P L D 1957 (W (PLP)

SHABIR AHMAD, J.‑

Having, by his order dated the 27th of December 1956, sentenced Ghulam Nabi, son of Jamal, a Baloch, resident of Taranda Sahibyarkhan, to death under section 302 of the P. P. C., and to seven years' rigorous imprisonment and a fine of Rs.50, default of payment of which would entail further rigorous imprisonment for six months under section 369, of that Code, Syed Tafazzul Husain, Sessions Judge, Rahimyarkhan, has referred the case to this Court for confirmation of the sentence of death as required by section 374 of the Code of Criminal Procedure, while the condemned man has presented an appeal. The reference for confirmation and the appeal will be disposed of by this order. The prosecution case against the appellant was that he had, at about noon on the 9th of October 1954, kidnapped a child, aged about five or six years, Maqsudan by name, who was the daughter of Ali Murad, resident of Basti Zahri Baloch in the district of Rahimyarkhan, and after removing her ornaments thrust earth in her mouth and strangled her to death. The occurrence, as mentioned earlier, took place on the 9th of October 1954, on which date the child went to her father Ali Murad when he was ploughing land and asked him to give her some money. He told her that she should go to his shop where her uncle was and get some sweets from there The child went to the shop and took some sweets and left for her house, but was not seen alive by her parents thereafter. When the child did not return home till late in the noon, the parents naturally got anxious and started a search and had her description proclaimed by beat of drum. Some time in the afternoon, Wazira, a resident of Basti Zahri Baloch, met the uncle of the girl and told him that he had seen a sallow‑coloured man take the girl with him to the fields and there beat her, and when asked why he was beating the child the man had said that the child, who was his daughter, would not obey his orders. The search continued and the dead body of the child was discovered in a field. The gold ear‑rings and silver bangles which the child had been wearing were missing and her ears had been torn at places, evidently because the miscreant, who committed the theft of the ornaments, did not take out the ear‑rings and pulled them out. On finding the body, Ali Murad made a report at Police Station Khanpur, in the district of Rahimyarkhan, in which he mentioned, inter alia, that the dead body of the child had been recovered as well as the information given to him by Wazira, but did not give the name of the culprit. Investigation continued but yielded no result till the 27th of January 1955. On the 27th of January 1955, the appellant was brought to Police Station Khanpur by some persons, including Muhammad Arif, a Lambardar of Chak No. 31, who reported that the ear‑rings of his daughter Zohra Begum had been removed by the appellant who was caught and brought to the police station. in this report, it was said that the appellant had confessed to Muhammad Arif and others that he had removed the ornaments of a number of children, one of whom died when he put earth in her mouth after removing her gold ear‑rings. After the arrest of the appellant on the 27th of January 1955, the police further investigated the case relating to the death of Mst. Maqsudan. On the 30th of January 1955, the appellant made a statement before a Magistrate of the 1st class with powers under section 30 of the Code of Criminal Procedure, in which he confessed that he had put earth in the mouth of a child whose ornaments he had removed and that very day gave information which led to the recovery of some ornaments from Ibrahim goldsmith who produced a writing which showed that, the ornaments had been sold to him by the appellant on the 9th of October 1954, for Rs.

90. At the trial the prosecution produced evidence on the following points :‑ (1) That near about the time of the discovery of the dead body of the child Maqsudan, the appellant was seen in her company by Wazira (P.W. 13) ; (2) that on the 9th of October 1954, nearabout the time of the discovery of the dead body of the child Maqsudan, the appellant had sold her ornaments to Ibrahim goldsmith ; (3) that when apprehended by some persons for stealing ornaments of another child, on the 27th of January 1955, the appellant had made an extrajudicial confession that he had thrust earth in the mouth of a child whose ornaments he had removed and had thereby killed her, and (4) that the appellant, on the 30th of January 1955, confessed before a Magistrate that he had thrust earth in the mouth of a child whose ornaments he had removed and thereby killed her, and (5) that after the occurrence the appellant left his place of residence, to which he did not return for about three months. The learned trial judge relied on all the abovementioned pieces of evidence but the one relating to the extra‑judicial confession alleged to have been made by the appellant on the 27th of January 1955. His reason for not relying on the extra‑judicial confession was that because of some remarks made by the High Court of Bahawalpur in Karam Khatoon v. The Crown (PLD 1950 BJ 34), the learned trial Judge thought that the extra judicial confession was entitled to no weight. When questioned by the committing Magistrate to explain the evidence against him, the appellant said that he had nothing to do with stealing the ornaments, or taking the life, of the child Maqsudan. He admitted that he had made a confession before a Magistrate but said that he had done so because the police had beaten him. He denied having made an extra‑judicial confession and added that he had been falsely implicated. In the Court of Session, his statement was to the same general effect as his statement in the Court of the committing Magistrate. Explaining why he was being named as the culprit, the appellant said in the Court of the learned trial Judge that he was a servant of Nur Muhammad whose friend Shah Muhammad had taken lease of a lorry- stand which formerly used to be with Muhammad Arif and on that account Muhammad Arif had falsely implicated him. He produced two brothers as defence witnesses, namely, Ghulam Haider (D.W.1) and Muhammad Bakhsh (D.W. 2). They stated that they were in the custody of the police when the case relating to the death of the child Maqsudan was being investigated and that one Rashid was called by the police in connection with that case but was afterwards allowed to go away. The defence evidence was not accepted by the learned trial judge, and after considering it carefully I have formed the opinion that the learned trial judge followed the right course in this matter. No evidence was led that Muhammad Arif had any motive to falsely implicate the appellant. It cannot, however, be overlooked that it was only in the Court of the learned trial judge that the appellant took up the position that he had been falsely implicated by Muhammad Arif. There is no proof that Nur Muhammad, with whom the appellant claimed to have worked as a chauffeur for some time, had a friend Shah Muhammad by name or that that Shah Muhammad had taken a lorry‑stand on lease or that that stand was previously with Muhammad Arif. I would, therefore, hold that the statement of the appellant that he had been falsely implicated by Muhammad Arif as well as the statements of the defence witnesses are entirely worthless. Having disposed of the defence case, I proceed to consider if the prosecution had brought home the guilt to the appellant. Before I deal with other evidence on the record, I might consider the extra‑judicial confession alleged to have been made by the a1ppellant on the 27th of January 1955, which piece of evidence, as mentioned already, was not taken into consideration by the learned trial judge. For some reason, there is a prejudice amongst Courts with regard to extra judicial confessions and, in view of the fact that there is generally no record about them and they can be falsely deposed to, the prejudice cannot ' be said to be misplaced. It is, however, manifest that a piece of evidence cannot be brushed aside simply on the ground that such pieces of evidence can easily be fabricated because the law is that the weight to be attached to any piece of evidence must in each case depend on the circumstances of that case. The extra judicial confession relied upon by the prosecution in the present case was not as worthless as the learned trial judge thought. It appears to have escaped the learned trial judge's notice that the report made to the police by Muhammad Arif on the 27th of January 1955, contained a mention of the extra‑judicial confession relied upon by the prosecution in the present case and that Muhammad Karam Shah (P.W. 19), who was one of the persons who marched the appellant to the police station on the 27th of January 1955, for removing the ear‑rings of a daughter of Muhammad Arif, stated that the appellant had confessed to having killed a girl by thrusting earth in her mouth when engaged in removing her ear‑rings. In these circumstances, the evidence about the appellant having made an extra‑judicial confession was as strong as evidence about such confessions can be, and as the mere fact that Muhammad Karam Shah (P.W. 19) was unable to give the exact words in which the confession was made cannot make the confession inadmissible in evidence, I would hold] that the learned trial judge erred in keeping the extra‑judicial confession out of consideration. Appearing as the 13th witness for the prosecution, Wazira stated that he had seen the appellant beat a small girl and when questioned by the witness why he had done so, the appellant replied that the child who was his daughter would not obey him. Information was given by Wazira (P.W. 13) to the paternal uncle of the child Maqsudan that he had seen a girl being beaten in a field by a sallow‑coloured man on the very day on which the unfortunate child had met with death and it was this information which had led to the recovery of the dead body from a field not far away from the place mentioned by Wazira. Then there is the fact that at an identification parade held by Sheikh Ata Ullah, Tahsildar, Sadiqabad, on the 30th of January 1955, Wazira (P. W. 13) had identified the appellant. The parade was held with all due precautions and as Wazira is not proved to have any motive for implicating the appellant, I hold that he had correctly named the appellant as the person whom he had seen beating a child on the 9th of October 1955. The sale of the ornaments of the child by the appellant to Ibrahim (P.W. 12) is deposed to by Ibrahim himself who produced a book in which the sale of the ornaments was entered. The entry with regard to the sale of these ornaments was stated by the witness to bear the thumb‑impression of the appellant and it is not without significance that the appellant gave no explanation how his thumb‑impression happened to be in a book kept by Ibrahim (P.W. 12). The appellant denied that he had sold the ornaments, but as the evidence of Ibrahim (P. W. 12) is convincing, I have no hesitation in accepting it. The depositions of Ali Murad (P. W. 14), father of the child Maqsudan, Mst. Sardaran (P. W. 15), aunt of the unfortunate child, Waryam, an uncle of Mst. Maqsudan, and Sher Muhammad, another uncle of Mst. Maqsudan, coupled with the statement of Rasul Bakhsh (P. W. 9) goldsmith who prepared these ornaments, prove conclusively that the ornaments recovered from Ibrahim (P. W. 12) belonged to Maqsudan and that they were being worn by her on the day that her dead body was discovered lying in the fields. Then there is the evidence that the appellant had given information which led to the recovery of the ornaments and it can, therefore, hardly be doubted that the appellant had sold the ornaments to Ibrahim. Mr. Nazir Ahmad Khan, Magistrate 1st class with powers under section 30 of the Code of Criminal Procedure, at Khanpur, had recorded the confession of the appellant (Exh. P. M.) on the 30th of January 1955. The Magistrate, appearing as the 2nd witness for the prosecution at the trial, deposed that he had taken all precautions to ensure that the confession was voluntarily made and was not the result of any inducement, threat or promise held out to the appellant. The statement of the Magistrate and the record kept by him prove conclusively that all necessary precautions had been taken to ensure that the confession was voluntary. The appellant in his statement in Court admitted that he had made the confession but ascribed his act to maltreatment by the police. There is, however, nothing on the record which might make one even suspect that the appellant had been coerced into making the confession and I would, therefore, hold that the confession was voluntary. With regard to the abscondence of the appellant, we have his own statement in the confession, Exh. P. M. The concession was voluntary and, in my opinion, entirely true, and the mere fact that the appellant resiled from it in the Court of the committing Magistrate cannot affect either its admissibility or its weight. It will, therefore, appear that the appellant had absconded, but, in view of the fact that there is only the statement of the appellant on this point, I would keep this item of evidence out of consideration. The facts established against the appellant, therefore, are that a short time before the dead body of the unfortunate child was discovered, he was seen with her; that on the same day he sold the ornaments which she was wearing shortly before her death; that when arrested on the 27th of January 1955. in connection; with another theft, he made an extra- judicial confession to being responsible for the death of a child whose mouth he had stuffed with earth that on the same day, he gave information which led to the discovery of the ornament worn by the child shortly before her death, and that on the 30th of January 1955, he made a confession which was recorded with all due formalities by a Senior Magistrate. It is true that the appellant did not say that the child he killed was Mst. Maqsudan, but the other evidence on the record proves that fact conclusively and I would, therefore, hold that the prosecution had established beyond all reasonable doubt that the appellant had kidnapped the child Maqsudan, had stolen her ornaments and had stuffed her mouth with earth. This leads one to the question what offence or offences the appellant is proved guilty of. The kidnapping of the child by the appellant and the theft of her ornaments by him being established, his conviction under section 369 of the P. P. C., was, undoubtedly, proper and is upheld. The sentence imposed by the learned trial judge for this offence is by no means severe and is maintained. I will now deal with the conviction of the appellant under section 302 of the P. P. C. Doctor Muhammad Bakhsh (P. W. 1) who performed the post‑mortem examination on the dead body of Maqsudan found thereon the following injuries :‑ (1) A lacerated wound in the lobule of the left pinna, triangular, through and through, 1/3" x ". (2) A contusion over the face near the outer angle of the left eye " x ". (3) A contusion over the front of the left shoulder continued down to the front of the left side of the chest, 6" x ". (4) A few scratches on the front of the left knee‑joint. (5) A contusion over the back of the left elbow‑joint, 1' x "1. (6) A faint transverse ligature mark round the neck below the level of thyroid cartilage, a black thread wrapped round the neck knotted on the right side,. A few scratches present on the right side of the neck. (7) Mouth and pharynx stuffed with mud, the mud over the mouth bore two impressions on it. The doctor said that in his opinion death had resulted from suffocation caused by the stuffing of the mouth and the nose with mud. The doctor was called as a Court witness in the Court of the learned trial Judge and in answer to a question stated that it was not necessary that death by suffocation may result when the, mouth and the nose of a person are stuffed. Relying on the opinion of Dr. Muhammad Bakhsh (P.W. 1), Mr. Wajid Ali Shah, who appeared for the appellant at Government expense urged that the offence did not fall under section 300 of the P. P. C., and was, therefore, not punishable under section 302 of that Code. His argument was that in view of the opinion of the doctor that death was not an inevitable result if the mouth and nose of a person are stuffed, it could not be said that the act of the accused was sufficient in the ordinary course of nature to cause death and, therefore, punishable as murder. He further argued that as the intention of the appellant was evidently merely to drown the shrieks of the child and not to cause her death, the offence was not one of murder but merely one of culpable homicide not amounting to murder, made punishable by the second part of section 304 of the P. P. C. Taking first the argument based on the opinion of the doctor, one finds that the doctor said in clear terms that death had resulted from suffocation, consequent on the stuffing of the mouth and the nostrils, and it is, therefore, manifest that in the present case the cause of death was the act of the appellant in putting earth in the mouth of the unfortunate child. The opinion given by the doctor was expressed too broadly because it is on a number of factors, such as the thing used to block the passages of breathing and the age and health of the person subjected to the act, that the result will depend, The learned counsel for the appellant urged that as the doctor was an expert in the science about which he gave evidence the Court has to accept his opinion. I agree with the learned counsel for the appellant that a doctor is an expert when deposing about the cause of death in a case and as to the sufficiency or otherwise of a particular thing to cause death but cannot agree that a Court is bound to accept as gospel truth each word of what a doctor states as an opinion. In law the statement of an expert stands on precisely the same footing as that of any witness and may or may not be accepted by Court. Ordinarily, the Court will be slow to reject the opinion of a witness who is an expert in the matter he deposes about but that is not to be understood to mean that the word of an expert is like law to the Court called upon to deal with his evidence as a witness. Moreover the opinion relied upon by the learned counsel for the appellant is on a matter about which even a layman knows quite a let. It is common knowledge that preventing a person from breathing is an act fraught with danger and if carried far is bound to result in death. The fact remains that in the present case death had resulted from the mouth and the nose of the unfortunate child getting completely blocked. In these circumstances the conclusion is irresistible that the appellant had brought about the death of the child and the act for which he was answerable was sufficient in the ordinary course of nature to cause death. I pass on to the argument of the learned counsel for the appellant that because the intention of the appellant was to merely smother the shrieks of the child and not to kill her the offence was not murder but only culpable homicide not amounting to murder. As there is nothing on the record to show that the appellant wanted to kill the child, I will act on the assumption that the intention of the appellant was merely to prevent the child from shrieking, but the mere absence of intention to cause death does not take an act out of the preview of the offence of murder. Section 300 of the P. P. C., which defines the offence of murder has four clauses and if the act falls within any of them, it amounts to murder and is punishable with death or transportation for life under section 302 of that Code unless an exception applies to the facts. The first of the four clauses of the section says that if the act which causes death is done with the intention of causing death the offence amounts to murder, while the fourth clause is to the effect that if the act which causes death is known by the person who does it to be so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and the act is done without any excuse for incurring the risk of causing death or the bodily injury likely to cause death, the offence amounts to one of murder. It follows, therefore, that if the act of the appellant was ‑ fraught with the danger envisaged by the fourth clause of section 300 and the appellant had the knowledge that it was fraught with that danger, the case will fall within section 300 of the P. P. C., because none of the Exceptions was pleaded and application of none of them is established. Questions regarding knowledge and the imminence of danger, consideration of which arises for the purpose of determining whether or not the act falls under clause 4 of section 300 of the P. P. C., are like the one relating to the intention of the person doing an act, purely those of fact, which will depend on the circumstances of each case. An act may be imminently dangerous in one set of circums tances but may not be so in others. Taking the act that falls for consideration in the present case as an example, the thrusting of earth in the mouth of a grown up person may not be imminently dangerous, but it is imminently dangerous when the victim, as in the present case, is a child of about six years. The question of the knowledge mentioned in the fourth clause of section 300 of the P. P. C., presents no difficulty because it does not require a course of studies at a medical school or college or training in the medical profession to know that if the respiration of a person is completely stopped, death must inevitably result. If an ordinary person' must know that an act is so imminently dangerous that it will, in all probability, cause death or such bodily injury as is likely to cause death an accused person charged with the doing of such an act will be presumed to have that knowledge unless he can prove that he is deficient in such knowledge. To support his contention that the offence did not amount to murder, the learned counsel for the appellant relied on Nga Po Saw v. King‑Emperor (A I R 1924 Rang. 33), Ala Singh and others v. Emperor (A I R 1935 Lah. 80) and Sengoda Goundan and others v. Emperor (1915 M W N 621 (1)). The first two of the cases relied upon have no relevancy because in each of them the offence was held to be one of culpable homicide not amounting to murder on the finding that the act could not be presumed to be one more dangerous than one which the accused knew to be likely to cause death. The facts of the Madras case have some resemblance to those of the present, because in that case death had resulted from two of the dacoits thrusting a cloth in the mouth of a resident of the house in which the dacoity was committed. The offenders had been sentenced to death but on appeal a Division Bench of the Madras High Court in a judgment running into less than a dozen lines, half of which were devoted to the facts of the case, held that the act did not attract the provisions of the section defining the offence of murder, because the intention was not to cause death. The question whether or not a person had the intention or knowledge which would make the offence committed by him amount to murder is, as indicated by me earlier, essentially one of fact and as no tribunal called upon to decide a question of fact is bound by the opinion of any other tribunal in another case, the decision in Sengoda Goundan and others v. Emperor, need not detain me. I might add that if the learned Judges wanted to lay down that in no case can the act of thrusting a cloth in the mouth of a person in order that he may not raise an alarm amount to murder if death ensues, I would, with all respect, refuse to accept that view, because I can conceive of cases in which death can be and may be intended to be caused in that manner. Having considered all the circumstances of the case from all aspects, I have arrived at the conclusion that the act of thrusting earth in the mouth of the unfortunate child was F imminently dangerous and the appellant having known that it would, in all probability, result in death, the offence regarding the death of the child was one of murder. I would, therefore, uphold the conviction of the appellant under section 302 of the P. P. C. This leaves only the question of sentence for the offence of murder to be dealt with. No doubt, section 302 of the P. P. C., gives an option to the Court to impose a sentence of transportation for life and not of death for an offence of murder, but, keeping in view the dastardly nature of the offence, I am of the opinion that the capital punishment is in capitally appropriate sentence in this case. Consequently, I would confirm the sentence of death and dismiss the appeal. YAQUB ALI, J.

I agree. A.H. Appeal dismissed.