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Criminal Appeal No. 860 of 1965, decided on 3rd October 1968.

Ss. 394, 397 & 411‑No allega tion that at time of committing robbery or dacoity, accused used any deadly weapon or caused injury to any person‑Sections 394 & 397, held, not attracted, in circumstances of case‑Accused, however, found in possession of stolen property some hours after alleged theft‑Presumption that accused were either thieves or received‑such property knowing it to be stolen property‑Conviction under Ss. 394 & 397 altered to that under S. 411.

Dr. Tassadduque Hussain for Appellants.

Gulzar Hassan for the State.

Jehan, Sultan and Suleman sons of Mehar Khan, residents of Chak Awanwala, District Sargodha, have been convicted under section 394/397 of the Pakistan Penal Code and sentenced to seven years' rigorous imprisonment each, by order dated the 7th of December 1965 of Mr. Hidayat Ullah, Magistrate Ist Class, with powers under section 30 of the Code of Criminal Procedure.

2. The first information report lodged by Khan son of Hussain Bakhsh (P. W. 1) on the 16th of July 1965 at about 12 noon at Police Station Mankara, District Mianwali, disclosed that on the 15th of July 1965 at about dopehrwela, Sharif (P. W. 3) a boy of twelve years was grazing in the jungle a she camel worth Rs. 800.00 and a young one worth Rs. 200.00, when three persons who had muffled their faces, arrived there and took away the animals. Sharif rushed towards home and informed the complainant. Khan, Haq Nawaz, Ghulam Hassan, Ahmad Yar and Ali went in pursuit of the two stolen animals. On their way, they met Sikandar, Sharaf Din and Manzoor and told them about the incident who informed them in turn that an hour before, they had seen three persons taking away a camel and its young one. All of them, including Sikandar, Sharaf Din and Manzoor, went in pursuit and eventually approached the three appellants about five miles ahead. Sultan was armed with a knife whereas Jehan and Suleman had hatchets. They attacked Khan etc., and injured Sikandar, Manzoor and Sharaf Din. One Haq Nawaz was also caused serious injuries. Khan etc, were, however, able to capture the three appellants and the two animals. The three appellants who also received injuries during the scuffle, were handed over to Faizullah (P. W.) a foot‑constable, who had arrived by that time at the spot. The two animals were also given in custody of the constable. The motive, according to the complainant, was that about two months before the incident under discussion, Hussain Bakhsh, father of Khan (P. W.) had purchased a camel from Jehan appellant for Rs. 600.00 out of which Rs. 500.00 were paid in cash and the remaining amount of one hundred rupees was promised to be made good after a month. The camel proved to be defective and the request of Hussain Bakhsh for its return was not acceded to by Jehan, appellant. About a week before the occurrence, Jehan came to the complainant and demanded the remaining sum of one hundred rupees, which was refused by the complainant's father on the ground that there was some defect in the camel. According to the complainant, Jehan became furious and attempted to take away the complainant's animals.

3. In support of the fact that the she‑camel and its young one belonged to the complainant‑party, Khan, complainant produced the bahi, on the 19th of July 1965, wherein a receipt (Exh. P/4) was recorded. The receipt showed that one Naza of village Shahi had sold the disputed she‑camel with its young one to Khan for Rs. 800.00. The receipt was dated the 10th of February 1965 and was thumb‑marked by Sharaf Din as a marginal witness. Allah Ditta was its scribe.

4. Doctor Wajid Ali examined Sikander P. W., and found three incised wounds, two contusions and three abrasions on his person. One contusion was found on the person of Haq Nawaz including two incised wounds and an abrasion. Two incised wounds and a like number of contusions were found on the person of Sharaf Din.

The same doctor examined the appellants also and found a contusion and a bruise on the person of Suleman, two abrasions and a swelling on the person of Jehan and two swellings on the person of Sultan.

5. At the trial Khan (P. W. 1), Sharif (P. W. 2), Haq Nawaz (P. W. 3), Sharif Din (P. W. 4), Hussain (P. W. 10), Sikandar Hayat (P. W. 11), Manzoor (P. W. 12) and F. C. Faizullah (P. W. 15) supported the prosecution version, Naza, Sharaf Din and Allah Ditta P. Ws., supported the execution of the receipt dated the 10^th of February 1965.

6. The appellants denied the charge. Jehan, appellant, however, stated at the trial that he had sold a camel to Hussain, but since he could not manage the payment of the amount when demanded by the appellants, he gave them the disputed she‑camel and its young one. According to him, Khan was opposed to this bargain. When they were on their way to the village with the she‑camel and its young one, which they had taken from the house of Hussain in lieu of Rs. 800.00, Khan along with other P. Ws. attacked them, injured them and captured the cattle. They explained that the injuries caused to the complainant‑party were inflicted by them in their self‑defence.

7. It is proved beyond doubt that the accused party was taking away the two animals when they were overtaken by the complainant‑party. The complainant‑party was inflicted grievous injuries, with hatchets and knives. The ownership of the animals by Khan P. W., is also supported by the receipt, the execution of which was supported by the evidence of Naza, Allah Ditta and Sharaf Din, P. Ws. The prosecution has proved by the evidence of the witnesses that the animals were grazing in the jungle when they were taken away by three persons. The description of the two animals had been correctly recorded in the receipt.

8. Learned counsel appearing on behalf of the appellants argued that the receipt was false and had been concocted. The contention is devoid of force. I have perused the receipt. It is properly stamped, dated and thumb‑impressed. There are receipts executed before and after in point of time of the one under discussion. It is a part of a regular bahi. I have, therefore, no doubt about the genuineness of the receipt in question.

9. Learned counsel then submitted that there was delay in lodging the first information report and that the prosecution case, as laid down in the report was contradicted by the evidence of the witnesses recorded at the trial which cast doubt about the truth of the prosecution story. The facts that three persons were pursued by the complainant‑party; and an encounter took place between the three accused and the P. Ws., and that the two disputed animals were captured from the accused, are not denied by Jehan appellant. The recovery of the animals as well as of the weapons of offence is supported by the evidence of Faizullah, Foot Constable. The delay and any minor contradiction in the prosecution evidence will, therefore, not materially affect the merits of the prosecution case. The evidence produced in defence by the accused has not dislodged the case of the prosecution. Moreover, the defence version is not supported by any documentary evidence.

10. The point which engages my attention although not touched upon by Dr. Tassadduque Hussain, who appeared on behalf of the appellants, is whether the offence with which the appellants have been charged and convicted is covered by section 394/397, Pakistan Penal Code.

Section 394 of the Pakistan Penal Code applies to a situation where "any person, in committing or in attempting to commit robbery, voluntarily causes hurt." The provisions of section 397, P. P. C., are attracted to a case where the offender, "at the time of committing robbery or dacoity", "use any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person".

In the instant case, the prosecution case is that Sharif (P. W. 2) the minor boy was grazing the animals in the jungle when three persons armed with axes having muffled their faces took away the cattle. It is not the case of the prosecution that while committing or attempting to commit robbery, the appellants voluntarily caused injuries to any person. No injury was caused to Sharif P. W. There is also no allegation by the prosecution A that "at the time of committing robbery or dacoity", the appellants used any deadly weapon or caused any injury to any person, let alone the complainant‑party. The encounter admittedly took place far off the jungle from where the animals were taken away by three persons. Sections 394 and 397, P. P. C., in my view, are, therefore, not attracted.

The Police had originally challaned the accused under section 382/325/326, P. P. C. and, in my opinion, very rightly. But, there is another difficulty for the prosecution as regards the proof of this offence against the appellants. It is nowhere stated by Khan or the other prosecution witnesses that Sharif who was grazing the animals in the jungle had been able to disclose the identity of the persons who had stolen away the cattle. The prosecution case all along had been that they had muffled their faces. There is thus no evidence at all to support the version that it were the appellants who took away the animals from the jungle. Since, however, there is no dispute about the fact that the appellants were found in possession of the two stolen animals after some hours of the alleged theft and the same were recovered from them, it can legally be presumed that they were either thieves who stole away the two animals or had received the same as stolen property, knowing them, of course, to be stolen property. In the circumstances, section 411 of the Code will be attracted to the facts of this case. It provides: "whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." The conviction can, therefore, be altered to that under section 411 P. P. C.

As regards the offences under section 325/326, P. P. C., with which the accused were originally charged by the police, they are not the offences of the type as those under section 394/395, P. P. C. Moreover, no charge was framed against the appellants under section 325/326, P. P. C. The conviction of the appellants, therefore, cannot be altered from section 395/397, P. P. C. to those under section 325/326, P. P. C. As already stated, since no charge under section 325/326, P. P. C. was framed against the appellants, they can be deemed to have been acquitted of the same.

11. The appellants were convicted and sentenced on the 7th of December 1965. They have already undergone more than two years and a half. The maximum sentence that can be awarded under section 411, P. P. C., is three years. While altering the conviction of the appellants to that of an offence under section 411 of the Pakistan Penal Code, I would allow the appeal and direct that the sentence already undergone will be sufficient to meet the ends of justice. The appellants shall be released forthwith, if not required in any other case.

Appeal allowed.

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