Through this petition under section 561-A, Cr.P.C. The petitioners seek setting aside of the impugned judgment, dated 23-5-2002 passed by the learned Additional Sessions Judge, Multan, by which the petitioners have been convicted under section 457, P.P.C. And sentenced to two years' R.I. Alongwith fine of Rs.25,000 and in default thereof to further undergo three months' S.I. It has been ordered that the sentence of the petitioners under sections 457/411, P.P.C. Shall run concurrently. Benefit of section 382--B, Cr.P.C. Was extended to the petitioners.
2. The brief facts of the case are that the petitioners are accused in case F.I.R. No.331 of 2000 registered under section 457/380, P.P.C. At Police Station Mumtazabad, District Multan which was lodged on the statement of Anwar-ud-Din respondent No.2. After the completion of the investigation report under section 173, Cr.P.C. Was submitted and both the petitioners confessed the charge before the learned trial Court on 18-12-2000 and they were convicted under section 411, P.P.C. And were directed to suffer R.I. For five months each. This judgment was challenged by respondent No. 2 in revision under section 439, Cr.P.C. Before the learned Sessions Judge and the case was entrusted to the learned Additional Sessions Judge who has passed the impugned judgment.
3. Learned counsel for the petitioners contends that the petitioners were not charge-- sheeted under section 457, P.P.C. Hence their conviction under section 457, P.P.C. Is illegal and unlawful and is liable to be set aside by this Court. It is further contended that the impugned order is illegal and is a nullity in the eyes of law.
4. Learned counsel for respondent No.2 on the other hand contends that the petitioners had committed heinous offences and were not entitled to any leniency but the trial Court omitted to convict the petitioners under section 457, P.P.C. In spite of the fact that they had confessed their guilt about the commission of the crime.
5. I have heard the learned counsel for the parties and have gone through the impugned judgment passed by the learned Additional Sessions Judge. The petitioners were convicted and sentenced to five months' R.I. By the learned trial Magistrate and the complainant/respondent No.2 filed a revision petition under section 439-A, Cr.P.C. For the enhancement of the sentence under section 411, P.P.C. And also for passing conviction and sentence against the petitioners under sections 457/380, P.P.C. As they had confessed their guilt before the learned trial Court.
6. The perusal of the impugned judgment shows that the learned Additional Sessions Judge has given no finding regarding enhancement of sentence awarded by the learned trial Magistrate in either way under section 411, P.P.C. But chosen to pass conviction under section 457, P.P.C. And sentenced the petitioners to two years' R.I. Alongwith fine of Rs.25,000 and in default therefore to further undergo S.I. For three months. Under section 439-A, Cr.P.C. a Sessions Judge or an Additional Sessions Judge has been conferred powers being used by the High Court under section 439, Cr.P.C. And according to its subsection (1) the revisional Court may enhance the sentence but clause (a) of subsection (4) to section 439, Cr.P.C. Clearly provides that in revisional jurisdiction the Court cannon convert a finding of acquittal into one or conviction. In such a situation it is a right procedure to remand the case to the learned trial Court to re-write the judgment keeping in view the observation made by the revisional Court as when the learned trial Magistrate had omitted to mention about offence under section 457, P.P.C. While convicting the petitioners under section 411, P.P.C., it may be presumed that the petitioners were acquitted by him from the offence under section 457, P.P.C.
7. The impugned judgment is ambiguous. It does not disclose on what consideration the finding of conviction of the petitioners under section 457, P.P.C. Was passed; whether the petitioners were also charge-sheeted under the same offence by the learned trial Court and they had confessed the same too or there was any evidence available on the record to prima facie connect them with the said offence. The learned Additional Sessions Judge has also failed to observe whether sentence of five months awarded by the learned trial Magistrate was sufficient to meet the ends of justice or was liable to be enhanced which was right , within his competence under section 439(1), Cr.P.C.
8. For the foregoing reasons, this petition is accepted, the impugned judgment, dated 23-5-2002 is set aside and the revision petition is remanded for its decision afresh In accordance with law keeping in view the above observations within three months.
9. Before parting with this judgment I am constrained to observe that in the judgment, dated 18-12- 2000 passed by the learned trial Magistrate it is recorded that the accused had opted to confess their guilt by leaving their right to obtain copies of the statements of the witnesses recorded under section 161, Cr.P.C. 164, Cr.P.C. And other documents as required under section 241-A, Cr.P.C. And while dispensing with the same charge was framed against them. It is not a correct procedure and should not be observed in future as section 241-A, Cr.P.C. Relating to trial of cases by Magistrate and section 265-C, Cr.P.C. Relating to trial of cases by Court of Session are mandatory provisions and accordance to the same the requisite copies are required to be supplied to the accused not less than seven days before the commencement of the trial. As in the case in hand such matter is not under challenge before this Court, I do not want to comment upon the same any more on the judicial side. Copy of this judgment shall be sent to all the District and Sessions Judges in the Punjab for strict compliance of the aforesaid provisions by the members of the subordinate Judiciary.