Find a Lawyer

Criminal Appeal No. 53 of 1965, decided on 14th December 1965.

Ss. 154, 161, 162 & 174‑First Information Report, or statement made by witnesses to Police under S. 161 or during examination in preparation of inquest report under S. 174‑Not substantive evidence‑Conviction cannot be based on such inadmissible evidence‑Statement in inquest report, or under S. 161‑Can at most be utilised under S. 162 to contradict witnesses in manner provided under S. 145, Evidence Act, 1872‑Evidence Act (1 of 1872), S. 145‑Penal Code (XLV of 1860), S. 302.

S. 288‑Statement of eye‑witnesses before committing Magistrate without their being transferred to Sessions file under S. 288 cannot be read as evidence at trial.

Nazeer Ahmad Khan for Appellant.

R. S. Sidhwa for A.‑G. for the State.

Date of hearing: 14th December 1965.

.‑Haji Muhammad, son of Boora, aged 32 years, was tried by Mr. K. M. A. Samdani Sessions Judge, Sialkot, for an offence under section 302 of the Pakistan Penal Code for causing the death of Mst. Zubeda deceased, daughter of Ahmad Din, aged 19 years. Haji Muhammad was convicted under section 302, P. P. C. and sentenced to death subject to the confirmation by this Court. The convict has filed an appeal and the record of the case is also before us for the confirmation of the death sentence imposed upon Haji Muhammad. This judgment will dispose of both the appeal and the reference together.

2. The prosecution case may be shortly narrated. Mst. Zubeda deceased was a girl of lax morals. She was suspected of concealing illegal abortion. The matter was reported to the police but for lack of evidence she was not proceeded against. Subsequently, on the 31st of December 1963, she was again apprehended by Bombanwala Police in suspicious circumstances and brought back to her parents. On the 1st of January 1964, shortly before sunrise, she was murdered by the appellant in the house of her grandfather, Boora. Abdullah Lambardar (P. W. 11) along with Ali Muhammad Chowkidar (P. W. 12) of village Baqirpur happened to pass that way, when they heard the cries of the deceased and rushed to the kotha of Boora, where they found the appellant attacking with a toka. The witnesses did not interfere. They raised an alarm which attracted Muhammad Iqbal (P. W. 13), on whose enquiry the appellant confessed that be had murdered Mst. Zubeda Begum deceased. The appellant was shut up in the same kotha by the witnesses. Abdullah Lambardar P. W., leaving Ali Muhammad P. W. to guard the spot, went to Police Station Daska, about seven miles away from the scene of offence, and lodged first information report Exh. P. G., at 9‑15 A. M. The same was recorded by Sub -Inspector Ghulam Rabbani (P. W. 14).

3. The Sub‑Inspector, after recording the first information report, reached the spot and found the dead body of Mst. Zubeda Begum deceased lying in the house and the door chained from outside. Ali Muhammad Chowkidar P. W. was sitting outside The Sub‑Inspector unchained the door from outside and found that it was bolted from inside too. However, at his order the appellant opened the door. The Sub‑Inspector found him present inside the room along with the dead body of Mst. Zubeda Begum deceased. The appellant had a blood‑stained toka, Exh. P. 6, with him and his clothes were also stained with blood, The Sub‑Inspector took into his possession toka Exh. P. 6, vide memo., Exh. P. H. and after preparing its sketch, Exh. P. H. 1 made it into a sealed parcel. He prepared injury statement Exh. P. H. and inquest report Exh. P. K. of the dead body of Mst. Zubeda Begum deceased and sent it to the mortuary at Sialkot for post‑mortem examination. He removed blood‑stained chaddar, Exh. P. 7, blood stained shirt, Exh. P. 8. and shoes, Exh. P. 9 from the person of the appellant and took them into his possession, vide memo., Exh. P. L. He also took into his possession blood‑stained earth from the spot, vide memo. Exh. P. N. and made it into a sealed parcel. He got prepared the site plan, Exh. P. F., from Bashir Masih, Draftsman, and arrested the appellant at the spot. The report Exh. P. U. of the Serologist shows that the blood‑stains on the toka, Exh. P. 6. had disintegrated and, therefore, their origin could not be determined. The chaddar, shirt and shoes, removed from the person of the appellant, however, were found to be stained with human blood.

4. Dr. Ghulam Sarwar (P. W. 1), Medical Officer, Civil Hospital, Sialkot, conducted the post‑mortem examination of the dead body of Mst. Zubeda Begum deceased on the 1st of January 1964, at 4‑05 p. m. and found the following injuries:‑

(1) An incised wound, 4" x " x brain deep on the left side of the head.

(2) An incised wound, 3" x " x bone deep on the left side of the head, 2" behind injury No. 1.

(3) A cut, 2 " x 1/8" x ", obliquely situated on the j unction of the trunk with the neck on the back.

(4) A cut, 2 " x 1/8" x ", obliquely situated J" above injury No. 3.

(5) A wound of the neck comprising of multiple cuts dividing all the structures of the neck including vertebral column and spinal cord, floor of the mouth dividing the tongue, lower jaw cut at multiple places into pieces. Lower lip was attached to the lower body.

(6) Upper wound (head side) comprising of multiple cuts on cheeks. Upper jaw was also cut at multiple places.

(7) A cut, 1 " x " x ", on the left forearm outer middle part.

(8) A deep abrasion, 1" x 1", on the left supra scapular region.

(9) Multiple abrasions over an area 2 " x 1", on the back of the left shoulder.

(10) A multiple abrasion over an area 2 " x 1", on the outer aspect of the left upper arm,

(11) An abrasion, 2" x 1 ", on the left anterior iliac spine.

(12) An abrasion, " x ", on the right knee.

The cause of death, in the opinion of the doctor, was due to shock and haemorrhage resulting from innumerable cut wounds. Injuries Nos. 1, 2, 5 and 6, in the opinion of the doctor, were individually and collectively sufficient in the ordinary course of nature to cause death.

5. The appellant pleaded not guilty to the charge and stated that he bad been implicated, because he was not on happy terms with his father and brother.

6. The prosecution has produced two eye‑witnesses, namely, Abdullah, Lambardar (P. W. 11) and Ali Muhammad, Chowkidar (P. W. 12), and Muhammad Iqbal (P. W. 13) as a witness to the confession of the appellant. Both the prosecution witnesses of the occurrence have not supported the prosecution story at all. The learned Public Prosecutor cross‑examined these witnesses with the permission of the Court. According to these witnesses on the day of occurrence early in the morning Ahmad Din, father of the deceased, told them that some one had killed his daughter, Mst. Zubeda Begum, and so they went to the house of Ahmad Din and found a large crowd there. They did not find Haji Muhammad appellant at the spot nor witnessed him committing the murder. Muhammad Iqbal (P. W. 13) also deposed that the father of the deceased came to him and informed him that his daughter had been murdered by some one. So he went to the house of Ahmad Din, but did not find Haji Muhammad appellant there. He also denied that Haji Muhammad confessed the commission of murder. Therefore, the learned Sessions Judge found that there was no direct evidence on the record to connect the appellant with the crime, but the trial Court relied in convicting the appellant on the following circumstantial evidence:‑

"(1) That the name of the appellant was mentioned in the first information report, which was lodged with utmost prompt ness and the statements of the witnesses, Ali Muhammad and Muhammad Iqbal in the inquest report, prepared by the Investigating Officer, corroborated the version of the occurrence, as given in the first information report; and

(2) that the dead body was found in the kotha of the father of the appellant and the appellant was arrested from inside the kotha, where the murder was committed. Besides, the clothes and the shoes of the appellant were stained with human blood."

7. We do not think that the learned Sessions Judge was right in taking into consideration the above pieces of circumstantial evidence for convicting the appellant. It is accepted principle of law that the first information report is not a substantive evidence, nor a statement made to the police under section 161, Criminal Procedure Code, or a statement of a witness examined in the inquest report under section 174 of the Code of Criminal Procedure, can be treated as a substantive evidence. In fact, a police officer under section 174, Criminal Procedure Code, has to make an investigation and to draw up a report, to find out the cause of death, in the presence of two or more responsible inhabitants of the neighborhood. The statements of the witnesses incorporated in the inquest report are not to be signed by the witnesses, it is only the report which is to be signed by such a police officer and others who concur therein. Therefore, a statement which forms part of the inquest report is a statement recorded by a police officer, in the course of an investigation and cannot be utilised as substantive evidence. The statement in the inquest report or under section 161, Criminal Procedure Code at the most can be utilised under section 162, Criminal Procedure Code to contradict such witnesses in the manner provided by section 145 of the Evidence Act. Therefore, the learned Public Prosecutor who cross‑examined Ali Muhammad and Muhammad Iqbal P. Ws. with the permission of the Court and confronted them with their statements, Exhs. P.K/1 and P.K/2 respectively, in the inquest report could not do so as the same is hit by section 162 of the Code of Criminal Procedure. Therefore, the statements Exhs. P. K/l and P. K/2 cannot be read in evidence, the same being inadmissible. The statements of the eye‑witnesses before the; Committing Magistrate could not be read as evidence at the trial, without their being transferred to the Sessions file under section 288, Cr. P. C. No doubt, the witnesses were cross- examined by the learned Public Prosecutor but nothing sub stantial has been brought out in their cross‑examination that the alleged eye‑witnesses are not telling the truth. Abdullah Lambar dar (P. W. 11) and Ali Muhammad, Chowkidar (P. W. 12) and Muhammad Iqbal (P. W. 13) unanimously stated that when they reached the spot, they only found Mst. Zubeda Begum deceased lying murdered and did not see the appellant near the place of occurrence. Muhammad Iqbal P. W. also denied that any extra -judicial confession was made to him by the appellant.

8. The evidence of the recovery of the blood‑stained clothes and shoes from the person of the appellant is not satisfactory. The two recovery witnesses, namely, Ch. Muhammad Abdullah and Muhammad Iqbal have categorically denied that any such clothes etc. were recovered from the person of the appellant. The learned Sessions Judge has also not taken into consideration the statement of Muhammad Hussain (P. W. 10), who stated that on the day of occurrence when he went to the house of Boora, the grand‑father of the deceased, he found deceased lying murdered, in the door, which was lying open. After his arrival, Muhammad Iqbal, Abdullah, Lambardar and Ali Muhammad, Chowkidar P. Ws. were sent for and that he and Ali Muhammad P. W. remained there while the others went to lodge the report, and that he did not find the appellant on his arrival or at the arrival of the police, near the scene of crime.

9. For the reasons given above, we accept the appeal, set aside the conviction and sentence of the appellant and acquit him. His sentence, of death is not confirmed. He is ordered to be released forthwith if his custody is not required in any other

K. B. A.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.