P L D 1974 Karachi 71 (PLP)

"On 6‑2‑70, I was working Sub‑Charge at D. H. Q. Hospital, Sukkur. On that day at 12‑00 noon Mst. Siddiqan w/o Sher Mohamed was admitted as in‑door patient in unconscious state and in serious condi tion. On examination I found the following: Blood Pressure was 260/120. Pupils dilated. Reflexs exaggerated. Heart Tachycardia. Pulse 20." There is not the slighest reference here or later that her condition was caused or even suddenly brought on by any assault. He performed a post‑mortem examination. The only matter that lie found abnormal was that the heart was enlarged in transverse diameter and that the left ventricle of the heart was abnormally hypertrophied. He finally recorded it as his opinion that "the death of the deceased was due to cerebral haemorrhage, rupture of cerebral vessels consequent to hypertension. The cerebral vessels were thickened and ruptured." I am quite unable to see on this state of the medical evidence how it could possibly be claimed by the prosecution that the death was hastened by the assault, assuming even that lady's chronic condition was such that an incident of the kind which occurred could be expected to lead to some kind of a heart attack which might result in death. If the prosecution wanted to rely upon Explanation I to section 299 of the Pakistan Penal Code, clearly it was their duty to have brought evidence, including medical evidence, to that effect. Not a question nor a suggestion was put to the doctor upon this point. The two doctors who had earlier seen her, namely, Dr. Kidwai and Dr. Anwar, were not even examined. There is no evidence, whatever, that she was regarded in the family as an invalid or was known to be suffering from a cardiac condition. On the contrary her husband, the first informant, says expressly "Mst. Siddiqan was healthy and used to attend to her household work." I cannot possibly, therefore, accept the argument of the prosecution that this was a case under section 304.

11. As to the knowledge of the appellant that such was her condition, again there is not a word of evidence upon the record. The prosecution wish me to infer it from the fact only that, living as he was in the same house, lie ought to have known of her condition. It seems somewhat strange that not only should her husband be ignorant of this condition but go so far as to describe her as being healthy and yet the son‑in‑law, who after all lived in the house for a much shorter period than the first informant, should be saddled with the knowledge that she had this abnormal heart condition. Whatever view, therefore, I take of the guilt of the appellant under section 323 of the Pakistan Penal Code there is no justification, whatever, for setting aside the acquittal under section 304 (II) and directing a retrial.

12. In regard to the liability of the appellant under section 323 of the Pakistan Penal Code, however, learned counsel has raised before me two questions of law but they can be appreciated properly only after I refer to the appellant's own version of what happened on that day. According to his statements in both Courts, when he came down in the morning his wife started abusing him and upon his remonstrating his mother‑in‑law rushed at him with both her hands raised and he, therefore, had to push her aside with the result that her foot slipped and she fell on the ground. He adds that he was sincerely sorry that she died and that indeed he meant no harm to her. Now, according to the evidence and even according to the appellant (except that he states that Tajeran has sued him for divorce, presumably after the incident), the relations of the appellant with his father‑in‑law or the rest of the family were not strained. It is true that according to the prosecution he wanted to set up house on his own but it is equally true that he continued up to the day of the incident at least to live with his father‑in‑law. I am quite prepared to believe that this might have resulted in some strain on their relations but even so, I find it difficult to believe that when he came down in the morning, without any preliminary and without any immediate cause the mother‑in‑law would start abusing him and even assaulting him. The deceased was, according to her husband, then about 55 or 56 years old although the doctor puts her age at about 45 years. In any case she was not a young woman while the appellant is a young man of 27 years. The version he gave makes no reference whatever to what is stated to have taken place the earlier day and, even if one dismisses the prosecution evidence upon that particular point as false, though I see no reason so to do, he himself alleges nothing which should have been the immediate occasion of the alterca tion. Indeed learned counsel for the appellant before me did not try to pur suade me that the facts were as alleged by the appellant in his statement but preferred to put it in another way. He said that the appellant was annoyed on account of his wife's refusal to go to his brother's house the earlier day and that he, therefore, reprimanded her and even slapped her. While of course he does not claim that, technically, such a slap would not amount to an offence under section 323, in relation to his own wife, he argued that the structure of our society is such that a little mild chastisement inflicted by a husband upon his wife is to be regarded more or less as a matter within his authority and in any event not to be seriously taken notice of. In this view of the matter he, therefore, argues that his mother‑in‑law's intervention was wholly unjustified and if he, therefore, pushed her aside he was well within his rights so to do. In any case he claims that the matter was a trivial one and that by reason of section 95 of the Penal Code there is no offence committed. Now section 95 of the Penal Code reads thus: "Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm." I regret I am wholly unable to regard section 95 as excusing such an act of assault as upon the hypothesis of this argument the appellant admittedly committed. The language used in the section was intended to excuse much more trivial matters than are in question in the present case. A short passage from the Report of the Law Commissioners who drafted the Code, will, I think, make my meaning clear. They observed: "This section is intended to provide for those cases which, though, from the imperfections of language, they fall within the letter of the penal law, are yet not within its spirit and are all over the world considered by the public, and for the most part dealt with by the tribunals, as innocent. As our definitions are framed, it is theft to dip a pen in another man's ink, mischief to crumble one of his wafers, an assault to cover him with the cloud of dust by riding pass him, hurt to incom mode him by pressing against him in getting into a carriage. There are innumerable acts without performing which men cannot live together in society, acts which all men consistently do and suffer in turn, and which it is desirable that they should do and suffer in turn, yet which differ only in degree from crimes. That these acts ought not to be treated as crimes is evident, and we think it far better, expressly to exempt them from the penal clauses of the Code than to leave it to the Judges to exempt them in practice; for if the Code is silent on the subject the Judges can exempt these cases only by resort ing to one of two practices which we consider as most pernicious, by making law, or by wresting the language of the law from its plain meaning."

13. Counsel's next reliance was upon section 80 of the Penal Code, his argument being that what the appellant is alleged to have done was done by pure accident. Now section 80 is worded in these terms: "

80. Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution." Again I regret I am unable to accept this argument because section 80 exempts from penal liability only such things as are done "in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution". I am not even able to hold that the slapping of the wife by the appellant was in itself a lawful act but, assuming with learned counsel that our society would not take notice of this, surely this jurisdiction of a husband does not extend itself to his mother‑in‑law as well. If she remonstrated with him for abusing and slapping his own wife this hardly gave him a right to push her down ; there certainly was no question of a right of private defence.

14. I have, therefore, come to the conclusion that the conviction of the appellant under section 323 of the Pakistan Penal Code was clearly justified. The question then is whether the sentence should be enhanced but, before I come to that, T must deal with the plea of learned counsel for the appellant that it should be reduced. Really the plea rests on no more than what was already argued for the purpose of applying section 95 or section 80 of the Penal Code, and I do not find that they suffice to mitigate the sentence so, much that I should reduce the sentence from lone of six months which I consider a reasonable and not unduly harsh sentence to impose. Closely linked with this plea is the argument of learned counsel that the appellant's case falls under section 334 of the P. P. C. rather than section

323. In other words it is claimed that the act of the mother‑in‑law in protesting or even in intervening caused such provocation to the appellant that he would be liable, if at all, under that section. I think the argument overlooks the fact that it is only when hurt is caused on grave and sudden provocation that the: section applies. I doubt if it can be seriously held that there was any provocation in this case at all. But the argument that it was either grave or sudden is entirely fantastic. I then come to the question of enhancement. That six months would have been obviously inadequate if the appellant was convicted under section 304 (II) I have‑ no doubt but, quite apart from the question that I am not at all satisfied that section 304(11) is attracted at all, in this case the further question is whether I may while convicting the appellant under section 323 nevertheless have regard to the fact that he is guilty under section

304. In my own humble opinion this would I think be entirely wrong, for I cannot, while acquitting him of one offence convict him of another and yet assess his sentence on the basis of the crime of which he is acquitted and, of which I cannot convict him. This would, I think, be a clear violation of the principle that what cannot be done directly must not be done indirectly. But apart from my own view, I think the law on this subject is so well and authoritatively established by two decisions of the Federal Court of Pakistan that a reference to them should make the matter entirely clear. The first of' these is the case reported as Shera v. The Crown (P L D 1954 F C 141) and in order to understand this case fully it is necessary, I think, to make some reference to the state of the authorities before this case and indeed before the case of Kishan Singh v. The King‑Emperor (55 I A 390), which is prominently mentioned in the Federal Court decision. Before the Privy Council case there was a view that, if a person was on a ,trial convicted of a minor charge though acquitted on the graver one with which he was charged, then the High Court could nevertheless alter the finding and hold him guilty of the graver offence and exercising the‑ powers which are conferred upon the High Court in revision enhance the sentence. In Kishan Singh's case the appellant was tried for murder but con victed only of culpable homicide not amounting to murder; the High Court, on the view that I have stated, altered the finding and, holding the appellant guilty of murder, sentenced him to death. Their Lordships of the Privy Council held that the High Court had no such power and, therefore, allowed the appeal of the appellant.

15. Now in Kishan Singh's case the convict had not appealed against; his conviction under section 304 of the Penal Code and it was only the State which had applied to the High Court in revision. The question, therefore, arose after Kishan Singh's case whether, when in the case of a partial acquittal the convict does appeal, the High Court could not, exercis ing powers as an appellate Court, alter the finding and then, exercising the powers of a revisional Court enhance the sentence and in the case of Bawa Singh v. The Crown (I L R 1942 Lah. 129), a Full Bench of the Lahore High Court decided that that could be done. In the case of Shera (which is the Federal Court case to which I am leading) the same thing occurred. In that case it was conceded by the State that if the convict does not appeal no question of exercising the appellate power arises and that, therefore, the tiding could not be altered and they pointed out that the distinction which Bawa Singh's case had made was that it is only when the convict appeals that the two powers could be combined so as to give effect to a conviction and a sentence for the graver offence of which he had been acquitted by the Court of Session. Concededly, therefore, if in 8awa Singh's case the convict had not appealed the High Court could not have acted as it did. In the case of Shera also the position was the same; the convicts had appealed. The Federal Court overruled Bawa Singh's case holding that an acquittal could not be converted into a conviction except under section 417 of the Criminal Procedure Code. Whether or not, therefore, there was an appeal by the convict, unless an appeal was filed under section 417 the acquittal would stand.

16. The facts in the case of Rafiq v. The Crown (P L D 1955 F C 70) were that the appellant had been tried for murder but the Sessions Court, holding that he had acted under grave and sudden provocation convicted him under sec tion 304 (I) and sentenced him to seven years' R. I. Against this conviction be appealed to the High Court (or rather the Chief Court of Sind as it then was) and the learned Judges who heard the appeal in that Court were of the view that the facts upon which the theory of grave and sudden provoca tion was based were entirely fabricated. Realising that in view of the case of Shera they could not convict the appellant under section 302 they neverthe less enhanced the sentence under section 304 (I) to one of transportation for life. As it happens transportation for life is a sentence which can be awarded under section 302 as also under section 304 (I). What the learned Judges of the Chief Court did is best put in the language of Cornelius, J., as he then was, who delivered the majority judgment: "The learned Judges in the Chief Court did not find themselves empowered to replace the conviction under section 304 by one under section 302, P. P. C. Yet, while confirming the conviction under section 304, Part I, they have assessed the sentence in relation to their belief that the case was one of murder, using for the purpose the extraordinary power of enhancement reserved to them by section 439, Cr. P. C." This the Federal Court thought clearly wrong and, again quoting from the judgment of Cornelius, J., the judgment proceeds: "The procedure thus adopted displays a grave error of principle. The conviction under section 304, Part I on the basis of grave and sudden provocation, rested on certain facts found by the trial Court. In confirming that conviction, the learned Judges have purported to ignore those facts. It was not competent for them to do so, nor could they treat the case, for any purpose, as one of murder, in the absence of a power to alter the conviction. By maintaining the conviction ‑for the minor offence and setting the quantum of punishment in relation to the major offence, the learned Judges have fallen into an anomally which was wholly unnecessary. They could have re examined the adequacy of the sentence in relation to the facts found by the trial Judge, but this they have not done. The sentence awarded by them to Rafique cannot be regarded as having been judicially imposed."

17. In any view of the matter, therefore, I am unable to hold that an enhancement of sentence in this case would be proper. Viewed as an offene under section 323 the sentence was adequate. If it was an offence unde section 304 (II), which I have held it was not, an enhancement would mean assesssing the sentence on the basis of guilt under section 304 (II) although recording a conviction only under section 323, Pakistan Penal Code.

18. In the result, I therefore, maintain the conviction and the sentence imposed upon the appellant and dismiss this appeal. The notices to sho cause against re‑trial or enhancement of sentence are discharged. s. G. D.ls. A. H. Order accordingly.