P L D 1977 Lahore 222 (PLP)

"It is correct that the statement of Ashiq Ali P. W. was recorded by the Sub‑Inspector in the hospital and his thumb impression was also obtained thereon. The Sub‑Inspector then took me along and recorded my statement at the Police Post and also obtained my thumb impression thereon." Ashiq Ali P. W., on the other hand, stated "The Sub‑Inspector had come to the hospital and had recorded my statement. Thereafter, I came back to my house at 1 a.m. The Sub‑Inspector did not visit the hospital again till my departure on that night." He had also stated before the committing Magistrate that 20 or 25 minutes after his arrival, the Sub‑Inspector in charge Police Post City had reached the hospital in plain clothes and while the doctor was administering treatment to the injured, he and others had accompanied the Sub‑Inspector to the Police Post City, where the statement of Zakaria was recorded. Ashiq Ali did not specifically state that his statement had been recorded prior to that of Zakaria, though according to Zakaria the statement of Ashiq Ali had preceded his own. The Police Officer had, however, stated "I had recorded the statement of Zakrya P. W. in the Kachary Bazar, near the main gate of Kachary which is at a distance of 150 karams from P. S. Bhakkar . . . . I recorded the statement of Ashiq Ali P. W. in the hospital on 11‑5‑1972 at about 11 p.m. . . . . It is incorrect that I recorded the statement of Ashiq Ali P. W. in the hospital and obtained his thumb impression thereon."

4. It, therefore, appears that according to Ashiq Ali, his statement was recorded in the hospital, but according to the police officer, it had been recorded at the adda. Unfortunately, the distance from the adda to the hospital has not been given in the evidence but there is no reason to believe that it was far from the hospital. Anyway, the discrepancy, even though present, is not on the material point. The fact that Zakaria's statement bad been recorded at 10‑10 p.m. and that of Ashiq Ali at 11 p.m. shows that Zakria's statement was prior in time. There is, therefore, no good reason to believe that the statement of Zakaria complainant had been recorded after some investigation.

5. Of the eye‑witnesses, it is obvious that Zakaria had not deposed in line with his statement Exh. P. B. and the trial Court was right in discarding his testimony. As regards Ashiq Ali P. W., the contention is that he is an interested witness. The basis for the contention is the admission of the witness that the deceased being a Syed, had been his Pir. This by itself will not make the witness interested unless it is shown that he had some motive to falsely implicate the appellant. There is no material to suggest any such motive. He, as has come in evidence, himself was a rnalang and had been present at the darbar where the occurrence took place. He is, therefore, a natural witness and as such his evidence can be believed. As already mentioned, he had supported the prosecution case.

6. On the question of the offence actually committed, learned counsel for the appellant has argued that as the death had been caused by gangrene, the offence fell under section 326 and not under section 304, P. P. C. The medical officer had expressed: "The death in my opinion had occurred due to gangrene of the intestine". He had again stated that "death in my opinion had occurred due to gangrene of intestine which was the result of the injury on the person of the deceased". The description the injury given by the medical officer had been "A stab wound, 1" x 1 /2" x peritoneal cavity deep, on the. left flank. The small intestine was lying out. Mesentery vessels ruptured. Bleeding from the cut‑vessels. The intestine was also perforated." Learned counsel relied on Empress of India v. Idu Beg ILR 3 All .776, Empress of India v. O'brien 1LR 2 All .766 and Muhammad Rahim v. Kajeerullah and another 1968 S C M R 1368. In the first cited case it was held that where a person struck another a blow which caused death, without any intention of causing death, or of causing such bodily injury as was likely to cause death, or the knowledge that he was likely by such act to cause death, but with the intention of causing grievous hurt, the offence of which such person was guilty was not the offence of causing death by a rash act, but that of causing grievous hurt. In the second cited case, where a person had caused hurt to the deceased, who had been suffering from spleen disease, knowing himself to be likely to cause grievous hurt, but without the intention of causing death, or causing such bodily injury as was likely to cause death, or the knowledge that he was likely by his act to cause death, and caused grievous hurt to the deceased from which the latter died, it was held that the person ought not to be convicted under section 304‑A of causing death by negligence, but under section 325, Penal Code of voluntarily causing grievous hurt. Neither of these two authorities is attracted to the facts of the present case. The last mentioned authority is also not relevant because there the medical evidence had not been clear whether death had been caused by peritonitis resulting from the wound.

7. Another authority relied on by learned counsel was Harnam Singh and others v. Emperor A I R 1936 Lah.

833. In this case, the accused had hit the deceased with an axe causing an incised wound on the left forearm with compound fracture of both bones, but it was found in the post‑mortem examination that death had been due to gangrene. The Court was of the view that the wound on the arm was not an act done with the intention of causing death nor with the intention of causing such bodily injury as was likely to cause death and death was not the natural result of the act. Upon this view, the conviction was altered from section 304 to section 326, Penal Code. The facts in this cited case too are not on all fours with those in the present case. Anyway, the view taken therein had not generally prevailed with the Courts including the Lahore High Court itself. In an earlier case, i.e. Fazla and others v. Emperor A I R 1928 Lah. 351, it had been held "If a person receives grievous injuries and is detained in hospital and as a result of those injuries pneumonia supervenes and the victim dies, the perpetrators of the attack upon him are guilty of murder." Again in Lal Singh and others v. Emperor A I R 1938 Lah. 31 where a person who was seriously injured by the accused and had died subsequently but in the post‑mortem, examination it had been found that the immediate cause of death was gangrene which had set in the right foot and leg as a result of the injury, the accused had been held guilty under section 302, Penal Code. In Naga Ba v. Emperor A I R 1937 Rang. 429 the view taken was : "When the disease which actually causes death is meningitis, peritonitis, tetanus, pneumonia, etc., and it is natural and probable result of the injury, the person who inflicts the injury must be held responsible for the disease arising from the injury." In Nga Myauk Nyo v. The King A I R 1938 Rang. 56 where the injury was sufficient in the ordinary course of nature to cause death but was not necessarily fatal and the death took place because infection set in, it wag held that the fact would make no difference to the criminal responsibility of the person accused. The same view had been taken in Syed Amin v. The State P L D 1959 Lah. 541 and Karam Din v. State 1969 P Cr. L 1482. A question somewhat similar had come up before the Supreme Court in Syed Tajammal Hussain v. Nasar Mehdi and another P L D 1976 S C 377 where the accused had been convicted by the trial Court under section 302, P. P. C. and sentenced to death, but the High Court, upon the view that death had been contributed by negligence in the treatment of the wound of the deceased, had altered the conviction from section 302 to section 307, P. P. C. The Supreme Court had disagreed with the High Court and had restored the conviction under section 302, P. P. C. recorded by the trial Court. Their Lordships observed "Therefore, even though the provision is of a penal nature, we have to give effect to its plain meaning and this means that the first respondent was guilty under section 302, P. P. C. even though the deceased might not have died but for negligence in the treatment of his wounds." I am, therefore, satisfied that the appellant had been rightly convicted under section 304, P. P. C. Since he had caused the injury at a vital part, her" committed an offence under Part I of that section.

8. On the question of the sentence, I find that the evidence is not clear as to what had actually led to the attack. According to Ashiq Ali, the appellant and the deceased had started quarrelling and "the accused took out knife from his pocket and stabbed in the left flank of the deceased and told him as to why had he cut dirty joke". The nature of the dirty joke has not been given. It will be not unsafe to presume that the dirty joke must have caused extreme annoyance to the appellant which had resulted in the loss of self‑control because the attack had been sudden. Then there is the fact of the solitary blow. I am inclined to the view that the sentence awarded calls for reduction. I accordingly reduce the same from R. 1. for ten years to R. 1. for seven years. With this reduction in the sentence, the appeal is dismissed. S. Q. Sentence reduced.