' Sajjad Haider son of Shah Nawas and Muhammad Ritz son of Lal Khan stand convicted by Ch. Waheed-ud-Din Ahmed, Magistrate Section 30, Sheikhupura, under section 392/398, P. P. C. And sentenced each of them to undergo R. I. For a period of seven years on each count. However, the sentences have been ordered to run concurrently, ride his judgment dated 17-2-19:6. This appeal is directed against the aforesaid order of conviction and sentences.
2. Munshi Khan, P. W. 1, the complainant in this case, is a Taxi Driver. On the day of the incident, namely, the 15th of August 1972, his Taxi Car No. I. R. 7452 was pinked near the Park Hotel, McLeod Road, Lahore, when at shout 8-45 p.m. Two persons whose names were subsequently discovered to be Sajjad Haider and Muhammad Riaz (the appellants herein) and a child of about twelve years old, approached him to take them to the Fertilizer Factory on Sheikhupura Road. The fare of the journey was settled at Rs.
25. Accordingly these persons i.e., the appellants, boarded the taxi car and the complainant drove them towards the Fertilizer Factory. When they reached near the Factory, the appellants asked the complainant to prcceed on. At about 9-30 p.m. When they reached near the Sem Nola Bridge, on the Sheikhupura Road,. Sajjad Haider appellant suddenly took out a revolver which was wrapped in a piece of cloth (safa) and placed it against the neck of the complainant and asked him to stop the taxi car. He accordingly stopped the taxi car. A shot was fired at him by Sajjad Balder, but it missed him. The complainant quickly got down from the taxi car. Sajjad Haider came after him and demanded the keys of the taxi car and thereafter fired three further shots one after the other but fortunately these also missed him and he escaped. Sajjad Haider appellant snatched the keys from him and handed them over to his co-accused Muhammad Riaz and told him to sit on the seat behind the steering wheel. Sajjad Haider appellant also sat in the taxi-car and they decamped with the car. In the meantime, a bus of Shera Transport Company came from behind, from the Lahore side, which he boarded. When the bus reached Chowk Pir Bahar Shah, Sheikhupura, the complainant observed that the Police and the public had taken the appellants and the taxi car into custody. He identified both of them as well as his taxi car. On the basis of the above statement a case under section 392, P. P. C. Was registered against the appellants.
3. The story as to how the car and the appellants were taken into custody at Chowk Pir Balm Shah, Sheikhupura, appears from the statements of Nasim-uz-Zaman (P. W. 2) and Abdul Rashid (P. W.
3%. According to these witnesses they were present at about 10 p.m. On 15-8,1972 in Chowk Pir Bahar Shah when they saw taxi car No. LR. 7452 coining from the side of Lahore. The driver had no control on the steering and on reaching the side Chowk the taxi car took a turn towards the side of Oujranwala Road after striking against some drums which were lying on the road. It also struck against some chairs lying outside the hotel (Shahbaz Hotel) of one Maulvi Rehmat All and in this way the car stopped. The Police rushed to the scene of occurrence and the witnesses also went there. The appellants emerged from the car. Muhammad Riaz appellant was at the steering and the Police arrested him. On conducting the search of Sajjad appellant the Police recovered revolver Exh. P. 1 loaded with five rounds Exhs. P. 2/1 to 5. It also recovered sounds Exhs. P. 3/11-10 from the chest pocket of the shirt of Sajjad appellant. Parna Ebb. P. 4 was also recovered.
4. After the close of the prosecution evidence a charge was framed against the appellants under section 392/398, P. P. C. The appellants pleaded not guilty to the charge. In their statements under section 342, Cr. P. C. The answer to the question that on 15.8-1972 at 1-30 a.m. They had, in the area of Sem Nala Bridge, Lahore-Sargodha Road, Shoikhupura, robbed Munsbi Khan P. W. 1 and also took away his taxi car and also fired from their unlicenced revolver, was denied. Their version was given in answer to the question wherein they were asked why this case was registered against them namely, that they had hired the taxi from Munshi Khan (P. W. 1) but when they reached near Sheikhupura, the driver demanded excessive fare and on this issue a quarrel occurred and they beat up the driver as a result of which the car got out of control and struck against some drums lying on the road. As the Thrnedar of the area was known to the complainant, a false case of robbery was registered against them. Muhammad Tufail, one of the persons injured when the car struck against the chairs near Shahbaz Hotel, appeared as a defence witness and supported the case of the appellants.
5. The learned trial Magistrate was of the view that the case of the prosecution stood established. In this connection he pointed out that the witnesses of the prosecution had no enmity against the appellants and hence had no motive for falsely implicating them. There was, therefore, no reason to disbelieve their testimony. He pointed out that the appellants had admitted that they had quarrelled with Munshi Khan P. W. 1 on the issue of the faro and in this manner the car got out of control and met with an accident near Chowk Pir Behar Shah and were arrested by the Police. The evidence of Muhammad Tufail D. W. Was considered to be of no consequence and was unworthy of reliance. He, accordingly, found that the appellants had committed robbery on the highway.
Since one of the appellants, namely, Sajjad Haider, was armed with a revolver along with fifteen cartridges, he convicted the appellants under section 392/398, P. P. C. And sentenced them to undergo R. I. For a period of seven years on each count. However, the sentences were ordered to run concurrently. The revolves along with the bullets was ordered to be confiscated to the State and the taxi-car was ordered to be returned to the original owner.
6. I have gone through the evidence on the record. P. W. 1 Munshi Khan has narrated how the appellants robbed him of the taxi car. P. W. 2 Nasim-uz-Zaman and P. W. 3 Abdul Rashid furnished the details of how the taxi car came to a halt in Chowk Pir Bahar Shah and the appellants came out and were apprehended and the revolver and the bullets recovered. They attested the recoveries, Abdul Rashid Khan (P. W. 4), A. S. I. Recorded F. I. R. Exh. PA/1. Muhammad Aslam (P. W. 5) deposed that he was injured by a car which struck him when he was standing in Chowk Pir Behar Shah. It was coming from the Lahore side. He became unconscious. P. W. 6 Fazal Hussain S. Is the investigating officer. The other important witness in the case is Muhammad Tufail who appeared for the defence.
7. In support of their appeal, the learned counsel for the appellants argued that the version given by P. W. 1 Munshi Khan in his statement in the Court is different from the version narrated by him in the F. I. R. The place where the accused/appellants robbed him of the taxi car at revolver point was mentioned as Sem Nala Bridge, Sheikhupura Road, in the F. I. R. However, according to his statement made before the learned Magistrate, in his cross-examination, Munshi Khan P. W. Stated that the occurrence had taken place between Daood Hercules Factory and Khanpur Canal Bridge.
This place is at a distance of about eight miles from the Police Station, Sheikhupura (as per statement of the Investigation Officer during the course of his cross-examination). Thus it is submitted that the place of occurrence has not been established. The learned counsel further argued that the story of the prosecution is unbelievable because according to Munshi Khan P. W.
1. Sajjad Haider appellant had fired five shots at him from a very close range, including the shot which he fired while he fired while sitting in the taxi car. There is, however, no mark of injury on his person. It shows that the entire story about Sajjad Haider appellant having used a fire-arm and fired with it on the complainant is concocted. In this connection it is pointed ont that if five shots were fired then there should have been only one live bullet in the chamber of the revolver, whereas at the time of recovery five live bullets were found therein, which also belies the incident of robbery.
Furthermore, the revolver was never sent to the Ballistic Expert who could have certified that it was in fact ever used or not. The lack of such a corroborative evidence goes adversely against the prosecution. It is further argued that the natural witnesses regarding the arrest of the accused/appellants were Maulvi Rehmat Ali, owner of the Hotel, Muhammad Tufail and Muhammad Aslam. The prosecution withheld Rehmat Ali and Muhammad Tufail, and although Muhammad Agana was produced at the trial, he has deposed nothing with regard to the circumstances in which the accused were arrested but has only deposed that he was struck by the car and fell down on the ground, as a result of which he was injured and was taken to the Hospital from the place of occurrence. The other injured witness, Muhammad Tufail, was produced by the defence and he has supported the version of the appellants. The two witnesses produced, Nasim- uz-Zaman (P. W. 2) and Abdul Rashid (P. W. 3) are chance witnesses and had no particular reason to be at the spot at 10 p.m. In the night. He has also argued that Muhammad Tufail D. W. 1 was not cross-examined, although an opportunity was afforded to the prosecution to cross-examine him.
His evidence, therefore, remains unchallenged and in law it will be presumed to be accepted by the prosecution (See 1974 P Cr. L J 537). The learned counsel also submitted that in his cross- examination Munshi Khan had admitted that he narrated the incident to the Police in Chowk Pir Bahar Shah verbally though his statement was not recorded there and that the pacca statement was recorded only in the Police Station. This further strengthens the case of the defence that the appellants were falsely implicated and the case against them was concocted. The learned counsel also pointed out that according to the allegation against them, as put to them by the learned Magistrate in their examination under section 342, Cr. P. C. The occurrence was shown to have taken place at 1-30 a.m whereas the evidence showed that the incident took place at 9-30 p.m.
This shows that the learned trial Court had not applied its mind to the evidence on the record. In these circumstances, they were entitled to acquittal or at least they were entitled to the benefit of doubt.
8. There is some force in these submissions, but the criticism made by the learned counsel for the appellants does not, however, affect the essential features of the prosecution case. There is no dispute that the taxi car was hired by the appellants and that Munshi Khan taxi driver did not know the appellants before and had no animus against them: that the taxi car came to halt near Chowk Pir Behar Shah when it had gone out of control and struck against Hotel Shahbaz The only point worthy of consideration is as to who was driving the taxi car when it came to a halt. The ven ion of Munshi Khan (P. W. 1) is that he was forced out of the taxi car on the highway at pistol point and the keys were snatched from him and the car was robbed. This version is corroborated by the statements of Nasimuz-Zaman (P. W. 2) and Abdul Rashid (P. W. 3) that when the car came to a stop, it was Muhammad Riaz appellant who was found behind the steering and that Sajjad Haider appellant was sitting with him and he came out from the other door of the car. The said witnesses are quite independent. They also cannot be described as chance witnesses, because they reside in the locality and could be present at the spot quite normally. They bear no animus against the appellants and have never appeared as witnesses for the police in any previous case and are not, therefore, stock witnesses. Consequently there is no reason why they should depose against them.
They have attested the recoveries of the revolvers, bullets and Parna and nothing has been brought on the record to discredit their testimony. The version of the appellants that there was some quarrel over the fare between them and Munshi Khan complainant which led to the accident is on the face of it, unbelievable, because if any such quarrel had taken place it must have taken place after the appellants had reached their destination and the opportunity for settling the account had arrived. No doubt, the evidence of Muhammad Tufail who was admittedly injured when the taxi-car struck against him and Muhammad Asians supports the version of the defence, but this evidence is intrinsically unbelievable. Moyeoyer, Muhammad Tufail (D. W. 1) has deposed that Munshi Khan (P. W. 1) w as demanding Rs. 100 while the appellants were prepared to pay Rs.
60, details of which version have even not been put forth as such by the appellants themselves.
According to the appellants this quarrel had taken place in the taxi car which resulted in the car getting out of control, which led to the accident. Since Muhammad Tufail (D. W. 1) was not sitting in the Taxi car, he could not have known the details of the quarrel. Therefore. Notwithstanding the fact that the statement of Muhammad Tufail D. W. Has not been challenged through cross- examination, it cannot be accepted as truthful, in view of its inherent defects. So far as the examination of the appellants by the learned Magistrate under section 342, Cr. P. C. Is concerned, an erroneous mention of the time of the incident has not prejudiced their case. Hence the said error is not material 8-A. As for the argument that the revolver was not sent to the Ballistic Expert in order to ascertain whether it was actually fired or not, suffice it to say that the recovery of the revolver along with the rounds of ammunition from the person of Sajjad Haider appellant shows that Sajjad Haider was armed with a revolver. There is no reason why Munshi Khan''s statement should not be believed that he threatened him with it and that he was made to surrender the car under the said threat.
The offence under section 392, P. P. C., is therefore, established. There is, however, force in the argument that the circumstance that Munshi Khan P. W. Escaped although five shots were fired at him, one of which was fired while he was still inside the car, shows that this part of his statement is doubtful. The absence of the evidence of the Ballistic Expert on the point whether any bullet was fired from th revolver strengthens the said doubt. But for a conviction under section 398, P. P. C. It Is enough if the offender is armed with a deadly weapon. There is no room to doubt that Sajjad Haider appellant was armed with a revolver, which is a deadly weapon.
10. The case of the prosecution stands fully established on both counts, so far as Sajjad Haider appellant is concerned. However, the role of Muhammad Riaz appellant is that of a junior partner.
Although he did accompany Sajjad Haider appellant and shared his intention to commit robbery, he was not armed with any fire-arm. He, therefore, does not appear to be guilty of the offence under section 398, P. P. C. But the charge under section 392, P. P. C. Fully stands established against him. 1, therefore, dismis the appeal of Sajjad Haider appellant to toto, but accept the appeal of Muhammad Riaz appellant to the extent that his conviction and sentence under section 398, P. P. C.
Will be set aside. However, his conviction under section 392, P. P. C. Is maintained, but his sentence is reduced to four years' R. I. {{BLUR PAGE}}