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Criminal Appeal No. 6 of 1950, decided on 27th March, 1950, from the order of the Sessions Judge, Quetta, dated 10^th January, 1950.

S. 235 -Attacking complainant with knife and robbing his cash‑box Same transaction.

Attacking the complainant in broad day‑light and immediately robbing his cash‑box indicate a continuity in the act and one part of accused's action cannot be divorced from the other.

This is an appeal by convict Akbar Shah against the judgment of the learned Sessions Judge in Baluchistan, dated 10th January, 1950, whereby he sentenced the appellant to five years rigorous imprisonment and a fine of Rs. 200, or in default six months' further rigorous imprisonment for the offence of robbery as defined in section 390, Pakistan Penal Code.

The facts of the case have been clearly stated in the judgment of the Lower Court and need not be reiterated in full. Very briefly, however, the convict‑appellant, who is a butcher of Quetta, is alleged to have entered the New Mutton Market on London Street, Quetta at about 2‑30 p.m. on 20th February. 1949. He attacked the complainant (Muhammad Sharif) with a knife and subsequently, after the complainant had run away, he re‑entered the Mutton Market where he immediately went to the cash box of the complainant and. broke it open and stole money from it.

The main grounds for appeal in This case are that two distinct and separate offences have been committed, the combination of which should not be classified as robbery as defined in section 390 of Pakistan Penal Code. In this respect I am not disposed to agree with the learned counsel for the appellant. It is clear from the evidence on record as well as from the judgment of the learned Sessions judge that the two acts commit red by the appellant in both attacking the complainant in broad day‑light and immediately robbing his cash‑box indicate a continuity in the act and one part of his action cannot therefore be divorced from the other. The evidence in this case is abundantly clear and there is no reason to disbelieve it. The learned counsel for the appellant has, however, further argued that' there are discrepancies in the statements of certain of the prosecution witnesses, namely P. Ws. 1, 2 and 3. He further argues that the convict‑appellant had no intention of committing theft and that the case is fabricated against the appellant for the reason that there was previous enmity between the parties. He further contends that, if as has been alleged, the appellant had extorted money on previous occasion, a report should have been made to the Police but no such report was made.

'In regard to the first part of the argument for the appellant, I can find no serious discrepancies in the evidence of the three witnesses referred to above which would lead me to believe that they were not telling substantially the truth. Minor discrepancies are not such as to discard the evidence of witnesses unless they are of such a serious nature as to make the whole of their evidence unreliable.

As regards the allegation that the appellant never intended to commit theft, there can be no argument on this point. The evidence clearly indicates that the appellant did in fact commit theft. The question of intention therefore does not arise.

As for the allegation that the previous cases of extortions were not reported to the Police, this appears tome to be irrelevant to the case before me. The complainant if he so wished, could have reported such cases but his failure to do so does not in any manner affect the case before me and is no particular defence in favour of the appellant.

A further argument produced by the learned counsel for the appellant is to the effect that Channa, that tongs‑driver, who was present‑at the spot, was not called as a witness by the prosecution. I observe from the record that Channa was made a co‑accused who was ultimately discharged. Apart from this fact, there is no compulsion on the prosecution to produce witnesses if they do not wish to do so and if this particular person had any evidence to offer in favour of the defence he could have been called as a 'defence witness. The presumption therefore it; that his evidence was either negative or that because he had at one time been a co‑accused, he was not called as a Prosecution witness. I there fore am not disposed to accept the arguments adduced before me on behalf of the appellant.

As I have already stated above the act of the appellant was one of robbery and no other interpretation of his action is possible. It remains therefore for me to see whether, the sentence imposed was, in the circumstances of the case, excessive or not. The facts, which have been proved, indicate that the appellant not only attacked the complainant with a dangerous weapon but also immediately proceeded to rob his cash‑box after he had run away. It can be considered fortunate for the complainant that he was not seriously injured or indeed that he was not killed in affray, and I cannot, in any circumstances, take a. lenient view of such an unprovoked and wanton assault on a member of the public by a person with a dangerous weapon. In my opinion therefore, the learned Sessions judge has taken a correct view of the facts before him and that the sentence, which he has passed, is by no means excessive. It follows therefore that the appeal is dismissed and the sentence passed against the convict‑appellant is upheld.

K.M.A. Appeal dismissed.

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