' NOORUL ARPIN, J.-Seven persons, namely, (1) Abdul Majid, (2) Masita, (3) Jalil Ahmad, (4) Jamil, (5)
Islamuddin, (6) Abdul Shakoor and (7) Akhtar Hussain (all appellants herein) were put on trial before the first Additional Sessions Judge, Nawabshah, for the murder on 14-6-72 of one Muhammad Yaseen. Of them Jalil Ahmed and Jamil Ahmad are minors. All the seven appellants are related inter se. The two minor boys, JAI Ahmed and Jamil Ahmad, are the sons of the first appellant Abdul Majid. Appellants 5 and 6, both sons of Abdul Aziz, as well as appellant No, 7 Akhtar Husain, are nephews of Abdul Majid and appellant No, 2 is also related to the first appellant. By judgment dated 26th May 1973, the trial court convicted the five adult appellants under section 302 read with section 149, and under section 148, P. P. C., and sentenced each of these five persons to imprisonment for life for the offence under section 302 read with section 149, P. P. C. And rigorous imprisonment for one year for the offence under section 148, P. P. C. As regards the two minors, namely, Jalil Ahmed and Jamil Ahmad, they were ordered to be kept in safe custody in the Central Prison and their cases were reported under section 26 of the Bombay Children Act, 1924, for orders of the Provincial Government, and the Provincial Government by its orders dated the 26th July 1973, directed both the minors to be confined in Juvenile Jail at Landhi, Jalil Ahmad for a period of five years and Jamil Ahmed for three years.
2. The prosecution version is that the accused party as well as the deceased Muhammad Yaseen own agricultural lands in Survey No, 248/1, Deh Bherro, Taluka Naushahro Feroze, District Nawabshah, within the jurisdiction of Tbaroshah Police Station. In fact, the land of the appellants adjoins that of the deceased Muhammad Yaseen, who, under a private arrangement, permitted the appellants to dig a private water channel from course No, 7 running from the land of the deceased, Muhammad Yaseen, to the accused's land. This arrangement was entered into three or four years previous to the murder of Muhammad Yaseen. A few days before the incident, which is the subject-matter of the prosecution, Muhammad Yaseen closed the water channel. At about 9- 00 a.m. Of 14th June 1972, the appellants, three of whom were armed with hatchets and four with spades, entered upon the deceased's land and forcibly started re-digging the private channel which had been closed by the deceased. When the deceased attempted to prevent the accused from doing so, he was attacked with hatchets and died on the spot. The medical evidence shows that the deceased suffered six incised wounds and one contusion. The first information report was lodged at 10-00 a.m. With the Tharoshah Police Station, at a distance of one mile from the vardat, by P. W. Naseeruddin, the brother of the deceased. The accused in turn had also lodged an F. I. R.
Through the first appellant Abdul Majid at 9-15 a.m. Of 14th June, 1972 to the effect that, while repairing the water channel, he was abused and given fist and kick blows by the deceased Muhammad Yaseen and his son Muhammad Ghaus and the first informant Naseeruddin and his son Muhammad Khurshid (the last three being prosecution witnesses in the present case), and that when he raised cries, his son Muhammad Jamil (one of the two minor appellants) and his relation Akhtar arrived and intervened between the parties. This report was proved by the Investigating Officer, A. S. I. Shahnawaz, though the appellant, Abdul Majid, denied having lodged this report. On the F. I. R. Lodged by the first informant Naseeruddin, A. S. I. Shah Nawaz took up the investigation and sent the body of the deceased, Muhammad Yaseen, for postmortem examination, recorded the statements of the prosecution 'witnesses, and made recoveries of the hatchets and spades said to have been used for killing Muhammad Yaseen and blood-stained clothes from the persons of the accused, and, after completion of the investigation, challaned the accused before the committal Court, from where they were sent for trial before the Court of the First Additional Sessions Judge, Nawabshah, who convicted and sentenced the Five adult appellants as aforesaid and reported the case of the two minors Jalil Ahmed and Jamil Ahmed to the Provincial Government.
3. The prosecution evidence consists of (1) statement of Dr. Sikandar Ali sdxh. 33), who conducted the post-mortem examination, and his post-mortem report, (2) the statement of Dr. Qaimdin (Exh.
22), who examined Jalil Ahmad and Jamil Ahmed to determine their ages and proved his medical certificate (Exh. 23) and deposed that on 3-1-1973, when the two minors were examined by him, Jalil Ahmed appeared to be about sixteen years of age and Jamil Ahmed about twelve to thirteen years of age, (3) evidence of the eye-witnesses, that is, the complainant P. W. Naseeruddin P. W.
Muhammad Khurshid, son of the complainant, and P. W. Muhammad Ghaus, son of the deceased Muhammad Yaseen, (4) recoveries of blood-stained hatchets and clothes and of spades under "Mashirnamas" Exhs. 16, 17, 18 and 19 and of the taking of blood-stained earth from the wardat, (5) and the report of the chemical analyser (Exh. 26), according to which the earth, the hatchets and the clothes sent to the chemical analyser were stained with human blood. The defence of the appellants was one of total denial and the accused further stated that some persons, other than any of them, had killed Muhammad Yaseen, but the accused had been implicated due to the hostility between them and the complainant party.
4. Mr. Irndad All Agha, who addressed detailed arguments on behalf of the appellants, contended that there were such serious discrepancies in the prosecution evidence that the conviction of the appellants could not be sustained. Before dealing with this contention, we may state here that the death of Muhammad Yaseen due to injuries inflicted on him by hatchets and blunt weapons is not in dispute in any way. The Medical Officer of Tharooshah, Dr. Sikandar Afi, carried out the post- mortem examination of the deceased's body and proved his post-mortem report in his evidence in Court and deposed that he found the following injuries on deceased Muhammad Yaseen :
(1) Oblique incised wound 5' x 3' x over the upper half of back in-between both scapula as cutting the fourth thoracic vertibrae.
(2) Oblique incised wound 5f x 3' chest deep over the right side of back below inferior angle of the right scapula cutting the ninth and tenth ribs thoroughly.
(3) Oblique incised wound 5' x x 2i" over the lower lateral part of the right scapula which was cut at that side thoroughly.
(4) Oblique incised wound 3' x 1' x just above the left mastoid bone.
(5) Oblique contusion of red colour 3" x 1' over the middle of left arm on the anterior aspect.
(6) Oblique incised wound 5" x 3' x over the middle of right leg, on the lateral aspect cutting the tebular bone thoroughly.
(7) Transverse incised wound 3r x 2" x over the upper one-third of the left leg on the anterior aspect cutting the tibial bone thoroughly.
' On internal examination, Doctor Sikandar Ali found the following injuries on deceased Muhammad Yaseen :
(1) The ninth and tenth ribs on the right side of the back were cut.
(2) The basal portion of the right lung was cut.
(3) The heart was empty.
(4) The stomach contained only water.
' According to this witness, the death of the deceased was due to haemorrhage and shock in consequence of the above injuries, except Injury No, 5, which appeared to have been caused by hard and blunt substance such as "Lave or the back side of a hatchet, the other injuries being caused by a sharp-edged weapon like hatchet.
5. The question now is whether the prosecution evidence sustains the conviction and sentence recorded against the five adult appellants and the order recorded against the two minors, Jalil Ahmad and Jamil Ahmad, and in this connection we will have to review the evidence led by the prosecution in some detail. P. W. Naseeruddin, the brother of the deceased, lodged his First Information Report with the Tharoshah Police Station at about 10-30 a.m. According to this report, the accused had a water channel through the joint lands of P. W. Naseeruddin and the deceased Muhammad Yaseen under a private arrangement. There was some dispute between the parties, in consequence of which the complainant and his dsiceased brother prevented accused Masita from making use of this channel. The complainant and the deceased then dismantled and closed this channel. According to this report, on 14th June 1975, the complainant, Naseeruddin, was grazing his cattle in the morning at 9-00 a.m. At some distance from the vardat when he saw Abdul Majid, Masita, Jalil Ahmed, Jamil Ahmed, Islamuddin (alias Salamon), Abdul Shakoor and Akhtar Husain re-excavating the channel which had been closed by the complainant and his brother. The complainant and his deceased brother, Muhammad Yaseen, and P. Ws. Muhammad Khurshid and Muhammad Ghaus also arrived there and all four of them then went to the accused to prevent them from re-excavating the channel, but found that, while Jalil Ahmed, Jamil Ahmad, Masita and Akhter Husain were excavating the channel with spades, Abdul Majid, Abdul Shakoor and Islamuddin were standing guard armed with hatchets. When the complainant party tried to dissuade the accused from re-excavating the channel, they were abused, according to the First Information Report, by Abdul Majid, Abdul Shakoor and Islamuddin, who also gave hatchet blows to Muhammad Yaseen, whereupon the latter fell down and the accused left the place. The complainant left P. Ws. Muhammad Khurshid and Muhammad Ghaus by the side of the deceased and went to the Tharoshah Police Station, where he lodged his First Information Report. But in his deposition before the trial Court, the complainant went back upon the material parts of his First Information Report. In his evidence, he stated that he was at a distance of one furlong from the vardat grazing his cattle when he was attracted by cries. When he arrived at the scene, he found that his brother, Muhammad Yaseen had already been killed ; the private water-channel bad been re-excavated ; P. Ws. Muhammad Khurshid and Muhammad Ghaus were surrounded by Abdul Majid. Jamil Ahmed, Islamuddin and Abdul Shakoor, whereas Masita, Akhtar Husain and Jamil Ahead were armed with hatchets and had inflicted hatchet injuries on Muhammad Yaseen, though, in his F. I. R., he had stated that it was Abdul Majid, Abdul Shakoor and Islamuddin who were armed with hatchets, and the remaining four accused had spades in their hands. When he was confronted with his F. I. R. The witness stated that the A. S. I. Had wrongly recorded in the F. R. That the persons who had hatchets were Abdul Majid, Abdul Shakoor and Islamuddin. In his evidence, he insisted that only Masita, Jalil Ahmed and Akhtar Hussain were armed with hatchets. This witness further stated in his evidence that he was prevented from approaching the scene of offence by the threats held out by all the accused, and that, even before his arrival, Muhammad Yaseen was already dead in consequence of the hatchet injuries inflicted on him. In cross-examination, the witness stated that the deceased, Muhammad Yaseen, was previously on bad terms with his step brothers, Rafique and Siddique, but that the dispute between them had been settled. P. W. 3, Muhammad Khurshid, the son of the complainant (Exh. 10) stated in his evidence before the trial Court, that, two or three days before the incident, the deceased, Muhammad Yaseen, had quarrelled with the accused and had prevented them from using the private water-channel, which the deceased dismantled and closed. On the day of the incident, he was ploughing his deceased uncle's land at a distance of one furlong from the scene of the incident, when he was attracted by commotion and he and P. W. Muhammad Ghaus, the latter being the son of the deceased, therefore, hurried to the scene, where they found Masita, Jalil Ahmed and Akhtar Hussain armed with hatchets and the remaining four accused carrying spades, but the four accused carrying the spades prevented P. Ws. Muhammad Khurshid and Muhammad Ghaus from going near Muhammad Yaseen, who was being subjected to hatchet blows by Masita, Mil Ahmed and Akhtar Husain. The witness further deposed that his statement was not recorded by the police during investigation of the offence. The third and last eye-witness is P. W. Muhammad Ghaus, the son of the deceased, Muhammad Yaseen. He also says that his statement was not recorded by the police during the investigation. He confirms the statements made by the other two eye-witnesses that the deceased, Muhammad Yaseen, had closed the water channel which had been in the use of the accused persons. On the day of the incident, he saw from a distance of thirty to forty paces that the accused persons were re-digging this channel. He then heard commotion and found that his deceased father was surrounded by Masita, Jalil Ahmed and Akhtar Husain, who were armed with hatchets and who were giving hatchet blows to Muhammad Yaseen. Accordingly, this witness raised cries, wherupon the complainant, Naseeruddin, arrived at the scene. This witness does not say anything about the arrival of P. W. Muhammad Khurshid at the scene of the offence. He also contradicts the complainant by saying that the complainant, P. W. Muhammad Khurshid and he himself, that is, P. W. Muhammad Ghaus, went to the police station with the dead body of Muhammad Yaseen for lodging the First Information Report. He further contradicts the complainant by saying that it was in his presence that the complainant had told the police that the three persons who were armed with hatchets and had given hatchet blows to the deceased were Abdul Majid, Abdul Shakoor and Islamuddin, it being noted that the complainant in his evidence before the trial Court asserted that the A. S. I. Wrongly recorded in the First Information Report that he had told the police that the persons who carried hatchets and gave hatchet blows were Abdul Majid, Abdul Shakoor and Islamuddin, and that, in fact, the persons who carried hatchets and gave hatchet blows to Muhammad Yaseen were Masita, Jalil Ahmed and Akhtar Husain. The next important prosecution witness is the mashir, Abdul Razaq (Exh 13). He is one of the two rhashirs, the other mashir being Nathu, who was not examined at the trial. Both these mashirs were parties to the material 'mashirnamas' on record, that is, Exhs. 14 to 19. It should be here noted that, according to the complainant, Naseeruddin, both the mashirs were related to the deceased, Muhammad Yaseen, in that Abdul Razak's neice was the wife of the deceased, and Nathu was the deceased's brother-in-law. At the trial, this witness confirmed only the 'masnirnarna' of the Yardat (tad'.
141. With regard to the other 'mashirnamas, he said that he was called at the Police Station the next day, where he was asked to sign the other `mashirnamas', which he did, but that it was incorrect that, in his presence, the accused were arrested, or that blood-stained clothes were incriminating from the person of accused Abdul Majid, or any other ncri-minating articles from the other accused, or even that the accused, Abdul Shakoor, led the police to his house, or that the police secured blood-stained clothes from the person of Abdul Shakoor. The witness further stated that, when he reached the police station the next day, he found all the accused present there. The witness was declared hostile and was cross-examined by the A. P. P. And in his cross-examination the statement made by him before the committal Court (Exh. 21) was read over to him, wherein he had admitted that he was a party to all the "mashirnamas" which were prepared in his presence, and that it was in his presence. That the blood-stained clothes were secured from the persons of the accused, and the blood-stained hatchets were recovered at the accused persons' pointation.
An inadvertent omission was made by the prosecution, in that the prosecution failed to get the lower Court statement of this witness (Exh. 21) formally brought on record through this witness himself. However, on the same day on which this witness was examined by the trial Court. His lower Court statement was formally brought on record by the order of the trial Court on an application made by the A. P. P. To us, this procedure does not in any away appear to militate against the requirements of law, as section 288 of the Criminal Procedure Code does not lay down the rule that the previous statement of a witness recorded in the presence of the accused should be formally proved by the witness himself, as the section merely provides that such statement may be treated as evidence if the witness is produced and examined before the trial Court, though we would record our view that the rule of prudence requires that ordinarily the previous statement of such witness, if he is examined before the trial Court, should be brought on record through the witness himself.
6. Apart from the evidence of the Investigating Officer, A. S. I. Shahnawaz (Exh. 24) to which we will have occasion to refer in the course of this judgment, we have reviewed the principal pieces of the prosecution evidence against the seven accused persons, and, as we have said, the question is whether this evidence is sufficient to sustain the conviction and sentence recorded against the five adult accused and the order and direction under section 26 of the Bombay Children Act against the two minor accused persons. As far as the account given by the eye-witnesses is concerned, it suffers from serious discrepancies, and, unless the main particulars given in this account are corroborated by reliable evidence, no conviction can safely be based on the evidence of these witnesses. The complainant has given contradictory versions in his First Information Report and in his evidence before the trial Court. In his first information report, the complainant stated that the accused persons tried to re-excavate the private water-channel which had been previously closed by the deceased, Muhammad Yaseen, in the presence of the complainant himself and of the deceased, Muhammad Yasin, and P. Ws. Muhammad Khurshid and Muhammad Ghaus ; that all four of them tried to prevent the accused from doing so, when the accused retaliated by inflicting hatchet blows on Muhammad Yaseen, who died on the spot. This version contained in the First Information Report would appear to be improbable, in that it should be expected that the accused persons would retaliate by attacking all the four members of the complainant party who tried to prevent the accused from re-excavating the channel, and would not merely choose the deceased, Muhammad Yaseen, as the target of their retaliation. In fact, the evidence of the complainant would support the view that he was not at all present at the scene of olience, when the whole incident, which is the subject of the prosecution, occurred. He himself admits in his evidence that he was at a distance of one furlong away, grazing his cattle, when he, had heard cries and when he leached the scene, he found that Muhammad Yaseen had already been killed by hatchet blows and P. Ws. Muhammad Khurshid and Muhammad Ghaus were surrounded by the four persons carrying spades and were being prevented from going near the deceased. The complainant himself was kept at a distance, according to his own admission, by the threats held out to him by the accused persons. Then, in his First Information Report, the complainant specifically stated that Abdul Majid, Abdul Shakoor and lslamuddin were all armed with hatchets with which they had killed Muhammad Yaseen, whereas Mesita, Jalil Ahmed, Jamil Ahmed and Akhtar Hussain had spades with which they were trying to re-excavate the water channel, but, in his evidence, he stated that the persons who carried hatchets and inflicted hatchet blows on Muhammad Yaseen were Masita, Jalil Ahmed and Akhtar Hussain, and the persons who carried spades were Abdul Majid, Abdul Shakoor, Islamuddin and Jamil Ahmed. The other two eye-witnesses P. Ws.
Muhammad Khurshid and Muhammad Ghaus also said that the persons armed with hatchets were Mesita, Jalil Ahmed and Akhtar Hussain. We fail to understand why the complainant should have made such a serious mistake in his F. I. R., when the Investigating Officer, A. S. I. Shahnawaz, who is supported by P. W. Muhammad Ghaus, stated that he had correctly recorded the F. I. R. And the names, as given to him by the complainant, of the three persons who carried hatchets and killed Muhammad Yaseen with hatchet blows. Further, the complainant stated in his evidence that he left P. Ws. Muhammad Khurshid and Muhammad Ghaus at the scene to stand guard over the body of Muhammad Yaseen, but P. W. Muhammad Ghaus stated that, in fact, all the three eye- witnesses namely, the complainant and P. Ws. Muhammad Khurshid and Muhammad Ghaus went to the police station with the dead body of Muhammad YesCen to lodge the F. I. R. These discrepancies would support the defence contention that in fact, the complainant was not present at the time the incident occurred, but came later to the scene of the offence, where he found the dead body of Muhammad Yaseen with hatchet injuries. Even P. W. Muhammad Khurshid stated in his evidence that the complainant was at a distance of one furlong from the varaat and arrived there only on hearing commotion. As regards P. Ws. Muhammad Khurshid and Muhammad Ghaus, we fail to understand as to why their statements were not recorded during the police investigation, and both these witnesses specifically stated before the trial Court that the police did not record their statements during the investigation of the offence. Then, there is variance, which to us looks rather serious, between the account of the incident given by P. W. Muhammad Khurshid and that given by P. W. Muhammad Ghaus. P. W. Muhammad Ghaus said that he saw from a distance of thirty to forty paces that the accused party was re-excavating the water-channel with spades, and then he' heard commotion and found his father, Muhammad Yaseen, surrounded by Masita, Akhtar Hussain and Jalil Ahmed, who were giving hatchet blows to the deceased, and that then he raised cries, whereupon the complainant arrived at the scene. P. W. Muhammad Khurshid said that both he and Muhammad Ghaus tried to intervene, but were surrounded by Abdul MAN, Islamuddin, Abdul Shakoor and Jamil Ahmed, who were carrying spades, but P. W. Muhammad Ghaus does not say that he at all attempted to intervene in the dispute between the deceased and the accused party, or that he by himself, or together with P. W. Muhammad Khurshid, tried to assist his father, or to save him from the hatchet blows which were being inflicted on him by accused Masita, Jalil Ahmed and Akhtar Hussain. One would naturally expect a son to make an effort to save his father from a situation of the kind narrated in the prosecution evidence, but P. W. Muhammad Ghaus did not behave in this manner and instead raised cries, whereupon Naseeruddin arrived at the scene.
P. W. Muhammad Ghaus does not at all refer to P. W. Muhammad Khurshid. Nor does he say that P.
W. Muhammad Khurshid also arrived at the scene or was in his company already when he heard commotion and found his father surrounded by three of the accused persons. It is the common ground of the three eye-witnesses that, three or four days before the incident, Muhammad Yaseen had closed the water-channel which had been in the use of the accused persons.- P. W.
Muhammad Ghaus saw the accused re-excavating the water-channel, but did not attempt to remonstrate with the accused or attempted to dissuade them from doing so. Thus, there are inherent infirmities in the versions given by each of the three eye-witnesses and an impression is left on the mind that, in fact, none of them witnessed the occurrence, but that either all or one or two of them found the dead body of Muhammad Yaseen lying near the water-channel which he had previously closed.
7. Mr. Manzoor Hussain, the learned counsel for the State, contended that the version of the three eye-witnesses, namely, P. Ws. Naseeruddin, Muhammad Khurshid and Muhammad Ghaus, is supported by the evidence of recoveries of blood-stained clothes and hatchets under 'Mashirnamas' Exhs. 15 to 19. But one of the two Mashirs examined at the trial, P. W. Abdul Razzaq, repudiated the Mashirnamas' and stated that neither the accused were arrested in his presence, nor any incriminating articles, including blood-stained clothes, secured from their persons or at their pointation in his presence, and that he was called at Police Station a day after the incident, where he found all the accused persons present and the 'Mashirnamas' ready which he was asked to sign and which he, in fact, o did sign. Mr. Manzoor Hussain then took the stand that this Mashir was declared hostile as an interested person, and that, therefore, his statement recorded by the Committal Court (Exh. 21), which was brought on record under section 288 of the Criminal Procedure Code, should be preferred to the statement which this witness made at the trial of the accused. To this contention, Mr. Imdad Ali Agha took two objections, firstly, that the passages of the witness's statement before the Committal Court which were in contradiction of what he stated before the trial Court were not specifically and separately put to this witness and were not re- produced in the witness's deposition as required by section 145 of the Evidence Act, and secondly, the statement of the witness made before the committal Court (Exh. 21) should not be read in evidence, as it was not brought on record through this witness himself. With regard to the second contention, we have already expressed our view, and we reiterate this view, th4t section 288 of the Criminal Procedure Code does not in specific terms lay down any rule that the previous statement of a witness, proposed to be read as evidence in terms of this section, should be proved or brought on record through this witness himself, though the rule of prudence does require that the procedure to be followed in such cases should be what Mr. Lmdad All Agha suggests. But, in the instant case, no prejudice has been caused to the accused persons, as, in fact, the whole of the witness's statement recorded by the committal Court was read over to the witness, and he repudiated it and it was merely an inadvertent omission that this statement was not brought on record through this witness himself, but was exhibited in the record on the application made by the A. P. P. On the very same day when this witness was examined at the trial. Though this is our view, but we will repeat that the prudent and safe course would normally be that the previous statement of a witness, proposed to be admitted in evidence in terms of section 288 of the Criminal Procedure Code, should be brought on record through this witness himself and a note should be made by the Presiding Officer of the Court that this procedure had, in fact, been followed. With regard to the first contention, we are of the view that once a previous statement of a witness has been shown to him or has been read over to him and he repudiates the whole of the statement, then it is not necessary that each incriminating passage of such statement should be separately put to the witness and his separate answer should he elicited with reference to each such passage. Once the witness repudiates, his whole previous statement, it would serve no useful purpose to' reproduce in his evidence at the trial each incriminating passage separately, and his answer with reference thereto. In this connection, we would refer to Sheru v. The State (1) in which the rule was laid down that once a witness repudiates his previous statement, which is proposed to be brought on the Sessions record, then it is superfluous to put particular contradictions separately and specifically to the witness, because it is sufficient compliance with section 145 of the Evidence Act if the whole of the previous statement has been read by the witness or has been read out to him. But we {{FOOT NOTE}}
(1) PLD 1960 liar. 195 {{FOOT NOTE}} ' agree with Mr. Imdad All Agha that, in such circumstances, the evidence of such a witness should be treated with caution. In our view, though the previous statement of the witness can be treated as evidence in terms of section 288 of the Criminal Procedure Code, the question would still remain as to what value should be attached to such statement. In Ali v. The State (1) their Lordships of the Supreme Court held that though the earlier statement made before the committing Court can justifiably be used under section 288 of the Criminal procedure Code in preference to the statement made before the trial Court, yet, if there is contradiction between the two statements, the previous statement should be relied upon only after taking into consideration all the facts and circumstances of the case, and that mechanical use should not be made of the provisions of section 288 of the Criminal Procedure Code, but the trial Court should consider the case in all its aspects to determine whether the earlier statement should be preferred to the statement made before the Court itself and a reason should be found from the evidence on record for preferring the earlier statement of a particular witness. In a Karachi case, Sikandar Azam and another v. The State
(2) the view was taken that ultimately the question in such cases is of the evidentiary value to be attached to the earlier statement of a witness in preference to the statement made before the trial Court, and that the value of the earlier statement would depend on the circumstances of the whole case, and that the Court should, as a rule, look for positive and material corroboration of the earlier statement of the witness to justify it to base conviction thereon. Their Lordships of the Supreme Court had again occasion to discuss this point in Muhammad Ahmed alias Mahanda v. The State (3). It was held by their Lordships that once a previous statement is admitted into evidence under section 288, Cr. P. C. It becomes a piece of substantive evidence for all purposes, and, if the statement is found to be genuine and true, it can form a sound basis for the conclusion of guilt or innocence of an accused person, and that there is no rule of law requiring such statement to be corroborated by other evidence, though as a rule of prudence the superior Courts have laid down that, in such circumstances, the earlier statement proposed to be transferred to the Sessions record under section 288, Cr. P. C. Should find coroboration in some independent source. Their Lordships again reiterated their earlier view that each statement transferred to the Sessions record under section 288, Cr. P. C. Has to be judged on its own merits in the context of all the circumstances of the case. In the particular case which was before their Lordships, it was found necessary to find independent corroboration of the earlier statement which had been brought on the Sessions record under section 288, Cr. P. C. While rejecting the witness's statement recorded under section 164, Cr. P. C. As a piece of sufficient and independent corroboration, their Lordships held that the evidence of the Investigating Officer with regard to the recovery of the blood-stained shirt and the blood-stained hatches could be treated as independent corroboration of the earlier statement of the witness if there was no reason to distrust the evidence of the Investigating Officer.
8. Thus, in the instant case, the evidence of the Investigating Officer, namely, A. S. I. Shabnawaz has at length deposed with regard to the recovery of such clothes and articles, that is, blood-stained hatchets and clothes as is {{FOOT NOTE}}
(1) PLD 1967 SC 307 (2) PLD 1967 Kar. 242
(3) PLD 1970 SC 72 {{FOOT NOTE}} ' on the lines of the "Mashirnama Exhi.. 15 to 19, referred to above. But, in the circumstance of this case, we find it difficult to place implicit trust and faith in the version given by the Investigating Officer with regard to recoveries. All the three eye-witnesses, namely, the complainant Naseerud- din and P. WA. Muhammad Khursh id and Muhammad Ghaus, agreed on one point, that only three of the accused persons carried hatchets the which they inflicted fatal injuries on the deceased, Muhammad Yaseen, the other four accused persons carrying only spades. If so, then how six hatchets were secured from or recovered at the pointation of the accused persons? Even the report of the chemical analyser (Exh. 26) says that six hatchets had been sent for chemical analysis and were found to be stained with human blood. It is not the case of any prosecution witness that six of the seven accused perzons carried hatchets which they used for killing the deceased, Muhammad Yaseen. Nor is it the prosecution case that any spades were used for inflicting blows on Muhammad Yaseen, as no blood-stained spade was either recovered or sent for chemical analysis. A. S. I. Shahnawae further stated in his evidence that blood-stained clothes were secured from accused Akhtar Hussain also, but the relevant 'Mashie/lama' (Exh. 16) which relates to the recovery of the blood-stained clothes from the persons of the accused does not mention the name of Akhtar Hussain at all, though Akhtar Hussain is said to have produced a hatchet under It xh.
19. According to Exh. 16, only four blood-stained shirts were secured and that also from the persons of accused Abdul Majid, Abdul Shakoor, Islamuddin, and Masita. But the Chemical analyser's report (LAP. 26) shows that only three shirts were sent for chemical analysis and were found to be stained with human blood. The three alleged eye-witnesses, as has been noted above, are agreed on one point, that is, only three persons carried hatchets and gave hatchet blows to the deceased, and they were Masita, Akhtar Hussain and Jalil Ahmed and, if so, it has not been explained how blood- stained clothes could be secured from the persons of Abdul Majid, Abdul Shakoor and Islamuddin also. Thus, the version given by the three eye-witnesses, the version contained in the 'Masiurnamas' with regard to the recoveries referred to above, the version given by A. S. I. Shahnawaz and the report of the chemical analyer bring out these discrepancies (1). According to the three eye- witnesses only three of the accused persons were armed with hatchets which they used to inflict fatal blows on Muhammad Yaseen, whereas the relevant 'Mashirnama', the evidence of A. S. I.
Shahnawaz and the report of the chemical analyser show that six blood-stained hatchets were produced or recovered at the pointation of the accused persons ; (2) according to the `Mashirnama', four blood-stained shins were secured from the persons of the accused, whereas the report of the chemical analyer shows that only three blood-stained shirts were sent for chemical analysis, the inference being that only three blood-stained shirts were secured from the accused persons ; (3) A. S. I. Shahnawaz states that blood-stained shirts were secured from the person of the accused Akhtar Hussain, but no reference is contained in the relevant `Mashirnama'
(Exh. 16) which relates to the recovery of blood-stained clothes ; and (4) the alleged eye-witnesses have all stated that the persons, who carried hatchets with which they killed the deceased, were Masita, Akhtar Hussain and Jalil Ahmed, and therefore blood-stained clothes should have been secured from the persons of these accused, and not from the persons of Abdul Majid, Abdul Shakoor and Islamuddin, who, according to the eye-witnesses, were either busy in re-excavating the water-channel with spades or were attempting to prevent the eye-witnesses from going near the deceased, Muhammad Yaseen, who was being subjected to hatchet blows.
9. We have given our anxious consideration to all the arguments ably advanced at the Bar by Mr. Manzoor Hussain, the learned Advocate for the State. However, we are unable to take the view that the evidence of A. S. I. Shahnawaz, the Investigating Officer; with regard to the recoveries can be treated as reliable and independent corroboration either of the contents of the relevant 'Mashirnamas' or even of the statement, of the Mashir, P. W. Abdul Razzaq, recorded before the committal Court and brought on the Sessions record under section 288, Cr. P. C. Note should also be taken of another aspect of the case. According to the Mashir P. W. Abdul Razzaq, his own niece was the wife of the deceased, Muhammad Yaseen, and the other Mashir, Nathu, is the brother-in- law of the deceased. Such being the close relationship borne by the Mashir to the deceased person no satisfactory explanation has been given as to why this Mashir went back upon the `Mashirnama' and upon his statement recorded before the committal Court. This being the position with regard to recoveries of incriminating clothes and articles, and there being inherent infirmities in the version given by each of the three eye-witnesses, namely, the complainant, Naseeruddin, and P.
Ws. Muhammad Khurshld and Muhammad Ghaus, which we have discussed at length above, we are of the view that the prosecution evidence is not sufficient to sustain the conviction and sentence recorded against the five adult accused persons and the order and direction recorded under section 26 of the Bombay Children Act against the two minor accused person Accordingly, we allow the appeal, set aside the conviction and sentence of the five adult appellants, namely, Abdul Majid and Masita, both sons of Ismail, Islamuddin and Abdul Shakoor, both sons of Abdul Aziz, and Akhtar Hussain son of Muhammad Siddique and acquit them and direct that they be set forth at liberty unless wanted in any other case.' As regards the minors Jalil Ahmed and Jamil Ahmed, both sons of Abdul Majid, we supersede and quash the order made against them under section 26 of the Bombay Children Act and direct that they be released forthwith from detention.