' ASIF SAEED KHAN KHOSA, J.---Khizer Hayat appellant was tried in case F.I.R. No,.370 registered at Police Station Makhdoom Rashid, District Multan on 3-12-1992 in respect of an offence under section 324, P.P.C. Read with section 34, P.P.C. And vide judgment dated 23-12-2000 handed down by the learned Magistrate Section-30, Multan he was convicted for an offence under section 324, P.P.C. Read with section 34, P.P.C. And was sentenced to rigorous imprisonment for three years and a fine of Rs, 10,000 or in default of payment thereof to undergo rigorous imprisonment for one month. The appellant was further convicted by the learned trial Court for an offence under section 337-D, P.P.C. And was sentenced to imprisonment for one year and to pay Arshad amounting to Rs,86,667 to the injured victim namely Muhammad Akram. The sentences of imprisonment passed against the appellant were ordered to run concurrently. The appellant challenged his convictions and sentences before the Court of Session, Multan but his appeal filed in that regard was dismissed by a learned Additional Sessions Judge Multan vide judgment dated 7-2-2002.
Thereafter the appellant preferred Criminal Revision No,.80 of 2002 before the Lahore High Court, Multan Bench, Multan which too was dismissed by a learned Judge-in-Chamber of the said Court vide judgment dated 27-2-2003. Hence, the present appeal by leave of this Court granted on 30-4- 2003.
2. We have heard the learned counsel for the parties and have gone through the relevant record of this case with their assistance. The learned counsel for the appellant has maintained that the occurrence in this case had taken place on 3-12-1992 and the charge framed against the appellant was in respect of section 324, P.P.C. Read, with section 34, P.P.C. Which at the time of the alleged occurrence carried only a sentence of imprisonment up to ten years and fine. According to the learned counsel for the appellant no charge had been framed against the appellant in respect of an offence under section 337-D, P.P.C. And, thus, the appellant could not have been convicted and sentenced for the said offence besides his conviction and sentence for an offence under section 324, P.P.C. Read with section 34, P.P.C. He has relied in this regard upon the provisions of Article 12(1)(b) of the Constitution of the Islamic Republic of Pakistan, 1973 and also upon the provisions of section 238, Cr.P.C. Reliance has also been placed by the learned counsel for the appellant upon the precedent cases of Haq Nawaz v. The State (PLD 1958 (W.P.) Baghdad-ul-Jadid 5) Nardeo Singh and others v. The State (AIR 1953 ALL. 726), Muhammad Farooq v. The State (PLD 1956 SC (Pak.) 248) and Akhtar Hassan Khan v. The State (1974 SCM R 199). As against that the learned Additional Prosecutor-General, Punjab, the learned counsel representing the learned Advocate-General, Khyber Pakhtunkhwa and the learned Additional Advocate-General, Baluchistan have maintained before us in unison that the allegations against the appellant also attracted the provisions of section 337-D, P.P.C. And, thus, no illegality or unconstitutionality had been committed by the learned courts below in convicting and sentencing the appellant for the said offence besides his conviction and sentence recorded for an offence under section 324, P.P.C.
Read with section 34, P.P.C.
3. After hearing the learned counsel for the parties and the learned law officers and after going through the relevant record of this case with their assistance we have found this to be unmistakably true that at the time of the alleged occurrence, i,e, on 3-12-1992 an offence under section 324, P.P.C. Carried a maximum sentence of ten years' imprisonment and fine and it was subsequently on 25-10-1994 that through introduction of Criminal Law (Third Amendment)
Ordinance, A 1994 the provisions of section 324, P.P.C., were amended and it was provided through the said amendment that a person committing the said offence was not only to be punished with a maximum sentence of ten years' imprisonment and fine for his intention to commit qatl-e-amd but he was also to be additionally punished for the injury caused by him with that intention. It is not disputed that the occurrence in the present case had taken place much prior to the said amendment and, thus, by virtue of the provisions of Article 12(1)(b) of the Constitution of the Islamic Republic of Pakistan, 1973 the appellant's sentence could not have been enhanced retrospectively.
We have also attended to the provisions of section 238, Cr.P.C. Which allow the court to convict a person for a 'minor' offence rather than for the major offence with which he has been charged but we have found that the provisions of section 337-D, P.P.C. Could not have been treated as constituting a minor offence visa-a-visa the offence under section 324, P.P.C. We have noticed in this context that at the relevant time an offence under section 324, P.P.C. Carried a maximum sentence of ten years imprisonment and fine whereas an offence under section 337-D, P.P.C.
Carried a maximum sentence of ten years' imprisonment and payment of arsh to the injured victim. We have, thus, failed to understand as to how the learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan could have treated an offence under section 337-D, P.P.C. To be a minor offence vis-a-vis the offence under section 324, P.P.C. And could have invoked the provisions of section 238, Cr.P.C. For the purpose.
4. For what has been discussed above, this appeal is partially allowed and the conviction and sentence of the appellant recorded and upheld by the learned courts below for an offence under section 337-D, P.P.C. Are set aside while maintaining his conviction and sentence recorded and upheld by the learned courts below in respect of an offence under section 324, P.P.C. Read with section 34, P.P.C. This appeal is disposed of in these terms.