P L D 1959 (W (PLP)

ABDUL AZIZ KHAN, J.

Ghulam Sarwar was tried by the learned Additional Sessions Judge, Muzaffargarh, under sections 302 and 307 of the Pakistan Penal Code. The allegations against him were that on the night between the 28th and 29th of July 1959, he had murdered Chiragh and had caused injuries to Allah Wadha (P. W. 18) at Chah Budhewala, Dakhli Perhar Munda. Agreeing with the unanimous opinion of the assessors, the learned Additional Sessions Judge convicted him under sections 302 and 325, P. P. C. and sentenced him to death on the former and to four years' rigorous imprisonment on the latter charge, with the direction that the sentence of imprisonment has to take effect if the sentence of death is not confirmed by the High Court. The condemned person has appealed to this Court, and 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 confirmation of the death sentence.

2. Ramzan (P. W. 17) and Ghulam Sarwar appellant both originally belonged to village Perhar Munda. A year and a half before the murder under consideration, Ramzan P. W., abducted Mst. Allah Wasai who also belonged to Perhar Munda and who had been betrothed to the appellant. Ramzan P. W., took her to village Uch Gul Imam in Jhang District where she fell down from a tree and died. He brought her dead body to Perhar Munda and buried it after informing her brother Muhammad Yar of her death.

3. On his return from District Rang, Ramzan P. W. took up residence in village Khudai, which is at a distance of eight miles from Perhar Munda. On the 100 h of Moharrim, i.e., the 28th of July 1958, Ramzan P . W., cane to village Perhar Munda and went to the graveyard in order to sprinkle water on the graves of his ancestors. He was accompanied by his cousin Allah Wadha (P. W. 18). Ghulam Sarwar appellant too went to sprinkle water on the graves of his ancestors in the same graveyard. It is alleged that Ghulam Sarwar appellant resented Ramzan's visit to the village and this resentment resulted in the occurrence under consideration.

4. At sunset, Ramzan P. W., went to the house of his cousin Allah Wadha P. W., at Chah Budhewala, which is situate within the limits of Perhar Munda. Chiragh deceased, who was a resident of Pakka Munda, came to Chah Budhewala at sunset in search of his goats which had strayed. As the sun had set, Chiragh deceased decided to spend the night at Chah Budhewala. Ramzan P. W., left for his village Khudai a pehr after sunset. Allah Wadha and Chiragh deceased slept on separate Charpoy in front of Allah Wadha's house. A pehr before sunrise, Allah Wadha P. W., woke up on hearing the cries of Chiragh deceased, and saw Ghulam Sarwar appellant causing injuries to Chiragh with a hatchet. Allah Wadha P. W., intervened and tried to capture the appellant, who retaliated with several hatchet blows to Allah Wadha P. W. Nura (P. W. 19) and Hashim (P. W. 2t)), who were attracted to the scene of occurrence by Allah Wadha's alarm, saw the attack on the deceased and Allah Wadha P. W. Chiragh died instantaneously after the receipt of the injuries.

5. On the morning of the 29th of July 1958, Ghulam Sarwar appellant went on a cycle to the house of Sardar Khan (P. W. 12) situate in Patti Sultan Mahmood and told him that he had murdered Ramzan at Chah Budhewala and had caused injuries to Allah Wadha P. W. Sardar Khan P. W., took the appellant to the house of Pir Abdullah Shah at village Kunal Sindhila, where Ahmed Bakhsh Chowkidar (P. W. 13) was also present. Ghulam Sarwar appellant reiterated his earlier statement before Pir Abdullah Shah and Ahmad Bakhsh P. W., also. Pir Abdullah Shah directed Sardar Khan and Ahmad Bakhsh P. Ws., to take the appellant to Police Post Lungar Sarai.

6. Sardar Khan P. W., reached Police Post Lungar Sarai on the 29th of July 1959, at 12 noon. He was accompanied by Ahmad Bakhsh P. W. and the appellant, and he made the report Exh. P. E. in which he stated, inter alia :- "Today when the sun was a reed-high, Ghulam Sarwar, who was previously known to me, came on a cycle to my house at Chah Jafarwala and stated that he had murdered Ramzan son of Nur Muhammad on the preceding night while Ramzan was fast asleep on a Charpoy at Chah Budhawala, by giving him two hatchet blows. Ghulam Sarwar also stated that he had caused injuries to Waddhu son of Siddhu who was sleeping on another Charpoy next to that of Ramzan and had got up and had tried to capture him (Sarwar). He also stated that he ran away after the murder and threw the hatchet in a canal minor, near Dandan. After hearing the confession, I took Ghulam Sarwar to the house of Pir Abdullah Shah son of Gaman Shah of Darbar Khil Sharif, where Ahmad Chowkidar was present. The aforesaid Ghulam Sarwar confessed his guilt to Pir Abdullah Shah in the presence of Ahmada Chowkidar and stated that two years ago Ramzan had abducted Mst. Wasai, daughter of Gaman, who had been betrothed to him (Sarwar). Ramzan roamed about with the deceased girl in Jhelum and Jhang Districts. On the death of Mst. Allah Wasai, a year ago, Ramzan came back to his village. He (Sarwar) asked Ramzan not to pass by his well Aithewala but in vain. Yesterday, on the 28th of July and 10th day of Moharrim, Ramzan and his relative passed by my well at dopehrwela on their way to the graveyard. They returned at sunset. He (Sarwar) was greatly annoyed at seeing Ramzan pass by his well. He (Sarwar), however, stated that he could not say with certainty the number of blows he had given to Allah Wadha."

6. After recording the report, F. C. Allah Diwaya (P. W. 10) sent a copy of it to Head Constable Faiz Muhammad (P. W. 11), in charge of the police post, in village Muradabad where the Head Constable had gone in connection with another investiga tion. On the receipt of the copy of the report, the Head Constable returned to the police post, where he found Ghulam Sarwar appellant under arrest He then recorded the statements of Sardar Khan and Ahmad Bakhsh P. Ws.

7. Khuda Bakhsh (P. W. 14) learnt about the incident from one Nawaz on the morning of the 29th of July 1958, and went to Chah Budhewala on a cycle. On reaching there he saw Chiragh lying dead and Allah Wadha P. W., in an injured con dition. After learning the details of the occurrence from Allah Wadha P. W., Khuda Bakhsh P. W., left for Police Station Kot Adu, which is at a distance of 24 mils from the scene of occurrence, and lodged the report Exh. P. B., on the 29th of July 1958 at 12-15 p.m., in which he stated inter alia :- "Last year, Ramzan abducted Mst. Allah Wasai, who was betrothed to Sarwar. She died some time after her abduction. Sarwar submitted applications to the officers in connection with this abduction. He bore grudge against Ramzan for having abducted Mst. Allah Wasai. On account of the grudge, Sarwar came to murder Ramzan but has instead murdered Chiragh mistaking him for Ramzan."

8. A. S I. Mahboob Alam (P. W. 21) reached the spot and prepared the inquest report and despatched the dead boby of Chiragh for post-mortem examination. On observing injuries on the person of Allah Wadha P. W., the A. S. I. prepared his injury statement Etch: P. B. The A. S. I., also collected blood stained earth from the spot and sealed it into a parcel vide memo. Exh. P. C.

9. On the 3rd of August 1958, Ghulam Sarwar appellant led the A. S. I. and others to the Lanja Minor and pointed out a place from where hatchet Exh. P. 1 was recovered. The A. S. I., took the hatchet into possession and sealed it into a parcel vide memo Exh. P. D.

10. Doctor M. A. H. Bukhari (P. W. 1) who conducted the post-mortem examination on the 30th of July 1958, observed the following injuries on the dead body of Chiragh :- (1) An incised wound, 2" x 1" x ", on the right upper aspect of sternum, obliquely. (2) An incised wound, 5" x 1 " x 2", on the anterior aspect of clavicle crossing over it from the neck towards the shoulder. (3) An incised wound, 5" x 5" x 1" , over the right shoulder, with deltoid and supra-spinatus chopped off: (4) An incised wound, 7" x 3" x 2 ", below the level of 7th cervicle spine, horizontal direction, with bone underneath cut and fractured. Death in the opinion of the doctor, was due to shock resulting from injury to the spinal cord. The doctor was also of the opinion that Chiragh must have died within a few hours of the receipt of the injuries. The doctor was further of the opinion that Chiragh had died three to four days before the post-mortem examination.

11. Doctor Ghulam Ahmad (P. W. 2) examined Allah Wadha P. W., on the 31st of July 1958, at 8 a.m. and observed the following injuries on his person :- (1) An incised wound, " x " x 1/10", on the lower lip in the middle. (2) An incised wound, " x " x 3/8", on the right of the face, starting from angle of the mouth. (3) Lower four incisors teeth are shaky and right lower canine tooth is also shaky. Right first premollar is broken and there is injury to the gums. (4) A contused wound, " x " x skin deep, on the right side of the forehead. (5) An incised wound 1 " x " x scalp deep, longitudinal, on the left side of the head, " away from the mid line and 1 " in front of the top of the head. (6) An incised wound, 1 " x " x ", on the outer aspect of the left thumb, on the upper part. The part of the upper phalynx was cut. (7) An incised wound, 4 " x 1 " x ", on the upper part of the left shoulder, (8) An incised wound, 3 " x " x skin deep, on the upper part of the left side of back, 3" from the spine. (9) An incised wound, 1 " x 1" x ", on the left side of the back, just below the lower angle of the left scapula. (10) An incised wound, 1 " x " x skin deep, on the inner aspect of the right index finger. The doctor was of the opinion that injuries Nos. 3 and 6 were grievous and the rest were simple in nature. He was also of the opinion that injury No. 4 had been caused with a blunt weapon and the rest of the injuries had been caused with a sharp edged weapon.

12. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He did not make any statement before the committing Magistrate. He, however, made the following statement at the trial :

"I was to recover my debt from Sardar Khan P. W., because he had promised to pay me on that day. When I reached there, a constable was sitting air his house, who arrested me and brought me to Chowki Lungar Police Post Lungar Sarai (sic)."

13. It will be seen from the above statement of facts that the prosecution case rests on :- (1) The evidence of Alla Wadha (P. W. 18), Nura (P. W. 19) and Hashim (P. W. 20), the eye-witnesses of the occurrence. (2) The extra judicial confession of Ghulam Sarwar appellant before Sardar Khan (P. W. 12) and Ahmad Bakhsh (P. W. 13) which is incorporated in the report Exh. P. E. ; and (3) the recovery of the hatchet referred to above.

14. The presence of Allah Wadha (P. W. 18) at the spot at the material time cannot be denied as he received the injuries in the course of the occurrence under consideration. It would be advantageous to reproduce the words in which he narrated the occurrence at the trial :- "About six months ago, Ramzan came to me during Moharrim on the 10th and we went to the graves of our ancestors and sprinkled them with water. The accused was also sprinkling water over the graves of his ancestors. Myself and Ramzan then came to Chah Budhewala. He remained there with me for one pahr of the night and we entertained. ourselves with some music. Chiragh deceased came to my place at about sunset in search of his missing goats. He found his goats among my cattle and he stayed the night with me. Ramzan went away after a pahr of the night to village Khudai. Myself and Chiragh slept on separate cots near each other outside my house. A pahr night still remained when I heard the hue and cry of Chiragh deceased and got up. It was a moonlit night. I saw the accused murdering Chiragh with a hatchet. I tried to get hold of him but he gave me a hatchet blow on the face and another on the left hand. He gave me several other blows with the hatchet. At that time the accused was wearing only a cloth round his waist. When the accused was giving blows to me Hashim and Nura P. Ws., came on the spot. The accused was giving hatchet blows to Chiragh also when he gave the first few hatchet blows to me as I was striving to prevent him from striking Chiragh and he, therefore, struck me also while striking Chiragh. It was at that stage that Nura P. W., came to the spot. Hashim came after Nura. He came when the accused was running away from the spot after giving the injuries to Chiragh and myself. After some time when the accused had gone away Nawaz and Allah Bakhsh also came to the spot. I sent Nawaz to inform the Lambardar Malik Ahmad and his son Khuda Bakhsh P. Ws. Khuda Bakhsh P. W., came at dawn and I told him about the occurrence. He then left for the police station." There is nothing on the record to suggest that Allah Wadha P. W., has a motive to save the real culprit and implicate the appellant in a false case. We have carefully considered the evidence of Allah Wadha P. W., and have no hesitation in accepting it.

15. Nura (P. W. 19) stated in cross-examination that when he reached the spot, the appellant was giving blows to Chiragh deceased while sitting on his (Chiragh's) chest. The other eye-witnesses do not support Nura P. W., on this point. In view of this discrepancy, we do not consider it safe to rely on his testimony.

16. Relying on the statement of Allah Wadha P. W., that Hashim P. W., arrived when the appellant was running away, the learned counsel for the appellant straneously urged that we should not act on the evidence of Hashim P. W., inasmuch as Hashim P. W. could not have - identified the person who was running away. The scene of occurrence is an open place. It is in evidence that the eventful night was a moonlit night. According to the calendar, the moon rose at 5-1 p.m. and set at 2-53 a.m. There was, therefore, nothing improbable in Hashim P. W., seeing the attack while he was running to the scene of occurrence. The learned counsel further urged that Hashim P. W., is a chance witness and, therefore, should not be relied upon. The witness's explanation that he was looking for his camel which had strayed when he heard the cries furnishes an adequate explanation to the witnesse's presence near the spot.

17. Sardar Khan (P. W. 12) and Ahmad Bakhsh (P. W. 13) deposed about the extra-judicial confession which is incorporated in Exh. P. E. It is in evidence that Exh. P. E., was made at 12 noon. The first information report Exh. P. B., was made at 12-15 p.m. The report Exh. P. E., which is admissible in evidence was recorded in the presence of the appellant. The witnesses who deposed about the extra-judicial confession are disinteresteo e persons. Keeping in view the fact that the extra-judicial confes sion was reduced to writing soon after it had been made, we can safely rely on it.

18. Relying on the fact that Patti Sultan Mahmud is at a distance of 20 miles from Chah Budhewala and that there are sand dunes on the way, the learned counsel for the appellant urged that Sarwar appellant could not have reached Patti Sultan Mahmud on the 29th morning. This argument ignores the fact that the appellant went on a cycle. It also ignores the appellant's own statement at the trial in which the appellant admitted having gone to Patti Sultan Mahmud for the realisation of his debt from Sardar Khan. P. W. Exhibit P. E., was recorded at 12 noon. Sardar Khan P. W., merely stated that the appellant came to his house on the 29th morning. No question was put to him to ascertain the exact time of the appellant's arrival at his house. The house of Pir Abdullah Shah is three miles from the house of Sardar Khan P. W. As already stated, the report was made at 12 noon. There is nothing on the record to suggest that it was impossible for the appellant to have reached Patti Sultan Mahmud some time before noon.

19. The hatchet was recovered from the canal at the instance of the appellant, but as it did not bear any blood marks, it was not forwarded to the Chemical Examiner and the Serologist. The evidence of Khuda Bakhsh (P. W. 16) and Ramzan (P. W. 17) establishes the fact that the hatchet was recovered at the instance of the appellant.

20. The chances of concoction between the prosecution witnesses are not only remote but nil. If the witnesses had, in fact, wanted to implicate the appellant, the first information report Exh. P. B., made by Khuda Bakhsh (P. W. 14) would have tallied in all details with the report Exh. P. E., made by Sardar Khan (P. W. 12). The fact that Sardar Khan P. W., mentioned the name of Ramzan as the victim, while Khuda Bakhsh P. W., gave the name of the real victim, belies any suggestion as to con coction.

21. Mr. Mahmud Ali contended that the subsequent report Exh. P. B., made by Khuda Bakhsh P. W., is not admissible in evidence. We do not see any force in this contention. Where a report about the commission of an offence is given to the police at two different places by two different persons, and one is earlier in point of time than the other, the latter report is not a statement made to a police officer in the course of investigation but is an independent F. I. R. and, therefore, can be used in evidence by the prosecution. Emperor v. Lalji Rai (A I R 1936 Pat. 11), Maganlal Radhakishan v. Emperor (A I R 1946 Nag. 173) and Emperor v. Aftab Muhammad Khan (A I R 1940 All. 291) support this view.

22. The mistake on the part of the appellant as to the identity of the victim does not necessarily mean that it was impossible for Wadha and Hashim P. Ws., to identify the appel lant. Both knew him well prior to the occurrence and Wadha had in fact grappled with him in his attempt to secure him. Wadha P. W., received ten injuries at the hands of the appellant. It can be safely assumed that he had seen his assailant while the assailant was causing injuries to him. The evidence of these witnesses, together with the evidence of the extra-judicial con fession and the recovery of the hatchet, leave no doubt in our mind as to the guilt of the appellant. He was, in our opinion, rightly convicted and sentenced under section 302, P. P. C. and we can see no reason for interference. The learned Sessions Judge erred in convicting the appellant under section 325, P. P. C. Injury number six on the left thumb of Wadha which had been caused with a sharp-edged weapon was grievous in nature. The conviction should have been under section 326, P. P. C. The sentence of 4 years awarded under section 325 is substantial therefore interference is not necessary.

23. Ghulam Sarwar's appeal is dismissed and the sentence of death passed on him by the learned Additional Sessions Judge is confirmed. M. A. Appeal dismissed.