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P L D 1981 Supreme Court 472
Present : Muhammad Haleem, Aslam Riaz Hussain and
Abdul Kadir Shaikh, JJ
MUHAMMAD SHAFIQUE AHMAD‑Petitioner
versus
THE STATE‑Respondent
Criminal Petition for Special Leave to Appeal No. 324 of 1979, decided on 11th November, 1980.
(On appeal from the judgment of Lahore High Court dated 6‑6‑1979 in Criminal Appeal No. 273 of 1978 and Murder Reference No. 88 of 1978).
(a) Penal Code (XLV of 1860)‑‑
‑‑ S. 302 ‑ [Murder‑case] ‑ Appreciation of evidence‑Accused petitioner developing illicit relations with deceased's daughter during deceased's absence abroad‑Deceased on coming home finding accused in his house, objecting to his presence, and on altercation taking place leaving house but on following mid‑night coming armed with a dagger, attacking deceased, and killing him‑Prosecution witnesses identifying culprit by electric light trying to catch him but accused making good his escape‑Accused arrested next morning, his bushshirt and shalwar noticed to be stained with blood and Police Officer securing such articles‑Accused volunteering to produce weapon of offence, leading Police to his house, and producing bloodstained dagger‑Incrimi nating articles proved by Chemical Examiner to be stained with human blood‑Prosecution case, held, rightly believed by lower Courts, conclu sions reached by them based on proper appreciation of evidence, and criticism levelled against prosecution evidence rightly rejected . [Evidence].
(b) Criminal Procedure Code (V of 1898)
‑‑ S. 16;‑Confession‑Witness, credibility of‑Prosecution witness given up by prosecution as having been won over and Public Prosecutor making him available at trial for cross‑examination but accused's counsel declining to do so‑Contention that statement of such witness made under S. 164, Criminal Procedure Code, 1898 could be considered as evidence, held, totally irrelevant in circumstances‑Even otherwise, held further, person going on making contradictory statements from time to time one in favour of one party at one stage and another quite to contrary and in favour of opposite‑party, could hardly, be worthy of credence, to be looked upon by Courts with disfavour and his evidence to be ruled out of consideration if not prosecuted for giving false evidence.‑[Confession‑Witness].
Shaukat All, Senior Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing : 11th November, 1980.
ABDUL KADIR SHAIKH, J.‑This is a petition for special leave to appeal from the judgment of Lahore High Court dated 6th June 1919 confirming the sentences of death and of fine recorded against the petitioner by the Additional Sessions Judge, Lahore under section 302, P. P. C. for having caused the murder of Haji Abdul Rahman at about 00.30 a. m. on 11th June, 1976.
The parties reside in Ihata Devi Das on Chah Miran Road in Faiz Bagh, Lahore. Haji Abdul Rahman lived in his double‑storeyed house with his wife Mst. Naeema and six children including Mst. Yasmin, aged about 17 years. He had returned home, about a week earlier, after stay in London for one year and a half. During his absence, the petitioner used to visit his house, and he developed illicit relations with Mst. Yasmin. It is said that at about 12‑00 Noon on 11th June, 1976 when the petitioner came to the house, Haji Abdul Rahman objected to his visit and this led to altercation between them, but nothing transpired beyond exchange of abuses. The incident, however, occurred during the night that followed. According to prosecution, Haji Abdul Rahman, his family members and his two cousins Mohammad Ali and Ghulam Rasool were talking to each other until late hour in the night, and at about 00‑30 a.m., the petitioner suddenly came there by climbing over the wall of the house and attacked Haji Abdul Rahman with a dagger. Besides the aforesaid persons, the occurrence was witnessed by one Hamid Hassan who was on the adjoining Toof of his, house and he also identified the culprit by the electric light. They tried to apprehend him but he made good his escape. Haji Abdul Rahman died on the spot, and Ghulam Rasool then rushed to the Misri Shah Police Station where he lodged the report of the crime at 1‑00 a. m.
The petitioner was arrested on 12th June, 1976 by S. I. Bashir Ahmad, and since the bush‑shirt and the shalwar on his person were noticed to be stained with blood, the Police‑Officer secured these articles. The accused volunteered to produce the weapon of offence used in the crime, and he led the Police Officer and the witnesses to his house and produced blood‑stained dagger from top of the shed over the door of his hous0. The clothes secured from his person and the dagger recovered at his instance were proved at the trial to be stained with human blood through the report of the Chemical Analyser.
The prosecution case rested on the ocular testimony of Mst. Naeema P. W. 1 and Mohammad Ali P. W. 8 and 'was sought to be corroborated by the circumstantial evidence of recoveries of the blood‑stained clothes from the person of the accused and the recovery of the weapon of offence used in the crime at his instance. Ghulam Rasool, the first informant and Hamid Hassan were given up by the prosecution as having been won over.
In defence, the petitioner while denying the prosecution allegations, alleged that Mst. Naeema had developed illicit relations with many persons during the absence of her husband, and some unknown person had killed her husband during the night, and he was falsely involved due to enmity. He produced four witnesses in defence, namely Ghulam Mohammad, Mohammad Sarfraz Khan, Mohammad Iqbal and Mohammad Ikram, the last three witnesses were produced to prove the statements of the Hamid Hassan and Ghulam Rasool, the two prosecution witnesses recorded under 164 of the Code of Criminal Procedure. The first defence witness Ghulam Mohammad, a neighbour of the deceased, deposed that on the night of occur rence he was sleeping on the roof of his house and he heard shrieks of a woman, who on enquiry replied that nothing. had happened. He further stated that he did not notice the petitioner or any one else crossing over the roof.
The Additional Sessions Judge, who tried
the case believed Mst. Naeema and Mohammad Ali as truthful witnesses, and also placed reliance on the circumstantial evidence of the recoveries of blood‑stained clothes from the person of the accused and the weapon of offence used in the crime. He, accordingly, held the accused guilty under section 302, P. P. C. and sentenced him to death and also to pay fine of Rs. 5,000. On appeal by the convict and in Reference, learned Judges of the Division Bench of the Lahore High Court on re‑appraisal of the case came to the same conclusion and confirmed the conviction and sentences awarded to the petitioner, and dismissed his appeal.
Mr. Shaukat Ali Sheikh, learned counsel for the petitioner submits that the learned Judges in the High Court have not appreciated that the incident occurred at night time, and if the prosecution case were to be true, the assailant could not have escaped. Learned counsel further submitted that P. Ws. Mst. Naeema and Mohammad Ali are both closely related to the deceased and implicit reliance should not have been placed on their word, specially when the other two eye‑witnesses had not supported the prosecution case. Learned counsel emphasised that the statement made by Ghulam Rasool under section 164 is relevant under section 80 read with section 30 of the Evidence Act, and it should have been taken into consideration as evidence in the case.
After having gone through the record of the case in the light of the arguments advanced by the learned counsel in support of the petition, we are clearly of the view that the criticism levelled against evidence produced by the prosecution has rightly been rejected by the learned trial Judge and the learned Judges in the High Court, and the conclusions reached by them are based on proper appreciation of the evidence, and this case does not, therefore, call for interference by this Court. The argument that the statement of Ghulam Rasool made under 164 Cr. P. C. can be considered as evidence is totally irrelevant, for, he was given up by the prosecution as having been won over by the accused, and the learned Assistant Public Prosecutor made him available, at the trial, for cross‑examination by the learned counsel appearing for the petitioner, but he declined to do so. On these facts, it hardly lies in the month of the petitioner to raise the plea that an earlier statement made by that witness should. be treated as evidence in the case. Even otherwise, if a person goes on making contradictor statements from time to time, one in favour of one party to the litigation at one stage, and the other quite to the contrary and in favour of the opposite‑party, at another stage, he is hardly worthy of credence. Such a‑ person is to be looked upon by a Court of law with disfavour, and the evidence given by him should be ruled out of consideration, if he is not to be prosecuted under the law for giving false evidence.
For these reasons there is no merit in this petition and it is dismissed in limine.
s. A. II. Petition dismissed.
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