1982 P Cr (PLP)

ALI HUSSAIN QAZILBASH, J.‑Amir Khan accused‑petitioner had fallen out with his wife Mst. Miraj Begum as a result of which she took abode in the house of her brother‑in‑law namely, Khushal. On the day of incident f. e. 6th December, 1978 she ‑ alongwith her sister Mst. Tea Begum, another woman Mst. Imtiaz and their children was present in the house of her sister‑in‑law when at about 5‑15 in the evening the accused petitioner appeared there duly armed with a pistol, abused his wife and started firing which resulted in injuries to his wife Mst. Miraj Begum and her sister. Mst. Taj Begum. On her part, Mst. Miraj Begum hurled a brick at her husband injuring him on his head. The report of the incident was made in the police station by Mst. Miraj Begum. After the investigation and arrest of the accused‑petitioner the case was put in the Court of Illaqa Magistrate who on trial found the accused‑petitioner guilty of the offence, convicted him under section 307, P. P. ‑C. and sentenced him to one year's R. I. This order was appealed froth by the accused‑petitioner and a revi sion for enhancement of the sentence was also filed by Mst. Miraj Begum. Both the appeal and the revision were heard by the; learned Additional Sessions Judge III Peshawar and while dismissing' the appeal of the accused‑petitioner, accepted the revision of Mst. MiraJ Begum and enhanced the sentence of the accused‑petitioner to one for imprisonment for life and a fine of Rs. 5,000 which on realisation was ordered to be paid to the complainant vide his order dated 1st October, 1980.

2. The above order of enhancement was challenged‑ through a revi sion‑petition which was admitted by a Division Bench of this Court on 26th October, 1980 obviously the second revision in view of section 439‑A, Cr. P. C. was not competent, the accused‑petitioner, therefore, moved this Court under the provisions of section 561‑A, Cr. P. C. which has been allowed by another Division Bench of this Court vide his order slated 30th March, 1981. Therefore, this petition is to lie entered and registered as one filed under section 561‑A, Cr. P. C.

3. Mr. Abdul Qadoos Khan, Advocate for the petitioner and Mr. Inayat Elahi Khan, Advocate‑General for the State heard. Admittedly, on merits the accused‑petitioner has no case and, as such, his conviction under section 307, P. P. C. is maintained.

4. The main grievance of the learned counsel for the accused- petitioner is that the learned Additional Sessions Judge could not impose the sentence of more than the powers of the trial Court and, therefore, the sentence imposed by the Additional Sessions Judge in exercise of his revisional powers cannot be sustained and it, therefore, requires inter ference by this Court under the provisions of section 561‑A, Cr. P. C. The learned Advocate‑General relying on the provisions of section 439 (3), Cr. P. C. also supported the contention of the learned counsel for the petitioner and submitted that the order of enhancement passed by the learned Additional Sessions Judge was patently illegal and liable to be set aside. He, however, submitted that the High Court under the provisions of section 561‑A, Cr. P. C. cannot oblige the petitioner in reducing the sentence but while setting aside the order of enhancement should remand the case to the same Court to pass the sentence according to law. 4‑A. After analysing the various relevant provisions of the Code of Criminal Procedure, we do not feel inclined to agree with the submissions made by the learned counsel for the parties. Under section 30, Cr. P. C. a Magistrate is empowered to try all the offences not punishable with death. Under section 34, Cr. P. C. a Magistrate with powers under section 30, Cr. P. C. can pass any sentence as provided for under the law for the offence committed but he cannot sentence a person to death or imprisonment beyond the period of seven years. In cases where the sentence required is more than seven years or death the same has to be tried by the Sessions Court which alone after the trial can pass any sentence as provided under section 31, Cr. P. C. In the case in hand, the accused‑petitioner was tried under section 307, P. P. C. by a Magistrate with powers under section 30, Cr. P. C. who convicted him thereunder and sentenced him to one year's R. I. On revi sion before the Additional Sessions Judge, Peshawar the sentence of the accused‑petitioner was enhanced to that of imprisonment for life and a fine of Rs. 5,

000. The question that emerges is whether the learned Additional Sessions Judge could enhance the sentence in revision to imprisonment for life 7 The answer in our view is in the affirmative in that under section 31 (2), Cr. P. C. he is competent to impose any sentence upon an accused‑person convicted for an offence as prescribed under the law. Therefore, there is no legal bar, whatsoever, on his powers to enhance a sentence to life imprisonment while exercising his revisional jurisdiction as provided for under section 439‑A, Cr. P. C.

5. As for the applicability of subsection (3), to section 439, Cr. P. C. raised by the learned Advocate‑General is concerned it is not relevant to the case in hand at all inasmuch as the Court of Sessions or for that the High Court in exercise of their revisional jurisdiction cannot inflict greater punish ment for the offences which are only dealt with by a Magistrate acting other than under section 34, Cr. P. C. and in all other cases the High Court and the Court of Sessions in exercise of their revisional powers can pass any sentence as provided under the law. In this respect reliance is placed on P L D 1966 Dacca 83 wherein it has been held :‑ "With regard to the powers of the High Court in respect of enhance ment of sentence we have kept in view the provisions of section 439, Cr. P. C. We find that except in the case mentioned in subsec tion (3) of section 439, Cr. P. C. the powers of the High Court are in no way restricted in enhancing the sentence imposed upon an accused by the trial Court. We may in this connection refer to the case of Emperor v. Ram Nath and others A I R 1935 All. 989, Raj Ram v. Emperor A I R 1935 Oudh 239 and Surajrai and others v. State of Bahar P L D 1958 (India) 333). In all these cases it has been held that the High Court has the powers to enhance the sentence‑ to impose a sentence upon an accused. Enhancement of sentence by the High Court is not controlled by the powers of the trial Court but by the sentence provided for in the section under which the accused is charged". Since in this case the learned Additional Sessions Judge was exercising the revisional powers of the High Court as provided for under section 439‑A, Cr. P. C. be could pass any sentence as provided for in the offence. There fore, the contention of the learned counsel for the parties as to the limitation placed on the powers of the revisional Court is hereby repelled.

7. Now we are left with the question whether we can exercise our powers under section 561‑A, Cr. P. C. and thus can interfere with the sentence imposed by the learned Additional Sessions Judge, Peshawar. The answer to this question again is in the affirmative. Limitation placed on the exercise of the inherent powers of the High Court under sec. tion.561‑A, Cr. P. C. notwithstanding, we‑find that in view of the nature and seats of injuries on the person of two injured witnesses, the manner in which the incident had taken place and the close relationship of the parties, the sentences imposed by the Courts below are in no way to secure the ends of justice. On the one hand, the sentence imposed by the trial Magistrate is ridiculously low while on the other hand the sentence inflict ed by the learned Additional Sessions Judge is too much excessive meaning thereby that none of them while inflicting punishment acted justly and equitably. Admittedly, the accused‑petitioner has no other remedy available to him excepting to knock at the doors of the High Court under section 561‑A, Cr. P. C , we would, therefore, in the exercise of the said powers, in the interest of justice, while maintaining the conviction of the accused‑petitioner reduce his sentence to five years' R. I. The sentence of fine imposed by the revisional Court is also reduced to Rs. 3,000 or in default to three months further R. I. which on recovery is to be paid to the complainant. The order of confiscation of the weapon in question, is, however, maintained. '

8. In the result, the petition is disposed of accordingly. Order accordingly.