This is a petition under section 215 read with section 561/A. Cr. P. C. Filed by Mehraj Din and Muhammad Nazir, two of the three accused persons in a case of murder having been committed to stand trial vide the impugned order dated the 23rd of February 1972, now sought to be quashed.
Abdullah, the third accused absconded and is still at large.
2. The case was registered on an application Exh. P. G., dated the 15th January 1970, which was addressed to the Deputy Inspector-General of Police, Lahore Range, by Yasoob-ul---Hassan P. W.
10, brother of Mahfooz Ahmad deceased. The facts alleged therein briefly were that Yasoob-ul- Hassan complainant and his brother Mahfooz Ahmad deceased were engaged in cement business and shared the same house where their parents and other members of their family also lived. On the 11th of January 1970, they had invited some guests to dinner. At about 5 p.m. Mahfooz Ahmad left the house in the company of one Junaid Ali of Bilal Ganj, also mentioned as Junaid Tahir, to inform Yosuf Shah, a resident of Cooper Road, who later turned an approver, that he would not be 'able to keep his appointment with him and would see him after t P.M. At about 5-30 p.m.
Mahfooz Ahmad deceased and Junaid Tahir both returned to the house. At 7-30 p.m. Yusuf Shah came to their house and called out the deceased. One of the guests Saadat Ali Shah P. W. Came out, met Yusuf Shah and conveyed his message to .The deceased that he was wanted outside. At about 7-45 p.m., when he got free from the dinner the deceased put on his suit and wrist-watch and demanded a sum of Rs. 1.000 from his brother Yasoob-ul---Hassan complainant on the pretext that the money was needed for business purposes. The latter gave him ten currency notes of the denomination of Rs. 100 each. The deceased then left the house with Junaid Tahir and never returned. Next morning at about 8-30 a.m. One Muhammad Ishaq Bhatti P. W. 24, informed the complainant at his house that the dead body of his brother was lying on the slope near Badshahi Mosque. He at once rushed to the spot and found that the police was already present there. The body showed no apparent sign of violence nor did the clothes give any indication of struggle. The wrist--watch was missing and only eighteen rupees were recovered from his pocket. The body was sent for post-mortem examina--tion. The viscera were sent by the doctor for chemical examina-- tion. In the meantime, Yusuf Shah disappeared. The police declined to register a case till the receipt of the report of the Chemical Examiner. Yasoob-ul-Hassan then submitted application Exh. P. G. To the Deputy Inspector-General of Police for registration and investigation of the case. It was alleged therein by Yasoob-ul-Hassan that he suspected foul-play it being a case of unnatural death, that 3/4 months earlier the deceased had expressed apprehension of danger to his life, at the hands of Miraj Din petitioner, whereupon his brother Ayub-ul-Hassan P. W. Had lodged report Exh. D. C. At Police Post Lytton Road. Surprisingly enough, the casus belli mentioned in the report was business rivalry with Miraj Din. Consequently, the case was formally registered at Police Station Tibbi, on the 17th of January 1970. The Chemical Examiner's report Exh. P. D. Was not available till the 20th of January 1970. Alcohol was detected in the stomach, intestines and kidney etc. Of the deceased. It appears that a second post-mortem examination was held by a Medical Board consisting of three doctors who had also purused the report of the Bacteriologist on the examina--tion of tests of the deceased, vide its report Exh. P. E. Dated the 21st of February 1970, the Board opined that death had occurred due to alcohol and that the possibility of asphyxia also could not be ruled out as a contributory factor.
3. The police succeeded in tracing out Yusuf Shah. He was produced before a Magistrate, who recorded his confessional statement Exh. P. B. Under section 164, Cr. P. C. On the 3rd of February 1970. He stated therein that he was a licensed driver and got a job in Mah-e-Nau Pictures. He became friendly with Nazir petitioner who lived close to the Pictures. Abdullah absconder was a servant of Nazir. Nazir told him that he wanted to murder Mohfooz Ahmad deceased as he intended to disgrace his uncle's daughter. The approver agreed to help him. On the evening of the night of occurrence Nazir took the approver to the shop of his uncle Miraj Din petitioner and introduced him. Miraj Din allegedly suggested a rather unusual modus operandi that they should manage to get the deceased run over by a vehicle. With this object in view a vehicle was purchased from one Ghulam Nabi P. W. 26, for a sum of Rs. 4,100 by Miraj Din petitioner, but it-was registered in the name of his nephew Nazir. Miraj Din petitioner allegedly told him (the approver) that Mahfooz Ahmad deceased often used to visit red--light area in Hira Mandi and could 'be killed there. Having failed to carry out this design Miraj Din suggested that the approver should try to contract friendship with the deceased, whereupon the approver started visiting him and became friendly with him. The deceased who appeared to be a romantic person once suggested to him that he was enamoured of dancing girl Farida P. W. And that she should be enticed away. It was ostensibly in connection with this errand that the approver called out the deceased on the pretext of going to the house of Farida. The deceased informed the approver that once he had received some guests he would not be able to keep his appointment and would turn up at about 7 p.m. The petitioners had conspired with the approver that the deceased would be first administered alcohol.
Miraj Din also gave him some barbitone pills, a sporofic drug, which was to be mixed in wine which had already been procured. Having in vain waited for the arrival of the deceased, the approver was sent to fetch him. He took him in the house of Nazir where they had decided to take liquor of which two pegs containing the drug were given to the deceased who got intoxicated. Abdullah then caught hold of the deceased from the neck placing one hand on his mouth. The approver held him by the nose and gave him fist blows on the temporal region. The deceased became unconscious.
Miraj Din who stood outside the hotel was called and then all of them killed him. Currency notes of the value of Rs. 1,000 and the wrist-watch were removed from his person by Nazir. The remaining liquor contained in a bottle was put in the pocket of the deceased. Then all the four put the dead body in a car and took him to Badshahi Mosque. As they reached the rear of Badshahi Mosque one of the tyres of the car became flat. Accordingly, they threw the dead body near a heap of filth and brought the punctured car to Chowk Bhati. Miraj Din left for his house while the approver spent the night with Abdullah absconder. Next morning Nazir gave the latter Rs. 160 and told him to disappear. At the instance of Miraj Din, the approver took the car to Talib Workship in front of Ali Autos and some parts were removed.
3. In the course of investigation, the police was able to collect some material including some letters and photograph to show that the deceased had a love affair with Abida Kausar, daughter of Mlraj Din, which furnished the motive for the alleged murder.
4. The prosecution examined forty witnesses in support of its case during enquiry ofwhom Yusuf Shah, who had been tendered pardon under section 337, Cr. P. C. Was the most important. He however completely resiled from his previous statement and deposed that his confessional statement had been extorted by police under duress. There was also some evidence of recoveries including that of the wrist watch which was allegedly recovered from the house of Nazir, besides a pestle and mortar, a bed-sheet, an empty quarter bottle of wine. Junaid Tahir P. W. 3, stated that he accompanied the deceased to Cooper Roast. Ch. Abdul.1Careem P. W. 4, was the first person to see the dead body behind the Badshahi Mosque and reported the matter at Police Station Tibbi.
Nawab Din P. W. 11, uncle of the deceased stated that about six months prior to the occurrence Miraj Din petitioner and his wife sought his good offices for the restoration of a letter written by their daughter Abida Kausar to the deceased. Ayub-ul-Hassan another brother of the deceased, produced photo P. 10 of the deceased arm-in-arm with a girl stated to be Abida Kausar, daughter of Miraj Din, petitioner, and letter P. 12 purporting to have been written by her to the deceased.
5. In their statements under section 342, Cr. P. C. The petitioners denied the allegations and contrary to their under--taking in the first instance to produce Muhammad Hussain and Muhammad Shafi in their defence declined to do so.
6. The material brought on the record was considered by the learned Inquiry Magistrate sufficient to justify the inference of a prima facie case leading to the framing of charge and committal.
7. The principal contention raised on behalf of the petitioners before me was that it was a case of no evidence. It was argued that the approver having failed to support the prosecution, his earlier statement under section 164, Cr. P. C., recorded by the Magistrate was inadmissible inasmuch as it did not amount to substantive evidence. Reliance was placed in this regard on Yaroo v. The State (1969 P Cr. L J 15 0), Bahadur and another v. The State (1970 P Cr. L J 1104), Riaz Ahmad v. The State (PLD 1970 Lah. 689), Hari Ballav Shaha Roy v. Gopi Ballav Shaha (PLD 1959 SC (Pack.) 347and Bhuboni v. The King (PLD 1949PC90It was next submitted that the so-called evidence of recovery of wrist--watch was simply worthless inasmuch as even .If the three witnesses, namely, Ijaz Ahmad P.
W. 22, Nazir Ahmad P. W. 23 and Inspector Niaz Haider P. W. 40, were implicitly relied upon in this regard, in the absence of any detailed description of the witch in the initial report, its identity could not be established beyond reasonable doubt and as such the possibility of fabrication could not be excluded. Lastly, it was argued that the allegation of murder was not supported by medical evidence.
8. On the otherhand, it was contended by the learned counsel for the State supported by the learned counsel for the complainant that the material brought on the record was sufficient to justify an inference as to the existence of a prima facie case and as such the order of the learned Inquiry Magistrate was unexceptionable. It was argued that taking the most favourable position for the defence it could at best be characterized as a weak case for the prosecution based on inadequate evidence which could not be construed as a legal ground as envisaged by section 215, Cr. P. C. Justifying quashing of proceedings. Reliance was placed in this regard on Ghulam Shabbir v. The Crown (PLD 1954 Lah. 687), Muhammad Azam v. The State (1970 P Cr. L 1 1276) and Khera and others v. The Crown (PLD 1954 BJ130). Lastly, it was contended that the prosecution case could possibly improve at the trial by the examination of certain important witnesses as C. Ws. Or the reversion of the approver to his previous statement made under section 164, Cr. P. C.
9. Having considered the contentions raised by the learned counsel for the parties, I am clearly of the view that it cannot be held to be a case of no evidence so as to attract the provision contained in section 215, Cr. P. C. Although complete want of evidence has been held to be a legal ground in terms of the aforesaid provision, it is well settled that weakness of the prosecution case on account of inadequacy of evidence o otherwise is not a legal ground. As stated earlier, learned counsel for the petitioners tried to justify the invocation of section 215, Cr. P. C. On the grounds that the exclusion of the statement of the approver under section 164, Cr. P. C. From which he had completely resiled during inquiry would knock the bottom nut of the prosecution case; that the evidence of recoveries was unreliable; that the so-called love-letters allegedly written to the deceased by the daughter of Miraj Din petitioner were not legally proved to have been written by her. It was argued that as such it would be virtually a case of no evidence, the acquittal of the petitioner being a foregone conclusion.
9-A. Without attempting an appreciation of the evidence brought on the record which falls within the domain of the trial Court it may be observed that to start with we have on the record the earlier report Exh. D. C. Made by Ayub-ul-Hassan P. W. 12 brother of the deceased, at Police Post Lytton Road, Lahore, which contained a definite allegation that the deceased appre--hended danger to his life at the hands of Miraj Din petitioner. Although in the report the enmity was attributed to business rivalry yet the motive so alleged is neither very material nor otherwise incapable of explanation. For quite obvious reasons, the deceased or for that matter his brother Ayub-ul- Hassan would normally have avoided the embarrassment of a reference to the love affair between the former and the daughter of Miraj Din petitioner. Alternatively, it might not have been within the knowledge of Ayub-ul-Hassan and perhaps the deceased had no taken him into confidence. The recovery of the photo Exh. P. 10 wherein the deceased was found to be sitting arm-in-arm with Abida Kausar, daughter of Miraj Din petitioner, as also that of letter Exh. P. 12 purporting to have been written by her, considered in the light of the statement of Nawab Din P. W. 11, uncle of the deceased, who stated that six months prior to the occurrence Miraj Din and his wife had approached him to use his good offices in the restoration of the letter, would prima fade furnish sufficient material on the point of motive. According to the report of Mr. Qamar Ahmad Bhatti, Handwriting Expert, the letter Exh. P. 12 and the writing on the exercise book allegedly recovered from the house of Miraj Din purporting to be those of his daughter was in the same hand. Then we have the statement of Junaid Tahir P. W. 3, Who had met Yusuf Shah approver and Nazir petitioner in the company of the deceased a couple of hours before the latter undertook his last journey.
According to him, the deceased informed him that he would not be able to keep his appointment and would see them after 7 p.m. We have also the evidence of other recoveries some of which not only appear to be quite relevant but lend support to the appro--ver's statement under section 164, Cr. P. C. And prima facie have some incriminating force. Then there is the final report of the Medical Board which tends to show that death had occurred due to alcohol and that the possibility of asphxia as a contributory factor could not be ruled out either. Lastly, the circumstances of the abscondence of Abdullah, named by the approver, as one of the culprits also imparts a colour of veracity to his statement. The confessional statement of Yusuf Shah approver was recorded by Mr. C. J. Pervaiz, Magistrate 1st Class P. W.
32. He stated that he had explained to the approver that he was under no obligation to make confessional statement which could be used against him. At this stage it is to be presumed that the statement was recorded in accordance with the legal requirements contained in section 164, Cr. P. C.
10. Thus it is abundantly clear to me whatever might other--wise be the evidentiary value of the material collected by the police in the course of investigation and regardless of the weakness of the prosecution case or the optimism of the defence about the acquittal of the accused at the trial it can by no means be suggest--ed with any amount of reasonableness that it is a case of no evidence. As, stated earlier, insufficiency or weakness of evidence cannot be construed as a legal ground in terms of section 215, Cr. P. C. As held in a chain of authorities. To quote only a few references may be made to Maroti Jairam v. Emperor (AIR 1935 Nag. 202), Hassan Din v. Emperor (AIR 1931 Lah. 467), Francis Xaviev Ferandes v. Emperor (AIR 1936 Sind. 3) and Emperor v. Waroo and another (AIR 1938 Sind 79).
11. It now remains to consider the authorities relied upon by the learned counsel for the parties. In support of the contention that the statement of an approver under section 164, Cr. P. C. Did not constitute substantive evidence, the first authority relied upon by the learned counsel for the petitioners was Bhuboni Sahu v. The King (AIR 1949 P C 257). It was held by their Lordships that although the statement of an approver under section 164, Cr. P. C. Stood on a better footing than the confes--sional statement of co-accused relevant under section 30 of the Evidence Act, yet it could not be used as substantive evidence of the facts stated but could however, be employed to support or challenge evidence given in Court by the person who made the statement. It was further held that while it was not illegal to act on the uncorroborated evidence of an accomplice it was a rule of prudence amounting almost to a rule of law by its universal adop--tion that it was unsafe to act upon the evidence of an accomplice unless it was corroborated in material particulars. It was further observed that an accomplice could not corroborate himself at tainted evidence did not lose its taint by repetition.
The next case is a D. B. Authority Yaqoo v. The State. It was a case of retracted confession by a single accused. The two eye-witnesses whose statements had been recorded under sec--tion 164, Cr. P. C. Made some concessions during inquiry. It appears that the learned trial Judge had used the statements of the witnesses recorded under section 164, Cr. P. C. As substantive evidence which was disapproved on the basis of the following observations made in Brig. Bhushan Singh v. The Emperor (AIR 1946 P C 38): "A perusal, however, of the whole, of the judgment makes it apparent, in their Lordships' view, that the statements were used as substantive evidence and it was for this reason that the appeal to His Majesty-in-Council was admitted. The learned Judges discussed in great detail the statements made by Haliman and Mahabir under section 164, and gave reasons for accepting the facts, or most of the facts, deposed to in those statements, in preference to the evidence given by the witnesses in Court, which in no way helped the prosecution. This was an improper use of such statements. A statement under section 164, can be used to cross-examine the person who made it, and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated out of Court under section 164, is true."
The next authority pressed into service is Hari Ballav Shaha Roy v. Gopi Ballav Shaha etc. In this authority, their Lordships ; examined considerable case-law. A reference may be made in this regard to the following quotation from Ramachandra Babaji Gorre v. Emperor (I L R 59 Bom. 125) which was a Full Bench decision:---- "If the Magistrate comes to the conclusion that there is evidence to be weighed, he ought to commit the accused for trial, and he ought not to discharge the accused merely because he thinks that if he were to try the case himself he would not be prepared to convict the accused on the evidence before him."
Reference was also made to a decision of the Allahabad High Court quoted as Akbar Ali v. Rai Bahadur and others (AIR 1925 All. 670) The precise observation in point made by Suleman, J. Was as follows : "The expression 'not sufficient ground for committing the accused' is quite different from the expression as the 'case not proved' or 'the accused are innocent'."
After a review of the relevant authorities, it was held by their Lordships that a preliminary inquiry was obviously meant to eliminate false and frivolous cases causing avoidable harassment and expense to innocent persons besides occupying the time of the Court as clearly evidenced by the mandatory provision contained in section 209, Cr. P. C. Making it incumbent on the Inquiry Magistrate to discharge an accused if sufficient grounds for com--mittal were not available. From this it was inferred that the Magistrate had necessarily to appreciate the evidence in order to determine the sufficiency or otherwise of grounds for committal. It was observed that no hard and fast rule could be laid down. The test laid down by their Lordships as a safe guide in this regard was that If on the evidence, the Magistrate comes to the conclusion that the matter is not free from doubt and conviction being improbable and yet he cannot safely rule out its possibility, he should commit the accused for trial. If, however, on the other hand, he comes to the conclusion that no Court could reasonably be expected to con--vict the accused he should discharge him. Their Lordships also referred to some borderline cases and realising the difficulty in the precise definition of the "limits" left the matter to be decided on the facts and circumstances of each case.
The same view was followed in Riaz A ma v. The State.
12. There can be hardly any doubt as to the correctness of the well-settled proposition that a statement made under section 164, Cr. P. C. Does not constitute substantive evidence and can be used to corroborate or challenge an earlier statement under section 157 of the Evidence Act.
Learned counsel for the petitioners was at pains to show that once the approver's statement Exh. P.
B recorded under section 164, Cr. P. C. Was excluded the acquittal of the accused would be a foregone conclusion. On the other hand, it was clearly held in Ghulam Shabbir v. The Crown (PLD 1954 Lah. 607) by M. Munir, C.. J., as he then was, that if an approver had been examined under subsection (2) of section 337, Cr. P. C. Though he may have resiled from his previous statement the accused must be committed to stand trial if the Magistrate were of the opinion that there was reasonable ground for believing that the accused was guilty of the offence. In the case before his Lordship, there were two approvers instead of one, and both com--pletely went back before the committing Magistrate on their pre--vious statements recorded under section 164, Cr. P. C. The Public Prosecutor made a rather unusual statement before the Inquiry Magistrate that since the offence of murder had not been proved owing to the unfavourable statement of the approvers the case may be decided on the evidence on the record, instead of be--ing committed, by the Magistrate himself. The Magistrate accepting the advice of the Public Prosecutor proceeded with the trial, It was held that the trial was without jurisdiction. In the instant case, as mentioned earlier, forty prosecution witnesses were examined during inquiry and this material, in the opinion of the Magistrate, justified the order of committal.
13. In Ifrikhar-ud-Din v. The Crown (PLD 1955 Lah. 375), which is not directly in point, the view taken was that although the statement of an approver who accepts pardon under section 337, Cr. P. C. Is essentially the result of inducement and promise initiated by the police, it is not hit by the provision contained in section 24 of the Evidence Act inasmuch as it is not being used as a confession but as a piece of evidence against other accused. It was further held that such a statement would not be inadmis--sible on the ground that it was not recorded in terms of sec--tion 164, Cr. P. C. Shabir Ahmad, J. Who delivered the judgment observed as follows :- "I have no doubt in my mind that in order to determine whether or not non-compliance with any provision of law made a statement inadmissible, one should look to the circumstances as they existed at the time when that statement was made, and if that statement did not require a thing to be done which it was necessary to do if that statement were made under some other circumstances, the non-compliance with a provision of law which would have been applicable if those other circumstances existed cannot make the statement inadmissible."
14. In Mst. Fazlan v. The Crown (PLD 1956 FC 7) although the case related to the trial of Mst. Fazlan appellant who initially having accepted pardon under section 337, Cr. P. C. Resiled from her statement it wag held that her statement under section 164, Criminal Procedure Code was inadmissible against her own trial after forfeiture of pardon. The relevant observations read as follows:---- "When the person who made the statement is himself an accused person in the case, the statement, if self-incriminatory can only be proved against him, if it is relevant, under the law of evidence. In other words, it must be proved to be voluntary, and from the technical point of view, it must be recorded in the form prescribed for the purpose viz., by section 364, Criminal P. C. Read with section 164, Criminal P. C. As a previous statement it can be used only for contradiction or corrobora--tion, which in the case of an accused person in Pakistan, who is not a competent witness, is not possible. It has been seen that the provisions of sections 32 and 33, Evidence Act, are not available to render a statement of the present kind admissible in evidence. Therefore, such a statement is under the general law not admissible in evidence at all."
Towards conclusion it was observed: "We are satisfied that the correct view is that the words 'the statement' in section 339, subsection
(2) Criminal P. C. Refer to either the statement of the approver before the committing Magistrate, or his statement at the trial, or to both. They can--not, in our view, be stretched to include any statement made by the approver in the course of the investigation. On this ground, we hold the statement of Mst. Fazlan under section 164, Cri--minal P. C. To be inadmissible. When the statement is eliminat--ed, the evidence become altogether insubstantial and wholly insufficient to sustain the conviction, so that the accused person becomes entitled to acquittal."
The position in the instant case is obviously distinguishable.
15. Having carefully considered the facts and circumstances of the case in the light of the relevant authorities, I am clearly of the view that judged by the criteria laid down therein the inadmissibility of the statement of the approver as substantive evidence notwithstanding, the committal of the petitioners is unexception--able. The petition, therefore, fails and is hereby dismissed.