade of Ghulam Mustafa and Younas accused and furnished the report Exh.PJ and a certificate Exh.PJ/1.
According to his report he had associated more than eighteen persons with both the accused and Shamshad Ali, Ishaq and Rana Zulfiqar Ali P.Ws. Had correctly identified both the accused.
7. Placing reliance on the prosecution evidence, the learned trial Judge convicted and sentenced the appellants as mentioned above.
8. The learned counsel for the appellants vigorously contended that admittedly the appellants were not known to the eye-witnesses previously, the only evidence on the basis of which conviction was recorded by the learned trial Judge is the evidence of identification of the appellants, by the three eyewitnesses in the Jail which was supervised by Mr. Muhammad Arif Iqbal, M.I.C. (P.W.7). He has assailed the identification parade on the ground that the learned Magistrate did not observe the legal formalities while conducting the identification parade, neither he prepared the proper record of the identification proceedings nor/recorded the statements of the witnesses who recognised the appellants and what part they ascribed to those appellants allegedly played by them in the occurrence; that there is no independent corroboration of the ocular version, as the money allegedly recovered at the instance of Ghulam Mustafa appellant could easily be planted upon him with the active connivance of the complainant party with the object of beefing up their weak case, hence in view of these defects the prosecution has failed to prove its case beyond reasonable doubt. As the occurrence took place in the night time and the F.I.R. Was lodged with great promptitude but nowhere therein it has been mentioned how the eye-witnesses correctly registered or recognised the broad features of the culprits when the occurrence took place all of a sudden and came to an end within few minutes.In the end, the learned counsel strenuously argued that the punishment awarded to the appellants is bad in law in view of the proviso 2 to section 7 of the Ordinance VI of 1979 which contemplates that Hadd could only be imposed if the victim is examined first but in the present case Haji Shamshad Ahmad, victim of the alleged occurrence was examined as P.W.3, hence the conviction of the appellants under hand recorded by the learned trial Court is not sustainable in the eye of law.
9. The learned counsel for the State has supported the impugned judgment.
10. We have gone through the entire record carefully and have also examined the respective submissions of the learned counsel for the parties.
11. It is true that the incident took place in the night but it occurred in the street of Multan city where there was sufficient street light available in which the victim as well as the eye-witnesses could easily recognise the broad features of the culprits as is apparent from the F.I.R. Which was lodged promptly. Even the learned defence counsel did not put a single question to the eye-witnesses that they were not in a position to recognise the features of the culprits which shows that the defence accepted this part of the evidence without any objection. As mentioned above, it is established that there was sufficient light available on the spot in which the three eye-witnesses correctly registered the broad features of the culprits in their minds on the basis of which ultimately they correctly recognised them in the identification parade held in the Jail under the supervision of Mr. Muhammad Arif Iqbal (P.W.7). The victim Haji Shamshad Ahmad received a fire-arm injury from a very close range, hence he was in a position to easily recognise one of the appellants, who was beside him when he received the injury. This fact, by itself, is sufficient to prove the case against the appellant. Even in the absence of any enmity, the eye-witnesses had no ostensible reason to falsely implicate the appellants in this case.
12. In view of the above discussion, we are satisfied that the prosecution has proved its case beyond reasonable doubt.
13. We have given our anxious consideration to this contention of the learned counsel for the appellants whether the appellants could be convicted under Hadd in view of the lacuna mentioned above. We fmd great force in 'the submission of the learned counsel for the appellants, hence the conviction of the appellants under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance .(VI of 1979) is altered to one under section 394/34, P.P.C. And they are sentenced to 10 years' R.I. Each and a fine of Rs,50,000 each, or in default thereof 2 years' R.I. Each.
As Ghulam Mustafa appellant caused injury to Haji Shamshad Ahmad while snatching bag from him which resulted into the loss of his eye sight, hence conviction of the appellants under section 336 read with section 34, P.P.C. Is maintained but their conviction under section 324/34, P.P.C. Is set aside because a person cannot be punished twice for the same offence. We direct that both the sentences imposed upon the appellants shall run consecutively. With the above modification, this appeal is dismissed.