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Criminal Appeal No. 974 of 1958, decided on 16th October 1959.
Prosecution not bound to prove collateral fact deposed to by prosecution witness.
Ss. 236 and 237‑ Accused convicted under S. 302 or 304, P. P. C.‑Conviction may be altered in appeal to one under S. 304‑A, P. P. C.
Held, that in view of the provisions of sections 236 and 237, Cr. P. C. it is permissible to alter a conviction from section 302 or 304 of the Penal Code to one under section 304‑A of the same Code.
The charge against the accused under section 302, P. P. C., was that he had committed the murders of two persons by running them over by his truck while they were sleeping on their charpoys on the pavement of the road: The accused was convicted under section 304 Part II and sentenced to 7 years' rigorous imprisonment.
Held, that on the facts alleged by the prosecution, there was an element of doubt as to whether the accused had committed an offence under section 302, 304 or 304‑A P. P. C. and in view of this, by virtue of section 236 of the Code of Criminal Procedure, he could have been charged with having committed all or any of such offences, or he could have been charged in the alternative with having committed soiree one of said offences. Consequently, by virtue of section 237 of the Code of Criminal Procedure he could be convicted under section 304‑A, P. P. C, although he was not specifically charged with that offence.
The question of prejudice or failure of justice did not arise in a case of this nature, because the Court was legally entitled to convict the accused of an offence disclosed in the evidence although he was not charged with it. In the present case the accused knew very well at his trial, what evidence he had to meet, and, therefore, the suggestion of prejudice on account of the omission of the specific charge under section 304‑A, could not be accepted.
Muhammad Anwar and another v. The State P L D 1956 S C (Pak.) 440 ; Begu v. King Emperor A I R 1925 P C 130 ; Gurdev Singh v. Emperor A I R 1941 Lah. 459 ; Emperor v. Ramawa Chennappa 16 Cr. L J 305 and Emperor v. Charles John Walker A I R 1924 Bom. 450 ref.
Ahmad Din v. State P L ID 1959 Lah. 760 dissented from.
B. A. Jeremy for Appellant.
Malik Shaukat All for A.‑G. for Respondent.
Dates of hearing : 2nd and 9th October 1959.
Amir Bakhsh, aged 32 years, was tried by the learned Sessions Judge of Multan, on a charge under section 302, P. P. C. for having committed the murders of Fazal Din and Allah Bakhsh by running them over by his truck No. FPK‑432 while they were sleeping on their charpoys on the pavement of the road in Multan City. The learned Sessions Judge found him guilty under section 304, Part II, P. P: C. and sentenced him to undergo seven years' rigorous imprisonment. The convict has appealed against his conviction and sentence.
2. The facts of the case are briefly as follows :‑
Muhammad Sadiq (P. W. 10) is the owner of truck No. FPK‑432 and Amir Bakhsh accused was his driver. On the 14th of May 1958, Muhammad Sadiq P. W. loaded the goods of Nur Muhammad (P. W. 12) in his truck at Uch Sharif, District Bahawalpur. The goods had to be carried to Multan. As Muhammad Sadiq P. W. knew driving himself, he drove the truck from Uch Sharif to Multan. Nur Muhammad P. W. sat on the front seat with Muhammad Sadiq P. W. and the accused and Wahid Bakhsh Cleaner (P. W. 13) sat inside the truck. The truck reached Multan City at about 2 a.m. and it was stopped at Sabzi Mandi. On the way Muhammad Sadiq had also loaded some melons of a trader from Shehr Sultan. These melons were unloaded at Sabzi Mandi. Muhammad Sadiq P. W. got down from the truck and, after giving instructions to the accused regarding the unloading of the goods of Nur Muhammad at his godown, left for the Royal Hotel to spend the remaining part of the night there. The accused then sat at the wheel and Nur Muhammad P. W. remained sitting on the front seat. The accused drove the truck at a fast speed towards Lohari Gate where the goods of Nur Muhammad had to be unloaded and when it reached the main road, Nur Muhammad cautioned him by saying that there were some cots lying on the pavement of the road and he was going to run them over. The accused replied that he knew his job and was responsible for the driving. As soon as the truck reached the road leading from Sabzi Mandi to Chowk Bohar Gate, the truck struck against the charpoy on which Mahmood (P. W. 14) was sleeping. He jumped out and stood on the platform of the adjacent shop and shouted that the truck may be stopped at once. Nur Muhammad and Wahid Bakhsh P. Ws. also raised an alarm but the accused took no notice of it and drove on and smashed the next two charpoys on which Fazal Din and Allah Bakhsh deceased were sleeping. The accused did not stop the truck after the incident and proceeded further. Nur Muhammad and Wahid Bakhsh P. Ws. felt apprehensive of their lives and they jumped down from the truck. They, however, ran after the truck and soon overtook it. The truck was stopped in front of the Police Post Bohar Gate just for a while. Nur Muhammad P. W. asked the accused to drive the truck towards the godown where the goods had to be unloaded and on reaching there the accused asked Nur Muhammad that the goods should be unloaded within two minutes. While Nur Muhammad was making arrangement to unload the goods the accused drove away the truck after telling Nur Muhammad that his goods would reach him on the following day. The accused then drove the truck to the Adda and left it there. In the meantime, Mahmood (P. W. 14) went to the house of Bashir Ahmad (P. W. 9), son of Fazal Din deceased, and informed him about the occurrence. Bashir Ahmad P. W. came to the spot and found his father and his maternal uncle, Allah Bakhsh, lying dead on their charpoys. He went to the Police Post Bohar Gate and lodged the report Exh. P. C. which was recorded by Nawab Din A. S. I. (P. W. 16) at 4 a.m. The report was sent to the Police Station Haram Gate for registration of the case. Nawab Din A. S. I. then went to the spot and after preparing the injury statements and inquest reports of the two deceased he sent the dead bodies for post‑mortem examination. He took into possession the three broken charpoys, Exhs. P. 1 to P. 3, and also some bloodstained earth from the spot. On the following. morning, the truck was found at the Adda by Abdur Rashid (P. W. 11) and one Ali Husain. They took the accused and the truck to the police station where the truck was taken into possession by Malik Ahmad Khan, Sub‑Inspector (P. W. 17). The Sub‑Inspector got the truck tested by Mr. Manual, the then Traffic Sergeant who made the report Exh. P. O. that the vehicle was perfectly in order. After investigation, the accused was sent up for trial.
3. Doctor S. M. Sleem (P. W. 1) performed the post mortem examination on the dead bodies of Fazal Din and Allah Bakhsh and found a number of injuries on their bodies. In the case of Fazal Din, the doctor expressed the opinion that the death was due to shock by multiple fractures of the ribs and the rupture of the scrotal sack. In the case of Allah Bakhsh deceased, the doctor expressed the opinion that the death was due to the compression of the brain and the fracture of the ribs.
4. At the trial, eighteen witnesses were examined in support of the prosecution case. The defence was a complete denial of the case made by the prosecution. The accused pleaded that at the time of the occurrence, the truck was being driven by Muhammad Sadiq P. W. and he himself was sleeping in the truck because he was running temperature. He further alleged that in order to save himself, Muhammad Sadiq P. W. had falsely involved him in this case. He, however, did not call any witness in his defence. The learned Sessions Judge believed the prose cution evidence and convicted the appellant as mentioned above.
5. The learned counsel for the appellant has argued that it was not established beyond doubt that the appellant was driving the truck at the time of the occurrence. The relevant evidence on this point is that of Muhammad Sadiq (P. W. 10), Nur Muhammad (P. W. 12), and Wahid Bakhsh (P. W. 13). According to Muhammad Sadiq he had got down from the truck at the Sabzi Mandi and had given directions to the accused to sit drive the truck to the godown of Nur Muhammad P. W. where his goods had to be unloaded. This witness admitted in his cross examination that he did not book any room in the hotel and that his name was not entered in the hotel‑register. He, however, claimed that his two friends from Dera Ismail Khan had booked a room in the hotel and he had taken a cot from the hotel and had slept where his friends were sleeping. The learned counsel for the appellant has argued that no one from the hotel has been produced to support the version given by Muhammad Sadiq P. W. In my opinion, the prosecution was not bound to A produce any witness from the hotel in this connection as it was merely a collateral fact and if the accused wished to prove the Muhammad Sadiq had not visited the hotel at all on the night in question, he should have called some witness from the hotel to disprove the fact. However the evidence of Muhammad Sadiq P. W. does not stand alone on this point because he is fully supported by Nur Muhammad and Wahid Bakhsh P. Ws. who have definitely stated that Muhammad Sadiq P. W. had left the truck at the Sabzi Mandi and had gone to the hotel. I see no reason to reject their testimony. Another point, which has been urged by the learned counsel for the appellant is that if the accused was not running temperature then there is no reason why Muhammad Sadiq should have driven the truck from Uch Sharif to Multan. The learned Sessions Judge has explained that as owner of the truck Muhammad Sadiq did not like to sit inside the loaded truck and as he knew driving he drove the truck himself, and he also did not want his customer Nur Muhammad to be seated inside the loaded truck, and allowed him to occupy the front seat. There is nothing unnatural or improbable about it. It is in evidence that Nur Muhammad P. W. had loaded bundles of raw hides in the truck which must have been stinking. It is, therefore, not surprising that the owner of the truck and Nur Muhammad P. W. took their seats in front and the driver and the cleaner sat inside the truck. Learned counsel has further urged that the godown of Nur Muhammad P. W. was not far off from Sabzi Mandi and, therefore, Muhammad Sadiq himself could have driven the truck to the godown. This argument loses sight of the fact that Muhammad Sadiq had driven the truck right from 6 p.m. to 2‑30 a.m. and as some melons had to be unloaded at Sabzi Mandi he immediately left the truck for rest and sleep. I am, therefore, satisfied that Muhammad Sadiq P. W. was not in the truck at the time of the occurrence.
6. Nur Muhammad and Wahid Bakhsh P. Ws. have definitely alleged that it was the appellant who was driving the truck at the time of the occurrence. Nur Muhammad P. W. is a completely disinterested witness. Though Wahid Bakhsh P. W. was a cleaner of the truck and was an employee of Muhammad Sadiq at the time of the occurrence but he had left his service at the time when he appeared as a witness at the trial. Nothing has been elicited in their cross‑examination to show that these witnesses could have falsely implicated the accused. The only point which the learned counsel for the appellant could urge was that it was admitted by Wahid Bakhsh P. W. that he and Nur Muhammad had been taken to the police station on the following morning by Muhammad Sadiq P. W. This was but natural because after the occurrence these two persons must have contacted the owner of the truck and if he took them to the police station, it does not reflect in any manner on the testimony of these two witnesses. It is, therefore, established beyond doubt that the appellant was driving the truck at the time of the occurrence.
7. Learned counsel for the appellant has strenuously urged that on the facts established on the record, no offence is made out against the appellant under section 304 Part 11, P. P. C. The appellant was driving the truck at about 2‑30 a.m. and was passing through one of the main roads of Multan. The question is whether it can be reasonably attributed to the appellant that he had the knowledge that his act was likely to cause the death of some persons. There is no evidence to show that the appellant knew beforehand that some persons would be sleeping on their charpoys in front of their shops by the side of the road. And although from the plan of the spot, Exh. P. J/1, it is clear that he could have seen the charpoys from some distance, yet I have grave doubts if the accused had the requisite knowledge that his act in driving the truck at a fast speed was likely to cause the death of some persons. In this view of the matter, the conviction of the appellant under section 304, Part II, P. P. C. cannot be upheld.
8. The question, however, arises whether on the facts established on the record the accused can be convicted by this Court under section 304‑A, P. P. C. Learned counsel for the appellant concedes that on the facts proved on the record the appellant can be held liable under section 304‑A, P. P. C. but he relies very strongly on a recent judgment of this Court reported as Ahmad Din v. State (P L D 1959 Lah. 760), where it has been held by Sajjad Abmad Jan, J. that a person charged under section 302, P. P. C. cannot be convicted under section 304‑A, P. P. C.
9. Before discussing this aspect of the matter I would like to consider the question whether on merits the accused can be held liable for an offence under section 304‑A, P. P. C. Nur Muhammad and Wahid Bakhsh P. Ws. have clearly stated that the accused was driving the truck at a fast speed and they had cautioned him that there were some charpoys on the pavement of the road and he was going to run them over. The accused, however, replied that he knew his job, but soon thereafter he struck against the charpoy of Mahmood (P. W. 14) and he also raised an alarm and asked the driver to stop the truck. He took no notice of this warning and drove on and smashed the other two charpoys on which Fazal Din and Allah Bakhsh deceased were sleeping. These two persons were run over by the truck and died instantaneously. The driver did not stop the truck and went on to the Adda. It is clear from the report of Mr. Manual that the truck was in a good condition and had no mechanical defect. The whereabouts of Mr. Manual could not be ascertained at the time of the trial and his statement made before the Committing Magistrate was admitted in evidence under section 33 of the Evidence Act. It is not the case of the accused that there was any mechanical defect in the truck. The plan of the spot, Exh. P. J/1, shows that the truck came from the south west side of the place of occurrence and the direction the 'truck had taken is marked as A‑B' on the plan in red pencil. The width of the road at the spot is about 37.3 feet and the width of the metalled road itself is 17 feet. It further shows that on each side of the metalled road there is a space of about ten feet in width. This according to Allah Bakhsh Photographer (P. W. 5) constitutes the pavement and is laid with bricks. The charpoys of the two deceased and Mahmood P. W. were lying on the pavement on the right side of the road at a distance of about 3 or 4 feet from the end of the metalled road. The driver of the truck could have seen the charpoys from a distance of more than 100 feet and if the truck was not running at a fast speed he could have easily stopped the truck. According to the report of Mr. Manual, the foot‑brake was in an excellent condition but it appears that the driver of the truck did not care to apply the brake at all. It is also clear that instead of turning towards the left side of the road, i.e, on his own correct side, he crossed the road and went towards its right side and struck against the charpoys. He should have taken the necessary precautions, and should have kept the truck under his control. The suggestion that he had fever on the day of the occurrence is not borne out by the record. There is nothing to support this allegation apart from the appellant's own statement. Muhammad Sadiq P. W. has positively stated that he had no fever on that day. On a consideration of the entire evidence on the record the inference is irresistible that the appellant was driving the truck rashly and negligently, as a result of which he ran over Fazal Din and Allah Bakhsh deceased and caused their death instantaneously. He is, therefore, clearly liable under section 304‑A, P. P. C.
10. The question which now remains to be considered is whether this Court can convict the appellant under section 304‑A, P. P. C. I have carefully gone through the judgment of Mr. Sajjad Ahmad Jan, J. In that case what happened was that two persons were committed for trial under section 302, read with section 34 of the Pakistan Penal Code. The learned Sessions Judge acquitted one of the accused but convicted Ahmad Din accused under section 304‑A, P. P. C. From the facts of the case given in the judgment it appears that one Ghulam Ahmad was knocked down by a car. After investigation, Ahmad Din accused was sent up for trial under section 304‑A, P. P. C. but later Ahmad Din and four others were challaned under sections 302, 120‑B and 109/34, P. P. C. On an inquiry held by the Committing Magistrate the story of conspiracy was disbelieved and three persons were discharged and Ahmad Din and Ata Husain were committed for trial under section 302/34, P. P. C. Unfortunately the particulars of the charge are not mentioned in the judgment and it is not known whether it was laid down in the charge that Ahmad Din had knocked the deceased while driving the car. It is, therefore, difficult for me to judge whether the provisions of sections 236 and 237 of the Code of Criminal Procedure could have been applied to the facts of that case. The learned Judge, however, came to the conclusion that sections 236 and 237 had no relevancy to the case. If the learned Judge, intended to lay down that in no case a person who is charged under section 3J2, P. P. C., can be convicted under section 304‑A, P. P. C. then with the profoundest respect venture to dissent from that view. It is true that the general rule is that an accused person cannot be convicted of an offence of which he was not charged, but sections 237 and 238 of the Code of Criminal Procedure provide two exceptions to the above rule. If the case is covered by any of these two exceptions, then an accused person can be convicted of an offence although he was not charged with it. Sections 236 and 237 read as follows :‑-
"236. If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of the said offences.
237. If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be con victed of the offence which he is shown to have committed, although he was not charged with it."
In view of these provisions, I think it is permissible to alter a conviction from section 302 or 304 of the Penal Code to one under section 304‑A of the same Code.
11. There is ample authority for the view that a person charged under section 302 of the Pakistan Penal Code can be convicted under section 304‑A of the Penal Code. In Gurdev Singh v. Emperor (A I R 1941 Lah. 459), a Division Bench of the Lahore High Court consisting of Young, C. J. and Sale, J. altered the conviction of Gurdev Singh from section 302, I. P. C. to section 304‑A I. P. C. Briefly, the facts of that case were that Gurdev Singh was driving a lorry on the Grand Trunk Road from Delhi in the direction of Panipat. He had five passengers more than he was permitted to carry in the lorry. He was signalled by a Sub‑Inspector of Police to stop his lorry so that it might be checked. He refused to stop and drove on. The Sub‑Inspector chased the lorry in a motor car. The chase proceeded for five miles but the lorry driver refused to allow the police car to pass his lorry. The lorry‑driver obviously wished to escape. When the lorry came near a bridge, a small girl, aged 3J years, commenced to cross the road in order to get to her father who was washing clothes on the opposite side of the road. The lorry‑driver could not stop the lorry as he was going very fast. The result was that the unfortunate child was hit by the bumper of the lorry and knocked down. The accused drove on, but was eventually arrested by the pursuing police party. It was alleged that at the time of his arrest he was smelling of liquor. The medical evidence also disclosed that he had a slight stagger. On these facts, the accused was sent up for trial under section 302, I. P. C. and was convicted of that offence on the ground that he knew that the act he was doing was so imminently dangerous that it must, in all probability, cause death. The learned Judges observed as follows :‑
"It is possible that the driving of heavy vehicle at a high speed in a crowded place like the city might result in a charge under section 304, or even under section 302, Penal Code, but it would be impossible under the circumstances of this case to bring the offence under either of these sections. We think that the offence clearly comes within section 304‑A, Penal Code, as the appellant under all the circumstances of the case has certainly committed a rash and negligent act not amounting to culpable homicide."
It is true that the learned Judges did not refer to the provisions of sections 236 and 237 of the Code of Criminal Procedure in altering the conviction from section 302 to section 304‑A, Penal Code, but I cannot believe for a moment that‑these provisions were not present to the mind of the learned Judges. I think that the learned Judges were so sure of the proposition that they did not deem it necessary to refer to these sections. In Emperor v. Ramawa Chennappa (16 Cr. L J 305), a Division Bench of the Bombay High Court held that the High Court was competent by virtue of sections 236 and 237 of the Code of Criminal Procedure to record a conviction under section 304‑A in a case where a person was charged under section 302, 1. P. C. That was a case in which some arsenic poison had been given by the wife to her husband, as a result of which he had died. At the trial, the jury had given a verdict that the woman was not guilty of any offence whatever and the Sessions Judge finding himself unable to accept this verdict had referred the case to the High Court under section 307 of the Code of Criminal Procedure. This ruling was approved by another Bench of the Bombay High Court in Emperor v. Charles John Walker (A I R 1924 Bom. 450). These provisions of law were also considered by their Lordships of the Supreme Court of Pakistan in Muhammad Anwar and another v. The State (P L D 1956 S C (Pak.) 440). In that case six accused were charged under section 302/ 149, P. P. C. but four of them were acquitted and only two of the accused were convicted under section 302, P. P. C. On behalf of the appellants it was contended before their Lordships that no specific charge had been framed against the convicts under section 302, P. P. C., therefore, they had been prejudiced in the trial. Their Lordships repelled this contention and held that there was in the case an element of doubt of the kind mentioned under section 236 of the Code of Criminal Procedure and that the case, therefore, fell within the principal enunciated in section 237 of the same Code. Their Lordships further held that no prejudice had been caused to the accused at their trial and the appeal was accordingly dismissed. The law on this matter was first dealt with by their Lordships of the Privy Council many years ago in Begu v. King Emperor (A IR 1925 P C 130). In that case five accused were committed for trial at the Sessions Court on a charge of murder under section 302, I. P. C. The learned Sessions Judge convicted two of the accused under section 302, 1. P. C. and the remaining three accused under section 201, I. P. C. Their convictions were affirmed by the High Court. On an appeal before the Privy Council, by special leave, an objection was raised that the three appellants could not have been convicted under section 201, I. P. C., as they had been charged only under section 302, I. P. C. Their Lordships considered the effect of sections 236 and 237 of the Code of Criminal Procedure and observed as follows :‑
"A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. That is what happened here. The three men who were sentenced to rigorous imprisonment were convicted of making away with the evidence of the crime by assisting in taking away the body. They were not charged with that formally, but they were tried on evidence which brings the case under section 237.
Their Lordships entertain no doubt that the procedure was a proper procedure and one warranted by the Code of Criminal Procedure."
The rule enunciated in this ruling has since been applied by the various High Courts of India and Pakistan to different sets of circumstances.
12. In the light of the above‑mentioned authorities and in view of the provisions of sections 236 and 237 of the Code of Criminal Procedure, I have no doubt in my mind that on the facts of the present case the conviction of the appellant can be altered from section 304, Part 11, P. P. C. to section 304‑A, P. P. C. The charge against the accused was, as pointed out earlier, that he had committed the murders of Fazal Din and Allah Bakhsh by running them over by his truck No. FPK‑432 while they were sleeping on their charpoys on the pavement of the road. In my opinion, on the facts alleged by the prosecution, there was an element of doubt as to whether the accused had committed an offence under sections 302, 304, or 304‑A, P. P. C. and in view of this, by virtue of section 236 of the Code of Criminal Procedure, he could have been charged with having committed all or any of C such offences, or he could have been charged in the alternative with having committed some one of said offences. Consequently, by virtue of section 237 of the Code of Criminal Procedure, he can be convicted under section 304‑A, P. P. C. although he was not specifically charged with that offence. The question of prejudice or failure of justice does not arise in a case of this nature, because the Court is legally entitled to convict the accused of an offence disclosed in the evidence although he was not charged with it. I am satisfied that in the present case the accused knew very well at his trial, what evidence he had to meet, and, therefore, the suggestion of prejudice on account of the omission of the specific charge under section 304‑A cannot be accepted.
13. For the reasons stated above, I set aside the conviction and sentence under section 304, 11, P, P, C. and convict the appellant under section 304‑A, P. P. C. In my opinion, it is as bad a case as can well be conceived and merits severe punishment. I accordingly sentence him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,000, or in default to undergo further rigorous imprisonment for a period of six months. The fine, if realised, may be given to the heirs of the two deceased in equal shares, as compensation.
A.H. Conviction altered.
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