1. 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 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947 was dismissed with enhancement of sentence under Section 409 PPC from three years and fine of Rs. 50,000/- to Rs. 100,000/- 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. Brief facts of the case are that the petitioner was charged under Section 5 of the Prevention of Corruption Act II of 1947, read with Section 409/411 PPC, by learned Special Judge Anti Corruption, Sargodha which charge was denied as such prosecution examined seven PWs 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 Section 409/411 PPC and sentenced him to three years RI with fine of Rs. 50,000/- and in default to undergo further two months RI extending benefit of Section 382-B Cr.P.C. The petitioner appealed against the judgment of conviction & 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 RI and fine of Rs.
2. 50,000/- was also enhanced to Rs. 1,00,000/- (one lac) or in default thereof six months RI.
3. 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 PPC 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 Ex. PW/1-31 ranging from Entry No. 1 to 313 in cases for 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. 4.Besides above, under Section 409 PPC ingredients of entrustment is to be proved beyond any reasonable doubt before the accused is convicted under Section 409 PPC but in the instant case prima facie there is not 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 PWs 2 & 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 Abdul Rehman was having the key of Malkhana without he being given proper charge of the same by the petitioner. PW-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. PW-4 Abdul Rehman has deposited that deficiency of currency was originally estimated as Rs. 4,26,133/- alongwith ammunition, but later on, after checking by Khalid Bashir Cheema, the currency notes valuing Rs.
5. 3,76,579 were found deficient. He also deposed that 25200 cartridges were found which were said to be missing, thereby all the above said evidence appeared to be inconsistent with the charge so framed.
6. 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.
7. 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 sub-section (1) of Section 367 Cr.P.C.
8. 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".
9. 8.Learned counsel for the appellant has contended that the enhancement of the sentence by the High Court in appeal in exercise of suo moto powers under Section 439 Cr.P.C. was not legal and 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.
10. 'The perusal or record would show that allegation of misappropriation was not in respect of any particular properly 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, Saddar, without pointing out any exceptional 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.
11. 3.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.