1969 PLP 641 (SCMR)

The spleen was normal in size and showed a tear three inches long on the costal surface almost half way through its thick ness about the middle horizontal. The rest was healthy. Death in my opinion was dug to shock and internal and external haemorrhage as a result of rupture of the spleen and fracture of the skull due injuries Nos. 2 and 1, respectively by blunt weapons, which in ordinary course of nature were sufficient to cause death. The rest of the injuries were inflicted by a blunt weapon and were simple in nature. Probable time that elapsed between injury and death was within half an hour of the fatal injuries and that between post‑mortem examination was within 24 hours."' Counsel for the appellant contended before us that it could not be stated with certainty that the head injury alleged to have been inflicted by the appellant was necessarily the cause of his death and that consequently the appellant could not be convicted under section 302 of the Penal Code. As regards this matter the Sessions Judge observed as follows:‑ "Pehlwan accused ft appears, gave a blow with an iron shod (Lathi) with a considerable force . . . . . . The spleen showed a tear 3" long on the costal surface almost half way through its thickness about the middle horizontal." While the High Court recorded its findings in the following words :‑ "The injury on the head is definitely attributed to Pehlwan, unanimously by the witnesses. He may have exceeded the scope of the common object of the unlawful assmebly in hitting the deceased on the head such a terrible blow as caused his death. The act of Pehlwan would therefore, be an individual one for which he alone would be held responsible. The others can be found guilty only under section 325 read with section 149, Pakistan Penal Code. Pehlwan must be however, credited with the intention of causing such an injury as would be suffici ent in the ordinary course to lead to death and his action therefore would amount to murder and be punishable under section 302, Pakistan Penal Code. In view of the medical evidence, the evidence of P. W. 5 to the effect that after the occurrence the assailant proclaimed "that he had killed Subedar Saif Ali", the unanimous opinion of guilty given by the assessors, I am unable to say that the injury inflicted on the head of the deceased was not intentionalor was not sufficient in the ordinary course of nature to cause death. One must be presumed to intend the natural consequences of his act. The intention is to be gathered from the nature of the injury caused and the conduct of the assailant and the surrounding circumstance of the case. No witness need be examined to depose to the workings of the mind of the doer of the act. I would dismiss the appeal. SHAHAHUDDIN, J.‑‑I agree with the conclusions reached by my learned brother Cornelius. The learned Judges of the High Court appear to have overlooked the fact that according to the medical evidence death was caused by haemorrhage resulting from both the injury to the head and that to the spleen. In fact the doctor puts the injury to the spleen first. His statement in this respect is "death in my opinion was due to shock and internal and external haeomorrhage as a result of the rupture of the spleen arid fracture of the skull due to Nos. 2 and respectively by blunt weapons which in the ordinary course of nature were suffici ent to cause death". He no doubt referred to both the injuries as fatal but there is nothing in his evidence to support the observ ation of the learned Judges that there was only one fatal injury or that the injury on the head was caused by a terrible blow. There was a fissured fracture, but no injury to the brain. The blow must have been dealt with a fair amount of force but from the description of the injury it does not appear that it was by itself necessarily fatal. The doctor should have been questioned in respect of each of these injuries individually. However, the possi bility of the learned Judges not having made a distinction bet ween the appellant and the other accused in inferring the intention or knowledge accompanying the act, if they bad taken the entire medical evidence into consideration cannot be excluded. Their finding was that the common object was to cause grievous hurt and not to kill. That being so, and instances of persons sustain ing injuries on the head of the kind in question having recovered not being rare, a doubt as to the degree of knowledge that can be ascribed to‑ the appellant does reasonably arise, and benefit of it should, I think, be given to the appellant. That hitting on the head is a dangerous act there can be no doubt, but the extent of danger is commensurate with the amount of force used. In this case there was only one blow and I do not think it can be said to have been a terrible blow. I think the blows inflicted in the region of the spleen must have been dealt with great force as the spleen which was ruptured was healthy and not diseased. Taking the entire circumstances into consideration I am inclined to the view that on the finding of the High Court regard ing the common object, the offence committed by the appellant is the same as that of which the other accused were convicted, though in the measure of punishment a distinction seems to be called for in view of the leading part played by the appellant. I would, therefore, concur in the order proposed by my learned brother Cornelius. CORNELIUS, J.‑In my opinion, this appeal should be allowed to the extent that the conviction of the appellant Pehlwan under 302, P.P. C. should be altered to section 325 read with section 149, and in place of the sentence of death, there should be substituted a sentence of seven years' rigorous imprisonment. It seems to me that such a conclusion is unavoidable upon the argument accepted by the Lahore High Court. Pehlwan and four others were tried on charges under sections $02, 149 and 147, P.`P. C. One of the accused persons Allah Ditta by name was separately charged for an offence under section 352, P. P. C. committed in the course of the same transaction. The salient features of that transaction were an attack on the deceased Saif Ali carried out by Pehlwan, Muhammad Sadiq, Muhammad Yusaf and Sarsa Khan, armed with lathis, who were incited by the said Allah Ditta, who was unarmed and struck no blow. Saif Ali had given offence to the accused persons who are related among themselves, by joining with three other persons in making an assault on Pehlwan and Sarsa accused and two sisters of Pehlwan one of whom is the mother of Sarsa. There was a case, in which Saif Ali was acquitted some four months before the present occur rence. Pehlwan had moved to have the acquittal set aside without success. The present assault was clearly a retaliation for the earlier assault, and there need be no hesitation in accepting the view of the High Court that the common object of the assailants in the present case was the same as that in the previous case, namely, at the most to cause grievous hurt with blunt weapons. In holding this view, the High Court reversed the conclusion of the trial Judge that the common object was to kill Saif Ali. The High Court however found it possible to differentiate the case of Pehlwan from that against the other four persons, on the following argument. Like the trial Court, the High Court held Pehlwan responsible only for the initial blow, a lathi blow on the head which brought Saif Ali down, after which he was given blows on the body by the other lathi‑men. The resulting visible injuries were a contused wound of in length, and exposing the skull on the head, 6 lathi marks each 12" in length over the back, a lathi mark 7" in length, over the left buttock, and another lathi mark 6" in length on the left leg. The internal injuries were a fissured fracture 3f long underneath the contused wound on the head and a tear in the spleen going almost half way through the thickness of that organ. The latter injury was obviously the result of the multiple blows delivered on the body at the back. Death ensued in about half an hour, and the doctor who performed the post‑mortem examination declared that the cause of death was "shock and internal and external haemorrhage as a result of rupture of the spleen and fracture of the skull". The doctor was not questioned to ascertain which of the fatal injuries was more imminently dangerous to life. On such experience as I possess, I would be inclined to think that apart from shock, the spleen injury was more likely to have brought about rapid termination of life than the head injury. There was no depression in the skull, or any such smashing of bones as results from a very heavy blow, or a blow with a very heavy weapon. The scalp was no doubt split down to the bone, but the fracture was linear and fissured, and such fractures do not, in my experience, lead to death in the majority of cases. On the other hand, the tear in the spleen, which is a vital organ, was long and deep, and it may be presumed that intense haemorrhage followed the receipt of this injury, such as might be expected to lead to rapid death. The view taken by the High Court of these injuries is mark edly different. It is set out in the following words " . . the five accused were acting in collaboration and they formed an unlawful assembly with the common object of assaulting the deceased. From the fact, however, that only one fatal injury was delivered on the head of the deceased and the remaining injuries were not on vital parts, but unfortunately under them the spleen was ruptured, it may be inferred that the common object of the unlawful assembly may not have been to commit murder. After all, the previous case against Saif Ali deceased etc. was also one under section 325, Pakistan Penal Code and at the most, it may be assumed that the accused wanted to cause grievous hurt to the deceased. The injury on the head is definitely attributed to Pehlwan, unanimously by the witnesses. He may have exceeded the scope of the common object of the unlawful assembly in hitting the deceased on the held such a terrible blew as caused his death." The foregoing passage clearly shows that the High Court regarded the head injury as the "one fatal injury" resulting from "a terrible blow". The learned Judges were inclined to minimise the effect of the rupture of the spleen, which they regarded as "unfortunate". In the view I take, the spleen injury was the more serious of the two, but I would prefer to found the interfer ence with order of the High Court on a different consideration, namely that, although the head is a vital part of the body yet a single blow on the head with a lathi does not ordinarily lead to death, unless it is struck with an amount of force which the results in this case do not indicate, and since both the Courts below have believed that Pehlwan struck no other blow, there is no sufficient reason why his intention in striking the blow should be placed any higher than the intention of the others who participated in the assault. Looking at the matter from a slightly different angle, if it be supposed that Pehlwan had agreed with the others that only such an amount of force should be used as would cause grievous hurt, and that this agreement was made immediately or shortly before the attack, there is no sufficient material provided by the fact of Pehlwan's single blow and the results thereof, for concluding that he had intentionally gone beyond the agreed common object and struck so as to bring about the death of Saif Ali. Regarding his act as an individual act, arid irrespective of the liability for the blows struck at the body, it seems to me difficult to hold that Pehlwan intended Saif Ali's death or to cause any injury sufficient to kill Saif Ali, whereas the others only intended that Saif Ali should suffer grievous hurt. For these reasons, I consider that Pehlwan's criminal liability does not exceed that set by the common object of the unlawful assembly as found by the learned Judges. On this finding, the learned Judges altered the convictions of Muhammad Sadiq, Muhammad Yusaf, Sarsa Khan and Allah Ditta from section 302/149 to section 325/149, P. P. C. and imposed sentences of imprisonment. Pehlwan's similar conviction should in my opinion be similarly altered to section 325/149, P. P. C. but as the leader and the person with the strongest grievance, and being also the one assailant who struck at a vital part, his offence merits a higher punishment which I would fix at the maximum period of imprisonment awardable under section 325, P. P. C. In accordance with the view of the majority, this appeal is allowed to the extent that the conviction of Pehlwan (Pehlwan Khan) under section 302, P. P. C. is altered to section 325 read with section 149, P. P. C. and for the sentence of death, a sentence of seven years rigorous imprisonment is substituted. In all other respects, the appeal is dismissed. Appeal partly accepted.