1. ' QURBAN SADIQ IKRAM, J.-- This is a State appeal against the judgment of the learned Additional Sessions, Lahore dated 8-8-1967, by which Abdul Sattar alias Boota (since dead), Kashmira Singh (since repatriated to India), Farzand alias Farzandi (27), Muhammad Hussain alias Sain (24) respondents and their co-accused Abu Zar, Mehr Khan, Ghulam Masih, Maula Bakhsh, Sanaullah, Habibullah, Safdar Ali, Muhammad All and Muhammad Ashraf were acquitted of the charges under sections 120-B, 148, 302/149, P.P.C.
2. The occurrence in this case took place on 21-7-1963 at 11.00 a.m. Within the premises of District Jail, Kasur. The formal F.I.R. Exh.P.F./1 was recorded at 12.20 p.m. On the same day on the basis of statement Exh. P.F. Of Hasan Muhammad recorded at 12.00 noon. It was alleged therein that he alongwith his brother Mansab Ali (P.W.24), Muhammad Hussain deceased and Abdul Ghafoor (P.W.25) was in district Jail Kasur in connection with a case under section 307, P.P.C. (F.I.R. Exh.P.D.D.).
2. There was a cross-case also against Muhammad Ali, Safdar and others under section 307, P.P.C.
3. (F.I.R. Exh.P.E.E.) and they were also in the same prison. On the day of occurrence, the opponents of Hasan Muhammad (P.W.20) had gone out of the jail in connection with remand but Muhammad Hussain alias Sain (respondent) stayed back in jail on the pretext of his illness. It was further alleged by him that Muhammad Sharif alias Jagga (P.W.15) used to frequently visit his brother Muhammad Hussain deceased, and had developed intimacy with him. Muhammad Sharif alias Jagga (approver P.W.15) was a lambardar in jail and, therefore, could move about freely. He was lodged in Room No,1 of Barrack No,8 where Muhammad Ali, Safdar and their companions were also lodged. Muhammad Sharif alias Jagga (approver) on many occasions had asked Muhammad Hussain deceased to accompany him to his Room No,1 in Barrack No,8 but he always replied that his enemies were lodged in that barrack, therefore, he would not go there. On the day of occurrence, at about 10.30 a.m. Jagga came to Muhammad Hussain deceased in Barrack No,5. At that time, Hasan Muhammad complainant, his brother Mansab Ali P.W, Inayat P.W. And Ghafoor P.W. Were playing cards, while Muhammad Hussain deceased was sitting near them. Jagga (approver) asked Muhammad Hussain deceased to accompany him to his barrack. Muhammad Hussain hesitated to go there but Jagga approver told him that his enemies had gone out of jail. At this Muhammad Hussain accompanied Jagga approver to that barrack. In his absence Hasan Muhammad P.W etc. Took their meals but the meals for Muhammad Hussain deceased remained lying there. At this, Hasan Muhammad P.W. And Muhammad Sharif son of Nawab went towards barrack No,8 to ask Muhammad Hussain deceased to come to Barrack No,5 for his meals. When they reached in front of Barrack No,8, the complainant saw Muhammad Hussain deceased being held by Kashmira Singh accused from one side and by Farzand alias Farzandi accused from other side and being brought out of room No,1 in the verandah of Barrack No,8. They also saw that Muhammad Hussain deceased was being given knife blows by Muhammad Hussain alias Sain accused, Abdul Sattar alias Boots accused and Muhammad Sharif alias Jagga (approver). This occurrence was witnessed by Mansab All and Abdul Ghafoor P.Ws. Also who were following them.
4. They raised alarm as a result of which the accused left Muhammad Hussain deceased and climbed up the roof of the jail hospital, and started throwing brickbats at them from the said roof. It was further alleged that one Karam son of Dare, a cousin of Muhammad Hussain alias Sain, a convict and Lambardar was incharge of the central tower. He did not sound alarm immediately.
5. After about half an hour, there was danger alarm in jail, which brought the jail officials to the spot.
6. Muhammad Hussain died immediately after the occurrence.
7. ' After the alarm in jail, the Superintendent and the Assistant Superintendent of Jail, reached the spot. The police also arrived there, and persuaded Abdul Sattar, Kashmira Singh and Muhammad Hussain accused to come down from the roof of the jail hospital. They did so whereafter the accused and the witnesses were lodged in their respective cells. The F.I.R. Was lodged after the law and order had been restored in the jail.
8. 3.After registration of the case, the police undertook investigation.
9. ' All the four assailants were arrested. During investigation Muhammad Sharif alias Jagga (approver) led to the recovery of his blood-stained shirt P.1 and Shalwar P.2 which were taken in possession on 21-7-1963 vide memo. Exh.P.M. By the investigating officer. Kashmira Singh accused was found wearing blood-stained clothes shirt P.10 and Chaddar P.11 which were taken in possession on the same day vide memo. Exh.P.N. Muhammad Hussain alias Sain accused was wearing blood-stained Chaddar P.12 and Bunian P.13, which were taken in possession vide memo.
10. Exh.P.O. Farzand accused was wearing blood-stained clothes shirt P.14 and Chaddar P.15 which were taken in possession on the same day vide memo. Exh.P.Q. Abdul Sattar was wearing blood- stained clothes Bunian P.19 and Chaddar P.20, which were taken in possession vide memo. Exh.P.X.
11. All these memos. Were prepared by the investigating officer and attested by Raja Muhammad Barkhurdar Khan (P.W.11), Superintendent Jail and Tafazal Hussain (P.W.12) Assistant Superintendent Jail. On the same day, police collected brickbats which the accused had thrown from the roof of the Jail hospital vide memo. Exh.P.Y. The police also took in possession blood-stained brick from Room No,1 vide memo. Exh,P.R. Another blood-stained brick was removed from the verandah and taken in possession vide memo..Exh.P.S. The police also took in possession blood-stained shoes ( (St ) P.18/1-2 belonging to Muhammad Hussain deceased from the spot vide memo. Exh.P.V. All these articles were made in separate sealed parcels. On the next day of occurrence, Muhammad Sharif alias Jagga (approver) led to the recovery of blood-stained knife P.3 from the Chimni in the back of the jail hospital, which was taken in possession vide memo. Exh.P.D. On the same day, Abdul Sattar alias Boota accused led to the recovery of knife P.4 from beneath the heap of wood lying in the wood godown of jail, which was taken in possession vide memo. Exh.P.C. Similarly, Muhammad Hussain alias Sain accused led to the recovery of blood-stained knife P.5 from beneath the heap of clay from behind the Jail hospital, which was taken in possession vide memo. Exh.P.E. All these memos. Were signed by Raja Barkhurdar (P.W.11) and Tafazil Hussain (P.W.12), Hasan Muhammad (P.W.20), Miraj Din (P.W.21) and prepared by the investigating officer. These three knives were made into separate sealed parcels. The investigating officer on 21-7-1963 'recovered blood-stained blanket P.16 vide memo. Exh.P.T from room No,1 and blood-stained Khes P.17 from the same place vide memo. Exh.P.U. All the above mentioned articles P.1 to P.20 were found to be stained with human , blood vide report of the Chemical Examiner Exh.P.T.T. And that of the Serologist Exh.P.U.U. At the time of arrest, Kashmira Singh and Muhammad Hussain alias Sain accused were found to be injured. They were medically examined by the medical officer, District Jail,Kasur. At the time of examination, Muhammad Hussain alias Sain accused vide M.L.C. Exh.P.Z.Z. Was found to have four incised wounds and numerous lacerations of different sizes on his person. Kashmira Singh accused was found to have two incised wounds on his person. Injuries on the person of both these accused were simple in nature by sharp-edged weapon and of 7/8 hours duration. They were examined on the day of occurrence at about 5.30 p.m.
12. ' The post-mortem on the dead body of Muhammad Hussain deceased Was conducted by Dr.Akhtar Aleem Hashmi (P.W.1). He found 20 incised wounds on various parts of the body mostly on the neck and abdomen. The post-mortem was conducted on 21-7-1963. On dissection, 7th and 8th ribs on the right side of chest were found cut, the pluera was also found cut, larynx and trachea were found cut, the right lung had collapsed, all blood vessels of neck were found cut and paritonial cavity was full of blood, liver was found cut through and through, stomach was full with slightly digested food. In the opinion of the medical officer, injuries Nos.6 and 13 on the neck and abdomen were sufficient to cause death individually in the ordinary course of nature.
13. ' After completion of investigation, 13 accused out of total of 14 accused were challaned. The 14th accused Muhammad Sharif alias Jagga was made approver and, as such, he appeared as a prosecution witness in this case.
4. During trial, the rosecution examined 27 witnesses in all. P.W.7 Nazar Muhammad _stated that he was on duty in place of Muhammad Iqbal Head Warder, and was supervising the prisoners who were washing their clothes at about 10.30 a.m. On 21-7-1963. He further stated that he saw Abdul Sattar alias Boota, Kashmira Singh and Muhammad Hussain alias Sain present on rooftop of the Jail hospital, and throwing brickbats. He did not see the murder of Muhammad Hussain but stated that he found a person lying dead inside Room No,1 of Barrack No,8. He got him removed from that places and put his dead body on a cot just near the inner main gate in Jail premises. Muhammad Ashraf (P.W:10) was also a jail employee. He produced the interview register containing entries Exh.P.O.O. That on 19-7-1963, Habibullah (acquitted accused) had an interview with Muhammad alias Jagga (approver). P.W.11 Raja Muhammad Barkhurdar, Superintendent Jail and P.W.12 Tafazil Hussain, Assistant Superintendent Jail stated that it was Sunday on the day of occurrence and they had gone to meet some Magistrates when they heard about the danger alarm in jail. They came there and found Muhammad Hussain deceased dead and the three accused Abdul Sattar, Kashmira Singh and Muhammad Hussain alias Sain present on the roof of the jail hospital. It was further stated by them that they persuaded those three accused to come down. They came down from the roof and were lodged in their cells. The police arrived in jail and undertook investigation.
14. These two witnesses supported all the recoveries given in detail above. P.W.13 Mehmood All Shah S.I. Proved the F.I.Rs, EXh.P.D.D. And Exh.P.E.E. In two cross-cases between the parties, mentioned above. P.W.15 Muhammad Sharif alias Jagga was an accused person. He was tendered pardon and made approver. He has supported the prosecution case as P.W.15. The pardon to Muhammad Sharif (approver) was given by Raja Salim Akhtar A.D.M. (P.W.22), and thereafter Rana Muhammad Ahmad Khan, Magistrate (P.W.16) recorded his statement under section 164, Cr.P.C. Hakam Ali (P.W.18.), father of Muhammad Hussain deceased, provided the evidence on motive and conspiracy and the accused. He had received information about the conspiracy from P .W.19 Ghulam Qadir, who did not support the prosecution during trial and was declared hostile. The eye- witnesses account was furnished by P.W.17 Inayat Ali, P.W.21 Miraj Din, P.W.20 Hasan Muhammad, P.W.23 Ghulam Nabi, P.W.24 Mansab Ali, and P.W.25 Abdul Ghafoor. Out of these witnesses, Inayat Ali and Miraj Din did not support the prosecution during trial and were declared hostile. P.W.26 S.I.
15. Saadat Ali recovered crime weapons from the accused and partly investigated the case. P.W.27 A .S.I. Zahur Ahmad also partly investigated the case and effected recoveries from the spot and also the blood-stained clothes of the accused.
5. After the close of prosecution evidence, all the accused denied the charge and pleaded innocence. They attributed this case against them on account of enmity but did not proddce any evidence in defence.
16. ' The learned trial Judge after completion of the trial came to the conclusion that the eye- witnesses account was furnished by relatives of the deceased who are on inimical terms with the accused; that the independent eye-witnesses, excepting Ghulam Nabi, were declared hostile and did not support the prosecution during the trial. Regarding Ghulam Nabi, it was held that he was not a reliable witness because of the material contradictions and improvements in his statement.
17. He further came to the conclusion that there was no independent corroboration to the testimony of the approver as well as the eye-witnesses. He further held that the recoveries of clothes and knives could not be relied upon and that there was conflict between the medical evidence and the ocular evidence. With these findings, he proceeded to acquit all the accused from all the charges.
18. ' The State appeal was filed against all the acquitted accused but was admitted against Abdul Sattar alias Boota, Kashmira Singh, Farzand alias Farzandi and Muhammad Hussain alias Sain.
6. We have heard the learned counsel for the State in support of this appeal. It was contended by him that the eye-witnesses were natural witnesses of the place of occurrence. They were supported by the evidence of approver and the recoveries of blood-stained clothes and knives.
19. The medical evidence also supported the prosecution case. It was finally argued that the statements of the witnesses, who were declared hostile, before the Committing Magistrate were transferred on the file of this case under section 288, Cr.P.C. And, as such, those statements should have been relied upon as substantive piece of evidence. It was, therefore, argued that the acquittal of the accused-respondents was illegal and has resulted in grave miscarriage of justice.
7. Learned counsel for the respondents controverting the contentions of the learned counsel for the State submitted that the circumstances belied the testimony of the eye-witnesses as well as the approver; that the recoveries could not be relied upon in the instant case and, therefore, did not provide corroboration to the ocular account; that the eye-witnesses account was contradicted by the medical evidence; that the statements transferred under section $88, Cr.P.C. Were only a weak type of evidence which also required corroboration; and that the evidence of conspiracy having failed would mean that the occurrence took place in the circumstances other than those mentioned by the eye-witnesses. It was finally contended that the respondents were acquitted on 8-8-1967 and this appeal has come up for final disposal after more than 17 years. It was, therefore, argued that the acquittal of the respondents should be maintained.
8. We have gone through the record of this case and have heard both the learned counsel at great length. A perusal of the evidence would indicate that Hasan Muhammad complainant and Mansab P.W. Are real brothers of Muhammad Hussain deceased. The wife of Muhammad Hussain deceased was a real sister of Abdul Ghafoor P.W. These three witnesses are related to the deceased and were on inimical terms with Muhammad Hussain alias Sain accused, because he was being prosecuted under section 307, P.P.C. Alongwith Muhammad All and Safdar Ali both acquitted accused. Inayat Ali (P.W.17) and Miraj Din (P.W.21), no doubt, supported the prosecution case before the Committing Magistrate, but resiled from their statements during the trial and were declared hostile. Their statements before the Committing Magistrate were admitted in evidence during trial under section 288, Cr.P.C. It is correct that these statements could be relied upon but these statements provided only very weak evidence and needed corroboration. In support of this view reliance is placed on Subhan Khan v. The State PLD 1960 (W.P.) Lah. 1 and Muhammad Ahmad alias Mahanda v. The State PLD 1970 SC 72. In the case of Subhan Khan, a Division Bench of this Court held that: "Technically there may be no legal objection for a conviction being based on such depositions transferred under section 288, Cr.P.C. But as a rule of prudence, now well-recognised, Courts must look for positive and material corroboration of such statements. The basic thing to consider as in all types of evidence, is, whether the evidence furnished by these statements is true. The mere fact that a witness has gone back on his previous statement and is helping the accused for one reason or another will not raise any presumption that "the previous statement" is true, and the statement made at the trial is false as both may be untrue."
20. ' In the case of Muhammad Ahmad alias Mahanda, it was held: "There is no rule of law and none need be imported, that while such a statement is believed to be trustworthy and honest, it must still require corroboration to make it acceptable to be relied upon.
21. However, as a rule of prudence, the superior Courts in this country have laid down from time to time that since a witness who makes one statement before committing Court and conveniently changes it at the trial stands self-condemned as a liar, his former statement transferred under section 288, Cr.P.C. Cannot be unreservedly accepted with implicit faith and hence the need for its corroboration by some independent source. Each case, however, has to be decided on its own facts and each statement transferred in a case under section 288, Cr.P.C. Has to be adjusted on its own merits in the context of all the circumstances of the crime."
22. On a perusal of the statements of these two witnesses during the trial as well as made by them before the .Committing Magistrate, we find that there are a large number of improvements and contradictions in them which makes their statements before the trial Court as well as before the Committing Court doubtful.
23. ' Muhammad Sharif alias Jagga (approver) has supported the prosecution case but he being himself an accomplice cannot be relied upon without corroboration. He himself was a convict and was serving imprisonment at the time of occurrence for the last nine years. He was also, at one time, challaned for a murder and sentenced to death though acquitted by the High Court. Before that murder case, he was convicted and sentenced to 7 years' R.I. In a case under section 326/376, P.P.C. He was also challaned in Goonda Act. He was given 30 stripes for violating the jail discipline in Kasur Jail before this occurrence. It was admitted by him that in all he had served a punishment of 100 stripes for violating the jail discipline in different jails. It is admitted by him that he was a Lambardar and was heading a Jatha of persons in Jail. From a perusal of his statement, it appears that he exercised great influence in jail on account of the said Jatha and was in a position to go anywhere he liked inside the jail. It was further admitted by him that he and his Jathadar used to beat and give shoe beatings to prisoners who did not abide by the directions of the Jatha. It would thus be clear that he was a man of highly doubtful character and, as such, no reliance can be placed on his evidence without there being an independent corroboration.
24. The other three witnesses, as stated above, are closely related to the deceased and cannot be relied upon without there being an independent corroboration of their evidence. Another witness, Ghulam Nabi (P.W.23), is, no doubt, independent, but a perusal of his statement would show that he is contradicted by other eye-witnesses and the approver on material points. He has also made improvements in his own statement. In this view of the matter, his statement also needs corroboration.
25. ' It is in evidence that the occurrence took place in Room No,1 of Barrack No,8. The witnesses were lodged in Barrack No,5. Two barracks i.e, Barracks Nos.6 and 7 intervened in between Barracks Nos.
26. 5 and 8. Besides this, there were iron gates in the compound of each barrack. It is nowhere in evidence as to how the witnesses were able to come out of the barrack in the presence of the iron gates. Secondly, each barrack is manned by a Jail Warder but no one of the Jail Staff has been examined or even cited as an eye-witness of the occurrence. It cannot be believed that at that time no one of the jail staff was present inside the jail. According to the prosecution, the occurrence took place firstly inside Room No,1 and then in the verandah in front of the said room. The deceased received as many as 20 injuries on his person but surprisingly enough there is no eye-witness from the jail staff in the instant case which in the ordinary course must have been attracted to the scene of occurrence immediately. This fact makes the prosecution story doubtful. There is another aspect which has to be seen and it relates to the place of occurrence. According to the eye-witnesses, when they reached the place of occurrence they saw two accused holding Muhammad Hussain deceased while the remaining three, including the approver, were inflicting knife blows to him and that the deceased fell in the verandah. It is correct that the blood-stained earth was collected from inside the room as well as from the verandah but the statement of Nazar Muhammad (P.W.7) Head Warder would show that he found the dead body lying inside room No,1 and it was he who arranged the removal of the same from the place of ocurrence and got it placed near the inner side of the main gate. This fact belies all the eye-witnesses of this case. The medical officer found two injuries i.e, injuries Nos. 6 and 13 on the person of the deceased individually fatal. If the deceased had been caused injuries inside the room then he must have fallen there and there was no need to bring him out of the said room so as to make it visible to other inmates of the jail. The presence of bloodstains inside the room indicate that the occurrence took place there and not outside the verandah as stated by the eye-witnesses. It appears that the story of bringing out the deceased from the said room by giving him support has been concocted only to make it possible for the eye-witnesses to see the occurrence. In any case, as stated above, P.W.7 Nazar Muhammad has clearly stated that the dead body was lying inside the room. We also find that the story that the accused climbed the roof of the hospital after the occurrence is improbable. There was no need for the three accused to make themselves prominent after the occurrence by climbing up the roof of Jail hospital. There was also no need for them to throw brickbats on the eye-witnesses from that place. In any case, the story that the three accused went up the roof of the hospital is belied by the contents of the F.I.R. Wherein it was stated that all the five accused had gone up the said roof. This contradiction is material. There is another aspect or the case which needs consideration. In the site-plan prepared by Abdul Aziz (P.W.2) Exh.P.A.1, there is indication of path on which the dead body had been dragged and taken to Deorhi. The story of dragging of the dead body is not supported by the eye-witnesses. Secondly, the medical officer, at the time of post-mortem examination, did not find any drag marks, but in spite of that it is a fact that immediately after the occurrence, when the site-plan was prepared the witnesses pointed out the passage where the dead body of the deceased had been dragged. This story appears to have been suppressed at a later stage of the investigation and also during the trial, which casts doubt on the prosecution case.
27. ' The prosecution case regarding conspiracy to murder is also not believable. According to P.W.10 Muhammad Ashraf, he recorded the name of Habibullah accused in Register Exh.P.O.O. For interview with Muhammad Sharif alias Jagga. This register was meant for use outside the Jail main gate. Another register Exh.D.C. Which was maintained in the Deorhi for recording inverviews contradicts the entry Exh.P.O.O. According to the entry Exh.DC, the interview of Habibullah accused with Muhammad Shari! Alias Jagga approver was disallowed. We have seen this register and find that another line was inserted therein with a different ink and different handwriting to show that Habibullah had interviewed Jagga approver, These entries being doubtful provide no corroboration to the ocular account. Secondly, even if it is accepted that on 19-7-1963 i.e, two days before the occurrence Habibullah had an interview with Muhammad Sharif then also the story of Jagga (approver) stands belied, because according to his statement he had interviewed Habibullah, Sanaullah etc. Four persons. In case only Habibullah had an interview with Muhammad Sharif approver then the prosecution case that the three knives were supplied to Muhammad Sharif alias Jagga (approver) by Habibullah and his three companions on 19-7-1963 stands falsified. There is thus no evidence to corroborate that the knives were supplied by Habibullah etc. Accused to Muhammad Sharif.
28. ' Coming now to the recoveries of crime weapons, it will be noted that the knife P.4 was got recovered by Abdul Sattar alias Boots accused from beneath the heap of wood lying inside the locked wood godown. Abdul Sattar did not have the keys of the said go down. He was lodged in the jail as an under-trial. Admittedly, the keys of the godown were with the go down-keeper. The prosecution has failed to prove as to how Abdul Sattar had placed knife P.4 inside the locked go down, beneath the heap of wood. The recovery at the instance of Muhammad Hussain alias Sain was made from an open place accessible to all. Knife P.5 was alleged to be lying buried, according to Muhammad Barkhurdar (P.W.11), in the ground and according to Tafazil Hussain (P.W.12) in a heap of clay lying on the ground. In view of the above, it cannot be said that the knives P.9 and P.5 were, respectively recovered from the possession of Abdul Sattar and Muhammad Hussain accused. Moreover, Miraj Din (P.W.21) stated during the trial that he had signed the memos. Inside the Deorhi and not at the spot. In view of the above, we find that the recoveries of these knives do not G provide any corroboration to the ocular account.
29. ' So far as the blood-stained clothes from the three accused are concerned, it may be pointed out that these accused were inmates of jail and as explained in defence, they were asked to lift the dead body from the place of occurrence to the Deorhi and their clothes got bloodstained in that process. Secondly, Muhammad Hussain and Kashmira Singh were also found to be having incised wounds on their persons. Even if they were not asked to take the dead body from the place of occurrence to a place near the Deorhi then also the injuries on the person of Muhammad Hussain and Kashmira could cause their clothes stained with blood. The other accused being their companions might have got stains of blood on their own clothes from Muhammad Hussain and Kashmira. Thus the recovery of these clothes also does not provide any corroboration to the ocular account.
30. ' According to Raja Muhammad Barkhurdar (P.W.11) Superintendent Jail, Muhammad Hussain and Kashmira Singh were injured and they were got medically examined by him from the Jail medical officer. He tendered their medico-legal certificates Exh.P.Z.Z. And Exh.P.A.A., respectively. As stated above, these injuries had been caused by some sharp-edged weapon. Nb one of the witnesses or the jail staff has explained these injuries on their persons which make the prosecution case doubtful.
31. ' In this appeal against acquittal, which is coming up for disposal after about 16/17 years of the passing of the impugned judgment, we find that the trial Court did not violate any provision of law nor any material fact during appraisal of evidence was ignored and nor the conclusion drawn by the learned trial Judge suffered from any patent error or exception. In this view of the matter, this Court will always be reluctant to interfere in an order of acquittal. Reliance in this behalf is placed on Mian Saeed Baghdad and others v. Said Mian and another 1983 SCMR 117 and also on Bakhat Bedar v. The State 1982 SC MR 420.
9. In view of the above discussions, we find no merit in this appeal which is accordingly dismissed.