1970 PLP 12 (SCMR)

The circumstances relied upon were :‑ (i) that there was a quarrel between the respondent and the cook Shafizuddin over the Ayah; (ii) that just before the Ayah was stabbed she was seen talking with the respondent in the kitchen; (iii) that immediately thereafter the Ayah ran out of the kitchen screaming that she had been fatally wounded by the respondent; (iv) that after that the respondent was seen going towards the servants' quarters where Shafizuddin, the cook, was sleeping on the verandah; (v) that this was followed by the outcries of Shafizuddin and Shafizuddin being seen going towards Sweeper's quarter press ing his abdomen with his hands; (vi) that the respondent was seen by several persons brandish ing a dagger and challenging them; (vii) that he was lastly seen striking himself with the same dagger in the abdomen; and (viii) that he was found in an injured condition with three injuries on his abdomen lying on the cot inside his quarter. In addition to these the trial Court also relied upon another very strong incriminating circumstance, namely; an extra‑judicial confession by the respondent himself. According to Amin (P. W. 7), when the respondent was seen brandishing the dagger he was actually shouting that he had finished the Ayah and the cook and that he would do the same with any one else who dared to come near him. The motive was also held to have been proved satisfactorily by Mr. Yazdani himself, a very respectable person who had no reason to falsely implicate the respondent in such a heineous crime. The version given by the sweepers themselves was also found to have been substantially corroborated both by Mr. Yazdani and Mr. Cowper. The discovery of blood‑stains by the investigating officer on the camp cot (Exh. 4) entered in the seizure list (Exh. 5) which was seized from the verandah of the servants' quarters and the blood‑stains found on the verandah of the sweepers' quarters, even though the blood‑stains were not proved to be of human origin, it was said, corroborated the version of the prosecution witnesses who claimed to have seen the respondent going towards the servants quarters and then hearing Shafizuddin cry out and run towards the sweepers' quarters, pressing his abdomen with .his hands and falling down there. Similarly the evidence of the witnesses with regard to the assault on the Ayah was held to have been confirmed by the discovery of blood‑stains in the kitchen near the water tap, the trail of blood along the covered passage to the pantry and the recovery of the dead body of the Ayah near the back door of the pantry. None of the witnesses saw the actual assault on either the Ayah or the deceased Shafizuddin but the chain of circumstances that had been established left, according to the trial Court, no room for doubt as to the identity of the person who had caused the injuries on the deceased. The respondent was accordingly convicted but sentenced only to transportation for life on account of his youth. . On appeal, however, the High Court of East Pakistan took the view that the witnesses were interested witnesses who had not only given discrepant evidence but also not disclosed the whole truth. The discrepancies detected by the High Court are as follows :‑ (i) that‑ none of the other witnesses had supported the evidence of the sweeper Azizlal Begi (P. W. 3) regarding his hearing the Ayah cry out that Majid, had dealt her a fatal blow; (ii) that none of the other witnesses had Supported the version of Amin (P. W. 7) that when he saw the respondent Majid standing in front of the kitchen of Mr. Yazdani with a dagger in his hand, he was saying that he had finished the Ayah and the cook and not let any one who dares come; (iii) that the darwan had contradicted the sweeper Niranjanlal Begi's statement that when he went out of the gate to take pan, the darwan and Arab Ali were lying down with their eyes shut at the gate. The darwan had, on the other hand, stated that he was awake and had seen Niranjanlal Begi going to the pan shop; and (iv) that while the darwan stated that he saw the respondent stabbing himself in the abdomen when he was in front of the kitchen brandishing a dagger, Amin (P. W. 7), who was with him at the time, did not say anything about such self -infliction. Besides these discrepancies the High Court has also doubted whether the sweeper Azizlal Begi (P. W. 3) could have at all heard the outcries of the Ayah or seen her running from the kitchen to the pantry and then falling down there, because, the location of the staircase had not been established by any evidence and it was not even shown in the sketch map prepared by the investigating officer. The possibility of Azizlal Begi seeing the respondent Majid with a dagger in front of the servants' quarters was for the same reason found unacceptable. The fact that neither Azizlal Begi nor Niranjanlal Begi, sweepers had mentioned about hearing the deceased Shafizuddin raising any cry, was also considered to have made their evidence relating to the attack on Shafizuddin incredible. Indeed, according to the High Court, the evidence of the prosecution witnesses was not at all clear as to where and how deceased Shafizuddin was injured, particularly since the cot belonging to the deceased was shown in the seizure list (Exh. 5) to have been seized from servants' quarter No.

3. The High Court was also inclined to the view that the possibility of the injuries being caused to the respondent himself by another hand could not be ruled out as the doctor Ahmedur Rahman, (C. W. 1), who examined him in the hospital within an hour of the incident, did not say that he was then in a violent mood or abnormal in temperament. The prosecution evidence, therefore, the High Court thought, had merely raised "mere possibilities which do not amount to a certainty." Hence benefit of doubt was given to the respondent and he was acquitted. The learned Advocate‑General, appearing in support of this appeal, has contended that the circumstances detailed by the trial Court establish beyond doubt the guilt of the respondent, parti cularly since nothing has been brought out in the cross‑examina tion of the prosecution witnesses to show that they had joined in any kind of conspiracy to falsely implicate him. There was no reason at all for Mr. Yazdani and Mr. Cowper, two very respon sible officials of Pakistan River Steamers Limitd to join hands with their domestic servants to falsely implicate the respondent Majid. Indeed nothing has been brought out to show that even the sweepers or the darwan or the cook of the occupant of the flat adjoining that of Mr. Yazdani had any particular motive for falsely implicating the respondent or were, in any way, inimically ' disposed towards him. The discrepancies upon which the High Court has placed so much importance were not at all material discrepancies. 1f the High Court, it is contended, had examined the evidence with a little more care and in its proper perspective it would have seen that the so called discrepancies had really arisen, because, tile witness;‑s had not all seen each part of the incident at the same point of time. The High Court was also clearly wrong in taking the view that the cook, Amin (P. W. 7), had not deposed to having heard the screams of the deceased Ayah. His evidence on this point was to the following effect :‑ "Yes, I heard screams of Ayah while I was setting table for tea and on hearing her screams I rushed out and saw the accused with the dagger in front of the kitchen." The High Court, it is said, is also wrong in taking the view that the prosecution evidence had not disclosed as to where and how Shafizuddin was attacked. Azizlal Begi, it is pointed out, after seeing the Ayah running towards the pantry and falling down at the door of the pantry ran up to give that information to Mr. Cowper, then he came down again and at that stage saw the respondent standing in front of the servants' quarters with the dagger. At that point of time Azizlal Begi did not see Niranjan lal Begi but Niranjanlal Begi states that as he started to return towards the bungalow after taking part, he first heard the outcries of the Ayah coming from inside the kitchen and then saw the respondent coming out of the kitchen and proceeding towards the servants' quarters where Shafizuddin was sleeping in the verandah. Soon thereafter he heard the cries of Shafizuddin. Then he saw Shafizuddin running towards the west, i. e. towards the sweeper s quarters, pressing his belly. The respondent then came out with the dagger in his hand, evidently from the servants' quarters. This witness, it appears to us, was a truthful witness, because, he admitted that he could not see as to what happened in the verandah of the servants' quarters as his view was obstructed by the berg on the south of the servants' quarters up to a length of about 12 cubits. If he had been minded to give false evidence, there was nothing to prevent him from saying that he actually saw the respondent striking the deceased also. The version given by these two sweepers has, in our view, been fully corroborated by both Mr. Cowper and Mr. Yazdani who themselves did not see anything but heard about the incident from their respective sweepers. We are also unable to share the doubt of the High Court with regard to the evidence relating to the respondent ultimately stabbing himself with the same dagger with which lie had killed the Ayah and the cook Shafizuddin. The sweeper Azizlal Begi has stated that he observed the respondent brandishing the dagger and aiming it at himself, after looking right and left to see if there was any one observing him. Then the darwan, Abdul Hakim, stated that he saw the respondent brandishing the dagger and stabbing himself in the abdomen. It is true that the cook, Amin (P. W. 7), did not mention this fact in his evidence although he was present with the darwan at the time but this does not mean that the darwan was giving false evidence. It was not suggested in cross‑examination to the darwan that he had any affair with the deceased Ayah or that he was particularly interested in either the deceased Shafizuddin or the driver Arab Ali. The mere omission on the part, therefore, of Amin to mention this fact does not falsify the evidence of the darwan. The possibility of the injuries on the respondent being inflicted has not been ruled out by Dr. Ahmedur Rahman; (C. W. 1), although it is true that he states that normally one would not be expected to inflict such injuries upon oneself, but the situation here was not a normal one. The respondent had committed two murders and had also himself openly declared, as deposed by Amin, to have committed the said murders. In the circumstances it was not unlikely that he would try to take his own life, particularly since the motive for the killing was jealousy over a woman and the woman herself had been killed. There is one other circumstance which negatives the theory of the injuries on the respondent having been caused by another person. The defence of the respondent was that it was the driver Arab Ali who had stabbed him with a dagger when he was sleeping in his quarter. If there was any truth in this, then it is hardly likely that his alleged assailant would have inflicted only such injuries which did not penetrate beyond the peritoneum cavity. If indeed the injuries were inflicted by another hand then the assailant, whosoever he was, would have struck the blow on a sleeping victim with such force that the dagger would have gone deeper than it did. We see no reason, therefore, to disbelieve the prosecution evidence that the injuries found on the respondent were self‑inflicted. We are unable either to appreciate the reasoning of the High Court that a person could not have inflicted such injuries upon himself unless he was found to be in a violent mood even after wards or was a person of abnormal temperament. He may have been in a very excited mood when he committed the murders of the cook and the Ayah and inflicted the injuries on himself but after that the excitement must inevitably have died down with loss of blood and the apprehension of one's own death. It was not surprising, therefore, that when lie was examined in the hospital, an hour or so later, he was not found to be in such an excited mood or in a violent state of temper. There are, no doubt, certain lacunae in the evidence but these have been brought about by the inefficiency of the investi gating agency and not by any fault of the prosecution witnesses.' ,In a case which depended entirely on circumstantial evidence one would have expected that the investigation would have been carried out with greater care to present a complete chain of circumstances. The evidence of Niranjanlal Begi was that soon after seeing the Ayah coming out from inside the kitchen he saw the respondent coming out from the kitchen with a dagger his hand and running towards the quarters where stated that he saw the respondent in front of the servants' quarters with a dagger in his hand and then when he stood near the pantry of Mr. Cowper he saw the respondent brandishing the dagger and aiming it at himself. The darwan Abdul Hakim, however, stated that when he saw the respondent stab himself he was standing in front of the kitchen. Some confusion is, no doubt, created by this which has led the learned counsel for the respondent to suggest that if the respondent had stabbed himself near the kitchen then how could he have walked from there to his quarter from where he was actually picked up. The absence of any evidence as to the finding of any trail of blood between the kitchen and the servants' quarters has also been relied upon to show that the witness had not really seen as to where the respondent had allegedly stable himself. He may well have been stabbed by someone else. There can be no doubt that he was found lying in an injured condition in his own quarter for even his beddings were blood stained, but a careful reading of the evidence of Abdul Hakim" the darwan, would have shown that he was not describing the events seen by him in their proper sequence. Reading his evidence one would at first get the impression that it was after the respondent stabbed himself in the abdomen that he shouted out "Come who dares" but this utterance, it is obvious, must have been made before he stabbed himself. It does not, therefore, follow that the stabbing also took place at the kitchen where the witness first saw the respondent. The darwan, it must be remembered, had come at the calling of Amin (P. W. 7), and the latter had run to the gate to inform the darwan and Arab Ali after seeing the respondent standing in front of the kitchen and uttering that he had finished the cook and the Ayah and would do the same with any one else who dared to come near him. It is not unlikely, therefore, that the darwan coming up on getting this information also first saw the respondent in front of the kitchen and then heard his challenge and then, out of fear, retreated towards the gate and then watching from the side of the building from a safe distance, saw the respondent stabbing himself. If the investigating officer had tried to find out if there was any trail of blood between the kitchen and the servants' quarters, this confusion could easily have been cleared up. We cannot also help observing that if the officer concerned had also tried to fix the ownership of the dagger and the finger prints, if any, on it a further important clue would have been obtained and if we had also evidence as to the extent to which the clothes in the wearing of the respondent were stained with human blood, a further link in the chain of circumstances would have been established. The suggestion of the learned counsel, appearing on behalf of the respondent, that even Mr. Cowper's evidence should not be believed, because, he had not named any of the assailants in the telephonic message which he sent to the police does not impress us because on examination of the general diary entry (Exh. 4), recorded at the Police Station, we find that message was not sent by Mr. Cowper himself but perhaps some clerk in his office, named Deb Narayan Babu. In the circumstances, it must have been thought prudent not to give name of the assailant in the third hand information that was sent to the Police. Having carefully examined the evidence with the assistant of the learned Advocate‑General and the learned counsel appearing for the respondent we have come to the conclusion that the High Court acted upon wrong principles in discarding the evidence. The reasons given by it are neither cogent nor reveal They are mostly speculative and based upon a clear misreading the evidence. It cannot, in our view, be said that the conclusion reached by Court flowed reasonably from an impart reading of the evidence. The evidence did, in our opinion stables strong chain of circumstances which could not be explained away on any hypothesis other than the guilt of to accused. In the circumstances, in spite of our reluctance interfere with an acquittal, we accept this appeal, set aside the acquittal ordered by the High Court and convict the respondent under section 302 of the Pakistan Penal Code on both counts. As regards the sentence to be imposed upon the respond learned counsel appearing on his behalf has argued that there were some extenuating circumstances in this case so far as the respondent was acting out of jealousy. But this cannot be sufficient ground for excusing murders or reducing them only culpable homicide. Nevertheless, we do not propose to impose the maximum penalty of death upon the respondent. He was arrested in 1963 and was acquitted by the High Court on the 15th June 1967. Thus even from the date of his acquittal he has had an expectation of life for over two years. In the circumstances we think that the penalty of transportation for life on each count would sufficiently meet the ends of justice. In computing the period of this sentence, however, the period already served by the respondent will also be taken into account. The sentences will also run concurrently. A copy of this judgment be also sent to the Province Government for taking such steps as it may consider necessary for improving the quality of investigation in this Province. Appeal accepted.