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Criminal Miscellaneous No. 375/Q of 1986/BWP, decided on 9th April 1986.

-‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), S. 326/457‑‑Probation of Offenders Ordinance (XLV of 1960) S.5---Release of convict on probation‑‑Accused convicted for offence punishable with imprisonment for life, held, was not entitled to be released on probation under Probation Offenders Ordinance, 1960‑‑Order of Additional Sessions Judge, setting aside probation order was not open to exception in circumstances.

Salehon's case P L D 1969 S C 267 ref.

‑‑‑S. 561‑A‑‑Probation of Offenders Ordinance (XLV of 1960), S.5‑ Reiease on probation‑‑View that convicting Court could not order release on probation, held was not correct.

State v. Fazal‑i‑Haq P L D 1967 Pesh. 105 and State v. Mazur P L D 1969 Pesh. 226 ref.

Muhammad Ozair Chughtai for Petitioner

Farooq Bedar Asstt. A.‑G. for the State

Date of hearing 9th April, 1986.

Through filing this petition under section 561‑A, Cr.P.C., Rashid Ahmad alias Badsha, convict /petitioner, has prayed that the order of Additional Sessions Judge, Bahawalpur, committing him to jail to serve the sentence of imprisonment awarded by the trial Court be set aside and the order of learned Magistrate releasing him on executing a bond for good behaviour under section 5 of the Probation of Offenders Ordinance XLV of 1960 be restored.

2. Briefly the facts are that the petitioner was tried for committing offences under section 457/326, P.P.C. by Magistrate 1st Class Bahawalpur, who, vide judgment dated 24‑3‑1985 finding him guilty on both the counts sentenced him to one year's R.I. each and in the concluding para of the judgment observed that since the probation officer had recommended that the petitioner had no previous conviction and was young poor men with changes of reformation through probation, therefore the petitioner be placed on probation for one year as provides under section 5 of the Probation of Offenders Ordinance, 1960 (hereinafter called, the Ordinance) provided he enters into a bond and furnishes a surety fur 5,000 for keeping good behaviour during the period of one year. Feeling aggrieved of the probation, order, the complainant Muhammad Javid filed a revision in the Court of Addition) Sessions Judge I, Bahawalpur, who, having accepted the revision, set aside the probation order as being illegal on two‑fold ground firstly, that the learned trial Court could not place the petitioner on probation under the Ordinance because he has been convicted under section 326, P.P.C. which is punishable with transportation for life and secondly; that the learned trial Magistrate could not under the Ordinance release the petitioner on probation simultaneously sentencing him to imprisonment. In this regard, he referred to the observations made in, State v. Fazal‑il‑Haq P L D 1967 Pesh. 105. Feeling aggrieved the convict/petitioner has invoked the extraordinary jurisdiction of this Court.

3. I have heard learned counsel for the petitioner and Mr. Farooq Bedar, learned Assistant Advocate‑General for the State.

4. The view of learned Additional Sessions Judge that a Court while sentencing the petitioner to imprisonment could not, simultaneously release him on probation, is based on P.L.D 1967 Pesh. 105 (supra) which I would respectfully say, is not correct as the said authority has since been overruled by Division Bench of the same High Court in State v. Manzur P L D 1969 Pesh. 226.

5. As far the other ground that since the petitioner was convicted under section 326, P.P.C., which is punishable with imprisonment for life, therefore, he was not eligible to get the benefit of section 5 of the Ordinance, it is submitted that only such offences are excluded from the of the Ordinance which are punishable with "death or transportation for life (now imprisonment for life)" and not those offences where one of the aforesaid two punishments is provided. He means to say that word "or" used in the phrase "offence punishable with death or transportation for life" should be read as conjunctive and not as disjunctive. The argument is without force. This phrase has been interpreted by Supreme Court of Pakistan in Salehon's case P L D 1969 S C 267 though with reference to section 497, Cr.P.C. and their Lordships held as under:

...the plain meaning of the clause 'punishable with death or transportation for life' is 'punishable with death' or punishable with transportation for life."

6. In view of the above authority the petitioner having been convicted under section 326, P.P.C. which is punishable "with imprisonment for life" was not eligible for being placed on probation under the Ordinance. Consequently, the impugned order passed by Additional Sessions Judge setting, aside the probation order passed by the trial Court in favour of the petitioner, is not open to exception. This petition, therefore, being without merit is hereby dismissed.

S. A. Petition dismissed.

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