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Criminal Appeal No. 49 of 1967, decided on 20th December 1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 13th April 1967, in Criminal Appeal No. 392 of 1966/Murder Reference No. 97 of 1966).

(a) Penal Code (XLV of 1860), S. 302‑Conviction for murder‑Refusal of all eye‑witnesses to support prosecution case‑Leave to appeal granted by Supreme Court to re‑examine evidence‑Constitution of Pakistan (1962), Art. 58 (3).

(b) Penal Code (XLV of 1960), S. 302‑Murder‑Foundation of accusation against accused confined almost wholly to ocular evidence‑Eye‑witnesses making conflicting statements, as to essential facts, at different stages of trial‑‑‑Court has discretion to rely on either of two versions‑Rejecting one of two statements, Court should however seek for an explanation for holding that variation had been introduced at trial in bad faith.

A witness who has made conflicting statements as to essential facts constituting a crime is, prima facie, unworthy of reliance, in respect of all his statements. Cases are not unknown where witnesses have departed from earlier versions given by them, also on oath, for bona fide reasons, i.e., reasons which are foreign to a mere desire to divert the 'course of justice, from personal or venial motives. In the exercise of the discretion which the law allows, a Sessions Court may reject a witness's statement made before it, and may instead rely on a different. statement, made earlier, in the committing Court, on oath and under the liability to cross‑examination, but for the judicial exercise of such discre tion, it is necessary that the circumstances, should be examined with thoroughness, and apart from other considerations, such as the presence of other reliable evidence, an explanation should be found for holding that the variation has been introduced at the trial in bad faith. Such an explanation has necessarily to be offered by the prosecution when it seeks reliance upon one of two varying depositions, for otherwise the Court would have no firm indication as to which version lies closer to the truth, in cases, where the foundation of the accusation is confined, almost wholly, to the ocular evidence.

Alim v. State P L D 1967 S;C 307 ref.

Muhammad Nadir, Advocate Supreme Court for Appellant.

Major Mufti Nazar Muhammad, Advocate Supreme Court instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing: 20th December 1967.

CORNELIUS, C. J

.‑Leave was granted to the appellant, Ghulam Muhammad on a Jail Petition to appeal against his conviction and sentence of death for the murder of one Mst. Jindan allegedly committed on the 30th May 1965, at a place in the village of Nawan Janubi in the Dera Ghazi Khan District.

The background of the case is as follows. Mst. Jindan was aged about 40 and had been left a widow by the murder of her husband Wali, some three years before she was herself killed, at the hands of Nabla, her brother. Before that, Wali bad murdered Elahi, another brother of Mst. Jindan. She had been abducted by Wali from her first husband Balu some 25 years earlier, and bad been living with Wali as his wife since then except for a period some 8 years before, when she had been abducted by one Kbidar, who himself was murdered by Wali. After the death of her husband Wali, the latter's cousin Ghulam Muhammad, the present appellant, continued to live in Mst. Jindan's house as he had been doing before. He is aged 25, and the story is that he had been pressing Mst. Jindan to marry him, and she had consistently refused his suit. There were five children of Mst. Jindan living in the house, these being Ali Muhammad, P. W. 8, aged about 16, Ashiq Hussain, P. W. 9. aged about 10, Mst. Phapan, aged about 8 and two younger sons. The murder took place allegedly at or about sunset, not in the house, but at a tandur some 20 feet away, where Mst. Jindan had gone taking with her some kneaded flour in a tray and a jug of water with the intention of baking bread. Ghulam Muhammad is said to have pressed her again to marry him, and when she refused, he gave her two lathi blows on the head, each of which caused extensive fracture of the skull and the facial bones. Her three children above‑named were said to be eye witnesses of the occurrence, and two other alleged eye‑witnesses were cited, namely, Chuhar, P. W. 10 and Jetba, P. W. 11. A report was made to a Head Constable Muhammad Sarwar, P. W. 14, the same day, at another basti in the same village some three miles away, at 9 p.m. In this report it was stated that after committing the crime, Ghulam Muhammad had gone away. He had to appear in a Court at Dera Ghazi Khan the following morning, but it could not be said whether he would go there or in some other direction. Actually, Ghulam Muhammad is said to have appeared in that Court on the 3rd June 1965, when he was placed under arrest and he was in the judicial lock‑up, when Head Constable Muhammad Sarwar arrested him for the murder of Mst. Jindan. On the same day, he led the Police party to a jal tree about 12 miles from the scene of the crime into which he said he had thrown his stick, and the iron‑shod lathi, Exh. P. 1 was recovered from this tree. The Serologist found it to be stained with human blood.

In the committing Court, where their statements were recorded in September and November 1965, all the eye‑witnesses made straightforward statements to the effect that they had seen the fatal blows being struck with their own eyes. Ali Muhammad, Ashiq Hussain and Mst. Phapan being in the house only a few feet away were perfectly natural witnesses, but Chuhar and Jetha only came to the spot on hearing the alarm and their story that they saw the two blows being struck is not easy to accept. It is probable that they were the first to appear on the scene after the crime, and since the other witnesses were all children, they agreed to give direct evidence in order to strengthen the case.

At the trial however, each of these witnesses resiled from his or her statement before the committing Magistrate is a greater or less extent. Ali Muhammad said that he himself was awake, but Ashiq and Mst. Phapan were asleep. He heard Ghulam Muhammad asking the mother to marry him. He also heard her refusing the offer, but denied having seen the killing. He said instead that it was Chuhar who came and told him that his mother had been killed by Ghulam Muhammad, and thereupon he and Chuhar went to Nur Muhammad Lambardar P. W. 13, and after that to the police and the Head Constable recorded a statement from him, which he thumb marked. He, however, denied having said that he had seen Ghulam Muhammad giving lath blows to his mother. Ashiq Hussain said he was asleep, when the murder took place, and was awakened by Ali Muhammad, who told him about the murder. A similar state ment was made by Mst. Phapan Chuhar denied having seen the blows, but said that on hearing the alarm at a time when he was asleep, he went with Jetha to the spot and saw Ghulam Muhammad running away from the scene of the crime. He went further in casting doubt upon his own earlier statement when he said that it was dark, that the culprit was 20 Karams away from him and had his face muffled and that he only recog nised him by his "stature". Jetha supported this statement at the trial, saying that he had only seen the back of the man.

The Lambardar Nur Muhammad also introduced a significant variation into his evidence from what he had stated to the committing Magistrate. In the earlier proceedings he had

said that Ali Muhammad and Chuhar came to him and told him that Ghulam Muhammad had killed Mst. Jindan, but at the trial he said that it was Jetha who gave him this information in the first instance.

All these witnesses were cross‑examined in relation to their earlier depositions given before the committing Magistrate which they said were composed of things which they were told by the police to say. It was stressed in the cross‑exam . nation that there had been an arrangement among all these witnesses to resile from their earlier statements, and it was brought out in cross‑examination that in all probability this was the work of Chuhar, who is cousin to the deceased Wali and had made compromise with Ghulam Muhammad, who is also related to him. The suggestion made to this effect to the witness Ashiq was denied, but there seems little doubt that Chuhar is the person who has been looking after the orphaned children after the death of their mother. The very young children Ashiq Hussain and Mst. Phapan asserted that the five of them are living by themselves in the house with no one to look after them. That is quite impossible to believe and on the other hand it is entirely natural that their father's cousin Chuhar should be giving them the protection and support that they need.

The trial Court came to the conclusion that a compromise had been made and the witnesses had gone back on their earlier statements because Ghulam Muhammad was a cousin of their father. The Sessions Judge remarked that these young children could not be expected to be living unprotected by some of their paternal relations. His judgment, however, does not mention the direct suggestion that Chuhar was responsible for the visible variation from the earlier statements. In the High Court, the learned Judges thought that the eye‑witnesses had resiled from their earlier statements in order to favour Ghulam Muhammad and without further examination of the matter they declared their reliance upon the statements made in the committing Court. Leave to appeal was granted to re‑examine the evidence in view of the refusal of all the eye‑witnesses to support the case, and it was added that "the circumstantial evidence of the recovery A of a blood‑stained lathi seems weak."

On being taken through the record by Mr. Muhammad Nadir for the appellant with the assistance of Mr. Nazar Muhammad Mufti for the state, we find that there in a clear explanation for the change made by the eye‑witnesses in their statements at the trial. Such an explanation has necessarily to be offered by the prosecution when it seeks reliance upon one of two varying depositions, for otherwise the Court would have no firm indication as to which version lies closer to the truth, in cases, such as this, where the foundation of the accusation is confined, e almost wholly, to the ocular evidence. A witness who has made conflicting statements as to essential facts constituting a crime is, prime facie, unworthy of reliance, in respect of all his statements. Cases are not unknown where witnesses have departed from earlier versions given by them, also on oath, for bona fide reasons, i.e., reasons which are foreign to a mere desire to divert the course of justice, from personal or venial motives. In the exercise of the discretion which the law allows, a Sessions Courts may reject a witness's statement made before it, and may instead rely on a different statement, made earlier, in the committing Court, on oath and under the liability to cross‑examination, but for the judicial exercise of such discretion, it is necessary that the circumstances, should be examined with thoroughness, and apart from other consideration, such as the presence of other reliable evidence, an explanation should be found for holding that the variation has been introduced at the trial in bad faith. (See the judgment of this Court in the case of Alim v. State (P L D 1967 S C 307)).

There seems no doubt that the change in this case has been brought about through the influence of Chuhar, a cousin of Wali, who is, in all probability, giving protection and support to the five orphaned children in this case. This has been done out of personal motives, viz., his relationship with the accused. There being this explanation apparent from the record and it being clear also that the three children, namely, Ali Muhammad, Ashiq Hussain and Phapan were natural witnesses to the crime, which occurred within a few feet of their house, and at a time when they should not have been asleep since their evening meal was still to be cooked, there need be no hesitation in believing that the prompt report made in this case supported by their evidence in the committing Court represented the truth. There is corroboration provided by the recovery of a blood‑stained lathi at the instance of Ghulam Muhammad on the day of his arrest. In the circumstances of the case, nothing stronger in the shape of corroborative evidence was to be expected.

From the medical evidence it is clear that two very heavy blows were struck on the head of the woman with an iron shod lathi from which the intention could safely be inferred to be the causing of her death. The appellant has rightly been convicted of murder and we hereby dismiss his appeal.

K. B. A. Appeal dismissed.

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