ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No. S- 48 of 2023

Date of hearing

Order with signature of Judge

For hearing of main case.

12.03.2025.

Mr. Azhar Hussain Abbasi, Advocate for the Appellants a/w appellants.

Mr. Aftab Ahmed Soomro, Advocate for the complainant.

Mr. Nazir Ahmed Bhangwar, DPG for the State.

JUDGMENT

Khalid Hussain Shahani-J:-  The appellants Khalid @ Khalid Mehmood, Waleed @ Waheed Ali, and Bilawal, were convicted by the learned Additional Sessions Judge-III, Shikarpur, vide judgment dated 17.05.2023, in Sessions Case No.14/2021 (The State v. Khalid Chukro & others), emanating from Crime No.146/2020. They were sentenced to undergo rigorous imprisonment for a term of 05 years, along with a fine of Rs.20,000/- each, for the offence punishable u/s 395 read with Section 149 PPC. In case of default in payment of the fine, they were directed to undergo simple imprisonment for an additional period of one month. Furthermore, the appellants were also convicted under Section 148 read with Section 149 PPC and sentenced to rigorous imprisonment for a period of three years, along with a fine of Rs.10,000/- each. In case of default in payment of the fine, they were directed to undergo simple imprisonment for an additional period of one month. Additionally, the appellants Waheed and Bilawal were convicted for offence u/s 337-F(i) PPC and sentenced to pay a fine of Rs.10,000/- as Daman to the injured witness, Muhammad Saleh. In the event of non-payment, both appellants were ordered to undergo simple imprisonment until the payment of Daman, in accordance with Section 337-Y(2) PPC. The appellants were, however, extended the benefit of Section 382-B Cr.P.C.

02. Before delving into the merits of the case, learned counsel for the appellants directed the Court’s attention to the formal charge framed by the learned trial court, which, in addition to other offences, included charges under Sections 148 and 149 PPC. However, as Section 395 PPC inherently encompasses these offences, the appellants were convicted and sentenced in a manner inconsistent with the fundamental principles of the criminal justice system. Consequently, the learned counsel for the appellants sought the remand of the case for a de novo trial.

03. Learned counsel for the complainant and the learned Deputy Prosecutor General, upon perusal of the record, concurred with the arguments presented by the learned counsel for the appellants. They acknowledged that the charge framed by the learned trial court was defective and, consequently, raised no objection to the remand of the case for further proceedings.

04. The arguments put forth by the learned counsel for the appellants hold merit, as the appellants were convicted and sentenced under Sections 148 and 149 PPC, in addition to other offences, despite the fact that the offence of dacoity, as defined u/s 391 PPC, inherently encompasses the assembly of five or more persons. For ease of reference, the provision is reproduced below:

S. 391. Dacoity. When five or more persons conjointly commit or attempt to commit a robbery, or where the total number of persons conjointly committing or attempting to commit a robbery, including those present and aiding such commission or attempt, amounts to five or more, every person so committing, attempting, or aiding is said to commit 'dacoity'.

05. In view of the arguments advanced by the learned counsel for the appellants and the lack of objection from the learned counsel for the complainant, it is evident that the impugned judgment is vitiated by material illegality and is, therefore, unsustainable in the eyes of law. Consequently, the case is remanded to the learned trial court for a de novo trial, commencing with the fresh framing of charges. The appeal is accordingly disposed of.

                                                                                                            J U D G E

S.Ashfaq/PS