' By this revision petition the State represented by the Public Prosecutor seeks the enhancement of the sentence of Zahid Hussain respondent, who, vide judgment, dated 1-7-1986, delivered by Mr. Safdar Ali Khan, Additional Sessions Judge, Gujrat, was, on his conviction under section 302, P.P.C.
Sentenced to imprisonment for life and a fine of Rs,10,000 or in default to undergo 2 years' R.I. Half of the fine, if realized, was directed to be paid to the legal heirs of Akbar Ali Shah (deceased).
2. Today is fixed for argument on Criminal Appeal No,600 of 1986 filed by Zahid Hussain Shah respondent against his conviction and sentence as also for argument on this revision petition which, vide interim order, dated 7-7-1987, passed by a learned Judge then seized of the matter, was directed to be heard alongwith the said appeal.
3. The learned counsel representing the appellant in the cross appeal has sought adjournment due to short notice and lack of preparation of brief due to some ailment, while the learned Additional Advocate-General is ready to argue the appeal as also this revision petition. When I have asked the latter to address preliminary argument on the revision petition, which has not so far been admitted to regular hearing, the learned counsel for the appellant has opposed the move on the ground that as per interim order, dated 7-7-1987, it is to be heard alongwith the main appeal and unless the main appeal is heard, which cannot be heard today due to his inability to address argument, the revision petition also cannot be heard.
4. As a rule of prudence a revision petition arising out of the same judgment has ordinarily to be heard and decided alongwith the cross appeal but that stage will be reached only if the revision petition is first admitted to regular hearing. If it is dismissed in A limine, the question of its being heard alongwith the cross appeal obviously would not arise. The learned counsel has, in support of his request, contended that if the appeal is accepted or the appeal is rejected and there is no ground for the enhancement of sentence, in either case, the revision petition shall stand automatically dismissed.
' To this extent is right but in case the appeal is likely to be dismissed and a case is made out for the enhancement of sentence, in that event the revision petition shall have to be admitted to regular hearing and notice to be issued to the respondent for final hearing.
' In that eventuality the appeal as well as the revision petition both will have to be placed before a Division Bench of this Court and the efforts made in addressing argument on the appeal shall go waste. So in either case there are merits and demerits but, to my mind, the more feasible alternative is to hear preliminary argument on the revision petition and to take a decision: whether it is to be admitted to regular hearing or not. If it is dismissed in limine, the matter would end there and only the appeal filed by the respondent shall be heard. However, if it is admitted to regular hearing then it shall be heard alongwith the cross appeal and that would be the proper stage for 'hearing along'. In that event, both the matters shall be placed before a Division Bench. In other words, the decision to admit or not to admit the revision petition to regular hearing would determine the forum for the hearing of cross appeal which, in my opinion, is a sine qua non. The objection of the learned counsel for the appellant, who even otherwise does not seem to have locus standi to raise this objection, is therefore overruled and the learned Additional Advocate- General is allowed to address preliminary argument in support of the revision petition.
5. It is argued on behalf of the State that the respondent was rightly convicted by the trial Court under section 302, P.P.C. But he was erroneously awarded the lesser sentence of imprisonment for life by misquoting the authority known as 1985 PCr.LJ 2419 as Manzoor Hussain appellant in that case had been awarded lesser penalty of life imprisonment and fine on account of his youth considering it as a mitigating circumstance and not for the reason that he had fired a single shot on the deceased and did not repeat the same. He submits that the prosecution had led reliable ocular evidence supported by evidence of motive and medical evidence and since the respondent was rightly convicted under section 302, P.P.C. And there was no extenuating circumstance whatsoever in this case for imposition of lesser penalty, his sentence needs to be enhanced.
6. To appreciate various contentions raised in support of the revision petition .For its admission to regular hearing it is necessary to briefly state the facts of the case. In August 1980 Zahid Hussain Shah respondent and others had caused injuries to Qurban Ali Shah and in a case registered against them, Akbar Ali Shah (deceased) was one of the prosecution witnesses and was pursuing that case. This caused annoyance to them. In this inimical background, on 14-4-1985 at about 6-30 p.m. When Akbar All Shah (deceased) followed at some distance by Asghar Ali Shah complainant, Sajjad Ali Shah and Ali Naqi Shah P.Ws. Was going from his guest-house (Dera) situated to the north of village Abadi, towards his house in the village Abadi and reached near the mosque, Zahid Hussain Shah respondent accompanied by his brother and acquitted accused Zafar Hussain Shah, both armed with .12 bore guns, appeared in the street. Opening the attack, he fired a shot with his gun at Akbar Ali Shah (deceased), hitting him on the right side of his back followed by his brother Zaffar Hussain Shah who too fired a shot from his gun but as a result of the first shot since he had already fallen on the ground, this second shot missed him. Asghar Ali Shah complainant and other P.Ws. Challenged the assailants and tried to apprehend them but they. Made their escape good after warding them off by resorting to aimless firing. The complainant and his companions removed the injured to the hospital at Phalia where he succumbed to his injuries soon after reaching there.
7. The matter was reported to Phalia Police and a case was registered against the respondent and his acquitted co-accused under section 302/34, P.P.C. After the completion of investigation they were sent up to the trial Court and on the commencement of the trial they were charged for the murder of Akbar Ali Shah. On their pleading not guilty the prosecution led evidence against them and examined as many as 11 witnesses. On the conclusion of the prosecution evidence the respondent and his acquitted co-accused, in their respective statements under section 342, Cr.P.C., denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implication, professed innocence. The learned trial Judge, on the conclusion of the trial, convicted and sentenced Zahid Ali Shah respondent in the manner aforesaid after acquitting his co-accused Zafar Hussain Shah. Aggrieved by his judgment where the respondent has come up in appeal, the State has filed revision petition for the enhancement of his sentence.
8. The reporters do not seem to have given a correct heading to citation (f) in the aforesaid ruling reported as 1985 PCr.LJ 2419. The youth of the appellant in that case was one of the extenuating circumstances for the imposition of lesser penalty and not the sole ground for coming to that conclusion but the reporters appear to have wrongly tagged on with it the reason of appellant's firing single shot on the deceased and not repeating the same because this reason found no mention in the authority and the learned Judge was misquoted to that extent. The learned trial judge, in the last paragraph of the judgment under challenge, reproducing citation (f), adopted the same reason for awarding life imprisonment to the respondent. This point coupled with the ocular and medical evidence, and the evidence of motive apparently make out a good case for enhancement of sentence of the respondent. Therefore, the revision petition is admitted to regular hearing and its notice be issued to the respondent for a date to be fixed by the office. After the completion of service, the revision petition as well as the appeal both shall be placed before a Division Bench of this Court for final hearing.
' Notice for enhancement of sentence issued.