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Criminal Appeal No. 298 of 1967, decided on 8th December 1967.

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--‑Witness‑Hostile witness‑Cross‑examina tion‑Prosecution witness, in opinion of court, turning hostile-- Can be allowed, by order of Court, to be cross‑examined only by Public Prosecutor‑Court allowing counsel for complainant to cross‑examine such witness without passing any order‑Practice, held, highly irregular‑Criminal Procedure Code (V of 1898), S. 1178‑Evidence Act (I of 1871), S. 154.

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----‑Credibility of witness-‑-Cannot be treated as divisible and accepted against one and rejected against other.

Muhammad Fiaz Bakhsh v. The Queen P L D 1959 P C 24; Abdul Raziq v. The State P L D 1964 Pesh. 67 and Ahmad Khan and another v. The State P L D 1962 Lah. 390 rel.

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---Child witness‑Child of less than 8 years tutored and made to memorize statement given at trial‑No reliance can be placed on testimony of such witness.

Ch. Nazir Ahmad Khan, Ch. Eitzaz Hussain and Sh. Muhammad Hafiz for Appellant.

Nemat Khan for A.‑G. for the State.

Dates of hearing : 7th and 8th December 1967.

.‑Shahadat appellant was convicted under section 302, P. P. C. and sentenced to death for the murder of Amir deceased by the learned Additional Sessions Judge, Lyallpur. Murid and Umar Hayat, who were also tried along with the appellant, were, however, acquitted. The appellant, against his conviction and sentence, has preferred this appeal. The learned Additional Sessions Judge has made a reference under section 374, Cr. P. C. for the confirmation of death sentence. Since both the appeal and the reference arise out of the same judgment, they will be disposed of together by this order.

2. The appellant and the acquitted accused are residents of Chak No. 191/R. B., District Lyallpur, and are related inter se.

The deceased was also resident of the same Chak. On the day of occurrence, i.e. the 23rd of January 1966, which was Eid‑ul- Fitter day, Zulfiqar (P. W. 13), Amir deceased and his child Sanatta (P. W. 12), aged about 7 or 8 years, came to Eid Gah for saying prayers. The deceased was the maternal cousin of Zulfiqar P. W. After they had said their prayers and were saying Dua, Sanatta P. W. quarrelled with Munir, also a small boy, a relation of Shahadat appellant, who was also saying prayers there. Munir snatched the spectacles from Sanatta P. W. who slapped him. At this juncture Shahadat appellant got up and slapped Sanatta P: W. and also abused him. On seeing this Amir deceased also got up and abused Shahadat appellant and there after they started quarrelling with each other. Ghulam Muhammad (P. W. 21), a Member of the Union Council, who was present at the Eid Gah, intervened and separated the deceased and Shahadat appellant. Umar Hayat and Murid, acquitted accused, were also present there. They told the deceased that he had insulted Shahadat, appellant in the presence of his relatives and, therefore, they would wreak vengeance and after that left .the Eid Gah. After Eid prayers the deceased, Zulfiqar and Sanatta P. Ws. went to the adjacent graveyard in order to say Fatiha at the graves of their relations, including the mother of the deceased. They remained in the graveyard for about 1 or 1 hours saying Fatiha at three graves and then left for their house at about dopehrwela. The deceased was walking ahead of Zulfiqar and Sanatta P. Ws. When they reached near the house of one Hasta Musalli, Shahadat appellant and Murid and Umar Hayat, acquitted accused came out and met them. Shahadat and Murid were armed with guns, while Umar Hayat was armed with a dang. Shahadat appellant shouted that they would not allow Amir to remain alive. Murid thereupon fired a shot at Amir, but missed him. Amir tried to run away in order to save his life. Umar Hayat then shouted a lalkara not to allow Amir to go alive, upon which Shahadat appellant fired a shot, which bit on the right temple of the deceased as a result of which he fell down and died. The appellant and the acquitted accused then left the spot, while firing shots in the air. The alarm raised by Zulfiqar P. W. attracted Roshan (P. W. 14), Amir (P. W. 15). Mst. Bano (P. W. 161, widow of the deceased to the spot, who happened to be nearby at that time, and they also witnessed the occurrence. Akbar (P. W. 19) who also received injuries at the time of the occur rence, and Mst. Hayat Bibi (P. W. 20), were examined as eye witnesses in this case though they were not mentioned as such in the first information report. Zulfiqar P. W. went to police Station Chak Jhumra, reaching there at about 1‑30 p. m. on the same day and lodged first information report Exh. P. B., which was recorded at his dictation by Sub‑Inspector Taufiq Ahmad (P. W. 8). The distance between the place of occurrence and the Police Station would be about four miles. On the same day Sub‑Inspector Muhammad Saddiq (P. W. 23), Incharge Police Station Chak Jhumra, while going to the police station met Sub‑Inspector Taufiq Ahmad P. W. near the grid station and then both of them, along with some Police Constables, proceeded to the scene of offence, where they reached at about 3 p. m., Taufiq Ahmed P. W. had shown the first information report to Sub‑Inspector Muhammad Sadiq P. W. before they had proceeded to the place of occurrence. At the scene of offence Sub‑Inspector Muhammad Sadiq P. W. prepared injury statement Exh. P. M. and inquest report Exh. P. N. of the dead body of Amir deceased and sent it to the mortuary for post‑mortem examination. He also secured two empties Exhs. P. 7 and P. 8 from the scene of offence, vide memo. Exh. P. D. and made them into a sealed parcel. This recovery was witnessed by Dilmir (P. W. 11), Zulfiqar (P. W. 13), and Muhammad (P. W. 22). It may be mentioned here that Dilmir P. W. did not support the prosecution. The Sub‑Inspector also recovered one empty Exh. P. 9. from the spot vide memo. Exh. P. E. and made it into a sealed parcel. 7 ‑his recovery was witnessed by Roshan (P. W. 14), Zulfiqar (P. W. 13) and Muhammad (P. W. 22). He also recovered blood‑stained earth from there. On the 25th of January 1966, the Sub‑Inspector arrested Shahadat appellant and Munir and Umar Hayat, acquitted accused, from a sugarcane field near Gatti Railway Station. Shahadat appellant had a double‑barrel gun Exh. P. 10, while Murid, acquitted accused, had a single‑barrel gun Exh. P. 11, which the Sub‑Inspector took into his possession vide memo. Exh. P. G. and P. H. respectively, and made them into two separate sealed parcels. Both these recoveries were witnessed by Zulfiqar and Roshan P. Ws. The parcels containing the guns as well as the empties were sent to the Forensic Science Laboratory, Lahore, where Shah Jahan Khan (P. W. 17), a Firearms Expert, after examining them found that the ernpne5 Exhs. P. 7 and P. 8 were fired from gun Exh. P. 10 and empty Exh. P. 9 was fired from gun Exh. P. 11. His report is Exh. P. S.

3. On the 24th of January 1966 at 11‑30 a. m. Dr Munawwar‑ud‑Din (P. W. 1) performed post‑mortem examination of the dead body of Amir deceased and found the following injuries :‑

(1) A lacerated wound on the right upper eyelid inner part, 1/10' x 118' opening into eye cavity.

(2) A lacerated wound on the right check " below the lower eyelid, 1/8" x 1/8" bone deep.

(3) Two lacerated wounds, close to each other, on the right face, 1 ', lateral to injury No. 2, each 1/8' x 1/8'.

(4) Multiple lacerated wounds over an area, of 3' x 3" varying in length from ' x to 1/8" x 1/8" bone deep on the right temporal region.

(5) Four lacerated wounds on the upper part right ear, each varying in length, 1/8' x 1/6 to 1/10 x 1/8' cartilage deep.

(6) A contusion on right upper eyelid, 1 x 1'.

(7) An abrasion on the left forehead, 3/8" x x 2" above the eyebrow.

(8) A lacerated wound on the right forehead, 2 above eyebrow, 1/8" x 1/8' x bone deep.

On dissection it was found that there was comminuted fracture of the right temporal bone and middle cranial fossa on the right side under injury No. 4. There was also laceration of the brain under injury No. 4 over an area of 2' x 1'. All the injuries except injuries Nos. 6 and 7 were caused by a blunt weapon. In the opinion of the doctor the death of the deceased was due to shock, haemorrhage and compression of the brain as a result of injury No. 4, which was individually fatal in the ordinary course of nature to cause death.

4. On the 29th of January 1966 at 5 p.m. Dr. Abdul Qadir (p. W. 2) examined Akbar P. W. and found the following injuries on his person :‑

(1) A healing contused wound, 1' x 1/6' x on the top of the head in the middle.

(2) Swelling, 1' x 1', on the back of left hand near the root of middle finger.

Both the injuries were simple and had been caused by a blunt weapon.

5. Shahadat appellant denied his guilt and declined to examine any witness in his defence.

6. The prosecution in order to prove its case examined Sanatta (P. W. 12), Zulfiqar (P. W. 13), Roshan (P. W. 14), Amir (P. W. 15), Mst. Bano (P. W. 16) Akbar (P. W. 19) and Mst. Hayat Bibi (P. W. 20), the alleged eye‑witnesses in this case, coupled with the evidence regarding the recoveries of empties and the guns as already mentioned above. The learned Additional Sessions Judge placed no reliance on the testimony of Zulfiqar, Roshan, Amir, Mst. Bano, Akbar and Msr. Hayat Bibi P. Ws. He also disbelieved the evidence with respect to the recoveries. He partly relied on the testimony of Sanatta P. W. and convicted Shahadat appellant and acquitted Mund and Umar Hayat, his alleged companions.

7. Regarding the recovery of the guns we have the evidence of Zulfiqar, Roshan, Muhammad and Sub‑Inspector Muhammad Sadiq P. Ws., according to whom the guns were recovered on the 25th of January 1966, Foot Constable Ali Shan (P. W. 3), however, completely belied them. He stated that he .had gone to the spot with the S. I. Muhammad Sadiq P. W. on the 23rd of January 1966, and had seen both the guns Exhs. P. 10 and P. 11, alleged to have been recovered from Shahadat and Murid on the 25th of January 1966, lying at the spot In cross‑examination by the counsel for the complainant he made the following statement :‑‑

"Both the guns were lying at a distance of 1 footstep or 1 footsteps from the dead body. At a distance of 10 to 15 foot steps the accused persons were also standing and they informed that the guns belonged to them."

Foot Constable Izhar Hussain Shah (P. W. 4), before the Committing Magistrate, stated that on the 23rd of January 1966, he had gone to call both the accused, Shahadat and Murid, from their houses and that they had come with their guns and produced them before the Sub‑Inspector. There is no reason to disbelieve the testimony of these two Foot Constables and, therefore, the guns must have been recovered on the 23rd of January 1966, and not on the 25th of January 1966, as alleged by the Sub‑Inspector. Thus it is obvious that the Sub‑Inspector has shown a delayed recovery. Therefore, the possibility that he had fired three shots from each of the barrels of those two guns and sent them along with the empties to the Forensic Science Laboratory, Lahore, cannot be excluded. In view of the above the learned Additional Sessions Judge rightly disbelieved the evidence with respect to the recoveries.

8. Now we are left with the testimony of the alleged eye witnesses. Akbar and Mst. Hayat Bibi P. Ws. did not implicate the appellant and his companions at all. Their version regarding the incident is quite different. Akbar P. W. made the following statement :‑

"On previous Eid‑ul‑Fitter day, at about 8‑30 a.m., the whole of the village was present in the graveyard for Eid prayers. During the prayers Sanatta son of Amir deceased and Munir son of Sajawal exchanged hot words and quarrelled. Amir deceased got up and abused Munir and gave a slap on his face. On this Doula and Amir deceased quarrelled. Doula was saying that why Amir had given a slap to Munir and that he should have snubbed both the boys. Doula is maternal cousin of Munir. On this the people, who had gathered there, made two parties. In the party of Amir, Isa son of Bakhshi, Roshan son of Hassan, Mir son of Karam, Ghulam son of Babal, Muhammad son of Massan, Akbar son of Lala, Bakhshi son of Lai, Muhammad Yar son of Babal, Muhammad son of Shahabal took part. On the other hand the party of Doula consisted of Yaqub son of Mohabbat, Khan son of Mohabbat, Bakhshi son of Mohabbat, Alawal son of Khan, Bahawal son of Hassan, Allah Yar son of Bahawal, Ahmad and Farid sons of Chawa. Then between the two parties a fight ensued. They were giving blows to each other by hands and fists and then they started to go to the village. Some persons of both the parties rushed to the village in order to collect weapons. When the parties reached the western corner of the village, the persons who had gone to bring weapons came back. Isa son of Bakhshi had a gun, Roshan son of Hassan had a gun, Amir deceased had a stick, Amir son of Karam had a lathi, Akbar son of Lai had a lathi, Ghulam son of Babal had a licensed pistol, Yaqub son of Mahabbat had a gun, and Doula son of Sohna had a gun. On each side there were 50 to 60 persons and they were fighting with each other making use of their guns, balams and lathis. N4y party was of Doula and Yaqub etc. I made a request to Amir son of Karam to give up the fight. Amir son of Karam gave a lathi blow on my head. Akbar son of Lai gave me a blow on my left arm. Mst. Hayat Bibi, widow of Baqqa, brought a Holy Quran on the spot. She advised Amir deceased in the name of Holy Quran to get hack and not to indulge in the fight as there was no use or fighting, Amir deceased gave a fist blow on the Holy Quran but Mst. Hayat Bibi pressed the book to her body to save it from falling down. In the meantime shots were being fired in the air and one shot was received by Amir deceased and I do not know who had fired it. He fell down. I was medically examined."

He also added that he did not see Mst. Bano and Zulfiqar P. Ws. at the spot. According to him Zulfiqar P. W. was not living in the village at that time. Mst. Hayat Bibi P. W. support ed him. She also stated that she did not see ‑Mst. Bano and Zulfiqar P. Ws. at the spot. She denied that she was related to the accused (appellant's) party. From the perusal of the record we find that both these witnesses as well as Foot Constable Ali Shan (P. W. 3) were allowed to be cross‑examined by the com plainant's counsel. In the first place there ought to have been order by the Court allowing the Public Prosecutor to cross examine these witnesses, if in the opinion of the Court they had turned hostile. When that order was passed, then only the Public Prosecutor could have cross‑examined them and not the counsel A for the complainant, who had no locus standi. This practice in our opinion, was highly irregular. Akbar and Mst. Hayat Bibi P. Ws. did not support the prosecution version.

9. Zulfiqar P. W., who is resident of Chak Ansariwala, district Jhang, stated that 1 or 2 months prior to the occurrence he had shifted to Chak No. 191/R. B. district Lyallpur, and started living with his maternal cousin, Amir deceased, on account of a quarrel with his parents. According to him the distance between Chak Ansariwala and Chak No. 191/R. B. is about 20 or 21 miles. He further stated that he wanted to get married to the girl of his phuphi, but his parents did not agree, and that is why he left the house after having got annoyed with them. Before the Committing Magistrate, however, he stated that his parents had demanded the hand of the girl for him and it were the girl's parents, who did not agree. If that is so, how could he have quarrelled with his parents and started living with the deceased. Before the Committing Magistrate he also stated that his father was 80 years old and was unable to do the work, and that it was he (this witness) who used to do all his work. He also stated that he had left behind crops in Chak Ansariwala, which were looked after by his brothers and sisters. Before the police he also did not mention that due to quarrel with his parents .he bad left them and started living with the deceased in his village. Taking all these discrepancies into consideration we feel that his presence in Chak No. 191 R. B., where the occurrence took place is doubtful. In any case his version about the incident is different to the version given by the other eye‑witnesses. He stated that Shahadat appellant first fired the shot and missed and then Murid fired and hit the deceased on the right temple. In answer to the Court question he repeated the same version. The other eye‑witnesses, however, stated that it was Murid, who first fired the shot and missed and then Shahadat appellant fired and hit the deceased on his right temple. In view of the above his evidence was rightly disbelieved by the learned Additional Sessions Judge.

10. Roshan P. W. stated that at the time of the occurrence he was taking his bullocks to the village pond, and that when he reached near the house of one Shera, he heard the alarm and witnessed the occurrence. In cross‑examination he stated that his dhari was in the south‑eastern corner of the village, and that water courses passed by the side of his dhari. The village pond where he was taking his cattle is at a distance of about five killas from his dhari, while the other water courses, were much nearer to his house. In view of the above it is difficult to believe that he would not go to the water courses near his house and instead would go to the village pond, which is much further away. Thus his presence at the spot has also become doubtful. He admitted that he was challaned under section 107/151, Cr. P. C. along with 24 others‑ on the report of Shahadat appellant. He further admitted that Sahadat appellant and his party consisting of 24 persons were also similarly challaned on the other side. He denied that he was challaned for tile same offence in 1962, along with 24 others at the instance of Allah Bakhsh, a brother of Sultan maternal cousin of Umar Hayat, acquitted. accused. He is belied by the statement of Allah Bakhsh, made before a Magistrate, the copy of which is Exh. D. E., in which he is named as one of the accused. He admitted that the aforementioned Sultan had also abducted the girl of one Ali, his Palrair. He further admitted that he appeared as a witness‑ in a case under section 430, P. P. C. against Shahamad, father‑in‑law of Murid, acquitted accused. In view of the above he is also admittedly inimical towards the appellant and the acquitted accused. Amir P. W. stated that on the day of occurrence, which was Eid‑ul- Fitter day, he was going to village Jandanwali to fetch toori and when he reached near the house of Shera he witnessed the occurrence. It is strange that on Eid day instead of spending his time with his family, he would go to other village to fetch tool. His version as well as the version of the other eye‑witnesses regarding the occurrence also appears to be ridiculous. According to them first Shahadat appellant shouted a lalkara, upon which Murid fire and missed and then Umar Hayat gave a lalkara, upon which Shabadat appellant fired and hit the deceased on his right temple. There was no point in Shahadat appellant exhort ing Murid appellant to fire, because he himself was armed with a gun and would have fired, as according to the prosecution they had come there to kill the deceased. He admitted that Murid, acquitted accused, abducted the daughter of Baqar, brother of his (Amir's) father‑in‑law. In that case Murid, his brother Farid, Ahmad, his father Mahmud and Mohabbat Khan and Bakhshi were challaned. He also stated that Mst. Fatima, daughter of one Ali, his maternal cousin, was abducted by Sultan, a maternal ‑cousin of Umar Hayat, acquitted accused, and as a result there of both the parties were challaned under section 107/151, Cr. P. C. He further admitted that Ismail, Ghulam and others had abducted Muhammad, father of Umar Hayat, acquitted accused, and a case under section 364, P. P. C. was registered. His (Amir's) nephews were challaned in that case. He also added that he was a witness in a case under section 430, P. P. C. against Shahamad, father‑in‑law of Murid, acquitted accused, and that Shahamad and others had filed a Civil suit against him. Therefore, it is clear that he is a sworn enemy of the appellant and his compa nions. Mst. 'Banc P. W., the widow of the deceased, before the C. M. on the 6th of July 1966, stated that the shot fired by Shahadat appellant hit the deceased when he was running away in order to escape and Shahadat appellant was running after him. Before the Committing Magistrate on the 9th of June 1966, she stated that he bad also told the police that when she heard an alarm she found her husband being chased by Shahadat, Murid, and Umar Hayat. If that is so, the deceased should have been hit on the back and not on the right temple. Taking into con sideration all the aforementioned discrepancies and peculiar features in the evidence of Zulfiqar, Roshan, Amir and Mst. Bano, no reliance can be placed on their testimony and they, in our opinion, were rightly disbelieved by the learned Additional Sessions Judge.

11. Now we are left with the testimony of Sanatta P. W. who was less than 8 years old at the time when he gave evidence at the trial. The learned trial Judge disbelieved his evidence with respect to Murid and Umar Hayat and acquitted them, but believed his evidence with respect to Shahadat appellant and convicted him. It is well established principle that the credibility of a witness could not be treated as divisible and accepted against one and rejected against the others. His honesty having been t shown to be open to question, it would not be right to accept his evidence against one and reject against the others. We arc fortified in this view by the cases; Muhammad Faiz Bakhsh v. the Queen (P L D 1959 P C 24), Abdul Raziq v. The State (P L D 1964 Pesh. 67) and Ahmad Khan and another v. The State (P L D 1962 Lah. 390). The learned Committing Magistrate did not record the statement of this witness on the ground that he was too young and not intelligent enough to understand the questions and make replies to the same. He had drawn the conclusion on the following questions :‑

Q. Do you know where you are standing at this time

A. (He cannot make a reply).

Q. Do you know before whom you are standing

A. (He cannot make a reply).

Q. Do you know, if it is better to tell a lie or to speak the truth

A. It is better to speak truth.

Q. What happens if one tells a lie

A. (He is unable to make a reply).

The learned trial Judge, however, has made a note to the effect that he did not agree with the lined committing Magistrate because he had put this witness questions with respect to his environment, his education, the name of his teacher and what he had learnt while he was in school in the first class. He also added that the witness gave answers, which were expected normally at that age and, therefore, he (the learned trial Judge) saw nothing in him that he was not intelligent enough to make a statement. It would have been desirable for the learned trial Judge to have recorded the questions and answers put to the child witness so that the appellate Court should feel satisfied as to the capacity of the child to give evidence. In cross‑examination he admitted that he was told when he appeared before the Sessions Court that he should remember his statement in order to know what state ment he was to make. He also admitted that he was told what was the correct statement, which he should make before the Court. He further admitted that he was told by the Vakeel what statement should be made by him. Prior to that he was taken to the office of the Vakeel where the Vakeel and Zulfiqar had made him memorise his statement, which he was to make in the Court. Even on the day when he appeared before the trial Court the Sub‑Inspector also told him what statement he was to make, and that if he did not make a statement according to his wishes, the case of his deceased father would be spoiled. He admitted that he then made the statement accordingly. In view of the afore mentioned admissions it is clear that he was tutored and was made to memorise the statement, which he made at the trial. On this ground also no reliance can be placed on this testimony. It may also be mentioned that the learned counsel for the State frankly conceded that he could not support the conviction of the appellant.

12. In the result we accept the appeal, set aside the convic tion and sentence of the appellant and acquit him. He should be released forthwith, if not wanted in any other case.

Appeal accepted.

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