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Criminal Appeal No. 810 of 1966, decided on 10th April 1968.
Ss. 100 & 300, Exception 1 read with Evidence Act (I of 1872), S. 105-Private defence, right of-Grave and sudden provocation-Burden to prove that his case falls within any of Exceptions lies on accused and prosecution must affirmatively prove its own case-Doubt arising in regard to veracity of projection case or defence version seeming reason ably possible-Resultant situation to be construed in favour of accused.
It is for the accused to prove under section 105 of the Evidence Act the existence of circumstances which might bring their case within any of the general Exceptions in the Pakistan Penal Code or within any Exception or provision contained in any other part of the same Code or in any law defining the offence. This section further enjoins that the Court shall presume the absence of such circumstances. While bearing this in mind one should not lose sight of the now well-recognized principle of Criminal Jurisprudence that the prosecution must affirmatively prove its own case, the onus for which remains on it throughout. An accused person has to prove his special plea that may be set up by him in defence, but not to the same degree of certainty beyond a reasonable doubt, such as it is necessary for the prosecution, to establish the guilt of accused persons. After an over-all examination of the whole case, i.e., the case as made out by the prosecution and the defence, putting both in juxtaposition in the context of the entire evidence adduced, if any doubt arises in regard to the veracity of the prosecution case or if defence version seems reasonably possible, although not decisively established, the resultant situation has to be construed in favour of the accused.
S. 288-Object and purpose-Previous statement of witness before committing Court contradicted at trial but trial Court taking no steps to admit or refuse to admit same on Sessions record-Such evidence can serve only purpose of throwing cloud on veracity of witness's statement.
Per Sajjad Ahmad, J.-Admission of statement made at the inquiry under section 288 of the Criminal Procedure Code for its treatment as evidence in the case is within the discretion of the Presiding Judge. It is one of the Exceptions to the general principle that only that evidence is to be acted upon by a Court which is directly given before it. The decision to let in the previous deposition of the witness has, therefore, to be made in the discretion of the Presiding Judge after a careful consideration of the matter and for justifiable reasons, and not flippantly as a matter of routine. Discrepancies ors small and minor points will not justify action under section 288 of the Code. The main purpose of the inquiry proceedings as envisaged its Chapter VIII of the Code is that the prosecution should unfold its case so that the defence is got taken unawares at the trial and that the statement recorded at the inquiry should form a check against the revilement of the witnesses front these statements. The discretion vesting in the Presiding Judge, allowed by section 288 has to be exercised to advance the cause of justice and tea assess the real worth of the witnesses' statement is an effort to diver the truth. Once the previous statement is admitted, it becomes a part of the statement tendered at the trial for all purposes including its worth on merits. If the Presiding Judge Is not invited to exercise his discretion in admitting the statement and where he does not do so himself in spite of the confrontation of the witness with that statement as made during the trial, the only object achieved is that two conflicting statements by the sauce witness on the same point are, shown to exist, but no question of believing one or, the other arises unless both are put at a par for evidentiary value which can be done only by making tine inquiry statement a part of the evidence at the trial under section 288 of the Criminal Procedure Code. The rule is the same whether the confrontation has been done by the prosecution or by the defence.
The previous statement, however, not being evidence in the case cannot be made the basis of a positive finding. The Court can certainly tale note of this fact as a chatter emerging in tile case fear consideration. Without being able to treat it as a part of the evidence, the only Outpost it can serve is that a. cloud is thrown around the veracity of the witness statement on tart point in issue for having made contradictory statements.
State v. Behari Lal P L D 1959 Dacca 833 ref.
.-Section 288 is not a section to be ordinarily used as a matter of course, but in the discretion of the Judge and the fact that the whose statement is to be brought on the record to be used as substantive evidence suggests that the proper occasion to use it is when the trial Judge is satisfied that the statement made before him is substantially false and the statement made before the committing Magistrate as substantially true. The existence of contradictions moue elicited in the cross-examination by the defence is not a ground sufficient to justify the bringing bodily on to the record of the statement of a witness under section 288. Moreover, section 288 is different in object from section 145, Evidence Act in that the latter section remains all along in action in favour of tine accused to inform the Court that the credence of a witness is shaken because of certain discrepancies in his previous statement and the one at the trial, whereas section 288 comes into play only at the discretion of the Court, when a witness
resiles from iris previous statement. It follows from it that resilement cannot be equated with contradictions in the state ments of a witness. There may be a witness who does not resile front his previous statement and yet there might be contradic tions in his statements which may in given circumstances promote the cause of defence. The object of section 288, Cr. P. C. primarily appears to be to guard against a witness being won over and if the Court is satisfied from the conduct and denmeanour of the witness by making oscillating statements, section 288 is resorted to in that event. The purpose or section 288, therefore, is different from section 145 of the Evidence Act. The one protects primarily the interest of the prosecution and the other is available to both.
Emperor v. Zawar Rahman I L R 1104, Cal. 142 and Subbiah Jean and another v. Emperor (1929) M W N 789 ref.
S. 288 read with Ss. 423 & 561-A---Statement of witness before commit ting Court contradicted at trial but trial Court failing to transfer name to Sessions file-Whether High Court can transfer such statement to record of case under Ss. 423 & 561-A.
Mst. Punia Gealin v. Emperor A I R 1947 Pat. 146 ref.
S. 302--Vurder---Sentence-Accused putting deceased to death under terrible strain of wounded family honour and prestige-Adequate reason for not imposing extreme penalty of law for offence of murder-Sentence .of death commuted to that of transportation for life.
Ss. 100 & 300, Exception 1--Self defence, right of---Grave and sudden provocation-Nature of pleas to be ascertained not only from statement of accused but from trend of cross-examination of prosecution witnesses and from arguments of accused's counsel at close of trial.
It is a cardinal principle of law that the accused is not called upon to disclose the true facts of the case. An accused person does not by giving false answers to questions put to him in his examination render himself liable to punishment. A resort to a false defence will affect the credit to he attached to his case and raise an inference against hire though the Court is not relieved of the task of attempting to arrive at a sound conclusion from tire whole evidence. The whole evidence includes the examination-in-chief, the points elicited by the cross-examina tion from the witness by reference to leis previous statements, the, before the committing Magistrate, before the police also statement under section 164, Cr. P. C., if recorded. The nature of the defence plea is to be ascertained not only from the state ment of the accused but from the trend of the cross-examination of prosecution witnesses and from the argument of the accused's counsel at the close of the trial. Keeping the local conditions in. view, the statement of a witness pat in the list of witnesses in the emitting Court, is considered more in favour of the prosecution than that of the accused after it passes through the test of the investigating Agency. The presumption in that whatever the version put forward by the witness before the committing Magistrate is considered in support rather than against the prosecution.
S. 302--Murder-Weapon of offence-Sharp-edged pointed weapon like barchhi can cause penetrating wound as well as incised wound-Axe In no circum stances can cause two types of injuries-Edges of wounds caused by heavy cutting weapons may not he as smooth as those caused by light cutting weapons.
A sharp-edged pointed weapon like a barchhi can cause an incised wound of various dimensions depending upon the impact of the blow hitting bony part of the body. If the sharp pointed tip does not land on the bony part at right angle it may cause an incised wound. It follows from it that a sharp- edged pointed weapon like barchhi can cause penetrating wound as well as incised wound, whereas an axe in no circum stances can cause two types of injuries.
The edges of wound made by a heavy cutting weapon, such as an axe, hatchet or shovel, may not be as smooth as those of a wound caused by a light cutting weapon, such as a knife, razor, etc., and may show signs of contusion. Such a wound is as a rule, associated with extensive injuries to deep underlying structures or organs.
Modi's Medical. Jurisprudence, Eleventh Edn., p. 208 ref.
Ss. 302 to 304, Part I-- Accused proved to have sufficiently strong motive to kill making a concerted attack on deceased-Offence, hold, clearly falls under S. 302 and not S. 304, Part I.
Eitizaz Hussain for Appellants.
Malik Muhammad Jafar for the State.
.--The two appellants Abdul Aziz and Abdul Rahman, who are father and son respectively, have been sentenced to death by the Additional Sessions Judge, Sahiwal, for the murder of their co-villager Tufail Muhammad. They have been further convicted under section 449/34, P. P. C. and each sentenced to transportation for life and a fine of Rs. 100.00 each or in default to one month's rigorous imprisonment for having committed criminal trespass in the house of the deceased with the intention of committing his murder. In view of the murder of Tufail Muhammad, which was an admitted fact, this second charge was an unnecessary appendage. The reference for confirmation of the death sentences awarded to the appellants under section 374, Criminal Procedure Code, is also before us along with the appeal filed by the appellants against their convictions and sentences.
2. The occurrence took place at about 10 a.m. on the 14th of September 1965 in the house of the deceased. It was reported at 12 noon by P. W. 7, Ata Muhammad, brother of the deceased, to Muhammad Feroze Khan A. S. I., who at the time was investigating an accident case in Chak No. 115/E. B., which is situate at a distance of 3/4 mile from the scene of occurrence. In the report, both the appellants were charged for causing the murder of the deceased; Abdul Aziz by giving him spear blows and Abdul Rahman, by blows with a hatchet. Wali Muhammad, Ali Muhammad, Ghulam Muhammad and Ajmer Khan were mentioned as the persons who had witnessed the occurrence, besides Ata Muhammad himself. It was stated in the report that the deceased was murdered because he was suspected by Abdul Aziz for carrying on an immoral relationship with his daughter Mst. Niaz Fatima.
3. The autopsy of the deceased revealed that he had sustained two stab wounds and five incised wounds. The stab wounds had penetrated his chest cavity and the abdomen, each of which was individually sufficient to cause death in the ordinary course. One of the incised wounds, which was on the lateral aspect of the forehead of the deceased, had cut the outer table of the bone of the forehead. The other had cut the internal mallcolus bone. These injuries definitely indicated that two different weapons were employed in causing them, one being a sharp-pointed and the other a sharp-edged weapon.
4. As already mentioned above, five persons were named act the F. I. R. as the eye-witnesses. Ajmer Khan was not produced at all. Wali Muhammad, a real brother of the deceased, was abandoned as unnecessary. Of the three, who were produced at the trial, Ata Muhammad and Ali Muhammad are real brothers of the deceased. Ghulam Muhammad P. W. does not bear any relationship with the deceased. Being an apparently independent witness, his testimony has been relied upon by the learned trial Judge without any reservation.
5. Abdul Rahman appellant denied his presence at the spot and his participation in the attack on the deceased. The other appellant, namely, Abdul Aziz, admitted that he did injure the deceased in the circumstances which may be reproduced from his own statement. He had a small injury on the left index finger, 1' x 1/8"' x skin deep, and when asked to explain it, he replied as follows:-
I saw Tufail Muhammad deceased committing sexual inter course with my daughter Mst. Niaz Fatima. I retreated and stood at short distance and started abusing Tufail Muhammad deceased. Tufail Muhammad and Mst. Niaz Fatima came out. Tufail Muhammad deceased was holding a sword in his hand at that time. He abused me also. He gave a blow with his sword on my hand."
In answer to the next question why the case was set up against him, he stated:
I picked up the weapon whichever came in my hand and which weapon was lying there. I caused injuries to the deceased with that. I completely lost control of myself when I injured the deceased. Abdul Rahman accused was not with me at that time."
Two questions arise for decision in this appeal. The first is whether Abdul Rahman appellant was also present and had caused injuries to the deceased as alleged by the prosecution, Abdul Aziz's presence being admitted, and the second whether the appellants are entitled to the benefit of the plea of grave and sudden provocation and of the right of self defence of person as claimed by Abdul Aziz appellant in his statement. The fact that the deceased was injured with two different types of weapons shows that his assailants were two. The incised wounds on his person were obviously caused by a sharp-edged weapon like a hatchet. That the deceased did sustain incised injuries at the hands of Abdul Rahman as alleged by the prosecution witnesses is strongly corroborated by the injure of those injuries, and the recovery of a blood-stained hatchet at the instance of Abdul Rahman, the blood on which was found to be of human origin. There is no apparent reason to disbelieve the evidence of this recovery. P. W. Ghulam Muhammad who has been accepted as an independent witness, has supported the other eye-witnesses, namely, Ata Muhammad and Ali Muhammad, about the participation of the appellants in the crime. It was urged that P. Ws. Ata Muhammad and Ali Muhammad should not be believed, because of their, close relationship with the deceased. I would not discard their evidence for thin reason alone. Ata, Muhammad P. W. owns a house shown in the site plan (Exh. P. N/1) which is in the same row as the house of the deceased where the examination took place and not very fat from it, but he stated that lie was attracted to the spot by the alarm raised from big shop which is as point 6, situated at about 2 furlongs from the scene of occurrence. As a false witness, he could have more advantageously shown leis presence in his house. He is the first informant who made the report within two hours of the occurrence giving its full details and mentioning the names of the persons, who had witnessed it. P. W. Ali Muhammad was at the time in his house which is situated at a distance of 10 Feet from that of the deceased accord ing to the site plan. He is thus a natural witness and. I should not reject (iris evidence merely because he had tried to suppress the illicit connection of his deceased brother with Afar. Mst. Fatima as the motive for the crime one other reason which has weighed with me in accepting their testimony is that there was .no motive for them for falsely implicating the appellants in the murder charge. The appellants did have a motive to kill the deceased because, of his suspected liaison with Mst. Niaz Fatima, but the brothers of the deceased had none to falsely charge the appellants. P. W. Ghulam Muhammad whoa is otherwise a disinterested witness lead at one stage tried to favour the appellants as will be explained in the signet (sic) beta that circumstance would not be sufficient to discredit his testimony altogether. I have no doubt that Abdul Rahman and Abdul Asia were both present and had caused injuries to the deceased as stated by the prosecution witnesses. I would confirm the finding of the learned trial Judge in this behalf.
7. The second point, which relates to the circumstances in which murder was committed presents a little difficulty in appreciating the pleas of grave and sudden provocation and of self-defence as set up by Abdul Aziz appellant. To begin with, it is for the appellants to prove under section 105 of the Evidence Act the existence of circumstances which might bring their case within any of the general Exceptions in the Pakistan Penal Code or within any Exception or provision contained in any other part of the same Code or in any law defining the offence. This section further enjoins that the Court shall presume the absence of such circumstances. While bearing this in mind one should not lose sight of the now well-recognized principle of Criminal Jurisprudence that the prosecution must affirmatively prove its own case, the onus for which remains on it throughout. An accused person has to prove his special plea that may be set up by him in defence, but not to the same degree of certainty beyond a reasonable doubt, such as it is necessary for the prosecution, to establish the guilt of accused persons. After an over-all examination of the whole case, i.e. the case as made out by the prosecution and the defence, putting both in juxtaposition in the context of the entire evidence adduced if any doubt arises in regard to the veracity of the prosecution case or if defence version seems reasonably possible, although not decisively established, the resultant situation has to be construed in favour of the accused. To turn to the circumstances of the present case, it must be stated at once that no case of self-defence for person is made out for which the only material employed by the defence is the insignificant injury on the hand of the appellant Abdul Aziz, which more probably was caused to him while handling his own spear and using it on the deceased. The injury itself does not indicate that it was a sword cut and a result of a direct hit. As for the plea of grave and sudden provocation, it does not appear to have been claimed definitely by Abdul Aziz in his statement reproduced above. The emphasis in that statement is more on the right of self-defence of person and not on the plea of grave and sudden provocation According to it after seeing the deceased in the act of sexual intercourse with his daughter, the appellant retreated and then abused the deceased without going in for him, which he should have, if he was really in a fit of grave and sudden provocation at the sight of the misbehaviour of the couple. He did not attempt to cause any harm to the deceased until the need arose to defend himself when the deceased threa tened him with his sword.
8. There seems no doubt that the motive for the murder was the suspicion nursed by Abdul Aziz about the illicit relationship of the deceased with his daughter Mst. Niaz Fatima. This motive was affirmed at the trial by the prosecution witnesses, although another one was added, viz. the factions in the village consequent on the B. D. elections, but this was apparently done to reduce the utility of the first in mitigation of the' appellants guilt. From the suggestions Put to P. W. Ata Muhammad on this point in cross-examination it seems that the unmoral relationship of the deceased with Mst. Niaz Fatima had become quite a scandalous affair, He was asked if it was correct that Mst. Niaz Fatima had become pregnant from the deceased and had given birth to an illegitimate child who was murdered. The witness denied knowledge about it without repudiating the suggestion.
9. While there is hardly any doubt that the cause of the murder of the deceased was the suspicion about his immoral relationship with Mst. Niaz Fatima, the story of the appellant that he had seen Mst. Niaz Fatima in sexual intercourse with the debased does not receive support from any quarter, there being no direct or circumstantial proof of this assertion. Mst. Niaz Fatima was not produced at the trial to prove it. The only point urged on behalf of the appellants in this connection and which engaged my serious consideration was that P. W. Ghulam Muhammad, who is releid upon by the learned trial Judge as an independent witness, had said in his statement before the Inquiry Court that he had seen Mst. Niaz Fatima in the house of Tufail Muhammad deceased and that Abdul Aziz appellant gave a soft blow to her with the blunt side of the spear and then she ran away. At the trial, he disowned this statement and the learned Sessions Judge thereupon made the following remarks:
"(Confronted with the statement of this witness made before the C. M. on the 4th of January 1966 as P. W. 3, where it is so recorded in portion marked "A" to A.,).
A further effort was made by this witness to explain away this part of his statement made in the Inquiry Court by volunteering to say at the trial :.
"A stick blow was given to Mst. Ghulam Fatima by Aziz when she tried to rescue Tufail Muhammad deceased. Mst. Ghulam Aishan was beaten by Aziz accused at a distance of one and a half karams from the door. Mst. Ghulam Aishan did not appear before the police. I do not know if Mst. Ghulam Aishan was in the Chak when the police came."
Who these two women, namely. Mst. Ghulam Fatima and Mst. Ghulam Aishan are and how they came to be introduced in the case by the witness way not made clear. No doubt, the statement of Ghulam Muhammad at the inquiry showing the presence of Mst. Niaz Fatima with the deceased at the time of the occurrence assails one's mind with a doubt on the point. The question, however, arises whether this suspicion can furnish a basis for a positive finding that the defence plea is true. The learned trial Judge has completely ignored it in his judgment. The record shows that the statement was exhibited as "A" to "A", but it was not duly transferred under section 288 of the Criminal Procedure Code to be read as part of the witness's evidence at the trial. Probably, the defence did not ask for its transfer and the learner trial Judge did not do so himself. The statement not having been duly transferred to the Session's file under section 288 of the Criminal Procedure Code, it does not form part of the evidence in the case. Its existence warrants the conclusion that P. W. Ghulam Muhammad had made this statement before the committing Magistrate from which he resiled at the trial thus making it difficult to discover which one is true and which is false. The conflict in the two statements cannot furnish a basis for a finding that what he had stated before the committing Court was true and what he stated later was false or vice versa.
10. Admission of a statement made at the inquiry under section 288 of the Criminal Procedure Code for its treatment s evidence in the ease is within the discretion of the Presiding Judge. It is one of the Exceptions to the general principle that only that evidence is to be acted upon by a Court which is directly given before it. The decision to let in the previous deposition of the witness has, therefore, to be made in the discretion of the Presiding Judge after- a careful consideration of the matter and for justifiable reasons, and not flippantly as a matter of routine. Discrepancies on small and minor points will not justify action under section 288 of the Code. The main purpose of the inquiry proceedings as envisaged in Chapter XVIII of the Cod is that the prosecution should unfold its case to that the defend is not taken unawares at the trial and that the statement recorded at the inquiry should form a check against the resilement of the witnesses from those statements. The discretion vesting in the Presiding Judge allowed by section 288 has to be exercise to advance the cause of justice and to assess the real worth o the witnesses' statement in an effort to discover the truth. Once the previous statement is admitted, it becomes a part of the state ment tendered at the trial for all purposes including its worth merits. If the Presiding Judge is not invited to exercise his discretion in admitting the statement and where he does not do so himself in spite of the confrontation of the witness with that statement a made during the trial, the only object achieved is that two conflicting statements by the same witness on the same point are show to exist, but no question of believing one or the other arises unless both are put at a par for evidentiary value which can be don only by making the inquiry statement a part of the evidence at the trial under section 288 of the Criminal Procedure Code. The rule is the same -whether the confrontation has been done by the prosecution or by the defence. In the present case, apart from the witness having been contradicted at the trial with the statement made by him before the Inquiry Court on the point of the presence of Mst. Niaz Fatima with the deceased, no step was taken by the learned trial Judge to admit or refuse to admit the previous statement on the Session's record. As such, the previous statement cannot be considered as a part of the evidence at the trial. At the best, a doubt is created by the existence of the previous statement of P. W. Ghulam Muhammad on the point of the presence of Mst. Niaz Fatima at the spot at the time of the occurrence; as it was denied by him at the trial. Ghulam Muhammad stands discredited on that point for that reason. The previous statement, however, not being evidence in the case cannot be made the basis of a positive finding: The Court can certainly take note of this fact as s matter emerging in the case for consideration as was held in a case from the Dacca High Court reported in State v. Behari Lal (P L D 1959 Dacca 833) wherein it was held that the statement not duly trans ferred under section 288 can be looked into and considered in appeal if facts and circumstances of the case require. To my mind, without being able to treat it as a part of the evidence, the only purpose it can serve is that a cloud is thrown around the veracity of the witness's statement on the point in issue for having made contradictory statements.
11. I have considered whether I can now transfer the Committing Court's statement of Ghulam Muhammad to make up for the failure of the trial Judge. If I had been persuaded to believe that his Committing Court's statement is true and the subsequent one on the same point is false, I think I should have admitted it as additional evidence in the exercise of my power under section 428 of the Criminal Procedure Code and, section 561-A of the Criminal Procedure Code, in the interest of justice. It was so held in a case from the Patna High. Court reported as Mst. Punia Gealin v. Emperor (A I R 1947 Pat. 146) There is, however, no justification for taking this extraordinary step which we were not even invited to take by the learned counsel for the defence. It seems to the that Ghulam Muhammad merely sought to make a concession in favour of the accused in his statement before the Committing Court from which he promptly resiled at the trial and thus withdrew the concession. It is significant that Ghulam Muhammad was not confronted with his police statement on this point although he was on other matters. Even if I were to treat the statement of P. W. Ghulam Muhammad made by him at the inquiry as a, piece of evidence in the case, I should be very reluctant to accept it as true without -a positive corroboration of its veracity, which is absolutely missing. While there is complete absence of any corroboration, circumstances do exist to disprove' it. Mst. Niaz Fatima was not produced to prove that she was present and had received an injury at the hands of Abdul Aziz appellant. She-is not even shown to have been medically examined. The story of the sexual inter course between Mst. Niaz Fatima; and the deceased could have derived support from circumstantial evidence. I feel that if Mst. Niaz Fatima lead been at the spot, she would have borne the burnt of the attack from her infuriated father and brother, because it was she who was to blame, if she had paid a clandes tine visit to the house of her paramour at 10 a.m. in the morning an the day of the occurrence. i refuse to believe that while Tufail Muhammad fell victim to their wrath, Mst. Niaz Fatima managed to escape absolutely unhurt and that they forgave her sin, although obviously the was the principal delinquent. The fact that the tyro appellants, father and sots, went to the house of the deceased aimed with lethel weapons and indulged in an attack on him there, indicates design and not a sudden provoked encounter.
12. On the evidence on the record and being unable to find any satisfactory proof in support of the plea of Abdul Aziz appel lant that he had acted in the exercise of the right of self-defence o in grave or sudden provocation and the prosecution case been free from doubt otherwise, I must uphold his conviction as well as of the co-appellant Abdul Rahman whose participation in the crime is equally established for the murder of Tufail Muhammad under section 302/34, P. P. C. The question of sentences awarded to the appellants has caused me some anxiety. It seems clear that the deceased had injured the honour and self-respect of the appellants and their family on account of his illicit liaison with Mat. Niaz Fatima, which must have put the appellants under heavy mental stress. To my mind, they had put the deceased t death under a terrible strain of wounded family honour and prestige. This is an adequate reason for not imposing on them the extreme penalty of law for the offence of murder. I would commute their sentences of death to those for transportation for life. The appeal is accepted to this extent. The sentences of death are not confirmed. Their convictions and sentences under section 449/34, P. P. C. are also set aside.
--I have read through the judgment of my learned brother. In my opinion this appeal is entitled to succeed to the extent that the conviction of Abdul Aziz under section 302, P. P. C. should be replaced by a conviction under section 304, P. P. C. I base this opinion on the following grounds
Ghulam Muhammad (P. W. 9) was confronted with a portion of his statement before the committing Magistrate, and his reply at the trial was:
"I did not see Mst. Niaz Fatima in the house of Tufail Muhammad . . . . . I did not state-so before the C. M. . . . on 4th January 1966 as P. W. 5 where it is so recorded in portion marked A to A."
(The underlining' is mine), It is worthy to reproduce from his statement at the trial in cross-examination
"A stick blow was given to Mst. Ghulam Fatima by Abdul Aziz accused when she tried to rescue Tufail Muhammad deceased."
The witness theta tried to create confusion by stating
"Mst. Ghulam Aishan was beaten by Aziz accused at a distance of one and a half karams from the door. Mst. Ghulam Aishan did not appear before the police," and so on.
2. In his statement before the Sessions Judge, Abdul Aziz appellant set forth the plea of right of private defence and sudden provocation. It is a cardinal principle of law that the accused is not called upon to disclose the true facts of the case. An accused person does not by giving false answers to questions put to him in his examination render himself liable to punishment, A resort to a false defence will affect the credit to be attached to his case and raise an inference against him though the Court is not relieved of the task of attempting to arrive at a sound conclusion from the whole evidence. To my mind the whole evidence includes the examination-in-chief, the points elicited by the cross-examination from the witness, by reference to his previous statements, i. e. before the committing Magistrate, before the police as also statement under section 164, Cr. P. C., if recorded. The nature of the defence plea is to be ascertained not only from the statement of the accused but from the trend of the cross-examination of prosecution witnesses and from the argument of the accused' s counsel at the close of the trial. Keeping the local conditions in view, the statement of a witness pet in the list of witnesses in the committing Court, is considered more in favour of the prosecution than that of the accused after it passes through the test of the investigating Agency. The presumption is that whatever the version put forward by the witness before the committing Magistrate is considered in support rather than against the prosecution.) Muhammad Firoz Khan (P. W. 12) Investigating officer, stated that he got recorded the statement bf Ghulam Muhammad under section 164. However, for certain reasons the recording Magistrate was omitted to be cited as witness, therefore, we do not know what was stated by Ghulam Muhammad in that statement. The confronted portion in the enquiry statement of Ghulam Muhammad if taken into consideration along with the motive set forth by the prosecution and the plea of the accused, the complexion of the case is changed by bringing the case from the ambit of section 302, P. P. C. to one under section 304, P. P. C, because Abdul Aziz will then be entitled to the benefit of Exception 1 to section 300, P. P. C. The trial Judge did not transfer the statement of Ghulam Muhammad before the committing Magistrate under the provisions of section 288, Cr. P. C. and to my mind there was no occasion for it. This section Is resorted to only when the witness resiles from his previous statement Ghulam Muhammad in his examination-in-chief has sub stantially supported the prosecution version, therefore, the trial Juge could not have been satisfied to exercise his discretion under section 288, Cr. P. C. Section 288, is not a section to be ordinarily used as a matter of course, but in the discretion o the Judge and the fact that the whole statement is to be brought on the record to be used as substantive evidence suggests that the proper occasion to use it is when the trial Judge is satisfied that the statement made before him is substantially false and th statement made before the committing Magistrate i substantially true. The existence of contradictions alone elicited in the cross-examination by the defence is- not a ground sufficient to justify the bringing bodily on to the record of the statement of a witness under section 288. Moreover, section 288 is different in object from section 145, in that the latter section remains all along in action in favour of the accused to in from the Court that the credence of a witness is shaken because of certain discrepancies in his previous statement and the one at the trial, whereas section 288 comes into play only at the discretion of the Court, when a witness resiles from his previous statement. It follows from it that resilement cannot be equated with contradictions in the statements of a witness. There may be a witness who does not resile from his previous statement and yet there might _ contradictions in his statements which may in given circumstance promote the cause of defence. The object of section 288; Cr. C. P. primarily appears to be to guard against a witness being won over and if the Court is satisfied from the conduct and demeanour of the witness by making oscillating statements, section 288 i resorted to in that event. The purpose of section 288, therefore, is different from section 145 of the Evidence Act. The one protects primarily the interest of the prosecution and the other is available to both. This view finds support from the following two authorities:-
In Emperor v. Zawar Rahman (I. T. R 180.4 Cal. 142) the question referred for decision of the Full Bench was:-
"Is counsel for the prisoner entitled to refer to the depositions for the purpose of contradicting the witness without having drawn the particular witnesse's attention to the alleged contradiction in his deposition, and without having given him the opportunity of explaining it "
Sir H. T. Prinsep, C. J., delivering the judgment for the Court, observed "On the point referred to us, I am of opinion that the course taken by the learned counsel for the accused, in this case, was not correct. He was not competent to tender the entire record of the proceedings of the Magistrate's Court, for the purpose of laying before the Jury any statements which might be contained therein as he thought proper. Unless the atten tion of a witness is expressly directed to any particular statement previously made by him, by reading it to him or allowing him to read it from the original deposition or an authenticated copy of it, any previous statement cannot be admitted in evidence in contradiction as to the statement that he has subsequently made. And in admitting any statement shown to he in contradiction to a statement made at a trial, that statement alone should be put in evidence and not the entire deposition. To allow any other course would not be fair to the witness and would represent him as having made a contradictory statement or statements which he aright have possibly been able to explain if he had a proper opportunity. Our answer is in the negative."
(Underlining is mine)
The other Judges concurred. In the case of Subblah Tevan and another v. Emperor (l29) M W N 789) it was held-
"Under section 145 of the Evidence Act, if the defence wishes to cross-examine a witness on a previous deposition with a view to discrediting him the Judge ought not to stop the examination and have tire whole deposition filed. The attention of the witness must be drawn to the discrepancies so that he may have the chance of explaining them."
The deceased sustained two penetrating wounds in the chest and the abdomen and five incised wounds on forehead, malleolus and right clavicle. The incised wounds having been on bony part of the body may have been caused by the barchhi ascribed to Abdul Aziz. In any case, it cannot be conclusively held that two different weapons were used in the violence. The doctor was not asked as to whether these injuries were caused by two different weapons. A sharp-edged pointed weapon like a barchhi can cause an incised wound of various dimensions depending upon the impact of the blow hitting bony part of the body. If the sharp pointed tip does not land on the bony part at right angle it may, cause an incised wound. 1t follows from it that a sharp-edged pointed weapon like barchhi can cause penetrating wound as well as incised wound, whereas an axe in no circumstances can cause two types of injuries as In this case. The incised wounds, including injury No. 6 on the forehead, skin deep, only caused with hatchet by a person with intention to kill, In my humble view, is not acceptable to common sense. It brings us to the complicity of Abdur Rehman, who is ascribed the role of causing the injuries with a hatchet. According to Modi s Medical Jurisprudence, filth Ed., p. 208, "The edges of wound made by a heavy cutting weapon, such as an axe, hatchet or shovel, may not be as smooth as those of a wound caused by a light cutting weapon, such a knife, razor, etc., and may show signs of contusion. Such a wound is as a rule, associated with extensive injuries to deep underlying structures or organs." This being so, the incised wounds on the victim cannot be conclusively said to have been caused by Kulhari. This view finds support from the statement of Ali Muhammad
"In all five spear blows were given to the deceased". The direct evidence against Abdur Rehman consists of the statements of Atta Muhammad, Ali Muhammad, brothers of the deceased and Ghulam Muhammad, discussed above. The two brothers played the role of bystanders which can hardly be en accord with the conduct of a brother. Atta Muhammad claims to have, repaired to the spot from his shop at a distance of two furlongs passing through the lanes and claims to have witnessed all the injuries and yet he- did not interfere having been threatened by Abdul Aziz. He stated that he saw the occurrence while standing in the ihata of Niaz Patwari with an intervening waist-high wall. He has tried to suppress the motive for the occurrence. Similarly Ali Muhammad has made an effort to deny the illicit relation of the deceased with Mst. Niaz Fatimah and has held out that the murder is the outcome of election rivalrly. This witness has stated that ail the blows were given to the deceased inside the Kotha. It is a matter of consideration whether the witness could see the occurrence from point No. 2 situate in the house of Niaz Patwari to the North of the Kotha where the offence was being committed. Ali Muhammad denied having stated before the committing Magistrate that some of the blows it were given to the deceased outside the Kotha. More than one inference can be drawn from this version either:
(i) The occurrence was not witnessed by him, therefore, he was not sure as to where it had commenced.
(ii) The witness realised that the interior of the Kotha could not be visible from the place where he claims to be, therefore, its beginning was shown in the open.
(iii) At 10 a.m. in the month of September, the presence of the deceased inside the Kotha may lend support to the plea of the defence and the presence of the deceased in the open may well shake off doubt about the deceased to have been in the company of Mst. Niaz Fatimah.
In any case this shiftly statement does not inspire confidence to be safely relied upon. In .the evidence of Ghulam Muhammad the circumstance of provocation cannot be kept out of consi deration. In that event one has to presume the strange coincidence of the presence of the father and son together to coincide with the visit of Mst. Niaz Fatimah to the house of the deceased. As stated above, the direct evidence is not supported by the character of the injuries on the deceased; therefore, the complicity of Abdur Rehman in the crime is not free from reasonable doubt and is entitled to acquittal. His appeal is accepted, and he is acquitted of both the charges.
3. For the reasons recorded earlier, the conviction of Abdul Aziz cannot be maintained under section 302 ,P. P. C. and is altered into one under section 304 (Part I), P. P. C., and is sentenced to seven years' R. I. In view of the conviction and sentence of the appellant under section 302 (Part 1,), P. P. C., section 449, P. P. C. is not applicable. His conviction and sentence under this section are set aside and he is acquitted of this charge. With this modification, his appeal is dismissed.
I regret not to find myself in agreement with my learned brother on the facts of the case in general and on the inter pretation of legal point in particular. Therefore, the case shall be placed before my lord the Chief Justice for disposal by a third judge.
.-In view of the difference of opinion between rue and my learned brother Abdul Ghani Khan Khattak, J. in the decision of this appeal, the case may be- laid before his Lordships the Chief Justice for nominating another learned Judge to dispose of the matter under sect: u 429 of the Criminal Procedure .Code.
.-Place it before Abdul Hamid, J.
To be fixed for hearing in the second week of January 1968
Eitizaz Hussain and Masud Ahmad for Appellant.
Muhammad Saeed Khan for Complainant.
Malik Muhammad Jaffar for the State.
-Abdul Aziz and his son Abdur Rehman were tried for offences under sections 302/34 and 449/34, P. P, C. by thn learned Additional Sessions Judge, Sahiwal,. Who convicted and sentenced them to suffer death for the murder of Tufail Muhammad under sections 302/34, P. P. C. They were sentenced to transportation for life plus a fine of Rs. 100, each and in default of payment of fine to suffer simple imprisonment for one month each under section 449/34, P. P. C. The sentence of life imprisonment was to take effect in the event of the death sentence not being confirmed by this Court. The condemned persons appealed and the case was also referred by the Additional Sessions Judge under section 374, Cr. P. C. to this Court for confirmation of death sentence. The appeal and the reference were heard by a Division Bench comprising Sajjad Ahmad and Abdul Ghani Khan Khattak, 3J. and as there was a difference of opinion, the case was referred by the learned Chief Justice to me for disposal. I propose to dispose of the appeal and the reference by a single judgment.
2. The prosecution story, briefly narrated, is that on September 14, 1965 at 10 a.m. the appellants assaulted Tufail Muhammad deceased in the door of his Kotha with hatchet and spear. Abdul Aziz speared the deceased in the chest and on the left side of the abdomen. Abdur Rehman struck the deceased with the hatchet on the head and gave a second blow with the hatchet on the leg of the deceased after he had fallen down. Ata Muhammad. Ali Muhammad, Ghulam Muhammad, Ajmair Khan and Wali Muhammad witnessed the occurrence. Tufail Muhammad died at the spot.
3. The motive for the murder was the suspicion that the deceased had illicit relations with Mst. Niaz Fatima, a daughter of Abdul Aziz and the sister of Abdul Rehman appellant.
4. After the occurrence, Ata Muhammad P. W. 7 left the place in order to lodge a report. He learnt of the presence of Assistant Sub-Inspector Muhammad Feroz Khan P. W. 12 in Chak No. 115/E. B. He went there and made the report Exh. P. A. to him on the 14th of September 1965 at 12 noon. The case was registered on the same day at Gaggu Police Station by Moharrir Head Constable Hayat Muhammad P. W. 3 at 12-30 p.m. The distance between the police station and the place of occurrence is 3 miles.
4. The Assistant Sub-Inspector proceeded to the spot, prepared the injury sheet and drew up the inquest report and then despatched, the dead body to the mortuary for post-mortem examination. He took into possession blood-stained earth from the spot and sealed it into a parcel. Ali Ahmad P. W. 10 and Karam Din P. W. 11 were associated in the investigation. The appellants were produced before the Investigating Dicer by Inayat Ali Lambardar. Abdul Aziz was wearing blood-stained shirt P. 1 and Chadder P. 2 which were taken into possession and sealed into a parcel. He led to the recovery of blood-stained spear P. 4 from inside his cattle-shed. The spear was taken into possession and .sealed into a parcel. Abdur Rehman produced blood-stained hatchet P. 3. from inside the roof of his kitchen. It was taken into possession and sealed into a parcel. The appellants were arrested on the 14th of September 1965.
5, The autopsy on the dead body of Tufail Muhammad was conducted by Dr. Muhammad Ashraf Khan P. W. 1 on the 15th of September 1965, at 7 a.m. The deceased had:-
1. A stab wound 1 x = " x penetrating the chest cavity over the 5th right costal cartilage which was completely cut under the injury. Lower lobe of right lung and right ventricle of the heart were injured.
2. ' A stab wound 1 " x 1/2" penetrating the abdomen just below the eyphisternum over the medial line. Left lobe of the liver under neath was cut through and through.
3. An incised wound 2 ' x 1' x bone deep cutting the outer table of the bone completely on the right upper lateral part of forehead.
4. An incised wound 1 x 1/8" x skin deep on the left upper lateral aspect of forehead.
5. An incised wound 4" x 1' x 1 deep over the right internal malleolus bone underneath was completely cut.
6. An incised wound 1 " x 1/8" x skin deep 1 above right external malleolus.
7. An incised wound " x x skin deep over the middle part of right clavicle.
Death, in the opinion of the doctor, occurred due to shock and haemorrhage resulting from injuries Nos. 1and 2 which were individually sufficient to cause death in the ordinary course of nature.
Abdul Aziz appellant was examined by Dr. Abdul Ghani P. W. 2 on the 15th of September 1965 at 9 a.m. He had an incised wound 1' x 1/8" x skin deep oblique over radial side of metacarpo phallangeal articulation of left index finger. The injury was simple and was caused by sharp-edged weapon.
6. Abdur Rehman appellant denied his participation in the occurrence. Abdul Aziz appellant pleaded sudden and grave provocation and the counter-version put forth by him is reproduced below for the sake of convenience: -
"I saw Tufail Muhammad deceased committing sexual intercourse with my daughter Ma. Niaz Fatima. I retreated and stood at short distance and started abusing Tufail Muhammad deceased. Tufail Muhammad and Ma. Niaz Fatima came out. Tufail Muhammad deceased was holding a sword in his hand at that time. He abused me also. He gave a blow with his sword on my hand. I picked up the weapon whichever came in my hand and which weapon was lying there. I caused injuries to the deceased-with that. I completely lost control of myself when 1 injured the deceased. Abdur Rehman accused was not with me at that time."
No evidence was produced in defence.
7. At the trial, Ata Muhammad P. W. 7, Ali Muhammad P. W. 8 and Ghulam Muhammad P. W. 9 gave direct evidence rata Muhammad runs a grocer's shop in the Ihata of Nizam Din in Chair No. 253/E. B. where the occurrence took place. He was present with Ajmair Khan at his shop when they heard a noise from the side of the Ihata of Tufail Muhammad deceased. They went in that direction and saw the appellants actually causing injuries to the deceased by means of spear and hatchet. The witness claimed to have seen the occurrence while standing in the Ihata of Niaz Patwari. The intervening wall being only waist-high, the witness could have seen the assault on the deceased. Ata Muhammad stated in the committing Court that the intervening wall is chest-high. Even if it be accepted that the intervening wall is that much high, still the witness could see the occurrence. Ata Muhammad saw only four blows being given to tine deceased by the appellants. The witness stated to the police In Exh. P. A. at portion marked A to A' that Abdur Rehman gave the hatchet blow to Tufail Muhammad on the head and Abdul Aziz gave the spear blow in the chest. The witness ascribed only one injury to Abdur Rehaam by means of hatchet. As regards Abdul Aziz the witness stated in his report to the police that he gave him a spear injury on the right ankle. The shop of this witness where he was present with Ajmair Khan Is situated at a distance of 2J furlongs from the spot. He was attracted to the spot do hearing a noise and must have taker some time to reach the Ihata of Niaz Patwari. If he ascribed a blow each to tile appellants which tae actually saw, we see nothing improbable about it. If, in his statement at the trial, the witness clarified that he saw four blows being inflicted, he cannot be discredited because this is, at best, an exaggeration from which it cannot - be legitimately inferred that he did not see the occurrence ad was necessarily a false witness. Ata Muhammad is a brother of the decease' person but that, by itself, is not sufficient to discard his testimony. Ata Muhammad also deposed about the story of the motive which is mentioned in his report to the police and although in cross-examination the witness stated that in reality the deceased had no illicit relations with last. Niaz Fatima but from the nature of questions put to the witness in cross-examination, it is amply clear that the deceased had lost his wife four-or five years before the occurrence, under consideration, and was mixed up with Mst. Niaz Fatima. Ali Muhammad P. W. 8 was present at his house when he heard Abdul Aziz appellant abusing Tufail Muhammad deceased and hurried to the spot. He too is a brother of the deceased person and worked as a labourer at the relevant time. He wits described as a Baildar by his brother but he himself denied that at the material time he worked as a 13 Baildar. The inconsistency in the evidence of this witness and his brother can this point, is not material. Ali Muhammad stated to the committing Magistrate that the first two blows were given to the deceased outside the. Kotha. The witness resiled from this position, in his statement, at the trial and said that all the blows were given to Tufail Muhammad inside the Kotha. Whether the deceased was given blows outside the Kotha gar inside is immaterial if it is proved that the appellants were his assailants. Ali Muhammad gave the number of spear injuries as five in his statement to the committing, Magistrate. Ali Muhammad was empty handed and if he did not intervene physically to leave his brother from aggression, we see nothing improbable about his conduct. Ghulam Muhammad P. W. 9 was present near the hand-pump in the Ihata of Niaz Patwari at 10 a.m. when he saw the occurrence. Ghulam Muhammad fully implicated the appellants for the crime committed. He was in the private service of the Patwari at the material time. He is a Rajput while the deceased was a Gujjar. The appellants are also Gujjars. Ghulam Muhammad did not say in his statement to the police or In his statement which was incorporated in the inquest report that lie stood near the wall of the lhata and watched the occurrence from that place. The omission, in our opinion, is not material. The witness omitted to mention in his police statement and also in his statement in the inquest report the seat of injuries. He also failed to clarify in the inquest report that the first two blows were given by Abdul Aziz appellant to the deceased. These are mere omissions. Even if the omissions be considered as contradictions, still it cannot be held that the contradictions were material. In my view, these 'inconsistencies do not go to affect the prosecution case on merits.
8. It was contended that Ghulam Muhammad gave evidence at the instance of Niaz Patwari. I do not agree. If Ghulam Hussain contested the last B. D. election against Ch. Rehmat A6 and Niaz. Patwari supported Ghulam Hussain that has nothing to do with the present case. The appellants were the helpers of Ch. Rehmat Ali who won the election by majority of one vote. Ghulam Hussain filed a petition and re-election was held. The suggestion in cross-examination that all the persons of the party of the complainant united against the helpers of Ch. Rehmat All if his helper is involved in a case was repelled by Ata Muhammad. Ghulam Muhammad is not proved to be in the party of the complainant. He is, in no way, inimical towards the appellants. The learned Additional Sessions Judge, therefore, rightly decided to rely on the evidence of Ghulam Muhammad who was named as a witness in the first information report which was lodged without any undue delay. The learned counsel, who argued the appeal, was unable to criticise the evidence of this witness successfully. It was pointed out in the course of arguments that the presence of Ata Muhammad at the time of the occurrence was excluded by the evidence of this witness. Ghulam Muhammad stated that Ata Muhammad arrived when the deceased was being assaulted by the appellants. The witness admitted in cross-examination that the four blows were given by the appellants to the deceased before the arrival of Ate Muhammad at the spot. The deceased had seven injuries on his person anti it cannot be held that by implication the presence of Ata Muhammad on the spot was virtually excluded in view of what Ghulam Muhammad stated at the trial.
9. Ghulam Muhammad stated to the committing Court that Abdul Aziz appellant gave a blow with the handle of the spear to MO. Niaz Fatima and she had run away. Ghulam Muhammad resiled from this position in his statement at the trial it'd was confronted with his earlier statement dated the 4th of January 1966. The defence tried to make capital out o1 the. admission and pressed it into service in support of the plea of sudden and grave provocation. The point was elaborately dealt with by Sajjad Ahmad, J. in paragraphs 9 and 10 of the judgment and I find myself in complete agreement with what is stated in these paragraphs. I am not prepared to believe that Mst. Niaz Fatima went on a visit to the house of her paramour at 10 a.m. so openly and had she been there in the kotha of the deceased she could not have possibly escaped. The counter version to that effect was not set up in the course of the investigation as is clear from the statement of the Investigating Officer and that was the reason why the clothes of the deceased were not sent to the Chemical Examiner for detecting semen. It was open to the appellants to have examined Mst. Niaz Fatima but nothing of the kind was done. The bare circumstance that the deceased was assaulted inside the Kotha in the month of September is not sufficient to lend support to the plea that Tufail Muhammad was closeted with Mst. Niaz Fatima inside the kotha at 10 a.m. for immoral purpose. I hold in agreement with Sajjad Ahmad, J. that the plea of sudden and grave provocation has not been substantiated.
10. Turning to the question whether Abdul Aziz appellant acted in the exercise of the right of self-defence, I should say at once that this plea is completely negatived on reference to the statement of Abdul Aziz appellant which he made in the commit ting Court. When called upon in the committing Court to explain the injury found on his person, Abdul Aziz appellant stated that he received the solitary injury on his person while cutting fodder. It could not have been caused by an assailant by means of a sword as alleged by Abdul Aziz in his statement on the close of the prosecution evidence at the trial. This defence is belated. The injury was 1" x 1/8" x skin deep over radial aide of left index finger. I, therefore, agree with the finding given by Sajjad Ahmad, J. that there was no satisfactory proof of the plea of self-defence taken by Abdul Aziz appellant.
11. I have carefully considered over the reasons given by my learned brother Abdul Ghani Khan Khattak, J. in coming to the conclusion that the complicity of Abdul Rehman appellant in the crime was not free from reasonable doubt and that Abdul Aziz appellant was entitled to the benefit of Exception 1 to section 300, P. P. C. but I am not persuaded to agree with the reasoning. I am of the view that both the appellants made concerned attack on the deceased against whose they harboured grudge because he carried on with the daughter of Abdul Aziz and the sister of Abdur Rehman appellant. They are proved t have a sufficiently strong motive to kill the deceased.
12. The offence committed by the appellants clearly fell under section 302, P. P. C. and not under section 304, Part I P. P. C.
13. The appellants were driven to commit the crime from al sense of honour and I thick the lesser penalty provided under, section 302, P. P. C. is the only appropriate punishment to which the appellants are entitled in law. In agreement with Sajjad Ahmad, J., and while maintaining the conviction of the appel lants under sections 302/34, P. P. C., I replace t he sentence of death and substitute it with the sentence of transportation for life in the case of both the appellants. The convictions and the sentences passed upon the appellants under section 449/34, P. P. C. are hereby set aside. The fine, if already paid, to be refunded to the appellants. The death sentence is not confirmed. The appeal is accepted to this extent only.
Appeal partly accepted.
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