Appellants Babar (20) and Abdul Rashid (16), both residents of Chak No.296/J.B, were tried by the Sessions Judge, Lyallpur (Faisalabad) on a charge under section 302/34, P.P.C. For the murder of Mohammed Safdar Naeem, their do-villager; vide judgment, dated 10-5-1875, they have been convicted and sentenced to imprisonment for life and a fine of Rs.1,000 each or in default further six months' R.I. Each under section 304-1, P.P.C. The amount of fine, if realized was ordered to be paid to the heirs of the deceased.
2. They have appealed. Mst. Majeedan, deceased's mother, has filed Criminal Revision No.895 of 1975 praying for conviction of the appellants under section 3.02134 P.P.C. After setting aside their conviction under section 304, Part 1, P.P.C. I propose to dispose of both these matters by a single judgment.
3. The occurrence allegedly took place at 4-30 p. m. On 17-1-1974 in Chak No.296/J.B. Statement Exh.
P.G. Of the deceased was recorded by Umar Hayat S.I. On 7-50 p.m. The same day. Formal F.I.R.
Exh./P.G/I1 was prepared by Rahat Majid A.S.I. At 8-00 p.m. At Police Station Gojra.
4. Prosecution case in brief is that the deceased was standing in the village Chowk near the shop of one Fazal Karim when he was surprised by the two appellants. Appellant Babar was armed with a knife. Appellant Abdur Rashid held the deceased in his grip while Babar appellant gave a knife bloc hitting him on his left flank. He gave two more blows which fell near the left eye. Muhammad Latif and Maqsood Ahmad P.Ws. Witnessed the occurrence while standing near the shop. On their arrival, the appellants ran towards their houses.
As to the motive for this attack, it has been stated that 3-1-1974 appellant Babar while drunk passed by the house of deceased and abused him. The deceased also abused him in return. This annoyed Babar which caused the resultant attack on the deceased.
5. A.S.I. Umar Hayat P.W. After recording the statement of deceased in Civil Hospital, Gojra, sent it to the Police Station fort registration of a case. Sardar P.W. Produced before him blood-star. Saluka P.1, sweater P.2 and shirt P.3 of the deceased which he if into possession. Vide memo. Exh. P.B. He then proceeded to the spot on the same day. He collected blood-stained earth from the place occurrence vide memo. Exh.P.A. In the village he learnt that condition of the deceased in the hospital had deteriorated. He came back. 7 Assistant Commissioner, Toba Tek Singh was present in the office the Municipal Committee, Gojra. He (the witness) presented an application --Exh.P.K.
Before him for recording the dying declaration of the decease The Assistant Commissioner vide order Exh.P.K./1 directed the Naib Tehsildar to do the needful. Syed Jafer Ali P.W.2. Naib Tehsildar recorded the dying declaration Exh.P.L. On 18-1-1974. On 19-1-1974. He received information that the deceased had expired. He came to hospital and prepared injury statement Exh.P.H. And inquest i.e Exh.P.H./1 and despatched the dead body to the mortuary post-mortem examination. He arrested the appellants on 22-1-1974 Appellant Babar led to the recovery of knife P.7. It was taken possession vide memo. Exh.P.D. He got site plan Exh.P.E. And copy Exh.P.E/1 prepared from the draftsman.
6. Dr. Muhammad Rafiq P.W.1, examined the deceased on 17-1-1974 at 6-20 p.m. When he was alive.
He found the following injuries on person: (1)An incised wound 1 --"x bone deep above the left eye brow on the forehead. There was through and through cut of orbital portion of the frontal bone.
(2)An incised wound 1/6"x -- " x bone deep 1/3" below injury No.1.
(3)A stab wound 1"x -- "x --" on the outer aspect of left chest on 11th and 12th ribs. There was corresponding cut on the shirt sweater and Saluka.
Injury No.3 was kept under observation. Injury No.1 was declared grievous and injury No.2 was found simple. All the injuries were caused, with sharp-edged weapon within the duration of 1 to 4 hours.
He referred the injured to Medical Superintendent District Headquarters Hospital, Jhang, for further treatment. From there got information that he had died. He sent information of this fact the police, vide Ruqqa Exh. P.N.
On 19-1-1974 he conducted post-mortem examination on the body of deceased and found the following injuries: (1)Stitched wound 1 --"x --" above the left eye-brow and on forehead.
(2)Incised wound 1/6"x --" below the injury No.1.
(3)Stitched wound 8 --"x 3" on outer aspect of the left chest on 11th and 12th ribs.
On dissection the spleen, the pleura, diaphram, stomach and kidney were found injured. Injury No.3 was found dangerous to life. In the opinion of the doctor death occurred due to shock and severe haemorrhage caused by injury Nos.1 and 3. These injuries were sufficient to cause death in the ordinary course of nature. Time between injuries and death was 24 to 36 hours and between death and post-mortem examination was about 14 hours.
7. Learned counsel for the appellants moved an application under section 428 Cr.P.C. For summoning additional evidence, contending that the circumstances under which the deceased had been sent to the D.H.Q. Hospital, Jhang have not been fully brought out. This application was allowed by order of this Court, dated 23-6-1976 and some additional evidence recorded.
Muhammad Rafiq, Second Clerk, D.H.Q. Hospital Jhang (CW2) produced the Operation Register from 29th October, 1973 to 19th July, 1974. Name of one Muhammad Safdar son of Nazir Ahmad of Chak No.296/J.B. c/o Civil Hospital, Gojra, District Lyallpur, was shown at serial No.63. He was received with a stab wound on 18-1-1974. He had to be operated upon by Dr. Muhammad Ahsan (Medical Superintendent) and Dr. Ghulam Mustafa (Visiting Surgeon). He also produced Indoor Admission Register beginning from 9th December, 1973 and ending with entry No.1169, dated 15-4- 1974. Against entry No.203, the deceased was admitted on 18-1-1974 through Gojra Civil Hospital. He could not produced the bed head ticket. He stated that Dr. Muhammad Rafiq Medical Officer Gojra accompanied with the patient to the hospital and got him admitted there. He stated in Court that he had gone to Gojra for obtaining a certified copy of the Medico-Legal Certificate No.16 of 1974 as he was required to produce the same. He pointed out to one Muhammad Akram, present in Court, stating that an affidavit was given to him at Gojra. He produced the affidavit in Court. On 1-7-1976 he (Muhammad Rafiq C.W. 2) produced Blood Transfusion Register which contained four entries Nos.18, 19, 21 and 23, pertaining to transfusion of blood to Muhammad Safdar Naeem son of Nazir Ahmad on 18-1-1974. He was unable to produce bed head ticket and operation notes.
Muhammad Akram was examined as C.W.
3. He stated that Muhammad Safdar was first cousin. He therefore, was taking interest in this case. He was present when order, dated 23-6-1976 was passed. He contacted the Medical Superintendent who disclosed that the record was not available.
It was on that disclosure that he gave the affidavit from his personal knowledge. In the affidavit, the witness stated that the patient was never taken to D.H.Q. Hospital, Jhang. However, after hearing the statement of the witnesses he came out ............. That he was not in a position to deny that the injured was not removed to Jhang and operated upon, there.
Aziz-ur-Rahman, Dispenser Civil Hospital, Gojra was examined as C.W.
4. He produced the register containing the certificate about the examination of the deceased. He stated on his personal knowledge that the deceased was taken to Civil Hospital, Jhang as it was a case of suspected internal haemorrhage.
Dr. Ghulam Mustafa, Assistant Professor Surgery Quaid-i-Azam Medical College, Bahawalpur, was examined as C.W.
6. He, after examining the relevant entry in the operation register, dated 18-1- 1974, stated that the deceased was operated upon by Dr. Muhammad Ahsan and he assisted him.
He was not sure as to the result of the operation or to the fate of the operation because there was no entry to this, effect in the register.
Dr. Muhammad Ahsan, Medical Superintendent. District Headquarters Hospital, Jhang, was examined as D.W.
8. He produced the register of outdoor patients which contained entry regarding the deceased at serial No. 1458, dated 18-1-1974. He also produced the bed-head ticket of the patient. This has been exhibited as C.W. 8/A. He stated that he had performed the operation upon the deceased general anaesthesis. Dr. Ghulam Mustafa assisted him in the operation. He pointed out to some errors in the bed-head ticket which were due to over sight.
Dr. Jafar Hussain Jafry, Assistant Professor General Surgery King Edward Medical College, Lahore, has been examined as D.W.
1. He stated that pulp of the spleen is made of blood spaces which is traversed by the blood vessels of the spleen. This organ is made of such a stuff that it cannot be stitched as it will lead to further, haemorrhage. He pointed out that however, it depends on the type and nature of the injuries. In most of the cases there is rupture of the spleen and in some cases it is damaged by an injury from a sharp pointed weapon. He examined the post-mortem report and stated that it has been mentioned there that the spleen had been stitched. He also perused the original medico legal report. He explained that difference in the dimension of injury No. 3 could be due to surgical operation.
Learned counsel for the appellants, in defence produced copy of the death certificate. According to this document, the deceased was shown to have died on 18-1-1974. From the evidence discussed above, I am satisfied that the patient was removed to D.H.Q. Hospital, Jhang and was operated upon and died there. No importance can be attached to the death certificate produced by the learned counsel as it differs with the overwhelming evidence to the contrary.
8. Appellants at the trial denied the accusation and pleaded innocence. Babar appellant as to his involvement in the case stated that Maqsood Ahmad and Muhammad Latif P.Ws. Used to visit the house of one Khalida, cousin of Muhammad Safdar Naeem, deceased. He had asked them to desist from such an immoral pursuits and they, therefore, became inimical towards him. Deceased Safdar Naeem was a catamite and many goondas of the village were after him. He had associated himself with some of them to the disappointment of some others. One of such persons might have killed him, He had been involved in the case due to enmity with Muhammad Latif and Maqsood Ahmad P.Ws. He stated further that Sardar Muhammad was a tenant of Ch. Bashir of Gojra who was an influential person. The dying declaration and other recoveries have been planted against him at his instance.
Abdul Rashid appellant denied his friendship with appellant Babar. He stated that his father was tenant of Maqsood Ahmad P.W. He had not given up the possession of the land despite the request of Maqsood Ahmad P.W. He had been involved in the case at his instance.
9. Prosecution at the trial relied on the ocular evidence given by Muhammad Latif P.W. 9 and Maqsood Ahmad P.W.
10. Dying declaration of the deceased recovery of knife P.7 at the instance of Babar appellant the motive and finally the medical evidence.
10. The learned trial Judge has not believed recovery of knife P 7. It his been observed: "I do not feel any hesitation in saying that it was sham and planted against him to provide the case with circumstantial evidence in support. The Investigating Officer claims to have arrested both the accused on the 22nd of January, 1974, and his statement is that Babar accused expressed his willingness to lead him to the recovery of blood-stained knife, in consequence of his interrogation and that then blood-stained knife P. 7 was recovered at his instance in the presence of Girdawar Khan and Nazeer Ahmad P.Ws. Out of these two only Girdawar Khan, however, has been examined as P.W. 8
11. Learned counsel for the appellants addressed two fold arguments. In the first place, it was contended that the involvement of appellant Abdul- Rashid has not been established beyond reasonable doubt. He had no community of interest with appellant Babar. He had denied his friendship with him. His father was a tenant under Maqsood Ahmad P.W. And was not giving up possession of the land despite requests of Maqsood Ahmad P.W., in this regard. Medical evidence belies the position taken up by the prosecution that appellant Abdur Rahid held the deceased in his grip while Bebar appellant inflicted blows. The deceased had suffered two injuries near the forehead and the third on the outer aspect of the left chest on the 11th and 12th ribs. These injuries could not possibly be inflicted when the deceased was held in a jappha. In the dying declaration though the deceased had named Abdur Rahid appellant as co-accused with appellant Babar, but this document is of' very doubtful nature. It is almost a copy of the F I R and spreads over a full scape sheet. Signatures on this, to the necked eye, does not tally with the signatures on his statement Exh. P.G. The deceased when examined in the hospital on 17-1-1974, all his injuries were profusely pleading and his pulse was 100 per minute. He could not, in the circumstances, make a consistent statement as contained in the dying declaration.
PLD 1959 Lah. 451 to contend that where the death is not the direct result of injury, the accused cannot be convicted for murder. Reference, in particular, was made to the following observation appearing at page 455: "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 If death is not caused by such an act, but something intervenes between the doing of the act and death of the tar, concerned, it is obvious that the offender would not be guilty of the offence of culpable homicide, but he might be guilty some other offence. There may, however, be cases where though death is not the direct result of the act of else intervenes, that something is the 'Act' result of the act causing the injury in which case, the person who had done r-- act would be guilty of the offence of culpable homicide, though death may not have taken place if that thing has e intervened. For instance if as a result of an injury, peritonitis or tetanus sets in, and the injured man dies, the person 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 there death is not the direct result of an injury and else may intervene, but that something is not the direct of the injury.
For instance, an injured person, as a result of wrong treatment in the hospital dies, death, in such 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 no application."
He also referred to some cases from Indian jurisdiction to elaborate this point, but I do not find it necessary to burden the judgment any more.
12. Learned counsel for the State, on the other hand, argued that the prosecution has established its case against both the appellants beyond doubt. It was a pre concerted and well-planned attack.
He even questioned the view of the learned trial Judge convicting the appellants under section 304-I, P.P.C.
13. I have considered the arguments raised at the bar and have gone through the record of the case carefully with the help coy the learned counsel for the parties.
Maqsood Ahmad P.W. Has admitted that appellant Abdul Rashid's father was his tenant. He has however, denied if he refused to vacate the land. In the case of Abdul Rashid though with an awareness that conviction against him even can be sustained on the evidence brought on the record, I am inclined to take extreme caution. His implication might be due to over exaggeration of the prosecution case by the witnesses. There is some merit in the submission of the learned that when the deceased was held in a japhha, he could not possibly tie given a blow in the flank. I, therefore, giving him benefit of doubt, acquit him.
14. In the case of appellant Babar however, the prosecution has quite consistently stuck to its stand.
He was named in the F.I.R. Two witnesses of the spot examined against him, do not appear to have any motive to falsely implicate him. The only criticism levelled Muhammad Latif P.W. Is that he appears to be a chance witness. He has given explanation that he was going to purchase vegetable from the shop of Fazal Karim when he happened to witness this occurrence. He has made some improvements over his previous statement in regard to the earlier incident when the deceased and Babar exchanged abuses but in so far as the main occurrence is concerned, his evidence is consistent and inspires confidence. He denied the suggestion that he used to visit the house of deceased's cousin Mst. Khalida alongwith Maqsood Ahmad P.W. In fact it appears to be a crude attempt not only to malign the witness but also to defame a female member of the deceased's family. He is resident of the same Chak and, therefore, his presence at the spot was not very unnatural. He cannot be dubbed as a chance witness. Maqsood Ahmad P.W. Similarly, does not appear to have any motive to falsely depose against Babar appellant. He has also denied the suggestion that he used to visit the house of Mst. Khalida, a cousin of the deceased. His house is at a distance of 4/5 killas from the place of occurrence. His presence too therefore, in the village Chowk, was not very unusual. On merits, therefore, I am inclined to take the view that the prosecution has been able to establish the involvement of the appellant Babar beyond reasonable doubt.
15. This brings me to the nature of the offence committed by the appellant Babar. I have already discussed the evidence recorded by this Court in paragraph No. 7 above, pointing to the circumstances leading to the death of the deceased in D.H.Q. Hospital, Jhang. I have held that the deceased was removed to D.H.Q. Hospital, Jhang and was operated upon and died there. There is, therefore, no force in the submission of the learned counsel that the deceased expired in Civil Hospital, Gojra on account of the negligence of the doctor in performing surgery on him. One of the injuries suffered by the deceased was a stab wound on the outer aspect of left chest. On dissection, spleen, pleura, diaphram. Stomach and kidney, were found injured. There cannot be any dispute with the proposition laid down in the Lahore case cited above that where the death is not the direct result of the injury and something else had intervened and that something is not the direct result of the injury, the accused cannot be convicted for murder. Under section 299, P.P.C., 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, . . . .. . . . . . . . . . . . . Commits the offence of culpable homicide. There is a subtle distinction between clause thirdly of section 300, P.P.C. Which embodies that culpable homicide is murder if the act by which the death is caused is done with the intention of causing such bodily injury to any person and the bodily injury intended to be inflicted, is sufficient in the ordinary course of nature, to cause death, and second part of section 299, P.P.C.
A person inflicting a dagger blow in the flank of another, can well be said to have caused the death by doing an act at least, with the intention of causing such bodily injury as is likely to cause death.
The case is, therefore, clearly covered by second part of section 299, P.P.C. No exception, therefore, can be taken to his conviction under section 304-I, P.P.C. In the matter of sentence, also, I am not inclined to interfere with the judgment of the learned trial Judge.
16. For the foregoing reasons this appeal partly succeeds inasmuch as the conviction and sentences of appellant Abdur Rashid are set aside and he is acquitted. He shall be released forthwith if not required in any other case. The appeal of appellant Babar is however, dismissed. His conviction and sentences are maintained.
17. On the view, I have taken in the main appeal, question of enhancement of the sentence awarded to appellants or their conviction under section 302/34 , P.P.C. Does not arise. The revision petition, therefore, has no merit and is dismissed accordingly.