MUHAMMAD MUNIR FARUQUI, J.-Hussain Bakhsh (appellant) son of Jundwada, caste Baloch resident of Choti Jamal K ban in D. G. Khan District, while undergoing a sentence of transportation for life was tried for the murder of a co-convict Farzand Ali (deceased) by the Sessions Judge, Bahawalpur, who found him guilty and convicting him under section 302, P. P. C. Sentenced him to death vide his order dated the 8th of May 1969. He has filed an appeal to question the correctness of this order and a usual reference under section 374, Cr. P. C. Is also before us. We propose to dispose of the to matters by this judgment.
2. The prosecution case in brief is that Hussain Bakhsh (appellant) and Farzand Ali (deceased) were living in a same cell of Block No. 15/2 on the 12th of March 1967 when the appellant was transferred to another cell. At about 2-30 p.m. On that day while moving out of this cell Hussain Bakhsh (appellant) wanted to carry with him the earthen pitcher meant for drinking water to which Farzand Ali (deceased) objected resulting in an altercation about it between them. Sher Khan another convict intervened and taking hold of the pitcher brought it out in the compound of the barrack but he failed to pacify the parties. He therefore placed the pitcher under a tree in the compound. In the course of this altercation Hussain Bakhsh (appellant) took the pitcher and when Farzand Ali (deceased) insisted on retaining it the appellant struck the pitcher on the head of the deceased. The pitcher broke into pieces. Hussain Bakhsh (appellant) then grappled with Farzand Ali (deceased) and threw him on the ground. Gulab, Sajawal and Karamat Ali Shah their co- prisoners in the jail separated them. Farzand Ali (deceased) became unconscious so he was taken to his cell from where he was removed to Jail Hospital under the supervision of Muhammad Usman Head Warder, Dr. Abdul Waheed and Dr. Mazhar Avaisi attended to him but finding his condition deteriorating they sent him to B. V. Hospital, Bahawalpur for better treatment but he expired at about 10-30 p.m. On the same night.
3. The matter was reported to the District Magistrate Bahawalpur vide Exh. P. H. On the next day by Mr. Hadi Bakhsh Baloch Superintendent of the jail requesting him to depute a First Class Magistrate for immediate inquest on the dead body under para. 7.47 of the Punjab Jail Manual. A copy of this letter was sent to the S. H. O., Police Post, Farid Gate, Bahawalpur to register a case against the appellant vide Exh. P. H. 2/A. Mr. Taj Muhammad Khan Lodhi P. C. S. Magistrate 1st Class Bahawalpur was accordingly deputed for this purpose who held the necessary inquest vide Exh. P. H/3.
4. After the formal registration of the case S. I. Jam Ghulam Qadir went to the B. V. Hospital, Bahawalpur and held the police inquest vide Exh. P, E. And posting F. C. To guard the dead body he went to the New Central Jail, Bahawalpur where he inspected the spot and seized the pieces of pitcher Exh. P. 1 weighing 3 seers and 7 chhatanks vide memo. Exh. P. C. He got prepared the site plans Exh. P. D. And P. D/1 by Azim Bakhsh panwari and on the completion of the investigation challaned the appellant under section 303, P. P. C. Resulting in his conviction as above.
5. On the 13th of March 1967 Dr. Muhammad Khalid then Medical Officer of the Bahawalpur Hospital performed the autopsy on the dead body of Farzand Ali (deceased) 3 at p.m. Vide Exh. P. K. He found no external mark of injury over it except a depression 2' x 1--' on the right temporal region, 2- -' above the pinna of the right ear. On internal examination he found a fracture in the right temporal region i. e. Of the greater width of right sphenoid with one massive blood clot dark brown in colour and was jelly like placed extradurally in the cranial cavity on the right side extending up to the right cerebellum lobe causing compression of brain which resulted in the death in the deceased.
6. After the close of the prosecution evidence at the trial Hussain Bakhsh (appellant) denying all the above allegations pleaded not guilty to the charge but led no evidence in his defence,
7. In addition to the above-detailed formal and medical evidence the prosecution examined Mr. Taj Muhammad Magistrate 1st Class as P. W. 4 about the inquest held by him while Karamat Ali Shah P.
W. 8 Muhammad Yaqub P. W. 17 and Rehmat Ullah P. W. 19 supplied the ocular account of the occurrence but none of these witnesses supported the prosecution case. On the request of the learned Public Prosecutor the statement of Muhammad Yaqub and Rehmat Ullah P. Ws. Made by them before committing Magistrate were transferred to the sessions the under the provisions of section 288 of the Cr. P. C. Ghulab was yet another eye-witness who was released from the jail in the meanwhile and was not available as a witness at the trial so on the request of the learned public prosecutor his statement before the committing Magistrate was also transferred to the sessions file under section 33 of the Evidence Act. There is, however, no request of the Public Prosecutor on record for transfer of the statement of Karamat Ali P. W. Made by him before the committing Magistrate. It was accordingly not transferred to the Sessions file.
8. As regards the transfer of the statement of Gulab P. W. Recorded by the committing Magistrate to the file of the sessions case under section 33 of the Evidence Act we find that the learned Sessions Judge has not complied with the pre-requisities for the purpose. Before any evidence recorded in any earlier judicial proceedings can be received under section 33 of the Evidence Act the Court is to satisfy itself that reasonable and diligent search was made to make the witness available in Court but in the present case the issuance of any summons or warrants for his service after his release from jail on his original address or any report that Gulab P. W. Was not traceable had not been produced and placed on the record of the case in support of this contention. It appears that the learned Judge had accepted the statement of the Public Prosecutor in this behalf which was not sufficient for invoking the provisions of section 33 of the Evidence Act so we hold that the statement of Gulab P. W. Recorded by the inquiry Magistrate has not been properly brought on the record of the trial Court. In the absence of any direct evidence the declaration that delay and unnecessary adjournment would be involved in procuring the appearance of the witness was not sufficient for satisfying the relevant conditions of section 33 which requires a definite report that the witness could not be found. For this view we are fortified by the observations made by their Lordships of the Supreme Court in Allah Ditta v. The State (PLD 1958 SC (Pak.) 290), so the statement of Ghulab P. W. Recorded by the committing Magistrate would have to be excluded from considera--tion as evidence in this case.
9. We are thus left with the statement of Rehmat Ali and Muhammad Yaqub P. Ws. Which call for a close scrutiny to see if their evidence did not suffer from any legal infirmity.
10. It is on record that on the 19th of November 1969 when Karamat Ali Shah and Muhammad Yaqub P. Ws. Appeared before the learned Sessions Judge for the first the they requested him that before they were called upon to make a statement in this case they should be transferred from this jail to some other jail as they apprehended maltreatment at the hands of their co---prisoners as also the officers and staff of the jail due to serious party faction therein if they told the truth. The learned trial Judge found some weight in the stand taken by them and wrote a D. O. To the Director Prisons for the transfer which was complied with so they came from another jail when their statements were recorded at the trial and they did not support the prosecution case.
11. On each question of the Public Prosecutor in their cross---examination they had reiterated that their statements at the inquest held by the Magistrate and during the inquiry were false and were made under coercion and duress of the jail officials. While scanning the record of the case we came across to applications one made by Karamat Ali and the other by Muhammad Yaqub P. Ws.
During commitment proceedings on the 2nd of October 1967 before the inquiry Magistrate. These applications indicated that even then these witnesses had genuine apprehensions from the jail authorities if they went back to the same jail after making an independent statement in the inquiry proceedings or at the -trial. The Additional District Magistrate who held inquiry in this case on receipt of their applications had also directed their transfer from Central Jail, Bahawalpur to some other jail before they made their statements. These to prosecution witnesses Muhammad Yaqub and Karamat Ali bad thus made the same statement before the committing Magistrate as made by them at the trial. It was thus not an afterthought to cover their somersault. The statement of Muhammad Yaqub P. W. Made before the committing Magistrate showed that he had again verbally requested the inquiry Magistrate to give an adjournment in the case on that date to provide him an opportu--nity for consulting his relatives before giving his evidence but his request was turned down. He had added that he made this request to the Court because he had still some apprehensions and that the Court had told him that if he did not give any statement he would commit an offence and would be prosecuted for it. This was an eloquent testimony to the fact that while making a statement before the committing Magistrate he was under some undue pressure.
In this background it would not be safe to rely on their earlier state--ments which are even otherwise inconsistent with each other were not oblivious to the fact that all these eye-witnesses were co---prisoners of the appellant and they might have chosen to save him from the gallows while the other was already dead as argued by the leaned trial Judge but in the circumstances discussed above the other possibility cannot also be excluded in view of often reported conditions prevailing in the jails. Moreover the the to other eye-witnesses Sher Muhammad and Sajawal had not been produced, the former was given up during the commitment proceedings and the latter at the trial. There being no other evidence to connect Ghulam Hussain (appellant) with the offence we find that the prosecution case is not free from doubts the benefit of which cannot be denied to the appellant. We therefore accept this appeal and acquit him of the charge levelled against him.
11. The sentence of death awarded to him is accordingly not confirmed. The reference is answered accordingly.
12. Before parting with the case we find that Mr. Mazhar Hussain, Advocate had been engaged in this case to defend the appellant at the trial and be had represented him on no less Man five hearings and the evidence of fourteen witnesses had been recorded in his presence. On the 30th of January, 1969 this counsel had gone away to Lahore of course with the permission of the Court and Mr. M. A. Farani, Advocate appears to have been engaged on that very day to defend the appellant during the rest of the trial. Four P. Ws. Were examined on that very day which was against the directions comprised in Rule 1, Chapter XXIV of Part C of the High Court Rules and Orders, Volume III which requires the appointment of such a counsel in the to enable him to study the necessary documents supplied to him for the defence of the case. It has been observed by this Court in a number of cases that one or to days the was not adequate for such a counsel to prepare the defence of a pauper accused in such a serious case. Khadim v. The Crown (PLD 1954 Lah. 69) and Iftikhar-ud-Din v. The Crown (PLD 1954 Lah. 547) are the to celebrated authorities on this point wherein the proceedings of a trial on account of the conduct of the learned Judge in appointing a counsel at State expense on such a short notice as well as the conduct of a counsel accepting the case in these circumstances was disapproved by their Lordships and the proceedings were quashed for a fresh trial.
13. A copy of this judgment shall be sent to the learned trial Judge for future guidance.
THE END