FAKHRUDDIN G. EBRAHIM, J.--These are two appeals, one by the appellant Paul Jackson (Criminal Appeal No K-22 of 1974) which questions his conviction under section 326/34, P. P. C., for which he was sentenced to undergo R.1 for five years, and the other appeal is by the injured E. H. Joseph (Criminal Appeal No. K-21 of 1974) in which the grievance is against the acquittal of Paul Jackson of a charge under section 302, P. P. C.
2. The appellant Paul, along with his father Manassi and his two brothers, Peter and Ayub, were tried by learned Sessions Judge, Karachi, under sections 302 and 307 read with section 34, P. P. C., for causing the murder of their neighbour, Sardar Masih and for the attempted murder of Joseph, the brother of the deceased. The learned trial Judge convicted all the four accused on the first count and sentenced Paul to death and the other three to R. I. For life imprisonment, and on the second count acquitted Paul but convicted the other three accused to seven years' R. I and a fine of Rs.
5,000 and in default to undergo further R. I. For two years each. On appeal by the accused, and a reference for confirma--tion of death sentence, a Division Bench of the High Court of Sind, by judgment dated 27-11-1973 altered on the first count the conviction of Paul from one under section 302 to one under section 326 read with section 34, P. P. C. And sentenced him to five years' R. 1 and that of the other three to one under section 323 read with section 34, P. P. C. And sentenced them to imprisonment for the period already undergone by them. On the second count the three accused were acquitted.
3. Leave was granted to the appellant Joseph by this Court by order dated 30-1-1974 to consider the limited question whether in the circumstances of the case the High Court had rightly acquitted Paul for causing intentional injury which he knew was likely to cause death or at any rate which was sufficient in the ordinary course of nature to cause death falling under clauses secondly and thirdly of section 300, P. P. C.
4. Leave was granted to Paul by this Court vide order dated 6-5-1974 on the principles underlying section 439, subsection (6) of Criminal Procedure Code, the appellant Paul would be entitled to show cause, in the connected appeal, against his conviction under section 326 read with section 34, P. P. C.
5. The facts giving rise to the incident are sufficiently detailed in the leave order dated 31-7-1974 which may be conveniently reproduced here under :- "The incident took place on 8-12-1970 between 4 and 5 p.m. When Sardar Masih after returning from office and having finished his meals was taking tea when he heard that Paul was hurling abuses at him. Sardar Masih went outside his house and found Paul and his brother Ayub and Peter. All the three caught hold of Sardar Masih and took him to their house. Having bolted the main entrance from inside, they along with their father Mannasi, began to assault Sardar Masih. During the course of the assault, Paul respondent gave knife injury to the victim on the right upper back lateral to lumbar region. The other three respondents gave him fist blows and kicks. On an alarm by Sardar Masih, his brother Joseph came running and was able to rescue him from the respondents.
Joseph too received two knife injuries in his chest and abdomen. Salvia (p. W. 2), Semson (P. W. 3) and Pervez were also attracted to the spot and witnessed the incident. The last named though examined in the committing Court was not produced at the trial because he was alleged to have gone abroad. Aziz-ul Haq (P. W. 6) who has his house about 20 paces from the house of the respondents also reached the spot immediately after the occurrence. This witness saw Joseph in an injured condition bleeding. Sardar Masih had in the meantime left for Civil' Hospital on foot. A quarrel between the women folk of the two families on the same day had caused the above incident.
Sardar Masih was examined by Dr. Muhammad Sakhi Sarwar who found two injuries on his person, one of which was an incised wound 1' x 1/4" x cavity deep on the right upper back lateral to the lumbar region with corresponding cut marks on the bunyan. This was kept under observation. The other injury wars an abrasion on the root of the nose. The doctor telephoned to inform Risala Police Station. The telephone was received by A. S. 1. Muhammad Ashraf (P. W. 5) who after making a note in the station diary repaired to the Civil Hospital where he recorded the statement in Urdu of Sardar Masih after he was certified fit by doctor Mazhar Saeed to be in a fit condition to make the statement. Joseph also reached the Civil Hospital a little later and was examined by the Dr. Sarwar who found two incised wounds one on the lower chest latro-posterior aspect 1' x 1/4' x cavity deep, and the other on the lower abdomen front 1/8' x 1/8', skin deep.
Sardar Masih remained an indoor patient in the Civil Hospital and had to undergo surgical operation for the removal of his right kidney on 24-12-1970. He died on 25-12-1970 at 12.35 a.m.
Doctor Muhammad Umar Khan, the Police Surgeon who performed autopsy on the deceased found a stab wound on the right lumbar region 1' long, which was stitched and extended by operation. Another incised wound 1" below wound No. 1, 1/3' x 1/4' x cavity deep which, according to the doctor appeared fresh and "probably was for derange tube (operation). According to the operation note, the right kidney had been removed on 24-12-1970, for haematuria, because the stab had penetrated the kidney and had gone into the peritoneum". The Police Surgeon also found multiple adhesions on the right side of the peritonial cavity. In the opinion of the Doctor, the incised wound on the right lumbar region was sufficient to cause death in the ordinary course of nature. He also repudiated the suggestion that the death was caused by want of due care or diligence in performing the operation.
The respondents raised a plea of false implication by the P. Ws. Who were closely related to the deceased and were residents with him, Mannasi respondent No. 1 further stated that at the time of the alleged incident, he was lying ill in his house, and did not know anything about the quarrel, the other three respondents pleaded alibi.
The learned trial Judge relied upon the statements of Sardar Masih (Exh. 6) which after his death was treated as dying declaration and the ocular evidence of the injured Joseph (P. W. 1) and that of Salvia (P. W. 2) and Samson (P. W. 3) and the confirmatory evidence of Azizul Haq (P. W. 6). The last named was treated as absolutely independent and impressed the Iearned trial Judge. The learned trial Judge also relied upon the evidence of Pervez who was examined only before the committing Magistrate but whose statement was treated as evidence in the case under section-, 33 of the Evidence Act, 1872, because he was reported to have gone to United States and, therefore, his evidence was not obtainable without an amount of delay or expense which under the circumstances of the case was unreasonable. Accordingly, the learned trial Judge convicted and sentenced all the four respondents as aforesaid."
6. Mr. Muhammad Hayat Junejo, the learned counsel for the appellant contested the conviction of Paul Jackson on the ground that the prosecution had suppressed the real facts inasmuch as it would appear from the statement of P. W. Joseph that the police. Had recorded his statement at sunset time in his house before he left for the hospital and in its place the statement of the deceased Sardar Masih, recorded by the police at the hospital late in the evening became the F. I: R., from which the conclusion sought to be drawn was that a favourable F. I. R. Had been suppressed. The alleged substitution of F.
1. R. Was however, never put to the Investigating Officer, Tajamul Hussain, P. W. 10 who had deposed that Joseph's statement was recorded in hospital on the fourth day of the incident Witness Azizui Haque, who has been found by the High Court to be an independent witness and was present at the vardat, deposed that when the police arrived, Joseph had already left for hospital. The contention, therefore, is premised on an assumption which is at best a misapprehension in the mind of Joseph that he was so examined by the police, some three years after the event.
7. The learned counsel next questioned the dying declaration of Sardar Masih on the ground that it is at variance with the ocular evidence of P. Ws. Azizul Haque and Joseph, for whereas according to the dying declaration the deceased was rescued by P. W. Joseph, according to the evidence of witnesses, he was rescued by Azizul Haque and further according to the dying declaration, P. W.
Joseph was caused knife injury by Mannasi, while according to P. Ws. Azizul Haque and Joseph, knife injuries of Joseph were caused by Ayub and Peter. This contention was also pressed into service before the High Court and was rightly rejected in these words: "The contradiction between the dying declaration and the ocular evidence in regard to the person who actually rescued the deceased is in our opinion, only ostensible but not real. The evidence in the case clearly shows that whereas the deceased was stabbed inside the house of the appellants and was kept there until he was rescued, P. W. Joseph was stabbed outside the house of the appellants. In such circumstances, it could not have been possible for the deceased to have seen who caused the knife injuries to Joseph, specially as he himself had previously sustained a serious injury, which subsequently proved fatal. The averment in the dying declaration as to the person who caused the injuries to Joseph thus must have been based on information which the deceased received from Joseph or some other person. It is very likely that either the deceased was given wrong information as to the assailants of Joseph or alternatively, because of the state in which he then was on account of the beating and the grievous injury sustained by him, he did not get the names of Joseph's assailants correctly, whatever may have been the cause of this contradiction, we do not consider it to be of material significance. The contradiction between the dying declaration and the testimony of the eye-witnesses as to the person who actually entered the house and rescued the deceased appears to us also to be due to the confusion and the anxious state in which the deceased was when he reached the hospital. The knife injury on his person, as appears from the evidence of Dr. Sakhi Sarwar, was deep to the cavity in the back and must have bled profusely. Due to the injuryand the consequent loss of blood, the deceased appears to have had only one object and motive that is to at once rush to the hospital and seek medical assistance.
In these circumstances, the two contradictions between the testimony of the eye-witnesses the dying declaration cannot be considered to be of such a nature as to indicate that the deceased was deliberately making a false statement. In fact, there was no reason for him to make such a false statement."
8. Lastly the learned counsel referred to the discrepencies in the evidence as to the recovery of knife and the absence of any blood marks in the room where the deceased Sardar Masih was knifed. The High Court has not relied upon these pieces of evidence for the knife was not blood- stained and the floor of the room, where the deceased was knifed, had been freshly washed. As pointed out by the High Court, the dying declaration coupled with the ocular testimony of injured Joseph, P. Ws. Silvia and Samson, corroborative evidence of Azizul Haque and the medical evidence clearly established the fact that all the three accused had attacked the deceased and he was caused injuries including, a serious knife injury in the course of the attack.
9. The learned counsel has not succeeded in showing to us that in the appraisal of evidence the two Courts, which have arrived at broad concurrent findings of fact against Paul have acted contrary to well-established principles laid down by this Court in the administration of criminal justice, more particularly, in the matter of appraisal of evidence.
10. The Criminal Appeal No. K-22/74 filed by Paul Jackson is, there--fore, without any merit.
11. We now proceed to examine the question whether Paul Jackson has been rightly acquitted for an offence under section 302, P. P. C. For causing knife injury to Sardar Masih which resulted in his death, which is the controversy in Criminal Appeal by Joseph, the brother of the deceased, viz. Criminal Appeal No. K-21/ 74.
12. Before coming to the parties' contentions we may with advantage reproduce the reasons which prevailed with the High Court in converting the conviction of Paul under section 302, P. P. C. By the trial Court to one under section 326 read with section 34, P. P. C. (reference to section 34 appears to be inadvertent in view of the finding that knifing of the deceased Sardar Masih was an individual act of Paul). The High Court found that: "We are also not satisfied on the evidence in the case that appellant Paul had either the intention of killing the deceased or had even the knowledge that his act in stabbing the deceased would result in the latter 's death, only a single blow with a knife was given to the deceased and that too on the back. If the intention had been to kill the deceased, appellant Paul would certainly have caused the deceased more injuries and on parts of the body which he considered more vital. There was ample opportunity and the facility available to him to do so. The fact that appellant Paul refrained from causing more than one injury to the deceased would seem to suggest an absence of intention to cause death. Furthermore, the back is ordinarily not considered to be a very vital part on which a blow or even a stab would result in death. It is, therefore, unlikely that appellant Paul had even the knowledge, that the injury which he was causing was likely to result in death.
This point may also be considered from another angle. According to the medical evidence, the injured remained as an indoor patient in the hospital for fourteen days and died after an operation was performed. Unfortunately, the Surgeon who performed the operation or the Doctor who attended the deceased at the hospital were not examined. It is, therefore, not quite clear what was the condition of the patient during the period of his stay inthe hospital, why the operation eras considered necessary and what was found in the operation. Instances of medical negligence or the carelessness of a surgeon during an operation are not so rare as to be completely excluded from the factors which may have been responsible for or contributed to the death of the deceased.
The evidence of the Police Surgeon, Dr. Muhammad Umar Khan shows that the right kidney of the deceased had been removed during the operation. The Police Surgeon. Had no personal knowledge why the kidney was removed and' only on the basis of the operation notes he stated that it was removed because the stab wound had penetrated the kidney, This evidence, not being based on the personal observa--tion or knowledge of the Police Surgeon, was not admissible in the absence of the testimony of the Surgeon who performed the operation. In the case reported as Muhammad Abu Taha v. State PLD 1966 Dacca 491 a student sustained a penetrating incised wound -- x -- x cavity on the left sub-clavian region in front of the chest. The injured student was taken to the hospital, which was about 11,000 cubits from the place where he sustained the injury.
As the condition of the patient was grave, he was removed in a plane to the Medical College Hospital, Dacca, where blood transfusion was administered to the patient and other steps were taken to save his life. Despite these measures lie died on the fourth day of his sustaining the injury.
Although, evidence was given by as many as three doctors in the case, of whom the doctor who first examined the patient, testified that the patient would have died within a few minutes if no medical help was given there and then and that the injury was sufficient in the ordinary course of nature to cause death, it was held that since death of the deceased occurred more than four days after he sustained the injury, and that although plasma was administered to the patient and also he was operated upon, in the absence of the testimony of the surgeon and a post--mortem examination, it could not be said that tile death of the student was due to the injury sustained by him or was on account of some other reason, including the negligence of the doctors in administering plasma or performing the operation. The conviction of the accused was therefore reduced from one under section 302 to one under section 326, P. P. C. In the instant case also, neither the Surgeon who operated upon the deceased nor the doctor who attended on him before the operation was examined, and although a post-mortem was held and the doctor who conducted the post--mortem was examined, since the kidney, which is alleged to have been cut, was removed in the operation it was not possible for the doctor performing the inquest to say of his own knowledge whether in fact it had been cut and if so whether the cut was the result of the stab injury sustained by the deceased. We are accordingly of the opinion that the act of appellant Paul in stabbing the deceased --amounts to grievous hurt only and he is liable for an offence lender section 326 read with section 34, P. P. C. Only."
13. Mr. Akhtar Mahmud, learned counsel for the appellant Joseph, took exception to the observation of the High Court that the medical attention or more particularly the lack of it may have caused the demise of Sardar Masih. Learned counsel pointed out that the deceased, according to the report Exh. 1/B of Dr. Shamim Baig who had performed the operation on the deceased on 24-12-1970, died on 25-12-1970 due to uremia caused by a stab in right kidney, which report was produced by Dr. Sarwar P. W. 9 and that Dr. Muhammad Umar Khan P. W. 5 who had performed the post-mortem examination and given the opinion that the cause of death was airenia and anemia caused by complication of stab wound on right Kidney and in his cross-examination had denied the suggestion that there was any possibility of the deceased being wrongly operated upon and thereby causing his death. There is merit to the submissions made by Mr. Akhtar Mahmood. The evidence of the medical witnesses referred to by the learned counsel clearly excludes the possibility of any negligence the matter of medical treatment of the deceased. In this view of the matter the observation of the learned Judges in the High Court that vases of carelessness and negligence are not rare in hospitals was not justified Even otherwise such observation cannot alter the conviction of Pain from section 302 to section 326, P. P. C., for if an injury to a person sufficient to cause death, in the ordinary course, it would be irrelevant that the intervention of medical attention or inattention accelerated or contributed to his demise. The law is contained in Explanation 2 to section 299, P. P.C reads as follows :- "Explanation 2.-Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented."
In Murad v. The State (PLD 1957 Lah, 332), death of the deceased according to the opinion of the doctor was due to shock and haemorrhage which resulted from the injuries inflicted as well as by the removal of the spleen in ail operation per--formed on the deceased after the incident and the argument that was repelled Was that if the operation was not performed death may not have occurred at all for the operation in itself was partly the cause of death and, therefore it cannot be said that the accused had caused the death of the deceased. There was no evidence that the operation was performed negligently or was unnecessary. The Division Bench consisting of B. Z.
Kaikaus and Muhammad Yakub Ali, J) (as they were then) relying on Explanation II to section 299, P.
P. C. Accepted the contention on behalf of the State that if a person who intends to cause death brings into existence certain circumstances which in the normal course of events have resulted that person has caused death. The argument that found favour with the Court was that an accused cannot take advantage of the fact that an operation which became necessary had actually contributed towards death and that if a person with the intention of causing death inflicts a dangerous injury and in the opinion of the competent experts an operation is the proper course to adopt for saving the person injured from death then the offender will become responsible also for the effect of an operation performed with due care and the mete fact that the operation contributes to death does not make death any the less the effect of the act of the offender.
14. In the present case the injury on the person of the deceased, described in the medical evidence as :- "Incised wound right upper back lateral to lumbar region 1' x -- X suspected cavity deep with corresponding cut marks on banyan and bleeding present, clothes and pants badly smeared with blood.--- was according to the doctor caused by a sharp-edged weapon and the stab had penetrated the kidney and had gone to the peritoneum and was Sufi dent to cause, it the ordinary course, the death of Sardar Masih. This evidence would clearly exclude an offence under section 325, P. P. C. For it must follow that Paul had at least the knowledge or will be presumed to have knowledge that the injury caused by him would result in death.
15. The next question to be considered is whether in the above circumstances, the offence made out is under section 302 or section 304, Section 302 will apply only if it is beyond any doubt established that Paul struck the blow with intent to kill Sardar Masih. If in the circumstances it is more proper to impute to Paul knowledge rather than intention, the offence would fall under section 304, part II than under section 302 cc section 304, Part I, P. P. C.
16. In Ahmad and 3 others v. The State (PLD 1971 SC 720), the deceased suffered as many as injuries on different parts of his body caused by blunt weapons and the injury which proved fatal was a contusion 4" x -- " on the left side of chest above and outer to the nipple, which fractured fourth, fifth and sixth ribs of the deceased and led to the contusion of the lung and heart underneath. The appeal was partly accepted by this Court and the appellant's conviction under section 304, Part 1, P. P. C. Was converted to section 325/34, P. P. C.
This Court drew distinction between offences falling under section 302, P. P. C. And under Parts I & II of section 304, P. P. C. As follows :- "If the intention of the accused was to cause such bodily injury to the deceased as was likely to cause his death, or which was sufficient in the ordinary course of nature to cause death, the case obviously was one of murder falling under section 302, P. P. C. Being covered by the definition of murder as contained in section 300, secondly and thirdly of P. P. C., and the conviction could only have been made under section 302, P. P. C., and not under section 304, which is attracted if the offence is one of culpable homicide not amounting to murder. A case is covered by Part I of section 304, P. P. C. If the offence which is otherwise murder is reduced to culpable homicide not amounting to murder by reason of being covered by any of the exceptions to section 300, P. P. C., Part II of section 304, p. p, C. Applies if the fatal injury inflicted on the deceased is caused to him without any intention on the part of the accused to cause death, or such bodily injury as is likely to cause death, bat about which the accused can be burdened with the knowledge that it is likely to cause -his death. According to the learned Single Judge of the High Court, the accused party was in settled possession of the land over which the fight has occurred, and while defending their 'possession of the same, the accused had, by causing the death of the deceased, exceeded their right of self-defence. On that consideration, their offence, which was one of murder for causing the death of Sohna, stands reduced to culpable -homicide not amounting to murder by reason of Exception 11 to section 300, P. P. C., and falls under section 304, Part I, P. P. C."
17. The above view was approved by this Court in a recent Judgment in Criminal Appeal No. 135 of 1976. In this case this Court also observed that no hard and fast rules can be laid down as to the inference drawn as to the intention or knowledge of the assailant. It was further observed that :- "It is difficult to lay down a general formula for correct determination of this delicate issue. However, if there is application of mind in depth, the following amongst other many factors might also be taken note of; the background of enmity or otherwise-motive immediate and later or absence thereof any indication or absence of positive intention or any element to show its negation; the scope of assaults --wide or restricted involving precision or disorder and confusion; force used; seat of injury/s; weapon used; number of blows; position strength/body wise and otherwise of the victim; results produced and other relevant elements of conduct immediately prior, during and after the assault. In a given case the possibility of one or other or combination of some of these factors gaining extra importance cannot be excluded."
In Pehlwan v. The Crown (1969 P Cr. L J 1247), this Court observed that if a doubt as to the degree of knowledge that can be ascribed to the assailant does reasonably arise the benefit of it should be given to him and what is to be seen is the intention or knowledge accompanying the act.
18. In the present case the cumulative effect of the circumstances detailed below give rise to a reasonable doubt that the assailant Paul did not intend to kill the deceased :-
(i) That the co-assailants were content to give fist blows to the deceased.
(ii) There was no evidence of premeditation.
(iii) That a single knife blow was struck on a part of the body popularly not regarded as vulnerable such as head, heart, chest or abdomen.
(iv) There must have been struggle, for the deceased must have attempted to free himself. In that mellee one may reasonably assume that the deceased was knifed by Paul near about his left hip, which according to the medical evidence, punctured his kidney.
(v) There was commotion, there were people at the door wanting try break it open, but the door was opened from inside and the deceased was let out.
19. The case of the appellant Paul is, therefore, covered by Part II of section 304, P. P. C. For which the maximum penalty provided by law is 10 years. The appellant Paul has served out his five years' sentence. He was prior to that in custody for three years. In the circumstances while converting his conviction under section 326, P. P. C. To one under Part II of section 304, we will maintain the sentence of five years' R. I., the sentence he has already served out.
20. The result is that Criminal Appeal No. K-21 of 1974 is partly allowed and Criminal Appeal No. K-22 of 1974 is dismissed.