P L D 1956 (W (PLP)

YAQUB ALI, J.‑Imtiaz Rabbani, son of Mian Hafiz Ullah, about 17 and 18 years of age, has been convicted by the learned Sessions Judge of Layallpur of an offence under section 302, P. P. C. and sentenced to death for causing the murder of one Mst. Sabra, widow of Khan Aman Ullah Khan. The convict has appealed and the sentence of death has been referred to us for confirmation, under section 374, Criminal P. C. The case for the prosecution is that at the relevant time the deceased along with her two unmarried daughters, her widowed sister Mst. Fayyazi Begum and a nephew Muhammad Yusuf (P. W. 4) resided in a house situated in Muhalla Abdullahpur, a suburb of Layallpur, as a tenant under an aunt of the appellant. The appellant took fancy for one of the daughters named Mst. Talat Begum and desperately wanted to marry her. A proposal for the match was refused by Khan Aman Ullah Khan about a year before the occurrence in this case. A few months later. Aman Ullah Khan died and the proposal was again pressed by the appellant and his father with the deceased but she declined it on the ground that the appellant had given up studies and was living the life of a vagabond. This was resented both by the appellant and his father. On or about the 7th of October 1954 the appellant, armed with a gun, went to the house of the deceased at about midnight and threatened to kill her entire family in case she refused the hand of Mst. Talat to him. On the nest day Colonel lkramullah, Commander, National Guards, a step on of Mst. Fayyazi Begum, lodged a report with the police complaining about the behavior of the appellant and his father. From the record of this case it appears that as a result of it a case under section 448, P. P. C. was registered against the appellant and his father but it is not known as to what happened in that case eventually. Mst. Talat was given in marriage by the deceased to one Major Ashraf in April 1955. Fearing that the appellant may create some trouble on that occasion Col. Ikramullah lodged a report with the police under sections 1.07/151, Criminal P. C. but no action was taken on it because the appellant had already been detained at the instance of his own father under security proceedings. It was against this background that the appellant at about 2 p. m. on the 6th July 1955, armed with a gun, entered the house of the deceased who happened to be present in the courtyard of her house at that time. Seeing this, Mst. Hamida (P. W. 9), a maid‑servant of the deceased, ran up to Muhammad Yusuf who was asleep in a room in the house and informed him that Imtiaz Rabbani had entered the house armed with gun and was having an alter cation with the deceased. Muhammad Yusuf came into the verandah but as the appellant pointed his gun towards him he took shelter behind a pillar. Almost simultaneously the appellant fired a shot which hit the deceased in the chest and caused her death within about five minutes. The appellant then ran out of the house carrying the gun with him. Qudrat Ullah (P. W. 6), a male‑servant of the deceased, was also present in the house at that time and saw the whole occurrence. Hafiz Piare (P. W. 10) and Sadad Khan (P. W. 11), who were strangers in this locality, happened to be coming out of a near‑by mosque when they heard the report of a gun and saw the appellant running away from the house of the deceased carrying a gun with him. Both the witnesses went inside the house of the deceased and saw her lying wounded on a cot in the verandah of the courtyard. On enquiries made by Sadad Khan, the deceased told him that she had been fired at by lmtiaz Rabbani. Muhammad Yusuf P. W. enquired the particulars of both these witnesses and asked them to wait there until the arrival of the police. He then himself went to fetch a doctor but before his arrival the deceased had succumbed to her injuries. In the meantime Qudrat Ullah, the male servant, went to Col. Ikramullah and informed him that the appellant had murdered Mst. Sabra in the circumstances narrated above. At about 3‑30 p.m. Muhammad Yusuf reported the matter to the police and in the first information report mentioned all the essential details of the occurrence, the motive for the crime, the name of the culprit and the statement which the deceased had made shortly before her death to Hafiz Piare and Sadad Khan P. Ws. The S. H. O. on his arrival at the spot found both Hafiz Piare and Sadad Khan present there and among others he recorded their statements under section 161, Criminal P. C., on that very day. The autopsy performed on the dead body of the deceased by Dr. S. M. Moonis, Medical Officer Incharge, Civil Hospital, Layallpur revealed the following injuries:-- (1) A hallow wound 1 1/3 " x 1 " penetrating into the chest just above the center of the breast‑bone in the middle line with contused edges. There was a hole in the breast bone distinctly visible. There was corresponding perfor ation in the shirt about the same size. There were no powder marks over the shirt or over the skin or burning. (2) An abrasion " x " situated V above and to the right of injury No. 1. (3) An abrasion " x " situated " below injury No. 1. (4) Nine lacerated wounds, each 1/8 x 1/8 " to 1/6 " x 1/6 ", split irregularly in an area of 4" x 2 ", just to the left of the back fold of right axilla encroaching the scapular region. The shirt correspondingly was badly torn and only hole was visible. A portion of the axillary border of right scapula had been chipped off. There was a patent perforation in the breast bone starting from the left of middle line reaching up to the right 2nd and 3rd costal cartiladges. The right 4th, 5th and 6th ribs in the mid‑axillary line were fractured with laceration of soft parts in an area of 4" x 2". Small pieces of ribs had been chipped off and were embedded in the fat near the scapula. A piece of card‑board had been recovered and was sent to the police. The right pleura was perforated corresponding to injuries Nos. 1 and 4 and contained 2 lbs. of blood. Small pieces of bone were found embedded in the lung lacerations. Both sides of the heart were empty. Death in the opinion of the doctor was due to shock and haemorrhage as a result of the perforation of the ascending aorta and laceration of right lung caused by gunshot. The probable time that elapsed between injuries and death was Within five minutes or so. In cross‑examination Dr. Moonis stated that in his opinion the deceased after receiving the injuries found on her person could not have talked, and if she talked at all, she could have only uttered about two or three words. After the occurrence the appellant absconded and could not be traced until on 12th of July 1955 he surrendered himself to Mt. Muhammad. Nawaz, Magistrate 1st Class, Layallpur, and made a written application that he be sent to the judicial lock‑up. As soon as the application was put up before the learned Magistrate he ordered that the appellant be escorted by the police to the judicial lock‑up and the local police be informed about it. On the 14th of July 1955 Hafiz Piare and Sadad Khan P. Ws. successfully identified the appellant at a parade held in the judicial lock‑up by Mr. Ejaz Muhammad Khan, Magistrate 1st Class, Layallpur, as the culprit whom they had seen running away from the house of the deceased carrying a gun with him. It may be noted at this stage that both these P.Ws. belong to different villages situated at some distance from the town of Layallpur and happened to have come to the town in connection with their private business. At the commitment proceedings all the afore‑mentioned P. Ws. including those who were witnesses to the occur rence, before whom the deceased had made the dying declaration and Col. Ikramullah to whom Qudrat Ullah P: W. conveyed the information that the appellant had murdered the deceased, supported the prosecution case. In addition, Col. Ikramullah deposed about the motive for the crime. As a result of this, the appellant was committed to the Court of the Sessions Judge, Layallpur, but at the trial all these witnesses went back upon their earlier state ments. Each one of them was quite emphatic in deposing that the accused was not the culprit who had fired at the deceased. Some of them admitted that the name of the culprit was Imtiaz Rabbani son of Mian Hafiz Ullah, but maintained that that person was not present in Court. They went to such an extent of absurdity as to state that when they were examined in the Court of the Committing Magis trate the real culprit was present in the dock but the person who was being tried by the Sessions judge was someone else. Hafiz Piare stated that after hearing the gun report, the young man whom he saw running away from the house of the deceased was empty‑handed. He then went inside the house of the deceased along with Sadad Khan who was a little ahead of him. The latter asked the deceased something but he could not hear what the deceased told Sadad Khan. He admitted that at the identi fication parade he correctly identified that young man whom he had seen running away from the scene of crime but added that he did not see that person present in the Court. Sadad Khan, who tried to be more clever than other P. Ws., stated that after hearing the gun report he saw the appellant running away from the house of the deceased holding a double‑barreled gun. He then went inside the house and was informed by the deceased that the name of the culprit was Imtiaz Rabbani. A few days later, the investigating officer showed the appellant to him in the Court of a Magistrate and thereafter he successfully identified him at the parade held in the judicial lock‑up by a Magistrate. He also identified the appellant as the culprit whom he had seen running away with the gun. He further added that the young man whom he had seen running away from the house of the deceased had his face muffled at that time. Muhammad Yusuf, Qudrat Ullah and Mst. Hamida P. Ws. kept nearer to the main narrative of the occurrence but in order to completely exculpate the appellant added that he was not the person who had fired at the deceased. Colonel Ikramullah denied that Qudrat Ullah P. W. mentioned the name of the appellant to him as the culprit. Mst. Fayyazi Begum, the sister of the deceased, was given up by the Public Prose cutor as having been won over by the defence. The learned Sessions Judge, at the request of the Public Prosecutor, transferred the statements of Muhammad Yusuf, Qudrat Ullah and Mst. Hamida P. Ws., recorded by, the Committing Magistrate, to his own file under section 288, Criminal P. C. and examined Mr. Muhammad Nawaz, Magistrate 1st Class, as a Court witness, who deposed that the appellant was identified by each one of the aforementioned P. Ws. as the culprit during proceedings held by him. In reply to a question asked by the Public Prosecutor, the witness stated that on the application of the appellant he straightaway sent him to the judicial lock‑up. In cross -examination he added that he did not know as to when the police actually took him to the judicial lock‑up, all that he knew was that he was immediately taken away from his Court room for being escorted to the judicial lock‑up Mr. Ejaz Muhammad, Magistrate 1st Class (P. W. 7), deposed that at 'an identification parade held by him both Hafiz Piare and Sadad Khan P. Ws. correctly identified the appellant as the culprit whom they had seen running away from the house of the deceased holding a double‑barreled gun. Abdul Ghani (P. W. 13) stated that about six months back at about 2 or 3 p. m. he was having a bath in the canal near Abdullahpur. He saw the appellant running away holding a gun in his hand. About two days later he came to know that a murder had been committed in Abdullahpur in which a woman was shot dead. In cross‑examination the witness stated that his state ment was recorded by the police two days later and what he heard on that day was that on that day, i.e. the day on which his statement was recorded the murder had been com mitted. He thus tried to alter the sequence of what he had seen and heard later on. Faced with this situation, Mr. Manzur Qadir, the learned counsel for the appellant, straightaway conceded before us that the statements made by the P. Ws. at the trial were demonstrably false and there was no secret that they had tried to favour the accused. His main argument, however, was that it would not be safe to base conviction on the testimony of witnesses who stood self‑condemned as liars. If they consented to perjure themselves during the trial at the instance of the defence, there was no guarantee that they were not lying at the earlier stage in order to support the prosecution case. He also cited a few authorities in support of this contention. The latest authority was Lai and other v. The Crown (P L D 1954 FC 95), in which their Lordships set aside the conviction which was based entirely on the statements of witnesses transferred to the file of the Sessions Court under section 288, Criminal P. C. That case is, however, distinguish able on the short ground that none of the P. Ws. had been cross‑examined during the commitment proceedings. In the present case the prosecution witnesses were cross‑examined at length during the commitment proceedings and no sugges tion whatsoever was made at that stage that it was some person other than the appellant whom the witnesses identified as the culprit either at the identification parade or before the Committing Magistrate. Similarly there was no suggestion that the young man whom Hafiz‑Piare and Sadad Khan had seen running away from the 'house of the deceased had his face muffled or that it was Maqsud, a cousin of the appellant, who wanted the hand of Mst. Talat and it was he who in October 1955 had gone to the house of the deceased armed with a gun and threatened to kill every member of the family in case his request for marriage was refused. At the trial this story was introduced in the statement of Col. Ikramullah in order to create a doubt about the identity of the real culprit. In the complaint lodged by Col. Ikramullah under section 448, Pakistan P. C. regarding the misbehavior of Mian Hafizullah and his son in October, 1954, a copy of which was placed on the record of this case, the son is described as Maqsood instead of Imtiaz Rabbani. This we believe was an error on the face of that document, because Mian Hafiz Ullah has no son by the name of Maqsood and we verified this fact during the hearing of this appeal from the learned counsel for the appellant. We were told that Mian Hafiz Ullah has a nephew named Maqsud but what is mentioned in that complaint is that Mian Hafiz Ullah wanted the hand of Mst. Talat for his son. In a case in which a Court is satisfied that the pro secution witnesses have resiled from their earlier statements to favour the accused, in our view it is not unsafe to accept as true the earlier statements which were made without any extraneous influence. It does not necessarily follow that because the later statement is demonstrably false, there is no guarantee that the earlier was also not false. It will depend upon the facts of each case as to how far consistent with the rule of caution a Court can act on the veracity of an earlier A statement. For instance, if in a given case the prosecution witnesses are shown to have an enmity with the accused or they have any other cause or motive to falsely implicate him or there is any data to draw an inference that the witnesses might have acted on a mere suspicion, a Court will consider with a good deal of anxiety the question whether the con viction of the accused be based on the basis of the statements transferred under section 288, Criminal P. C., or not. In the present case, however, neither the eye‑witnesses nor those before whom the deceased made a dying declaration had any enmity with the appellant whatsoever. In fact, Hafiz Piare and Sadad Khan were utter strangers in the locality of Abdullahpur and did not know anyone of the parties. The suggestion made by the learned counsel for the appellant that they have been procured by Col. Ikramullah is utterly in correct on the face of it. The name of both the witnesses are mentioned in the first information report which appears to have been made before Col. Ikramullah appeared at the scene. They were present at the spot when the investigating officer came there and recorded their statements. It was not argued by the learned counsel that Col. Ikramullah knew that someone was going to murder Mst. Sabra on that day and with a view to procure false witnesses to the occurrence he had in advance arranged for the presence of these witnesses near the place of occurrence. We, therefore, feel no hesitation in relying on the state ments of three of the P. Ws. transferred to the file of the Sessions Courts under section 288, Criminal P. C. There is also the evidence of identification of the appellant by Hafiz Piare and Sadad Khan P. Ws. Hafiz Piare did admit that he correctly identified the real culprit at the parade and it is fabulous to believe that that person was someone other than the appellant or the person whom he had pointed out before the Committing Magistrate. We also do not believe that Sadad Khan was shown the appellant in the Court of the Magistrate before he identified the appellant at the parade held by Mr. Ejaz Muhammad, Magistrate. In our view there was no such opportunity available to the investigating officer even if he wanted to do so. The appellant did not surrender himself to the Magistrate in consultation with the investiga ting officer and there is nothing to show that Sadad Khan who belongs to a different village happened to be present in the police station just by chance on that day. As a result of the above discussion, we agree with the learned Sessions Judge's finding that the charge of murder has been fully brought home to the appellant, and maintain his conviction and sentence. At the conclusion of his address, Mr. Manzur Qadir pleaded that in view of his tender age the appellant should not be given the extreme penalty of, law. A school-leaving certificate was placed on the record by the defence, according to which the appellant was about 151 years of age at the time of the occurrence. The learned Sessions judge has, however, stated the age of the appellant by appearance to be 17 or 18 years. No evidence was led by the defence to prove the correctness of the entries in the school‑leaving certificate. Besides, much reliance cannot be placed on similar documents particularly when it was open to the defence to produce cor responding entries from the birth register maintained by the Government authorities. We have, therefore, preferred to rely upon the judgment of learned Sessions judge that the appellant was about 18 years of age at the time of occurrence and confirm his death sentence. K. B. A. Appeal dismissed.