GHULAM RASOOL Versus THE STATE
GUL MUHAMMAD KHAN, J.‑‑ Ghulam Rasool and Muhammad Sadiq have been convicted under section 302/34, P.P.C., for the murder of Muhammad Rafiq, and sentenced to death with a fine of Rs.7,000 each. In default of payment of fine, they have to undergo rigorous imprisonment for a period of six months each. Half of the fine, if realized is payable to the heirs of the deceased. They have presented this appeal jointly. Murder Reference No. 267 of 1980, has been sent up under section 374, Cr.P.C. by the learned Sessions Judge, Sialkot, for confirmation of death sentence. P.S.I.A. No. 79 of 1980, was filed by Mst. Shamshad Akhtar, wife of appellant No.1, against the order, dated 29th October, 1980, of the learned Sessions Judge, acquitting Muhammad Azam, on a charge under section 302 P.P.C. of the murder of same deceased (Muhammad Rafiq). All the cases shall be disposed of together by this order.
2. The prosecution case against the appellants was that on 15th July 1979, at about 11.00 p.m. Shaukat Ali P.W.7, Muhammad lqbal P.W.8, and Muhammad Rafiq deceased, were present at the tube well. They saw in the light of a bulb, appellants Ghulam Rasool armed with a Dang and Muhammad Sadiq with a Chhuri, approaching. Ghulam Rasool abused Muhammad Rafiq and told him that they would teach him a lesson for the abuses hurled by him on the previous day. Muhammad Rafiq returned the abuses. On that, Ghulam Rasool poked him with the Dang on his mouth breaking his teeth and cutting part of lips. Sadiq gave a Chhurri blow on his abdomen cutting the pancreas underneath. Shaukat Ali P. W.7 real brother of Muhammad Rafiq deceased and Muhammad lqbal P.W.8, their uncle, who witnessed the occurrence, could not intervene as Muhammad Sadiq threatened that if anyone came forward he will be similarly dealt with. The appellants, however, decamped with their weapons of offence when challenged by Muhammad Iqbal.
3. As about motive, it was stated that Ghulam Rasool appellant and Imam Din father of the deceased, had a joint tubewell (the place of occurrence) in the area of village Naul, Tehsil and District Sialkot. On 14th July, 1979, when Muhammad Rafiq was watering his land from the tubewell, Ghulam Rasool diverted the water to his land. Muhammad Rafiq objected to that which led to exchange of abuses. The appellants had attacked Muhammad Rafiq to avenge that insult and teach him a lesson.
4. Muhammad Rafiq was taken to his house first and then to the hospital. On a telephonic message, Javed Iqbal A.S.I. (P.W.9) P.S. Saddar Sialkot, reached the hospital at 1.30 p.m. and inquired from the Medical Officer, vide application Exh. P.H., if Muhammad Rafiq was in a fit condition to make a statement. The Medical Officer vide Exh. P.D./1 affirmed so. The A.S.I., then recorded the statement Exh.P.A. which was read over to Muhammad Rafiq and he thumb‑marked it. The A.S.I. , then sent the same Exh P.A. to the Police Station for registration of a case. A formal F.I.R. was then recorded which is Exh.P.A./1. The A.S.I. reached the spot and inter alia recovered the broken tooth P.3, vide recovery memo. Exh.P.H. Muhammad Rafiq died on 21st July, 1979, in the hospital whereafter the offence was altered to section 302/34, P.P.C.
5. After usual formalities, the collection of evidence and recording of statements, the case was brought before the trial Court. Out of the evidence produced by the prosecution, Shaukat Ali P.W. 7 and Muhammad Iqbal P.W. 8 are the eye‑witnesses. They supported each other and the prosecution version already given above. Javed Iqbal A.S.I was examined as P.W.9. The appellants produced five witnesses in defence to state that actual culprit was Muhammad Azam while the appellants had been falsely involved.
6. A private complaint was filed by Mst. Shamshad Akhtar, wife of Ghulam Rasool appellant, against one Muhammad Azam, about the same occurrence, alleging that he caused injuries to Muhammad Rafiq at the tubewell as a result of which he died. According to her Muhammad Azam had illicit relations with Mat. Shahnaz, daughter of Muhammad lqbal P.W. and once she eloped with him but was restored to her parents. Muhammad Azam was also given beating. It is because of that he injured Muhammad Rafiq. Muhammad Azam was acquitted against which the above‑said petition for special leave to appeal has been filed.
7. The trial Court believed the prosecution version and the evidence to support it and convicted the appellants. It is to be noted that though the joint ownership of the tubewell was denied by the defence yet the presence of Muhammad Rafiq deceased at the place of occurrence and the fact that he had been using tubewell water was not disputed. The residence of Ghulam Rasool appellant at the tubewell is also a fact admitted by Muhammad lqbal P.W.8. Muhammad Sadiq appellant is the brother‑in‑law of Ghulam Rasool appellant (sister of Ghulam Rasool is married to Muhammad Sadiq).
8. The learned counsel after half heartedly attempting to assail the prosecution version for a short while conceded ultimately that there was no infirmity in the prosecution evidence. He, therefore, strenuously argued that the evidence on record does not make out a case under section 302, P.P.C. Thus the question to be determined is whether the appellants, in the light of the evidence on record, could at all be convicted and sentenced under section 302, P.P.C. and if not under which provisions of law the offence fell? At this stage it may be repeated that according to the prosecution, only Ghulam Rasool had a motive to avenge, the insult caused to him by Muhammad Rafiq deceased, who had only abused him on a previous occasion.
9. Ghulam Rasool was armed with a Dang but he did not give any blow on any vital part of the body of the deceased. He merely poked at the mouth of the deceased dislocating his teeth and giving a small cut on the angle of mouth and lower lip. Dr. Muhammad Aslam P.W. 5 described this injury as under:‑
"Left lower central incisor and left lower canine tooth was missing. Lacerated wound " x 1/8" x 1/8 on the left mouth angle and 1/3" x 1/8" x 1/8" on the left side of lower lip. Upper jaw had 14 teeth and lower jaw had 13 teeth. Oral hygiene was good."
Had it been a Dang blow, as later stated by the P.Ws. in their depositions, the teeth, the jaw or some other part of the face, would also have been seriously injured. So either that was not the case at all 7 or it was very lightly given. Admittedly, no second blow was given by him. Thus he really intended to teach a lesson to the deceased not by killing him but shutting his mouth the way he did.
10. Muhammad Sadiq appellant is brother‑in‑law of Ghulam Rasool appellant. He gave a Chhuri blow cutting peritoneum and pancreas. It is described by P.W. 5 as under:‑
"1. Incised wound 3/4" x 1/2" x omentum was coming out in the epigastrium. "
This injury was grievous and dangerous to life and the death took place due to toxaemia and peritonitis resulting from it.
11. The prosecution case also was that the two appellants had attached Muhammad Rafiq with the common intention of 'teaching him a lesson'. The overt act of one, therefore, shall make the other equally liable. As the injury caused by Muhammad Sadiq appellant was more serious, both will be punished for it. The contention of their learned counsel that each would be liable for his own act cannot be spelt out from the proved facts. When they proceeded with their respective weapons, to the scene of occurrence, in furtherance of their common intention, Ghulam Rasool knew or had reasons to believe that Muhammad Sadiq, who was armed with a 'Chhuri' may cause a grievous and dangerous injury. The fact that Ghulam Rasool did not restrain or prevent his co‑accused from using that weapon, would support the presumption further to say that he shared with his co‑accused the liability. In that situation, he will not be able to avoid the constructive liability. Reference be made to Khushi Muhammad v. Crown 1969 S C M R 599. The same view was taken by this Court in Athar Khan v. State P L D 1972 Lah. 19.
12. The question for determination then is would the offence fall under section 302, or any other section of the Pakistan Penal Code. As said above, the intention of the two appellants never being to kill but to teach him a lesson', the conviction could not be made under section 302 P.P.C. This finding is derivable from the time and opportunity available to the culprits, their choice of weapon of offence, seat and number of injuries and the damage done and the fact that the deceased was empty‑handed alone and there was no one to intervene. Here both the appellants had sufficient time and no resistance was offered. They gave one injury each. As they admittedly resided at the same place, they appear to have taken the handiest weapon i.e. Chhuri and Dang. The way 'Dang' was used, no intention to kill or even the knowledge that the victim may die, can be spelt out.
13. Again, the decision would rest on the act of Muhammad Sadiq. The principal accused, as said above, had neither intention to kill nor would he have any reason to believe that the victim might die. Muhammad Sadiq had no direct motive and would, in no manner, exceed the intention of his brother‑in‑law. He, however, could be burdened with the knowledge that the weapon he used to cause the grievous injury, was likely to cause death.
14. The doctor P.W. 5 stated that injury No.1 was grievous and sufficient in the ordinary course of nature, to cause death. In his view the death was due to toxaemia due to peritonitis resulting from it. It is to be noted that after the injury, the deceased was operated upon. His abdomen was cut (leparotomy) and injury No.1 was stitched. The doctor was neither asked nor did he say if the toxaemia or peritonitis was the result of or accelerated by the leparotomy operation. Some sort of question was asked in the cross‑examination but the witness (P.W.5) replied that the result of the operation could only be told by the surgeon.
15. Modi, in his text‑book of Medical Jurisprudence and Toxicology, states about an injury of pancreas as under:‑
"Gray and Hodgson report the case of a man, aged 20, who, while playing football, was charged by another player and fell to the ground with his opponent on top of him. The latter's knee hit him on the abdomen. Within fifteeen minutes of the accident he suffered from shock and died in forty hours. Post‑mortem examination revealed the presence of a tear of the pancreas anterior to the vertebral column. There was no tear of any other organ or no bruise of the abdominal wall. On the other hand, Brown and Barlow describe a case of complete division of the pancreas followed by recovery through an operation from an automobile accident without serious injury."
16. In view of the above, one cannot be sure if the death could be caused in the ordinary course of nature by the cutting of pancreas. The death could have been caused or accelerated by the leparotomy resulting in toxaemia. Anyhow, the offence of the appellants would fall neither under section 304‑Part II, nor 302. The Supreme Court in Muhammad Raheem v. Kajeerullah 1968 S C M R 1368 upheld the order of the High Court altering the conviction from 302 to section 326, P.P.C. and sentencing him to 7 years' R.I., as it could not be safely found, from the evidence that peritonitis was caused by abdominal injury, inflicted on the deceased by the respondent. In that case also the deceased was operated upon after he received the injuries and he died 21 days later.
In view of the above, we alter the conviction of the appellants from section 302 to 326/34, P.P.C. and while taking into consideration the provisions of section 382‑B, Cr.P.C. and the scandalous pleas taken in defence, under section 382‑C, Cr.P.C., sentence them to 71 years' R.I. each, with a fine of Rs. 20,000 each. Half of the fine if recovered, shall be paid to the legal heirs of the deceased and in default of payment the appellants shall undergo R.I., for 3 years each. In this view of the matter, the death sentence is not confirmed and the petition of Mst. Shamshad Akhtar for leave to appeal is rejected.
H. A. K. Appeal partly accepted.
Death sentences not confirmed.