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Criminal Appeal No. 797 of 1962/Murder Reference No. 172 of 1962, decided on 31st May 1963.
S. 164‑Statement recorded can be used by prosecution to impeach credit of their own witness ‑ Evidence Act (1 of 1872) Ss, 155(3) & 145.
S. 164‑Statement cannot be used to contradict witness without his being confronted with it and given opportunity to explain.
S. 164‑Contradiction in evidence of statement made under section 164‑Court precluded from using contradiction for benefit of accused unless witness had been given opportunity to explain contradiction.
S. 164‑Statement-- Not substantive evidence.
M. Sleem and Maqbool Ahmad II for Appellant.
S. Zafar Ullah for Respondent.
Date of hearing : 13th March 1963.
‑Abdul Ghani, who strangled Mst. Saeeda to death on the 19th of May 1962, was tried by the learned Sessions Judge, Sialkot, who convicted and sentenced him under section 302, P. P. C. to suffer death. The condemned person has appealed and the Sessions Judge has referred the case under section 374, Cr. P. C. for confirmation of the death sentence. This judgment will dispose of the appeal and the reference.
2. Shortly stated, the prosecution case is that the appellant, who was carrying on with the deceased, took her to a kotah at a well and there strangled her to death as he could no longer bear with her because she had also developed illicit intimacy with Muhammad Shafiq. Fazal Husain alias Chhabba, a boy of 12 years of age, who passed by that kotha shortly before the unfortunate woman was actually strangled to death, had seen Abdul Ghani having an altercation with Mst. Saeeda deceased, and, as the boy looked through the window, Abdul Ghani threatened him and told him that he had no business to be there. Fazal Husain ran away towards his well where he was going to cut fodder and came across Muhammad Sadiq, son of Nathe Khan, and Muhammad Sadiq, son of Imam Din, in the way and informed them of what he had seen. Both of them proceeded towards the kotha and saw the appellant sitting on the chest of the victim. The appellant ran out of the kotha when he saw them approaching and managed to escape. Muhammad Sadiq, son of Nathe Khan, left for Police Station Sadar where he lodged the report at 5‑30 p. m. on the 19th of May 1962.
3. The Sub‑Inspector Police, who investigated the case, prepared the statement of injuries and the inquest report. The dead body was actually taken to the mortuary on the following day as Muhammad Ahmad, the father of this woman, was unable to make necessary arrangements for having the dead body of the victim carried to the morgue.
4. The appellant was arrested on the 22nd of May 1962.
5. The autopsy on the deceased's dead body was held by
Dr. Nasrullah Khan, Medical Officer, Civil Hospital, Sialkot (P. W. 1), at 12‑15 p.m., on the 20th of May 1962.
Mst. Saeeda had:-
(1) Three irregular abrasions on the right side of the face, 1 1/3" x 1/3' , 1/3' x 1/10" and 1/3"x 1/5' .
(2) An irregular abrasion above the right eye‑brow, " x ".
(3) An irregular abrasion above the outer and of the left eye‑brow, 1/3 x 1/3".
(4) An abrasion on the left side of the face, 1" x ".
(5) A scratch 1" to the left of the left angle of the mouth, " x 1/10".
(6) (i) Multiple irregular abrasions of varying sizes and shapes in the upper half of the neck and under the chin, one just under the chin about 4" x ", irregular in dimension.
(ii) Three finger marks with nail marks discernible on the left and lower part of the neck and a thumb‑like mark on the right side below the right angle of the jaw. Left side of the neck contused and eccbymosed, swollen up to the supraclavi- cular fossa. Right side of the neck below the right angle of the jaw was contused and ecchymosed. On dissection, muscles were found bruised on the left side of the neck with free dark blood under the facial skin as also on the right side of the upper part below the right angle of the jaw. Muscles were markedly bruised. Hyoid bone was fractured. Trachea and larynx were markedly congested with blood and froth and fracture of the larynx cartilage on the left side.
(7) An abrasion on the right side of the back over the last rib, " x ".
(8) An abrasion over the left outer malleclous, " x ".
(9) An abrasion on the inner side of the left heel, '' x 1/3".
(10) Ecchymosis on the back of the left lobule and lower part of the pinna.
Larynx, trachea, mucus membrane were congested with blood and mucus. Lungs were congested. Right side of the heart contained fluid blood and left side was empty. Death in the opinion of the doctor, was due to asphyxia as a result of throttling. All the injuries were ante‑mortem.
6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. His defence was that he had been falsely implicated in the case in order to save the real culprits. He amplified his statement, when examined at the trial, which we reproduce below:-
"So far as I can say, I have been implicated by Fakhar Din P. W. Lease of our land in his favour had expired and he was not relinquishing possession of land. The relations were, therefore, strained between him and us. As the kotha wherein the dead body of Kist. Saeeda deceased is said to have been found was in the possession of Fakhar Din P. W. as tenant, he implicated me falsely in order to escape his own liability."
Defence evidence was not called.
7. There is no denying the fact that Mst. Saeeda deceased was married, but she was immoral and her father had towards the middle of the month of May consulted Mr. Akram Hayat, a lawyer of Sialkot, in connection with a suit for dissolution of marriage which she intended to bring against her husband. According to Muhammad Husain, Chairman of the Union Council of Wards Nos. 4 and 5 of Sialkot City, she was seen by him flagrante delicto with the appellant three or four months prior to the occurrence under consideration and he reprimanded the appellant who gave out that Mst. Saeeda had illicit relations with Muhammad Shafiq also and added, that there was every possibility of his murdering Muhammad Shafiq or Mst. Saeeda and an equal possibility of his being murdered by Muhammad Shafiq. It appears the appellant wanted Mst. Saeeda exclusively to himself but we cannot say what impelled Abdul Ghani to take the life of the woman because there is no evidence on that point. As a matter of probability, it would be reasonable to presume that the woman was killed because she did not agree to sever her connections with Muhammad Shafiq.
8. As to the occurrence itself, the prosecution relied on the evidence of Muhammad Sadiq, son of Nathe Khan, Muhammad Sadiq, son of Imam Din, Fazal Husain alias Chhabba and Fakhar Din. Muhammad Sadiq, son of Nathe Khan, is a member of Union Council No. 22 and in his capacity as such had gone to verify if Mehar Din and Hasan Din had encroached on a public thoroughfare. This is borne out from the statements of Shabir Husain, Secretary Union Council (P. W. 4), and Zahoor Elahi (P. W. 5). Since Zahoor Elahi was not present, Muhammad Sadiq, son of Nathe Khan, asked Muhammad Sadiq, son of Imam Din, to point out to him the land in dispute. They were still at a distance of 60 or 65 kararns from the kotha, where the tragedy was enacted, that they learnt from Fazal Husain alias Chhabba that Abdul Ghani the owner of the garden, was having an altercation with a woman inside the kotha. They went towards the kotha and saw the appellant sitting on the chest of the woman and strangulating her. When Abdul Ghani saw them he ran away towards the west. Fakhar Din, who also came to the spot, confirmed that some time before the occurrence Abdul Ghani had come to his haveli with the deceased and they had taken a drink of lassi. Leaving Muhammad Sadiq, son of Imam Din, on the spot, Muhammad Sadiq, son of Nathe Khan, went and lodged the report at Police Station Sadar at 5‑30 p. m. on that day. He mentioned the time of the occurrence as laudewela in his report to the police. He, however, stated at the trial that the occurrence took place at Ducca chhahwela and further fixed it at about 9‑30 a.m. Muhammad Sadiq (P. W. 10) had clearly said in his statement to the committing Magistrate that the occurrence took place in the afternoon. He was, therefore, allowed to be cross‑examined by the Public Prosecutor. He was confronted with his statement which he had made to the committing Magistrate, and Muhammad Sadiq admitted that he made an incorrect statement when he said at the trial that the occurrence took place at pucca chhahwela or at 9‑30 a. m. The witness tried to explain the discrepancy by saying that he was given a cigarette by somebody outside the Court‑room before he was ushered in to make a statement and after smoking that cigarette the witness felt giddy and gave the time of the occurrence as pucca chhahwela or 9‑30 a. m. in his statement. At this stage, the further examina tion of this witness was postponed to the following day by the learned Sessions Judge, and when Muhammad Sadiq appeared in Court on the following day after the effect on him of the cigarette had vanished, he stated in reply to a Court question that the occurrence in fact took place at laudewela. At the conclusion of the statement of this witness, his entire statement which he had made to the committing Magistrate was brought on the record in accordance with the provisions of section 288, Cr. P. Code. It was read out to the witness and the learned Sessions Judge recorded a note to the effect that it shall form part of the evidence at the trial. No objection was taken to it on behalf of the appellant. On going through these statements we are left with the impression that Muhammad Sadiq, son of Nathe Khan, deliberately changed the time of occurrence from laudewela to pucca chhahwela in order to help the appellant. The belief, in our mind, that the occurrence took place at laudewela and not at pucca chhahwela is further confirmed on going through the statement of Muhammad Sadiq, son of Imam Din (P. W. 11). He is positive that Muhammad Sadiq, son of Nathe Khan, came to his tube‑well at 3‑30 p. m. on the day of the alleged occurrence and since Zahoor Elahi who had complained about the encroach ment was not present there, Muhammad Sadiq (P. W. 10) asked him to go and point out the land in dispute. Muhammad Sadiq says that they were still at a distance of 60 or 65 karams when they met Fazal Husain alias Chhabba and learnt from him that Abdul Ghani, the owner of the garden, at Chah Kaghazianwala was having an altercation with a woman inside the kotha. Muhammad Sadiq (P. W. 11) stated in cross‑examination by the defence that Muhammad Sadiq, son of Nathe Khan, had reached his tube‑well at about 1‑30 p. m. and had stayed with him for an hour or an hour and a half before they left the tube‑well. The statement of this witness is very clear as to the time of the occurrence. Fazal Husain alias Chhabba also gave the time of the occurrence as laudewela in his statement at the trial. In his statement which had been recorded under section 164, Cr. P. Code he had stated that he had gone to Chah Hajianwala at 12 noon to bring fodder for his cattle. The attention of this witness was not, however, drawn to this part of his statement, nor was he contradicted with it by the learned defence counsel when Fazal Husain was cross‑examined by him. Mr. Sleem, the learned counsel for the appellant, argued that since the prosecution proved the statement of this witness recorded under section 164, Cr. P. Code by calling the Magistrate who recorded it, the same could be used for the purpose of showing that the occurrence took place not at laudewela but much earlier. We do not agree. The prosecution is entitled to use the statement of a Witness recorded under section 164, Cr. P. Code to impeach the credit of their own witness. This is permitted under section 155 (3) of the Evidence Act. Section 145 provides that al witness may be cross‑examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contra dicting him.
9. Now, what the prosecution in the case under considera tion did was that they did not have only those portions of 164 statement proved with which the prosecution had confronted their own witness but brought on the record the entire 164 statements by calling the Magistrate as a witness who had recorded those statements before the witnesses making such statements were actually produced and examined by the prosecu tion. Even then, in our opinion, the previous statement of Fazal Husain alias Chhabba recorded under the provisions of section 164, Cr. P. Code cannot be referred to in order to bring out the contradiction because the witness was not confronted with that portion of his statement, nor was he given an opportunity to explain the discrepancy, and, further, that the portion of the statement which the defence now seek to use to bring out the contradiction was never properly proved. The learned counsel for the appellant did not refer to any ruling in support of the contention that 164 statement of a witness can be used without the witness being confronted and given the opportunity to explain the contradiction. Mr. Zafarullah, who appeared for the State, was also not of much assistance to us in this connection. All that we know is that 164 statements are not substantive evidence in the case and the limited purpose for which the same could be used is to negative the evidence of the witnesses by bringing out contradictions after confronting the witnesses with their previous statements and having those portions of the statements properly proved on the record. In the case under consideration, Fazal Husain alias Chhabba was not confronted with the apparent contradiction regarding the time of the occurrence and as such we are of the view that we are precluded under the law from referring to that contradiction and using it for the benefit of the appellant. Fazal Husain alias Chhabba also said in his statement that he could not identify the person present inside the kotha with the woman as it was dark inside the room. He clearly said in his 164 statement that the man who was quarrelling with the woman was Abdul Ghani. There are two windows and a door of this kotha and the windows were open at the time of the occurrence as admitted by Muhammad Sadiq, son of Nathe Khan, which goes to show that Fazal Husain alias Chhabba lied when he stated at the trial that he was unable to identify the person quarrelling with the deceased in the kotha because it was dark. Fakhar Din, who is a tenant of Muhammad Sharif, father of the appellant, and cultivated land at Chah Kaghazianwala where the occurrence took place, had seen the appellant running away from the scene of tragedy. He gave the time of the occurrence as 1 or 1‑30 p. m in his statement at the trial. The witness in his statement had definitely said to the committing Magistrate that it was 2 or 2‑30 p. m. when Abdul Ghani came to his haveli with the deceased. Fakhar Din is not a reliable witness, for he changed his statement at every stage suiting the occasion. He stated at the trial that he, along with Ramzan Arain and Zahoor Elahi, had gone to the police to lodge the report. To the contrary, he said in his 164 statement that Muhammad Sadiq, Member Union Council, had gone to the police station to report the occurrence. Fakhar Din denied having seen the appellant running out of the kotha. In his earlier statements he said that he saw Abdul Ghani running out of the kotha, but the statement under section 164, Cr. P. Code not being substantive evidence, the prosecution cannot take advantage of it. We have already held that Muhammad Sadiq (P. W. 11) is a reliable witness. He was mentioned in the first information report as an eyewitness to the occurrence, and we prefer to rely on the evidence of Fazal Hussain alias Chhabba and Muhammad Sadiq. Their statement regarding the time of the occurrence is corroborated by the medical evidence which we have no reason to distrust.
10. On a careful consideration of the evidence and the attendant circumstances, we are satisfied that the appellant and no other person was responsible for the murder of Mst. Saeeda. On the view of the evidence that we have taken, the conviction of the appellant under section 302, P. P. C. is correct. He forfeits his life. For all these reasons we dismiss the appeal of Abdul Ghani and confirm the sentence of death.
K. B. A. Appeal dismissed.
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