2006 PLP 1594 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This appeal by leave of this Court has been directed against the judgment, dated 7-5-2003 passed by a learned Judge in Chamber of the Lahore High Court, Lahore, whereby the Criminal Appeal No.78 of 2002, filed by the appellant, Rafiullah, against the conviction and sentence awarded to him by the trial Court under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 was dismissed with enhancement of sentence under section 409, P.P.C. from three years to ten years and fine of Rs.50,000 to Rs. 1,00,

000. In default of payment of fine, he was directed to undergo R.I. for six months.

2. Leave was granted in this appeal, vide order, dated 11-3-2005 as under:-- "I have gone through the leave granting order of senior puisne Judge and dissenting order of my learned brother Judge and have gone through the record minutely. (2) Briefly facts of the case are that the petitioner was charged under section 5 of the Prevention of Corruption Act, II of 1947, read with sections 409/411, P.P.C., by learned Special Judge Anti-Corruption, Sargodha, which charge was denied as such prosecution examined seven P. Ws. and after closing of evidence the petitioner was examined under section 342, Cr.P.C. who pleaded his innocence and stated that he has been falsely implicated in the case. After recording of evidence and hearing learned counsel for the parties, learned trial Court convicted the petitioner under section 5(2) of the Prevention of Corruption Act, 1947, read with sections 409/411, P.P.C. and sentenced him to three years' R.I. with fine of Rs.50,000 and in default to undergo further two months' R.I. extending benefit of section 382-B, Cr.P.C. The petitioner appealed against the judgment of conviction and sentence before the Lahore High Court; Lahore which appeal was dismissed but on issuing show-cause notice to the petitioner his sentence was enhanced from three years to 10 years' R.I. and fine of Rs.50,000 was also enhanced to Rs. 1,00,000 (one lac) or in default thereof six months' R. I. (3) Charge was read over to the petitioner on 5-12-2001 which stated that the petitioner while being posted as Malkhana Moharrir Saddar Mianwali during the period from 1995 to 1999 was entrusted with 25200 cartridges and an amount of Rs.4,26,133 being property of different cases was misappropriated by him and thereby committed criminal breach of trust punishable under section 409, P.P.C. read with 5(2) of Prevention of Corruption Act, 1947. The above charge would show that the petitioner has been alleged to have committed offence of breach of trust during the period of 1995 to 1999 in respect of the cases properties said to have been entrusted to him as per Exh.P.W.1-31 ranging from Entry No.1 to 313 in cases of the period from 1993 to 1998 consequently there has been contravention of section 239(c)(e), Cr.P.C. as the petitioner was charged for more that one offence of same kind allegedly committed during the period of five years which prima facie caused prejudice to the petitioner. (4) Besides above, under section 409, P.P.C. ingredients of entrustment is to be proved beyond any reasonable doubt before the accused is convicted under section 409, P.P.C. but in the instant case prima facie there is no evidence to the effect as to what amount of case property/arms ammunition were entrusted to the petitioner/accused and by whom under which acknowledgment entry of the register. Prima facie statement of P.Ws.2 and 3 who got the report prepared and found some amount and arms ammunition short but prima facie no proof of entrustment has brought on record. It has also to be observed that after arrest of the petitioner/accused one Abdur Rehman was having the key of Malkhana without he being given proper charge of the same by the petitioner. P.W.3 Inspector (Legal) Naik Muhammad has deposited that he did not check all the case property of the Malkhana and that the keys were with one Ataullah, City Moharrir, before charge was given to Abdul Rehman. P.W.4 Abdur Rehman has deposited that deficiency of currency was originally estimated as Rs.4,26,133 along with ammunition, but later on, after checking by Khalid Bashir Cheema, the currency notes valuing Rs.3,76,579 were found deficient. He also deposed that 25200 cartridges were found which were said to be missing, thereby all the abovesaid evidence appeared to be inconsistent with the charge so framed. (5) I may also add that petitioner filed an appeal before High Court under section 410, Cr.P.C. against his conviction by the Special Judge under Prevention of Corruption Act who possessed the powers of Sessions Judge, whereas the High Court while exercising the appellate powers under section 423, Cr.P.C. dismissed the appeal and enhanced the sentence from three years' R.I. to ten years' R.I. and also enhanced the amount of fine from Rupees fifty thousand to Rupees one lac, considering the fact that there was no appeal or revision from the State. It is also to be seen whether the High Court could have enhanced the sentence of the petitioner in its appellate jurisdiction when there was even no appeal from the State. (6) I have also observed that the impugned judgment of trial Court does not contain point for determination, decision thereon and reasons for decision as required under subsection (1) of section 367, Cr. P. C. (7) All the above legal points need consideration, therefore, in my view it is a fit case where leave to, appeal ought to be granted to consider inter alia the above legal pleas. I accordingly grant leave to appeal in the case and concur with learned senior puisne Judge."

3. Learned counsel for the appellant has contended that the enhancement of the sentence by the High Court in appeal in exercise of suo motu powers under section 439, Cr.P.C. was not legal pod proper as the power of enhancing sentence must be exercised sparingly only in exceptional cases in which failure to exercise such power, may lead to a serious miscarriage of justice. Learned counsel for the State, on the other hand has submitted that petitioner being Moharrar, Saddar, Mianwali, misappropriated the case properties of a number of cases, therefore, the High Court keeping in view the serious nature of allegation, while dismissing the appeal filed by the petitioner against the conviction, enhanced his sentence in its revisional jurisdiction. The perusal of record would show that allegation of misappropriation was not in respect of any` particular property rather he was charged in general terms for misappropriation of certain properties of different cases of the value of Rs.4,26,133 without giving the detail of such properties and High Court being influenced by the fact that petitioner was Moharrar, Sadar, without pointing out any exceptions circumstance for enhancement of sentence, interfered in the quantum of punishment. There is no cavil to the proposition that appellate or revisional Court, in the suitable cases, may examine the question of sentence but enhancement of sentence is not proper for mere reason that Court was competent to award maximum term of sentence provided under the law.

4. In the light of the foregoing reasons and points noted in the leave granting order, we are of the view that in the facts of the present case, there was no justification for enhancement of the sentence of appellant and consequently, the judgment of the High Court to the extent of enhancement of sentence of appellant, is set aside and the sentence awarded to him by the trial Court is restored. This appeal stands partly allowed. M.H./R-12/SC Order accordingly.