ABDUL HAYEE KURESHI, J.----On the conclusion of hearing of this appeal we had passed a short order altering the conviction of the appellant from one under section 302, P. P. C. To one under section 326, P. P. C. And sentenced him to six years' R. I. I now proceed to give reasons for the same.
2. The appellant was tried for an offence under section 302, P. P. C. By an Additional, Sessions Judge, Karachi for having caused the death of one Ramzan by giving him knife blows on 17-5-1969 at 12- 05 a.m. Outside Taj Mahal Cinema, Karachi. He was convicted under section 302, P. P. C. And sentenced to death. The appellant filed an appeal which has been argued by Mr. Nooruddin Sarki, Advocate and the State has been represent--ed before us by the Assistant Advocate-General. The case has also been referred to this Court under section 374, Cr. P. C. For confirmation of the sentence of death passed on the appellant.
3. Briefly stated the facts of the case are that appellant Bashir and deceased Ramzan lived in a building known as Steamer Building situated near Eid Gab, Karachi. They used to work together and the evidence disclosed that the deceased had obtained a loan of about Rs. 100 from the appellant and had given his watch as pledge. It seems that this transaction of loan led to a quarrel between the deceased and the appellant and the deceased obtained his watch on payment of the loan amount. Thereafter the relations between the deceased and the appellant had become incordial and the appellant had threatened the deceased.
4. On 16-5-1969 the deceased had gone to see a picture in company of Sher Muhammad (P. W. 6) in the late show at Taj Mahal Cinema. After witnessing the show deceased P. W. Sher Muhammad came out of the Cinema and at that time the appellant was standing outside the Cinema on the footpath. Seeing the deceased, the appellant caught hold of him and gavel him knife blows. One injury was given on the front of chest and the other on the back of chest. In the meanwhile Sardar (P. W. 9) also came up and wanted to save deceased by separating him from the appellant who had caught hold of him and in such attempt Sardar also received an injury with knife on his right arm. The appellant after causing the injuries ran away.
5. P. W. Sardar went to the Civil Hospital where he was examined and treated for his injury whereas the deceased walked up to a shop where P. W. Mustdqeem (P. W. 7) was sitting and the deceased fell down in front of that shop The evidence discloses that this shop is at a distance of 150 paces from the Cinema. P. W. Mustaqeem went up to the deceased and the latter asked him to call Shaffi, the brother of the deceased. Shaffi and Mustaqeem then removed deceased Ramzan to the Civil Hospital. At the Civil Hospital deceased was examined by Dr. Alimul Haq (Exh. 8) and in the meantime Dr. Ashfaq Ahmed informed the police, about the arrival I. P. Anwarullah (P. W. 5) received a telephone call at Eid Gah Police Station but knowing that the place of incident was within the jurisdiction of Nabi Bux Police Station, the Police Officer informed A. S. I. Mahmood Ahmed (P. W. 10) of Nabi Bux Police Station about the incident. The latter Police Officer after making an entry in the Station Diary (Exh. 25) to the effect of the information received by him proceeded to Civil. Hospital. At the Hospital lie sought permission of the Medical Officer to record the statement of deceased Ramzan and t where after he recorded the said statement which has been produced on record as Exh.
27. This statement was subsequently incorporated in the section 154, Cr. P. C. Book as Exh.
28. The statement reads as follows :- "I am residing on the above address. In this building a person by name Bashir also resides. I was friendly with him. Some money of Bashir was due against me, on account of give and take. On this account Bashir had taken wrist watch from me about three months back. There was dispute between us over this. I gave Rs. 150 to Bashir and got my watch back from him. But Bashir stopped talking with me, thus became my enemy. While on way he had given me threats several times that he would not spare me and would kill me. Today I went to Taj Mahal Cinema with my neighbour Sher Muhammad to see the picture. We both of us after seeing Sahalee picture came out of the house at 12-05 hours when I saw Bashir standing outside underneath the tree at the footpath of Taj Mahal Cinema with open knife in his right hand. After seeing me coming out he rushed towards me.
I attempted to save myself, bat he (Bashir) caught hold of my collar by left hand. And by saying "Today you can't go away safe" he assaulted me with the knife which was in his right hand, the knife struck on the chest left side, another blow struck me on left side upper back behind the chest. My both injuries started bleeding. In the meanwhile a boy from the Cinema by name Sardar Muhammad attempted to catch hold of Bashir. Leaving me Bashir assaulted him with knife. I ran towards my house. Mustaqeem met me on the way, he brought me to the hospital. This incident besides Sher Muhammad and Sardar Muhammad was also seen by many other persons who had come out of the Cinema house."
6. S. H. O. Agha Sharif (P. W. 11) who was incharge of Nabi Bux Police Station came to know about the case and proceeded to the scene of occurrence and prepared a mashirnama of the same (Exh. 18) in the presence of P. Ws. Mushtaqeem and Sher Muhammad. This Police Officer also examined witnesses Mushtaqeem and Sardar Muhammad. The Police Officer searched for the accused but could not arrest him. However, P. I. Afzal (P. W. 4) of New Karachi Police Out-Post arrested the appellant on 17-5-1969 at 8 p.m. From a Hotel near some Bus Stop. After completion of investigation the appellant was sent up to Court to stand trial for offence under section 307, P. P. C.
But on 6-6-1969 the deceased died in the Hospital and therefore a supplementary report was submitted by the police Officer to Court for converting the charge from one under section 307, P. P.
C. To one under section 302, P. P. C. After the death of the inquest was held on his dead body and the cause of death was ascertained from Dr. Ashraf Ahmad and subsequently Dr. Muhammad Umar Khan (Exh. 4) held the pest-mortem on the dead body of the deceased
7. I may also state that when the deceased had been taken to the Hospital on the date of the assault he had disclosed to Haji Muhammad Ishaque (P. W. 8) that the appellant Bashir had stabbed him.
8. At the trial the prosecution examined Sher Muhammad and Sardar as eye-witnesses of the incident. Sher Muhammad was the person who bad accompanied the appellant to the Cinema whereas Sardar was the person who on seeing the appellant causing injuries to the deceased had tried to rescue the deceased and had received an injury. In addition the prosecution examined Mustaqeem, in front of whose shop the appellant had fallen down and Haji Muhammad Ishaque the person to whom the deceased had originally stated that appellant Bashir had stabbed him.
Besides the above evidence the prosecution examined A. S. 1. Mahmood Ahmed who had recorded the F. I. R. At the instance of the deceased, which report by reason of the death of deceased is being used as dying declaration under section 32(1), Evidence Act. The remaining witnesses were the Police Officers namely P. I. Afzal Ahmad, S. I. P. Anwarullah and S. H. O. Agha Sharif who were connected with the investigation of the case. In this case the prosecution had examined three doctors namely Dr. Muhammad Umar Khan (Exh. 4), Dr. Ashfaq Hussain (Exh. 6) and Dr. Alimul Haq (Exh. 8). The first of these doctors had held post-mortem on tile dead body of the deceased, the second of them had declared the cause of death of the deceased and the last had examined the deceased and injured Sardar A.I.
The appellant led no defence but in his statement he denied to have caused injuries to deceased Ramzan. He however stated that deceased Ramzan was living in the same building namely Steamer Building where the appellant himself was residing and he stared that he had no quarrel with the deceased. He further stated that the deceased had young sisters and they used to smile at him and seek his help in pulling out buckets of water from the well and this was not liked by Ramzan deceased. He stated that Sher Muhammad was a police witness whereas Sardar is also a "cooked-up" witness. He admitted his arrest by S. I. P. Afzal Ahmad and stated that at the time of his arrest he was in a hotel and he was smoking charas. In the Committal Court he had stated that Sher Muhammad belongs to Delhi and is his enemy since the time that Sher Muhammad and the appellant were in Delhi. The appellant also denied that P. W. Sardar had received any injury.
9. Coming to the ocular evidence in this case there are two witnesses namely Sher Muhammad and Sardar. The evidence of Sher Muhammad is to the effect that on the date of incident he had gone along--with the deceased to witness a picture. After seeing the picture he came out alongwith the deceased and saw the appellant standing on the footpath. The appellant at once caught hold of the deceased by his throat but before the deceased could be rescued by the people who were present the appellant succeeded in causing two knife injuries to him. He has also stated that one kathiawari attempted to rescue the deceased and he too received injuries.
Although witness Sher Muhammad has not named the kathiawari, the circumstances of the case clearly show that this was P. W. Sardar. P. W. Sardar has given his case as marwari. This witness has stated that after receiving injuries the appellant ran away and was being followed by two persons but as the facts clearly show that these two persons could not succeed in apprehending the appellant on the spot so their identity is also not known. This witness was cross-examined and nothing substantial has transpired in his cross-examination. It appears that an attempt was made to show that he was a partner of the appellant in charas business but suggestions in cross- examination have been denied by the witness. I have not been able to understand as to what was the actual significance of such cross-examina--petition. The only other matter on which this witness has been cross-examined is as to whether he had come out of the Cinema Hall by the main entrance or the side entrance through the lane. He has stated that both the deceased and he came out from the main gate. I have no hesitation in believing this witness.
10. The other eye-witness Sardar is a thoroughly disinterested person and his evidence gets corroboration by the fact that he was injured by the appellant when he tried to rescue the deceased. This witness has stated that he did not know the deceased or the appellant prior to the incident. He was confronted with a statement made by him before the police which statement was to the effect that he knew both the appellant and the deceased. Such a statement according to this witness was made by him due to mistake and I am of the view that this may be product of a mistake. Nothing else has transpired in the cross-examination of this witness.
The learned Advocate for the appellant has attempted to argue that this witness did not receive any injury and the argument was sought to be built up on the basis of a statement in the evidence of A.
1. I. Mahmood Ahmed to the effect that when the latter had gone to the Hospital after receiving telephone message he did not meet Sardar in the Hospital. In that context I may refer to the evidence of Dr. Alimul Haq, who has clearly stated that he examined Sardar A.I at 12-45 a.m. On 17- 5-1969. There is nothing to indicate that this Medical Officer would give false evidence on that point and if A. S. I. Mahmood Ahmed was not able to contact Sardar A.I at the Civil Hospital the reason may well be that Sardaz A.I might have left after getting the injury treated which according to the medical evidence was only an incised wound on the back of left forearm 1'' x --'' and skin deep.
11. Moreover, the F. I. R., which is now the dying declaration clearly mentions the name of Sardar A.I although he has not been referred to as Sardar A.I but Sardar Muhammad. In fact this dying declaration states that Sardar Muhammad attempted to catch hold of the appellant and the appel--lant then assaulted him.
Regard being had to such state of evidence on the record, I believe that Sardar A.I was present at the time of commission of this offence.
12. Besides the evidence of the two eye-witnesses there is a dying declaration. This dying declaration has been deposed to by A. S. I. Mahmood Ahmed. The injuries on the person of the deceased were not of a nature as might have incapacitated him from making a statement or as might have made him unconscious. Moreover, the dying declaration is fairly detailed and gives all the circumstances relating to this transaction. In cross-examination nothing has been brought out to show that the dying declaration is not a genuine document. This daying declaration is in turn fully supported by the established facts and circumstances of the case including the medical evidence. I have absolutely no reason to doubt the authenticity or truth of this dying declaration. .
13. Besides, the deceased also disclosed to Haji Muhammad Ishaque (P. W. 8) that he had been caused these injuries by the appellant. Curious--ly enough Haji Muhammad Ishaque stated in his cross-examination that he did not remember if the deceased told him in the Hospital that the appel--lant had injured him although in his examination-in-chief he had clearly stated that the deceased had informed him as such. In spite of that the Advocate appearing for the appellant in the Sessions Court confronted the witness with his statement in the Committal Court and got an extract from the evidence exhibited. This extract reads as follows:--- "He told me that Bashir accused person in Court had inflicted knife injuries on him."
I have not been able to understand why this question was at all asked. Be that as it may, this witness both in the Committal Court and the Sessions Court had stated that the deceased gave him the name of the appellant as assailant. However, even if the evidence of this witness is excluded from consideration it will not in any manner reduce the value of the prosecution evidence.
14. Besides there is the evidence of motive and on that point there is just a denial by the appellant.
The motive as alleged may well be true, because the evidence discloses that both the appellant and the deceased lived in the same building and worked at the same place.
15. Looking to all the circumstances of the case I am fully convinced that the appellant did cause injuries to the deceased.
16. The main contention of the learned Advocate for the appellant was that on the state of medical evidence the appellant could not be held guilty of an offence under section 302, P. P. C. The contention is that the injuries were not sufficient to cause death and further that the medical evidence did not conclusively establish that the deceased died as a result of the injuries suffered by him.
17. The deceased was first examined by Dr. Muhammad Alimul Haq. Casualty Medical Officer. He was examined within about 15 minutes of the assault and was found to be having the following injuries:-----
(1) Incised wound front of left side chest 1'' below nipple 1'' x --'' and suspected to be cavity deep.
(2) Incised wound on back of lower left side chest 1'' x --'' and suspected to be cavity deep.
This Medical Officer has stated that the nature of both of these injuries was kept reserved. This would indicate that at the initial stage and at the time of first examination the Medical Officer did not consider the injuries to be dangerous to life. Although the injuries were received by the deceased on 17-5-1969, he died on 6-6-1969 viz. After 20 days. The Medical Office has stated in his evidence that the deceased did due to respiratory failure caused by the chest injuries. For stating respiratory failure as the cause of death this Medial Officer relied on a certificate given by Dr. Aziz who was not examined as he had left for South Africa.
18. After the police came to know about the death of the deceased a request was made to Dr. Ashfaq Ahmed (Exh. 6), Resident Medical Officer of the Civil Hospital asking about the cause of death. Dr. Ashfaq Ahmed wrote as follows :- "Cause of death as given by Dr. Aziz of Chest Ward is acute respiratory failure due to Uraemia."
19. Post-mortem was held on the dead body by Dr. Muhammad Umar Khan (Exh. 4). This doctor found the following injuries on the person of the deceased :-
(1) Healed scar of incised wound On left side chest 1' long extended by operation from 6th inter costal space to the back curved below the scapular angle 2" lateral to mid-line and 15'' long, few stitched below axilla left in situ and a drainage tube was also left and few stitches had gone, septic near drainage tube.
(2) Septic wound on left side chest 6' below posterior axillary line 1'' x --''. This was of incised wound which had gone septic.
(3) Left paramedion incision partly healed, stitches were left in situ and a drainage tube was also left (operated same day after seeing coffee ground vomit that is that was a wound of operation.)
Dr. Muhammad Umar Khan further stated that in his opinion the cause of death was acute respiratory failure due to Uraemia, mild peritonitis, pericarditis and pleurisy with an effusion and anaemia secondary to D stab wound on chest. He further stated that external injury No. 1 as stated above could cause a fatal issue in the ordinary course of human life.
20. As far as the evidence of Dr. Alimul Haq is concerned, I would straightaway say that his statement to the effect that respiratory failure was caused by chest injuries is based on the certificate of Dr. Aziz. This certificate has been produced through Dr. Ashfaq Ahmed and the same stated that the deceased died of respiratory failure due to Uraemia. Like--wise of the five causes of death as spoken of by Dr. Muhammad Umar Khan the first is mentioned as respiratory failure due to Uraemia. The evidence of Dr. Alimul Haq, therefore, besides not being based on personal E knowledge is clearly contradicted by the evidence of the two other doctors who have stated that respiratory failure was caused not on account of chest injury but on account of Uraemia is a state of body when the waste material of the human body does not get drained on account of failure of urinary system. This would indicate that the respiratory failure was caused on account of non- function or mal-function of the kidneys. Dr. Muhammad Umar Khan has stated that both the kidneys of the deceased were enlarged, pale and waxy looking. He has further stated that on section the calyces were found congested. This would show that the most significant cause of the death of deceased was Uraemia produced by non-- function or mal-function of the kidneys.
Moreover, the injury received by the deceased on the front of his chest was only 1' below the left nipple. Dr. Muhammad Umar Khan states that peritonitis was- also a cause of the death of the deceased. I fail to understand how the injury which landed I' below the nipple could possibly result in paritonitis. Furthermore Dr. Muhammad Umar Khan found two drainage tubes in the body of the deceased. He also found that the wounds of the deceased had become septic. The first injury was originally certified by Mr. Alimul Haq to be 1-- '' long but at the time of post-mortem the deceased was found to have a 15'' long injury. Not merely that but stiches of the operation had gone septic near the drainage tube. The second injury according to Dr. Alimul Haq was only 1'' in length but at the time of post-mortem this injury was found to be septic. The third injury found on the Dead body at the time of post-mortem was a wound of operation.
21. Comparing the initial injuries on the deceased at the time of his examination by Dr. Alimul Haq with the injuries found on the dead body by Dr. Muhammad Umar Khan, I have no hesitation in holding that al considerable amount of confusion exists on the record in regard to the cause of the death of the deceased. In fact even Dr. Mohd. Umar Khan has not definitely stated that the deceased died on account of the injuries that received. He stated that the deceased among other reasons died of anaemia as secondary to the stab wound on the chest. All that Dr. Muhammad Umar Khan could say was that injury No. 1 on the body of the deceased could cause a fatal issue try the ordinary course of human life. Injury No. 1 referred to by Dr. Muhammad Umar Khan the injury found by him at the time of post-mortem. The description of this injury when compared with the description of the original injury, found by Dr. Alimul Haq presents a vast difference.
22. Furthermore there is no indication on the record as to what was the length of the knife used by the appellant. Besides, the prosecution has not produced the treatment chart or the operation notes. In fact the deceased was operated, but no Medical Officer concerned with the ante mortem operation had been examined, Under these circumstances I cannot hold than the deceased died of the injuries received by him at the hands of the appellant.
23. In cases of murder the prosecution has to prove affirmatively and beyond any doubt that the deceased died of the injuries that he had received at the hands of the accused. In the case of Said Amin v. The State (PLD 1959 Lah. 451) a Division Bench dealt with the question of death. In that case the deceased died of haemolysis and the learned Judges came to the conclusion that haemolysis was not the direct or even the proximate result of the injuries received by the deceased and therefore the learned Judges observed that being not certain that death of the deceased was due to the act committed by the appellant, the conviction under section 302, P. P. C. Was set aside.
24. In cases of murder the prosecution is under bounden duty to establish that the injuries caused to the deceased had if not directly, at least proximately resulted in his death. In the present case the issue is confused: Operation notes and treatment chart have not been produced. Even the Surgeon who operated the deceased has not been examined. According to two Medical Officers the deceased died due to Uraemia. There is no evidence that the initial assault on the deceased had damaged his kidney. The original injuries could have caused damage only to such organs as are contained in the thorasic cage. Kidneys are located beyond abdominal cavity. This cavity is separated from the thorasic cage by diaphragm. Neither the initial medical report nor the post- mortem examination showed any damage to the diaphragm. Under these circumstances it is not safe to conclude that the deceased died on account of injuries caused to him by the appellant.
25. For all these reasons, the conviction of the appellant under section 302, P. P. C. Is set-aside. The sentence of death is not confirmed. However, since the appellant did cause injuries to the deceased in the chest region, he is convicted under section 326, P. P. C. The sentence of six years R.
I. Will meet the ends of justice.
DORAB PATEL, J.------I agree.