TAJAMMAL HUSSAIN Versus NASAR MEHDI

1. DORAB PATEL. J. ‑The first respondent was convicted under section 302, P. P. C. by an Additional Sessions Judge, Gujrat for the murder of Mahboob Ali Akmal (hereinafter called the deceased) and sentenced to death. The first respondent, therefore, filed an appeal in the Lahore High Court against his conviction and sentence which was heard with the Reference by the learned Additional Sessions Judge under section 374 of the Code of Criminal Procedure. The learned Judges of the Lahore High Court rejected the Reference and altered the first respondent's conviction from section 302, P. P. C. to section 307, P. P. C. therefore, they reduced the sentence passed against him to transportation for life. The first respondent did not challenge this judgment but the brother of the deceased filed a petition for leave to appeal in this Court on the ground that the learned Judges of the Lahore High Court had erred in law in altering the first respondent's conviction from section 302, P. P. C. to section 307, P. P. C. and in reducing the sentence against the first respondent from death to transportation for life. This petition was admitted on 1st November, 1973 on the ground that it raised an important point of law "as to the proper interpretation of sections 302 and 307, P. P. C. with reference to the facts of the instant case and affecting generally the administration of criminal justice".

2. The question in this appeal thus falls within a narrow compass and must be decided by reference to the prosecution evidence about the occurrence. According to the prosecution, on account of a petty dispute with the deceased, the first respondent had challenged the deceased at about 5‑30 a.m. on 19th May, 1968 on the road to Gujrat near village Madina and fired at him twice with a revolver. These shots missed the deceased, and he advanced towards the first respondent in order to seize his pistol. The first respondent then fired a third shot which hit the deceased in the right thigh. Despite this bullet wound, the deceased grappled with the first respondent who hit him on the head with his pistol but as some friends of the deceased advanced to help the deceased, the first respondent ran away. The deceased was immediately taken to the Azis Bhatti Shaheed Hospital, Gujrat for treatment and Dr. Muhammad Bashir Ahmad claims to have stitched the wounds of the deceased. But the deceased had, according to the witness, five wounds and the witness could not recall which wounds had been stitched by him. How ever, as the witness was of the opinion that proper treatment was not available at the Aziz Bhatti Shaheed Hospital, Gujrat, he referred the deceased to the Mayo Hospital, Lahore for treatment.

3. The deceased was immediately taken to Lahore and admitted to the Mayo Hospital for treatment. He died on the 1 st June, 1968 according to the death certificate (Exh. D. B.) "because of cardio respiratory failure". Nothing is known of the treatment of the deceased at the Mayo Hospital except for the operation note produced by the prosecution (Exh. D. A./1). This note reads

4. "Patient M. A. Akmal was operated upon on 31st May, 1968. He had bullet injury on right thigh. Exploration revealed injuries of the femoral artery and vein. Vein repaired by s/o black silk artery ligated in hunters canal. Wound stitched in layers.

5. Patient developed gas gangrene today. Patient had severe toxemia. In addition diminished air entry was noted on the right lobe of the lung. Patient expired before the amputation could be done."

6. The post‑mortem of the deceased was carried out by Dr. Nusrat Ullah, Deputy Surgeon Medico‑legal, West Pakistan, Lahore and although according to the post‑mortem report the lower half of the wound of the deceased on his right thigh was "blackened and gangrenous", the cause of death was stated to be cardio respiratory failure due to toxemia caused by gangrene of right foot, leg and lower part of thigh which was sufficient in ordinary course of nature to cause death. Injury No. 1 was operation wound. Injury No. 3 was antemortem and could be possible to have been caused by fire‑arm. The duration between injuries and death was within two weeks. The duration between death and post‑mortem was about 18 hours.

7. This cause of death was rearmed by Dr. Nusrat Ullah in his statement in the Committal Court on 17th October, 1969.

8. Dr. Nusrat Ullah was also examined as prosecution witness in the Sessions Court and he made a supplementary statement which reads

9. "Gangrene is the death of the part of body with putrefaction supper added. The most probable cause of gangrene was the injury to the blood vessels of the thigh by which the circulation of the distal part of the limb was ocluded. The injury to the blood vessels was the result of injury No. 1 mentioned in Exh. P. M. cross‑examination. The fact that gangrene was due most probably to the injury to the blood vessels to the thigh which prevented the free circulation of blood to distant parts of the limb was not mentioned by me in my post‑mortem report in these words. In my statement before the C. M. I did not state in so many words that this gangrene was most probably caused by injury to the blood vessel which caused the oculation of the circulation of the blood to the distal part of the limbs but I have in cross- examination stated that mechanical compression of the blood vessels can lead to gangrene of the dependent parts of the body."

10. The learned Additional Sessions Judge held on the basis of Dr. Nusrat Ullah's supplementary statement to the Sessions Court, that the death of the deceased had been caused by the pistol shot fired by the first respondent. This appreciation of evidence was challenged before the High Court and Dr. Nusrat Ullah had admitted in his cross‑examination in the Committal Court that "gangrene is possible to cause by the negligence of the injured person in the proper treatment of the wound or by attendance. It is correct that applica tion of unwholesome salves can also cause gangrene that is to the wound." As the prosecution had not produced any evidence whatsoever of the treatment of the deceased at the Mayo Hospital the learned Judges of the Lahore High Court observed that it could not "be positively said that gas gangrene which the deceased developed on 1‑6‑1968 was directly due to the injury. The learned counsel rightly asserted that it may have been due to some other cause. Accordingly, they held that the prosecution had failed to prove that the gangrene of which the deceased died was the direct result of the injury caused by the first respondent.

11. Mr. Nasim Hassan, learned counsel for the appellant and Mr. Riaz Ahmad, Assistant Advocate‑General, Punjab, both submitted that the view of the learned Judges was contrary to the provisions of section 299 of the P. P. C. read with the first two explanations to the section, whilst Sh. lslam ul‑Haque, counsel for respondent No. 1, submitted that section 299 supported the view taken by the learned Judges. The question is of the construction of the section and its explanations. The section reads :

12. "299. 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 culpable homicide.

13. Explanation 1.‑A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.

14. Explanation 2.‑Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

15. Explanation 3. .

16. The ingredients of the offence under the section are the felonious intention, as defined in the section and an injury which causes the death of the victim. As to the first ingredient, the first respondent went on firing at deceased until he hit him and this third and fatal shot was fired at very close range. Therefore, the prosecution has proved the felonious intention on the first respondent's part. Sh. Islam‑ul‑Haque, however, relied on the fact that the bullet had bit the deceased in the thigh, and, according to learned counsel such an injury could not normally be fatal. Now even on the assumption that a fire‑arm injury to the thigh cannot be fatal, there is no evidence in support of the plea that the first respondent had aimed at the thigh of the deceased and even the eye‑witnesses were not cross‑examined on this plea. B In any case, as the deceased did not stand still to receive the bullet fired at him, the first respondent could not but know that the manner in which he was firing was likely to kill the deceased. Finally learned counsel's assumption that a fire‑arm injury to the thigh cannot be fatal is totally erroneous, and they question would always be of the facts and circumstances of each case. The shot in the instant case was fired at very close range, therefore, it is not surprising that it bad severed both the femoral artery and the vein of the right thigh of the deceased, and I find it difficult to believe that such a injury could not be fatal.

17. I would quote here a passage from 'Legal Medicine Pathology & Toxi cology by Conzales and others'. The learned authors observed at page 441 (Second Edition)

18. "The most serious injury occurs when a bullet completely or incompletely severes a femoral artery, or femoral vein, or one of the larger branches, producing an external haemorrhage which may cause death in a few minutes to several hours. Occasionally a few of these cases are saved by the prompt application of a tourniquet around the thigh above the site of the injury or by prompt ligation of the bleeding vessel In one case a bullet shattered the lower end of the femour in such a way that one of the sharp bone fragments lacerated the femoral artery; the immediate haemorrhage was controlled by a gauze pack, but 72 days later, the artery ruptured and the victim died of a secondary haemorrhage.

19. A bland thrombosis may be produced in a femoral vein or artery as the result of a bullet injury of the vessel wall .A thrombosis of the femoral vein may follow a slowing of the venous circulation in that thigh referable to local conditions produced by the injury or to general circulatory disability following the systemic effects of the trauma ; a fatal pulmonary embolism may occur as the end result of a lesion of this type."

20. In the circumstances, the prosecution has proved beyond reasonable doubt that the first respondent had fired at the deceased with the knowledge that he was likely, by such acts, to cause the death of the deceased, therefore, the only question is whether the injury inflicted by him was the cause of the death of the deceased.

21. The prosecution case rests on the supplementary statement of Dr. Nusrat Ullah in the Sessions Court, and the opinion expressed by the witness in the Sessions Court is in consonance with expert medical opinion, as would be apparent from the passage from 'Legal Medicine Pathology and Toxicology' which I have quoted. However, as the learned counsel referred us to Hamilton Bailey and Mcneill Love's "Short Practice of Surgery" I would refer to the passages relied upon by the learned counsel. Bailey and Love state at page 55 (Eleventh Edition)

22. "Moist gangrene occurs, or when venous as well as arterial obstruction occurs, or when the artery is suddenly occluded, as by a ligature or embolus. Infection and putrefaction usually follow, and the affected part becomes swollen, discoloured."

23. As this passage also supports Dr. Nusrat Ullah's opinion in the Sessions Court I would not reject it merely because he had expressed a different opinion in his post‑mortem report and in the lower Court. However, the further question is whether this revised opinion is fit to be accepted, and Mr. Islam‑ul‑Haque referred us to a passage from Bailey and Love at page 59 which reads

24. "Gas gangrene, although uncommon, is a regular contributory cause of death in the case of accidents. It is now considered that the anaerobes are introduced into the wound from infected clothing rather than carried in with woil, hence wounds of the thighs and buttocks are especially liable to infection owing to faecal contamination. Excessive haemorrhage and the use of a tourniquet are predisposing causes, and, as in all cases of gangrene, the leg is more prone to be affected than the arm."

25. As the deceased had been treated both at the Aziz Bbatti Shaheed Hospital, Gujrat and at the Mayo Hospital the first respondent had to cross- examine the prosecution witnesses on the possibility of negligence at these two hospitals. The prosecution had examined in the lower Court Dr. Muhammad B Bashir Ahmad of the Aziz Bhatti Shaheed Hospital. Gujrat. as he claimed have stitched the wounds of the deceased, therefore, the first respondent had cross‑examined him about the wounds stitched by him, but the doctor could got recollect whether the wound stitched was the bullet wound or one of the other five lacerated wounds of the deceased. Then, as to the treatment of the deceased at the Mayo Hospital, it is clear from the operation note (Exh. D. A /1) that the doctors of this hospital had repaired the vein of the deceased and also stitched his wounds. The first respondent was not able to cross -examine these doctors on his allegation of negligence, because the prosecution did not produce them for examination. In these circumstances, the firs respondent could only cross‑examine Dr. Nusrat Ullah on the possibility that ,the gangrene to the deceased had been caused by the negligence of the hospital authorities, and it is significant that Dr. Nusrat Ullah had admitted in his cross‑examination in the lower Court that gangrene can be caused by negligence in the treatment of an injury. How then did he state in the Session ,Court that the most probable cause of the gangrene to the deceased "was the injury to the blood vessels of the thigh"? The question was of fact, and I would have had no hesitation in accepting this opinion if it had been based on an examination of the record of the treatment of the deceased at the Aziz Bhatti Shaheed Hospital and the Mayo Hospital. Further, as it is not the prosecution case that these records are not available. I would have expected Dr. Nusrat Ullah, as a conscientious doctor, to examine these records before venturing an opinion in a murder case. As he gave his opinion without even an attempt to examine the records, I regret to say I am very poorly impressed by his opinion. Mr. Nasim Hassan submitted that the first respondent should have produced the records of the hospitals, but the` first respondent was not required to give the prosecution an opportunity to cross‑examine its own witnesses, and, on the other hand, an adverse in ference must be drawn against it for not producing the best evidence which was in its own possession. In these circumstances, I respectfully agree with the view of the learned Judges of the Lahore High Court that the death of ‑the deceased "may have been due to some other cause", namely negligence in the treatment of the wound of the deceased. But the question is whether this negligence can take the case out of the ambit of section 299 of the Pakistan Penal Code.

26. The learned Judges of the Lahore High Court appear to have assumed that a case can fall under section 299, P. P. C. only if death is the direct result of the injury inflicted by the accused, I would have been inclined to agree with this view but for the first two explanations to the section which shave, by deeming clauses, extended the consequences of causing a bodily injury. Although the first explanation is not directly relevant to the instant ,case, it is totally inconsistent with the view that an accused can come within the mischief of the section only if the death of the victim is the direct result of the injury inflicted on him. Next as to the second explanation, the Legis lature has expressly prescribed that an accused "shall be deemed to have ,caused the death, although by resorting to proper remedies and skilful treat ment the death might have been prevented". The failure to resort to proper remedies and skilful treatment in a particular case might be because such remedies are not available, or because of errors of judgment on the part of those treating the victim of the occurrence, or because of negligence in the treatment of the victim. Although the Legislature was aware of the possibilities, it has expressly brought within the mischief of the section all cases of failure to resort in proper remedies and skilful treatment. Therefore even though the provision is of a penal nature, we have to give effect to its plain meaning and this means that the first respondent was guilty under .section 302, P. P. C. even though the deceased might not have died but for negligence in the treatment of his wounds.

27. As there is no judgment of this Court on the precise point under consideration, the learned counsel referred us to judgments of the West Pakistan, High Court and Mr, Nasim Hassan relied on judgments of Divisions Benches of the West Pakistan High Court in Murad v. The State (P L D 1957 Lah. 332) and Karam Din v. The State (1969 P Cr. L J 482). In Murad's case, the appellant had been convicted under section 302, P. P. C. for the murder of the deceased. The weapon used was a, pistol. The bullet had pierced the left lung, stomach and spleen of the deceased and the injury was sufficient in the ordinary course of things cause death. However, as the victim died during an operation for the rupture of his spleen, the appellant contended in his appeal in the High Court that death was due to haemorrhage, which would not have occurred but for the operation. The appeal was dismissed and the learned Judges observed that "if a person who intends to cause death brings into existence circumstances which in the normal course of events have resulted in death that person has caused death". I respectfully agree with this judgment, but it is not relevant because the question before us is of the consequence of negligence in the treatment of the wound to the deceased, but no such question arose for consideration in the case cited.

28. Karam Din's case is distinguishable on the same ground, because there the deceased had died from peritonitis and toxemia following a stab wound,... and it was not disputed that these complications were the direct result of the. stab wound inflicted by the appellant. As the accused did not even allege ‑negligence in treatment of the stab wound, this judgment, as well as the cases, relied on in it, are not relevant to this appeal.

29. Mr. Islam‑ul‑Haque relied on a judgment of a Division Bench of the West Pakistan High Court in Said Amin v. The State (P L D 1959 Lah. 451). There as death had been caused by a knife wound, sufficient in the ordinary course of things to cause death, the appellant had been convicted by the Sessions Court. However, as according to the post‑mortem report, the death had "occurred from haemolysis following blood transfusion which was given to him as a part of the treatment for the abdominal injury", the contention of the appellant in the High Court was that his conviction under section 302, P. P. C.. was illegal, because death had not been caused by the knife wound inflicted by him. The learned Judges observed : "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 . In the present case we do not know why haemolysis has 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."

30. In view of this possibility of negligence in the treatment of the victim, the learned Judges altered the appellant's conviction to section 307, P. P. C. Whilst the judgment fully supports Mr. Islam‑ul‑Haque's contention, I regret my inability to agree with it, because even though the haemolysis to the deceased might have developed on account of negligence in the treatment of the wound, this negligence amounted to not "resorting to proper remedial and skilful treatment" within the meaning of the second explanation of section 299, P. P. C. Unfortunately the attention of the learned Judges was, not drawn to this explanation, and I cannot, therefore, agree with their view, and for the same reason I cannot agree with the view taken in an earlier judgment of the Lahore High Court in Chanan Din v. Emperor (A I R 1934 Lah. 368 ).

31. No other judgment was cited. It is strange that the question of the effect of negligence in treating any injury under section 299, P. P. C. has come tip so seldom before our Courts, but a recent judgment of the Court of Criminal Appeal in Regina v. Smith (L R (1959) 2 Q B D 35) is directly on this question. The facts in this case were that the appellant, who was a soldier, took part in a, fight, in the course of which he gave a knife blow to the victim on the chest. The lung of the victim was pierced and he died in hospital. As the appellant was convicted by a Court Martial, he filed an appeal, and his contention in the Court of Criminal Appeal, like that of the respondent before us, was that the wound inflicted by him would not have been fatal but for negligence sub sequent to the wound. In accepting these pleas Lord Parker, C. J. observed with reference to the wound that there was evidence "that there is a tendency, for a wound of this sort to heal and for haemorrhage to stop. No doubt his, being dropped on the ground and having artificial respiration applied would halt or at any rate impede the chances of healing. Further, there were no facilities whatsoever for blood transfusion, which would have been the best possible treatment. There was evidence that if he had received immediate and different treatment, he might not have died". But although the appellant proved his plea of negligence, his appeal was dismissed. Lord Parker, C. J.. observed :

32. "It seems to the Court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albiet that some other cause of death is also operating. Only if it can be said that the original wounding is merely, the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to, make the original wound merely part of the history can it be said that the death does not flow from the wound"

33. I respectfully agree with these observations on the difficult question of' causation and they are relevant to the construction of section 299 because the prosecution can rely on the explanations to the section only if it proves that the injury inflicted by the accused has been the cause of the victim's death.

34. However, Parker, C. J. in dismissing the appeal had distinguished an earlier judgment of the Court of Criminal Appeal in Reg. v. Jordan (1956) 40 W Ann. R 152) on which the appellant had relied, and a3 this case appears on first sight to support the plea of the first respondent I would briefly refer to it. Jordan had appealed to the Court of Criminal Appeal against his conviction by a Jury for murder, and his contention in appeal was that the death of the victim had been caused not by the knife wound inflicted by him but by pneumonia, to which the victim had succumbed on account of negligence in the treat ment of his wound. Thus the plea of the appellant in this case was similar to that in Smith's case, but the material difference was that in Jordan's case the evidence of negligence in the treatment of the victim had been produced before the Court of Criminal Appeal, therefore, Parker. C. J. distinguished it as "a very particular case depending upon its exact facts". However, although in allowing Jordan's appeal, the Court had pointed out that it was impossible to know whether the Jury would have convicted the appellant if the additional evidence had been produced before it, the Court had also taken the view, as stated in the head‑note, that death resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the felonious injury. but that the same principle does not apply where the treat ment employed is abnormal. With respect, it is difficult to reconcile this part of the ratio of the case with the observations of Parker, C. J., which I have quoted, and this illustrates the difficulty of determining the consequences of a felonious injury in a case in which there has been negligence in treating it. However, as that difficulty has been reduced, if not removed by the expla nations to sections 299, P. P. C, I am satisfied that Jordan's case is of no help to the case of the first respondent in this appeal.

35. In the circumstances discussed, the prosecution has proved the respon dent's guilt under section 302, P. P. C. and his conviction under this section must be restored. The only question which remains for consideration is whether the sentence of transportation for life passed by the High Court should be set aside and the sentence of death restored. Now although the prosecution has proved the first respondent's guilt under section 302, P. P. C, as it has proved this guilt through the deeming clause of the second explanation to section 299, P. P. 'I. I have given anxious thought to the question whether the maximum penalty would be justified. In my humble opinion it would not be justified. Accordingly I would restore the respondent's conviction under section 302, P. P. C. but maintain the sentence passed by the High Court.

36. MUHAMMAD AKRAM, J. ‑I have gone through the judgment proposed by my learned brother, Dorab Patel, J. The immediate cause of the death of Mahboob Ali Akmal (deceased) was gangrene that had supervened as a result of the injuries to the blood‑vessels of his right thigh. But there is nothing on the record to opine that the death could be directly attributed to the injury caused by respondent No. 1. In these circumstances, without expressing any opinion about the precise nature of the offence committed by him, I respectfully agree with the conclusion recorded by my learned brother in maintaining his sentence to transportation for life. In this view of the matter, the question as to the nature of the offence committed by the respondent is altogether academic. It is, therefore, unnecessary for me to dwell on this part of the case and express any opinion on the question as to whether his conviction was justified under section 302, P. P. C, as held by the Sessions Judge or under section 307, P. P. C. as altered by the learned Judges of the High Court.

37. MUHAMMAD YAQUB ALI, C. J.‑I agree.

38. S. A. H. Appeal accepted but sentence maintained.