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Criminal Appeal No. 1 of 1959, decided on 8th January 1959.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 18th May 1956, in Criminal Appeal No. 165 of 1956/Criminal Appeal No. 53 of 1956).

S. 394‑Robbery of article from victim isolated act of one accused‑Securing conviction of other co‑accused of complicity in crime‑Prosecution to establish association of such other accused by clear act, conduct or other circumstances.

M. Z. Kitchlew, Advocate Supreme Court for Appellant.

Jamil Hussain Rizvi, Advocate‑General West Pakistan (Ataullah Sajjad, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State.

Date of hearing : 8th January 1959.

The appellant Safdar Hussain stands convicted under sections 324 and 394, P. P. C., the sentences being rigorous imprisonment for two years and seven years respectively. His appeal to the High Court was dismissed as long ago as the 18th May 1956. Two other persons who had been convicted in the same case along with Safdar Hussain, namely, Shakil Hussain and Allah Baksh Anwar applied and were granted special leave to appeal to this Court and their appeals were partially allowed on the 15th November 1957. Their convictions under section 394, P. P. C. were set aside, but the convictions under section 3 24, P. P. C. were maintained and the sentences were reduced to the period of imprisonment already undergone. It was noted in that judgment that Safdar Hussain had not sought special leave to appeal, but from a petition made by him to this Court from the jail, it appears that he was under the impression that an appeal would be moved on his behalf as well. The plea which he raised in his petition (which was erroneously described as a review petition) was that his case should be treated on the same basis as those against Shakil Hussain and Allah Baksh Anwar.

This petition was instituted long after the expiry of the prescribed period of limitation for the filing of such petitions, but the delay was condoned and leave to appeal was granted to consider whether the evidence in the case was sufficient to sustain the conviction of Safdar Hussain under section 394, P. P. C. At the hearing, the learned Advocate‑General of West Pakistan conceded that on the facts found in the judgment of this Court in the earlier appeals, the case of Safdar Hussain could not be distinguished from those against Shakil Hussain and Allah Baksh Anwar. In that judgment, it was held that the robbery of articles from the person of the victim Ashiq Hussain was an isolated act of another accused person in the case named Akram. Akram was convicted and sentenced at the same trial, but he did not appeal to the High Court. Upon the finding that the principal responsibility for the act of robbery was that of Akram, it was held by this Court that it was "necessary for the prosecu tion, in order to secure conviction of any of the other accused persons of complicity in this crime to establish the association of such other accused persons in the crime by clear act or conduct or other circumstances". The evidence in the case does, not provide any ground upon which it is possible to find that Safdar Hussain was associated with Akram's act of robbery. It goes only to show that Safdar Hussain joined in assaulting Ashiq Hussin, that he tied Ashiq Hussain's hands with a string and that he along with Shakil Hussain thereafter assaulted Ashiq Hussain with knives. The assault can hardly be described as a violent one, since the results were confined to a few minute scratches and cuts. Safdar Hussain was caught on the spot with the knife in his possession by a police officer Asghar Ali by name, who lived in adjoining premises and was attracted to the spot by the cries of Ashiq Hussain. On this evidence, it is clear that the conviction of Safdar Hussain under section 324, P. P. C. was well founded.

Accordingly, we allow the appeal of Safdar Hussain to this extent that his conviction and sentence under section 394, P. P. C. are set aside, but his conviction under section 324, P. P. C. is maintained, and in view of the very slight injuries caused, the sentence under section 324, P. P. C. is reduced to the period of imprisonment which he has already undergone, in case it has not already been served out.

Appeal allowed.

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