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Revision No. 302 of 1953, decided on 15th September 1953.

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-----S. 325‑Sentence‑‑Whether fine only a legal sentence‑High Court‑Whether can alter sentence in exercise of its revisional jurisdiction.

Sentence under section 325 of the Pakistan Penal Code, ought to involve a sentence, however short, of imprisonment. A sentence of fine only on an accused convicted under section 325, P. P, C. cannot be maintained.

It is the duty of the High Court in the exercise of its criminal revisional jurisdiction to see that a legal sentence is imposed.

Nemo for Complainant Petitioner.

Ali Amjad Khan for Accused Opposite‑Party.

‑In this case a Rule was issued on the District Magistrate of Tippera at the instance of one Wali Bhuiya, complainant. Wali Bhuiya instituted a case against five persons, Huran Ali. Nazir, Ahizuddin, Mafizuddin and Hafizuddin, in respect of alleged offences under sections 323 and 325 of the Pakistan Penal Code. The case was tried by Mr. G. F. Rahman, Magistrate of the 2nd Class, Brahmanbaria, and ended in the conviction of the accused persons on the 25th October 1952. Ahizuddin was found guilty under section 325 of the Pakistan Penal Code and was sentenced to rigorous imprisonment for four months. His co‑accused were found guilty under section 323 of the Penal Code and were fined Rs. 50 each, in default to suffer rigorous imprisonment for one month. They appealed to the Additional District Magistrate of Tippera and their appeal was heard by Mr. A. Ahmed and was disposed of on the. 7th April 1953. The appeal was dismissed, the sentences on his co‑accused were maintained while the sentence on Ahizuddin under section 325 of the Penal Code was reduced from one of rigorous im prisonment for four months to a fine of Rs. 100 or' in default to rigorous imprisonment for two months.

Wali Bhuiya approached this Court and obtained the present Rule on the ground that the sentence passed by the learned Additional District Magistrate was in violation of the provisions of section 325 of the Penal Code which requires that a person convicted under that section shall be punished with imprisonment of either description for a term which may extend to seven years, and he shall also be liable to fine.

Mr. Ali Amjad Khan relies on the case of Khairuddin and others v. Emperor (32 Cr. L J 1274), a case of the Lahore High Court. The case is no authority for the proposition that a sentence of fine on a conviction under section 325 of the Penal Code can be maintained. In the case under report the charge under section 325 was not brought home to any one of the appellants and their convictions and sentences under that head were set aside.

Mr. Ali Amjad Khan then refers to a case of the Patna High Court, being the case of Ramchander Rai and others v Ram Belas Tewari (34 Cr. L J 407). The relevant observations are to be found in the following extract from the judgment under report :‑

"As regards the erroneous sentence under section 325 of the Indian Penal Code it is perfectly true that a mistake has been made by the Magistrate and that the conviction ought to have involved a sentence, however short, of imprisonment but it is perfectly clear from an examination of the circumstances and the judgment of the Magistrate that the matter was of a petty character and the sentence of fine actually imposed by the Magistrate is, in the circumstances, adequate punishment. Notwithstanding that the sentence was irregular we shall not interfere under our revisional powers which are intended for the redress of genuine grievances and not of mere formal defects".

With great respect to the opinion of their Lordships who decided the case under report, in our opinion it is our duty in the exercise of our criminal revisional jurisdiction to see that a legal sentence is imposed. In the present case it cannot possibly be argued that the matter was merely a trifling one, for the opposite party Ahizuddin was convicted of breaking the rib of an old man of 65.

In these circumstances, this Rule is made absolute and the sentence imposed by the learned Additional District Magistrate on the 7th April 1953, is set aside and the sentence imposed by the trying Magistrate on the 25th of October 1952, that of rigorous imprisonment for four months is restored.

The opposite party will now be‑ called on to surrender and serve out the remainder of his sentence.

agree.

K. B. A. Rule made absolute.

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