ATAULLAH SAJJAD, J.---Muhammad Nawaz appellant who is about 21 years of age, was tried for the murder of his grandfather Sardar Muhammad by the learned Additional Sessions Judge, Gujrat, and was convicted under section 302 of the Pakistan Penal Code. He was sentenced to death.
Besides the appeal that he has filed against his conviction and sentence, there is a murder reference also before us. This order will dispose of both the matters.
2. The occurrence took place on 28th of February 1967, at 4 p.m. On a kucha road called Purao Road, in the City of Gujrat. The place of occurrence is in the jurisdiction of Police Station Saddar Gujrat and its distance from the Police Station is two and a half furlongs.
3. Sardar Muhammad deceased had married twice. He had a son, namely, Muhammad Sadiq from his first wife Mst. Karam Bibi. The appellant is the son of Muhammad Sadiq. Sardar Muhammad divorced Mst. Karam Bibi about thirty years before the occurrence and married Mst. Rabia Bibi from whom he had no issue. Mst: Karam Bibi after the divorce was living with her son Muhammad Sadiq.
The deceased owned ten kanals of land jointly with his two nephews; namely, Muhammad Shah.
And Muhammad Sharif and we find from the evidence that there was bad blocd between the deceased and his nephews on account of this property and about two years before the occurrence there were security proceedings between them. It was the case of the prosecution that Muhammad Sadiq the father of the appellant used to press his father to transfer his entire property in his name but the deceased resisted this demand and it was on account of this refusal that four days before the occurrence Muhammad Sadiq aforesaid threatened the deceased that he will be done to death. The deceased mentioned this to Ch. Nadir Khan, P. W. 8.
4. The ocular testimony as well as the evidence of motive in this case is provided by the statement of Ch. Nadir Khan (P. W. 8) who is the sole eye-witness produced at the trial. Two other eye- witnesses, namely, Khizar Hayat a nephew of Ch. Nadir Khan- and Roora a servant of the deceased were cited in the first information report but had not been produced at the trial. Khizar Hayat had gone out of the country and Roora was given up as having been won over. We find from the statement of Ch. Nadir Khan that the deceased used to keep his buffalo at a well called "Chap Akramwala". This well and the land attached to it is jointly owned by Nadir Khan and his deceased brother Muhammad Akram. At the time of the occurrence, Ch. Nadir Khan was standing outside the mos4ue rear Chah Akramwala, with his nephew Khizar Hayat. They saw the deceased driving his buffalo end its one towards the Raghbir Singh Road, Roora was accompany, him. When the deceased passed by a sugarcane field, Muhammad Nawaz appellant emerged out of it. He was armed with a hatchet and he inflicted two or three hatchet blows consecutively on the deceased from the back side. The blows fell on the neck of the deceased. After receiving the injuries he fell down raised an alarm and Ch. Nadir Khan and Khizar Hayat ran towards the spot. The appellant ran towards the fields in the north-western direction carrying along with him the hatchet. He left a chaddar P. 1 at the place which has been described as a loin cloth in the evidence. By the time the witness came near him, Sardar Muhammad had expired. Leaving Khizar Hayat and Roora in charge of the dead body, Cia. Nadir Khan proceeded to Police Station Saddar, Gujrat where he lodged F. I.
R. Exh. P. A. Which was recorded by Ch. Nabi Bakhsh Sub-Inspector (P. W. 9) at 4-15 p m.
5. The Sub-Inspector came to the spot and took into possession chaddar P.
1. He also collected the blood-stained earth from the spot and made it into a sealed parcel. After preparing the necessary documents, the Investigating Officer sent the dead body for autopsy. The cap and the loi of the deceased were found at the spot but no cut marks were discovered on both these garments. The appellant was ar on 28t February 1967.
6. Dr. Ghulam Sarwar (P. W. 1) performed the post-mortem examination on the dead body of the deceased on 27th of February 1967, at 4-I5 p.m. He found the following injuries on the dead body :- "(1) An incised wound with serrated edges due to multiple blows of total circumferential length 11--" from above the right ear on the back up to the angle of the left jaw.
(2) An incised wound 3--" x --" x vertebral column deep, 1--" below injury No. 1 obliquely situated, parallel to injury No. 1. Fourth cervical vertebra was cut. ;"
(3) An incised wound 1--" x --" x jaw bone deep on the lower jaw, horizontally situated, --" below the ear. Jaw bone was cut.
(4) An incised wound in the shape of a semi-circular flap of skin. Circumference of flap was 1--" and diameter was 1". It was situated on the top of the right shoulder."
Spinal cord was divided at the second and fourth cervical vertebra. Left jaw bone was cut.
Vertebral column at 2nd cervical vertebra was cut. All soft structures including carotid arteries were cut up to the oesophagus which was in tact. Injuries Nos. 1 and 2 were individually and collectively sufficient to cause death in the ordinary course of nature. Injury No. 3 was grievous and injury No. 4 was simple. All the injuries had been caused by a heavy sharp-edged weapon. Death was instantaneous and the time between death and post-mortem was about twenty --four hours.
7. The sum total of the evidence of Ch. Nadir Khan (P. W. 8) has been given above He along with his nephew Khizar Hayat watched the appellant inflicting injuries on the deceased with his hatchet.
Before these witnesses could apprehend the appellant he made good his escape and after touching the Raghbir Singh Road disappeared. The witness was not able to find out as to in which direction lie had gone because a sugarcane field obstructed his view when he was at a distance of five or six karams from him. Ch. Nadir Khan came to the spot with the police and found that about 200/300 persons had gathered there. Among them was Mst. Sakina Bibi the daughter of the deceased and her husband Sardar Khan Lambardar. On an enquiry by Mst. Sakina Bibi, the witness told her that Muhammad Nawaz had murdered her father.
Ch. Nadir Khan was subjected to a very lengthy cross--examination and his impartiality was sought to be impeached by many suggestions made by the learned counsel. He admitted that he and his family members were supporting one Akbar Shah in B. D. Elections as against one Iorahim and that he had asked the father of the appellant to vote for Akbar Shah but was not aware whether he had actually voted for Akbar Shah or not. He admitted that the Mahmood Shah had told him that he had his doubts as to whether the father of the appellant had complied with the wishes of the witness and his family members and suspected that he had voted for Ibrahim instead of Akbar Shah. He further admitted that one A.I Ahmad who was the nephew of the maternal grandfather of Sadiq, the father of the appellant, was beaten by one Ahmad Khan and it was also alleged that Muhammad Akram the brother of this witness bad joined the assault with the said Ahmad Khan but he volunteered that his father had got the matter compromised between the parties. It was further stated by this witness that Fazal Hussain and Muhammad Hussain were related to the appellant although be was not in a position to give the exact relationship. He admitted that these two persons were given a beating and stated that Muhammad Akram the brother of the witness was one of their assailants. We also find from the statement of Sardar Khan (P. W. 3), whose father was a cousin of the deceased, that the sister of Ch. Nadir Khan P. W. Is married to him. The suggestion that the deceased had strained relations with his daughter Mst.
Sakina Bibi and he described her as his maid-servant, was denied. The further suggestion that the witness had some dispute with the appellant on the grazing of his buffalo was also repudiated. The suggestion of the defence also was that the deceased might have been done to death by his nephews or by some other unknown person as he was known to have a bad temper.
8. The learned Additional Sessions Judge did not take into account the statement of the deceased made to Ch. Nadir Khan before his death regarding the threat given to him by his son. He in this connection relied on Autar Singh v. The Crown (4 I L R 451=AIR 1924 Lah. 253). A Division Bench of the Lahore High Court had held in this case that section 32(1) of the Evidence Act applied only to class of statements made by a dying person as to the injuries that had brought him to that condition, or the circumstances under which those injuries came to be inflicted. Clause (1) of section 32 of the Evidence Act which makes the declaration of a dead man as to the cause of his death relevant reads as under :- "When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever maybe nature of the proceeding in which the cause of his death comes into question."
We do not think that the words quoted above admit of the narrow construction placed on them in the case referred to above. The words "circumstances of the transaction which resulted in his death" have clearly a wider import and can be said to have covered the declarations made before the death of A a person provided the circumstances narrated therein have a proximate relation with the actual occurrence. It was not brought to the notice of the learned Additional Sessions Judge that the view of the law taken in the case of Autar Singh had not been adhered to in Inayat Khan v. Emperor (AIR 1935 Lah.94), where it was observed that the intention of the Legislature was to give wider meanings to the phrase "circumstances of the transac--petition". The Privy Council held in Pakala Narayana Swami v. Emperor (AIR 1939 P C 47), that the statement made by a dead person relating to the circumstances of the transaction which resulted in his death was admissible even if it was made before the cause of death had arisen or before the deceased had any reason to anticipate death by violence. The circumstances narrated in the statement, however, must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the deponent. The dictum of the Privy Council was followed in The Crown v. Abdul Ghani (PLD 1956 Lah. 300), where a diary kept by the deceased indicating the circumstances of the transaction which resulted in her death was held to be admissible. It was observed that the motive for the crime is one of the "circumstances of the transaction" and a declaration as to motive is admissible provided it is sufficiently proximate in point of time and sequence. We are, therefore, of the view that the learned Additional Sessions Judge was not right in rejecting the evidence of motive on the basis of a judgment which had been dissented from long ago and was at variance with the pronouncement of the Privy Council and that of this Court.
9. Mr. M. Saleem, the learned counsel for the appellant, argued that the evidence of Ch. Nadir Khan was open to attack in ways more than one and we should not accept his testimony merely because he was at one time a practising lawyer. He in this connection invited our attention to the admission made by this witness narrated above and said that although he had disclaimed any knowledge as to for whom the father of the appellant had voted, yet the trend of his evidence showed that he knew that the appellant's father had not obliged him by voting for Akbar Shah. It was argued that the witness was nursing a grudge against the father of the appellant for violating his mandate regarding this matter. The learned counsel also referred to the description of injury No. 1 which was I l'' in length and extended from the right ear up to the angle of the left jaw and argued that this injury was the result of a number of blows and its description went against the assertion of Ch. Nadir Khan that only a couple of blows were given to the deceased while standing. It was the case of the learned counsel that such an injury could not be caused to the deceased while he was standing but it was caused while he was lying.
10. We have given our anxious thought to the arguments advanced at the bar. No question was put to the doctor as to the manner in which injury No. 1 could be caused. Actually, he was not summoned at the trial. If it was the case of the defence that the deceased could not have received this injury while standing, a request could have been made to the learned Additional Sessions Judge for summoning this witness for cross-examination. We are, therefore, not in a position to hold that the assertion of Mr. Saleem that the deceased could not receive this injury while standing has been substantiated. In the excitement of the moment the witness could not be expected to count each blow and may be that the number of blows was more than the witness has given. We have also considered the question whether the learned cross-examiner had succeeded in showing that Ch. Nadir Khan was a chance witness or an inimical witness and our answer is in the negative.
He holds his lands jointly on Chah Akramwala and had taken exclusively to agriculture. His family graveyard is also near the place of occurrence. He asserted that it was his routine to visit his fields daily and spend about twelve hours a day there. We do not find anything improbable in it. We also do not find any reason as to why Ch. Nadir Khan had chosen to implicate the appellant in place of the real assailant. There is no background of enmity between Ch. Nadir Khan and the appellant or his father. Nor has it been shown that he has any particular affinity with Muhammad Sharif and Muhammad Shafi, who according to the defence might have committed the murder. If Ch. Nadir Khan was really annoyed with the father of the appellant regarding the election matter referred to above and was out to trump up a false case, he would have named the father of the appellant rather than the appellant himself. The candid way in which Ch. Nadir Khan made admissions during his cross-examination gives us an impression that he was a witness of truth. We, therefore, believe that Ch. Nadir Khan saw the appellant inflicting injuries on the deceased in the manner described by him. We, find that the appellant was rightly convicted.
11. It was submitted by Mr. Saleem, the learned counsel for the appellant, that the appellant was a young man and had apparently no motive to commit the murder of his grandfather. It was pointed out with reference to the evidence of Ch. Nadir Khan P. W. That the deceased had great affection for the appellant and had been supporting him financially in his studies up to the B. A. Class. It was further stated by this witness that the deceased took the appellant to Rawalpindi so that he could have got him enlisted as a Commissioned Officer in the Army. The appellant himself stated at the trial that his grandfather had great affection for him and apart from paying the expenses for his education, had given him a buffalo to drink milk. The learned counsel submitted on these grounds that the mind of the appellant must have been worked up because of the instigation of his father and the imposition of the sentence of death was not called for in the circumstances of the case.
12. There does not appear to be any reason why the appellant chose to kill his grandfather. It will be legitimate to think that his mind got suddenly agitated under the influence of his father as the latter must have been expressing dissatisfaction over the conduct of the deceased in refusing to transfer the entire property to him. Perhaps the insistance of Muhammad Sadiq regarding this matter was due to the fear that if the property was not transferred to him during the lifetime of the deceased, his step-mother will also inherit. In the circumstances of the case, we feel that it will be in the interest of justice if we substitute the sentence of transportation for life for that of death. We order accordingly. The sentence of death is not confirmed. The appeal and the reference are decided accordingly.