JUDGMENTM. NAEEMULLAH KHAN SHERWANI, J.- The way in which this appeal arises is this. Nausher appellant along with Bashir Ahmad and Dost Muhammad was tried by learned Sessions Judge at Jhang for the murder of one Allah Ditta. By virtue of his judgment dated 7.5.1996, learned. Trial Judge found Nausher appellant guilty of the said charge, convicted him under Section 302, PPC and punished him with death as Qisas. He also directed him to pay Rs. 30,000/- to legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of Section 544-A, Cr.P.C, or in default thereof to undergo rigorous imprisonment for six months. The said learned Judge, however, acquitted Bashir Ahmad and Dost Muhammad of the charge by giving them benefit of doubt.
2. Murder Reference No. 130 of 1996 seeks confirmation of said sentence of death awarded to Nausher appellant, whereas he by filing Criminal Appeal No. 382 of 1996 called in question conviction and sentence passed against him by the said learned Judge. Maqsood Ahmad complainant preferred Criminal Appeal No. 482 of 1996 against Bashir Ahmad and Dost Muhammad praying setting aside of their acquittal. All these matters are being disposed of together through this Single Judge.
3. Occurrence of the alleged incident had taken place on 7.4.1993 in the revenue estate of Chak No. 444-, locate at a distance of 12 miles from Police Station Mochiwala, District Jhang. The said occurrence was reported by Maqsood Ahmad (P.W.8) at Adda Madhani to Abdul Salam (since dead), S.I. Of the said Police Station at 2.45 p.m., who upon dictation of the complainant reduced into writing his statement (Exh.PK) faithfully and despatched the same to the Police Station through a Constable for.Formal registration of a case against the accused. Accordingly on receipt of statement (Exh.PK/1) correctly without any addition or subtraction on his part on the same day at 3.05 p.m. Thus, by lodging the crime report, the complainant had laid a foundation for initiation of criminal proceedings against the offenders.
4.. Maqsood Ahmad (P.W.8), maker of F.I.R. (Exh.PK/1), puts the matter succinctly by stating that he is resident of Chak No. 444/JB. On 6.4.1993, he went to Dargai Shah, falling within the territorial jurisdiction of Police Station Athara Hazari in order to see -his father. On the eventful day, while coming back home, he was available at Adda Khoi. Ln the meanwhile, Muhammad Yaqoob, a resident of the village, brought his sister Mst. Naseem Hayat, in an injured condition, through a wagon and told him that a quarrel took place in the village, in which Mst. Naseem Hayat has received injuries. As Muhammad Yaqoob was near relative of the complainant, he accompanied him to Civil Hospital, Jhang in order to get Mst. Naseem Hayat medically examined and received the medico-legal report. Muhammad Yaqoob had gone to Bazaar with a view to fetch medicines and on his return he handed over him the medico-legal report. Mst. Naseem Hayat was admitted in the hospital by the doctor.
Muhammad Yaqoob told him that there is a dispute over Ihata in the village and he should go back to the village. He along with his uncle Allah Ditta, who was also available at Adda Khoi, went to the village. When they reached near the Ihata of Muhammad Yar, Safdar Hussain and Gulsher came there from then front side. The complainant and his uncle were inquiring from the about the Ihata, when Nausher appellant and Muhammad (acquitted accused) armed with 12-bore guns emerged suddenly and exhorted a Lalkara to Allah Ditta that he will be taught a lesson for not giving the Ihata, ln the meanwhile, Dost Muhammad (accused), who was standing nearby, told that Allah Ditta be killed, ln that moment, Nausher fired a shot through his gun upon Allah Ditta, which hit him on his right thigh near the navel. Upon receiving injury, Allah Ditta fell prbne and bleeding started. At the same time, Muhammad Bashir, fired through his gun upon Allah Ditta, which did not hit him. The complainant along with his companions raised commotion, which attracted a large number of people of the village. They tried to apprehend the offenders, but they levanted from the spot with their respective weapons. The complainant along with Zahoor Ahmad took Allah Ditta, in injured condition, to the hospital, where he was medically examined. After getting medico-legal report from the doctor, and leaving Zahoor Ahmad by the side of injured, the complainant went to the police station and got registered the -abovesaid case against the offenders.
5. Preceding registration of case, initially investigation into the crime in question was carried out by Abdul Sale, S.I. Who could not be produced by the prosecution due to his demise. On 4.5.1993, Amir Umar Khan Niazi, D.S.P. (P.W.12) took over the investigation and arrested Bashir Ahmad accused (since acquitted) on 16.5.1993. During the course of investigation he found Dost Muhammad accused as innocent and directed the S.H.O, to prepare challan against Nausher appellant and Bashir Ahmad. On6.6.1993, Abdul Rahim, S.I. (P.W.11) was deputed to investigate the matter. On the same- day when he along with two police officials was available at Bridge Canal Chimranwali, he received rapat (Exh.PE) regarding death of Allah Ditta through Munir Ahmad, Constable. He immediately reached Chak No. 444/JB, prepared inquest report (Exh.PI) of Allah Ditta deceased and despatched the dead-body to the mortuary for post-mortem examination under thd escort of Munir Ahmad, Constable. He then substituted Section 302, P.P.C, for Section 324, .P.P.C. On 9.6.1993, Munir Ahmad, Constable produced before him postmortem examination report. He recorded his statement and also that of Gulsher (P.W.9) and Maqsood Ahmad P.W. (not produced) under Section 161, Cr.P.C, regarding identification of the dead- body. He also sent for Muhammad Munawar Asif, Draftsman, who according to his instructions and pointation of the prosecution witnesses prepared site-plans (Exhs.PA & PA/1). Statements of all those, who joined investigation with him were recorded. Challan was prepared and submitted by him before the Court for trial of the accused in accordance with law.
6. The learned Trial Judge framed charge against the accused and put the same to them, to which they pleaded not guilty and claimed to be tried. Prosecution was then called upon to produce evidence of [ts choice against the accused to establish charge beyond any shadow of doubt.
7. The prosecution ventured to produce as many as fourteen witnesses in all. We would like to make a brief reference to the statements of afore-mentioned witnesses, which would enable us to analyze and appreciate the same.
Out of the whole lot, evidence of Dr. Musarrat Ullah Hasnain (P.W.4), Dr. Farooq Ahmad (P.W.6), Maqsood Ahmad, complainant (P.W.8), Gulsher (P.W.9), Dr. Ghulam Mustafa (P.W.13) and Dr. Shoaib Munawar (P.W.14) is of great significance.
P.W. 4-Dr. Musarrat-ul-Hasnain, was Surgeon of District Headquarters Hospital, Jhang. Allah Ditta while admitted in the hospital was referred to him for operation by Casualty Medical Officer due to gun shot injury. He examined the injured on 10.4.1993 at 1.30 a.m. At that time he was running fever and was drowsy. His abdomen was soft and according to the attendant he passed stools on the way back from Lahore. He was told so by his attendant that he was taken to Lahore and was brought back from there. He was operated upon by this witness, who found following injuries on his person:-
(1) His large intestine (caecum) was damaged along with part of small intestine (terminal illeum) and there was partial daage to right ureter. There was fracture of body of lumber vertebrae. Right hemicolostomy was done and other damaged parts were repaired.
Exh.PB is the true copy of the operation notes. According to him, Bed Head Tickets (Exh.PC/1-1 3) are of the Ward. The same were attested by his medical officer, whose handwriting was, identified by him as he had been working with him. The injured was referred to Allied Hospital, Faisalabad by him on 7.5.1993.
P.W.6-Dr. Farooq Ahmad, C.M.O, on 7.4.1 993, at 11.00 a.m. Medically examined injured Allah Ditta and found following injuries on his person:-
(1) A fire-arm wound of entrance 2 c.m. x 1 c.m. Not probed with contusion collar 3 c.m. Above the anterior superior illiac supine of the right side of the abdomen.
(2) A fire-arm wound of entrance 0.7 x 0.7 c.m. x not probed with contusion collar 1.5 c.m. Above and lateral to injury No. 1.
(3) A fire-arm wound of 0.7 x 0.5 c.m. Not probed on the anterior superior illiac supine.
(4) A fire-arm wound of entrance 1 c.m. x 0.5 c.m. x muscle deep just 1.5 c.m. Below the injury No. 3.
On pellet recovered from the wound, sealed in a bottle and handed over to the police.
All the injuries were kept under observation and were referred to Surgeon for expert opinion X-rays of abdomen was advised. Injuries were fresh in nature and caused by a fire-arm. Carbon copy of medico-legal report (Exh.PF) was prepared by him, which bears his signatures.
On 9.6.1993, this witness at 8.30 a.m., conducted autopsy upon dead-body of Allah Ditta, duly identified by Gulsher (P.W.9) and observed following injuries on his person:-
(1) An infected gangrenous wound circular in Shape 6x6 c.m. On the right hypochondrium of the abdomen.
(2) A stitched wound with stitches on the right side of abdomen 6 c.m. Below the umbilicus and just lateral to midline.
(1) Four healed scares in an area of 8 c.m. x 4 c.m. On the right side of abdomen extending to, lateral side.
(2) An infected wound circular in shape 4 c.m. x 5 c.m. On the sacral region.
Ln his opinion, injuries Nos. 1, 2 and 3, which were mentioned in MLC, dated 7.3.1993 with complication septicemia due to damage to caecam, terminal illeum and paralysis of lower limbs were sufficient to cause death in the ordinary course of nature. Due to complication of injuries, the patient was admitted in the hospital and then referred to Allied Hospital, Faisalabad, where he remained admitted for about one month till death, ln case of injuries mentioned in the post- mortem report, injuries Nos. 1 and 2 were due to Surgical procedure and injury No. 3 was healed scars of injuries mentioned in the M.L.C. Injury No. 4 was due to bed sore. All injuries were ante- mortem in nature and injuries mentioned in M.L.C.
Were caused by fire-arm. The time, which elapsed between injuries and death, was about two months and that between death and post-mortem was about twenty fours hours. Exh.PH is correct copy of post-mortem report, whereas Exh.PH/1 is pictorial diagram. Both the documents bear his signatures.Maqsood Ahmad, complainant (P.W.8) and Gulsher (P.W.9) are the witnesses of occurrence. They devoted their attention to narrate all the relevant facts pertaining to the occurrence, which were either observed by them or came to .Their knowledge, ln addition to this, Maqsood Ahmad (P.W.8) was also associated with the investigation at the time of recovery of gun 12-bore (P6), at the instance of the appellant, and he attested memo. Exh.PM prepared in this regard.
P.W. 13-Dr. Ghulam Mustafa while posted at Allied Hospital, Faisalabad admitted injured Allah Ditta in the hospital on 7.5.1993 and then he operated upon him on 12.5..199'3. His right transverse colostomy was done. He had written his operation notes. Exh.PT is attested copy of operation notes whereas Exh.PU is the photostat copy of operation notes. These documents bear his signatures.
Exh.PV is photostat copy of operation notes of colostomy of injured Allah Ditta. Exhs.PT, PU, PV and PW/1-31 were attested by P.W. 14-Dr. Shoaib Munawar.
Evidence of remaining witnesses is of formal nature, which too shall be considered by us, if need be.5. When no further evidence was required to be produced by the prosecution, learned prosecutor after tendering in evidence report of the Chemical Examiner (Exhs.PAA) and that of Serologist (Exh.PBB) declared the prosecution case close.
6. Now proceedings advanced to the next important phase of trial, which pertained to examination of the accused under Section 342, Cr.P.C. All the incriminating material was put to them to enable them to offer a handsome explanation with regard to their participation in the murder incident and to furnish their own standpoint, if any, in the matter in issue. The accused vehemently refuted the charge brought against them. They proclaimed their profound innocence in the matter. While answering, question No. 16, "why this case against you?" the appellant stated as under:- "My father was allotted ten marlas of Ahata. The complainant party wanted to take the same from us. They had filed appeal for the same, which was dismissed. They wer-e inimical towards us and they have involved us falsely in this case, ln fact the quarrel had taken place between the complainant party and some persons Joota by Caste over the Ahata and in the same the deceased was injured. The complainant party compromised with them being from same brotheri and involved us falsely in this case due to enmity with us."
They opted not to produce any evidence in defence. They declined to make statements on oath in disproof of accusations brought against them as envisaged by the relevant provisions of Section 340(2), Cr.P.C.
7. After hearing both the sides and considering totality of facts as well as circumstances revolving around this matter, the Trial Court pronounced verdict of guilt against the appellant as afore- mentioned.
8. The way in which learned counsel for the appellant in her attractive arguments to this Court has put the matter succinctly is as follows. She submits that on the strength of ocular account furnished by Maqsood Ahmad (P.W.8) and Gulsher (P.W.9), co-accused of the appellant, namely, Bashir Ahmad and Dost Muhammad, have been acquitted by the Trial Court, so it would be highly dangerous to place explicit reliance on the testimony of these witnesses. The appellant also deserves to be acquitted of the murder charge. Maqsood Ahmad (P.W.8) happens to be uncle of Allah Ditta deceased, whereas Gulsher (P.W.9) is brother of the deceased. Not a single disinterested witness has been produced by the prosecution to prove its case beyond any shadow of doubt against the appellant. She further submits that in any case, sentence was severe, lt is not a fit case in which extreme penalty of death be exacted upon the appellant because death occurred due to various complications other than the injuries, lt was also argued that death sentence as Qisas could not have been awarded to the appellant.
9. Conversely, learned counsel for the State fully supports judgment of the" Trial Court, but frankly conceded that under the peculiar circumstances of the case relating to the medical evidence, death penalty should have been avoided.
10. We have considered respective arguments of both the sides with utmost care and devotion. We have also gone through the evidence word by word by latter by letter for its appraisement. We find that presence of Maqsood Ahmad (P.W.8) and Gulsher (P.W.9) at the spot during the time of occurrence was quite natural. Name of Maqsood Ahmad finds mention in the medicolegal report of Allah Ditta, dated 7.4.1993 (Exh.PF), lt was he who received it from the doctor. Arrival of Allah Ditta in an injured condition in the hospital was at 11.00 a.m. On 7.4-.1993. This positively establishes availability of Maqsood Ahmad (P.W.8) at the spot. Both the eye-witnesses provided full particulars of the accused, and the weapon, which was carried by the appellant and the way it was deployed by him for producing injuries on the person of the deceased. They were subjected to lengthy cross- examination, but the defence failed to make any material gain out of the same. Their testimony remained unshaken. They both stood firm Jike a rock. They wholeheartedly supported the prosecution version and their statements are confidence inspiring. They had no reason to involve the appellant falsely and maliciously in this case. We are not ready to believe that they brought a false charge o>f murder against the appellant. They are wholly reliable witnesses and we readily accept their testimony. The appellant stood rightly convicted by the learned Trial Judge.
11. Now we advert to the quantum of sentence awarded to the appellant and for that reason we want to dilate upon the postmortem report. We find that peritoneum was gangrenous. About one litre of infected fluid was present in the abdominal cavity. Small intestine and large intestine were also gangrenous, ln the opinion of Dr. Farooq Ahmad (P.W.6), injuries Nos. 1, 2 and 3 mentioned in the medico-legal case No. 501/93, dated 7.4.1993" with complications of septicemia due to damage to caecum, terminal illeum and paralysis of lower limbs, were sufficient to cause death in the ordinary course of nature, ln this case, surgical intervention was there. Operation was carried out by the doctor. Occurrence of the alleged incident took place on 7.4.1993, whereas death took place on 8.6.1993, i.e,. After two months of the occurrence. Peritonitis develops because of b"bd treatment or non-treatment. Once peritonitis sets in a human body, its signs or symptoms are awfully visible.
Doctors do not face any difficulty in making a correct diagnosis of peritonitis, lt becomes bounden duty of the surgeon to open the abdomen, wash the abdominal cavity and repair the viscera. High potency antibiotics are abundantly available, which have to be administered to the patient.
Infected fluid, septicemia, and gangrene could only occur because of gross negligence on the part of the doctors, lt seems that the doctor did not care a fig for the human life. Medical evidence does not establish clearly that peritonitis septicemia and gangrene in abdominal cavity and other organs of b,ody were caused by the injuries produced by the accused. Death in this case occurred after about two months due to infection of 'wounds end development of gangrene and peritonitis.
All these complications came into being after the patient had been operated upon. Injuries alone are not the direct cause of death of Allah Ditta.
12. For all these reasons, we are inclined to show leniency in the matter of sentence awarded tc> the appellant. We have noticed that the appellant was sentenced to death as Qisas, which was not warranted under the relevant provisions of law. Accordingly he is convicted under Section 302(b), P.P.C, and sentenced to imprisonment for life instead of death. The appellant shall pay Rs.30,000/- to legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of Section 544-A, Cr.P.C, and in the event of non-payment thereof, he shall further suffer sifnple imprisonment. For six months. Benefit of Section 382-B, Cr.P.C, is, however, extended to the appellant.
13. With the above modification in the sentence of the appellant, Criminal Appeal No. 382 of 1996 is dismissed and Murder Reference is answered in the negative.
14. So far as Criminal Appeal No. 482 of 1996 filed against acquittal of Bashir Ahmad and Dost Muhammad, is concerned, none has entered appearance on behalf of the complainant to argue the same. Even otherwise, there is no material necessitating interference by this Court in the matter of acquittal, lt is accordingly dismissed.