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Petitioner: BASHIR AHMAD VS Respondent: STATE
1988 S C M R 472
1988 S C M R 472
Present: Aslam Riaz Hussain and Javid Iqbal, JJ
BASHIR AHMAD--Petitioner
Versus
THE STATE--Respondent
Petition for Leave to Appeal No.303 of 1987, decided on 17th November, 1987.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 25th August, 1987 in Criminal Revision No.145 of 1986).
Criminal Procedure Code (V of 1908)--
---S.439--Penal Code (XLV of 1860), 5.304-A--Constitution of Pakistan (1973), Art.185(3)--Revisional jurisdiction of High Court--Power to suo motu enhance sentence-- Petitioner convicted under 5.304-A. P.P.C. by Magistrate First Class with Section 30 powers and sentenced to three years' rigorous imprisonment with fine of Rs.3,000--Sentence maintained in appeal but enhanced by High Court in revision to 5 years' with fine of Rs.10,000--Order impugned--Contention raised that in column 8 of Schedule II, Cr.P. C. offence under 5.304-A, P.P. C, was triable by Magistrate First Class who could award maximum sentence of three years and in circumstances High Court, while exercising its powers under S.439(3), Cr.P.C., could not enhance and impose a greater punishment than one which could be imposed for such an offence by Magistrate of First Class--Held: in Second Schedule of Cr.P. C. although distinction has been made between Magistrate of First, Second and Third Class, no such distinction has been made between a Magistrate of First Class (simpliciter) and a Magistrate First Class -on whom section 30 powers have been conferred--Magistrate First Class who tried petitioner had powers to award sentence upto seven years' R.I. and High Court was consequently within its power to enhance sentence upto seven years' R.I.--Where in such type of cases, trial Magistrate while convicting petitioner had sentenced him to inappropriate term of imprisonment and imposed fine, High Court while exercising its revisional jurisdiction was indeed empowered to suo motu enhance the sentence of imprisonment and fine--No interference being called for in impugned judgment, leave to appeal 'refused.
Waheeddin Virk, Senior Advocate Supreme Court instructed by Maqbool Ahmad Qadri, Advocate-on-Record for Petitioner,
S.M. Zubair, A.A.-General, Punjab for Respondent.
Date of hearing: 17th November, 1987.
ORDER
JAVID IQBAL, J,--This petition for leave to appeal has been filed by Bashir Ahmad petitioner who was convicted under section 304-A, P.P.C. by the Magistrate First Class with section. 30 powers vide judgment dated 22nd July, 1985 and sentenced to three years' R.I. plus fine of Rs-3,000 or in default to undergo nine months' R.I. On appeal the conviction and sentence were maintained by the Additional Sessions Judge. The revision petition of the petitioner was dismissed by learned Single Judge of the Lahore High Court, Lahore who suo motu enhanced the sentence of petitioner to five years' R.I. , plus fine of Rs.10,000 or in default nine months' R.I. The main allegation against the petitioner is that on 1st July, 1983 at about mid-night he while driving a truck collided against the cycle of Ilyas deceased as a result of which Ilyas deceased received injuries and died whereas Muhammad Aslam P.W. who was sitting on the carrier of the cycle sustained injuries.
2. It was argued by the learned counsel for the petitioner that according to the evidence on record the petitioner was not driving the truck rashly or negligently. But we are not convinced by the argument of the learned counsel so far as the merits of the case are concerned which has carefully attended to by the Courts below.
3. It was next argued by the learned counsel that in column 8 of Schedule II of Cr. P. C . the offence under section 304-A , P. P. C . is triable by Magistrate of First Class. According to the learned counsel this indicates that the intention of the Legislature was that such an offence was to be tried only by a Magistrate of First Class and that even if, as in the present case the Magistrate trying such an offence had been conferred section 30 powers under section 34, Cr.P. C. , would still act as a Magistrate First Class only, who as trial Court could award maximum sentence of imprisonment of three years. Thus according to the learned counsel this contention is supported by the fact that in the instant case although the Magistrate First Class trying the petitioner had section 30 powers, yet while convicting the petitioner he only sentenced him to three years' R.I. plus fine. He urged that in these circumstances the High Court while exercising its powers under section 439(3), Cr.P.C. could not enhance and impose greater punishment than the one which could be imposed for such an offence by a Magistrate of the First Class.
4. We have carefully considered the above-noted contention and feel that it is wholly misconceived because in the Second Schedule to the Code of Criminal Procedure, although distinction has been made between Magistrate of the First, Second and Third Class no such distinction has been made between a Magistrate of the First Class (simpliciter) and a Magistrate First Class on whom section 30 powers have been conferred. As such in the present case the Magistrate First Class who tried the petitioner had powers to award the sentence upto seven years' R.I. The High Court was consequently within its a power to enhance the sentence upto seven years' R.I. (although an offence under section 304-A, P.P. C. carries a sentence of imprisonment which may extend to ten years' R.I.). In this view of the matter in a case of this nature where the trial Magistrate while convicting the petitioner had sentenced him to inappropriate term of imprisonment and imposed fine, the High Court while exercising its revisional jurisdiction was indeed empowered to suo motu enhance the sentence of imprisonment as well as fine. In these circumstances in our opinion no interference is called for in the impugned judgment of the High Court.
The petition is accordingly dismissed.
M . I . / B-31 /S?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.