MUHAMMAD MUNIR FAROOQI, J.---Sarfraz son of Allah Ditta, aged 20 years, was tried for the murder of his uncle Ibrahim by the learned Sessions .Fudge, Layallpur, who found him guilty and convicting him under section 302, V P. C. On 8th November 1969, he sentenced him to death and has for--warded the record to this Court under the provisions of section 374 of the Criminal Procedure Code for confirmation of the dearth sentence, while the correctness of the conviction itself has been questioned by the appellant and both these matters i.e. The reference and the appeal are being disposed of by this judgment.
The occurrence involving the death of Ibrahim (deceased) took place on he night between 7th and 8th March 1969, at about 10/11 p. m. In the area of Chak No. 186/R B on account of his interference with the carnal affairs of Sarfraz appellant with Mukhtar, a young boy of the village, as reported to the police by Khan Muhammad (P. W. 6) vide Exh. P. A. At 4-30 a, m. During the same night at Police Station Chak Jhumra.
3. Ibrahim (deceased) was the uterine brother of Allah Ditta, the father of Sarfraz appellant. He was an old man of about 60 years of age, who used to live at the dhari in Killa No. 13 of Square No. 14 of this Chak to look after their cattle, where aforesaid Mukhtar used to visit Sarfraz appel--lant frequently to prosecute his clandestine relations with him, which were looked upon with suspicion by Ibrahim (deceased).
4. On the day preceding the night of his murder Ibrahim (deceased) told Sarfraz appellant at rotiwela that he was committing sodomy with Mukhtar, so he should not allow him to come at the dhari, which offended him and they altercated over it with each other in the presence of Khan Muhammad (P. W. 6) and the other Khan Muhammad son of Taj Din (P. W. 7), who intervened and separated them. Sarfraz appellant left the place threatening Ibrahim (deceased) with dire consequences, which he is said to have put through in the late hours of the same evening.
5. It is alleged that on the eventful night Ibrahim (deceased) was lying on a cot at his dhari while Khan Muhammad (P. W. 6), Khan Muhammad son of Taj Din (P. W. 7), and Sardar Muhammad (P. W.
8) were smoking huqqa and talking to each other sitting on the other cot besides. At about 10/11 p. m. Sarfraz appellant quietly came up and inflicting a violent blow with a toka on the head of Ibrahim (deceased) slipped away from the spot. The aforesaid witnesses gave him a chase, but he succeeded in making good his escape. On returning to the spot they found Ibrahim dead and leaving the others there Khan Muhammad (P. W. 6) went to the police station and lodged his report Exh. P. A. With Muhammad Ata Ullah Khan, Moharrir Assistant Sub-Inspector, who sent a copy of the same through Foot Cons--table Rashid-Ahmad (P. W. 2) to Hamid Ullah S. H. O. (P. W. 12).
Sub-Inspector Hamid Ullah P. W. Was present in Burj Mandi and on receipt of this information proceeded to the spot along with Foot Constable Rashid Ahmad and reaching there at 9-0 a. m. He despatched the dead body of Ibrahim to the mortuary after the preparation of necessary injury statement Exh. P. G. And inquest report Exh. P. H. During the inspection of the spot he took into possession khes (P. 1), pillow (P. 2), mat (P. 3), blanket (P. 4), quilt (P. 5) alt blood-stained. Along with cot (P. 6) vide Exh. P. B. Foot Constable Rashid Ahmad brought back blood-stained shirt (P. 8) and chadar (P.9) of Ibrahim (deceased) from the mortuary and produced them before the Sub- Inspector vide Exh. P. F. He got prepared the site-plan Exh. P. D. With its duplicate Exh. P. D./I from Tufail Muhammad Patwari (P. W. 4) and put--ting his notes with read ink signed it in token of its correctness. Sultan Ahmad Khan. Sub-Inspector (P. W. 11) arrested Sarfraz appellant on the 37th of March 1969 when he is said to have led to the recovery of blood--stained toka (P. 7) from the field of Ghulam Rasool in Killa No. 13 of Square No. 13 of his village. The toka was sealed into a parcel vide Exh. P. C. And Exh. P. C./1 is the rough site-plan of the plate of recovery. The Sub---Inspector deposited the toka with Moharrir Assistant Sub-Inspector for safe custody in the Malkhana, who in his turn despatched it to the office of the Chemical Examiner on 7th April 1969 through Rashid Ahmad Foot Con--stable (P. W. 2). It was found stained with blood vide report Exh. P. J. Of the Chemical Examiner, who sent the scrapings to the Serologist at Islamabad for the analysis as to the origin of the blood, but his report has not been placed on the record by the prosecution.
6. Dr. Imtiaz Ahmad (P. W. 71 held autopsy on the dead body of Ibrahim (deceased) on .9th March 1969, at 10 a.m., and vide his report Exh. P. E. Found the following injury:- "An incised wound, 5' x -- ' on the left side of the head of bone underneath the injury was cut. The direction of the injury was from front to the back. The injury was anti-mortem and caused by sharp edged weapon. The brain matter was cut 3' x -- ' and covered with blood. The stomach contained semi-digested food matter."
Death in the opinion of the doctor was due to shock and haemorrhage. The injury was sufficient to cause death in the ordinary course of nature. The death was immediate and time between death and post-mortem was 24 to 48 hours.
7. The prosecution relied for its case on the testimony of Khan Muhammad (son of Allah Ditta) (P.
W.6), Khan Muhammad (son of Taj Din) (P. W. 7) and Sardar Muhammad son of Allah Ditta (P. W. 8) for the ocular account of the occurrence in addition to the above medical evidence and that of recovery of the blood-stained toka (P. 7) at the instance of the appellant in the presence of Ihsan Ullah (P. W. 9). Bashir Ahmad (P. W. 10) and Sub-Inspector Sultan Ahmad Khan (P. W. 11.) on 27th March 1969, as he had absconded for about three weeks after the occurrence.
8. The case of the appellant was of bare denial and false implication on account of enmity between the witnesses due to party faction arising out of the last B. D. Elections. He, however, led no evidence in defence.
9. The three eye-witnesses had fully supported the prosecution case during the inquiry proceedings but each of them took a complete somersault in their statements at the trial exonerating Sarfraz appellant of the charge levelled against him and it will not be out of place to briefly refer to their statements to facilitate their scrutiny and the assessment of the evidentiary value oar account of this patent infirmity 'in their testimony.
10. Khan Muhammad (F. W. 6), who was admittedly a close relation of Ibrahim (deceased) had deposed about the occurrence itself in the same manner in examination-in-chief as in the report Ex. P. A. Lodged by him at the police station during the same night except that he had accelerated this time by 24 hours. In fact this murder had taken place on the night between Friday and Saturday (the 7th and 8th March 1969), but he was definite that it had occurred on the night between Thursday and Friday (the 6th and 7th March 1969), excluding any chance of mistake about it, which had cut at the root of the entire prosecution case. He had also introduced the summoning of a tracker to follow the foot-prints of the assailant of Ibrahim (deceased) in his examination-in-chief. He however, insisted that he had mentioned this fact in the first information report, but when Exh. P. A. Was read over to him be disowned it as it was silent about the summoning of the tracker. He added that he had gone to the police station at 11/12 p. m. On the night of the occurrence and then sent for the tracker which bad practically demolished the entire prosecution case. In cross-examination by the defence he had introduced some factors which belied his entire evidence. No request was even made by the learned Public Prosecutor to get his statement recorded by the committing Magistrate transferred to the record of the Sessions trial, apparently because he had let down the prosecution in that Court as Well. He bad stated before the committing Magistrate that he bad seen the accused (appellant) from a distance of 2/4 karams and that he had not re--cognized him, but it was his guess that he was Sarfraz appellant.
He had also stated before the committing Magistrate that he had a toka in his hand or something else at that time, but be could not correctly state what that was. He had even weakened the alleged motive in his statement before the com--mitting Magistrate by changing the time and date of the earlier quarrel between Ibrahim (deceased) and Sarfraz appellant from rotiwela on Friday to chhahwela on Thursday and having come to know about the sodomy affair for the first time on that day. Anyhow the learned trial Judge had excluded the statement of this witness from consideration and the learned counsel appearing for the State before us has not chosen to rely on it either. It has, therefore, to be scored of as evidence against the appellant.
11. We are then left with the evidence of Khan Muhammad (P. W. 7) and Sardar Muhammad (P. W. 8) whose statement recorded at the trial have been completely discarded by the learned Sessions Judge as untrue. He has placed reliance on their statements made in the lower Court as transferred to this file under section 288 of the Criminal Procedure Code in convicting the appellant in this case. The preference given by the learned trial Judge to their earlier statements has been assailed before us as misconceived there being no cogent reason for adopting this course.
There is no doubt about this legal proposition that such transferred statements can be treated as substantive evidence in the case, but it is at the same time subject to the provisions of the Evidence Act and subject to the same, if not severer, test of appreciation and evaluation as any other evi--dence. We have to sift and scrutinize their evidence in the context of the other evidence adduced at the trial and the inherent circumstances and natural probabilities of the case. In this arduous task we are to be guided by the well-settled and well-established legal norms and standards for assess--ment of such evidence and not to be swayed away merely by our moral conviction about this murder. Keeping in mind these principles we proceed to examine the evidence of these two witnesses.
12. Khan Mohammad (son of Taj Din) (P. W. 7) had stated before the committing Magistrate that his dhari is adjacent to the dhari of Allah Ditta (the father of the appellant) which is situate in Killa No 23 of Square No. 14 and was present thereat 10/11 a. m. On the day preceding the night of the murder along with Khan Muhammad (son of Allah Ditta) (P. W. 7) and both of them witnessed the altercation which took place between Ibrahim (deceased) and Sarfraz appellant about the clandestine visits of Mukhtar when Khan Muhammad (son of Allah Ditta) (P. W. 6) separated them he further stated that he was again present at this dhari at 10/11 p m on the following night along with Khan Muhammad ('son of Allah Ditta) (P. W. 6) and Sardar Muhammad (P. W. 8) when Ibrahim (deceased) was lying on, a nearby cot and within their sight Sarfraz appellant suddenly came there and planting a blow with a toka on his head he ran away and was given an unsuccessful chase by them. Sardar Muhammad (P. W. 8) had corroborated him about this deadly assault by Sarfraz appellant on Ibrahim (deceased) in his statement before the committing Magistrate adding that on account of darkness he could not make out the weapon used by Sarfraz appellant, but a close scrutiny of these statements would reveal that the learned trial Judge had fallen into an error in coming to the conclusion that their statements before the committing Magistrate were genuine and true or sufficient to bring home the offence to the appellant. Khan Muhammad (P. W.
7) had stated in his cross-examination before the Committing Magistrate that the behk of the cattle was at a distance of 20 karams from the charpai of the deceased and they were sitting on their cots at the said behk since 5/6 p. m. On that evening and there was no rain on that day. The other witness Sardar Muhammad had precisely made the same statement by deposing that the cattle of Ibrahim (deceased) were at a distance of 20/25 karams from his cattle as he had brought his cot to the dhari (place of occurrence) while their cots were still at the behk when this occurrence took place. He had also conceded before the committing Magistrate that it was a dark night, so he could not state with what weapon he (the appellant) had inflicted the injuries when Ibrahim (deceased) was sleeping on his charpai. The statement of both these witnesses showed that Ibrahim (deceased) had brought his cot to the dhari from the behk of his cattle while they continued sitting at the behk which was at a distance of 40/25 karams from the cot of Ibrahim (deceased). How could then they identify the assailant of Ibrahim (deceased) from such a distance who had quietly crept close to his cot and in the twinkling of an eye faded into the darkness after inflicting the solitary blow on his head. Their evidence was thus discrepant with each other and inconsistent with the original prosecution case. According to first information report Exh.
P. A. It was a moonlit night and not a dark night as stated by Sardar Muhammad P. W. Before the committing Magistrate and they were sitting on cots at the dhari at the time of the occurrence and not at the behk as admitted by both Khan Muhammad (P. W. 7) and Sardar Muhammad (P. W. 8) in their cross---examination before the committing Magistrate.
Their depositions were even otherwise against the natural probabilities which usually serve as a touch-stone for testing the credibility of the wit--nesses. The occurrence took place according to Khan Muhammad (P. W. 7) as late as 10/I1 p. m. And according to Sardar Muhammad P. W. At 12 p. m: during the dark night of 7 March 1969. How could then these witnesses cling to the. Charpoy of Ibrahim (deceased) till then when neither of them had their cattle at this dhari. Khan Muhammad (P. W. 7) had admitted that his behk was three fields away from the spot, while Sardar Muhammad P. W. Stated that he used to sleep at his house and his brother Muhammad Din and his servant used to sleep at their behk situate at a distance of 21 squares on the east of the Chak. We have not been able to understand the fun in their staying on at the dhari till 12-00 mid-night besides Ibrahim (deceased) who was admittedly seeping at that time and why should they have brought their charpoy at such a distant place from their respective behks. Both of them had failed to say why Khan Muhammad (son of Allah Ditta) (P. W. 6) was present there when he had no cattle at this behk and his dhari was at a distance of five killas to the west of the Chak.
13. We also find it improbable that the appellant would have dared to come to the behk on this violent mission with a toka in his hand when these three departure from that place if he had waitedth till mid-night for the accomplishment of this task. If he had at all committed this folly how could be ever escape from the clutches of these three stalwarts after inflicting a toka blow on the head of the deceased in a moonlit night as mentioned in the first information report. They could continue his pursuit raising an alarm and so many persons from the neighbouring behks would have closed on him from different sides and apprehended him there and then with the blood-stained toka and hand him over to the police immediately. The pro--secution case thus could not stand the test of scrutiny as the evidence of these two witnesses recorded before the C: M. Has been found, inconsistent with the original prosecution case, the natural probabilities, and other in--herent circumstances. Their bare assertion that Sarfraz appellant inflicted a toka blow on the, head of Ibrahim (deceased) and disappeared when chased by them is not to be accepted blindfold.
Before accepting their transferred statements in preference to their testimony in the trial Court we are called upon to exercise care and caution especially when, there is a serious clash bet--ween the two statements on a material and vital point like the identity of the assailant Ibrahim (deceased). It cannot be held to be axiomatic that these witnesses spoke the truth earlier, and when they go back upon their evidence at a later stage it can well be that they might have spoken the truth at the later stage and their earlier deposition was not true as observed by Murshad,. C. J.
(as he then was) in State v. Umed A.I (PLD 1961 Dacca 533).
We are required to probe and find out some cogent and tangible reasons which induced these witnesses to resile from their earlier statements and we cannot act on mere surmises and conjectures for that matter as to the possible reasons for the witnesses to have adopted this line of action. 1n taking this view of the matter we are fortified by the views expressed in Gal and others v.
Crown (PLD 1954 FC 95).
The close relationship of the appellant with Ibrahim (deceased) would not have alone motivated them to take the risk, making a false statement at the trial as concluded by the learned Sessions Judge. They were not related to the appellant in any manner and there is no evidence to show that they had succumbed to his pressure for any such consideration. In the absence of any subtle reasons to discard their later statements, we cannot place our implicit reliance on their statements made before the C. M., especially when they had perjured themselves in that matter.
It was observed by Sajjad Ahmad, J. (as he then was) in Subhan Khan v. The State (PLD 1960 Lah.
1):- "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 rule of prudence, now well-recognised, Courts must look for positive and material corroboration of such statements. But the basic thing to consider as in ail 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. Therefore, in our view, the value to be given to statements, transferred under section 288, Cr. P. C. Will depend on how far those statements can be believed and accepted when read in the context of the whole case and on the amount of strength which they, can receive from other evidence available in the case. Standing by themselves, such statements do not furnish a safe guide for forming conclusions about the guilt or innocence of an accused person."
This case was relied upon in Kamir v. The State (PLD 1963 Lah. 585) and it was observed that:-- "The Court shall look for positive and material corroboration before convicting the accused on earlier deposition of such witnesses trans--feered under section 288 of the Criminal Procedure Code."
The same view vas adopted in Sikandar Azam and another v. The State (PLD 1967 Kar. 242), thanghai v. The State (PLD 1969 Kar. 200) and Mansoor A.I v. The State (1970 D L C 67), and finally by their Lordships of the Supreme Court in Muhammad Ahmad alias Manda v. The State (PLD 1970 SC 72), and wherein Sajjad Ahmad, J. Who had written the leading judgment had reiterated his views expressed in Subhan Khan v. The State (PLD 1950 Lah. 1), and observed as under:- "Once the statement of a witness recorded by the committing Court is admitted into evidence under section 288, Cr. P. C., it becomes a piece of substantive evidence for all purposes with no difference with any other piece of substantive evidence led in the case. If the state--ment is found to be genuine and true, it can form a sound basis for conclusion of guilt or innocence of an accused person. There is no rule of law and none need be imported, that white such a statement is believed to be trustworthy and honest, it must still require corrobora--petition to make it acceptable to be relied upon. 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 a committing Court and conveniently charges 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 adjudged on its own merits in the context of all the circumstances of the crime."
14. In the present case reliance was placed on the evidence of re--covery of toka (P. 7) at the instance of Sarfraz appellant on 27th March 1969, in the presence of Ihsan Ullah (F. W. 9), Bashir Ahmad (P. W.40) and Sub-Inspector Sultan Ahmad Khan (P. W. 11) to corroborate the testimony of the two aforesaid eye-witnesses; Khan Muhammad (P. W. 7) and Sardar Muhammad (P. W. 8), but the evidence of the recovery witnesses also suffered from the same infirmity, although each of them .Had supported the recovery of toka (P. 7) at the instance of the appellant. Ihsan Ullah (P. W.
9) stated that Sarfraz accused (appellant) while in police custody led them and the police to the wheat field of Ghulam Rasool and produced rusty toka (P. 7) which was stained with blood. He stated that Rahim Bakhsh contested last B. D. Election against him and won it and Sarfraz appellant belonged to the party of his opponent, the aforesaid Rahim Bakhsh. As regards the toka he stated that the appellant had produced it from a distance of 3/4 karams from the banns of Killa No. 13 which they entered from the side of Killa No. 14 having berseem crop in it. He contradicted that Killa No. 13 was lower in level than the other fields by 3/4 feet, and that the wheat crop in Killa No. 13 had been freshly irrigated. He denied that the toka was lying buried in the field. Bashir (P. W. 10), however, belied him by deposing that toka (P. 7) was not found bloodstained at the time of its recovery from the field of Ghulam Rasool in Killa No. 13. He also con--tradicted Ihsan Ullah P. W.
Saying that the toka was lying covered in that field and it was not visible and that the field in Killa No. 13 was wet as some water was present therein at that time. He also stated that there had been brick-kiln in that kills so it was lower in level than the adjoining fields, by, 3 and 3-- feet. He had also stated that they had gone to a distance of 20/25 karams for the wheat field to recover this. Toka while the Sub-Inspector had cut short this distance to five or six karams only. The evidence of these three recovery witnesses was not only discrepant and inconsistent with each other, but Bashir Ahmad P. W. Had definitely contradicted Ihsan Ullah and Sub---Inspector Sultan Ahmad Khan by stating that toka (P. 7) was not stained with blood.
The Chemical Examiner had sent the scraping from this toka to the Serologist for tracing the origin of this blood but for reasons best known to the police this report of the Serologist was not produced at the trial. The appellant would be entitled to insist that it should be presumed under section 114, illustration (g) of the Evidence Act that blood stains allegedly found on toka (P. 7) were not of human origin. The recovery of this toka had thus failed to provide the requisite corroboration and.
Improve the pro--secution case. Reliance is placed on Ahmad Khan and another v. The State (PLD 1962 Lah. 390), wherein the practice of withholding such reports was strongly deprecated by their Lordships observing that it is the duty of the prosecu--petition to produce all material evidence of an independent nature like that of the Ballistic Expert. The interest of justice demanded that this report should have been proved, so that the Sessions Judge and this Court should have been able to form a correct opinion about it.
15. The other factor on which the prosecution had relied for this purpose is the alleged abscondence of the appellant for: about three weeks from the village after the occurrence, but there is only the bald statement of the Investigating Officer about it in this case. They had not produced any evidence to show that any warrant for his arrest was, obtained from the Court which could not be served on Sarfraz appellant due to his dis--appearance from the Chak and proceedings under sections 87 and 88 of the Criminal Procedure Code were then taken against him. The prosecution has, therefore, failed to prove that the appellant had absconded after the occurrence as was held in Thanghai v. The State (PLD 1959 Kar. 200).
16. The alleged incident of the altercation between Ibrahim (deceased) and Sarfraz appellant at rotiwela on the day preceding his murder relied upon by the prosecution as motive for the appellant to dispose of Ibrahim (deceased) in that manner had also fizzled out There was no other evidence about it except the statement of the three eye-witnesses, who have not been found worthy of any credence an this case, so the alleged motive for Sarfraz appellant to kill his uncle Ibrahim (deceased) had also dis--appeared. There was thus no evidence from any independent source which could have corroborated the testimony of these witnesses as laid down in the above authorities, to enable us to place our implicit reliance on their testi--mony in a serious case, like the present one entailing the penalty of death.
17. There is yet another factor which lent grave doubts to the prosecution case and that is the delay in lodging the report and the despatch of the dead body from the spot.
The place of occurrence is admittedly at a distance of hardly a mile from the police station which should not have taken the informant more than half an hour to cover this distance for lodging the report. Khan Muhammad (P. W. 6) had, in fact, stated at the trial that he first went to the police station at 11/12 p. m. In the midnight but the report Exh. P. A. Was lodged at 4-30 a. m.
We then come to the evidence of Ghulam Nabi (P. W. 5) who had identified the dead body at the time of the post-mortem examination and had stated that it was removed from the spot at 1-00 p. m. And first taken to Police Station, Chak Jhumra and it was placed in a truck at 8-0 p. m. For taking to Layallpur. He further added that on that day the police officer had come to Police Station, Chak Jhumra at 2-00 p. m. And Khan Muhammad (P. W. 6) had come with the police officer at Police Station, Chak Jhumra when his statement was recorded in his presence. Foot Constable Rashid Ahmad (P. W. 2) who escorted the dead body to the mortuary had stated before the committing Magistrate that he left the spot 4t about sunset time and brought the dead body to Chak Jhumra.
The irresistible conclusion arising from the above admissions would be that all this time was utilised in prolonged deliberations about the case which would reflect adversely on the entire case.
19. As a result of this discussion we find that the case against the appellant is not free from grave doubts the benefit of which cannot be denied to the appellant and accepting this appeal we set aside his conviction and direct that he shall be set at liberty forthwith if not required in any other case.Accordingly the reference also fails.