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Criminal Reference No. 593 of 1962, decided on 28th January 1963.

Accused charged and convicted under Ss. 411 & 75‑Stolen property attache‑case containing spare parts of radio‑Sentenced to maximum term of 3 years' R. L‑Notice to convict for further enhance ment of sentence, in circumstances of case, held, not justifiable.

Syed Murtaza Hussain for Petitioner.

Respondent through Jail.

Date of hearing : 28th January 1963.

As indicated in para. 10 of the judgment of the learned Judge, in Criminal Appeal No. J.‑258‑259 of 1962, a notice was ordered by Mr. Justice A. R. Kharal, to be issued to Gul Sher to show cause why his sentence should not be enhanced. In reply to this notice, Gul Sher has submitted a petition from Central Jail, Hyderabad, opposing the enhancement of his sentence on the ground that he had been falsely involved in the case under consideration due to the enmity of the prosecution witnesses and had adequately been punished for the offence he had been convicted of.

2. Gul Sher was, along with one Esso, charged with and tried for an offence punishable under section 411, P. P. C. An additional charge under section 75, P. P. C. had also been framed against him in connection with his previous convictions. He was convicted of the offence punishable under section 411 read with section 75, P. P. C. and sentenced to suffer rigorous impri sonment for three years by Mr. A. G. Muhammadally, Additional Sessions Judge, Nawabshah.

3. The learned Judge, while ordering the issue of notice to Gul Sher, calling upon him to show cause why his sentence should not be enhanced, had observed as follows :‑

"Section 75, P. P. C. speaks of enhanced sentence.

The sentence of three years awarded to him is provided for in section 411, P. P. C. itself. It appears to me that the learned Additional Sessions Judge has not utilised section 75 against the appellant at all, although charge under section 75 was proved and so also the evidence that the appellant had many convictions against him to justify an enhanced sentence under section 75, P. P. C."

4. Mr. Murtaza Hussain, counsel for the State, is of the view that the enhancement of the sentence passed upon Gul Sher would not be justifiable in view of the circumstances of the case. According to him, the learned Additional Sessions Judge, had properly exercised his discretion in the matter while sentenc ing him to suffer rigorous imprisonment for three years. I am inclined to agree with him, particularly when Gul Sher was, in this case, found guilty of an offence punishable under section 411, P. P. C. on the basis of the allegation to the effect that a stolen attache‑case, containing some spare parts of a ransistor radio, was recovered from his possession shortly after it was reported to have been stolen. He would not apparently have been awarded a sentence of three years' rigorous imprisonment for being found in possession of the said stolen articles. It appears that he was sentenced to suffer rigorous imprisonment for three years after his previous convictions referred to in the charge under section 75, P. P. C. had been taken into consideration. If no additional charge under section 75, P. P. C. had been framed against him, his previous convictions could not possibly have been taken into consideration by the learned Additional Sessions Judge while sentencing him for the offence punishable under section 411, P. P. C.

5. In view of this position. I do not think it is necessary to enhance the sentence passed against Gul Sher in this case. The notice issued to him, therefore, is discharged.

K. B. A.

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