' Mumtaz Khan, petitioner was convicted by the 1st Class Magistrate at Attock, under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 on the 27th of February, 1984, and sentenced to one month's R. I, with a fine of Rs, 2,000, or in default of payment of fine to undergo further 3 months' simple imprisonment.
2.The State filed a criminal revision petition before the learned Sessions Judge, Attock praying for enhancement of the sentence. It was accepted by the learned Sessions Judge, vide his judgment dated 23rd of October, 1984, and the sentence was enhanced to 4. Years' R.. I., with whipping numbering 10 stripes. The sentence of fine was also maintained.
3.It is contended by the learned counsel for the petitioner that as Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, provided only punishment up to two years' R. I. On the 21st of August, 1983, when the occurrence took place, the learned Sessions Judge had no authority in law to enhance the sentence by applying the law as amended vide P.
0. 12 of 1983, dated 26th of December, 1983.
4.It is argued that no criminal law can be applied with the retrospective effect, in view of Article 4 of the Constitution read with Article 12. The learned counsel for the State has nothing to say in defence of the impugned order. It is, however, explained by him that probably this point was not brought to the notice of the learned Sessions Judge when he passed the impugned order.
5. The law on the above point is well-settled that no Court can impose greater penalty than what was there on the date of the commission of offence. Even the amendment made on the 26th of December, 1983, did not apply the said provision retrospectively. The learned Sessions Judge, therefore, did not have jurisdiction to award a sentence greater than what was provided on the date of occurrence. The impugned order is, therefore, liable to be set aside ##0ES##.
6.I have also gone through the order of the Magistrate which was based on the confession of the accused. The trial Court, did have a good reason before it in giving the reduced sentence. I, therefore, do not find anything illegal in the discretion exercised. The result is that the order of the learned Magistrate passed on the 27th of February, 1984, shall be maintained. The petitioner shall also be released if he had already undergone the sentence awarded by the learned Magistrate and if his further detention is not authorised by a valid order.