' AFTAB HUSSAIN, J.-Ghulam Hussain was convicted by Mr. Muhammad Hussain Kazi, Additional Sessions Judge, Mianwali on 16-2-1976 for offences under sections 302, 303 and 309, P. P. C. He was awarded death sentence under sections 302 and 303, P. P. C. And was further ordered to pay a fine of Rs, 1,000 as compensation payable to the heirs of the deceased. He was ordered to undergo rigorous imprisonment under section 309, P. P. C. For a period of 6 months to be operative in case the death sentence is not confirmed. The case has been referred to us for confirmation of the death sentence. The convict has also filed Criminal Appeal No, 325/1976 to challenge his conviction and sentence.
2. Ghulam Hussain was admittedly a prisoner in the Mianwali Jail undergoing lite imprisonment in a murder case. The deceased Hassan Din was also undergoing imprisonment in the same Jail. Both of them worked in the carpentary. On the 14th of April 1975 at about 6-30 a.m. Ghulam Hussain, appellant, brought one Mushtaq Hussain to work with him in the carpentary shed. Hassan Din deceased who was Lambardar in the Jail, objected to it, on which some exchange of hot words ensued between the deceased and the appellant. Ghulam Hussain thereupon inflicted several blows with a Tesha. As a result of the injuries received by Hassan Din from these Wows he fell on the ground. Thereafter Ghulam Hussain inflicted a Tesha blow on his own head and ran towards the northern gate of the carpentary shed. On reaching near the gate he inflicted another tesha blow on his head. He was overpowered and removed to the hospital. Hassan Din was also removed to the Jail hospital in an injured condition. He succumbed to his injuries later on.
3. According to the examination conducted by Dr. Asghar Ali, P. W. 15 at 7-40 a.m. The same day, the deceased received 5 incised injuries and one injury with a blunt weapon. His post-mortem examination was conducted by the same doctor at 5-30 p.m. The same day. He found a fracture of occipite parietal bone on the left side. The bone piece was separated from the skull. Front of miller, bore was also cut along with guns and teeth. Membranes of the brain was cut at the site of injury No,
5. The cut of the brain was r deep. In the opinion of the doctor the cause of death was shock and bleeding due to injuries Nos. 1 and 5 which are detailed below :
(1) A stitched wound 2.1-2 on the left side of face near nostril, front upper teeth were protruding loose.
(2) A stitched wound 2r on the left parietal region.
4. Ghulam Hussain, appellant was examined at 7-50 a.m. The same day by Dr. Asghar Ali. He had received the following injuries t
(1) An incised wound 2' x J' skin deep on the front and middle of head 9-3/4' back to hair line.
(2) An incised wound 1.1-2 x r skin deep on the top of head.
5. The First Information Report Exh. P. A./1 was recorded on a writing Exh. P. A. Given by Abdul Hamid, Head Warder, Central Jail, Mianweli, P. W.
8.
6. The police recovered, vide Memo Exh. P. C , the Tesha Exh. P. 1 and its wooden handle axe. P. 2 (The Tesha was in two parts because it was broken when the second injury was caused by the appellant to himself). It was blood-stained and was found as such by the Chemical Examiner vide report Exh.
P. M. It was found stained with human blood by the Serologist to the Government of Pakistan vide report Exh. P. N.
7. The offence has been proved beyond any shadow of doubt by the evidence of disinterested witnesses, namely, Abdul Hamid Khan P. W. 8, Manzur Hussain P. W. 9 and Mahboob Hussain P. W.
10. P. W. 8 as stated was the Head Warder of the Jail and according to his own evidence as well as according to the site plan Exh. P. L. He was at the time of altercation at a distance of about 102 feet from the place of occurrence. From there he was attracted to the spot. Manzur Hussain P. W. 9 was a prisoner in the Jail and was working in the blacksmith shop which is in the same compound as the carpentary. There is no intervening wall between the two. Mahboob Hussain P. W. 10 was also undergoing sentence in the same Jail and was working in the carpentary shed with Ghulam Hussain, appellant and the deceased. Although these persons were cross-examined at length, yet no contradiction could be brought forward in their evidence. In fact their testimony could not at all be shaken. No suggestion of any inimical relations between the appellant and the witnesses as put to them. We are, therefore, in agreement with the learned Additional Sessions Judge that the case against the appellant in so far as offence under section 302, P. P. C. Is concerned, was proved to the hilt.
8. It was argued by the learned counsel for the appellant that it is quite possible that the witnesses might have made these statements at the instance of the Jail authorities, but there is nething to prove tbat the Jail authorities bad any enmity towards the appellant or had any reason to conceal the truth or fabricate the evidence.
9. It may be stated at this stage that the incident was admitted by the appellant in his statement under section 342, Cr. P. C. He, however, set up a plea of self-defence in the following words : "I was present in the carpentary shop doing my work when Hassan Din deceased arrived there and started abusing me. I dissuaded him from doing so, but he persisted whereupon I also abused him in return and being so infuriated Hassan Din picked up the Tesha, attacked and inflicted injuries upon my head. I also picked up a Tesha lying near me and inflicted injuries upon the deceased in my self-defence. None of the P. Ws. (Eye-witnesses) witnessed this occurrence."
10. On account of this plea the learned counsel argued that the circumstances do show that both these parties were armed with Teshas and that the aggressor in such circumstances might be the deceased himself. We do not find anything in support of this plea in the whole of the record. There is not even an iota of suggestion about Hassan Din being armed with any Tesha. We are, therefore, of the opinion that the plea of self defence is false.
11. The learned counsel tried to throw some doubt on the First Information Report by arguing that as conceded by Manzur Huisaln P. W. 9, this report was written by P. W. 8, after the police arrived at the spot. But there is nothing to show that P. W. 8 recorded his statement after any investigation or inquiry by the police. On the other hand P. W. 9 made it clear that "report EXhs. P. A. Was recorded by Abdul Hamid on his own without being dictated by anybody." Even if there be some substance in the argument of the learned counsel, that cannot take away the weight of the evidence of the eye witnesses produced in this case.
12. The learned counsel then argued that a number of other witnesses, namely Mushtaq Hussain, Muhammad Hussain, Yara and Muhammad Shafi who admittedly were eyewitnesses bad not been produced. We are of the opinion that under the circumstances of the case no presumption uncle section 114 of the Evidence Act can be drawn against the prosecution since it appears that the evidence of three witnsees P. W. 8, P. W. 9 and P. W. 10 being sufficient for proving the guilt of the appellant, it was unnecessary to burden the record with similar evidence of other fellow prisoners of the appellant.
13. The learned counsel tried to make out a case under section 304, P. P. C. By an argument that apparently there was a sudden quarrel between the appellant and the deceased. He relied upon Exception IV to section 300. But assuming that there was a sudden fight in the heat of passion, this exception would not play any part in a case where the deceased was totally unarmed while the appellant had a dangerous lethal weapon in his hand and had used it in a cruel and unusual manner taking undue advantage of the position of the deceased. We, therefore, find that the case was rightly held to have been covered by section 302. P. P. C.
14. The learned counsel however argued that this was a case in which in view of possibility of some provocation being there, the lighter sentence for life should have been awarded. He argued that section 301 P. P. C. Under which a prisoner serving sentence of imprisonment for life in a case of commission of murder must be punished with death, is not applicable to the facts of the present case. Since there is an admission in the statement of the appellant that he was a convict undergoing imprisonment for life, the learned counsel placing reliance upon sections 342 and 511, Cr. P. C. Urged that this question could not have been put to the appellant because in the present case no evidence to bring the cake under section 30, P. P. C. Was at all led by the prosecution. In this connection he relied upon Alif Din v. The Pakistan State (1). He also referred to Qaim Din and another v. The State (2). We do not agree with this argument for several reasons. Firstly section 342, Cr. P. C. Deals with the proof of ingredients of offences. It does not deal with the question of sentence or enhanced sentence. In these circumstances it was not necessary to wait for certain evidence before putting the question about his earlier sentence to the appellant. Secondly under section 537, Cr. P. C. Finding or sentence cannot be reversed on account of irregularity, if any, in the trial unless some miscarriage of justice or prejudice to the accused is proved. In a case of admission of a fact by the D appellant it cannot be said that there could be any miscarriage of justice or that the appellant could suffer any prejudice. The third reason is as given in the case of Qaim Din and another v. The State sled Amir All v. The State (3). In both these cases it was held that section 511, Cr. P. C. Did not deal with any exclusive method of proof of earlier conviction, but the methods provided there were in addition to the ordinary methods provided by the law for proof of a fact. In the Lahore case reference was made to section 255-A of the Cr. P. C. Which provides that in a case where a previous convict is charged and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate shall take
(1) PLD 1958 Pesh. 6
(2) PLD 1958 Lah. 421
(3) PLD 1951 Dacca 307 ' evidence in respect of the alleged previous conviction and shall record a finding therein. The condition for the applicability of section 255-A is that there must be no admission of the allegation about previous conviction. We are of the view that this analogy will also apply to a case where the allegation is about the appellant undergoing a sentence of life imprisonment. We find that the admission of the appellant is sufficient to bring the case within the ambit of section 303, P. P. C. The appellant was rightly sentences to death.
15. Even if it is assumed that the case is not covered by section 303, P. P. C., we would not be inclined to award a lesser sentence since there are no extenuating circumstances in favour of the appellant who as stated above has taken undue advantage of the deceased being unarmed and has caused as many as 5 injuries on his body, two of which proved fatal. In either case the appellant must be sentenced to death. We, therefore, dismiss the appeal so far as the case under sections 302 and 303 is concerned.
16. We are, however, of the view that no case under section 309, P. P. C. Is made out. To us it is clear that the injuries which were caused by the appellant to himself were not caused with the intention of causing his own death. These are only superficial injuries which appear to have been caused by him in order to make out a case of self defence for himself. We therefore, set aside the conviction of the appellant under section 309, P. P. C and acquit him of that charge. The appeal is allowed to this extent, but as stated above it fails regarding the offences under sections 302 and 303, P. P. C. The sentence of death is hereby confirmed.