1984 P Cr (PLP)

Gulbaz Khan, J.--Allah Yar appellant and his three sons Amir, Muhammad Nawaz and Lalu faced the trial of murder of Qadir Bakhsh, in the Court of learned Sessions Judge, Jhang, who vide judgment, dated 25th November, 1981 acquitted Amir, Nawaz and Lalu but convicted Allah Yar appellant under section 302, P.P.C. and sentenced him to death and a fine of Rupees four thousand or in default in payment of fine to undergo R.I. for six months, if his death sentence was not confirmed. Half of the fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation. The appeal filed by Allah Yar, the murder reference and the revision petition filed by Nazar Muhammad complainant against the acquittal of Amir, Muhammad Nawaz and Lalu, which was admitted by this Court vide order, dated 2nd October, 1983 are being disposed of together.

2. On 21st June, 1972, Shera, Mammun, Masta, Ghulam Shabbir, Iqbal sons of Shera, Jinda, Nazra complainant sons of Dara and Khan made murderous assault on Kabeer, son of Rahana. A case under sections 148, 307, 325, 430/149, P.P.C. was registered at Police Station Garh Maharaja, on 22nd June, 1972 on the statement of Muhammad Bakhsh. On the death of Kabeer, offence under section 302, P.P.C. was added. Kabeer deceased was a cousin of the appellant who bore grudge on that account and took revenge by committing the murder of Qadir Bakhsh, a real brother of Nazar Muhammad and Jinda,who were accused in the murder case of Kabeer.

3. On 12th December, 1980, Nazar Muhammad complainant (P.W.6) was ploughing his fields situated in the area of village Duri Gondal, at a distance of twelve miles from Police Station Garh Maharaja. His brother Qadir Bakhsh deceased was proceeding towards village Dauloana. When the deceased was at a distance bf fifteen/sixteen Karams from Nazar Muhammad complainant, the appellant and his three sons threw challenge at the deceased that they would avenge the murder of Kabeer by killing him. Allah Yar appellant and Amir acquitted accused were armed with Kassis while Nawaz and Lalu acquitted accused had hatchets. The appellant opened the attack and inflicted Kassi blow to the deceased on the head, whereafter Amir, Nawaz and Lalu caused injuries to the deceased on the head with their respective weapons. The deceased fell down. The appellant and the acquitted accused dealt more blows to the deceased from the wrong side of their weapons. The occurrence was witnessed by Nazar Muhammad complainant, Khuda Bakhsh (P.W.9), Iqbal Hussain and Sher Muhammad (both not produced). They pleaded for mercy but the appellant and the co-accused shouted that whatsoever came near would be killed. The deceased died on account of injuries.

4. Leaving the deceased under the care of the abovementioned witnesses, Nazar Muhammad complainant left for the Police Station. He met Nasrullah Khan A.S. I. (P.W.12) at Adda Sharifabad and made statement Exh. P.D. This statement was completed at 9-00 a.m. on 12th December, 1980. Formal F.I.R. Exh.P.D./1 was recorded the same day at 9-45 a.m. The A.S.I. collected blood-stained earth from the spot and sealed it into a parcel. He prepared injury statement and inquest report of the deceased and sent the dead body for post-mortem examination. He took into possession the blood-stained clothes of the deceased. The appellant was arrested by the A.S.I., on 13th December, 1980. The appellant produced blood-stained Kassi P.4 from his residential Kotha, on 17th December, 1980, which was sealed into a parcel vide memo. Exh.P.C. The memo was attested by Muhammad Ramzan (P.W.5.) and Allah Bakhsh (not produced). Muhammad Khan S.H.O. partly investigated the case. He arrested Amir, Muhammad Nawaz and Lalu acquitted accused on 27th December, 1982. Investigation was completed and challan submitted against the appellant and acquitted accused.

5. Dr. Syed Muhammad Firdous performed the post-mortem examination on the dead body of Qadir Bakhsh, on 12th December 1980 at 3.30 p.m. and found the following injuries on his persons: - (1) A contusion 2 c.m x 2 c.m. on the left side of the upper chest inner side 3 c.m. lateral to the lower part of the neck. (2) An incised wound 3 c.m. x 1 c.m. x bone deep on the right side of the skull, 4 c.m. above the right ear. (3) A lacerated wound 2; c.m. x 1 c.m. x bone deep 4 c.m. above and behind injury No.2. (4) An incised wound 5 c.m. x 1 c.m. x bone deep, 2 c.m. above injury No.3 and 31 c.m. above and medial to injury No.2. (5) An incised wound 3 c.m. x c.m. x bone deep, 2 c.m. behind injury No.3. (6) A lacerated wound 5 c.m. x 1 c.m. x bone deep on the back of the right side of the lower part of the skull, 6 c.m. lower to injury No.3. (7) A swelling 3 c.m. on the back of the centre of the skull. (8) A swelling 5 c.m. x 5 c.m. on the left side of the skull 4 c.m. above the left ear. Skull was found fractured under injuries Nos. 3, 6 and

8. All the injuries were ante-mortem. Injuries Nos. 1, 3. 6, 7 and 8 had been caused with blunt weapon while the remaining with sharp-edged weapon. Injuries Nos. 3, 6 and 8 were grievous in nature. The death was due to shock and it occurred on account of injuries Nos. 2 -to 8 and particularly due to injuries Nos. 3. 6 and 8 which caused haemorrhage (both internal and external) and shock and were sufficient to cause death in the ordinary course of nature. The time between injuries and death was within half an hour to one hour and between death and post-mortem within seven to eight hours. It was further opined by the doctor that injuries Nos. 3, 6 and 8 could cause death individually.

6. Nazar Muhammad complainant (P.W.6.) and Khuda Bakhsh (P.W.9) were examined as eye-witnesses. They deposed before the trial Court that Allah Yar appellant, Amir acquitted accused armed with Kassis while Muhammad Nawaz and Lalu acquitted accused armed with hatchets, after throwing challenge to the deceased, caused injuries to him with their respective weapons by using the same from the sharp as well as blunt side. They further stated that the challenge was to the effect that they had come to avenge the murder of Kabeer. They further stated that the occurrence had also been witnessed by Iqbal Hussain and Sher Muhammad (both not produced). The motive was also brought on the record in the examination-in-chief and cross-examination of Nazar Muhammad complainant as well as in the examination-in-chief of Khuda Bakhsh P.W. Muhammad Ramzan (P.W.5) and Nasrullah A.S.I. deposed about the recovery of blood-stained Kassi at the instance of Allah Yar appellant. Muhammad Khan S.H.O. and Nasrullah Khan A.S.I. support the investi gation.

7. The appellant was examined under section 342, Cr.P.C. As is the tendency amongst the accused, Allah Yar appellant gave his age as eighty years. The Court has to make its observation by bringing it on record that he looked to be about sixty-five years of age. In his statement before the trial Court the appellant admitted that eight years prior to the occurrence, his cousin Kabeer was murdered for which Nazar Muhammad complainant and his other relatives were challaned and convicted. According to the appellant he bore no grudge on that account. He denied to have committed the murder of Qadir Bakhsh as stated by the witnesses, he gave the following answer when questioned as to why the case against him: - "It is a false case. In fact on the day of occurrence I was irrigating my land in Killa No.17 of Square No.36 when it was my turn of water and was sitting on the road side with the Kassi by the side of the said field. The deceased happened to pass that way on a bicycle and on seeing me he got down from it and asked me tauntingly about my welfare. He also said that Kabeer, my deceased cousin, had also sent me greetings. On this grave and sudden provocation I lost control over myself and gave blows to the deceased with Kassi from its wrong side. I was all alone at the time of occurrence and my co-accused who are my sons have been implicated falsely in this case due to enmity." He was asked if on 17th December, 1980, while in police custody, he led to the recovery of blood-stained Kassi P.4 from his residential house in Chah Akhanwala, Mauza Duri Gondal and did it belong to him. He answered this question-by stating that in fact, he informed Nasrullah Khan A. S. I. on 13th December,1980, when he appeared before him that a Kassi was lying in his Kotha and he fetched the same from his house the same- day. He explained in his statement that he never intended: to murder the deceased and had killed him under grave and sudden provocation. He produced Aks Shajra of the place of occurrence, Exh.D.C. He did not lead any evidence in defence. The case of the acquitted accused was of total denial. They attributed the case to enmity and relationship with the deceased. They denied their presence at the time of occurrence. Muhammad Nawaz added that he was present at Chah Ghaziwala and had produced defence to that effect before the Investigating Officer, Lalu appellant explained that he was present at Chah Dold wala and had led evidence before the police.

8. The learned counsel for the appellant contended that it was rightly pointed out by the trial Judge that the witnesses were closely related to the deceased and were inimical towards the accused and their statements required independent corroboration; that Amir son of the appellant was a witness in the earlier murder case and that was the reason for the false implication of the appellant and his three sons including Amir, that none of the eye-witnesses was present at the spot; that the injuries had been caused to the deceased by one and the same weapon; that the prosecution had made exaggeration with regard to the number of the accused and involved the entire family of the appellant leaving out his one minor son; that prosecution failed to prove the recovery of blood-stained Kassi at the instance of Allah Yar appellant through reliable and disinterested evidence, that Allah Yar appellant had committed the murder of Oadir Bakhsh under grave and sudden provocation and at the best the case was covered under section 304, P.P.C.

9. A serious objection had been taken by the learned counsel for the State that the trial Court had used the case diary and admitted inadmissible evidence in violation of the provisions of sections 161, 162 and 172, Cr. P.C. The learned counsel for the State as well as the complainant submitted that Amir, Muhammad Nawaz and Lalu had been acquitted on account of the improper use of the case diary and it resulted in miscarriage of justice. Reliance was placed on cases titled Muhammad and others v. Emperor A I R 1926 Lah. 54, Fazal and another v. Emperor A I R 1926 Lah. 363, Dini v. Emperor A I R 1926 Lah. 1158 and Subhanuddin v. The State 1976 S C 61 R 506.

10. It was submitted by the learned counsel for the appellant that in case of the acceptance of the revision petition, the retrial had to be ordered against all the accused. Reliance was placed on case titled Moonda and others v. The State P L C 1958 S C Pak. 275.

11. We were taken through the entire record. It stood established from the record that the eye-witnesses were closely related to the deceased and they were on inimical terms with the appellant and his sons, the acquitted accused. There is no dearth of the authorities on the proposition that the statements of interested witnesses require corroboration. In this case we have to see if there was sufficient independent corroboration of the statement of the two eye-witnesses to satisfy the judicial mind about the guilt of the appellant. The spot of occurrence and time of occurrence is admitted. The presence of the appellant is also admitted. Nazar Muhammad complainant stated that he, his brother and deceased lived at Chah Jharinwala in the area of village Duri Gondal. According to his version, he was ploughing in the fields whereas the deceased was going to village Dauloana. The deceased was owner of. Killa No.s of Square No.36. He was in possession of the said land in site of the fact that in consolidation proceedings it had fallen to the share of Ahmad Khan etc. Allah Ditta Patwari (P.W.1) had made statement to this effect. It was also clear from the copy of Khasra Girdawari Exh. P.N., that Oadir Bakhsh deceased and Khuda Bakhsh were in possession of the said land. This land was at a distance of about two Killas from the-place of murder. The occurrence had taken place at a time when the farmers plough their fields. Khuda Bakhsh P.W. stated in Court that he was removing the cotton sticks at a distance of about one Killa from the place of occurrence when he heard the alarm. His name also figured in the copy of Khasra Girdawari. He was removing the cotton sticks while Nazar Muhammad complainant was ploughing the land. Their presence at the spot appeared quite natural we find much substance in the contention of the learned counsel for the State as well as for the complainant that if the complainant wanted to involve some Innocent persons in the case, he could have done so easily in view of the large number of injuries on the person of the deceased. We have already noticed that the deceased had eight injuries, including three Incised wounds. The case about the murder of Kabeer was got registered by Muhammad Bakhsh son of Allah Yar. Besides Amir acquitted accused. Ghulam son of Rahana was also mentioned as an eye-witness. The complainant would not have left out Muhammad Bakhsh and Ghulam eye-witnesses of the previous murder case and would have named them as accused in this case if he wanted to involve any person falsely in this case. This aspect cannot be ignored while assessing the evidentiary value of the statements of Nazar Muhammad complainant and Khuda Bakhsh P.W. It was also brought out in cross-examination that Allah Yar son of Hidayat had abducted Mst. Mumtaz Begum (sister's daughter of the complainant). According to the defence suggestion, the case of abduction was pending in Court at the time of the present occurrence. The comp lainant would have thought of naming Allah Yar son of Hidayat as one of the accused if he wanted to involve any person falsely. We find that he had not done so. We have also noticed that the fatal injuries to the deceased had not been attributed specifically to the accused by the complainant in the F.I.R. as well as in his statement made before the trial Court. Similar was the position of Khuda Bakhsh P.W. No serious discrepancy or contradition was pointed out by the learned counsel for the appellant. In fact, there was none. Leaving aside the fact of their interestedness, we find that the two eye-witnesses made consistant statements. There was no evidence to suggest that they made exaggeration or improvement or deviation from their earlier statements. We felt no hesitation in placing reliance on their testimony. Muhammad Ramzan (P.W.5) a close relative of the deceased and Nasrullah Khan A.S.I. stated that on 17th December, 1980 the appellant had produced blood-stained Kassi P.5 from his house which was sealed into a parcel. According to the reports of Chemical Examiner and Serologist, the Kassi was found to be stained with human blood. About the recovery of blood-stained Kassi, the appellant stated that he informed the A.S.I. on 13th December, 1980 that the Kassi was lying in his Kotha and the A.S.I., fetched the same from his house. The recovery of Kassi was not denied by the appellant. There was difference about the mode and date of recovery. In any case it stood proved that the blood-stained Kassi belonged to the appellant and it was recovered at his instance. It was a sufficient corroboration of the statements of the two eye-witnesses referred to above. The motive was also admitted by the appellant. On account of the murder of Kabeer, the appellant had the motive. Although it was not mentioned in the F. I. R, the complainant explained during cross-examination that Qadir Bakhsh deceased had also participated in the occurrence relating to the murder of Kabeer but he was not named in the earlier F .I. R. He further stated that the complainant party of the earlier murder case had given out publicly that in fact, Qadir Bakhsh murdered Kabeer. For this reason, Qadir Bakhsh was murdered.

12. The trial Court had allowed inadmissible evidence to be brought on the record during the cross-examination of Nasrullah Khan A.S.I. The A.S.I. gave the following answer during cross-examination: -- "The accused Allah Yar had appeared before me on 13th December, 1980 while I was present outside the S.P. Office Jhang at about 11-00 a.m. I interrogated the aforesaid accused. He had taken up the plea that on the day of occurrence he was irrigating his land and was sitting by the side of Jhang Muzaffar-Garh metalled road, and that he was holding a Kassi in his hand. He also took up the plea that Qadir Bakhsh deceased arrived there riding a bicycle. and got down on seeing him and remarked if it was all OK Mahr Sahib. And at that time the accused remembered his paternal-cousin Kabeer deceased who had been murdered about 7 or 8 years back by Qadir Bakhsh and his two brothers and two others but Qadir Bakhsh was not challaned in the case. The accused Allah Yar also took up the plea that on the remark made by Qadir Bakhsh he got provoked (Ghairat) on the ground that they were the murderers of his cousin Kabeer and as to why he had been asking for his welfare and that under such provocation he had given repeated Kassi blows to the said Qadir Bakhsh. The accused Allah Yar also took up the plea that he had killed Qadir Bakhsh all alone and that his co-accused Amir, Muhammad Nawaz and Lalu were innocent in this case. The aforesaid accused had also pleaded that if Qadir Bakhsh had not confronted him and had not asked for his welfare then he would have not murdered him. On that occasion the accused Allah Yar made the disclosure that the Kassi with which Qadir Bakhsh was murdered was lying in his Kotha and he would lead to its recovery. The accused Allah Yar also pleaded that he did not appear before the police at the spot as he apprehended danger to his life from the relatives of the deceased. Allah Yar accused had also pleaded that he was a poor man whereas Qadir Bakhsh deceased was comparatively bigger landlord than him." The statement of the appellant recorded under section 161, Cr.P.C. could not be brought on the record of this case. After registration of the case, the A.S.I. had started investigation. Chapter V of the Criminal Procedure Code deals with Special Information to The Police and Their Powers for Investigation. Section 161, Cr.P.C. reads as under: -- (1) Any Police Officer making an investigation under this Chapter or any Police Officer not below such rank as the Provincial Government may by general or special order prescribe in this behalf, acting on the requisition of such Officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The Police Officer may reduce into writing any statement made to him in the course of an examination under this section, and if he does so he shall make a separate record of the statement, of each such person whose statements he records." The statement of an accused person by the Investigating Officer is recorded under section 161, Cr.P.C. Section 162, Cr.P.C. deals the subject as to how the statement of the persons recorded under section 161, Cr.P.C. are made use of. For facility purpose we like to reproduce section 162, Cr.P.C: -- (1) No statement made by any person to a Police Officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it: nor shall any such statement or any record thereof, whether in a Police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination: Provided further, that, if the Court is of opinion that any part of any such statement is not relevant to be subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interest of justice and is in expedient in the public interests, it shall record such opinion (but not the reasons therefore) and shall exclude such part from the copy of the statement furnished to the accused. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1) of the Evidence Act, 1872 or to affect the provisions of section 27 of that Act. If once an investigation had actually started all statements made to the police would naturally fall under the purview of section 162, Cr.P.C. and would not be admissible in evidence except to the extent mentioned in this section. In allowing above-mentioned statement of Allah Yar appellant before the Investigating Officer and treating it as evidence in this case, the learned Sessions Judge violated the provisions of section 162, Cr.P.C. We shall have to keep this portion of the evidence, out of consideration. On the basis of this improper admission of evidence by the trial Court, which had no bearing on the result of the case, as Allan Yar appellant had taken up the same plea in his statement before the trial Court and no prejudice having been caused to the appellant on account of this improper evidence, we cannot hold that the error had vitiated the whole trial. Reliance is placed on cases titled Dal Singh v. King-Emperor A I R 1917 P C 876 I L R? Cal. Series 1917 and Sanmon Tiwari v. Emperor, 38 Cr. L J

102. But so far as the statement of appellant in Court was concerned, that could legally be considered by the trial Court. The plea of the appellant was that he was irrigating his land in Killa No. 17 in Square No. 36 and it was his turn of water. No evidence was led to show that at the time of occurrence it was the turn of the appellant. There was no occasion for the appellant to sit on the road side with Kassi. He was supposed to be present -in his fields and not on the road side. The murder of Kabeer took place more than eight years prior to the present occurrence. We cannot imagine that for eight years the appellant and the deceased had not crossed each other. There was no special reason as to why the deceased should have used the taunting remarks on the appellant. It was the case of the appellant that deceased was riding on a bicycle and he got down from it and addressed him tauntingly. The deceased was comparatively younger in age and could not have become the victim of assault so easily. The appellant was not carrying any firearm. In case there had been one against one, the deceased should have also caused injuries to the appellant. The appellant did not receive even a single scratch. The appellant stated that he used the Kassi from .its wrong side. This version was belied by the medical evidence as the deceased had three incised wounds. We have already held in the' earlier part of the judgment that the two eye-witnesses were present at the time of occurrence. The plea taken up by Allah Yar appellant was false and we reject it. The statements of Nazar Muhammad and Khuda Bakhsh were corroborated by the recovery of blood-stained Kassi at the instance of the appellant. Their statements were further corroborated by the medical evidence. It was a sufficient corroboration. The appeal filet: by Allah Yar is without merit and is dismissed. His death sentence is confirmed.

13. Now coming to the case of Amir, Muhammad Nawaz and Lalu, it is pointed out that the trial Judge acquitted them for the reason that the statement of the two eye-witnesses were not corroborated by any other independent evidence. It appears from the record that the learned Sessions Judge was also influenced by the statement of Muhammad Khan S.H.O. (P.W.11) wherein he stated that the accused Muhammad Nawaz and Lalu had taken up the plea of alibi before him and had examined defence evidence in support of their plea of alibi; that thirty-six persons had appeared before him on 30th January, 1980 In support of the plea of alibi; that likewise, on 10th January, 1981, sixteen more persons appeared b-e ore him in support of the plea of alibi taken up by the accused; that he had recorded his conclusion about the plea of alibi in the case diary dated 30th December, 1980 and 11th January, 1981;- at he had prepared the challan Zimni on 24th January, 1981; that he had incorporated the result of his investigation in the said Zimni; that the aforesaid Zimni was objected to at the time of checking of the challan whereupon the final report under section 173, Cr.P.C. was drawn up with a little modification.

14. The learned Sessions Judge perused the case diary referred to above and made observation in paragraph 20 of the judgment that Investi gating Officer had concluded that Muhammad Nawaz and Lalu accused were found innocent on the basis of the investigation and it was so mentioned in the diary, dated 10th January, 1981 and in the final diary, dated 24th January, 1981. The learned Sessions Judge treated the case diary as evidence in the case and thereby committed an illegality. Day to day proceedings in the investigation and entered in a diary. These special diaries are commonly called case diaries. No doubt, a criminal Court, under section 172(2), Cr.P.C. is competent to send for police diaries of a case under inquiry or trial and may use such diaries, not as evidence in the case, but in aid of such inquiry or trial. Neither the accused nor his agent is entitled to call for such diaries or see them merely because they are referred to by the Court. It is clear from section 172(2), Cr.P.C. that Criminal Court cannot use the diaries as evidence in the case. The object of subsection (1) of section 171, Cr.P.C. is to enable the Court to direct the Police Officer, who is giving his evidence, to refresh his memory from the notes made by him in the course of his investigation of the case or to question him as to contradiction which may appear between the statements so recorded and the evidence he is giving in Court. The Court may also use the diaries in the course of the trial for the purpose of clearing up obscurities in the evidence or bringing out relevant facts which the Court thinks are material in the interests of, a fair trial. It has been held in case titled Habeed Muhammad v. State A I R 1954 S C 151 that a Judge is in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries. It has been observed in the said judgment that the only proper use of a diary which a Court can make is the one allowed by section 172, Cr.P.C. It has been made abundantly clear in the section that the police diaries cannot be treated as evidence in the case and the Court should not take the statement contained in the diaries as the material which would help it to come to a decision of the case. Where Court peruses the diary it is impossible to avoid the conclusion that it has allowed its mind to be influenced by what it found in the diary and what was not before it in evidence at the trial. Entries in the diary prepared under section 172, Cr.P.C. are only notes of secondary evidence of witnesses, who cannot be examined in the first instance, and whose evidence, if necessary, should be taken in open Court in the presence of the accused. These diaries cannot be used either as substantive or corroborative evidence. Nor can a Court look into them and take the facts and statements written therein as material which would help it come to a finding on the evidence in the case. It has been held in case titled Muhammad and others v. Emperor A I R 1926 Lah. 54 that object of section 172(2) Cr.P.C. is to enable the Court to direct Police Officer giving evidence, to refresh his memory or to question him as to contra dictions between his evidence and the recorded statement or for clearing up obscurities in evidence or to bring out relevant facts. It was held by his Lordship in case titled Fazal and another v. Emperor A I R 1926 Lah. 363 that to believe the evidence of a witness because a perusal of the police diaries satisfied the Court that he was examined at the earliest opportunity and had made the same statement before the police is an improper use of the police diaries. It was observed by their Lordships in case titled Dini v. Emperor A I R 1926 Lah. 485 that to disbelieve the story of the defence only because it was nowhere mentioned in the Zimnis, amounted to making use of the Zimnis in such a way as to strengthen the case for the prosecution and to show that the rival story told by the defence was untrue was a course forbidden by section 172, Cr.P.C. In case titled Subhanuddin v. State 1976 S C M R 506 it was submitted before their Lordships that the learned Judges of the High Court were clearly influenced by the police diaries having specifically perused the police statements of Wahab and Shah Hassan. who had been given up as won over and this position stood clearly established from paragraph No. 6 of High Court's judgment, which contained a reference to the perusal of police diaries. Their Lordships of the Supreme Court observed in the said judgment that the police diaries being evidently inadmissible in evidence were merely perused by the learned Judges for their moral satisfaction and a reference of police diary in the judgment was rather uncalled for giving rise to an erroneous impression. A Court is competent to send for the police diary of a case under inquiry or trial in such a Court and may use such diary to aid it in such an inquiry or trial. But the diary cannot be used as evidence in the case as had been done by the learned Sessions Judge in this case. If the case of acquittal of Muhammad Nawaz and Lalu had been based solely on the perusal of these diaries, we would have accepted this revision petition and ordered their retrial. In the case of Achhaibat Singh and others v. Emperor 22 Cr. P L J 374 the police diaries had been used for purpose of corroborating the statement of Police Officer and the trial Court had placed reliance on those police diaries. The High Court came to the finding that there was ample legal evidence to corroborate the prosecution case and to sustain the conviction. The High Court condoned the irregularity and refused to interfere. In the instant case the acquittal of these two accused and Amir co-accused had been also based on the ground that no weapon of offence had been recovered from them and the prosecution was unable to give any reason for the non-recovery of the weapon of offence from them. The trial Judge was looking for some sort of corroboration. Finding none against the acquitted accused, he recorded the judgment of acquittal. The trial Court perused the case diary for satisfying itself about the plea of alibi of Muhammad Nawaz and Lalu, but treated the same as evidence, which It could not.

15. Since we are also of the view that the statements of Nazar Muhammad complainant and Khuda Bakhsh required some other independent corrobora tion and no such evidence was brought on the record against them, we agree with the findings of the learned Sessions Judge that case against them did not stand proved. For reasons given above, we dismiss the revision petition also. M. Y. H Petition dismissed