P L D 1954 Federal Court 170 (PLP)

CORNELIUS, J.

This appeal by special leave granted to one Muhammad Afsar calls in question the correctness of his convic tion under section 302 P: P. C. by the Court of the Judicial Commissioner at Peshawar. In so doing, the Judicial Commis sioner's Court partially reversed the order of acquittal made by the Sessions judge who bad tried Muhammad Afsar and his cousin Muhammad Azim on a charge under section 302/34 P. P. C. for the murder of one Khudadad. A sufficient motive appears from the circumstance that some nine months earlier, Khudadad and two of his relations were brought to trial for the murder of Mir Afzal, brother to Muhammad Afsar, and one of them was convicted, although Khudadad was acquitted. The circumstances of the murder were related by Mst. Shah Jahan, stepmother of the deceased, who professed to be the sole eye-witness, although in the initial report to the Police, both she and another woman Mst. Rahim Jan were represented as eye-witnesses. Khudadad was said to have been returning along a hill path carrying a load of grass on his head, at about noon, accompanied by Mst. Shah Jahan. Muhammad Afsar and Muhammad Azim were sitting by the side of the path, each armed with an axe, and as Khudadad passed them, Azim caught hold of him and Afsar gave him two axe blows on his head. When he fell down, Azim gave him a third blow on the head (On post mortem examination three contused wounds were found on the head, under each of which the skull was fractured.) Mst Shah Jahan declared that she raised an alarm whereon she was threatened by the accused persons. She shouted to Mst. Rahim Jan who was tending her cattle some 500 paces away that Kbudadad had been murdered by these persons and Mst. Rahim Jan passed this information on to Bostan, cousin of the deceased, by calling to him at his house, where two police con stables were present by chance. They went to the spot, and heard from Mst. Shah Jahan what had happened. She also told them she bad seen the fathers of Muhammad Afsar and Muhammad Azim, namely Said Abdullah and Mir Ghazan standing on the same mount, who ran away after the deceased fell. These two persons were not proceeded against by the police, and in evidence Mst. Shah Jahan declared than she had named them on mere suspicion, having seen two persons running away from the spot. Bostan reported the matter at the Police Station, giving the names of the two alleged assailants, as well as their fathers. In describing the information he had received from Mst. Rahim Jan, he said:-- "shouted to him and told him that Khudadad bad been killed and I should reach". This statement does not mention the names of the alleged assailants and conflicts in this respect with the evidence given in the case by both the women. In her statement to the police as well Mst. Rahim Jan bad merely said that she told Bostan that Khudadad had been killed and he should go to the spot, naming no assailants. The trial judge did not consider it safe to rely upon the uncorroborated statement of Mst. Shah Jaban. As regards belief in her capacity to tell the truth, he pointed out that she is a near relation of Khudadad, between whom and the accused persons there was a blood-feud. Promptness in naming the accused persons was natural in the circumstances and furnished no indica tion of truth. There was a clear attempt to implicate falsely the fathers of the two alleged assailants as well. He laid stress on the circumstance that the names of the two assailants were not mentioned by Mst. Rahim Jan to Bostan in the first instance, and concluded that Mst. Shah Jahan might herself have arrived to find Khudadad lying murdered on the path a short while before the police witnesses arrived there, and therefore might not be an eye-witness at all. The Crown appealed under section 417 Cr. P. C. against the acquittal of both the alleged assailants, and- the Court of the Judicial Commissioners reconsidered the evidence of. Mst. Shah Jahan, reaching the following conclusions. They thought there was no room for doubt that Mst. Shah Jahan was in fact accompanying Khudadad when he was killed, and based this` conclusion upon the circumstances, firstly that some wool and a pot used for drinking milk water" were recovered froth the spot, which Mst. Shah Jahan had been carrying, and secondly that "immediately after the occurrence" she was found on .the spot by Qurban Hussain Shah F. C. They placed no importance upon the charge against Said Abdullah and Mir Ghazan, because in their opinion, "Said Abdullah and Mir Ghazan, unlike Muhammad Afsar, were not said to have taken any active part in murdering the deceased". Nevertheless, the learned Judges did not implicitly rely upon Mst. Shah Jahan as a witness of truth, for they next proceeded to examine the extent to which she could be relied upon. The discussion of this question in their judgment is brief and may be reproduced in full :- "Now, in cases arising out of blood feuds such as is the case here, there is a general tendency in this province to assign the major role in the commission of an offence to the actual offender, and to attribute a minor role in the same offence to an innocent relation or partisan of the real offender This precisely seems to be the case here. Muhammad Afsar has all along been given the major part in the murder of Khudadad, namely, that of striking him on the head with an axe, whereas, according to the first information report Muhammad Azim was assigned the minor part, namely, that of holding the deceased. This being so, We hold that Muhammad Afsar alone murdered the deceased, and that Muhammad Azim has been roped in unjustly according to the prevailing practice of roping in the innocent along with the guilty when bringing a charge." Observing further that Muhammad Afsar disappeared after the occurrence and was arrested in Abbottabad two days later, and has offered no explanation for his conduct, the learned Judges concluded as follows :- "We have not the slightest hesitation in coming to the conclusion that the deceased was murdered by Muhammad Afsar and by none else." The question of the guilt of the petitioner rests wholly upon the degree of credibility which can be allowed to Mst. Shah Jahan. The reference to his having absconded after the occurrence is of a collateral nature, and it is obvious that from this single piece of conduct, obviously subsequent to the time when his name was mentioned by his enemies as the murderer of Khudadad, no inference can be drawn that he was indeed guilty. It is claimed with force on his behalf that the solitary piece of evidence against him was wholly disbelieved by the Judge who saw the witness, and was disbelieved to a great extent even by the Court of the Judicial Commissioner. The latter Court had not acted on correct principles in partially reversing the order of the trial judge acquitting him as well as Muhammad Azim. When the direct evidence of an incident involving more than one accused person is reduced to the statement of a single witness, and the Court is satisfied that it is false in relation to some of the accused persons, that testimony becomes subject to reasonable doubt as against the remaining accused persons as well. That doubt cannot be deemed to be satisfactorily resolved unless there be against each or all of the latter persons, material corroboration from independent sources, indicating that he or they did participate in the crime. With the exception of the fact that the petitioner was arrested two days after the occurrence, to which we can attach no importance in the proved circumstances, no corroboratory material at all is available to connect Muhammad Afsar with the crime. The failure to observe this salutary rule in assessing the evidence is by itself sufficient to vitiate the conviction of the petitioner, but in fairness to the view taken by the trial judge, we ought to say that his conclusion that Mst. Shah Jahan might only have arrived on the spot to find Khudadad lying dead is supported by a further circumstance to which due attention has not been paid, viz. that the pot which she was carrying contained whey. This could hardly be the case if she and Khudadad had taken it with them in the early morning before sunrise, by way of refreshment during their labours, which lasted some five or six hours. On the other hand, Bostan declared that Khudadad only went out to cut grass at about ten o'clock, some two hours before the discovery of the murder which was made at noon, and this is entirely consistent with the possibility that Mst. Shah Jahan was going out to take refreshment to her stepson when she found his body. The possibility is supported by the absence of the names of the alleged murderers in the first report made to Bostan by Mst. Rahim Jan. The principle of discrimination between several accused persons on the basis of the parts assigned to each in a crime, which has been applied by the Court of Appeal in respect of the fathers of the two accused persons as well as Muhammad Azim, cannot be supported. It is necessary to observe that in this respect, the view of trial judge, that the false implication of the fathers was a ground for disbelieving Mst. Shah Jahan's evidence altogether, is clearly more conducive to the safe and impartial administration of justice. Moreover, Muhammad Azim's collaboration with Muhammad Afsar was both vigorous and effective, according to Mst. Shah Jahan. Not only did Muhammad Azim, according to her statement, keep hold of Khudadad while Muhammad Afsar delivered two blows on his head, but after Khudadad had fallen, Muhammad Azim also delivered a blow on his head. All three blows were struck with axes, and each produced a necessarily fatal injury. The view that Muhammad Azim was "assigned a minor part" seems therefore to be hardly tenable, and it would probably surprise Mst. Shah Jahan herself to find her accusation against the two assailants being interpreted in this light. In the initial report, on which the learned judges of the Judicial Commissioner's Court appear to rely in preference to the somewhat different statement of Mst. Shah Jahan at the trial, the account given is as follows: - "Muhammad Azim caught hold of Khudadad. The bundle of grass fell down. Muhammad Afsar gave an axe blow on the head and the deceased fell down, Muhammad Azim was also armed with an axe. More blows were dealt after Khudadad had fallen." Even in this statement, 'an equality between the alleged assailants in point of the effective use of force clearly appears. But indeed, it is obvious that this mode of distinguishing the true from the false in a consistent account of an occurrence given by a witness rests on mere conjecture. In the absence of inherent improbability, the testimony must be weighed as a whole, and the only reliable check on its truth, in whole or in part, must be found in other credible evidence coming from independent sources. In the present case, there is no indepen dent evidence of any kind bearing upon the truth or falsehood of Mst. Shah Jahan's accusation against the two accused persons. The story of the attack as told by her is far from being improbable. The accusation must stand or fall equally against each of the accused persons. In these circumstances, it seems to us that the true criterion to be applied by the Court of Appeal, if it regarded Mst. Shah Jahan's testimony as doubtful (as appears from the decision that Muhammad Azim was roped in unjustly) was to 1 rely on the estimate of her credibility formed by the trial Court which had enjoyed the advantage of seeing and hearing the witness when she was under examination in the witness-box. This Court has had occasion in a recent case, that of Khairdi Khan (P L D 1953 F. C, 223) to emphasize the importance of giving a full measure of weight to the opinion formed by a judge of first instance regarding the character and credibility of a witness who -has been examined at length before him in relation to the facts of a case, and this is the case quite irrespective of whether the Judge makes any observation with regard to credibility or not. It is enough that the Judge has disbelieved the witness, as in this case, for the Appellate Court to conclude that in the trial Judge's opinion, the witness was unworthy of belief. Where the appellate Court itself found it impossible to accept a great part of the witness's story, believing that such part was purely fabricated, there need have been no hesitation in upholding the view formed of the witness's, credibility as a whole by the trial judge. Special importance attaches to the view formed of the credibility of witnesses by the trial judge when the matter comes up before an appellate Court in an appeal against acquittal. It is perhaps desirable that we should reproduce here the weighty observations of the judicial Committee bearing upon this topic,-in .the case of Sheo Swarup (L R 61 I A p.398 at p. 404.). Their Lordships observed :- "Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility, of the witnesses ; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakned by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witness. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice . If these principles had been borne in mind by the Court of Appeal, we entertain no doubt that it would not have found it possible to convict one of the accused persons while upholding the acquittal of the other, on the same evidence. All the conditions necessary for giving effect to the trial Judge's estimate of the credibility of Mst. Shah Jahan are present in this case, in full measure. We accordingly allow this appeal, and direct that Muhammad Afsar be acquitted. A. H. Appeal allowed