1989 PLP 167 (MLD)

4. The incident in which the appellants, according to the prosecution, caused injuries to Basharal deceased occurred at about 5.30 p.m. on 20‑9‑1983 in Chak No. 129/S.B., within the limits of Police Station Sillanwali and was reported at the police station at 1 a.m. on 21‑9‑1983 by Liaquat Ali P.W. 6, the distance between the place of occurrence, and the police station being 7 miles, Bashaarat deceased was a maternal uncle of Liaquat Ali, P.W. ?

5. The prosecution case was as follows:‑ Some 8 years before this incident, Basharat deceased had caused injuries to Aslam, a brother of Muhammad Akram and Muhammad Ashraf appellant, Basharat deceased was challaned under S. 307, P.P.C. but was acquitted.

6. At about 5.30 p.m. on 20‑9‑1983, Liaquat Ali P.W. and Basharat deceased were returning to their village carrying fodder on their heads. When they reached the sugarcane crop of one Nazir, the appellants, all armed with Takwas, emerged from the sugarcane crop. Akram appellant clasped Basharat deceased and felled him on the ground. Iqbal appellant gave him a tokah blow on the heel of his right foot. Akram gave him a Toka blow on the left leg cutting it off. Ashraf appellant gave him a Toka blow on the right arm and then Iqbal gave a Toka blow on the right hand of the deceased. Then all the three appellants gave various blows oil various parts of his body. Basharat deceased and Liaquat Ali raised alarm which attracted Yousaf and Amir Ahmed P.Ws. On seeing them the appellants fled.

7. Liaquat Ali, Yousaf and Amir Ahmed P.Ws. removed Basharat deceased to the village, hired a wagon and took him to Civil Hospital, Sargodha. Leaving: him their, Liaquat Ali went to the police station and made F.I.R. Exh. P.E. He also produced the blood‑stained clothes of Basharat deceased before the police and they were taken into possession vide memo Exh. P.F. Basharat deceased way medically examined by Dr. Capt. Saeed (P.W. 11) who was then posted as Medical Officer, DHQ Hospital, Sargodha. He found as many as 24 incised wounds mostly on the legs and arms of Basharat. At that time, Basharat was in a state of severe shock, he was pulseless and anaemic. Of the injuries, of Basharat, 6 were declared grievous. They were (1) incised wound 3 cm x 1 cm x bone cut on outer side of right forearm with fracture of radius, (2) Incised wound 7 cm x 2 cm bone deep between the thumb and right index finger with fracture of lower end of first metacarpal bone, (3) Incised wound 5 cm x 1‑1/2 cm x ulna bone fracture a on back of left forearm, (4) Incised wound 8‑1/2 cm x 2 cm x bone fracture on back of left forearm; (5) Incised wound 8 cm x 2 cm tenden cut with dislocation and foot drop on back of right ankle joint, and (6) Multiple incised wounds with total amputation of left foot with ankle joint at level above ankle joint. The rest of the injuries were simple. All these injuries had been caused with sharp‑edged weapon within a duration of about five hours. Ex. PT is the carbon copy of the medico‑legal report.

8. Basharat died in the hospital on 8‑10‑1983, and the same doctor performed the autopsy on his dead body on the same day. He noticed the sane injuries as have been mentioned above. All the injuries had by that time healed except the abovementioned grievous injuries. On dissection, the Doctor found a big clot in the pulmonary trunk at the level of bifurcation obstructing bosh pulmonary arteries. Right side of heart was full of blood and the left side was empty. In the opinion of the doctor, death was due to pulmonary embolism caused by prolonged confinement in the bed which in turn was due to injuries No‑20 and 23 namely the incised wound 8 c.m. x 2 c.m. tenden cut with dislocation and drop on back of right ankle joint and multiple incised wound with total amputation of left foot and was sufficient to cause death m the ordinary course of nature.

9. In cross‑examination, the doctor said that none of the injuries on the person of Basharat was on any vital part of the body and that death was not a direct result of the injuries and death had occurred due to pulmonary embolism". The doctor was also of the opinion that "there was every possibility of the deceased surviving in spite of the injuries, if he had not developed pulmonary embolism."

10. The appellants were arrested on 26‑9‑1983. According to the prosecution, they had, on 30‑9‑1983, led to the recovery of bloodstained Tokas P.4, P.5 and P.6. They were taken into possession vide Memos. Ex. PG, PH and PJ. The recoveries were witnessed by Dildar Muhammad P.W. 9 and Alam Khan A.S.I. P.W.

10. It may be said at once that it is hard to believe that they had preserved the Tokas besmeared with blood for so many days for being used against them as evidence.

11. At the trial, the prosecution called 11 P.Ws including Alam Khan S.I. PW(10) and Dr. Capt. Saeed (PW.11). The prosecution case however mainly rested upon the testimony of Liaqat Ali P.W. 6 and Amir Ahmad P.W. 7 who gave the eye‑witness account of the occurrence. Muhammad Yousaf who was cited as an eye‑witness was given up. The evidence of the remaining prosecution witnesses was largely of a formal character.

12. In their statements under section 342 Cr.P.C. the appellants denied having had nothing to do with the incident. They also denied the recoveries of Tokas from them. They did not lead any evidence in defence. They did not give evidence on oath either.

13. There is no dispute between the prosecution and the defence about the place and time of occurrence. Liaqat Ali and Amir Ahmad P.Ws. consistently stated that the appellants had emerged from the sugarcane crop and attacked Basharat deceased and had caused him injuries with their Tokas. Liaqat Ali was maternal-nephew of Basharat deceased and may be said to be an interested witness on account of the previous incident but Amir Ahmad P.W. was a completely independent and disinterested person. Even Liaqat Ali PW had no reason to falsely implicate Iqbal appellant. As regards Amir Ahmad PW, he had no motive to depose falsely against any of the appellants in a capital case like this. A It was said that the presence of Liaqat Ali PW at the time of occurrence was doubtful, for if he were present, he too would have been caused injuries and in any case he would not stand as a passive spectator. The evidence, however, is that he was alone with Basharat deceased, when the appellants suddenly fell upon him. As all the appellants were armed with such deadly weapons as Tokas, Liaqat Ali could not dare intervene. I, therefore, see no reason to disbelieve Liaqat Ali, and Amir Ahmad P.Ws. or to doubt their presence at the time of the occurrence.

14. Learned counsel for the appellants argued that as the death of Basharat was not the direct result of the injuries, the learned trial Judge was wrong in convicting the appellants under section 302 of the P.P.C. In this connection, he also pointed out that all the injuries were on the legs and arms of Basharat and this shows that the appellants did not intend to kill him. In his view therefore, the offence falls under section 326 P.P.C. Learned counsel for the complainant, on the other hand, relied upon Lal Singh v. The Emperor 1939 P Cr. L J 265 to contend that as the pulmonary embolism was caused by prolonged confinement on account of the injuries, the appellants were rightly convicted under section '302 P.P.C. In any case, so argued the learned counsel for the complainant even if the offence falls under section 326 of the P.P.C. the appellants deserved the maximum punishment under that section.

15. In Lai Singh's case, as a result of the injuries, a gangrene had set in and that was the immediate cause of death. It was held that the question was more or less of academic interest and even if the offence committed fell under section 326, P.P.C., the appellant in that case deserved nothing less than transportation for life. In that case, it should be noted, the deceased had suffered 8 incised wounds and both of his legs had been badly smashed.

16. As has been seen above, pulmonary embolism which had resulted in the death of Basharat was caused by prolonged confinement in bed and was not the direct result of the injuries. As was said by the doctor, Basharat deceased might have survived, "in spite of the injuries if there had not developed pulmonary embolism:" I, therefore, agree that the offence committed did not fall under section 302 of the P.P.C. and that it more properly fell under section 326 of the P.P.C.

17. In the result, the conviction and sentences under section 302, P.P.C. read with section 34 of the P.P.C. are set aside, and the appellants are convicted under section 326 read with section 34 of the P.P.C. The appellants Muhammad Akram and Muhammad Ashraf had the motive; most of the injuries including the one which had resulted in the total amputation of the left foot at the level above ankle joint were caused by them. In their case, the ends of justice will, in my opinion, be sufficiently met if they are sentenced to R.I. for ten years and a fine of Rs. 2,000 or in default R.I. for six months each. I order accordingly. Iqbal appellant had no motive of his own to cause injuries to Basharat. He has been in jail since his arrest i.e. 26‑9‑1983. I would, therefore, reduce his sentence to imprisonment already undergone. He shall also pay Rs. 2,000 as fine or suffer R.I. for six months. The appellants Muhammad Akram and Muhammad Ashraf will be entitled to have their period of detention in jail during the trial counted towards their sentence. SA./M‑1042/L???????????????????????????????????????????????????????????????????????????????????? Sentence altered.