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Criminal Appeal No. 244 of 1965, decided on 20th December 1967.

S. 326 ‑ Considerable delay in F. I. R. unexplained Prosecution witnesses changing statements from time to time, endeavouring to patch up weak links in prosecution case and resiling from their statements before committing Magistrate‑No material corroboration of earlier statements avail able‑Accused given benefit of doubt and acquitted.

Qutba v. The Crown P L D 1954 F C 197 and Subhan Khan v. The State P L D 1960 Lah. 1 rel.

Mohd. Hayat Junejo for Appellants.

A. H. Memon for A. A.‑G. for the State.

Date of hearing : 13th December 1967.

Ghazi aged 27 years, Dadan aged 23 years (both brothers and the sons of Ghulamullah Jalbani), Ramzan aged 32 years, son of Ali Muhammad Jalbani (he is the cousin of Ghazi and Dadan accused) are convicted under section 326/34, P. P. C. by the learned Sessions Judge, Larkana for causing grievous injuries to Usman P. W. 1 and each sentenced to four years' R. I. and a fine of Rs. 50 each, and in default to three months' R. I. The accused, through this appeal have assailed their convictions and sentences.

2. The brief facts of the prosecution case, as disclosed in the F. I. R., were that at bipahri time (about 2 p.m.) on 23‑6‑1964, the accused in furtherance of their common intention attacked Usman P. W. 1, while he was grazing cattle on his lands, and inflicted on his person hatchet injuries. On receiving these injuries Usman P. W. is alleged to have fallen down and become unconscious. F. I. R. Exh. 5‑A was lodged by Fazal Muhammad P. W. 2, an uncle of Usman P. W. 1 at 7 p.m. on 23‑6‑1964 at Ratodero Police Station, which is alleged to be 1 miles from the place of occurrence. Zahiruddin S. H. O. P. W. 6, after recording the F. I. R. proceeded to the place of occur rence and on arrival found Usman P. W. lying injured in his fields. After preparing his injury report Exh. 9‑A, he sent Usman P. W. to the hospital.

3. Dr. Muhammad Bakhsh Exh. 11, Medical Officer, Ratodero Hospital, examined Usman P. W. 1 on 23‑6‑1964 and found on his person the following injuries:

"(1) A vertical incised wound 2 x " x bone deep, over the left fronto‑parietal region, cutting the frontal bone. Piece of the bone removed from the wound.

(2) An incised wound 1"x 1/10"x muscle deep, oblique in direction, over the forehead on right side.

(3) A contused wound 1" x 1/4" x muscle deep, 3/4" lateral to the outer end of right eyebrow.

(4) A linear abrasion 1 ", long, over the back on left side.

(5) An incised wound 3 x 3/4" x 1 deep over the back on the left side of the chest."

According to him injuries Nos. 1, 2 and 5 were caused by a sharp‑cutting weapon, such as hatchet, and injuries Nos. 3 and 4 were caused by a blunt weapon such as lathi. Injuries Nos. 1 and 5 only were grievous. The dying declaration of Usman P. W. 1 was also recorded at Civil Hospital at 9‑15 p.m. on 23‑6‑1964 by the Civil Judge and F. C. M., Ratodero, on the request of S. H. O. Police Station Ratodero, after the latter had received an intimation from the Medical Officer Muhammad Bakhsh Exh. 11 that the condition of Usman P. W. was serious.

4. The motive for the offence was that, about 15 days prior to the occurrence, the cattle of Ramzan accused had wandered into the lands of one Rasool Bakhsh, a cousin of Usman P. W. 1, who drove them to a cattle pound but Ramzan and Ghazi accused are alleged to have rescued them, with the help of one Dost Ali, after they had a fight with Rasool Bakhsh. Proceedings under section 107, Cr. P. C. are then alleged to have been instituted by the parties against each other which, however, they compromised before the Mukhtiarkar and F. C. M., Ratodero. Usman P. W. 1 was a witness in these proceedings against Ramzan and Ghazi accused on account of which it is alleged they nursed a grudge against him.

5. The prosecution relied on the ocular testimony of three eye‑witnesses namely, Usman P. W. 1, Fazal Muhammad P. W. 2 and Abdul Waheed P. W. 4. As already stated Fazal Muhammad P. W. 2 is the uncle of Usman P. W. 1 while Abdul Waheed and Fazal Muhammad P. Ws. are inter related as cousins. It may be mentioned that both parties are also inter‑related. Ramzan accused is the brother‑in‑law of Fazal Muhammad P. W. while Dadan accused's wife is the daughter of his brother. Fazal Muhammad and Abdul Waheed P. Ws. did not support the prosecution at the trial and at the request of learned A. P. P. they were allowed to be cross‑examined. The statement of Abdul Waheed P. W. was also transferred to the Sessions file under section 288, Cr. P. C. at the request of learned A. P. P.

6. Usman P. W. 1 stated at the trial, that, Ghazi and Ramzan accused inflicted on his person hatchet injuries while Dadan accused had injured him with a lathi. According to him he raised an alarm which attracted Fazal Muhammad and Abdul Waheed P. Ws. and one Kasim to the scene of occurrence. As against this Fazal Muhammad P. W. stated that when he arrived at the scene of occurrence he saw all three accused giving hatchet blows to Usman P. W. Usman P. W. further stated that after receiving these injuries he became unconscious and did not regain senses until he reached the hospital. In cross‑examination he stated that on receiving the first blow on his head, he was felled down and had become uncon scious immediately. He further stated that he could not say as to who had arrived at the scene of occurrence as he had become unconscious. He further stated that the scene of occurrence was not visible from his village, which was about two furlongs away, because of the high banks of an abandoned canal which intervened between the scene of occurrence and his village. In the dying declaration he stated that Ghazi and Ramzan accused had given him hatchet blows, while Dadan accused had given him stick blows. He further stated that after receiving these injuries he started crying which attracted his uncle Fazal Muhammad P. W. to the scene of occurrence. He further stated that the accused, after giving him these injuries, attempted to throw him in a nearby well but the arrival of Fazal Muhammad and Abdul Waheed P. Ws. and one Kasim, took them by surprise and so they left him and ran away. In his statement before the Com mitting Magistrate he stated that, after receiving hatchet injuries, at the hands of all three accused, he raised an alarm and had then become unconscious immediately. He further stated that he could not remember as to who was attracted to the scene of occurrence. The learned counsel for the accused argued that on his own showing Usman P. W. 1 had become unconscious, after having received the first hatchet blow on his head, and therefore, the details given in his dying declaration appears to be the work of another agency. The learned counsel further argued that there was no men tion in the F. I. R. that Usman P. W. was given laths injuries by any of the accused but the same was introduced in the dying declaration and deposition of P. Ws. Subsequently in an attempt to get support from the medical evidence. The objections of the learned counsel appear to be will founded. The witness has changed his statements, from time to time, in an endeavour to patch up the weak links in prosecution case. It appears that the names of accused were mentioned in the F. I. R. after due deliberation, on account of suspicion, as the parties are admittedly on inimical terms. For this conclusion enough support is found from the fact that the occurrence had taken place at about 2 p.m. but the F I. R. was lodged at 7 p.m. when the police Station was only 11, miles away from the scene of occurrence. The prosecution has failed to account for the delay of about 5 hours. For all these reasons I consider that the evidence of Usman P. W. cannot safely be relied upon to the prejudice of accused.

7. Fazal Muhammad P. W. 2 stated at the trial, as well as in the Court of Committing Magistrate, that when he was attracted to the scene of occurrence, by the alarm of Usman P. W., he saw all three accused giving hatchet injuries to Usman. He further stated that Usman was felled down as a result of the hatchet blows, and thereafter, became unconsci ous. He further stated at the trial that when he arrived at the scene of occurrence, there was no one else present except Usman P. W. who was lying injured. According to him he had mentioned the names of the accused in the F. I. R. on account of enmity. Although he was declared hostile and was allowed to be cross‑examined, he maintained that the names of the accused were mentioned by him in the F. I. R. on account of enmity.

8. Abdul Waheed P. W. 4 also did not support the prosecution at the trial and was allowed to be cross‑examined at the request of the learned A. P. P. His statement was brought on the Sessions file under section 288, Cr. P. C. The witness, however, maintained that on account of enmity he had deposed against the accused in the Court of the learned trial Magistrate. He further stated that on enquiry Usman P. W. had told him that he had received injuries at the hands of some graziers. The learned Sessions Judge, never theless, relied on the evidence of these two P. Ws., which they had given before the Committing Magistrate, while dis regarding their statements made at the trial. The learned counsel for the accused argued that such an approach on the part of the learned Sessions Judge was against the established principles for the safe administration of criminal justice. He further argued that it would be altogether unsafe to rely on one of the statements of a witness, when he had conveniently made materially different statements on oath from time to time. In support of his contention the learned counsel invited my attention to a reported judgment of the Federal Court of Pakistan reported as Qutba v. The Crown (P L D 1954 F C 197). At page 202 their Lordships were pleased to observe :‑

"It would appear that the doubts affecting the testimony of Ramzan and Mst. Rahmate were resolved in favour of the prosecution. The law requires that the benefit of such doubts should go to the accused person. They cannot be resolved by mere assumptions regarding the motives by which witnesses might have been guided in making variant state ments. Any indication that a witness has adapted his testimony in relation to any motive other than a desire to disclose the truth so far as is known to him throws a doubt on the statement which must go to the benefit of the accused, unless resolution of the doubt be possible with reference to other credible evidence or established circum stances.

On this part of the case, it thus becomes clear that the two conflicting statements of Khushi Muhammad stand on the record, on a part with each other, neither being streng thened by any evidence which has already been considered. The later statement on the contrary is greatly weakened by its being inconsistent with three concrete circumstances to which reference has already been made. If the case rested here, the accused would be clearly entitled to be acquitted."

In another judgment of this Court reported as Subhan Khan v. The State (P L D 1960 Lah. 1) it was observed‑

"The value to be given to statements transferred under section 288, Cr. P. C. will depend on how far those state ments can be believed and accepted when read in the context of the whole case and on the amount of strength which they can receive from other evidence available in the case. Standing by themselves, such statements do not furnish a safe guide for forming conclusions about the guilt or innocence of an accused person.

Primarily it is the evidence given at the trial which can be considered and used against an accused person. Evidence of a witness recorded during the commitment inquiry and transferred tinder section 288 can be transferred, in the direction of the trial Judge, and treated as substantive evidence, becoming a part of that witness's statement, but this evidence is subject to same, if not severer, tests of appreciation and evaluation as any other evidence. If a statement made during commitment inquiry is repudiated at the trial its evidentiary value is certainly not enhanced but is definitely lowered as, amongst other things, it is the statement of a person who, in view of his conduct, cannot be credited with any scruples for truth and integrity'. Technically there may be no legal objection for a convic tion being based on such depositions transferred under section 288, Cr. P. C. But as rule of prudence, now well recognized, Courts must look for positive and material corroboration of such statements. The basic thing to con sider as in all types of evidence is, whether the evidence furnished by these statements is true. The mere fact that a witness has gone back on his previous statement and is helping the accused for one reason or another will not raise any presumption that the previous statement is true and the statement made at the trial is false as both may be untrue."

9. Fazal Muhammad and Abdul Waheed P. Ws. completely resiled from their statements, which they had made before the Committing Magistrate, at the trial. I have anxiously tried to look for some positive and material cor roboration for their statements made before the Committing Magistrate but I have failed to find any. On the contrary, their statements made at the trial Court appear to be more plausible. It would be recalled that the occurrence had taken place at about 2 p.m. but the F. I. R. was lodged at 7 p.m. at Ratodero Police Station which is only 11 miles from the scene of occurrence. The delay of five hours has not been accounted for by the prosecution. The parties are admittedly on inimical terms but are also inter‑related. Usman P. W. is the nephew of Fazal Muhammad P. W. 2 while Abdul Waheed P. W. 4 is the cousin's son of Fazal Muhammad Ramzan accused is the brother‑in‑law of Fazal Muhammad P. W. while Dadan accused's wife is the daughter of Fazal Muhammad's brother. In this view of their relationship with the parties, it appears that Fazal Muhammad and Abdul Waheed P. Ws. had initially favoured the prosecution because Usman P. W. was comparatively closely related to them than the accused, but by the time the case reached the trial stage, it seems their conscience got the better of them and they completely departed from their statements in favour of the accused. In any case they cannot be safely relied upon because it might well be, that both the statements which they had made, one in the Committing Court and the other at the trial Court were untrue. I have already disbelieved Usman P. W. and have failed to find any positive and material corroborative circumstance in support of the statements of Fazal Muhammad and Abdul Waheed P. Ws. which they had made in the Court of Committing Magistrate. Therefore, there arises a clear doubt in regard to the prosecution case and its benefit, in view of the aforesaid judgments of the Federal Court of Pakistan and of this Court, must go to the accused. There remains no evidence on record which could persuade me to maintain the convictions and sentences of the accused. In the result their appeals are allowed and they shall be released forthwith unless they are required in some other case. If they are already on bail their Bail Bonds shall stand discharged forthwith.

Appeals allowed.

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