P L D 1961 (W (PLP)

H. T. RAYMOND, J.‑

The appellant Hakim Khan son of Said Ali Khan was tried and convicted by the Sessions Judge, Derajat, Khan Muhammad Shafiq Khan, of offences under section 302, P. P. C. and section 19, Arms Act. Under section 302, P. P. C. ha has been sentenced to death and under section 19, Arms Act he has been sentenced to suffer R. I. for six months. The present appeal is by him from jail against these convictions and sentences. The case is also before us by way of reference under section 374, Cr. P. C. This judgment will dispose of both the appeal as well as the reference.

2. The facts giving rise to this case are that the appellant and the deceased Haji Zahuruddin both belong to village Ghazni Khel. Some two years before the day of the murder in this case, the appellant was proceeded against under section 40 of the Frontier Crimes Regulation, and was directed to furnish bonds of good‑character which he was unable to do, and consequently he was committed to prison for two years. He was released from prison about a month before the murder in this case, and after his release he was openly declaring that the deceased was an responsible for this incarceration of his, and t‑hat he would have his revenge from the deceased. On the day of the incident, namely, 6‑5‑1961, the deceased Zahuruddin accompanied by his first cousin Kiramatullah (P. W. 7), who lived near him, went out to the fields for answering the call of nature. On their return they were coming along a pathway, the deceased walking ahead of Kiramatuliah at a distance of some 83 feet. Aurangzeb Khan (P. W. 8), who is also a distant cousin of the deceased, was also returning from the field along the same path. He was at a distance of 'about 165 feet from the deceased. It is in evidence that along this pathway there is situated an uninhabited house of one Ali Jan, and as the deceased came in front of this house, the appellant Hakim Khan armed with a country‑made rifle (Exh. P. 1) and carrying a bandolier of cartridge (Exh. P.'2) emerged from this house. The appellant greeted the deceased and even shook hands with him. The deceased then continued on his way towards his house when the appellant fired at him from behind as a result of which the deceased took a few steps forward, but then being unable to continue any further he sat down on the pathway. The appellant after having shot at the deceased went towards the P. A. R. Post Ghazni Khel along with his rifle and bandolier of cartridges. Kiramatullah (P. W. 7)' and Aurangzeb (P. W. 8), who were at the‑, time on the same pathway, but behind the deceased, ran up towards him and gave him their support. Soon thereafter Nezam Khan (P. W.9); Whose house is situated on the same, path at a distance of about 36 paces from the scene, also rushed to the scene on hearing the shot, and found the deceased sitting there aided by P. Ws. Kiramatullah and Aufangzeb. He inquired of them as to who was responsible for Shooting at the deceased and all three of them gave him the name of the appellant as having shot at the deceased. Aurangzeb (P. W. 8) then went to his village and brought a cot on which they placed the deceased who then was seriously injured and carried him to the lorry‑stand situated on the Bannu‑Dera Ismail Khan Road, intending to take him to Bannu for medical treatment. After a while the private car of a contractor named Khan happened to pass by and on the request of Kiramatullah Khan, Mr. Khan, who happened himself to be in the car at that time, gave a lift to all of them including the injured Zahuruddin, to the Civil Hospital, Bannu. There the Civil Surgeon, Bannu, advised Kiramatullah (P. W. 7) to remain in the hospital as in his opinion the injured needed blood‑transfusion and Kiramatullah might be called upon to donate his own blood. A sample of the blood of the injured Zahuruddin was then drawn and sent through the hand of Kiramatullah to the Combined Military Hospital, Bannu, for the necessary test. At this hospital a sample of Kiramatullah's blood was also taken for comparison and it was only thereafter that Kirmatullah was able to go to the Police Station Bannu City, where he lodged his report which is Exh. P. B. in this case. The appellant on leaving the scene of offence went straight to the P. A. R. Post, Ghazni Khel, where he met S. I. Gul Aslam (P. W. 10) at 8‑15 a.m. and to whom he made a statement. S. I. Gul Aslam then placed him under arrest and secured from him his rifle (Exh. P. 1), his bandolier of cartridges (Ex. P. 2), and the 37 live cartridges contained therein (Ex. P. 3). He also entered a report ac serial No. 19 of the daily diary under which he took the signature of the appellant. He then communicated the contents of this repi6rt through his muharrir over the telephone to Police Station, Tajori for necessary action.

3. S. I. Muhammad Ali Khan (P. W. 15), who was then S. H. O., Police Station, Tajori, on receiving this report over the telephone, proceeded at once to Ghazni Khel, reaching there at 11‑15. the same day. There he met S.

1. Gul Aslam Khan (P W. 10) and got full particulars from hire. He proceeded to the spot where he found P. Ws. Aurangzeb and Sher Alain present. With the assistance of P. W. Aurangzeb he inspected the spot and prepared the site plan Ex. P. F. He secured blood stained earth from point `C' in the site plan, and observed that this place was in front of the uninhabited house of one Ali Jan. He also observed the shop of one Mosam some 30 paces away from point `C', and contiguous to this shop was the shop of Nezam Khan (P. W. 9). He also found an empty shell of a .303 rifle at point `L' on the site plan. This empty shall, he observed, smelt of fresh discharge of gun‑powder. He also noted in this site plan point `A' as being the place where the deceased was shot, point `B' as being the place from where the appellant shot at the deceased, point `D' as being the place where Kiramatullah (P. W. 7) was then standing, and point `E' as being the place where Aarangzeb (P. W. 8) was then standing. From point `F', which is at a distance of 42 feet from point `C' he recovered a metal cover of a bullet which he took into his possession. He then recorded the statement of Aurangzeb P. W. at about 2 p.m. and then proceeded to the ' P. A. R. Post, Ghazni Khel, from where he took possession of the rifle, the bandolier, the 37 . live cartridges, and also the 'appellant, who was handed over to him by S. I. Gul Asiam Khan. He chose five cartridges and having sealed them sent them with the empty shell for examination to the Arms Expert; whose report is inconclusive. He also took into his possession an arm‑permit (Ex. P. 8) which was produced before him by Akbar Khan the appellant's brother. He then packed in a parcel the bloodstained earth and the banyan of the deceased, submitted the same to the Chemical Examiner, and received his report to the Affect that both the earth and the banyan were stained with blood. He then examined P. Ws. Kiramatullah, Nezam Khan and some other witnesses; and after completing his investigation, submitted a complete challan to the Court of the Magistrate concerned.

4. The appellant in his statement denied every allegation put to him, including the statement made and signed by him at the P. A. R. Post, Ghazni Khel, the production of the rifle, bandolier and 37 live cartridges and his arrest by S. I. Gul Aslam Khan. He also denied that he was prosecuted under section 40 of the Frontier Crimes Regulation at the instance of Haji Zahuruddin deceased, and he stated that P. Ws. Kiramatullah, Aurangzeb, Nezam Khan and Gul Aslam Khan had deposed against him because they belong to the party of the deceased, two of them, Kiramatullah and Aurangzeb, being his cousins, and P. W. Nezam Khan being a tenant of the deceased. He further added that in 1956 he was tried for the murder of one Qasim Khan at the instance of the deceased, but was ultimately acquitted. On account of this acquitta1the deceased party apprehended danger from him and on the day of occurrence when the deceased was accidentally shot by his own servant, he and his party availed themselves of this opportunity to bring this false charge against him. He examined no defence witnesses.

5. Doctor Sabz Ali Shah, Medical Officer Civil Hospital, Bannu, first examined Haji Zahuruddin then injured, at 9‑10 a.m. on 6‑5‑1961 and found the following injuries on him :‑ (1) He was in a state of shock. (2) An entrance wound of firearm about '' x 1/3" on the left back mid region. The margins of the wound were inverted. (3) An exit wound of firearm on the front aspect of the left chest just above the left nipple. The margins of the wound were everted. The doctor states how the injured needed blood transfusion, how one of the relatives of the deceased, probably Kiramatullah, showed his willingness to give his blood for this transfusion. The doctor then took out 5 C. C. of blood from the deceased and gave the blood in a bottle to the relatives of the deceased, to take it to the Combined Military Hospital, Bannu, for the necessary test. They returned with the bottle of blood which was transfused into the patient, and a little later a second bottle of blood was also brought which was also injected into the patient. The doctor farther states how he advised the police, who were there present, to request a Magistrate to come and record the dying statement of the patient. This was done and a local Magistrate came to the hospital and recorded the statement of the injured Zahuruddin after the doctor had certified that he was in his senses and was able to give statement. This statement is Ex. P. E. on record of this case which bears the certificate in the hand writing of this doctor that the declarant was in his proper senses and was able to make a statement. After the Magistrate completed the recording of this statement he read it over to the declirant, naively, the injured Zahuruddin, who admitted that it was correct and affixed his thumb‑mark thereon. The patient expired at 7‑35 a.m. the next morning and the same doctor then per formed a post‑mortem examination on his dead body. On internal examination he found that the thorax walls, left pleura, left lung and both the lobes were punctured. The left lung had both the inlet and exit wounds on it. The left chest cavity was full of blood and the stomach was found empty. The Doctor was of the opinion that the deceased was about 38 years of age and that the cause of his death was shock and loss of blood due to his injuries.

6. At the hearing in the Sessions Court, the prosecution examined in all fifteen prosecution witnesses. P. W. Mr. Abdul Majid Khan, is the brother of the deceased, who testified to the motive for the commission of this offence by the appellant, as set out in para. 2 above. P. W. 2 is Doctor Sabz Ali. Shah whose evidence has been noticed in para. 5 above. P. W. 13 is Mr. Qadir Bakhsh Javed, the 1st Class Magistrate who recorded the dying declaration of the deceased, Ex. P. E. in this case. This was done at 12‑45 p.m. on the day of the incident, after the Doctor had certified, that the deceased was able to give a statement aid tae Magistrate had also satisfied himself on this point. The Magistrate further says that the deceased was then unable to sign his statement, because his right hand was then engaged in receiving blood transfusion. P. Ws. 4, 5 arid 6 are the three Assistant Sub‑Inspectors of Police who participated in the investigation of this case. P. W. 4, Ghulam Qasim Khan, A. S. I. had prepared the inquest report Exh. P. Q. and the injury sheet Ex. P. Q.

1. P. W. 5, A. S. I. Jan Khan, had also been to the Civil Hospital, Bannu and prepared the injury sheet Ex. P. C. P. W. 6, A. S. I. $her Khan, was on the day of the incident present at Tajori Police Station and received the telephone‑message concerning this crime from the Moharrir of P. A. R. Post, Ghazni Khel. P. Ws. 7, 8 and 9, naively, Karamatullah Khan, Aurangzeb Khan and Nezam Khan are the three witnesses who ran to the aid of the deceased immediately after he had been shot, as mentioned in para. 2 above. Of these, P. Ws. 7 and 8 are the actual eye‑witnesses to the shooting of the deceased by the appellant. They are both residents of village Ghazni Khel and on the morning of the incident they had like the deceased gone at about 7‑30 or 8 a.m. to the fields for easing themselves and were returning along the pathway to their village behind the deceased, when they saw the appellant emerge from the disused house of Ali Jan, greet the deceased and then after the deceased had gone a little ahead pick up his gun and shot him in the back. P. W. 9, Nezam Khan, 'runs a grocery shop 4t a distance of about 35 paces from the spot and hearing the shot he rushed to the injured Zahuruddin who along with P. Ws. 7 and 8 upon his enquiry informed him that it was the appellant who had shot at the deceased. This witness belongs to a different caste to that of the deceased as well as that of the appellant and he leas no connection or relationship with the deceased or any enmity with the appellant.

7. P. W. 10, S. I. Gul Aslam Khan, was then incharge of the P. A. R. Post Ghazni Khel, where the appellant proceeded immediately after the occurrence and who recorded the statement of the appellant and secured his rifle, bandolier and cartridges, as mentioned in para l above. P. W. 11, L. H. C. Khanroz, was also posted at that time at the P. A. R. Post, Ghazni Khel and is the mashir of the seizure by P. W. 10 of the rifle, bandolier and the 37 cartridges from the appellant, P. W. 12, Sher Alam Khan, a school teacher of the village Ghazni Khel, who served as a mashir of the securing by the police of the empty shell Exh. P. 6, the metal cover of the bullet Ex. P. 7 and of the securing of the arms permit Exh. P.

8. P. W. 13, Muhammad Nazir, is also a mashir of the sealing by the Sub‑Inspector of the blood stained earth and blood‑stained banyan of the deceased before being despatched to the Chemical Examiner, P. W. 14, M. H. C. Fazal Rehmam, had recorded the first information report of Kiramatullah Khan (P. W. 7), which is Ex. P. B. in this case. Lastly, there is the Investigating Officer, S. I. Muhammad Ali Khan then S. H. O. Tajori Police Station, whose evidence has been noticed in para. 3 above.

8. Sheikh Abdul Majid, Advocate appearing on behalf of the appellant argued that the evidence in this case is insufficient to establish the guilt of his client. He contended, in the first place, that there were only two eyewitnesses, both cousins of the deceased. P. W. 7, Kiramatullah is admittedly the first cousin of the deceased and P. W. 8, Aurangzeb Khan, is also a distant cousin of the deceased. These two witnesses being near relations of the deceased had come forward to give false evidence on behalf of their deceased cousin. He argued, in the second instance, that there has been great delay in the recording by P. W. 7, Kiramat ullah Khan, of his first information report. He urged that if P. W. 8 Aurangzeb Khan had actually witnessed the occurrence inasmuch as he did not accompany the injured to Bannu there was no reason whatsoever, for him not to record his own F. I. R. earlier that day. Police Station Tajori is about 12 miles from the scene of offence, and consequently this witness could easily have gone there to lodge his own report.

9. We have considered the evidence in this case and the arguments .of the learned defence Advocate. There can be no doubt that P. Ws. 7 and 8 are both co‑villagers of the deceased Zahuruddin, and as is customary in villages they must have gone into the field in the morning for the purpose of answering the call of nature. In fact, the I4ivestigating Officer, P. W. 15, S. I. Muhammad Ali Khan, has stated in his evidence that after examining P. Ws. 7 and 8, he felt it necessary to check up on their statement and he went into the field to verify whether these two witnesses had actually eased themselves there and found that it was so. With regard to the second argument of the learned defence Advocate, namely, the delay in recording the first information report in this case, this circumstance has fully been explained not only by P. W. 7 himself, but also by the Doctor P. W. 2 who confirmed the statement of P. W. 7 that inasmuch as the injured Zahuruddin needed blood transfusion it was necessary to take samples of the blood for testing and for this‑purpose he, the Doctor, had detained P. W. 7 at the hospital at Bannu, It appears to us to be only natural that P. W. 7 was at that time more concerned with saving the life of his cousin Zahuruddin than in bringing the culprit to book. Having considered the evidence on the record of this case available against the appellant, we feel that the charge against him has been fully established. Not only have we the ocular evidence of P. Ws. 7 and 8, but this is supported and corroborated by the evidence of P. W. 9, Nezam Khan, and above all by the dying declaration, Exh. P. E. In this dying statement, the injured Zahuruddin has stated how Hakim Khan appellant fired at him, when he was returning to his village that morning after having eased himself. He has also mentioned the two witnesses P. Ws. 7 and 8, who were following him along the path and who immediately came to his aid.

10. There remains the last piece of evidence against this appellant, namely, the statement made by him to P. W.

10. S. I. III Aslam Khan, at the P. A. R. Post Ghazni Khel at 8‑15 a. m the same day. This statement is Exh. P. A./1 and being in point of time the first and earliest report of the offence in question it is for consideration whether this statement is admissible in evidence. This point was agitated and considered in the Court below and we observe that he learned Sessions Judge, after considering the law on the point, decided that this statement as a whole is not inadmis sible in evidence, and that the prosecution could rely upon the portions of this statement which do not constitute a confession. Although the question of the admissibility in evidence of this particular statement was of purely academic importance so far a the case against this appellant was concerned, yet, as the matter is one of importance, we allowed the Additional Advocate‑General to address us at some length on this point. In the course of his argument, Chaudhri Muhammad Ali, referred to a large number of cases, and it would be useful to mention the case law referred to by him, so that this important point may be carefully considered and set at rest. The learned Additional Advocate General invited our attention to a decision of the Privy Council in A I R 1939 P. C.

47. He pointed out that in that judgment Their Lordships had defined the word "confession" and had gone on to say that an admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. On, the basis of this authority, the learned Additional Advocate General contended that the statement given by the appellant to P. W. 10 should not be excluded in tote, but only the parts where the appellant has confessed to the shooting of the deceased. The remaining passages which are of an introductory nature or where the motive for the offence is set out should not be excluded from evidence. The next case cited was A I R 1941 Stag. 86 in which it was held that the whole of the first information report by an accused need not be excluded from admission, but only the confes sional part is to be excluded. Again, in A I R 1941 Lah. 82, Mr. Justice Skemp held that under section 25 of the Evidence Act only confessions are excluded and not admissions not amounting to a confession. The learned Additional Advocate‑General then referred .to two cases A I R 1948 Lah. 19 and

43. In the first of these cases, it was held that a first information report which amounts to a confession is not admissible as being a confession made to a police officer, but a report not amounting to a confes sion can be admitted in evidence. The second case is also to the same effect. In A I R 1952 Pepsu 98, a Division Bench took the view that where the accused gives the first information report, so much of it which amounts to confession by the accused is not admissible in evidence against him but those portions which do not relate to the commission of the crime itself, as for instance which are introductory or narrate the motive and the opportunity for the crime or the presence of certain witnesses or give informa tion about facts which are admissible under section 27, Evidence Act would be relevant evidence in the case. In A I R 1956 Cal. 83, it was stated that a statement made by the accused to the police containing an admission of a gravely incriminating fact or even a conclusively incriminating fact is not of itself a confession, and not being a confession, it cannot be excluded under section 25, Evidence Act. If such a statement is made to the police prior to the investigation in the case, then it is also not hit by section 162, Cr. P. C. and thus it becomes admissible in evidence. In A I R 1957 Mysore 50, the same view was taken, namely, that the prohibition under section 25 is directed against proof of confession made to a police officer, but not against away other matter unconnected with the confession of the crime. The learned Additional Advocate then referred us to two cases of this very High Court State v. Ghandal (P L D 1960 Pesh. 137) and Ghulam Muhammad v. The State (P L D 1961 Lah. 146). In the, first of these cases, Abdul Aziz Khan and Ortcheson, JJ. held that "a confession statement of an accused incorporated in the first information report cannot be used against him as it amounts to a confession to a police officer which section 25 of the Evidence Act does not allow to be proved". in this case, the question of dissection did not arise, though we observe that a passing reference was made to the case of Harnam Kisha v. Emperor (A I R 1935 Bom. 26), where Beaumont, C. J. and Sen, J. expressly disassociated themselves from the dissection theory. In fact, Their Lordships observed in that case as under:

"If the first information report is given by the accused to a Police Officer and that information admits his own guilt, it is a confession, which section 25, Evidence Act does not allow to be proved." But their Lordships went on to add that if the confession shows opportunity for the offence, motive for the offence, and commission of the offence, it cannot be said that the portion of it which deals with opportunity, or the portion of it, which deals with motive, can be treated as no part of the confession. In P L D 1961 Lah. 146, again the question of dissection did not pointedly arise, and it was held that "the first information report which amounts to a confession is not admissible, being a confession made to a police officer, bat an F. I. R. not amounting to a confession tan be admitted in evidence". The last case cited before us by the learned Additional Advocate‑General of which there is no detailed report, but only the head note, is to be found in A I R 1955 N. U. C. (Madhya Bharat) 3405. This is a case from the High Court of Madhya Bharat, in which the question of dissection was considered and it was held that "a confession must be looked upon as an integral whole and it must be accepted or rejected as a whole. Hence the statement made by the accused in the first information report is inseparable and as the whole of it amounts to a confession and hit by section 25 of the Evidence Act, it cannot, in consequence, be made use of". It would thus be observed that the case law on this important point is not equivocal, but that there is authority both for and against the dissection theory.

11. Now in the case before us we find that the appellant lodged a first information with the police, in the coarse of which he made two admissions, one was an admission of enmity between the deceased and himself ; the second was a direct admission of murdering the deceased. The learned Sessions Judge held that section 25, Evidence Act prohibited proving the second, but not the first, since the second was a confession and the first was not a confession. The Privy Council case of Pakala Narayana Swami v. Emperor (AIR 1939 P C 47) establishes the negative proposition that no admis sion or series of admissions can constitute a confession unless guilt is directly admitted: admission merely suggesting an infer‑once of guilt do not amount is a confession. But this case has no State bearing on the question before us, namely, "Does confession mean the whole of a statement in the course of which guilt is Ray directly admitted, or does it mean only that part which directly admits guilt ?" To us it seems axiomatic that the word "confession" must bear the same meaning through out the bundle of sections 24‑3 Evidence Act dealing with confessions, and we can see no reason why this word should be used in any different sense in section 164, Cr. P. C. We think that in ordinary language confession means the statement the whole statement in the coarse of which a man admits his guilt, and the practice of the Courts in dealing with A sections 24 and 30, Evidence Act is founded on this meaning. We knew of no case in which a Court rejecting a confessional statement under section 24 has admitted a part as amounting not to a confession, but only to an admission. In like manner in section 30, Evidence Act the confession is considered as a whole : otherwise an absurd situation may arise, as for example where A confesses he murdered C at the instigation of B, co‑accused as an abettor : the admission o instigation is as against A merely an admission of motive and not a direct admission of guilt, and if a confessional statement is to be split up into admissions and confessions, then in this instance A's confessional statement cannot be taken into consideration against B, and this is obviously not the practice of the Courts. We cannot find any authority for the dissection of a confessional statement into a confession and admissions, except in cases under section 25, Evidence Act. Non of the authorities favouring the dissection theory gives any reason for ascribing to the word "confession" in section 25, a meaning different from: the meaning which the practice of the Courts has given to this same word "confession" in other sections of the Evidence Act. It may be said `that section 27 of the Evidence Act recognizes splitting, but that is only for one purpose, namely, leading to a discovery, but this does not and cannot mean that splitting in general is allowed.

12. For the above reasons, therefore, we do not agree with the learned Sessions Judge in the view ultimately held by him, namely, that the statement of the appellant in this case made to S. I. Gut Aslam Khan can be split up and that portion of this statement which does not constitute an offence can be used by the learned Public Prosecutor in this case. We think, the first view taken by the Sessions Judge that the whole of the statement is not admis sible as it clearly amounts to a confession is, in law, the correct view.

13. In the result, therefore, acting under section 167 of the Evidence Act, we hold that the remaining evidence, after excluding this statement Exh. P. A./ 1 of the appellant, is sufficient to establish the guilt of this appellant beyond all reasonable doubt, and that this appeal must, therefore, be dismissed and the death sentence confirmed. S.B. Appeal dismissed.