1968 P Cr (PLP)

4. The three important prosecution witnesses are Muhammad Din (P. W. 2), Nawab Ahmed (P. W. 3) and the injured Nazir Ahmed f (P. W. 6). One Mohammad Yaqoob (P. W. 4) was also examined, who stated that he had seen Nazir Ahmed lying injured and that he was taken to the Hospital by Phhagal alias Muhammad Din.

5. The fact that Nazir Ahmed received knife injuries on his person, presents no difficulty. The testimony of Dr. Ghulam Rasool, the C. M. O. of the Civil Hospital (P. W. 7) is that Nazir Ahmed had six incised injuries on his chest, left upper arm and on the left hip joint, all of which had been inflicted with a sharp‑edged weapon like a knife rendering the injured unconscious when he was brought to the hospital. He was hardly able to speak, and there was danger to his life.

6. The only point that requires consideration is whether these appellants, on the evidence on record, have inflicted these injuries on Nazir Ahmed _ in furtherance of their common intention,

7. The learned Additional Sessions Judge laboured under an obvious difficulty, in that the 3 principal prosecution witnesses in the Sessions Court gave their version given in the‑committal proceedings go‑bye. As remarked by the learned Additional Sessions Judge even the injured did not speak the truth in the Sessions Court. Nazir Ahmed admitted that the appellant Sikandar Azam was closely related to him, and although the injurod in the committal proceedings had fully supported the prosecution case in that Sikandar Azam had inflicted knife blows on him and that Nazir Ahmed had facilitated this by holding the onlookers at bay with a hockey stick, and gave the other detain of the accident as took place before and after the injuries were actually inflicted, in the trial Court he went back upon all this. Briefly, his evidence there was that he was sitting at the shop of his brother when the appellant Sikander came up and abused him and struck him on his mouth, that he thus bled and fell down and became unconscious and regained consciousness in the Hospital. He could not remember whether in the committal pro ceedings he had stated that the two appellants had come together earlier before the incident, or that they were armed, but admitted that Phhagal alias Muhammad Din bad taken him to the hospital. He asserted, however, that Sikander bad given him a blow on his mouth on account of which his tooth was broken, and concluded by saying that what he stated in the committal proceeding was due to his being tutored by the police.

8. Similarly P. Ws. Muhammad Din and Nawab gave their earlier version of the prosecution case a go‑bye, although Phhagal arias Muhammad Din admitted having taken Nazir to the hospital. The learned Additional Sessions Judge considered it necessary to bring on the record before him the statements made by the three witnesses in the committal proceedings under section 288, Cr. P. C. and it is principally on the basis of these statements that he came to the conclusion that these previous statements in committal proceedings contained the truth. He held that the witnesses bad spoken the truth in the committal proceedings, and on the basis of this finding, convicted the two appellants. He was of the view that the witnesses have been tampered with principally due to the close relationship between appellant Sikander and the injured Nazir. It is, therefore, to be considered whether in these circumstances the appellants could have been convicted or whether they are entitled to the benefit of the doubt.

9. There is ample judicial authority for the proposition that the statements made by witnesses in committal proceedings can be brought on record and indeed that such statements in preference to the evidence given by the witnesses in the trial court can be the basis of a conviction. But the value of such statements transferred to the file of the trial Court, depends upon how far they can be believed and accepted in the context of the entire case. The over‑riding aspect is that in the present case their witnesses have not only modified their initial case set up in the committal proceedings by swelling the number of the culprits, but indeed have gone back upon it. The cumulative effect of their evidence‑ in the Sessions Court is that they did not know who inflicted the injuries in furtherance of the common intention on injured Nazir Ahmed.

10. In Chhota Gada and others v. The State (P L D 1964 Dacca 256) it was observed that the evidence of a witness, recorded in the committal Court in the manner indicated in section 288, Cr. P. Code can, subject to the provisions of the Evidence Act be treated as substantive evidence even apart from the purpose of corro boration or contradiction if the witness is examined in the Sessions Court.

11. The principles on which an assessment of the entire evidence is to be made can best be quoted in the words of D. B. of the Lahore High Court in Subhan Khan and others v. The State (P L D 1.960 Lab. 1) "The value to be given to statements transferred under section 288, Cr. P. C. will depend on how far those statements can be believed and accepted when read in the context of the whole case and on the amount of strength which they can receive from other evidence available in the case. Standing by themselves, such statements do not furnish a safe guide forming conclusions about the guilt or innocence of an accused person.. Primarily it is the evidence given at the trial which can be considered and used against an accused person. Evidence of a witness recorded during the commitment inquiry and transferred under section 288 can be transferred; in the direction of the trial Judge, and treated as substantive evidence, becoming a part of that witness's statement, but this evidence is subject to the same, if not severer, tests of appreciation and evaluation as any other evidence. If a statement made during commitment inquiry is repudiated at the trial its evidentiary value is certainly not enhanced but is definitely louvered as, amongst other things, it is the statement of a person who, in view of his conduct, cannot be credited with any scruples for truth and integrity. Technically there may be no legal objection for a conviction being based on such depositions transferred under section 288, Cr. P. C. but as a rule of prudence, now well recognised, Courts must look for positive and material corroboration of such statements. The basic thing to consider as in all types of evidence is, whether the evidence furnished by these statements is true. The mere fact that a witness has gone back on his previous statement and is helping the accused for one reason or another will not raise any presumption that 'the previous statement' is true, and the statement made at the trial is false as both may be untrue."

12. In Kamir v. The State (P L D 1963 Lab. 585) a D. B. of that Court were of the view that when witnesses at the Sessions trial have gone back on their previous statement made in the Committal Court, the Court must look for positive and material corroboration before convicting an accused on earlier depositions of such witnesses transferred under section 288 of the Criminal Procedure Code.

13. Their Lordships of the Federal Court in Gal and others v. The Crown (PLD1954FC95) have made very valuable and telling observations in regard to the valuation of evidence received under section 288, Cr. P. C. and the reasons for preferring statements before the committing magistrate to that at the trial, stating that speculative reasons were not enough and that indeed "the ring of truth" was not a test which is inconsistent with the Court's duty to decide the conviction or otherwise of the appellants on the basis of evidence, and that when there is such a disregard of the correct principles of the valuation, interference is called for by the higher courts. In this case before their Lordships of the Federal Court, the High Court had preferred the statements of P. Ws. 3 and 4 made before the Committing Magistrate in preference to that made at the trial, their Lordships being of the view that when two versions were given by the same person which cannot be reconciled with each other and the other version is equally plausible and consistent with other evidence and circumstances, the rule applying must be that the benefit of the doubt of the prosecution case must go to the accused.

14. In Wahid Bux v. The State (P L 13 1963 Kar. 837), Khamisani, J. observed that when it is found that the evidence given by the witness in the Sessions Court is false and to base a conviction upon statement made by the witness in the committal court which was brought on record under section 288, Cr. P. C., corroboration was necessary before such statement or statements could be relied upon. In that case the witnesses had discarded the entire prosecution case in their testimony before the Sessions Court, and my learned brother was pleased to observe that if one were to discard the entire evidence recorded in the Sessions Court and base the conviction totally upon the statements recorded in the committal court, it would besetting out a bad precedent and that in such cases some corroboration was necessary for the purpose of deciding as to whether the statements made in the committal court were true or whether the statements made by them in the Sessions Court were false‑

15. Observations to the same effect were made by a D. B. of the Dacca High Court in Daud All and another v. The State (P L D 1962 Dacca 613).

16. Viewing the entire case on the principles set out above, it is quite clear and indeed admitted by the prosecution that there is no corroborative evidence or circumstances to support the prosecution case. Indeed the assertion of the injured Nazir that he 'had been struck by appellant Sikandar on his mouth resulting in ‑a broken tooth is not supported by the medical evidence which falsifies this assertion. There is no evidence or circumstance to indicate that any pressure was brought on the prosecution witnesses by the appellant on account of which they did not support the prosecution case. This is, therefore, essentially a case in which the conviction of the appellants cannot be sustained upon the: statements of persons who in view of their conduct cannot be credited with any scrupple for truth and integrity. In my view, therefore, there is no legal basis on which the convictions of the appellants can safely be maintained, and I am, therefore, constrained to set aside their conviction and sentence and allow the appeal directing consequently that the appellants be released forthwith from jail, unless they are wanted in any other case. The appellants are on bail. Their bail bonds are cancelled. Appeal allowed.