1995 P Cr (PLP)

NAZIR AHMAD BHATTI, CJ.

Complainant Haji Abdul Rashid, Levies Jumadar, Girdi Jungle submitted report to Naib-Tehsfdar, Chagai on 20-5-1992 wherein he disclosed that on 19-5-1992 at about 8-00 p.m., three unknown persons had blocked Posti Road near Girdi Jungle and had fired at Haji Oadir, Hanif and A6dullah Khan who were gqing from Gridi Jungle towards Zorecha/Posto in a vehicle and had snatched watches, cash and one .7 mm rifle alongwith 50 cartridges from them and had also injured Abdul Zahir son of Noroz Khan and Muhammad Rasool son of Mulla Haji Qadir. The Naib-Tehsildar recorded F.I.R. in Levies Station, Dalbandin and arrested accused Muhammad Gul on 21-5-1992 and accused Roshan on 24-5-1992. Accused Roshan made a confession on 22-6-1992 whereas accused Gul Muhammad made a confession on 23-6-1992.

2. After investigation both the accused were sent up for trial before Additional Sessions Judge, Quetta, who charged both of them under section 324, P.P.C. read with section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Both the accused pleaded not guilty to the charges and claimed trial. During the trial in all 5 prosecution witnesses were produced by the State. Both the accused made deposition under section 342, Cr.P.C. They also made deposition on oath but none of them produced any defence evidence.

3. After the conclusion of the t4al the learned Additional Sessions Judge, who was then seized with the matter, convicted both the appellants under section 394, P.P.C., read with section 17(3) of the Hudood Ordinance and sentenced each of them to undergo life imprisonment by judgment, dated 3-5-1994. Both the convicts have challenged their conviction and sentence by the appeal in hand.

4. P.W.2 Abdul Zahir had stated that on 19-5-1992 at about 8-00 p.m.. he was travelling in a Toyota Pick-up and was passing through Girdi Jungle to proceed to his home in Zorecha, Dalbandin, that three other persons were also travelling in the same Pick-up, who were his in-law relatives, that when they reached near a pass in the Jungle they were confronted by three persons including both the appellants, that the Pick-up was stopped by them and he opened the door, that appellant Roshan started firing Klashnikov shots with which he was injured on the right and left chest while some bullets passed by grazing his body, that appellant Roshan snatched Pakistani and Afghani currency from him and appellant Muhammad Gul and the other absconding accused snatched watches and cash from the other passengers of the Pick-up. P.W.3 Lai Muhammad corroborated the testimony of P.W.2 Abdul Zahir. He stated that he was travelling on his motor-cycle when he was stopped at the place of occurrence by appellant Roshan and both the appellants snatched valuables from the passengers of the vehicle and appellant Roshan also injured P.W.2 Abdul Zahir.

5. The confessional statements of both the appellants would also disclose that they had made a hold-up at the place of occurrence and had robbed the passengers of their valuables. Appellant Muhammad Gul had stated that he was carrying out search of the passengers when he heard the report of fire shots and came to know that his other companions had injured the passengers. Appellant Roshan had stated in his confessional statement that their third companion had started firing at the vehicle and had injured some passengers. The mere fact that the confessional statements were recorded after about a month of the arrest of both the appellants would not make them doubtful as the said statements are not only inculpatory but are also corroborated by independent and uninterested prosecution evidence of the witnesses who were A present at the spot and were victims of robbery. However, in their deposition under section 342, Cr.P.C. and on oath none of them admitted the occurrence and stated that they had been falsely implicated.

6. We have very minutely gone through the record of the case and have also heard learned counsel for the parties at length.

7. Enough evidence was brought on the record to show that both the appellants and the absconding had made a hold-up at the place of occurrence and had deprived the passengers of the Pick-up of their valuables by use of force but these victims were not caused any hurt or injury. So far as the testimony of P.W.2 Abdul Zahir is concerned, he deposed that he was injured by the firing of appellant Roshan but he did not produce any medical certificate to that effect. The other persons, who were deprived of the valuables, were not injured in the transaction. During investigation of P.W.3 Lai Muhammad had stated that the offence had been committed, by both the appellants and their third absconding co-accused which statement he repented during the trial. In the circumstances we are unable to accept the contention of the learned counsel for the appellants that they are not guilty and had not been duly identified. After taking into consideration the aforesaid circumstances we have come to the conclusion that the offence of robbery was proved against the C appellants beyond any doubt whatsoever. However, they were guilty under section 392, P.P.C.

8. Consequently we partly accept the appeal of both the appellants. We convict both of them for the offence under section 392, P.P.C. and sentence each of them to undergo rigorous imprisonment for 5 years and to pay a fine of D Rs.10,000 or in default to further undergo rigorous imprisonment for one year. Both the convicts shall also be entitled to the benefit of section 382-B, Cr.P.C. N.H.Q./927/FSC Order accordingly.