1977 SCMR 234 (PLP)

MUHAMMAD YAQUB ALI, C. J.--‑Jehanzeb, respondent, aged 17/18 was convicted by Magistrate 1st Class, Nowshera, under section 377, P. P. C. for having committed carnal intercourse with Naushad, aged 5 years, and sentenced to 3 months' R. I. The maximum sentence prescribed for the offence is life imprisonment or 10 years, R. I. but the Magistrate awarded the ridiculously inadequate sentence in view of the 'tender age' of the culprit. It was completely kept out of sight that the victim was aged 5 years and that the accused had acted brutally in forcing penetration which resulted in injuries to anus and the area around the anus. As a result of these injuries the trouser taken from the person of Naushad was found to be stained with blood. A learned Single Judge of the High Court held that the accused had committed a heinous offence and deserved exemplary punishment but declined to enhance the sentence in the view that the reason for which the Magistrate had awarded him lenient sentence was not perverse. There is a sentence in the judgment of the High Court "The enhancement of sentence at this stage is not called for as the accused has already undergone the sentence." Could it be that the learned Judge thought that the sentence passed by the Magistrate having been already suffered, the High Court hard no jurisdiction to enhance the sentence. If that is so then he wad clearly mistaken, for section 439 of the Code specifically carriers on the High Court the power to enhance tine sentence without the condition that the sentence awarded by the trial Magistrate must be subsisting The two decided cases mentioned in the High Court judgment have no bearing on the point. In Alta Muhammad Shah v. The State (P L D 1967 Lah 357), a teacher was sentenced to 2 years' R. I. for having committed carnal intercourse with a pupil, aged 9, under his charge. The sentence was enhanced to 4 years' R. I. The text laid down in the case with which we agree is:

.. if the sentence in a particular case is manifestly inadequate, it is competent to the High Court to impose additional punishment even though the convict has served out his sentence." In the instant case the appellant, aged 17/18 years, molested Naushad, aged 5 years, and committed forcible carnal intercourse with him. To penetrate, he applied force which resulted in injuries on the person of the victim. The offence committed by him was thus heinous as observed by the learned Judge in the High Court. On these facts the sentence of 3 months D R. L, awarded by the Magistrate, wag not only inadequate but wholly perverse and called for interference. We accordingly, allow the appeal and enhance the sentence awarded to the appellant under section 377, P. P. C. to 5 years' R, I. He will be taken into custody and made to suffer the rest of the sentence. Appeal allowed. Sentence enhanced.