MIR HAZAR KHAN KHOSO, J.---Leave to appeal was granted to the appellant to consider whether the order of the Additional Sessions Judge, Haripur, dated 15-12-1992, enhancing the sentence imposed upon the convicts by the trial Court was appealable if so whether the learned Judge of the Peshawar High Court, in exercise of jurisdiction under section 561-A, Cr.P.0 could set aside the order of the Additional Sessions Judge, passed in exercise of revisional jurisdiction.
2. The facts in brief giving rise to this appeal are that on 9-1-1985 at 9-10 a.m. Complainant Mst.
Sarwar Jan, the appellant herein before us lodged report with Police of Kot Najibullah agitating that on that night while her son Muhammad Iqbal was going towards his Dera when Lal Khan, his three sons Gulab, Ayub (respondents) and Sultan (absconder) intercepted hint on his way, dragged him to their Dera beat him severely, tied him with ropes and detained him illegally.
3. F.I.R. Was recorded at the police station. Investigation of the case was taken in hands by the police. Muhammad Iqbal was recovered from the Dera. Lal Khan, Gulab and Ayub were arrested and challaned. Sultan went underground. They faced their trial before the Court of Judicial Magistrate, Haripur.
4. Vide his judgment dated 19-8-1992 the Magistrate ' found them guilty and convicted them for the offence under section 325/342, P.P.C. As under:- "For offence under section 325, P.P.C. Sentenced them to suffer R.I. For one year and fine of Rs,10,000 each and in default to suffer R.I. For three months and for offence under section 342, P.P.C., sentenced them to suffer R.I. For six months and fine of Rs,1,000, in default to suffer R.I. For two months. Half of the fine if recovered was ordered to be paid to the victim. Their sentences were ordered to run concurrently."
5. Lal Khan, Ayub and Gulab filed Appeal No,8/12 of 1992 and complainant Mst. Sarwar Jan filed Revision Petition No,10/12 of 1992; which came for hearing before the Court of Additional Sessions Judge, Haripur, who dismissed the appeal but accepted the revision petition filed by Mst. Sarwar Jan and enhanced sentences of respondents Ayub and Gulab for offence under section 325, P.P.C., from one year to R.I. For five years, fine of Rs,10,000 to Rs,20,000 each. In default to suffer R.I. For six months more. Their sentences for offence under section 342, P.P.C. Were left intact but fine was enhanced from Rs,1,000 to Rs,5,000 each and in default to suffer R.I. For six months. If fine realized half of it was directed to be paid to victim Muhammad Iqbal.
' During pendency of the appeal Lal Khan expired. His appeal abated. Revision petition against him became infructuous.
6. Respondents Ayub and Gulab challenged the abovesaid judgment of the learned Additional Sessions Judge before the High Court Peshawar Bench, Abbottabad, where a Judge in Chamber on 4-10-1993 set aside the judgment of the Additional Sessions Judge, Haripur and restored the judgment passed by the Judicial Magistrate, Haripur.
7. Complainant Mst. Sarwar Jan approached this Court and sought for leave to appeal which was granted to her on 28-11-1993 in the term mentioned hereinabove in the introductory paragraph.
8. We have heard Mr. Khan Imtiaz Muhammad Khan, Advocate-on Record, for. The appellant, Mr. Munir Peracha, Advocate Supreme Court and Mr. Ejaz M. Khan, Advocate-on-Record, for respondents Ayub and Gulab and Mr. Shahzad Akbar, Advocate Supreme Court, for the State, and perused the record of the case with their dexterous assistance.
9. At the very outset the learned counsel for the appellant seriously attacked and vehemently criticized the order passed by the learned Judge in Chamber. He strongly challenged the revisional/inherent jurisdiction of the High Court and contended that under sections 439 and 439
(a) the jurisdiction of the High Court and that of Sessions Judge is concurrent. Once the Sessions Judge (including Additional Sessions Judge) exercises its powers under section 439 (A), the powers of the High Court under subsection (4) of ibid, in respect of the same matter are curtailed.
Consequently it is deprived of its revisional jurisdiction conferred upon it by section 439, Cr.P.C. He further contended that when revisional jurisdiction of High Court is ousted, in umbrella of inherent jurisdiction under section 561-A, Cr.P.C. It cannot interfere with the order passed by a Sessions Judge (Additional Sessions Judge) in respect of the same matter. In case of colourful exercise of its inherent jurisdiction restriction imposed under subsection (4) of section 439-A, Cr.P.C. Would not be only meaningless but redundant too. The purpose with which it is inserted in the section shall be frustrated.
10. To strengthen his contentions the learned counsel took us through the text of sections 439, 439- A and 561-A of the Code of Criminal Procedure.
11 It would be useful to reproduce the above three sections at this stage:-- "439.--(1) 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, be entitled also to show cause against his conviction.
' 439-A.--(1) In the case of any proceeding before a Magistrate the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the Sessions Judge may exercise any of the powers conferred on the High Court by section 439.
(2) An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him under any general or special order of the Sessions Judge.
' 561-A.--Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice."
12. Regarding the scope of section 561-A, the learned counsel invited our attention to ratio enunciated by this Court in case of (1) Muhammad Shafique and others v. Abdul Hayee and others 1987 SCM R 1371 and (ii) Touqir Jehan and another v. Asif Latif Bajwa and another 1994 SCM R 70.
13. In case of Muhammad Shafique and others v. Abdul Hayee and others this Court has taken the view-- "In Muhammad Samiullah Khan v. The State PLD 1963 SC 273 the powers possessed under section 561-A, Cr.P.C. Were considered with reference to the revisional powers possessed then by the High Court alone under section 439, Cr.P.C. And the following observations were made which are relevant to the case:-- ' The scope of the jurisdiction exercised tinder these two provisions is not similar. The revisional jurisdiction of the High Court under section 439 is indeed wide and is not confined merely to errors of law. In the exercise of its revisional jurisdiction the High Court can even, in appropriate cases, disturb findings of fact, as, for example, where there subordinate Court has wrongly placed the onus of proof or nor supplied the principles relating to the appraisement of evidence or an important place of evidence has been ignored. These things the High Court cannot do under section 561-A, The two jurisdictions are thus fundamentally different. Indeed, as a rule, the inherent jurisdiction of the Court to correct and abuse of process of Court or a patent injustice cannot be invoked where there is an express provision in the Code under which the case can be adequately dealt with ."
' In Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 this aspect was re-emphasized in the following words:- - "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilized as intercept or divert the ordinary course of criminal procedure as laid down in the procedural statute."
' The other cases decided by this Court and emphasizing the nature of powers possessed by the High Court under section 561-A, Cr.P.C. Are Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan PLD 1971 SC 677 and Khawaja Fazal Karim v. The State and another PLD 1976 SC 461.
' The jurisdictional requirements for the exercise of powers under section 561-A, Cr.P.C. Are:--
(i) To give effect to any order under the Criminal Procedure Code.
(ii) To prevent abuse of process of any Court.
(iii) To secure the ends of justice.
' Such a power cannot be exercised against the express language of the statute and it only preserves what is posessed or is inherent in the Court itself. The revisional power certainly goes beyond in so far as the propriety as is distinguished from the mere legality can also be examined therein. The powers possessed by the Courts under section 435/439, Cr.P.C. Do not impinge, curtail, or limit in any manner whatsoever the powers under section 561-A, Cr.P.C.
' In the decision referred to above by the learned counsel for the appellants where likelihood of defeating the legislative intent by invoking powers under section 561-A, Cr.P.C. In the grab of second revision are concerned if the jurisdictional requirements of an order under section 561-A, Cr.P.C. Are kept in view and fully observed there is neither the likelihood nor would there be the appearance of defeating the legislative intent by invoking in appropriate cases the powers conferred by section 561-A, Cr.P.C."
' In case of Tauqir Jehan and another v. Asif Latif Bajwa and another this Court has held:- "In support of the above appeal, Mr. Abdul Manan, learned ASC appearing for the appellants, has vehemently urged that the High Court while exercising jurisdiction under section 561-A, Cr.P.C.
Could not have interfered with the order passed by the learned Magistrate under section 523, Cr.P.C. And maintained by the learned Additional Sessions Judge as the above provisions could not have been pressed into service. In support of the above submission, he has relied upon the case of Fazal Karim v. The State and another 1986 SCM R 483 and the case of Malik Muhammad Rafique v.
Tehseen Qureshi (1985 SCMR 1539(1)).
' In the above first case, this Court while construing section 561-A, Cr.P.C. Inter alia observed that the same neither is alternate relief nor is additional relief granting provision but is to be invoked only in the interest of justice so as to seek redress of grievance for which no other procedure is available; whereas in the above second case, this Court declined a petition for leave to appeal against the judgment of the Lahore High Court, whereby the Supardari of a car during pendency of criminal proceedings had been ordered to be given over to respondent No,1 in the said petition for leave to appeal."
14. Controverting the contentions raised by the learned counsel for the appellant Mr. Muhammad Munir Peracha, the learned counsel for the respondents explained that the appellant as well as the respondents simultaneously had challenged the order of the Judicial Magistrate before the Court of the Additional Sessions Judge. Respondents challenged their conviction and sentences by Criminal Appeal No,8/12 of 1992 whereas in Criminal Revision No,10/12 of 1992, the appellants requested for enhancement of their sentences. The Additional Sessions Judge by Single Order dismissed the appeal of the respondents and accepted the revision petition and enhanced sentences of the respondents. The learned counsel reiterated that disposal of appeal and revision by single order actually has created the confusion. Otherwise there was no legal complication at all. However, the respondents then challenged the abovesaid order of the Additional Sessions Judge before the High Court in petition captioned under section 561-A, Cr.P.C. The learned counsel convassed that inadvertently section 561-A, Cr.P.C. Was misquoted in place of section 439, Cr.P.C.
He contended that respondents were aggrieved of the dismissal of their appeal by the Additional Sessions Judge . In fact they challenged it before the High Court. It could he only under section 439, Cr.P.C. Obviously misapplication of section he contended would neither annul the spirit of the application nor the revisional jurisdiction of the High Court to examine the propriety of the order.
The High Court on examination, he said, held the order illegal and set it aside. There is nothing wrong with it. Protecting the order of the High Court the learned counsel contended that a Judicial Magistrate First Class under section 32, Cr.P.C. Has jurisdiction to award sentence of imprisonment of either description up to three years with fine or with both. A revisional Court has the power to enhance it. There is no cavil on the proposition. But in respect of enhancing sentence of Magistrate First Class, the revisional jurisdiction of a Court under subsection (3) of section 439, Cr.P.C. Is limited. Where it can impose a sentence that a Magistrate First Class could award. The learned counsel complained that in the instant case the Additional Sessions Judge has sentenced the respondents much more than a sentence a Magistrate First Class could have awarded. The order of the Additional Sessions Judge was illegal and rightly dislodged by the High Court.
15. The learned counsel for the State adopted the arguments advanced by the learned counsel for the respondents and defended the order passed by the High Court .
16. To appreciate the contentions raised by the learned counsel for the parties it would be appropriate to reproduce the operative part of the order passed by the Additional Sessions Judge, Haripur. It reads:- "Therefore, their appeal against their conviction and sentence is rejected. They were awarded lesser punishment by the learned trial Magistrate, hence, on the acceptance of Revision Petition No,10/12 of 1992, their conviction and punishment under section 325/34, P.P.C. Is enhanced from 1/1 year R.I. Each to 5/5 years' R.I. Each, fine of Rs,10,000 each to Rs,20,000 each or in default of payment of fine they will further undergo 6/6 months' R.I. Each. Their conviction an sentence under section 342/34, P.P.C. For 6/6 months each is kept intact, while punishment of fine is enhanced from Rs,1,000 each to Rs,5,090 each or in default of payment of which they will further undergo 6/6 months' S.I.
Each. If the fine is realised, half of it will be payable to injured P.W. Muhammad Iqbal. Remaining order of the learned Magistrate is left intact."
17. On face of it the order reflects that it was in respect of Criminal Appeal No,8/12 of 1992 and Criminal Revision No,10/12 of 1992.
18. A bird's eye view of the operating part voices that it consists of two limbs. By one limb it has rejected appeal filed by the respondents. By second limb it has accepted revision petition filed by the appellant.
19. We agree with contentions of Mr. Peracha that actually disposal of the appeal and revision petition by one order has complicated the issue. We are conscious of it.
20. We are, therefore, inclined to dilate upon both the issues separately to avoid further confusion.
Let us say that the Additional Sessions Judge passed two separate orders. By one order he dismissed the appeal of the respondents. By second order he accepted the revision petition of the appellant.
21. There seems to be no cavil with the proposition that the respondents had the locus standi to challenge the order of the Additional Sessions Judge rejecting their appeal before the High Court in revision petition. There is also no bar on the High Court either to entertain or to dispose it off. But scope of its application has to be traced. Section 439, Cr.P.C. Says that a revisional Court can exercise all powers that an appellate Court can exercise under section 423, Cr.P.C.
22. For better understanding section 423 is reproduced as under:-- "423.--(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor or, if he appears, and in case of an appeal under section 411-A, subsection (2) or section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may--
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or sent for trial to the Court of Session or High Court as the case may, or find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction, (1) reverse the findings and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or send for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but subject to the provisions of section 106, subsection (3), not so as to enhance the same;
(c) in an appeal from any other order, alter or reverse such order;
(d) make any amendment or any consequential or incidental order that may be just and proper
23. The plain reading of the abovesaid section shows that a revisional court can maintain, alter or rescind the sentence awarded by the lower Courts.
24. The High Court being revisional Court was obviously competent to rescind the order passed by Additional Sessions Judge.
25. There is no cavil on the proposition that High Court in its revisional jurisdiction under section 439, Cr.P.C. , cannot interfere with the order passed by a Sessions Judge under section 439-A, Cr.P.C. In respect of the same matter. The section itself is so clear that it needs no more elaboration.
26. However, the moot point, which needs elaboration is whether High Court in its inherent jurisdiction under section 561-A, Cr.P.C. Could interfere with the order passed by Sessions Judge under section 439-A, Cr.P.C.
27. Before dilating upon the proposition we have to detect the fault in the order of the Additional Sessions Judge passed under section 439-A, Cr.P.C. Which induced the High Court to interfere with it.
28. The Additional Sessions Judge enhanced the sentences of the c respondents to imprisonment of five years and fine. This is indeed the inherent defect.
29. Question arises whether the Additional Sessions Judge was authorized under law to award such enhanced sentence.
30. Section 32, Cr.P.C. Says that Magistrate First Class may award sentence up to three years and fine or both. Section 439-A, Cr.P.C. Empowers a revisional Court to enhance a sentence. But its subsection (3) puts embargo saying that while enhancing sentence of Magistrate First Class a revisional Court can impose &sentence that a Magistrate First Class could impose.
31. Here sentence is beyond jurisdiction of Magistrate First Class, It is ab initio illegal. It is abuse of the process of Court. Obviously section 561-A, Cr.P.C. Bestows inherent powers upon a High Court to check abuse of the process of a Court. It is extensive in its application. Section 439, Cr.P.C. Does not circumscribe its such jurisdiction. The words "nothing in this Code" have been intentionally used by the law-makers to unbridle scope of section 561-A, Cr.P,C.
32. It has to be seen now that how far the High Court was justified in interfering with the order,passed by the Additional Sessions Judge and what is the case-law on the point.
33. In cases of Muhammad Shafique and others v. Abdul Hayee and others and Touqir Jehan and another v. Asif Latif Bajwa and another, this Court has laid down following conditions justifying for interfering of High Court under section 561-A, Cr.P.C.
(i) To give effect to any order under the Criminal Procedure Code.
(ii) To prevent abuse of process of any Court.
(iii) To secure the ends of justice.
34. The case in hand falls within four corners of the above-referred quotations. The High Court was thus justified in interfering with the order of the Additional Sessions Judge. There is nothing wrong with it.
35. Then the learned counsel for the appellant vehemently contended that Muhammad Iqbal son of the appellant was mercilessly beaten by the respondents which resulted in fracture of his bones.
He has been crippled. He is disabled. He cannot perform ordinary pursuits of life. The sentence awarded to the respondents is inadequate. It does not commensurate with the nature of injuries.
The respondents be imposed maximum sentence which could have been awarded by a Magistrate First Class. The learned counsel pleaded that this Court in appeal or under Article 187 of the Constitution of Islamic Republic of Pakistan is competent to pass an order which may be necessary for doing complete justice. There is no cavil on the proposition.
36. Facing embarrassing situation the learned counsel for the respondents pleaded that his clients have already undergone their sentences. They are out. It would be harsh if their sentences of imprisonment are enhanced. They are re-arrested and remanded to custody. However, there was consensus at the bar that it would in the interest of justice and interest of victim that if adequate compensation under section 544-A, Cr.P.C. Is paid to the victim. We are impressed by such consensus.
37. We are, therefore, inclined to maintain the conviction and sentences awarded to the respondents by the Judicial Magistrate but additionally award compensation under section 544-A, Cr.P.C. To the victim. The respondents are directed to pay compensation of Rs,25,000 each to the victim Muhammad Iqbal. They shall deposit it in the Court of Judicial Magistrate, Haripur within a period of one month. If fine has already been deposited as directed by the Judicial Magistrate by the respondents and paid to the victim the same shall be deducted from the compensation of Rs,25,000 . In failure whereof they shall suffer R.I. For six months in jail. The Judicial Magistrate shall issue coercive process for their arrest and remand them to custody in that event. Besides the concerned District Magistrate/Deputy Commissioner if asked by the Judicial Magistrate, to recover the compensation as arrears of Land Revenue from the respondents. The appeal is disposed of accordingly.