P (PLP)

The prosecution case is that Mst. Fatima, aged about 45 years, who is alleged to have been killed by the appellant, was given about half a square of land by her mother. The collaterals of her deceased father resented this and forcibly took possession of the land. Mst. Fatima filed a suit for recovery of the value of the produce of the land from the trespassers and another suit for possession of the land. She was granted a decree for Rs. 2,766‑8‑0 in the suit for rent on 25th June 1949, vide Ex. P M. Sarja appellant was one of the defendants in this case. In execution of the decree some cattle belonging to the defendants were attached on 21st July 1949 and entrusted to the custody of Muhammad Siddique son of Sohna of Pacca Dalla, a nephew of A7st. Fatima decree‑holder, vide Exhibit P. K. Shortly after wards the cattle were forcibly removed from the possession of Muhammad Siddique Superdar by Sarja, appellant and some other judgment‑debtors. On 23rd July 1949 Mst. Fatima fled an application Exhibit P. L. in the Court of a Revenue Officer, Sheikhupura, praying that action be taken under section 392, Pakistan Penal Code against Sarja and the other offenders. On 26th July 1949 Mst. Fatima was going‑ from her own house to the house of her sister Mss. Jadan in the same village when she was assaulted by Sarja appellant and his brother named Chavi. She took Rajada (P. W. 4) with her to Police Station Sangla Hill, situated at a distance of about twelve kos from her village, and there made the report Exhibit P. S., which was recorded at 12‑15 P. M. Then Mst. Fatima and Rajada took the 4 o'clock train from Sangla Hill and got down at Railway Station Dhaban Singh at about 5 o'clock. Pacca Dalla is about three kos from this station. When they reached Deviwala Khal about a mile away from their village Pacca Dalla, Sarja appellant emerged fro 'n some bushes armed with a kulhari and attacked Mst. Fatima killing her on the spot. Muhammad Siddique and his uncle Sohna, who were working in the neighbourhood, arrived on hearing the alarm and witnessed the occurrence. Leaving them with the dead woman, Rajada, who is a brother of the village Chaukidar, went first to Pacca Dalla and informed Sohna (P. W. 6), husband of Mst. Fatima's sister, that Sarja son of Sadu, appellant, had killed lust. Fatima when they were returning from the Police Station and that Sohna and Muhammad Siddique had witnessed the crime, Sobna went to the spot and, after seeing Mst. Fatima lying dead, went to the lambardar and taking him along proceeded to the Police Station. The train for Sangla Hill had left and they had to go on foot. They reached Sangla Hill at about sunrise and Sohna made the report Exhibit P. A. After stating some preliminary facts, he said that Mst. Fatima was coming with 1Zajada to Pacca Dalla from Dhahan Singh Railway Station when, at about sunset, Sarja son of Sadu, caste Haria, killed Mst. Fatima with a hatchet and that Sohna, his brother, and Muhammad Siddique his son, who were nearby, had witnessed the occurrence ; besides Rajada who was coming with Mst. Fatima. Malik Ata Ullah (P. W. 21) went to the scene of the crime and took some bloodstained earth from the spot He sent the dead body for post‑mortem examination and Dr. Muhammad Sharif, Assistant Surgeon, Sangla (P. W. 1), found the following injuries on the deceased:‑-- (1) Incised wound commencing from the left end of lower jaw at front; then it passed through the upper part of throat. It had broken and cut the lower jaw. Then it had passed in front of right ear and had cut the lower jaw at that place. The wound went further to the back of skull on the other side. On the left side skin was intact. All the bones were cut. It was 17" long and brain deep. (2) Incised wound on the little finger of right side at the junction of the first phalanx and the 2nd phalanx. The finger was completely amputated. (3) Incised wound on the right part of back at the junction of ilium and sacral bones. It was 3" X 1 " X 1 ". Death, in the opinion of the doctor, was due to shock and haemorrhage caused by injury No.

1. The Sub‑Inspector went to village Pacca Dalla in the evening at about 8 P. hr. and the appellant was produced before him. He had the hatchet Exhibit P. 1 which was taken from him by the police and then sent for chemical examination. It was found to be stained with human blood,, vide Exhibits P. O. and P. R. On 11th August 1949 the statements of Rajada, Sohna and Muhammad Siddique were recorded by Sardar Taimur Shah, Magistrate First Class (P. W. 5) under section 164, Criminal Procedure Code. They, are marked Exhibits P. T., P. U., and P. V. Sarja appellant had been taken into custody on 27th July 1949. Muhammad Siddique stated that Sarja was his cousin and Sarja's father and uncle had a dispute about land with Mst. Fatima and there was a criminal case in which Sarja and his uncles, Sohavi, Kalu, and Hatu were sentenced to three months' rigorous imprisonment each and were also bound down to keep the peace. On the day of occurrence he said that he was watching his fields and his uncle Sohna was grazing cattle nearby. They saw Mst. Fatima and Rajada coming from the side of Dhaban Singh Railway Station. When they reached near Dsviwala Khal, Sarja accused attacked ‑MO. Fatima with a hatchet. Mst. Fatima was killed and Sarja ran away. Rajada went to the village to inform the people there and they remained with the dead body until others came. Sohna made the same statement as Muhammad Siddique and definitely said that it was Sarja accused who had killed Mst. Fatima. Rajada said that when he was coming with Mst. Fatima from the Police Station she was attacked by Sarja who gave her two or three hatchet blows and then ran away with the hatchet. Sohna and Muhammad Siddique had also reached the scene of the crime. He added that the mother of Mst. Fatima had transferred half a square of land in favour of Mst. Fatima and Sohavi and Kalu, uncles of Sarja appellant, took forcible possession of this land. They were challaned under sections 107/151, Criminal Procedure Code and were bound down. Sohavi, Kalu and Hatu were also sentenced in a criminal case to three months' imprisonment each. He clearly stated that Sarja, the assailant of Mst. Fatima, was the son of Sadu who was real brother of Sohavi. When Rajada was examined in the Court of the Committing Magistrate on 1st December 1949, more than three arid a half months later, he again stated in the presence of the accused that it was the accused Sarja son of Sadu who had attacked Mst. Fatima and that he knew the accused very well and clearly identified him; but added that Muhammad Siddique and Sohna had told him that the culprit was one Sarja son of Nura, a Mussali, belonging to another village who had no dispute of any kind with Mst. Fatima. In cross‑examination, he further obliged the accused by stating that the assailant had his back towards him when he emerged out of the bushes and attacked the deceased. This is contradicted by his statement in examination‑in‑chief that the accused was known to him and was quite visible to him at the time of the occurrence. When examined in the Court of Session on 19th April 1950, Rajada said that when he and Mst. Fatima reached near Deviwala Khal, a man came out of the bushes and gave a kulhari blow to Mst. Fatima, whereupon Muhammad Siddique and Sohna shouted out that Sarja had killed Mst. Fatima. The learned Sessions judge made a note that the witness was trying to evade questions. When specifically asked whether Sarja accused present in Court struck Mst. Fatima with the kulhari in his presence, the witness replied that he had seen an assailant giving a kulhari blow to Mst. Fatima but lie could not say if the assailant was the accused or somebody else. His statement under section 164 was then read out to him and he admitted that he had made that statement and it was true ; but added that he had made it because he was harassed by the police. He was then told that he had just stated that the statement under section 164 (Exhibit P. V.) was correct and true and then he said that it was made under police pressure, which of the two statements was correct ; he replied that it was for the Court to accept anyone of the statements. He was then confronted with the statement before the Committing Magistrate and he accepted that to be correct. The statement Exhibit P. V/1 was then transferred to the Sessions file. He was asked whether Sarja son of Nura had any ill‑will against Mst. Fatima and he said that he did not know of. any. He admitted that Sarja appellant was arrested by the police in his presence and he did not tell the police that the culprit was Sarja Mussali,, son of Nura resident of Majwara Wali and not the appellant. Muhammad Siddique stated before the Committing Magistrate that it was Sarja accused who had struck Mst. Fatima with the kulhari Exhibit P. 1 but in cross‑examination said that he had seen the man who 'was giving blows to Mst. Fatima from behind and that it was Rajada who had told him that Sarja had attacked Mst. Fatima. In the Court of Session he said that he was sitting with his uncle Sohna near his paddy crop when he saw two men running towards him. The man in front was Rajada who told him that the man who was running after him was Sarja but the witness himself did not recognise him. At a short distance from that place he saw the dead body of Mst. Fatima lying near the Khal but he did not see anyone striking her. He admitted that Sarja accused is his cousin. That apparently explains the change in the witness's statement. He was confronted with the statement Exhibit P. T. recorded by Taimur Shah, Magistrate, First Class, and he admitted it to be correct. He was asked which of the two statements was correct and relied that he did see someone striking Mst. Fatima but the assailant's back was towards him and he could not, therefore, identify him. He also admitted that his statement before the Committing Magistrate, which was read out to him, was correct and the statement was then transferred to the Sessions file under section 288, Criminal Procedure Code. He added that his statement that he had seen the accused (Sarja son of Sadu) giving a blow with the hatchet Exhibit P. 1 to Mst. Fatima was perfectly true. Sohna (P. W. 3) stated in the Court of Session that Sarja accused was his nephew. On the day of occurrence he was in the fields with his other nephew Muhammad' Siddique (P. W. 2) when they heard an alarm and on going in that direction they met Rajada who told them that Sarja Mussali of Majawara Wali had killed Mst. Fatima. He himself did not see anyone striking the deceased. He was then confronted with his statement recorded by Taimur Shah, Magistrate. He admitted that the statement Exhibit P. U. dated the 11th August 1949 was perfectly true and there was nothing false in it: In the next breach he said that in his statement before the Committing Magistrate he had not said that he had seen the accused striking Mst. Fatima. The relevant portion marked A to A was again read out to the witness and he replied that he was unable to explain it. He admitted that his brother Sohna had made the report and brought the police to, the village and that the police had arrested the accused in his presence and he‑never protested that they were arresting the wrong man. The only question in this case is whether it was the appellant Sarja son of Sadu or the other man Sarja son of Nura mussali who killed the deceased. The motive for the crime is abundant against the appellant. The other‑man had no motive at all. The statement of the witnesses in the Court of Session trying to fasten the guilt on an innocent man are contradicted by their previous statements recorded by Taimur Shah, Magistrate. The statements of the witnesses recorded in the 7 Committing Court, when duly transferred under section 288, Criminal Procedure Code to the Sessions file form part of ‑the Sessions record and become substantive evidence in the case. Their value is the same as that of the statements made in the Sessions Court itself and previous statements made under section 164, Criminal Procedure Code, can be used for the purpose of corroborating or contradicting the subsequent statements made in the Committing Court or in the Court of Session The statements under section 164 in this case corroborate the statements made by Rajada and Muhammad Siddique before the Corn‑pitting Magistrate and they contradict the statements of all the three eye‑witnesses made in the Court of Session. In Muhammad Serwar v. Emperor (A. I. R 1942 Lah. 215) it was held that evidence transferred under section 288, Criminal Procedure Code, becomes substantive evidence in the case and is as good as the evidence recorded by the Sessions Judge himself and can be used for all purposes without any limitations. In Narinjan Singh v. Emperor (A. I. R. 1936 Lah. 357) it was laid down that there is nothing in section 288, Criminal Procedure Code, to show that the evidence ‑transferred under that section need be corrobo rated. Evidence so transferred is precisely of the same value as any other evidence and must be judged according to the facts of each particular case. In Rakha v. Emperor (A. I. R. 1925 Lah. 399) it was held that deposition made before the Committing Magistrate but subsequently repudiated before Sessions judge as having been made under police pressure can be transferred ‑ to the Sessions record under section 288 and can be treated as substantive evidence at the trial. In Amir Zaman v. Emperor (I. L. R. 6 Lah. 199) it was held that the statement of a witness made before the Committing Magistrate and transferred to the Sessions record under section 288 is not confined to purposes of corroboration or Contradiction of the evidence given before the Sessions judge but can be acted upon precisely as if that evidence had been deposed to before the Sessions Judge. To the same effect is the case reported as Mam Chand v. Crown (I. L. R. 5 Lah. 324). We are satisfied that the statements made by Rajada and Muhammad Siddique before the Committing Magistrate and transferred to the record of the Sessions Court represent the truth. The statement made by Sohna, the third eye‑witness, before the Committing Magistrate was not transferred to the Court of Session because he had resiled from the statement made by him before Taimur Shah, Magistrate, in the Committing Magistrate's Court. The statements made by Sohna, Rajada and Muhammad Siddique in the Court of Session, being contradicted by their statements under section 164, are not accepted as true. The learned Additional Sessions judge has ordered the prosecution of the above named witnesses under section 193, Pakistan Penal Code Relying on the statements made in the Committing Court, we hold that the charge has been duly proved against the appellant and he was rightly convicted under section 302, Pakistan Penal Code. The next question is of sentence. In the Court of the Com mitting Magistrate, the appellant's age was recorded as 22 years. In the Court of Session he was asked at the request of his counsel to state his age and he said he was only 18 years old. The learned Additional Sessions judge then recalled Dr. Muhammad Sharif (P. W. 1) and asked him to examine the accused for the purpose of determining his age. Dr. Muhammad Sharif, after examining the accused, stated that from his general appearance and the number of his teeth the accused appeared to be about 21 years of age. He said that the wisdom teeth were the principal factors which helped him in determining age. They begin to appear at the age of 18 and can be present in full number at the age of

22. It is very rare for wisdom teeth to appear before the age of

18. It is unfortunate that the doctor has not stated whether all the wisdom teeth of the accused had erupted or only some. It is, however, obvious that some at least must have erupted, otherwise the doctor would not have said that the accused was 21 years of age. At the request of his counsel, the appellant was brought to the Court so that we may form our own opinion about his age. He looks a youngish man and was impleaded as a minor under the guardianship of his brother Chavi in the rent suit filed by Mst. Fatima on 17th May 1948. The offence was committed on 26th July 1949. He may or may not have attained majority during the interval and the opinion of the doctor being based upon the number of the wisdom teeth and the number being not known, the question of his age is not free from doubt. We give him the benefit of this doubt and do not confirm the sentence of death. The conviction of the appellant is maintained but his sentence is altered from death to transportation for life. The appeal is otherwise dismissed. A. H Sentence altered.