P L D 1961 (W (PLP)

5. The learned counsel for the petitioner has vehemently argued that the petitioner was a bona fide purchaser for value' of the two pipes from Yar Muhammad accused and had obtained the receipt, Exh. D. A. from him. In this connection he relied on the evidence of Muhammad Ali (1). W. 1), Shah Muhammad (D. W. 2) and Abdul Ali (D. W. 3). The evidence of these witnesses has not been accepted by the learned Sessions Judge. I have carefully gone through their evidence, and I am not impressed by their testimony. The receipt, Exh. D. A. bears the date 17th August 1959 and it is claimed by those witnesses that this receipt had been written during the day time at the shop of the petitioner. Admittedly by that time the pipes had not been received by the petitioner. It is difficult to believe that the petitioner who is a shop‑keeper would have paid Rs. 168 before taking delivery of the pipes. The witnesses have, stated that Yar Mahammad accused had put his signature on this receipt. Muhammad Ali (D. W. 1), who claims to be the scribe of this receipt, has stated that the line written just above the signature of Yar Muhammad was also written by Yar Muhammad. This line and the signature of Yar Muhammad are in different ink than the body of the receipt. A glance at the writing above the signature of Yar Muhammad leaves no room for doubt that that line had not been written by the person who had put the signature as Yar Muhammad. That line appears to have been written by a person who was adept in writing, while the name of Yar Muhammad had been written by someone who did not known how to write. Besides Yar Muhammad accused produced Muhammad Ashraf, cashier Power House (D. W. 6), and Ismat Ullah, junior clerk Power House (D. W. 7), in his defence. They 'stated that they were acquainted with the handwriting of Yar Muhammad accused and that the signature on Exh. D. A. was not in his hand. They also stated that the signatures of Yar Muhammad accused on the specimen writing. Exh. D. B. and on the log sheets Exhs. D. D., D. E. and D. F. were in his hand. I see no reason to doubt the testimony of these witnesses. The signatures of Yar Muhammad accused on the document are very peculiar and there is not the slightest resemblance between these signatures and the signature purporting to be that of Yar Muhammad on the receipt Exh. A. This receipt was not produced during the course of investigation. It was produced before the Court for the first time on the 10th of December 1959 when the petitioner was examined under section 342 of the Code of Criminal Procedure. The defence witnesses who have come forward to prove the receipt are not reliable. Abdul Ali (D. W. 3) is related to the petitioner. D. Ws. 1 and 3 have stated that one hundred‑rupee note and seven ten‑rupee notes were given by the petitioner out of which Its. 2 were returned, where as D. W. 2 has stated that one hundred‑rupee note, some ten‑rupee notes and eight one‑rupee notes were given by the petitioner. I am, therefore, of the opinion that the petitioner has failed to establish that he had purchased the two pipes from Yar Muhammad accused. But assuming that he had purchased these pipes from Yar Muhammad, the circumstances under which the petitioner had taken delivery of the pipes leave no room for doubt that he must have felt convinced that the property with which he was dealing was stolen property. There is nothing to indicate that Yar Muhammad accused used to sell pipes. He was an engine driver and was employed in the Power House. The petitioner claims to have purchased the pipes when Yar Muhammad did not have them with him. He further claims to have paid Rs. 168 without obtaining delivery of the pipes. The petitioner was seen bringing the pipes at 8‑45 p.m. from the direction of the Power House, and instead of following the regular path, was going through the fields. He admitted the fact before Mahmud Ali P. W. that Yar Muhammad accused had given him the pipes from the Power House. The circumstances taken together clearly go to indicate that the petitioner had dishonestly received the pipes, Exhs. P. 1 and P. 2, knowing or having reason to believe the same to be stolen property.

6. The next point on which the learned counsel for the petitioner has laid special emphasis is that having been charged under section 380, P. P. C., the petitioner could not have been convicted under section 380/109, P. P. C. He has drawn my attention to section 238 (2‑A) of the Code of Criminal Procedure, and has urged that whereas this subsection expressly makes mention of an attempt to commit an offence, it is silent so far as the abetment of an offence is concerned. The general rule is that a person cannot be convicted of an offence with which he is not charged. But there are two exceptions to this rule which are provided for in sections 237 and 238 of the Code of Criminal Procedure. Section 238 empowers the Court to convict a person of a minor offence if the case falls within the conditions laid down in that section. Subsection (2‑A), was inserted in 1923. This subsection appears to have been inserted by way of abundant caution, because I think that an attempt to commit an offence is without doubt a minor offence within the scope of sub‑sections (1)l and (2) of section

238. Having regard to the language oh section 238, I have no doubt in my mind that the abetment of an offence is not, a minor offence within the meaning and scope of section

238. This, however, does not conclude the matter. It is yet to be considered whether the case is covered by the exception laid down in section

237. This section enables the Court to convict a person of an offence which from the evidence, he is proved to have committed, and for which he might have been charged under the provisions of section

236. There can be no doubt that on the facts of the present case, the petitioner might have been charged under section 380/109, P. P. C. under the provisions of section

236. By being present near the spot, and by actively aiding in the removal of the property, the petition had abetted the commission of the offence. I am, therefore, of the opinion that although the petitioner was charged under section 380, P. P. C., he could have been convicted under section 380/109, P. P. C. There is ample authority for the view that if a person might have been charged for the abetment of an offence under the provisions of section 236, then he could be convicted for abetmen c although he was not charged with it. The following authorities clearly support this view :‑ (1) Provincial Government G. P. & Berar v. Gomaji Badri A I R 1944 Nag. 192 ; (2) Khuman v. Emperor A I R 1931 Oudh 274 ; (3) Debi Prashad v. Emperor A I R 1932 Cal. 455, and (4) Keht Singh v. Emperor A I R 1920 Lah.

15. Another point which has been raised by the learned counsel for the petitioner is that since the principal offender Yar Muhammad has been acquitted, the conviction of the petitioner for the abetment of the offence cannot be maintained. This contention is not without force. The substantive offence under section 380, P. P. C. was undoubtedly committed but in view of the acquittal of Yar Muhammad, it cannot be held with certainty that the theft had been committed in consequence of the abetment by the petitioner. It is true that the offence of abetment is a distinct offence, and does not depend upon the actual commission of the crime abetted, but in the circumstances of the present case, I have grave doubts if the conviction of the petitioner under section 380/109, P. P. C. can be upheld. I would, however, like to add that I am not laying down a general rule that in no case an abettor of an offence can be convicted, if the principal is acquitted of the substantive offence. There may be a case where an abettor on his own confession or. on his plea of guilty to the charge, may be convicted of the offence of abetment though the evidence may E be insufficient to establish the substantive offence against the principal. Yet another type of such a case may be found, where the Appellate Court may find that the substantive offence had beep committed by some unknown person or persons in consequence of the abetment by the culprit. In similar circumstances their Lordships of the Privy Council had upheld the judgment of the Patna High Court in Thakur Shah v. The King‑Emperor (AIR 1943 PC 192). In the view however which I have taken about the facts of the present case, I am not satisfied that some unknown person had committed the offence in consequence of the abetment by the petitioner. I accordingly set aside his conviction and sentence under section 380/109, P. P. C. This however does not mean that he can also escape his liability under section 411; P. P. C. I have already referred to the circumstances under which the petitioner was found in possession of the pipes. The circumstances were such that a reasonable man must have felt convinced that the property, he was dealing with, was stolen property.

8. This brings me to another important question which is involved in this case. The petitioner had been tried upon charges under sections 380 and 411, P. P. C. The learned Magistrate convicted him under sections 380/109 and 411, P. P. C. and sentenced him to nine month' rigorous imprisonment under the former section, but did not pass any separate sentence under section 411, P. P. C. The question arises whether this Court is empowered to impose sentence on the petitioner on the basis of his conviction under section 411, P. P. C. recorded by the Magis trate. Before proceeding further I would like to point out that having regard to the mandatory provisions of subsection (2) of section 258 of the Code of Criminal Procedure, the Magistrate was bound to pass sentence according to law. He had no option in the matter. To refrain from passing sentence in respect of the offence of which an accused is convicted, creates complications in cases where the conviction for the offence for which the accused has been sentenced is set aside by the superior Court. It is, therefore, only proper that the Magistrate should pass separate sentence for all the offences of which the accused is convicted.

9. The question whether the High Court can impose sentence in the circumstances referred to above, came up for consideration before the Supreme Court of India in Jayaram Vithoba and another v. The State of Bombay (P L D 1956 S C (Ind.) 243). The learned Judge of the Supreme Court of India, after referring to the relevant authorities on the subject held that if a person is convicted of two offences and is sentenced only on one count and no separate sentence is imposed on the other count, the High Court can impose sentence on the other count both under section 423 (1) (d) and section 439 (2) of the Code of Criminal Procedure. With the profoundest respect to the learned Judges of the Supreme Court of India, I regret that I have not been able to persuade myself to accept the view that the High Court can impose such a sentence in the exercise of revisional jurisdiction under section 439 (2) of the Code of Criminal Procedure. While considering this aspect of the matter the learned Judges themselves remarked as follows :‑ "We are unable to agree with the view expressed in Ibrahim Haji v.. Emperor A I R 1940 Born. 129 that such an order would be an enhancement of the, sentence. Before a sentence can be enhanced, there must be one which could be enhanced and when no sentence was imposed on conviction by the trial Magistrate and one is for the first time awarded in appeal, it cannot correctly be said to be an enhancement." With these observations of the‑ learned Judges, I respectfully agree. But in the end the learned Judges observed as follows :‑ "The order of the High Court could accordingly be main tained under section 439, even if it were to be regarded as an enhancement of the sentence. In any event, no prejudice has resulted to the first appellant by the reason of the absence of a formal notice under section 439 (2)". If I may say so with respect, these remarks run counter to the observations made earlier, No sentence having been passed by the trial Magistrate, the question of enhancement of sentence did q notarise at all, and consequently the sentence could not have been imposed under section 439 (2). I am, therefore, of the view that section 439 (2) does not empower the High Court to impose sentence for the first time in a case of this nature.

10. The question whether such a sentence can be imposed by virtue of section 423 (l) (d) of the Code of Criminal Procedure may now be considered. Clause (d) reads as follows :‑ "Make any amendment or, any consequential or incidental order that may be just or proper". While interpreting this clause, the learned Judges of the Supreme Court of India were pleased to observe as follows "When a conviction is affirmed on appeal but no sentence had been awarded by the trial. Magistrate, the award of a sentence is consequential on .and incidental to the affirmance of the conviction and it is just and proper order to be passed under the law." The learned counsel for the petitioner has not been able to cite any authority to the contrary. The question really turns on the interpretation of the words "consequential or incidental order". In Malik Feroze Khan Noon v. The State (P L D 1958 S C (Pak.) 333 at page 357) Mr. Justice Muhammad Monir, the then Chief Justice of Pakistan, while dealing with clause (d) of subsection (1) of section 423 of the Code of Criminal Procedure observed as follows :‑ "The power to grant relief of the present nature is neither included in the appellate Court's power to `make any amend ment' which obviously refers to the power to make an amend ment in the effective order of the original Court or in the order that the. appellate Court may pass under clauses (a), (b) and (c) of subsection (1) of section 423, nor in the power to make any consequential or incidental order which refers to the power to make an order subsidiary to the effective order that it may decide to make under those clauses .. The consequential or incidental order can only follow from the operative order in appeal which can either be one of affirming the conviction or of setting aside the conviction or of reducing or altering the sentence." As I understand it, these observations clearly mean, that in a case where the convictions is affirmed, the appellate Court can pass a subsidiary order following from the operative order in appeal without which the order in appeal would be ineffective, and incomplete. While hearing a revision this Court is empowered under section 439 of the Code of Criminal Procedure to exercise the powers of a Court of appeal under section 423, Criminal Procedure Code. As pointed out earlier, under section 258 (Z) of the Code of Criminal Procedure, the Magistrate was bound to pass some sentence under section 411, P. P. C. also. Now that have affirmed the conviction of the petitioner under section 411 P. P. C., this order shall remain incomplete and ineffective if I were to refrain from imposing a sentence on the petitioner. In my opinion this power is preserved to this Court under the provisions of clause (d) of the sub‑section (1) of section 423 of the Code of Criminal Procedure. This will be a subsidiary order within the meaning and scope of `consequential or incidental order', and follows as a matter of course from the operative order of affirmance of conviction of the petitioner under section 411 P. P. C. There can be no doubt that such an order will be a necessary complement of the main order, and in the circumstances of the case will be just and proper.

11. For the reasons given above, I maintain the conviction of the petitioner under section 411, P. P. C. and sentence him to nine months rigorous imprisonment. I might add that even if I were to ignore the conviction of the petitioner under section 411 P. P. C.. as recorded by the learned Magistrate, I would myself convict him under section 411, P. P. C., in lieu of his conviction under section 380/ 109, P. P. C. and sentence him to nine months rigorous imprisonment.

12. The result is that the conviction and sentence of the petitioner under section 380/109, P. P. C. is set aside and he is convicted under section 411, P. P. C: and sentenced to nine months' rigorous imprisonment. The petitioner who is on bail should be re‑arrested, and required to serve the unexpired portion of his sentence. K. B. A. Order accordingly.