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Criminal Petition for Special Leave to Appeal No. 31‑R of 1975, decided on 10th October 1974.

(On appeal from the judgment and order of the Peshawar High Court. Peshawar, in Criminal Revision No. 21 of 1975 dated 25‑4‑1975).

‑‑ S. 439 ‑Revision‑Enhancement of sentence‑Question whether sentence should or should not be enhanced in revision by High Court‑Dependent upon circumstances of each case‑No precedent exists nor desirable to lay down any principle of general application in such regard‑High Court not barred from enhancing sentence once convict discharged from jail ‑Penal Code (XLV of 1860), S. 326. [Revision (criminal)‑Sentence).

Zafar Mahmood, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner.

Abdul Samad Khan, Advocate‑on‑Record for M. Qasim Imam, Advocate -on‑Record for the State.

Date of hearing : 10th October 1975.

Early on the morning of 21‑12‑1973 the petitioner here in chopped off the nose of his wife Mst. Parveen Akhtar with a razor in their cattle shed at a distance of a few paces from their residential house in village Barthal. Tehsil Haripur. The report was lodged by Sultan P. W. a brother of Mst. Parveen Akhtar who lived closely.

The prosecution case was that the parties were married 12 years before the incident. Four girls were born of the marriage of whom three were alive, the fourth having died in her infancy. The petitioner wanted to have another wife because of his failure to beget a male child from Mat. Parveen Akhtar. She, however, did not agree to the proposal of second marriage by the petitioner who felt enraged and chopped off her nose.

The petitioner admitted the incident but took the plea of a grave and sudden provocation because he had seen an unidentified person in the cattle- shed. Suspecting his wife of misbehaviour be lost self‑control he cut her nose.

The trial Court accepted the prosecution version and rejected that of the defence and sentenced the petitioner to three years rigorous imprisonment and a fine of Rs. 300 or in default to undergo a further imprisonment of three months.

On appeal the learned Sessions Judge gave effect to the defence plea and while maintaining the conviction of the petitioner reduced his sentence to one year and remitted the fine altogether. A revision under sec tion ‑139. Cr. P. C. by Mst. Parveen Akhtar, has however, succeeded and the High Court vide judgment dated 25‑4‑1975 has restored the sentence of three years imprisonment passed by the trial Court and enhanced the fine to Rs. 500 or in default to undergo six months further imprisonment. The fine if recovered was made payable to Mst. Parveen Akhtar as compensation. The petitioner seeks leave to appeal against the High Court judgment.

In support of this petition the only point urged by the petitioner's learned counsel was that the petitioner had served out the reduced sentence of one year imposed by the learned Sessions Judge and was actually discharged from jail on 23‑4‑1975 while the revision petition against him was still pending in tie High Court. Learned counsel stressed that the High Court should have taken notice of the petitioner's discharge from jail and not have enhanced the sentence so as to entail the petitioner s re‑committal to the prison to serve out the enhanced sentence. In support of his argument, learned counsel cited a number of precedents. The respondent cases do not go so far as to lay down a principle of laws that the sentence cannot be enhanced by the High Court once a convict is discharged from jail in the circumstances of this case Indeed in our view the question whether or not the sentence could be enhanced by the High Court in revision in a given case will depend upon the circumstances of that case and it would be undesirable to lay a principle of general application.

Having regard to the facts of the case, the learned judge in the High Court has given cogent reasons for enhancing the sentence of the petitioner even if it entailed a recommittal of the petitioner to jail.

The petition is accordingly dismissed.

Petition dismissed,

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