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Criminal Appeal No. 23-D of 1959, decided on 13th January 1960.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 13th March, 1959, in Criminal Appeal No. 472 of 1958).

(a) Supreme Court-Criminal appeal-Evidence examined, where High Court had altered conviction from Ss. 395 & 412, P. P. C. to one under S. 448, P. P. C. without adverting to evidence in relation to latter offence.

(b) Criminal Procedure Code (V of 1898), S. 238 (2)-Con viction for minor offence illegal where charge for major offence does not constitute necessarily notice of minor offence-Person charged with Ss. 395 & 412, P. P. C.-Conviction under S. 4.48, P. P. C.-Held, illegal in circumstances of case.

The principle, embodied in section 238 (2), Cr. P. C., that a person may be convicted of a minor offence where he is charged with a major offence and facts are proved which reduce the major offence to a minor offence, applies when the graver charge gives to the accused notice of all the circumstances going to constitute the minor offence, but when this is not so and the circumstances embodying the major charge do not necessarily, and according to the definition of the offence, constitute the minor offence also, the principle no longer applies. Notice of the graver charge does not in such cases necessarily involve notice of all that constitutes the latter offence:

For example entering into a house section (448, P. P. C.) is not a necessary element of the offence of dacoity or receiving the proceeds of dacoity under sections 395 and 412, P. P. C., and the elements of those offences do not include the elements of an offence under section 448.

An offence under section 448, P. P. C. is not a minor offence in relation to the offence of dacoity under section 395 or receiving looted property in a dacoity under section 412, P. P. C.

Conviction under section 448, P. P. C., while the accused were charged only under sections 395 and 412, P. P. C., held illegal and void.

Hamidul Huy Chowdhury, Senior Advocate Supreme Court, (S. A. M. Chowdhury, Advocate Supreme Court with him), instructed by Naimuddin Ahmad, Attorney for Appellants.

M. H. Khondkar, Advocate Supreme Court, instructed by A. N. M. Nasiruddin, Attorney for Respondent.

Date of hearing : 136 January 1960.

. -This is an appeal by special leave of this Court from a judgment and order of the High Court of East Pakistan, Dacca, altering the conviction of the appellants under sections 395 and 412 of the Pakistan Penal Code to one under section 448 of the Code and sentencing the appellant No. 1, Sultan Ahmed, to one year's rigorous imprison ment and a fine of Rs. 500 and others to one year's rigorous imprisonment under the said section. It is against the conviction and sentence under section 448 of the Pakistan Penal Code that this appeal is directed.

On a first information report lodged at 3 p.m. on the 5th August 1957 by one Rangu Mia, a servant of Kazi Abu Taher known as Abu Mia, alleging that on the night between the 3rd and 4th August 1957 at about 1 a.m. some people came to the outer side of the but in the Khamarbari of his master where he was sleeping and called him out to show them the way and when he opened the door he was caught hold of by two or three persons. Just at this time his companion, Muslim, came out of the but and ran towards the west and after that three or four persons similarly caught hold of his companion, Kazi Md. Ismail ; that the strangers after catching hold of the informant and Ismail fastened them with ropes and took them to a Bara Beel at a distance of about two miles to the south west of the house, put them in a boat and took them to a place which looked like an island which they reached in the morning ; that while in the boat from the talks of the men they heard the names of Maqbul and Sultan and while the accused were moving in their house with torch lights he recognised Afsar and Hashu and that his companion Ismail, who accompanied him to the Thana, also recognised Afsar and Hashu at the time of the occurrence ; that at the time he left the house there were four bullocks and other movable properties. He stated that there was a dispute between his master and Maulvi Sultan Ahmed, Pleader, over the lands and the Khamarbari and ended by stating: "So I think that the said Pleader and his brothers are behind this occurrence", and then, he made the statement that there had been delay on his part in lodging the ejahar after coming on foot via Mymensingh.

The Police took up investigation on the basis of this first information report and after collecting the evidence which was offered by the prosecution, submitted a charge-sheet against the appellants and five others under section 395 of the Pakistan Penal Code. After examining 16 witnesses on behalf of the prosecution the Committing Magistrate found as follows :---

"From their evidence I find that the accused persons went upon the Khamarbari armed in order to loot the property of Khamarbari, that out of three men, who were at the Khamarbari, Rangu and Ismail were seized by the accused and removed and left at a distant char, that Muslim somehow ed away and that then the accused looted the Khamarbari by taking away the four heads of bullocks and other articles. From the evidence on record I find that there is a good prima facie case under section 395 of the Pakistan Penal Code made out against the accused persons".

They were tried before the Assistant Sessions Judge with the aid of four assessors where charges under section 412 of the Pakistan Penal Code were added to the charges under section 395 of the Pakistan Penal Code against the appellants. Their defence was that the imputations against them were false ; that Abu Mia had entered into a contract for the conveyance of the Khamarbari and its adjoining lands to the appellant Sultan Ahmed in July 1957 and as part performance of that contract had put him in possession of the same at the time but later having received better offers for the lands he wanted to resile from the contract. The appellant Sultan Ahmed then filed a civil suit for the specific performance of the said contract, being Suit No. 172 of 1957, which was insti tuted a few days before the occurrence, and it was as a counter blast to the civil suit filed by him that this criminal case was concocted against him at the instance of Abu Mia and his servants. The Assistant Sessions Judge disagreeing with all the assessors so far as appellant Sultan Ahmed is concerned, and the majority of the 'assessors so far as appellants Muslim, Chand Mia and Moinuddin are concerned, and two of the assessors so far as appellants Afsar and Hashu are concerned, found that not less than 20 persons being armed with deadly weapons raided the Khamarbari on the night of the occurrence and took away the movables dishonestly. He acquitted four of the accused persons on the charge under section 395 of the Pakistan Penal Code including Abdul Jabbar, who was said by the pro secution to have been actually in possession of the Khamarbarl after the occurrence, acquitted the accused Mir Bux on the charge of dacoity only and convicted the appellants Sultan Ahmed, Afsar and Muslimuddin on both the charges under sections 395 and 412 of the Pakistan Penal Code and the accused Mir Bux under section 412 of the Pakistan Penal Code only and sentenced all of them to rigorous imprisonment for four years and six months, the sentences under the two sections being made to run concurrently. The Assistant Sessions Judge relied so far as the charge of dacoity was concerned on the evidence of P. W. 3 alone against the' appellants Moinuddin and Chand Mia, on the evidence of P. Ws. 1 to 3 and P. Ws. 5 and 6 against the appellants Hashu and Afsar, and against Sultan Armed on the evidence of P. W. 3 and P. Ws. 5 and.6. The present appellants and Mir Bux then appealed against their con victions and sentences to the High Court. The High Court after consideration of the evidence found :----

"On a perusal of the evidence of P. Ws. 1 to 3 it does not appear that any of those witnesses deposed that at the time of the occurrence the miscreants committed any roberry. None of them said a word of robbery being committed on that night. The evidence is that on their return to Khamarbari on Tuesday morning they found the movables and the four heads of cattle missing. That was three days after the occurrence. Thus an important ingredient of the offence of dacoity is lacking in this case . . . There is no evidence that the three heads of cattle were removed by the miscreants on that night."

With regard to the conviction under section 412 of the Pakistan Penal Code the High Court also after discussing the evidence found that the evidence was unreliable and there were no materials to substantiate the same and therefore the High Court finally held that the position was that on the facts the prosecution had failed to establish the offence under sections 395 and 412 of the Pakistan Penal Code and in that view the convictions and sentences under those sections were set aside.

After recording the above finding the High Court, however, proceeded to find out if any offence, other than those for which they had been convicted, had been made out against them by the evidence in the case, with the following observation :-

"The learned Advocate for the State has argued, and in our opinion rightly, that if the evidence be believed, the appellants or at least some of them have committed some offence." .

Then without re-examining the evidence with a view to find out whether the elements of an offence under section 448 of the Pakistan Penal Code had been proved against each appellant before it, the High Court found all of them, except Mir Bux, guilty under section 448 with the following observations :----

"On the facts found, it is clear that the appellants other than Mir Bukhsha have committed an offence punishable under section 448 of the Pakistan Penal Code. They entered the Khamarbari and the lands in possession of Abu Mia through his labourers and officers with instant to commit an offence, namely, wrongful confinement or to intimidate or annoy those persons in possession of such property. There could be no clearer case of criminal trespass as the present. The trouble was over possession of the lands and Khamarbari and after the removal of P. Ws. 1 and 2 the accused Jabbar was put in possession on behalf of Sultan Ahmed . . . . . In con victing and sentencing them under section 448 of the Pakistan Penal Code which is lesser offence it cannot be said that the appellants in any way have been prejudiced."

We are not satisfied with the way in which the case has been dealt with as the High Court has not examined the evidence in relation to the offence under section 448 of the Pakistan Penal Code. In its judgment while dealing with the appeal of the appellants before it against their convictions under sections 395 and 412 of the Pakistan Penal Code, the High Court has observed that there were three important witnesses; namely, P. Ws. 1 to 3, as they were sleeping in the Khamarbari on the night in question. We, therefore, propose to examine the evidence of these witnesses and other witnesses, if any, to find out if a conviction under section 448 of the Pakistan Penal Code is sustainable. P. W. 1 is Rangu Mia, the first informant. His evidence is that he was called out of the but in the Khamarbari where he was sleeping and as soon as he came out, he was caught hold of by two or three persons, and similarly when Ismail, P. W. 2, came out of another hut, he was alto caught hold of by three four persons and that a third person also sleeping, P. W. 3 Muslim, came out at the time and ran away. The two were taken to several places. From there they went to Mymensingh, after which, after consultations with their master's Muktear, P. W. 1 filed a first information report. He stated that while he was being dragged away he saw -the two appellants Afsar and Hashu going towards the cow-shed. P. W. 2 corrobo rated him by stating that he also found Afsar and Hashu to the south of the cow-shed, while he was' being taken away. Both of them stated that the appellant Sultan Ahmed was not in possession of the Khamarbari before the occurrence and P. W. 2 stated that after the occurrence it was in possession of appellant Sultan Ahmed and he possessed it through his own man and inducted one Abdul Jabbar in the Khamarbari. He also stated: "There was discussion with Abu Mea and Muktear Babu as to what is to be stated in F, I. R." The said Abdul Jabbar, it may be noted, was acquitted by the Court of Session. P. W. 3, Muslim, stated that when he was running away from the Khamarbari he saw the appellant Sultan Ahmed sitting in the house of one Abbas with a cane or lathi in his hand, which is about 50 yards from the place of occurrence, and that in the Khamar he recognised Afsar, Hashu and Mukhles. The last man was acquitted by the Assistant Sessions Judge. Then after running out of the Khamarbari he wandered about and went to four or five persons, one of them was P. W. 5 Aftabuddin Munshi, and then he returned to the Khamarbari and heard some whispering sound in the northern but and went towards it and on going up to the Verandah he was caught hold of by appellants Sultan Ahmed, Moinuddin, Muslim and Chand Mia, who took him to the house of Sultan Ahmed, which is about 200 yards from the Khamarbari, and there he was kept confined in a but till the latter part of the night when, like P. W. 1 and P. W. 2, he was taken to a place Trishal Bazar and left there, from where he walked on foot and went to Mymensingh to the house of Muktear. In cross-examination he stated that in the yard of the Khamarbari, when P. W. 1 was taken away, he recognised appellants Afsar and Hashu. P. W. 5, who was examined to corroborate this witness, stated that when after midnight P. W. 3 Muslim went to him, he stated to him that he had recognised the appellants Sultan Ahmed, Afsar and Hashu, but according to P. W. 3 himself, before he left the Khamarbari and went to this witness he had recognised Afsar and Hashu only and 'it was after he had slipped away from the house of this witness P. W. 5, that he saw Sultan Ahmed, appellant, in the Verandah of the Khamarbari, from where he was taken away to his house. These are the witnesses, who have implicated the appellants as having taken part in the occurrence and posed as eye-witnesses. According to the evidence of P. Ws. 1 and 2, the appellant Sultan Ahmed was not named as being at the scene of the occurrence. Both of them named two of the appellants. Afsar and Hashu, but they were only .seen going towards the cow-shed. None of them saw any of the appellants entering any but in the Khamarbari. P. W. 3 is the only witness who says that he heard some whispering sound in but found the four appellants including Sultan Ahmed named by him in the Verandah not inside any hut, but this was only when aft6r running away and meeting several persons he quietly came back alone, according to his statement, to just see these persons outside the huts.

In this he is not corroborated by any other witness and he is not supported in his statement that he came back to the Khamarbari that night, which is highly improbable. Entry into any of the huts by any of the appellants has therefore not been proved. The High Court did not also properly consider the two days' delay in lodging the first information report in the light of the statement of P. W. 2 that there .was discussion with Abu Mia, the real complainant, and his Mukhtear as to what was, to be stated in the F. I. R.' At the hearing of this appeal we were shown a copy of a judgment of the Subordinate Judge, First. Court, Mymensingh, dated the 14th December 1959, in Suit No. 172 of 1957 brought by the appellant Sultan Ahmed for a specific performance of contract against the complainant Abu Mia asserting that he was put in possession of the Khamarbari at a date before the date of the alleged occurrence by Abu Mia in part performance of the contract. By that judgment the Subordinate Judge decreed the plaintiff's suit holding, that the appellant Sultan Ahmed was in possession of the huts and disbelieving the defendant Abu Mia's case. This fact was not denied by the Advocate for the respondent. We, therefore, find that there was no sufficient and reliable evidence to support the conviction under section 448 of the Pakistan Penal Code.

Now we come to the legal aspect of the matter of conviction under section 448 of the Pakistan Penal Code, under which the appellants were not charged. . A person cannot be convicted of an offence, with which he was not charged, unless the case comes under section 237 or section 238 of the Code of Criminal Procedure, and the latter section has apparently been held by the High Court to govern the present case. For our purpose, subsections (1) and (2) of section 238 are material, which are as follows;---

"(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which consti tutes a complete minor offence, and such combination is proved, but the remaining particulars are' not proved, he may be convicted of the. minor offence, though he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."

This is so, when the graver charge gives to the accused notice of all the circumstances going to constitute the minor offence, but when this is not so and the circumstances embodying the major charge do not necessarily, and according to the definition of the offence, constitute the minor offence also, the principle no longer applies. Notice of the graver charge does not in such cases necessarily involve notice of all that constitutes the latter offence. Entering into a house is not a necessary element of the offence of dacoity or receiving .the proceeds of dacoity under sections 395 and 412 of the Pakistan Penal Code, and the elements of those offences do not include the elements of an offence under section 40 of the Paklstau Penal Code. In this case, even, if entry were proved, a charge framed under section 448 would have given an opportunity to the appellants to explain their presence for an innocent purpose at the time of the occurrence. For example, Sultan Ahmed, appellant, who is a close neighbour, might very well say that on hearing a row at mid-night in the neighbouring house he came to see what had happened and thus was present in the outer Verandah of the house. We hold that an offence under section 448 of the Pakistan Penal Code is riots a minor offence in relation to the offence of dacoity under section 395 or receiving tooted property in a dacoity under section 412 of the Pakistan Penal Code and that the conviction of these appellants for the former offence without their being charged with it are illegal and void. The High Court of Calcutta held the same view in the case of Meher Sheikh v. Emperor (1932 1 L R .59 Cal. 8) when it laid down that offences under sections 448 and 323 of the Indian Penal Code cannot be said to be minor offences necessarily involved in a charge under section 395. The appeal is, therefore, allowed, the convictions of the appellants are set aside' and their bail bonds cancelled.

A. H. Appeal allowed.

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