P L D 1962 Dacca 613 (PLP)

A. J. KHAN, J.‑This is an appeal from the judgment and order of Mr. A. M. Hossain, Sessions Judge, Rajshahi, dated 21‑3‑60 by which he convicted the appellant No. 1 Daud Ali under section 304 (1) of the Pakistan Penal Code and sentenced him to transportation for life and he convicted the appellant No. 2 Ghulam Mustafa under section 326 of the Pakistan Penal Code and sentenced him to rigorous imprisonment for two years.

2. The prosecution story, briefly stated, as follows : On the 9th Agrahayan 1366 B. S., corresponding to 26‑11‑59, after sun rise, i.e., at about 7 a.m. deceased Dukhu Molla started for his house at Haripur from his bathan (a temporary shed for keeping cattle and looking after cultivation and harvesting in a char land) at Mauza Digha with a cartload of straws. When he proceeded upto a distance of about 80 cubits, he was suddenly attacked by one Wazed Ali, the father of the two appellants before us, and the two appellants and some others, armed with falas, lathis etc. The deceased then ran towards his bathan, leaving the cart load straws there. The miscreants came to the bathan where the appellant Daud Ali struck him with a spear at his chest, where upon he fell down on the ground and died instantaneously. P. W. 2 Budhu, a son of the deceased, came to the rescue of his father when the appellant Ghulam Mustafa dealt with him a farsha blow (a kind of spear). P. W. 3 Jahir, another son of the deceased, also appeared there but he was also assaulted by some of the miscreants with lathis, causing several injuries on his person. Alarm being raised, the witnesses including P. W. 4 Md. Solaiman, P. W. 6 Md. Haris Mandal, tendered witnesses. P. W. 5 Tainus and P. W. 7 Gudhar Mondal and others came there and Budhu and Jahir reported to them all about the occurrence and named the accused to them. One Abul Hossain P. W. 1, on receiving information of the incident, went to the Godagari police station, about ten miles from Digha and about eight miles from the village Haripur lodged information with the Officer‑in‑charge P. W. 10 Azimuddin Ahmed. After lodging the first information report, Abul Hossain hastened to the spot and found the deceased Dukhu Molla lying dead near his bathan. He also found Budhu grievously injured. The Officer‑in‑charge P. W. 10 came to the place of occurrence held inquest on the dead body of Dukhu Molla and sent it to the Rajshahi morgue through constable Rasul Baksh, P. W.

8. He also sent the injured Budhu and Jahir to the Rajshahi Sadar Hospital where they were examined by Dr. Abdus Salam (P. W. 9) who found as many as five injuries on the person of Jahir and two injuries on the person of Budhu. Budhu was admitted as an in‑door patient to the Hospital for treatment and he was detained there for about a month for such treatment. Dr. S. Hossain, P. W. 11, the then Assistant Surgeon, Rajshahi Sadar Hospital, held post‑mortem examination on the dead body of Dukhu Molla on 27‑11‑59 at 4 p.m. and found one penetrating wound 1 " x " x chest cavity situated in the front of the chest on the right side in the 9th intercostal space and one incised wound on the left wrist " x " x ". The tenth rib on the right side was fractured near its sternal end. In the opinion of the doctor, the death of Dukhu Molla was due to shock and haemorrhage as a result of the injury No. 1 which was homicidal in nature. P. W. 10 after completing investigation submitted charge‑sheet against the appellants.

3. Motive for the crime, as alleged by the prosecution was that the deceased and his two sons who have a bathan and some lands in Mauza Digha, had dispute over the bathan with one Abul Hossain and Wazed Ali, father of the appellants and the latter claimed the land on which the bathan stands and hence this occurrence.

4. After the usual preliminary enquiry by a competent Magistrate, the appellants were committed to the Court of Sessions to stand their trial.

5. The appellant No. 1 Daud Ali was charged under section 304 of the Pakistan Penal Code for committing culpable homicide not amounting to murder causing the death of Dukhu Molla and the appellant No. 2 Ghulam Mustafa was charged under section 326 of the Pakistan Penal Code for voluntarily causing grievous hurt to Budhu by means of a farsha which is an instrument for cutting.

6. Both the appellants pleaded not guilty to the respective charges levelled against them. Their defence was that the occurrence did not take place at the time, as alleged by the prosecution, and it was suggested that the occurrence took place at the later par‑t of the night when it would not be ascertained who assaulted whom.

7. The trial was held with the aid of four Assessors. Three of the Assessors were of the opinion that the appellant Daud Ali was guilty under section 304(11) of the Pakistan Penal Code while the remaining one did not find him guilty either under section 304 (I) or under section 304 (11) of the Code. Two of the Assessors found the appellant Ghulam Mustafa guilty under section 326 of the Pakistan Penal Code while one found him guilty under section 324 of the Code and the other did not find him guilty either under section 326 or 324 of the Pakistan Penal Code. The learned trial Judge, however, found the appellant No. 1 Daud Ali guilty under section 304 (I) of the Pakistan Penal Code and convicted and sentenced him, as stated above, and he found the appellant No. 2 Ghulam Mustafa guilty under section 326 of the Pakistan Penal Code and convicted and sentenced him, as stated above: This appeal is directed against these convictions and sentences.

8. There is no dispute about the fact that Dukhu Molla met with an instantaneous death just near his bathan in Mauza Digha as a result of the injuries sustained by him in his chest on the right side on 26‑11‑59, corresponding to the 9th Agrahayan 1366 B. S. P. W. 1 Abul Hossain found him lying dead there. P. Ws. 2 and 3, the two sons of the deceased, who claimed to have witnessed the occurrence, saw the deceased being injured at that spot and they have stated that the deceased on receiving the strokes fell down on the ground died then and there. P. Ws. 4 and 6 who came to the place of occurrence immediately after the occurrence also found Dukhu Molla lying dead with injuries near his bathan. P. W. 10 Azimuddin Ahmed, the officer‑in‑charge of Godagari police station, held inquest on the dead body of the deceased Dukhu Molla and sent it to the morgue through constable No. 8 Rasul Baksh for post mortem examination and the latter identified the dead body P. W. 11 Dr. S. Hasan at the time of post mortem examination. Dr. Hasan held post‑mortem examinations on 27‑11‑59 at 4 p.m. and found two injuries‑one penetrating wound 1 " x " x chest cavity. He also found another incised wound on the left wrist " x " x ". Both visceral and parietal layers of pleura were punctured by a wound 1' x ". The right lung was punctured at the lower lobe by a wound 1" x " x 1 ". The liver was punctured on its postero superior border by a wound 1" x " x 1 " x ". The doctor has stated that the injury No. 1, as described above, had caused in its make the injury to the right lung and the injury to the liver all of which communicated with each other, and that all these injuries were antemortem and caused by a sharp weapon. Further, this doctor opined that death was due to shock and haemorrhage as a result of the injury No. 1 which was antemortem and homicidal in nature.

9. The evidence of these witnesses has remained un challenged. On a consideration of the evidence discussed above, we have no hesitation to hold that Dukhu Molla died as a result of the injury No. 1 in his chest. We may further state here that P. W. 2 Budhu also sustained a grievous injury on his right arm in that occurrence and that has not been disputed either in the Court below or before us. Budhu himself and his brother P. W. 3 Jahir have deposed that Budhu was dealt a farsha blow on the right arm causing a bleeding injury. P. Ws. 1, 4 and 6 have also deposed that they found on arrival at the spot an injury on the person of Budhu. P. W. 9 Dr. Abdus Salem who examined Budhu on 27‑11‑59 at 10‑28 a.m. found the following injuries on his person: ‑ (1) One gaping incised wound 3 " x 1 " x muscle cut, transverse in direction with talling outwards on the antero medial aspect of the right arm at its lower 1/3rd. (2) One small abrasion with swelling ground on the top of the head". The injured was admitted into the hospital on the same day and was discharged on 31‑12‑59, during which period he could not follow his ordinary pursuit of life. In cross‑examination he has stated that a patient is not detained unnecessarily and he categorically denied the defence suggestion that Budhu was detained unnecessarily for the purpose of this case.

10. From the foregoing evidence, there can be no manner of doubt in our mind that P. W. 2 Budhu sustained injuries in the occurrence in question.

11. Mr. Salam Khan who has appeared on behalf of the appellants has contended that the occurrence did not take place at the time, as alleged by the prosecution, but it took place in the small hours of night when it was not possible to recognise the assailant or assailants of the deceased and injured Budhu. Let us, therefore, examine the evidence on record to see at what time the occurrence took place and whether the appellant No. 1 was responsible for causing the death of the deceased Dukhu Molla and the appellant No. 2 was responsible for voluntarily causing grievous hurt to P. W. 2 Budhu. Accord ing to the prosecution, P. Ws. 2 and 3 are eye‑witnesses to the occurrence and recognised the appellant No. 1 Daud Ali who dealt the fatal blow on the deceased Dukhu Molla and the appellant No. 2 Ghulam Mustafa who had voluntarily caused hurt to P. W. 2 Budhu. It is also the prosecution case that P. W. 4 Solaiman, P. W. 6 Hares Mondal appeared at the scene immediately after the occurrence and they were told by P. Ws. 2 and 3 about the recognition of the appellants. It may be noted here that the learned trial Judge has convicted the appellants on the evidence of these witnesses given in the com mitting Court and admitted by him under section 288 of the Code of Criminal Procedure. An interesting feature of this case, is that the two eye‑witnesses of the occurrence and the two corroborating witnesses were all declared hostile by the prosecution and some of them were cross‑examined by the prosecution. They were cross‑examined by the defence and the evidence of these witnesses recorded by the committing Magistrate was admitted in evidence under section 288 of the Code of Criminal Procedure. The learned trial Judge, it appears, admitted the evidence of these witnesses given in the committing Court under section 288 of the said Code on the prayer of the Public Prosecutor to the effect that he might be allowed to cross‑examine these witnesses as they had concealed the truth to which they testified before the committing Court and that their evidence before the said Court might be admitted in evidence under section 288 of the Code of Criminal Procedure. The learned trial Judge, it appears, recorded in his order‑sheet that the witnesses were definitely gained over and accordingly, he declared them hostile, and permitted the Public Prosecutor to cross‑examine them.

12. It appears from the evidence of P. Ws. 2 and 3 in the trial Court that although they were present in the occurrence and although P. W. 2 was injured by some of the miscreants who also killed their father Dukhu Molla at the spot, they did not recognise the real assailants. It was stated by P. W. 2 in the trial Court that the occurrence took place a little before dawn when it was still dark and he could not say who killed his father, as he was a bit far away. He has further stated that he was struck by a farsha but he could not mark the assailant. His attention was drawn to his evidence before the committing Court wherein he stated that the occurrence took place after sunrise and that the appellant Daud Ali gave a ballam blow to his father and that the appellant Ghulam Mustafa struck him on his right arm with a fala. He stated that he did not remember to have said so in the committing Court. P. W. 3 Jahiruddin stated in the trial Court that the occurrence took place at 7 a.m. when 20 or 25 persons armed with lathi fala came to their bathan and one of them looking like the accused Daud Ali struck his father at his chest with a weapon, and he could not say, whether it was a fala or farsha and his brother Budhu was struck by a person looking like the appellant Ghulam Mustafa with a weapon looking like a farsha and he was also assaulted and in the committing Court he stated that after sun rise when his father was going on a bullock cart loaded with the straw of paddy from their bathan and when they proceeded a rashi off towards east, the appellants and others numbering about ten armed with lathi, falas attacked his father upon an altercation and he was given the fatal blow by the appellant Daud Ali with a fala on his chest and the appellant Ghulam Mustafa injured his brother Budhu with a farsha. In cross‑examination by the defence he has stated in the trial Court that he could not say time by clock and it was the fajar prayer time when his father left. The evidence of P. W. 3 further in the trial Court is that P. Ws. 4, 6 and others came to the place of occurrence but he reported nothing to them. In the committing Court he stated that those P. Ws. 4, 6 and others had seen toe entire incident. P. W. 2 stated in the committing Court that Kandoo, Gudar, Rais and others had seen the incident. He did not, however, state in the committing Court that he told about the occurrence and the recognition to P. Ws. 4, 6 and others. In the trial Court also he did not say anything like that. P. W. 3 has stated in the trial Court that they lost their senses when assaults went on. They regained their sense at 10 or 12 a.m. and then found Raisuddin, Tainus, Soleman, Gudar and others and they reported to them nothing. In the committing Court he stated in examination‑in -chief that P. Ws. Rais, Bani Haris, Sulaiman, Gudar had seen the entire incident. This witness does not say either in the com mitting Court or in the trial Court that he reported the occur rence and named the accused to have been recognised by him to P. W. 4 Soleman and P. W. 6 Haris Molla or to any other person. , After the cross‑examination by the defence in the committing Court he, however, stated in answer to Court's question that he reported the incident to other witnesses of this case. In cross‑examination, however, he stated that he did not state to the police officer that he reported the incident to the other witnesses for the other witness had seen the incident.

13. P. W. 4 Soleman stated in his evidence in the trial Court that he has got lands and he also used to work as a day labourer. In Agrahayan, 1366 B. S. he went to Digha to harvest paddy of Abul Hossain and he was staying with four other persons in a temporary shed which is about half a mile from the bathan of the deceased Dukhu Molla. According to him the occurrence took place within the compound of the bathan of Dukhu at about Fajar prayer time when it was a bit dark and at that time he went out of their shed to make water. On hearing alarm from the bathan of Dukhu Molla he and the other labourers proceeded towards that bathan of Dukhu Molla but they stopped after proceeding upto a distance of 160 cubits and some time after they went to the bathan of Dukhu Molla and found him lying dead. They also found his sons bewildered and crying. He found an injury in the chest of Dukhu and also an injury on the right arm of Budhu but none reported to them anything. In the com mitting Court he stated that on the date of incident when they (including one Raisuddin) were cutting paddy of one Manta, from a distance of one rashi they heard a golmal in the bathan of Dukhu Molla. They did not go to the bathan. Then the culprits escaped, whom he did not recognise. After that when they went to the bathan they found Dukhu lying dead and Budhu with injuries and Zahir reported that accused Dawood beat his father with a ballam and Budhu had been assaulted by Ghulam Mustafa with a farsha. When attention was drawn to this evidence by the Public Prosecutor he stated that he did not remember to have stated in the committing Court that Zahir told him about Daud's injuring his father with a ballam and Budhu having been assaulted by the accused Ghulam Mustafa with a farsha. As has been pointed out above, we do not how ever, find anything in the evidence of P. W. 3 Jahiruddin Mondal either in the committing Court or in the trial Court that he named the appellants to this witness as the assailants of his father and brother respectively.

14. P. W. 6 Haris Mondal stated in the trial Court that on the date of occurrence he went to Digha to reap paddy of Abdur Rahman. In that connection he used to stay at the bathan of Abdur Rahman about half a mile off from the bathan of Dukhu. On the date of occurrence when he was at the bathan of Abdur Rahman, he heard golmal from the bathan of Dukhu while it was dawn. It was then a bit dark. He was then thrashing paddy at the bathan of Abdur Rahman. He then loaded up a bullock cart and thereafter went to the bathan of Dukhu and he found Dukhu lying dead and he also found an injury on the person of Budhu and none reported to him anything about the incident. In the committing Court he stated that he heard a golmal at Fajar near the bathan of Zahir when he was loading up paddy on bullock cart in the bathan of Abdur Rahman. He saw at a distance that maramaria was going on the bathan of Zahir but he did not recognise any of the culprits. After the maramaria was over he went to the bathan of Zahir and found Dukhu dead. Zahir reported to him that accused Daud had killed his father with a ballam and accused Ghulam Mustafa had assaulted Budhu with a farsha. In cross‑examination he stated that he did not state to the investigating Officer that he got the above report of the incident from Zahir. Zahir has not, as has been pointed out above, stated either in his evidence before the committing Magistrate or the trial Court that he named the appellants to this witness as the assailants of his father and brother res pectively. In this state of evidence it is difficult to under stand why the learned trial Judge preferred the evidence of the two eye‑witnesses and of P. Ws. 4 and 6 given in the committing Court and admitted in evidence under section 228 of the Code of Criminal Procedure to that given by them in the trial Court. So far as the evidence of P. W. 3 Jahiruddin Mondal is concerned, the learned trial Judge has observed as follows: ‑ "If his present and earlier statements be compared, the only inference that may be drawn therefrom, is that he has resiled from earlier statement with no other intent than to exculpate the accused Daud from the liability of the crime due to some extraneous influence. This is why, his earlier statement can be preferred to his present statement." With reference to the evidence of P. W. 2 Budhu he has observed as follows: ‑ "So, if his present and earlier statements be read together, the only conclusion that can be drawn therefrom is that he was gained over by the accused party subsequent to his statement before the committing Court and that this is why he has introduced a new ‑ stork before this Court just to exculpate the accused Daud from the liability of the crime due to some extraneous influence. In this view of the matter, his statement before the committing Court can be preferred to his statement before this Court." The learned trial Judge further observed in his judgment that P. W. 3 Jahir and P. W. 2 Budhu also stated before the com mitting Court that on their alarms came, Md. Soleman (P. W. 4) Md. Haris Mondal (P. W. 6) and other to the place of occurrence immediately after the occurrence and they reported to them that the accused Daud had killed their father with a spear blow and that the accused Ghulam Mustafa had caused an injury on the right arm of Budhu with a farsha. As has been pointed out above this observation of the learned trial Judge is not correct.

15. So far as P. Ws. 4 and 6 are concerned, the learned trial Judge has also made the same observation as in the case of P. Ws. 2 and

3. His observation runs thus; "So, the evidence of these 2 witnesses before this Court as also before the committing Court, if read together, will show that they have also introduced a different story before this Court just to exculpate the accused Daud from the liability of the crime due to some outside influence. This is why their evidence before the committing Court can be preferred to their evidence before this Court."

16. Mr. Khan has not disputed the position of law that under section 288 of the Code of Criminal Procedure the evidence of a witness duly recorded in the presence of the accused in the committing Court, may in the discretion of the presiding judge if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872. But he has contended that in this case when all the material prosecution witnesses were declared hostile and when the evidence before the committing Court was admitted by the trial Judge in evidence under section 288 of the Code of Criminal Procedure for all purposes and when he based the conviction of the appellants on such evidence before the committing Court, he should have come to a finding as to possible reasons for the witnesses having resiled from their earlier statements on evidence given before him. In support of his contention he has relied upon the case of Lal and 2 others v. The Crown (P L D 1954 F C 95). In that case M. Shahabuddin and A. R. Cornelius, JJ. delivering the judgment of the Court observed at page 101 as follows: ‑ "While, therefore, the Court has discretion to prefer the earlier statement of witness such as P. W. 3 which has been transferred under section 288, Cr. P. C. to his later statement at that trial, that discretion must be exercised with great care, on a careful scrutiny of the two conflicting statements in rela tion to all other evidence and circumstances appearing from the record and, not on mere summarize or conjecture as to possible reasons for the witness having resiled from his earlier statement." What happened in this case was that the Sessions Judge in convicting the appellants relied on the evidence of P. Ws: 3 and 4, who are son and father respectively, before the committing Magistrate treated as substantive evidence under section 288 of the Code of Criminal Procedure. The learned Judges of the High Court, accepted as true the evidence of P. Ws. 3 and 4 given in the Court of the committing Magistrate on the following grounds: ‑ (1) The P. Ws. 3 and 4 had no motive for implicating the appellant falsely; (2) that though two counsel appeared for the accused before the Magistrate, P. Ws. 3 and 4 were not cross- examined there at all ; (3) that the silence of P. W. 3 on the first day could reasonably be due to the accused persons' "threats and his readiness to speak on the next day to the effect of the threats, having worn off" when the talk of the murder became general, and (4) that "the earlier statements of the father and son ring true". Their Lordships of the Federal Court observed as follows: ‑ "The observation of the learned Judges that P. Ws. 3 and 4 subjected to some influence on behalf of the accused is an assumption for which there is no foundation. No suggestion to that effect was put to them when they were cross‑examined by the prosecution at the trial nor is there any indication in the evidence that the applicants were so influential that even after they were committed to Sessions these witnesses could be gained over."

17. In this case excepting what was recorded by the learned trial Judge in the order‑sheet on the basis of the appli cation filed by the Public Prosecutor that the witnesses were gained over and were not speaking the truth in the trial Court and as such they should be declared as hostile and their evidence in the committing Court should be admitted in evidence under section 288 of the Code of Criminal Procedure, there is nothing on record to show that the witnesses falsely deposed in the trial Court under any extraneous influence. The contents of the petition of the Public Prosecutor not supported by any evidence cannot be made the foundation of the Judge's observation that the witnesses were gained over and that they did not depose the truth in the trial Court. It may be noted here that the mere permission to cross‑examine party's own witness does not amount to an expression of opinion by the Court that the witness is a witness of untruth. The object of the permis sion to cross‑examine is to test the veracity of the witness when B he unexpectedly makes statements which were not expected of him or when he displays a tendency to conceal the truth. Whether the testimony of such a witness should be rejected in whole or accepted in part depends entirely on the result of the cross‑examination.

18. In this case no suggestion was put to P. Ws. 2, 3, 4 and 6 in cross‑examination that they were resiling from their previous statements before the committing Court and as such concealing the truth as they had been gained over or had been under any other extraneous influence. We have carefully scrutinised the cross‑examination of these witnesses in the trial Court made both by the prosecution as well as by the defence and we are not prepared to reject their evidence given in the trial Court. Before accepting the evidence of P. Ws. 2 and 3 given in the Committing Court, the learned Judge ought to have looked for corroboration of the same in the evidence A given before him but no such corroborative evidence is found on record. That such corroboration is necessary is evident from the fact that these witnesses discredit themselves by making conflicting statements in the trial Court as also in the Committing Court. So, for the reasons stated above we do not feel it safe to rely upon the evidence of the witnesses given before the Committing Court. Prosecution has, therefore, failed to prove beyond all reasonable doubt that the occur rence took place at the time as alleged and that the appellants were responsible for causing the injuries on the deceased Dukhu Molla and Dudhu respectively. We, therefore, give them benefit of doubt.

19. The appeal is accordingly allowed. The conviction and sentences of the appellants are hereby set aside and they are acquitted of the charges levelled against them.

20. Appellant No. 1 Daud Ali be set at liberty at once, if not wanted in connection with any other case and appellant No. 2 Ghulam Mustafa who is on bail is discharged from his bail bond. SALAHUDDIN AHMED, J.‑I agree. S.B./A.H Appeal allowed.