1969 PLP 837 (SCMR)

Date of hearing : 19th October 1954. AKRAM, J.‑The appellant Ahmi and five others were put upon their trial before the Additional Sessions Judge, Jhang, under section 302/149 and section 148 of the Penal Code for causing the death of Hidayat deceased and for rioting on 1‑10‑1952, but the appellant alone was convicted and sentenced to death under section 302 while the rest of the accused were acquitted on giving them the benefit of the doubt. From the conviction and the sentence, an appeal was taken to the Lahore High Court but it was dismissed and the sentence of death was confirmed. The present appeal was thereupon filed by Ahmi after obtaining our special leave. Briefly stated, the case for the prosecution was that as the deceased had molested Mst. Talia, appellant's sister, the appellant insulted the mother of the deceased by way of retaliation ; that as this led to strained relations between the parties, Hidayat deceased shifted from his village Thatha Muhammad Shah to village Pinanka, where his father‑in‑law and his sister Mst. Panan (P. W. 2) resided ; that a day prior to the day of occurrence, the deceased had come to (lie village Thatha Muhammad Shah with his sister Mst. Pan art (P. W. 2) to offer condolence to Sharif Hussain (P. W. 7) on the death of his mother ; that both of them stayed with him for the night and the next day, at about peshi time, decided to go back to their village Pnanaka. They, however, found that their mare had bolted away towards the maize field of Muhammad Kunlhar; that Hidayat deceased thereupon ran after the mare to catch her, when suddenly six persons including the appellant learned with shovel and lathis appeared on the scene and showered blows upon him with their weapons in consequence of which he expired ; that besides Mst. Panan (P. W. 2) four other witnesses, P. Ws. 3, 4, 5 and 6, who came up on hearing the cries of the victim saw the occurrence ; that the post‑mortem examination by the doctor (P. W. 1) revealed 28 injuries on the deceased, all of which were caused by blunt weapons. The defence was that one Mathela was murdered in the village some years ago and the deceased and some others were suspected as having had a hand in the affair , that they were prosecuted but the deceased was acquitted at the trial ; that some of the relatives of Mathela might have committed the crime by way of taking revenge ; that the appellant was falsely implicated at the instance of Sharif Hussain (P. W. 3). It appears that Mst. Panan (P. W. 2) supported the prosecu tion version at the trial so far as the actual assault was concerned but resiled from her statement as to the motive which led to it and was given by her in the First Information Report. The statements of the other witnesses before the Committing Magistrate, which were transferred to the Sessions file under section 288, Cr. P. C. were then relied upon as corroborative of the evidence of Mst. Panan (P. W. 2). One defence witness Mian Muhammad Yusuf, District Inspector of Police, who had verified the investigation was examined in the case as D W. 1, but all that he said was that the accused were sent up for trial not on the basis of his own investigation but under the orders of the S. P. Counsel for the appellant argued that motive was no corroboration of the identity of the assailant with tile appellant ; that the transfer of the evidence under section 288, Cr. P. C. was unjustified and reliance ought not to have been placed on it in preference to the evidence at the trial ; that the five co- accused being acquitted, it was neither safe nor proper to convict the appellant on the testimony of P W. 2, merely because her evidence regarding the actual assault received corroboration from the statements of other witnesses before the Committing Magis trate relating to the motive for the crime and the general statements made by them at the trial. We are not impressed with the above contentions. The transfer of the depositions under section 288, Cr. P. C. and the reliance upon them by the Court depended on the exercise of the discretion of the Court Faqira and others v. King‑Emperor (64 I A 148). The evidence before the Committing Magistrate being admissible under section 288, Cr. P. C. as substantive evidence the only question that can be raised gets limited to one of weight to be attached to that evidence. The Court below has given good reasons for accepting and relying upon the said evidence. In the course of their judgment, the learned Judges of the High Court have remarked as follows :‑ "The learned trial Judge appears to have erred on the side of caution in acquitting the remaining accused in this case. After considering the evidence on the file we have no hesitation in holding that Ahmi appellant was one of those who assaulted the deceased and caused his death. He had a clear motive for doing so. Mst. Panan seems to have falsely denied that motive at the trial but that is amply established from the statements transferred to the Sessions file under section 288, Criminal Procedure Code, read with the general admissions made by Sharif Hussain and Kandu in the trial Court." No error of law seems to us to have been committed by the Courts below in any respect and we can see no reason for our interference in the case. We accordingly dismiss the appeal. Appeal dismissed.