PLD 1958 Azad J & K 11 (PLP)

ABDUL HAMID KHAN J.

‑ This is a revision petition against the order of the Sessions Judge Muzaffarabad dated 17th August 1957 whereby the conviction of the accused by the trial Court by order dated 1st June 1957 under section 411, A P C was altered to one under section 380 A P C. The sentence of imprisonment to 2 years' rigorous imprisonment awarded by the trial Court was however main tained but the fine was reduced from Rs. 300 to Rs. 30 each or in default of payment of fine further rigorous imprisonment for 10 days was ordered. According to the prosecution the accused petitioner stole a mare and a horse from one Gulistan from a place in Pakistan and brought the mare to Muzaffarabad and knowing it to be a stolen property sold it for Rs. 140 to Mirza Bakarwal from whom it was recovered by the Police. Gulistan, Mohd. Afsar, and Mirza appeared before the trial Court in support of the prosecution version and the accused petitioner also admitted the guilt. The result was that the trial Court held the accused guilty under section 411, A P C and sentenced them to 2 years' rigorous imprisonment and Rs. 300 fine each or in default of payment of fine to further rigorous imprisonment of 2 months each. On appeal the Learned Sessions Judge altered the conviction to one under section 380 A P C and though main taining the sentence of imprisonment reduced that of the fine to Rs. 30 each. As for the guilt of the 2 petitioners there is independent evidence on record as also the admission of the accused which prove the prosecution version, beyond any doubt. The question involved in the revision petition is whether the learned Sessions judge could in appeal alter the conviction from one under, section 411 A P C to one under section 280 A P C and secondly whether in case the Sessions judge could not do so, this Court can rectify the mistake committed by the Sessions judge. Legally the alteration of conviction under section 411 A P C to one under section 380 A P C is incorrect. Although the offences under sections 380 A P C and 411 A P C are cognate offences, still the offence under section 380 A P C being a major offence the conviction should not have been altered from a minor offence under section 411 A P C to major offence under section 380 A P C. Under section 423 (b) (2) Criminal P. C. the appellate Court can alter the finding maintaining the sentence, or, with or without altering the finding reduce the sentence but this power is no doubt limited by the general principle that the appellate Court cannot come to any finding which the lower Court cannot legally come to. The words "may alter the finding" in the section though general, must be construed in harmony with other provisions of the Code. Minor and major offences are not defined in the Code of Criminal Proce dure and therefore the terms are to be taken in their ordinary sense and not in any technical sense. The gravity of the offence must depend on the severity of the punishment that can be inflicted and the major and minor offences must be cognate offences with the main ingredients in common, and hence the offence for which severer punishment is provided in law would be considered major to the one for which lighter punishment U provided. The punishment provided for an offence under section 380, A P C is more severe than the punishment provided under section 411, A P C and would therefore be considered a major offence as compared to an offence under section

411. The Sessions judge could not, there fore alter the conviction from one under section 411, A P C to one under section 380, A P C for which no charge had been framed against the accused. This view is supported in Nga Po Kgin v. King Emperor (A I R 1921 Lower Burma 36.). The alteration of charge from one under section 411, A P C one under section 380, A P C does not and cannot amount to acquittal of the accused of the offence under section 411, A P C because the Sessions judge nowhere held that the ingredients constituting the offence under section 411, A P C had not been approved. He merely altered the charge under the impression that section 380, A P C was more appropriately applicable to the case. Since the learned Sessions judge was not legally competent to do so and there is no bar in the way of this Court to rectify the mistake the finding of the Sessions judge is set aside and that of the trial Court is restored. However, the sentence awarded by the trial Court is considered rather harsh and is reduced to 1i years rigorous imprisonment and Rs. 30 fine or in default of payment of fine to ten days further rigorous imprisonment under section 411, A P C. To this extent the revision petition is accepted. K. M. A. Revision partly accepted.