By this revision application under section 439, Cr. P. C. Petitioner Photo son of Fakir Muhammed seeks enhancement of sentences Awarded to the respondents Nos. 1 to 6-by the judg--ment dated 11-1-1969 of the learned Sessions Judge, Dadu.
2. Respondents Nos. 1 to 6 were all accused in a case under sections 148, 302, 323, 324 and 325 read with sections 149 and 114, P. P. C. They were arrested on the basis of a First Information Repoit lodged by the petitioner at Mehar Police Station on 25-3-1968 at 8-45, p.m. It related to an occurrence having taken place at 'Tripahri' time, the same day in the course of which petitioner's cousin Lal Bux was killed and five others, namely Mohram, Misri, Mooso, Khuda Bux and Sheral sustained serious injuries. As the respondents Nos. 1 to 6 were alleged to have caused these injuries, they were arrested, challaned and tried for the said offences by the learned Sessions Judge, Dadu, who after considering the entire evidence recorded his findings n the following words :- "I have formed the firm opinion that none else but the accused of this case had taken part in this fight wherein Lal Bus fell injured and succumbed to the Injuries and Khuda Bux got grievous and simple hurts and Muhram, Misri, Mooso and Sheral received simple hurts."
3. The learned Sessions Judge was, however, of the opinion that the offence committed by the respondents was not that of murder but one under section 304, P. P. C., as according to him ft was a case of sudden fight. He, accordingly convicted and sentenced the respondents as follows Respondents Mohammed Khan, R. I. For 5 years under sec. Kouro, Muhram and tion 304 read with section 149, Neku.P. P. C. And R. I. For 6 months under each of the sections viz., 148, 323, 324, 325 read with section 149, P. P. C.
Respondent IsmailTo R. I. For two years under section 304/149, P. P. C. And R. I. For six months under each of the sections, 147, 323, 324, 325, read with section 149, P. P. C.
Respondent SawanTo R. I. For 12 months under each of the sections 323, 324, 325, 148, read with section 149, P. P. C.
4. Mr. Abdul Fateh Memon, the learned counsel for the petitioner has contended that these sentences and in particular the sentences of R.1. For five years and two years Awarded under section 304/149, P. P. C. Should be enhanced to those of transportation for life as on the facts of the case the respondents should have been convicted under section 302/ t49, P. P. C.
This contention is obviously misconceived. If the petitioner was dissatisfied with the judgment of the learned Sessions Judge he could have moved the Provincial Government through the District Magistrate for filing an acquittal appeal under section 417, Cr. P. C. In the event of Government's refusal to do so, the petitioner could have himself filed a revision petition challenging the acquittal of respondents Nos. 1 to 6 after comply--ing with the provisions of rule 1-A, Part A (b), Ch. 1, Vol. V of the High Court Rules and Orders. But he has not chosen to do so. Instead, the learned counsel for the petitioner asks that this Court should in substance punish the respondents for an offence under section 302, P. P. C. By enhancing the sentence under section 304, P. P. C. To transportation for life.
This in my humble opinion, would be doing something Indirectly what the law does not permit to be done directly. In this connection I cannot do better than to refer to an authority of the Federal Court of Pakistan reported as Rafique v. The Crown (1). Appellant Rafique in that case was convicted under section 304, P. P. C. And sentenced to undergo seven years' R. I. By the Sessions Judge Tharparkar, for causing the death of one Prihbu,
(1) PLD 1955FC7Q a Hindu resident of village Khhan. The learned trial Judge found on the evidence led before him that Rafique acted under the influence of grave and sudden provocation as he found the deceased in the company of Muslim girl, namely Mst. Nasiban. The learned Judges of the Chief Court, however, criticised the Assistant Publ;c Prosecutor incharge of the case for examining this Mst. Nasiban, as according to them this was a clear case of murder. In the absence of an acquittal appeal the learned Judges found themselves unable to alter the conviction to one under section 302, P. P. C., but nevertheless proceeded to achieve the same purpose, by enhancing the sentence of seven years' R. I. Awarded under section 304, P. P. C. To one of transporation for lire. Their Lordships of the Federal Court strongly disapproved of this procedure adopted by the Chief Court.
Cornelius. J. (as he then was) expressed his opinion in the following words :- "The learned Judges in the Cheif Court did not find them--selves empowered to replace the conviction under section 304 by one under section 302. P. P. C. Yet, while confirming the conviction under section 304, Part 1, they have assessed the sentence in relation to their belief that the case was one of murder, using for the purpose the extraordinary power of enhancement reserved to them by section 439, Cr. P. C.
The procedure thus adopted displays a grave error of principle. The conviction under section 304, Part I on the basis of grave and sudden provocation, rested on certain facts found by the trial Court. In confirming that conviction, the learned Judges have purported to Ignore those facts. It was not competent for them to do so, nor could they treat the case, for any purpose, as one of murder, in the absence of a power to alter the conviction. By maintaining the conviction for the minor offence and settling the quantum of punishment in rela--tion to the major offence, the learned Judges have fallen into an anomaly which was wholly unnecessary. They could have re- examined the adequacy of the sentence in relation to the facts found by the trial Judge, but this they have not done. The sentence Awarded by them to Rafique cannot be regarded as having been judicially imposed."
5. When I invited the attention of the learned counsel for the petitioner to this authority he contended that the sentences of R.
1. For five years in case of four respondents and that of R. I. For two years in case of respendent Ismail Awarded !n this case for an offence under section 304, P. P.
C. Was inadequate and, should, therefore, be enhanced. The learned counsel referred me to the decision of a learned Single Judge of this Court in Ghulam Rasool and 5 others v. The State (1), !n which Feroze Nana Ghulamally, J. Enhanced the sentence under section 326, P. P. C. From R. I. For ten years to one of transportation for life. That was, however, an extreme case in which the injured- women were permanently disfigured and disabled for life on account of acid throwing. This case is clearly distinguishable on factsi and cannot by any stretch of imagination, be considered as an
(1) 1968 P Cr. L I 927 authority for the proposition that a sentence of five years' R. I. Or even that of two years, R. I. Can never be considered adequate for an offence under section 304, P. P. C. There is nothing in the Pakistan Penal Code or in any decided case to that effect. Indeed, a survey of the reported judgments would show that in some cases even the sentences of three to six months' imprison-- ment have been held to be adequate for an offence under section 304, P. P. C. Committted under grave and sudden provocation.
6. This Court is always reluctant to take action in the matter pf enhancement of sentences and this is specially so, where an application has been made by a private complainant. It is well settled that the High Court does not ordinarily interfere with a legal and adequate sentence but would exercise its powers of enhancement under section 439, Cr. P. C. Only if the sentence is manifestly and grossly inadequate, so as to amount to a miscarriage of justice.
In Bhola Nath v. Emperor (1), the accused, a Jail Superinten--dent, on being attacked with shoe by a prisoner, thrust a wooden substance in his rectum resulting in the prisoner's death. He was convicted under section 304 and sentenced to R.
1. For one year but still the sentence was held not inadequate and was not enhanced.
This case was cited with approval by a Division Bench of the Sind Chief Court consisting of Mohammed Bachal and Inamullah, JJ. In Crown v. Ahmed Khan (2). The learned Judges in that case held that the sentence of 21 years' R. I. And fine in case of an offence under section 307, P. P. C.
Was not so grossly inade--quate as to call for interference by the Chief Court. In the words of Mohammed Bachal, J.- "The sentences are enhanced only in cases where the failure to enhance the sentence would lead to a serious miscarriage of justice. The mere fact that the High Court, had it been trying the case, might have imposed a higher sentence is not sufficient reason for enhancement. Even if this Court might have originally Awarded a heavier punishment enhanced sentence cannot be Awarded."
In Crown v. MunawarJehan Begum of Junagarh (3), a Division Bench of the Sind Chief Couit refused to enhance the sentence of imprisonment till the rising of the Court and a fine of Rs.6,000.00 or in default R. I. For six months under section 325/114, P. P. C. Although the accused had been originally tried for an offence under section 302, P. P. C. For having her 13 years old maid-servant beaten to death through her another servant. It was observed after considering several cases on the point that enhancement of sentence was not called for as the punishment Awarded to the accused was substantial.
7. 1 may also refer to a case from the Indian jurisdiction, namely, Bed Raj v. State of Uttar Pradesh (4), wherein accused
(1) A, I R 1932 Lab. 199 (2) PLD 1954 Sind 240
(3) PLD 1956 Sind 77(4) AIR 1955 SC 778 A & B ware jointly tried for murder of one P. A was convicted under section 304, of the Penal Code and sentenced to three years R. I. While B was acquitted. At the hearing of appeal filed by A the High Court of Allahabad issued a notice of enhancement in exercise of its powers under section 439, Cr. P. C. And ultimately A's conviction under section 304 of the Penal Code was confirmed but the sentence was enhanced to ten years' R. I. The reason that the High Court gave was that P was unarmed and as the attack was made with a knife it could not be said that the appellant did not act in a cruel or unusual manner. It was on these facts held by the Supreme Court of India that in the circumstances of the case the High Court was not justified in enhancing the sentence, as no adequate reason had been assigned by them for considering the sentence manifestly inadequate.
The sentence of three years' R. I. Originally Awarded by the trial Court was accordingly restored.
While daaling with the principles governing "enhancement of sentences in such cases their Lordships observed as follows :- "Now, though no limitation has been placed on the High Court's power to enhance it is nevertheless a judicial act and, like all judicial acts involving an exercise of discretion, must be exercised along well known judicial lines.
A question of sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate Court should not interfere to the detriment of an aacused person except for very strong reasons which must be disclosed on the face of the judgment: see for example the observations in Dalip Singh v. State of Punjab AIR 1953 SC 364 and Narsingh v. State of Uttar Preadesh AIR 1954 SC 457.
In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment. Intdrference is only called for when it is manifestly inadequate."
In the instant case it is no doubt correct that deceased Lal Bux lost his life. Nevertheless, if the findings of the learned Sessions Judge (which incidentally were never challenged in any appeal or revision against acquittal), that this was a case of an effence under section 304, P. P. C. Are correct, the sentence of R. I. For five years or even two years in case of respondent Mohd. Ismail cannot be deemed to be so grossly inadequate as to call for enhancement by this Court, about a year after the sentences were Awarded.
As all other sentences have been ordered to run concurrently with the sentences under section 304, P. P. C., the learned counsel
(1) AIR 1955 SC 778 for the petitioner does not stand to gain anything if the sentences Awarded under sections 147, 148, 323, 324 and 325, P. P. C. Are enhanced. In fact, his main contention in this revision petition was that the sentences of R. I. For five years under section 304, P. P. C. Were inadequate and that the sentence of two years' R. I. Awarded to respondent Ismail under the same section was even more inadequate. I regret, I cannot accept this contention as even in case of respondent Ismail, it was alleged that he was armed only with a laths and he was not responsible for any fatal injury.
Besides, as many as four persons have been sentenced to R. I. For five years each for the death of one person.
In view of what is stated above, I find no force in this revision application and it is accordingly dismissed.
Revision not allowed.