P L D 1953 Lahore 495 (PLP)

MUHAMMAD MUNIR, C. J.‑--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 is the experience of everyone concerned, 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 baiter round his neck. The actual murderer is Muhammad Sarfraz Khan, a wealthy Zamindar 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. The peculiar feature of the case is that the police on the strength of the statements of certain witnesses first reported against Muhammad Sarfraz Khan but in two subsequent reports, based on the statements of the same witnesses, took up the position that their earlier report was wrong, that Muhammad Sarfraz Khan was innocent and that the real offender was Muhammad Ramzan. Some more investigations of the kind that we have come cross in this case, and a man in the street in this Province will begin to regard the possibility of his being hanged for a murder that he has not committed, not to be an uncommon incident of his life. The incident which is the occasion for these observations occurred in the town of Montgomery near the end of 1949. In the prostitutes' quarters, called the Chakla, of that town there resides one Khair Din Kanjar, who has three daughters. The eldest of them Mst. Elahi Jan was the mistress of Muhammad Yousaf; the youngest Mst. Baharo is said to have married Saeed Ahmad; and the third Mst. Gulzar Begum carries on her pro fession of dancing and singing On the night of 27th December 1949, at about 11‑s0 p.m. Muhammad Sarfraz Khan, a big Zamindar of Koeke Bahawal, a village about fifty miles distant from Montgomery, who was accompanied by his chauffeur Muhammad Ramzan and his servant Muhammad Sharif drove to the house of Khair Din, and in the course of some altercation just outside that house between him and his two servants on the one side and Khair Din, Muhammad Yousaf and Saeed Ahmad on the other, either Muhammad Sarfraz Khan or his chauffeur Muhammad Ramzan fired four shots from a revolver of which Muhammad Sarfraz Khan is the licensee. One of the bullets went through the head of Yousaf who died in con sequence of the injury on 19th January. Saeed Ahmad received three bullets on his chest but had a miraculous escape from death. The injured men were taken inside Khair Dip's house from where they were removed to the Civil Hospital. Police Station Sadar Montgomery is only two furlongs from the place and information of the occurrence was lodged there by Khushi Muhammad, Chaukidar of the Chakla, at 12‑15 a.m. on the same night. This information was in the following terms:‑ "I am Chaukidar of Chakla Montgomery. At about 11 P.M. I reached the house of Gulzar, prostitute, patrolling. In front of the door a car of Sarfraz resident of Koeke was standing. Sarfraz, whom I knew before, with two more persons one of whom was his driver and the other his servant, was standing in front of the door of the house. They were knocking the door. Yousaf Teni, was also standing close by. In the meanwhile Khair Din, the father of Gulzar prostitute, came out opening the door. Sarfraz and his two companions caught hold of him and said that he should bring out Gulzar. Khair Din refused. Sarfraz and his companions started to give fist and kick blows. Yousaf Teni, stopped Sarfraz and his companions and asked why they were beating a poor man. In the meanwhile Muhammad Amir, Chaudhry Chakla, Malik Shabaz Khan, Muhammad Afzal and Bahadur Khan, also turned up. On the intervention of Yousaf Teni, Sarfraz become infuriated and said if this kanjar would not bring Mst. Gulzar out, he would shoot him. Saeed Ahmad Kakezai, reached in the mean while. Saeed and Yousaf began to desist Sarfraz from creating trouble. In the meanwhile Sarfraz fired with a revolver, which was in his hand already loaded. He injured Yousaf Teni, firing on his forehead. After that two or three fires were made on Saeed Ahmad, one after the other. Saeed Ahmad fell down there. Witnesses present began to raise hue and cry on seeing the occurrence, whereupon Sarfraz and his compa nions went away in the car. Muhammad Amir told me that I should go at once to the Police Station and lodge a report, for which I have come. Both the injured are lying in the Galli in front of the house of Mst. Gulzar Begum at the spot." This information was recorded by Munshi Ghulam Muhammad, the Mobarrir, and a copy of it was sent to Khan Isan Khan, Officer‑in‑Charge of the Police Station, who in those days used to reside in the town. Khan Isan Khan first went to the place of occurrence at about 1 o'clock and recorded the statements of Amir, Chaudhry of the Chakla, Khair Din and Mst. Gulzar Begum and from there proceeded to the hospital to which place the injured persons had already been removed. From the hospital he went to police station where he reached at 3‑30 a.m. and found Muhammad Sarfraz Khan, Ramzan and Sharif present. Ramzan had a bullet injury on his wrist joint. Muhammad Sarfraz Khan was carrying a revolver an‑d a bandolier. These were taken in possession and the statements of all three recorded. Khan Isan Khan then went to the place of occurrence where he reached at 5 o'clock in the morning. He took down the statements of Afzal, Bahadur Khan and Shahbaz. Muhammad Ashraf Shah, Inspector C. I. A., came to the spot with Raja Abdur Rehman, D.S.P., who was officiating for the Superintendent of Police, at 10 a.m. and verified the investigation that had already taken place. Saeed Ahmad who had become un conscious after the injuries regained consciousness in the hospital, where his statement was recorded at 12‑15 a.m. on 28th December by Mr. Inayat Ullah, a Magistrate of the Third Class, under the direction of Mr. Inayat Ali Khan, Magistrate First Class, who bad been approached in, the first instance to record the patient's statement. The case was reported by the police for a magisterial enquiry on 4th January 1950. It was stated in that report that Yousaf and Saeed had been injured by Muhammad Sarfraz Khan with revolver shots, that the injury ran the wrist of Ramzan had been subsequent ly fabricated, that the; persons who had seen the occurrence were Khair Din, Mst. Gulzar Begum, Khushi Muhammad, Amir, Bahadur Khan, Muhammad Afzal and Shahbaz and that these witnesses should be bound over for 6th January 050 for which date the accused, who were in the Judicial lock‑up, should also be called, so that proceedings in the case may be commenced on that day. None of the witnesses, however, appeared on the 6th and the case was adjourned to some other date. On 5th January, something very remarkable happened. Khan Isan Khan had had no doubt so far about the truth of what he had stated in the report of 4th January, and the matter had become sub-judice, he deputed an informer to make secret enqui ries. That very day Rab Nawaz Khan, brother of Muhammad Sarfraz Khan, appeared before Khan Isan Khan and alleged that the revolver had been fired by Ramzan and not by Muhammad Sarfraz Khan. The informer by completed the enquiry and reported that Rab Nawaz Khan's allegation was correct. Accord ingly Muhammad Amir and Khushi Muhammad were recalled and questioned and they corroborated the informer's information. At the instance of Rab Nawaz, Nausher Khan, Mardana, Fateh Din, Akram and Muhammad Amin were questioned on 9th January, and they all said that the revolver had been fired by Ramzan. Thereupon the statements of Gulzar and Khair Din were again recorded and they went back upon their earlier state ments and admitted that Yousaf and Saeed had been injured by revolver shots fired by Ramzan. On the following day i.e., 10th January, almost all the import ant Police Officers in Montgomery except the Superintendent of Police got suddenly interested in the investigation of this case. Not only Raja Abdur Rahman, D.S.P., but Khan Ata Ullah Khan, District Inspector, Syed Muhammad Ashraf, Inspector C. I. A., and Sh. Sadar Ali, Sub‑Inspector associated themselves with the investigation and a large number of witnesses were examined in support of the new theory which had been evolved on 5th January that the revolver was fired not by Muhammad Sarfraz Khan but by Ramzan. One Ali Gohar was deputed by Raja Abdur Rahman to make further inquiry and to report the result on the following day, K hush: Muhammad, the maker of the First Information Report, was also directed to present himself on the following day. Accordingly Ali Gohar and Khushi Muhammad were produced before Raja Abdul Rahman on 11th January. The Raja ordered that a complete challan be submitted against Ramzan and that Muhammad Sarfraz Khan and Sharif should be shown in khana No.

2. Accordingly on 12th January, Khan Isan Khan submitted the challan as directed by Raja Abdur Rahman showing Ramzan to be the real culprit and leaving the case of Muhammad Sarfraz Khan and Sharif who were shown in column No. 2 to the discre tion of the Court. In the meantime Yousaf bad regained conscious ness and his statement had been recorded by Khan Isan Khan himself on 8th January. In that statement the injured man had alleged that Muhammad Sarfraz Khan had fired the revolver at him and Saeed. On the 19th January, Yousaf died and that very day Khair Din and Mst. Gulzar Begum appeared before Mr. A. Masud, Magistrate First Class, Lahore, and alleged that the Police was screening Muhammad Sarfraz Khan and that the truth was that both Yousaf and Saeed had been injured by Muhammad Sarfraz Khan. Their statements were recorded by Mr. A. Masud under section 164 of the Code of Criminal Procedure. On the 20th January i.e., a day after the death of Yousaf, a complete challan was put in by the police reporting that the revolver had been fired by Ramzan and requesting that Muhammad Sarfraz Khan and Sharif should be discharged. As Saeed Ahmad was not satisfied with the turn that the case was taking in the hands of the police he put in a complaint on 1st April 1950, accusing the police of dishonesty and praying that Muhammad Sarfraz Khan should be punished after a proper enquiry. Enquiry in the case was held by Khan Tariq Ismail Khan, Additional District Magistrate. The persons who gave evidence before him as eye‑witnesses of the occurrence were Bahadur Khan. Mst. Gulzar, Saeed Ahmad, Khair Din, Muhammad Afzal. Shahbaz Khan, Muhammad Amir, Nausher Khan, Muhammad Akram, Sadhu and Karam Dad. The first two said that both Yousaf and Saeed were fired at by Muhammad Sarfraz Khan, while all the others stated that the revolver was fired by Ramzan and not by Muhammad Sarfraz Khan, Bahadur Khan and Mst. Gulzar were called as prosecution witnesses. Khair Din and Saeed as Court witnesses and the others as defence witnesses. By his order, dated the 31st May 1950, the learned Magistrate committed all the three accused namely, Muhammad Sarfraz Khan, Ramzan, and Sharif to the Court of Session on the charge of murdering Yousaf and attempting to murder Saeed Ahmad. At the trial Bahadur Khan and Mst. Gulzar Begum stuck their story before the Committing Magistrate and deposed that the crime was committed by Muhammad Sarfraz Khan. Khushi Muhammad who was called for the prosecution went back upon the First Information Report that he had dictated on the night of the occurrence and said that the revolver was fired by Ramzan. Saeed was called as a Court witness and he reverted to his original allegation that the real culprit was Muhammad Sarfraz Khan and not Ramzan. Khair Din was also called as a Court witness and adhered to his statement before the Com mitting Magistrate that it was Ramzan, and not Muhammad Sarfraz Khan who had fired the revolver. The learned Sessions Judge has accepted the evidence given before him by Mst. Gulzar Begum, Bahadur Khan and Saeed Ahmad and taking it in conjunction with the dying declaration of Yousaf has found Muhammad Sarfraz Khan to be guilty of the murder of Yousaf and the attempted murder of Saeed Ahmad. On the first charge he has sentenced him to death and on the second to tees years' rigorous imprisonment. Muhammad Ramzan and Sharif he has acquitted. Muhammad Sarfraz Khan has appealed from his conviction and the reference for confirmation of the death sentence also is before us. It is now nobody's case that Ramzan fired in self‑defence, the real issue in the case being whether the revolver shots which injured Yousaf and eventually caused his death and struck Saeed in the chest were fired by Muhammad Sarfraz Khan or Ramzan. When questioned by the Committing Magistrate whether it was he who had fired the revolver, Muhammad Sarfraz Khan filed a written statement alleging that in order to select a singer to perform on the occasion of his brother's marriage in his Chak he had gone to the house of Mst. Gulzar and asked her to go to the village to sing. Her father, however, would not agree and closed her in a room. Saeed and Yousaf, who were there, beat him and felled him, and Yousaf, in a state of intoxication attacked his driver Ramzan who was seriously injured. He did not expressly say that Yousaf discharged any firearm on Ramzan. Similarly, though the written statement proceeded to allege that whatever Ramzan did was in complete self‑defence, he did not admit that Muhammad Ramzan had fired the revolver. He further alleged that the drivers and some respectable owners of lorries had conspired to get a case registered against him with the Police and had put pressure on the injured persons to implicate him. Before the Sessions Judge also he denied his offence and filed a lengthy written statement accusing his relative Khan Bahadur Dost Muhammad of complicity in the conspiracy to involve him and alleged that Ghazan and Malik Abbas had conspired to implicate him and that one Muhammad Hussain Khan, who is a relative of the wife of the D. I. G., also had a part in the conspiracy to get him convicted. Ramzan denied before the Committing Magistrate that he had fired the revolver and stated that he did not know who had com mitted the murder nor could he tell who had shot at him. He alleged that he received his injury at the time of the occurrence. Thus the only question that falls for decision in this case is whether the revolver was fired by Muhammad Sarfraz Khan or by Ramzan. The allegation which seems to have been made during the investigation that Muhammad Ramzan fired in self -defence has definitely been given up. Before we deal with the evidence in the case we might mention certain circumstances which have a bearing on the question whether the revolver was fired by Muhammad Sarfraz Khan or by Ramzan. According to the medical evidence Yousaf received a bullet in his head while Saeed was shot thrice in front. Thus four shots are proved to have been fired whoever the gunman might have been. It is not now argued by the learned counsel for the defence that Yousaf had any revolver or that he fired at Ramzan. The licensee of the revolver is Muhammad Sarfraz Khan himself and it is definitely unlikely, whatever the provocation or the nature of the altercation, that a mere servant should have fired four shots at persons none of whom is alleged to have been carrying any weapon of offence, whereas if Muhammad Sarfraz Khan had been insulted, abused or roughly handled he might well have repeatedly discharged his revolver. In the second place the persons engaged in the altercation were the two injured persons on one side and Muhammad Sarfraz Khan on the other, and as all the four shots appear to have been fired by a person who was standing in front of them it is more probable that Muhammad Sarfraz Khan fired the weapon and not Ramzan who in the course of the altercation was not likely to have stood right in front of the two injured persons. Then there is the third circumstance which is almost conclusive on the point if it be accepted. When we decided to take some additional evidence to have certain steps in the investigation explained we also sent for Muhammad Ramzan. Our object in directing him to appear before us was to see the nature of the injury on his wrist. When he appeared before us his wrist seemed to be almost normal and the bullet which had struck his wrist did not appear to have caused any permanent damage to his limb or any deformity. While we were examining this man's wrist it occurred to us that we might as well ask him to handle the revolver to see if he could fire it. We, therefore, offered him the revolver and asked him to show if he could use it. His unhesitating reply was that he was not conversant with the use of firearms. As the circumstance appeared to be of some importance we decided to put him on oath and to take his evidence. Mr. Saleem also then agreed with us that if the fact that Ramzan could not handle the revolver was to be used against his client, we could take down what Ramzan said only on oath. Consequently as Ramzan was no longer an accused person we decided to put him on oath and to repeat the question to him. Ramzan refused to touch the revolver and again said that he was not familiar with the use of this weapon. Mr. Saleem expressed his desire to cross‑examine Ramzan and since it was about 4 o'clock we adjourned the case and directed Ramzan to appear for cross‑examination on the following day. When Ramzan came into the witness‑box next day Mr. Saleem objected to his being put on oath by reason of section 342 of the Code of Criminal Procedure and section 5 of the Oaths Act which provide that no oath can be administered to an accused person. We, however, overruled him on this point because it appeared to us that there is no legal impediment to our examining Ramzan on oath in appeal. This man was no longer an accused person as he had been acquitted and no appeal by the Crown was contemplated against him because on the Crown's own case he was innocent of the offence which had been attributed to him by the police. We are fortified in this view by several authorities including I L R 58 Cal. 1214, I L R 25 Born. 422, I L R 16 Bom. 661, 7 W R 44 (Cr.) I L R 1 Bom. 610 and I L R 2 All.

386. After the cross‑examination we explained to Ramzan that he was no longer an accused person, that there was no longer any possibility of his being involved in this affair and that if he could demonstrate that he could fire a revolver be might be rendering some service to his master and again asked him if he could fire the revolver. Again his unequivocal and unhesitating reply was that he had never handled any revolver. In the course of cross‑examination it was suggested to this man that he used to fire a pistol and revolver at the Training Centre of the National Guard at Sulemanki and that he had gone to that place several times with his master Muhammad Sarfraz Khan to practise firing with a revolver and a gun but he denied the suggestion. Mr. Saleem then requested us to take the evidence of Roshan Ali Shah, who described himself as Lieutenant Colonel of the 5th Battalion of the Pakistan National Guard, in order to contradict Ramzan's statement that he had never handled a firearm. We acceded to the request and examined Roshan Ali Shah who stated that he had seen Ramzan several times firing revolvers, guns and rifles at Sulemanki. In his cross‑examination, however, he admitted that the battalion was not permitted to practise, target‑shooting with a revolver, that Ramzan had never been a trainee at the centre and that the re volver which Ramzan used to fire belonged to Muhammad Sarfraz Khan. The witness admits to be a friend of Muhammad Sarfraz Khan and was brought to Court by Rab Nawaz Khan, brother of Muhammad Sarfraz Khan, without any direction from Court. It is obvious that Roshan Ali Shah's evidence that Muhammad Sarfraz Khan, contrary to law, used to hand over his own revolver to Ramzan in order to train him in the use of firearms is a palpable lie not only because no person could so openly teach the use of revolver to his servants as such practice is an offence under the Arms Act but because it is definitely unlikely that masters should stand in need of publicly teaching their drivers the art of shooting with revolvers. We have, therefore, no hesitation in rejecting this Lieutenant Colonel's evidence and see not the slightest reason for not accepting Ramzan's evidence that he is wholly unfamiliar with the use of firearms. 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 revolver when he himself was under no apprehension of being involved. Nor can we accept Mr. Saleem's suggestion that this man merely in order to be consistent with what he had stated before the oath was administer ed to him or after he was sworn has declined to reveal that he is conversant with the use of firearms. He is sensible enough to know that the mere fact that he is familiar with the use of a revolver would not be much of evidence to show that in the incident in question he did fire a revolver. 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 man 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. The direct evidence in the case presents a sharp conflict between the statements of Bahadur Khan (P.W. 16), Mst. Gulzar Begum (P W 17), and Saeed Ahmad (C.W. 1) on the one hand and those of Khushi Muhammad (P.W. 8), Khair Din (C.W. 2) and the deposition of Saeed Ahmad before the Committing Magistrate on the other. Leaving aside for the time being the question whether the prosecution evidence is reliable we have not the slightest hesitation in finding that the statements of witnesses on which reliance is being placed by the defence are completely false. Khushi Muhammad states that when he came to the house of Khair Din while on patrol duty he saw a quarrel going on between Yousaf and Saeed on one side and Muhammad Sarfraz Khan and Ramzan on the other, that these people were abusing each other, that Muhammad Sarfraz Khan and Saeed were engaged in a scuffle in the course of which Saeed gave a slap to Muhammad Sarfraz Khan and felled him, and that Ramzan then came to the help of Muhammad Sarfraz Khan and was fired at with a pistol by Yousaf. Ramzan was hit in his left arm and in return he also fired at Yousaf and Saeed. The injured persons lay where they had fallen and Khushi Muhammad himself went with Ghazan, Shahbaz and Abbas to the police station where a report was dictated by his companions to which his own thumb-impression was obtained. This man is a Chaukidar of the Chakla and is the author of the First Information Report that had been lodged at the police station within 45 minutes of the occurrence. His evidence gives the impression that the incident to which he is deposing occurred inside the house of Khair Din at a time when the doors of the baithak were open and the musicians were present, which is not the defence case now nor do the defence now allege, as they seem to have done during the investigation, that Yousaf had a revolver which he fired at Ramzan. The defence case about the First Information Report now is that it was dictated by Khushi Muhammad but that it was the result of a conspiracy which had been formed at the instance of Abbas and Ghazan to implicate Muhammad Sarfraz Khan. The witness, however, denies having made any report at all and blatantly alleges that the report was dictated by Shahbaz, Abbas and Ghazan, while he himself was outside the police station, and that after it was completed his thumb‑impression was affixed to it. He is completely contradicted by the evidence of Munshi Ghulam Muhammad, Moharrir, Police Station Sadar, Montgomery, who took down the First Information Report and whose evidence on the point we have not the slightest reason to doubt. The First Information Report itself on the proceedings taken thereon make no reference to any companion of Khushi Muhammad. More or less the same reasoning applies to the evidence of Khair Din (C. W. 2), who says that the fight took place inside the baithak where the musicians were present and that Yousaf was the first to fire at Ramzan. This man was cited as a prosecution witness in support of the theory put forward in the challan of the 4th January. Subsequently on 19th January he made a statement before a Magistrate at Lahore. He now denies having made any statement and seeks to explain the record of his statement by the ridiculous allegation that his counsel Mr. Bari who took him to Court had some talk with the Magistrate in English, that something was written down and that he was made to thumb mark it. Since the defence do not contend that Yousaf had any revolver or that Ramzan was injured on the spot in fact the defence case is completely to the contrary‑and the witness has the hardihood to deny that he made any statement before a Lahore Magistrate, it is obvious that he is lying, The third statement on which the defence rely is the statement of Saeed Ahmad himself before the Committing Magistrate. We have already, mentioned that this man's statement had been recorded on the day following the night of the occurrence by a Magistrate and that, being dissatisfied with the police attitude, he made a complaint before the Committing Magistrate, on 1st April 1950, in which he alleged that witnesses were being bribed and won over by the accused and that the real murderer was Muhammad Sarfraz Khan and not Ramzan as alleged by the police. Three days earlier, i.e., on 28th March 1950, he had also applied for cancellation of the bail of Muhammad Sarfraz Khan. Curiously enough when he was examined before the Committing Magistrate be went back upon his own statement recorded by a Magistrate during the investigation and his own complaint and said that the incident took place inside the baithak, that he him self gave a slap to Muhammad Sarfraz Khan and felled him down, that then Ramzan drew a pistol first at Yousaf and then three times at him (Saeed) and that Shahbaz, Afzal, Bahadur Khan and Mst. Gulzar Begum were not present at the time of the occurrence. There can be no doubt that this statement is wholly false because the incident did not take place inside the baithak. Further, while it is proved that he made a statement before a Magistrate on the day following the night of the occurrence, he denied that he had made any such statement though he admits his signatures on that statement. We will later consider the question how this witness's statement before the Committing Magistrate affects his evidence at the trial but at this stage we have no hesitation whatsoever in recording the finding that his statement before the Committing Magistrate was false on all important particulars. When examined at the trial the witness said that his statement before the Committing Magistrate was the result of police pressure and that he was confined for some time by the police before he was produced before the Committing Magistrate. The prosecution on the other hand suggested in cross‑examination that he had been paid Rs. 5,000 at the baithak of Raja Ali Akbar by the relations of Muhammad Sarfraz Khan. The evidence which is in favour of Muhammad Sarfraz Khan having been rejected to be false, we may now consider whether the prosecution evidence itself is reliable and sufficient to justify the conviction. In this connection the most important piece of evidence is the dying declaration of Yousaf himself which was recorded by Sub‑Inspector Khan Isan Khan on 8th January, after some other witnesses had already been won over during the course of investigation. This statement was recorded when the injured man was still in the hospital though Dr. Ghulam Haider, Officer‑in‑Charge of the hospital, was not present when it was recorded. Some argument has been addressed to us in regard to the physical and mental capacity of the injured person to make the statement which is attributed to him. The doctor states that though physically be was capable of making this statement, his mind was still affected and that he was not capable of correctly describing each detail of the fact or event of which he spoke, the cause of his mental derangement being the destruction of the frontal lobe on the brain and the extension of sub acute infection of the brain. This man was shot in the forehead and the bullet which had entered on the left side about 1" above the eyebrow causing a wound deep to the brain had come out at 2 o'clock position in relation to the wound of entrance. Thus the portion of the brain that was injured by the bullet was the silent area of the brain under the frontal bone. A few days after his admission to the hospital he was on his feet and was walking about until he died on 19th January. Dr. Ahmad Ali who performed the post‑mortem examination on his body is of the opinion that death was due to the abscess of the brain from the fracture of the skull. He deposes that it was only on 19th January, that it was reported to him that the man had become un conscious and developed some convulsion. The entries in his bed head ticket show that for several days his temperature during the days when his statement was recorded was almost normal, that even on 29th December he was somewhat conscious and respond ed correctly, that he could answer correctly about his condition, that on 3rd January he could "answer correctly mostly", that on 4th and 7th January he said that he had no complaint, that on 8th January he stated that he go$ fever with cold at night and that on 8th be was taking his normal diet. The statement that he is alleged to have made to Khan Isan Khan is a short document. Khan Isan Khan is definite that Yusuf was in a fit condition to make this statement and that he did make it and we do not think that the general condition of his health was such as might have incapacitated him from uttering the words that he is alleged to have uttered. The question whether his statement is true and gives a correct version of the incident in which he was involved is en tirely different. Dr. Ghulam Haider agrees that this statement could have been made by the injured man, and that being the position we do not think that Khan Isan Khan is lying when he says that this statement was made to him by the patient in the hospital. And if this statement was made by the deceased, it is very im portant evidence against Muhammad Sarfraz Khan because it is nobody's case that the report made by Khushi Muhammad on the night of the occurrence was made in conspiracy with Yusuf, and this statement is the only statement that he is alleged to have made during the investigation. The deceased was fired at by a person who must have stood close to, and almost in front of him. There could, therefore, be no possibility of his mistaking his assailant even though it was night time. Only one man is named in this dying declaration and that is Muhammad Sarfraz Khan against whom the deceased is not proved to have had any previous grudge or complaint. The account of the incident given in this statement completely tallies with the evidence of Mst. Gulzar Begum and Bahadur Khan as to the origin of the altercation and its progress and culmination. It is true that in this statement the deceased said that Muhammad Sarfraz Khan took the revolver from Muhammad Ramzan whereas Mst. Gulzar Begum states that the revolver was round the neck of Muhammad Sarfraz Khan in its holster when he fell down after being slapped by Saeed. We do not attach much importance to this discrepancy because it has no material bearing on the case though Mr. Saleem attaches great importance to it on the ground that the defence version that the man who fired the revolver was Ramzan receives corroboration from the admission in the dying declaration that the revolver was with Ramzan when Muhammad Sarfraz Khan took it from him before he fired. Coming now to the direct evidence in the case on which the prosecution relies, the first witness to be noticed is Bahadur Khan, son of Samundar Khan, driver of Raja Ghazan. He states that on the night in question he was, returning to his house after hearing music in the Chakla. When he came near the house of Mst. Gulzar Begum, he saw a car belonging to Muhammad Sarfraz Khan standing in front of the door and Muhammad Sarfraz Khan himself, his driver Ramzan and servant Sharif knocking at the door of the house. Khair Din, father of Mst. Gulzar Begum, opened the door and these three men at once pulled Khair Din out and started giving him fist blows. They were asking Khair Din to hand over Mst. Gulzar Begum. At this stage Yusuf came out of the house and asked them why they were beating a poor man. Muhammad Sarfraz Khan addressing the witness said that he should not come near or be would be blown off. The altercation developed and Muhammad Sarfraz Khan fired his revolver at Yusuf hitting him iu the forehead and dropping him on the ground. Then Saeed Ahmad came up and moved forward to disarm Muhammad Sarfraz Khan. Muhammad Sarfraz Khan then fired three shots at Saeed which struck him in the front. Saeed also fell down and the three men got into the car and drove off. Khushi Muhammad, Chaukidar, and Muhammad Amir, Chaudhri of the Chakla were also present at the time of the incident. The only criticism against this witness is that be is a driver of Raja Ghazan who is being accused of the conspiracy to implicate Sarfraz falsely and that Yusuf deceased had some interest in a lorry registered in the name of Raja Ghazan. We do not think that the mere fact that this witness is a driver of Ghazan who is the co‑owner of a lorry with Yusuf, deceased can be a sufficient ground to reject his evidence and to dub him as a base man attempting for no obvious reason to implicate an innocent man in a capital offence. The witness's name was mentioned in the First Information Report which was lodged within 45 minutes of the occurrence and there is nothing to show that he contra dicted himself at any stage of the case on any material point. The other objection taken to his evidence is that be is not the per son mentioned in the First Information Report, and that the man mentioned therein was one Bahadur Khan, a fuel vendor. There is no substance in this contention because it was this Bahadur Khan who was questioned on the very night of the occurrence and was subsequently cited as an eye‑witness in the challan of 4th January. The next eye‑witness is Mst. Gulzar Begum who was the cause of all this trouble. Admittedly this woman was in the house at the time of the occurrence and she was the centre of the entire scene. She must therefore, have seen what occurred just outside her house after she finished singing. She unequivocally implicates Muhammad Sarfraz Khan in the murder and attempted murder and is honest enough to admit that it was after Saeed Ahmad had slapped Muhammad Sarfraz Khan, that the latter fired first at Yusuf and then at Saeed. She claims to have seen the whole occurrence beginning with the altercation between her father and Muhammad Sarfraz Khan and ending with the shooting down of Yousaf and Saeed. Learned counsel, however, contends that there was no occasion for her to come out of the room to which she had gone after music finished and that in any case her statement that she went up on the roof is incorrect. We can accept neither of these arguments because we have already pointed out that she was intimately concerned in the affair about which altercation was going on between her father and Muhammad Sarfraz Khan and sheer curiosity to know what was happening, if nothing more, must have promoted her to bear and see what was passing on between them. And if she did not go up to the roof, there was hardly any point in her inventing the story that she did go up there before the final stages of the incident were enacted because she could claim to have seen the occurrence from behind the door of the house or the door of the baithak. It is urged that from the position in which she is shown in the photograph which was taken during the investigation she could not have looked down at the precise place from where the revolver is alleged to have been fired. The contention is devoid of all force because we have ourselves seen the spot and have no doubt whatsoever that from the position in which he stood when we visited the house, and this position is in complete coincidence with the position she is shown to have adopted at the time of the photograph, she had merely to look down to see what was happening in the street. Our note would show that the parapet of the house is three feet nine inches while fist. Gulzar Begum herself is five feet three inches. She pointed out the various relevant spots and these completely agree with those indicated in the plan. We might mention that the photograph, on which reliance was placed by the defence in support of the argument that Mst. Gulzar Begum from the position in which she is shown in that photograph could not have seen anything, is a completely deceptive document. It shows a small, miserable looking house as a mansion and has been taken not from a horizontal plan but from the ground, with the result that the difference in the height of the parapet and the stature of Mst. Gulzar Begum is not at all apparent therefrom. There is nothing to show that Mst. Gulzar Begum made any contradictory statement during the course of police investigation except on the 9th when according to Khan Isan Khan she admitted that it was Ramzan who had fired the revolver. The witness denied that she ever made any such statement and when on 10th January she appeared before Raja Abdur Rahman, D. S. P., and was confronted with the statement of the preceding day she at once denied having made that statement and stuck to the original position she had taken when she was questioned by the police on the very night of the occurrence. During the investigation she came to Lahore with her father and alleged before Captain Aziz ul‑Haq Masood that police was compelling her not to disclose the true facts and falsely to say that the revolver had been fired by the servant of Muhammad Sarfraz Khan. Objection has been taken to the admissibility of her statement recorded at Lahore on the ground that this statement was not made "in the course of police investigation" and that, if so made it was recorded by a Magistrate who had no jurisdiction to record it. In our view the words "In the course of an investigation" in section 164,1 Cr. P. C. as would appear from the succeeding words "or at any time afterwards before the commencement of the inquiry" mean "while the investigation is in progress", and a statement) under that section may be recorded not only at the instance of the police but also at the instance of the accused or the aggrieved person or at the request of the witness himself. The authority to record statements in the course of police investigation does not exclusively vest in the Magistrates competent to take cognizance of the offence. The section itself expressly states that it is not necessary that the Magistrate recording such statement should have jurisdiction in the case, and there is a series of cases in which confessions recorded under that section by Magistrate in Indian States and foreign jurisdictions have been admitted in evidence. In any case we have no doubt that that portion of Mst. Gulzar Begum's statement in which she alleged that the police was compelling her to make a particular statement was in the nature of a complaint which is admissible under section 157 of the Evidence Act because it was made shortly after the fact, the relevant fact in the present case being that pressure was being exerted upon her not to speak the truth and to make a false state ment in Court. We are fully satisfied that the evidence of this witness is true and that she has neither suppressed any material facts nor exaggerated her story. The last witness who may now be noticed is Saeed Ahmad who in view of his statement in the Court of the Committing Magistrate, was not called by the prosecution, and was examined as a Court witness, We have already stated that this man, being dissatisfied with the police proceedings, filed a complaint in the Court of the Committing Magistrate accusing Muhammad Sarfraz Khan whom the police had held to be innocent and also applied for cancellation of his bail. In his evidence in Court he deposed that both Yusuf and he himself were shot at by Muhammad Sarfraz Khan and riot by Ramzan. When questioned how he made a contradictory statement before the Committing Magistrate he said that it was due to police pressure and that seeing that Muhammad Sarfraz Khan, who had committed a murder and attempted to murder the witness himself, had got himself released on bail he thought that it was unless to go against the police since anything might happen to him. He alleges that he was taken to a lonely Chak by the police where he was confined until he was brought first to the bungalow of the Superintendent of Police and from there was taken to Court where he made his statement before the Committing Magistrate. It appears that this witness was accused in a case under section 324/147 with a number of other persons including Yusuf, deceased, which was pending in the Court of the Revenue Assis tant and that he was admitted to magisterial bail in supersession of police bail only a day before he appeared before the Committing Magistrate to give evidence. Earlier in this judgment we have given our reasons for the view that the statement made by him before the Committing Magistrate was false in all important particulars. The question, therefore, is why should a man, who had been shot thrice in the chest and who in his statement immediately after the occurrence had stated that be was shot at by Muhammad Sarfraz Khan and who was making frantic efforts during the enquiry to put his case which he believed to be true before the Court, when the occasion comes for him to tell his tale, completely go back upon what he had been alleging throughout and support the police case which according to him was false and dishonest. He attributes this conduct to pressure by the police and we are inclined to think that this allegation of his is in all proba bility true. We also consider that what was put to him in his cross‑examination before the Committing Magistrate, namely, that a sum of Rs. 5,000 had been paid to him by the relatives of Muhammad Sarfraz Khan at the baithak of Raja Ali Akbar might well be a fact. Like a shrewed man, having taken the money, he has no compunction in accusing the man who had lodged three bullets in the chest and is now anxious to see him receive the penalty of his crime. It is only on these two hypotheses that the somersault this witness took before the Committing Magistrate can be explained. We are aware of several decisions in which Judges have taken the view that where a witness makes one state ment before the Committing Magistrate and a completely different one at the trial, the safer course is to completely ignore his evidence. This may generally be true but is not an invariable rule. The statement made before the Committing Magistrate and transferred to the Court of Session is substantive evidence and the Court is at liberty to act on such evidence, if it is satisfied that the statement‑was true. The converse of this proposition is equally correct, namely, that the Court has the discretion to act upon the evidence given at the trial in preference to the statement made before the Committing Magistrate. This is particularly so where the circumstances tend unmistakably to show that the statement before the Magistrate was not the truth. That in the present case that statement was not true would appear from the reasons we have already given earlier in this judgment. That statement could only have been made by Saeed Ahmad if he bad been compelled to make it or if there was some other impelling motive for him to make it, and being false its value in contradiction is practically nil. His present statement is, on the other hand, corroborated by the statement that be made before Mr. Inayat Ullah, a Magistrate of the Third Class, at mid‑day on 29th January. It is preposterous to suggest that in the condition in which he was when he made that statement he should have, while wavering between life and death, become party to a conspiracy according to which the man who had shot him thrice in the chest was to be spared, and a man who had merely a quarrel with him to be falsely implicated. There is nothing to show that before Khushi Muhammad left to make a report at the police station Saeed Ahmad was in possession of his senses. In fact the evidence is that since the incident he had remained in a state of un consciousness. This condition of his was recorded in the hospital documents and Mr. Inayat Ali Khan, First Class Magistrate, who was the first to arrive at the hospital to record his statement had to go back without doing anything because Saeed Ahmad was unconscious and not in a fit condition to make any statement. Mr. Saleem has objected to the admissibility of the state ment of Saeed Ahmad recorded on the 29th because it; was recorded by a Magistrate who was incompetent to record it. Under section 164 of the Code of Criminal Procedure the state ment of a witness can be recorded in the course of police, investigation only by a Magistrate of the First Class or by a Magistrate of the Second Class if he has been especially empower ed for the purpose. In the present case the recording Magistrate was only a Third Class Magistrate and, therefore, the question which requires determination is whether the statement of a witness recorded by an incompetent Magistrate immediately after the occurrence can be used to corroborate his subsequent testi mony in Court. If Saeed Ahmad had died, the statement, on the authority of Sulaiman v. The King (A I R 1941 Rang. 301); Rehman v. Emperor (Cr. A 319 of 1939) Chandigi v. Emperor (A I R 1930 Lah. 60); and Nur Muhammad v. Crown (Cr. A 319 of 1939), would have been admissible as a dying declaration even though it was recorded by a Third Class Magistrate. The point sought to be made by Mr. Saleem is that from the Privy Council decision in Nazir Ahmad's case (I L R 17 L 629), it must follow that no statement recorded by a Magistrate during police investigation can be admitted as a dying declaration if it has not been recorded by a Magistrate of the First Class or by a specially empowered Magist rate of the Second Class. The case before the Privy Council was one of an improperly recorded confession. Now the law itself provides that when a confession has to be recorded by a Magistrate in the course of police investigation, the Magistrate, before he proceeds to record the confession, must warn the prisoner that he is not under any obligation to make a confession and that the confession, if made, may be used as evidence against him, and it is only after he has given this warning that he can proceed to record the confession, and that too if after questioning the prisoner he is satisfied that the confession he is going to make would be made voluntarily. The classes of Magistrates who are competent to record confessions are specified and the lowest class declared competent for the purpose is class II if specially em powered for the purpose. No such procedure, however, has been prescribed by law where the statement to be recorded is not a confession but a statement of a witness. It is true that under section 164, Criminal Procedure Code, the only Magistrate who is competent to record the statement of a witness is a First Class Magistrate or a specially empowered Second Class Magistrate and that the statement has to be taken down in the manner prescribed by the Code of Criminal Procedure. But a Magistrate recording a statement under that section is not required to give any such warning as is necessary in the case of a confession and it is this difference in the recording of the confession of an accused and the statement of a witness that Courts subsequently to the Privy Council decision in Nazir Ahmad's case have held that even where the statement of a dying man is recorded by an incompetent Magistrate in the course of police investigation, the case is not governed by the principle of that authority, and that the state ments of deceased persons though recorded by incompetent Magistrates are admissible as dying declarations. We do not wish to differ from that view detailed reasons for which are given in the unpublished Division Bench judgment of our own Court in Nur Muhammad v. Crown (supra). In England such statements are admissible to whomsoever made, and we are unable to discover any valid reason for their exclusion when they are made in the course of police investigation to a Magistrate of an inferior class. It is not contended teat if a statement is made during investigation try an injured person to another Person who is not a Magistrate, it would be inadmissible like a confession made to such person during police investigation That being the position we do not see why such statement should be inadmissible merely because' the person who heard and recorded it happened to be a Magistrate. The contrary view, if accepted, would deprive the Court of very valuable information about crime and in the absence of a clear statutory direction we are not disposed to give effect to it. If we are right in the view we take of the admissibility of D dying declarations made to incompetent Magistrate during police investigation, it must follow that statements of witnesses recorded by such Magistrates in the course of police investigation must become admissible under section 15", Evidence Act, provided the other essential conditions of that section are satisfied. In the present case the statement was made immediately after the occurrence when the facts to which the statement related were fresh in the mind of the witness and, therefore, the statement is admissible, not substantive but as corroborative evidence, and if it is so admissible it is a complete corroboration of Saeed Ahmad's evidence at the trial. There is an earlier statement of Saeed Ahmad which was accidentally proved while we were taking additional evidence. It appears from Exhibit P. O., the record of the statement of Dr. Ghulam Haider before Mr. Inayat Ali Khan, Magistrate First Class, when the latter came to the hospital to record the statement of injured persons at 2‑30 on 28th December 1949, that before the arrival of the Magistrate, Saeed Ahmad was conscious for sometime and that as a precautionary measure the doctor bad re corded his statement. No body noticed this fact during the trial and no record of that statement was produced by the police with the challan of 4th January. Dr. Ghulam Haider has stated that he did record Saeed Ahmad's statement but that he handed it over to his dispenser who is now in Jedda. That this statement did not come into the possession of Khan Isan Khan seems to be clear, because otherwise he would have produced it with the challan of 4th January, the contrary theory that Ramzan and not Muhammad Sarfraz Khan was the murderer not having been evolved till then. Even in the bed‑head ticket of Saeed Ahmad there is a reference to the recording of such statement. As the document embodying that statement was not available, we decided to question Dr. Ghulam Haider about the terms of that statement. The doctor states that Saeed Ahmad had then told him that he was sent for from his house by Khair Din, the father of Mst. Gulzar Begum, who was having an altercation with a visitor at his house and that when Saeed Ahmad came to the house in question he and Yousaf were both shot at by Muhammad Sarfraz Khan. We accept this evidence of Dr. Ghulam Haider because there can be no motive for him not to give true evidence, the complainants in the, case being too insignificant to influence his evidence and the evidence, .as it is given, being contrary to the case as was subsequently evolved by the police and which is still the case of the police witnesses. Thus the statement of Saeed Abroad, both before .the doctor and little later before Mr. Inayat Ali Khan, is a complete corroboration of the evidence given by him at the trial. Learned counsel for the defence, relying of course on the statements of Khushi Muhammad and Khair Din, still contends that Muhammad Sarfraz Khan had been falsely implicated in the First Information Report which was lodged after a conspi racy had been formed to involve him in place of Ramzan. This theory is the same as found favour with the police when they recorded their own opinion in the challans of the 12th and 21st January. The occurrence took place at 11‑30 p. m. and the First Information Report was lodged at the police station which is two furlongs away within 45 minutes by the Chaukidar of the Chakla who had been deputed for that purpose by the Chaukidari of the Chakla. We cannot imagine that within this short space of time both the injured persons, the two kanjar witnesses, three eye‑witnesses mentioned in that report and Raja Ghazan and Abbas who were alleged as prime movers in that conspiracy should have been in a mood or could have had suffi cient time, even if they had the inclination, to evolve this criminal conspiracy to let off the real culprit and to implicate an innocent man. The two injured persons could certainly not be in a mood, even if they were in a fit condition, to be parties to this conspiracy the result of which, if the conspiracy suc ceeded, would have been to let the person who had shot at them go scot free and to get an innocent person hanged. Second ly, if Bahadur Khan, Mst. Gulzar Begum, Saeed Ahmad, and Yousaf were parties to this conspiracy, they should also have fallen in line with the other witnesses in extorting money from Muhammad Sarfraz Khan which is stated to be the object of the conspiracy, but we know that neither Saeed Ahmad nor Muhammad Yousaf, nor Mst. Gulzar Begum, nor Bahadur Khan were induced to enjoy the fruit of this conspiracy so long as the investigation continued. There is no allegation that anyone of them with the exception of Saeed Ahmad extorted money from Muhammad Sarfraz Khan on his relations in pursuance of that conspiracy and we know that right up to the beginning of April, Saeed Ahmad, who is the most important witness in the case, did not succumb to the temptation. To top all, though Khair Din and Khushi Muhammad now state that Raja Ghazan and Abbas had come on the scene before Khushi Muhammad left for the police station to make a report, it is admitted both by Raja Abdur Rahman and Khan Isan Khan in their evidence before us that right up to the 21st January when the final challan was put in Court not a single person had specifically stated in the course of police investigation that Raja Ghazan and Abbas had in fact come to the scene before Khushi Muhammad left for the police station. In fact these two persons, though examined during the police investigation after the counter theory had been set up, were never asked by any Investigating Officer. If they had come on to the scene of the crime before the matter was reported at the police station. It is, therefore, plain that there is no basis whatsoever for the contention that Muhammad Sarfraz Khan is the victim of a conspiracy engineered by Ghazan and Abbas. Ghazan has not been examined in the case, and Abbas states that he came to the house of Khair Din after Yousaf and Saeed had been removed to the hospital and that from there he went to the hospital from where he first came to the police station and then to the scene with Khan Isan Khan. This is in complete confirmity with what Isan Khan himself has stated. Mr. Saleem relies on the sentence in the evidence of Abbas that the Moharrir took down the First Information Report at the dictation of Khan Isan Khan at about 3‑30 a.m. But in this Abbas is obviously mistaken because the documents made at the hospital show that Khan Isan Khan had reached the hospital and applied for a Magistrate to record the statements of the injured persons long before 3‑30 a.m. and that Mr. Inayat Ali Khan himself in response to Isan Khan's request had come to the hospital at 2‑12 a.m. The last circumstance relied on in support of the defence case by Mr. Saleem is the gunshot wound on Ramzan's wrist. The argument is that not knowing that in the First Information Report Muhammad Sarfraz Khan had been mentioned as having fired the revolver and knowing that he himself had done it Ramzan fabricated an injury on his person to substantiate the plea of self‑defence which at that time he intended to put forward. This circumstance to our mind tells more against Muhammad Sarfraz Khan than in his favour. The injury was undoubtedly caused with Muhammad Sarfraz Khan's own revolver and Ramzan was brought to the police station by Muhammad Sarfraz Khan himself. If Ramzan was the person who fired the revolver, he could take up the plea of self‑defence on so many other grounds on which such defences are taken and not adopt the risky course of letting a bullet pass through his wrist when he knew that no allegation of Yousaf having caused this injury would be acceptable. It is, therefore, more probable that out of feelings of loyalty for his master and on the master's assurance that the damage would not be great this poor man offered his wrist to shield his master. It may be true, as it is, that the police did not completely side with Muhammad Sarfraz Khan in accepting the allegation that Ramzan had fired in self‑defence but that does no credit to them because it appeared to be too plain to them that no case for self‑defence to justify four shots could be suggested, and it is clear from Raja Abdul Rehman's own admission that on the evidence that was intended to be produced against Ramzan his conviction was out of the question. There was, therefore, no point in their making their conduct more suspicious by accepting the theory of self‑defence. The police knew that if the Magistrate to whom the case was reported acted as they desired, Muhammad Sarfraz Khan would be discharged and Ramzan was sure to be acquitted. After giving our best consideration to the case we agree with the view taken by the learned Sessions Judge and consider that Muhammad Sarfraz Khan has been rightly convicted of the murder of Yousaf and the attempted murder of Saeed Ahmad. If our finding that the revolver was fired by Muhammad Sarfraz Khan and not by Muhammad Ramzan is correct, then it is obvious that the police have attempted to push son an innocent man to the gallows and to shield the real murderer. In order to understand how this was done and whether the course adopted was bona fide it is necessary even at the risk of repetition to trace the course of police investigation. The occurrence had taken place at 11‑30 p.m. and information of it had been communicated at Police Station, Montgomery, which is hardly two furlongs away within 55 minutes, as the First Information Report was entered actually in the register of first reports at 12‑

15. This report stated that the incident had been seen not only by Khushi Muhammad informant himself but also by Muhammad Amir, Khair Din, Muhammad Afzal, Shahbaz Khan and Bahadur Khan. Khan Isan Khan Sub‑inspector came to the scene at 1 a.m. and recorded the statements of Amir, Khair Din and Mst. Gulzar Begum. As he did not find the injured persons at the house he first went to the hospital where he found both the injured men unconscious and then went to the police station where he found Muhammad Sarfraz Khan, Muhammad Ramzan and Sharif present at 3‑30 a.m. Ramzan then had an injury on his wrist. From the police station Khan Isan Khan again came to the place of occurrence at about 5 o'clock in the morning. He then took down the statements of Afzal, Bahadur Khan and Shahbaz. On the following day at 10 o'clock in the morning Raja Abdur Rahman D. S. P., and Syed Muhammad Ashraf Shah, Inspector C. I. A., also came to the scene of occurrence and checked the investigation which had so far taken place and found it to be correct. By 12‑50 on that day Mr. Inayat Ullah Khan had recorded the statement of Saeed Ahmad in the hospital, and he also, like the other eye‑witnesses, had stated that the revolver was fired by Muhammad Sarfraz Khan. On the 29th December Mst. Gulzar Begum, Khair Din, Khushi Muhammad and Muhammad Amir were questioned a second time and there is nothing to‑show that they introduced anything new in their state ments. On 31st December all the available neighbours were also examined, and on 4th January a challan was put in Court report ing that Muhammad Sarfraz Khan had committed the offence of attempted murder and that the Court should commence the proceedings on 6th January, for which date the witnesses should be bound over. On 5th January something very extraordinary happened. Though a day before Khan Isan Khan was satisfied that the culprit was Muhammad Sarfraz Khan he deputed, why it is not clear, an informer to ascertain the facts.. This informer was Niaz Ali Shah who had been in police service and who was not known to Khan Isan Khan before he took over as S.H.O., Police Station, Montgomery, only two days before the occurrence. There is nothing to show that this informer had been known to be a reliable man and he was picked up for the purpose by Khan Isan Khan because he had seen him taking part in the investigation of another case at Police Station, Montgomery in those very days. The informer brought the information that the revolver had been fired by Muhammad Ramzan but no statement of his was recorded and there is nothing to indicate that he was asked to disclose the source of his information. That very day Rab Nawaz Khan, brother of Muhammad Sarfraz Khan. appears before Khan Isan Khan and makes the allegation that it was Ramzan who had fired the revolver, Muhammad Amir and Khushi Muhammad were then sent for and curiously enough they stated that what the informer bad communicated was true Khan Isan Khan recorded the statement of Yusuf on 8th January, and the injured man said that he had been fired at by Muhammad Sarfraz Khan. On 9th January Nausher Khan, Fateh Din, Muhammad Akram and Muhammad Amin were produced by Rab Nawaz and they claimed to be eye‑witnesses of the occurrence and stated that the revolver was fired by Muhammad Ramzan. On that very day Mst. Gulzar Begum and Khair Din were again questioned and according to Khan Isan Khan they admitted that Muhammad Sarfraz Khan had been falsely involved by them and that the revolver had in fact been fired by Muhammad Ramzan. On the 10th a host of police officers descended on this case and Raja Abdur Rahman D. S. P., Syed Muhammad Ashraf Shah Inspector C.I.A., Khan Ata Ullah Khan, District Inspector and Sh. Safdar Ali, Sub‑Inspector associated themselves with Khan Isan Khan in the investigation. Raja Abdur Rahman questioned Mst. Gulzar .Begum and Khair Din and they both stated that the revolver had been fired by Muhammad Sarfraz Khan and that they had not made any statement to the contrary to Khan Isan Khan on the 9th. Raja Abdur Rahman also questioned Nausher Khan, Fateh Din, Muhammad Akram and Muhammad Amin, who said that they had witnessed the occurrence, that Muhammad Sarfraz Khan had not fired the revolver and that it was Ramzan who had done so. Raja Abdur Rahman then deputed his own informer, one Ali Gohar, to make further inquiry and directed him to communicate the result of his inquiry on the following day. On the 11th Ali Gohar appeared before Raja Abdur Rahman and stated that Muhammad Sarfraz Khan was innocent. This Ali Gohar was no more than a relation of Muhammad Sarfraz Khan himself. After questioning Khushi Muhammad, Raja Abdur Rahman directed Khan Isan Khan to report the case against Muhammad Ramzan and to show Muhammad Sarfraz Khan and Sharif in column No.

2. On the 12th January a complete challan was prepared by Khan Isan Khan stating that Muhammad Ramzan was being reported as the person who had fired the revolver, that Muhammad Sarfraz Khan and Sharif had been found to be innocent and that they were being shown in column No. 2 and their case was being left to the discretion of the Court. The eye‑witnesses cited in this challan were the same as had been mentioned in the challan of 4th January. Muhammad Yousaf died on 19th January and, therefore, on 21st January another challan was put in repeating the police opinion that Muhammad Sarfraz Khan and Muhammad Sharif had been found to be innocent but in that challan, unlike the challan of 12th January, it was requested that these two accused persons should be discharged and that the case should only proceed against Muhammad Ramzan under section 302 and section

307. Thus on the evidence of the same witnesses the police had arrived at two mutually exclusive conclusions. In the challan of 4th January the police case was that the culprit was Muhammad Sarfraz Khan and not Muhammad Ramzan whereas in the challans of 12th and 31st January the police., definitely alleged that the murderer was Muhammad Ramzan and not Muhammad Sarfraz Khan who should be discharged. During the investigation between the 4th and 21st January four persons, namely, Nausher Khan, Fateh Din, Muhammad Akram and Muhammad Amin had been examined as eye‑witnesses but they were nut cited either in the challan of the 12th or in the challan of 21st January. Khan Isan Khan states that it was a mistake on his part not to cite them in the challan while Raja Abdur Rahman takes up the position that as these persons had been produced by the brother of Muhammad Sarfraz Khan and had appeared at a late stage of the investigation, he thought that their evidence was not likely to be accepted by the Court and, thereafter, there was no .use to include them in the list of witnesses. The question that arises is whether the several police officers who expressed the opinion that 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 some 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 case and drawing their attention to the relevant material and hear ing 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. On 11th January, when Raja Abdur Rahman directed Khan Isan Khan to report the case only against Muhammad Ramzan and to show Muhammad Sarfraz Khan and Muhammad Sharif in column No. 2 because they were innocent the material against Muhammad Sarfraz Khan was‑

1. The dying declaration of Muhammad Yusuf recorded on 8th January, by Khan Isan Khan.

2. The statement of Saeed Ahmad recorded by a Magis trate on the day following the night of the occurrence.

3. The statements of Bahadur Khan, Shahbaz Khan and Muhammad Afzal, and

4. The statements of Khair Din and Mst. Gulzar Begum before Raja Abdur Rahman himself that the revolver had been fired by Muhammad Sarfraz Khan and not by Muhammad Ramzan and that they had not made any contradictory statements to Khan Isan Khan on 9th January. The only material before him for doubting the truth of the case against Muhammad Sarfraz Khan was the statements of Khushi Muhammad and Muhammad Amir made by them in contradiction of their earlier statements. Now, those two witnesses had stated, one within less than an hour, and the other on the morning following the night of the occurrence, that the revolver had been fired by Muhammad Sarfraz Khan. Raja Abdur Rahman should, therefore, have naturally suspected this change in their attitude. Muhammad Sarfraz Khan is a wealthy Zamindar and he could easily get round both these witnesses one of whom is the Chaukidar, and the other the Chaudhry of the Chakla. The essential feature of the police case being that Muhammad Sarfraz Khan had been implicated to extort money from him, the moment these witnesses went back upon their original statements, anyone should have though that they must have been bribed and that no theory which could only be supported on the hypothesis of their having been bribed had any chance of being accepted, and that the fact might well have been that Muhammad Sarfraz Khan was rightly named in the first information report but the witnesses had been bribed to resile from their earlier statements. Thus on the material that existed on 11th January, it was impossible for any reasonable Investigating Officer honestly to arrive at the conclusion that the truth was contained only in the sub sequent statements of Khushi Muhammad and Muhammad Amir which were inconsistent not only 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 that was being done to the witnesses and that it had their approval. Further if the police really thought that Ramzan had fired the revolver there is no reason why the witnesses who had said so, namely, Nausher Khan, Fateh Muhammad, Muhammad Akram and Muhammad Amin, were not cited in the challan of 12th January. Raja Abdur Rahman states that since these witnesses were produced by the brother of Muhammad Sarfraz Khan at a late stage of the investi gation, he did not expect their evidence would be accepted by the Court. But then did he expect the Court to accept against Ramzan the evidence of witnesses everyone of whom at the earliest opportunity had implicated Muhammad Sarfraz Khan? There is one point more, and that is this. The challan as put in on 4th January, was incomplete only in a technical sense. The investigation had been completed, and only a few more papers were being awaited to be produced in Court. In the complete challan of 12th January, no new witnesses were added. The case having become sub judice on 4th January, one may well ask why did not the police leave the witnesses alone to tell their tale in due course in Court. Undoubtedly the police had the right to discover fresh evidence in support of the case they had already reported to Court but instead of discovering further material the police confined their activity to recall and question witnesses on the same point again and again, and from 5th January, their avowed object seems to have been undone what they had done up to the 4th. And it seems to us to be perfectly clear that after the contrary theory was set up on the 5th, the police must have been not only conniving at what was being done with the witnesses but that every step in the direction of squaring them up must have had the approval of the police, provided those witnesses could be persuaded to support the new theory to which the police had wedded themselves. The several police officers have repeatedly alleged before us that they acted with complete honesty in the matter. When the position as it existed on the 11th was directly put to them, they bad to admit that the only foundation for their honesty was the two informers and the gossip in the town: We cannot suppose for a moment that experienced police officers as they were, they could honestly have formed any conclusions on mere gossip and two self contradicting persons as against the bulk of evidence that was then in their possession. Both Raja Abdur Rahman and Khan Isan Khan now allege that according to their investigation the conspiracy to involve Muhammad Sarfraz Khan was engineered by Malik Abbas and Raja Ghazan. Nothing can be more untenable than this theory of conspiracy which has been dinned into our ears throughout the hearing of this case and the cross examination of the police officers. A conspiracy within a short space of 45 minutes to which both the injured persons who expected to die at any moment, the five eye‑witnesses and Malik Abbas and Raja Ghazan were parties is a sheer impossibility and from whatever point of view this theory is examined, if com pletely evaporates at the slightest touch. No two persons, one of whom was shot through the head and the other thrice in the chest, could have agreed to let off Muhammad Ramzan if it was he who had fired the revolver. In the next place the only object of the conspiracy could have been to extort money from Muhammad Sarfraz Khan but we know that till 11th January, the day on which the police formulated their final conclusions, none of the eye‑witnesses, including the injured persons, had changed their statements except Khushi Muhammad Chaukidar, and Muhammad Amir, Chaudhry of the Chakla. And in view of the directions given by the Deputy Commis sioner himself that they should be very careful about the investigation of the case, the police officers should at once have suspected that the change in the statements of these two witnesses must have been due to their having been bribed, and they should have avoided to expose themselves by their conduct to the possible criticism that if Muhammad Sarfraz Khan could bribe the witnesses he could bribe the police as well. Above all the arch engineers of this conspiracy are said to have been Malik Abbas and Raja Ghazan, and though now Khair Din and Khushi Muhammad state that these two men had come to the scene some time after the occurrence and Khushi Muhammad asks us to accept the ridiculous allegation that even the F. I. R. was dictated by them, it is admitted by Raja Abdur Rahman and Khan Isan Khan that throughout the investigation not a single person had mentioned these two persons as having come to the spot before Khushi Muhammad left to make the F. I. R. And if these two men did not see Khushi Muhammad before the report was lodged, where was the basis for the extraordinary conclusion that it was these two persons who bad decided to implicate Muhammad Sarfraz Khan falsely. In their examination by us both Raja Abdur Rahman and Khan Iran Khan have admitted that the challans of 12th and 21st January were prepared after consultation with the Superinten dent of Police and Sheikh Ghulam Hussain, P. D. S. P. The former officer was on leave when the case was reported on 27th December and resumed duty either on the 3rd or 4th of January. The change in the investigation begins from 5th January. We have not examined the Superintendent of Police or the P. D. S. P. 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 should therefore be considered to be conclusive against them. Raja Abdur Rahman definitely states that every important step in the investigation was being communicated to the Superintendent of Police who was closely in touch with the investigation and that the decision to report the case only against Ramzan and to ask for the discharge of Muhammad Sarfraz Khan was taken in a con ference which was attended by the Superintendent of Police and Sh. Ghulam Hussain, P. D. S. P. In fact the prayer for the discharge of Muhammad Sarfraz Khan in the challan of 21st January was inserted subsequently to the preparation of the challan and Khan Isan Khan admits that this was done at the instance of the P. D. S. P. Below that challan is a report in the hand writing of the P. D. S. P. himself that Muhammad Sarfraz Khan was found in the investigation to be innocent and that he may be discharged. We have no hesitation in holding that whoever expressed the opinion that Muhammad Sarfraz Khan was innocent and that the guilty party was Ramzan could not possibly have arrived at that result in a fair and honest manner. Neither the Deputy Commissioner nor the Public Prosecutor was consulted before this remarkable conclusion was formed and it seems to us to be plain that the challans of 12th and 21st January were an attempt to get an innocent man hanged in order to screen the real offender. Prima facie primary responsibility for this rests on Khan Isan Khan, Raja Abdur Rahman and Sheikh Ghulam Hussain P. D. S. P. though it may be that they were not free in the matter and that their opinions were the result of some improper influence. We have no material on the basis of which we may apportion liability for this abominable attempt. It is for Government to look into this scandal if they wish to. All that we find is that these challans were a dishonest and deliberate misrepresentation of the facts, that the conclusion embodied therein could not be arrived ht by any reasonable officer and that if anyone in fact arrived at the conclusion honestly he is completely unfit for being entrusted with the investigation of serious crimes. The question of sentence in this case has caused us some anxiety because we cannot infer that Muhammad Sarfraz Khan had come to Khair Din's house a second time with the intention of murdering anyone. Like a big Zamindar he carried a loaded revolver, and it was fired, as stated by Mst. Gulzar Begum herself, only after Saeed Ahmad had abused and slapped Muhammad Sarfraz Khan and felled him into the drain. The murder was not, therefore, premeditated and was committed in the course of an unanticipated altercation, though Muhammad Sarfraz Khan was initially responsible for this quarrel. We, therefore, refuse to confirm the sentence of death and convert it into a sentence of transportation for life. Muhammad Sarfraz Khan's conviction both under sections 302 and 307 of the Penal Code is upheld. The sentence of ten years' rigorous imprisonment for the attempted murder of Saeed Ahmad will run concurrently with the sentence of transportation for life. As Khushi Muhammad and Khair Din, both at the trial and before the Committing Magistrate, and Muhammad Amir, Bahadar son of Jhanda, Nausher Khan, Shahbaz Khan, Muhammad Afzal and Karam Dad appear to have given false evidence before the Committing Magistrate a notice will go to them to show cause on a date to be fixed by the office why they should not be prosecuted under sections 193, 194 and 195 of the Penal Code. A. H. Sentence reduced.