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Criminal Reference No. 182 of 1952 decided on 19th June, 1953. Case reported by the District Magistrate, Harara, Abbottabad.
S. 439‑Sentence of fine only‑Enhancement‑‑Whether could not be ordered after fine had been Paid‑Whether sentence of imprisonment could not be enhanced after it had been undergone.
If a person had been sentenced to fine only, when he should have been under the law‑ also sentenced to some imprisonment, and he has paid the fine, it will be absurd to say that the High Court has no power to add to the sentence of imprison ment, simply because there is no existing sentence, which can be enhanced by it. No doubt the Court of revision will be slow to interfere where the person convicted has been discharged from jail after serving the sentence, but then he can be sent back to jail, if the sentence passed was illegal, or was manifestly inadequate and ridiculously low.
Ghazanfar Ali Shah, Public Prosecutor for the State.
Ahmad Yar Khan, for the Accused.
‑Bahadur Khan, aged about 35 years, son of Azam Khan, a Pathan of Sikandarpur, has been convicted under section 4 of the Prohibition Act, and sentenced to pay a fine of Rs. 150 or in default to undergo three months rigorous imprisonment.
The allegation against him was that two seers of contraband charas without a license had been recovered from his posses sion.
The District Magistrate Hazara has forwarded the case on to this Court with the recommendation that the sentence awarded to him is manifestly inadequate, and defeats the ends of justice and should, therefore, be enhanced.
The learned Counsel appearing for the accused has challenged the conviction as bad in law. He has argued that the chat‑as was not recovered from the room inhabited by the accused, but had either been recovered from the courtyard of the house of the accused or from the room lying deserted and unoccupied. On this point I have no reason to disbelieve the statement of Said Ahmad Khan (P. W. 5), who alleged that he searched the house of the accused and it was from within the room occupied by him that the charas was recovered. Alam Din chankidar (P. W. 1) no doubt has in certain respects supported the accused, but then his statement is contradicted by the recovery memo, in which it is definitely mentioned that the charas was recovered from the room inhabited by the accused. I see no reason to interfere with the conviction, which is hereby upheld.
The imprisonment provided by section 4 of the Prohibition Act extends to two year's rigorous imprisonment, or to fine or to both. The sentence awarded by the Magistrate to the accused is certainly manifestly inadequate and defeats the ends of justice.
It is however, contended by the learned counsel for the accused that as Rs. 150 fine has already been paid, there is no existing sentence which can be enhanced under section 439 Cr. P. C.
A careful reading of the above section does not support the contention of the learned counsel for the accused at all. To interpret the section in the way in which the learned counsel wishes me to do would certainly lead to some very ridiculous and absurd consequences. Supposing, if a person has been sen tenced to fine only, when he should have been under the law also sentenced to some imprisonment, and he has paid the fine, it will be absurd to say that the High Court has no power to add to the sentence of imprisonment, simply because there is no existing sentence, which can be enhanced by it. No doubt the Court of revision will be slow to interfere where the person convicted has been discharged from jail after serving the sentence, but then he can be sent back to jail, if the sentence passed was illegal, or was manifestly inadequate and ridiculously low. The offences under the Prohibition Act are treated with extreme leniency, which should not be done at all. Originally the sentence provided under section 4 of the Prohibition Act was six months, which the legislature enhanced to two years rigorous imprisonment or fine or both, meaning thereby that the legislature wanted the Prohibition Act to be enforced both in letter and in spirit.
For the reasons given above I am constrained to accept the recommendation, and enhance the sentence, which I hereby do, and sentence Bahadur Khan to six months' rigorous imprisonment in addition to the sentence already awarded to him.
Orders announced.
A. H. Sentence enhanced.
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