Respondents/petitioners Maqsood Ahmad and Salamat Ali were tried by the learned Magistrate Ist Class, Pasrur, District Sialkot (in the case registered vide FIR No, 238/98 under Sections 458/380/411 PPC. Police Station Phalora, District sialkot), who, vide judgment dated 14.6.2000, convicted them under Section 458 PPC and sentenced to three years RI each with a fine of Rs, 10,000/- each. They were also convicted under Section 380 PPC and sentenced to three years RI each and a fine of Rs, 5,000/-. In default of payment of the fine they were directed to further undergo nine months SI each. Benefit of Section 382-B Cr.P.C. was extended to them. Their sentences were directed to run consecutively. Their co-accused Matloob and Rashid Ahmad were convicted under Section 411 PPC and sentenced to three years. RI each and a fine of Rs, 10,000/- each in default whereof to further undergo SI for six month each. They were also extended the benefit of Section 382-B Cr.P.C.
2. Petitioners/respondents assailed the above-mentioned convictions and sentences by way of appeal filed before the learned Court of Sessions which was dismissed by the learned Additional Sessions Judge Pasrur vide judgment dated 5.3.2004.
3. Petitioners/respondents filed Criminal Revision No, 306/04 against the above concurrent judgments of conviction of both the Courts below. The said Revision Petition came up for hearing before this Court on 19.4.2004 on which date this Court while admitting the case to regular hearing, issued notice for enhancement of sentence to the petitioners/respondents in the following manner:-- "5. A heinous offence was committed when two armed persons criminal trespassed into the house of the complainant and took away household articles, they were identified and case was registered. After having gone through the impugned judgment I am of the considered opinion that sentence awarded to the petitioners is not based on proper appreciation of evidence on record and the facts of the instant case, therefore, a notice for the enhancement of sentence shall be given to the petitioners that why their sentence should not be enhanced. After the service of the petitioners, the matter shall be fixed for hearing'.
4. A separate file (Crl. Rev. No, 347/04) was constructed pursuant to the issuance of notice for enhancement of sentence to the petitioners/respondents. Both these Criminal Revisions are being disposed of through this single judgment. After having accepted above notice for enhancement of sentence issued to the petitioners/respondents vide this Court's order dated 19.4.2004; Malik Muhammad Akram Khan Awan, Advocate has appeared to make following submissions on their behalf:--
(i) That the learned trial Court was wrong in convicting the petitioners/respondents under Section 458 PPC and also under Section 380 PPC simultaneously;
(ii) That co-accused namely, Matloob and Rashid Ahmad of the present petitioners/respondents, have already undergone their sentences who were convicted under Section 411 PPC;
(iii) That the case property was not produced during the trial which leads towards their innocence.
(iv) That a certificate as required by the learned trial Court under Section 364 Cr.P.C. has not been given in the statement of the petitioners/respondents recorded under Section 342 Cr.P.C.
(v) That as far as recovery of tape recorder from Salamat is concerned, there is no mention of it in the FIR;
(vi) That the ear rings allegedly recovered from Maqsood petitioner/respondent are weighing nine Mashas only and the petitioners/respondents are the first offenders. (vii) That Mushtaq (PW1) and Ghulam Abbas (PW2) were given up by the prosecution but, later on, they were produced without having summoned.
In support of the submissions made, learned counsel for the petitioners/respondents relied on AIR 1925 Lahore 539, AIR 1927 Qudh 313, AIR 1920 Lahore 312(1), AIR 1926 Lahore 581, AIR 1920 Lahore 312 and AIR 1925 Lahore 539.
5. On the other hand, the learned Additional Advocate General Ch. Muhammad Hanif Khatana submits that if, for the sake of arguments, contention of the learned counsel for the petitioners/respondents is admitted to be correct then the petitioners/respondents could not have been convicted under Section 458 PPC alongwith Section 380 PPC, that the punishment provided under Section 458 PPC is fourteen years imprisonment and the learned trial Court has convicted and sentenced the petitioners/respondents without giving any reason. While concluding his arguments, the learned Law Officer contends that so far as the commission of the offence is concerned, the prosecution story has been believed by the learned Courts below, therefore, it would be in the interest of justice if the sentence of the petitioners/respondents under Section 458 PPC is enhanced. Further contends that the State would have no objection if the sentence of the petitioners/respondents under Section 380 PPC is set-aside as the same is not called for.
6. I have heard learned counsel for the parties, have gone through the impugned judgments of conviction passed by both the Courts below, the record the relevant provisions of law and have also given anxious consideration to their respective submissions made at the bar.
7. In the instant case petitioners/respondents, alongwith two others, namely, Matloob and Rashid committed lurking house trespass by night into complainant's house and according to the FIR (Exh.
PA/1) recorded on the statement of Muhammad Javed son of Abdur Rehman he was retailer in the village and on the night between 28/29.8.1998 he was asleep in his house alongwith other family members at about 2.00 a.m. and the light in his room was on; that he woke up and saw that two armed persons with muffled faces were present in the room; that they picked up TV 14 inch Sony Make, VCP National Made and they also took cash of Rs, 25,000/- from his bucket lying on shelf alongwith golden ornaments; that during that exercise, their faces were unveiled and he identified them as Maqsood and Salamat (petitioners/respondents); that the light in the Courtyard was also on; that two unknown persons armed with deadly weapons were also standing there; that while taking away the above mentioned articles they were also seen by Muhammad Javed son of Nawab Din. On leaving the place of occurrence, the petitioners/respondents/accused threatened the complainant with murder if he reported the matter to the police. The hue and cry raised by the complainant, several people gathered there. The complainant, on the same day, made a supplementary statement naming Matloob and Rashid as culprits against whom case was proved alongwith the petitioners/respondents and who were convicted and sentenced under 411 PPC by the learned trial Court vide the same judgment.
8. The prosecution has proved case beyond and shadow of doubt against the petitioners/respondents/accused through Javed and other prosecution witnesses, through recoveries affected from the present petitioners/respondents and their co-accused Rashid and Matloob.
9. The contention of the learned counsel for the petitioners/respondents that no certificate has been given by the learned trial Court in the statements of the petitioners/respondents recorded under Section 342 Cr.P.C. is of no avail to him because having perused the same I find that the said certificate has been given.
10. Having looked the case from every angle I am of the considered view that the prosecution has proved the case against the petitioners/respondents and their co-accused to the hilt. The statement of the complainant is corroborated by the other prosecution witnesses. The recoveries affected from the petitioners/respondents is a further corroborative piece of evidence against them. The petitioners/respondents were specifically named in the FIR. They were identified at the time of occurrence. The two co-accused of the present petitioners/respondents, who are not named in the FIR, have already earned a lenient view by both the learned Courts below. As far as case of the petitioners/respondents is concerned, the offence committed by them is heinous in nature. The concurrent findings of both the Courts below, regarding proved prosecution case, are there. The learned trial Court as also the learned Appellate Court have not mentioned any reason that why the petitioners/respondents have been awarded three years sentence although fourteen years maximum imprisonment is earned a lenient view by both the learned Courts below. As far as case of the petitioners/respondents is concerned, the offence committed by them is heinous in nature. The concurrent findings of both the Courts below, regarding proved prosecution case, are there. The learned trial Court as also the learned appellate Court have not mentioned any reason that why the petitioners/respondents have been awarded three years sentence although fourteen years maximum imprisonment is provided under Section 458 PPC. As the offence committed by the petitioners/respondents is a heinous one the conviction and sentence awarded to the petitioners/respondents do not meet the ends of justice. Resultantly, the three years RI is enhanced to seven years RI under Section 458 PPC. The sentence of fine and imprisonment in lieu thereof shall remain the same as awarded by the learned trial Court and affirmed by the learned Additional Sessions Judge. Benefit of Section 382-B Cr.P.C. shall be extended to them.
11. As the petitioners/respondents have also been awarded conviction and sentence under Section 380 .PPC and fine of Rs, 5,000/-, respectfully following the case law relied upon by the learned counsel for the petitioners/respondents and as the State has no objection, this Court is of the view that the same does not call for. Therefore, the conviction of petitioners/respondents under Section 380 PPC is set-aside and the petitioners/respondents are acquitted from the charge under Section 380 PPC.
12.Crl. Revision No, 347/04 and Crl. Revision No, 306/04 are disposed of with the above modifications in the quantum of sentence.