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Criminal Petition No. 111‑R of 1985, decided on 1st July, 1986.

(On appeal from the judgment, dated 12‑10‑1985 of the Lahore High Court in Criminal Revision No. 706 of 1983) .

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), Ss.304‑I/304‑II‑‑Criminal Procedure Code (V of 1898), 5.435‑‑Trial Judge convicting accused under S. 304, Part II, Penal Code, but High Court on revision by complainant altering conviction from Part II to Part I of 5.304, Penal Code, and increasing sentence on ground that Criminal Court committed a mistake in convicting accused under Part II of S. 304, P.P.C.‑‑High Court, held, was not competent to alter sentence as such under its revisional jurisdiction‑‑Convict already released from Jail on serving out his sentence awarded by trial Court Re-arresting of accused to serve out a further period of imprisonment as a part of sentence awarded by High Court not desirable‑‑Petition converted into appeal and appeal accepted and order of High Court set aside.

Shera v. Crown P L D 1954 FC 141 ref.

Salimuddin v. The State 1984 S C M R 943 rel.

Malik Abdus Sattar Chughtai, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Khalid Mahmood, Advocate Supreme Court and Fazle Hussain, Advocate‑on‑Record for Complainant.

M. Bilal, Advocate Supreme Court and Rao M.Yousaf Khan, Advocate‑on‑Record for the State.

Date of hearing: 1st July, 1986.

The petitioner was tried under section 302, P.P.C. on the allegation that he had committed the murder of one Sher Baz. The learned Sessions Judge, Khushab, by his judgment and order, dated 9‑7‑1983, held the petitioner guilty of culpable homicide not amounting to murder of Sher Baz deceased ‑and convicted him under section 304, Part II, P.P.C. and sentenced him to five years' R.I. and also to a fine of Rs.5,000 or in default to undergo further R.I. for six months.

2. Feeling aggrieved, the complainant Yar Muhammad filed a revision before the High Court under section 435 read with section 439, Cr.P.C. praying that the conviction of the petitioner recorded under section 304, Part II, P.P.C. be converted under section 304, Part I, P.P.C. and he be sentenced in accordance with law.

3. The revision petition was admitted by the High Court to consider the legal question whether the conviction recorded under section 304, Part II, P.P.C. should not be converted into one under section 304, Part I, P.P.C. and if so what sentence should be awarded in the case

4. The learned Judge in the High Court found that the circumstances in which the learned trial Judge held that the respondent had exceeded his right of self‑defence appeared to be "correct and appropriate on the basis of the evidence on the record. The conviction, therefore, should have been recorded under section 304, Part I, P.P.C". The learned Judge thereupon, altered the conviction of the petitioner from one under section 304‑II , P . P . C . to that under section 304‑I, P . P . C . , and sentenced him to seven years' R.I. and to a fine of Rs.20,000 or in default thereof to undergo further R.I. for two years' vide order, dated 12‑10‑1985.

5. Mr. Abdus Sattar Chughtai, learned counsel for the petitioner, has submitted that an accused who is convicted under Part II of section 304, P.P.C. is impliedly acquitted from an offence falling under Part I of section 304 , P . P . C . because the two parts of section 304 , P . P . C . contemplate distinct offences; therefore, the High Court cannot alter the conviction recorded under Part II of section 304, P.P.C. to one under Part I of the same section in exercise of its revisional powers. In support of this submission reliance was placed on Shera v. Crown PLD 1954 F C 141.

6. Mr. Khalid Mahmood, learned counsel for the complainant, in reply, drew our attention to the judgment of the learned Sessions Judge wherein he had observed:‑‑

"Thus, this is a case of man slaughter, short of murder, because the accused had caused fatal injuries to the deceased exceeding his private right of defence of property and person permissible under the law. He had no intention to commit any such murder and to cause such fatal injuries but he happened to cause such injuries. He had knowledge that the injuries which he is going to cause with his fire‑arm, would take the life of the victim. Had he observed a little bit of restraint the outcome may have been less painful. In any case Exception (2) of section 300 of Pakistan Penal Code is available to the accused. He is thus liable under Part II of section 304, P.P.C. and not under section 302, P.P.C."

and submitted that on the finding of the learned Sessions Judge himself the offence found to have been committed would not fall under Part II of section 304, P.P.C. but fell within the purview of Part I of section 304, P.P.C. According to him, reference to Part II of section 304, P.P.C. in the order of the learned Sessions Judge was really a misdescription because he had actually found the petitioner guilty under Part I of section 304, P.P.C. and convicted him of that offence. The victim in Shera's case, therefore, was not attracted because here the case was not of alteration of the conviction under section 304‑II, P.P.C. to one under section 304‑I, P.P.C., but merely of the enhancement of sentence for the conviction under section 304‑I, P.P.C. which could have been ordered, since the, petitioner had due notice in this regard.

7. Mr. M. Bilal, Advocate, appearing on behalf of the Advocate General, Punjab, supported the submission of Mr. Khalid Mahmood.

8. At first sight the argument of Mr. Khalid Mahmood appears to be attractive. On further scrutiny, however, it cannot be sustained.

We find that the learned Sessions Judge has clearly said, at more than one place, that the offence of which the petitioner was liable fell under Part II of section 304, P.P.C. and that he was being convicted under section 304, Part II, P.P.C. Again, the learned Judge in the High Court has altered the conviction from one under section 304, Part II, P.P.C. to that under Part I of section 304, P.P.C. It is true that the learned Sessions Judge committed a mistake in convicting the petitioner under Part II of section 304, P.P.C. It was for this very reason that the High Court interfered and altered the conviction. But this could not have been done by it under its revisional jurisdiction.

9. Normally, in these circumstances, we would have been reluctant to interfere with such an order of the High Court. But we find that the petitioner was released from jail on 6‑5‑1985 after serving the entire period of his sentence i.e. five years, as awarded by the learned trial Judge. The fine imposed upon him has also been deposited. The effect of the order of the High Court is that he must be re‑arrested in order to serve a further period of two years' imprisonment which in the present circumstances does not appear to be desirable. A similar view was taken, in somewhat like circumstances, by this Court in Salimuddin v. The State 1984 S C M R 943.

10. We would, accordingly, convert this petition into an appeal and allow it. The order of the High Court, dated 12‑10‑1985 is, accordingly, set aside.

M. Y. H. Appeal allowed.

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