P L D 1975 Peshawar 89 (PLP)

SHAH ZAMAN BABAR, J.

Mohammad Sadiq aged 35 years, son of Abdur Rahman, resident of village Mian Isa Police Station Batagram, Tehsil Char sadda, District Peshawar was challaned to Court under section 302(34, P. P. C on the allegations that on 22-12-1972 at 8 a.m. he alongwith three unknown persons in furtherance of their common intention committed the murder of Saifur Rahim of the same village by firing at him. At the conclusion of the commitment proceedings as per order dated 27-11-1973, Mohammad Sadiq accused was committed to the Court of Session to stand his trial on the charge under section 302/34, P.P.C. but the commitment Court framed charge under section 302, P.P.C. only Muhammad Sadiq was tried by Abdul Waheed Seth, Additional Session Judge, Peshawar on a charge under section 302, P.P.C. and convicted for the same offence by judgment dated 8-1-1974. The convict was sentenced to death subject to the confirmation by the Peshawar High Court Peshawar. Mohammad Sadiq has appealed challenging his conviction and sentence. Proceedings for the confirmation of his death sentence under section 374, Cr. P. C. are also before us. We propose to dispose of the appeal as well as the murder reference by this judgment.

2. The parties are residents of village Mian Isa in the jurisdiction of Police Station Batagram, Tehsil Charsadda Saifur Rahim (deceased) was first cousin of Mohammad Sadiq appellant. The wife of the appellant is the step sister of Saifur Rabim (deceased). Saifur Rahim (deceased) had a son named Amir Nawaz. Mst. Shamshad Begum (P.W. 7) is the daughter of Saifur Rahim. Mohammad Sadiq appellant was an Assistant Sub-Inspector of Police attached to Police Station Kabli Peshawar City, during the days of occurrence. Mohammad Sadiq has three more brothers named Muhammad Yaqub, Akhtar Munir and Obedur Rahman alias Obedurai. In the year 1971, Obedur Rahman sought the hand of Mst. Shamshad Begum but this proposal was turned down by Saifur Rahim and his son Amir Nawaz. Amir Nawaz was murdered on the 17th of July 1971 (as per judgment of the High Court in Criminal Appeal No. 24/73 decided on 27-9-73). Mohammad Yaqub, Akhtar Munir and Obedur Rahman were charged for the murder of Amir Nawaz. Obedur Rahman absconded in the case and be is an outlaw till today. Akhtar Munir and Mohammad Yaqub were tried and sentenced to death under section 302/34 P. P. C. on 30-1-1973. Both Akhtar Munir and Mohammad Yaqub were acquitted in appeal by the High Court on 27-9-1973. It is also in evidence that Saifur Rahim deceased and Tajuddin (P. W. not examined) in this case had been charged for the murder of Fazal Mohammad Barbar and both Saifur Rahim and Tajuddin were on bail in that case during the days of the present occurrence. During the pendency of the case of murder of Amir Nawaz against Akbtar Munir and Mohammad Yaqub in the Court of Session, Saifur Rahim was killed on 22-12-1972.

3. The prosecution case is that P.W. Mst. Shamshad Begum aged about 16-17 years daughter of Saifur Rahim was ailing since about four-five days prior to the present occurrence and she used to go daily to Shabqadar for treatment by a lady doctor. It is alleged that the appellant was on leave during the days of occurrence. On 22-12-1972 at about 8 a.m. in the morning, Mst. Shamshad Begum P. W. 7 was going to Shabqadar from her village Mian Isa on foot. Her father Saifur Rahim, C. W. 1, Mir Alam and Tajuddin (an abandoned P. W.) accompanied the ailing lady for going to Shabqadar. When the party passed by village Miro Kili, it is alleged, that Mohammad Sadiq appellant alongwith three unknown persons emerged from the sugarcane fields and went into a ploughed field. Mohammad Sadiq fired a shot at Saifur Rahim. Saifur Rahim was fatally hit and he fell down. The other three assailants fired in the air towards Shamshad Begum, Mir Alam and Tajuddin. The appellant and his companion assailants ran away. Mst. Shamshad Begum found her father Saifur Rahim dead. Mst. Shamshad Begum and Mir Alam went to Shabqadar for lodging a report. P. W. Jahandad Khan S.

1. Incharge Police Post Shabqadar alongwith the police party was on gasht when at about 9 a.m. (it appears that 08.00 hours in the state -Anent of Jahandad Khan S. 1. has been recorded by mistake) Mst. Shamshad Begum lodged the report Exh. P. A/1 with the S. I. This report was recorded in the presence of Mir Alam. The F. I. R. lodged by Mst. Shamshad Begum is rendered into English as under:-- "Today in the morning I alongwith my father Saifur Rahim and Mir Alam my relative residents of Mata Mughal Khel were coming to Shabqadar in connection with treatment. When we reached near Miro Kili on the pacca road, then from the sugarcane crop on the eastern side of the road Mohammad Sadiq son of Abdur Rahman resident of Mian Isa and three others with whose names and appearance I am not acquainted, suddenly came out. As soon as they came out from the sugarcane crop, Sadiq fired one shot at my father Saifur Rahim with which my father was hit and died at the spot. The other persons had fired shots at me and my companion Mir Alam but we were not hit. All the four accused ran away armed. The motive is that about more than a year ago my brother Amir Nawaz Khan was killed by this party. Out of the party Munir, Yaqub brothers of Sadiq are in Jail while Bedul brother of Sadiq is a proclaimed offender. The occurrence of murder has been witnessed by Mir Alam Khan and Tajuddin when the latter also had arrived at the spot. I charge Sadiq and the other three unknown persons for the murder of my father." This report (Exh. P. A/ 1) was recorded by P. W. 9 Jahandad Khan S. I. and sent to Police Station Batagram for registration of a case. At the Police Station P. W. Aftab Ahmad Noor. A. S. I. registered a case under sec tion 302/34, P. P. C. by incorporating the Morasila Exh. P. A./1.

4. S. I. Jahandad Khan went to the spot but the dead body of Saifur Rahim bad been removed to village Mian Isa. At village Mian Isa the S. I. prepared the injury-sheet and inquest report of Saidur Rahim deceased at his house. The dead body was sent to mortuary at Shabqadar. The S. I then returned to the venue occurrence and prepared the site plan Exh. P.C. at the instance of P. W. Shamshad Begum and Mir Alam. It may be worth noting that on the eastern side of the spot besides the road sugarcane crop of 8 feet height was standing on the day of occurrence. Point A in the site plan indicates the place where Saifur Rahim was hit and fell down. Blood was picked up from here. Point B represents the place where Saifur Rahim was hit and had fallen down at Point A. Distance between Points A and B was three to four feet. Point C denotes the place from where Sadiq appellant allegedly fired. Distance between Points A and C was 26 feet while distance between Points B and C was 30 feet. Point D denotes the place where Mst. Shamshad Begum P. W. was coming on the side of the road and witnessed the occurrence. At Point E, the presence of Mir Alam was noted and at Point F the presence of Tajuddin has been shown. At Point G the three unknown accused were standing The site of occurrence is on the pacca road between village Mian Isa and Dheri Shabqadar. The road is 15 feet wide. On both sides of the road, there existed water channels and sugarcane crops. Saifur Rahim was allegedly coming on the eastern side of the road. Distance between Mst. Shamshad Begum and Saifur Rahim was 12 feet. Mir Alam was coming four feet behind Saifur Rahim. It is noteworthy that the arrow mark shown on the site plan indicates that the deceased and the witnesses were coming from the northern direction towards the southern direction. This fact is also admitted by P. W. Jahandad Khan S. I. in cross- examination, stating that the deceased anal the P. Ws. were proceeding from worth to south at the time of occurrence and the sugar cane crop on either side of the road was 8 feet high. The S. I. searched for the empties on the spot but could not find any at the spot and around it. Mohammad Sadiq, appellant was arrested by P. W. 5 A. S. I. Ajmal Khan of P. S. Kabli (A Division Peshawar) on 22-12-1972 at 21-20 hours under the orders of the Police Inspector Incharge Circle Batagram. The arrest of the appellant has been entered into daily diary of Police Station Kabli at S. No. 21 dated 22-12-72. The orders for arrest of the appellant were received by P. W. Ajmal Khan from the Inspector Abdur Rashid at 20-15 hours, on 22-12-1972.

5. Doctor Iftikhar Ali Khilji who was Incharge Civil Hospital Shab qadar during the days of occurrence, performed the post-mortem examination on the dead body of Saifur Rahim on 22-12-1972 at 11 a.m. in Civil Hospital, Shabqadar and found the following:- (1) A fire-arm entry wound on right side of lower chest just above the 10th rib in the middle x " x '. (2) Fire-arm exit wound on right side middle of back over the 7th and 8th ribs measuring 1' x 1'. (3) Lacerated rub mark on the back of left hand due to fall, Internal examination:

Scalp, skull and vertebrae were healthy Mem brane, brain, spinal cord healthy. Thorax.

Walls injured, 7th and 8th (right side as recorded in P. M report) ribs fractured. Pleaurae.

Right side injured. Right lung injured. Blood vessel of left lung injured. Abdomen healthy. Remarks by Medical Officer.

Died due to fire-arm injury, causing severe shock, to chest and haemorrhage. Probable time that elapsed between injury and death almost instantaneous Between death and post mortem about within 12 hours. The clothing of the deceased i.e. shirt, shalwar, jacket which had corre sponding holes and were blood-stained were handed over by the doctor to F. C. Arjali. During the commitment proceedings as well as at the trial of the appellant, doctor Iftikhar Ali Khilji was not available. Doctor Walayat Sher, Medical Officer Incharge Civil Hospital, Shabqadar, who was acquainted with the handwriting of Doctor Iftikhar Ali Khilji, came into the witness-box and identified the handwriting of Doctor Iftikhar Ali Khilji on the post-mortem report Exh. P. Z. Doctor Walayat Sher when cross-examined stated that the deceased had received the injury on the right side on the body and so the exit wound exists on the right side.

6. Before the commitment Court the appellant Mohammad Sadiq had denied the charge of murder of Saifur Rahim and pleaded innocence and false charge because at the time of the occurrence he was present in Police Station Kabli, Peshawar and was on duty. At the commencement of the trial also the appellant had pleaded not guilty to the charge framed against him and claimed trial. At the trial, he admitted that Amir Nawaz brother of P. W. Shamshad Begum was murdered for which his brother Obedur Rahim has been falsely charged. When questioned whether be was on leave from 12-12-1972 while posted at Police Station Kabli, Peshawar and vide S. No. 50, of the daily diary he stated that he had cut short his leave and reported to the Police Station before availing leave any further. He stated:-- "A.-During my leave I had been living at Peshawar in a Government Quarter provided to me by my department and during the said stay I had been visiting my Police Station off and on. I also visited the Sessions Court as a murder case was pending against my brothers. A date was fixed by the Court of Session in the murder case against my brothers and I had stated this factum to the S. H. O. of my Police Station by adding that the date has been fixed in accordance with my wishes, regarding the murder case against my brother. Abdul Jalil P. W. present at the moment asked me to report for duty as date according to my wishes has been fixed in the murder case against my brothers and that heavy work was pending in the Police Station. On his request therefore I reported for duty earlier." He denied the charge of murder of Saifur Rahim and stated that P. W. Shamshad Begum had deposed against him because he was pursuing the murder case against his brothers which annoyed Mst. Shamshad Begum daughter of the deceased and therefore she falsely deposed against him. He produced no evidence in defence. Before the commitment Court, P. Ws. Mst. Shamshad Begum, Mir Alam and Tajuddin were examined as prosecution witnesses. Tajuddin had denied to have seen the occurrence of murder of Saifur Rahim. P. W. Mir Alam had resiled from his statement recorded under section 164, Cr. P. C. and he was therefore declared hostile and allowed to be cross-examined by the prosecuting Sub-Inspector. At the trial of the appellant before the Court of Sessions, P. Ws. Mir Alam and Tajuddin were abandoned by the special P. P. for the reason that they had been won over. The learned trial Judge examined Mir Alam only as a Court witness.

7. The ocular version of the prosecution evidence is furnished by P. W. 7 Mst. Shamshad Begum and C. W. 1 Mir Alam. P. W. Shamshad Begum is the daughter of the deceased. She deposed that on the day of occurrence at about 8 a.m. her father Saifur Rahim (deceased) and P. Ws. Mir Alam and Tajuddin were accompanying her to Shabqadar from their village Mian Isa for treatment by a lady doctor. They were going on foot. When they passed village Miro Kili, Sadiq appellant accompanied by three others emerged from sugarcane field, went into a ploughed field and from there, Mohammad Sadiq appellant fired a shot at her father and killed him. The other three companions of Sadiq fired in the air towards the witnesses. All the four accused then ran away. She and Mir Alam went to Shabqadar for lodging a report leaving the dead body on the spot under the care of two unknown persons. She lodged the report at Shabqadar Adda with the S. H. O. She also deposed that Sadiq appellant is in police service and was on leave during the days of occurrence and was present in the village. In her cross-examination, she stated that she used to go daily for treatment to Shabqadar since four-five days consecutively before the occurrence. Sometime they had gone on foot and sometime in a tonga to Shabqadar. She stated that her father was armed with Topak but she could not distinguish between a rifle and a shot-gun. She was confronted with her F. I. R. wherein she had omitted to state that she left her father in the care of two unknown persons. She admitted to have men tioned in her report that Sadiq accused alongwith three other companions had emerged from sugarcane field and came to the ploughed field but in the F. I. R. the fact of the emerging of the four accused out of the sugarcane crop field to the ploughed field is not mentioned. She also admitted to have mentioned in her report that the companions of the appellant had fired in the air, although in the F. I. R. it is mentioned that the other persons fired at her and Mir Alam and they were not hit. She was confronted with her state ment before the committing Magistrate. She stated that it was incorrectly recorded in that statement that her father was fired from his left side. It is noteworthy that in her F. I. R. also she has stated that Sadiq and his com panions had emerged from sugarcane crop standing on the eastern side and the road. She admitted that the place of occurrence is at a distance of one furlong from the habitation of the village where she was residing, and that the spot of occurrence is nearer to Mero Kili.

8. C. W. Mir Alam stated that on the day of occurrence after morning tea, he and Saifur Rahim deceased had started for village Shabqadar at about 8 or 8-15 a.m. When they reached near Mero Kili after covering a distance of about a furlong at a place where there were sugarcane crops on both sides of the road, from eastern side shots were fired at them from the sugarcane crops. The deceased ran away while the witness stood on the road, and the deceased had fallen down. He added that P. W. Shamshad and her mother came to the spot and then they and the witness went to Shabqadar and lodged the report. Mir Alam was cross-examined by a special P. P. He stated in cross-examination that Saifur Rahim deceased was husband of his aunt. The witness belongs to village Matta and the deceased had brought him to his village Mian Isa a month before the occur rence in order to act as his bodyguard. Tajuddin P. W. was also his bodyguard. The witness and Tajuddin always accompanied the deceased whenever the deceased used to go from the village. The deceased, the witness and Tajuddin always went out armed. On the day of occurrence, the witness had 5 shots-licensed Topak while Saifur Rahim had a D. B. shot-gun. The witness added that when Mst. Shamshad Begum and her mother came to the spot, they on the spot asked the witness to give evidence against Sadiq appellant, but the witness was not prepared to give false evidence against Mohammad Sadiq appellant. The witness admitted that Mst. Shamshad Begum lodged the report to the S. H. O. within his hearing and she charged Mohammad Sadiq appellant for the murder of her father. The witness was confronted with his statement recorded under section 164, Cr. P. C. and he denied to have stated therein that on the day of occurrence he alongwith Saifur Rahim and his daughter Shamshad Begum were going to Shabqadar for the treatment of Mst. Shamsbad Begum.

9. P. W. 5 Ajmal Khan A. S. I. who had arrested the accused at Police Station, Kabli stated in cross-examination:-- "Accused Muhammad Sadiq was present in the Police Station, on 22-12-72 at 8 a.m. I have seen the Daily Diary at S. No. 28, dated 22-12-72 wherein presence of the accused is mentioned. I see the Daily Diary at Serial No. 28, dated 22-12-72 recorded at 8 a.m. wherein the presence of the accused Muhammad Sadiq is mentioned alongwith other officers. Exh. P. C. W/2, is the correct copy. I see the Daily Diary at Serial No. 50, dated 21-12-72 wherein the arrival of Muhammad Sadiq from leave has been recorded. Exh. C. W./1 is the correct copy. I see the Daily Diary at Serial No. 52, dated 21-12-72, wherein accused Muhammad Sadiq is shown to have been sent on gasht duty of the Illaqa at 2-50 hours on 21-12-72. Correct entry of the said report is given in Exh. C. W./1. At Serial No. 54, dated 21-12-72, accused Muhammad Sadiq is shown to have returned from gasht at 16-45. Exh. C. W./ 1 reflects also the copy of the said entry. Entry at Serial Nos. 50, 52 and 54 were made in the handwriting of the accused Muhammad Sadiq. Entry No. 28, dated 22-12-72, copy Exh. C. W./2 is the handwriting of Shah Nawaz Maddad Muharrir." The learned trial Judge, after closing of the cross-examination has given the following Note:-- "Note.

At this stage it came to the notice of the Court when it was pointed out on behalf of the prosecution that the Daily Diary contain ing entries from Serial No. 16, dated 22-12-72 to 56 dated 23-12-72, were on different paper than the paper of the original roznamcha, so, in the original of Exh. C. W./

1. On this observation learned counsel appearing on behalf of the accused brought to the notice of the Court other sheets apparently different from the original Daily Diary sheets. In the circumstances therefore Daily Diary is retained." The learned trial Judge while recording conviction of the appellant observed in para. 7 of judgment that Mst. Shamshad Begum admittedly is the daughter of the deceased who was a natural witness and who saw the occurrence and her statement and deposition needed corroboration by independent evidence for which she named Mir Alam and Tajuddin. Mir Alam was examined by the Magistrate under section 164, Cr. P. C. on 1-1-73 wherein he had supported what was alleged by Mst. Shamshad Begum P. W. 7 but when fir slam appeared before the committing Magistrate, he omitted to mention the names of Mst. Shamshad Begum and the accused Muhammad Sadiq benefiting the lot of the accused, so he was declared hostile at the request of the P. S. I. The learned trial Judge further observed that the attitude of Mir Alam would show that after his statement recorded on at1-1-73 under section 164, Cr P. C., he was either influenced by the accused party or was possessed of lurking fear of Obedur-Rehman brother of the accused Muhammad Sadiq who was admittedly an absconder in the case of the murder of Mir Nawaz deceased son of the present deceased Saifur Rahim. The learned trial Judge proceeded to observe that circumstances, therefore, existed to take the statement of Mir Alam C. W. 1 into consideration who narrated the scene of occurrence exactly what was narrated by Mst. Shamshad Begum. Taking the statement of C. W. Mir Alam as a whole, the learned Judge came to the inescapable conclusion that he intentionally omitted the names of Ms t. Shamshad Begum and the accused Muhammad Sadiq, in his statement before the committing Magistrate and that at the trial in this Court. The learned trial Judge discussed the plea of alibi of the appellant in para.

8. This discussion needs verbatum re-production--

8. Now I come to the plea of alibi of the accused. The accused in his statement before the committing Magistrate stated that at the time of occurrence he was present in Police Station, Kabuli and was on duty. Evidently enough the accused Muhammad Sadiq being an A. S. I. in the Police Department was on leave from 12-12-72, and per entry at Serial No. 50 he cut his leave short and reported to the Police Station before availing the leave in full. Explaining his earlier report on duty the accused stated that a murder case was pending against his brother and when a date was fixed by the Court of Sessions, he was contended as his job was accomplished and therefore at the request of Abdul Wit he resumed his duties earlier observing also heavy work. This claim of loyalty towards State duties seemed ridiculous and the accused himself being an A. S. I. avoiding his implication in the murder of Saifur Rahim deceased, got the factum of early report entered at Serial No. 50 copy Exh. C. W./1. When Ajmal Khan P. W. 5 was being examined, attention was invited on behalf of the prosecution that the Daily Diary containing entries of Exh. C. W./1 were existing on different sheets than the paper of the original roznamcha. Observance being apparent the original roznamcha was retained and which is before me. I have seen the two sheets also containing the entries at Serial Nos. 50, 52 and 54, dated 21-12-72, and the sheets seem to have been pasted in the binding of the Daily Diary. These two sheets are not sewn in the binding of the took and in view of the circumstances when Muhammad Sadiq accused was an A. S. I. during the days of occurrence and a field worker had the status to invent document in proof of his pleaded alibi. Two sheets containing the entries Nos. 50, 52 and 54 also were there fore manufactured in the Police Station when accused employed his service technic. It is regretting to note that in spite of this apparent manufacture of sheets and attachment in the Daily Diary, nothing was suspected by his colleagues most probably with ulterior motives." It is implicitly clear in this discussion in para. 8 that the learned trial Judge has not discussed the entries in the Daily Diary No. 28 dated 22-12-72 Exh. C. W./2. The learned trial Judge finally came to the conclusion that Mst. Shamshad Begum reported the occurrence to the Police without a bit of delay and that her testimony was corroborated by the evidence of Mir Alam C. W. 1 and his attitude With regard to the plea of alibi of the appellant the learned trial Judge observed :- "Plea of alibi and fabrication of record clearly reflected the conduct of the accused who being an A. S. I. during the days of occurrence was on leave and fictitiously showed reports indicating resumption of duty earlier to avoid consequences."

10. Mr. M. Anwar, learned counsel for the appellant argued that P. W. 7 Mst. Shamshad Begum is daughter of the deceased and has animosity with the appellant; her evidence requires very strong corroboration for basing the conviction of the appellant. He also argued that the learned trial Judge had fallen into a serious error in considering the statement of C. W Mir Alam under section 164, Cr. P. C. as substantive evidence and from which statement the C. W. has resiled before the committing Magistrate and also at the trial. He further argued that the plea of alibi of the appellant has wrongly been disbelieved and has also been wrongly held to be fabrication of record.

11. P. W. Mst. Shamshad Begum is a related and interested witness and her testimony requires exceptionally strong corroboration to make it worthy of credit. An interested witness is one who has a motive for false implication of an accused person. In Nazir and others v. The State (P L D 1962 S C 269) it was held:- "Held, that there cannot be an inflexible rule that the statement of an "interested" witness can never be accepted without corroboration. By what was said in Niaz v. The State (P L D 1960 S C 387) it was not meant to lay down any rule of law though it explained for the guidance of Courts the Supreme Court's approach to the problem that generally confronts the Courts in cases of crime by violence. There may be an interested witness whom the Court regards as incap able of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, there fore, to be satisfied that no innocent persons are being implicated alongwith the guilty, the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is, meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty, the circumstance relied upon must have a bearing on this question." In Wasiullah v. Mirza Ali and others (P L D 1963 S C 25) it was observed at page 29, "that when the main direct evidence be also that of interested persons i.e. enemies of the persons charged, it is proper to ask that the evidence in corroboration should be exceptionally strong, almost, if not quite, sufficient by itself to establish the guilt of individual accused person, beyond reasonable doubt." In Thoba and another v. The State (P L D 1963 S C 40) it has been observed at page 44:

"It is thus clear that the appraisement of the evidence of eye-witnesses was not based upon full consideration and evaluation of all the circumstances appearing in the case. This was prominently a case wherein the total absence of physical circumstances to connect the two accused persons with the crime and there being no proximate motive for the attack, the existence of a feud-based enmity operated as strongly to explain the implication of the two accused persons, as it did to support the allegation of an unprovoked attack by them upon a feudal enemy. In that situation, ocular evidence, to carry conviction on a capital charge must come from an unimpeachable source, or if such a source be not available, it must be supported by some strong circumstance, such as might serve to overcome the inherent doubt by which such evidence is necessarily affected." In Bagh Ali and 4 others v. The State (PLD 1973 SC 321) it has been observed at page 326:-- "As has been pointed out by this Court in the case of Thoba v. The State (P L D 1963 S C 40), the appraisement of the evidence of eye-witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is a total absence of physical circumstances to connect the accused persons with the crime, and there is a background of enmity. In suce a situation, the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source. If such a source is not available, then it must be supported by some strong circumstance which would enable the Court to overcome the inherent doubt which such evidence must necessarily create."

12. Let us now scrutinize the testimony of Mst. Shamshad Begum in the light of the law laid down by the Supreme Court in the above-noted decisions. The testimony of Mst. Shamshad Begum has not been corroborated either by any independent witness or by the medical evidence or any confirmatory circumstance. In the F. I. R. Mst. Shamshad Begum stated that her father was fired from the sugarcane field situated on the eastern side of the road. She also stated before the committing Magistrate that his father was fired at from his left side. It is the case of the prosecution that the deceased and P. W. Shamshad Begum alongwith Mir Alam and Tajuddin were coming froth the northern side on the road to the southern side. In such a case one of the sugurcane fields situated on the eastern side of the road would fall to the left side of the deceased. The medical evidence shows that 7th and 8th ribs on the right side of the deceased were fractured. P. W. Doctor Walayat Sher has stated in unambiguous language that the deceased had received the injury on the right side of the body. This medical evidence directly condradicts ocular evidence of Mst. Shamshad Begum. Mst. Shamshad Begum had mentioned in her report that the four accused including the appellant had emerged from the sugarcane crop standing on the eastern side of the road and that Sadiq effectively fired at Saifur Rahim deceased while the other three persons fired at Shamshad Begum and Mir Alain but they escaped injury. At the trial, she improved her statement and deposed that the appellant and the three companions had come out of the sugarcane field to the ploughed field and then the appellant had fired at the deceased effectively while the other three had fired in the air. The allegations are that Mst. Shamshad Begum was ailing since four-five days and visited the doctor daily before the occurrence and that on the day of occurrence also she was going to Shabqadar for her treatment. The lady in this respect appears to be unworthy of credit. The lady has not produced any prescription of the doctor nor the prosecution has produced the lady doctor in support of the allegation of illness of Mst. Shamshad Begum during the days of occurrence. Moreover, it will not be safe to believe that an ailing lady would come out of her house in the morning at about 8 a.m. in the extreme cold days of the month of December. It is admitted by Mst. Shamahad Begum in her cross- examination that the occurrence took place at a distance of one furlong from their house near Miro Kili. It is stated at the bar that the distance between Miro Kili and Shabqadar by road would be about three or four furlongs. Under these circumstances, the probability is that when Saifur Rahim was killed at a distance of about a furlong from his house, Mst. Shamshad Begum on getting information about it, rushed to the spot and charged the appellant on account of the enmity.

13. The learned trial Judge has erroneously in law treated the evidence of Mir Alam as corroboration of the evidence of Mst. Shamshad Begum. C. W. Mir Alam has resiled from his statement under section 164, Cr. P. C. during the commitment proceedings and he was declared hostile. He also resiled from the same statement at the trial when he was examined as a Court witness. It is a settled law that a statement recorded under section 164, Cr. P. C. cannot be admitted as a substantive evidence against an accused but it can only be used for contradicting the maker of the statement or corroborating him. The learned trial Judge has used the statement of Mir Alam recorded under section 164, Cr. P. C. as substantive evidence corro borating the testimony of Mst. Shamshad Begum. The learned A. A.-G. supported the legal position adopted by the learned Sessions Judge by the observations in the case of Soomro v. The State (P L D 1972 Kar. 500) paras. 16 and 17 at pages 506-507 of this judgment are worthy of reproduction to appreciate the principle of law decided therein: "

16. The learned Sessions Judge also came to the conclusion that in spite of the fact that P. Ws. Rano and Nimro have resiled from their previous statements, there is other corroboratory evidence to convict the appellant. In this regard he made a pertinent observation in his Judgment with regards to P. W. Nimro. From the conduct of this witness and from the manner of his giving evidence I am convinced that he has intentionally tried to suppress the truth and gave false evidence in order to save the accused Soomro Bhil." The learned trial Court also has the same opinion about the conduct of other eye-witness Ratio from his observation as to his demeanour while giving his evidence.

17. We are therefore, of the opinion that P. Ws. Ratio and Nimro have told the truth while making statements under section 164, Cr. P. C. as well as before the committing Magistrate and during their examination-in- chief before the trial Court. The later denial from their previous statements, during the cross-examination does not in our opinion deprive this Court to accept the previous statements which according to us stand corroborated by the statements of other P. Ws referred above and the circumstances of the case itself. We are supported to hold this opinion by a judgment of the Federal Court of Pakistan reported in Adalat v. The Crown (P L D 1956 F C 171). This was a case where an eye-witness in a murder case bad resiled completely at the time of trial from his previous statement to help out the accused from the clutches of the law. Yet it was held that:

`It is pen to a Court of fact either to reject the whole of the evidence of the witness as untrustworthy or to rely upon the portion which in its view fits best with the probabilities and the facts and circum stances present in the case.' " It was further observed :-- "The matter, rests largely on the judicial discretion of the Court and no hard and fast rule can be laid down in respect to it." We may however point out here that in the above case there was difference of opinion between the four learned Judges Mr. Justice Muhammad Munir and Mr. Justice Muhammad Akram, supported the proposition stated above while the other two learned Judges disagreed with them. The result however, was, due to equal difference of opinion the Judgment of the High Court was maintained which it may be observed was the same as propounded by the opinion of Mr. Justice Muhammad Munir, C. J. and Mi. Justice Muhammad Akram stated above. We, therefore, respectfully follow this Judgment and hold that in criminal proceedings Courts of facts can accept one part of the evidence of self-contradictory witness and reject the other part as was held as a rule of prudence. We therefore, accept the statement made by the P. Ws. Ratio and Nimro under section 164, Cr. P. C. as well as before the committal Court as bearing truth." In this case the learned Judges accepted the statements of P. Ws. Rano and Nimro under section 164, Cr. P. C. as well as before the committing C Court as appearing truth. With rest respect we differ from the views held g by the learned Judges in this case. In Mamand and others v. Emperor (AIR 1946 PC 45) and, the position in the case in hand in respect of the evidentiary value of a statement under section 164, Cr. P. C. is somewhat similar. In column second the Privy Council has observed as under:- "The learned Judges of the High Court accepted the evidence of three eye-witnesses Raja Sarwar Khan (P. W. 11), Barkat (P. W. 13) and Samand (P. W. 15) as to the manner in which the murder was carried out. The story of these three witnesses, which was in substantial agreement, was that they heard a commotion at the dera of one Gahra, that they saw appellants 2 and 3 beating with sticks Naman who was on the ground, and they saw appellant 1, Mamand, grappling with Gahra. The three witnesses ran towards the disturbance, Raja Sarwar Khan and Samand shouting that the assailants should be caught. Before the witnesses reached the spot the three appellants ran away and were chased for some distance by the witness and two other men who bad come up, Barkat says that appellants 2 and 3 got appellant 1 released from Gahra. In the Sessions Court Gahra gave evidence that the murder was committed, not by the accused, but by five other men; but in a statement which he had made before a Magistrate under section 164, Criminal P. C. he had named the appellants as the assailants and attributed to appellant 1 the first blow given to Naman. The learned Sessions Judge fell into an error, not uncommon in criminal Courts in India; of treating the statement made under section 164 as substantive evidence of the facts stated. The statement could be used to discredit the evidence of Gahra given in Court, but not for any other purpose. In the High Court the learned Judges considered that in view of the statement under section 164, Gahra had been won over by the defence, and that his evidence must be entirely ignored. This was the correct attitude." Thus when C. W. Mir Alam was considered to have been won over by the defence in view of his statement under section 164, Cr. P. C., his evidence in the trial Court must have been entirely ignored rather than using it a substantive evidence in corroboration of the witness Mst. Shamshad Begum. In view of this, we ignore the evidence of Mir Alam P. W. given by him at the trial.

14. The plea of alibi raised by the appellant is supported by the evidence of P. W. 5 Ajmal Khan A. S. I who in unequivocal words deposed in cross-examination that the accused Muhammad Sadiq was present in the Police Station (Kabli) on 22-12-1972 at 8 a m. This is the time and date alleged by the prosecution on which Saifur Rahim was killed. The plea of alibi is also supported by the entries in Daily Diaries No. 50, 52 and 53 (copies Exh. C. W./1) dated 21-12-72 and Daily Diary at S. No. 28 dated 22-12-72 copy Exh. C. W./2. In Daily Diary No. 28 dated 22-12-72 which is a "morning report", the presence of Muhammad Sadiq A. S. I. (appellant) Muhammad Ajmal Khan A. S. 1. (P. W. 5) and other Police Officials is mentioned as present in the Police Station at 8 a.m. on 22-12-72. The evidentiary value of the Daily Diaries was questioned by the learned A. A: G. Section. 35 of the Evidence Act reads as under :-- "

35. Relevancy of entry in public record made in performance of duty-- An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant In the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact." Section 74, as amended by the Law Reforms Ordinance (XII of 1972), which came into effect from 14th April 1972, reads as under-- "

74. Public documents.-The following documents are public documents: (1) Documents forming the acts or records of the acts- (i) of the sovereign authority; (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive of any part of Pakistan or of the Commonwealth, or of a foreign country; (2) Public records kept in Pakistan of private documents; (3) documents forming part of the records of judicial proceedings; (4) documents required to be maintained by a public servant under any law; and (5) registered documents the execution whereof is not disputed. Section 77 of the Evidence Act lays down as under:

"

77. Proof of documents by production of certified copies.

Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies." The N: W. F. P. Police Rules, 1937 (in three volumes) were issued by and with authority of the Provincial Government under sections 7 and 12 of the Police Act (V of 1861). Rule 22.48 deals with Register No. 2, at page 971, hart III and is reproduced below:

"(1) The Daily Diary shall be maintained in accordance with section 44 of the Police Act. It shall be in Form.22.48 (1) and shall be maintained by means of the carbon copying process. There shall be two copies. One will remain in the police Station register and the other shall be despatched to the Superintendent, or a gazetted officer designated by the latter, every day at the hour fixed in this behalf. Shortly before the close of each quarter, books containing the proper number of pages for the ensuing three months shall be issued to Police Stations by the Superintendent. The Superintendent shall fix the hours at which station diaries shall be daily closed with reference to the hour of despatch of the post or messenger. (2) Entries in the station diary shall ordinarily be made by the officer-in-charge of the Police Station or by the Station Clerk, but literate officers are required to make reports in their own handwriting. Every matter recorded in such diary shall be so recorded as soon as possible; each separate entry shall be numbered and the hour at which it was made shall commence each such entry. If the hour at which an entry is made concerning information received in the Police Station differs from the hour at which such information was received, both hours shall be stated, As soon as, an entry has been made in the diary, a line shall be drawn across the page immediately below it. (3) The opening entry each day shall give the name of each person in custody, the offence of which he is accused, and the date and hour of arrest, the name of each accused person at large on bail or recogni sance and the date of his release on such security. The last entry each day shall show (a) the balance of cash in hand as shown in the cash account, and (b) the balance of the cattle pound account." Form No. 22.48 (1) of Register No. 2 is prescribed on page 1008 which is reproduced below:- FORM No. 22.48 (1) Register No. II. The Station Daily Diary. Station. . . District. The following officers were present at morning roll call. Sub Inspector Assistant Sun-Inspector . . Head Constables . Constables Mounted Constables. The remaining staff were . . . on duty . . . sick. The station is . . . . . under/over sanctioned strength. Remarks . Diary of the above station commencing at o'clock on the ________________________________________________________________ Serial Name of person making time Substance of No. report report ________________________________________________________________ Signature of Officer Incharge of Police Station. Reading section 35 and section 74 (4) of the Evidence Act, we gather that the entries in Register II maintained under the Police Rule 22.48 in the prescribed form are public documents admissible in. evidence and can be proved by production of certified copies in proof thereof under section 77 of D the Evidence Act. The learned trial Judge while considering his note given with respect to the entries in the Daily Diary after P. W. Ajmal Khan A. S. I., was examined, termed the entries as fabrication of record for the reason that on his inspection of the Daily Diary he observed the two sheets containing entries at S. Nos. 50, 52 and 54 dated 21-12-72 to have been apparently pasted in the binding of the Daily Diary and not sewn in the binding of the book. We have scrutinised the entire Daily Diary produced at the trial for the quarterly period commencing from 20-11-72 to 27-2-73 and find that for every day, with the printed Forms therein, one or two more supplementary' papers have been pasted in the entire book. We are of the view that the blank papers have been pasted with the Form for completely couping with the number of entries of matters reported and recorded on each day and not for any other purpose. The observation of the learned trial Judge that the pasted blank sheets containing entries Nos. 50, 52 and 54 dated 21-12-72 is a fabrication, is entirely erroneous. We note that entry relating to morning report at S. No. 28 dated 22-12-72 at 8 a.m. (copy Exh. C. W. 2), is also on a separate pasted white paper. The learned trial Judge has not discussed the genuineness or otherwise of this entry. This entry has been proved by the evidence of P. W. Ajmal Khan A. S I. to be in the handwriting of Shah Nawaz Maddad Moharrir. Entry No. 28 dated 22-12-72, copy Exh. C. W./2 confirms the presence of the appellant in the Police Station Kabli at the time of occurrence. The distance between the Police Station Kabli Peshawar City and the venue of the occurrence via Shabqadar would be about 20 miles. Consequently we hold that the sole uncorroborated and contra dictory evidence of a related and interested witness like Mst. Shamshad Begum is not sufficient to establish the guilt of the appellant and that the alibi of the appellant stands proved. We, therefore, while accepting the appeal, set aside the conviction and sentence of the appellant and acquit him.

15. The death sentence is not confirmed. K. B. A. Appeal accepted.