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Criminal Appeal No. 272 of 1965, decided on 13th July 1965.
Ss. 302 & 326‑Probability that death of deceased was caused by injury inflicted by accused‑Failure, however, to hold post‑mortem examination of dead body when same available for purpose‑Possibility of other factors being responsible for death cannot be ruled out‑Benefit of doubt given to accused‑Conviction under S. 302 altered to one under S. 326.
Abdus Salam Khan with A. H. Md. Shariful Islam for the condemned Prisoner.
Abdul Hakim deputy Legal Remembrancer, with Dewan Nazmul Hag for the State.
.‑This is a Criminal Reference under section 374 of the Code of Criminal Procedure by the learned Sessions Judge of Kushtia, for confirmation of the sentence of death passed by him upon the condemned prisoner Md. Abu Toha alias Raja who has also appealed before us.
We dispose of the appeal and the reference together by this judgment.
The learned Sessions Judge tried the appellant along with three other accused with the aid of four assessors who have all found the appellant guilty under section 302 of the Pakistan Penal Code and the other three accused not guilty under section 302/34 of the Penal Code. Two of the assessors also found the appellant guilty under section 307 of the Penal Code; while the other 'two found him guilty under section 324 of the Penal Code for the injury caused by the appellant to the second victim Nurul Islam P. W. 1.
The prosecution examined 15 witnesses of whom three were doctors‑‑‑giving medical evidence but none speaking to the post mortem report as there Was no such report; one was the father of the boy; three were police witnesses and two were eye‑witnesses and four were from those who heard about the occurrence from the two eye‑witnesses.
The prosecution further tendered four witnesses of whom one was cross‑examined by the defence.
The defence did not examine any witness.
The case is one of stabbing in broad daylight between 11 a.m. and 11‑30 a.m. in the town of Kushtia just outside the local college precincts. The alleged assailant, that is, the appellant Abu Toha, before us is a young man of 22 of hot blood, himself a student and his two victims are also students; the deceased being of Jagannath College, Dacca, and the other victim, namely, Nurul Islam P. W. 1, being a student of the local college itself. .
The injury on deceased Iqbal Asaf Ali was a penetrating incised wound 1 " x "x cavity situated on the left sub‑clavian region in front of the chest.
The other injury, that is the one caused to Nurul Islam P. W. 1 who got off with superficial injury was alleged to have been inflicted by the same instrument and this injury measured 1' x " x muscle deep on the back of the left shoulder. The doctor P. W. 12 Mr. Abul Hussain found only one injury in this case although according to the victim Nurul Islam himself there were two strokes. The instrument of attack which is not before us, was not seen by any one except by P. W. 1 Nurul Islam, the second victim, according to whom, the blade of the dagger may be 6/7 inches long and 1 " inches wide.
The first victim, namely, the deceased 1qbal lingered and hovered between life and death for four and a half days after, the injury.
If the size of the knife or dagger as given by P. W. 1 Nurul Islam, be accepted the stroke upon the deceased, was not to vehement and there was no repetition but a diversion to the next man in the line and there is some hint that the, third man in the, line, namely, P. W. 2 Abdul Matin, saved himself by escaping.
The stroke on the second victim was not because he inter vened.
There was no enmity in the personal level towards either victim though there were party feelings, namely, that of Court Para and Mill Para over a foot‑ball episode.
The most remarkable feature of the case is the absence of post‑mortem examination.
The full prosecution story is that deceased Iqbal was the son of Mr. M. A. Samad P. W. 16 the then Joint Deputy Commis sioner of Kushtia. He was a student of Jagannath College, Dacca and parsed his I. Sc. Examination in 1964; although he had high hopes, he simply got a "pass" in the examination and came to know of his result from the Newspaper on the 20th of July 1964, at Kushtia.
Being very sorry over the bad result, he did not stir out on that day, namely, the 20th of July 1964.
On the next day, namely, the 21st of July 1964, he went out at about 10 or 10‑30 a. m. accompanied by P. W. 1 Nurul Islam and P. W. 2 Abdul Matin to Kusntia College to see his Professor Mr. Zakria P. W. 3 for taking his advice as to the subject he could take up for the B. Sc. course. Nurul Islam went, to the college to ascertain whether his mark sheet had been received while Abdul Matin went there for taking his transfer certificate.
After finishing their jobs in the college they, were returning home by the College Road which ran east to west from the north of the college. The main gate of the college is just on the side of the College Road and the college is fenced on all sides by barbed wire.
There is a canteen on the south‑west corner of the college by the side of the College Road and there is a footpath from the college to the canteen or the barbed wire fencing.
Students occasionally come to college by crossing the barbed wire near about the canteen.
Iqbal, Nurul Islam and Matin left the college area and came on 'the Collage Road by the main gate and were, going toward the west. As they advanced' a few steps, they saw appellant Abu Toha alias Raja crossing the barbed wire fencing and taking his stand on the southern side of the, College Road. They also noticed the other three accused following them. A few moments after, they heard one of those following them, shouting out from their behind-----"Mar Shalader." Thereupon, appellant Toha rushed at Iqbal and stabbed bloodstained knife at the chest of Nurul Islam who at once turned right and the knife blows by the Abu Toha fell on his shoulder.
Matin ran away and anyhow managed to enter the college compound.
Nurul Islam began to shout that Abu Toha was running away injuring himself and Iqbal.
Iqbal sat down on the College Road pressing his injury with his hand. He tried to go to the hospital followed by Nurul Islam.
At a distance of about three hundred cubits from the college, the College Road and the Hospital Road met and the 'hospital was at a distance of 1,000 to 1,100 cubits south‑west from the college. Through the help of P. W. 8 Ashafuddoula, Iqbal was taken to the hospital by a Rickshaw.
Mr. Samad P. W. 16, the father of lqbal was informed over the phone who then rushed to the hospital and rang up the Civil Surgeon P, W. 13 and the latter then hurried to the hospital and took steps along with the Assistant Surgeon P. W. 12 to save Iqbal's life.
As the condition of the patient became precarious, the Civil Surgeon rang up Principal, Medical College, Dacca, and requi sitioned for the service of a Surgical Specialist. Accordingly, Dr. Nowab Ali was sent from the Dacca Medical College Hospital by a special plane and patient was evacuated to Dacca by the same plane on that very day as the condition of the patient continued to be grave due to shock and haemorrhage.
In the meantime, Mr. A. S. A. Noor, Magistrate, Second Class P. W. 14‑took down the dying declaration of Iqbal.. Mr. Samad also heard in the meantime about the occurrence from his injured son lqbal and P. W. 1 Nurul Islam.
At about 7‑30 p. m. on that day, that is, 21‑7‑64, lqbal was admitted into the Medical College and in spite of all medical help he expired on 25‑7‑64, at 12‑45 a.m. in the Medical College Hospital, Dacca.
The three doctors who attended including the Assistant Surgeon P. W. 12, the Civil Surgeon P. W. 13, and Dr. Rashid P. W. 1 of the Medical College Hospital, Dacca,, were of the opinion that the injury which Iqbal received was sufficient in the ordinary course of nature to cause death.
No post‑mortem examination of the dead body however was held. The father of the boy was reticent himself and according to P. W. 15 Dr. Rashid‑"In this case no post mortem was necessary to ascertain the cause of death." This witness also said that he did not think it necessary to hold post‑mortem examination as the cause of death was the result of the, injury. '
P. W. 1 Nurul Islam was admitted into the Kushtia Sadar Hospital and there he lodged the First information Report which was taken down by P. W. 19, S. I. of Police Muktub Hussain marked Exh. 1.
After investigation, the police submitted charge‑sheet against, the four accused under section 302/34 of the Penal Code and against the appellant Toha further under section 307 of the Penal Code.
After preliminary enquiry by a competent Magistrate, the accused persona were committed for trial to the Court of Sessions.
The defence was that on the previous day there was a foot ball match between the Mill Pam on one side and the Court Part on another and on the football ground there was some trouble between the two sides which, however, was settled by the Referee.
After the play the Court Para boys including Iqbal, Matin and Nurul Islam assaulted Mr. Azmatali P. W. 9 then a Muktear at the Traffic Point and this Azmatali P. W. 9 hired some Goondas to teach them a good lesson. The defence in substance was that the injuries on Iqbal and Nurul Islam were inflicted by a hired Goonda of the said P. W. 9 Azmatali.
Mr. Abdus Salam Khan, the learned Advocate appearing for the appellant has argued only one point, namely that in the absence of the post‑mortem examination of the dead body of Iqbal, it could not be ascertained whether death was caused by the injury inflicted by the appellant and that had post‑mortem exami nation been held, some other cause of death might have revealed itself. He has not very seriously questioned the integrity of the opinion as to cause of death as given by the three doctors examined in the case nor has he tried to discard the evidence of those who saw the actual infliction of the injury. He has, however, contended with full vigour that in the absence of post‑mortem examination, it would be highly unsafe to fix the injury administered by the, appellant as the cause of death.
He has further argued that when the corpse was available for post‑mortem, the prosecution by withholding post‑mortem examination has not placed all the cards on the table.
He has also argued incidentally that the nature of the injury by itself was not such as one‑ could be sure that that was the cause of death; that there might be mishandling by too many doctors and that want of blood as testified to by P. W. 13 Mr. A. A. Choudhury and oxygen failure as revealed by case history Exh. 6, might have facilitated the death. He has also referred to the air movement that the patient was made to undergo in a critical conditions.
The learned Deputy Legal Remembrancer appearing for the State on the other hand, has vehemently argued that post‑mortem examination was not mandatory and that in the face of the clear evidence of the eye‑witnesses and the uniform opinion of the three doctors as to the homicidal nature of the injury inflicted, the post‑mortem examination could not have improved matters in any way; that the injury itself speaks eloquently of the inten tion to kill.
Infliction of the injury by the appellant not having been denied by the learned Advocate for the appellant, it is not neces sary to discuss in full the whole evidence.
A brief resume of the whole evidence, however, is called for before we consider the only point, namely, the effect of the doubt that follows from the absence of post‑mortem examination.
The evidence of P. W. 1 Nurul Islam who is an eye‑witness and was also a victim himself of the attack was to the effect that on examination, Abdul Matin P. W. 2, deceased lqbal and the witness himself went to the college for their respective marks, Iqbal passed I. Sc. from Jagannath College, Dacca. At about 11‑30 a.m. they came out of the college by the main gate and turned west by the road. They found Abu Toha crossing the barbed wire from the north‑west corner taking his stand some 20/25 cubits west from the gate. They also noticed the other three accused following them from the back. He identified the appellants in the dock.
All of a sudden one of the three following them on the back cried out "beat the Sales". Thereupon Abu Toha, the appellant who took his stand on the southern side of the College Road advanced a few steps and stabbed Iqbal on the chest with a dagger. The witness himself and the deceased as well as P. W. 2 Matin were proceeding side by side. Iqbal was on the south, the witness was in the middle while Matin P. W. 2 was on the northern side. The appellant took out the dagger and aimed that bloodstained dagger at the chest of this witness and on the witness's turning right, that is, towards the north, the two blows aimed at him, fell on his scapular Legion, that is, on the back of his shoulder.
Iqbal pressed his injury; Matin fell into the drain. Iqbal sat down with his injury pressed with his hands.
The appellant along with the accused ran away towards the east.
The blade of the dagger, according to him, may be 6/7 inches long and 1 " inches wide. The witness raised alarm stating that Toha was running away by murdering the witness and Iqbal. On arrival at the hospital after Iqbal who was already there, a doctor examined the witness and a police officer P. W. 19 took down his statement.
Iqbal was sent on the same date to Dacca by a special heli copter. The four accused were supporters of Mill Para Football Team; whereas the witness, the deceased and P. W. 2 Matin lived at Court Para.
He further stated that on the 20th of July, 1964, that is, on the day previous to the occurrence, there was a football match between the Court Para and the Mill Para and there was some trouble in the field during the match but the 'Referee settled the dispute. In cross‑examination he stated that the football match on the previous day was organised by Kushtia District Sports Association‑ and none of the accused played the game nor did this witness take any part therein. He also stated that when the father of Iqbal, namely, P. W. 16 Mr. Samad came to the hospital, he informed him that Toha assaulted him and Iqbal. He said that he went to college on that day to enquire whether his mark sheets had arrived and Matin went to take his transfer certificate. He admitted that Azmatali Miiktear was assaulted after play at the Traffic Point and that Toba also abused him and he could not say if Toha was between that night at the time of the departure of the Dacca Mail. He denied the suggestion that some unknown person assaulted him and Iqbal. He also denied that Toha and others have been falsely implicated at the instance of P. W. 9 Azmatali Muktear.
P. W. 2 is Abdul Matin, the third man in the line who escaped. He is also a student of the first year B. A. of the local college. He claimed to know all the accused from before the occurrence. He has corroborated P. W. 1 Nurul Islam as to the time and manner of occurrence and as to the shout from the back "Mar Shalader"; whereupon Toha advanced and stabbed Iqbal on the chest and then with the same dagger aimed at Nurul Islam's chest whereupon Nurul Islam turned right and the two blows fell on his shoulder. He heard Nurul Islam cried out saying "Toha running away murdering myself and Iqbal." He also told the father of lqbal what he saw. At about 3 p. m. Daro;a took him to the spot and the Daroga saw blood there. This witness played for Mill Para (Sic‑Court Para) on the previous day and he said that there was some trouble during the play but the Referee settled it and that after the play, sup porters of both sides had altercation at the Traffic Point. He denied the suggestion that he, lqbal and. Nurul Islam assaulted the Muktear. He also stated that it was not fact that Muktear Saheb brought Goonda to teach them a lesson and that Goonda assaulted Iqbal and Nurul Islam.
P. W. 3 is Mr. Zakaria, Vice‑Principal of the Kushtia College who was also a private tutor of Iqbal for sometime. He has testified to the effect that on the 21st of July 1964, at about 11 a. m., Iqbal came to him for advice as to the subjects he would take. He left after a few minutes and 15/16 minutes thereafter he heard a Golmal on the College Road and came out of his quarter. He found Matin running through the college compound with his clothes drenched. He heard Matin say something to the students which he could not catch distinctly. Later he heard that Iqbal had been stabbed by Abu Toha alias Raja. At about 3 p.m. he went to the hospital, met Matin there who told him that Raja had stabbed lqbal and Nurul Islam near the College Canteen. The witnesses himself, however, could not meet lqbal or Nurul Islam.
P. W. 4 Anwarul Karim was tendered by the prosecution but there was no cross‑examination‑cross‑examination being declined.
P. W. 5 is Eunus Ali Khan, a first year B. A. student of the local college who stated that be knew Iqbal and Nurul Islam from before. He met Nurul Islam at about 12‑15 p. m. on 21‑7‑64 in the Emergency Ward of Kushtia Hospital and saw bleeding injuries on his person. Nurul Islam told him that near College Canteen, Toha bail stabbed him and Iqbal on the College Road.
P. W. 6 is Anisur Rahman, a B. Com. final year student of Kushtia College. On 21‑7‑64, he met Iqbal on the junction of the College Road and the Hospital Road. Iqbal was going to hospital with Ashafuddoula P. W. 8 by a Rickshaw. He saw Iqbal's clothes besmeared with blood. On the enquiry 1qbal said that his assailant was reported to be one Toba and that he was stabbed on the College Road near the canteen. The witness also met Nurul Islam who had also two injuries on his shoulder. Nurul Islam told him that Toha stabbed Iqbal first and then injured him with the same dagger when Iqbal, Nurul Islam and Matin were returning from the college.
P. W. 7 Golam Rasul was tendered but there was no cross- examination‑ cross‑examination being declined.
P. W. 8 is Ashafuddoula who came to the help of the injured Iqbal as he was, starting to go to the hospital. This witness is a cloth merchant at Kumarkhali which is five miles away from Kushtia town and on the relevant date he was in the town. As he was proceeding at about 11‑30 a. m. by the College Road he saw Iqbal coming on foot towards the west by pressing his wound with his hands. He found his clothes besmeared with blood. He helped Iqbal by reaching him to the hospital on his rickshaw and on enquiry lqbal told him that one Toha had injured him near the College Canteen on the College Road.
Iqbal was known to the witness from before. On reaching hospital he rang up the Civil Surgeon and also the father of the boy, namely, P. W. 16 Mr. Samad, whom he could not contact. lqbal also told the witness that Nurul Islam and Matin were with him and that Toha had also stabbed Nurul Islam. In cross‑examination the witness stated that he came to be acquainted with Iqbal in the steamer while coming to Dacca.
P. W. 9 is Mr. Azmatali, a Muktear at the time of occurrence and a pleader at the time when he deposed in the case. He stated that he resides in Court Para and that on 20‑7‑64, he went to witness the football game. Anticipating trouble at the Traffic Point, he directed the Court Para boys by another route to their Baris. As he was returning home by the Traffic Point,, he saw two boys fighting outside the Railway Platform and ongoing to the platform, saw some boys driving away the Court Para boys to their Court Para residences. He then went home. But from near his house he saw the chasers including Toha, Mannan and others returning to the Court Station. He saw swellings on the face of Tuha. Toha, Mannan and others were saying that they would beat the Court Para boys whenever found. In cross-examination, this witness stated that there was no Maramari at the Traffic Point and he heard no abuse by the boys assembled at the Traffic Point. He also denied that he was assaulted by the Court Para boys at the Traffic Point. He also denied having abused the Court Para boys and dubbed them "women" or "girls". He also denied that Toha held him responsible for all the troubles and as a result he got him assaulted. He also denied having been assaulted by Iqbal, Matin and Nurul Islam. He further denied having hired Goondas on 21‑7‑54 and that he got Iqbal, Matin and Nurul Islam assaulted.
P. W. 10 Ramjan Ali was tendered cross‑examination being declined.
P. W. 11 Miron was also tendered. Iv cross‑examination this witness stated that in front of Telegraph Office, Toha declared that Azmatali Muktear was at the root of all these troubles. The witness warned Toha not to speak nonsense. The witness also heard from the Railway Station before the departure of the Dacca Mail a groaning sound‑"being killed". That was about 6‑45 or 7 p. m. The witness denied that Toha was being killed by their agents.
P. W. 12 is Dr: Abul Hussain, in‑charge of Sadar Hospital, Kushtia on 21‑7‑64. On examining Iqbal he found:‑----
"(1) One incised penetrating wound 1 " x "'' x cavity with blood gushing out from the wound, in the left sub‑clavicular region just below the left collar bone‑nature of the injury is grievous. Age of the injury was about 20 minutes. Nature of the weapon used was sharp cutting, like knife."
Death, according to this witness, would have been imminent if proper precaution bad not been taken. He also stated that they sent for a Magistrate who took down the statement of Iqbal which the witness attested and that Iqbal clearly made the statement although he felt difficulty. He further said that plasma was being transmitted or transfused when lqbal made the statement.
The witness also stated that Nurul Islam also came to the hospital at about that time whom also he examined and found the following injuries:‑---
"(1) One incised wound 1"x " muscle deep on the back of the left shoulder‑simple age 20 minutes, caused by sharp cutting weapon‑clotted blood surrounded the injury."
He, however, did not notice if there was any minor injury behind the clotted blood.
In cross‑examination, he admitted that the Civil Surgeon ligatured the severed artery of Iqbal. According to him, it was done to stop the blood to save the patient.
P. W. 13 Mr. A. A. Choudhury, is the Civil Surgeon, Kushtia. He also attended upon Iqbal and on arrival found the patient extremely anaemic and in extreme shock. Pulse was imperceptible, respiration hurried‑cold, clammy, sweat all over the body.
lie found the size of the injury as that given by P. W. 12 Dr. Abul Hussain. There was severe haemorrhage and on examination all the sub‑clavian vessel were found by him severed which were secured and ligatured. There was swelling about 6" x 6" into the sub‑axillary region and the swelling was due to accumulation of blood. The witness stated that as the case was a precarious one, Principal, Dacca Medical College Hospital was contacted over phone and pursuant thereto Dr. Nowab Ali from Dacca was seat by special plane and the case was evacuated to Dacca by the same plane. The witness stated that the patient would have died within a few minutes if no medical help was given hen and there and that the injury was sufficient in the ordinary course of nature to cause death: In cross‑examination he stated that for ligation minor operations were necessary and that they had no sufficient blood at their disposal and so the specialist thought that the patient should be removed to Dacca.. P. W. 14 Mr. Noor, is the Magistrate, First Class who recorded the dying declaration of lqbal Exh. 4. He stated that 1qbal could not sign the dying declaration as his left hand was injured and as saline was being given to the right hand and that Iqbal stated that Nurul Islam arid Matin saw him injured by Toha.
P. W. 15 is Mr. Rashid, Clinical Assistant, Surgical Unit No. 4, Dacca Medical College, an M.B., B.S. He has stated that on 21‑7‑64, Iqbal was admitted into the Medical College at 7‑30 p.m. as a stabbing case on the shoulder. The case was tackled by some doctors at Kushtia who found rupture on the left axillary artery and ligatured it. On examination he found the condition of the patient poor; pulse was imperceptible; respiration 48 per minute, temperature was 1026‑F; blood pressure 9060 M. M. hg. There was no external haemorrhage at that time.
Blood transfusion and other measures were resorted to, but there was no improvement and the patient was taken to operation theatre the next morning.
The left sub‑clavian artery was ligatured and the wound explored. It was found to have penetrated into axilla which was full of blood clots. The axillary artery was found completely divided‑the proximal end could not be traced. The distant end was found and ligatured. The axillary vein was found to have been partially ruptured ‑and blood was oozing out which was ligatured. Then the wound was closed leaving a corrugated rubber drain in the axilla.
Still then the patient did not improve and he was gradually sinking and ultimately expired on 25‑7‑64 at 12‑45 a.m, in the hospital.
In all eleven bottles of blood were transfused. He further said that the nature of the injury was grievous.
Cause of death was haemorrhage leading to the irreversible shock as a result of the said injury. The injury mentioned above was sufficient in the ordinary course of nature to cause death. With out any medical aid the patient would have died within a few minutes. The injury was homicidal in nature. The doctor also stated that in this case no post‑mortem was necessary to ascertain 'the cause of death though he admitted in cross‑examination that by post‑mortem cause of death is ascertained. He said that he did not hold post‑mortem being definite that the cause of death was the injury.
P. W. 16 is Mr. M. A. Samad, the unfortunate father of the deceased who met his sinking son on the operation table in the hospital. He told him that he has been stabbed by Toha when he was returning from college with Matin and Nurul Islam. That his assailant's face was known to him from before and he heard that his name was Toha. The witness also met Nurul Islam at the hospital. He also told him that he, Matin and Iqbal were returning from college when Toba first stabbed Iqbal and then stabbed Nurul Islam and that three more boys were behind them and that after they stabbing Toha they ran away together. He stated that a Surgeon came by Government plane but as grouping of blood was not known he could not come with b19od. The doctors then decided that Iqbal should at once be removed to the Dacca Medical College and he was accordingly removed to Dacca by that plane and the witness accompanied them. Plasma was being transfused while on the way to Dacca: He was by the side of his boy day and night and the boy expired on 25‑7‑64 at 12‑45 a.m. in the Medical College, Dacca. He stated that he did not allow the dead body to go for post‑mortem examination and that there was no post‑mortem and that the boy was interred in Azimpura.
P. W. 17 Md. Hashem is an A. S. I. of Police who held the inquest on the dead body. He stated that he forwarded the dead body to the morgue but as the A. D. C. (meaning P. W. 16 Mr. Samad) did not like post‑mortem of his son and made an endorse ment to that effect, the dead body was not sent. In cross‑exami nation he stated that the dead body was in the hospital and not actually sent to the morgue.
P. W. 18 Md. Israil is a formal witness who seized certain items of documents including the death certificate and the history case sheet.
P. W. 19 is Maktub Hossain, S. 1. of Police. He stated that on 21‑7‑64 he recorded the statement of Nurul Islam at about 1‑30 p.m. in the Kushtia Hospital‑Exh. 1. He also met Iqbal in the hospital. He could not record his statement as he was in operation theatre.
At 2 p.m. he went back to the thana and started the case on the statement of Nurul Islam Exh. 1 and filled up the F.I.R. Exh. 8. He went to the College Road in front of Kushtia College and P. W. 2 Matin showed him the place of occurrence where he found blood marks and drops of blood continuing up to the point parallel to the Ministerial Staff Quarters of the college near the junction of the College and Hospital Road. He prepared a sketch map of the place of occurrence showing the topography of the place and examined P. W. 2 Matin on that day and searched for all the accused but none of them was available. He examined P. W. 8, P. W. 5, P. W. 6 on 23‑7‑64. He also examined P. W. 9 Azmatali, Harunar Rashid and Mozammel Haque. He also examined P. W. 1 Nurul Islam and P. W. 3 Mr. Zakaria. On 1‑8‑64 he examined Mr. Samad, father of the deceased. In cross‑examination he stated that P. W. 1 Nurul Islam did not tell him that some one cried out from behind "Mar Shalader" and that P.W. 2 Matin told him that besides the three accused, namely, Bari, Arafin and Rahim, 3/4 others came out by the college gate and were 50,160 cubits behind them and that many other college students also saw the occurrence. He also stated that P. W. 2 Matin did not tell him that Nurul Islam cried Toha as assailant. He also stated that P.W. Mr. Samad did not tell him that Nurul Islam told him that three boys were coming behind or that Nurul Islam told that all four left together.
The omissions, if any, as above are minor omissions and having regard to the fact that the infliction of the injury by the appellant Toha has not seriously been disputed, is not of much importance.
The above evidence clearly establishes the prosecution story to the extent that the occurrence took place at the time, place and in the manner as alleged by the prosecution. Blood was found on the spot by P. W. 19 Maktub Hussain. The defence version only remained a mere suggestion.
The main question before us is that of the injury caused to the deceased. Was it such as could irresistibly lead to the con clusion that the aim and intention was to cause death
It is no doubt probable that the death might have been caused by this injury but the probability of the death having been caused by other factors could only be excluded by post‑mortem examination which is lacking in the present case. The possibility of other factors being responsible for the death, cannot be ruled out altogether in the absence of the postmortem examination. There is thus an element of doubt as to whether death was caused by this act of the accused, namely, the injury caused. The benefit of this doubt must go to the appellant.
In this case death occurred after more than four days and during this time the case was handled by doctors; plasma was being transfused both at Kushtia and on the way to Dacca; vessels of the sub‑clavian region which were severed, were ligatured. After removal to'. Dacca Medical College, he was also operated upon by Dr. Nowab Ali, the Surgeon.
Thus whether the death was due to some mishandling of the case in transfusing plasma or in ligaturing the vessels or in making preparation for the operation or in course of the operation itself, could only be ascertained by post‑mortem examination.
There was also a failure of oxygen at the last stages on the 24th, that is the day previous to his death, as the Oxygen Test went out of order as per Exh. 6.
In this case what we get is the opinion of the Clinical Assis tant P. W. 15 Dr. Rashid only who had a lesser part to play in looking after the general condition of the patient and in trans fusing blood to the patient and in helping the Surgeon generally and not the opinion of the Surgeon himself who attended the patient in Kushtia as also in Dacca and ultimately carried out the operation.
There is no independent opinion before us except the opinion of the three doctors who attended and treated the case. It will be too much to expect that they would speak against themselves.
In the absence of the post‑mortem examination Dr. Nowab Ali, the Surgeon would have been the second best and he was the person most competent to say whether or not the death was due to that particular injury or for some other reason.
This Doctor Nowab Ali has been withheld by the prosecution and no explanation has been offered therefore.
In those circumstances there would be a legal presumption under section 114 of the Evidence Act that if he was examined he would not support the prosecution case. His absence from the witness box has deprived the defence of the oppor tunity of bringing out facts which might reveal some other cause of death.
In any case the omission to hold post‑mortem has deprived the defence of a valuable right apart from the fact that the precise cause of death could only be revealed by such examination.
P. W. 15 Dr. Rashid, the Clinical Assistant stated that the cause of haemorrhage leading to the irreversible shock was a result of the said injury. He also went to the length of saying that no post‑mortem was necessary in this case although he himself in cross‑examination admitted that: "By post‑mortem, cause of death is ascertained."
In our opinion, the doctor was not quite competent to say that no post‑mortem was necessary in the particular case.
Dr. Nowab Ali would have been in a better position to say because he was the special Surgeon although we could not expect that the Surgeon would say something which would have reflected upon the fraternity.
So, even if he was examined, it is doubtful whether the Court would accept such opinion because the best mode of ascertainment of the precise cause of, death was post‑mortem examination and in this case it was easy and possible to hold the post‑mortem examination.
It is to be noted in this connection that all the three doctors examined in the case in their examination‑in‑chief stated that but for their immediate attention the patient would have sunk within a few minutes which is equivalent to offering an uncalled for sort of apologia for their services.
The learned Deputy Legal‑ Remembrancer has referred to certain cases of conviction for murder even when there was no postmortem examination.
But those are cases where the body could not be found or the body was mutilated and cut to pieces 'or the death was instantaneous.
In this case the body was readily available as stated by P. W. 17 Md. Hashem.
It is true that it was the father of the boy who was primarily responsible for withholding the body from the morgue but than the police and the hospital authorities ran a great risk that way by acceding to the feelings of the father.
Though post‑mortem examination is not mandatory under any provision of law, its absence in border line cases may belt made such of by the defence throwing the door wide open for speculations.
So far as the intention of the appellant Toha is concerned, one important factor for consideration is this that the condemned prisoner dealt only one blow with a knife to the deceased and then another blow or two blows immediately after on Nurul Islam with the same bloodstained knife which was, however, partly averted and for whatever reason resulted in the infliction of a simple injury upon Nurul Islam.
There is also some hint that he was about to do the same with Matin, the third man in the row.
If the appellant's intention was death he would have repeated the blow on the deceased instead of diverting the later blows to Nurul Islam.
This would indicate that his intention was to teach some members of the other party a lesson by giving them some beatings regardless of who the victim be.
Some clue as to the intention was furnished by the fact that some boys shouted saying "Mar Shalader" which literally translated means "beat the Shalas". The order thus was not to finish or kill them.
The learned Sessions Judge in the concluding lines observed:‑
"This shows that Toha went armed with knife with the idea of beating or killing Court Para boys and when he found lqbal, Nurul Islam and Matin coming out of the College, he suddenly fell on them and seriously injured Iqbal and Nurul Islam by the knife blows;"
as if he could not make up his mind.
The injury on the body which was near the collar bone and fairly high near the shoulder was, not so very vital. The blow was not on the chest as deposed to by some of the witnesses. It was in the left sub‑clevicular region above the chest and just below the left collar bone as testified to by P. W. 12 Dr. Abul Hussain. The history sheet Exh. 6 also shows the injury to be H/O stab injury on the anterior aspect of the left shoulder.
As to the size of the weapon used, that is not before us, and there is the solitary evidence of P. W. 1 ' Nurul Islam that it was about 1 " inches by 6/7 inches. He saw the weapon momen tarily and he gave the dimensions thereof by guess.
At any rate, it was not big enough to attract the attention of any body else in the broad daylight and it seems could be comfortably tucked inside the sleeve or shirt. Even Matin P. W. 2, the third man in the line does not seem to have noticed the size of the knife or dagger.
And besides having regard to the fact that the prosecution has failed to establish beyond reasonable doubt that the blow caused the death, it ceases to be culpable homicide in the sense of section 299 of the Pakistan Penal Code.
Since, however, the evidence of the doctor was to the effect that the injury was a grievous one as per P. W. 12 Dr. Abul Hussain and as per the comment in the injury report Memo, No. 816 and Iqbal actually died latex on, there can be, no gain saying the fact that it endangered the life of the victim. The injury having been caused by a knife, the offence committed by the appellant Toha upon the deceased would come under section 326 of the Pakistan Penal Code.
So far as the injury inflicted upon Nurul Islam P. W. 1, goes it seems to be a case of 324 of the Pakistan Penal Code; the injury report showing the injury to be simple. The evidence of P. W. 12 Dr. Abul Hussain is also to the same effect. This injury as inflicted was also far away from the vital region.
Considering all the circumstances above we allow the appeal to the extent that the offence of the appellant Abu Toha alias Raja under section 302 of the Pakistan Penal Code for causing death of lqbal is modified to one under section 326 of the Penal Code and the conviction of the appellant under section 307 of the Penal Code for the injuries upon Nurul Islam is reduced to one under section 324 of the Penal Code.
We sentence the appellant Md. Abu Toha alias Raja to transportation for life under section 326 of the Pakistan Penal Code and to rigorous imprisonment for two years under section 324 of the Pakistan Penal Code the sentences being ordered by us to run concurrently.
The Reference is thus rejected.
.‑I agree.
K. B. A. Appeal partly accepted.
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