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Criminal Appeals Nos. 144 of 1984 (Karachi) and J‑68 of 1985 (Hyderabad), decided on 17th May, 1986.

‑‑‑S. 302/34‑‑Ocular testimony, appreciation of‑‑Complainant stating in F.I.R. about his having seen accused inflicting injuries to deceased but at trial, stating to have seen accused standing at spot armed with pistol and hatchet and deceased lying dead with many injuries on his person‑ Complainant informed by wife of deceased, of accused having murdered deceased‑‑Wife not supporting prosecution and not stating of informing complainant about occurrence‑‑House of complainant at distance of 150 paces from Wardat, arriving on hearing report of first gunshot‑‑Evidence of complainant as to being informed of occurrence by wife of deceased, held, was inadmissible and his evidence would carry little weight in circumstances.

‑‑S. 302/34‑‑Hostile witness‑‑Witnesses arriving at spot on hearing gunshot report‑‑Witnesses allegedly informed by wife of deceased, of accused having murdered deceased‑‑Wife not stating so‑‑Witnesses contradicting their previous statements recorded under S. 164, Cr.P.C. and not supporting prosecution‑‑Witnesses not identifying accused though allegedly having seen them at spot‑‑Wife and son of deceased also not supporting prosecution and alleging the killing by some thieves‑ Witnesses also admitting enmity of deceased with others‑‑Ocular testimony furnished by prosecution, held, could not bring home guilt of accused‑‑Acquittal ordered in circumstances.

‑‑‑Ss. 164 & 265‑J‑‑Penal Code (XLV of 1860), S. 302/34‑‑Statements recorded under S. 164, Cr.P.C.‑‑Requirements to be satisfied Non- compliance of terms of S. 265‑J‑‑Effect‑‑Statements recorded after 2/3 days of arrest of accused‑‑Accused not given notice of recording their statements‑‑Statements recorded by police under S. 161, Cr.P.C. not appearing to have been delivered to accused before recording of such statements‑‑Accused not having sufficient time to prepare their defence and cross‑examine witnesses‑‑Statements remaining unchallenged‑‑Witnesses giving different statements at different stages‑‑Some witnesses declared hostile, thus not worthy of reliance‑‑Statements recorded under S. 164, Cr.P.C.. held, could not be used as substantive piece of evidence under S. 265‑J, Cr.P.C., non‑compliance of which would expose statements to serious criticism and failure of justice might inevitably result in circumstances.

Abdul Hakeem and another v. The State P L D 1982 Kar. 975 ref.

‑‑‑S. 302/34‑‑Retracted confession, value of‑‑Judicial confession, retracted at trial‑‑Confessional statement contrary to story set up in F.I.R. and also contrary to facts as alleged by prosecution‑‑Confession not corroborated by any other piece of evidence‑‑Such tainted evidence, held, could not be corroborated by another tainted evidence‑‑Retracted cession therefore could not be relied upon in circumstances.

‑‑‑S. 302/34‑‑Recoveries of weapons of offence, value of‑‑Pistol recovered on pointation of accused, sent to expert after more than 7 months‑‑No explanation given by Investigating Officer for long delay‑ Hatchet recovered from other accused sent to Chemical Examiner after about 3‑ 1/2 months‑‑Delay in sending not explained‑‑Recoveries, held, could not be used as substantive evidence in circumstances.‑‑[Recovery].

Abdul Qadir Halepota for Appellants.

Muhammad Hayat Qureshi for the State.

The appellants have filed this appeal against the conviction and sentences recorded against them by the learned Additional Sessions Judge, Hyderabad by which he convicted the appellants under section 302/34, P.P.C. and sentenced each of them to imprisonment for life and to pay a fine of Rs.5,000 in default to suffer R.I. for one year more. He further directed each of the appellants to pay compensation of Rs.5,000 to the heirs of the deceased under section 544‑A, Cr.P.C. and in default to suffer R.I. for one year more. It was also directed that the period of their detention shall be deducted from the sentences imposed on them.

2. The facts as narrated by the complainant Yar Muhammad in the First Information Report are that deceased Muhammad Ibrahim was resident of Aazari Taluka Sehwan, District Dadu. He had migrated alongwith his wife Mst. Saheb Khatoon and was residing near his house. Deceased Ibrahim had informed the complainant that Mst. Saheb Khatoon had illicit connections with him and she had eloped with him. Deceased started a grocery shop at Malano Bridge. About three years prior to the incident deceased Ibrahim had taken Mst. Saheb Khatoon to Hyderabad for making purchases where appellant Illahi Bux witnessed them and got them apprehended by Hyderabad Police. Ibrahim was challaned in the Court for abducting Mst. Saheb Khatoon. About two years prior to the incident again Ibrahim had abducted Mst. Saheb Khatoon from whom he has at present one son namely Rahim Bux aged about 7 years and one girl namely Shahzadi aged about 4 years. The appellants who are sons of Mst. Saheb Khatoon from her first husband Ghulam Hussain used to visit their mother. On the night between 20 and 21‑3‑1977 the complainant was sleeping in his house when at about 12‑30 night he heard gunshot report and cries coming from house of Ibrahim. He went running to the house of Ibrahim. Nabi Bux Malano also came after him. Lantern was burning in the house of deceased Ibrahim and in the light of lantern they saw that Amir Bux was armed with a country‑made pistol and he fired second shot at Ibrahim and accused Ali Bux who was armed with hatchet gave sharp -sided hatchet blows on the other parts of the body of deceased Ibrahim The accused challenged them not to come near them otherwise they would also be killed. The accused then went away from the Wardat. Deceased Ibrahim was bleeding from his injuries and after a while he died. Mst Saheb Khatoon and her minor son Rahim Bux were raising cries, and Mst Saheb Khatoon told them that the present appellants had murdered her husband. The first information report was registered in Roznamcha by A.S.I. Sohbat Khan at Police Post Tando Ghulam Hyder, A.S.I. then sent the copy of Roznamcha to Tando Muhammad Khan for incorporating the same under 154, Cr.P.C. Book.

After usual investigation the accused were sent up to face trial under section 302/34, P.P.C. The accused denied the charge.

3. P.W. 12 Dr. Muhammad Azim performed the post‑mortem on the dead body of the deceased and found the following injuries:‑‑

(1) Wound of entrance of 1/2" x 1/4" over right parietal area, 2‑3/4" above right ear, oblique.

(2) Wound of exit 2" x 1/2" over right side of chin with fracture of bone.

(3) Wound of entrance 1/2" x 1/2" deep to abdomen small intestines which were ruptured were coming out from the wound, near wound of entrance each 1/4" x 1/4" deep to abdomen, this whole wound was situated on the left lower side front of abdominal wall 2‑1/4" below and to the left of umblicus.

(4) Wound of exit 1/2" x 1/2" over the left side mid lumber region.

(5) An incised wound 6" x I" skin deep from below upwards from right angle of lower jaw to right side prontal area, vertically oblique.

(6) An incised wound 1" x 3/4" skin deep, 1/4" lateral to injury No. 5 just above right ear.

(7) An incised wound 1/2" x 1/4" x skin deep, just in the middele and upper part of right ear, which is cut.

(8) An incised wound 2‑3/4" x deep to bone which is cut on back of right shoulder vertically oblique.

(9) An incised wound 2" x 3/4"deep to muscles over the outer side and upper part of right upper arm.

(10) An incised wound 2‑1/2" x 3/4" x deep to muscles 3/4" below and lateral to injury No. 9.

(11) An incised wound 1" x 3/4" x deep to muscles circular over right angle of mouth.

From the external as well as internal examination of the dead body of the deceased the doctor was of the opinion that the death was due to shock and haemorrhage. Injuries Nos. 1, 2, 3 and 4 can be caused by some fire‑arm at very near distance, and could cause death. All other injuries collectively can cause death and appeared to have been caused by some sharp weapon like hatchet. Injuries were sufficient in ordinary course of nature to cause death.

4. In order to bring home the charge against the appellants the prosecution relied upon the testimony of complainant P.W.I Yar Muhammad, P.W.2 Nabi Bux, P.W. 3 Ghulamullah, P.W. 6 Rahim Bux Khan and P.W.7 Mst. Saheb Khatoon. The judicial confession of accused Ali Bux. recovery of blood‑stained hatchet at the instance of accused Ali Bux and the recovery of pistol which was produced by accused Amir Bux and motive as stated in the F.I.R. have also been believed.

5. The first witness of the incident is complainant Yar Muhammad who in his first information report stated that he alongwith Nabi Bux and Malano went to the house of deceased where the lantern was burning and in their presence Amir Bux had fired second shot at Ibrahim and Ali Bux gave hatchet blows on the head and other parts of the body of Ibrahim but at the trial he stated that on the report of gunshot he alongwith Ghulamullah and Nabi Bux came there. The bulb was alight again said a lantern was burning and accused Amir Bux and Illahi Bux were standing there. Amir Bux had a pistol and Ali Bux had a hatchet. Ibrahim was lying dead with many injuries. The accused ran away. Mst. Saheb Khatoon informed them that the accused had killed Ibrahim. So according to deposition of P.W.1 no injury was caused by the appellants in his presence. As regards the statement of Mst. Saheb Khatoon, she has not stated in her statement that she had informed the complainant that the accused had killed the deceased, therefore, the statement of P.W.I that Mst. Saheb Khatoon had informed him that the appellants have killed the deceased is not admissible in evidence. Additionally Mst. Saheb Khatoon had not supported the case and on this ground also the statement of this witness carries little weight. The house of P.W.1 is at a distance of about 150 paces from the Wardat and he came running to the Wardat after the report of first gunshot. It would not be believed that the accused persons were standing there and waiting for the arrival of the complainant so that in his presence the injuries may be caused to the deceased. If this witness was attracted to the scene on the report of the gunshot then in natural course accused Amir Bux who was armed with gun would have fired the second shot and then could easily have moved out of the house. It is also strange that when the life of the deceased could have been taken by means of fire arm then why hatchet was used by the second accused.

P.W. 2 Nabi Bux has stated that on the report of gunshot he went to the Wardat and saw the two appellants coming out from the house of deceased Ibrahim and complainant informed him that they were Amir Bux and Ali Bux. Mst. Saheb Khatoon had informed him that her sons from previous husband had committed the murder. This part of the statement of this witness is again inadmissible as Mst. Saheb Khatoon has not given such statement in her deposition. In his 164 statement this witness has stated that he had seen both the accused while running from their backs from 50‑60 paces. He has also stated that he heard Mst. Saheb Khatoon saying that her husband had been murdered by some thieves. In his 164 statement this witness has stated that faces of the accused were muffled. Thus, this witness has not supported the prosecution case.

P.W. 3 Ghulamullah is another witness who was attracted to the scene on the report of the gunshot. He has stated that lantern was burning at that time inside the house of deceased. He saw two persons standing in the house of deceased Ibrahim, one had a pistol and another was armed with hatchet. He did not identify the assailants as their faces were muffled. He was declared hostile.

P.W. 6 Rahim Khan was the inmate of the house and he has stated that he woke up on the cries of his mother. He saw three accused, two with hatchets and one with gun who after killing his father went away and his mother did not inform him about the names of the assailants. He was declared hostile and he has not admitted the contents of his 164 statement. In cross‑examination this witness has stated that he and his mother went to the house of Yar Muhammad and his mother informed Yar Muhammad in his house that her husband has been killed.

P.W. 7 Mst. Saheb Khatoon is the widow of the deceased and mother of the accused from her previous husband. She has stated that she woke up on voice of boxes and of door. She saw three assailants. She did not identify them but her husband gave them 'Hakals'. Deceased Ibrahim received hatchet blows and fire‑arm shot and he fell down and he died there and then. She raised cries but none was attracted. She has not admitted her E previous statement recorded under section 164, Cr.P.C. In cross -examination she has stated that she was married to Ibrahim with consent of present accused and other relations. Ibrahim had enmity with so many persons and, therefore, he had shifted from Arazi to Malano Mori and there he changed his caste and started calling himself as Khoso by caste, though he was Bhatti.

The complainant has also admitted that the deceased had enmity with so many other persons. Thus, the witnesses who have been produced by the prosecution to prove that they have witnessed the incident have not supported the prosecution case. There remains to be considered the statements of the witnesses recorded under section 164, Cr.P.C. by the Magistrate.

Learned counsel for the appellants has referred to the D.B. decision of this Court in the case of Abdul Hakeem and another v. The State reported in P L D 1982 Kar. 975 wherein it has been observed that a reading of section 265‑J, Cr.P.C. makes it plain that the statement should be recorded in the presence of the accused, the accused should have notice of the recording of such statement, and he should also be given an opportunity of cross‑examining the witness. On the fulfilment of these conditions, the statement could be brought on record, within the discretion of Court. Such discretion should be exercised if in the process of recording such statement sanctity attaches to it, as normally such statements are recorded only in cases involving capital sentences. The mere fact of a police officer stating that he had put the accused on notice would not be sufficient. Such notice should be in writing, and should also state that he has a right to cross‑examine the witness. Normally in these circumstances an accused knowing the peril in the process would attempt to engage an advocate and ask for copies of the Police statements in advance, so as to effectively cross‑examine the witness. Non‑compliance with the spirit underlying section 265‑J exposes the statement to serious criticism. After all, if an accused is suddenly marched off to the Court and asked to cross‑examine a witness, he cannot effectively exercise his right under the law. It is also a cardinal principle of law enshrined even in the Constitution that every person has a right to be defended by an advocate of his choice. In these circumstances if no proper notice is given, failure of justice might inevitably result, and the Court has to be on caution. In the present case accused Amir Bux was arrested on 23‑3‑1977 and accused All Bux voluntarily surrendered before the police on 24‑3‑1977. The statements were recorded on 26‑3‑ 1977 i.e. after three days of the arrest of accused Amir Bux and after two days of arrest of accused Ali Bux. There is nothing on record to indicate that the accused were put to guard that the statements of the witnesses were to be recorded under section 164, Cr.P.C. In view of the amendment under law the statements recorded under section 164, Cr.P.C. may be read as a substantial piece of evidence under section 265‑J of the Code of Criminal Procedure but before such statements could be accepted against the accused it must be shown by the prosecution that sufficient notice had been given to the accused so that if they wanted to engage a counsel of their choice they could do so. Secondly statements recorded under section 161, Cr.P.C. are to be delivered to the accused seven days before the commencement of the trial. It is not clear whether statements under section 161, Cr.P.C. recorded by the police during investigation were delivered to accused persons. The accused had not sufficient time to prepare their defence and cross‑examine the witnesses. Only one or two questions have been put to the witnesses and the witnesses' statements recorded under section 164 remained unchallenged though the witnesses were cross‑examined at length at the trial.

In these circumstances the statements recorded under section 164, Cr.P.C. cannot be used as a substantive piece of evidence against the accused. Additionally, the witnesses have given two different versions at two stages. Some of the witnesses have been declared hostile and thus according to the prosecution itself they are not worthy of reliance. Thus the ocular testimony as furnished by the prosecution cannot bring home the charge against the accused.

6. Next piece of evidence is the confession of accused Ali Bux. The learned trial Judge has taken into consideration the judicial confession o the appellant Ali Bux against the appellants. The confession has bee retracted. In the confession it has been stated that his mother Mst. Saheban had been abducted by deceased Ibrahim and cases were registered against him. Ibrahim used to attend hearings of cases at Sehwan as well as at Dadu and he used to issue threats to them. The accused however, stated that the did not enquire from him about their mother and continued searching her. Three days prior to this incident it was learnt that Mst. Saheban was staying with the deceased. He and his brother Amir Bux stayed as guest with Ibrahim and at about 12‑00 in the night murdered him while he was sleeping. The theory set up in the confession is contrary to the facts as narrated by the complainant in the first information report. According to the complainant accused used to visit their mother Saheb Khatoon in the house of the deceased and three days prior to the incident the accused had come to Ibrahim and exchanged views with him. They went to their mother and stayed with her. It is in the prosecution evidence that the accused used to visit the deceased and their mother prior to the incident Thus the confession is also contrary to the facts as alleged by the prosecution. There is no corroborative piece of evidence and thus a tainted evidence cannot support another tainted piece of evidence.

7. The next circumstantial piece of evidence is the recovery of pistol at the pointation of appellant Amir Bux. The appellant was arrested on 23‑ 3‑ 1977 at 4‑00 p.m. from Liaquat Colony, Hyderabad vide Mashirnama Exh. 17. He led the police and pistol was secured from 'Sim' drain vide Mashirnama Exh. 18 in presence of Mashirs Mataro Shah and A.S.I. Sohbat Khan. This pistol was sent to expert on 8‑11‑1977. The date of report is not mentioned. Explanation was sought for delay from the Investigating Officer who stated that he did not remember on which date the articles were sent and he could not give any reason for sending the pistol to the expert after a long delay. Similarly the hatchet was produced by accused Ali Bux from under the bridge of Leghari Minor on 24‑3‑1977 in presence of Mashirs Muhammad Bux and Abdullah. The report is in the positive. The hatchet was sent to the expert on 8‑7‑1977 and it was received on 15‑ 8‑ 1977. No explanation has been furnished in sending the articles after such a delay. Thus, these recoveries cannot be used as a substantive evidence against the accused.

It is also to be noted that lantern was secured from the Wardat but Mashirnama of Wardat is in the handwriting of one person acid the Mashirnama of securing of lantern is in the handwriting of another person. The A.S.I. had only signed the Mashirnamas. The way in which the investigation has been conducted also raises doubt of such recoveries.

8. Keeping in view the circumstances of the case the prosecution has not been able to prove the case against the appellants beyond all reasonable doubt. The appeal is, therefore, accepted, and the conviction and sentences recorded against the appellants are set aside. They be set at liberty if not required in any other case. The appeal was accepted by a short order and the above are the reasons for the same.

S.A./A‑28/K Appeal accepted.

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