P L D 1960 (W (PLP)

ABDUL AZIZ KHAN, J.‑Fazla, his son Tufail, his nephew Ibrahirn, and his relative Ghulam Muhammad alias Ghulam Ahmad were tried by Mr. C. M. Shafqat, Additional Sessions Judge, Montgomery, under section 302/34 of the Pakistan Penal Code, the allegations against them being that, on the 10th of April 1959, at asarwela in the area of.Chak No. 273/E. B., in furtherance of their common intention, they had murdered Allah Rakha. The learned Additional Sessions Judge acquitted Tufail, but convicted Fazla, Ibrahim and Ghulam Ahmad under section 302/34 of the Pakistan Penal Code and sentenced Fazla to death' and Ibrahim and Ghulam Ahmad to transportation for life each. Fazla and Ibrahim have appealed to this Court against their convictions and sentences through Mian Hamid‑ud‑Din, their appeal being Criminal Appeal No. 667 of 1959. Ghulam Muhammad alias Ghulam Ahmad has appealed through the jail authorities, his appeal being Criminal Appeal No. 1000 of 1959. Mr. S. M. Shafi, however, appeared and argued his appeal before us. The case is also before us under section 374 of the Code of Criminal Procedure: This judgment will dispose of both the appeals as well as the reference for confirmation of the death sentence imposed on Fazla.

2. The facts out of which these appeals arise are that Dare Khan (P. W. 2) and his brother Mehnge Khan deceased, father of Munshi (P. W. 3), originally belonged to a village in Kapurthala State and on the partition of the country, they mig rated to Pakistan and settled in Chak No. 273/E. B. where they were temporarily allotted 18 acres of land. Subsequently, 12 acres out of this land was confirmed in their name, while the remaining six acres were allotted to Nur Muhammad, father's brother of Fazla appellant, on the 11th of December 1956. Nur Muhammad died on the 27th of February 1959, and on his death mutation of those six acres was effected in the name of Fazla appellant and four others in equal shares. There was a piece of nine kanals of banjar qadim in the aforesaid land, i.e., 5 kanals in Killa No. 21 and 4 kanals in Killa No.

22. The prosecution case is that Nur Muhammad deceased, in his lifetime, gave Dare Khan P. W. and Mehnge Khan nine kanals of banjar gadim mentioned above in lieu of two kanals of canal‑irrigated land out of the 12 acres permanently allotted to Dare Khan P. W. This agreement was embodied in an application dated the 19th of November 1957 (copy Exh. P. O.). It is alleged that on Nur Muhammad's death, Fazla appellant resiled from the compromise and a day before Eid‑ul‑Fitr in 1959, he and his son Tufail (who has been acquitted) went to plough the nine kanals of banjar land. On learning this, Dare Khan P. W. went to the land and prevented them from ploughing it. This is alleged to have annoyed Fazla and his relatives, and this annoyance is said to have led to the murder of Allah Rakha on the 10th of April 1959, the day of Eid‑ul‑Fitr, at asarwela.

3. According to the prosecution, the appellants and Tufail (who has been acquitted) are related inter se. Tufail is the son of Fazla appellant and Ibrahim is his nephew. Fazla's sister is alleged to be the wife of Chand, a brother of Ghulam Ahmad. At the trial, Ghulam Ahmad denied the relationship with Fazla's family. He had, however, admitted his relationship with Fazla's family in his statement before the Committing Magistrate as would appear from the following question :‑ Q.‑Is it a fact that Ibrahim, Tufail and Fazla accused are related to you ? A.‑Yes. In view of the admission of Ghulam Muhammad alias Ghulam Ahmad appellant before the Committing Magistrate, we have no hesitation in holding that the prosecution assertion that he too is related to Fazla appellant is true.

4. On the eventful day, Allah Rakha deceased and Munshi P. W. took their cattle for grazing to their land which is three squares away from the village abadi. At digarwela, Dare Khan P. W. took cooked rice for them. Half an hour after taking the rice, Allah Rakha deceased and Dare Khan and Munshi P. Ws. started .for the village with their cattle. When they reached near the dhari of Fazla appellant, they heard Fazla appellant shouting that he would teach them a lesson about the dispute of the land. Fazla appellant was accompanied by the other appellants and Tufail, who has been acquitted. Fazla had sickle Exh. P. 1 in his hand, Ghulam Muhammad alias Ghulam Ahmad and Ibrahim had a toka each, while Tufail was empty‑handed. On hearing Fazla's shout, Dare Khan and Munshi P. Ws. and Allah Rakha deceased ran towards the village. After they had run about 30/35 karams, they heard the shrieks of Allah Rakha who was behind them. They turned round and saw Tufail (who has been acquitted) holding Allah Rakha by the arm and the other three appellants causing injuries to him with their respective weapons. Dare Khan and Munshi P. Ws. raised an alarm which attracted Fajja (P. W. 4) and Hassa (P. W: 5) to the spot. The, appearance of Fajja and Hassa P. Ws. encouraged Dare Khan and Munshi P. Ws. to run back to rescue Allah Rakha deceased. On their approach, the appellants and their companion Tufail ran away. When they came close to Allah Rakha, the P. Ws. found that be had expired. At about midnight, Dare Khan P. W. left for Police Station Ahmadyar, five miles distant from the scene of occurrence, and lodged the first information report Exh. P. A. on the 11th of April 1959, at 2 a.m.

5. Sub‑Inspector Abdur Rashid (P. W. 11) reached the spot at 5 a.m., prepared the inquest report and then despatched the dead body to Pakpattan mortuary for post‑mortem examination He collected blood‑stained earth from the spot and sealed it into a parcel vide memo. Exh. P. B. He arrested Ghulam Muhammad alias Ghulam Ahmad on the 11th of April 1959, at 12.30 p.m. On observing blood‑stains on his shirt Exh. P. 3 and chadar Exh. P. 4, the Sub‑Inspector took these garments into possession and sealed them into a parcel vide memo Exh. P. C. As a result of interrogation, Ghulam Muhammad alias Ghulam. Ahmad appellant led the Sub‑Inspector and others to a wan tree near 3 L Minor and produced the blood‑stained toka Exh. P. 5 which the Sub‑Inspector sealed into a parcel vide memo. Exh. P. D. Fazla and Ibrahim appellants were arrested at 2 p.m. Fazla led the Sub‑Inspector to the spot from which Exh. P. 1 was recovered. The Sub‑Inspector took it into possession vide memo .Exh. P. E. Ibrahim appellant led the Sub Inspector to the spot from which the toka Exh. P. 2 was recovered, and the Sub Inspector took it into possession vide memo. Exh. P. F.

6. Doctor M. I. Qureshi (P. W. 1), who conducted the post‑mortem examination on the 12th of April 1959, at 9 a.m observed twenty incised wounds on Allah Rakha's dead body According to the doctor, death was due to shock and intracranial haemorrhage resulting from injuries to the head and neck. The doctor was also of the opinion that the injuries were sufficient in the ordinary course of nature to cause death. The doctor found eight ounces of undigested rice in the stomach of the decease. He was of the opinion that rice had been taken within an hour before death.

7. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them.

8. It will be seen from the above statement of facts that the prosecution case rests on the evidence of Dare Khan (P. W: 2), Munshi (P. W. 3), Fajja (P. W. 4) and Hassa (P. W. 5). Dare Khan P. W. is the father and Munshi P. W. is a cousin of Allah Rakha deceased. The learned Additional Sessions Judge acquitted Tufail as the evidence against him consisted of the interested testimony of Dare Khan and Munshi P. Ws. as would appear from the following passage occurring in his judgment:‑- "The part assigned to Tufail accused is the holding of Allah Rakha but Fajja and Hassa did not see this part of the act. They saw the occurrence only from the point when the boy had fallen down but was being beaten by the three accused who were armed. About Tufail accused, Fajja P. W. states that he was standing by, while Hassa states that he was standing at a distance of two karams from him. In the examination‑in‑chief, he first stated that the four accused were beating the boy, but later Hassa clarified that it were only those who were armed that were doing so. It seems to me that the part assigned to Tufail accused is hardly consequential and for lack of independent corroboration of the statements of the father and the cousin of the deceased. I would not consider Tufail. as a participant in the crime. His part as stated by Fajja and Hassa is neutral and it is not legitimate to draw an adverse inference from the mere act of standing nearby on his part. Not even a lalkara is attributed to him on the part of the independent eye‑witnesses or indeed of the related eye witnesses." We agree with the learned Additional Sessions Judge in the view he has taken of the evidence of Dare Khan and Munshi P. Ws. We would indeed go further and hold that it is not safe in this A case to convict anyone on the uncorroborated and interested testimony of Dare Khan and Munshi P. Ws.

9. Fajja and Hassa P. Ws. who are alleged to be independent witnesses, made different statements on different occasions. In portion A to A in his police statement Exh. D. B., Fajja P. W. is recorded as saying that it was his turn of water on the Eid Day whereas he stated in Court that he had gone to help his nephew in watering their fields on that day. Fajja P. W. stated in cross‑examination at‑ the trial that his land is at a distance of three or four squares from the scene of occurrence. He was, however, duly confronted with his statement made before the Committing Magistrate where he had stated that his land is at a distance of six or seven squares from the scene of occurrence. If it be held that he was in his field, Which according to his statement at the trial is three or four squares and according to his statement before the Committing Magistrate six or seven squares from the scene of occurrence, he could not have reached the scene of crime in time to witness the attack on Allah Rakha deceased.

10. In portion A to A in his police statement Exh. D. C., Hassa P. W. stated that he had gone to bring gram from his own field, whereas in his statement at the trial he stated that he had gone to the field of one Gola to help him. Hassa P. W. admitted in cross‑examination that his land is at a distance of four squares from the Chak on the other side. This would mean that he was at a considerable distance from the scene of occurrence., If it be held that Hassa P. W. was in his own field, it was impossible for him to have reached the scene of occurrence in time to see the attack on Allah Rakha.

11. The learned Additional Sessions Judge held that the, discrepancies between the police statements of these witnesses and their statements at the trial were not entitled to much weight as would appear from the following passage which is being reproduced from his judgment :‑ "Regarding statements to the police there is this to be noted that they are not made on oath or signed. They are really recorded for the purpose of investigation, and in no way bind the witnesses. It is a matter of common knowledge that in our country the police officers are not exactly troubled by a meticulous regard for truth. It is for these reason, improper to try to give them the same dignity as to statements made in Courts. The law itself makes the distinction. Under section 161, Cr. P. C. it is not obligatory upon a police officer to reduce the oral statements of witnesses into writing, and in any case such statements are not to be signed (under section 162, Cr. P. C.). Whether it was because our legislature thought that the police is not inspired by a regard for truth or whether they considered its act to be oppressive generally the fact remains that the provisions above clearly accord a lowly position to statements recorded by it. In the circumstances a witness cannot be seriously hauled up for discrepancies noted in his statements, not indeed to the police but as recorded by the police". We do not agree with the reasons given by the learned Additional Sessions Judge for not attaching importance to the discrepancies between the police statements and statements made at the trial. No authorities were cited at the bar but the law on the subject is abundantly clear as would appear from the following:--

12. The following observations of Khundkar and Ellis, JJ. in Fazlur Rahman v. Emperor (A I R 1947 Cal. 192) would show the importance that has to be attached to the discrepancies between the police statement of a witness and his statement at the trial. In the above case, Fazlur Rahman and others were tried by the learned Sessions Judge with the aid of a jury. In dealing with the previous statements of witness to the police during investigation, the Judge gave the following direction to the jury :‑ "In this connection, gentlemen, I should like to tell you that there is no legal obligation to speak the truth in answer to question .of the police under section 161, Cr. P. C. So the witness cannot be prosecuted for giving false evidence. The statement is not given on oath and the police officer is not trained in taking evidence and such police proceedings are not substantial evidence and cannot be used in order to test the correctness of the statements made on oath before the Court. When the statement to police is inconsistent with the statement in Court, the Jury is to see if the latter is made unreliable thereby." The accused were convicted under section 395 of the Penal Code. On appeal, their Lordships made the following observations about the aforesaid direction:‑-- "This direction clearly loses sight of the notorious tendency of witnesses in criminal cases in this country to change and improve the statements made by them to the police during investigation. It also clearly has the effect of creating in the minds of a jury the impression that the previous statements of witnesses made to the police are of such a character as not to be of any real importance. Once a jury take that view then the purpose of contradicting a witness in the manner provided by section 145, Evidence Act, by his previous statements made to the police and reduced to writing is largely frustrated." At page 193 of the report, the following observation of Khundkar, J. deserves consideration:‑-- "The well‑known provisions of section 162 of the Code of Criminal Procedure, afford to accused persons an opportunity of showing that the statements made by the witnesses at the trial are opposed to statements which the same witnesses actually made to the police at an earlier stage during investi gation. The first proviso to section 162 (1), Cr. P. C. says, that the Court shall, on the request of the accused, refer to the statements of prosecution witnesses made in an earlier inquiry or trial, when those statements have been reduced into writing, and that the accused is to be furnished with a copy thereof in order that any part of such statements if duly proved, may be used to contradict such witness in the manner provided by section 145, Evidence Act. The language of section 145, Evidence Act, is clear and unambiguous. the section says: `A witness may be cross‑examined as to previous statements made by him in writing . . . or reduced into writing . . . . but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The words underlined clearly show that the evidence of a witness at a trial may be shown to be inconsistent with the previous statements, and the method by which this may be done is by producing previous statements of the witness which have been reduced to writing and which are contradictory of the witness's evidence in Court. The whole foundation of this procedure is the principle that a witness who makes inconsistent statements is unreliable."

13. In Tajali Mian'v. Emperor (104 I C 459), Ross and Wort, JJ. of the Patna High Court held :‑-- "Previous statements made by witnesses to the police are not evidence in themselves and where they contradict with the evidence given by them at the trial, the question for the jury is not whether the statements made in Court or those made in the police are true, but whether the inconsistency in the statements does not make the evidence in Court unreliable."

14. In Ram Karan v. King‑Emperor (A I R 1925 Lah. 483), Mortineau and Zafar Ali, JJ. while considering the evidence of Mst. Chambeli, an eye‑witness of the occurrence, observed :‑ "There are glaring inconsistencies between this statement and her previous statements. Even the extremely brief state ment which she made on the 4th June to the Sub‑Inspector was inconsistent with the statement subsequently made at the trial. * * * * * We think it is impossible to place any reliance on the statement made by Chambeli at the trial when it is in such hopeless conflict with her previous statements."

15. A perusal of the above authorities would show the importance that the various Courts in this sub‑continent have attached to the contradictions in the statement of a prosecution witness made before the investigating Officer and at the trial. Such contradictions cannot be ignored as lightly as the learned Additional Sessions Judge has done in the present case. What importance should be attached to the discrepancies of a witness & between his statement to the investigating officer and his‑statement at the trial depends upon the nature of the discrepancies. In the present case, if it be held that Fajja and Hassa P. Ws. were at such a distance that they could not have reached the spot in time to see the attack on Allah Rakha, their testimony is of no use. Their previous statements have been duly brought on the record, and we cannot ignore them. In the circumstances, we do not consider it safe to hold that they saw the attack on the deceased.

16. We are thus left with the evidence of Dare Khan and Munshi P. Ws. The learned counsel for the appellants argued that Dare Khan P. W. had omitted to state in the first information report that he had taken rice for the deceased and Munshi P. W. Every omission in a previous statement of a witness or in the police statement of witness is not of importance. It is the duty of the Court, whenever the defence wishes to contradict the prose cution witness by showing that he did not mention a particular matter in the first information report or in his statement to the police, to decide whether such omission, if established, would amount in substance to a contradiction. If the Judge is so satisfied he should allow the witness to be cross‑examined in the manner provided by section 145 of the Evidence Act, and the attention of the witness should be called to such portion or portions of the recorded statement as may be, fairly placing him in a position to say whether or not he omitted to mention the matter with regard to which the alleged contradiction arises or to explain the alleged omission. If, however, the Court is not satisfied that the omission amounts in substance to a contradiction, any question with regard to the recorded statements should be disallowed, for instance, when the statement of a witness although given in Court is contradicted with his statement as recorded by the investigating officer is nevertheless substantially consistent thereto. It is for the Court to draw a reasonable inference that any alleged omission from the statement amounts in substance to a contradiction and the requisite material must be placed before the Court to enable it to exercise its proper function.

17. We have carefully considered the omission in Dare Khan's statement in the light of the above observation. We are unable to hold that there is such omission as would amount to a contradiction. It is on the record that Dare Khan had mention this fact in his statement before the committing Magistrate. In the circumstances, there would be no justi fication. for ignoring the evidence of Dare Khan P. W. on this ground alone.

18. According to the evidence of Dare Khan and Munshi P. Ws. the appellants and Tufail (who has been acquitted). participated in the attack on Allah Rakha deceased. As already' stated it is not safe to rely on the uncorroborated testimony of these interested witnesses. We have tried to look for such corroboration which is wanting against Fazla and Ibrahim appellants. The recovery of the blood‑stained toka from Ghulam Muhammad alias Ghulam Ahmad is, however, independent circumstance which substantially corroborates the participation of this appellant in the attack on Allah Rakha deceased.

19. Sub‑Inspector Abdur Rashid (P. W. 11) recovered the toka in the presence of Muhammad Tufail (P. W. 7) who has attested the recovery memo. Exh. P. L. The learned counsel for the ‑appellants was unable to show any reason why the evidence of these witnesses be not relied upon. After having gone through the evidence on the record, we have no hesitation in holding that the blood‑stained toka was recovered from Ghulam Muhammad alias Ghulam Ahmed appellant in the manner alleged by the prosecution. Further the serologist's report showed that the toka was stained with human blood.

20. For the reasons stated above, we accept the appeal of Fazla and Ibrahim, set aside their convictions and sentences, and acquit them. They shall be released forthwith if not required to be detained in connection with any other case. The appeal of Ghulam Muhammad alias Ghulam Ahmed is, however, dismissed and his conviction and sentence are hereby maintained.

21. The sentence of death imposed on Fazla appellant is not confirmed. A.H. Order, accordingly.