P L D 1966 Dacca 491 (PLP)

Iqbal was known to the witness from before. On reaching hospital he rang up the Civil Surgeon and also the father of the boy, namely, P. W. 16 Mr. Samad, whom he could not contact. lqbal also told the witness that Nurul Islam and Matin were with him and that Toha had also stabbed Nurul Islam. In cross‑examination the witness stated that he came to be acquainted with Iqbal in the steamer while coming to Dacca. P. W. 9 is Mr. Azmatali, a Muktear at the time of occurrence and a pleader at the time when he deposed in the case. He stated that he resides in Court Para and that on 20‑7‑64, he went to witness the football game. Anticipating trouble at the Traffic Point, he directed the Court Para boys by another route to their Baris. As he was returning home by the Traffic Point,, he saw two boys fighting outside the Railway Platform and ongoing to the platform, saw some boys driving away the Court Para boys to their Court Para residences. He then went home. But from near his house he saw the chasers including Toha, Mannan and others returning to the Court Station. He saw swellings on the face of Tuha. Toha, Mannan and others were saying that they would beat the Court Para boys whenever found. In cross-examination, this witness stated that there was no Maramari at the Traffic Point and he heard no abuse by the boys assembled at the Traffic Point. He also denied that he was assaulted by the Court Para boys at the Traffic Point. He also denied having abused the Court Para boys and dubbed them "women" or "girls". He also denied that Toha held him responsible for all the troubles and as a result he got him assaulted. He also denied having been assaulted by Iqbal, Matin and Nurul Islam. He further denied having hired Goondas on 21‑7‑54 and that he got Iqbal, Matin and Nurul Islam assaulted. P. W. 10 Ramjan Ali was tendered cross‑examination being declined. P. W. 11 Miron was also tendered. Iv cross‑examination this witness stated that in front of Telegraph Office, Toha declared that Azmatali Muktear was at the root of all these troubles. The witness warned Toha not to speak nonsense. The witness also heard from the Railway Station before the departure of the Dacca Mail a groaning sound‑"being killed". That was about 6‑45 or 7 p. m. The witness denied that Toha was being killed by their agents. P. W. 12 is Dr: Abul Hussain, in‑charge of Sadar Hospital, Kushtia on 21‑7‑

64. On examining Iqbal he found:‑

"(1) One incised penetrating wound 1 " x "'' x cavity with blood gushing out from the wound, in the left sub‑clavicular region just below the left collar bone‑nature of the injury is grievous. Age of the injury was about 20 minutes. Nature of the weapon used was sharp cutting, like knife." Death, according to this witness, would have been imminent if proper precaution bad not been taken. He also stated that they sent for a Magistrate who took down the statement of Iqbal which the witness attested and that Iqbal clearly made the statement although he felt difficulty. He further said that plasma was being transmitted or transfused when lqbal made the statement. The witness also stated that Nurul Islam also came to the hospital at about that time whom also he examined and found the following injuries:‑

"(1) One incised wound 1"x " muscle deep on the back of the left shoulder‑simple age 20 minutes, caused by sharp cutting weapon‑clotted blood surrounded the injury." He, however, did not notice if there was any minor injury behind the clotted blood. In cross‑examination, he admitted that the Civil Surgeon ligatured the severed artery of Iqbal. According to him, it was done to stop the blood to save the patient. P. W. 13 Mr. A. A. Choudhury, is the Civil Surgeon, Kushtia. He also attended upon Iqbal and on arrival found the patient extremely anaemic and in extreme shock. Pulse was imperceptible, respiration hurried‑cold, clammy, sweat all over the body. lie found the size of the injury as that given by P. W. 12 Dr. Abul Hussain. There was severe haemorrhage and on examination all the sub‑clavian vessel were found by him severed which were secured and ligatured. There was swelling about 6" x 6" into the sub‑axillary region and the swelling was due to accumulation of blood. The witness stated that as the case was a precarious one, Principal, Dacca Medical College Hospital was contacted over phone and pursuant thereto Dr. Nowab Ali from Dacca was seat by special plane and the case was evacuated to Dacca by the same plane. The witness stated that the patient would have died within a few minutes if no medical help was given hen and there and that the injury was sufficient in the ordinary course of nature to cause death: In cross‑examination he stated that for ligation minor operations were necessary and that they had no sufficient blood at their disposal and so the specialist thought that the patient should be removed to Dacca.. P. W. 14 Mr. Noor, is the Magistrate, First Class who recorded the dying declaration of lqbal Exh.

4. He stated that 1qbal could not sign the dying declaration as his left hand was injured and as saline was being given to the right hand and that Iqbal stated that Nurul Islam arid Matin saw him injured by Toha. P. W. 15 is Mr. Rashid, Clinical Assistant, Surgical Unit No. 4, Dacca Medical College, an M.B., B.S. He has stated that on 21‑7‑64, Iqbal was admitted into the Medical College at 7‑30 p.m. as a stabbing case on the shoulder. The case was tackled by some doctors at Kushtia who found rupture on the left axillary artery and ligatured it. On examination he found the condition of the patient poor; pulse was imperceptible; respiration 48 per minute, temperature was 1026‑F; blood pressure 9060 M. M. hg. There was no external haemorrhage at that time. Blood transfusion and other measures were resorted to, but there was no improvement and the patient was taken to operation theatre the next morning. The left sub‑clavian artery was ligatured and the wound explored. It was found to have penetrated into axilla which was full of blood clots. The axillary artery was found completely divided‑the proximal end could not be traced. The distant end was found and ligatured. The axillary vein was found to have been partially ruptured ‑and blood was oozing out which was ligatured. Then the wound was closed leaving a corrugated rubber drain in the axilla. Still then the patient did not improve and he was gradually sinking and ultimately expired on 25‑7‑64 at 12‑45 a.m, in the hospital. In all eleven bottles of blood were transfused. He further said that the nature of the injury was grievous. Cause of death was haemorrhage leading to the irreversible shock as a result of the said injury. The injury mentioned above was sufficient in the ordinary course of nature to cause death. With out any medical aid the patient would have died within a few minutes. The injury was homicidal in nature. The doctor also stated that in this case no post‑mortem was necessary to ascertain 'the cause of death though he admitted in cross‑examination that by post‑mortem cause of death is ascertained. He said that he did not hold post‑mortem being definite that the cause of death was the injury. P. W. 16 is Mr. M. A. Samad, the unfortunate father of the deceased who met his sinking son on the operation table in the hospital. He told him that he has been stabbed by Toha when he was returning from college with Matin and Nurul Islam. That his assailant's face was known to him from before and he heard that his name was Toha. The witness also met Nurul Islam at the hospital. He also told him that he, Matin and Iqbal were returning from college when Toba first stabbed Iqbal and then stabbed Nurul Islam and that three more boys were behind them and that after they stabbing Toha they ran away together. He stated that a Surgeon came by Government plane but as grouping of blood was not known he could not come with b19od. The doctors then decided that Iqbal should at once be removed to the Dacca Medical College and he was accordingly removed to Dacca by that plane and the witness accompanied them. Plasma was being transfused while on the way to Dacca: He was by the side of his boy day and night and the boy expired on 25‑7‑64 at 12‑45 a.m. in the Medical College, Dacca. He stated that he did not allow the dead body to go for post‑mortem examination and that there was no post‑mortem and that the boy was interred in Azimpura. P. W. 17 Md. Hashem is an A. S. I. of Police who held the inquest on the dead body. He stated that he forwarded the dead body to the morgue but as the A. D. C. (meaning P. W. 16 Mr. Samad) did not like post‑mortem of his son and made an endorse ment to that effect, the dead body was not sent. In cross‑exami nation he stated that the dead body was in the hospital and not actually sent to the morgue. P. W. 18 Md. Israil is a formal witness who seized certain items of documents including the death certificate and the history case sheet. P. W. 19 is Maktub Hossain, S. 1. of Police. He stated that on 21‑7‑64 he recorded the statement of Nurul Islam at about 1‑30 p.m. in the Kushtia Hospital‑Exh.

1. He also met Iqbal in the hospital. He could not record his statement as he was in operation theatre. At 2 p.m. he went back to the thana and started the case on the statement of Nurul Islam Exh. 1 and filled up the F.I.R. Exh.

8. He went to the College Road in front of Kushtia College and P. W. 2 Matin showed him the place of occurrence where he found blood marks and drops of blood continuing up to the point parallel to the Ministerial Staff Quarters of the college near the junction of the College and Hospital Road. He prepared a sketch map of the place of occurrence showing the topography of the place and examined P. W. 2 Matin on that day and searched for all the accused but none of them was available. He examined P. W. 8, P. W. 5, P. W. 6 on 23‑7‑

64. He also examined P. W. 9 Azmatali, Harunar Rashid and Mozammel Haque. He also examined P. W. 1 Nurul Islam and P. W. 3 Mr. Zakaria. On 1‑8‑64 he examined Mr. Samad, father of the deceased. In cross‑examination he stated that P. W. 1 Nurul Islam did not tell him that some one cried out from behind "Mar Shalader" and that P.W. 2 Matin told him that besides the three accused, namely, Bari, Arafin and Rahim, 3/4 others came out by the college gate and were 50,160 cubits behind them and that many other college students also saw the occurrence. He also stated that P. W. 2 Matin did not tell him that Nurul Islam cried Toha as assailant. He also stated that P.W. Mr. Samad did not tell him that Nurul Islam told him that three boys were coming behind or that Nurul Islam told that all four left together. The omissions, if any, as above are minor omissions and having regard to the fact that the infliction of the injury by the appellant Toha has not seriously been disputed, is not of much importance. The above evidence clearly establishes the prosecution story to the extent that the occurrence took place at the time, place and in the manner as alleged by the prosecution. Blood was found on the spot by P. W. 19 Maktub Hussain. The defence version only remained a mere suggestion. The main question before us is that of the injury caused to the deceased. Was it such as could irresistibly lead to the con clusion that the aim and intention was to cause death? 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 death, cannot be ruled out altogether in the absence of the postmortem 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. In this case death occurred after more than four days and during this time the case was handled by doctors; plasma was being transfused both at Kushtia and on the way to Dacca; vessels of the sub‑clavian region which were severed, were ligatured. After removal to'. Dacca Medical College, he was also operated upon by Dr. Nowab Ali, the Surgeon. Thus whether the death was due to some mishandling of the case in transfusing plasma or in ligaturing the vessels or in making preparation for the operation or in course of the operation itself, could only be ascertained by post‑mortem examination. There was also a failure of oxygen at the last stages on the 24th, that is the day previous to his death, as the Oxygen Test went out of order as per Exh.

6. In this case what we get is the opinion of the Clinical Assis tant P. W. 15 Dr. Rashid only who had a lesser part to play in looking after the general condition of the patient and in trans fusing blood to the patient and in helping the Surgeon generally and not the opinion of the Surgeon himself who attended the patient in Kushtia as also in Dacca and ultimately carried out the operation. There is no independent opinion before us except the opinion of the three doctors who attended and treated the case. It will be too much to expect that they would speak against themselves. In the absence of the post‑mortem examination Dr. Nowab Ali, the Surgeon would have been the second best and he was the person most competent to say whether or not the death was due to that particular injury or for some other reason. This Doctor Nowab Ali has been withheld by the prosecution and no explanation has been offered therefore. In those circumstances there would be a legal presumption under section 114 of the Evidence Act that if he was examined he would not support the prosecution case. His absence from the witness box has deprived the defence of the oppor tunity of bringing out facts which might reveal some other cause of death. In any case the omission to hold post‑mortem has deprived the defence of a valuable right apart from the fact that the precise cause of death could only be revealed by such examination. P. W. 15 Dr. Rashid, the Clinical Assistant stated that the cause of haemorrhage leading to the irreversible shock was a result of the said injury. He also went to the length of saying that no post‑mortem was necessary in this case although he himself in cross‑examination admitted that: "By post‑mortem, cause of death is ascertained." In our opinion, the doctor was not quite competent to say that no post‑mortem was necessary in the particular case. Dr. Nowab Ali would have been in a better position to say because he was the special Surgeon although we could not expect that the Surgeon would say something which would have reflected upon the fraternity. So, even if he was examined, it is doubtful whether the Court would accept such opinion because the best mode of ascertainment of the precise cause of, death was post‑mortem examination and in this case it was easy and possible to hold the post‑mortem examination. It is to be noted in this connection that all the three doctors examined in the case in their examination‑in‑chief stated that but for their immediate attention the patient would have sunk within a few minutes which is equivalent to offering an uncalled for sort of apologia for their services. The learned Deputy Legal‑ Remembrancer has referred to certain cases of conviction for murder even when there was no postmortem examination. But those are cases where the body could not be found or the body was mutilated and cut to pieces 'or the death was instantaneous. In this case the body was readily available as stated by P. W. 17 Md. Hashem. It is true that it was the father of the boy who was primarily responsible for withholding the body from the morgue but than the police and the hospital authorities ran a great risk that way by acceding to the feelings of the father. Though post‑mortem examination is not mandatory under any provision of law, its absence in border line cases may belt made such of by the defence throwing the door wide open for speculations. So far as the intention of the appellant Toha is concerned, one important factor for consideration is this that the condemned prisoner dealt only one blow with a knife to the deceased and then another blow or two blows immediately after on Nurul Islam with the same bloodstained knife which was, however, partly averted and for whatever reason resulted in the infliction of a simple injury upon Nurul Islam. There is also some hint that he was about to do the same with Matin, the third man in the row. If the appellant's intention was death he would have repeated the blow on the deceased instead of diverting the later blows to Nurul Islam. This would indicate that his intention was to teach some members of the other party a lesson by giving them some beatings regardless of who the victim be. Some clue as to the intention was furnished by the fact that some boys shouted saying "Mar Shalader" which literally translated means "beat the Shalas". The order thus was not to finish or kill them. The learned Sessions Judge in the concluding lines observed:‑ "This shows that Toha went armed with knife with the idea of beating or killing Court Para boys and when he found lqbal, Nurul Islam and Matin coming out of the College, he suddenly fell on them and seriously injured Iqbal and Nurul Islam by the knife blows;" as if he could not make up his mind. The injury on the body which was near the collar bone and fairly high near the shoulder was, not so very vital. The blow was not on the chest as deposed to by some of the witnesses. It was in the left sub‑clevicular region above the chest and just below the left collar bone as testified to by P. W. 12 Dr. Abul Hussain. The history sheet Exh. 6 also shows the injury to be H/O stab injury on the anterior aspect of the left shoulder. As to the size of the weapon used, that is not before us, and there is the solitary evidence of P. W. 1 ' Nurul Islam that it was about 1 " inches by 6/7 inches. He saw the weapon momen tarily and he gave the dimensions thereof by guess. At any rate, it was not big enough to attract the attention of any body else in the broad daylight and it seems could be comfortably tucked inside the sleeve or shirt. Even Matin P. W. 2, the third man in the line does not seem to have noticed the size of the knife or dagger. And besides having regard to the fact that the prosecution has failed to establish beyond reasonable doubt that the blow caused the death, it ceases to be culpable homicide in the sense of section 299 of the Pakistan Penal Code. Since, however, the evidence of the doctor was to the effect that the injury was a grievous one as per P. W. 12 Dr. Abul Hussain and as per the comment in the injury report Memo, No. 816 and Iqbal actually died latex on, there can be, no gain saying the fact that it endangered the life of the victim. The injury having been caused by a knife, the offence committed by the appellant Toha upon the deceased would come under section 326 of the Pakistan Penal Code. So far as the injury inflicted upon Nurul Islam P. W. 1, goes it seems to be a case of 324 of the Pakistan Penal Code; the injury report showing the injury to be simple. The evidence of P. W. 12 Dr. Abul Hussain is also to the same effect. This injury as inflicted was also far away from the vital region. Considering all the circumstances above we allow the appeal to the extent that the offence of the appellant Abu Toha alias Raja under section 302 of the Pakistan Penal Code for causing death of lqbal is modified to one under section 326 of the Penal Code and the conviction of the appellant under section 307 of the Penal Code for the injuries upon Nurul Islam is reduced to one under section 324 of the Penal Code. We sentence the appellant Md. Abu Toha alias Raja to transportation for life under section 326 of the Pakistan Penal Code and to rigorous imprisonment for two years under section 324 of the Pakistan Penal Code the sentences being ordered by us to run concurrently. The Reference is thus rejected. A. SUBHAN CHOUDHURI, J.‑I agree. K. B. A. Appeal partly accepted.