1. ' Mustaq HUSSAIN, J.-Saleem Pervais alias Peji son of Ohulam Mohy-ud-Din, aged 25 years, Iftikhar Ahmed alias Khan) son of Ahmed Din, aged 38 years, Muhammad Aslam altar Achhi sou of Pir Muhammad, aged 24 years and Inayat Hussain alias Vimto son of Shamasud Din, aged 30 years, all residents of Lahore stood their trial before Chaudhary Faiz Ahmed Allem, Additional Sessions Judge, Lahore, for having committed the murder of Latif alio Teefa deceased, a resident of Shahi Mohalla, Lahore. By his order dated 5-11.1971, the learned Additional Sessions Judge convicted all the four accused under sections 302/34, P. P. C. He sentenced Saloom Pervaiz alias Peji to death while the other three have been sentenced to transportation for life. A sum of Rs, 1,000 was imposed upon each accused as fine and in default a period of eia months' rigorous imprisonment had to be undergone. The convicts have filed Criminal Alpopeale Nos. 803, 804, 813 and 831 of 1971 and the case is also before us for the confirmation of the death sentence under section 374 of the Code of Criminal Procedure.
2. ' The prosecution story is that Echols (P. W. 7) and his wife's brother Latif ella Teefa deceased lived in opposite houses in the Shah' Mohan*, Lahore. On the night of 15-54970 MN. Bholi (P. W. 10) rife of BM (P. W. 7), along with her husband were sleeping in front of their house. On the poem road while Latif alias Teefa deceased was similarly sleeping in front of his own house. At 3 a.m. Peji appellant who is a kanjar and lives at the Fort Road accompanied by Iftikhar alias Khans another kanjar from the Shahi Mohan, Achbi another kanjar from the Chait Ram Road and Vimto son of Dulls, a resident of Sialkot, came to the place where Latif was asleep. Peji called him and thus woke him up. Bhoti woke up on bearing the noise. Sabir son of Allah Ditta and Siddiq Gaddi resident of Ravi Road also reached there. Peji called upon Latif to return Ms. Bashiran, who was Vimto's keep and whom the former was supposed to be keeping foe 2/3 days in his house. In the alternative, he was threatened with dire consequences.
3. ' Latif informed Peji that Mst. Basbiran had left his place whereupon Peji hit Latif with a mailed fist, also known as knuckle buster, on his face which landed on his nose and blood started flowing.
4. Bhola, etc. Rescued Latif from their clutches and placing him in a tongs proceeded towards the Mayo Hospital for having him treated. When they reached near the tube-well at the Fort Road the appellants stopped the tonga and Latif was pulled out of it by Vimto and AchbL Iftikar caught hold of him by his arm and Peji fired at him with his pistol. The P. Ws. Got down from the tongs and tried to rescue him again. Latif had meanwhile fallen down with a bullet in his right rib and the appellants ran away shouting lalkares. Peji fired 2/3 shots while running away. Latif died of the injury at the spot.
5. ' The F. I. R. Discloses that this occurrence was seen by Siddiq Gadd!, Sabir, Bholi and Bhole in the light of an electric bulb. Bhola left his companions and the dead body at the spot and reached Thane Tibbi City where he lodged the first information report (Exh. P. B.) at 3 a.m. On 15-5-1970.
6. Report was registered by Muhammad Siddiq Sub-Inspector (P. W. 11) who investigated the case.
7. ' He reached the place of occurrence, which Is about 300 yards from the police station, at about 4 a.m. Ho prepared the inquest report (Exh. P. B) and injury statement (Bah. P. G.) of the deceased and despatched the dead body to the mortuary. He found no blood on the spot. Having been informed by Saleem Pervaia that be had given the revolver, the weapon of offence, to one Rafiq Shah, the latter led to its discovery from a heap of stone lying by the northern wall of the Dental Hospital. The revolver contained three empties Exh. P. 2/l-3 which were also taken into possession.
8. Having completed the investigation he cherished the accused with the result already indicated above.
9. ' At the trial, the appellants pleaded innocence. Peji also stated that the murder had been committed by Rafiq Shah who had successfully wangled out of the case although he bad made an extra-judicial confession before Mien Axis Ahmed alias iiji, etc. He also stated that Latif C. W. Has impersonated as Siddiq.
10. ' At the trial the prosecution produced 11 witnesses, one was examined by the defence and two were summoned as Court-witnesses. Dr. Nusrat Ullah who performed tte post-mortem examination on the body of the deceased appeared as P. W.
9. He testified to having found the following injuries on the dead body:
(1) A fire-arm wound of entry 3/16' x 3/16/right infra clavicular region in the middle 3/4 below the lower border of tight clavicle. Edges of the wound were laoerated, inverted with slight tatooing of the margins. Bullets had pierced. The muscles of chest, first rib, pleura, right lung apex through and through upper part of media stinum and was lyng in the upper lob of the left lung which was removed, sealed and handed over to the Police.
(2) An abrasion r u 1/8' bridge of nose. Nosel bone was intact.
(3) An abrasion r x r right inner ankle.
11. ' Right pleural cavity contained 2200 c.c. Of blood which was clotted. Media stinum was infiltrated with clotted blood. Superior vanacava was damaged on right side. On left side there was extensive collection of clotted blood under the pleura on medial aspect. Little blood was present in left pleural space. Heart was empty. Skull bone was intact. Brain was healthy. All the organs in the abdomen were healthy. Stomach contained 3 ozs. Of semi-solid food contents in the process of digestion. Liver kidneys were pale. Blader was empty.
12. ' The cause of death in the opinion of the doctor was haemorrhage and shock caused as a result of injury No, 1 which was sufficient in the ordinary course of nature to cause death. He found all the injuries to be ante-mortem and Nos. 2 and 3 to be inflicted by a blunt weapon. The testimony of the doctor proves that the deceased met with a violent death as a result of a fire-arm injury, the weapon having been fired from a close range because the margins were tattooed.
13. ' The recovery of the revolver has been sought to be proved by the evidence of Bhola (P. W. 7) and Sardar Muhammad (P. W. 4). P. W. 4 who is a shopkeeper of Malipura is the father of the deceased.
14. He has testified that one Rafiq while in custody offered to lead to the place of recovery. He got revolver P. 1 recovered from underneath heap of stones near the wall of the Dental Hospital. The revolver at that time contained three empties Fxh. P. 2/1-3. Besides the fact that the statement of this witness bristles with contradictions with his previous statement before the Committing Magistrate and the fact that his daughter Mst. Bholi P. W. Runs a brothel in the She hi Mohalla, the fact remains that this revolver has not been produced by Peji appellant or at his instance.
15. ' Under section 25 of the Evidence Act statements made to the police while in custody which are in the nature of confession cannot be proved as against a person accused of any offence because of section 25 of the Evidence Act. Section 27, however, acts as a proviso to this section and lays down that when any fact is deposed to and discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information whether it amounts to an information or not, as relates distinctly to the fact thereby discovered, may be proved. In the present case the discovery is not directly relatable to the information received from Peji who is the accused person in this case. It has been held by a Full Bench in Sukhan v. Emperor (1) that "Having ascertained the fact discovered we proceed to determine how much of the information supplied by the accused may be moved. {{FOOT NOTE}}
(1) AIR 1929 Lah. 344 {{FOOT NOTE}} The language of section 27 when analyzed, shows that the Legislature has prescribed the following two limitations in order to define the scope of the information provable against the accused: (1)
16. The information must be such as has caused the discovery of the fact. This condition follows from the phrase "discovered in consequence of information" and also from the expression "thereby discovered" used by the Legislature with reference to the fact. In other words, the fact must be the consequence, and the information the cause of its discovery. The information and the fact should be connected with each other as cause and effect, If any portion of the information does not satisfy this test, it should be excluded. (2) The information "must relate distinctly" to the fact discovered. The word "relate" means to "have reference to" or "to connect"; and the word "distinctly" means clearly, unmistakably, decidedly or indubitably, to put in a different language, the information must be clearly connected with the fact.
17. ' These conditions, when combined lead us to the conclusion that only that portion of the information is provable which was the immediate or proximate cause of the discovery of the fact.
18. Anything, which is not connected with it, not as its immediate or direct cause, but as its remote cause, does not come within the ambit of the section and should be excluded.
19. ' In the present case I have no hesitation in holding that the confessional statement that the accused had pushed the boy into the well is wholly inadmissible, as it relates to a separate matter and has no connexion with the possession of the ornaments by Allah Din which was the only fact discovered. Nor do I think that the statement that the prisoner had removed the karas from the boy can be regarded as the immediate cause of the discovery. A man may remove the ornaments from the body, but he may not give them to Allah Din. The removal is not the proximate cause of the ornaments being found in the possession of Allah Din. Some other act must take place after the karas have been removed from the boy and before they come into the custody of Allah Din. That intervening act is the pledging of the ornaments by the prisoner with the latter, and it is only this statement in consequence of which the discovery was made.
20. ' It is conceded by Mr. Skein, who bas argued the case fa the Crown with complete fairness, that, so far as section 27 is concerned, this is the only selfcrlminative statement which is allowed by the language employed by the Legislature. The learned counsel, however, urges that evidence can also be given of so much of the remaining confession as may be necessary to explain the portion admissible under that section. It is true that section 39, Evidence Act, which has been relied upon by Mr. Sleem, lays down the rule that when any statement, of which evidence is given, forms part of a longer statement evidence shall be given of so much and no more of the statement as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement and of the circumstances under which it was made. I do not think that this section can be invoked for the purpose of letting in a confession in respect of which the bar created by sections 24, 25 and 26, Evidence Act has not been removed by section 27.
21. ' It was never intended that a matter, which has been expressly ruled out, should be allowed to come in the garb of an explanatory statement. I need not, however, dwell upon the subject, because, in the case before us, the portion of the confession, which I consider to be admissible does not stand in need of any explanation from inadmissible portion. My answer to the question submitted to us is that the statement that the accused had pledged with Allah Din, the karat subsequently recovered from the latter, is admissible under section 27, Evidence Act, but that the rest of the incriminating statement cannot be received in evidence."
22. It is said that Peji informed the police officer that he had given the revolver, the weapon of offence, to one Rafiq Shah. He, therefore, joined Rafiq in the investigation and it was at the instance of Rafiq Shah that the revolver was recovered from the heap of stones referred to above. The information given by Peji to the police was not the proximate cause of the recovery of the weapon itself. The weapon may well have been destroyed by Rafiq and in that case it would never have been discovered. In these circumstances, it is not possible to hold that the recovery of the weapon at the instance of Rafiq Shah would be admissible in this case for use against Peji nor the statement of Peji to the effect that he made over the revolver to Rafiq Shah be of any consequence. The so- called recovery of the revolver is, therefore, rejected as inadmissible.
23. ' The eye-witnesses in this case are Bhola (P. W. 7), his wife Bholi (P. W. 10) and Latif alias Siddiq brother In-law of the deceased C. W.
1. The F. I. R. Clearly states that this occurrence had been seen by Siddiq Gaddi (Gaddi means a person who drives a cart, Le. Gud). Several summons were sent to him by the learned Committing Magistrate but invariably a report was received that no one of the name of Muhammad Siddiq was in existence at the address given. Bhola complainant ultimately gave him up as a witness by way of an application to the Court through the Public Prosecutor with the specific allegation that he was not supporting the prosecution. Ma. Bholi who appeared before the trial Court had stated in cross- examination that Muhammad Siddiq despite being her brother-in-law has not supported her case during the investigation or before the Committing Court. She however, stated that he was not willing to come and support the case of the prosecution. Bholi (P. W. 10) also refers to him as Siddiq Gaddi. She did not state before the C. M. Or anybody else that Siddiq was also known as Wit She, however, stated in the trial Court that since Latif was her brother-in-law and he was named as such by his parents but since her brother's name was also Latif they started calling him Siddiq. This cock-and-bull story has emerged for the first time in the trial Court. In the F. I. R. Bhola the complainant (P. W. 7) has referred to the deceased as his brother-in-law and has also given the alias of all persons who have been named by him and one who had the name of Siddiq has been giver only as Siddiq Gaddi and no relationship has been ascribed to him either. He says before the trial Court that Ma. Bholi does not run a brothel while Bhola has stated so. He has stated that when the incident took place he used to ply a Gud but for more than 4/5 years he has started working as a labourer. This statement he was malting on 28-1-1971 and, therefore, on the date of occurrence he was not plying a Gud and there was no reason to call him a Gaddi. Although he claims that his name was Muhammad Latif in the elkalusama none was produced. Although he claimed that Latif deceased was his wife's brother and Bhola was his sister-in-law's husband, he did not disclose it to the Investigating Officer.
24. ' He admitted that he had never obtained a licence to drive a Gud. He was not in a position to answer any question in the affrmative which could have proved that he had ever been plying a Gud. We have, therefore, no hesitation in holding the Latif alias Siddiq (C. W. 1) is not Siddiqi the person who was named in the F.1. R. As an eye-witness and the statement that he has made cannot be relied upon in the circumstances of the case.
25. ' Sabir another eye-witness named in the F. I. R. Had been present at the spot but was not produced at all and it was stated that he hu ban won over.
26. ' We are now, therefore, left with the two alleged eye-witnesses Bhola (P. W. 7) and Bholi (P. W. 10) his wife. He recounted the prosecution story. He stated that Peji and Latif deceased grappled with each other and Peji gave a fist blow on the nose of Latif and the same started bleeding. The F. I. R.
27. Shows that at the time when the blow was given Peji was wearing a knuckle buster on his head.
28. There is no suggestion that this blow grazed his face. On the other hand. The Impression that the evidence gives is that Latif received this blow squarely on his nose. The nose is a delicate part of the body and a fist blow given by a young man with full force could very easily fracture it. When, however, a mailed fist or knuckle buster le being used extensive damage to the nose both inside and outside shall be caused. Strangely enough the statement of the doctor does not show anything but an abrasion r x 1/8' on the bridge of the nose. He pointedly says that the nasal bone was intact. It is difficult for us to believe that such an injury could be the result of a blow given with a knuckle buster by a young man.
29. ' He goes on to say that all the four accused then ran away from the spot. One would gather the impression that they had come only with the intention of chastising the deceased and having done so they made good their escape. This, however, would not be so. Bhola, Sabir and a Yak kewala along with Latif got into a tonga to go towards the hospital. It passes our comprehension as to what was the necessity of taking him to hospital because the blow or its result did not warrant such an action, Moreover, the police station is at a stone throw from the place of occurrence. The natural conduct would have been for these fellows to have proceeded straight to the police station to lodge a report about the incident and we find it difficult to believe that if this incident were correct they would have adopted a course, other than an immediate visit to the police station.
30. ' Having once got into the tongs they proceeded towards a portion of the Port Road which apart from not being on the route to the hospital has been blocked permanently for a long time. These were all inhabitants of this locality and knew this fact full well. If, therefore, they intended to go to the hospital why did they adopt a route which did not lead them there and was in any case permanently blocked, it is a question which has not been answered at all in this case. We, therefore, cannot believe this cart of the story either. The reason for the presence of the deceased at the j spot where he is said to have been killed is just unacceptable.
31. ' He then goes on to say that when they had covered about a distance of 100 yards and had reached a place undernearth the water tank near the tube-well, the four accused again appeard and stopped the tongs. Achhi and Vimto accused pulled Latif down from the tongs, Kharo accused caught hold of Latif by his arms and asked Peji accused to fire at him saying "Mar do gall dekko Jed ga". Then all the four accused ran away XI nd Laid died there. He did not state of his own accord that this lalkara was followed by Peji's firing at the deceased. In any case this lalkara or exhortation finds no mention in the P. I. R. Which is a pretty detailed document.
32. ' Since this witness did not say of his own accord that the lalkara was followed by Pejis' firing the revolver, a direct question was put to him by the learned P. P. And in answer to that the witness said that the deceased died of a bullet wound. He clearly stated that Peji and all the three accused fired the shots and ran away. He, however, proceeded to resite from the statement and added that the revolver was in the hand of only one accused. An objection was raised that this latter part of the statement had come after a large number of suggestive questions by the learned counsel for the complainant as well as the learned P. P. And that it toot a long time to get this answer from him.
33. The record and the observation by the learned Sessions Judge shows that the objection is correct.
34. He was thereafter put several questions by the P. P. As to what followed, but he repeated the reply that his statement finished there, After considerable exhortation, however, he came out with the assertion that he went to the police station and told them about the incident and thereafter along with two or three residents of the locality and the police, the dead body was taken to the hospital.
35. ' This witness is a bad character and his name Is mentioned in bundle 'A' of Police Station Tibbi.
36. Before the Committing Magistrate, he admitted that he had been convicted in several cases and of course he denied it before the trial Court. He has stated before the C. M. That he and his wife Bholi ran a brothel, but he denied this also in the trial Court. This witness tried, however, to say that P. W.
37. Latif was referred to by him as a Yakkewala all through and that he did not know even his name.
38. This is in spite of his relationship with Bholi. He further stated that when the accused persons came initially, they were empty-handed but his own wife Bholi contradicts him. He categorically says that neither be nor Bholi nor Sabir called the Tongawala and is again contradicted by her who says that "she saw a tonga going nearby and she, Bhola, and Sabir got Latif sit in the tonga".
39. ' He admitted that if one has to proceed to Mayo Hospital from the house of Laid be would proceed via Novelty Chauk, Bhati Gate, Tibbi Police Station or Novelty Chauk, Naggaza. It is, therefore, clear that the place where the firing incident is said to have taken place is not en route Mayo Hospital.
40. ' He was pointedly asked if Rafiq Shah was not the real culprit and he denied it. Bholi appeared as P.
41. W. 10 and repeated the story. She stated before the Committing Magistrate that Peji had a revolver in his left hand. She, of course, would not say so before the trial Court. She stated before the C. M.
42. That Peji had given a hockey blow on the ankle of Latif deceased in the earlier incident. She denied it before the trial Court and had to be confronted. Several different routes were suggested to her which led to the Mayo Hospital and in each case she had to admit that the water tank does not fall in the way. She stated before the C. M. That she did not know Sable before the incident, but in the trial Court she gave a statement to the contrary. She denied having said so before the C. M. And had to be confronted. She had even stated before the C. M. That she did not know where Siddiq resides although at the trial she admitted that she knew the address.
43. ' Her statement bristles with contradictions and she had to be constantly confronted with the statements made by her before the Committing Magistrate. We do not believe her statements.
44. ' Ch. Muhammad Siddiq (P. W. 11) who investigated the case had to admit that the road was blocked and only pedestrians could cross the blockade. He had to admit that several persons including the Chairman of the B. D. And other respectable persons appeared before him to state that Rafiq Shah had, in fact, fired the shot. He informed the D. S. P. About it.
45. ' The net result is that there is no evidence worth the name on the record which could connect the accused with the offence. We, therefore, accept the appeals, set elide the conviction and sentences of all the appellants and refuse to confirm the death sentence. We have already, by a short order directed that the appellants be released if they are not wanted in any other case. .0111=.