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Criminal Appeal No. 269 of 1948, decided on 22nd November, 1949.
S. 395‑Charge bad in law if, participants are less than five.
As an offence under section 395 requires a minimum of five participants therein, obviously a charge which merely recites that three persons took part in the occurrence and makes no mention of any other persons, cannot, in law, be a valid charge under section 395 of the Code.
A. K. Fazlul Haq and A. M. Sayem for Appellants.
S. Afzal, Deputy Legal Remembrancer, for Crown.
This is an appeal by one Akkel Ali Molla who was convicted under section 395 of the Pakistan Penal Code and sentenced to rigorous imprisonment for five years by the learned 'Sessions Judge of Bakarganj an the 21st October, 1948.
The appeal must be allowed. It appears from the record of the trial in the Sessions Court that the charge as framed by the Magistrate and the charge to which the appellant was called upon to plead in the Court of Sessions, merely named three persons, Kadam Ali, Mansur Ali Molla and the appellant Akkel Ali Molla himself and‑charged then of having committed a dacoity in the boat of Jonab Ali, the informant, on the 13th August, 1947. As an offence under section 395 requires a minimum ‑of five partici pants therein, obviously a charge which merely recites that three persons took part in the occurrence and makes no mention of any other persons, cannot, in law, be a valid charge under section 39,5 of the Code.
In the circumstances, we allow the appeal, set aside the conviction and sentence of the Appellant and considering the circumstances of the case, we do not direct his re‑trial. The appellant will now be released from jail, if he is not required in any other connection.
K.M.A. Appeal allowed.
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