P L D 1975 Supreme Court 179 (PLP)

Muhammad Bilal, Advocate Supreme Court instructed by Sh. Ijaz Ali, Advocate‑on‑Record for the State. Date of haring: 27th March 1975, ANWARUL HAQ, J. ‑While granting leave to appeal on 5‑12‑1973 in jail petitions filed by the three convicts Falak Sher, Dona and Jalal alias Jalla, it was observed that the petition of Jalla was barred by 393 days, and he should be asked to make an application for condonation of delay. He has now made the necessary application, saying that there was no one to pursue the matter on his behalf. As the whole case is under examination in respect of the two co‑accused Falak Sher and Dona, we would condone delay and also consider the case of Jalal on merits. The three appellants were convicted by the Sessions Judge, Sahiwal, for the murder of one Ghulam alias Gami and Mst. Bashiran. Dona and Falk Sher were sentenced to death, whereas Jalal was sentenced to transportation for life. A Division Bench of the Lahore High Court, by fits order dated 25‑9‑1972, has dismissed their appeals, and confirmed the death sentences awarded to Dona and Falak Sher. The three appellants are related inter se as well as to the complainant party. Jalal is the brother of first informant Shams Din (P. W. 9). The appellant Falak Sher is the son of their brother Kamma, and is married to the sister of the appellant Dona, who is in turn, a paternal cousin of Kamma, Jalal and Shams Din. Shams Din is married to Mst. Jindan (P. W. 10), who is a sister of the murdered woman Mst. Bashiran, and a cousin of the deceased Ghulam alias Gami. Mst. Amiran (P. W. 11) is also a sister of the deceased Mst. Bashiran. According to the prosecution, on the morning of 7‑4‑1969, Shams Din (P. W. v), who was then residing at Sahiwal, went to visit his mother‑in‑law Mst. Rajan in Chak No. 108/9‑L. He was accompanied by his wife Mst. Jindan (P. W. 10) and the deceased Gami. On reaching the house of Mst. Rajan, the visitors found that Mst. Amiran (P. W. 11), the deceased Mst. Bashiran, as well as Bashir son of Farid, a maternal uncle of Shams Din were already present there. The three appellants also turned up, and the question of the marriage of Mst. Bashiran deceased came up for discussion. The appellants wanted her hand for Dona appellant, but the girl's mother refused on the ground that Mst. Bashiran's Nikah bad already been performed with one lqbal of Chak No. 103/10‑L. It is alleged that the discussion ended in an unpleasant ultimatum thrown by Dona to ‑the effect that be would forcibly take away Mst. Bashiran, if her mother would not agree to his marriage with her. After about an hour or so, at about 2‑00 p.m. Shams Din (P. W. 9) accompanied by his wife Mst. Jindan and cousin Gami prepared to leave for Sahiwal. His mother‑in‑law Mst. Rajan and his sister‑in‑law Mst. Bashiran also got ready to go with him to Sahiwal. For this purpose ‑they left the house and proceeded towards the metalled road. Bashir son of Farid, and Mst. Amiran (P. W. 11) also accompanied them so as to see them off at the Bus Stand. As the parties were (approaching the metalled road, they were overtaken by the three appellants. Dona was armed with a pistol. Falak Sher with a hatchet, and Jalal with the bahi of a cot. Dona shouted a challenge that he would see how Mst. Bashiran would be taken away. He fired a shot from his pistol which hit Gami in the abdomen and he fell down. Appellant Falak Sher gave hatchet blows to the fallen Gami. All this time appellant Jalal kept on inciting the other two to kill all the members of the complainant party. Jalal then took Mst. Bashiran in his grip and Falak Sher gave her hatchet blows on the bead and face. Mst. Bashiran and Ghulam alias Gami died at the spot. The appellants ran away, taking their respective weapons with them. Besides the members of the complainant party, the incident was witnessed by Said Muhammad (P. W. 12), Manzoor (P. W. 13) and one Farid son of Ahmad. The matter was reported promptly at Police Station Dera Rahim, a distance of nearly four miles, by Shams Din (P. W. 9). The First Information Report was recorded at 3‑00 p.m. by Head Constable Muhammad Ibrahim (P. W. 14). He proceeded to the spot immediately, and was joined at 8‑00 p.m. by S. H. O. Chaudhry Bashir Ahmad, P. W.

15. It appears that all the three appellants were arrested the next day i.e. the 8th of April 1969, although some doubt was created as to the date of their arrest by certain answers given by Mst. Amiran P. W. 11 in cross‑examination. Appellant Jalal led to the recovery of the Danda or Bahi said to have been used by him, whereas appellant Falak Sher produced his blood‑stained shirt and chadar from his residential kotha in the presence of Said Muhammad P. W. 12, the Investigating Officer Bashir Ahmad P. W. 15 and one Gul Sher who was not produced at the trial. On chemical examination both these garments were found to be stained with human blood. The appellant Dona was arrested by Foot Constable Muhammad Siddiq P. W. 7, and he was found to be carrying on his person a pistol alongwith several empties. Foot Constable Muhammad Siddiq handed over these articles to the Investigating Officer in the presence of Khan Muhammad P. W.

8. He also led to the recovery of the hatchet said to have been wielded by Falak Sher. The hatchet was seized from the residential kotha of Dona in the presence of Said Muhammad P. W. 12 and Bashir Ahmad P. W.

15. Gul Sher was also witness of this recovery but as already stated, he was not produced by the prosecution. The post‑mortem examination of the two dead bodies was conducted by Dr. Sarfraz Ahmad, Medical Officer, at the District Headquarters Hospital, Sabiwal, on the 8th of April 1969. He found two entrance and one exit fire‑arm wounds on Ghulam alias Gami besides five incised injuries one of which bad cut the neck in the middle. On the body of Mst. Bashiran, the Doctor noticed two incised wounds on the face and the forehead. The three appellants pleaded not guilty at the trial but did not produce any defence evidence. Dona asserted that he had been falsely implicated by Shams Din P. W. 9, who harboured a grudge against him on account of an incident relating to the abduction of Mst. Daulan by Shams Din. He also asserted that Gami had in fact been killed by Shams Din and certain Khokbars of Chak No. 14 as Gami had been challaned for committing the murder of one Muhammad Khokhar of that Chak but had been acquitted. The appellant Falak Sher also alleged false implication by the first informant Shams Din. Lastly, the appellant Jalla also blamed Shams Din for his false implication, asserting that Shams Din and his wife Mst. Jindan had demanded Rs. 1,000 from him but he could not oblige them. In support of its case, the prosecution placed reliance on the ocular evidence of Shams Din P. W. 9, his wife Mst. Jindan P. W. 10, his sister‑in‑law Mst. Amiran P. W. 11, Said Muhammad P. W. 11 and Manzoor P. W. 13, besides the incriminating recoveries and the medical evidence. At the trial Shams Din, Mst. Jindan and Mst. Amiran completely resiled from the statements which they had previously made during the enquiry proceedings, with the result that the learned trial Judge transferred their previous statements to the Sessions file under section 288 of the Criminal Procedure Code. The recovery witness Khan Muhammad P. W. 8 as well as the eve‑witness Manzoor P. W. 13 also made substantial concessions in favour of the appellants. The learned trial Judge rejected the evidence relating to the recovery of the revolver and the hatchet, but said nothing about the recovery of the blood‑stained clothes at the instance of appellant Falak Sher. He, however, placed full reliance on the previous statements of Shams Din, Mat. Jindan and Mst. Amiran, besides the evidence of Said Muhammad P. W.

12. He accordingly convicted and sentenced the three appellants as already stated. The learned Judges in the High Court have also placed full reliance on the previous statements of Shams Din, Mst. Jindan and Mst. Amiran, observing that these witnesses resiled at the trial owing to their close relation ship with the appellants. They have also relied upon the evidence of Said Muhammad P. W. 12, describing him as an entirely independent and dis interested witness. They have also accepted the evidence relating to the recovery of the blood‑stained clothes at the instance of Falak Sher, and have observed that these recoveries provide corroboration of the ocular evidence against this appellant. They have, however, agreed with the trial Court that the recoveries of the revolver and the hatchet could not be used as corroboration, as the revolver was not connected with the crime by expert's examination and the hatchet was produced not by Falak Sher who is alleged to have used it but by the appellant Dona. They have finally taken note of the fact that Shams Din P. W. 9 had no motive whatsoever to falsely implicate his own real brother Jalal, his nephew Falak Sher and his cousin Dona. On this view of the matter they have upheld the convictions and sentences recorded against the appellants by the trial Court. Leave to appeal was granted in this case primarily to consider the question whether the previous statements of the eye‑witnesses brought on the record of the trial under section 288 of the Criminal Procedure Code, could form the basis of conviction against the appellants without any corroboration. Section 288 of the Code of Criminal Procedure provides that "the: evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the Presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872". The object of this section is obviously to confer a power on the Sessions Judge to treat the evidence given by a witness before a Magistrate as substantive evidence, if he is satisfied that the evidence before the Magistrate is true, and that given before him is not true. The section has been enacted mainly to prevent the accused from tampering with the prosecution witnesses. Before, however, the discretion granted by this section can be exercised, it is necessary that the conditions embodied in the section must be satisfied, namely, that the previous deposition should have been duly recorded, under Chapter XVIII of the Code, in the presence of the accused person, and the witness concerned should be produced and examined in the Sessions Court. The requirement that the previous statement should have been recorded in the presence of the accused contemplates that he has been given due opportunity to cross‑examine the witness. The further requirement that the witness concerned should have been produced and examined at the trial is intended to ensure that the trial Judge is able to satisfy himself of the need to place reliance on the previous deposition in preference to the statement made by the witness at the trial. If the witness is not produced and examined at the trial, the previous deposition may be admissible under section 33 of the Evidence Act, but not under section 288 of the Code of Criminal Procedure. Once the conditions set out in section 288 of the Code are satisfied, the previous deposition made during the commitment proceedings is to be treated as substantive evidence in the case for all purposes subject to the provisions of the Evidence Act. As observed by their Lordships of the Judicial Committee in Fakira v. King‑Emperor 64 I A 148 the effect of this last Qualifi cation is not to limit the purposes for which the evidence can be used; but to ensure that the evidence is not otherwise irrelevant or inadmissible under the Evidence Act. Although the section itself does not prescribe that the witness should be contradicted at the trial by his previous deposition, yet as a matter of common sense and prudence it is necessary that the witness should be cross‑examined, under the provisions of section 145 of the Evidence Act, with reference to his previous statement, before the same is transferred to the Sessions file to be treated as substantive evidence in the case. There is no legal requirement that such transferred evidence must be corroborated by other independent evidence for the purpose of sustaining a conviction. However, as observed by tile Federal Court in Lal and others v. The Crown P L D1954 F C 95 the discretion given by section 288 must be exercised with great c rare, on a careful scrutiny of the two conflicting statements in relation to all the evidence and circumstances appearing on the record and not on mere surmises and conjectures as to possible reasons for the witness having resiled from his earlier statement. While delivering judgment for the Division Bench of the High Court in Imtiaz Rabbani v. The Crown P L D 1956 Lah. 657 Muhammad Yaqoob Ali, J., expressed the view that "in a case where a Court is satisfied that the prosecution witnesses have resiled from their earlier statements to favour the accused, in our view it is not unsafe to accept as true the earlier statements which were made without any extraneous influence. It does not necessarily follow that because the later statement is demonstrably false, there is no guarantee that the earlier was also not false. It will depend upon the facts of each case as to how far consistent with the rule of caution a Court can act on the veracity of an earlier ‑statement". Again, in Ahmi (Ahmad) v. The Crown, a case decided by the Federal Court as long ago as the 27th of October 1954, but reported only recently as 1969 S C M R 837, it was observed that "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). 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 Courts below have given good reasons for accepting and relying upon the said evidence." A similar view was taken by the learned Judges of the Federal Court in still another case, Muhammad Afzal v. The Crown 1970 S C M R

204. The previous statements brought on the record under section 288, Cr. P. C. were regarded as substantive evidence at the trial, but at the same time a note of caution was also sounded. It would be profitable to reproduce here the relevant observations appearing in the judgment of the Court as delivered by Abdur Rashid, C. J:- "Witnesses who make one statement before the committing Magistrate and alter that in material particulars when appearing before the Sessions Judge must in the very nature of things be regarded as unreliable witnesses. It is incumbent on the Court, therefore, to exercise great caution in examining the various statements of such witnesses. If, after careful scrutiny, the Sessions Judge, and the learned Judges of the High Court reach the conclusion that the statements made by the witnesses before the com mitting Magistrate were true, and that these statements had deliberately been altered in favour of the accused at the trial, there is nothing in law to prevent the trial Court and the High Court from relying on the statements made by the witnesses in the Court of the committing Magistrate." In the light of these observations, the learned Judges expressed the view that there were adequate reasons for relying on the statements of the witnesses made in the Court of the committing Magistrate in preference to those made by them in the Sessions Court. It appears to us, therefore, that, in accordance with the provision contained in section 288, Cr. P. C. the statements made by the witnesses before the committing Magistrate are to be treated as substantive evidence at the trial for all purposes, subject, of course, to the provisions of the Evidence Act and the existence of adequate reasons to satisfy the trial Court that such statements ought to be brought on the record and given preference over those made by the witnesses concerned at the trial. It is needless to add that before exercising this discretion the Presiding Judge has to see that the conditions mentioned in the section for transferring these statements to the Sessions file are fulfilled. There is no rule of laws that such statements must be corroborated before forming the basis of a conviction against the accused; nor is there any such rule of practice or prudence prescribed by the superior Courts in the Sub‑continent. All that is necessary is that the veracity of such statements must be judged with care and caution, in the light of the attendant circumstances of the case, including the reasons for watch the witnesses have resiled at the trial from the statements previously made by them during the inquiry proceedings. Applying these principles to the case before us, we are satisfied that the Courts below were right in taking the view that the material witnesses had resiled from their previous statements on account of their close relationship with the appellants. With the passage of time the sense of injury and injustice was overcome by the sense of kinship. Even so, the witnesses were not able to deny the time and the place of occurrence, nor were they able to repudiate the prosecution case altogether. It is also significant that at the time of making the first information report, and at the time of appearing before the committing Magistrate, these witnesses did not have any motive to falsely implicate the appellants in this crime. On this view of the matter, the appellants could safely be convicted on the basis of the previous statements of Shams Din (P. W. 9), his wife Mst. Jindan (P. W. 10) and his sister‑in‑law Mst. Amiran (P. W. 11). However, this evidence does not stand alone in the instant case. Besides these witnesses related to the deceased and the appellants, there is the ocular evidence of Said Muhammad (P. W. 12) who is an independent witness, not connected with the parties in any manner and not having, any motive to falsely implicate any of the appellants. His presence at the spot also appears to be natural. Finally, there is also the recovery of the blood‑stained clothes of the appellant Falak Sher. The learned Judges is the High Court have rightly believed the evidence relating to this recovery. We have already stated that human blood was found on the shirt and the chaddar recovered at the instance of this appellant. On the basis of all this evidence the appellants have been rightly convicted and sentenced. No justification is, therefore, made out for our interference in the matter. The appeal accordingly fails and is hereby dismissed. The learned counsel for the appellants submitted that in view of the judgment of this Court in Ibrar v. The State 1974 S C M R 271 we may consider the desirability of converting the death sentences of Dona and Falak Sher to imprisonment for life, for the reason that they were not able to take advantage of the general amnesty declared by the President of Pakistan en the 23rd of December 1971. The submission is not well founded, for the reason that on the date of the amnesty the sentences of death had not yet been confirmed by the High Court, which order was made on 25‑9‑1972, and accordingly the amnesty was not applicable to these appellants. Tic appellants may, however, approach the executive Government in this behalf, if so advised. S. A. H Appeal dismissed.