' This petition is directed against judgment dated 20-9-1995 passed by learned Additional Sessions Judge-III, Quetta.
2. Relevant facts briefly mentioned are, that petitioner having found in suspicious circumstances was apprehended by CIA Staff on 15th April, 1995 an Sabzal Road, Quetta. During personal search 7 pulvises containing six grams heroin, and 25 tablets of Methaqulone, were secured from his possession. Concerned CIA Staff prepared recovery memo. Exh.P/1-A at the spot, and forwarded them through Marasala Exh.P/2-A to Police Station Saddar where F.I.R. No,59 of 1995 was lodged under Article 3/4, Prohibition (Enforcement of Hadd) Order, 1979. After completion of investigation challan Exh.P/4-A was submitted, which came up for trial before learned Judicial Magistrate-III, Quetta.
3. Record reveals that at the commencement of proceedings charge was read out to appellant which he refuted and pleaded NOT GUILTY. Prosecution to substantiate recovery of six gram heroin and 25 Tablets Methaqulone from the possession of appellant has produced witnesses namely (P.W.1) Syed Abdullah, (P.W.2) Farooq Ahmad, (P.W.3) Maqsood Ahmed and (P.W.4) Amanullah, Investigating Officer. A certificate Exh.P/1-A showing that recovered articles comprised of 'heroin' and 'Menthoqulone' was duly proved by chemical analyses. Trial Court had recorded statement of appellant under sections 342 and 340(2), Cr.P.C. Wherein he denied all the accusations and claimed to be innocent. D.W. Haji Khuda-i-Dad was produced in defence for indicating apprehension of appellant from his house and false implication in this case.
4. Learned trial Court on the consideration of evidence found appellant guilty for the offence under section 4 of Prohibition (Enforcement of Hadde Order and sentenced him to undergo rigorous imprisonment for period of one year with fine of Rs,1,000 or in default further S.1. For one month.
5. Appellant challenged the above sentence and conviction by way of appeal, which came up for disposal before Additional Sessions Judge-III, Quetta. It may be seen that Appellate Court by means of judgment dated 20th September, 1995, holding appellant responsible for the commission of offence under section 4 of Prohibition (Enforcement of Hadd) Order, 1979 enhanced the sentence of imprisonment from one year to that of two years besides ten stripes. Fine imposed by trial Court was kept intact but for default punishment was converted into rigorous imprisonment.
6. Now being aggrieved from above-referred judgment of Appellate Court present petition was filed on 19-10-1995.
7. Syed Shabbir Shah, learned counsel for petitioner emphatically urged that petitioner through appeal had challenged conviction and sentence awarded to him by learned Judicial Magistrate.
Therefore according to him, Appellate Court has no jurisdiction to enhance the sentence, specially when State had neither challenged quantum of sentence nor sought such increase.
8. Mr. Abdul Karim Yousufzai, Advocate, appearing for the State candidly conceded that Appellate Court had no lawful authority to enhance the sentence, merely on the appeal filed by appellant.
9. I have carefully considered above discussed legal and factual aspects, in the light of available record. Pivotal question which arises for consideration would be whether, in connection with appeal filed by convict praying for his Acquittal Appellate Court without any move from State and prior notice can enhance the sentence.
It is an admitted feature of the case that notice for enhancement was never issued to convict/appellant. Scrutiny of record explicitly discloses that state also had not moved, appellate forum for enhancing the sentence. It is quite apparent that appellant had merely challenged the correctness of conviction and sentence awarded by the trial Court. Therefore, in the absence of any move from state the Appellate Court under law had only powers either to (i) accept the appeal, (ii) reject the appeal, or (iii) reduce the sentence awarded by trial Court. Appellate Court obviously is not vested with any suo motu authority or jurisdiction for enhancing the sentence during appeal filed by convict/appellant specially without giving prior notice and providing fair opportunity of hearing. Without prejudice it may be seen that circumstances of case and quantity of recovered articles even otherwise do not justify awarding of maximum punishment. The judgment of Appellate Court dated 20th September, 1995 is, therefore, totally without lawful authority, and in excess of jurisdiction, vested in said forum.
' Observation in cases Abdur Rehman and others v. Khurshid Hussain and others (1976 SCM R 195), are helpful in this behalf.
' For the above reasons, I am inclined to accept the Revision Petition, set aside judgment dated 20- 9-1995 passed by learned Additional Sessions Judge-III, Quetta. Since no grievance concerning judgment passed by learned Judicial Magistrate, Quetta dated 23-8-1995 has been raised, therefore, same shall hold the field. Petitioner, however, be entitled to benefit of section 382-B, Cr.P.C.
Revision .