MAQSOOD AHMED and others vs THE STATE

1. ' KHAWAJA NAVEED AHMED, J.---Appellants Maqsood Ahmed, Syed Wasi Haider, Sher Bahadur and Rashid Ellahi through this and connected Appeal No.387 of 2006 have impugned the judgment, dated 30-9-2006 passed by the learned VII Additional Sessions Judge, Karachi (South), whereby each of them was convicted and sentenced to undergo imprisonment for life under section 399, P.P.C. And R.I. For seven years under section 402, P.P.C. With fine of Rs.10,00,000 and in default of payment of fine to undergo S.I. For one year more.

2. ' Brief facts of the case are that on 29-4-2003 complainant, S.-I. Ejaz Ali Khawaja, has lodged F.I.R.

3. No.98 of 2003 at Police Station Defence, Karachi, stating therein that during the course of patrol duty he found a black-yellow taxi bearing registration No.JL-1144 in which four persons were sitting.

4. The Sub-Inspector on information that these persons were making preparation to commit dacoity, apprehended them and recovered weapons and booked them under sections 399 and 402, P.P.C.

5. The appellants were tried by by the learned VII Additional Sessions Judge, Karachi (South) who was pleased to convict and sentence the appellants as above.

6. ' The learned counsel for the appellants has drawn my attention towards the sentence provided under sections 399 and 402, P.P.C. For the sake of convenience, both the sections are reproduced hereunder:-- "(399) Making preparation to commit dacoity.---Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

(402) Assembling for purpose of committing dacoity.--Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term, which may extend to seven years, and shall also be liable to fine."

7. The maximum sentence provided under section 399, P.P.C. Is ten years imprisonment and fine while that of under section 402, P.P.C. Is seven years and fine. I fail to understand how the learned Additional Sessions Judge, Karachi (South) has sentenced the appellants to undergo life imprisonment while under the Pakistan Penal Code the maximum sentence provided is ten years. I take great exception to this negligence on the part of the judicial officer who did not bother to go through the book while awarding the sentence of imprisonment to the accused persons. Moreover, fine of Rs. 10,00,000 in an offence under section 399, P.P.C. Is never heard of. I fail to understand what compelled the learned Additional Sessions Judge, Karachi (South), to award sentence of such a heavy fine to the appellants against whom there was an allegation of making preparation to commit dacoity.

8. ' The learned counsel for the appellants has also drawn my attention towards page 47 of the paper book wherein cross-examination of P.W.4, S.-I. Muhammad Arif appears. S.-I. Muhammad Arif is also the Investigating Officer of F.I.R. No.98 of 2003, under sections 399 and 402, P.P.C. In reply to a question the Investigating Officer has made admission in the following words:-- "It is correct that I did not collect any evidence, which shows that the accused persons were planning to commit dacoity/ robbery. It is correct that I did not collect any evidence as to from where the accused persons have purchased the weapons. It is correct that no witness has mentioned in their statements that they have heard the conversation of the accused persons regarding planning of the robbery/dacoity. It is correct that I did not make efforts to associate any private witness in support of the prosecution version. It is correct that no independent witness or evidence is brought on record other than the police officials who have stated that fifth accused was with them at the time of occurrence."

9. ' Learned counsel appearing for the appellants has also drawn my attention towards the judgment, dated 26-8-2006 passed by the learned VII Additional Sessions Judge, Karachi (South), in Sessions Case No.357 of 2003, F.I.R. No.37 of 2003, under sections 392, 397 and 34, P.P.C. Of P.S. Frere, Clifton Town, Karachi. At typed page No.14 of this judgment, the same Additional Sessions Judge, Karachi (South), Ms. Munawwar Sultana, has observed about Sher Bahadur, accused in that case, that:-- "So far as the plea taken by accused Sher Bahadur that he was apprehended by police from Court premises on 26-4-2003 and shown his arrest in the instant case on 29-4-2003 is proved from the record of judicial file that the intimation was submitted by the learned advocate for accused Sher Bahadur on 26-4-2003 in the Court of learned Judicial Magistrate-III, Karachi (Central), in case No.232 of 2002, titled State v. Sher Bahadur, where the accused was in attendance on the said date and facing trial in case F.I.R. No.192 of 2002 under section 13-D Arms Ordinance registered at PS Nazimabad. The case diary, dated 26-4-2003 of the said case is also available on record, which clearly shows that accused Sher Bahadur was present in that Court since morning and the matter was fixed at 2-30 p.m. For judgment but due to subsequent arrest of the said accused on the same day and in the light of the intimation filed by the learned advocate, the learned Judicial Magistrate has adjourned the case to 30-4-2003 for judgment. The prosecution is unable to satisfy the Court in this regard."

10. I am surprised to note that the same learned trial Judge who has given above findings in respect of accused Sher Bahadur that he was arrested from the Court premises on 26-4-2003 has believed that on 29-4-2003 at about 0100 hours appellant Sher Bahadur was planning to commit dacoity with co-accused Syed Wasi Haider, Rashid Ellahi and Maqsood Ahmed. The learned counsel for the appellants has read out the entire evidence and have shown such material contradictions to the Court, according to which accused Sher Bahadur was believed to be in the custody by the same trial Court on 26-4-2003 while the same Court has convicted him for planning and making preparations to commit dacoity on 29-4-2003. These material contradictions cannot be everlooked. The edifice of entire prosecution story has fallen down by these contradictions.

11. ' The learned counsel for the State, Mr. Fazal-ur-Rehman Awan, is unable to defend the prosecution case in these circumstances and concedes that the conviction and sentence awarded to the appellants is unsustainable under the law.

12. ' I have also given my due consideration to the facts of the case and have gone through the entire evidence with the assistance of the learned counsel for the appellants as well as the learned counsel for the State. I am surprised that the learned trial Court has awarded life imprisonment in an offence where maximum sentence prescribed is ten years.'

13. ' For the foregoing reasons, I allow Criminal Appeals Nos. 386 and 387 of 2006, set aside the impugned judgment, dated 30-9-2006 and order release of the appellants forthwith, if they are not required in any other case.