Inder Dev Dua, J.
1. The appellant, Mohammad Ishaq son of Ahmed Din, aged 37 years, Muslim, Weaver of Jalalpur Jattan, District Gujrat, West Pakistan (a national of Pakistan), has been sentenced to death under Section 302, Indian Penal Code, to imprisonment for life under Section 398, Indian Penal Code, and to one year's rigorous imprisonment under Section 148, Indian Penall Code, by the learned Sessions Judge, Gurdaspur, by his judgment dated 11-8-1958. The following charges were framed against the accused:
'(1) That you on or about 17-10-1957, within the area of village Perewal did commit murder by intentionally causing the death of Foot Constable Baldev Singh of PAP Picket Metla by stabbing him with a dagger and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within the cognizance of Sessions Court;
(2) (a) That you on or about 17-10-1957, within the area of village Perewal were a member of an unlawful assembly and did in prosecution of the common object of such assembly viz. to murder Foot Constables Balilev Singh and Narinjan Singh of the PAP and rob them of their arms and immuni-tion commit the offence of rioting and at that time were armed with dagger a deadly weapon, and thereby committed an offence punishable under Section 148 of the Indian Penal Code and within the cognizance of Court of Sessions.
(b) That you on or about 17-10-1957, within the area of village Perewal in prosecution of the common object of the unlawful assembly viz.: to murder Foot Constables Baldev Singh and Narinjan Singh of the PAP and rob them of their arms and ammunition, did commit murder by intentionally causing the death of Foot Constable Baldev Singh of PAP picket Metla and thereby committed an offence punishable under Section 302 read with Section 149 of the Indian Penal Code and within the cognizance of Court of Session.
(c) That you on or about I7th' October, 1957, within the area of village Perewal in prosecution ofcommon object of the unlawful assembly vizmurder Foot. Constable 'Baldev Singh and Na-rinjan Singh of the PAP. and rob them of theiras and ammunition, did commit the murder' byentionally 'causing the death of Foot ConstableNarinjan Singh PAP picket Metla and thereby com-mitted an offence punishable under-Section 302 readthe Section 149 of the Indian Penal. Code andthin the cognizance of Court of Session.(d) That you on or about 17th October, 1957,thin the 'area of village Perewal committed da-coity and that in the commission 'of such dacoityorder was committed by 'you and you therebycommitted an offence punishable-under Sections 395/398the Indian Penal Code and within the cognizanceCourt of Session'
and he has been tried and sentenced as statedabove. The accused has filed this appeal through(in para 12 of the memo of appeal he says that is not an appeal but a mercy petition) and thecord is also before us for confirmation of the sen-nee of death. Mr. M.C. Sud has been engagedState expense' to represent the accused in thisCourt.'
2. It appears that on 17th of October 1957; '' about 6 a.m. a small police party consisting of three Punjab Armed Police Constables, Mehr Singh (P.W.), Baldey Singh and Narainjan Singh deceased, started from Mella Picket post on the Indian side of the border between Indian and West Pakis-tan towards the side of river Ravi. Before they actually started, they had been Issued One rifle and 50 rounds of cartridges each. Mehr Singh was even rifle. No. 442, Baldey Singh was given rifle No. 267 and Narinjan Singh was given rifle No. 412.
These constables after passing by the village erewal and after crossing Dhussiband and the Kacha road alongside it, entered on the narrow footpath for the purposes of going up to' the bank of river Ravi. On both sides' of this footpa'h there is a thick and wild growth of high Jungle reeds and bushes.' Before leaving Dhussiband they took some rest for about 45 minutes or an hour in the fields nearby and then proceeded on the same foot-path towards the Ravi.
When they were about 1,800 feet away fromthe left bank of the. Ravi, some persons numberingfive or more suddenly fell upon them shoutingKafars be captured and killed'. Mehr SinghP. W.) being ahead of the other two constables by8 or 10 paces, the assailants made Baldev Singhand Narinjan Singh object of their assault. Theyinflicted serious knife and dagger , blows on theseconstables who fell on the ground.
One or two assailants also tried to assault MehrSingh but he ,repulsed the attack with the butt-endof his rifle, and after running back a short distancehe took up a firing position at the assailants. Find-ing themselves in that precarious position the as-allants ran away into the thick jungle (sarkandabal) on both sides of the footpath. Mehr Singhfired some rifle shots in the jungle and after doingso he went near the other two constables whom hefound badly injured and their rifles and ammuni-tion missing.
He thereupon went to Metla Picket post to(inform the officer-in-charge of the incident. Inthe meantime Chand Ram, Head Constable, whohappened to be in-chargs of the Metla picket, post,on hearing the firing in the advanced border areahad already taken 8 armed constables' with, him andstarted towards the aforesiad footpath as ,he wasanxious to know the cause of the firing. MehrSingh (P. W.) who was going towards the picketlost from the side of the incident met Chand Ram,Head Constable, and his-party somewhere nearDhussiband and narrated to him the entire incident.
Thereupon all of them spread out in a forma'-tion and reached the site of the incident where they found Baldev Singh and Narinjan Singh dead. Chand Ram then wrote rucqqa. Exhibit P. M., and sent it to the Police Station Dera Baba Nanak, Thereafter the Thana Police also turned up and started the investigation. On the arrival of the local police some search parties went into the jungle so that they might lay their hands upon the assailants who-may possibly be hiding there.
One party with Mehr Singh (P. W.) reached near the bank) of the river Ravi when Baj Singh, one of their party-men, tried to get into the open, to peep and look round. He, however, received a bullet from the Pakistan side of the border as a result of which he died within a few hours of the receipt of the injuries. Mehr Singh (P. W.) then retreated and joined another party of searchers. They located the accused-appellant in a Nala about a mile away from the place of occurcnce.
Noticing him Mehr Singh (P. W.) at oncer shouted that' he was one of the assailants who had stabbed to death Baldev Singh constable. The accused tried to run away but Pritam Singh and others succeeded in securing him. They found him in possession of a blood-stained dagger in a cloth sheath and a bag containing parched grains They took him to the Station House Officer and produced him as one of the culprits of the crime. This happened at about 3 or 4 p.m. on 17th of October,. 1957--the day of occurrence.
3. The whole story of the incident has been narrated in a straghtforward manner by P. W 4 Mehr Singh, Constable No. 3180. PAP Picket Metla, 'an eye-witness to the whole incident. Nothing has been-shown in his cross-examination to discredit his veracity, and I have no hesitation in placing full reliance on his testimony.. The recovery of the dagger and the rifle also amply corroborates his-statement. The arrest of the accused as stated by P. W. 4 Mehr Singh is also fully corroborated by Pritam Singh, Head Constable, P. W. 5, Lachhman Singh, P. W. 6 and Bewa Singh, P. W. 7.
The evidence of these witnesses by itself is, more than enough to prove, beyond the possibility of any reasonable doubt, 'the version contained in-the First Information Report, but we have also on the record a very detailed confession made by the-accused on 28th of October 1957 before Mr. Jagat Singh, Magistrate, 1st Class, who has appeared in Court as P. W. 9. This confession, detailed as it is,; appears to me to be absolutely true; it has not been alleged even by the accused himself that he had been, compelled to make this confession as a result ' of any inducement, threat or promise.
In this confession he has given his own' antecedents and the motive for committing the crime which verges almost on waging war against the Re- . public of India. It, is creditable for the above witnesses in such provocative and trying circumstances, to have kept themselves under restraint and maintained their sense of duty, discipline, justice and1 fair play in treating the appellant (a Pakistan national) like an ordinary accused.
The accused has stated in his confession that he hailed from Jalalpur Jatan in the District of Gujrat Pakistan, that when Pakistan came into-being he was a member of the Muslim League and that, in the beginning of that year he had become a .member of the 'Khaksar party. He took permission from his mother and from Dr. Nur Mobam-mad the, husband of his father's sister's daughter,' for joining the Jehad Camp,, Lahore, opened by Alama Masharki, a- Khaksar leader.
I may mention here that the word 'Jehad' connotes a kind of religious crusade against non-Muslims. He was enrolled at Rs. 30/- per mensem and joined the Minto Park Jahad Camp at Lahore, Khaki uniform was supplied to him along with his other Khaksar comrades. He gives full details as to how three camps were opened by Alama Masharki on the borders of Gujjar Toor, Jassar, Burj Arayan, Wagha, Head Salamai, Kala Khatai and Narang Mandi. He also states about the opening of camps on the borders of Kasur etc..
He further states in his confession that about a fortnight or so previous to 28th of October 1957, he and his companions were told by one Tarak Salad that rifles were to be snatched from Indian Sepoys who roamed about with rifles on the other side of the river and the sepoys were to be killed. The accused with three persons, Muzaffar, Akbar and Mohammed Din offered themselves for the job; they were all given daggers and they (these four persons alone with Tarak) started at about 11 p.m. concealing themselves in the sarkanda bushes situated in Indian territory about 100 paces from Machan and quite close to the narrow pathway, about which a mention has already been made 'in this judgment.
Then he narrates as to how at about 8 a.m. the three constables were seen coming from the Indian Side and how they all attacked and stabbed the two Sikh constables. He admits having been injured by the Sikh constables who assaulted the accused and his companions with bayonets. On the Diwali day he also recovered the rifle from the place where they had concealed it. The injuries on the accused were found when examined by Dr. P.N. Chhabra on 18th of October, 1957.
4. In the Committing Magistrate's Court when the accused was examined his answer to every question was merely 'I will make my statement in the Court of Session'. In the Court of the Sessions Judge, however, he merely said 'No' to most of the questions but in answer to question No. 6 which relates to the circumstances in which he was arrested he replied that he had been arrested by Head Constable Pritam Singh from lorry Adda Dera Baba Nanak and that Pritam Singh had taken away from him Rs. 3,750/- when the accused was taken to Metla Picket Post.
He further replied that the danger P. J. did not belong to him but belonged to the Indian Police. He also stated that he had been given beating and then persuaded to give the rifle and the names of the other accused which he did not do as he was not aware. When questioned about his confessional statement before Mr. Jagat Singh, Magistrate, 1st Class, he denied having made any statement but admitted his thumb impression on the confession. He merely denied knowledge of what the Magistrate had written.
He did not give any explanation as to whyhe had been challaned, his only reply being 'I cannot say'. The learned Sessions Judge has as statedabove, convicted the accused under Section 302, IndianPenal Code, for causing the death of Baldev Singhand sentenced him to death under this count; underSection 390, Indian Penal Code, the Court below hassentenced him to imprisonment for life and underSection 148, Indian Penal Code, to one year's rigorousimprisonment. The accused has strangely enoughnot been convicted for the offences under charges2(c) and 2(d).
5. The learned counsel for the accused, engaged at State expense, has in the first instance submitted that the conduct of the accused was and amount to waging war against the Indian Union and therefore he being in the position of an alien enemy should have been tried by a Court Martialand not by the Court of the Sessions Judge. This contention is wholly devoid of force, it is true thatone Alama Masharki a political opportunist was reported to be trying to gather together fanatical and bigoted Muslim citizens of Pakistan and to incite and inflame their religious prejudices and sentiments in the name of 'Jehad' (religious crusade) for creating trouble on the western borders or India. The accused, according to his own confession, offered his services, at Rs. 30/- per month.
It would, however, be absurd to consider suchsilly and cowardly attacks by poor, starving 'misguided and fanatical Pakistanis as incidents of war.There is no evidence of these persons acting on behalf of or agents of the Government of Pakistan.I am sure the Government of Pakistan could nothave encouraged such activities against a friendlyneighbour State. The accused, though a foreigner,is indisputably liable, under the laws of this country,to be tried for offences committed by him in theterritory of India against the laws of the Indian Re-public and is also fully entitled to the projectionwhich our Constitution, like the Constitutions ofall civilised and democratic countries, has conferredon all persons.
Article 14 of the Constitution has guaranteed equality before the law to all persons irrespective of their nationality; Articles 20, 21 and 22 of the Constitution of India also confer certain fundamental rights on all persons who happen to be on the soil of the Indian Republic. The appellant by virtue of being in the Indian territory is enticed to and has been given full protection of the laws of this country and indeed from the records of this case I find that the appellant has had a very fair and impartial trial. But be that as it may, no objection can in my opinion, be taken against the trial of the accused in accordance with the Code of Criminal Procedure and I repel this contention.
6. Mr. Sud next submitted that the confession of the accused should not be relied upon as it was recorded within about an hour or so after he had shown his willingness to confess. There is no substance in this contention either. There is no universal mandatory rule of law that a confession recorded after about one hour or so of the willingness shown by the accused must be declared as in-admissible or untrustworthy. The question has to be decided on the facts, of each case. In the present case the accused never alleged that he had made the confession on account of any inducement, threat or promise.
His confession is a detailed one and it has obviously an intrinsic ring of truth and voluntarinessin it. He appeaes to be a misguided bigot and apoor mercenary; his religious sentiments and poorfinancial position appear to have been exploited byunscrupulous and callously selfish persons. He appeared personally in the High Court and stated insupport of his appeal that he was undoubtedly asmuggler but he did not commit the murder andthat being a poor man he had to support a numberof his family members and mercy should be shownto him.
7. On the evidence on the record, however, it is not possible for me to find beyond the possibility of doubt that the accused himself gave the fatal blows either to Baldev Singh or to Narinjan Singh, with the result that I do not find it possible to convict him of the charge under Section 302, Indian Penal Code, standing by itself. The learned Sessions Judge having not convicted the accused of charges Nos. 2(c) and 3(d) under Section 302. read with Section 149, Indian Penal Code, he must be deemed to have been acquitted of those charges the State has so far not filed any appeal against the acquittal under: these counts. I am,therefore, constrained, in the circumstancs to acquit the accused under the charge of murder under Section 302, Indian. Penal Code I however, confirm the conviction and sentence Of imprisonment for life passed under Section 396 of the Indian Penal Code and the sentence of one year's rigorous imprisonment under Section 148 of the Indian Penal Code, the Sentences to run concurrently,
D. Falshaw J.
9. I agree.