' This revision petition has been filed to call in question order dated 15-8-1996 whereby the Trial Court summoned the accused persons (Respondents No,1 and 2) to face the trial under section 319 of the P.P.C:, instead of section 302 of the P.P.C. As desired by the petitioner/complainant.
2. Briefly stated the facts giving rise to this petition are that the petitioner filed a private complaint against Professor Dr. Saad Rana and Dr. Ghulam Safdar, respondents Nos.1 and 2, in the Court of learned Sessions Judge, Islamabad on 8-5-1996 on the allegation that they had acted with gross negligence and performed operation of Mst. Kiran Fayyaz, who died at the table of the operation theatre; that both the respondents had not taken the necessary precautions and proceeded to perform the operation with the knowledge that their act was imminently dangerous to the life of the patient; that they performed the operation on a holiday when necessary medicines and instruments were not available to cope with an emergency and thus, the accused persons were guilty of committing the offence of murder. It may be mentioned that the petitioner is husband of the maternal aunt of the deceased.
3. The Trial Court recorded the preliminary evidence produced by the complainant. The complainant appeared in support of the complaint and stated that Mst. Kiran Fayyaz, aged about 38 years, was quite healthy and had no ailment; that she was mother of one son aged about 10/11 years and desired to have more issues; that in this connection she got herself checked up at Hayat Shaheed Hospital, Peshawar; that she learnt that Professor Saad Rana, respondent No,1, a Gynaecologist was running a clinic known as "Women Clinic and Fertility Advisory Centre" at Islamabad and was an expert in the field of Laparozopic; that she got an appointment with respondent No,1 for check-up on 10-8-1995; that at about 10-00 a.m. Mst. Kiran was taken inside the Operation Theatre; that her husband Fayyaz Hussain and a lady friend Mst. Yasmin Mustafa remained outside the Operation Theatre; that Dr. Ghulam Safdar, respondent No . 2 administered anesthesia to Mst. Kiran Fayyaz and respondent No,1 performed the operation; that both the doctors knew very well that no proper arrangements were available in the clinic to meet a state of emergency; that the doctors had not obtained the requisite information from the patient; that the necessary medicines/injections were not available in the clinic; that at about 1-00 p.m. Respondent No,1 came out of the Operation Theatre and announced that the operation was successful although it was a white lie and deception because Mst. Kiran Fayyaz had died during the operation; that thereafter respondent No,1 went inside the Operation Theatre, that at that time Dr. Ghulam Safdar, respondent No,2, was trying to revive the patient's heart by pressing her chest; that after a few minutes a lady doctor came out running from the Operation Theatre, went down stairs to get an injection from the medical store, that after obtaining the injection she again went inside the Operation Theatre, that this state of affairs aroused apprehensions in the mind of Mst. Yasmin Mustafa and Fayyaz Hussain, that Mst. Yasmin Mustafa informed her husband Qazi Mustafa on telephone who told her sister, Lady Doctor Mst. Nighat Qureshi to go to the clinic of respondent No,1 to see the true state of affairs; that Lady Doctor Mst. Nighat Qureshi went inside the Operation Theatre and found that both respondents Nos.1 and 2 were trying to revive the heart of the patient by pressing her chest; that when the lady doctor felt the pulse of Mst. Kiran Fayyaz she found that she had already passed away. The complainant also brought on the record the documents Exh.P.A to Exh.P.H in support of his case. The complainant's statement was corroborated by P.W.1 Mst.
Yasmin Mustafa. P.W.2 Fayyaz Hussain and P.W.3 lady doctor Shehnaz Akhtar.
4. The petitioner strenuously urged that the impugned order is patently illegal because the Trial Court had only adverted to the aspect of intention on the part of the accused persons but omitted to consider the latter part of the definition of "Qatl-i-Amd" embodied in section 300 of the P.P.C.
Regarding knowledge of the accused that their act was so imminently dangerous that it must in all probability cause death; that the preliminary evidence; prima facie, showed that the accused persons had the necessary knowledge so as to bring their case within the ambit of the latter part of the definition of "Qatl-iAmd", therefore, the accused persons ought to have been summoned under section 302 of the P.P.C.; that the case being one under section 302 of the P.P.C. Is triable by the Sessions Judge or any other Additional Sessions Judge; that there was no justification to send it for trial to the Magistrate Section 30, Islamabad, that at one stage section 30 of the Cr.P.C. Was omitted but now it has been revived w,e,f, 13-8-2001 but the amended law has not been made applicable to Islamabad.
5. The learned Deputy Attorney-General submits that by virtue of the provisions of section 88 of the P.P.C. The accused persons were not guilty of any offence; that the complainant had earlier filed a private complaint, which was withdrawn on 8-5-1996 and then tiled the present one; that his first version in the private complaint was that the accused had committed "Qatl-iKhata" but he had now set up a case for "Qatl-i-Amd"; that the accused persons had performed the operation primarily for the benefit of the patient/ deceased without any intention to cause death. He adds that if the complainant's version that the patient had died during the operation (as mentioned in Exh.P.F) and the doctor had wrongly announced that the operation was successful then he had acted in a mala tide manner and might be held liable for the offence under section 302 of the P.P.C.
6. Learned counsel for respondent No,1 submits that respondent No,1 is a reputed Gynaeologist and had no intention to cause death as he jealously guards his reputation as a competent surgeon; that in his first complaint the complainant had himself set up the case of negligence and "Qatl-i- Khata" but subsequently came forward with a different version in the present complaint; that after proper appraisal of the evidence the Trial Court had summoned the accused under section 319/34 of the P.P.C.
7. The learned counsel for respondent No,2 submits that respondent No,2 is an Anesthetist and had properly performed his duty; that offence; if any, was committed by Dr. Saad Rana, respondent No,1, who had performed the operation; that the evidence on the record shows that the patient had died as a result of excessive bleeding due to the operation performed by respondent No,1; that the preliminary evidence does not make out any offence against respondent No,2.
8. After hearing the learned counsel for the parties and going through the impugned order, I find that the learned Sessions Judge had merely adverted to the first part of the definition of Qatl-i- Amd embodied in section 300 of the P.P.C. And failed to consider its later part, which reads as under:- " or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-i-Amd."
' The learned Sessions Judge .Ought to have taken into account the element of intention as well as knowledge coupled with the facts on the record and then passed an order to summon the accused either under section 302 or 319 of the P.P.C. The Court below had acted illegally by considering the case only with reference to the intention of the accused to cause death. Looked at from this angle, the impugned order does not appear to be proper or legal. After considering the case in the light of the later part of the definition of Qatl-i-Amd, the Court may come to any conclusion, which reasonably and legitimately flows from the evidence on the record qua the nature of offence committed by the accused/ respondents. It may be observed that if the accused are summoned to face the trial under section 302 pt. The P.P.C., and on proper appraisal of the evidence the Court finds that a minor or lesser offence is made out against the accused persons, the Court can convict them for the lesser offence as provided under section 238(2) of the Cr.P.C.
However, if the accused persons are summoned for the lesser offence then they cannot be convicted for the higher one. Therefore, it is essential, in the interest of justice, that the Trial Court should carefully determine the nature of the offence at the time of summoning of the accused persons for trial.
9. The legal question regarding the omission of section 30 of the Cr.P.C., its re introduction in the statute book (through Ordinance No,37 of 2001 dated 13-8-2001) and its effect is under consideration in the connected Writ Petition No,1027 of 2001. Therefore, I need not go into this question at this stage.
10. For the foregoing reasons, the revision petition is accepted, the impugned order dated 15-8-1996 passed by learned Sessions Judge, Islamabad is set aside and the case is remitted to him for passing a fresh order in the light of the definition of Qatl-iAmd embodied in section 300 of the P.P.C.
And the preliminary evidence brought on the record.