' This petition under section 561-A of the Criminal Procedure Code has been filed in the following circumstances:--
2. On 17-1-1991 at 15-30 hours Sher Bahader petitioner herein while travelling in a Suzuki was trapped by the police and found in possession of one gram of heroin. He was interrogated and led the police to his quarter wherefrom another five grams of heroin was recovered on the same day at 16-15 hours. In two different cases registered against him under section 3/4/24 of the Prohibition (Enforcement of Hadd) Order, 1979 vide F.I.Rs, No,10 and 11 dated 17-1-1991 at Police Station, Chitral, he was tried in the Court of S.D.M. Chitral, where he pleaded guilty to the charge. The trial Court in the case registered vide F.I.R. No,ll sentenced the petitioner to 3 days' R.I. And to pay a fine of Rs,200 vide order dated 20-1-1991. Vide order dated 21-1-1991 in case F.I.R. No,10 he was awarded punishment of one day R.I. And a fine of Rs JOO. The State filed revision petition before the learned Sessions Judge, Chitral against the orders of the learned S.D.M. The revision petition against the order dated 21-1-1991 in case F.I.R. No, 10 was dismissed, while the revision petition against the order dated 20-1-1991 of the learned S.D.M. Chitral in case F.I.R. No,ll was accepted and the punishment of 3 days' R.I. Was enhanced to 6 months' R.I. And fine to Rs,2,000. s The petitioner is aggrieved of the order of enhancement of his punishment and through this petition had invoked inherent powers of this Court under section 561-A, Cr.P.C, in order to secure the ends of justice.
3. Mr. Hussain Khan, Advocate for the petitioner contended that the two orders of the learned Sessions Judge passed in revision petitions are self- destructive and not tenable and that two trials for the same offence amounted to double jeopardy and that sentence enhanced was violative of the mandatory provision of law.
4. Mr. Muhammad Ismail Fahmi, Asstt. A.-G. For the State in reply argued that power of revision of a Sessions Judge under section 439-A of the Criminal Procedure Code are analogous to the powers of the High Court under section 439 and that the Sessions Judge could enhance the sentence. On my pointation that no order in revision could be made to the prejudice of the accused unless he has been heard, the learned Asstt. A.-G. Conceded that it is so but contended that the petitioner was heard as his presence is marked on the order sheets of the Sessions file.
5. The law as at present empowers Sessions Judges to hear and decide revision petitions. Section 439-A, Cr.P.C, gives the same power of revision to Sessions Judge as may be exercised by the High Court under section 439, Cr.P.C. Section 439, Cr.P.C, is required to be reproduced here so as to understand the point involved in the case: "439.-(l) In the case of any proceedings the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429.
(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under section 34 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 a Magistrate of the first class.
(4) Nothing in this section shall be deemed to authorise a High Court-
(a) to convert a finding of acquittal into one of conviction; or
(b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439-A*.
(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(6) 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 eonviction."
6. A careful reading of the above-quoted section of law would show that power of enhancement of sentence under subsection (1) of section 439, Cr.P.C, is subject to restriction contained in subsection (2) of section 439 that no order can be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
Subsection (6) of section 439, Cr.P.C, further provides that the convicted person to whom an opportunity has been given under subsection (2) of showing cause is entitled also to show cause against his conviction. The requirement of law of giving opportunity of hearing to the accused appears to an essential requirement when section 440 of the Criminal Procedure Code is perused.
This section provides that no party has any right to be heard either personally or by pleader before any Court when exercising his power of revision but the power of the Court is subject to the provision of subsection (2) of section 439 of the Criminal Procedure Code. The provision of law contained in subsection (2) of section 439 of the Criminal Procedure Code seems to have been violated in the present case. The accused- petitioner, no doubt, attended the Court of learned District and Sessions Judge, Chitral but nothing is mentioned on the file of the Court to show that he was afforded opportunity of hearing against enhancement of sentence. Since the order was made to the prejudice of the accused, as the sentence was being enhanced, the petitioner should have been specifically asked as to why his sentence should not be enhanced and in showing cause he was entitled also to show cause against his conviction. The mere fact that his presence is marked on the order sheet does not mean that he knew that the Court was going to enhance the sentence. There is a case law also on the point emphasizing for affording opportunity of hearing to the accused when the order to be made is to the prejudice of the accused. In Mushtaq Ahmad v.
The State (PLD 1966 SC 126) while setting aside the order of cancellation of bail of a learned judge of the High Court it was held:-- "But in this event the learned Judge, should in our opinion, have followed the procedure laid down by the said section, since he was disposed to make an order to the prejudice of the appellant.
Subsection (2) of section 439 clearly provides that "no order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence."
' In another reported case Fazal Rahim v. The State another (1974 SCM R 386) leave to appeal was granted to consider the effect of the omission to afford opportunity to the appellant to show cause against enhancement as provided in section 439 (2) of the Criminal Procedure Code. In the case supra on reference from Sessions Judge, Mardan to the High Court for enhancement of the sentence, the learned Judge of the High Court enhanced the sentence from 2 years' R.I. To 7 years'
R.I. Because the then learned Advocate-General who represented the State conceded that the sentence passed on the appellant was inadequate. The august Supreme Court in considering the effect of the omission of afford opportunity to the appellant to show cause against enhancement as provided in section 439 (2), Cr.P.C, observed as under:- "4. We have heard the learned counsel for the appellant and the learned Advocate-General for the State. There is no escape from the conclusion that miscarriage of justice has taken place due to the irregularity in the hearing of the Reference by the learned Judge without affording the appellant a proper hearing. Section 439 (2) of the Code enjoins that no order will be passed in exercise of the revisional jurisdiction by the High Court to the prejudice of any person withou hearing him. The facts stated above make out abundantly that the provisions of the subsection were not complied with. The order passed by the High Court cannot in the circumstances be maintained."
7. Two cases from Indian jurisdiction may also be cited. In the case of Abdul Kader and others v.
Emperor (AIR (33) 1946 Calcutta 452) retrial of the accused was held to be prejudicial to the accused and the order was set aside. In the case reported in AIR 1961 Bombay 261, it was held that Court was not bound to hear parties before dismissal of revision against order under section 145, Cr.P.C, but at the same time it was held that when an order which is to the prejudice of the accused is likely to be made, it is obligatory upon the Court under section 439(2) to give an opportunity to the accused of being heard either personally or by a pleader in his own defence.
8. The provisions of law as contained in section 439, Cr.P.C, and the case law on the subject referred to above clearly show that when the order prejudicial to the accused is made, he has to be afforded opportunity of hearing. The accused-petitioner herein was not afforded any opportunity which has resulted in miscarriage of justice. The impugned order dated 16-6-1991 of the learned Sessions Judge Chitral being illegal is, therefore, set aside.