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Criminal Appeal No. 511 and Murder Reference No. 104 of 1967, decided on 25th June 1968.
Ss. 45 & 60‑Expert evidence Conflict between medical evidence and oral testimony‑Court can either believe prosecution evidence unreservedly and explain away conflict by holding oral testimony to be exaggerated or rely upon medical evidence and ooh ouch oral account with caution‑Oral evidence not above reproach and medical evidence not open to any doubt or suspicion‑Safe and judicious sorely upon medical evidence.
Taylor's Principles and Practice of Medical Jurisprudence (Eleventh Edn.), p. 303; Sir Sydney Smith on Forensic Medicine, p. 142; N. J. Modi on Medical Jurisprudence and Toxicology, p. 271 and Doctor S. Siddiq Hussain on A Synopsis of Medical Jurisprudence and Texicology, Chap. VII, p. 75 ref.
S 45‑Evidence of medical expert in post‑mortem examination‑Very important piece of evidence in criminal trials ‑medical Officers should visualize that it is not a mere formal duty to give evidence in Courts but real purpose is to give correct opinion to enable Court to arrive at a correct decision.
Ch. Nazir Ahmad Khan and Ch. Eitizaz Hussain for Appel lants.
Abdul Samad Hashmi for The State.
Date of hearing: 25th June 1968.
Sabir Hussain (40), his brother Muhammad Sharif (35) and Qurban Ali (32), were tried under section 302/34, P. P. C. for the murder of Sher Muhammad in furtherance of their common intention on the 2nd of February 1966 in the Chauk Kalan of Chak No. 191/E. B. The learned Sessions Judge, Sahiwal, who tried them convicted them under section 302/34. P. P. C. Sabir Hussain and Qurban Ali were ordered to suffer death while Muhammad Sharif seas sentenced to transportation for life. The condemned persons and the convict have appealed and the case is also before us under section 374, Cr. P. C. for confirmation of sentences of death of Sabir Hussain and Qurban Ali. We propose to dispose of the appeal and the reference for confirmation of sentences of death by this judgment.
2. The prosecution case is that Sher Muhammad deceased as a Lambardar was responsible for the collection of land revenue of Chak No. 191/E. B. He petitioned to Nawab Mirza, Naib Tehsildar P. W. 6, wherein he had complained that there were ‑arrears of land revenue towards, Sabir Hussain and others. This application was endorsed to Arshad Azim, Girdawar P. W. 10, with the direction that he should help Sher Muhammad in the realization of the land revenue. In pursuance of this order on 1st of February 1966, Arshad Azim P. W. along with Muhammad Hayat Peon P. W. 11 reached the dera of Sher Muhammad deceased in Chak No.191/E. B. Reaching there he detailed Muhammad Hayat, Peon to summon the defaulters. On the first day one of the defaulters Muhammad Shafi appeared before him, who was instructed to bring the arrears of land revenue the next day in Chauk Kalan of the Chak. On 2nd February 1966, Arshad Azim Muhammad Hayat, Ghulam Mohy‑ud‑Din Patwari, Sher Muhammad deceased and his brother Ramzan P. W. proceeded to Chauk Kaian and seated themselves there. Muhammad Hayat P. W. was detailed to summon the defaulters. Muhammad Yousu', Muhammad Shafi and Sabir Hussain accused turned up at about 8‑30 a.m. Sher Muhammad deceased asked Sabir Hussain to pay the arrears of land revenue, but he asserted that he had already paid the land revenue and that the Lambardar had not issued the receipt For the same to him and that he should issue the receipt for the past harvest (Rabi, 1965) and then he would be prepared to pay the land revenue for the current harvest, i.e. Kharif, 1965. this assertion of Sabir Hussain was controverted by the deceased resulting in exchange of abuse between the two, whereupon they summoned their respective votaries who appeared on the scene with arms. It is said Arshad Azim P. W. pacified both the parties telling them that he would make a report to the Tehsildar who would decide the contentious issue between the parties. Both the parties dispersed. Arshad Azim, Ghulam Mohy‑ud‑Din and Muhammad Hayat left for Patwarkhana which is close by.
The case of the prosecution further is that Sher Muhammad deceased, his brother Ramzan P. W. and others were still sitting in the village Chauk in front of the shop of Aurangzeb when all the accused appeared on the scene. Sabir Hussain was armed with a hatchet while Muhammad Sharif and Qurban Ali accused were armed with dangs. They pronounced that they had come to avenge the insult. Sabir Hussain accused gave a hatchet blow on the head of Sher Muhammad. Qurban Ali gave a dang blow while Muhammad Sharif shouted that the deceased should be done to death. Sher Muhammad deceased had a double barrel gun lying with him. On receipt of these injuries fired two shots one after the other resulting in injuries to Qurban Ali and some children who were playing nearby. Sher Muhammad tried to reload the gun but fell down on the ground on account of the injuries suffered by him. The accused decamped from the spot with their respective weapons. The occurrence was witnessed by Mohabbat Hussain P. W. 13 and Fazal Din P. W. 14.
Sher Muhammad was placed on a cot and removed to his house. He succumbed to his injuries within an hour. Leaving the dead body of Sher Muhammad, Ramzan P. W. proceeded to Police Station Gaggo which is at a distance of three miles from the place of occurrence and made the report Exh. P. A. at 11 a.m. which was scribed by Moazzam Beg, Sub‑Inspector p. W. 15. The Sub‑Inspector reached the spot at 1 p. m. He prepared the statement of injuries and the inquest report relating to the deceased and then despatched the dead body to the mortuary for post‑mortem examination. The Sub‑Inspector proceeded to Gaggo Hospital that very day and found Sabir Hussain, Muhammad Sharif and Qurban Ali accused there. He put them under arrest. He got removed blood‑stained shirt P. 11 from the person of Sabir Hussain and made it into a sealed parcel vide Memo. Exh. P.M. He also took into possession blood‑stained Kurta P. 2 and chaddar P. 3 of Qurban Ali vide Memo. Exh. P. N. On 5th February 1966 Sabir Hussain accused led to the recovery of blood‑stained hatchet P. 12 from a sugar‑cane field which was taken into possession and made into a sealed parcel vide Memo. Exh. P. O. On the same day Muhammad Sharif accused led to the recovery of Dang P. 13 from a sugar‑cane field and the same was taken into possession vide Memo, Exh. P. Q. On 6th February 1966, Qurban Ali accused got recovered Dang P. 4. The same was taken into possession vide Memo. Exh. P. H.
3. The autopsy on the dead body of Sher Muhammad was conducted by Doctor Muhammad Ashraf Khan (P. W. 1), Medical Officer, Pakpattan on 3rd February 1966 at 9 a.m. and found the following injuries thereon;‑--
(1) An incised wound, 3 ''x 1'' brain deep, on the left side of back of head, 2 " above and behind the left ear. Occipital bone and posterior part of squamous part of left temporal bone were completely cut brain matter was oozing out of the injury.
(2) A contused wound, 3'' x 2'' scalp deep, on the left anterior part of head, " from the medial line, 1 " behind the forehead.
(3) There were fresh sockets for upper central incisors.
(4) An abrasion, '' x 1/8", on the front of the middle part of the nose.
(5) A contusion mark, " x '', on the back of lower part of left upper arm, 1 '' above left elbow joint.
On internal examination under injury No. 2 both the parietal bones were fractured. Brain surface was congested. Fracture line was extending to squamo‑parietal sutures. Under injury No. 1 brain was cut and this cut was 1 " x 1" x ". Death in the opinion of the doctor had occurred due to injury to the brain and cerebral concussion which were the result of injuries Nos. 1 and 2. These injuries even individually were sufficient to cause death in the ordinary course of nature. Death had occurred within half an hour of the infliction of injuries. The doctor opined that Sher Muhammad might have been conscious after receiving injuries for few minutes and during this period he could have fired with gun.
In cross‑examination the doctor said that due to injuries Nos. 1 and 2 it was possible that the deceased would have been immediately become unconscious. (p. 6, lines 32‑34 of the paper book). Again at page 7, line 17, the doctor stated that both injuries Nos. 1 and 2 were such that it was possible that the deceased could have become unconscious immediately after receiv ing the injuries.
4. Doctor Abdul Ghani P. W. 2, A. M. O. Gaggo Dispen sary examined Muhammad Sharif accused on 2nd February 1966 at 11‑50 a.m. and found a contused wound, 1" x '' skin deep, transverse over the top of head of his person. The injury was simple and caused with blunt weapon.
5. The same doctor also examined Qurban Ali, the same day at 1 p.m. and found the following injuries on his person:‑
(1) There were 39 circular contused wounds each 1/8'' x 1/8" skin deep, over the back of right forearm in supper 1/3. The right arm was moderately swollen.
A gunshot wound, 3/4" x " muscle deep, oblique over outer side of right arm, 2" above the elbow right joint. The elbow joint was moderately swollen. The two pieces of gatta circular 3/8" radius were removed from the mouth of the wound.
Injury No. 1 was declared simple in nature. Injury No. 2 was kept under observation and later on declared simple in nature. Both the injuries were the result of firearm.
6. On the application of the accused under section 428, Cr. P. C. for summoning additional evidence we examined Doctor A. K. Taufeeq, F. R. C. S., Professor of Surgery, Fatimah Jinnah Medical College, Lahore as a Court witness.
7. Direct evidence regarding the commission of crime is furnished by Ramzan P. W. 12, Mohabbat Hussain P. W. 13 and Fazal Din P. W. 14 in their statements, Nawab Mirza P. W. 6, Arshad Azim P. W. 10 and Muhammad Hayat P. W. 11, deposed to the motive. Mirza Gul Muhammad P. W. 7, Mir Aslam P. W. 8 and Moazzam Beg, Sub‑Inspector P. W. 15 testified to the recoveries. The evidence of other witnesses is of formal nature.
8. Sabir Hussain when examined admitted that Sher Muhammad deceased was the Lambardar of his Patti and that he had made an application to the Naib‑Tehsildar seeking his assistance for the realization of land revenue from the defaulters. He denied the other prosecution allegations and made the follow ing statement from the dock:
"I was summoned in the Chauk of the Chak. Land revenue was demanded from me. I had stated that the land revenue for Rabi, 1965 paid by me had not been evidenced by any receipt on behalf of the Lambardar. There was no talk about the recovery of excess land revenue from me. Sher Muhammad Lambardar had stated that he had not recovered any revenue from me for Rabi, 1965 whereupon 1 stated that Sher Muhammad Lambardar should cake an oath on the Holy Quran that tie had not received the land revenue for Rabi, 1965 and then I would pay the land revenue for Rabi, 1965 and Kharif, 1965. I had also stated that if Sher Muhammad was not prepared to take oath I would deposit the land revenue" for Rabi and Kharij, 1965 in the tehsil treasury. Thereupon Sher Muhammad abused me. Qurban Ali and Muhammad Sharif accused were not present at that time."
On being questioned as to why he had been implicated in this case he replied as under:‑--
"Because myself and Qurban Ali accused accompanied one Badar Din son of Muhammad Bakhsh Bhatti, resident of Chak No. 191/E. B. to lodge report about his theft of cotton and as a result of that report investigation was held in which Ramzan P. W. brother of Sher Muhammad deceased and his servants were joined by the police as suspects. The application Exh. D. A. was made by Sher Muhammad in order to take revenge because of the help given by us to Badar Din in the above‑mentioned theft case.
When I was summoned to the village Chauk on 2nd February 1966. Sher Muhammad Lambardar was already present there armed with a double‑barrel gun. I was empty handed. Ramzan P. W. had a Kulhari with him. The same was wrested by Sharif accused from him when Sher Muhammad started firing upon us. Sher Muhammad fired thrice. Before he could fire for the fourth time Sharif co‑accused, who had been injured with a Kulhari blow by Ramzan P. W. and who had snatched the hatchet from him gave an injury with that hatchet on the person of Sher Muhammad. He gave one blow with its blunt side and another blow with its sharp side to Sher Muhammad. Sher Muhammad had fired first and then he was given Kulhari blows by Sharif accused in the exercise of the right of private defence of his own person. Several other persons were injured by the firing of Sher Muhammad deceased in the Chauk, including Qurban Ali accused."
To alike effect are the statements of Muhammad Sharif and Qurban Ali accused. No evidence was called in defence.
9. Before dealing with the ocular evidence we have first to deal with the medical evidence in this case. According to the post‑mortem report the deceased had an incised wound 3 " long 1'' wide brain deep, on the left side of back of head. Occi pital bone and posterior part of squamous part of left tempo ral bone were completely cut and brain matter was cozing out of the injury, while the second injury was a contused wound 3'' long 2" wide scalp deep, on the left anterior part of head, from the medial line and 1 " behind the forehead. Both these injuries were grievous. Under injury No. 1 brain was cut. Injury No. 2 was percussional injury resulting in a contrecoup injury. As the evidence of Doctor Muhammad Ashraf Khan was not conclusive, therefore, after hearing the counsel for the parties as stated earlier we summoned Doctar A. K. Taufeeq, Professor of Surgery and examined him as a Court witness. Doctor A. K. Taufeeq is an eminent Surgeon. He had stated in unequivocal terms that he did not agree with the opinion of Doctor Muhammad Ashraf Khan that the concussion of the brain was delayed in the presence of injury No. 1 as the pressure inside the brain could be let off free through the gap produced by injury No. 1 for the reason that the deceased received intra cerebral injury and the gap in the skull was not going to give him consciousness and that the gap in the skull only relieves raised intra‑cranial tension. After examining the post‑mortem report the doctor was of the view that it was not possible that the deceased would have remained in a fit state or for that matter conscious to handle a gun.
10. In Toylor's Principles and Practice of Medical Juris prudence (eleventh eddition) at page 303 concussion has been defined as under:‑--
"Concussion may be defined as state of unconsciousness or impaired consciousness suddenly produced by mechanical force applied to the skull and often followed by a varying period of retrograde amnesia."
Another celebrated author Sir Sydney Smith in his book on Forensic Medicine at page 142 described concussion as follows:‑
"Concussion is best defined, from a medico‑legal point of view, as a state of unconsciousness suddenly produced by violence applied to the skull and usually followed by retrograde amnesia."
N. J. Modi in his book on Medical Jurisprudence and Toxicology at page 271 describes concussion of the brain in the following words:
"This is a rotational injury as it will occur only when the head is free to move but not when it is fixed. It is popularly known as stunning', and may be produced by direct violence on the vertex, by a violent fall upon the feet or notes from a height, or by an unexpected fall on the ground, when pushed forcibly by a running cart or even by a bicycle. Trotter is of the view that it is a condition of widespread paralysis of the functions of the brain."
Doctor S. Siddiq Hussain in his book "A Synopsis of Medical Jurisprudence and Texicology" in Chapter VII at page 75, des cribes the concussion of brain as under:---
"Concussion of brain is also known as stunning'. It is a state of unconciousness or impaired conciousness suddenly produced by a Mechanical force applied to the head. It is a rotational injury and it occurs when head is free to move."
11. After examining the post‑mortem report of Doctor Muhammad Ashraf Khan, the testimony of Doctor A. K. Taufeeq, and the various books on Medical Jurisprudence we are of the opinion that it is inconceivable that after suffering the injuries the deceased was fit to load the gun and to fire.
12. We are of the view that where there is a conflict between the medical evidence and the oral testimony of witnesses, the evidence can be assessed only in two ways. A Court can either believe the prosecution evidence unreservedly and explain away the conflict by holding that the witnesses have merely exaggerated the incident or rely upon the medical evidence and approach the oral account with caution testing it in the light of A the medical evidence. The first method can be applied only in those cases where the oral evidence is above reproach and ins pires confidence and there is no appreciable reason to invent a false story or for the false implication of any accused. Where the evidence is not of that character and the medical evidence is not open to any doubt or suspicion the only safe and judicial method of assessing evidence is the second method.
13. To begin with we may say that the ocular evidence in this case cannot be said to be irreproachable. All the eye witnesses are unanimous in their statements that the deceased was first attacked by the accused and after suffering injuries he fired at his assailants which hit Qurban Ali accused and others.
Ramzan P. W., brother of the deceased, states in cross examination that Sabir Hussain accused had made an announce ment from a distance of 50/60 feet from them that they had come to avenge the insult. He stated before the committing Court that Sher Muhammad picked up his licensed gun which was lying on the cot, loaded it and fired at his assailants in quick succession and that as a result of the firing Rahim Bakhsh, Imtiaz, Yousaf, Mahanda, Abdur Rahim and Faqiria Chaukidar were injured. Muhabbat Hussain P. W. stated in cross‑exami nation that Qurban Ali accused and some other persons suffered injuries on account of the firing. Fazal Din P. W. stated before the committing Magistrate that Amir Kabal, Rahim Bakhsb, Imtiaz Ali, Muhammad Yousaf and others were injured as a result of the firing.
14. These eye‑witnesses tell a most extraordinarily incoherent story. It was not expected in the ordinary course of events that the deceased would wait till he was attacked when it is in evidence that the accused who were armed, were shouting from a distance of 50/60 feet that they had come to avenge the insult. Again it is highly improbable that the accused who were within the striking distance would permit the deceased to load the gun knowing full well that in case he was successful in loading the gun he would kill them.
15. It is in evidence that Rahim Bakhsh, Imtiaz All, Muhammad Yousuf, Mahanda, Amir Kabal, Abdur Rahim and Faqirla Choukidar suffered injuries as a result of the firing by the deceased and were present at the spot. They could have deposed about the incident. Their absence from the list of prosecution witnesses and the presence of Ramzan P. W., who is the brother of the deceased Mohabbat Hussain, P. W. who Is from the brotherhood and Fazal Din, a tenant of the deceased and partisan does create a doubt whether the version which is being given by them, is to be believed. Yet there is another circumstance which weighs heavily against the prosecution theory of the incident. The prosecution did pot satisfactorily explain the injuries on the accused, Muhammad Sharif accused had a contused wound 1" x '' skin deep, on the top of the head. We are in complete disagreement with the finding of the learned Sessions Judge that this injury could be self‑suffered ; firstly, because none would take the risk of inflicting the injury as suffered by Muhammad Sharif accused; and secondly, there is no opinion of the medical expert that it was self‑suffered wound. The eye witnesses would have us believed that Qurban Ali accused suffered pellet shots from a very close range. if that was so, the surround ing skin of the wounds would have been scorched and blackened by smoke and tattooed with un burnt grains of gun powder, but no blackening or scorching was found round the wounds. Therefore, it is obvious that Qurban Ali was fired from a considerable distance. The evidence of these witnesses is belied by the medical evidence. It follows, therefore, that the prosecution has failed to place the true facts of the case before the Court and the incident did not happen in the manner as alleged by the prosecution. In the circumstances, the plea raised on behalf of the appellants may not be established yet it may create doubt with regard to their guilt.
16. The upshot of the whole discussion is that we allow the appeal, set aside the conviction and sentences of the appel lants and direct that they should be released forthwith unless they are wanted in some other affair. The reference made by the learned Sessions Judge is rejected.
17. Before parting with this judgment we are constrained to remark that it has come to our notice in several cases that medical officers, who are entrusted with the medico‑legal work while giving their opinion in medico‑legal cases do it as a mere formal duty without proper care and attention. In our opinion, the evidence of a medical expert, particularly of a doctor who had conducted a post‑mortem examination is a very important piece of evidence in criminal trials and medical officers who are entrusted with this work should visualize that it is aw a mere formal duty to give evidence in the Courts of but the real purpose is that a doctor should give a correct opinion to enable a Court to arrive at a correct decision.
18. A copy of this judgment may be forwarded to the Secretary, Government of West Pakistan, Health Department, for information and necessary action.
A. E. Appeal allowed.
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