This jail criminal appeal has arisen out of judgment dated 31-10-1997, passed by the learned Additional Sessions Judge, Turbat, in Hudood Case No. 11 of 1997, whereby appellant Barkat and co- convict Manzoor alias Raja were convicted under Article 3 of the Prohibition (Enforcement of Hadd)
Order, 1979 (hereinafter referred to as the said Order) and sentenced to four years' rigorous imprisonment, 15 stripes each and a fine of Rs.5,000 each or in default thereof to undergo three months' S. I. each. They were also convicted under Article 4 of the said Order and sentenced to two years' R.I. 10 stripes each and a fine of Rs.2,000 each or in default thereof to undergo two months' S.I. each. Both the sentences were ordered to run concurrently.
2. It would be pertinent to mention here that previously three criminal appeals i.e. Jail Criminal Appeal No. 117/Q of 1997, Criminal Appeal No. 126/Q of 1997 and Criminal Appeal No.125/Q of 1997 were filed before this Court by the aforementioned convicts. Jail Criminal Appeal No. 117/Q of 1997 was filed by the present appellant and co-convict Manzoor alias Raja against their conviction in Hudood Case No.10 of 1997 whereas Criminal Appeal No. 125/Q of 1997 was filed by said Manzoor Ahmad alias Raja challenging his conviction in Hudood Case No. 12 and third appeal i.e. Criminal Appeal No. 126/Q of 1997 was also filed by said Manzoor Ahmad against his conviction in Hudood Case No. 12 of 1997 though it was redundant because he had already challenged his conviction in that case vide Jail Criminal Appeal No. 117/Q of 1997. In consequence of the above appeals, Manzoor alias Raja was acquitted of the charge in both the cases. However, conviction recorded against Barkat in Hudood Case No. 12 of 1997 was maintained. His sentence of imprisonment was, however, reduced from three years' rigorous imprisonment to that of two years' rigorous imprisonment. Likewise, the sentence of fine was also reduced from Rs.5,000 to that of Rs.2,000 or in default thereof to further undergo S.I. for one month. Since it was found that both the F.I.Rs. in the above two cases i.e. in Hudood Case No. 11 as well as 12 of 1997 pertain to one and the same incident and the appellant could not have been punished twice for the same offence, therefore, sentences recorded against both the appellants in Hudood Case No. l l of 1997 were set aside.
3. It appears that since no appeal was filed earlier by the present appellant in Hudood Case No. 11 of 1997, therefore, he was not afforded the benefit of acquittal in Hudood Case No. II of 1997 though this Court vide judgment dated 4-8-1998 had ordered that conviction and sentences recorded against the "appellants" in that case were not maintainable. Hence this appeal.
4. In order to properly appreciate the proposition it would be advantageous to have a resume of the facts. As per prosecution version a raid in consequence of spy information, was conducted at the house of appellant on 24-2-1997. Consequently, he was apprehended and 20 grams of heroin powder was recovered from his possession. The house was also searched and another 560 grams of contraband material i.e. "Charas" was also recovered. It would be pertinent to mention here that as a result of the above recovery originally F.I.R. bearing No.8 of 1997 was registered at Police Station, Pasni under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 at 3-35 p. m.
On the same day another F. I. R. No. 9 of 1997 was also registered at the said Police--Station under section 8/14 of the Dangerous Drugs Act, 1930 against both the appellant as well as co-accused namely, Manzoor alias Raja. Record further reveals that in pursuance of the above F.I.Rs., two separate challans i.e. bearing No.9/97 and 10/97 were presented in the trial Court, as a result whereof accused persons were charged in both the cases though under same Articles i.e. 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. Record further reveals that in Hudood Case No. 11 of 1997 appellant was charged for keeping in his possession 560 grams of Charas whereas, co- accused was charged for supplying the contraband material to him. In Hudood Case No. 12 of 1997 both were charged for keeping in possession and supplying 20 grams for "heroin" as well as 560 grams of Charas. Though the incident being one and the same, there should have been one F. I. R. and one challan notwithstanding the fact that the offence allegedly committed by the appellants were punishable under two different enactments i.e. the Prohibition (Enforcement for Hadd) Order, 1979 as well as Dangerous Drugs Act, 1930.
5. In both the cases charge was accordingly framed to which the accused appellants pleaded not guilty and claimed trial.
6. At the trial the prosecution in order to prove the charge and substantiate the allegations levelled against the accused/appellants, produced eight witnesses, in all. Whereafter the accused persons were examined under section 342, Cr.P.C. In their statements they denied the charge and pleaded innocence. They, however, declined to lead any evidence in their defence or to appear as their own witnesses in terms of section 340(2), Cr.P.C.
7. After hearing the arguments of the learned counsel for the parties the learned trial Court convicted the accused persons and sentenced them to the punishments as under:-- Barkat appellant and co-convict Manzoor alias Raja in Hudood Case NO. I I of 1997).Under Article 3 of the said Order four years R.I. 15 stripes each and a fine of Rs.5,000 or in default three months' S.I. each.
Under Article 4 of the said Order two years R.I. ten stripes each and a fine of Rs.2,000 or in default two months' S.I. each.
Barkat appellant and co-convict Manzoor alias Raja in Hudood Case No. 12 of 1997.Under Article 4 of the said Order, five years R.I. each, 20 stripes each and a fine of Rs.10,000 or in default three months S.I. each.
Under Article 4 of the said Order three years R.I. 15 stripes each and a tine of Rs.5,000 each or in default two months' S.I. each.
Since the above punishments were inflicted on the appellants in both the above-referred cases, therefore, sentences under Article 3 as well as 4, in both these cases, were made concurrent.
Against their conviction both the appellants filed appeals jointly as well as separately, details whereof have already been given in the second para. hereof, which borne fruit to the extent that conviction recorded against both the accused persons in Hudood Case No.l l of 1997 was set aside, whereas, sentence recorded against the present appellant in Hudood Case No. 12 of 1997 was reduced and co-accused Manzoor alias Raja was acquitted of the charge for want of proof.
8. Miss Uzma Akhtar Chughtai, Advocate, learned counsel for the appellant has contended that though this Court vide judgment dated 4-8-1998 has, already set aside the conviction and sentences recorded by the trial Court in Hudood Case No.II of 1997 being violative of Article 13 of the Constitution yet, it appears that the present appellant is not being afforded the benefit of the jud, ment. Perhaps due to the misconception that he had not filed any appeal earlier. She maintained that since this Court has already set aside the conviction and sentences recorded against both the accused persons in Hudood Case No.11 of 1997, therefore, the appellant could not have been kept in Jail on that count as in cases of acquittal, non-appealing accused persons are also entitled to the benefits flowing from the judgment. In order to supplement her contention she has relied upon the following reported judgments :-- (1)Mohabbat Ali and another v. The State 1995 SCMR 662 in which case the Hon'ble Supreme Court of Pakistan while setting aside conviction recorded against the appellant was also pleased to set aside conviction of non-appealing convict and he was acquitted of the charge.
(2)Muhammad Aslam and 5 others v. The State 1997 SCMR 194, wherein while setting aside conviction and acquitting all the appellants, conviction of one accused, absconding during pendency of appeal and remaining so throughout, was also set aside and his acquittal was recorded in absentia.
9. Mr.Qari Abdur Rashid, Advocate, learned counsel for the State candidly conceded to the above proposition and submitted that though non-appealing convicts are also entitled to the benefit of acquittal as ,per law laid down by the superior Courts yet, since no appeal was preferred by the appellant and no specific direction for his release in Hudood Case No.11 of 1997 was made by this Court vide judgment dated 4-8-1998, therefore, he could not have been released. Learned counsel appearing for the State in addition to the case-law relied upon by the learned counsel for the appellant, also referred to the following judgments:-- (1)The State v. Ghandal PLD 1960 (W.P.) Peshawar 137 wherein it was held that the High Court while exercising powers under section 439, Criminal Procedure Code, can suo Moto reduce the sentences recorded against non-appealing convicts.
(2)Raza Muhammad and another v. The State PLD 1965 (W.P.) Karachi 637 wherein a Single Bench of the High Court was pleased to acquit the non---appealing convicts in exercise of suo motu powers to revision under section 439 of the Criminal Procedure Code.
10. I have given my anxious consideration to the respective contentions of the learned counsel for the parties. There can be no cavil with the proposition that benefit of an acquittal can be afforded to the non--appealing convicts as well as in this regard, in addition to the cases referred to and relied upon by the learned counsel for the parties, reference may also be made to the cases (1)
Talib Hussain and another v. The State PLD 1958 (W.P.) Karachi 383 wherein a Division Bench of the High Court was pleased to hold that in case appeal from conviction was tiled by one accused only, the other accused was also entitled to the benefit of acquittal ordered in appeal (2) Aurangzeb alias Ranga v. The State 1991 PCr. LJ 1299 wherein it was observed that reasons given by High Court for acceptance of appeal of co-convicts equally apply to the case of appellant and rule of consistency requires that appellant should be treated at par with his co-convicts. However, I am not convinced by this argument of the learned counsel for the appellant that benefit of an acquittal shall automatically extend to the non-appealing convicts, irrespective of the direction made by the Court. It may be observed here that notwithstanding the legality or illegality of the proceedings, conviction recorded against each of the accused persons by a Court. of competent jurisdiction, unless set aside, shall hold the field and an accused cannot be released unless a specific direction in that regard is made. This view receives support from the case of Mst. Ram Piyari v. Emperor reported as 1931 Criminal Law Journal 731, AIR 1931 Lahore 199.
11. Since, while deciding Criminal Appeal No. 125/Q of 1997, I have already set aside conviction and sentences recorded against the accused persons in Hudood Case No. l l of 1997, therefore, it is hereby ordered that appellant Barkat son of Lal Muhammad shall be released forthwith in that case.