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Criminal Appeal No. 1 of 1957, decided on 4th March 1957.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 1st May 1956, in Criminal Appeal Case No. 340 of 1956.)

Appeal‑Sentence‑Powers of appellate Court to inflict punishment‑Not dependent upon powers of Magistrate who acquitted accused‑Criminal Procedure Code (v of 1898), S. 423 (1) (a).

The principle that is deducible from provisions of the Criminal Procedure Code viz. section 423 (1) (a) and section 439 (3), is that the powers of the appellate or revisional Court to inflict punishment are not dependent upon the powers of the Magistrate who tried the accused.

Where an accused person, who was tried and acquitted by a Magistrate of the Second Class, of the offence of theft was convicted and sentenced by the High Court on appeal to one year's rigorous imprisonment, which was in excess of the sentence a second class Magistrate could have awarded if the accused had been convicted by such Magistrate:

Held, that the sentence passed on the appellant by the High Court was in accordance with law and that there was no justification for assuming any limitation on the power of the High Court to award a sentence in excess of the maximum which the Magistrate could have awarded.

Held, further, however, that though this was the legal position, it was not desirable, except in exceptional cases, for the appellate Court to pass a sentence exceeding that awardable by the Magistrate who tried the case.

M. Ismail Bhatti, Advocate, Supreme Court, instructed by Nazir‑ud‑Din, Attorney for Appellant.

Faiz Muhammad, Advocate‑General, West Pakistan (M. Z. Kitchlew Advocate, Supreme Court with him), instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing: 24th January 1957.

This appeal, by special leave, raises the question whether in an appeal from an acquittal the appellate Court can inflict on the accused a sentence in excess of the powers of the Magistrate who tried and acquitted him.

The appellant, Muhammad Munir, was tried by a Magis trate of the second class for an offence under section 379 of the P. P. C. alleged to have been committed at a railway station. He was acquitted, but on appeal the High Court reversed the conviction and sentenced him to one year's rigorous imprisonment. The sole point involved in this appeal is whether the appellate Court was competent to inflict a sentence of one year's imprisonment, the maximum sentence of imprisonment that could have been awarded by the trial Magistrate being six months. The relevant provision on the construction of which the answer to the question depends is clause (a) of subsection (1) of section 423 of the Code of Criminal Procedure which provides that the appellate Court may "in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law". In the present case, it is not contended that the sentence passed is not according to law. What is urged is that because the Magistrate, who tried the appellant, could not have given him a sentence of more than six months imprisonment a similar limitation on the appellate Court's power must be assumed to have existed when it set aside the order of acquittal and finding him guilty of the offence charged passed the sentence of imprisonment. We see no justification for this assumption in the provision; nor any principle implying such limitation. There is no warrant in the Criminal P. C. for the rule that where an accused person has once been tried by a Court, the appellate or revisional Court cannot inflict on him a sentence in excess of the powers of the Court that tried him. In fact, if any principle is discoverable from that Code it is to the contrary. If an accused person has been acquitted by a Magistrate, say of the second class, the' appellate Court may under clause (a) of subsection (1) of section 423 of that Code order him to be retried by a Court which can inflict on him a more severe sentence. Similarly, the appellate Court may order an acquitted accused to be committed for trial in which case the sentence may well be more severe than was passed by the Court which tried him. When the High Court, as a Court of revision, considers the propriety of the sentence awarded by the trial Court, it is competent, where the trial was by a Magistrate acting under section 34, to award any sentence prescribed by law for the offence, the only limitation recognised by subsection (3) of section 439 of the Code being that where the sentence was passed by a Magistrate, the Court of revision shall not inflict a greater punishment for the offence which the accused is proved to have committed than might have been inflicted for such offence by a Presidency Magis trate or a Magistrate of the first class. It is, therefore, open to the High Court to award a sentence of two years' imprison ment where the accused was tried by a Magistrate of the second class and awarded a sentence of six months or less.

Thus, the principle that is deducible from these provisions of the Code is that the powers of the appellate or revisional Court to inflict a punishment are not dependent upon the powers of the Magistrate who tried the accused. A similar A principle underlies section 39 of the Criminal P. C. accord ing to which if a Magistrate of the second or third class who is trying an accused person is of the opinion, after hearing the evidence for the prosecution and the accused, that he is not competent to inflict a suitable punishment on the accused, he may submit the proceedings and forward the accused to the District Magistrate or Sub‑Divisional Magistrate who may, without a fresh trial or recalling the witnesses, sentence him, subject to the provisions of sections 32 and 33, to a term of imprisonment in excess of the powers of the Magistrate who originally tried him. It is thus evident that an accused person cannot, on conviction, lay claim to a particular sentence merely on the ground that he was originally tried by a Court which could not inflict on them a more severe sentence. For these reasons, the sentence passed on the appellant by the High Court was in accordance with law. But though this is the legal position, we might observe that since an accused person by being tried by a Magistrate of a particular rank comes to entertain an expectation that if convicted the sentence will not exceed that which the Magistrate is competent to inflict and may, in that belief, conduct his defence, it is desirable, except in exceptional cases, for the appellate Court to pass a sentence exceeding that awardable by the Magistrate who tried the case. In the present case, apparently the High Court thought that the offence committed was not an ordinary theft, its gravity lying in the fact that the appellant picked the pocket of a person who was purchasing a railway ticket from a booking office. Thus there being no case for the interference of this Court the appeal is dismissed.

A. H. Appeal dismissed.

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