P L D 1954 Lahore 218 (PLP)

MUHAMMAD JAN, J.‑Allah Ditta, his son Ahmad, his cousins Ramzan and Shahru and their relatives Wazira, Kaura. Hasan, Kaisar Khuda Bakhsh, Mahmud and Imaman were tried on charges under sections 148, 302/149 and 323/149 P. P. C. Khuda Bakhsh, Mahmud and Imaman were acquitted. The remaining eight were convicted and sentenced as follows. Under section 148 to one year's rigorous imprisonment each, under section 325149 to five years rigorous imprisonment each and under section 323/149 to six months' rigorous imprisonment each, concurrently with the other sentences. The convicts have appealed. The prosecution case is that Mst, Jantan, daughter of Allah Ditta appellant, was married to one Qadra who died six or seven months before the occurrence. She had unlawful intimacy with Nura, son of Wali. during the life‑time of her husband. After his death she left village Pirhar Gharbi where her husband lived and went to her father's house in Bet Sawai on the other side of river Indus. She wished to marry Nura (P. W. 21) but her parents did not agree. Some twenty days before the occurrence she was brought to the house of Nura and was married to him by Hasan Ali Nikah Khan (P. W. 12) on 29th November 1951. The Nikah was entered in the marriage register. Exh. P. B. On 7th December 1951, at about isha prayer time, the accused named above accompanied by one Amira came to the house of Nara in order to take away Mst. Jantan by force. They were armed with kulharis and lathis. Nara, Mst. Jantan, Wali, his wife Mst. Bakhtawar and another Mst. Jantan, a cousin of Nara, were present in the house. The accused broke open the door which was chained from inside. Some of them entered the house whilst others remained outside. Mst. Jantan, wife of Nura, hid herself in an earthen bin and could not be seen. It was dark and Wazira appellant lit' a match stick to look for her and on not finding her was annoyed and struck Wali who subse quently died as a result of the injuries inflicted on him. Some other accused, who could not be distinguished owing to darkness, beat Nura (P. W. 21). On hearing the noise from Wali's house Allah Bakhsh (P. W. 18) and his son Qadir Bakhsh (P. W. 25), who lived in an adjoining house, came there. Allah Bakhsh is a brother‑in‑law of Wali. He asked the accused to go away but they refused to do so and attacked him. Qadir Bakhsh ran back to his house and carne with a sword with which he caused a simple injury to Hasan accused and a grievous injury on the arm of Kaisar accused. Nura (P. W. 21) came out with a gun and fired a shot which hit Amira and killed him. Then the accused ran away. On the next day Nura made the report, Exh. P. A., at Kot Adu Police Station The police came to the spot from where they recovered a kulhari Exh. P. 3, a lathi Exh. P. 4 and a sword Exh. P.

6. On searching the house of Mahmud accused they recovered another kulhari Exh. P. 6 and a sandhari Exh. P.

2. The weapons mentioned above were subsequently found to be stained with human blood. Dr. Amanallah (P W 1) performed the post‑mortem examination of Wali Muhammad on 10th December 1951 and found the following injuries on his person:

1. A contused wound on the left side of the head, 2" x " x ".

2. A contused wound 2 " behind injury No. 1, measuring " x " x ".

3. A contused wound 2" above the right eye‑brow, " x " x ".

4. A contusion mark above the right ear with an abrasion over it, measuring 1" x ". The right side of the brain was congested and the right temporal bone was fractured and Injury No. 4 was stated to be sufficient in the ordinary course of nature to cause death. Dr. Manzur Abbas (P. W. 2) examined Qadir Bakhsh, Allah Bakhsh and Nura P. Ws. Qadir Bakhsh had three simple injuries caused with blunt weapons, Allah Bakhsh had thirteen simple injuries caused with blunt weapons and Nura had three simple injuries caused with blunt weapons. Dr. Muhammad Idris (P. W. 3) examined Hasan and Kaisar accused. Hasan had one simple incised injury and Kaisar one grievous incised injury. Ch. Fazal Karim Naib‑Tahsildar (P. W. 5) held an identification parade on 24th December 1951. Hasan accused was identified by Qadir Bakhsh only, Kaisar was identified by Qadir Bakhsh. Allah Bakhsb, Nura and Ghulam Hussain P. Ws. Wazira was identified by Nara, Qadir Bakhsh, Mst. Jantan, wife of Nara, and Mst. Bakhtawar mother of Nura. Kaura was identified by Allah Bakhsh, Qadir Bakhsh, Nura, Mst. Jantan, wife of Nara, and Mst. Bakhtawar. Shahru was identified by Nara, Qadir Bakhsh and Mst. Jantan wife of Nara. On the same day another identification parade was held by Ghulam Akbar Khan Naib‑Tahsildar (P. W. 6) in which Khuda Bakhsh accused was identified by Ghulam Hussain P. W. Two days later, i.e., on 26th January 1952 Sharif Ahmad Khan Naib‑Tahsildar (P. W. 4) held an identification parade in which Qadir Bakhsh and Mst. Jantan, wife of Nara, identified Mahmud accused but no one identified Imaman accused. Imaman, Mahmud and Khuda Bakhsh were acquitted as stated already. At the trial all the eye‑witnesses except Ghulam Hussain made statements damaging to the prosecution. Nura denied having made the report, Exh. P. A., and went back upon the statement made by him in the Court of the Committing Magistrate which was consequently transferred to the record of Sessions Court. The trial Court held that Ghulam Hussain (P. W. 22), who supported the prosecution case, was an entirely disinterested witness and the motive for the crime was established from the evidence of Mst. Jantan (P. W. 19) and Nura (P. W. 21). It was admitted by Allah Ditta appellant that Mst. Jantan was his daughter and the accused were either his friends or relatives. According to Allah Ditta appellant, Nura had abducted his daughter Mst. Jantan and had then asked him to attend their marriage on the promise that he would give him a girl in exchange for Mst. Jantan. He went there with Amira deceased and Hasan accused and when they reached the house of Wali a fight took place. In order to help Nura the police had concocted this case falsely against him. In the Court of the Committing Magistrate .Allah Ditta did not say how Wali and Amira were killed. In the Court of Session he said that Allah Bakhsh P. W. and Amira deceased fought with each other. Wali deceased tried to disengage them. Nura fired at Amira. He did not say how Wali was killed and whether the shot fired by Nura hit Amira or not. Hasan accused said that he had gone with Allah Ditta and Amira to the village of Nura but stayed in a school until the evening when he heard a noise and on going to the spot found Amira and Baqi (Allah Bakhsh) fighting with each other. He tried to separate them and sustained injuries. Wali had fallen down injured and Nura was present but he had no gun in his hand. He heard the sound of a gun shot. Amira was hit and killed. He said he was falsely implicated because he had given no information about this occurrence to the police. All the other accused denied their participation in this crime. The trial Court held that the plea of Allah Ditta that he had gone to attend the marriage of his daughter Mst. Jantan with Nura P. W. was incorrect because the marriage register showed that Nura and Mst. Jantan had been married more than a week before. He had a strung motive for the‑crime. He was named in the F I R and identified by Nura, Allah Bakhsh and Ghulam Hussain. Ramzan, Ahmad, Shahru, Kaura and Wazira were named in the first information report, related to Allah Ditta appellant and identified by the witnesses named above. Kaisar and Hasan, besides being identified, had injuries on their persons. The explanation of Kaisar that he was hurt in his own house with a vahola was not accepted as correct by the trial Court. As the accused were said to have been armed with kulharis and lathis and the injuries on, the prosecution witnesses were all caused with blunt weapons it appeared to the trial Court that the use of the kulharis as such was scrupulously avoided and, therefore, culpable homicide was not the common object of the assembly. They were, therefore, convicted under section 325/149 because they were presumed to have known that grievous hurts were likely to be caused. They were also convicted for rioting and causing simple hurts. In appeal the learned counsel for the appellants contends that the statement of Nura in the Committing Magistrate's Court was not transferred to the record of the Sessions Court in accordance with law and, therefore, could not be used as evidence. He argued that before a statement can be transferred under section 288 Cr. P. C. it must be read out to the witness, in the hearing of the assessors and the accused ; anal the order transferring the statement must be passed in the presence of the witness whose statement is transferred. In support of his contention he relied upon section 268.Cr. P. C which says that all trials before a Court of Session shall be either by jury or with the aid of assessors ; section 353 Cr. P. C. which says that except as otherwise expressly provided, all evidence taken under Chapters XVIII, XX, XXI, XXII and XXIII shall be taken in presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader. The learned counsel further relied on section 360 Cr. P. C. which says that the evidence of a witness shall be read over to him in the presence of the accused and section 145 Evidence Act which says that if it is intended to contradict a witness by a previous written statement his attention must, before the statement can be proved, be drawn to those portions of the statement which are to be used for the purpose of contradicting him. In this case the portions with which the witness was contradicted were pointed out to him in cross‑examination by the Public Prosecutor. The trial in this case was with the aid of assessors as provided by section 268 Cr. P. C. All the evidence was recorded by the Sessions judge in the presence of the accused, in accordance with section 353 Cr. P. C., and read out to the witnesses in the presence of the accused according to section 360 Cr. P. C. The same procedure was observed by the Committing Magistrate in recording the evidence of Nura under Chapter XVIII. Section 288 Cr. P. C. provides that the evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the presiding judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act, 1872. The evidence of Nura was duly recorded in the presence of the accused under Chapter XVIII. He was produced and examined as a witness at the trial and his attention was drawn to the material portions of his statement recorded under Chapter XVIII, Cr. P. C. The learned Sessions judge had the discretion to treat the statement of Nura under Chapter XVIII as evidence in the case. There is nothing in section 288 Cr. P. C: to warrant the assertion that the statement recorded under Chapter XVIII must be transferred to the record of the Sessions A Court in the presence of the witness. The transferring of a statement recorded under Chapter XVIII to the record of the Sessions Court merely means the treating of that statement by the Sessions Court as evidence in the case. In my opinion, the statement of Nura under Chapter XVIII Cr. P. C. was quite correctly treated as evidence in this case under section 288 Cr. P. C. The statement, translated into English, is as follows :‑ "Mst. Jantan was the widow of Qadira. Qadira resided at my well. I had contracted illicit intimacy with Mst. Jantan aforesaid during his lifetime. Qadira aforesaid died 10 or 11 months ago. Mst. Jantan then went to her parents' village, Sawahi (?). Mst. Jantan was willing to contract marriage with me but her parents did not agree. About 5 months ago, Ramzan accused, Mst. Jantan's paternal uncle, came along with her to my well. He took Rs. 400 from me and left her with me. 14 or 15 days after her arrival, I performed Nikah with her and got an entry to this effect duly made in the register. 7 days after the Nikah, in the evening, my wife, my father Wali, my mother Mst. Bakhtawar, my cousin Mst. Jantan and I were present inside the house. My cousin Mst. Jantan went outside to urinate. She came back and informed me that the enemies had come, that some armed men were coming to our house. I was already entertaining apprehensions at the hands of Allah Ditta and others. I chained the door of the sal from inside. I concealed my wife, Mst. Jantan, inside the earthen kalothi. The men coming from outside pushed the door, and broke it open. Four or five men rushed into the sal, out of whom I knew one, whom I identified at the spot. He was Wazir accused, now present in Court. These 5 men were armed with sticks and kulharis. They came inside and began to search for Mst. Jantan. They caused injuries to me and my father. At that time my mother put out the fire and there was darkness inside the room. I had an unlicensed loaded gun with me lying under the charpai. I picked up the gun and went outside. Allah Ditta, Kaura, Ramzan, Shahru and Ahmad accused persons were standing outside. They were 12 or 13 men in all. They too were armed with kulharis and lathis. It was a moonlit night. On coming outside I saw that these 10 or 12 accused aforesaid were (beating?), Allah Bakhsh and Qadir Bakhsh. Thereupon, I, in order to save them, fired the gun. Of them, one man fell down and died there and then. Qadir Bakhsh and Allah Bakhsh, witnesses, gave them a beating in self‑defence. Mst. Aishan wife of Jandan (?) whose house is nearby also came to the 'place of the occurrence. All the accused took to their heels on the firing of gun. They left a kulhari, a lathi and a sindhari at the spot. C C Beside, the gun, P. 1, the accused left sindhari P. 2. kulhari I D P. 3, lathi P. 4 and kulhari P. 6 at the spot which I produced. All the accused came to carry away my wife because they did pot agree to her marriage with me I and my father Wali received injuries. Wali succumbed to the injuries. I reached the police station next day in the morning and got the report Exh. P. A recorded. It was read over to me and I thumb‑marked it having admitted the same to be correct. Memo. Exh. P. B., is the entry regarding my Nikab, which I produced before the police and which the Sub‑Inspector took into possession vide Exh. P. C. I identified Qaisar, Kura, Shahru and Wazir accused inside the jail." In the Court of Session Nura was produced in handcuff's because he was accused in the cross‑case for killing Amira. His handcuffs were removed and he deposed that he had illicit connection with MO. Jantan during the lifetime of her husband and after his death she went away to her parents house. She wanted to marry him but her parents did not agree. About 15 days before the occurrence Ramzan appellant who was an uncle of Mst. Jantan had brought her to his house and left her there in consideration of Rs.

400. Eight or ten days before the occurrence he got married to her and the marriage was registered vide Exh. P. B. On the day of occurrence he, his father Wali, his mother Mst. Bakhtawar, his wife Mst. Jantan and a cousin of his also named Jantan were sitting in the kotha of his father Wali. His cousin Mst. Jantan went out for a while and came back running to say that the enemies had arrived and they should shut the door. The door was accordingly chained and MO. Jantan, wife of the witness, concealed herself in a bin lying inside the kotha. The culprits broke open the door and five of them entered the kotha. They were armed with kulharis and sticks. He recognised Wazira because he lit a match stick. The culprits who bad entered the kotha looked for Mst. Jantan but could not find her. Then they beat him and his father Wali. He did not see the culprits who had remained outside the kotha because he did not go outside. At this stage the Public Prosecutor asked for permission to crossexaminer the witness which was granted because the witness had stated in the Court of the Committing Magistrate that be bad gone out of the kotha with a loaded gun and seen the accused standing outside. When this portion of his statement was read out to the witness by the Prosecutor he denied making the statement and the portion read out to him was marked A to A. He denied that be had stated in the Court of the Committing Magistrate that he had seen Allah Ditta, Kaura. Ramzau, Shahru and Ahmad accused standing outside the kotha. He further denied making the statement that the culprits were 12 or 13 in number, that they were armed with kulharis and lathis, that the night was moonlit, that Allah Bakhsh and Qadir Bakhsh P. Ws. were attacked by the culprits, that in order to save them he fired a shot which killed one of the culprits on the spot and that Allah Bakhsh and Qadir Bakhsh beat the culprits in self‑defence. This portion was marked B to B and duly put to the witness. He denied having stated that he bad produced the gun before the Sub‑Inspector or that he had made the statement marked C to C and D to D. He further said that he had neither gone to the police station on the day following the occurrence nor had he made any report there and the statement in the Court of the Committing Magistrate that he had reached the police station on the following day and made the report Exh. P. A were incorrect. This portion of his statement was marked E to E. He admitted that he was being prosecuted for the possession of an unlicensed gun and for shooting Amira dead. He admitted that he had identified Qaisar, Kauhra, Shahru and Wazira appellants in an identification parade as being among the persons who had invaded his house in Pirhar Gharbi and killed his father Wali. At this stage the Prosecutor requested that the statement of the witness before the Committing Magistrate should be transferred to the record of the Sessions Court under section 288 Cr. P. C. Counsel for the accused opposed this request and the Court ordered that the point may be argued at a later stage, before the conclusion of the prosecution case ; the counsel for the accused proceeded to cross‑examine the witness. He admitted that he had made no mention in his report that Ramzan appellant had brought Mst. Jantan to him and had left her there in consideration of Rs.

400. He denied that he had stated that he himself had brought Mst. Jantan, but admitted that he had gone to police station Kot Adu on the day after the occurrence and made a statement to the Sub‑Inspector. The evidence of Nura was recorded by the Sessions judge on 186 April 1953 and on 20th April 1953, before the conclusion of the prosecution case, the trial Court asked the counsel for the accused to state his reasons why the statement of Nura should not be transferred to the record of the Sessions Court under section 288 Cr. P. C. The counsel withdrew his objection and the learned judge recorded an order that, independently of the withdrawal of objection by the counsel for the accused, the witness had given a totally different version in his Court from that given in the Court of the Committing Magistrate and the statement made by the witness in the Court of the Committing Magistrate appeared to be substantially correct. He, therefore, ordered that the statement made before the Committing Magistrate be treated as evidence in the case under section 288 of the Code of Criminal Procedure. I can see nothing illegal or improper in this order. Mst. Jantan (P. W. 19) gave the relationship of the various accused with herself and said that she bad illicit intimacy with Nura during the lifetime of her husband and after his death she went to live with her parents. She wanted to marry Nura but her parents did not agree. About 20 days before the occurrence her uncle Ramzan accused brought her secretly to the house of. Nura. Wali, father of Nura, paid Ramzan Rs. 400 and he left her with Nura and went back home. Seven or eight days before the occurrence she was married to Nura. Then she gave a full description of how their house was raided and broken open. She bad jumped into an earthen bin from where she recognised Wazira accused when he lighted a match stick, She had concealed herself out of fear and did not know who were outside the house. She heard the report of a gun and the sound produced by the striking of sticks. When she c me out of the bin she found Wali, Allah Bakhsh, Ghulam Qadir and Nura injured and one man lying dead two or four paces away from the kotha of Wali, She admitted that she had identified not only Wazira but also Shahru, Kaura and Mahmud appellants in the parade held in Dera Ghazi Khan Jail. In view of her statement that Shahru was married to her sister and Koura accused was her cousin, their identification by Mst. Jantan is of no value. Mahmud accused has already been acquitted. Therefore, the only accused who can be said to have been properly identified by Mst. Jantan is Wazira appellant. She was confronted with her police statement in which she had made no mention of Ramzan bringing her to the house of Nura and it appears to me that this statement was made to protect Ramzan, who is her uncle, by showing that he had no motive for joining the raid when he had himself brought her to Nura for which he had been handsomely rewarded. She has not disclosed any relationship with Wazira and he is the only person whom she identified in Court. Mst. Jantan, the cousin of Nura, was tendered for cross-examination which was declined. Allah Bakhsh (P. W. 18) said that Wali deceased was married to the sister of his wife and their houses adjoin each other. On the day of occurrence he saw eight or nine persons outside Wali's kotha. Some had gone inside but he could not tell how many. Those standing outside were armed with hatchets and lathis. It was a moonlit night and out of those standing outside he recognised Allah Ditto, Ahmad, Shabru, Ramzan, Kaura and Mahmud. He beard the men inside saying that Mst. Jantan was not there and may be she was in the witness's house. Then they came out and, on seeing him, they and the men outside attacked him. He bad a plough rod in his hand with which he struck his assailants. At this stage his son Qadir Bakhsh, who is also known as Ghulam Qadir, arrived with asword, Exh. P. 5, and started fighting with the assailants. The witness received 12 or 14 injuries and fell down. Then he heard the report of a gun but could not say who had fired the shot. One of the intruders was killed outside the door of Wali's kotha and Wali lay dead inside. The six persons named by him were already known to him. He identified Qaisar in the parade held in jail. Qadir Bakhsh (P. W. 25) stated that he saw some persons entering the kotha of Wali and some remaining outside. When they attacked his father he brought out a sword and attacked them but he did not recognise anyone. No saw Nura firing a gun and killing one of the culprits. He admitted that in the identification parade he had picked out Wazira, Kaural, Shahru, Ahmad, Hasan and Qaisar. He said that he knew Qaisar and Wazira before he identified them. Their identification is, therefore, of no value and in view of his evidence that he did not identify anybody, his pick ing out some of the accused in the parade is meaningless. The statement made at the time of identification in a parade can only be used to corroborate or contradict a witness. It is a statement without oath and without cross‑examination and does not amount to evidence in the case. Ghulam Hussain (P. W. 22) was a teacher in a primary school and lived in Pirhar Gharbi. Two windows of his house opened towards the courtyard of Wali's house from where he heard a noise at about 6‑30 p. m. He taw, through one of the windows; some persons entering the house of Wali and some standing outside. They were armed with lathis and kulharis He saw Allah Bakhsh going there with a plough rod and the persons standing outside attacking him and Allah Bakhsh defending himself with the rod. Then he saw Qadir Bakhsh going there with a sword and hitting the assailants of his father who beat Qadir Bakhsh also. Nura P. W. came out of the kotha with a gun and fired a shot which killed one of the assailants. The witness recognised Allah Ditto, his son Ahmad and his cousin Ramzi accused. He knew them before. In the identification parade he identified Qaisar and Khuda Bakhsh accused as two of the assailants. After the culprits had gone, the witness went to Wali's kotha and found him dead. In cross‑examination he said that his windows were one foot by nine inches and had wooden bars at a distance of one inch from each other. He also said that in the courtyard of Wali there were two trees. It was argued that on account of the bars in the windows and the trees in the courtyard, which was situated at a distance of 6 or 7 yards from the witness's house, the witness could not have seen what happened there. It was admittedly a moonlit night and I cannot agree that the witness could not have seen anything or identified anybody. The important point in the evidence of Ghulam Husain is that when he went into Wali's kotha he condoled with Wali's son Nura and told him that he had seen the occurrence. In the report made by Nura no mention was made of Ghulam Husain. This gives rise to a strong suspicion that the evidence of Ghulam Hussain was subsequently procured because there was no independent witness in the case. I am, therefore, not inclined to attach much value to the evidence of Ghulam Husain. But the evidence of Nura before the Committing Magistrate appears to me to be substantially correct and so does the evidence in Sessions Court of Allah Bakhsh, According to Allah Bakhsh's evidence, Allah Ditto, Ahmad, Shahru, Ramzan, Kaura and Qaisar are guilty. Nura, in his statement before the Committing Magistrate, also named Allah Ditto, Ahmad, Shahru, Ramzan and Kaura as standing outside the kotha. He named Wazira as one of the persons who had entered the house and identified Qaisar as one of the culprits in the identification parade. Qaisar has a grievous incised wound on his arm which lends support to the evidence of his participation in this fight. Hasan accused admitted that he had gone with Allah Ditto and Amira to the house of Wali and his statement that he had remained in a school until after the fight is apparently incorrect. But he has not been named by Nura in his statement before the Committing Magistrate, nor by Allah Bakhsh or Mst. Jantan. In the identification parade he was identified by Qadir Bakhsh only who has stated in evidence that he identified no one at the spot: There is no evidence against Hasan and be must be acquitted. I consider the case against the remaining seven appellants satisfactorily proved, but in the circumstances of this case I am of the opinion that a sentence of three years' rigorous imprisonment each on the charge under section 325/149 will suffice. I accordingly reduce the sentence of the appellants to three years' rigorous imprisonment each under section 325/149 P. P. C., but do not interfere with the other sentences which will run concurrently with this sentence. Except for the acquittal of Hasan and reduction in the sentences of the others, the appeal is dismissed. A. H. Order accordingly.