1993 PLP 1058 (SCMR)

SAEEDUZZAMAN SIDDIQUI, J. The leave granting order in the case reads as follows:- According to prosecution case, on 28th of Ramazan in the year 1985 at 1‑15 a.m. the complainant, Haji Yousif, while sleeping in his house, heard a call from outside the house for his nephew, Hamzo, at which Hamzo went out to attend. When Hamzo did not return, Haji Allahdino and complainant's two sons Muhammad Usman and Khadim Hussain followed him. The complainant was the last to follow Hamzo. On coming out of the house the complainant and his family members found two pick ups standing outside their house. One pick up was of grey colour while the other one was red in colour. The complainant and his family men found in one of the pick‑up 5 persons lying tied down. They recognized Haji Saban and his servant Mumtaz Ali and Hashim out of the 5 persons. Nine dacoits, 7 in police uniforms and 2 in plain clothes, were present. Out of them 5 were armed with rifles, one with a gun, one with revolver and one with a hatchet. All the five members of Haji Yousifs family including Haji Yousif, were also tied down by the dacoits. Thereafter, dacoits searched the house of Haji Yousif and all valuables and cash amounting to Rs. one lac were taken away by dacoits. The dacoits also broke open the shop of Haji Yousif and removed from there, Sugar, Dalda, Clothes, Cigarettes and licensed gun belonging to complainant. The complainant and his family members were taken in the pick‑up for some distance and thereafter were pushed out of the vehicle on the road. The complainant while travelling in the vehicle enquired from Haji Saban, who told him that they were travelling in the vehicle, when they were stopped by the dacoits in police uniforms and the vehicle was snatched from them and then the dacoits proceeded to commit dacoity in the house of complainant. The incident was reported on the same day by the complainant Haji Yousif at 5‑30 a.m. at Police Post Baghan and accordingly F.I.R, No.16/85 was recorded at P.S. Keti Bunder. After recording of F.I.R., S.H.O. Keti Bunder proceeded to place of occurrence and after inspection prepared Mashirnama for taking into possession the arms licences of double barrel shotgun and a rifle of the complainant, Haji Yousif. On 22‑6‑1985, S.H.O. Keti Bunder received information about arrest of some accused and recovery of stolen properties by S.H.O. Ladiun and he arrested them and. also took into possession the case property from S.H.O. Ladiun and S.H.O. Jati. On 27‑6‑1985, S.H.O. Keti Bunder arrested accused Esso. The identification parade of arrested accused. was held under the supervision of Assistant Mukhtiarkar Ghorabari. The S.H.O. Keti Bunder also got recovered some more stolen property on the pointation of accused person which was identified by the complainant and others. After completion of usual investigation, police challaned the accused before Additional Sessions Judge, Thatta. The prosecution examined 13 P.Ws. at the trial. Out of them, Haji Yousif (P.W.1), Usman (P,W.3), Allahdino (P.W.2) and Khadim Hussain (P.W.4) were the victims of Harabah and they provided ocular account of the incident. Murimtaz Ali (P.W.8) and Gul Hassan (P.W.9) who had witnessed the commission of the crime did not support the prosecution story at the trial on the plea that they were lying with their faces down to earth and therefore, they could not identify the accused. As the required number of witnesses were not available in the case, the learned trial Court held that the offence of `Harabah liable to Hadd was not proved against the appellants. However, on the basis of the ocular testimony furnished by the four victims in the case and the corroborative evidence of recovery of stolen properties from the accused and their identification by the P.Ws. in the identification parade, the trial Court found the appellants guilty of offences under sections 341 and 395, P.P.C. read with section 34, P.P.C. and sentenced them to simple imprisonment for one month under section 341/34, P.P.C. each, and life imprisonment and fine of Rs.20,000 each or in default of payment of fine to suffer further imprisonment for 5 years under section 395/34, P.P.C. On appeal the learned Federal Shariat Court maintained the sentences awarded by the trial Court but changed their conviction under section 395/149, P.P.C. from section 395/34, P.P.C. as the number of accused persons were in excess of four. We have heard the learned counsel for the appellants and the learned State counsel. Leave was granted in the case to consider whether in the facts and circumstances of the case offence of `Harabah' was made out against the appellants and they should have been awarded the punishment of `Hadd' in the case. After going through the record of the case, we find that the prosecution, in order to prove the offence of `Harabah' against the appellants, had examined in the case, besides the victims, two witnesses namely; Mumtaz Ali (P.W.8) and Gul Hassan (P.W.9) who had allegedly seen the appellants committing the offence. Both the witnesses did not support the. prosecution case at the trial and refused to identify the accused in the case. Therefore, the number of witnesses required under section 7 of the Ordinance, to prove the offence of `Harabah' liable to Hadd was not proved against the appellants. In so far the conviction of appellants under section 341 and 395, P.P.C. is concerned, the two Courts below have analysed the prosecution evidence in the case and reached the conclusion that the case was established against the appellants beyond reasonable doubt. We have carefully examined the evidence on record and find no infirmity or irregularity in the conclusions arrived at by the two Courts below. The learned counsel for the appellants, however contended that the maximum punishment prescribed for an offence under section 395, P.P.C. after it was amended in 1980 by Ordinance III of 1980, is rigorous imprisonment for a term which shall not be more than 10 years' and as such‑the sentences of the appellants may be altered from life imprisonment to 10 years' R.I. The argument of the learned counsel has not impressed us. Section 395, P.P.C. before the amendments brought about by Law Reforms Ordinance (XII of 1972) was as follows:‑‑ "

395. Whoever commits dacoity shall be punished with transportation for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine:" By Ordinance XII of 1972, the expression "transportation for life" in section 395, P.P.C. was omitted and in its place the words "imprisonment for life" were substituted. Section 395, P.P.C. was further amended by Criminal Laws (Amendment) Ordinance, 1980 (Ordinance No.III of 1980) and the words "may extend to" in the section were omitted and in its place "shall not be less than four years and not more than" were substituted. It is, therefore, not correct to say that the maximum punishment prescribed for the offence under section 395, P.P.C. is ten years rigorous imprisonment after the amendment of 1980. Section 395, P.P.C. as it originally stood provided for punishment of transportation for life or with rigorous imprisonment for a term which could extend to ten years and fine. The only change brought about by the amendments introduced by the Law Reforms Ordinance in 1972, was that the punishment for transportation for fife "was changed into" imprisonment for life. The second change introduced in section 395, P.P.C. by the amending Ordinance III of 1980 was that a minimum punishment of 4 years' rigorous imprisonment was introduced into the section. In all other respects the punishment prescribed for the offence under section 395, P.P.C. remained unchanged. A bare reading of the amended provision of section 395, P.P.C. will show that the Court while convicting a person under section 395, P.P.C. could either sentence him to life imprisonment or award him rigorous imprisonment which could not be less than 4 years or more than 10 years in addition to fine in each case. We are, therefore, unable to find any illegality in the sentence awarded to the appellants by the trial Court and confirmed by the Federal Shariat Court in appeal. The appeal is, accordingly, dismissed. N.H.Q./A‑995/S Appeal dismissed.