P L D 1955 Federal Court 113 (PLP)

MUHAMMAD MUNIR, C. J.‑This is an appeal, by special leave, from an appellate judgment of the Chief Court of Sind dismissing the appeal of Ibrahim Bhak and Kesar Shah appel lants and affirming their convictions under section 302 of the Pakistan Penal Code and section 19 of the Arms Act and their sentence of death under the former and of one years' rigorous imprisonment under the later charge. On the night of 14th February, 1949, six persons were shot dead or otherwise killed in the upper storey of a house known as Mirchumal's "Mari" in village Jhudo within the Taluka of Digri in the Province of Sind. These unfortunate persons were Muzaffar Khan, his brother Muhammad Ali, Mst. Ramzan Bibi and her three young daughters, all from the Punjab. The reports of gunfire were heard by two Chowkidars, one of whom is named Karman, and some Policemen ; and Ghulam Nabi, D. S. P., who was staying in a nearby inspection bungalow, immediately arrived on the scene. From certain letters which were found in the house suspicion at once fell on Ibrahim Bhak and one Bashir, son of Nasrullah, who is absconding. The investigation of the crime was entrusted to Sub‑Inspector Aitzad Ahmad, who in pursuit of the clue furnished by the letters, came to the Punjab. On 28th May, he arrested a man, also named Bashir, who will hereinafter be referred to as the approver, and brought him to Mirpurkhas on 9th June 1949. On 11th, 14th and 21st June the approver pointed out certain places to the police. According to Aitzad Ahmad, the approver took him on 9th June to the house of Ch. Ali Ahmad near the police station and on 11th June to the hotel of Pehlwan in Mirpurkhas. Latter the approver first took him to village Mirwah where he pointed out a hotel and then to Jhudo where he pointed out the hotel of Yar Muhammad, Pathan and the house of Muzaffar Khan, the principal victum of the crime, where the bloody tragedy had been enacted. He also took the investigating officer to a bush near a bridge from where a knife and a bottle smelling of liquor were recovered. From there on 14th June he led the police to village Missan where he pointed out another hotel. The approver was produced on 15th June before a 1st Class Magistrate to whom he made a confession which was recorded under section 164 of the Cr. P. C. On 12th July the District Magistrate tendered pardon to the approver, and he was examined as a witness both before the Committing Magistrate and at the trial before the Court of Session. Kesar Shah appellant was arrested in the Punjab on 8th, June and was brought to Mirpukhas on 9th June. In an identification parade arranged by the police he was picked out by Karman Chaukidar. Ibrahim Bhak also was arrested in a village in the Punjab on 14th March. He was brought to Mirpurkhas on 19th March, and on 25th March he was offered for identification at a test to Karman, Chaukidar, who picked him out of several other persons. After investigation the police put in a final report against the two appellants, the absconding Bashir and one Zafrullah. Hayat Muhammad, Muhammad Ali and Ali Ahmad were summoned as accused by the enquiring Magistrate suo motu on the ground that the murders in question appeared to have been instigated by them. The proceedings of the enquiry were recorded in two separate files, the accused in one case being Ibrahim 8hak and Kesar Shah appellants and Zafarullah and in C the other Hayat Muhammad, Muhammad Ali and Ali Ahmad. Zafrullah was discharged in one and Ali Ahmad in the other case while the remaining four accused were committed to the Court of Session by two separate orders. The learned Sessions Judge, however, charged and tried them together and convicted them all. On appeal, a Division Bench of the Chief Court acquitted Hayat Muhammad and Muhammad Ali, but main tained the convictions and sentences of the appellants. The direct evidence in the case was that of Bashir approver. Karman, another important witness, deposed to having seen the appellants near the scence of the offence just after the crime. Other evidence in corroboration of the approver consisted of the movements of the approver and the two appellants from Hyderabad to Jhudo and back between the 13th and 16th of February. According to the approver, Ibrahim Bhak was a friend of Muzaffar deceased who was a police officer and he used to screen Bhak whenever he was suspected by the police to be concerned in any dacoity or other crime. On being sentenced to imprisonment in a dacoity case Bhak entrusted his wife Ramzan Bibi to Muzaffar who soon developed immoral connection, with her and began to treat her as his on wife Bhak was realeased from prison in October 1948, and he forthwith began to harbour schemes for wreaking vengeance on Muzaffar. Nasrullah Khan, the father of Bashir absconder, was murdered in 1926 by certain persons who are stated to be related to Muzaffar deceased. In the ensuing case the defence of the accused person was arranged by Muzaffar and though they were all convicted and sentenced to a long term of imprisonment they were eventually released by Government on the occasion of the Anniversary of Pakistan in 1948. It is the case of the prosecution that Bashir absconder and his other relations including Hayat Muhammad, Muhammad , Ali, Zafrullah and Ali Ahmad conspired to Murder Muzaffar and with that object hired the services of Ibrahim Bhak appellant a professional criminal, who joined with himself in the venture Kesar Shah appellant and Bashir approver. Muzaffar belonged to the Punjab, but he had settled at Jhudo were he was running a small shop. The conspiracy to murder was hatched in the Punjab and the conspirators are alleged to have assembled at two meetings, one held in Chichawatni and the other in Lahore. At the former meeting, the plan was discus sed among Bhak appellant, Bashir absconder and Ch. Hayat Muhammad, while at the latter the persons who took part in the deliberations were Bhak appellant. Bashir absconder, Hayat Muhammad and Muhammad Ali. The job was entrusted for execution to the approver and the two appellants, but money and fire‑arms, including ammunition and a sten‑gun, were provided by the other conspirators. Mst. Ramzan Bibi was living in those days in the Punjab and the plan decided upon was to murder her and Muzaffar no sooner than she came to Jhudo to live with Muzaffar. Muhammad Ali, the brother of Muzaffar, had brought Mst. Ramzan Bibi to Jhudo only a few days before the occurrence. As soon as her departure from the Punjab was reported, the appellants and the approver came by train to Hyderabad from where they went to Mirpurkhas and in accordance with a pre‑arranged plan called upon Ali Ahmad, a relation of Bashir absconder, who pointed out Muzaffar's house at Jhudo to the intending murderers a few hours before the murders. The three assassins came to Hyderabad on 13th February and stayed for sometime at the Sind Haji Hotel. They all left on the same day for Mirpurkhas, arrived at Jhudo on 14th and committed the crime the same night. How the miscreants gained access to the apartments in which the unsuspecting victims were asleep and the ferocity and determination with which they were all put to death is very graphically described by the approver. Two of the girls murdered were Bhak's own daugh ters from Ramzan Bibi and if the prosecution cases is true, the will of a savage something stronger than an ordinary human impulse or resolve lay behind this indiscriminate carnage. After the commission of the crime the murderers walked to Mirwah and from there, with the assistance of Murad, they found their way to Missan where they stayed at a hotle. At Missan they engaged two camel‑men, Ghulam Hussain and Ali Bakhsh, and reached Railway Station Sultanabad. From there they took a train for Hyderabad where they stayed at a hotel different from the one in which they had put up on 13th February. The evidence in corroboration of the approver confirms not only the general outline of his story but also the statement that both the appellants took part ‑ in the murder. Ahmad Ali deposes that on 13th February both the appel lants who were accompanied by another man put up at the Sind Haji Hotel. The leader of the party gave his name as Din Muhammad, son of Ali Bakhsh and stated that they all bad come from Lahore and intended to‑go to Mirpurkhas the same day: In the records of a hotle at Mirpurkhas there occurs under that very date an entry in which the same description and number of .visitors from Lahore is given. Murad deposes to his having led the appellant's and their third companion from Mirwah to Missan where a party of four persons is entered in the register of a hotel as having stayed on the 15th. Ahmad, an employee of that hotel, though he does not identify anyone, states that the three visitors were brought to the hotel by Murad. Abdur Rahman is a cousin of Murad and identifying both the appellants and the approver in Court he states that these three persons had come to his village Mirofaqir and had inquired whether they could procure the services of a man who would supply them ghee and that he had introduced Murad to them. Ghulam Hussain and Ali Bakhsh are the two camel drivers who identi fied the appellants as the persons for whom they provided camels to take them from Missan to Sultanabad. The several witnesses from the hotels at Hyderabad, Mirpurkhas, Jhudo and Missan were produced by the prosecution to prove the movements of the appellants and the approver on their way to Jhudo before the murders and back to Hyderabad after the commission of the offence. At certain identification tests arranged by the police these witnesses had been required to pick out the persons whom they had mentioned in their statements, and most of them had successfully done so. At the trial, however, some of these witnesses did not identify the appellants and gave one reason or the other for their having pointed out the appellants at the identification tests. Ahmad Ali and Hazurbux, however, stuck to their original statements and identified the appellants in Court as they had previously done during the investigation. The evidence of the former, if believed, would establish that the appellants and the approver were at the Sind Haji Hotel on 13th February where they had booked accommodation under a false description of them selves while the evidence of the latter shows that on the 16th February the same persons had returned to Hyderabad where also they gave false particulars of themselves. Abdur Rahman introduced Murad to the appellants and the approver as the person who could undertake to supply them ghee for purposes of trade and Murad himself accompanied them from Mirwah to Missan. Gulam Hussain and Ali Bakhsh deposed that they supplied two camels to the party and took them from Missan to Sultanabad. Karman's evidence, if believed would show that both the appellants were near the scene of the crime just after the murders in question were committed prima facie, therefore, there was no reason for this Court to interfere with the judgment of the Chief Court. When the petition for special leave to appeal was argued by counsel the main point taken by him related to the admissibility of the confession of Bashir approver which was recorded under section 164 of the Cr. P. C. before the tender of pardon to him. The precise point on which leave was granted will be apparent from the following order :‑ In this case there was an approver whose confession was recorded on the 15th of June 1949, while he had been arrested at the end of May. The learned Judges while observing that 'Such length of time in Police custody creates an appearance that the confession was induced within the meaning of section 24 of the Evidence Act' took the view that that section did not apply as an approver is not an accused person. Mr. Mahmud Ali for the peti tioners contended inter alia that this view of section 24 was not correct. Having regard to this contention as well at the other points raised in this petition we think that this case requires further consideration." In the arguments before us not much was said on the point on which leave was granted, and it appears to us that Mr. Mahmud Ali was labouring under a misapprehension when he raised this point in the petition for special leave to appeal. The learned Judges of Chief Court have nowhere treated the approver's statement under section 164 as relevant or as substantive evidence in the case. That statement is by a person who was not tried as an accused person but who gave evidence as an approver in accordance with a pardon tendered to him by the District Magistrate after that statement had been recorded. After stating their rea sons in detail the learned Judges of the Chief Court have held that the "confession" of the approver is admissible merely for the purpose of corroborating or contradicting the evidence given by him at the trial. Obviously, no objection can possibly be raised by the appellants to the use of this statement for the purpose of contradicting the approver's evidence at the trial. The admissibility of the statement for purposes of corroboration would depend upon whether it was made about the time when the murders took place or before any authority legally competent to investigate the fact. In their scattered references to this statement the learned Judges have nowhere stated that it corroborates the statement of the approver at the trial in any specified particular ; nor does their judgment give the impression that the statement has in fact been used for a general corro borative purpose. I agree with the learned Judges that section 24 has nothing to do with the confession of an approver recorded under section 164 of the Cr. P. C. before a pardon tendered to him. The maker of the confession in such a case, though an accused when he made the confession, is not an accused when the confession is given in evidence but only a witness who gives evidence on oath. The confession is not therefore the statement of a person who is being tried as an accused when the confession is tendered in evidence. The language of section 24 is wholly inapplicable where the statement of an approver recorded as a confession under section 164 of the Cr. P. C. is given in evidence as the previous statement of a witness and not as a relevant fact against its maker. That section obviously applies to confessional statements which are proved at substantive evidence against their makers or against them and other persons who are being jointly tried with them and it is, not at all in point where the maker of the confession it not being tried as an accused but gives evidence on oath under the sanction of section 337 of the Cr. P. C. It is not contended that if the approver's statement in the present case had been recorded under section 164 after pardon had been tendered to him, section 24 would have been applicable to it, and it does not, in my opinion, make the slight‑.st differ ence from the point of view of admissibility whether such statement is recorded before or after the tender of pardon. If no pardon has been tendered when the approver makes his statement under section 164, the statement can only be recorded as a confession subject to the restrictions of that section, but where such pardon has been previously tendered and accepted, the statement has to be recorded as that of a witness, the former being without and the latter being on oath. I do not therefore think that the treatment by thel learned Judges of the confession of Bashir approver in any way affects their findings in the case. Admittedly, that statement has not been used as evidence against the appellants; nor can it be said to have been actually used for the purpose of corroborating the approver's evidence at the trial though such use according to the learned Judges, was permissible in law. I may now deal with the other contentions which have been urged by Mr. Mahmud Ali on behalf of the appellants to justify our interference. The first of these is that the joint trial of the two sets of accused persons was not justified under the Cr. P. C. and that the course adopted of holding a joint trial was illegal. I have pointed out earlier that while Ibrahim Bhak and Kesar Shah appellants were committed by one order. Hayat Muhammad and Muhammad Ali were committed by a different order. The charge as framed by the Committing Magistrate against the two sets of accused persons has not been pointed, but the charge on which they were tried and which was framed by the learned Sessions Judge was to the following effect: First, that the two appellants on the night of 14th/1 5th February together with the approver Bashir at the instigation of accused Hayat Muhammad and Muhammad Ali committed murder by inten tionally causing the deaths of the six persons and that at the time of the commission of that offence they were both armed with revolvers and pistols for which they had no licence, which act of theirs was punishable under section 19 of the Pakistan Arms Act. The charge against Hayat Muhammad and Muhammad Ali was that together with Bashir absconder they abetted the commission of the offence of murder by the two appellants and Bashir approver and that they were therefore liable for the offence of murder by reason of sections 109 and 120‑B of the P. P. C. The point sought to be made by Mr. Mahmud Ali is that where two persons are committed to the Court of Session by two different orders and under two separate charges they cannot be charged and tried together by the Court of Session. No authority for this proposition has been cited and the contention is clearly contrary to the terms of section 239 of the Cr. P. C. which provides that persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence .may be charged and tried together. According to the prosecution the offence of murder that was committed by the approver and the two appellants had been instigated by Hayat Muhammad, Muhammad Ali and others. That being so, the case clearly fell under clause (b) of section 239 of the Code of Criminal Procedure and the joint D trial was legal. Section 226 of the Code of Criminal Procedure which provides that when a person is committed for trial without a charge or with an imperfect or erroneous charge the Court may frame a charge or add to or otherwise alter the charge is irrelevant to the present case, because what the learned Sessions Judge did was to have combined the two separate charges against the two sets of accused persons in a single charge‑sheet and there is nothing to show that any one of these sets was committed without a charge or under an imperfect or erroneous charge. I, therefore, see no substance in this argument. The second objection raised by Mr. Mahmud Ali is directed against the admissibility of the deposition of the prosecution witness Karman. This witness, who is a Chowki dar, claims to have come to the scene of the offence immediately on hearing the gun reports and to have seen the two appellants going away from the scene of the murders. He was examined by the Committing Magistrate before whom he made a detailed statement but he could not be examined at the trial because the serving officer's report on the summons requiring him to appear and give evidence in the Court of Session was that the witness was dead. His statement at the enquiry was therefore transferred to the record of the trial under section 33 of the Evidence Act, Mr. Mahmud Ali contends that the death of Karman was not proved, and that therefore his statement was wrongly transferred to the record of the Sessions Judge. A reference to the record would, however, show that in proof of the death of this witness one Muhammad Ali was examined as the sixty‑sixth witness for the prosecution. His evidence was that he had been given summons to serve Karman, that he had searched for him at Badin, Talhar, Machuri and Jhudo, that it had been reported to him that the witness had died, and that in proof of the witness's death he had recorded the statements of several persons which he had attached to the summons. On this the Public Prosecutor asked for the admission of the statement of Karman under section 33 of the Evidence Act, but it was objected to by the defence. The learned Sessions Judge recorded that on the evidence he was satisfied that Karman was dead and put off the case to 10th March for hearing and deciding the defence objection. On the 10th March evidence relating to the death of another witness Manik was recorded and a request was made by the Public Prosecutor to transfer his statement also under section 33 of the ‑ Evidence Act. Thereupon the learned Sessions Judge recorded the following order :‑ "I am satisfied that P. W. Manik is dead. But defence advocates object that he was not examined in presence of all accused,, and state that his evidence be admitted subject to this objection which should be decided at the time of arguments. Statements of P. W. Manik and Karman are admitted subject to this objection." It is quite clear from this order that the objection of the defence advocates was not that the death of Karman had not been proved but that his statement before the Committing . Magistrate which had not been recorded in the presence of Hayat Muhammad and Muhammad Ali who were committed by a separate order was not admissible against them. When we heard the appeal it was represented to us that Karman was still alive. On this we issued a summons requiring him to appear before us and delivered the summons to the appellants' agent for service through the District Magistrate. Karman, however, was not found and while some of the witnesses whom the serving officer examined stated that he was dead, others alleged that he had gone over to India and that his whereabouts were not known. Whether at the time his statement was transferred to the Sessions record Karman was dead or had gone over to India section. 33 of the Evidence Act was applicable to the case and his statement was therefore rightly transferred. Another grievance of Mr. Mahmud Ali is that the circumstantial evidence which was held by the learned Judges of the Chief Court to be corroborative of the statement of the approver was not put to the appellants and that this irregularity had the effect of precluding the Court from taking that evidence into consideration against the appellants. The evidence referred to consists of the movements of the two appellants from Hyderabad to Jhudo on the 13th and 14th February, and from Jhudo to Hyderabad on the 15th and 16th of February. It is true that this evidence was not specifically put to the appellants as required by section 342 of the Code of Criminal Procedure. The two questions put to Ibrahim Bhak by the Committing Magistrate were whether he had anything to say after having heard the prosecution evidence, and whether he could explain why the witnesses had deposed against him. At the trial the learned Sessions Judge read out to this appellant the statement that he had made before the Committing Magistrate and asked him whether it was correctly recorded and whether he had to say anything after hearing the prosecution evidence. The substance of the defence set up by this appellant was that the case against him was due to the machinations of one Ghulam Nabi, a Sub- Inspector in the Punjab Police, who was a cousin of Muhammad Ashraf and that the witnesses had given evidence against him at the instance of that Muhammad Ashraf. The questions put to Kiser Shah appellant were similar and his reply was that he had been implicated in the case by two officers of the Punjab Police, Inspector Jalal Shah and Sub‑Inspector Frazil Shah ; that he was innocent and had nothing further to add and that the approver had given false evidence against him at the instance of the Sind and Punjab Police. He proceeded to add that his first visit to Sindh was when he was brought by the Police under arrest to that Province. So far, therefore, as this appellant is concerned, his case being that he had never come to Sind before his arrest, even if he had been specifically questioned about the evidence relating to his movements from Hyderabad to Jhudo and back from 13th to 16th February, his reply would have been that the evidence was false and not that the, evidence was true but that his movements on the days in question were with any innocent purpose. Thus no prejudice can be said to have been caused to him even if it be held that the provisions of section 342 were not complied with as fully as they should have been. In the same way, it is not the appellant Bhak's case that he did stay at the several hotels and was seen in the company of the other appellant and the approver on his way from Hyderabad to Jhudo and back but that he was moving about in these localities with an innocent object. That being; so, no prejudice can be said to have been caused to him the omission to question him about this circumstantial evidence and no suggestion of any possible failure of justice has been made from the Bar. It cannot, therefore, be field that the irregularity alleged has had any effect on the result of the trial. The evidence of Ghulam Hussain and Ali Bux, the two camel‑men who took the appellants and the approver from Missan to Railway Station Sultanabad, has been assaulted on the ground that their statements at the trial were the result of undue pressure. This objection, in my opinion, is sound and must previal. These two witnesses had refused to support the prosecution case when they were first examined by the Committing Magistrate. Earlier their statements had also been recorded by a Magistrate during the investigation under section 164, Cr. P. C., 'and in those statements they had both supported the prosecution and alleged that three Punjabis and a Sindi had engaged their camels on the relevant date, and Ghulam Hussain had further stated that at a subsequent identification test he had identified bank appellant as one of these three Punjabis, while Ali Bux had added that at the identification test he had picked out both the appellants as two of the three Punjabis who had engaged his camel and traveled with him to Sultanabad. When these witnesses were called for the prosecution before the Committing Magistrate, Ghulam Hussain stated that he did not know the two appellants and the approver, that he had never taken anyone of them from Missan to Bulgar, and that he had not picked out any of them at any identification test In the same manner, Ali Bux stated that he had not picked out either of the appellants at any identification test, and that he could not say whether they were among the four persons who had hired the camels. After this the learned Public Prosecutor made a request to the Committing Magistrate which, to say the least, was the most remarkable that a Public Prosecutor could have made. Alleging that the witnesses had given evidence contrary to their statements under section 164 of the Cr. P. C., and had thus been guilty of perjury, he intimated that the Crown intended to proceed against them and made a request to the Magistrate that the witnesses may be detained, or bail may be taken from them to secure their attendance in Court if it became necessary. On this, the Court ordered that the witnesses should furnish security sum of Rs. 500 each and attend the Court on the following Since the witnesses could not produce sureties, they sent to jail where they remained until the following day when they were admitted to bail. A few days later, both these witnesses made an application asking to be forgiven, and then made their statements in conformity with their section 164 statements. Neither the learned Public Prosecutor nor the learned Magistrate made a reference to the provision ,, law under which this action was taken, but before us Section 476 of the Cr. P. C., is relied on as an authority for A perusal of that section would at once show that the course adopted by the learned Magistrate was wholly illegal, because it is only after a finding that it is expedient in the interest of justice that an enquiry should be made into an often referred to in section 195, subsection (1), clause (b) or (c), has been recorded and a complaint made by the presiding officer of the Court and forwarded to a Magistrate, that security for the appearance of the accused before that Magistrate can be ordered or the person accused taken in custody At the time when the request to arrest or take security from these witnesses was made, neither any such finding, had been recorded, nor any complaint made. The action taken, therefore, was entirely illegal, we cannot but hold that this unauthorised action was responsible for the subsequent statements that these witnesses made at the enquiry and later at the trial. Their evidence will, therefore, have to be excluded in determining this appeal. I now come to the last and the most important question in the case, and that is Mr. Mahmud Ali's objection to the admissibility of the evidence relating to the pointing out of the places by the approver and the picking out of the appellants by the prosecution witnesses at the identification tests arranged by the police. As regards the pointing out of laces by the approver is concerned, it is argued that no discovery was made within the meaning of section 27 of the Evidence Act by the mere fact of pointing out, and that even f it can be said that there was a discovery, the pointing out was not by a person who was an accused. The attack on admissibility is carried further by invoking section 162 of the Cr. P. C., and contending that the evidence of pointing out is evidence of statements during investigation to police officers. Which can not be admitted under that section. In my opinion, the reference to section 27 is not relevant because that section only relates to the discovery of a fact which has been made in consequence of any information given by an accused person himself. In the present case, the information was nor given by either of the appellants and therefore section 27 does not govern the case. Nor can I accept the contention that in determining the relevancy of the information under that section regard is to be had to the position of the person making the statement at the time the information is given in evidence and not at the time the discovery is made. The section clearly contemplates cases where at the time of the making of the discovery the person giving the information is a person, accused of an offence and in custody and whose information or conduct is sought to be proved against him at I the trial. Since the approver was not being tried when the evidence of pointing out was given, section 27 does not govern the situation and such information could not be and has not been taken into consideration against the appellants by the Chief Court. The question, however, is whether the infor mation given by the approver or his conduct in not the several places is admissible in order to corroborate his own evidence, and the reply to this question must depend upon the view that is taken of the scope of section 162 of the Cr. P. C. That section provides that subject to the provisions of section 27 and 32 (1) of the Evidence Act "No statement made by any person to a Police Officer in the course of an investigation under Chapter XIV of the Code shall, if reduced in 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 enquiry or trial in respect of any offence under investigation at the time when such statement was made." The point sought to be made is that by giving evidence of the fact that during the investigation the approver took the police to several places where before or after the commission of the offence he is alleged to have been seen by some prosecution witnesses, the prosecution are proving a statement by him that he was at those places on those dates. The position is similar to the one that arose before the Privy Council in Ghulam Hussain v. The King P L D 1949 P C 326. where the prosecution had proved that a girl on whom rape had been committed in a certain house had during the investigation led the investigating officer to that house and pointed to him one of the accused persons. On one objection being taken to the admissibility of that evidence Sir Lione Leach observed:‑ "Subject to the provisions of sections 27 and 32 (1) of the Indian Evidence Act, section 162 of the Code of Criminal Procedure prohibits the use of a statement made to a police officer in the course of an investigation under Chapter XIV of that Code at any inquiry or trial in respect of the offence which was under investigation. The argument advanced here was that statements made by Jasoda to the police officer who accompanied her to the house of the appellant on the day after the crime fell within the prohibition. Con sequently, it was said that it was not open to Jasoda to state in evidence that she had pointed out to the investigat ing officer the appellant as the person who had raped her or his house as the place in which the offence had been commit ted. Likewise it was not open to the police officer to say that Jasoda had pointed out to him the appellant as the person who had outraged her or his house as scene of the crime. Section 162 is widely drawn, but how far the Legislature intended it to have operation may be open to argument. For instance, there is a conflict of judicial opinion in India on the question whether the section excludes evidence of identification, which has taken place at an identification parade held in the presence of a police officer. In a suitable case it may be necessary to decide the exact scope of section 162, but a decision of this nature is not called for here, because if all the statements now questioned by reason of section 162 are excluded there is still ample evidence to which no objection can be taken. The matter appeared to present some difficulty and the Privy Council commented on the widely drawn terms of section 162 and the limits within which the Legislature intended that section to operate. But the Board did not decide the question and determined the appeal on the other evidence. Section 162 of the Cr. P. C., has to be read as referring back to the immediately preceding section which empowers a police officer to examine any person supposed to be acquainted with the facts and circumstances of the case, and to reduce into writing any statement made by him in the course of such examination. What happens where the test of pointing out of places is adopted by the police is that a statement of the witness or the accused (section 162 applies to both) is first taken and the person making the statement is then required to take the questioning police officer to the places mentioned by him in his statement with a view to verifying whether that person does or does not know the places which he has referred to in his examination. What is intended to be proved at the M subsequent trial, therefore, is that the person in question made a statement mentioning certain places, and that subse quently on his being so required, he took the police officer to those places where certain incidents having reference to the crime in question are alleged to have taken place. This evidence is given in order to satisfy the Court that the person making the statement had knowledge of the places. If the person making the statement is an accused person and the pointing out amounts to the discovery of a relevant fact, section 27 of the Evidence Act is immediately attracted to the case, and the information given in words or involved in the act of pointing out becomes clearly admissible. In a case like the present, however, where the pointing out is not by an accused person, and the matter is beyond the scope of section 27, such evidence is admitted merely to confirm the evidence of the person who pointed out the places. Hence, if the pointing out amounts to any such statement as is included within the scope of section 162, the evidence as to it would be inadmissible, because it has been ruled by almost all the High Courts in the Indo‑Pakistan sub‑continent that the prosecution cannot corroborate a witness by proof of a statement made by him to a police officer in the course of police investigation. It seems to me, however, that what section 162 of the Code excludes is a statement, and that proof of the manner in which a witness's knowledge of certain 0 places was tested during the investigation does no more amount to proof of a statement made in the course of police investigation .than the result of a relevant experiment perform ed by the investigating officer. It is true that the act of pointing out acquires significance only if it be considered in reference to the earlier statement made by the witness to the police, but notwithstanding this what is used is at the trial is not a statement but merely the fact that the witness demonstrated to the police his knowledge of certain localities where some incident or incidents are alleged or proved to have taken place That being the case, section 162 of the Code is not contravened by the admission of such evidence, though where the investigat ing officer gives no explanation of the omission to have the p places pointed out to or in the presence of a Magistrate, no much weight would ordinarily be attached by the Court to such evidence unless it be clear that, but for such action on then part of the person concerned the investigating officer could no It have acquired knowledge of those places. In the same way, when a witness who has given details of the commission of a crime and of the persons engaged in committing it, the act of the police officer in subsequently asking the witness to point out these persons from amongst others who are mixed up with them amounts to a desire on the part of such police officer to test the power of observation of the witness, and when subsequently evidence of the result of such test is given, the object is not to prove or use statement made to the police in the course of the investigation but to show that the person who was previously unknown to the witness was rightly pointed out by the witness at a test, and such evidence may be rightly given under section 9 of the Evidence Act in proof of the identity of the accused as the doer of a certain act, without contravening the provisions of section 162 of the Code of Criminal Procedure. I do not think that section of the Code is a "specific provision to the contrary" within the meaning of section 1, subsection (2) of that Code so as to exclude such evidence of identity. I am therefore, of the opinion that the evidence of pointing out of different places by the approver and of the several identifica tion tests was rightly admitted in this case. But even if such evidence be excluded, the result of this appeal is not affected thereby. The exclusion of the evidence of pointing out by the approver merely affects his evidence against himself, while in the case of the witnesses who picked out or failed to pick out the appellants at the identification tests the evidence was produced by the prosecution either to corroborate or to contradict the testimony of those witnesses at the trial. The defence cannot object to the latter course, and as regards the former even if the corroboration feature of the evidence be eliminated, the evidence of the witnesses will have to be judged on its own merits, because in such cases the real evidence that implicates an accused person is the statement of the witness made at the trial that he had seen a particular accused committing the offence. There is no proof that anyone of the witnesses on whose evidence we are asked by the Crown to uphold the convictions has any motive in giving evidence against persons who are complete strangers to him, or that he has been coerced or cajoled by the police to make a particular statement in Court. On the contrary, there is very indication that considerable influence must have been brought to bear on several witnesses who had supported the prosecution case during the investigation, with a view to their making at the trial statement favourable to the accused persons, because in a desparate effort to reconcile their previous statements with their evidence at the trial these witnesses have but forward reasons which are most fantastic and ridiculous. I am satisfied that the evidence of Ahmad Ali, who saw both the appellants and the approver putting up at the Sind Haji Hotel at Hyderabad on 13th February under assumed names, the entry to the hotel at Mirpurkhas Hotel on the same day that three persons answering to the description as had earlier been recorded at the Surd Haji Hotel came to stay there, and the evidence of Karman who immediately after the murders saw both the appellants emerge from the street in which the house where the murders were committed is situate, of Murad who joined the appellants and the approver on their return journey and who was throughout with them from Mirwah to Hayderabad, of Abdur Rahman who introduced Murad to the appellants and the approver as the person who would act as their agent in the supply of ghee, and of Hazur Bux, who saw them at the Hyderabad Hotel on 16th February, is quite sufficient to produce the conviction that the approver is telling the truth when he says that he and the appellants had come from the Punjab to commit the murders charged and that they all three had committed those murders. I would, therefore, dismiss this appeal. A. S. M. AKRAM, J.‑I agree. SHAHABUDDIN, J.‑I agree that the appeal be dismissed. A. H. Appeal dismissed.