NADEEM SARWAR Versus THE STATE

JUSTICE RAJA AFRASIAB KHAN, MEMBER.--- Nadeem Sarwar (23/24) son of Muhammad Sarwar, caste Rajput, resident of Chak No.591/GB, Police Station Lundianwala, District Faisalabad, was convicted under section 302, P.P.C. and sentenced to 25 years' rigorous imprisonment by the learned Judge, Special Court for Speedy Trials No.I1, Lahore on 12-2-1992, Muhammad Asif (30) son of Mehboob. Elahi and Anwar Masih (33) son of Sarwar Masih co-accused of the appellant were, however, acquitted by the learned trial Judge vide the same judgment. The appellant has challenged his conviction and sentence by filing this appeal before this Court which shall be decided through this judgment.

2. Shortly stated, the facts of the case are that Dr. Muhammad Latif Malik was posted as Medical Superintendent, Tehsil Headquarter Hospital Jaranwala. His wife, Mst. Haleeman Begum (deceased) was suffering from an ailment of appendicitis. She was, therefore, admitted to D.H.Q. Hospital, Faisalabad, on 14-9-1991 for her treatment. Before operation of the lady, Dr. A.G. Rehan gave a list of medicines to the complainant to be made available. On 14-9-1991 at about evening time, the complainant went to Al-Mecca Medical Store at Jaranwala to purchase the medicines mentioned in the list alongwith Haji Muhammad Iqbal Dispenser and Tahir Nadeem Ashraf. Amongst other medicines, Kefzol injections made by Lilly Company was also purchased by the complainant. The lady was operated upon successfully. Immediately after the operation the patient re-gained her consciousness. She was brought to a Private Room No.22 from the operation theatre. She also started talking with her relatives. Thereafter, under the instructions of the doctor, a nurse on duty injected Kefzol injection into the patient. This injection was purchased by the complainant from Al-Mecca Medical Store, Jaranwala, which was owned and possessed by the appellant. After the administration of aforesaid injection, the patient started vomiting and went into deep unconsciousness. Her, pulse rate became considerably slow. Her blood pressure also went high. She was feeling difficulty in breathing. Her condition became precarious. A team of Doctors on duty tried their level best to bring her back to consciousness. However, because of reaction of Kefzol injection, she died soon after. There was some liquid available in the vial of the Kefzol injection which was administered to the patient. The complainant observed that the/left-over liquid in the vial was of milky colour. Whereas, according to him, the Kefzol injection should be of water-colour. He came to the conclusion that the medicine given to the patient was spurious. The District Drug Inspector Faisalabad, was also contacted. He also initiated his own proceedings against the appellant. The complainant himself being a Doctor also probed the matter further. The complainant also disclosed that on 1-10-1991 a raid was conducted and in consequence thereof spurious drugs were recovered from the Medical Store of the appellant. It was alleged that the appellant was also manufacturing spurious drugs with a view to satisfy his lust for money. He alleged that it was in the knowledge of the appellant that he was keeping spurious drugs in his store which could kill innocent patients. The appellant, therefore, committed an intentional murder. The complainant claimed that the appellant had been requesting him not to approach the police for registration of a case. On 7-10-1991, on the application Exh.P.E. of the complainant, formal F.I.R. Exh.P.W./1 was recorded by Ali Asghar S.I. P.W.18 at 11-05 a.m.

3. Ali Asghar S.I. Police Station Civil Lines, investigated the case. Dr. Muhammad Latif P.W.1 produced two vials P.1 and P.2 before him. These vials were taken into possession vide memo. Exh.P.G. Two separate parcels were prepared by the Investigating Officer about these two vials. The recovery memos were attested by Dr. Muhammad Latif and Dr. Ahsan Latif P.Ws. The Police Officer inspected the spot. He got prepared site-plan Exh.P.K. and its duplicate Exh.P.K./1 from the Draftsman. A query was put to the Medical Superintendent, D.H.Q. Hospital, Faisalabad, vide Exh.P.U. by the Investigating officer as to whether the patient died on account of spurious injection which contained Talcum Powder. The second query was as to whether a Talcum Powder if giver to a patient could cause his death in the ordinary course of nature. In this behalf the Medical Superintendent handed over a unanimous report of a Medical Board vide Exh.P.M. to the Police Officer about the cause of death of the patient. The report of the Chemical Examiner Exh.P.S. dated 12-11-1991 showed that the injections Nos.1 and 2 did not contain the elements of the drug Kefzol and instead they contained a Talcum Powder.

4. On 3-12-1991, a Committee consisting of:--

(1)

Prof. Dr. -S.A. Zaidi, Professor and Head of Medicine Department P.M.C. Faisalabad.

In Chair

(2)

Prof. Dr. Muhammad Manzoor Chaudhry, Professor of Anaesthesia, P.M.C. Faisalabad.

Member

(3)

Prof. Dr. A.G. Rehan, Professor of Surgery, P.M.C. Faisalabad.

Member

(4)

Dr. Habib Ullah, Medical Superintendent D.H.Q. Hospital, Faisalabad.

Member was constituted to probe into the cause of death-of the patient. The Committee gave its opinion unanimously saying that death of Mst. Haleema Begum occurred due to spurious injection of Kefzol which contained Talcum Powder in it. The Talcum Powder could cause instantaneous death if given intravenously.

Another Committee consisting of:-.

(1) Prof. S.A. Zaidi, FRCP.

(2) Prof. M. Manzoor Ch. M.S.

(3) Prof. Dr. A.G. Rehan. FRCP.

(4) Dr. A.P. Malik, Anaesthesist.

(5) Dr. Habib Ullah, Medical Superintendent. D.H.Q. Hospital, Faisalabad. was constituted which also unanimously opined that ` the possibility of death of Mst. Haleema Begum wife of Dr Muhammad Latif Malik having-died of Ana phylexis due to administration of spurious injection of Kefzol 500 me. batch F F I G 46A expire dated .7/93 manufacturing dated 7-6-1992 (which was produced by Dr. M Latif Malik said to have been administered to his wife on 15-9-199 cannot be ruled out'.

5. Dr. Muhammad Latif Malik (P.W.1), reiterated his earlier statement made by him before the police. He deposed that the injection administered upon Mst. Haleeman Begum was spurious and that she died on account of reaction of so-called Kefzol injection supplied to him by the appellant from his Medical Store.

Haji Muhammad Iqbal P.W.3 stated that Mst. Haleeman Begum wife of the complainant was admitted in D.H.Q. Hospital, Faisalabad, for her operation. He was summoned by the complainant on 14-9-1991 and a list of medicines was given to him to purchase them. He deposed that the medicines mentioned in the list were not available in the local Medical Store. On 14-9-1991, the witness in the company of Dr. Muhammad Latif and Tahir Nadeem went to Al-Mecca Medical Store, Jaranwala, in order to purchase the drugs. Kefzol injections manufactured by Lilly Company were also purchased by the complainant from the said Medical Store of the appellant. The witness materially corroborated the testimony of the complainant.

Prof. Dr. A.G. Rehan (P.W.8), Prof. Dr. S.A. Zaidi (P.W.9), Prof. Dr. M. Manzoor Chaudhry Anaesthestist (P.W J6), Dr. Ashraf Parveen Malik (P.W.11) and Dr. Habib Ullah (P.W.12) also supported the testimony of the complainant. Mst. Shahida Bano (P.W.13) was the Duty Nurse in D.H.Q. Hospital. Faisalabad, on the day of occurrence. She administered Kefzol injection into Mst. Haleeman Begum on 15-9-1991 under instructions of the Doctor-on-duty. According to her, the patient started vomiting and her condition became worst. She testified that it was the unanimous opinion of all the Doctors that it was the reaction of Kefzol injection administered to the patient which caused her immediate death. Ch. Shamshad Ali Drugs Inspector (P.W.14), deposed that the appellant failed to produce any Warranty bill before him

The appellant, while making a statement under section 342, Cr.P.C. denied the allegation levelled against him. His plea was that he had been falsely implicated in the case on account of previous business rivalry with the proprietor of Mian Medical Store. The appellant also made a statement on oath under section 340, Cr.P.C. He disclosed that earlier too, his premises were raided and samples were obtained therefrom but the medicines kept by him in his Medical Store were all found to be genuine. He further added that he used to purchase the medicines from various manufacturers against `receipts and Warranty Bills and that he himself was not the manufacturer. However, no evidence in defence was led by the appellant in support of his plea.

6. Learned counsel for the appellant vehemently contends that there was not an iota of evidence to connect him with commission of the crime. He further states that he is undoubtedly the owner of Al-Mecca Medical Store and that he had been dealing in sale and purchase of medicines. It is argued that there is no evidence on record to show that the fake Kefzol ' injections were prepared by the appellant himself.

Rana Muhammad Arshad Khan, learned Additional Advocate General and learned counsel for the complainant submitted that there was sufficient evidence to show that the appellant was rightly convicted and sentenced by the learned trial Court on the basis of expert evidence. It is argued forcefully that the Kefzol injections were purchased by the appellant from Life Medical Store against receipt.

7. We have heard the learned counsel for the parties at considerable length and have also read the whole record with their assistance carefully. It is proved beyond doubt that Kefzol injections P.1 and P.2 were purchased by the complainant from AI-Mecca Medical-Store, Jaranwala, which was owned and possessed by the appellant. It was mentioned by the complainant that he purchased the medicines alongwith Kefzol injections P.1 and P.2 on 14-9-1991 from the appellant in presence of P.Ws. Iris in the evidence that Mst. Haleeman Begum was successfully operated upon on 15-9-1991 by Professor Dr. A.G. Rehan P.W.8. The Kefzol injections P.1 and P.2 were also injected into Mst. Haleeman Begum under the direction of the Doctor. After taking the drug through injection, she immediately became unconscious and started vomiting. She died in the hospital soon after the medicine was given to her. It is also proved beyond doubt that the drug administered to the patient was spurious. The chemical analysis showed that Talcum Powder was found in the Kefzol injections, used in the treatment of the deceased. Two medical Boards as pointed out above, were constituted consisting of eminent Doctors of Faisalabad and all of them unanimously opined that Mst. Haleeman Begum died on account of spurious Kefzol injections administered to her. It was also testified by Mst. Shahida Bano, the Duty Nurse (P.W.13) that she injected Kefzol into Mst. Haleeman Begum on 15-9-1991. There is thus overwhelming evidence available on record to show that Mst. Haleeman died on account of administration of spurious Kefzol injection. This being so, we conclude that Kefzol injections alongwith other medicines were purchased by the complainant from the appellant. We also hold that the death of gist. Haleeman Begum occurred on account of use of spurious Kefzol injection. The crucial question for determination was as to what offence was 'committed by the appellant on the basis of evidence discussed above. In order to attract the provisions of section 302, P.P.C. it was essential for the prosecution to prove that it was tile appellant who manufactured spurious Kefzol injections in his Medical Store and he sold them fully knowing that in case such spurious drug was used the patient would die as a result thereof. In this view of the matter, case of an intentional murder was not established in these circumstances. The prosecution has failed to produce evidence to show that Kefzol injections were manufactured by the appellant in his shop and he knew that by using Talcum Powder death would occur or some bodily injury would be caused to the patient. It is, therefore, difficult for us to maintain the conviction and sentence of the appellant under section 302, P.P.C. for committing Qatl-e-Amd of Mst. Haleeman Begum. The conviction and sentence of the appellant are set aside being unwarranted in law. However, on the basis of overwhelming evidence we hold that death of Mst. Haleeman Begum did take place on account of use of spurious Kefzol injections which were purchased by the appellant from the Medical Store of the appellant. We believe that the offence committed by the appellant falls under section 321, P.P.C. i.e. Qatl-bis-Sabab. The sentence as provided under section 321, P.P.C. is the payment of Diyat money only. Accordingly, we convict and sentence the appellant under section 321, P.P.C. and direct him to pay the amount of Diyat to the legal heirs of the deceased. The Diyat money has been fixed by the legislature under section 323, P.P.C. to be not less than a sum of Rs.1,70,610 equivalent to the value of 30.630 grams of silver. We shall accordingly fix the Diyat money at Rs.2,50,000 to be paid to the legal heirs of the deceased. The appellant shall remain in jail till such time he pays the full amount of Diyat to the legal heirs of the deceased. With this modification in the sentence, the appeal is partly allowed.

N.H.Q./42/SAC

Appeal partly allowed