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Petitioner: AHMAD ALI VS Respondent: THE STATE
P L D 1960 Dacca 828
P L D 1960 Dacca 828
Before Ispahani and Saltar, JJ
AHMAD ALI AND OTHERS‑Appellants
versus
THE STATE‑Respondent
Criminal Appeal No. 41 of 1959, decided on 11th May, 1959.
(a) Criminal Procedure Code (V of 1898), Ss. 236, 237 and Penal Code (XLV of 1860), Ss. 34 & 149‑Charge under S. 149 but conviction under S. 34, P. P. C.‑Not illegal.
The charges against the accused were under section 302 read with sections 149 and 148 of the Penal Code, 1860 but they were convicted under section 304 (I) read with section 34 of the Code. It was contended that the convictions of the accused under section 304 (1) read with section 34 without a formal charge was illegal:
Held that sections 34 and 149 of the Penal Code, 1860 deal with constructive liability and a slight variation in the facts estab lished from the facts alleged in the charge and a conviction for an offence on the facts established would not render it by itself bad in law in view of the provisions of section 236, read with section 237 of the Criminal Procedure Code, 1898.
Bhondu Das v. King Emperor I L R 7 Pat. 758 ; Barendra Kumar Ghosh v. Emperor I L R 52 Cal. 197 ; Pira and another v. Emperor 27 Cr. L J 818 ; Emperor v. Purshottam Ishwar Amin I L R 45 Cal. 834 ; Sardar Ali and another v. The Crown P L D 1956 F C 425 ; Muhammad Anwar and another v. The State P L.D 1956 S C (Pak.) 440.
A. M. Sayem, Daliluddin Ahmad Shamsul Haq Chowdhury for Appellants.
Salahuddin Ahmed, Deputy Legal Remembrancer for the State.
JUDGMENT
SATTAR J.‑The six appellants and 24 others were tried by the Additional Sessions Judge, Dacca, and 9 special jurors for offences under sections 302/149 and 148, P. P. C. The jury unanimously found the appellants guilty under section 304 (1), read with section 34, P. P. C. They returned a unanimous verdict of not guilty in regard to the charge under sections 302/149 against all the accused persons and a similar verdict of not guilty against them in regard to the charge under section 148, P. P. C. The learned Judge agreeing with and accepting the verdict of the jury acquitted the other accused persons of both the charges and convicted only the appellants under section 304 (1) read with section 34 of the Pakistan Penal Code and sentenced appellants Shafusa alias Safar Ali alias Shaffa, Joynal Abedin and Mafizuddin to undergo rigorous imprisonment for 10 years and appellants Ahamed Ali, Abdul Gafur and Khalil to lunderoo rigorous imprisonment for 7 years each.
2. The prosecution case shortly stated is that on the 19th Falgoon, 1362 B. S., corresponding to 3‑3‑56, Kuddus Bepari and his son Lal Mia were working in their land which was an accretion to Dag No. 1443 belonging to them. At about 8 or 9 a.m. on that day, the accused persons and others who were variously armed with dangerous weapons, such as juti, katra, koch, dao, lathi, etc., came upon the said land and, on seeing them, Kuddus Bepari and his son began to flee but were overtaken on a neighbouring field belonging to P. W. 12 Rajjab Ali and started assaulting them. Both of them fell down on the spot and died. It is said that P. W. 1 Mahiuddin who was working in a portion of the reformed land went to the thana and lodged the first infor mation report.
3. The defence claim that the disputed land belongs to the accused persons and that they were in possession of the same. They deny that the reformed land was an accretion to Dag No. 1443. It is claimed that the complainant partly were the aggressors and they came upon the land with a view to ousting the accused persons. Their further case is that some of the accused persons were also injured but fortunately they have survived the injuries.
4. It is contended on behalf of the appellants that the con victions of the appellants under section 304 (1)/34 without a formal charge under the said section is illegal. It is to be seen in the case that the appellants who have been convicted under sections 304 (1)/34 were not charged under that section or sections 302/34. The charges against them and the other accused per sons were under section 3(32, read with section 149, and section 148 of the Pakistan Penal Code. The learned Judge in the course of summing up of the evidence has observed that if the jury found that the prosecution failed to establish the common object alleged in the charges, those accused persons who were found to have the common intention to cause the death of Kuddus and his son and actually participated in causing the injuries to them would be held liable under section 302 or section 304 or section 326, as the case may be, read with section 34 of the Pakistan Penal Code. The learned Judge has further said that as the facts proved and the evidence accused with reference to the charge under section 149 would be the same if the charge were under section 34, P. P. C., the failure to charge the accused under section 34, P. P. C., could not result in any prejudice to the accused and, as such, the substitution of section 34, P. P. C., for section 149, P. P. C., must be held to be a formal matter. The learned Judge after the above observation has asked the jury to consider the case also under section 34 of the Pakistan Penal Code.
5. The learned Advocate for the appellants submits that the above directions of the learned Judge have seriously prejudiced the appellants who were never informed of the intention of the learned Judge to alter the charge. This is not a case of alternation of a charge falling under section 227 of the Code of Criminal Proce dure. Here the question is whether the appellants could be con victed under sections 304 (1)/34 of the Pakistan Penal Code when the charge against them was under section 392 read with section 149, P. P. C,
6. Both sections 34 and 149, P. P. C.1 deal with constructive liability and it is to be considered whether the appellants who have been convicted under sections 304 (1)/34; P. P. C., have been pre judiced in the absence of a charge under that section. On behalf of the appellants, no argument has been advanced to show how prejudice has been caused to them. The facts were already before the Court and the question that arose was whether on those facts an offence for which an accused was not charged could not form the basis of their conviction.
7. The learned Deputy Legal Remembrancer relies on the provisions of section 236 of the Code of Criminal Procedure in support of his contention that the conviction is legal. He in this connection refers to the decision in the case of Bhondu Das v. King‑Emperor (I L R 7 Pat. 758). In that case one Bhondu Das and some others were prosecuted under section 326, read with section 149 of the Indian Penal Code. The trying Magistrate convicted them under the said section. On appeal, however, the learned Sessions Judge acquitted the accused persons of any circumstance which could bring the case within section 149. He, however, altered their conviction from section 326, read with section 149, to section 326, read with section 34. In the appeal to the High Court, Courtney Terrell, C. J., who delivered the judg ment, considered the conflicting, decisions of the Calcutta High Court on the point and the learned Judge, after referring to some of the observations of Lord Sumner in the well‑known case of Barendra Kumar Ghosh v. Emperor (I L R 52 Cal. 197), observed with regard to a decision which took the view that such a conviction was bad in law as follows :‑
"The reasoning of the decision (entirely dispelled by Lord Sumner) was based on the view that section 34 necessarily in volved specific acts or a group of specific acts of a similar character which brought about the wounding or killing of the persons injured. At that time the Court did not understand the real meaning of section 34 and the whole basis of the decision has been destroyed by the judgment of Lord Sumner. Before that judgment it was believed that section 34 only covered a group of acts of a similar character which contributed to a com mon result but this view has now been dispelled and it follows that the same act on the part of Bhondu Das alleged in the charge and the evidence in this case in support of section 326 read with section 149 would also support a charge under section 326 read with section 34. By way of illustration we may ask whether in the case decided in the Privy Council the accused would have been better off if in addition to having been present and armed with a pistol he had shouted to the man who actually fired the fatal shot `kill him' or `shoot him'. It is obvious that in such circumstances the accused would have been no better off and that section 34 would still have been rightly applied by the Privy Council."
The learned Judge then referred to the decisions which supported the view that in such circumstances convictions were not bad and observed as follows :‑---
These cases illustrate the real test of whether a conviction can be upheld upon a charge which was not expressly formulated, i.e., whether the facts which it was necessary to prove and on which evidence was given on the charge upon which the accused is actually tried are the same as the facts upon which he is to be convicted of the substantive offence. If they are and if the accused is put to no disadvantage and would have had to adduce no further evidence then he may be rightly convicted of the substantive offence notwithstanding that the charge was originally framed under sections 147, 148 or 149. In our opinion, therefore, the view of the Sessions Judge was right."
8. In an earlier decision of the Lahore High Court in the case of Pira and another v. Emperor (27 Cr. L J. 818), the same view was taken. It was held that it could not be said that as the charges against the accused persons mentioned section 149 instead of section 34, P. P. C., they could be said to have been prejudiced because section 149 was wide enough to cover the principle of section 34, P. P. C.
9. It will not be out of place to refer to another decision in the case of Emperor v. Purshottam Ishwar Amin (I L R 45 Cal. 834), to which our attention has been drawn by the learned Deputy Legal Remembrancer. In that case several questions were considered by a Full Bench. Amongst them; the following questions which are relevant for our purposes may be quoted :‑---
"(1) Whether a statement recorded by any Magistrate in the course of a police investigation under section 164, Criminal Procedure Code, is evidence in a stage of a judicial proceeding within the meaning of section 193, Indian Penal Code, Expla nation 2 ?
(2) Whether such a statement can be said to be evidence in a stage of a judicial proceeding if the Magistrate who records it has no jurisdiction to inquire into or try the case ?
(3) Whether, if such a statement is not evidence in a stage of a judicial proceeding, but comes within the meaning of the words `evidence in any other case', in section 193, Indian Penal Code, it can be linked with a statement which is evidence in a stage of the judicial proceeding following on the investigation so that the two can be said to be a series of acts on which an alternative charge can be framed under section 236, Criminal Procedure Code, of intentionally giving false evidence ?"
Pratt, J. with whom the other learned Judges concurred, answered the first two questions in the negative and the third question in the affirmative. While considering the provisions of section 236, Code of Criminal Procedure, which provides for framing a charge in the alternative for different offences, Pratt, J., has observed as follows:
"The prosecution cannot establish exclusively any one offence, but are able to prove an act or series of acts which exclude the innocence of the accused, and show that he must have committed one of two or more offences. The prosecution establish a corpus delicti on the facts which can be proved and the facts which can not be proved are subsidiary facts important only to this extent that they decide under which penal provision the delictum falls, or on what occasion the offence was committed. In Illustration (a), the recent possession of stolen property His the corpus delicti. Whether the accused stole it himself or subsequently received it from the thief are subsidiary facts which only affect the question whether his delictum falls under section 379 or section 411 of the Indian Penal Code. In Illustration (b), the two contradictory statements constitute the corpus delicti and what cannot be proved is the subsidiary facts on which occasion the false evidence was given. If the one statement was evidence in a judicial proceeding and the other evidence in any other case, the alternative charges would be one under the 1st part and one under the 2nd part of section 193. Judgment could be in the alternative under section 367 (3), Criminal Procedure Code, and the punishment would be for the minor offence under section 72, Indian Penal Code."
The above observation, in our view, clearly depicts the purpose for which section 236, if read along with the illustrations there under, was enacted. A slight variation in the facts established from the facts alleged in the charge and a conviction for an offence on the facts established would not render it by itself bad in law in view of the provisions of section 236, read along with the illustrations, as well as section 237 of the Code of Criminal Procedure.
10. The question that has been raised before us, however, we feel, has been settled by decisions of our Federal Court and Supreme Court. In the case of Sardar Ali and another v. The Crown (PLD 1956FC425), 2 persons were convicted under section 302, P. P. C., and sentenced to death by the Sessions Judge and a Division Bench of the Lahore High Court armed the conviction. Before the Sessions Judge six persons were put on trial and they were charged under section 148 of the Pakistan Penal Code for rioting and for murder and simple hurt while being members of an unlawful assembly with the common object "to murder Bahadur Singh alias Zafarullah Khan and to cause injuries to Muhammad Aslam, Allah Ditta and Gulab." The trial Court on the evidence found the two appellants guilty of murder of the deceased and another accused guilty under section 323, P. P. C. The question that was raised before the Federal Court was that the appellants who had been charged with murder committed in the course of prosecution of the common object of an unlawful assembly could not be convicted individually of an offence under section 302, P. P. C., and further that the High Court could not employ the provisions of section 34, P. P. C., for the purpose of making the appellants jointly liable for the death of the deceased. Cornelius, J. on a consideration of the case re ported in 7 Patna 758, and quoting the passage, which has been reproduced by us early, in the concluding portion of the judgment, has observed as follows :‑--
"We entertain no doubt that on this view, the conclusion arrived at by the trial Judge, viz., that each of the appellants was individually guilty of murder was one which, on the proved facts, he was competent to reach, notwithstanding that the charge preferred against them in respect of the murder was under section 302, read with section 149, P. P. C. As we have already indicated, the view of the learned Judges of the Lahore High Court, viz., that the accused persons can be held to be guilty of murder by the application of section 34, P. P.C., is based on a correct appreciation of the principle contained in the latter sec tion although, in the circumstances of the present case, it would appear unnecessary to invoke the principle for the determination of the criminal liability of each of the appellants."
In the case of Muhammad Anwar and another v. The State (PL D 1956 S C (Pak). 440), it has been held that accused persons charged under section 302, read with section 149, P. P. C., can be convicted under section 302 in view‑of sections 236 and 237 of the Code of Criminal Procedure. In this case also, Cornelius, J., who delivered the judgment, in considering the question of prejudice raised, has observed as follows :‑
"The argument of prejudice raised by Mr. Manzur Qadir is unconvincing. In our judgment, which is based on experience, accused persons of the type found in this case concentrate their attention almost exclusively upon the substantial facts which appear against them in the evidence of the prosecution witnesses. Without wishing in any way to minimise the importance of pre cision in the framing of charges, so that the accused persons may be apprised, at the earliest stage, of the case which they are required to meet, we consider that the suggestion that accused persons in cases like the present carry in the forefront of their minds throughout their trial, the precise terms of the charges framed against them, and, in presenting their defence, are guided by their conception of the nature of the charge to the exclusion of the evidence which is presented to the Court, is altogether to fanciful and remote from reality to be worthy of acceptance. As has been seen, the' case was of such a nature as to be precisely within the terms of sections 236 and 237, Criminal P. C. Conse 4uently, there was no irregularity committed the prejudicial effect of which we might have felt necessary to estimate."
11. In this case also, the prejudice complained of is more fancied than real and is evident from the facts that Mr. Sayem could not show to us how it had been caused.
12. The next point urged is that the learned Judge while plac ing the evidence of the prosecution witnesses has not placed the inconsistencies in the evidence of some of the witnesses in regard to the prosecution case that Kuddus and Lai Mia were chased by the accused persons and were overtaken in the land of Rajjab Ali. There is no mention of this fact in the F. I. R. which was lodged by P. W.1, nor did he and P.Ws. 5 to 8 mention this to the investigat ing officer. There are as many as 10 eye‑witnesses of the occurrence and, even if the evidence of the above 5 witnesses 'is excluded on the ground of omission to mention this fact earlier, the evidence of the other witnesses remains. This non‑direction, therefore cannot Affect the verdict.
13. The learned Judge at page 43 of the charge has observed as follows :‑
"Now gentlemen, if you hold that the accused persons were in possession of the disputed lands or that the question of posses sion is not free from doubt and that the deceased Kudu Bepari and his son Lal Mia went to forcibly possess the disputed char in possession of the accused persons, then in that case the accused persons must have the right of private defence of pro perty to resist Kudu Bepari and his son. If you hold that the accused persons acted in self‑defence or in defence of the pro perty, then you will consider whether they exceeded their right of private defence of property and person. There is no evidence that Kudu Bepari or his son was armed with zany deadly wea pon. No doubt some injuries were found on the persons of some of the accused. But you will consider whether these in juries were very severe in nature and if a dying man in order to save his own life could not do such injury by snatching away some of the instruments from the hands of the assailants."
The learned Advocate for the appellants has drawn our attention to the concluding portion of the above passage and has contended that this is a third case which has been put to the jury and this has prejudiced the appellants. This is merely an expression of opinion by the learned Judge and in regard to this he has cautioned the jury in the following terms:
"You must remember that you are the sole judges of facts. You are entirely free to form your own independent opinion on such matters. You are not bound to accept the same and you must not hesitate to reject it, if it does not tally with yours ; but you must follow my directions on matters of law, as, in this sphere, my exposition and interpretation are binding on you."
In view of that, we find no substance in this contention of the learned Advocate.
14. It is next pointed out that the direction of the learned Judge in regard to the right of private defence is not satisfactory. On a reference to the charge, however, we find that the learned Judge has rightly pointed out to the jury the precise circumstances under which the right of private defence of both property and person could arise and the circumstances under which it would cease to exist. Pages 37 to 39 of the charge may be referred to in this connection.
15. Another point that has been raised is that the learned Judge has given no direction as to the effect of non‑examination of material witnesses. We have not been told who these material witnesses were apart from the fact that P. W. 20 Kudrat Ali stated in the lower Court that 40 or 50 persons who had no interest in the char were present at the time of the occurrence. The learned Judge, while pointing out that the prosecution witnesses were mostly interested, placed this fact before the jury. The state ment of Kudrat Ali in the lower Court was put in under section 145 of the Evidence Act and in such circumstance we do not think that it was necessary to direct the jury to raise a pre sumption against the prosecution case under illustration (g) of' section 114 of the Evidence Act.
16. Lastly, Mr. Sayem has contended that the defence have been seriously prejudiced as the statements of some of the prosecu tion witnesses recorded under section 161 of the Code of Crimi nal Procedure were not produced at the trial P.W. 23 the investiga ting officer, in cross‑examination stated that he recorded the state ment of the complainant Mahiuddin under section 161 of the Code of Criminal Procedure but that was not with the record. That was taken in Bengali. In the gist of his statement, he did not find him to say which accused struck which accused' (sic) and with what weapons. In the gist there was nothing to show that the deceased were chased to the field of Rajjab Ali. We, however, find on a refer ence to the evidence of P. W. 1 that these contradictions with his statement under section 161 of the Code of Criminal Procedure were brought out. We, therefore, do not find how it can be said that the defence have been prejudiced on account of this. These are all the/ points which have been raised in this appeal and we do not find any substance in any one of them.
17. The appeal, accordingly, is dismissed and we affirm the convictions of the appellants and the sentences passed on them.
ISPAHANI, J.‑I agree.
K. B. A. Appeal dismissed.