2001 PLP 3043 (YLR)

3. The said convict approached the learned Court of Session with an appeal against the said conviction and punishments awarded to him. This appeal was, however, dismissed by Ch. Khalid Mahmood, a learned Additional Sessions Judge at Lahore, through his judgment dated 10‑3‑1999.

4. Hence this petition under section 439 of the Cr.P.C.

5. The prosecution case, as disclosed by Muhammad Rafique complainant, was that he owned 1 Kanal, 1 Marla and 145 sq. feet of land in the area of Police Station, Mustafabad of Lahore where he desired to put up a mosque and a Madrassah and where he had already constructed a room. He had further claimed that he had stored some bricks and others for the purpose of further construction and that in the year 1971, on the request of his friends, namely, Latif and Khalid, the complainant, in the name of Allah, gave that one room to Muhammad Sharif convict and also asked him to look after the building material lying there. The complainant had further alleged that Sharif convict demolished the one constructed room which the complainant had given to him; stole the building material and used the said material to construct two rooms on the said land and even got an electricity meter installed at the said premises by swearing a false affidavit declaring himself to be the owner of the said property.

6. Mr. Muhammad Shan Gul, Advocate appearing for the State, assists me by submitting that the offences punishable under sections 379/406 and 420, P.P.C. were a contradiction in terms and in given facts, conviction of the petitioner on all these three charges was not legally tenable. Explains that if the complainant had entrusted the building material in question to the convict then it could not be a case of cheating and that if it was a case of misappropriation then the act in question could not be culpable as theft. Places reliance on the following judgments:‑‑ AIR 1926 Lah. 581; AIR 1928 Patna 326; PLD 1959 Dacca 931 and 1971 PCr.L.J. 1296.

7. Mr. Muhammad Shan Gul, Advocate also submits that conviction of Muhammad Sharif petitioner on the above‑mentioned three charges was also bad in law being offensive of the provisions of section 71 of the P.P.C.

8. Relying upon section 32(1) and section 35(2)(b) of the Cr.P.C., submits that the learned trial Magistrate who is a Magistrate of the 1st Class and who can award a maximum sentence of imprisonment up to three years for a single offence, could not award punishment of imprisonment for different offences the aggregate of which exceeded twice the amount of punishment which he could inflict for a single offence. Adds that the aggregate of the sentences of imprisonment awarded for various offences in the present case was 14 years which was thus illegal.

9. The learned counsel further submits that the aggregate of the punishments of imprisonment awarded to Muhammad Sharif convict in the present case, as has been mentioned above, was 14 years and in terms of the provisions of section 35(3) of the Cr.P.C. read with section 408 of the said Code, the appeal lay directly to this Court and not to the Court of Session and further that the learned Additional Sessions Judge who had decided Muhammad Sharif convict's appeal was in gross error in having ignored this jurisdictional aspect of the matter and having entertained and decided the said appeal in contravention thereof.

10. The prosecution case, as has been noticed above, was that the complainant had permitted the convict to live in a room constructed by the complainant wherein some building material was also lying. The accusation against the convict was that he demolished the said one room and by using the building material of the said room as also by utilising the other building material lying at the spot he, instead constructed two rooms there. It is available on record that the complainant had given the said room and the said material in the charge of the convict who was thus in possession of the same. This being so, since the petitioner had not removed any goods out of the possession of another, therefore, the ingredients of the offence of theft did not stand satisfied. The conviction of the convict‑petitioner under section 379, P.P.C. is thus not legally tenable. His conviction and punishment recorded against him under section 379, P.P.C. are, therefore, set aside.

11. There is no evidence on record that the convict‑petitioner had deceived the complainant and had thereby fraudulently or dishonestly induced him to deliver the property in question to him which property, as per the claim of the complainant, had been entrusted to the petitioner in the name of Allah, on the request of the friends of the complainant. Resultantly no case of cheating stands made out against the petitioner. His conviction and the punishment recorded against him under section 420, P.P.C. are, therefore, also set aside.

12. The complainant had alleged that he had entrusted the property in question to the petitioner. His said claim is corroborated by other witnesses who had appeared at the trial. The petitioner never pleaded that he was the owner of the property in question nor he could show as to how he had come into possession of the said property otherwise than through entrustment by the complainant. The said accusation of the complainant thus stands proved on record. Similar is the position of the affidavit submitted by the petitioner with the WAPDA Authorities for getting an electricity connection for the premises in question. The question is what offence had been committed by the petitioner.

13. It is in evidence that he had demolished the room built by the complainant which had been handed over to him. It is also in evidence that having demolished the said one room the petitioner had instead constructed two rooms at the premises in question by re‑using the material which had become available to him through the demolition of the said room and by utilising the building material which was available at the spot and which had been stored there by the complainant. It is thus evident that the intention of the petitioner was not to cause any wrongful loss or damage to the complainant but the intention in fact was to raise two rooms instead of one available at the premises in question. Thus the mens rea vis‑a‑vis the offence of mischief was missing. Therefore, the offence punishable under section 427 of the P.P.C. does not stand proved as a result whereof the conviction of the petitioner under the said charge and the punishment awarded to him therefore are set aside.

14. The petitioner had converted to his own use the building material belonging to the complainant which was lying at the spot. He was thus guilty of the offence punishable under section 406 of the P.P.C. The conviction recorded against him on the said charge and the punishments awarded to him for the same by the learned trial Magistrate are maintained.

15. The petitioner had filed an affidavit to support his claim/title vis‑a‑vis the property in question for securing an electricity connection. This was a false claim and thus the document i.e. the affidavit made by him was a false document. There is however, no evidence available on record that the said forged document was intended to be used or was in fact used for the purpose of cheating anyone which is an essential ingredient of section 468 of the P.P.C. The said offence thus does not stand proved. The conviction of the petitioner on the said charge and the resultant punishments are, therefore, set aside. He is instead convicted under section 465 of the P.P.C. and is directed to suffer one year S.I. therefore. It may be mentioned here that no charge had been framed against the petitioner under section 465, P.P.C. but this punishment for the said charge is being awarded to him in view of the provisions of section 238(2) of the Cr.P.C. as the offence under section 465, P.P.C. is an offence minor than the offence under section ‑168, P.P.C. of which he stood charged.

16. The result is that the petitioner now stands convicted under section 406, P.P.C, and is to suffer three years' R.I. and is to pa, a tine of Rs.15,000 for the said charge in addition to which he also stands convicted under section 465, P.P.C. and is required to undergo one year S.I. therefore. The petitioner shall suffer one month S.I. in default of payment of fine under section 406, P.P.C.I Both these sentences are directed to run concurrently and the petitioner shall also be allowed the benefit of the provisions n: section 382‑B, Cr.P.C.

17. This petition is disposed of in the above terms.

18. Before I part with this judgment I would like to bring on record that the petitioner is in custody and the present petition is pending before this Court for the last more than one and a half years mainly on account of the non‑availability of the learned counsel for the petitioner who is not available even today. I have, consequently, in the interest of the petitioner, decided this petition in the absence of his learned counsel. It may be mentioned here that nobody has any right to be heard either personally or through a pleader by any Court exercising powers of revision as prescribed by section 440 of the Cr.P.C.

19. I must also express my displeasure over the knowledge of law displayed by Mr. Ahmed Ali Zafar, Judicial Magistrate, 1st Class, Lahore and Ch. Khalid Mehmood, a learned Additional Sessions Judge at Lahore. Copies of this judgment shall be sent to both the learned Presiding Officers, wherever they be presently posted, for their information and further guidance.

20. The assistance rendered by Mr. Muhammad Shan Gul, Advocate, both on legal and factual aspects of the matter is appreciated. N.H.Q./M‑793/L Order accordingly.