P L D 1954 Baghdad﷓ul﷓Jadid 45 (PLP)

ABDUL HAMID, J. (FAIZ MUHAMMAD, C. J. concurring). The appellants, whose names are noted in the margin (Mouj Ali, Minhal, Rahman) were charged with the offence of murder (section 302 P. P. C.) but were convicted under section 304 (2) and sentenced .to 5 years rigorous imprisonment each by the learned Sessions Judge, Rahimyarkhan. Against their convic tions and sentences the appellants preferred an appeal to the High Court through Sheikh Nisar Ahmad. The learned Govern ment Advocate who represented the Crown, presented an application under section 423 (1) (b) and section 439 Cr. P. C. stating that the facts on record warranted the conviction of the appellants under section 302 P. P. C. It was, accord ingly, prayed that the High Court should as a Court of appeal convert the finding of acquittal into one of conviction under section 302 P. P. C. and then as a Court of Revision under section 439 Cr. P. C. enhance the sentence so as to make it appropriate to the altered finding. Notice was given to the appellants to show cause why they should not be convicted of murder and be sentenced for the offence. The appeal preferred by the appellants and the application of the learned G. A. referred to above came up for hearing before a ‑Division Bench consisting of my Lord the Chief justice and myself. It was strenuously urged by the learned counsel for the appellants that the High Court was not empowered, when hearing an appeal against conviction, as a Court of Appeal under section 423 (b) Cr. P. C. to alter the finding of acquittal into one of conviction. It was pleaded that as the Government had failed to file an appeal under sect ion 417 Cr. P. C. against the acquittal of the accused under the main charge (section 302 P. P. C.), it was not open to the learned G. A. to invoke the, revisional powers of the High Court under section 439 Cr. P. C. On the other hand it was tenaciously and vigorously urged by the learned G. A. that the combined effect of sections 423 and 439 Cr. P. C. empowers the High Court to convert the finding of acquittal into one of conviction and to enhance the sentence. A number of cases were cited at the Bar, the perusal of which showed that there was a serious conflict of Authority on the point whether a High Court, when hearing an appeal against the conviction can as a Court of Appeal under section 423 (b) alter the finding and then as a Court of Revision under section 439 enhance the sentence. Considering that the point involved was of considerable importance and of daily occurrence, we thought it desirable to have an authoritative pronouncement on the point in question and therefore were referred the following point for decision to the Full Bench :‑ "Whether it is open to the High Court as an appellate Court, in an appeal from a conviction by a convict who has been charged under section 302 but convicted under section 304 (2) P. P. C. to alter the conviction from the latter section to the former and then by virtue of section 439 Cr. P. C. to enhance the sentence". It has now come up for decision before this Full Bench. At the outset the learned counsel for the appellants brought to our notice a recent ruling of the Federal Court reported as 1954 P L D Lah.

141. We are glad to note that the cleavage of opinion which prevailed among the various High Courts on the point in question has been set at rest by the well considered judgment of the Federal Court. It was held (per majority of Court) that the reversal of a finding of acquittal and the substitution therefore of a finding of conviction cannot be covered by the words "alter a finding' as used in section 423 Cr. P. C. It was further observed by His Lordship (Abdul Rashid, C. J.) that :- "Udder no circumstances, can the reversal of such a finding be regarded as a mere alteration. In my opinion, there ins 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 insolate the words `alter the finding' and completely ignore the qualifications which, made 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 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." Although we are not bound by the Federal Court judgment, yet it is entitled to great respect and we respect fully agree with it. The net result is that a High Court is not empowered to alter the finding of acquittal into one of conviction under section 423 (b). For the foregoing reasons our answer to the question referred to us for decision is in the negative. ABDUL RASHID, J.‑I agree.