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Criminal Appeal No. 79 of 1955, decided on 13th October 1955.

(On appeal from the judgment and order of the Judicial Commissioner's Court, N.‑W. F. P. at Peshawar, dated the 10^th March 1955, in Criminal Appeal No. 30 of 1955).

(a) Criminal Procedure Code (V of 1898)-----

S. 162--- Prosecution witness's statement in Court assumed to be corroborated by his statement before police‑Latter statement must be ruled out of consideration.

A boy‑servant of the deceased, who appeared as the only eye-witness of the murder, deposed in Court that the deceased had been shot at from close quarters which fact was corroborated by the medical evidence. The trial Court, however, was not inclined: normally to accept the boy's testimony, inasmuch, as he was of a tender age and in service with the deceased as a ploughman. Yet the Court proceeded to find corroborative material, in the statement of the boy before the police which tallied with his evidence in Court, and which had been recorded before the result of post mortem examination had been notified to the police.

Held, that statement of the witness before the police made use of to corroborate his statement in Court must be excluded as inadmissible under section 162, Cr. P. C.

That being so, the original estimate which was formed by the trial Court of the boy's evidence, namely, that by reason of his tender age and his connection with the deceased it could not be normally accepted as true, must prevail.

Prosecution version implicating innocent' persons from stage of F. I. R. Only eve‑witness, of tender age and a servant of deceased‑Held, it was unsafe to maintain convictions.

M. Sleem, Senior Advocate, Federal Court (M. Anwar Advocate, Federal Court, with him) instructed by Ferozuddin; Attorney for Appellants.

M. Ismail Bhatti, Advocate, Federal Court, instructed by' Iftikhar‑ud‑Din Ahmad, Attorney for Respondent.

Date of hearing : 13th October 1955.

This is an appeal from the judgment of a Bench of the Court of Judicial Commissioner, North‑West Frontier Province, by which appellants Muhammad Ayub and Gauhar Rehman were convicted of murder and sentenced to death. Special leave to appeal was granted in this case because the learned Judges appeared to have erred in law in treating the statement of an important prosecution witness to the police as corroborative of his evidence in Court.

The murdered man in this case, Sher Bahadur, was killed by gunshots on the morning of 16th August 1953, in his own field outside village Kotha where he was cutting grass.. Ali Raider, a boy servant of the deceased, 'is alleged to have been present at and to have witnessed the crime. According to this boy's evidence, the two appellants fired on the deceased from a contiguous, field. On hearing the sound of gunfire, the, deceased ran' to the place where he had deposited his own shotgun before he had begun to work in the field. While he was nearing the place where his shotgun lay, he was hit by a gunshot and fell down. The witness then saw both the appellants, of whom Muhammad Ayub was armed with a shotgun and Gauhar Rehman with a rifle, come near the deceased and fire more shots at him from close quarters. After they were satisfied that the man was dead, the culprits ran away taking with them the shotgun of the deceased.

The crime was reported at Police Post Topi, two miles away, a little b.‑fore midday by Ali Bahadur, the brother of the deceased, who, besides the two appellants, mentioned two other persons as having taken part in the crime.

The only eye‑witness in the case was Ali Raider and, com menting on his evidence, the learned Judges said :‑

"The entire case hinges on the statement of Ali Raider (P. W. 12), the solitary eye‑witness in the case. It cannot be denied that this man being the ploughman of the deceased, and of tender age, would not normally be accepted as a truthful witness until and unless his statement is corroborated by some very strong circumstantial evidence. In the case before us, his statement is remarkably corrobo rated by certain facts, which cannot lie, and taking them into account we cannot resist arriving at the conclusion that not only Ali Raider, P. W. was present at the spot when the murder took place, but saw the occurrence and is making the statement without being influenced or coerced by any outside agency".

One of the corroborative facts on which particular stress was laid by the learned Judges was that this boy's statement to the police in which he had stated that the deceased was tired at by both the appellants from close quarters, was corro borated by the medical evidence which showed that two of the bullets which had hit the deceased were fired from a close A range. As the police had recorded Ali Raider's statement before the result of the post‑mortem examination was received, 'the point made by the learned Judges was that since in that statement the witness had given an account of the firing which tallied with the medical evidence his statement in Court in which he had detailed the same version must be held to be true. But in adopting this argument, the learned Judges over‑looked the provisions of section 162 of the Criminal P. C., which makes statements mode by prosecution witnesses in the course of police investigation inadmissible for the purpose of corroborating their evidence at the trial. The correctness of this legal position is not disputed by the learned counsel for the Crown. That being so, the original estimate which was formed by the learned Judges of Ali Haider's evidence, namely, that by reason of his 'tender age and his connection with the deceased it could not be normally accepted as true, must prevail. There are a few other circumst ances which have been treated by the learned Judges as corroborative of Ali Raider's version, but we are quite sure that but for the corroboration assumed to have been furnished by this witness's statement to the police, they would not have acted upon his evidence. Having excluded this evidence as inadmissible, our duty under section 167 of the Indian Evidence Act is to address ourselves to the question whether the remaining evidence is sufficient to maintain tile conviction. While approaching this question, we are very much influenced by .the fact that the prosecution version from the very beginning was a tainted one inasmuch as riot only two innocent persons had been implicated by Ali Bahadur in. the First Information Report, but the name of Gauhar Rehman appellant who was riot known to the eye‑witness must also have been mentioned in that report at the instance of some interested person. It is, therefore, definitely unsafe to maintain this conviction, when there is only one eye‑witness in the case and he is not only of tender age, but is also a servant of the deceased, who could easily have been influenced by a man like Ali Bahadur to give a false or exaggerated account of the crime. We, therefore, accept this appeal, set aside the convictions and sentences of the appellants, and order that they be set at liberty forthwith.

A.H. Appeal accepted.

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