P L D 1994 Peshawar 38 (PLP)

Muhammad Aslam Khan, A.A.‑G. for the State. Malik Inayatullah for the Complainant. Date of hearing: 4th October, 1993. Ayub and Gulab sons of Lal, resident of village Thal1a, P.S. Kotnajibullah, District Haripur, petitioners herein, alongwith their father Lai now deceased were convicted under section 325/34, P.P.C. and sentenced to suffer one year R.I. and fine of Rs. 10,000 each or in the default of payment of find to undergo further 3 months' S.I. The petitioners were also convicted under section 342, P.P.C. and sentenced to suffer 6 months' R.I, fine of Rs.1,000 each and in default of payment of fine to undergo further 2 months' S.I. by the learned Magistrate Ist Class, Haripur vide judgment dated 19‑8‑1992 in case F.I.R. No.4 dated 9‑1‑1985 P.S. Kotnajibullah under section 324/342/34, P.P.C. at the instance of one Mst. Sarwar Jan complainant. Both the sentences are to run concurrently. The petitioners preferred an appeal (No.8/12 of 1992) before the learned Additional Sessions Judge, Haripur from the judgment dated 19‑8‑1992 while the complainant Mst. Sarwar Jan instituted Criminal Revision (No.10./12 of 1992) under section 439‑A, Cr.P.C. praying for enhancement of sentences. Learned Additional Sessions Judge, Haripur seems to have consolidated the criminal appeal and petition for revision and delivered one judgment dated 15‑12‑1992. The appeal of the petitioners was dismissed and the petition for revision was accepted and the sentences under section 325/34, P.P.C. were enhanced from one year R.I. to 5 years' R.I. each, fine of Rs.10,000 each to Rs.20,000 each and in default of payment of fine to undergo further 6 months' S.I. each, the sentences under section 342/34, P.P.C. of imprisonment of 6 months were maintained but fine was enhanced from Rs.1,000 each to Rs.5,000 each and in case of non‑payment of the same to undergo further 6 months S.I. each. In case of realization of the fine, half of the same is to be paid to injured P.W. Muhammad Iqbal. The petitioners have instituted this Cr.M.(Q) No. 2 of 1993 for quashment of the judgment dated 19‑8‑1992 of the learned Magistrate and judgment dated 15‑12‑1992 of the learned Additional Sessions Judge, Haripur.

2. Learned counsel for the petitioners firstly contended that the petitioners have not availed the opportunity of the provisions of section 439, Cr.P.C. before this Court, therefore, the petitioners will be entitled to be heard in revision. Secondly it was argued that if revisional powers have been once exercised in the case then this Court may exercise jurisdiction under section 561‑A, Cr.P.C. for quashment of the enhanced sentences imposed by the learned Additional Sessions Judge and, therefore, confined his arguments to the same fact.

3. The learned Additional Sessions Judge delivered one judgment in the criminal appeal and as well in the petition for revision. The procedure of hearing of appeal from a conviction and sentence of an offence is provided in Chapter XXXI (section 404 to section 431) of the Code of Criminal Procedure and the petitions for revision are heard under Chapter XXXII (sections 435 to 442), Cr.P.C. It will be noticed that the procedure for hearing of appeal and that of petition for revision are distinct and separate. In every trial and in every case the judgment is delivered according to the procedure laid down under Chapter XXVI (sections 366 to 373), Cr.P.C. There is no provision in the whole Code of Criminal Procedure for consolidating an appeal and petition for ,revision and delivering one judgment: The separate judgments to be delivered in every case (appeal or revision) becomes all the more necessary when on acceptance of petition for revision the sentence is enhanced under subsection (1) of section 439, Cr.P.C. Even if one judgment is delivered in such like cases then the reasoning of rejecting the appeal will not be the reasoning for enhancement of the sentence. A petition for revision can be dismissed on the reasons of dismissal or acceptance of an appeal but conversely it cannot be accepted for the same reasons in the case of enhancement of sentence and reasons are to be provided for the same either in the judgment delivered in the appeal or separately in appeal and as well in the petition for revision.

4. Since in this case the learned counsel has confined himself to the quashment of enhanced sentences, therefore, the petition is heard under section 516‑A, Cr. P.C. The proposition of law or procedure as to a person who has not availed the opportunity of a petition for revision in the next higher Court is left to some other case. The learned Additional Sessions Judge in the judgment dated 15‑12‑1992 after discussing the evidence rejected the appeal and thereafter observed that the appellants have been awarded lesser punishment by the learned Magistrate, therefore, petition for revision (10/12 of 1992) was accepted and the sentences were enhanced as abovementioned. As such there is no judgment in substance in Cr.R. No.10/12 of 1992 delivered under Chapter XXVI of Code of Criminal Procedure. In absence of a judgment the enhanced sentences are, therefore, quashed to meet the ends of justice under the law and procedure and the sentences pronounced by the learned Magistrate in judgment dated 19‑8‑1992 are maintained. The petitioners will also be entitled to the benefits of section 382‑B, Cr.P.C.

5. In this case the occurrence has allegedly taken place on 8‑1‑1985 at `Khuftan Qaza Vela' (about 9 p.m.) and the report of the occurrence was lodged by Mst. Sarwar Jan as F.I.R. No. 4 dated 9‑1‑1985 at 9‑30 a.m. to a police party on `gasht' which met the complainant near village Pind Kamal Khan. In the report it is stated by Mst. Sarwar Jan that her son Muhammad Iqbal left for `chowkidari' of his cattle in the cattleshed at `Khuftan Qaza Vela' (8‑1‑1985 at about 9‑00 p.m.). Early in the morning Mian Khan s/o Gul Zaman and Muhammad Rafique s/o Mir Zaman informed her in the house that her son Muhammad Iqbal was forcibly taken by Lal, Sultan, Gulab and Ayub to their shed. On meeting the police party on 'Gasht' she lodged the report and motive was stated that about 6/7 months earlier the cattlesheds of Lal were burnt down for which her son Muhammad Iqbal was suspected. In' the trial of the case Mst. Sarwar Jan was examined as P.W.1., Akhtar Hussain Shah 1.0. as P.W.7, Dr. Muhammad Iqbal Lodhi as P.W.8 and Muhammad Iqbal as P.W.9 and on this material evidence the petitioners were convicted. The statements of other prosecution witnesses in fact give some other version of occurrence. It is not clear from where the injured Muhammad Iqbal was recovered by the Investigating Officer who had gone to the place of occurrence. The version of the case is in three portions. One is when Muhammad Iqbal injured leaves for his own cattleshed, the other is when he is recovered from the premises of the accused and third is the informer of complainant Mst. Sarwar Jan. The proof of the first and the last third version is in doubt. The recovery of Muhammad Iqbal from the premises of the accused in the state of injury is proved. The learned Magistrate, therefore, in the circumstances of the case awarded lesser penalty to the petitioners appropriate with the proof in the case. The learned Judge while hearing the appeal has almost come to the same conclusion as to proof in the case and, therefore, dismissed the appeal. In the circumstances on merits, therefore, there are no reasons to enhance the sentence and the judgment of the learned Additional Sessions Judge in this respect has resulted into miscarriage of justice.

6. The petition is therefore, accepted as mentioned above in paras 4 and 5 of this judgment. N.H.Q./1509/P Order accordingly.