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Criminal Appeal No. 935 of 1955, decided on 9th February 1956 from the order of Bashir‑ud‑Din Ahmad, Sessions Judge, Rawalpindi, dated the 11th October 1955.
‑Due to Broncho‑pneumonia developing independently of burns caused by accused's act‑Accused not guilty of murder.
The medical evidence was that the broncho‑pneumonia which caused death was not due to the burns caused by the act of the accused and could have supervened indepen dently of them.
Held, that the accused was not guilty of murder.
, S. 321‑"Voluntarily to cause hurt"‑Burns received by victim while escaping through fire caused by accused‑Accused, held guilty of voluntarily causing burns.
By burning jawar and a cart at the entrance of a bhura (dug‑out), the accused caused smoke to enter the bhura in large quantity so that the inmates of the bhura felt suffocated.
One of the inmates in trying to escape through the entrance, apprehending serious harm if he had remained inside, received a number of burns.
Held, that the accused voluntarily caused the burns and was guilty of an offence under section 324 P. P. C.
The test is that the finding as to whether the harm is caused by the offender depends upon whether the act of the offender can be said to have a compelling force so as to make the victim act to his detriment.
R. v. Pitts (1842) Car & M 284, R. v. Hickman (1831) 5 C & P.151 and R. v. Beech (1912) 76 J P 287 ref.
‑---Muhammad Nawaz and Muhammad Ashraf, who are brothers, were tried by the learned Sessions Judge, Rawalpindi, of offences' under sections 302/34, 436/34 and 427/34 P. P. C. and were convicted on all charges. Under section 302/34 Muhammad Nawaz was sentenced to death and Muhammad Ashraf to transportation for life, under sec tion 436/34, they were awarded rigorous imprisonment for seven years each and under section 427/34 rigorous imprisonment for two years each. This judgment will dispose of Criminal Appeal No. 935 of 1955 filed by the convicts and Murder Reference No. 233 of 1955 which relates to the sentence of death passed on Muhammad Nawaz.
The prosecution story is that on the night between the 11th and 12th of March 1955, Roshan deceased who was aged about 55 and his son Khuda Bakhsh P. W. who is about 25 were sleeping in their bhura which is situate in the area of village Chhailu of Rawalpindi district. A bhura, it may be explained is a dug‑out in a rock which is generally used for tethering cattle. There were cattle too tethered in the bhura, two bullocks and a cow. At about midnight the deceased and Khuda Bakhsh were awakened by the fall of some stones and earth from the roof of the bhura. The deceased shouted out as to who was there. Muhammad Nawaz appellant, who was present at the entrance of the bhura, gave an abuse and said that if they tried to come out they would be killed. The other appellant was also present there. The two appellants had placed thorny bushes and dry jawar at the entrance of the bhura and they set fire to it. Muhammad Ashraf suggested that the cart of the deceased be also put in front of the entrance and burnt. The cart was accordingly brought and placed at the entrance. The entrance to the bhura is in the form of a gali. The deceased was apprehensive that the flames from the fire would burn him, and he placed bricks opposite the entrance but the appellants pushed the bricks away by means of a rafter. Suffocated with the smoke the deceased tried to run out of the entrance. The fire was too strong and lie failed but in the attempt sustained burns on various parts of his body. The deceased and Khuda Bakhsh raised an alarm but there is no habitation near and nobody came to their help. At Morning prayer time the flames died out. The. two appellants, who had remained at the entrance till then, went away. Khuda Bakhsh P. W. then came out of the bhura and informed his brother Niaz Muhammad (P. W. 10), who came to the bhura, and took the deceased to village Thalla Sayyedan which is the place of residence of the deceased. The deceased first went to Muhammad Aslam Lambardar of the village and then in the company of the chaukidar went and made a report at Golra Police Station at 11‑30 a. m. The deceased was then taken to the Civil Hospital, Rawalpindi, where he died on the 14th March.
The reason for this conduct of the appellants is stated to be that the agricultural lands of the parties are adjacent and the cattle of each party had been damaging the fields of the other. The appellants had also suspected Niaz Muhammad P. W. of the theft of their corn.
A medical examination of the deceased showed that he had sustained 11 injuries from burns. On a post‑mortem examination of his body, it was found that death had been due to broncho‑pneumonia which was probably the result of burns. Khuda Bakhsh P. W. had no mark of injury on his body but he too contracted pneumonia. The two bullocks and cow that were tethered in the bhura were medically examined and were found to have burnt and charred lesions on their ears.
The prosecution produced Khuda Bakhsh, who narrated the whole incident as stated above. His brother Niaz Muhammad (P. W.10) stated that Khuda Bakhsh had informed him of the occurrence and that he had gone to the bhura, and had taken his father first to Muhammad Aslam and then to the police station. Muhammad Aslam Lambardar (P. W. 11) stated that the deceased had come to him accompanied by his son on 12th March 1955, and had told him that the two appellants had set fire to the bhura. The report made by the deceased at the police station was relied upon as dying declaration.
The appellants denied their guilt. Muhammad Nawaz appellant, when examined by the committing Magistrate as to why he had been implicated, said :‑
"The deceased was inimically disposed towards his son‑in- law and for this reason the deceased had turned him out of his house, and kept with himself every thing belonging to his son‑in‑law. I have been implicated merely on account of enmity and suspicion."
When examined by the Sessions judge, he gave the following reason for the case against him: "I was responsible for obtain ing fatwa against the deceased for suspected immorality with his own daughter and, therefore, he implicated me in this case falsely." Muhammad Ashraf when examined by the commit ting Magistrate as to why the case had been brought against him said that his answer was the same as that of his brother. In the Sessions Court in answer to the same question, he said "My brother Muhammad Nawaz accused was responsible for obtaining fatwa against the deceased for suspected immorality with his own daughter and therefore he implicated me in this case falsely."
The appellants produced four witnesses in defence. The first, Kaloo, a half‑brother of the deceased, did not say anything useful in their favour. The other three supported the defence that a fatwa had been secured against the deceased in respect of an illicit connection with his daughter.
Except with regard to the identity of the culprits, there can be little doubt with respect to the main facts alleged by the prosecution. At the entrance of the bhura somebody did place the fawar etc. and did set fire to it and the deceased had been injured in his effort to escape. The only questions are as to whether it is the appellants who are responsible for the outrage and if so whether the offences charged are made out.
Learned counsel for the appellants has argued that the persons, who set fire to the jawar may not have been identified at all and the deceased may have named them only on suspicion. We are not inclined to reject the evidence as to identity of the appellants on this ground. The prosecution story is natural and probable and we would accept it. When the deceased called out, Muhammad Nawaz had abused and said they should not come out or they would be killed. Muhammad Ashraf had suggested that the cart should also' be burnt. When the deceased piled up bricks the culprits had pushed the bricks away. There would be enough light on account of the fire to identify. That the culprits were identified also receives support from the statement of Muhammad Aslam Lambardar to whom the deceased was taken by his son. The deceased had told him that it was the appellants who had set fire to the bhura.
As regards the defence that the appellants were implicated because Muhammad Nawaz had secured a fatwa against the deceased as to his illicit connection, it is correct as admitted by Khuda Bakhsh P. W. that Muhammad Nawaz had gone to the Sajjadah Nashin of Golra and complained to him about the alleged incestuous connection of the deceased. But we are not impressed with the defence evidence and do not accept that a fatwa was in fact secured. Maulvi Mohibbun Nabi, an imam masjid, (D. W. 2) says the inhabitants of Chhailu brought Roshan deceased to him accusing him of connection with his daughter and that Roshan having refused to take an oath denying the allegation he gave an oral fatwa ex‑communicating him. It does not appear why the deceased should have accom panied the deputation. Khuda Bakhsh (D. W. 3), another Maulvi of Golra, says Niaz Muhammad (P. W. 10), son of the deceased, had come to him and had repented his previous treatment of his father, and that he had given Niaz Muhammad toba‑nama (Ex. D. B.). But this toba‑nama was never put to Niaz Muhammad when he entered the witness‑box and there is no explanation as to how this toba‑nama came into the posses sion of the defence, for D. W. 3 says he gave it to Niaz Muhammad P. W. It is also to be noted that this toba‑nama is dated the 30th of March 1955, that is, about 18 days after the occurrence. The defence that the appellants were named because of the complaint made by Muhammad Nawaz against the deceased appears to be an afterthought. Before the Committing Magistrate when replying to the question as to why the appellants had been implicated, neither appellant mentioned this fact.
It was urged on the basis of a statement made by Gulzar (P. W. 12), who had been tendered, that the occurrence had taken place on the night between the 10th and 11th March. The doctor, who examined the injuries, said they were of 24 hours' duration. and Muhammad Aslam Lambardar says it was on the 12th that he received information of the offence. Muhammad Aslarn was not cross‑examined as to whether the occurrence was not of a day before nor was any question put to Khuda Bakhsh or Niaz Muhammad on this point and we repel the suggestion of the defence.
We find the identity of the appellants to be established and will consider next what are the offences committed by them. As regards the murder charge, it has been admitted by Dr. S. G. M. Shah (P. W. 2) that the broncho‑pneumonia which caused death need not have been due to the burns and could have supervened independently of them. Under the A circumstances it could not be said that the appellants had committed murder and they must be acquitted of that charge.
The charge under section 436/34 P. P. C. was based on setting fire to a human dwelling, that is, the bhura. This charge also fails for the bhura was never set on fire.
The charge under section 427/34 P. P. C. was grounded on setting fire to the cart which is more than Rs. 50 in value. This charge is established. Learned counsel for the Crown has urged that we should convict the appellants under section 435 instead of 427 for the cart is of the value of Rs. 300. But it would not be fair to do so for the appellants have not had an opportunity of contesting that the valuation does not exceed Rs. 100.
We have next to consider a question of law of some importance that arises in this case. It is urged on behalf of the Crown that the appellants were in this case also guilty of an offence under section 324 P. P. C., for, although they did not by their own hands hurt the deceased, by suffocating him with smoke, they forced him to run out through the fire as a result of which his body was burnt at several places. Learned counsel urges that from the point of view of criminal responsibility it would make no difference whether the offender causes hurt with his own hand or forces the victim to take a course the consequence of which is hurt.
The relevant sections of the Pakistan Penal Code are 319 and 321 which run:‑
"319. Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt".
"321. Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said 'voluntarily to cause hurt ".
It may be mentioned here that the elements of "volun tarily" as incorporated in section 321 are the same as are provided in section 39 which section defines "voluntarily" with this difference that the words "had reason to believe" which occur in section 39 are omitted. The question for decision is whether the words in section 319 "whoever causes bodily pain etc." cover a case like the present when the offender has acted by influencing the will of the victim through fear of suffocation so that he has hurt himself.
There can be little doubt that in their ordinary meaning the words of section 319 refer only to the person who is directly responsible for the physical consequence and they would be inappropriate for a case where all that the offender does is to influence the will of another person who voluntarily produces the physical consequence. If A advises B to cause hurt to C and B does cause hurt, then even if it be established that, but for the advice of A, B would never have caused hut to C, it would not be appropriate to say that A has caused hurt to C for there is a human will intervening which has acted voluntarily and it may not have acted as it has. A study of the other provisions of the Penal Code would confirm the impression that when the Code makes the doing of an act punishable it refers to the person directly responsible for the act and not the person who simply procures the doing of an act. A person commits forgery when he 'makes a false document'. It would hardly be reasonable to urge that a person who induces another to make a false document is himself making a false document. Similarly, a person is guilty of unlawful confinement if he confines another and it would not be possible to argue that a person who induces another to confine a person himself confines that person. The scheme of the Penal Code is that only the actual perpetrator of the crime is regarded as the principal, others being punished either as abettors or through some principle of vicarious liability.
This scheme is not peculiar to the Penal Code. In English law, so far as felonies are concerned, only the person directly responsible for the commission of an offence is regarded as the principal, those who influence his will being liable as accessories before the fact.
What I have stated above does not, however, mean that the offender will not be deemed to have caused the physical consequence if (1) while taking step to produce such consequence he also employs a human will, or (2) he threatens his victim with immediate serious harm so that the victim out of fright and in order to protect himself acts to his detriment or (3) the offender creates a situation in which the victim must come to harm either by the physical act of the offender or by his own act and the victim chooses the latter alternative. In all these cases the offender causes the harm as surely as he does when he causes an injury with his hand. In cases of class (1), he merely employs a human will to produce the physical consequence as he would employ an inanimate object or an animal. As an example of this class may be mentioned a case where A puts poison in a glass of water which he knows B will offer C and as a consequence C dies. Here the act of A from the point of view of criminal responsibility has the same effect as it would have if he offered the glass of water himself to C. In the second class of cases, the act of the victim, though it may technically be "voluntary" is in substance involuntary. He acts under a compulsion which can very well be likened to physical compulsion. As an example of this kind may be mentioned a case where the offender threatens the victim with a pistol shot and the victim jumps out of the window and kills himself. The third class of cases though it may appear to resemble the second, bears in fact a well‑marked distinction. If B is on a railway track on a bridge below which there is an abyss thousands of feet deep and A drives a train on the bridge so that B must either be run over by the train or jump down to kill himself then if B jumps and kills himself, it is not merely a case of action out of fear. Here, the moment A sets the train in motion, the death of B is certain. It may be caused by being run over or by jumping down but it must result irrespective of the action that B takes while in a case of the second class‑B may have acted only from apprehension and he may not have died if he did not jump from the window. The pistol which threatens him may not be loaded at all.
It would follow from this discussion that although the word "cause" refers to .the person directly responsible for the physical consequence its applicability is not excluded because (1) the offender employs some human agent for the production of the physical consequence or (2) the victim on account of fear or to avoid certain harm acts to his detriment.
Unfortunately, there is no Indian or Pakistani case that deals with the question of law that arises. There is, however, a good deal of English authority for what is stated above. In Halsbury's Laws of England, Volume IX, (Hailsham Edition) page 428, when dealing with murder, it is stated:
"When one person attacks or threatens to attack another and compels the person attacked by bodily force, or induces him by a well‑grounded apprehension of immediate serious violence, to do some act which directly results in his death, the person attacking or threatening to attack is guilty of murder". In Russell on Crime (Tenth Edition 1950 page .693) while dealing with a provision that punishes infliction of grievous bodily harm, it is stated: "If in con sequence of a reasonable and well‑grounded fear of violence a person jumps from a window, or into a river, to escape the threatened violence and sustains grievous bodily harm, or if the person sustains grievous bodily harm in escaping from the threatened violence, this will amount to inflicting grievous bodily harm under the section". In R. v. Pitts ((1842) Car & M 284) the deceased had got drowned in an endeavour to escape from an assault made with intent to murder or rob. Erskine, J. held that if a person on being attacked should; from an apprehension of immediate violence, an apprehension which must be grounded and justified by the circumstances, throw himself into a river and be drowned, the person attacking would be guilty of murder. An act may be involuntary, the learned Judge said, on account of force applied either to the body or to the mind. In R. v. Hickman ((1831) 5 C & P 151) the deceased was on horseback and the prisoner struck him with a stick. The deceased, from a well grounded apprehension of further attack which would have endangered his life, spurred his horse which became frightened and threw the deceased so as to kill him. It was held that the prisoner was guilty of manslaughter.
In R. v. Beech ((1912) 76 J P 287) the accused had gone to the house of the prosecutrix at night when she was in bed and began to force open the door of her room saying he would force it open. She replied that if he forced it open he would not find her there. When on further pressure the door nearly burst open she jumped out of the window and was hurt. The judge directed the jury to find the person guilty of causing grievous bodily harm if they found that the conduct of the accused amounted to a threat of causing injury to the prosecutrix and the act of jumping was a natural consequence of his conduct. The principle of this case will very well cover the present case.
The facts in the present case are that by burning jawar and the cart at the entrance of the bhura, the appellants e caused smoke to enter the bhura in large quantity so that the inmates of the bhura felt suffocated. Khuda Bakhsh (P. W. 9) says "I went and lay down in the manger for there was lot of smoke". At another, place he says "The bhura got filled with smoke when the accused set fire to the jawar etc. in front of the door". The entrance to the bhura as will appear from the plan is in the form of a gali. The deceased would have a reasonable apprehension that if ha remained in the bhura, he may die of suffocation. The deceased and Khuda Bakhsh (P. W. 9) were also apprehensive that the flames may reach them and it was in order to prevent the flames from harming them that they began placing bricks in the entrance. Khuda Bakhsh says "I and my father started placing bricks in the entrance of the bhura to prevent the flames reaching us". It is clear that the act of the deceased in trying to escape through the entrance was due to the apprehension of serious harm that he may have suffered had he remained inside. In a case where the victim acts so as to hurt himself the finding as to whether the harm is caused by the offender depends upon whether the act of the offender can be said to have a compelling force so as to make the victim act to his detriment. We are of the opinion that the act of the appellants was sufficiently compelling. The criterion adopted in R. v. Beech was whether the act of the victim was a natural consequence of the act of the offender. That criterion is satisfied in the present case. Even though Khuda Bakhsh, who was younger and better able to bear the smoke and probably wiser by the vain efforts of his father, did not come out, the act of the deceased was a natural result of the act of the appellants. The cattle, it will be observed had also made an effort to come out and had got burnt. The appellants, therefore, have caused hurt with fire.
As to "voluntarily" the appellants knew that the coming out of the deceased through the fire was a likely result. That is all that is required by section 321. The appellants are, therefore, guilty of an offence under section 324 P. P. C. We alter the conviction of the appellants from one under section 302/34 to one under, section 324/34 P. P. C. and award a sentence of two years' rigorous imprisonment.
As a result, the appeal is partly accepted and :‑
(1) conviction under section 302/34 is altered to one under section 324/34 P. P. C. and the sentence is reduced to one of rigorous imprisonment for two years each ;
(2) the conviction under section 436/34 is set aside and the appellants acquitted ; and
(3) the conviction as well as sentence of two years under section 427/34 are maintained.
The sentences awarded under sections 324/34 and 427/34 P. P. C. shall run concurrently.
The sentence of death is not confirmed.
A. H. Conviction altered.
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