IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 127 of 2022

Appellant: Muhammad Yousuf through Mr. Habib-ur-Rehman Jiskani advocate

The State: Through Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh

Date of hearing: 07.12.2022

Date of judgment: 07.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that appellant with rest of the culprits robbed complainant Burhan-ul-Haq and his witnesses of their cell phones and other belongings when they were about to make their escape good from the place of incident, the appellant was apprehended at the spot and from him was recovered the incriminating pistol and certain robbed articles, for that he was booked and reported upon. On conclusion of trial, he was convicted under Section 397 PPC and sentenced to undergo rigorous imprisonment for 07 years with benefit of section 382(b) Cr.P.C by learned XII-Additional Sessions Judge, Karachi East vide judgment dated 13.11.2021, which is impugned by the appellant before this Court by preferring the instant jail appeal.

2. At the very outset, it is stated by the learned counsel for the appellant that no weapon was used by the appellant in commission of the incident, therefore, the offence at the most would fall under Section 392 PPC, therefore, he would not press disposal of instant appeal on merits, provided the sentence awarded to the appellant is reduced to one which he has already undergone by modifying the penal section, which is not opposed by learned DPG for the State.

3. Heard arguments and perused the record.

4. Admittedly, no weapon was used by the appellant in commission of incident, as such, the offence, if any, would fall under Section 392 PPC, therefore, the punishment to the appellant u/s 397 PPC is misplaced, thus, it is modified to one u/s 392 PPC, consequently, the appellant is convicted and sentenced to undergo rigorous imprisonment for 03 years with fine of Rs.10,000/- and in default whereof to undergo simple imprisonment for 30 days with benefit of section 382(b) Cr.P.C.

5. In case of Salah-Ud-Din vs. The State (1990 P.Cr.L.J 1221), it has been held by Lahore High Court that;

“In the present case the appellant had not used their weapons. What they had done was the pointation of weapons at the complainant and under the fear thereof, he was made to surrender his Rickshaw and Rs.10/-, he was carrying. The offence committed, thus amounted to simple robbery punishable under Section 392 of the Code.”

6. Subject to above modification, the instant jail appeal fails and is disposed of accordingly.

JUDGE