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Petition for Special Leave to Appeal No. 212 of 1967, decided on 2nd October 1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated 19th May 1967, in Criminal Appeal No. 461 of 1966/Murder Reference No. 162 of 1966).

S. 288‑Hostile witness‑Appraisal of evidence‑‑Prosecution witness making statement favouring prosecution story in committing Court but turning hostile in trial Court‑Transfer of statement made in committing Court as evidence under S. 288‑Witness's refusal to support prosecution at trial stage, held, cannot 5e pressed into service to belie prosecution allegation, in circumstances of case.

S. 27‑Murder‑ Discovery Accused's statement to police leading to discovery of dead body of victim from a disused well‑No explanation as to how accused came to know of dead body in well‑Presumption arises that 6m threw dead body in well in dismembered state‑4‑Penal Code (XLV of 1860), Ss. 302 & 201.

Chaudhari Nazir Ahmad Khan, Senior Advocate Supreme Court, ‑instructed by Muhammad Nazar Khan, Senior Attorney for Petitioner.

Nemo for the State.

Date of hearing: 2nd October 1967.

.‑The petitioner was acquitted of the charge of murder by the High Court of West Pakistan on appeal and reference. The High Court, however convicted him under section 201 of the Pakistan Penal Code and sentenced him to seven years' rigorous imprisonment. This is a petition on his behalf for special leave to appeal from the order of the High Court.

Mr. Nazir Ahmad Khan has strenuously argued in support of the petition that the finding of the High Court that the petitioner had committed an offence under section 201, P. P. C., was vitiated by a misreading of the evidence on record. He has drawn our attention in this regard to the' relevant evidence of Allah Jowaya (P. W. 16), Sultan Khan (P. W. 17), and Zahur Ahmad, Sub‑Inspector (P. W. 18). We are unable to accede to the contention, however, that there has been any misreading of the evidence of these witnesses by the learned Judges of the High Court. On the contrary, they have discussed the evidence given by these three witnesses on all relevant points, and have reached the conclusion that their statements to the effect that the petitioner led to the discovery of the dead body of the deceased, from a disused well after making a statement to the Police, were acceptable.

The learned counsel adopted the alternative argument that the learned Judges had not given due weight to the admission made by Allah Jowaya in certain proceedings before a Tribunal in this very case, that when they arrived at the disused well, some constables and other persons were already there. The witness denied that he had made that statement and he was duly contradicted by his previous statement on this point. Apart from the fact that .the previous statement was only used to contradict the witness at the trial and could not be treated as substantive evidence, the learned Judges met this objection by observing that the constables and others might have been sent as an advance party by the Sub‑Inspector to that well, after the accused had given requisite information to the Police. Unfortunately, no question was put on this point to the Sub. Inspector and so the matter must remain somewhat uncertain. However, the point has been taken into account by the High Court and it could not be said that any material aspect of the case has been ignored.

It may be mentioned that Sultan Khan (P. W.) had been declared hostile to the prosecution in the trial Court and was cross‑examined by the learned Public Prosecutor. It was then established that he had made a statement in the committing Court favouring the prosecution story and his statement made, before that Court was transferred as evidence under section 228 of the Code of Criminal Procedure. His refusal to support the prosecution, therefore, at the trial stage, cannot be pressed into service to belie the prosecution allegation in the circumstances of this case.

The points raised by Mr. Nazir Ahmad Khan to justify this petition for special leave have all been dealt with by the High Court and they relate to appreciation of the evidence on which the conviction rests.' We see no ground for re‑appraisal of that evidence by this Court.

The further point taken by the learned Counsel that the facts established did not prove the offence under section 201, P. P. C., does not appear to us to have substance. In the absence of any explanation by the accused as to how he came to have knowledge of the dead body in the disused well, it may fairly be presumed that he was the person who had thrown the body in a dismembered state into the well. This conclusion would suffice to prove the case under section 201, P. P. C. against him.

The petition is dismissed.

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