SULTAN SHAH Versus MUHAMMAD HUSSAIN

This judgment will govern Criminal Appeal No.239/L of 1994, filed by appellants Asghar Ali son of Allah Ditta Jat and Said Muhammad son of Fateh Muhammad Pathan, and Criminal Appeal No.253/L of 1994, filed by Manzoor Hussain son of Said Muhammad Virk, against the judgment of the learned Additional Sessions Judge, Sheikhupura, dated 3-7-1994, passed in Hudood Case No.130 of 1994 by which the appellants have been convicted. By the said judgment, all the 4 accused including the 3 appellants have been convicted under section 412, P.P.C. and sentenced to seven years' R.I. and also fined rupees five thousand each and in default in the payment of fine to further undergo three months' R.I. I have heard Mr. Muhammad Taqi Khan, learned counsel appearing for the 3 appellants in both the appeals and Mr. Muhammad Aslam Malik, learned counsel, who represents the State in both the appeals. With the assistance of the learned counsel, I have gone through the record and the impugned judgment.

2. Complainant in this case is Muhammad Akmal Khan, who lodged report at Police Station Bhiki at 4-00 p.m. on 8-3-1993. According to the complainant, on the same clay at about 2-45/3-00 p.m., he alongwith Muhammad Yaqoob and Rashid Zafar were carrying the wages of the employees of Poly Paper Mills at Faisalabad Road and were travelling in a Suzuki towards the factory when they were stopped and the amount was forcibly taken away by the 4 accused. Investigation was commenced and, in due course of time, accused Asghar Ali, Muhammad Aslam and Manzoor Hussain were arrested on 12-3-1994 and accused Said Muhammad was taken into custody on 30-3-1993. After completion of the investigation, all the 4 accused -were challaned and tried. They were accused of committing offence under section 392, P.P.C. read with section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. In all the prosecution examined 8 witnesses. In their statements, all the accused denied the charge. By the impugned judgment, the trial Court held that the prosecution had failed to prove its case under section 392, P.P.C. read with section 17 of the 1979 A Ordinance. However, relying upon the recoveries and identification, the trial Court came to the conclusion that the 4 accused were guilty of the offence under section 412, P.P.C. and they were convicted for that offence and sentenced as stated above. It may be stated that, according to the prosecution, an amount of Rs.3,50,000 was recovered from appellant Asghar Ali, Rs.30,000 from appellant Said Muhammad, Rs.14,900 from appellant Manzoor Hussain and Rs.5,000 from Muhammad Aslam (who has not yet filed any appeal).

3 It was contended by learned counsel for the appellants that the case against the appellants has not been proved even under section 412, P.P.C. and, in any case, if the Court had believed the evidence on record, the conviction could only be recorded under section 411, P.P.C. In support of this proposition, learned counsel refers to a decision of the Lahore High Court in the case of Wali Muhammad v. The State reported in PLD 1975 Lah. 261. In the facts of this case, the decision supports the submission of the learned counsel for the appellant that the conviction under section 412, P.P.C. was not called for. Mr. Muhammad Aslam Malik, learned counsel for the State agrees with the contention of learned counsel.

4. In my view also it was a case where the prosecution had failed to establish its case beyond reasonable doubt against the appellants under section 412, P.P.C. In the circumstances, the conviction of the three appellants is converted from under section 412, P.P.C. to under section 411, P.P.C. and their sentence is altered to the sentence already undergone by them. As observed, they have been in custody since March, 1993.

5. The three appellants, namely, Asghar Ali son of Allah Ditta Jat, Said Muhammad son of Fateh Muhammad Pathan and Manzoor Hussain son of Said Muhammad are directed to be released forthwith if not required in any other case.

6. Criminal Appeal No.239/L of 1994 and Criminal Appeal No.253/L of 1994 stand disposed of in the above terms.

N.H.Q./928/FSC ???????????????????????????????????????????????????????????????????????????????? Order accordingly.