Law: Criminal Procedure Code (V of 1898)

Section: 561-A,439,439-A

Law: Prohibition (Enforcement of Hadd) Order, 1979

Section: 3,4,24

Criminal Procedure Code, 1898 (V of 1898)--

—-S.561-A read with Sections 439 and 439-A and Prohibition (Enforcement of Hadd) Order, 1979, Articles 3, 4 and 24--Heroin--Recovery of--Conviction for- -Enhancement of sentence in appeal-Challenge to- ower of enhancement of sentence under Section 439(1) is subject to restriction contained in Section 439(2) that no order can be made to prejudice of accused unless he has had an opportunity of being beard- rovision of Section 439(2) seems to have been violated in this case-Mere fact that appellants presence is marked on order sheet, does not mean that he knew that court was going to enhance sentence- Held:  etitioner was not afforded any opportunity of hearing which has resulted into miscarriage of justice-Petition accepted.   [Pp.l05106]AB 

PLD 1966 SC 126,1974 SCMR 386, AIR (33) 1946 Calcutta 452 and AIR 1961

Bombay 261 rel.

JUDGMENT

This petition under Section 561-A of the Criminal Procedure Code has been filed in the following circumstances:-

2. On 17.1.1991 at 15.30 hours Sher Bahadar petitioner herein while travelling in a Suzuki was trapped by the police and found in possession of one gram of heroin. He was interrogated and led the police to his quarter wherefrom another five grams of heroin was recovered on the same day at 16.15 hours. In two different cases registered against him under Sections 3/4/24 of the Prohibition (Enforcement of Hadd) Order, 1979 vide FIRs No.10 and 11 dated 17.1.1991 at Police Station, Chitral, he was tried in the court of SDM Chitral, where he pleaded guilty to the charge. The trial court in the case registered vide FIR No.ll sentenced the petitioner to 3 days R.I. and to pay a fine of Rs.200/- vide order dated 20.1.1991. Vide order dated 21.1.1991 in case FIR No.10 he was awarded punishment of one day R.I. and a fine of Rs.500/-. The State filed revision petition before the learned Sessions Judge, Chitral against the orders of the learned SDM. The revision petition against the order dated 21.1.1991 in case FIR No.10 was dismissed, while the revision petition against the order dated 20.1.1991 of the learned SDM, Chitral in case FIR No.ll was accepted and the punishment of 3 days R.I. was enhanced to 6 months R.I. and fine to Rs.2,000/-. The petitioner is aggrieved of the order of enhancement of his punishment and through this petition has invoked inherent powers of this court under Section 561-A Cr.P.C. in order to secure the ends of justice.

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