P L D 1959 (W (PLP)

HABIBULLAH KHAN, J.‑This is an appeal by one Ilahi Bakhsh, cook in the Officers Mess. M. O. D. C.; Dera Ismail Khan, against the order of Mirza Abdullah Jan Khan, Sessions Judge, Derajat, whereby he has been convicted under section 302, P. P. C. and sentenced to death. His sentence is also before us for confirmation. Three other persons, namely, Musa washerman of the Mess, and Na jib and Rahmat Khan sepoys in the Army, were also jointly tried with Ilahi Bakhsh appellant, but they were acquitted. Musa and Rahmat Khan were given the benefit of doubt, as their identity was not proved. Najib was not assigned any active role contributing to the death of the deceased, The murdered man in the case was one Shafqat Bakhsh Awan, B.Sc. of D. I. Khan town, a Demonstrator in the Local Government College. He, while the appellant was chasing and hurling stones at him, jumped into the Indus River in front of him. A third person entered the water to rescue him from drowning but in the meantime the appellant hit the deceased with a stone as a result whereof he again fell into the river, and was drowned The substantial question in the case, which requires determination is, whether the act of the appellant constitutes an offence under section 302, P. P. C. It has not been possible to ascertain the origin of the incident, but according to Nazakat Hussain (P. W, 2) and Allah Dad (P. W 1 ), they happened to be present in the vicinity of the river, when all of a sudden they noticed the deceased, Ilahi Bakhsh appellant and Najib the acquitted accused, running from the direction of the Officers Mess towards the river. The deceased was running ahead, while Ilahi Bakhsh and Najib were chasing and hurling stones at him. The deceased was also in. return throwing stones at his assailants. Driven to the bank of the river and finding no escape, the deceased jumped into the water. Nazakat Hussain and Allah Dad who had by this time reached the bank, saw the deceased drowning and struggling for life. Allah Dad, who was a swimmer, plunged into the water to rescue the deceased. He cannot hold of him and pulled him out to the surface of the water. The deceased rested over the shoulders of Allah Dad, when meanwhile Ilahi Bakhsh hurled another stone at him (deceased), which struck him, and in consequence he got released from the grip of Allah Dad, and was drowned: Sarfraz (P. W. 19) had also in the meantime jumped into the water and saved Allah Dad from drowning. When the deceased after being released from the clutches of Allah Dad disappeared under the water, he was not seen again. A Military Havaldar, who had by this time reached the spot from the direction of the Boat Bridge nearby, slapped, Ilahi Bakhsh and Najib for killing an innocent man, and directed Nazakat Hussain and others to take them to the police station. Accordingly, Nazakat Hussain and his companions escorted Ilahi Bakhsh and Najib to the Cantonment Police Station, where they lodged a report. The dead body of the deceased was recovered from the river after about a week, floating in‑the water at a distance of a few miles from the scene of occurrence. It was duly identified to be that of Shafqat Bakhsh Awan. Ilahi Bakhsh appellant did not disclose his story in the Enquiry Court and reserved it for the Sessions Court. According to his version, given in the trial Court, he was present in the kitchen, when between 12‑45 and 1 p.m. he heard a creak of a door of the Officers Mess room. He asked Mess Orderly Najib to go out, and see if any officer had come there. Najib went in the direction of the room. The appellant also followed him. He saw the deceased leaving the room and jumping over the boundary wall of the Mess, running towards the river. Suspecting the deceased to be a thief, the appellant and Najib chased him, in order to stop and enquire from him, as to why he had entered the Mess. They were at the same time crying, that the man who was running ahead of them was a thief. They were running on the pacca road, while the deceased was proceeding on the apron of the river. Their alaram attracted Nazakat Hussain and Allah Dad P. Ws., who came in front of the deceased. When they (Nazakat Hussain and Allah Dad) reached close to the deceased, the latter suddenly jumped into the river, and disappeared under the water. According to the appellant, he took the deceased for a thief, because 3 or 4 days earlier a theft had taken place in the Mess and the culprit was not traceable. He totally repudiated the prosecution allegation, that he had hurled any stones at the deceased. Post‑mortem examination conducted by Doctor Faiz Ali Shah on the dead body of the deceased revealed the following injuries :‑ (1) A contusion mark 1 " x 1" on the left eye‑brow and the adjacent part of the left side of the forehead. (2) A contusion mark 2 " x 2" over the left cheek. (3) A contusion mark 2 " x 1" over the back of the left fore arm, 2" above the wrist. (4) A contusion mark 2" x 1" on the outer side of the left leg just blow the knee. (5) A contusion mark 2" x 1 " on the back of the left leg, 3" above the ankle. (6) A contusion mark 4 " x 3" on the front of the lower abdomen. (7) A redded (sic) post‑mortem wound on the left side of the chest from the 3rd rib down to the 7th rib. All the soft tissues were gone and only the ribs remained, so that the exterior of the body communicated with the left side of the chest cavity. It was filled with sand. The body also bore numerous marks of nibbling by acquatic animals like fish. Tongue was protruding. On internal examination, brain was found putrified and liquefied. Only the external membrane of the brain; holding the liquified portion of brain matter like a bag, was present. According to the Doctor, the injuries Nos. 1 to 6 were ante- mortem, and caused by a blunt weapon, and were possible with stones. In his opinion, the deceased died of "shock". Since it was not quite clear from his statement in the trial Court, as to what was the cause of the shock, of which the deceased died, we examined him in the presence of the appellant and his counsel. We would refer to this evidence later, when we proceed to consider the actual cause of death. Relying upon the provisions of section 59 of the Cr. P. C. and section 38 of the Frontier Crimes Regulation, the learned counsel for the appellant Mr. Muhammad Nawaz Khan Kundi contended, that since the deceased had committed an offence of "lurking house‑trespass" which is a cognisable and non‑bailable' offence, his client had a right to arrest the deceased and use all necessary means for the purpose, and he could even cause his death to effect his arrest. This argument is based on the assumption, that the deceased had actually committed an offence of lurking house‑trespass, or a reasonable suspicion existed in the mind of the appellant, that the deceased had been concerned in a cognisable and non‑bailable offence, section 59, Cr. P. C. says :‑ "Any private person may arrest any person who in his view commits a non‑bailable and cognisable offence . . . . . . . . . . and without unnecessary delay, shall make over any person so arrested to a police officer, or . . . . . . take such person or cause him to betaken in custody to the nearest police station . . . . . . . . . . ". A comparison between section 54 and section 59 would make it at once clear, that while a police officer can arrest a person without warrant, if there is a "reasonable suspicion" of his having been concerned in a cognizable offence, a private person cannot arrest on mere suspicion, howsoever reasonable it may be. The offence must be committed "in his view". The words "in his view" mean "in his presence" or "within his sight", and not "in his opinion". It. is abundantly clear from the language of the section, that a private person cannot arrest an alleged offender, if he has not committed a cognisable and non‑bailable offence within his sight Since it has been conceded, that in the present case the deceased committed no cognisable and non‑bailable offence within the sight of the appellant, the provisions of section 59 are of no help to him. Section 38, F. C. R., however, vests wider power in a private person, in respect of the arrest of an alleged offender. Subsection (i) of section 38 says :‑ "Any private person may, without an order from a Magistrate and without a warrant, arrest . . . . . . any person who has been concerned in any cognisable offence, or against whom a reasonable compLalnt has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned". Subsection (ii) lays down :‑ "Section 46 of the Code of Criminal Procedure, 1898, shall be read as if the following subsection were added thereto, namely :‑ "(4) But this section gives a right to cause the death of a person against whom those portions of the Frontier Crimes Regulation, 1901, which are not of general application, may be enforced‑ (a) If he is committing or attempting to commit an offence, or resisting or evading arrest, in such circumstances as to afford reasonable ground for believing that he intends to use arms to effect his purpose, or . . . . . . . . . . . . . . . It will be noticed, that while section 59, Cr. P. C. did not give any power to a private person to arrest an alleged offender unless he has committed the necessary offence "in his view", section 38, F. C. R. invests a private person with power to arrest an offender, if "reasonable suspicion" exists of his having been concerned in any cognisable offence, and further gives him a right to cause the death of the offender, if the offender is "resisting or" evading arrest in such circumstances as to afford reasonable ground for believing that he intends to use arms to effect his purpose". It is common ground between the prosecution and the defence, that Shafqat Bakhsh deceased was‑ unarmed. As such, the appellant had no right to cause his death. It must, however, be conceded, that under this provision of law the appellant had a right to arrest the deceased and to use all necessary means to effect the arrest, provided a "reasonable suspicion" existed of his having been concerned in the commission of a cognisable offence. This bring us to the determination of the crucial question, whether any "reasonable suspicion" existed of the deceased's having committed a cognisable offence, in the mind of the appellant. According to Mr. M. N. Kundi, the deceased had entered the Officers Mess quite stealthily and when challenged by his client, he jumped across the compound wall and started running. This conduct of the deceased was quite sufficient to create "reasonable suspicion" in the mind of the appellant, that he (the deceased) had committed the offence of lurking house‑trespass. In all "lurking house‑trespass", there must be "house‑trespass" and in all "house‑trespass", there must be "criminal trespass". Unless, therefore, the intent necessary to prove the offence of "criminal trespass" is present, the offence of "lurking house trespass" or "house‑trespass" cannot be committed. In other words, intention is the essence and gist of the offence of "lurking house‑trespass". Where intention is not proved, no offence of "lurking house‑trespass", or "house‑trespass" can be said to have been committed. " criminal trespass" is defined by section 441, P. P. C. as under :‑ "Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property . . . . . . . is said to commit "criminal trespass". It will be seen, that before a person is held guilty of "criminal trespass", it must be shown, that he had the intent "to commit an offence, or to intimidate, or to insult or to annoy any person to possession of such property". It has been frankly, and we think quite rightly, conceded by the appellant's counsel, that the deceased had no intention to intimidate, insult, or annoy either his client, or any other person present in the building of the Officers ' Mess. He, however, maintains with great force, that since a theft had taken place in the Mess a few days prior to the occurrence, and that when the deceased was challenged he tried to run away not through the exit but across the compound wall, the appellant 7 was justified in entertaining a "reasonable suspicion", that the intruder was a thief. Upon full consideration of all the facts and circumstances of the case, we feel unable to accept the argument. In the first place, there is no evidence on the record beyond the bare allegation of the appellant, that the deceased had actually entered the building. By hinting at a bare possibility that the deceased had visited the Mess with an intent to commit theft, no such suspicion can be thought to be created, as might amount to "reasonable suspicion" within the contemplation of criminal jurisprudence. It is not sufficient for an accused person to suggest a mere, hypothesis, or a remote possibility, that the intention of the alleged trespasser was to commit theft. In order to bring the case within his legal right to arrest the alleged trespasser, it is absolutely essential for the accused person to set up facts upon which he may rely, as the basis of his "reasonable suspicion". In the present case, the appellant has failed to prove the essential elements of "lurking house‑trespass", or even. "house‑trespass", and no facts have been pointed out by the learned counsel for the appellant to enable us to arrive at the conclusion, that the deceased had either entered the Officers Mess, or if he had entered there at all, he had done it with "the intention to commit theft". Secondly, even if it is assumed for the sake of argument, that the deceased had actually visited the Officers Mess, the possibility cannot be altogether excluded, that he had gone there to meet a friend, or for some other innocent purpose. It is significant to point out here, that the deceased was a graduate in Science a Demonstrator in the Local College, and well dressed at the time of his alleged visit to the Mess, and further he went there in broad day‑light at about I p.m., when presumably some Army Officers must have been present, or were about to arrive there. Such an inopportune, time could not have been selected by the deceased for the purpose of committing theft. The deceased unfortunately did not live after the incident to give the correct origin and motive of the assault on him, and the motive suggested by the appellant, uncorroborated as it is, has not impressed us. We think the story given by the appellant, that the deceased had entered the building and when challenged he ran across the boundary wall, has been deliberately and falsely set up, as an answer to meet the prosecution charge. We have tried our best to get at the root of the origin of the incident and to find out the real motive with the degree of certainty which would have been sufficient to convince us beyond any reasonable doubt, but we have been unable to trace it out, because the evidence, which has been produced in the case, starts with that stage of the assault, when the deceased was first noticed running away outside the Officers Mess and the appellant and his com panions were pursuing him. As to the facts of the case, there is the unimpeachable testimony of disinterested eye‑witnesses, that the deceased was running ahead, and the appellant and Najib were chasing him, later joined by Musa and Rahmat Khan, and were hurling stones at him, until driven to the bank of the river the deceased jumped into the water, and when Allah Dad (P. W. 17) was rescuing him, the appellant and Najib again pelted stones at him (the deceased), one of which struck him, as a result whereof he again fell into the water, got drowned, and never appeared again. As already pointed out, the version of the incident given by the appellant is not materially different from the one given by the prosecution, except that he (the appellant) denies, that he hurled stones, at the deceased at any stage of the pursuit. The deceased and P. Ws. Nazakit Hussain and Allah Dad were not even known to each other prior to the occurrence, and it was for this reason that the deceased has been described as an "unknown stranger" in the F. I. R. No enmity has been proved between these witnesses and the appellant. The occurrence took place at about 1‑15 p.m. and the report was lodged with utmost promptitude (within 15 minutes of the incident). Their testimony has been fully corroborated by the medical evidence, that the deceased had 6 injuries on his person, caused with a blunt weapon, possibly with stones. On consideration of the entire evidence brought on the record, we feel fully convinced, that the occurrence took place in the manner described by the eye‑witnesses. The only question of substance now left for decision is, as to what caused the death of the deceased, and how far the appellant is responsible for it in the legal sense. In order to correctly assess the criminal liability of the appellant, we have first to examine the medical evidence. According to the Doctor who conducted post‑mortem examination on the dead body, the deceased died of concussion of brain caused by the stroke of a stone resulting injury No. I (on the left eye brow and the adjacent part of the forehead), which was sufficient in the ordinary course of nature to cause death because of the resultant concussion. He, however, cannot exclude the possibility of the deceased having died of the shock of drowning. At the same time, he is definitely of the opinion, that the death was not due to Asphyxia (drowning). He further tells us, that there can be a concussion of the brain without a fracture. That the deceased did not die from the shock of drowning is crystal clear from the proved fact, that after he jumped into the river he was seen making efforts to save himself. It was after sometime that P. W. Allah Dad also jumped into the water to rescue him. When he caught hold of the deceased, the latter climbed his shoulder and clung to him. The desperate struggle, which the deceased had been making all this time, makes it perfectly clear, that he did not die of the shock of drowning. The Doctor is firmly of the opinion, that the deceased could not have died of the. shock of drowning, if after he jumped into the water he had made efforts to save himself by climbing the shoulder of another person and clinging to it. Since we have accepted the story of Nazakat Hussain and Allah Dad as true, we must reject the suggestion made by the appellant's counsel, that the deceased died of the shock of drowning, when he first jumped into the river. When we examine the medical evidence in the light of the testimony of Nazakat Hussain and Allah Dad, we have no difficulty in reaching the conclusion, that the deceased died of the concussion of brain, caused by the stroke of a stone, which was hurled at him by the appellant just at the moment, when he was being rescued by Allah Dad. On this point, Nazakat Hussain (P. W. 2) stated in the trial Court:‑ "Allah Dad P. W. thereupon jumped into the river, and at the same time I requested all the four accused not to throw stones on the stranger. Allah Dad succeeded in catching hold of that stranger and made him rest on the back of his shoulder and in the meanwhile Illahi Bakhsh accused picked up a stone, as big as a tennis ball and threw it, hitting probably the neck of the stranger with the result that the stranger fell down again into the water. Allah Dad was feeling exhausted and he was going to drown, while the stranger disappeared altogether in water." It is quite clear from the statement of Nazakat Hussain, that it was the appellant who hit the deceased with a stone, when he was being rescued by Allah Dad, that thereafter the deceased fell down from the shoulder of Allah Dad into the water and disappeared, and that he was not seen again. It may be pointed out here in passing, that though according to Nazakat Hussain the stone hit probably the neck of the deceased, the fact of the matter is, that the deceased was hit on his forehead and the adjoining eye‑brow He had also another contusion mark 2 " x 2" over the left cheek. Anyhow, the point is not very material, because it is extremely difficult for a person to locate precisely the seat of an injury at a time, when the entire atmosphere around is charged with tension and events move with lightening speed. It all depends upon one's capacity of observation. This brings us to the last question, as to what offence the appellant has committed. While the learned counsel for the appellant contends, that his client is guilty if at all, of causing simple hurt with blunt weapon, the learned Additional Advocate- General argues, that the act of the appellant is covered by clause (4) of section 300, P. P. C., in as much as he must be presumed to have known that his act was so imminently dangerous that it must in all probability cause death, or such bodily injury as was likely to cause death. On careful examination of the definition of "murder", as given under section 300, P. P. C., we are of the opinion, that the act of the appellant does not amount to "murder". If the deceased had died of ASPHYXIA (drowning), it could have been argued, and there would have been some force in the argument, that the appellant was presumed to have had the knowledge that his act was so imminently dangerous that it must in all probability cause death by drowning. But we know it for certain on the authority of the Doctor who conducted post‑mortem examination on the dead body, that the deceased did not die of drowning, but of concussion, which is also a kind of shock. We are unable to appreciate the argument, that when the appellant threw a stone of the size of a tennis ball, as stated by P. W., Nazakat Hussain, at the deceased, he must have known that his act was so imminently dangerous that it must in all probability cause death, or such bodily injury as was likely to cause death, particularly when no fracture of the skull, or of any other bone was caused. However, in our opinion, the appellant must have had the knowledge, or at least he is presumed to have had the knowledge, that when he was throwing a stone at a drowning man who was desperately endeavouring to save himself and another person was trying to rescue him, his act was likely to cause death, because he was interfering with the process of relief to the man. His act, therefore, would come within the mischief of section 299, P. P. C. and would amount to simple culpable homicide. Since the appellant had only the knowledge that his act was likely to cause death, but had no intention to deliberately cause the death, his case will be covered by Part II of section 304, P. P. C. Accordingly, we alter the conviction of the appellant from under section 302, P. P. C. to one under section 304, Part II, P. P. C. and sentence him to 7 years' R. I. with this modification the appeal is dismissed. His death sentence is not confirmed. K. B. A. Appeal dismissed.