1. SALAHUDDIN AHMED, J.---This appeal by special leave is from the order of a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench, dismissing the appeal of the appellant and his co-prisoners, and inter alia, enhancing the appellant's sentence from three years' rigorous imprisonment to seven years' rigorous imprisonment under section 395/397 of the Pakistan Penal Code.
2. Leave was granted to consider the limited question whether the High Court, in the absence of any appeal from acquittal, had jurisdiction to alter the sentence of the appellant under section 395, P. P.
3. C. To section 397, P. P. C. It was, however, held that the finding of facts given by the Courts below was based on proper appreciation of evidence and called for no interference.
4. The appellant at the material time was an Assistant Sub---Inspector of Police, and the allegations against him were that he along with three constables came to the house of one Parial and had tied him up after having slapped him. The appellant was armed with a revolver and the three constables were armed with a 303 rifle each. Parial was told that there was a report against him of theft of cattle belonging to Haji Amir Bakhsh. Although Parial informed the appellant and showed him the order that the former and his brothers had already been allowed anticipatory bail by the Court of Session, they were taken to the Police Station and locked up there, and 16 heads of cattle were also taken away from the cattle-shed of Parial and his brothers at the instance of, the appellant. Parial and his brothers were released on the next day on payment of Rs. 1,000 as bribe.
5. Parial lodged a direct com--plaint of robbery and dacoity before the Sessions Judge. After an inquiry by a Magistrate the appellant and the three constables were ultimately tried by the Sessions Judge on charges under sections 342, 395 and 397 of the Pakistan Penal Code, and were convicted and sentenced under sections 342, 392 and 395, P. P. C. To 3 years' rigorous imprisonment each under each of the three sections. Upon appeal the High Court, inter alia maintained the conviction of the appellant and reduced his sentence under section 342, P. P. C. To one year rigorous imprisonment but enhanced his sentence under section 395, P. P. C. To seven years' rigorous imprisonment under section 395/397, P. P. C.
6. Mr. M. Anwar, learned counsel appearing on behalf of the appellant has contended that the High Court on appeal could not enhance the sentence of the appellant. It appears from the judgment of the High Court, however, that on behalf of the State there was an application under section 439 of the Criminal Procedure Code for enhancement of sentence and the High Court in the exercise of its powers under section 439, Cr. P. C. Enhanced the sentence. It has never been the case of the appellant that lie had had no opportunity of being heard in his defence. The High Court could even suo motu act under section 439 of the Criminal Procedure Code.
7. Mr. Anwar has next contended that inasmuch as the appellant had been acquitted of the charge under section 397, P. P. C., he could not be convicted thereunder unless there was an appeal by the State from the order of acquittal.
8. This contention is misconceived. Section 397, P. P. C. Is not a separate offence by itself. It merely prescribes certain minimum sentence of imprisonment for a person convicted of dacoity under certain circumstances.
9. Section 391 defines `Dacoity' and section 395 prescribes the punishment for dacoity to be transportation for life, or rigorous imprisonment for a term which may extend to ten years, and makes the offender liable to fine also. Section 397 provides that in certain aggravated cases of dacoity the punishment shall not be less than seven years. It would be absurd to consider that section 397, P. P. C. Is an offence by itself, for, if it be so the while `Dacoity' simpliciter is made punishable with severer sen--tences, viz. Transportation for life or with rigorous imprisonment for a maximum period of 10 years, and is also made liable to fine, dacoity under section 397, certainly an aggravated form of dacoity, would only be punishable with imprisonment for seven years only. And as only `imprisonment' has been mentioned and `not rigorous imprisonment' as in the case of section 395, P. P. C., the aggravated form of dacoity under section 397, P. P. C. Would be punishable with even simple imprisonment. Such an absurd intention cannot be attributed to the Legislature under the accepted canons of Constitution.
10. The view we have taken finds support from a decision of the Allahabad High Court in Dulli and others v. Emperor (AIR 1924 All. 305). In the case under report Sulaiman, J., one of the ablest Judges of the Indo-Pakistan sub-continent has observed as follows :- "In the first place, section 397 of the Indian Penal Code does not contain any substantive offence, but merely prescribes the minimum punishment which can be passed if robbery or dacoity is attended with certain circumstances mentioned therein. It follows that a conviction merely under section 397 has no meaning. The conviction in the case of a dacoity should be under section 395 read with section 397 of the Indian Penal Code."
11. Similar view has been taken in two other decisions, viz. Emperor v. Ali Mirza (AIR 1924 Cal. 643) and Maru v. Emperor (AIR 1937 Lah.561).
12. There is a decision of this Court, Ahmad v. The State (PLD 1963 SC 737) which, though not exactly on this point, lends some support to our view. In the case under report the two appellants who had been convicted of dacoity, were armed with guns. On a reference under section 438, Cr. P. C. The High Court enhanced their sentences from four years' rigorous imprisonment to seven years' rigorous imprisonment each. The Supreme Court held that the sentences of the appellants were not open to any legal exception and it accordingly dismissed the appeal. S. A. Rahman, J. Who delivered the judgment of the Court observed as follows :- "It would, therefore, seem that even in the case of an attempted robbery or dacoity, the mere carrying of a deadly weapon by an offender would entail the consequence that in case of a conviction, he would receive a minimum sentence of seven years' rigorous imprisonment. This section provides the key to the correct interpretation of section 397, P. P. C. And we are disposed to agree with the view expressed in the case cited that the word `uses' occurring in section 397, P. P. C.
13. Should be construed broadly as including the case of carrying of a deadly weapon during the dacoity or robbery."
14. The High Court relied on this Supreme Court case to hold that in the facts and circumstances of the case the sentence of three years' rigorous imprisonment was patently illegal, and it accordingly enhanced the sentence.
15. Mr. M. Anwar was unable to cite, any decision to the contrary.
16. It is thus evident that section 397 of the Pakistan Penal Code is not all offence by itself and the mere fact that the trial Court on an erroneous interpretation of the section held that its provisions were not attracted, it did not amount to an order of acquittal within the meaning of section 417, Cr. P. C.
17. This contention too, therefore, fails.
18. The appeal is, accordingly, dismissed.