1980 PLP 640 (SCMR)

3. The unfortunate incident in which Abdul Majid hacked his wife Mst. Halima (deceased) to death, took place on 30th March, 1973, in their own house. The F. I. R. was lodged by Turpio P. W. 3, the real paternal‑uncle of the petitioner, who lived in a house in the same courtyard as Halima and her husband Abdul Majid, petitioner. According to the F. I. R. at about noon time, on the day of occurrence, the first informant and the three eye‑witnesses namely Umar P. W, 4, Suleman P. W. 5 and Jurio P. W. 6, who were sitting nearby, heard the cries of Mst. Halima, at which they rushed to her house and saw that the petitioner was giving hatchet blows to Mst. Halima, who was seriously injured and died at the spot. On enquiry, the petitioner told the afore mentioned eye‑witnesses that he had demanded meals from his wife but she refused to serve him the meal, and, instead, used abusive language whereupon he gave her hatchet blows. The P. Ws. then caught hold of the accused. According to the prosecution version, as given in the state ments of the remaining eye‑witnesses, recorded under section 164, Cr. P. C. and made before the Inquiry Magistrate, when they reached the accused petitioner's house on hearing the shrieks of Mst. Halima, they saw the petitioner leaving the house with a blood‑stained hatchet in his hand and they also saw Mst. Halima lying injured. They stated further that the petitioner then went to the nearby mosque, leaving the hatchet outside. The witnesses bolted the doors of the mosque from outside. Umar P. W. picked up the hatchet and Turpio P. W. went to lodge the F. I. R. In the evening the witnesses took the petitioner out of the Mosque and tied him. When the police arrived at the spot, the accused as well as the hatchet were produced before it. The appellant was arrested and the hatchet was taken into possession by the investigating Officer who also took into possession some blood‑stained earth from the spot; recorded the statements of the witnesses and sent the blood‑stained hatchet to the Chemical Examiner. On 2nd April, 1973 he produced the appellant before the Magistrate and got his judicial confession recorded.

4. At the trial the prosecution produced four eye‑witnesses and also relied on the recovery of the hatchet ; the judicial and the extra‑judicial confession of the appellant and the medical evidence. It may be men tioned that all the three eye‑witnesses resiled and did not support the prosecution during the trial. Turpio P. W. 3 who is the real maternal uncle of the appellant and maternal‑uncle of the deceased Mst. Halima was not declared hostile as , he had not supported the prosecution case even at the trial. The remaining three eye‑witnesses, Umar, Suleman and Jurio were, however, got declared hostile and were cross‑examined by the A. p. P. as required by section 145 of the Evidence Act. Thereafter on the request of the A. P. P., the statements of these witnesses, before the Inquiry Magistrate, were transferred to the Sessions file under sec tion 288, Cr. P. C. The learned trial Court not only relied on the said statements of Umar, Suleman and Jurio P. Ws. but also on the recovery of the hatchet of Abdul Majid, accused/petitioner produced before the police by Umar P. W. and the fact that the appellant who had been apprehended and tied by the P. Ws. was produced before the Investigat ing Officer on his arrival at the spot. It also relied on the judicial confession of the appellant recorded by Mr. Dur Muhammad, F. C. M., Tando Muhammad Khan, P. W.

7. The learned High Court, however, did not rely on the recovery of the hatchet as no blood was found on it by the Chemical Examiner nor did it rely on the retracted judicial confession as the same had been recorded 48 hours after the incident.

5. It was struneously urged by the learned counsel for the petitioner that the learned High Court bad erred in upholding the conviction of the appellant which is based solely on the testimony of the eye‑witnesses transferred to the Sessions file under section 288, Cr. P. C. In support of this contention he relied upon Thanghai v. State (P L D 1969 Kar. 200) and Muhammad Ahmad alias Murnda v, Stare (P L D 1970 S C 72).

6. We have carefully gone through the evidence on record with the help of the learned counsel for the petitioner, and have also considered the aforementioned legal contention raised by him. It is noteworthy that the murder took place in the house of the appellant in broad daylight at about 12 noon. In the F. I. R. the appellant is named as the sole accused for the murder of Mst. Halima by Turpio P. W. 3 who is none other than his own paternal‑uncle and real maternal‑uncle of Mst. Halima, deceased, It may be mentioned that the complainant, i.e. Turpio P. W. lived in the same compound as the deceased and the appellant. It is also noteworthy that Umar P. W. 4 is the first cousin of the appellant. He fully supported the prosecution story. in his statement before the Police under section 161 as well as in his statement before the Magistrate under section 164, Cr. P. C. He also supported the prosecution case before the Inquiry Magistrate during the commitment proceeding. Of course, he rustled from his earlier statements at the trial but his conduct in doing so is understandable in view of his close relationship with the appellant and the fact that the passage of time has healed the grievance. Having already lost one relative, i.e., Msr. Halima, he did not want the other to be sent to the gallows. Turpio P. W. 3 had obviously refused to support the F. I. R. lodged by himself for the same reason. In view of the fact that these two witnesses, who were closely related to Mst. Halima, deceased, as well as the accused, refused to support the prosecution case at the trial, the other two eye‑witnesses acted likewise because naturally they did not have more interest in the matter than Umar and Turpio.

7. Both the Courts below relied upon the earlier statements of Umar, Suleman and Jurio P. Ws. transferred under section 288, Cr. P. C. The learned High Court, however, rightly declined to rely on the recovery of the hatchet as the same had been found not to be stained with blood. But we feel that the ground on which the judicial confession of the appellant was ruled out, i.e. that it had been recorded 48 hours after the incident. is not very sound as in our view this delay was not so inordinate as to cast doubt on the veracity of the confession. However, the only question on which leave has been granted in this case is as to whether or not conviction of the appellant could be based or upheld only on the statements of the eye‑witnesses before the Inquiry Magistrate which have been brought on the Sessions file under section 288, Cr. P. C, after they had resiled and refused to support the prosecution case at the trial. This question has already been answered by this Court in Falak Sher v. Stare (P L D 1975 S C 179) in which leave was granted on the same point as in the present case. The relevant portion at p. 184 is reproduced below "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 with out any corroboration." While holding that there is no legal requirement that such transferred evidence must be corroborated by other independent evidence for the purpose of sustaining a conviction, the learned Judges also relied upon Muhammad Afzal v. Crown (P L D 1970 S C 72.). It will be useful to reproduce below the relevant observations of the reported judgment i.e., Falak Sher v. State. It has been observed at page 184 at portion marked `A' that ....The objection 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." It is observed further at page 186 that .....It appears to us, therefore, that in accordance with the provisions 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 bought on the record and given preference over those made by the Witnesses concerned at the trial ......... 'There is no rule of law 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 which the witnesses have resiled at the trial from the statements previously made by them during the inquiry pro ceedings. 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 statement of Shams Din P. W. 9, his wife Mst. Jindan P. W. 10 and his sister‑in‑taw Amiran P. W. 11 ," In that case the Court also relied on the observations of Mr. Justice Muhammad Yaqub Ali (as a Judge of the Lahore High Court as his Lord ship then was) in Imtiaz Rabbani v. The Crown P L D 1956 Lah. 657 that "in a case where a Court is satisfied that the prosecution witness has resiled from his earlier statement to favour the accused, in our view it is not unsafe to accept as true the earlier statement which was made without any extraneous influence. It does not necessarily follow that because the later statement demons tratively false, there is no guarantee that the earlier statement was also not false. It would depend upon the facts of each case as to how far consistent with the‑ rules of caution a Court can act on the veracity of the earlier statement."

8. Applying these principles to the present case we feel that the learned Bench of the High Court was justified in maintaining the conviction of the appellant solely on the statements of the aforementioned three eyewitnesses 'transferred under section 288, Cr. P. C. without any corro boratory evidence. Umar P. W. 4 is admittedly the first cousin of the appellant and it is not alleged that he had any motive whatsoever to have implicated the appellant falsely in his statements under sections 161 and 164, Cr. P. C. or before the Inquiry Magistrate. Similarly Turpio P. W. 3 the paternal‑uncle of the appellant had no reason to name him in the F.I. R. as the sole culprit in the case. Obviously they were under the extraneous influence at that time when they made the statements implicating the petitioner, which they had made voluntarily. It appears that subse quently as observed by this Court in Falak Sher v. State "with the passage of time the sense of injury and injustice was overcome by the sense of kinship." Seeing that these two witnesses did not support the prosecution case, the remaining two eye‑'witnesses namely Suleman and Jurio felt no compulsion to continue to support the prosecution case at the trial. Obviously the departure made by the eye‑witnesses from their earlier statements was not because their earlier statements were incorrect and that due to pangs of conscience they had chosen to revert to the truth, at the trial. We are of the considered opinion that keeping all the circum stances of this case in view, conviction of the appellant was rightly based and maintained on the statements of the eye‑witnesses transferred to the Sessions file under section 288, Cr. P. C. In view of the above discussion, we feel that there is no merit in this appeal, which is, consequently, dismissed. Appeal dismissed.