' SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---By this judgment, I propose to decide Criminal Miscellaneous No,1269-M of 2011 and Criminal Miscellaneous No,1817-M of 2011 as both these petitions have arisen out of one judgment.
2. The petitioners, Hafiz Muhammad Naeem, Hafiz Muhammad Ameen, Hafiz Muhammad Saeed and Hafiz Muhammad Shareef, allegedly on 10-8-2008 at about 11-30 p.m. While armed with sticks came at the house of the complainant and asked him as to why he had rented out the house to one Hafeez Ullah. The complainant replied that the house was owned by him and it was his sweet will to rent out the same to any person. Muhammad Shareef accused then inflicted a stick blow upon the complainant hitting him at his right `Ghutney'. Muhammad Saeed also inflicted stick blow on the left hand of the complainant whereafter rest of the accused started beating the complainant with fist blows, kicks and sticks.. On the alarm raised by the complainant Muhammad Ibrahim and Asmat Ullah attracted at the spot. The motive for the occurrence stated in the F.I.R. Is that Muhammad Shareef had the grudge against complainant for renting out his house to Hafeez Ullah. In this scenario case F.I.R. No,284 of 2008, dated 22-8-2008 was registered at Police Station Kundian, District Mianwali against the accused persons under sections 337-A(i), 337-F(i), 337-F(v) and 34, P.P.C.
3. On this complaint the Police after conducting the investigation, sent challan to the Court for trial of the accused persons. Rana Khalil Ahmad Khan, learned Judicial Magistrate Section 30, Piplan, District Mianwali after recording the evidence convicted the accused Muhammad Shareef and Muhammad Saeed under section 337-F(v), P.P.C. And awarded Daman of Rs,15,000 each while the accused Naeem and Ameen were convicted under section 337-A(i), P.P.C. And were awarded the sentence of payment of Daman of Rs, 5,000 each. It is noteworthy that the learned Magistrate did not award any imprisonment to the accused persons as Tazir. The conviction was recorded vide order dated 29-5-2010.
4. The complainant of the case feeling aggrieved by the conviction order assailed the same in revision petition filed under section 439-A, Cr.P.C. For enhancing the punishment to the accused persons. The accused of the case did not assail the judgment of the leaned Judicial Magistrate, rather paid the amount of Daman. Mr. Muhammad Yar Gondal, learned Additional Sessions Judge, Mianwali Camp at Piplan vide his judgment dated 17-5-2011 accepted the revision petition and awarded the rigorous imprisonment for two years in respect of injury No,1, two years in respect of injury No,2, one year in respect of injury No,3 and one year in respect of injury No,4-B. He further directed that the simple imprisonment for six months shall also be undergone by the accused persons in case of non-payment of Daman. The benefit of section 382-B, Cr.P.C. Was extended to the convicts. The accused persons feeling aggrieved by the infliction of the sentence of imprisonment have assailed the same in the instant petition under section 561-A, Cr.P.C. The complainant of the case also filed an application for further enhancement of sentence.
5. Learned counsel for the petitioners-accused argued that the Courts below did not notice that the F.I.R. Was lodged with a considerable delay of 11 days against the accused persons for which no plausible explanation was given. It is further submitted that there was a fracture of bone as per the medical record but the Radiologist was not examined as prosecution witness before the Court therefore, in view of the judgment reported as 2000 PCr.LJ 2075 the conviction could not be recorded against the accused. He further submitted that under section 439, Cr.P.C. It was mandatory for the Appellate Court to issue notice to the accused persons before enhancing their sentence, which notice was never given, as such the judgment is bad in law. By citing the case of Ali Muhammad v. The State (PLD 2009 Lahore 312), a judgment of Full Bench of this Court, it is argued that the award of sentence of imprisonment as a Tazir' by the learned Addl. Sessions Judge is not warranted by law as under section 337-N(2), P.P.C. Such imprisonment can only be awarded if the accused is desperate, hardened, habitual, dangerous or previous convict whereas admittedly the accused do not fall within this category. He thus prayed for setting aside the judgment of the Appellate Court.
6. On the other hand, learned counsel for the respondent-complainant while placing reliance upon the case of Mushtaq Ahmad and others v. Secretary, Ministry of Defence through Chief of Air and Army Staff and others (PLD 2007 SC 405) submitted that no notice was required to be given to the petitioners under the law before the enhancement of their sentence. He has supported the sentence awarded by the learned Courts below and also prayed for the enhancement of the sentence on the ground that the complainant of the case was given merciless beating by the accused persons. Learned DPG also supported the judgments of the Courts below.
7. After considering the submissions made by the learned counsel for the parties as well as the case-law cited at the bar, it is observed that the first two grounds taken by the learned counsel for the petitioners have no substance for the reason that these grounds could be taken by the petitioners by challenging the conviction order in the appeal before the Appellate Court, which appeal they did not opt to file, as such the, conviction order of learned Judicial Magistrate attained finality against the petitioners. The impugned judgment has arisen out of the revision petition filed by the respondent whereby he prayed for the enhancement of the sentence awarded to the accused, as such the scope of the case has become very limited on this aspect of the case.
8. There is also no substance in the contention of the learned counsel for the petitioners in respect of his arguments that no notice for enhancement of sentence was served upon the petitioners. The perusal of the revision petition filed by the respondent before the Appellate Court reveals that it was filed for the enhancement of the sentence in which the petition learned counsel for the petitioners-accused persons appeared and argued the same as is apparent from the impugned judgment. At this juncture subsection (2) of section 439, Cr.P.C. Is relevant to be reproduced hereunder: -- "(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 defence."
' Evidently the requirement of law is the hearing of the accused himself or through his pleader in the proceedings where his sentence was to be enhanced. It is not mentioned in the section that a separate written notice shall be given to the accused person before enhancing the sentence awarded to them. The contest of the present petitioners of the revision petition before the Appellate Court clearly manifest that they were conscious of the fact that the petition was filed against them for the enhancement of their sentence and they were heard through their learned counsel before passing the conviction order by the Court below. Accordingly the requirement of law was complied with, thus the objection of the learned counsel for the petitioners is repelled.
9. As far as the question of award of imprisonment in the case where the punishment of imprisonment is optional/additional punishment, the contention of the learned counsel for the petitioners has substance. There is a landmark judgment of Full Bench of this Court mentioned supra whereby this Court after taking into consideration the different views of the Court taken in other cases has authoritatively determined that the punishment of imprisonment as `Tazir' in all cases of hurt where the normal punishment to be, awarded to an offender is the payment of Arsh and Daman the sentence of imprisonment can only be awarded additionally if the requirement of subsection (2) of section 337-N, P.P.C. Are fulfilled. For the purpose of ready reference the wording of the section are reproduced hereunder:-- "(2) Notwithstanding anything contained in this chapter, in all cases of hurt, the court may, having regard to the kind of hurt caused by him, in addition to payment of Arsh, award Tazir to an offender who is previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour."
' The section in the view of this Court thus clarifies that the Courts in all hurt cases shall award the principal sentence of Daman or Arsh and would indict the accused for imprisonment as `Tazir' if he is found previous convict, habitual, hardened, desperate or dangerous criminal or he had committed the offence in the name or on the pretext of honour and not in all cases of hurt, this punishment of imprisonment can be inflicted. There is nothing in the evidence of the prosecution to show that the present petitioners fall within the category of the offenders as stated above, as such in view of the case of 'Ali Muhammad' (supra) the sentence of imprisonment imposed by the learned Additional Sessions Judge against the accused persons is found to be illegal.
10. For the foregoing reasons, Criminal Miscellaneous No,1269-M of 2011 is allowed resulting into the setting aside of the impugned order imposing sentence of imprisonment against the petitioners while the petition filed by the respondent-complainant for enhancement of the sentence is dismissed. The petitioners are presently detained in the jail. They shall be set at liberty forthwith if not required in any other case.