Ahmad Din and ten others, namely, Akbar, Sajwara, Taj Muhammad Aziz, Habib alias Habibu, Anwar, Sharaf Din alias Sharfu, Iqbal alias Bali, Bulanda and Muhammad Shafi were tried for a number of offences under the Pakistan Penal Code. The trial Magistrate by his judgment dated 11th April, 1978, convicted and sentenced them as under :-
(1) Ahmad Din, Aziz, Taj Muhammad, Sajwara, Akbar, Jabal alias Bali, Auwar, Sharaf Din : Seven years' R. I. And a fine of Rs. 1,000 each, in default six months' R. I. And 20 stripes each under section 395, P. P. C.
Seven years' R. I. Each under section 452, P. P. C.
The sentences of imprisonment were ordered to run consecutively.
(2) Habib and Bulanda : Seven years' R. I. Each and a fine of. Rs. 1,000 in default six months R. I. And 20 stripes each under section 395, P. P. C.
(3) Muhammud Shafi : Seven years' R.
1. And a fine of Rs. 1,000 in default six months' R. I., under section 412, P. P. C.
Anwar, Iqbal alias Bali, Muhammad Shafi and Sharaf Din have filed Criminal Appeal Nos. 318/78, 334/78, 338/78 and 382/78, respectively, whereas Taj Muhammad, Sajwara, Muhammad, Akbar, Ahmad Din, Aziz, Habib and Bulanda have filed Criminal Appeal No. 311/78. One of the accused, Aziz, died in Jail. His appeal as such has abated. All these appeals shall be decided by this judgment.
2. A dacoity took place on the night between 12th/13th December, 1977, in the house of Mst. Fateh Bibi in village Chuha Jhurmat, within the jurisdiction of Police Station Sadar Kasur. The occupants of the house, Nazir Ahmad, his brothers, Umdr Din, Sohna, Mukhtar, Muhammad Hussain and the remaining family members were asleep. Three of the family members, namely, Mahanda, Yaqoob and Akbar were sleeping at the well because their cattle were there. Nazir Ahmad was sleeping in the verandah, where paddy was lying. In the adjoining room Mst. Fateh Bibi along with other family members was asleep. It was at about midnight that Nazir Ahmad heard some noise. He woke up and saw a person armed with dang entering the compound. The intruder unbolted the door. He was followed by six other persons, who also came into the compound. Three of them were armed with pistols and the remaining three had clangs. Nazir Ahmad enquired from them as to why were they there. He was abused. One of the dacoits told the others to start firing. Nazir Ahmad then shouted "chor", "chor". He was hit by one of the dacoits with a dang, who gave him two blows. Then the others armed with dangs hit him. Nazir Ahmad cried. His two brothers. Sohna and Umar Din, came in the compound. Sohna too was attacked with a dang. Nazir Ahmad was also given three dang blows. The dacoits then broke open the door of the residential room where Mst. Fateh Bibi was asleep. Those three who had dangs entered the room. One stood at the door. After entering the room, they broke the lock of a jisti box, removed a pot, which contained golden ornaments. Mst. ,Fateh Bibi resisted. She was hit by one of the dacoits with a butt of the pistol. The dacoit standing outside the room was firing after short intervals. Sohna son of Bahadur turned up on hearing the shots. He had his licenced rifle with which he fired three shots. The accused got scared. However, they decamped with the golden ornaments. Nazir Ahmad and Umar Din chased them for about two acres, but it was a futile effort. The entire incident lasted for about half an hour. A case was registered at Police Station Sadar Kasur on 13th December, 1977 at 4.30 p.m. On the basis of the statement made by Nazir Ahmad to Muhammad Sadiq Sub-Inspector in the hospital, where he had been admitted. I may mention here that in the first information report the names of the accused were not given. The complainant only gave the description of the accused persons as best as he could remember. Eight of the accused were arrested on 4th January, 1978 ; one was arrested on 5th January, 1978 and one on 4th February, 1978.
3. Identification parade was held on 8th January, 1978, by Syed Anwar Hussain Shah, Magistrate First Class, Kasur. This was followed by the recovery of different golden ornaments from the accused. During the commission of dacoity, four persons namely, Mst. Fateh Bibi, Umar Din, Nazir Ahmad and Sohna, were injured by the dacoits. They were medically examined.
4. The prosecution led different types of evidence, i.e. Ocular evidence, recovery, identification parade, evidence of the tracker and finally the medical evidence.
5. The accused pleaded not guilty and denied the allegations levelled against them. Muhammad Shafi produced Abdul Majid (D. W. 2), Muhammad Yousuf (D. W. 3), Muhammad Zaman (D. W. 7) and Muhammad Akbar (D. W. 8) in defence. Mirza Rashid Beg (D. W. 9) deposed that he produced Anwar and Iqbal before the police on 1st January, 1978, whereas Haji Gulzar Ahmad (D. W. 10) stated that he produced the remaining accused before the Police on 1st January, 1978. Hafiz Muhammad Sharif (D. W. 1) was produced to prove his report in Daily `Nawa-i-Waqt.'
6. I shall first take up the ocular testimony and then refer to the other evidence. I would like to start with the evidence of Mst. Fateh Bibi, because she was the first victim of dacoits. Before discussing the ocular evidence I may observed that immediately after the arrest of the accused an identification parade was held in which the eye-witnesses identified the accused. The eye- witnesses did not name the accused in the Court but merely pointed towards them according to the part attributed to each one of them. According to Mst. Fateh Bibi, Sharaf Din who was armed with a pistol, hit her on her face with the butt and he along with Aziz, Ahman and Iqbal took the ornaments. These accused were inside the room. Mst Fateh Bibi further deposed that during the struggle she received injuries under the ear, left knee and left ankle. She also saw Nazir and Sohna being injured. Her version was that seven accused were in the courtyard. Three were armed with pistols and four had dangs. Akbar was standing on the outer door with a pistol. Ahman, Aziz, Sharaf Din, Iqbal, Taj and Sajwara were inside the room.
7. Umar Din said that he was sleeping in the house along with Sohna. Nazir was sleeping in the verandah near the moonji. At midnight they heard some noise. Sohna and Umar Din came out.
They saw Nazir Ahmad being attacked. Umar Din grappled with the assailants. He was hit on the back with the Bang. Anwar, Iqbal and Taj broke open the door of the room of Fateh Bibi and entered therein. Sharaf armed with dan,g stood at the door. Sajwara was standing outside the door. He fired three shots. Two lanterns were lit, one inside the room and the other in the verandah. The three accused who entered the room had a torch and it was in the light of torch that Umar Din identified Taj, Sharaf, Iqbal, Anwar, Akbar, Aziz and Ahman. According to the witness they entered the compound and Sajwara was standing outside the room with a pistol. Sohna and Nazir were injured by the accused. Sohna son of Bahadur fired three shots with his rifle. The accused ran away with the ornaments. Umar Din and Nazir chased them for some distance.
8. Nazir's version was that Taj, Sharaf, Iqbal and Akbar had dangs, Sajwara, Anwar and Ahmad had pistols. Sajwara stood near the door. Aziz entered the compound with a pistol. Taj gave a clang blow on the right arm and another blow on the left arm of Nazir. Nazir raised hue and cry on which Sohna and Umar Din came there. One of the accused inflicted a clang blow on the head of Sohna and the, other accused went on giving "orders" for firing. Nazir received three clang blows. The accused broke the chhothi of the door of the room where Fateh Bibi was sleeping. Taj, Iqbal, Sharaf and Akbar entered the room, injured Fateh Bibi, broke the lock of Jisti box and brought out a pot containing ornaments. Fateh Bibi tried to snatch the pot, but she was injured in this scuffle. Nazir received three injuries on his head.
Umar Din was also injured.. Sohna fired with his gun. Nazir and Umar Din chased the accused for about two killas.
9. The last witness is Sohna. According to him, Akbar, lqbal, Taj and Sharaf had dangs. Sajwara, Aziz, Anwar and Ahmad Din had pistols. Sajwara was standing on the door of the house, the remaining accused inflicted injuries on Sohna and Nazir. The witness then said that at the time of occurrence he had no knowledge of the names of the accused. When Sohna came in the compound he was given a dang blow by Taj on his head on which he fell down. The accused then ran towards his residential house. Taj, Akbar, lqbal and Sharaf entered the room where Mst. Fateh Bibi was sleeping.
Then the witness corrected himself by saying that Sharaf stood on the door of the room in which Fateh Bibi was present. Aziz, Ahmad and Anwar were standing in the chauntra. Sohna then entered the room of his mother where a lantern was lit. The accused had a torch. Those accused who entered the room of Fateh Bibi injured her. Taj, Akbar, and Iqbal then broke the lock of jisti box and took out a pot containing golden ornaments. Ahmad inflicted a blow on the face of Fateh Bibi with the handle of pistol.
10.. I shall now deal with the remaining evidence. In this sequence I may further mention that the description of the ornaments stolen was not fully given in the first information report. However, a supplementary statement of Nazir Ahmad was recorded by Muhammad Sadiq Sub-Inspector the same day in which he said :{{URDU TEXT}} On 8th January, 1978, identification parade was held by Syed Anwar Hussain, Magistrate First Class, in District Jail, Kasur. Nazir P. W. Correctly identified Akbar, Iqbal, Ahmad, Sajwara and Taj ; Sohna P.
W. Identified Akbar, Iqbal, Ahmad, Sajwara and Aziz ; Umar Din P. W. Identified Sharaf, Iqbal, Ahmad, Sajwara and Aziz, while Fateh Bibi identified Akbar, Iqbal, Ahmad, Sajwara, Aziz and Sharaf. However, the witness admitted in cross-examination that Sharaf accused raised an objection to the effect that all the eight accused while in custody were shown to the witnesses. Similarly, it was also admitted that Sharaf suggeSted that while in custody their photograph was also taken. The Magistrate also stated that Habib and Balunda were not made to join the identification, because Muhammad Sadiq Sub-Inspector told the Magistrate that their identification was not necessary.
On the same day Pathana tracker identified the footprints of Ahmad, Anwar, Sharaf Din, Sajwara, Aziz, Habib, Taj and Bulant.La.
12. On 15th January, 1978, Muhammad Sadiq Sub-Inspector recovered different items of stolen property from different accused as also the weapons used during the commission of dacoity, the details of which are as follows :-
(1) Aziz accused- One golden Inam and one golden Mohar vide memo. Exh. P. D./1. One pistol and two live cartridges vide memo. Exh. P. E,/l.
(2) Sharaf Din accused- One Mohar. Vide memo. Exh. P. R./1.
(3) Habib accused- One golden Mohar vide memo. Exh. P. F./1.
(4) Anwar accused- One golden Mohar vide memo. Exh. P. G./1.
One pistol and two live cartridges vide memo. Exh. P. H./1.
(5) Sajwara accused- Golden ear-rings and one golden Mohar, vide memo. Exh. P. J.11. One pistol and two live cartridges vide memo. Exh. P. F,/2.
(6) Akbar accused- One golden Tikka Bandi and one golden Mohar vide memo. Exh. P. K./2.
(7) Bulanda accused- One golden Mohar and one golden lady ring vide memo. Exh. P. M./1.
Taj accused-- One golden Kaintha vide memo. Exh. P. N./1.
(9) Ahman accused- One golden Kaintha vide memo. Exh. P.
0./1.
One pistol and three live cartridges vide memo. P. Q./1.
(10) lqbal accused- One golden Mohar vide memo. Exh. P. S./1.
The recovery memos. Were attested by Masta son of Lakha and Akbar Ali son of Hakam Ali.
On 23rd January, 1978, Akbar got recovered six sotas vide memo. Ex. PR/2 which was witnessed by Sohna son of Khan 'I3ahadur and Akbar All son of Hakam Ali.
13. The points urged by the defence counsel were that the prosecution has failed to connect the appellants with the alleged crime. It was submitted that none of them was named in the first information report, description given in the report was not sufficient to connect the appellants with the crime. It was very vague. It was next contended that the night was dark. The occurrence was alleged to have taken place at about midnight. There was not sufficient light to identify who the culprits were. The evidence led by the prosecution regarding identification was not sufficient. It was further submitted that if the evidence pertaining to identification is discarded, then the prosecution has no legs to stand upon, because then the ocular evidence would become doubtful and the remaining evidence, i. e. That of recovery, tracker and the medical would be of no use to the prosecution. With regard to the recovery it was contended that it was fake. Even the recovery witnesses-were not independent. They were related to the complainant and came from a distant place from the place of recovery, the recovery as such was in contravention of section 103, Cr. P. C.
Reference was also made to the evidence led by the appellants in defence to which I shall refer later on. However, the main emphasis of the learned counsel were on the fact that the case against the appellants had not been proved beyond reasonable doubt, their convictions and sentences, therefore, were liable to be set aside.
14: Learned counsel for Muhammad Shafi who was convicted under section 412, P. P. C. Argued that his client was innocent. He was implicated in this case, because his brother-in-law filed two petitions in this Court, one under section 491, Cr. P. C. (Cr. Misc. No. 71-H-78) and the other under Article 199 of the Constitution (Writ Petition No. 617 of 1978). It was this fact which annoyed the police and the appellant was roped in. Learned counsel submitted that the habeas corpus petition was filed on 28th January, 1978 against the Superintendent of Police, Deputy Superintendent of Police, Kasur and the Station House Officer, Police Station Sadar Kasur, and the learned Judge disposed it of on 31st January 1978, with the following order :- "States that the police is in search of only one of the alleged detenus namely Muhammad Shafi in a dacoity case F. I. R. 182 dated 13th December, 1977, P. S. Sadar Kasur. None else is required. The police is not aware of their whereabouts.
(2) The petitioner may, in the circumstances, get a bailiff for the recovery if and when he comes to know of their exact location or. If he suspects the commission of some crime he may get a case registered in their absence."
The constitutional petition was filed on 6th February, 1978, against the aforesaid Police Officers including the Station House Officer, Police Station Bhai Pheru. It was admitted by a learned Judge on 30th April, 1978 after perusing the record and is still pending.
15. I have also heard the learned counsel appearing on behalf of the State in all these appeals.
16. No doubt the question of identification in this case is very important, but that is not the only important point. This aspect is to be considered in the light of other evidence. The most important piece of evidence is the testimony of the four persons who were injured. Their evidence becomes more important, because their presence at the spot on that particular time was natural. Therefore one fact which is established . Beyond any shadow of doubt is that these persons were injured in the alleged incident. The second point to be considered is how far their testimony can be relied upon. Here I would like to mention the injuries of these persons :-
(1) Mst. Fateh Bibi-
(1) A contused wound, 2k" x 1", under the left eye.
(2) An abrasion 1" x 1/2', on the outer side of left leg, lower part.
(3) An abrasion, .1/4" x 1/8", on the lower part of the left ear, near the ear ring hole.
(4) Complained of pain on her left knee and back of her trunk.
All the injuries were caused by a blunt weapon and were simple in nature. Nazir Ahmad -
(1) A lacerated wound, 1" x 1/6' scalp deep, on the top of head.
(2) Two lacerated wounds, 3/4" x1/8- scalp deep, each on the head, 1" behind and right to injury No. 1.
(3) A lacerated wound, 1/4' x 1/4" skin deep, on the right parietal region of head.
(4) Swelling, 2. x 2', on the inner side and back of left forearm near wrist.
(5) Swelling, 21" x 2" on the outer side and back of left elbow.
(6) Contusion, 1" x 1/2" on the outer side of left arm near shoulder.
(7) Swelling, r x 2", outer side right shoulder.
(8) Swelling, 2' x 2", on the back of right forearm near elbow. The injuries were caused by blunt weapon. Injuries Nos. 1, 2 and 4 were kept under observation and others were simple. Sohna- A lacerated wound, 2t" x 1/4" scalp deep, on the head, 1/4' right of midline, 1/2" above hairy margin.
The injury was caused by blunt weapon and was kept under observation. Umar Din had no injury but he complained of pain. The nature and type of injuries show that the witnesses were attacked by the dacoits when they were close to them.
16. It has come in evidence that two lanterns were lit, This fact to my mind is very natural and was not a "manoeuvre" by the police. Reasonable explanation has been given for this, which was, that it was dark winter night, the complainant party had some paddy lying in the verandah and there were some cattle at the well. The version that the dacoits had a torch is also very natural, because for the commission of an offencelike dacoity, the accused would naturally choose a dark night and odd hour and come prepared with necessary "equipments," torch being one of the important "tools."
It is in the evidence of Mst. Fateh Bibi that the accused broke the door, entered the room, demanded the keys from her which she refused. They then broke the box, removed a pot which contained the ornaments. When she resisted all of this, she was assaulted. This part of the incident though may not have taken very long but the whole thing happened face to face and it has never been the prosecution case that anyone of the dacoits had covered his face.
17. The first person who came to the rescue of Mst. Fateh Bibi was Nazir. He too was hit and his injuries show that he was hit from a close quarter. Nazir had eight injuries which means that the assailants must have taken some time to injure him. Umar Din and Sohna were also attacked.
Recovery took place on 15th January, 1978, from different accused of different items, the details of which have already been given. It was challenged by the defence on the ground that section 103 of the Code of Criminal Procedure had been violated. According to section 103, "the officer or other person about to make it (search) shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search ". The section further says that "the search shall be made in their (witnesses) presence* ".
The sole objection of the defence was that the recovery witnesses came from a far off place. This fact has not been established by the defence. Moreover, the words used in the section are "inhabitants of the locality". The word 'locality' has not been defined nor could it mean a particular distance, but the word locality shall have to be taken into consideration in accordance with the circumstances of each case. Even otherwise I find that the defence has not been able to bring anything substantial on the record so as to discredit the evidence of the recovery witnesses.
18. The contention of the learned counsel that none of the eyewitnesses identified all the accused : hence the case becomes doubtful, is without any substance. The reason being that the gang had divided itself in different groups. Each party was assigned a particular post and particular job.
Some stood at guard, others entered the room and the remaining committed the dacoity. In a situation like this, it is not expected from the eye-witnesses to identify all the accused. Nevertheless, I find that in the identification parade Akbar, Iqbal, Ahman and Sajwara were identified by all the eye-witnesses.
19. I have considered the evidence of the tracker. It has not impressed me. Therefore, I do not think it could be relied upon. The same is accordingly discarded. All the accused were not arrested on one day. Nine were arrested on the 4th January, 1978 and one on the following day. Identification parade took place on 8th January, 1978. Three days intervening period cannot be taken to be inordinate delay in holding the identification parade keeping in view the number of the accused and nature of offence. have already referred to the objections of certain accused at the time of identification parade, but these objections were not supported either by any direct or indirect evidence. Hence, I am not prepared to discard the evidence of identification parade.
20. Learned counsel appearing on behalf of Anwar submitted that his client was made to join the identification parade, but he was not identified by any of the eye-witnesSes. This is correct, but I shall have to see whether the remaining evidence in this case, which will be ocular and the recovery would be sufficient to connect him with the alleged crime.
21. Muhammad Shafi appellant is a goldsmith by profession. The plea taken by him has already been referred to above in the submissions made by his ,learned counsel. I have examined that aspect carefully. The occurrence according to the first information report took place on the night between 12th /13th December, 1977. Both the habeas corpus petition and the constitutional petition were filed after that. No doubt allegation was levelled against the local police and even at the Bar learned counsel vehemently argued that the involvement of Muhammad Shafi was due to displeasure of senior police officers like the Superintendent of Police concerned. However, I am not convinced with this explanation. On the other hand it appears that when the first information report was registered, the aforesaid two petitions were filed as a counter blast, because the appellant apprehended some danger. So to safeguard his position and to set up a fool proof plea, the appellant took up this position. I fail to understand why without any rhyme or reason the police picked the appellant from the locality for extracting gold from him. The recovery took place at his instance from his shop within such a time from which it could safely be inferred that he retained the ornaments knowing the same to be stolen property.
22. For the foregoing discussion I am of the view that the ocular evidence, corroborated by the recovery, further supported by identification, proved the case against Ahmad Din, Iqbal, Sharaf, Akbar, Taj and B Sajwara. Habib and Bulanda were not put to identification and Anwar was not identified. Nevertheless there had been recoveries from thes persons and they were duly named by the eye-witnesses. So, I am of the view that even against them the prosecution has proved its case.
Muhammad Shafi could not be convicted under section 412, P. P. C. Because there is no evidence that he had any knowledge about the dacoity. So I alter his conviction under section 411, P. P. C.
Barring Muhammad Shafi, the remaining appellants were convicted under section 395, P. P. C. They have not been convicted under section 148/149, P. P. C. From the evidence discussed above, it is proved that these accused fromed themselves into an unlawful assembly and in prosecution of the common object of that assembly committed the offence. So I convict them under section 148/149, P. P. C. And sentence them to one year's R. I. Each.
23. This leaves me to consider the question of sentence. I am constrained to observe that this has not been dealt with in a judicial manner. The convicts have been sentenced to imprisonment, fine as well as whipping. The sentences under sections 395 and 452, P. P. C. Have been made consecutive, which means that those accused who have been convicted under sections 395 and 452, P. P. C. Shall be behind the bars fo a period of fourteen years. No doubt, dacoity is a heinous offence, never theless, even in the matter of sentence, the Presiding Officer/Judge is t c exercise his discretion in a judicial manner and must not act whimsically so as to give an impression that he is trying to be vindictive. Such an action is contrary to law, and administration of justice.
I first take up the case of Muhammad Shafi. His conviction has already been altered to one under section 411, P. P. C. I think in his case the sentence already undergone would meet the ends of justice and I . However, the sentence of fine is upheld. Habib and Blunda have been convicted under section 395, P. P. C. Their sentence is reduced to five years' R. I. The sentence of fine is maintained. Ahmad Din alias Ahma, Akbar, Sajwar Muhammad, Taj Muhammad, Anwar, Sharaf Din and Iqbal alias Bali were convicted under two counts and sentences were ordered to run consecutively. Their sentence is reduced to five years R. I. Under each count, which shall run concurrently. The sentence of fine is maintained. As already observed, barring Muhammad Shafi, the remaining appellants have been convicted under section 148/149, P. P. C. And sentenced to one year's R. I. Each. That sentence shall also run concurrently with other sentences.
24. The trial Magistrate also ordered twenty stripes to the appellants with the exception of Muhammad Shafi. While ordering so, the Magistrate did not even care to mention as to under which provision and statute this sentence is to be carried out. In this sequence I had to examine the statute dealing with whipping. Its history is very interesting but that is not relevant for the purpose of disposal of these appeals. Nevertheless while going through the Gazette of India February 24, 1864 I came across a a passage which is very important from legal point of view to consider the question of sentence of whipping. It was during the debate on the Whipping Bill that Hon'ble Sir Charles Trevelyan said that it was very important that the Council should approach the consideraiion of this matter, duly appreciating the gravity of the issue before it ; and he thought he could not do better than commence the observations he had to make by reading the declaration of principle contained in the preamble of Regulation II of 1834, the Act passed by Lord William Bentinek for the abolition of flogging. The preamble was as follows :- "Whereas corporal punishment has not been found efficacious for the prevention of crime, either by reformation or by example; and whereas it is always degrading to the individual. And by affixing marks of infamy, which often are for ever indelible, prevents his return to an honest course of life and whereas there is every reason to fear that it is in many cases judiciously and unnecessarily inflicted, becoming a grevious and irremediable wrong ; and whereas it is becoming and expedient that the British Government as the paramount power in India, should present in its own system the principles of the most enlightened legislation, and should endeavour, by its example. To encourage the Native States to exchange their barbarious and cruel punishments of maiming, of torture, of loss of limb, for those of a more merciful and wise character by which the individual may #TBS By the said Ordinance in section 4-A of the Act in subsection (1), the #TBE be reformed and the community saved from these brutalizing exhibitions ; and whereas it has been deemed expedient to authorize the substitution of a fine in lieu of labor, in certain minor offences, for which the Criminal Courts are empowered by existing Regulations to pass sentence of imprisonment with labor, either with or without irons ; ...........................
Whipping Act, 1909, which is still alive was amended off and on. Some amendments came in the year 1963, by the Whipping (West Pakistan) (Amendment) Ordinance, 1963 XLIII of 1963), when sections 3-A and 4-A were added. Section 3-A of the Ordinance dealt with offences which may be punished with whipping in lieu of or in addition to other punishment. It includes the commission, abetment or attempt to commit the offences punishable under section 325 or section 326, P. P. C.
By cutting the nose or otherwise disfiguring a male ; sections 354 and 509, P. P. C. And sections 4, 5 and 6 of the West Pakistan Pure Food Ordinance, 1960.
Similarly compulsory whipping was introduced in certain offences by section 4-A, which dealt with the commission. Attempt to commit or abetment of offences punishable under sections 363 to 373 (both inclusive) ; section 325 or section 326 of the Pakistan Penal Code causing disfiguration of a woman in face or body, or maining a child under the age of fourteen yea rs. Subsection (2) of section 4-A of the Act is very important and is to the following effect : - "Notwithstanding anything contained in section 393 of the Code of Criminal Procedure, 1898 (Act V of 1898), a male sentenced to imprisonment for more than five years (not being a sentence of death or transportation) or any male whom the Court considers to be more than forty-five years of age, shall be liable to the punishment of whipping under subsection (1)."
Thereafter section 3-A of Whipping Act, 1909 (IV of 1909) was omitted by Whipping (West Pakistan Amendment) Ordinance, 1969, (VI of 1969) and by means of the same Ordinance section 4 was substituted by a new section, which is to the following effect :- "4. Offences punishable with whipping in lieu of or in addition to other punishment.- Whoever-
(f) voluntarily causes hurt in committing or attempting to commit robbery, as defined in section 390 of the Pakistan Penal Code ;
(g) commits vievoity as defined in section 391 of the Pakistan Penal Code ; may, subject to the provisions of section 4-A, be punished with whipping in lieu of or in addition to any other punishment to which he may for such offence, abetment or attempt be liable under the said Code." comma appearing at the end of clause (b) was replaced by a semi-colon, and thereafter the following new clause was added :-
(c) abets, commits or attempts to commit, in respect of. Or involving, cattle, an offence-
(i) taking gift for recovering stolen property punishable under section 215 of the Pakistan Penal Code ;
(ii) theft punishable under section 379, 380, 381 or 382 of the said Code ;
(iii) dishonestly receiving or retaining stolen property punishable under section 411 of the said Code ; or
(iv) lurking house-trespass or house-breaking punishable under section 453, 457, 458, 459 or 460 of the said Code."
In this sequence section 393 of the Criminal Procedure Code which reads as follows, is also important :- 'No sentence of whipping shall be executed by instalments and none of the following persons shall be punishable with whipping, namely,
(a) females ;
(b) males sentenced to death or to imprisonment for life or to imprisonment for more than five years ;
(c) males whom the Court considers to be more than forty-five years of age."
In the present case the appellants were convicted under sections 395 and 452, P. P. C. And as already observed some were sentenced to seven years and others to fourteen years. It was held in Jagannath v. Emperor (1) that additional sentence of whipping cannot be passed on a person who has received an adequate substantive sentence for an offence under section 436, Penal Code.
Another important case in this connection is Akbar and others v. Emperor (2). The convicts in this case had been sentenced to seven years rigorous imprisonment, including three months' solitary confinement and 30 stripes, under sections 376 and 376/109, P. P. C. With regard to the question of sentence of whipping, the Bench observed :- "With regard to the sentences the question arises whether the appellants could legally be sentenced to whipping in addition to seven years' imprisonment. Section 393, Criminal P. C. Runs as follows :- "No sentence of whipping shall be executed by instalments ; and none of the following persons shall be punishable with whipping nemely ; (a) females ; (b) males sentenced to death, or to transportation, or to penal servitude, or to imprisonment for more than five years ; (c) males whom the Court considers to be more than forty-five years of age,"
(1) AIR 1928 Oudh 111 (2) AIR 1920 Lah. 364 Mr. Ram Lal on behalf of the appellants contends that under Cl. (b) of that section a sentence of whipping cannot be combined with a sentence of imprisonment for more than five years, whilst Mr. Dalrymple on the other side argues that the word 'sentence' has no reference to the sentence passed in combination with the sentence of whipping, but means 'already sentenced.' The only authority to which we have been referred in this connexion is High Court Proceedings, of 19th April, 1876 (1876-78)1 Mad. 56, which relates to the construction of section '7 of the old Whipping Act 6 of 1864. That section ran as follows :- "No female shall be punished with whipping, nor shall any person who may be sentenced to death.
Or to transportation, or to penal servitude, or to imprisonment for more than five years, be punished with whipping."
It was held that those words did not touch the legality of the sentence, but the legality of the punishment, and that the meaning was simply that the status of women and that of persons under a particular sentence rendered it illegal to inflict the punishment of whipping. We are inclined to take a similar view in construing section 393, Criminal P. C. The first nine words of the section clearly relate only to the execution of the sentence of whipping, and the whole chapter in which the section occurs is one dealing with the execution of sentences. The one exception is to be found in section 391 (3), which provides that no accused person shall be sentenced to whipping in addition to imprisonment when the term of imprisonment to which he is sentenced is less than three months. The distinction between the words 'shall be sentenced' in section 391 (3) and `shall be punishable' in section 393, is noteworthy. We think therefore although the point is not free from doubt, that the provisions contained in section 393, clause (b) that the persons mentioned therein shall not be punishable with whipping, refers to the execution, and not to the passing of the sentence of whipping. The section makes it illegal to execute the sentence of whipping on persons who have been sentenced to imprisonment for more than five years, and consequently the sentences of whipping passed in this case cannot be carried out. It follows that the sentences themselves are illegal as a sentence cannot be passed of which the execution is prohibited by law."
25. I am, therefore, of the view that in this case substantive sentence has been passed ; hence there was no legal justification for the sentence of flogging The only incentive, therefore to the Magistrate appears to be D the order of the day. I would, therefore, remit this sentence of appellants Ahmad Din, Taj Muhammad, Sajwara, Akbar, lqbal, Anwar, Sharaf Din, Habib and Bulanda.
All the appeals are disposed of accordingly.
26. Before concluding I may further observe that in the connection 1 also noticed Execution of the Punishment of Whipping Ordinance, 1979 (IX of 1979), which provides the mode of execution of sentence of whipping. E Here I would like to refer to the following passage from Tafheem-ulQuran, volume III at page 340, para. 23 under the commentary of Sura 'Al-Noor' by late Abul Aala Maududi {{URDU TEXT}} In this sequence the author further wrote at page 341 : {{URDU TEXT}} So a question arises that with the exception of those offences for which there is a clear mandate in Quran of flogging, would it still be worthwhile to keep the Whipping Act on the statute book as well as its mode of execution ; is this Act in accordance with the injunction of Quran ; Sayings of the Holy Prophet (Peace be upon Him) ; dignity of a man and according to public conscience ?
Is it really Islamic ?