' MIAN BURHANUDDIN KHAN, J.-Behadur Khan petitioner seeks leave to appeal against the judgment and order of Peshawar High Court dated 23-12-1981 passed in Criminal Appeals Nos. 24 and 459 and Criminal Revision No, 196 of 1980.
2. Accused/respondents Muhammad Anwar, Mir Zaman and Feroz Din were tried by the learned Additional Sessions Judge, Abbottabad at Haripur on the charges that they, in furtherance of their common intention, committed the murder of Muhammad Ayub deceased and also inflicted injuries to Bahadur Khan petitioner father of the deceased on 19-W-1979 at Chashgah' vela' i,e, 9/10 a. m. In the morning in the fields known as Dotal. The learned that Judge found Muhammad Anwar and Feroz Din accused/respondents guilty of the murder of Muhammad Ayub deceased and for causing simple injuries to Bahadur Khan the father of the deceased and convicted both of them under sections 302/34 and 334/34, P. P. C. Muhammad Anwar accused/respondent was awarded death sentence and a fine of Rs, 3,000 under section 302 and 6 months' R. I. And fine of Rs, 1,000 or in default 2 months' R. I. Under section 324, P. P. C. While Feroz Din was sentenced to life imprisonment and fine of Rs, 3,000 or in default, to 6 months' R. I. Under section 302/34, P. P. C. And 6 months' R. I. And a fine of Rs, 1,000 or in default, one month's R. I. Under section 324/34, P.P.C.
Sentences of imprisonment were ordered to run concurrently. Amount of fine, if recovered, was directed to be paid to heirs of the deceased. Mir Zaman was acquitted of both the charges vide judgment dated 5-6-1980.
3. Muhammad Anwar and Feroz Din appealed against their conviction and sentences, in the Peshawar High Court and Murder Reference was also placed before the learned Judges for the confirmation of death sentence awarded to Muhammad Anwar. The State also filed Criminal Appeal No, 459 of 1980 against the acquittal of Mir Zaman accused/respondent and Bahadur Khan petitioner also filed a revision petition against the acquittal of Mir Zaman. The learned Judges accepted the appeal of Feroz Din and acquitted him of all the charges. Muhammad Anwar accused/respondent was also acquitted of the charge under section 302, P. P. C. But his conviction under section 324, P. P. C. Was maintained. Murder Reference was accordingly, answered in negative and dismissed. However, the appeal filed by the State against the acquittal of Mir Zaman was accepted and he was convicted under section 326, P. P. C. For causing grievous hurt to Muhammad Ayub deceased and was sentenced to five years' R. I. And a fine of Rs, 3,000 or in default to undergo further R. I. For six months.
4. Present petition is against the acquittal of Muhammad Anwar from an offence under section 302, P. P. C. And against the acquittal of Feroz Din from both the offences under section 302/324, P. P. C.
And seeks enhancement of the sentence of Mir Zaman to that of capital punishment.
5. According to the prosecution, Muhammad Ayub deceased on the day of occurrence 19-10-1978 at about 9/10 a. m. Took his cattle to the fields for grazing to the place known as Dotal, while Bahadur Khan father of the deceased, was following him, when Muhammad Anwar, Mir Zaman and Feroz Din came there and Mir Zaman asked Muhammad Ayub deceased about the behaviour of his son of cutting jokes with his daughter. Upon this, it is alleged, that Feroz Din caught hold of the deceased while Mir Zaman took out a dagger from his trouser's fold and delivered two blows in the abdomen of the deceased who fell injured to the ground and later on died in the Hospital on 9-11- 1979. Bahadur Kban who was following the deceased, rushed to rescue him whereupon the accused/respondent Muhammad Anwar drew a dagger from his trouser's, fold and dealt a blow on his forehead. At the alarm raised by the petitioner Bahadur Kban, Abdul Maruf and Farid Khan were attracted to the spot.
6. Report was lodged by Bahadur Khan P. W. 9 at 12-30 p. m. On the same day at the police station lying at a distance of 8/9 miles. A case under section 307, read with section 34. P. P. C. Was registered and the injured was sent to the Hospital for examination.
7. Motive attributed for the crime is that Mst. Sabzun Nisa sister of accused/respondent Muhammad Anwar and Zaman was divorced by Riaz and she married the deceased without the blessings of the accused/respondent. On this account Muhammad Anwar and Mir Zaman were nursing a grudge against the deceased. Mst. Sabzun Nias was also examined at the trial as P. W. 10 who narrated the event of the divorce; and marriase with the deceased.
8. After the arrest of Muhammad Anwar accused, he led the police to the recovery of dagger from his house which was taken into custody vide Memo. Exh. P. W. 7/1. The prosecution rested its case, apart from the circumstantial evidence on the eye-witness account as provided by Bahadur Khan, P. W.
9.
9. Learned counsel for the petitioner contended that there is a direct charge against Mir Zaman for inflicting dagger blows to Muhammad Ayub deceased and the medical evidence also confirms this statement as Dr. Gul Muhammad Khan, P. W. 1 found a stab wound in the abdomen right side iliac region of the size 2 x 2 cm the skin was cut (abdominal wall). Peritonuim and intestines were found out, besides the other three incised injuries. As regards his own injuries Bahadur Khan charged Muhammad Anwar for the same and the same doctor observed that Bahadur Khan had an incised wound on the forehead left lateral side of 2 x 1/1-2 cm scalp deep. Therefore, the learned counsel contended that the learned High Court Judges have not properly appraised the evidence and conviction of Mir Zaman under section 302, P. P. C. Should have been maintained. He referred to the relevant portion in the judgment where the learned Judges have come to the conclusion that the death of Muhammad Ayub deceased was not the direct result of the injuries sustained by him in the abdominal region but they have not mentioned any portion of the Doctor's evidence to the effect that the injuries were not grievous or could not have resulted in the death of Muhammad Ayub deceased. On the contrary, the doctor found the peritonium and intestines cut which could lead to development of peritonitis which is a deadly symptom and in the ordinary course of nature results in death. The learned counsel contended that the statement of doctor would establish the nature of injury conclusively but the Court can also go into the question as to whether the injury would be sufficient, in the ordinary course of nature, to cause death, even if the doctor omits to state so; and that a reference to section 299, P. P. C. Would show that 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. Explanation 2 reads: "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."
' The learned Judges observed that the doctor has not used sterilized catherter but it does not find support from the statement of the doctor. All the doctor stated is that he had not used catheter but had used other sterilized instruments. This does not lead to the conclusion that the ultimate peritonitis which developed in the peritonium cavity and gangerene were the result of the carelessness on the part of the doctor. The learned counsel relied on Wazir Gul v. The State , wherein it was held.
"As regards the second point of the two knife injuries at least one was given on the vital part of the body causing perforation of intestines and leading to development of peritonitis. From the nature and the seat of the injury, the intention to kill could be clearly spelt out..."
10. We grant leave against Mir Zaman accused/respondent to considerl, the evidence in the light of above observations. Bailable warrant in the sum' rupees twenty thousand with two sureties in the like amount to the satisfaction of A. D. M., Haripur/Abbottabad. Leave against the acquittal of Muhammad Anwar and Feroz Din accused/respondents refused. 1975 SCM R 289