P L D 1962 (W (PLP)

M. M. Saeed for Applicants. S. Murtuza Hussain for Respondent. Dates of hearing : 22nd and 23rd August 1962. The applicants were convicted by the City Magistrate Shikarpur under section 392/323, P. P. C. on 31‑5‑

61. They filed an appeal and the learned Additional Sessions Judge, Sukkur (Mr. Ghulam Hussain Ansari), on 15‑1‑62, rejected their appeal, but altered the conviction from section 392/323 to one under section 394 P. P. C. and maintained the same sentence, in spite of his remarks :‑ "Section 394, P. P. C. is, however, graver offence than the offence under section 392, P. P. C. In appeal I cannot convict the appellants of a graver offence." In this revision application the learned counsel for the applicants urged that there was no evidence against the applicants for their conviction either under section 392/323, P. P. C. or under section 394, P. P. C. I have gone through the evidence and I find that there is reliable evidence of the three persons who were sleeping that night, namely, P. W. Ghazi, Exh. 1, P. W. Imamuddin Exh. 2 and P. W. Parial Exh.

9. The evidence of these witnesses discloses that two of the appellants Arbello and Madad had stood over Parial with lathes, where he was sleeping, while the remaining applicants Pinio and Hashim had removed Parial's mare. When Parial got up he was given injuries by Arbello and Madad. The remaining; two P. Ws. Ghazi and Imamuddin woke up and came to the help of Parial while the applicants who were taking away the mare left it and attacked Parial, Ghazi and Imamuddin who were all injured. Arbello was caught on the spot. This evidence has been believed by the trial Court as well as the learned Sessions Judge. I also believe it to be reliable and true.

2. The question will be what offence will be held to be established on the above evidence. In my view the offences under section 392 was complete as soon as the applicants Arbello and Madad stood, with their weapons, over Parial, while the other two applicants removed the mare. Arbello and Madad had by their such act caused fear of instant wrongful restraint' in order to the commission of theft by the other two applicants. The offence of causing hurt was perhaps not related to the offence i.e., hurt was not caused in order to take away the stolen mare but was caused in order to rescue Arbello who had been caught. The offence, therefore; would fall under section 392/323 as held by the learned City Magistrate.

3. The powers of the Appellate Court in an appeal against a conviction are given under section 423 (b) (2). It is not denied that the Appellate Court could alter the finding but such alteration has to be within the frame work of the powers given under Criminal Procedure Code. Section 423 (b) (2) is the only section which empowers an appellate Court to alter the finding and convict an accused for an offence other than the offence charged, but only when the facts are proved which reduces the offence charged to a minor offence. Sultan Ahmad v. The State (P L D 1960 S C 173). An appellate Court is not permitted to convict for a graver offence than the offence charged (69 I C 628). It is not disputed that an offence under section 394 is a graver offence than the offence under section 392/323, P. P. C. originally charged. The conviction of the applicants awarded to them by the Sessions Court under section 394 is altered to one under section 392/323 as awarded by the trial Court. The sentence awarded does not call for any reduction and the same is maintained. With this modification in the judgment the revision application is dismissed. K.B.A. ??????????? Petition dismissed.