' This appeal is directed against the judgment, dated 6-8-1998 passed by learned IVth Additional Sessions Judge Hyderabad, whereby the appellants have been convicted under sections 392, 452, 412, P.P.C., and sentenced to the punishment as under:---
(i) Under section 392, P.P.C. =to undergo R.I. for seven years each and a fine of Rs.1,000 each or in default thereof to further undergo R.I. for six months each.
(ii) Under section 452, P.P.C. =to undergo R.I. for seven years R.I. each and a fine of Rs.1,000 each or in default thereof to further undergo R.I. for six months each.
(iii) Under section 412, P.P.C. =to undergo R.I. for ten years and a fine of Rs.1,000 each or in default thereof to further undergo R.I. for six months each.
' All the substantive sentences were ordered to run concurrently.
2. Briefly stated, the prosecution case as gathered from the record is that on 15-8-1994 at 5-00 p.m.
Report was lodged by one Syed Adil Hussain son of Syed Sabir Hussain with Police Station Latifabad wherein, it was alleged that he was resident of house No,215, situated in Block "B" Unit No,10 Latifabad, Hyderabad. On the said date, at about 1330 hours while he alongwith his family members were present in his house, somebody knocked at the door of the house. It was opened.
Suddenly, four duly armed persons forced their entry in the house and on gun-point robbed away golden ornaments and cash amounting to Rs,10,000 from them. After completing the offence all the four culprits tried to flee but were chased by the complainant party. In the process stones were also pelted. One of the culprits who, later on disclosed his name as Muhammad Ali was apprehended on the spot, while rest of them were able to make good their escape. On the stated allegations a formal F.I.R. Bearing No,43 of 1994 was registered at Police Station "B" section Latifabad, Hyderabad under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 395, P.P.C., and investigation was initiated in pursuance thereof. On the completion of investigation, the accused persons were challaned to the Court for trial.
3. Charge was accordingly framed to which the accused/appellants pleaded not guilty and claimed trial.
4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the appellants produced eight witnesses, in all. P.W.1 Syed Adil Hussain is the complainant.
He, at the trial, reiterated, the version contained in the F.I.R. P.W.2 Muhammad Arshad is another witness of the occurrence. He, at the trial, corroborated the statement of P.W.1 in all material particulars. P.W.3 Mst. Sarwar Jehan is sister of the complainant. She too, corroborated the statement of P.Ws. 1 and 2 in pith and substance. P.W.4 S. Jawed Hussain is also an eye-witness of the incident. He too, corroborated the statements of the abovementioned P.Ws. P.W.5 Muhammad Asghar A.S.I. Is the marginal witness of the memo. Of arrest i,e,, Exh.24 of accused Muhammad Zahir and Ahsan Ali Shah. P.W .6 Sardar Khan A.S.I. Is a marginal witness of the memo. Of arrest and recovery i,e,, Exh.26 vide which, accused Atif Madani was arrested and from his possession a part of the robbed property was recovered. P.W.7 Raqeebullah S.H.O. Got registered the formal F.I.R. He is also a witness of the mashirnama of arrest of accused Muhammad Ali i,e,, Exh.28 as well as Exh.31 mashirnama of recovery of a pistol and a magazine. P.W.8 Mrs. Roomana Extra Joint Civil Judge and First Class Magistrate Hyderabad had supervised identification parade of the appellants.
5. On the conclusion of prosecution evidence the accused/appellants were examined under section 342, Cr.P.C. In their statements they denied the charge and pleaded innocence. They, however, declined to produce any evidence in their defence or to appear as their own witnesses in terms of section 340(2), Cr.P.C.
6. After hearing arguments of the learned counsel for the parties the learned Trial Court convicted the accused/appellants and sentenced them to the punishment as mentioned in the opening para. Thereof.
7. I have heard Mr. Muhammad Ashraf Kazi, Advocate, learned counsel for the appellants, Mr. Habib-ur-Rashid, Advocate, for the State and have also perused the entire record with their help.
8. Mr. Muhammad Ashraf Kazi, Advocate, the learned counsel for the appellants after having gone through the evidence made some submissions, but then decided not to challenge conviction of the appellants. Instead he prayed for reduction in the sentences of imprisonment on the ground that the appellants were the first offenders, young men and bread winners of their respective families which in their absence have been subjected to poverty, therefore, a lenient view may be taken in the matter of sentence. It is further his case that the conviction of the appellants simultaneously under sections 392 and 412, P.P.C., was illegal, as the same appellants could not have been convicted both for the offences of robbery and for retaining the stolen properly in their possession.
9. Mr. Habib-ur-Rehman, Advocate, learned counsel for the State has neither controverted the above contention raised by the learned counsel for the appellants nor has any objection in case moderate reduction in the sentence is made. He has rather candidly conceded that conviction of the appellants under section 412, Cr.P.C., was bad in law.
10. Notwithstanding the fact that Mr. Muhammad Ashraf Kazi, Advocate, learned counsel for the appellants has not challenged the conviction of the appellants, I have considered the merits of the instant case, in the light of the evidence on record. I am convinced that the learned lower Court has properly appreciated the evidence and has drawn correct conclusions, so far as their conviction under section 392 read with section 452, P.P.C., is concerned, however, I am of the view that the conviction recorded against the appellants under section 412, P.P.C., is not proper because legally, the same person cannot be both robber as well as receiver of the pillage. It would be pertinent to mention here that the offence of robbery cannot be committed unless something is taken away by an offender, within the purview of section 390, P.P.C., as otherwise it would be mere an attempt to commit the offence or something else. It would be like the same as if a person is found guilty under Article 3 of the Prohibition Order, 1979 for transporting the narcotics and he, while being punished therefor, is also convicted under Article 4 of the said Order for retaining possession of the contraband. Obviously a person cannot transport the narcotics or anything else without keeping the same in his possession.
Likewise a person found guilty of the offence of theft within the meaning of section 379, P.P.C., cannot be simultaneously convicted under section 411, P.P.C., for retaining the stolen property because a thief cannot commit the offence of theft without settling something, therefore, if the booty is recovered from his possession he cannot be charged and convicted separately for the offence that; he has retained possession of the stolen property. On the same analogy conviction under section 392 as well as 412, P.P.C., cannot simultaneously, stand. In this regard reference may usefully C be made to the cases of Muhammad Anwar and others v. The State reported as PLD 1966 (W.P.) Lahore 643 and Narendara Kumar v. State reported as AIR 1956 Allahabad 336.
11. The upshot of the above discussion, is that conviction recorded against the appellants by the Trial Court under section 412, P.P.C., cannot be sustained. The same as such is set aside. However, keeping in view the submissions made by the learned counsel for the parties and facts of the case, I, while maintaining conviction of the appellants under sections 392 and 452, P.P.C., am inclined to reduce their sentence in a hope that the indulgence shown to them would bring out of them law- abiding and respectable citizens. Accordingly sentences of the imprisonment of the appellants under section 392 as well as 452, P.P.C., are reduced from seven years' R.I. To that of five years R.I.
Each with no change in the sentences of fine or the quantum of terms of imprisonment in default thereof. All the sentences of imprisonment shall run concurrently.
The learned Trial Court has not afforded benefit of section 382-B, Cr.P.C., to the appellants. In my view, in the absence of special circumstances, disentitling the accused/appellants to have their sentences of imprisonment reduced by the period spent in jail, during the trial, it was obligatory for the Trial Court to afford benefit of section 382-B, Cr.P.C., to the appellants. Benefit of section 382-B, Cr.P.C., as such is extended to all the appellants.