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Criminal Reference No. 63 of 1967, decided on 2nd April 1968.

S.379‑--Theft--‑Sentence ---Trial Court has discretion to award any sentence up to maximum permissible limit‑Magistrate, on grounds that accused (a) was a young man (b) way not a previous convict; and (c) had pleaded guilty to charge, awarding a sentence of fine of Rs 100.00 only‑--- Such sentence may not be considered sufficient but that cannot by itself be a ground to question Magistrate's discretion.

S. 438‑--Sentence ----Enhancement‑Trial ending on 1‑1‑67 and reference for enhance ment of sentence made on h9‑9‑67‑Accused already undergone considerable mental torture and agony‑--Enhancement of sentence, held, uncalled for in circumstances of case.

Muhammad Ibrahim Memon for A. A. G. for the State.

Nemo for Respondent.

Date of hearing: 2nd Aril 1968.

This reference was made on 22‑9‑1967 by the learned Sessions Judge, Dadu in the following circumstances.

1. On 18‑1‑1967, the respondent was arrested along with co‑accused Khairo for the theft of a cow of complainant Ghulam Qadir Shah in Dell Gabar, Taluka Khairpur Nathan Shah, District Dadu. The present respondent was alleged to have absconded, but his co‑accused Khairo was challaned in the Court of Resident Magistrate, Dadu to stand trial under section 379, P. P. C. On 10‑11‑1966, Khairo was acquitted by the learned Magistrate under section 258, Cr. P. C.

2. On 18‑1‑1967, the respondent in this case was arrested and was challaned under section 379, P. P. C. before the same Court to stand trial for the offence of theft of the cow of complainant Ghulam Quadir Shah. The respondent pleaded guilty to the charge, whereafter the learned Magistrate sentenced him on 1‑2‑1967 to pay a fine of Rs. 100 or in default to suffer R. I. for one month. It may be pointed out that the maximum sentence prescribed for an offence under section 379, P. P. C. is three years' R. I. with fine of both.

3. The learned Sessions Judge has stated in his reference that the respondent was apprehended red‑handed, whereafter he ran away from the custody of P. Ws. who were taking him to the Police Station. He further mentioned that the offence of cattle lifting required a deterent sentence, and the impugned sentence of Rs. 100 or in default R. I. for one month was inadequate. The learned trial Magistrate awarded the impugned sentence to the respondent under section 379, P. P. C. which gave him discretion to award any sentence up to the maximum permissible limit under that section. The learned Magistrate in exercise of his discretion did not consider to award to the respondent any more sentence than what he gave him, and support gave reasons. In giving that sentence, he stated that the respondent was a young man, was not a previous convict and had pleaded guilty to the charge. These reasons appeared to him to be sufficient in the context of these facts and it cannot be said that the learned trial Court had no material on the basis of which it exercised its discretion. It may be that the material, upon which the learned trial Magistrate awarded the impugned sentence may not be considered sufficient by the appellate Court, but that by itself is no ground to question his discretion.

4. Mr. Muhammad Ibrahim Memon, the learned counsel appearing for the State did not support the reference. He was also of the view that the learned Magistrate had sufficient material before him to exercise the discretion in awarding the impugned sentence, and although the appellate Court may not agree with the sufficiency of that material, that by itself was no ground to question his discretion. He further stated that the respondent was arrested on 18‑1‑1967, whereafter he was produced in the Court of learned Magistrate to answer the charge under section 379, P. P. C. and that the trial ended on 1-2‑1967 on the pica of guilt of the respondent. The reference in question was made to this Court on the 29th of September 1967, and considering that the respondent has already undergone considerable mental torture and agony, it would not be just and proper to enhance the sentence at this stage, even if this Court was of the view that the impugned sentence was inadequate. I agree with the learned counsel for the State that, in the peculiar circumstances of the ease, as stated hereinbefore, the enhancement of sentence of the respondent at this stage is uncalled for.

5. For all these reasons this reference is rejected.

Reference rejected.

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