P L D 1971 Supreme Court 751 (PLP)

On appeal by the respondents the learned Judges of the High Court disbelieved Bughdad Shah and Sultan Muhammad on the ground that they were interested witnesses, but without determining their relationship with the complainant. The fact that neither had any enmity with the accused persons to falsely depose against them, a circumstance which the trial Judge had relied was ignored altogether. The recovery of blood-stained clothes from the house of Ayub, respondent, and the production of blood-stained dagger by Dilawar, respondent, were also considered to be of no consequence, because Usman Shah was not believed on the ground that the F. I. R. made by him was belated and there was no occasion for him to accompany the deceased for purchase of pulse seed weighing ten seers. Leave to appeal was granted to consider whether the report Exh. PA/1 was properly excluded by the Courts below and whether the High Court was right in rejecting the evidence of Bughdad Shah and Sultan Muhammad merely on the ground of their relationship. Our examination of the provisions of the Code of Criminal Procedure and the Evidence Act indicates that the report Exh. PA/1 was wrongly excluded from consideration by the Courts below and thereby an important piece of corroborative evidence was ignored. The report reads: "Dilawar Khan, son of Ayub Khan, caste Afghan, resident of Bisak at about 11-30 a.m., on 2-8-1964 reports that today at about 8-30 I was going towards Wond for cultivating the pulse. In the vicinity of Pori Wond my father was making mud and Qasam, son of Hikmat Khan, Hikmat, son of Taus and Mughal Shah son of Gulzada were tilling the fields near about. At this moment, Aman Khan, deceased, son of Suleman Shah, resident of Bisak, while going to village passed in front of me. Because Aman Khan's brother Hakim Khan had abducted betrothed wife of my uncle 4 or 5 years ago, who is still with him. I felt the wandering of Aman Khan hither-thither. With whom I grappled. On my making noise Ayub Khan, accused, my father Qasam, son of Himmat, Hikmat, son of Taus Khan, Mughal Shah, son of Gulzada also reached there. To get rid off from the grappling I took a knife lying on the ground and injured the said Aman Khan. I decamped from the spot and took refuge in the house of Hassan Khan, son of Hawas Khan. After me the above mentioned persons my relatives also came there and took shelter. I can't say whether Aman Khan is severely injured or not. I due to fear came for report. I produce the knife with which I have injured Aman Khan." The report is in substance self-exculpatory and does not amount to a confession within the purview of section

25. The operative part of the report is "in the course of exchange of fist blows I picked up a knife and to save my life injured the said Amanullah with it". Dilawar thus put up a plea of private defence of his person and did not confess to a premeditated attack on Aman Khan, deceased, as alleged by the prosecution. This material part of the statement did not receive proper consider ation of the learned Judges in the Courts below. The fact that the report was lodged an hour and a half before Usman Shah had reported the incident at Police Station, Topi, was also ignored though this circumstance by itself exclude, i ; appli cation of section 162, Cr. P. C. In Shahamad v. The State (AIR 1939 PC47), one of the accused named in the first information report in regard to an offence of murder had lodged a report to the effect that the murdered man had met his death as a result of a certain sequence of events different from the one set out in the First Information Report in which he had . been cited as an accused: There was no definite evidence that investigation under the earlier report had already commenced when the accused made his report. It was held by this Court "that in the context of section 162, Cr. P. C., the word `investigation' must refer to the investigation of the specific allegation of crime already reported and there fore the section can apply only to those statements which are steps in furtherance of the pending investigation. The mere fact that a statement was made during an investigation is not by itself sufficient to bring it under section

162. The question whether a statement was recorded `in the course of an investigation' or not is therefore a question of fact to be decided on the circumstances of each case." and that: "the expression in the course of an investigation occurring in section 162, does not necessarily refer only to the duration of investigation and not the only fact that a . statement is made during this interval does not necessarily bring it under the section, irrespective of the circumstances in which it was made. So to interpret those words is to put the widest possible construction on a provision which has to be construed in the narrowest possible sense as it is a special rule which excludes what under the general law is evidence available to the prosecution." In the circumstances of the case, the report made by the accused was held admissible against him in his trial under the earlier report. Dealing with the application under section 25 of the Evidence Act it was observed: " . . . . . `a confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence' `that an admission of a gravely incriminating fact even a conclusively incriminating fact is not of itself a confession' and that there was no definition of confession in the Evidence Act and that `in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused `suggesting the inference that he committed' the crime'. In the present case the admission of the appellant cannot be said to be a confession in any sense of the term; and consequently section 25 of the Evidence Act was rightly held to be inapplicable to it." This view received support from the decision of the Privy Council in Pakala Narayana Swami v. Emperor (AIR 1939 PC47), that "a confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence that an admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession and that there is no definition of confession in the Evidence Act and that in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused suggesting the inference that he committed the crime". Similarly in Emperor v. Khawaja Nazir Ahmad (711 A 203), it was held that a second complaint made to the Police in the investigation of the first complaint was a first information report under section 154 of the Code as it contained allegations of other criminal activities against a person already accused of a crime. The contention that first of the two complaints disclosed only a non-cognizable offence and the permission of a Magistrate was necessary to investigate it while the second complaint which disclosed a cognizable offence was a statement made during investigation falling under section 162, was rejected in the view that the words: "in the course of an investigation" did not refer only to duration of time and that each complaint disclosed a separate offence, the second not being merely an amplification of the first, but disclosed further alleged criminal activities by Khawaja Nazir Ahmad, respondent, before the Judicial Committee. In the instant case the report Exh. PA/I was made by Dilawar, respondent, at the Police Post, Devyal, an hour and a half before Usman Shah had lodged the first information report Exh. PA at Police Station, Topi. The application of section 1621 was thus completely ousted for the reason that no case had by then been registered naming Dilawar as an accused. The stage at which a statement made to a police officer is rendered inadmissible under section 162 was not thus reached when the report Exh. PA/1 was made by Dilawar, respondent. The report was, therefore, clearly admissible in evidence and the Courts below had erred , in excluding it from their considera tion. Having cleared the ground that the first information report Exh. PA/1 was admissible in evidence we have to determine how far it corroborates the prosecution case. It was held in Ali Zaman v. The State (P L D 1963 S C 152) that the first information report made by Ali Zaman could be treated as having been made otherwise than in the course of the. investigation into the other report, but this did not enable the Court to use it as a substantial evidence. The admission that Ali Zaman had used the revolver as a result of which the complainant was injured was nevertheless a piece of evidence which corroborated the direct testimony given by the two eyewitnesses in that case. In Ghulam Hussain v. The King (P L D 1949 P C 326) Fateh Singh one of the accused persons pending the trial made a statement before a Magistrate under section 164 of the Code of Criminal Procedure which was exculpatory of himself. Its importance was that it constituted an admission by Fateh Singh that on the day of the rape Josodha came to the house and while she was upstairs with Ghulam Hussain, appellant, he acted as a watchman at the gate. It was held that the statement was rightly admitted as against Fateh Singh, but that it could not be used as evidence against Ghulam Hussain. In principle too an admission made by an accomplice cannot be used as substantive evidence against his co-accused but it may furnish corroboration of the direct evidence led by the g prosecution against the other accused. It is necessary, therefore, to first examine the quality and quantity of the direct evidence produced by the prosecution in support of its case and then determine how far it stands corroborated by the incriminating recoveries and the admissions contained in the report Exh. PA/l. The first eye-witness was Usman Shah, who deposed in his examination-in-chief that he saw the assault on Aman Shah by the respondents 1 to 5 from a distance of 10/11 karams. The assailants who had taken cover behind a wall got up on seeing the accused. Mughal Shah -was the first to stab him with a dagger in the chest. Dilawar gave a second blow in the abdomen. The rest of the accused followed suit and caused injuries to the deceased with knives. The deceased ran away to a nearby field and fell down at a distance 'of 10/15 paces and died. After the accused fled away Usman Shah -returned to his village Banda Matore about 2 miles away from Pori -Wand and informed his father who accompanied him to the place of occurrence. The deceased was placed on a cot and Bughdad Shah and Sultan Mohammad, P. W., were present near the dead body. The dead body was taken to Gundaf Bus Stand on foot and from there carried in a Taxi to the Police Station, Topi. He lodged there the first information report, Exh. P. A., which' was read over ;o him and was admitted correct. Usman Shah was subjected to lengthy cross-examination, but no question was asked from him as to why the F. I. R., was not lodged earlier than 1 p.m. and why did he accompany the deceased though only 10 sears of pulse seed could be easily carried by the deceased alone. Bughdad Shah and Sultan Mohammad supported the version given by Usman Shah. As mentioned earlier the first- named is the fourth-degree collateral of the deceased while the latter is not related to the deceased at all. His sister is married to one Umer Shah who is a cousin of Bughdad Shah. These two witnesses belong to village Bisak while the deceased belonged to village Banda Matore. They .would, therefore, be reluctant to depose against their co-villagers unless, of course, they had any personal reason to falsely implicate them on a murder charge. No such reason was even suggested to either of them. The occurrence having taken place on a public path passers-by were natural witnesses to it. It was not disputed that the village pond was nearby. The statement by Bughdad Shah that he was on his way to the pond to water his cattle and that Sultan Mohammad happened to accompany him was, therefore, consistent with the facts of the case. The learned Judges of the High Court disbelieved Bughdad Shah and Sultan Mohammad on the ground that they were l interested witnesses, but without determining their relationship with the complainant and in disregard of the fact that neither had any enmity with the accused persons to falsely depose against them. Their names were mentioned in the F. I. R., and the Investigating Officer examined them on the same day. As has been held in Shahamad v. The State. Pakala Narayana Swami v. Emperor, Emperor v. Khawaja Nazir Ahmad, Ali Zaman v. The State and Ghulam Hussain v. The King, mere relationship of a complainant is not a sufficient ground to disbelieve him. The trial Judge had taken notice of the relationship of Bughdad Shah and Sultan Mohammad with the accused and considered their testimony as trustworthy. The learned Judges in the High Court, however, ignored this part of the judgment and excluded the evidence of these eye witnesses merely on the ground that they were related to the deceased. While Sultan Mohammad was not at all related to the deceased, Bughdad Shah was a remote relation. In the absence of any suggestion to that effect that these two witnesses had any animus against the respondents, the trial Judge had rightly accepted their evidence. The evidence given by Sultan Mohammad and Bughdad Shah further found support from the F. I. R. Exh. PA/1 made by Dilawar which has been reproduced in the earlier part of this judgment. It was admitted that the deceased met him near Pori Wand on way to village Bisak, that his brother Hakim Khan had abducted the wife of his uncle and that he was annoyed on seeing him in the vicinity of bas village. He grappled with the deceased. On hearing noise his father Avub Khan, uncle Hukmat Khan son of Taus Khan, cousin Qasam Khan son of Hukmat Khan and Mughal Shah son of Gulzada, respondents herein, who were tilling their fields nearby, reached there. To get rid off the deceased the informant picked up a dagger lying on the ground and caused injuries with it to the deceased. After that the informant decamped from the village and hid himself in the house of one Hassan Khan. The other respondents followed him and also took shelter with him. While the admissions contained in the report is substantive evidence against p Dilawar it also furnished corroborative evidence against the other respondents to their presence at the spot when the deceased was done to death. There were also incriminating recoveries including the blood-stained dagger produced by Dilawar at the Police Post, Dewal, and blood-stained clothes found in the house of Mohammad Ayub within few hours of the occurrence. Dilawar denied having produced the dagger Exh. P. 6 and made the report Exh. PA/1. but the evidence given by P. W. 4 Abdur Rabim, Foot Constable and P. W. 6 Abdul Hakim, Head Constable, Police Post, Dewal, on this point, was absolutely free from blemish. It was suggested to these witnesses that the village Dewal was nearby where there are 2/3 Lambardars and yet no witness was sent for from the village to witness the production of the dagger by Dilawar. In reply the Head Constable pointed out that the Police Post is situated on the top of a hill and no outsider was present at the Police Post when Dilawar came to report. This was a perfectly plausible explanation. Moreover, no witness was required to be present at the time of the making of the report Exh. PA/1. The recovery of blood-stained clothes from the house of Ayub, respondent, was supported by the evidence given by P. W. 5 Jallandur Khan, and the Investigating Officer. The High Court has given no reasons to discount their testimony. It was, however, pointed out that as the report of the Serologist was not received it could not be said with certainty as to what was the origin of the blood. Nevertheless the recovery of blood stained shalwar and shirt of a male person from the house of Ayub soon after the occurrence required an explanation. Ayub was asked in his examination under section 342 about the recovery of clothes. He contented himself by saying that his sons also lived with him in the same house implying thereby that the clothes belonged to one of his sons. The other two grounds on which the High Court disbelieved the prosecution case and acquitted the respondents were equally untenable. It was claimed that the report made by Usman Shah at the Police Station, Topi, at 1 p.m., was belated ; and that there was no occasion for Usman Shah to accompany the deceased to village Bisak on an errand for the purchase of ten seers of pulse seed which could be easily carried by the deceased alone. The occurrence took place at about 8-30 a.m., near Pori Wand outside village Bisak. After the deceased was done to death, Usman Shah covered a distance of 2J miles to go back to his village and informed his father Suleman Shah about the. incident. Some time must have been taken before they reached Pori Wand on foot. From there the dead body of Aman Shah was taken again on foot on a charpoy to Gandaf Bus Stand which is three miles away from the place of occurrence. Taxis are not available at places like Gandaf at all hours of the day. It is, therefore, not known how much time was spent by Suleman Shah and his companions at the bus stand before they boarded the taxi. Usman Shah was not asked any question in cross -examination as to why he did not lodge the report earlier than at 1 p. m. In the circumstances the defence could not claim that the F. I. R. lodged by Usman Shah was belated. The second ground for disbelieving Usman Shah suffers from similar defect. It was considered unlikely that he would accompany the deceased on an errand for purchase of 10 seers of dal seed. Usman Shah was not asked any question as to why he had to accompany the deceased who alone could have carried a weight of ten seers. For ought we know Usman Shah had nothing particular to do on that morning and his father asked him to accompany the deceased for more than one reason. The accused who were inimical to the family of the deceased resided in village Bisak. It was, therefore, prudent mad that. the two brothers should go there together. Or may be 9 ti, ! that they were asked to go together to consult each other for purchase of good quality of seed. These are, however. conjectures, but the fact remains that Usman Shah was not asked as to why he was commissioned by his father to accompany the deceased to village Bisak. His evidence that he was, accom panying the deceased at the time of the assault could not, therefore, be rejected on a ground for which no foundation had been laid. On the above analysis of evidence and circumstances appear ing on the record we find that the direct evidence given by Usman Shah, Bughdad Shah and Sultan Mohammad (P. Ws.) which received support from the admissions contained in the report Exh. PA/1 lodged . by Dilawar, respondent, and the incriminating recoveries was trustworthy and the trial Judge had acted properly in relying on it. The High Court rejected their evidence and acquitted the respondents on speculative grounds which resulted in grave miscarriage of justice. We, accordingly, allow the appeal, set aside the judgment and order passed by the High Court and restore the convictions and sentences passed on the respondents by the Additional Sessions Judge, Mardan. They shall be taken into custody and made to undergo the unexpired portions of their sentences. K. B. A. Appeal accepted.