P L D 1969 Peshawar 335 (PLP)

SHAH ZAMAN BABAR, J.

‑Bakhmir, son of Mad Mir, aged 32 years, Hajam of Khojari Babar, and his friend Sahib Khan, son of Spingul, aged 38 years, Zamindar of Khojari Jana, Police Station Ghoriwala, Tehsil and District Bannu, were tried for the murder of Zardad Khan Patwari, aged 50/55 years, son of Tor Ali Khan and attempted murder of Mst. Mehrzada, aged 8/9 years, daughter of Sher Zaman (P. W. 6), and Niaz Muhammad (Niaz Khan), son of Hassan Muhammad, aged 7/8 years (not examined on account of tender age) on the 29th of December 1964, at about peshiwela in village Khojari Babar. The case was tried by Mr. M. E. Hayat, Ex‑officio, Additional Sessions Judge, Derajat, who by his judgment dated 14‑10‑65 held that the prosecution had failed to prove a case against the accused beyond reasonable doubt, and therefore, acquitted them.

2. The State has appealed against their acquittal.

3. This tragedy occurred in the hamlet (small village) called Khojari Babar, which consists of about 30 houses. On the 29th of December 1964, Muhammad Ibrahim Khan Alizai (P. W. 2), Tehsildar Bannu, had come to the village in connection with the attestation of mutations. He was holding his Jalsa‑i‑Am at a distance of 165 paces from the Chowk of the village, where the occurrence took place. The deceased Zardad Khan Patwari along with his brother‑in‑law Amir Ali Khan (P. W. 8) of the same village, was sitting in front of the shop of Mehr Khan and chatting, on 29‑12‑64 at about peshiwela. Makhan (P. W. 9) of Bhangi Khan Khojari had also stopped to take rest on his way from his village to the fields, in front of the shop of Mirza Ali in the same Chowk. Mst. Mehrzada (P. W. 6), aged about 8/9 years, and Niaz Muhammad, another child of 7/8 years of age, were playing near about the deceased in the same Chowk. It is alleged that in the meantime Sahib Khan accused‑respondent armed with a shot‑gun arid Bakhmir accused‑respondent armed with a rifle came over there. Both of them fired one shot each simultaneously at Zardad. The shots hit Zardad and the stray pellets hit the two children. Both the accused‑respondents fled away. The shots were heard by Muhammad Ibrahim Tehsildar (P. W. 2). He sent Miraband (P. W. 7) lambardar and chaukidar of Khojari Babar to the site of the occurrence. Miraband heard from the people present on the spot that Bakhmir and Sahib Khan had effectively fired at Zardad, hitting him and the two children. Miraband brought back this message to the Tehsildar, who hurried to the scene of the occurrence along with Miraband Lambardar. He found Zardad deceased dead at the spot. The Tehsildar recorded the statement Exh. P. C. of the injured Mst. Mehrzada as a dying declaration and got her thumb‑impression on it. In this statement the girl charged Bakhmir and Sahib Khan respondents for having fired two shots with banducs at her, Zardad Patwari and Niaz, resulting in the death of Zardad and causing injuries to her and Niaz. The Tehsildar sent his own report Exh. P. A/2 and the state ment of Mst. Mehrzada(Exh. P. C.) through Miraband Lambardar to Police Post Kaki, where Sattar Jan, A. S. I. (P. W. 11) incorporated both at Serial No. 21 vide Exh. P. A/1, on the same day viz. 29‑12‑64 at 4 p. m. and sent the same Murasila to Police Station Ghoriwala for registration of the case. Haqdad Khan, S. 1. (P. W. 5) of Police Station Ghoriwala incorporated the Murasila Exh. P.A/1 in the F. I. R. Exh. P. A. The Police Post Kaki is at a distance of about a mile from the place of occurrence. The two injured Mst. Mehrazada and Niaz were brought by Miraband to the Police Post. The A. S. 1. prepared the injury sheets of both the injured, and sent them for medical examination. The A. S. I. went to the spot and found Zardad dead at the spot. He prepared the injury sheet and the inquest report of Zardad deceased and sent the dead body to the mortuary. The A. S. I. picked up blood‑stained earth from the spot and sealed it into a parcel vide memo. Fxh. P. K. Two pellets Exhs. P. 3 and P. 4 along with four pieces of cardboard, Exh. P. 5. were also taken into possession from the spot vide memo. Exh. P. J/1. The A. S. I. prepared the site plan Exh. P. J. Point 1 on the site plan denotes the place where the deceased was shot dead while sitting on a peeri. Blood was present at points 1 and

2. Points 3 and 4 indicate the places from where Bakhmir and Sahib Khan accused allegedly fired at the deceased. The distance between points 1 and 3, is 3 paces, and points 1 and 4, is also 3 paces. Points 3 and 4 are one pace apart. Point No. 5 shows the place where the injured children were playing at a distance of 5 paces from point No.

1. Points Nos. 6 and 7 denote the place where P. W. Amir Ali and Makhan were allegedly present. The distance between points 1 and 6 is shown two paces while the distance between points 1 and 7 was shown 10 paces. Point No. 15 denotes the place where the Tehsildar was present at a distance of 165 paces from the place of occurrence. The two accused‑respondents had absconded after the occurrence. Proceedings under sections 87/88, Cr. P. C. had been taken against both the respondents. Proceedings under section 512, Cr. P. C. were pending in the Court of the Magistrate when the two respondents surrendered to the Deputy Commissioner, Bannu on 26‑4‑

65. Both the respondents were released on bail by the Ilaqa Magistrate on the same day.

4. Dr. Nisar Ahmad appeared as P. W. 1 to prove the handwriting of Dr. Rashid Mabmud on the injury sheets. Exh. P. E. of Mst. Mehrzada, Exh. P. F. of Niaz Khan, and injury sheet Exh. P. G., inquest report Exh. P. H. and post mortem report Exh. P. I. of Zardad deceased,, because Dr. Rashid Mahmud had resigned from service and had proceeded to Arabia. The address of Dr. Rashid Mahmud was not known.

5. Dr. Rashid Mahmud examined Mst. Mehrzada, aged about 8 years, on 29‑12‑64 at 5‑30 a. m. and found the following injuries on her person :‑ (1) A fire‑arm entrance wound, 1/3" x 1/3'' on the abdomen about 3'' to the right of umbilicus. (2) Fire‑arm exit wound, 3/4" x 3/4" in the abdomen, 1 to the left of the umbilicus. Omentum herniating out of the wound. The injuries were caused by fire‑arm within about 2 to 3 hours. The nature of the injuries was serious.

6. The same doctor also examined Niaz Khan, aged about 7/8 years, on 29‑12‑64 at 6 p. m. and found the following:‑ (1) A lacerated wound, 1/3'' x 1/3" on the left cheek, caused by blunt weapon within 2 to 3 hours. (2) A lacerated wound 1/3'' x '' x 1/8" on the dorsal aspect of the right thumb in the middle. On a query by the police, the doctor opined that these injuries could be caused by pellets.

7. The same doctor also performed post‑mortem examina tion on the dead body of Zardad, aged 50/55 years (on 30‑12‑64, at 9‑15 a. m.), and found the following injuries:‑ (1) A fire‑arm entrance wound with charring, 2'' x on the back of chest left part middle zone. (2) A fire‑arm exit wound, 1'' x 1'' and '' x '' on the right nipple (chest) at a distance of 2' from each other. (3) A fire‑arm entrance wound, '' x " on the right elbow joint enterolateral aspect. (4) A fire‑arm exit wound, " x " on the posterolateral aspect of the right elbow. (5) A fire‑arm entrance wound, " x " on the medial aspect of the right upper arm, in its lower most part. (6) A fire‑arm exit wound, '' x '' on the anterior aspect of the right elbow. On internal examination the chest, walls, 4th, 5th, 6th and 7th ribs, right side, were fractured anteriorly. Both pleurae, both lungs and heart were found injured. One pound of blood was found present in the pleural cavity. Duration between the last meals and death was about 2 to 4 hours. Death was caused by injuries to heart and lungs, causing shock and haemorrhage, by fire‑arm. A bullet about '' x 1/3" x 1/6" was found in the arm of the shirt, which was handed over to police. In the opinion of Dr. Nisar Ahmad P. W., the death of the deceased was instantaneous. In his opinion the deceased was effectively shot at thrice. In the opinion of the same doctor injuries 3 and 5 on the deceased were shot beyond a distance of 3 yards.

8. At the commencement of the trial the two respondents pleaded not guilty to the charges. At the trial Bakhmir respon dent denied the charges and pleaded that he was not present in the village on the day of occurrence. He declined to produce defence evidence. Sahib Khan respondent also disclaimed the charges and pleaded that he was also not present in the village on the day of occurrence. He did not wish to produce defence evidence.

9. The prosecution produced Mst. Mehrzada (P. W. 6), Miraband (P. W. 7), Amir Ali (P. W. 8) and Makhan (P. W. 9) to testify the eye‑witness account of the occurrence. Muhammad Ibrahim Tehsildar .(P. W. 2) was also examined at the trial in support of the report Exh. P. A/2 and his recording of the statement Exh. P. C. of Mst. Mehrzada (P. W. 6). The deceased was a Patwari under Muhammad Ibrahim Khan Tehsildar. Miraband (P. W. 7) is Lambardar and Chaukidar of village tohjari Babar, where the occurrence took place. The father of P. W. Amir Ali was nephew of the father of P. W. Miraband. The wife of Amir Ali P. W. is the daughter of Mst. Sarwarjana, widow of Faujdar. The said Mst. Sarwarjana is the sister of Zardad deceased. Another daughter of Mst. Sarwarjana is married to Muinullah (P. W. 3). The third daughter of Mst. Sarwarjana is married to Saeed Khan, brother of Amir Ali. P. W. Surkamand, a collateral of P. W. Makhan, was charged for the murder of the son of one Lukhai of Khojari Bhawal. Surkamand ,vas arrested by the police through Bakhmir accused. P. W. Makhan is also a harnsaya of P. W. Muinullah.

10. The motive for the occurrence allegedly is that Khwaja Kiramatullah had agreed to sell his land to both Zardad and 'Bakhmir accused and under that agreement had taken earnest money from both. He, however, sold the same to Zardad deceased. Bakhmir, therefore, nourished a grudge against the deceased. P. W. Mst. Mehrzada at the trial resiled from her statement Exh. P. C. recorded by Muhammad Ibrahim Khan, Tehsildar.

11. The learned Assistant Advocate‑General criticized the grounds of acquittal recorded by the trial Sessions Judge and further argued that the trial Judge has not considered the evidence of Muhammad Ibrahim Tehsildar (P. W. 2). The learned A. A.‑G. also argued that the evidence of P. W. Muhammad Ibrahim was relevant under section 6, Illustration (a) of the Evidence Act so as to establish the charge of murder and attempted murder against the accused‑respondents.

12. It will be beneficial to reproduce the observations of the learned trial Judge, which resulted in the acquittal of the two accused‑respondents read as under:‑ "

7. In view of what has been observed above, it would be clear that out of the two eye‑witnesses Makhan and Mir Ali, the former is a chance comer. This person had stated that he was going to village Zaba Khel to see whether his lands needed irrigation or not. But in the next breath he has admitted that on that day he had no turn of irrigation. In fact such turn was to come on the third day. To another question he said that the land in village Zaba Khel which he had gone to see belonged to his nieces and sisters and he was a tenant of that land. Miraband (P. W. 7), however, had stated in cross‑examination that Makhan bad sold away his lands and houses in Zaba Khel Khojari to one Mir Mukhtiar Wazir about 3/4 years prior to the occurrence. When asked, the investigating officer stated that he `had not visited Zaba Khel village to collect material regarding Makhan's assertion as per above. Regarding the inherent worth of the statement of Makhan he had stated that after the shooting, P. W. Mar Ali called him for help. He accordingly went nearer and straightened the deceased by pulling the latter's legs from under him. Withal he raised an alarm. Miraband was first to arrive and was apprised by Makhan that the two accused had murdered the deceased. Miraband ran at once to where the Tehsildar was present. The Tehsildar came and Makhan again told him that the two accused had murdered the deceased and injured the two children. In cross‑examination Makhan alleged to have stated before the committing Magistrate that he was sitting in front of the shop of Sardali, that after the occurrence he raised alarm and that when Miraband came he informed him that the two accused had shot the deceased and that when the Tehsildar came, he also passed on the same information to the Tehsildar,, who then recorded the statement of the injured girl. When confronted with such statement before the committing Magis trate, nothing of the sort was found recorded therein, viz. his, presence in front of the shop of Sardali, raising of an alarm, telling Miraband and the Tehsildar or the recording of the statement of the injured by the Tehsildar. The same is the, case when confronted with his police statement Exh. P. B. In either statements Miraband was mentioned.

8. As regards Miraband himself he claims to have been attracted to the spot by ringing of two shots at a time when he, Sa,rdali and Mirzali were taking meals at about peshiwela. According to him Mirzali and Sardali had been asked by Zarwali Khan, the host to the Tehsildar, to cook meals in spite of the fact that both Mirzali and Sardali were shopkeepers and were not hajam by caste to serve as customary cooks of the rural community. When confronted with his statement before the committing Magistrate, Miraband admitted that he had not stated therein that he was taking his meals in the company of Mirzali and Sardali and that he was attracted to the spot by the shots or that he went from the spot to inform the Tehsildar. This witness seems to have been present with the Tebsildar Mohammad Ibrahim Khan (P. W. 2) because on hear ing shots the latter had stated that he had directed Miraband to go and fetch Zardad patwari, who, according to another lambar dar Muinullah by name had informed the Tehsildar that perhaps Zardad (deceased) had fired the shots to celebrate birth of' a son to a friend of the deceased.

9. Amir Ali Khan (P. W. 8) stated that when the Tehsildar came to the spot, he did not ask the former any question. When Lalai, uncle of the injured boy came and lifted the boy, he also did not ask him how his nephew got injured. According to Miraband, the father of Amir Ali P. W. was a nephew of Miraband's father. The wife of P. W. Amir Ali is a daughter of one Sarwar Jana, widow of Faujdar Khan. This Mst. Sarwar Jana is a sister of Zardad deceased. In other words Amir Ali is the husband of the deceased's niece. Another niece,, also daughter of Mst. Sarwar Jana, is married to Saeed Khan,, a brother of P. W. Amir Ali P. W. Akbar Khan is a brother‑in‑ law of the deceased while a step‑sister of P. W. Akbar Khan: was married to the deceased's father and from which unions Mohammad Ayaz and Guldad were born. Thus Amir Ali is close relation of the deceased.

10. Sharbat Khan (P. W. 10), who was produced as a witness to recovery memos., stated in cross‑examination that Makhan is a hamsaya of P. W. Muinullah, whose wife and that of Amir Ali are sisters per Miraband P. W. both the wives being the nieces of the deceased. According to Sharbat Khan, one Surkamand, a collateral of P: W. Makhan was charged for the murder of a son of one Lukhai and was arrested by A. S. I. Bahadar Khan through Bakhmir accused. Thus it looks that Makhan is not only interested in the deceased through his landlord Muinullah Khan but is also inimical to Bakhmir accused. Mir Ali P. W. when asked about his own relationship, he had flatly denied that his wife was Mst. Sahibzada, daughter of Mst. Sarwar Jana. He also denied that his brother Saeed Khan is a son‑in‑law of the same Mst. Sarwar Jana. He, however, admitted correct that his father was a nephew of P. W. Miraband's father.

11. Analysing the evidence of Miraband, Amir Ali and Makhan in the light referred to above, I feel that no reliance can be placed on their testimony. Makhan bad claimed to be a chance comer but even then his chance coming to the spot is not corroborated by any cogent reason because as already observed above, he had no personal interest in village Zaba Khel. On the top thereof his omission qua his statement before the committing Magistrate and police statement, Exh. P. D., clearly reveal an attempt to improve his statement during the trial in order to implicate both the accused. Coupled therewith, his attempt to grind his personal axe against Bakhmir accused makes him unworthy of credence. As for Amir Ali P. W. when he could deny apparent relationship as deposed to by his relation P. W. Miraband, he would definitely indulge in further falsehoods regarding how and why of the occurrence. As regards Miraband, I have already observed above, that his arrival on the spot is denied by the Tehsildar.

12. Thus we are left with the statement Exh. P. C. recorded by the Tehsildar. Mst. Mehrzada (P. W. 6 ) however denied to have given any statement to the Tehsildar. In cross‑examination she had stated that she had not seen Amir Ali or Makhan at the time of the occurrence. To another question she has stated that there were good many shops including tea stalls. where customers were present. Even a congregational prayer was on in a mosque near the spot of occurrence. Now, whether or not Mst. Mehrzada was conscious to have given a statement Exh. P. C. to the Tehsildar as alleged by the latter and denied by Mst. Mehrzada herself, let me refer to the statement of the doctor (P. W. 1). Dr. Nisar Ahmad Khan (P. W. 1) testifying to his acquaintanceship with the handwrit ing and signature of Dr. Rashid Mahmud, who has since left the country, stated that on 29‑12‑64 at 5‑30 p. m. Dr. Rashid Mahmud examined Mst. Mehrzada and had found her in a serious shock with a weak pulse and cold clammy skin. She was unable to give any statement. Looking at the injuries of Mst. Mehrzada, especially when omentum was out of the wound, I feel that the girl must have become unconscious because of shock. Now why the Tehsildar, I regret to observe, has gone so far to fabricate a statement Exh. P. C., I think the suggestion thrown by the defence rings true. The Tehsildar is a Chairman of the Municipal Committee, Bannu. His Vice Chairman is Abdul Qadir. A niece of P. W. Muinullah is married to Abdul Qadir. I need not repeat that the wife of Muinullah is a niece of the deceased, being a daughter of Mst. Sarwar Jana.

13. To sum up, I therefore hold that the prosecution has failed to prove the case against the accused beyond reasonable doubt."

13. From the perusal of the judgment it is explicitly clear that the learned trial Judge has not taken into consideration the evidence of Muhammad Ibrahim Tehsildar (P. W. 2). This witness was not examined by the police. At the trial this witness deposed: "On the spot Makhan, Mir Ali and a woman who was beating her chest and about whom I was told that she was the sister of the deceased, informed me that Bakhmir and Sahib Khan had shot at the deceased." A note of the Court at the end of the examination‑in‑chief of the witness reads: "When the witness was asked regarding the names of his informers on the spot he looked up a sort of a diary with him and then named his informers." In cross‑examination this witness stated : "I was examined by the C. M. I had not mentioned before the C. M. that I had sent Miraband to fetch Zardad Patwari. I see my statement recorded by the C. M. and find that I had not stated there that so and so (Mir Ali and Makhan) had informed me that Bakhmir and Sahib Khan had lindulged in the shooting. On the other hand I had stated before the C. M. `All the persons present on the spot were saying that Bakhmir and Sahib had murdered the deceased. I had not mentioned Makhan by name in my statement before the C. M. as a person present on the spot. I see Exh. P. A/2, I had not mentioned therein regarding my averments of today that Muinullah lambardar had told me that Zardad might have fired or that I sent Miraband to fetch the patwari or that I went out and inquired why and how the shooting took place and by whom (volunteered). It was the job of the police to do. I see Exh. P. A/2. I have not mentioned therein Mir Ali and Makhan at all. When I came out, I saw Mir Ali holding the head of the deceased in his lap.‑‑‑‑‑‑‑‑‑I have not been examined by the police at all." In his report Exh. P. A/2 this witness only reported that in his time an offence of murder and attempted murder had taken place, and that he recorded the statement of Mst. Mehrzada. The witness had not entered the names of any of the accused or any one of the witnesses in this report. The witness in his statement before the committing Magistrate has not mentioned the names of P. Ws. Mirza Ali and Makhan, nor had mentioned therein as to who and what was told to him about the occurrence. The witness had stated in cross‑examination: "All the persons present at the spot were saying that Bakhmir and Sahib accused had murdered the deceased." To this portion of the statement in cross‑examination the witness was properly confronted at the trial. Thus it is amply clear that the diary which the witness produced at the trial for revealing the names of his informers at the spot, is an after‑thought and appears to be a concoction. The argument of the learned A. A.‑G. is that the evidence of this witness, that all the persons present at the spot were saying that Bakhmir and Sahib had murdered the deceased, was relevant in view of Illustration (a) to section 6 of the Evidence Act. This Illustration reads:‑ "A is accused of the murder of B by beating him. Whatever was said or done by A of B or the by‑standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact." The argument is devoid of legal force. In this piece of evidence of P. W. 2, Muhammad Ibrahim Khan Tehsildar, the persons who were present at the spot and who gave him the information are not named. Even P. Ws. Amir Ali and Makhan are not named therein. So we fail to know from this statement as to who were the by‑standers present at the time of the occurrence, shortly, before the occurrence or shortly after it.

14. In Nasir Din alias Nasira v. Emperor (A I R 1945 Lah. 46) at page 47, it has been observed:‑ "In our opinion the word 'by‑standers' means the persons who are present at the time of the beating and not the persons who gather on the spot after the beating. Accordingly only the statements made by the persons who witnessed Fakiria's murder could be proved, but Mst. Aishan Bibi said that the remark that she heard was made by people whom she found on the scene on her arrival. She did not say that these persons included Shadi Lal and the other witnesses. The remark made by persons other than the eye‑witnesses could only be hearsay, because they must have picked up the news from others. It is very unfortunate that an offence of this kind is to go unpunished but the Court can only take into consideration the legal evidence and as such evidence is not sufficient to prove the appellant's guilt, we have no option but to allow the appeals." In Nisar Hussain v. The State (P L D 1964 Pesh. 59), it has been observed at page 65, para. 15 :‑ "Khan Abdul Latif Khan also raised a point that the statement of Ghulam Habib in regard to what Fateh Gul and Said lalil P. Ws. had told him was inadmissible, in that the term "by‑standers" within the meaning of Illustration (a) to section 6 (Evidence Act, 1872) means the persons who are present at the time of the occurrence and not the persons who gather on the spot after it. The argument in my view is substantial, in that the statement of Ghulam Habib in regard to what the aforesaid witnesses had told him is inadmissible in evidence unless and until we hold that they had witnessed the occurrence." Thus the evidence of P. W. Muhammad Ibrahim in cross -examination before the committing Court that all the persons present on the spot were saying that Bakhmir and Sahib had g murdered the deceased, is not legal evidence to establish the charge of murder and attempted murder against the two respondents.

15. The learned counsel for the respondents firstly contended that the statement Exh. P. C. of Mst. Mehrzada (P. W. 6) recorded by Muhammad Ibrahim Khan Tehsildar (P. W. 2) cannot be called the F.

1. R. or forms part of it. This argument has no force. It has been shown that Muhammad Ibrahim P. W. went to the spot from his place of Jalsa‑i‑Am and recorded the statement Exh. P. C. of Mst. Mehrzada (P. W. 6). Mst. Mehrzada survived the injuries. The Tebsildar sent his own report Exh. P. A./2 and the statement Exh. P. C. in original to Police Post Kaki through P. W. Miraband. At the Police Post A. S. I. Sattar Jan copied the report Exh. P. A./2 and the statement Exh. P. C. in Daily Diary at Serial No. 21, vide Exh. P. A/

1. All statements, whether one or more relating to the commission of a cognizable offence made to the police before C the commencement of investigation can very well be designated, as first information reports.

16. In Tika Ram and others v. The State (A I R 1957 All. 755), it has been held "The words `in the course of an investigation' in section 162, Cr. P. C., import that the statement must be made as a. step in pending investigation to be used in that investigation and do not refer merely to that period of time which elapses between the beginning and the end of the investigation. Thus where there is a second report made to the police about the commission of an offence which is found to have been made quite independently of, and in no relation to, any pending investigation, is not designed to promote a pending investigation, and has no reference at all to the investigation which has in fact already begun, it is a document admissible for the purpose of corroborating the evidence of its maker, under section 157 of the Evidence Act, or to contradict him under sections 155 and 145, though it is not a substantive evidence of the facts stated therein." In Goga and another v. The State (AIR 1959 J & K 105), it has been ruled at page 106 :‑ "Section 162 will be attracted only if the list of stolen articles was given by the complainant to the police officer after the commencement of the investigation of the case by him. It is true that a statement made by any person to a police officer in the course of an investigation cannot be used for any purpose except that specified in section

162. But this limitation does not apply to a statement which is not made in the course of investigation. It is not correct to say that the moment a police officer leaves the police station for the scene of occur rence the investigation of the case has started. Where in the F. I. R. the complainant specifically stated that he will furnish a list of the stolen articles when the police officer comes to his house, and he did furnish a list accordingly before the com mencement of the investigation, that list must be taken to be part and parcel of the First Information Report. The list properly fell under section 154 and was not hit by section 162 of the Code of Criminal Procedure." Thus the statement Exh. P. C. forms part of the F. I. R. Exh. P. A/l, but it could not be used as substantive evidence.

17. The learned counsel for the respondents next argued that in the present case Dr. Rashid Mahmud, who had prepared the injury sheet Exh. P. E. of Mst. Mehrzada, injury sheet Exh. P. F, of Niaz Khan (abandoned P. W.) and post‑mortem report Exh. P. I. of Zardad deceased, was not available for evidence, and as such the injury sheets and the post‑mortem report stand unproved and cannot be relied upon as substantive pieces of evidence. The argument, though attractive, is not acceptable in law. Section 32 of the Evidence Act with sub section (2) reads as under :‑ "

32. Statement, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance, cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases :‑ (2) When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty ; written or signed by him. (3) . (4) . (5) . (6) . (7) . (8) . Section 35 of the Evidence Act lays down "An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact." Thus the injury sheets and the post‑mortem report prepared by Dr. Rashid Mahmud ; who has since resigned from service, has proceeded to Arabia and his address is not known ; in the ordinary E course of business and in the discharge of his professional duty are relevant facts and are admissible as substantive evidence.

18. In Mohan Singh v. Emperor (A I R 1925 All. 413) citation (b) reads as under :‑ "(b) Evidence Act, section 32(2)‑Section applies to post mortem report. Where the Civil Surgeon who conducted the post‑mortem examination had since died Held, that the post‑mortem report would be admissible under section 32(2) of the Evidence Act as being a statement made by a dead person in the ordinary course of business and in the discharge of his professional duty." Monir in "Principles and Digest of the Law of Evidence" 4th Edition at page 219, under head "Statements admitted under section 32 are substantive evidence", comments "If the maker of a statement is examined as a witness, ordinarily his previous statement is admissible merely to corroborate or contradict his testimony in Court, but it is not substantive evidence. If, however, he cannot be called as a witness by reason of any of the circumstances mentioned in this section, his previous statement, if it falls within any of the clauses to this section, becomes admissible as substantive evidence." Reliance has been placed for this commentary on Charitter Rai v.. Kajlash Behari (44 I C 422) and Jonab Biswas v. Siva Kumari Debi (1927 Cal. 855). Monir again at page 229 under the caption "If the statement. is in writing, it must be duly proved", comments :‑ "Where the statement is in writing it must be proved to be in the handwriting of the person alleged to have made it. This may be done by adopting any recognised mode of proving handwriting, e.g. by calling a witness who saw the deceased write, or who is acquainted with his handwriting (as required under section 47 of the Evidence Act)."

19. Thus in the present case Dr. Nisar Ahmad (P. W. 1) has proved the injury sheets and the post‑mortem report to be in the handwriting of Dr. Rashid Mahmud, whose whereabouts are not known. The injury statements and the post‑mortem report thus proved are substantive evidence in proof of the nature of the injuries on the persons of P. Ws. Mst. Mehrzada, Niaz Khan and Zardad deceased, and that these injuries caused the death of Zardad deceased.

20. On perusal of the evidence on record and the grounds of acquittal formulated by the learned trial Judge, we are of the view that in reversing the finding of acquittal, we will be taking a clear risk of departure from the rule of the benefit of doubt.

21. In Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan (P L D 1964 S C 422) the dictum of law laid down is :‑ "But where the Judge has read the evidence fairly, and has formulated grounds of doubt which are not perverse or wholly illogical or unreasonable, there is a clear risk of departure from the rule of the benefit of the doubt in reversing his findings." Again in Feroze Khan v. Captain Ghulam Nabi Khan and another (P L D 1966 S C 424), it has been laid down :‑ "If the view taken by the Courts below is reasonably possible on a consideration of all the facts and circumstances of the case, then the entertainment of a feeling, that an alternative view of the evidence might have been taken, would not justify the superior Court in setting aside an order of acquittal. The governing consideration must always be whether, in relation to the proved facts and circumstances, justice has been done, in accordance with law."

22. In conclusion, we are of the view that in relation to the proved facts and circumstances, justice has been done in acquitt ing the two respondents. While maintaining the order of p acquittal recorded by the learned trial Judge, we dismiss the State appeal.