1. ' The appellant, through instant criminal revision has impugned the orders, dated 24-4-1999 of learned Additional Sessions Judge, Gambat in Criminal Appeal No,3 of 1998 whereby the judgment of conviction, dated 20-7-1998 recorded by the learned Civil Judge and F.C.M.II, Gambat in Criminal Case No,9 of 1996 was not only maintained but the sentence of one year's R.I. Awarded by the learned trial Court was enhanced to 3 years' R.I. For an offence under sections 392 and 452, P.P.C.
2. ' The appellant, produced in custody and the learned Additional Advocate-General were heard, the record was perused.
3. ' The learned Appellate Court, after discussing the appeal on merits of the case arrived at the following conclusion: "In view of the above discussion and circumstances of the case. I enhance the punishment from one year to three years in each count The sentence shall run concurrently and the appellant is given benefit of section 382-B, Cr.P.C."
4. ' For the conviction recorded by the First Class Magistrate, appeal lies before the Court of Session under section 408, Cr.P.C. Powers of Appellate Court in case of conviction are regulated under section 423(1)(b), Cr.P.C. Which provides for three eventualities and reads as under:-- "423. Powers of Appellate Court in disposing of appeal.--- (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, 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 reserve each order and direct that further inquiry be made, or that the accused be retired or (sent for trial to the Court of Session or the High Court) as the case may be or find him guilty and pass sentence on him according to law.
(b) in an appeal from a conviction (1) reverse the finding and sentence, and acquit or discharge the accused or order him to be retired by a Court of competent jurisdiction subordinate to such Appellate Court or (sent) 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."
5. ' From the bare perusal of the above-quoted provision it is clear that there is clog in the later part of the above-referred provision on the power of Sessions Court to enhance sentence in exercise of its appellate jurisdiction; but after the addition of section 439-A by Law Reforms Ordinance, 1972, the Sessions Judge has been clothed with jurisdiction which earlier was the domain of the High Court; in exercise of revisional powers the Sessions Judge and Additional Sessions Judge exercise all the powers and jurisdiction exercisable by the High Court under section 439, Cr.P.C. Including the jurisdiction to enhance the sentence, such exercise is but controlled and regulated by subsection (6)(2)(c) to section 439, Cr.P.C.
6. ' The order of conviction and so also enhancement was challenged through instant revision. As has been noted above, the Sessions Judge in exercise of its appellate jurisdiction could not enhance the sentence. For a moment, if it is considered that in suo motu exercise of revisional jurisdiction the Sessions Judge had enhanced the sentence, then by virtue of ousting clause (b) to subsection (4), to section 439, Cr.P.C. This Court is precluded to exercise revisional jurisdiction to adjudge the revisional orders passed by the learned Sessions Judge (for reference see Muhammad Akhtar v.
7. State 1993 M LD 370). This does not mean that this Court is bereft of its authority to remedy a wrong, where there is a wrong there is a remedy. This Court in appropriate cases in order to suppress the mischief and to secure the ends of justice in exercise of its inherent powers can make such orders as may be necessary to set right a wrong. This view finds support from PLD 1992 SC 406, Munawar Ali Zaidi v. Qaisar Jehan 1997 PSC (Cr1.) 94(a), Amir Khan v. State 1982 PCr.LJ 436, Muhammad Akhtar v. State 1993 M LD 370 and Quresh Ali v. State PLD 1993 Kar.
8. 424.
9. ' In this view of the matter this revision is being treated and disposed of as proceedings under section 561-A, Cr.P.C., it is to be treated and registered accordingly.
10. ' On merits the appellant has no case, it is only the propriety of the orders of the learned Sessions Judge to enhance the sentence, that is being examined by this Court. It is regretted that Law Officers of this Court did not render proper assistance.
11. ' It is to be noted that the State did not initiate any proceedings for the enhancement of the sentence. The learned Sessions Judge, on appeal by the convict had enhanced the sentence from one year to three years as is reflected from operative part of the order reproduced in para. No,2 (supra), such enhancement, in sentence apparently was done in exercise of revisional jurisdiction.
12. ' No doubt jurisdiction to enhance sentence under section 439, Cr.P.C. By virtue of section 439-A, Cr.P.C. Is conferred into the Sessions and Additional Sessions Judges but such authority is to be exercised in accordance with law. It would be advantageous to reproduce relevant provisions of section 439, Cr.P.C. Which runs as follows:-- "439. High Court's powers of revision.--- (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 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.
(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 show cause against his conviction."
13. From the bare perusal of the above-cited provision it is clear that the power to enhance sentence as provided under subsection (1) is circumscribed and regulated by subsections (2) and (6)
14. (supra), Court on appraisal of material placed before it comes to a conclusion that sentence awarded by the trial Court is not adequate to punish the offender, then before enhancing the sentence or passing any order prejudicial to the accused, it is incumbent upon the Court to issue show cause to the appellant/convict, as to why his sentence should not be enhanced and in showing cause by virtue of subsection (6) (supra), he earns a right to show cause against the conviction as well.
15. ' Since the impugned order was silent on this aspect of the matter, R&P was called, same was perused and it was found that no such exercise was carried out. It is settled law that when law requires a thing to be done in particular manner it is to be done in that manner. Even accused persons are entitled to be tried and treated in accordance with law as enjoined by Article 4 of the Constitution merely presence of accused at the time of hearing of appeal is not the substantial compliance of the mandatory requirement of showing cause against the enhancement which being condition precedent, before such powers could be exercised. Any departure from the mandatory requirement of law would render the exercise of enhancement of sentence in futility same cannot be sustained. In a recent case reported as Hassan-urRehman v. Haleem Shah 1998 SCMR 5E9 Honourable Supreme Court struck down an order found prejudicial to accused passed by High Court in exercise of its revisional jurisdiction without any notice as required under subsection (2) of section 439, Cr.P.C. And matter was remanded for trial afresh after due opportunity of hearing to the accused (see also Sher Bahadur v. State 1992 M LD 42).
16. In the instant case, the accused is behind bars since over 18 months, if benefit of section 382-B, Cr.P.C. As extended by the Courts below is also taken into consideration then he has substantially undergone the sentence, no purpose would be served to remand the matter for decision afresh.
17. The Sessions Judge however, is expected to be more careful in future, while passing any order, to the prejudice of the accused, to issue show-cause notice as required under section 439(2) and (6), Cr.P.C.
18. ' For the aforesaid reasons by short order, dated 28-2-2000 the applicant was ordered to be released forthwith unless, required in any other case.