' On the conclusion of the hearing of this appeal I had by a short order dismissed the appeals with modifications in conviction and sentences and I now proceed to record the reasons for the same.
2. The prosecution story briefly is that on 23-4-1966, at asur time which would roughly correspond to about 4-30 p.m., complainant Khan Muhammad, who is a maternal uncle of Muhammad Yacoob Khan, and had come to stay with the latter as a guest in the village Karim Bux, within Thul Tehsil, of the District of Jacobabad got up from sleep and found that there was a large hole in the kote (compound wall) of the house of Muhammad Yaqoob and this aroused a suspicion in his mind about a theft and burglary having taken place during the night. Complainant K ban Muhammad woke up Muhammad Yacoob who also saw the hole in the wall and on checking found an iron trunk containing clothes and a vacuum flask and a gold ring missing. One Badruddin was thereafter called and he was sent to bring the pagi (Foot Tracker) who was brought and indistinct foot prints of five persons were noticed. The prints were marked and the party consisting of Khan Muhammad, Yacoob, Badruddin, Dil Karim and some others tracked the prints which entered village Khawind Bux. Thereafter, the prints were shod indicating that the five persons had put on shoes at village Khawind Bux. Beyond this village of Khawind Bux the empty trunk with a broken lock was seen by the complainant party, lying abandoned in the nearby fields. The tracking party proceeded further and Sikandar Khoso met the tracking party near the village of Mir Khan Khoso, and he informed the complainant party that he had seen five persons having a bundle, going in the Southern direction; out of whom he had identified Khalkoo Brohi and Chakar Khoso; but had not identified the remaining three, and that these five persons were carrying a bundle with them. He further disclosed to the complainant party that while Khalkoo was armed with a single- barrel gun the remaining four persons did not have any weapons with them. Sikander also joined the tracking party which reached Musa canal where they found five persons proceeding ahead of them and carrying a bundle. All the witnesses in the tracking party except Yacoob Khan who had in the meantime abandoned the tracking, identified Khalkoo Brohi and Chakar Khoso. It is then stated that the complainant party challenged these five persons who are now the appellants before me, where upon Khalkoo Brohi opened aerial gunshots at the complainant party, and one other person who was subsequently caught and is appellant Azim Jakhrani, opened revolver fires at the complainant party. While none from the complainant party was injured, appellant Khalkoo ran away with the gun whereas the complainant Khan Muhammad started firing at the remaining four appellants and caused injuries to each one of them. The remaining four appellants namely, Azim Jakharani, Amir Bux Chano, Samano Chano, and Chaker Khoso were caught by the complainant party on the spot and while Azim had a revolver with him, Samano and Chaker had lathis, and Amir Bux was carrying the bundle containing the stolen property. Each one of the four persons who had been apprehended had received injuries at the hands of the complainant party. The complainant party thereafter, returned to Police Station, Karim Bux and Khan Muhammad lodged a report at 7- 30 p.m. On the same day which was recorded by Head Constable Ghazi Khan. The four accused persons who had been apprehended together with the property were produced before the Police Officer. Each one of the four appellants was arrested and each one of them had injuries in regard to which mashirnamas were prepared and they were latter sent to the Civil Hospital at Jacobabad for examination of the injuries and treatment. Dr. Abdul Ghani who had examined the four appellants has given evidence in the case and had stated that appellant Chakar and Azim had received lacerated injuries from a fire-arm; whereas appellant Amir Bux and Samano had contused wounds on their person which may have been caused on account of lathi injuries. I may at this stage state that the prosecution witnesses have stated that at the time of apprehension the four appellants were given lathi injuries by the prosecution witnesses.
' Appellant Khalkoo could not be arrested until 18-9-1967 when Sub-Inspector Haji Khuda Bux arrested him from New Daulatpur.
' The pistol which was recovered from appellant Azim Jakhrani at the time of encounter and later produced by the complainant before the Police Officer at the time of lodging first information report was sent to Muhammad Sarwar, the Ballistic Expert, alongwith the empties which had been used by appellant Azim in the encounter, and the weapon on examination by Muhammad Sarwar was found to be same from which the empties that were recovered from the scene and produced by the complainant before the Police Officer, had been fired. Muhammad Sarwar has been examined in Court.
' On completion of investigation four appellants namely, Azim, Amir Bux, Samano and Chakar were sent up to stand their trial and Khalkoo Brohi was shown as an absconder but after the latter's arrest he has been tried along with the four other appellants.
' The five appellants were originally tried by the Additional Sessions Judge and were found guilty of the offences under sections 395/397/307/380/457, P. P. C. And 13-D of the Arms Ordinance. They filed an appeal in the High Court which was accepted and the case was remanded for retrial. They have thereafter, been tried afresh by an Additional Sessions Judge, Jacobabad, who has found them guilty of the offences with which they were charged and has convicted and sentenced them as follows: ' Each one of the five appellants has been found guilty under section 395/ 397, P. P. C. And sentenced to R. I. For 7 years and to pay a fine of Rs, 5,000 (in default R. I. For 1-1/2 years. Each one of them has also been convicted under sections 457 and 380, P. P. C. Read with section 149, P. P. C. And sentenced to R. I. For four years and to pay a fine of Rs, 2,000 on both the counts (in default of payment of fine further R. I. For one year). Appellants Azim and Khalkoo have also been convicted under section 13-D of the Arms Ordinance and sentenced to R. I. For one year. The substantive sentences have been ordered to run concurrently.
3. At the trial the prosecution examined complainant Khan Muhammad Muhammad Yakoob, who was the owner of the house that had been burgled; Moulvi Badruddin and Dil Karim pagi, the persons who had tracked the foot-prints of the appellants, and were present at the time of encounter and arrest of the appellants; Sikandar, who had given information to the complainant party in regard to the five appellants proceeding in the direction which was followed by the complainant party; resulting in the four appellants being captured; Haji Shawal, a witness who arrived at the scene after the appellants had been captured. Besides these witnesses the prosecution examined the police officers concerned with the Investigation and the mashirs in whose presence the several places namely, the house of the complainant, the place where the empty trunk was found and the place where the appellants were captured, were inspected by the police. Prosecution also examined Dr. Abdul Ghani in the committal Court whose evidence was brought on the record of the Sessions Court under section 509, Cr. P. C. The Ballistic Expert also appeared and gave evidence to the effect that empties recovered from the place where the appellants had been captured and which were subsequently produced before the Police Officer alongwith the revolver found from appellant Azim that such empties according to the Ballistic Expert had been fired from the revolver that was found.
4. While the five appellants examined no witnesses in defence, in their statements under section 342, Cr. P. C. They denied the prosecution case and stated that they were going to attend the marriage of one Chano and while they were on the road the complainant party suspected them to be the thieves and caught hold of them. They denied that any weapons were recovered from them or any property was secured by the complainant party from them. They also denied that appellant Khalkoo who had succeeded in making his escape from the place where the remaining appellants had been arrested, was with these appellants. While appellants Azim, Samano and Chakar alleged enmity with the complainant party in general terms; appellants Khalkoo and Chakar specified that complainant Khan Muhammad was their enemy because they used to cultivate his land and Khan Muhammad had refused to give the harap share to them and for such reason there was an altercation between them and complainant Khan Muhammad. Chakar appellant had in cross- examination of Moulvi Badruddin suggested a question that the witness Moulvi Badruddin had appeared as a witness against him in another case; but the said witness stated that while he had appeared as a witness against one Chakar, he was unable to state if appellant Chakar was the same person.
5. On a perusal of the evidence of the prosecution certain facts stand out distinctly established, and there is no controversy on such facts. These facts are that a burglary had taken place in the house of Muhammad Yakoob on the night of the incident; that the complainant party had traced the foot prints to a distance of about 15 miles where the appellants were seen. Four out of the five appellants do not dispute their having been caught by the complainant party and all that they dispute is that the weapons and the stolen property was also recovered from them. In the present case there is nothing to indicate that the prosecution witnesses have any reason to falsely implicate any of the five appellants. The existence of injuries on the person of four out of the five appellants is a further indication that the appellants resisted their capture by the complainant party and had to be subdued only by causing injuries to them either by fire arm or by lathi. The empty trunk which according to the prosecution had been stolen from the house of the complainant was found lying abandoned at a distance of about 4 or 5 miles from the place where the theft had occurred. It is also further established on the evidence of all the witnesses that stolen property had been recovered from the appellants and such stolen property had been identified by complainant Muhammad Yakoob who is a respectable Zamindar owning about 1000 acres of land.
Among the articles there is a ring bearing the name of Yakoob and the recovery of such ring from the possession of the appellants is a further link in the chain of circumstances establishing the identity of the stolen property. The evidence of prosecution witness Sikandar again fully corroborates the evidence of the remaining four witnesses namely, Khan Muhammad, Muhammad Yakoob, Moulvi Badruddin, and Foot Tracker Dil Karim. This witness, namely, Sikandar had given information to the persons who were tracking the thieves, in regard to the direction in which he had seen the thieves proceeding. While four out of the five appellants were caught with the property near mesa canal; the fifth appellant namely, Khalkoo Brohi after firing aerial shots succeeded in making his escape and he was arrested after about 11 years of the incident. It seems Khalkoo was known to Sikandar as well as the other witnesses and they had identified him so that his name also appears in the first information report.
' While four out of five appellants admit their capture at the place stated by the prosecution witnesses, they state that they were captured by the complainant party on account of suspicion.
According to the appellants they were suspected of the commission of theft. It is indeed established beyond any shadow of doubt that a theft had been committed and the complainant party was chasing thieves; and having been informed by Sikandar, they proceeded in the same direction and captured four out of five appellants; the fifth having escaped. These four appellants have only stated that they have been implicated on account of enmity without specifying the nature of such enmity. Likewise Khalkoo has alleged enmity with Khan Muhammad in regard to his supposed harap rights, but even a question was not suggested to Khan Muhammad in cross- examination on that point. I am satisfied that the evidence of the prosecution witnesses in regard to the factum of the crime as well as the identity of the criminals is established beyond reasonable doubt. Mr. Azizullah Shaikh, the learned Advocate for the appellants has also not seriously challenged the truth of the evidence of the prosecution witnesses. The learned Advocate has however, pointed out some very minor contradictions in the evidence of the witnesses but in my opinion the same do not in any manner reduce the credibility of the witnesses who have been produced. The learned Advocate has also pointed out that in spite of the complainant residing at a distance of 150 yards from Karim Bux Police Station no report was lodged until after about 15 hours; but, the delay is sufficiently explained because the complainant party had pursued the accused persons and lodged the report only after the capture of the accused, and the evidence in the case discloses that the accused were captured by the prosecution witnesses at a distance of at least 15 miles from the house of the complainant, from where the theft had taken place. The delay in lodging the first information report is therefore, sufficiently explained and looking at the first information report and evidence I am satisfied that circumstances did exist which are sufficient to condone the delay in lodging the report.
6. The last question that deserves consideration is whether the appellants have been rightly convicted of the offence of which they stand convicted and the question of sentence. The learned Advocate has urged that section 397, P. P. C. Is not attracted to the facts of this case. He has argued that since no injuries have been caused to any person and further that the weapons carried by the appellants have not been used for the purposes of the commission of the theft or burglary, section 397, P. P. C. Was not attracted. The provisions of section 397, P. P. C. Which define robbery clearly state that, if for the purpose of carrying away stolen property the accused person uses, or ettempts to use a .Weapon or causes or attempts to cause hurt the offence of robbery is established; and for establishing dacoity, if any of the five persons engaged in the commission of robbery conjointly, uses or attempts to use force, a dacoity is said to be committed. Mr. Azizullah has however, argued that use of firearm by appellants Khalkoo and Azim was for the purpose of effecting escape rather than removal of property and further that looking to the details of the transaction, the encounter which occurred between the complainant party and the appellant at the place where the appellants were captured was a transaction different and distinct from the transaction of theft and burglary. I am of the view that this argument is misconceived because the provisions of section 397, P. P. C. Are very clear which state that if violence is resorted to for achieving the "end" of carrying away the property, the offence will be robbery and not mere theft. In this case the prosecution witnesses have established that Khalkoo fired aerial shots and the purpose of such firing could be none other except to facilitate the removal of the property which had been stolen. Similarly it is stated that Azim fired revolver shots at the complainant party and I cannot possibly see any other purpose for which the revolver might have been fired except the purpose of facilitating the carrying away of the property which had earlier been stolen. What is more that the transaction of commission of theft as well as the removal of property cannot, but be considered to be a single transaction, for a person who commits theft does not simply intend to remove a thing from one place to another but his intention is to dishonestly enrich himself by taking away the property. In this case the appellants committed theft or burglary, were taking away the property, and while they were so taking away A the property encounter occurred, in which force has been used; and for such reason the offence of dacoity has been committed.
' The next question is whether appellants Amir Bux, Samano and Chakar have been rightly convicted under section 397, P. P. C. The admitted position is that while Samano and Chakar were armed with sticks Amir Bux had no weapon. For attracting the provisions of section 397, P. P. C. The prosecution has to establish that some deadly weapon was carried by the person engaged in robbery or dacoity. Sticks are usually carried by persons in mofussil and cannot be considered to be deadly weapons. Samano and Chakar were only carrying sticks and it is admitted case that Amir Bux was not carrying any weapon with himself. I am therefore of the view that Amir Bux, Samano and Chakar have been wrongly convicted under section 397, P. P. C. But Khalkoo and Azim have been rightly convicted tinder section 397, P. P. C.
' Coming to the offences of theft and house-breaking the evidence is abundantly clear that a big hole had been bored in the kote of the complainant for the purpose of facilitating entry into the house of the complainant; and thereafter, the theft was committed. The appellants have therefore, been rightly convicted under section 457/380/149, P. P. C. In regard to conviction of appellants Azim and Khalkoo for possession of unlicensed arms they have been rightly convicted under section 13- D of the Arms Ordinance.
7. In the result I would dismiss the appeal and record convictions against each one of the five appellants under section 395; P. P. C. And against appellants Azim and Khalkoo under section 397, P. P. C. Appellants Azim and Khalkoo have been sentenced to 7 years' R.
1. And a fine for an offence under section 395/397, P. P. C. I will maintain the sentence of imprisonment of seven years, but do not maintain the sentence of fine and the sentence of imprisonment imposed in default of payment of fine. In the result Azim and Khalkoo stand convicted under section 395/397, P. P. C. And are sentenced to seven years' R. I. The further sentence of one year under section 13-D of Arms Ordinance is also maintained. Appellants Amir Bux, Samano and Chakar have been convicted under section 395/397, P. P. C. The conviction under section 397, P. P. C. Is set aside but the conviction under section 395, P. P. C. Is upheld. I however reduce their sentence to R. I. For two years on that count. In regard to conviction under section 457/ 380/149, P. P. C. I reduce the sentence of each one of the five appellants to R. I. For two years only and remit the sentence of fine in the case of each one of them. All the sentences of imprisonment imposed on each one of the appellants shall run concurrently.
' I have imposed a lenient sentence under section 395, P. P. C. Viz, a sentence of two years only. The reasons are that the incident had occurred in 1966 and the appellants had to undergo trial or persue appeals for nearly 8 years and for a substantial portion of period out of 8 years, the appellants had to remain in Jail. They were earlier convicted and their conviction was set aside by the High Court on purely legal grounds and the case was ordered to be retried. On account of such long delay in the ultimate decision of this case I am of the view that the sentence of two years' R. I.
Shall meet the ends of justice. The value of the property involved is about Rs, 400. Inc regard to the offence under section 397, P. P. C. Of which appellants Azim and Khalkoo have been found to be guilty I have no alternative but to impose the minimum sentence of seven years which is prescribed by section 397, P. P. C.
8. Appeals dismissed subject to modifications in sentence.