MUHAMMAD KHAN Versus THE STATE Appellant through Jail , Sheikh Naseeruddin Ahmad

Muhammad Khan appellant has filed this appeal through jail against his conviction under section 392/34, P.P.C. on three counts in trial Case No. 14/2 by learned Special Magistrate vide order, dated 16‑12‑1962. He was sentenced to 4 years' R.I. and a fine of Rs.500 or in default six months' R.I. on each count. It was further ordered that the sentences on each count would run one after the other making the total term of imprisonment awarded as 12 years and a fine of Rs.1,500 or in default further R.I. for one and a half years.

2. The facts of the case are that Muhammad Khan and his 'brother Hashim Khan (since dead in police encounter) committed many murders and in the house of one Mian Muhammad on 16‑5‑1961. A case vide F.I.R. No. 17 was, therefore, registered on 16‑5‑1961 at Police Station Laws, District Campbellpur on the statement of Gharib Nawaz Chowkidar P.W. 1 who made statement Exh.P.M. before Fateh Haider Shah S.I., P.W.11 on the file of that murder case on the basis of which formal F. I. R. Exh.P.M./1 was recorded. A copy of the said F.I.R. Exh.P.A. was placed on the file of this case. After registration of the case the police undertook investigation. Ameer Khan P.W.4 made a statement that on the day of murders, Muhammad Khan accused and his brother Hashim Khan had forcibly taken away his licensed gun alongwith cartridges from his house in the presence of his maid‑servant Mst. Moodan P.W.5. Masri Khan P.W. also made a statement that the accused Muhammad Khan and his brother forcibly took away his mare after the occurrence and threatened him with murder. Similarly Aitbar Khan P.W.6 also made a statement during investigation that he was riding a mare belonging to Zohar Khan when Muhammad Khan and his brother met him. They put him under fear of death and snatched away the said mare. On the basis of these statements the present appellant Muhammad Khan was challaned under section 392/34, P.P.C. regarding the licensed gun of Ameer Khan. Mare of Masri Khan and mare of Zohar Khan snatched from Aitbar Khan P.W. in same F.I.R. No. 17, dated 16‑5‑1961. Fateh Muhammad P.W.7 shepherd and a son of Mat. Moodan P.W.5 deposed that Muhammad Khan had handed over the two mares to him when he was grazing his cattle directing him to hand over them to their respective owners. He accordingly delivered the two mares at the Dera of Zohar Khan P.W. who further delivered one mare to Masri Khan P.W. who produced the said mare before Aziz Ahmad Khan, S.I. P.W.13, who took the same in possession vide memo. Exh.P.B. in the presence of Mausam Khan P.W.3 and Allah Yar P.W.10. The mare died before the trial and the skin Exh.P.1 of the said mare was produced in Court and identified by Aziz Ahmad S.I. P.W.13. Ajaib Khan P.W.9, a son of Zohar Khan P.W. produced the mare of his father which was taken in possession by Aziz Ahmad Khan S.I. vide memo. Exh.P.C. in presence of Mausam Khan P.W.3 and Allah Yar P.W.10. The accused was arrested formally by Khadim Hussain S.I. P.W.8, who was challaned after investigation and convicted as stated above, on three counts.

3. During the trial the prosecution examined 13 witnesses in all. Muhammad Khan accused/appellant had absconded after committing many murders as stated above. A challan was filed against him under section 392/34, P.P.C. wherein proceedings under section 512, Cr.P.C. were undertaken. After his arrest he was tried by the Special Magistrate, who convicted him as given in detail above. Masri Khan and Zohar Khan P.Ws., who had been examined under section 512, Cr.P.C. in the absence of Muhammad Khan appellant died before commencement of trial. As such the statements of Masri Khan, dated 26‑10‑1961 and 4‑5‑1962 were tendered in evidence as Exh.P.D./A and Exh.P.D./B. Similarly the statements of Zohar Khan P.W., dated 26‑10‑1961 and 23‑5‑1962 were tendered in evidence as Exh.P.E./A and Exh.P.E./B. Besides this evidence Gharib Nawaz Chowkidar P.W.1 stated that he lodged the F.I.R. Exh.P.M. regarding the murders committed by Muhammad Khan accused and his brother. Bagh Bahar P.W.2, A.S.I. recorded formal F.I.R. Exh.P.M./A, copy of which was Exh.P.A. P.W.3 Mausam Khan and P.W.10 Allah Yar witnessed the recovery of mares as stated above. Ameer Khan P.W.4 stated during the trial that he was taking bath when he heard noise of females from the adjoining house of Mian Muhammad. He came out of the bath‑room and at that time saw Muhammad Khan accused wearing blood‑stained clothes alongwith his brother Hashim Khan entering his house. Muhammad Khan took away the gun alongwith cartridges belonging to him, in the presence of Mst. Moodan P.W.5. This gun was not recovered during the investigation. Aitbar Khan P.W.6 stated that he was coming on a mare belonging to Zohar Khan when Muhammad Khan and his brother met him on the way. They forcibly took away the said mare from him. He was supported by Ajaib Khan P.W.9 in whose presence he had taken the mare from Zohar Khan P.W., who in his statements Exh.P.E./A and Exh.P.E./B also supported Aitbar Khan P.W.6. Masri Khan P.W. in his statements Exh.P.D./A and Exh.P.D./B stated that he was proceeding on his mare when Muhammad Khan accused and his brother met him. They were armed with guns. They forcibly took away his mare from him. The said mare was received by him after a few days. Aziz Ahmad Khan P.W.13 investigated the case. The other witnesses are of formal nature. The accused after the close of evidence was examined under section 342, Cr.P.C. He denied the charge and allegations levelled against him, and did not produce any evidence in defence.

4. I have gone through the entire evidence from the record of this case with the assistance of the learned counsel for the State. Ameer Khan P.W.4 and Mst. Moodan P.W.5 who have deposed regarding the forcible taking away of the licensed gun alongwith cartridges by Muhammad Khan accused and his brother are independent witnesses. They had no enmity with the accused, who on the day of 'occurrence committed many murders in a house close to the house of Ameer Khan P.W. The accused, therefore, needed some weapon and it is, therefore, quite natural that they forcibly took away the licensed gun belonging to Ameer Khan P.W. It is correct that the said gun was not recovered but this will not discredit ocular evidence. I find that charge under section 392/34, P.P.C. on this count is fully established against the appellant.

5. It is stated by Masri Khan P.W. in his statements Exh.P.D./A and P.D./B that Muhammad Khan and his co‑accused forcibly snatched the mare from him. The said mare was handed over by Muhammad Khan accused and his brother to Fateh Muhammad P.W.7, who delivered the mare to Zohar Khan, who then gave the said mare to Masri Khan. Masri Khan P.W. and Fateh Muhammad P.W.7 are also independent witnesses. There is no reason to discredit their testimony. Fateh Muhammad P.W. has clearly stated that the two mares were given to him by Muhammad Khan appellant and his brother. In this view of the matter I find that the charge under section 392/34, P.P.C. on this count also stands proved against the appellant.

6. So far as the charge regarding the mare of Aitbar Khan is concerned it is true that Aitbar Khan P.W.6, Mausam Khan P.W.3, Allah Yar P.W.10 and Ajaib Khan P.W.9 were inimical towards Muhammad Khan appellant and his brother, but the facts and circumstances of the case indicate that the story put forth by them was correct. Muhammad Khan and his brother Hashim Khan had committed many murders on 16‑5‑1961. It was, therefore, necessary for them to run away from the spot and to reach a place as far as possible in minimum time. This circumstance indicates that they snatched the mare from Aitbar Khan P.W.6. This mare was also returned by Muhammad Khan appellant to Fateh Muhammad P.W.7, who delivered the same to Zohar Khan P.W. This Fateh Muhammad P.W.7, as already stated was an independent witness. In this view of the matter, I find that the charge under section 392/34, P.P.C. on this count also stands proved.

7. In view of the above, I find no merit in this appeal which is accordingly dismissed. The conviction and sentences on three counts of Muhammad Khan appellant are maintained. The sentences on all the three counts will run one after other as ordered by the trial Court. The appellant will be informed of the result of this appeal in jail.

S. G. D.

Jail appeal dismissed.