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Criminal Appeal No. 775 of 1966/Murder Reference No. 135 of 1967, decided on 6th June 1968.
S. 154‑--First Information Report‑--Delay in lodging F. I. R.--‑Does not per se in all cases give adverse presumption against prosecution.
It is not delay per se in all cases which would give rise to an adverse presumption against the prosecution, but delay in the particular circumstances of a case, coupled with possibilities of fabrication or exaggerations of facts by conference and consultations that would tend to militate against the prosecution.
S. 154‑-Analysis Requirements of First Information Report.
From the analysis of the section, it is clear that in order to qualify itself as a first information report, it should fulfil the following requirements:
(i) it should be an information relating to the commission of a cognizable offence;
(ii) if given orally to an officer in charge of a Police Station, it should be reduced to writing by him or under his direction;
(iii) having been thus reduced to writing it should be read over to the informant; and
(iv) it should be signed by the informant,. giving the information;
(v) its substance should be entered in a book kept by the officer in charge of the Police Station in the prescribed form.
S. 154‑‑‑First Information Report‑Receipt and recording of F. I. R. not a condition precedent to setting in motion criminal investigation.
It is well‑settled that the receipt and recording of an informa tion report is not a condition precedent to the setting in motion of a criminal investigation and being possessed by such knowledge through informal intelligence the police can undertake an investigation of its own motion, without drawing up a formal first information report.
Emperor v. Khawaja Nazir Ahmad A I R 1945 P C 18; Bashir Saigal v. State P L D 1964 Lah. 148 and Muhabbat v. State 1968 P Cr. L J 720 rel.
Omission in F. I. R. of names of some of eye‑witnesses‑Cannot belie claim of other persons to be eye‑witnesses of occurrence, if their presence spelt out from relevant circumstances.
Siraj Din v. Kala P L D 1964 S C 26 rel.
Dr. Javed Iqbal for Appellant.
Mufti Nazar Muhammad for A. A. G. for the State.
Dates of hearing: 22nd and 23rd May 1968.
This Criminal Appeal is directed against the order of the learned Additional Sessions Judge, Lahore, dated the 25th October 1966, whereby he convicted Muhammad Anwar Appellant (29) for an offence under section 302 of, the Pakistan Penal Code, with an award of capital punishment. The proceedings have also been referred to us by the learned Additional Sessions Judge for confirmation of the death sentence under section 374 of the Criminal Procedure Code. This judgment will dispose of both the appeal as well as the reference.
2. The facts as alleged by the prosecution are that the appellant who was an ice‑vendor, running a shop in, Garhi Shahu, Lahore, developed carnal relations with Abdul Ghafur (P. W. 11), whose sister was married to Fazal Elahi deceased. It appears that Abdul Ghafur aforesaid who lived in the same locality with his brother Aftab Ahmad (P. W. 12), no longer relished this sort of relationship, but was nevertheless, forcibly subjected to it by the appellant. Being fed up, he left Lahore for Rawalpindi about seven or eight months prior to the occurrence, and then wrote to his brother Aftab Ahmed that he would not return unless the latter shifted his residence to some other place. On his return, however, at the suggestion of his brother, Aftab Ahmad (P. W. 12i, he started living with his brother‑in‑law Fazal Elahi deceased, presumably with a view to avoid contact with the appellant. Earlier also, Abdul Ghafur (P. W. 11) had similarly disappeared from Lahore. The appellant in his anxiety to establish contact with him picked up a quarrel with his brother Aftab Ahmad with the result that on 28th June 1964, Garhi Shahu Police had to send up both of them under section 107/151, Cr. P. C. as clearly established by a copy of the relevant report Exh. P. W. 14/1 recorded and proved by S. I. Muhammad Sadiq (P. W. 1), and further supported by Aftab Ahmad (P. W. 12) himself. From this, it appears, that the appellant insisted on knowing from Aftab Ahmad (P. W. 12) the whereabouts of Ghafur on the pretext that the latter owed him Rs. 200. However, on his inability to give him his address, the appellant caught hold of his neck, pulled his shirt which got torn and threatened to‑‑kill him. Some passers by intervened and separated them. The appellant threatened Aftab Ahmad (P. W. 12) with dire consequences. It was on his report at the Police .Post that both ‑were sent up under section 107/151, Cr. P. C. These proceedings were still pending in the Court when on 18th September 1965, between 5/6 p.m. during the hestic days of the September War, the appellant called at the quarter of Fazal Elahi deceased in Ihata Karam Din of Garhi Sbahu locality shown at point 7 in the site plan Exh. P. K. and shouted "come out Ghafurey‑you catamite". At the time Ghafoor happened to be away, having gone to an oven for getting baked some loaves of bread. In response to the call, however, Fazal Elahi deceased came out and told the appellant that Ghafur had gone to the oven and would return soon. Presumably, not being satisfied with the reply, the appellant started abusing Fazal Elahi who tried to pacify him and both started walking towards the neighbouring shop of Ghulam Hussain (P. W. 10) shown at point 5 in the site plan Exh. P. K. followed by Muhammad Anwar complainant (P. W. 7) brother of Fazal Elahi deceased, who also happened to be present in the house. The appellant became violent with the result that after an exchange of abuses he grappled with the deceased. The appellant then whipped out knife Exh. P. 1, and gave two blows with it in the abdomen of Fazal Elahi deceased. In an attempt to apprehend him, Muhammad Anwar complainant was also given a knife blow on the back of the left thumb. He, however, burled a brick‑bat at the appellant, which hit him on the head, but he ran towards the graveyard; in the north, shown at point No. 6 in the site plan Exh. P. K. He was, however, given a chase by Muhammad Sharif (P. W. 8) and Sarfraz (P. W. 9), who incidentally, happened to be present at the shop of Ghulam Hussain, where they were all listening to the broadcast of war news bulletin. They succeeded in apprehending him at a distance of about 150 karams from the spot when Muhammad Sharif (P. W. 8) snatched the knife from his hand and both. brought him back to the shop of Ghulam Hussain (P. W. 10). In the meantime, Muhammad Anwar complainant, had removed Fazal Elahi deceased to Ganga Ram Hospital in a precarious condition in the car of a motorist passing‑by, who volunteered to give them a lift. Having got Fazal Elahi admitted to the hospital, Anwar complainant went to the Police Post Garhi Shahu, which lay at a distance of 100 yards only and lodged the report Exh. P. F. with S. I. Iqbal Qamar (P. W. 15) under section 307, P. P. C. Although this statement was sent to Naulakha Police Station for the formal registration of the case, which has been referred to in the judgment as F. I. R. Exh. P. F./1, yet it appears that owing to inadvertence the formal F. I. R. was not got duly proved and exhibited. Having recorded the statement of Muhammad Anwar (P. W. 7) S. I. Iqbal Qamar (P. W. 15) sent F. C. Muhammad Yunus to the spot and himself accompanied Muhammad Anwar to Ganga Ram Hospital and inquired from the doctor ride Exh. P. Q. whether Fazal Elahi was in a fit condition to make a statement. Exh. P. Q/1 is the doctor's reply in the negative. The S. I. then visited the place of occurrence, at about 11‑45 a.m. when in the meantime, the appellant who had been kept at the shop of Ghulam Hussain (P. W. 10) was arrested by F. C. Muhammad Yunus. On the Sub-Inspector's arrival at the spot, Muhammad Sharif (P. W. 8) produced before him the blood stained knife Exh. P. 1 in the presence of the appellant, who prepared its sketch Exh. P. R. and took it into possession vide Memo. Exh. P. A. He also got removed from the appellants person his blood‑stained shirt Exh. P. 2 and took it into possession vide Memo. Exh. P. B. The two recovery Memos. were attested by Muhammad Sharif (P. W. 8), Malik Sarfraz (P. W. 9) and Ghulam Hussain (P. W. 10). There seems to be some confusion in regard to the dates of the preparation of Exh. P. A. and P. B. In the printed record the former is dated the 18th, while the latter is dated the 19th, whereas in the original record both the Memos. bear 19th of September 1965, as the date of preparation. Although the recoveries were made by the Sub‑Inspector soon after his arrival, the obvious explanation for giving the 19th of September 1965, as' 'the date of the preparation is that after mid‑night the date had changed. On the next morning, the Sub‑Inspector took blood‑stained earth from the spot vide Memo. Exh. P. C. attested by the same set of witnesses. The blood‑stained knife Exh. P. I, the appellant's shirt Exh. P. 2 and blood‑stained earth removed from the spot on being sent to the Chemical Examiner were found to be stained with blood vide report Exh. P. O. The Serologist's report Exh. P.W. revealed that scrapings from the knife were disintegrated while the cutting from the shirt and the earth were found to be stained with human blood.
3. Fazal Elahi deceased collapsed on the morning of 20th September 1965, at about 7‑20 a. m. and expired in the Hospital, as a result of the first injury which had penetrated into the abdomen with a protrusion of the omentum, the second injury near the umblicus being only skin deep. On learning about his death, the Sub‑Inspector visited the hospital, prepared the inquest report Exh. P. H, and injury statement Exh, P. G. and took into possession his blood‑stained clothes, shirt Exh. P. 3, and pant Exh. P. 4, vide Memo. Exh. P. J. The dead body of the deceased was sent to the mortuary for post‑mortem examination which was performed by Doctor Nasib R. Awan (P. W. 6), who on external examination found a stab wound 9' along with eleven stitches on the left side of the abdomen, and on dissection found that the peritorium and the small intestines were stitched, the former containing blood and fluid. The cause of death, in his opinion was shock and haemorrhage. Probable time between the injury and death and between death and post‑mortem examination: was 36 hours. Exh. P. M. was the true carbon copy ‑of his report.
Earlier, on 19th September 1965, at 4‑30 p. m. the same doctor had examined Muhammad Anwar complainant and found a superficial incised wound 1/6" x 1/6" on the back of his left thumb. The injury was declared simple and was stated to have been caused by a sharp‑edged weapon within 24 hours. Exh. P, L. is the medico‑legal report in this behalf. Doctor Abdul Wahid who appeared as P. W. y before the Committing Magistrate and whose statement along with that of Dr. Hamida Akhtar was transferred to the file of the learned Additional Sessions Judge under section 509, Cr. P. C. had examined the appellant on 19th September 1965 at about 5‑45 p. m. and found two abrasions one of which was 1" x 1/8" on the right side of head and three inches above the right ear and the other 1" x " x 1" below the right knee. Both were declared simple and were stated to have been caused with blunt weapon, within 12 hours vide report Exh. P. E.
4. It would be significant to observe that when examined (n the course of the inquiry, the appellant denied having carnal relations with Ghafur, but admitted having known Abdul Ghafur and having repaired to the house of the deceased in his search on 18th September 1965. Denying the allegations of having killed Fazal Elahi deceased by giving injuries with his knife, he answered as follows:‑
"No. I did not inflict any injury to Fazal Elahi. Before my arrival Muhammad Anwar and Fazal Elahi deceased were fighting with each other and it was Muhammad Anwar who gave blows to Fazal Elahi deceased."
In answer to the question that Muhammad Anwar complainant was also injured at his hands in the course of intervention between the appellant and the deceased, the appellant stated that he snatched the knife from the hand of Anwar and in that process the latter received injuries. In answer to the question whether knife Exh. P. 1, belonged to him and was recovered from his possession at the spot, he answered as follows:‑‑
"The knife does not belong to me.. It was, however, recovered by Muhammad Sharif P. W. at the spot. Actually I had snatched the knife from Muhammad Anwar P. W."
He admitted having been detained at the spot by Muhammad Sharif P. W. and others and having been handed saver to the police. While pleading his innocence, in answer to the question as to why this case was brought against him, he answered as follows:‑
"I had friendly relations with Abdul Ghafoor. Muhammad Anwar P. W. was asked by Fazal Elahi deceased to forbid Abdul Ghafoor to continue relations with me but I did not discontinue the relations despite of the fact. Abdul Ghafoor talked to me about the matter. I have been falsely implicated by Muhammad Anwar."
At the trial, however, he completely went back on his statement before the Committing Magistrate, denied almost every thing including the possession of the knife Exh. P. 1, shirt Exh, P. 2, as also the alleged apprehension by Sharif and Sarfraz P. Ws, near the spot and his subsequent detention. While reiterating his innocence he stated as follows:‑‑
"I had friendship with Abdul Ghafoor P. W., but I have never ha illicit relations with him, His relatives used to forbid him from associating with me. The case has been set up against me on account of enmity."
He produced no evidence in defence. In his supplementary statement while explaining the injuries on his person he stated that five or six days prior to the occurrence he had sustained these injuries in the course of a fight with Anwar P: W. in the bazar. Of course both before the Committing Magistrate as well as the trial Court he had to admit that he and Aftab P. W. were sent up by the police under section 107/151, Cr. P. C. While admitting his quarrel before the Committing Magistrate resulting in these proceedings he denied the same before the trial Court.
5. After having narrated the facts of the case, the learned Additional Sessions Judge in paragraph 6 of his judgment detailed the reasons for placing reliance on the prosecution version resulting in an order of the appellant's conviction. Reference was made in particular to the disinterestedness of the witnesses, the improbability of false substitution in a single accused case like this, hollowness of the defence version and the appellant's own incriminating admissions before the Committing. Magistrate from which he resiled apt the trial.
6. The learned counsel for the appellant raised the following contentions before us:
(1) That there was considerable delay of more than stn hour in the lodging of the first information report at the police post which stood at a short distance of about 100 yards from the place of occurrence and at any rate no formal F. I. R. in terms of section 154, Cr. P. C. was available in the case, and as such the statement Exh. P. F. of Muhammad Anwar complainant remained unproved:
(2) that by making a supplementary statement Exh. D. A. on 19th September 1965, Muhammad Anwar complainant had made considerable improvements upon his earlier statement Exh. P. F. resulting in the emergence of an altogether new version, with the change of venue of occurrence, in introduction of two more eye‑witnesses and the mention of an injury to the appellant etc, as a consequence of which his statement lost all credibility;
(3) that likewise the statement of Muhammad Sharif (P. W. 8) the solitary witness mentioned in Exh. P. F. contained considerable improvements and as such was worthy of no credit;
(4) that owing to the non‑mention of Ghulam Hussain and Sarfraz P. W. in the first information report Exh. P. F. no reliance could be placed on the statement of these two P. Ws;
(5) that the possibility of the case falling within the purview of Exception 2 or in the alternative Exception 4 of section 300, P, P. C. not be ruled out; and
(6) that in any case, the sentence of death was not warranted in the circumstances of the case.
7. We now proceed to consider these contentions seriatim. In so far as the delay in the lodging of the first information report is concerned, having regard to the prevalent war-conditions in those days with the continuing beem of guns all around and frequent dog‑fights in the air coupled with the regular imposition of dusk to dawn curfew, the delay in this case loses its significance, It may be observed that it is not delay per se in all cases which would give rise to an adverse presumption against the prosecution, but delay in the particular circumstances of a case, coupled with possibilities of fabrication or exaggerations of facts by conference and consultation that would tend to militate against the prosecution. Notwith standing the fact that the Police Post Garhi Shahu stood only at a distance of 100 yards from the place of occurrence we are of the considered opinion that the delay of about an hour or so has been fully explained inasmuch as the deceased was immedi ately removed by the complainant to the hospital whose safety was of the foremost importance and after having got him admitted in the first instance. Muhammad Anwar then repaired to the police post without appreciable delay, regards the second limb of this argument, that in the absence of a formal proof of the F. I. R. the case should be treated as one without it. It may be observed that the statement of Muhammad Anwar Exh. (P. F.) recorded by S. I. Iqbal Qamar (P. W. 15) fulfils all the legal requirements of a F. I. R. as provided in section 154, Cr, P. C. The section reads as follows:‑
"Every information relating to the commission of a cognizable offence if given orally to an officer incharge of a police‑station shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf:"
From the analysis of the section, it is clear that in order to qualify itself as a first information report, it should fulfil they following requirements:
(i) It should be an information relating to the commission of a cognizable offence;
(ii) if given orally to an officer‑in‑charge of a police station it should be reduced to writing by him or under his direction;
(iii) having been thus reduced to writing it should be read over to the informant;
(iv) it should be signed by the informant, giving the informa tion; and
(v) its substance should be entered in a book kept by the officer‑in‑charge of the police station in the prescribed form.
It can be stated without fear of contradiction that all the aforesaid legal requirements were fulfilled in the instant case. The only flaw that has crept in owing to inadvertence on the part of the learned trial Judge is that the formal F. I. R. drawn on the basis of Exh. P. F. was not duly proved. This omission is hardly of any consequence and nothing would really turn upon it, inasmuch as it did not affect the appellant's right to confront with it the maker of this report for purposes of contradictions. Even otherwise, it is well‑settled that the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation and being possessed by such knowledge through informal intelligence the police can undertake an investigations of its own motion without drawing up a formal first information report. This view is based on Emperor v. Khawaja Nazir Ahmad (A I R 1945 P C 18) and was relied upon in Bashir Saigal v. State (P L D 1964 Lah. 148). The question was again considered by one of us (M. Jamil Asghar, J. in a recent judgment reported in 1968 P. Cr. L. J. 720. The contention has, therefore, no force and is overruled.
8. (i) The factual correctness of the contention relating to improvements in the supplementary statement Exh. D. A. cannot be denied. No doubt this statement strongly suggests a change in the venue of the occurrence from in front of the house of the deceased, as originally stated in Exh. P. F. to the neighbourhood of a shop of Ghulam Hussain (P. W. 10) as stated in Exh. D. A. Again the names of Ghulam Hussain (P. W. 10) and Sarfraz (P. W. 9) were introduced in Exh. D. A for the first time an eye‑witness of the occurrence. Similarly in Exh. P. F. no part was attributed to himself by the complainant as disclosed in Exh. P. F. that he hit the appellant with a brick‑bat in self‑defence. Lastly it is for the first time that a reference was made in Exh. D. A. to proceedings under section 107/151, Cr. P. C. initiated by the police against the appellant and Aftab Ahmad (P. W. 12).
(ii) It cannot be gainsaid either that Muhammad Anwar appearing as P. W. 7 at the trial had made some improvements upon his two police statements taken together. Elaborating them he deposed that the appellant and the deceased began walking towards the shop of Karam Din. Earlier he had attributed only one blow to the appellant, but now he specifically referred to two blows, obviously with a view to bring it in conformity with the medical evidence. Again, he introduced for the first time in his attempt to apprehend the appellant and having thus sustained an injury on the back of is left thumb.
(iii) It cannot be denied either that the two police statements of the complainant and his statement at the trial do contain some discrepancies. From his police statements, it appears that almost immediately after the occurrence when some people had gone in pursuit of the appellant, Muhammad Anwar complainant removed Fazal Elahi deceased to the hospital in an injured state, in the car of one Mian Abdul Sammad a resident of 88‑C Mayo Road, Lahore. But at the trial he clearly gave an impression that the pursuers had brought back the appellant to the spot while he was still at the spot and that Sarfraz (P. W. 9) was holding the blood stained knife Exh. P. 1 in his hand, which was produced by Muhammad Sharif before the police with a claim to have himself snatched it from the appellant.
9. Having carefully considered the above facts, namely, the recording of the supplementary statements of the complainant, the improvements upon his police statements at the trial and the discrepancies, we are of the considered opinion that they are all capable of reasonable explanation and do not warrant the rejection of the testimony of this most important witness in the case. As stated earlier in those days of war, towards the commencement of curfew, people were in a rather agitated state of mind if not actually panicky. Suddenly confronted with, a critical situation involving serious apprehension to the life of his brother, which proved only too true, the complainant would be naturally quite nervous and as such having got his brother admitted in the hospital almost on point of death, he could not be expected to conduct himself in a calm and collected manner. No wonder, therefore, that he forgot to mention the names of Ghulam Hussain and Sarfraz P. Ws. which were subsequently supplied by him in Exh. D. A. The so‑called change in the venue of occurrence in the proximity of the shop of Ghulam Hussain (P. W. 10) is also immaterial inas much as the place of occurrence stands established beyond doubt by the eloquent fact of the recovery of the ‑blood‑stained earth regarding which not a single question was put to the Sub‑Inspector. This coupled with the consistent statements of the P. Ws. leaves one in no manner of doubt that contrary to the impression conveyed by Exh. P. F. the occurrence did not take place near the house of the deceased, but near the shop of Ghulam Hussain (P. W. 10). It would also be pertinent to point out in this, context that the omission of their names in the first information,) report could not belie the claim of the other P. Ws. to be the D eye‑witnesses of the occurrence, if their presence would other,) wise be spelt out from the relevant circumstances. Siraj Din: v. Kala (P L D 1964 S C 26) may be cited as an authority in point: Considerable support is lent by the appellant's own admission before the Committing Magistrate to establish the fact that the P. Ws. had detained him at the spot and had later handed him over to the police. Another circumstance which further goes to establish the presence of these witnesses at the spot at the relevant time is the fact that on his arrival the Sub -Inspector found them present at the spot and recorded their statements without delay. Further, they also attested the relevant recovery Memos. Exhs. P. A. and P. B. relating to the recoveries of knife Exh. P. 1. and blood‑stained shirt of the appellant Exh. P. 2. It thus stands proved beyond doubt that the appellant had already been arrested by F. C. Muhammad Yunus at the Shop of Ghulam Hussain where he was kept in detention when the Sub‑Inspector reached there. These facts coupled with the consistent and natural account of the occurrence given by these P. Ws. leaves us in no manner of doubt that they are witnesses of truth who had described only what they had actually seen. Again, the reference to proceedings under section 107/151, Cr. P. C. though introduced by the complainant for the first time in his supplementary statement Exh. D. A. stands established by documentary evidence available in the form of Exh. P. W. 14/1 supported by the testimony of S.I. Muhammad Sadiq (P. W. 1), Aftab Ahmad (P. W. 12) besides the admission of the appellant himself. An omission to make a reference to this in Exh. P. F. was, therefore, immaterial.
10. Coming now to the so‑called discrepancies in the statement of the complainant, the correct position seems to be that immediately after the occurrence he removed his brother to the hospital and it was in his absence that the appellant was apprehended by Muhammad Sharif and Sarfraz P. Ws. who brought him back to the spot where he was handed over to the police. His statement at the trial that he was brought back to the spot, while he was still there, and that blood‑stained knife Exh. P. I was in the hand of Sarfraz P. W. contrary to the assertion of Muhammad Sharif that it was in the latter's hand, is nothing but a lapse of memory on his part which would not justify an adverse inference as to his credibility, warranting total rejection of his testimony inasmuch as, the statements of Muhammad Sharif, Sarfraz and‑‑Ghulam Hussain are consistent on this point and do not support him.
11. In view of the above findings, the contention based on the so‑called improvements in the statement of Muhammad Sharif also loses much of its force. This witness is an absolutely disinterested witness and has successfully stood up to cross‑examination without having been shaken in the least. Notwithstanding the so‑called improvements upon his statement before the Committing Magistrate, the over‑all impression that one gathers from his testimony is that he was not only present at the spot, but played an important role in apprehending the appellant after a hot pursuit and over‑powered him. The account given by him has undoubtedly a ring of truth and the learned trial Judge had rightly placed reliance on his testimony. Likewise we see no reason to doubt the veracity of Ghulam Hussain and Sarfraz P. Ws. who appear to be quite natural witnesses and whose presence at the spot cannot be seriously disputed. It is common knowledge that in those days people would usually gather in a shop where a transistor‑radio would be available in order to have a thrill of the war songs or to listen to bulletins of war‑news intermittently broadcast throughout.
12. The contention relating to the possibility of the appellant's case falling within Exception 2 relating to the right of private defence or in the alternative Exception 4 dealing with a case of a sudden and unpremeditated quarrel is patently devoid of force. From the facts on the record the impression that one gathers about the appellant is that the allegations against him of having forcibly subjected Abdul Ghafur P, W. to carnal intercourse are not without basis. No appears to be a man of an aggressive nature as borne out by proceedings under section 107/151, Cr. P. C. against him. Before the Committing Magistrate he admitted his having visited the house of the deceased at the relevant time with a view to contact Ghafoor with whom he never denied his friendship, even at the trial, although he had materially resiled from his statement before the Committing Magistrate. His insistence on knowing about the whereabouts of Abdul Ghafur, and having flared up on the deceased's inability to make Ghafur readily available to him, in the background of the case quite stands to reason. He took the initiative, picked up a quarrel, whipped out a clasp knife with which he had gone armed and inflicted two blows on the deceased, one of which proved fatal. He even inflicted an injury on the hand of the complainant. There is not an iota to suggest, therefore, that by any stretch of imagination could his case be brought within the purview of the second or fourth Exception to section 300, P. P. C. The contention, therefore, appears to be simply absurd and is not worthy of a moment's consideration.
13. Likewise, the plea for the award of lesser penalty of transportation is devoid of substance, there being no mitigating circumstances to justify the same. We are clearly of the view, that the appellant merited the extreme penalty of death which was rightly awarded to him by the learned Additional Sessions Judge.
In consequence the appeal fails and is hereby dismissed. The sentence of death is accordingly confirmed.
14. Before parting with this case, however, we could like to make one or two observations. In the earlier part of the judgment we have already referred to an omission on the part of the learned Additional Sessions Judge to get formally proved and exhibited the F. I. R. to which nevertheless, a reference was made in the judgment as "the formal F. I. R. Exh. P, F./1". Again the sketch of the knife Exh. P. R. and application for remand Exh. D. C. though duly brought on the record and mentioned in the judgment were neither mentioned, nor included in the list of exhibits, and still form part of the record of the Court of Inquiry Magistrate from which they should have been taken out.
Appeal dismissed.
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