1. WAHEEDUDDIN AHMAD, J.---This appeal by special leave is directed against the judgment of the High Court of West Pakistan, Lahore, dated the 16th March 1970, in Criminal Appeal No. 838 of 1968, by which the appeal filed by the appellants was dismissed and their death sentences were confirmed.
2. Appellants Muhammad Yar son of Bahadur, Ghulam Rasul, Ahmad Yar sons of Wali, Hayat son of Bakhsha, Khan Muhammad son of Muhammad, Salabat son of Baqri, along with Muhammad Yar and Azim sons of Wali and Amin son of Sher Ali, were tried by the Additional Sessions Judge, Sargodha, for committing rioting and five murders on the night between 19/20th June 1967, Mst. Bibi alias Pathani and her four sons, namely, Hayat, Allah Yar, Ahmad Yar and Muhammad Yar with Tokas, spear, carbine, hatchets and sticks within the area of village Tangowali, Police Station Saddar, Sargodha and were sentenced to death by judgment dated the 18th November 1968, under section 302/149, P. P. C. And were further sentenced to one year's R. I. Each under section 148, P. P. C.
3. On each count to be operative if the death sentences were not confirmed. This judg--ment was challenged in Criminal Appeal No. 838 of 1968 (Murder Reference No. 19 of 1969), and a Division Bench of the West Pakistan High Court, Lahore, by judgment dated the 16th March 1970, dismissed the appeal of the appellants and confirmed their death sentence. The appeal of Muhammad Yar son of Wali, Azim and Amin was accepted and the death sentence imposed on them was set aside.
4. The prosecution case is that the appellants and the deceased who are Kalayars by caste and residents of village Tangowali, Tehsil and District Sargodha were collateral from a common ancestor. Each family owned about six killas of land in the village. Their relations were strained owing to matrimonial differences. It is alleged that Hayat deceased's Nikah was per--formed with Mst. Bakhai, sister of Ghulam Rasul appellant but rukhsati had not taken place. He had to divorce his wife at the instance of accused persons. Hayat deceased pressed the accused persons to give another woman in marriage to him. One Manak, a maternal uncle of Ghulam Rasul, wanted the hand of Mst. Bakhai for his son. Hayat deceased opposed it and threaten--ed to create trouble on the occasion of marriage unless the accused first agreed to give another woman of theirs-in marriage to him. It is stated that this unreasonable attitude of Hayat deceased gave offence to the accused and served as a motive for total extermination of Hayat's family by the accused persons.
5. It was on account of this enmity that on a moonlit night between 19th/20th June 1967, the appellants, of whom Ghulam Rasul, Hayat, Khan Muhammad and Salabat were armed with Tokas, Ahmad Yar with a spear, Muhammad Yar son of Wali with a carbine, Azim with stick and Muhammad Yar son of Bahadur and Amin armed with hatchets, after forming themselves into an unlawful assembly, went towards the Kotha of Hayat deceased, entered the courtyard which had no compound wall and found Hayat, his brother Allah Yar and his mother Mst. Bibi alias Pathani lying asleep on three different cots. Hayat was put to death. His mother got up on his alarm to rescue him but Ahmad Yar gave her a spear blow in the abdomen. Salabat and Ghulam Rasul gave her Tokas blows. Allah Yar deceased who rushed towards his mother was given a hatchet blow on the head by Amin. He fell on the ground. Muhammad Yar son of Bahadur, Hayat and Khan Muhammad inflicted hatchet injuries to him. This occurrence was witnessed by Ahmad Yar Chowkidar P. W. 3, Shera P. W. 6 and Bakhsha who having been won over was given up. It is alleged that after committing these murders the above nine persons proceeded towards the dera of Haji Jalal where Ahmad Yar deceased, the third son of Mst. Pathani, was lying asleep. On hearing the barking of the dogs, Ahmad Yar deceased and other three persons who were sleeping on the adjoining cots got up Ahmad Yar, who was trying to leave his cot, was fired by Yar Muhammad son of Wali with his carbine on the head. He fell dead on the cot. While leaving Ahmad Yar gave a spear blow on the shoulder of Hayat deceased. Sarang P. W. 2, Maulu P. W. 7 and Shah Muhammad, who was given up as a witness, were sleeping on the adjoining cots, saw this part of the occurrence.
6. From this place, the above nine persons proceeded to the behak of Muhammad Hayat deceased where Muhammad Yar, the fourth son of Mst. Pathani Bibi was sleep--ing on a cot. Shamsher P. W.
7. 4, Allah Yar alias Yara P. W. 5 and Muhammad Hayat who was given up as having been won--over, was sleeping on the adjoining cots. When they reached near the cot of Muhammad Yar deceased, the above nine persons challenged him. The three persons who were sleeping on the adjoining cots requested them not to kill him but Muhammad Yar and Ahmad Yar appellants threatened them with dire con--sequences in case they tried to interfere. It is alleged that Azim caught hold of Muhammad Yar deceased by hair and felled him on the cot. Muhammad Yar son of Bahadur and Amih gave him hatchet blows on the shoulder and neck followed by Hayat and Ghulam Rasul appellants, who gave him injuries with Tokas on the neck. Muhammad Yar was put to death in this way.
8. Sarang P. W. 2 was informed by Ahmad Yar Chowkidar P. W. 3 about the first part of the occurrence, namely, the murder of Mst. Pathani, Allah Yar and Hayat and by Shamsher P. W. 4 about the murder of Muhammad Yar.
9. First Information Report was lodged by Sarang P. W. 2 at Police Station Saddar, Sargodha at 6 a.m.
10. Which is at a distance of 12 miles from the place of occurrence. It was recorded by Sikandar Khan S. I., P. W.
14. He also investigated the case. He went on the spot and prepared the injuries statements of the deceased persons and handed over all the dead bodies to F. Cs. Muhammad Nazir P. W. 10 and Muhammad Sadiq P. W. 11 for taking them to mortuary for post-mortem examination.
11. On the 20th June 1967, all the nine persons were produced before the Sub-Inspector. He got removed blood-stained chadar, Exh. P. 13 from Salabat. Kurta, P. 14 from the person of Ghulam Rasul, kurta, Exh. P. 15, from Khan Muhammad, vest, Cxh. P. 16, from the person of Ahmad Yar, vests, Exh. P. 17 and P. 18, from the persons of Hayat and Muhammad Yar son of Bahadur. They were made into separate sealed parcels which were taken into possession vide Memo. Exh. P. G. Injuries were found on the left thumb of Ghulam Rasul and an injury state--ment, Exh. P. E. Was prepared. Later on, a result of interroga--tion, Muhammad Yar son of Wali led to the recovery of carbine, Exh. P. I from inside of his residential Kotha. This was taken into possession vide Memo, Exh. P. A. Ahmad Yar appellant led to the recoveries of spear, Exh. P. 2, stick of Azim appellant, Exh. P. 3 and hatchets, Exhs.
12. P. 4 and P. 5 of Amin and Muhammad Yar son of Bahadur respectively which were lying buried in the garden. The two hatchets which were stained with blood were made into sealed parcel. All these weapons were taken into possession vide Memo. Exh. P. B. Ghulam Rasul led to the recoveries of his own Toka, Exh. P. 6 and Tokas, Exhs. P. 7, P. 8 and P. 9 of Salabat, Hayat and Khan Muhammad appellants respectively from a khola near his residential kotha where they lay buried. All the Tokas were stained with blood. They were made into separate sealed parcel and taken into possession vide Memo. Exh. P. C. The Sub-Inspector prepared a rough site plan, Exh. P. D. Of the various places of recoveries.
13. Post-mortem examination of the five dead bodies was conducted by Dr. Khurshid Alam of District Headquarters Hospital, spa Sargodha on the 20th June 1967, ride post-mortem examination report, Exh. P. H. On the following day, the same doctor examined Ghulam Rasul appellant vide his Report, Exh. P. N. Ah found an incised wound 1--- x 1/6--- bone deep on tae left thumb at a distal end. After the investigation the accused persons were sent up to face inquiry. They were committed to the Sessions Court. The plea of appellant and other persons who were tried along with them was of bare denial. They attributed the case against them due to enmity between the parties.
14. The special feature of this case is that there were nine witnesses available to support the prosecution case in respect of each of three incidents. Out of them, two witnesses each were examined in respect of the three incidents. One witness in each case was given up as having been won-over. The witnesses who appeared for the prosecution did not fully support the prosecution version. They made concession in favour of the accused in cross-examination. They were allowed to be cross-examined by the Additional Public Prosecutor and their statements before the committing Magistrate which supported the prosecution ease were transferred to the Sessions file under section 258, Cr. P. C. Sarang P. W. 2 was an exception to this, His statement was not brought on the record under section 288, Cr. P. C. Sarang P. W.2 supported in examination-in-chief the version given in the f'. I. R. And the statements made before the committing Magistrate. He supported the recovery of the bloodstained clothes remove from the persons of the appellants and the recovery of the weapons. During his cross-examination, he made same concession in favour of the appellants. He stated that he could only see the appellants from behind ,and guessed their identity from their statures. He further stated that they were not wearing any shirts and vests. He also admitted that he was on inimical terms with the accused. He also stated that accused persons appeared before the police at sotewela. He admitted that the deceased had other enemies in the village. Ahmad Yar Chowkidar P. W. 3, in his examina--tion-in-chief fully supported the prosecution version. In cross---examination, he made concession in favour of the accused persons. He denied having witnessed the recoveries made at the instance of Ahmad Yar son of Wali and Ghulam Rasul although he had thumb-marked the relevant entries of recovery Memos.
15. Exhs. P. N. And P. C. He admitted that he had correctly made the statement before the committing Magistrate which was read out to him at the trial. The concession that he made in favour of the appellants was that the accused had muted their faces and he identified them from their statures having seen the faces of some of the accused and backs of the rest. Shamsher P. W. 4 also implicated all the appellants in examination-in-chief. He tried to make the identity of the appellants doubtful by stating that he had identified them from their statures and have just guessed. He further conceded that his cot was at a distance of 40 karams from that of the deceased and that he and his father had enmity with the accused persons. P. W. 5 Yara stated that he identified the accused persons from their backs and statures. He did not see their faces. He guessed that the murderers might be the accused persons. He conceded that he was a mueen of Sarang P. W. And as his private servant had no particular job and slept there out of fun. Sher Machhi P. W. 6, admitted that he was a servant of Sarang P. W. And stood at a distance of 20 to 30 karams from the accused out of their fear. He further stated that he made his statement before the committing Magistrate at the instance of Sarang. Maulu stated that he did not identify the accused persons from their faces. He guessed their identity from their statures. He admitted in cross--- examination that the deceased was sleeping at a distance of 30 karams from him.
16. The learned Sessions Judge and the High Court relied on the statements made before the committing Magistrate of the above witnesses brought on record under section 288, Cr. P. C. And the High Court upheld the conviction of the appellants on the basis of corroborative evidence produced in support of the prosecu--tion case. In this connection the High Court observed as under :- "Notwithstanding the above confusion sought to be deliberate--ly created by the P. Ws. We have not been able to find any basic falsity or inherent improbability in the consistent version emerging from their testimony during inquiry which lent full support to the earliest version set out in the elaborate F. I. R. Promptly lodged at the police station giving no indication of any embellishment as a result of consultation and conference and, as such, we would be inclined to believe their statements before the committing Magistrate duly transferred to the Sessions file. However, while dealing with such witnesses prudence would require that as a matter of abundant caution we should also insist on corroborative evidence before forming their statements as the basis of conviction."
17. The High Court found the corroboration of the evidence of the prosecution in the recoveries made from Salabat, Ghulam Rasul, Khan Muhammad, Ahmad Yar and Muhammad Yar appellants. Their appreciation about the recoveries is as under :- "This brings us to the evidence of recoveries. According to the Sub-Inspector, all the accused persons appeared before him on the day following the night of murder at about 1-30 p.m. Blood- stained clothes which were removed from their persons. Later, the same day, they led to the recoveries of the weapons of offence. The witnesses of the recovery of blood-stained clothes, namely, chadar P. 13 of Salabat, shirt P. 14 of Ghulam Rasul, shirt P. 15 of Khan Muhammad, vest P. 16 of Ahmad Yar, vest P. 17 of Hayat, vest P. 18 of Muhammad Yar son of Bahadur, taken into possession vide Memo. P. G were Fateh Sher and Sher Muhammad Lambardar of the village. Fateh Sher was given up as having been won-over whereas Sher Muhammad appeared as P. W. 8 at the trial. The confusion sought to be introduced by him was by changing the date of the appearance of the appellants before the police and their arrest, as the third day of the occurrence. When cross- --examined by the A. P. P., he admitted that the Sub-Inspector had correctly recorded the date on Exh. P. G. Which had been correctly prepared in his presence and was read out to him. When cross- examined by the defence counsel, he admitted that the accused were arrested by the police at Nimazwela. His statement before the committing Magistrate was, however, transferred under section 288, Cr. P. C. Notwithstanding the confusion sought to be created by Sher Muhammad Lambardar we find that there is nothing doubtful as to the genuineness of the recovery Memo. Exh.
18. P. G. Which was fully supported by him before the committing Magistrate as also admitted at the trial. Furthermore, we have no reason to disbelieve the Sub-Inspector on this point particularly keeping in view the close proximity of the time of the appellants' arrest to that of the occurrence ; vide Chemical Examiner's report, Exh. P. R. R. And Serologist's report, Exh. P. S. S., all these clothes were found to be stained with human blood which, in our view, furnished sufficient corroborative evidence in respect of Salabat, Ghulam Rasul, Khan Muhammad, Ahmad Yar, Hayat and Muhammad Yar appellants."
19. It would thus appear that the conviction of the appellants is based on the statements made by the prosecution witnesses before the committing Magistrate corroborated by the recoveries made from the persons of the appellants, Mr. Manzoor Qadir, learned counsel for the appellants has contended that the statement of the prosecution witnesses made before the committing Magistrate brought on the record under section 288, Cr. P. C. Could not be read in evidence unless the prosecution witnesses were confronted by them under section 145 of the Evidence Act. In support of this contention, he has relied on section 288 of the Criminal Procedure Code which reads as under :- "Section 228.-The evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purpose subject to the provision of the Evidence Act, 1872."
20. He further relied on section 145 of the Evidence Act which reads as under :- "Section 145.-A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writ--ing being shown to him, or being proved ; but, it is intended to contradict him by the writing, his statement must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
21. In support of his contention, the learned counsel has relied on a Full Bench decision of the Dacca High Court in the case of Chhota Gada and others v. The State (PLD 1964 Dacca 255). He has further referred to decision of this Court in the case of Ahmad Din and another v. The State (PLD 1970 SC 21) and has contended that the view of the Dacca High Court has been approved in this case. In that case this Court observed as under :- "In the present case, the approver's confessional statement, his statement, in the committing Court and the deposition in examination-in-chief at the trial are in complete accord in essential particulars. There does not appear any contradiction between his statement in the committing Court and the statement made by him in examination-in-chief at the trial. It was only in course of cross-examination by the defence counsel that the approver retracted his confession and resiled from his previous statement in the committing Court. When there was no contradiction between his previous statement in the committing Court and his deposition in examination-in---chief in the trial Court, the prosecution was not in need of complying with the formalities prescribed by section 145 of the Evidence Act and was entitled to use his statement in the com--mitting Court as transferred under section 288, Cr. P. C., for the purpose of corroboration of his deposition in examination---in-chief at the trial under section 157 of the Evidence Act for the reason that this section is as much a provision of the Evidence Act as section 145 thereof. The prosecution, at its option, could have also cross-examined the approver under section 145 of the Evidence Act as to his previous statement in the committing Court and his attention could have been drawn to it in order to bring out the contradictions between that statement and what was stated by him in the trial Court in cross-examination by the defence. But this course not having been adopted in this case, the prosecution was not dis--entitled to use the statement transferred under section 288 of the Criminal Procedure Code as evidence for the purpose of corroboration under section 157 of the Evidence Act. Sec--tion 288, Criminal Procedure Code read with sections 145 and 157 of the Evidence Act makes it quite clear that when a witness in his examination-in-chief in the Court of Session gives the same evidence as in the committing Court, but resiles from it in cross- examination, his evidence in examination-in---chief can be corroborated by using his previous statement in the committing Court and for this purpose, there is no need for compliance with the provisions of section 145 of the Evidence Act for the simple reason that there is no contradic--tion with which the witness can be confronted. If, however, a witness is hostile from the start and makes statement in examination-in-chief at the trial different from the statement made in the committing Court and it is intended to transfer his statement in the committing Court to the Sessions record under section 288, Cr. P. C., for being used as evidence, it is necessary to draw the attention of the witness to that part of the statement which is inconsistent with the statement at the trial. In this view of the matter, the approver's statement in the committing Court, in the instant case, could be rightly used as evidence under section 157 of the Evidence Act for the purpose of corroboration of his deposition in examination-in---chief at the trial. Thus, there is no substance in the conten--tion that in this case the previous statement of the approver in the committing Court could not be treated as evidence under section 288, Cr. P. C. Without drawing his attention to that statement."
22. We adhere to the principles enunciated above but would add that if a witness supports the prosecution case in examination-in---chief but resiles from it in the later part of that statement, his statement before the committing Magistrate can be brought on the record for corroborating it with the statement made in the trial Court. That statement can be used as a substantive evidence and conviction can be based on such evidence if it is further corroborated by independent piece of evidence.
23. Judging the facts of the present case in the light of the above principles, it is quite clear that the learned Courts below are fully justified in relying on the statements of witnesses made before the committing Magistrate brought on the record under section 288 of the Criminal Procedure Code. It will be noticed that most of the witnesses were not hostile to the prosecution from the very beginning. They made concessions during their statements and in such circumstances, it was open to the prosecution to invoke section 288 of the Criminal Procedure Code and to bring the statements of the prosecution witnesses on the record with a view to corroborate them with the statements made before the committing Magistrate. There was no need to confront the witnesses with their statements under section 145 of the Evidence Act. This is exactly what has been done in the present case and we are satisfied that the statements made before the committing Magistrate were rightly used to consider the guilt of the appellants.
24. On careful consideration of the evidence produced in this case, it is quite clear that all the prosecution witnesses had been won-over by the accused persons. This was admitted by P. W.
25. Sarang. They had, therefore, made concessions in favour of the accused persons. It was in these circumstances that resort was made to section 288, Cr. P. C. And the statements made before the committing Magistrate was taken into consideration for finding out the guilt of the accused persons. In the present case, the statements made before the committing Magistrate by the prosecution witnesses proved beyond reasonable doubt that the appellants were responsible for the murder of the deceased persons. These statements find corroboration in the recoveries made from the appellants, namely, chadur P. 13 from Salabat, shirt P. 14 from Ghulam Rasul, shirt P. 15 from Khan Muhammad vest P. 16 from Ahmad Yar, vest P. 17 from Hayat and vest P. 18 from Muhammad Yar son of Bahadur. All these articles were found stained with human blood by the Serologist and, therefore, the; learned Judges of the High Court were perfectly justified in treating it as corroborative evidence of the statements made by the prosecution witnesses in the committing Court. The learned Judges of the High Court did not take into consideration the recoveries of the weapons and we consider that in the circum--stances of the present case they were justified in doing so. In this view of the matter the High Court was perfectly justified in upholding the conviction of the appellants under section 302/149, P. P. C., and no exception can be taken to it. We, therefore, find no force in this appeal which is dismissed.