TALHA Versus State
SYED MUHAMMAD FAROOQ SHAH, J.--- This is a Jail Appeal of convicted prisoners namely (1) Talha son of Muhammad Aslam and (2) Muhammad Qasim son of Muhammad Azam forwarded by Superintendent Central Prison, Karachi, wherein, the appellants made a prayer to set-aside the impugned Judgment dated 7.12.2012 pronounced in S.C.No.247/2011 in Crime No.198/2011, under sections 397/394/34, P.P.C. registered at Police Station Defence, Karachi. They have also prayed for their acquittal on the facts and grounds averred in the instant appeal.
2. A perusal of the impugned Judgment reveals that the learned Trial Judge has convicted the appellants jointly under sections 394/397/34, P.P.C. and recorded separate punishment for mentioned offences;
(i) For the offence punishable under section 394, P.P.C., to undergo Rigorous Imprisonment for 4(four) years.
(ii) For the offence punishable under section 397, P.P.C., to undergo Rigorous Imprisonment for 7 (Seven) years and to pay the fine of Rs.25,000/- each in case of default of payment of fine, the accused persons shall further undergo for simple imprisonment for 2 months with the direction that all the sentences shall run concurrently with benefit of section 382-B, Cr.P.C.
3. On request of Counsel for the appellants Jail Roll of both convicted prisoners was called. Along report No. JB/17441/42 dated 06.8.2016, Senior Superintendent Central Prison, Karachi annexed the Jail Roll in respect of convicted prisoner/appellant namely Muhammad Qasim son of Muhammad Azam which reflects one (1) year eleven (11) months and twenty two (22) days of unexpired portion of his sentence from total sentence with fine of seven (7) years and two (2) months. He has further reported that co-accused/appellant Talha son of Muhammad Aslam has been released from the Prison on 23.9.2015, on expiry of sentence on remission system.
4. The convicted prisoner/appellant Muhammad Qasim alias Mani son of Muhammad Azam made a request in writing to decide his appeal by considering the imprisonment which he has already undergone the said application (M. A. No.9020/2016) was forwarded by Senior Superintendent, Central Prison, Karachi.
5. Arguments heard. Record perused.
6. A perusal of charge framed on 18.8.2011 reveals that on 25.5.2011 at about 2330 hours (11.30 PM) both accused persons armed with deadly weapons, in furtherance, of their common intention and riding on a Motorclycle intercepted the Car bearing Registration No.AHS-992, Mitsubishi Lancer, driven by the Complainant Meer Tariq Yaqoob and wherein his wife Azra was on front seat, when reached near turning of PNS Shifa, Old Sunset Boulevard Road, Phase-II, D.H.A, Karachi, both culprits attempted to commit robbry and on resistance of complainant by speeding up his car, accused persons made fire upon the Car and voluntarily caused hurt to Mst. Azra, who received bullet shot injuries on her left wrist and right leg whereby, the accused committed an offence punishable under sections 394/397/34 of the Pakistan Penal Code and within the cognizance of the Trial Court (IIIrd Additional Sessions Judge, Karachi (South). Both the accused did not plead guilty.
7. Prosecution, to establish guilt against the accused, examined complainant Meer Tariq Yaqoob, who identified the accused Muhammad Qasim present in Court, who came under his car and the accused, who made fire was identified by him to be accused 'Talha', who had been released from the Prison on completion of sentence awarded to him. It has come in the prosecution evidence that present appellant was empty handed and came under the car of the complainant while co-accused Talha, who was allegedly armed with fire arm weapon and made straight fire on the complainant and his wife has already been released on completion of sentence awarded to him. In his cross -examination, complainant has admitted that he was informed by the police at Jinnah Hospital about the criminals/accused persons.
8. PW-/injured Mst. Azra Tariq while narrating the facts of the incident identified the accused Talha present in Court, who fired at her person. She has categorically stated in the last of her examination-in-chief that "I could not see face of another accused clearly as I was injured". No other ocular testimony brought on record by the prosecution except the prosecution witnesses named above. It has come in evidence that accused Talha duly armed with pistol fired at the wife of the complainant, who sustained bullet injuries and the present appellant/accused Muhammad Qasim was empty handed and sustained injuries due to the Car dashed by the complainant to the person of accused Muhammad Qasim.
9. Mr. Khalid Khan, advocate for the appellant Muhammad Qasim submitted that it is necessary to find each individual accused using a deadly weapon and it is not sufficient to fall back upon the provisions of section 34, P.P.C., in order to convict the co-accused, who was unarmed at the time of the occurrence of the crime, as section 34, P.P.C. has no application to the provisions of section-397, P.P.C. Learned Counsel placed reliance on the case of "Labadan Sain v. Emperor" [AIR 1931 Patna 49]. While placing reliance on another citation, reported in "AIR 1935 Allahabad 132", learned Defence Counsel argued that section 397 does not provide that if a, gun is used at a dacoity by a person or persons unknown, all of the dacoits must be punished with at least seven (7) years' imprisonment as this Section does not provide for joint liability under section 34. Learned Counsel has also placed reliance on the Judgment delivered by Mr. Muhammad Mujeebullah Siddiqui, J, of this Court reported as "2005 PCr.LJ 1599", wherein, it was held, that the conviction of accused under section 392, P.P.C. after his conviction under section 397, P.P.C. was bad in law and not sustainable as the same amounted to his conviction twice for the commission of same offence. In another citation of this Court reported in "2008 MLD 456", the recovery of pistol and live bullets were considered an important piece of evidence but still non-production of any case property during trial for its identification were required to be produced, as in the instant case Pistol and bullets were not shown in the challan as case property. Learned Counsel argued that the appellant neither carried deadly weapon nor caused any grievous hurt to any person and in such circumstances, conviction under section 397, P.P.C. can be altered to that under section 394, P.P.C., as held in "1968 PCr.LJ 878". Learned Counsel further argued that in the case of Safdar Hussain the Full Bench of Hon'ble Supreme Court [1969 SCMR 476] in similar circumstances set aside the conviction and sentence and held that the prosecution to establish association of such other accused by clear act, conduct or other circumstances.
10. Learned Counsel submitted that the prosecution has miserably failed to prove the case of conviction against the accused beyond shadow of reasonable doubt, as from the deposition of both eye-witnesses, it appears that they had improved their version by strengthening the prosecution and their such improved statements subsequently made cannot be relied upon, as credibility of their statements become doubtful on the well known principle of Criminal jurisprudence that improvement casts serious doubt on the veracity of such witnesses.
11. Conversely, learned Assistant Prosecutor General (APG) submitted that the case against the present appellant falls under section 397, P.P.C. and minimum punishment required in such type of cases is seven (7) years, however, he admitted that the charge as framed by the trial Court is not correct with regard to the fact that both appellants were shown armed with deadly weapons fired upon the complainant and injured, as it has come in the evidence that the present appellant was empty handed, came under the car of complainant during attempt of robbery. He has also admitted that co-accused, who, was allegedly armed with deadly weapon made straight fire upon the complainant and his injured wife Azra has been released by the Jail Authorities after suffering the punishment awarded to him by the trial Court.
12. Insofar as, his separate conviction under sections 394 and 397, P.P.C. is concerned, the learned Trial Court did not consider that it was not a very serious attempt of present appellant Muhammad Qasim, who was empty handed came under the car of the complainant and sustained injuries, therefore, in the mentioned circumstances, there is no direct evidence that present appellant Muhammad Qasim has committed the offence falls under section 397, P.P.C. If at all, allegations leveled against him fall under section 394, P.P.C. Section 397, P.P.C. applies to the person, who actually attempted to cause grievous hurt or was himself armed with deadly weapon.
13. In the result, the prosecution successfully brought home the guilt of the appellant for an offence, punishable under section 394, P.P.C., however, conviction of appellant Muhammad Qasim under section 397, P.P.C. was illegal, because he neither carried any deadly weapon nor caused any grievance hurt to injured lady. In such circumstances, conviction awarded to appellant Muhammad Qasim under section 397, P.P.C. is not sustainable, however, the conviction under section 394, P.P.C. whereby he was sentenced to suffer four (4) years' R.I is maintained. The conviction and sentence awarded to co-accused "Talha" is maintained under section 397, P.P.C. only. Appeal is accepted to the above extent only. As per Jail Roll mentioned supra, the 'appellant Muhammad Qasim has already served the sentence of five (5) years and two (2) months and eight (8) days, which shows that he has already undergone the altered sentence through this Judgment, therefore, Superintendent Central Prison, Karachi is directed to release the appellant Muhammad Qasim forthwith in this case, if he is not required in any other case.
Caption appeal is disposed of in the above terms.
JK/T-21/Sindh Appeal allowed.