ASGHAR KHAN Versus STATE

Through this appeal Asghar Khan (22 years), son of Muhammad Afzal, Wajid Ullah (17 years), son of Manzoor Hussain Khan and Sajjad Ahmad (26 years), son of Sultan Ahmad, Pathans by caste, cultivators, residents of Mochh, Tehsil and District Mianwali, impugn the validity of the ju4ment of the learned Additional Sessions Judge, Mianwafi, dated the 25th June, 1992, whereby they were convicted and sentenced as follows:--

(a) under section 186 of the Pakistan Penal Code to three months rigorous imprisonment;

(b) under section 225 of the Pakistan Penal Code to two years' rigorous imprisonment and a fine of Rs.5,000 failure to pay which was to entail sufferance of additional rigorous imprisonment for three months and

(c) under section 353 of the Pakistan Penal Code to two years' rigorous imprisonment and a fine of Rs.5,000 and in default of payment thereof to further rigorous imprisonment for three months.

The sentences were directed by the learned trial Court to run consecutively. The appellants were given benefit of the provisions of section 382-B of the Code of Criminal Procedure for the purpose of adjustment of the period of their detention during trial of the case against the term of sentence of imprisonment. The appellants' co-accused, Ayub Khan and Muhammad Anwar Khan who were convicted alongwith the appellants of the commission of offence punishable under section 353 of the Pakistan Penal Code and were awarded the same punishment as was imposed upon the appellants in respect of their conviction on the aforesaid count, have not chosen to prefer appeal to this Court against the impugned decision.

2. The incident which gave rise to the setting-up of the case against the appellants and others resulting in their conviction, as narrated by Abdur Razzaq, P.W.1, in first information report, Exh.PA., that he lodged with the police on the 8th November, 1989 at about mid-day, took place after the following fashion. At about 11-00 a.m., on the 8th November, 1989, a police escort comprising of Muhammad Hayat, Assistant Sub-Inspector of Police, P.W.2, Rafi Ullah and Habib Ullah, Police Constables, accompanied Ayub Khan and Muhammad Anwar Khan, the appellants' co-convicts, who had been arrested for the commission of offence relating to narcotics, in police van bearing No MI-9377, driven by Abdur Razzaq, P.W.1, from Mochh on way to Mianwali for producing them before a Court and securing their remand into custody. When the van slowed down while taking turn at Dandi Mor within the area of village Dandi the appellants and one Farooq variously armed appeared before the van and made it stop over there. While Wajid Ullah had rifle his other three companions were equipped with a pistol each. Asghar Khan fired a shot which hit the tyre of the rear wheel of the van. The tyre was punctured. Farooq also fired a shot but it did not hit anyone. Wajid Ullah threatened that if anyone offered resistance he would be killed. Ayub Khan and Muhammad Anwar Khan snatched away rifle from Rafi Ullah, Constable and took away key of the handcuffs from Habib Ullah, Constable. Ayub Khan and Muhammad Anwar Khan made good their escape, Muhammad Hayat, Assistant Sub-Inspector of Police, Rafi Ullah and Habib Ullah, Constables offered no resistance. It was about half an hour thereafter that Hayat Ullah contacted police station through wireless and Abdul Ghafoor, Sub-Inspector of Police and Station Houce Officer, Police Station Mochh, P.W.8, rushed to the spot. He took down Abdur Razzaq's statement, Exh.PA., which constitutes the first information report and on its basis case against the appellants and their co-accused was registered at Police Station Mochh.

3. Abdul Ghafoor, P.W.8, arrested Asghar Khan (appellant 1) and Wajid Ullah (appellant 2), on the 15th November 1989. Farooq was apprehended by Abdul Ghafoor on the 20th November, 1989. Ayub Khan and Muhammad Anwar Khan surrendered before Abdul Ghafoor on the 3rd December, 1989. Sajjad Ahmad (appellant 3) was taken into custody by Muhammad Aslam, Inspector of Police and Station House Officer, Police Station Mochh, P.W.9, who succeeded Abdul Ghafoor, P.W.8, on the 3rd December, 1989. Farooq later on absconded and was declared a proclaimed offender. 'He has not since been brought to book.

4. It may be mentioned that Muhammad Hayat, Assistant Sub-Inspector of Police, Rafi UM and Habib Ullah, Constables, were separately tried on the charge of commission of offence punishable under section 222 of the Pakistan Penal Code. They were convicted of the commission of offence punishable under section 223 of the Pakistan Penal Code and were duly sentenced. The conviction of Muhammad Hayat has been upheld by the Lahore High Court which dismissed his appeal though reduced his sentence. Rafi Ullah and Habib Ullah preferred appeal to this Court but since it was entertainable by the Lahore High Court the appeal was returned to them.

5. The appellants denied point-blank their association with commission of crime. In their examination by the Court they stated that case had been set up against them due to enmity. However, nothing touching the alleged enmity was even remotely suggested to any of the prosecution witnesses. The excuse is patently baseless. They did not like to examine themselves on oath. Only Wajid Ullah expressed his desire to produce evidence in defence. One Abdur Rahman, D.W.1, appeared to say that no occurrence had taken place. However, his evidence is of no value. He does not own any agricultural land in the village within whose area the incident took place. He is just a labourer and does labour work wherever he finds it. He admitted of going out to do labour work. He was not expected to be stationed at the place of occurrence when the mishap took place.

6. Abdur Ra7zaq, F.W.1, practically reiterated what he had reported to the Police. Muhammad Hayat, P.W.2, also supported the prosecution version of the case against the appellants. These prosecution witnesses bore no hostility against the appellants nor had any motive for falsely implicating them. The learned counsel for the appellants was not in a position to attack the veracity of the testimony of these witnesses. The learned counsel could not point out any flaw in the process of appreciation of evidence adopted by the learned trial Court to determine the culpability of the appellants. In the circumstances the finding of the learned trial Court holding the appellants to be guilty of the commission of offences of which they have been convicted is unexceptionable and is affirmed. The conviction of the appellants recorded by the learned trial Court is upheld. The sentence awarded to them is not on the high side and demands no interference. Nevertheless, the learned counsel submitted that since the offences of which the appellants were convicted arose out of the same incident the sentences passed upon the appellants might be ordered to run concurrently instead of consecutively as directed by the learned trial Court. The contention of the learned counsel is not without force. Accordingly it is directed that sentences of the appellants will run concurrently. With the aforesaid modification in manner of running of sentences the appeal stands dismissed. The appellants will avail of the benefit of the provisions of section 382-B of the Code of Criminal Procedure extended to them by the learned trial Court.

N.H.Q./841/1FSC Order accordingly.