PLJ 2022 Cr.C. 476
----Ss. 302/148/149/109--Question appears whether injury to deceased was accidental as suggested by the defence or it was homicidal--Motive double edge weapon--Joint recovery--Acquittal of--Doctor/PW held autopsy on the dead body of deceased and observed injuries--Injury no.1. Contused swelling in an area of 20 cm x 30 cm on back of abdomen across the vertebral column, 6 cm from right iliac crust, 6 cm from mid line of buttock--On dissection of Injury No. 1, Large hematoma present with L2, L3, L4 vertebrae fractured and spinal cord damaged--Compression as in a fall on to feet from height may crush one or more vertebrae yet often involved with adjacent bony damage to vertebral body--Doctor has not explained how much damage was caused to spinal cord in this case--Vertebrae column is divided into four curves, which has its own response to the injuries as per Medical Jurisprudence depending upon nature of injury--Fall from a height on to the buttocks is also one of the causes of fracture of vertebral column; this has a matching sense with Injury No. 1 wherein contusions found near the area of right illiac crust and buttocks--Doctor has cited the weapon of offence as کندھ آلہ وتیز دھار آلہ in postmortem report yet nature of injuries described in the postmortem give somewhat different connotation--Thus, prosecution loses its limb of medical account to catch the offender with criminal liability, as such, the medical evidence is found to be contradicting the ocular account which cannot be relied upon--Draftsman who appeared as PW stated that he did not see any footprints of anybody on points Nos. 1, 2 & 3--The presence of claimed eye-witnesses at the time and place of occurrence could not be proved; therefore, their testimony cannot be considered as credible or trustworthy--Motive being double edged weapon cut both ways which is not helpful to the prosecution--Recovery of hatchets from the accused is of no use as were not blood stained--Panorama of prosecution case theory is not confidence inspiring--Recoveries being joint are inconsequential and motive being double edged weapon is of no help to the prosecution--Appeals are allowed.
[Pp. 482, 483, 486, 487, 488, 489 & 490] A, B, C, D, E, J,
K, M, N, O, P, Q, R, S, T & U
2021 SCMR 612; 2019 SCMR 1045; 2021 SCMR 1373; 2017 SCMR 596; 2019 SCMR 652; 2017 SCMR 1672; 2011 SCMR 1673; 2021 SCMR 873; 2021 SCMR 736 ref.
----Ss. 302/148/149/109--Medical jurisprudence, principles of--Bruises/Contusions--“Bruises or contusions are injuries which are caused by a blow from a blunt weapon, such as a club (lathi), whip, iron bar, stone, ball, fingers, fist, boots or by a fall, or by crushing or compression. These are accompanied by a painful swelling and crushing or tearing of the subcutaneous tissues without solution of continuity of the skin--Swelling is due to the rupture of the small subcutaneous blood vessels producing in the cellular tissues, extravasation of blood, which is known as ecchymosis. The term effusion of blood is ordinarily limited to extravasation of blood in a pleural cavity. Haematomas are formed when large blood vessels are injured. [P. 483] C
Textbook of Medical Jurisprudence
and Toxicology by Jaising P Modi, ref.
----Ss. 302/148/149/109--Medical jurisprudence, principles of--Bruises/Contusions and Haematomas--Contusion or bruises are formed due to the rupture of small subcutaneous blood vessels. Skin is intact--Haematomas are formed when there is a collection of blood due to injury to large blood vessels--Swelling, tenderness and discoloration of the skin are the signs of contusion/ haematomas--They appear after sustaining the injury. Sometimes, it is delayed by one or two days--They can appear either at the site of impact or away from it. Blood may gravitate to some other place in the same anatomical plane-‘black eye'--There is extravasation of blood, which is known as ecchymosis with or without abrasion over it--They do not occur due to post-mortem violence. [P. 484] D
Textbook of Medical Jurisprudence
and Toxicology by Jaising P MODI, ref.
----Ss. 302/148/149/109--Medical jurisprudence, principles of--Age of Bruises or Contusions and Haematomas--Dark red=18-24 hours; Blue, bluish-black, brown, livid red=1-4 days; Greenish=5-6 days & Yellow=7-12 days--This yellow colour slowly fades in tint till the 14th or 15th day when the skin regains its normal appearance--These changes do not occur uniformly--Always a combination of colours is seen, which cannot be specifically named--It is called as variegated colour appearance and the duration is five days and beyond. [P. 484] E
Textbook of Medical Jurisprudence
and Toxicology by Jaising P MODI, ref.
----Ss. 302/148/149/109--Medical jurisprudence, principles of--Result of bruises--Bruises are, as a rule, simple injuries--They are seldom fatal unless accompanied by the rupture of an internal organ, or by extensive crushing of the tissues and large extravasation of blood, producing sloughing and gangrene of the parts--However, several bruises, though trivial individually, may cause death from shock.
[P. 484] F
Textbook of Medical Jurisprudence and
Toxicology by Jaising P MODI, ref.
----Ss. 302/148/149/109--Medical jurisprudence, principles of- Injuries of the spine and spinal cord are generally accidental, occasionally homicidal, rarely suicidal--Fracture of spine is produced by Direct violence and Indirectly by forcible bending of body or by a fall on buttocks, feet, etc. [P. 485] G
Textbook of Forensic Medicine and Toxicology by
Dr. S. Siddiq Husain ref.
----Ss. 302/148/149/109--Medical jurisprudence, principles of--Fractures are generally associated with dislocation and these cause compression, laceration or crushing of the cord which produce paralysis of the body below the seat of injury--If fracture occurs above 4th cervical vertebra, it is usually immediately fatal, owing to implication of the phrenic nerves--If the three lower cervical vertebrae are injured death is usually within 24 hour--In other vertebrae, the results will depend upon the site of the injury.
[P. 485] H
Textbook of Forensic Medicine and Toxicology by
Dr. S. Siddiq Husain ref.
----Ss. 302/148/149/109--Medical jurisprudence, principles of--Fractures are generally associated with dislocation causing compression, laceration or crushing of cord; Even instantaneous death is not possible in such injuries except injury to cervical discs but herein death occurred within 35 to 60 minutes. [P. 485] I
----Ss. 302/148/149/109--Medical jurisprudence, principles of--Fractures of the spine may be due to direct violence especially if disease is present--They often occur from indirect violence such as a blow on the chin, fall of a weight on the head, hitting the head when diving into shallow water, or fall from a height on to the buttock- If the level of compression is above the fourth cervical segment, death is seldom long delayed on account of asphyxia resulting from paralysis of the muscles which control respiration. Death usually occurs within 24 hours if the three lower cervical vertebrae are injured. When the upper dorsal vertebrae have been fractured, death may occur after 2 or 3 weeks due to complications of being bed-ridden, viz, bed sores, cystitis, pyelonephritis, etc. Life may be prolonged for years with partial paralysis of the lower limbs if the lower dorsal or upper lumber vertebrae have been injured. [P. 487] L
Textbook of Medical Jurisprudence, Forensic Medicine and
Toxicology by Dr. C. K. Parikh ref.
Mr. Mehram Ali Bali, Advocate for Appellant. (Riasat Ali)
M/s. Mohsin Sheikh and Ahmed Raza, Advocates for Appellant. (Asif Ali).
Mr. Sana Ullah, Deputy Prosecutor General for State.
M/s. Falak Sher Bakhsh Gill and Qasim Ijaz Sumra, Advocates for Complainant.
Date of hearing: 2.11.2021.
PLJ 2022 Cr.C. 476
[Lahore High Court, Lahore]
Present: Muhammad Amjad Rafiq, J.
RIASAT ALI and others--Appellants
versus
STATE and others--Respondents
Crl. A. Nos. 35447, 43773 & 47243 & Crl. Rev. No. 47259 of 2017,
heard on 2.11.2021.
Judgment
Riasat Ali and Asif Ali under the charge of homicidal killing of Muhammad Ali were prosecuted through a case set in FIR No. 369 dated 21.11.2014 registered under Sections 302, 148, 149 & 109, PPC at Police Station Sandal Bar, District Faisalabad whereby learned Trial Court convicted and sentenced them as under:
“Imprisonment for life under Section 302, PPC each and compensation of Rs. 5,00,000/ under Section 544-A, Cr.P.C. In default shall further undergo simple imprisonment for six months each.”
They preferred cited criminal appeals against their conviction and sentence whereas the complainant preferred criminal revision against Respondents No. 2 & 3 therein and criminal appeal against acquittal of Respondents No. 2 to 5 therein as cited above which are being decided through this common judgment.
2. On wee hours of winter morning on 21.11.2014 when the clock chimed 10:00 a.m., Muhammad Ali, brother of the complainant Umer Hayat proceeded from his house situated in Chak No. 56/G.B. to his leased land owned by one Rana Tahir to fetch some fodder; as he reached near Killa No. 8 falling in Square No. 56, he found Asif Ali, Riasat Ali carrying hatchets and Alamgir with sickle around his bull-cart; before he could stop the bull cart, Asif Ali and Riasat Ali started giving hatchets blows on his back, he in order to save his life jumped from the bull-cart yet Alamgir halted him and inflicted sickle blow on his right elbow joint. He was chased and was given multiple blows of hatchets on different parts of his body. The occurrence was claimed to have seen by complainant, Sarfraz Ahmad and Muhammad Asif who were working in nearby fields. They rushed forward to save the deceased but accused persons fled away therefrom; they attended Muhammad Ali, who succumbed to the injuries at the spot. Motive behind the occurrence was alleged a quarrel between deceased and accused persons took place 5/6 days prior over the fight of dogs.
3. Mujahid Iqbal S.I/I.O. (PW-11) met the complainant at Adda Bagh, where complainant presented a written application (Ex.PH), he initiated proceedings over it and sent the same to Police Station for registration of FIR. Whereafter, he reached at place of occurrence and performed following functions:
Examined the dead body, prepared injury statement and inquest report. He handed over the dead body to Ashiq Ali 3607/C for postmortem examination. He inspected the place of occurrence, prepared inspection note, rough site-plan, collected blood stained earth, took into possession bull-cart and after postmortem examination, last worn clothes of the deceased were presented to him and he recorded the statements of witnesses.
On 21.11.2014 complainant submitted another application (Ex.PJ) which was transformed into the supplementary statement. On 10.12.2014, he arrested Asif Ali and got recovered hatchet (P-1) vide recovery memo. (Ex.PE); on 19.12.2014, he arrested accused Riasat Ali and on his disclosure recovered hatchet (P-2) vide recovery memo. (Ex.PF). Lastly, he got prepared report under Section 173, Cr.P.C. from the Station House Officer concerned.
4. Dr. Syed Ata ul Munamm (PW-1) conducted postmortem examination on the dead body of deceased Muhammad Ali on 21.11.2014 at 03:00 p.m. and observed four injuries on his person. In his opinion cause of death in this case was Injury No. 1 which damaged lumbar vertebrae No. 2, 3, 4 and spinal cord leading to spinal shock and death; other injuries played trivial role in death, all injuries were ante-mortem; the Injury No. 1 was sufficient to cause death in ordinary course of nature. The probable duration between injuries and death was 15-30 minutes and between death and postmortem examination was within 12-hours.
5. The prosecution examined eleven witnesses and produced report of Forensic DNA and Serology Analysis Ex.PQ as documentary evidence. The appellants, in their statements recorded under Section 342, Cr.P.C., denied and controverted all the allegations leveled against them, accused Asif Ali neither opted to make statement under Section 340(2), Cr.P.C. nor produced anything in his defence whereas accused Riasat Ali produced documents Ex.DA to Ex.DD/1-2 in his defence, however he has not made his statement under Section 340(2), Cr.P.C.
6. Learned trial Court, upon conclusion of the trial, convicted and sentenced the appellants, as stated above vide impugned judgment dated 18.05.2017. Hence, these criminal appeals and criminal revision.
7. Learned counsels for the appellants put much zeal in arguments claiming the appellants as innocent with least concern with the occurrence; other argument was of acquittal of five co-accused during trial on the same set of evidence; available conflict between ocular and medical was suggestive of falling of deceased from an out of control bull-cart; presence of witnesses and the deceased around the leased land was without any evidence. At the end, they prayed for acquittal of the appellants.
8. Learned Deputy Prosecutor General appearing for the State assisted by learned counsels for the complainant catches the criminal liability of accused/appellants stating that it was broad daylight occurrence where identity of the accused/appellants was not at stake; presence of witnesses and deceased around leased land was natural; acquitted co-accused were carrying role of conspiracy, distinguishable to that of the present appellants; recovery of hatchets as an additional support to prosecution; both the appellants have contributed in causing Injury No. 1 which was cause of death. Lastly, prayed for dismissal of both the appeals filed by the appellants and acceptance of criminal revision as well as criminal appeal filed by the complainant.
9. Heard the respective contentions of proponents; record perused.
INJURIES:
1. Contused swelling in an area of 20 cm x 30 cm on back of abdomen across the vertebral column, 6 cm from right iliac crust, 6 cm from mid line of buttock.
3. Laceration 4 cm x 1 cm on back of right forearm, 6 cm from right elbow, 17 cm from right wrist.
4. Laceration 3 cm x 0.8 cm, on right thigh, 13 cm from right knee, 30 cm from right iliac crest.
On dissection of Injury No. 1, he found as under:
Large hematoma present with L2, L3, L4 vertebrae fractured and spinal cord damaged.
Injury No. 1 is the most suspicious injury which is the cause of death; it is a contused swelling measuring 20 cm x 30 cm on the back of body of the deceased. No laceration, no compressed wound, no depression on or around Injury No. 1 was visible during the examination; however, doctor observed large hematoma present with L2, L3, L4 vertebrae fractured and spinal cord damaged. Assailants were armed with hatchets, though it has not been deposed that from which side of the hatchet the assailants caused the injury yet no incised wound was visible which shows that hatchet was used from the hind side; therefore, it was expected that some depressed wound or crushed wound should have been appeared on the body of the deceased particularly when it is mentioned in the inquest report that the deceased was a skinny man/maintains thin body; therefore, hypothesis put forth by the accused during cross-examination that the deceased had fallen from an out of control bull-cart cannot be ruled out outrightly. Though doctor has denied the suggestion and deposed during cross-examination that “There is no possibility of any of the injuries can be caused while hitting against solid articles i.e. bricks or stone etc.” yet it remained a mystery that how such injury was caused and in what manners; suggestions were put by the defence that deceased firstly fell on the bull-cart and then on the ground. Question appears whether injury to deceased was accidental as suggested by the defence or it was homicidal as claimed by the prosecution could only be thrashed in the light of literature available on such type of injury. The spinal injuries are generally accidental, rarely suicidal and they are occasionally homicidal. As the doctor has observed the nature of Injury No. 1 as contused swelling, therefore, to begin with how contusions/ bruises are caused, reference is made to the observation of a renowned forensic expert Mr. Jaising P MODI who in his Textbook of Medical Jurisprudence and Toxicology has well explained the nature and causes of such injury in following terms:
It shows that injury can be caused by a blow from a blunt weapon or by, a fall, crushing or compression. He further explained appearance of such injury which means how it look like and reasons of such appearance with following observation:-
• Contusion or bruises are formed due to the rupture of small subcutaneous blood vessels. Skin is intact.
• Haematomas are formed when there is a collection of blood due to injury to large blood vessels.
• They appear after sustaining the injury. Sometimes, it is delayed by one or two days.
• They can appear either at the site of impact or away from it. Blood may gravitate to some other place in the same anatomical plane-‘black eye'.
• They do not occur due to post-mortem violence.
Age of Bruises or Contusions and Haematomas
Dark red 18-24 hours
Blue, bluish-black, brown, livid red 1-4 days
Yellow 7-12 days
• This yellow colour slowly fades in tint till the 14th or 15th day when the skin regains its normal appearance.
• These changes do not occur uniformly. Always a combination of colours is seen, which cannot be specifically named. It is called as variegated colour appearance and the duration is five days and beyond.
In this case doctor has observed hematoma over Injury No. 1 which shows that large blood vessels were damaged. He further commented about fatality of such type of injury as under:-
1. Direct violence as blow, etc.
2. Indirectly by forcible bending of body or by a fall on buttocks, feet, etc.
If the three lower cervical vertebrae are injured death is usually within 24 hours.
In other vertebrae, the results will depend upon the site of the injury.”
This expression was also highlighted in Simpson’s Forensic Medicine Tenth Edition by Bernard Knight which is reproduced as under:
“The Spine may be compressed, extended or angulated. The damage may occur at a disc or at a vertebral body or both. The neural arches as well as transverse processes may be damaged. The vertebral artery may be torn in the atlas, something when the transverse process is fractured from a blow on the side of the neck. This can lead to a fatal subarachnoid haemorrhage.
Compression, as in a fall on to the feet from a height, may crush one or more vertebral bodies, but a much more common lesion is a ‘wedge’ fracture, where violent hyperflexion causes crushing and collapse of the anterior part of a vertebral body, with consequent angulation and narrowing of the spinal canal. Lateral or anteroposterior force can cause a fracture dislocation, with one vertebral body riding over another, again with crushing of the cord in the distorted canal.
Discs can be torn or avulsed as a pure lesion, but are often involved with adjacent bony damage to the vertebral body. Lateral dislocation of the spine at a disc can also distort or obliterate the spinal canal and cause cord damage.”
The above copious references show that injury can be caused by a blunt weapon as well yet it must have systemic symptoms as highlighted above and in this case following are missing:
1. Discolouration of skin has not been reported by the doctor to gauge the time of injury.
2. If spinal cord was damaged, what was its nature either compressed, crushed, dislocated or any other condition.
3. Whether injury was result of direct blow on the spine or fracture was caused due to fall on to the feet from height.
So it could not be proved by the prosecution that how Injury No. 1 was caused and in what circumstances. To understand this dogma it would be appropriate that position of vertebrae column and its vertebrae should be explained with following diagrams:
Dr. C. K. Parikh in his Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology defines Spine and Spinal Cord as under:
15. For the reasons recorded hereinabove, Criminal Revision No. 47259 of 2017 seeking enhancement of sentence of the Respondents No. 2 & 3 and Criminal Appeal No. 47243 of 2017 against acquittal of Respondents No. 2 to 5 are without any merit, the same stand dismissed in limine.
(K.Q.B.) Appeals allowed
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