Behram son of Muhammad Hassan caste Maisar, Baboo son of Muhammad Fazal caste Makrani, Muhammad Kareem son of. Muhammad Sharif caste Awan and Muhammad Ramzan alias Namoo son of Aziz Ahmed caste Abro have filed this appeal through Superintendent Central Jail Mach, challenging their conviction and sentence passed by the learned Sessions Judge Sibi Camp at Mach, whereby the appellants were convictedunder section 392, P.P.C. and were sentenced to undergo rigorous imprisonment for three years and fine of Rs,500 each, in default to undergo further S.I. for three months. The appellants were however extended the benefit of section 382-B, Cr.P.C.
2. Briefly the facts of the case as averred in the F.I.R. Exh.P./1-A lodged by Qurban Ali complainant P.W.1 at Police Station. Saddar Mach on 8-1-2000 are that on the said date at about 2-00 p.m., the complainant alongwith one Ali Awar was going towards Leez Gashtri, when they were way-laid near graveyard by the four accused, two of whom were armed with knives, who robbed him off Rs,1,000. The complainant immediately contacted the Naka-Bandi police, who gave hot pursuit to the accused and apprehended Muhammad Kareem and Baboo accused; while too others namely Behram and Ramzan were stated to have made good their escape.
3. The matter was then reported to S.I/S.H.O. Muhammad Hussain P.W.4 who after recording the F.I.R., resumed the investigation. He also arrested Behram accused the same day who got recovered Rs,500 and a knife at his instance, which were taken in possession vide memo Exh.P./3-A.
Ramzan accused was however subsequently arrested on 13-1-2000.
4. After completion of the investigation all the four accused were challaned to Court to face their trial.
5. The prosecution has produced four P.Ws. in all to prove the guilt of the appellants.
Qurban Ali complainant appeared as P. W.1, and reiterated the contents of the F.I.R. Exh.P./1-A . He - further disclosed that he was given a simple abrasion on his hand by the accused with knife. He however, explained in cross-examination that although the accused had muffled their faces yet their faces were visible. He then correctly identified the accused in Court. He refuted the suggestion that the accused were not the real culprits and he was making a false statement.
Nazir Ahmad P.W.2 deposed about the preparation of site plan, Exh.P./2-A by the S.I. at the spot which bear his signatures.
H.C. Muhammad Younis appeared as P.W.3 and deposed that Behram accused got recovered Rs,500 and a knife at his instance, which were taken in possession by the S.-I. S.H.O. vide memo.
Exh.P./3-A signed by him. He denied the suggestion that Behram accused had not led to any recovery and was falsely implicated.
S.-I./S.H.O. Muhammad Hussain appeared as P.W.4 and gave out the details of the investigation conducted by him, including the arrest of the accused and recovery therefrom. He also denied the suggestion that he has neither gone at the spot nor had investigated this case.
6. At the close of the prosecution evidence the accused were called upon to make statements under section 342, Cr.P.C. All of them denied the allegation put to them, and pleaded innocence.
None of them opted to appear as a witness of their own nor desired to produce any evidence in their defence.
7. After the completion of trial, learned trial Court assessed the evidence on record and convicted and sentenced the accused as aforesaid. Hence this appeal.
8. I have heard the learned counsel for the parties and have carefully gone through the record with their assistance.
9. Learned counsel for the appellant has mainly focused on the point that from the perusal. of the evidence of the prosecution witnesses, no offence under section 392, P.P.C. was made out, as there was nothing on record to disclose the fact that any of the accused had either used the weapon, so as to rob the complainant of his amount or to effect their escape from the spot after committing the alleged robbery. The bald statement of the complainant in the Court that the accused had given him a, minor injury at his hand by knife was neither substantiated by the medical evidence, nor it has appeared in the F.I.R. as such the same could conveniently be ignored being an after thought and baseless.
10.Learned counsel for the appellant however, frankly admitted that the evidence led by the prosecution was sufficient to warrant conviction of all the accused under section 382, P.P.C. which was much less an offence in gravity than section 392, P.P.C., as such it was prayed, that the sentence of the appellant who all were been agers and were previous non-convicts be reduced considerably. Reliance in this respect was placed on Rahim Bakhsh and others v. The State (PLD 1998 Karachi 118.
11.Learned counsel for the State on the other hand frankly conceded all the points raised by the defence and submitted that the appellants have already undergone more than one year of imprisonment and if considered appropriate, the same would meet the ends of justice in the circumstances of the case.
12. I have given my anxious consideration to the submission made by the learned counsel for the parties and have also gone through the case-law cited at the Bar.
13.In order to appreciate the contentions raised by the defence, it would be necessary to evaluate and assess the worth of the evidence relied on by the prosecution. I therefore, proceed to scrutinize the same carefully.
14. Qurban Ali complainant P.W.1 has reiterated the contents of the F.I.R. lodged by him immediately after the occurrence, in which he had disclosed the names of the all the four accused, who had robbed him of Rs,1,000 on knife point, two of whom namely Muhammad Kareem and Baboo, were arrested by Naka-Bandi police, by giving them hot pursuit, who had disclosed the name of other two co-accused as Behram and Ramzan who had made good their escape from the spot. He has also deposed that the accused had given a minor injury with knife on his hand.
15.He while under cross-examination clarified that although the accused were wearing Naqab, but their faces were visible. He also refuted the suggestion that the accused, who had robbed him- off, were not the accused present in Court, and that he was making a false statement.
16. The statement of the complainant got further support from the testimony furnished by Muhammad Younis P.W.3 and S.I. Muhammad Hussain P.W.4 who deposed about the arrest of Behram accused, and the recovery of knife and Rs,500 effected at his instance.
17. From the above resume of the evidence which has come forth from uninterested and independent witnesses who had no or previous enmity against the accused/appellants, it can safely be inferred that the prosecution has successfully proved its case, beyond reasonable doubt against the appellants who have been rightly convicted by the learned trial Court.
18.So far their conviction under section 392, P.P.C. is concerned, I feel that the same required interference by this Court, due to the weighty contentions raised by the defence, which stand duly, supported by the observation made by the learned Division Bench of the Karachi High Court in the case of Rahim Bakhsh etc. v. The State, cited supra which reads as under:- "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.C."
19. The facts of the case in hand being similar, rather less in gravity than the reported case, I feel constrained to observe that the offence committed by the appellants would also fall in the purview of section 382, P.P.C., as one of the accused in this case although was stated to have been armed with knife, and had caused a minor injury on the hand of the complainant, but the said fact do not find mention in the F.I.R. and was not substantiated by the medical evidence. As such it can safely be inferred that no such injury was given to the complainant by the accused either prior to the commission of theft or to carry away the property obtained by theft.
20. The upshot of the above discussion is that the learned trial Court has erred in law by holding the appellants guilty under section 392, P.P.C. I therefore, proceed to correct the same by converting the conviction of the appellant from section 392, P.P.C. to section 382, P.P.C. and reduce their sentence to that already undergone by them, which is stated to be more than one year.
21. The appellants shall however, be liable to pay fine of Rs,500 each, or in default, they will undergo S.I. for 3 months.
22. The benefit of section 382-B, Cr.P.C. shall remain intact.
Resultantly this appeal stands dismissed with the above modification in the conviction and sentence.