' RIAZ KAYANI, J.---Mukhtar alias Mukhee and Akhtar both. Sons of Falak Sher have laid challenge to the judgment, dated 24-7-2000 passed by the Judge, Anti-Terrorism Court, Bahawalpur Division, Bahawalpur whereby both of them were convicted under section 302, P.P.C. For the murder of Muhammad Irshad, A.S.-I. Mukhtar alias Mukhee was sentenced to death and directed to pay Rs,2,00,000 by way of compensation under section 544-A, CI .P.C. To the legal heirs of the deceased according to their shares and in default of payment of compensation to further undergo six month4 S.-1. Whereas Akhtar appellant was sentenced to life imprisonment and ordered to pay compensation of Rs,50,000 to the heirs of the deceased' according to their shares and in default thereof to further undergo S.-I. For six months. Appellant Mukhtar alias Mukhee was convicted under section 353, P.P.C. And sentenced to two years' R.I. With a fine of Rs,I0,000 and in default to undergo six months' S. I .
2. The occurrence which resulted in the assault upon Irshad, A.S.-I. Took place on 18-5-2000 at 8-45 a.m. Within the precincts of Police Station Shehr Farid, situated in Mauza Shehr Farid, District Bahawalnagar. The complaint was written by Qadir Bakhsh, S.-I. At Rural Health Centre Shehr Farid on 18-5-2000 at 9-15 a.m. Which was sent to the Police Station for registration of the formal F.I.R.
3. The prosecution version succinctly described in the First Information Report, authored by Qadir Bakhsh, S.-I., is that at 8-45 a.m. He was present within the premises of Police Station Shehr Farid working in his office when all of a sudden noise made in the courtyard outside his office attracted his attention and he went out where he saw Mukhtar alias Mukhee an accused of F.I.R No,102 of 2000 registered with Police Station Shehr Farid under section 379, P.P.C. In an extremely provoked state of mind abusing in vulgar language the police officials out of whom Muhammad Irshad, A.S.- I., Akhtar Hussain, A.S.-I., Muhammad Ashiq Head Constable No,212, Muhammad Amjad Constable No,795, Abdul Ghaffar Constable No,426, Muhammad Sarwar Constable No,888 and Sadaqat Ali constable No,198 were present. Within his view Mukhtar alias Mukhee caught hold of the colar of Muhammad Irshad, A.S.-I. And started giving him fist blows on his chest as well as using his knee to give blows in his abdomen as a result of which the shirt of Muhammad Irshad, A.S.-I. Was torn from its front side. Real brother of Mukhtar alias Mukhee who was incarcerated in the lock-up was also hurling filthy abuses coaxing his brother to teach them a lesson for apprehending them. Mukhtar alias Mukhee caught hold of the index finger of right hand of Muhammad Irshad in his teeth and severely bit him. He alongwith other police officials tried to release the hand of Muhammad Irshad from the mouth of Mukhtar alias Mukhee in which they succeeded but before that Mukhtar alias Mukhee had caused immense damage by his bite on the index finger of Muhammad Irshad, A.S.-I.
The said A.S.-I. Fell to the ground and became unconscious, who was immediately removed by putting him on the cot to the hospital, but soon after his arrival he breathed his last. Mukhtar alias Mukhee in furtherance of the common intention shared by him with his brother Akhtar assaulted the officials of the police and caused injuries to Muhammad Irshad, A.S.-I.
4. Qadir Bakhsh, S.-I. After writing the complaint Exh. P.L. Sent the same to the police station through a constable for registration of the F.I.R. He thereafter, prepared the injury statement of the deceased Exh. P.G. And inquest report Exh.P.H. And handed over the dead body to the constable to be taken to the mortuary at District Headquarters Hospital, Bahawalnagar for post-mortem examination. He thereafter, left for the place of occurrence, inspected the spot, took in possession blood-stained earth vide recovery memo. Exh.P.C. Formal arrest of the appellants was made on the same day and they were locked in the Police Station. Statements of the witnesses under section 161, Cr.P.C. Were recorded and finally challan under section 173, Cr.P.C. Was submitted in the Court.
5. Medial evidence which is of utmost important in this case was given through the statements of Dr. Muhammad Afzal Saqib, Medical Superintendent, District Headquarters Hospital, Bahawalnagar who conducted the autopsy on 18-5-2000 on the dead body of Muhammad Irshad, A.S.-I. By forming a Medical Board whose other members were Dr. Amar Saeed, "Deputy District Health Officer, Bahawalnagar and Dr. Shabbir Hussain, Surgeon, District Headquarters Hospital, Bahawalnagar. The following injuries were noted:---
(1) Bite wound measuring 1 c.m. x 1-1/2 c.m. x bone deep on the dorsal surface of distal interphalangeal joint of right index finger.
(2) Bite wound measuring 1 c.m. x c.m. x bone deep on the dorsal surface of middle interphalangeal joint of right index finger.
(3) Bite wound measuring 1 c.m. x 1/2 c.m. x bone deep on the palmer surface of middle phalynx of right index finger.
' Visceras in the Thoraz were healthy and paler looking. Hyoid bone was intact. Both chambers of heart were full of blood. Whole heart was taken and sent to Bacteriologist, Lahore, Punjab for his topathicology. Major vessels were full of blood.
6. Full stomach and its contents, part of small and large gut, part of liver and part of one kidney were sent to the Chemical Examiner for detection of any poison.
7. All the injuries were ante-mortem in nature and were caused by blunt (teeth bite) weapon. Final opinion regarding .The cause of death was postponed till the receipt of report from the Chemical Examiner and Bacteriologist. Time between death and postmortem was within 8 hours. Report of the Bacteriologist, dated 21-6-2000 stated that the submitted specimen was found totally autolysed on gross so no histological sections could be taken, hence no opinion could be expressed.
8. Report of the Chemical Examiner opined that no poison was detected in the visceras.
9. In the opinion of the Board although such injuries mentioned in the injuries column are usually insufficient to cause death in the ordinary course of nature, but in this case the probable cause of death was vasovagal shock, coronary occlusion and heart block due to abovementioned injuries.
All the injuries were Ghair Jaifa Modihah.
10. In reply to the question whether the bone of the index finger from any place was fractured or nay artery has been injured, the reply was that there was breach to skin subcutaneous tissue nerve endings veins and arteries. There was no bone fracture.
11. The appellants when indicted, denied the charge, pleaded not guilty and claimed a trial.
Prosecution examined as many as 11 witnesses. Ocular testimony account was furnished by Muhammad Sarwar, Constable No,888 examined as P.W.4, Sadaqat All Constable No,198 as P.W.7, Akhtar Hussain, A.S.-I. As P.W.8 and Qadir Bakhsh, S.-1., as P.W.11 who also conducted the investigation.
12. Learned counsel for the appellants vehemently contended that the type of injuries inflicted by appellant Mukhtar on the index finger of the deceased cannot by any stretch of imagination be said to be sufficient to cause death in the ordinary course of nature and, therefore, finding returned by the trial Judge convicting the appellants for the murder of the deceased A.S.-I. Is uncountenanced in the eyes of law being violative to the provisions of Criminal Jurisprudence. It was also stated that the injuries caused were as a result of provocation by abuses hurled by the deceased A.S.-I. During the course of investigation at the appellant Mukhtar in a theft case.
Conversely learned counsel appearing for the complainant by citing few books on Medical Jurisprudence defended the conviction and sentence recorded by he trial Judge. Learned State Counsel toed the line of the counsel for the complainant.
13. We have intently heard counsel at length and have also perused the record minutely.
14. Muhammad Sarwar Constable while appearing as P.W.4 stated that Muhammad Irshad, A.S.-I.
Inquired about the theft from Mukhtar alias Mukkee and he also abused appellant Mukhtar whereupon he became provocative and made an assault on Muhammad Irshad, A.S.-I. Similar was the statement of Sadaqat Constable.
15. Mukhtar alias Mukhee when examined under section 342, Cr.P.C. Denied his participation in the crime and in reply to the question as to why the case has been brought against him, stated that he was involved falsely and was arrested for extortion and unfortunately Irshad, A.S.-I. Died at the Police Station while he was not in his uniform nor performing any official act. In order to avoid departmental inquiry, he has been falsely alleged to have given a smack at the chest or a knee- blow or even a teeth bite. He was in handcuffs when he died. He was actually apprehended and had been caught by the constables when Akhtar Hussain, A.S.-I. Was interrogating him. The other P.Ws. Were not present. He was not in a position to give a teeth bite to an independent young, strong and robust, A.S.-I. When he was under confinement and pressure of the police at the Police Station.
16. We are convinced after going through the evidence that the occurrence took place within the precincts of Police Station Shah Farid. Appellant Mukhtar was in handcuffs and after having been abused he lost his power of self-control and due to inability of using his hands, chained with the hand-cuffs, he while grappling with the said A.S.-I., caught hold of the index-finger of the A.S.-I. In his mouth and gave a hard teeth bite injuring his arteries but without causing any fracture of the bone of the index finger. Ocular testimony account furnished by P.W.4, P.W.8 and the Investigating Officer is worthy of credit and inspires confidence and we have no reason to disbelieve the same.
The most important question which has attracted our attention is focussed as to the offence which Mukhtar alias Mukhee has committed.
17. A culprit is responsible to cause the death of another when the injury caused by him is of such a nature which is the primary, proximate and immediate cause of death. The word "cause" "it directly relatable to the word "violence" which is always responsible or bringing about the death of the deceased. Violence may be caused by manifold manners like shooting, stabbing, beating, drawing, Administration of poison, choking and suffocation. The modes by no means are exhausted and there may be other kinds of violence also responsible, to cause death. However, one thing is very clear, that whatever kind of violence is practised, death must be the direct and proximate cause of injury perpetrated through violence. In legal and medical parlance the injury should be sufficient to cause death in the ordinary course of nature. In the instant case the Board of Doctors who examined the deceased were not sure of the cause of death and, therefore, they used the word "probable" to disguise the cause of death. The word "probable" has been defined as "likely", "capable of being proved".
18. Usually the post-mortem is conducted by the expert who is available at the hospital but in this case departure was made and a Board was constituted comprising of three doctors, one of them being a Surgeon and it is also in evidence that the District Magistrate, Bahawalnagar on 29-5-2000 as Chairman of the Monitoring Committee sent a letter about the case to Dr.Muhammad Afzal Saqib P.W.9 to which he replied. We have perused the letter marked 'A'; the sum and substance of which is that the copies of the injury statement and inquest report containing details of injuries sustained by Muhammad Irshad deceased were enclosed whereas the post-mortem report issued by the Medical Board was in explicit about injuries 1 and 3 and the doctor was asked that the contradictions as pointed out be clarified and forwarded to the undersigned (District Magistrate/ Chairman, Monitoring Committee, Bahawalnagar) today without fail. Keeping all the facts and circumstances in juxtaposition and deviation of the normal practice of getting the dead body examined by one doctor, on duty, we find that in the instant case extraordinary steps had been taken to get a favourable report from the doctors, couched in language declaring injuries due to teeth bite, as cause of death. It is in this perspective that the prosecution succeeded to get an opinion that the bite caused stoppage of blood flow (occlusion) to the heart. However, the Board could not throw dust in the eyes and knew it very well that the case will go for exegesis before the Courts of law and as such in the end termed the injuries to be Ghair Jaifa Mudihah.
19. The injury caused by the assailant to the victim is not only dependent on his physical act but also his intention known as mens rea in English law. Intention is a state of mind of a person with respect to another person or thing. Intention like any other fact, is not capable of being proved through direct evidence as it is not in corporeal or tangible form. It, therefore, is determinable by the overt act of the perpetrator of the crime. Conduct immediately before and at the time of occurrence and the surrounding circumstances are some facts discernible to resolve the said frame of mind of a person. Any case of hurt or violence practised by the assailant upon the victim, the part of the body, kind of weapon, amount of force used and the repetitions are some of the factors which determine the intention of a person. In the instant case part of the body was the index finger of the deceased which was given hard bite by the appellant Mukhtar resulting in rupture of skin and veins, however,, bone was not fractured. Therefore, by any stretch of imagination, it cannot be brought to fore by the prosecution that the appellant intended to cause death of the deceased by biting him on the index finger of his hand. Intention of the appellant to cause death, being a missing link essential to indict a person for the murder of another, it would be travesty of justice to pass sentence of death making him legally liable for the murder of the deceased. The appellant is at the most culpable for the consequence of his act committed which was termed by the Board as Ghair Jaifa Mudihah punishable under section 337-F(iv), P.P.C. To a maximum sentence of five years' R.I. Alongwith payment of Daman.
20. We, therefore, are convinced that the death was not direct and 'proximate cause of the injury caused by appellant Mukhtar to the deceased. We, therefore, alter his conviction from section 302, P.P.C. To section 337-(iv), P.P.C. And reduce the sentence from death to five years' R.I. With a direction to pay Daman to the heirs of the deceased and he shall be kept in continuous incarceration till the amount of Rs,5,000 is paid and the period would be treated as simple imprisonment. We maintain his conviction under section 351, P.P.C. However, both the sentences shall run concurrently and benefit of section 382-B, Cr.P.C. Would be extended. Death sentence imposed upon Mukhtar alias Mukhee is not confirmed and Murder Reference is answered in the negative.
21. Akhtar brother of Mukhtar alias Mukhee was already in police custody being interned in police lock-up. He is said to have instigated his brother. His culpability is not at all proved as no overt act or the words uttered amount to any kind of encouragement or support to enable Mukhtar to bite the deceased. Conviction and sentence of life imprisonment recorded against Akhtar is set aside by accepting his appeal and he shall be set free if not required in any other case.