1. ' This Criminal Revision petition under section 434/439, Cr.P.C. Has been preferred against the judgment, dated 22-2-1997 passed by the learned Additional Sessions Judge-II, Quetta in Criminal Appeal No, 23 of 1996 filed by the convicts/respondents Nos.1 and 2 whereby the sentence of imprisonment and payment of Arsh and Daman awarded to the convict/respondents by the Court of learned Judicial Magistrate-IV, Quetta has been altered and reduced to the extent of payment of Daman only with the prayer to set aside the impugned judgment and the sentences awarded to the respondents Nos.1 and 2 he enhanced and the sentence passed by the learned Judicial Magistrate-IV, Quetta vide judgment, dated 5-11-1996 be upheld. Briefly, the stated facts of the case are that the respondents No,1 and 2 besides co-accused Abdul Karim and Abdul Majeed faced trial in the Court of Judicial Magistrate-IV, Quetta (Qisas and Diyat Ordinance Case No, 36/97) in Crime No,16 of 1996 registered with the Police Station City, Quetta on the complaint of the petitioner. Finally the learned trial Court vide its judgment, dated 5-11-1996 convicted the private respondents and acquitted the co-accused Abdul Karim and Abdul Majeed from the charge.
2. Following sentence was passed by the learned trial Court respectively against the private respondents:---
(1) Respondent Muhammad Salim was convicted under section 337-A(ii), P.P.C. Criminal Law (Amendment) Ordinance and sentenced to suffer R.I. For one year and to pay Rs,5,000 as Arsh or in default of payment of Arsh to suffer S.I. Till payment of the Arsh amount.
(2) Respondent Muhammad Shafi was convicted under section 337-F(i) and sentenced to suffer R.I.
3. For ten months and also to pay Rs,3,000 as Daman or in default of payment of Daman further to suffer S.I. For five months with benefit of section 382-B, Cr.P.C. Extended to both the accused.
4. ' The convict/respondents being aggrieved of their conviction recorded by Judicial Magistrate-IV, Quetta vide impugned order, dated 5-11-1996 preferred appeal in the Court of Sessions Judge, Quetta Division which was transferred to the file of learned Additional Sessions Judge-II, Quetta and registered as Criminal Appeal No,23 of 1996. The learned Appellate Court vide its judgment, dated 22-2-1997 maintained the conviction of the private respondent, however; taking a lenient view convicted them by altering their sentences as under:---
(1) Muhammad Salim convicted under section 337-A(i) and directed to pay an amount of Rs,2,500 as Daman to the victim Abdul Matin (petitioner) and in case of non-payment of Daman to suffer S.-I. For a term of six months.
(2) The respondent Muhammad Shafi convicted under section 337-F(1) and directed to pay an amount of Rs,1,500 as Daman to the victim Hasamuddin and in case of non-payment of Daman to suffer S.I. For a term of five months.
5. ' Record of the case from the Appellate Court was also called for while writing the judgment to ascertain if the convict/respondents had paid the amount of Daman pursuant to the order of the appellate Court. The examination of the record revealed that on the same day the amount of Daman was deposited in Court vide receipts Nos. 1308 and 1309.
6. ' I have heard the learned counsel for the parties and the learned Assistant Advocate-General in support of their respective contentions. The learned counsel for the petitioner contended that:---
(1) The private respondents have been found guilty by the appellate Court as well for the commission of the alleged offence but taking a lenient view illegally and in the misexercise of the powers vested in the learned appellate Court it altered the sentence of convict Muhammad Salim under section 337-A(ii) to that under section 337-A(i) whereas; the conviction and sentence awarded to the respondent Muhammad Shafi under section 337-F(i) altered to that under section 337-A(f). Both of them were directed to pay Daman to the victim Abdul Matirr and to the victim Hasamuddin respectively in the sum of Rs,2500 and Rs,1,500.
(2) The Appellate Court was fully satisfied on the basis of evidence that the private respondents have committed the offence for which they had been rightly convicted by the learned trial Court, yet instead of maintaining the sentence awarded by the learned ial Court appropriately to the convict/respondents, the appellate Court fell into legal error in altering their sentences and exercised the jurisdiction vested in it illegally by convicting them for the offence under sections 337-A(i) and 337-A(i) respectively with the penalty of Daman only.
(3) The medical evidence proved the nature of injuries sustained by the victims at the hands of the convict/respondents fully attracted the offence for which the convict/respondents were appropriately punished by the trial Court and the lenient view taken by the learned Appellate Court is without any basis and legal sanction. The discretion so exercised by the appellate Court did not vest in it.
7. ' The learned counsel for the convict/respondents submitted that since the petitioner has filed the revision petition seeking for enhancement of the sentence, therefore, the convict/respondents are entitled also to show cause against their conviction. Consequent upon the notice of the revision petition the convict/respondents submitted an application under section 439(6), Cr.P.C. On 9-6- 1997 before this Court notice whereof was given to the learned counsel for the petitioner who addressed the Court at length in support of the conviction of the private respondents.
8. ' The learned counsel for the convict respondents contended that there is old persisting enmity between the parties and on account of the said motive the petitioner has falsely implicated the convict/respondents. Besides two other innocent persons involved in the case, who have been acquitted by the learned trial Court, according to the learned counsel does not rule out the possibility of the false involvement of the convict/respondents in the case. The learned counsel emphatically argued that no appeal against order of acquittal of the two accused was preferred by the petitioner which speaks of the fact that on account of enmity persisting between the parties false case was got registered by the petitioner. The learned counsel submitted that the medical certificate of the injured Abdul Matin (petitioner) is silent about the nature of the injury whereas; in the injury certificate of Hasamuddin the injury has been mentioned to be simple, thus the learned counsel contended that the medical certificate of injured Abdul Matin is at variance to what has been stated by the P.Ws. According to the learned counsel the P.Ws. Are inimical and closely related to the complainant, therefore, their testimony was not beyond doubt in the circumstances of the case specially when the alleged occurrence took place in broad day light and the thickly populated area of Bazar but no independent ocular witness was produced by the prosecution. The learned counsel further submitted that it was a preplanned and set up case against the convict/respondents and other co-accused, therefore, the evidence is to be looked into and appraised in the back drop of the parties relations. He submitted that the order passed by the learned appellate Court is neither perverse nor illegal, therefore, instead of pressing for acquittal of the convict/respondents the learned counsel prayed that the sentence awarded by the learned appellate Court may not be disturbed in the interest of justice. The learned counsel placed reliance on reported judgment i,e, Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11.
9. ' The learned Assistant Advocate-General adopted the arguments putforth on behalf of the petitioner and submitted that the sentence passed by the Judicial Magistrate be maintained and convict/respondents be accordingly convicted.
10. ' I have considered the respective contentions of the learned counsel for the parties and the learned Assistant Advocate-General in the light of the available record and the law.
11. ' While dealing with the proposition involved in the instant matter I have come across a reported judgment of the Honourable Supreme Court in an identical case where the trial Judge convicted the accused under 5.304, Part II, Penal Code but High Court on revision by complainant altered the conviction from part II to Part I of section 304, Penal Code and increased the sentence on the ground that the trial Court committed mistake in convicting the accused under Part II of section 304, P.P.C. Against such sentence passed by High Court petition for leave was preferred in the Honourable Supreme Court which was converted into appeal and the same was accepted and order of High Court was set aside. The dictum of Honourable Supreme Court in the case i,e, Mushtaq Ahmed v. The State 1986 SCM R 1585 relevant to the proposition it was held:--- "Constitution of Pakistan (1973)- --Art. 185(3)---Penal Code (XLV of 1860), S.304-I/304-II---Criminal Procedure Code (V of 1898), S.435---Trial Judge convicting accused under S.304, Penal Code, and increasing sentence on ground that Trial Court committed a mistake in convicting accused under Part II of S.304, Part II, Penal Code, but High Court on revision by complainant altering conviction from Part II to Part I of section 304, P.P.C.---High Court, held, was not competent to alter sentence as such under its revisional jurisdiction---Convict already released from Jail on serving out his sentence awarded by trial Court Rearresting of accused to serve out a further period of imprisonment as a part of sentence awarded by High Court not desirable. Petition converted into appeal and appeal accepted and order of High Court set aside."
12. Being fortified on account of the above dictum of the Honourable Supreme Court, this Court is not competent to alter the sentence and to convict the private respondents for the offences for which they had been convicted by the learned trial Court; in the exercise of its revisional jurisdiction, therefore, the petition being incompetent in the context is dismissed.
13. Revision .