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(This case was referred to the Division Bench consisting of S. A. Rahman, C. J. and J. Ortcheson, J. by Abdul Aziz Khan, J, for decision of certain questions arising out of the appeal).
Criminal Appeal No 757 of 1953, decided on 24th January, 1955 (Reference answered on 23rd December, 1954) from the order of Muhammad Lptif Malik, Magistrate 1st Class with enhanced powers under section 30, Cr. P. C. Gujrat, dated the 30th September, 1953.
S. 423 (1) (b)‑--Accused charged and convicted under S. 376/511 P. P. C. Finding may be altered in appeal to one of conviction under S. 376 P. P. C. and sentence enhanced under S. 439 Cr. P. C. Criminal Procedure Code (V of 1898), Ss. 236, 237 (1).
The accused was charged and convicted under section 376/ 511 P. P. C. Held, that conviction under section 376/511 P. P. C. can be altered to one under section 376 P. P C in appeal and sentence enhanced in accordance' with provisions of section 439 Cr. P. C.
The principle embodied in section 237 (1) Cr. P. C. applied to such a case. There is no difference in 1Srinciple between the alteration of a conviction for abetment of an offence into a conviction for the substantive offence and the alteration of a conviction for attempt into one of conviction for the completed offence.
Shera v. The Crown P L D 1954 F G 141 distinguished on the ground that there was no express or implied acquittal of the offence under section 376 P. P. C. in the present case.
Zamir Qasim v. Emperor A I R 1944 All. 137, Lal Chand v. Emperor 14 I C 601, Suraj Bban v. Emperor A I R 1935 Pesh..67, Kauromal v. Emperor 25 Cr. L J 1057, Chunbidya v. King Emperor I L R 57 All. 156 (P C) ref.
Sh. Rafiq Ahmad and Mahmud Ali, for Appellant.
Mazhar Saleem, for Advocate‑General, for Respondent.
Appellant in police custody:
‑Fatal Karim was convicted under section 376/511, P. P. C. by Mr. Muhammad Latif Malik, Magistrate 1st Class with enhanced powers under section 30 of the Code of Criminal Procedure at Gujrat, and sentenced to five years' rigorous imprisonment. Fazal Karim has appealed to this Court against his conviction and sentence.
The prosecution case is that on 9th May, 1953, at about peshiwela, Mst. Haliman (aged five years) went out to ease herself towards the ihata of the appellant who carried her into his bur and raped her. At the trial the principal prosecution witness, Gullu (P. W. 2), her cousin (aged thirteen years), stated that at about moontime he was going from his house to the well and that when lie passed through the compound of the appellant he heard the cries of Mst. Haliman coming from the bur. He, therefore, went into the bur and saw the appellant committing rape on her. He got enraged and ran towards his house where he picked up a kehi in order to attack the appellant. He also informed his uncle Muhammad Shafi (P. W. 3) and his uncle's wife Mst. Rabia (P. W. 1) about the occurrence. Thereupon all the three went towards the bur and saw the appellant emerging from the bur and running towards his khalwara. They followed the appellant to the khalwara, caught hold of him and gave him a shoe beating. Muhammad Shafi (P. W. 3) then went to the Police Station Karianwala and lodged the first information report (Exh. P. A). Malik Muhammad Saleh Sub‑Inspector (P. W. 10), went to the spot: In the course of the investiga tion, he took into possession the shalwar (Exh. P. 1) of Mst. Haliman vide memo. Exh. P. G. and made it into a sealed parcel. He al‑o took into possession the langota (Exh. P. 2) and the tehband (Exh. P. 3) of the appellant vide memo. Exh. P.C. as the same appeared to be stained with semen and then made a sealed parcel of the aforesaid articles. Mst. Haliman was examined by Dr. Fazal Elahi, Assistant Medical Officer, Karianwala, (P. W. 6), on the 9th of May, 1953 at 7 p.m. and he found the following injuries on her person. The relevant portion of his statement may be reproduced:‑
"M The hymen was freshly torn in the posterior part and was red.
(2) Vulva was red and was tender.
(3) The inner surface of the labia was red and tender.
Bloodstains were observed on the inner surface of both the thighs in the upper part and there was‑ discharge also present like semen round the labia".
Two swabs were taken by the doctor, one from inside and one from outside the vagina‑and were sent by him to the Chemical Examiner for report.
According to the report of the Chemical Examiner No. 877 dated 16th May, 1953, the shalwar of Mst. Haliman (Exh. P. 1), the langota '(Exh. P. 2) and the tehband (Exh. P. 3) of the appellant were stained with semen. The Chemical Examiner also found bloodstains on the shalwar of Mst. Haliman (Exh. P. 1) and the tehband (Exh. P. 3) belonging to the accused. According to his report No. 903 dated the 20th of May, 1953, the swabs taken from Mst. Haliman's vagina were stained with semen.
The prosecution case mainly rests on the evidence of Gullu (P. W. 2) who is corroborated by Mst. Rabia (P. W. 1) and Muhammad Shafi (P. W. 3). Gullu. (P. W. 2) actually saw the appellant committing rape on Mst. Haliman in his bur. Mst. Rabia (P. W. 1) and Muhammad Shafi (P. W. 3) accompanied Gullu to the bur on learning about the occurrence from him (Gullu P. W.). They saw the appellant emerging from the bur and running towards the khalwara. The evidence of Mst. Rabia (P. W. 1) and Muhammad Shafi (P. W. 3), therefore, substantially corroborates the statement of Gullu (P. W. 2). The witnesses about the recovery of the shalwar (Exh. P. 1), the langota (Exh. P. 2) and tehband (Exh. P. 3) are Malik Muhammad Saleh '(P. W. 10) and Bashir Ahmad Lambardar (P. W. 5). There is no reason, to disbelieve either 'of them.
Muhammad Yusaf Moharrir Head Constable (P. W. 8) and Foot Constable Nur Alain (P. W. 7) are witnesses regarding the custody and transmission of the sealed parcels to the Chemical Examiner, Lahore, whose reports are on the record and have been referred to above.
This appeal came up for hearing for the first time on 3rd March, 1954. Although the appellant had been challaned under section 376, Pakistan Penal Code, the learned Magistrate for reasons not apparent on the record charged and convicted the appellant under section 376/511, Pakistan Penal Code. In face of the evidence referred to above, I was of the opinion that the conviction under section 376/511, P. P. C. was illegal. In order to set right the illegality, I issued notice to the appellant to appear and show cause why he should not be convicted under section 376, Pakistan Penal Code, and why the sentence be not enhanced.
The appellant appeared, in police custody, with his counsel, Tire learned counsel for the appellant conceded that the evidence on the record, if believed, establishes a case under section 376; Pakistan Penal Code. As already stated, the evidence of Gullu has been corroborated by the medical evidence and Chemical Examiner's reports. It passes my comprehension, therefore, why the learned trial Magistrate proceeded to frame a charge. under section 376/511, Pakistan Penal Code, especially after recording the evidence of Dr. Fazal Elahi ‑(P. W. 6).
After I had issued the notice to the appellant, the judg ment of their Lordships of the Federal Court in Shera v. The Crown (P L D 1954 F C 141) has come to my notice. Prima facie, it applies to cases in which an appellant has been charged and acquitted of the major offence, and convicted of a minor offence. In the present case, however, the appellant was sent up for‑ trial under section 376, P. P. C., but was charged and convicted under section 376/511, P. P. C Strictly speaking, there has been no acquittal of a charge under section 376, P. P. C. in this case. There are, however, certain observations in the aforesaid decision of the Federal Court which by implication appear to rule out the possibility of my altering the conviction from 376/511, P. P. C. to one under section 376, P. P. C. and thus rectifying the flagrant error oz the trial Magistrate.
I can, of course, annul the conviction, set aside the sentence and remand the case for retrial. This, however, is not desirable, as the sentence is not grossly inadequate and as it would cause unnecessary expense to the appellant and delay the disposal of the case which is against the accepted principle, of administration of criminal justice. Moreover, cases of this nature do frequently arise and hitherto the High Court had been rectifying such mistakes, on the authority of Bawa Singh v. The Crown (I L R 1942 Lah. 129).
In my opinion, it is desirable to have an authoritative decision from a larger bench as to ---
(a) whether the present case is really distinguishable from the Federal Court decision in Shera v. The Crown, and if so,
(b) whether the conviction can be altered from section 376/511, P. P. C. to section 376, P. P. C. with or without enhancing the sentence.
For the reasons stated above, I recommend that this case may be placed before my Lord the Chief Justice for necessary orders.
Sh. Rafq Ahmad, for Appellant.
A. R. Changes, Advocate‑General, F. M. Anwari, for Respondent.
‑The facts leading up to this reference are that one Fazal Karim, aged 39 years, was charged and convicted by Mr. M. Latif Malik, Magistrate 1st Class with section 30 powers, Gujrat, under section 376/511 P. P. C. for the attempted rape of Mst. Haliman, a girl of five years of age, and sentenced to five years.' rigorous imprisonment. He appealed against his conviction (Criminal Appeal No. 757 of 1953) and the proceedings came up for hearing before Abdul Aziz, J.
In the course .of the hearing the learned Single judge formed the opinion that in face of the evidence produced by the prosecution the conviction under, section 376511 P. P. C. was wrong, and in order to rectify the illegality he issued notice to Fazal Karim to appear and show cause why he should not be convicted under section‑ 376 P. P. C. and his sentence enhanced. After notice had been issued, however, the judgment of their Lordships of the Federal Court in the case Shera v. The Crown (P L D 1954 F C 141) came to the attention of the learned judge, and being of tile opinion that certain observa tions in the above Federal Court decision appeared by implication to rule out the possibility of altering the conviction from one under section 376/511 to one under section 376 P. P. C. he referred the following two questions for the decision of a larger Bench :‑
(a) Whether the present case is rally distinguishable from the Federal Court decision in Shera v. The Crown
(b) If so, whether the conviction can be altered from section 376/511 P. P. C. to section 376 P. P: C. with or without enhancing the sentence
This judgment will therefore be confined to answering the above questions.
To the first question I‑have no hesitation in returning an affirmative answer the facts of this case being clearly dis tinguishable from those in Shera's case. In that case the facts briefly are that the accused were charged inter alia in the Court of Session for offences under sections 302/149 and 148 P. P. C. They were held not guilty on the former charge but convicted of the latter. They appealed to this Court and their Lordships issued notice to all the convicts with the exception of one to show cause why the finding in regard to the offences committed by them be not altered to that of murder and their sentences enhanced in revision. In the result, the finding of acquittal recorded as the learned Sessions Judge on the charge under section 302/149 P. P. C. was altered under section 423 Cr. P. C. to one of conviction, and acting under section 439 Cr. P. C. their Lordships enhanced the sentence of all the convicts concerned to transportation for life.
Against the above decision of this Court the convicts appealed by special leave to the Federal Court and the view of the majority of the learned judges hearing the appeal was that the action of this Court was illegal. The relevant portion J of the judgment of Abdul Rashid C. J. runs :--
"The words alter the finding' cannot be taken to have been used in an unrestricted sense. The appellate Court can alter the finding only if it maintains the sentence pr reduces it. It cannot isolate the words alter the finding' and completely ignore the qualifications which make the alteration possible, that is, it must maintain the sentence or reduce it. Section 423 (1) (a) deals with appeals from orders of acquittal. A finding of acquittal can be converted into a finding of conviction only under clause (a) of sub section (1). Clause (b) of subsection (l) deals only with appeals against orders of conviction. It appears to me, therefore, to be obvious that a particular method has been provided whereby an order of acquittal can be reversed. That method and that method alone can be used for the purposes of upsetting an acquittal. This follows from the decision of their Lordships of the Privy Council in the case of Nazir Ahmad v. The King Emperor (I L R (1936) Lah. 629). Their Lordships expressly laid down that where a power is given to do a thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden'. This rule was applied by the Judicial Committee to the recording of confessions under section 164 of the Cr, P. C. But it applies with equal force to the provisions of sections 417 and 423 of the Code. Section 417 and 423 (1) (a) prescribe the method of securing a reversal of an order of acquittal. Such a reversal cannot be allowed to be secured by resorting to the provisions of section 423 (1) (b) read with section 439 of the Code.
Section 439 ' of the Cr. P. C. authorizes the High Court to enhance a sentence. This is, however, subject to the qualification that the High Court cannot revert (sic.) a finding of acquittal into one of conviction. It appears to me to be illegal to alter the finding in exercise of the powers under section 423 of the Code and disregard the qualifications attached to the words 'alter the findings', and then to resort to sub‑section (4) of section 439 to enhance a sentence in such a manner as to convict a person of an offence of which he has bees acquitted. Such a procedure is in complete violation of the provisions of sections 417 and 423 (1) (a) of the Code. The, provisions of sections 423 and 439 of the Code cannot be availed of in such a manner as to reverse the finding of acquittal under the cloak of merely altering it".
It is also well settled that an acquittal need not be express, but may be only implied. Where, for example, an accused is charged under section 302 P. P. C. but convicted under section 304, then, even though the Court has not expressly acquitted the accused of the graver offence, an acquittal is nevertheless clearly implied.
In the present case, on the other hand, there was no acquittal express or implied, on a charge under section 376 P. P. C. The accused was charged only with an‑ attempt to commit a rape, and was convicted under section 376/511 P. P. C.
In my opinion, therefore, the facts of Shera's case are clearly distinguishable from those of the present, and the Federal Court decision in the former is not applicable.
The first part of the second question, namely, whether the conviction can be 'altered from section 376/511 P. P. C. to section 376 P. P. C. must also in my opinion be answered in the affirmative.
The finding of the learned Magistrate was one of convic tion, and section 423 (1) (b) is therefore applicable. It is, of course, settled that the power of altering a finding is subject to the other provisions of the Cr. P. C. namely sections 233; 235 to 238, 423 (2) and 426 (vide the judgment of Akram J. in Shera's case at page 153 of the ruling cited above), but I can find nothing in any of the above sections that can be reasonably interpreted as limiting the power of this Court to alter a conviction from one under section 376/511 P. P. C. to one under section 376: As pointed out by Iqbal Ahmad C. J. in the case Zamir Qasim v. Emperor (A I R 1944 All. 137, at page 143), although the fundamental principle underlying sec tions 233 to 236 Cr. P. C. is that an accused person can be convicted of a particular offence only if he was charged with the same, sections 237 and 238 of the Code 'lay down excep tions to this principle and empower the trial Court, in the cases specified therein, to convict an accused person with respect to an offence even though he was not charged with it: In the present case section 238 has 'no application. That section deals with the situation in which a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence and such combination is proved, but the remaining particulars are not proved. In the present case, on the other hand, the act of the accused was a single act, the only question at issue being whether, that act constituted the completed offence of rape or only an attempt.
The relevant sections for the purposes of this case are therefore 236 and 237 of the Code. Section 236 runs :‑
"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".
The case under consideration clearly falls within the orbit of section 236. The act of the accused was a single act, and the answer to the question whether that act amounted to rape or merely to an attempt at rape depends on whether penetra tion is proved to have taken place. Unless and until all the available evidence, particularly the medical evidence, is taken into consideration, it may be said to be doubtful which of the two offences was committed.
Section 237 (1) [subsection (2) was repealed by the Amending Act (XVIII of 1923)] runs:‑
"If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he 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".
Applying the principle embodied in the above section to the present facts, the accused was charged under section 376/ 511 P. P. C., and if it appeared in evidence that he committed the completed offence of rape, for which he might have been charged under the provisions of section 236, he may be convicted of that offence although he was not charged with it. There are authorities for the proposition that where the accused has been convicted of the abetment of an offence, that conviction may be altered under section 423 Cr. P. C. to one of the substantive offence. For example, in the case Lal Chand v. Emperor (14 I C 604) the Punjab Chief Court altered a conviction from one 'under section 195/107 to one under section 195 P. P. C. Similarly, in the case Suraj Bhan v. Emperor (A I R 1935 pesh. 67) Middleton J. C. altered a conviction under section 324/114 P. P. C. to one under section 324/34 P. P. C. I can find no difference in principle between the alteration of a convic tion for abetment of an offence into a conviction for the substantive offence and the alteration of a conviction for attempt into one of conviction for the completed offence. I was argued before us that the presence of subsection 2A of section 238 Cr. P. C. which provides that when a person is charged with an offence he may be convicted of an attempt to commit such offence although the attempt is not separately charged, by implication rules out the converse powers of altering a conviction for attempt into one of conviction for the substantive offence, but this interpretation appears to me to be quite unjustified. The only reason for the inclusion of the subsection in question, which formerly formed part of section 237, in section 238 is to make it clear that for the purposes of section 238 an attempt is to be considered as on the same footing as a minor offence by comparison with the substantive offence. It further appears to me that the reason for singling out attempts for special mention is that were it not specifically so provided, the attempt to commit an offence might have been considered as not falling within the orbit of the section. '
The proposition that because an attempt is more lightly punishable than the substantive offence the conviction for the former cannot be converted into one for the latter is by implication rebutted in the case Kauromal v. Emperor (25 Cr. L J 1057) in which it was pointed out', firstly, that illustration (a) of section 236 Cr. P. C. shows that where a person is accused of an act which may amount to theft or receiving stolen property or criminal breach of trust or cheating, he may be charged with theft, receiving stolen property, criminal breach of trust and cheating or charged with having committed theft or receiving stolen property or criminal breach of trust or cheating and secondly, that under section 237 he may be convicted of the offence which he is shown to have committed although he was not charged with it in spite of the fact that whereas the offence of cheating is punishable only with one year, the offences of theft, receiving stolen property and criminal breach of trust are punishable with three years. It was further held that the mere fact that in illustration (a) to section 237 only three kinds of offences are mentioned, each of which has the same punishment, the illustration cannot he legitimately used to restrict the plain meaning of section 237 itself. On the basis of the above reasoning the learned Judicial Commissioners laid down that they, acting as an appellate Court, had the power to alter a conviction from one under section 420 to sections 40) and 109 provided the proceedings do not prejudice the accused.
For the above reasons I hold that, there being no question of prejudice to the accused in the present case, his conviction can be altered by this Court from one under section 376/511 to one under section 376 P. P. C.
There remains the second part of question (b), namely, whether the sentence can be enhanced on altering the conviction.
It is abundantly clear that the power of enhancing the sentence in appeal is expressly denied to a High Court by the concluding words of section 423 (1) (b), the only jurisdiction the Court has in this respect being either to maintain the sentence or to reduce it.
In my opinion, however, this Court is perfectly competent to enhance the sentence in the exercise of its revisional powers after having dealt with the appeal. As held by their Lord ships of the Privy Council in the case Chunbidya v: King Emperor (I L R 57 All. 156 (P C)) "the powers of revision are given to the High Court in the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge. Their Lordships are clearly of opinion that when the High Court has before it on appeal a record of a criminal proceeding, the condition precedent is performed, and the High Court can then, though the record has only come to its knowledge in the appellate proceeding, proceed to exercise its revisional powers if it chooses to do so".
It is true that in Shera's case the majority view of their Lordships of the Federal, Court is that the High Court cannot exercise its revisional powers under section 439 Cr. P. P. for the purpose of enhancing a sentence after a finding of acquittal has been altered in appeal to one of conviction, but it is nowhere laid down that the power of enhancement cannot be exercised when a finding of conviction has been legitimately altered. The relevant portion of the judgment of Abdul Rashid C. J. runs :‑
"Section 439 Cr. P. C. authorises the High Court to enhance a sentence. This is however subject to the quali fication that the High Court cannot revert (sic) a finding of acquittal into one of conviction".
These words clearly imply that where a finding of acquittal has not been reversed into one of conviction, the sentence may be legitimately enhanced in revision.
'I would therefore answer both the questions referred to us in the affirmative subject in the case of question (b), to the qualification that the powers of enhancing the sentence can only be exercised in revision and not in appeal.
Sh. Rafiq Ahmad, for Appellant.
F. M. Anwari, for Advocate‑General for Respondent.
--‑This should be read in continua tion of my order dated the 31st of May, 1954. The facts stated therein make out a case under section 376 P. P. C. In view of the decision of the Division Bench, the conviction under section 376/511 P. P. C. can be altered to one under section 376 P. P. C. I, therefore, alter it from section 376/511 P. P. C. to one under section 376 P. P. C., but I do not consider it necessary to enhance the sentence, as in my opinion a sentence of five years' rigorous imprisonment is not grossly inadequate.
A. H. Appeal dismissed.
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