P L D 1973 Peshawar 150 (PLP)

SHAH ZAMAN BABAR, J.-Gul Naushad, aged 40 years, son of Mian Nur, and Khalid, aged 50 years, son of Shah Raza both of Mahallah Banrb, Mlngora, were charged for the murders of their co-villagers named Bakht Amin and Fida Hussain and for voluntarily causing simple hurt with a knife to P. W. Zubair, on 9th day of August 1971 in Mohallah Banrh. The inquiry Magistrate on commitment of the two accused framed the follow ing charges: "Firstly, that you on or about the 9th day of August 1971 in the limits of Banrh in furtherance of your common intention commit slid the murder of Bakht Amin and Fida Hussain by stabbing them with a knife and thereby committed an offence punishable under section 302/34, P. P. C. and within Sessions Court cognizance. Secondly, that you, on or about the 9th day of August 1971, in the limits of Banrh Nar in furtherance of your common intention voluntarily caused simple hurt to P. W. Zubair with a knife anti thereby committed an offence punishable under section 324/34, P. P. C. and within Sessions Court cognizance. And I hereby direct that you be tried by the said Court on the said charge. 14th February 1972 (Sd.) MIC Saidu." At the commencement of the trial Mr. Muhammad Humayun Khan Sessions Judge, Swat framed the following two amended charges: I, Muhammad Humayun Khan, Session Judge, Swat hereby charge you, Gul Naushad accused as follows: That you, on or about the 9th day of August 1971, Banrh (extension of Mingora town) did commit the murder of Bakht Amin alias Mene and Fida Hussain by stabbing them and intentionally causing their deaths, and thereby committed an offence punishable under section 302 of P. P- C. and within my cognizance. And I hereby direct that you be tried by the said Court on the said charge." I Muhammad Humayun Khan, Sessions Judge Swat hereby charge you Khalid accused as follows : That you on 9th day of August 1971 at Banrh (extension of Mingora Town) abetted the act of double murder of Bakht Amin alias Mene and Fida Hussain by your co-accused Gut Naushad, and thereby committed an offence punishable under section 302/109, P. P. C. and within my cognizance. And I hereby direct that you be tried by the said Court on the said charge." At the conclusion of the trial, the learned Sessions Judge by his judgment dated 11-3-1972, acquitted Khalid accused but while convicting Gut Naushad passed this order: "I sentence Gut Naushad accused to transportation for life under section 302, P. P. C. for causing the double murder of Fida Hussain and Bakht Amin." Gul Naushad has appealed from jail.

2. The parties are residents of Mohallah Barnh, Mingora, District Swat. The complainant party are Mirasis while Gut Naushad appellant 19 house tenant of Khalid, the acquitted accused. The house of P. W. Zubair is situated in the same Galli as that of the appellant, distant 53 paces from each other. It appears that on 9-8-1971 at about 2/2-30 p. m. a stranger knocked at the door of Gut Naushad by mistake. Gut Naushad came out of his house and chased the stranger. By the time P. W. Zubair, a Mirasi, was returning home from outside. He saw the appellant chasing a stranger. The appellant abandoned the chase and instead addressed Zubair : "You Daman (Mirasi), you should hang a signboard on your house". Zubair asked the reasons for the appellan 's saying so. '1 he appellant replied that people come to tease them instead of the former. Zubair agreed that he will bang a signboard on his house and went into his baithak attached to his house. In the baithak Fida Hussain, brother of Zubair, Bakht Amin and Gal Yar P. W., a servant of Zubair were sitting. After about 6/7 minutes of the altercation between the appellant and Zubair, the appellant armed with knife accompanied by Khalid armed with an axe came to the door of the baithak. The appellant shouted at the inmates to come out and tell him why Zubair had quarrelled with him. Fida Hussain got up and asked the appellant as to what was the matter. The appellant inflicted a blow with a knife in the abdomen of Fidda Hussain. Fida Hussain on receipt of the injury entered the Kotha adjacent to the baithak. Bakht Amin advanced towards the appellant in order to snatch the knife from him. The appellant inflicted a stab blow with the same knife to Bakht Amin. Zubair caught hold of the knife from the appellant but on receipt of injuries on his thumb he left the appellant and fell down. P. W. Gut Yar also attempted to apprehend the appellant but the appellant attacked Gut Yar. Gut Yar was not injured with the knife but instead his shirt and sh2lwar were torn with the blow. Gut Naushad ran away. Zubair went to Al Amin Mill and informed the police at P. S. Mingora on telephone about the occurrence. P. W. Muhammad Sharif Jamadar of P. S. Mingora came to the spot. P. W. Mohammed Rafiq Khan S. H. O. P. S. Mingora was also informed of the occurrence while on his way to the police station and he came to the site of occurrence. Zubair lodged his report Exh. P. A/1 to the S. I. at 3-15 p.m. The report was scribed by the S. I. and sent to the P. S. for registration of the case. At the P. S. the report Exh. P. A/1 was incorporated In the F. I. R. Exh. P. A., Bakht Amin had died immediately after the receipt of his injury. The S. I. prepared his injury statement Exh. P. J/1 and inquest report Exh. P. J. and despatched the dead body to the hospital, at Saidu Sharif. The S. I. came to Civil Hospital. He found Fida Hussain injured in senses and after obtaining a certificate from P. W. Dr. Mahmud Khan, recorded the dying declaration Exh. P. B. of Fida Hussain. The S. I. also prepared the injury sheet Exh. P. J/2 of Fida Hussain. The S. I. came to the spot from the hospital. He took into possession the shirt Exh. P. 1 and shalwar Exh. P. 2 of P. W. Gut Yar which had cut marks, vide memo. Exh. P. E. in the presence of P. W. Muhammad Sharif Jamadar. The S. I. then prepared the site plan Exh. P. C. at the instance of P. W. Zubair and Gut Yar. Gut Naushad appellant had gone to the Police Station the same day where he was arrested. Khalid was also sent for to the P. S. and arrested.

3. Dr. Mahmud Khan examined the injuries of Fida Hussain on 9-8-1971 at 3-30 p. m. and found the following: (1) Stab wound left lumbar region 6" long, skin muscle and petitoneum cut. The whole of the small intestine protruding through the wound. (2) Stab wound on front right forearm one Inch long and " deep muscle cut. (3) Stab wound on back of forearm half inch long, operation. Descending colon completely cut, peritoneal cavity full of blood. The injury was dangerous to life. The injuries were within duration of 2 to 4 hours. Fida Hussain died in the hospital at 9-45 p.m. on 12-8-1971. The doctor, it appears, did not perform the post-mortem examination. The doctor opined that injury No. 1 on Fida Hussain was sufficient in the ordinary course of nature to cause death.

4. Dr. Muhammad Rehman had examined the injuries of Bakht Amin on 9-8-1971 at 5-45 p. m. and found the following, as recorded in the medico-legal report Exh. P. M/2. (1) Stab wound left groin, 1 " x 1" x 2 ". (2) Contusion below left lower lid, 1" x 1/8". The injuries were caused by sharp weapon and femoral artery alongwith femoral left side had been injured. The probable cause of death was haemorrhage and shock due to injury to femoral vessels. This doctor was not available at the trial. Dr. Mahmud Khan identified the handwriting of Dr. Muhammad Rehman on the medico-legal report Exh. P. M/2. No post-mortem examination on the dead body of Bakht Amin was informed. Dr. Muhammad Rehman opined that injury No. 1 on the person of Bakht Amin was sufficient in the ordinary course of nature to cause death. Dr. Mahmud Khan also examined the injury of P. W. Zubair on 9-8-1971 at 4-45 p. m. and found the following : One wound on the right thumb 1 " long and " deep caused with sharp weapon and simple in nature.

5. Dr. Pir Muhammad examined the injuries on the person of Gal Naushad accused-appellant on 10-8-1971 and found the following: (1) Small scratches over left hand (left thumb to left index and ring fingers). It was simple wound and appears to be inflicted by nails during struggle. (2) Two scratches over right hand (little finger and ring finger). It was simple and appears to be inflicted by nails. (3) Two abrasions over right iliac crest over the back. They were one inch into half inch in diameter. It was simple injury. (4) Minor nails scratches over forehead. (5) Abrasions one about 1" x " and the other " x " over the left knee. The doctor opined that the scratches on the back of the fingers were irregular and could be inflicted by nails. He also opined that injury No. 3 was possible with knife and injury No. 5 could be caused by fall on the ground. He further stated that injuries noted as wounds Nos. 3 and 5 could not be the result of a direct blow by blunt weapon.

6. At the trial Gul Naushad appellant had denied the two charges of murder. However, he admitted that he is a tenant of his co-accused Khalid and that he had given a chase to some stranger who had come to his house. Explaining the Injuries on his person he stated that he sustained the injuries during his scuffle with the stranger. He further stated: "I do'nt know why because I had not previous enmity with them. I was taking my lunch an unidentified stranger knocked at my door. He was drunk and intoxicated. He stopped inside my house addressing me he said "Zubair bring out your wife". I felt and got up telling him I am not Zubair and told him that Zubair's house was on the other side and that he had disgraced me. He again naming Shinogai commanded me to bring her out. I refused giving him the same reply that it was not Shenogai's house. That man took out a knife. He wanted to inflict a blow in the courtyard of my house. I struggled with him and relieved myself and pushed him out of my house and closed my door. I then went to the police station and made a report of the said incident to the S. H. O. P. W. Muhammad Rafiq ; while I was sitting there with the S. H. O. P. W. Zubair came telling the S. H. O. that men from his side had been murdered, Zubair charged the unidentified stranger for the murder of his men before him the S. H. O. however arrested me in spite of my protest. Zubair before S. H. V. supported my version. I do not know anything more about this case." He produced no evidence in defence.

6. The prosecution case is supported by the dying declara tion of Fida Hussain deceased. This dying declaration was recorded in the hospital at 4-30 p. m. on 9-8-1971 viz. the day of occurrence. In this dying declaration he charged Gul Naushad appellant for inflicting him knife injuries in the presence of Zubair and his servant. This dying declaration was recorded by P. W. Muhammad Rafiq S. H. O. while the deponent was in perfect senses as certified by Dr. Mahmud Khan. The dying declaration appears to be true and genuine and could form the basis of conviction of the appellant for the murder of Fida Hussain deceased. The prosecution case is also supported by the ocular testi mony of P. Ws. Zubair and Gal Yar both of whom are natural witnesses of the occurrence. Zubair had received an injury on his right thumb while snatching the knife from the appellant, Gal Yar in his attempt to apprehend the appellant was also given a blow with the knife but he escaped injury as his shirt Exh. P. 1 and shalwar Exh. P. 2 were cut. The two disinterested ocular witnesses have charged the appellant for the murder of Bakht Amin and Fida Hussain. In short the prosecution has proved both the charges of murder of Bakht Amin and Fida Hussain against the appellant. The learned Session Judge appears to have convicted Gal Naushad appellant under section 302, P. P. C. (two counts) for the double murder of Fida Hussain and Bakht Amin but instead of a separate sentence for each of the offence of murder has passed a consolidated and composite sentence of transporta tion for life for both the offences instead of passing separate sentences for convicting the appellant on the two charges. The High Court Rules and Orders Vol. 3, Chapter 19-A, para. 5 gives the following direction : "When a person is convicted of more than one offence, the Court should be careful to pass separate sentence for each offence, so that if the conviction is set aside on appeal with respect to one of the offences, there should be no room for doubt as to the sentences passed with respect to the rest." Section 35, Cr. P. C. provides that when a person is convict ed at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Pakistan Penal Code sentence him, for such offences, to the several punishments prescribed therefor which such Court is competent to inflict ; such punishments, when consisting of imprisonment or transporta tion to commence the one after the expiration of the other B in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. Again section 537, Cr. P. C. provides that no finding, sentence or order passed by g Court of competent jurisdiction shall be reversed or altered for any error, omission or irregularity unless it occassions failure of justice. The appellant had a fair trial and he had the knowledge that he was being tried for double murder of Bakht Amin and Fida Hussain. In our view, the awarding of a consolidated sentence of transporation for life has not prejudiced the accused at the trial nor has in fact occasioned failure of justice. The passing of consolidated sentence of transportation for life could, therefore, be treated as an irregularity. In Zamir Hassain and others v. The Crown (P L D 1949 Lah. 179), it is held: "The failure of the trial Court to specify the sentences under each count may, however, be treated as an irregularity and the sentence passed may be treated as a concurrent sentence under both the sections." We, therefore, consider the consolidated sentence of transporta tion for life awarded to the appellant for two counts of murder of Fida Hussain and Bakht Amin as concurrent sentences for transportation for life on both the counts. The law requires that a charge should be framed separately for each offence even if the offences are tried at one trial. See section 221, Cr. P. C. In the present case the learned Sessions Judge, as mentioned above, has charged the appellant at the commencement of the trial under section 302, P. P. C. for the murders of Fida Hussain and Bakht Amin. It was incumbent e upon the trial Judge to frame a charge with two heads against the appellant for each of the murder so as to give clear notice to the accused under trial of the offences for which he is tried even though any error, omission or irregularity in the charge will be curable under section 537, Cr. P. C. if it occasions no failure of justice. In the result, the conviction of the appellant and the sentences awarded to him do not merit any interference. The appeal is, therefore, dismissed. A copy of the judgment should be sent to Mr. Muhammad Humayun Khan, Sessions Judge, Swat for future guidance. S. A. H. Appeal dismissed.