P L D 1954 Lahore 103 (PLP)

KAIKAUS, J.‑This is an appeal from jail by one Manzur Husain Shah who was tried under section 302 P. P. C. for the murder of one Ashiq Husain by poisoning. He has 'been convicted of an offence under section 328 P. P. C. and sentenced to rigorous imprisonment for three years. The appellant as well as the deceased are malangs. The appellant used to observe the anniversary of Hazrat Abbas Alamdar on the 27th Har every year when the malangs would assemble at his place. In the year 1952, 27th fell Har on the 10th of July. On that date similarly malangs collected at the dera of the appellant. They went on taking bhang and dancing during the night. At about chhahwela on the 11th of July 1952, Ashiq Husain deceased who was one of them, said that the ordinary booty drinks were no longer affording him any intoxication and that they should get a maund or two of booty for drinking and eating. At this the appellant went inside his dera and brought out a white pill of the size of a her. He threw it on the ground and said "whoever does not feel intoxicated with booty that mai ka tat may eat this". Ashiq Husain deceased took up the pill. He looked at it for some time, put it in his mouth and commenced chewing it. One Gulzar Ali malang, who has appeared as P. W. 3, asked him to take care. The deceased replied that he did not mind for if he died by taking the pill he would die the death of Hazrat Imam Hasan. Accord ingly he ate the pill. About half an hour afterwards he fell ill and began vomiting and passing stools. His condition became grave, he fell unconscious and was carried by the malangs to Chak Jhumra Hospital. The doctor was unable to render any effective help at that stage and Ashiq Husain died at 7 p.m. The doctor sent information of the occurrence to the police by a ruqqa. The doctor had also taken the stomach washing of the deceased, sealed them in a bottle and handed them over to the police for examination by the Chemical Examiner. A post‑mortem examination of Ashiq Husain along with an examination by the Chemical Examiner of the contents of his stomach revealed that he had met his death by arsenic poisoning. Arsenic weighing 3 grain was found in the stomach and the large intestines. The stomach washing also contained arsenic. The prosecution case is supported by two eye‑witnesses. The first is Gulzar Ali (P. W. 3), who is one of the malangs who took part in the dancing and the bhang feast that was going on in the dera of the appellant on the 10th and 11th July 1952. He supported the prosecution story and stated that when the white pill was brought by Manzur Husain Shah appellant he warned the deceased not to take it, but the deceased said that he would die the death of Hazrat Imam Hasan. The witness told him that Hazrat Imam Hasan had been poisoned by somebody else and he was poisoning himself. Still the deceased did not desist from taking the pill. The other witness Ashraf‑alias Mastana (P. W. 6) is also one of the malangs and he too says that the appellant had brought the pill and challenged any mai ka lal who did not feel intoxicated to take it. Ashraf alias Mastana P. W. had been examined before the committing Magistrate but when the case came up before the learned Sessions judge he could not be found. His statement, therefore, before the committing Magistrate had to be transferred to the Sessions record. The accused in a lengthy statement admitted that he held a mela in which bhang was taken by those who took part in it. He accepted also that Gulzar Ali and Ashraf P. Ws. were amongst the malangs who were present. He denied, however, that he ever threw a white pill before Ashiq Husain or chall enged him to take it. He produced no defence. In this case there is no reason why the witnesses should falsely implicate the appellant. Their presence at the spot is admitted and their statements are corroborated by the report of the Chemical Examiner. There is no doubt, therefore, as to the facts. The only question is as to the offence that has been committed. The learned Sessions Judge came to the conclusion that the accused had knowledge of the white pill being arsenic. He convicted him, however, only under section 328 P. P. C. That section applies if a person administers or causes to be administered any poison or stupefying, intoxicating or unwholesome drug, with intent to cause hurt or to facilitate the commission of an offence. I would agree with the learned Sessions judge that the accused did know the pill to be arsenic. There is no direct evidence with respect to this but his conduct in throwing the pill on the ground and challenging the deceased or any person who would not be otherwise intoxicated to take it leads to no other conclusion. In the absence of any indication to the contrary a person is pre sumed to know the nature of what he possesses but in this case there is the additional factor of the challenge which fixes the appellant with the knowledge of the nature of the pill. Sec tion 328 P. P. C., however, is not the appropriate section under the circumstances. That section would apply even if the intoxicating or stupefying drug produced no effects. In this case death has actually occurred. To decide what section would be applicable let us first determine the material facts. The appellant did know that the pill was arsenic. In throwing out a challenge he instigated the deceased to take the pill. When the deceased was taking the pill the appellant knew very well that the likely result was death. About the deceased, I am unable to find that he definitely knew the pill to be poison but he had a strong suspicion that it was poison. He was in a state of intoxication on account of the Mang which he had been taking and he did not care if he died as a result of taking the pill. The accused too was similarly intoxicated. Disregarding for the present the element of intoxication of the accused as well as the deceased, the question I have to determine is this what is the offence committed by a person who instigates another to do an act which he knows is likely to cause his death and which in fact results in the latter's death?' I am of opinion that this would amount to abetment of culpable homicide not amounting to murder. Under section 107 P. P. C. instigation is abetment. Under section 299 P. P. C. a person is guilty of culpable homicide if he causes the death by doing an act either with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that the injury is likely to cause death. Had the appellant instigated the deceased to cause the death of another person he would obviously be abetting murder. If he instigated him to cause his own depth, the only difference would be that it would be abetment of culpable homicide not amounting to murder because of exception 5 to section 300 P. P. C. which takes a case of consent out of the category of murder. A person who actually kills himself would be guilty of culpable homicide; though he cannot be tried for it. Section 299 which provides the definition of culpable homicide does not refer to the death of any other person. It simply mentions the causing of death and it can very well apply to the case of one's own death. I there be any doubt about this proposition it is clarified by Exception 5 to section 300 and the Illustration to that Excep tion. According to Exception 5, culpable homicide is not murder if the person whose death is caused (if he be above the age of 18 years) suffers death or takes the risk of death with his own consent. The Illustration shows that if A causes a person under 18 years of age to commit suicide, he abets murder. It is not culpable homicide not amounting to murder, because of the age of the person involved. Being under 18 years he is regarded as not capable of giving a valid consent. In the present case I have held that the deceased could not be definitely fixed with the knowledge that he was taking poison and, therefore, he may not have been guilty of culpable homicide by causing his own death. The offence of the abettor, however, is to be determined by virtue of section 108 P. P. C., on the assumption that the principal had the same knowledge as the abettor. The offence committed by the accused would, apart from the effect of intoxication, be abetment of culpable homicide. I will now consider the effects of intoxication. The intoxication of the deceased aggravates the offence. Although an ordinary abetment of suicide would be punishable as abetment of culpable homicide, cases where the consent of the person whose act results in his own death is affected by age, intoxica tion etc., are specially provided for in section 305 P. P. C. Under that section a person who abets suicide is liable to be punished with death or transportation for life or imprisonment for a term not exceeding ten years if the person whose suicide he abets is only under 18 years of age or insane or in a state of intoxication etc. The section only provides a punishment for the particular cases of abetment of suicide mentioned there under for the offence committed is abetment of culpable homicide. It may be asked why I have indulged in a discussion of culpable homicide and its abetment, if ultimately I was to refer to section 305 which seems to be the appropriate section. There are two reasons why I have done so. The first is that without the discussion the real nature of the offence committed would not be properly understood. But the second and the more important one is this : Unless I could show that to commit suicide is an offence, I would not be able to invoke the provi sions of section 108 P. P. C. It is only by virtue of that section that the knowledge of the abettor is attributed to the person whom he abets. In the present case we cannot say that the deceased committed suicide if by the phrase we mean an act which the deceased at least knew to be likely to cause his own death. The deceased had only a strong suspicion that the pill was some poisonous substance and he did not care if it caused his death. If, however, we are entitled to call in aid sec tion 108 P. P. C. we will judge of the criminality of the act of the accused by imputing to the deceased the same knowledge which the accused had viz. that the pill was arsenic. For the application of section 108 P. P. C. it would, however, be neces sary that the act of the principal (in this case the deceased) was one which, with the knowledge and intention of the abettor, and with a capacity in the principal to commit an offence, could become an offence. If a deliberate act of suicide by a person not debarred from committing offence on account of age etc. be not an offence at all section 108 would have no application: I, have, therefore, had to explain that the abetment was of, an offence and the provisions of section 108 are attracted. The drunkness of the accused is not of any consequence. He had not been administered bhang against his will or without his knowledge. He was not even so intoxicated as not to understand the nature of his act. The prosecution does not rely upon section 86 P. P. C. His intoxication does not affect either the offence or the sentence. I find the appellant guilty of an offence under section 305 P. P. C. and alter his conviction accordingly. There is no appeal by the Crown and the sentence awarded is maintained. A. H. Conviction altered.