P L D 1966 (W (PLP)

2. The prosecution case briefly is that at about midnight on the 14th October 1963, Muhammad Sarwar (P. W. 1) complainant, who is soldier orderly (to Captain Muqeet Khan, stationed at Rawalpindi), after seeing cinema show in the city was going to Lalazar. When he was near Lalkurti crossing, he was peremptorily asked by the petitioner to stop. The petitioner was then in uniform and on patrol duty, but at that moment was engaged in having his hair massaged. The petitioner got up and questioned the complainant about his identity. The latter replied that he was soldier orderly. The petitioner shouted at him saying that he was a loafer on thieving expedition and required him to accompany him to the police station or the Military Police Post to establish to his identity and antecedents. The petitioner then tools bicycle parked nearby and directed the complainant to accompany him to the police station. The latter complied. After they had gone for some distance, the petitioner suggested to the complain ant that he would let him go his way provided he paid him some money. The complainant offered to pay him Re. 1 to avoid harassment. But the petitioner would not accept anything less than Rs. 10 which the complainant was unwilling to pay. They had hardly gone for a few paces further when the petitioner thrust his hand in the complainant's pocket and forcibly took out currency notes which on count by the petitioner were found to Rs.

105. The petitioner wrapped the currency notes in his own handkerchief and put them in his pocket. Having thus relieved him of the money, the petitioner asked the complainant to get on to his bicycle, for going to the police post, himself pretending to drive. As the complainant was trying to balance himself on the bicycle, the petitioner pushed him away and himself rode off in a bid to escape from the scene of occurrence. The complainant ran after the petitioner shouting "thief, thief". He had hardly gone for some distance along the Mall when he met police constables Hassan Muhammad (P. W. 2) and Abdus Sattar (P. W. 3), whom he told what had befallen him. Actually, they had seen the petitioner speeding away on his bicycle, before they met the complainant. They also joined the pursuit on their bicycles, the complainant following them on foot. But the petitioner succeeded in eluding his pursuers. When the complainant was still trying to overtake the petitioner, he met a police party of officers and con stables in a motor vehicle, whom he also told about the incident. They asked him to follow them to the police post. The party included A.S.I. Muhammad Siddique (P. W. 11), who on reaching the police post recorded the complainant's statement Exh. P. A., who reached there shortly thereafter. On the basis of this statement F. I. R., Exh. P. A./1 was drawn up. After a few hours of the recording of the F. I. R., the petitioner also appeared on the police post and laid himself on an empty Charpoy when police constables Mazhar Hussain Shah (P. W. 4) and Shahnawaz (P. W. 6) spotted him and asked who he was. When he replied that he was also a police constable on patrol duty and had come to rest, Mazhar Hussain Shah and Shahnawaz P. Ws. asked him to leave the place because there were fire‑arms and ammunition lying in the room. The complainant, who had earlier reached the police post, identified the petitioner as the culprit, who had relieved him of his money. He was, therefore, arrested and on his search Rs. 87 and a few annas were recovered which were taken into possession, vide recovery memo. Exh. P. B.. The police uniform, which he was wearing then was also taken into possession, vide Exh. P. C. The petitioner had left his bicycle at the Secretariat Canteen, before he laid himself on the charpoy. This too was taken into possession.

3. In the trial Court, the petitioner admitted having stopped the complainant at midnight on the 14th October 1963 when he was going towards Lalazar to establish his identity. He stated that owing to exchange of hot words with the complainant, he had falsely accused him of snatching money from him to avenge himself. He, however, admitted that during the investigation of the case Rs. 87 were recovered from him, but claimed that the money belonged to him.

4. The petitioner's conviction rests on the evidence of the complainant (P. W. 1), Hassan Muhammad (P. W. 2) and Abdus Sattar (P. W. 3), both of whom saw the petitioner speeding away on a bicycle at some distance from the scene of occurrence followed by the complainant shouting "thief, thief". The Courts below fully believed their evidence and this trust in them, in my opinion, is well justified. Neither the complainant nor the other two principal witnesses in the case had any animus against the petitioner and his explanation that this case is the result of the hot words exchanged between him and the complainant hardly deserve any serious notice.

5. Apart from the evidence of these witnesses, there is the evidence of Mazhar Hussain (P. W. 4) and Shah Nawaz (P. W. 6) who had seen the petitioner in somewhat confused state of mind when he had almost flung himself on the empty cot in a room in the police post. That the petitioner was arrested so soon after the occurrence and was found in possession of Rs. 87, furnish a strong circumstantial corroboration of the prosecution case.

6. Learned counsel for the petitioner contended that the disparity in the amount of money that the petitioner was alleged to have snatched from the complainant alleged and the amount actually recovered from the petitioner falsifies the prosecution case. I do not think that this disparity leads to any such result: rather it gives an impress of genuineness to the prosecution case. It is noteworthy that according to the prosecution case, the count was done by the petitioner and not the complainant and the latter may not have had the correct idea as to the precise amount of money he was then carrying on his person or may be that the petitioner during the intervening two or three hours between the commission of offence by him and his arrest had parted with some of his booty. Be that as it may, the police constable while on night patrol duty is hardly expected to carry that amount on his person. Therefore, I am not impressed by the argument that this discrepancy makes the prosecution case doubtful. The com plainant's pursuit of the petitioner while shouting "thief, thief" and the latter being seen speeding away from the scene of occur rence by Hassan Muhammad and Abdus Sattar P. Ws. who are his comrades in the same force establishes his guilt beyond any reasonable doubt.

7. Apart from his argument on the factual aspect of the case, learned counsel for the petitioner also contended that even if the prosecution version is to be believed, the offence made out would be that of simple theft, punishable under section 379, P. P. C. and not of robbery because no violence is alleged much less proved to have been committed in the commission of the alleged theft. The argument overlooks the definition of `robbery'. According to section 390, P. P. C. theft is robbery if in order to the committing of theft or in committing the theft or in carrying away or attempting to carry away property obtained by theft the offender for that end, inter alia, "voluntarily causes or attempts to cause to any person . . . . wrongful restraint or fear . . . . . of wrongful restraint." As observed already, it is hardly open to any doubt that the complainant while he was proceeding towards Lalazar, he was stopped by the petitioner near Lalkurti crossing and was forced to accompany him to the police station or to the Military Police Post on the pretence of getting him to establish his identity and antecedents. This definitely amounted to wrongful restraint. The plain intention of the petitioner was to take the complainant aside in order to overpower him to part with some money. Therefore, I have no doubt in my mind, in the circum stances of the case, that the offence proved against the petitioner was not simple theft but was aggravated to robbery. I, therefore, find no force in the contention raised by the petitioner's learned counsel.

8. It was also urged by the petitioner's learned counsel that the offence, if any, proved against the petitioner fell under section 161, P. P. C. read with section 5 (2) of the Prevention of Corruption Act, 1947, for which sanction of the appropriate authority was requisite under section 6 (5) of the Pakistan Criminal Law Amendment Act, 1958. This argument is also wholly misconceived. The complainant's offer to avoid hi harassment by the petitioner did not exceed Re. 1 and it fizzled out at that. The petitioner by thrusting his hand into the complainant's pocket forcibly snatched money to which the latter was never consenting party. Therefore, it is not possible to view the transaction except as outright plunder by the petitioner. It is incorrect to suggest that the petitioner snatched away money from the complainant under the purported discharge of his duty or colour of his office, so as to bring his case under section 161, P. P. C. It was out and out his private adventure, bringing his case under section 392, P. P. C. for trial of which no sanction is required under any law.

9. For the aforesaid reasons, I hold that the petitioner was rightly convicted under section 392, P. P. C. and dismiss his revision petition (Cr. R. No. 451 of 1965).

10. This brings us to a consideration of the adequacy of sentence and to this aspect of the case, I have given my careful thought. Even the learned lower Appellate Court observed that the sentence "errs on the side of leniency". The petitioner, at the material time was on patrol duty. He was supposed to apprehend any bad character who might be out on a nocturnal adventure or prowl and thereby to endure peace and safety for the law abiding citizens. It is, indeed, horrifying to find a custodian of law and order himself plundering a loan way‑farer at dead of night, whom) he was under a duty to protect. The petitioner not merely committed a penal offence, he brought slur on the force to which he belonged and also debased the uniform he was wearing at the relevant time as insignia of his authority. A substantive sentence of one year, in the above circumstances, for an offence which punishable with rigorous imprisonment which may extend to fourteen years is so grossly inadequate as to amount miscarriage of justice. It can scarcely be deterent to others with similar propensities. To reach the ends of the justice in the case, I enhance the petitioner's sentence to three years rigorous imprisonment and a fine of Rs. 200 or in default of payment of fine to suffer further rigorous imprisonment for three months and decide Criminal Revision No. 459 of 1965 accordingly. K. B. A. Petition dismissed. Sentence enhanced.