ORDER

Ismail and Mulla, JJ. - In the case of Zamir Qasim a point of law has arisen which relates to the interpretation of Section 428(1)(b)(2), Criminal P.C., which says that the appellate Court may in an appeal from a conviction alter the finding, maintaining the sentence, or with or without altering the finding reduce the sentence. It has been argued by learned Counsel for the Crown that in case the charges under Sections 120B and 457, Penal Code, are not made out against Zamir Qasim, it is open to this Court to convict him either u/s 411 or Section 414, Penal Code. He was charged of these offences along with others in the Court below. The learned Sessions Judge, however, found him guilty under two counts only, namely, Sections 120B and 457, Penal Code. There is no specific order of acquittal with respect to other charges, but from the language of the charge and the finding of the learned1 Judge of the Court below with respect to that charge, it is manifest that in his judgment the appellant Zamir Qasim was not guilty of an offence u/s 411 or Section 414, PenalJCode. It is urged on behalf of Zamir Qasim that he must be deemed to have been acquitted of those charges by implication.

2. The question for consideration is whether this Court is empowered to convert the finding of an acquittal into one of conviction. This matter has given rise to some divergence of judicial opinion. A large number of cases have been cited before us by the learned Assistant Government Advocate. We propose referring to a few of them. The first case in point is Queen-Empress y. Jabanullah ('96) 23 Cal. 975. Banerjee J., in course of his judgment observed:

Section 423, Clause (b) has no such restriction imposed upon it. There is under that clause only one restriction to the power of the appellate Court on an appeal from a conviction, and that is, that it cannot enhance the sentence. It is possible to imagine cases in which this restriction may stand in the way of the appellate Courts altering the finding. Thus, if an accused person is charged with having murdered A, and also with having caused grievous hurt to him, and is acquitted of the former offence but convicted of the latter and sentenced to seven years rigorous imprisonment by the first Court, the appellate Court cannot, on the appeal of the accused, alter the finding into one of guilty of murder, because, as it cannot enhance the sentence, the result will be that a person convicted of murder for which the only punishment is either death or transportation for life, will be punished merely with imprisonment for seven years - a sentence which is not in accordance with law.... I think the appellate Court can, in an appeal from a conviction alter the finding of the lower Court and find the appellant guilty of any offence of which he may have been acquitted by that Court.

This case was followed in Emperor v. Sardar (12) 34 All. 115. In that case there was no specific order of acquittal by the trial Court. The learned Judge, however, held that in appeal it was permissible for him to convert the finding of acquittal into one of conviction. The same view was taken in Dulli Vs. Emperor, AIR 1918 All 65 In that case there was a specific order of acquittal :' see also Raghunath and Others Vs. Emperor and Emperor Vs. Jagannath Gir and Others . The following observations of the learned Judges in Kishan Singh v. Emperor ('28) 15 AIR 1928 P.C. 254 are significant:

The case in Raghunath and Others Vs. Emperor , decided by a Bench of which one of us was a member, was very similar to the case before us.... It was held by this Court that it was open to the High Court u/s 423, Criminal P.C., to convict the accused u/s 147, Penal Code, inasmuch as there was no acquittal on the charge under that section, but merely an omission to record a conviction.

3. The distinction pointed out by the learned Judges does not appear to be very material in view of the observations in Kishan Singh v. Emperor ('28) 15 AIR 1928 P.C. 254. Th