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Criminal Revision No. 626 of 1963, decided on 1st October 1968.

S. 379‑---Prosecution case supported by evidence‑--Contradiction, deliberately introduced by one of prosecution witnesses in his cross‑examination to harm prosecution case‑--Held, do not affect prosecution cure.

State v. Banaras P L D 1967 Pesh. 80; Fazalul Haq v. The State P L D 1959 Dacca 931 and Muhammad Aslam and another v. The State P L D 1968 Lah. 961 ref.

Z. N. Tahir for Petitioner,

Ch. Qamur‑ud‑Din for the State.

Mahmood Ahmad alias Mooda petitioner was sent up to stand his trial in the Court of Ch. Muhammad Siddiq, Magistrate with powers under section 30, Cr: P. C, Sialkot on a charge under section 379, P. P. C. The Trial Court convicted the petitioner for the same offence and sentenced him to 2; years' R. I., on the Nth of December 1962. In appeal, against his conviction and sentence Mr. Muhammad Humayun Khan, Additional Session; Judge, Sialkot, reduced his sentence to one year's R. I. on the 22nd of May 1963.

2. On the 25th of November 1962, at about 2‑15 p.m. Muhammad Shafi (P, W. 1) and his nephew Abdur Rehman (P. W. 3) were waiting for a bus at the bus stand Daska. There was a rush of people waiting for the bus Oil the arrival of the bus the management, without issuing the tickets at the window, asked the passengers to get in the bus. The passengers were trying to enter the bus. In this confusion, while Muhammad Shah was still outside he felt that his rocket was tampered with. He saw Mahmood Ahmad accused removing his handkerchief from the pocket of his waist‑coat which he was wearing under the shirt. This handkerchief allegedly contained Rs. 17 which consisted of one ten‑rupee currency note (Exh. P. 2), one five rupee currency note (Exh. P. 3) and two one‑rupee currency notes (Exhs. P. 4/1‑2). Muhammad Shad held the accused and raised alarm. The currency notes wrapped in the handkerchief were still in the hand of the petitioner. Abdur Rehman joined Muhammad Shafi and secured the petitioner. The petitioner alongwith the stolen property and a blade (Exh. P. 5) was produced at Police Station Daska. Chaudhry Ghulam Rabbani, Sub‑Inspector, recorded the report of Muhammad Shafi at 2‑30 p.m.

3. Muhammad Shafi (P. W. 1). Abdur Rahman (P. W. 2) and Ch. Ghulam Rabbani (P. W. 3) were examined in support of the prosecution case. The petitioner stated in Court, under section 342, Cr P. C. that:‑‑‑.

"I was sitting in a bus of G. T. Bus Service at Daska. Safdar Shah Constable brought me to Police Station Daska and. produced me before the Sub‑Inspector Ch. Ghulam Rabbani."

He further stated that‑

"Handkerchief (P. 1), piece of blade (P. 5) do not belong to me. Currency notes P. 2, P. 3 and P. 4/1‑2 are mine. They were taken into possession by the Police as a result of my personal search."

Again he said:‑‑‑

"Eight or ten days before the occurrence I had a quarrel with Muhammad Riaz who is the sore of Muhammad Shafi in Gujranwala. On hearing tile noise Muhammad Shafi and Abdur Rehman also came to the spot and they gave me beating. Since then he entertained an ill‑will against me as a result of which this false case was made out."

In defence, lie produced Muhammad Amin (D. W. 1) and Ijaz Ahmad (D. W. 2), who deposed that in their presence when a bus reached the Daska Stand a Constable pulled out the petitioner from the bus and took him to the Police Station. Muhammad Amin, 1), W, also added that two public then were also with the constable to take the accused. Muhammad Nazir (D. W. 3) supports the plea of altercation of the petitioner with the son of Muhammad Shafi.

4. The learned counsel for the petitioner took support from the statement of Muhammad Shafi (P. W. 1) in cross‑examination to the effect that:‑

"I had mark of identification on my handkerchief and this mark was that it was burnt from one corner, while smoking a cigarette (handkerchief P. 1 does not bear any such mark). Handkerchief P. 1 has been shown to me and since it does not bear the mark of any identification it does not belong to me. My attention has been invited towards the currency notes P. 2, P. 3 and P. 4. I am sure currency note of rupees ten is not the same note which was removed from my pocket. The stolen ten‑rupee currency note was a bit dirty and as such I can say that currency note P. 2 is not the same currency note. Similarly I cannot say if currency notes P. 3 and P. 4 are the same which were stolen from my pocket at the time of occurrence."

Having made this concession in favour of the petitioner, Muhammad Shafi (P. W. 1) was declared hostile and the P. S. I. was allowed to cross‑examine the witness. The ]carried counsel for the petitioner contended that this was not an illegality but it was not proper for the trial Court to declare the witness hostile during cross‑examination. P. W. Abdur Rehman stated categori cally that he and Muhammad Shafi, "in the confusion, made an attempt to get into the bus. Muhammad Shafi raised an alarm and the noise attracted my attention as I was also standing near Muhammad Shafi. Muhammad Shafi caught hold of the accused and alleged that he picked his pocket and removed his currency notes. The handkerchief in which currency notes were tied was in the hand of Mahmood accused and Muhammad Shafi was holding the accused., The accused was then taken to Police Station Daska where he was produced before the police and the handkerchief with the currency notes was also produced. An amount of Rs. 17.00 consisting of a ten‑rupee note, one five rupee note and two one‑rupee notes were found in the handkerchief. The handkerchief is P. 1 and the currency notes are P. 2, P. 3 and P. 4/1‑2. They were taken into possession by the Police vide memo. Exh. P. A. (to which he is a marginal witness)."

5. In State v. Banaras (P L D 1967 Pesh. 150) at p. 87 para. 10 the observations are:‑

"Section 154 of tile Evidence Act leaves the matter entirely to the discretion of the Court and there is no legal objection to such permission being given, which could hardly be refused when any witness makes an unexpected statement adverse to the case of the prosecution. We have given our thoughtful consideration to the contention raised by the learned counsel for the respondent and are constrained to repel the, argument oil this point."

Thus, Muhammad Shafi having made an unexpected statement adverse to the prosecution case. The P. 1 got him declared hostile. In Fazlul Haq v. The State (P L D 1959 Dacca 931) at page 932 (d) it has been held that:‑

"Where a witness is cross‑examined by the party calling him his evidence is not to be rejected either in whole or in part, but the whole of the evidence so far as it affects both parties, favourably or unfavourably, must be taken into account and assessed like any other evidence for whatever it is worth".

Again, in Muhammad Aslam and another v. The State (P L D 1968 Lah. 964) at page 968 it has been observed:‑

"The contradictions, in our view, do not go to affect the prosecution case on merits as we have gained the impression after going through the evidence that some of the contradictions were introduced deliberately, particularly, in the case of Hakim Muhammad Saeed."

"Such contradictions, held did not affect the case on merits'." Summing up the case, the evidence of the prosecution case is supported by the evidence of P. W. Muhammad Shafi and P. W. Abdur Rehman. The accused was arrested at the spot with the stolen money and taken to the police station alongwith the blade with which he had cut the pocket of the waist‑coat of Muhammad Shah. After reading the evidence of P. W. 1 one gains inn impression that the contradictions in his cross‑examination were introduced by him deliberately to harm the prosecution case and such contradictions do not affect the merits of the case.

6. On overall consideration of the prosecution evidence and the defence version I see no merit in this revision-petition which is hereby dismissed:

Petition dismissed.

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