2017 Y L R 1652
[Balochistan (Sibi Bench)]
Before Nazeer Ahmad Langove, J
NIAZ ALI ---Petitioner
Versus
The STATE---Respondent
Criminal Revision No.(S) 17 of 2017, decided on 25th April, 2017.
Penal Code (XLV of 1860) ---
----Ss. 392 & 511---Robbery, attempt to commit offence punishable with imprisonment for life
or a shorter term ---Appreciation of evidence ---Sentence, reduction in ---Prosecution case was that
accused/appellant and co -accused while armed with TT pistols trie d to snatch motorcycle from
complainant on gun point, but resisted by the complainant and accused/appellant was
apprehended on the spot, whereas the co- accused succeeded to flee away ---Ocular account was
furnished by prosecution witnesses including complai nant---Said witnesses recorded their
statements in straightforward and confidence inspiring way and fully involved the accused as one
of the culprit, apprehended on spot ---No room was, therefore, left to doubt that the accused had
falsely been involved ---Recovery of pistol was effected in the presence of witnesses ---Said
witnesses were subjected to lengthy and searching cross -examination but nothing could be
extracted in favour of defence ---No mala fide, ill- will, previous enmity or personal grudge
against the accused could be brought on record---Circumstances suggested that the offence
alleged against the accused/appellant was not an attempt to commit robbery ---Conviction
recorded being harsh, appeal was dismissed while maintaining the conviction but sentence of
imprisonment was reduced from three years to eighteen months, in circumstances.
Ali Hassan Bugti for Petitioner.
Ameer Hamza Mengal, Deputy Prosecutor General ("DPG") for the State.
Date of hearing: 14th April, 2017.
ORDER
NAZEER AHMAD LANGOVE, J.---This order disposes of Criminal Revision Petition
No.(S) 17 of 2017 which is directed against the impugned judgment dated 09.03.2017
(hereinafter "the impugned judgment") passed by Judicial Magistrate, Dera Murad Jamali
(hereinafter "the trial Court") and judgment dated 16.03.2017 (hereinafter "the impugned
judgment") passed by learned Additional Sessions Judge, Nasirabad at Dera Murad Jamali
(hereinafter "the appellate Court") whereby he has been convicted and sentenced under section
392 read with sec tion 511, P.P.C. for a period of three years R.I with fine of Rs.10,000/ - (Rupees
Ten Thousand Only) and in default of payment of fine he has to suffer undergo S.I. for six (06)
months and maintained. However, benefit of section 382(b), Cr.P.C. was extende d in favour of
the accused.
2. Brief facts of the case are that on 09.02.2016 the complainant Jalal Khan lodged the FIR
No.10/2016 at Police Station Saddar Dera Murad Jamali with the averments that on the day of
incident, he along with his brother -in-law W ajid Ali set out for Jacobabad on his CD -70
motorcycle model 2016, registration No.Nil in connection to some domestic work; at about 9:15
a.m. when they reached near Sona Khan Kholoi Rind Lara; that in the meantime, two persons
came on motorcycle armed wit h TT pistols tried to snatch his aforesaid motorcycle on gunpoint,
but resisted by the complainant, finally one at them was apprehended; that on seeing the heavy
rush of vehicles on National Highway, the second person succeeded to flee away; that people of
the area also gathered there and the accused was handed over to the police, hence the registration
of the instant case and arrest of the accused.
On completion of investigation, challan of the case was submitted and trial commenced
before Judicial Magist rate, Dera Murad Jamali. On 21.03.2016 the charge was read- over and
explained to the accused to which he plead not guilty and claimed trial.
The prosecution in order to establish its case produced as many as four (04) witnesses.
On examination under secti on 342, Cr.P.C. the accused disputed the case of the prosecution and
plead his innocence with the submission that he is innocent has no concern or connection with
the commission of the alleged offence neither attempted to commit any offence of robbery nor
apprehended at the spot but involved in the instant case by the police for the reasons best known
to them. However, he did not opt to appear as his own witness as envisaged under section 340(2),
Cr.P.C. nor produced any witness in his defence.
3. The trial Court after hearing the parties and evaluating evidence found the accused guilty,
as such convicted and sentenced him for the period mentioned herein above. Assailed in appeal.
It may not be irrelevant to mention here that both the accused persons namely Niaz Ali and Sahib
Dad were convicted and sentenced by the trial Court. However, in appeal the co -accused Sahib
Dad was acquitted by the appellate Court by extending benefit of doubt in his favour by
maintaining conviction and sentence against the appellant, hence instant revision petition.
4. Learned counsel for the appellant argued that the judgment impugned passed by the trial
Court as well as appellate Court are based on non- appreciation and mis -appreciation of evidence
based on surmises and conjuncture s and non- speaking ones hence are not sustainable under the
law and are liable to be reversed. He criticized the impugned judgments passed by the Courts
below by submitting that both the Courts below erred in law by holding that the prosecution has
been ab le to prove its case against the appellant beyond the shadow of any reasonable doubt. He
added that learned appellate Court failed to justify conviction and sentence recorded against the
appellant by the trial Court after recording acquittal of co -accused on same set of evidence which
caused miscarriage of justice to the appellant.
5. On the other hand, learned DPG strongly opposed the petition by submitting that the
judgments impugned passed by Courts below are based on proper appreciation of evidence and
no illegality or irregularity, misreading and non -reading in the judgments impugned are available
to the defence. Learned counsel maintained that even the learned counsel for the petitioner has
failed to point out any specific illegality or inherent defects in the impugned judgments,
therefore, revision petition filed by the petitioner merits dismissal.
6. I have heard learned counsel for the parties and gone through the record with their
assistance which reflects that the instant case was registered on 09. 02.2016 with the allegation of
attempt to commit robbery. The prosecution in order to prove its case produced PW -1 Jalal Khan
complainant and victim of this incident, who submitted an application Ex.P/1- A in pursuance
thereof the instant FIR was registered . He appeared before the trial Court and reiterated the
contents of application wherein he involved the accused as one of the culprit. PW -2 Wajid Ali,
he is an important witness and one of the victim of this incident, who recorded his statement
before the trial Court wherein he supported the version narrated by PW -1 and he also identified
the accused present in the Court, PW -3 Abdul Hakeem, Head Constable, a marginal witness of
proceedings of site inspection none Ex.P/3- A, recovery of TT pistol through memo Ex.P/3 -B. He
identified the aforesaid pistols produced in the Court as Art.P/3 to Art.P/5. PW -4 Muhammad
Qasim, S.I., he is the investigating officer of this case, after registration of the FIR Ex.P/4 -A he
visited the place of incident, prepared sitemap, recorded the statements of witnesses, on
completion of investigation he submitted the challan.
7. The above named witnesses did appear before the trial Court and recorded their
statements in a straightforward and confidence inspiring way, both the eye -witnesses namely
PW-1 Jalal Khan and PW -2 Wajid Ali recorded their statements on oath wherein they fully
involved the accused as one of the culprit, apprehended on the spot, therefore no room left to
doubt that the accused has falsely been involved. Recovery o f pistol was also effected in the
presence of witnesses produced an Article in the Court. The witnesses named above were
subjected to lengthy and searching cross -examination but nothing could be extracted in favour of
defence showing that either the offence not happened in the manner narrated in the FIR, or
deposed by the PWs named above, similarly no mala fide, ill -will, previous enmity or personal
grudge could be brought on record showing that evidence furnished by the prosecution was
based on malice or i ll-will rightly believed by the trial as well as appellate Courts. However, the
Courts below while recording/maintaining conviction against the accused erred in law and did
not attend the important aspect of the matter that the offence alleged against the appellant was
not attempt to commit robbery for which the conviction recorded/maintained in my view point
was/is too harsh.
8. In view of the above mentioned facts and circumstances of the case, the petition filed by
the petitioner is dismissed. However, t he period of sentence recorded under section 392 read with
section 511, P.P.C. is reduced from three (03) years R.I. to eighteen (18) months R.I. Similarly,
the amount of fine i.e. Rs.10,000/ - (Rupees Ten Thousand Only) or in default thereof for a period
of six (06) months S.I. is also reduced to Rs.5,000/ - (Rupees Five Thousand Only) and one
month S.I. The benefit of section 382- B, Cr.P.C. extended by the trial Court shall remain intact.
The accused was convicted and sentenced in another case registered u nder section 13- E
of the Arms Ordinance, 1965 vide FIR No.11/2016, both the sentences recorded/maintained
against the accused shall run concurrently.
With the above modification, instant Criminal Revision Petition filed by the petitioner is
otherwise dism issed.
JK/62/Bal Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.