SALMA HAMID Versus BOARD OF INTERMEDIATE AND SECONDARY EDUCATION

SH. RIAZ AHMAD, J.----- - The appellants Shahbaz Ahmad son of Ata Muhammad and Ehsan Ullah son of Ahmad Khan both residents of village Dharowal, within the jurisdiction of Police Station Kunjah, District 6ujrat were tried by the Judge, Special Court for Speedy Trials at Gujranwala on a charge under section 397/394, P.P.C. for having committed robbery while armed with deadly weapons in the house of Muhammad Ali P.W.

2. Vide judgment, dated 18-10-1988, the appellants were found guilty and each of them was convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000 or in default thereof to suffer rigorous imprisonment for a term of one year.

3. Aggrieved by their conviction, the appellants have preferred appeal bearing No.1045 of 1988 which shall be disposed of through this judgment.

4. The prosecution case in brief is that Muhammad Ali, P.W., lived in his house alongwith his daughter-in-law (wife of his son) Razia Begum and her two children in Village Dharowal. On the fateful night of 22nd of March, 1988, P.W. Muhammad Ali and his daughter-in-law alongwith her two children were sleeping in their house when at about 9 p.m. both the appellants forcibly entered their room; Shahbaz Ahmad appellant was armed with a Chhuri while Ehsan Ullah appellant was holding an air gun in his hand. After entering the room, Shahbaz caught hold of Muhammad Ali and Ehsan Ullah tied his hands and feet with the string of the cot. Shahbaz then awoke Razia Begum and asked her to hand over ornaments and cash otherwise her children would be killed, thus; under that fear, she gave two golden rings weighing about four Mashas each to Shahbaz Ahmad. Ehsan Ullah also demanded the cash and jewellery which she refused and then he inflicted Butt blows of his air gun on her chest while Shahbaz attempted to inflict Chhuri blow but she warded off the blow by raising her left hand and thus, she was injured. Both Muhammad Ali and Razia Begum raised hue and cry whereupon Zafar Ahmad, P.W. Ghulam Rasool P.W. alongwith Siddique (not produced) reached the spot, they apprehended both the appellants and confined them in a room and locked the door from outside. Muhammad Ali also received abrasions and bruises and he was untied and he left for the police station to lodge report when, on his way, he came across Hassan Akhtar, S.I. P.W.5 in Village Jassoki and thus his statement Exh.P.A. was recorded at about 10 p.m. which was sent to the police station for registration of a case. Formal F.I.R. Exh.PA./1 was drawn by A.S.I. Muhammad Ashraf. At the time of arrest, air gun P.2 was taken into possession from appellant Ehsan Ullah vide memo. Exh.I .C. Parna P.6 which was blood-stained was also taken into possession from Ehsan Ullah vide recovery memo. Exh.P.G. From appellant Shahbaz 2 golden rings P.3/1-2 were recovered and the same were taken into possession vide memo. Exh.P.D. Blood-stained Parna P.5 was also taken into possession from Shahbaz vide recovery memo. Exh.P.F. A blood-stained Khais P.4 was also taken into possession vide memo. Exh.P.E. This Khais was lying on the cot of Muhammad Ali. Blood-stained string P.7 was also taken into possession vide memo. Exh.P.F. Chhuri P.1 was also taken into possession vide memo. Exh.P.B. All these memos were attested by Zafar Ahmad, P.W.2, Ghulam Rasool, P.W.4 and Siddique (given up) besides the Sub-Inspector Akhtar Hasan. The Sub Inspector also prepared injury statements of Muhammad Ali and Razia Begum Exh.P.O. and Exh.P.P. respectively. Both the appellants were also injured and their injury statements Exh.P.Q and Exh.P.R. were also prepared and they were sent to the hospital.

5. It may be stated here that Razia Begum died, a day before the commencement of trial. On the next day of the occurrence at 9 a.m. she was medically examined and an incised wound, six abrasions and four bruises were found on her person. Muhammad Ali P.W. was also examined and three abrasions and two bruises were noticed on his body. Appellant Shahbaz was also examined, he had two contused swellings, one abrasion and four bruises. Appellant Ehsanullah was also examined, he had three bruises, a swelling and a contused swelling on his person.

6. To prove its case at the trial, the prosecution placed reliance upon the statements of Muhammad Ali, P.W.1, Zafar Ahmad, P.W.2 and Ghulam Rasool, P.W.4.

7. When examined under section 342, Cr.P.C. the appellants denied the charge and made the following statement:--

"They are innocent and are students. They are residents of Village Dharowal by birth. Shahbaz accused produced school leaving certificate Exh.D.C. while Ehsan Ullah accused has produced his birth certificate Exh.D.A. and roll number slip Exh.D.D. of his appearance in middle school examination. Both of them have stated that Muhammad Ali and other P.Ws. are related inter se and they belong to their brotherhood. Zafarullah, Ghulam Rasool and Muhammad Siddique, P.Ws. used to view T.V. while sitting in the house of Muhammad Ali and Razia Begum and there they used to keep unlicensed arms with them. It was also stated that fathers of both the accused made a complaint to the police against Muhammad Ali and other P.Ws. that they were keeping unlicensed illicit arms with them so they became inimical towards the accused persons and while forcibly catching hold of them put them in the room and called the police and involved them in this false case by planting false recoveries."

8. Both the appellants also entered the witnesses-box and made their statements recorded under section 340(2), Cr.P.C. In fact, they repeated their statements recorded under section 342, Cr.P.C.

9. With the assistance of the learned counsel for the appellants and the State, we have carefully perused the entire evidence on the record and we have also heard the various contentions raised by both sides.

The learned counsel for the appellants has argued that the case is false. The appellants are students, they have been falsely roped in. We have examined this pica but we are not impressed with the same. The statements of three eye-witnesses are consistent and their credibility could not be shaken. Furthermore, all the witnesses had no axe of their own to grind. There is no enmity worth the name brought on the record so as to cast doubt upon their testimony.

The learned counsel for the appellants then drew our attention to some discrepancies. Particularly, with regard to the point of entry of the appellants in the house through the main gate or by scaling over the wall. We have examined this discrepancy as well but in our view, it is not material so as to demolish the prosecution case. The appellants were caught red-handed, they were locked in the room when the police came and arrested them from the spot. "The police had no illwill or motive so as to involve the appellants falsely in this case. Muhammad Ali first informant is not related to the two eye witnesses, they were Mohalladars and were the natural witnesses who were attracted to the house of the complainant after hearing hue and cry. It was also argued that the appellants did not use the deadly weapon and, therefore, the offence does not fall within the purview of section 397, Cr.P.C. the contention is devoid of force because Chhuri P.1 was recovered. Razia Begum lead received injuries with Chhuri, her medico-legal report has been brought on the record. It is thus evident that the appellant Shahbaz Ahmad did cause the injuries with Chhuri.

10. The circumstances clearly show that after making forcible entry by putting the inmates of the house under the fear of death or grievous hurt, the robbery was committed. In this view of the matter and particularly when the F.I.R. was also promptly lodged, we are convinced that the prosecution has brought guilt home to the appellants. Hence this appeal fails and is hereby dismissed.

11. Adverting to the question of sentence, we are of the view that the award of life imprisonment is severe in the circumstances of the case and, therefore, we reduce it to eight years. Hence we direct that the appellants shall suffer rigorous imprisonment for a term of eight years instead of life imprisonment. The sentence of fine is, however, maintained.

N.H.Q./S-416/L Sentence reduced.