' FAZAL KARIM, J.---This will dispose of Criminal Appeal No,167 of 1992 by the complainant Qurban Hussain (the appellant) and Jail Petition No,110 of 1992 by the convict Atta Muhammad alias Arroo.
2. Atta Muhammad alias Arroo (he will be described as the convict) was tried by the learned Sessions Judge, Sergodha for the murder of Mukhtar Hussain deceased and was convicted by his judgment dated 12-2-1989 under section 302 of the P.P.C. And sentenced to life imprisonment and fine. The amount of fine, if recovered, was directed to be paid as compensation to the heirs of Mukhtar Hussain deceased. On appeal, a learned Judge of the Lahore High Court, Lahore by his judgment dated 23-2-1991 set aside the convict's conviction and sentence under section 302 of the P.P.C. And convicted him under section 304, Part I of the P.P.C. And sentenced him to 10 years' R.I.
And fine. He too directed that the amount of fine, if recovered, would be paid to the heirs of the deceased man.
3. The incident resulting in the death of Mukhtar Hussain occurred at about 12-00 noon on 3-2-1988 and was reported to the police by Qurban Hussain appellant at 4-30 p.m. On the same day. The prosecution case was that the deceased had obtained State land on lease; that land was situate near the house of the convict. The latter would dig earth from the land and the deceased man had admonished him for his act. On that account the convict had felt insulted. On the day of occurrence, the deceased man accompanied by his - brother ()urban Hussain appellant was on his way to his house from the bus-stop Shahpur, when near Government Girls Primary School, the convict pulled a razor from his pocket challenged Mukhtar Hussain and gave him injuries on his thigh and calf. The deceased man fell and then the convict hit him on the small finger of the right hand. The incident was witnessed by Qurban Hussain (P.W.7), Ghulam Murtaza (P.W.8) and one Abu Talib who was not called as a witness. On seeing them coming, the convict made good his escape.
The deceased man was carried immediately to the Shahpur Hospital where he was attended to at 12-30 noon by Dr. Malik Muhammad Khan (P.W.12). He found four injuries on his person namely an incised wound on right thigh lateral and middle part, 15 cm x 6 cm x bone deep; an incised would right leg upper most part lateral side 2 cm below right knee, its dimension being 8 cm x 4 cm x bone deep; an incised wound on right thigh, back and lowest part 6 cm x 2 cm x muscle deep; an incised wound, right little finger 1-1/2 cm x 1 cm x muscle deep. The injuries were kept under observation; they had been caused with a sharp-edged weapon and were fresh. It appears that the deceased man remained admitted in the Shahpur Hospital till 4-2-1988 when the doctor referred him to the District Hospital, Sargodha, Dr. Malik Muhammad Khan said that the infection of injury No,1 had already started" when he referred him to Civil Hospital Sargodha. It appears further that the deceased man remained admitted in Civil Hospital, Sargodha for two days when he was referred .To Mayo Hospital, Lahore. There he died on 8-2-1988. The doctor under whose treatment the deceased had remained in Civil Hospital, Sargodha was not called as prosecution witness. Dr. Shahid Latif (P.W.9) of the K.E. Medical College, Lahore performed the autopsy on the dead body on 8-2-1988. He noticed the same injuries as have been noticed above. In his opinion death was due to infection "resulting into gas gangrene and septicemia" which was sufficient to cause death in the ordinary course of nature.
4. The convict was arrested on 4-2-1988; he led to the recovery of bloodstained razor P.2.
5. The prosecution case rested primarily upon the testimony of Qurban Hussain and Ghulam Murtaza P.Ws. And the dying statement of the deceased man first recorded by Abdur Rahman, ASI (P.W.10) and then by Malik Abdul Qadir, M.I.C. On 7-2-1988. The learned trial Judge believed this evidence and held that the offence proved to have been committed by the convict fell under section 302 of the P.P.C. He found also that the deceased man had given abuses to the convict a few days before the occurrence; keeping that fact in view and that the injury was on a non-vital part of the, body, the learned trial Judge thought that it was not a case of the extreme penalty of death.
6. The learned Judge in the High Court also held that the testimony of eye-witnesses inspired confidence; that testimony, so held the learned Judge, found support from Exh.PR made by the deceased man to the A.S.I. And his dying declaration Exh.PG recorded by the Magistrate. Having so found, the learned Judge proceeded to determine the question "whether the appellant can be held liable of having committed premeditated and intentional murder; or had he committed an offence of lesser gravity". In determining that question, the learned Judge noticed that "the parties were not out-stretched enemies of each other"; that "the dispute that arose was due to lifting of earth by the appellant"; that the convict though armed with a razor had "neither caused, nor attempted to cause any injury on the vital part of the body of the deceased"; that the injury, which proved fatal, was on the thigh. The incident did not appear to the learned Judge "to have occurred due to premeditation". In his view, therefore, the offence committed by the convict fell under Exception 4 of section 300, P.P.C. It was in this way that the learned Judge convicted the convict under section 304, Part I, P.P.C.
7. Leave to appeal was granted to Qurban Hussain to consider whether the learned Single Judge erred in law in treating the case as one falling under Exception 4 of section 300, P.P.C. When there were no injuries on the accused/respondent nor any evidence to show that any grappling or sudden fight had taken place nor any suggestion was put to that effect on behalf of the respondent to any of the prosecution witnesses". On the other hand the prayer of the convict in Jail Petition No,110 of 1992 is that the conviction and sentence be set aside and he be acquitted.
8. We have heard learned counsel for Qurban Hussain appellant and learned counsel appearing for the convict; we have also heard learned counsel for the State.
9. We agree with the learned Courts below that Qurban Hussain and Ghulam Murtaza had seen the occurrence taking place and that it was the convict Atta Muhammad who had caused the injuries with a razer to Mukhtar Hussain deceased. Learned counsel for the convict called our attention to the opinion of Dr. Shahid Latif namely that "death was due to infection in injury No,1, resulting into gas gangrene and septicemia, which was sufficient to cause death in the ordinary course of nature". In his view as the death was not the direct result of the injury but due to an intervening cause namely infection, gas gangrene and septicemia, the offence committed by Atta Muhammad fell neither under section 302, nor under section 304 of the P.P.C. The offence, so argued learned counsel for the convict, was one under section 324 of the P.P.C. Learned counsel for the appellant Qurban Hussain, on the other hand, contended that the learned trial Court was right in convicting Atta Muhammad under section 302 of the P.P.C., in the opinion of the learned counsel for the State, the offence committed was one under section 326 of the P.P.C. For his contention, learned counsel for the appellant relied upon Syed Tajammal Hussain v. Nasar Mehdi and another PLD 1976 SC 377.
10. We agree with the learned counsel for Qurban Hussain appellant that there was no basis in fact or law, to support the finding of the learned Judge in the High Court that the convict's case fell to be governed by Exception 4 of section 300 of the P.P.C. Which applies where culpable was committed "without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner". The prosecution case was that the convict had come armed with a razor, had challenged the deceased man on account of the previous incident, and hit him thrice with the razor. In other words the attack was premeditated. But even if there was no premeditation, there was absolutely no evidence of a fight or a sudden quarrel. At the same time we are also unable to accept the contention that the convict's criminal liability fell to be dealt with under section 324 or 326 of the P.P.C.
11. It is convenient to first deal with the question of causation, that is whether the bodily injuries caused by the convict had caused the deceased man's death. As observed above, learned counsel for the convict relied upon the opinion of Dr. Shahid Latif that the cause of death was "infection in injury No,1 resulting in gas gangrene and septicemia". Learned counsel for the appellant referred to Explanation 11 to section 299, P.P.C. And argued that the opinion of the doctor did not take the case out of section 302, P.P.C. That Explanation provides: "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".
12. The contention of the learned counsel for the convict assumes that the infection resulting in gas gangrene and septicemia was something independent of the convict's act. There is no basis whatever for that assumption; nor was there any evidence that that was caused by medical negligence. I am here tempted to refer to a recent case decided by the Court of Appeal of England, namely "R.v. Cheshire" (1991) 3 All ER 670, which, in the words of commentator (See 1992 Law Quarterly Review 24) "refines the law governing this troublesome topic" (causation in homicide). In that case, Mr. Cheshire had been convicted of the murder of Mr. Jeffrey, Cheshire had shot Jeffrey.
As part of his ensuing hospital treatment for the wounds, Jeffrey underwent a tracheotomy operation. As rare but not unknown consequence, his windpipe became constricted. This should have been detected and remedied by the doctors, but was not. Jeffrey died of the resultant asphyxiation. The question was whether the necessary causal link was present between Cheshire's original wounding of Jeffrey and Jeffrey's ultimate death. After examining the relevant principles, the Court of Appeal upheld Cheshire's conviction.
13. The learned Commentator has stated the ratio decidendi of that case, which I respectfully adopt, as follows: "Once medical mistreatment can be seen as having a causative role in a death at all, a view has to be taken between two possible analysis. One possibility is to regard the mistreatment and the wound as cumulative, or "multiple," causes of the death: in which case the doctors and the assailant would each be liable to the extent, if any, of their own fault element. The other possibility is to regard the mistreatment as a' novus actus interveniens, discharging the assailant from any responsibility for the death, whatever the extent of his fault. Beldam, L.J.'s test for deciding between these two possibilities was that the two causes would be regarded as cumulative unless the mistreatment was 'so independent of (the assailant's) acts, and in itself so potent in causing death, that the jury regard the contribution made by his acts as insignificant.
' It was held by Beldam, L.J that-- ...... ...What we think does emerge from this and the other cases is that when the victim of a criminal attack is treated for wounds or injuries by doctors or other medical staff attempting to repair the harm done, it will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the accused that it could be regarded in law as the cause of the victim's death to the exclusion of the accused's acts."
15. This statement of the law generally accords with our own views on the subject and we respectfully adopt it. We would, therefore, hold that it was a case of culpable homicide; we repel the contention that the facts attracted either section 324 or 326, P.P.C.
16. The next question is whether it was a case of culpable homicide amounting to murder and, therefore, fell under section 302, P.P.C., or it was a case of culpable homicide not amounting to murder? If the answer be that it was culpable homicide not amounting to murder, then did it fall under Part I or Part II of section 304, P.P.C.?
17. From the guidance to be gained from decided cases and we shall be content to refer to two of them namely Ammanuel Bahadur Joseph v. Paul Jackson 1981 SCM R 663 and Munawar Hussain v.
The State 1983 SCM R 1165, we are of the view that that the facts of the case attracted the application of section 304, Part II of the P.P.C. In Ammanuel Bahadur Jospeh v. Paul Jackson, the injury was an incised wound on the right upper back lateral to the lumbar region; the injury was caused with a knife and the stab had penetrated the kidney and had gone into the peritoneum which was sufficient to cause death in the ordinary course of nature. It was held that the knife blow was struck on the part of the body popularly not regarded as vulnerable such as head, heart, chest or abdomen" and that the case was covered by Part II of section 304, P.P.C. Munawar Hussain's case appears to be nearer to the facts of this case; there, the weapon used was a dagger and the seat of injury was thigh; the injury had cut left femoral vessels. Death was due to shock and haemorrhage as a result of injury to the main blood vessel and was sufficient in the ordinary course of nature to cause death. Yet, it was held that the offence fell under section 304, Part II, P.P.C.
18. The facts of this case show and show clearly that the convict had selected the thigh and the leg of the deceased man to hit him. Even when he had fallen and lay at his mercy, all that he did was to injure his finger. We do not, therefore, think that the convict caused the injuries with an intention to kill or to cause such bodily injury as was likely to cause death. We are, however, perfectly clear in our mind that in acting as he did, the convict must have had the knowledge that the injury that he was causing was likely to cause death. In Syed Tajammal Hussain v. Naser Mehdi and another, too, the injury was on the thigh, but what distinguishes this case from that case is the important fact that the injury there was caused with a fire shot and there was no evidence that the shot was aimed at the thigh. It was, therefore, held that the accused had the intention to cause death or of causing such bodily injury as was likely to cause death.
19. For these reasons we partly accept Criminal Appeal No,167 of 1992 and convert the convict's conviction from one under section 304, Part I to section 304, Part II of P.P.C. We convert Jail Petition No,110 of 1992 of the convict into an appeal and partly accept it by converting his conviction as stated above. We would, however, maintain the sentence, for in the circumstances of the case we do not think that there is any warrant for interfering with it. It will however, be treated as one under section 304, Part II, P.P.C.
20. The learned Judge in the High Court directed that the convict "shall also be given the benefit of the provisions of section 382-B, Cr.P.C.". By this, we understand him to mean that the period during which the convict remained detained in custody during the trial shall be counted towards his sentence. We H direct that that period shall be counted towards his sentence under section 304, Part II, P.P.C. Also.
21. With this modification, both Criminal Appeal No,167 of 192 and Jail Petition No,110 of 1992 are dismissed.