P L D 1958 (W (PLP)

ABDUL AZIZ KHAN, J.‑This is an appeal by Muhammad Afzal Darishak who has been convicted by Mr. M. M. Aslam Khan, Sessions Judge, Dera Ghazi Khan, under section 302 of the Pakistan Penal Code, and has been sentenced to death for the murder of his brother's widow Mst. Khanzadi, on the 12th of July 1957, at peshiwela; in a field situate in the area of Chah Sarwala, Dakhli Kotla Qaim. The case is also before us under section 374 of the Code of Criminal Procedure for the confirma tion of the death sentence. This judgment will dispose of the appeal as well as the reference for confirmation.

2. The investigation in this case started on a first informa tion report registered at Police Station Rajanpur at the instance of one Khan Muhammad on the 12th of July 1957, at 6‑30 p.m. The report is printed at page 9 of the paper book and its English translation is as follows :‑ "I am a pattidar of Basti Hatkani. Today at about peshiwela, 1, Haji Sobha Khan son of Muhammad Khan, and Ghulam Sarwar son of Ramzan Khan, caste Hatkani, were sitting outside my house under the chhappar when Muhammad Afzal son of Dost Muhammad, caste Gurmani, resident of Sarwala well Dakhli Koda Qaim, came with a bloodstained hatchet in his hand and wearing bloodstained clothes, and made the follow ing statement :‑ `At about midday I went from my house to Sarwala well to look after the irrigation of my field. I was armed with a kulhari. As soon as I reached the bhana of Sarwala well, 1 saw my sister‑in‑law (brother's wife) Mst. Khanzadi, widow of Bachal, and Ali son of Nihala, caste Mirasi, resident of Chah Nawan Bachalwala Dakhli Kotla Qaim running out of the bhana. There was already a suspicion about an illicit intimacy between them. I ran after Ali but he escaped. I then ran after Mst. Khanzadi who was running home. I overtook her at a distance of 8 or 9 karams from the well and gave her blows on the neck, on the front and back side, with the kulhari with which I was armed. She succumbed to these injuries there and then. The dead body of Mst. Khanzadi is lying near the well. 1 have come to make a report to you.' Accordingly when I heard the above story, I took into possession the bloodstained kulhari, the weapon of offence, from Muhammad Afzal, and have come to make a report. I produce Muhammad Afzal along with the bloodstained kulhari, the weapon of the murder. I have sent Haji Sobha Khan and Ghulam Sarwar to the place of occurrence to guard the dead body of Mst. Khanzadi." After the report had been recorded, Khan Muhammad produced Muhammad Afzal appellant and the bloodstained hatchet (Ex. P. 4), which A. S. I. Nur Muhammad (P. W. 13) sealed into a parcel vide memo. Ex. P. C. As the appellant's shirt (Ex. P. 5) and chadar (Ex: P. 6) bore bloodstains, the A. S. I. removed these garments from Muhammad Afzal's person and sealed them into a parcel vide memo. Exh. P. D.

3. The Assistant Sub‑Inspector reached the spot at 9 p.m. He found Nazar Husain (P. W. 9), Allah Diwaya (P. W. 10) and others present with Mst. Khanzadi's dead body. He prepared the injury statement and the inquest report and sent the dead body to the mortuary for post‑mortem examination.

4. Dr. Mirza Rafiq Beg (P. W. 1), who performed the post mortem examination, on the 14th of July 1957, at 8 a.m., observed the following injuries on Mst. Khanzadi's dead body :‑ (1) An incised wound, 8" x 7" involving the back of the head and the whole of the neck, except a tag of skin in front with which the head was attached to the body. The occipital bone of the head, muscles, arteries, veins and nerves and vertebral of the neck were all cut. Lower jaw was cut into many pieces. The wound was due to multiple cuts overlapping one another. (2) An oblique incised wound, 3" x 2 " x muscle deep, on front of the right arm, 2" below the shoulder. (3) An oblique incised wound, 3 " x 2" x muscle deep on front of the right arm, 2" below injury No. 2. (4) An oblique incised wound, 2 " x 1" x bone deep, on back of left hand and adjacent part of left index finger. Bones under the wound were cut.

5. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him.

6. At the trial the prosecution examined thirteen witnesses in support of its case, including Nazar Hussain (P. W. 9) and Allah Diwaya (P. W. 10), the alleged eye‑witnesses of the occur rence. Nazar Hussain and Allah Diwaya P. Ws. stated at the trial that on the eventful day, at peshiwela, when they were grazing their cattle in the jungle of Chah Sarwala, they heard a hue and cry from the north and saw Afzal appellant causing injuries to his brother's widow Mst. Khanzadi with a hatchet. Out of fear they did not go to the spot during the attack on Mst. Khanzadi. After the appellant had run away towards Basti Hunkani taking the kulhari Ex. P.4 with him, they went to the spot and saw Mst. Khanzadi lying. dead. They guarded the dead body till the arrival of the Assistant Sub Inspector.

7. The prosecution case thus rests on the evidence of the two eyewitnesses and the recoveries referred to above.

8. At the trial a novel procedure was adopted by the Public Prosecutor with the approval of the learned Sessions Judge. On the 25th of September 1957, the learned Public Prosecutor made the following statement : "I give up Khan Muhammad on whose statement I do not rely. I also give up Haji Sobha and Sarwar for the same reason. The trial would be vitiated in view of P L D 1954 Lah. 183 if I produce them and I do not rely on the version which they will be able to give. They are present outside the Court if required by the defence." It is significant that the learned Sessions Judge approved of this procedure as would appear from the following passage in his judgment : "The prosecution did not prove the F. I. R. in this case and gave up Khan Muhammad who had made the F. I. R. The P. P. said that he did not rely on the statement of Khan Muhammad and, in view of the pronouncement of Rahman, C.J., in P L D 1954 Lah. 183, the trial would have been vitiated if Khan Muhammad had been examined or the F. I. R. made by him had been proved. The motive also has not been proved."

9. The sole question for determination is whether we can safely rely on the evidence of Nazar Hussain (P. W. 9) and Allah Diwaya (P. W. 10), the alleged eyewitnesses of the occurrence. In order to satisfy ourselves that Nazar Husain and Allah Diwaya P. Ws. had in fact seen the occurrence, we care fully perused the inquest report Ex. P. J. The names of these two witnesses appear to have been added after the completion of Ex. P. J. Their names have been written with a pencil different from the one with which the rest of the document had been written. Both these witnesses stated that they remained with the dead body till the arrival of the police. If it were so, their names could not have been over‑written and, with a different pencil. These circumstances lead us to doubt that they had seen the occurrence and were in fact present with the dead body at the time of the arrival of the Assistant Sub‑Inspector. We, therefore, do not consider it safe to rely on their evidence. If their evidence is ruled out of consideration, the only evidence left on the record to connect the appellant with the commission of the offence is the production of the bloodstained hatchet by Khan Muhammad and the removal of the bloodstained garments from the person of the appellant by the Assistant Sub‑Inspector. This evidence by itself is not sufficient to maintain the conviction of the appellant. We, therefore, accept the appeal, set aside the conviction and sentence of the appellant, and acquit him. He shall be released forthwith if not required to be detained in connection with any other case.

10. The sentence of death imposed on the appellant is not confirmed.

11. Before concluding the judgment, we consider it necessary to say a few words about the procedure adopted by the learned Public Prosecutor in not proving the first information report. It needs no emphasis that a first information report recorded by the police is of considerable value at the trial, because it shows on what materials the investigation commenced and what was the story disclosed at the first oppor tunity. In every trial it is important that the judicial officer. A should know the facts which were given out immediately after the occurrence and reported to the police. This enables the Judge to weigh the evidence at the trial in the light of the facts stated at the earliest opportunity. In the present case, the learned Public Prosecutor stated that he did not wish to prove the first information report. In doing so he purported to rely on AM and others v. The Crown (P L D 1954 Lah. 183) which has no bearing whatsoever on the point. The point involved in that case was the validity of a joint trial of two sets of accused persons who, according to the two stories before the Court, were involved in the murder to the exclusion of each other. The learned Judges held that the joint trial of the two groups was illegal and not merely irregular.

12. We would draw the attention of both the learned Sessions Judge and the Public Prosecutor to a Division Bench judgment of the Lahore High Court reported as Hasil v. Emperor (A I R 1942 Lah. 37) in which it was held: "Since it is the duty of the prosecution to bring out any evidence which may assist in arriving at a true decision, a statement of the accused made almost immediately after the occurrence should be brought out at once in the trial Court as a relevant fact, even though it may contain something in favour of defence." The conviction of the appellant would have been certainly obtained if the prosecution had not attempted to hide essential facts.

13. We anxiously considered' the desirability of examining Khan Muhammad, the maker of the first information report, and the Assistant Sub‑Inspector who recorded it, under section 428 of, the Code of Criminal Procedure, but refrained from doing so as this would have amounted to filling in a gap which was deliberately created in the prosecution case. A. H. Appeal accepted.