P L D 1952 Lahore 11 (PLP)

SHABIR AHMAD, J.‑As a result of investigation consequent on First Information Report No. 90 of 1949 made at Police Station Bhera on the 4th of September 1949 at about 8 a.m." the police challaned Mirza and Salihon along with, nine others persons to and their trial before the Court of Session at Sargodha under sections 148 and 302/149 of the Pakistan Penal Code. In the charge framed by the Magistrate, it was stated that the accused persons had murdered Sultan and caused in juries to Ramzan, but the fact whether the injuries caused to Ramzan were simple or grievous in character was not men tioned. When the matter came up before Mr. Ghulam Rubbani, Sessions Judge, Shahpur district at Sargodha, he amended the charge framed by the Committing Magistrate by adding to the charge an offence under section 323 of the Pakistan Penal Code for the injuries caused to Ramzan. The eleven persons were tried with the result that, while the other nine were acquitted, Mirza and Salihon were convicted under section 304 Part II with respect to the death of Sultan, and sentenced to five years' rigorous imprisonment each, and for causing injuries to Ramzan each was sentenced under section 323 Pakistan Penal Code to one year's rigorous imprisonment, the sentences being ordered to run concurrently. Mirza and Salihon have presented a joint appeal against their convictions and sentences (Criminal Appeal No. 206 of 1951) and Mst. Nur Bhari, sister‑in‑law of Sultan, has presented a revision petition (Criminal Revision No: 217 of 1951) in which she has prayed that the conviction of Mirza and Salihon be altered to one under section 302 of the Pakistan Penal. Code, and that, at any rate, the sentences imposed upon them be suitably enhanced. The revision petition came up for preliminary hearing before a learned Single judge of this Court, who issued notice to Mirza and Salihon to show cause why their convictions be not altered and sentences en hanced. This order will dispose of the appeal by the convicted persons and the revision petition presented by Mst. Nur Bhari. The prosecution case was that the two appellants along with the nine acquitted persons had broken into the house of Sultan and Ramzan on the night between 3rd and 4th of Sep tember 1949 and picking up Sultan and Ramzan from their charpoys on the roof of their house four of them threw them in the courtyard of their house from where they and their com panions picked them up and took them to the house of Mirza appellant. The throwing down of Sultan and Ramzan caused injuries to them a as a result of the injuries received by him Sultan breathed his last not very long after the incident and Ramzan received a number of hurts out of which one was grievous in character. The two injured persons were carried to the house of Mirza appellant which is at a distance of about 70 ft. from the house of Sultan and were there locked inside a kotha from which they were recovered by a Sub‑Inspector of Police during the investigation, the lock being opened with a key given by Mirza appellant. Sultan deceased who was a Powli and resided m village Dhal of the Sargodha District had a wife named Mst. Bakhtan who had been abducted some months before the murder of Sultan. With regard to the abduction of Mss: Bakhtan, Sultan deceased had lodged a complaint under section 498 Pakistan Penal Code against Mirza appellant, Baqri a son of Salihon appellant and three other persons. The com plaint was pending in the Court of Major Muhammad Ashraf, Magistrate Second Class, Sargodha, and on the 22nd of August 1949 bailable warrants were issued by him against Mirza appellant and one of his co‑accused in that case because though the‑other persons complained against had been served these two had not been. On the 22nd August 1949 the next date of hearing in the 498 P. P. C. case was fixed as 5th September 1949 on which date it was expected that Mirza appellant and the other person against both of whom warrants had been issued will appear in Court. The prosecution theory was that it was with the object of preventing Sultan from proceeding with the criminal case against him that Mirza appellant, who happens to be a landlord, committed the offence with the help of the other accused persons just a day and a half before the date on which he had to appear in the Court of Major Muhammad Ashraf to answer the charge under section 498 Pakistan Penal Code. In support of their case the prosecution produced a number of witnesses out of whom Mst. Nur Bhari (P. W. 3), Mst. Sakina (P. W. 5) and Muhammad, son of Salina (P. W. 7) gave evidence which connected the appellants directly with the crime. Ramzan, the husband of Mst. Nur Bhari was stated to have died a natural death before the matter came to Court and. for that reason he did not appear as a witness either in the Court of the Committing Magistrate or the Court of Session. Mst. Nur Bhari gave all the details of the incident which had led to her husband Ramzan and her brother‑in‑law Sultan receiving the injuries which in the case of Sultan proved fatal. She deposed that on the night of the occurrence she, her hus band Ramzan, her daughter Mst. Sakina (P. W. 5) and her brother‑in‑law Sultan were sleeping on the roof of their house when she heard a gun report. Soon after Mirza appellant who was armed with a gun shouted "let Sultan be murdered" and she saw four men, namely, Mirza and Salihon appellants, Hussain one of the acquitted persons and another whom she did not know, all of whom she had seen scaling the outer wall of the house, come to the roof of the house. Out of them Hussain had a spear while Salihon appellant and the man who was not known to her had sticks. She proceeded to say that Mirza and Hussain lifted Sultan and threw him down from the roof, Mirza catching him by the head and Hussain by the feet and after that Salihon appellant and the intruder whom she did not know lifted her husband Ramzan in the same manner and threw him down. She and her daughter Mst. Sakina raised an alarm which received a response from the neighbours that they were coming to render assistance at which Mirza appellant shot his gun twice in the air. After Sultan and Ramzan had been thrown into the courtyard four or five persons rushed into the compound from outside and they in the company of the four intruders who had gone down from the roof carried Ramzan and Sultan away. The witness added that she followed the assailants in the street and saw that her husband and her brother‑in‑law Sultan were carried into the house of Mirza appellant. She was cross‑examined at very great length but nothing which might induce us to hold that her deposition was not correct was brought on the record. She admitted in cross‑examination, however, that about two months before the incident which led to the death of Sultan he and his brother Ramzan were bound down to keep the peace at the instance of Mirza appellant. It was suggested to her that the report at Police Station Bhera made by Badar Din, a resident of village Dhal, about the present incident had been made after consul ting her but she denied that it was so. Mst. Sakina (P. W. 5), a girl about 13 years of age, corroborated the deposition of her mother in all material details, the only discrepancy between her deposition and that of her mother being that while the mother said that Sultan deceased and Ramzan were lifted from their arms and legs when they were taken away from the courtyard of the house the girl said that her father arid uncle were caught by their arms and dragged away by the intruders. Muhammad, son of Salina (P. W. 7) who is a resident of village Dhal and whose house is adjacent to that of Mirza appellant who is his caste‑fellow, stated that on the night of the occurrence he had seen Mirza appellant and Hussain one of the acquitted men dragging Sultan to the house of Mirza appellant and that Ramzan was being taken there in the same manner by Salihon appellant and another person whom he did not know. The witness added that Ramzan and Sultan were taken into the eastern kotha of Mirza appellant and that there were in all eight or nine persons who were dragging Ramzan and Sultan. With respect to the weapons carried by the culprits the witness stated that Mirza appellant carried a gun, Hussain a spear and all the rest carried dangs. The cross‑examination of this witness brought out the fact that two of his relatives were bound down to keep the peace about two months prior to the present occurrence at the instance of Mirza appellant. It was also brought out that the witness knew Salihon appel lant before the occurrence he was deposing about and that he had not named Salihon as one of the culprits in the statement he made to the police under section 161 of the Code of Criminal Procedure during the course of investigation. When questioned in the Court of the Committing Magis trate to explain the case against him, Mirza appellant stated that Ramzan and his brother Sultan went armed with dangs to his house to attack and murder him and that Sultan deceased had fallen from the roof of (appellant's) house and received injuries which later on killed him, while Ramzan had been beaten by him and his father in self‑defence. In the Court of Session, Mirza appellant admitted the statement made by him in the Court of the Committing Magistrate and added that he had gone to report to the Sub‑Inspector who had given false evidence against him. The statement of Mirza appellant was taken on the 22nd February 1951 by the Sessions' judge and the next day hp put in a written statement in which he reitera ted his plea of self‑defence taken in the Court of the Commit ting Magistrate and also his plea of the accidental fall of Sultan deceased from the roof of the house which Sultan and Ramzan had broken into. The written statement added that Mirza appellant had gone to the Police Station Bhera to report against Sutlan and Ramzan but the Sub‑Inspector without recording the report sent him to village Chhawa where the Assistant Sub‑Inspector was stated to be. The appellant claimed to have accompanied the Assistant Sub‑Inspector to village Dhal where ho told the two police officers how Ramzan and Sultan deceased had received injuries. Salihon appellant both in the Court of the Committing Magistrate and in that of the Sessions judge denied all knowledge of the incident No defence evidence was produced by either appellant. The learned counsel for the appellants urged that the Trial Court had erred in not accepting the plea of Mirza appellant because according to the learned counsel though there was no direct evidence in support of it the circumstances showed that the plea of Mirza appellant was correct. Learned counsel added that the evidence led by the prosecution was not of such character as to entitle it to be preferred to the statement of Mirza appellant which may as well be true. As already mentioned, the prosecution case is supported mainly by three witnesses that is P. W 3, P. W. 5 and P. W 7 I have not been impressed with the arguments raised on behalf of the appellants that as P. W. 3 and P. W. 5 are related to the deceased, their depositions were not entitled to weight because if the incident took place in the house of Sultan deceased. P. W. 3 and P. W. 5. are most natural witnesses of the incident. No doubt, two relatives of P. W. 7 were bound down under section 107 of the Code of Criminal Procedure to keep the peace at the instance of Mirza appellant but that fact, in my view, was not sufficient to induce the witness who had abso lutely no connection with the deceased, to give false evidence against Mirza appellant who is his caste‑fellow and appears to be an influential person. When examined by Dr. Abdul Haq, District Health Officer Sargodha (P. W. 1) on the 7th of September 1949. Mizra appellant was found to have a superficial partly healed up contused wound measuring " x " x 1/8" on the dorsum of his right foot and a nearly healed superficial abrasion " x 1/3", about an inch below the first injury. The learned counsel for the appellants urged that the presence of the two injuries on the person of Mirza appellant was a strong piece of evidence in favour of the defence case, but I find no force in this contention. If two assailants, armed as they have been stated by Mirza appellant to have been, had gone to attack Mirza it is almost impossible that they would not have caused any injuries to him or any other inmate of his house. The two trivial injuries found on the foot of Mirza appellant are clearly not the result of direct blows and might well have resulted from Mirza appellant rubbing his foot against any hard substance. The learned counsel for the appellants urged that the fact that Muhammad (P. W., 7) did not name Salihon appellant during the investigation by the police proved that Salihon ap pellant was innocent. The contention is without force as it overlooks that P. W. 7 saw the incident he deposes about from his own house, i.e., from some distance and at a time when the visibility was not clear. Moreover, it is by no means improbable that Salihon appellant had after the incident at the house of Sultan deceased gone away or had lagged behind. Mst. Nur Bhari (P. W. 3) and Mst. Sakina (P. W. 5) are definite that Salihon appellant was one of the four persons who climbed on to their roof and threw Sultan and Ramzan down and the fact that Salihon was not seen by Muhammad (P. W. 7) near the house of Mirza appellant is not tsufficient to make the case against Salihon doubtful. A circumstance brought out by the prosecution evidence, in my view, proves conclusively that the prosecution case was correct. When Sultan Ahmad, Sub‑Inspector of Police (P. W. 24) reached the spot soon after the report, he saw that the ladder (Exhibit P. 1) was resting against the wall of the house of Sultan deceased on the street side. In this respect the Sub‑Inspector is corroborated by Muhammad Hayat (P. W. 19), who is one of the five lambardars of village Dhal. The learned counsel for the appellants pointed out that P. W. 19 had been proceeded against by Mirza appellant for keeping the peace and he urged that for that reason the witness should not be relied upon. P. W. 19 stated that though Mirza did apply against him but no action was taken and I do not think that the mere fact that Mirza appellant had made an application against the witness would be sufficient to induce the witness to give false evidence against him. But even if the statement of Muhammad Hayat (P. W. 19) be overlooked there is nothing on the record to even suggest that when Raja Sultan Ahmad Sub‑Inspector (P. W. 24) stated that he had recovered the ladder (Exhibit P. 1) resting against the street side of a wall of the house of Sultan deceased he had stated anything but the truth. The finding of the ladder at the place mentioned is such a strong corroboration of the evidence of the three eye‑witnesses produced by the prosecution that I have no hesitation in holding that the incident which led to Sultan deceased receiving fatal injuries and Ramzan being injured had occurred at the house of the injured persons. The learned counsel for the appellants next contended that the First Information Report made by Badar Din at the Police Station Bhera was different from the evidence of Mst. Nur Bhari (P. W. 3) and Mst. Sakina (P. W. 5) who should on that score be held to be unreliable. It is no doubt true that the First Information Report differs slightly from the statements made by the two eye‑witnesses in Court because in the First Information Report while it was mentioned that Sultan deceased was thrown down from the roof, about Ramzan it was stated that he was brought down from the roof, but as Badar Din who made the report did not appear as a witness because of his having died before the matter came to Court, the difference pointed out cannot be used against the pro secution. It is not known whether Badar Din who made the report was an eye‑witness or had received information from someone and if so from whom. A First Information Report is a document which can be used to contradict or corroborate the maker thereof and it would neither be fair nor legal to contradict other persons by the contents of that document. The Court decides a case on the evidence given before it corroborated or contradicted by any other statement which can legally be used for that purpose and as in my view the statements made by P. W. 3 and P. W. 5 corroborated by that of P. W. 7 are the correct version of the incident, I attach no importance to any discrepancy that might exist between the First Information Report and the evidence of witnesses. It was further contended that Mirza appellant went to the police station and reported that Sultan and Ramzan had broken into his house and had been confined by him in one of the rooms of his house, but Sultan Ahmad Sub‑Inspector of Police (P. W. 24) did not record his report and told him to contact the Assistant Sub‑Inspector of Police at village Chhawa. Sultan Ahmad, Sub‑Inspector, was questioned about the matter and denied the suggestion that Mirza appellant saw him at the police station. The conduct attributed to P. W. 24 is so unnatural that I cannot accept the unsupported statement of Mirza appellant in proof of it If the report of the kind mentioned by Mirza appellant had been made before report was made by Badar Din, there was no reason for not recording it and if Mirza appellant went to the police station after Badar Din had reported against him I cannot think of any reason why Mirza was not arrested. Mirza appellant mentioned in his written statement that he took Assistant Sub -Inspector of Police Station Bhera to the scene of the occurrence and there related the whole incident to him and to Sultan Ahmad Sub‑Inspector. The prosecution produced Baz Khan Assistant Sub‑Inspector as P. W. 4 and without examining him tendered him for cross‑examination, but the opportunity so offered to the defence to prove that the statement of Mirza appellant in this respect was correct was not availed of as the witness was not asked a single question by the defence. After taking into consideration the material on the record and giving due weight to the arguments addressed by the learned counsel for the parties, I have no hesitation in holding that the case pleaded by Mirza appellant is wrong and that the incident which led to Sultan and Ramzan receiving injuries which resulted in the death of the former happened in the manner deposed to by Mst. Nut Bhari (P. W. 3) and Mst. Sakina (P. W. 5). It is further proved beyond all reasonable doubt that the two appellants along with two others climbed to the roof where Sultan and Ramzan were sleeping and while Mirza appellant and another threw down Sultan, Salihon appellant and another threw down Ramzan. It is also proved from the evidence produced by the prosecution that at least eight persons set out on the illegal nocturnal venture which resulted in the death of Sultan and receipt of injuries by Ramzan. Having decided the questions of fact, I now proceed to consider what offences the appellants had been proved guilty of. The trial judge convicted the appellants under section 334 Part II with regard to the death of Sultan. The conviction of the appellants for the injuries caused to Ramzan was recorded under section 323 of the Pakistan Penal Code because, as mentioned already, the learned Sessions judge added a charge under that section to the charge framed by the Com mitting Magistrate. At the time when the charge was amended there was no medical evidence on the record that Ramzan had received any injuries and if so, whether they were grievous or simple in character. To prove the injuries suffered by Ramzan the prosecution, in the Court of Session, produced Dr. Ijaz Ahmad Siddiqi, Medical Officer, Bhera, who had examined Ramzan on the 4th of September, 1949, and had found seven injuries, one of which was a punctured wound, on his person. One of these seven injuries had resulted in the fracture of the base of the skull and was grievous in character. It does not appear to have occurred to the learned Sessions judge that section 227 of the Code of Criminal Procedure authorized him to amend the charge at any stage. The present was a fit case in which the charge should have been amended from section 323 Pakistan Penal Code to section 325 Pakistan Penal Code, and had the conviction of the appellants been only under section 323 of the P. P. C., it would have been neces sary to amend the charge and possibly remand the case. The learned counsel for the appellants urged that even if the facts alleged by the prosecution were held to be proved, only an offence under section 325 of the Pakistan Penal Code was committed by Mirza appellant, with respect to the injuries which resulted in the death of Sultan, and that as Salihon appellant took no part in throwing down Sultan from the roof, Salihon could not be convicted even under section 325 Pakistan Penal Code. Mr. Iftikhar‑ul‑Haq Khan, Advocate, who appeared for Mst. Nur Bhari in the petition for enhancement of sentence, urged, however, that the case fell under section 302 of the Pakistan Penal Code and that the conviction under section 304 Part II must, therefore, be altered to one under section 302 Pakistan Penal Code, or, at any rate, the maximum sentence under section 304 Part II or 325 be imposed. The learned counsel for the Crown, who was given an opportunity to argue the legal question, in spite of the fact that no petition had been put in by Government either for alteration of the conviction or enhancement of the sentence, urged that the death of Sultan amounted to an offence under section 302 of the Pakistan Penal Code, and as eight or nine persons had taken part in the incident, which resulted in the death of Sultan, the appellants could be convicted under section 302 by the application of section 149 of the Pakistan Penal Code. I will first of all deal with the argument of the learned counsel for the Crown. No doubt, as at least eight persons took part in the incident there was an unlawful assembly, but before Salihon appellant could be made liable for the act done by Mirza appellant by application of section 149 of Pakistan Penal Code, it must be proved that the act which resulted in the death of Sultan was either committed in the prosecution of the common object of the unlawful assembly or was such as the members of that assembly knew to be likely to be com mitted in the prosecution of that object. The Trial Court has held that the intention of the intruders was not to cause death and with that finding I can see no reason to differ because if the intention were to cause the death of Sultan, the deadly weapons carried by the intruders would have been used to attain that object. It appears from the circumstances that the object was to carry away Sultan and Ramzan by force and to keep them in confinement so that Sultan will not be able to appear in Court on the 5th of September, 1949, and his absence will entail the dismissal of the complaint brought by him against Mirza appellant and others. The common object of the unlawful assembly not being to cause the death of Sultan, I proceed to consider whether the death of Sultan was a result which could be foreseen by the members of the unlawful assembly. If any of the weapons carried by the intruders had been used and the death of Sultan had resulted because of that, it would have been clear that the second part of section 149 of the Pakistan Penal Code had application, but as death resulted from the victim being thrown from the roof into the courtyard, which was a very unusual act, it would be unsafe, in the absence of clear evidence, to hold that the intruders other than those who threw Sultan down into the courtyard, knew that their companions would adopt that dangerous method o f bringing Sultan to the courtyard from the roof. I am of the view, therefore, that section 149 of the Pakistan Penal Code could not apply with respect to the death of Sultan and Salihon appellant could not be made liable for the death of Sultan by the application of that section. With regard to Mirza appellant also, there is no reason to infer that his intention was anything more than to abduct Sultan and in his case also I do not think section 302 of the P. P. C. can apply. The contention of the learned counsel for Mst. Bhag Bhari with regard to the applicability of section 302 of the Pakistan Penal Code having also been disposed of, I proceed to consider the argument of the learned counsel for the appellants that the offence with regard to the death of Sultan fell under section 325 of the Pakistan Penal Code and under none of the more penal sections of that Code. According to the learned counsel, the intruders had neither the intention to cause death nor had they the knowledge that death would ensue. It is true that the evidence on the record and the circumstances of the case do not justify an inference that there was intention to cause death, but the same cannot be said about the intruders having the knowledge that death was likely to ensue from their act of throwing Sultan from the roof of the house. At an early stage of the hearing of the appeal it was pointed out to the learned counsel for the appellants that section 460 of the Pakistan Penal Code may have application to the case and he was asked to keep that section in view when dealing with the question of the offence committed by his clients. He stated that section 460 of the Pakistan Penal Code could nor apply, but gave no reasons for that assertion. He contended, however, that Salihun, at any rate, could not by any means be held responsible for the death of Sultan as he had done nothing to directly connect him with the fatal result. It was further contended that the appellants not having been charged under section 460 of the Pakistan Penal Code the conviction could not be altered in appeal to one under that section. Section 460 of the Pakistan Penal Code reads as follows : " If, at the time of the committing of lurking house trespass by night or house‑breaking by night, any person guilty of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house‑trespass by night or house‑breaking by night, shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." It is established beyond all reasonable doubt by the evidence already discussed that the intruders entered into the house by scaling the outer wall and thereafter used the ladder meant by the inmates of the house to go to the roof and reached victims were sleeping. This act of theirs falls within the second of the six clauses of section 445 of the Pakistan Penal Code which section gives a definition of "house breaking". Gaining entry into a house with the intention of committing an offence by scaling a wall amounts to house breaking as the entry is by a passage not intended by any one, other than the offender, for human entrance. Moreover, though it was not mentioned by any of the prosecution wit nesses in so many words it is established by the circumstances that after throwing down Sultan and Ramzan from the roof, the intruders quitted through the door in the courtyard of the house. That the door through which the intruders quitted had been fast end before the inmates of the house went to bed is clear from the fact that the intruders considered it necessary to scale the wall to gain entry into the house. The act of quitting by opening the door will make the sixth clause of section 445, Pakistan Penal Code, applicable and make the intruders guilty of "house‑breaking". The house‑breaking having been committed after sunset and before sunrise amounted to "house‑breaking by night" within section 446 of the Pakistan Penal Code and the question for considera tion is whether or not the death of Sultan was caused voluntarily because if it were proved that it was, section 460 of the Pakistan Penal Code will clearly apply. Section 39 of the Pakistan Penal Code defines "volunt arily" as follows;‑ " A person is said to cause an effect `voluntarily', when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it." I have already held that the intruders did not intend to cause the death of Sultan and in this view of the matter the first part of section 39 Pakistan Penal Code will have no application, but the same cannot be said of the second part of the section. None of the prosecution witnesses mentioned the exact height of the roof from which Sultan was thrown down into the courtyard, but the fact that one of the victims lost his life as a consequence and the other broke the base of his skull is enough to establish that the height was such as to make throwing down people from it an act fraught with great danager. The act being very dangerous it can be safely inferred that the persons who thren down Sultan, knew and had reason to believe that death was the likely result. It is clear, therefore, that the death of Sultan was caused "voluntarily" and Mirza appellant was guilty under section 460 of the Pakistan Penal Code. I pass on to the consideration of the argument of the learned counsel for the appellants that Salihon appellant could not be made vicariously liable for the act of Mirza and, therefore, could not be held guilty under section 460 of the Pakistan Penal Code even if Mirza was guilty of that offence. It was urged that as it was neither the common intention nor the common object of Salihon and his companions to cause the death of Sultan, Salihon could not be liable for the fatal result, but this contention which overlooks the provisions of section 460 Pakistan Penal Code has no force. If the death of Sultan had been the result of an act done in furtherance of the common intention‑ of Salihon and his companions, he and his companions would have been guilty under section 302/34 of the Pakistan Penal Code and liable to be sentenced to death even if any of them had himself not done the act directly responsible for the death of Sultan. And if the death of Sultan had occurred as a result of something done in the prosecution of the common object of the unlawful assembly of which Salihon was a member or the death of Sultan was known to be likely to result in the prosecution of the common object of the unlawful assembly each one of the members: of the unlawful assembly would have been guilty under section 302/149 Pakistan Penal Code and liable to be sentenced to death. But it is not necessary for the application of section 460 Pakistan Penal Code to the case of a person not directly responsible for voluntarily causing death to prove that the ingredients of section 34 or 149 of the Pakistan Penal Code existed. Law looks with great dis-favour on persons who commit house‑breaking by night or lurking house‑trespass night and makes all persons guilty of these offences liable to severe penalty if any of them voluntarily causes death or grievous hurt or attempts to voluntarily cause death or grievous hurt to any one even if their companion responsible for the result abovementioned had done the act without their knowledge and even against their wishes. For the reasons given above, I have no hesitation in arriving at the con clusion that in the eyes of law Salihon appellant was equally guilty with Mirza appellant under section 460 of the Pakistan Penal Code. I might add that the facts established on the record prove an offence under section 459 of the Pakistan Penal Code, which is as penal as section 460 Pakistan Penal Code, against Salihon appellant, because he was directly responsible for causing a grievous injury to Ramzan. But, as the charge framed was for causing simple injuries to Ramzan, I would keep section 459 Pakistan Penal Code out of consideration. The question arises whether or not, not having been charged under section 460 of the Pakistan Penal Code, the appellants can in appeal be convicted of that offence. The powers of the appellate Court to alter a conviction are very wide under section 423 of the Code of Criminal Procedure, but they are subject to the condition that the altered conviction should not be such which could not have been recorded by the Trial Court. As mentioned already, the police in their final report had mentioned an offence under section 452 of the Pakistan Penal Code as one of the offences 'which had been committed, and if the committing Magistrate and the learned Sessions judge had devoted the requisite attention to all the allegations of the prosecution, it would have become clear to them that section 460 Pakistan Penal Code was the appropriate section to frame a charge under. But be that as it may, I am of the opinion that the omission of the Courts below to frame a charge under section 460 Pakistan Penal Code is, on the facts of the present case, no bar to the alteration of the conviction to one under that section. The case, in my opinion, is governed by sections 236 and 237 of the Code of Criminal Procedure which read as follows :‑ "

236. If a single act or series of acts is of such a nature that it is doubtful, which 'of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences." "

237. If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he has committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it." These two sections made the conviction of the appellants under section 460 of the Pakistan Penal Code lawful in spite of that fact that they were not charged under that section but only under section 302 Pakistan Penal Code. Sections 236 and 237 of the Code of Criminal Procedure came up for consider ation before their Lordships of the Privy Council in Begu v. The King Emperor (I L R 6 Lah. 226 P. C.) when it was urged before them that the charge having been under section 302 of the Penal Code, a conviction under section 201 of that Code could not have been recorded, and their Lordships remarked as under :‑ "A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. That is what happened here. The three men who were sentenced to rigorous imprisonment, were convicted of making away with the evidence of the crime by assisting in taking away the body. They were not charged with that formally, but they were tried on evidence which brings the case under section

237. Their Lordships entertain no doubt that the procedure was a proper procedure and one warranted by the Code of Criminal Procedure. There are, however, some other decided cases which it is necessary to consider in this connection. In I L R 4 Lah. 373 and I L R 7 Lah. 561, two Division Benches of this Court have taken the view that where a person is charged under section 302 of Penal Code and not for an offence relating to property, he cannot be convicted of theft by the Appellate Court in the event of the conviction under section 302 of the Pakistan Penal Code being set aside. The same view has been taken by me sitting with my learned brother Jan J. in Criminal Appeal No. 500 of 1950 decided on the 20th of February 1951. The case of the conviction of a person charged under section 302 of the Pakistan Penal Code, for an offence relating to theft of property is, in my view, entirely different from the present case. In the present case the allegation was that Sultan was killed after the persons who caused his death had along with others broken into the house of the victim, and a charge under section 302/149 Pakistan Penal Code was framed. If the conviction were altered to one under section 460 Pakistan Penal Code, the case still remains one relating to the causing of the death of Sultan and cannot be said to be of such a character as to result in taking the accused persons by surprise. For causing the death of Sultan, the appellants and their companions could and should have been charged under section 460 Pakistan Penal Code, either by itself or along with section 302 Pakistan Penal Code, and therefore section 237 of the Code of Criminal Procedure will have application, with the result that though they were not charged with that, offence they could be convicted thereof. The learned counsel for the appellants half‑heartedly urged that another objection to the alteration of the convic tion to one under section 460 of the Pakistan Penal Code was that the appellants had no opportunity to meet that charge and would be prejudiced in their defence. In this respect section 229 of the Code of Criminal Procedure, which has relevancy, may be quoted :‑ "

229. If the new or altered or added charge is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary." If the learned Sessions Judge, exercising his powers under section 227 of the Code of Criminal Procedure, had altered or added to the charge by including section 460 Pakistan Penal Code even at the conclusion of the trial, it would not, in my opinion, have been necessary for him to order a new trial or adjourn the trial to give time to the accused persons to enable them to think of the defence they should put forward, and I do not see how the alteration of the conviction in appeal can lead to any prejudice to the convicted persons. After giving my anxious consideration to the facts of the case, the provisions of law applicable thereto and the conten tions of the learned counsel for the parties, I have arrived at the conclusion that in spite of the fact that they were not charged for an offence under section 460 Pakistan Penal Code, the appellants can be convicted of that offence in appeal. I would, therefore, alter the conviction of the appellants with regard to the death of Sultan from one under section 304 Part II to section 460 of the Pakistan Penal Code. With regard to the grievous injury caused to Ramzan, my view is that it will not be fair to alter the conviction to one under section 325 of the Pakistan Penal Code, which, though clearly applicable, had not been applied by the Courts below, because the possibility of the appellants being prejudiced by the alteration of the conviction for a more serious offence with which they were not chargen is by no means excluded. The only question left is that of sentence. The learned counsel for the appellants urged that even if his clients were convicted under section 460 of the Pakistan Penal Code, the sentence already imposed would suffice, but with that contention I cannot agree. The act of the appellants was very high‑handed, and, in may view, only the maximum sentence prescribed by section 460 of the Pakistan Penal Code would meet the ends of justice. I would, therefore, sentence each of the two appellants to transportation for life under section 460 of the Pakistan Penal Code and would maintain their conviction under section 323 of the Pakistan Penal Code and the sentence imposed therefore by the Trial Court. The sentences shall run concurrently. S. A. RAHMAN J.‑I agree A. H. Conviction altered, sentence enhanced.