P L D 1955 Lahore 364 (PLP)

A reference to the provisions of sections 452 and 325 would show that on conviction under any of these sections the convict must necessarily be sentenced to some term of imprisonment. A sentence of fine alone in such a case would be illegal. Niaz Ali respondent' was inter alia convicted of an offence under section 325 P. P. C. He must have been sentenced to some term of imprisonment. All the respondents were convicted of an offence under section 452 P. P. C. Each one of them must have been sentenced to some term of imprisonment as provided for in those sections. The sentences awarded by the trial Court were legal but the sentences as modified by Khan Sher Bahadur Khan Additional District Magistrate, are illegal. It is, therefore, respectfully submitted that the sentences awarded by the trial Court be kindly restored and those passed by the appellate Court may be set aside. Parties to appear in the Hon'ble High Court on 28th June 1954. Said Akbar, for Petitioner. Wirasat Hussain, for the Advocate‑General. Fazal Ghani for S. Muhammad 1qbal, for Respondents. ORDER OF THE HIGH COURT AKHLAQUE HUSSAIN, J.--‑This is a reference by the learn ed Additional Sessions Judge, Rawalpindi, under section 438, Cr. P. C. Niaz Ali, Abdul Aziz, Muhammad Ayub, Muhammad Sabir and Zaman Ali were tried by the Tahsildar of Kahuta, exercising the powers of a Second Class Magistrate, under sections 452, 325 and 147 P. P. C. The first named was convicted under sections 452, 325 and 147 P. P. C. and the rest under sections 452, 323 and 147 P. P. C. Niaz Ali was sentenced to two months' rigorous imprisonment and a fine of Rs. 50 and a further, period of one month's simple imprison ment in default of payment of fine. Each of the other four convicts were awarded one month's simple imprisonment (not rigorous imprisonment as stated by the two lower Courts) and a fine of Rs. 50 and another month's simple imprisonment if the fine was not paid. On appeal by the five accused the learned Additional District Magistrate, Rawalpindi, ordered as follows :‑ "After careful consideration of the case, I find that the accused were rightly convicted by the lower Court. The learned Magistrate has not awarded any' compensation to the injured person I think a sentence of fine will meet the ends of justice in this case. The sentence awarded by the lower Court is modified to the following extent. Niaz Ali appellant is punished with a fine of Rs. 100, in default to undergo two months' rigorous imprisonment. The rest of the four accused (appellants) are punished with a fine of Rs. 50 each, in default to undergo one month's rigorous imprisonment each. Out of the fine, if realized, Faiz Ali complainant is to be given Rs. 75 as compensation." The learned Additional Sessions judge has, recommended that the order of the appellate Court on the question of sentence should be set aside and that the sentences passed on all the five convicts by the trial Court be restored. It is remarkable that the only reason given by the appellate Court for modify ing the sentences passed by the trial Court is that the Magistrate had not awarded any compensation to the injured person. This could have been easily done by ordering the sum of Rs. 75, which he has allowed, to be paid to the injured person out of the fines imposed on the five convicts ; but this is no reason whatever for setting aside the sentences of imprisonment. The real point, however, which I am called upon to decide is whether in this case I should interfere with the sentences passed by the appellate Court. It is not denied that a mere sentence of fine for offences under sections 452 and 325 P. P. C. is illegal inasmuch as they are punishable under the Code with both imprisonment land fine. Learned counsel for the convicts has, relying on a Single Bench ruling of the late Punjab Chief Court in Emperor v. Hari Singh (21 I C 471) strenuously urged that in spite of the illegality I should not exercise my revisional powers because his clients have already satisfied the sentence passed on them by the lower appellate Court. In Hari Singh's case the accused had been convicted under section 325 P. P. C. and sentenced to a fine of Rs. 25 each. The District Magistrate recommended to the Chief Court that the accused be sentenced to imprison ment. The contention of the counsel in that case that the accused had already paid their fines and were not therefore subject to the jurisdiction of the Court and that the sentence of imprisonment at that stage would be tantamount to a second conviction was rejected. The learned judge, however, refrained from interfering with the order of the trying Magistrate on two grounds. The first was that "This Court should not exercise its discretion to interfere on the revision side where the exercise of the discretion would result in sending to jail persons who have not been sent to it by the Court of first instance." This broad proposition, as stated, cannot be accepted without qualification for obvious reasons. It would be wrong to say that where in a very serious case the Court below has sentenced an accused to imprisonment till the rising of the Court the High Court should not interfere in spite of being convinced that the sentence is grossly inadequate and the accused deserved a sentence of long imprisonment. The earlier ruling of the Chief Court in Queen Empress v. Chuni Lal (7 P R 1889 (Cr.)) was relied upon in support of that proposition. I have carefully examined the judgment in that case which was delivered by Sir Meredyth Plowden but find nothing in it to support the rule laid down by Sir Shadi Lal in Hari Singh's case. On the contrary, the only relevant passage in this judgment runs manifestly counter to the plenitude of the broad rule laid down by Sir Shadi Lal. , All that Plowden J. said was :‑ "The Court is, in particular, slow to interfere where interference would involve the imprisonment of persons already discharged from Jail, though this circumstance is no insuperable obstacle." This is something very different to the ruling on the point in Hari Singh's case. In a later case Emperor v. Shahzad Ahmad (A I R 1928 Lah. 961) Sir Shadi Lal himself ignored the rule propounded by him earlier in Hari Singh's case and acted upon the rule stated by Sir Meredyth Plowden J. in Chuni Lal's case. In that case the accused had been sentenced to simple imprisonment till the rising of the Court and a fine of Rs. 100 for an offence under section 409 P. P. C. The sentence of imprisonment was enhanced to one year's rigorous imprisonment. In the cases reported as The Crown v. Jagat Singh (I L R 1 Lah. 453), Emperor v. Shankar Aarayan Gosavi (A I R 1926 Bom. 256) and Haria Dusadh v. Emperor (A I R 1946 Pat. 239) the sentences were enhanced in spite of the fact that the accused had served out the sentences awarded to them by the lower Courts. I am, therefore, respectfully of the opinion that the rule relating to the exercise of the High Court's discretion laid down by Sir Wredyth Plowden is the proper one. Moreover, in' Chuni Lai's case there was no question of the sentence being illegal. The other reason given by Sir Shadi Lal for refusing to interfere with the illegal sentence in revision was a ruling of a learned Judge of the late Punjab Chief Court in Abdul v. Emperor (6 I C 639). The order in this case is a very short one and may be usefully reproduced in extenso :‑ "This has come here on the revision side and it is within my discretion to interfere or not, as I think fit, upon a consideration of all the circumstances. The first Court was certainly wrong in its order, for section 562, Cr. P. C., cannot be properly used in cases falling under section 457, I. P. C. I do not think I should alter the conviction to anything else, but I simply decline to interfere. In my opinion, there is nothing to be gained by now passing a sentence of imprisonment. Papers returned. Mr. Stephens should take care not to make such a mistake again." I regret I am unable to agree with the observation of the learned judge that section 562; Cr. P. C. cannot be properly used in cases falling under section 457 I. P. C. It was not a question of propriety but, one of utter illegality because the provisions of section. 562 have not been made applicable to offences under section 457 I. P. C. Nor am I able, with the greatest respect, to see the justification of the remark : "There is nothing to be gained by now passing a sentence of imprison ment." There was certainly much to be gained by correcting a patent illegality as also by punishing an offender in accordance with mandatory provisions of the law rather than the whims of a particular Court. The reasoning in this order is obviously unconvincing and was not resorted to by this Court in Emperor v. Sardara (A I R 1932 Lah. 258). There the Magistrate had applied section 562 to an offence of burglary and his judgment on the question of sentence was held to be "perverse" and was set aside. I have given the matter my most anxious consideration and I am unable to hold that it would be a proper exercise of a High Court's discretion to refrain from interfering with a sentence which is in direct contravention of mandatory provisions of law. For the foregoing reasons I accept the recommendation of the learned Additional Sessions judge, set aside the order of the lower appellate Court (excepting so far as it orders the payment of Rs. 75 to the injured persons out of the fines imposed on the five convicts, if realised) and restore the sentences passed by the trial Court. If Niaz Ali has paid Rs. 100 as fine, rupees fifty will he refunded to him. The accused shall be apprehended and made to serve out the sentences of imprisonment awarded to them by the trial Court. A. H. Order accordingly.