ABDUL HAMEED vs MUHAMMAD ABDULLAH and others

ORDER

' AJMAL MIAN, C.J.---By this order we intend to dispose of above two petition which are directed against the order, dated 23-11-1998 passed by the learned Single Judge of the Lahore High Court upon Criminal Miscellaneous No,2 of 1998 filed by the petitioner for suspension of the sentence awarded by the learned Additional Sessions Judge his order, dated 8-10-1998, dismissing the same.

2. The brief facts are that the petitioner was tried by the Judicial Magistrate, Section 30, Lahore, under section 406, P.P.C. And was convicted and sentenced to three years' R.I., with a fine of Rs,5,000 or in default of payment of fine further imprisonment for three months. It appears that the petitioner/convict filed an appeal whereas the complainant filed a revision for the enhancement of the sentence. The learned Additional Sessions Judge by his above judgment, dated 8-10-1998 enhanced the sentence to five years and the amount of fine Rs,10,000 from Rs,5,000 and in default of payment of fine to undergo further S.I. For three months. Against the above order/judgment the petitioner filed an application under section 561-A, Cr.P.C. And revision before the High Court. In the above proceedings, the petitioner filed above Criminal Miscellaneous No,2 of 1998 for the suspension of the sentence which has been declined.

3. We ordered for issuing of the notice to the learned Advocate-General. In response to the above notice Mr. A.H. Masood, learned Advocate Supreme Court has put in appearance on behalf of the learned Advocate-General, Punjab. He opposes the above petition and has urged that both the Courts have rightly awarded the sentence inasmuch as the evidence was properly appraised and the inference were correctly drawn.

4. On the other hand, Mr. S.M. Masud, learned Advocate Supreme Court, for the petitioner, has urged that the learned Additional Sessions Judge without putting to the petitioner the notice as to the enhancement of the sentence and without hearing the arguments, enhanced the imprisonment for three years to five years and the amount of fine from Rs,5,000 to Rs,10,000. Without going to the question, whether any notice was issued for the enhancement by the learned Additional Sessions Judge (as according to the State counsel such a notice was issued). We are inclined to hold that since the sentence was short and as the sentence was enhanced by the learned Additional Sessions Judge from three years to five years, it was fit case in which the learned Judge in Chambers should have exercised the discretion in favour of the convict. We convert the above petition into appeal and admit the petitioner to bail in the sum of Rs,2,00,000 (two lacs) with one surety in the like amount to the satisfaction of the trial Court.