1991 PLP 1165 (MLD)

Ss.561-A & 439-A

Penal Code (XLV of 1860), Ss. 326 & 324

Sessions Court had no power to convert the conviction of accused from a minor offence to a major offence i.e. from S.324, P.P.C. to 5.326, P.P.C. in revision filed by complainant under S.439-A, Cr.P.C.

Proper course for Sessions Court was to set aside the judgment of Trial Court and remand the case for retrial

Appellate Court's judgment in revision was consequently set aside

Retrial of accused, however, was not directed after about nine years of occurrence particularly when he had suffered agony of protracted trial and imprisonment as undertiral prisoner and a convict. Malik Noor Muhammad Awan for Petitioner. Shaukat Hussain Awan for the State. Date of hearing: 19th February, 1991. Petitioner was tried under section 326, P.P.C. for causing grievous injury to Muhammad Aslam PW. On the conclusion of the trial, he was convicted under section 324, P.P.C. and sentenced to imprisonment till rising of Court, and a fine of Rs.2500, in default thereof 4 months' R.I. He filed appeal against his conviction and sentence. The complainant also filed revision for the enhancement of sentence before the learned Sessions Judge. The appeal and revision were disposed of through single order, whereby the appeal of the petitioner was dismissed and while accepting the revision under section 439-A, Cr.P.C., the learned Additional Sessions Judge, convicted the petitioner under section 326 P.P.C. and sentenced him to 3 years' R.I. and a fine of Rs.5000, in default thereof 4 months' R.I.

2. Learned counsel for the petitioner has requested that since the order made by the learned Addl. Sessions Judge under section 439-A Cr.P.C. cannot be challenged in second revision, therefore, the present revision be treated as an application under section 561-A, Cr.P.C. In the circumstances, the request seems to be reasonable. So, this revision will be treated as application under section 561-A, Cr.P.C. As for the merits of the case, the learned counsel submits that the Appellate Court had no jurisdiction to convert the conviction of the petitioner from section 324, P.P.C. to 326, P.P.C., which is a major offence. Learned counsel for the State has frankly and rightly conceded.

3. I have considered the matter carefully. I agree with the learned counsel for the petitioner. There can be no two opinions that the learned Additional Sessions Judge had no power to convert the conviction from a minor offence to a major offence. The proper course for him was to set aside the judgment of the trial Court and remand the case for retrial. So the judgment of the appellate Court is set aside. Now the question arises as to whether or not the case should be remanded for retrial. I feel that the occurrence took place in the year 1982; that the petitioner was sent to jail thrice and he has also suffered agony of protracted trial and imprisonment as undertrial prisoner and a convict. So it would not be proper to direct retrial after about 9 years of the occurrence. Disposed of accordingly. N.H.Q./M-2724/L Order accordingly.