P L D 1984 Lahore 177 (PLP)

(c) Penal Code (XLV of 1860)‑-- ‑ ....‑ Ss. 325 & 326‑Criminal Procedure Code (V of 1898), S. 439‑A Conviction of accused altered from S. 325. (lesser offence) to S. 326, P. P. C. (bigger offence) in revision‑Order, held, without jurisdiction and inoperative. Mian Sher Alam for Appellant. Mian Najamuzzaman for the State. Date of hearing : 14th December, 1983. Nadir, Anwar and ZuIfiqar alias Zulfu were sent up for trial for having murderously assaulted Ahmad Khan. Mr. Rafique Ahmad Awan, Magistrate, Gujrat, on 24‑1‑1980 convicted Nadir under section 325, P. P. C. and sentenced him to 2 years' R. I. Zulfu and Anwar were acquitted. Nadir went up in appeal. Rehmat Khan, informant, preferred a revision petition against the acquittal of Auwar and Zulfu and for the enhancement of the sentence of Nadir. On 31‑8‑1981 Mian Habib‑ur‑Rehman, Additional Sessions Judge, Gujrat, dismissed the appeal while accepting the revision, altered the convic tion of Nadir from under section 325, P. P. C. to section 326, P. P. C. and enhanced his sentence to 4 years' R. I. with a fine of Rs. 1,000 in default to undergo six months' R. I. further. By the same order, acquittal of Anwar and Zulfu was also set aside; they were convicted under section 326, P. P. C. and sentenced to 5 years' R. I. each and fined Rs. 1,000 in default to undergo six months' R. I. further. The convicts have preferred two separate appeals Criminal Appeal No. 534 of 1982 and No. 525 of 1982 and a petition under section 561‑A, Cr. P. C. (Criminal Miscellaneous No. 280‑Q of 1982). This order will dispose of the three matters.

2. Learned counsel for the appellants contended that an appeal on behalf of Anwar and Zulfu was competent because they were convicted for the first time by the Additional Sessions Judge. Learned State counsel contended that since the order was passed by the Additional Sessions Judge in his revisional jurisdiction a second revision would, therefore, not be competent. As such a petition under section 561‑A, Cr. P. C. was the only appropriate remedy in the case of Nadir.

3. There can be no dispute about the fact that under section 439‑A, Cr. P. C., the Additional Sessions Judge could not convict the acquitted accused in revision, therefore, the impugned order on the face of it is without' jurisdiction and is liable to be set aside Exercising the inherent powers under section 561‑A, Cr. P. C. the impugned order is set aside.

4. Learned counsel for Nadir accused contended that on facts it was a case of grave and sudden provocation for Nadir because it is the prosecution case itself that he suspected Ahmad Khan injured of having illicit relationship with his wife. At the trial, Nadir took up the plea of grave and sudden provocation and admitted having caused hurt to his victim Ahmad Khan because he had seen him in an objectionable position with his wife. According to the prosecution, Ahmad Khan, was attacked while he was in his paddy field. Trial Court did not accept the evidence of the prosecution witnesses. It, therefore, acquitted Anwar and Zulfu but accepted a part of Nadir's statement and took it as his confession of guilt, thus convicted him. Taking these circumstances into consideration coupled with the fact that Nadir has been in custody for nearly two years I do not consider it proper to send this case back for proceeding afresh because the impugned order was without jurisdiction. The circumstances appearing in the evidence of this I case support the plea of Nadir who has claimed to have acted on grave and sudden provocation. Under these circumstances, he would at the most may be liable for conviction under section 335, P. P. C. for which the maximum sentence is 2 years and the offence is also compoundable. It is noteworthy that Nadir has already remained detained in this case for nearly two years and now the parties have also filed' a written compromise. Even in the case of Nadir, the impugned order would be without jurisdiction because from a lesser offence, his conviction in revision is altered to a bigger offence. The impugned order as such would be inoperative against Nadir as well. The conviction and sentences of Anwar and Zulfu are set aside. Their bail bonds shall be discharged. 1n the case of Nadir, on his own admission and from the circumstances appearing against him in the prosecution case, his conviction under section 335, P. P. C. would have been appropriate. Since the parties t have put in a written compromise which under the circumstances of this case is accepted; as such Nadir is also acquitted. He is also discharged of his bail bonds. M Y. H Appeal, accepted.