2022 PLP 2 (YLRN)

NAZAR AKBAR, J.

Learned counsel for applicant has filed this Criminal Revision Application for enhancement of sentence of life imprisonment awarded to the Respondents by the court of Additional Sessions Judge, Tando Allahyar by Judgment dated 2.3.2019 in Sessions Case No. 135 of 2013 arising from Crime No. 44 of 2013 under sections 302, 324, 337-D, 337-F(ii), (vi), 504, 147, 148 and 149, P.P.C. registered at Police Station Chambar. The Respondents have already preferred Cr. Appeal No. 38 of 2019 against their conviction and life sentence and their appeal shall be heard by a Single Bench of this Court. We, have already passed an order in several identical revision application including Cr. Rev. Application No.15 of 2017 tagged with Cr. Appeal No. 52 of 2017 in which learned counsel Syed Tariq Ahmed Shah has also appeared on behalf of the complainant. The said order is reproduced below. "12.01.2021. Mr. Ghulamullah Chang, Advocate for appellants in Cr. Appeal No.D- 52 of 2017. Syed Tarique Ahmed Shah, Advocate for applicant in Cr. Rev. A. No.D- 15 of 2017. Appellants/respondents Manzoor and Muhammad Hanif are present on bail. Ms. Sana Memon, A. P. G, Sindh. "The aforementioned Cr. Appeal No.D-52 of 2017 is supposed to be heard by a single bench and in many cases it has already been ordered that merely by filing criminal revision application for enhancement of punishment, the appeal against the life imprison-ment filed by the convict cannot be converted into a case of appeal to be heard by the Division Bench. It may prejudice the case of the convict because if he makes out the case before the single bench and in case single bench allow his appeal, the revision application for enhance-ment of sentence would automatically become infructuous. Therefore, as we have already ordered in several other cases, the Revision Application is adjourned sine-die and the single bench matter is to be heard and decided by the Single Bench. It may further be mentioned here that if at all the Single Bench forms a tentative opinion that it is a case of enhancement of sentence, then the Single Bench will be required to issue a show cause notice under section 439(6), Cr.P.C. to the appellant and with that notice the criminal appeal can be sent to the Division Bench to be heard along with the pending revision application, which is adjourned sine die till the hearing of appeal by the single bench. In view of the above, Criminal Revision Application No.D-15 of 2017 is adjourned sine-die pending decision on Criminal Appeal No.52 of 2017 by the Single Bench of this Court, therefore, Criminal Appeal No.52 of 2017 be de-tagged and fixed before learned Single Bench of this court as per roster. The office is also directed to place copy of this order in connected file."

2. Learned counsel despite above order insists that this Revision Application should be heard by this Bench, though neither he has challenged the above order already passed by us nor are we supposed to review it subsequently in an identical case. We have not denied him hearing, we have only adjourned the Revision until the Single Appellate Bench of this Court while exercising power under section 423 of the Cr.P.C. in appeal already preferred by the Respondents under section 410 of the Cr.P.C. against their conviction may form a tentative opinion that it is a case of enhancement of sentence.

3. We may add here that right of appeal against conviction is statutory right of the accused that cannot be disturbed at the option of Complainant who has no statutory right to challenge the order of conviction. The order of conviction is not an interim order. It is a final order against the accused and not against the Complainant. It is only the accused who can be aggrieved by final order whereby the Court has convicted him and not the Complainant on whose FIR the State has prosecuted the accused and criminal court has awarded sentence of imprisonment for life. However, had the final order been an order of acquittal, then the Complainant could have exercised a statutory right to challenge it in appeal within thirty (30) days under section 417(2-A), Cr.P.C. It reads as under:--

417. Appeal in case of acquittal. (1)

(2)

[(2A) A person aggrieved by the order of acquittal passed by any court other than a High Court, may, within thirty days, file an appeal against such order].

4. In view of the above provision of Cr.P.C. we are of the view that Complainant/private person against the final order in a criminal trial has a right of appeal only in case of acquittal and not in case of conviction. In criminal case unlike civil case, the complainant/private person has no right to invoke revisional jurisdiction of High Court against a final order of conviction passed by a criminal court only because on his statement under section 154 of the Cr.P.C. a case was registered by the State. What should or should not be the quantum of sentence cannot be a grievance of the Complainant as long as the sentence awarded by a competent court of law is within the range of sentence prescribed by the law for the offence complained by a private person. As far as quantum of punishment is concerned, it is well within the power of the High Court as appellate court under section 423 of the Cr.P.C. to examine it while hearing an appeal filed by the convict under section 410 of Cr.P.C. The provision of section 439 of the Cr.P.C. clearly empowers the High Court to take Suo motu cognizance of the issue of quantum of punishment and even enhance the sentence after show cause notice under section (2) of section 439 of the Cr.P.C. to the appellant/convict. Section 439 of the Cr.P.C reads as under:-

439. High Court's powers of revision (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence; and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429. (2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Where the sentence dealt with under this section has been passed by a Magistrate the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed than might have been inflicted for such offence by a Magistrate of the first class. (4) Nothing in this section shall be deemed to authorise a High Court

(a) to convert a finding of acquittal into one of conviction; or (b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439-A. (5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. (6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under subsection (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.] The Single Bench of High Court by default would acquire knowledge of entire record from FIR to conviction and while exercising power under section 423 of the Cr.P.C. in its discretion may consider enhancement of sentence and issue notice to the respondents herein under section 439(2), Cr.P.C. and send Criminal Appeal to the Division Bench to finally decide the quantum of sentence after hearing the appellant along with the instant Revision Application.

5. Another legal aspect of the case is that the Complainant even during the trial as a private person had no independent right except to assist the prosecution to be conducted by the Public Prosecutor and cannot take over the role of prosecution. Relevant section 493, Cr.P.C. is reproduced below:-

493. Public Prosecutor may plead in all Courts in cases under his charge. Pleaders privately instructed to be under his direction. The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution, and the pleader so instructed shall act therein, under his directions."-- The provision of section 493 of the Cr.P.C. bars interference of any private person in criminal trial even if he is the Complainant, then how an order of conviction can be challenged by a private person whose rights under section 493, Cr.P.C. are limited to assist the prosecution and not the court. Therefore complainant/private person cannot be allowed to independently challenge the final order of conviction by showing a grievance against the sentence awarded by the trial court was to his disliking. The law makers have already taken care of this issue by empowering the appellate court particularly the High Court to consider the enhancement of sentence by giving notice to the appellant while hearing his appeal.

7. The appeal being continuation of trial, the complainant in presence of appeal already preferred by the convict may in terms of section 493 of the Cr.P.C. assist the Public Prosecutor to press the appellate court for enhancement of sentence by showing relevant evidence, if any. Learned counsel for the appellant/ complainant after going through section 439 of the Cr.P.C, conceded that the powers under section 439(2) of the Cr.P.C. to enhance the sentence can suo motu be exercised by the appellate court when the record and proceeding of the trial court would otherwise comes to its knowledge with the appeal under section 410 of the Cr.P.C. filed by the respondent/convict. It is a settled principle of law that no higher forum in the judiciary is supposed to assume the powers of subordinate court or another forum seized of the matter to examine the same proposition which can lawfully be examined by the said subordinate court or other forum. In these circumstances when a Division Bench of this court is not competent to hear an appeal against conviction and the issue raised by the complainant/private person in the revision application is well within the power of appellate single bench of this court to examine it, therefore, hearing of the same issue by the Division Bench this court would amount to assuming the power of Single Bench of this court. But for this very reason since the power under section 439 of the Cr.P.C. can also be exercised by a Single appellate Bench of this court we have refrained from deciding the Revision Applications and kept them pending/adjourned sine die so that no prejudice be caused to either side before the Appellate Court when during the hearing of appeal the High Court comes to the conclusion that this could a case of enhancement of sentence and make a reference by putting the applicant on notice in terms of section 439(2) of the Cr.P.C. and send the file of appeal to the Division Bench. It could not the vice versa.

8. In view of the above observations, this Revision Application adjourned sine die. JK/D-5/Sindh Order accordingly.