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Criminal Appeal No. 516 and Murder Reference No. 21 of 1974, decided on 26th February 1975.
S. 288‑Statements before committing Court‑‑Evidentiary value of statements transferred to Sessions file under S. 288, Cr. P. C.‑‑‑Such statements can bet made basis for conviction of accused.
‑‑---S. 302‑Murder‑Benefit of doubt‑Evidence, appreciation of Prosecution witnesses resiling at trial from statements recorded before committing Court and such statement transferred to trial Court-----Statements finding no corroboration from any independent source‑Possibility that deceased persons were put to death under cover of darkness by some unknown assailants, unseen by any person, not ruled out‑‑Accused given benefit of doubt and acquitted in circumstances.
Alim v. The State P L D 1967 S C 307 ; Muhammad Ahmad alias Mahanda v. The State P L D 1970 S C 72 and Munawar Khan and 2 others v. The State P L D 1975 Lah. 175 rel.
Yasin Wattoo for Appellants.
Sh. Zamir Hussain for the State.
Date of hearing : 26th February 1975.
---‑Salahoon son of Daim, aged 80 years and his son Noor Samand, aged 35 years, have been convicted and sentenced vile Judgment dated the 30th of July 1973, of the Additional Sessions Judge, Kasur at Sheikhupura as follows : They were convicted under section 302/34, P. P. C. for the murder, of Mst. Roshan, her daughter Mst. Sattan and her father Amir son of Mabi and were sentenced to death on three counts plus fine of Rs. 2,000 each or in default to undergo one year's law. 1. If fine was realised one‑half out of it was to be paid to the heirs of the deceased as compensation. They were also convicted under section 460/307/323, P. P. C. for lurking house‑trespass at night and for causing injuries to Mst. Amiran (P. W. 16) grand‑daughter of Amir deceased and Mst. Saidan (given up as having been won over) and were sentenced to ten years' R. I. each plus fine of Rs. 1,000 each or in default to undergo six months' R. I. Half of the fine if realised was to be paid to the heirs of the deceased as compensation. Two co‑accused, namely, Jahangir and Shahadat sons of Salahoon were acquitted. One Muhabbat was also mentioned in the F. I. R. as co accused but was dropped on the basis of the supplementary statement of the complainant in this case. The appeal of the convicts as well as reference for the confirmation of death sentence awarded to them are being taken up and disposed of together by this judgment.
2. The occurrence took place at 10‑30 p.m. on the 23rd of August 1970, in village Taverian, at a distance of two miles from Police Station Baragarh. District Sheikhupura. F. I. R. was lodged on the 24th of August 1970, at 12‑35 p.m. by Hidayat (P. W. 17) son of Amir deceased and it was recorded by Riaz Ahmad S. I. (P. W. 24) at the police station.
3. The motive for crime as set up by the prosecution is that Mst. Roshan deceased was widow of one Haji Kamir real brother of Salahoon appellant. Mst. Sattan deceased was her daughter from Haji Kamir. Salahoon appellant wanted the hand of this girl for his son Noor Samand appellant. Butt Mst, Roshan deceased refused and about 8/9 months prior to the occurrence left the residence of her husband and took up residence in village Taverian in the house of her father Amir deceased and his family. Here also she was pressed by Salahoon appellant to give the hand of her daughter. Anyway, four months before the occurrence she married Mst. Sattan deceased to Khan Muhammad (P. W. 21) but rukhsati had not into place. It is stated that the appellants on this account as well as wit: the object of obtaining land in the names of these women murdered them along with Amir deceased.
4. The prosecution has produced only one eye‑witness of this occur rence, namely, Mst. Amiran (P. W. 15) who was herself injured in the course of occurrence. She is grand‑daughter of Amir deceased and niece of Hidayat P. W. It may be pointed out that she turned hostile at the trial stage and as she did not support the prosecution version, her statement recorded by the committing Magistrate was transferred to the Sessions file. It may further be pointed out that although she was mentioned as the only eyewitness in the F. I. R., subsequently two more eye‑witnesses were intro duced, namely, Mst. Saidan who is reported to have received injuries and Mst. Pathani. However both these eye‑witnesses were given up as won over. The prosecution has produced four wajtakkar witnesses, namely, Hidayat (P. W. 17), Shama (P. W. 20), both sons of Amir deceased. Khan Muhammad (P. W. 21) husband of Mst. Sattan deceased and Ahmad P. W. 22 a neighbour. Ahmad son of Chakar was also mentioned as a wajtokkar witness in the F. I. R. but was given up as won over. It may be mentioned here that the four wajtakkar witnesses produced by the prosecution turned hostile and as they did not support the prosecution version, their statements made before the committing Magistrate except that of Ahmad P. W. were transferred to the Sessions file. The prosecution has also produced two witnesses, of joint extra‑judicial confession having been made by the appel lants in their presence. These are Raja Nasir Khan (P. W. 3) and Umar Hayat (P. W. 12). Out of these two witnesses Umar Hayat P. W. had resiled from his earlier statement and did not support the prosecution on this point.
5. The appellants were arrested on the 24th of August 1970, whereas the two acquitted co‑accused were arrested on the 28th of August 1970, by Riaz Ahmed S. I. (P. W. 24).
The relevant recoveries in this case are as follows :‑
Three crime empties P. 1/1‑3 picked up from the spot and taken into possession vide memo. Exh. P. E., dated the 24th of August 1970. The attesting witnesses are Fazla (not produced) and Allah Ditta (P. W. 9) and Riaz Ahmad S. I. (P. W. 24).
Blood‑stained blade of hatchet P: 2 and blood‑stained piece of wood i.e. handle of hatchet P. 3 were picked up from the spot and taken into posses sion vide memo. Exh. P. F., dated the 24th of August 1970. The attesting witnesses are the same.
Two blood‑stained pieces of broken handle of hatchet P. 4 and P. 5 were picked up from the spot and taken into possession vide memo. Exh. P. G., dated the 24th of August 1910. The attesting witnesses are the same.
At the instance of Salahoon appellant was recovered pistol P. 20 and three live cartridges and taken into possession vide memo. Exh. P. S., dated the 24th of August 1970. The attesting witnesses are Raja Nasir Khan (P. W. 3), Umar Hayat (P. W. 12) and Riaz Ahmad S. 1. (P. W. 24).
Blood‑stained clothes salooqa P. 18 and tehmand P. 19 were removed from the person of Salahoon appellant at the time of his arrest and were taken into possession vide memo. Exh. P. R., dated the 24th of August 1970. The attesting witnesses are the same.
Blood‑stained clothes vest P. 15. tehmand P. 16 and chaddar P. 17 were got removed from the person of Noor Samand appellant at the time of his arrest And taken into possession ride memo. P. O., dated the 24th of August 1970. The attesting Witnesses are the sanme.
Gun P. 13 was recovered alongwith two live cartridges from Sahadat acquitted co‑accused and taken into possession vide memo. Exh. P. K., dated the 28th of August 1970. The attesting witnesses are Sahib Din (P/ W. 10), Muhammad Saddiq (P. W. 18) and Riaz Ahmad S. I. (P. W. 24).
Sardar Steed Gul Khan (P. W. 23) Fire-arms Expert was examined and according to his opinion crime empties picked up from the spot were found to have been fired through pistol 20. His report is at Exh. P. W. 23/C. According to the Serologist s report Exh. P.U., the above‑mentioned blood‑stained articles were found to be stained with human blood.
6. Dr. Shafiq Ahmad (P. W. 4) conducted post‑mortem examination on the dead body of Mst. Roshan at 5‑30 p.m. on the 24th of August 1974, and found on her person the following injuries (1) lacerated wound 7'' x 3'' over the Face and forehead; (2) incised wound 3' x 1/2' on the left chin ; and (3) incised wound 2 x '' on to the shoulder. In his opinion the deceased died of shock due o injury No. (1) which caused damage to the brain. This injury had been caused by fire‑arm whereas the rest were caused by a sharp‑edged weapon. Injury No. 1 was itself sufficient to cause death in the ordinary course of nature.
On the same day he conducted post‑mortem examination on the dead body of Mst. Sattan and found on her person the following injuries (1) incised wound on the right side of face; (2) three gunshot wounds on the front of left arm and (3) two gunshot wounds on the chest. In his opinion the deceased died of excessive bleeding and shock due to injury No, (3) which damaged the heart and left lung. This injury was sufficient to cause death in the ordinary course of nature. Injuries Nos. (2) and (3) were caused by fire‑arm whereas injury No. (1) was caused by a sharp‑edged weapon.
On the same day at 5 p.m. he medically examined Amir while he was still alive and found on his person multiple contusions in an area of 9' x 6' on the left side of chest and front of left shoulder. This injury was grievous in nature and had been caused by blunt weapon. It was kept under observation. Amir died after four days in the hospital on the 28th August 1970. Post‑mortem examination on his dead body was conducted by Dr. Fails Muhammad (P. W. 6) on that day at 1‑30 p m. He noted the same injury on his person. In his opinion the death had resulted due to the aforementioned injury which had fractured ribs, damaged lungs and led to emphysama. The injury bad been caused by a blunt weapon.
At 5‑15 p.m. on the 24th of August 1970, Dr. Shafiq Ahmad P. W. medically examined Mst. Amiran (P. W. 16) and found on her person an incised wound 2 " x 1" on the left middle of skull 3'' above the left ear. The injury was simple and caused by a sharp-edged weapon.
Dr. Mrs. Manuza Anis Sheikh (P. W. 2) medically examined Mst. Saidan (not produced) at 5‑40 p .m. on the 28th of August 1970, and found on her person one bruise mark 6' x 5' on the right thigh. The injury had been caused by a blunt weapon and it was simple in nature.
7. The appellants in their statements before the trial Court totally denied having participated in the occurrence. They disowned recoveries made from them and stated that they had been falsely implicated due to enmity.
8. In the F. I. R. the occurrence is reported to have taken place in the following manner : Hidayat (P. W. 17) was asleep along with his brother Shama (P. W. 20) and Khan Muhammad (P. W. 21), his nephew and husband of Mst. Sattan deceased at his Chah in order to guard the animals. The said Chah was at a distance of about one kills from the house of his father Amir deceased. At about 10‑30 p.m. he heard report of fire‑arm from the house where his sister Mst. Roshan deceased was likewise asleep and also heard alarm. The three of them were suddenly woken up and rushed to that house. They heard more fire reports. When they arrived in the street which led to the house, they, noticed the appel lants and acquitted co‑accused coming out of the house. At that time Ahmad son of Chakar (given up as won over) was also present there as he lived nearby. He had also been attracted to the scene of crime on hearing fire reports and alarm. Salahoon appellant was armed with a pistol, Noor Samand appellant was armed with a hatchet, Jahangir acquitted co‑accused was armed with a takwa. Sahadat acquitted co‑accused was armed with a '12 bore gun and Muhabbat was armed with a sword. Salahoon appellant who was holding a pistol in his hand along with others scaled over the wall of Ahmad (P. W. 22) and ran away. These P. Ws. had seen the appellants and acquitted co-accused coming out of the house. When they went inside the house they saw Mst, Roshan and Mst. Sattan lying dead on their cots, Mst. Amiran P. W. and Amir were lying in an injured condition. Mst. Roshan deceased had sustained hatchet injuries on her face etc. and Mst. Sattan deceased had sustained injuries on her chest, face, and left arm. These injuries bad been caused by a fire‑arm like '12 bore gun or pistol and sword. Mst. Amiran P. W. bad Injuries on her head caused by fire‑arm. Amir had sustained injuries on his chest. Amir was an ailing man and was confined to bed for the past ten years. He was unable to walk.
Later on, on the same day Hidayat P. W. made a supplementary state ment to the effect that he had mentioned the name of Muhabbat armed with a sword as a co‑accused under a misunderstanding because shortly after the occurrence he had proceeded to lodge the F. I. R. on the basis of what had come in his mind. However, on his return when he made further enquiries he was told that Muhabbat was not along with the appellants and had not been seen by any one. He, therefore, wanted that his same be deleted from the F. I. R. as he was innocent.
The comments of learned counsel for the appellants on the F. I. R. may be recorded here. It is submitted that Hidayat P. W. claimed himself to be a wajtakkar witness. He gave details in the F. I. R. about the aims which had been carried by the accused party. However, handles of hatchet as well as blade etc. were found lying on the spot and if that was so he could not have seen the appellants and the acquitted co‑accused leaving the scene of crime armed with hatchet and toka. He has next submitted that Muhabbat was named in the F. I. R. as one of the co‑accused carrying a sword. If he had been also seen armed with a sword by Hidayat P. W. leaving the scene of crime along with others, Hidayat P. W. could have not made a subsequent statement to the effect that he had made the F. I. R. without consultation and that on reaching home he made enquiries and learnt that Muhabbat was not present there as he had not been seen by any one. It was argued that for that reason it could be stared that Hidayat P. W. had not seen the appellants and their companions coming out from the house where three persons had been mar Bred.
9. We have heard learned counsel for the appellant:, as well as for the State and carefully perused the record. The prosecution case is based on tile eye‑witness account of Mst. Amiran P. W. She was injured in the course of occurrence. Any way, she did not support the prosecution version at the trial but stated that she heard fire reports and that was suddenly woken up when someone bad inflicted an injury on her head and that she could not identify as to who were the assailants of the deceased as well as herself. Her statement made before the committing Magistrate was placed on the Sessions file. Then the prosecution case is based on the testimony of four wajtakkar witnesses. These are Hidayat, Shama, Khan Muhammad and Ahmad P. Ws. All of them also did not support the prosecution version and were declared hostile except Ahmad P. W. Their statements were also transferred to the Sessions file. Ahmad P. W. stated before the trial Court that he heard fire reports aid was woken up as he lived in the neighbour hood. He saw some persons running away from the scene of crime but could riot tell as to who they were. According to him Hidayat, Shamand and Khan Muhammad P. Ws. came to the scene of crime after about one hour. These three P. Ws. did not support the prosecution version at the trial but their statements supported the version given by Ahmad P. W. Further, the case of the prosecution is based on extra‑judicial confession having been made by the appellants before Rana Nasir Khan (P. W. 3) and Umar Hayat (P. W. 12). We have already observed that Umar Hayat P. W. resiled from his earlier statement and did not support the prosecution version on this point. Rana Nasir Khan P. W. mentioned about the extra‑judicial confession in his statement before the Notice under section 161, Cr. P. C. and in the statement before the trial Court. But he did not say a word about it in his statement before the committing Magistrate. Any way, according to him the appellants in this case had made a joint confession. A perusal of his statement indicates that he is a stock witness of the police. He is not even supported by Umar Hayat P.W. Thus the position in this case is that the evidence respecting extra-judicial confession having been made by the appellants could not be relied upon.
Now we may examine the recovery evidence in this case. Shabadat was acquitted by the trial Court on the ground mat since the crime empties picked up from the spot and gun P. 13 recovered from him were sent to the Fire‑arms Expert at the same time, it was not safe to rely on these recoveries as there was a likelihood of gun P. 13 having been tampered with before it was sent to the Expert. But the trial Court did not note that pistol P. 20 had also been tent along with crime empties picked up from the spot and gun P. 13 to the Fire‑arms Expert. Consequently if there was any possibility of gun P. 13 having been tampered with, there was also a possibility of pistol P. 20 having been tampered with. On that basis if Shahadat could be acquitted merely on this ground, Salahoon appellant from whom pistol P. 20 was recovered should has also been acquitted. Anyway, the witnesses of recoveries from Salahoon appellant of pistol P.20, blood‑stained salooqa P. 18 and tahmand P. 19 as well as of blood stained clothes, namely, vest. 15, tahmand P. 16 and chaddar P. 17 from Noor Samand appellant Rana Nasir Khan, Umar Hayat and Riaz Ahmed S. I. P. Ws. Rana Nasir Khan P. W. is a stock witness and, therefore, no reliance can be placed on him. Umar Hayat P. W. did not support the prosecution version regarding these recoveries. We are, therefore, only left with the testimony of Rica Ahmad S. 1. P. W. in this respect which in the circumstances of the case is not of such quality that reliance should be placed on it. Riaz Ahmad S. I. P. W. had kept the crime empties as well as the fire‑arms recovered in this case with him before they were despatched to he Fire‑arms Expert, and on that account the learned trial Judge had found these recoveries as doubtful particularly in respect of Shahadat acquitted co‑accused. Learned counsel for the State concedes that in this case neither the recoveries are reliable nor evidence of extra‑judicial con fession. He had submitted that the eye‑witness and wajtakkar account should be believed in this case and for that purpose the statements made by Mst. Amiran P. W. as well as Hadayat, Shama, Khan Muhammad and Ahmad P. Ws. made before the committing Magistrate should be preferred to those which they mace before the trial Court. It is indeed a settled principle of law that statements made before the committing Magistrate can be relied upon in preference to those made at the trial only upon con. sideration of all facts and circumstances of each case. When such state 'merits are transferred to the Sessions file under section 288, Cr. P. C , they are a material piece of evidence and can form a sound basis for conviction of the accused only if found genuine and true. Anyway, a person who changes his statements or resiles from his previous statement is in a way a self‑condemned liar. In the present cast Mst. Amiran P. W. had implicated the appellants and the acquitted co‑accused in her statement before the Committing Magistrate but has resiled therefrom in her statement before the trial Court. Similarly, Hidayat, Shama, Khan Muhammad and Ahmad P. Ws. had resiled from their earlier statements. In such circumstances, we find it necessary to seek corroboration from some independent source although law does not require such corroboration. In this particular case no corroboration of the testimony of these witnesses is forthcoming from any independent source. In the circumstances relying on Alim v. The State (P L D 1967 S C 307). Muhammad Ahmad alias Mahanda v. The State (P L D 1970 S C 72) and Munawar Khan and 2 others v. The State (P L D 1975 Lah. 175) we are of the considered opinion that it would not be safe to rely on the testimony of the sole eye‑witness as well as the wajtakkar witnesses in this case particularly when it is not corro borated by the evidence of extra‑judicial confession or the recovery evidence. It is reasonably probable that the deceased in this case were done to death by some unknown assailants and although Mst. Amiran P. W. was herself injured in the course of occurrence, she was not in a position to identify as to who the assailants were. It is further doubtful if the wajrakkar witnesses had either seen the appellants running away from the scene of crime or if so, they were in a position to identify them. In the circumstances the appellants should have been given the benefit of doubt which we hereby give to them. The result is that their convictions as well a sentences are set aside and they are acquitted. Their appeal is accepted. They shall be released from jail forthwith if not wanted in any other case.
10. Reference for the confirmation of death sentence awarded to the appellants is hereby rejected.
Appeal allowed.
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