ZIA QAMAR vs FALAK SHER and another
This matter concerns a petition for leave to appeal against a judgment of the Lahore High Court, which had altered the respondent's conviction from Section 304, Part I of the Pakistan Penal Code 1860 to Section 326 of the Pakistan Penal Code 1860. The respondent was originally convicted by the Sessions Court for the murder of Rashid Qamar, but the High Court set aside this conviction, reasoning that the medical evidence failed to establish a direct causal link between the injuries inflicted by the respondent and the victim's subsequent death, attributing the death to complications from old abdominal injuries. The complainant challenged this, arguing that the respondent's intent was clear from the infliction of two knife blows to the abdomen and flank, and that intervening complications did not absolve the respondent of culpability under Section 304, Part I. Furthermore, the complainant contended that the High Court failed to apply the mandatory provisions of Section 544-A of the Code of Criminal Procedure 1898. The Supreme Court found that the contentions raised required consideration and granted leave to appeal.
- Does the presence of intervening medical complications absolve an accused of liability for culpable homicide when the initial injury was inflicted with clear intent?
- Is the application of Section 544-A of the Code of Criminal Procedure 1898 mandatory upon conviction for offences involving injury?
- Section 302, Pakistan Penal Code 1860
- Section 304, Pakistan Penal Code 1860
- Section 326, Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
ORDER
' ABDUL SHAKURUL SALAM, J.--Respondent alongwith his brother was tried under section 302/304, P.P.C. For the murder of Rashid Qamar. His brother was acquitted. Respondent was convicted under section 304, Part I P.P.C., by the learned Sessions Judge, Toba Tek Singh and was sentenced to 10 years' rigorous imprisonment and a fine of Rs,1,000, in default to undergo one year rigorous imprisonment. Under section 544-A, Cr.P.C., he was ordered to pay compensation of Rs,10,000 to the heirs of the deceased and in default thereof to undergo six months' rigorous imprisonment. It is vide order dated 30-8-1986. On his appeal, his conviction and sentences were set aside and he was found guilty under section 326, P.P.C. And sentenced to undergo rigorous imprisonment for three years plus a fine of Rs,1,000, in default to suffer six months' rigorous imprisonment. He was given benefit of section 382-B, Cr.P.C. This is vide order of the learned single Judge of the Lahore High Court dated 16-9-1987.
2. The learned counsel for the complainant contended that the learned Judge having observed that "the statement made by the complainant has been corroborated by Samuel P.W. There was no previous enmity between the parties nor there was any hostility between the witnesses and the accused. The infliction of injury by the appellant to the deceased stands proved", there was no justification to set aside the conviction recorded by the trial Court. Learned counsel submitted that the learned Judge considered the crucial question to be "whether the prosecution has been able to prove beyond reasonable shadow of doubt that death of Rashid Qamar was direct result of the injuries suffered by him at the hands of the appellants." The learned Judge referred to the opinion of the doctor who had said that "the cause of death in this case was shock as a result of peritonitis and intestinal obstruction, which might be complication of old abdominal injuries". It was observed that since the doctor had "failed to give an express opinion as to which healed injury caused his death", the conviction of the respondent under section 304, Part 1, P.P.0 could not be maintained.
The learned counsel submitted that the respondent had given two Chhuri blows on the abdomen and flank of Rashid Qamar. The intention was clear. Death followed. Intervening complications did not detract from the culpability under section 304, Part I, P.P.C. Further, mandatory provisions of section 544-A, Cr.P.C. Were also omitted from being given effect to. Contentions raised require consideration.
' Leave is granted. Bailable warrants shall be issued against the respondent in the sum of Rs,20,000 with two sureties in the like amount to the satisfaction of the District Magistrate, Toba Tek Singh.