2005 PLP 1709 (SCMR)

MUNIR A. SHEIKH, ACTG. C.J.

This appeal by leave of the Court is directed against the judgment dated 4-10-2001 passed by High Court of Sindh through which acquittal recorded by the trial Court regarding offence under section 365-A, P.P.C. against the appellants was reversed and they have been convicted under the said provision of law and sentenced to life imprisonment.

2. The facts of the case are that appellants along with co-accused who are petitioners in the connected Jail Petition No.171 of 2001 were tried under section 365-A read with section 344, P.P.C. in the Special Court, Anti-Terrorism for Hyderabad and Mirpurkhas. Divisions at Hyderabad. The trial Court after receiving the evidence produced by the prosecution came to the conclusion that no evidence was available on record to connect appellant No.5 namely Ghulam Hussain with the offence, therefore, he was acquitted. The remaining four appellants were also acquitted from the charge under section 365-A, P.P.C. but they were convicted for the offence falling under section 344, P.P.C. and were awarded sentence of one year's R.I. with fine of Rs.1,000 or in default to undergo 15 days' R.I. No appeal was filed either by the complainant or the State against the acquittal of these five appellants for offence under section 365-A, P.P.C. No appeal was also filed seeking enhancement of sentence under section 344, P.P.C. for the maximum sentence prescribed under the said section is three years. The other three accused persons namely Sana Ullah Shah, Ghulam Shabbir and Doctor alias Dawood alias Mir "Muhammad were however, convicted under section 365-A, P.P.C. and sentenced to 10 years' R.I. and fine of Rs.10,000 each and in default of payment of fine to further undergo R.I. for six months. Benefit of section 382-B, Cr.P.C. was also extended to them. The death sentence of said three appellants was, however, modified to life imprisonment through the judgment impugned in this appeal. Simultaneously acquittal of the appellant under section 365-A, P.P.C. was converted into conviction under the said section and they have been awarded life imprisonment after issuing notice to them.

3. Learned counsel for the appellants on the strength of principle laid down in the case of Shera and 6 others v. The Crown PLD 1954 FC 141 argued that there was no appeal against acquittal of all these five appellants under section 365-A, P.P.C. and the notice was merely issued to enhance their sentence therefore, the High Court under section 344, A P.P.C. could not have converted the sentence of appellants under section 365-A, P.P.C. to life imprisonment.

4. The argument has considerable force. Learned Additional Advocate-General when questioned has no answer. For the foregoing reasons this appeal is accepted, judgment dated 4-10-2001 is hereby set aside and that of the trial Court is restored. The appellants shall be released forthwith if not required in any other case. N.H.Q./M-119/S Appeal accepted.