P L D 1961 (W (PLP)

Date of hearing : 12th December 1960. Sayed‑ul‑Konin, a young man of about 23 years of age, was tried by the Magistrate First Class, Nowshera, on a charge under section 380, P. P. Code, and was convicted of that offence by his order dated the 11th of August 1959. But instead of passing a sentence of punishment the Magistrate ordered him to execute a bond under section 562 of the Criminal Procedure Code in a sum or Rs. 10,000 for good behaviour for a period of three years.

2. The District Magistrate was of opinion that the accused should have been awarded some punishment and referred the case to this Court for the enhancement of the sentence under section 439 of the Code of Criminal Procedure.

3. Iqbal Hussain, who brought the charge of theft against the accused, stated that the accused used to come to his shop for the preparation of mixture and used to steal medicines from it when he was attending to the preparation of mixture in another room. He had suspicious against him and when on the 1st of July 1959 he came again for the preparation of a mixture he called his neighbour Qaisar Khan to stay in the shop and keep watch over the accused. He himself went inside to prepare the prescription. From there he was himself in a position to see the accused through the chicks of the partition.

4. The accused lifted some bottles of medicines from the almirah and put these into his pocket. He came out from the dispensary. Qaisar Khan, who was also watching him from another place came out and they arrested the accused and took him to the police station along with the medicines in his pocket. These medicines were taken out from his pocket by the police officer at the police station.

5. The accused denied the commission of this offence and said that he had a quarrel with Iqbal Hussain over the price of the medicines and he has foisted this false charge on him.

6. The evidence of the complainant and Qaisar Khan would leave none in doubt as the guilt of the accused. The conviction is unassailable. But the sentence is undoubtedly very lenient. He was not a first offender in the sense that there were already complaints of theft against him by Iqbal Hussain, though he was not charged and convicted of these thefts.

7. It has been contended on the accused's behalf that an order under section 562, Criminal Procedure Code, is not a sentence within the meaning of section 439, Criminal Procedure Code, which may be enhanced under that section. In this connection, an authority (A I R 1939 Sind page 339) was cited. The learned Addi tional Advocate‑General has referred to subsection (3) of section 562, Criminal Procedure Code. That subsection was inserted the Amending Act of 1923. It permits High Court to pass in The exercise of its revisional power, a sentence on offenders in lieu of the order made under section 562 (1) of the Criminal Procedure Code. He has also quoted A I R 1934 Lah. page 36 in support of this view.

8. The High Court has now under subsection (3) of section 562 of the Code of Criminal Procedure power to pass a sentence in lieu of an order made under section 562 (1) of the Criminal Procedure Code, when the matter is before it on the revisional side or on appeal, when there is a right of appeal against any such order to the High Court.

9. In the exercise of the powers conferred under section 439 read with subsection (3) of section 562 of the Criminal Procedure Code, I in lieu of the order made under section 562, Criminal Procedure Code, pass the sentence of one day's imprisonment till the rising of the Court and a fine of Rs. 200 or, in default six months' further rigorous imprisonment, on the accused Sayed‑ul- Konin. The accused is a patient of asthma and his detention in jail would be detrimental to his health. He has paid the fine in Court. K.B.A. Reference accepted.