1. ' MALIK MUHAMMAD ASL AM KHAN, J.-Dilawar Khan appellant, whose conviction and sentence of imprisonment till the rising of the Court and a fine of Rs, 500 awarded under section 324, A. P. C. By the A. D. M., Mirpur was enhanced by the High Court to the sentence of rigorous imprisonment of one year and a line of Re. 1,000, has filed an appeal before this Court challenging the judgment of the High Court by which his sentence was so enhanced.
2. As under the Azad Jamma and Kashmir Interim Constitution Mt, 1974 (hereinafter called the Constitution Act) no direct appeal lies to this Court, the appeal was treated as petition for kayo to appeal and accepted to consider the following points:
(1) Could the High Court enhance the sentence of imprisonment which had already been suffered by the appellant? {{BLUR PAGE}}
(2) Could the Courts reit upon the provocation SYLIMMI for the purpose of maineetintes etae t alder section 324,, A. P. C. When thOsg "try WittliAla were not robed von for the offence under section 3071 32ape, A. P. C
(3) The adequacy of the sentemete During thehewn' s of the appeal, It appeared prima fade, that the trial Coen hod eommitted a patent error by convicting the appellant under eestion 324 A P. C. In spite of the ha that the prosecution evidence, antedate feet a the doctor, showed that the ittillfleS on the person of Nkttoor and Muhammad Kbut were of Smiond hater& In view of this feet we lamed nodes sua metu to the appellant In nerds, of the powers vested in the Supine Court under section 42-A(1) of the Interim Conetitution Act, 1974 to show cause as to why he should not be convittefl and scoot 326, A. P. C. This notice way by the appellant as well as his waned and thus arguments have been add:plied on the points for which leave to appeal was panted and on the =dens 3rsissued by us.
2. Met facts neoessasy for the disposal of this appal may be stated as under: Some eleven years hack Mst. Mastoor %gum, P. W, the &tighter of Mohammad Khan P. W., was mavied to appellant Meteor Khma. Assad* to the prosesution vontion, Dilawsw than deadoped illicit Mathias with hie aunt, Re4 Bevan, wife, of Mohammad Taman abscondins &ceased.
3. Because of this developmene Met. Mastoce Begam wes turned out of he: bus 's house after nine months and came to live with her father Muhammad Khan where she gave birth to a son conceived durthg the wedlock with Diatom Khan.
4. Thereaftee Dittmar K.Han contrasted a second marriage with Mot. Taj Begum, the daughter of Met.
5. Raj Begone. This naturally earouged the relations of the partite. These ea/amp' relations watt worsened when Dilawar Khan wanted to divorce Mae Mastoor Begun) to which afet. Mastoor Brawn and her Sather Mohammad Khon were not terettble on the terms of Mayer than. The matters cams to ahead when 13/14 days before the vocueence there was a quarrel between Mae.
6. Mastoor - tr, Ditawar Khan and his second wife Mae TO &gum when the soot Wawa Khan strayed Into the mop- of Mohammad Khan. On this omasion Mat. Mastoor Begun received some bates at the hands of .War Khan. On IS-11-1970. White was a month of Raman, at Seiteratulki, Mat. Mastoor Bespent had sone to the nearby house of her ter, Mat. Hlansoor Beaum, to k g some tea leaves for * Shine sod it Khan P. W. (the uncle of Dittmar Khan and brother Mohammad Khan) alemswith Mohammad Ayub P. W. (The son of Manomor Basun Ltd stman to the atarby well to fetch water. The prosecution story goes he sloe that at the well at Seheritwaile, Dilawar Khan appoint held out Chem to Mohammad Ayub Khan accueing him that he was hatpins Mat. titio oat However, Rung than dissuaded DilaWitt Khan from heelementins his threats. Thereafter Moimmmad Ayub Khan came to the house of Mohammad Khan his maternal gramitfather, and apprised him bout the threats held out by Daiwa Khan. Thereepon Mohammad Khan came out in the lane AM asked Dilawar Khan, whose house is adjacent to that of Mohammad Khan, as to why he had been threats to Ayub Khan. This seems to have infuriated the appellant ett etelate out in the lane armed with a hatchet. In the meanwhile, Mat. !Vitt? Ins fettrains so Mobwarawi Khmer ham foul the hous4 1 renal by, Mew Khao trliatedtwo hatehet blow waith the %hare the penoe ce Met MACOOf Mohammad Khan while wying to rcoteet Met Meetow Bad ;dm fectivA throe incised wooed; grith the shins aide of tie CU et the bid of Weweie Khan and one ir4nry At the hand of thecoading accursed, Mohammed Zatetat Khan. T kg-3mo 6 witettoNtby Rgag otr, Mt:hat:ma:A fr,y-t0 &Ian and other motmtion 'Macaw.* who have fVit,1 mpirgDoted tOc atiogle: ioutiootti proeeention vattion.
7. Both Mg. Matitoot &gum end Mobamanad Khan we neatened tty Dr. Kijev-in.-Rahimatt who found the the mum ge. Mutonr gum:
(I) Ono tacked wooid r king, CICtzent chap*, Pifiche' ;Ty: tke of left 4bow joint. There olidcat fracture of iowez rea4 the left appe; ettc, ) 'incited wound &in third of ieft y..Iddle finer.
8. MA vela ittjurite ta,4 o of the 13toctot tamed by oluclp edged weepota htte to are end Wary No, I iwaa greviwz 4440, coniimied by X-Ray fry 1..3Z3 0=.0.* wenn G -ii,,,bf,atteed Ithe medicia nemint4ioa reviceind the rolicwingt
(I) One indeed woend 3' ee r bone eiroep on the diroux of w.',.% ort wood azd thifd roar anamel boom Una late V,stiev dinicaNy fractategl.
(2) One imiend wound 3' 04 kto eye,:
(3) One kneiacit wound If' r as eLla
(4) One infzieed wound 2' ,-is' cg rightp'tAinting finger,. erlti trbOt, ItAjDfirf; wtge foot to have been weggoa, 'like apt tm,-, era i4itiFF No, 1 wee 4taglotia by R;4y oiro k. `3t4._
4. At the Mari of the argtanietee wh.En the temappellant wanted to client Asa tan proaccodoe evidence, e Wrsri rSit)rod br the Isamd Advocate.Gceue that et renal ible to renma the *tole 41400 by esaminini the preeenution and Out the aFFuratate had to be reettioted e.'gy to the te on which toemiEett,on for !At*, trF 90 SrvIts,4 %Aid tby eilitacarecitt It wee nahtly port out by. The :zeroed gtounces k31 t het when 4 1:401Tor.n.Lre 90tirl for Wei enhanotnient of the mote, a the apinitant, 3tiv him a fresh rgnht to defend Wowed by el coarmion and bring, ender dienioci'ou he whole etidttguee rt t. 4hgr'' one.M xuthority 'aii cited 1".1 .071141 vide for or ag 1Fopo0i,o7- timwomr. Xc tine CIO k) 19:6 SC (lad.
9. Nctem the e I a Clore tuned 3how,cauro nc...4= to the scented eutanontnent of Ms acme= in a reggirion petition 604 by the the Gobveitameet, Supreme Court held the the Itigh Court wee 'amons ntefasiti I the/ facieraed to fefeod het ,eheltiongiag tie re , atteb, W(T ire g of the kri4r7o that he a notice to show C4thlt for the eahencercent of eenteneoi _ Wigged to the aocceen, be it ow nowg the Court or on the move of a pttiMN Ad seemed gets a fresh right to bring under discussion the cadre Metier, =hi choltenffe his r.Toariction on any available gonad. We there-, fotis,, overrule thie objection sad allow the learned counsel for the appellant `to lbriet ender est Mination the ole cane. . '',... 'The 'teamed comet for the .Appeltent him taken is through the vhikmee 7hdttetd by it,,,h, prosrhution htii( has faiied to, bring out any ruatdirie touttadictioh r flaw thorais which could paregoric us to differ with thef findinp Of ft40 by t trial Court a r ri the High Court. We had am V011n4C1 of reeord to :Attain the conclusion that Msh Mastoor Begum and ..-Shlio pt' injury No, 2 oa the forehead of Muhammad Fluta which was inflicted c hy ttlobarrginsd Zeman Khan absconding second. We ourselves sigramoned Mad Khan and !Far, hiestoOr Baguio to find the extent of incapacit hif ece intared puts tad roved that although the invriest had been hesle4 the left litt:TV.
10. 4.V11 If MAC. Itiaatoor Radom sad the lojarcd fingera of the ltgft hand of Motitimmed Khan land hen permanently disabled for normal %Ightioalhg, in view. Of 004 Chg. We cahoot Wing OttrktiVal to agree with t, . Igtee of the learned Goorlsel for the itppellant that the promotion COLIMA U 'doubtful *Milling the appellant to the bergefft of doubt. As Altudg ghhhdr, the prow wine has proved its can to the hilt and the Courts; btioh, have rightly arrived at the conclusion about the infliction of the iniuriei ciz Iltri person of libt Ztdoistoor llegunt and Mobigniztiid Khan by Dilawat KlOtil appellant and Niriaitaincoad nor ft 51:154,13 %hheandios accutiad. . i. After havima &hit with the. Esial*, Pais N. I -brings under discussion the powers of the High Court to enharie.e the setatanhe of - impriaohageot which. Bad hihaady been 2.2dergone th twathed ivy the ik< D. M. There lc no ile;.Kt this( the A< D- M. Had wrivifSeci the appetiatit under section 324 A< P. C. Gad .Nowed him till the riming of the Court end a Bac of Re., 500 and this one day rgiatenee had been ealered by theappele' et and the nor" paid. The prehihs iiucatiort is could the Idigh Cohrs iil tlfaiVitot of eta powers under hectioa 43'4.),,- Cr, lt",h C. Enhance the meteor:Fe to .That of one yeaer Rigorous imprisonment need a oof R. LOCO. The AnTzed. Counsel for the appelleat in a lake ;.?:rV may hes Wegtendelit that ;glace an gtcam4ei per.Zan .Hm already , aufferr ,...h.Unihisaciat, nothini lc- 'tett to chhatice the 6::hgeThx.Hhhi', n'i eneh, the Hi.
11. Court bud ho . Power to titinaCt the somas th o': his hticot. Tki?; iCi.51.11t AdWOCRAC4eirtf4i . Htt, oorithoverted this stand by referrias to section 439,, C. F' C.'shad cooterided t.;ent it is well within the powers of the High COU:1 I UCtier thil If*Iiirl tO VPIAIM14 ii;..4 - 4Ctteefro, r:,14Q the one that has Brea aii'esidy suircesh4, .provitIod tiara km- cov.Ot peaeone tot' 40141 the ' chel0 and 4 *110*.-C4Wa AtritiCC Mr been ii.VCra to the liCZLMds.
12. 7\x'4' ti4vc c:,?,:-:bacvil Itit,t:, hr3on'hrotrA ;hi 0110 pi7V, attd aro of the viva- , VA.?, ft $h COUTit w74 :t-k,4 wi..17.4,13 i', poalere...Mr.i PuV.Fied n ?Sal' I mien tbifi Mee, ,- taance f'bIltstas4 inGleted by the A. Y.), M. We may setae in Ora rervet tl . A. r K ii-A0: ?At: ;.'3,9, where the ithhanchl woh coht4(..h.Fhfi ender sectiou C.2, e. C..i ; ti., see mcguate FEErcgom in7civiInocincat giu)(1. The. Aioh Court eorichtering ' ;a1C fle7amapr. Ih.A4c'thate,_ enhancvd it tO 5 :;hrare. Rigorous.
13. Unpritioisokhot 1 In this ruling, reliance was also pleeed on A 1 R 1920 'i.,th. 213 (which is refereed by the !Earned Adrectee,General), A 1 ^ 1926 Roca, 25$ and A 1 R 1926 Late 961. In 1926 Boathey, the sentence awarded had Already been served out by the accused and yet when it was found inadequate additional sentence of impritosinent was awed in a Cate under ecetioti 363,, P. C. b the same lice are P L, D 1967 Lib 357 and 1971 SC M, it le and a. In ? L IrO 1e67 L311. The sentence of tae} yeari rigormw implems. 014311t swatted under section 377, P. C. Wit considered 41 inedeeaste and enhanced to four years' rigorous imprisonment in the eireumstances of that care. 1971 SCMR Is somewhat sicuilat to the case before Pe. 1n this clue, the exceed Wee tenteneed by the trial Court, under sectioe 324, P. C. Tai the rising of the Court (as in the Cite before es) Lad a doe of no. Xi. On ferctemoo, the Hieh Court enhaneed the *ate= to .3 preee rigere, imprtionmeot. The order of the High Court wee chattensed in rho &apse. Court on the basis that the High Court had no power to enhance SOLIOWe which had tiresdy teen undergone. The saltation wee seven(' held that the sigh Cow* was fully empowered to do to if it feceimel a =tenet, insdequato i:n the circumstances of the GOA. We, ibAredfe, 4, that who the High Cour. It exereiiiing its revisions! Power, under motion 44, Cr, P. C. There is rotor ii to hqr it from enhancing the rater aOil Vera if i; hie rtre5 already initfered provided K. Cornea to the eeechrece than the 1,01Mag41 arsenal 05i the tower Conti it grossly istalecratti o-.7 ::..Te,-71 on Oirlt,51; 7C0(;!Ii. &DJ further that the }fish Coutt serves due ehow-r4oite ?
14. Torte," on the accund da required under law, In v of this !Eget p4-:.i,.If.i,5-ri, we find no tom A the plea of the !Tuned eunneet for the appegaat it at to Fliett Court eteri;d, not subtitle: the sentence which bad already' Net'it under, &ON', tfi, the appgiant. We have also examined in thte oate the 7.e.Afie;t4 fivers try the atikt: Court in awarding lesser lentenoa no ;:nton% Ti-.En 1 0114 if sselvere erase= is inniQted, the re:46:m of the patt.Ie '4ill 1,* Agit= eteRirsed. To say the teed.
15. Th.-ete ire absolutely dialer At4f10611 nn ehouW nct Nava weighed MO the ;VA Court foe passing such as redieutous sentence, ckh ic so a fantod whirs) we Ond that no love wat lost between the eseties.
16. Then at no doubt that the Coutte have vide et, retioa Voithva t't, If the penst section limier which an sect: id is found giant,' to edge aces r4 tre thliscitsus of te.1047 111 gat%.'-13-ifCea,t' %ith el, 41C;;;UI;;;ADI (Mel Van. No hard end fast mite cea be laid down in this reorct Fut It is we to remember that punishment scv'rds-i should neither e too berth or too. Soft end oiu of proportion to the grittily or otherwise of the. & otfmot lin, orunr: Eg Reiy to omate hatred ger end Ole latter oicke 0115citticy of, the admirii.:4.70'ion og justioe. Even handed ituttee registre ihist pcialbrace ii,botild fee cealreteututem with the emettnite. 0 Eleaticeille Of ele of renet and thedraninstariona of the ma, 7, Another vein% itihtott t:hough not raised, i-pkiis fr.* ovvv.d,cri:iiim, e r, wheitft tt4z: +r Flt i. Kl.tW irmirittott' IQ gla*Ace :;:!.:; oft.,:t11,;a .y.To WiN, Pe": thk; VF8 116,14; C41:1112;eitt;f4 OtNtiall 43440 I a tut, E30-diat Cemetitatieu all es eeeneSed, 04z.A40,--The Suptalt Cmf.7, al'Kaci :,,t'etr.', Cr:t-nr if., lerse ,nte,1% ,T7,;:rectioc, oreeee or Owries te !See Ss ..3.?4'0.M9::,-;.If kf de:.,es comet:tee izetke ie ell' rase ee- meSter efee,t(ett !Rtef:_ee 'e eleitadtng ire el,- et ft:4 zhc putpeee of werizz qa- f.;:trzad.0,..Le of :lily 74R-dayi qr 0,74 ;22cowr..t-1, or riste.4mtiou of sir/ doimisent" is similar to Article 187(1) of the Pakistan Constitution.
17. The powers of the Supreme Court under tale section. 'low doing comp. ,ttistios in any -ease or mattes pending before. It", it appszta tot are enough to eiothes this Court with the powers to enhance the sentence awn by the Lower Courts if it finds that it is grossly inadequate RIUS will C serve the en& . Of 'deice. We are ?Waded for this- 'kW Of "cure by t views of the &nye= Coat of Pakistan contained in P o 1964h C 205,1 and P L 93 1970 8 C 447, W aro. TheTsfore4 of the opinion that th Supremo Court in exercise - of he powers under - section 42,A(1) of the Interim Constitution At can enhance, even NW mood, the sentence passed by the lower Courts if it finds thet.Entenc... , grotsequzly latdeonste azr. Agalost the ends of justice. Of count, the Sopnicie Court too ?Sae to give due show-cause notice to the tvoa.!:46 before embarking on such as worse Because ordinarily, The Supreme Coon will not interfere the 4401,160,.. of the Courts below in awarding the grant um and kind 4.1 sentence by them( bat where It finds that there her been cross tans ace of /twice or. The seutenCe awarded is ridiculously low making the administrvtir z. Daftiatieeil a mere mockery it will certainly take upon Itself to CrliniD0 ape, reasons for awarding r.Ezteses by the lower Courts. If such reasons Ore found cit/pahly fitznity or faxelifal, it will haYr to step in and enhance the, winterize "for ding eamplete justice. d. Afree hearing the learned. Counsel for the parties end naminins the word, we have come to the r...anclUSIOO. That there we no justiciable, reason for not convieting the accused uncles tectiou 326, A. P. C As already stated, the accused was found to have indicted incited wonods cis th person of Mo. Marlow: Begun, his discarded wife. And his father4s-is Mohasimad Khan.. He has inflicted no lees than two woos& with the char edge of the ale oe Met. Martoor Wpm and three wonzde Cra iyinaanato Khan., litidtw,y No, /. .Qn tin person of Ma, Mestoor Sear wears deltseoe with ,-A4,. At force that it had fractured her lower end 4,-If the lei appes szr- iscapaeitstiog rte not qkie, injuty No,. 1 on the person Mohamed Khan has fractured the 2nd and 3rd znetattarpal bones of left hani iricnpeaitatine their scrotal use. Th.a: when considered i...Gaiisst the hacitground that the mated had Men ititzeking gindwcing: 34;a Niattoor Degutri 4/Y ea previously on the Cations protvg, l'endt, added ?40.,. To the ;amity of the 4S:rice end more skl again-et she backrrowad of hein2 turned. On; by the appellant to motives no way e tela4e.4 48 itODCAM161c.
18. In passing we are-conetrained to obsme that the -prosmit$on i:igency =1,-tvp5 ao have Men Jetraire in Sat -tOdigin ageing the paleehiy deision at the A,: M, via- r- is. Gr.4, orcric.On a the appal:ant 17,t4ftt re tiara 324. A. P. C. ...44f,40, urido oectiOO .326, A. Po a sol the 7se4,41 motence. awaiOd oval. Oxides gcetion. -324, P. .C. The . 0SCORI Zeta ofthis caw. -
10. As relerdz the Ver-Oled plOint MeV,: gay Ogi t tothing oo the mord te., Chg. The trisli Court L'rj17 a:25rn, the prourtMtiela WV,4,010 fOt OCDPYiktiACt; tti% Anmeizat Wilda feCgiatt 1.26, rt.4 C. We iid thrzt proson.t;-71,5 Yrtt,',';'ves were fay t,4tki 414 trill Couzf 9,(1-4ch verrion Bout 1,;adge fon in mor co;iyie,ting and. Satiteiniog Silo appelltr.M triV(,ter Px- kion 324 A. P. C. Insteadref .Order inetiao .1.26,. A, P. Thifd "'Jim kisa f7t even, bcirm of.-glergrandithly c'twf.,A.Tcsd f,hr out cei,fraf.Ri or the appellant b.. Old, miiripc-ire;,e,',tor4 of litw %ther tb I dz;thehe'st evideT,fxby u rR Cr!.c,:u th trot.). e, reject the a9pest 4ind hold Cue eppeiltant.Sconsod guilty Wm sration 326, A. P. L. We have given deep conAderaeon about the VeratEEI of sauterne to be passed bat in view of the fact.
19. That Pits case has dragged on bora 1970, we eeillert3e the appellant cud ti.) two years' rigorous ruprisonment sad fine of Rso 2,0t4a, In default of psyrient of the AM, the appellent.Ccused shall sneer; further imptivenment of three months. Out of tic tun ?Milted, Rs, 1,5a will be given to Ma, Mastoor Begum and Mohammad Khan in equal shared m Compensation for the injuriss suffered said the ic4tpwity ingaled on than... The ball is r,,siticetled and the appellant t%nutiel stitai =Trend= bimaeg for completing the sentence a 4arded ly this Court. He bt remanded to Mirpur Jail for serving his sentence.
3. A, N.
20. COMIDexiMai.