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Criminal Appeal No. 59 of 1973, decided on 1st December 1975.
(On appeal from the order and judgment dated 20‑1‑1975 of the Lahore High Court, Lahore, in Criminal Revision No. 411 of 1970).
Criminal Procedure Cards (V of 1898)‑
‑‑ S. x44‑A read with S. 439 ‑Sentence, enhancement of Revision‑ No order of enhancement of sentence can be made to accused's prejudice without giving him opportunity of being heard‑Imposition of fine under S. 544‑A without complying with mandatory provision of S. 439(2)‑Not legally tenable‑Imposition of fine set aside‑[Fine‑ Sentence‑Revision (Criminal)].
Muhammad Muzaffar, Advocate Supreme Court instructed by S. Wajid Hussain, Advocate‑on‑Record (absent) for Appellants.
Riaz Ahmad, Assistant Advocate‑General, Punjab instructed by Ijaz Ali, Advocate-on‑Record (absent) fore Respondents.
Date of hearing : 1st December 1975.
‑Tine two appellants were convicted, alongwith six others Isa the Sub‑Divisional Magistrate, Shujabad, on 25th November 1969, and sentenced to one year's rigorous imprisonment under section 118, P. P. C. and to three years rigorous imprisonment under section 307 j 149. P. P. C. An appeal, preferred by the convicts, was dis missed by the Sessions Judge, Multan, on 18tb March 1970. The appellants and their co‑accused then filed Criminal Revision No. 316 of 1970 in the High Court agitating against their convictions and sentences while Khurshid Hussain, private complainant, filed Criminal Revision No. 401 of 1970 for enhancement of the sentences imposed on the accused by the Sub‑Divisional Magistrate .
A learned judge of the High Court accepted the Revision by the co‑ accused of the appellants by giving they, the benefit of doubt. The conviction and sentences of the appellants were, however, maintained and by order dated 20th January 1972, a fine or Rs. 2,000 each was also imposed on them under section 544‑A. Cr. P. C.
Leave to appeal was ranted ore 27th October 1972, to consider the legality of the imposition of he sentence of fine on the appellants without issuing notice to them in Criminal Revision No. 401.
A perusal of the record shows that when Criminal Revision No. 40t of 1971 came in motion a learned Judge of the High Court directed that it will be heard alongwith Criminal Revision No. 316 of 1970 filed by the convicts. No notice of this petition was issued to the appellants or their co. accused. This petition was eventually dismissed with the observation that it has become infructuous. It follows teat the imposition of fat on the appellants in not in pursuance to they criminal revision filed by the private complainant, but is an integral part of the judgment delivered on Criminal Revision filed by the appellants against their respective convictions and sentences.
Section 439 empowers a High Court to roger alia enhance the sentence imposed by the Court below, but it is provided in subsection (2) that no order under this section shall‑ be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. As seen the proceedings of Criminal Revision No. 316 of 1970 disclose that the learned Judge did not give any opportunity to the appellants before the sentence of fine was imposed on them. The imposition under section 544‑A, Cr. P. C., is thus in breach of the mandatory provision of subsection (2) of section 439.
The appeal is accordingly allowed and the imposition of fine on the appellants by the High Court is set aside.
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