1973 P Cr (PLP)

6. The material brought on the record was considered by the learned Inquiry Magistrate sufficient to justify the inference of a prima facie case leading to the framing of charge and committal.

7. The principal contention raised on behalf of the petitioners before me was that it was a case of no evidence. It was argued that the approver having failed to support the prosecution, his earlier statement under section 164, Cr. P. C., recorded by the Magistrate was inadmissible inasmuch as it did not amount to substantive evidence. Reliance was placed in this regard on Yaroo v. The State (1969 P Cr. L J 15 0), Bahadur and another v. The State (1970 P Cr. L J 1104), Riaz Ahmad v. The State (P L D 1970 Lah. 689), Hari Ballav Shaha Roy v. Gopi Ballav Shaha (P L D 1959 S C (Pack.) 347) and Bhuboni v. The King (PLD 1949PC90). It was next submitted that the so-called evidence of recovery of wrist watch was simply worthless inasmuch as even .if the three witnesses, namely, Ijaz Ahmad P. W. 22, Nazir Ahmad P. W. 23 and Inspector Niaz Haider P. W. 40, were implicitly relied upon in this regard, in the absence of any detailed description of the witch in the initial report, its identity could not be established beyond reasonable doubt and as such the possibility of fabrication could not be excluded. Lastly, it was argued that the allegation of murder was not supported by medical evidence.

8. On the other hand, it was contended by the learned counsel for the State supported by the learned counsel for the complainant that the material brought on the record was sufficient to justify an inference as to the existence of a prima facie case and as such the order of the learned Inquiry Magistrate was unexceptionable. It was argued that taking the most favourable position for the defence it could at best be characterized as a weak case for the prosecution based on inadequate evidence which could not be construed as a legal ground as envisaged by section 215, Cr. P. C. justifying quashing of proceedings. Reliance was placed in this regard on Ghulam Shabbir v. The Crown (P L D 1954 Lah. 687), Muhammad Azam v. The State (1970 P Cr. L 1 1276) and Khera and others v. The Crown (P L D 1954 BJ 130). Lastly, it was contended that the prosecution case could possibly improve at the trial by the examination of certain important witnesses as C. Ws. or the reversion of the approver to his previous statement made under section 164, Cr. P. C.

9. Having considered the contentions raised by the learned counsel for the parties, I am clearly of the view that it cannot be held to be a case of no evidence so as to attract the provision contained in section 215, Cr. P. C. Although complete want of evidence has been held to be a legal ground in terms of the aforesaid provision, it is well settled that weakness of the prosecution case on account of inadequacy of evidence o otherwise is not a legal ground. As stated earlier, learned counsel for the petitioners tried to justify the invocation of section 215, Cr. P. C. on the grounds that the exclusion of the statement of the approver under section 164, Cr. P. C. from which he had completely resiled during inquiry would knock the bottom nut of the prosecution case; that the evidence of recoveries was unreliable; that the so-called love-letters allegedly written to the deceased by the daughter of Miraj Din petitioner were not legally proved to have been written by her. It was argued that as such it would be virtually a case of no evidence, the acquittal of the petitioner being a foregone conclusion. 9-A. Without attempting an appreciation of the evidence brought on the record which falls within the domain of the trial Court it may be observed that to start with we have on the record the earlier report Exh. D. C. made by Ayub-ul-Hassan P. W. 12 brother of the deceased, at Police Post Lytton Road, Lahore, which contained a definite allegation that the deceased appre hended danger to his life at the hands of Miraj Din petitioner. Although in the report the enmity was attributed to business rivalry yet the motive so alleged is neither very material nor otherwise incapable of explanation. For quite obvious reasons, the deceased or for that matter his brother Ayub-ul-Hassan would normally have avoided the embarrassment of a reference to the love affair between the former and the daughter of Miraj Din petitioner. Alternatively, it might not have been within the knowledge of Ayub-ul-Hassan and perhaps the deceased had no taken him into confidence. The recovery of the photo Exh. P. 10 wherein the deceased was found to be sitting arm-in-arm with Abida Kausar, daughter of Miraj Din petitioner, as also that of letter Exh. P. 12 purporting to have been written by her, considered in the light of the statement of Nawab Din P. W. 11, uncle of the deceased, who stated that six months prior to the occurrence Miraj Din and his wife had approached him to use his good offices in the restoration of the letter, would prima fade furnish sufficient material on the point of motive. According to the report of Mr. Qamar Ahmad Bhatti, Handwriting Expert, the letter Exh. P. 12 and the writing on the exercise book allegedly recovered from the house of Miraj Din purporting to be those of his daughter was in the same hand. Then we have the statement of Junaid Tahir P. W. 3, Who had met Yusuf Shah approver and Nazir petitioner in the company of the deceased a couple of hours before the latter undertook his last journey. According to him, the deceased informed him that he would not be able to keep his appointment and would see them after 7 p.m. We have also the evidence of other recoveries some of which not only appear to be quite relevant but lend support to the appro ver's statement under section 164, Cr. P. C. and prima facie have some incriminating force. Then there is the final report of the Medical Board which tends to show that death had occurred due to alcohol and that the possibility of asphxia as a contributory factor could not be ruled out either. Lastly, the circumstances of the abscondence of Abdullah, named by the approver, as one of the culprits also imparts a colour of veracity to his statement. The confessional statement of Yusuf Shah approver was recorded by Mr. C. J. Pervaiz, Magistrate 1st Class P. W.

32. He stated that he had explained to the approver that he was under no obligation to make confessional statement which could be used against him. At this stage it is to be presumed that the statement was recorded in accordance with the legal requirements contained in section 164, Cr. P. C.

10. Thus it is abundantly clear to me whatever might other wise be the evidentiary value of the material collected by the police in the course of investigation and regardless of the weakness of the prosecution case or the optimism of the defence about the acquittal of the accused at the trial it can by no means be suggest ed with any amount of reasonableness that it is a case of no evidence. As, stated earlier, insufficiency or weakness of evidence cannot be construed as a legal ground in terms of section 215, Cr. P. C. as held in a chain of authorities. To quote only a few references may be made to Maroti Jairam v. Emperor (A I R 1935 Nag. 202), Hassan Din v. Emperor (A I R 1931 Lah. 467), Francis Xaviev Ferandes v. Emperor (A I R 1936 Sind. 3) and Emperor v. Waroo and another (A I R 1938 Sind 79).

11. It now remains to consider the authorities relied upon by the learned counsel for the parties. In support of the contention that the statement of an approver under section 164, Cr. P. C. did not constitute substantive evidence, the first authority relied upon by the learned counsel for the petitioners was Bhuboni Sahu v. The King (AIR 1949 P C 257). It was held by their Lordships that although the statement of an approver under section 164, Cr. P. C. stood on a better footing than the confes sional statement of co-accused relevant under section 30 of the Evidence Act, yet it could not be used as substantive evidence of the facts stated but could however, be employed to support or challenge evidence given in Court by the person who made the statement. It was further held that while it was not illegal to act on the uncorroborated evidence of an accomplice it was a rule of prudence amounting almost to a rule of law by its universal adop tion that it was unsafe to act upon the evidence of an accomplice unless it was corroborated in material particulars. It was further observed that an accomplice could not corroborate himself at tainted evidence did not lose its taint by repetition. The next case is a D. B. authority Yaqoo v. The State. It was a case of retracted confession by a single accused. The two eye-witnesses whose statements had been recorded under sec tion 164, Cr. P. C. made some concessions during inquiry. It appears that the learned trial Judge had used the statements of the witnesses recorded under section 164, Cr. P. C. as substantive evidence which was disapproved on the basis of the following observations made in Brig. Bhushan Singh v. The Emperor (AIR 1946 P C 38): "A perusal, however, of the whole, of the judgment makes it apparent, in their Lordships' view, that the statements were used as substantive evidence and it was for this reason that the appeal to His Majesty-in-Council was admitted. The learned Judges discussed in great detail the statements made by Haliman and Mahabir under section 164, and gave reasons for accepting the facts, or most of the facts, deposed to in those statements, in preference to the evidence given by the witnesses in Court, which in no way helped the prosecution. This was an improper use of such statements. A statement under section 164, can be used to cross-examine the person who made it, and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated out of Court under section 164, is true." The next authority pressed into service is Hari Ballav Shaha Roy v. Gopi Ballav Shaha etc. In this authority, their Lordships ; examined considerable case-law. A reference may be made in this regard to the following quotation from Ramachandra Babaji Gorre v. Emperor (I L R 59 Bom. 125) which was a Full Bench decision:

"If the Magistrate comes to the conclusion that there is evidence to be weighed, he ought to commit the accused for trial, and he ought not to discharge the accused merely because he thinks that if he were to try the case himself he would not be prepared to convict the accused on the evidence before him." Reference was also made to a decision of the Allahabad High Court quoted as Akbar Ali v. Rai Bahadur and others (A I R 1925 All. 670) The precise observation in point made by Suleman, J. was as follows : "The expression 'not sufficient ground for committing the accused' is quite different from the expression as the 'case not proved' or 'the accused are innocent'." After a review of the relevant authorities, it was held by their Lordships that a preliminary inquiry was obviously meant to eliminate false and frivolous cases causing avoidable harassment and expense to innocent persons besides occupying the time of the Court as clearly evidenced by the mandatory provision contained in section 209, Cr. P. C. making it incumbent on the Inquiry Magistrate to discharge an accused if sufficient grounds for com mittal were not available. From this it was inferred that the Magistrate had necessarily to appreciate the evidence in order to determine the sufficiency or otherwise of grounds for committal. It was observed that no hard and fast rule could be laid down. The test laid down by their Lordships as a safe guide in this regard was that If on the evidence, the Magistrate comes to the conclusion that the matter is not free from doubt and conviction being improbable and yet he cannot safely rule out its possibility, he should commit the accused for trial. If, however, on the other hand, he comes to the conclusion that no Court could reasonably be expected to con vict the accused he should discharge him. Their Lordships also referred to some borderline cases and realising the difficulty in the precise definition of the "limits" left the matter to be decided on the facts and circumstances of each case. The same view was followed in Riaz A ma v. The State.

12. There can be hardly any doubt as to the correctness of the well-settled proposition that a statement made under section 164, Cr. P. C. does not constitute substantive evidence and can be used to corroborate or challenge an earlier statement under section 157 of the Evidence Act. Learned counsel for the petitioners was at pains to show that once the approver's statement Exh. P. B recorded under section 164, Cr. P. C. was excluded the acquittal of the accused would be a foregone conclusion. On the other hand, it was clearly held in Ghulam Shabbir v. The Crown (P L D 1954 Lah. 607) by M. Munir, C.. J., as he then was, that if an approver had been examined under subsection (2) of section 337, Cr. P. C. though he may have resiled from his previous statement the accused must be committed to stand trial if the Magistrate were of the opinion that there was reasonable ground for believing that the accused was guilty of the offence. In the case before his Lordship, there were two approvers instead of one, and both com pletely went back before the committing Magistrate on their pre vious statements recorded under section 164, Cr. P. C. The Public Prosecutor made a rather unusual statement before the Inquiry Magistrate that since the offence of murder had not been proved owing to the unfavourable statement of the approvers the case may be decided on the evidence on the record, instead of be ing committed, by the Magistrate himself. The Magistrate accepting the advice of the Public Prosecutor proceeded with the trial, It was held that the trial was without jurisdiction. In the instant case, as mentioned earlier, forty prosecution witnesses were examined during inquiry and this material, in the opinion of the Magistrate, justified the order of committal.

13. In Ifrikhar-ud-Din v. The Crown (P L D 1955 Lah. 375), which is not directly in point, the view taken was that although the statement of an approver who accepts pardon under section 337, Cr. P. C. is essentially the result of inducement and promise initiated by the police, it is not hit by the provision contained in section 24 of the Evidence Act inasmuch as it is not being used as a confession but as a piece of evidence against other accused. It was further held that such a statement would not be inadmis sible on the ground that it was not recorded in terms of sec tion 164, Cr. P. C. Shabir Ahmad, J. who delivered the judgment observed as follows :- "I have no doubt in my mind that in order to determine whether or not non-compliance with any provision of law made a statement inadmissible, one should look to the circumstances as they existed at the time when that statement was made, and if that statement did not require a thing to be done which it was necessary to do if that statement were made under some other circumstances, the non-compliance with a provision of law which would have been applicable if those other circumstances existed cannot make the statement inadmissible."

14. In Mst. Fazlan v. The Crown (P L D 1956 F C 7) although the case related to the trial of Mst. Fazlan appellant who initially having accepted pardon under section 337, Cr. P. C. resiled from her statement it wag held that her statement under section 164, Criminal Procedure Code was inadmissible against her own trial after forfeiture of pardon. The relevant observations read as follows:

"When the person who made the statement is himself an accused person in the case, the statement, if self-incriminatory can only be proved against him, if it is relevant, under the law of evidence. In other words, it must be proved to be voluntary, and from the technical point of view, it must be recorded in the form prescribed for the purpose viz., by section 364, Criminal P. C. read with section 164, Criminal P. C. As a previous statement it can be used only for contradiction or corrobora tion, which in the case of an accused person in Pakistan, who is not a competent witness, is not possible. It has been seen that the provisions of sections 32 and 33, Evidence Act, are not available to render a statement of the present kind admissible in evidence. Therefore, such a statement is under the general law not admissible in evidence at all." Towards conclusion it was observed: "We are satisfied that the correct view is that the words 'the statement' in section 339, subsection (2) Criminal P. C. refer to either the statement of the approver before the committing Magistrate, or his statement at the trial, or to both. They can not, in our view, be stretched to include any statement made by the approver in the course of the investigation. On this ground, we hold the statement of Mst. Fazlan under section 164, Cri minal P. C. to be inadmissible. When the statement is eliminat ed, the evidence become altogether insubstantial and wholly insufficient to sustain the conviction, so that the accused person becomes entitled to acquittal." The position in the instant case is obviously distinguishable.

15. Having carefully considered the facts and circumstances of the case in the light of the relevant authorities, I am clearly of the view that judged by the criteria laid down therein the inadmissibility of the statement of the approver as substantive evidence notwithstanding, the committal of the petitioners is unexception able. The petition, therefore, fails and is hereby dismissed. Petition dismissed.