Appellant, Naseer Ahmad, aged 36 years, was put on trial before the learned Sessions Judge, Jhelum, on a charge under section 302, P. P. C. For causing the murder of Muhammad Yousaf, his neighbour, vide judg--ment, dated 11June, 1978, he has been convicted under section 304, Part I, P.
P. C. And sentenced to imprisonment for life and a fine of Rs. 2,000 (two thousand) or in default thereof to undergo a further term of two years R. I. The amount of fine if realized is to be paid to the heirs of the deceased as compensation. He has appealed.
2. Prosecution case, in brief, is that the deceased had repaired the water spout to his roof a day before. There was new cement plastering. On the day of occurrence, his young daughter Mst.
Nagina (not examined) was pouring water on the plaster for its proper setting. The deceased and Abdul Wahad (P. W. 9) were present in the house. The appellant, a next-door neighbour of the deceased, happened to pass that way. Some drops of water fell on him. Feeling that the dirty water had spoiled the clothes, he started abusing the girl. The deceased intervened saying that gown-up children should not be abused filthily. At this, the appellant drew out a knife and gave a blow on the left flank of the deceased. This felled the deceased to the ground and the appellant made good his escape.
3. Police Station City, Jhelum, is situate at a distance of about three furlongs from the place of occurrence. Amir Ahmad A. S. I. (P. W. 14) was on usual patrol. Before the matter could be reported to the Police, he reached the spot within 15 minutes of the occurrence, which had taken place at about 7 p m. And recorded the statement (Exh. P. F.) of the deceased, which later formed the basis of formal F. I. R., Exh. P. F/l. 7ecorded at the police station at about 7-30 p.m. Case was initiallyth registered under section 307, P. P. C. The deceased succumbed to the injury in the hospital on 28th April, 1976 and the offence thereafter was altered to one under section 302, P. P. C.
4. Amir Ahmad (P. W. 14) A. S. I., after recording the statement sent the same to the police station for registration of the case. And he himself entered upon the investigation. He prepared the injury statement, Exh. P. H. Of the deceased and sent him to the hospital for medical examination, He recorded the statements of Mst. Nagina. Abdul Wahad and Muhammad Sadiq P. Ws. Who claimed to have seen the occurrence. He inspected the spot and collected blood-stained earth and made it into sealed parcel vide Memo. Exh. P. G. The appellant was arrested by him on 19April, 1976. On 2April, 1976, the appellant led to the recovery of blood stained knife Exh. P. 2 from the ceiling of his residential house. The same was taken into possession vide Memo, Exh. P. H. On the death of the deceased which occurred, as already noticed on 28th April, 1976, I. O. Went to the hospital and prepared injury statement, Exh. P. K. And inquest report Exh. P. L. In respect of the deceased and despatched the dead body to the mortuary for post-mortem examination. He prepared the rough site plan, Exh. D. E, and got regular site plan. Exh. P. B. With its copy, Exh. P. B/1, prepared by Malik Maqbool Hussain, Draftsman (P. W. 5).
5. Dr. Arshad Khan (P. W. 7) the then Medical Officer, District Headquarter Hospital Jhelum, examined the deceased on 18th April, 1976, when he was alive. He noticed the following injury on his person:- "A stab wound 1" x --" on the front of left side of chest on the 10th inter-costal space lying obliquely with corresponding cuts on the clothes."
On laparotomy the wound was found penetrating into the peritonial cavity and there was haemoperitoneoum. The spleen was found cut. The injury, therefore, was declared grievous and dangerous to life.
6. On the death of the deceased, he conducted post-In ortem examina--tion on 29th April, 1976, at 6-45 a.m. He noticed the following three injuries on the body:-
(i) The wound mentioned in Exh. P. G. Extended up to 5" to explore the abdomen from the front of left chest obliquely and medially to joint Laparotomy incision.
(ii) Laparotomy incision left paramedial 8" long stitched and lying vertically to which joined injury No. 1, left side on its middle.
(i.e) A venesection 2--" long stitched on the front of left upper arm upper part lying transversely.
On opening the dead body, he found the thorax injured under injury No. 1. The lungs were congested and froth was oozing on section. On cutting the pulmonary artery big clot was found lodged. Other organs were healthy. Spleen was missing, as it had been removed curing operation.
7. The appellant at the trial, admitted the occurrence but pleaded self-defence. He examined one witness in his defence. His case was:- "The actual fact is that I was passing in front of the house of the de--ceased when drops of Latrine water fell on me. As Mst. Nagma was sprinkling water on the Parnala, I told her that she should be careful and whether she was blind, in wrath. Whereafter I went inside my house, Mst. Nagina raised help over it and made hue and cry. Her father Muhammad Yousaf deceased came in front of my house abusing me and challenged me to come out. When I came out he attacked me with a knife.
We struggled and in the struggle we fell down on the ground, the knife accidentally injuring the deceased. I was not holding the knife in my hand and did not take it away with me."
He disowned knife, Exh. P. 2.
8. Prosecution at the trial relied on the ocular evidence given by Abdul Wahid (P. W. 9), Muhammad Sadiq (P. W. 10); the recovery of knife, Exh. P. 2, the motive medical evidence and the statement, Exh.
P. F. Of the deceased used as dying declaration. Mst. Nagina P. W. Could not be examined, as she had gone abroad and her presence could not be secured without undue delay and expenses.th nd
9. The learned trial Judge relied on statement, Exh. P. F. Of the deceased as dying declaration. He did not doubt, to the least, the circum. Stances under which the same was recorded. He believed Abdul Wahid (P. W. 9), though with certain reservations. Muhammad Sadiq (P. W. 10) according to him, was an independent and straightforward witness. He, therefore, concluded: "I, therefore, find that his version taken together with Exh. P. F/I and also whatever grain of truth can be gathered in the testimony of Abdul Wahid, leads me to conclude that the accused was responsible for causing the injury to the deceased." He, however, dis--carded the recovery of knife Exh. 12, at the instance of the appellant. The plea of self-defence put up by the appellant was rejected as, according to the learned Judge, there was no possibility of the deceased having been hit in the manner suggested by the appellant in his statement under section 342, Cr. P. C. The learned Judge convicted the appellant under sec--tion 304, Part I, P. P. C. As in his opinion, "... The accused was not possessed of the intention and knowledge regarding killing to bring the offence committed by him within the ambit of murder. He was, however, res--ponsible for committing culpable homicide, because he had caused such bodily injury intentionally which was likely to cause death and not one which was sufficient in the ordinary course of nature to cause death."
10. I have heard the learned counsel for the appellant, learned State Counsel and gone through the evidence with their assistance.
11. Learned counsel for the appellant has raised two fold contentions in support of his appeal. In the first place, he argued that the prosecution case suffers from inherent in probabilities, in that the statement of Muhammad Sadiq (P. W. 9), in material particulars, is in conflict with the statement, Exh. P. F. Of the deceased, even if the same is used as dying declaration. No reliance can be placed on Abdul Ghaffar (P. W. 11) as he is not mentioned in the F. I. R. The recovery of knife (Exh. P. 2) has been discarded even by the learned trial Judge. If the testimony of both these witnesses is excluded being untrustworthy, the conviction cannot be sustained solely on the basis of flying declaration which, thus, remains uncorroborated. The case, therefore, set up by the appellant in his state--ment under section 342, Cr. P. C. Shall have to be accepted as a whole. The circumstances under which the appellant met with his death have fully been explained. It was an accidental death in which the deceased alone is to be blamed. No case, therefore, worth the name is made out against the appellant who deserves acquittal. In the second place, he argued that in view of the statement of the doctor, the death was not the direct result of the injury sustained by the deceased. It has been conceded by the doctor that the injury suffered by the deceased was not the cause of pulmo--nary embolism. The appellant, if at all, was responsible for a grievous injury and, therefore, his conviction under section 304, Part I, P. P. C. Is not called for.
12. Learned counsel for the State, on the other hand, argued that the prosecution has established the case against the appellant beyond reasonable doubt. In cases where a single accused is named and a single injury is attributed, question of false implication is a phenomenon of rare occurrence. Above all, the appellant himself having admitted his participation, the only question that remains to be seen is whether the plea taken up by him is reasonably plausible. In the instant case, he had been seen running away with a knife by Abdul Ghaffar (P. W. 11) who is an independent witness. In the circumstances, non mention of this witness in the F. I. R. Is not of any importance as the F 1. R. Is based on the statement of the deceased who might not have seen this witness as he is not the witness of the occurrence. The defence plea put up by the appellant is absurd on the face of it. In an occurrence in which the appellant did not receive even a scratch the ques--tion of the deceased having been bit by his own knife is not at all possible. He then argued that the doctor at trial has stated that the injury attri--buted to the appellant was fatal, therefore, no exception to his conviction under section 304, Part I, P. P. C. Can be taken.
The first contention raised by the learned counsel for the appellant merits rejection. There is no doubt that the last statement of the deceased can be used as a dying declaration. Learned trial Judge has taken notice of the aspect that Abdul Wahid (P. W. 9) though a relation of the deceased tried to help the appellant at the trial. In any case, even he has fully implicated the appellant as regards the infliction of the injury to the deceased is concerned. Besides, Muhammad Sadiq P. W.
Had seen the appellant running away with knife. In the words of the learned trial Judge. "There is not an iota of evidence on the file to suggest that he was in any manner inimically disposed against the accused or had any special reason to depose for the prosecution." Even if the statement of P. W. 9 is ignored, necessary corroboration can be had from the testimony of Muhammad Sadiq (P. W. 10). The statement of the deceased otherwise inspires confident. He has not tried to exaggerate the occurrence in any manner. There is hardly any dispute as regards the motive is concerned. The learned trial Judge has rejected the defence plea and I have no hesita-- tion in endorsing the same.
The second contention of the learned counsel however, has some merits. The prosecution has not brought anything on the file to show that the pulmonary embolism was in any way due to the injury sustained by the deceased. As admitted by the doctor, even "an apparently healthy man can have embolism". Robbins Pathologic Basis of Diseases defines embolism thus:- "Embolism has been defined as a detached intravascular Mass (Solid or gasses) that is carried by the blood to a site distant from its point of origin."
According to the author, `Embolic Occlusion of the large or small arteries of the pulmonary arterial tree is not only the most common form of embolism in man. It is also one of most lethal. Post- mortem studies of the general population of hospitals reveal that 6-8% have grossly recogniz-- able embolism within the pulmonary tree. In patients suffering from severe burns, trauma or fracture. These numbers rise to 25-30%. Fatal pulmonary is said to occur in 3-5% of hospitalized patients found in the general words of large hospitals rising to 5-10% in selected older groups who have suffered traume."
Therefore, it cannot be said with absolute certainty that the pulmonary embolism suffered by the deceased was due to the injury attributed to the appellant.
Section 299 of the Pakistan Penal Code, which defines culpable homicide reads thus:- "Whoever causes death by doing an act 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 he is likely by such act to cause death, commits the offence of culpable homicide."
The language of this section clearly indicates that the offence of culpable homicide can be committed only if death is caused by the doing of an act with the requisite intention or knowledge.
If death is not caused by such an act but something else intervenes between the doing of the act and death of the person concerned, it is obvious that the offender would not be guilty of the offence of culpable homicide, but be might be guilty of some other offence. There may, however, be cases where though, death is not the direct result of the doing of an act and something else intervenes, but that something is the direct result of the act of causing the injury in which case the person who has done that act would be guilty of the offence of culpable homicide, even though death may not have taken place if that thing had not intervened. For instance if as a result of an injury, peritonitis or tetanus sets in, and the injured man dies, the person who caused the injury would be guilty of the offence of culpable homicide, if the act of causing the injury was done with the requisite intention or knowledge and it would be no defence to say that death was not due to the act complained of, but was due to some other cause, because that cause was the direct result of the injury. There may, however, be other cases where death is not the direct result of an injury and something else may intervene, but that something is not the direct result of the injury. For instance, an injured person, as a result of wrong treatment in the hospital dies, death, in such case, would not be the direct result of the injury but of the wrong treatment and hence the provisions of section 299 of the Pakistan Penal Code will have n application.