' ZAFAR PASHA CHAUDHARY, J.--- Appellants Abdul Hakeem and Abdul Hameed have come in appeal against judgment, dated 10-3-2004, passed by Mr. Zaheer-ud-Din Kakar, Sessions Judge, Khuzddar, whereby both have been convicted under section 302(b), P.P.C. And sentenced to suffer imprisonment for life, each. They have also been ordered to pay Rs,50,000 each as compensation to the legal heirs of deceased Gango. Both the appellants have also been convicted under section 392, P.P.C. And sentenced to undergo three years' R.I. Each with a fine of Rs,50,000 each, in default whereof, each has to undergo further three months' R.I. Benefit of section 382-B, Cr.P.C. Has been extended to the appellants. The sentences of imprisonment under both the counts have been ordered to run concurrently. The case property, i,e, motorcycle snatched by the appellants has been ordered to be returned to the legal heirs of deceased Gango after due verification. The dagger recovered from the appellants has been ordered to be confiscated.
2. The prosecution case in brief as spelt out from the F.I.R. Exh.P./1-A, which was registered on the application moved by the complainant Maloor, Dafedar Levies, is that on 18-12-2002 at about 5-00 p.m. He was going towards his house to have his meals. When he reached near Dati Kor he saw that two persons had held Gango and had been beating him and trying to snatch his motorcycle.
The complainant was requested to rescue him. The complainant got down from his motorcycle and went forward to rescue Gango. One accused out of the two whose name was disclosed as Abdul Hameed, tried to inflict a dagger blow on his person. In the meanwhile, Gul Feroz who was coming on his bicycle behind him (the complainant) was also called for help. The accused persons whose names were subsequently, revealed as Abdul Hameed and Abdul Hakeem inflicted several injuries on the person of Gango. They after snatching his motorcycle tried to run away. Maloor (the complainant) and Gul Muhammad chased them. The complainant with the help of his companions, who came to his rescue, successfully .Chased the appellants and then both were apprehended. They also succeeded in recovering dagger and motorcycle from their possession The accused were taken into custody and thereafter produced before Naib Tehsildar.
3. The investigation was taken up by. The Naib Tehsildar. The motorcycle and dagger were also secured and recovery memo. To this effect was prepared. Gango was provided medical aid by the Medical Officer Jahoo. The statement of injured Gango was recorded by Naib Tehsildar, which was certified by the Medical Officer, which is Exh.7-B. As the condition of injured Gango was serious, he was forwarded to Karachi for further treatment but unfortunately he succumbed to the injuries and expired on 22-12-2002. On completion of the investigation both the accused/appellants were challaned to Court.
4. The trial Court framed charge under section 17(4) of the Offences against Property (Enforcement of Hudood) Ordinance, 1979, to which the appellants pleaded not guilty. They were put on trial. On conclusion of the same the appellants vide judgment, dated 25-3-2003, were convicted under section 302(b), P.P.C. And each was sentenced to life imprisonment with a fine of Rs,50,000, each which was ordered to be paid as compensation to the legal heirs of the deceased, in default to further suffer three months' S.I. Each Both were convicted under section 392, P.P.C. And sentenced to 10 years' R.I. Each with a fine of Rs,30,000 each, in default to further undergo six, months S.I. Each.
5. The appellants being not satisfied with the conviction, they impugned the judgment, dated 25-3- 2003 before this Court vide Jail Criminal Appeal No,83/I of 2003. The appeal was heard on 29-10- 2003. Before advancing arguments on merit, the learned counsel for the appellants pointed out that although the conviction had been recorded under section 302(b), P.P.C. And sentence had been awarded thereunder but no charge was framed under section 302(b), P.P.C. Obviously offence under section 302(b), P.P.C. Is more grave than the offence of robbery or Harrabah.
Conviction under section 302(b), P.P.C. Without framing a distinct charge thereunder and examining the accused on that charge, the conviction recorded by the learned Sessions Judge suffered from material illegality, which is not curable by section 537, Cr.P.C. A therefore, the case was remanded to the trial Court with the following observations:-- "In the case the proof required under subsection (4) of section 17 of the Ordinance, was not available, therefore, sentence under section 392, P.P.C. As Tazir was imposed but the sentence under section 302(b), P.P.C. As awarded in the present case without framing a proper charge under that section is illegal. The legality or errors is not curable under section 537, Criminal Procedure Code. Due to this error and omission, a prejudice would have been caused to the accused, which amounts to failure of justice. Such defect in the charge has been held to be not curable by the Supreme Court in 1981 SCMR 961.
' The impugned judgment, therefore, cannot be maintained. The same is set aside. The case is remanded to the learned Sessions Judge, Khuzdar for framing the charge afresh as observed (supra) under two heads. There will be no retrial except the accused will be examined afresh in the light of the fresh charge and if they so desire, opportunity to lead evidence may be provided."
6. After examination of the accused on fresh charge under section 302(b), P.P.C. Read with section 392/34, P.P.C. Against the appellants. Both the accused/appellants pleaded not guilty and claimed trial. The learned trial Judge after framing the points for determination proceeded to record prosecution evidence. The prosecution in support of the charge that the appellants caused injuries to Gango deceased for commission of Harrabah due to which he subsequently, died and also that the accused snatched motorcycle from Gango deceased at about 5-30 p.m. On 18-12-2002, examined seven witnesses. They in nutshell deposed to the following effect.
' P.W.1 Maloor Dafedar is the complainant of this case. He reiterated the contents of his application on which formal F.I.R. Was registered. He as such narrated the prosecution case before the Court.
P.W.2 Jaffar is an eye-witness of the incident, According to him, he went forward to rescue Gango deceased. He along with the complainant and Gul Muhammad (P.W.3) apprehended the appellants after the chase and a dagger and the robbed motorcycle were recovered from their possession. P.W.3 Gul Muhammad made a statement on the similar lines as made by P.W.2, Jaffar.
As such he lends support and corroboration to the statement of earlier two prosecution witnesses.
P.W.4 Badal Khan also happened to be there and had seen the occurrence. He saw that the appellants were beating Gango and inflicted injuries on his person. He chased the appellants and succeeded in apprehending them. The dagger and the motorcycle were taken into possession P.W.5, Hussain stated that on the day of occurrence, i,e, 18-12-2002 he was present in his fields when Abdul Rasheed informed him that Abdul Hakeem and Abdul Hameed had given beating to Gango and thereafter forcibly snatched his motorcycle. Both the offenders had been arrested by the levies force. He reached the house of Gango deceased and found that Gango was lying in injured condition. He removed him to a hospital in Karachi. He was medically examined and provided medical aid. Unfortunately Gango could not survive and succumbed to the injuries on 22- 12-2002, i,e, three days after he was injured. P.W.6 is Dr. Muhammad Noor Baloch. He conducted the medical examination of injured Gango and noted the following injuries:--
(1) A fresh bleeding wound noted at right interphylengeal joint of right hand.
(2) Some scratches and bruises also noted at left medial side of pericardial region, which was tender on palpation.
(3) Left shoulder joint was dislocated the, affected hand not move upward.
(4) Multiple bruises noted at the interscapullar region and at the buttocks, contusion on head and neck.
(5) The movements of both legs' are sluggish.
' Mental status: Confused complaining severe headache.
' Neck rigidity: Positive. , ' Conclusion.
' Type of injuries: Grievous.
' Type of weapon used: Blunt one.
' Type of wound: Contusion/abrasion.
' Finding that the condition of the injured was serious he, referred him to the Civil Hospital, Karachi, He signed medical report Exh.P.6/A. This witness also produced and proved the death certificate of Gango Exh.P.6/B. He further stated that Naib Tehsildar, Jahoo recorded the statement of the deceased in his presence.
' The last witness is Noor Ahmad, Naib Tehsildar Jahoo, who carried out the investigation. He visited the place of occurrence and performed all the necessary formalities and above all recorded statement of injured Gango Exh.P.7/B. He submitted initially incomplete challan and thereafter complete challan in Court on receipt of the death certificate.
7. The appellants have moved the instant appeal after they were convicted by the learned Sessions Judge on remand of the case by this Court. As detailed above, fresh charge was framed in the light of the observations made by this Court vide judgment dated 29-10-2003. The grievance of the appellants as made by them in the previous appeal stands redressed.
8. The learned counsel appearing on behalf of the appellants, has although argued that the prosecution witnesses are discrepant and there are variations in their statements, which make the prosecution story as doubtful yet the learned counsel did not lay stress on this aspect of the case.
She came forward with the plea that even if the prosecution evidence is believed and the appellants caused injuries, the same had not been done with an intention of causing death of Gango deceased. The beating was given and injuries were caused in order to snatch the motorcycle. The offence may he very grave but in order to record conviction under section 302, P.P.C. There must be an intention to cause death. The necessary requirement of intention for conviction under section 302, P.P.C. Is lacking, therefore, the appellant's conviction under section 302(b), P.P.C. Is not maintainable.
9. The learned counsel for the State has controverted the arguments. He supports the conviction and prays for dismissal of the appeal.
10. We have gone through the evidence with the help of the learned counsel and have heard the arguments in detail.
11. As noted above, the prosecution evidence comprises of the (a) ocular account, (b) the evidence of recovery, (c) the medical evidence and (d) the statement of Gango which comes with in the definition of dying declaration.
12. The ocular account is furnished firstly by P.W.1 Maloor, Defedar, Levies. He is an independent witness and also an employee. He has no reason or any other motive to falsely depose against the appellants. His oral statement is supported by extremely credible circumstances. He not only saw the appellants inflicting injuries on the person of the deceased but he went forward to rescue him.
One of the accused tried to cause injuries on his person. He chased the appellants and along with the other witnesses succeeded in apprehending the Appellants after a short chase. The appellants were apprehended practically at the scene of occurrence. The dagger was recovered from their possession and the robbed motorcycle was also retrieved by him from the appellants. He submitted a formal complaint describing the incident as witnessed by him and forwarded the same to the Naib Tehsildar for entering upon investigation. His oral statement is amply supported by the factum of recovery of stolen property i,e, the motorcycle, apprehension of the offenders and also by the fact that the same was reduced into writing as a complaint on the basis of which Formal was registered.
' His statement is further supported by P.W.2 Jaffar, P.W.3 Gul Muhammad and P.W.4 Badal Khan.
Neither of these witnesses have any background of enmity or against either of the appellants. All the four witnesses made consistent statements and corroborated each other on all material points. The details of incident have been truly furnished by all these witnesses. The fact that Gango was overpowered by the appellants and that they inflicted injuries on his person and that they robbed his motorcycle and also that they were taken into custody there and then stands fully established. The evidence of these witnesses is confidence-inspiring.
13. The next set of witnesses comprises of P.W.5 Hussain and P.W.6 Dr. Muhammad Noor Balodh.
According to Hussain,, he on coming to know of the incident rushed to the house of Gango and carried him to the hospital. Dr. Muhammad Noor Baloch conducted medical examination of the injured Gango and observed the injuries on his person as detailed above. The infliction of injuries especially under Items No,4 and No,2 shows that these were caused on the vital parts of the body such as pericardial region and head or neck on 18-12-2002 while the injured Gango expired on 22- 12-2002, i,e, just three days after the occurrence. During all that period he appears to have remained under medical treatment. Dr. Muhammad Noor after providing him first aid referred him to Civil Hospital Karachi. This witness produced a death certificate issued by Murshed Hospital as Exh.P.6/B. The signatures of Dr. Abdul Khaliq who issued the certificate, was identified by this witness. In this case autopsy was not carried out, which has been explained by the learned State Counsel that in the remote areas of Balochistan where this occurrence took place, the facility regarding post-mortem examination is not available. It is true that ordinarily post-mortem examination is treated as an authentic and credible evidence regarding cause of death but if in areas like the one in the present case it would be unjust to let off all culprits merely due to lack of this facility available to the prosecution. We are not oblivious to the fact that benefit of any doubt or suspicion has to go to the accused persons, but if on the basis of evidence and data available with the Court, it can reliably be believed that the death occurred as a result of injuries received by the victim then it will be E unjust to the deceased and to the prosecution to acquit an offender for no fault on the part of the prosecution. We have very anxiously and carefully assessed the prosecution evidence and find that the deceased sustained injuries, he was taken to the doctor but the doctor finding his condition serious referred him to the hospital in Karachi. The injured unfortunately could not survive and died as a result of those injuries. A suggestion was put forward by the prosecution to the doctor whether the deceased would have died on account of heart failure or some other heart ailment, the doctor categorically denied the suggestion that "it is incorrect to suggest that Gango was a heart patient". The categorical denial by the doctor can be safely inferred to be that the deceased was not suffering from any heart ailment. In this regard the evidence of Hussain (P.W.5) is very helpful and relevant. According to him, when this witness reached the house he saw that condition of Gango was not stable. He became unconscious and doctor was summoned to examine him who informed that his condition was serious, therefore, he should be removed to the hospital. The doctor also informed that the necessary equipment such as X-ray machine and other like instruments were not available with him. This witness stated that Gango could not bear the injuries sustained by him and, therefore, succumbed to the injuries. A specific question was put to this witness as to whether Gango suffered from any heart disease. It was expressly denied and the suggestion that Gango had sustained heart attack through falling down the motorcycle, was also refuted. By taking into account the statement of the doctor the respective data of injuries and death and also the statements of eye-witnesses, it will not be unsafe to hold that Gango died on account of the injuries caused on his person by the appellants.
14. The learned counsel next contended that even if it is presumed that the injuries were caused by the appellants and he died on account of the injuries yet the fact remains that the appellants did not intend to cause his death but the intention might be of causing injuries. In absence of intention to cause death, conviction under section 302(b), P.P.C. Cannot be made. The attention of the learned counsel was drawn to the definition as contained in section 300, P.P.C.
"Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-i-Amad."
' To constitute an offence of Qatl-i-Amd it is not necessary that the injury should be caused with intention to cause death. If somebody inflicts injuries with intention to cause bodily injuries which in the ordinary course of nature is likely to cause death. Or with the knowledge that his act is so imminently dangerous that it must result in death, it will be murder.
15. In the present case the injuries were caused on the vital parts of the body such as head, neck and the pericardial region. If two persons keep on causing injuries on the vital parts of the body with such a force and severity then a prudent person must have a knowledge that these injuries can cause death. When the result of the injuries is assessed objectively then these injuries had in fact resulted in the death of the person. The argument advanced by the learned counsel in this behalf that there is no intention to cause death therefore, conviction under section 302(b), P.P.C. Is not sustainable, does not have much force. The intention or knowledge of the offence has to be gathered from the object for which the injuries were being caused. Admittedly the purpose or object of the appellants was to rob the motorcycle of the deceased and during course of robbery or Harrabah, as the case may be, the appellants caused such.a severe and grave injuries, which ultimately resulted in death of the victim.
16. After taking stock of the entire evidence and the facts, we do not have even an element of doubt in our minds that Gango deceased did not die of the injuries received by him at the hands of the appellants and instead his cause of death is something else. The appellants' conviction therefore, under section 302(b), P.P.C. As well as under section 392, P.P.C. Is unexceptionable. The same is, therefore, upheld and maintained. The appeal is accordingly dismissed. The conviction and sentences under both the counts are maintained. As already held by the learned trial Judge, the sentence of imprisonment under both the counts shall run concurrently. Benefit of section 382-B, Cr.P.C. Shall remain available to the appellants.