1969 PLP 777 (SCMR)

SHAHABUDDIN, J.‑This is an appeal by special leave from the judgment of the High Court of Judicature at Lahore by which the conviction for the murder of one Feroz and the sentence of death imposed by the Sessions Judge of Jhelum on the appellant Din Muhammad were confirmed and his appeal was dismissed. On the morning of 18th November 1952 a corpse was found in a well in Mauza Bhit Slier Ali, the village of the appellant, which is about 10 miles from Pothi where the deceas ed was living; and outside the well were found an old chaddar and a pair of chappals. Information was lodged at the police station by Khurshid Alam (P. W. 12) Lambardar of the village and a Head Constable (P. W. 21) came to the spot and had the body taken out. There were four incised injuries on the body indicating death by violence, and as it was not identified at that stage, P. W. 14, who took it to the mortuary had it photographed at Jhelum under the directions of the Head Constable. Mst. Mir Jan (P. W. 2) wife of Feroz and his step‑brother Muhammad Alam P. W. 3 identified the photograph as that of Feroz. Identification of the corpse was established also by a comparison of its thumb‑impressions taken before the post‑mortem examination with those on the invaliding roll of Feroz who had been discharged from the Army about 4 'to 5 months prior to the murder. Mst. Mir Jan identified the chaddar found at the well as her husband's. The post mortem examination which was held at 10 a. m. on the 19th disclosed that the 7th cervical vertebra and the spinal chord had been cut through with a sharp‑edged weapon, that shock resulting from this injury and not drowning was the cause of death and that death must have occurred two days prior to the post‑mortem examination, which being an approximate estimate may be taken as not in conflict with the theory of the prosecution that Feroz was murdered on the night of 16th November 1952. The case for the prosecution that the appellant committed this murder rested on circumstantial evidence which was to the following effect. The appellant had asked for the hand of Mst. Mir Jan before she was married to Feroz, but her father P. W. 18 preferred Feroz and the marriage which took place about four years prior to the occurrence was resented by the appellant. It was, however, not alleged that the appellant, who had marri ed another woman, created any trouble during the four years. Feroz was away in the Army; but P. W. 2's evidence was that the appellant who used to visit Pothi as P. W. 3 had married his sister, suggested to her P. W. 2 a month before the murder that she should elope with him and that P. W. 2 turned down the proposal when the appellant threatened her saying that her husband would suffer for her refusal. Mst. Mir Jan mentioned this threat to Feroz but he did not believe her. On Wednesday prior to the occurrence the appellant came to Pothi where he stayed till Sunday following. During this interval he impressed on Feroz that he had supernatural powers over fins and paris and that he could produce whatever Feroz desired. On Feroz's asking him to produce grapes he did so, and he also foretold that Feroz would receive his pension papers the next day, which he did. Considerably impressed by this demonstration of the appellant's supernatural powers, Feroz asked him to get him money through the jims and paris as he had spent all he had on the construction of his house. The appellant promised to do so if he came to his house. The theory of the prosecution was that the appellant had thus a motive to kill the deceased and in fact induced him to come to the appellant's village. On Sunday which according to the calender of 1952 was 16th of November the appellant left Pothi in the morning. The deceased, however, did not go with him, but he too left the village in the afternoon the same day. According to P. W. 2 the deceased while leaving Pothi told her that he was going to the; appellant's house, but P. W. 3 stated that the deceased told him that he was going to Tarakki to see a clerk in connection with his pension papers. The learned Judges of the High Court took the view that the deceased mentioned his destination correctly to P. W. 2 and not to P. W.

3. The deceased promised to get back the same day but did not, and P. W. 3 then went to Tarakki to learn that Feroz had not come there. On his return to Pothi he had information that Feroz had given out at Tarakki that he was going to the house of the appellant. Therefore P. W. 3 and P. W. 4 went to the appellant and enquired of him about the whereabouts of Feroz, when the appellant said that Feroz had gone to Rawalpindi and would return in a few days, and that P. Ws. 3 and 4 should go away immediately as a woman had been murdered in his village and the police were coming to investigate the matter. P. W. 3 s evidence is that he and P. W. 4 went to P. W. 18, the father of Mir Jan who lives in the same village to enquire about Feroz but that that witness said that Feroz had not come there. They then returned to Pothi regards the day on which these witnesses went to the accused there is a discrepancy between the evidence of P. W. 2 and P. W. 3 but serious notice of this was not taken by the Courts below who proceeded on the basis that P. W. 3 and P. W. 4 went to the appellant on Tuesday the 18th, of N,vember 1952. P. W. 16, Lal Hussain a resident of Pothi deposed that under the directions of the police he went to call the appellant to identify the body that had been taken out of the well. but that the appellant replied that the .fins did not permit him to identify the body. It does not appear that this witness informed the police of what according to him was the appellant's reply. As a matter of fact from the evidence of the Investigating Officers and the Lambardars who took part in the investigation it does not appear that the police suspected the appellant that day. There is evidence that the appellant appeared before the police on the 21st and took them to his house where he produced a kulhari having tiny stains which on chemical analysis were found to be of human blood, and a safa, a shirt, a shalwar and a pullover which were identified by P. W. 2 as the clothes the appellant was wearing when he left Pothi on that Sunday. They were not blood‑stained, nor were there any cut marks on these clothes. This shows that they were not on the deceased when he was killed. There was only a loincloth on the corpse and the chaddar was lying outside the well. As to how part of the clothes of the deceased happened to be at the well and part in the house of the appellant, it is not clear from the evidence. P. W. 7 Farzand Hussain deposed that one night while passing the village of occurrence lie met the appellant coming from the direction of the well in question with a kulhari and on the witness's asking him as to where he was going the' appellant told him that he had come to take some chillies. The witness did not remember the date, but he was definite that the next day he had to attend the hearing of his case and that was a Monday and that on his return from Jhelum he heard of the recovery of the body. He said he met the appellant that night at kuftanwela. P. W. 6 had deposed that he had seen the appellant and the deceased together on the evening of that Sunday but the Sessions Judge considered it unsafe to rely upon this witness observing that his statement was full of contradictions, and the Public Prosecutor conceded that he was not a truthful witness. The learned Judges of the High Court also have not relied on this witness. The defence was one of denial of the facts of the prosecution. The appellant denied that he wanted to mary Mst. Mir Jan or claimed to have power over jins. He stated that he did not produce the clothes said to have been recovered from him. According to him these clothes did not belong to the deceased. He also denied that he asked the deceased to go over to him or that he murdered him. No witnesses were examined for the defence. The learned Judges of the Courts below took the view that the reply which the appellant gave P. W. 3 when the latter enquired of him about Feroz was intended to put him and P. W. 4 on the wrong scent and make them leave the village in order to avoid the body being identified by them. The reply he was said to have given to P. W. 16 when he called him to identify the dead body was regarded as an indication of his guilty conscience. The incident spoken to by P. W. 7 and the recoveries made from the appellant were regarded as circumstances connect ing him with the crime. Referring to above circumstances the learned Judges observed :‑‑ "All the circumstances mentioned above are proved on the record and, in our opinion, the cumulative effect of the evidentiary value of these circumstances is that they are incompatible with any other reasonable hypothesis than that the appellant had killed the deceased and thereafter thrown the dead body in the well from which it was recovered." In reaching these conclusions the learned Judges have not considered a material defect in the proceedings viz. that three of~ the circumstances from which they were drawing inferences adverse A to the appellant had not been put to him when he was ques tioned under section 342, Cr. P. C. by the committing Magistrate and the Sessions Judge. No question was put to him in respect of the evidence of P. W. 3 about the reply he was said to have given the witness when asked about the whereabouts of the deceased or the evidence of P. W. 7 or that of P. W.

16. The circumstances spoken to by these witnesses even if accepted as proved, can be made the basis of an adverse inference against the appellant only on the ground that he had no satisfactory explanation for them, but the possibility of his having been able to give an explanation though not convincing at least plausible enough to create a reasonable doubt cannot reasonably be excluded. The importance of the examination of the accused under section 342, Cr. P. C. has been pointed out by their Lord ships of the' Privy Council as well as by this Court in more than one decision, and it is unfortunate that the learned Judges overlooked this serious omission. Further the evidence does not appear to have been appreci ated by the learned Judges according to correct principles. To test the testimony of a witness Courts should not only consider a whether there is consistency in the narrative but should also consider whether the version is probable or not. What appears to have been done in this case was to consider whether the witness had any reason to give false evidence and on his being found to be disinterested to accept his version without deciding whether his version was probable or possible at all. In view of these material defects we had to examine the evidence ourselves to see if the defects had led to miscarriage of justice, and so doing, we are of opinion that it cannot be said that the case for the prosecution that the appellant committed the murder has been proved beyond reasonable doubt. Referring to the evidence of P. W. 3 that the appellant when asked to the whereabouts of the deceased said that he had gone to Rawalpindi from where he would be returning within a few days and that the witness should go away immediately from the village because a woman was murdered and police would come ; the High Court observed "It is by no means unreasonable to infer that the desire of the appellant to make Muhammad Alam leave village Bhit Sher Ali without seeing the dead body was actuated by the fear that if Muhammad Alam saw the dead body the identity of the murdered man will come to light." But it was not noticed that Muhammad Alam, according to the prosecution went to the village of the appellant on Tuesday the 18th November, which was the day on which the body of the deceased was taken out of the well. Pothi being about 10 miles from the village of murder P. W. 3 must have reached that village only about midday and by that time the discovery of a corpse must have been known all over the village. It seems difficult to believe that if the appellant had given the alleged reply P. Ws. 3 and 4 would have quietly gone away from that village without even enquiring as to whose corpse it was that had been found in the. well. P. W. 3 says that he then went to P. W. 18 the father‑in‑law of the deceased who lives in the same village, but P. W. 18 does not refer to P. Ws. 3's visit. P. W. 3, according to P. W. 2, returned to Pothi on Wednesday. This would indicate that he stayed in the village Bhit on Tuesday night and if he did so he would have been present at the inquest which was held before 6 p m. and no question of the corpse being sent as unidentified would have arisen. In these circumstances it is a matter of serious doubt if P. Ws. 3 and 4 went to Bhit at ail in search of the deceased. Reason for the search as given in P. W. 3's evidence was that the deceased had promised to return that Sunday itself but he did not say that he suspected the appellant. The version of accused's threat to P. W. 2 is not spoken to by P. W.

3. Neither of them dissuaded the deceased from going to the appellant. That being so, there was no reason for a search pary to start so soon as on Tuesday. Regarding the evidence of P. W. 16 it is remarkable that none of the police officers has said that any one of them asked this witness to call the appellant to identify the corpse. The Head Constable who held the inquest did not depose that he sent for the appellant nor has the A. S. I. or S. I. given evidence to that effect. The Lambardar also did not state that the appellant's presence was required for the purposes of identifica tion that day. If in fact P. W. 16 had been asked by the police to bring the appellant and the latter as alleged had refused to come, P. W. 16 would have been asked by the police why the hellcat did trot turn up because they were looking for some one who could indentify the corpse. Strangely enough P. W. 16 does not say that he told the police about the appellant's reply. His evidence is so brief that it is surprising that it did not occur to the Sessions Judge to ask him as to whether he went and reported to the police about what the appellant had told him. It is significant that this witness in cross‑examination stated that his statement was recorded `after the third day of the dead body having been recovered'. It is true that nothing was elicited indicating that he had a grudge against the appellant, but the version given by him is so incomplete that if the learned Judges had only looked into the evidence of the police officers and the Lambardars to see if there was any corroboration of this witness's statement that he was asked by the police to call the appellant they would certainly have hesitated to accept his evidence. The only comment on this evidence by the learned Judges is "accord ing to the prosecution the refusal of the appellant to keep away from the well from which the dead body was recovered pointed to his guilty conscience. We are inclined to agree that it was so". It appears to us that if the version of P. W. 16 were true the appellant would have been suspected or even arrested on the 18th itself but as indicated above the evidence shows that the appellant appeared before the police only on the 21st. As for the evidence of P. W. 7, the learned Judges observed that they saw no reason not to accept it as the witness was respectable and disinterested; but his version taken as a whole creates a doubt if he was not referring to the night of the 17th and not to that of the 16th. In his examination‑in‑chief he did not specify the night but in cross‑examination he exclaimed "when I had seen the accused on the next day there was a hearing of my case at Jhelum. The hearing was on Monday but I cannot give the date. When I had gone back from Jhelum after attend ing the case I came to know that a dead body had been recovered from the well by the police". In re‑examination however he added `when I reached back to my village on Monday I came to know of the recovery of the dead body'. He could not have heard of the recovery on Monday as the body was taken out of the well on Tuesday. His journey to and back from Jhelum might therefore have been on Tuesday in which case the night previous would be that of Monday the 17th. Then again, the post‑mortem examination disclosed that the stomach was empty. This indicates that death must have occurred in the small hours of the 17th or in the early part of the night before the deceased had his food. If he had been murdered at kuftanwela as is inferred from the evidence of this witness the stomach would not have been empty unless it is presumed that the appellant pursuaded the deceased to go with him to the well even before having his food, which does not seem likely. Considering the improbability of the murder being committed in the early part of the night it seems more likely that death occurred much later in the night than kuftanwela. P. W. 7 had deposed before the committing Magistrate that the night he was referring to was a moonlit night, but according to the calendar 17th was the new moon and therefore 16th was a dark night. The trial Court considered this discrepancy as of no importance. The learned Judges did not refer to it or the probability of the version discussed above. The story of the recovery of clothes of the deceased and the blood‑stained kulhari from the house op the appellant appears in the evidence rather abruptly. The Police Head Constable came to the village of occurrence on the afternoon of the 18th and the A. S. I. took over the investigation the same day at 6 p. m. and if he is to be believed the S. I. joined the investiga tion only on the 21st after the recoveries, while the Sub‑Inspector's evidence is that he took over the case from the A. S. I. on the 19th. None of these officers, nor the two Lambardars who participated in the investigation explained how the appellant was traced. Lambardar Khurshid Alam deposed that the appel lant appeared before the A. S. I. on the 21st and took the police to his house and produced the clothes. The A. S. I: s version is that he interrogated the appellant and he led the police to his house. The S. I. deposed that he took over the investigation on the 19th and recorded the statement of P. W. 7 that day, but he did not refer to the recovery of the clothes and the axe.. He stated that he produced the appellant before the Magistrate on the 22nd for making a confession but no confession is said to have been made. The other Lambardar speaks of the accused only from the stage of his taking the police to his house. A strange feature of this part of the case is that while the chaddar was at the well the rest of the dress of the deceased was in the appellant's house. None of these clothes was blood stained, nor did they bear any cut marks and the theory of the prosecution was that the deceased had them on when he left Pothi and not when he was murdered. That being so, he must have undressed before the attack, and in the nature of things that should have happened at the well. It is unlikely that on a November night he undressed at the house of the appellant and went with him to the well in a loincloth and a chaddar. The learned Advocate‑General contended that the appellant might have asked the deceased to undress in the house and go in loincloth and a chaddar to the well to have a bath to get money from the fin. The theory that the appellant's claim to supernatural powers was believed by the deceased was relied upon; but that story is far from convincing. Producing grapes in the grape season was not such a feat that even an illiterate villager would attribute it to supernatural powers. As for his prophecy about the pension papers both P. Ws. 2 and 3 deposed that as foretold by the appellant the deceased received them the next day, but P. W. 3 also stated that the deceased left Pothi saying that he was going to Tarakki to meet a clerk about the pension papers. Stress was laid in the arguments by the learned Advocate‑General on the credulity of illiterate villagers but it trust be remembered that the deceased though illiterate had served in the Army. However, the appellant according to the theory of the prosecution pretended to have supernatural powers to decoy the deceased to kill him. If that was so, it is far more likely that the appellant made the deceased undress at the well so that it might appear that while he was about to get in for a bath he was killed by someone, than that he asked him to leave his clothes in his (the appellant's) house. Even if it is believed that the clothes were recovered from the house of the appellant, at his instance, that by itself does not justify the inference that he is the murderer, though it does create a strong suspicion against him. The stains on the axe, it is in the evidence of the A. S. I. were too tiny to be scraped. The motive for the crime alleged is hardly adequate. The learned Judges have stated the evidence about the motive but they have not fully considered its adequacy or otherwise. The appellant, even if he resented the marriage of P. W. 2 with the deceased, had married another woman, and it is not the case of P. W. 2 that he worried her in any way during the four years when the deceased was in the Army. She said that a month before the. murder he asked her to elope with him and when the refused, threatened that her husband would suffer for her refusal. She also stated that at the instance of the appellant, his sister the wife of P. W. 3, used to beat her with sodas and yet she did not complain to others. Apart from the fact that this version is not corroborated, it seems highly improbable that the appellant who did not pester ‑P. W. 2 during the long absence of the deceased did so just a month before the occurrence and because she refused to comply with his suggestion posed as a person with supernatural powers, decoyed the deceased and killed him. The case bristles with improbabilities and we have no doubt that had the learned Judges considered them, they would have come to the same conclusion as we have viz. ‑that the case for the prosecution has not been proved beyond reasonable doubt. We, therefore, set aside the conviction sentence and acquit the appellant. Appeal accepted.