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Criminal Appeal No. 145 of 1977, decided on 6th December, 1980.

(On appeal against the order of the Lahore High Court in Criminal Appeal No. 480/75 dated 18th June, 1976),

--- S. 302/34 read with Criminal Procedure Code (V of 1898), Ss. 162 & 342-Murder-Case against accused found to have been based on statement of accused made to Investigating Officer conviction and sentence set aside.

Saeed Akhtar, Advocate Supreme Court and S. Inayat Hussain, Advocate-on-Record (,absent) for Appellant.

Mr. Iqbal, Advocate Supreme Court for the State.

Date of hearing : 6th December 1980.

.-Muhammad Khan, Shera and Allah Yar were tried by the learned Sessions Judge, Jhang, under sections 302/34 and 307/34, P. P. C. for having in furtherance of their common intention on the night between 12th and 13th of July, 1973 in the area of village Jhanda caused the death of Ata Ullah in his own house. They were also charged with making a murderous assault on Mst. Phaphan in furtherance of their common intention at the same time and place. By his order dated 30th of April, 1975 the learned Sessions Judge convicted all the three accused under section 302/34, P. P. C. and awarded the sentence of life imprisonment to all of them. They were also sentenced to pay a fine of Rs. 500 each or in default to undergo rigorous imprisonment for six months each. The fine, if realized, was to be paid as compensation. They were acquitted of the charge under section 307/34, P. P. C. The Lahore High Court by its order dated 18th June, 1976 set aside the conviction and sentence of Shera and Allah Yar and they were acquitted. By the same judgment the conviction and sentence of Muhammad Khan were maintained in criminal appeal.

2. Aman Ullah P. W. 7, the complainant and brother-in-law of the deceased, Mst. Phaphan P. W. 8 the injured wife of the deceased and Wali Muhammad P. W. 9, a friend of Aman Ullah, were produced to give the ocular testimony regarding the incident. Qaim Khan P. W. 10, the uncle of the deceased and Ghulam P. W. 11, his servant, were both wajtakkar witnesses and the High Court held that they were rightly disbelieved by the trial Court.

3. Gun P. 1 was recovered at the instance of Muhammad Khan appellant. This recovery was, however, disbelieved by both the Courts below.

4. The learned High Court found that Mst. Phaphan P. W. 8 was an interested witness for cogent reasons given in the judgment. The Court also found that she had a motive to falsely implicate the accused in order to rope in as many brothers of the wife of the deceased as possible, for three out of four brothers were involved and the one who was left out was only 12 years of age. Aman Ullah, the complainant, was disbelieved: for admittedly he lives in village Bhawans two miles away from the place of occurrence and the purpose for which he is supposed to have come and stayed with the deceased on the fateful night did not inspire confidence. Moreover, he had made improvements at the trial on his statement in the F. I. R. Similarly the testimony of Wali Muhammad P. W. 9 was discarded because his statement about the reasons for his staying at the house of the deceased on the fateful night was similarly disbelieved again for cogent reasons. Their presence in the house of the deceased on the night of the occurrence was, therefore, ruled out by the High Court.

5. The Court is, therefore, left with the solitary statement of Mst. Phaphan who has already been found to be an interested witness. Corroboration of her testimony has, therefore, to be searched for. The learned High Court was of the view that the statement made by Muhammad Khan to Ashiq Hussain P. W. 14, S. I., who had partly investigated the case, could be used as a piece of evidence corroborating the testimony of Mst. Phaphan P. W. 8 only so far as Muhammad Khan appellant is concerned and the Court found .this to be sufficient to uphold the conviction of Muhammad Khan.

6. It has been submitted before us and rightly so that the statement of Muhammad Khan as having been made before Ashiq Hussain Shah, S. I. P. W. 14 and culled out from the latter during the cross-examination is inadmissible in evidence, being a statement made by the accused person to an Investigating officer during the course of investigation. Section 16 of the Cr. P. C. is a clear bar to such a course having been taken wherefor this statement has to be excluded.

7. As a matter of abundant caution we went through the statement of Muhammad Khan recorded under section 342, of the Cr. P. C. and we find that he has not rebutted the statement that lie is supposed to have made to Ashiq, S. 1. P. W. 14. Had he done so, it might have been used as a piece of corroborative evidence of the testimony of "st. Phaphan P. W. 8. He, however, only stated that "I had explained my position to the police at the time of my arrest." This is neither here nor there and does not help the prosecution at all. In this state of evidence we have no option but to accept the appeal and to set aside the conviction and sentence of Muhammad Khan appellant which we hereby do and direct that he shall be released forthwith if he is not required in any other case.

Appeal accepted.

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