P L D 1954 Federal Court 141 (PLP)

ABDUL RASHID, C. J.

The seven appellants, namely, Shera, Goman, Dullah, Walia, Allah Dad, Sadiq, and Fazal, were tried by the Sessions Judge of Montgomery on the following charges:‑ (1) Under section 148 P. P. C. for having formed an unlawful assembly with the common object of murdering Kamira and abducting Mst. Zohran and for committing rioting, armed with deadly weapons ; (2) Under section 302/149 for having, in furtherance of the common object of their unlawful assembly, murdered Kamira, deceased ; (3) Under section 366/149 for having, in furtherance of the common object of their unlawful assembly, abducted lust. Zohran and her infant daughter, knowing it likely that Mst. Zohran would be forced or seduced to illicit intercourse against her will; and (4) Under section 379/149, P. P. C. for having in prosecution of their common object, committed the theft of a mare belonging to Kamira, deceased. Walia was convicted under section 302 of the Pakistan Penal Code and sentenced to death. All the accused were convicted under section 148 and sentenced to six months' rigorous imprisonment each. Goman was also convicted under section 379 and given a sentence of six months' rigorous imprisonment. All the convicts preferred an appeal in the High Court of Judicature at Lahore After the appeal had been preferred a notice was issued to all the convicts, other than Walia, to show cause why the finding in regard to the offences committed by them be not altered to that of murder and their sentences enhanced in revision. The learned judges of the High Court accepted the appeal of Walia in part and reduced his sentence for shooting down Kamira from that of death to one of transportation for life. While disposing of the appeal of the other six convicts all of whom had been convicted under section 148 of the Pakistan Penal Code, the finding of acquittal recorded by the Sessions judge in their favour for an offence under section 302/149 was altered under section 423 of the Criminal Procedure Code, and they were held guilty of murder. After altering the finding, the learned judges; acting on the revision side under section 439 of the Code, enhanced the sentence in the case of each of these six convicts to transportation for life. The convictions and sentences under sections 148 and 379 as imposed by the Sessions judge were affirmed. The convicts have preferred this appeal by special leave of this Court. Mst. Zohran, a sister of Shera appellaut, was married to Alam several years ago. Two or three years before the murder Kamira deceased abducted Mst. Zohran and took her away. After some time a compromise was arrived at between Alam and Kamira to the effect that Alam was to divorce Mst. Zohran and Kamira was to retain her. In return, Kamira was to give his niece Mst. Mehran in marriage to Alam. As a result of this compromise Mst. Mehran was married to Alam, but the marriage was not consummated because Mst. Mehran continued to live with her parents and was not sent to the house of her husband. Alam thus had a grievance against Kamira. He brought Mst. Zohran to his own house about a year before the occurrence but Kamira again abducted her. On the 2nd of June, 1950, Kamira was murdered. At that time 161st. Zohran was living with him in his house. At about sunset time the seven appellants appeared outside the house of Kamira. Walia, Sadiq and Fazil had rifles; Goman and Allah Dad pistols; and Shera and Dullah were armed with spears. Goman fired his pistol in the air and stood guard at the door, while the others entered the house of Kamira. Kamira and Mst. Zohran ran into a room and chained the door from inside. This door was broken open by Shera and Dullah with their spears. Walia then fired three shots from his rifle, two of which missed their victim, but the third hit Kamira in the head. Mst. Zohran was then dragged out of the house, put on a mare, and taken away together with the baby she was carrying. The learned Sessions judge held that the common object of the assembly was to take away Mst. Zohran. Shera is the brother of Mst. Zohran and Allah Dad accused is her uncle. There was no evidence at all to show that they wanted to carry away Mst. Zohran in order to seduce her to illicit intercourse or knowing‑it likely that she would be seduced to illicit intercourse. They abducted her because the deceased and her family had broken their promise regarding Mst. Mehran. Mst. Zohran was taken away in the interest of her husband. In these circumstances, none of the accused could be convicted under section

366. According to the Sessions Judge, Walia accused seems to have gone far beyond the original intention, that is, the abduction of Mst. Zohran. He alone was guilty under section 302 of the Pakistan Penal Code. All the accused were, however, guilty under section 148 of the P. P. C. The first and the most important question for consideration in this case is whether the appellants other than Walia can be convicted of an offence under section 302/149 of the P. P. C. All the convicts were charged under this section. Walia was convicted for his individual act of shooting Kamira under section

302. None of the other convicts was convicted under section 302/149. All of them were awarded a sentence of six months' rigorous imprisonment under section

148. It has been held by their Lordships of the Privy Council in the case of Kishan Singh v. The King‑Emperor (55 I A 390.) that when a person is tried for the offence of murder under section 302 of the Penal Code and is convicted under section 304 of culpable homicide not amounting to murder his conviction for the lesser offence amounts to an acquittal on the charge' of murder, and that consequently sec?tion 439, subsection (4) of the Criminal Procedure Code precludes the High Court from having jurisdiction upon revision to convict the accused of the charge of murder. In the reported case, Kishan Singh had been tried on a charge under section 302, but had been sentenced to five years' rigorous imprisonment under section 304 P. P. C. He did not prefer an appeal in the High Court. The Provincial Government did not appeal under section 417 of the Cr. P. C. but applied for revision on the ground that the appellant should have been convicted of murder and that the sentence was inadequate. In these circumstances, their Lordships held that the learned judges of the High Court in converting the finding of acquittal of the appellant on the charge of murder into one of conviction and in sentencing him to death on the application for revision were acting without jurisdiction, and that in such circumstances it was impossible to hold that no injustice was done. It was conceded on behalf of the Crown that if the convicts bad not preferred an appeal in the High Court in the present case, they could not have been convicted under section 302/ 149 of the P. P. C. on the revision side in view of the observa?tions of their Lordships in Kishan Singh's case (55 I A 390). It was, however, urged that as the convicts bad preferred an appeal in the High Court the High Court acquired jurisdiction under section 423 Cr. P. C. to alter the finding of acquittal on the charge of murder to one of conviction. Thereafter, the High Court could, in the exercise of its powers of revision, impose a sentence of transportation for life under section 302/149, and that the imposition of this sentence on persons who were acquitted of the charge under section 302/149 would merely amount to an enhancement of the sentence. Reliance was placed in this con?nection on the Full Bench decision of the Lahore High Court in the case of Bawa Singh v. The Crown (I L R (1942) Lah. 129.) In this case, it was held that the High Court is competent in the exercise of its appellate jurisdiction to alter the finding against a convict from one under section 304, Part I, to a finding that the conviction should be under section 302, and then in the exercise of its revisional jurisdiction under section 439 of the Cr. P. C. enhance the sentence to one of death or transportation for life. This decision in terms is inapplicable to the facts of the present case. Six out of the seven convicts were acquitted of the charge of murder under section 302/149 of the P. P. C. They were sentenced only for an offence under section

148. The offence of rioting falls under Chapter VIII of the P. P. C. which deals with offences against the public tranquillity. Offences under sections 304 and 302 fall under Cuapter XVI which deals with offences against the human body. In these circumstances, can it be said that by convicting these appellants under section 302/149 the High Court were merely altering a finding as envisaged in section 423 (1) (b) (2) of the Criminal Procedure Code ? In my opinion, the reversal of a finding of acquittal and the substitution there?for of a finding of conviction cannot be covered by the words, "alter a finding" as used in section

423. In the Full Bench decision of the Lahore High Court. Sale J. observed as follows :‑ "The ordinary meaning of the word "reverse" is to "annul", or turn into something completely opposite in character, whereas "alter" is a less radical expression and means "change in form", without changing the underlying character of the thing to be changed. "Applying the ordinary meaning of these words. I would say that "reversal" connotes the complete annulment of a finding of guilt or innocence (as the case may be) by the trial Court so as to convert a decision that a man is innocent into a finding of guilty or vice versa: whereas "alteration", while maintaining the essential character of the finding, envisages only a change in form, that is, in the case of a conviction in the degree of guilt." It is clear that even according to the Full Bench decision of the Lahore High Court the learned judges in this case reversed the finding of acquittal under section 302/149 and substituted in its place a finding of conviction under the same section. Under no circumstances, can the reversal of such a finding be regarded as a mere alteration. In my opinion, there is 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. On this ground alone, I would accept the appeal of six of the convicts and hold that their conviction under section 302/149 cannot be sustained. I am of the opinion that the case of Bawa Singh v. The Crown (I L R (1942) Lah. 129) was wrongly decided. Section 423 (1) is in the following terms :‑ "(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if appears, and, in case of an appeal under section 41,1‑A, subsection (2), or section 417, the accused, if he appears, the Court may if it considers that there is no sufficient ground for interfering dismiss the appeal, or may‑-- (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on hint according to law ; (b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried, by a Court of competent jurisdiction subor?dinate to such Appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence " 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 isolate the words "alter the finding" and completely ignore the qualifications which make the alteration possible, c 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. This follows from the decision of their Lordships of the Privy Council in the case of Nazir Ahmad v. The King-?Emperor (I L R (1936) Lah. p. 629) Their Lordships expressly laid down "that where a power is given to do a thing in a certain way, the thing must ‑be done in that way or not at all Other methods of performance are necessarily forbidden." This rule was applied by the judicial Committee to the recording of confessions under section 164 of the Criminal Procedure Code. But it applies with equal force to the provisions of sections 417 and 423 of the Code. Sections 417 and 423 (1) (a) prescribe the method of securing a reversal of an order of acquittal. Such a reversal cannot be allowed to be secured by resorting to the provisions of section 423 (1) (b) read with section 439 of the Code. Section 439 of the Criminal Procedure Code authorizes the High Court to enhance a sentence. This is, however, subject to the qualification that the High Court cannot revert a finding of acquittal into one of conviction. It appears to me to be illegal to alter the finding in exercise of the powers under section 423 of the Code and disregard the qualifications attached to the words "alter the findings", and then to resort to subsection (4) of section 439 to enhance a sentence in such a manner as to convict a person of an offence of which he has been acquitted. Such a procedure is incomplete violation of the provisions of sections 417 and 423 (1) (a) of the Code. 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. There is a conflict of judicial opinion on the question whether a Court of Appeal is empowered under section 423 (1) (b) (2) to alter a finding of acquittal into one of conviction. Some High Courts have held that the Appellate Court cannot alter the finding of conviction appealed from in such a way as to set aside a finding of acquittal recorded by the trial Court in respect of a more serious offence. Subsection (1) (b) of section 423 Cr. P. C. according to this view, is not applicable to a case where there is an express order of acquittal. In such a case, the accused cannot be convicted of the offence of which he has been acquitted without appeal by the Provincial Government. Interference with the order of acquittal would amount to a reversal of the finding, and the Appellate Court cannot usurp this power by regarding such reversal as a mere alteration of the finding. The other view is that a Court of Appeal is empowered under section 423 (1) (b) (2) of the Code to alter a finding of acquittal into one of conviction even though the Provincial Government has not preferred any appeal against the order of acquittal under sec?tion

417. I consider it unnecessary to deal with the various cases cited at the Bar to support these different points of view. I have no hesitation in holding that the former view is a correct statement of the law, and that the decision of the Full Bench of the Lahore High Court in the case of Bawa Singh (I L R (1942) Lah. 129) does not lay down the law correctly. The powers conferred on an Appellate Court under section 423 (1) (b) can be availed of by a Sessions judge in the exercise of his appellate jurisdiction. It is clear that the legislature wanted all appeals against acquittal to be heard by the High Court. Can it possibly be held that by giving the power of "altering the finding" to a Sessions judge he was empowered to set aside orders of acquittal. Such an interpretation would be entirely repugnant to the provisions of section 423 (1) (a). With all respects I approve of the view expressed by Sulaiman C. J. and Bennet J. in Sard Parshad v. The Emperor (A I R 1937 All. 240) and by Mulla and Hamilton JJ. in the case of Emperor v. Zamir Qasim (I L R (1944) All. 403). I find it impossible to bold that if six of the convicts in this case had not preferred an appeal from their convictions under section 148 the sentences awarded to them could not have been enhanced to more than 3 years' rigorous imprisonment, but that as they appealed against their convictions under section 148 it was open to the High Court to enhance their sentences from six moths' rigorous imprisonment to transportation for life. Such a result, without an appeal against acquittal by the Provincial Government, has not been envisaged in the Criminal Procedure Code and is entirely repugnant to the provisions of section

423. I would dismiss the appeal of Walia which has no force and would also affirm the convictions and sentences of all the seven appellants under section 148 of the Pakistan Penal Code. The sentence of six months' rigorous imprisonment awarded to Goman under section 379 is also maintained. For the reasons given above, I would however accept the appeal of Shera, Dullah, Allah Dad. Sadiq, Fazal and Goman, so far as their convictions under section 302/149 are concerned and. acquit them of this charge. If these six convicts have already served out the sentences awarded to them under section 148 and to Goman under section 379 in addition they shall be set at liberty forthwith. AKRAM, J.‑In this appeal it is not necessary for me to set out the facts as they have been stated in detail in the judgment of my Lord the Chief Justice. The principal question for decision is purely one of law relating to the true meaning and scope of section 423 (1) (b) (2) and section 439 of the Criminal Procedure Code, namely, whether the High Court, on appeal from a conviction regarding some charges, is empowered to alter the finding of acquittal into one of conviction in respect to the other charges, and then with the help of the revision section 439 to award an appropriate punishment for the offence found to have been committed. I shall, therefore, refer to the facts only to the extent to which it would be necessary for the purpose of understanding the point of law aforesaid. The seven appellants including Walia and Goman were put on their trial before the Sessions Judge of Montgomery, aided by assessors, under sections 302/149; 148; 366/149 and 379/149 of the Penal Code. All the accused were convicted and sentenced to rigorous imprison?ment for six months under section 148, but Walia was further sentenced to death under section 302, and Goman to rigorous imprisonment for six months under section

379. The convicted persons appealed to the High Court of Judicature at Lahore, and while admitting the appeal, the Court suo motu issued notice to the appellants other than Walia "to show cause why they should not be convicted under section 302/ 149 and the sentence enhanced". Upon the final hearing of the appeal, except for the reduction of the sentence of death passed on Walia to a sentence of transportation for life, the appeal was dismissed and the finding of acquittal on the charge of murder under section 302 against the appellants other them Walia was altered to a finding of conviction under section 302/149 and then by the application of section 439 Cr. P. C. they were sentenced to transportation for life. Counsel for the appellants contended that the High Court had no jurisdiction while dealing with the appeal to convert a finding of acquittal into a conviction, in the absence of an appeal by the Provincial Government and then to pass sentence with the help of section 439 Cr. P. C. In support, he relied mainly on the decisions in the cases of Kishan Singh v. Emperor ((1928) 55 1 A 390 1 L R 50 All. 722.) and Sarada Prasad v. Emperor (A I R 1937 All. 240.), but these cases are clearly distinguishable. In the case of Kishan Singh there was no appeal before the High Court against conviction or against acquittal and recourse was had to section 439 Cr. P. C. on the petition of the Provincial Government for altering the acquittal into conviction : in this connection their Lordships of the Judicial Committee pointed out clause (4) of section 439 and observed that the High Court had no jurisdiction under section 439 to alter an acquittal .into a conviction. This decision has been noticed and explained in several cases. In the Full Bench case of Zamir Qasim v. Emperor (A I R 1944 All. 137 at 146.) Iqbal Ahmad, C. J., commented upon the decision of the Judicial Committee in Kishan Singh's case in the following terms :‑ "It would be noted that the only question that engaged the attention of this Court in 44 All 332 Emperor v. Sheo Darshan Singh and of their Lordships of the Privy Council in 50 All. 722 (Kishan Singh v. Emperor) was whether it was open to the High Court, in the exercise of its revisional jurisdiction to convert a finding of acquittal into one of conviction. Neither this Court nor their Lordships of the Judicial Committee bad, in the two cases, to consider the scope of the powers tested in an appellate Court by section 423 (1) (b) (2). Indeed, while noticing the case in 37 Mad. 119 (In re Balli Reddy and others v. King‑Emperor) their Lordships refrained from making any pronouncement about the extent of the powers conferred on a Court of Appeal by section 423 (b). These two cases, therefore, are, no authority for the contention that an appellate Court, can under no circumstances substitute a finding of conviction for a finding of acquittal. In arriving at this conclusion, I have not overlooked the observation in 44 All. 332 (Emperor v. Sheo Darshan Singh) that the only method by which it would be possible to obtain a conviction of murder would be by an appeal by the Government against the acquittal. These observations must be taken in conjunction with the facts of the case in which they were made. The learned judges in 44 All. 332, were concerned with the powers of the High Court under section 439 and as subsection (4) of that section prohibits the conversion of a finding of acquittal into one of conviction the learned judges rightly pointed out‑if I may say so with respect‑that a revisional Court could not in the absence of an appeal by the Local Government, overcome the bar enacted by subsection (4). Reference may be made in this connection to the decision of this Court in 55 All. 834 (Raghunath v. Emperor) in which it was held that the Privy Council ruling in 50 All. 722 (Kishan Singh v. Emperor) does not interpret the powers of an appellate Court under section 423 Cr. P. C., but interprets the revisional powers of the High Court under section 439 of the same Code." Similarly in the case of Hanuman Sarma v. Emperor (A I R 1932 Cal. 723.) it was observed by Ramfry J.‑ "In the Madras case In re Ralli Reddy and others v. King‑Emperor A I R 1914 Mad. 258 according to the Judicial Committee, the accused appealed against their convictions under sections 147 and 302? (304) and the High Court, as a Court of revision, gave them notice to show cause why they should not be convicted of murder and be sentenced for that offence. Then the Madras High Court altered the finding to one of murder. The view taken was that the proviso to section 439 only applied to cases in which there had been an acquittal and no conviction at all. That view the judicial Committee decided was wrong and therefore any power to alter the finding must have been under section 423, clause (b). Section 439 is concerned with the powers of a Court in revision when findings of fact are not open to review and a proviso against altering an acquittal into a conviction was expressly added by the legislature in that section. Section 423 clause (b), is concerned with the powers of the Court in an appeal where the facts are before the Court ; and in the absence of proviso limiting the powers given thereby the Court can alter the findings, such a proviso cannot be implied." Reference may also be made to the Full Beneh case of Bawa Singh v. The Crown ((1942) 1 L R 23 Lah. 127 at p. 139.), where Dalip Singh J. observed?

"It seems clear to me on a reading of the ruling of their Lordships of the Privy Council that they expressly left the point about the powers of the appellate Court open". These observations seem to me to be equally applicable to the decision in the case of Sarda Prasad v. Emperor (A I R 1957 All 240.) in which Sulaiman C. J. and Bennet J., appear to have proceeded upon the erroneous assumption that the judgment of the Privy Council in Kishan Singh's case had determined the scope of section 423 (1) (b) (2) of the Cr. P. C. In fact the judgment in Sarda Prasad's case was over‑ruled for this and other reasons by the majority of the Judges in the case of Zamir Qasim v. Emperor. The above quotations clearly show how the decision of the Privy Council in Kishan Singh's case has been understood by some of the highest judicial authorities. The said decision is evidently not of much assistance in solving the present question as to the scope of section 423 (1) (b) (2) and the legality of combining that section with section 439 Cr. P. C. for the purposes of passing a suitable sentence, Section 423 (1) (b) (2) empowers an appellate Court to 'alter the finding' in an appeal from a conviction; though there is no restriction laid on this power in that section, nevertheless, it must be exercised subject to the other provisions of the Code, namely, sections 233, 235 to 238, 423 (2) and

426. Within this limitation a finding on which a conviction is based may be altered in any manner and it is obvious that by doing so an acquittal on a different charge may at times get converted into a conviction. There is no reason, therefore, to suppose that an appellate Court while entitled to alter a finding and to give a decision, which in its view of the evidence should have been given by the trial Court, is precluded from converting an acquittal into a conviction. So to say, would amount to reading in the section words which are not there and rendering clause (1) (b) (2) of section 423 of little practical value. An appeal is a re‑hearing and a reconsideration of the entire controversy between the contending parties unless limited in its scope by law, consequently in an appeal from a conviction on some out of the several charges, the question of acquittal on the remaining charges also comes in for consideration. The expression `alter the finding' with reference to the context apparently means alter the finding B forming the basis of a conviction under a particular section to a different finding which may result in a conviction under some other section. The fact that originally there may have been an acquittal under the other section, either expressly or impliedly, to `my mind, makes no difference. I do not think that the word reverse' instead of 'alter' would have been a better word for the purpose of conveying that meaning. Assuming, however, that the use of the word `alter' is inapt, it is difficult to see how the omission of all words of restraint or control in clause (1) (b) (2) of section 423, is to be explained if the intention of the legislature was to bestow only a limited jurisdiction. It may also be noted that the words "maintaining the sentence" become necessary as the High Court alone can enhance sentence by exercising revisional powers under section 439 while section 423 is general in its terms and applies whenever any Court acts as a Court of Appeal. Reference here may be made to the decisions in the case of

Zamir Qasim v. Emperor (A I R 1944 All. 137.); Bawa Singh v. The Crown (I L R 23 Lab 129.); and Begu v. King‑Emperor (52 I A 191.). I fully realize the resulting distress if in seeking redress the grievance gets intensified, but it is not an uncommon experience in life to find an indiscreet' effort at alleviation making matters go from bad to worse. Criminal law is no exception to such a risk because where the interest of public justice demands interfer?ence, sentiments cannot count for much. I am of opinion that subject to the other provisions of the Cr. P. C., namely, sections 233, 235 to 238, 423 (2) and 426, the High Court in an appeal from a conviction can under section 423 (1) (b) (2) alter an acquittal into a conviction. The question which next requires consideration is whether after a finding has been so altered in an appeal from a conviction, a suitable sentence can be passed by the High Court by resorting to section 439 Cr. P. C. I find nothing to prevent the High Court from doing so after issuing notice to the party concerned. In the case of Chunbidya v. Emperor (A I R 1935 P C 35.) Lord Atkin observed as follows :‑ "On the other hand, the powers of revision are given to the High Court alone, and the powers of revision are given to the High Court in the case of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge. Their Lordships ‑are clearly of opinion that when the High Court has before it on appeal a record of criminal proceeding, the condition precedent is performed, and the High Court can then, though the record has only come to its knowledge in the appellate proceeding, proceed to exercise its revision powers if it chooses to do so." This decision was followed by the majority of the Judges in the Full Bench case of Bawa Singh v. The Crown (I L R 23 Lab. 129.) where it was held that the High Court was competent in its appellate jurisdic?tion to alter the finding of the Sessions judge from section 304 Part I to section 302 and in its revisional jurisdiction to pass sentence of death or transportation for life as the merits of the case may require. The same view was expressed long ago by the Rangoon High Court in the case of On Shwo v. Emperor (76 I C (1923) 711 at p. 715.), where it was observed:‑‑ "There can be no doubt that, in a case like this, where a prisoner appeals and the High Court takes action under the provisions of section 439, Cr. P. C., it bad power to alter an acquittal of murder into a conviction therefor because, in such a case, the High Court is acting both under section 423 and section 439 of the Cr. P. C. The case of Emperor v. Sheo Barshan Singh (65 Ind. Cas. 858) is not parallel, since there the prisoner had not appealed and the learned judges were merely acting under their revisional powers. The cases of gambam Bali Reddy v. Emperor (22 Ind. Cas. 756) and Bhola v. King-?Emperor (12 P. R. 1904) are more to the point. There it was held that, where there is an appeal by a prisoner, and, in addition the High Court tales seism of the case under its revisional jurisdiction, the conviction for a lesser offence, where the prisoner has been suitably charged, can be converted into one under section 302 of the I. P. C , and the sentence enhanced accordingly, under the combined provisions of sections 423 and 439 of the Cr. P. C. In the present case the appellant was committed to Sessions charged under section 302, and that charge was allowed to stand. There was no necessity for the learned Sessions judge to add a charge under section 304, because that offence could have been treated as a minor offence under the original charge. For the reasons stated, in dealing with this appeal and in virtue of the revisional powers in this Court, the conviction and sentence under section 304, first part, of the I. P. C. are set aside, and. the appellant Nga On Shwe, alias Kalaw, is convicted of the murder of the deceased Ba Gun under section 302 of that Code. The circumstances of the case, as stated, do not show any adequate reason why the extreme penalty should not be inflicted. In a still earlier case of Bhola v. The King‑Emperor ((1904) P. R. No. 12 (Cr.)) Clark, C. J. expressed his view in the following words:‑ "Our view of the case is that the case being before us both as an appeal and as a revision, we can, as an appellate Court, alter the finding under section 423 (b) Cr. P. C. and then under section 439 (1) Cr. P. C. enhance the sentence." The present controversy seems to me to be largely due to the decision in Kishan Singh's case. I hold that the High Court on altering a finding in the exercise of its appellate jurisdiction under section 423 (1) (b) (2), can take help of section 439 and pass any legal sentence which it considers to be just and proper. It is to be remembered that the High Court is charged with the duty of superintendence and supervision over the administration of criminal justice by the subordinate Courts. The High Court must, therefore, be deemed to have been entrusted with wide and extensive powers unless the law in a clear and unambiguous manner indicates its intention to the contrary. A superior Court must be presumed to have jurisdiction until it is shown to have none. But, by the mere vesting of such powers it must not be supposed that a Court can act arbitrarily or in an autocratic fashion. That would be an abuse of power and this Court would surely check and correct every abuse of power leading to injustice whenever it is brought to its notice. In the case in hand, so far as the appellants other than Walia are concerned, their appeal had been dismissed with the result that although their conviction under section 148 and the sentence of rigorous imprisonment of six months remain in tact, yet on account of the alteration of the finding in appeal, they have been further convicted under section 302/149 and sentence to transportation for life.' This at first sight may seem and infringement of section 423 (1) (b) (2) on the ground that there was no alteration of the original finding but an addition to it and to the sentence passed thereunder. The application of section 149, however, shows that there is no real contravention of section 423 (1) (b) (2). The existence of an unlawful assembly committing an offence must be pre?supposed before section 149 can be applied, and as to the sentence of rigorous imprisonment for six months under section 148, it has been made concurrent with the sentence of transportation for life under section 302/149. No prejudice, therefore, can be said to have been caused by the conviction and the sentence under section 302/149 P. P. C. to justify interference by this Court. I refrain from entering into a discussion on questions of fact relating to weight and value of evidence which were argued to some extent before us by the appellant's counsel. For the reasons given I would dismiss this appeal. SHAHABUDDIN, J.--‑I agree with the order, my Lord the Chief justice has proposed in this case which in effect is that the convictions under section 302/149 and sentences of transportation for life imposed by the High Court on the appellants other than Walia be set aside and the appeal be dismissed in other respects. I should, however, like to add some observations of my own in view of the general importance of the question involved. The case for the prosecution was that all the appellants formed themselves into an unlawful assembly with the common object of murdering one Kamira and abducting one 1lst. Zohra knowing it to be likely that she will be forced or seduced to illicit intercourse or forced to marry, that they committed rioting armed with deadly weapons, and that in the prosecution of the common object Kamira was murdered, Mst. Zohra was abducted and a mare of Kamira was stolen‑offences punishable under sections 148, 302/ 149, 366/ 149 and 379/149 The Sessions judge found that the appellants formed an unlawful assembly and used force but that their common object was not to commit murder or to abduct Mst. Zohra with the knowledge that she was likely to be forced or seduced to illicit intercourse or compelled to marry. He, however, found that Walia committed the murder of Kamira and that Goman committed the theft of Kamira's mare. He. therefore, convicted all the appellants for rioting and sentenced them to six months' rigorous imprisonment. He further convicted Walia under section 302 P. P C. and sentenced him to death and Goman under section 379 P. P. C. and sentenced him to rigorous imprisonment for six months. As regards the charge under section 366/149 P. P. C. he found that the appellants could not be convicted under that charge. But he did not record express findings of acquittal in favour of the appellants other than Walia on the charge of 302/149 P. P. C. or in favour of all the appellants on the charge under section 366149 or in favour of all the appellants except Goman on the charge under section 379/149 P. P. C. In view of the fact that there were different charges in respect of the constructive liability for murder, for abduction and for theft, the Sessions Judge should have recorded express findings of acquittal ; but his not having done so does not' mean that he did not in effect acquit the appellants on those charges in respect of which he recorded clear findings of not guilty. In Kishan Singh v. The King Emperor (55 1 A 390.) where the accused had been convicted under section 304 having been tried on a charge under section 302 P. P. C. their Lordships observed that though an express finding of acquittal in respect of the charge of murder was not recorded the conclusion arrived at by the trial Court amounted to an acquittal in respect of that charge The appeal before their Lordships was decided on the assumption that the appellant was acquitted of the charge of murder. 1 therefore, consider that we should proceed in this appeal on the assumption that the appellants were acquitted of those offences in respect of which the Sessions judge came to the conclusion that they were not guilty. All the appellants filed an appeal in the High Court of judicature at Lahore against the respective convictions and sentences imposed on them. The learned judges of the High Court agreed with the Sessions judge that Walia was guilty of murder and the other appellants of the offences of which they had been convicted, but before disposing of the appeal they issued to the appellants other than Walia a notice "to show cause why the finding in regard to the offences committed by them be not altered to that of murder and their sentences enhanced in revision". After hearing counsel for the appellants and the Assistant Advocate‑General the learned judges came to the conclusion that the appellants other than Walia should have been convicted under section 302 P. P. C. by reason of section 149 and convicted those appellants accordingly and sentenced them to transportation for life. The conviction under section 148 P. P. C. against all the appellants and that under section 379 against Goman and the respective sentences awarded under those sections were maintained with the direction that those sentences should run con?currently with the sentences of transportation for life. It was contended for the appellants before us that the evidence on which the conviction of Walia for murder was based should not have been believed and that as stated by 141st. Zohra who was examined as a defence witness Kamira was shot by accident. The learned judges of the High Court considered this contention and came to the conclusion that the evidence for the prosecution was reliable. I see no ground for interference by this Court as far as Walia is concerned. But with regard to the convictions under section 302/149 P. P. C. imposed by the High Court on the appellants other than Walia the contention of the learned advocate that in the absence of an appeal again their acquittal on that charge. the learned judges of the High Court had not jurisdiction to impose those convictions has in my opinion to prevail. The argument was that under section 423, Cr. P. C., it was only in an appeal against an acquittal filed under section 417 that the High Court could interfere with a finding of acquittal, that the appellants other than Walia having been acquitted on the charge under section 302/149 and there having been no appeal against that acquittal by the Government, the High Court in the appeal filed by the appellants could deal onlv with the convictions against which their appeal was preferred, and that under section 423 (1) (b) under which the finding of acquittal purported to have been altered did not confer on an appellate Court power to interfere with a finding of acquittal. On behalf of the Crown it was urged that the words "alter the finding" in section 423 (1) (b) were wide enough to cover the finding of the trial Court that the appellants other than Walia were not guilty under section 302/149 P. P. C. and that under section 439 the High Court could after altering that finding enhance the sentence. There has been conflict of judicial opinion with regard to the interpretation of the words "alter the finding maintaining the sentence" occurring in section 423 (1) (b). Prior to the decision of the Privy Council in Kishan Singh v. Emperor (supra) referred to above, the general trend of decisions appears to have been that in an appeal the conviction appealed from could be so varied as to include an offence of which the appellant bad been acquitted by the trial Court. For instance in Queen Empress v. Jahanulla and another (I L R 23 Cal. 975.) the accused were tried for the offences of rioting, murder and causing grievous hurt with dangerous weapons. The Sessions judge found that the alleged common object was not made out and acquitted the accused on the charge of rioting and convicted them under section 326 P. P. C. On appeal against that conviction the High Court of Calcutta, coming to the conclusion that the evidence was not sufficient to support a conviction under section 326 but that the offence of rioting had been established, altered the conviction into one under section 326/149 and maintained the sentence of rigorous imprisonment for six years imposed by the Sessions Judge. It was contended for the appellants before the High Court that under section 423 the appellate Court could not alter the finding so as to deprive the appellants of the benefit already conferred on them by an acquittal in respect of the offence of rioting. This contention was not accepted and it was held that the finding of the trial Court could be altered and the only restriction on the power to alter it was that the sentence should be maintained. It was, however, observed that in some cases alteration of the finding subject to the condition of the sentence being maintained might not be possible, but as in that case such A difficulty did not arise the question as to how such cases should be dealt with was not discussed. In re K. Bali Reddi (I L R 37 Mad. 119.) this difficulty was solved by holding that the finding could be altered under section 423 and where the maintenance of sentence already imposed was not possible after the alteration as in the case of a conviction under section 304 P. P. C. on a charge under section 302 P. P. C. with a sentence lesser than that of trans?portation for life, the sentence could be enhanced under section 439 Cr. P. C. In that case the appellant before the High Court had been tried for offences under sections 148 and 302 P. P. C. but was convicted only under sections 147 and

304. The High Court altered the finding under section 304 into one under section 302 P. P. C. and sentenced the appellant to transportation for life taking the view that section 439 (4) applied only to a case where the trial has ended in a complete acquittal and not to a case where the trial has ended in a conviction but where the Court has wrongly applied the law or has wrongly found some fact not proved. In Kishan Singh v. Emperor (supra) the accused was convicted under section 304 having been tried on a charge under section 302 P. P. C. and he was sentenced to rigorous imprison?ment for five years. There was no appeal to the High Court by the accused or by the Government. The Government, how?ever, filed a petition under section 439 Cr. P. C. for altering the conviction and enhancing the sentence. The learned judges of the High Court of Allahabad altered the conviction into one under section 302 P. P. C. and sentenced the accused to death. Before the Privy Council it was contended for the appellant that in view of clause (4) of section 439 Cr. P. C. the finding of acquittal in respect of the offence under section 302 could not be set aside and as Government could have appealed under section 417 of the Cr. P. C. they could not in view of clause. (5) of section 439 Cr. P. C. ask the High Court to interfere in revision. Their Lordships of the Privy Council allowed these contentions observing that clause (4) of section 439 applied to a partial acquittal also and that the view expressed in the Madras case cited above that the provision referred only to a complete acquittal in respect of all charges or offences and not to a case where the accused has been acquitted of the charge of murder but convicted of the minor offence of culpable homicide was not correct. But it was also observed that the facts of the Madras case were different from those before their Lordships as the accused had appealed in the Madras case and that it was not necessary for their Lordships to express any opinion whether the facts of the cited case justified the decision at which the learned judges arrived. Their Lordships, however, referred with approval to the decision in Empress v. Sheodarshan Singh (65 Ind. Cas. 858.) in the following words :‑ "The headnote of the Allahabad case is as follows : 'An accused person was charged with both murder and culpable homicide not amounting to murder. He was acquitted on the former charge and convicted on the latter. On a perusal of the sessions statement, notice was sent to the accused to show cause why be should not be convicted of murder and punished accordingly. Held, on return of the notice, that the High Court had no power, except through the medium of an appeal on behalf of the local Government, to convert the acquittal into a conviction'." "The learned judges in giving judgment said as follows: 'We cannot however change the conviction into a conviction for murder. Sheodarshan Singh was acquitted by the Sessions judge of the offence of murder and we cannot in revision convert a finding of acquittal into one of conviction. The only method by which it would be possible to obtain a conviction of murder would be by an appeal by the Government against the acquittal." Their Lordships are of opinion that the above is a correct statement of law ; it is indeed no more than a repetition of the provisions of the material sections of the Code of Criminal Procedure ". After this decision, there was difference of opinion as regards its scope. According to one view the effect of this decision was that neither an appellate Court nor a revisional Court could alter a finding of acquittal into one of conviction while the other view was that as their Lordships did not deal with the powers under section 423 the authority of the earlier cases remained sub?stantially unshaken. In Sarda Prasad v. Emperor (A I R 1937 All. 240.) Sulaiman. C. J. and Bannet, J. while referring to the decision in Kishan Singh's case observed: "Their Lordships approved of the ruling of this Court in I L R 44 All. 332 that neither an appellate Court nor a revisional Court has power to reverse the finding of acquittal and convert it into one of conviction". In Sarda Prasad's case the accused, who had been tried by a Magistrate for the offences under section 60‑A and section 60‑F of the U. P. Excise Act was convicted under section 60‑F and acquitted under section 60‑A. On appeal the Sessions judge set aside the conviction under section 60‑F and convicted the appellant under section 60‑A of the U. P. Excise Act, though he had been acquitted of that offence by the trial Court. The Sessions judge came to the conclusion that the offence under section 60‑F had not been established but that the offence under section 60‑A was established. There was no appeal preferred by Government from the acquittal, but the accused went up in revision and the learned judges of the High Court took the view that in such a case the finding of acquittal could not be altered under section 423 and they ordered a retrial. In Jado Rahim v. Emperor (A I R 1938 Sind 203.) the accused who was tried for murder was convicted under section

304. On appeal the Sind judicial Commissioner's Court found that there was sufficient evidence to warrant a conviction for murder, but it was held that the conviction could not be altered to one under section 302 P. P. C. as there was an acquittal on that charge. But a Full Bench of the Lahore High Court in Bawa Singh v. The Crown (A I. R 1941 Lah. 40,) distinguished the ruling in 55 I A 390 as applicable only to the exercise of the powers of the High Court under section 439 Cr. P. C. The learned judges took the view that the observations of their Lordships of the Privy Council in respect of Re Bali Reddi, that they did not consider it necessary to express any opinion whether the facts of the Madras case justified the decision at which the learned judges of the High Court had arrived, indicated that the question whether in its appellate jurisdiction the High Court could not by reason of the combined operation of sections 423 and 439 convert a finding of an acquittal into one of conviction and enhance the sentence, was left open. In the Lahore case the appellant before the High Court, having been tried on the charge of murder, was convicted only under section 304 and was sentenced to six years rigorous imprisonment. When his appeal came up before a Single judge notice was issued to him to show cause why the conviction should not be altered to one under section 302 P. P. C. The Provincial Government had not filed an appeal and the question whether in the absence of such an appeal it was within the power of the High Court to set aside the order of acquittal under section 302 P‑P. C. either sue motu or on the application of the complainant was referred to the Full Bench. It was argued that the conviction of the appellant under section 304 on a charge under section 302 P. P. C. involved an acquittal under section 302 P. P. C,, that the conversion of the finding of conviction under section 304 into one under section 302 would involve a reversal of a finding of acquittal, and that power to reverse an acquittal was not given under section 423 (1) (b) Cr. P. C. It was point out that the word 'alter' having been used in contradistinction to the word 'reverse' in section 423 (1) (b) must be taken to mean a change not having the effect of reversal. Dalip Singh, J. who delivered the leading judgment of the Bench in repelling this contention observed that there was no such limitation in the section itself on the meaning of the word 'alter', and that if it were intended that the word 'alter' should not include a reversal of an acquittal such as is implied in a conviction under section 304 on a charge under section 302 P. P. C. the Legislature would have inserted a clause in section 423 similar to clause (4) in section 439 Cr. P. C. He took the view that the only restriction on the power of the appellate Court to alter the finding was that it was obliged to maintain the sentence, but that as regards the High Court the matter stood on a different footing as under section 439 (1) the High Court could enhance the sentence after altering the finding. The learned judge however while dealing with the decision in Sarda Prasad v. Emperor observed: "It was rightly pointed out by the learned judges if I may say so with all respect that the appellate Court bad no power to do so. This was not an alteration of the finding under section 60‑F but was a reversal of the acquittal under section 60‑A and this the appellate Court bad no power to do". It appears to me that in view of this observation the broad view expressed by the learned judge in the earlier portion of his judgment, has to be taken to be confined only to a case, where the accused having been tried for a major offence is convicted of a minor one. Subsequent to this decision, a Full Bench of the Allahabad High Court had to consider the question whether a Court of appeal has power under section 423 (1) (b) (2) to alter a finding of acquittal into one of conviction Zamir Qasim and others v. Emperor (1). Three of the five judges who constituted the Full Bench held that an appellate Court had such power subject to the other provisions of the Code and also the condition that the sentence imposed by the trial Court should be maintained. The learned Chief Justice who was one of the judges who took this view distinguished the decision of the Privy Council in Kishan Singh's case in the same manner as the Full Bench of the Lahore High Court. The other two judges, Mulla and Hamilton JJ. who dissented from the majority view held that a Court of appeal was not empowered under section 423 (1) (b) (2) to alter a finding of acquittal into one of conviction and that such a conviction could be altered only in an appeal from an acquittal filed under section

417. According to Mulla J, the process of altering a finding in an appeal from conviction must operate only within the limits prescribed under sections 236, 237 and 238 Cr. P. C. and this process of alteration must stop whenever it comes up against a finding of acquittal and a finding of acquittal can be converted into one of conviction only in an appeal under section

417. In my opinion the minority view of the Full Bench in Zamir Qasim v. The Emperor as expressed by Mulla J, and not the view taken by the Full Bench of the Lahore High Court in Bawa Singh's case, is the correct view as it accords with the language of section

423. In section 423 the powers of an appellate Court in an appeal from an order of acquittal and those exercisable in an appeal from conviction are kept distinct and separate. Clause (1) (a) deals with appeals against acquittal, and that the terms acquittal in this clause refers not only to a complete acquittal but also to cases of partial acquittal is no longer a controversial point. Clause (1) (b) opens with the words 'in an appeal from a conviction' and the words 'reverse the finding' with which clause (1) (b) (2) starts can refer only to the finding of conviction. Then follows clause (1) (b) (2) which opens with the words "alter the finding maintaining the sentence". Here again 'the finding' in the context in which the expression occurs can refer only to the finding of conviction appealed from. The words `maintaining the sentence' which cannot be dissociated from the words 'alter the finding' also point to the same conclusion, for, it is only a finding of conviction that is accompanied by a sentence. That being so, the power of alteration given under this provision is naturally in respect of a finding of conviction, and if in the exercise of that power a finding of acquittal is involved then the alteration should not be made, as otherwise a finding of acquittal would get reversed, which can be done only in an appeal filed against an acquittal. Dalip Singh J. observes, as already pointed out, that if it were intended that the word 'alter' should not include an acquittal such as is implied from a conviction under section 304 on a charge under section 302 P. P. C. the Legislature would have included in section 423 a provision similar to section 439 (4). But when the language of section 423 (1) (b) itself clearly indicates such a restriction. no separate provision of restriction is necessary. It is significant that in section 423 (1) (c) which deals with an appeal from 'any other order' power is given to alter or reverse such order. This again indicates that the power to alter does not include the power to reverse. As pointed out already the broad view expressed by Dalip Singh J. in an earlier part of his judgment while discussing the meaning of the word 'alter' has to be taken to be modified by his expressing agreement with the decision in Sarda Prasad v. Emperor. In the opinion of the learned judge the substitution of the finding of acquittal under section 60.A of the Excise Act in the Allahabad case by a finding of conviction under section 60F of the same Act in respect of which there was an acquittal was not an alteration of the finding but the reversal of a finding of acquittal. It is difficult to see the difference in principle between that case and the one before‑ the learned judge where obviously there was an acquittal under section 302 in view of the conviction under section 304 on a charge under section 302, and what was sought to be done was in effect to reverse that acquittal. The only difference between these two cases was that while in the Allahabad case the acquittal was on one of two separate charges, in the case before the Full Bench of Lahore the acquittal was implied from a conviction under section 304 on a charge under section 302 P. P. C. but the decision in Kishan Singh's case does not make a difference between such acquittals. In fact Dalip Singh J. himself observes : "In the case of an appeal from an acquittal it is obvious that the appeal might be directed against both a complete acquittal and a partial acquittal ; that is to say, a man might be charged under section 302 P. P. C. and completely acquitted of any offence or a man might be charged under section 302 and convicted, say under section 304." The learned judge, however, goes on to say that in the latter case it is not necessary to set aside any finding that the man is innocent as he has been found guilty of an offence and therefore all that is necessary for the appellate Court is to determine of what offence he is to be found guilty. The same reasoning would apply to the case in Sarda Prasad v. Emperor for there also the accused was found guilty of one offence and the appellate Court found that he was guilty not of the offence he was convicted of but of the offence of which he was acquitted ; and yet the learned judge held that the decision that the finding could not be altered so as to affect the acquittal was correct. If the intention of the Legislature was that as long as the appellant is not innocent the appellate Court could alter the finding so as to convert his acquittal on another charge or of a major offence into conviction it would have used language indicating that the `acquittal' in sections 423 and 439 means only a complete acquittal. But such a construction is not possible after the decision in Kishan Singh's case. According to the majority view of the Allahabad Full Bench in Zamir Qasim's case, as long as the sentence is maintained a finding of acquittal may be altered under section 423, (1) (b) (2). Apart from the fact that on the language of section 423 (1) (b) (2) such a view cannot be accepted, it is not possible to maintain a sentence of imprisonment awarded in respect of a conviction under section 304 when it is altered into one under section

302. There may be cases where the trial Court has awarded a sentence of transportation for life in respect of a conviction under section 304, and in such cases the sentence can legally be maintained, after an alteration of the finding into one under section

302. But it cannot be assumed that the Legislature intended that the exercise of the power under section 423 Cr. P. C. should turn on the chance of the trial Court imposing a sentence which can be legally maintained in respect of the altered finding. Dalip Singh J. observed that the High Court can alter the finding to any it considers suitable and that as soon as that is done it can enhance the sentence under section 439 clause (1) in its revisional jurisdic?tion. But the power to alter the finding under section 423 (1) (b) is subject to the condition that the sentence imposed by the lower Court is maintained and similarly the power to enhance the sentence under section 439 is subject to the condition that it should not be used to convert a finding of acquittal into one of conviction. There can be no objection to the fusion of the powers under section 423 arid those under section 439 provided the respective conditions on which such powers are to be exercised are observed, but the fusion of those powers as suggested by the learned judge would involve total disregard of the conditions imposed in the respective sections on their use. In re. Ghun Bidya and others (62 I A 36.) relied on by the learned judge in this connection there was no alteration of the finding under section

423. The Sessions judge had convicted the accused of murder and sentenced them to transportation for life and on appeal the High Court gave notice to the accused to show cause why the sentence should not be enhanced, and after hearing them ordered them to be sentenced to death. It was contended before their Lordships that as under section 423 the High Court had no power to enhance the sentence it could not have recourse to its powers of revision. In repelling this argument their Lordships observed: "Their Lordships are clearly of opinion that when the High Court has before it on appeal a record of a criminal proceeding the condition precedent is performed and the High Court can then though the record has only come to its knowledge in the appellate proceeding proceed to exercise its revisional power if it chooses to do so". This decision, therefore, does not apply to the point under consideration. It is true that their Lordships of the Privy Council in their judgment in Kishan Singh's case distinguished the Madras case (37 Mad. 119) on the ground that the accused there had appealed, but it is significant that they did not say that because there was an appeal in the Madras case there was no bar to the reversal of the acquittal in that case. Th^ir observation that it was not necessary for them to express any opinion whether the facts of the Madras case justify the decision arrived in it, does not necessarily make their decision in Kishan Singh's case inapplicable to the question now under consideration. In a latter case King Emperor v. Dahu Raut (62 I A 129.) their Lordships while referring to the above Madras case in another connection observed that the decision on the main point in that case had been doubted by the Privy Council in Kishan Singh's case. However, their Lordships' observation in Kishan Singh's case that the passage they quoted from the judgment in Emperor v. Sheodarshan Singh 'reproduced in the earlier part of this judgment) stated the law correctly, I think, supports the view that it is only in an appeal under section 417 and not under section 423 (1) (b) that a finding of acquittal can be converted into one of conviction. The decision in Kishan Singh's case directly lays down that the powers under section 439 cannot be exercised to convert a finding of even a partial or implied acquittal into one of conviction. The powers of the High Court under section 439 are wider than those under section 423, as the latter can be exercised only when an appeal is filed whereas under section 439 a High Court can interfere in the interests of justice even without either party moving it. If under its wider powers the High Court cannot convert a finding of acquittal into one of conviction, it seems to follow that it cannot do the same under section 423 (1) (b) (2) also. It could not have been the intention of the Legislature that what the High Court could not do suo motu' in the interests of justice, it should be able to do merely because ail person who has been partially acquitted avails of his right to appeal from the conviction imposed on him. I, therefore, consider that the view taken by Mulla J. in the Allahabad Full Bench case is the correct view and that Bawa Singh's case was wrongly decided. As far as the present case is concerned, it is clear that the learned judges of the High Court had no jurisdiction to interfere with the finding of acquittal arrived at by the trial Court in respect of appellants other than Walia on the charge under section 302 read with 149 P. P. C. The appeal of the appellants other than Walia before the learned judges was from a conviction under section 148 and as far as the appellant Goman was con?cerned it was also from a conviction under section 379 P. P. C. The learned judges maintained these convictions as well as the sen?tences that had been imposed in respect of them. That being so, no question of altering the finding of conviction arose, and what was done by the learned judges was a clear reversal of the finding of acquittal in respect of which there was no appeal filed by Government. Even the observations in the decision of the Full Bench of the Lahore high Court referred to above (Bawa Singh's case) do not support the action taken by the learned judges in the present case. The Full Bench did not hold in that case that even if the finding appealed from is confirmed the appellate Court can, instead of dismissing the appeal, proceed, in the absence of an appeal against the acquittal on the other findings, to scrutinise and reverse them. CORNELIUS, J.--‑I agree with the order proposed in this case by My Lord the Chief Justice As we are disagreeing with the judgment of the High Court on an important point, and it has also been necessary to examine the correctness of an authoritative decision of the High Court of Lahore, viz that in the case of Bawa Singhs (I L R 1942 Lah. 129 (F. B.)) it is desirable that I should state my own views on the important questions involved. The principal facts of the incident out of which the case arose were that a Mst. Zohra was abducted from the house of one Kamira, with whom she had been living although she was married to another, and this was carried out with a considerable show of force, in the course of which some pistol shots were fired in order to create terror, but three were fired by Walia at Kamira, and one of them caused his death. For purposes of carrying Mst. Zohra away, a mare belonging to Kamira was also removed. In relation to these facts, which are as found by the trial Court as well as the High Court, four separate charges were preferred against seven accused persons. These may be compendiously stated as an accusation that they had formed an unlawful assembly, with the common object of murdering Kamira and abducting Mst Zohra, and had committed the offence of rioting armed with deadly weapons in carrying out the common object, Kamira was murdered by Walia, Mst. Zohra was abducted with the special intention specified in section 366 P. P. C., and Kamira's mare was stolen, and for these several specific acts, constructive liability extended by the application of section 149 P P. C. to each of the accused persons. The Sessions judge however, although he found that the offence of rioting while armed with deadly weapons, punishable under section 148 P. P. C. was committed by each of the, accused persons, considered that the act of murder was beyond the common object of the unlawful assembly, and for this only Walia was responsible, and similarly, the mare was stolen by Goman alone and this too was not within the common object of the group, so that only Goman could be convicted under section 379 P. P. C. As for the offence relating to the 'abduction of Mst. Zohra it was held that the necessary intention viz. that she should be forced or seduced to illicit intercourse or compelled to marry a person against her will was altogether missing since she was being abduct?ed in the interest of her own husband. Consequently, Walia was convicted under sections 302 and 148 P. P. C., the sentences being death and six months' rigorous imprisonment respectively. Each of the other six persons was convicted under section 148 P. P. C., and awarded six months rigorous imprisonment, and out of their number Goman alone was convicted under section 379 P. P. C. and awarded six months' rigorous imprisonment, to be served after his other sentence. The trial judge made no express order in relation to these six accused persons, on the charge under section 302/149 P. P. C. yet his conclusion that constructive liabilty for murder did not extend to these persons makes it clear that, on this separate charge his finding in relation to these persons was one of acquittal. All the seven convicts appealed in the High Court. By an intermediate order, a Division Bench of the High Court granted bail to the six accused persons other than Walia, and at the same time directed the issue of notice to them in the following terms:

"Notice to those who have been convicted under section 148 to show cause why they should not be convicted under sec?tion 302/149 and the sentence enhanced " After hearing counsel for the appellants as well as an Assistant Advocate‑General for Crown, the High Court confirmed the convictions of Walia under section 302/149, but reduced his sentence of death to transportation for life In relation to the other six appellants the High Court held that on the facts, they were constructively liable for the murder of Kamira and the following direction was made:‑ " While disposing‑ of the appeal of Sadiq, Fazil, Goman, Allah Dad. Shera and Dullah, therefore, I alter the finding, and hold them to be guilty of murder, and acting on the revision side enhance the sentence to that of transportation for life." In the course of arguments before us, the important conten?tion was raised that, having expressly confirmed the convictions of the six appellants other than Walia under section 148, the High Court acted without jurisdiction in recording further convictions under sections 302/149, since these appellants must be deemed to have been acquitted by the trial Court of this specific charge. The point was not expressly taken in the grounds of the petition for special leave, and does not find mention in the order of this Court granting such leave, but, going as it does to the jurisdiction of the High Court it was allowed to be argued. In this judgment I propose to consider only the question whether, in the circumstances of the case, it was within the powers of the High Court to record the convictions under sections 302/149 P. P. C. It is clear that the levying of force and violence by the unlaw?ful assembly, the murder of Kamira, the theft of his mare, and the forcible removal of 141st. Zohra were a series of acts constitut?ing a single transaction. All the offences committed by all or any of the persons who took part could be charged and brought to trial together, vide section 235 (1) Cr. P. C., and all these persons could also be tried together, vide section 239 (d) Cr. P. C. Each of the offences committed in the course of the transaction was separately and specifically charged. The duty of the Court trying the case was to record a finding in respect of each of the offences charged in relation to each accused person, and to follow it up with an operative order of conviction, or as the case might be, acquittal. The trial judge was careful only to record his findings in respect of the charges on which be found the various accused persons guilty, His omission to record expression findings in relation to the other offences charged cannot however affect the substantive position namely that in the absence of express reservation by the trial judge, in respect of each of these offences, for the purposes of law, he must be deemed to have recorded a finding of not guilty and to have made an operative order of acquittal in consequence of such finding. The case is different where only certain of the elements of an offence charged are found to be established, which constitute a diffe?rent offence, and the conviction is in relation to the latter offence only. In such a case there is by implication a finding of acquittal in relation to the offence charged, but no order of acquittal need follow thereon. (As will be seen presently, in certain respect such a finding has in law the same effect as an order of acquittal). Under section 238 subsection (1), the Court is empowered to convict of the offence constituted by the facts found, even though it was not charged and is not required to record any order in relation to the offence actually charged. As reference to section 377 Cr. P.C. will show it is the duty of the Court to state in its judgment each point for determination and the decision thereon and there can be no question but that a formally preferred charged as a major point for determination in the case on which the decision must take the form of a finding either of guilty or not guilty. It is important also that with reference to every charge of an offence which is preferred against an accused person, there should be an operative order of conviction or acquittal, following upon a finding of guilty or not guilty. The matter cannot be left in the air, so to speak, in view of the rights which accrue to a person, in relation to a previous acquittal or conviction. These rights are summarised in section 403 Cr. P. C. Therefore, I entertain no doubt that the examination of the present case must proceed on the basis that in relation to the six appellants other than Walia, on the charge of the offence punishable under section 302/149 P. P. C. the finding of the trial Court was a finding of not guilty which must be deemed to have been effectuated by an order of acquittal. On that basis I can see no escape from the conclusion that being seized only of an appeal from the conviction under section 148 P. P. C? as against the six appellants in question, the High Court had no power to alter the order of acquittal of the offence of constructive murder, to an order of conviction. No further authority is needed for the proposition than the reference to the case of Sheo Darshan Singh (I L R 44 All. 332) which is contained in the judgment of the Privy Council in the case of Kishan Singh (55 I A 390) The reference to Sheo Darshan Singh's case is brief and may be cited in full :‑ " The headnote of the Allahabad case is as follows : An accused person was charged with both murder and culpable homicide not amounting to murder. He was acquitted on the former charge and convicted on the latter. On a perusal of the sessions statement, notice was sent to the accused to show cause why he should not be convicted of murder and punished accordingly. Held, on the return of the notice that the High Court had no power. except through the medium of an appeal on behalf of the Local Government, to convert the acquittal into a conviction." The learned Judges in giving judgment said as follows : We cannot, however change the conviction into a conviction for mur?der. Sheo Darshan Singh was acquitted by the Sessions judge of the offence of murder and we cannot in revision convert a finding of acquittal into one of conviction. The only method by which it would be possible to obtain a conviction of murder would be by an appeal by the Government against the acquittal.' Their Lordships are of the opinion that the above is a correct statement of the law ; it is indeed no more than a repetition of the provisions of the material sections of the Code of Criminal Procedure. The only point of difference between the present case and that of Sheo Darshan Singh is that in the present case there is no express acquittal on the charge of constructive murder, but I have already given reasons for my view that the omission is without effect in law in the relevant respect. I am therefore clearly of the opinion that, in relation to the six appellants in question " the only method by which it would be possible to obtain a conviction of murder would be by an appeal by the Government against the acquittal." The same conclusion may also be reached on the principle that where a provision is made by law for a certain thing to be done in a certain way, and the thing to be done is one which imposes an obligation upon the subject, it may be done in that way only and cannot be effectively done in any other way. Appeals against orders of acquittals are provided for in section 417, and the High Court's powers in dealing with them are prescribed by section 423 (1) (a) Cr. P. C. In my opinion where what is sought to be interfered with is an order of acquittal, or an equivalent order, the only effective mode is that provided by clause (a) of section 423 (1). The provisions of section 439 are not available, where an appeal is not preferred against an f acquittal, in view of the express provisions of subsection (5) of that section It would, in my opinion, be an unjustifiable extension of the powers conferred by clause (b) of section 423 (1) to construe this provision, which relates to appeals from convictions, in a sense enabling the Court to interfere with express orders of acquittal or their equivalent, made in the same case. I turn now to the second question, namely, whether the case of Bawa Singh can be supported. The question does not directly arise in the present appeal, but it was discussed at length in the course of the arguments. I propose to place my answer on the consideration whether Bawa Singh's case can stand with the decision of the Privy Council in Kishan Singh's case. If it proceeds on a principle which runs counter to anything decided in the latter case, then in view of section 212, Government of India Act, 1935, it must be held to be of no effect to the relevant extent. Proceeding on this basis, I find it unnecessary to examine the authorities in India and Pakistan, and will content myself with saying that the view taken in Bawa Singh's case has been doubted in several weighty judgments of High Courts, and is not generally accepted in Pakistan, outside the Punjab Province. In Kishan Singh's case the judicial Committee was dealing with a decision of the Allahabad High Court under the revisional jurisdiction. Kishan Singh had been placed on trial on a charge under section 302 P. P. C., but had been convicted under section 304 P. P. C. The Crown preferred an application under section 439 C. P. C. to the High Court seeking a conviction under section 302 P. P. C. The High Court accepted the application and altered the conviction as prayed. The Privy Council held that there had been an acquittal of the charge of murder, and their Lordships were "further of opinion that the Local Govern?ment could have appealed to the High Court against that acquittal in pursuance of the provisions of section 417 of the Code of Criminal Procedure." Such an acquittal could not, in the opinion of the Privy Council be converted into a conviction on a revision petition, in view of the provision of subsection (4) of section 439 Cr. P. C. The attention of their Lordships was drawn to the decision in a Madras case, In re : Bali Reddi (L R 37 Mad. 119.) where the accused persons bad appealed to the High Court against their conviction under sections 147 and 304 of the Indian Penal Code, and the High Court, as a Court of revision had given them notice to show cause why they should not be convicted for murder rind by sentenced for that offence. The facts were almost precisely similar in Bawa Singh's case, and in both these cases, the judges of the respective High Courts held that they had power to alter the finding of guilty under section 304 to a finding of guilty under section 302, the difference being that in the Lahore case, the alteration was effected on the appellate side under section 423 (1) (b) Cr. P. C , while in the Madras case the power used was that of the High Court, under section 439 (1), to exercise all the powers of a Court of Appeal under section 423 (1) (b). Their Lordships did not consider it necessary "to express any opinion whether the facts of the cited (Madras) case would justify the decision at which the learned judges arrived," and this reservation was relied upon by the Full Bench of the Lahore High Court in Bawa Singh's case for holding that Kishan Singh's case did not affect in any way the powers exerciseable by the High Court under section 423 (1) (b) as an appellate Court. In Bawa Singh's case the learned judges have considered a number of specific circumstances in which, in their opinion, if findings of acquittal were excluded from the power to 'alter the finding' belonging to an appellate Court, dealing with a conviction recorded in the same case, anomalous or undesirable results would accrue. That, however, cannot be the criterion in judging whether the interpretation of section 423 (1) (b) adopted by the Lahore High Court is consistent with the view of the Privy Council in Kishan Singh's case. The essential question seems to me to be whether the acquittal which the Privy Council held to have been awarded to Kishan Singh on the charge under section 302 was also held to be tantamount to an order of acquittal, and not a mere finding of acquittal. The learned judges in the Lahore case appear to have taken the view that the judicial Committee regarded the acquittal as a finding of acquittal, which was of course protected against conversion Into a finding of conviction by subsection (4) of section 439, but which was nevertheless subject to the power of the appellate Court to "alter the finding," and by such alteration, a conviction of the offence originally charged might be brought about. This view is entirely inconsistent with that which clearly appears from the judgment in Kishan Singh's case. As has been seen, their Lordships expressly referred to section 417 Cr. P. C. as being available for an appeal against such an acquittal. The words of section 417 make it clear that the provisions of this section are not available against any mere findings of a Court, but only against " an original or appellate order of acquittal." The power of interfering with an "order of acquittal" is provided by section 423 (1) (a) Cr. P. C. and in this respect, the provisions of clauses (a) and (b) of section 423 (1) must be regarded as mutually exclusive, inter se, This aspect of the effect of the decision in Kishan Singh's case was not considered in the judgments in the Lahore Full Bench case. In my opinion, there is no room for doubt that the judicial Committee regarded an acquittal such as their Lordships found in Kishan Singh's case, on the charge under section 302, to be equivalent in relevant respects to an order of acquittal and it follows that such an acquittal is saved, not only from conversion into a conviction on the revisional side, but also from alteration on the appellate side, in an appeal from a conviction in the same case. It also becomes clear that such an acquittal carries the condition that the only method by which it would be x possible to obtain a conviction of murder would be on appeal under section 417 Cr. P. C. These results seem to me to flow directly from the actual decision of the judicial Committee that an appeal under section 41 7 Cr. P. C. was competent against the acquittal which their Lord?ships had found in that case. The effect of that decision must be confined to its particular facts, of which the principal fact is that there was a charge under a particular section, and no convic?tion under that section but only of a minor offence. There is, in my opinion, no need and no justification for extending the effect of the authority to different facts e.g. cases of charges in the alternative, where a conviction on one of the charges does not necessarily involve acquittal on the alternative charge, on which the Court may even decline to express an opinion. If however, there is express acquittal on the alternative charge, recourse to Kishan Singh's case is not necessary for the proposition that such an acquittal is not susceptible of alteration under section 423 (1) (b). Where on a charge of an offence, a person is held guilty of a lesser offence, by reason of circumstances of mitigation being found, the appellate Court would be precluded from interfering with the acquittal of the offence charged, in view of the Privy Council decision in Kishan Singh's case, otherwise than upon appeal under section 417 Cr. P. C., but it does not follow that it must acquit on an appeal from the conviction, if it finds the elements of mitiga?tion not to be established. As regards the appellant Walia, we are agreed that his appeal be, and it is hereby dismissed. As regards the appellants Shera, Goman, Du11ab, Allah Dad, Sadiq and Fazil, in accordance with the view of the majority, we confirm the convictions and sentences awarded to them under section 148, P. P. C., and we also confirm the separate conviction and sentence of Goman under section 379 P. P. C., but we allow the appeal of these persons so far as their convictions under sections 302149 P. P. C. are concerned and acquit them 'of this charge. If these six convicts have already served out the sentence awarded to them under section 148 P. P. C., and in the case of Goman, also under section 379 P. P. C., they shall be set at liberty forthwith. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.