' MUHAMMAD SADDIQUE, J.-According to the prosecution the brief facts of the case are that Kalu deceased suspected that Gullan appellant had illicit intimacy with his wife Mst. Hayatan. One day prior to the occurrence namely 6-11-1974. Gullan appellant while passing near the Basti of Kalu deceased, was caught by the decessei and Noora P. W. After blackening his face, the appellant was warned not to visit that Basti again. This is said to he the immediate motive in this case. Next day I e. 7-11-1974, at about 7-30 a.m. Khan Muhammad and Jan Muhammad P. Ws. Were present at Band Matwala as they were looking after their jowar crop. Kalu deceased alongwith Noor Muhammad P. W. While going to Band Balleywala for cutting grass pasted from near them After a short while Khan Muhammad and Jan Muhammad (P. Ws.) were attracted by dhar dhar from Band Balleywala. They rushed to that band and saw Gullan appellant inffisting kali blow to Kalu while Mureed appellant injuring Noor Muhammad with his chhuri. Kalu deceased fell on the ground and succumbed to his injuries on the spot. Khuda Bakhsh (P. W. 11), also reached the spot and claims to have witnessed the occurrence. The appellants after inflicting injuries to the deceased and Nem Muhammad P. W., ran away with their respective weapons. Leaving others on the spot, Khan Muhammad complainant went to the Police Station Sadder D. G. Khan, where he lodged the First Information Report (Exh. P. A.) at 10-30 a.m. On the same day. Sub-Inspector Saifullah Khan (P. W. 7) after recording the First Information Report, reached the spot, prepared the injury statement (Exh. P.
E.) and inquest report (Exh. P. F.) of Kalu deceased and despatched the dead body to the mortuary for post-mortem examination. He took into possession blood-stained earth from the spot and made it into a sealed parcel vide memo. &h. P. C. He also prepared the injury statement (Exh. P. G.) of Noora P. W. And sent him to the hospital for medical examination. The Police Officer arrested Gullan appellant on 10-11-1974. He produced blood-stained kati P. 1 before the Investigating Officer which was taken into possession and sealed into a parcel vide memo. Exb. P. B. Mureed appellant was arrested on 13-11-1974. The Investigating Officer got prepared site plan (Exh. P. H.) from Noor Muhammad Patwari P. W. After the usual investigation the police challaned both the appellants under section 302/307/34, P. P. C. They were tried by the Sessions Judge, Dora Ghaai Khan, who vide impugned judgment dated 2-3-1976, found them guilty under section 302/34, P. P. C. For the murder of Kalu deceased and sentenced Gullan appellant to death subject to confirmation by this Court. He was further sentenced to pay a fine of Rs 2,000, or in default to undergo R. I. For one year.
This appellant was further convicted and sentenced to undergo R. I. For six months under section 324/34, P. P. C. For causing injuries; to Noora (P. W.). It was ordered by the trial Court that this sentence shall be operative only if the death sentence was not confirmed by this Court Mureed appellant was convicted under section 302/34, P. P. C. And sentenced to undergo life imprisonment and also to pay a fine of Rs, 2,000 or in default to undergo R. I. For a further period of one year.
Mureed appellant was further sentenced to undergo R. I. For one year under section 324/34, P. P. C.
For causing injuries to Noora (P. W.). This sentence was ordered to run concurrently with sentence of life imprisonment. The fine, if realised, was ordered to be paid to the heirs of the deceased as compensation. The appellants have challenged their convictions and sentences through the present appeal. The case is also before us under section 374, Cr. P. C. For the confirmation of the sentence of death awarded to Gullan appellant by the trial Court. This judgment will dispose of the Criminal Appeal as well as the Murder Reference.
2. On 8-11-1974, Dr. Abdul Ghani Asim, performed the post-mortem examination on the dead body of Kalu deceased and found the following injuries on it
(1) Incised wound 1" x 1-4 heart deep on right side of chest. Right side of heart was ruptured at level of sternocostal angle between fifth and sixth ribs. Thorax was full of blood.
(2) A contused wound 1' x 1' on left side of chest.
(3) An incised wound horizontal in direction on right side of abdomen, piercing the right iliac bone.
Stomach contained green coloured fluid. Blaader was empty. All other organs were normal and intact.
' In the opinion of the doctor death was instantaneous and due to shock and haemon hage. All the injuries were anteemortem. Injuries Nos. 1 and 3 were caused by sharp-edged weapon while injury No, 2 was with blunt weapon. Injury No, 1 was fatal and was sufficient to cause death in ordinary course of nature. Death was instantaneous and probable time between death and post-mortem was 10 to 20 hours.
' On 8-11-1974, the same doctor medically examined Noor Muhammad (P. W.) and found the following injury on his person
(1) An incised wound 1-4 x 1-4 on the left side of forehead above left eye.
' The duration of the injury was about 30 hours. This injury was caused by sharp-edged weapon and was simple in nature.
3. The appellant Gullan when examined under section 342, Cr. P. C. Denied the prosecution allegations. He tendered in evidence a copy of Khasra Girdawari Exh. D. C. The other appellant Mureed also denied the prosecution allegation but produced no evidence in defence.
4. In support of its case the prosecution produced four eye-witnesses namely, Khan Muhammad (P. W. 9), Jan Muhammad (P. W. 10), Khuda Bakhsb (P. W. II) and Noor Muhammad (P. W. 12). The prosecution further relied upon the recovery, the motive and medical evidence. The trial Court believed the prosecution evidence and convicted and sentenced the appellants as mentioned above.
5. To prove the recovery of kati P. 1 at the instance of Gullan appellant, the prosecution produced Ladha (P. W. 4) and Gahi (P. W. 5) in addition to the Investigating Officer. Ladha and Gahi P. Ws. Did not support the prosecution and were declared hostile and allowed to be cross examined by the Public Prosecutor. As regards the Investigating Officer, there are material discrepancies between his statement and the statements of other witnesses. The trial Court while disbelieving the recovery of kati P. 1 observed that it was not believable that the appellants would have carried this kati which was also stained with blood for three days and that there was sufficient time for him to dispose it of. After going through the statements of these witnesses we are satisfied that the trial Court has rightly rejected the evidence regarding the recovery of kati P. 1 against Gullan appellant. Nothing was recovered from or at the instance of Mureed appellant. In fact he was found innocent during the investigation by the Investigating Officer.
6. As mentioned above the motive alleged by the prosecution in this ease was that Kalu deceased suspected that Gullan appellant had illicit liaison with his wife Mst. Hayatan. One day prior to the occurrence while the appellant was passing near the house of the deceased, his face was blackened and he was given a beating and warned not to visit that basti again. To establish the motive the prosecution produced Khan Muhammad (P. W. 9) arid Jan Muhammad (P. W. 10). The Public Prosecutor got both these witnesses declared hostile and he was allowed to cross-examine them. According to the prosecution Nur Muhammad P. W. Was present with Kalu deceased on 6-11- 1974 when Gullan appellant happened to pass from near the house of the deceased and was given a beating and his face was also blackened. This was the immediate cause of the murder. It is however an admitted fact that the statement of said Noor Muhammad P. W. Is completely silent about this motive. The trial Court while disbelieving the motive observed that the motive alleged against Gullan appellant was not worth and that the prosecution failed to prow any motive whatever against Mureed appellant. After going through the relevant material we are satisfied that the trial Court has rightly disbelieved the motive alleged by the prosecution.
7. The fate of this case depends upon acceptance or rejection of the ocular evidence. As mentioned above the prosecution produced four eyewitnesses, namely, Khan Muhammad (P. W.
9), Jan Muhammad (P. W. 10), Khuda Bakhsh (P. W. 11) and Noor Muhammad (P. W. 12). They are related inter se as well as to the deceased. Kalu deceased was the nephew of Khan Muhammad P.
W. Noor Muhammad (P. W. 12) is the cousin of the deceased and son of the complainant Khan Muhammad P. W. Jan Muhammad (P. W. 10) and Khuda Bakhsh (P. W. 11) have also admitted their relationship with Kalu deceased. Further the eye-witnesses have admitted that they had long- standing enmity with Gullan appellant and his relatives over the turn of water. All the eye-witnesses were declared hostile and allowed by the trial Court to be cross-examined by the Public Prosecutor. It seems that these witnesses had tried to please both the prosecution as well as the defence. They have supported the prosecution case in their examination-in-chief but in cross- examination admitted every suggestion put to them by the defence counsel and thereby completely damaged the prosecution case. The trial Court was conscious of this situation but came to the conclusion that these eye-witnesses made obliging statements and concession in favour of the accused in cross-examination to save them from punishment. The trial Court therefore believed their statements in examination-in-chief only and convicted and sentenced the appellants as mentioned above. In such a situation where the eye-witnesses speak in two different voices in the same breath, the obvious inference would be that they are not witnesses of truth.
Taken on their own words, these witnesses have themselves demonstrated to be unreliable and have made their veracity doubtful. In any case strong corroboration from independent source would be necessary before acting upon one part of such statement and rejecting the other. The Mate Counsel has not been able to point out from the record any such corroborative piece of evidence. Tice proper course for the trial Court was to consider the statements of the eyewitnesses in their entirety and then see whether they inspire any confidence or not. In our view reliance in this behalf can safely be placed upon the following observation made by Their Lordships of the Supreme Court in Sultan's case (1) : "The learned Judges of the High Court were not right in maintaining the conviction and sentence merely relying on the statements made by the witnesses In their examination-in-chief. Their failure to consider the evidence of each witness in its entirety and the pertinent facts elicited by cross- examination, in fact, amounted to misreading of the evidence, and this caused miscarriage of justice."
' We feel that the above noted principle is fully applicable to the facts of the present case. In our view in the circumstance, the statements of these eye-witnesses taken in their entirety do not help the prosecution case. The counsel for the State admits this legal position and does not support the judgment of the trial Court on this point. He however contends that since these eye-witnesses had fully supported the prosecution case in their statements recorded by the Committing Magistrate, the learned Sessions Judge should have transferred those statements to the Session's file under section 288, Cr. P. C, and then should have relied upon them after treating the same as evidence in the case. Ho further argues that this Court has got the same poorer and verbally prays that the statements of these eyewitnesses recorded by the Committing Magistrate now be transferred under
(1) PLD 1970 SC 56 section 288, Cr. P. C. To Sessions file and treated as evidence in the case. This request is vehemently opposed by the defence counsel on more than one ground. He firstly contends that in view of the provisions of Law Reforms Ordinance, 1972 (Ordinance No, XII of 1972), section 288, Cr. P. C. Is no longer part of the statute. Reference is made to Items Nos. 99 and 105 of the Schedule of this Ordinance. Under the said Item No, 105, Chapter XXIII of the Code of Criminal Procedure which includes section 288, Cr. P. C., was omitted. According to the defence counsel, therefore, section 288, Cr. P. C. Is not in existence and consequently cannot be invoked in this case. On the other hand the State Counsel relies upon subsequent Law Reforms (Amendment) Ordinance, 1976 (Ordinance No, VIII of 1976). Section 5 of this Ordinance is the saving section and first part of clause (b) of this section is relevant for this case which is reproduced below : "Section 5. Saving.-Notwithstanding anything contained in this Ordinance- ' any inquiry into a case triable by the Court of Session or High Court in which charge was framed, or shall be proceeded with and completed as if the provisions of the Schedule of this Ordinance relating to amendments in the Code of Criminal Procedure, 1898 (Act V of 1898) bad not come into force: ' Provided that.
' It is not denied that in this case charge was framed by the Magistrate against the appellants on 7.6-1975, and they were committed to the Court of Session for trial on the same day. Since admittedly the charge was framed against the appellants before the target date i,e, 21-12-1975, the old procedure contained in Chapter XXIII including section 288, Cr. P. C. Would be applicable to the present case. Hence for the purposes of this case section 288, Cr. P. C. Would be deemed to be in existence.
8. The next question which falls for determination is whether the powers under section 288, Cr. P. C.
Can be exercised by a High Court while disposing of a Murder Reference alongwith a Criminal Appeal against judgment of a Sessions Judge/Additional Sessions Judge convicting and sentencing the accused under section 302, P. P. C. After the conviction of the appellants under section 302/34, P. P. C, by the Sessions Tudge, Dera Ghazi Khan, they filed the present appeal under section 410, Cr. P. C. The learned Sessions Judge has also submitted the case to this Court under Chanter XXVII (section 374, Cr. P. C.) for the confirmation of sentence of death awarded to Gullan appellant by the trial Court. According to the State Counsel a High Court can exercise this power as the expression "the Presiding Judge" used in section 288, Cr. P. C. Includes the Presiding Judges of a High Court disposing of Murder Reference as well as Criminal Appeal against the judgment of a Sessions Judge/Additional Sessions Judge. Section 288, Cr. P. C. Is part of Chapter XXIII (sections 266 to 336) which deals with trials before High Courts and Courts of Session. Thus if there is a trial of a criminal case before a Court of Session or a High Court, the procedure provided for or contained in Chapter XXIII would be applicable and consequently powers under section 288, Cr. P. C. Can be exercised by a High Court or a Court of Session as the case may be. However admittedly the present case is not before us under the said Chapter XXIII of the Code. This appeal as mentioned above is before us under Chapter XXXI and the Murder Reference has been submitted by the trial Court under Chapter XXVII of the Code. This Court therefore while dealing with the appeal and the Murder Reference exercises appellate jurisdiction which is quite distinct from its original jurisdiction.
The High Court therefore has got two separate jurisdictions-original and appellate. When there is original trial before a High Court under Chapter XXIII, it exercises original jurisdiction and while doing so the expression "the Presiding Judge" used in section 288, Cr. P. C. Will include a Judge of a High Court. However in the instant case, the trial of the appellants was held by the Sessions Judge, Dera Ghazi Khan, under the same Chapter XXIII of the Code. After their conviction the case before us is on the appellate side under Chapters XXXI and XXVII of the Code, The expression "the Presiding Judge" will not include a Judge or Judges of a High Court while disposing of a criminal appeal and a Murder Reference in exercise of its appellate jurisdiction under the said Chapters XXXI and XXVII of the Code. The disposal of the present appeal and the Murder Reference by no stretch of imagination can be termed as trial before the High Court as contemplated by Chapter XXIII of the Code. After careful consideration of the relevant provisions of law we are of the view that the expression "the Presiding Judge" used in section 288, Cr. P. C. Is referable to a Sessions Judge/Additional Sessions Judge or a Judge/Judges of a High Court while! Dealing with a trial of a criminal case on the original side under Chapter XXIII of the Code. On the other hand a Judge or Bench of Judges of al High Court while disposing of a criminal appeal alongwith a Murder Reference B against a judgment of Sessions Judge/Additional Sessions Judge cannot be covered by the said expression "the Presiding Judge". The result is that the statements of the eye-witnesses recorded during the inquiry by the Committing! Magistrate cannot at the appeal stage be transferred under section 288,1 Cr. P. C. And treated as evidence in the case.
9. The learned State Counsel has further argued that the statements of the eye-witnesses recorded by the Committing Magistrate be brought on the record as additional evidence under sections 428 and 375, Cr. P. C. No doubt a High Court has got wide powers under sections 428 and 375, Cr. P. C.
While dealing with a Criminal Appeal and a Murder Reference, to record additional evidence in the case but we have to see whether this power should be exercised in favour of the prosecution at this stage or not. It is not denied that these provisions are not to be utilised at the appellate stage to cure the infirmities or fill up the lacuna in the prosecution case. It I well settled now that such power is to be exercised only where the additional evidence was either not available at the trial or the party concerned (State) was prevented from producing it either by circumstances beyond its control or by reason of misunderstanding or mistake. None of these things is available to the prosecution in the instant case. It is nobody's case that the statements of these eye-witnesses recorded by the Committing Magistrate were not available before the trial Court. Similarly there is nothing on the record to show that the Public Prosecutor was prevented from bringing these statements on Session's file by circumstances which were beyond his control or by reason of any misunderstanding or mistake on his part. The Public Prosecutor was conscious of this situation. He cross-examined the eyewitnesses with the permission of the Court. He could easily make a request to the trial Court to transfer the statements on the Session's file and to treat them as evidence in the case. The learned State Counsel admits that the Public Prosecutor could easily get these statements transferred to the Session's-file and that there was nothing to prevent him from doing so but according. To him the Public Prosecutor has rather been negligent and careless to perform his duty. The counsel for the appellants on the other hand contends that the defence cannot be penalised for the inefficiency or carelessness of the Public Prosecutor. In these circumstances we feel no hesitation to reject the verbal request of the State Counsel for the additional evidence to bring the statements of the eye-witnesses recorded by the Committing Magistrate, on the Session's file and treat them as evidence in the case. There is another serious hurdle in the way of the prosecution and perhaps it may be for this reason that the Public Prosecutor did not ask the trial Court to transfer the said statements to the Session's file. Even if the statements of the eyewitnesses recorded by the Committing Magistrate are brought on the Session's file and treated as evidence in the case, still the prosecution cannot succeed in this case for the reason that fie said statements would be subject to the same test of credibility and reliability and would require strong corroboration from independent source which is not available in this case. In these circumstances we find no legal justification to bring on record as additional evidence the statements of the eye-witnesses recorded by the Committing Magistrate during the inquiry.
10. The result is that the prosecution has miserably failed to prove its case against the appellants.
We therefore, accept this appeal, set aside the conviction and sentences of the appellants and acquit them. They shall be released forthwith if not required in connection with any other case.