ASLAM RIAZ HUSSAIN, J.-This appeal is directed against the judgment of a learned Single Judge of the Lahore High Court dated 13-3-1975 whereby the appeal of Talib Hussain in a case under section 302, P. P. C. Was dismissed.
1.Talib Hussain was tried, along with his father Lai and three others namely pahlwan and Allah Ditta and Nur for the murder of Riaz. Talib and Lai were charged with the actual murder while the remaining three were charged under section 302/109, P. P. C. For abating the murder.
3. The learned trial Court by its judgment dated 17-1-1974, acquitted Lal Pahlwan and Allah Ditta but convicted Talib Hussain under section 302 and sentenced him to death and a fine of Rs. 2,000. In default of payment of fine, he was ordered to undergo another one year R.
1. The fine, if realized, was ordered to be paid to the heirs of the deceased as compensation. Talib filed an appeal in the High Court which was dismissed vide the im--pugned judgment.
4. It may be mentioned at the outset that Riaz, deceased, is the first cousin of Talib Hussain, appellant, inasmuch as their mothers are real sisters inter se.
5. The motive for the offence as stated in the F. I. R. Was that about three years prior to the incident Riaz, deceased, was residing in the house of .His maternal uncle Lai to Chak No. 169, Mochiwala, District Jhang. During the stay there, he formed a liaison with his daughter Mst. Mumtaz and abducted her. Naturally this was deeply resented by Lai and his son Talib, appellant. The girl was got restored to her family through the interven--tion of Sher and Allah Yar, P. Ws. And the matter was patched up. But Talib and Lai harboured the grievance. Thereafter, Riaz moved to Chak No. 171.
6. The facts of the case briefly are that on 14-1-1972 at deeger wela Pahlwan and Allah Ditta and Nur (acquitted accused) came to the well of Sher, P. W. In Chak No. 171. At that time Riaz, deceased, Allah Yar, P. W. 9 and one Lai son of Jhana were also present at the well. Pahlwan etc. Told Riaz that his uncle Lai had called him as he wanted to talk to him about the marriage of Mo. Mumtaz. Riaz thereupon accompanied them to Chak No. 169.
7. On the same day; at about 10 p. m., Ghulam, P. W. 10 and Machia, P. W. 11 came to the house of Sher P. W. And informed him that at about 8 p. m. When they were passing through the Bazar of Chak No. 169 on their way back from Mochiwala, they beard a noise coming from the house of Lal.
They rushed in and saw Talib Hussain carrying a gun and Lal (acquitted accused) armed with a dandaattacking Riaz. Talib fired two shots at Riaz who fell down. Thereafter, Lal gave him danda blows as he lay fallen on the ground. The P. Ws. Had seen the incident in the light of their electric torch.
On learning this Sher went to Police Station-Mochiwala and lodged the F. I. R. At 4 a. m., which was recorded by Jalaluddin. A. S. L, P. W.
12. After recording the F. I. R., the- A. S. I. Went to the house of the appellant and found the dead body lying in the verandah. He sent it for post-mortem examination.
He also recovered some blood-stained earth from the spot and sealed it into a parcel. He also took into possession two empty .12 bore cartridges lying nearby. The recoveries were witnessed by Slier, Ghulam and Machia, P. Ws.
8. The empty cartridges were sent to the ballistic expert and were received by him on 21-1-1972.
Talib Hussain and Lal were arrested by Nazar Hussain Shah, S. H. O., P. W. 13, on 19-1-1972. While under custody, Talib Hussain led to the recovery of his licensed gun P-4 and the license P-5 from a room in the house in which bhoosa was stored. Lal, accused, led to the recovery of Danda P-3 which was not found stained with blood. The gun was sealed and sent to the ballistic expert. It was received by him on 2-9-1972. The test carried out by the ballistic expert revealed that the two empty cartridges matched the aforementioned licensed gun of Talib. The post-mortem examination revealed two fire-arm injuries on the body of the deceased and one lacerated and one contusion, injury 7--- x 6" on his left buttock. The two fire-arm injuries had been caused by two separate shots. As to the last mentioned injury, the doctor deposed in his cross-examination that the same could be caused by a fall from a horse back.
9. At the trial the prosecution relied on the ocular testimony of Ghulam, P. W. 10 and Machia, P. W. 11, the evidence of motive, the evidence of recovery and the medical evidence.
10. Both the eye-witnesses i. e. Ghulain and Machia, however, resiled and did not support the prosecution version at the trial. They had, therefore, td be declared hostile and were cross- examined by the Public Prosecutor and their statements before the Committing Magistrate were transferred to the Sessions' file under section 288, Cr. P. C. Allah Yar, P. W. 9, who was present with Sher, P. W. When Pahlwan etc. Had come to the well of Sher in Chak No. 171, and had taken away the deceased with them, also resiled. He too was declared hostile and his statement before the Committing Magistrate was also transferred to Sessions' file under section 288, Cr. P. C. Sher, the first informant, died before the trial. His statement before the C, M. Was, therefore, transferred to Sessions file under section 33 of the Evidence Act. Allah Yar, P. W. 8 a witness to the motive made a number of concessions in favour of the appellant, but he was riot declared hostile.
11. The learned trial Court relied on the statements of the eye with in before the Committing Magistrate as well as on the medical evidence and the evidence of motive and recoveries and convicted Talib and sentenced him as aforesaid. He, however, acquitted Pablwan, Allah Ditta and Nur accused, who had not been assigned any part in the murder. Lal, co-accused was also given benefit of doubt and acquitted, inter alia, because the danda' recovered at his instance, was not found to be stained with blood. Talib Hussain tiled an appeal before the High Court but it was dismissed vide the impugned judgment. He then filed a petition before this Court and leave was granted to consider whether his conviction could he sustained on the evidence on the record.
12. We have heard the learned counsel for the appellant and the learned counsel for the State and have also gone through the entire record with their help.
The learned counsel for the appellant submitted, inter alia, that both the eye-witnesses, namely Ghulam, P. W. 10 and Machia, P. W. 11, had resiled and did not support the prosecution case at the trial. No doubt their statements before the Committing Magistrate were transferred to the Sessions' file but he argued that there is no guarantee that these statements contained truthful account of the incident. As such neither of them was worthy of reliance. He submitted further that the recovery of the blood--stained earth, the two empty cartridges as well as the recovery of Gun P-4 have been sought to be proved mainly through Ghulam and Machia. But they are also the eye- witnesses in the case and, therefore, their testimony with respect to the recovery of the aforementioned articles, cannot be used to corroborate their own ocular testimony. The learned counsel submitted further that although Sher, P. W. 15 and Allah Yar P. W. 9 have mentioned that Pahlwan, Allah Ditta and Nur co-accused had come to the well of Sher in Chak No. 171 and had taken away Riaz (deceased) with them but they have evidently been disbelieved because all the three aforementioned co---accused have been acquitted of the charges under sections 302/ 109, P. P. C. As to the medical evidence, the counsel submitted that the same cannot be used to fix the identity of the culprit.
13. We have considered the aforementioned contentions. It is no settled law that where witnesses resiled at the trial and their earlier statement made before the Committing Magistrate are transferred to the Sessions' fill under section 285, Cr. P. C. These statements can be relied upon in preference to those made by the witnesses at the trial and conviction can be based on the same although corroboration of the same should be sought as a measure of caution. Refer : Muhammad Ahmad Mahanda v. State PLD 1970S C 72), Rajoo v. State (1971 SCMR 216) and Falak Sher and others v. State( PLD 175 SC 179). The learned Courts below were therefore, justified an law in placing reliance on the statements of Ghulam, Machia and Allah Yar made before the Committing Magistrate.
14. As for the recoveries, it is true that for reasons best known to the Investigating Officer, he included Ghulam and Machia, eye-witnesses, among the recovery witnesses, They supported the recoveries in their statements before the C. M. Which have been transferred to the Sessions' file and were reined upon. Bui it is correct that these statements as far as they relate to recoveries cannot be used to corroborate their own statements as to the inner in which the occurrence took place.
But we are of the view that in present case we can safely rely upon the testimony of Jalaluddin, A. S. I.W. 12 with regard to the recovery of the blood-stained earth and the empty cartidges from the spot, Is. Also the statements of Nazar Hussain Shah, S.H.O P. W. 13 with regard to the recovery of gun P-4 and licensee P-5 at farce of Talib Hussain, appellant. As already mentioned, according to the report of the Fire-arm Expert are the two empties recovered from the spot matched with the gun, proved conclusively that the same had been used in the commission of the said murder. This clearly connects Talib Hussain with the commission of offence.
The post-mortem report shows that two fire injuries had been caused to the deceased. This fact also goes to corroborate the ocular testimony with regard to the part attributed to Talib Hussain.
As to the third injury which had been described as a contusion and is located on the left buttock of the deceased we are inclined to agree with the learned trial Judge that it could have been caused with the butt of a gun. The motive is proved by Sher P. W. 15 as well as Allah Yar son of Sultan, P. W. 8 also go to support the prosecution version
15. It may be mentioned that the learned counsel for the appellant repeatedly urged that the parties who are closely related to each other had evidently patched up the matter and reached a compromise and that it is, for that reason, that the main witnesses specially Ghulam and Machia (eye--witnesses) who are also closely related to both the parties, refused to support the prosecution case at the trial. He submitted that no doubt their earlier statements before the Committing Magistrate, wherein they have supported the prosecution `case could be used to convict them yet in view of the fact that the law relating to murder was likely to under go a change in the near future to incorporate the Islamic concept of Qisas and Deyat whereby in case of a compromise between the parties, the accused would be entitled to acquittal, this Court should consider the case of Talib in the light of the aforementioned possibility.
16. We notice that despite their close relationship with Talib Hussain, appellant, Ghulam and Machia, P. Ws. Had named him as the person who had fired at and killed Riaz, in their statements before the police as well as before the Committing Magistrate. It is, therefore, evident that the learned counsel for the appellant is correct when he saved that the eye-witnesses resiled from their earlier statements and refused to support the prosecution case at the trial because the parties had reached a compromise. And they had good reason to compromise because mothers of Riaz (deceased) and Talib (appellant) are real sisters inter se. Having lost one boy the family did not wish to loss the other as well. But we cannot agree with the conten--tion that we must look at the evidence in the light of a possible change in law because we have to decide the case according to the law as it stands at present. We may mention here that the two Courts below appear to have been fully aware of the reason as to why the aforementioned witnesses had changed their statement at the trial and made liberal concessions in favour of the appellant. Had it not been for the compromise reached between the parties, they would certainly have stuck to their earlier statements. When the matter was still fresh they were willing to tell the truth and name the real culprit notwithstanding their close relationship with him. Actually it is this fact which appears to have weighed with the learned Court to rely on the earlier statements of the eye-witnesses in preference to the ones they made at the trial.
17. Before parting with this case, we may mention that even if the eye-witnesses were to be excluded from consideration, there is sufficient circumstantial evidence on the record to sustain the conviction of Talib Hussain. There is the evidence of Shera, P. W. 15 and Allah Yar, P. W. 9, that Riaz was taken away by them to Chak No. 169 on being informed that the appellant's father Lai wished to talk to him (Riaz) about the marriageMost. Mumtaz. The same evening Riaz was found dead in appellant's house. There is the evidence of Shera, P. W. 15 and Jalaluddin, P. W. 12 that on reaching there, they found the dead body of Riaz lying in the verandah o the appellant's house. The ballistic expert found, after conducting the tests, that the two empty cartridges found at the spot (the recovery whereof ha been proved by Shera and Jalaiuddin P. Ws.) matched with the licensed gun of Talib Hussain. The presence of the dead body of Riaz in his hoes with fire-arm injuries coupled with the fact that the empties found nearby were found to have been fired from Talib's licensed gun, which was found hidden ire the Bhoosa store of his house are by themselves sufficient to raise an inference against him and to require him to explain an onus which he has not discharged.
In the light of above discussions we feel that the learned High Court has rightly dismissed the appeal of Talib Hussain. Consequently, the present appeal is also dismissed.