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Criminal Revision Petition No. 230 of 1954 decided on 15th June 1954, against the order of Muhammad Aslam Khan, Additional Sessions Judge, Lahore at Sheikhupura, dated the 23rd January 1954, affirming that of M. Anwar Shariq, Magistrate 1st Class, Sheikhupura, dated the 30th November, 1953.
Prosecution witness relative of com plainant‑Mere relationship no ground for rejection of evidence.
Ss. 438, 439 Sentence‑Enhancement‑Reasons.
The High Court will not interfere so as to enhance the sentence unless the sentence is grossly and manifestly inadequate and clearly wrong in the circumstances of the case.
Recommendations for enhancement under section 438 Cr. P. C. should not be lightly made and when made, should be supported by reasons.
[Cases referred to.]
Sh. Muhammad Latif for Petitioners.
M. 1. Bhatti for Advocate‑General for Respondent.
Rustam Ali, Muhammad Amin, Muhammad Sharif. Yusaf Ali Yaqub Ali, Allah Ditta and Barkat Ali (Petitioners) were convicted by Mr. Anwar Shariq, Magistrate 1st Class, Sheikhupura, under section 148, P. P. C. and 324/149 P. P. C. and each one of them was sentenced to six months' rigorous imprisonment on each count. Both the sentences have been ordered to run con currently. The convicts went up in appeal against their convictions and sentences. Mr. Muhammad Aslam Khan, Additional Sessions Judge, Sheikhupura, has dismissed their appeal and has referred the case to this Court under section 438 of the Code of Criminal Procedure for enhance ment of the sentences. The convicts have also filed a revision petition (Criminal Revision No. 230 of 1954) against their convictions and sentences.
Briefly stated the facts of the case are that Barkat (P. W. 1) is a Mukhtar of Ilam Din, Girdawar Kanungo, Bazianwala. The petitioners, who are related to Ilam Din, suspected that Barkat P. W, had illicit relations with Mst. Hajran, wife of Ilam Din. On the 13th of March 1953, at about 9 a.m. Barkat P. W. was going from his village towards his square. When he reached square No. 5 he found the petitioners standing there. Barkat and Sharif, petitioners, were armed with kulharis; Yaqub petitioner had a ballam and the others had sotas in their hands. Rustam Ali (petitioner) exhorted his companions by raising a shout "Do not let him go". Thereupon the petitioners ran towards Barkat P. W. Sharif and Barkat (petitioners) attacked Barkat P. W. with their kulharis and caused injuries on his head. Yaqub (petitioner) then gave him a ballam blow on his right leg and the other petitioners gave him sota blows. Barkat P. W. raised an alarm which attracted Ibrahim (P. W. 2), Ghulam Rasul (P. W. 3), Ghulam Hussain (P. W. 4) and Nur Muhammad (P. W. 5) to the spot. Barkat P. W. fell down on the receipt of the injuries and became unconscious which he regained in the Civil Dispensary, Shahkot, where his statement Exh. P. A. was recorded by the Sub‑Inspector on the basis of which the first information report was lodged. Captain Sarfraz Shah, A. M. O. Civil Hospital, Shahkot, examined Barkat P. W. on the same day at 1 p.m. and found the following injuries on his person:‑
(1) A contused wound, 2 x x , oblique, on the front part of the scalp, in the middle.
(2) Incised wound, 2 " x 1/3", into bone deep, oblique on the top of the scalp The margins of the wound and the muscles underneath were clean cut.
(3) Contused wound, 1 " x , oblique, on the right side of the scalp, 3 " above the right ear.
(4) Punctured wound, " 1/3 x ", longitudinal, on the outer side, lower part of right leg.
(5) Abrasion, 1 " x " oblique, on the outer side, lower part of left knee.
(6) Incised wound, 1 ' x 1/8 x 1/8 , oblique, on the front and middle of left leg.
(7) Abrasion, x scalp, on the outer side of right knee.
(8) Contusion, 2 " x " oblique, on the inner side of right knee.
(9) Contusion, 3" x " oblique, on the outer side middle of right leg.
(10) Contusion, 2 " x oblique, on the outer side, lower one‑third part of right leg.
(11) Contusion, 7" x 1, oblique, on the right side of back, upper part.
(12) Contusion, 1" x ", oblique, on the back of left shoulder.
(13). Contusion, 3 x " oblique, on the right side of the back upper part, crossing injury No. 11 at its lower end.
(14) Abrasion, " x 1/8 ", oblique, on the inner side of left knee.
The petitioners pleaded not guilty to the charge and stated that Mst. Hajran had illicit relations with Barkat P. W. and that on the day of occurrence Mst. Hajran and Barkat P. W. were seen by Barkat (petitioner) in a com promising position. Thereupon Barkat (petitioner) wanted to take Barkat P. W. to the police station, which was resisted by Barkat P. W. who called his brothers and then a fight ensued in which Barkat P. W. was injured. Sharif (petitioner) came later to help Barkat (petitioner) and took, part in the fight. The petitioners examined Rustam Ali (D. W. 1), Abdullah (D. W. 2), Muhammad Shafi (D. W. 3) and Muhammad Hussain (D. W. 4) in support of their version.
The petitioners' version that Mst. Hajran and Barkat P. W. were seen in a compromising position on the day of occurrence has been rightly disbelieved by the Courts below. The learned Sessions judge has given very cogent reasons for disbelieving it.
The prosecution case rests on the evidence of Ibrahim (P. W. 2), Ghulam Rasul (P. W. 3). Ghulam Hussain (P. W. 4) and Nur Muhammad (P. W. 5), the eyewitnesses of the occurrence who substantially corroLorated the evidence of Barkat P. W. The learned counsel for the petitioners urged that the prosecution witnesses are related to Barkat P. W. and therefore, their evidence should not be believed. There is no force in this contention. If the evidence of witnesses who happen to be either relations or friends of the com plainant is discarded simply on the ground of their relationship, then the Court shall have to fall back either on the evidence of the enemies or of total strangers who, in many cases, would have not business to be present at the time when, and at the place where, the crime is committed. The trial Court which had the advantage of seeing and watching the demeanour of the prosecution witnesses has held that they are natural witnesses and that there is nothing to suggest that they are in any way inimically disposed towards the accused. In the circumstances, I do not see any reason to reject their evidence on the ground' that they are related to the complainant. The evidence of the complainant and the eyewitnesses is corroborated by the medical evidence. Its perusal shows that Barkat P. W. had incised wounds, punctured wounds and contusions on his body. This means that three different kinds of weapons were used in assaulting him. It substantially corroborates the prosecution case that two of the assailants had kulharis, one had a ballam and the others had sotas. I have gone through the evidence on the record and I agree with the Courts below regarding the participation of all the petitioners in the assault on Barkat P. W. They have, therefore, been rightly convicted by the Courts below and I dismiss their petition.
The next question for consideration is the recommendation of the learned Additional Sessions Judge for enhancement of sentences. During the last week seven cases forwarded by the Additional Sessions Judge, Sheikhupura, under section 438 Criminal P. C., for enhancement of sentences have come to my notice. 1, therefore consider it necessary to refer to the authorities on the subject. In Uttam Singh v. Emperor (A I R 1938 Lah. 208) it was held:‑
"The powers to enhance sentence should be sparingly exercised by the High Court and sentences should be enhanced only in cases where the failure to enhance the sentence would lead to serious miscarriage of justice."
held in Emperor v. Ram Sarup (A I R 1931 Lah. 132) following the earlier authorities that when the sentences are inadequate, but not grossly inadequate, there should be no interference on the revision side. It was held in Hala San v. The King (A I R 1942 Rang. 49)‑
The question of sentence is always a matter of discretion and therefore the High Court in revision will be not to interfere unless the sentence passed is clearly wrong. The High Court will not interfere in revision in order to pass a sentence which is slightly different from the one originally passed. The fact that the sentence passed is very lenient is not a sufficient ground on which the High Court will exercise its powers to enhance the sentence. Generally speaking a sentence will not be enhanced in revision unless it is such a manifestly inade quate punishment for the offence committed as to amount to a miscarriage of justice",
considered this question in The Crown v. Khurshid Ahmad Minto (44 P L R 167). In that case the accused respondent was convicted under rule 38 clause (5) of the Defence of India Rules for making a prejudicial speech and was sentenced to one year's rigorous imprisonment and a fine of Rs. 200 by the trial Court. On appeal the learned Sessions judge reduced it to the period of imprisonment already undergone‑which was only four days‑and remitted the fine. An application for enhancement of sentence was preferred on behalf of the Crown. While dismissing the petition for enhancement of sentence, the learned Judge observed that the High Court does not interfere in revision unless the sentence is manifestly inadequate. Emperor v. Alimchand Bulchand Thadani (224 1 C 225) is another authority on the point. Alimchand Bulchand Thadani was convicted of the breach of an order under rule 81 (2) (a) read with section 2(2), clause (xx), Defence of India Act, and sentenced to pay a fine of Rs. 250. On a reference under section 438 of the Code of Criminal Procedure for enhance ment of sentence, Davis C. J. and O'Sullivan, J. observed:‑
"We do not interfere to enhance punishments unless we consider they are grossly inadequate. A Magistrate in such matters must have some discretion in the matter of punishment, and in the exercise of his discretion, we must not lightly interfere"
Jackson, J. considered this question in Shanmuga Kodumban and others v. Emperor (123 I C 43) and observed:‑
"A large discretion must be left to the trial judge who has seen the accused and knows the effect which imprison ment is likely to have upon them individually and who also knows the criminality of his District and what deterrence is necessary".
I have considered the recommendation of the learned Additional Sessions Judge in the light of the above authorities. The accused‑respondents have been convicted under sections 148 and 324/149 P. P. C. and each one of them has been sentenced to six months' rigorous imprisonment on each count. The question that I have to decide is whether the sentence passed on the petitioners is so grossly inadequate as to call for interference by this Court. I have no hesitation in answering the question in the negative. The learned Additional Sessions judge has given no reasons in his recommendation why he considered the sentences so grossly inadequate, which called for an interference by this Court. At the time of making a recommendation for enhancement of sentence, the Sessions judge should keep in view the principle laid down in the authorities referred to above Recommendations for enhancement of sentences should not be lightly made.
After having carefully considered the various aspects of this case, I dismiss the petition and decline to enhance the sentences. The petitioners who were released on bail by this Court on the 12th of March 1954, shall be apprehended to serve the un-expired terms of their sentences.
A. H. Petition dismissed.
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