BASHIRUDDIN AHMAD, C. J.--Khanwada (30), Pio Khan (48) and Gulat Khan (45) were tried for the murder of Shahadat Khan in furtherance of their common intention, on 19-2-68 by the Additional Sessions Judge, Kohat, who acquitted Pio Khan and Gulat Khan. He convicted Khanwada under section 304 (II), P. P. C., and sentenced him to undergo R. I. for a period of 10 years.
2. The convicted person appealed and a learned Single Judge ordered on 13-8-'69 that a notice be issued to Khanwada to show cause why the sentence of imprisonment awarded to him be not enhanced. We propose to dispose of the appeal and the suo motu Criminal Revision (No, 189-A of 1969) by a Single judgment.
3. The facts of the case, shortly stated, are that the deceased had beaten his daughter-in-law, Mst.
Lalzo, who is the sister of the appellant. She left the house of the deceased and went to the house of her brother. Eight days later, the deceased accompanied by his wife, Mst. Lal Sima, went to the house of the appellant at morning meal time to bring back Mst. Lalzo to his house. The house in which the appellant lived is at a distance of about 50 to 100 paces from the house of the deceased.
Mst. Arab Jan, a daughter of Shahadat Khan, is married to the appellant. Mst. Lal Sima called out Khanwada who along with the acquitted accused came out of their kothas which are in the same compound. The appellant was armed with a tamacha while his companions were empty-handed.
Pio Khan and Gulat. Khan caught hold of the deceased by his arms, while the appellant fired at the deceased with his .12 bore pistol. Shahadat Khan was wounded on the right side in front of the abdomen and fell down. Mst. Lal Sima ran outside the house and raised an alarm which attracted Mst. Khial Sima, another daughter of the deceased, who is married to Mirzaman. She was present at the house of Sherza Khan which is close to the house of the appellant. The deceased was still alive and he charged the appellant and his co-accused. The deceased was removed to his house, and in the way, Mst. Lal Sima came across Sahar Gul, Chowkidar of village Tani Banda, and informed him of the occurrence. He went and lodged a report at Police Post Kahi, 200/300 paces away, at 13- 40 hours. The statement (Exh. P. A/1) was recorded by A. S. I. Muhammad Ayaz Khan (P. W. 5) who entered it in the daily diary at serial No, 7, dated 19-2-68. He informed Hangu Police over the telephone and M. H. C. Abdul Hamid (P. W. 3) recorded the formal F. I. R. (Exh. P. A) at Police Station, Hanga at 15-10 hours on the same day.
4. The case was investigated by Sub-Inspector, Muhammad Rafiq Khan (P. W. 11) who went to the spot, prepared the site plan and recovered two cardboards from point No, 1 which is inside the courtyard of the appellant where the deceased had been put to death. The appellant produced .12 bore pistol (P. 1) along with two empty cartridges (P. 2) which were taken into possession and sealed into a parcel in the presence of Khial Zadin (P. W. 10) and Gul Baz (not examined). It may here be stated that the weapon of offence and the crime empties were submitted to the Ballistics Expert and he found that the two .12 bore empties marked Cl and C2 were fired from the .12 bore pistol in question. The appellant was arrested on 20-2-68.
5. Dr. Ahmad Saeed Khan (P. W. 1) performed the postmortem examination on the dead body of the deceased on 20-2-68 at 9 a.m. and found the following injuries on his person :- External Examination : Entrance wounds six in number circular 1/4" roughly in diameter on the right side of front of abdomen below the thorasic cage in the line of nipple. 'There was no charring mark.
Internal Examination Abdominal walls, peritoneum, pancreas, small and large intestines, liver and right kidney were injured. Stomach was full of semi-digested contents.
According to the doctor, death was due to shock and bleeding as a result of the injury to the abdominal viscera, and that death of the deceased could take place at any moment within one hour after infliction of this injury.
6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He also denied that he produced the crime empties and the weapon of offence before the police. He made a statement detailing the circumstances in which the deceased was fatally injured, and the same is reproduced below for the sake of convenience :-- "I was not present in my house at the time of occurrence. Mst, Lalzo was beaten by the deceased and she had come to my house and was living with me. On the day of occurrence, the deceased came to my house and wanted to take her by force and when she refused to go, he wanted to take away my wife Mst. Arab Jan who is his daughter by force. She also refused. Both the above ladies were threatened with a pistol by Shahadat Khan deceased and fight ensued and in the struggle, the pistol went off and the deceased was hit fatally. I was told this by the ladies when I returned to my house. The fight had ensued between the deceased and the two ladies mentioned above at my house in my absence. I am innocent and have been falsely charged."
Defence evidence was not called.
7. At the trial, Mst. Lal Sima (P. W. 6) deposed to the occurrence. She stated that on the eventful day, she accompanied her husband, Shahadat Khan deceased, to the house of the appellant in order to persuade their daughter-in-law, whom the deceased had beaten eight days before the occurrence to return to their house. Mst. Lal Sima called out Khanwada appellant who lived in the same compound with his uterine brothers Pio Khan and Gulat Khan in different kothas. The appellant and his co-accused came out of their kothas. Khanwada was armed with a tamacha while his co-accused were empty-handed. Pio Khan and Gulat Khan caught hold of the deceased by his arms, while the appellant fired with .12 bore pistol at the deceased who was hit and fell down to the ground. Mst. Khial Sima proved the oral dying declaration made by the deceased in her presence and deposed that she was attracted to the spot on hearing a fire shot and the alarm raised by her mother. When she reached the house of the appellant, she found her father lying injured on a cot. The appellant and his co-accused were present there. Mst. Arab Jan and Mst.
Lalzo were also there besides Mst. Lal Sima. The witness continued that her father had told her that the appellant had fired at him while the other two accused had caught hold of him. The witness did not state to the police that her father told her that Pio Khan and Gulat Khan had caught hold of him. She did not mention to the police that when she reached the house of Khanwada appellant, she found Pio Khan and Gulat Khan also present there.
8. The trial Judge believed that the deceased along with Mst. Lal Sima had gone to the house of the appellant in order to persuade him to send his sister, Mst. Lalzo, to their house and was killed there.
He repelled the argument that the deceased had made forcible entry into the house of the appellant with a view to bring back not only Mst. Lalzo but also his own daughter, Mst. Arab Jan, who is married to the appellant. The trial Judge found that there was no evidence or even a suggestion to the effect that the deceased forcibly entered the house of Khanwada or that he used criminal force to the ladies whom he wanted to take to his house. The recovery of the weapon of offence and the crime-empties from the possession of the appellant was taken as a corroborative of the statement of Mst. Lal Sima, the widow of the deceased, by the trial Judge. Since no part in the occurrence was proved to have been taken by Pin Khan and Gulat Khan, they were given the benefit of doubt and were acquitted.
9. The ocular evidence coupled with the recovery of the weapon of offence and the crime empties from the appellant were considered sufficient to hold the appellant to be responsible for the death of the deceased and we agree with him. The trial Judge, however, by a strange process of reasoning held that the offence committed did not fall under section 302, P. P. C., but under section 304, Part II of the Pakistan Penal Code. The reasoning which he gave in para. 12 of the judgment in coming to this conclusion is reproduced below in his own words :- "There was no previous enmity between the parties. The only friction between them was that the deceased adminis-tered beating to Mst. Lalzo, his daughter-in-law, i,e, the sister of Khanwada accused about eight days prior to the occurrence, as a result of which Mst. Lalzo came to the house of her above-mentioned brother. The deceased and Mst. Lal Sima had gone to the house of Khanwada accused on the day of occurrence for bringing back Mst. Lalzo or at least their daughter Mst. Arab Jan, the wife of Khanwada accused. Khanwada accused cannot be said to entertain any intention for committing the murder of the deceased in his own house. In my opinion, the case does not fall within the ambit of section 302, P. P. C., for want of the requisite criminal intention envisaged by that section, but comes within the purview of section 304, Part II, P. P. C. because Khanwada accused had committed culpable homicide not amounting to murder of the deceased since he had the knowledge that the pistol shot fired by him at the deceased was likely to cause his death without intending the same."
10.In coming to the above conclusion, the trial Judge made egregious mistake. He conveniently lost sight of the fact that the deceased was completely unarmed, and according to the finding of the trial Judge, he had not used criminal force in entering the house of the appellant, or to his daughter-in-law whom he wanted to take back to his house. In the circumstances, there was hardly any justification for the appellant to have fired at the victim with a .12 bore pistol in the abdomen which is the most volunerable part of the body. The evidence is that the mother-in-law of the appellant called him out and he came out of the kotha armed with a tamacha. There is nothing in the evidence to show that the firing resorted to by the appellant was preceded by any grappling. Illustration (c) to section 300, P. P. C. is in point and is reproduced below :-- "(c) A intentionally gives Z a sword cut or club wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here is guilty of murder, although he may not have intended to cause Z's death."
11.On the principle that a person intends the natural consequences of his act, the appellant should have been con-victed under section 302, P. P. C. In Ghulam Nabi v. The State the accused after removing the ornaments of a child stuffed earth in her mouth resulting in death. It was urged in that case that the offence did not fall under section 302 of the Code, as death was not an inevitable result if the mouth and nose of a person are stuffed and that it could not be said that the act of the accused was sufficient in the ordinary course of nature to cause death. In continuation, it was argued in that case that as the intention of the culprit was evidently merely to drown the shrieks of the child and not to cause death, the offence was not murder, but merely culpable homicide not amounting to murder. The Division Bench while repelling the argument observed :- "I will act on the assumption that the intention of the appellant was merely to prevent the child from shrieking, but the mere absence of intention to cause death does not take an act out of the purview of the offence of murder. Section 300 of the P. P. C., which defines the offence of murder has four clauses and if the act falls within any of them, it amounts to murder and is punishable with death or transportation for life under section 302 of that Code unless an exception applies to the facts. The first of the four clauses of the section says that if the act which causes death is done with the intention of causing death the offence amounts to murder, while the fourth clause is to the effect that if the act which causes death is known by the person who does it to be so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and the act is done without any excuse for incurring the risk of causing death or the bodily injury likely to cause death, the offence amounts to one of murder. It follows, therefore, that if the act of the appellant was fraught with the danger envisaged by the fourth clause of section 300 and the appellant had the knowledge that it was fraught with that danger, the case will fall within section 300 of the P. P. C., because none of the Exceptions was pleaded and application of none of them is established."
12.The trial Judge failed to realise the serious nature of the attack which was made by the appellant with a dangerous weapon on a vital part of the body, obviously intending to cause death or to cause such bodily injury which was sufficient in the ordinary course of nature to cause death.
We are, therefore, clear that the appellant was guilty of murder of Shahadat Khan. It is unfortunate that the Provincial Government did not file appeal against the acquittal of Khanwada of the charge under section 302, P. P; C.
It is settled law that the powers under section 439, Cr. P. C. cannot be exercised to convert a finding of even a partial or implied acquittal into one of conviction. Their Lordships of the Privy Council who dealt with the question in Kishan Singh's case approved the Allahabad view taken in the case of Emperor v. Sheodarshan Singh . The learned Judges of the Allahabad High Court in giving judgment in the aforesaid case observed as under :-- "Sheodarshan Singh was acquitted by the Sessions Judge of the offence of murder and we cannot in revision convert a finding of acquittal into one of conviction. The only method by which it would be possible to obtain a conviction of murder would be by an appeal by the Government against the acquittal."
Their Lordships of the Privy Council considered it a correct statement of the law and it was also observed, "It is indeed no more than a repetition of the provisions of the material sections of the Criminal Procedure Code".
13. We are now left to determine whether under section 423, subsection (1), clause (b), Cr. P. Code, it is open to us to convert the acquittal of the appellant under section 302, P. P. C. into conviction or change his conviction from section 304, Part II to section 304, Part I, P. P. C. and enhance the sentence to transportation for life in order to meet the ends of justice. Clause (b) of subsection (1) to section 423, Cr. P. C. runs :-1 2 3 "In an appeal from a conviction, (1) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial or (2) alter the finding maintaining the sentence, or, with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of section 106, subsection (3), not so as to enhance the same."
The effect of the words "alter the finding" occurring in clause (b) of subsection (1) of section 423, Cr.
P. Code, was considered in the case of Shera and others v. The Crown and their Lordships held :- "The words "alter the finding" cannot be taken to have been used in an unrestricted sense. The Appellate Court can alter the finding only if it maintains the sentence or reduce it. It cannot isolate the words 'alter the finding' and completely ignore the qualifications which make the alteration possible, that is, it must maintain the sentence or reduce it. Section 423 (1) (a) deals with appeals from order of acquittal. A finding of acquittal can be converted into a finding of conviction only under clause (a) of subsection (1).
Their Lordships of the Federal Court further observed that if under its wider powers of revision, the High Court cannot convert a finding of acquittal into one of conviction it seems to follow that it cannot do the same under section 423 (1) (b). The Allahabad case Re Muhammad Sharif and another v. Rex seems to be directly in point. Their Lordships came to the conclusion that where the accused who is acquitted of an offence under section 302, P. P. C., but is convicted under section 304 files an appeal against his conviction under section 304 and the Court issues a notice for enhancement of sentence, in exercise of its appellate jurisdiction coupled with its revisional powers, the High Court cannot convert the finding of acquittal under section 302 into one of conviction and enhance the sentence. In this very judgment, it was held that the Court had no power to alter the conviction under Part II of section 304 to one under Part I of the same section and at the same time to enhance the sentence.
14. We undoubtedly have got the power to reverse the conviction recorded under section 304, Part II, P. P. C. and order a retrial, but we do not propose to do so because Khanwada was only called upon to show cause in suo moto revision against enhancement of sentence and not to show cause why he be not retried. In the circumstances, there is no alternative for us, but to uphold the conviction under section 304, Part I, P. P. C. of the appellant and maintain the sentence. The appeal is dismissed. PLD 1957 Lah, 109 AIR 1928 P C 254 AIR 1922 All. 487 PLD 1954 FC 141 AIR 1950 All. 380