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Criminal Appeal No. 14‑P of 1970, decided on 7th December 1973.

(On appeal against the judgment and order, dated 8‑4‑1966 passed by High Court, Peshawar, in Criminal Reference No. 52 of 1966).

--‑‑S. 439(2)‑Reference‑Enhancement of sentence‑Convict (appel lant) summoned to Court at time of hearing of reference but not re presented by counsel‑Record not indicative of Court having apprised appellant of nature of proceedings presumably conducted in English and of his right to oppose reference Acceptance by High Court of Sessions fudge's recommendation for enhancement of sentence being passed to convict‑appellant's prejudice without hearing him, held, not maintainable, in circumstances, and set aside.

Abdur Rahim, Advocate Supreme Court instructed by G. S. Gideon, Attorney Supreme Court for Appellant.

Burhanud Din, Advocate‑General, N.‑W. F. P., Peshawar instructed by Abdul Samad Khan, Advocate‑on‑Record for the State.

Date of hearing : 7th December 1973.

.‑Fazal Rahim appellant fired pistol shots at Fazal Muhammad respondent No. 2 and caused him grievous injury on the leg which eventually resulted in the amputation of his left foot He was convicted for the offence by a Magistrate under section 307, P. P. C. and sentence to undergo R. I. for two years.

2. Being dissatisfied with the quantum of the sentence awarded to the appellant‑respondent No. 2 moved the Sessions Judge for making a reference to the High Court to suitably enhance the sentence. In view of the weapon used and the injury caused by the appellant to respondent No. 2 the Sessions Judge, Mardan, accepted the prayer and made reference to the High Court for enhancement of the sentence. The appellant who was aged about 16 years was summoned to the Court at the hearing of the Reference but was not represented by a counsel. The record of the case does not show that the learned Judge apprised him of the nature of the proceedings which we presume were conducted in English and of his right not only to oppose the Reference but also to show ‑ cause against his conviction. The Advocate‑General who represented the State conceded that the sentence passed on the appellant was quite inadequate. Thereupon the recommendation made by the Sessions Judge was accepted and the sentence awarded to the appellant was enhanced by the learned Judge from two years R. I. to seven years' R. I.

3. Leave to appeal was granted to consider the effect of the omission to afford in opportunity to the appellant to show cause against enhancement as provided in section 439 (2) of the Code. The appellant should have been further told that not only he could oppose the Reference but also show cause against his conviction.

4. We have heard the learned counsel for the appellant and the learned Advocate‑General for the State. There is no escape from the conclusion that miscarriage of justice has taken place due to the irregularity in the hearing of the Reference by the learned Judge without affording the appellant a proper hearing. Section 439 (2) of the Code enjoins that no order will be passed in exercise of the revisional jurisdiction by the High Court to the prejudice of any person without hearing him. The facts stated above make out abundantly that the provisions of the subsection were not complied with. The order passed by the High Court cannot in the circumstances be maintained.

Ordinarily we would have allowed the appeal and remanded the case to the High Court for rehearing of the reference but as the occurrence took place on 11‑1‑1965 and the impugned order was passed by the High Court on 8‑4‑1966 it does not appear expedient to reopen the whole case at this late stage.

5. We accordingly accept the appeal and set aside the order of enhancement passed by the High Court. The appellant who was granted bail will now surrender and undergo the un-served portion of the sentence of two years passed on him by the Magistrate.

Appeal accepted.

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