P L D 1966 (W (PLP)

KADIR NAWAZ AWAN, J.‑Ramzan son of Muhammad Khan aged 40 years has been convicted by the Additional Sessions Judge, Tharparkar at Sanghar under section 302, P. P. C. and sentenced to death for murdering his own daughter Mst. Nooran (she is alleged to be 10‑11 years old) on the morning of 3‑2‑1964 in his house in village Chutto Khan Bagrani, Taluka Shahdadpur. His appeal and reference under section 374, Cr. P. C. have come up before us and we propose to dispose of these under this judgment.

2. Prosecution case, as stated in the first report, (Exh. 5) is that appellant Ramzan, his father Muhammad Khan (informant) and his uncles Sumar and Allahyar reside in separate houses which are within the same enclosure. On the day of the incident Achar who resides about a mile away from this village and is uncle of the appellant Ramzan had come to this village to borrow a pair of bullocks. He heard cries coming from the house of appellant Ramzan and accordingly rushed there. He found Mst. Nuran lying murdered there. Allabyar, Sumar and Sulaiman had secured the appellant Ramzan had on his (Achar's) inquiry they had informed him that the appellant had murdered his daughter Mst. Nuran with hatchet. He found appellant Ramzan carrying a bloodstained hatchet He had informed Achar on his inquiry that he had murdered his daughter Mst. Nuran as she had delayed in preparing food for him. At the advice of Allahyar and others he went to Shahdadpur where informant Muhammad Khan had gone to pay land assessment. He conveyed this information to him and thereafter Muhammad Khan went to Shahdadpur Police Station where he lodged his report at 12 noon. It is Exh. 5.

3. Usual inquiries were made by the police. First report Exh. 5 was recorded by Muhammad Siddik Head Constable Police. Muhammad Rafique A. S. I. Police thereafter visited the scene of offence, prepared its Mashirnama Exh. 15 and secured blood‑stained hatchet and clothes of appellant Ramzan under Mashirnamas Exhs. 17 and

18. Report Exh. 21 of the Chemical Analyser shows that blood had disintegrated and hence its origin could not be determined. After the completion of this necessary inquiry interim challan was filed on 18‑12‑1964.

4. Appellant Ramzan when questioned in both the Courts below regarding these allegations had made a complete denial. His case was that police had arrested him a day after the incident though he was available in his house on 3r2‑

64. The case stated by him in the committal Court is that on that day he had left his house for his lands early in the morning and it is about one mile away from his village. He was informed there about the murder of his daughter Nuran from one Brohi. On reaching his house he found Allahyar, Sulaiman, Muhammad Sumar and others who had already reached. They made searches for the culprits by tracing the footprints but they failed in this respect. Sulaiman was then sent to Shahdadpur to inform police who met him on the way along. with Muhammad Khan. Sulaiman informed Muhammad Khan about the murder of Mst. Nuran. He suspected Laik and Maulabux‑ for this murder and they were actually arrested by the police. Laik is son of P. W. Achar. He had promised to give Mst. Nuran in marriage to Laik but subsequently this arrangement had failed. Due to it both Achar and Laik had got annoyed with him. Production of hatchet and clothes had been denied by him in both the Courts below. No witness was examined by him in defence.

5. Murder of Mst. Nuran has been proved beyond a shadow of doubt. In fact it is not under dispute. Appellant Ramzan has admitted in both the Courts below that she has been murdered. Medical evidence Exh. 24 shows that Mst. Nuran had received t as many as 7 injuries. Dr. Mir Beg who had conducted post‑mortem examination on her dead body had opined that all these injuries were ante mortem and appeared to have been caused by sharp cutting weapon like hatchet, except injury No. 7, which, according to him, could be due to fall. He had further added that death of the deceased was due to shock and hemorrhage and injury in the brain matter, and lastly, that injury No. 1 individually and remaining injuries collectively were sufficient in the ordinary course of nature to cause death. There is the ocular evidence on record regarding the murder of Mst. Nuran. We find all this evidence sufficient and satisfactory and hold that she had died as a result of these injuries.

6. As regards the guilt of appellant Ramzan for murdering his daughter Mst. Nuran, we, on examining the record, have found that there is no legal proof. Evidence adduced by the prosecution is neither sufficient nor satisfactory. All the prosecu?tion witnesses have failed to support the prosecution case in this respect. It was urged before us that parties are closely related to each other and hence all these witnesses have resiled from their true versions and have tried to exculpate appellant Ramzan. Informant Muhammad Khan is father of the appellant while prosecution witnesses Achar, and Sumar are his uncles, P. W. Sulaiman is his brother and lastly P. W. Dodo is his caste fellow. They were material witnesses who had been examined by the prosecution to prove the guilt of the appellant Ramzan for murdering his daughter Mst. Nuran. While narrating the facts, we have already referred to the contents of first report Exh. 5 which was lodged by Muhammad Khan. He has even resiled from it. He had stated in the trial Court that Achar who is his brother had not informed him that appellant Ramzan had murdered his daughter Mt. Nuran. His evidence further shows that the contents of first report Exh. 5 are not correct. He has also supported the version of appellant Ramzan that Laik and Maulu sons of Achar were detained by police. Next witness is Achar. Prosecution case in that he resides about one mile away from the scene of offence and on the day of the incident had gone there to borrow a pair of bullocks. Sulaiman had informed him about the murder of Mst. Nuran but had not mentioned to him the name of the culprit. He went to Shahdadpur and informed Muhammad Khan. In cross‑examina?tion he had stated that there were only talks with appellant Ramzan regarding Mst. Nuran and there was no betrothal. Statement made by him under section 164, Cr. P. C. was admitted and it is Exh.

7. Its perusal shows that Sulaiman had informed Achar that it was Ramzan who had murdered his daughter Mst. Nuran. Next witness is Sumar Exh.

8. He too has resiled from his version given in his statement in the lower Court and this statement was brought on record under section 288, Cr. P. C. and he was declared hostile. In the trial Court he had stated that he had not found appellant Ramzan in his house, though he had stated before the committing Magistrate that Ramzan with hatchet was present in his house. He had made similar state?ment under section 164, Cr. P. C. and it is Exh.

10. Dodo is caste‑fellow of the appellant. He too had stated in the trial Court that be bad not found appellant Ramzan in his house though he had admitted his presence when he was examined under section 164, Cr. P. C. His statement was accordingly brought on record and it is Exh.

12. Last witness is Sulaiman. He too has not supported the prosecution. His evidence is to the effect that he bad not found appellant Ramzan in his house. He has denied to have informed Achar that appellant had murdered his daughter Mst. Nuran, or to have asked Achar to go to Shahdadpur to inform Muhammad Khan" about it. This is the entire ocular evidence which has been adduced by the prosecution in support of its case. It is clear, as pointed out above, that none of them has implicated appellant Ramzan for murdering Mst. Nuran. The learned Additional Sessions Judge, while convicting the appellant Ramzan has mainly relied upon their versions under section 164, Cr. P. C. P. W. Sumar had made a statement in the lower Court implicating the appellant and accordingly it was admitted in evidence under section 288, Cr. P. C. and is Exh.

9. It is correct that if the trial Court finds that such a statement of a witness is true it could be treated as a substantive piece of evidence and conviction of an accused person can a based on such a statement made before the committing Magistrate even though the witness has resiled from it before the trial Court. A witness can be cross‑examined regarding his previous statement and it is permissible under section 145; Evidence Act. An accused person can take advantage of this provision and cross‑examine a witness to test the veracity of his statement made before the trial Court. Section 155 of this Act refers to impeaching the credit of a witness and its clause (3) lays down that this could be done by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. Last section in this connection is section

157. It is for the benefit of the prosecution. It lays down that former statement of a witness may be proved to corroborate later testimony as to same fact. In the present case witnesses have resiled from their statements either made under ‑ section 164, Cr. P. C. or made before the committing Magistrate and the Additional Sessions Judge has admitted the same and treated it as substantive piece of evidence against the appellant Ramzan which is not permissible under the law referred to above. Contradicting a witness by a previous inconsistent statement of his is usually and often an affective mode of discrediting him under section 145, Evidence Act which lays down the procedure for impeaching the credit of a witness referred to under section 155(3) of the same Act. First report stands on the same footing as any other extra judicial utterance. It is not therefore a substantive piece of evidence in the present case but it may be used either under section 145 to contradict ,4 the testimony given by the informant in Court or under section 157 to corroborate the testimony of the informant. As a result of this discussion we find that there is no satisfactory ocular evidence to implicate the present appellant for murdering his daughter. All the witnesses had reached the spot on hearing the alarm and had found appellant Ramzan carrying a bloodstained hatchet who had informed them that he had murdered his daughter Mst. Nuran because she had delayed in preparing meals for him. None of these witnesses has supported the prosecution, on this point and the reason is apparent. It is correct that she was murdered in the house of the appellant, but this fact by itself will not incriminate him as he is the inmate of the house and it belongs to him. Report of the Chemical Examiner Exh. 21 shows that blood had disintegrated on the clothes and the hatchet secured from appellant Ramzan and hence its origin could not be determined. It is correct that in the absence of such positive finding it could be used as corroborative evidence provided there is the ocular evidence, i.e., this particular hatchet was used by the culprit in causing the murder or that these were the clothes which he was wearing at the time of incident. In this particular case this evidence is absent. There is no other circumstantial evidence. It appears to us that material facts have been suppressed by the prosecution. All witnesses had stated in the trial Court that the age of the deceased Mst. Nuran was 11 years at the time of her murder. This fact does not appear to be correct. According to the medical evidence, Exh. 24, she was about 16 years old, and further that the vagina contained whitish fluid. Both these facts have been deliberately suppressed from the Court for obvious reasons.

7. For all these reasons we allow the appeal and set aside the conviction had sentence of death passed against him. He is in custody and should be released forthwith, if not required in any other case. We had delivered oral judgment on 7‑7‑

65. We have given reasons for it in this judgment. K. B. A.?????????????????????????????????????????????? ??????????????????????????????????????????????? Appeal accepted.