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Criminal Appeal No. 4‑P of 1968,' decided on 1st November 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 30th September 1966, in Criminal Reference No. 181 of 1966).

Ss. 408 & 439 (6) Appeal to Sessions Court against Order of Magistrate‑Pending appeal District Magistrate referring case to High Court for enhancement of sentence and High Court accepting recommendation of District Magistrate enhancing sentence‑Contention that enhance ment of sentence pending appeal of convict before Sessions Court amounted to denial of relief to convict by way of appeal‑Not correct.

Under subsection (6) of section 439 of the Criminal Procedure Code when an accused person receives a notice from the High Court to show cause against the enhancement of his sentence, he is also entitled to show cause against his conviction, thus inviting the reappraisal of the whole case by the High Court on merits. When the sentence is enhanced, the conviction is evidently maintained and the appeal if preferred in the lower appellate Court automatically loses its effect, as the forum for the relief that the convict seeks by way of an appeal to the appellate Court is shifted to the High Court which possesses all the powers of an appellate Court as contained in section 423 of the same Code while exercising its revisional jurisdiction under section 439 of the Code. In such circumstances there is no question of any denial of a legal relief to the convict‑appellant.

S. M. Abasi, Advocate Supreme Court instructed by G. S. Gideon, Attorney for Appellant.

Fakr‑i‑Alam, Additional Advocate‑General West Pakistan Peshawar (M. Yunis Shah, Advocate Supreme Court‑absent) instructed by S. Safdar Hussaln, Attorney for Ijaz Ali, Attorney on record for the State.

Date of hearing : 1st November 1968.

The appellant, Shamsher and his brother Khan Sher were tried under section 307/34, P. P. C. for having in furtherance of their common intention made a murderous assault on their cousin, Khan Haider, P. W. by firing at him. The shot that was fired by the appellant had missed Khan Haider, but accidentally hit P. W., Haya Khan, who was found to have received a few pellet injuries on his right forearm. Khan Sher, the co‑accused, gave a blow with a spade to Khan Haider causing a bruise 1' x 1 on the right parietal area. The occurrence had taken place at 12‑00 noon on the 12th November 1965, and was reported an hour later at Police Station Tehkal.

The trial Magistrate convicted both Shamsher and Khan Sher on the aforesaid charge and sentenced each of them to imprisonment till the rising of the Court and a fine of Rs. 100, or in default 6 months' R. I.

The convicts preferred an appeal to the Sessions Court. But while it was still pending, the District Magistrate made a reference to the High Court, Peshawar Bench, for enhancement of the sentences awarded to accused as he considered them to be wholly inadequate.

A learned Single Judge of the High Court partially accepted the recommendation of the District Magistrate. The sentence of imprisonment passed on the appellant was enhanced to 3 years' R. I. and his sentence of fine was maintained. The conviction of Khan Sher was altered to section 323, P. P. C. without any interference with the sentence awarded to him by the trial Court as it was held that each accused was liable for his own individual act in this occurrence, which was the result of a sudden quarrel between the parties over the demolition of a common pulla (boundry piller) which separated their fields. It appears from the proceedings of the appellate Court (Sessions Judge, Peshawar) that the appeal filed by the appellant and his brother remained pending owing to the reference in the High Court made by the District Magistrate. When the High Court finally disposed of the reference in the terms as mentioned above, the appeal was not pursued as it had become infructuous. Khan Sher was apparently contented with the result of that case but Shamsher moved this Court for leave to appeal which was granted to consider the question whether the enhancement of the appellant's sentence by the High Court while his appeal to the Sessions Court was still pending did not amount to a denial of a relief to which he was legally entitled.

Under subsection (6) of section 439 of the Criminal Procedure Code when an accused person receives a notice from the High Court to show cause against the enhancement of his sentence, he is also entitled to show cause against his conviction, thus inviting the reappraisal of the whole case by the High Court on merits. When the sentence is enhanced, the conviction is evidently maintained and the appeal if preferred in the lower appellate Court,, automatically loses its effect, as the forum for the relief that the convict seeks by way of an appeal to the appellate Court is shifted to the High Court which possesses all the powers of an appellate Court as contained in section 423 of the same Code while exercising its revisional jurisdiction under section 439 of the Code. In such circumstances there is no question of any denial of a legal relief to the convict‑appellant.

The learned counsel for the appellant has addressed us on the merits of the case and after going through the record and examining the evidence we have reached the conclusion that the Courts below in convicting the appellant have misjudged the evidence and the circumstances of the occurrence.

The firearm injuries to Haya Khan, P. W., on his right forearm indicate their accidental nature, as they were not caused by a deliberate aim and this was the prosecution's own case. If the shot had been intentionally fired by the appellant at Khan Haider with his shotgun from a close range, as alleged, there was hardly any chance of his missing the target. The appellant had taken the plea that a grappling had ensued between him and Khan Haider over the banna dispute in the course of which the revolver which he was carrying went off. Haya Khan in the course of his cross‑examination conceded this plea by saying "when I reached the spot I saw that Khan Haider was grappling with the accused. When they were grappling the gun went off and I was hit. I do not know how the quarrel started". It seems to us that the quarrel between the parties started when the appellant and his brother, Khan Sher, protested to Khan Haider against his action of damaging the common pulla. A fight then ensued in which Khan Haider got a bruise by a blow given by Khan Sher with a spade. The blame for the origin of the fight, therefore, lies on Khan Haider. The firearm injuries to Haya Khan on his forearm, who was a non‑participator in this quarrel were obviously accidental. We are inclined to accept the plea of the appellant that the gun in his hand went off accidentally during the course of his grappling with Khan Haider and he cannot be burdened with the intention of deliberately firing at Haya Khan or Khan Haider.

In these circumstances the conviction of the appellant under section 307, P. P. C. is wholly untenable. We accept this appeal and set aside the conviction and sentence of the appellant and direct his release, if not wanted in any other connection.

Appeal accepted.

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