P L D 1994 Lahore 442 (PLP)

AUSAF ALI KHAN, J.‑‑‑This judgment shall dispose of Murder Reference No. 422 of 1992 and Criminal Appeal No. 176 of 1992 as both of :hem have arisen out of one and the same judgment.

2. Khuda Bakhsh and Abdul Karim stood trial for the offences 302/34 and under section 337‑F(i), P.P.C. for the murder of Khadim Hussain and injuring Nazir Ahmad and Karim Bakhsh P.Ws. The learned Additional sessions Judge, Multan vide judgment dated the 29th of June, 1992 convicted both the accused persons under section 302, P.P.C. Qatl‑i‑amd as amended by Qisas and Diyat Ordinance, 1990 and awarded the punishment of death as Qisas. They were also convicted under section 337‑F(i), P.P.C. and awarded he sentence of one year R.I. each as Ta'zir with fine of Rs.5,000 as Kaman.

3. The occurrence had taken place on the 13th of February, 1991 at 3/4 p.m. in Village Tibbi Syedan at a distance of 18 kilometres from the Police Ration Jalalpur. Pirwala, District Multan. Nazir Ahmad complainant alongwith us maternal uncle Khadim Hussain (deceased) and others were in the village o attend the marriage of their relative Muhammad Sharif,s daughter. Barat ,arrived at 3/4 p.m. Barat was stopped on the outer door of the residence of the father of the marrying girl for showing fake resistance as per custom prevalent Between the tribes of the spouses. Therefore, the persons of the bride resisted he Barat by Chhapas. One of the Chhapas, however, hit the head of Allah Dad .and, a landlord and Barati who took it ill and an insult by a menial. He, therefore, left the place to teach a lesson. After the marriage function was over t about 5‑30 p.m. the complainant along with his brother Karim Bakhsh P.N,V.) Khadirn Hussain (deceased) and his son Yasin was coming back home and had hardly crossed the tubewell of Lal near the metalled road that they were surprised by Khuda Bakhsh appellant armed with hatchet and Abdul :grim appellant carrying Sota. They were raising Lalkaras, exclaiming that Khadim Hussain be taught lesson for insulting Allah Dad. Khuda Bakhsh appellant gave hatchet blow from its wrong side and Abdul Karim appellant dealt Sota blow, both hitting the head of Khadim Hussain who fell down and ‑received more injuries from the assailants on his back. When Karim Bakhsh and the complainant tried to intervene they also received injuries from them. :Khuda Bakhsh appellant caused the injuries to the complainant on his leg, shoulder and back by wrong side of hatchet. Karim Bakhsh appellant gave stick injuries to Abdul Karim on his left wrist and back of the chest. Thereafter the appellants fled away brandishing the weapons. Khadim Hussain who was unconscious by that time was taken away to nearby Edhi Medical Centre on Bumb Mor. They awaited for the doctor throughout the night and decided to take him to Jhanpur Hospital but the injured expired on the way. The dead body, therefore, was brought to the spot. The complainant leaving it in care of Karim Bakhsh (P.W.) and others himself left for police station to report the matter where his statement Exh.PJ was recorded by Muhammad Amir, Inspector/S.H.O. Police Station Jalalpur Pirwala (P.W.4). It was 8‑15 then.

4. Muhammad Amir, Inspector, therefore, rushed to the place of occurrence and started usual investigation. He arrested both the appellants on the 16th of February, 1991 who produced hatchet P. 4 and Sota P. 5, both not blood‑stained, which were taken into possession vide memos. Exhs. P.L. and P.M. and were attested by Nazir Ahmad and Yasin (P.Ws.) as witnesses.

5. Dr. Abdul Hassan Farooqi (P.W.1) conducted the post‑mortem examination on the dead body of Khadim Hussain on the 14th of February, 1991 and found following injuries on his person:‑‑ (1) A contusion 9 cm x 3 cm on the right side of skull 3 cm from ear. (2) A contusion 6 cm x 3 cm on the left side and back of skull 5 cm from ear. (3) A contusion 6 cm x 3 cm on the back and outer side of left chest. (4) Abrasion 1 cm x 1/2 cm on the right testies, the colour was. red.

6. The doctor found clotted blood in the right temporal and left occipital area inside skull and also clotted blood inside the cranium around brain matter and inside brain. In the opinion of the doctor the cause of death was injuries Nos.l and

2. He further opined that all the injuries were anti‑mortem and sufficient to cause death in ordinary course of nature.

7. The same day the doctor examined Karim Bakhsh (P.W.) who had suffered two injuries in the shape of contusion and abrasion oil the back of left forearm. The witness also complained of pain on the back. Same day Nazir Ahmad (P.W.) was also examined. He had received two contusion marks on his left thigh and on the back of his chest. He too complained of pain in the back. The doctor admitted in cross‑examination that there was no fracture of skull and that the deceased was not provided medical aid after the infliction of injuries.

8. The appellants in their statements recorded under section 342, Cf.P.C. disclaimed any connection with the offence saying that there was some altercation at the arrival of Barat in which some of the participants received injuries. They also denied their relationship with Allah Dad Lang. They however, did not produce defence and also did not examine themselves under section 340, Cr.P.C

9. Believing ocular account backed up by motive, the learned trial Court found the appellants guilty of the offence of Qatl‑i‑amd and convicted and sentenced them thereunder each ‑to suffer death as Oisas and also passed on the impugned sentences under section 337‑F(i), P.P.C. for injuries to Nazir Ahmad and Karim Bakhsh (P.Ws.)

10. The prosecution case primarily rests upon ocular account with evidence on motive and receiving corroboration from medical evidence. The recoveries of weapons of offence from the appellants are inconsequential as hey were not blood‑stained.

11. The ocular account, however, is confidence inspiring. Both the eye witnesses Nazir Ahmad (P.W.3) and Karim Bakhsh (P.W.5), though related to the deceased were natural witnesses in that hey were coming back home after attending marriage function with the deceased at the time of attack by the appellants. They had unanimously deposed that Khuda Bakhsh appellant gave a hatchet blow from its reverse side on the head of the deceased, whereas Abdul Karim appellant dealt a Sota blow which also fell on the head. After the deceased had fallen down, both the appellants gave one blow each by their weapons and when the witnesses tried to intervene, they also received injuries by the arms of the appellants that is from wrong side of hatchet of Khuda Bakhsh causing injuries on arm, shoulder and thigh to Nazir Ahmad (P.W.) and Karim Bakhsh (P.W.) received stick blow of Abdul Karim on his arm and back. Both the witnesses are injured and therefore, their presence at the place of occurrence cannot be doubted. And what further enhances the evidentiary value of the witnesses is that none of the eye‑witnesses had any motive to falsely implicate the appellants. No suggestion was put to either of them as to they having any animus, grudge or ill‑will against the appellants. Learned counsel for the appellants also failed to find fault with their evidence except pointing out trivial contradictions. In circumstances of the case the learned trial Court was perfectly justified in upholding the ocular version about the incident which was preceded by motive.

12. What seriously contended at the bar by the learned counsel for the appellants, however, was the nature of the offence committed by the appellants. According to the learned counsel one head injury caused to the deceased by each of the appellants from wrong side of the hatchet and Sota and two other injuries on the non‑vital part of the body of the deceased could not be categorised. as Qatl‑i‑amd under section 300, P.P.C. as intention of causing death was not there nor intention of causing bodily injury which in the ordinary course of nature was likely to cause death, particularly when the complainant party had shown palpable negligence in giving medical treatment to the deceased while alive. He further maintained that the offence was Qatl‑bis‑sabab or Oatl Shibb‑i‑amd. Contrarily learned counsel for the State would regard the offence as Qatl‑i‑amd as held by the learned trial Court.

13. We will proceed further after discussing the contention of the learned counsel that the deceased had died owing to contributory negligence by the complainant party in giving medical aid to the deceased. After the deceased had received two head injuries by Sota and reverse side of the hatchet, the deceased had developed clot inside skull and also clotted blood inside the cranium around brain matter and inside brain. It is a matter of general knowledge, that hatchet/stick blow, even without causing fracture of skull necessarily results in heamatoma which is formed within a few minutes or an hour. Heamatoma/clot results due to rupture of blood vessels below the skull. Clot if not treated properly leads to suppression of brain matter and ultimately causes death. Initial treatment is removal of clot by making Bur holes which is possible only at a big hospital. Primary treatment of removal of clot, however, in neuro surgery after opening the skull which again is very sophisticated treatment available only at those teaching hospitals which have Neuro‑Surgery Department. The complainant and others` in attendance of the injured at the relevant time were simple villagers and could not appreciate the gravity of the injuries as apparently no sharp‑edged weapon was used nor blood was coming out of the body. The witnesses had quickly taken the injured to nearby Edhi Medical Centre but since doctor was not available at that time, they preferred to wait for the doctor as the compounder had .assured them that the doctor would be soon coming. The complainant had also stated that they had no' vehicle at that time. They, therefore, had no means to transport the injured to Nishtar Hospital, Multan which was the only place is the area where clot could be removed. In the circumstances the complainant party could, not be blamed for exhibiting negligence in not having quick and sophisticated treatment. Here we may advert to Dorasmy Servai's case of Indian High Court (AIR) (31) 1944 Madras 157) wherein it was held that when an injury to the head sets up septic pneumonia which results in death, the person inflicting the blow on the head cannot be absolved from the consequences of his crime by saying that his victim died of pneumonia and not of the blow on the head. View of four celebrated Imams of Islam is also unanimous that if the victim dies as a result of injury caused by his assailant, then he would be liable to Qisas and responsible for death. (Kitab‑ul‑Fiqa, Volume V, p. 524). The appellants, therefore, cannot evade the consequences, arising of the clot which developed as direct result of head injury especially by reverse side of hatchet blow. 14. . The offence on no count can be termed as Qutls‑bis-sabab which is define section .P.C. as below:‑‑ "Whoever, without any intention to cause death of, or cause harm to, any person, does any unlawful ‑act which becomes a cause for the death of another person, is said to commit Qatl‑bis‑sabab". Illustration to the definition reads: "A unlawfully dig: pit in the thoroughfare, but without any intention . even on vital part of body is likely to cause death or is so imminently dangerous that it must in all probability cause death. Doctor had opined that there was no fracture on skull, though there was clotted blood inside skull and brain which resulted in death, but there is no evidence that the clot was formed on account of injury by Sota alone and not by hatchet blow of the co‑appellant. Abdul Karim appellant, had also not repeated the Sota blow and his other blow fell on non‑vital part of body of the victim which caused only simple injury. In circumstances the offence fell in the category of Qatl Shibh‑i‑amd. The learned trial Court had made error-full approach while assessing his guilt and nature of offence. Both the appellants cannot be said to have shared common intention as premeditation to commit the offence had not been proved and, therefore, each of the appellants is to be punished for the offence committed by him.

18. For reasons aforementioned we maintain the conviction of Khuda Bakhsh appellant under section 302, P.P.C. but do not approve the capital punishment awarded by the learned trial Court as the proof of Qatl‑i‑amd liable to Oisas as required under section 304, P.P.C. was not forthcoming. We sentence him to life imprisonment as Ta'zir under section 302(b), P.P.C. The conviction and sentence of Abdul Karim appellant is set aside. He instead is convicted under section 316, P.P.C. to imprisonment of 10 years as Ta'zir and also burden him with Diyat payable to the heirs of the deceased. Value of Diyat is given in section 323, P.P.C. He shall remain behind the bars till payment of Diyat. The .benefit of section 382‑B, Cr.P.C. shall also be admissible.

19. The conviction and sentence of fine under section 337‑F(i), P.P.C. to each of the appellants as awarded by the learned Additional Sessions Judge however, is maintained. The appeal is partly accepted in the said terms and the death sentence is not confirmed. M.BA./K‑131/L Appeal partly accepted.