PLJ 2021 Cr.C. 1443
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 435 & 439--Criminal revision--Conviction and sentence--Normal punishment to be awarded to an offender for offences mentioned in Chapter XVI, PPC, is payment of Arsh or Daman and optional/additional punishment of imprisonment as Ta’zir provided for relevant offence could only be awarded to an offender if he is a “previous convict, habitual or hardened, desperate or dangerous criminal or offence has been committed by him in name or on pretext of honour”--In case of such an offender sentence of imprisonment as Ta’zir would be governed by proviso to subsection (2) of Section 337-N, PPC, which would not be less than one third (1/3rd) of maximum imprisonment provided for hurt caused--Factors which may be considered for awarding punishment as Ta’zir are nature of injury/hurt caused, weapon used, brutality or shocking manner of occurrence has been committed being outrageous to public conscience, or adversely effecting harmony among different Sections of people--Both Courts below have failed to attend to this fact of case--Admittedly, petitioner is a first offender, not repeated fire shot and no issue of honour was involved in commission of present offence--In such circumstances, in view of Section 337-N(2), PPC, he could not be burned with additional punishment by way of Tazir--Petitioner is in jail--He is directed to be released in this ease if not liable to be detained in any other case subject to his depositing of half of Daman amount with trial Court, besides submitting security bonds equivalent to remaining Daman amount with one surety in like amount to satisfaction of trial Court--He shall also deposit remaining amount of Daman within two months from today, failing which he shall be taken into custody and shall be “dealt with in accordance with law. [Pp. 1446 & 1447] A & C
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 324--Sentence of three years u/S. 324, PPC as awarded by trial Court and upheld by Appellate Court, do not commensurate with intention contained in Section 337-N, PPC and as such in interest of justice, same is accordingly reduced to period which petitioner/convict has already undergone so far including the-sentence in lieu of fine, but Daman amount Rs. 50,000/- u/S. 337F(iii), PPC passed against petitioner payable to injured PWM recorded by trial Court and upheld by Appellate Court, to meet ends of justice, is enhanced from Rs. 50,000/- to Rs. 75,000/-.
[P. 1446] B
2019 SCMR 516.
Malik Muhammad Siddique Kamboh, Advocate for Petitioner/ Convict.
Sardar Ashfaq Ahmad, Advocate for Respondent/ Complainant.
Mr. M. Abdul Wadood, Addl. P.G for State.
Date of hearing: 17.5.2021.
PLJ 2021 Cr.C. 1443
[Lahore High Court, Multan Bench]
Present: Anwaarul Haq Pannun, J.
ALI RAZA--Petitioner
versus
STATE etc.--Respondents
Crl. Rev. No. 100-J of 2021, decided on 17.5.2021.
Judgment
Crl. Misc. No. 1 of 2020.
At the very outset, in lieu of fixation of titled revision petition for today, learned counsel for the petitioner does not press this petition. Disposed of as such. Office to fix the titled revision petition for today.
MAIN CASE
2. Through the instant criminal revision petition in terms of Section 435/439, Cr.P.C., the petitioner Ali Raza has challenged the legality and propriety of the judgment dated 25.11.2020 passed on the conclusion of a thorough trial by learned trial Court/SCJ (Criminal Division)/Magistrate Section-30, Sahiwal whereby the petitioner was convicted and sentenced as mentioned below and the judgment of learned lower Appellate Court/Additional Sessions Judge, Sahiwal dated 23.12.2020 dismissing criminal appeal u/S. 408, Cr.P.C. while upholding the sentencing judgment of the learned trial Court passed in case FIR No. 794/2018 dated 06.12.2018, under Sections 324,
337-F(iii), 34, PPC, registered at P.S. Ghalla Mandi, Sahiwal:--
i) Three years R.I. u/S. 324, PPC alongwith fine of
Rs. 30,000/- and in default whereof to further undergo SI for one month.
ii) To pay Daman Rs. 50,000/- to the injured PW Muzaffar Hussain.
His sentence in instant case as well as connected case FIR No. 185/2019, u/S. 13(2)(a) of the Punjab Arms (amended) Ordinance, 2015 was also ordered to run concurrently. He was also extended the benefit of Section 382-B, Cr.P.C.
3. With specificity the role attributed to the petitioner is that he while armed with pistol made a fire shot hitting Mozaffar Hussain on left side of his buttock.
4. As stated above, after exhausting remedy of appeal before learned Appellate Court, the petitioner through this petition has invoked revisional jurisdiction of this Court.
5. Incipiently, without contesting conviction, learned counsel for the petitioner submits that petitioner has undergone substantial portion of his sentence, therefore, in view of the fact that he did not repeat the fire shot; neither he is a hardened & desperate criminal nor a previous convict, hence, he deserve leniency in the quantum of sentence and has thus impetrated that sentence of imprisonment which the petitioner has already undergone as well as sentence of Daman amount may be deemed sufficient to meet the ends of justice.
6. Learned Addl. P.G. as well as learned counsel for the complainant has not opposed the defence counsel’s above noted contention in view of the fact that conviction is being maintained.
7. Heard. Record perused.
8. The above noted prayer made by learned counsel for the petitioner/convict is fair one. The normal punishment to be awarded to an offender for offences mentioned in Chapter XVI, PPC, is payment of Arsh or Daman and the optional/additional punishment of imprisonment as Ta’zir provided for the relevant offence could only be awarded to an offender if he is a “previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour”. In the case of such an offender the sentence of imprisonment as Ta’zir would be governed by the proviso to sub-section (2) of Section 337-N, PPC, which would not be less than one third (1/3rd) of the maximum imprisonment provided for the hurt caused. The factors which may be considered for awarding punishment as Ta’zir are the nature of the injury/hurt caused, the weapon used, the brutality or the shocking manner of the occurrence has been committed being outrageous to the public conscience, or adversely effecting harmony among different sections of the people. Both the Courts below have failed to attend to this fact of the case. Admittedly, the petitioner is a first offender, not repeated the fire shot and no issue of honour was involved in commission of the present offence. In such circumstances, in view of Section 337-N(2), PPC, he could not be burned with additional punishment by way of Tazir. In this context, reliance is placed upon case titled Abdul Wahab and others v, the State and others (2019 SCMR 516). Sentence of three years u/S. 324, PPC as awarded by learned trial Court and upheld by the learned Appellate Court, do not commensurate with the intention contained in Section 337-N, PPC and as such in the interest of justice, the same is accordingly reduced to the period which the petitioner/convict has already undergone so far including the-sentence in lieu of fine, but the Daman amount
Rs. 50,000/- u/S. 337-F(iii), PPC passed against the petitioner payable to the injured PW recorded by learned trial Court and upheld by the
learned Appellate Court, to meet the ends of justice, is enhanced from Rs. 50,000/- to Rs. 75,000/-. The petitioner is in jail. He is directed to be released in this case if not liable to be detained in any other case subject to his depositing of half of the Daman amount with the learned trial Court, besides submitting security bonds equivalent to the remaining Daman amount with one surety in the like amount to the satisfaction of learned trial Court. He shall also deposit the remaining amount of Daman within two months from today, failing which he shall be taken into custody and shall be dealt with in accordance with law.
9. For what has been discussed above, instant revision petition stands dismissed in the above terms.
(A.A.K.) Revision dismissed
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