P L D 1957 (W (PLP)

MUHAMMAD BACHAL, J.-The appellant Khursheed Ahmad son of Muhammad Sharif, who was tried along with his elder brother Nazeer Ahmad who has been acquitted, has been convicted by the learned Additional Sessions Judge Karachi under section 30?, P. P. C. and sentenced to death. He has appealed and the case is also before us for confirma tion of the sentence of death. The incident is alleged to have taken place on the 27th October 1953 at, about 8 p.m. at Darya Chal Usmanabad where the deceased Abdul Waheed and his brother Unis resided. Abdul Waheed, his brother Unis and others attended a religious colloquium convened about 163 ft. away from their house. The accused whose shop is about 56 ft. away from that place also attended. A quarrell ensued there. Muhammad Unis states that he saw the accused coming out from his house and taking out a knife from his trousers. He stabbed his brother on the left side 2 or 3 times. He went forward to save his brother and in the attempt to rescue him he got a scratch on his finger. The accused went away after stabbing. Noor Muhammad whose house is opposite their house and Kareemullah whose house is to the south of Noor Muhammad's house took Abdul Waheed to the hospital where he went half an hour and stayed till midnight. The medical evidence shows that Muhammad Unis had an injury on the small finger of the right hand caused by a knife. Noor Muhammad states that the religious colloquium was going on for three days. On the third day at 8 p.m. when he attended, the accused and Abdul Waheed grappled and the Mohalla people set them apart. After 2 or 3 minutes the accused came and stabbed Waheed 3 times and ran away. He and Unis took Abdul Waheed to the hospital. Kareemullah came there half an hour after. Abdul Hameed states that he saw the accused standing with a blood stained knife. Kareemullah whose evidence was admitted under section 33 of the Evidence Act states that at about 8 p.m. he heard a voice in his house and went to the scene. He saw the accused grappling with Abdul Waheed. He saw the accused giving two blows to Abdul Waheed who fell down on the Takht where they were preaching for the last three days. He took the injured to the hospital. The accused did not cross-examine this witness. Umar Khan mashir states that he saw a few spots of blood at the Takht. A telephonic massage was received from the compounder of the Civil Hospital at 8-50 p.m. at police station Kalakot that Abdul Waheed had been stabbed with a knife and was admitted into the Civil hospital. Muhammad Shafi Head Con stable arrived at the hospital at 9 p.m. and recorded the dying declaration of Abdul Waheed as under after obtaining permission from the doctor on duty: "I live in Daryai Chal. The people of the Mohalla collected subscription and have been holding 'Waz' in the Mohallah at night since three days. Today i.e. 27th October 1953, at about 8 p.m. poems were being recited at the place of the Waz and a large number of persons were standing and sitting. I too was standing there and listen ing the poems and then a person asked me to sit down. I said that I would sit down when the Waz would start. Thereupon that man gave me fist blows on my mouth and grappled with me to beat me. Meanwhile his elder brother arrived and he caught hold of me and the person, who was grappling with me to beat me from before opened a knife and stabbed me several times on my left koch side and I got injured and started shouting and fell on the ground and the accused persons ran away. I know both the accused by face. Both of them are brothers. They do cycle business and live in Qadir Bhai compound. In the meantime Karimullah and Abdul Hameed arrived and they have brought me to hospital by carrying me. This incident was witnessed by Karimullah, Younus and many others." Thumb-impression of Abdul Waheed. He sent this to the Police station through Tufail Ahmad Constable. Nasib Ahmad A. S. I. registered the report on the basis of the dying declaration at 10-15 p.m. for the offence under section 324/34, P. P. C. Dr. Fasahatali received the injured at 8-30 p.m. and advised Bashir Ahmad in charge Kalakote Police Station to get the dying declaration recorded. Bashir Ahmad went to call A. C. M. Bakar Zaidi. But before his arrival at 10-30 p.m. in the hospital, the injured's dying declaration was recorded by Shafi Muhammad and the injured was removed to the operation theatre. Dr. Fasahatali states that he found the following injuries: (1) Incised and punctured wound on the abdomen left side in axillary line just below the costal margin omentum was protruding out the dimensions were 1" x " x intra abdomen. (2) Incised and puactured wound on the left forearm flexor surface in the middle oblique in direction 3" x " x ". (3) Lacerated wound on the lower lip at the left angle of mouth " x 1/6" x 1/8". (4) Abrasion below the right eye 1/6" x 1/8". According to him these were caused by a sharp and pointed weapon. Abdul Waheed died at 1-15 a.m. due to loss of blood on account of injury to the abdomen which was sufficient to cause death. Bashir Ahmad arrested the accused at about 4 a.m. He secured blood-stained clothes of the accused. The Chemical Examiner found human blood-stains on these clothes. The medical evidence shows that the accused had an injury on the posterior part of the neck caused by some blunt weapon. The defence of the accused that while he was sleeping in his house, police woke him up at 2 or 3 a.m. and beat him on the back with a stick is falsified by the medical evidence that he had one injury on the neck caused by the deceased to save himself from the attack of the accused. The accused disowned the clothes. His defence was bare denial of the prosecution case. The learned judge accepted the dying declaration as true as it was corroborated by the occular evidence and the circumstantial evidence of blood-stained clothes of the accused and injury on Unis and the accused who gave false explanation for the injury on him. Dr. Fasahatali in his cross examination states that the deceased had some shock in the primary stage when it is not possible to give any statement. But we consider that his evidence in this respect cannot be accepted having regard to the fact that Bashir Ahmad went to bring the Magistrate for dying declaration recorded at the suggestion of the doctor. The accused was committed to the High Court Sessions on the 1st October 1954. He appeared before the Court on the 9th April 1956, when the case was adjourned. On the 20th April 1956, the President of Pakistan established the 1 Court of Session Karachi by his Order No. II of 1956. Section 7 of the Schedule provides as under: "Every proceeding pending immediately before the appointed day before the Bench of the High Court of West Pakistan at Karachi functioning as the Court of Session and exercising the powers and performing the duties of a Sessions Judge in the Sessions Division of Karachi shall be deemed to be transferred to the Court of Session of Karachi, and such Court shall proceed to try and determine or otherwise deal with such proceedings as if it had been instituted in such Court." After the case was reserved for judgment, Mr. Anis zousuf for the appellant contended that the trial of the accused by the Court of Session with the aid of assessors was illegal as the President's order depriving the accused of his sub-stantive right of trial by jury infringed Articles 4 and of the Constitution. He relied on The State v. Ex-Major P. K. Swamy and another (A I R 1953 Mad. 451) and Dhirendra Kumar v. Superintendent and Remembrancer of Legal Affairs to the Government of West Bengal (A I R 1954 S C 424), These cases are distinguish able. In the first case the original jurisdiction of the High Court was not abolished and there was no provision like section 7 of the Schedule as in this case. The learned judges observed: " It will be seen that the Act does not make provision for any cases which are pending before a Court other than that of a Magistrate, for example, a case pending before this Court. The legislature must be deemed to have been aware of cases pending before Courts other than Magistrates and yet it has refrained from making any provision for them. By necessary intendment it is reasonably plain that the trial of cases pending before Courts other than those pending before Magistrates is not affected." In the second case the learned Judges observed: "Though the trial by jury is undoubtedly one of the most valuable rights which the accused can have, it has not been guaranteed by the Constitution." We see no force in the contention raised. The accused can be deprived of the vested right by the Legislature. The President under Article 211 (2) (c) of the Constitution made a provision in the Order for cases pending before the High Court to be tried by the Sessions Court. Under section 268, Criminal P. C. all trials before Sessions Court shall be with the aid of assessors unless under section 269, Criminal P. C. they are directed to be tried by jury. The trial by jury is not a fundamental right guaranteed by the Constitution. The learned counsel for the appellant made another application, this time relying on the judgment of another Bench of this Court where it has been held that the President has no power under Article 211 (2) (b) to give retrospective effect to his order. This contention has also no force for in this case, the President has acted under Article 211 (2) (c) which puts no restriction on his power to give retrospective effect to his orders in respect of l jurisdiction of Courts. The conviction of the accused for the offence under section 302, P. P. C. must be maintained. The accused is a student aged about 18 years who acted at the instance of another person. We accordingly sentence him to transporta tion for life under section 302, P. P. C. A. H Sentence reduced.