IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 350 of 2021

Criminal Jail Appeal No. 124 of 2022

Appellants: Muhammad Ismail, Gul Hassan and Safdar Ali through M/s Nusrat Ali Shah Bloach and Syed Gulzar Hussain advocates

The State: Through Mr. Abrar Ali Khichi, Additional Prosecutor General Sindh

Date of hearing: 19.12.2022

Date of judgment: 19.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants committed robbery of artificial jewelry and cash worth Rs.11,000/- from house of complainant Saqib Ellahi, they were apprehended at the spot by police party of P.S Defence and from them were secured the robbed articles and incriminating pistols, for that they were booked and reported upon. On conclusion of trial, they were convicted under Section 397 r/w 34 PPC and sentenced to undergo rigorous imprisonment for 07 years each with benefit of section 382(b) Cr.P.C by learned X-Additional Sessions Judge, Karachi South vide judgment dated 21.04.2021, which is impugned by the appellants before this Court by preferring two separate appeals.

2. At the very outset, it is stated by the learned counsel for the appellants that no weapon was used by the appellants in commission of the incident, therefore, the offence at the most would fall u/s 392 PPC, as such, under instructions, they would not press disposal of instant appeals on merits, provided the sentence awarded to the appellants is reduced to one which they have already undergone by modifying the penal section, which is not opposed by learned Addl. P.G for the State.

3. Heard arguments and perused the record.

4. Admittedly, no weapon was used by the appellants in commission of incident, as such, the offence, if any, would fall under Section 392 PPC, therefore, the punishment to the appellants u/s 397 PPC is misplaced, thus, it is modified with one u/s 392 PPC, consequently, the appellants are convicted accordingly and sentenced to undergo rigorous imprisonment for 03 years with fine of Rs.10,000/- each and in default whereof to undergo simple imprisonment for Twenty 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. The instant appeals are disposed of subject to above modification.

JUDGE