P L D 1965 Supreme Court 188 (PLP)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, is directed against the judgment and order of a Division Bench of the High Court of West Pakistan acquitting the first five respondents herein and refusing to confirm the sentences of death imposed upon them by the Sessions Judge of Gujranwala. The said respondents were tried under sections 302/149 and 148 of the Pakistan Penal Code for having formed themselves into an unlawful assembly with the common object of committing the murder of the deceased Khurshid Alam Shah and in prosecution of that common object to have actually on the 29th of July 1961, at about noon time, committed the murder of the said Khurshid Alam in the area of village Mohanpur Sayyadan in the district of Gujranwala. The said respondents, who were residents of village Mohanpur Pakhiwaran in the same district had, it appears, reason to be annoyed with the deceased, an influential man of the locality, who was often approached by the villagers to settle their disputes. Some two years before the incident resulting in the death of the said Khurshid Alam Shah one Punnun had complained to him that he suspected the respondents Bashir and Ghani to have stolen his wheat from his threshing‑floor on the previous night, as a tracker employed by the said Punnun had traced the foot‑prints of the thieves up to a well in Mohanpur Pakhiwaran. The deceased thereupon sent for the said two suspects and questioned them. Bashir and Ghani admitted that they had stolen the wheat along with five others and named the respondents Shafi, Hussain and Maqbul along with two others as their associates as also asked for forgiveness. The deceased told them that they would forgiven if they returned the wheat at Punnun's house at village Thapualla. All the seven person named accordingly returned 7 mds. of wheat to Punnun at his house two days later. Again, about a year back one Khurshid Muhammad of Mohanpur. Sayyadan complained to the deceased of the theft of the lath of his sugarcane press and suspected the respondents Ghani, Maqbul and Muhammad Hussain as the thieves. The deceased sent for them and rebuked them for having stolen the lath. The culprits offered to pay the price of the lath which was assessed at Rs. 60 and made payment 2/3 days after. Ten or fifteen days before the occurrence the respondent Ghani and his brother Ghafur were challaned by the Police under section 110 of the Criminal Procedure Code at the instance of the deceased. Ghani and Ghafur went to the deceased who told them that they had been challaned, as they had been committing thefts in the village. They protested and persisted in saying that everything was being done against them at the instance of the deceased. Lastly a day before the incident leading to the death of the deceased the respondents Shafi and Maqbul went to the dera of the deceased a little before sunset and demanded the turn of water from the outlet of Sadhoke Distributory which irrigated the lands of both the villages namely, Mohanpur Sayyadan and Mohanpur Pakhiwaran. The turn of water of the deceased had started on the 26th of July 1961, and was to last for 16 pehrs but as the canal minor had been closed down on the afternoon of the 27th of July 1961, and the water supply had not been resumed until the afternoon of the 28th of July 1961, the deceased informed the said respondents that his right to the water was to continue for another 8 pehrs. Shafi and Maqbul insisted that his turn had come to an end but the deceased did not agree. Due to the above incidents, the prosecution allege, that on the 29th of July 1961, at about mid‑day, when the deceased after smoking a huqa at the Nawan well in Mohanpur Sayyadan in the company of Murad Ali Shah, Muhammad Latif and Lal Din proceeded towards the west to see the work of his ploughmen on his lands, the said respondents fell upon him variously armed and mercilessly beat him causing him many grievous injuries, as a result of which the deceased died on his way to the Civil Hospital, Gujranwala. The attack was claimed to have been seen by Murad Ali Shah, Muhammad Latif and Lal Din who deposed as eye‑witnesses in this case. According to them a short while after Murad Ali Shah left for his fields they heard an alarm and proceeded towards the direction from which the alarm was coming. When they reached a watercourse about 1' killas from them and stood on the bank of the minor (canal) which was about 3 feet high, they saw from a distance of ‑1 killas that the deceased had been surrounded by the said five respondents, of whom Bashir was armed with a toka, Ghani and Shafi had a drant each, Maqbul had a sword and Muhammad Hussain a stick. According to them, Bashir inflicted two toka blows on the head of the deceased who raised his hands to ward off the blows and received blows on his hands and head. Then Ghani and Shall inflicted drant blows on the right leg of the deceased, who then fell down into the watercourse, But even after the deceased had fallen down Maqbul caused him three injuries with his sword on his left arm and Muhammad Hussain gave a stick blow on his forehead. Then all the respondents began to inflict blows with their respective weapons. After that they ran away towards Mohanpur Pakhiwaran carrying their respective weapons. The witnesses approached the place where Khurshid Alam Shah had fallen and found that he was still in his senses. At his request Murad Ali Shah brought a charpoy and carried him to the village. A Dispenser was brought from the Rest House in about an hour's time and he rendered first aid to the deceased. The Police also reached Mohanpur Sayyadan at about peshiwela and finding that Khurshid Alam Shah was still in his senses the Sub‑Inspector Mirza lal Khan recorded his statement, in the presence of one Said Ali Shah who also attested the said statement: This statement was then sent to the Police Station through a Constable for formal registration of a case and Khurshid Alam Shah was sent in a jeep to the hospital but on the way he succumbed to his injuries. In the meantime, the Sub‑Inspector went to the spot and collected blood‑stained earth therefrom. He then went to Mohanpur Pakhiwaran and arrested Shafi, Bashir and Ghani. They were wearing kachchas at that time which appeared to the Sub‑Inspector to be blood‑stained. He, accordingly, seized the kachchas also. The arrested persons also produced their respective weapons which were seized, as they also appeared to be blood‑stained. Muhammad Hussain and Maqbul were arrested on the 30th of July 1961, on being produced by one Asghar Ali Shah of Aminpur Sayyadan at the huts of the Changars. On questioning Muhammad Hussain produced a blood‑stained dang and Maqbul produced a blood‑stained sword which were also taken into possession. It may be mentioned here that from the scene of the incident the Police Officer had also seized a scarf, a pair of shoes and the handle of a toka which appeared to be blood‑stained. The shoes and the scarf were identified as those of the deceased Khurshid Alam. The origin of the blood on the kachchas only could be determined by the Serologist to be of human origin. The blood on the other items had disintegrated and so its origin could not be determined. The first information report was recorded on the basis of the statement of the deceased himself which was recorded at about 3 p.m. at Mohanpur Sayyadan. This statement was recorded after the Sub‑Inspector of Police had obtained a certificate from the Dispenser that the deceased was in his senses and capable of making a statement. In this statement the deceased gave the immediate cause of the quarrel and then described the assault on him in detail naming Bashir as the person who first struck him and then Abdul Ghani and Shafi as the persons who struck him with drants on his right leg and Maqbul as the person who struck him with the sword on his left elbow as soon as he fell and Muhammad Hussain as the person who struck him on the head with a dang. This report also mentioned that the deceased had received injuries on his hands when attempting to ward off the two blows struck by Bashir. The post‑mortem examination which was made on the 30th of July 1961, revealed as many as 39 injuries, of which 24 were incised wounds and the rest were abrasions on almost all parts of his body. The incised wounds were found on the parietal bone, the inferior margin of the orbit, back of upper half of pinna of left ear, the right shoulder, the external side of the right arm, the left shoulder, the chest, back of scapula, back of chest root of neck, right forearm, fingers of left hand and the right leg cutting the tibia and fibula into separate pieces. One of these incised wounds on the back of the right forearm was also longitudinal in shape. The incised injuries were, in the opinion of the doctor, caused by a sharp‑cutting weapon, and death, in his opinion, was due to the cutting of the tibia arteries. It is to be observed, however, that no injury was found which had affected the brain or damaged any vocal organ. The doctor also opined that the deceased could remain in his senses even after the infliction of the injuries that were found upon him. This statement of the doctor was not challenged in cross‑examination. Indeed, he was not cross‑examined at all. The respondents merely denied the allegations made against them and only one of them stated that he had been implicated at the instance of the Police and others could not give any reason at all as to why they should have been falsely implicated. But in cross‑examination of the investigating officer it appears that it was suggested to him that he had enmity with the deceased, as he used to file complaints against him through other persons and it was he who had caused the injuries to the deceased. In fact, it was suggested that in the statement originally made by the deceased he had charged the investigating officer himself for the injuries upon him but that F. I. R. had been destroyed and a false one prepared on a blank paper on which the signatures of the deceased had previously been obtained. This suggestion was, however, not made to any other witness, nor was any defence evidence called in support of it. The prosecution in support of its case relied on the oral testimony of the three eye‑witnesses of the occurrence, the dying declaration recorded by the Sub‑Inspector Mirza Lal Khan and the recoveries made by him. Out of the eye‑witnesses examined Murad Ali Shah was a cousin of the deceased and Muhammad Latif was employed as a Mistri at the factory of the deceased which contained a Rice Husking Machine, a Flour Mill and a Tube‑well. The third witness Lal Din was a Faqir by caste who belonged to a different village, namely, Mohanpur Dogran. The trial Court considered this evidence sufficiently reliable for convicting the said respondents. The exact relationship of Murad Ali Shah with the deceased appears to be that they were both descended from the same grandfather. Apart from this, there is nothing else in his cross‑examination to suggest that he had any particular reason to be inimical towards these respondents or to implicate them falsely. In fact, the only suggestion made to him was that he was inimical to the accused on account of his relationship with the deceased. Similarly so far as the witness Latif is concerned, the only suggestion to him was that he had deposed falsely on account of his being a servant of the family of the deceased. To Lal Din the suggestion was made that he was inimical, because, the respondent Muhammad Hussain had appeared as a prosecution witness in a case in which his son Sabir had been challaned with one Said in a case of assault, but he denied this and stated that Muhammad Hussain had actually appeared as a defence witness in that case. In these circumstances, the trial Court took the view that there was no particular reason for disbelieving the eye‑witnesses whose testimony was consistent and appeared to find support also from the medical evidence, the dying declaration and the recoveries made by the Police Officer. It, accordingly, convicted the said respondents agreeing with the unanimous opinion of the assessors who assisted him at the trial. The High Court took the view that the recoveries were of no assistance, for, the blood on most of the articles had disintegrated and the bloodstains on the kachchas, although found to be of human origin, could not be relied upon, as neither the situation nor the size of the stains was known. The dying declaration was also rejected, as it had not been attested by the Dispenser from the Rest House who was alleged to have been present there and to have certified that the deceased was in his senses. As for the oral evidence it held that Murad Ali Shah and Muhammad Latif being a cousin and an employee respectively of the deceased were interested witnesses whose testimony could not be accepted without independent corroboration. The corroboration that their evidence received from the testimony of Lal Din, who was accepted as a disinterested witness, was considered to be of no value, for, Lal Din himself was regarded as an unreliable witness on the ground that his statement recorded by the Police led "to the irresistible conclusion that he had gone to Nawan well situated in Mohanpur Dogran" and was, therefore, not an eye‑witness at all. The convictions were, accordingly, set aside and all the accused acquitted. A brother of the deceased filed a petition for special leave to appeal to this Court and leave was granted to him to consider whether the conclusions reached by the High Court were based upon correct principles. Learned counsel appearing in support of this appeal has contended that the reasons given by the High Court for rejecting the oral evidence were neither substantial nor cogent reasons. The exact statement upon which the High Court relied for disbelieving the witness Lal Din, it is contended, was never put to him and, therefore, it could not be utilised for contradicting him. We have examined the deposition of Lal Din and we find that what was put to him in his cross‑examination was as to whether he had stated before the Police that he went "to the Nawan well to the flour mill of Khurshid Shah". It was not put to him as to whether he had stated that he went to the Nawan well in his village. The conclusion of the High Court, therefore, that this witness must have gone to the Nawan well situated in Mohanpur Dogran, his own village, and not to the Nawan well in Mohanpur Sayyadan, the village of the deceased, is based upon the previous statement of the witness recorded by the Police with which the witness was never confronted. A previous statement of a witness cannot be utilised as substantive evidence unless this is contained in the evidence of the witness duly recorded in his presence at a previous proceeding, such as commitment proceedings, and then put in at the trial under section 288 of the Code of Criminal Procedure. A statement recorded by the Police under section 161 of the Code of Criminal Procedure cannot be utilised as substantive evidence. It can only be utilised under section 162 of the Code of Criminal Procedure A to contradict such witness in the manner provided by section 145 of the Evidence Act. When a witness is so contradicted by a statement recorded by the Police in the course of investigation the only effect that it can have is to reduce the evidentiary value of his testimony in Court and make the witness unreliable on the point on which he is so contradicted. The previous statement cannot be treated as substantive evidence as has been done in the present case by the High Court. Apart from this, we are unable to agree with the High Court that the discrepancy on which reliance was placed for totally discrediting the witness Lal Din was of such a serious nature as to render his oral testimony unworthy of credit. There is other evidence on the record to show that the mill of the deceased was situated only 2 squares away from the village Mohanpur Sayyadan on the north of it and Nawan well was only a killa away from the mill. There is no evidence to show whether there is any Nawan well at Mohanpur Dogran. In any event, if there was any such Nawan well in Mohanpur Dogran and the defence wished to suggest that the witness went to that well at Mohanpur Dogran, they should have put the Police statement correctly to the witness and not as it was put in the present case. So far as the witness is concerned he was certainly not in doubt, for, he had stated in his cross‑examination that he "stopped at the Nawan well which was in the way and where Murad Ali and Latif were smoking huqa" He was, therefore, clearly referring to the Nawan well at which Murad Ali and Latif were smoking huqa and not some other Nawan well. The possibility, therefore, of the Police Officer making a slight mistake in recording the statement of this witness cannot be excluded. Apart from this, there is nothing else to discredit this witness. The endeavour made by the defence to suggest that he was inimical hopelessly failed, for, it appeared that the respondent Muhammad Hussain had actually given evidence in favour of the witness's son and not against him as suggested. There is yet another reason why this witness's evidence should be accepted. He described the assault upon the deceased in some detail mentioning the parts played by each one of the accused persons. He could not have done this if he was not present at the scene of occurrence and saw the same himself, particularly since the injuries mentioned by him find support from the medical evidence. The medical evidence shows that the injuries were actually found at the places where this witness said blows were struck on the body of the deceased. We are unable, therefore, to agree with the High Court that this witness was unreliable or one who had not seen the incident at all. We are also unable to agree with the High Court that the mere relationship of Murad Ali Shah with the deceased was sufficient to reject his evidence nor can we agree that the High Court was right in treating Latif as an interested witness merely because he was employed as a Mistry at the Mill of the deceased. As has been pointed out by this Court in the case of Niaz v. The State (P L D 1962 S C 269) there is no inflexible rule that the statement of an interested witness can never be accepted without corroboration. In the present case we are not prepared to accept that Murad Ali ) Shah is an interested witness. We can find nothing from the cross‑examination of Murad Ali Shah to show that he had any previous enmity with any of the accused persons or that he had any particular reason to implicate any one of them falsely in this case. Indeed, his evidence also finds support from the medical evidence as to the number of blows struck and as to the location of those injuries. There is far less reason for disbelieving Latif merely on the ground that he was employed in the mill of the deceased. He was a natural witness whose presence in the vicinity of the mill at a time when the mill was closed was clearly probable. If corroboration was required of their evidence it was also furnished by the recovery of the blood‑stained kachchas from the persons of the accused. Learned counsel appearing for the respon dents has sought to contend that there was no reason why the accused should be wearing kachchas at the time they were arrested by the Police. It appears that they were wearing kachchas when they attacked the deceased. As three of them were arrested on the same day it is not unlikely that they were still wearing their kachchas. The fact that none of these eye‑witnesses went to the Police Station to lodge an F. I. R. is also explained by the fact that the S. H. O. himself came to the village at 3 p.m. and recorded the first information there. He was out on patrol duty after visiting Kot Khiwan Mal in connection with the investigation of another case and came to village Mohanpur Sayyadan at 3 p.m. There finding the deceased in an injured condition at his dera he recorded his statement. During this time the relations of the deceased had already got the Dispenser Wali Muhammad from the Canal Dispensary at Siranwalai and not expecting that the deceased would succumb to his injuries they were perhaps more anxious to see that his injuries were properly attended to first before going to the Police Station for lodging the first information report. The Police Station was some six miles away and if the S. H. O. had not arrived there, possibly the deceased may have been taken to the Police Station for giving his own version there, as he was still in his senses. We are also not impressed by the argument that Wali Muhammad the Dispenser never came to Mohanpur Sayyadan at all. His presence has been deposed to by the other witnesses for the prosecution. Their evidence that Wali Muhammad was brought and he attended to the injuries of the deceased was not challenged in cross e-xamination. So there is no reason why it should be accepted that Wali Muhammad never came to Mohanpur Sayyadan to attend to the injuries of the deceased. We have carefully examined the evidence with the assistance of the learned counsel appearing in this case and have come to the conclusion that the witnesses were truthful witnesses who gave consistent evidence as to the incident, which has been substantially corroborated by the medical evidence, the recoveries made and the dying declaration of the deceased. In the circumstances, we find no sufficient justification for holding that any reasonable doubt as to the guilt of the accused persons arose upon that evidence in the present case. The direct testimony of the eye witnesses, as we have already indicated, was of a straightforward character which had, in no manner, been shaken in cross -examination. The discrepancy, if any, in the evidence of Lal Din was of a minor character which was not, in our view, sufficient for rejecting his entire testimony. In spite, therefore, of our reluctance to interfere with acquittals we have come to the conclusion that this is a fit case in which the acquittal of the said respondents must be set aside. We, therefore, allow this appeal, set aside the acquittals of the first five respondents herein and convict them under sections 302/149 and 148 of the Pakistan Penal Code. But having regard to the fact that over three years have elapsed since they were committed to trial, we do not impose the sentence of death. They are, accordingly, sentenced to transportation for life each under section 302/149 and to two years' rigorous imprisonment each under section

148. Both the sentences will, however, run concurrently. K. B. A. Appeal accepted.