' RANA BHAGWAN DAS, J.---This appeal is directed against the judgment and conviction dated 15-1- 1995 passed by learned Judge, Special Court for Suppression of Terrorist Activities, Larkana convicting the appellants under section 392 read with section 398, P.P.0 and sentencing each of the appellants to undergo R.I for seven years and to pay a fine of Rs,10,000 each or in default to suffer further R.I for one year.
2. Prosecution case in brief is that on 1-3-1994 first informant Syed Mahboob Ali Shah was fast asleep along with his employee P.W Arbab Ali at his Poultry Farm after parking his motorcycle No,LAA-3511 when at about 12-00 mid-night he woke up on noticing some commotion and found the appellants inside the place of his business, a portion also used as a place for his dwelling.
According to him appellants Rahim Bux and Hakim Ali were armed with Klashnikovs whereas appellant Miro was carrying a single-barrel shotgun with him. It is the case of the first informant that the appellants committed the robbery of motorcycle after cutting the Iron grill of a window on the southern side. After the departure of the appellants he raised an alarm which attracted P.Ws.
Ashique Ali Shah, Muhammad Jurial and others who noticed the appellants taking away his motorcycle. As the appellants were already known to the first informant, on the next day he approached their elders with a request for return of the motorcycle who kept him on false promises. Receiving no positive response from the elders of the appellants he was constrained to lodge the report at Police Station Kamber on 9-3-1994.
3. After the registration of the F.I.R. S.H.O. Gul Hassan Larik, prepared a memo. Of formal arrest of appellants Rahim Bux and Hakim Ali who were already lodged at the Police Station in custody in some other crime. He inspected the place of incident at the pointation of the first informant in presence of Mashirs Mumtaz Ali and Ghulam Raza and prepared a memo. He recorded the statements of P.Ws. Ashique Ali Shah, Muhammad Jurial and Arbab Ali. On 11-3-1994 he arrested appellant Miro alias Mir Hassan from village Saeed Ali Chandio in presence of same Mashirs who acted as Mashirs of Vardat. During the course of interrogation this appellant volunteered to produce the crime property which was, recovered from his house at his pointation in presence of H.0 Imdad Ali and P.C. Mukhtiar Ali. Subsequently he got recorded statements of witnesses before a Magistrate at Kamber and sent up the appellants for trial.
4. At the trial appellants were charged under section 392 read with section 398, P.P.C.' to which they pleaded not guilty. In support of the case, prosecution examined Syed Mahboob Ali Shah P.W.1, Haji Arbab P.W.2 Muhammad Jurial P.W.3, Mashir Mumtaz Ali P.W.4, Mashir Mukhtiar Ali P.W.5, Mashir Imdad Ali P.W.6, Syed Ashique Ali P.W.7 and S.H.O. Gul Hassan P.W.8.
5. In their respective statements each of the appellants denied the allegations against them and pleaded that the witnesses were interested and hostile. They had deposed at the instance of S.H.O.
Appellant Miro denied his arrest from his village as well as the pointation of motorcycle, the property involved in this crime and alleged that he was arrested from a sugarcane juice shop at Kamber.
' No evidence in defence, however, was adduced.
6. On assessm ent of the evidence on record learned trial Court found the appellants guilty of the charge and convicted and sentenced them as aforesaid. It is against the judgment and conviction that the appellants have approached this Court.
7. At the hearing, learned counsel appearing in support of the appeal raised the following contentions:
(i) That the prosecution failed to make out a case of robbery within the purview of section 392, P.P.C. And the trial Court acted illegally by not awarding separate sentences under sections 392 and 398, P.P.C. Respectively.
(ii) That the prosecution case is false, concocted, unbelievable inasmuch as 'the. F.I.R. Was belated by nine days whereas recovery of motorcycle at the instance of appellant Miro was highly doubtful.
(iii) That even the trial Court was not certain about the date of incident and the charge against the appellants is vague, defective and uncertain.
8. On the other hand, learned State Counsel fully supported the impugned judgment and contended that the appellants not only committed criminal trespass by night in the Poultry Farm of the first informant used as human dwelling but also by breaking open the grill of the window and show of lethal weapons attempted to cause the death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint to the first informant.
9. Dealing with the first contention of the learned counsel vehemently urging that the prosecution failed to make out a case of robbery as defined in law or that the trial Court acted illegally by not awarding separate sentences under sections 392 and 398, P.P.C., it would be appropriate to refer to the definition of 'robbery' as given in section 390 Pakistan Penal Code which reads as under:-
390. Robbery.--In all robbery there is either theft or extortion.
When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person, or to some other person, and, by so putting in fear, he induces person so put in fear then and there to deliver up the thing extorted.
Explanation. --The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
On plain perusal of the definition of the offence referred hereinabove, we are of the view that the appellants were, undoubtedly, armed with deadly weapons and they dishonestly removed the motor cycle of the first informant at odd hours by show of force but evidence is completely silent whether for achieving the object or committing the theft or in carrying away the property obtained by theft they caused or attempted to cause to any person death or hurt or wrongful restraint.
Indeed, there is not an iota of evidence to suggest that any of the appellants used or attempted to use the weapons carried by each of them. In our view, evidence on the record reflects the commission of an offence falling within the mischief of section 382, P.P.C. Which reads as under: --
382. Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft.--Whoever commits theft, having made preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
10. From the evidence of the first informant and another witness of the incident namely Haji Arbab Ali and other attending circumstances, we are inclined to believe that the appellants came fully prepared for causing death or hurt or restraint or fear of death or of hurt or of restraint whosoever resisted their act of committing theft. Needless to observe first informant and the sole witness available in the dwelling premises were completely taken aback in the odd hours of night and there was the least resistance from their side as obviously they were without any arm and helpless.
On scrutiny of evidence on record, it seems just and proper to conclude that the intention of the appellants behind carrying such deadly weapons was to commit the offence of theft and to cause bodily harm in the event of any anticipated scuffle or in order to effecting of their escape after the commission of the theft or in order to the retaining of the property obtained by such theft.
Illustration (a) to section 382, P.P.C. Fully supports our view and possibly there can be no exception to the view taken by us. The act of the appellants, thus, would fall within the ambit of section 382, P.
P.0 .
11. Having held above, we proceed to examine whether the Trial Court committed any illegality by not awarding separate sentence under section 398, P.P.C. In fact, this provision of law does not create any substantive offence. It simply provides that if any member of a gang of dacoits is armed with a lethal weapon during an attempt of commission of dacoity such member is to suffer minimum imprisonment of seven years. In law, no separate sentence is warranted by reason of this section which simply places a restraint on the power of the Court not to award sentence of less than seven years on conviction in cases of attempt to commit robbery or dacoity when an offender is armed with any deadly weapon.
12. It may, however, be pertinent to observe that section 398, P.P.C. Is applicable only to the case of an attempt to commit robbery and has hardly any application to a case in which robbery has actually been committed. Learned Trial Court, therefore, committed an error of law by holding that the appellants committed the offence of robbery within the meaning of section 392 read with section 398, P.P.C. In case the finding was that actual act of robbery was committed, section 398, P.P.C. Would not apply in such circumstance. Refer AIR 1932 Oudh 103. For the aforesaid reasons, we hold that the offence committed by the appellants shall attract the provisions of section 382, P.P.C.
And not section 392 read with section 398, P.P.C.
13. Adverting to the second contention, we find no substance when the learned counsel submits that the prosecution case on the face of it is false, concocted and unbelievable for the reason that the. F.I.R. Was lodged after a lapse of nine days. No inherent defect or infirmity in the evidence has been pointed out to justify such inference. Prosecution witnesses have stood the test of lengthy cross-examination but their veracity remained unimpeachable. Mere circumstance that Haji Arbab Ali was employed with first informant would not detract from the fact that he was speaking the truth. As regards the delay, suffice to say, witnesses are consistent in their statements that the first informant accompanied by Haji Arbab Ali had approached the elders of the appellants for return of the motorcycle who had promised to do so but later they did not fulfill their commitment. In the circumstances, first informant has satisfactorily explained for the delay in lodging the report with the police which is plausible and convincing. At any event, there is no circumstance to accept the contention that the appellants were falsely implicated instead of real offenders. Indeed, there is no apparent strong reason and motive of substitution of the real offenders by the present appellants.
14. We also find no merit in the contention that the trial Court was not certain about the date of incident. Evidence on record is adequate, satisfactory and enough to warrant a finding that the incident took place as alleged whereas the report of the incident was filed on 9-3-1994 with local police. There is neither any ambiguity nor uncertainty about the commission of crime by the appellants. Minor discrepancies in evidence relating to lodging of report do not render the prosecution case unworthy of credence.
15. For the aforesaid facts and reasons, we are inclined to dismiss the appeal but modify the conviction from section 392 read with section 398, P.P.C. To section 382, P.P.C. And reduce the sentence to rigourous imprisonment for three years. The sentence of fine and imprisonment in default is however maintained.