1969 PLP 714 (SCMR)

M. R. KHAN, J.‑The appellant Allahando, along with his father Awal Khan and cousin Ghulam Hussain, was tried by the Sessions Judge, Sukkur, for the murder of one Qutubuddin. The Sessions Judge convicted the appellant and sentenced him to death but acquitted Awal Khan and Ghulam Hussain. The appellant preferred an appeal to the High Court of West Pakistan, Karachi Bench, against the order of his conviction and sentence. This appeal and the death reference were heard together by a Division Bench of the High Court and were disposed of by a single judgment. The High Court dismissed the appeal and confirmed the death sentence imposed on the appellant. . The present appeal by special .leave is from the judgment of the High Court. The Sessions Judge disbelieved all the eye‑witnesses, but convicted and sentenced the appellant relying only on some circumstantial evidence and the motive as alleged by the prosecution. The learned Judges of the High Court, however, put reliance on the evidence of the eye‑witnesses and also on the circumstantial evidence. It was contended on behalf of the appellant that the reasons given by the Sessions Judge for rejecting the evidence of the eye‑witnesses had not received due consideration by the High Court and that the circumstantial evidence is too measure to bring home the charge of murder. Leave was, accordingly, granted to consider the points raised as above. The prosecution case is that two days before the occurrence on the 18th January, 1966, Qutubuddin (deceased) had sent 90 maunds of paddy to Shikarpur through one Tilts Jat for sale. On the day preceding the date of occurrence, the complainant Beg .Muhammad and his son Qutubuddin, deceased went to Shikar pur to get the price of the paddy sent earlier for sale. Having received the money, they left for home the same evening. On their way back, they spent the night in village Dil Murad. They left for home the next morning. At breakfast time, when they were a few furlongs away from their own village, the appellant, along with the acquitted accused and one absconder Mahboob, came on the scene, armed with guns. Of them, the accused Awal Khan instigated the others whereupon the accused persons including the appellant Allahando fired at Qutubuddin which resulted in his death. On the cries of Beg Muhammad, Kamalu, Badlo and Walhari, who were near about the place of occurrence, came and saw the incident. Leaving the dead body of Qutubuddin on the spot, Beg Muhammad went to the Police Station Kot Sultan and lodged an F.

1. R. at 5 00 p. m., the same day. The police came to the spot, held an inquest and secured there from six empty cartridges and a pair of shoes. The police also took some blood‑stained earth from the spot. After getting a mashirnama of the wardat prepared, the dead body of Qutubuddin was sent to the Shikarpur Hospital for post‑mortem examination. On the 28th January, 1966, that is, 10 days after the occurrence the police arrested the appellant from his house. At that time the appellant produced his licensed gun which was taken into possession by the police. The police sent the blood‑stained earth, the six empties and the appellant's gun to the experts for examination. The eye‑witnesses in this case were the complainant Beg Muhammad (P. W. 4), Kamalu (P. W. 5), Badlo (P. W. 6) and Walhari (P. W. 8). All these witnesses are related to each other. After a careful analysis of their evidence, the learned Sessions Judge held that their presence on the spot at the time of the occurrence was very doubtful and accordingly discarded their evidence altogether. He, however, based his order of conviction in respect of the appellant only on the ground that one of the six empties secured from the spot was found by the ballistic expert to have matched with the gun of the appellant and that the appellant had also a motive to commit the murder of Qutubuddin. The reasons given by the learned Sessions Judge for discarding the evidence of the eye‑witnesses did not, however, weigh with the learned Judges of the High Court. The learned Judges accepted the evidence of the eye‑witnesses and relying on their evidence and the evidence of the ballistic expert confirmed the death sentence imposed on the appellant and dismissed his appeal. The trial Court could not believe the presence of (P. W.) Beg Muhammad at the place of occurrence at the relevant time mainly on the following grounds :‑ (i) That there are material discrepancies in his evidence with regard to the sending of paddy to Shikarpur for sale and the receipt of price thereof by him. (ii) That his statement that the cloth purchased by him at Shikarpur was left behind at the place of occurrence at the time of his departure for the police station was not corroborated by any of the witnesses. (iii) That the place where the dead body of the deceased was lying was off the road running from Shikarpur to witness's village Golo Daro and that there being‑ no track between the said road and the place of occurrence, the presence of the witpesg at the spot was very doubtful. As to the first two grounds, the learned Judges of the High Court observed: all these reasons are not discrepancies at all because there is no other evidence on record with which the statements made by Beg Muhammad could be discredited or contradicted . . . . . the reasons given by the learned Judge are not borne out by the record." In view of the evidence on record, these observations do not appear to be justified. During trial, (P. W.) Beg Muhammad stated that 5 or 6 days before the occurrence, they had sent paddy to Shikarpur through a person whose name he could not give, whereas he stated in the committing Court that he and his deceased son Qutubuddin bad brought paddy to Shikarpur 'on camel's back and unloaded the same at the shop of the commission agent. Next, this witness said that he did not receive any money from the commission agent on settlement of the account, but his attention was drawn to his statement in the F. I. R. wherein he stated that he had got money from the grain merchant. These self‑conlrad ctions of Beg Munammad were not taken notice of by the learned Judges of the High Court. This witness deposed that he had purchased cloth from Shikarpur and that he left the same at the place of occurrence when he went to lodge F.

1. R. The mashirnama (Exh. 8) which gives a detailed description of the place of occurrence and the various articles recovered there from, is silent about the presence of any new cloth there. When asked in cross‑examination, the Investigating Officer (P. W. 10) said that he did not find any new cloth at the place of occurrence. This evidence also was not noticed by the learned Judges. As regards the absence of a track between the main road and the place where the dead body was lying, the learned Judges remarked that mashirnama of the scene of offence shows that there was a track. This does not, however, appear to be correct. The said mashirnama speaks of a foot‑track on the bank of a nearby distributory, but does not mention that there was a track Inking the place of occurrence with the main road. On the contrary, the evidence of the mashir, P. W. 3 Ahmad is that there is a cart‑path between the village Dil Murad and the complainant's village Golo Daro, but the nearest point on this cart‑path from the place of occurrence would be about a mile. Thus the learned Judges were not correct w en they said that there was a track between the road and the scene of offence. P. W. 6 Badlo who claimed to have seen the occurrence is the resident of a place which is admittedly three miles away from the spot where the dead body was lying. This witness said that he was taking his buffalo to Shikarpur for sale and that on his way to Shikarpur he reached the house of (P. W. 5) Kamalu after sunrise from where both he and Kamalu went near the place of occurrence for cutting grass for his buffalo and that it was in such circumstance that he happened to witness the occurrence. The evidence of (P. W. 5) Kamalu is also to the same offect. There is a direct and shorter route between . Badlo s village and Shikarpur and, as such, he was not required to follow the longer route by the side of Kamalu's house. Kamalu's statemant in the committing Court is that he alone was cutting r, grass and that Badlo came there and also saw the incident. In his statement before the committing Court, Badlo did not say that he and Kamalu were cutting grass together. What he stated in that Court is that when he was passing by the side cultivation of Kamalu he started cutting grass for his buffalo. Badlo stated that they had not taken away their sickles and the grass cut by them and had shown the same to the police. Kamalu, on the other hand, said that they had not produced their sickles before the police, but pointed out to the S. H. O. the grass that they had cut. The S. H. O. (P. W. 10), however, said that Badlo and Kamalu did not show him any grass said to have been cut by them. Moreover no sickle was secured by the S. H. O. In view of this state of evidence, the trial Court disbelieved the presence of Kamalu and Badlo at the place of occurrence and discarded their evidence. The reasons given by the trial Court for discarding the evidence of the said two witnesses, in the opinion of the learned Judges of the High Court, were `absolutely fantastic' and were not borne out by the evidence on record. We have gone through the record and find that what the trial Court said about (P. Ws.) Kamalu and Badlo is indeed borne out by the evidence. In the trial Court Badlo stated: "My village is about three miles from the village of Kamalu. There is another route from my village to Shikarpur via Lakha Bridge. That route is shorter than the route which was taken by me . . . . We had shown the sickles as well as the grass cut by us to the police." Badlo's statement in the committing Court was as follows: "About a month or so back I was coming to Shikarpur from my village. When I came near the cultivation of Kamalu I started cutting grass for my buffalo." During his examination in the trial Court, Badlo's attention was drawn to his above statement in the committing Court, but he denied to have made that statement. In the committing Court, Kamalu stated that on the date of occurrence he was cutting grass in his land, but did not say if Badlo was also cutting grass along with him. In the trial Court, Kamalu's attention was drawn to his statement in the committing Court, and it was suggested to him that he had not mentioned the name of Badlo in his earlier statement. Kamalu, of course, denied that suggestion, but the fact remains that he had not stated in the committing Court that Badlo also cut grass along with him. 1n the trial Court, Kamalu stated: "We had not produced our sickles before the police but pointed out to the S. H. O. the grass that we had cut." In this connection, the learned Judges of the High Court remarked: "The S. H. O. had not been asked about whether grass . was shown or not shown to him. No such question was ever put to him." This remark appears to be unwarranted, because the S. H. U. (P. W. 10) was definitely asked about the grass said to have been out by Badlo and Kamalu. The answer of the S. H. O. to that question was: "P. Ws. Badlo and Kamalu had not shown me grass cut at the jai wardat." Walhari (P. W. 8) is said to be the last eye‑witness to the occurrence. He is a resident of village Jagan which is about six miles away from the place of occurrence. The trial Court has found that the evidence of this witness on material points is utterly inconsistent with his statements in the committing Court and before the police. In course of his cross‑examination the material contradictions were brought out by drawing his attention to his statements in the committing Court and before the police. The S. H. O. stated in his evidence that this witness did not tell him the material particulars about which he deposed in Court. The evidence of Walhari is so much discrepant and inconsistent that the trial court had no hesitation to discard it. The learned Judges of the High Court did not advert to the reasons given by the trial Court and simply stated that the Sessions Judge's reasons did not appear to them to be cogent. From what has been discussed above, it is manifest that the reasons given by the trial Court for discarding the evidence of the eye‑witnesses are cogent, but these did not receive due and proper consideration of the learned Judges of the High Court. Having seen that all the eye‑witnesses were interested in the prosecution, the learned Judges rightly held that their evidence required corroboration for the purpose of being relied upon. According to them, corroboration of their evidence 'is available on the record in abundance'. The occurrence took place on the 18th January, 1966, and the appellant was arrested on the 28th January, 1966. From this fact, the learned Judges concluded: "The first circumstances in corroboration of the evidence of the witnesses is that the appellant was found to be absconding from 18th January, 1966 to 28th January 1966. His explanation that he was available for all these days in his house is noteworthy of any reliance because the evidence of S. H. O. and the Police Officers is to the contrary." This was a clear misreading of the evidence on record. The S. H. O. who arrested the appellant on the 28th January 1966, did not utter a word about his absconsion. According to him, only the co ‑accused Ghulam Hussain and Mahboob absconded. Ghulam Abbas (P. W. 9), the other Police Officer stated that it was the co‑accused Ghulam Hussain who had absconded and that he arrested him. Thus, there is nothing to show if the appellant ever absconded. It may be mentioned that the trial Court did not find the appellant to be an absconder. The only other circumstantial evidence said to be corroborating the evidence of the eye‑witnesses is the report of the Ballistic Expert. The police sent to the ballistic expert the appellant's D. B. Gun and the 6 empty cartridges secured from the place of occurrence. These were sent to the Ballistic Expert in two separate sealed parcels. After test the Ballistic Expert found that one of the crime empties matched with the appellant's gun. The evidence of the Ballistic Expert (P. W. 11) was taken by both the trial Court and the High Court to be a circumstantial evidence strong enough to prove the guilt of the appellant for the murder of Qutubuddin, deceased. The empty cartridges were secured and sealed in a parcel on the 19th January, 1966. The appdlant's gun was seized and sealed in other parcel on the 28 January 1966. These two parcels, according to the evidence of the Ballistic Expert, were received by him as late as the 12th May 1966. No explanation was coming from the side of the prosecution as to why these parcels were sent about four months after the empty cartridges had been secured from the place of occurrence. Nor is there any explanation as to the place where and the manner in which those two parcels were kept during this long period. In this circumstance the evidence of the Ballistic Expert that one of the empties matched with the appellant's gun cannot be taken to be so strong a piece of evidence as to warrant the conviction of the appellant. When the evidence of the eye‑witnesses were rightly discarded by the trial Court on cogent reasons and when there is no explanation as to why the parcels were detained for such a long period, it would be unsafe to base the conviction only on the evidence of the ballistic expert. We, therefore, think that the charge of murder against the appellant has not been established in this case. We; therefore, allow the appeal, set aside the judgment of the High Court, acquit the appellant and direct that he shall be released forthwith unless he is required in any other connection. Appeal accepted.