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Criminal Reference No. 359 of 1954 decided on 3^rd May, 1955.

Criminal Procedure Code (17 of 1898), S. 439 (6)‑Person showing cause against enhancement of sentence may show cause against conviction even where he had pleaded guilty.

Section 439 (6) which entitles a person showing cause against enhancement of sentence to show cause also against his conviction is subject to no such bar as is an appeal, a plea of guilty does not take away the right of showing cause against his conviction.

H. T. Raymond, for the Crown

Ali Ahmad Fazeel, for Opponent

‑The learned District Magistrate, Tharparkar, has referred this case to us recommending that the sentence of Rs. 20 fine be enhanced. The opponent was prosecuted under section 211 P. P. C. in that he lodged first information at Jamshedabad Police Station on 2nd January, 1950 as under :‑

"That I am 'hari' of Mir Fateh Muhammad Khan of Tando Jan Muhammad, Four days back thirty buffaloes trespassed in my wheat cultivation. I called Alu Khaskheli who was in his own field. He came and then we both drove the buffaloes to our zamindar at Tando Jan Muhammad. On our way we saw Jinado, Bahadur Kapris and Samoo Bhund going on a horse at Puran near Khudadad village. We suspected them to be the owners of the buffaloes and also suspected that they would fight with us. I sent Alu Khaskheli to inform Mewo Mastoi who lives nearby. Aforesaid Kapris and Samoo reached us. They tied my arms with my turban. In the meantime Mewo Mastoi and Alu Khaskheli came. On seeing them the accused bolted away. They united my arms. Then I went and informed Mir Sahib of the above incident. He directed me to lodge the report with the police."

The police investigated and sent up the papers to the S. D. M. for B. Summary which was given. At the trial two persons Budho and Mewo were examined. Mewo has been mentioned in the body of the first information. His evidence in Court was that the accused had come to him and had asked him to give evidence to which the witness replied that he would say what he knew. In cross‑examination it was put to him that there was a dispute between the two zamindars and he agreed that this was so and that this dispute has now been ended. It was put to the witness that he had been asked not to give evidence in the first information lodged by the accused and he denied this. It seems to us fairly clear that if a person is going to lodge a false information 4 days after the incident he is going to come to an agreement with a person who is mentioned in the first information as being witness on his side. We therefore think Mewo must have been won over by the other side. The other witness Budho said Allu had told him that cattle owners were rescuing their cattle but when he went he found that there were no cattle and no one taking away the cattle. We do not know how Budho came to be in the picture at all.

The rest of the evidence was that of the police and a mashirnama and this evidence is completely neutral. Then the accused was examined and he stoutly denied the offence. Then when the charge was framed he pleaded guilty and was fined Rs. 20. The learned Magistrate being at pains to justify this "very light sentence".

In the first place from the summary of the case it is clear that no one has come forward to say that the first information was false. Budho has merely said that the witness Allu who himself has not been examined told him something that was not verified when he went there. Mewo, as we have pointed out, merely says that he had seen nothing in this case. The persons who were implicated in the first information have not been examined. We think that there has been a settle ment of disputes between the zamindars concerned and that the offence disclosed in the first information was hushed up. And when it carne to Court a light sentence has been inflicted upon the appellant.

It remains to be said that section 439 (6) which entitles a person showing cause against enhancement of sentence to show cause also against his conviction is subject to no such bar as is an appeal, a plea of guilty does not in our opinion take away the right of showing cause against his conviction. This seems fair since in a case of enhancement of sentence the Crown moves to make his position worse and he should be entitled to make his position better.

A. H. Order accordingly.

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