2017 PLP 373 (YLRN)

HASAN FEROZ, J.

Accused/ Appellant Shazia-wife of Fayyaz in Crl. Jail Appeal No. 335/2013 was tried by the Court of learned VIII-Assistant Sessions Judge Karachi East in Sessions Case No. 1124/2012, pertaining to FIR No. 125/2012 under section 392/34, P.P.C. of P.S. Khokhrapar along with Accused/ appellant Saeed Ahmed son of lrfan and through judgment dated 04.11.2013, were found guilty for committing offence under section 392/34, P.P.C. and thereby sentenced to suffer R.I. for 5 years each and-to pay fine of Rs.40,000/- each or in default of payment of the fine, each to further suffer S.I. for two months; benefit under section 382-B, Cr.P.C. also stands awarded to them.

2. Accused/appellant Shazia wife of Fayyaz filed present Criminal Jail Appeal which was admitted for regular hearing.

3. On 05.11.2014 appellant was produced in custody. File of connected Appeal Bearing No. 298/2013 was tagged with this file and Office was 'directed to fix Cr. Appeal No. 298/2013 along with this Jail Appeal and notice to counsel for appellant in such appeal, notice to surety was also ordered to go with direction to the surety to produce appellant Saeed Ahmed on the next date of hearing.

4. Prosecution story briefly is to the effect that as per FIR lodged on 30.08.2012 at about 1300 hours by complainant Muhammad Tasleem son of Muhammad Tahseen, he is residing at House No. 8/10; E-2, Malir Extension Colony, Karachi on 29.08.2012 he was available at his Thella, meanwhile his wife informed him on cell phone that an incident of robbery has happened at the house of complainant, on this information he rushed at his house where his wife told him that at about 1.00 p.m. three persons armed with weapons, one was old man while two were young along with a lady entered into the house and forcibly detained all the family members in a room and demanded the keys of almirah, due to fear of death, the family members given the keys of almirah to accused persons, who took away gold ornaments weighing about 9 tolas, and cash amount of Rs.1,90,000/-from his house on the force of weapon and went away. Hence this FIR was lodged against the accused persons.

5. After the investigation was completed, both the appellants were sent up to the Court of learned Sessions Judge Karachi East, from where case has been transferred to this Court for disposal according to law.

6. Learned trial Court framed the formal charge against the appellants to which both pleaded not guilty.

7. In support of its case, prosecution examined complainant Muhammad Tasleem son of Muhammad Tehseen as Ex.5, who produced FIR, memo. of site inspection, memo of arrest, memo of site inspection on the pointation of accused as Ex. 5/A to 5/D. PW.2 SI Ghulam Akbar son of Muhammad Ibrahim as Ex.6, PW.3 Waseem Ahmed son of Muhammad Tehseen as Ex.7 PW.4 Mst. Shazia wife of Muhammad Tasleem, PW.5 ASI Fahim Ahmed son of Akhtar Hussain as Ex.9 who produced entries as Ex.9/A to 9/C thereafter the side was closed by the prosecution vide statement dated 24.9.2013 as Ex.10.

8. In her statements under section 342, Cr.P.C. the appellant denied the allegation of prosecution and stated that she has been falsely implicated in this case by the police. However, she has declined to examine her on oath nor led any defence.

9. Accused/appellant Mst. Shazia, remained unrepresented by counsel in the trial Court, she herself cross-examined the complainant in the trial Court, nor examined herself as her own defence witness under section 340(2), Cr.P.C.

10. As stated above, learned trial Court found the appellant/accused guilty of the said offence and convicted and sentenced her along with co-accused; hence the present Criminal Jail Appeal.

11. I have heard appellant Shazia as well as her learned counsel Mr. S.M. Iqbal.

12. Mr. S.M. Iqbal, learned counsel for the appellant Shazia has contended appellant is a lady who is confined in jail for 2 years and 10 months and it is a fit case which due to mitigating circumstances appellant's sentence undergone may be treated as sentence. I have perused the Jail Roll and according to Jail Roll, appellant Shazia has served out sentence of 2 years, 7 months and 1 day.

13. The evidence produced by the prosecution against the appellants is solo resting on complainant with the natural events and there is nothing on record to controvert the depositions of the witnesses. It appears that the appellant in her statement under section 342, Cr.P.C. also could not establish any further than mere denial. Learned trial Court found the appellant guilty of the said offence, convicted and sentenced as stated above.

14. I have in my perusal the jail appeal filed by appellant from jail for seeking justice. The perusal of judgment passed against the present appellant and another accused Saeed Ahmed who after filing of the appeal remained present up to 18.09.2014 however, the appellant has failed to appear on date of hearing thus, to contest the appeal therefore, his appeal being separately filed is separated from this hearing. It has come crystal clear that on the basis of sole evidence of complainant supported by the evidence of I.O. the conviction has been passed whereas I have also in my consideration that the lady remained undefended during the trial as against the requirement of Section 340, Cr.P.C. although she herself cross-examined the complainant/ witness.

15. Under the above circumstances, the appellant being lady who remained un-represented at the trial by the counsel of her choice and the sentence is 5 years out of which she has passed 2 years, 7 months and 1 day which is period of confinement as per jail roll. At the same time I have also in my consideration that the appellant being lady seeks justice on mitigating circumstances whereas the statutory requirement of punishment under section 392, P.P.C. is 3 years without any discrimination of gender therefore, the mitigating circumstances would not override the essence of section 392, P.P.C. I, therefore, maintaining the conviction and reduce the sentence awarded to appellant lady from 5 years R.I. to 3(Three) years R.I. and the fine amount of Rs.40,000/- is reduced to Rs.10,000/- whereas the sentence in lieu of fine is reduced from 2 months to 1 month. With the above modification, the conviction is maintained however sentence is reduced as above and this appeal is disposed off. HBT/S-20/Sindh Sentence reduced.