1980 PLP 214 (SCMR)

DORAB PATEL, J.‑The first two respondents in this petition are brothers and we will refer to them as the respondents. They were tried by a learned Additional Sessions Judge, Abbottabad under section 302/34, P. P. C. for the murder of one Khaliq Dad, deceased. By his judgment dated 15‑11‑1976, the learned Additional Sessions Judge held that the prosecution had proved beyond reasonable doubt that the respondent had attacked the deceased, who had succumbed to the injuries thus inflicted on him. The injuries had been caused by kick blows, fist blows and further one of the respondents had also squeezed the testicles of the deceased. However, Dr. Junaid Akhtar, who had carried out the post‑mortem of the deceased, had said in his evidence in the Sessions Curt that although the injuries to the testicles of the deceased along with other injuries were sufficient to cause the death of the deceased, the deceased was a very sick man and in this connec tion; the doctor said "the lungs and the heart of the deceased were diseased. It is possible that even a slight pain if given to him will cause his instantaneous death." In view of this evidence the learned Additional Sessions Judge held that the case of the respondents fell "squarely within illustration (b) of section 300 of the P. P. C. In these circumstances the accused appear to have committed the offence of causing simple hurt only." Accordingly, he convicted the respondents only under section 323, P. P. C. read with section 34, P. P. C. and sentenced them to one year R. I. A fine was also imposed. The respondents did not challenge their conviction which has, therefore, become final. However, the State filed an appeal in the Peshawar High Court in which it prayed that the judgment of the Sessions Court be set aside and that the respondents be convicted for murder. As the appeal turned entirely on the medical evidence and as the learned Judges of the Peshawar High Court, who heard this appeal were of the view that there was some discrepancies in the evidence of doctor, ex abundand cautila, they examined the doctor again. The doctor clarified that the deceased suffered from epilepsy and from congestion of the chest and lungs and therefore, he stood by his opinion that the blows inflicted by the respondents had caused the death of the deceased only because he was a sick and diseased man. By their judgment dated 31‑5‑1977, the learned Judges of the High Court dismissed the State's appeal. The petitioner, who is the widow of the deceased has, therefore, filed this petition for leave. And, in support of the petition, Mr. Safdar Hussain stressed the fact that the‑respondents were the half‑brothers or the step brothers of the deceased and lived in the same Haveli as the deceased, therefore, they should have known that the deceased was a sick and diseased man, and the further submission was that in view of this knowledge the ingredients of murder had been made out by the prosecution this point was agitated in the Sessions Court also but was rejected by the Additional Sessions Judge, because of the petitioner's evidence. And, the learned Advocate‑General, who appeared on behalf of the State, drew our attention to the fact that the petitioner had denied in her evidence that her husband was a sick man. Similarly, the petitioner's daughter also emphatically repudiated in her cross- examination the suggestion that her father was suffering from any disease. As the wife and daughter of the deceased did not know that the deceased was a very sick man, the respondents could not possibly have known of the sickness of the deceased. Therefore, there is no merit in Mr. Safda Hussain's submission. Mr. Safdar Hussain's only other submission was that both the Courts had misread the medical evidence. And in order to appreciate the submission, we may explain here that the argument had reference to the statement of the doctor that the injuries inflicted on the deceased were collectively suffi cient to cause death. But in cross‑examination, the doctor stated that the deceased was a sick and diseased man if not a dying man. Now, according to learned counsel, the admissions made by the doctor in his cross‑examina tion were obliging statements, because, they were inconsistent with his state ment in his examination‑in‑chief that the injuries inflicted on the deceased were sufficient to cause death. The argument is utterly fallacious. The doctor's statement that the injuries inflicted on the deceased were responsible: for his death is in no way inconsistent with his statement that the deceased was a sick and diseased man. And, it was because the deceased was a sick and diseased man that the injuries inflicted on him proved to be fatal, therefore, no exception can be taken to the view of the two Courts that the prosecution had miserably failed. to prove the guilt of the respondents for murder. The learned Advocate‑General also very rightly opposed the petition on behalf of the State. The petition is without merit and is, therefore, dismissed. Petition dismissed.