IKRAMULLAH KHAN, J.---Petitioner has sought his redress through the instant petition for quashment of the impugned order passed against him by the learned Additional Sessions Judge-III, Peshawar, whereby the petitioner's conviction was upheld but the sentence imposed upon him by the trial Court was enhanced from Rs, 10,000 to Rs,1,00,000.
2. The precise facts are that respondent No, 1, filed a complaint under section 499/500, P.P.C.
Against the petitioner, in the Court of Allaqa Judicial Magistrate, Peshawar. The said complaint was tried and on the conclusion of trial, the learned Judicial Magistrate while passing the Order dated 27-10-2010 found the petitioner guilty and thereby convicted and sentenced the petitioner to pay a fine of Rs,10,000 or in default to undergo 3 months simple imprisonment.
3. The petitioner deposited the fine as was imposed upon him and did not challenge his conviction and sentence before the Appellate Court, but the respondent No, 1 assailed the said order/judgment of conviction under section 439-A, Cr.P.C. In revision before the Sessions Judge, Peshawar, which was entrusted to Additional Sessions Judge-III, Peshawar.
4. The learned Additional Sessions Judge, on conclusion of hearing, upheld tht conviction, but enhanced the sentence of fine from Rs,10,000 to Rs,100,000. Hence the instant petition under section 561-A, Cr.P.C., has moved before this Court by the convict/petitioner.
5. The learned counsel for the petitioner/convict vehemently argued that the sentence imposed upon the petitioner, by the learned Additional Sessions Judge, through the impugned judgment is to be set aside being imposed without jurisdiction, hence illegal, as the offence as alleged by the respondent No, 1, purportedly committed somewhere in the year 1991/1992, and as such provided thereof in section 500, P.P.C. The quantum of sentence in terms of fine was not specifically determined or fixed, but was left to the discretion of the Court, but as a Magistrate of 1st Class could not inflict a sentence of fine more than Rs,45,000 as specifically provided thereof in section 32 of Cr.P.C., then how the revisional Court can inflict/pass a sentence which the trial Court could not inflict.
6. On the other hand, the learned counsel on behalf of the respondent objected to the maintainability of the instant petition and submitted that as the petitioner, did not challenge the conviction order passed by the learned Judicial Magistrate, could not challenge the impugned order while invoking the jurisdiction of this Court under section 561-A, Cr.P.C.
7. The learned counsel, cited at the bar the cases of "Ghulam Nabi v. The State" (1996 PCr.LJ 1335), Pir ul alias Pir Box v. The State (1992 PCr.LJ 1489) Superintendent of Police v. Shabir Abbasi and others (2005 PCr.LJ 1524) in support of his contentions, prayed for the dismissal of the instant petition.
8. I have carefully gone through the available record and anxiously considered the valuable arguments of the counsel for the parties as well as the learned Law Officer.
9. Prior to discuss, the merit of the case hereinafter I would like to give reference, to the provision of law, which has direct effect on the merit of the case in hand.
' Section 500. P.P.C Punishment for defamation. Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
' Provided that the originator of the defamatory imputation shall be punished with imprisonment of either description for a term which may extend to five years, or with fine which not be less than one hundred thousand rupees, or with both.
10. The proviso to the section 500, P.P.C., was inserted thereto, vide amended Act IX of 2004, promulgated on 30-11-2004.
11. Section 32 of the Cr.P.C. Determine the jurisdiction of various classes of Magistrates in terms of sentences, which they could inflict;-- ' Section 32 of Cr.P.0.................................
I. The Courts of Magistrate may pass the following sentences namely;- A. Courts of Magistrates of First Class; ... Imprisonment for a term not exceeding (three years) including such solitary confinement as is authorized by law; 'Fine not exceeding (Forty five thousand) rupees (arsh, damn) whipping.
' Section 439-A, Cr.P.0 empowers and invest Sessions Judges with the jurisdiction, which an High Court may exercise.
' Subsection (3) of section 439, Cr.P.C. Put an embargo in the exercise of revisional jurisdiction in the term of as under;- ' Where the sentences dealt with under this section has been passed by 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 Magistrate of the First Class.
12. In the instant case the offence as complained was committed some where in the year 1991/1992 while the charge was framed against the petitioner/convict on 17-7-2009 and, whereof the petitioner was .Convicted on 27-10-2010, insertion of the proviso to section 500, P.P.C. Was made in the year, 2004.
13. The legal proposition confronted hereof as is the commission of offence took place some where in the year 1992 and as such, the sentence provided there under section 500, P.P.C. At the time of commission of the offence, in term of fine was not specifically determined thereof and as the 1st Class Magistrate on the day of the commission of the offence was not authorized to inflict greater sentence in term of fine more than Rs,45,000 as envisaged in section 32, Cr.P.C., then the revisional Court cannot inflict a higher sentence than one, which might have been inflicted by a Magistrate.
14. It is by now settled principle of law and Constitution, that all the substantive law, applied, amended shall not operate retrospectively, but prospectively.
15. The Hon'ble Supreme Court of Pakistan in case of Ghulam Muhammad v. Irshad Ahmad reported as PLD 1982 SC 282, has held that;-- "High Court can of course enhance sentence of a convicted person suo motu under section 439(1) but in case of sentence passed by Magistrate acting otherwise than under section 34 cannot inflict a higher sentence than one which might have been inflicted by a Magistrate".
16. There is no any ambiguity, either in context or reference of section 439(1), Cr.P.C., so far as the jurisdiction of the revisional Court in matter of enhancement of a sentence is concerned, that the revisional Court, while exercising jurisdiction conferred upon it under section 439, Cr.P.C., could not inflict higher sentence, than one which might have been inflicted by a Magistrate.
17. Section 500, Cr.P.C. Has been amended through amended Act of the Parliament in the year 2004, effective on 30-11-2004, and the quantum of sentence provided thereunder were enhanced in terms of imprisonment and fine thereof would not effect a person, purportedly committed the offence, but certainly before the amended day.
18. All central or provincial Acts, Ordinance and Presidential Orders, Notifications come into operation from the commencing day, provided thereunder or on the day, when such legislation got assent of the President in case of Federal legislation or Governor in case of Provincial Legislation or when specifically directed in this behalf to apply otherwise. Section 35 of the General Clauses Act, 1897 envisaged as;- "Where any Central Act is not expressed to come into operation on any particular day, then it shall come into operation on the day on which it receive the assent of the President".
19. Article 12 of the Constitution of Islamic Republic of Pakistan also provide such-like safeguards in regard to retrospective punishment as is postulated thereunder as;- Article 12. --- Protection against retrospective punishment... (1) No law shall authorized the punishment of a person---- A. For an act or omission that was not punishable by law at the time of the act or omission or, B. For an offence by penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
20. The Constitution of 1973, which is the Supreme Law of the country, and any punishment/sentence awarded thereof to an accused against the provision of the Constitution hold no field at all. Any person convicted and sentenced in derogation of the provision of Article 12 of the Constitution could not be sustained on any ground whatsoever.
21. The Hon'ble Supreme Court of Pakistan in case of Mst. Sarwar Jan and others versus Mukhtiar Ahmad and others (PLD 2012 SC 217) has observed thereof as;- "It is settled rule that any statute or a provision thereof forming part of a substantive law, which creates or extinguish or effect right of the persons/citizen shall ordinary have a prospective effect, except where by the clear command of the law, it is made applicable retrospectively".
22. Similar view has been taken by the Hon'ble Supreme Court in case of Senior Member BOR and others v. Sardar Bakhsh Bhutta and others (2012 SCM R 864) and has held that;-- "It is by now a well-settled principle of statutory interpretation that the insertion, or deletion of any provision of in the rules or the law if merely procedural in nature would apply retrospectively but not if it effects substantive rights, which already stood accrued at the time when the unamended rule or provision of raw was in vogue".
23. Insofar as the judgments cited by the learned counsel for respondent are not applicable and fitting nowhere as far as the facts and law applicable to the present case was under consideration.
24. In this view of the matter in hand and the law cited hereinabove and reasons given thereof, this petition is accordingly partially allowed, the impugned judgment is hereby set aside and the case is remanded back to the lower appellate Court (Additional Sessions Judge) to re-hear the appeal filed by the respondent/complainant in the light of the provision of law mentioned hereinbefore and decide the appeal according to law, prevailing at the time of commission of the offence.