P L D 1952 Lahore 275 (PLP)

S. A. RAHMAN, J.‑Fateh Beg and Muhammad Hussain, two foot constables, were tried for the murder of one Muham mad Din by the learned Additional Sessions Judge, Lahore. He convicted them under section 302 read with section 34 Pakistan P. C. and sentenced both of them to transportation for life. He further convicted them under section 348 read with section 34 Pakistan P. C. and sentenced them to three years' rigorous imprisonment each under that section. The two sentences were ordered to run concurrently. One, Khan Muhammad, who had been tried along with these two persons was acquitted. The convicts have appealed. The prosecution case was that Muhammad Siddique (P. W. 2), a resident of village Palara, within the jurisdiction of Police Station Chung, in the Lahore District, went to Police. Post Manga to report the theft of Rs. 175 belonging to him, contained in a purse which he had secreted in a heap of grain in his house. He had suspected Muhammad Din deceased who was distantly related to him, and was staying at his house, of the theft. Muhammad Din was, therefore, taken along by him to Police Post Manga. Assistant Sub‑Inspector Bashir Hussain (P. W. 13), who was in charge of the post, did not record a report but sent the two appellants who were constables attached to the post, with Muhammad Siddique, giving them the direction that they should help in the recovery of the stolen purse from Muhammad Din. It was alleged that Muhammad Din had confessed to the Assistant Sub‑Inspector that he was the thief and had promised to produce the stolen property. Muhammad Siddique and Muhammad Din, there fore, returned to the village and soon after, the two constables reached thereon bicycles. This was on the 28th August, 1950, at about 3 p. m. In the village, when Muhammad Din was interrogated, he went back on his confession and the constables, therefore, gave him a few slaps and beat him with shoes on his buttocks. It was stated that Muhammad Din then gave out that he had thrown the purse among some bushes which he would point out. He took the constables and other villagers to a short distance from the village and a search was made for the purse at that place. It was not found. The constables then took hold of Muhammad Din, told the villagers to go back and it is suggested that they manhandled him near a kassi. They brought him back to the village and Muhammad Din 'was than under stood to say that the purse was within the kotha of Muhammad Siddique. The search in that kotha proved abortive. The con stables again began chastising Muhammad Din with fists and kicks and even sticks. In this they were assisted by Khan Muhammad, the acquitted accused, who had arrived there and had participated in the "persuasive" questioning as a prominent person of the locality. He is said to have given thrusts with the end of a stick in the sides of the deceased. While being subjected to this violence, the deceased collapsed and died soon after. The constables and Khan Muhammad then went away, leaving word with Muhammad Siddique that Muhammad Din should be buried. Muhammad Siddique, however, did not fall in with this suggestion and went over to Police Post Manga with the idea of making a report. He found no one there. He, therefore, borrowed a mare from village Manga and went to Railway Station 5 or 6 kos away, from where he sent a telegram to the Superintendent of Police, Lahore, in the following terms :‑ "Theft occurred in my house. Attended Police Manga with Muhammad Din. In charge Police Post sent two constables with us for enquiry in the case without register ing the case in the Police station. Constables beaten Muhammad Din severely in the village till death occurred at 3 o'clock and fled away back leaving dead body in the village." From there Muhammad Siddique proceeded to Lahore next morning and lodged a complaint in the Court of the Additional District Magistrate, Exhibit P. B. The learned Additional District Magistrate ordered the police to investigate. On his way back to the village, Muhammad Siddique met two persons at village Tibba while he was still two miles from Palara and they told him to go to the Assistant Sub‑Inspector at the police post. Muhammad Siddique complied and Bashir Hussain, Assistant Sub‑Inspector recorded a statement of his at the police post. The Assistant Sub‑Inspector then started investigation. The defence of the appellants at the trial was that they had never gone to Palara and had given no beating to the deceased. They ascribed their implication in the case to alleged enmity on the part of the Assistant Sub‑Inspector Bashir Hussain, who, they suggested, wanted to save his own skin in this case. No evidence in defence, however, was called in support of this version. The autopsy on the dead body of Muhammad Din showed multiple injuries which we're categorised by the doctor under 14 heads. There were contusions all over his back varying from 5" x 1" to 2" x 1". The sole of his right foot was swollen and there was contusion on its dorsum. There were patches of contusions on both buttocks, 5" x 5" and 4" x 3". There were also patches of contusions on the right and left sides of his chest 5" x 5" and 3" x 3". Besides these, there were some other injuries on various parts of his body. Under the contusion patches on the sides of his chest, 6 lower ribs on the right side and 4 on the left side, were found to be fractured. The ends of the fractured ribs had pierced the lung's and caused the death, which, according to the doctor, was the result of shock and haemorrhage following laceration and bruising of lungs by the fractured ribs. The prosecution story was sought to be supported at the trial by the evidence of P. W. 2 Muhammad Siddique, P. W. 3 Shahaba, P. W. 4 Aziz Din, and P. W. 5 Barkat. None of them was apparently actuated by malice against any of the accused persons. They did not even know their names previously. Their evidence was criticised on the ground that they had made varying statements about the facts of the case at different stages. Whereas in the telegram (Exhibit P. A) and in the complaint (Exhibit P. B), Muhammad Siddique had clearly stated that Muhammad Din had attended at the police post with him and the Assistant Sub‑Inspector had then deputed the two constables to go and tackle him in the village, he resiled from that part of the story in Court and suggested that he had gone alone to the police post to make a report, and that the deceased had not gone there. He stated, however, that the Assistant Sub‑Inspector had directed the constables to go and help him in the recovery of his purse. He had also not made any mention of Khan Muhammad's presence or his participation in the assault on the deceased, either in the telegram or in the complaint. For the first time‑, apparently, Khan Muhammad was mentioned in the statement recorded by the Assistant Sub‑Inspector as the police post, after Muhammad Siddique's return from Lahore. He was confronted with that statement wherein he had alleged that he had met Fateh Beg and Muhammad Hussain constables, by chance, while they were bathing, at 10 or 11 p.m. and they had themselves volunteered to go and help him in tracing out the thief. The hand of the Assistant Sub‑Inspector is clearly visible behind this change in the position of Muhammad Siddique. It is obvious that the Assistant Sub‑Inspector was anxious to absolve himself of all responsibility in the matter and gave a twist to the com plainant's statement which he recorded at the police post, in order to achieve that end. Indeed, it was suggested by Mr. Muhammad Sharif on behalf of the Crown that Khan Muhammad's inclusion among the assailants of the deceased was also inspired by the same motive, as the Assistant Sub Inspector may have been anxious to dilute the story as against the constables whom he had himself deputed on the job. This seems to be a plausible explanation of Khan Muhammad's mention as one of ‑the culprits at a late stage in the case. We are not, therefore, inclined to attach any importance to the variation in the story introduced by Muhammad Siddique in Court. It does not really affect the essentials of the case against the present appellants. The attempt to whittle down the case against the appel lants made by Muhammad Siddique and the Assistant Sub -Inspector seems to have proved infectious and to have affected even the evidence of the other P. Ws. For instance, Shahaba, professed to have seen only the earlier part of the occurrence at the haveli of Muhammad Siddique when the two constables slapped the deceased and gave him shoe- beating an the buttocks. He further deposed to having gone with the constables to the bushes where a search was made. He then came away but heard cries of the deceased who was evidently being beaten by the constables. When the constables brought back the deceased to the haveli of Muhammad Siddique and Khan Muhammad arrived and began interrogating Muhammad Din, the witness went away to attend to his own work. He returned two hours later to find Muhammad Din lying dead. He had not seed the constables giving any stick blows to the deceased. In cross‑examination he even went to the length of saying that before the constables had initially started lapping the deceased, he was uttering the words "hai hai". The suggestion evidently was that Muhammad Din had already been subjected to violence at the Police Post Manga and was in pain when he arrived in the village. This fact was mentioned by him only during cross‑examination and apparently found no place in his deposition before the committing Magistrate. He also stated that the constables were empty‑handed when the deceased was taken to the bushes, and brought back to the haveli. Aziz Din and Barkat P. Ws' also asserted that the constables only gave a beating to the deceased with slaps and fists. Both these witnesses tried to make out that they had seen only a part of the occurrence. Aziz Din like Shahaba suggested that before any beating started Muhammad Din sat smoking hukka and even at that moment he was uttering the words "hai hai". It is significant, however, that in his examination‑in‑chief he had merely said that he was smoking hukka and the addition of "hai hai " occurs only in his cross‑examination. It is extremely unlikely that if the man was in pain and' was groaning, he should have also been smoking hukka. It appears to us that these were gratuitous admissions made by the witnesses in order to help the culprits by suggesting that the deceased must have been beaten at the police post earlier. In the committing Court all these witnesses, it appears, had mentioned that the constables had used a stick also while beating the deceased. The learned Sessions judge directed the transfer of the statements of all these P. Ws. made before the committing Magistrate, under section 288 of the Criminal Procedure Code to the sessions record, and read them as evidence in the case. There is no note on the file to show why the previous statement of Muhammad Siddique was 'thus treated as evidence but in respect of the other witnesses, the learned Sessions judge has expressly recorded that he was resorting to this procedure because their statements against the accused at the trial were discrepant as compared with their de positions in the committing Court. At the same time, those pre vious statements were not put to the witnesses and they were given no opportunity to explain, the discrepancies between them and their statements at the trial. Mr. Faiz Muhammad on behalf of the appellants has challenged the legality of this procedure. He contends that the previous statements could not be legally read as evidence in the case unless the witnesses had been confronted with them and given a chance of explana tion as required by section 145 of the Evidence Act. As to whether section 288 of the Criminal Procedure Code is controlled by section 145 of the Evidence Act or not, there is a conflict of authority. In Sadar v. Emperor A I R 1929 Lah. 111, a Division Bench of this Court took the view that the transfer of a statement of a witness before the committing Magistrate found to be made, though denied by the witness, to the record of trial without allowing an opportunity for expla nation of a discrepancy, was faulty, and that the existence of one trifling divergency, though unexplained, would not justify the use of section 288 of the Criminal Procedure Code. The question, however, whether section 145 of the Evidence Act was attracted when resort was had to section 288 Cr. P. C., was not expressly discussed. In Muhammad Sarwar v. Emperor, 43 Cr. L. J. 828 (D. B.) the contrary view prevailed before another Division Bench of this Court. It was laid down in that case that the words, "subject to the provisions of the Evidence Act" appearing in section 288, Criminal Procedure Code, could not be read so as to limit the purpose for which the deposition may be used. The deposition, according to that Bench, is to be treated as evidence in the case for all purposes and it would be incorrect to say that section 145 or section 155 of the Evidence Act governed the position. It was expressly ruled that depositions taken before a committing Magistrate which contradict the evidence given in the Sessions Court could be used as evidence without putting to the witness portions of the statement with which it was sought to contradict him. The decision of a Single Bench of the Allahabad High Court per contra in Queen Empress v. Dan Sahai, I L R 7 All. 862 was dissented from. It was pointed out that the view taken therein had received strong disapproval of another Bench of the same High Court in Emperor v. Dwarka Kurmi, I L R 28 All. 683. Ram Lal, J., who wrote the judgment in Muhammad Sarwar v. Emperor, mainly relied on a decision of their Lord ships of the Privy Council in Fakira v. Emperor, A I R 1937 P C 119. With all respect, however, it appears that the ques tion under discussion in the present case was not really touched upon, in the judgment in that case. All that was laid down in the Privy Council judgment was that the words "subject to the provisions of the Evidence Act 1872" occurring in section 288 Criminal Procedure Code could not be read so as to limit the purposes for which the deposition before the committing Magistrate could be used. It was observed that when such a statement had been admitted into evidence under section 288 Criminal Procedure Code, it could be used for any purpose and not merely for the purpose of cross‑examination within the provisions of section 155 of the Evidence Act as was contended before their Lordships. The Privy Council autho rity, therefore, furnishes no support for the view expressed in Muhammad Sarwar v. Emperor. In Nanhu Mahton v. Emperor, A I R 1930 Pat. 338, it was held that section 145 of the Evidence Act governs section 288 of the Criminal Procedure Code. This authority was described in Muhammad Sarwar v. Emperor, as in direct conflict with the decision of the Privy Council in Fakira v. Emperor. With due deference, this does not appear to be the case. Our attention has been invited by Mr. Faiz Muhammad to a recent decision of the Supreme Court of India reported as Tara Singh v. The State, A I R 1951 Supreme Court 441. After noting the conflict of opinion on the point involved, the learned Judges laid down in that case that the evidence recorded by the committing Court could not be used as evidence under section 288 Criminal Procedure Code, at a sessions trial, unless the witness is confronted with his previous statement as required by section 145 of the Evidence Act This view seems to us to be in consonance with the language of section 288, Criminal Procedure Code. The section reads as follows :‑ "The evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the Presiding judge, if such witness is produced and examined, be treated as evidence in the case, for all purposes, subject to the provisions of the Indian Evidence Act, 1872". The words "for all purposes subject to the provisions of the Indian Evidence Act, 1872" were added to this section by a amendment in 1923. Surely, one object of treating the previous statement as evidence would be to contradict the statement of a witness made at the Sessions trial and section 145 which is a part of the Evidence Act, should come into play, on the language of section 288, Criminal Procedure Code. After the proper procedure has been followed and the Sessions judge has in his discretion admitted the previous statement under section 288, Criminal P. C. as evidence at the trial, it may of course be treated as evidence in the case for all purposes. The dictum of the Privy Council in the case discussed above, makes no reference to the procedural aspect of the question. We are, therefore, inclined to hold that as the proper proce dure was not followed in the present case by the learned Sessions judge, the previous depositions of the witnesses should not be treated as evidence in the case. We may add that even if we had been of the opinion that no illegality was imported into the procedure adopted by the learned Sessions Judge, we should have still considered it desirable that the provisions of section 145 of the Evidence Act should have been followed. That course should always be adopted, in fairness to the accused as well as to the witness concerned. We must, therefore, hold that on the basis of the evidence on record the two appellants beat the deceased with fists and slaps only. It is, however, clear from the medical evidence that the ribs of the deceased could have been broken by repeated fist blows. The deceased was an old man whose bones were brittle according to the doctor. We are not impressed with the argument that the deceas ed may have received a beating at the police post before returning to the village. Even if there was some truth in that allegation, that beating could not have been of a severe character, since he apparently walked back to the village hail and hearty. The serious injuries were clearly inflicted on the deceased after he was interrogated in the village itself by the appellants. After a careful review of the evidence on the record we are satisfied that the prosecution version represents the sub stantial truth in this case. The appellants are proved to have been the persons who beat the deceased and inflicted injuries as a result of which Muhammad Din died. The P. Ws, had ample opportunity to see these two constables at the spot and they identified them in Court. Muhammad Siddique even stated that he had seen the constables on previous occasions as well, though he did not know their names. The suggestion that the two constables were made scapegoats by the Assistant Sub‑Inspector rests on no solid foundation. There was hardly any reason why the villagers should have fixed the blame on these two constables without any rhyme or reason. The matter, however, does not end here. The question is as to the nature of the offence committed by the appellants. Obviously the main anxiety of the constables was to make the deceased confess and give correct information about the place where the stolen purse was secreted. They had no intention to kill him or to cause him such injuries as would in the normal course lead to death. It has been conceded‑by the learned counsel for the Crown that in the circumstances of this case; it would be doubtful whether even a knowledge could be attributed to the appellants that they were likely to cause the death of Muhammad Din by their action. They used only their hands for beating him and shoes for striking him on the buttocks or the soles of his feet. At the most, it could be said that in law they may have intended to cause grievous hurt with repeated fist blows. They actually did cause grievous hurt inasmuch as the ribs of the old man were broken. Unfor tunately the ends of the broken ribs entered the lungs of the deceased killed him but that was, in all probability, a result which the appellants never contemplated. We consider that the offence committed by the appellants falls within the purview of section 331 of the Pakistan Penal Code and not 302, Pakistan P. C. We, therefore, alter convictions of the appellants to those under section 331 Pakistan P. C., and reduce their sentences to six years' rigorous imprisonment each together with a fine of Rs. 200 each or in default one year's rigorous imprisonment further each. The appeal is allowed to this extent only. A. H Conviction changed and sentence reduced