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S. 304‑A ‑ Death caused by negligence‑Accused truck driver reversing truck rashly and crushing to death a boy of tender age Accused if at all had taken due care and caution accident could have been avoided‑Accused appellant, held, rightly convicted but considering his having remained imprisoned eversince his conviction and having already undergone 9 months' imprisonment, sentence already under gone sufficient to meet ends of justice‑Sentence of imprisonment reduced to one already undergone in circumstance.‑‑[Sentence].

(b) Criminal Procedure Code (V of 1898)‑

S. 439(1) (3) read with Ss. 32 & 34‑‑‑Enhancement of sentence High Court can of course enhance sentence of a convicted person suo motu under S. 439(1) but in case of sentence passed by Magistrate acting otherwise than under S. 34 cannot inflict a higher sentence than one which might have been inflicted for such offence by a Magistrate of First Class‑Magistrate, First Class being empowered to impose fine not exceeding Rs. 5,000, High Court, held, could not inflict a greater punishment or impose a higher fine than one which could have been imposed by trial Magistrate, limit whereof extended to Rs. 5,000 only.‑ [Sentence].

Ch. Khalflur Rahman, Senior Advocate Supreme Court and Muhammad Aslam Ch. Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of bearing

: 30th March, 1982.

ABLAM RIAZ HUSSAIN, J.‑This order shall dispose of Criminal Petition Nos. 107 of 1982 and 108 of 1982, both filed by Shaukat

Ali, after converting them into appeals.

2. The facts leading to the present appeals briefly are that at about 5 p.m. on 15‑11‑1976, the appellant was driving Truck No. RIB 4398. He drove the truck on the Rasulnagar Bund and turned towards Head Qaidabad, driving on the Bund. He had gone a short distance be reversed the truck rashly as a result of which Ashiq Hussain a young boy aged about 10 years was crushed and died of the injuries suffered by him. The boy's father Taj Din as well as Murad Ali and Muhammad Iqbal who were sitting nearby saw the occurrence. Taj Din lodged the F. I. R. (Exh. P. B.) on the same day which was recorded by Yousaf Ali Khan A. S. I., Police Station Alipur Chatta, District Gujranwala. He was cried by a Magistrate First Class, Wazirabad for offence under section 304‑A, P. P. C. and was found guilty of the offence. He was sentenced to 2 years' R. I. and a fine of Rs. 1,000 or in default to suffer R. I. for 6 months. He filed an appeal before the Additional Sessions Judge which was dismissed on 25‑8‑1981. He then filed a Revision Petition before the High Court. The learned Judge in Chamber admitted the petition to a regular hearing and also issued a suo motu notice to the appellant "to show cause why in case his revision fails his sentence should not be enhanced." The revision petition was ultimately dismissed vide the impugned judgment dated 20‑2‑1982. The learned Judge in Chamber maintained the sentence of imprisonment but enhanced the sentence of fine from Rs. 1,000 to Rs. 10,000 in exercise of suo motu jurisdiction under section 439, Cr. P. C., but recorded a separate order stating that the suo motu petition stood disposed of by the main judgment.

Criminal Petition No. 107 of 1982 was filed by the appellant against his conviction and sentence of imprisonment while Criminal Petition No. 108 of 1.982 was filed challenging the enhancement of his fine in exercise of suo motu power by the learned Judge in Chamber under section 439, Cr. P. C.

3. We issued notice to the Advocate‑General and after hearing him granted Leave to the petitioner in both the petitions on 30‑3‑1982 and fixed the appeals for hearing on the next day (i.e. 31‑3‑1982).

4. On merits the learned counsel for the appellant submitted that since according to the prosecution case itself the accident had taken place when Shaukat Ali was reversing the truck it cannot be said that he was driving rashly. He further submitted that the boy (namely Ashiq Hussain) was killed because he alongwith some other boys was clinging to the rear of the truck and while the appellant was reversing the truck Ashiq Ali fell down and got overrun and as such the appellant was not guilty of offence under section 304‑A, P. P. C. We are not inclined to agree with the submission because as pointed. out by the Assistant Advocate‑General appearing for the State, that if Shaukat Ali appellant had taken due care and caution he could have easily avoided the accident. However, considering that he has been imprisoned eversince he was convicted on 11‑6‑1981 and has already undergone 9 months' imprisonment we think that the sentence already undergone by him would be sufficient to meet the ends of justice. We, therefore, reduce his sentence of imprisonment to that already undergone by him.

5. We now come to the appeal arising out of Criminal Petition No. 108 of 1982.

The learned counsel for the appellant has rightly submitted that the learned Judge in Chamber could not have enhanced the sentence of fine to Rs. 10,000 in exercise of his suo motu power under section 439, Cr. P. C.

The High Court can, of course, enhanced the sentence of a convicted person in exercise of its suo motu revisionai power under section 439(1), Cr. P. C. B Gut subsection (3) of the said section provides as follows :‑

"Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under section 34 the Court shall not inflict a greater punishment for the offence which, is the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Magistrate of the first class."

In the present case it is admitted that enhanced power under section 34, Cr. P. C. had not. been conferred on the learned trial Magistrate. Conse quently, as provided under section 32, Cr. P. C. a Magistrate, First Class could only impose a fine not exceeding Rs. 5,000. As a result the learned Judge in Chamber could not inflict a greater punishment or impose a higher fine than the one that could have been imposed by the learned trial Magistrate, C the limit whereof is Rs. 5,000 only. In other words the enhancement of fine to Rs. 10,000 is not legal. We, therefore, reduce the amount of fine from Rs. 10,000 to Rs. 5,000.

Both the appeals stand disposed of accordingly.

s. A. H. Orders accordingly.

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