IBRAHIM Versus State

FAZLUR REHMAN KHAN, J.-- -By the judgment/order dated 4-12-2004, the learned Sessions Judge/Zilla Qazi, Shangla Camp at Swat has convicted appellant Ibrahim under section 302, P.P.C. for the murder of Muhammad Usman and has sentenced him to undergo imprisonment for life and also to pay a fine of Rs.2,00,000 payable as compensation to the legal heirs of the deceased or in default thereof to undergo further 6 months S.I. He has also convicted the appellant under section 324, P.P.C. for an attempted murder of P.W. Hazrat Ali and has sentenced him to undergo 10 years' R.I. with a fine of Rs.50,000 payable as compensation to the injured or in default thereof to undergo further 6 months' S.I. The sentences of imprisonment have been ordered to run concurrently with benefit under section 382-B, Cr.P.C. The above conviction and sentences have been recorded in case F.I.R. No.296 dated 21-11-2002 of Police Station Saidu Sharif, Swat under section 302/324, P.P.C.

2. According to the prosecution version, as contained in the murasila, Exh.PA/1, incorporated in F.I.R. Exh.PA, is that on the day of occurrence, Muhammad Usman, then injured, who later on succumbed to the injury, and his friend Hazrat Ali P.W.12 came to Bazar and after purchasing household articles, were returning to their home. When at about 1645 hours, they reached the spot, appellant Ibrahim, duly armed with a pistol, was already present there and on seeing them started firing at them, as a result of which, the complainant Muhammad Usman received injuries on the right shoulder while P.W. Hazrat Ali on the right cheek and left leg. After firing, the appellant left the spot. In the Murasila, it was stated that the complainant has no enmity with the appellant. However, the latter might have some enmity with injured P.W. Hazrat Ali.

3. The report of the occurrence was made by the complainant to Said Karim, T.O. Mingora, who during the days of occurrence, was posted as IHC in the Casualty Department of Saidu Group of Hospitals. After recording the Murasila Exh.PA/1, he sent the same to the Police Station for registration of the case. After preparing the injury-sheets of the complainant and P.W. Hazrat Ali, he referred them to the Medical Officer for treatment.

4. After registration of the case, the investigation was entrusted to Fazal Akram Khan, A.S.I. (P.W.15).He visited the spot and recovered some blood-stained earth from there. He prepared the site-plan, Exh.PB, sent the blood-stained garments of the complainant and the injured for chemical analysis and on receipt of the reports, placed the same on file. He also recorded the statements of the P.Ws. and then handed over the case file to S.H.O. The remaining investigation was completed by Muhammad Jan Khan, S.I. (P.W.10) and on completion of the investigation, Sardar Hamid Khan, S.H.O. (P.W.7) submitted challan against the accused in Court.

5. Dr. Ijaz Ahmad, M.O. (P.W.8) had examined P.W. Hazrat Ali on 24-11-2002 and while examining him, he found the following on his person:-

"(1) Inlet wound on right cheek. Outlet wound on posterior mastoid region.

(2) Inlet wound on left inguinal region. Out let wound on left buttock. (Distal pulses of the left leg reduced at the foot). (Left foot drop as seen by Neuro Surgeon in Peshawar Hayat Medical Complex). Injury to the facial nerve which cause the paralysis of the associated area (seen by ENT Surgeon Peshawar).

Audiogram shows right sensory hearing loss. As reported by ENT Surgeon, Peshawar.

Nature of injuries; Grievous.

Kind of weapon used. Fire-arm."

According to his statement, keeping in view the serious condition of the patient, the latter was referred to Medical Complex, Hayat Abad.

6. On the same date, he also examined Muhammad Usman, then alive, and found the following on his person:--

"Inlet wound on right arm (detoid) through axilla injury to spinal cord.

Bullet present in left side chest.

Parapledia positive.

The patient is paraplegic (T 3).

Humerus fracture.

Nature of injuries: Grievous.

Weapon used: Fire-arm.

According to his statement, keeping in view the serious condition of the patient, the latter was referred to LRH, Peshawar.

7. After re-admission, Dr. Aziz Ahmad, Assistant Professor (P.W.6) examined Muhammad Usman, deceased, and according to his statement:--

"The above named patient was admitted to my ward through Casualty Department on 1-6-2003 as a case of old Fire-arm injury, bed sores, bloody dysentery, anemia with Haemoglobin of two gm per cent. He received treatment along with 6 units of blood transfusion. He improved and was discharged from Hospital on 7-6-2003. However, he worsened again and re-admitted to the- ward on 8-6-2003 in morning, in shocked condition. He was given all available treatment but expired later on in evening on same day on 8-6-2003.

The patient was bed ridden since his fire-arm injury six months back and had become very weak, emaciated, anemic and dehydrated. Thus his serious condition, dysentery, anemia and shock were INDIRECT result of his previous injury."

8. On submission of challan, the appellant was charged under section 302/324, P.P.C., to which, he pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 17 witnesses, out of whom, P.W. Fazal Akram Khan, A.S.I., has mainly investigated the case while P.Ws. Dr. Ijaz Ahmad and Dr. Aziz Ahmad had examined the two injured, whose statements have already been reproduced earlier, whereas Hazrat Ali, Rehman Ali, Anwarul Haq (P.W.12 to 14) and Hazrat Said (P.W.16) had furnished an eye-account of the occurrence while the remaining are formal witnesses. On conclusion of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. However, he denied the charge against him but neither examined himself as his own witness under section 340(2), Cr.P.C. nor produced any evidence in defence. On appraisal of the evidence on record and after hearing arguments from both sides, the appellant was found guilty, as such, convicted and sentenced as stated earlier.

9. We have heard the learned counsel for the parties and have also perused the record of the case.

10. In support of the appeal, the learned counsel for the appellant contended that out of the eye-witnesses, the two P.Ws. namely P.W. Rehman Ali is the brother of injured P.W. Hazrat Ali while P.W. Anwarul Haq is the brother of the deceased and they being not only highly interested witnesses but their names do no appear in the F.I.R. and if their evidence is excluded from consideration, then the remaining evidence on record is not sufficient to maintain conviction. This argument of the learned counsel for the appellant is without force because if the evidence of both P.Ws. Rehman Ali and Anwarul Haq is excluded from consideration, even then there is other sufficient evidence on record in the shape of oral evidence of P.W. Hazrat Ali and Hazrat Said (P.W.6) and the F.I.R. Though the name of P.W. Hazrat Said also does not find mention in the F.I.R. but he is the co-villager of the parties, who has stated in his statement that on the report of the fire shots, he was attracted to the spot and saw the appellant running. He appears to be an impartial witness and his evidence inspires confidence. If the evidence of such a witness inspires confidence, non-mentioning of his name in the F.I.R. is no ground for not believing him. P.W. Hazrat Ali has received injuries on the spot and his presence on the spot could not be doubted. He has given a consistent and also confidence inspiring evidence. Similarly, the F.I.R. was lodged by the deceased, who at that time was in his full senses. He had received grievous injury, as such, he was under the eminent apprehension of death and could not be expected to tell a lie, as such, the F.I.R. lodged by him could be safely considered as dying declaration and by taking into consideration the ocular version furnished by P.W. Hazrat Ali and Rehman Said coupled with the dying declaration, no doubt is left that the appellant has committed the offences.

11. It was further argued that there is a material contradiction in the site-plan and the medical evidence on record. By explaining this argument, the learned counsel for the appellant contended that at the time of occurrence, the appellant has been shown at Point No. 3 which is at the back of Points Nos. 1 and 2 in the site-plan, where at the time of occurrence the two injured have been shown but according to the medical evidence on record the two injured had received injuries from the front. In support of his this argument, he placed reliance on (1) 1984 SCMR 545 and 782, (2) 1999 SCMR 172, and (3) 1995 PCr.LJ 765 and 1365. This argument is without force. There is no cavil with the legal proposition that where there is a material contradiction between the ocular evidence and the site-plan, the site plan is to be given preference but in the present case the contradiction pointed out is not only a minor one but also plausible because a human being at the time of firing cannot be expected to stand like a statue but on seeing the assailant and apprehending loss at the hand of the latter, he could be expected to turn his face, as a result of which, injuries could be caused to him from the front instead of back.

12. It was also argued by the learned counsel for the appellant that the deceased Muhammad Usman was admitted in the hospital on 24-11-2002 and was discharged on 30-11-2002 or in other words after 7 days of the receipt of injury but again was admitted on 1-6-2003, where he died on 8-6-2003 or in other words, he was admitted in the hospital after 6 long months, therefore, his death was not the direct result of the injury, as such, the appellant could be convicted at the most for an offence under section 324, P.P.C.

The question as to whether as per medical evidence on record that the death of the deceased was the indirect result of the injury caused to him with fire-arm, the appellant could be convicted for Qatl-e-Amd, our answer to this question would be in the positive. No direct authority on the issue was produced by the learned counsel for the appellant. However, in support of our view, we will quote two passages from the celebrated work of Modi's Test Book of Medical Jurisprudence and Toxicology, Pakistani Edition, Printed by Shah Corporation, Lahore, 21st Edition-page. 283:--

"9. Neglect of the injured Person .---Death may occur from complications arising from a simple injury owing to the negligence of the injured person in its proper care and treatment. In this connection it may be mentioned that a person is not bound to submit himself to medical treatment for injuries received during an assault.

In all these cases an assault is liable to be indicted for manslaughter according to the English law, if the cause of death is directly and definitely traceable to the injury, and the relation between cause and effect is not observed by the action of concurrent causes. In a case where a wound, not in itself mortal, caused death from gangrene owing to neglect or want of proper applications, it was held that the party by whom the wound was inflicted was guilty of murder. For, though the fever or gangrene, and not the wound, be the immediate cause of the death, yet the wound being the cause of gangrene or fever, is the immediate cause of the death, causa causati. To justify a conviction of murder against an assailant in India it is necessary at the same time to prove that the act was committed with the intention of causing such bodily injury as the offender knew that it was 'likely to cause death or was sufficient in the ordinary course of nature to cause death (vide section 300, I.P.C., Appendix I). If these conditions are not fulfilled, the assailant may be convicted under the offence of culpable homicide not amounting in murder, or grievous hurt, or even simple hurt according to the circumstances of the case. The kind of the weapon used and the site of the violence are also taken into consideration for deciding whether the crime falls under section 300 or any other section of the Indian Penal Code.

10. Result of Surgical Operation .-If death follows a surgical operation performed for the treatment of any injury, the assailant is responsible for the result, if it is proved that the death was inevitable even without the operation, and that the operation was thought necessary and was performed by a competent surgeon with reasonable care and skill. It should be noted that the liability of the offender is, in no way, lessened even though life might have been preserved by resorting to proper remedies and skilful treatment."

In the instant case, the injury was caused to the deceased with a pistol at the right shoulder and after crossing through axilla, the bullet stuck in the spinal cord causing injury to it and the bullet could not be removed, most probably to avoid further complications and life expectancy.

13. Even otherwise the appellant is charged for the murder of the deceased under section 301, P.P.C. punishable as per evidence on record, under the relevant clause of S.302, P.P.C. after the incorporation of the Islamic Law of Qisas and Diyat in the Pakistan Penal Code, the provisions of 5.301 and 5.302, P.P.C. are to be interpreted, in view of the provisions of S.338-F, P.P.C. in the light of injunctions of Islam as laid down in the Holy Qur'an and Sunna of the Holy Prophet (p.b.u.h.) and as interpreted by Muslim Jurists and for this purpose and in support of our view, we will quote here two authorities. At page 124 of the Book of Qisas and Diyat, published by Idara Tehqeeqat-e-Islami, Islamabad, the following passage appears:--

14. Now coming to the second authority, a passage appearing at page 524 ( ﻜﺗﺎﺐﺍﻟﻔﻗﻪﻋﻠﻰﺍﻟﻤﺰﺍﻫﺐﺍﻻﺭﺒﻌﻪ ) Vol. V, by Abdur Rehman al-Jazeeri, translated by Manzoor Ahsan Abbasi and published by Auqaf Department, Government of Punjab, Lahore 1979 Edition, is reproduced below, which reads as under:---

15. Not only from the principles of medical jurisprudence but also from the Injunctions of Islam, as reproduced earlier, it is quite clear that if death of the victim is the indirect result of the injury caused to him, the accused would be liable to punishment of Qisas for Qatl-e-Amd.

16. It was also argued that the appellant has allegedly fired one shot at the deceased, which was on the shoulder, not a vital part, as such, he cannot be convicted under section 302, P.P... However, this argument is without force. According to the medical evidence on record, the deceased received bullet injury on the right shoulder and the bullet after crossing axilla stuck in the left spinal cord, which is one of the most sensitive part of the body and even a small/minor injury to it sometimes creates a lot of complications, like the present ones.

17. It was lastly argued that there is no motive for the murder of deceased Muhammad Usman against the appellant but this argument is misconceived because the appellant is charged under section 301, P.P.C., punishable under section 302, P.P.C. as if the appellant has committed the murder of P.W. Hazrat Ali, against whom there is a clear motive of criminal litigation and repetition of shorts with a pistol.

18. For the reasons stated above, this appeal fails and is hereby dismissed.

H.B.T./172/P Appeal dismisse