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Criminal Reference No. 221 of 1953, decided on 31st March, 1954.
S. 439‑Sentence‑Enhancement‑‑Conditions.
Sentences are enhanced only in cases where the failure to enhance the sentence would lead to a serious miscarriage of justice. The mere fact that the High Court, had it been trying the case, might have imposed a higher sentence is not sufficient reason for enhancement.
The sentence though inadequate should not be enhanced unless it is grossly inadequate.
H. T. Raymond, for Crown.
Ali Ahmad Fazeel for Accused.
‑This is a reference by a learned Judge of this Court, Rahim Bakhsh J. for enhancing the sentence passed on the appellant Ahmed Khan, for an offence under section 307 P. P. C., who was sentenced to 21 years R. I., and a fine of Rs. 100 or in default to suffer R. I. for six months by the learned City Magistrate Karachi.
The learned Magistrate while convicting the appellant observed
"This type of offence has been on the increase in Karachi lately and if deterrent punishments are not given then there is quite a danger for this type of crime to increase further. On the other hand, the accused is a young man, but again it is the young man who is easily inflamed and commits such offences."
This observation came to the notice of the learned judge, Rahim Bakhsh J., on appeal being filed from jail by Ahmed Khan and the learned judge in his reference stated:
"Having said all this, the learned Magistrate has considered two years and a half and a fine of Rs. 100 as an adequate sentence. To my mind the sentence is anything but adequate. Cases of stabbing have now assumed an alarming proportion and they call for heavy sentences".
Mr. Ali Ahmad Fazil for the pauper appellant while showing cause for the enhancement of sentence has not challenged the conviction of the appellant. But he states that the sentence though inadequate is not so grossly inadequate as to call for the revisional powers of this Court for enhance ment of the sentence in this case. The medical evidence showed that the injured had an oblique stab wound upper lateral part of the left iliac fossa 1 x 1" deep to the abdominal cavity and omentum was protruding out, This injury was dangerous to life in the sense that if he had not been attended and operated upon, he would have died. The appellant is a young man and the origin of the quarrel was trifling over the demand of a cigarette or over the quarrel of a kerchief before. The sentences are enhanced only in cases where the failure to enhance the sentence would lead to a serious miscarriage of justice. The mere fact that the High Court, had it been trying the case, might have imposed a higher sentence is not sufficient reason for enhancement. Even if this Court might have originally awarded a heavier punishment enhanced sentence cannot be awarded. In A I R 1932 Lah. 199, the accused, a jail Superintendent, on being attacked with shoe by a prisoner, thrust wooden substance in his rectum resulting in prisoner's death was convicted under section 304‑II and sentenced to R. I. for one year but still the sentence was held not inadequate and was not enhanced.
We are of opinion that the sentence in this case though inadequate is not so grossly inadequate as to ‑call for our interference. The appellant has nearly served two years imprisonment in the jail. This is an additional reason for not enhancing the sentence.
We accordingly return the reference.
A. H. Sentence not enhanced.
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