Muhammad Afzal Zullah, J.--Bakhu aged 35 years, has been convicted under section 302, P. P. C. for the murder of Mst. Fateh Bibi in the area of Mansoor Sial Police Station Atharan Hazari, District Jhang and sentenced to death by the learned Additional Sessions Judge, Lyallpur at Jhang, vide his judgment dated 28th May 1969. The convict has appealed and the reference is also before us for the confirmation of the sentence of death. Both the matters are being disposed of by this judgment.
2. The prosecution case as disclosed in the F. I. R. which was lodged by Elahi Bakhsh P. W. who claims to have identified the culprit soon after the occurrence, is as follows :-- Bakhu appellant had asked for the hand of Mst. Fateh Bibi the deceased but Raja her father did not agree. About a month before the occurrence which took place on the morning of 5th June 1968 Bakhu appellant was seen near the cot of the deceased in her house when Raja woke up and gave a sola blow to the appellant who ran away. On account of this incident Raja betrothed his daughter to Rab Nawaz son of Elahi Bakhsh the first informant who at that time was a lad of 15 or 16 years of age. This match did not materialise. Therefore, the deceased was married to one Khadim Hussain of Shorekot about 15 or 16 days before the occurrence. Bakhu thus was a jilted lover and was looking for an opportunity to fulfil his desire.
Four or five days before the occurrence the deceased had come back to her parents house for satwam ceremony. On the day of occurrence in the morning the deceased along with A1st.
Maryam P. W. had gone out near a tibbi to answer the call of nature. Bakhu appellant who had concealed himself behind the tibbi came there armed with a kulhari and caused injuries on the neck of the deceased and thereafter immediately ran away. The occurrence was also witnessed by Ramzan P. W. Mst. Maryam P. W. raised alarm and came running to the village at the shop of Elahi Bakhsh P. W. and informed him of the occurrence. He rushed to the spot and found Afst. Fateh Bibi in injured and unconscious condition. The accused at that time was running away at about 3/4 killas towards the batma of a lake. He was then carrying a kulhari. Elahi Bakhsh came to the Police Station Atharan Hazari which is at a distance of six miles from the spot and lodged the F. I. R. (Exh. P.
A.) at 7 a.m.
Abdul Hakim S. I. after recording the F. I. R. reached the spot and removed the injured to the hospital. He also completed the preliminaries of the investigation. He deputed Muhammad Anwar P. W. the M. H. C. to search for the accused. The latter found him on the banna of the lake and arrested him. At that time the appellant was carrying a hatchet. Muhammad Anwar then took the appellant to the spot where the S. I. took into possession the hatchet (Exh. P. 1) from the appellant vide memo. (Exh. P. B). This hatchet was on chemical examination found to have been stained with human blood.
3. Dr. Safia Chaudhry examined Mst. Fateh Bibi who was in injured condition on 5th June 1968 and found the follow ing injuries on her person :--
(1) Incised wound 4" x 4" x i" x 1" in the centre on the interior surface of neck, 1" above the sternum.
The depth of the wound is 1" in the centre, But the margins on the both sides are tapering and superficial. The trachea is cut through and through and air coming out. The respiration is quick and snoring.
(2) Incised wound on the back of neck in the nape of neck, 2"x|" into bone deep. Transverse in direction. Wound is bleeding freely and muscles of the back of neck were cut. The body of 6th cervical vertebra is cut.
Injury No. 1 was dangerous to life and injury No. 2 was noted as grievous. Both the injuries were caused by sharp edged weapon. The duration of the injuries was about six hours.
Mst. Fateh Bibi died after about ten days in the hospital. Dr. Tajammal Hussain (P. W. 1) performed the autopsy on 16th June 1968 at 7 a.m. and observed as follows :--
(1) A stitched healing wound with clearly cut margins 2* long on the back of neck lower part transverse in direction. On dissection muscles underneath were found cut and body of the 6th vertebra cut.
(2) A healing wound cut margins 4" long. This wound was not stitched in the centre measuring 1J" in length Y in width. Muscles underneath and trachea were cut through and through. The cut of trachea measured 1' x J" transverse in directions. An incised wound lj"x J'x 1'on front of neck with no signs of repair process, J" above the sternum. Trachea underneath was cut through and muscles separated to side. This was transverse in direction.
On internal dissection brain and its membranes were found slightly congested. Multiple small clots of blood were found in trachea and its branches. A big clot Y was present near bifurcation trachea.
Right and left lungs were highly congested and on suction dark fluid blood came out. Heart was healthy with right side full of blood and left side empty. Stomach was healthy. Injuries Nos. 1 and 2 were caused by sharp-edged weapon in about 10/11 days. Injury No. 1 was grievous while injury No. 2 dangerous to life. Injury No. 3 in the opinion the doctor was the result of an operation to provide easy type of respiration to the deceased." Death in his opinion had occurred due toesphuxia due to injury No. 2 which in the ordinary course of nature was sufficient to cause death.
None of the doctors was called at the trial. Their statements before tbe committing Magistrate were, however, duly transferred and read as evidence. It is pertinent to note that no one from the doctors was cross-examined by the defence. When the appeal came up for hearing on 29th May 1970 Mr. Abdul Aziz Bajwa requested that lady Dr. Safia Chaudhry and some other witnesses (not Dr. Tajammal Hussain) be summoned to be examined in this Court. By the order dated 29th May 1970 the request in so far as Dr. Safia Chaudhry was concerned was granted. We examined the lady doctor on 29th June 1970. The two important circumstances which have come out in her statement made in this Court are : that Mst. Fateh Bibi remained conscious in the hospital : She could move her lips in an effort to speak but could not in fact speak because of the injuries. The doctor tried to enquire from her about the occurrence but she could not get any information. The other circumstance is that according to the recollection of the doctor she had not seen the surgical wound i. e. injury No. 3 noticed by Dr. Tajammal Hussain on the deceas ed but she admitted that the Medical Superintendent had attend ed to the deceased and had done the stitching. She agreed with the suggestion that the death had occurred due to defect in respiration.
4. At the trial the ocular account of the occurrence was given by Mst. Maryam (P. W. 13), Ramzan (P.
W. 14) and Elahi Bakhsh (P. W. 17). The arrest of and the recovery of the hatchet (Exh. P. 1) from the appellant are supported by Muhammad Anwar H. C. (P. W. 7) Allah Bakhsh (P. W. 11) Khuda Bakhsh (P. W. 12) and Abdul Hakim S. I. (P. W. 18). The motive has been deposed to by Raja (P. W. 10) Khan Muhammad (P.
W. 15) and Ghulam Rasul (P. W. 16). Apart from the facts about the motive noted in paragraph No. 2 above at the trial Raja P. W. stated that Mst. Chooran who according to the F. I. R. is the mother of the deceased was married to one Allah Ditta. When he died she married Raja P. W. Mst. Sardaran alias Mst. Saddan a daughter of Mst. Chooran from her previous husband was brought up by Raja P. W. Bakhu appellant wanted the hand of Mst. Sardaran but Raja did not agree and betrothed her to Ghulam Rasul P. W. On this the appellant accompanied by others attacked Ghulam Rasul and some others. He was prosecuted, convicted and sentenced to six months' R.I. After he had undergone this sentence Bakhu appellant started making advances towards Mst. Fateh Bibi deceased and it was in this background that on one night he was found near her cot when Raja woke up and gave a sota blow to him. According to Raja the appellant had come with the purpose of taking away Mst. Fateh Bibi deceased. He then married her to Khadim Hussain. Five or six days after her marriage Raja brought her daughter to his house. At that time she told him that Bakhu appellant had asked her to elope with him otherwise she would be put to death. Raja further stated that previously the appellant used to demand hand of the deceased from him.
All the P. Ws. supported the prosecution case. The appellant when examined admitted that Ramzan P. W. is the brother's son of his mother and Elahi Bakhsh P. W. is the son of his maternal aunt. He admitted that he had asked for the hand of Mst. Sardaran but failed in achieving this object. He also admitted that he again approached Raja for the hand of Mst. Fateh Bibi deceased, but the latter declined. He however denied the occurrence and also did not admit the recovery of the hatchet from him. The counter version advanced by him was as follows : "Mst. Sardaran was betrothed to me. Her hand was refused in marriage to me. There was then a quarrel. After wards there was a compromise and Raja P. W. in this compro mise agreed to give the hand of Mst. Fateh in marriage to me. Mst. Fateh was also agreeable to her marriage with me. Elahi Bakhsh the maternal uncle of Mst. Fateh was not agreeable to this marriage as he wanted to marry his son with Mst. Fateh. Mst. Fateh on her part disliked her marriage with the son of Elahi Bakhsh.
Mst. Fateh deceased wanted to elope with me. On our previous attempt we had been apprehended and we were given shoe beating by Raja P. W. and Elahi Bakhsh P. W. Mst. Fateh deceased was married to Khadim Hussain of Shorkot against her will. She then incited me to take her away. On the night immediately preceding the occurrence we had left the Basti when Raja P.
W., Elahi Bakhsh P. W. and Khadim Hussain got wind of this and overtook us. Mst. Fateh deceased was then injured by them while I had succeeded in escaping. I then proceeded to the police station and explained the whole situation. Muhammad Anwar, Head Constable apprehended me and produced before the S. I. Abdul Hakim."
No evidence in defence was produced.
The learned trial Judge believed the entire prosecution evid ence and convicted and sentenced the appellant as noted above.
5. The claim of Elahi Bakhsh P. W. that when he reached the spot he identified the appellant at a distance of J killas because as he put it "he was frequently turning round" appears to be based on some exaggerated impression. The prosecution case is that after the occurrence Mst. Maryam P. W. went to the shop of Elahi Bakhsh in the basti which according to her statement is at a distance of more than two killas, she informed him about the occurrence and then he accompanied her to the spot. This was sufficient time for the culprit to have travelled beyond the range of identification by Elahi Bakhsh P. W. Moreover it was morning time and it is in evidence that the area around the place of occurrence is banjar land in which there are small mounds and bushes. In these circumstances it is doubtful if the culprit would be frequently turning round and if he did so once or twice it is not possible to hold that Elahi Bakhsh could definitely identify him. One fact however is established that soon after the occur rence Mst. Maryam named the appellant as the culprit and at that very time a person armed with a hatchet was seen at some distance from the spot and further that Elahi Bakhsh did not lose any time in lodging the F. I. R. wherein he specifically named the appellant as the culprit and mentioned that he had been told by Mst. Maryam that the appellant had caused injuries to the deceased. This is a confirmatory circumstances for the statement made by Mst. Maryam P. W.
6. About Ramzan P. W. an eye-witness we have noticed that there arc important, inconsistencies between his statement and those of Mst. Maryam and Elahi Bakhsh P. Ws. Mst. Maryam did not mention in her statement the name of Ramzan as one of the eye-witnesses. After giving the narrative of the occurrence in examination-in-chief she stated "I raised an alarm and ran away towards the shop of Elahi Bakhsh. I told Elahi Bakhsh the whole of the event. On the way to the shop of Elahi Bakhsh, Ramzan P. W. also met me I informed Elahi Bakhsh that Bakhu accused had murdered Mst. Fateh Bibi". In cross-examination she stated that she had no talk with Kamzan. It does not appear from her statement that in so far as her knowledge goes, Ramzan had seen the occurrence. What Elahi Bakhsh talked about Ramzan is in an entirely different context. According to him when he was informed by Mst. Maryam about the occurrence he rushed to the spot. At that time he described the position of Ramzan thus "Ramzan P. W. was ahead of me. We reached the place of occurrence. Bakhu accused was seen by me running towards north". From this it appears that Ramzan did not see the occur rence beyond what Elahi Bakhsh himself had seen i. e. when both of them reached the spot the appellant was seen by them running at a distance of killas. The inconsistency between the P. Ws. does not end here. Ramzan himself gave a different version about his presence at the spot. According to him (examination- in-chief) he saw the accused giving hatchet blows to the deceased. In cross-examination he further shated that after the occurrence he proceeded to the spot. Mst. Maryam was at a short distance front him when she raised the alarm and that he directed her to go to basti. This version is contrary to what Mst. Maryam and Elahi Bakhsh P. Ws., have stated. It is correct that according to the appellant's own admission Ramzan and Elahi Bhkhsh P. Ws. are very closely related to him and it is not unlikely that Ramzan as he (Ramzan) claimed may have gone out in the morning to ease himself and may also have seen the occurrence or a part of it. But due to the above inconsistencies between the statements of these three important eye-witnesses it is not possible to give a positive finding that Ramzan P. W. in fact saw the occurrence. It is therefore safe to keep his statement out of consideration.
7. With regard to the statement of Mst. Maryam P. W. it needs to be stated at the outset that admittedly she used to reside in the house of Raja P. W. during the days of occurrence. It is not clear from the evidence as to what is her relationship with Raja but an impression is created that she was living there because of some relationship. It is also clear that Raja P. W. even though related to the appellant through certain other persons including Ramzan and Elahi Bakhsh had no sympathy for him (the appellant). On the contrary he was annoyed due to his conduct in making advances towards his daughter, the deceased. There fore, even though there is no proof of exact relationship of Mst. Maryam the very fact that she was residing with Raja P. W. and was his dependent may make her interested in fulfilling the desire of Raja in so far as the occurrence is concerned but we would not go to the extent of saying that she had any interest of her own or enmity against the appellant to falsely implicate him. In this view of the matter what is necessary is that her statement should be examined with extra care.
It is not disputed that the deceased had returned to the house of her father for what is called satwara. It is also clear from the statements of so many witnesses that the appellant had made advances towards the deceased before she was married and wanted her hand but Raja P. W. had declined. Therefore it is quite natural that the deceased would have been well cared and looked after during the temporary stay in her father's house and if it is claimed that Mst. Maryam accompanied her to open land in the morning time for answering the call of nature there is nothing improbable in it. On the contrary this conduct of both of them is in line with the circumstances noted above. Otherwise too the place of occurrence which is in a banjar land is about two killas from the basti and the fact that in the morning time the women folk of the same family were there to ease themselves is not something uncommon. It cannot be denied that Elahi Bakhsh P. W. informed the police within about one hour of the occurrence There is no other explanation as to how Elahi Bakhsh came to know of the occurrence so soon thereafter except that he was told by Mst. Maryam about it. This therefore is a further circum stance to indicate that somebody was present with the deceased when the occurrence took place and there being no other suggestion there is nothing unusual in the claim of Mst. Maryam that she having seen the occurrence gave its information to Elahi Bakhsh. All this is in accord with the natural circumstances. The descrip tion that she gave about the injuries completely fits in with the medical evidence and there is nothing in the entire evidence to warrant a conclulsion that she had not seen the occurrence.
The next question is whether Mst. Maryam would substitute the appellant for the real culprit. We have noticed that she has no direct enmity against him and for the sake of Raja P. W. she would not go to the extent of substitution. It is signilicant to note that even according to the statement made by the appellant at the trial he was present with the deceased when injuries were caused to her ; though he charged other persons as culprits. In any case, there is nothing in the statement of Mst.
Maryam to cast a doubt about the fact that she identified the appellant as the culprit.
8. Learned counsel for the appellant, however, urged that Mst. Fateh Bibi was injured during the night by Khadim Hussain her husband and two others . e. Raja her father and Elahi Bakhsh. The circumstance pointed out by the learned counsel in support of this version is that according to Dr. Safia Chaudhry, she examined Mst. Fateh Bibi when she was alive at 9-15 a. m. and that she gave the duration of injuries as six hours. There fore the occurrence according to the learned counsel must have taken place at about 3 a.m. No question was asked from the doctor about the above timings. Learned counsel himself avoided asking her any question on this issue and it was only during the arguments that he relied upon the medico legal report (Exh. P.M.). In our view the learned counsel is not correct when he says that the medical examination took place at 9-15 a.m.
No doubt there appears to be an entry to that effect but it has been soored out under the signatures of the doctor and instead the time noted is 11a.m. It is quite possible that the doctor noted wrong time may be it was of the arrival in the hospital of the patient and then substituted it with 11 a.m. the correct time of the examination. The very fact that the scoring and substitution is signed by the lady doctor shows her bom Tides and the further circumstance that the learned counsel failed to ask her any question about this shows that if she would have been asked any question the explanation or answer would not have been favourable to the defence. We also noticed a similar correction with regard to the duration of the injuries given by Dr. Safia Chaudhry.
But six hours duration is also written in words which has neither been scored nor it appears to be suspicious. We therefore attach no importance to the circumstance pointed out by the learned counsel. Even according to the statement of the appellant it is not clear whether the occurrence took place during the night. According to him on the night immediately preceding the occurrence they had left the basti. He does not say that the occurrence took place during the night. It can legitimately be gathered from this statement that they left the basti during the night but the occurrence according to his version took place in the morning. There are two other circumstances which further support the prosecution case that the occurrence took place in the morning. Abdul Hakim (P. W. 18) the investigating officer, was closely questioned about the place of occurrence and observations made by him when he reached the spot at about 8 a.m. He categorically stated that there were stools near the place of occurrence which had not decomposed when he returned from the hospital. He also stated that when he reached the spot he saw a pool of blood in 6/7 diameter and that it had not dried up. Considering all the circumstances we are satisfied that the occurrence took place in the morning as stated by Mst. Maryam.
Learned counsel also brought to our notice that according to the site plan the occurrence took place on a path therefore it should be presumed that the deceased was going somewhere when she was attacked. It is true that blood was found on the path but according to note No. 2 fresh stools were found at a distance of l karams from the blood. This only shows that in receiving the injuries and till the injured became unconscious she had moved about a karam towards the path.
It is not unusual in view of the nature of the injuries suffered by her. We therefore, find no substance in this argument of the learned counsel either.
In the light of the above discussion we have come to the conslusion that Mst. Maryam did see the occurrence and had correctly identified the appellant as the culprit.
9. However, there is an additional corroboratory circumst ance against the appellant. He was arrested on the same day by Muhammad Anwar H. C., P. W. from near the lake towards which side the witnesses had seen the culprit running away. At the time of arrest he was carrying the hatchet (Exh. P. 1) which has on chemical analysis been found to have been stained with human blood.
When the Sub-Inspector came back from the hospital, the appellant along with the hatchet was produced before him. The hatchet was duly taken into possession through memo. (Exh. P. B.) which is attested by Abdul Hakim, S. I. P. W. Khuda Bakhsh and Allah Bakhsh P. Ws. We have gone through the statements of these witnesses and find nothing substantial which may be of any help to the appellant.
Learned counsel, however, argued that the arrest at or near the lake has incorrectly been shown by Muhammad Anwar, H. C. and that the appellant appeared before him at the police station. No doubt this is the claim of the appellant in his statement under section 342, Cr. P. C. but this position when suggested to the witness was denied by him. Learned counsel invited our attention to a disjointed statement made by Muhammad Anwar P. W. before the committing Magistrate with which he was not confront ed at the trial to the effect that the accused appeared himself. Even if we were to take note of this circumstance as evidence it does not go against the prosecution because it is not clear from it as to whether the appellant appeared before the witness at the police station. It can also be possible that the appellant himself surrendered near the lake. We have noticed from the statement of Abdul Hakim S. I. P. W. that he was cross-examined at length on the question whether or not Muhammad Anwar H. C. accompanied him to the place of occurrence and whether he was entrusted with the duty of arresting the appellant. After having gone through the statement we are in no doubt that this statement (with regard to the arrest of the appellant) is correct. We, therefore, hold that soon after the occurrence the appellant was found in possession of a blood-stained hatchet which was taken into possession soon after his arrest. This is an important corroboratory piece of evidence.
10. The essentials of the prosecution version about motive have not been denied by the appellant.
Moreover this aspect of the case is supported by at least four witnesses we therefore hold that the appellant when he found that he had failed in getting the hand of the deceased through legitimate means desired that she should either elope with him or that she should keep a liaison with him and on her failure or refusel to do so because 4 she had by that time been married to another man he having found an opportunity attacked her.
11. After carefully considering the entire evidence we believe the statement made by Mst. Maryam as true and further that it is supported by many independent and reliable circumstances and hold that the appellant has rightly been held to be guilty.
12. The next question arises as to what offence has been committed by the appellant. According to the learned counsel the case does not fall under section 302, P. P. C. and that the conviction should have been under section 307, P. P. C. His main argument is that in the post-mortem examination a big blood clot and multiple small clots of blood were found at the bifurcation trachea and its branches and because it is not possible to give a finding that these clots were the result of the injuries caused by the appellant and the possibility that they may have been formed by the surgical wound (injury No. 3) cannot be excluded therefore according to him the death was entirely due to the act of the doctor's and in any case it was partly due to the surgical intervention. Though there is nothing in the statement of the doctor to show that the blood clots did not contribute towards causing asphyxia due to which the death was caused but it is not possible to give a finding that the blood clots were necessarily caused by the surgical wound. It is noted in the post- mortem report that the clots were yielding in consist ency. It is quite possible that they were caused by the injuries which were inflicted by the appellant ten days before the post mortem. No question was asked from the doctor in cross- examination on this point. Even at the appellate stage this doctor (Tajjammal Hussain) was not summoned probably because no favourable result was expected by the learned counsel by adopting such a course. We are, therefore, of the.view that there is no basis for the argument of the learned counsel.
Asuming for the sake of argument but without conceding that some of the blood clots may have been caused by the surgical wound and further that they may have partly contributed towards the death this circumstance does not help the appellant in so far as the offence committed is concerned. Learned counsel was unable to develop any convincing argument on the basis of the facts of this case. He however in support of his contention cited Karoo v. The Crown (1) and Said Aminv. The State (2). He also made passing reference to the other cases cited in the last mentioned ruling. In the Lahore case though the injury caused by tbe culprit was fatal in the ordinary course of nature, but it was observed that if there had been no haemolysis which followed blood transfusion the deceased might have been still alive. Their Lordships further observed that they could not be certain that death was due to an act committed by the culprit because so far as they were able to judge haemolysis was not the direct or even the proximate result of injury. In these circumstances it was held that the offence committed was under section 307, P. P. C. The judgment reported in the Supreme Court Monthly Review is in fact of the Federal Court of Pakistan in Criminal Appeal No. 9 of 1952, decided on 30th October 1952. Tt appears that the judgment not being approved for reporting has appeared in the Supreme Court Monthly Review of 1970 in the category of unreported cases. This has been mentioned only for the purpose that the citation could be correctly noted. Tn tbe case before their Lordships of the Federal Court one culprit dealt a hatchet blow on the head of the deceased and his co-accused pushed him into the canal water thereafter. In the post-mortem examina tion sand was found in the wind pipe and in the doctor's opinion death was caused by asphyxia due to drowning. Tt was held that in the circumstances of the case as the death was not the direct or proximate result of the head injury the offence committed was under section 307 and not section 302, P. P. C.
The facts of both the cases cited by the learned counsel are distinguishable. As the death in those cases could not be connected with the conduct of the particular culprit in each case in causing the specific injuries it was held that no offence under section 302, P. P. C. was committed.
It cannot be held that the death in the present case was neither direct or proximate result of the injuries caused by the appellant. Dr. Tajammal Hussain (P. W. 1) has madeacatergorical statement that injury No. 2 i.e. on the front of the neck was grievous and dangerous to life and was sufficient in the ordinary course of nature to cause death and further that the death was due to the same injury i.e. No. 2. We have in particular noticed that the trachea under the aforesaid injury was cut through and through. The other injury is by no means insignificant. Tt was not the back of the neck and sixth cervical vertebra had been not. Therefore, there is nothing to show that the appellant did no intend to cause the death of his victim and further that the death could not be the direct result of injury No. 2 and in any
(2) PLD 1959 Lah. 451 case it cannot at all be said that both the injuries cumulatively were either not sufficient in the ordinary course of nature to cause death or that they did not directly contribute towards the death.
Learned counsel for the state has cited Murad v. The State (1) in support of the contention that the offence committed is under section 302, P. P. C. In the case before their Lordships of the Division Bench the accused had caused injuries to the deceased by pistol shot which had damaged his left lung pleura stomach and spleen. An operation was performed on the injured and the spleen had to be removed. In the post-mortem examination it was found that the death was due to shock and haemorrhage which resulted from the injuries as well as from the removal of the spleen. After consideration of the relevant provisions of law and also some English cases their Lordships came to the conclusion that if a person brings into existence such circumstances which in normal course of events would result in death and death in fact is the sequal that person must be held to have caused the death as required by the purview of section 299, P. P. C. In reaching the above conclusion their Lordships also noticed the reasoning of the Law Commissioner, thus : "in order to find whether in spite of an intervening cause the offender can be said to have caused death it shall have to be determined whether the intervening cause is connected with a sufficient degree of probability with the primary one. If we are to put it in our own words we would say that if a person (who intends to cause death) brings into existence which in the normal course of events have resulted in death that person has caused death." The above ruling fully applies to the facts of this case and supports the learned counsel for the State.
The expression whoever causes death by doing an act appears to have been used in section 299, P. P. C. in relation to a person and as such causes mean exerting his power into action. But there may be cases involving more than one cause contributing to the death. It is not possible to lay down general rule as to what should be regarded as the responsible cause of death because it may not be one cause but a series of causes. In such a situation, the Court has to consider in each case the relative value and efficiency of the different causes in producing the effect and then to say whether responsibility should be assigned to a particular act or not as the proximate and or efficient cause. Abdur Rahim, J. in Public Prosecutor v. Muslmnooru Survanaroyana Moorthy (2) was pleased to visualise that if A mixes poison in the food of B witli the intention of killing B and B eats the food and is killed thereby. A would be guilty of murder even though the eating of the poisoned food, which was the voluntary act of B intervened between the act of A and B's death. But the interven ing acts or events may sometimes be such as to deprive the earlier act of the character of an efficient cause. Thus suppose in the above case B discovers that the food was poisoned and then gave it to C who ate it and died. It is to B's act that the [2] death of C would be imputed and not to I's. Suppose again that B either suspecting that the food was poisoned or merely thinking that it was not fit to be eaten threw it away in some unfrequented place so as to put it out of harms way and C afterwards happen ing to pass by, picked it up and ate it and was killed. The act of A in mixing the poison in the food could in that case hardly be said to have caused the death of C within the meaning of this section. On the other hand suppose B finding C standing near him and without suspecting that the food was poisoned gave a portion of it to C and C ate it and was killed. A would be responsible for the death of C. In the same case, Benson .1. was pleased to observe that we ordinarily speak of a result as caused by the most conspicuous or efficient cause without specify ing all the contributory causes. But as Mr. Hari Singh Gour commented in his celebrated work on the Penal Law of India the doctrine of criminal causation has reasonable limits. It is not interminable and there are cases when the Court would regard the cause as too remote to support a criminal charge. He quoted the example of a culprit who on some dispute pushed with his foot the boat in which the deceased was sitting and the latter thereupon stretched out over the bow of the boat to lay hold of a barge to prevent the boat drifting away and in so doing lost his balance and fell overboard and was drowned. It could not be held in these circumstances that these facts were sufficient to hold that the culprits caused the drowning because the push was too remotely connected with the subsequent drown ing as there were two intervening acts on the part of the deceased i. e, stretching out to seize the barge and losing his balance which equally accounted for his death.
The conclusion reached therefore is that the cause must not only be the causa sin qua non but it must also be a cause reasonably proximate. The authors of the code while dealing with Explanation No. IT which provides that 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 observed about law Commissioners report as follows :-- "The meaning of the Commissioners wc conceive to be is that whereas in countries in which good medical treatment is common it is difficult to suppose that a person inflicting a slight wound on another could contemplate his death as a probable result such a result may be supposed to enter into his contemplation in a country where bad medical treatment is far more common than good and therefore the definition of homicide ought not to exclude death resulting from a slight wound as the primary or original cause."
This in our view is undoubtedly an extreme meaning and might not be necessary to adopt in each case particularly in the modern developed society. We are of the view that the death should be connected with the act of violence or other primary cause not merely by a chain of causes and effects but by such direct influence as is calculated to produce the effect without the intervention of any considerable change of circumstances.
In other words the act of the culprits should be the primary proximate and/or efficient cause of death.
All the conditions discussed above are satisfied in this case. Therefore the only fact that there is a possibility that some or more of the blood clots found by the doctor in the trachea of Mst. Fateh Bibi deceased may have partly contributed to her death and the further possibility that some of those clots may have been caused by the surgical wound does not make any differ ence because the primary proximate efficient and responsible cause of her death was the two injuries caused by the appellant in particular injury No. 1 which was sufficient in the ordinary course of nature to cause death. He is therefore guilty of murder.
11. With the above observation and finding we repel the con tention of the learned counsel. The appeal is dismissed. There is no extenuating circumstance in this case. The sentence of death awarded to the appellant is confirmed. .