1988 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑This Criminal Appeal No.621/84 and connected Murder Reference No.27/85 arise from the judgment of learned Additional Sessions Judge, Kasur, whereby he on 11‑11‑1984 convicted Muhammad Aslam alias Achhi (15) and Muhammad Rafiq (21/22) appellants under section 302/34, P.P.C. for the murder of Hakim Ali and sentenced them as under:‑

Muhammad Aslam appellant:‑

Death and a fine of Rs.10,000 or in default thereof 3 years' R.I. Muhammad Rafiq appellant:‑

Imprisonment for life and a fine of Rs.10,000 or in default thereof 3 years' R.I. It was directed that the fine if realized, half of it be paid to the legal heirs of the deceased.

2. The occurrence took place on 12‑12‑1983 at 9/10 a.m. in the area of Rao Khan Wala at a distance of 9 miles from Police Station Mustafabad, District Kasur. The F.I.R. is statement Ex.P.C. of Mst. Jannat Bibt P.W.8, widow of the deceased which was recorded by karim Nawaz, Inspector P.W.11 on the same day at 12‑35 p.m. on the spot. Formal F.I.R. Ex.P.C./1 was drawn up by Muhammad Ashraf, Moharrir Head Constable, P.W.2 at Police Station Mustafabad on the same day at 1‑35 p.m.

3. The motive as alleged by the prosecution was that Muhammad Rafiq appellant had developed illicit relations with Mst. Halima Bibi, tile widow of the brother of the deceased. About 4/5 days before the occurrence, there was a quarrel between Muhammad Rafiq appellant and Hakim Ali deceased on account of illicit relations of Muhammad Rafiq with Mst. Halima Bibi, hence this occurrence.

4. As tar the main occurrence, 'it has been stated that at the eventful time Hakim Ali was going from the land of Haji Nawab Din at his village Rao Khanwala, carrying a bundle of fodder. Mst. Jannat Bibi was going to the fields for easing herself. Nawab Din P.W. was working in his field. Nazir P.W.9 teas preparing Khaal. Muhammad Hslam and Muhammad Rafiq appellants waylaid the deceased. Muhammad Rafiq raised Lalkara and caught hold of Hakim Ali in his Japha. Muhammad Aslam inflicted Chhuri blow in the chest of Hakim Ali who fell down on the ground and expired on the spot. Nawab Din P.W.7, Mst. Jannat Bibi P.W.8 and Nazir P.W.9 had allegedly seen the occurrence. The appellants then ran away.

5. On 13‑12‑1983, Dr. Tariq Mehmood, P.W.1 conducted post‑mortem examination on the dead body of Hakim Ali. He found:‑

"a wound 4 x 1 c.m. on right side of lower chest 8 c.m. below and just medial to right nipple. 5th and 6th ribs cartilage was found to be cut on right side of lower chest below and just medial to right nipple". On internal examination, diapharam on the right side was found cut and its size was x 4 c.m. There was also a cut of 4 c.m. in length through and through cutting the middle lob of liver and then to the right side of dia‑phragm. In his opinion, the injury was sufficient to cause death in the ordinary course of nature. The injury teas caused by sharp‑edged weapon. The death was immediate, and the time between death and post‑mortem was 36 hours. In cross‑examination, the doctor stated that the injuries mentioned in the post‑mortem report may be caused by one blow or more. He further stated that all the three injuries which were found on the dead body may have been caused by one or more than one sharp‑edged weapons. The doctor also stated in cross-examination that these injuries could be caused by a Toka if many attempts were made but cannot be caused by a single blow.

6. The appellants were arrested on 20‑12‑1983. On the same day Muhammad Aslam appellant led to the recovery of blood‑stained Chhuri Ex.P6 from his house which was taken into possession vide memo Ex.PG attested by Nawab Din P.W.7 and Nazir P.W.9. The recovery was effected by Karim Nawaz Inspector P.W.11. The Serologist Report Ex.PM reveals that Chhuri Ex.P6 was stained with human blood.

7. To prove its case, prosecution produced 11 witnesses. Nawab Din P.W.7, Mst. Jannat Bibi P.W.8 and Nazir P.W.9 claim to have seen Muhammad Rafiq appellant holding Hakim Ali deceased in his Japha and Muhammad Aslam inflicting Chhuri blow in the chest of the deceased. Nawab Din and Mst. Jannat Bibi also supported the alleged motive. Nawab Din P.W.7 and Nazir P.W.9 stated that blood‑stained Chhuri Ex.P6 was got recovered by Muhammad Aslam appellant in their presence. Dr. Tariq Mehmood P.W.1 has proved the post‑mortem examination report. Karim Nawaz Inspector, P.W.11 had arrested the appellants effected recovery of bloodstained chhuri Ex.P6 from Muhammad Aslam appellant and investigated the case. The rest of the evidence is of formal nature.

8. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances they raised the plea of false implication cue to enmity. They did not produce any evidence in defence.

9. The trial Court has disbelieved the alleged motive, recovery of blood‑stained Chhuri Ex.P6 from Muhammad Aslam appellant and also the presence of Mst. Jannat Bibi P.W.8 at the place of occurrence in paras Nos. 11, 14 and 12 respectively of the judgment. While believing the statements of Nawab Din P.W.7, Nazir P.W.9 and medical evidence, the learned trial Court has convicted and sentenced the appellants as stated above.

10. Learned counsel for the appellants contended that Nawab Din and Nazir P.Ws are not reliable, inasmuch as, they are closely related to the deceased; that their presence on the spot is highly doubtful and that since the police had obtained their thumb impression on their statements recorded under section 161, Cr.P.C. in contravention of section 162, Cr.P.C., therefore, their evidence must be rejected. Learned counsel for the State has supported the judgment of the trial Court.

11. We have considered the submission made by the learned counsel for the parties with care. We find that the trial Court has disbelieved the alleged motive, recovery of blood‑stained Chhuri Ex.P6 from Muhammad Aslam appellant and the statement of Mst. Jannat Bibi P.W.8 and has convicted the appellants on the statements of the two eye‑witnesses namely Nawab Din and Nazir P.Ws. So, the crucial question for consideration is as to whether these two witnesses can be safely relied upon in convicting the appellants: We find that Nawab Din and Nazir P.Ws are real brother of the deceased and there are reasons to doubt that they, in fact, saw the occurrence. They stated that they were attracted to the place of occurrence on the alarm raised by Mst. Jannat Bibi. The trial Judge has for good reasons disbelieved the presence of Mst. Jannat Bibi P.W.8 at the tine of occurrence, and we do not see' any reason to disagree with him. In this view of the matter, the claim of Nawab Din and Nazir, P.W.9 that they saw the occurrence appears to be doubtful. If Mst, Jannat Bibi P.W.8 was not present on the spot, as rightly held by the trial Court, and had not raised alarm, then neither they could be attracted to the spot nor could they see the occurrence. Furthermore, they have categorically stated that the police had obtained thumb impression on their statements recorded by it. This, to our mind, is a clear violation of the mandatory provisions of subsection (1) of section 162, Cx'.P.C., which may be reproduced advantageously:‑

Section 162 Cr.P.C. Statement to police not to be signed: Use of statements in evidence.‑‑(1) 'No statement made by any person to a Police Officer in the course or an investigation under this chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police‑diary or otherwise or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that, when any witness is called for, the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the re‑examination of such witness, but for the purpose only of explaining any matter referred to in his cross‑examination: Provided, further that if the Court is of opinion that any part of any such statement is not relevant to the subject‑matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in public interest, it shall record such opinion (but not the reasons therefor) and shall exclude such part from the copy of the statement furnished to the accused." On the examination of the aforesaid provisions of law, it is very much obvious that the wisdom behind this section was/is that the witnesses should be free to make statement before the Court unhampered by anything which they might have stated or might have been made to state to the police. The result of witness's signatures/ thumb impression having been obtained on their statements reduced into writing, would be to bound them down to the statements so recorded or at any rate to give them the impression that they were not free to make a different statement. Despite this observation, we feel that the contravention of the provisions of section 162, Cr.P.C. would not, by itself, be ground sufficient for quashing conviction or for rejecting or for excluding evidence of such witnesses from consideration, but the value of evidence of such witnesses will certainly lessen as a consequence of the contravention of this statutory safeguard against improper and undesirable practice and as such it would be highly unsafe to place implicit reliance on the statement of such witnesses. Since in the instance case, the two eye‑witnesses have categorically stated that the Investigating Officer had obtained their thumb impressions on their statements made to him and reduced into writing, therefore, there can be no two opinions that at least an impression had been created in the mind of the witnesses that they were not free to make a different statement and in case they make any statement in favour of the accused, they may be prosecuted, so it would be in accordance with the safe administration of justice in criminal cases that we should insist for additional independent evidence or circumstances to corroborate the statements of these witnesses, qua the appellants, which we do not see in this case. The two eye‑witnesses are the real brothers of the deceased. There is no circumstantial guarantee or judicial certainty of their presence on the spot at the time of occurrence. The F.I.R. was admittedly recorded by Karim Nawaz, Inspector on the spot. For all these reasons, we are of the view that the prosecution has not been able to prove its case against the appellants beyond reasonable doubt. For what has been said above, while giving them benefit of doubt, the appellants are acquitted of the charge. They shall be released forthwith, if not required to be detained in any other case. Death sentence is not confirmed. W.Y.H./M‑556/L Appeal allowed.