' Dilshad appellant was tried under section 302, P.P.C. For the murder of Muhammad Siddique by the learned Additional Session Judge, Sheikhupura. The trial Court vide his judgment dated 21st July, 1992 convicted Dilshad under section 302, P.P.C. And sentenced him to imprisonment for the life and a fine of Rs,5,000 or in default thereof to further undergo R.I. For six months. He was further ordered to pay Rs,40,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, failing which to undergo R.I. For six months. Benefit of section 382-B, Cr.P.C. Was given to the appellant. Hence, the convict has filed the present appeal.
2. Briefly, the prosecution story as contained in the F.I.R. Exh.PA. Is that the complainant being the real father of the deceased Muhammad Siddique was running a grocery shop jointly in Karkhana Bazar, Mandi Dhaban Singh and on the fateful day of 28-10-1990 at 4-30 p.m. The complainant Abdul Ghani alongwith the deceased were coming after closing the shop to attend some personal matter. When they reached near Shah Muhammad Wali Street and while the complainant was a few paces behind the deceased, suddenly Dilshad appellant armed with a Chhuri came from the front side of the street and gave blows to Muhammad Siddique deceased with Chhuri on the chest on the left side and then on the right side. Consequently, he gave more blows in succession on the chest. The deceased Muhammad Siddique fell down and in that state he was given a blow on the flank and one on the back of the deceased. Upon this Muhammad Shafique son of Abdul Jabbar and the real son of the complainant namely Muhammad Sharif were attracted to the spot and had released Muhammad Siddique deceased from the clutches of Dilshad who ran away with his respective weapon of offence. The occurrence was witnessed by the above said witnesses. The motive assigned to the present occurrence is that Dilshad appellant borrowed Rs,100 from the deceased and when the deceased wanted payment of the said amount the appellant murdered Muhammad Siddique deceased. Muhammad Siddique deceased was taken to the hospital where he immediately succumbed to death due to the injuries received by him from the hands of the appellant. The F.I.R. Exh.PA. Was registered by Arshad Ali, Sub-Inspector (P.W.11).
3. The investigation in this case was conducted by Arshad Ali Si (P.W.11). After recording the statement of Exh.PA. Of Abdul Ghani complainant (P.W.8), and sent the same to the Police Station for formal registration Exh.PA./1 of the case through Riaz Hussain F.C. Arshad Ali S.I. Prepared the injury statement Exh.P.G. Of the deceased Muhammad Siddique and the inquest report Exh.P.H. With respect to the dead body of the deceased. He sent the dead body to the mortuary for post- mortem examination through Muhammad Yaqoob and Khalid Hussain Constables P.Ws. Blood- stained earth was also collected from the place of occurrence vide memo. Exh.P.E. He also received the last-worn clothes of the deceased Shirt P.1, Shalwar P.2 blood-stained and took them into custody vide memo. Exh.P.F. On 29-10-1990 he arrested Dilshad appellant and interrogated him.
While in police custody the appellant offered and led to the recovery of blood-stained Chhuri P.3 which was taken into possession vide memo. Exh.P.C. He also prepared the rough sketch of the plea of recovery which is Exh.P.C./1. All the drawing and notes are in his hand and it bears his signatures.
The appellant was put to trial and charged under section 302, P.P.C. The appellant pleaded not guilty. The Investigating Officer recorded the statement of the P.Ws. Under section 161, Cr.P.C. After completing the legal formalities, the challan was submitted in the Court of law.
4. On 29-10-1990, at 11-30 a.m. Dr. Shaukat Hayat (P.W.6) while posted as Medical Officer. In the D.H.Q. Civil Hospital, Sheikhupura conducted the post-mortem examination on the dead body of Muhammad Siddique deceased and found the following injuries on the dead body:--
(1) Stab wound 1 c.m. x 0.5 c.m. On the front of left chest., mid part 4 c.m. Away from the mid line and 6 c.m. About and inner side of above left nipple.
(2) Stab wound 1.5 c.m. x 1 c.m. At the front of left chest, lower part 2 c.m. Below the left nipple.
(3) Stab wound 1.5 c.m. x 0.7 c.m. At the front of left chest, lower most part 3 c.m. From mid-line and 6 c.m. Below the left nipple.
(4) Stab wound 1.5 c.m. x 1 c.m. On the left chest outer most part.
(5) Superficial cut 4 c.m. x 0.5 c.m. On the left abdomen mid part.
(6) Stab wound 2 c.m. x 1 c.m. On the front of right chest lower part 3 c.m. From the mid-line.
(7) Stab wound 2 c.m. x 1 c.m. On the back of right chest, lower part.
5. In his opinion death occurred due to severe shock, haemorrhage and cardio pulmonary arrest.
All injuries collectively and injuries Nos.2, 3, 4, 6 and 7 individually were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was immediate and between postmortem and death was 24 hours.
6. The appellant when examined under section 342, Cr.P.C. In answer to question No,5 "why this case against you and why the P.Ws. Deposed against you?" stated:- "The P.Ws. Are inter se related to the deceased I have been falsely implicated on account of suspicion and party faction."
' With regard to the recovery of blood-stained Chhuri P.3, he stated that the recovery has been planted upon him. So far as the borrowed amount of Rs,100 is concerned, he stated that it is incorrect.
7. The counsel for the appellant has challenged the conviction and sentence of the appellant by stating that the prosecution has failed to prove its case against the appellant beyond reasonable doubt as the evidence of the eyewitnesses P.W.8 Abdul Ghani, P.W.9 Muhammad Shafique read with the evidence of the Investigating Officer Irshad All P.W.11. It is clear that the stated incident had not been witnessed by the eye-witnesses examined at the trial. He further states that the eye- witnesses P.W.8 Abdul Ghani being the real father of the deceased and P.W.9 Muhammad Shafique being the nephew of P.W.8 are not the independent witnesses although it is admitted by the P.Ws.
That this was a broad daylight occurrence witnessed by the several other persons yet not independent witness was brought at the trial. He further stated that the Chhuri P.3 alleged to have recovered from the appellant had no corroborated value as it was not recovered from the exclusive possession of the appellant. Moreover, the dimension of the stab wound received by the deceased do not tally with the dimension of Chhuri P.3. Further that the appellant at the time of occurrence was a teenager under 16 while the deceased was stout built and healthy person and it was not possible that so many injuries were inflicted upon him and he did not save himself as there is no injury on the hands of the deceased and lastly the motive has not been proved by the prosecution and the medical evidence does not corroborate the ocular account given by the prosecution in this case. The fatal attack by defence on the prosecution is that although it is stated by Arshad Ali S.I. (P.W.11) that he has recorded the statement of the P.Ws. Under section 161, Cr.P.C.
But in the cross-examination he had admitted that he correctly recorded the statement of Abdul Latif P.W. In the police diary copy of the which is Exh.D.A. And that Sharif and Shafique P.Ws. Were present near the dead body when he prepared the inquest report which is Exh.P.H. But it is correct that they made no statement to him under section 161, Cr.P.C. About the occurrence.
8. I have perused the record. The prosecution in evidence recorded 12 witnesses in all. The witnesses who were material for this case are Muhammad Riaz Ahmad, Draftsman (P.W.4), Abdul Latif (P.W.5) a recovery witness, Ch. Shaukat Hayat, Medical Officer (P.W.6), Shamir Khan H.C.
(P.W.7), Abdul Ghani (P.W.8) the complainant and the father of the deceased who is also an eye- witness, Muhammad Shafiq (P.W.9) and Arshad Ali S.I. Police Station C.IA., Ferozewala (P.W.11) who investigated the prosecution case and challenged the accused. Muhammad Riaz Ahmad Draftsman (P.W.4) has stated that he on 15-2-1991 joined the police in this case and visited the spot and prepared the rough notes on the pointation of the P.Ws. And finally on 17-2-1991 prepared the site plans (Exh.P.B.) and (Exh.P.B./1).
9. Abdul Latif (P.W.5) states that Dilshad accused in police custody led recovery of Chhuri (P.3) which was made into a sealed parcel and was taken into possession vide Memo Exh.P.C. The defence has not directed anything material against this witnesses while putting him to lengthy cross-examination. The recovery witness is of the same locality where the murder took place.
' Dr. Shaukat Hayat (P.W.6) has explained the injuries already stated in my judgment.
' Shamir Khan, Head Constable (P.W.7) stated that on 14-11-1990, Muhammad Khurshid Head Constable handed over to him a sealed parcel pertaining to this case which was said to have contained Chhuri for taking the same to the office of the Chemical Examiner, Lahore and he delivered the same intact.
' Abdul Ghani (P.W.8) is the real father of the deceased. He is also a complainant and scriber of the F.I.R. He is also eye-witness of the occurrence. He states that after closing his shop he and Siddique were going to their house the deceased was attacked by the accused with Chhuri which ultimated resulted in the death of the deceased. He was cross-examined at length. According to his/version this was a broad daylight murder in a Bazar and it was also witnessed by Sharif and Shafiq. The two witnesses on his alarm ran towards the deceased and, the accused after giving injuries to deceased ran away with his respective weapon. Shafiq and Sharif took his injured son to the Hospital where he succumbed to death before he could be medically examined. It is astonishing that not a single word has been asked about any enmity of this witness with the accused or any motive shown for false involvement of the accused/convict in the murder of his son. Muhammad Shafi (P.W.9) is the eyewitness and he corroborates the story given by Abdul Ghani (P.W.8) although he denies his relationship with Abdul Ghani which is admitted by Abdul Ghani (P.W.8). This witness was also put to lengthy cross examination and even not a single word has been asked from them as to why they falsely involved a 15 years old boy in such a heinous offence.
' Arshad Ali S.I. Police Station C.IA. (P.W.11) has conducted the inquiry. In his examination-in-chief he admits that he has recorded the statements of the P.Ws. Under section 161 of Cr.P.C. But in cross- examination he admits that he has not recorded the statement of Shafiq and Sharif P.Ws under section 161 of Cr.P.C. He has also admitted in his statement that the deceased was addicted to heroin and had bad habit of sodomy.
10. Learned defence counsel states that there is a difference of time while depositing the blood- stained earth and Chhuri. He states that the blood-stained earth was deposited on 30-10-1990 while on 4-11-1990 the sealed parcel containing Chhuri was delivered.
11. Shamir Khan H.C. (P.W.7) has admitted that it was 14-11-1990 when the sealed parcel pertaining to Chhuri was deposited by him. According to the learned counsel for the appellant the delay, between the two, means that the police wanted to plant the blood-stained Chhuri upon the accused which was not available to him at that time. He has further re-enforced his argument by saying that P.W.8 is the real father of the deceased. His statement must have independent corroboration when the occurrence took place in an open place where other persons were also present. Statement of P.W.9 (eye-witness) being not recorded by the police under section 161 of Cr.P.C. Is not admissible in evidence. The learned counsel for the appellant submits that the evidence given by Muhammad Shafique (P.W.9) is completely inadmissible in evidence as his statement was not recorded by the police and was not handed over to the defence for cross- examination of the same and an inference can be drawn easily that the rest of the statements were not recorded at the spot also. Learned counsel for the appellant relied upon Muhammad Sadiq and another v. The State PLD 1960 SC (Pak.) 223 where the statement under section 161 were only 24 hours late and was belied, and it was held by the Supreme Court that the evidence of such witness had no value. Similarly he relied on Sher Bahadur and another v. The State 1972 SCMR 651 where the statement made to Thanedar and recorded by him, not produced in Court. The benefit was given to the accused.
12. This is a very material legal proposition of law so before I give my judgment on the merits of the case I would like to resolve this legal proposition. As far as the provision of section 161, Cr.P.C. Are concerned these are not the mandatory provisions in its nature, because a statement made under section, 161 Cr.P.C. Is not a substantive proof of evidence but that can be used for contradicting the statement of a witness and test the degree of his truthfulness. Such statement cannot be used to corroborate or explain any part of evidence and this is the reason that section 161, Cr.P.C. Leaves it to the discretion of the Investigating Officer to examine earlier a witness which he thinks is acquainted with the case. In Asfaudyar Wali v. The State PLD 1978 Pesh. 38, in relation to the statement under section 161 of Cr.P.C. It was held that the police was duty bound to record statement of witness no sooner he appears before him. The statement of witness recorded few days after occurrence adverse inference was drawn against prosecution witnesses having made statement in line with suggestions of investigating agency. A different view was taken in Muhammad Ramzan v. The State 1991 MLD 2234, where it was held that statement of a witness without oath could not be equated for comparison with the statement of a person made on oath before a Court so there was no reason that a witness on oath should not be believed. In The State v.
Muhammad Iqbal Basra 1987 P Cr. L J 907, Special Court Offences in Banks Lahore, it was held that the statement of a witness under section 161, Cr.P.C. Not recorded by police, can be read in evidence even if a witness is not mentioned in challan but acquainted with facts examined as a witness can be produced with the permission of the Court. Evidently a different view was taken in Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741 where the minority Mr. Justice Dorab Patel, J view was that the prosecution was under an obligation to examine a particular witness in proof of its submission to a statement under section 161, Cr.P.C. It is the duty of the police officer to record every material particular of a witness's statement and if he omits to do so it is the prosecution who must suffer. The prosecution must produce all such evidence and is not compelled to look for only that witnesses, who are otherwise acquainted with evidence under section 265-F. Reference in this behalf was placed on the most appropriate and concerted authority on this proposition is Maganlal Radhakishan v. Emperor AIR (33) 1946 Nag. 173, where it was held that the statement of the witnesses recorded by the Investigating Officer being destroyed and not available to the accused in cross-examination, such an evidence is inadmissible and if there are certain points on a material particular of a prosecution witness, and in these points the statement of that witness is not recorded by the police under section 161, Cr.P.C. It will be presumed that prosecution has failed to give an opportunity to the accused to cross-examine on that material particular that witness and if the statement under section 161, Cr.P.C. On that material points was not available to the accused, it will be otherwise stated that the accused was not afforded opportunity to cross- examine the witnesses on that particular point and the evidence on that point will be inadmissible in evidence particularly if it purports to be based upon personal knowledge of the evidence for which the cross-examination by the accused is necessary. If such an opportunity is not given to the accused it will tantamount to be a denial of cross-examination of that witnesses to the accused.
' The provision of section 161, Cr.P.C. Though discretionary in nature are an essential piece of evidence especially when a witness who has the knowledge of a particular material relating to the evidence it must be recorded by the police to enable the accused of an opportunity to cross- examine the witness in that particular material.
13. Cross-examination is as essential as examination-in-chief for extracting from a witness material which is to constitute evidence. By way of saying that a witness is competent witness and has knowledge of a material particular about the offence, does not render his evidence admissible.
Because for safe administration of criminal justice the accused must be noted with full particular of cross-examination. The statement under section 161, Cr.P.C. Is not a substantial piece of evidence and conviction cannot be based on it. Such statement generally are used by the prosecution to corroborate or to explain any part of evidence in Court and the defence must be supplied with such statement to bring out the truthfulness of a witness. Thus, 1 am of the view that the statement of Muhammad Shafique P.W.9 not recorded under section 161, Cr.P.C. Is not admissible in evidence.
14. After perusing the prosecution evidence minutely I do not agree with the contention of the counsel for the appellant that it was an un-witnessed occurrence. If the evidence of Muhammad Shafique P.W.9 is excluded even then I see no reason why the evidence of P.W.8 who has promptly lodged the F.I.R. Against a single accused/convict duly nominated in the F.I.R. And the stated injuries attributed to the accused in F.I.R. And further explained in the statement of P.W.8 stand fully corroborated by the medical evidence and also by the recovery witness, which is trustworthy and reliable corroborative piece of evidence having-no enmity with the accused/convict to falsely involve him in the said occurrence. The basic principle of safe administration of criminal justice is that in order to secure the ends of justice the evidence should not be considered in isolation, as there are so many bits of evidence and every bit of evidence should be considered together with the whole of the evidence. After weighing the commulative effect of the prosecution evidence I am of the view that the learned Additional Sessions Judge has rightly sentenced the convict. Coming back to the motive I would rather say that prosecution has not only not proved the motive but has rather suppressed the same. The deceased was admitted by P.W.11 the Investigating Officer that he was a heroin addict and had bad habit of sodomy and both of these habits could become the cause of his death.
' Convict appellant is undoubtedly a very young man at the prime of his age. Keeping in view his tender age, I further reduce the sentence awarded to the convict to ten years R.I. And maintain the fine awarded to him vide impugned judgment passed by the learned Additional Sessions Judge, Sheikhupura. He is entitled to the benefit of section 382-B, Cr.P.C.