P L D 1959 (W (PLP)

YAQUB ALI, J.‑This is an appeal from the order of Mr. M. A. Kazi, Sessions Judge, Khairpur State, dated the 23rd of February 1955, acquitting Abdul Majid (respondent) of the charge of murdering his co‑villager, Haroon.

2. Briefly, the case for the prosecution was that the respon dent suspected Haroon of illict intimacy with the wife of his brother, Abdul Hamid. A few months before the occurrence he complained about it to Ibrahim, the father of Haroon, and some of his relatives who are prosecution witnesses in the case. Haroon took an oath on Quran and denied the allegation, but it appears that the respondent did not believe the word of Haroon and continued to nurse a grudge against him on that account. On the 5th of March 1954, about a pehr after sunrise, Haroon set out from his house to go to Khan Wahan for making some purchases. On the way he had to take with him Hasan Khati (P. W. 2) who too had to purchase some earthen utensils. As the breakfast of Hasan Khati was not yet ready, he told Haroon to wait for him for some time and in the meantime they sat under a Sharin tree outside the house of Hasan Khati facing towards the house of the respondent which was at a distance of about sixty paces and in which lived the wife of his brother, Abdul Hamid. While Haroon and Hasan Khati were sitting there; the respondent suddenly appeared on the scene armed with a hatchet and started belabouring the deceased with it. Hasan Khati tried to intervene but the respondent pushed him away and continued to inflict blow after blow to the deceased with the hatchet until he had hacked him to death and went away in the direction of his house carrying the hatchet with him. The alarm raised by Hasan Khati attracted the attention of Ibrahim (P. W. 1), the father of the deceased, Imam Din (P. W. 2), brother‑in‑law of Ibrahim P. W., and Khizer (P. W. 4), the maternal uncle of Haroon, whose houses were near the scene of occurrence. On their arrival at the spot they found the deceased lying dead and were informed by Hasan Khati that the respondent had killed the deceased in the manner narrated above. Ibrahim thereupon went to the Police Post Sagyun, at a distance of five miles from the place of occurrence and lodged the first information report at 4 p.m.

3. Preliminary investigation in the case was undertaken by Abdul Hadi (P. W. 8) Head Constable who arrived at the scene of crime at 6 p.m. He found Beg Muhammad, Wahur and 'Hasan Khati P. Ws. present near the dead body of Haroon and after preparing the usual inquest report and the statement of injuries of the deceased he sent for the medical officer to perform autopsy on the dead body. The same evening Beg Muhammad (P. W. 6) produced the respondent before him and his turban and shirt which appeared to be stained with blood were taken into custody. In the course of interrogation, the respondent offered to produce the weapon of offence and in presence of Abdul Hadi, Beg Muhammad and Wahur P. Ws. produced the blood stained hatchet Ex. C from under a cot in one of the rooms of his house. According to the report of the Chemical Examiner Ex. 8‑A, the blood found on the turban of the respondent and the hatchet was of human origin while no blood was detected on the shirt.

4. During the commitment proceedings, the eye‑witnesses' account of the occurrence was given by Hasan Khati, but at the trial he tried to dilute the effect of his testimony by introducing a new feature that the face of the culprit was muffled and he suspected him to be the respondent because after causing the death of Haroon the culprit had gone in the direction of his house. The statement of Hasan Khati recorded during the commitment proceedings was transferred to the file of Sessions Court under section 288 of the Code of Criminal Procedure. In the course of cross‑examination by the Public Prosecutor, Hasan Khati stated that his earlier statement was correct and true and explained that in the statement which he made in the Sessions Court he had nowhere 'said that he did not identify the culprit and the only addition he had made was that he suspected him to be the respondent as he had run away towards the latter's house and he knew that the respondent had a complaint against the conduct of Haroon. The reference is presumably to the complaint that the deceased had an illicit intimacy with the sister‑in‑law of the respondent. In the next sentence he again took up the position that he had in fact not identified the assailant but suspected him to be the respondent and given his name to Ibrahim and other P. Ws. The attention of the witness was then drawn to the statement he made under section 164 of the Code of Criminal Procedure in which he had stated that Abdul Majid son of Ali Bakhsh Mato came on the scene of occurrence and gave blows with a hatchet to Haroon who died instantaneously and he admitted it to be correct. In the concluding part of the cross‑examination by the Public Prosecutor the witness expressed uncertainty if the respondent was the assailant of the deceased. In cross‑examination by counsel for the respondent, Hasan Khati professed that the statement made by him under section 164 of the Code of Criminal Procedure was voluntary and in re‑examination he admitted that he had not mentioned to the police or to anyone else that the assailant of Haroon deceased had his face muffled but ascribed this omission to no question having been put to him earlier in this respect.

5. Ibrahim, Imam Din and Khizer P. Ws. deposed that at the time of the occurrence they were present in their respective houses and on hearing the alarm raised by Hasan Khati P. W. they went to the spot and found Haroon lying dead. Hasan Khati who was standing near by then narrated to them the manner in which the respondent had murdered Haroon and Ibrahim went to Police Post Sagyun and lodged the first information report. The witnesses further deposed to the complaint which the respon dent had made to them regarding his suspicion that Haroon was carrying on with his sister‑in‑law. Wahur (P. W. 5) and Beg Muhammad (P. W. 6) inter alia, deposed to the recovery of the blood‑stained turban and shirt from the person of the respondent and the blood stained hatchet from his house. Muhammad Bakhsh (P. W. 7) Tapedar had prepared the site plan Ex. 7‑A which showed that the dead body of the deceased was found at a distance of eight paces from the house of Hasan Khati, the house of the respondent was at a distance of sixty paces from that point towards cast and the houses of Ibrahim, Imam Din and Khizer P. Ws. were at a dis tance of 100, 95 and 50 paces respectively from the place of murder. Abdul Hadi (P. W. 8) had conducted the preliminary investigation in the case and in cross‑examination he denied that Hisamuddin and Allahdad, whose particulars are not to be traced on the record, came to lodge a first information report but as they could not give the necessary particulars, the witness went to the scene of occurrence and recorded the first information report of Ibrahim there. The last witness in the case was Mr. Amin Khan, Medical Officer, Hinjorja, who had performed the postmortem on the dead body of Harqon and found as many as thirteen incised wounds on the dead body, all of them caused by a heavy sharp‑edged weapon like the hatchet Exh. C. Out of these injuries Nos. 1, 4 and 11 were more serious and could have individually caused death in the ordinary course of nature. In cross- examination some questions were asked about the position of the male organ of the deceased, such as whether there was any injury on it or semen in its mouth, presumably with a view to set up a defence of grave and sudden provocation.

6. The respondent pleaded not guilty and ascribed his implication in the case to enmity with the prosecution witnesses. The ownership of the shirt, turban and the loin‑cloth taken into custody from his person and a pair of slippers found on the spot as well as the recovery of the blood stained hatchet were denied. It was also denied that the respondent had suspected the deceased of illicit intimacy with his sister‑in‑law and that he had complained about this matter to Ibrahim, Imam Din and Khizer P. Ws. No witnesses were examined in defence.

7. The trial concluded on the 28th of December 1954, but the Judgment was announced on the 23rd of February 1955 whereby the respondent has been acquitted on the following grounds :‑ (1) A witness who has changed his statement in the Sessions Court, i.e., Hasam Khati, should not be relied upon. In support of this reliance has been placed on Ayyamperumal v. Emperor A I R 1925 Mad. 879, Rare Karan v. Emperor A I R 1925 Lah. 483, Emperor v. Ram Lal A I R 1934 Oudh 507, Sarju Singh v. Emperor 26 Cr. L J .1236 and more particularly on Babu Lal v. Emperor A I R 1947 Pat. 144 in which there was only one eye‑witness who had resiled from his earlier statement during the Sessions Court. (2) It was possible that Hasan Khati had not seen the incident but as the dead body of Haroon was detected outside his house, Hasan Khati had named the respondent out of fear. (3) In the alternative, assuming that Hasan Khati had seen the occurrence, it could not be said with certainty that the respondent was the culprit as according to Hasan Khati his face was muffled. (4) It appeared strange and absurd that the respondent thought of murdering Haroon in broad daylight near a place where there were number of houses and Hasan Khati was present near‑by. (5) The respondent must have been mad to have struck the deceased with the hatchet in the presence of Hasan Khati who was his enemy. (6) Hasan Khati stated that he had grappled with the culprit but it was strange that no marks of violence or stains of blood were found on his person. (7) It was strange that none other than Ibrahim, Imam Din and Khizer who were related to the deceased had come to the spot on hearing the alarm raised by Hasan Khati. (8) Hasan Khati had stated that the police arrived at the spot at about the time of Juma prayer while the first informa tion report was recorded‑at 4 p.m. The limb so gained appeared, to have been utilised in cooking up a false case against the respondent. (9) The testimony of Wahur and Beg Muhammad P. Ws. could not be relied upon implicitly as they appeared to be enemies of the respondent.

8. As to the value to be attached to a statement transferred under section 288 of the Code of Criminal Procedure, reference may be made to Imtiaz Rabbani v. State, (P L D 1956 Lah. 657). All the material prosecution witnesses had retracted from their earlier statements in that case but the accused was convicted under section 302 of the Pakistan Penal Code and sentenced to death on the basis of the statements transferred under section 288 of the Code of Criminal Procedure. On appeal by the convict and a reference under section 374 of the Code of Criminal Procedure, a Division Bench of this Court, to which one of us was a party, upheld the conviction and the sentence of death was confirmed. A further appeal was taken. to the Supreme Court on the same ground as has found favour with the learned trial Judge in this case and dismissed. Hasan Khati is an independent witness and the respondent had nothing material to urge against him. He and Faqir Muhammad brother of the respondent, no doubt, had a dispute over a passage three to four years prior no the occurrence in this case, but this had no effect on the relations between the witness and the respondent as they continued to be on dining terms. It is further obvious that if Hasan Khati had a motive to falsely implicate anyone in the case, he would have named Faqir Muhammad and not the respondent, or in any case both of them. We, therefore, conclude that there was no enmity between the respondent and Hasan Khati which has been relied upon by the learned trial Judge to discredit his testimony. During the trim he appears to have been won over to introduce the element of the culprit's face being muffled so as to create a doubt about the identity of the respondent. In his statement before the police recorded on the spot on the day of occurrence, in his statement recorded by the Magistrate under section 164 of the Code of Criminal Procedure and in the statement in the commitment proceedings, there is no mention, or even a remote suggestion that the face of the culprit was muffled and the witness had guessed him to be the respondent because he ran in the direction of his house. The statements under section 164 and in the commitment proceedings are before us and this omission in the statement recorded under section 161 of the Code of Criminal Procedure may reasonably be inferred as the defence did not contradict Hasan Khati on this point with reference to that statement. To the contrary, in re‑examination he admitted that in none of his earlier statements he had made any mention of the face of the accused being muffled. We, therefore, take the state ment of Hasan Khati transferred under section 288 of the A Code of Criminal Procedure as truthful and in coming to this conclusion we are amply fortified by the circumstances in which the deceased was murdered. The speculation on the part of the learned trial Judge that Hasan Khati had not seen the incident but had named the respondent on account of fear is equally devoid of force. As stated above, there was no enmity between the deceased and the witness on account of which anyone could have suspected him for the murder of the deceased. Murder had taken place during day‑light in front of the house of Hasan Khati and keeping in view the number of injuries found on the person of the deceased it may be reasonably presumed that on receiving these injuries he must have raised an alarm. Even otherwise when a person is being hacked to death, the inmates of house situated at a distance of a few paces tom the place of occurrence should not have remained unaware of it. In view of this presence of Hasan Khati on the scene of crime was very likely and assuming that the face of the culprit was muffled and he had run away in the direction of the house of the respondent, there is no reason why Hasan Khati should have named the respondent instead of making a truthful statement. He was certainly not obliged to name the culprit, if in fact he had been unable to identify him. In this respect it goes to the credit of B Ibrahim, Imam Din and Khizer P. Ws. that although they arrived at the scene soon after the occurrence, they did not claim to have seen the respondent either giving blows to the deceased or running away from the scene of crime. They could have easily assumed this role keeping in view the nearness of their residential houses but their evidence relating to the occurrence is confined to the account given to them by Hasan Khati. Nothing need be said about grounds Nos. 3 and 8 because they are based on the assumption that the statement which Hasan Khati made during the trial was correct, and' in our view it is an improvement calculated to help .the respondent. As to grounds Nos. 4 and 5, we find no strangeness and absurdity in the prosecution case that the respondent murdered Haroon in broad day‑light, in the presence of Hasan Khati who was likely to depose against him. We presume that this is not the first case within the knowledge and experience of the learned trial Judge in which murder or other offences were proved to have been committed in presence of more than one eye‑witness. If this criticism of the prosecution by the learned trial Judge was accepted as correct then all those cases in which the prosecution relies upon the account given by eye‑witnesses must invariably fail, but such is not the state of law in this country. The sixth ground that as no marks of violance or blood were found on the person of Hasan Khati he was not likely to have witnessed the occurrence is also based on a surmise. No question was asked from the witness as to the manner in which he tried to intervene and was pushed away by the respon dent, and unless it was shown that the latter used any violence of the kind which would have left any marks on the person of Hasan Khati or that he came into contact with the blood stained hatchet, there was no foundation for the speculation. (Ground No. 7). It is true that Ibrahim, Imam Din and Khizer P. Ws. are closely related to the deceased and they .were the first to arrive at the scene of occurrence on hearing the alaram raised by Hasan Khati but the strangeness expressed by the learned trial Judge is amply explained by the fact that their houses were near the scene of occurrence. The only question which arose in this context was as to why those persons whose houses were also near by did not respond to the alarm raised by Hasan Khati. The proper person to throw light on this omission was the investigating officer, but no question was asked from him on this subject. Further we find no substance in this criticism because it is immaterial as to who came first after the occurrence had taken place and the culprit had escaped. Moreover if the deceased was murdered at about midday and none other than Ibrahim, Imam Din and Khizer P. Ws. arrived at the spot, it is likely that either the inmates of the other near‑by houses were absent or that they were not willing to associate themselves with the prosecution of this case. In these circumstances their omission from the calendar of witnesses does not adversely reflect on the prosecution case.

9. The last ground that Wahur and Beg Muhammad P. Ws. were inimical to the respondent and their testimony could not be relied upon is also without any substance. Both Wahur and Beg Muhammad admitted to have appeared as prosecution witnesses in a theft case against one Muhammad, a relative of the respon dent. The degree of relationship has not been brought out on the record, nor the time when the witnesses were examined, nor the nature of their testimony. In view of this the enmity suggested by the defence on this account has not much weight. In this respect it is significant that in cross‑examination Wahur was asked a question suggesting that the blood‑stained clothes were taken into custody from the person of the respondent at Sagyun and not at the place of occurrence. This is consistent with the suggestion made to the doctor who performed the autopsy on the dead body regarding the position of the deceased's male organ at the time of his demise, the theory pursued by the defence at that stage being of grave and sudden provocation, such as that the deceased was caught flagrante delicto with the sister‑in‑law of the respondent who murdered him and then voluntarily went to the Police Post Sagyun. The recovery of the blood‑stained hatchet, therefore, appears to be genuine and coupled with the statement of Hasan Khati, transferred under section 288 of the Code of Criminal Procedure, the information he gave to Ibrahim, Imam Din and Khizer P. Ws. about the identity of the culprit and the evidence motive, of to our mind, prove the prosecution case against the respondent beyond any reasonable doubt.

10. On the above view of the prosecution case and the plea of defence we allow this appeal and find Abdul Majid respondent guilty under section 302 of the Pakistan Penal Code for causing the murder of Haroon deceased. As to sentence, the brutal manner in which he hacked the deceased to death warranted extreme penalty of death but as this appeal has remained pending for more than four years, we award him the lesser sentence of transportation for life. A.H. State appeal accepted.