NISAR HUSSAIN KHAN, J.---Petitioner has questioned the order of learned Additional Sessions Judge-HI, Nowshera, dated 20.7.2016 vide which his appeal was dismissed and criminal revision filed by the State was allowed and the sentence awarded by the trial court was enhanced from 2 years to 10 years' R.I. With fine of Rs, one lac under section 409, P.P.C. Or in default thereof to further suffer simple imprisonment of 6 months.
2. Learned counsel for petitioner argued that daily diary and FIR of the case have not been exhibited, so it has no evidentiary value; that appeal and criminal revision cannot be decided through consolidated judgment, hence impugned judgment is liable to be set aside. In support of this argument placed reliance on Ayub and another v. The State (PLD 1994 Peshawar 38). He maintained that No, of SMG rifle mentioned in the FIR is altogether different from that of Ex.PW.1/4 and Ex.PW.1/5; that Kamran S.I. Who issued the ammunition and rifles has not been examined; that according to the PW.5, the said weapon was issued to one Abid Ali. He lastly submitted that father of the appellant PW. Khiyal Nawaz has deposited the amount i,e. Price of misappropriated weapons vide Bank receipt Ex.PW.1/2.
3. Learned AAG while controverting the arguments of learned counsel for petitioner submitted that FIR has properly been exhibited and non-production or exhibition of daily diary is immaterial; that appeal and criminal revision can jointly be decided if they both are stemming out the same judgment of the trial court; that no objection has ever been raised by the convict/petitioner on the documents tendered in evidence; that PW.8, father of the petitioner in his statement under section 164, Cr.P.C. Has supported the prosecution version but thereafter, he was declared hostile, during the trial because he resiled from his earlier statement; that prosecution has successfully proved its case beyond any shadow of doubt. He lastly submitted that petitioner has been terminated from service, on account of the same misconduct and misappropriation of the public property.
4. I have heard learned counsel for petitioner and learned AAG for the State and have gone through the record with their valuable assistance.
5. According to FIR, the occurrence took place on 10.2.2009 regarding which report was lodged and FIR was registered on 13.2.2016, with the allegation that Qasim Mahmood, constable No,656, attached with Ex-DPO Nowshera as gunner, had obtained one SMG rifle No,26101729 on 29.10.2009 with 4 magazines and 120 live rounds. Thereafter, he obtained another SMG Rifle No,3901916 on 21.12.2009 with 3 Magazines and 90 live rounds as per direction of the high-up from Police Lane Nowshera. He was thereafter relieved by the then DPO from his personal duty, but accused without depositing the said ammunition in Police Lane Nowshera, returned back to District Karak. The DPO Karak was addressed different letters on 20.10.2014, 12.2.2015, 1.9.2015, 22.10.2015 and 23.12.2015 and on umpteen occasions, was contacted on mobile phone but the accused has been putting off, deposit of the government property on one pretext or the other. In this respect Daily Diary No,29 of 21.8.2015 was registered in Police Lane Nowshera to the effect that accused is utilizing the said ammunition for his personal use which is illegal. On the basis of this report, FIR No,80 was registered in Police Station Nowshera under section 409, P.P.C. On 13.2.2016. The convict was arrested on 16.2.2016 from his native district Karak wherefrom he was shifted by the local police Karak to Nowshera in compliance with the letter Ex.PW.1/1 addressed to District and Sessions Judge, Nowshera, by Superintendent of Police (Investigation) Nowshera, through transit permit Ex.PW.4/2.
On 19.2.2016, Khiyal Nawaz, father of the convict recorded his statement under section 164, Cr.P.C.
Before the Judicial Magistrate Nowshera wherein he stated that his son Qasim Mahmood was performing duties as gunner of the then DPO, Nowshera, who obtained two SMG Rifles with seven magazines and 20 live rounds which were taken by him to District Karak. However, the said rifles have been lost by him at Karak on account of which FIR has been registered. So he deposited the price of the said ammunition, amounting to Rs,4,12,202/-, with the Police Department. The receipt of the deposit of the amount has been tendered in evidence as Ex.PW.1/2. While the receipts of both the Rifles vide which the same have been taken from the Police Lane, have been tendered in evidence as Ex.PW.1/4 and Ex.PW.1/5 These are the documents on which more stress has been laid by the learned counsel for petitioner. Entry in respect of SMG Rifle No, 26101729, Ex.PW.1/4 does not tally with the No, given in the FIR. However, No, of second SMG rifle mentioned in the FIR correctly corresponds with the entry Ex.PW.1/5 which was issued later on, with three magazines through Abid Ali constable. Abid Ali constable testified as PW.2 and stated that petitioner was performing duty along with him, with the then DPO as security guard and petitioner was incharge of the security of the said DPO. On the direction of Qasim Mahmood, incharge of the security, he obtained SMG Rifle No,3901916 along with 3 magazines having 90 live rounds from ammunition Incharge Nowshera, Jamal Shah and handed over to Qasim Mahmood which he took away along with him to District Karak and never returned. He was though cross-examined but no material contradictions affecting very fabric of the prosecution case could be detected. PW.4 Abdul Wali SI deposed about taking him out on Zamima-Bey, because accused was confined in jail in some other criminal case.
Statement of PW.2 has been corroborated by Jamal Shah, who by then was posted as ammunition Incharge regarding handing over of SMG Rifle to the convict through Abid Ali.
6. As regards objection of the learned counsel for petitioner regarding non-exhibition of Daily Diary and FIR, suffice it to state that the objection of the counsel is .Misconceived because FIR has been exhibited as Ex.PA in the statement of PW.9 Khaista Muhammad SI of Azakhel. Sofar as non- production of Daily Diary is concerned, suffice it to observe that since contents of diary have been incorporated in the FIR which has not been objected by the defence counsel when it was tendered in evidence. So mere non-production of the daily diary would hardly make any difference or create any doubt regarding lodging of the report and consequential registration of the FIR.
The objection relating to joint disposal of criminal appeal as well as criminal revision is also misconceived. It was an appeal by the convict against his conviction recorded by the Judicial Magistrate under section 408, P.P.C., vide which he was awarded two years' R.I., so it was competently entertained by the learned Sessions Judge or Additional Sessions Judge. Whereas State has filed criminal revision for enhancement of sentence in terms of section 439-A, Cr.P.C. By invoking the powers of the court under section 439(1), Cr.P.C. The powers vested in the High Court in terms of section 439, Cr.P.C. Are vested in the court of Session by virtue of section 439-A, Cr.P.C.
Revisional Court while exercising its powers has all the powers of court of appeal under sections 423/426/427 and 428, Cr.P.C. The objection of learned counsel may well be aptly met while referring to section 439(6), Cr.P.C. Which for ready reference is reproduced as follows :- "439. High Court Powers of Revision. 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.'
7. Cursory look of subsection (6) plainly suggests that when convict is asked to show cause as to why his sentence should not be enhanced, he has also been vested right to challenge his conviction, in the same proceedings. In view of subsection (6) of 439, Cr.P.C., he may also seek his acquittal by raising objection against his conviction without filing appeal and the court while deciding criminal revision may pass any order in terms of section 423, Cr.P.C. Exercisable by revisional court under section 439, Cr.P.C. If the objection of learned counsel for appellant is maintained, then section 439(6), Cr.P.C. Would stand redundant. Beside that when both the appeal and criminal revision, one against conviction and other for enhancement are sprouting from the same judgment on the same set of facts and evidence, can legitimately be decided through common judgment. Besides, there is no provision in the Code of Criminal Procedure, which specifically bars disposal of two petitions under sections 408 and 439, Cr.P.C. Through common judgment and it is general rule of law that whatever is not prohibited is permissible. In absence of any express barring clause in Cr.P.C. The court, in exercise of its inherent power, can decide suet two petitions, through common judgment, fate of which has strong bearing on fate of other.
Procedural laws are meant to regulate the court proceedings, not to vest or curtail its power. Laws of procedure are codified to cope with every emerging situation. Wherever the procedural law is silent, and circumstances so demand, the court in exercise of its inherent jurisdiction, can formulate its procedure, to meet the ends of justice. Procedural laws are meant to advance the cause of justice and not to thwart it. These laws neither create nor vest the powers. Rather just channelize and harmonize the existing powers of court. So disposal of criminal appeal against conviction and criminal revision for enhancement of sentence, through common judgment is not an illegality or material irregularity which may vitiate the proceedings, so recorded. For instance, there is no provision in Civil Procedure Code for consolidation of suits but are consolidated when parties and subject matter is same. Or parties are different but subject matter is same and final judgment is to effect the fate of other. The court, in exercise of its inherent power, consolidate the suits and decide through common judgment to avoid possibility of conflicting findings. Thus by virtue of reasons enumerated, with all respect and humility, I could not find myself in agreement with principle laid down in Ayub and another v. The State (PLD 1994 Peshawar 38), which is accordingly dissented from.
8. On merits, the question involved is; whether appellant was handed over any ammunition from the ammunition store Nowshera and secondly whether he returned the same? Evidence led by the prosecution establishes handing over of SMG Rifles to the petitioner when he was performing duty as gunner with the then DPO of Nowshera. It is not the case of petitioner that the ammunition in question was deposited with the concerned office. Rather he plainly denied taking over of any such ammunition. He has admitted to be employee in the Police Department, but as a Driver. However, during the course of trial, he did not produce any license of his employment as driver and not man of the field, so could not be handed over any ammunition. Beside that there is statement of his father under section 164, Cr.P.C. On the third day of his arrest, according to which, father deposited the price of the said ammunition in the Government treasury/police department vide Cheques Ex.PW.1/2. His father appeared as PW.8 who stated that his son was serving in police department and was deputed as gunner with the then DPO Nowshera. He recorded his statement under section 164, Cr.P.C. Ex.PW.8/1 on 19.2.2016 before the Judicial Magistrate wherein he deposed that he has deposited an amount of Rs,4,12,202/- in the National Bank of Pakistan, Nowshera and the statement correctly bears his signature. Since it was cross-examination on behalf of his son, so he gave favourable answers to the queries which arguably was a pre-planned, so he was declared hostile and cross-examined by the prosecution. However, whatever departure has been made by him, during cross-examination cannot nullify the effect of the statement made during the examination- in-chief, which he never contradicted. For arguments' sake if there was anything procured because of pressure or coercion, he would have made the same in examination-in-chief but he made very plain and simple statement similar to that of statement under section 164, Cr.P.C. Made at the initial stage of investigation. It was during the cross-examination when he offered favourable answers to the questions because of his relation with the convict, who is none else but his son, in order to give concessions for sympathetic consideration. The evidence so led by the prosecution has established the guilt of convict without any shadow of doubt because handing over of the Rifles to the petitioner is established who undoubtedly, at the time of entrustment of the Rifles/ammunition, was public servant and by not returning the same, he has committed criminal breach of trust.
9. The punishment provided for such offence is imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. It is evident from the record that the cost/price of the ammunition had been deposited by father of the convict at the very initial stage of registration of the case. Beside that he has also been terminated from service on account of same misconduct which both make an extenuating circumstance in his favour. So the learned lower court has ignored this aspect of the case and enhanced the punishment from two years to 10 years and also enhanced the fine.
10. Thus by accepting the instant petition, the impugned judgment/order of the appellate court, to meet the ends of justice, stands set aside and that of the trial court is restored.