JUDGMENT MRS. FAKHAR-UN-NISA KHOKHAR, J.- Dilshad appellant was tried u/S. 302 PPC for the murder of Muhammad Siddique by the learned Additional Sessions Judge, Sheikhupura. The trial Court vide his judgment dated 21st July, 1992 convicted Dilshad u/S. 302 PPC and sentenced him to imprisonment for life and a fine of Rs. 5,000/- or in default thereof to further undergone R.I. For six months. He was further ordered to pay Rs.
40,000/- as compensation u/S. 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 FIR Ex. PA is that the complainant being the real father of the deceased Muhammad Siddique was running a grocery shop jointly in Charkhana Bazar, Mand 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 Churri came from the front side of the street and gave blows to Muhammad Siddique deceased with Churri 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 FIR Ex.PA was registered by Arshad Ali, Sub-Inspector (PW.l 1).
3. The investigation in this case was conducted by Arshad Ali, S.I. (PW. Ll). After recording the statement of Ex. PA of Abdul Ghani complainant (P.W 8), and sent the same to the Police Station for formal registration Ex. PA/1 of the case through Riaz Hussan, F.C. Arshad Ali S.I. Prepared the injury statement Ex. PG of the deceased Muhammad Siddique and the inquest report Ex. PH 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 Hussan, Constables P.Ws. Blood-stained earth was also collected from the place of occurrence vide memo. Ex.PE, he also received the last worn clothes of the deceased Shirt P.I, Shalwar P. 2 blood-stained and took them into custody vide memo. Ex.PF. 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 Churri P.3 which was taken into possession vide Ex.PC. He also prepared the rough sketch of the place of recovery which is Ex.
PC/1. All the drawings and notes in his hand and it bears his signatures. The appellant was put to trial and charged 'u/S. 302 PPC. The appellant pleaded not guilty. The Investigating Officer recorded the statements of the PWs purfler 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 (PW.6) while posted as Medical Officer, In the DHO Civil Hospital, Shcikhupura conducted the postmortem examination on the dead-body of Muhammad Siddique deceased and found the following injuries on the dead-body.
(1) Stab wound 1 cm x 0.5 cm on the front of left chest., mid part 4 cm away from the mid line and 6 cm about and inner side of above left nipple.
(2) Slab wound 1.5 cm x 1 cm at the front of left chest, lower part 2 cm below the left nipple.
(3) Stab wound 1.5 cm x0.7 cm at the front of left chest, lower most part 3 cm from mid line and 6 cm below the left nipple.
(4) Stab wound 1.5 cm x 1 cm on the left chest outer most part.
(5) Superficial cut 4 cm. x 0.5 cm on the left abdomen mid part.
(6) Stab wound 2 cm x 1 cm on the front of right chest lower part 3 cm from the mid line.
(7) Stab wound 2 cm x 1 cm on the back of right chest, over part.
5. In his opinion death occurred due to severe shock, haemorrhage and cardio pulmonary arrest.
All injuries collectively and injuries No. 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 u/S. 342, Cr.P.C, in answer to question No. 5 "Why this case against you and why the PWs deposed against you? Stated:- "The PWs are inter se related to the deceased. I have been falsely implicated on account of suspicion and party faction."
With regard recovery has to the recovery of blood-stained Churri P. 3, "he stated that the been planted upon him. So far as the borrowed amount of Rs. 100/- the scaled parcel pertaining to Churri 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 Churri upon the accused which was not available to him at that time. He has further re-enforced his arguments by saying that PW. 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 PW. 9 (eye-witness) being not recorded by the police u/S. 161 of Cr.P.C, is not admissible in evidence, The learned counsel for the appellants submits that the evidence given by Muhammad Shafique (PW. 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 I960 S.C (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 Slier Bahadur and another v. The State (1972 S.C.M.R. 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, arc 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 lest 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 Asfandyar Wali r. The Stale (PLD 1978 Peshawar 38) in relation to the statement u/S. 161 of Cr.P.C, it was held that the police was duty bound to record statement of witness no soon 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 Stale (1991 M.L.D. 2234), where it was held that statement o( witness without oath could not be equaled 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 Slate 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 u/S. 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 view was that the prosecution was under an obligation to examine a particular witness in proof of its submissions to a statement u/S. 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 tho must suffer. The prosecution must produce all such evidence and is not compelled to look for only that evidence, who arc otherwise acquainted with evidence u/S. 265-F. Reference in this behalf was placed on. The most appropriate and concrete authority on this proposition is Maganlal Radhakishan v>. Emperor (AIR (33) 1946 Nagpur 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 a 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 point 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 an 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 u/S. 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, I am of the view that the statement of Muhammad Shafique (PW. 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 unwitnessed occurrence if the evidence of Muhammad Shafique (PW. 9) is excluded even then 1 see no reason why the evidence of PW. 8 who has promptly lodged the F.I.R, against a single accused/convict duly nominated in the FIR and the stated injuries attributed to the accused in FIR and further explained in the statement of PW. 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 waighing the commulative affect 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 1 would rather say that prosecution has not only not proved the motive but has rather suppressed the same. The deceased was admitted by PW. 11 the I.O. 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 lender age, 1 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.