Regina v Ahmad [1977] FJSC 127; Criminal Appeal No. 71 of 1977 (8 July 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. 71 of 1977

BETWEEN

REGINA
Appellant

AND

KUNJH AHMAD s/o Barba Kutti
Respondent

Mr. Ikbhal Khan, Counsel for the Appellant
The Respondent in person.

JUDGMENT

The accused was charged for threatening violence contrary to section 96 of Penal Code on dates between 1/2/77 and 31/3/77. In the particulars it is alleged that he threatened Khatiya d/o Abdul with a dagger at a time when she was in occupation of a dwelling house.

A plea of not guilty was recorded and the learned magistrate then purported to terminate the proceedings under Section 160 of Criminal Procedure Code. The reconciliation was to be promoted by way of the accused giving the complainant and 9 children of hers a half share in some lease-hold estate.

No particulars appear in the magistrate's record of the threats; time of day; the number of times there was any threat; whether the police were called. There is nothing on the record to suggest that the complainant was terrorised or terrified.

The Crown have appealed against the magistrate's decision on the ground that he has no authority under Section 160 of Criminal Procedure Code to make any order for compromise in such a case.

Under Section 160 of Criminal Procedure Code, the magistrate formerly had powers to make a compromise in such cases. However, S. 160 was repealed in 1976 by Act 18/76 and replaced by a new section.

The amended section limits the type of case in which the magistrate may promote conciliation to offences committed under Section 218(1), Sections 276, 277 and S. 360(1) of Penal Code. In the instant case the offence charged arises under S. 96 of Penal Code and is therefore not within the orbit of S. 160 of Penal Code. It follows that he had not the power to make any order for reconciliation.

During the hearing of the appeal the accused (respondent) tendered his last will and testament which revealed that he left all he possessed to his wife, who happens to be the complainant. One is inclined to wonder why, after making such a generous will, he should then threaten her with a dagger. She is his common law wife but has born thirteen children to him. It seems that the accused (respondent) is quite illiterate and his will was drafted on instructions tendered to the draftsman by the brother of the common law wife, the complainant. The accused also stated that she had been squandering his money on her brothers.
.
It may well be that the magistrate felt that this was a case for reconciliation but the statute no longer allows him to treat it on this basis. The Magistrate's orders for reconciliation and termination of the proceedings are not set aside, and they are remitted to him for the hearing to continue following the accused's plea.

I would add that during the appeal the accused (respondent) contended, as he had done before the Magistrate, that he had not threatened his wife (the complainant).

(Sgd.) J.T. WILLIAMS
JUDGE

LAUTOKA,
8TH JULY, 1977.