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Criminal Appeal No. 594 of 1962, decided on 1st April 1963.

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---(Moon‑lit night; lighted road; evening time ; accused previously known)‑Witness had ample opportunity of recognising culprits.

S. 398 read with S. 34-- (Robbery)‑Section 398 applicable only to accused actually armed Rest of accused guilty under S. 392/511 where robbery is not complete‑Section 34 not applicable in relation to S. 398.

Abdul Majid Asghar for Appellants.

Khalid Mahmood Pasha for Respondent.

Date of hearing : 1st April 1963.

This is an appeal from the order of Mr. Muhammad Siddiq, Magistrate 1st Class with section 30 powers, Sialkot, dated the 6th of July 1962, convicting Muhammad Nawaz, aged 21 years, Muhammad Yusuf, aged 17 years, and Muhammad Hafeez, aged 18 years, under section 398/34, P. P. C. and sentencing them to seven years' rigorous imprisonment each, at the same time directing that as all the appellants are under 21 years of age, they should be detained in the Borstal Jail.

2. The prosecution case is that on the evening of the 15th of January 1962, Muhammad Latif (P. W. 1), who runs a fuel and dry‑fodder shop in Mori Gate, Sialkot, was returning to his well, where he resided, carrying on his person the proceeds of the shop for the day, amounting to Rs. 250. As he approached the Jinnah Park and left the Circular Road for the road leading to the well, he noticed the three appellants following him. Two of them, Muhammad Hafeez and Muhammad Yusuf, were known to him previously. The culprits then came up to him and Muhammad Nawaz, who was armed with a revolver, pointed it at the witness and threatened to kill him unless he produced the cash which he was carrying. Instead of complying, Muhammad Latif took to his heels and Muhammad Nawaz fired two shots at him, though the witness was unable to say whether they were directed towards him or in the air.

3. When he had gone about a hundred yards in the direction of his well he saw his brother‑in‑law Ismail (P. W. 2) and his brother Nur Husain (P. W. 5), who also lived at the well, approaching him. They shouted out that they were coming to his help, and Muhammad Hafeez and Muhammad Yusuf there upon ran away, while Muhammad Nawaz also made his escape into the Jinnah Park pursued by the witnesses, and eventually stood at bay near a tree, firing another three shots to keep his pursuers from attempting to capture him. Meanwhile, however, a police party consisting of Manzur Elahi Khan, A. S. I, 'C' Division, P. W. 3, three constables, and Sheikh Muhammad Ibrahim (P W. 9) came to the spot on hearing the shots. On seeing the A. S. I., Muhammad Nawaz pointed his revolver at him but Manzur Elahi Khan drew his own revolver and threatened to shoot the appellant dead unless he surrendered. Muhammad Nawaz raised his hands and was disarmed. He then tried to escape but was recaptured and in the course of the scuffle received some kicks and soti blows.

4. Four empty cartridges (Exhs. P. 2/1‑4) were found in the cylinder of the revolver, while another (Exh. P. 5) was later discovered at the spot by Saeed Ahmad, S. H. O. (P. W. 15), who arrived shortly after the A. S. I. and took over the investi gation. Saeed Ahmed also found a shoe (Exh. P. 3) lying near the railway line. After his arrest on the 16th of January, Muhammad Yusuf appellant led the S. H. O. and others to the place known as the Lal Kothi on the Circular Road and pointed out another shoe (Exh. P. 4), forming the pair to Exh. P. 3.

5. It may here be mentioned that a fourth person, Rafiq‑ul -Hasan, was captured by Rehmat Chowkidar (P. W. 4) in the garden of the District Health Officer, Sialkot, and was jointly challaned with the appellants. His version was that he had been easing himself and on hearing the sound of the firing ran into the garden for shelter. This story was apparently accepted by the learned Magistrate, who discharged him.

6. The appellants pleaded not guilty and produced six witnesses in defence. Jalal Din (P. W. 1) and Muhammad Husain (D. W. 2) testified to the arrest of Muhammad Yusuf appellant from his mohalla. According to Abdul Hamid (D W. 3), Muhammad Yusuf appellant gave a beating to Ismail P. W. Muhammad Din (D. W. 4), Muhammad Sharif (D. W. 5) and Haji Muhammad Abdullah (D. W. 6) gave Muhammad Nawaz appellant a good character and stated that he was arrested from his house at about 8‑30 p.m. The witnesses further deposed that there had been criminal litigation between Akbar, uncle of Muhammad Nawaz, and others of Muhammad Nawaz's family, and that Ismail P. W. is related to one Imam Din, a tenant of Akbar. Of these witnesses, Haji Muhammad Abdullah is the father of this appellant.

7. Taking first the case against Muhammad Nawaz, the evidence of Muhammad Latif P. W. is strongly corroborated by the fact that this appellant was captured at the spot in possession of the revolver Exh. P. 1. The defence allegation that Muhammad Nawaz has been falsely implicated at the instance of his uncle Akbar is not only in itself improbable but is further rebutted by the absence of any enmity between Muhammad Latif and Manzur Elahi Khan, A. S. I. on the one hand and Muhammad Nawaz on the other. I find no reason whatever to disbelieve the prosecution case as against this appellant.

8. So far as Muhammad Yusuf and Muhammad Hafeez are concerned, the defence made no attempt to challenge Muhammad Latif's statement that he knew them previously, and although there may be some substance in the argument of learned counsel for the defence that Ismail and Nur Husain did not have a full opportunity of identifying them, this objection does not apply to Muhammad Latif himself. According to his account the three appellants were following him, and when Muhammad Nawaz challenged him the other appellants were close‑by. It was a moon‑lit night and the Circular Road was lighted. Muhammad Latif had ample opportunity of recognising the culprits, and as against Muhammad Yusuf there is also the recovery of the shoe Exh. P. 3 near the spot and that of its fellow Exh. P. 4 at the instance of Muhammad Yusuf himself.

9. Taking all the evidence into consideration, I find it established that all three appellants took part in the attempted robbery of Muhammad Latif P. W., and Muhammad Nawaz was undoubtedly guilty of an offence under section 398, P. P. C. The sentence imposed by the learned Magistrate was the minimum prescribed by law. For reasons to be given presently, however, section 34, P. P. C. was wrongly applied by the learned Magistrate. Muhammad Nawaz's conviction is accordingly altered from section 398/34 to section 398, P. P. C. and with this modification his appeal is dismissed.

10. The case of the other two appellants stands on a different footing from the legal point of view. Section 398 is applicable only to the actual offender who is armed with a deadly weapon at the time of attempting to commit robbery or dacoity, and section 34 cannot be pressed into service. As Muhammad Yusuf and Muhammad Hafeez were unarmed, section 398 cannot be applied to their case, the offence of which they are proved guilty being one under section 392/511, P. P. C. I alter their convictions accordingly and reduce their sentences to three years' rigorous imprisonment each, their appeal being accepted to that extent.

11. If Muhammad Nawaz appellant comply with the neces sary requirements as to age, the order of the learned Magistrate that accused should be detained in the Borstal Jail is appropriate and is maintained.

A. H. Order accordingly.

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