P L D 1953 Federal Court 317 (PLP)

ABDUL RASHID, C. J., M. SHAHABUDDIN AND A. R. CORNELIUS, JJ.‑This is an appeal by special leave brought before this Court by one Sarfraz Khan, who was convicted under sections 302 and 307 of the P. P. C. and sentenced to death under the first, and to ten years' rigorous imprisonment under the second count, by the Sessions Judge of Montgomery. Two other co. accused, named Ramzan and Sharif, were acquitted. On appeal, the High Court confirmed both the convictions of Sarfraz Khan, but altered the sentence of death to transportation for life, to run concurrently with the other sentence. The conviction relates to an incident which occurred at 11‑30 p.m. on the night of the 27th December 1949, at the brother house of one Khair Din, in the prostitutes' quarter of the town of Montgomery. Sarfraz Khan accompanied by two servants, Ramzan a driver and Sharif, went to his house in his motor car on the evening in question, and listened to music provided by Mst. Gulzar Begum, one of the seven or eight daughters of Khair Din, until 11‑0 p.m. At the conclusion of the music, Sarfraz wished Mst. Gulzar Begum to accompany him to his own house. Sarfraz Khan states it was for an innocent purpose; Khair Din gives a different version. Khair Din refused to send the girl, and it is the prosecution case that she herself was unwilling. She had had dealings with Sarfraz Khan before, and she and her father were both angry with him for not having kept his promise to make certain payments, apart from which the girl was in love with one Dost Muhammad whom she married after this incident, and I "hated Sarfraz". The latter threatened to use force. It is said that he and his servants started to beat Khair Din, apparently without causing injury. Two persons intervened to save him, namely the deceased Yusuf and the injured person Saeed Ahmad. Saeed Ahmad was married to a sister of Mst. Gulzar Begum, while `; Yusuf was intimate with another sister of Gulzar Begum named Mst. Elahian. In the words of Khair Din "between Mst. Elahian and Yusuf there had been a great deal of love." It is at this point that complexity arises in determining the facts. There are two versions, both of which appear out of the prosecution evidence, and the testimony of certain persons, principals in the affair, who had to be examined as "Court wit nesses". The defence produced no evidence. Sarfraz Khan and Ramzan admitted their presence at the spot, and while admitting that the alleged crime revolver belonged to Sarfraz Khan, neither admitted having fired it. Ramzan admitted having received a pistol‑shot wound at the spot but professed ignorance as to how he received it. Sharif admitted his presence : no active part in the incident was attributed to him. The Courts below have believed that Sarfraz Khan was carrying the revolver himself, and high handedly fired at Yusuf when the latter intervened to save Khair Din. The bullet went through the left front quarter of the head. Then Sarfraz fired three shots at Saeed Ahmad who intervened to save Yusuf. The bullets were embedded in his chest. The other version was that Saeed Ahmad assaulted Sarfraz Khan and knocked him down in a gutter, and at the same time Yusuf fired a shot with a pistol which went through Ramzan's left wrist, whereupon Ramzan, who was carrying his master's revolver drew it and fired the four shots. The former version follows the account contained in the initial report allegedly made at 0‑15 a.m. at the Thana two furlongs away, by the Chowkidar of the area, Khushi Muhammad. This man has repudiated the report, and in evidence supported the latter version. The three accused persons appeared of their own accord at the Thana at 0‑45 a.m. What they said to the Police cannot, of course, be used as evidence. Reserving further statement of facts for the present, it will be convenient here to state the substance of the charges which were framed by the Committing Magistrate, and which were not altered at any stage thereafter. The charges set out that Sarfraz Khan, Ramzan and Sharif had a common intention, namely, "to murder and to take away forcibly with you Mst. Gulzar", and that in furtherance of this common intention, Sarfraz Khan intentionally caused the death of Muhammad Yusuf by firing at him with a revolver, and in addition, intentionally shot Saeed Ahmad with the same revolver, under such circumstance that if death had been caused, the offence would have been murder. The Sessions Judge held in unequivocal terms that no case of com mon intention had been proved, and accordingly acquitted Ramzan and Sharif. On the evidence, he concluded that it was "Sarfraz accused who fired at Yusuf and Saeed Ahmad and not Ramzan accused". It should be mentioned that this learned Judge com menced the examination of the prosecution case with the observation that "evidence on behalf of the prosecution is of mixed value". The assessors had unanimously declared that it was Ramzan who fired the revolver, and that he did so to self‑defence but this opinion was not accepted by the learned Judge on the ground that there was "no evidence at all to show that Yusuf first fired and Ramzan shot in self‑defence". This statement is factually incorrect. Both Khushi Muhammad, who was examined as a prosecution witness, although he was declared `hostile', and Khair Din who was examined as Court witness No. 2, swore that Yusuf fired the first shot. The grounds on which the conclusion of the learned Sessions Judge proceeds may be stated in his own words. He said :‑‑ "The weapon used was that of Sarfraz. His coat was blood stained. He had started the fight. No injury is shown to have been received by him at the time of occurrence. Every prose cution witness, including those, who have turned hostile, in the first instance, mentioned Sarfraz, as the assailant as did also the deceased. Three witnesses of whom one is the injured one bear testimony in Court to Sarfraz having fired at Yusuf deceased, and at Saeed Ahmad. As for the offence committed by Sarfraz accused, he came with a loaded weapon, determined forcibly to take Mst. Gulzar Begum away and fired at those, who came in his way." Sarfraz Khan explained that the bloodstains on his coat were received when he helped the wounded Ramzan into his car im mediately after the occurrence. The learned Judge had held earlier that there was a "fight", in the following passage :‑ "After the music was over, these people kept sitting for some time. Then Sarfraz asked Mst. Gulzar to go with him and she refused. Sarfraz tried to be high‑handed and a quarrel between him on one side and Yusuf and Saeed on the other began. They came out fighting on the road, and Sarfraz snatched his revolver from Ramzan and fired at Yusuf on the forehead and Saeed on the chest." There is an obvious inconsistency between this account, and the later finding that Sarfraz Khan "came with a loaded weapon determined forcibly to take Mst. Gulzar Begum away." The earlier finding is clearly to the effect that the "loaded weapon" was carried by the party in no abnormal way, but was brought into use in the course of fight, and that such use was not within exception 4 to section 300, P. P. C., because it amounted to taking "undue advantage" and acting in a "cruel and unusual manner". The Sessions Judge does not believe that Sarfraz Khan was knocked down, but concludes that Ramzan was carrying the revolver, which Sarfraz Khan "snatched" from him. On the other hand, the learned Judges of the High Court have expressly held that Sarfraz Khan was knocked down by Saeed Ahmad, but have not expressed any view as to who had the revolver just before the shooting took place. As will be seen later, there is some evidence to show that this person was Ramzan. As regards the direct evidence of the incident the position is much less satisfactory than it appears from the Sessions Judge's final conclusion to be. Before proceeding further with this case, we consider it desir able to repeat, what has often been said both by this Court as well as by the Judicial Committee which it has replaced in relation to Pakistan appeals, that this Court does not function "in the free fashion of a fully constituted Court of criminal appeal". In order that it should interfere with a conclusion reached by a High Court, particularly if the conclusion is in accord with that of the trial Court or other subordinate Court, it is necessary that there should be such a disregard of the forms of legal process, or such a viola tion of principle as amounts to a denial or perversion of justice. A The disregard or violation should not be merely technical to character ; it should be both grievous as well as substantial. Lastly, it is necessary that resultant injustice of a serious and substantial character should appear. Unless the violation of procedure or principle be such as, in law, vitiates the entire proceeding, interference will be on the basis of ascertainment and elimination of the effect of the error, and findings reached on evidence duly received, by a correct method of approach and appraisement, will be respected, notwithstanding that this Court might itself have taken a different view of the same evidence. In the present case, although the findings of the Courts below are concurrent, they have not been reached on the same evidence. A great deal of additional evidence, including a sworn statement of the acquitted person Ramzan was received in the High Court, on which certain categorical conclusions have been founded which have a strong bearing on the fundamental question of the guilt of Sarfraz Khan. Nor has the approach to the allegations fn the case, or to the evidence been the same in the two Courts. The Sessions Judge viewed the evidence with some degree of caution, consistently with his prima facie opinion that the evidence was of "mixed value". The opening wordy of the High Court judgment convey a wholly different impression, and it is necessary to quote them in full, to appreciate the nature of the enquiry which we have been obliged to make in this case. "This case, which comes to us on appeal from a conviction of murder and reference for confirmation of a death sentence and is the first of its kind in the experience of every one concerned, in is a remarkable illustration of how money may thwart the course of justice, screen the real murderer and induce a completely innocent man voluntarily to let a bullet pass through his body and to take the halter round his neck. The actual murderer is Muhammad Sarfraz Khan, a wealthy Zimindar of Montgomery, and the man who from feelings of loyalty for his master or temptation agreed to be shot through the wrist and almost walked up to the gallows is his chauffeur Muhammad Ramzan." There is no proof whatsoever that any money was given or received by any of the principal actors in this case. A suggestion made to one witness that he had received a large sum of money was repudiated by him and was not supported by any evidence. The description "completely innocent man" is applied to the driver Ramzan. His innocence is clearly a matter of judicial finding i.e., a conclusion reached on the basis of "high probability" at the best, and it cannot be ignored that there was a good deal of sworn testimony to the contrary. The statement that he allowed a bullet to be passed through his body is based on no evidence, except that the wound could be self‑inflicted or suffered with consent, and there is sworn testimony to the effect that he sustained it at the hands of Yusuf on the spot. The statement that Ramzan was induced "voluntarily to take the halter round his neck" seems devoid of all foundation in the evidence. Ramzan never at any stage accepted responsibility for the fatal or any shots, and to say that he "almost walked to the gallows" seems clearly inconsistent with the fact that before ever the trial was com menced, the processes of justice had practically relieved him of any such danger, by its being clearly stated in the charge that Sarfraz Khan was responsible for all the shooting. These categorical propositions formulated at the very com mencement of the judgment indicate with clearness what were the underlying belief's in the minds of the learned Judges when they approached the task of appraising the evidence. That evidence was tainted with doubt and perjury to a remarkable extent, as appears clearly from the judgments of the Courts below, and needed to be reviewed in a thorough and careful manner. Each of the beliefs so strongly expressed by the learned Judges goes to the exoneration of Ramzan, and to the implication of Sarfraz Khan. Such a mode of approach entails serious risk of prejudice to Sarfraz Khan, the more so as the beliefs were largely, in the judicial sense, unfounded. The learned Judges of the High Court fixed for themselves, as the only question following for decision in the case, the following proposition viz.: "Whether the revolver was fired by Muhammad Sarfraz Khan or by Ramzan". The charge being clearly to the effect that the firing was by Sarfraz Khan, the adding of an alternative in the question was not strictly justifiable, and, as the case had proceeded was clearly calculated to cause prejudice. It is true that the case as placed in the challan before the Committing Magistrate by the Police was that Ramzan did the firing, and the Magistrate was requested to discharge Sarfraz Khan and Sharif on the ground of their innocence. At that stage, no doubt, the Crown was interested to establish, as an affirmative proposition, that Ramzan fired the shots, and that a sustained effort towards this end was made is shown by the fact that nine witnesses were examined who stated to that effect, while only two namely, Mst. Gulzar Begum and a chance witness Bahadur Khan deposed that it was Sarfraz Khan who fired. But the Magistrate having the exclusive authority to settle the terms of the charge, believed the latter, and drew up the charge accordingly. It appears that the calendar of witnesses was confined to those persons who would support this charge, for the record does not show that the Public Prosecutor asked for any witness not named in the calendar to be called, or gave up any witness named in the calendar. In other words, from the time when the commitment order was made, the Police abandoned the attempt to show that Ramzan used the pistol, and the pro secution at the trial confined itself to presenting and pressing only the case that Sarfraz fired. Khushi Muhammad, who allegedly made the initial report was a necessary prosecution witness : he supported the version that Ramzan fired, and was cross‑examined as hostile by the Public Prosecutor. The two principal actors in the affair, namely, Khair Din and Saeed Ahmad had not been included in the prosecution list of witnesses, as they had both exonerated Sarfaraz Khan before the Committing Magistrate. They were called by the Court to give evidence, and while Khair Din adhered to his earlier statement, Saeed Ahmad deposed against Sarfaraz Khan, exonerating Ramzan. There is not a scintilla of evidence on which the slightest reliance can be placed for holding that at the trial Khushi Muhammad or Khair Din was deposing as a partisan witness or was under any influence prejudicial to justice. It has been necessary to narrate these matters in full in order to establish the point that, at the trial, no person or party was visibly interested to establish affirmatively that Ramzan used the revolver. A vague hint to this effect appearing in a "written statement" filed by Sarfraz Khan before the Committing Magistrate i.e., that whatever Ramzan did, he did in the right of self‑defence, was never followed up in the evidence. No witness was cross‑examined on the basis that in his or her presence, Ramzan used the revolver: their being questioned about earlier recorded statements to this effect is quite a different matter, going to their own credibility, and not to the question of fact involved viz., that Ramzan fired. No defence evidence was led. As to the "written statement," the learned Judges have them selves found that it does not "expressly say that Yusuf dis charged any firearm on Ramzan" or that Ramzan fired the revolver. The statement does not specify what was done by Ramzan at all. It is true also that in his judgment the Sessions Judge has declared it to be the "defence case" that the affair took place immediately after the music was over, and that in the course of the fight, Ramzan fired. These conclusions rest on the evidence of two or three witnesses, but find no support in anything said by the accused persons, or anything put to the eye‑witnesses in cross‑examination. The Sessions Judge as indeed concluded that "it was Sarfraz Khan, accused, who fired at Yusaf and Saeed Ahmed, and not Ramzan, accused, whose injury was not even received by him at the time of occurrence", but he has not been at any pains to elucidate the version that Ramzan fired, or to scrutinize the evidence in support, except in so far as it was relevant for the purpose of answering the question "did Sarfraz Khan shoot Yusaf and Saeed Ahmed". In so doing, he acted rightly. The learned Judges of the High Court took a completely different view on this point which appears with clarity from the conclusion they have expressed in the following words, after examining three circumstances which will be mentioned im mediately :‑ "Now if this statement of Ramzan is accepted as true, it shows quite clearly, and as we have said quite conclusively, that the alternative theory that it was this mar who fired the revolver becomes wholly untenable, and if there be only two possible hypotheses before the Court one of which is disproved, the other must be held to be proved". (Ramzan's statement referred to above was that he could not fire a revolver at all). It needs stressing that the case which Sarfraz was called upon to meet at the trial was that he himself had fired the shots there was no alternative case, and neither was he called upon to prove that Ramzan had fired, nor did the prosecution take it upon itself to establish (a) that the crime could have been committed by no one else except Sarfraz Khan or Ramzan and (b) that it was not committed by Ramzan, [vide Illustration (b) to section 11, Evidence Act]. If (b) had been undertaken by the prosecution, the learned Judges would not have been under the necessity of relying so completely for the purpose of reaching this conclusion, on the mere ipse dixit of Ramzan, as against the evidence of a Lt. Col. Roshan Ali Shah, and of several of the witnesses, deposing that they had actually seen him firing. A question which has been raised on this part of the case is whether Ramzan, having been an accused person at the trial was a competent witness. A decision of a Single Judge of the Lahore High Court, Dulla v. R. (I L R 7 Lah. 148) has been cited for the appellant, to the effect that an appeal is a continua tion of the trial, and it was wrong procedure to record the evidence of a co‑accused person who had been convicted on his own confession at the trial, as additional evidence during the pendency of the appeal of another convicted accused person. We find no bar in the statute against recording the evidence of an acquitted co‑accused person at any rate at the appellate stage but would here refer to clear exposition of the English g practice in such cases at p. 466 of Arch bold's Criminal Plead ings Evidence and Practice, 32nd Edition, which we conceive to be a suitable guide for the Courts in Pakistan. An acquitted statement on oath before the High Court that he could not fire al revolver and knew nothing about the weapon. We cannot conceive that this mode of finding conclusive answers to questions arising in cases of serious crime is warranted by the law. If the guilt or innocence of persons tried for criminal offences were made a mere matter of canvassing of such probabilities, the work of criminal Courts would no doubt be greatly simplified. The judicial duty is, however, to act in accordance with law, that is to say on evidence duly admitted and tested according to recognised principles. If we here suggest certain answers to these propositions of probability raised in the judgment of the High Court, we must not be understood to be doing so in any sense which may be decisive of the case. As regards the first circumstance, we were made aware during the arguments that in the Punjab, it is common practice for wealthy landowners to be accompanied by retainers who carry their personal weapons, e.g., guns or revolvers or words, wherever they go. It is no far‑fetched presumption that the retainer is capable of acting as a body‑guard, and, therefore, may be trained to the use of the arms besides having the duty of carrying them. A retainer's function as a body‑guard might very well be attracted when he sees his master being man‑handled and thrown into a gutter, by persons of low‑degree, such as hangers‑on of prostitutes, who are at the same time carrying violence to himself. In the circumstances he may, well fire, say, a revolver. and depending on his judgment of the danger, may fire several shots. As regards the second circumstance, the learned Judges appear to have misdirected themselves. Whether the case be that the party of the accused persons had just been pushed out of the brothel, or that they were trying to force their way in (for the incident occurred in the street just outside the door of the brothel), the evidence sustains no other conclusion but that Ramzan was facing the others just as much as Sarfraz Khan. There is nothing to show that he stood aside or turned his back, or otherwise border the common front, so to speak. Here it may be mentioned that Khair Din has stated on oath that Ramzan always wore his master's revolver in a holster, and that there is a statement by the deceased Yusuf (Exh. PAL) in which he clearly said that Sarfraz took the revolver from Ramzan and then fired at him. The learned Judges have ignored this "discrepancy" as having "no material bearing" on the case, but the statement is not, in our opinion, to be dismissed so lightly. If the weapon was initially carried by Ramzan, not only does this tend to strengthen belief in the evidence that he fired at the others when his master had been knocked down, but in addition, it raises the question whether the drawing and passing of the revolver at the critical juncture, within sight of the prostitute's partisans who had been gaining up to this point, would not have induced them immediately to take evasive action e.g., by running into the brothel through the open door and closing it behind them. No sign of such action appears, and this confirms the likelihood that events moved con tinuously and rapidly up to the climax, when the shots were fired. Therefore, the likelihood is that ho who had the revolver at the start, did the firing, and the "discrepancy" in Yusuf's dying dec laration is far from being immaterial. As to Ramzan's performance in the witness‑box in the High Court‑he appears to have visibly recoiled from the crime revolver‑it does not appear that the learned Judges gave sufficient weight to the probable effect upon his mind of his being recalled, after having been acquitted, along With practically all the Police officers who had investigated the case. The learned Judges themselves had placed the decision of the case on the answer they might find to the double question‑did Sarfraz Khan fire, or did Ramzan ? If the question were indeed an open one, they might have found that Ramzan fired and we can see no bar to their giving effect to this opinion had they reached it, by acquitting Sarfraz Khan and directing' after notice, that Ramzan should be retried, on an amended charge. The calling of the police officers was expressly ordered "in the interests of justice" "as several steps in the investigation of this case require explana tion," and one of those steps was the amended challan, asking for the discharge of Sarfraz Khan and Sharif, and that Ramzan should alone be proceeded against for murder and attempt to murder. Assuming that the question was open, one conclusion which might have been reached was that Ramzan was the actual killer. Therefore, all the circumstances combined to place Ramzan in peril once again. The learned Judges were aware of this, for they gave Ramzan two assurances, when finally asking him whether he could fire the revolver. These werel firstly that there was "no possibility of his being involved in the affair any longer," and secondly that by showing he could fire the revolver "you may be able to render some service to your master". The first assurance appears to have been founded on a statement by an Assistant Advocate‑General that no appeal against Ramzan's acquittal was contemplated. Limitation for an appeal had not yet expired on that date, and the Assistant Advocate‑General's statement was by no mens of binding effect. Moreover, the learned Judges themselves could hardly, at that stage, when the important questions they had themselves framed, were all open for decision, declare that whatever view they might form on the evidence regarding the possibility of Ramzan being guilty, they would not exercise their powers under law to give effect to it if it went against Ramzan, and it is difficult to assume that Ramzan took the just assurance in any such meaning. But the second assurance is‑we say so with all respect‑‑one of a most remarkable type. A witness when he is placed on oath is presumed to be held to the truth by his oath, and more remotely, by the sanctions for perjury. It is a. regrettable fact that witnesses in this country are too often actuated, in giving their evidence, by personal motives unconnected with mere observation and re‑collection of the incidents to which they speak. The mention of "service to your master" appears to us, in the circumstances to have been singularly unfortunate. We are not impressed in the slightest degree by the declaration of the learned Judges in their judgment on this point, in the following words :‑ "We cannot imagine that this man who at one stage had lent his arm to be shot through in order to help his master, should not have utilised the opportunity of rendering him another service by admitting and demonstrating that he could handle the revoler when he himself was under no apprehension of being involved." It is not proved that Ramzan's wound was suffered in this way: it may well have been received in the course of a melee by accident or otherwise, for the shot was fired from close quarters, though apparently not with the barrel in actual contract with the body. As to Ramzan's state of apprehension, we place it at a much higher level than the High Court, for he had never, at any stage of the judicial proceedings, admitted having fired the revolver, and the whole effort might have been undone by an unguarded admission at the appellate stage. The offer of service to his master was, in the circumstances, not a bait for which he would fall. But, in the eye of justice and under the rules of evidence, it was clearly an offer which should never have been made. We have now to take up the task of examining tile additional evidence recorded by the High Court. We do not feel any necessity to consider the evidence of Ramzan any further. Of the remaining nine persons who were examined, only three had been witnesses at the trial, namely Khan Isan Khan (C. W. 2), Dr. Ghulam Haider (C. W. 3) and Mr. Inayat Ali Khan (C. W. 4). The resummoning of the doctor cannot be related to the circum stance, appearing in the first order for additional evidence, that "several steps in the investigation of this case require explanation" for which reasons the learned Judges appeared to leave conducted what may compendiously be described as an "investigation of the investigation". Dr. Ghulam Haidar's evidence was said to be necessary for the purpose of proving a statement allegedly made to him by Saeed Ahmad in the hospital very soon after the occurrence but he was examined on other topics as well. He v‑:, oiiestioned regarding Yusuf's mental condition, and the effect of leis injury upon his powers of association and speech, at very great length and he also stated what Saeed Ahmad had said to him. I his latter account had been recorded in writing by the doctor, and the explanation was given for not producing the writing, namely, that the person, probably a dispenser, to whom it was given was away at Jedda in Saudi Arabia at the time of the trial. On this point the trial Judge had noted that Dr. Haidar had not been questioned about any such statement and further that if any such statement was recorded, it had become useless since "Saeed Ahmad is alive and is open to cross‑examination". The latter view is plot strictly correct for Saeed Ahmad's statement made so shortly after the receipt of his injury would fall within the first part of section 157, Evidence Act, 1872, but there is certainly room for the criticism that in the absence of proper steps having been taken at any earlier stage to procure the statement, or satisfactory explanation for its non‑production its contents could not be proved on the mere recollection of the doctor more than a year after the occurrence. An explanation for the remissness of the investigating authorities may perhaps be found in the fact that, while trace earliest document in which reference to such a statement is made, namely, Exh. P. O. prepared by Mr. Inayat Ali Khan, which purports to be a statement of Dr. Ghulam Haidar, mentions that "as a precautionary measure" he had taken Saeed Ahmad's statement, these last words do not appear in a copy of Exh. P. O. which was contempora. neously incorporated in the police proceedings by Khan Isan Khan, the Investigating Officer. Khan Isan Khan is clear that these words did not exist in Exh. P. O. when he copied it into his zimnis and the statement is supported by the concrete circum stance that the words have in fact been squeezed into the original document. However, Mr. Inayat Ali Khan appearing as a witness was definite that the words did exist in the original. As to the substance of Saeed Ahmad's statement, as reproduced by Dr. Ghulam Haidar, that will be considered in due course. As regards the mental condition of Yusaf, ‑the doctor was quite clear that the injury to the left frontal lobe had affected Yusuf's powers of association, and he deposed clearly that throughout the period that Yusaf remained in the hospital, he had himself been questioning him to test his power of co‑herent thinking and expression, and to the end Yusaf's condition was such that he was unable to make an intelligent and co‑herent statement, in the sense that he mixed up things which were correct with things which were entirely incorrect. The doctor was questioned as to the "silent area of the brain" and although the learned Judges in the High Court have stated categorically that Yusaf's injury was located in this area, that is not in accordance with what the doctor said, and the opinion of the learned Judges, being on a point within the exclusive knowledge of medical experts, would have been better founded on expert evidence or on some text book of acknowledge authority. As it is the finding on this point is contrary to the oral expert evidence available on the record. The contents of Yusaf's statement recorded by the doctor, and its effect, will be considered in due course. Here we pause only to observe that such as it is, the evidence of Dr. Ghulam Haidar might be said to be within the rule that additional evidence should only be called in appeal if it is strictly necessary for the purposes of deciding the case and is also in the interest of justice. Mr. Inayat Ali Khan was also questioned in connection with the supplementary evidence of Dr. Ghulam Haidar and his statement may also be supposed to fall in the same category. The statement of a third Court witness, Lt. Col., Roshan Ali Shah, would also be admissible, in this sense, as being related to the evidence given by Ramzan. There remains for consideration the statements of six Court witnesses namely, the Deputy Commissioner Mr. Anwar‑ul‑Haq, and five police officers viz., Khan Isan Khan, Raja Abdur Rahman D. S. P., Syed Muhammad Ashraf Shah Inspector, Sh. Safdar Ali Sub‑Inspector, and Khan Ata Ullah Khan, Inspector. The conclusions founded upon this evidence may be reproduced in the very words of the High Court judgment. "The question that arises is whether the several Police Officers who expressed the opinion this Muhammad Sarfraz Khan was innocent and that the murderer was Ramzan had arrived at that conclusion honestly or whether they had adopted the device of reporting the case only against Ramzan with soma ulterior motive and merely with a view to saving Muhammad Sarfraz Khan from the consequences of his crime even though that device might have resulted in Ramzan whom we have found to be innocent hanging on the gallows. After questioning the several police officers at length on this aspect of the case and their attention to the relevant material and hearing learned counsel for Muhammad Sarfraz Khan we are definitely of the view that this action of the police officers could not but be dishonest, though we cannot find and can merely guess the reason for it.* * * * * * * * * * * * * * * * * * * * * * * Thus on the material that existed on filth January, it was impossible for any reasonable investigating officer honestly to arrive at the conclusion that the truth was contained only in the subsequent statements of Khushi Muhammad and Muhammad Amir which were inconsistent not with their own previous statements but with the statements of both the injured persons and five other eye‑witnesses, unless he knew unofficially that some of the other witnesses will, for the same reason, fall in line with Khushi Muhammad and Muhammad Amir, an assumption which can be put forward only on the hypothesis that the police knew what was being done to the witnesses and that it had their approval. * * * * * * * * * * * * We have no hesitation in holding that whoever expressed the opinion that 1Vluhantmad Sarfraz Khan was innocent arid that the guilty party was Ramzan could not possibly have arrived that result in fair and honest manner." The declaration made at the very outset that the examination of these persons, five of whom were not witnesses at the trial, was necessary in the interest of justice is certainly borne out by the expression appearing in the first passage regarding the finding of innocence in favour of Ramzan. The investigating officers had proceeded up to a point on the basis of a report that Sarfraz Khan was the man who used the gun, when fresh enquiries were made and in an altered challan, it was declared that Ramzan had fired the gun. In order to find that in so doing, the officers could not possibly have acted honestly, the learned Judges have been obliged to obtain from the mouths of these witnesses all the material which the police officers had before them on particular dates in the shape of statements of persons whom they had examined, of rumour; requests and complaints of deputations and the results of unofficial enquiries. The expression "evidence" cannot obviously be applied to information of this kind in the possession of the police. A few passages will illustrate the nature of the material which the learned Judges were thus enabled to collect. The following extracts are from the deposition of Mr. Anwarul‑Haq, who had no direct knowledge of anything relevant to the case. "Q. Did anyone mention to you on the 28th December that he had seen the occurrence with his own eyes and that the revolver was fired not by Muhammad Sarfraz Khan but by Ramzan? A. I am very doubtful about it. * * * * * * * * * * * * The Sub‑Inspector was probably Khan Isan Khan * * I asked him to be careful because I was told that there were two versions of the incident, one version being that Muhammad Sarfraz than had fired the revolver the other that his driver had done so. Several deputations were coming to me in connection with this case. Muhammad Sarfraz Khan's people were putting forward one version and those of the prostitutes the other." Such questioning is undoubtedly permissible to a person search ing for the truth in an abstract or absolute sense, though, as to its efficacy for the purpose, bona fide doubt is evidently possible. But a judicial enquiry is necessarily of a much more restricted nature. Judicial processes are required to be in accordance with law and the law does not permit the use of hearsay by a Judge in deciding the point before him. Khan Isan Khan who was directly in charge of the investi gation was examined and cross‑examined at great length. The following passages from his statement indicate generally the nature of the examination by the Court. "Q. Did you believe that the occurrence in this case had taken place at 11‑30 ? A. Yes. * * * * * * * * * Q. Did you believe that the first report of the occurrence was lodged at the Police Station at 12‑15 ? A. Yes. Q When you put the challan on 4th did you have any doubt that it was Muhammad Sarfraz Khan who fired the revolver ? A. I had no doubt in the matter at all then. Q. Did you depute an informer to make inquiries after you put the challan on 4th. A. Yes. Q. If you had no doubt in the matter, why did you depute the informer ? A. Because Muhammad Sarfraz Khan was alleging that he was innocent. * * * * * * * * * Q. You must have thought when Khushi Muhammad and Muhammad Amir went back upon their statements that they must have received money from Muhammad Sarfraz Khan in prosecution of the object of this conspiracy ? A. Khushi Muhammad and Muhammad Amir were not in the conspiracy and, therefore, there could be no occasion for them to take money. Q. Did it strike you that Mst. Gulzar Begum and Khair Din must have taken money when they went back on their earlier statements and stated before you that they had implicated Muhammad Sarfraz Khan falsely ? A. As far as I made enquires no money was paid to the two persons and it never struck me that they might have taken money. Q. Did it strike you that Muhammad Sarfraz Khan might have been rightly named in the first information report and that the witnesses might have gone back upon their statements because they had been bribed? A. This aspect of the matter never occurred to me. Q. Did you ever think over the question why should Muhammad Sarfraz Khan have been implicated in the first information report by Khushi Muhammad when he was not a member of the conspiracy ? A. Yes, I discovered that because Khushi Muhammad is a Chaukidar and Muhammad Amir a Lambardar of the Chakla they were influenced by the conspirators in implicating Muhammad Sarfraz Khan. Q. Did it ever occur to you that the police might be accused of having taken money ‑ from Muhammad Sarfraz Khan and of inducing witnesses in going back upon their statements ? A. No. Q. Is it correct that Khushi Muhammad was pressed by the police to go back upon his statement because he was merely a Chaukidar of the Chakla and Muhammad Amir because he was Lambardar of the Chakla ? A. No. Q. When you put in the challan on 12th against Muhammad Ramzan, did you desire that he should be con victed ? A. Yes. Q. As an experienced police officer could you expect his conviction when all the witnesses that you had cited in the challan had stated at the earliest occasion that the revolver was not fired by Muhammad Ramzan but by Muhammad Sarfraz Khan ? A. I did expect Muhammad Ramzan's conviction though I thought that the case against him was weak. Q. If you wanted Muhammad Ramzan's conviction why did you not cite in the challan several other witnesses who had claimed to have witnessed the occurrence and seen Muhammad Ramzan fire with a revolver ? A. There has been a clear error in this respect. I should have mentioned those witnesses in the challan." The legal duty resting on a police officer who has conducted an investigation, in regard to making a decision whether or not to report against an accused person for the commencement of a prosecution, is expressed in sections 169 and 170, Criminal Procedure Code. If it appears to such police officer "that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate", he shall release him on security to attend 9f and when required before I a Magistrate ; if, on the other hand, it appears to such officer A, that there is sufficient evidence or reasonable ground of suspicion, he shall forward the accused to a Magistrate, giving limited bail if the offence is bailable. This is the first case in which, to our knowledge, questions of belief entertained by a police officer, and of his desire to obtain a conviction of a particular person against whom he had investigated charges, have been judicially raised in the course of a trial (for in this case the proceedings in appeal were clearly a continuation of the trial). Certain of the questions addressed to Khan Isan Khan seem to go to his integrity, and all of them appear to cast a doubt upon his judgment or consequences, speaking in a purely prudential sense. We cannot think that such matters can ever be regarded as suitable for judicial investigation in the course of a trial. The salutary rule appears to us to be that which the Judicial Committee purported to lay down in the case of Emperor v. Khwaja Nazir Ahmad (A I R 1945 P C 18) Their Lordships observed as follows : ‑ "The functions of the judiciary and the police are comple mentary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, Cr. P. C. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not uptil then." We express our respectful concurrence with these observa tions, which have direct application to the present case. It is no less important for judicial authority to respect the boundary placed by the Code between the functions of the police and the judiciary, than it is for the police to refrain from interfering in the judicial sphere, and the damage to the cause of justice involved in either violation is of serious and fundamental nature. If the functions are d‑.fined and distinct, it cannot be within the scope of judicial power to supervise, whether in advance or ex post facto, the propriety or expediency of actions by police officers, within the scope of the powers belonging to them under the Code. It appears to us to be clear that the provi sions of sections 169 and 170, Cr. P. C., are intentionally expressed in the widest terms, so as to allow the maximum of discretion to police officers acting under those sections. Some indication) of the manner in which the duty is understood by superior police officers may be gained from the following extract from the statement of Raja Abdur Rahman, the Deputy Superintendent of Police. Q. When you ordered that challan (of 4th January) to be put in, you had no doubt, whatsoever about the truth of the case as stated there ? A. I had my doubts about the truth of the allegation that it was Muhammad Sarfraz Khan who fired the revolver. Q. If you had any doubt in the matter and you still had to investigate the case further, why did you direct the Sub Inspector to have the witnesses immediately examined by the Court ? A. I considered the immediate recording of the state ments necessary lest they should go back upon their state ments to the police. Q. Did you desire Ramzan's conviction when you put in the challan against him on the 12th ? A. Yes. Q. Could you expect a conviction ? A. It is difficult to answer this question. Q. Is it not correct that every eye‑witness mentioned in the challan of the 12th had stated in his earliest statement that the revolver was not fired by Ramzan but by Muhammad Sarfraz Khan ? A. Yes, this is correct. Q. As an experienced police officer could you expect conviction of Ramzan in these circumstances? A. No. Q. If you wished Ramzan to be convicted, why did you not direct the inclusion of four eye‑witnesses who had impli cated Ramzan when you questioned them on the 10th ? A. Nausher Khan, Fateh Din, Muhammad Amin and Muhammad Akram had been produced by the party of the accused at a very late stage of the investigation. I myself doubted the truth of their statements and felt that the. Court would not accept their evidence. Q. Was your conclusion that it was Muhammad Ramzan who had fired the revolver influenced by the evidence of these four witnesses or not ? A. No. Q. Did you suggest that the Court should be requested for the discharge of Muhammad Sarfraz Khan ? A. On that occasion there again was a discussion between the Superintendent of Police, the Prosecuting Agency and myself and we were of opinion and were satisfied that Muhammad Sarfraz Khan was innocent. Q. Why did you not adopt the course that had been adopted when preparing the challan of the 12th, namely, to leave the case of Muhammad Sarfraz Khan to the discretion of the Court ? A. Because we were all satisfied that he was innocent. Q. When Mst. Gulzar Begum and Khair Din, went back upon their statements that it was Muhammad Sarfraz Khan who had fired the revolver, did it strike you that they might have been won over by Muhammad S,arfraz Khan by pay ment of money ? A. The assumption in the question is not correct, because when Mst. Gulzar Begum and Khair Din were questioned by me on the 10th they struck to their original position that the revolver had been fired by Muhammad Sarfraz Khan. Q. You questioned Mst. Gulzar Begum and Khair Din after they had already been questioned by the Sub‑Inspector and stated to him that the revolver had been fired by Muhammad Ramzan ? A. Yes. Q. Did it ever strike you that you were accepting a tremendous responsibility by putting forward the theory of a conspiracy and that you were exposing yourself to the criticism that the police also might have sided with Muhammad Sarfraz Khan after acceptance of illegal grati fication ? A. I was doing my duty in the way that I felt was right and did not care for public criticism. * * * * * * * * * * * * Q. The four eye‑witnesses, who were produced before you by the accused on the 10th, you did not believe ? Khair Din and Mst. Gulzar Begum had alleged before you that it was Muhammad Sarfraz Khan who had fired ; Khushi Muhammad and Muhammad Amir were not, according to the police case, eye‑witnesses of the occurrence ; Bahadur Khan, Shahbaz and Afzal you had not questioned ; on what material did you come to the conclusion that Muhammad Sarfraz Khan had been falsely implicated ? A. According to me, Khushi Muhammad and Muhammad Amir were disinterested witnesses and since they had stated that Muhammad Sarfraz Khan had been falsely implicated, I acted upon their evidence completely ignoring the other circumstances. Q. Did you believe that Khushi Muhammad and Muhammad Amir were eye‑witnesses ? A. According to my conclusion, they were eye‑witnesses. Q. It is then true that you arrived at this theory of conspiracy merely on the statements of Khushi Muhammad and Muhammad Amir recorded on the 10th, and the informa tion given to you by your informer Ali Gauhar and by some other informer deputed by Khan Isan Khan ? A. Yes. Q. When Khushi Muhammad and Muhammad Amir at the very earliest stage had stated that the revolver was fired by Muhammad Sarfraz Khrn, how did you so easily accept their subsequent statements made many days later that it was Muhammad Ramzan who had fired the revolver? A. Because I believed their subsequent statement. Q. Was there any particular reason for you to prefer their subsequent statements ? A. There is no particular reason beyond the conclusions arrived at during the investigation. * * * * * * * * * * * * Q. Had you been told by the Sub‑Inspector that the Deputy Commissioner had directed the police to be very careful in the investigation of the case because a big man was involved? A. No. What I was told by Khan Isan Khan was that the Deputy Commissioner had told him that before we held Muhammad Sarfraz Khan guilty, we must be sure of the crime because there was information with the Deputy Commissioner that the revolver had been fired by Ramzan." Several of the answers reproduced above plainly exhibit viola tion of fundamental rules of judicial evidence. The answer last reproduced contains pure hearsay at what appears to be fourth hand. There are answers which convey the contents of statements made by persons to the police during the course of investigation ; and indeed a great deal of attention had to be devoted to the ascertainment of what "evidence" the police had before them at different stages of the investigation, before the learned Judges could proceed to determine whether there had been dishonesty in challaning Ramzan as the principal culprit. In the course of arguments the learned Advocate General appearing for the Crown attempted to justify these questions and the answers obtained thereto by reference to section 165 of the Evidence Act, which empowers a Judge to ask any question he pleases, about any fact relevant or irrelevant, in order to discover or to obtain proper proof of Q relevant facts. The power is given in very extensive terms for very obvious reasons, but even the wide expressions adopted do not sanction the receiving of evidence which is prohibited under the law. Section 162, Cr. P. C., prohibits the receiving as evidence of statements made by persons to the police in the course of investigation, except under special circumstances which were not in existence at the stage when the evidence under consideration was received. The rule against here say is absolute, except to the extent that it is relaxed by particular provisions contained in the Statute Law, and in any case to obtain hearsay evidence about relevant facts from a person is not equivalent to asking questions about irrelevant facts. We do not propose to reproduce any farther extracts from the additional evidence but will content ourselves with saying that a very greater proportion of this evidence was not evidence in the judicial sense at all and that it was not necessary to receive it for any purpose connected with the decision of the case, certain of the answers given by Raja Abdur Rahman display, as is natural, a more nature outlook than that of Khan Isan Khan in relation to the attitude of the police in accepting or rejecting statements made to them, and the policy which an experienced police officer sets before himself in these matters. It is of course not our purpose to lay down anything of a decisive nature on the subject. Indeed we regret the necessity for a Court to enter into these questions at all, for we have not the slightest doubt that these questions belong to the exclusive domain of the Police Department. In our opinion, it would have been sufficient for the learned Judges in view of the strong doubt they entertained regarding the bona fides of the second challan to have brought the matter to the notice of the appropriate authorities who could no doubt have conducted an investigation into all the facts with much greater freedom than is available in a Court of Law. The matter would have been otherwise if the investigation of the doubt had been referred to a judicial person as a Commissioner, whether under some statutory provision or otherwise. But we cannot conceive that a judicial trial, even as extended to the stage of appeal, can ever properly resolve itself into an investigation of a police 5 investigation. This case itself affords remarkable instances of the errors and excesses which are inherent in the making of any such effort. The learned Judges in coming to their conclusion of dishonesty, appear to have relied largely on what might be described as firstly, considerations of priority in favour of a certain version and, secondly, considerations affecting the eventual success of the case and the police officers themselves. Raja Abdur Rahman has furnished a reply on both points. He preferred the later version and believed it because two persons appeared and deposed before him and he believed what they said notwithstanding that it was contrary to what had been said by them and by a number of other persons previously. Even a police officer may be allowed his judgment in a matter of that kind, and to suggest that he should be guided in all circumstances by a desire to obtain a conviction obviously does less than justice to a force to which great and independ ent responsibilities are entrusted. Raja Abdur Rahman's statement that he preferred to do what he felt to be right, regardless of public criticism, may be regarded as a typical expression of the attitude of, at any rate, certain police officers in this respect. When he said that he wished the statements of the witnesses in support of the first challan to be recorded early because he felt some doubt about the truth of their allegations, we do not understand him to mean necessarily that he wished doubtful or false evidence to be authenticated, but that the sanctions of law, which apply with greater force to statements made to a Court than to police statements should be brought into operation. In the light of these observations, it seems to us a matter for regret, from the point of view of the officers concerned, that the conclusion of the learned Judges should have been expressed to such forceful and un qualified terms. We observe that the learned Judges appear to have retained the impression that those conclusions were of binding effect as against those police officers who had appeared before them. This impression appears very clearly from the following observation contained in their judgment :‑ "We have not examined the Superintendent of Police or the Prosecuting Deputy Superintendent of Police and are not in a position to say to what extent either of them is responsible for the complete somersault that the investigation took after 4th January. Nothing said in this judgment therefore should be considered to be conclusive against them." The matter being essentially outside the judicial purview and within the scope of departmental investigation, we cannot fail to observe that the views formed as a result of the investiga tion by the learned Judges could not be regarded as having in themselves any binding or conclusive force. But it is not only the police officers who can complain of the categorical nature of the conclusions reached in this manner by the learned Judges. The appellant Sarfraz Khan is the person who has, in our opinion, suffered most, as a result of these findings. As has been pointed out, these findings have been connected with the judicial findings in one of the passages cited above and, therefore, the mere fact that the discussion regarding the "investigation of the investigation" contained in the judgment is self‑contained and separable, cannot suffice to show that the investigation has been without effect upon the minds of the learned Judges in relation to their decision to the guilt of Sarfraz Khan. It can well be imagined what an overwhelming effect would be created upon the minds of a jury dealing with the question of the possible guilt of Sarfraz Khan, if such an investigation had been carried on in their presence and at the conclusion thereof a direction had been given to them in terms of any of the three passages which have been cited above, from the judgment of the High Court. To characterise police officers who had, in the discharge of their duty, and after much investigation and frequent conferences, decided that the true culprit was Ramzan, as being devoid of honesty to such an extent that the challans were "a dishonest and deliberate misrepresenta tion of the facts" could not fail to convey to the minds of the jury the strongest possible impression that Sarfraz Khan was guilty. We cannot conceive that, though there is no jury to be impressed in this case, the minds of the learned Judges themselves were totally unaffected in this respect, by their strongly‑held belief that any person who during the investiga tion declared that Muhammad Ramzan was the guilty person, was doing so utterly dishonestly. As the question was extraneous to the case, the possibility of prejudice to Sarfraz Khan becomes at once apparent, and it is apparent also that such prejudice might be of the most serious character. It is our duty now, after having eliminated extraneous and prejudicial matters from consideration to apply ourselves to the question whether on the evidence before the Court, the conclusion could fairly be reached beyond reasonable doubt that the shots in question were fired by Sarfraz Khan. There are, as has been seen, five eye‑witnesses, two of whom namely Khushi Muhammad and Khair Din have declared that Ramzan, and not Sarfraz Khan fired the revolver. It is true that Khushi Muhammad is the maker of the first information report in which it is said that Sarfraz Khan fired. Both he and Khair Din have explained the circumstance in which this version came to be given. Briefly the explanation is that shortly after the shooting, two persons namely Ghazan and Abbas, of whom Ghazan was admittedly a partner in the business of Yusuf, arrived on the spot and these two persons hearing from the witnesses that it was Ramzan who had fired, declared that there was no point in implicating a mere servant and therefore his master, namely Sarfraz Khan who was wealthy should be implicated. Khushi Muhammad goes on to say that he was only asked to thumb‑mark the report which was actually taken down to the dictation of Ghazan and Abbas by the Muharrir Ghulam Muhammad (P. W. 9), This story receive conclusion as to time, or purposely to create a discrepancy. The matter receives further significance from the statement of Khan Isan Khan that he was not present at the thana when the initial report was recorded, but went to the spot on receiving a copy of the report at his house, and it was some time later, at the hospital that he met Abbas and Ghazan for the first time. It is difficult to assess the extent to which reliance can be placed upon Khan Isan Khan in view of the conclusion by the learned Judges that "prima facie primary responsibility" for an attempt to get an innocent man (i.e. Ramzan) hanged in order to screen the real offender (i.e., Sarfaraz Khan) rests on Khan Isan Khan and two other persons. It is true that no adverse remarks have been made regarding the character of the Moharrir Ghulam Muhammad but his subordina tion to Khan Isan Khan is clear, and cannot be ignored. A cir cumstance to which the learned Judges have not adverted and which appears clearly from the evidence of two eve‑witnesses on whom they relied namely Bahadur Khan and Mst. Gulzar Begum is that very soon after the incident a constable arrived at tire spot and took certain steps clearly relating to his duty viz., he helped to take the injured persons inside the house and took down the names of those who were present, including, according to the statement of Bahadur Khan, the man Khushi Muhammad. The thana was only a couple of furlongs away from the spot, and this evidence and in particular the admission that Khushi Muhammad was on the spot when the constable arrived, goes in our opinion strongly to support the possibility that the initial report was not indeed the first intimation received at the thana regarding the details of the occurrence. Ignoring as we must do any statement made to the police by Khair Din, we must, however, refer to a statement Exh. PZ/3 said to have been made by him on solemn affirmation to a Magistrate at Lahore on the 19th January 1950, the day on which Y usaf died in Montgomery. On the same day, the same Magistrate recorded a similar statement by Mst. Gulzar Begum which is Exh. PAB, i.e., to the effect that Sarfraz Khan had fired the shots. It will be convenient at this stage to consider the law relating to the admissibility of these statements in evidence. Under section 157, Evidence Act, 1872 "in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved". Clearly the first part of this section is not applicable, since the fact in question had occurred over 20 days earlier. Nor does it appear that these statements are admissible under the second part, for it is impossible to suppose, bearing in mind the limits of the jurisdiction of the Lahore Magistrate Mr. Aziz‑ul‑Haq Masood, that he possessed any authority in law to investigate the fact of shooting which took place in a different district, [e., Montgomery. Section 157, Evidence Act lays down a rule of restriction of previous statements which may be used for the purposes of corroborating a witness. As reference to section 155 (3) of the same Act will show, a witness may be contradicted by reference to any previous statement made by him in any circumstances whatsoever. It seems plain that the intention of the law is that when the previous statement is to be used for corroboration, it must satisfy certain specified conditions and these conditions, in our opinion, are that the statement should be made in relation to a fact which is so fresh in the mind of the narrator that he may be assumed to be speaking under pressure of the recollection alone, undiverted by any personal motive, or in the alternative he should be speaking before duly constituted authority i.e., the conditions should be such as import proper legal sanctions in case there should be variation from the truth. Applying this principle it would seem that the statement Exh. P. Z/3 is admissible to contradict the contrary evidence given by Khair Din in Court, but the statement Exh. PAB is not available to corroborate Mst. Gulzar Begum's statement, in so far as it relates to the actual occurrence. With reference to these two statements it is admitted that they were made by these persons at the instance of one Mr. Ghulam Bari, an Advocate of Lahore, who also acted as legal advisor to the witness Saeed Ahmad in relation to certain applications made by him viz. Exh. PZ and Exh. PZ/1, the first for cancellation of bail granted to Sarfaz Khan and Sharif and the second purporting to be a complaint, under sections 302, 307 and 34, P. P. C., containing the averment that Sarfraz Khan fired all the shots, and that the local police had dishonestly reported that the shots had been fired by Ramzan. In the circumstances these statements lack the quality of being spontaneous. It is obvious that they were made after an examina tion of the legal necessities, besides the other prudential aspects of the whole affair and to give them the same measure of credence as belongs properly to evidence duly recorded in Court where the deponent is subjected to cross‑examination is obviously an over valuation. The witnesses who spoke at the trial to the fact that Sarfraz alone fired are Bahadur Khan, Mst. Gulzar Begum and Saeed Ahmad. As a result of lengthy consideration of all the matters affecting Saeed Ahmad, the learned Judges have accepted his statement made at the trial and declared that his contrary statement made before the Committing Magistrate was "false on all important particulars" In coming to this conclusion the learned Judges have believed that the statement before the Committing Magistrate was induced by police pressure. On this point it should be mentioned that Khan Isan Khan completely denied having put any pressure on Saeed Ahmad and the latter's father‑in‑law Khair Din clearly stated to the same effect, and indeed added that Saeed Ahmad was living with him, at the time when they both appeared in the Court of the Additional District Magistrate, who conducted the inquiry. It appears that the learned Judges accepted Saeed Ahmad's allegation that he was called to the thana three days before he appeared in the Committing Court, and from there was taken in a car to a village where he was confined, but he did not know the name of the village or even in what direction it was from Montgomery, but only that it was 4 or 5 miles away. This man was a constable in police service for some 13 yeas, and such a degree of vagueness on points of this kind, was not‑ to be expected fronts him supposing that he was to facts within his knowledge, The judgment of the High Court does not contain any examination of this aspect of his testimony. But, in our opinion the ground upon which Saeed Ahmad's statement at the trial should be held totally unworthy of credit in the altogether unusual circumstance of this case is that he made a sworn statement to the contrary effect in the Committing Court, which statement was placed on the record of the trial, along‑side his later statement. It is true that the latter statement is in accordance with what Dr. Ghulam Haider in his additional evidence in the High Court, declared that Saeed Ahmad has said to him on the night of the incident. Certain curious circumstances connected with this earlier statement have already been mentioned, which might cast a doubt upon the fact whether it was ever made. Moreover, it would certainly appear remarkable that Dr. Ghulam Haidar should have remembered the full details of the statement so clearly after so long a period, when he had no memorandum to go by, and is not by any means habituated to recording such statements, for he admits quite clearly that this was the first statement of its kind that he ever recorded. The learned Judges of the High Court have regarded the statement as reproduced by the doctor as being a "complete corroboration" of Saeed Ahmad's evidence at the trial. This conclusion can only have been made upon re collection, without reference to the actual statements, for the following matters which appear in the doctor's account find no place in Saeed Ahmad's evidence viz : (1) that Saeed Ahmad l1ad been sent for from his house by Khair Din through his servant Taini on the ground that he was being resulted by someone and (2) that on reaching the house he slapped or bit the visitor who had insulted Khair Din. In the statement in Court there was no mention of his being sent for and instead he declared that he came out of his house, for a necessary purpose and seeing a crowd in front of Khair Din's house he went there and found Khair Din being beaten by Sarfraz Khan and others. There is absolutely no mention of any blows given by him to Sarfraz Khan, or that it was immediately upon his striking the blow that Sarfraz Khan fired. Instead the statement is that Sarfraz Khan first, threatened to shoot Yusuf unless he got out of the way and Yusuf defined him to do so, whereupon Sarfraz fired and Yusuf fell and when Saeed Ahmad came forward to rescue him Sarfraz fired at him thrice. In the circumstances the degree of corroboration of the evidence afforded by the account obtained from the doctor in his supple mentary examination is far from complete. On the other hand there are features of that account which would appear to support the other version, namely, that Sarfraz was knocked down in the Qutter by Saeed and it was thereafter that shots were fired, not by Sarfraz Khan but by Ramzan. In any case it seems to us perfectly clear that in a matter of this kind it would be extremely dangerous to place the least reliance upon a witness of the quality of Saeed Ahmad. A capacity to make directly contrary statements on solemn affirmation might be thought to be a sufficient disqualification by itself for the purpose of gaining credence in a Court, but with reference to Saeed Ahmad the learned Judges have made observations which import another and even more serious defect of character. They have said :‑ "We also consider that what was put to him in his cross -examination before the Committing Magistrate that a sum of Rs. 5,000 had been paid to him by the relatives of Sarfraz Khan at the baithak of Raja Ali Akbar might well be a fact. Like a shrewd man having taken the money, he has no compunction in accusing the man who had lodged three bullets in his chest and is now anxious to see him receive the penalty of his crime." Such grounds are not available for lending credence to witness who is believed to have received a consideration for giving false testimony on oath. The only proper conclusion for a Court, which entertains the belief that a witness at some stage of the judicial enquiry has been suborned in this fashion, is to regard him as totally unworthy of credit. The evidence of Mst. Gulzar Begum is also to be judged in the light of the fact, proved on the record, that at one stage of the investigation, she had made a clear statement to Khan Isan Khan that Ramzan did the shooting. It is true that this earlier statement is deprived of all value if it he held, in agreement with the High Court, that Khan Isan Khan is "prima-facie primarily responsible" for a deliberate attempt by the police to get an in nocent man hanged so that the real offender Sarfaz Khan should be saved. For the reasons which have already been given we are ourselves entirely unable to accept that finding. It is part of a conclusion, affecting all the police officers who took part in the investigation, which was, in our opinion, entirely outside the scope of the judicial duty in the case, and as such it has no judicial validity whatsoever. It is further vitiated by the plain fact that it rests almost exclusively upon evidence which is not properly receivable in a Court of Law. Therefore on the judicial record the fact is established that Mst. Gulzar did state at one time when expressly questioned as to the person who fired, by the officer who, to her knowledge was investigating the case, that it was Ramzan who fired and not Sarfraz Khan. As has been seen, there are good reasons for doubting the nature and quality of the statement which she made to Mr. Aziz‑ul‑Huq Masood on the 19th January 1950. The learned Judges have placed the admissibility of this statement under section 164, Cr. P. C., and the correctness of this view in law has been challenged on behalf of the appellant. We do not consider it necessary to examine the point in detail, as in our opinion, the signs are clear that the statement was of an artificial nature and may well have been made from motives unconnected with the desire of stating the truth. On the other hand the explanation furnished by Khair Din and Khushi Muhammad for the making of a false report is one which would embrace this witness as closely and completely as it does any other of the persons concerned. And here we may mention that one difficulty which the learned Judges felt in accepting this account, namely, that it was unlikely that Yusuf and Saeed Ahmad who bad been so seriously injured, could have been induced to join in the conspiracy to make a false report appears to be negatived by the clear statements of two witnesses namely, Bahadur Khan and Qasim Ali, the later being a brother of Yusuf, that for a considerable time after they received their injuries Yusuf and Saeed Ahmad were both conscious. As such, they were fully capable of understanding and appreciating the wordly wisdom underlying the suggestion which is alleged to have been made by Ghazan and Abbas. If there is one quality which is to be expected in a successful prostitute, it is that of wordly wisdom. With all respect to the learned Judges who have dealt earlier with this case, we are unable to appreciate how, in respect of the same matter arising out of the business of the brothel, the reliability of the prostitute daughter as a witness should be placed so much higher than that allowed to her father and manager. Afst. Gulzar Begum's expressed aversion towards Sarfraz Khan is another factor to which sufficient attention has not been paid in the Courts below. It remains to examine the evidence of the witness Bahadur Khan. The judgment of the High Court shows that it was con tended before the learned Judges that this man was an interested witness being a motor driver employed by Ghazan to drive lorries in which Yusuf was part‑owner with Ghazan, and secondly that he was in fact not the man of the name Bahadur Khan who was stated to have arrived on the spot at the time of the occurrence in the initial report. The learned Judges did not think that the mere fact of this witness's employment affected his credibility, and they expressed themselves as satisfied that he was the very man who was named in the report, on the basis that he "was questioned on the very night of the occurrence." It is true that, assuming the existence of doubt on the point of identity, such doubt might be resolved on the basis of very prompt appearance before the police who were undoubtedly on the spot within a short time of the occurrence. But the learned Judges appear to have ignored Bahadur Khan's own statement on this point which is as follows:‑ "My statement was recorded by the police next day at about 12 or one in the day." The police officer himself said that he came back to the spot from the thana at 5 a.m. and after conducting a certain amount of formal investigation, recorded the statements of three persons namely Afzal, Bahadur Khan, and Shahbaz on the spot. It may be assumed that this happened, not during the night but when the day was well on. Some light on the subject is also thrown by Abbas (P. W. 7), who says that Bahadur Khan's statement was J, recorded at about 3‑30 a.m. on the spot, but Bahadur Khan him self is perfectly clear that after leaving the spot soon after the occurrence he did not return there during the night. In view of these remarkable discrepancies, nothing can be made of the circumstance of early examination in favour of accepting Bahadur Khan as an eye‑witness. Again on the point of identity one remarkable fact is that Bahadur Khan himself admits that his real name is Khan Bahadur. He belongs to the Rawalpindi side and declares that the name which he gave when he enlisted in the Army was Khan Bahadur and that in his driving licence his name is entered as Khan Bahadur. In the Committing Court he admitted that he was always called Khan Bahadur but some people called him Bahadur Khan. At the trial he went so far as to say "herein Montgomery I am called Bahadur Khan". Abbas is a truck owner and as an associate to Ghazan and Yusuf, has reason to be acquainted with this witness. In his deposition, he has referred to this witness no less than three times as Khan Bahadur, and never as Bahadur Khan. Saeed Ahmad in speaking of him has used the expression "Bahadur Khan or Khan Bahadur" while Khair Din in his statement twice described him as Khan Bahadur and only once as Bahadur Khan. In the circumstances, the necessity arises of searching the evidence once again for some firm indication regarding the identity of this witness, and such an indication in our opinion lay readily to band in the testimony of the witness Khushi Muhammad. For this is the man who, in the initial report, had first mentioned the name of Bahadur Khan, and if there be any person competent to speak as to the identity of the man whom he meant, it must surely be Khushi Muhammad. The learned Judges had accepted Khushi Muhammad's first information as being not an artificial statement prepared by the police at some late stage of the investigation, but a genuine record of what Khushi Muhammad himself had said Khushi Muhammad has declared unequivocally that the person whom he called Bahadur Khan was a talwala or fuel merchant whose stall was a few karams away from the spot. He declared that no other person whether known as Bahadur Khan or Khan Bahadur was present at the spot. The learned Judges were of course inclined to believe that Khushi Muhammad was giving evidence deliberately with the purpose of breaking down the case against Sarfraz Khan, but they appear not to have taken into account that Khushi Muhammad was the only person who could speak with absolute certainty regarding the person whom he meant. The initial report also provides an intrinsic indication to support Khushi Muhammad's stand. In that report mention of Bahadur Khan appears in the following sentence. "In the meantime Muhammad Amir Chaukidar of the Chakla, Malik Shahbaz Khan, Muhammad Afzal and Bahadur Khan also turned up". As has been seen Muhammad Amir, Malik Shahbaz Khan and Muhammad Afzal are in the list of persons whose prosecution was contempla ted by the learned Judges for the offence of giving false evidence by declaring that the shots were fired by Ramzan. The natural thing would be to find that the fourth man, was, so to speak, ejusdern generis, with the other three. Certain admissions of unnatural behaviour by the witness Bahadur Khan render his presence on the spot doubtful. He was there by mere chance, and declared that shortly after the incident, he went away to his own house and did not again go back to the spot till noon on the following day. Such conduct constrasts strongly with that of his employer Ghazan who seems to have spent much of the night in assisting his partner Yusuf. The driver Bahadur Khan could hardly have made himself scarce so easily and successfully. On a consideration of the entire evidence, we have reached the conclusion that there was no reliable evidence in the case on which a finding of guilty against Sarfraz Khan, could have been founded' This conclusion might have been reached on the short ground that, influences prejudicial to the true course of justice commenced to operate at a very early stage, and continued in operation until the termination of the trial. We have only undertaken a detailed exami nation of the evidence of the witnesses out of defence for the exhaustive treatment given to the same evidence in the judgment of the High Court. On our own view of the circumstances there was little to choose between the chances that Sarfraz fired or in the alternative, that Ramzan fired. It is clear that in point of number of witnesses and veracity, the evidence to the effect that Ramzan fired, which may be adduced in rebuttal of the evidence that Sarfraz fired, is almost of equal weight with the latter. We do not consider that the alleged "dying declaration" made by Yusuf to Khan Isan Khan is to be rated, in point of credibility, any higher than other statements made and recorded by police officers in the course of investigations, as firstly the deponent was in no danger of death at the time, and secondly, the detailed and co‑herent nature of the statement itself is entirely inconsistent with Dr. Ghulam Haider's clear evidence that owing to an "association centre" in the left frontal lobe having sustained severe injury. Yusuf was never able to make a reasonable and coherent state ment after he was shot. Even if the evidence to show that Sarfraz fired were free from the serious infirmities which we have noticed above, sufficient doubt was created by the existence of the varying evidence to raise a reasonable doubt regarding the guilt of Sarfraz of the offence charged. Viewed in this light the resolution of the question before the High Court presented no difficulty on the basis of the evidence on the record. The case was complicated at the stage of the appeal by the introduction of two further questions which were calculated to cause prejudice, namely an investigation as to whether Ramzan fired and an investigation as to whether police officers who were at one time supporting the view that Ramzan fired could possibly have acted honestly. We cannot fail to observe that the course of justice in this case has not been assisted by the tacking on of these essentially extraneous questions to that which formed the simple and only point for determination in the case, namely whether the firing was done by Sarfraz Khan. For these reasons we allow this appeal and acquit Sarfraz Khan. A. H. Appeal allowed.