P L D 1959 (W (PLP)

Dates of hearing : 29th and 30th June 1959. Ahmad Din, a motor driver of Sialkot, has been convicted under section 304‑A, P. P. C. wrongly described as "section 304 Part A", by the Learned Sessions Judge, Sialkot, and sentenced to two years' rigorous imprisonment.

2. This case bears a few peculiar circumstances. Ghulam Ahmad deceased was knocked down by a car, No. PBM 1103, speeding its way on the Sialkot‑Daska Road at evening time on the 11th of April 1957. The deceased, who was riding a cycle, was run over, and he died on the spot with his ribs broken, and heart and both lungs punctured. The matter was reported to the police and A. S. I. Kaisar Alam of the Sialkot Saddar Police Station, who conducted the initial investigation challaned the accused under section 304‑A, P. P. C. Muhammad Riaz P. W., a son of the deceased, was not satisfied "with this investigation and attempted to trace down the crime to a conspiracy between the appellant and three others, namely, Safdar, Muhammad Sarwar and Ata Hussain. It was alleged by him that Safdar had brought about this murder in conspiracy with the others, named above, and this was because Safdar had a grudge against the deceased who had brought about his expulsion from the Zamindara School, Sialkot, in the year 1955 when the deceased was the Headmaster there. The appellant was assigned the role of a hired assassin. The D. I. G. who was finally approached by Muhammad Riaz with this allegation, deputed Sardar Ali (P. W. 2), D. S. P., C. I. A., Lahore to investigate the case who apparently accepted the story of Muhammad Riaz and ordered that the four persons named above, including the appel lant, be challaned under sections 302, 120‑B and 109/34, P. P. C. An inquiry was held by the Committing Magistrate, Mr. Ghulam Murtza Piracha, who, disbelieving the story of "conspiracy", discharged Safdar and Muhammad Sarwar accused under section 209 Criminal Procedure Code, and committed for trial Ata Hussain and Ahmad Din appellant under section 302/34, P. P. C. The learned Sessions Judge, Sialkot, Mr. Sultan Khan, who tried this case, has acquitted Ata Hussain and convicted the appellant as mentioned above.

3. A legal objection has been taken to this conviction and as I am upholding that objection, setting aside the conviction, and ordering a retrial, I do not wish to touch on the merits of the case under section 304‑A. The objection is to the effect that the appellant has been convicted under section 304‑A although the charge framed against him was under section 302/34, which had failed. The offence under section 304‑A not being cognate to the offence under section 302, the conviction of the appellant is illegal on account of the absence of a specific charge on that count.

4. Under the Criminal Procedure Code, the legal require ment is, that both in Sessions trials and the trial of warrant cases by the Magistrate, an accused person should be charged with the offence or offences for which he is to be tried an convicted. This rule has certain exceptions, contained in sections 236, 237 and 238, Criminal Procedure Code. Sections 236 and 237 do not have any relevancy to, this case. Section 238 of Criminal Procedure Code, having a seeming relevancy, reads as follows :‑ "238. (I) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such com bination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though lie was not charged with it. "(2) When a person is charged with an offence and the facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, though he is not charged with it".

5. The offence of culpable homicide amounting to murder, or not amounting to murder, as covered by sections 302 and 304, P. P. C. respectively, have for their main ingredients the intention to cause death or to cause such bodily injury as is likely to cause death or, in the case of an act covered by section 304 (II), the guilty knowledge that,, death would be the likely result of the act. Section 304‑A is a distinct offence by itself making punishable the causing of death by any rash or negligent act. The quintessence of the offence is rashness or negligence, where neither intention nor knowledge is necessary. As such, there seems nothing in common between the offence under sections 302 or 304 and 304‑A as far as their respective ingredients go, beyond the result of causing death. It is clear, therefore, that subsection (1) of section 238 does not apply, as section 304‑A is not a combination of some of the particulars of section 302 to constitute a minor offence.

6. Subsection (2) of section 238 is couched in more general terms, and a person who is charged with an offence, and facts are proved which reduce it to a minor offence, he, may be convicted for that minor offence, although not charged with it. Major and minor offences are not defined anywhere in the Codes, but commonly they have been understood in relation to each other in terms of the amount of punishment involved. But the law does not contemplate that a person can be convicted for a minor offence when charged for a major offence, whatever the character of that major offence may be. The principle on which a conviction for a minor offence proceeds, in such circumstances, is that the graver charge gives notice to the accused of the circumstances constituting the minor offence, the latter being a mere subtraction from the former. However, it would be against all principles of justice to convict an accused person for an offence of which or of the main particulars of which, he has no notice, as it would be taking him completely by surprise, shutting out his defence that he may produce in the case, if he were aware of his liability to conviction for an offence different from the one with which he is charged. In other words the conviction for a minor offence can proceed only where an accused person is not prejudiced in any way by that conviction by the absence of a specific charge for that offence.

7. In my view, subsection (2) and subsection (1) of section 238 have to be read ejusdem generic, with the result that even under subsection (2) a conviction for a minor offence will be valid only where it is cognate to the major offence on which the trial has proceeded. If the two offences involve different elements and different questions of facts, one offence cannot be said to be minor to the other, even though the offence be minor in the sense that it involves a lesser punishment. For example, a person charged with the offence of dacoity cannot be convicted for mischief proved to have been committed even though the offence of mischief provides a lesser punishment. Again, a person charged with the offence of murder cannot be convicted for forgery or misappropriation, the two being entirely different offences. In criminal trials it is a matter of great importance that an accused person should be fully aware of the nature of the crime which he is made to answer and that he should, at no stage, be taken by surprise.

8. As stated above, I do not see anything common between section 302 and section 304‑A, their particulars and ingredients being altogether different. The conviction, therefore, under section. 304‑A in this case, in the absence of a charge for that offence, is illegal.

9. I have considered the question whether this is an irre gularity which could be cured under section 535 or 537 of the Criminal Procedure Code. Under both these sections an irregularity in the trial of an offence including the omission to frame a charge can be condoned, if it has not occasioned a failure of justice. But in the case in hand I feel that a clear prejudice has been caused to the appellant and he has been taken completely unawares in the matter of his conviction under section 304‑A. His examination by the trial Court did not at all put him on any caution or explanation regarding his liability for conviction under section 304‑A.

10. In view of the above discussion I am constrained to quash this conviction and forward the proceedings to the District Magistrate, Sialkot, with the direction that the appellant shall be retried for an offence under section 3C4‑A either by himself or by some other competent Magistrate. The offence under section 304‑A, P. P. C. is bailable. The appellant shall be admitted to bail to the satisfaction of the District Magistrate, Sialkot, during the pendency of the trial. K. B. A. Retrial ordered.