Harnam Singh, J.
1. Gurdial Singh, Jat, aged 35 years, has been, found guilty of the murder of Pritam Singh and convicted under Ss, 308/84, Penal Code, and sentenced to transportation for life by the Sessions Judge, Ferozepore. Gurdial Singh has come up to this Court in appeal through Mr. Tek Chand and S. S. Jhanda Singh has appeared for the Crown.
2. The prosecution case was that on 24th April 1947 at about sunrise the said Pritam Singh along with his siri Gurdial Singh mazhbi went to his field Leaving Gurdial Singh mazhbi near his cArticle Pritam Singh went to case him-self. Suddenly, Gurdial Singh accused, and Harchand Singh and Ajaib Singh abaconders, emerged from the bushes armed with spears and gandasas. Gurdial Singh accused and Harchand Singh were armed with spears while Ajaib Singh had a gandasa. They attacked Pritam Singh with their respective weapons and inflicted upon him a number of injuries. Gurdial Singh mazhbi rushed to the rescue of Pritam Singh and received injuries in an attempt to save him. Gurdial Singh Jat son of Ganda Singh, a cousin of Prttarn Singh deceased, was present in an adjoining field owned by him and witnessed the occurrence. Gurdial Singh rnazhbi went to the village and informed Eaj Singh P.W. 4, brother of Pritam Singh deceased, of the occurrence and returned with a cot, Pritam Singh was removed to the hospital at Matbana where it is stated that he made a dying declaration which was reoor-ded by Rna Khawab Ahmad Khan, Naib Tehsildar some time between 9-15 and 10-30 a. m. Pritam Singh died in the hospital at 10-30 a. m. On that date.
3. The post mortem examination of Pritam Singh deceased was performed by Doctor Dharm Pal, Assistant Surgeon, Pazlika, who found eight contusions, two incised wounds, eight punctured wounds, and four fractures on various parts of the body of Pritam Singh deoeased. In the opinion of the Doctor death was due to shock as a result of multiple fractures and other injuries and that the injuries collectively were sufficient in the ordinary course of nature to cause death.
4. The prosecution examined evidence of motive at the trial and produced Gurdial Singh p. W. as an eye-witness of the occurrence. The dying declaration of Pritam Singh deceased was also proved at the trial.
5. Mr. Tek Ohand, learned Counsel for the appellant, urges that the dying declaration Ex, p. B. is cot admissible in evidence. The objection is that there was no evidence on the record that the presence of Rana Khawab Ahmad Khan could not be obtained without an amount of delay or expense which under the circumstances of the case the Court considered unreasonable and that, therefore, evidence of Bana Kahwab Ahmad Khan given in the Court of the Committing Magistrate was not: relevant for the purpose of proving at the trial the truth of the facts which it stated. In this connection, he relied upon a number of authorities including Gulam Haider v. Emperor A.I.R. (16) 1929 Lah. 642 : (80 or. L. a. 623); Indar v. Emperor, A, I. R. (17) 1930 Lah. 1041 : (32 Or. L. J. 256), Kala v. Emperor A.I.R. (31) 1944 Lah. 20C : 45 Cr. L.J. 660 and ChaincJial Singh v. Empe. ror A.I.R. (83) 1946 P. C. 1 : (I. L. R. (1945) Lah. 451). In Chanclial Singh v. Emperor, A. I.R. (38) 1946 P.C. 1 : (I.L.B. (1945) Lah. 451), their Lordships of the Privy Council held:
When evidenoa given by the witness in a judioial proceeding is sought to be used under Section 33 in a subsequent judicial proceeding or in a later stage of the same judioial proceeding on the ground that the witness IB incapable of giving evidence that fact must be proved strictly.
In that case a summons was served on Lachhman Das ordering him to appear and give evidence at the trial. This summons was served on him by a police officer, Ganda Singh. Laobhman Das wrote on the summons:
Sir, I am seriously ill and am unable to attend the Court. My statement may kindly be recorded at my place of residence.
Lachbman Das did not appear at the trial and the officer was called and his evidence was as follows:
I was entrusted with the summons issued for the service of Laohhmau Das. I found him ill and unable to move from his house. He is suffering from tubetculsis . I got a report to that effeot made by the Patwari on the summons.
The Public Prosecutor, on that evidence, applied to have his statement made before the Magistrate transferred to the sessions file and read wader Section 33, Evidence Act. On those facts, their Lordships of the Privy Council held that the conditions requisite for admitting a former deposition under 8. 32, Evidence Act, had not been satisfied.
6. The facts in Qulam Haider v. Emperor A.I.R. (16) 1929 Lah. 642 : (30 Or. L. J. 628) were that a subpoena was issued for the appearance of Hassan Shah as a prosecution witness in the sessions trial, but, before the subpoena could be returned, the trial before the Sessions Judge commenced. The Sessions Judge, however, without waiting for the return of the said subpoena or taking any other steps, to secure the presence of Hassan Shah before the Court admitted his deposition before the committing Magistrate as evidence for the prosecution and it was held that none of the requirements of Section 33, Evidence Act, had been satisfied.
7. In Inder v. Emperor A.I.R. (17) 1980 Lab. 1041 : (32 or. L.J. 266), the Sessions Judge had transferred the statement of a witness to the record of the Sessions Court simply because the public prosecutor bad made a statement before him that the witness could nut be found according to the report of the Superintendent in charge of the criminal settlement in Bheikbupura District and the telegram received from the Deputy Commissioner, Criminal Tribes, Lahore, and on those facts it was held that the procedure was contrary to law and should not have been followed.
8. In Kala v. Emperor, A. I.R. (31) 1944 Lah. 206 : (45 cr. L.J. 660), the public proseoutor giving up Hassan Ehan as being ill, the learned Sessions Judge transferred the statement of the said Hassan Ehan to the sessions record at the-request of the defence counsel. There was no proof that Hassan Eban was in fact ill and that his presence could not be obtained without unnecessary expense or delay as laid down in Section 33, Evidence Act.
9. It would appear that in all those cases there was no evidence that the presence of the witness could not be obtained without an amount of delay or expense which under the circumstances of the case the trial Court considered to be unreasonable. In the present case, however, Hukam Chand, Foot Constable, was deputed to effect servioe upon Bana Ebawab Ahmad Ehan. Hukam Chand, Foot Constable, was examined at the trial on 12Ih January 1948 and he deposed that Bana Ebawab Ahmad Ehan bad left for Pakistan and that it was not possible to ascertain his present whereabouts. It is common knowledge that at or about that time it was not possible to obtain the attendance of witnesses from Pakistan in trials held in the East Punjab Province. The trial Court on the statement of Hukam Chand p w. found that Bana Khawab Ahmad Ehan had left for Pakistan and that his attendance could not be obtained without an amount of delay or expense which under the circumstances of the case was unreasonable and, therefore, ordered that the statement of Rana Khawab Ahmad Khan made in the Court of the Committing Magistrate be transferred to the record of the Sessions Court under Section 33, Evidence Act. That being so, I find no force in the objection that there was no justification for the transfer of the statement of Bana Khawab Ahmad Khan recorded by the Committing Ma. gestate to the record of the Sessions Court.
10. Mr. Tek Cband next urges that the statement of Pritam Singh deceased recorded by Bana Khawab Ahmad Khan was not the insissima verba of the person making it and, therefore, it was not possible to see what was the question and what was the answer, so as to flisoover how much was suggested by the exa-mining Magistrate and bow much the production of the person making the statement, Bana Khawab Ahmad Khan appeared as a witness in the committing Court and stated that on receipt of the ruqua from the police station on 24th April 1947 he went to the Nathana Hospital and there obtained the statement Ex. p. o. l of the Dootor that Pritam Singh injured was in a fit condition to make statement. The witness stated that he recorded correctly the statement Ex. P. B. of Pritam Singh son of Hardit Singh, Jat of Boohla on solemn affirmation and read it over to him and that Pritam Singh deponent admitted his statement to be correct and thumb-marked it. Bana Khawab Ahmad Khan was not cross-examined at all. At the sessions trial Baj Singh p. w. 4, stated that the statement of Pritam Singh was recorded by the Naib TehBildar in his presence. No question was put to Baj Singh P. w. 4 in cross-examination &3 to the circumstances under which the statement of Pritain Singh was recorded. That being so, I find that there is no force in this contention of the counsel for the appellant.
11. Mr. Tek Chand again urges that the statement Ex. s.-b. made by Pritam Singh deceased is wholly improbable. He bases himself on the statements of Ch. Prem Chand p. w, 15 and Baj Singh p. w. 4. Ch, Prem Chand stated that the Naib Tahsildar recorded the statement of Pritam Singh and that Pritam Singh died a few minutes later. Baj Singh p. W. 4 is proved to have stated before the Committing Magistrate that on going to the spot he found Pritam Singh lying injured and unconscious and that on the way from the spot to the village they stopped near the Gurdwara foe a short time and gave some milk to Pritam Singh because Pritam Singh had somewhat regained consciousness, The counsel for the appellant urges that under those oircumstances it was not probable that Pritam Singh deceased had made a coherent and lengthy statement in a narrative form to the Naib Tahsildar as is recorded in Ex. p. B. The argument is that if Pritam Singh was unconscious at the spot he would be incapable of making the dying declaration Ex. P. B. at the hospital especially when we know that Pritam Singh survived the making of that statement a few minutes only. There is force in this contention of the learned Counsel for the appellant and I find that it would not be safe to act upon the dying declaration of Pritam Singh.
12. According to the first information report only two person witnessed the occurrence, namely Gurdial Singh mazhbi and Gurdial Singh Jat. Gurdial Singh mazhbi has not been examined at the trial though he was examined in the Court of the Committing Magistrate. Gurdial Singh Jat P. W. 3 has stated at the trial that Gurdial Singh mazhbi was not a sri of the family of the deceased at the time when evidence was being recorded in the Court of the Sessions Judge and that he had left the service of the family of the deceased after the harvest. No other suggestion was made in evidence by any other witness as to why Gurdial Singh mazhbi was not being produced at the trial. The Public Proseoutor, however, on 12th January 1948, stated that he gave up Gurdial Singh mazhbi p. w. as having been won over. The non-production of Gurdial Singh mazhbi, therefore, warrants the presumption that the evidence of Gurdial Singh mazhbi who could be and was not pro. duoed would, if produced, be unfavourable to the prosecution. It is in this background that we have to examine the testimony of Gurdial Singh p. w. 3.
13. Gurdial Singh P. W. 3 is a first cousin of Pritam Singh deceased and his statement at the trial was that he had gone to bring langas from his field which adjoined the field of Pritam Singh deceased a little before sunrise on the date of the occurrence. Ch. Prem Chand p. w. 15 went to the spot on 25th April 1947 and he has stated that there were no langas lying in the field of Gurdial Singh p. w. The statement of Gurdial Singh at the trial was that he and Gurdial Singh mazhbi were the two persons who saw the occurrence and that Gurdial Singh mazhbi tried to rescue Pritam Singh but was given a blow by Harohand Singh absconder. He has stated that he did not accompany the injured man to the hospital or to the police station and that be did not physically intervene to save his cousin Pritam Singh deceased. This conduct of the witness to say the least is wholly improbable. Gurdial Singh mazhbi who tried to rescue Pritam Singh deceased was injured but Gurdial Singh p. w. has not received any injury in the affair. That being to, it would not be safe to rely upon the testimony of Gurdial Singh p. w.
14. Looked at from another point of view it appears to ma that the case is not free from doubt, Ourdial Singh appellant and Harchand Singh and Ajaib Singh absconders according to the dying declaration were armed with spears and gandasas. As set out above the post mortem examination of Pritam Singh disclosed a number of injuries caused by a blunt weapon.
15. This leaves us with the evidence of motive which is furnished by the testimony of Raj Singh p. W. 4 to the effect that there were cross oases between Gurdev Singh and his father on one aide and Surjan Singh and others on the other side. Raj Singh has stated that Pritam Singh had appeared as a prosecution witness against Surjan Singh and others about two or three months before the occurrence and the case was still pending at the time of the murder. Again, it is stated there was a quarrel between Gurdial Singh accused and the two absconders on the one side and Pritam Singh deceased, Gurdev Singh and others on the other side about a month before the present occurrence on the occasion of a fair at Mathana where a singing party was held. Ganda Singh P. W, 5 and Jarnail Singh p, w. G had intervened and the singing party was dispersed in order to avoid any breach of peace. The accused in his statement before the Committing Magistrate had denied that he had any quarrel with Pritam Singh and Gurdev Singh on the occasion of the Mathana fair and also denied that he along with Harchand Singh and Ajaib Singh had attacked Prifcam Singh. As set out above the direct evidence as to the commission of the offence, namely, the testimony of Gurdial Singh p. w. and the dying declaration of the deceased, has broken down and for that reason it is not necessary to examine in any detail the evidence of motive for the crime.
16. For the reasons given above, I find that it is doubtful that Gurdial Singh appellant was one of the persons who attacked Pritam Singh deceased and fatally injured him. The result is that I would allow the appeal, set aside the judgment of the trial Court and direct that Gurdial Singh appellant be acquitted.
17. I agree.