NASIR FAROOQ Versus SHAHBAN AZIZ

1. CHAUDHARY KHALID RASHEED, J.--- Through the supra titled appeal the judgment recorded by District Criminal Court Mirpur dated 29.09.2020 has been assailed, whereby accused-respondent has been sentenced under section 324 A.P.C. by awarding 10 years rigorous imprisonment and fine of Rs. 20000/- under section 337F(3), Rs. 30000/- under Section 337F(4), Rs. 50000/- 337(F6), whereas, the sentence awarded by the trial Court in offence under section 324 A.P.C. has been reduced and also sentence awarded by the trial Court in offences under sections 337(F3), 337(F4) and 337F(6) has been set-aside, hence, the appellant preferred the instant appeal for enhancement of the sentence.

2. In view of the purpose conclusion the detailed facts of the appeal need not to be reiterated as the same being incompetent for the reasons to be recorded in the following part of the judgment.

3. As this Court has already held in various judgments that in view of provisions contained in Section 423(b) Cr.P.C. sentence awarded by a Court of original jurisdiction cannot be enhanced in appeal. For ready reference section 423(b)(2) Cr.P.C. is reproduced as under:-

423. Powers of Appellate Court in disposing of appeal. (1). The Appellate Court shall then send for the record of the case, if such record is not already in Court. after perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears and, in case of an appeal under Section 411-A subsection (2) or section 417, the accused, if he appears, the Court may if it considers that there is no sufficient ground for interfering, dismiss the appeal or may;

4. (a). 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 sent for trial to the Court of Session or the High Court, as the case may be or find him guilty and pass sentence on him according to law;

5. (b). in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or sent for trial; or (2) alter the finding, maintaining the sentence, or, with or without altering the finding reduce the sentence, or (3), with or without such reduction and with or without altering the finding, alter the nature of the sentence but, subject to the provisions of section 106, sub-section (3) not so as to enhance the same;

6. (Emphases supplied)

(c) in an appeal from any other order, alter or reverse such order;

(d) make any amendment or any consequential or incidental order that may be just or proper."

7. The superior Courts have held in plethora of judgments that sentence recorded by the Court of original jurisdiction can only be enhanced in a revision petition filed under section 439(1) Cr.P.C. For ready reference section 439 is reproduced as follows:-

439. High Court's powers of revision. (1). In the case of any proceeding the record of which has been called for by itself, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence; and when the Judges composing the court of revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429.

8. (2). ----------

9. (3). ----------

10. (4). ----------

11. (5). ----------

12. (6). ----------

13. The Hon'ble Supreme Court of Pakistan while interpreting the provisions of sections 423 and 439 Cr.P.C. in a judgment reported as PLD 2007 SC 405, held as under:

14. "It may be noted that section 423, Cr.P.C. does not confer powers of enhancement of sentence of an accused upon the Court functioning under the Cr.P.C as according to its subsection (1) clause (b), in an appeal from a conviction, (1) Court can reverse the findings and sentences, and acquit or discharge the accused, or order him to be revived by a Court of competent jurisdiction, subordinate to such Appellate Court or sent for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding reduce the sentence, or (3), with or without such reduction and with or without altering the finding, alter the nature of the sentence but, subject to the provisions of section 106, subsection (3) not so as to enhance the same. The Appellate Court under Cr.P.C is not authorized even to convert acquittal into conviction or enhance the sentence whereas section 439 Cr.P.C confers such powers upon Revisional Court i.e. the High Court to enhance the sentence. Contrary to the power, available to Appellate Court under Cr.P.C. section 133(b) of PA Act, while defining the powers of the Appellate Authority in subsection (2) clause (f), specifically confers powers to remit the whole or any part of the punishment or reduce or enhance the punishment or commute the punishment for any less punishment or punishment mentioned in this Act."

15. Similar observations were recorded by the Hon'ble Supreme Court of Azad Jammu and Kashmir in a case reported as PLJ 1987 SC (AJK) 18.

16. Powers exercisable by High Court in appeals and revisions are similar except that in appeal sentence cannot be enhanced and in a revision acquittal cannot be converted into conviction. Furthermore, a division bench of this Court in a Criminal Appeal No. 02/2008 titled "Usman and another v. The State and others" decided on 03.08.2022 considered the scope of section 423 Cr.P.C which relates to the powers of appellate Court as being "res ipsa loquitur" hence, observed as under:--

17. "Another legal aspect of the instant matter is that the legal heirs of deceased, Mohammad Younis and others, have also filed an appeal for enhancement of the sentence awarded to convict Usman and Inzamam ul Haq under Section 25 IPL. No doubt, as compared to Pakistan for trial and disposal of criminal cases, a special law known as Azad Jammu and Kashmir Islami (Tazirati) Qwanin Nafaz Act, 1974, has been enacted and section 25 of the said Act provided a remedy to assail the judgment of District Criminal Court which includes Additional District Criminal Court, appeal shall lie to the Shariat Appellate Bench of High Court which included the powers to entertain a revision petition against said order. In Azad Jammu and Kashmir Islami (Tazirati) Qwanin Nafaz Act, 1974 the powers to appellate Court have not been defined, thus, in the light of direction contained in section 32 of the said Act, all the matters which are not specifically explained in this Act, Tazirat-e-Pakistan and Criminal Procedure Code shall apply, we have to go through the provisions of Criminal Procedure Code. As per powers of the Appellate Court alluded in section 423 Cr.P.C, the Appellate Court in disposing of appeal, may reverse the finding and sentence, acquit or discharge the accused, order him to be retried or sent for trial, alter the finding maintain the sentence, with or without altering finding reduce the sentence, alter the nature of sentence but not so as to enhance the sentence. When it has blatantly illuminated in section 423 Cr.P.C that appellate Court is not empowered under this Section to enhance the sentence thus, the provisions of section 439 Cr.P.C shall come into force, which determined the powers of the High Court to exercise revisional jurisdiction, thus, it can safely be held that appellate app Court cannot enhance the sentence of convict but it can be enhanced while exercising revisional jurisdiction of this Court, hence, for enhancement of sentence of revision petition shall lie under Section 25 of Azad Jammu and Kashmir Islami (Tazirati) Qwanin Nafaz Act, 1974, to this Court, so appeal filed for enhancement of sentence entails dismissal as not sustainable. Reliance is placed by a judgment of Honorable Supreme Court of Pakistan reported as PLD 2007 SC 405."

18. The crux of the above debate is an appeal for enhancement of sentence recorded by Court of original jurisdiction is barred by section 423 Cr.P.C. and an aggrieved person or state may approach to the appellate Court for enhancement of the sentence through a revision petition under section 439 Cr.P.C. The sum and substance of the above discussion is, the instant appeal is hereby dropped as being not sustainable.

19. JK/59/HC (AJ&K) Appeal dropped.