SAAD SAOOD JAN, J.-The appellant, Muhammad Safdar Bhatti (aged 18 years) was convicted by an Additional Sessions Judge at Gujranwala of offences under sections 302 and 382 of the Pakistan Penal Code for causing the death of Iftikhar-ud-Din. Deceased, and stealing his scooter. For the offence under section 302 be was sentenced to death and to pay a fine of Rs. 10,000 or, in default thereof, to suffer rigorous imprisonment for a period of three years. For the offence under section 382 he was ordered to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2,000 or, in default thereof, to receive further rigorous imprison--ment for a period of six months. The appellant has filed this appeal against his conviction and sentences and the learned Additional Sessions Judge has made a reference to this Court for the confirmation of the sentence of death imposed upon him. This judgment will dispose of both these matters.
2. The deceased belonged to Gujranwala. He worked in West Germany but visited GujranwaIa frequently. According to the prosecution in October 1976 he came to Gujranwala and, on his way back to West Germany, he took with him a number of persons including the appellant with the object of getting them employed there. Apparently he received some money from the appellant in consideration for taking him to West Germany. Whilst in West Germany the deceased managed a job for the appellant. Six months later, the appellant returned back to Gujranwala after assaulting a German girl. About two months prior to the occurrence the deceased again visited Gujranwala. The appellant met him add asked him for the return of his money. The deceased rejected the claim of the appellant in this regard on the ground that he had fulfilled his part of the bargain by taking him to West Germany and getting him employed there. The appellant was not satisfied with the reply of the deceased and insisted that his money should be paid back to him.
3. The occurrence took place on 16-9-1977. It was the day of Eid-ul---Fitr. In the early afternoon of that day the appellant visited the house of the deceased and told him that his father wanted to see him. The deceased and the appellant then went to the house of the appellant in Mohalla Bakhtewala on the scooter of the deceased. At the house of the appellant be and his father repeated their demand for the return of the money. The deceased once again denied his liability for a refund. Ultimately it was decided to refer the dispute to a retired police officer by the name of Shabbir Hussain Shah op the following day. Immediately thereafter the deceased came out of the appellant's house. The appellant asked him for a lift upto the main road. The deceased obliged him and made him sit on his scooter. As they reached near the main road the appellant asked the deceased to stop. The deceased stopped his scooter. Immediately thereafter the appellant whipped out a knife and inflicted a large number of blows on the person of the deceased. On the alarm raised by the deceased Abdul. Ghani (P. W. 7) and one Muhammad Yousaf were attracted to the spot. On seeing them the appellant rode away on. The scooter of the deceased.
4. The deceased was taken to the District Headquarter Hospital, Gujranwala, where be was examined by Dr. Harbans Lal at 4-55 p.m. After obtaining the medico-legal report of the deceased his father Sitaj Din and Abdul Ghani (P. W. 7) proceeded to the local Police Station. On the way, near the railway station, they met A. S. I. Muhammad Majeed (P. W. 12) of Police Station, Kotwali. A. S. I.
Muhammad Majeed (P. W. 12) accompanied them to the District Headquarter Hospital. After obtaining a certificate from Dr. Harbans Lal (P. W. 8) that the deceased was fit to make a statement A. S. I. Muhammad Majeed recorded his statement (Exh. P. C.) at 10.30 p. m. On the basis of this statement, a case was registered at Police Station, Kotwali on the same night at 11-00 p. m. As the condition of the deceased worsened he was taken to the Mayo Hospital at Lahore where be expired on 20-9-1977 at 3-45 p.m.
5. The post-mortem examination of the deceased was performed by Dr. Shah Nawaz (P. W. 1) who was posted as medical officer at the District Headquarter Hospital, Guiranwala. The deceased had eleven injuries on his person. They had been caused by a sharp-edged weapon. Two of the injuries one in the abdomen and the other on the chest, were grievous in nature. According to the doctor these two injuries were sufficient in the ordinary course of nature to cause death. He opined that the death was due to haemorrhage and shock as a result of the said injuries.
6. The appellant was arrested on .18-9-1977 while riding on the scooter of the deceased. On his search a blood-stained knife (P. 3) was found from the fold of the naifa of his shalwar. The recovery of the knife and the scooter was also witnessed by Abdul Ghani (P. W. 7) and one Yousaf who was not produced at the trial. The knife was sent to the Chemical Examiner and the Serologist and according to the reports the blood on the knife was of human origin.
7. The appellant pleaded not guilty to the charges against him. He denied that he was responsible for causing the death of the deceased or that the knife or the scooter was recovered from his possession. He alleged that he had been falsely implicated at the instance of Shabbir Hussain Shab whose sons owed some money to him. He did not produce any evidence in his defence.
8. The case of the prosecution against the appellant rests upon the ocular testimony of Abdul Ghani (P. W. 7), dying declaration made by the deceased before Abdul Ghani (P. W. 7) and A. S. I.
Muhammad Majeed (P. W. 12) and the recovery of the blood-stained knife and the scooter of the deceased from the possession of the appellant. It may be mentioned that Muhammad Yousaf who was also cited as an eye-witness in the F. I. R. Was not examined at the trial. Siraj Din father of the deceased, had died before the trial could begin. The learned Additional Sessions Judge rejected the evidence with regard to the recovery of blood-stained knife from the possession of the appellant and the learned counsel appearing for the State did not dispute his findings in this regard before us.
9. Abdul Ghani (P. W. 7) lived in Wahdat Colony in the same street in which the house of the deceased was located. His house was 1-- miles away from the scene of occurrence. While giving an ocular account of the occurrence he stated that on the relevant day he was going to meet a niece of his wife and that on the way be saw the appellant inflicting knife blows upon the deceased. He also alleged that after injuring the deceased the appellant decamped on the scooter. It may be mentioned here that there was no direct relationship between this witness and the deceased though they belonged to the same caste.
10. The learned counsel appearing for the appellant pointed out that the assault on the deceased took place in a densely populated area and that the scene of occurrence was surrounded by shops and houses. He submitted that instead of producing any witness from the locality the prosecution had chosen to examine a chance witness, that is, Abdul Ghani (P, W. 7), who lived in an entirely different locality to give an eye-witness account of the occurrence. The submission of the learned counsel has substance inasmu ch as the prosecution did not produce any witness from the locality where the occurrence took place but this by itself is not a sufficient reason why the testimony of Abdul Ghani (P. W. 7) should be rejected. He had no enmity with the appellant and it seems unlikely that he would perjure himself to implicate an innocent person. He has given an explanation for his presence, at the spot at the relevant time and there seems to be no reason to reject the same. The attack on the deceased took place at a place where the presence of Abdul Ghani (P. W. 7) could by no means be regarded as improbable.
11. The learned counsel for the appellant argued that Abdul Ghani (P. W. 7) was more closely connected with the family of the deceased that a the prosecution was prepared to admit in support of his contention he stated that this very witness had taken the deceased to the hospital ; that he had accompanied the father of the deceased to the police for reporting the incident ; that it was he who had informed the police abut the death of the deceased ; that he was a member of the party organized by A. S. I. Muhammad Majeed (P. W. 12) which went to arrest the appellant and that he was also a witness to the alleged recoveries of the blood-stained knife and scooter from the appellant.
12. The circumstances to which the learned counsel has referred to indicate that after the occurrence Abdul Ghani (P. W. 7) had not entirely disassociated himself from the case but they are hardly sufficient to Me] him an interested witness. It is to be noticed that the deceased belonged to this Mohalla and to his caste. He had been a witness to a grave incident. His conduct, therefore, in assisting the family of the deceased during the course of investigation can hardly be described as somewhat extraordinary. It does not affect his reliability as an eye-witness of the occurrence.
Abdul Ghani (P. W. 7) has also deposed that on his inquiry as to why the appellant had given knife blows to him the deceased told him that he had taken the appellant to Germany and had got him employed there in accordance with an agreement ; further that during his stay at Germany the appellant stabbed a German woman and thereafter sought his assistance but he refused to help him in the said affairs ; it was for that reason that the appellant had assaulted him. In our view this dying declaration of the deceased before this witness further strengthens the case of the prosecution against the appellant. Even though the defence took up the position that Abdal Ghani (P. W. 7) was not present at the scene of occurrence at the relevant' time but it did not dispute that be had begun to attend upon the deceased soon after the attack. Now, according to Dr. Harbans Lal (P. W. 8) the deceased was not unconscious when he was examined by Dr. Harbans Lal (P. W. 8).
In fact, even till 9-30 p.m. He was fit to make a state--ment. It was not a case of a bit and run attack. The deceased received as many as II blows at the bands of his assailant in broad daylight.
There can be no doubt that the deceased was aware of the person who attacked him, It is but natural that those attending upon him must have inquired from him about the identity of his assailant and the circumstances under which be was attacked.' There was no reason why the deceased should have attributed his injuries to any innocent person. There is also no reason why Abdul Ghani (P. W. 7) should have distorted the information given to him, by the deceased with regard to his assailant in order to involve an innocent person with whom he had no enmity whatsoever.
13. The F. I. R. In this case is attributed to the deceased and for that reason it also constitutes a dying declaration of the deceased. It is to be noticed that before recording his statement A. S. I.
Muhammad 11fajeed (P. W. 12) had obtained a certificate from Dr. Harbans Lal (P. W. 8) whether the deceased was in a fit condition to make a statement. Admittedly, the doctor was not present while A S. I. Muhammad Majeed (P. W. 12) was taking down the statement of the deceased. There is no certificate of the doctor that the deceased had retained full possession of the sense right till the end of his statement. He statement is fairly lengthy and detailed and it must have taken some time to record. However that may, be, the conduct of A. S. I. Muhammad Majeed (P. W. 12) during the course of investigation has not been such as to inspire confidence. In this regard only one instance will suffice. Abdul Ghani (P. W. 7) who was an eye-witness and Siraj Din father of the deceased met him at the railway station together with the medico-legal report of the deceased. Instead of immediately recording the statement of Abdul Ghani (P. W. 7) or Siraj Din for the purpose of lodging the F. I. R. He went straight to the hospital. Quite obviously be wanted to hold preliminary investigation before getting an F. I. R. Registered. In order to cover up his illegal action he took up the position at the trial : ---I had not inquired anything about the occurrence from Siraj Din and Abdul Ghani. Immediately on receipt of the medico-legal report I started for the hospital. I do not think it necessary to confirm from them because I wanted to know the opinion of the doctor first. Siraj Din and Abdul Ghani did not tell me of their own that they were eye-witnesses of the occurrence. The said two persons did not name any person as an accused before me at that time.--- This is obviously a false statement. As already mentioned the deceased was in his senses even when armed with a medico-legal report A. S. I. Muhammad Majeed (P. W. 12) reached the hospital.
Although the defence contested the claim of Abdul Ghani (P. W. 7) as an eye-witness of the occur- -rence it did not dispute that he and Siraj Din were in attendance upon the deceased soon after the attack upon him. It is most natural that the deceased would have informed them about the person who had injured him and the circumstances under which the occurrence took place. It is also difficult to believe that on receiving the madico-legal report from Siraj Din A.-S. I. Muhammad Majeed (P. W. 12) would riot have inquired from him and Abdul Ghani (P.W. 7) as to what had happened. Quite obviously A. S. I. Muhammad Majeed (P. W. 12) told a lie at the trial in order to hide his own illegal action in not taking down statement of either Siraj Din or Abdul Ghani (P. W. 7) for the purpose of recording the F. I. R. Such being his conduct it will not be safe to rely upon the dying declaration which he claims to have recorded on the dictation of the deceased.
14. The learned counsel for the appellant pointed out that even though the occurrence took place at about 3-30 p.m. Or 3-45 p. m. The statement which formed the basis of the F. I. R. Was not recorded till 10-30 p.m. He argued that a period of 7 hours in getting the F. I. R. Registered was too long in view of the fact that the Police Station was at a short distance both from the place of occurrence and the hospital. He also contended that this delay compromised the entire case of the prosecution. There is no doubt that delay in getting an F. I R. Recorded is a suspicious circum-- stance but this by itself cannot invariably be treated as fatal to the entire case of the prosecution.
Here, as already pointed out, we have a reliable independent witness, namely, Abdul Ghani (P. W. 7) who had no reason to falsely implicate the appellant or give a false account of the occurrence and we do not see how we can reject his testimony merely on the ground that the incident was not immediately reported to the police.
15. For the reasons stated above we are satisfied that it was the appellant who caused the various injuries found on the deceased. Considering the weapon used and the site of the injuries there can be no doubt whatsoever that while inflicting injuries upon the deceased his intention was to kill him.
Thus he was rightly convicted by the learned Additional Session C Judge of an offence under section 302 of the Pakistan Penal Code. So far as his conviction under section 382 of the Pakistan Penal Code is concerned we do not think that all the ingredients of this offence are present. It is simply a case of taking away a scooter without the consent) of the deceased without having made any previous preparation for this purpose. We would, therefore, set aside his conviction and sentence for the offence under section 382 of the Pakistan Penal Code and instead convict him of an offence under section 379 of the same Code. For this offence we direct that he shall suffer rigorous imprisonment for a period of two years.
16. As regards the sentence for the offence under sections 302 the Pakistan Penal Code the learned counsel appearing for the appellant stated that at the time of occurrence the appellant was only 15 years o age. In support of this submission he pointed out that at the trial the appellant gave his age as 18 years. The trial was held about three year after the occurrence. He argued that as at the relevant time the appellant was of immature mind it would not be appropriate to exact the extreme penalty from him. It is to be noticed that at the trial the appellant did not adduce any proof with regard to his age. The learned Additional Sessions Judge did not accept the estimate at which he gave of his age but instead relied upon the entries occurring in the passport which he had obtained for the purpose of going to West Germany. In the passport his date of birth was recorded as 1-7-1956. This would make him about 21 years of age at the relevant time. The learned counsel for the appellant was perhaps right in contending that the entries in the passport ought not to have been used by the learned Additional Sessions Judge for the purpose of determining the appellant's date of birth for the reason that he was not given an opportunity of explaining them away but this does not further his case in any way. If the appellant wanted to take advantage of his extreme youth in the matter of sentence he ought to have led some proof with regard to his age.
This he has not done and we see no reason why he should not suffer the normal penalty by law for the offence under section 302 of the Pakistan Penal Code. The murder was committed in broad daylight in an extremely cruel manner. Accordingly, we confirm the sentence of death imposed upon him by the learned Additional Sessions Judge. The sentence of fine also does not require any interference.
17. The appeal and the reference are disposed of accordingly. The sentence imposed upon the appellant for the offence under section 379 the Pakistan Penal Code shall become operative only if for some reason the sentence of death is not executed in which event it shall run concurrently with any other sentence of imprisonment he may receive for causing the death of the deceased.