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Criminal Appeal No. 292 of 1968 and Murder Reference No. 20 of 1968, decided on 31st December 1968.
S. 32(1) read with Criminal Procedure Code (V of 1898), Ss. 161 & 162‑Dying declaration recorded by Police Officer under S. 161, Cr. P. C. during investiga tion‑Held, not hit by S. 162, Cr. P. C.‑‑Such dying declaration taken into consideration as a good piece of evidence in establishing charge of murder.
Shahidullah Khan and others v. The State P L D 1961 Dacca 1 ref.
S. 302 read with S. 299, Explanation 2‑Murder‑Death of deceased occurring from peritonitis and toxaemia following stab wound with sharp weapon-- Injury itself enough in ordinary course of nature to cause death and such death not resulting from any negligence in treatment or any other cause‑Accused, held, guilty of culpable homicide under S. 299, Explanation 2 and punishable for murder under S. 302.
Fazla and others v. Emperor A I R 1928 Lah. 851 (2) ; Naga Ba U v. Emperor A I R 1937 Rang. 429 ; Lal Singh and others v. Emperor A I R 1938 Lah. 31 and Syed Amin v. The State P L D 1959 Lah. 541 rel.
S. 302‑Murder‑Sentence-- Accused attacking deceased in her house with a premeditation to kill her‑No extenuating circumstances brought out from evidence on record‑Sentence of death maintained.
Syed Mahmood Shah Mashhadi for Appellant.
Wasim Sajjad for A.‑G. for the State.
Date of hearing : 5th December 1968.
.‑Karam Din (25) son of Sadar Din, caste Mughal, Railway employee, resident of Bazar Sathan, inside Bhatti Gate, Lahore, was charged for the offences under section 452/307/302, P. P. C. He was tried by the learned Additional Sassions Judge, Lahore, who, by his judgment dated the 30th of March 1967, convicted Karam Din on three counts and sentenced him to death to be hanged by neck till dead subject to confirmation of the death sentence by the High Court, under section 302, P. P. C., to undergo imprisonment for five years under section 307, P. P. C., to undergo R. I. for 1 years under section 452, P. P. C. The sentences awarded to the appellant under sections 307 and 452, P. P. C. were ordered to run concurrently and were to take effect only in the event of refusal of the High Court to confirm the death sentence. The condemned person has appealed against his conviction and sentences on the three counts. Proceedings have also been submitted for the confirmation of the death sentence by the High Court under section 374, Cr. P. C. We propose to dispose of the appeal and the reference by this judgment.
2. Ghulam Nabi, with his deceased wife Mst. Rashida Begum his two daughters, Mst. Sarwar Sultana (P. W. 16) and Perveen (P. W. 17), and his son Muhammad Ilyas (P. W. 18), resided in House No. 1433, Mohallah Sathan, inside Bhatti Gate, Lahore. In adjoining House No. 1432, Karam Din appellant, with his other family members, resided. About a year before the occurrence, Karam Din had married Mst. Mum taz Begum. She lived with the appellant in his house for about six months. During this period Mst. Mumtaz Begum, like good neighbours, would visit the house of the deceased. Mst. Mumtaz Begum one day left the house of her husband for the house of her parents in Gowalmandi and did not return to her husband. Appellant tried to pursuade Mst. Mumtaz Begum to return to the former's house but had not succeeded. While living with her parents Mst. Mumtaz Begum occasionally visited the house of the deceased. This aroused suspicion in the mind of the appellant that the deceased Mst. Rashida Begum was instrumen tal in dissuading Mst. Mumtaz Begum to return to his house. The appellant had also made this complaint to the deceased on some occasions before the occurrence. This is the motive in the case.
3. On the 13th of May 1966, at about 6‑30 a.m., Ghulam Nabi left the house for his duty. His other fancily members were present in the courtyard of the house. Karam Din appellant entered the house abusing and armed with a chhuri (Exh. P. 1) in his right hand. The appellant asked Mst. Rashida Begum deceased that she had ruined his house and that she should be taught a lesson. Mst. Rashida Begum screamed. The appellant gave a blow with his chhuri in the abdomen of Mst. Rashida Begum. Muhammad Ilyas came forward to rescue his mother. The appellant injured Muhammad Ilyas also. The shrieks of Mst. Rashida Begum had attracted two neighbours, namely, Feroze Din (P. W. 19) and Muhammad Aslam (P. W. 20). They rushed inside the house and saw the occurrence. They tried to catch the appellant but he escaped.
4. Muhammad Aslam and Feroze Din put Mst. Rashida Begum and Muhammad Ilyas, both in an injured condition, in a tonga and took them to the Mayo Hospital, Lahore, for medical aid. Foot Constable Siddiq, on duty at the Mayo Hospital, rang Police Post, Bhatti Gate about the admission of the two injured in the hospital. Khair Muhammad. A. S. I., Incharge Police Post, Bhatti Gate, Lahore, on receipt of the telephonic message, rushed to the Mayo Hospital, where he found that Mst. Rashida Begum and Muhammad Ilyas had been taken to the Operation Theatre and, therefore, he could not contact them for their statements. Mst. Sarwar Sultana was present there at the hospital and she lodged the report (Exh. P. A.) to the A. S. I., who took it down at 8‑55 a.m. on the same day, i.e. the 13th of May 1966. The A. S. I. left the hospital for the place of occurrence. On the way, Hafiz Ullah (P. W. 13) and Muham mad Riaz (P. W. 14) met him outside Bhatti Gate and informed him that the appellant was seen by them concealing himself in Pardah Bagh outside the Bhatti Gate. The A. S. I. with some constables and the two P. Ws. went there and the appellant was apprehended. On search of the person of the appellant chhuri (Exh. P. 1), which was blood‑stained, was re covered from the nefa of his shalwar which was taken into posses sion and sealed into a parcel vide memo. (Exh. P. B.). The Chemical Examiner found the chhuri (Exh. P. 1) to be stained with blood, but the Serologist opined that the stains of blood on the chhuri were disintegrated and their origin could not be determined. The Investigating Officer came to the house of the deceased where Mst. Perveen was present. The A. S. I. noticed some blood drops at the place of occurrence but they were incapable of being picked up. The site plan (Exh. P. J.) was also prepared by him. The A. S. I. then returned to the hospital.
5. Doctor Zafarullah examined Mst. Rashida Begum on the 13th of May 1966, at 7‑30 a.m. and found the following injury on her person :‑
(1) A stab in abdomen‑oblique prolapse of intestines, and prepared the injury‑sheet (Exh. P. G.) He also examined Muhammad Ilyas on the 13th of May 1966 at 6‑50 a.m. and found the following injuries on his person :‑
(1) An incised wound ant‑aspect of left shoulder-joint 1" x " x depth not probed.
(2) An incised wound left ant‑axillary fold extending 1 x 1" x depth not probed.
He prepared the injury‑sheet (Exh. P. H.) of the injured person. Doctor Zafrullah, who was then serving in the Mayo Hospital, had left for Libia. Abdul Ghani (P. W. 15), Record Keeper, Mayo Hospital, Lahore, recognized the handwriting of Dr. Zafrullah on the injury‑sheets (Exhs. P. G. and P. H.).
6. Mst. Rashida Begum was operated upon. Dr. Javed Bashir (P. W. 2) described the operation ac under : ‑
"With left paramedian incision the abdomen was open on exploration :‑
(1) Perforation in the juginum that was sutured.
(2) Two perforations in the juginum close-by and a cut in mesentery, resection of the segment (small) with end to end anastomosis performed.
(3) Another cut in meso juginum with active bleeding that was sutured.
(4) A cut at the route of mesentery cutting lower part of the superior mesentric vein that was ligated. Abdomen closed in layers.
The patient expired on 30th May 1966 at 9‑00 a.m. in spite of every effort and possible medical and surgical aid."
In cross‑examination, the doctor stated :‑
"I had been attending Mst. Rashida deceased even after her operation. There was no reaction after the blood trans fusion. There was no possibility of the deceased being suffer ing from any heart disease. At least twice the blood of the deceased was tested and it was found normal. I do not remember as to how many days after the last blood testing was done the deceased had expired. However, the blood is tested whenever it is asked by visiting Surgeon or the Attend ing Doctor thinks it necessary."
Doctor Major Muhammad Khalid Chaudhry (P. W. 1) performed the post‑mortem examination on the dead body of Mst. Rashida Begum on the 31st of May 1966 at 3‑00 p.m. and found the following :‑
(1) An operation wound 4" long (direction shown in the diagram) bearing 6 stitches and five tension stitches passing through pieces of rubber tubing. The wound was situated over the left side of umbilicus. The upper part of the wound was at a distance of 2" from the naval while the lower end of the wound was about " from the riddle line.
(2) A small w‑and measuring " x " abdominal cavity about 1 " from the wound No. 1 for the drainage tube inserted by the Surgeon. On opening the abdomen the small intestines and large intestines had been found to be in a state of sub- acute congestion and the various coils were adherent to each other. The omentum was glued with various parts of the small intestines. Four perforations in jejunum had sutured. There was an end to end anastomosis in part of the jejunum at a distance of six inches from the duodenon jejanum at flexure. A little beyond this anastomosis the mesentery of the jejunum was found sutured at two places and the superior mesentric vein was found ligatured. A pocket of puss mixed with blood was found lying between the left side of the mesentery and the posterior abdominal wall. The volume of puss on measurement was found to be four ounces. About two ounces of puss and blood was also found in the pouch of douglas behind the uterus.
Death, in the opinion of the doctor, occurred from peritonitis and toxaemia following stab wound with a sharp weapon. This injury was enough in ordinary course of nature to cause death. Proba ble time elapsed between injury and death was 17 to 18 days. In cross‑examination, he stated :‑
"Some patients may survive with such type of injury depend ing upon a large number of unnumerable factors which cannot be innumerated."
7. On return to the hospital from the scene of occurrence, the A. S. I. approached the doctor incharge to find out if Mst. Rashida Begum and Muhammad Ilyas were capable of making statements. Both the injured were not fit to make statements, on the 13th and the 14th of May 1966. On the 16th of May 1966, the doctor found the two injured in a fit condition to make statements. The A. S. I. recorded the statement (Exh. P. K/2) of Mst. Rashida Begum on the 16th of May 1966. This statement was read over to her by the A. S. I. and she admitted it to be correct. She described the motive of the crime and directly, charged the appellant for having stabbed her with a chhuri. On the expiry of Mst. Rashida Begum on the 30th of May 1966, the offence in one of the counts was changed to section 302, P. P. C.
8. The appellant had pleaded not guilty to the charge. At the trial in his statement under section 342, Cr. P. C., the appel lant stated :‑
"I and my wife lived in our house adjoining the deceased's house; and then my wife (accompanied by her paternal‑uncle) went away from my house to her said uncle's house, on the occasion of the birth of a son to her said uncle. She went there with my permission. She did not use to visit the deceased's house.
Adam and Feroze P. Ws. besides various other men, used to visit the deceased's house on account of their having illicit relations with the deceased's daughter Mst. Sarwar Sultana P. W. 1 used to object to this thing and I protested once before Ilyas P. W. and on another occasion before Muham mad Aslam P. W. Thereupon, Ilyas P. W. gave me a beating ; but I, being a poor man, desisted from reporting the matter to the police. Then a theft took place in my house ; but I, being a poor man, did not report ever this incident to the police. For these reasons I have falsely been implicated in this case ; and in the same circumstances the P. Ws. have deposed against me. Once, the deceased's husband called me to his house for repairs, of a heavy tin box. When I was repairing it in the house of the deceased Hafiz Ullah P. W. came there and asked Mst. Sarwar Sultana why she was taking too long a time for her make up, and why did she not see to it that she became ready for going with him, before his arriving there. Thereupon, I protested to Ilyas that this behaviour of Mst. Sarwar Sultana was bad. I am innocent. The deceased might have been murdered by one of the various persons who used to visit her house for immoral purposes. I do not know who had killed her."
On his prayer, the appellant was produced before us and was heard personally also.
9. Mst. Sarwar Sultana (P. W. 16), daughter of the deceased, Mst. Perveen (P. W. 17), another daughter of the deceased, Muhammad Ilyas (P. W. 18), the injured son of the deceased, Feroze Din (P. W. 19), a neighbour and Muhammad Aslam (P. W. 20), another neighbour of the deceased and the appellant furnished ocular evidence. Their evidence, in short, is that on the 13th of May 1966, at about 6‑30 a.m the deceased Mst. Rashida Begum. P. Ws. Mst. Sarwar Sultana and Mst. Perveen and Muhammad Ilyas were present inside the house. The appellant suddenly came into the courtyard armed with a chhuri (Exh. P. 1). He abused Mst. Rashida Begum and shouted that since she had ruined his house he would not spare her life. At this the appellant gave a chhuri blow to the deceased on her abdomen, Muhammad Ilyas tried to rescue his mother. The appellant inflicted chhuri blows on him also on his left shoulder and below left armpit. The alarm raised by the inmates had attracted Feroze Din and Muhammad Alsam into the courtyard. Feroze and Aslam did not succeed in catching hold of the appellant and the appellant escaped with the chhuri. Both Feroze and Aslam had seen the appellant inflicting chhuri blows to the deceased and Muhammad Ilyas. Feroze Din and Muham mad Aslam transported Mst. Rashida Bagum and Muhammad Ilyas to the Mayo Hospital in a tonga. Mst. Sarwar Sultana also followed them and lodged her report with A. S. I. Khair Muhammad.
10. Hafiz Ullah (P. W. 13) and Muhammad Riaz (P. W. 14) both unanimously stated that the appellant and Muhammad Ilyas P. W. were known to them. Both had come to know about the murder of Mst. Rashida Begum and injury of Muhammad Ilyas in the morning of the day of the occurrence. Hafiz Ullah had come across P. W. Muhammad Riaz near the Bhatti Gate. They were passing by the Pardah Bagh of Bhatti Gate and saw the appellant hiding himself in the hedge of the Pardah Bagh. Both of them went to inform the police and on their way to the Police Post, Bhatti Gate they came across A. S. I. Khair Muhammad and informed him. The A. S. I., the two witnesses and the police party went to the Pardah Bagh and arrested the appellant. His person was searched by the A. S. I. and the chhuri (Exh. P. 1) was recovered from the nefa of the trousers of the appellant, by memo. (Exh. P. P.). Both these witnesses deposed about the arrest of the appellant and the recovery of the chhuri (Exh. P. 1) from the appellant in their presence.
11. The learned Additional Sessions Judge believed the evidence of the eye‑witnesses and the evidence of the arrest of the appellant and the recovery of the chhuri (Exh. P. 1) from his nefa. This cruel murder of Mst. Rashida Begum and attempt ed murder of Muhammad Ryas took place inside their house. Muhammad Ilyas is injured. P. Ws. Mst. Sarwar Sultana and Mst. Perveen and Muhammad Ilyas are residents of the house. They are, therefore, natural witnesses of the occurrence. P. Ws. Feroze Din and Muhammad Aslam are neighbours of the deceas ed and the appellant and they also deposed to have seen the occurrence. All these witnesses have no animosity with the appellant and had no reason to falsely implicate him for the crime. There is strong motive which actuated the appellant to commit the murder and the attempted murder.
12. The learned counsel for the appellant could not success fully assail the prosecution evidence, nor could he find loop holes in the evidence. Besides the direct evidence of the wit nesses ; the dying declaration (Exh. P. K/1) of Mst. Rashid a Begum, recorded by A. S. I. Khair Muhammad on the 16th of May 1966, also implicates the appellant and is a credible piece of evidence against him. This dying statement was recorded during investigation by the A. S. I. under section 161, Cr. P. C. The value of this dying statement is not minimised by the fact that it had been recorded by the A. S. I. under section 161, a Cr. P. C. during his investigation. Section 32 of the Evidence Act provides :‑
"Statements, written or verbal, of relevant facts made by a person who is dead.
are themselves relevant facts in the following cases :‑
(1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such state ments are relevant whether the person who made them was or was not at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
Subsection (1) of section 162, Cr. P. C. precludes statements made by any person to the police officer in the course of an investigation, when reduced into writing for use for any purpose, at an inquiry or trial in respect of any offence under investigation at the time when such statement was made, but subsection (2), ibid provides :‑
"Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1) of the Evidence Act or to affect the provisions of section 27 of that Act."
Thus, the dying declaration to which clause (1) of section 32 of the Evidence Act applies would not be hit by section 162 of they Cr. P. C. In Shahidullah Khan and others v. The State (P L D 1961 Dacca 1) the same view was taken. The learned trial Court has not taken into con sideration this dying declaration of Mst. Rashida Begum deceased. However, we propose to take it into consideration as a good piece of evidence in establishing the charge of murder against the appellant.
13. We, therefore, find no ground to differ with the learned trial Court who convicted the appellant on all the three counts. The learned counsel for the appellant argued that accord ing to the opinion of Dr. Major Muhammad Khalid Chaudhry (P. W. 1), the death of Mst. Rashdia Begum had occurred from peritonitis and toxaemia following stab wound with a sharp weapon and that some patients may survive such type of injury and as such the offence committed by the appellant, if any, would fall under section 326, P. P. C. This argument is devoid of any force. Doctor Major Muhammad Khalid Chaudhry has categorically stated that the injury on the person of Mst. Rashida Begum was enough in the ordinary course of nature, to cause death. Dr. Javed Bashir Ghori (P. W. 2) has also deposed :‑
"The patient expired on 30th May 1966 at 9 a.m. in spite of every effort and possible medical and surgical aid."
He also stated in cross‑examination :‑
"I had been attending Mst. Rashida deceased even after her operation. There was no reaction after the blood trans fusion. There was no possibility of the deceased being suffering from any heart disease. At least twice the blood of the deceased was tested and it was found normal."
Thus, it is proved that the death of Mst. Rashida Begum occur red from peritonitis and toxaemia following stab wound with a sharp weapon which injury was enough in the ordinary course of nature to cause death and that the same death was not the result of any negligence in the treatment or from any other cause not connected with the injury. Section 299, P. P. C. read with explanation (2) reads as under :‑
"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Explanation 2.‑Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented."
In Fazla and others v. Emperor (A I R 1928 Lah. 351 (2)) it was held :‑
"If a person receives grievous injuries and is detained in hospital and as a result of those injuries pneumonia supervenes and the victim dies, the perpetrators of the attack upon him are guilty of murder."
In Naga Ba U v. Emperor (A I R 1937 Rang. 429) it was held :‑
"When the disease which actually causes death is meningitis peritonitis, tetanus, pneumonia, etc., and it is a natural and probable result of the injury, the person who inflicts the injury must be held responsible for the disease arising from the injury."
In Lal Singh and others v. Emperor (A I R 1938 Lah. 31) a person who seriously injured by the accused and died subsequently, but in post‑mortem examination it was found that the immediate cause of death was gangrene which had set in the right foot and leg as a result of injury. It was held :‑
"That the accused were guilty of an offence under S. 302."
As such, if the death is caused due to Gangrene, tetanus, peritoni tis or toxaemia, etc., which is the direct result of that injury, the offender would be guilty of an offence of culpable homicide as provided by section 299, Explanation 2 of the P. P. C. and the perpetrator of the offence would be guilty of the offence of murder under section 302, P. P. C. We are also fortified in this view by Syed Amin v. The State (P L D 1959 Lah. 541) with the above reasoning, we hold that the appellant is guilty of the offence of murder under section 302, P. P. C.
14. The learned counsel for the appellant argued, in the alternative, that the appellant is entitled to a lesser punishment, because he appears to have committed the crime of murder in a provocation of abuses by the deceased and her quarrel with him. He relies on the evidence of Feroze Din who stated in cross‑examination :‑
"Aslam and I heard quarrelling voices . . . . . . . .
The quarrelling voices which I heard were of the deceased and the accused."
He also takes support from the evidence of Muhammad Aslim (P. W. 20), who stated in cross‑examination :‑
"When Feroze and I were standing in front of my house we heard the voices of exchanging. We heard these voices for about hardly two minutes. . . . . . . . . . . . .
The aforesaid voices of exchange of abuse were coming from the house of the accused as well as the deceased."
This argument is also baseless. P. W. Muhammad Aslam has also stated in cross‑examination :‑
"We could not clearly make out these voices." Mst. Perveen (P. W. 17) stated in her examination‑in‑chief :‑
"The true position is that the accused did abuse my mother."
Thus, the abuses were started by the appellant and the deceased might have retaliated in abuses which is but natural. The appel lant attacked the deceased in her house with a premeditation to kill her. No extenuating circumstances have been brought out from the evidence on record. The argument of the learned coun sel on this score also falls to the ground.
15. We, therefore, maintain the conviction and sentences of the appellant on all the three counts, under section 302/307/452 of the Pakistan Penal Code and dismiss his appeal. The sentence of death of the appellant is confirmed.
Appeal dismissed.
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