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Petitioner: SHERA VS Respondent: THE CROWN
P L D 1954 Federal Court 141
P L D 1954 Federal Court 141
(Appellate Jurisdiction)
Present : Abdul Rashid, C. J., A. S. M. Akram, 141. Shahabuddin,
and A. R. Cornelius, Jj.
SHERA and 6 others‑Appellants
versus
THE CROWN‑Respondents
Criminal Appeal No. 29 of 1952, decided on 26th February, 1954.
(On appeal from the judgment and order of the High Court of judicature at Lahore, dated the 19th February 1951, in Criminal Appeal No. 663 and Murder Reference No. 145 of 1950).
Criminal Procedure Code (V of 1898), Ss. 423 (1) (b) (2) and 439 (4)‑--"Alter the finding"‑Accused acquitted of charge under S. 302/149 P. P. C. but convicted under S. 148 P. P. C.‑Appeal by accused‑High Court after notice to accused convicting accused under S. 302/149 P. P. C. and passing a sentence of transportation for life in exercise of revisional powers rejecting at the same time the accused's appeal so far as offence under S. 148 P. P. C. was concerned‑Conviction under S. 302/149 P. P. C., held not sustainable‑Criminal Procedure Code (V of 1898), S. 417‑Bawa Singh v. Crown I L R 1942 Lah. 129 (F B) wrongly decided.
At their trial in the Court of Session; the accused, besides other charges, were tried under sections 302/149 and 148 P. P. C. They were held not guilty of the charge under section 302/149 P. P. C. but were conviction under section 148 P. P. C. On appeal to the High Court, the accused, after being served with notices to show cause why the finding in regard to the offences committed by them be not altered to that of murder under section 302/149 P.P.C. and their sentences enhanced in revision, were convicted under section 302/149 P. P. C., the finding of acquittal recorded by the Sessions judge having thus been altered under section 423 Cr. P. C. the accused's appeal against their conviction under section 148 P. P. C. being rejected at the same time. After altering the finding, the High Court, acting on the revision side under section 439 Cr. P. C. enhanced the sentence in the case of each accused to transportation for life.
Held (per majority of Court, Akram J. contra)‑The reversal of a finding of acquittal and the substitution therefor of a finding of conviction cannot be covered by the words "alter a finding" as used in section 423.
Per Abdul Rashid. C. J.‑Under no circumstances, can the reversal of such a finding be regarded as a mere alteration. In my opinion, there is only one way of reversing a finding of acquittal, and that is for the Provincial Government to file an appeal against acquittal under section 417 of the Code.
The words "alter the finding" cannot be taken to have been used in an unrestricted sense. The Appellate Court can alter the finding only if it maintains the sentence or reduces it. It cannot isolate the words "alter the finding" and completely ignore the qualifications which make the alteration possible, that is, it must maintain the sentence or reduce it. Section 423 (1) (a) deals with appeals from orders of acquittal. A finding of acquittal can be converted into a finding of conviction only under clause (a) of subsection (1). Clause (b) of subsection (1) deals only with appeals against orders of conviction. It appears to me, therefore, to be obvious that a particular method has been provided whereby an order of acquittal can be reversed. That method and that method alone can be used for the purposes of upsetting an acquittal.
The provisions of suctions 423 and 439 of the Code cannot be availed of in such a manner as to reverse the finding of acquittal under the cloak of merely altering it.
Kishan Singh v. The King‑Emperor 55 1 A 390 ; Sarda Parshad v. The Emperor A I R 1937 All. 240 ; Emperor v. Zamir Qasim I L R (1944) All. 403 ; Naeir Ahmad v. The King‑Emperor I L R (1936) Lah. 629 ref.
Bawa Singh v. The Crown; I L R (1942) Lah. 129 wrongly decided.
Per Akram, J. (contra)‑‑An appeal is a re‑hearing and a reconsideration of the entire controversy between the contending parties unless limited in its scope by law, consequently in an appeal from a conviction on some out of the several charges, the question of acquittal on the remaining charges also comes in for consideration. The expression 'alter the finding' with reference to the context apparently means alter the finding forming the basis of a conviction under a particular section to a different finding which may result in a conviction under some other section. The fact that originally there may have been an acquittal under the other section, either expressly or impliedly, to my mind, makes no difference. I do not think that the word `reverse' instead of 'alter' would have been a better word for the purpose of conveying that meaning.
Subject to the other provisions of the Cr. P. C., namely, sections 233, 235 to 238, 423 (2) and 426, the High Court in an appeal from a conviction can under section 423 (1) (b) (2) alter an acquittal into a conviction.
The High Court on altering a finding in the exercise of its appellate jurisdiction under section 423 (1) (b) (2), can take help of section 439 and pass any legal sentence which it considers to be just and proper.
[Case law referred to.]
Per Shahabuddin, J.--‑In section 423 the powers of an appellate Court in an appeal from an order of acquittal and those exercisable in an appeal from conviction are kept distinct and separate. Clause (1) (a) deals with appeals against acquittal, and that the term acquittal in this clause refers not only to a complete acquittal but also to cases of partial acquittal is no longer a controversial point. Clause (1) (b) opens with the words 'in an appeal from a conviction' and the words 'reverse the finding' with which clause (1) (b) (2) starts can refer only to the finding of conviction. Then follows clause (1) (b) (2) which opens with the words "alter the finding maintaining the sentence". Here again 'the finding' in the context in which the expression occurs can refer only to the finding of conviction appealed from. The words ?maintaining the sentence' which cannot be dissociated from the words 'alter the finding' also point to the same conclusion, for, it is only a finding of conviction that is accompanied by a sentence. That being so, the power of alteration given under this provision is naturally in respect of a finding of conviction, and if in the exercise of that power a finding of acquittal is involved then the alteration should not be made, as otherwise a finding of acquittal would get reversed, which can be done only in an appeal filed against an acquittal.
The decision in Kishan Singh's case directly lays down that the powers under section 439 cannot be exercised to convert a finding of even a partial or implied acquittal into one of conviction. The powers of the High Court under section 439 are wider than those under section 423, as the latter can be exercised only when an appeal is filed whereas under section 439 a High Court can interfere in the interests of justice even without either party moving it. If under its wider powers the High Court cannot convert a finding of acquittal into one of conviction, it seems to follow that it cannot do the same under section 423 (1) (b) (2) also. It could not have been the intention of the Legislature that what the High Court could not do suo motu in the interests of justice, it should be able to do merely because a person who has been partially acquitted avails of his right to appeal from the conviction imposed on him.
[Case‑law referred to.]
Per Cornelius, J.--‑Where what is sought to be interfered with is an order of acquittal, or an equivalent order, the only effective mode is that provided by clause (a) of section 423 (1). The provisions of section 439 are not available, where an appeal is not preferred against an acquittal, in view of the express provisions of subsection (5) of that section. It would, in my opinion, be an unjustifiable extension of the powers conferred by clause (b) of section 423 (1) to construe this provision, which relates to appeals from convictions, in a sense enabling the Court to interfere with express orders of acquittal or their equivalent, made in the same case.
In my opinion, there is no room for doubt that the judicial Committee regarded an acquittal such as their Lordships found in Kishan Singh's case on the charge under section 302, to be equivalent in relevant respects to an order of acquittal, and it follows that such an acquittal is saved, not only from conversion into a conviction on the revisional side, but also from alteration on the appellate side, in an appeal from a conviction in the same case. It also becomes clear that such as acquittal carries the condition that the only method by which it would be possible to obtain a conviction of murder would be on appeal under section 417 Cr. P. C.
Nasim Hassan, Advocate. Federal Court, instructed by Nasir‑ud‑Din, Attorney, for Appellants.
A. R. Changez, Advocate‑General of the Punjab (C. M. Sharif, Advocate, Federal Court, with him) instructed by Ijaz Ali, Attorney, for Respondent.
Dates of hearing: January, 27 and 28 1954.
JUDGMENT
ABDUL RASHID, C. J.---The seven appellants, namely, Shera, Goman, Dullah, Walia, Allah Dad, Sadiq, and Fazal, were tried by the Sessions Judge of Montgomery on the following charges:‑
(1) Under section 148 P. P. C. for having formed an unlawful assembly with the common object of murdering Kamira and abducting Mst. Zohran and for committing rioting, armed with deadly weapons ;
(2) Under section 302/149 for having, in furtherance of the common object of their unlawful assembly, murdered Kamira, deceased ;
(3) Under section 366/149 for having, in furtherance of the common object of their unlawful assembly, abducted lust. Zohran and her infant daughter, knowing it likely that Mst. Zohran would be forced or seduced to illicit intercourse against her will; and
(4) Under section 379/149, P. P. C. for having in prosecution of their common object, committed the theft of a mare belonging to Kamira, deceased.
Walia was convicted under section 302 of the Pakistan Penal Code and sentenced to death. All the accused were convicted under section 148 and sentenced to six months' rigorous imprisonment each. Goman was also convicted under section 379 and given a sentence of six months' rigorous imprisonment.
All the convicts preferred an appeal in the High Court of Judicature at Lahore After the appeal had been preferred a notice was issued to all the convicts, other than Walia, to show cause why the finding in regard to the offences committed by them be not altered to that of murder and their sentences enhanced in revision. The learned judges of the High Court accepted the appeal of Walia in part and reduced his sentence for shooting down Kamira from that of death to one of transportation for life. While disposing of the appeal of the other six convicts all of whom had been convicted under section 148 of the Pakistan Penal Code, the finding of acquittal recorded by the Sessions judge in their favour for an offence under section 302/149 was altered under section 423 of the Criminal Procedure Code, and they were held guilty of murder. After altering the finding, the learned judges; acting on the revision side under section 439 of the Code, enhanced the sentence in the case of each of these six convicts to transportation for life. The convictions and sentences under sections 148 and 379 as imposed by the Sessions judge were affirmed. The convicts have preferred this appeal by special leave of this Court.
Mst. Zohran, a sister of Shera appellaut, was married to Alam several years ago. Two or three years before the murder Kamira deceased abducted Mst. Zohran and took her away. After some time a compromise was arrived at between Alam and Kamira to the effect that Alam was to divorce Mst. Zohran and Kamira was to retain her. In return, Kamira was to give his niece Mst. Mehran in marriage to Alam. As a result of this compromise Mst. Mehran was married to Alam, but the marriage was not consummated because Mst. Mehran continued to live with her parents and was not sent to the house of her husband. Alam thus had a grievance against Kamira. He brought Mst. Zohran to his own house about a year before the occurrence but Kamira again abducted her. On the 2nd of June, 1950, Kamira was murdered. At that time 161st. Zohran was living with him in his house. At about sunset time the seven appellants appeared outside the house of Kamira. Walia, Sadiq and Fazil had rifles; Goman and Allah Dad pistols; and Shera and Dullah were armed with spears. Goman fired his pistol in the air and stood guard at the door, while the others entered the house of Kamira. Kamira and Mst. Zohran ran into a room and chained the door from inside. This door was broken open by Shera and Dullah with their spears. Walia then fired three shots from his rifle, two of which missed their victim, but the third hit Kamira in the head. Mst. Zohran was then dragged out of the house, put on a mare, and taken away together with the baby she was carrying.
The learned Sessions judge held that the common object of the assembly was to take away Mst. Zohran. Shera is the brother of Mst. Zohran and Allah Dad accused is her uncle. There was no evidence at all to show that they wanted to carry away Mst. Zohran in order to seduce her to illicit intercourse or knowing‑it likely that she would be seduced to illicit intercourse. They abducted her because the deceased and her family had broken their promise regarding Mst. Mehran. Mst. Zohran was taken away in the interest of her husband. In these circumstances, none of the accused could be convicted under section 366. According to the Sessions Judge, Walia accused seems to have gone far beyond the original intention, that is, the abduction of Mst. Zohran. He alone was guilty under section 302 of the Pakistan Penal Code. All the accused were, however, guilty under section 148 of the P. P. C.
The first and the most important question for consideration in this case is whether the appellants other than Walia can be convicted of an offence under section 302/149 of the P. P. C. All the convicts were charged under this section. Walia was convicted for his individual act of shooting Kamira under section 302. None of the other convicts was convicted under section 302/149. All of them were awarded a sentence of six months' rigorous imprisonment under section 148. It has been held by their Lordships of the Privy Council in the case of Kishan Singh v. The King‑Emperor (55 I A 390.) that when a person is tried for the offence of murder under section 302 of the Penal Code and is convicted under section 304 of culpable homicide not amounting to murder his conviction for the lesser offence amounts to an acquittal on the charge' of murder, and that consequently sec?tion 439, subsection (4) of the Criminal Procedure Code precludes the High Court from having jurisdiction upon revision to convict the accused of the charge of murder. In the reported case, Kishan Singh had been tried on a charge under section 302, but had been sentenced to five years' rigorous imprisonment under section 304 P. P. C. He did not prefer an appeal in the High Court. The Provincial Government did not appeal under section 417 of the Cr. P. C. but applied for revision on the ground that the appellant should have been convicted of murder and that the sentence was inadequate. In these circumstances, their Lordships held that the learned judges of the High Court in converting the finding of acquittal of the appellant on the charge of murder into one of conviction and in sentencing him to death on the application for revision were acting without jurisdiction, and that in such circumstances it was impossible to hold that no injustice was done.
It was conceded on behalf of the Crown that if the convicts bad not preferred an appeal in the High Court in the present case, they could not have been convicted under section 302/ 149 of the P. P. C. on the revision side in view of the observa?tions of their Lordships in Kishan Singh's case (55 I A 390). It was, however, urged that as the convicts bad preferred an appeal in the High Court the High Court acquired jurisdiction under section 423 Cr. P. C. to alter the finding of acquittal on the charge of murder to one of conviction. Thereafter, the High Court could, in the exercise of its powers of revision, impose a sentence of transportation for life under section 302/149, and that the imposition of this sentence on persons who were acquitted of the charge under section 302/149 would merely amount to an enhancement of the sentence. Reliance was placed in this con?nection on the Full Bench decision of the Lahore High Court in the case of Bawa Singh v. The Crown (I L R (1942) Lah. 129.) In this case, it was held that the High Court is competent in the exercise of its appellate jurisdiction to alter the finding against a convict from one under section 304, Part I, to a finding that the conviction should be under section 302, and then in the exercise of its revisional jurisdiction under section 439 of the Cr. P. C. enhance the sentence to one of death or transportation for life. This decision in terms is inapplicable to the facts of the present case. Six out of the seven convicts were acquitted of the charge of murder under section 302/149 of the P. P. C. They were sentenced only for an offence under section 148. The offence of rioting falls under Chapter VIII of the P. P. C. which deals with offences against the public tranquillity. Offences under sections 304 and 302 fall under Cuapter XVI which deals with offences against the human body. In these circumstances, can it be said that by convicting these appellants under section 302/149 the High Court were merely altering a finding as envisaged in section 423 (1) (b) (2) of the Criminal Procedure Code ? In my opinion, the reversal of a finding of acquittal and the substitution there?for of a finding of conviction cannot be covered by the words, "alter a finding" as used in section 423. In the Full Bench decision of the Lahore High Court. Sale J. observed as follows :‑
"The ordinary meaning of the word "reverse" is to "annul", or turn into something completely opposite in character, whereas "alter" is a less radical expression and means "change in form", without changing the underlying character of the thing to be changed.
"Applying the ordinary meaning of these words. I would say that "reversal" connotes the complete annulment of a finding of guilt or innocence (as the case may be) by the trial Court so as to convert a decision that a man is innocent into a finding of guilty or vice versa: whereas "alteration", while maintaining the essential character of the finding, envisages only a change in form, that is, in the case of a conviction in the degree of guilt."
It is clear that even according to the Full Bench decision of the Lahore High Court the learned judges in this case reversed the finding of acquittal under section 302/149 and substituted in its place a finding of conviction under the same section. Under no circumstances, can the reversal of such a finding be regarded as a mere alteration. In my opinion, there is only one way of reversing a finding of acquittal, and that is for the Provincial Government to file an appeal against acquittal under section 417 of the Code. On this ground alone, I would accept the appeal of six of the convicts and hold that their conviction under section 302/149 cannot be sustained.
I am of the opinion that the case of Bawa Singh v. The Crown (I L R (1942) Lah. 129) was wrongly decided. Section 423 (1) is in the following terms :‑
"(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if appears, and, in case of an appeal under section 41,1‑A, subsection (2), or section 417, the accused, if he appears, the Court may if it considers that there is no sufficient ground for interfering dismiss the appeal, or may‑--
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on hint according to law ;
(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried, by a Court of competent jurisdiction subor?dinate to such Appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence "
The words "alter the finding" cannot be taken to have been used in an unrestricted sense. The Appellate Court can alter the finding only if it maintains the sentence or reduces it. It cannot isolate the words "alter the finding" and completely ignore the qualifications which make the alteration possible, c that is, it must maintain the sentence or reduce it Section 423 (1) (a) deals with appeals from orders of acquittal. A finding of acquittal can be converted into a finding of conviction only under clause (a) of subsection (1). Clause (b) of subsection (1) deals only with appeals against orders of conviction. It appears to me, therefore, to be obvious that a particular method has been provided whereby an order of acquittal can .be reversed. That method and that method alone can be used for the purposes of upsetting an acquittal. This follows from the decision of their Lordships of the Privy Council in the case of Nazir Ahmad v. The King-?Emperor (I L R (1936) Lah. p. 629) Their Lordships expressly laid down "that where a power is given to do a thing in a certain way, the thing must ‑be done in that way or not at all Other methods of performance are necessarily forbidden." This rule was applied by the judicial Committee to the recording of confessions under section 164 of the Criminal Procedure Code. But it applies with equal force to the provisions of sections 417 and 423 of the Code. Sections 417 and 423 (1) (a) prescribe the method of securing a reversal of an order of acquittal. Such a reversal cannot be allowed to be secured by resorting to the provisions of section 423 (1) (b) read with section 439 of the Code.
Section 439 of the Criminal Procedure Code authorizes the High Court to enhance a sentence. This is, however, subject to the qualification that the High Court cannot revert a finding of acquittal into one of conviction. It appears to me to be illegal to alter the finding in exercise of the powers under section 423 of the Code and disregard the qualifications attached to the words "alter the findings", and then to resort to subsection (4) of section 439 to enhance a sentence in such a manner as to convict a person of an offence of which he has been acquitted. Such a procedure is incomplete violation of the provisions of sections 417 and 423 (1) (a) of the Code. The provisions of sections 423 and 439 of the Code cannot be availed of in such a manner as to reverse the finding of acquittal under the cloak of merely altering it.
There is a conflict of judicial opinion on the question whether a Court of Appeal is empowered under section 423 (1) (b) (2) to alter a finding of acquittal into one of conviction. Some High Courts have held that the Appellate Court cannot alter the finding of conviction appealed from in such a way as to set aside a finding of acquittal recorded by the trial Court in respect of a more serious offence. Subsection (1) (b) of section 423 Cr. P. C. according to this view, is not applicable to a case where there is an express order of acquittal. In such a case, the accused cannot be convicted of the offence of which he has been acquitted without appeal by the Provincial Government. Interference with the order of acquittal would amount to a reversal of the finding, and the Appellate Court cannot usurp this power by regarding such reversal as a mere alteration of the finding. The other view is that a Court of Appeal is empowered under section 423 (1) (b) (2) of the Code to alter a finding of acquittal into one of conviction even though the Provincial Government has not preferred any appeal against the order of acquittal under sec?tion 417. I consider it unnecessary to deal with the various cases cited at the Bar to support these different points of view. I have no hesitation in holding that the former view is a correct statement of the law, and that the decision of the Full Bench of the Lahore High Court in the case of Bawa Singh (I L R (1942) Lah. 129) does not lay down the law correctly.
The powers conferred on an Appellate Court under section 423 (1) (b) can be availed of by a Sessions judge in the exercise of his appellate jurisdiction.…
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