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Criminal Appeal No. 844 of 1958, decided can 6th October 1959.
Statement of person surviving serious injuries, not dying declaration‑Not relevant under S. 32, Evidence Act (I of 1872)‑Statement of injured forming First Information Report‑Not substantive evidence but admissible under S. 154, Criminal Procedure Code (V of 1898).
The statement of an injured person recorded by a Magistrate was sent to the Police Station and taken down as the first information report. The person making the statement sur vived his injuries and appeared as a prosecution witness. He however, resiled from his statements recorded in the Committing Magistrate's Court. The Additional Sessions Judge came to the conclusion that the parties had effected a compromise, and in his effort to do justice between the parties and find out the truth treated the injured person s state ment, incorporated as the first information report, as a dying declaration, and convicted three out of the 12 accused on the basis of that statement supported by other factors appearing from the prosecution evidence.
Held, that the statement in question could not be called a dying declaration. It was the statement of a dead person alone giving an account of the circumstances of his death which was admissible under section 32 of the Evidence Act as a "dying declaration." If a person survives the injuries, whatever the agony or the degree of expectation of death in which a statement may have been made, it would not be a dying declaration in legal parlance or in the legal sense. However, if such a statement forms the basis of investigation as a first information report, it would be a relevant and an admissible piece of evidence under section 154, Criminal Procedure Code, provided it is not hit by any other provision of law. But it is wrong to treat the first information report in any case as a piece of substantive evidence and a misnomer to call it a dying declaration, if it is the statement of a person who has survived his injuries and is living.
Injuries on accused's person‑Not treated as corroborative item of evidence of participation in crime where eye‑witnesses had not indicated that accused had sustained such injuries during occurrence.
S. 288‑Value to be given to statements transferred to Sessions file‑Depends on how far they can be believed and accepted in context of whole case.
Held, that the value to be given to statements transferred under section 288, Cr. P. C. will depend on how far those statements can be believed and accepted when read in the context of the whole case and on the amount of strength which they can receive from other evidence available in the case. Standing by themselves, such statements do not furnish a safe guide for forming conclusions about the guilt or innocence of an accused person.
Primarily it is the evidence given at the trial which can be considered and used, against an accused person. Evidence of a witness recorded during the commitment inquiry and transferred under section 288 can be transferred, in the direction of the trial Judge, and treated as sustentative evidence, becoming a part of that witness s statement, but this evidence. is subject to the same, if not severer, tests of appreciation and evaluation as any other evidence. If a statement made during commitment inquiry is repudiated at the trial, its evidentiary value is certainly not enhanced but is definitely lowered as, amongst other things, it is the statement of a person who, in view of his conduct, cannot be credited with any scruples for truth and integrity. Technically there may be no legal objection for a conviction being based on such depositions transferred under section 288, Cr. P. C. but as a rule of prudence, now well recognised, Courts must look for positive and material corroboration of such statements. The basic thing to consider as in all types of evidence is, whether the evidence furnished by these statements is true. The mere fact that a witness has gone back on his previous statement and is helping the accused for one reason or another will not raise any presumption that "the previous statement" is true, and the statement made at the trial is false as both may be untrue.
Witnesses modifying initial case set up in First Information Report by swelling number of culprits and modifying story itself, in statement in committing Court‑Renders discovery of truth difficult.
Ch. Nazir Ahmad Khan for Appellants.
Mian Muhammad Saeed for Advocate‑General for Respondent.
Date of hearing: 6th October 1959.
Twelve persons, [(1) Subhan Khan, aged 65 years, (2) Amin Kan, aged 18 years, (3) Alawal Khan, aged 70 years, (4) Shah Nawaz, aged 28 years, (5) Inayat, aged 25 years, (6) Zaman Khan, aged 70years, (7). Nusrat Khan, aged 20 years, (8) Ghulam Mustafa, aged 25 years, (9) Shah Muhammad, aged 32 years, (10) Pehlwan Khan, aged 45 acquit years, (11) Nadir, aged 25 years and (12) Mehram, aged led, except Subhan Khan Amin Khan 45 years.] named in the margin, belonging to Chak No. 70/10‑R, Police Station Khanewal, were placed on trial for constituting an unlawful assembly, and committing rioting, armed with deadly weapons, and in prosecution of its common object, murdering Rajab Ali deceased, attempting on the life of Imam Ali P. W. and causing simple blunt‑weapon injuries to Ahmad Ali, Shan Ali and Qadir Bakhsh P. Ws. All have been convicted under section 302 read with section 149, P. P. C. and each sentenced to transpor tation for life. They have also been convicted on all the remaining counts, and sentenced to various terms of imprison ment, which known however have been made concurrent, with the sentence of transportation awarded under the charge . head, 302/149 relating to the murder of Rajah Ali. The three convicts have appealed against their convictions and sentences.
2. The occurrence which took place on the 9th of April 1958, was the result of a clash between P. W. Qadir Bakhsh and his nephew Imam Ali (P. W. 8) with Shah Nawaz, one of the acquitted accused, and his father Subhan Khan, over the cutting of green wheat crop. Qadir Bakhsh was a tenant of Subhan Khan and had sown wheat in about one and a quarter killa of land belonging to Subhan Khan. Shah Nawaz desired that the green crop be cut and divided but Qadir Bakhsh resisted. There was an initial exchange of abuses and blows between Imam Ali P. W. and Shah Nawaz, followed by the main occurrence in which Rajah Ali lost his life with gunshot wounds, Imam Ali was seriously injured, also with gunshot wounds, and Ahmad Ali, Shan Ali and Qadir Bakhsh from the complainant party received simple hurt with blunt weapons, while the three appellants also received blunt‑weapon injuries. Imam Ali, after receipt of his injuries, was taken to the Civil Hospital, Khanewal, where his statement Exh. P. A. was recorded by Mr. Jamil Ahmad, the then City Magistrate. This statement was sent to the Police Station Khanewal, which was incorporated in Exh. P. A./1 as the first information report, and contains a brief account of the occurrence, giving the immediate cause of it, viz. the dispute over the cutting of the green wheat crop. It is stated therein that Subhan Khan accused had fired the first shot at Rajah Ali, followed by a second shot by Amin Khan,, while the acquitted accused Inayat, and the appellant Alawal gave four or five blows with chhavis to the deceased and when Imam Ali tried to run away, Shah Nawaz, one of the acquitted accused, fired at him. There was no mention of any of the remaining accused having taken any part in the crime. Punnu and Haku were mentioned to have come to the spot immediately on hearing the alarm raised along with several others whose names were not disclosed.
3. Imam Ali and Ahmad Ali, who are both sons of Rajab Ali deceased, and Qadir Bakhsh, brother of his widow, were examined at the trial as eye‑witnesses. They resiled from their statements made in the Committing Court and completely exonerated all the accused persons, including the appellants, from all responsibility in this crime, and instead, gave the version that all the violence in this case was done by Shafi and Haibat, two servants of the accused party. Shafi was said to have fired his gun, causing gunshot injuries to the deceased and Imam Ali, while Haibat, armed with a hatchet, was made responsible for the rest of the damage to the complainant party. The learned Public Prosecutor sought the permission of the trial Court to declare these persons as hostile ‑.witnesses which was given. These witnesses were then cross‑examined by him and confronted with their previous statements in the Committing Court, which the learned trial Court transferred to the Sessions file under section 288 of the Code of Criminal Procedure. Mst. Husain Bibi, the widow of the deceased Rajab Ali, who was cited as a witness for the prosecution in the Committing Court, was given up by the learned Public Prosecutor and was examined in defence. She supported the version given at the trial by her sons, P. Ws. Imam Ali and Ahmad Ali, and her brother, Qadir Bakhsh P. W., affirming that the appellants and their co‑accused did not take any part in the 'occurrence. It may also be mentioned that the other eye‑witnesses mentioned in the first information report, namely, Punnu and Haku, were given up by the prosecution but were examined as defence witnesses during the inquiry.
4. The learned trial Judge has come to the conclusion that the parties had effected a compromise in this case, but in his effort to do justice and find out the truth, he has come to rather queer conclusions for convicting the three appellants and acquitting the rest of the accused. His main reasoning is that against the three appellants, corroboration is available for the statement, Exh. P. A., of Imam Ali, subsequently incorporated in the first information report, Exh. P: A./I, which he wrongly described as the "dying declaration." It may be observed that it is the statement or a dead person alone giving an account of the circumstances of his death which is admissible under section 32 of the Evidence Act as a "dying declaration." If a person survives the injuries, whatever the agony or the degree of expectation of death in which a statement may have been made, it would not be a dying declaration in legal parlance or in the legal sense. How ever, if such a statement forms the basis of investigation as a first information report, it would be a relevant and an admissible piece of evidence under section 154, Criminal Procedure Code, provided it is not hit by any other provision of law. But it is wrong to treat the first information report in any case as a piece of substantive evidence and a misnomer to call it a dying declaration, if it is the statement of a person who has survived his injuries and is living. The learned trial Judge has not expressly stated what he considers to'‑be the corroborative items of evidence against the appellants, but it appears that two factors have weighed with him in this connection, (L) that the appellants bore injuries on their persons, and (2) that in their Committing Court statements, which were transferred under section 288, Criminal Procedure Code, P. Ws. Imam Ali, Ahmad Ali and Qadir Bakhsh, had implicated the appellants, amongst others, as the assailants and participators in the crime. As for the first, no explanation was furnished by the witnesses at the inquiry stage as to how the appellants received their injuries in the occurrence which, we consider could not have been sustained by them if the attack was really one‑sided made by the accused party, armed with guns. The real occurrence seems to have taken place in a different context which the complainant party has deliberately suppressed at all stages, and we can hardly consider the existence of injuries on the appellants as a corroborative item of evidence against them when the witnesses themselves did not give any indication that these injuries were sustained by the appellants during the occurrence. As regards the second, namely, the evidentiary value of the statements transferred under section 288, Cr. P. C. in this case, it is not possible to uphold the view formed by the learned trial Judge Primarily it is the evidence given at the trial which can be considered and used against an accused person. Evidence of a witness recorded during the commitment inquiry and transferred under section 288 can be transferred, in the direction of the trial Judge, and treated as substantive evidence, becoming a part of that witness s statement, but this evidence is subject to the same, if not severer, tests of appreciation and evaluation as any other evidence. If a statement made; during commitment inquiry is repudiated at the trial, its evidentiary value is certainly not bn4anced but is' definitely lowered as, amongst other things, it is the statement of a person who, in view of his conduct, cannot be credited with any scruples for truth and integrity: Technically there may be no legal objection for a conviction being based on such depositions transferred under section 288, Cr. P. C., but as a rule of prudence, now well recognised, Courts must look for positive and material corroboration of such statements. But the basic thing to consider as in all types of evidence, is, whether the evidence furnished by these statements is true. The mere fact that a witness has gone back on his previous statement and is helping the accused for one reason or another will not raise any presump tion that "the previous statement" is true, and the statement made at the trial is false as both may be untrue. Therefore, in our view, the value to be given to statements transferred under section 288, Cr. P. C. will depend on how far those statements. can be believed and accepted when read in the context of the whole case and on the amount of strength which they can receive from other evidence available in the case. Standing by them selves, such statements do not furnish a safe guide for forming conclusions about the guilt or innocence of an accused person.
5. In the present case the depositions of the P. Ws. referred to above recorded during the commitment inquiry suffer from a very grave defect as they make a departure from the prosecution case as Initially set up in the first information report by modifying the story itself and swelling the number of the culprits. When finally at the trial these witnesses take a complete somersault by totally repudiating the earlier statements and giving a clean bill to all the accused persons, it becomes extremely difficult to discover where the truth lies. To sift grain from the chaff in such circumstances becomes an extremely hazardous, if not an altogether impossible, task.
6. In our view, on the evidence in this case, as it stands, ther e is no legal basis on which convictions of the appellants can safely be maintained. We, therefore, are constrained to set aside their convictions and sentences and accepting the appeal, direct that the appellants be released forthwith unless any of them is wanted in any other case.
A. H. Appeal accepted.
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