1968 PLP 1368 (SCMR)

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 3rd January 1966, in Criminal Appeal No. 759 of 1964). -- Ss. 302 & 326‑Deceased stabbed in abdomen with knife‑Medical evidence not clear whether death caused by peritonitis resulting from wound‑Sentence, held, rightly altered by High Court from one under S. 302 to one under S. 326, P. P. C. Major Mufti Nazar Muhammad, Advocate" Supreme Court instructed by Ijaz Ali, Attorney for the State. JUDGMENT MUHAMMAD YAQUB ALI, J.‑This appeal by special leave of the Court is directed against the order of a Division Bench of the High Court of West Pakistan at Lahore dated the 3rd January 1966, altering on appeal the conviction of Kajeerullah, respondent from section 302, P. P. C. to section 326, P: P. C. and in lieu of the sentence of death imposed by the trial Judge awarding to him a sentence of 7 years' rigorous imprisonment. Leave to appeal was granted to examine the correctness of the finding by the High Court that the offence committed by the respondent in inflicting the fatal blow on Juma Gul, deceased, with a knife in the abdomen, was merely one of grievous hurt with a sharp weapon. It was observed: "A stab in the stomach with a knife is one of the commonest and quickest ways of despatching a person whom one intends to kill. Peritonitis is most frequently results from rupture of the intestines, and except in rare cases, results in death. Here there was no cut in the intestines, but that is not to be ascribed to careful application of the weapon by the assailant. Peritonitis is resulted without such rupture. Therefore, it was plain that the conviction under section 302, P. P. C. by the trial Court was correct." On examining the record we find more than one lacuna in the medical evidence to bring home to Kajeerullah, respondent, the assailant of Juma Gul, deceased, the charge of murder under section 302, P. P. C. The said respondent attacked Juma Gul, deceased, on the 2nd of June 1963, at about 4‑30 p.m. with a knife causing him two injuries one on the right thigh and the other in the abdomen. Dr. Ghulam Haider Shah, Medical Officer, Police Surgeons Office, who first attended to the deceased described the injuries as follows :‑ (1) An incised wound 3/4" x ? " x depth not probed on the interior lower of the left side of abdomen. Corresponding part of shirt was cut. (2) An incised wound 3/4" x ?" x 1" on the lateral upper part of right thigh corresponding part of shelwar was cut". As the condition of Juma Gul was serious Dr. Ghulam Haider Shah referred him to the Mayo Hospital where a doctor whose name does not appear on the record operated upon him and stitched both the wounds. Twenty‑one days later Juma Gul died in Mayo Hospital of peritonitis. Dr. Naseeb R. Awan who performed the autopsy found only injury on the deceased viz. "a stabbed wound 2" x ??? on the left side of the abdomen 4" from umbo." Peritoneum was adherent with the interior abdominal wall and with all the small and large intestines. Small intestines were adherent with the large intestines. Death in the opinion of the Doctor was due to peritonitis with adhesions which could be the result of the injury No.

1. In cross‑examination at the inquiry stage Dr. Naseeb R. Awan stated as follows : Q.‑Did you see the bed chart and' the history of the case before giving your opinion about the cause of the death of the deceased ? A.‑We get a summary from the ward and do not go through the bed chart for the other details. I received the medico‑legal report (copy Exh. P. M.) and the history of the deceased when I requested the police through Exh. P. N. I have not been able to see the history of the case on the file of the case in Court. I also received inquest report Exh. P. H. along with the other police papers before I started the autopsy. The deceased was suffering from this disease roughly since about a fortnight or so. Peritonitis means inflamation of the peritoneum. I presume the deceased was being treated properly in the Mayo Hospital. I do not agree with the suggestion that peritonitis is a remote cause of death and that it (peritonitis adhesion) arises out of non‑treatment or bad treatment. I did not mention in the post‑mortem examina?tion report that the peritonitis could be the result of knife . injury to the deceased although I did so on subsequent police query. The cause of death was very clear and so I did not mention this fact in the post‑mortem examination report." During the trial Dr. Naseeb R. Awan added : "My reasons for this opinion are derived from the medico?legal report Exh. P. M. and operation notes which I had seen at that time of the post‑mortem examination. I inspected the operation notes at that time and returned them to the police' after the post‑mortem examination. I gave the report Exh. P. K. when the operation notes were before me. When I recorded the report Exh. P. L./A the operation notes were not with me and then I opined that injury No. 1 could be the cause of the death of Juma Gul. When I made my report Exh. P. L./A the post‑mortem report and the medico‑legal report were produced before me. In Exh. P. L./A. I said by the words : "could be" I meant the both ways that is to say, `could be or could not be' ". As seen the operation notes and the clinical history of the deceased were not made available by the prosecution during the trial and whatever the worth of the opinion by Dr. Naseeb R. Awan that peritonitis "could be the result of the injury No. 1" was watered down during the trial by the admission that "I meant the both ways that is to say could be or could not be". In this state of evidence it could not be safely found that peritonitis was caused by the abdominal injury inflicted on the deceased by the respondent. The learned Judges in the High Court were, therefore, justified in altering the conviction of the respondent to section 326, P. P. C. and no valid ground is made to appear for interference by this Court. The appeal is dismissed. Appeal dismissed.