1997 P Cr (PLP)

The present petition has been directed against the judgment, dated 15-12-1992, whereby the sentences of imprisonment awarded to the petitioners by the learned trial Court under section 289, P.P.C., till the rising of the Court each with a fine of Rs.500 each or in default thereof to further undergo S.I. for two months each, were enhanced to 6 months' R.I. each with a fine of Rs.1,000 each or in default thereof to further undergo R.I. for one month each, by the learned Additional Sessions Judge, Bahawalnagar, while accepting the revision petition for enhancement of sentences filed by the complainant.

2. Briefly stated the prosecution case is that on 29-3-1991 the complainant Sharaf Shah and his son Aftab Shah were coming after harvesting their sugarcane crop, while Falak Sher and Mazhar Shah P.Ws. were following them; and when they reached near the Baithak of Ghaffar Shah, Sher Shah accused instigated Hassan Shah accused that he should let lose his dog at Sharaf Shah complainant. On hearing that he fled away, while his son Aftab Shah was running behind him, when Sher Shah and Hassan Shah prompted their dog at Aftab Shah deceased, who bit him on his right cheek and ear and started dragging him by bringing him down to the ground. On raising hue and cry Falak Shah and Mazhar Shah got released Aftab Shah deceased and reprimanded Hassan Shah. The motive behind the occurrence, as stated by the complainant, was that he had got registered a case under section 380, P.P.C. against Ghulam Shah and Hassan Shah vide F.I.R. No.l/91, which was pending and due to that grievance Hassan Shah let lose his pet dog on the instigation of Sher Shah at him and his son Aftab Shah.

3. Both the petitioners/accused were challaned to the Court. At the trial, the prosecution had produced as many as five witnesses to prove its case. However, on the basis of the confessional statements of the petitioners, the learned trial Court convicted and sentenced them as stated above. The said conviction was not appealed against by them; but while accepting the revision petition filed by the complainant, the learned revisional Court enhanced the sentences of the petitioners/convicts, as stated above.

4. In the first instance, the petitioners had filed an appeal before this Court, but the same was converted into the present criminal miscellaneous under the provisions of section 561-A, Cr.P.C. vide order, dated 22-12--1992, as the said appeal was not competent having been filed against the order passed in a criminal revision petition contending for enhancement of the sentences awarded to the petitioners on the basis of their statement made before the learned trial Court to the effect that they accept their guilt and throw themselves at the mercy of the Court.

5. The learned counsel for the petitioners and the State were heard at length. It was pointed out on behalf of the State that as the child in question, namely, Aftab Shah, who had been bit by the dog of the petitioners, had subsequently died, therefore, the revisional Court had enhanced the sentences of the petitioners to the maximum i.e. to six months' R.I. each with a fine of Rs.1,000 each or in default thereof to further R.I. for one month each, that could be imposed for the offence charged under the provisions of section 289, P.P.C. However, it was conceded on behalf of the state that there was no proper legal admissible evidence on the record to prove that the death of the said child had occurred due to dog bite as charged.

6. In this respect, the learned counsel for the petitioners had also pointed out that the learned Additional Sessions Judge, by allowing the criminal revision petition filed by the complainant for enhancement of the sentences, had taken notice of a certificate as stated in para. 6 of the impugned judgment and obviously had been overwhelmingly influenced by the same, although the said certificate had neither been produced before the learned trial Court nor had i: been tendered in evidence in accordance with law at any stage of the trial of the case in question, and that, therefore, placing reliance on the said certificate for enhancement of sentences awarded to the petitioners vide the impugned judgment, was not sustainable in law. The learned counsel further argued that in any case awarding of the maximum sentences and fine to the petitioners by the revisional Court was excessive and militated against the principle of fair dispensation of punishment on the basis of the case made out pursuant to the evidence on the record. The learned counsel further argued that the petitioners have already suffered the agony of protracted trial till date and also suffered a short imprisonment, and that, therefore, it shall meet the ends of justice if the sentences awarded by the revisional Court vide the impugned judgment are reduced to the period already undergone by them. The learned counsel placed reliance upon Amir Khan v. The State PLD 1982 Pesh. 34 to argue that the sentences imposed can be reduced under the provisions of section 561-A, Cr.P.C. by this Court. In the said D.B. judgment the sentence enhanced under the revisional jurisdiction was reduced under the provisions of section 561-A, Cr.P.C. The Court has given its serious consideration to the facts and circumstances of the case and is constrained to observe that the reliance placed by the learned Additional Sessions Judge on the certificate produced before him, as stated above, was not in accordance with the law as it was not part of the evidence on record for consideration at the stage of hearing of a criminal revision petition for enhancement of sentences awarded to the petitioners by the learned trial Court; and that therefore, the said certificate had to be excluded from the consideration while deciding the criminal revision petition in question. It has been further taken notice of that the petitioners, who have already suffered the agony of protracted trial, had admitted their guilt before the learned trial Court and thrown themselves at its mercy, consequently they deserved to be dealt with in a correspondingly appropriate manner, which in any case, does not call for imposition of maximum sentences for the offence charged.

8. Therefore, while observing that the sentences of imprisonment till the rising of the Court awarded by the learned trial Court may have been excessively lenient, yet the maximum sentences imposed are excessive without doubt, the present criminal miscellaneous is hereby allowed by invoking the provisions of section 561-A, Cr.P.C. and the sentences of imprisonment imposed on the petitioners vide the impugned judgment are hereby reduced to the period already undergone by them, but the fine of Rs.1,000 or in default thereof R.I. for one month awarded to the petitioners individually, is hereby maintained. If has been stated at the bar that the petitioners have already paid the fine of Rs.500 each', imposed on them by the learned trial Court. If it is so, the rest of the fine of Rs.500 each shall be recovered from the petitioners or they shall suffer R.I. for one month each in default thereof.

9. In accordance with the modification in the sentences imposed on the petitioners, as stated above, the present criminal miscellaneous stands disposed of. N.H.Q./S-414/L????????????????????????????????????????????????????????????????????????????????? Sentences reduced,