MUHAMMAD KASHIF vs THE STATE
This criminal appeal challenges the conviction of the appellant, Muhammad Kashif, who was initially sentenced by the trial court under Section 398 of the Pakistan Penal Code 1860 for robbery committed while armed with a deadly weapon. The core legal question before the High Court was whether the evidence presented supported a conviction under the more severe Section 398, or if the offence more appropriately fell under Section 392 of the Pakistan Penal Code 1860, which pertains to robbery. Upon review of the evidence, including the circumstances of the appellant's apprehension by the complainant and his brother, the Court agreed with the State counsel that the facts established an offence under Section 392 rather than Section 398. Consequently, the Court modified the conviction from Section 398 to Section 392 of the Pakistan Penal Code 1860. The Court reduced the sentence from seven years to four years, maintaining the requirement for a fine, while also extending the benefit of Section 382-B of the Code of Criminal Procedure 1898 regarding the period of detention already served.
- Whether the offence of robbery committed while armed with a deadly weapon falls under Section 392 or Section 398 of the Pakistan Penal Code 1860?
- Can an appellate court modify a conviction from Section 398 to Section 392 of the Pakistan Penal Code 1860 based on the evidence presented?
- Is the benefit of Section 382-B of the Code of Criminal Procedure 1898 applicable to a convict whose sentence is reduced on appeal?
- Section 392, Pakistan Penal Code 1860
- Section 398, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 154, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
ORDER
1. ' KHAWAJA NAVEED AHMED, J.----Appellant Muhammad Kashif was arrested by Mehmoodabad Police Station, Karachi, in case F.I.R. No,86/2004 under sections 392/34, P.P.C.
2. ' Brief facts of the case are that S.-I. Mumtaz Ali Abro of Mehmoodabad Police Station recorded 154, Cr.P.C. Statement of Complainant Momin Khan son of Rafa Khan and apprehended accused Muhammad Kashif along with a TT pistol of .30 bore with five live bullets.' According to the complainant the present appellant on 13-5-2004 at about 3-30 p.m. Had arrived at his General Store known as Ikramullah General Store, situated in House No,520, Gali No,12, Junejo Town, Karachi.
3. The Appellant asked for Marvin Cigarettes and match box. The complainant had given him the cigarette and the matchbox. He returned and thereafter again came along with another person with a TT Pistol and on point of TT Pistol deprived the complainant of Rs,20,000 cash, which was lying in the drawer of his showcase. In the meantime, brother of the complainant Ikramullah came out of the house and both the brothers have overpowered the present appellant and snatched pistol from him. Public in large number had gathered there and the accused was handed over to the police along with the pistol. A challan was submitted him. The trial Court framed the following issues and had convicted the appellant under section 398, P.P.C. To undergo imprisonment for seven years and fine of Rs,5,000 and in default to undergo R.I. For three months more.
(1) "Whether accused Kashif along with absconding accused Muhammad Afzal committed robbery of Rs,20,000 from complainant Momin Khan on the show of weapon on 13-5-2004 at 1530 hours?"
(2) What offence, if any committed by the accused?
4. ' Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
5. ' The appellant is in custody since 21-5-2004. He has served sentence, including the remissions, upto 29-10-2007, as three years, five months and nine days. The remaining sentence is more than three and half years. His conduct in the jail is found satisfactory as per the jail roll called by this Court. Mr. Fazalur Rehman Awan, learned State counsel, after perusing the entire record states that the offence falls under section 392, P.P.C. And not under section 398, P.P.C. I am in agreement with the learned State counsel and accordingly modify the conviction of appellant from section 398, P.P.C. To section 392, P.P.C. And reduce the sentence from seven years to four year with fine of Rs,500 and in default of payment of fine the appellant is to serve sentence of five days more.
6. ' With the above modification in conviction and reduction in sentence, the appeal is dismissed.