AHMAD DIN Versus THE STATE

1. M. R. KHAN, J.‑-- The appellants, Ahmad Din and Sakhawat Ali Shah, were tried under section 302/34 of the Pakistan Penal Code for the murder of Pir Ghulam Waris Shah, and under section 397/34 of that Code for committing robbery in the house of the deceased Pir Ghulam Waris Shah m course of the same transaction. Both of them were sentenced to death for commit ting the murder and were also sentenced to rigorous imprisonment for 7 years each for committing robbery. The sentence of imprisonment was to take effect and to run concurrently in case the sentence of death imposed on them was substituted by a lesser sentence by the High Court. The appellants preferred an appeal against their convictions and sentences. The appeal and the death reference were heard by a Division Bench of the High Court of West Pakistan, Lahore, and were disposed of by a single judgment. The High Court dismissed the appeal and confirmed the sentence of death imposed on each appellant.

2. Pir Ghulam Waris Shah, deceased was a retired Government servant. He was a widower and was living alone on the ground floor of his house at Fateh Sher Road, Lahore. The first floor of that house was occupied by Muhammad Rafi (P. W. 23) as a tenant of the deceased. The deceased had three sons, namely, Inam Waris (P. W. 14), Ihtesham Waris (tP. W. 2) and Maqbool Waris and one daughter Mst. Ismat Khalid (P. W. 13). Mrs. Khalida Waris (P. W. 12) is the wife of Maqbool Waris. The deceased's sons, daughter and daughter- in‑law were all officials serving in various departments and were staying in Lahore separately from the deceased, but Mrs. Khalida Waris was a Lecturer in Rawalpindi.

3. The prosecution case was that on the 8th January 1966, Inam Waris came to the house of the deceased in the afternoon, but found the outer door of house chained from inside. He entered the house through another door, went to the bedroom of the deceased and found him lying dead with multiple incised and stab injuries. He called Muhammad Rafi, the tenant in occupa tion of the first floor of the house and enquired from him about the deceased's servant Ahmad Din, the appellant No. 1. Muhammad Rafi told Inam Waris that Ahmad Din and his own servant Nur Muhammad were missing since the 6th January 1966. Inam Waris found that the deceased's house was ransacked and the jewellery boxes were lying open in one of the rooms. He sent a report about the incident to the Police Station Mozang, Lahore, through Muhammad Rafi. Ch. Sardar Khan, a Sub‑Inspector of Police attached to that police station (P. W. 26) received the report, went to the spot, held an inquest and despatched the dead body to the morgue for post‑mortem examination. He took into possession blood‑stained earth and three copies of The Pakistan Times, dated the 6th, 7th and 8th January 1966, which were lying in the verandah of the deceased's house. Meanwhile Saeed Ahmad, S. H. O. (P. W. 27) of Mozang Police Station reached the spot and took over the investigation. He took possession of two empty jewellery boxes, one account of milk from the milk‑seller Asghar Ali (P. W. 3) and a list of looted properties furnished by Mrs. Khalida Waris.

4. On the 9th January 1966, Ch. Sardar Khan, Sub‑Inspector, accompanied by Muhammad Raft left for Sillanwali, the native place of Nur Muhammad, the servant of Muhammad Raft. They took the assistance of Mukhtar Ahmed (P. W. 21), a local Sub- Inspector of Pc lice. They hired a tonga of Rashid (P. W. 20) and went in search of Nur Muhammad. After making attempts in different places and Chaks, they were proceeding towards Sillanwali when they saw Nur Muhammad and the appellant Ahmad Din coming to the road. Ch. Sardar Khan arrested them. At that time, Nur Muhammad was carring a box on his head and the appellant Ahmad Din was carrying an attach ‑case. These were seized from them and were opened with the keys produced by them. Four items of ornaments, some clothes, one torch and a purse containing one ten‑rupee currency note were recovered from the box in possession of Nur Muhammad. Five items of ornaments, some clothes and two bunches of keys were recovered from the attache‑case in possession of the appellant Ahmed Din. Nur Muhammad and Ahmad Din were produced before the Additional District Magistrate, Sargodha on the date of their arrest, and they were brought to Lahore on the 10th January 1966, at about 10‑30 p.m. On the 11th January 1966, the appellant Ahmad Din led to the recovery of a blood stained knife concealed under the banana plants near Ganda Nala. This knife was found on examination by the Chemical Analyst and the Serologist to be stained with human blood. Meanwhile, Saeed Ahmad, S. H. O. proceeded to Hazara in search of the appellant Sakhawat Ali Shah whose house was in village Jhallo within the district of Hazara. With the assistance of local A. S. I. Shuja Ali Khan (P. W. 8) and the two local men Wazir Muhammad (P. W. 6) and Muhammad Ayub Khan, Lambardar (P. W. 7), Saeed Ahmad, S. H. O. secured the arrest of Sakhawat Ali Shah from his house in village Jhallo. This appellant then produced six items of ornaments tied in a handkerchief lying in a tin‑box. Three ten‑rupee currency notes were also recovered from that box. He also produced some clothes. All these articles were taken into possession. On the 15th January 1966, the appellant Sakhawat Ali Shah led to the recovery of one knife and one radio from the garage of Muhammad Afzal Ullah (P. W. 28) at Gulberg where he was serving before the incident. Of these, the knife was found on examination to be stained with human blood.

5. On the 25th January 1966, Nur Muhammad on his prayer, was granted pardon by the District Magistrate, Lahore. Accord ingly, his confessional statement was recorded the next day by Mr. Sarfaraz Malik, a Magistrate of the First Class, Lahore. On post‑mortem examination, five incised wounds and four stab wounds were found on vital parts of the body of the deceased, besides multiple abrasions. Death, in the opinion of the doctor, was due to the incised and stab wounds.

6. The recoveries of ornaments and clothes from the possession of the appellants and the approver Nur Muhammad were believed by both the trial Court and the High Court. They were also fully satisfied on the basis of the evidence of Mrs. Khalida Waris, Mst. )smat Khalid, Khadim Hussain (P. W. 17) and Haji Muhammad (P. W. 18) that the ornaments in question were duly identified as the properties belonging to the family members of the deceased. Mrs. Khalida Waris stated that she was married to the deceased's son, Maqbool Waris on the 10th August 1964. It appears, from the jewellery receipt (Exh. P. S.) that two days before her marriage one Guluband (necklace) was supplied by Butt & Co., Jewelers, Lahore. This receipt corroborates the evidence of Mrs. Khalida Waris as to the identity of the necklace which was one of the looted ornaments. As regards the recovery of the two knives on the pointing out of the two appellants, the trial Court could not rely on those recoveries, although the knives were found on examination by the Chemical Analyst and the Serologist to be stained with human blood. The trial Court did not also put any reliance on the recovery of the radio on the pointing out of the appellant Sakhawat Ali Shah. Learned Judges of the High Court, however, having regard to the evidence of the recovery witnesses, believed that the knives and the radio were recovered as respectively pointed out by the two appellants. As regards the identification of the clothes, both the trial court and the High Court, having regard to the evidence of the washerman Muhammad Abdullah (P. W. 16) and the dhobi Marks on the clothes identified by that witness, believed that these were the clothes of the deceased.

7. The approver Nur Muhammad was examined in the trial Court as P. W.

25. The confessional statement of the approver, his statement in the committing Court and the statement made by him in examination‑in‑chief in the trial Court are the same in essential particulars. In all these statements, the approver uniformly stated as to how he and the two appellants made a conspiracy to murder the deceased and gave a detailed account as to the manner in which they murdered him and the parts played by each in committing the murder and also the time and manner in which he and the appellant Ahmad Din were arrested with clothes and ornaments. The approver fully implicated himself as also the two appellants for the murder of the deceased and the robbery committed in the deceased's house.

8. In his examination‑in‑chief in the trial Court, the approver's attention was drawn to his confessional statement. He admitted to have made that statement and that it was correct. He further stated that he thumb‑marked the confessional statement after it had been read out to him by the Magistrate: His examination‑in‑chief was concluded on the 24th September 1966. He was also partly cross‑examined on that day. He did not till then resile from his earlier statements. He was further cross‑examined on Monday, the 26th September 1966. On that date, the approver, during cross‑examination by the defence, retracted his confession and made certain statements contrary to his deposition in the committing Court and examination‑in‑chief in the trial Court. Thereupon, he was declared hostile and was cross‑examined by the Public Prosecutor with the permission of the Court. After his cross‑examination was over, the statement of the approver made in the committing Court was transferred under section 288 of the Code of Criminal Procedure at the request of the Public Prosecutor.

9. Having regard to the approver's deposition in examination‑in‑chief in the trial Court and his statement in the committing Court as corroborated by the recoveries of ornaments and clothes from the possession of the appellants and the further fact that they had absconded immediately after the occurrence, the trial Court found both the appellants guilty under sections 302/34 and 397/34 of the Pakistan Penal Code. In maintaining the convic tions and sentences of the appellants under the said sections, the learned Judges of the High Court also relied on those materials. Besides, the learned Judges believed the recovery of the two knives on the pointing out of the appellants which were found to be stained with human blood.

10. The appellant Ahmad Din made a petition from jail for special leave to appeal. The other appellant made a petition in Court for special leave to appeal. Leave was granted in both the cases to consider whether the statement of the approver made in the committing Court, which was transferred under section 288 of the Criminal Procedure Code, could be used as evidence against the appellants without specifically drawing his attention to the said statement by having recourse to section 145 of the Evidence Act. This question was raised both in the trial Court and the High Court on behalf of the appellants. The trial Court, for the elaborate reasons given by it, was of the view that the approver had not made his confessional statement or the statement in the committing Court under any pressure; that these statements were true and voluntary and that his statement in the committing Court transferred under section 288 of the Code became substantive evidence in the case. Before the learned Judges of the High Court, a Full Bench decision of the High Court of East Pakistan in the case of Chhota Gada v. State (P L D 1964 Dacca 256), was cited in support of the contention that the approver's statement in the committing Court could not be used as evidence without drawing his attention to that statement. In the said Full Bench case, it was held that the procedural provi sions of section 145 of the Evidence Act .are to be complied with as a condition precedent to the admission in evidence of a previous statement in the committing Court under section 288 of the Code. The learned Judges, however, did not follow the said Full Bench decision, but preferred the decision of the Supreme Court of India in the case of Bhagwan Singh v. State of Punjab (AIR 1952 S C 214), and that of the Privy Council in the case of Fakira v. King Emperor (A I R 1937 P C 119), and took the view that once a statement of a witness is transferred under section 288 of the Code of Criminal Procedure, it is a statement of evidence for all purposes without limitation.

11. Section 288 of the Code of Criminal Procedure runs thus:

12. "The evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the Presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872."

13. The expression "for all purposes subject to the provisions of the Evidence Act, 1872" occurring in section 288 was construed by the Privy Council in the case of Fakira v. King‑Emperor. In that case, a witness in his evidence in the trial Court did not implicate one of the accused at all, although he had implicated that accused in the committing Court. The statement of that witness in the committing Court was transferred to the Sessions record under section 288 and was treated as evidence. To this, an objec tion was raised on behalf of the accused that the witness's previous statement in the committing Court could only be used under section 155 of the Evidence Act with the object of impeaching his credit. Their Lordships of the Privy Council rejected this conten tion with the following observation:‑

14. "But this contention is clearly untenable in view of the express provisions of section 288 of the Code that it is to be treated as evidence in the case for all purposes; the words 'subject to the provisions of the Evidence Act, 1872' cannot be read so as to limit the purposes for which it may be used."

15. In the present case, the approver's confessional statement, his statement, in the committing Court and the deposition in examin ation‑in‑chief at the trial are in complete accord in essential particulars. There does not appear any contradiction between his statement in the committing Court and the statement made by him in examination‑in‑chief at the trial. It was only in course of cross‑examination by the defence counsel that the approver retracted his confession and resiled from his previous statement in the committing Court. When there was no contradic tion between his previous statement in the committing Court and his deposition in examination‑in‑chief in the trial Court, the prosecution was not in need of complying with the formalities prescribed by section 145 of the Evidence Act and was entitled to use his statement in the committing Court as transferred under section 288, Criminal Procedure Code, for the purpose of corroboration of his deposition in examination‑in‑chief at the trial under section 157 of the Evidence Act for the reason that this section is as much a provision of the Evidence Act as section 145 thereof. The prosecution, at its option, could have also cross‑examined the approver under section 145 of the Evidence Act as to his previous statement in the committing Court and his attention could have been drawn to it in order to bring out the contradictions between that statement and what was stated by him in the trial Court in cross‑examination by the defence. But this course not having been adopted in this case, the prosecution was not disentitled to use the statement transferred under section 288 of the Criminal Procedure Code as evidence for the purpose of corroboration under section 157 of the Evidence Act. Section 288 of the Code, read with sections 145 and 157 of the Evidence Act makes it quite clear that when a witness in his examination‑in chief in the Court of Sessions gives the same evidence as in the committing Court, but resiles from it in cross -examination, his evidence in examination‑in-chief can be corroborated by using his previous statement in the committing Court and, for this purpose, there is no need for compliance with the provisions of section 145 of the Evidence Act for the simple reason that there is no contradiction with which the witness can be confronted. If, however, a witness is hostile from the start and makes statement in examination‑in‑chief at the trial different from the statement made in the committing Court and it is intended to transfer his statement in the committing Court to the Sessions record under section 288 of the Code of Criminal Procedure for being used as evidence, it is necessary to draw the attention of the witness to that part of the statement which is inconsistent with the statement at the trial. In this view of the matter, the approver's statement in the committing Court, in the instant case, could be rightly used as evidence under section 157 of the Evidence Act for the purpose of corroboration of his deposition in examination‑in‑chief at the trial. Thus, there is no substance in the contention that in this case the previous statement of the approver in the committing Court could not be treated as evidence under section 288 of the Code without drawing his attention to that statement.

16. The facts of the present case are quite different from the facts of the case of Chhota Gada v. State decided by a Full Bench of the High Court of East Pakistan. In the said Full Bench case, one of the witnesses did not mention the name of a particular accused in the committing Court whereas he implicated that accused at the trial. In view of this contradiction, the High Court of West Pakistan was of the view that section 145 of the Evidence Act was attracted in the facts of that case. In that case, the witness's statement in the committing court was not transferred by the trial Court under section 288 of the Code, although he was confronted with his prior inconsistent statement. As the witness's attention bad already been drawn to the contradiction, the High Court of East Pakistan itself transferred the witness's previous statement in the committing Court under section 288 of the Code and treated it as evidence. In the present case, however, there was no incon sistency between the approver's statement in the committing Court and his examination‑in‑chief at the trial. Moreover, the approver's previous statement in the committing Court was transferred under section 288 not by the High Court but by the Court of Sessions. In view of these distinguishing facts, the Full Bench decision of the East Pakistan High Court is not applicable in this case.

17. In this case, both the trial Court and the High Court accepted the approver's evidence in his examination‑in‑chief at the trial as corroborated not only by his previous statement in the committing Court but also by the recoveries of ornaments and clothes fully identified to the satisfaction of those Courts. Even if the recoveries of blood‑stained knives are left out of consideration, as was done by the trial Court, there was abundant evidence to establish the appellants' guilt for the offences for which they were tried. Thus, there is no merit in these appeals, and these are dismissed accordingly.

18. K. B. A. Appeals dismissed.