The first informant in this case, one Sher Muhammad son of Abdul Rashid, resided at the material time in Sukkur along with his wife Mst. Siddiqan whose death has given rise to the present case. He has a daughter, Msr. Tajeran by name, and also a son, Sher A.I, who at the relevant time was only about nine years of age. Tajeran is married to the appellant who himself was also residing with his father-in-law as what is described in Sindhi as "char Jarato", that is, a son-in-law lives with his father-in-law and has not set up house separately with his wife. Besides this son and daughter, Sher Muhammad had another daughter named Hajran and also another son, older than Sher A.I and named Anwar Al', but since the former was married and lived with her husband while the latter is alleged, upon the day of the incident, to be absent from the house and engaged in his usual labour, these two are not a part of the story with which I am concerned in the present case.
2. Although the appellant was living since his marriage with his father-in-law in accordance with the arrangements which I have described it appoars from the evidence that, some little time before the incident, he had expressed his desire to set up house on his own but that up to the time of the incident he was still living in the house of his father-in-law. There is some small discrepancy in the evidence upon the reason for this. According to Sher Muhammad he had not opposed his son-in-law's desire to live separately but had pointed out that, since he has been working till then in the shops of various sweetmeat makers and had only recently started his own business, he should wait until he was fully settled in his business and that the appellant had agreed to this. He adds, however, that thereafter some times he used to stay out of the house altogether at night and sometime returned only in the late hours of the night. According to Tajeran, his wife, the appellant has been insisting upon their living separately and, relying upon the marriage agreement, both she and her father had resisted this. The variation is minor and the appellant himself admits that at the time in question he was living with his father-in-law and it is quite safe to conclude I think, that although he may well have wanted to shift and that possibly there was even some disagreement up to the time of the incident he continued to live with his father-in-law.
3. On the day before the incident, that is to say, on the 5th February 1970, while the appellant was not at home, it is alleged that Moeenuddin, a younger brother of the appellant, came to the house requesting that, since in their own house some guests had come on account of the betrothal of his sister, Alt. Tajeran should accompany him and lend a helping hand in the work. Tajeran apparently was fevering on that day and consequently both she and her father said that she could not then come but that as soon as she was better she would certainly do so and the evidence indicates that she promised to do so the next day. Moeenuddin then went away and it is nobody's case that, at that time at any rate, there was any altercation or quarrel on account of the refusal of Tajeran to accompany her brother-in---law; indeed in a sense there was no refusal but an expression of inability to comply with the request immediately and a promise to do so as soon as she was well enough. That night, according to the witnesses, the appellant came home late, that is about 1-00 a.m., and passed the night in his room which is apparently on the upper floor. It is not stated so in express terms but, since elsewhere the witnesses had stated that even though he sometimes used to come late or be absent from the house altogether at night, when he did sleep the night in the house it would be along with his wife in the same room. In the context therefore I take it that the witnesses mean that this particular night also he spent in the usual fashion in the room allotted to himself and his wife. In the morning he came down and asked his wife to explain why she did not accompany his brother to the latter's house. Tajeran explained the circumstances on which account it is said that he abused her and gave her a slap. Tajeran's mother the deceased Siddiqan, then tried to intervene and tire appellant gave her a blow also causing her to fall. At this time Sher Mohammad was in his shop, which is adjacent to his own house, and. His sort Sher A.I, who helps him at the shop and is, therefore, constantly going from the house to the shop and vice versa and who at that particular time happened to be present in the house, ran up to inform the father. Sher Muhammad naturally hurried back to his house and, according to himself, saw the appellant throwing Ms!. Siddiqan on to the cot and when he, that is to say, Sher Muhammad, protested the appellant gave him fist blows also. Can their cries two neighbours named Fakhroo and Subhan are then stated to, leave come, intervened and rescued Sher Muhammad from the appellant who then went away. It would be convenient to mention here that neither pukhroo nor Subhan have been examined as witnesses although their statements were recorded in the course of the police investigation.
4. According to the prosecution, Mst. Siddiqan after she had been given blows by the appellant had become unconscious and accordingly a doctor, named Dr. Kidwai, was called in but he declined to treat her saying that she should be taken to the hospital.
5. The elder brother of the appellant, Siddique by name, then brought one Dr. Anwar though the evidence does not disclose when and how Siddique came up. This doctor gave an injection to the deceased and expected that she should recover consciousness in about two hours but, when she showed no sign of improvement, she was taken to the Civil Hospital, Sukkur, where she died at 6-30 p.m. That very day. Doctor Nurul Huda of the Civil Hospital then informed the police and it rather seems that it was oil account of his having informed the police that eventually the first infor--mant lodged a first information report upon the 8th of February 1970 at 4-15 p.m. That is to say, after two days. He himself admits that he lodged the report only after two days but whether it was at the insistence of the police or otherwise, there is a little doubt and I shall discuss the matter in its proper context.
6. On 8-2-1970 the first informant, anyhow having lodged a first infor--mation report at 4-15 p.m., it was recorded by the then S. H. O., P. W. A.I Azam who according to himself proceeded to the scene, of which he prepared a mashirnama. It should be added, however that even before the first information report was lodged the S. H. O. On receiving the message from the Civil Hospital that the deceased had died, had gone to the hospital and prepared an inquest report of which nothing more need be stated at this stage than that the corpse bore no external mark of any injury. Even so he made a written request to the doctor asking him to carry out a post-mortem examination. An investigation ensued but nothing seems to have transpired in that investigation which calls for mention except that the statements of Fakhru and Subban, whom I have mentioned earlier, were recorded and that on 20-2-1970 statements of the witnesses Sher A.I and Mst. Tajeran were recorded under section 164, Criminal Procedure Code. If these were recorded to safeguard against the danger of their going back upon their statements already made to the police I should have thought that such a step should have been taken much earlier than the 20th. Be that as it may, the police then sent up the appellant in the Court of the City .Magistrate and Sub---Divisional Magistrate, Sukkur on the 23rd February, from where he was committed to the Court of Session, Sukkur. An Additional Sessions Judge of that Court then tried him on a charge under section 304 (II) of the Pakis--tan Penal Code out ultimately came to the conclusion that he Was guilty only under section 323 of the Code and sentenced him to R. I. For six months and to pay a fine of Rs. 500 or in default thereof further R. I. For three months. It is this conviction and sentence that the appellant has appealed against. While admitting the appeal to regular hearing a learned Judge of this Court thought that the offence would fall under the second part of section 304, Part II of the P. P. C. And also that the sentence might call for enhancement and he therefore, issued notice to the appellant to show cause why a retrial of the case for the offence under section 304 (II), P. P. C. Should not be ordered and also against enhancement of sentence. While hearing this appeal, therefore, I have also heard learned counsel for the appellant upon these matters.
7. Now upon the question as to exactly what happened on the 6th, the prosecution has examined the first informant Sher Mohammad, Mst. Tajeran and Sher A.I who are the husband, daughter and son respectively of the deceased. There does not appear to me any reason to doubt the evidence of these witnesses. The incident took place in their own house and Tajeran would naturally be there; Sher Mohammad, no doubt, would normally be expected to be at his shop but it is to be remembered that the shop is immediately outside and adjoining his own house and his coming up, there--fore, immediately is not incredible. Taking into account also the fact that Sher A.I is only nine years of age and was, therefore, helping his father at the shop; his running into the house and out of it repeatedly is by no means unworthy of belief. The story which these three witnesses gave is consistent, although in very minor matters slightly different. Tajeran herself says that after her husband had demanded an explanation for her not having accom--panied his brother the earlier day he abused her and gave her a slap and when her mother intervened to rescue her the appellant caught her, that is the mother, by the throat and fell her down on the ground. Now this allegation with regard to the appellant catching the deceased by the throat is made by no one else. It is possible of course that Sher A.I may not have seen the whole incident although he claims to have done so and it is equally clear that the father Sher Mohammad could not have witnessed the entire incident inasmuch as he came into the house only when Sher A.I informed him. All he says is that he saw the appellant throwing Mst. Sadiqan on to the cot but regard being had to the fact that he is supposed to have been given a full account by his daughter Tajeran and that he did not mention in the F. I. R. Even though it was lodged two days later that Tajeran said anything to him about the appellant having caught his mother-in-law by the neck, this may perhaps be regarded as a little embroidery and, as it is, in the circumstances of this particular case it really makes no material difference. Sher A.I no doubt also says that the appellant caught her by the neck but he is a child of nine years of age and in fact the learned Judge did not administer an oath to him as he did not feel that he was old enough to understand the sanctity of an oath. As to the main incident, however, namely, that the appellant did push her or throw her on to the cot there can be little doubt. The appellant's own statement under section 342, Cr. P. C. Both in the committal Court and in the Sessions Court expressly admits this although according to him it was the deceased who tried to assault him after having abused him and that is why he had to push her aside. Whatever the circumstances therefore, which led up to the incident the broad fact that the appellant did give her a push and that she did fall down on the cot becoming unconscious is not really disputed.
8. A small question as to the probability of the incident having occurred upon the sixth did arise in my mind; admittedly the appellant had spent the previous night in his own room and it seems surprising that he -would not during the night tax her with her failure to accompany his brother and to reprimand her rather than wait for the next morning. This has not been explained and might possibly be due to the fact that he had come home quite late in the night and gone immediately to sleep or it is the wife who was already asleep. It is unnecessary, to my view, to speculate upon this question since the fact of the occurrence having taken place on the sixth is so well established a fact.
9. That there was delay of an inordinate and unexplained nature between the incident and the lodging of the F. I. R. Admits of no dispute whatever. The incident took place at 7-45 a.m. In the morning and it is true of course that the deceased, not bearing any marks of injury on her person, the matter was not thought serious enough to be worth reporting. But at least from the time that she died, namely, 6-30 p.m. That explanation does not hold water unless the death was natural.
The first informant explains that on account of the shock that he has received by reason of the death of his wife he was not in his proper senses and not until the 8th, therefore, did it occur to him to lodge the report. The police officer, A.I Azam, states that the first informant was too busy in arranging the funeral ceremony but, perhaps, realizing the futility of this explanation, he adds that he himself had asked him to lodge the report. All in all it does seem that the prosecution witnesses did not think the matter serious enough for reporting and did not connect the death with the assault and as I shall show there was good reason for not connecting it but that the police officer, having himself received a report of the death from the doctor, and having asxed him to perform a post-mortem examination, thought it right that .a F.
1. R. Be recorded. I have of course given my most anxious consideration to the fact of this extraordinary delay but have come to the conclusion that in the present case it cannot affect the conclusions of fact that must be reach is after all not the law that all cases of belated first reports must be necessarily treated as being false arid the essential facts as to what happened upon the sixth has, as I have stated earlier, been so clearly established and virtually admitted by the appellant that I think any further reference to the delay in the F. I. R. Would serve no real purpose.
10. Now the facts of the case as I have narrated them show clearly that, if death had not occurred, there would be no question in the present case of any offence graver than one under section 323 of the Pakistan Penal Code. For the purpose of persuading me, however, that the present was a case of culpable homicide the prosecution rely upon Explanation I to section 299 of the Penal Code which reads this: "A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death."
I quite agree that if a person is suffering even from so serious a disease and is in such an acute condition that his death may be expected momentarily, even then if somebody shoots him or inflicts a knife injury upon him or even a much more trivial injury which, however, hastens the death then, by howsoever short a period the life of the victim is reduced, Explanation I would come into play. But what is the evidence upon which it is claimed that the injury in question in any manner contributed to the death? Of course even if it did the question would also have to be examined whether in the language of section 299 the appellant acted "with the knowledge that he is likely by such act to cause death" for the ordinary consequences of what he is alleged to have done would certainly not have been death. Dr. Noorul Huda who first saw the deceased at the Civil Hospital when she was alive described the condition in which she was in these terms: "On 6-2-70, I was working Sub-Charge at D. H. Q. Hospital, Sukkur. On that day at 12-00 noon Mst.
Siddiqan who Sher Mohamed was admitted as in-door patient in unconscious state and in serious condi--petition. 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--petition. 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 (PLD 1954 FC 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 (PLD 1955 FC 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--petition 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--petition 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 anomaly 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.