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Criminal Appeal No. 704 of 1965, decided on 17th January 1968.

, Ss. 423 & 439 Stagy Appellate and revisional jurisdictions of High Court‑Not open to High Court, in appeal from conviction, to alter conviction under S. 363, P. P. C. (punishable with imprisonment) to one under S. 364‑A, P. P. C. (punishable with death or transportation for life)‑High Court can neither, in suo motu revisional jurisdiction, enhance sentence of imprisonment to one of death or transportation for life‑Penal code (XLV of 1860), Ss. 363 & 364‑A.

Shera v. Crown P L D 1954 F C 141 rel.

, Ss. 363 & 364‑A‑Kidnapping Sentence‑Accused convicted under S. 363 but on appeal filed by him found to be guilty of graver offence under S. 364‑A‑Iligh Court, however, (in appellate or revisional jurisdiction) not in a position to alter conviction or enhance sentence‑Conduct of accused (kidnapper) found to be reprehensible‑Sentence of 4 years' R. I., in circumstances, enhanced to 7 years' R. 1.

, S. 439‑Revision against acquittal‑High Court would not invariably order retrial except on technical grounds.

‑Appeal against acquittal ‑Courts below erring in view of law applicable to facts found and accused found guilty of graver offences "failing to get. their due"‑Matter, held, deserves attention of District Magistrates to bring such cases to notice of appropriate authorities fording appeals against such like acquittals.

Appellant in person in police Custody. .

Kh. Saeed‑ul‑Hassan for A.‑G. for the State.

Ghulam Sarwar (40) and Ghulam Rasul (50), were put upon their trial under section 364‑A read with section 34, P. P. C. As a result of the trial by the Sessions Judge, Multan, the appellants were acquitted of the charge under section 364‑A/34, P. P. C They were, however, convicted of an offence under section 363/34, p. P. C. and were sentenced to four years' R: 1. each and a fine of Rs. 300 each or in default thereof to suffer further R. I. for a period of six months' each. Ghulam Rasul and Ghulam Sarwar have preferred Criminal Appeals Nos. 704 of 1965 and 60 of 1966 respectively, through jail. When the appeals came up for hearing for the first time on 8th February 1967, on the face of evidence on record I suo motu issued notice to Ghulam Sarwar (vide Criminal Revision No. 296 of 1967) and Ghulam Rasul (vide Criminal Revision No. 418 of 1967), to show cause why they should not be convicted under section 364‑A/34, P. P. C. and why their sentence be not enhanced. This judgment will dispose of both the appeals and the revisions together.

2. The circumstances which led to this trial are these. On 7th June 1964 at 2‑30 p.m. Mst. Rukhsana aged 3/4 years was kidnapped by the appellants while she was playing in front of her house in Street No. 3, Mohallah Qadeerabad, Multan. The cries of her brother, Iqbal attracted Ghulam Mustafa, Noor Ahmad, Ghulam Muhammad and Niaz Muhammad P. Ws. to the spot who noticed that Ghulam Sarwar and Ghulam Rasul appellants were running. They chased them and apprehended them in the graveyard of Khanqah Jalal Baqri, Qadeerabad. They recovered Mst. Rukhsana from the possession of Ghulam Sarwar who was carrying the child wrapped in a chaddar. On being questioned by Ghulam Mustafa P. W. Ghulam Sarwar appellant confessed that he was carrying away Mst. .Rukhsana in order to sell her. Both the appellants asked for forgiveness. Thereafter the appellants were taken to Police Post Cheylak within the jurisdic tion of Police Station Purani Kotwali, Multan, where Ghulam Muhammad P. W. father of Mst. Rukhsana made his statement Exh. P. A. which was recorded by Ghulam Rasul P. W. Head Constable. The Head Constable put the appellants under arrest and also took into possession chaddar P. 1, with which the child was covered.

3. The prosecution case mainly rests on the evidence of Ghulam Muhammad (P. W. 2), Ghulam Mustafa (P. W. 4), Niaz Muhammad (P. W. 5) and Noor Ahmad (P. W. 7) who actually saw the kidnappers running away with Mst. Rukhsana and recovered her from the possession of Ghulam Sarwar appellant: Doctor Mushtaq Ahmad (P. W. 3) Radiologist and Lady Doctor Feroze Sultana (P. W. 6) stated that Mst. Rukhsana was 3/4 years old.

4. In obedience to the notice the appellants appeared before me in police custody. They requested that mercy be shown to them as they had been falsely implicated in this case by the police.

5. I have carefully considered the evidence on the file. It is in the evidence of Noor Ahmad P. W. that both the appellants pleaded to be pardoned. It is also in the evidence of Ghulam Mustafa P. W. that Ghulam Sarwar appellant confessed his guilt before him and admitted that he was carrying away Mst, Rukhsana in order to sell her. Their evidence is substantially corroborated by the statements of Ghulam Muhammad and Niaz Muhammad P. Ws. There is no reason to disbelieve either of them. The medical expert bad described that Mst. Rukhsana was 3/4 years old. From the evidence detailed above, it is obvious that the appellants kidnapped Mst. Rukhsana in order to sell her and there can be no doubt that they could be convicted of as offence under section 364‑A/34, P. P. C.

6. The questions that call for consideration are:‑

(i) whether this Court can alter a finding of the learned Sessions Judge and find the appellants guilty under section 361‑A, P. P. C., and can enhance the sentence; and

(ii) whether this Court without alteration of a finding ,can enhance the sentence in exercise of its revisional powers.

7. Learned counsel appearing for the State has brought to my notice the judgment of their Lordships of the Federal Court in Shera v. Crown (P L D 1954 F C 141). After going through the same 1 am clear in my mind that it is not open to this Court in an appeal from conviction under section 363, P. P. C. to alter the conviction of the appellants to one under section 364‑A, P. P. C. with which they had been charged, and, in exercise of its revisional jurisdic tion, after having previously given notice for enhancement of the sentence, to enhance the sentence of imprisonment to one of, death or transportation for life. It follows, therefore, that if I was to alter the finding against the appellant that they are not guilty of an offence under section 363, P. P. C. and that they are guilty of an offence under section 364‑A read with section 34, P. P. C., I shall not be in a position to pass appropriate sentence according to law, as section 364‑A, P. P. C. provides only for a sentence of death or transportation for life. This means that I cannot alter the finding in the aforesaid manner.

8. It also came to my mind to annul the conviction and se aside the sentences of the appellants and to remand the case for retrial. This, however, is not desirable as the view of the Court consistently has been that the order of the retrial on a revision against acquittal should invariably not to be made unless it is made on technical grounds, as other, vise such an order would tantamount to a direction to the lower Court to convict the accused. With this legal view on the subject I am constrained not, to order a retrial in this case.

9. The answer to the second point is also finding mention in the judgment, referred to above, where Abdul Rashid, C. J. (as he then was), observed :‑

"Section 439, Cr. P. Code, authorizes the High Court to enhance a sentence. This is, however, subject to the, qualifica tion that the High Court cannot revert a finding of acquittal into one of conviction."

From this it is obvious that where a finding of acquittal has not been reversed into one of conviction the sentence can be enhanced in revision.

10. As observed earlier both the appellants are guilty, of graver offence, but they cannot get their due in view of the legal implication pointed out above. At the same time It cannot be lost sight of that the conduct of the kidnappers was reprehensible and the circumstances of this case do warrant the maximum sentence provided under section 363, P. P. C.

11. The result is that while maintaining the conviction of the appellants under section 363/34, P. P. C. I enhance their sentence from four years' R. I. to seven years' R. I. each. The sentences of fine is also maintained.

12. Before concluding I would like to say that a number of cases do come to the notice of this Court from time to time in which such a position arises and In which there is no appeal from the Local Government. The matter deserves attention of the District Magistrates to bring such cases to the notice of the appropriate authority for filing appeals against such like acquittals, so that the embarrassing position of finding that persons guilty of graver offences fail to get their due, not because the Courts below took a wrong view of facts, but because they erred in the view of law applicable to the facts found sic. A copy of this judgment may be sent to the Provincial Government for circulation.

Sentence enhanced.

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