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Criminal Appeal No. 14 of 1980, heard on 21st March, 1984.

(Against the judgment and order dated 7th October, 1978 of the Lahore High Court, in 7th Criminal Appeal No. 475 of 1976).

‑‑ Art. 185(3)‑Penal Code (XLV of 1860), S. 302‑Murder‑Accused accidentally causing death of child in lap of mother by throwing acid on her‑Leave to appeal granted to examine whether conviction of accused under S. 302, Penal Code was rightly recorded.

‑‑S. 302 read with S. 300, Cl. Fourthly‑ Murder‑Accused throwing acid on woman resulting in grievous hurt to her and causing death of baby of tender age in lap of woman‑Held, case not involving transfer of malice but one of voluntarily causing grievous hurt to woman and accused possessing knowledge that death of baby was likely to result by contact with acid‑Conviction of accused under S. 302, Penal Code fully justified‑Facts, however, making a fit case for awarding lesser sentence of transportation for life for reason that accused did not stand convicted for attempting at life of principle victim‑Sentence of death converted into that of imprisonment for life.‑‑[Sentence].

Smith & Hogan Criminal Law (4th Edition), p. 59 and Queen v. Latimer (1886‑87) Law Reports 17 Q B D 359 distinguished.

Ijaz Hussain Batalvi, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record (absent) for Appellant:

Inamul Haq, Advocate Supreme Court and S. Abid Nawaz, Advocate‑on -Record for the State.

Date of hearing : 21st March, 1984.

Leave to appeal was granted to the petitioner, a convict under section 302, P. P. C., to examine whether, in the circumstances of the case, his conviction under section 302, P. P. C. has been rightly recorded for what appeared to be the accidental death of the child in the la of her mother on whom acid was intended to be thrown and was actually thrown causing grievous hurt to her.

The appellant suspected Mst. Naziran alias Surraya, a dancing girl of Tibbi Bazar, Lahore, (P. W. 9) of having acted as an informer against him out of professional rivalry, as a result of which a police raid was conducted and the appellant was hauled up along with a large number of women on the 15th of April, 1972 by Javed Bajwa (P. W. 13), an Inspector of Police. In order to avenge this insult he appeared in her dancing room at about 11.45 p.m. on the 27th of December, 1972. In one hand he carried a donga and in the other a plastic bottle both filled with Sulphuric acid and threw it at Mst. Naziran (P. W. 9). At that moment she had in her lap a baby (unnamed) three or four months old on which too acid was spilled. At that moment, Muhammad Hanif (P. W. 8) and Muhammad Riaz (P. W. 10) who were present in the room also got injuries on account of the acid throwing along with asst. Salma (not produced). Muhammad Ashraf (P. W. 7), the husband of Mst. Naziran, with the assistance of others was able to overpower the appellant, and after making arrangements for the injured to be taken to the hospital himself proceeded to the police station for lodging the report. On way in chowk Novelty, Muhammad Sharif, Sub‑inspector Police, met him who recorded his report Exh. P. A. at 10 a.m. which was transmitted to the police station where a formal first information report was registered the appellant was also produced before him. He arrested him. Dhoti (Exh. P. 1) of the appellant had acid burns. It was taken into possession and made into a parcel. From the spot Muhammad Sharif (P. W. 11) recovered the bottle and the donga and other articles which were having acid burns on them. He thereafter went to the hospital and attended to the injured who bad already been examined by the doctor.

Dr. Fida Hussain (not produced) had examined the baby and Mst. Nazi ran and had gone abroad and was not available at the trial. However, the injury statement prepared by him was proved by Abdul Ghani (P. W. 15), a senior clerk posted at the hospital.

Dr. Sabir Ali (P. W. 5) had performed the autopsy of the baby and found the following injuries :‑

"Superficial burns all over the face, sides of head, top of head and on both ears. Skin was found peeled at places. The area underneath was red 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 was of the opinion that the burns on the baby were caused by corrosive acid and were ante‑mortem and were sufficient to cause death in the ordinary course of nature.

Dr. Fida Hussain's report shows the following injuries on the person of Mst. Naziran :‑

"(1) Whole face except the area around the mouth was burnt.

(2) Whole of the neck had burnt.

(3) Left forearm central aspect and the dorsal aspect of the left forearm, wrist joint root of left thumb on ventral aspect were burnt.

(4) Nearly whole scalp was burnt,

(5) Left shoulder in the interior part and back of shoulder in upper shoulder were burnt.

(6) Burn on the right upper arm changed from the top of shoulder outer aspect.

(7) Tips of left finger were also burnt."

The appellant was examined first by the Magistrate Ist Class, Lahore, where the commitment inquiry was held. He reserved his right to reply to all the material questions and expressed the intention of making a detailed reply at the trial in the Court of Sessions. At the trial he denied having been apprehended at the spot after he had thrown acid and injured Mst. Naziran Muhammad Riaz and Muhammad Hanif and caused the death of the baby. He stated that he was falsely implicated on account of professional rivalry.

He stated :‑

"I am innocent. One day before the occurrence there was a quarrel in the Dancing Room of Ashraf complainant between his person and some Tamashbeens. Some unknown persons threw the acid on the deceased and the P. Ws. However, due to professional rivalry and to get the possession of the house from me the complainant falsely implicated me."

In defence be produced four witnesses who stated about an altercation taking place in the dancing room of Mst. Naziran and their learning that acid had been thrown on those present there.

The learned trial Court held that in respect of Mst. Naziran the intention of the appellant was to cause disfigurement by throwing acid and he was guilty under section 326, P. P. C. As regards the child, the trial Court relying on the decision in Ghulam Nabi v. State (P L D 1957 Lah. 109 ) held that his act amounted to murder for which he was guilty under section 302, P. P. C.

For this murder the trial Court sentenced him to death and a fine of Rs. 2,000. For injuries to Mst. Naziran he was sentenced to 10 years' rigorous imprisonment and a fine of Rs. 2,000. He was also held guilty under section 324, P. P. C. and convicted and sentenced (on two counts) to 1 year's rigorous imprisonment on each count.

On appeal and while seized of the question of confirmation of death sentence, the learned Judges of the High Court held that the act of the appellant so far as the child's death was concerned was covered fully by clause fourthly of section 300, P. P. C. and the absence of the intention to kill was not relevant. Proceeding further, however, the Court concluded :‑ ‑

"We have no hesitation in holding that the act of 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."

The learned counsel for the appellant contended before us that as the prosecution felt satisfied and the Courts convicted the appellant only of the offence under section 326, P. P‑ C. in respect of injuries caused to Mst. Naziran there could be no application of section 301, P. P. C. because on that finding the intention or malice transferred even in the case of the death of the baby could not be any different than that against Mst. Naziran. To support this the learned counsel has referred us to the heading Transferred Malice' dealt with at page 59 of Smith & Hogan Criminal Law (4th Edition). The next ground pressed by the learned counsel for the appellant was that clause fourthly of section 300, P. P. C. imports that degree of knowledge of death which was absent in the case of the appellant in causing the death of the baby. He could not have known that it was so imminently dangerous as to cause death in all probability or such injury as was likely to cause death. It was suggested by the learned counsel for the appellant that in the absence of such a high degree of probability clause fourthly of section 300, P. P. C. could not be of avail and the conviction of the appellant should have been under section 304, P. P. C. because it is a well‑established principle that if there was slightest doubt with regard to the degree or extent of knowledge of accused the benefit was to be extended to him. Finally with regard to the application of clause four of section 300, P. P. C. the learned counsel contended that the act done by the appellant was not without excuse, for there was a background which suggested that the appellant considered himself to be highly aggrieved by a false report made by Mst. Naziran to the police as result of which he had been hauled up.

On the findings on which the case has reached this Court it is clear that it is one of voluntarily causing grievous hurt to Mst. Naziran notwithstanding that in the first information report words were attributed to the appellant showing unmistakably that he intended to take her life by throwing highly e corrosive acid on her. All the Courts have held so and we think correctly that the appellant was aware that at the time he was throwing acid on Mst. Naziran she had in her lap the baby of such a tender age. He was emptying two utensils full of acid on them. In respect of the baby his knowledge that her death was likely to result by such extensive contact with acid could positively exist. The case of Queen v. Latimer ((1886‑87) L R 17 Q B D 359) is actually not at all helpful to the appellant and in fact supports the decision given in this case. In that case the prisoner while striking a man struck and wounded a woman beside him. The prisoner was indicted and tried for unlawfully and maliciously wounding the woman and his conviction was maintained, notwithstanding the jury finding that the injury received by her was purely accidental. The judgment in that case concluded as follows :‑

"The third finding does not entitle the prisoner to acquittal. The third finding is that the striking of the prosecutrix was purely an accident, and so it was in one sense. The prisoner did not intend to strike her, but in the unlawful and malicious act of striking Chapple the prisoner did unlawfully and maliciously wound the prosecutrix, and the third finding is quite immaterial."

In the case before us there was no question of transfer of malice. It is a question of direct knowledge of the presence of the child in the lap of Mst. Naziran. It is the direct knowledge which anyone, even in that situation, should have possessed of the consequences of throwing acid on the lady, without ensuring safety of the child in her lap, which created that degree of knowledge and probability which is the essential requisite of clause fourthly of section 300, P. P. C. We do not consider that this knowledge was, in any way, deficient, or was marginal, or was such as to create a doubt so as to entitle the appellant to a more lenient treatment in the matter of guilt or sentence.

As regards the justification of the excuse, there was none. It was a suspicion on the part of the petitioner and even if it were true that could hardly be a justification for attacking. In any case this excuse is not available to him for taking out this crime from the purview of clause fourthly of section 300, P. P. C.

We, therefore, find that the conviction of the appellant under section 302, P. P. C. is fully justified. However, as regards the sentence, the facts noted would make it a fit case for awarding the lesser sentence of transportation for life because the appellant does not stand convicted of the offence of attempting at the life of the principal victim. In the circumstances, while dismissing the appeal against conviction, we would set aside the sentence of death awarded to him and instead substitute it by a sentence of imprisonment for life and enhance the fine to Rs. 10,000 or three years' R. I. in default. On realization, the fine shall be paid as compensation to the heirs of the deceased. Benefit of section 382‑B of the Cr. P. C. shall be extended to the appellant in computing his sentence.

S. Q. Order accordingly.

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