This Criminal Revision filed by one Qamar is directed against the order of the learned Sessions Judge Rawalpindi, dated the 30th of April 1969, dismissing the petitioner's appeal against his conviction for an offence under section 379, P. P. C. Recorded by Muhammad Shah M. I. C.
Rawalpindi, with an award of one year's R. I. The impugned order was passed by the learned Sessions Judge under section 421, Cr. P. C. Dismissing the peti--tioner's appeal although the sentence of one year's R. I. Awarded to him by the learned trial Court was reduced to nine months R. I.
2. The main contention raised by the learned counsel for the petitioner which found favour with me at the time of the admission of this petition to a regular hearing was that while on the one hand the petitioner was allegedly caught almost red-handed and a purse containing a sum of Rs. 51, and a passport --size photo of Muhammad Yasin complainant we're recovered from his possession, the police had sought his custody vide application dated 15-9-1968 seeking extension of the remand order on the pretext that certain recoveries were to be made from the petitioner as also from two others, namely, Sultan and Muhammad Saeed. Having perused the record, I find that the contention is wholly misconceived. It appears that, when after having picked the pocket of Muhammad Yasin complainant-a shoemaker of Campbellpur District, who had visited Rawalpindi in order to purchase leather, the petitioner was trying to make good his escape, he was given a hot pursuit and was ultimately apprehended by Khan Amir H. C. With the help of Mir Zaman P. W. And two others. While in police custody in regard to the investigation of the instant case, it appears that he was also being interrogated in respect of another case under section 379, P. P. C. F. I. R. 219 dated 30-5-1968 of Police Station `D' Division Rawalpindi. 'The correct position, therefore, is that there is no dispute as to the recovery of purse containing Rs. 51 belonging to Muhammad Yasin complainant, from the possession of the petitioner and as such the application seeking extension of remand had nothing to do with the investigation of the instant case.
3. Another contention raised by the learned counsel for the petitioner is that Bashir Ahmad and Muhammad Shafi two of the witnesses of recovery were given up by the prosecution of whom the latter had appeared in defence falsifying the allegations of recovery. A perusal of the recovery memo. P.
1. Shows that the recovery was made by. Khan Amir H. C., P. W. 3 in the presence of Muhammad Yasin complainant, Mir Zaman P. W. 2 and the aforesaid two persons who did not enter the witness-box. As such, it can be seen that at least three witnesses who had been found to be disinterested by the Courts below had appeared in support of the allegations of recovery. The complainant who was a stranger to Rawalpindi had no motive actual or suggested to falsely implicate the petitioner, Likewise, Mir Zaman had no axe to grind to falsely implicate him. Although a suggestion was made to Khan Amir H. C. That he was inimical to the peti--tioner and as such had implicated him in a -trumped-up case yet the suggestion had no basis and was rightly discredited by the Courts below. In consequence, the offence was fully brought home to the petitioner and he was rightly convicted.
4. Toward, conclusion a legal contention has been raised by the learned counsel for the petitioner namely, that once an appellate Court comes to the conclusion that the question of sentence requires consideration, it must admit the appeal to a full hearing and issue notice to the State before giving a finding on this point and as such the course adopted by the learned Sessions Judge in dismissing the appeal under section. 421, Cr. P. C. While at the same time reducing the sentence from one year R. I. To that of nine months R. I. Was wholly unwarranted in law. On the face of it, the argument appears to be spacious and, in fact, King-Emperor v. Dahu Raul (AIR 1935 P C 89apparently lends some support to this view, but on a closer examination, the argument, loses all its force. No doubt, techni--cally speaking, it would have been appropriate for the learned Sessions Judge to have issued a notice to the State before reducing the petitioner's sentence, yet it may be observed that the pre--judice if at all, was caused to the State and not to the petitioner. The State has not made any grievance of this irregularity and as such the legality .Of an order which was passed in favour of the petitioner and remained unchallenged cannot be questioned by the petitioner at this stage on this technical ground in King-Emperor v. Dahu Raul the High. Court had reduced the sentence of the petitioners in a summary order without issuing notice to, the Crown and the Crown feeling aggrieved by the procedure adopted by the High Court filed an appeal before the Privy Council which was allowed. It would be absurd to conceive that a convict whose sentience is reduced may be deemed to have felt aggrieved even by the reduction of sentence and should challenge the same.
5. Lastly, the learned counsel has contended that .The petitioner is a first offender and as such a sentence of nine months would be rather excessive. While maintaining the conviction, reduce the sentence from 9 months to six months R. I. The Revision Petition is partly accepted to this extent.