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Appeal No. 738 of 1954, decided on 30th November 1954, from the order of Syed Muhammad Abdul Latif Shah, Sessions Judge, Shahpur at Sargodha, dated the 10th September 1954.
S. 79‑"Mistake of fact" and "good faith" must at least appear from record of case if plea to that effect is not taken and established by accused.
Where circumstances of case on record militate against the existence of a mistake of fact and of good faith on the part of the accused, it is for the accused to establish that he acted under the influence of such mistake and in good faith, inasmuch as whether or not he was labouring under a misconception of fact is within such accused's special knowledge.
S. 300 Exception 4 ---"Sudden fight"‑Must be one to which person responsible for causing death was a party.
The sudden fight contemplated by the provisions of law relied upon by the accused must be a fight to which the person responsible for causing death was a party.
Ss. 34 anal 107‑Case not covered by S. 34‑Whether or. not accused was guilty of abetment depended upon whether he intentionally aided the other accused in perpetration of the crime.
The accused was grappling with the deceased and holding him by his hair when the other accused seeing the fight came up and stabbed the deceased which caused his death. Circumstances negatived the application of section 34, P. P. C. Whether the accused was guilty of abetment of murder depended upon whether he aided his co‑accused intentionally by holding the deceased by the hair, although such holding had to some extent facilitated the fatal attack on the deceased.
M. Sleem and Mazhar Saleem, for Appellants.
S. A. Mahmud, Assistant Advocate‑General, for Respon dent.
‑Taj Din, who was a gate‑keeper of Shah Jahan Theatre, Lyallpur, and Ghulam Hussain, who was a manager of that theatre, were tried by the learned Sessions Judge, Shahpur at Sargodha, under sections 302/34 and 324/34 of the P. P. C., for having, on the night between the 2nd and 3rd'of May 1954, caused the death of Feroze and an injury with a sharp‑edged weapon to Sher Muhammad at Sargodha with the result that while Ghulam Hussain was senten ced to transportation for life for the offence of murder, Taj Din was sentenced to death for that offence and to one year's rigorous imprisonment for the offence under section 324 P. P. C., which sentence was to come into effect only if the sentence of death imposed on him is not confirmed by this Court. Taj Din and Ghulam Hussain have preferred a joint appeal and Mr. M. A. Latif, Sessions Judge, Shahpur at Sargodha, who passed the above sentences, has referred the case to this Court under section 374 of the Code of Criminal Procedure for confirmation of the sentence of death imposed on Taj Din. The appeal and the reference for confirmation will be disposed of by this order.
The prosecution version of the incident was this. On the night between the 2nd and 3rd of May 1954 the theatrical company in which the two appellants were employed gave a show in the Taj Cinema at Sargodha. A singing girl, who was one of the members ‑ of the theatrical company, came to the stage to sing and when her singing was in progress Feroze deceased, who was sitting in one of the third class seats, wanted to give a rupee to her evidently to express his appre ciation of her singing. Ghulam Hussain went to the deceased and asked him to give the rupee to him but the deceased insisted that the singing girl should come to take the rupee. It appears that Ghulam Hussain did not like this attitude of the deceased and asked him if the singing girl was related to him at which the deceased told Ghulam Hussain appellant to shut up. The altercation led to a scuffle and Feroze deceased and Ghulam Hussain appellant caught each other by the hair. Suddenly Taj Din appellant, who was a gate‑keeper and was at a gate about 10 yards away, came running with a chhuri in his hand and caused injuries to Feroze deceased on the back. Sher Muhammad, who was with Feroze deceased, tried to intervene and Taj Din appellant caused him an injury on the back with the chhuri.
After the above incident Feroze, who was the driver of a motor truck, was taken to the truck‑stand. He was semi conscious but could not speak. His friends wanted to take him to the hospital but before that could be done he breathed his last. Muhammad Khan, manager of the truck‑stand, took Sher Muhammad to the Civil Hospital, Sargodha, where a doctor attended to him. Qurban Hussain, Assistant Sub -Inspector Police, on getting information about the incident in the cinema hall reached the hospital where he recorded the statement of Sher Muhammad which was registered as a first information report at about 3‑15 a.m. on the 3rd of May at Police Station City Sargodha. In this report the details of the incident, which have already been given, were mentioned and it was also said that the incident had been witnessed, besides the informant, by Ahmad and Muhammad Hayat, who were sitting in the cinema hall near the deceased at the time of the occurrence.
At the trial the prosecution version of the incident was supported by Sher Muhammad (P. W. 2), Ahmad Khan (P. W. 3) and Muhammad Hayat (P. W. 4), all three of whom, according to the first information report, were witnesses to the occurrence. Sher Muhammad (P. W. 2) gave evidence about the deceased wanting the girl who was singing to come to him and take a rupee, about the objection raised by Ghulam Hussain appellant, about the hot words that passed between the deceased and Ghulam Hussain appellant and about the attack by Taj Din appellant on the deceased and subse quently on himself. Ahmad Khan (P. W. 3) and Muhammad Hayat (P. W. 4) corroborated Sher Muhammad (P. W. 2) in all material details.
The appellants when questioned to explain the case against them denied the prosecution version and said that Feroze had a fight with some other persons but they had been implicated because the proprietor of the theatrical company in which they worked had filed a complaint against two police officers. No evidence was produced in defence.
Sher Muhammad (P. W. 2), Ahmad Khan (P. W. 3) and Muhammad Hayat (P. W. 4) are not shown to have any motive to falsely implicate the appellants and I can see no good ground for not accepting their version of the incident which led to the death of Feroze deceased and the receipt of injury by Sher Muhammad (P. W. 2). Sher Muhammad (P. W. 2) had a simple injury on his back and it can hardly be doubted that this injury was received by him in the manner deposed to by him, Ahmad Khan (P. W. 3) and Muhammad Hayat (P. W. 4). If the author of the injuries were anybody other than Taj Din appellant I fail to see why Taj Din appellant should have been named as the assailant. I would, therefore, hold that the injuries received by Feroze deceased and Sher Muhammad (P. W. 2) were caused by Taj Din appellant.
The post‑mortem examination of the dead body of Feroze deceased conducted on the 3rd of May 1954 at 11 a.m. by Dr. Muhammad Ashiq Chauhan (P. W. 1) disclosed the following nine injuries :‑
(1) A stab wound on the back left side in the outer upper part of the scapular. area, 3" x 1 ", bone deep. The super- aspinous part of the scapula was fractured.
(2) Oblique stab wound on the back, on the left side at the level of the lower angle of the scapula 3" from the middle line. It was 1 " x " and passed into the pleural cavity.
(3) Transverse stab, wound on the back left side, 1 " above the iliac crest and 3" from the middle line. It was 1 " x " and passed into the abdomen inside.
(4) Stab wound on the posterior fold of the left axilla, " x " x 1 ".
(5) Stab wound on the middle of the front of the right thigh " x " x 1".
(6) An abrasion 1 " x 2", on the front of the right knee.
(7) An abrasion, 2" x 1/3", on the middle of the right shin.
(8) The abrasions, " x ", each on the front of the left knee.
(9) Incised wound on the proximol part of the palmer aspect of the middle phalanx of the left middle finger.
On the 3rd of May 1954, Sher Muhammad (P. W. 2) was examined by the same doctor and was found to have a stab wound, simple in character, on the left side of his back. The doctor found that under injury No. 2 of Feroze deceased the chest wall was punctured, the left pleura was open, the pleural cavity being full of blood and huge clots and that the peritonium under injury No. 3 was also cut. The nature of injuries received by Feroze deceased can leave no manner of doubt that the person who caused them intended to cause the death of the victim.
The learned counsel for the appellant urged that even if Taj Din was the author of the injuries received by Feroze deceased he was not guilty of any offence because he acted in the exercise of the right of private defence of the person of Ghulam Hussain appellant. The argument was that as the deceased and Ghulam Hussain appellant started grappling with each other Taj Din considered it necessary to act in the manner he did lest the manager of the company that employed him should come to grief. Before Taj Din appellant can be held to have acted in the exercise of the right of private defence of the person of the other appellant it must be established that there was reasonable apprehension that if not promptly prevented the deceased would cause a fatal or grievous hurt because in that case section 100 of the P. P. C. would give Taj Din appellant the right to even voluntarily cause the death of Feroze deceased. The statements of Sher Muhammad (P. W. 2), Ahmad Khan (P. W. 3) and Muhammad Hayat (P. W. 4) prove conclusively that the grappling between the deceased and Ghulam Hussain appellant was not of a serious character and it must, therefore, be held that the blows given to the deceased were not dealt for the purpose of averting any serious harm to the person he was grappling with.
The next contention of the learned counsel for the appellants was that even if there was no reasonable apprehen sion of a fatal or a grievous hurt resulting to Ghulam Hussain appellant, Taj Din appellant was not liable for his acts because he honestly believed that circumstances which would make section 100 of the P. P. C. applicable existed. As an abstract proposition this contention is unassailable because in that case section 79 of the P. P. C., which enacts that nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it, will be applicable, but before the contention of the learned counsel can succeed it must be established that the conditions mentioned in section 79 of the P. P. C. were satisfied. If a person wants to escape liability for his acts on the ground that though the circumstances which would give him the right of private defence did not exist, and could not be believed by any reasonable person to exist, he in good faith believed that they did, he must point to some material on the record which would show that on account of a mistake of fact and in good faith he entertained the belief that he was entitled to use the force he did. In such a case the least such an accused person should do is to say that he was labouring under a mistake of fact. If, however, an accused person does not say that he believed, because of a mistake of fact, that he had a right of private defence he should not expect the tribunal dealing with his case to hold that he was labouring under such mistake. Whether or not an accused person was labouring under a misconception of fact is within his special knowledge and if he does not care to take the tribunal into his confidence, and the" circumstances militate against his having acted under a mistake of fact, he has himself to thank if the tribunal does not find that he was acting under a mistake of fact. If an accused person pleads that he was acting under a mistake of fact and the tribunal believes him, the next question that the tribunal is to consider is whether or not the belief was entertained in good faith as defined in section 52 of the P. P. C. I am aware that in criminal cases there is no such thing as pleadings as in civil cases and a person may be held to have acted in the exercise of right of private defence even if he does not plead to have done so, but I am of the view that where it is claimed for an accused person by his counsel that he acted in a particular manner because of a mistake of fact he believed that he had a right of private defence, the case is materially different from the one in which it is proved by the evidence on the record that the accused acted in the exercise of right of private defence but he pleads that he did not participate in the occurrence. If it is established that the circumstances were such that anybody in the place of the accused person would have in good faith believed that the exercise of the right of private defence was called for, though that belief may be a mistaken one, the mere absence of a plea of the accused that he under a mistake of fact in good faith, believed that he had a right of private defence would not be material but where, as in the present case, such a belief could not be entertained by any reasonable person it is for the accused, to establish that he entertained that belief. As I read the evidence on the record there was no occasion to believe that unless Feroze deceased was attacked in the manner that he was he would either kill or grievously hurt Ghulam Hussain appellant and I would, therefore, hold that the case of Taj Din appellant fell neither under section 100 nor under section 79 of the P. P. C.
It was also contended that as admittedly a fight was in progress between the deceased and Ghulam Hussain appellant the right of private defence of the person of Ghulam Hussain accrued to Taj Din appellant who had at worst exceeded that right and could not be held guilty of an offence of murder for causing the death of Feroze deceased, but, in my view, this argument too has no force. It was a trivial scuffle between the manager of the theatrical company and one. of the customers‑an incident of by no means uncommon occurrence ‑and the attack on the deceased by Taj Din appellant being entirely unwarranted can be held to be nothing but a pretence of acting in the exercise of right of private defence. If a person uses force which is, and which he knows to be, entirely out of all proportion to the harm either to himself or to another which he wants to avert, it may be safely presumed that his object was not to exercise the right of private defence but to intentionally cause to the victim the harm which ensues.
It was then contended by the learned counsel for the appellants that, at any rate, the attack on the deceased by Taj Din appellant was in the course of a sudden fight which developed from a sudden quarrel and, therefore, Exception 4 to section 300 of the P. P. C. being applicable the offence was not one of murder. I cannot bring myself to accept this argument because it appears to me that the sudden fight contemplated by the provisions of law relied upon by the B learned counsel for the appellants must be a fight to which the person responsible for causing death was a party. In the present case, Taj Din appellant was not a party to the fight which was proceeding between Feroze deceased and Ghulam Hussain appellant and Exception 4 to section 300 of the P. P. C. would, in my opinion, have no application. But even if Taj Din appellant be held to have been a party to the fight Exception 4 would have no application because the act of Taj Din appellant in stabbing the deceased would show that he had taken an undue advantage and acted in a cruel and unusual manner. I would hold, therefore, that for causing injuries to Feroze deceased Taj Din appellant was guilty of an offence of murder punishable under section 302 of the P. P. C. There is no ground to doubt the evidence with regard to Taj Din having caused an injury to Sher Muhammad (P. W. 2) and the conviction under section 324 of the P. P. C. was also justified.
I now pass on to the case of Ghulam Hussain appellant whom the learned trial judge has convicted of an offence of murder by the application of section 34 of the P. P. C. Section 34 P. P. C., which is one of the sections which make a person liable for acts not done by himself, will apply if it were established that the act of Taj Din appellant was done by him in furtherance of the intention which he had common with Ghulam Hussain appellant to kill the deceased or to put it in another form if it were established that Taj Din appellant killed the‑ deceased because he and Ghulam Hussain appellant had a pre‑arranged plan to do so. Whether or not an act was done by a person in furtherance of a common intention which he had with some other or others is a question of fact and, as direct evidence about it is rarely available, has generally to be inferred from the circumstances of the case. In the present case all that is proved is that when the scuffle between Feroze deceased and Ghulam Hussain appellant was in progress Taj Din appellant came and caused injuries with a chhuri to the deceased. None of the eye‑witnesses produced by the prcsecution stated that Ghulam Hussain appellant had exhorted Taj Din appellant to come to his rescue or to do what he did and it is, therefore, not possible to hold that the act of Taj Din in stabbing Feroze deceased was done in furtherance of the common intention of the two appellants. In this view of the matter section 34 of the P. P. C. has no application and the conviction of Ghulam Hussain appellant for the offence of murder would not be justified on the grounds mentioned by the learned trial Judge.
But Ghulam Hussain appellant may still be liable for the murder of Feroze deceased if his case could be brought within any of the other provisions of law which make a person vicariously liable for the acts of others. On the facts of the present case the only provisions of law that could be invoked by the prosecution would be those dealing with abetment of offences. The relevant part of section 107 of the P. P. C: which defines abetment is in the following terms :‑
"A person abets the doing of a thing, who‑
First‑Instigates any person to do that thing ; or
Secondly‑Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing ; or
Thirdly‑Intentionally aids, by any act or illegal omission, the doing of that thing."
I have already indicated that there is no evidence on the record that Ghulam Hussain appellant had asked Taj Din appellant either to come to his rescue or to do what he did and as there is no evidence of any instigation of Tai Din appellant by Ghulam Hussain appellant the first clause of section 107 has no application. Nor has the second clause application because there is no evidence that any of the acts which would make the second clause applicable was done in the present case. It now remains to consider if the third clause of section 107 was applicable to the facts of this case. At the time when Taj Din appellant attacked Feroze deceased the latter was being held by Ghulam Hussain appellant by the hair and the question to consider is if that act would matte the third clause of section 107 of the P. P. C. applicable to the case of Ghulam Hussain appellant. It is in evidence that rushing to the place where the deceased and Ghulam Hussain appellant were grappling Taj Din appellant caused some injuries in quick succession with a chhuri to the deceased and in the absence of evidence, which would prove that Ghulam Hussain appellant knew of the intention of Taj Din appellant to stab the deceased, it cannot be held that the third clause of section 107 of the P. P. C. was applicable. No doubt the fact that Ghulam Hussain appellant was holding the deceased by the hair did to some extent facilitate the attack on the deceased but as Ghulam Hussain appellant did not know that Taj Din appellant was about to act in the manner that he did the aid which Taj Din appellant received from the act of Ghulam Hussain appellant in holding the deceased was not given intentionally by the latter and, therefore, in my opinion, the third clause of section 107 of the P. P. C. was not applicable. In view of what I have said above, I would hold that the conviction of Ghulam Hussain appellant for the offence of murder was not justified and, therefore, I would acquitting him direct that he be set at liberty forthwith.
The question of the proper sentence to be imposed on Taj Din appellant for the offence of murder presents some difficulty. On the one hand there is the fact that an unarmed man was stabbed with a formidable weapon which kind of attack, if fatal, merits nothing but a death sentence but it cannot be overlooked that the scufle between Feroze deceased and Ghulam Hussain appellant started because the deceased behaved in a manner which was not entirely blameless. Considering all the circumstances I would reduce the sentence of Taj Din under section 302 P. P. C. to transportation for life and decline to confirm the sentence of death. The sentence imposed on Taj Din appellant under section 324 P. P. C. for causing an injury to Sher Muhammad is by no means severe and I would maintaining it direct that it shall run concurrently with the sentence for the offence of murder.
A13DUL AZIZ KHAN, J.‑--I agree.
A. H Order accordingly.
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