John Edge, C.J. and Burkitt, J.
1. Zawar Husen, Miru and Phullu have been found guilty of the offence punishable under Section 307 of the Indian Penal Code and have been respectively sentenced to transportation for life. They have appealed.
2. As to Zawar Husen, his contention is that he established an alibi. As to the other two men the contention is that they were not present, and that if Zawar Husen's alibi is believed, the case for the prosecution is entirely shaken and the evidence against Miru and Phullu cannot be trusted.
3. That a deliberate attempt was made to take the life of Imdad Husen some time between midnight and 2 A.M. is beyond doubt. Whoever the persons were who attacked him, they could have had but one intention, and that was to kill him. The question is were these three men, or any of them, members of the party that attacked Imdad Husen
4. Zawar Husen's alibi is that he was in Allahabad up to 9-30 P.M. on the night in question, and could not have caught a train which would have taken him to Bharwari after that hour, and that he could not have ridden from Allahabad to the neighbourhood of Bharwari, where the crime was committed, in time to be present at its commission.
5. To prove the alibi he called one Muhammad Mehdi, who gave the very vaguest evidence as to time. He said that Zawar Husen called on him at 8, 8-30, 8-45 or 9 o'clock that night, and remained with him until he, Muhammad Mehdi, retired to bed. He fixes that hour at 9-30 by the fact that that is his usual hour for retiring. Another witness (from Benares) is called to prove that Zawar Husen was at Muhammad Mehdi's until after 9-30 that night. We have very little doubt that Zawar Husen was doing, what many others in this country have done before, namely, arranging for an alibi in view of his taking part in the commission of a crime of a serious nature. Whether Mr. Muhammad Mehdi was particularly drowsy on the night in question, or whether the other witness' watch, if he had one, was rather fast or inaccurate we care not; nor do we care whether Zawar Husen went to Bharwari by train or on horse-back, for we are absolutely certain that he was present sometime between midnight and 2 o'clock on the following morning and was taking part in the attack on Imdad Husen.
6. Mr. Boys complains that the course adopted by the prosecution in the Court of Session prejudiced his client. Mr. Boys was anxious to show, apparently, in the Court of Session that Zawar Husen could not have travelled by train from Allahabad to Bharwari that night. Some one or more of the witnesses who had been called before the Magistrate were not called in the Court of Session. Mr. Boys, who was defending Zawar Husen in the Court of Session, called one of those witnesses, with the object, apparently, of getting the witness to say that in the Magistrate's Court he had sworn that he had seen Zawar Husen at or near Bharwari Railway Station that night. However, Mr. Boys called this witness, and thereby made him a witness for the defence. He proceeded to examine him, not by asking him what he knew about the ca9e, but by asking him what he had said in the Magistrate's Court. Neither counsel for an accused person nor his client is entitled to cross-examine a witness called for the accused person, unless it appears that that witness is suppressing the truth or is lying or is refusing to give information. Mr. Boys was not entitled at that stage to ask the witness what he had said in the Magistrate's Court. That, at that point, was immaterial. Mr. Boys was entitled to ask the witness as to what he could state of his own knowledge as to the events of that night, and if the witness in giving his evidence showed a hostile spirit in obviously suppressing information or in giving evidence at variance with what he had stated before then Mr. Boys would have been entitled to ask the Court for permission to cross-examine his own witness. He was not entitled to begin his examination by a question which could only be put in cross-examination. He had laid no foundation for any right to cross-examine that particular witness. Further, Mr. Boys might have found himself in this difficulty, if the evidence had been admitted--we are glad to say the Judge rejected the question--that, having called a witness who was not shown to be hostile or suppressing evidence or contradicting what he had already stated, Mr. Boys' client would have been bound by the man's answers and would not have been entitled to call evidence to contradict him. There might have been some difficulty in getting in the evidence of Muhammad Mehdi, if he was only tendered after the evidence to which we have been alluding had been given, if the question had been allowed.
7. But, indeed, the point was a small one. In our opinion it was immaterial whether the particular witness had or had not seen Zawar Husen at or near Bharwari Railway Station. The real question was--did Zawar Husen take part in the attack upon Imdad Husen? In this country it cannot be assumed that either a criminal or a civil case is false because a witness has lied or has exaggerated. We are satisfied on the evidence in this case beyond any doubt that Zawar Husen, Miru and Phullu did attack Imdad Husen, for the purpose and with the intention of killing him, sometime between midnight and 2 A.M. on the night in question. We say 2 A.M. because the first report was made at the thana at 2-30 A.M. There was moon light. These men were known perfectly well to the witnesses by sight; they lived in the same village. Zawar Husen's identity was also further established by witnesses hearing his voice. It is fortunate for these appellants that they did not succeed in their object that night. This was a planned and deliberate attempt at murder. The sentence of transportation for life passed on these men was the proper sentence. We dismiss these appeals.