Sami Ullah vs The State

Stereo. H C J D A 38.

Judgement Sheet

IN THE LAHORE HIGH COURT

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

Criminal Revision No. 124 of 2018 (Sami Ullah v. The State, etc.)

Criminal Miscellaneous No. 1015-M of 2015 (Sami Ullah v. The State, etc.)

JUDGEMENT

Date of hearing: 11.12.2025

Petitioner by: Mr. Ch. Zulfiqar Ali Sidhu, Advocate.

State by: Mr. Hassan Mehmood Tareen, Additional Prosecutor General.

Complainant by: Mr. Malik Tahir Iqbal, Advocate.

MUHAMMAD JAWAD ZAFAR, J.: Sami Ullah (“petitioner”) has filed both a criminal revision petition under Section 435 read with Section 439 of the Code of Criminal Procedure 1898 (“Code” or “Cr.P.C”), and a separate criminal miscellaneous petition, under Section 561-A of the Code.1

2.Succinctly, the complainant, dealing in business of goldsmithing, got registered the crime report bearing FIR No. 203 of 2014, dated 08.05.2014, for offences under Sections 395 and 412 of the Pakistan Penal Code 1860 (“PPC”), registered with Police Station Chowk Azam, Layyah (“crime report” or “FIR”) on allegations that unknown persons entered his shop with firearms on 17.04.2014 at 07:00 p.m., committed dacoity, and decamped thereafter while Details of the petitions are discussed in paragraph No. 5 of this judgement.

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brandishing their weapons. The matter was thoroughly investigated and the petitioner, along with his co-accused Yasir Ali, Asghar Ali, and Muhammad Kashif, was implicated as an accused.

3.On completion of investigation, challan was submitted, based on which the learned Judicial Magistrate, Section 30, Layyah (“trial court” or “Magistrate” or “trial Magistrate”) took cognizance and after completion of all codal formalities, fixed the case for production of prosecution evidence. To prove its case, prosecution produced ten (10) witnesses before closing its evidence. The Statements under Section 342 of the Code of the petitioner, and his co-accused, were recorded, wherein the petitioner denied all allegations levelled against him; however, he neither opted to appear as his own witness nor produced any defence evidence. On conclusion of trial, the learned Magistrate, vide judgement dated 05.09.2015, convicted the petitioner and sentenced him to rigorous imprisonment for four (4) years under Section 395 of the PPC along with fine of PKR 10,000/-, and in default whereof, to undergo simple imprisonment for one (1) month. He was further sentenced to rigorous imprisonment for two (2) years under Section 412 of PPC, with a fine of PKR 5,000/-, and in default whereof, to undergo simple imprisonment for fifteen (15) days. Both sentences were ordered to run concurrently, and the benefit of Section 382-B of the Code was also extended to him.

4.Judgement dated 05.09.2015, passed by the learned trial court, was assailed by the petitioner in the appellate jurisdiction of the learned Additional Sessions Judge, Court of Sessions, Layyah (“revisional court” or “appellate court” or “Court of Sessions”) in terms of Section 408 of the Code. On the other hand, the State filed a criminal revision for enhancement of sentence under Section 435 read with Section 439-A of the Code. Imperative to note that both the matters were not heard together, but adjudicated on and decided vide

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separate judgements. Criminal revision for enhancement was decided vide judgement dated 02.10.2015, and the sentence awarded to the petitioner under Section 395 of the PPC was enhanced from four (4) years of rigorous imprisonment to ten (10) years of rigorous imprisonment. The remaining sentences were kept intact. Whereas, the criminal appeal of the petitioner was disposed of vide judgement dated 29.03.2018 for the reason that since both judgement dated 05.09.2015 and judgement dated 02.10.2015 had already been assailed before this Court, thus, the learned Court of Sessions had become functus officio.

5.Through the criminal miscellaneous petition, bearing No. 1015- M of 2015, the petitioner has sought setting aside of judgement dated 02.10.2015 passed by the learned revisional court and judgement dated 05.09.2015 passed by the learned trial court. While through the criminal revision petition, bearing No. 124 of 2018, he has impugned judgement dated 29.03.2018 passed by the learned appellate court as well as judgment dated 05.09.2015 passed by learned trial Court. Both the petitions are being decided through this consolidated judgement.

6.Heard; Perused.

7.At the outset, while adverting to the criminal miscellaneous petition, the questions that fall for determination before this Court are:

a. Whether the Court of Sessions, while exercising its revisional jurisdiction, has the power to enhance the sentence awarded to a convict for a duration exceeding the maximum duration of sentence which can be awarded by the learned trial Magistrate?

b. Whether a person can simultaneously be convicted for offence of dacoity under Section 395 of the PPC and offence of dishonestly receiving property stolen in the commission of a dacoity in terms of Section 412 of the PPC?

(Sami Ullah v. The State, etc.)

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9.Before delving any further, it would be advantageous to state herein that according to the law laid down in “Mst. Samar Jan v. Ayub”,2 while citing the cases of “Muhammad Shafique v Abdul Hayee”;3 and, “Touqir Jehan v. Asif Latif Bajwa”,4 the Honourable Supreme Court of Pakistan articulated the following conditions justifying interference by this Court with any order or judgment passed by a court lower in the hierarchy, in exercise of its inherent powers under Section 561-A of the Code:

a. to give effect to any order under the Code;

b. to prevent abuse of process of any court; and, c. to secure the ends of justice.

10.According to the Code, a Court of Sessions established by the Provincial Government under Section 9 of the Code comprises of a Sessions Judge, Additional Sessions Judges, and Assistant Sessions Judges. In its original jurisdiction to try offences under Chapter XXII- A of the Code, a Sessions Judge or an Additional Sessions Judge can pass any sentence authorised by law.5 The caveat being that any sentence of death passed by any such Judge is always subject to confirmation by the High Court in exercise of its jurisdiction under Chapter XXVII of the Code. Whereas, while exercising its revisional jurisdiction in terms of Section 439-A of the Code, the power of this Court under Section 439(1) of the Code, to ‘enhance the sentence’ awarded to a convict, can be exercised by a Sessions Judge6 while an Additional Sessions Judge has and may exercise all the powers of a Sessions Judge under Chapter XXXII in respect of any case which may be transferred to him under any general or special order of the Sessions Judge.7 While allowing a Court of Sessions to enhance the

1995 SCMR 1679 (2-MB).

1987 SCMR 1371 (3-MB).

1994 SCMR 70 (2-MB).

See Subsection (2) of Section 31 of the Code.

See subsection (1) of Section 439A of the Code.

See subsection (2) of Section 439A of the Code.

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sentence of a convict, the legislature placed an embargo to the extent of such powers in subsection (3) of Section 439 of the Code, which provides that:

‘Where the sentence dealt with under this section has been passed by a Magistrate [* * *], the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed than might have been inflicted for such offence by [* * *] a Magistrate of the first class’. [emphasis supplied]

Simply put, the Court of Sessions, in exercise of its revisional jurisdiction, cannot inflict a greater punishment or impose a fine higher than the one that could have been imposed by the learned trial Magistrate. As per Section 32 of the Code, a Magistrate can only pass sentences depending on its status as either of the first class, second class, or third class. In certain cases, where the Court of a Magistrate of first class is specially empowered by the Provincial Government under Section 30 of the Code to try as a Magistrate all offences not punishable with death, the Magistrate so empowered under Section 30 may ‘pass any sentence authorized by law, except a sentence of death or of [* * *] imprisonment for a term exceeding seven years’.8 To this end, it is a cardinal principle of statutory interpretation that where there is a provision of law which is susceptible to two or more possible constructions, preference is to be given to the interpretation that favours the accused.9 In “Mst. Shahista Bibi v. Superintendent, Central Jail, Mach”,10 the Honourable Supreme Court of Pakistan reiterated this principle, as follows:

‘9. It is also hard and fast principle relating to interpretation of criminal law, which curtails the liberty of a person that it should be construed very strictly and even if two equal interpretations are See Section 34 of the Code.

See “Province of Punjab v. Muhammad Rafique” (PLD 2018 Supreme Court 178 (3-MB)); “Syeda Ayesha Subhani v. The State, etc.” (PLD 2023 Supreme Court 648 (2-MB)), wherein it was held that ‘8. It is a well-settled principle of interpretation in our jurisdiction that if two interpretations of a provision of a criminal statute are reasonably possible, the one that is favourable to the accused, not the prosecution, should be preferred’; and, “Bashir alias Bashir Ahmad v. The State” (1998

SCMR 1794 (3-MB)).

PLD 2018 Supreme Court 178 (3-MB).

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possible then the favourable to the accused and his liberty must be adopted and preferred upon the contrary one’.

When the aforementioned principle is taken into consideration and read in conjunction with the provisions of law discussed hereinabove, this Court has no other option than to hold that it is simply not permissible for a Magistrate, acting in exercise of powers under Section 30 of the Code, to impose a sentence of imprisonment for a duration exceeding seven (7) years.

11.In the present case, although the offences for which the sentence of the petitioner was enhanced is punishable with ‘[imprisonment for life], or with rigorous imprisonment for a term which [shall not be less than four years nor more than] ten years, and shall also be liable to fine’;11 however, at the same time, sight cannot be lost of the fact that the learned trial court, i.e., Court of Magistrate vested with powers under Section 30 of the Code, lacked the power and authority, as enunciated hereinabove, to pass a sentence of conviction exceeding seven (7) years. As a consequence thereof, the learned Court of Sessions, despite having the powers to enhance the sentence awarded to the petitioner, could not have enhanced it for a duration of ten (10) years, because it exceeds the maximum duration of sentence which the learned trial court could have passed, i.e., imprisonment for seven (7) years. In “Shaukat Ali v. The State”,12 the accused of that case was tried by a learned Magistrate and inter alia a fine of PKR. 5,000/- was imposed on him. The matter landed before this Court, where the sentence of fine was enhanced by the learned Judge-in-Chambers to PKR. 10,000/-. The Honourable Supreme Court of Pakistan, while dilating on the matter, concluded that:

‘Consequently, as provided under section 32, Cr. P. C. a Magistrate, First Class could only impose a fine not exceeding Rs. 5,000. As a result the learned Judge in Chamber could not inflict a See Section 395 of the PPC.

PLD 1982 Supreme Court 280 (2-MB).

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greater punishment or impose a higher fine than the one that could have been imposed by the learned trial Magistrate, the limit whereof is Rs. 5,000 only. In other words the enhancement of fine to Rs. 10,000 is not legal. We, therefore, reduce the amount of fine from Rs. 10,000 to Rs. 5,000’.13 [emphasis supplied] Reference may also be made to the case of “Bashir Ahmad v. The State”,14 wherein it was held by the Honourable Supreme Court of Pakistan that:

‘As such in the present case the Magistrate First Class who tried the petitioner had powers to award the sentence upto seven years' R.I. The High Court was consequently within its a power to enhance the sentence upto seven years' R.I. (although an offence under section 304-A, P.P. C. carries a sentence of imprisonment which may extend to ten years' R.I.)’. [emphasis supplied] Resultantly, the impugned judgement of the learned Court of Sessions, whereby the quantum of sentence imposed on the petitioner was enhanced, is not in accordance with the law, and for the purpose of securing the ends of justice, merits being set aside to such extent.

12.Insofar as the merits of this case are concerned, the material available on record was perused, which indicates that in spite of the fact that the crime report got lodged against unknown persons, sufficient description of the unknown accused dacoits was given in the crime report by complainant Illiyas Akhtar (PW-1). After their apprehension, the petitioner and co-accused were identified by complainant Illiyas Akhtar (PW-1), Muhammad Naeem Illyas (PW- 2), and Nadeem Akhtar (PW-3), and the learned Magistrate First Class, Layyah, who conducted the identification parade, appeared and deposed as PW-10. The witnesses of the ocular account remained consistent on each and every material point in as much as they made depositions exactly according to the circumstances that happened in this case, therefore, it can safely be concluded that the ocular account Also see “Mst. Samar Jan v. Ayub” (1995 SCMR 1679 (2-MB)); “Bashir Ahmad v. The State” (1988 SCMR 472 (2-MB)); and, “Hassan v. The State” (PLD 2017 Lahore 106).

1988 SCMR 472 (2-MB).

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furnished by the prosecution is reliable, straightforward and confidence inspiring.15 The learned Magistrate, who conducted the identification parade of the co-accused of the petitioner was also subjected to rigorous cross-examination, remained consistent and unwavering in his testimony on all material points and the fact remains that the stance of the prosecution since day one has been that the left arm of one of the unknown accused who committed dacoity was missing. It is an admitted position that the left arm of the petitioner is missing and he was indeed identified. It would not be out of place to observe herein that the process of identification has to be essentially carried out with regard to the exigencies of each case in a fair and non-collusive manner and such exercise is not an immutable ritual, inconsequential non-performance whereof may cause failure of prosecution case, which otherwise is structured upon clean and probable evidence.16 Similarly, partial recovery was also effected by the investigating officer (PW-9) from the accused to corroborate oral testimonies and connect him with the commission of the offences. The circumstances, as expounded above, have established that the prosecution has proved its case against the petitioner for offence under Section 395 of the PPC beyond any shadow of a doubt.

13.Regarding the conviction of the petitioner for the offence under Section 412 of the PPC, suffice to observe that a person cannot be charged and convicted with both committing dacoity under Section 395 of the PPC and dishonestly receiving property stolen in the commission of a dacoity under Section 412 of the PPC. Reason being that both offences are distinct in nature and a person can either be the recipient of the stolen property from another person, or be the person who stole it, but one cannot simultaneously do both. In “Muhammad Shahid v. The State”, the ingredients of offence under Section 412 of See “Ali Taj v. The State” (2023 SCMR 900 (3-MB)).

See “Tasar Mehmood v. The State” (2020 SCMR 1013 (2-MB)).

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the PPC were laid down, as follows:

a. dishonestly receiving or retaining property/articles with knowledge of same being consequence of commission of dacoity;

b. dishonestly receives from person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits:

c. property which he knows or has reason to believe to have been stolen.

It is no one’s case before this Court that the petitioner, while being conscious of the fact that the articles/property were a consequence of dacoity, dishonestly received from another the property/article. The allegation against the petitioner is that he himself partook in committing dacoity. As a consequence thereof, no question of receiving articles/property arises, and as such, the charge levelled against him under Section 412 of the PPC fails due to its ingredients not being made out.17 The next question for determination pertains to the quantum of sentence.

14.Evidently, the sentence of the petitioner was not enhanced due to a defect in the appraisal of evidence by the learned trial court; on the contrary, the same was done based on the maximum duration of imprisonment prescribed by the provision. Which, as enunciated hereinabove, was done on an erroneous presumption of law and exceeded the maximum duration of imprisonment that the learned Magistrate could award to a convict, and no legal nor cogent reason(s) were provided by the learned revisional court to justify the enhancement of sentence. Additionally, conflicting accounts were given by the complainant Illiyas Akhtar (PW-1), Muhammad Naeem Illyas (PW-2), and Nadeem Akhtar (PW-3) regarding the number and type of weapons of offence. The petitioner, who stands acquitted from one of the two charges levelled against him, is also a differently abled See “Muhammad Shahid v. The State” (2020 PCr.LJ Note 24 Sindh).

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person due to not having a left arm. These reasons can be termed as mitigating and extenuating circumstances as per the law laid down by the larger bench of the Honourable Supreme Court of Pakistan in “Dilawar Hussain v. The State”,18 wherein it was held that:

‘It has neither been the mandate of law nor the dictates of this court as to what quantum of mitigation is required for awarding imprisonment for life rather even an iota towards the mitigation is sufficient to justify the lesser sentence. According to our estimation, even a single stance providing mitigation or extenuating circumstance would be sufficient to award lesser punishment as an abundant caution’.

It is also a matter of record that a report from the Office of the Superintendent, Central Jail, Multan is available on record. As per the said report, the petitioner has already spent four (4) years, nine (9) months, and seven (7) days behind bars, whereas he was initially sentenced to undergo imprisonment for four (4) years. It further discloses that due to good conduct during the course of his incarceration, the petitioner earned remissions as well. Considering the same, it is reasonable to conclude that the petitioner has learnt a substantial lesson concerning the offence committed, therefore, it may be reasonable to observe that the petitioner is willing to mend his ways, due to which, there is no likelihood of repetition of offence. When these factors, i.e., the mitigating and extenuating circumstances, and that a substantial portion of his sentence has already been served by him, are read in conjunction with the fact that the prosecution had succeeded in establishing its case against the petitioner, the only logical and inescapable conclusion is that the conviction awarded by the learned trial Court calls for no interference and is, accordingly, maintained.

15.In light of the deliberations made hereinabove, it cannot be said that the learned revisional Court acted in accordance with law.

2013 SCMR 1582 (5-MB).

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Consequently, in order to secure the ends of justice, Criminal Miscellaneous Petition No.1015-M of 2015 is accepted, and the impugned judgment dated 02.10.2015 is set aside to the extent of enhancement of the petitioner’s sentence from four (04) years to ten (10) years under Section 395, P.P.C. Furthermore, Criminal Revision No.124 of 2018 is partly accepted; the conviction of the petitioner under Section 412, P.P.C., recorded vide impugned judgment dated 05.09.2015, is hereby set aside, and the petitioner is acquitted of the said charge. However, the conviction and sentence awarded to the petitioner under Section 395, P.P.C., vide the aforesaid judgment dated 05.09.2015, are maintained and upheld as awarded by the learned trial Court. The benefit of Section 382-B, Cr.P.C. is also extended to the petitioner. The petitioner was enlarged on bail by suspending his sentence vide order dated 01.06.2018 in Crl. Misc. No. 2 of 2018 in Crl. Revision No. 124 of 2018 titled “Sami Ullah v. The State, etc.”; his surety stands discharged.

16.Decided in the above terms.

(MUHAMMAD JAWAD ZAFAR)

JUDGE

Approved for Reporting

JUDGE

Ejaz*