P (PLP)

JUDGMENT. Amanat Ali was tried by the learned Sessions Judge, Rawalpindi, under section 302 Pakistan Penal Code. He was convicted under section 304‑A Pakistan Penal Code only and sentenced to two years' rigorous imprisonment. An appeal has been preferred to this Court on behalf of Amanat Ali and the complainant in the case, Lal Hussain, has also put in a revision petition praying that the conviction be altered to one under section 304 Pakistan Penal Code and the sentence suitably enhanced. This order will dispose of the appeal and the revision petition together. The occurrence in the course of which Sadiq deceased in this case, lost his life took place on the 20th of July 1949, at about digarwela within the abadi of village Panjgran. The F. I. R. was lodged by Lal (P. W, 2) the same day at about 7‑30 p. m., the police station being some two miles away. The deceased was a servant in the employ of Mukhtar Ali (P. W. 12). It appears that he had lopped off some branches of a kikar tree owned jointly by Mukhtar Ali P. W. and. the appellant Amanat Ali. The latter's brother, Yusaf, met the deceased accidentally in the village lane and on his questioning him as to why he had cut off branches from the kikar tree, there ensued an altercation between them. The deceased, it is alleged, threw down Yusuf on the ground and sat on top of him. At this juncture the appellant is said to have come out on a chabutra in front of his house with a 303 rifle in his hand, for which he held a license and to have fired at the deceased. The shot did not hit Sadiq but struck against the wall of the opposite house some six or seven feet above ground level. Sadiq ran towards his master's baithak. On entering the door‑way, he is alleged to have turned round to have a look, when the appellant fired another shot which hit him in the face and killed him outright. The prosecution story was supported at the trial by Mukbtar Ali (P. W. 12), Lal (P. W. 2), Mansabdar (P. W. 3), Safdar (P. W. 4), Lorasab (P. W. 8) and Fazal Ilahi (P. W. 9). Out of these, Lal, as has been mentioned above, was the informant. The names of Mukhtar Ali, Mansabdar and Safdar P. Ws. are mentioned as eye‑witnesses in the first information report but Lorasab and Fazal Ilahi are not so specifically referred to. The F. I. R. contains only a brief recital and the impression one gets on its perusal is that the deceased was hit with the very first shot fired, at the place where he was grappling with Yusaf. It is, however, made clear that he fell down near the door of Mukhtar, his master. It appears to me that the sequence of events is not clearly given in the report, and it was mainly on this ground that the learned Sessions judge expressed the view that Lal was probably not an eye‑witness. In Court, Lal gave all the material details and his deposition was consistent with the statements made by the other P.Ws. The circumstances that he failed to give most important details in the F. I. R. does detract from the value of his testimony. Of the remaining eye‑witnesses, all except Lorasab are connected with Mukhtar Ali (P. W. 12), the employer of the deceased. The latter's relations with the accused and his brother were undoubtedly strained for a long time. Lorasab (P. W. 8) is not related to him and nothing was elicited in his cross‑examination which could show that he was actuated by malice against the appellant. It is, however, argued that he was friendly to the P. Ws'. party. Before the committing Magistrate he had admitted that his father had trained a horse called "Medal" belonging to Muhammad Sarwar P. W., whose statement as recorded by the committing Magistrate was transferred to the Sessions' record under section 33 of the Pakistan Evidence Act as he was too ill to be examined personally by the learned Sessions Judge. Muhammad Crown Sarwar admitted that he had enmity with Amanat Ali accused. This Muhammad Sarwar incidentally is the father of Lal P. W. S, A, The witness denied at the trial having made the admission referred Rahman, J to above in the committing Court. To souse extent, therefore, he may also be regarded as inclined towards the complainant's party. He, on his own showing, had witnessed the occurrence because he happened to come to that side of the village to purchase gur. He could justifiably, therefore, be described as a chance witness. Amanat Ali, when examined by the committing Magistrate, denied that his brother Yusaf had any dispute with Sadiq deceased over the kikar tree. He denied that he had fired at and killed the deceased. He suggested that the case had been trumped up by the machinations of Mukhtar P. W. who wanted to usurp his property. At the trial he adhered to this version. He admitted that he had gone to the Police Station, Rewat soon after the F. I. R. in this case had been recorded but he explained that he did so because he had heard that the other party had themselves killed the deceased and had managed to get a report recorded against him. For the first time, he alleged, that the deceased had a quarrel with Farzand Ali, son of Mansabdar P. W. and it was the latter who had shot at and killed the deceased, and the appellant was falsely involved instead on account of enmity. It appears that when the appellant reached the police station, the Sub‑Inspector called him and recorded his statement in the zimni (police diary). In the cross‑examination of Muhammad Shafi, Sub Inspector, learned counsel for the accused wanted to bring on the record a part of the accused's statement made to the Sub‑Inspector. This was objected to on behalf of the prosecution and the learned Sessions judge, after hearing arguments of the parties, held that the statement made by the accused at the thana before the Sub‑Inspector was not hit by section 162 of the Criminal Procedure Code, and as it was of an exculpatory character, it could be admitted into evidence. At the argument stage later, the learned P. P. on behalf of the Crown prayed that the whole of the statement made by the accused at the police station may be brought on the record as only a portion was proved in the cross‑examination of the Sub‑Inspector. The contention was then raised on behalf of the accused that the remaining portions of the statement should not be admitted into evidence as they contained admissions of a damaging nature. The learned Sessions Judge heard further arguments on an adjourned date and the accused's Advocate then raised the identical objection which had been taken by the prosecution that the statement came within the mischief of section 162, Criminal Procedure Code. The learned Sessions judge overruled this objection and admitted the whole statement of the accused into evidence. One of the points in the case concerns the admissibility of this statement. The autopsy on the deceased's dead body was performed by Dr. A. H. Mallick, Assistant Surgeon, Rawalpindi. He found a lacerated wound, " X 1/3", with inverted edges, going very deep into the cranial cavity, " below the left lower eyelid of the deceased Another lacerated shattered wound 6" X 4"oon the back of head of the deceased was found, the skin .and bones underneath being shattered into irregular pieces. The brain matter was coming out of this wound. Death in the doctor's opinion was due to shattering of the brain by a bullet and must have been instantaneous. The same doctor examined one, Jamila Akhtar, aged about 10 on the 21st July 1949, at 2 p. m. and found a small abrasion, 1 /8" X 1/10", over her right upper arm and another minute abrasion, 1/10" X 1/12", one inch above her right collar‑bone. There was no charring or blackening of the skin around these injuries and the shirt which the girl wore, bore no perforation marks or black spots corresponding to the above two injuries although the shirt had full sleeves. One Gulzar was examined the same day by the doctor and found to bear a small round bruise, 1/8" round, on the outer and back aspect of the right upper arm. His shirt too bore no perforation marks corresponding to the above injury. Here again there was no chairing or blackening of the skin round the wound. None of these injuries was the result of a bullet shot or even pellets according to the doctor. This evidence has some bearing on the defence taken which I proceed to discuss. Guzlar Khan was examined as D. W. 1 in the case and deposed that he was in his cattle shed at some distance to the north of Mukhtar's baithak on the day of the incident with his niece, Mst. Jamil Akhtar, and his nephew, Mansabdar. He heard three or four shots being fired and got up from where he was sitting near his cattle. Something hit him on the right arm and Mst. Jamil Akhtar was also hit. They took shelter inside their kotha and came out half an hour later. The same night he appeared before the Sub‑Inspector who had come to the village. He further stated that the deceased had a quarrel with Farzand Ali two or three days before the murder. He suggested that the deceased was a partner with Farzand Ali in the latter's shop business and they had quarrelled over the settlement of accounts. He also asserted that Sadiq was reputed to have illicit connection with Mst. Rakhman or Mst. Rakhmat Jan, sister of Farzand Ali. The witness admitted that Amanat Ali accused's, mother was a cousin of his. He is, therefore, obviously interested in the accused. It is not explained how this witness and Mst. Jamil Akhtar could have been hit by a shot fired by Farzand Ali, who is said to have been in his own house on the south side of Mukhtar Ali's baithak and to have fired at the deceased through a window in the wall on that side. From that position it is impossible that he could have fired a shot which could hit this D. W. or his niece, who were at a good distance to the north of the baithak and screened by buildings. This is apparent on a reference to the site plan prepared in this case. Ex P. F. The medical evidence also belies the suggestion made in defence that the injuries of Guzlar Khan and Jamil Akhtar were caused by gunshot. If Gulzar Khan is to be believed, both he and Jamil Akhtar had their skins blackened while receiving these injuries. This is contradicted by the doctor's testimony. His statement stands uncorroborated on the file and I have no doubt that this version was entirely false. It is to be noted that it was extremely belated. Learned counsel for the appellant pointed out certain discrepancies in the statements of the P. Ws. which he thought discredited them. These discrepancies are on immaterial points and I am not impressed by that argument. Learned counsel then argued that it was extremely improbable that the appellant should crown have shot the deceased dead as he had no serious enmity against him. It is, however, clear that according to the prosecution S. A. evidence, the deceased had grappled with Yusaf, brother of the appellant, and this must have incensed the appellant as the deceased was a mere servant of his enemy. The contention that if the appellant had intended to shoot the deceased he could have done so when he was open to view in the lane, grappling with Yusaf, must be rejected as there was the obvious risk of Yusaf being hit if the appellant had aimed straight. He, therefore seems to have deliberately fired above the head of the deceased at that time so that the shot hit the wall opposite. It may be that he merely wanted to frighten the deceased at that time. Learned counsel then contended that it was improbable that he should have shot at the deceased when the latter had entered his master's house or that the deceased should have turned round to look just at the psychological moment when the appellant fired another shot. The deceased's dead body was found lying on the ground in the kotha, with the feet towards the door in the west and the head towards the east. The shot, after coursing through the skull of the deceased had hit the northern wall more than 2 feet above the ground. It appears that the bullet had been deflected in its course by impact with the skull bones. Learned counsel for the appellant tried to argue that if the deceased had been shot at by the appellant from his house, which was on the south‑west side of Mukhtar's baithak and death was instantaneous, the deceased should have fallen down in the line of the fire and not east to west as he did. But this difficulty would also raise in connection with the defence theory that the deceased had been shot at through the window in the southern wall of the baithak, by Farzand Ali. No argument, therefore, can be founded on this circumstance alone. The Sub‑Inspector performed experiments and found that he could hit within the door of the baithak from the place where the accused was said to have been standing, with two shots out of three fired from there. There was thus no inherent improbability in the deceased having‑been shot by the accused from his house. After giving my best consideration to the facts of the case I have come to the conclusion, in agreement with the learned Sessions Judge, that the prosecution story was substantially correct. I have ignored the statement made by the accused before the Sub‑Inspector at the police station as I am clearly of the opinion that it was hit by section 162 of the Criminal Procedure Code. Learned counsel for the complainant strenuously argued that statement was made voluntarily by the appellant with a view to move the police against the complainant's party and at that time, the Sub‑Inspector had not yet started investigation in this case. This argument does not appear to me to be consistent with the facts in this case. The Sub‑Inspector deposed that after he had finished recording the F. I. R. and was preparing to depart for the spot, he saw the accused arrive, called him and then after questioning him, recorded his statement in the zimni. There is no indication that the appellant had gone there to lodge a counter report. He may have merely gone to offer his defence to the report given by the complainant's party and the Sub‑inspector seems to have recorded his statement as an accused person in the simni. In these circumstances I find that section 162, Criminal Procedure Code, was attracted to ‑the case, and the statement was not admissible in evidence. Learned counsel for the S. A. complainant referred to Emperor v. Btagi (A. I. R. 1941 Oudh 359‑D. 13.) and Qainrul‑Has.zn v. Emperor (A. I. R. 1942 Oudh 60‑S. B.) in support of his ,contention that the statement of the accused recorded by the Sub‑Inspector should be regarded as a counter‑report and not a statement made during the investigation of the case. The rulings, however, are distinguishable on the facts from the present case. In these authorities it was clear that the accused had gone voluntarily. to lodge reports about the incidents from their point of view and those reports were held to be admissible as they were not made during the investigation of the case started on the report of the opposite party. In each case it is a question of fact whether the accused had gone to lodge a report in order to move the police to investigate or not. In the present case I am convinced that the appellant did not intend to do so. I, therefore, held that the statement of the accused was erroneously admitted into evidence by the learned Sessions Judge. The question then is what offence, if any, was committed by the appellant. The learned Sessions judge took the view that the appellant was guilty under section 304‑A, Pakistan Penal Code, for having committed a rash or negligent act. He thought that he had no intention to kill the deceased and could not even be credited with the knowledge that by his firing a shot he might kill him. With all respect to the learned Sessions Judge, I am not convinced of the soundness of this reasoning. In my opinion the appellant must have fired the second shot deliberately towards the door of Mukhtar's baithzk which the deceased had succeeded in reaching. He may not have entertained the intention to kill him, but I think a knowledge may fairly be attributed to him that by deliberately firing in the direction that he did, he might hit the deceased and cause his death. At that moment there was not even the excuse open to the appellant that he wanted to save his brother from the clutches of the deceased. It was not a mere case of negligence or rashness in the circumstances. I, therefore, consider that the offence committed by the accused fell within the purview of section 304, part II, Pakistan Penal Code. Learned counsel for the appellant contended that this Court could not alter the conviction from section 304‑A Pakistan Penal Code to one under section 304, part l I, Pakistan Penal Code on the revision side. The position, however, is that the appellant has appealed against his conviction and a revision petition has been filed for enhancement of his sentence by the complainant. This Court can, therefore, acting on the appellate side, alter the conviction from one under section 304‑A, Pakistan Penal Code to that under section 304, part II, Pakistan Penal Code and then enhance the sentence, if so deemed fit, on the revisional side. This is the combined effect of sections 423 and 439 of the Criminal Procedure Code. The matter is concluded by a Full Bench decision of the Lahore High Court in Bawa Singh Sawan Singly v. Emperor (A. I. R. 1941 Lah. 465.) This view has never been dissented from in this Court and was followed by a Division Bench in Ranjah v. Emperor (A. I. R. 1948 Lah. 74.) I, there Crown fore, alter the, conviction of the appellant to one under Section 304, part II, Pakistan Penal Code and enhance his sentence to four years vigorous imprisonment. K.M.A. Appeal dismissed.