' RIAZ AHMAD, J.-- Appelldnts Qamar Sultan son of Ghulam Abbas, Muhammad Naseem son of Abdul Shakoor, Muhammad Nawaz son of Bahadur and Abdul Latif son of Muhammad Yacjoob were tried by the learned Additional Sessions Judge at Khanewal on charges under section 302/307 read with section 34 of the Pakistan Penal Code for having caused the murder of Muhammad Ashraf deceased, and for having committed the murderous assault on Shabrati complainant P.W.6 and one Muhammad Sadiq.
2. Vide judgment, dated 21st of December, 1986, the learned Additional Sessions Judge acquitted all the appellants on the charge under section 302, P.P.C., but found all of them guilty on the charge under section 304, Part II, P.P.C. Accordingly on the aforesaid charge, each of the appellants was sentenced to undergo rigorous imprisonment for a term of three years and six months, and to pay a fine of Rs,5,000 each, or in default thereof, to suffer another term of rigorous imprisonment for one year each.
3. The appellants were also found guilty on the charge under section 324, P.P.C. Read with section 34, P.P.C. For having caused injuries to Muhammad Sadiq. On this charge, each of the appellants was sentenced to suffer rigorous imprisonment for a term of two years, and to pay a fine of Rs,2,000 or in default whereof, to suffer further rigorous imprisonment for a term of six months.
4. The appellants were also held guilty on the charge under section 323/34, P.P.C. For having caused injuries to Shabrati. On the said charge, each of the appellants was sentenced to suffer rigorous imprisonment for a term of six months, and to pay a fine of Rs,1,000 each, or in default, to suffer another term of rigorous imprisonment for three months. All the sentences were, however, ordered to run concurrently. It was further directed, that the fine, if recovered on the charge under section 304, Part II, shall be paid to the legal heirs of Ashraf deceased as compensation under section 544-A, Cr.P.C.
5. Aggrieved by the aforesaid judgment, the appellants have assailed their conviction through Criminal Appeal No, 31 of 1987, the State has also called in question the acquittal of the appellants under section 302, P.P.C. By way of filing Criminal Appeal No, 114 of 1987. Complainant Shabrati has also filed a Revision Petition No, 20 of 1987 challenging the acquittal of the respondents on the charge under section 302, P.P.C. This judgment shall dispose of both the appeals and the revision petition.
6. The occurrence resulting into the death of Muhammad Ashraf deceased and injuries on the persons of Shabrati and Muhammad Sadiq P.Ws. Took place on 15-6-1985 at 6-30 a.m. In Basti Esaian in Kabirwala Town situated at a distance of one furlong from Police Station Kabirwala.
Occurrence was reported by Shabrati P.W.6 in Civil Hospital Kabirwala. Muhammad Anwar A.S.I.
Recorded the statement of Shabrati P.W.6 Exh.P.K. At 8-15 a.m. The said statement was sent to the police station, where formal F.I.R. Exh.P.K./1 was drawn by Said Muhammad Head Constable P.W.3.
7. The prosecution case as narrated in the F.I.R. Was that the deceased Muhammad Ashraf son of Shabrati complainant P.W.6 and Ghulam Abbas brother of Atta Muhammad P.W.7 had quarreled with Muhammad Nasim appellant. In the said quarrel, appellant Muhammad Nasim was injured, as a consequence of which, a case was registered against deceased Muhammad Ashraf and Ghulam Abbas under section 307, P.P.C. It was alleged that appellant Muhammad Nasim wanted to avenge himself for the injuries caused to him by the deceased Muhammad Ashraf. On the day of occurrence, the deceased Muhammad Ashraf along with his father Shabrati P.W.6 and his brother Muhammad Aslam and P.W.7 Atta Muhammad a brother of Ghulam Abbas were preceding to the Court, where Muhammad Ashraf deceased and Ghulam Abbas had to appear in connection with the case registered against them under section 307, P.P.C. It was alleged that as soon as they reached near Basti of Christians in Kabirwala, all the appellants appeared on the scene. Appellants Qamar Sultan and Muhammad Nasim were armed with pistols while Muhammad Nawaz and Abdul Latif were armed with Sotas. All the aforesaid appellants allegedly raised a Lalkara that they (appellants) had come to teach a lesson to their enemy, who will not be let to go alive. After the Lalkara, appellant Qamar Sultan fired a shot hitting the leg of Muhammad Ashraf deceased, who fell down. Appellant Nasim fired a shot aiming at Shabrati, who laid on the ground to save himself, thus the fire shot by appellant Muhammad Nasim missed the complainant Shabrati, but hit Muhammad Sadiq a passerby. Appellant Muhammad Nawaz and Abdul Latif inflicted Sota blows on the person of Shabrati complainant. Occurrence was witnessed by Ata Muhammad and Muhammad Aslam son of the complainant and brother of the deceased. After injuring Muhammad Ashraf deceased, and Muhammad Sadiq and Shabrati P.Ws., all the appellants escaped from the scene of occurrence along with their weapons.
8. Complainant Shabrati, deceased Muhammad Ashraf and injured Muhammad Sadiq were taken to the hospital, where they were medically examined.
9. On receiving the information of the firing, Muhammad Anwar A.S.I. Reached the Civil Hospital Kabirwala, where he recorded the statement of Shabrati. After sending the statement of Shabrati to the police station for the registration of the case, Muhammad Anwar A.S.I. Recorded the statement of deceased Muhammad Ashraf and Muhammad Sadiq injured, as they were declared fit by the doctor to make statement.
10. Muhammad Ashraf deceased and Muhammad Sadiq injured were referred to Nishtar Hospital Multan, where on 1st of July, 1985 Muhammad Ashraf deceased breathed his last.
11. On 15-6-1985 Dr. Allah Nawaz Brohi P.W.1 medically examined Muhammad Sadiq and found the following injuries on his person:-
(1) An oval-shaped fire-arm wound of entry on the area between two eyebrows.
(2) Fire-arm oval-shaped wound of entry on left side of face and mandible.
(3) 11 fire-arm oval-shaped wounds of entry on antero left lateral surface. Of neck.
(4) 34 fire-arm wounds oval-shaped of entry on front of upper part of left chest.
(5) 9 fire-arm wounds of entry oval-shaped'on outer surface of left arm.
(6) 2 oval-shaped fire-arm wounds of entry on posterior surface of left forearm upper 1/3rd.
(7) 8 oval-shaped wounds of entry on front of chest both parts.
(8) One oval-shaped fire-arm wound of entry at epigastrium.
(9) One oval-shaped fire-arm wound of entry on right upper part of abdomen. Each wound is 1/2 c.m. x 1/3 c.m.
12. On the same day, the said doctor also medically examined complainant Shabrati P.W.6 and noticed the following injuries on his person:-
(1) Lacerated wound 3 c.m. x 1/2 c.m. x bone deep on right anterior part of skull 14 c.m. Above right eyebrow.
(2) Lacerated wound 3 c.m. x 1/2 c.m. On mid anterior part of scalp at hairy margin.
(3) Swelling on back of right hand extending to right thumb.
13. On 1st of July, 1985 Dr. Zia-ud-Din Zaidi P.W.2 conducted post-mortem examination on the dead body of deceased Muhammad Ashraf and the following injuries were noticed on his dead body:-
(1) Healed lacerated wound on the right side of the head 2-1/2 c.m. x 1/2 c.m. x scalp deep at a distance of 16 c.m. Above the right eyebrow.
(2) The left leg was amputated at upper 1/3rd level and the wound was not stitched with foul smelling done by the surgeon after developing gangrene of the left foot
(3) An incised wound below the umbilicus bone by the Surgeon for peritoneal dialysis. The doctor deposed that gangrene had developed for which the leg of the deceased was amputated. In the opinion of the doctor, the cause of death was pulmonary embolism and septicemia as a result of complications of injury No, 2 caused with fire-arm. Injury No, 2 was sufficient to cause such complications resulting into the death of the deceased.
14. It may be stated here that the deceased before his death was also medically examined by Dr. Allah Nawaz Brohi P.W.1 and the following two injuries were noticed on his person:
(1) 6 fire-arm rounded wounds of entry on left leg upper most part 5 c.m: below left knee-joint anterior surface 1 c.m. x 1 c.m. Its margin was burnt and inverted.
(2) Lacerated wound 2-1/2 c.m. x 1/2 c.m. x scalp deep on right anterior part of scalp 16 c.m. Above right eyebrow.
15. On 1st of July, 1985, all the appellants were arrested by Mushtaq Ahmad Inspector P.W.9. On 14th July, 1985, appellant Qamar Sultan led the police and got a pistol Exh.P.5 recovered from the roadside, which was taken into possession vide memo. Exh.P.P. Attested by Shabrati complainant P.W.6 and Ishaque (not produced) besides the Investigating Officer P.W.9.
16. Appellant Muhammad Nasim led the police and got recovered a pistol P.4 recovered from a heap of straw, the same was taken into possession vide memo. Exh.P.O. Attested by Shabrati P.W.6 (Ishaq not produced) besides the Investigating Officer P.W.9.
17. Appellants Muhammad Latif and Muhammad Nawaz also got recovered Sotas which were taken into possession. Since, no empty was found from the spot, and the Sotas were also not found to be blood-stained, therefore, the recoveries as to the weapons of offence are insignificant.
18. To substantiate its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by complainant Shabrati P.W.6, Atta Muhammad P.W.7, Muhammad Sadiq injured P.W.
Was given up having been won over. Besides, the ocular testimony, the prosecution also placed reliance upon the dying declaration Exh.P.S. Made by Muhammad Ashraf. This statement was recorded under section 161, Cr.P.C. By Muhammad Anwar, A.S.I. On the death of Muhammad Ashraf deceased, the same was treated as dying declaration.
19. When examined under section 342, Cr.P.C. All the appellants denied the charge, and stated that they had been implicated falsely due to enmity. Appellants refused to make any statement under section 340, Cr.P.C., but in defence produced two defence witnesses. Asghar All D.W.1 produced the bed head ticket of Muhammad Ashraf deceased which was brought on the record as Exh.D.E.
20. Dr. Ghulam Haider Qureshi D.W.2 stated that in the month of June, 1985, he was posted as Registrar in Ward No, 24, where Muhammad Ashraf deceased was admitted for treatment for multiple fire-arm injuries on his leg. Dr. Qureshi further stated that the deceased developed gangrene of foot, and thus, its amputation was advised, but the patient and his relatives refused to accept the Advice of amputation and, as a consequence of the said refusal, the deceased developed acute renal failure. According to the doctor, ultimately, the amputation was effected, but the patient died in the Nephrology Unit due to Toxaemia. The doctor produced a report Exh.D.D.
Dated 22-7-1985 which he had issued under the orders of A.C./S.D.M., Kabirwala. The doctor further deposed that the patient was advised blood transfusion, and the blood was purchased from Bazar which was transfused to the patient on his own risk. Doctor also stated that it was only on 22-6- 1985 when ultimately relatives of the deceased consented to the amputation of the leg of the deceased for the first time, therefore, the leg was amputated on 27-6-1985.
21. The appellant Qamar Sultan in defence placed on record a school leaving certificate Exh.D.F., in which his date of birth was recorded as 15-5-1969. A copy of mutation Exh.P.G. Was also placed on record to show the enmity between his grandfather and Mehdi Khan.
22. With the assistance of the learned counsel for the appellants learned counsel for the complainant and the learned A.A.-G., we have carefully perused the record of this case, and we have also heard all the learned counsel at length.
23. The learned counsel for the appellants vehemently argued that as far appellant Qamar Sultan was concerned, the F.I.R. Did not indicate any overt acti on his part. It was further argued that Shabrati P.W. 6 stated that Muhammad Ashraf deceased and Ghulam Abbas had injured appellants, Nasim and Qamar Sultan. Appellant Nasim got a case registered, while Qamar Sultan did not take any action, therefore, no motive lay with the appellant Qamar Sultan, and thus, case of the prosecution to the extent of appellant Qamar Sultan fails.
24. It was next contended that the appellants had no connection with each other. They belong to different Bradris, and their houses are situated at different places, and their joining together to launch an attack is improbable.
25. We have considered these contentions carefully and we do not find any merit in them. F.I.R. In this case was lodged promptly, in which, all the appellants and their respective roles were assigned, therefore, we are not convinced with the arguments. Failure on the part of Qamar Sultan to get a case registered against the deceased and Ghulam Abbas does not demolish the motive as set up by the prosecution because the appellant Nasim had got a case registered. The defence failed to bring on the record to show that Qamar Sultan was even a witness in the case which was got registered by Nasim against Muhammad Ashraf and Ghulam Abbas, therefore, the argument of the learned counsel has no bearing upon the issue. As far as the inter se link of the appellants is concerned, there is nothing odd or strange if the assailants in a crime belong to different Bradris.
Their presence alone is sufficient to establish the link inter se. Hence, this contention is also repelled.
26. It was further argued that Shabrati P.W. 6 father of the deceased is a chance witness, because he resides at a distance of 8 miles from the place of occurrence. The learned counsel for the appellants perhaps forgets that the deceased on the fateful day had to appear in a Court in connection with the case registered against him under section 307, P.P.C. Shabrati P.W. 6 father of the deceased would have accompanied his son to attend the Court, such conduct is not un- natural. Hence, we are not impressed by the argument that Shabrati P.W. Is a chance witness.
Similarly, it was also argued that Aslam and Sadiq had no business to be at the place of occurrence, because they were not supposed to go to the Court. Sadiq is an injured witness.
However, he had not appeared. His medico-legal certificate has been brought on the record, therefore, we are convinced that he was injured.
27. It was also argued that Ata Muhammad P.W. 7 eye-witness was cited, because he happened to be the real brother of Ghulam Abbas a companion of the deceased and he acted like deceased to have committed offence under section 307, P.P.C., therefore, he was an interested witness and his statement could not be relied upon. This argument has also no substance, because Ata Muhammad P.W. 7 was also accompanying the deceased and he had to attend the Court on the fateful day along with his brother Ghulam Abbas, therefore, his presence could not be doubted.
28. It was also argued that one Mehdi and Shabrati P.W. 6 had a dispute over some land, and at the instance of Mehdi, Qamar Sultan was implicated in this case, because Mehdi and Shabrati belong to the same Bradri. In fact, the grandfather of Qamar Sultan had a dispute of land with Mehdi, and this is too far-fetched enmity to believe that Mehdi would have acted at the behest of Shabrati to involve Qamar Sultan because his grandfather was litigating with Mehdi. Hence, we have no hesitation to repel this argument as well.
29. Assessing the ocular testimony which was furnished by Shabrati and Ata Muhammad, their statements are consistent: Shabrati was injured therefore, his presence cannot be disbelieved. The ocular testimony also stands corroborated by c dying declaration Exh. PS, the statement of the deceased which was recorded under section 161, Cr.P.C. Said statement fully corroborates the ocular testimony all material respects; therefore, we hold that the prosecution has established its case beyond any shadow of doubt. As far as motive is concerned, we are convinced that the motive as set up by the prosecution also rings true. It was only with a view to avenge themselves with the previous fight, the appellants had launched an attack at Muhammad Ashraf deceased and his father Shabrati, in course of which, one passerby was also injured:
30. It was also argued' that Shabrati P.W. 6 and Ata Muhammad P.W. 7 stated that Muhammad Nawaz also had inflicted Sota blow on the head of the deceased, whereas, Shabrati in his statement did not state that Muhammad Nawaz had inflicted any injury on the person of the deceased. Similarly, our attention was also drawn to the fact that Ata Muhammad P.W. 7 in his statement recorded under section 161, Cr.P.C. Had not stated that Muhammad Nawaz had inflicted any Sota blow. The said fact would have found mention in the F.I.R. As well as in the statement of Ata Muhammad recorded under section 161, Cr.P.C. We have also considered this aspect but in such' like case in' which fire-arms and Sotas are used, it is not possible to remember with exactitude the role of each assailant who launch the attack. Even otherwise, if one acts in furtherance of D common intention, then the question of specific role or its omission loses its significance.
31. The next crucial question arising for determination in this case is whether the conviction of the appellants under section 304, Part II, P.P.C. For the murder of Muhammad Ashraf is justified. On this score, the State has also filed an appeal. The learned trial Judge while dealing with this question observed that the injury No,1 below the left knee joint received by the deceased reveals that its margins were burnt. Thus, the learned trial Judge observed that the deceased was fired at from a very close range therefore, there was no bar in the way of the assailant to fire another shot. It was also held that since the second fire was not shot, and the first fire had not hit the vital part or organ of the deceased,. Therefore, the intention to kill him was absent. The learned Additional Sessions Judge in the light of the statement .Of Dr. Zia-ud-Din P.W2 and Dr. Ghulam Haider D.W2, further observed that gangrene had, developed which led to the amputation of the leg of the deceased.
The learned Additional Sessions Judge was also of the view that embolism of the heart was the main cause of the death and the consent for amputation of leg was given only on. 22-6-1985 and despite that the doctors did not amputate the leg till 27-6-1985, therefore, the element of negligence in the treatment was visible. It was thus held that the offence is covered by section 304, Part II, P.P.C. And not under section 302, P.P.C.
32. We have carefully considered the reasons advanced by the learned Additional Sessions Judge, as reproduced above. Unfortunately, the learned Additional Sessions Judge while arriving at this finding, lost sight of the fact of the provisions of section 299, P.P.C. Alongwith its explanations 1 and
2. Section 299 and its explanation were interpreted in a similar case decided by the Supreme Court of Pakistan reported as Tajamal Hussain v. Nisar Mehdi and another PLD 1976 SC 377. It will be useful to reproduce the relevant portion of the judgment delivered by the Supreme Court of Pakistan which reads as under:- "Although the first explanation to section 299, P.P.C. Is not directly relevant to the instant case, it is totally inconsistent with the view that an accused can come within the mischief of section only if the death of the victim is the direct result of the injury inflicted on him. Next as to the 2nd explanation, the Legislature has expressly prescribed that an accused shall be deemed to have caused death, although by resorting to proper remedies and skilful treatment, the death might have been prevented. The failure to resort to proper remedies and skilful treatment in a particular case might be because such remedies are not available, or because of errors of judgment on the part of those treating the victim of occurrence, or because of negligence in the treatment of the victim. Although the Legislature was aware of these possibilities, it has expressly brought within the mischief of the section all cases of failure to resort in proper remedies and skilful treatment.
Therefore, even though, the provision is of a penal nature, effect has to be given to its plain meaning and this means that the accused was guilty under section 302, P.P.C. Even though the deceased might not have died but for negligence in the treatment of his wounds. Even though the haemolysis to the deceased might have developed on account of negligence in the treatment of the wound, this negligence amounted to not 'resorting to proper remedies and skilful treatment within the meaning of 2nd explanation of section 299, P.P.C."
33. The above-quoted judgment clearly shows that even negligence is n ground to take a case outside the pale of section 299, P.P.C. In the circumstances' of the case, Dr. Zia-ud-Din Zaidi P.W.2 had also stated that gangrene had developed which had necessitated the amputation of the leg. It was also opined by the doctor that death had occurred due to the pulmonary embolism and septicemia which was the result of injury No,2. In the opinion of the doctor injury No,2 was sufficient to cause such complication which could result into the death (Injury No,2 was mentioned as injury No,1 in the medico-legal report).
34. Adverting to the question that the fire had only been shot on the left knee joint, and not on the vital part of the body of the deceased, we are of the view that there is no evidence on the record to show that the fire was aimed on the left knee joint of the deceased. The defense witnesses were not examined on this question. In any case the deceased would not have stood still to receive the fire- arm injury. In our view the moment the trigger is pulled, the intention becomes manifest.
Furthermore, assumption that the fire-arm injury on the left knee could not be fatal is totally erroneous, and this question would always rest upon the facts and circumstances of each case.
Fire in the instant case was shot from a very close range which speaks for itself.
35. It will be advantageous at this stage to reproduce the passage from the Legal Medicine Pathology and Toxicology by Consoles and others. The learned author in the 2nd edition of the book at page 441 observed as under:- "The most serious injury occurs when a bullet completely or incompletely severs a femoral artery, or femoral vein, or one of the larger bran( hes producing an external hemorrhage which may cause death in a few minutes to several hours. Occasionally a tow of these cases are saved by the prompt application of a tourniquet around the thigh above the site of the injury or by prompt ligation of the bleeding vessel... In one case a bullet shattered the lower end of the femur in such a way that one of the sharp bone fragments lacerated the femoral artery; the immediate hemorrhage was controlled by a gauze pack, but 72 days later, the artery ruptured and the victim died of a secondary hemorrhage.
' A bland thrombosis may be produced in a femoral vein or artery as the result of a bullet injury of the vessel wall.... A thrombosis of the femoral vein may follow a slowing of the venous circulation in that thigh referable to local conditions produced by the injury or to general circulatory disability following the systemic effects of the trauma; a fatal pulmonary embolism may occur as the end result of a lesion of this type."
36. At this stage again a passage from the book Short Practice of Surgery 11th Edn. By Hamilton Bailey and Mcnell Love's will be advantageous to reproduce:- "Moist gangrene occurs when venous as well as arterial obstruction occurs, or when the artery is suddenly occluded, as by a legature or, embolus: Infection and putrefaction usually follow, and the affected part becomes swollen, discoloured."
37. Thus placing reliance upon the judgment of the Supreme Court and the interpretation of section 299 and its exceptions 1 and 2, we are of the view, that the appellants are guilty for the commission of offence under section 302, P.P.C. And not under section 304, Part II as held by the learned Additional Sessions Judge. Accordingly, the state appeal and the revision petition of the complainant must succeed. Resultantly, we set aside the conviction of the appellants under section 304, Part II, P.P.C. And instead we convict them under section 302/34, P.P.C.
38. After anxious considerations, we are of the view, that this is not a case for imposing The capital punishment. Accordingly, we direct that the appellants in this appeal and the respondents in the State appeal and in the revision petition shall now undergo life imprisonment. Sentence of fine under section 302/34, P.P.C. And the award of compensation will be the same as ordered by the learned trial Court under section 304, Part 11/34, P.P.C. Similarly, the conviction and sentences of all the appellants under section 323 read with section 34, P.P.C. Are also maintained. We must further observe here that the conviction and the sentences of the appellants under section 324/34, P.P.C.
For the injuries caused to Muhammad Sadiq injured cannot be sustained as the injured witness was not produced having been won over. It is thus obvious that had he appeared, he would not have supported the prosecution case about the injuries on his person. Therefore, placing reliance upon the judgment of the Supreme Court of Pakistan reported as Dost Muhammad Khan v. Fateh Khan 1986 SCMR 1707, we set aside, the conviction of the appellants under section 324/34, P.P.C.
For the injuries caused to Muhammad Sadiq.
39. The appellants are on bail. They shall be re-arrested, and taken into custody to serve out their sentences.