P L D 1958 (W (PLP)

CHANGEZ,J.‑This reference has been trade by the Additional Sessions Judge, Montgomery, in the following circumstances. Akram respondent and his two brothers, Rashid and Muhammad Khan, and their cousin, Bashir, were convicted by Mr. M. A. Majid, Magistrate 1st Class with section 30 powers, of an offence under section 307/34, P. P. C., and whereas the other three accused were sentenced to three years' rigorous imprisonment each, Akram was ordered under section 562 (1), Criminal P. C., to furnish a personal bond in the amount of Rs. 5,000 with one surety . in the like amount for keeping the peace and to be of good behaviour for a period of three years. They were also convicted under section 423/34, P. P. C., and each . of them was sentenced to detention till the rising of the Court and to pay a fine of Rs. 50 or in default to undergo two months' rigorous imprison ment. On appeal the learned Additional Sessions Judge upheld their convictions and dismissed the appeal on the 2nd of August 1956. He also held that the sentences awarded to the accused were grossly inadequate and submitted the. case to this Court with the recom mendation that the sentences be suitably enhanced. Rashid, Muhammad Khan and Bashir accused filed a revision petition but the same was dismissed by Mr. Justice Akhlaque Husain on the 12th of March 1957.

3. When this reference came up 'for preliminary hearing, Mr. Justice Muhammad Ya Ali issued notice' 'to Akram respondent alone to., show,' cause why his, sentence' under section 307/34, P. P. C. should riot be enhanced.

4. Akram respondent has appeared and has shown cause through his counsel Mr. Ghulam Hussain Butt.

5. The first question which requires to be determined is whether the order passed . by the trial Magistrate under section 562 (1), Criminal P. C. was legal. An offence under section 307, P. P. C., when hurt is also caused, as in the present case, is punishable with transportation for life or with imprisonment of either description for a term which may extend to ten years. In, order to give the Court jurisdiction to release an offender under section 562 (1), Criminal P. C., if he is below 2,1 years of age, the following con ditions are necessary :‑ (1) The accused must by a first offender ; and (2) The offence should be one not punishable with death or transportation for life. It is not disputed that Akram respondent was 18 years of age when he was convicted under section 307/34, P. P. C. As one of the alternative punishments for this offence is transportation for life, section 562, Criminal P. C. had no application to his case. It is a matter for regret that a senior and experienced Magistrate should have applied this section to such a case. It is now well settled that the expression "punishable with death or transportation for life" is to be read disjunctively so as to include offences punishable with death only or with transportation for life only or with death or transportation for life in the alternative. They are not limited to such offences only as are alternatively punishable with death or transportation for life. The language of section 562, Criminal P. C. is so plain that it does not admit of any ambiguity. Although in the circumstances no authority is needed for this proposition, but if necessary, reference in this connection may be made to Emperor v. Bahawali (A I R 1928 Lah. 92) ; Emperor v. Bakhsha (A I R 1934 Lah. 131) ; Emperor v. Mst. Janki (A I R 1932 Nag. 130) and Public Prosecutor v. Paneswara Rao (A I R 1946 Mad. 173). It is therefore, clear that the trial Magistrate had no jurisdiction to pass the order under section 562, Criminal P. C. It is not merely a case of the order being inappropriate, as the learned Additional Sessions Judge thought it to be ; the order is illegal on the face of it. Learned counsel for the respondent has conceded this point before me and has nothing to urge to the contrary. I accordingly set aside the order of the learned Magistrate whereby Akram respondent was bound down under section 552, Criminal P. C.

6. The next question that arises is what sentence should be imposed on the respondent. But before deciding this question another interesting point has arisen which requires consideration. The point is: Is the respondent entitled to show cause against his conviction ? This question is not free from difficulty. It is an important question and so far has not been the subject matter of adjudication by our High Court. The relevant provisions which call for consideration in this connection are these. Section 562 (1) of the Code of Criminal Procedure provides that if the conditions stated in the section are fulfilled then the Court may instead of sentencing the offender at once to any punishment direct that he be released on his entering into a bond with or without sureties to appear and receive sentence when called upon during such period not exceeding three years as the Court may direct and in the meantime to keep the peace and be of good behaviour. Under subsection (2) of section 562, Criminal P. C., any Appellate Court or the High Court, when exercising its powers of revision, can also pass such an order. Subsection (3) of section 562, Criminal P. C., is in the following terms :‑ "When an order has been made under this section in respect of any offender, the High Court may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law Provided that the High Court shall not under this subsection inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted." It will thus be seen that the High Court, in the exercise of its powers of revision, can set aside an order passed under section 562 (1), Criminal P. C., and in lieu thereof can pass sentence on such c offender according to law.

7. It will have been noticed that when an order is passed under section 562 (1), Criminal P. C. no sentence is imposed on the offender. And when the High Court, in the exercise of its revisional jurisdiction, proposes to set aside such an order and to pass a sentence in lieu thereof, the order being prejudicial to the accused he is entitled to an opportunity of being heard as provided by subsection (2) of section 439, Criminal P. C. which says :‑ "No order under this section shall be made to the prejudice of the accused unless he has an opportunity of being heard either personally or by pleader in his own defence."

8. The question at once arises whether the accused is also entitled to show cause against his conviction as provided by sub section (6) of section 439, Criminal P. C. which runs as follows :‑ "Notwithstanding anything contained in this section, any con victed person to whom an opportunity has been given under subsection (2) of showing cause why his sentence should not be enhanced small, in showing cause, be entitled also to show cause against his conviction." But as discussed above no sentence had been imposed on the accused and, therefore, strictly speaking it is not a case of enhancement of sentence.

9. I have been able to find out two rulings which lay down that in circumstances like these the accused has no right to show cause against his conviction. The first case is Emperor v. Miro Ghulam Husain (A I R 1939 Sind 339), where a D. B. of the Sind Judicial Commissioner's Court, while dealing with the precise question, observed as follows :‑ "So it is clear to us that under section 562, Criminal P. C. when an accused is released on probation of good conduct no sentence is passed by the Court. Therefore, when, as under section 562 (3) we are entitled to do, we set aside an order and pass a sentence in lieu thereof, it cannot be said that we enhance a. sentence within the meaning of section 439 (6), Criminal P. C. and however unfair this may appear to the learned advocate, we are here to interpret the law and not to make it. Therefore, we are not prepared to hear the learned advocate upon the merits of the case, though we have heard him on all matters material to the question before us, that is the passing of a sentence of imprisonment in lieu of the order passed by the Magistrate under section 562, Criminal P. C." That was a case of cattle‑lifting which had been referred to the High Court by the District Magistrate for passing a sentence under section 562 (3) of the Code of Criminal Procedure in lieu of the order ;passed under section 562 (1) of the Code of Criminal Procedure. The other case is in re : Varadaraja Padayachi (A I R 1943 Mad. 521), where Horwill J. dealing with a similar question observed as follows :‑ "1 do not. think this revision case should be regarded as one for enhancement of the sentence, entitling the accused to agitate findings of fact ; but even if it were, I should have no hesitation in agreeing with the findings of the Courts below for the accused was found in possession of stolen property and he admitted to the village Magistrate that he had stolen that property from the house of the complainant". In this case the offender was over 21 years of age and was con victed of an offence under section 454 of the Penal Code which is punishable with ten years' rigorous imprisonment but was released under section 562, Criminal P. C. His appeal was dismissed by the Sessions Judge who submitted the case to the High Court with a recommendation that the order passed under section 562, Criminal P. C., be set aside and proper sentence be passed in lieu thereof. The order under section 562, Criminal P. C. was held to be illegal and the above observations were made when an attempt was made to show cause against his conviction.

10. I have not been able to find any other authority on the subject. However, in Jangal Prasad v. The State (A I R 1953 S C 467), it was held by a Division Bench of the Supreme Court of India "that whether it was an enhancement or not, on the whole, the High Court should not have passed the order radically changing the mode of punishment and seriously affecting the accused without giving him an opportunity to show cause against it." In that case the accused, aged 18 years, was convicted under section 377 of the Penal Code but being the first offender was awarded ten stripes under section 4 (b) of the Whipping Act in .lieu of sentence. The conviction and sentence were upheld by the Sessions Judge but in revision the Madhya Pradesh High Court held that the sentence of whipping was illegal since the accused was not juvenile offender and sentenced him to nine months' rigorous imprisonment. It appears that the sentence had been awarded by the High Court without giving a notice to him. It was contended on behalf of the State that there was no question of enhancement of sentence in the case because the High Court had set aside an illegal sentence which was a nullity and had imposed a proper sentence. Repelling this contention the above quoted observations were made by the Supreme Court and the sentence was set aside and the case was remanded to the High Court for its disposal according to law. This case is of course distinguishable but it throws some light on the subject in hand.

11. I have very carefully studied the relevant provisions of law. By the addition of subsection (3) to section 562, Criminal P. C. any doubt as to whether a High Court in revision had power to set aside an order of release and pass a sentence in lieu thereof was removed. When there is an appeal before the High Court, then there is no difficulty because the accused has the right to challenge the finding of the trial Court and in doing so can show cause against his conviction and in case his conviction is upheld the power is given to the High Court under section 562 (3), Criminal P. C. to set aside the order passed under section 562, Criminal P. C. and to pass a sentence in accordance with law. But, when the matter comes up in revision before the High Court then also it can set aside the order passed under section 562, Criminal P. C., and can pass a sentence in lieu thereof in accordance with sub section ,(3) of section 562, Criminal, P.C. But in my opinion such a power can be exercised only after complying with the necessary ‑conditions laid down‑ in section 439, Criminal P. C. The first condition is that such an order being prejudicial to the accused he is entitled as of right to have an opportunity of being heard to his defence as provided by subsection (2) of section 439, Criminal P. C: Jangal Prasad v. The State quoted above is an authority in support of this proposition and although in that case subsection (2) of section 439, Criminal P. C. has not been speci fically, referred. I think there can be no manner of doubt that subsection (2) of section 439, Criminal P. C. is fully applicable to a case where the High Court proposes to set aside an order passed under section 562, Criminal P. C. and wishes to impose a sentence in lieu thereof.

12. But the question is whether he is also entitled to the benefit of the second condition i.e., of showing cause against his con viction ? Did the Legislature intend that when imprisonment is awarded or the offender is sentence to pay a fine, then if a notice is issued for enhancement of sentence, the offender is entitled under subsection (6) of section 439 Criminal P. C. to show cause against his conviction, but if an order has been passed under section 562 (1), Criminal P. C. and no sentence is passed, and when the matter comes up in revision before the High Court for passing a sentence in lieu of the order passed under section 562 (1), Criminal P. C.; he is deprived of his rights of showing cause against his conviction. In my opinion the expression "enhancement of sentence" includes passing of a sentence in lieu of an order passed under section 562 (1), Criminal P. C. In determining the meaning of this expression the intention which appears to be most in accord, with convenience, reason, justice and legal principle, should be presumed to be the true one. If a construction is to be placed on these words, so as to exclude the case of a person on whom sentence is imposed in lieu of an order passed under section 562 (1), Criminal P. C., it would not only lead to an absurdity but would also lead to great injustice to the accused. Such an interpretation is calculated to prejudice the accused and should as far as possible be avoided. I an accused after having been bound down under section 562 (1), Criminal P. C., does not file an appeal against his conviction, feeling that he has been leniently dealt with or being unable to incur any further expense, it appears to be very unjust that when the matter comes up in revision before the High Court he isl deprived of showing cause against his conviction although he may be exposed to the risk of being sentenced to transportation for life for the first time. In my opinion, to place such a narrow and rigid construction on the expression "enhancement of sentence" will amount to doing violence to the language and will be opposed to all canons of justice.

13. For the aforesaid reasons, but with the greatest respect to the learned Judges who decided the above‑mentioned cases, I venture to differ from their views, and hold that whenever the matter comes up in revision before the High Court for setting aside an order passed under section 562 (1) of the Code of Criminal Procedure and for passing a sentence in lieu thereof, the accused. is not only entitled to have an opportunity of being heard in his defence as provided by subsection (2) of section 439, Criminal P. C. but is also entitled to show cause against his conviction as pro vided by subsection (6) of section 439, Criminal P. C.

14. In this view of the matter, I have given full opportunity to the respondent to show cause against his conviction, and his counsel has taken me through the evidence on the record in an attempt to show that the conviction of the respondent under section 307/34, P. P. C.. is not justified.

15. Briefly summarised the case for the prosecution is that about a year before the occurrence, Mst. Rashida, a sister of Akram respondent, had been enticed away by Mullammao Ishaq (P. W. 9) but through the influence of the village respectables was restored to her parents. Nawab Khan (P. W. 1) and his brother Muhammad Ashraf (P. W. 2) were friends of Muhammad Ishaq and Akram and his relations entertained a suspicion that they had a hand in the abduction of Mst. Rashida. On the 29th of October 1955 they came to the house of Nawab Khan and hurled abuses, but on the intervention of the villagers they went away. On the 30th of October 1955, at about digarwela, while Nawab Khan and Muhammad Ashraf, P. Ws., were returning from their land and were passing by the house of the accused, they were set upon by the four accused. Rashid and Muhammad Khan accused, who were armed with dangs gave blows to Nawab Khan, P. W., and when Muhammad Ashraf P. W., who had a small stick in his hand, gave blows to Rashid and Muhammad Khan accused in order to rescue his brother, Muhammad Akram gave a takwa blow on his head and Bashir gave a takwa blow on his arm. The occurrence was witnessed by Sube Khan (P. W. 3) and Malang Khan (P.W. 4). The injured were then taken to the hospital at Arifwala, and on the following morning, Nawab Khan, P. W. lodged the report, Exh. P.A. at the police station. During the investigation some blood‑stained earth was also taken into posses sion from the spot. Akram, Rashid and Bashir accused produced their respective weapons before the police but as they were not sent to the Chemical Examiner, the recovery of these weapons has no material bearing on the case. Rashid, Akram and Muhammad Khan, accused were also found to bear one injury each on their person and they were got medically examined.

16. At the trial ten witnesses were examined to substantiate the prosecution case. The accused denied the commission of the offence but did not set up any counter version in their statements. Rashid accused explained that he had 'received the injury at the hands of Muhammad Ashraf, P, W. Akram respondent stated that he had been injured by one Mukhtar and Muhammad Khan accused said that Ali Ahmad had injured him. They called three witnesses in their defence who stated that Muhammad Ashraf, P. W., had attacked Rashid accused and they began to grapple with each other and when Nawab Khan, P. W., gave a blow with his hatchet to Rashid accused it accidentally struck Muhammad Ashraf, P. W., on his head, and Nawab Khan, P. W. fell on the fuel wood which was lying there and was this injured.

17. Learned counsel for the respondent has contended that Mst. Rashida was in fact abducted in the year 1949 and since then there had been no fight between the parties. It was about a year before the occurrence that a sister of Nawab Khan, P. W. had been abducted by his .cousin Sabir and as the latter had kept the woman in the house of the accused, therefore, Nawab Khan and Muhammad Ashraf, P. Ws. had become inimical to them and were in fact the aggressors. Muhammad Ishaq, (P. W. 9) has stated that he had abducted Mst. Rashida, sister of Akram respondent, in the year 1949. This finds further support from the statement of Yaqub Khan, Lambardar (P. W. 5) who in his further cross-examination admitted that Mst. Rashida had been abducted in the year 1949. He also added that eight or nine months before, the occurrence, Sabir had enticed away a sister of Nawab Khan and Muhammad Ashraf, P. Ws., and had kept her for some time in the house of the accused. In view of this material on the record, I feel that the motive alleged by the prosecution has not been established to be the motive of this fight. But whatever the motive be, it appears that for some time past the relations between the parties had become strained. Only a day prior to the date of the occurrence, the parties were going to fight just in front of the house of Nawab Khan, P. W., when Mehande Khan, Lambardar, (P. W. 12) intervened and saved the situation from taking an ugly turn. The statement of this witness has remained unchallenged. He is no relation of Nawab Khan, P. W. and bears no ill‑will towards the accused. He has also stated that Sandhe Khan, father of Mst. Rashida, had his suspicions that she had been abducted with the help of Nawab Kan, P. W.

18. The fight did take place in front of the house of the accused. The question is whether Nawab Khan and Muhammad Ashraf P. Ws. were the aggressors. As I have already pointed out the accused did not give any counter version of the occurrence. They did not allege that they had caused injuries to Muhammad Ashraf and Nawab Khan, P.Ws., in the exercise the, right of private defence. The story given by the P. Ws. is highly improbable. Muhammad Ashraf P. W. had received two incised injuries, and it is not explained how the second injury on the arm could have been caused if the defence version was true. And if the two P. Ws: were both armed and were the aggressors the result would have been different Akram respondent stated that he had been injured by one Mukhtar and Muhammad Khan accused stated that he, had received an injury at the hand of Ali Ahmad. The defence witnesses have said nothing to that effect. It is, therefore, not known how and when Akram respondent and Muhammad Khan accused were injured. Rashid accused had a small abrasion on his shoulder and Muhammad Ashraf, P. W. has explained that he had caused an injury to him when the latter had attacked Nawab Khan P. W. with a stick. In view 'of the above discussion, it is clear to me that Nawab Khan and Muhammad Ashraf, P. Ws. were not the aggressors. The prosecution case is fully established against Akram respondent that he had given a takwa blow on the head of Muhammad Ashraf, P. W., as a result of which the bone under neath was cut. When the doctor examined him on the 31st of October 1955, the brain matter was oozing out of this injury and the right side of his body had been paralysed. Muhammad Ashraf, P. W. remained unconscious up to the 12th of November. 1955 and was discharged from the hospital on the 10th of December 1955. All the witnesses are unanimous that Akram had given a takwa blow on the head of Muhammad Ashraf P. W., and although they are related to each other, there is no reason as to why they should have attributed this serious injury to Akram respondent.

19. For the aforesaid reasons, I am satisfied that the conviction of Akram respondent under section 307/34, P. P. C., is fully justified. For this offence his co‑accused were sentenced to three years' rigorous imprisonment each. Their was a vicarious liability. The injury caused was quite serious and it is a miracle that Muhammad Ashraf P. W. survived. Though the respondent was eighteen years of age at the time of the occurrence, but having regard to the weapon used and the nature of the injury caused he deserves no leniency. Under the circumstances, I see no reason as to why at least the same punishment should not be awarded to him as has been awarded to his co‑accused.

20. I accordingly set aside the order which the trial Magistrate had passed under section 562 (1) of the Code of Criminal Procedure, and in lieu thereof, sentence Akram respondent to three years' rigorous imprisonment under section 307/34, P. P. C. He should be immediately arrested to undergo the imprisonment now imposed on him. K.M.A. Reference accepted.