ALI NAWAZ CHAWHAN, J.--This judgment shall dispose of Murder Reference No,253 of 1995, Criminal Appeal No,483 of 1995 and Criminal Revision No,359 of 1995 as all these arise from the judgment given by Mr. Abdul Qayyum Raja, learned Additional Sessions Judge, Sargodha, dated 30-7-1995.
Whereby, he convicted the appellants under section 302 of the Pakistan Penal Code, and sentenced them to death. They were also burdened with compensation under section 544-A of the Cr.P.C. Against a sum of Rs,20,000 payable to the heirs of the deceased. In default of payment of compensation, the amount was to be recovered as arrears of land revenue in case the death sentence was carried out, otherwise they were to suffer 6 months' R.I. Each in default.
2. The matter arises on account of F.I.R. No,141 of 31-5-1994 under section 302 read with section 34 of the Pakistan Penal Code, which was, registered at Police Station Jhal Chakian, District Sargodha.
The deceased in this case is Ghulam Akbar.
3. The occurrence relates to 30-5-1994, whereas the F.I.R. Was lodged on the next day. According to the F.I.R., the complainant lived at Chak No,109 North close to a crossing (Chowk), where Dost Muhammad (accused), also resident of the same village, has a Welding and Tyre Repairing Shop, and Ulfat Hussain (accused) has an agency of selling oil. That both the accused would play their tape-recorders in their shops in a loud tone. This was disliked by his son Ghulam Akbar. Who had asked them to restrain from playing the tape-recorders in such a high pitch as the residences were close by. This was not liked by the accused and this is said to be the motive of the occurrence. That at 12 noon, on the day of the occurrence (30-5-1994), Dost Muhammad quarrelled with Ghulam Akbar (aged 25/26 years) in his shop, where Ulfat Hussain was also present. Both of them held Ghulam Akbar with Jappha and fell him on the ground. Dost Muhammad took the nozzle of the air- pump and held it on the anus of Ghulam Akbar, thus injecting air inside his body. That Ghulam Akbar raised alarm. This attracted Shafaqat Hussain, Umardaraz, Aziz Khan, P.Ws. To the shop of Dost Muhammad. On their arrival, both of them ran away. The stomach of Ghulam Akbar got inflated. He was initially taken to a local hospital of their Chak for First Aid and was latter removed to the hospital. It was alleged that both Dost Muhammad and Ulfat Hussain (accused) because of premeditation had inflated the body of Ghulam Akbar. Who at the time of lodging of the F.I.R. Was admitted in the hospital in a precarious condition.
4. The F.I.R. Was registered under section 324/34, P.P.C. When Ghulam Akbar died on 31-5-1994, the offence was altered to section 302 read with section 34 of he Pakistan Penal Code.
5. Dr. Farhat Iqbal (P.W.5) had examined Ghulam Akbar at about 2-40 p.m. On 31-5-1994. The injuries described by him were as follows:- "(1) No visible mark of violence was present on the body except of small tear at 12'0 Clock position on anal sphincter.
(2) There was a history of air filling through anus by the electric meter air-pump.
(3) Abdomen was distended, bowl-sound absent, pulse very weak. B.P. Not recordable. Patient was conscious but irritate." Exh. PB is the carbon copy of the M.L.R. Prepared by him.
6. Subsequently, Surgeon Latif Chaudhry of the D.H.Q. Hospital, Sargodha, conducted the laparotomy on the patient.
7. After the death of Ghulam Akbar, Dr. Malik Alam Khan conducted the post-mortem examination.
He made the following observations:-- "I found the following injuries on the dead body:--INJURIES:
(i) A small tear at 12'O Clock level on anal sphincter.
(ii) A surgical stitcked wound 2 c.m. On front of abdomen on mid line starting from above ambilcus up to upper margin of pubic hair.
(iii) A surgical drain wound 1 c.m. X 1 c.m. On right illiac fossa.
(iv) A surgical clostomy wound 4 c.m. X 4 c.m. On right side of abdomen 8 c.m. Above wound No,3.
(v) A surgical drain would 1 c.m. X 1/2 c.m. On left illiac fossa. On opening the abdomen under line sub cutaneous muscles and tissues, peritonium of wound numbers 2, 3 and 5 were found stitched in layers." From wound No,4 in large gut was found cut and coming out of the wound and the said gut was found stitched with muscles and the inner side of the skin of the said area (clostomy had been done). On opening the abdomen, all the intestines small and large were bruised, rectum was found stitched end to end which was bruised. Paritonium was congested and a stitched at the site of the wound. Diaphram was conjested.
Stomach was empty and congested. Pancreas was congested. Small intestines were empty and bruised (echymosed). Large intestines were empty. Rectum from end to end stitched and was empty. On large gut, clostomy had been done. Liver was congested, and so were the spleen and kidneys. Bladder was empty. In my opinion, cause of death in this case was due to air filling through anal canal due to internal pressure of this air in gut, which caused internal haemorrhage to blood vessels supply to this area of large gut and rectum was raptured, so this air pressure caused haemorrhage, shock and death which damage was sufficient to cause death in ordinary course of nature. Probable time that elapsed between injuries and death was about 24 hours while that between death and post-mortem examination was about 7 hours."
8. Exh. PE is the copy of the post-mortem examination and Exh.PE/1 reflects the injuries pictorially.
9. The material witness who appeared to support the prosecution version was the complainant Muhammad Aslam. He supported the story of the prosecution with respect to the occurrence and also the motive part. He was attracted to the place of occurrence because of the alarm raised by his son Ghulam Akbar. Shafaqat Hussain (P.W.2) was also attracted. He went to the shop of the accused. He saw Akbar deceased lying on the ground, while Ulfat accused was holding him by locking his arm against his neck. He then saw Dost Muhammad filling air through the anus of Ghulam Akbar with the help of the pipe attached to the air-pump. That on seeing the witnesses coming, the accused made good their escape.
10. Shafaqat Hussain (P.W.2) is an eye-witness, who corroborated the statement of the complainant with respect to the occurrence. He is related to Muhammad Aslam complainant who is married to his paternal aunt and thus he is also related to the deceased. He identified the dead body of Ghulam Akbar.
11. Muhammad Akram (P.W.3) is a recovery witness of the air-pump tank (P-1) and its rubber pipe and nozzle which were taken into possession vide memo. Exh.PB, attested by him and Muhammad Amir, P.W.
12. Muhammad Saleem (P.W.4) had prepared the site plan of the place of occurrence, which is Exh.PC and its copy is Exh.PC/1, on the pointation of the police and the witnesses.
13. Liaqat Ali (P.W.7) had escorted the dead body for purposes of postmortem examination.
14. Muhammad Latif, Inspector (P.W.8) recorded the F.I.R. Exh.PA. Thereafter, he went to the District Hospital, Sargodha, where Ghulam Akbar was admitted for treatment. He enquired from the Medical Officer whether Ghulam Akbar was fit to make a statement. He got the verbal reply in the negative. He then inspected the spot. He prepared the rough site plan Exh.PF and scribed his marginal notes on it. He took into possession the air tank with its nozzle (P-1), vide memo. Exh.PB, in presence of the recovery witnesses aforementioned. He recorded the statements of the P.Ws. When he returned to the hospital, he found there Ghulam Akbar had expired. He then prepared the injury statement, Exh.PG and inquest report, Exh.PH, in respect of the dead body of Ghulam Akbar and sent the dead body for postmortem examination. He got prepared the site plan. The accused were arrested on 11-6-1995 as they were not available earlier. He later challaned the accused.
15. In their statements under section 342 of the Cr.P.C. The accused denied the motive part of the occurrence. However, their case was one of denial as according to them, the P.Ws. Had appeared against them on account of enmity. They did not produce defence nor offered themselves for examination under section 340(2) of the Cr.P.C. Dost Muhammad produced his Birth Certificate, Exh.DB showing his date of birth as 28-11-1976.
16. According to the learned counsel appearing on behalf of the appellants, the prosecution has not been able to establish any motive nor any previous enmity and at the most this could be said to be a case of a rash act on the part of the appellants and nothing beyond. That inherently the case does not reflect any intention to cause the death of Ghulam Akbar or to cause him harm which may result in his death. That, therefore, the act of he appellants was not of Qatl-e-Amd.
17. Muhammad Akram (P.W.3) who is a recovery witness when cross-examined, stated:-- "When the air-pump was taken into possession, it was said that in a joke scuffle over the sweet meet demand, the air got filled in the anus of the deceased."
18. Reference was also made to the following portions of the statement of Inspector Muhammad Latif (P.W.8), which reads as follows:-- "It is correct that on my first visit to the place of occurrence a version was put up before me that the motive stated by the complainant in the F.I.R. Was false, that there was no enmity between the parties, that the deceased and the accused were friends and the occurrence had resulted accidentally between friends over the demand of sweet meet from the deceased for the birth of his son.
It is correct that there was delay of about 16 hours in the registration of the case. I have checked up and found that there was no record of the arrival of the injured in the hospital of Chak No,104/NB or of his being referred in Sargodha Hospital. I did not collect the operation notes nor do I know where the deceased was operated upon; whether in Sadiq Hospital or in D.H.Q. Hospital. I did not examine Dr. Muhammad Latif."
19. According to the learned defence counsel, the act had taken place mistakenly, without any intention or knowledge about the consequences. In this connection, relevant excerpt from the statement of complainant during cross-examination has been referred to, which reads as follows:- - "It is incorrect that during a friendly scuffle, the nozzle of air tank was brought near the back of the deceased when in the meantime, a small apprentice boy accidentally opened the air in the nozzle from the tank and thus the deceased got inflated with the air in that friendly joke. It is correct that the accused took up the plea in the above manner during the investigation of this case. It is correct that throughout the investigation of this case none excepting myself; Shafaqat Hussain and Aziz Khan supported the prosecution case before the police as eye-witnesses. Shafaqat P.W. Is a nephew of my wife."
20. It was also argued that the mishap may have been further facilitated by the laparotomy and had the Investigating Officer collected the operation notes, a definite conclusion could have been reached in this connection. Reference was also made to the cross-examination of the complainant Muhammad Aslam (P.W.1) and to the following excerpt from his statement:-- "I was not present when the deceased was operated upon and therefore, unable to say if the deceased was ever operated upon during his lifetime or if so, when. Till today, I have not learnt if the deceased was taken to Sadiq Hospital, Sargodha. (private clinic Sargodha)."
21. Both the complainant and Shafaqat Hussain (P.W.1 and P.W.2) had stated that they were not in the knowledge as to what may have transpired between the deceased and the accused shortly before the occurrence. It was further stated that there was no enmity inter se the parties and this is also evident from the following excerpt of the statement of Muhammad Aslam (P.W.1):-- "It is correct that when the deceased was summoned from his house, his mother was not present because she had gone to a different village in connection with the betrothal of one Mubasher. It is correct that father's name of said Mubasher is Ijaz and he is paternal uncle of Ulfat Hussain accused. It is correct that till the time of occurrence, we had intimate relations with the family of Ulfat Hussain."
22. We agree with the learned counsel for the appellants that the motive story suggesting enmity between the deceased and the appellant was not cogently established. This is an unusual case.
Such-like occurrences are rare. Whether common village persons running small businesses like inflating and repairing tyres and selling oil in a village Bazar could be burdened with the knowledge about the consequence of the act which they were committing ultimately resulting in the death of the victim, is really one for deep consideration. The facts of the case do not suggest any premeditation or sharing of common intention for causing death of Ghulam Akbar. What may have transpired a short while before this unfortunate episode, has not been brought on the file and possibly one can assume that there may have been an exchange of jokes, on account of which the appellants resorted to the act of inflating the stomatch of the deceased.
23. The probability is that they may not be having knowledge that their such an act may risk the life of the deceased. The probability is also there that this act may have been done in jest or mistakenly. Therefore, we feel that the ingredients of intention and knowledge as envisaged under section 300 of the Pakistan Penal Code, are missing in this case.
24. In which case, this case is one of either recklessness or of a negligent act. Recklessness is the conscious taking of an unjustifiable risk. Whereas, negligence is the inadvertent taking of an unjustifiable risk. If a person was aware of the risk and decided to take it, he was reckless. If he was unaware of the risk but ought to have been aware of it, he was negligent.
25. In the case of Cunningham (1957) 2 QB 396, (1957) 2 All ER 412, the facts were that the accused tore a gas meter from the wall of the cellar of an unoccupied house to steal the money in it. He left the gas gushing out. It seeped into a neighbouring house and was inhaled by a person whose life was endangered. The accused was convicted under section 23 of the Persons' Act, 1861, for maliciously administering a noxious thing so as to endanger life. It was observed that "malicious" meant simply "wicked", and the conviction of the accused was quashed. The Court of Criminal Appeal in the U.K., quoted with approval the principle first propounded by Kenny in 1902, by observing:-- "... .... In any statutory definition of a crime 'malice' must be taken not in the old vague sense of 'wickedness' in general, but as requiring either (i) an actual intention to do the particular kind of harm that in fact was done, or (ii) recklessness as to whether such harm should occur or not (i,e, the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it). It is neither limited to, nor does it indeed require, any ill will towards the person injured. The Court reiterated: 'In our opinion, the word 'maliciously' in a statutory crime postulates foresight of consequence."
26. Cunningham was not guilty unless he knew, when he broke off the gas meter, or left the broken pipe with the gas gushing out, that it might be inhaled by someone. In cases requiring 'malice' it is not sufficient that if an accused had stopped to think, it would have been obvious to him that there was a risk. He must actually know of the existence of the risk and deliberately take it.
27. In a series of cases, of which, in the U.K., the latest is Parmenter, (1991) 4 All ER 698 at page 706, convictions of malicious wounding have been quashed because the judge, in directing the jury, took the words of Diplock LJ, "should have foreseen", out of their context in Mowatt, (1968) QB 421 at page 426, thus leading the jury to think that it is enough that the accused ought to have foreseen. It is not. To be malicious, the accused must actually foresee some harm and the fact that he ought to have foreseen is, at best, some evidence that he did foresee.
28. In a general sense, both negligence and recklessness are same species. However, while rashness is acting in the hope that no mischievous consequences will ensure though aware of the likelihood of such consequence, negligence is acting without the awareness that harmful or mischievous consequences will follow.
29. Black's Law Dictionary while quoting the case of Blackburn v. Colvin, 191 Kan. 239, 380 P.2d 432, 437, defines recklessness as follows:-- "Rashness; heedlessness; wanton conduct. The state of mind accompanying an act, which either pays no regard to its probably or possibly injurious consequences, or which, though foreseeing such consequences, persists in spite of such knowledge. Recklessness is a stronger term than mere or ordinary negligence, and to be reckless, the conduct must be such as to evidence disregard of or indifference to consequences, under circumstances involving danger to life or safety of others, although no harm was intended."
30. Acts of rashness and negligence have other dimensions as well. The accused was a homoeopath. He administered 24 drops of stramonium and Dhatura to a patient suffering from goitre, without studying the effect of Dhatura and the patient died. The accused was found guilty under section 304-A. A Hakim, without any knowledge of penicillin injection, gave procaine penicillin injection to the deceased. He was held guilty under this section. (Dr. Khusaldas Pammandas v. The State of Madhya Pradesh, AIR 1960 Madhya Pradesh 50).
31. In the case of Sukaro Kobiraj, ILR 14 Calcutta 566 the accused had cut out the piles of a person with an ordinary knife, and, from profuse bleeding, the person died. It was held to be a rash and negligent act.
32. Reasonable foresight is, therefore, the criteria for determining whether the act was rash or negligent.
33. The amended Pakistan Code defines Qatl-e-Khata in section 318, as follows:-- "Whoever, without any intention to cause the death of or cause harm to a person, causes death of such person, either by mistake of act or by mistake of fact, is said to commit Qatl-e-Khata." And prescribes the punishment in section 319 in the following words:-- "Whoever commits Qatl-e-Khata, shall be liable to Diyat. Provided that, where Qatl-e-Khata is committed by any rash or negligent act, other than imprisonment of either description for a term which may extend to five years as Ta'zir."
34. Section 34 of the Pakistan Penal Code is as much applicable to sharing of knowledge as it is applicable to the sharing of intention (Inayat v.) The State PLD 1961 (W.P.) Lahore 195.
35. Keeping in view the circumstances of this case and the background of the appellants and the act that they performed, we feel that they had committed the offence of Qatl-e-Khata. We convict them accordingly and sentence them to punishment for Qatl-e-Khata as prescribed in section 319 of the Pakistan Penal Code, to five years as Ta'zir in addition to payment of Diyat, for which we fix a maximum amount at Rs,2,80,000 (rupees two lac and eighty thousand) which is to be shared by both of them equally, otherwise they shall not be released. The Sessions Judge, Sargodha shall ensure the payment of the same to the legal heirs of the deceased.
36. The Criminal Appeal is disposed of accordingly. We return the Reference by not confirming the death sentence. While we do not find any justification for any further enhancement of the amount of compensation which is the subject-matter of,this Criminal Revision and dismiss the same.