MUHAMMAD AMIN Burr, J.-Bahadur son of Roora, caste Muslim Sheikh aged 38 years, resident of Shabi Mohallah, Lahore, was tried by the learned Additional Sessions Judge Lahore, under sections 302, 326, 324, P. P. C., for having caused the death of Mst. Baby aged about 3/4 months and having also caused grievous and simple hurts by throwing acid on Mst. Naziran alias Surriya, Mst. Salma, Muhammad Riaz and Muhammad Hanif. By his judgment dated 19-3-1976 the learned Additional Sessions Judge found the appellant guilty of the offence of murder under section 302, P. P. C. And convicted and sentenced him to death under section 302, P. P. C. He was also fined Rs.
2,000 or in default of its payment to suffer R. I. For a period of two years. By the same judgment the learned Additional Sessions Judge found him guiity of the offence of causing grievous hurt to Mst.
Naziran and was sentenced to undergo 10 years' rigorous imprisonment and a fine of Rs. 2,000 or in default to suffer further R. I. For two years. The appellant was also convicted under section 324, P. P.
C. On two counts for causing injuries by throwing acid on the persons of Muhammad Hanif and Riaz and sentenced to undergo R. I. For a period of one year on each count. Murder Reference No. 21 of 1977 made by the Additional Sessions Judge under section 374, Cr. P. C. And the Criminal Appeal No. 475 of 1976 filed by the appellant are being disposed of by this judgment.
2. The prosecution case briefly stated is that Muhammad Ashraf son of Karam Elahi, complainant P.
W. 7, of Shahi Mohallah, Lahore. Occupied a Kotha where his wife Mst. Naziran alias Surriya is engaged in the profession of dancing. The complainant made a statement before Muhammad Sharif S. I., P. W. 11, of P. S. Tibbi, Lahore at about 12-10 a. m. In Chowk Tibbi on 28-12-1972 that at about 11-45 p.m. That night Bahadur appellant holding a "donga" in one hand and a plastic bottle in the other entered the room where Mst. Naziran P. W. 9 holding Mst. Baby in her lap, Mst. Salma, Muhammad Ashraf, Muhammad Riaz and Muhammad Hanif P_. Ws. Were sitting, and shouted that TUMHAIN MUKHBARI KA MAZA CHAKHATA HOON The appellant threw acid on Mst. Naziran and Mst. Baby deceased. Muhammad Hanif P. W. 8 and Muhammad Riaz P. W. 11 received injuries during the occurrence. Mst. Salma a real daughter of the sister of Mst. Naziran P. W. 9 was also injured but she was not examined.
3. After throwing the acid the appellant tried to run away but was overpowered by the complainant, Riaz and Hanif P. Ws. Along with the bottle and donga from which the acid had been thrown. The complainant and Muhammad Hanif P. W. 8 were taking Babadur appellant to the Police Station where they met Muhammad Sharif S. I. P. W. 11, who recorded the statement Exh. P. A.
Of the complainant and arrested the appellant. The Investigating Officer took into possession dhoti P. 1, containing acid burns vide memo. Exh. P. B. Muhammad Hanif P. W. 8 and Muhammad Ashraf complainant witnessed the recovery of dhoti P. 1 After preparing the injury statement of Bahadur appellant the Investigating Officer proceeded to the place of occurrence and took into possession donga P. 2 and bottle P. 3 vide memo. Exh. P. C. He also took into possession a chaddar P. 4 vide memo. Exh. P. D. On which Mst. Surriya P. W. Sat during the occurrence.
4. The prosecution examined Muhammad Ashraf complainant P. W. 7,. Muhammad Hanif P. W. 8, Mst. Naziran P. W. 9, Muhammad Riaz P. W. 10 and Muhammad Sharif S. I. P. W. 11, apart from Feroze Din, A. S. I., who recorded the formal F. I. R. Exh. P. A./1 on the basis of the statement of the complainant recorded by Mubammad Sharif S. I., P. W. 11 in Chowk Novelty at 12-10 a.m., Noor Khan P. W. 2, who took the dead body of the deceased to the mortuary, Inayat Ullah P. W. 3 who kept in safe custody the sealed parcels containing clothes which were stained with acid, Kalim Ullah P. W.
4 who proved the delivery of the three sealed parcels to the Chemical Examiner intact and Muhammad Yaqoob P. W. 6, the draftsman who had prepared the site plan of the occurrence.
5. The motive for the offence as alleged in the F. I. R. Is that the appellant suspected the complainant and his wife to have passed the information which led to the raid by local police which resulted in arrest of the appellant with his women. This annoyed the appellant who wanted to avenge the insult and teach a lesson to the complainant and his wife.
6. In his deposition Dr. Sabir Ali, Deputy Medical Surgeon, Punjab, Lahore P. W. 5 stated that he conducted the post-mortem examination on the dead body of Mst. Baby deceased which was brought by Noor Khan F. C. No. 1679 and identified by Muhammad Riaz and Salim. He found rigor marlis all over and p. m. Staining on back. . Her nails were pale. There was no ligature mark around the neck. He found the following injuries on the person of Mst. Baby deceased : "Superficial burnts all over the face,-sides of head, top of head and on the both ears. Skin was found peeled at places. The area underneath was read in colour. Both the hands, forearm, indistal half were burnt. Skin was yellowish colour.
The brain was congested. On opening thorax both the lungs were found congested. The right heart contained blood and the left was empty. On opening the abdomen stomach was found full of semi-digested milky diet. The small intestines contained chyme and the large one faeces. The liver, spleen and kidneys were congested. The bladder was empty."
The doctor expressed the opinion that the burns were caused by some corrosive agents and were ante-mortem and were sufficient to cause death in the ordinary course of nature. The cause of death was shock. The probable time that elapsed between injury and death was few minutes and between the death and post-mortem was within 24 hours.
7. On the same day. The same doctor at 9-50 a.m. Examined Riaz son of Barkat P. W. 10 and found the following injuries on his person :
(1) Skin of the lower 1/3" of the right forearm and back of hand including the fingers were red and swollen, termis was peeled out at places, under surface was red and margins were burnt.
(2) Burn marks 1/6" x 1 /6' front mid routs of neck.
(3) Burn marks 1/6' x 1 /8" on the right cheek.
On the same day Dr. Sabir Ali, also examined Muhammad Hanif son of Khurshid Ahmad P. W. 8 and found the following injuries on his person:
(1) Scattered burns in an area 5 -- " x 2 -- " on the back of the left arm superficial.
(2) Burn marks 1/4" x 1/6" on the left cheek.
The doctor expressed the opinion that the injuries were simple caused by some corrosive agents within the probable duration of 12 hours.
8. Mst. Surriya was examined by Dr. Fida Hussain M. R. O. Mayo Hospital, Lahore, who found as many as seven burns on - her person. His report Exh. D. D. Was proved by Abdul Ghani P. W. 15 before the trial Court.
9. Bahadur accused was also examined by Dr. Sabir Ali P. W. 13 at 4-40 p.m. On 28-12-1972 and found that distal halves of the left thumb, left index finger and nail of left middle finger was of yellowish colour, right thumb and index finger, was also of yellowish colour. He expressed the opinion that as the colour was not washable, it was caused by some chemical agents.
10. In his statement under section 342, Cr. P. C. Before the trial Court the appellant admitted his previous arrest by Javed Bajwa, Inspector Police in a surprise raid. He denied the suggestion that he suspected Muhammad Ashraf complainant about his arrest and explained that such arrests were generally made in the Heera Mandi.
11. He denied having thrown acid on Mst. Salma, Mst. Baby deceased, Riaz and Hanif on 27-12-1912 and claimed to be innocent. He also denied that he was caught red-handed in the dancing room of Muhammad Ashraf. He further denied the ownership of chaddar P. 1 and claimed that it had been planted by the police. The appellant asserted that he had been falsely implicated in the case due to professional rivalry. He contended that the complainant wanted to purchase a house under his possession as a tenant and got this false case registered against bim so that he may be forced to leave the possession. According to him on a day before the occurrence there was quarrel in the dancing room of Ashcaf complainant between his associates and some tamash been and that some unknown person threw the acid on the deceased.
12. In his statement before the trial Court Muhammad Ashraf complainant P. W. 7 supported the prosecution story as stated in the F.
1. R. And explained that when acid was thrown on his wife and child he overpowered Bahadur appellant red-:handed at spot with the help of Riaz and Hanif. While Riaz, Mst. Naziran and Salma along with Mst. Baby deceased were taken to Mayo Hospital in a taxi he and Hanif took Bahadur appellant to the Police Station when they met Muhammad Sharif S. 1. In Novelty Chowk where the S. I. Recorded his statement, which was forwarded to the Police Station where a formal F. I. R. Exh. P. A./1 was recorded. He explained that one memo of recovery was prepared in Chowk Novelty and two memos *of recovery were prepared by the police in the Kotha of the complainant. He was subjected to lengthy cross-examination but the defence was unable to get anything of substance from him. He denied that there had been any quarrel with any tamash been a day before the occurrence and likewise denied the suggestion that he desired to purchase the house in which Bahadur appellant resided. Muhammad Hanif P: W. 8, Mst. Naziran alias Surriya P. W. 9 and Muhammad Riaz P. W. 10 appeared to support the prosecution story. They were all subjected to lengthy cross-examination but the defence was unable to get anything of substance in its favour.
13. Before us the learned counsel for the appellant in the first instance attempted to argue that no arrest in point of fact was made at the spot and that having thrown acid on his victims the assailant made good his escape and both the donga and bottle containing acid had open and wide mouth and the appellant took hardly any time to throw the acid. He contended that the appellant carried sulphuric acid and nobody could possibly dare to apprehend the assailant so as to overpower him. There is nothing on record to support this contention.
14. It is hardly disputable that Bahadur appellant was produced before Muhammad Sharif S. 1. At 12- 10 a.m. And was handed over to the Investigating Officer in the Novelty Chowk where the statement of the complainant was recorded and a formal F. I. R. Was recorded at 12-15 a.m., i.e. Barely five minutes thereafter. It is inconceivable that in anticipation of the acid being thrown on the five persons the complainant had detained Babadur appellant and thus produced him before the police within minutes of the occurrence. The statement of Dr. Sabir Ali P. W. 5 shows that Mst.
Naziran, P. W. Mst. Baby deceased, Mst. Salma and Riaz and Hanif P. Ws. Received burns and leaves no room for doubt that the five victims were injured around the time alleged by the complainant and were medically examined soon thereafter.
15. The learned counsel for the appellant asserts that Muhammad Hanif P. W. 8 has a weak eyesight and he could not have possibly recognised Bahadur appellant as he threw acid. The argument, however, overlooks the positive assertion in the F.
1. R. And the statement of the complainant and the eye-witnesses that the complainant, Riaz P. W. 10 and Hanif P. W. 8 all the three of them overpowered the appellant and while Hanif P. W. 8 and Ashraf complainant undertook the responsibility of taking the appellant to the Police Station Riaz P. W. 10 accompanied Mst. Naziran P.
W. 9, Mst. Salma and Mst. Baby deceased to the Mayo Hospital. Once that Bahadur had been overpowered by the three persons Muhammad Hanif P. W. 8 could have no difficulty to escort him, even if he had a weak eyesight. It is evident that the accused threatened to teach his victims a lesson . For "Mukhbari". Hanif P. W. 8 could have recognised him from his voice also. His cross- examination, however, revealed that although his eyesight is somewhat weak it is not very weak either. However, we feel that even if the person were completely blind he could have still assisted the complainant and Riaz P. W. 10 in apprehending the appellant and in escorting the over- powered accused to the Police Station. In this case, however, we feel that there is no room for doubt about the fact that Hanif was in a position to identify the appellant.
16. The learned counsel for the appellant further contended that there was no mark of any injury on the person of the appellant which one would normally expect on a person trapped under such circumstances. He maintains that the appellant is not alleged to have made any attempt to escape and is shown to have accompanied the complainant and Muhammad Hanif P. W. 8 like a lamb without any protestation nor attempted to get out of their custody.
17. The medical evidence is silent on this point. However, the common colour of skin (yellowish) of the deceased and the right thumb and the index finger of the appellant does indicate that his left thumb and index finger got burns during the process of throwing acid on the victims.
18. We are of the opinion that the defence has not been able to make out any case to cast a reasonable doubt on the prosecution story or the complicity of the appellant with the commission of the offence of throwing acid on the deceased. The prosecution in our opinion has succeeded in proving its case beyond reasonable doubt..
19. In the alternative the learned counsel argued that even if it is assumed that the petitioner had committed the offence, his intention, according to the allegations in the F. I. R., was to "teach a lesson to the complainant and his wife for "Mukhbari" which resulted in a raid on the appellant and that the prosecution witnesses attempted to make improvements by stating that the appellant threatened to finish the complainant, his wife and children.
29. The learned counsel has drawn our attention to the fact that the appellant has been convicted for an offence under section 326, P. P. C., in regard to the injury caused by him on the. Mst. Naziran which had permanently disfigured her head and neck. He contended that the learned trial Court has not imputed to the appellant the intention to kill Mst. Naziran alias Surriya P. W. 9 and that the appellant was convicted under section 326, P. P. C. And not under section 307, P. P. C. According to the learned counsel the trial Court erred in arriving at the conclusion that appellant intended to kill Mst. Baby deceased. The learned counsel asserted that it was dead of night in the middle/end of December which in Lahore is peak of winter and the baby in the lap must ordinarily be covered by woollen clothes and even if she was not covered the appellant had hardly any time to notice the child to form an intention to kill her. The appellant threw acid on Mst. Naziran who was incidentally holding a baby in her lap. According to the learned counsel there was no rational basis for the assumption that in throwing acid while the appellant had 'no intention to kill Mst. Naziran alias Surriya P. W. 9 he had the intention to kill Mst. Baby. The learned counsel for the appellant contended that in the present case on the contrary the evidence indicates that Mst. Naziran was sitting and not standing which could have made the child more visible and that in any case the injury on the person of the deceased (baby) would be incidental to the injury on the person of Mst.
Naziran who appears to be the main target of the appellant. He contended that it was difficult to reconcile the finding of the learned Additional Sessions Judge that in the course of throwing acid while the appellant could not be held to have even attempted to cause the death of Mst. Naziran he could be guilty of having carried the intention of causing the death of the Baby deceased who accidentally got burns as a result of the same act. He asserted that under the circumstances the intention to kill cannot be reasonably drawn out from the evidence led by the prosecution.
21. The learned counsel for the appellant tried to explain the decision of this Court in Ghulam Nabi v.
The State (PLD 1957 Lah. 109). In that case the accused in an attempt to commit theft put mud in the mouth and nose of the victim a child barely six years old in order to prevent her from shrieking while he was removing her ear-rings. A Division Bench of the Court held that the mere fact of absence of intention to cause death does not take an act out of the purview of the offence of murder. The Court also held that if an ordinary person must know that an act is so imminently dangerous that it will, in all prabability, cause death or such bodily injury as is likely to cause death an accused per- on charged with, the doing of such an act will be presumed to have that knowledge unless he can prove that he is deficient in such knowledge. The learned counsel for the appellant did not contend that the judgment was erroneous in any manner. In order to distinguish the case he relied on the following observation appearing in the law of Crime by Ratan Lai, Eighteenth Edition, page 696 : "Knowledge is a strong word and imports a certainty and not merely a probability. The knowledge referred to in this section and section 300 is the personal knowledge of the person who does the act. If a man intentionally commits an offence, and consequences beyond his immediate purpose result, it is for the Court to determine how far he can be held to have the knowledge that he was likely by such act to cause the actual result. If such knowledge can be imputed, the result is not to be attributed to mere rashness ; if it can not be imputed, still the willful offence does not take the character of rashness because its consequences have been unfortunate.
The observations of the learned author do deal with some of the principles underlining the provisions of section 300, P. P. C., that there is nothing in the passage relied upon by the learned counsel to show that "intention to kill" is an essential ingredient of the offence of murder. Even the passage relied upon by the learned counsel supports the proposition that it is for the Court to determine how far the accused can be held to have the knowledge that he was likely by such act to cause the actual result. The learned counsel was unable to satisfy us that the action of the appellant was not so imminently dangerous that it will in all probabilities cause death or such bodily injury as is likely to cause death. We are no persuaded to agree that the appellant did not or could not have possessed the knowleged that his action in throwing concentrated sulphuric acid could have caused the death of any of his victims.
22. In our opinion the case falls under clause fourthly of section 300 of the Pakistan Penal Code and the intention to kill is not relevant. In Rahman Samaila v. Emperor (AIR 1939 Lah. 245) it was held that where an act is done without any intention to kill a particular person but with such utter disregard of consequences that there is imputable knowledge that death is an extremely likely contingency, it will fall within clause fourthly of section 300, P. P. C. Clause fourthly comprehends generally the commission of imminently dangerous acts which must in all probability, cause death or such bodily injury as is likely to cause death when such an act is committed. According to the decision in Ghulam Nab! v. State (PLD 1957 Lah. 109) the person committing such an act will be presumed to have knowledge unless he can prove that he is deficient in such knowledge. Nothing has, however, been brought out to displace the presumption of such knowledge in this case.
23. In the case reported as Muhammad Ali v. Ahmad All (PLD 1974 SC 51). The Supreme Court held that the fourth clause of section 300, P. P. C. Clearly contemplates that if a person committing the act resulting in the death knows that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, then the offence committed will be murder if the act is done without any excuse.
24. In the present case the action of the appellant in throwing Sulphuric Acid on Mst. Naziran alias Surriya P. W. 9 and Mst. Baby. Riaz and Hanif P. Ws. Was an act which was committed with the knowledge that it was so imminently dangerous that it could cause the death of the persons on whom the acid fell. That it did not cause the death of Mst. Naziran P. W. 9 who appeared to be the primary target of the appellant is hardly of any consequence. Under section 301, P. P. C. Where a person does an act with the knowledge that it is likely to cause death commits culpable homicide by causing the death of any person whose death he neither intends nor knows himself likely to cause, the culpable homicide so committed would be of the description of which it would have beets if he had caused the death of the person whose death he knew himself to be likely to cause.
25. We are not inclined to comment on the propriety of the conviction of the accused under section 326, P. P. C. Instead of section 307, P. P. C. In regard to the injuries caused to Mst. Naziran. However, we have n hesitation in holding that the act of the appellant resulting in the death of Mst. Baby is squarely covered by clause fourthly of section 300 read with section 301 of the Pakistan Penal Code.
In view of the nature of t attack, the action of the appellant amounts to murder even if the appellant had no intention to cause the death of Mst. Baby deceased.
26. In the result, we dismiss the appeal and . Confirm the sentence of death awarded to the appellant.