P L D 1960 (W (PLP)

The same night, the 29th August 1958, at 11‑15 p.m. Abdul Karim and his father Muhammad Saleh, were sleeping on cots. outside their houses, and similarly Alidino and Bachal were sleep ing outside their houses. Sheru And Ibrahim armed with hatchets came, and, according to the first information, attacked Abdul Karim. Thereupon Muhammad Saleh, Alidino and Bachal got up from their cots and challenged them and raised cries of murder. Other neighbours including P. W. Budho, Pattan, D. W. Muhammad Bux, Khudabux and Ansari came. Muhammad Saleh went to the Police Station about 3 furlongs away and made his report at 11‑50 p.m. The Sub‑Inspector, Mir Ghulam Kadir, who recorded the first information, reached the scene of offence at about a quarter past midnight and prepared a mashirnamha of the scene of offence and the inquest report. He sent the body to the Civil Hospital and recorded statements of Muhammad Bachal, Budho, Alidino and Kashmiran. The accused were not in their house. On the 31st Mst. Khurshed and Khudabux were examined. At 5 p.m. the Sub‑Inspector arrested the two accused from their house. A blood stained shirt and shalwar, was secured from the person of Ibrahim and he had abrasions on both his hands. Ibrahim took the. police and mashirs to a place about 100 paces from his house and produced the handle of a hatchet from a bush and later he produced a blood stained hatchet blade from some refuse near the Sukkur Biscuit Factory. The blade fitted the handle. On the 2nd September, Alidino, Muhammad Bachal, Budho and Khudabux were sent to have their statements recorded under section 164, Cr. P. C. The appellant and Ibrahim were challaned on the 7th September and were committed to the Sessions Court on 4‑12‑1959. The accused denied that they had demanded the hand of Mst. Razia in marriage or that there had been any quarrel with Abdul Karim. Sheru stated that the deceased had many enemies, and that the witnesses were implicating him on suspicion only. Ibrahim stated that the police never got any clothes from him, and that he did not produce anything before the police, and that the witnesses were giving evidence owing to pressure from the police and Agha Badruddin Advocate as Abdul Karim was the servant of that advocate. They led the evidence of three witnesses, Mst. Khurshed, Muhammad Bux and Muhammad Bachal. Khurshed is the sister and Muhammad Bux is the uncle of the two accused. Their evi dence is that Saleh told them that somebody had killed Abdul Karim and that he suspected Shero and Ibrahim. Witness Mst. Khurshed states that Saleh had refused the hand of Mst. Razia to Shero, and Muhammad Bux states that Mst. Razia had been married about a month before to a man at Shikarpur. Thus these two defence witnesses contradicted the accused on this point that there had been no trouble regarding the marriage of Mst. Razia. A third witness, Muhammad Bachal, who was a mashir to the securing of the blood‑stained clothes and the production of the hatchet blade and handle, states in effect that these articles were already lying at the Police Station before his arrival. Mr. Abdul Hai Qureshi criticised the learned Judge for not dealing with the defence witnesses in his judgment, but since in his arguments before us Mr. Abdul Hai Qureshi did not rely upon their evidence or even refer to it, we think that the omission of the learned Judge is pardonable. Furthermore the evidence of the defence witness Muhammad Buchal, the mashir, primarily con cerns Ibrahim only and Ibrahim was acquitted, while the evidence of Khurshed and Muhammad Bux is weakened by their relationship with the accused. The medical evidence shows that two hatchet blows had been inflicted on the deceased, one of which had almost severed the head from the trunk. There was semi‑digested food in the stomach, a fact which would support the alleged time of murder at 11‑15 p.m. On the night of the incident there was not only a full moon, but also a municipal electric light burning about 18 feet away from the cot where the dead body of Abdul Karim lay. There was, therefore, sufficient light for the identification of the assailants, especially, if as is alleged, they were well known to the, witnesses. The feature of this case is that the eye witnesses Muhammad Saleh, Alidino, Budho and Bachal have resiled or differed in the Sessions Court from their previous statements in order to favour the accused. The substance of the first information report is set out above in giving the prosecution case, and it will be observed that this first information was given at a very early stage. Muhammad Saleh before the Committal Court stated that he and witnesses Alidino, Bachal and Budho were sleeping in the open in front of their house. He also said that besides Budho his daughter and his wife Emna and Khudabux were sleeping in the open, which was a departure from the first information. He said that while Shero struck the deceased, Ibrahim stood there. In the Sessions Court he said that his womenfolk were sleeping in the courtyard of his house and when he woke up on a "thudding noise" he saw two persons and thought those two persons were Shero and Ibrahim, and thought it was Shero giving hatchet blows. He did not talk with them at the time of the incident and then said that the accused threatened him with death if he came near. When it was put to him that he had identified Ibrahim and Shero in the lower Court he said that he could not say whether his statement there was true or false as he was not in his proper senses. Similarly he said that he was not in his proper senses when he lodged the first information report. The faces of the accused were muffled and he identified them only on suspicion owing to their dispute over matrimonial affairs. Muhammad Bachal in his statement under section 164, Cr. P. C. stated that he was sleeping at his house when Saleh raised the alarm and he saw Shero and Ibrahim giving hatchet blows to Abdul Karim. He also deposed to matrimonial disputes and stated that Ibrahim had come to take away his sister Khurshed. In the Committal Court he said that he was sleeping in the courtyard of his house and was aroused by cries of Saleh. He saw Shero and Ibrahim giving hatchet blows to Abdul Karim. 1n the Sessions Court he said that he was sleeping in his courtyard and was aroused by cries of Muhammad Saleh and saw 8 or 10 persons standing around the cot of. deceased Abdul Karim. He could not say what weapons they were carrying and suspected that they were Ibrahim and Shero. Muhammad Saleh informed them that Shero and Ibrahim had killed Abdul Karim. His statements under section 164 and in the Committal Court were false and given at the instance of Muhammad Saleh. In cross‑examination he modified his statement by saying that Muhammad Saleh told him not that he had identified Shero and Ibrahim, but that he had suspected Shero and Ibrahim, since owing to muffling of their faces he could not clearly identify the accused. Alidino in the Committal Court was declared hostile since though he stated that he saw $hero giving hatchet blows he omitted to mention Ibrahim. His statement under section 164, he said had been given under pressure of the police. In the Sessions Court this witness said that he had been sleeping in the open when he was aroused by the cries of Saleh. He saw one person running away from the scene at a distance of 80 paces and thought that it was Shero from "his body and stature." Saleh told him that Shero had given hatchet blows to Abdul Karim but had not men tioned Ibrahim. He bad falsely stated in the lower Court that he saw Shero giving hatchet blows and did so at the instance of Muhammad Saleh, while his statement under section 164, was given under pressure of the police. Budho states in his statement under section 164, that he was sleeping in his house and on being aroused by the cries of Muhammad Saleh he went to the spot and was told by Saleh that Shero and Ibrahim were running away after killing Abdul Karim and he himself saw them far away but was able to identify them as Ibrahim and Shero as there was moonlight. In the Committal Court he gave the same story and maintained that he had identi fied both the accused. In the Sessions Court he said that he saw two persons running away about 70 paces away from the scene and suspected that one of them to be Shero but could not identify the other. He said that he gave the statement under section 164 at the instance of the police and his evidence at the instance of Muhammad Saleh. We then have the evidence of Kashmiran, who said that when she came out of her house on the cries of her father, she did not see any assailant, but her father, Alidino, Bachal and Budho were at the scene and all of them told her that Ibrahim and Shero had killed Abdul Karim. She gave a history of the matrimonial dispute including the fact that on the morning of the day of the incident Ibrahim had come and Abdul Karim had said that Ibrahim had threatened him because he refused to let Mst. Khurshed go with him. This witness, therefore, supports the 'prosecution story, and there is no evidence to show that she had departed from any previous statement. A point of law has been raised by Mr. Abdul Hai Qureshi that the statement in the Committal Court of Alidino, Budho and Bachal were brought on record under section 288, Cr. P. C. inviol ation of section 145, Evidence Act, in that the particular parts of those statements by which their statements in the Sessions Court were contradicted were not put to the witnesses. What happened was that their whole statements were read out to them and they stated that these statements were false and made at the instance of Muhammad Saleh. There is a divergence of legal opinion upon this topic. The most persuasive authority is that of the Supreme Court of India Tarasingh v. The State (52 Cr. L J 1491), where similarly witnesses replied regard ing their previous statements that they were made under coercion, but particular contradictions had not been put to the witnesses. With due respect to Bose, J. the reference made to Tilak's case (42 I A 135 at 146) is not happy ; for that case is clearly distinguishable. Here witnesses have replied that their previous statements were false ; their attention had been called to the whole of the statements including those parts which contradict their evidence in the Sessions Court, and the presumption is that they knew what was the difference between their evidence in the Committal Court and their evidence in the Sessions Court. In Bal Gangadhar's case nothing of this kind has occurred. There an inferential verdict of perjury has been reached by comparing pre vious statements with his evidence. Bal Gangadhar had been cross examined for 5 days but none of these points have been put to him. The essential difference is that while Tilak had at no time notice that his previous statements were to be used to contradict him, in the present case the witnesses and the accused had notice that the statements in the Committal Court would be used to contradict the witnesses. It is also clear that if a witness states that his previous statement is false he realises that there is a contradiction in the two statements, and the object of section 145 is to give the witness an opportunity of explaining the contradiction. , Sometime it can be explained that what appears to be a contradictory state ment is really not contradictory and that both the statements are true and can be reconciled : that explanation has been declined by the witnesses. The main purpose, it may be repeated, of section 145, is to give the witness an opportunity of explaining the contradiction, and normally that opportunity of explanation cannot adequately be given unless the particular contradiction is brought to the notice of the witness. Where, however, the witness states that his previous statement is false and explains why he came to make a false statement, he has given his explanation and it appears superfluous to put each contradiction to him. It is to be remembered in this case that the previous statement of the eye‑witness was read out to him and that he heard those parts which were contradictory, and we think that this is a sufficient compliance with the view that this attention must be drawn to parts of the statement which are contradictory. Certainly the witness realised that there were contradictions, or otherwise he would not have replied that his previous statement was false. In our opinion, therefore, there was a substantial compliance with the provisions of section

145. The Sind Chief Court in Rano v. Emperor (A I R 1944 Sind 178), after stating that the two witnesses had denied their previous statements on the ground ‑ that they were made under police coercion continued (and we respectfully concur) "Bearing in mind that every material fact deposed to by these witnesses in the Committing Magistrate's Court, was contradic ted in the Sessions Court and that each of the witnesses in a single sentence repudiated the truth of her entire deposition in the Committing Magistrate's Court, we think it is idle to contend that the learned Sessions Judge should have in the case of each witness obtained her contradiction of the deposition in the Committing Magistrate's Court sentence by sentence. In fact, therefore, the learned Sessions Judge in acting under section 288, Criminal P. C., in this case did substantially observe the pro visions of section 145, Evidence Act." As observed in Bhuboni Sahu's case (53 C W N 609 P C=P L D 1949 P C 90), a statement made under section 164, Cr. P. C. is not substantive evidence, but can be used to support or challenge evidence given in Court by the person who made the statement. Sir John Beamount observed that in considering whether evidence of the approver given before the Committing Magistrate's Court was to be preferred to that which he gave in the Sessions Court, the Court was entitled to have t regard to the fact that very soon after the occurrence he had made a statement in the same sense as the evidence which he gave before the Committing Magistrate. This principle extends also to a first information. In cases where the accused, the deceased, and the witnesses are related it is a common phenomenon that as time goes on the first feelings of anger against the perpetrator of the crime diminish and witnesses who originally gave statements implicating the accused withdraw from those statements. A further point is that normally information of a crime given at the very earliest stage at the perpetration of the crime is likely to be true since in order to make up a false story time is required. Futhermore the pre sence of the full moon and an electric street light, the familiarity of the accused, and the proximity of Muhammad Saleh to the cot of Abdul Karim in our opinion rule out any reasonable likelihood that his first information report was based upon suspicion and suspicion only. It is, therefore, strong corroboration of Muhammad Saleh's statement in the Committal Court that he saw both Ibrahim and Shero and contradictory of his evidence in the Sessions Court that he merely suspected these two accused. Similarly in the case of Muhammad Bachal, his statement in the Committal Court that he saw Shero and Ibrahim giving hatchet blows to Abdul Karim is corroborated by his statement under section 164, which contradicts his statement in the Sessions Court that he saw two persons 70 paces away whom he suspected to be the two accused, and was informed by Muhammad Saleh that he too had only suspected the accused. It is true that this witness differs from Muhammad Saleh in that he says that he saw both giving hatchet blows while Muhammad Saleh states that it was Sheru who struck while Ibrahim stood near, but this statement on the part of a witness who is suddenly aroused like Muhammad Bachal is understandable. Budhal in his section 164 statement identified Ibrahim and Shero as running away and states that Muhammad Saleh informed him that he had killed Abdul Karim, and this was his statement in the Committal Court. His own identification is weakened by the fact that he had been sleeping in his house, and when he came out and saw them they were far away, but his corroboration of Muhammad Saleh's accusation and his testimony that the assailants were two in number remain. In the case of Alidino his statement under section 164 though it apppears from his Committal Court statement to have been con tradictory to the omission of Ibrahim and was exhibited in the Committal Court, has not been brought on record in the Sessions Court. He implicated Shero as giving hatchet blows, but omitted Ibrahim. In the Sessions Court he stated that he merely suspected Sheru. The witness Kashmiran, however, has not been guilty of any contradictions upon the point of Muhammad Saleh's identification. She states that when she came out from the house, she was told by the witnesses that Ibrahim and Shero had killed Abdul Karim. We disbelieve the defence witnesses who depose that they were informed by Muhammad Saleh that some unknown person had killed Abdul Karim, for Mst. Khurshed is the sister and Muhammad Bux is the uncle of the accused. Whether it is true or not that the Unars had threatened to kill Abdul Karim matters little. Had they in fact killed Abdul Karim, Muhammad Saleh would not have identified his nephews. It has been argued that since the Sessions Judge acquitted Ibrahim and since the evidence against Ibrahim was (apart from Alidino and in the Sessions Court Budhal) the same as against Sheru, therefore, Sheru was equally entitled to acquittal. The learned Judge, however, said that he did not disbelieve the com plainant or the eye witnesses regarding Ibrahim, but followed the rule of prudence considering the omission of Ibrahim by Alidino and Budhal. If, however, he believed the complainant and the eye witnesses it was his duty to have convicted Ibrahim, but he probably meant by not disbelieving that he was in doubt as to their evidence, and Alidino and Budhal tipped the scale. His statement that Ibrahim had no motive disregards the fact that brothers are likely to join together in perpetration of such a crime. The statement that the prosecution had not proved that Ibrahim had approached Abdul Karim in the morning is not borne out since in the Committal Court, Muhammad Saleh had stated that Abdul Karim told him that Ibrahim had come. This was also mentioned in the first information report, and it was only in the Sessions Court that Muhammad Saleh stated that it was one of the accused who had come, but did not specify which. Kashmiran supports the prosecution, as also Bachal in the Committal Court, on this point. The learned Judge explained the securing of the blood‑stained shirt and shalwar on the ground that his clothes might have been stained by his own blood as he had abrasions on his hands at the time of his arrest, and secondly since Saleh stated in the Sessions Court that the person suspected as Ibrahim was 5 or 6 paces away' from the cot, therefore, the blood upon his clothes could not have been of the deceased. But in the Committal Court Saleh said that, Ibrahim was standing near the cot on which his two small sons were sleeping and that the distance is unknown, while in his first information report he has said that both the accused gave blows. It is, therefore, by no means certain assuming the truth of the statement in the Committal Court that Ibrahim was so distant that his clothes could not have been stained with the blood of the deceased. ‑ We may, however, accept the explanation that the blood came upon him from abrasions on his hands since we do not know the extent of the blood and we disregard this point. As regards the production of the hatchet, the learned Judge states that since according to Muhammad Saleh he had not used this at all, he deserves the benefit of the doubt. The learned Judge has not stated that he disbelieved the evidence regarding this pro duction, and we think that the truth of the matter may be that both the accused used their hatchets as stated in the evidence of Muhammad Bachal before the Committal Court. But even if Ibrahim did not use his hatchet he may well have taken his brother's hatchet in order to conceal it. We have had to consider his case in order to meet the argument that if the evidence against Ibrahim was not sufficient to justify a conviction it was also equally not sufficient to justify the conviction of Shero. In our opinion nothing in the evidence concerning Ibrahim has thrown doubt upon the conviction of the appellant. To sum up, therefore, we consider it proved beyond doubt that Abdul Karim, Muhammad Saleh and the neighbours Bachal and Alidino were sleeping in the open under a full moon, and that an electric light was burning nearby. We have no doubt that the attack would awaken Muhammad Saleh and that his cries Would awaken his neighbours. We have no doubt that the assailants were two in number, and that Muhammad Saleh, Bachal and Alidino were in a position to identify the assailants if they were previously well known. The accused were well known. Their positive identification at the earliest stages was true, and the later substitution of suspicion for certainty is due to relationship. Basing our judgment, therefore, upon the evidence admitted under section 288, Cr. P. C., we dismiss the appeal, maintain the conviction under section 302, P. P. C. of the appellant Sheru son of Muhammad Sidik, and confirm the sentence of death. A. H. Appeal dismissed.