P L D 1959 (W (PLP)

MASUD AHMAD, J.-Said Amin appellant has been convicted under section 302 of the Pakistan Penal Code, for the murder of Mushtaq ,Ahmad and has been sentenced to transportation for life. He has filed this appeal against his conviction and sentence.

2. The prosecution case was that the appellant and Mushtaq Ahmad deceased were both employed in the Batala Engineering Company and used to work in the premises of the Company, situated at Badami Bagh. On the 30th May 1557, the General Manager of the Company called Abdul Rashid P.W. and inquired from him as to whether he had asked certain workers, including Said Amin appellant, to vote in favour of certain persons who had set up a Workers' Union, in opposition to the official Union of the workers of the Company. Abdur Rashid P. W. denied this allegation, and on being told that that information had been conveyed to the Company by Said Amin appellant, went to the place where the latter was working and inquired from him, as to why he had made such an allegation. Said Amin appellant denied having conveyed any such information to the Company and started abusing Abdur Rashid P. W. Mushtaq Ahmad deceased came there and asked the appellant to leave that place. Upon this, the appellant picked up an iron-bar and tried to attack Abdur Rashid P. W., with it. He also started abusing Mushtaq Ahmad, but the latter disarmed the appellant. All these three persons left for their respective places, where they used to work. The appellant, however, followed Mushtaq Ahmad to that place and when the two were near each other, the appellant took out a knife and started inflicting injuries, on him, with it. Mushtaq Ahmad, on being so injured, ran towards the dispensary of the Company, where Dr. Abdul Hamid P. W. was present. This doctor rendered first aid to Mushtaq Ahmad, but considering his case serious, immediately sent him to the Mayo Hospital, for treatment. Before his departure, Mushtaq Ahmad told Dr. Abdul Hamid the name of the appellant, as being his assailant.

3. In the meantime, the appellant, who was trying to escape, was given a chase by Muhammad Sadiq and other persons and was apprehended by them. The knife which the appellant was carrying in his hands was also taken possession of by those per sons. In the scuffle Muhammad Sadiq received an injury on his right elbow. The appellant was then produced before A. S.

1. Abdul Hamid, who happened to be present in the premises of the Company. That officer arrested the appellant and also took possession of the blood-stained knife. This weapon; on being sent to the Chemical Examiner was found to be stained with blood. Scrapings from it were sent to the serologist, who reported that the blood found therein was of human origin.

4. On reaching the Mayo Hospital, Mushtaq Ahmad was medically examined by Dr. Muhammad Sanaullah P. W. at 1-45 p.m. External examination revealed that Mushtaq Ahmad had an incised wound, 2 " x 1 ", spindle-shaped, on the left side of the abdomen. The omentum was protruding out of this wound. The patient was operated upon and, on the abdomen being opened the following injuries were found:- (1) A tear, " long, in the stomach, 2" away from the greater curvature. (2) A tear " long, in the transverse colon. Other organs were found to be uninjured. These injuries were closed by a double row of sutures, and the abdomen was also closed, after performing the operation. In the opinion of this doctor these injuries had been caused by a sharp-edged weapon and were dangerous to life. He also expressed the opinion that they could be caused by the knife, Ex. P.

1. On being admitted into the hospital, the patient was not found to be in a fit condition to make a statement. Therefore, until his death, which took place two days afterwards, namely, on 2nd June 1957 at 1-45 a.m., his dying declaration could not be recorded.

5. The post-mortem examination on his dead body was conducted by Dr. Abual Hassan Syed P. W. on the 2nd June 1957, at 3-30 p. m. He found on the dead body one stab wound and three surgical wounds. On dissection the abdomen was found to have been repaired and the omentum ligatured. The transverse colon also showed a repaired wound. On removing the stitches, this wound was found to be 1" x ". In the stomach also was found a stitched wound above the greater curvature. The heart and the kidneys were found to be enlarged. The liver was also found to be enlarged and jaundiced. In the opinion of this doctor death resulted from haemolysis following blood transfusion which was given as a part of the treatment of the abdominal injury. He also expressed the opinion that the stab wound was a fatal injury, in the ordinary course of nature.

6. The same doctor medically examined Muhammad Sadiq P. W. on the 31st May 1957 and found on him an incised wound, 1" x 1/8" x 1/10", with a tail " long, towards the inner side. In the opinion of the doctor, this injury was simple in nature and had been caused by a sharp-edged weapon, within a period of 24-36 hours of the time of the examination.

7. The appellant, when examined in the trial Court, denied his guilt and gave the following version of the occurrence :- "Rashid was the first to abuse me and I asked him to desist. I simply returned the abuse. Rashid started grappling with me. Sadiq P. W. also joined in giving me the beating. They gave me fist blows. The worker (s) collected. Mushtaq was also one of them. He separated us. Mushtaq tried to catch hold of me and I could make out that he was siding with Rashid and Sadiq. Then 1 went to the place where I worked. Rashid, however, continued abusing me. I could bear it no longer and returned the abuse. Rashid picked up an iron lever and struck me. I picked up an iron bar to ward off the attack. Rashid then took out a knife and advanced towards me. Mushtaq caught hold of me. Rashid aimed a blow with the knife and it fell on Mushtaq who was trying to catch hold of me."

8. No evidence in defence was, however, led by the appellant.

9. Besides the three doctors, the principal prosecution witnesses, examined at the trial were Muhammad Sadiq (P. W. 13), Khushi (P. W. 14), Sardar Muhammad (P. W. 15) and Abdur Rashid (P. W. 17). These witnesses claimed to have seen the occurrence and gave evidence which was substantially in accordance with the prosecution story. Doctor Abdul Hamid (P. W. 12), one of the three doctors, was examined to depose to the alleged dying declaration of Mushtaq Ahmad made by the deceased in his presence. He stated that the deceased told him that he had been assaulted by Said Amin appellant with a knife. The trial Court accepted as correct the testimony of all the witnesses and holding the appellant guilty of the offence complained of, convicted him under section 302 of the Pakistan Penal Code.

10. So far as the defence version is concerned, as stated already, the appellant did not produce any evidence in support of it. On the face of it, the defence version appears to be most improbable and cannot be accepted as correct. The occurrence took place during day time and it is unbelievable that Abdur Rashid P. W., while attempting to assault the appellant, could have accidentally wounded the deceased and inflicted such a serious injury on him. Moreover, the prosecution evidence was to the effect that after injuring the deceased the appellant tried to run away and was pursued and captured. If he had not injured the deceased, he would not have run away after the occurrence and would not have been carrying a knife, stained with human blood, in his hands when he was trying to escape from that place. All these circumstances, in our opinion, clearly show that there was no truth in the defence version and that the deceased was not injured accidentally at the hands of Abdur Rashid P. W.

11. With regard to the evidence of the four eye-witnesses of the occurrence, which has been believed by the trial Court, it was contended that three of them were working under the fourth, namely, Abdur Rashid (P. W. 17), and, therefore, with a view to save the latter, they falsely deposed against the appellant. It was further contended that a number of other persons were present at the time of the occurrence and, therefore, it was the duty of the prosecution to have examined them. There can be no doubt that Muhammad Sadiq, Khushi and Sardar Muhammad P. Ws. admitted that they were working under Abdur Rashid P. W., but this fact alone cannot be considered to be sufficient to reject their testimony as being untrue. Abdur Rashid P. W. was as much an employee of the Batala Engineering Company as these witnesses and the mere fact that these witnesses were working under him did not mean that they were under his influence. Moreover, if these witnesses had not told the truth, the easiest thing for the appellant was to have examined other persons, who had witnessed the occurrence, if he was so sure that they would tell a different story. It was, in our opinion, not the duty of the prosecution to have examined all the persons who had witnessed the occurrence and merely because those others who had seen the B occurrence were not examined, the evidence of those witnesses who were examined cannot be rejected. The trial Court, in our opinion, acted rightly in believing the testimony of these witnesses and in holding the appellant guilty of inflicting an injury with a knife on the deceased. We do not, however, agree with the trial Court that in inflicting the injury on the deceased the accused committed the offence of murder.

12. A reference to the evidence of Doctor Abul Hassan Syed (P. W. 2), who conducted the post-mortem examination on the dead body, would show that Mushtaq Ahmad's death occurred from haemolysis following blood transfusion, which was giving to him as a part of the treatment for the abdominal injury. The evidence of the doctor further shows that the stab wound was sufficient to cause death in the ordinary course of nature, but that evidence does not definitely establish that Mushtaq Ahmad would have necessarily died as a result of that injury.. As according to the medical evidence, death was not due to the stab injury, but resulted from haemolysis, the question arises whether Mushtaq Ahmad died as a result of an act done by the appellant, so as to bring his case within the purview of section 299 of the Pakistan Penal Code, which is worded as follows :- "Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culp able homicide."

13. The language of this section 'clearly indicates that the offence of culpable homicide can be committed only if death is caused by the doing of an act with the requisite intention or knowledge. If death is not caused by' such an act, but some thing else intervenes between the doing of the act and death of the person concerned, it is obvious that the offender would not be guilty of the offence of culpable homicide, but he might be guilty of some other offence. There may, however, be cases where though death is not the direct result of the doing of an act and something else intervenes, that something is the direct result of the act of causing the injury in which case, the person who has done that act would be guilty of the offence of culpable homicide, even though death may not have taken place if that thing had not intervened. For instance if as a result of an injury, peritonitis or tetanus sets in, and the injured man dies, the person who cause the injury would be guilty of the offence of culpable homicide, if the act of causing the injury was done with the requisite intention or knowledge and it would be no defence to say that death was not due to the act complained of, but was due to some other cause, because that cause was the direct result of the injury. There may, however, be other cases where death is not the direct result of an injury and something else may intervene, but that something is not the direct result of the injury. For instance, an injured person, as a result of wrong treatment in the hospital dies, death, in such a case, would clot be the direct result of the injury, but of the wrong treatment, and hence the provisions of section 299 of the Pakistan Penal Code will have no application.

14. To support our view-point, we propose making a referene to a few of the cases in which somewhat similar questions arose. In Nga Bau v. Emperor (A I R 1937 Rang. 429), it was held that when the disease which actually causes death is meningitis, peritonitis, tetanus pneumonia, etc., and it is a 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 this case, the skull of the deceased had been cut by a sharp-edged weapon, and though the injury was not necessarily fatal, the deceased developed meningitis caused by septic matter coming into the brain through the injury and, therefore, death was caused. The Court, therefore, came to the conclusion that the disease which caused the death being the natural and the probable result of the injury, the person who inflicted that injury must be held liable for the consequences of his act.

15. In Fazla and others v. Emperor (A I R 1928 Lah. 851 (2)) it was held that if a person receives grievous injuries and as a result of those injuries pneumonia supervenes and the victim dies, the perpetrators of the attack upon him are guilty of murder. The deceased, in this case, died ten days after the receipt of the injuries and, on evidence, the Court came to the conclusion that pneumonia, which was the cause of death was incidental to those injuries and, therefore, the Court rightly found the persons, who had inflicted those injuries, guilty of the offence of murder.

16. In Chanan Das v. Emperor (A I R 1934 Lah. 368), the same Judges, who decided Fazla and others v. Emperor, came to a different conclusion and held that the offence complained of fell under section 326 and not under section 302 of the Penal Code. The medical evidence, in that case, had revealed that the injuries were not necessarily sufficient to cause death, in the ordinary course of nature, and though death resulted from meningitis and compression of tile brain, that had no, direct connection with the injuries caused.

17. In another case of the Lahore High Court, as Lal Singh and others v. Emperor (A I R 1938 Lah. 31), gangrene had set in, as a result of the injury and caused the death of the deceased. Following Fazla and others v. Emperor, it was held that the person who had caused the injury was guilty of the offence of murder.

18. 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 p 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.

19. Coming now to the facts of the present case, we find that according to the medical evidence death resulted from haemolysis, which followed transfusion given to the deceased as a part of treatment of the abdominal injury. That evidence also reveals that the stab wound was fatal, in the ordinary course of nature, but as the wound was not necessarily fatal, if there had been no haemolysis, which followed blood transfusion, the deceased might have been still alive. Haemolysis has been described in the Encyclopaedia Britannica, 1.950 Edition, Volume 3, page 741, in the following words :- "The passing of water into the corpuscle may take place on such a scale as ultimately to burst the membrane, the solution of haemoglobin previously enclosed escapes into the surrounding fluid, and the structures which contained the haemoglobin are left as `shadows'. This process is known as `taking' or haemolysis which may be induced by the addition of distilled water to blood. The corpuscles may be ruptured in other ways, by freezing and thawing, by the addition of saponin, or bile salts. More remarkable is the fact that if the blood corpuscles of one species are injected into the vessels of another they are destroyed, their haemoglobin being liberated. This phenomenon is not due to osmotic or similar changes, but to some specific substance in the plasma which attacks the foreign corpuscles. That substance is called a haemolysin. It is one of several substances on which the immunity of the body from disease depends."

20. The words underlined by us are significant and indicate that if blood from a different species is injected, haemolysis can set in. In the present case we do not know why haemolysis had set in. It might be that some foreign matter was injected in the body at the time of transfusion, or it might be that the blood, which was injected, was of the wrong species, or- of a person from a wrong group. Whatever may have been the case, the fact remains that if haemolysis had not set in, the man might have been still alive. We cannot, therefore, be certain that death was due to an act committed by the appellant, because so far as we have been able to judge, haemolysis was not the direct, or even the proximate result of the injury. In these circumstances, section 299 of the Pakistan Penal Code had no application, and hence the appellant could not be held guilty of the offence of murder. In our opinion, his offence fell within the purview of section 307 of the Pakistan Penal Code, because he did intend to cause the death of the deceased. His conviction should, therefore, have been under the last-mentioned provision of law.

21. For reasons given above, we accept this appeal in part, convert the conviction of the appellant from one under section 302 of the Pakistan Penal Code, to one under section 307 of the Pakistan Penal Code, and reduce his sentence from transportation for life to a sentence of ten years' rigorous imprisonment.

22. The learned counsel for the appellant brought it to our notice that the appellant is suffering from tuberculosis and prayed that we may recommend his detention in a sanitorium. The appellant may, if so advised, make a request, for this purpose, to the Government, as this is a matter with which this Court is not directly concerned. K. B. A. Appeal partly accepted.