1. SHABBIR AHMED, The question is whether a Court of appal has suo motu power to issue notice to the acquitted accused in exercise of power under Section 423, Cr.P.C, in absence of any appeal filed against their acquittal, while hearing the appeal filed by convicted accused against the conviction recorded against him.
2. The question referred to above has arisen in the following circumstances:- Appellant Naveed was tried along with acquitted accused by Special Judge for Speedy Trial, Karachi in Special Case No. 3/92 for offences under Sections 467, 478, 489-A, 489-B, 489-C, 489-D, PPC, he was convicted and sentenced to suffer R.I. For seven years and i.e of Rs.50,000/- in default to pay the i.e, further to undergo one year, by judgment dated 11.4.1984, whereas co-accused Ali Gohar, Irshad Ahmed, Azharuddin and Muhammad Naqi were acquitted of the charge.
3. The State has not filed appeal against the acquittal of above-mentioned persons accused. During the hearing of appeal, the learned bench was of considered opinion that notice be issued under Section 432, Cr.P.C, to the acquitted accused named above to appear before the Court on 13.5.1999, but without assigning the purpose of such notice. The order reads as under:- "After hearing the arguments in detail and going through the judgment and evidence on record in minute particulars, we are of the considered opinion that notices be issued u/S. 423, Cr.P.C, to 'Acquitted accused namely, Ali Gohar son of Muhammad Sadiq, Irshad Ahmed son of Imtiaz Hussain, Azharuddin s/o Hameeduddin and Muhammad Naqvi s/o Abdul Aziz, to appear before this Court on 27.5.1999. Notices be handed over to Muhammad Hatifn Baloch, Inspector FIA, Crime Circiter-II, and Mir Mazhar jabbar, Asstt. Director Circle-II, FIA, for effecting service upon the acquitted accused, who are present in Court and have been apprised of the situation and it is expected that they would serve the notices in any case upon the above-named acquitted accused."
4. Mr. Muhammad IIyas Khan, learned counsel has filed power on behalf of the acquitted accused pursuant to notice to them and had shown his reservation as to the power of the Court in issuance of notice in absence of appeal against the order of acquittal. On 16.10.2002 we considered it proper to examine the scope of Section 423, Cr.P.C and whether the Court has suo motu power to issue notice to the acquitted accused in absence of any appeal filed against acquittal. Counsel Mr. Azizullah K. Shaikh, representing the appellant Naveed and Mr. Muhammad IIyas and Mr. Khursheed H. Hashmi, DAG were asked to assist the Court on the point referred to above.
5. Before proceeding further, we would venture to reproduce the provisions of Section 423, Cr.P.C, which reads as under:'
6. "423. Power of Appellate Court in disposing of appeal.- (1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 411-A, sub-section (2) or Section 417, the accused, if he appears the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or sent for trial to the Court of Session or the High Court, as the case may be, or find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or sent for trial or (2) after the finding, maintaining the sentence, or,
(3) with or without such reduction and with or without altering the finding, alter the nature ofthe sentence, but, subject to the provisions of Section 106, sub-section (3), not so as to enhance the same;
(c) in an appeal from any other order, alter or reverse such order;
(d) make any amendment or any consequential or incidental order that may be just or proper."
7. The above sub-section (1) is divided in four sub-parts, but sub-parts (a) and -(b) are relevant to the point in issue. Subsection (1 )(a) refers to a case where there is an appeal from an order of acquittal in which case an Appellate Court can reverse the order and direct further enquiry or re- trial or find him guilty and pass sentence according to law. That would obviously be the case where the state or the party aggrieved has under Section 417 appealed from an acquittal. Subsection (1 )
(b) on the other had refers to the case where there is an appeal from a conviction, and is sub- divided into three parts (1) under which the Appellate Court can reverse the finding or sentence and acquit or discharge the accused or order him re-tried by Court of competent jurisdiction subordinate to such Appellate Court or sent for trial (2) or alter the finding, maintaining the sentence (3) with or without such reduction and with or without altering the finding, alter the nature of sentence.
8. Mr. Azizullah K. Sheikh, while pointed out clauses (a) and (b) of sub-section (1), with reference to their scope, maintained that in absence of appeal against acquittal, the Appellate Court cannot exercise suo motu power for issuing notice to such acquitted accused. He contended that the question is whether the Court is vested with the power to issue notice to the acquitted accused and according to him, no such power can be inferred from the provision of Section 423(1 )(b). He went further and contended that even a High Court has no jurisdiction to issue notice for upsetting the finding of acquittal in suo motu revisional jurisdiction into finding of conviction. He pointed out sub-section (l)(b) to Section 423, Cr.P.C, which empowers the Appellate Court in an appeal from the conviction can reverse the finding or the sentence and acquit or discharge the accused or order him to be retried or altering the finding maintaining the sentence or reduce the sentence. He further contended that under clause (a) in appeal against the order of acquittal, Court can reverse the order and direct that further enquiry may be made or that the accused be re-tried or sent for trial to the Court of Session or High Court, as the case may be, or find him guilty and pass sentence on him according to law.
9. His further submission was that under clause (d) the Court has power to make an amendment or any consequential or incidental order that may be just or proper but contended that even clause
(d) cannot be invoked for issuance of notice to the acquitted accused for .Any purpose. He pointed out that the purpose of clause (d) is to give power for passing a consequential or incidental order that may be necessary and just or proper. He further contended that clause (d) came to: judicial review before Ful! Bench of Calcutta High Cour ;r Mahi Singh v. Mangal Khanda (Volume 12-The Criminal l aw Journal Reports 529). In that case the question referred was whether an Appellate Court has power to order for compensation under Section 250 of the Code. The question came for consideration in the following circumstances:- "The petitioner lodged a complaint u/Ss. 379/411, PPC against three persons before Deputy Magistrate, who convicted the accused. In appeal before Joint Magistrate they were acquitted and the complainant was called upon to show-cause why he should not pay compensation of Rs.25 to each accused u/S. 250, Cr.P.C. No cause being shown, the order was made absolute. High Court issued a rule to show- cause why the order for compensation should not be set aside on the ground that Court has no jurisdiction to make an order in appeal granting compensation. The "consequential" or "incidental" was explained within the purview of the provisions that same must fall under one or other of the two heads; first, there are orders which follow as a matter of course being the necessary complements of the main orders passed without which the latter would be incomplete or in effective. Such are directions as to the refund of fines realized from acquitted appellants, or, on the reversal of acquittals, as to the restoration of compensation paid under Section 250; and for them no separate authority is needed.
10. Secondly, there are orders which, though ancillary in character, require more than the support of a Criminal Court's inherent jurisdiction and could- not be passed without express authority.
11. It was further observed that making of award for compensation would, consequently, seems to need express authority and an order, therefore, is not a "consequential" or "incidental" to an order of discharge or acquittal, unless the discharging or acquitting Court has aliunde power to make it. In an original Court it is by virtue of Section 250 'consequent' or 'incidental' to an order of discharge or acquittal made there but it is not quod alike order passed on appeal.
12. Mr. Shaikh also pointed out that Full Bench of Rangoon High Court in Ma Mya khan v. Maung ro Htwa (AIR 1933 Rangoon 288) also explained the expressions consequential' or incidental' orders with reference to Section 145, Cr.P.C, employed in clause (d)( 1) of Section 423 as follows:- "it is inadvisable that an attempt should be made by the Court to define such terms as "consequential orders" and "incidental orders", for, whether an order is a "consequential" or an "incidental" order depends upon the terms of the order under consideration in each particular case and the circumstances in which it is made."
13. Mr. Shaikh also referred the case of C-Dum v. King Emperor (AIR 1922 Allahabad 107) wherein the expressions 'consequential' or "incidental order" used in clause (d) of sub-section (1) of Section 423, Cr.P.C, were explained in following terms:- "The only consequential or incidental order within the purview of the provisions are orders which follow as a matter of course, being the necessary , complements to the main order passed, without which the latter would be incomplete or ineffective (such as directions to the refund of fines realised from acquitted appellants, or on the reversal of acquittals as to the restoration of compensation paid under Section 250 for which no separate authority is needed, and orders which though ancillary in character required more than the support of a Criminal Court's inherent jurisdiction, could not be passed without express authority."
14. Mr. Muhammad IIyas, learned counsel for the acquitted accused to whom notice has been issued supported the contention of Mr. Azizullah K. Shaikh by contending that notice issued to the acquitted accused in absence of any acquittal appeal is beyond the scope of appellate power enjoined by Section 423 and contended that issuance of notice was in excess of jurisdiction. To support this contention, he referred the case of Shera v. The Crown (PLD 1954 Federal Court 141), decided by Federal Court. The facts of the case were the seven appellants including Shera were tried for the offences under Sections 302, 149, 148, 366, 149, 379/199, PPC. Wajda was convicted under Section 302, PPC and was sentenced to death. All the accused were convicted under Section 148 and were sentenced to suffer six months' R.I. Goman was also convicted under Section 379 and sentenced to suffer six months. AII the convicted accused preferred appeal in High Court. After the appeal had been preferred a notice was issued to all the convicts, other than Walia, to show cause why the finding in regard to the offence committed by them be not altered to that of murder and their sentences be enhanced in revision. The learned judges of High Court accepted appeal of Walia in part and reduced his sentence from that of death to one of transportation for life. While disposing of the appeal of the other six convicts all of whom had been convicted under Sections 148 and 379 of the Pakistan Penal Code. The finding of acquittal recorded by the Sessions judge in their favour for an offence under Section 302/149 was altered under Section 423 of the Criminal Procedure Code and they were held guilty or murder. After altering the finding, the learned judges, acting on the revision side under Section 439 of the Code, enhanced the sentence in the case of each of these six convicts to transportation for life. The convicts preferred appeal, which was allowed. The opinion expressed was that "there is only one way of reversing a finding of acquittal, and that is for the Provincial Government to i.e an appeal against acquittal under Section 417 of the Code".
15. It was further observed that-- "The Appellate Court can alter the finding only if it maintains the sentence or reduces it. It ignored 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 sub-section (1) deals only with appeals against orders of convict."
16. It was further observed that therefore it is 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. The Judicial pronouncement by Privy Council in case of Nazir Ahmed v. The King-Emperor (ILR 1936 Lah. 629) was referred 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 method of performance are necessarily forbidden".
17. Mr. M. IIyas Khan, learned counsel, also referred a case from Indian jurisdiction decided by the Indian Supreme Court in Sunday Singh v. State of Punjab (AIR 1962 S.C. 1211), wherein the scope of the power of the Appellate Court under Section 423(1)(a) was expressed in para 9 of the report, which reads as under:- " Reverting then to the argument based on the provisions of S. 423(1 )(a) of the Criminal Procedure Code, it is obvious that the order of acquittal passed in favour of Rachhpal Singh cannot be set aside unless an appeal had been duly preferred in that behalf against the said order. But do the provisions of S. 423(l)(a) create a bar against the High Court incidentally considering the question about Rachhpal Singh's presence and conduct at the relevant time while it is dealing with the prosecution case against the three appellant's before it? When the High Court in appal considered the case against the three appellants, it had inevitably to examine the comment made by Mr. Sethi against the reliability or the witnesses on the ground that their evidence against Rachhpal Singh had not been accepted by the Trial Court and that necessarily meant that the High Court had to apply its mind to that problem as well. If in dealing with the case presented before it on behalf of the appellants it became necessary or the High Court to deal indirectly or incidentally with the case against Rachhpal Singh, there is no legal bar at all. It may be that in considering the evidence as a whole, the High Court may have come to the conclusion that the evidence against Rachhpal Singh was unsal Factory and If it had come to such a conclusion, it would have examined the said evidence in the light of this infirmity. On the other had, after considering the evidence, the High Court may well have come to the conclusion, as it has, in fact, done in the present case, that the evidence against Rachhpal Singh is also good and need not have been discarded. In our opinion, there is no doubt that if in appreciating the points made by the appellants before it the High Court had to consider the whole of the evidence in respect of the accused persons, it was free to come to one conclusion or the other in respect of the said evidence, so far as it related to Rachhpal Singh.
18. That is why we think that the point made by Mr. Sethi that S. 423(1 )(a) precluded the High Court from considering the merits of the order of acquittal even incidentally or indirectly cannot be upheld."
19. Mr. M. IIyas Khan also contended that even issuance of show-cause notice to the accused as to why he should not be sent-up for trial, while granting leave to appeal, was taken to be without jurisdiction, in Dr. R. V. Murthy v. State of Karnataka (AIR 1982 S.C. 677), in that case in an appeal against acquittal the High Court while granting leave to appeal to the State also ordered issuance of notice to the accused to show cause why he should not be sent-up of trial even before hearing the appeal on merits. That order was set aside by the Supreme Court with the observation that such cause of action at this stage resulted in gross and substantial injustice to the accused and amounted to a gross misuse of power of the High Court under Section 482, Cr.P.C, (as provision analogous to S. 423, Cr.P.C.).
20. Privy Council in case of Krishna Singh v. King Emperor (1928 ILR 50 Allahabad 722) by approving the Allahabad High Court's view in Emperor v. She Darshan Singh (AIR 1922 Allahabad 487) intended to lay down that neither an Appellate Court nor a revisional Court has power to reverse the finding of acquittal and convert it into one of conviction.
21. Similar situation came before a Division Bench of erstwhile Sindh judicial Commissioner Court in Jado Rahim v. Emperor (AIR 1938 Sindh 202) wherein accused was charged with murder under Section 302 but was convicted by Sessions Judge only under Section 304. On appeal by him, learned Judges of erstwhile Judicial Commissioner Court (Davis J.C. And Lobo, J.) came to the conclusion that there was sufficient evidence to sustain the charge under Section 302 and the question arose whether it was open to the Appellate Court to set aside the implied acquittal of accused by learned Trial Judge under Section 302 and then alter conviction under Section 304 to conviction under Section 302. Having considered this question, learned Judges expressed their view as follows:- "It is difficult to read into S. 423(1 )(b) the power to convert an acquittal into a conviction on an appeal against a conviction. We think the words "alter the finding, maintaining the sentence" occurring in S. 423(1 )(b)(2) must be read as a whole, and we could not in this case, for instance, alter the finding from one of conviction under S. 304, to one of a conviction under S. 302, I.P.C, and maintain the sentence because we could not for an offence under S. 302, IPC and maintain a sentence of ten years rigorous imprisonment. And even if the Judge in this case had imposed a sentence of transportation for life, we do not think we could for that reason have altered the finding from a conviction under S. 304 to a conviction under S. 302, IPC and then as a Court of revision have enhanced the punishment to one of death under S. 439, Cr.P.C, because we do not think the exercise of these powers can turn upon chance. We do not think the exercise of these powers can depend upon the chance that in a case under section 304( 1) the Judge has imposed the maximum penalty under the Section. We think the better view to take is that clause (b) of S. 423(1), Cr.P.C, does not apply to cases of acquittal, partial or total, but to cases of conviction and that clause . (a) applies to cases of acquittal; and that if the appellate powers of the Court are to be exercised to convert an acquittal into a conviction, then they should be exercised on an appeal against an acquittal under S. 423(1 )(a) and not on an appeal against a conviction under Section 423(1)(b), Criminal P.C. Which is the case here."
22. There is clearly a distinction between reversing a finding and merely altering it. Where an order of acquittal is to be converted into an order of conviction, it amounts to a reversal of the order. On the other had, where conviction under one section is altered to a conviction under some other section maintaining the sentence or reducing it or altering it, it amounts merely an alteration of the finding and not a reversal of the finding. Therefore, sub-section (1)(b) is not applicable to a case where there is an express order of acquittal and no appeal from acquittal is pending before the Appellate Court. In such a case, the Appellate Court has'. No power to reverse the finding at all. It cannot be convicting the recused of the offence of which he has been acquitted it vum the finding, by recording it as if it were merely an alteration of the finding.
23. This view is in the line of the view expressed by learned Judges of D.B. Of erstwhile Sindh Commissioner Court in Judo Rahim case (supra).
24. The upshot of the above discussion is tr. Ai notice issued to the acquitter: accused was a futile exercised and not available unde? Section 423 Cr.P.C t nea t lore die same was withdrawn Dy snort order dated 12.11.2002 and these are the reasons for the same.