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Criminal Appeal No. 71 of 1956, decided on 7th November 1956.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 22nd December 1955, in Criminal Appeal No. 650 of 1955.)

S. 300, Exception 1 Provocation by wanton injury‑Plea not available to person other then the injured.

The theory of provocation by wanton injury cannot be imported into a case where the accused raising the plea of provocation were not themselves injured but alleged that a servant of their party had beet; injured by the deceased, which servant was neither one of the accused nor a witness on behalf of the defence in the case. The offence of murder therefore could not be reduced to one of culpable homicide not amounting to murder.

Kwaku Mensah L R, A C 1946 at p. 83 ref.

Ss. 236 and 237 read with S. 537, Explanation‑Element of doubt in regard o which of several offences committed‑Charge under Ss. 302/ 149, P. Y. C.‑Conviction of two of accused under S. 302 legal ‑No prejudice.

Where six accused were charged under sections 302/149, P. P. C., two of the accused having been proved to have fired the two fatal shots which caused the death of two persons Held, that conviction of the two aforesaid accused for murder under section 302, P. P. C. direct was, by virtue of sections ‑ 236 and 237, Criminal P. C., not illegal although they were not directly charged under that section.

There was, on the evidence, an element of doubt in regard to the precise offence‑whether under section 302 or sections 302/149, P. P. C. committed, which was sufficient to justify, within the terms of section 236, Criminal P. C., the framing of a 'charge under sections 302/149, P. P. C. and convicting the two accused under section 302 P. P. C., on the basis of direct evidence of eye‑witnesses.

It is true that at the same time, specific charges under sections 302, P. P. C. might also have been framed against the two accused individually, but, by section 236 Cr. P. C. the Court is expressly permitted to frame a charge in respect of any of the several offences which might have been charged. By the application of section 237, Criminal P. C., a conviction can legally be obtained, in a case of this kind, of any offence which appears from the evidence to have been committed, although‑ it was not expressly charged.

Accused persons in cases of this type concentrate their attention more on the substance of evidence against them rather than to the precise charge framed. Any suggestion of prejudice, therefore, in the matter of framing the charge, was unacceptable.

Held also, that the objection, on the score of a defective charge, having been raised for the first time in the Supreme Court, was not entertainable by virtue of Explanation appended to section 537, Criminal P. C.

Suraj Pal v. State of Uttar Pradesh P L D 1956 S C (Ind.) 21 distinguished.

Manzur Qadir, Senior Advocate, Supreme Court, (M. Ismail Bhatti, Advocate, Supreme Court with hint), instructed by M. Siddiq, Attorney for Appellants.

S. A. Mahmud and M. Anwar, Advocates, Supreme Court instructed by Ijaz Ali, Attorney for Respondent.

Dates of hearing : 25th, 26th and 29th October 1956.

The two appellants Muhammad Anwar and Khurshid Ahmad stand convicted under section 302, P. P. C. The death sentences imposed by the trial Court were confirmed by the High Court. We are informed that these have been commuted by the Provincial Government to transportation for life.

Four other persons namely Yusaf, Nawaz, Sadiq and Bashir ' Ahmad were tried along with the two appellants. These are all members of a faction in their village of which the leader is one Murad Ali Lambardar, father of the appellant Khurshid Ahmad. It is common ground that the outbreak of violence in this case was the result of faction feeling. It' occurred in the morning, in an open place not far from the house of Murad Ali. It seems also to be common ground that the minor events which served as an irritant to cause the outbreak, involved, as a principal figure, one Muhammad Qasab who is a servant of the accused party. The stories put forward by the prosecution and the defence respectively commence with a beating given to Qasab by the two deceased persons Muhammad Riaz and Muhammad Nawaz not long before the major outbreak. There are however major divergencies which will appear from the following narration.

The prosecution story is that Muhammad Riaz and Muhammad Nawaz beat Muhammad Qasab at his own house on the 10th July 1954, in the early part of the morning. Later at 9‑30 a.m. they were walking past the house of Murad Ali Lambardar when they were attacked by the six accused persons, three of whom namely Muhammad Nawaz, Yusaf and Sadiq had dangs while the rest were empty‑handed. The first blow was allegedly aimed by Muhammad Yusaf at the deceased Muhammad Nawaz, who evaded it, and with his own dung hit Muhammad Yusaf in return. While this was going on, it is said that Muhammad Anwar, Khurshid Ahmad and Bashir Ahmad fetched rifles from Murad Ali's house and on seeing this, Muhammad Riaz and Nawaz took to their heels. Thereupon, three shots were fired, at the retreating men. It is said that Muhammad Anwar's shot brought down Riaz, that Khurshid Ahmad's shot brought down Nawaz and that the shot fired by Bashir Ahmad hit nobody. Each of the wounded men bore upon his person the marks left by a single bullet which had passed through his body. It was suggested in the Courts below and was also pressed before us to a slight extent that these marks were caused by a single bullet passing through the bodies of both men. Certain circum stances e. g., that the blood stain on the ground at the spot where they fell was a single large blood stain, were adduced in support, but we do not consider that, upon the direct evidence led in the case which has been accepted by the Courts below such a theory is either tenable, or useful to consider.

The other injuries caused in the course of the same incident may conveniently be mentioned here. Muhammad Yusaf accused had 4 contused wound on the top of his head and a contusion on his right shoulder. Muhammad Qasab's injuries .for which varying explanations have been given by the prosecution and the defence respectively were a swelling on the top of the head and a small abrassion on the body. An injury for which the prosecution do not account, but which is mentioned in the defence version is a fracture of a bone in the left arm of Hasan Muhammad father of Muhammad Yusaf. This was examined by the doctor on the 16th July 1954.

The defence version of the incident was stated in detail in the trial Court by the injured accused Yusaf. It is that he and his father found the two deceased Riaz and Nawaz chasing Muhammad Qasab who ran into the baithak and entering the room chained the door from within. His pursuers however along with the companions numbering about fifteen persons broke open the door and began to beat Muhammad Qasab. Muhammad Yusaf and his father Hasan Muhammad went to his aid, and were themselves beaten. In the meantime, Muhammad Qasab brought a rifle from inside the house whereupon Riaz and Nawaz ran for their lives while their companions stood aside. When Riaz and Nawaz were just escaping through the outer door of the baithak, Muhammad Qasab fired a single shot at them, and brought them down.

This version was put to the eye‑witnesses produced for the prosecution but was denied. No evidence was led to establish it affirmatively and in this connection it is of great significance that Muhammad Qasab had not been cited as an accused person, and was therefore available to give evidence. The failure of the accuse) persons to produce evidence in their defence seriously prejudiced their case. In fact, no oral evidence was led in defence.

The main evidence for the prosecution consisted of the statements of three eye‑witnesses namely Inayat, Dost Muhammad and Muhammad Sadiq. The judgment of the High Court contains a full examination of the nature of these witnesses and the quality of their evidence. The learned Judges expressed themselves regarding the truth of the ocular evidence in the following terms:‑--

"After considering the broad facts of the case, as revealed in the evidence on the record, we are convinced that the prosecution witnesses had told the substantial truth. Their statements form a coherent narrative and are consistent with the circumstances brought out in the evidence."

Each of these witnesses had stated that the first shot was fired by Muhammad Anwar and that it hit Muhammad Riaz, and that thereafter Khurshid Ahmad fired and hit Muhammad Nawaz, and that thereafter a third shot was fired by Bashir Ahmad. There is no suggestion that the three shots or any two of them were fired simultaneously. Therefore, the statements of these witnesses regarding the order of firing and the order in which the victims were injured may be accepted as truthful in their detail, Relying on the evidence of the same witnesses the learned Sessions Judge recorded the following finding :‑

"As already indicated above, I do not agree with the defence version, that both the deceased persons were' hit by the same bullet. 'Muhammad Riaz deceased received the bullet injury at the hands of Muhammad Anwar accused and Muhammad Nawaz deceased at the hands of Khurshid Ahmad accused."

These clear findings by the two Courts below on simple questions of fact which fell to be decided on the basis of direct evidence, relieve this Court of any necessity to re examine the evidence on the basis of the defences raised at the trial. In the absence of any direct evidence by the defence to show that the fatal shot or shots was or were find by Muhammad Qasab, the liability of the appellants must be considered on the basis that the fatal shots were fired by them, and this indeed is established beyond reasonable doubt by the evidence on the record.

In the order made in this case by the admitting Bench reference was made to the case of Kwaku Mensah (L R, A C 1946 at p. 83), where in the Privy Council, a plea of provocation by wanton injury was allowed to be raised on behalf of the appellant who was convicted for murder. The plea was only advanced at a late stage in the argument before the Judicial Committee and it was submitted that although the defence taken at the trial was one of accidental killing, yet since there was evidence to support a plea of provocation sufficient to reduce the crime to manslaughter, that matter should have been submitted by the Court to the Jury, and the failure to do so was a sufficient ground for the Judicial Committee to entertain the appeal on the basis that‑‑ there had been a failure of justice in that respect. The Judicial Committee observed as follows:

"Now in the present case there was undoubtedly a fracas is which at some stage the prisoner took part and in which he was admittedly stabbed at a time before the shot was fired. The case was that the deceased man tried to get into his house after he bad retired for the night and that he received the wound while trying to drive off or capture the intruder.

If that was true the stabbing would undoubtedly have amounted to provocation. The prosecution's case was, on the other hand, that the disturbance was caused by the villagers attacking the dead men and his fellow smugglers for the purpose of robbing them. As the case developed at the trial the truth of these two versions became immaterial, but on the issue of provocation it was all important. If a man is struck or stabbed while defending himself or his property, or while trying to apprehend a thief, there can be no question but that it amounts to provocation of the most serious character. The jury accordingly ought to have been told to consider whether the accused received his wound while acting in defence of his property or whether he got in consequence of an attempt by him to steal from or injure a man who had done him no harm. That would have enabled them to say whether there was provocation in fact."

Their Lordships then proceeded to consider the provisions of the Criminal Code ‑of the Gold Coast in British West Africa, from where the case had come to them and came to the conclusion that there had been a failure on the part of the trial Court to take the opinion of the Jury on the point of provocation which, had the Jury accepted the evidence, might have avoided a conviction for a capital crime. This in the opinion of the Judicial Committee was sufficient ground for them to entertain the appeal within their limited jurisdiction in criminal cases and they went on to observe that it was "impossible to say what verdict would have been returned had the case been left to the Jury with a proper direction Acting in accordance with a precedent, their Lordship altered the verdict of murder to manslaughter.

An attempt has been made by Mr. Manzur Qadir for the appellants to bring the facts of the present case within the principle enunciated in the case of Kwaku Mensah. That attempt was, however, hampered to a great extent, by the absence of candour displayed in formulating and supporting the defence to the prosecution case. If the assault upon Muhammad Qasab could have been described as wanton an unprovoked, any action by Muhammad Qasab himself could perhaps have been represented as falling, for purposes o liability, within the principle enunciated in the case of Kwak Mensah. But, Muhammad Qasab was never produced evidence Pad there is not a scrap of evidence to support the allegation that it was be who fired at the two retreating men. Neither Muhammad Anwar nor Khurshid Ahmad received any injury in the course of the incident. Muhammad Yusa who received an injury, although not in the initial stages, eve according to the defence version, is not connected in any way directly with the deaths of Muhammad Riaz and Nawaz. Consequently, the theory of provocation by wanton injury, cannot be imported into the present case and, on the evidence, there is nothing proved which can avail to reduce the crime to manslaughter.

Mr. Manzur Qadir next urged that the two appellants had been prejudiced by failure at the trial to place them upon a charge of direct liability for the deaths of Muhammad Riaz and Muhammad Nawaz. The charges upon which they were tried were under section 148, P. P. C. and section 302/ 149, P. P. C. These charges were common to ail the six accused persons. The first charge was under section 148, P. P. C. for committing a riot being armed with rifles and lathis while constituting an unlawful assembly: formed with the object of murdering Muhammad Nawaz and Muhammad, Riaz. The second charge was in the following terms :‑‑

"Secondly 'that you . . . . ., as members of the said unlawful assembly, in prosecution of the common "object of the said assembly intentionally did cause the murders of Muhammad Nawaz and Muhammad Riaz by firing at them with rifles and thereby committed an offence punishable under sections 302/149."

It was pointed out, with force, that the charge of murder was expressly one of constructive liability affecting each one of the six accused persons, and nothing was said about any one or more of them having actually fired and being therefore directly responsible for any deaths. Mr. Manzur Qadir pressed before the Court the argument which had been adopted by the Supreme Court of India in a recent case Suraj Pal v. State of Uttar Pradesh (P L D 1956 S C (Ind.) 21).

In that case, there were allegations of the use of lathis by a number of the accused persons who were twenty in all, as well as an allegation that Suraj Pal fired a pistol twice, killing one person and wounding another. The 'accused' persons were placed on trial on charges under sections 147, 148 and sections 323, 307 and 302 read with section 149, I. P. C. (The content of these sections of the I. P. C. may be assumed to be, for practical purposes, identical with that of the corresponding sections with the same numbers in the Penal Code of Pakistan.) There was no specific charge against Suraj Pal for having caused death by means of a pistol shot, although he was specifically charged under section 148, 1. P. C., for being armed with a pistol while, engaging in a riot.

The absence of specific charges against Suraj Pal under, sections 307 and 302, I. P. C. was regarded as a " very serious lacuna" in the proceeding and it was considered whether this lacuna had prejudiced him in his trial. It was observed that a charge of a substantive offence read with section 149; I. P. C. is a charge of " constructive liability " and that " the direct individual liability of a person can only be fixed with reference to a specific charge in respect of a particular offence." In the instant case, it was thought that "the charge was so pointedly vague, no accused was bound to direct his attention in his defence to the question as to whether he of somebody else was. the person who fired the pistol." The accused had been pointedly questioned in the Court of Session whether he had fired a pistol or not. A similar question bad been put. to him in the committing Court, and to the contention that consequently the accused had ample notice of the specific case before being put upon his trial the reply was made that " it does not follow that there could be no prejudice," and: the accused might have been misled by the persistence of the Court in proceeding with the trial on the vaguely‑worded charge. The final conclusion was that in a serious case where the only sentences that could be awarded were sentences of death or transportation for life, and particularly where the appellant had been distinguished from the other accused at the trial by being awarded a death sentence in respect of his individual act, it was difficult to say that the accused has not been prejudiced by the absence of specific charges under sections 307 and 302, I. P. C."

Mr. Manzur. Qadir has urged that these considerations are applicable to the case for present appellants as well, in regard to whom the facts are similar in many respects to those found in the case of Suraj Pal. 'He argued that if the appellants had been made aware at the trial that they were specifically accused as the actual murderers, they would have tried to counter the evidence of the three eye‑witnesses in a different manner from that which they had actually adopted. Believing that the only liability which was being enforced against them of a constructive nature, they tended to regard the precise facts relating to the killing as matters of mere detail. He was, however, unable to provide any sound basis of reason for the contention that a case like the present is not governed by section 237, Criminal P. C. He admitted that this point had not been taken by the accused persons in their appeal before the High Court.

We observe that in that case, both in the enquiry as well as during the trial, the three eyewitnesses whose evidence was the foundation of the case stated clearly in the presence of the accused persons that the shot by Muhammad Anwar killed Riaz, and that by Khurshid Ahmad killed Nawaz. It was put in precise terms to Muhammad Anwar and Khurshid Ahmad at the trial that bullets fired by them struck and killed Muhammad Riaz and Nawaz respectively. Yet, there was an allegation of a third shot by Bashir Ahmad, and although the witnesses were clear that this shot hit no one, an element of doubt might be thought to appear, which was sufficient to justify, within the terms of section 236, Criminal P. C., the framing of a charge under section 302, P. P. C. read with section 149, P. P. C. It is true that at the same time, specific charges under section 302, P. P. C. might also have been framed against Muhammad Anwar and Khurshid Ahmad, individually, but by section 236 aforesaid, the Court expressly permitted to frame a charge in respect of any of‑the several offences which might have been charged. By the application of section 237, Criminal P. C., a conviction can legally be obtained, in a case of this kind, of any offence which appears from the evidence to have been committed although it was not expressly charged. When, therefore, a the conclusion of the trial, the learned Sessions Judge was satisfied regarding the individual liability of Muhammad Anwar and Khurshid for the two deaths in question, it was open to him to record a conviction against each of them under section 302, P. P. C. In actual fact, after reaching the finding of individual responsibility which has been reproduced above, the learned Judge considered the hypothesis of the defence regarding the deaths having been caused by a single bullet and recorded his conclusion as below :‑----

"Even if I accept the contention of the defence for the sake of argument, that both the deceased persons were hit by the same bullet, in my opinion both the aforesaid accused persons would be equally liable for the injuries caused, because after the receipt of an injury by Muhammad Yusaf accused, both of them ran into the baithak and came out armed with rifles. That being the, case, it can reason ably be inferred that both of them intended to use the rifles and murder the deceased. Both of them are proved to have fired rifles and it is immaterial, therefore, whether it was the bullet of one or the other which hit the deceased persons, as in my view, both the accused can be saddled with the common intention of murdering the deceased. Disagreeing with the opinion of the assessors, qua the aforesaid two accused. I hold them guilty under sections 302/34 of the P. P. C. and convict them."

We consider that on the view taken by him which was confirmed by the High Court, the convictions should mom correctly have been ‑ under section 3172, P. P. C. for direct liability. Yet the passage reproduced above shows clearly that there was in the case an element of doubt of the kind mentioned in section 236, Criminal P. C., and that the case, therefore, fell within the principle enunciated in section 237 of the same Code. The position in the case before the Supreme Court of India was somewhat different in this respect.

The argument of prejudice raised by Mr. Manzur Qadir is unconvincing. In our judgment, which is based on experience, accused persons of the type found in this case concentrate their attention almost exclusively upon the substantial facts which appear against them in the evidence of the prosecution witnesses. Without wishing in any way to minimise the importance of precision in the framing of charges, so that the accused persons may be apprised, at the earliest stage, of the case which they are required to meet, we consider that the suggestion that accused persons in cases like the present carry in the forefront of their minds throughout their trial, the precise terms of the charges framed against them, and in presenting their defence, are guided by their conception of the nature of the charge to the exclusion of the evidence which is presented to the Court, is altogether too fanciful and remote from reality to be worthy of acceptance. As has been seen, the case was of such nature as to be precisely within the terms of sections 236 and 237, Criminal P. C. Consequently there was no irregularity committed the prejudicial effect of which we might have felt it necessary to estimate. Moreover, it is expressly provided in the Explanation to section 537 of the Criminal P. C. that in making such an estimate, "the Court shall have regard to the fact whether. the objection could and should have been raised at an earlier stage in the proceedings." We have noted above that objection was not taken before the High Court, and has been taken before us for the first time. In our view, the appellants suffered no prejudice at their trial by reason of the terms of the major charge framed against them.

The appeal is accordingly dismissed.

A.H. Appeal dismissed.

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