1. ' Izzat Khan, petitioner herein, was charged under section 307, P.P.C. For murderous assault on the complainant Muhammad Rahman in F.I.R. No, 12 of P.S. Shabqadar recorded on 11-1-1984. He was accused of firing with a 5-shot rifle at the complainant and injuring him on the left thumb and left buttock. He faced trial before Mr. Hayatullah Khan, M.I.C. Charsadda under section 307, P.P.C. After recording evidence the trial Magistrate found that both the injuries sustained by the complainant were grazed wound, simple in nature. He, therefore, convicted the petitionerr under section 324, P.P.C. Instead of section 307, P.P.C. And vide judgment, dated 13-6-1984 sentenced him to undergo R.I. For three months and to pay a fine of Rs,10,000 in default of which to suffer further three months'
2. S.I. Half of the fine, if realised, was to be paid to the complainant as compensation. He was also given benefit of section 382-B, Cr.P.C. The petitioner did not file an appeal. However, a revision petition under section 439-A, Cr.P.C. Was filed before the learned Sessions Judge, Peshawar Camp Charsadda for enhancement of the sentence. The learned Sessions Judge instead of enhancing the sentence of the petitioner under section 324, P.P.C. Altered his conviction under section 307, P.P.C. And sentenced him to undergo 2 years' R.I. With fine of Rs,5,000 or suffer six months' R.I. In default, vide judgment, dated 14-10-1984. By the present petition under section 561-A, Cr.P.C. The petitioner has challenged the impugned order of the learned Sessions Judge.
3. 2The Sessions Judge, while acting under section 430-A, Cr.P.C.Exercises the same powers as are available to the High Court unde section 439, Cr.P.C. However, according to subsection (4) of section 439, Cr.P.C. The High Court has no authority to convert a finding of acquittal into one of conviction. Obviously this limitation would also apply to the authority of a Sessions Judge. It was urged by the learned counsel for the petitioner that the trial Magistrate had, in not convicting the petitioner under section 307, P.P.C. And instead convicting him under section 324, P.P.C. Acquitted the petitioner under section 307, P.P.C. And as such, the learned Sessions Judge could not convert his acquittal under this section to one of conviction. In support of this contention he has relied upon Kishan Singh v. Emperor AIR 1928 PC 254. In this case an accused was charged with the offence of murder under section 302 in the Sessions Court.- He was, however, convicted under section 304 and sentenced to a term of imprisonment. The local Government applied to the High Court in revision. The High Court having considered the evidence came to the conclusion that there had been a miscarriage of justice in the trial Court. They accepted the application and directed that the conviction of the accused should be altered to a conviction under section 302, and they sentenced him to death. The Privy Council held that the accused must be deemed to be acquitted in the Sessions Court of the charge of murder, that the order of the High Court resulted in altering a finding of acquittal into one of conviction and was, therefore, without jurisdiction.
2. It 'was urged by the learned counsel for the petitioner that the petitioner was deemed to have been acquitted of the charge under section 307, P.P.C. And his conviction under section 307, P.P.C.
4. And enhancement of sentence as well by the learned Sessions Judge were without jurisdiction. The learned counsel for the petitioner has further drawn my attention to the case of H.H.B. Gill and others v. Emperor AIR 1947 Cal. 162 where in a revision application by the Government an enhancement of sentence was prayed for on the ground that the trial Court's finding amounted to the commission of a more serious offence under section 161, Penal Code, though the Magistrate recorded a conviction under section 165, Penal Code, and as such the sentence was lenient. But it was held in this case that as there had been an acquittal of a charge, the High Court had no power to convert in revision a finding of acquittal into one of conviction, but the conversion could only be made by way of an appeal by the Government; and, therefore, the conviction from one under section 165 could not be altered to one under section 161. Furthermore, in the case of Ghulam Jilani v. Emperor AIR 1941 Lah. 425 it was held that it is not open to the High Court in revision to convert a finding of acquittal, into one of conviction and in the event of a complete acquittal, the only remedy is an appeal against the acquittal by the Crown.
5. 4It shall be seen in the case in hand that the petitioner was charged under section 307, P.P.C. But was ultimately convicted under section 324, P.P.C. This would mean that he was acquitted of the charge under section 307, P.P.C. Moreover, the revision petition moved by the State before the learned Sessions Judge contained the only prayer that the sentence passed by the trial Magistrate may be enhanced to a reasonable extent. Even otherwise the remedy against order of acquittal was an appeal to be filed by Government. This course of action was not adopted by it and instead there was filed a revision petition for enhancement of the sentence only. This would show that the State also did not want the alteration of the conviction but only enhancement of the sentence passed by the trial Magistrate. As such the learned Sessions Judge acted illegally, without jurisdiction and with material irregularity.
6. 5 It was urged by the learned counsel for the State that the error committed by the learned Sessions Judge was curable under section 537, Cr.P.C. I have given anxious consideration to this argument but I am unable to accept it for the simple reason that it is not a case of error, omission or irregularity in the proceedings or in the mode of trial but the learned Sessions Judge acted without jurisdiction. As such it is not a case of mere irregularity. Even in the case cited in this judgment the appeals were accepted, impugned orders were set aside and recourse to section 537, Cr.P.C. Was not ordered.
7. 6 Since a revision petition has already been entertained by the learned Sessions Judge, the illegality committed could only be set aside by an application under section 561-A, Cr.P.C. To this Court to secure the ends of justice.
8. 7I would, therefore, accept this petition, set aside the impugned judgment of the learned Sessions Judge and acquit the petitioner of the charge under which he has been convicted and sentenced by the learned Sessions Judge. He shall be set at liberty forthwith if he has undergone the sentence passed by the trial Magistrate, or is not wanted in any other case.