The present appeal is preferred against the judgment dated 7-6-1984 passed by Magistrate Section 30 (Judicial), Sialkot, whereby the appellant was convicted under section 458/511, P.P.C. And sentenced to five years' rigorous imprisonment and a fine of Rs.1,000, or in default thereof to further rigorous imprisonment for six months.
By the same judgment, the co-accused Yaqoob was acquitted.
Initially the accused were sent up for trial under section 307/34/458/511, P.P.C.
2. The brief facts of the case are that on 12-9-1991 at about 1-45 a.m. The complainant, Muhammad Sadiq, was sleeping in front of his shop situated near Railway Station, Amrial, when he heard some noise of ' Thak, Thak' from behind the shops. He awoke the other shopkeepers, Sultan and Khadim Hussain P. Ws. And when they went behind the shops they witnessed three persons breaking open the hind-wall of the shop of Haji Yaqub A.I. When the complainant and other P.Ws. Tried to apprehend them, one of the accused hurled a brick on the head of Khadim P.W. When the accused frond themselves surrounded by the P.Ws., one accused called his other co-accused by name of '
Yaqoob' to fire on the P. Ws. On which Yaqoob accused fired ineffective shots with a revolver. The P.
Ws. Caught one of the accused on the spot whose name subsequently was ascertained as Farman alias Chitta while the remaining two ran away from the spot.
3. The complainant was on his way to police station when Ahmad Shujah, A.S.I. Of Police Station Shakargarh met him to whom the complainant made his statement on the basis of which the present case was registered against the accused at 9-20 a.m. The same day i.e. 12-9-1981. After the occurrence, the absconding accused, Yasin and Yaqoob, were apprehended by the persons of village Chak Bika where the local police also reached after receiving information. They were also found guilty in this case and all the three accused were challaned by the local police after investigation.
4. On receipt of challan, Yaqoob, accused remained untraced. Therefore, he was proceeded against under section 87/88, Cr.P.C. While against the accused Farman A.I and Yaseen formal charge under sections 458/511, 307/34, P.P.C. Was framed. Both the accused pleaded not guilty to the charge, therefore, prosecution evidence was summoned.
5. In support of its case, the prosecution examined as many as ten witnesses, namely, Bashir Ahmad, Abdul Ghani, Muhammad Sadiq, Khadim Hussain, Ghulam Ghaus, Ghulam Sarwar, Wali Muhammad, Sultan Ahmad, Sultan Ahmad, Muhammad Yousaf, H.C. And Ahmad Shuja, A.S.I.
P.W.1 Bashir Ahmad and P.W.2 Abdul Ghani stated that Yaseen accused and Yaqoob, proclaimed offender, left their shoes on the spot which were taken into custody by the police vide memo.
Exh.PA. They signed the recovery memo. As marginal witnesses.
P.W.3 Muhammad Sadiq, complainant, stated that on the eventful night at about 1-45 a.m. He heard noise of 'Thak, Thak', and he awoke Sultan and Khadam PWs. When they reached near the place of occurrence, one accused hurled brick bat on Khadim P.W. One accused asked his other co-accused Yaqoob (proclaimed offender) to fire on the P.Ws., who fired two shots from his pistol but fortunately none was injured. 'They apprehended Farman A.I, accused, who told his name as Allah Ditta at that time. He made his statement (Exh.PB) to the police and produced Farman A.I, accused, before the A.S.I.
P.W.4 Khadim Hussain being another eye-witness, also deposed on the same lines.
P.W.5 Ghulam Ghaus has stated that he apprehended Yaqoob, proclaimed offender, while one Muhammad Sharif apprehended Yaseen, accused. At that time, Yaqoob (proclaimed offender, was armed with a pistol. He produced Yaqoob P.O. Alongwith the pistol and the cartridges which were taken into custody by the police vide memo. Exh. PC.
P.W.6 Ghulam Sarwar being another marginal witness of the recovery memo. Exh.PC also deposed on the same line.
P.W.7 Wali Muhammad also stated about the production of Yaqoob and Yasin, accused, before the police and recovery of the revolver with cartridges from the possession of Yaqoob P.O. Which were taken into custody vide memo. Exh. PC.
P.W.8 Sultan Ahmad being an eye-witness of the occurrence, supported the version of the complainant that when all of them reached the spot, they saw three persons committing offence of breaking open the hind-wall of the shops and further that when they tried to apprehend them, Yaqoob P.O., fired two shots on them on saying of his co-accused. He added that Farman A.I, accused, was arrested at the spot while the remaining made good their escape.
P.W.9 Muhammad Yousaf, HC, a formal witness, stated that on 12-9-1981, on receipt of complaint Exh. PB he prepared formal F.I.R. Exh. PB/ 1.
P.W.10 Ahmad Shujah, ASI, the Investigating Officer, stated that on 12-9-1981, he was on his patrol near Amrial Railway Station when Muhammad Sadiq, complainant, made his statement Exh.PB to him which he sent to the police station for registration of a case. He himself visited the spot and prepared the site plan Exh.PD with marginal notes. From the spot he took into custody shoes P1 and P2 vide memo. Exh.PE. He arrested the accused. Ghulam Sarwar P.W. Produced revolver P1, allegedly recovered from the proclaimed offender Muhammad Yaqoob which he took into custody vide recovery memo. Exh.PC. He completed the investigation and got the accused challaned in the case.
6. After the completion of the prosecution evidence, statements of the accused were recorded under section 342, Cr.P.C. In which they denied all the allegations levelled against them. Both the accused pleaded that they were waiting for the train on the railway platform when the complainant and other P. Ws. Apprehended them under the suspicion as the actual culprits had run away from the spot. Yaseen accused produced defence evidence while Farman A.I, accused, did not do so.
D.W.I Muhammad Yousaf stated that he and Yaseen accused were present on the Railway Station when Wahr-Party reached there and apprehended Yaseen, accused, alongwith 4/5 boys.
7. The learned trial Magistrate, after examining the evidence on record, convicted and sentenced Farman A.I, accused, and acquitted Yaseen, co-accused, as stated above.
8. At the very outset, the learned counsel for the appellant submitted that he shall only contend for the reduction of sentence and for setting aside of the fine imposed.
9. On the other hand, the learned counsel for the State submitted that the appellant has already been dealt with leniently by the learned trial Court and that, therefore, no interference is called for with the sentence of 5 years and the fine of Rs.1,000 or six months' R.I. In default thereof imposed on the appellant.
10. However, as the appellant has already suffered substantive part of his imprisonment and has further undergone the agony of protracted trial, and as the case is over seven years old, therefore, taking into consideration the facts and circumstances of the case, while maintaining the conviction of the appellant, the sentence imposed is hereby reduced to the period already undergone by him and bonds stand discharged.
11. In accordance with the terms stated above, the present criminal appeal is hereby dismissed.