1. ABDUL HAMEED DOGAR, J.- Appellants Muhammad Anes Khan and Shahab Khan stand convicted and sentenced by the learned IV Addl. Sessions Judge, Karachi (South) under sections 307 & 435, PPC for 3 years and 2 years Rl/respectively and fine of Rs. 500/- each or in default whereof to undergo further R1 for one month more. The sentences were ordered to run concurrently.
2. The above judgment has been challenged in this appeal by the appellants.
3. The brief facts of the prosecution case are that on 24.11.1996 at about 10.15 p.m., when a mini bus bearing registration No. 873-710, being driven by complainant Rahman Shah arrived at Abyssinia Lines Bus Stop, 3 persons boarded and when the said bus reached at Out Lines area, the complainant was asked to stop the same. Two out of the 3 above mentioned persons caught hold of him and inflicted Churri injuries to him as well as to conductor Munir Ahmed. They also caused Churri injuries to some passengers and thereafter set the bus on fire by throwing some inflammable substance over it. The complainant, conductor and other injured persons were removed to the hospital for treatment.
4. PW SIP Mumtaz Malik of Saddar PS recorded the statement of complainant Rahman Shah under Section 154, Cr.P.C, in the hospital which was later on incorporated into FIR on 25.11.1996 at PS Saddar. The appellants and co-accused Nauman Jamil were arrested and after usual investigation a charge sheet was put up before the Court of law for trial.
5. The learned Trial Court framed the charge against the appellants and co- accused, to which they pleaded not guilty and claimed trial.
6. The prosecution examined complainant Rahman Shah, PW.
7. Munir Ahmad, PW Safdar Ali Khan, PW Inspector Mumtaz Malik, PW. Dr. Muhammad Iqbal, and the prosecution closed its side.
8. The appellants in their respective statements under Section 342, Cr.P.C, denied the case of prosecution and claimed to be innocent. They took the plea that they were victims of political rivalry. They neither examined themselves on oath nor led any evidence in defence.
9. The learned Trial Court framed the following points for determination:
(1) Whether on 24.11.1986 at or about 1015 p.m. In the night the accused had inflicted knife injuries to the complainant driver Rehman Shah conductor Munir Ahmed and passengers Mahboob Shah and Abdul Shah s/o Muhammad Ali of mini bus No. 873-710 with the common intention and knowledge under such circumstances that they could cause the death of the injured?
(2) Whether the accused had put mini bus No. 873-710 on fire by throwing and igniting a inflammable substance on the mini bus?
(3) What offence, if any, the accused have committed?
10. On the assessm ent of evidence the appellants were found guilty and were convicted and sentenced as above, whereas co-accused Nauman Jamil was acquitted.
11. I have heard Mr. Syed Azmat Shah, the learned counsel for the appellants and Mr. Ghulam Mustafa Lakho, the learned counsel appearing on behalf of the Advocate-General, Sindh, for the State.
12. It is mainly contended by the learned counsel for the appellants that the appellants have been falsely implicated in this case due to political rivalry by the policy and in fact they have not committed the alleged offence. According to him, the learned Trial Court has not appreciated the evidence while convicting them. According to him, the identification test of the appellants had not been held as such their subsequent involvement in the case is illegal and without justification.
13. On the other side, the learned counsel appearing on behalf of the State, vehemently opposed the above contentions and argued that the complainant and injured witness, namely, Munir Ahmed and PW Safdar Ali Khan have fully supported the case of prosecution and had correctly identified the appellants to be the persons who not only boarded in the bus but inflicted Churri blows to the complainant, PW Munir Ahmad and other two passengers, namely, Abdul Khalid and Mahboob Shah, According to him, the ocular evidence is fully supported by medical evidence as such the learned Trial Court has properly appreciated the evidence and has rightly convicted the appellants. He lastly contended that the PWs had correctly identified the appellants in the Court specifying them the particular role acted by them during the incident. Non-holding of identification test would not in any case wash the evidence of identification of the appellants in Court. In support of his contentions he has referred the case of Shaft Muhammad v. The State (P.L.D. 1971 Karachi 721).
14. The conviction of the appellants rests on the ocular testimony of injured complainant Rehman Shah, PW injured Munir Ahmed (conductor) and PW Safdar Ali Khan coupled with the medical evidence of Dr. Muhammad Iqbal. The complainant in his statement at trial has categorically stated that on the day of incident he was driving the above mentioned wagon with Munir Ahmad, its conductor and when the said wagon arrived at Abyssinia Lines bus stop, he was slapped by the appellants and they took out Churri and appellant Anes, present in Court, attempted to inflict him Churri blow on neck, but he raised his left hand resultantly his left had was cut. He again hit him another injury, by which also the same hand was cut. Thereafter he tried to speed away the vehicle but appellant Anes caught hold of his steering and then the vagon was parked aside and was ablazed.
15. The passengers of the wagon ran away, whereas conductor Munir Ahmed remained there who was caused Churri injuries by appellant Shabab Khan. In cross examination, he stated that one of the passengers had also received Churri injuries while he tried to intervene. His testimony has been fully supported by PW Munir Ahmed, who in his statement at trial had deposed that on the day of incident their Mazda wagon was coming from airport and when arrived at Abyssinia Lines Stop, it was stopped by the appellants and co-accused. Thereafter he as well as the complainant were attacked by Churri by the appellants Anes and Shabab Khan present in Court. He correctly pointed out that appellant Shabab Khan to be the person who inflicted him Churri blows. He correctly recognized the appellants Anes and Shabad Khan, to be the persons who caused him injuries whereas showed doubt with regard to co-accused Nauman Jamil. PW Safdar Ali Khan supported the version of complainant and the conductor and had stated that on the day of incident he was inside the wagon and when the same reached near Abyssinia Lines 3/4 persons boarded therein and then they attacked the driver and conductor with Churri. The witness identified both the appellants as well as the co-accused Nauman Jamil correctly, to be the said persons. Thereafter he acted as mashir. Of wardat as well as arrest of the appellants. This as well as the other two witnesses categorically stated that the appellants also burnt the wagon in their presence. Their statements have been fully corroborated by 10 Mumtaz Malik in his statement ...Recorded at trial.- PW Dr. Muhammad Iqbal has testified and had shown that the complainant had received two incised wound at the inguril fossa organts were protruding out. Injury was caused by sharp edged substance and was fresh in nature.
16. From the above discussion of the evidence, I am of the considered opinion that eye-witness account furnished by the injured witnesses and other PWs has been fully corroborated by medical evidence and there is no any doubt with regard to the case of prosecution being that of doubtful nature. The appellants have neither shown any enmity with the prosecution witnesses nor have suggested any questions that they were involved in the police due to political rivalry. They have neither examined themselves on oath nor have led any evidence in defence. As such there is no reason to disbelieve the prosecution witness. The contention that identification test was not held, as such the entire case of prosecution becomes doubtful has no force at this Court in the case of Shaft Muhammad v. The State (P.L.D. 1971 Karachi 732, has replied the same question and in paragraph 6 at page 724 has held that "this identification test of the appellant in Court, upon which his participation in the crime can be relied on and not his earlier identification in the. The latter is merely corroborative evidence and cannot be itself establish the identify of the appellant. It only goes to strengthen the identification of the appellant in Court.
17. For the forgoing reasons I am of the view that prosecution has full)' established the case against the appellants. Accordingly the appeal is dismissed, their conviction and sentence is maintained.
18. They are absent and are not attending the Court though NBWs have been issued, as such the learned Trial Court is directed to issued NBWs in order to procure their attendance. After arrest they should be remanded to judicial custody to serve out the sentence. They are, however, awarded benefit of section 382-B, Cr.P.C.