P L D 1953 Lahore 549 (PLP)

SHABIR AHMAD, J.‑--Mr. Ghulam Rabbani, Additional Sessions Judge, Lyallpur, having, by his order, dated the 30th December, 1952 sentenced Meraj Din, son of Ghulam Muhammad and Abdul Aziz, son of Muhammad Ali, to death under section 3021304 of the Pakistan Penal Code, the two convicted persons have presented separate appeals, the one by Meraj Din being Criminal Appeal No. 130 of 1953 and that of Abdul Aziz Criminal Appeal No. 131 of 1953. In addition, there is before us a reference by the trial Judge under section 374 of the Code of Criminal Procedure for confirmation of the two sentences of death. The two appeals and the reference for confirmation will be disposed of by this order. The learned trial Judge has found that the two appellants had, on the 15th of June, 1952, made Muhammad Bakhsh Kumhar eat laddus containing dhatura in order to facilitate the commission of theft and that the victim died because of the effects of dhatura. The prosecution led evidence to prove that on the 15th of June 1952 Chiragh Lambardar of Chak No. 217‑R. B., came across Muhammad Bakhsh deceased. As Muhammad Bakhsh was walking with a very staggering gait, Chiragh Lambardar supported him. Muhammad Bakhsh told Chiragh that the two men who were going a little ahead of him had made him eat something poisonous mixed with laddus and had thereafter deprived him of Rs. 84‑1‑6, of which Rs. 81 were in currency notes and the rest in coins. Chiragh raised an alarm at which the two appellants started running but were arrested at a distance of about 50 yards by Chiragh Lambardar, Sada, Pehlwan and Jumma Khan, the last three of whom had chased the appellants on the alarm of the Lambardar. A search of the tyro appellants led to the recovery of Rs. 84‑1‑6, some laddus and some dhatura. The two appellants were marched to Police Station Sadar Lyallpur, where Chiragh Lambardar made the first information report. Muhammad Bakhsh Kumhar died at about 1‑30 p. m. on the 15th of June 1952 and his body was subjected to post‑mortem examination by Dr. Hakam Din (P. W. 1) who was then Medical Superintendent, Civil Hospital, Layallpur. The doctor discovered no injury which could have caused the death of the deceased. The viscera of the deceased was sent to the Chemical Examiner to find out if there was any poison in it. The Chemical Examiner, Punjab in his report, which is Exh. P. J. on the record, stated that dhatura was detected in the stomach and the large and small intestines sent to him. The laddus and packets recovered from the two appellants by Chiragh and his companions were also sent to the Chemical Examiner who, in his report Exh. P. M., stated that all of them contained dhatura. On the expert medical evidence discussed above, there can be no manner of doubt that Muhammad Bakhsh died of dhatura Poisoning. The main question to consider is whether or not the prosecu?tion had succeeded in establishing that the poison that killed Muhammad Bakhsh deceased had been administered to him by the two appellants. To connect the two appellants with the crime, the prosecution relied on the statement of Muhammad Bakhsh, the victim, and the recoveries made from the two appellants before they were taken to the police station. Chiragh (P. W. 4) stated in clear terms that Muhammad Bakhsh deceased had told him that the two appellants had given him laddus to eat and had thereafter deprived him of his money. I can see no reason why the statement of Chiragh (P. W. 4), who is not shown to have any animus against either of the appellants, should not be accepted as correct. The statement which the deceased made was a dying declaration and, therefore, admissible in evidence under section 32 of the Evidence Act. Chiragh (P. W. 4) stated that when he had been informed by the victim that the two persons going a little ahead had administered something deleterious to him and had thereafter robbed him of his money, he had raised an alarm so that those two persons may be caught and that Pehlwan, Jumma Khan and Sada had run after those two men and caught them. Pehlwan (P. W. 5) and Jumma Khan (P. W. 6) corroborate Chiragh (P. W. 4) in so far as their part in the matter is con?cerned. P. W. 5, and P. W. 6 are, like P. W.4, entirely indep?endent and one can see no reason why they should not be believed. The evidence discussed above proves that Muhammad Bakhsh deceased had named the two appellants as the persons who had given him laddus after eating which he felt unwell. This evidence is, in my view, sufficient to prove that it were the appel?lants who administered dhatura to the deceased and I would have had no hesitation in accepting this evidence as sufficient for the proof of that fact. However, there is other evidence which strongly corroborates the statement of the deceased with regard to the two appellants This corroboration is furnished by the recoveries from the two appellants. In the first information report it was mentioned that the search of Meraj Din appellant yielded a handkerchief containing laddus, a bag containing Rs. 81 in currency notes and change for Rs. 3‑1‑

6. With regard to Abdul Aziz appellant it was said in the first information report that his search resulted in the recovery of Rs. 45, a cloth bag containing powder of dhatura and a packet which also contained some powder. In the Court of the learned trial Judge Chiragh (P. W. 4) stated that the search of Meraj Din had resulted in the recovery of the notes of the value of Rs. 81 and change of Rs. 3 as well as a pouch con?taining dhatura and the search of Abdul Aziz yielded currency notes of the value of Rs. 45 and a paper packet containing some? thing like dhatura. Pehlwan (P. W. 5) stated that on search of one of the accused persons was found dhatura and a paper pouch and from that of the other a paper packet containing dhatura, and that the person who had dhatura in the paper packet had also laddus with him. On this part of the prosecution case Jumma Khan (P. W. 6) said that money and dhatura were recovered from the two accused. No doubt, there is a slight discrepancy between the first information report made by Chiragh (P. W. 4) and his statement in Court with regard to the recoveries but that dis?crepancy is very minor and, as it appears to have been due to lapse of memory of the witness on account of the fact that he gave evidence in Court more than six months after the recoveries, I do not think that the discrepancy can adversely affect the prosecution case. Nor, in my opinion, can the fact that Pehlwan (P. W. 5) and Jumma Khan (P. W. 6) did not give the details of the recoveries in any manner adversely affect the prosecution case. I would hold it established, therefore, that the money which Muhammad Bakhsh, the victim had said had been stolen from him was recovered from the possession of Meraj Din appellant along with some dhatura and some dhatura powder was recovered from the possession of Abdul Aziz appellant. These recoveries so strongly corroborate the statement of the dying man that the two appellants had given him laddus to eat which made him feel unwell that it can be safely held to have been established beyond all reasonable doubt that the two appellants had administered dhatura to the deceased which resulted in his death. ?????????????????????????????? The question then that arises is what offence the appellants had committed. The learned trial Judge while dealing with this aspect of the case remarked as follows:? ??????????????????????????????????? "The circumstances pointedly show that both of the accused had a common intention in administering dhatura poison to the deceased in order to steal his money. Their knowledge that dhatura may cause the deceased's death must be presumed and so must be presumed their intention of causing the death. I, therefore, convict the two accused under section 302 read with section 34, P. P. C." ??????????????????????????????????? I agree with the finding of the learned trial Judge that the object with which dhatura was administered to Muhammad Bakhsh was to deprive him of his money. The question, there?fore, arises if this finding must necessarily lead to the finding that the offence committed was one of murder. ??????????????????????????????????? It appears to me that the finding of the learned trial Judge, that when administering dhatura to the deceased the appellants had the intention to steal his money as well as to kill him, is not correct. I hold this view not because I think that while doing an act a person cannot have more than one intention but because the evidence does not definitely prove an intention to kill the de?ceased. There was no ill‑will between the parties and the mere fact, therefore, that the deceased was given a poisonous drug to eat does not necessarily connote an intention to kill because the intention appears to have been merely to stupefy the victim in order that he may not resist his being deprived of his money. But the finding that the appellants had no intention to kill the deceased would not necessarily take the case out of the purview of section 300 of the Pakistan Penal Code, if it were established that any of the clauses (2) to (4) of that section was applicable to the case as the finding that there was no intention to kill would only exclude the application of clause (1) of that section. I will, therefore, consider if the evidence produced by the prosecution establishes facts which would attract the provisions of clauses (2) to (4) of section 300 of the Pakistan Penal Code. Before, however, dealing with that part of the case I will examine some authorities which have dealt with the question. The ques?tion whether or not in cases where death results because of the ad?ministration of Dhatura, the offence amounts to murder has been considered in decided cases, some of which were cited by the counsel for the parties. The first cited case was Queen Empress v. Tulsha (I L R 20 All. 143). In this case the accused had administered dhatura to some members of her family in order to facilitate her elopement with her lover. The three persons who partook the meals in which the woman had put dhatura did not die but were taken ill. She was convicted under section 307 of the Penal Code and sentenced to transportation for life. On appeal, it was argued on her behalf that, as she intended only to incapacitate her relatives for the time so that she might fly with her lover, the intention was not to cause death, but the two learned Judges who heard the case held that it should be presumed that people of the age of 20, as the accused in that case was, were aware that death might be caused by administration of dhatura. The next case of the Allahabad High Court which dealt with this question was I L R 30 All.

568. In this case two accused were found to have administered dhatura to certain travellers for the purpose of facilitating the robbery of their property and as a result one of the travellers died. They were acquitted of the murder charge but convicted under section 304 and section 328 of the Penal Code without the part of section 304 being specified. The convicts and the Government appealed against this order, the former to have the conviction set aside and the latter to have the accused convicted under section

302. The result was that the conviction under section 304 was altered to one under section 325 of the Penal Code but the conviction under section 328 was maintained. In the body of the judgment no reference was made to I L R 20 All. 143 but it appears from the report that that decision was cited during arguments. In I L R 31 All. 140 where dhatura was administered with the object of facilitating robbery but caused death, the case was held to fall under section

302. It appears, however, that the offence was held to fall under section 302 of the Penal Code because, from the fact that the victim died within three or four hours of the administration of the drug, it was presumed that the quantity of the drug must have been very large. In I L R 45 All. 657 it was held that if a person recklessly administers dhatura to another, who dies, the offence is one of murder and not merely of culpable homicide not amounting to murder of grievous hurt. The Bombay High Court has, in A I R 1926 Born. 518, followed the view taken by the Allahabad High Court in I L R 20 All. 143 and so has the Nagpur High Court in A I R 1940 Nag. 125 and A I R 1933 Nag.

303. In 19 Punjab Record 1919 (Criminal), a Division Bench of the Punjab Chief Court consisting of Shadi Lal and Martineau, JJ. took the view that in that particular case the accused, who had caused the death of two persons by administering to them dhatura in order to facilitate the commission of robbery, were guilty of an offence under section 326 of the Penal Code and not under section

302. In that case I L R 20 All. 143 was not followed. In the same Court in Pira v. The Empress (28 Punjab Record 1881 (Cr.)) a similar question required decision though not directly and one of the learned Judges, namely, Plowden J, remarked at page 71 of the report as follows:‑ "I am certainly not prepared to lay down as a rule of law, that two persons associated for the purpose of committing robbery by means of dhatura poisoning, are associated for the purpose of committing robbery by means of murder. Whether the purpose involves the commission of murder must depend principally upon the modus operandi intended to be employed, or in fact employed In the case of dhatura poisoning, the usual modus operandi would be more or less precisely ascer?tained chiefly by the effect actually produced on the victims, and would afford material for determining whether the pur?pose of the operators included murder. If two highly educated men ascertained by experiments the exact quantity of dhatura which might be administered to an adult so as to produce stupefaction but without endangering life, and they then committed by means of dhatura a series of robberies, without in any instance fatal consequences ensuing from the dhatura, it would certainly be extremely difficult to sustain a conviction under section 311??.The use of dhatura, on the other hand, in order to facilitate the commission of robbery, does not per se and necessarily import the contemplation of the victim's death as a means towards, or as incidental to, the main end of robbery. Judicial experience shows that numerous robberies are committed with the aid of dhatura, without fatal results. The fact being that dhatura both can be and is in practice frequently used by robbers without fatal results ?." In another case, namely Lala v. The Crown (32 P L R 1911) the accused who had caused the death of two persons by administering dhatura, was held to be guilty of murder because it was found that he was an expert in the use of dhatura and knew that its administration was so imminently dangerous as to bring the case within the definition of murder punishable under section 302 of the Penal Code. In Kesar Din v. Emperor (A I R 1920 Lah. 375) a Division Bench of this Court consisting of Shadi Lal and Wilberforce, J J., held that the accused, who had administered dhatura to a husband and wife for the purpose of robbery, was guilty of murder. In the body of the judgment it was remarked:‑ "The only question remaining, therefore, is with what object dhatura was administered. In such cases its use may be merely in order to facilitate the commission of robbery and it does not per se and necessarily import contemplation of the victim's death as a means `towards' or as incidental to, the main end of robbery, as is remarked by Plowden J., in Pira v. Empress (supra). In every case, however, of this description the cir?cumstances of the particular case must be taken into considera?tion and the best indication of the intention of the offender can be gathered from the amount of dhatura which he administers....In the present case it is clear that a very large amount of dhatura was administered to the victims, as in spite of immediate medical assistance neither of them recovered." In Rana v. Emperor (A I R 1930 Lah. 90), a Division Bench of this Court consisting of Shadi Lal, C. J., and Tapp, J. held that the accused, who had killed a body by administering dhatura to him in sharbat, was guilty of the offence of murder. Whether or not an offence committed by a person who cause the death of another by administering dhatura amounts to murder must depend upon the facts of each particular case, because the offence would be murder only if the act which caused death was done with the intention or the knowledge mentioned in section 3 of the Pakistan Penal Code, and intention and knowledge are questions of fact which can only be decided on the circumstance of each case. The majority of the judicial authorities mentioned above have also considered the question in the light of the circum?stances of the particular case dealt with. It is, in my view, not possible to lay down as a principle of law that a person who A causes death by administering dhatura poison would in all cases be guilty of the offence of murder. If it were proved in a particular case that the quantity of dhatura administered was very large, intention or knowledge contemplated by section 300 of the Pakistan Penal Code may be presumed. But if the quantity o dhatura administered is not large, it will, in my opinion, be un?safe to hold that the offence committed was one of murder, espe?cially when it is proved that dhatura was administered not because of any ill‑will but merely to facilitate the commission of robbery or some other offence of like nature. I might here remark, with all respect to the learned Judges who decided the case, that the finding in 19 P R 1919 (Criminal) that the offence committed fell under section 326 of the Penal Code was not correct. An offence under section 326 of the Penal Code is committed if grievous hurt is voluntarily caused inter alia by poison. Grievous hurt is volunta?rily caused if the hurt which the offender intends to cause or knows himself to be likely to cause is grievous hurt and causes that hurt. Section 320 of the Penal Code classifies hurts which are designated grievous for the purpose of the Code. It is only the eighth clause of that section which could possibly make the case of dhatura poisoning fall within section 320; the eighth clause lays down that any hurt which inter alia endangers life is grievous hurt. Now if a person either intends to cause or knows himself likely to cause hurt which endangers human life and thereby causes death, it in difficult to hold that the offence committed by him is one under section 326 and not a more serious one. In the case of dhatura poisoning it is obvious that the offender intends to cause pain and therefore to cause hurt but that alone cannot be sufficient for holding that he intends to cause hurt which endangers human life. In the present case the medical evidence does not show what quantity of dhatura was administered to the victim. There isl no direct evidence as to the time when dhatura was administered, but it would appear that it was administered the day that the victim died. According to the statement of Dr. S. R. H. Rizvi, Medical Officer, Civil Hospital, Lyallpur, at about 1‑15 p.m., one the 15th of June 1952, two men in unconscious condition, one of whom was Muhammad Bakhsh, the victim in the present case, were brought to the Civil Hospital, Lyallpur, and died) there a few minutes later. There is no evidence that any medicine was given to Muhammad Bakhsh deceased with a view to doing away with the effects of dhatura, but the omission to give medicine would not materially affect the offence committed. In the 11th edition of Modi's book on Medical Jurisprudence and Toxicology, at page 650, it is mentioned that the fatal dose of dhatura is uncertain and that in the majority of cases of death from dhatura poisoning death usually occurs within twenty‑four) hours of the administration of the poison. In the state of the evidence on the record, it is, in my view, not safe to hold that dhatura was given with the intention mentioned in clauses 2 and 3 of section 300, P. P. C. or with the knowledge that the act was so imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death. 1 have already mentioned that the evidence and the circumstances do not point to an intention to kill the victim and as the other three clauses of section 300 of the Pakistan Penal Code are also inapplicable, the case was not one of murder made punishable by section 302 of the Pakistan Penal Code. It is common knowledge that dhatura in addition to being a stupefier is a poison also and it can therefore, be safely held that in the present case dhatura was given at least with the knowledge that it was likely to cause death. This would make the case fall within section 304, Part II of the Pakistan Penal Code and I would, therefore, hold that the appellant who administered the dhatura had been guilty of an offence not of murder punishable under section 302 but of culpable homicide not amounting to, murder made punishable by the second part of section 304 of the Pakistan Penal Code. It is possible that both the appellants administered the poison to the victim, but as that cannot be found as a fact on the evi?dence in the case, I will proceed on the assumption that only one of them did so. It is not known which of the two appellants actually administered dhatura to the victim, but the circumstances make it clear that both of them had entered into a conspiracy to administer it to the wayfarers with the object of robbing them, and it was as a result of this conspiracy that one of them administered the dhatura. This would make the person who did not administer the dhatura an abettor and as it is proved that he was present at the time when it was administered, he would by virtue of section 114 of the Pakistan Penal Code be deemed to have committed the offence which not he himself but his compa?nion in fact committed. In this view, of the matter both the appellants would be guilty of the offence under section 304 Part II of the Pakistan Penal Code. I would, therefore, partly accepting the appeal, after the conviction of both the appellants to one under section 304 Part II of the Pakistan Penal Code and decline to confirm. the sentence of death passed on each of them. The offence committed was very heinous and, in my view, no sentence of imprisonment short of the maximum prescribed for the offence would meet the ends of justice. I would, therefore, sentence each of the appellants to rigorous imprisonment for ten years. ??????????? S. A. RAHMAN, J.‑

I agree. A. H. ?????????????????????????????????????????????????????????????? Conviction altered : sentence reduced.