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Criminal Appeal Nos. 591 and 597 of 1960, decided on 26th January 1962.
in discharging duty not to take law into his own hands and punish offender.
Queen Empress v. Latif Khan I L R 20 Bom. 394 ref.
Ss. 32 & 33‑Person, by virtue of his official rank, in position to prevent assault being com mitted Standing by and failing to intervene‑Equally guilty.
S. 197‑Public servant taking law into his own hand and punishing person for act of indiscretion committed by him‑Lodging prosecution against public servant for such act‑Sanction under section 197 not necessary.
Syed Ahmed v. The State P L D 1958 S C (Pak.) 27 ref:
Muhammad Fazlul Karim, Hamidul Haq Chowdhury, A. M. Abdullah and S. A. Haq for Appellants.
Abdul Hakim, Deputy Legal Remembrancer for the State.
These two appeals one by Muhammad Hedayet ullah, an Inspector of Land Customs and Central Excise and another by Muhammad Shahid, Custom Sepoy arise out of their conviction under section 325/34 of the Pakistan Penal Code by the Sessions Judge of Rajshahi.
2. They along with one Sheikh Nurul Huda were placed on trial on a charge under section 304/334 of the Pakistan Penal Code. The trial was held with the aid of four assessors. Three of them found both the appellants guilty under section 325/34. The 4th assessor opined that appellant Hedayetullah was not guilty and Shahid was guilty under section 325/34 of the Code. All of them unanimously found accused Shaikh Nurul Huda not guilty.
3. The prosecution allegations against the appellants may be summarised as follows :‑
On 27th December 1959, Santiranjan Das, the deceased came to Rohanpur for going over to Maldha (India). While crossing the border at about 5 P. M. he was arrested by the accused persons as he was found to take away with him one hundred‑rupee Pak currency note. He was brought to the Customs Office and while Hedayetullah was preparing the seizure report Santiranjan Das stood in front of the table. About that time Santiranjan took up the hundred‑rupee note from the table, swallowed it up and then tried to escape but was caught hold of. It is said that in order to make him vomit out the note hot saline water was applied to him but it proved unsuccessful. Other attempts were also made to bring out the note from his stomach but to no result. He was placed on a bullock‑cart and carried to Gomastapur Police Station. Hedayetulla and Shahid followed the cart and after having reached the Police Station Hedayetullah lodged a first information report alleging that Santiranjan was trying to smuggle out of Pakistan a hundred‑rupee note. The Officer‑in‑charge of the Police Station, however, grew suspicious and went to the bullock cart to examine Santiranjan Das and to his utter surprise found that Sanitarian was lying dead within the bullock cart. He called P. W. 7 Dr. Md. Abul Hossain and on examination he also opined that Santiranjan was already dead. The written information that was handed over to the Officer‑in Charge by Hedayetullah was then taken back by him and he then submitted another information stating that Santiranjan had expired on the way to the Police Station near Bhanga bridge. The Officer‑in‑charge held inquest on the dead body of Santiranjan and sent it to P. W. 3 Dr. Md. Afzal Hossain for post mortem examination.
4. The defence taken in this case that Santiranjan Das while crossing the border was arrested with one hundred‑rupee Pak currency note. He was brought to the Customs Office and while Hedayetullah was engaged in preparing a seizure report Santiran jan stood before him. The note was on the table, and Santiranjan took up it from the table, swallowed it up and tried to escape but was caught hold of. On the suggestion of P. W. 4 Md. Yunus Ali hot saline water was applied to him but he did not vomit the note or any fragment of it. All other attempts made to bring out the note failed. It has further been suggested that while Santiranjan tried to escape after swallowing up the note he stumbled on the framework of the door of the Customs Office and thereby sustained an injury on his head. In course of arrest he fell down on some brickbats and thereby sustained some other injuries.
5. The prosecution, in this case, has examined two witnesses who claimed that they had seen Shahid to assault Santiranjan Das. They are P. W. 1 Sekander Ali and P. W. 2 Tofazzal Huq. The evidence of P. W. 1 is that on the 27th December 1959 in the evening he was going to Rohanpur Railway Station to receive his brother who had gone to Nacholahat. He found one man tied up with a post of the verandah of the Customs Office. Accused Sayed Ahmed, (by which he meant Shahid) asked that man if he had swallowed up one hundred- rupee note. The man answered in the negative whereupon accused Shahid gave him two slaps. At that time the Customs Inspector Md. Hedayetullah was present. The witness then left for the station. In cross‑examination the witness had stated that he had no light with him when he was going to the station. It was then dark. The man was tied up with a post in the southern verandah and in front of the verandah there is some open space thereafter there is a spit bamboo fencing up to chest height. There is a door in that fencing and it is in the eastern part. The verandah may be 15 or 16 cubits in length. There are two rooms in the main Office. The eastern room is the Office of the Inspector. Each room has got a door. The door of the eastern room is in the middle portion of that room. The post with which that man was tied up is on the western side of the door but outside that room. He has further stated that the Inspector at the time of assault was standing facing north before a table. The witness could not mention on which part of the body the slaps fell. It has been stated by this witness that he was a member of the Robanpur Union Board and he knows Pramananda Pandit who is a well‑to‑do man. Pramananda was the President of the Rohanpur Union for nearly 15 or 16 years. He was not a member of the Union Board during the witness's time. The witness was examined by the Investigating Officer at the chamber of the Pramananda. P. W. 2 Tofazzal was also there at that time. P. W. Tofazzal Huq's evidence is that on a Sunday at about Mugrib prayer time he was proceeding towards the rice mill near the Rohanpur Railway Station from Rohanpur Bazar to realise cart hire charges from Reajuddin Sarker, who was then in-charge of the rice‑mill. He found a man tied up with post in the southern verandah of the Customs Office. He found the Custom Inspector standing within the office near the door. He found accused Shahid fisting and kicking that man. The accused Shahid had then shoe in his wearing. While assaulting the accused Shahid said to that man that he had swallowed up a hundred‑rupee note. It appears that in the committing Court his statement, which has been put in under section 288 of the Code of Criminal Procedure, was that the Inspector and Shahid both demanded one hundred- rupee note from the man who was assaulted alleging that he had swallowed it up. In cross‑examination this witness has stated that Shahid gave two kicks at the back of that man and fisted him on his face. The man kept silent. The witness has denied the suggestion that he was deposing at the instance of Pramananda and that he took any loan from him.
6. The evidence of these two witnesses has been attacked as unbelievable and Mr. Hamidul Haq Chowdhury appearing for Hedayetullah has further urged that it does not establish any guilt of Hedayetullah. It has been contended that these witnesses have deposed under the influence of Pramananda and when the Prosecution has not examined the shop keeper and the other persons who were admittedly present at the time of the alleged assault the evidence of these chance witnesses cannot be considered a safe basis for conviction.
7. It is true that the defence has succeeded in showing that there were shop keepers nearby and other persons present at the time when the alleged assault on Santiranjan took place. It appears from the order sheet of the Sessions Court that on the 8th August 1960, the Public Prosecutor filed a petition in Court stating that he would not examine some more witnesses who were present on that day as out of those witnesses two were declared hostile in the committing Court and it was found that the rest of the prosecution witnesses who were present on that day were not witnesses of truth and were deliberately trying to conceal and manipulate truth to assist the accused. In these circumstances the Public Prosecutor prayed that these witnesses should be discharged if not wanted by the accused to be examined as defence witnesses. The defence pleader intimated that he would not examine them as defence witnesses. The learned Judge, therefore, discharged these witnesses.
8. Hedayetullah is a Customs officer and as such a man of considerable influence. We nave given our anxious consideration to the question of non‑examination of these witnesses and some others who were admitted by some of the prosecution witnesses to have been present at the time of occurrence. In the fact and circumstances of this case we do not think that non‑examination of these witnesses raises any suspicion about the truth of the evidence of P. Ws. 1 and 2. They do not appear at all to be interested in the prosecution case and we are not prepared to give any importance to the suggestion by the defence that they have deposed at the instance of Pramananda Pandit. Their connection with Pramananda has not been established and we do not see why at his instance these witnesses will take their oath to depose falsely against Hedayetullah and Shahid. We accept their evidence and hold that they saw the assault by Shahid on the deceased as it has not been contended or challenged that if they saw the assault on that day, it was on any person other than the deceased. It is admitted that the deceased was taken in custody sometime before the time of assault and continued to remain in custody until his dead body was produced before the Investigating Officer. The fact that he was kept tied up has not at all been challenged.
P.W. 4 Md. Yunus Ali is a local doctor who has stated that he was sent for through the acquitted accused Nurul Huda. He came to the Customs Office and Inspector Hedayetullah asked him how the note which had been swallowed up by Santiranjan Das could be brought out from his stomach. He then advised him to send Santiranjan to Rajshahi Sadar Hospital for having it out from the stomach but the Inspector said that there was no train available for carrying him to Rajshahi. He then asked the Inspector to take Santiranjan to Gomastapur thana charitable dispensary as there might be apparatus there. Accused Shahid then suggested if hot water with salt was applied he might vomit, whereupon the witness told him that he had no experience of it. He found Santiranjan in the verandah of the Customs Office tied up with a post. He did not mark his condition but he found him alive and alright. He did not examine him. He did not mark his head or face or any injury there. It is this witness who has admitted that there are hostels and shops in front of the Customs Office and there is a play ground to the north of the Customs Office belonging to the local High English School. He, however, has stated that he did not mark any bricks within the play‑ground. This witness has further stated that about ten minutes after his arrival the Sub‑Divisional Food Controller came. When he reached he found 8/10 persons within the office. He also saw the Food Inspector Abdus Salam there. When he was leaving the office the witness asked Santiranjan if he had swallowed, up any note to which he replied "Babu, Whatever you may say. What should I say". The witness has said that while escaping, Santiranjan stumbled on the wooden frame of the door but within the office. It has not been made clear where this witness himself saw this and in our view it could not have been seen by him as the story of escape relates to a period prior to his arrival.
P. W. 5 Kangali Chowkidar has deposed that on the night following Sunday Dofadar Lokman took him and two other Chowkidars to the Customs Office for escorting an accused to the Gomastapur Police Station. They reached Customs Office at about 10 P.M. and found a man lying down on the verandah of the Customs Office, tied down with a post. He also found there accused Shahid and the Custom Inspector. On their arrival accused Shahid along with the Dofadar went out to bring a bullock cart. They came back with a bullock cart. The 3 Chowkidars including him then put the man on the cart. The man was then dead with no breathing. It has further been recorded that this witness previously stated that the man had a little breathing. The 3 Chowkidars and accused Shahid and the Customs Inspector followed the cart on foot. When they reached the Bhanga bridge a row was raised that the smuggler was running away. There was also a direction to drive the cart swiftly. They then reached the thana with the cart. At the Bhanga bridge the smuggler looked at them and they also looked at him. They found him dead. He told the accused, the Customs Inspector Hedayetullah that the man had expired. In cross‑examination the witness has stated that there was stool in the wearing clothes of the man and also in the verandah where he was lying down. He did not see any stool within the cart.
9. P. W. 6 Maniruddin is the cart man whose cart was hired for the purpose of taking Santiranjan to the Police Station. His evidence is that on being asked by Shahid he brought his cart to the Customs Office and after unyoking his bullocks stood at a distance. He was asked later by the Customs 'Inspector to drive his cart. He yoked his bullocks and then left with the cart. Within the cart one man was lying. The three Chowkidars followed the cart on foot. The Customs Inspector and accused Shahid followed the cart on cycles. When they reached the Bhanga bridge the Customs Inspector and accused Shahid said that the man within the cart bad expired. When they reached the thana the Daroga and the doctor examined the man and found him dead. In cross‑examination the witness has stated that the man had stools in his wearing clothes wherefrom smell emitted. The witness has admitted that some time the Customs Inspector and his men check his cart when he carries goods on it. They some time date‑in his cart for search. Some 6/7 months before the incident the accused Shahid detained his cart at the Customs Office for search.
P. W. 7 Dr. Md. Abul Hosain was called by the Investigating Officer and his evidence is that after examining the man on a bullock‑cart he found him dead. In cross‑examination the witness has stated that the man had a dhuti in his wearing and it was soiled by stools and urine. He found no injury on the head.
P. W. 8 Ehsan Ahmed is a grocer who has a shop near the Rohanpur Railway Station. This witness was tendered for cross -examination and in cross‑examination he has stated that his shop is in front of the Rohanpur Customs Office. On 27‑12‑59 at about 4 p.m. accused Shahid took a man from the Customs Office to the Rohanpur check post and let him go. Half an hour after, he heard a row "catch", "catch". He then went behind the Customs office and found a may lying on his face. There were some brick‑bats. He then found accused Shahid was trying to open his mouth. There were many persons present then. That place was about 5 or 6 cubits off to the north of the Customs Office. He did not mark if the man sustained any injury in course of the struggle. The Inspector Hedayetullah told them that the man had swallowed a hundred‑rupee note. He was then tied down in the southern verandah. Abdur Rahman the A. S. I. of the check post was then present. So also the Food Inspector Abdus Salam. The Sub‑Divisional Controller, Food, came there a few minutes after. Dr. Yunus also came later on. He did not hear him saying to apply saline-water to the man. Half a seer of salt was taken from his shop. This witness in the committing Court, however, had stated that Dr. Yunus suggested the application of saline-water. The statement has been put in under section 145 of the Evidence Act to contradict this witness. P. W. 9 Safiuddin is a constable who escorted the dead-body to the Nababgonj morgue and the dead-body was made over to him by the Officer‑in Charge and he identified the same to the doctor who held post mortem examination.
P. Ws. 10 and 11 are the two Police Officers.
10. The above evidence does not in any way show that the evidence of the two eye‑witnesses is untrue. P. W. 3 Dr. Md. Afzal Hos:ain held the post mortem examination on the dead-body of Santiranjan Das. His evidence is that the body of the deceased was moderately stout and he found the mouth and eyes closed. He also noticed bleeding from the nose and the right ear. He found the following injuries on his person: --‑
(1) One ecchymosis 3 " x 3" on the right side of the face, situated on the cheek.
(2) One ecchymosis around the right eye.
(3) One swelling 2 " x 2 " on the right temporal part of the head.
(4) One ecchymosis 3" x 2 " on the left cheek.
(5) One abrasion " x " on the left side of the neck.
(6) One abrasion " x " is on the left lower part of the chest.
On dissection‑be found the vertibrae in tact. Injury No. 3 was present in the skull. Membrance contained coagulated blood on the right temporal side of the bone. Brain congested. Ribs and cartilages healthy. Injury No. 6 was found on the walls of the chest. Heart healthy and empty. Vessels healthy except injured part. Mouth pharynx and desophagus congested. Stomach and its content healthy and filled up with undigested food materials such as rice. Small intestines and large intestines healthy and contained foecal matters. Liver congested. Kidneys congested. Bladder healthy and contained 4 ox, of urine. One fissure fracture 1" in length on the thinner part of the right temporal bone was found. The other organs were healthy. On removing the skins from the side of the injuries extravasation or congestion of blood were found. On the right temporal area there was coagulated blood under the skin, and muscles and over the bones. On removing the peristium from the right side of the skull bone, one fissure fracture already described was found. He directed his special attention for discovery of a hundred‑rupee Pak‑currency note but no fragment of it was found in any part of the elementory cannal from the mouth to the anus. In the opinion of the doctor the death was due to shock and haemorrhage as a result of the injuries stated above. The injuries were ante‑mortem and homicidal in nature. His further evidence is that the swellings, abrasions and ecchymosis could be done by fists and blows. A fracture of a bone is possible without the breaking of a skin. The bleeding from the nose and the right ear might be due to the internal haemorrhage resulting from the injury No. 3. The fissure fracture in question could be done by fist or a blow. Due to the internal haemorrhage there was the pressure of blood on the brain as a result of which the patient lost consciousness gradually and ultimately died as a result thereof. He has further stated that a hundred‑rupee Pak‑currency cannot be congested if swallowed. If the deceased swallowed up a hundred‑rupee Pak‑currency note, it could not be digested within 9 or 10 hours before his death.
11. The evidence of this witness on the question of "swallow ing up of a hundred‑rupee note has been very seriously commented upon by the learned Advocate for Hedayetullah. It has been argued that the evidence of this doctor who is only an L. M. F. regarding digestion of a hundred‑rupee note cannot be accepted. It is not necessary for us to go into this question for the purpose of this case. It is evident from the deposition of this witness that the death of Santiranjan Das resulted on account of injury No. 3 found on his head. There cannot be any question that this injury was sustained by Santiranjan Das while he was in the custody of the Customs Officer. Having regard, however, to the evidence of P. W. 8 Ehsan Ahmed the possibility that this injury had been sustained by the deceased in course of struggle over brickbats cannot be excluded and in that view of the matter we think that the appellants are entitled to the benefit of doubt with regard to causing of this particular injury. This is the only injury which can bring the two appellants within the mischief of section 325 of the Pakistan Penal Code. The other injuries were simple. We have already found on the evidence of P. Ws. 1 and 2 that Shahid assaulted Santiranjan Das with slaps and kicks while he was kept tied up and this was done in the presence of Md. Hedayet ullah, the Customs Inspector. Therefore, we have no manner of doubt that Shahid is guilty at least under section 323 of the Pakistan Penal Code.
12. The only question that remains to be considered is whether the conviction of Hedayetullah, who must of necessity in view of our finding above be held not to be guilty under section 325, be altered to one under section 323 of the Pakistan Penal Code. Section 33 of the Penal Code provides that the word "act" denotes as well as a series of acts as a single act: the word "omission" denotes as well as a series of omissions as a single omission.
Section 32 of the Code provides that in every part of the Code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.
Therefore, we are to see whether in view of the evidence in this case Hedayetullah was responsible for any illegal omissions amounting to acts done under the Penal Code in connection with the assault on the deceased by Shahid so as to bring his illegal omissions within the mischief of acts punishable under section 323 of the Penal Code. We have already pointed out that the evidence clearly establishes that the deceased was taken into custody by Hedayetullah and he was assaulted by Shahid in his presence, nay, under his very rose. Hedayetullah having regard to his official rank in relation to Shahid was in a position to prevent the assault by Shahid on the deceased. He not only did not do so, but, ins our view, connived at it and in that view of the matter he is equally guilty as Shahid in view of the provisions of sections 32 and 33 of the Penal Code.
13. Mr. Hamidul Haq has claimed a right of private defence on behalf of his client which has also been the argument of Mr. Fazlul Karim on behalf of Shahid. Reference in this connection has been made to the provisions contained in section 104 of the Penal Code. It has been said that when Santiranjan Das swallowed up a hundred‑rupee note, the accused persons had the right to protect the property which belonged to the State after its seizure and if in doing so they had assaulted him they are protected under the provisions of this section. It is difficult first of all to see how if the note had already been swallowed up assault on Santiranjan was thought to be a method to protect the note. By no stretch of imagination can it be said that the assault can be thought to be a method for bringing out a note swallowed up by a man. Had it been the case of the defence that when Santiran jab made an attempt to swallow up the note there was a struggle to protect the note and in course of that struggle he had sustained some injuries there could be a claim of right of private defence of property but the defence has all along suggested that Santiranjan had swallowed up the note and the evidence is that he had been assaulted after it was done. We do not see how in such a circumstance the right of private defence can be claimed or how the attempt to bring down the offence to one under section 334 of the Pakistan Penal Code on the plea of great provocation can succeed. The note if it had been swallowed up was done when Santiranjan was in the room of the Customs Officers. The assault took place on the verandah after keeping him tied up with a post. After giving our anxious consideration to all the arguments of the learned Advocate we cannot find any justification for such an act under the provisions of the Penal Code. The decision in the case of Queen Empress v. Latif Khan (I L R 20 Bom. 394), is against Mr. Hamidul Haq Chowdhury. An Officer to be worth his salt is expected to act strictly in discharge of his duties and has a right to do so but he must act within the bounds of the law. He cannot, however, claim to act tyranically even in discharge of his official duties. To concede such a right would bring about disorder where order should be the goal of everybody. If the deceased was trying to smuggle Pak‑currency out of this country, Hedayetullah and Shahid had every right to proceed against him according to law and see that the penalty provided in the law was meted out to him. They had, however, no right to take the law into their own hands and punish the offender according to their liking in disregard of the provisions of law. We, therefore, hold that the appellants had no right of private defence, when one of them assaulted and the other stood by without trying to prevent it and thus connived at it.
14. Mr. Haq has further urged that illegal omissions within the meaning of section 32 arise only when a‑ duty is specifically cast on an Officer to do an act and he does not do so. Here in this case accused Hedayetullah took Santiranjan Das into custody and kept his hands tied up. It was his duty to protect him from any assault either by his own subordinate or by others. Not only did he not do that but, in our view, he actively helped Shahid in doing so, and, therefore, his omissions to prevent the assault come within the mischief of section 32 of the Penal Code.
15. The last question that has been raised by Mr. Haq and adopted by Mr. Md. Fazlul Karim is that the prosecution of the appellants without any sanction under section 197 of the Code of Criminal Procedure was illegal. Section 197 of the Code of Criminal Procedure provides that when a public servant is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty no Court shall take cognizance of such an offence except with the previous sanction of the authorities mentioned in that section. We have elaborately dealt with the facts of this case and we are unable to agree with the learned Advocates for the appellants that the assault took place in the discharge of their official duties. We have already found that the assault did not even take place while Santiranjan was trying to swallow up the note but according to the defence case the note had already been swallowed up and if the eye‑witnesses are believed, which we have done, the assault took place sometime after that. It is, therefore, difficult to understand how the appellants can claim that the assault took place in the discharge of their official duties. It was a cool and calculated act on the part of the appellants to punish him for an L act of indiscretion and in our view a prosecution lodged for bringing such an act to book does not require previous sanction under the provisions of the above section. This question has bee dealt with very elaborately by the Supreme Court in the case of Syed Ahmed v. The State (P L D 1958 S C (Pak.) 27). Applying the principles laid down in that decision, with reference to the official duties of the appellants, we are unable to hold that the assault by Shahid in the presence of Hedayetullah was in discharge of their official duties. We, therefore, agree with the learned Judge that no sanction was necessary in this case under the provisions of section 197 of the Code of Criminal Procedure.
16. The result, therefore, is that we alter the conviction of the appellants from one under section 325/34 to one under section 323/34 of the Pakistan Penal Code and in view of the facts of this case we sentence each one of them to rigorous imprisonment for one year Md. Shahid is in jail since his con viction i.e. from 20‑8‑60 and he is, therefore, directed to be released at once if not required in any other connection. Mr. Hedayetullah who is on bail will now surrender to his bail and serve out the sentence imposed on him. With this modification the appeals are dismissed.
K. B. A.
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