| Citation(s) |
|---|
| 1957 SLG 230 1957 SLD 230 = 1957 PLD 92 |
Privy Council
Privy Council Appeal No. 9 of 1956, decided on 4th December 1956, from the Court of Appeal for Eastern Africa.
Present: Lords Oaksey, Tucker, Cohen, Keith of Avonholm,
A. Campbell for Appellants. James Stirling Q. C. and D. A. Grant for
Respondent.
Privy Council Appeal No. 9 of 1956, decided on 4th December 1956, from the Court of Appeal for Eastern Africa.
Present: Lords Oaksey, Tucker, Cohen, Keith of Avonholm,
A. Campbell for Appellants. James Stirling Q. C. and D. A. Grant for
Respondent.
LAILA JHINA MAWJI and another-Appellants
VERSUS
THE QUEEN-Respondent and Somervell of Harrow
Law: Penal Code (XLV of 1860)
Section: 120
Law: Evidence Act (I of 1872)
Section: 122
P L D 1957 Privy Council 92 Criminal conspiracy--------Between husband and wife only Whether indictable under law of Tanganyika (East Africa) Rule of English Law--[Pakistan Penal Code (XLV of 1860), S. 120-A-Evidence Act (I of 1872). S. 122]. Held, that the rule of English Law that no prosecution for criminal conspiracy is maintainable against husband and wife only "because they are esteemed but one person in law and are presumed to have but one will, applies to the law of conspiracy in Tanganyika (East Africa), and should thus be deemed to have been incorporated into section 110 (a) of the Tangany ika Penal Code by virtue of section 4 of the same Code. Further, that the English rule being part of the criminal law of Tanganyika it applies to any husband and wife of a marriage valid under the Tanganyika law, whether monogam ous or polygamous. [Re: principle involved in the rule cf. section 122, Evidence Act (I of 1872), Also contrast with section 120-A, Pakistan Penal Code (XLV of 1860)]. Solicitors: Theodore Goddard & Co. Solicitors: Chas Russell & Co. Date of hearing: 29th November, 1956. JUDGMENT LORD SOMERVELL OF HARROW.------The appellants were charged with two offences; first conspiring to obstruct the course of justice contra section 110 (a) of the Penal Code; second retaining property feloniously stolen contra section 311 (1) of the Penal Code: this appeal is concerned with the conspiracy charge. The first appellant is described in the charge as wife of the second appellant, and both as Ismaili Khojas. At the end of the evidence for the prosecution it was submitted for the defence that the accused being husband and wife could not be guilty of conspiracy. It was submitted that the rule of English law to this effect applied to the appellants. This raised two issues. First whether under provisions of the law of Tanganyika to be referred to later this rule of English criminal law was applicable in Tanganyika; second whether if it was applicable it applied to the appellants whose marriage was, it is now conceded, potentially polygamous. The…