1. Ch. Ejaz Yousaf, Chief Justice.--This appeal is directed against the judgment dated 9.12.2004 passed by the learned Additional Sessions Judge, Izzafi Zilla-I-Swat whereby appellant Yar Muhammad son of Muhammad Jan was convicted under Section 380 PPC read with Section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sentenced to undergo seven years R.I. and a fine of Rs, 10,000/- or in default thereof to further undergo S.I. for six months. He was also convicted under Section 457 PPC and sentenced to undergo seven years R.I. and a fine of Rs, 10,000/- or in default thereof to further suffer S.I. for six months. Benefit of Section 382-B Cr.P.C. was, however, extended to the appellant.
2. 2.Facts of the case, in brief, are that on 23.5.2002 report was lodged by one Tauqeer Ahmad, son of Sher Bahadar with Muhammad Ghawas, ASI wherein, it was alleged that in the previous night the complainant was sleeping in his house alongwith his family members. On hearing commotion, at about 0300 hours, he woke up and saw in the electric light that 6/7 persons came out from a residential room of his house and went outside. After their departure, on checking, a sum of Rs, 50,000/-, 1600 American Dollars and ornaments weighing 30 tolas were found missing. The complainant prayed that since robbery as well as house trespass was committed by unknown accused persons, therefore, they may be proceeded against. Complaint was accordingly written and sent to the police station for formal registration of the case. Resultantly, FIR Bearing No, 314 dated 23.5.2002 under Sections 380, 457 PPC read with Section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was registered at Police Station Kabal. Investigation was carried out and on completion thereof the accused persons were challaned to the Court for trial.
3. 3.Charge was accordingly framed against the accused persons to which they pleaded not guilty and claimed trial.
4. 4.At the trial, the prosecution in order to prove the charge and substantiate the allegation leveled against the accused persons produced nine witnesses, in all, P.W.
1. Tauqeer Ahmad is the complainant. He, at the trial, reiterated the version contained in the report/FIR, and produced the same as Exh. PW.1/2. P.W.2 Malik Ahmad Khan is a marginal witness of the recovery memo of a small saw which was allegedly used by the culprits in committing theft. He is also a marginal witness of the recovery memo Exh. PW.2/1 vide which a small tin wherein, the ornaments, allegedly taken away by the culprits, were kept by the complainant. P.W. 3 Hussain Ahmad alias Khan Nawab had also testified the report i,e, Exh. PW.2/1. P.W. 4 Jahangir is a marginal witness of the recovery memo Exh. PW.4/1 vide which a locket alongwith two finger rings, were taken into possession by the police from the possession of the accused persons. P.W. 5 Jahangir Khan, SHO, P.S. Matha had prepared challan in the case. P.W. 6 Umer Zeb is a marginal witness of the recovery memo Exh. PW.
5. 6/1 vide which the stolen money, allegedly deposited by accused Yar Muhammad, in MCB Branch, was recovered by the police. P.W. 7 Muhammad Ghawas Khan, ASI, is the Investigating Officer of the case. P.W. 8 Muhammad Ibrahim, Area Qazi, had on 10.4.2003, recorded confessional statement of the appellant. He produced the same in Court as Exh. PW.8/2. P.W.9 Habib Zaman, ASI had taken hand of the acquitted accused Shamshad in the case.
6. 5.On the conclusion of the prosecution evidence, the accused persons were examined under Section 342 Cr.P.C. In his above statements, the accused persons denied the charge and pleaded innocence. They, however, failed to lead any evidence in their defence or to appear themselves as their own witnesses in terms of Section 340(2) Cr.P.C.
7. 6.After hearing the arguments of the learned counsel for the parties, the learned trial Judge convicted the appellant and sentenced him to the punishments as mentioned in the opening para hereof. However, rest of the accused persons were acquitted of the charge, for want of proof.
8. 7.We have heard Mr. Atlas Khan, Advocate, learned counsel for the appellant, Mr. Muhammad Ali Saif, Advocate, learned counsel for the State and have also perused the entire record of the case with their assistance, carefully.
9. 8.Mr. Atlas Khan, Advocate, learned counsel for the appellant has contended that since conviction has been recorded against the appellant solely on the basis of his retracted confessional statement which was not corroborated, at the trial, therefore, it cannot sustain. He has added that the learned trial Judge, if at all, had come to the conclusion that appellant was involved in the offence then both the sentences inflicted on him under Sections 380 as well as 457 PPC should have been made concurrent as both the offences were cognate and committed in the course of same transaction.
10. 9.Mr. Muhammad Ali Saif, Advocate, learned counsel for the State, while controverting the contentions raised by the learned counsel for the appellant, has submitted that since confessional statement of the appellant was corroborated by the recovery of a part of the robbed money from the possession of the appellant, therefore, it was wrong to say that no evidence was available to corroborate the confessional statement. He maintained that legally, any confession, if found voluntary and true, was sufficient to bring home charge against its maker, even. without corroboration. He, however, in view of the fact that both the offences under Sections 380 and 457 PPC were committed in the course of the same transaction expressed his no objection in case the sentences of imprisonment inflicted on the appellant, on both counts, were made concurrent.
11. 10.We have given our anxious consideration to the respective contentions of the learned counsel for the parties. The prosecution case is based on the confessional statement i,e, Exh. PW. 8/3 of the appellant, the evidence of recoveries of the robbed property i,e, one locket, two finger rings and a sum of Rs, 50,000/- from the possession of the appellant. So far as confessional statement of the appellant is concerned, P.W. 8 Muhammad Ibrahim, Area Qazi, who had recorded the same, has, at the trial, in unequivocal terms stated that he had recorded the confessional statement after satisfying himself that confession was being made voluntarily and it was not extracted from the appellant. Though, in answer to Question No, 7, in his 342 Cr.P.C. statement, it was pleaded by the appellant that no confession was made by him and that the confessional statement i,e, Exh. PW.8/3 was fabricated by the police for the purpose of present case only yet, the stand taken by him is belied by the record inasmuch as not only Exh. PW.8/3 but all the questions put to him by the Magistrate prior to recording of the confession have also been authenticated by the appellant by affixing his thumb impressions thereon. Hence, the defence plea being sham, the confessional statement in question was rightly taken into consideration by the learned trial Judge, in recording conviction against the appellant.
12. 11.Further, the contention that since no corroboration to the confessional statement was available, therefore, it could not have been taken as an incriminating piece of evidence against the appellant too, is devoid of force because it has also come on record that a locket and two finger rings, which were subsequently identified to be the robbed property, alongwith a sum of Rs, 50,000/- were also recovered by the police from the possession of the present appellant, hence, recovery thereof rendered sufficient corroboration to the confessional statement. It would be pertinent to mention here that corroboration to a confession, retracted or un-retracted, is sought as a matter of prudence only otherwise, legally, the confession, if found voluntary and true, could be made the sole basis for conviction, particularly, against its maker. Reference, in this regard, may usefully be made to the following reported judgments:-- 1.Khuda Bakhsh vs. The State 2004 SCM R 331; 2.Muhammad Gul and others vs. The State 1991 SCM R 942; 3.The State through A.G.NWFP, Peshawar vs. Waqar Ahmad 1992 SCM R 950.
13. 4.Wazir Khan vs. The State PLD Supreme Court 168; 5.Muslim Shah vs. The State PLD Supreme Court 168; 6.Muhammad Ashraf vs. The State PLJ 2001 FSC 13; 7.Emperor vs. Lal Bakhsh AIR 1945 Lahore 43"
12. Adverting to the next contention of the learned counsel for the appellant that since both the offences i,e, theft as well as house trespass by night were cognate and committed in the course of same transaction, therefore, the learned trial Judge ought to have made the sentences concurrent, it may be noted here that though in the originally promulgated law i,e, the Criminal Procedure Code (Act No, V of 1898), under the illustration given in Section 35 Cr.P.C., it was provided that breaking into a house with intent to commit theft and stealing property therein were not distinct offences and, therefore, in a number of judgments it was held that infliction of separate sentences under Section 380 as well as 457 were illegal yet, since the illustration in question was subsequently, through amendment in the Criminal Procedure Code vide Act XVIII of 1923; detached therefore, view taken thereafter was that since there was nothing to prevent the Court under Section 35 of the Code to pass separate sentences for offences under Sections 457 and 380, therefore, the Court was competent to convict the accused under both. Reference, in this regard, may usefully be made to the cases of:-- (i)Kanchan Molla v.- Emperor, (1925) 12 AIR Cal. 1015 = 88 IC 997 = 26 Cr. LJ 1253 = 41 CLJ 563.
14. (ii)Bajo Singh v. Emperor, (1929) 16 AIR Pat. 263 = 1929 Cr. C. 23 = 120 IC 311 = 31 Cr.LJ 88 = 8 Pat. 274 = 10 PLT 353.
15. (iii)Mt. Champa Pasin v. Emperor, (1928) 15 AIR Pat. 326 = 108 IC 81 = 29 Cr.L.J. 325.
16. (iv)Paltu Singh v. Emperor (1918) 5 AIR Pat. 227 = 48 IC 677 = 20 Cr.LJ. 37 = 3 Pat. LJ 641.
17. (v)Shaikh Idris and others vs. Emperor AIR 1939 Patna 349.
18. And the same position continued up-till partition of the Sub-continent and thereafter even. Here, it would be advantageous to have a glance at Section 35 Cr.P.C. which reads as follows:-- "S. 35. Sentence in case of conviction of several offences at one trial.--(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Pakistan Penal Code sentence him, for such offences, to the several punishments prescribed therefore which such Court is competent to inflict; such punishments, when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.
(2) In the case of consecutive sentences, it shall not be necessary for the Court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court:-- Provided as follows maximum term of punishment.
19. (a)in no case shall such person be sentenced to imprisonment for a longer period than 14 years; (b)if the case is tried by a Magistrate, the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise of his ordinary jurisdiction, competent to inflict. (3) For the purpose of appeal, the aggregate of consecutive sentences passed under this section in case of conviction for several offences at one trial shall be deemed to be a single sentence."
20. Since the offence of theft in a dwelling house is not possible to be committed without house trespass and thus, in a sense, dependent and so connected therewith that former cannot be committed without committing the later, therefore, the Court, while inflicting sentences there under, must take into account the quantum of sentences in aggregate, and see that it should commensurate with gravity of the offence.
21. There is yet, another aspect of the matter. From the facts and circumstances of the instant case it appears that primarily, aim of the accused persons was to commit the offence of theft and house trespass was committed in order to achieve the very end. Section 457 PPC provides that the person who commits lurking house trespass by night, in order to committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine but it also specifies that if the offence intended to be committed, is theft then the term of imprisonment may be extended to fourteen years and, in this case, since the sentence of imprisonment inflicted on the appellant is seven years which implies that the act of committing "theft" by the appellant has contributed towards his "enhanced" punishment under Section 457, PPC , therefore, in order to avoid double jeopardy to the appellant, as he has also been convicted under Section 380 PPC, and also for the reason that both the sentences, when taken together, appear to be excessive, we are inclined to hold that sentences inflicted on the appellant, in the instant case, under Sections 380 and 457 PPC shall run concurrent with each other. Order accordingly.
13. The upshot of the above discussion is that this appeal is dismissed. The conviction and sentences recorded against appellant Yar Muhammad son of Muhammad Jan by the learned Additional Sessions Judged, Swat under Section 380 PPC read with Section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and Section 457 PPC are maintained.
22. However, both the sentences of imprisonment inflicted on the appellant shall run concurrently.
23. Benefit of Section 382-B, Cr.P.C. granted by the learned trial Court to the appellant shall remain intact. These are the reasons for our short order of the even date.