Zafar appellant was tried under section 302, P. P. C. and convicted under section 304, Part II, P. P. C. and sentenced to live years' R. I. by the learned Additional Sessions Judge, Lahore vide impugned judgment dated 26-7-1967. The appellant has filed this appeal against his conviction and sentence.
2. Briefly, the facts of the case are that on 2-4-1966 at about 8 or 9 a.m. Mst. Isman Bibi daughter of Mst. Niamatc P. W. had gone to wash her clothes. Mst. Aisha Bibi, mother of
(1) 1970 S CM R 172
(1) A 1 R 1931 Lah. 132 (3) PLD 1955 FC 42
(1) PLD 1964 Kar. 187
(3) PLD 1967 Kar. 791
(1) PL D 1963 SC 109
[I] PLD 1970 SC 335
2. PL D 1957 Lah. 332
3. /. S. Dover v. Iqbal Qadir and another PLD 1962 Pesh.
4. PL D 1967 SC 317
5. 1924 Cr. L J 298 (2) PLD 1966 Dacca 508
(3) PLD 1966 SC 658 (4) PLD 1967 SC 340
6. PLD 1965 SC 366
7. PLD 1961 Lah. 24 (2) PLD 1965 Quetta 15
8. PLD 1963 Kar. 348 (2) PLD 1962 Dacca 334
(3) PLD 1964 Dacca 420
9. have gone through the evidence of the complainant as well as of the witnesses and I am unable to come to a conclusion contrary to what the learned Magistrate had reached. The first report as has been reproduced above gave an indication that the applicant herself was not an eye-witness. Even in the statement recorded under section 202 no such claim was made. It is further supported by the statement of Khalil Ahmad who stated that on 23-2-1968 at about 6-30 a.m. he had seen the respondent taking away the bamboos from the hut of the applicant and he had accordingly informed her. So far Muhammad Ramzan is concerned he simply stated that at 6- 30 a.m. the applicant came to her and informed him that the bamboos had been stolen and he advised her to lodge the report. His evidence does not show that the names of the culprits were disclosed to him. Even the names of the witnesses were not mentioned in the first report.
Furthermore according to the applicant theft had been committed during the night hours while according to Khalil Ahmed the theft was committed in the morning. There is also dispute between the
10. So far as the other appellants are concerned, the recovery from Bashir Ahmad was made on the very day of his arrest and it appears from the receipts executed by Rustam, Jalal and Shabbir Ahmed that they disposed of the stolen articles a couple of days after the occurrence. Therefore, a .strong presumption arises against them with regard to their criminality under clause (a) of section 114 of the Evidence Act. They have not claimed this property to be their own. They have offered no explanation for the possession of that property. The evidence of
11. PLD 1964 Kar. 34 the appellant, was present at the oven and started quarrelling with Mst. Istnan Bibi. On hearing the noise, Mst. Niamate P. W. came out of her house and told Mst. Aisha Bibi not to tease them as they were very poor people but Mst. Aisha continued abusing them and left towards her house. Bagh Ali son of Mst. Aisha Bibi also told her not to quarrel but her husband, Khushi Muhammad, started abusing Mst. Niamate but he was stopped by Shah Muhammad and Khushi Muhammad, residents of village Kandu Khara. In the meantime, Zafar appellant came armed with a dang. Mst. Niamate and her mother Mst. Sattan, who had come about eight or ten days prior to the occurrence, from Chak No. 4/I-L, Police Station Renala for meeting were present in the courtyard near the wall when Zafar appellant gave a blow with the dang which hit Mst. Sattan on her head and she fell to the ground. The blood started coming out of her head and she became unconscious. The appellant ran away. The occurrence was also witnessed by Shah Muhammad and Khushi Muhammad P. Ws.
The motive alleged is that Mst. Niamate P. W. was not agreed to give the hand of her daughter Mst.
Israan to the appellant and had instead engaged her with her brother's son, Ahmad Din.
Mst. Sattan was then taken to Hospital at Pattoki, where she was admitted and obtained the medical certificate. Mst. Niamate came to Police Station Chunian and lodged the F. I. R. (Exh. P. C.) on 3-4-1966, at 9-40 a.m. at a distance of 5% miles from Mauza Kandu Khara, which was recorded by S. I. Muhammad Siddique (P. W. 12).
After recording the F. I. R., the S. I. first went to Pattoki Civil Hospital and wrote a ruqqa (Exh. P. F.) enquiring from the doctor if Mst. Sattan was in a fit condition to make a statement and the reply of the doctor which was in the negative, is Exh. P. F/I. The S. 1. then went to the spot and from there took into possession blood-stained earth and made it into a sealed parcel vide memo. Exh P. D. The S. I. got ruqqa (Exh. P. G.) about the death of Mst. Sattan and he then proceeded to the hospital and prepared the injury statement (Exh. P. H.) and the inquest report (Exh. P. J.) in respect of Mst. Sattan deceased and sent the dead body for post-mortem examination under the escort ofF. C. Nur Husain (P. W. 5). On 3-4-1966, the Sub-Inspector arrested the appellant who produced the dang (P.
4) which the S. I. took into possession tide memo. Exh. P. E. He also got prepared site plan (Exh. P. B.) from Abdul Aziz, Draftsman (P. W. 7). The case was originally registered under section 307, P. P. C. but on receipt of the ruqqa from the doctor, the oll'ence was changed to one under section 302, P.
P. C.
2. Dr. Abdul Khaliq P. W. 2 on 2-4-1966 at 7-30 p.m. medically examined Mst. Sattan and found the following injury on her person :-- One contused wound 1 f" x x 1 j(x" on the top of the head. The injury was caused by a blunt weapon and was kept under observation. The patient expired on 3-4-1966 at 3 p.m.
3. On 4-4-1966, Dr. Haji Fazal Ilahi Shah Chishti (P. W. 1) performed the post-mortem examination on the dead body of Mst. Sattan and on external examination he observed that the dead body was of an old woman, weak constitution, rigor mortis present over legs but absent over upper extremitis. Post mortem staining in lower abdomen and both flanks. The doctor found the following three injuries:
(1) A stitched wound 2Y long over top of head 6' above right ear.
(2) An abrasion, x " over nose.
(3) An abrasion, J" below left lower lid, lj-'x J".
The doctor also observed extensive haemorrhage below the scalp. There was fracture of right and left parietal bone. The line of fracture extended from below the wound to the right and left ending into temporal region. Base of skull had double fracture. A thick clot of blood 5" x 4" pressing over the right parieto-temporal lobes of brain and also a blood clot 3" x 2" over the left temporal region.
Brain was lacerated. There was clotted blood in the right vertical of the heart. The bladder was empty. All other organs were healthy.
Death in the opinion of the doctor was due to shock and haemorrhage caused as a result of assault by blunt weapon like a dang with a heavy iron and resulting into multiple fracture of the skull bones, extensive intra-cranial haemorrhage with a laceration of brain substance. Injury No. 1 over the head was fatal under ordinary course of nature and was sufficient to cause death. Injuries Nos. 2 and 3 were simple and could be due to fall. Time between injury and death was about 30 hours and between death and post-mortem examination was 25 to 28 hours.
4. The learned Additional Sessions Judge has convicted and sentenced the appellant on the testimony of Mst. Niamate (P. W. 9) and on the statements of Shah Muhammad and Khushi Muhammad recorded by the committing Magistrate, which were transferred to the Sessions file under section 288, Cr. P. C.
5. The appellant before the committing Magistrate when examined under section 342, Cr. P. C. denied all the allegations against him and stated that he would make, a detailed statement in the Sessions Court. At the trial also he denied the allegations against hint and stated that he heard that Mst. Aisha Bibi, Mst. Isrnan Bibi, and Mst. Niamate had quarrelled. He was not present there. In answer to a question as to why this case against him, he stated that he abused Shah Muhammad and Mst. Niamate as they wanted to marry each other and because of this enmity they have involved him in this case falsely. He did not produce any defence.
6. I have heard the learned counsel for the appellant as well as the learned counsel appearing for the State and have gone through the xecord of this case. Learned counsel for the appellant has contended that Shah Muhammad and Khushi Muhammad eye witnesses, are chance witnesses as they are inter-related. Shah Muhammad P. W. wanted to marry Mst. Niamate P. W. 9 and this marriage was objected to by the appellant, that Mst. Niamate has not stated at the trial that Shah Muhammad and Khushi Muhammad P. Ws. are eye-witnesses of the occurrence and their statements made before the C. M. which were transferred to the Sessions file could not be acted upon and that there was a delay of 24 hours in lodging the report.
8, Mst. Niamate (P. W. 9) has deposed about the occurrence and has stated that the appellant came there with a dang and gave a blow to Mst. Sattan deceased on her head as a result of which she fell down and started bleeding and the occurrence was witnessed by Lai, Chawla, Jabbar, Bagh Ali and Khushi Muhammad, husband of Mst. Aisha, that it was Eid day and about 400/500 people gathered there but in cross-examination she has admitted that she had engaged her daughter to a son of his brother instead of the appellant and further that one day after the occurrence, the marriage of Zafar appellant was to take place. She has also admitted that Khushi Muhammad and Shah Muhammad reside in village Kot which is at a distance of 2/3 miles from village Kandu Khara and that Shah Muhammad wanted to marry her. She was also admitted that Chawla was an eye-witness of the occurrence but he was never produced at the trial. This witness was declared hostile and was cross-examined by the Public Prosecutor and her statement recorded by the C. M. was transferred under section 288, Cr. P. C. to the Sessions file. I have also gone through the statement of this witness made before the committing Court and I find that there she had admitted that she had not mentioned the name of Chawla in the F. I. R. and that she cannot say whether Shah Muhammad P. W. intended to marry her. The statement of this witness is full of discrepancies and 1 am not going to place any reliance on her testimony.
Regarding Shah Muhammad and Khushi Muhammad P. Ws. whose statements before the C. M. have been relied upon by the learned Addl. Sessions Judge have admitted that they reside at a distance of 3/4 miles from village Kandu Khara. Shah Muhammad P. W. has also admitted that Khushi Muhammad P. W. cultivated his land and many people had already gathered at the place of occurrence. When he reached there people were shouting that Zafar appellant had assaulted Mst. Sattan. He has also admitted that he could see many people in between the place of occurrence and the place where he was standing and that he was on visiting terms with Mst.
Niamate. Khushi Muhammad P. W. has stated before the C. M. that he suddenly heard that Zafar appellant had killed Mst. Sattan and in cross- examination he admitted that Bagh Ali had hurled his danda towards the place where Mst. Niamate P. W. and Mst. Sattan were standing. At the trial Shah Muhammad P. W. admitted in cross-examination that he heard it from others that Zafar appellant injured Mst. Sattan and Mst. Niamate is a widow and he wanted to marry her and that he had been visiting her and the appellant objected to his visits.
11. It is well-settled principle of law that if a statement made during commitment inquiry is repudiated at the trial, its evidentiary value is certainly not enhanced but is definitely lowered as amongst other things it is the statement of a person who in view of his conduct cannot be credited with any scruples for truth and integrity. 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 result 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.
12. The upshot of the discussion above, therefore, is that the prosecution has failed to bring home the guilt to the accused and giving the benefit of doubt, I accept this appeal and set aside the conviction and sentence of the appellant and acquit him of the charge. He shall be released forthwith provided he is not required in any other case. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.