P L D 1963 Supreme Court 34 (PLP)

CORNELIUS, C. J.‑The appellant, Roshan Ali Khan was given special leave to appeal against the judgment of a learned Single Judge of the High Court of West Pakistan (at Karachi) maintaining his conviction under section 333, P. P. C. as well as the sentence of two years' rigorous imprisonment which had been imposed by the trial Court, namely, an Additional Sessions Judge of Hyderabad. The ground on which leave was granted was that there was nothing to distinguish his case from that of one Hassan Ali whose appeal against his conviction in the same case and for the same offence had been allowed by the High Court and he had been acquitted. On examining the record with the assistance of counsel, we are satisfied that on the facts, there were sufficient points of difference between the case of Hassan Ali and that of Roshan Ali Khan to justify the differential treatment. The trial had proceeded against three persons, namely, Roshan Ali Khan, his nephew Hassan Ali and one Ibrahim, a servant of theirs. Roshan Ali Khan and Hassan Ali had a shop in the bazar of Tando Allah Yar and on the day in question, with their servant Ibrahim, they were present at the office of Mr. Qamar Din, P. W. 1, Inspector of Weights and Measures where they had taken their weights and scales for verification. Mr. Qamar Din was present in his office, and according to the complaint which he subsequently made, he heard a noise "in the shop of repairers" by which was apparently meant the adjacent office room, which is also used as a laboratory. Going there he saw Hassan Ali grappling with his clerk Abdul Sattar, P. W. 2, and knocking him down. Then, Ahmad, P. W. 3, who is a peon attached to Mr. Qamar Din intervened and Roshan Ali using a thick piece of fuel wood gave him a blow on his head so that he fell down. The servant Ibrahim was there and he also had a piece of fuel wood with which he gave blows to both Abdul Sattar and Ahmad. Mr. Qamar Din said that thereafter Hassan Ali also picked up a piece of fire‑wood and started to give blows with it to both Abdul Sattar and Ahmad. (Apparently, this Ace room was also used in part for the storage of fuel wood.) Qamar Din stated that the assailants as they beat his subordinates continued to abuse them, and that they were abusing them when they left the spot. When he went to the Thana in Tando Allah Yar to make a report, Hassan Ali and Roshan Ali were already present there, which suggests that they had a case to put forward. That was indeed so, as will be seen presently. As to the evidence of Mr. Qamar Din, it was disbelieved by the trial Court when it acquitted the accused Ibrahim, and it was later disbelieved by the High Court when that Court acquitted Hassan Ali. These results followed from the fact that other witnesses did not support Mr. Qamar Din's evidence in detail. Abdul Sattar said that Hassan Ali caught hold of him and there upon accused Roshan Ali Khan gave him a blow, and he fell down unconscious. Ahmad supported the statement to this extent that he said that Hassan Alt caught hold of Abdul Sattar and without saying who hit Abdul Sattar, he deposed that he tried to rescue the latter and thereupon Roshan Ali gave him a blow on his head and he became unconscious. There was another witness; Pandhi, by name, who runs a neighbouring shop. He was sitting outside the office of the inspector and saw Hassan Ali and Roshan Ali catching hold of Abdul Sattar. Hassan Ali and Roshan Ali both picked up pieces of fire‑wood and Roshan Ali hit Ahmad on the head while Hassan Ali hit Abdul Sattar on the head and both fell down. Pandhi' s evidence was supported by the fact of his having an injury which he said he received in the course of the scuffle, but he could not say at whose hands. The three witnesses Abdul Sattar, Ahmad and Pandhi not having said a word about any blows by Ibrahim, the case against the latter was left in considerable doubt. As to Hassan Ali, the learned Single Judge in the High Court considered the discrepancies in the evidence as to his part in the assault, and gave "the benefit of doubt to Hassan Ali as regards the allegation against him that he, had caused the blow on Sattar or he had held Ahmad to enable Roshanali to inflict the blows on him". These findings appear to us to be duly supported by the evidence on the record, and the ground upon which leave to appeal was granted there fore fails. A point is however raised before us as to the legality of the conviction under section 333, P. P. C. The argument is put on the basis that the learned Judge in the High Court having found that Abdul Sattar was demanding from the accused persons a larger sum than they were due to pay for the service of verification of their weights and scales, and this was being resisted by the accused persons which led to an exchange of abuse and finally to the blows which were undoubtedly given, the case does not satisfy the conditions necessary for aggravation of the offence of grievous hurt ordinarily punishable under section 325, P. P. C. to the more serious offence defined in section 333, P. P. C. Sections 332 and 333 of the Pakistan Penal Code deal wit the offences of simple hurt and grievous hurt, ordinarily punish able under sections 323 and 325, P. P. C., when such hurt is caused to public servants, Three particular cases are included in each of these sections, namely, the causing of hurt to a public servant‑ (1) When he is engaged in the discharge of his duty as such public servant; (2) when it is done in order to prevent that public servant or any other public servant from discharging his duty as such public servant; or (3) when the hurt is caused "in consequence of anything don or attempted to be done by that person in the lawful discharge of his duty as such public servant." It is argued that this case falls in the third of these categories. The conduct attributed to the accused persons was a reaction or result of the behaviour of the public servants towards themselves. There is no suggestion that the accused persons acted as they did in order to prevent Abdul Sattar and Ahmad from discharging their duties. Nor does the case fall in the first category which might conceivably include cases of attack on a public servant while he is at his work, the attack not being made with intent to stop him from doing his work, and not being a reaction to anything done by himself. It has been found by the learned Single Judge in the High Court to be proved that for the work which had been done in relation to the accused persons, the total charge which could have been made was a sum of Rs. 6‑2‑0, but Abdul Sattar had demanded Rs. 12 and this was objected to by the accused persons. The evidence of the peon Ahmad to the effect that there was a dispute between the accused persons and Abdul Sattar "over verification charges and they exchanged hot words and abuses with each other", can thus be related to a demand by Abdul Sattar for a sum about double that which the accused persons were legally bound to pay. With this may be read a part of the complaint made by Mr. Qamar Din. In that complaint he reproduced what was said to him by Abdul Sattar regarding the origin of the incident. All that Abdul Sattar said was that the accused persons had enquired from him where the office of Mr. Qamar Din was and being told that he was in the adjoining room, they started to abuse him and then fought with him and Ahmad. However, in his evidence‑in‑chief, he admitted that the trouble broke out over the verification fee, and the demand of the accused persons to see the officer, is thus reasonably related to a possible intention to complain to the officer that money was being extorted from them by his subordinate. The learned Single Judge in the High Court dealt with the matter in this way. It had been suggested in cross‑examination to Abdul Sattar that he had recovered a sum of Rs. 22 from the accused persons and was only willing to give them a receipt for Rs. 12, in other words, that he was retaining Rs. 10 as illegal gratification. The possession of a receipt for Rs. 22 might have enabled the accused persons to establish the extortion if they complained to the superior officer. The learned Single Judge expressed the opinion that if this version had been accepted, he would have thought that the demand being made by Abdul Sattar was an illegal one, and therefore section 333, P. P. C. was not attracted to the case. He proceeded to hold that in fact Abdul Sattar was demanding Rs. 12 whereas he could have asked for only Rs. 6‑2‑0 and that this demand was not justified, but at the same time, the learned Single Judge thought that this excessive demand might have been made by mistake and it was not necessary to hold that Abdul Sattar was acting dishonestly. In support of his view, the learned Single Judge also said that if the accused persons had "kicked up a row", to avoid trouble, Abdul $attar would normally "have returned the excess money and would not have risked a show‑down" which would have brought to light an act of bribery. The view that the learned Judge took may be a possible one, but there is the other view possible, namely, that a bribe was being extorted and that violence broke out when the merchants showed an intention to report the matter immediately to the superior officer in the next room. There being a doubt which of these two interpretations of the action of the public servant is the correct one, that which goes to the benefit of the accused persons i.e., which places their act for purposes of punishment, under the less severe section, namely, section 325, should have been accepted. We consider that on the facts found by the learned Single Judge, .the conviction can only be placed under section 333, P. P. C. by giving the benefit upon a point, which was material to the determination of the offence, not to the accused person as is required by right principle, but to the prosecution. The case appears to be one which should properly be treated' as violent resistance by the accused persons to an act of extortion by the, public, servants, which cannot be thought to be done in the' "lawful discharge of their duty as such public servants". In the course of the violence, grievous hurt was caused to one of the two public servants involved, by Rosban Ali Khan, who has been held guilty accordingly. He can rightly be convicted of the offence of grievous hurt simpliciter under section 325, P. P. C. and not of the aggravated offence under section 333, P. P. C.; We accordingly alter the conviction of Roshan Ali Khan to section 325, P. P. C. and taking into account all the circum stances, we reduce his sentence to one year's rigorous imprison ment: K. B. A. Sentence reduced: