1998 PLP 1778 (SCMR)

MUNAWAR AHMAD MIRZA, J.

This appeal, by leave of the Court, is directed against judgment, dated 18th November, 1997, passed by Lahore High Court in Criminal Appeal No. 56 of 1994 and Criminal Revision No. 146 of 1994.

2. Facts are very brief and simple; but require .consideration of an important point of law. Complainant Altaf Hussain, an employee of Packages Limited, Lahore on 9th April, 1991 at 7-00 a.m. lodged report that his son Zaheer Altaf, aged 9/10 years, a student of 5th class, while waiting for school transport near Q- Block Flats, was run-over by Bus bearing Registration No. 1813/LHP. It was alleged that the appellant was driving the bus rashly and negligently; arrived from the direction of R-Block and struck against Zaheer Altaf. who was, thus, seriously wounded and removed to General Hospital where he succumbed to injuries. Appellant was tried by Judicial Magistrate Section 30, Model Town, Lahore and vide judgment, dated 17th February , 1994, convicted under section 320, P.P.C. and sentenced to suffer R.I. for six years, besides payment of 'Diyat' amounting to Rs.1,48.000 (Rs. one lac forty-eight thounsand) to legai heirs of deceased within one year in equal installments or in default to remain to jail till payment of ' Diyat' .

3. Appellant feeling aggrieved had preferred Criminal Appeal No. 56 of 1994 before Lahore High Court. Complainant Altaf Hussain also filed Criminal Revision No. 146 of 1994 seeking enhancement of sentence. Both these matters were eventually decided by the High Court through common judgment, dated 18th November, 1997. The appeal was partly accepted and sentence of six years' R.I. was reduced to R.I. for four years; however, 'Diyat' amount of Rs.1,48,000 was maintained.

4. Petition for Leave to Appeal No. 457-L of 1997 was filed challenging judgments of both the Courts below. Leave was granted by this Court on 4th February, 1998 for considering whether Lahore High Court has appraised evidence on record with a view to determine the question of rash and negligent driving by the appellant on the date of incident.

5. Raja Mehmood Akhtar, Advocate Supreme Court, appearing for appellant strenuously raised following contentions:-- (a) Conviction under section 320, P.P.C., in the absence of post-mortem report was illegal and the High Court has acted illegally in ignoring this aspect of the case. Reliance was placed on few reported judgments. (b) The evidence has been misread and misappreciated by the two Courts below. Therefore, conclusions drawn in the impugned judgment suffers from material defect.

6. Mr. M. Zaman Bhatti, Advocate Supreme Court, appearing for the State, opposing the appeal contended that Courts below have through evaluated the evidence and conclusions are based on sound reasonings. Learned State Counsel emphatically argued that to hold a person guilty for causing Qatl-e Khata essential requirements would be to ascertain whether deceased suffered an injury as consequence of rash or negligent act of the culprit and that death was proximate cause of injuries suffered by him and thereby to examine quantum of punishment which must be awarded in the circumstances of the case. According to State Counsel conducting autopsy or recording statement of medical officer or discovery of body are merely- corroborative pieces of evidence and any omission or failure of conducting post-mortem or examining medical officer in that behalf would not be ipso facto fatal and could not result in automatically exonerating the culprit.

7. We first, proceed to record below case-law relied upon by learned counsel for appellant to substantiate his stand:-- (i) Mehram Ali v. The State (Criminal Appeal No. 20-J of 1997 decided by Division Bench of Lahore High Court on 14-10-1997 (unreported): "The last contention of the learned counsel for the appellant that post mortem reports of only three deceased persons were produced, therefore, he could not be convicted on 23 counts has been considered by us and we accept it. Prosecution neither produced the post-mortem examination reports of 20 persons nor the doctors who examined tote deceased were produced. In such circumstances, the appellant cannot be held responsible for their murders. Therefore, while dismissing the appeal, we confirm the death sentence of the appellant on three counts only. The convictions and sentences for other offences are, however, maintained." (ii) Abdul Latif v. State (1972 PCr.LJ 1095): "It is unfortunate that even this report of the doctor was not proved during his evidence at the trial. fie had been attending to Ajaib Khan deceased who was under his treatment in the hospital till his death and was thus conversant with the developments which had led to his death. A formal post-mortem examination was, however, necessary to find out the exact cause of his death. As a result of this unfortunate omission the prosecution had failed to establish that the death of Ajaib Khan deceased was the direct result of the injuries suffered by him on account of the rash or negligent act of the petitioner. He could be held guilty of an offence under section 304-A, P.P.C., only after it was proved by the necessary medical evidence that the resultant injuries were the immediate, proximate and efficient cause, the causa causans and not merely the causa sine qua non of death, without the intervention of any other negligence." (iii) Syed Amanat Ali v. The State (1975 PCr.LJ 952): "The petitioner had over-ntn Mst. Ghulam Bibi (deceased) under his bus and then struck down her brother Miraj Din P.W. as also another pedestrain named Munawar Hussain, causing serious injuries to them resulting in a charge under sections 279/337/304-A, P.P.C. The learned Magistrate had, however, convicted him only for the main offence, i.e. under section 304, P.P.C. but without recording the evidence of Dr Muhammad Idrees, who had examined the injuries of all three of them. His medico-legal certificates were on the file and his name was entered in the calendar of witnesses. He was no doubt summoned twice or thrice, but there was an order on record if he was ever served and was evading his attendance or could not be made available for evidence without unnecessary expense or delay in which case secondary evidence could be led to prove these medico-legal certificates. Anyhow before a person can be convicted under section 304-A, P.P.C., it is incumbent upon the prosecution to prove the cause of death of the victim of the rash and negligent driving as held in Abdul Latif v. State." (iv) Muhammad Bakhsh v. The State (1976 PCr.LJ 405): "As I have observed above, no post-mortem was carried out and therefore, it cannot be safely inferred that the death of the deceased was the direct result of the injuries suffered by him as a result of the accident. Post-mortem examination was necessary to bring out the fact that the death had occurred due to injuries received by the deceased on account of said accident. While taking this fact in view, I am fully supported by Abdul Latif v. State, wherein it is held as under:-- A formal post-mortem examination was, however, necessary to find out the exact cause of his death. As a result of this unfortunate omission the prosecution had failed to establish that the death of Ajaib Khan deceased was the direct result of the injuries suffered by him on account of the rash or negligent act of the petitioner. He could be held guilty of an offence under section 304-A, P.P.C., only after it was proved by the necessary medical evidence that the resultant injuries were the immediate, proximate and efficient cause, the causa causans and no merely the cause sine qua non of death, without the intervention of any other negligence'. (v) Badshahzada v. The State (1993 PCr.LJ 699): "

8. It is conceded at the bar that in the instant case the formal post mortem examination of Dr. Atique Younas has not been conducted, and as a result of this unfortunate omission the prosecution has failed to establish that the death of Dr. Atique Younas deceased had been caused due to the injuries suffered by him on account of rash or negligent driving of the convict-petitioner. He can be held guilty of an offence under section 304-A, P.P.C., as held in Abdul Latif v. State 1972 PCr. LJ 1095 after it was proved by the necessary medical evidence that the resultant injuries were the immediate, proximate and efficient cause, the causa causans and not merely the causa sina qua non of the death without intervention of any other negligence. This view was expressed after surveying the case-law: (1) Emperor v. Omkar Ram Partap (1902) 4 Bom. LIZ 679, (2) Satnarain Pandey v. Emperor AIR 1933 All. 332, (3) State of Madhya Pradesh v. Ranjit Kumar Chaterjee and others AIR 1959 Madh. Pra. 284, (4) Stya Mali v. State AIR 1964 Orissa 173 and (5) Qurban Hussain Muhammadalli Rangawalla v. State of Maharashtra AIR 1965 SC 1616. This dictum of Lahore High Court was subsequently followed by the Karachi High Court in the case of Muhammad Bakhsh v. The State 1976 PCr.LJ 405. 9 .. 10 ............... 11 ..

12. For the foregoing reasons, I find that the case against the convict petitioner under sections 304-A and 338, P.P.C. has not been made out. His conviction and sentence under these two sections are set aside and he is acquitted. Nonetheless, the convictions of the petitioner under section 279 read with section 427, P.P.C. are upheld. He is sentenced under section 279, P.P.C. to rigorous imprisonment for two years and fine of Rs.3,000 or in default to suffer further simple imprisonment for six months. His sentence to six months' rigorous imprisonment under section 427, P.P.C. and a fine of Rs.1,000 or in default to suffer two months' simple imprisonment is maintained. However, the sentences of imprisonment shall run concurrently." (vi) Muhammad Nawaz v. The State 1986 PCr.LJ. 2264: "I need not go into the merits of this case, as Khawaja Hafiz Ullah, Advocate for the petitioner, does not challenge the conviction of the petitioner, but only prays for the reduction of the sentence of the petitioner to that already undergone, as this is an old case which requires special treatment. Learned counsel submits that the petitioners had already undergone roughly three weeks, detention both an under trial prisoner and as a convict. He further submits that this petition, which was admitted in 1971, has now come up for hearing after almost fourteen years and it would be highly inequitable to send back the petitioner now to jail to serve out the remaining portion of his sentence. It is lastly contended that the petitioner has undergone the agony of a protracted trial and appellate proceedings and also the agony arising out of the apprehended dismissal of this petition, both of which are sufficient punishments. The learned counsel for the State does not seriously oppose the request. Taking all circumstances into consideration, I would maintain the conviction of the petitioner under section 304-A, P.P.C. but in view of the special circumstances of the case, I would reduce his sentence to that already undergone, but would enhance the fine from Rupees one thousand (Rs.1,000) to Rupees three thousand (Rs.3,000). The petitioner is on bail. Subject to his paying the enhanced fine, his bail bond shall stand discharged. This petition, therefore, stands partially accepted, in terms of reduction in the sentence, with enhancement of fine as stated above. " . (viii)Kurban Hussain Muhammadalli Rangawalla v. Maharashtra State AIR 1963 Supreme Court 1616: "The use of naked fire could inconceivable circumstances even raise the temperature of the room itself above the flash point of turpentine and if the turpentine ever happened to be exposed it might easily catch fire. There was in our opinion, therefore, always a probable danger to human life by the appellant negligently or knowingly omitted to take proper care in the matter of the four Burners and turpentine and varnish. His action in allowing burners to be lighted in the room without any safeguard did in our opinion amount to omission to take such order with fire and combustible matter as would be sufficient to guard against probable danger to human life. We can only say that it was lucky that fire had not broken out earlier. But there can be no doubt that the omission of the appellant to take proper care with burners in particular when such combustible matter as turpentine in large quantity was stored at a distance of 8 to 10 feet from the burners was such omission as amounted to insufficient guard against probable danger to human life. Finally when we remember that all this was done in breach of the general and special conditions of the licence given to the appellant for storage of turpentine, varnish and paints, we have no doubt that the appellant knowingly, or at least negligently, failed to take such order with fire and the combustible matter as would be sufficient to guard against any probable danger to human life. In the circumstances we are of opinion that the appellant has been rightly convicted under section 285 of the Indian Penal Code. Considering that seven lives have been lost on account of the negligence of the appellant in this connection, the sentence of six months' rigorous imprisonment which is the maximum provided under section 285 cannot be said to be harsh. We, therefore, partially allow the- appeal and set aside the conviction and sentence of the appellant under S.304-A of the Indian Penal Code. The appeal is dismissed so after as his conviction under section 285 of the Indian Penal Code is concerned. The appellant will surrender to his bail to serve the remaining sentence under section 285 of the Indian Penal Code."

8. Having analysed the principles discussed in afore-quoted judgments we cannot subscribe to the conclusions drawn therein. Apparently there could be numerous situations where dead body after causing death on account of rash or negligent act or Qati-e-Amd is either removed or could not be discovered or found in a precarious condition making it impossible to arrange post-mortem. Therefore, in our considered opinion above rule is not absolute and needs thorough reconsideration. We may notice that medical evidence merely provides corroboration or support to substantive or circumstantial evidence. It cannot be deemed sufficient for proving accusation against the person charged for an offence. Acceptability of medical evidence obviously depends upon grounds or cogency of reasonings on which the opinion/report is based. Certainly, the Courts seized of jurisdiction are competent to ignore medical opinion for lack of satisfactory explanation, and may place reliance on the ocular version or other circumstantial evidence when found it considerably convincing. Principle underlying medical evidence was considered by this Court in case Machia v. State (PLD 1976 SC 695 at pages 707 and 708):-- . "Medical evidence by itself and without more cannot throw any light on the identity of the assailants, but in the case of inimical evidence, it is this aspect of the ocular evidence which requires corroboration, because the danger in relying on the ocular evidence in such cases is that the witnesses may falsely implicate their enemies. At the highest, therefore, the fact that the medical evidence is consistent with the ocular evidence may furnish some limited corroboration of the ocular evidence if it can lead to the interference that the eye-witnesses have spoken the truth."

9. Lahore High Court in case Tariq Rashid v. State (1990 MLD 697) has observed that when conduct of eye-witnesses is above board and their veracity is unimpeachable, the opinion of doctor with regard to approximate time of occurrence on the basis of semi-digested food can be safely excluded from consideration. In case PLD 1982 SC 224 (Qabool v. State) while comparing ocular testimony with conflicting medical evidence with particular reference to side with which injuries were caused, preference needs to be given to ocular version. Opinion of doctor which is not based on recognized principle of medical jurisprudence has neither relevancy nor binding effect. Similarly when time specifying death, nature or number of injuries or kind of weapon used for inflicting injuries Court lean toward ocular-account in preference to medical evidence. Reference in this behalf may be made to observations in cases reported as (i) NLR 1988 Cr.517, (ii) NLR 1988 Cr.416, (iii) NLR 1978 Cr. 253 and (iv) NLR 1988 Criminal 381).

10. Now adverting to crucial point involved in the present case, it may be seen that when factum of Qatl-e-Khata or Qatl-e-Amd has been independently established through strong and convincing evidence, mere fact that dead body was not discovered or post-morten was not conducted has altogether no material effect or legal consequence. A Full Bench of Allahabad High Court in case Raggha v. Emperor (AIR 1925 Allahabad 627) had found appellant guilty despite non-discovery of dead body. Majority view comprising of Chief Justice Mears and Justice Benerji relying upon retracted confession and other factors found appellant guilty and awarded him capital punishment. Relevant portion from the observations of Chief Justice Mears reproduced below:-- "He may of course be wrong in his inference that Mangli was dead, but his confession must at least be taken against him to the extent that he believed Mangli to be dead. I believe Raggha when he says that there was a quarrel of long standing, that there was litigation ending adversary to him, that he tracked out Mangh, that he gave information to the other persons, that there was a general agreement to murder him. I accept the way in which he describes the assault, the dispersal of the assailants because they believed that the villagers of Bahadurpur were aroused. I accept the fact that they returned to Mangli and 1 certainly accept his statement that eventually Mangli was found to be dead. I also accept the story as to what happened subsequently. In these circumstances what is the position? Why should not the ordinary consequences follow? Here we have a brutal murder, perpetrated undoubtedly by a considerable number of persons at all events, there were enough men to enable them to carry the body 1-1/2 miles. The man was struck down, dragged, beaten and eventually found .to be dead. There is, as far as I can see no extenuating circumstance whatever. Raggha was a participant in the matter from the beginning, the known object of it being to kill Mangli. It is said by Mr. Laghate that we should not pass the sentence of death, but should pass the lesser sentence of transportation for life. Why? If one is satisfied that murder was committed, why should not the appropriate punishment follow? It is the murder which is the thing to be regarded, that is to say, the killing of a human being by one or more human beings without just cause or excuse. It is not the finding of the body. The absence of the body is a circumstance which makes it necessary to proceed with care and caution. But I say that in every case of murder one has to proceed with the greatest care and caution, and one must never confirm a sentence of death, unless one feels completely satisfied about it. If there is such an element of doubt as to render a Judge in the least degree uneasy of mind, the proper course is not to change the nature of sentence, from death to transportation for life, but to acquit the man altogether. Having myself not the slightest degree of uneasy feeling about this matter I believe it is my positive duty in the circumstances to accept the plain definite unqualified statement of Raggha "on our return we found that Mangli was dead". Believing it to be my duty to accept that, recognising that it is the death which constitutes the crime, and not the recovery of the body, and recognising also the excellent reasons which have been given for the failure to find the body. I am of opinion that the decision of the learned Sessions Judge was in every way correct, and that he passed upon Raggha the only sentence that should have been passed, namely, that of death. In these circumstances my opinion is that the decision of the learned Sessions Judge should be confirmed, and that the sentence of death passed upon Raggha should be duly carried out." (Underlining is for emphasis). Justice Benerji,, discussing detailed facts came to conclusion that circumstances were sufficient to prove death of Mangli and agree to the confirmation of death sentence. Relevant observations are also reproduced below:-- "Laghate on behalf of the accused to show that this confession must be held to have been brought about by some inducement, I cannot find anything from the record to suggest any act by any of the policemen concerned which I would call suspicious, and unless and until I am of opinion that something suspicious had been done, I cannot wipe out the confession which I believe, taken with other evidence, shows to me that Raggha was one of the persons concerned in the murder of Mangli, and that he was one of the chief offenders in the case. Nothing has been shows to suggest that anybody else in the village had a greater motive than Raggha to kill Mangli. Nothing has been shown why I should assume that Reggha had taken a minor part in the killing when he had the greatest motive for the killing. The last point is what is a suitable sentence to pass under the circumstances of this case. If I had the slightest doubt as to the guilt of Raggha, I would certainly give him the benefit of it, and direct him to be acquitted. I have none. There are no circumstances in this case, such as an act of Mangli which had been of great annoyance to Raggha, or an act of Mangli although legal yet normally wrong, or such provocation by Mangli which might not come under the definition of grave and sudden provocation but provocation as understood in the ordinary language, so that I would give Raggha a lesser sentence. I have no hesitation in agreeing to confirm the sentence of death passed upon Reggha. " Justice Mukerji though held appellant guilty for offence under section 302, Indian Penal code but proceeded to award sentence of transportation for life. Relevant observations are as under:-- "Under section 302 of the Indian Penal Code two sentences are provided, for a case of murder, viz, the capital sentence and that of transportation for life. Section 367 of the Criminal Procedure Code enacts that where in a case of murder the Court does not pass a sentence of death it is for it to explain the reasons. I think it is a perfect legitimate reasons to say that where, as in a case like this the dead body does not appear and the factum of death is established by nothing but a retracted confession, there is a suitable case where a sentence of transportation ,may be awarded instead of the heavier sentence. If, in acting like this, a Judge errs, he errs on the side of prudence alone. For reasons given above, I would convict the appellant under section 302 of the Indian Penal Code and sentence him to transportation for life. " (Underlining is merely for emphasis). However, keeping in view the majority opinion the Court confirmed the sentence of death awarded to appellant by the Sessions Judge.

11. This Court while considering probative value of ocular evidence and making its comparison with medical evidence had observed in case Arif Shah v. State (1985 SCMR 850) that testimony of witnesses when overwhelmingly establish offence against the accused and nothing existed to create reasonable doubt concerning his involvement then medical evidence being merely an expert opinion could not be relied upon with mathematical precision. Relevant observations are thus:-- "It was then argued that the medical evidence also negates the possibility of the deceased having made the dying declaration in presence of the S.H.O. In this connection reference has been made to the evidence of Doctor Khaista Khan Afridi who has stated that the probable time between the injuries and death must have been 25 to 35 minutes and further that the injured must have been unconsicious or drowsy on account of shock within 10 to 15 minutes of receiving the injuries. Nothing much turned upon these statements of the doctor which are a matter of expert opinion and cannot, therefore, be relied upon with mathematical precision. The marginal difference being only of 15 minutes there would always be an allowance to be made from case to case depending upon so many variable factors obtaining in a particular case. This is clear from the manner in which the opinion has been expressed in hypothetical terms. " It may be seen that one of us (Justice Nasir Aslant Zahid) in Muhammad Riaz v. State (1986 PCr.LJ. 2233) has observed that in an accident case where negligent and rash driving resulted in causing injuries is established, in such matter mere failure to conduct post-mortem would not demolish the prosecution case.. Relevant observations appearing at pages 235 to 237 are reproduced below: "From the evidence of the two witnesses on behalf of the defence it appears to be an admitted position that the bus in question was being driven received injuries. On the one hand there is the clear evidence of P.W.1 Badruddin, the traffic constable, that the accident had been caused due to rash and negligent driving of the appellant which resulted in injuries to the deceased and on the other side there is the version on behalf of the defence that the bus had stopped and then the deceased himself dashed against the bus in question with such force that he received very serious injuries including multiple skull fractures. The version given on behalf of the defence appears to be unbelievable in view of the grievous injuries found on the body of the deceased. The version of the prosecution brought on record through evidence of P.W.1 Badruddin has been believed by the two Courts below and as observed earlier I find no reason to reject the testimony of P.W. Badruddin. It may also be observed that nothing has been brought on record to show any reasons for false implication of the applicant in this case. (b) The next contention of Mr. Fazulur Rehman, learned counsel for the applicant, was that at the most the prosecution had established that the accident had taken place but the charge that it was due to rash and negligent driving by the applicant had not been. established. I find no force in this contention. Evidence of P.W. Badruddin who was the traffic constable at the relevant time and who witnessed the actual incident is clear on the point that the bus was driven rashly and negligently with high speed and this resulted in the accident causing injuries to the deceased." Learned counsel for the applicant had relief upon the following reported judgments:-- Mst. Shafiq Begum v. The State 1976 PCr.LJ 356; Noor Khan v. The State 1974 PCr.LJ 56 and Qalam Khan v. The State 1974 P.Cr.LJ

279. These three judgments were cited by the learned counsel for the applicant for the proposition that unless the prosecution adduces evidence of rash or negligent driving_ conviction under section 304-A Cr.P.C. (P.P.C.) cannot be sustained. In those decisions it was found that the evidence on record had not established that the accused was driving the vehicle in a rash or negligent manner at the time of incident. In the present case, however, there is evidence on record which established that the accident was caused on account of rash and negligent driving of the applicant and as such the judgments cited by the learned counsel for the applicant are of no avail to the applicant. Finally it was contended by the learned counsel for the applicant that as no post-mortem of the deceased had taken place in this case, it was not established by the prosecution that the death of deceased Sher Bahadur had been caused on account of injuries received in the said accident. In this case, according to the prosecution, the deceased, who had received very serious injuries and taken by PW.2 Muhammad Bashir (police constable), who was present at the time the incident had taken place, to Civil Hospital in a rickshaw but there the injured died. P.W.4 Dr. Saleem (Exh. 6) was working as Medico-Legal Officer in Civil Hospital, Karachi on the day of the incident. According to his evidence. Police Constable Muhammad Bashir Buckle No.6827 had brought an injured person aged about 65 years with history of road accident. He examined the injured and found various injuries on the body of the deceased. X-Ray of his skull ws taken according to which X-ray the deceased had suffered multiple fractures of the skull. According to the opinion of Dr. Saleem the cause of death of deceased was bleeding and shock resulting from multiple fractures of the skull. According to Dr. Saleem injuries were caused by some hard blunt substance. From the evidence of PW.l Badruddin, P.W. Bashir and Dr. Saleem, the prosecution had established that the death of Sher Bahadur had taken place on account of the injuries received by the deceased in the accident caused by rash and negligent driving by the applicant. In the facts of this case, the evidence on record including the evidence of Dr. Saleem, established that the cause of death of the deceased was the injuries received in the accident. Failure to conduct post-mortem did not demolish the case of the prosecution. Mr. Fazalur Rehman, learned counsel for the applicant had relied upon two reported judgments for the proposition that in case post-mortem is not conducted the case of death is not established. The first case cited by the learned counsel is Sher Zaman v. The State 1983 PCr.LJ

610. In this reported judgment, post-mortem had taken place but the doctor who had performed the post-mortem was not examined and no reason was given for his non-examination. This is not the case here. The doctor who has examined the body of the deceased appeared as a prosecution witness. He gave his evidence in sufficient detail and he was not cross- examined. The other judgment relied upon was in the case of Muhammad Bux v. The State 1976 PCr.LJ

405. In this judgment, it was observed that post mortem examination had not been carried out and, therefore, it cannot be sufficiently inferred that the death ,of the deceased was the direct result of the injuries suffered by him as a result of the accident and that post-mortem examination was necessary to bring out the fact that the death had occurred due to injuries received by the deceased on account of the said accident. With respect I may observe that I do not subscribe to the view that unless a post-mortem of the deceased in a case under section 304-A, Cr.P.C., is carried out, exact cause to death cannot be determined. In my view, even in the absence of post-mortem examination, if the evidence of the doctor who had examined the injuries on the person of deceased is on record and from such evidence the exact cause of death of the deceased can be determined, the absence of post-mortem examination in such a case would not be fatal to the case of the prosecution. And as observed earlier, in the present case, the prosecution evidence which includes the evidence of Dr. Saleem has established that the death of victim Sher Bahadur was the result of injuries sustained by him in the accident caused by the applicant."

13. A Division Bench of the Peshawar High Court in case 1985 P.Cr.L.J 463 (Rahimuddin v. State) had observed that mere fact that post-mortem examination was not conducted and would not be fatal to prosecution case when sufficient independent evidence existed to substantiate accusation against the accused person. Relevant observations are as under:-- "Similarly, the absence of post-mortem examination and inquest report regarding the injuries sustained by the deceased would not be fatal to the prosecution case. Reference can be made to the provision of section 174(3), Cr.P.C. which is in the following terms: '174(3) when there is any doubt regarding the cause of death, or when for any other reason the police-officer considers it expedient so to do, he shall, subject to such rules as the (Provincial Government) may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the (Provincial Government), if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.' Under rule 25.35 of the Police Rules, 1934, an Investigating Officer is required to draw a report stating the apparent-cause of death and to give a description of any mark or marks of violence which may be found on the body and describe the manner in which and the weapon or instrument with which such marks appear to have been inflicted. No doubt the Investigating Officer has not complied with the obligatory provisions of Police Rule 25.35 read with section 174, Cr.P.C. in failing to prepare the inquest report but in our view, the absence of the inquest report or for that matter the absence of post-mortem examination, in the circumstances of the case, would not be fatal to the prosecution, There is sufficient evidence on the file to establish that Fazle Qadir (deceased) was done to death by the appellant by firing at him. The injury sheet of thedeceased prepared by the Investigating Officer reveals that there was an inlet fire-arm wound on the ribs on the left side of the chest with a corresponding exit wound on the right side. This fact lends sufficient support to the version given by the eye-witnesses. According to Fazle Maula (complainant) the deceased was hit with the fire shot on his right ribs but according to the injury sheet (Exh.PE) the inlet wound is on the left ribs of the deceased. This discrepancy appears to be the result of some mistake either on the part of Fazle Maula (complainant) or by the Investigating Officer. The fact cannot be lost sight of that the complainant was examined as a witness in the case after about 9 years of the occurrence. The blood-stained short of the deceased alongwith the blood-stained earth, grass and sand recovered from the spot were forwarded to the Chemical Examiner for analysis, whose report is in the positive. This can be taken as a piece of corroborative evidence coupled with the existence of a motive for the offence and the abscondence of the appellant from 12-9-1974 to 25-2-1991 i.e. for a period of more than 6 years."

14. Federal Shariat Court in case Abdul Malik v. State (PLD 1996 FSC 1) while considering responsibility of the accused for committing murder of a teen aged girl had observed that absence of post-mortem report or non-holding post mortem of deceased was not consequential and was not under any requirement of law. Relevant observations are thus:-- "

12. The plea that the appellant cannot be legally held guilty of Qatl-i Amd punishable under section 302(b), P.P.C. as the autopsy was. not conducted of the dead body and the cause of death was not got ascertained from medical expert/doctor may now be attended to.

13. It is true that in this case autopsy of the dead body was not conducted for the reason that the poor girl was done to death at a place which is situated at a distance of 140 miles from Tehsil Mashkay where the murder was first reported through one Roozy Khan but for three days none from the Tehsil or Levies reached the spot. Obviously the dead body could not be retained for all this period and had to be buried. Tehsildar Mashkay reached the spot after three days to inform the bereaved family that the place of occurrence does not fall within his jurisdiction and the murder is to be reported to Tehsildar Baisima located at a distance of eighty miles. This situation of the place of occurrence and the circunrstances brought on record explains the delay in lodging F.I.R. and in not having the post-mortem examination conducted. The details of the injures found on the dead body coupled with the description of the injuries caused with stick on a teen-aged girl given in the judicial confession EXlI.P5-A form sufficient basis for the conclusion that death occurred on account of the injuries caused by the accused-appellant. In the circumstances, we are inclined to hold that absence of report of post-mortem or non-holding of the post-mortem of the dead body is inconsequential in this case as law does not require that the dead body of the murdered person must necessarily be produced. If that is taken as a necessary requirement then in many situations e.g. when the body found is not recognizable at all or when the dead body after the murder is made to disappear, the offence of murder/Qatl-i Amd can never be established. So all that is necessary is that the death of a particular person should be established, In support of this view reference may be made to Rasool Bakhsh and 7 others v. The State 1976 PCr.Ld

301. Moreover, if the Court is satisfied that murder has been committed and that the accused has committed the murder, the sentence should be determined upon the gravity of the offence irrespective of the circumstances whether the body had or has not been discovered. Pam Nath and others v. King-Emperor AIR 1926 Oudh. 234(DB), and Munda v. Emperor AIR 1931 Lah. 25(DB) For the reasons given above we agree that the learned trial Court has rightly appreciated the evidence on record and concluded that the prosecution has been able to establish the guilt of the accused-appellant beyond reasonable shadow of doubt. The findings that the accused is found to have committed Qati-i-Amd of Mst. Ganj Khatoon punishable under section 302(b), P.P.C. and has committed robbery by taking away eight sheep and two goats after murder of Mst. Ganj Khatoon are, therefore, confirmed. The learned trial Judge has, however, erred in observing that offence of robbey found to have been established under section 392 P.P.C., as in this case hurt was caused while committing robbery and as such the offence made out fell under section 394, P.P.C. The modification cannot be directed at this stage, and even otherwise the conviction under section 392, P.P.C. need not be altered as the appellant has already been adequately punished for the offence of robbery by awarding sentence of imprisonment for ten years and a fine of Rs.50,000 or in default, therefore, to further undergo two years R. 1.

15. It may be seen that case-law relied upon by learned counsel for parties has been discussed above. We have thoroughly compared and scrutinized the ratio decidendi in afore-quoted reported judgments and relevant law. We cannot subscribe to the observations which may suggest that failure to conduct post mortem would demolish the prosecution case. Obviously there would be anumerous situations when post-mortem may not even be conducted. In various parts of the country on account of long-standing customs and established traditions tribesmen do not allow post-mortem of the deceased. Thus, keeping in view all the relevant factors and law, we are pursuaded to hold that in cases where prosecution through convincing evidence can establish that death was immediate, proximate and direct cause of injures sustained without being any element of negligence or other intervention, the non-performance of post mortem would not be fatal.

16. In the instant case, it is quite manifest that appellant who was driving Bus No. 1813/LHP rashly and negligently struck against deceased (Zaheer Altaf) son of complainant causing his instantaneous death. There is nothing which may lead to any different conclusions. Testimony of the prosecution witnesses and all attending circumstances clearly establish that death of Zaheer Altaf was direct cause of the injury by. striking of bus. Therefore, mere failure to conduct the post-mortem of deceased was totally irrelevant and immaterial, for proving cause of his death. The Courts below were rightly satisfied on the evidence brought on record about appellant's involvement for the commission of offence alleged against him. For the above reasons, we do not find any substance in the appeal, which is consequently dismissed. N.H.Q./A-81/S Appeal dismissed.