IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Criminal Appeal No. S-64 of 2024

Appellant                               :        Shahid Hussain, son of Ali Sher

Domki

through Mr. Muhammad Afzal Jagirani, Advocate.

The State                               :        through Mr. Ali Anwar Kandhro,

Addl. P. G, Sindh.

Date of hearing                      :       12.09.2024

Date of Order                         :        12.09.2024

O R D E R

KHADIM HUSSAIN SOOMRO, J.-   By means of instant Crl. Appeal, the appellant has assailed the judgment dated 24.07.2024 passed by learned Additional Sessions Judge-II, Kandhkot, in Session Case No.66/2024, being outcome of FIR No.122/2024 under Sections 399, 402, 324, 353, PPC & 6/7 ATA registered at P.S. A-Section, Kandhkot, whereby present appellant along with four others was convicted and sentenced as under :

1. For offence punishable U/S 399 PPC R/W Section 149 PPC, they are sentenced to Life imprisonment (R.I) and to pay a fine of Rs.1,00000/- each Total (Rs.5,00,000/- In case of failure to pay fine convict at fault will undergo S.I for 02 years more.

2. For offences punishable U/S 402 PPC R/W Section 149 PPC, they are sentenced with R.I for 07 years as a fine of Rs.50000/- each Total (Rs.250000/-). In case of failure to pay the fine, the convict at fault will undergo S.I for 01 year more.

3. For offences punishable U/S 324 PPC R/W Section 149 PPC, they are sentenced with R.I for 10 years and to pay a fine of Rs.1,00,000/- each Total (Rs.5,00,000/-). In case of failure to pay fine, the convict at fault will undergo S.I. for 02 years more.

4. For offences punishable U/S 353 PPC R/W Section 149 PPC they are sentenced with R.I for 02 years and to pay fine of Rs.1,0000/- each Total (Rs.50,000/-). In case of failure to pay fine convict at fault will undergo S.I for 06 months more.

All the sentences were ordered to run concurrently with the benefit of Section 382-B, Cr.P.C.

2.      At the outset, the appellant's counsel argued that the trial court had erroneously convicted and sentenced the appellant under Section 399 of the Pakistan Penal Code. The counsel contended that the punishment for the aforesaid section is imprisonment for a term which may extend to ten years and shall also be liable to a fine, whereas the learned trial Court convicted and sentenced the appellant to Life imprisonment (R.I) and to pay a fine of Rs.1,00000/ is inconsistent with the legal provisions. Consequently, the counsel requested that the impugned judgment be overturned.

3.      Learned Addl, P. G, present in Court in some other matters, waived notice of instant appeal and submitted that the learned trial Court, while convicting and sentencing the appellant, has not gone through the punishment provided under Section 399, PPC. Therefore, he does not support the impugned judgment and prays that the matter may be remanded to the learned trial Court for rewriting of judgment.

4.      I have heard the arguments advanced by learned counsel for the appellant and learned Addl. P.G., Sindh appeared for the State and perused the material available on the record.

5.      A review of the impugned judgment reveals that the trial court convicted and sentenced the appellant under Section 399 of the Pakistan Penal Code to life imprisonment and a fine of Rs.100,000. For the sake of convenience, Section 399, PPC is reproduced as under :

399. Making preparation to commit dacoity. Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

6.      The law stipulates that under Section 399 of the Penal Code, the punishment for making preparations to commit dacoity may extend to imprisonment for a term of up to ten years, along with a fine. However, the learned trial court has convicted and sentenced the appellant to life imprisonment and imposed a fine of Rs. 100,000/-, contrary to the statutory provisions. The core principle is that courts must adhere to the maximum and minimum penalties established by statute and cannot exceed these limits. In this case, the learned trial court cannot award a sentence exceeding ten years of rigorous imprisonment as specified in Section 399 PPC, nor can it impose a fine beyond what is allowable under the law. This principle is consistent with judicial guidelines in various sections of Halsbury's Laws of England, particularly in volume No 22  dealing with "Criminal Law" and "Sentences and Orders". This volume deals with judicial discretion in sentencing, which aligns with the principle that courts cannot impose sentences beyond statutory maxima. Therefore, the Court cannot impose a punishment exceeding the maximum term prescribed by law.

7.      Under the aforementioned circumstances, the instant appeal is allowed. The conviction and sentence awarded to the extent of the present appellant through the impugned judgment dated 24.07.2024 by learned Additional Sessions Judge-II, Kandhkot, in Sessions Case No.66/2024, are set aside. The matter is remanded to the learned trial Court for rewriting of the judgment in view of the observations made hereinabove. The Session Judge Kandhkot is directed to withdraw the above case from the Court of learned Additional Session Judge-II and to keep it either on his own board or transfer to any other Additional Sessions Judge of the District for its disposal in accordance with the law. This exercise shall be carried out within a period of thirty days from the date of receipt of this order. Let a copy of the order be sent to the learned Sessions Judge concerned for compliance.

8.      Instant Criminal Appeal stands disposed of in the above terms.

Judge

Manzoor