| Citation(s) |
|---|
| 1955 SLG 107 1955 SLD 107 1955 PLD 447 |
Lahore High Court
Criminal Appeal No 757 of 1953, decided on 24th January, 1955 (Reference answered on 23rd December, 1954) from the order of Muhammad Latif Malik, Magistrate 1st Class with enhanced powers under section 30, Cr. P. C. Gujrat, dated the 30th September, 1953.
S. ARAHMAN, C.J. AND, J. ORTCHESON, J
Sh. Rafiq Ahmad and Mahmud Ali, for Appellant. Mazhar Saleem, for Advocate-General, for
Respondent
Criminal Appeal No 757 of 1953, decided on 24th January, 1955 (Reference answered on 23rd December, 1954) from the order of Muhammad Latif Malik, Magistrate 1st Class with enhanced powers under section 30, Cr. P. C. Gujrat, dated the 30th September, 1953.
S. ARAHMAN, C.J. AND, J. ORTCHESON, J
Sh. Rafiq Ahmad and Mahmud Ali, for Appellant. Mazhar Saleem, for Advocate-General, for
Respondent
FAZAL KARIM
VS
THE CROWN
Law:
Section:
Criminal Procedure Code (V of 1898), S. 423 (1) (b)---Accused charged and convicted under S. 376/511 P. P. C. Finding may be altered in appeal to one of conviction under S. 376 P. P. C. and sentence enhanced under S. 439 Cr. P. C. Criminal Procedure Code (V of 1898), Ss. 236, 237 (1). The accused was charged and convicted under section 376/ 511 P. P. C. Held, that conviction under section 376/511 P. P. C. can be altered to one under section 376 P. P C in appeal and sentence enhanced in accordance' with provisions of section 439 Cr. P. C. The principle embodied in section 237 (1) Cr. P. C. applied to such a case. There is no difference in 1Srinciple between the alteration of a conviction for abetment of an offence into a conviction for the substantive offence and the alteration of a conviction for attempt into one of conviction for the completed offence. Shera v. The Crown P L D 1954 F G 141 distinguished on the ground that there was no express or implied acquittal of the offence under section 376 P. P. C. in the present case. Zamir Qasim v. Emperor A I R 1944 All. 137, Lal Chand v. Emperor 14 I C 601, Suraj Bban v. Emperor A I R 1935 Pesh..67, Kauromal v. Emperor 25 Cr. L J 1057, Chunbidya v. King Emperor I L R 57 All. 156 (P C) ref. Appellant in police custody: ORDER OF REFERENCE ABDUL AZIZ KHAN, J.---Fatal Karim was convicted under section 376/511, P. P. C. by Mr. Muhammad Latif Malik, Magistrate 1st Class with enhanced powers under section 30 of the Code of Criminal Procedure at Gujrat, and sentenced to five years' rigorous imprisonment. Fazal Karim has appealed to this Court against his conviction and sentence. The prosecution case is that on 9th May, 1953, at about peshiwela, Mst. Haliman (aged five years) went out to ease herself towards the ihata of the appellant who carried her into his bur and raped her. At the trial the principal prosecution witness, Gullu (P. W. 2), her cousin (aged thirteen years), stated that at about moontime he was going from his house to the well and that when lie passed through the compound of the appellant he heard the cries of Mst. Haliman coming from the bur. He, therefore, went into the bur and saw the appellant…
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