P L D 1960 (W (PLP)

ABDUL AZIZ KHAN, J.‑

Muhammad Afzal was tried by the learned Sessions Judge, Lahore, under section 307 of the Pakistan Penal Code for the attempted murder of Major S. A. Hamid, Assistant Personnel Officer, Loco Workshop, Lahore, and under section 302 of the Pakistan Penal Code for the murder of Abdul Ghani, Assistant Foreman. Loco Workshop, on the 12th of April 1958, at 12‑30 p.m. at the Garhi Shahu Railway Over bridge. Agreeing with the unanimous opinion of the assessors, the learned Sessions Judge convicted him on both the charges, and sentenced him to seven years' rigorous imprisonment on the former charge and to death on the latter. The sentence of imprisonment is to take effect if the death sentence is not confirmed by this Court. The condemned person has appealed to this Court against his convictions and sentences. The case is also before us under section 374 of the Code of Criminal Procedure. This judgment will dispose of the appeal as well as the reference for confirma tion of the death sentence.

2. Briefly stated the prosecution case is that the appellant was employed as a coolie in the Wheel and Heavy Machine Shop Western Railway, his employment ticket being Abdul Ghani deceased, who was the Assistant Foreman, was not satisfied with the appellant's work and conduct A few days before the occurrence under consideration, Abdul Ghani deceased discussed with Mr. Malik Bakhsh, Foreman Loco Shop, (P. W. 8), and Mr. A. M. Rathur, Assistant Works Manager, the desirability of transferring the appellant to some other workshop. As a result of this discussion. the appellant was transferred from the Wheel and Heavy Machine Shop to the Foundry Shop by order Exh. P. C. dated the 12th of April 1958, which bears the signature of the deceased as well as that of the appellant. It is alleged that the work in the Foundry Workshop is more arduous than the work in the Wheel Shop and, therefore the appellant resented his transfer, and this resentment is alleged to have resulted in the murder under consideration.

3. On the 12th of April 1958, at 12‑15 p.m., while Abdul Ghani deceased was returning from the workshop, Muhammad Afzal appellant beat him with fist on the Garhi Shahu Over bridge. The deceased sat down on the receipt of the fist blows, Major S. A. Hamid Assistant Personnel Officer Loco Workshop, (P. W. 8), who was proceeding to his house on his motor‑cycle, saw the appellant giving fist blows to the deceased, who was sitting on the ground. Major Hamid knew Abdul Ghani deceased, who was an Assistant Foreman in his workshop. Major Hamid stopped his Motor‑cycle and asked the appellant to desist from beating Abdul Ghani. Thereupon, the appellant took out a knife and rushed towards Major Hamid saying that he would first deal with him (Major Hamid). Major Hamid threw his motor‑cycle towards the appellant, ran down the bridge, and took shelter behind a tonga. The appellant then returned to the place where Abdul Ghani was sitting on the ground, and gave him knife blows. Muhammad Rafiq (P. W. 3), Muhammad Hanif (P. W. 5), Muhammad Ali (P. W. 6) and Nur Elahi (P. W.7) witnessed the occurrence. Major Hamid asked the persons who had assembled there to capture the appellant, who was running away after causing injuries to Abdul Ghani, but the appellant succeeded in making good his escape. Major Hamid stopped a car passing over the bridge, put Abdul Ghani therein, and asked Muhammad Rafiq to accompany Abdul Ghani to the Cairns Railway Hospital, and himself followed them on his motor‑cycle. The doctor in charge of the railway hospital rendered first aid to the injured person, but directed that Abdul Ghani should at once be removed to the Mayo Hospital. Accordingly Abdul Ghani was removed to the Mayo Hospital in the Railway Hospital's ambulance. Muhammad Rafiq P. W., accompanied him.

4. Major Hamid P. W., telephoned to the Railway Police Station from the Cairns Hospital. His message Exh. P. O./1 was taken down in the roznamcha by H. C. Sardar Khan. Its English translation is as follows :‑ "Receipt of a telephonic message from the Cairns Hospital on 12‑4‑1958, at 1‑40 p.m. Abdul Ghani Foreman Railway who had been stabbed by a person on the Shalimar Bridge was removed to the Cairns Hospital. As his condition was serious, he has been sent to the Mayo Hospital. Some police officer should be sent for necessary action".

5. Sub‑Inspector Siraj‑ul‑Haq, S. H. O., Railway Police Station (P. W. 9), who had gone out in the course of his duties, returned to the police station at 4‑6 p.m. On learning of the telephonic message from the Cairns Hospital, he went to the Mayo Hospital. After satisfying himself that Abdul Ghani was in a fit condition to make a statement, he recorded his statement Exh. P. E. at 5‑40 p.m. It would be advantageous to give its English version :‑ "Today, Afzal Collie has caused injuries to me with a knife on the Shalimar Garhi Shahu Overbridge as I had got him transferred this morning to another place. My condition at the present moment is very bad. I shall make a detailed statement later on." Ahmad Din (P. W. 10) and Muhammad Ashraf son of Abdul Ghani deceased, attested the aforesaid statement Exh. P. E. As this statement disclosed that the offence had been committed in the jurisdiction of Moghalpura Police Station, Sub‑Inspector Siraj‑ul‑Haq forwarded Exh, P. E., to the S. H. O. Moghalpura.

6. Foot Constable Muhammad Ayub (P. W. 17), who was on duty. at the Casualty Ward of the Mayo Hospital, tried to contact the Moghalpura Police Station on the arrival of Abdul Ghani in the Mayo Hospital but failed to do so as the telephone line was out of order. He therefore, contacted F. C: Abdur Rahman (P. W. 15) at Police Post Dharampura and asked him to inform the S. H. O. Moghalpura Police Station that Abdul Ghani who had received injuries, had been admitted to the Mayo Hospital. F. C. Abdur Rahman P. W. made an entry in the roznamcha and sent a copy of it to Moghalpura Police Station. On the receipt of this information, S.

1. Sana Ullah (P. W. 16) went to the spot and recorded Muhammad Rafiq's statement Exh. P. A. and registered a formal first information report Exh. P. A/1 on the basis of this statement. The English version of Exh. P. A/ 1 is as follows :‑ "Today at 12‑15 p.m. I was going to take over my duty. When I was on the railway over bridge near the engine shed, I saw Muhammad Afzal Collie of Loco Shop beating Abdul Ghani Foreman with fists, and the latter had become nervous. Major Abdul Hamid, who was there, was rescuing Abdul Ghani. On our attempt to rescue Abdul Ghani, Afzal took out a knife and attacked Major Abdul Hamid, who took shelter behind a Tonga. Then Afzal gave two or three knife blows to Abdul Ghani. We raised an alarm. Muhammad Ali son of Ch. Rahim Bakhsh Rajput and Mistri Nur Elahi came there and saw the occurrence. Muhammad Afzal ran towards the signal shop waiving his knife. Abdul Ghani Foreman has been admitted to the Mayo Hospital. Necessary action be taken. Abdul Ghani is injured on his back and is unconscious."

7. On the 18th of April 1958, S.

1. Sana Ullah P. W. recorded Abdul Ghani's statement Exh. P. T. This statement is more detailed than the statement Exh. P. E.

8. Doctor Muhammad Usman (P. W. 1) who examined Abdul Ghani on his admission to the hospital, observed two incised wounds and a contusion on the bridge of Abdul Ghani's nose. The bone underneath had been fractured. Abdul Ghani died in the hospital on the 19th of April 1958, at 11‑30 p.m. Dr. Faiz Mahmood (P. W. 2), who conducted the post‑mortem examination on the 20th of April 1958, at 10‑45 a.m., observed the following injuries on the dead body of Abdul Ghani :‑ (1) Stitched wound, 4 " long, on the right side of the chest, situated obliquely, on the posterior axillary fold over the 8th rib. (2) Stitched wound almost healed with one stitch situated 2" below and parallel to injury No. 1, " long. (3) Wedge‑shaped wound, 3/5"x1/5"x 4 ", the width 1/5" being the widest part of the wound, situated 2 " above and behind the hind end of injury No.

1. The wound had almost healed. On entering the chest cavity through the 9th inter‑costal space and grazing the 8th rib, pleura at this hide was found stitched. The wound had then penetrated lower lobe of right lung for 1 ". Right lung was collapsed, pleural cavity contained pus and organizing blood clot. Lower lobe of right lung was consolidated with areas of suppuration in it. (4) Patch of contusion, 5" x 4 ", on the right side of the abdomen above iliac crest. (5) Almost healed scabbed scratch, 1 "x 1/10'', situated on the left buttock. (6) Almost healed area, 1/8" x 1/10", on the medial side of right nostril, situated on the fading contusion, 2" x 1 ", on bridge of nose. Nasal bone underneath was found fractured. Right side of heart contained blood and clot. Liver, splean and kidneys were congested. Brain was congested. Stomach con tained whitish fluid 8 ozs. Death, in the opinion of the doctor, was due to injury No. 3 which had been caused with a sharp‑pointed weapon. The doctor was further of the opinion that injuries Nos. 4, 5 and 6 had been caused with a blunt weapon.

9. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He stated at the trial :‑ "I know nothing about the incident. I had come away from work as usual on the 12th April and on the 13th I heard that Abdul Ghani had been attacked. I kept on attending the workshop until I was called to the police station and arrested on 19th April. There is another Cooly named Muhammad Afzal in the workshop and his number is 4155 while my number is 4156. He works in the Wheal Shop and lives in Khoi Miran. The deceased may have named that Muhammad Afzal and I have been caught by mistake. This is wrong identification." The appellant examined Mr. Aziz Ahmad, Labour Warden, Loco Workshop, Moghalpura, in his defence, who gave particulars of the other "Afzal" whose ticket No. is 4155. This Afzal was origi nally employed in the Wheel Shop but was transferred to the Boiler Shop on the 8th of April 1958. In cross‑examination Mr. Aziz Ahmad stated that the other "Afzal" referred to by him had gone to the Boiler Shop on the 8th of April 1958 on promo tion. He further stated that the work in the Foundry Shop is more arduous than the work in the Wheel Shop.

10. It would be convenient to consider first the propriety of the appellant's conviction under section 307, P.P.C.‑ Major Hamid, who is said to have been attacked, described the attack on his person in the following words:‑-- "On the 12th April 1958, at about 12‑15 p.m., I was coming from my office to my house on a motor‑cycle. When I started climbing the Bridge, I saw that one man was sitting on the ground and another man was giving him fist blows. When I approached near them I stopped and before my very eyes the assailant gave severe fist blows on the face of the deceased Abdul Ghani. I know the deceased previously as he was a fore man in my workshop but I did (sic) know the accused Afzal before the occurrence. The man who was giving fist blows was the present accused, Muhammad Afzal. When I intervened and asked him to stop beating Abdul Ghani deceased, the accused pulled out a knife and rushed towards me saying that he will first deal with me. I had not yet put the motor‑cycle on its stand, and I just threw it there towards the accused and ran down the bridge. At that time a Tonga was coming up and I took shelter behind it. The accused then returned towards the deceased." The other eye‑witnesses of the occurrence substantially supported the above statement. Major Hamid is a responsible officer and we see no reason to disbelieve him. Muhammad Rafiq (P. W. 3), Muhammad Ali (P. W. 6) and Nur Elahi (P. W. 7), as we will presently show, are also reliable and trustworthy witnesses. We have, therefore, no hesitation in accepting the prosecution version regarding the attack on Major Hamid. Even if this version is accepted, it does not make out a case under section 307, P. P. C. According to Major Hamid the accused pulled out a knife and rushed towards him saying that he would first deal with him (Major Hamid). Thereupon, Major Hamid threw his motor cycle, ran down the bridge, and took shelter behind a Tonga. On seeing this the accused returned towards Abdul Ghani deceas ed. The statement of Major Hamid merely shows that the appellant took out a knife and threatened him. According to his statement, the appellant gave up the pursuit as soon as Major Hamid took shelter behind a Tonga. There is nothing on the record to show that the appellant ever reached within striking distance of Major Hamid. The prosecution evidence at best discloses a preparation on the part of the appellant to attack Major Hamid and nothing further. In the circumstances, his conviction and sentence under section 307, P. P. C. cannot be maintained. We, therefore, accept his appeal so far as it relates to his convic tion and sentence under section 307, of the Pakistan Penal Code.

11. We now proceed to consider the prosecution case relat ing to the appellant's conviction and sentence under section 302 of the Pakistan Penal Code. It will be seen from the statement of facts given above, that the prosecution case rests on :‑-- (i) The evidence of Mr. Malik Bakhsh (P. W. 8) regarding motive ; (ii) the evidence of Muhammad Rafiq (P. W. 3), Major Hamid (P. W. 4), Muhammad Hanif (P. W. 5), Muhammad Ali (P. W. 6) and Nur Elahi (P. W. 7), the eyewitnesses of the occurrence ; and (iii) the dying declaration.

12. Mr. Malik Bakhsh (P. W. 8), Forman Loco shop, stated that he had been working in the Wheel and Heavy Machine Shop since the 21st of February 1958. He further stated that Afzal appellant was working as a collie under him and that his employment number was 4156. According to the witness, the appellant was transferred to the Foundry Shop on the 12th of April 1958 at the instance of Abdul Ghani deceased, Assistant Foreman, vide order Exh. P. C. The order Exh. P. C. clearly states that the appellant was relieved of his duties and directed to report to the Foundry Shop. The name and parentage of the appellant is clearly mentioned in Exh. P. C. and it is signed by the deceased and the appellant. Mr. Malik Bakhsh identified the deceased's signature on Exh. P. C. He could not, however, identify the appellant's signature, but stated that it is the practice of the Department that a person who is transferred to another workshop has to sign a copy of the order which is retained in the office. The appellant denied his signature on Exh. P. C. He, however, led no evidence to prove that it had been signed by the other Afzal, whose ticket number is 4155. It is in evidence that Afzal, whose ticket number is 4155, had been transferred on promotion to the Boiler Shop on the 8th of April 1958. As such he had no motive to attack the deceased. On the contrary, the appellant had been transferred to the Foundry Shop where the work is more arduous and, therefore, had a grievance against the deceased.

13. The learned counsel for the appellant strenuously urged that Major Hamid's telephonic message Exh. P. O./1 to the Railway Police Station, Lahore, is the first information report in the case. According to the learned counsel, the alleged eye witnesses of the occurrence did not know the name of Abdul Ghani's assailant till the telephonic message Exh. P. O./ 1 was seat. This point was argued before the learned Sessions Judge and the learned Public Prosecutor conceded that the telephonic message Exh. P. O./1 is the first information report in the case. We are of the opinion that the learned Public Prosecutor wrongly conceded B that Exh. P. O./1 is the first information report in the case. A wrong concession by the Public Prosecutor is not binding on the State. Public Prosecutor v. Chitikina Subbanna and others (A I R 1947 Mad. 239) supports this view.

14. Exhibit P. O./1 is an unsigned telephonic message. It is, therefore, not a first information report within the meaning of section 154 of the Code of Criminal Procedure which reads as follows:‑ "Every information relating to the commission of a cogniz able offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direc tion, and be read over to the informant; and every such informa tion, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Local Government may prescribe in this behalf." Only information complying with the provisions of this section constitutes what is known as the first information report. The entry in the roznamcha Exh. P. O./1 does not conform to the pro visions of this section. Head Constable Sardar Khan, who obtain ed the information, was not in charge of the police station. The record of the information in the roznamcha does not show that it was read over to Major Hamid. It was not signed by Majo Hamid. Moreover, it was not entered in the book prescribed by the Provincial Government for the purpose of recording first information reports. In Ahman v. Emperor (A I R 1938 Lah. 787) it was held that an entry made by a Sub‑Inspector in the daily diary of the police station is not a first information report. The question whether an unsign ed telegram and telephonic message are first information reports, within the meaning of section 154 of the Code of Criminal Proce dure, was considered by a Division Bench of the Lahore High Court in Crown v. Faiz Muhammad (P L D 1952 Lah. 215), and their Lordships observed :‑ "Unsigned telegrams and telephonic messages are not Firs Information Reports within the meaning of section 154, Criminal Procedure Code, and if after the receipt of a telegram or telephonic message the police proceeded to the spot and take down the information from the complainant or the informant and get it signed by him, the signed statement would be the First Information Report and not the telegram or the telephonic message". In the present case, Sub‑Inspector Siraj‑ul‑Haq went to the Mayo Hospital and recorded Abdul Ghani's statement Exh. P. E. which, in our opinion, is the first information report in the case.

15. Out of the eyewitnesses, Muhammad Rafiq (P. W. 3), Muhammad Ali (P. W. 6) and Nur Elahi (P. W. 7) knew the appellant. Each one of them stated that he had seen the appellant causing injuries to Abdul Ghani deceased on the over bridge. Muhammad Rafiq P. W., who is a Senior Chargeman in the Carriage and Wagon Shop, knew the deceased as well as the appellant prior to the occurrence. His presence at the relevant time cannot be denied for the following reasons. Major Hamid, who is a responsible officer, has stated that Muhammad Rafiq P. W. who 'was present at the spot had seen the occurrence and that he sent Muhammad Rafiq along with the injured person to the Cairns Hospital in a car. As already stated, the deceased was removed to the Mayo Hospital in the railway ambulance. Dr. Muhammad Usman P. W. examined Abdul Ghani on his arrival at the Mayo Hospital at 1‑15 P.M. Dr. Usman prepared the injury statement Exh. P. G. wherein Muhammad Rafiq's name was mentioned. The fact that Muhammad Rafiq's name was mentioned in Exh. P. G. supports the prosecution version that he accompanied Abdul Ghani to Cairns Hospital from the spot and then from the Cairns Hospital to the Mayo Hospital. Muhammad Rafiq P. W. is a disinterested and responsible officer and we see no reason to disbelieve him. Relying on the fact that Muhammad Rafiq P. W belongs to the biradri of the deceased, it was contended that his evidence should not be believed. The mere fact that he belongs to the biradri of the deceased is no ground to discredit the statement of Muhammad Rafiq P. W., D who is a responsible officer and would not falsely swear away the life of an innocent person.

16. Muhammad Rafiq P. W. stated at the trial that he stayed in the hospital till 5‑30 p.m. and then accompanied the Sub‑Inspector of the Railway Police to the spot. Exhibit P. S./1 is the report entered by S. I. Siraj‑ul‑Haq (P. W. 9) in the daily diary regarding his return from the Mayo Hospital at 8‑37 p.m. This report does not show that Siraj‑ul‑Haq Sub‑Inspector visited the spot in the company of Muhammad Rafiq P. W. Sub Inspector Sana Ullah stated that he met Muhammad Rafiq P. W. at the spot at 5‑45 p m. and recorded his statement Exh. P. A. On these facts, the learned counsel for the appellant submitted that Muhammad Rafiq P. W., had in fact never gone to the Mayo Hospital. According to him he had casually gone to the spot where he met S. I. Sana Ullah who recorded his statement. We have already given our reasons for holding that Muhammad Rafiq P. W. was at the spot and that he did see the occurrence. The discrepancy relied upon by the learned counsel is not of such a nature as would justify discrediting Muhammad Rafiq P. W.

17. Muhammad Ali (P. W. 6) and Nur Elabi (P. W. 7) have their shops in the vicinity of the scene of occurrence. Each one of them who knew the appellant prior to the murder graphically described the occurrence from beginning to end. Nur Elahi P. W. stated that he knew the appellant as he lived near his residence in Kucha Muhammadi. Muhammad Ali P. W. claimed to know the appellant as he has his shop near the workshop where the appellant worked. The evidence of Muhammad Ali and Nur Elabi P. Ws. was criticized on the ground that they had been procured by the S. H. O. Moghalpura. It was further argued that Muhammad Ali is a retired Head Constable of Police and has been known to S.

1. Sana Ullah for a long time and that he has made a false statement at the instance of S.

1. Sana Ullah. The learned Session Judge, who had the advantage of watching the demeanour of the witnesses in the witness‑box, observed :‑-- "He (Muhammad Ali) appeared to me to be a respectable type and he has categorically denied that he is giving false evidence because of the local S. H. O. or that he did not know the accused prior to the incident. The same sort of criticism was put forward against Nur Elahi (P. W. 7). He has also denied the suggestion that he is particularly friendly with the police officer. He has also stated that he knew the accused. The learned counsel pointed out that the witness was not in a position to give the names of the brothers or the father of the accused. It seems to me that this criticism has no force. The two witnesses, Muhammad Ali and Nur Elahi, are running cycle shops near the railway workshops and are repairing and hiring cycles and thus they have been coming into contact with the workers of the workshop who are their customers. It is not necessary for these witnesses to know the parentage and other particulars of the railway workers whom they come across at their shops. The shops of these witnesses are admittedly very close to the scene of occurrence and there is nothing improbable or unnatural about their having witnessed the occurrence. I consider, therefore, that on the evidence of these two witnesses also the identity of the present accused is satisfactorily established."

18. Muhammad Hanif (P. W. 5) also witnessed the occurrence. He stated at the trial that the assailant of Abdul Ghani had muted his face. The learned Public Prosecutor cross-examined Muhammad Hanif P. W. after obtaining the permission of the learned Sessions Judge. Muhammad Hanif P. W. was duly confronted with his statement before the Committing Magistrate wherein he had specifically mentioned the name of the appellant as the assailant of Abdul Ghani. Relying on Muhammad Hanif's statement, the learned counsel for the appellant argued that it is a case of mistaken identity. None of the eye‑witnesses, including Major Hamid, has stated that the appellant had muffled his face. We are, therefore, of the opinion that Muhammad Hanif P. W. made a false statement to help the appellant. In any case, we are not prepared to rely on his statement on this point in preference to the statements of other disinterested and responsible persons, like Major Hamid and Muhammad Rafiq P. Ws.

19. Major Hamid did not know the appellant prior to the occurrence. He, however, stated at the trial that the accused present in the dock was the person who attacked him first and then attacked Abdul Ghani. If it were Major Hamid's evidence alone, there might have been some doubt about the identity of the appellant. The appellant was, however, well known to Muhammad Rafiq, Muhammad Ali and Nur Elahi P. Ws. Their evidence, coupled with the evidence of Major Hamid P. W. leaves no room for doubt that it was the appellant who caused injuries to Abdul Ghani deceased as alleged by the prosecution.

20. The next item of evidence relied upon by the prosecu tion is the dying declarations Exhs. P. E. and P. T. According to Exh. P. E., the deceased stated that he had been attacked by Afzal Coolie, whom the deceased had transferred in the morning. This too leaves no room for doubt about that the appellant caused the injuries to Abdul Ghani. We have already stated that the appellant was the only "AFZAL" who had been transferred to E the Foundry Shop on the 12th of April 1958. The statement Exh. P. T. is a detailed statement and categorically mentions the names of Major Hamid and Muhammad Rafiq as witnesses of the occurrence. We have carefully gone through the evidence on the record with the help of the learned counsel for the appellant. In our opinion, the evidence of the eye‑witnesses and the dying declarations referred to above establish the prosecution case against the appellant beyond any doubt. We, therefore, dismiss his appeal so far as it relates to his conviction and sentence under section 302 of the Pakistan Penal Code. The sentence of death imposed on the appellant by the learned Sessions Judge is confirmed. A. H. Order accordingly.