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Criminal Reference No. 535 of 1955, Criminal Appeal Nos. J. 448, 450 of 1955, decided on 18th June 1956.

, S. 369‑Judgment pronounced by High Court but not dictated or signed ---Whether could be altered.

Section 369, Criminal P. C., provides that Court is not barred from altering its judgment before signing the same.

In the present case the High Court altered a judgment pronounced but not yet dictated or signed under the following circumstances The accused had been charged with an offence under section 302/34, P. P. C., but were convicted by the Sessions Judge under section 326/34, P. P. C., and sentenced to rigorous imprisonment for 7 years. The High Court pronouncing judgment on the accused's appeal and on a notice under section 439, Criminal P. C., for enhancement of sentence, altered the finding of acquittal under section 302 into conviction for the same and sentenced the accused to transportation for life. While dictating judgment, the High Court discovered that they had thus overlooked the principle laid down by the Federal Court in the case Shera v. Crown P L D 1954 F C 141. After hearing counsel again, the High Court withdrew the judgment previously pronounced and sen tenced the accused to ten years rigorous imprisonment under section 326, P. P. C., bringing the judgment into con formity with the principle of the above mentioned authority. This the High Court did after re‑examining the adequacy of the sentence in relation to the facts found by the trial judge.

Emperor v. Abdul Rehman Akramdin and another A I R 1936 Bom. 193, Mohan Singh v. Emperor A I R 31, 1944 Pat. 209 and Amodini Dasee v. Darson Ghose 13 Cr. L J 120 Rafiq v. Crown P L D 1955 F C 70 ref.

‑Oral testimony of interested witnesses ‑Independent corroboration necessary for acting upon.

Held, oral testimony of interested witnesses cannot be acted upon unless there is some other independent cor roboration of their statements implicating the accused.

‑Practice‑Admitting Single Judge may issue notice for enhancement of sentence although appeal was to be decided by Division Bench‑Criminal Procedure Code (V of 1898), S. 439.

A single judge of the High Court has power to issue notice for enhancement of sentence under section 439, Criminal P. C. He cannot, however, decide the matter singly under the Rules of the Court and the matter, therefore must go before a Division Bench.

S. Murtaza Hussain for Appellants.

Sikandar Baig S. Mirza for the State.

--‑The three appellants were committed for trial for committing, in furtherance of their common in tention, the murder of deceased Ghulam Muhammad, and causing grievous hurt with hatchets and lathi to his brother Maluk.

The learned Second Additional Sessions judge, though he found that the deceased had died as a result of the injuries in flicted by the three appellants, convicted them under section 326 read with section 34 P. P. C.,. and sentenced them to seven years rigorous imprisonment. The appellants preferred an appeal from jail. Muhammad Bakhsh. J. admitted the appeal, and issued a notice for enhancement of the sentence.

The appeal came before us. After hearing the learned advocate for the appellants and the learned Additional Advocate‑General for the State, we came to the conclusion on the evidence produced by the prosecution that a case under section 302 P. P. C., was made out against appel lants Rahim Bakhsh and Nabi Buz, only, and that appellant Kadir Bakhsh was entitled to the benefit of doubt. We accordingly pronounced judgment acquitting the appellant Kadir Bakhsh and convicting appellants Rahim Bakhsh and Nabi Bakhsh under section 302, P. P. C., and sentencing them to transportation for life. While dictating the judgment, we found to our regret that we had overlooked the principle laid down by the Federal Court in the case of Shera and six others v. Crown (P L D 1954 F C 141), in altering the finding of acquittal into one of conviction. We gave notice to the learned advocate for the appellants and the learned Additional Advocate -General.

The learned advocate for the appellants and the learned. Additional Advocate‑General for the State both contended that this Court not having signed the judg ment could alter the same in order to bring it in conformity with the principle laid down in the case of Shera. They contended that the provisions of section 369, Criminal P. C., would not apply where the Court has not signed the judgment. In support of this contention they relied upon the cases of‑---

(1) Emperor v. Abdul Rahiman Akramdin and another (A I R 1936 Born. 193);

(2) Mohan Singh v. Emperor (A I R 1944 Pat. 209) ;

(3) Amodini Dasee v. Darson Ghose (13 Cr. L J 120).

The principle laid down in these cases is that where the judg ment has not been signed, the provisions of section 369, Criminal P. C., would be no bar and the Court can alter its judgment. In fact, the wording of‑section 369, Criminal P. C. which we would like to reproduce below, is clear and doe not bar the Court from altering its judgment before signing the same. Section 369, Criminal P. C., reads as under :‑

Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court, established by Royal Charter; by the Letters Patent of. such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error.

We, therefore, withdraw our order convicting the appel lants Rahim Bakhsh and Nabi Bakhsh under section 302 Pakistan P. C., and sentencing them to transportation for life.

The facts giving rise to the present appeal and the notice for enhancement of the sentences, shortly put, are these Deceased Ghulam Muhammad, the injured Maluk and P. W. Allahwasayo had jointly cultivated a certain plot of land. This plot of land was owned by these three per sons and also the mother of appellant Rahim Bakhsh. On the 7th of October 1954, at about 12 noon, while the deceased Ghulam Muhammad, Maluk and Allahwasayo P. Ws. were cutting grass in their plot, the three appel lants came armed with hatchets and lathis and accosted Ghulam Muhammad deceased and Maluk. They told the deceased and Maluk that as they had filed false cases against them they would teach them a lesson. Rahim Bakhsh and Nabi Bakhsh gave hatchet blows to deceased Ghulam Muhammad on the head while accused Kadir Bakhsh gave lathi blows to him. After Ghulam Muhammad deceased fell down, they inflicted injuries on P. W. Maluk with hatchets and lathis. The incident was Witnessed by P. W. Allahwasayo who is said to have been present all the time on the land, Mst. Baharan, the mother of the deceased Ghulam Muhammad: who also had come on hearing cries and Imam Bakhsh Dayo.

The F. I. R. was lodged by Fakir Bakhsh at the Kumbhra Police outpost which was at a distance of about a mile from the vardat, at about 12‑30 p.m. The appellants were arrested by H. C. Ghulam Hussain. The head constable secured the blood stained loin‑cloth from the person of Nabi Bakhsh, while blood stained shirt and loin‑cloth were secured from the person of appellant Rahim Bakhsh. Nabi Bakhsh had also produced a blood stained hatchet before the Head Constable on the same day. It may be mentioned that nothing incrimina ting was recovered from the possession of Kadir Bakhsh appellant.

A counter report was lodged by appellant Rahim Bakhsh on 8th October 1954, against deceased Ghulam Muhammad and Maluk. Appellant Rahim Bakhsh, as will appear from his statement before the Sessions Judge, admitted his presence at the scene of offence. He stated that he asked for his share in the plot which was cultivated by the deceased, where upon the deceased and Maluk attacked him and he became uncon scious. The appellant Nabi Bakhsh has adopted the same statement as of Rahim Bakhsh. They admitted that the blood stained clothes belonged to them. Appellant Rahim Bakhsh stated, while admitting the clothes as his, that probably in the fight these clothes became stained with blood. The appellant Nabi Bakhsh stated

"The loin‑cloth in Court is mine, and it was secured by the police. In trying to rescue accused Rahim Bakhsh, it pro bably got stained with blood."

Appellant Kadir Bakhsh denied having committed the crime and stated that he had been falsely implicated as he was a cousin of accused Rahim Bakhsh. The case of Kadir Bakhsh must be distinguished from that of the other two appellants so far as Kadir Bakhsh appellant is concerned, the evidence against him is the oral testimony of interested witnesses, viz., Maluk who had been injured, Allahwasayo who had a share in the plot, Mst. Baharan the mother of the deceased and Imam Bakhsh who admittedly plied the cart of Allahwasayo on hire. The prosecution has also relied on the evidence of Ghous Bakhsh, the Nekmard of the village. It is said that the complainant Fakir Bakhsh had disclosed the names of the appellants to him as the persons who had inflicted injuries on the deceased. Fakir Bakhsh himself had no first hand information. He had been given the names of the appellants by P. W. Allahwasayo. The evidence of Ghous Bakhsh, therefore, cannot be of much assistance. In this connection, the conclusion of the learned judge may be reproduced.

"The evidence of the four eye‑witnesses together with the testimony of complainant Fakir Bakhsh and P. W. Ghous Bakhsh, the securing of the blood stained clothes from accused Rahim Bakhsh and Nabi Bakhsh, the production of a blood stained hatchet by accused Nabi Bakhsh, the counter report filed by accused Rahim Bakhsh and the admission made by accused, Rahim Bakhsh in his statement before this Court, clearly establish the fact that the three accused present before the Court are responsible for the injuries resulting in the death of deceased Ghulam Muhammad and grievous hurt to P. W. Maluk.".

From the above it would appear that so far as Kadir Bakhsh appellant is concerned, the learned Judge has relied upon the testimony of the eye‑witnesses, the testimony of Fakir Bakhsh and Ghous Bakhsh who are not eye‑witnesses, and the counter report filed by appellant Rahim Bakhsh. So far as the oral testimony is concerned, we find that the wit nesses are interested and their testimony cannot be acted upon unless there is some other independent corroboration of their statement implicating the appellant Kadir Bakhsh. The statement of Fakir Bakhsh has no direct bearing on the case, as he had been supplied the names of the appellants by his father Allahwasayo P. W. Ghous Bakhsh also cannot support the prosecution case as he had been given the names of the appellants by Fakir Bakhsh. The appellant Kadir Bakhsh has denied his presence at the scene of offence. He has stated that he had been falsely implicated in, the case because he was a cousin of Rahim Bakhsh. It is surprising that the learned Additional Sessions judge has not drawn the attention of the appellant to that part of the counter report which would indicate his presence at the scene of offence. If the learned Judge wanted to rely upon the counter report lodged by Rahim Bakhsh he should have directed the attention of the appellant Kadir Bakhsh to that fact in his examination under section 342, Criminal P. C. In the absence of any question put to the appellant under section 342, Criminal P. C., no such inference about the presence of the appellant Kadir Bakhsh at the scene of offence can be drawn. The case of appellant Kadir Bakhsh is not free from doubt. We would, therefore, acquit him.

So far as the appellants Rahim Bakhsh and Nabi Bakhsh are concerned, their case stands on a different footing. They admit their presence at the scene of offence. Blood stained clothes were recovered from their persons. Appellant Nabi Bakhsh had also produced a blood stained hatchet. In the counter report filed by appellant Rahim Bakhsh, he admitted his presence at the scene of offence. These circumstances would corroborate the oral testimony of the four eyewitnesses, namely, Maluk injured, Mst. Baharan, Allahwasayo and Imam Bakhsh. Their names were mentioned in the first report h J which was lodged by Fakir Bakhsh within an hour of the incident, the distance from the scene of offence to the police outpost being three miles. The eye‑witnesses are supported by Ghous Bakhsh P. W. who is the Nekmard of the village. Complainant Fakir Bakhsh, before proceeding to lodge the report, had disclosed the names of the appellants to Ghous Bakhsh P. W.

The learned advocate for the appellants has failed to show any substantial ground on which the testimony of the eye witnesses could be discarded. The evidence of all the wit nesses is definite on the point how the appellants Rahim Bakhsh and Nabi Bakhsh came armed with hatchets and abused Ghulam Muhammad and his brother Maluk for having filed false cases against them, and that thereafter they inflic ted injuries on the deceased Ghulam Muhammad and Maluk. We do not see any reason to differ from the learned judge in the appreciation of the evidence of these witnesses so far as the appellants Rahim Bakhsh and Nabi Bakhsh are con cerned.

The next piece of evidence against appellants Rahim Bakhsh and Nabi Bakhsh is the circumstantial evidence of the recovery of the blood stained clothes from the persons of Rahim Bakhsh and Nabi Bakhsh and the production of the blood stained hatchet by Nabi Bakhsh. The Chemical Ex aminer detected human blood on these articles. The appellants did not deny the recovery of the blood stained clothes from their persons. They tried to explain the presence of blood by stating that they had received blood in the fight with the deceased and others.

The appellant Rahim Bakhsh admitted his presence at the scene of offence in the counter report that he had filed with the police. So far as the appellant Nabi Bakhsh is concerned, he stated that his statement is the same as that of Rahim Bakhsh, and further stated

"The loin cloth in Court is mine, and it was secured by the police. In trying to rescue accused Rahim Bakhsh it probably got stained with blood."

Considering the ocular and circumstantial evidence against the appellants Rahim Bakhsh and Nabi Bakhsh we have no doubt that a case under section 326, P. P. C., read with section 34, P. P. C., is made out. The common intention of the appellants cannot be doubted. They were both armed with hatchets and had inflicted injuries on the deceased Ghulam Muhammad and injured Maluk. There can be no doubt that their common intention was to cause grievous hurt to Ghulam Muhammad and Maluk. In fact it has not been contended by the learned advocate for the appellants that no such intention could be inferred from the acts of the appellants.

So far as the question of sentence is concerned, the learned Second Additional Sessions Judge, Sukkur has not given any reason why he has awarded only a sentence of seven years R I. and not the maximum provided under The section 326, P‑I . C. The maximum sentence provided under section 326, P. P. C., is the transportation for life or a sentence extending upto ten years R. I. We are conscious of the principle laid down by their Lordships of the Federal Court in the case of Rafique v. The Crown (P L D 1955 F C 70), that while maintaining the sentence for the minor offence we cannot settle the quantum of the sentence for the major offence. We have therefore, to re‑examine the adequacy of the sentence in relation to the facts relied upon by the learned Judge. On the finding of the learned judge it would appear that the deceased Ghulam Muhammad had received one incised injury, one contusion and two abrasions. The incised injuries had caused extensive internal damage and the post‑mortem revealed that the vault of the skull of the deceased was broken, the scalp was ecchymosed, both the parietals were cut, that right parieto‑frontal and right parieto -occipital sutures were opened, the dura‑mater was cut and the cerebrum was lacerated, congested and cut. According to the Doctor, death was due to shock and haemorrhage consequent upon the laceration of the brain substance and fracture of the skull bones resulting from the hatchet injury on the back of the head. So far as Maluk is concerned, he had received in all seven injuries, mostly contusions. The injury on the forearm of Maluk involved fracture of the left ulna. Besides the fact that Ghulam Muhammad and Maluk both had received serious injuries, there is nothing on the record to show that the appellants had any reasonable grievance against the deceased Ghulam Muhammad or P.W. Maluk. The appellants took an undue advantage of the deceased Ghulam Muhammad and Maluk being unarmed. The deceased Ghulam Muhammad and Maluk, as would appear from the prosecution evidence, were taken by surprise. The learned advocate for the appellants however contended that a single judge could not issue notice for enhancement of the sentence, and that this Court had no power to enhance the sentence of the appellants. We do not find any substance in this contention. The provisions of section 439, Criminal P. C., do empower the Court to enhance the sentence under certain circumstances. In this case, the appellants having filed an appeal, the Single judge of this Court had power to issue notice for enhancement of the sentence. He could not, however, decide the matter singly under the Rules of this Court and the matter, therefore, had to come before us.

For the reasons given above, while maintaining the con viction of the appellants Rahim Bakhsh and Nabi Bakhsh under section 326, P. P. C., we would sentence them to ten years rigorous imprisonment each, and dismiss their appeal. The appeal of Kadir Bux is allowed and the conviction and the sentence passed against him is set aside.

K. B. A./ A. H. Appeal dismissed : Sentence enhanced.

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