P L D 1959 (W (PLP)

ORTCHESON, J.‑This is an appeal from the order of Mr. Muhammad Ilyas Kazi, Sessions Judge, Jacobabad, dated 30th October 1958, convicting Shahnawaz, aged 25 years, Ghoso aged 22 or 35 years, and Dino aged 22 or 30 years, under section 302/34, P. P. C. and sentencing them to death for the murder of one Gul Sher. A fourth accused, Ghulam Ali, is, or was, absconding. The case is also before us under section 374 of the Criminal Procedure Code for confirmation of the death sentences.

2. According to Abdul Karim, the appellants are inter related, Shahnawaz's female cousin being married to Muradali, uncle of Ghoso. The relationship between Shahnawaz and Dino and between these appellants and Ghulam Ali, absconder, is not specified.

3. The prosecution case, as related by Abdul Karim, P. W. 5 is that there was previous enmity between the appellants and the deceased. Gul Sher was the servant of one Samander Khan and was responsible for having Hazuro, brother of Ghoso appellant, who was absconding in a criminal case, apprehended by Samander Khan's men. Hazuro resisted arrest and was killed. As a result the appellants were awaiting an opportunity to have their revenge.

4. In the first information report other causes of enmity were given, but were not repeated by Abdul Karim, the depon ent, at the trial.

5. The story of the occurrence itself is that at about 5 p. m. on the 15th of January 1958, Abdul Karim, P. W. 5, Sadullah, P. W. 6, Ghulam Kadir, P. W. 7, Ghulam Rasool, P. W. 8 and Abdul Razak, P. W. 9, were on their way back to their village from Jacobabad, where they had been delivering paddy at the instance of one Mir Ghulam Khan, who is Ghulam Kadir's employer. On the way the deceased, who was riding a mare, passed them, and went on ahead. When he was at a distance of some 60 paces, the appellants and Ghulam Ali appeared, armed with hatchets, and attacked them. He fell off his horse and was then given further blows. After killing the deceased, the assailants ran away, pursued by the witnesses with the exception of Sadullah, P. W. 6, who remained with the dead body. Ghoso, Dino and Ghulam Ali succeeded in making their way into the jungle, but Shahnawaz was caught in the house of Hazuro, P. W. 11, of village Gaji Brohi, into which he had taken shelter. The pursuers informed Hazuro that Shahnawaz had committed a murder and demanded that he be handed over, but Hazuro refused to do so, directing them to inform the police. Abdul Karim accordingly went to police station Jacobabad, at a distance of 1 or 2 miles from the scene of occurrence, and lodged the First Information Report Ex. 13 at about 8 p.m.

6. After recording the report Moula Bux, Mounted Head Constable, P. W. 12, then in charge of the Saddar Police Station, went to the spot. As it had grown dark, no investigation was carried out that night, but on the following morning, after preparing the usual documents, Moula Bux went to the house of Hazuro, P. W. 11, and arrested Shahnawaz. The remaining culprits had absconded, Ghoso and Dino being arrested on the 5th of February 1958.

7. The post mortem examination of the body of the deceased was carried out by Dr. Badruddin, P. W. 8 before the Committing Court, who found a total of 7 incised wounds, of which 5 were on the head. The right parietal and occipital bones were broken in pieces. Injuries 1, 4 and 5 were individually sufficient in the ordinary course of nature to cause death.

8. The appellants pleaded not guilty but produced no defence. They ascribe the case to enmity, and Shahnawaz who also filed a written statement, alleges that be was returning home after a condolence visit in village Khangi when he saw Abdul Karim, Ghulam Kadir, Ghulam Rasool and Abdul Razak coming running. They enquired who he was, and he gave them his name and address. They next asked him whether he had seen any person armed with hatchets running away. Shahnawaz replied that he had not, where upon the witnesses abused him and were about to strike him with their weapons, but he saved himself by running into Hazuro's house, where he was later arrested.

9. A perusal of the evidence in this case shows that the pro secution witnesses have not been entirely straight forward. Even Abdul Karim, the son of the deceased, has made contradictory statements at the trial and in the First Information Report on such points as whether his father accompanied him and the other witnesses to Jacobabad, whether one of the purposes of their visit was to meet relations, and whether the two of them cultivated the land of one Ali Bakhsh Omrani, and though these discre pancies are not so serious as to be fatal to the prosecution case, some corroboration is required of his testimony.

10. So far as Sadullah, Ghulam Kadir, Ghulam Rasool and Abdul Razak are concerned, it appears that they are connected with the deceased Abdul Karim, since in the earlier stages of the case they admitted that Gul Sher went with them to Jacobabad. The reason for their reprehensible attempt to conceal this fact at the trial may be that they are now trying to make themselves out to be independent and disinterested witnesses, but the result is that their evidence must be accepted with caution. At the same time, there is no ground for doubting that they saw the occurrence.

11. Taking first the case of Ghoso and Dino, we are of the opinion that the prosecution have failed to prove their guilt beyond reasonable doubt. So far as Abdul Karim is concerned, there was some previous enmity between his father and the appellants, while the remaining witnesses do not belong to the same village as Ghoso and Dino, and the possibility that they are mistaken in stating them to be two of the culprits, cannot be reasonably excluded, particularly since no identification parade was held.

12. For the above reasons, we give Ghoso and Dino the benefit of the doubt, set aside their convictions and sentences, and acquit them.

13. The case against Shahnawaz appellant at first sigh stands on a different footing, since corroboration of the evidence of the eye‑witnesses against him appears to be supplied by Hazuro. P. W.

11. This witness is independent, but unfortunately for the prosecution there is a serious discrepancy between his statement and that of Moula Bux, Mounted Head Constable, P. W. 12, on the question of when Shahnawaz was entrusted to police custody. Hazuro's version is as follows :‑ " One of them went to report to Police. I then took accused Shahnawaz out telling him that those who came chasing him had declared that he had committed murder and they wanted him. Shahnawaz remained silent. He did not reply. I then took accused Shahnawaz out soon same evening and I was taking him to be produced before Haji Abdullah, who is a Kamdar and lives at a call's distance from my house. The remaining 3 witnesses also accompanied us. On the way, Police Head Constable Moula Bux and complainant Abdul Karim met us. I then handed over the present accused Shahgnawaz to the Head Constable Moula Bux, who took him to Thana. It has become night time . . . . . . The Head Constable Moula Bux had met us outside my village at distance of 500 paces."

14. It will be seen that according to the above statement Hazuro handed over Shahnawaz appellant to Moula Bux Head Constable very shortly after Abdul Karim left for the police station to make the report, and the appellant was handed over to the police, not at Hazuro's house but outside the village.

15. The statement of Moula Bux, Head Constable. on the point is as under :‑ " I passed night at Wardat. I did not go to make efforts to apprehend accused Shahnawaz during the night. It was my laziness. I should have gone there at once lest the accused Shahnawaz reported murderer may have escaped. It was my mistake. I did not search the house of P. W. Hazuro to ascertain whether Shahnawaz had left hatchet the weapon of offence there." In other words, according to Moula Bux it was only on the following morning that he went to take Sahanawaz into custody, and he arrested him at the house, and not outside the village as alleged by Hazuro. These two versions are mutually contradictory, and it is impossible to reconcile the discrepancy. The only conclusion that can be drawn is that on this vital point the investigation has not been straight forward. It is impossible to tell which of the two witnesses is speaking the truth, and there is consequently a possibility that the untruthful witness is Hazuro. If his testimony cannot be relied upon, the result is that it cannot be used to corroborate the eye‑witnesses, and as we have already held, the evidence of the said witnesses is of such a nature as to require corroboration. We have accordingly no option but to give Shahnawaz also the benefit of the doubt.

16. We therefore accept his appeal, set aside his conviction and sentence, and acquit him. All the appellants should be released forthwith if not required to be detained in any other case. The sentences of death are not confirmed.

17. Before we conclude, one important matter of procedure requires to be mentioned. Section 145 of the Evidence Act requires that if it is intended to contradict a witness by a previous statement made by him in writing or reduced into writing, his attention must, before the writing can be proved, be drawn to those passages which are to be used for the purpose of contradic ting him. While scrutinizing the record of the present case, we have noticed that there is nothing to show that this essential requirement of law has been complied with. It may be that in fact the witnesses were confronted with the statements used to contradict them, but this should be apparent on the face of the record, and not left to be a mere matter of conjecture. In the words, the Court should make a note showing clearly that the attention of the witness was drawn to the statement in question.

18. As pointed out by Monir, C. J., in his "Law of Evidence" (4th edition) :‑ " It is of great importance to remember that, when a witness is sought to be contradicted by his statement to the, police, his attention has got to be drawn to that part of the statement which is inconsistent with his statement in Court, by reading out to him that particular part of the statement from the copy, so that he may explain the inconsistency. Where a witness has made a long statement to the police, and the only question put to him by the defence is whether a particular exhibit is his statement, it is impossible for the witness to understand what portion of it would be used for contradicting him. When a witness has thus been confronted with the statement or particular portions of it, only that much of the statement can be admitted in evidence with which he has thus been confronted and which has subsequently been duly proved. Portions of ~ he copy, therefore, which have been so used should be marked and exhibited in the case. The rule as to confrontation applies to illiterate witnesses."

19. In the present case it also came to our notice that the learned Sessions Judge did not have the statements of the witnesses which had been used to contradict them properly proved and exhibited. In this connection the attention of the learned Sessions Judge is drawn to another passage from Monir, C. J's Law of Evidence :‑ " There is no presumption as to the genuineness of the statement contained in the police diary, and, therefore, the record of the witness's statement to the police has to be proved. This may be proved in any manner in which a writing is permitted by law to be proved, though ordinarily the officer who recorded the statement should be called to depose that the copy is a true copy of the record of the witness's statement to the police. In every case where a witness is confronted with a portion of his police statement which he repudiates, the police officer recording his statement should be questioned specifically with regard to that portion of the statement. The practice of mere asking the police officer perfunctorily whether a particular document represents the witness's statement as a whole cannot but be condemned."

20. In the present case the police officer was not asked even perfunctorily whether any particular document represented the witness's statement as a whole, Moula Bux making only the following vague assertion :‑ " I recorded statement of P. W. Ghulam Qadir, Ghulam Rasul and Abdul Razak there and also of P. W. Hazuro." It is obvious that this cannot by any stretch of imagination be considered as proving the witnesses' statements. K. B. A./A. H. Appeal accepted.