P L D 1971 Peshawar 175 (PLP)

The injury was caused with a sharp‑edged weapon within duration of two hours. It appears that a minor operation was performed by the Surgical Specialist at D. I. Khan Hospital in an attempt to check the bleeding, but the operation did not succeed. On the Surgical Specialist advice on 26‑12‑1967 that the patient be referred to L. R. H. Peshawar, the patient was brought from C. H., D. I. Khan on 9‑1‑1968 and admitted in the L. R. H. Peshawar on 10‑1‑1968. Dr. Fatehullah Khan stated in cross‑examination that the treatment chart (of Mahmood‑ul‑Hassan) did not reveal any complication, and, that there was no complication except that the patient was bleeding continuously.

5. Dr. Muhammad Zahir Shah (P. W. 2), then incharge Casualty, Medical Officer L. R. H., Peshawar, admitted Mahmood ul‑Hassan injured on 10‑1‑1968 in the main Surgical Ward of which Dr. S. A. Gardezi was the Visiting Surgeon. The patient was constantly bleeding. Dr. Gardezi operated upon the patient on 16‑1‑1968. Exh. P. N./1 is the copy of the original operation note of Dr. Gardezi. It may be noted that during the days of the trial of this case Dr. Gardezi had gone abroad and therefore was not available for evidence. The original note of which Exh. P. N /I is the copy was proved by Dr. Muhammad Zahir Shah to be in the hand of Dr. Gardezi. Mahmood‑ul -Hassan expired on 3‑2‑1968, probably in the Lady Reading Hospital. No autopsy was held on the dead body. However, Dr. Muhammad Zahir Shah submitted his report (Exh. P. N.) dated 16‑4‑1968.

6. At the trial, the appellant admitted that he stabbed Mahmood‑ul‑Hassan with a small knife and not with a dagger. Explaining the charge against him, the appellant stated: "It so happened that on the day of occurrence at digar time when I went to the house of Fazal Hussain (driver) where some qawwali was performed on the occasion of marriage of Ghulam Yasin son of Malik Ramzan, there were many people sitting in the chairs including Mahmood‑ul‑Hassan, and when I was passing in front of him to occupy a vacant chair, he pressed his finger against my anus. I protested to him that it was very indecent on his part to be have like that, and then I went and occupied a vacant chair at some distance from him. About 15/20 minutes later when I got up to take water from a pitcher lying nearby and passed m front of Mahmood‑ul‑Hassan, he again behaved in the same indecent manner and pressed his finger against my anus from the back. This time I could not tolerate it as it was too much an insult, and as I happened to have a small knife in my pocket at that time, I whipped it out and gave him only one blow on the back because he had gravely provoked me and insulted me in public, on account of which I lost my self‑control. That knife was subsequently taken over from me by somebody. Soon after that Allah Dad (P. W.) arrived and on his enquiry I related to him the same story. I had no previous enmity with the deceased and nor there had been dispute over anything between us previously. It was on account of his misconduct in public which provoked me gravely." The appellant produced no evidence in defence.

7. The learned counsel for the appellant strenuously contended that the appellant inflicted a stab injury on the back of Mahmood‑ul‑Hassan deceased while he was deprived of the power of self‑control by grave and sudden provocation, and that under the circumstances of the case, the offence committed by the appellant falls under section 335, P. P. C. The argument appears to be well‑founded.

8. The ocular evidence in the case is furnished by the dying declaration (Exh. P. G) and the disinterested evidence of P. Ws. Muhammad Salim and Muhammad Amir. Imam Bakhsh an P. W. another witness was also present at the qawwali in the house of Fazal Hussain driver at the time of occurrence and on his enquiry from Mahmood‑ul‑Hassan the latter charged the appellant for stabbing him with a dagger. The prosecution has thus established that it was none else but the appellant who stabbed Mahmood‑ul‑Hassan with a dagger blow.

9. In view of the prosecution evidence and the plea of the appellant, we have only to find out what offence has been committed by the appellant. It is an admitted fact that no post‑mortem examination was performed on the dead body of Mahmood‑ul‑Hassan, though it was available for the purpose. The main purpose of post‑mortem examination is to ascertain the cause of death of a dead person. The deceased sustained only one stab injury on the right shoulder blade near the root of neck at the hands of the appellant. The prosecution has not risked any clarification from the two Doctors to show that the injury caused to the deceased was likely to cause death, or that it was sufficient in the ordinary course of nature to cause death, or that in all probability the injury was likely to cause death. In case of death from an injury, the death must be regarded as a proximate cause and not too remote a consequence of the injury. Such a death should be the direct result of the injury, or if the death is caused by some inter vening factor, that factor should itself be the direct result of B the injury, but if some other factor intervenes between the injury and the death and the death is not the direct result of the injury, it cannot be said that the injury caused the death of the deceased. In Said Amin v. The State (P L D 1959 Lah. 451) at page 456, para graph 48, it has been observed:‑ "It is, thus, apparent that each case, for its decision depends upon its own facts. If death of a person is the direct result of an act committed by another person, with the requisite intention or knowledge, or if as a result of that act something else intervenes, such as gangrene, tetanus, peritonitis etc. which is the direct result of that injury, the offender would be guilty of the offence of culpable homicide. If, however, something that intervenes between the act. complained of and the death of the injured man is not the direct result of the injury, it cannot be said that death had resulted from the doing of the act which caused the injury and, therefore, section 299 of the Pakistan Penal Code will have no application." In the present case, the note (Exh. P. N.) of Dr. Muhammad Zahir Shah mentions at the end, "After the operation the patient developed some complications. The patient remained in shock till death. Every effort was made but the patient succumbed to the above injury and expired on 3‑2‑1968". From this report, the possibility that some supervening factor developed after the operation which caused the death of Mahmood‑ul‑Hassan cannot be overruled.

10. As earlier state, the autopsy was not held upon the dead body of Mahmood‑ul‑Hass n. In Muhammad Abu Toha alias Raja v. The State (P L D 1966 Dacca 491) in similar circumstances, it was observed at page 502: "It is no doubt probable that the death might have been caused by this injury but the probability of the death having been caused by other factors could only be excluded by post- mortem examination which is lacking in the present case. The possibility of other factors being responsible for the B death, cannot be ruled out altogether in the absence of the post‑mortem examination. There is thus an element of doubt as to whether death was caused by this act of the accused, namely, the injury caused. The benefit of this doubt must go to the appellant." We have now to see whether the appellant caused the solitary wound at the shoulder back of Mahmood‑ul‑Hassan with the intention or knowledge that such injury was likely to cause death. Such an intention or knowledge is to be gathered from the evidence and circumstances of the case. The testimonies of P. Ws. Muhammad Salim and Muhammad Amir do not reveal as to what was the sudden motive for the appellant to inflict the dagger injury on the deceased. P. W. Imam Bakhsh has deposed that he enquired from Mahmood‑ul‑Hassan as to why the accused had caused him the injury, but he would not tell him the reason. Mahmood‑ul -Hassan has stated in his dying declaration that the appellant was sitting beside him on a chair, when the appellant abused him and said TERI AJAL AAI HAI he (Mahmood‑ul‑Hassan) stood up and was about to run away when the appellant stabbed him with a dagger in the back. Above all, P. W. 7 Allah Dad, Lambardar and a B. D. Member, arrived at the spot on getting information. He found the appellant standing with blood‑stained clothes in the door of the house of Fazal Hussain driver. On the witness's insistence to show him the cause why he injured Mahmood‑ul‑Hassan, the appellant told the witness that he stabbed the deceased, because the latter had fingered him (tried to press his finger in the anus of the accused). From this evidence and the circumstances of the case, it can reasonably be inferred that the deceased had fingered the appellant in the gathering at the house where qawwali was going on. The indecent act of fingering in the anus of the appellant by the c deceased in a public gathering will surely cause grave and sudden provocation to a youth so much so as to be deprived of the power of self‑control. The intention or knowledge with which an injury is caused can be presumed from various circumstances of a case. The number of injuries inflicted, the seat of the injury and the conduct of the offender are some of the important elements where from the intention or knowledge with which the injury is caused can be gathered. In the present case, the appellant caused a solitary stab injury to the deceased on his right shoulder back. A shoulder back on the body is not a vital or an vulnerable part. The appellant after the infliction of the stab injury did not pursue his attach on the deceased by other dagger blows, but went away. From these circumstances it flows that the appellant did not inflict the injury with such intention or know ledge which was likely to cause the death of the deceased. In the Dacca case referred to above, the solitary injury on the deceased was a penetrating incised wound 1 " x " x cavity situated on the left sub‑clavian region in front of the chest. Considering the injury on the person of the deceased in that case and the lack of post‑mortem examination, the learned Judges allowed the appeal of Abu Toha alias Raja to the extent that the offence under section 302, P. P. C. was modified to one under section 326, P. P. C. The learned trial Judge in para. 8 of his judgment was also convinced that the conduct of the deceased was serious enough to cause a sudden and grave provocation to the appellant. Under these circumstances, the offence committed by the appellant falls to the offence of voluntarily causing grievous hurt on grave and sudden provocation when he neither intends nor knows himself to be likely to cause grievous hurt to any person other than the deceased who gave him the provocation. Such offence falls under section 335, P. P. C.

11. In the result, therefore, the appeal is accepted to the extent that the conviction of the appellant under section 304 (I), P. P. C. is altered to a conviction under section 335, P. P. C. He is sentenced to four years' R. I. only. The fine if paid by the appellant is to be remitted to him. K. B. A. Appeal partly accepted.