1. Brief facts giving rise to the present appeal are that on 18-111994 complainant Rahibdino alongwith his son Munir Ahmed and P.W. Sabir was present in his Arms and Ammunition shop situated in Garhi Khairo. At about 9-30 a.m. acquitted accused Khadim Hussain alongwith the two police constables came and told the complainant that appellant Zulfigar had called the record of Arms for checking purpose. The complainant took the record and went out of the shop but the appellant S.H.O. Zulfigar was not present. Then the acquitted accused Khadim Hussain and police constables took him to the Police Station, Daulatpur in a car where the S.H.O. Zulfigar was pfesent.
2. Thereafter, they put him in the lock-up. On the next day appellant Zulfiqar took him to the S. P.
3. Jacobabad who after verifying the record released him from the custody. Thereafter, he left the office of S. P. but the appellant Zulfiqar again put him in the vehicle, took him to the Police Station, Daulatpur and was again locked up. Thereafter, the appellant Zulfigar demanded Rs. 15,000 for his release. On 20-11-1994 his son Munir came to the police station. He met with the appellant Zulfigar who again demanded Rs. 15,000 from him for the release of complainant. P.W.2 consulted with the complainant and then on 21-11-1994 he gave Rs. 15,000 to appellant Zulfigar; therefore, at about 5 p.m. the complainant was released from the police station. Daulatpur where he was illegally detained. On 22-11-2004 he went to Shikarpur and made telegrams to higher authorities. On the same date he filed the direct complaint before the Court of Magistrate. The Magistrate took the cognizance and sent up case to the Court of Session for trial.
4. The learned 1st Additional Sessions Judge, Jacobabad held preliminary enquiry and examined three witnesses. Thereafter, process was issued against the appellant and acquitted accused Khadim Hussain for offences punishable under Sections 220, 343, 365, P.P.C. The appellant and acquitted accused appeared before the Court. The learned 1st Additional Sessions Judge tried the appellant, co-accused, convicted the appellant for offence punishable under Section 220, P.P.C. and sentenced him to suffer R.I. for two years and fine of Rs. 15,000 or in default thereof to suffer R.I. for two months whereas acquitted the co-accused under the impugned judgment dated 2-10- 1998.
5. I have heard the Advocate for the appellant, A.A.-G. for the State and perused the record of this case very carefully.
6. The learned counsel for the appellant has stated that the statements of P.Ws. are contradictory to each other; that the co-accused Khadim Hussain who had allegedly arrested the complainant has been acquitted therefore, on the same evidence the appellant cannot be convicted; that the independent witness Niaz has not been examined by the complainant which has created doubt in the prosecution story.
7. Conversely, the learned Assistant Advocate-General has stated that the prosecution case about the detaining of complainant by the appellant has been established from the evidence of all the three witnesses; that the complaint was lodged immediately after the release of the complainant and that the case of wrongful detention has been proved, therefore, he has supported the impugned judgment.
8. I have given due consideration to the arguments, gone through the material available on the record and found that the prosecution in order to prove the illegal detention relied upon the evidence of complainant, P.W.2 Munir Ahmed and P.W.3 Sabir. They gave the same details of the incident as mentioned in the earlier part of the judgment, therefore, need not to be repeated. The complainant specifically stated that when co-accused Khadim Hussain took him to the police station, appellant Zulfiqar was present and then they put him in the lock-up. He further deposed that after the S.P. released him, appellant again apprehended him and locked him up in the police station.The statement of the complainant went unchallenged as no cross-examination was conducted by the defence counsel to deny the above facts. Furthermore, the statement of complainant has been fully supported and corroborated by P.Ws. 2 and 3. They specifically stated that in their presence the co-accused Khadim Hussain and P.Cs. took the complainant with him.
9. The evidence of P.W.2 further reveals that he found his father complainant confined in the police station. He contacted with the appellant for his release who demanded Rs. 15,000 and he paid the amount to him and thereafter, the complainant was released. The statement of P.Ws. 2 and 3 also went unchallenged, as the appellant did not dispute the said facts in the cross-examination. Thus, from the evidence available on the record it has been established beyond any shadow of doubt that the appellant had wrongfully confined the complainant. As such his action comes within the ambit of Section 220, P.P.C.
10. 'The learned counsel for the appellant has argued that a case was registered against one Dur Muhammad for recovery of unlicensed weapon where it came to the knowledge of appellant that the complainant had tampered with the number on the weapon; therefore, in order to save himself he had filed the case against the appellant. A perusal of the said F.I.R. which has been produced by the co-accused Khadim in his statement recorded under Section 342, Cr.P.C. reveals that it was filed on 21-11-1994, two days after the incident of the present case.
11. 'The learned Assistant Advocate-General has stated that it appears that the said case was registered as a counterblast to the complaint filed by the complainant and in the F.I.R. the complainant has been involved on the strength of statement of an accused person; therefore, it will not help the accused in any manner.
12. 'I have examined the case and found that the incident took place on 18-11-1994, the F.I.R. was lodged after the two days of the said incident; therefore, the facts mentioned in the. F.I.R. were not available at the time when the incident of this case took place. Hence the said F.I.R. is not helpful to the appellant.
13. 'After considering the material available on the record, I am of the considered view that the prosecution has proved the case against the appellant beyond any reasonable doubt; therefore, the learned trial Judge has rightly convicted and sentenced him.
14. 'The learned counsel for the appellant has stated that the appellant is a Police Officer; that he is first offender; that if he is convicted then he will lose his job; that the appellant has repented over his action; therefore, he may be sent on probation instead of sending him to jail to serve out the sentence where he might spoil life and future by associating himself with hardened criminals.
15. 'One of the concepts of punishment is reformation. The present conditions of our jails are such where once a person is sent there then he may come out after serving out the sentence as a hardened criminal, therefore, instead of becoming a helping hand to the society he would become a cause of concern to it. It is possible that the appellant while mixing with the criminals might develop bad habits, which ultimately would not be beneficial to the society when he comes out after serving the sentence. The basic idea of putting the accused in jail is to reform him so that he may not commit offence when he comes out from the jail, therefore, a balanced approach is to be made while punishing a person keeping in view the reformation concept of punishment, as such, the option between reformation and punishment is an onerous one and it requires a judicious application of mind by the person or authority dealing with such offender. This election must be made keeping in view the ultimate good of providing justice to the victim, society and the offender within the framework of law. The greatest virtue of the law is its flexibility and it's adaptability. It must change from time to time so that it answers the demand of the people, the need of the hour and order of the day. One school of thought argues that the function of the law Court is that of a social reformer. It is important to note that the process of rehabilitation and reformation has to take care of both the offender and the victim.
16. 'One of the systems, which plays a very important role in the rehabilitation and reformation of the offender, is probation system. On first November, 1960 The Probation Offenders Ordinance, 1960" was promulgated under which the benefit of probation has been made available to the offenders.
17. The Ordinance was enacted to provide for the release of offenders on probation or admonition and for matters connected therewith. The Ordinance shifts emphasis from deterrence to reformation and from crime to the criminal in accordance with modern outlook on the punishment.
18. Reformation and rehabilitation are the keynote of the Ordinance. The object of the Ordinance is to prevent turning of offenders into criminals by the association with hardened criminals within the walls of the prisons. The method adopted is, to attempt their possible reformation instead of inflicting on them the normal punishment for their crimes.
19. 'The scope of applicability of the provisions of the Ordinance are that it has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as a useful and self-reliant member of the society without subjecting them to the deleterious effects of the jail life.
20. The Ordinance is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of the law is more to reform the individual offender than to punish him. The Ordinance empowers the Court to release on probation an offender found guilty of shaving committing an offence not punishable with death or imprisonment for life or for the description mentioned in Sections 4 and 5 of the Ordinance. It is true that nobody can claim the benefit of Sections 4 and 5 of the Ordinance as a matter of right and the Court has to pass appropriate orders in the facts and circumstances of each case having regard to the nature of the offence, its general effect on the society and the character of the offender, etc. It, generally, does not exercise its discretion in favour of the accused when he has committed heinous crime, which shakes the conscience of the Court. There may be cases under other laws, which may not justify the exercise of power under the Ordinance. The Court should be wary of extending benefit of the Ordinance to offences relating to corruption, narcotic drugs, etc. The Court is also slow to come to the rescue of the offender when he has committed economic offences for the reasons that the kindly application of the probation principle is negative by the imperatives of social defence. No chance can be taken by the society with a man whose anti- social operations imperil numerous innocents. He is the security risk. Secondly, these economic offences committed by the white-collar criminals are unlikely dissuaded by the gentle probationary process.
21. 'There may be cases where the Court may conclude that the offender could be released after due admonition and there is no need for putting him under the probation. Section 4 of the Ordinance takes care of such an eventuality. The sole intention of the Section .4 is that the accused should be given a chance of reformation without even subjecting him to the probation system. It cannot be disputed that even when a person is relieved after granting him the probation, he remains under the constructive control of Court through the probation officer. He is required to comply with the conditions of his release and is kept under constant supervision of the probation officer. This takes away some of the freedom of the offender, but Section 4 takes care of it.
22. 'The reformation and rehabilitation of the offender is incomplete unless he can live a life free from stigma. The stigmatization is bound to occur to offender once. a Court convicts him. On the conviction, the chances of survival through earning are jeopardized largely. Section 11 of the Ordinance gives effect to this rehabilitative concern by removing the disqualification attached to the conviction of an offender who has been released under Section 4 or Section 5 of the Ordinance.
23. This provision is vital' importance as it contributes significantly to the rehabilitation and reformation of the offender. The provision of Section 11, however, makes it clear that the benefit of this proviso cannot be extended to person who after his release on probation subsequently sentenced for original offence.
24. 'After keeping in view the concept of law, the facts and circumstances of the case I find the present case fit where the appellant can be sent on probation; therefore, he was sent on probation instead of sentencing him at once.
25. 'Above are the reasons of my short order, dated 11-9-2006 by which I had disposed of the appeal in the following manner:-- "For reasons to be recorded separately, the conviction and sentence are maintained. However, instead of sentencing the appellant at once the Probation Order is made by which the appellant is sent on probation for a period of three years subject to furnishing surety in the sum of Rs. 2,00,000 and execution of required bond as provided under Section 5 of the Probation of Offenders Ordinance, 1960. All the required documents are to be executed before the trial Court. After execution of required documents the trial Court shall hand over the custody of the appellant to the Probation Officer for doing the needful as per the provisions of the said Ordinance. The appellant is directed to appear before the trial Court on 18-9-2006. Till then the appellant to remain on same bail and bonds. The appeal is disposed of in the above terms.