MOHAMMAD SHAFIQUE Vs. STATE

JUDGEMENT

(1.) This is an application in revision by one Mohammad Shafiq from judgments of the Courts below convicting him under Section 5 of the Influx from Pakistan (Control) Act (No. XXIII), 1949. The trial Court sentenced him to rigorous imprisonment for 9 months and the appellate Court reduced the sentence to 6 months. We may point out that this reduction was a misuse of the power of the appellate Court to interfere with sentences. The disparity between the sentence inflicted by the trial Court and that inflicted by the appellate Court was not so great that the appellate Court would be justified in interfering with the sentence, which was at the discretion of the trial Court and which could not be interfered with unless the appellate Court held that the discretion had been exercised arbitrarily or erroneously.

(2.) There is no controversy about the facts. Sometime in June 1948, the applicant went from India to West Pakistan. On 19-7-1948 the Influx from the West Pakistan (Control) Ordinance (No. XVII), 1948 (to be referred as Ordinance No. XVII was enacted by the Central Government. Section 3 of it prohibited any person from entering into India from West Pakistan without being in possession of a permit and authorized the Central Government by a notification published in the official gazette to make rules prescribing the authorities by whom permits may be issued, the conditions to be satisfied by the applicants for such permits, the forms and classes of such permits and for any other matters ancillary or incidental to the carrying out of the purpose of the Ordinance. Section 4 of it was to the effect that,

(3.) The applicant admitted that he had obtained a temporary permit for return to India, that on 14-8-1948 he applied to the High Commissioner for India in Pakistan for permission to reside permanently in India and that he stayed on in India even after the expiry of the temporary permit. The learned Magistrate charged him with committing an offence punishable under Section 4 of Ordinance XVII read with Rule 12 of the Permit System Rules of 1948, Section 9(2) of Ordinance No. XXXIV and Section 9(2) of Act No. XXIII of 1949 by not returning to Pakistan on or before 26-9-1948. He convicted him under Section 5 of the Act of 1949. The appeal of the applicant was dismissed by the Sessions Judge.