1980 PLP 356 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑ This appeal through special leave is directed against a revisional order dated 20th January, 1975 by the Lahore High Court, whereby it was directed that the appellant be retried for offences under sections 409 and 420, P. P. C. No one has appeared for the appellant. We treat it as Jail Appeal and proceed to dispose it off on merits. The appellant was employed as Property Tax Inspector. Amongst others, his duty was to collect the tax and deposit it is the District Council Fund. On 15th August, 1967. he collected Rs. 515 as tax. He deposited Rs. 200 and allegedly embezzled Rs.

315. On a report from: the District Council, a case was registered against him under section 409;420, P. P. C. on 10th October, 1967. When arraigned for trial the appellant pleaded guilty with the state ment that he had deposited Rs. 315 before the registration of the case. A learned Special Judge convicted the appellant, but taking a lenient view of the matter sentenced him to only a fine of Rs.

45. One Master Ilahi Bux made a complaint to Lahore High Court against the trial Judge as also the appellant. The matter was dealt with on the revisional side under section 439, Cr. P. C. During the hearing it was pleaded before the High Court from the appellant's side that "according to the rules he should have deposited the amount in question within one month of the receipt of the amount but he did it after four days. According to him therefore no offence was committed". As the trial had concluded on simple plea of guilty, a learned Single Judge, after noticing the fact that there was "the evidence to determine this latter point", thought that there was no other alternative except that the conviction be set aide and case remanded for fresh trial. It was ordered accordingly. Leave was granted to consider the contention raised by the appellant' counsel "that even if the sentence passed by the Special Judge was found to be disproportionately short or illegal there was hardly any justification in law for the learned Judge in the High Court to order a retrial particularly when the High Court itself as fully competent to rectify the illegality". Learned Assistant Advocate‑General has argued that in a revision for enhancement of sentence the High Court is competent by virtue of sub section (6) of section 439 to set aside the conviction. The appellant invoked the said power and sought acquittal on the ground of payment with in the period prescribed by the rules. As the record was silent about this plea, the High Court was justified in setting aside the conviction and directing a retrial. We agree with the learned Assistant Advocate‑General. The impugned order was passed on a plea of innocence raised before the High Court. It was partially allowed and the case was remanded for fresh trial because there was not enough material on record. There is no force is this appeal. It is accordingly dismissed. Appeal dismissed.