1969 P Cr (PLP)

"A perusal of the judgments delivered by the learned Judges shows that in coming to a decision on that question, they did not seem to be inclined to accept Akil's statement alone, but had also been influenced by Abdul Hadi's evidence that the petitioner's name was mentioned about two hours after the incident as a murderer of Ghulam Muhammad Channer. Had the learned Judges relied solely on the oral evidence and not depended on the evidence which is now being challeng ed as inadmissible, the task of this Court would not have been difficult. But inasmuch as the decision of the learned Judges of the Chief Court appears to be based on Akil's statement as well as on the evidence which may not be found to be legally admissible and it is not easy to state the extent to which the learned Judges had been influenced by Abdul Hadi's statement in coming to a finding against the petitioner, the petition for special leave to appeal must be and is hereby granted." Referring to this observation the learned Advocate for the appellant contended that the evidence of Abdul Hadi was clearly inadmissible as what was said by him to have been mentioned by Dost Muhammad could not be considered as a declaration forming part of the same transaction as the murder in question, and that therefore that evidence should be excluded and we should consider the merits of the rest of the evidence ourselves and decide if it was sufficient to sustain the conviction. As regards the merits of the other items of evidence he argued that the version that witness Akil came to the shop of the deceased just at the time the deceased had proceeded to the scene of murder and that he also arrived at the scene in time to see the occurrence was too artificial to be believed, and that the evidence of Abdul Alim that the names of the assailants were not mentioned at the scene or at the dispensary falsified the evidence of Ghulam Rasul that the deceased had told him as to who had shot him. On behalf of the Crown it was contended that the evidence of Hadi referred to above was admissible under section 6 of the Evidence Act as a spontaneous statement made by Dost Muhammad and that even if it was regarded as inadmissible it could not be said that the finding of the learned Judges of the Chief Court was influenced by it. He also argued that even if the rest of the evidence was scrutinised by this Court there would be no doubt about the truth of the prosecution version. In our opinion the contentions advanced on behalf of the appellant have to prevail and this appeal must be allowed. We are unable to accept the argument that the evidence of Abdul Hadi, to the admissibility of which objection is taken, did not influence the learned Judges in confirming the conviction of the appellant. As has been observed in the order of this Court granting special leave, it is clear from the judgments of both Tyabji, C. J. and Constantine, J. that the learned Judges were influenced by that evidence. On this point Tyabji, C. J. observed as follows :‑ "Further, besides the evidence of Akil and Ghulam Rasul, which there is no reason whatever to disbelieve, there was the clear evidence of Abdul Hadi, the compounder at the dispen sary who clearly stated that the name of appellant No. 1 trans pired immediately." Constantine, J.'s observation with regard to the evidence is as follows :‑ "Besides the corroboration of the First information there is the corroboration of the compounder that the name of Ghulam Nabi Shah had already transpired and this is admissible in so far as it refutes the argument that the Channars spent time in casing round for a Sayyed to implicate, or that Ghulam Nabi Dahraj is responsible for the accusation against Ghulam Nabi." It is, therefore, necessary to consider whether the evidence of Abdul Hadi is admissible, for if it is inadmissible then we have to exclude it and assess the value of the rest of the evidence ourselves. Section 6 of the Evidence Act and illustration (a) to it on which reliance was placed for the Crown runs thus :‑ "Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places." Illustration (a) "A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by‑standers at the beating, or so shortly before or after it as to form part of the trans action, is a relevant fact." The principle of this section seems to be that such declara tions as are referred to in the illustration should be substantially contemporaneous with the act, and the interval between the act and the declaration should not be such as to allow of fabrication or to reduce the declaration to the mere narrative of a past event. In the present case Dost Muhammad's statement to Hadi, the compounder, can come under this section only if Dost Muhammad was a by‑stander at the occurrence, but as has been stated already he appeared as a witness and said that he did not know how the murder was committed. Relying on the evidence of Ghulam Rasul, Akil and Alim, however, the learned Judges held that Dost Muhammad was an eye‑witness but was won over. Even if Dost Muhammad is thus regarded as a by stander at the occurrence in spite of his own evidence, it cannot be said that his statement to Hadi was spontaneous and contempor aneous enough to form part of the same transaction as the act to which it relates. It is clear from Hadi's evidence that the deceased was brought to him at 9 or 9‑30 p. m. while according to the prosecution the occurrence took place at sunset. Plan in this case does not indicate the distance between the scene of occurrence and the dispensary, but it cannot be great as the dispensary is in the village of occurrence itself. There is not satisfactory explanation forthcoming as to why it took two to two and a half hours to remove the injured man to the dispensary. However, the transaction of the occurrence was over at the scene, and according to Alim no assailant was named at the place of occurrence. The learned Judges while regarding Abdul Alim as an independent witness explained away this evidence of his as due to lack of courage to speak the truth because the Sayyads were all powerful in the village of occurrence. But this explanation seems to us to be based on a mere surmise. No suggestion was put to him that he was afraid of the Sayyads, and the very fact that the deceased anal his brother Ghulam Rasul have been living in the village of occurrence running a shop indicates that the Sayyads were not so powerful as the learned Judges thought them to be. Constantine, J. has referred to Alim as a respectable personage of the village and all the assessors have stated that they believed him. There can be no presump tion that because he happens to be a resident of the village of occurrence and incharge of the mosque he lacked courage to speak the truth. In this connection the learned Judges seem to have overlooked the fact that neither Akil nor Ghulam Rasul have deposed that they mentioned the names of the assailants to Alim. In fact Akil has not stated that he mentioned the names of the assailants to those who had gathered at the scene. As for Ghulam Rasul he deposed that he did not tell those who came on the scene either what the deceased had told him or that the appellant and Khudadino were the culprits, though he added later that he did mention those names to the people who had come on the scene of occurrence. None of those persons, however has been examined and as a matter of fact Ghulam Rasul said that he did not remember who they were. In these circumstances the interval between the act and the declaration to Hadi was certainly long enough to allow of fabrication. We therefore, consider that the evidence of Hadi was not admissible for the purpose for which the learned Judges acted on it; and we have already held that this inadmissible evidence influenced their decision. In view of this conclusion we proceed to consider the merits of the rest of the evidence which consists mainly of the evidence of Akil that he saw the occurrence and of Ghulam Rasul that his brother made a dying declaration to him. As regards the evidence of the identity of shod foot‑prints, as stated already, the learned Advocate for the Crown conceded that that by itself was not sufficient and could be of no use if the main evidence was not to be believed. Akil, the only witness who deposed to laving seen the appellant shoot the deceased is a Channar by caste. He has no doubt been believed by the Sessions Judge as well as the learned Judges of the Chief Court but it is significant that none of them characterise him as a disinterested witness. The entire defence evidence was disbelieved by the learned Judges on the ground that the defence witness were interested in the Sayyads. If the same standard is applied to the evidence of Akil it follows that it should be accepted with great caution. Apparently that was the reason why in the Courts below reliance was placed on what they considered to he corroborative evidence. It is true that importance should be attached to the impression made by a witness on a Judge who has taken down his deposition, but the evidence of this witness has not in our opinion been scrutinised by the Sessions Judge in all its aspects. The Sessions Judge observes about him as follows :‑ "To me there seems nothing improbable in what Akil says or in the reasons which prompted his presence at the time of the incident." There is no discussion of the evidence of Akil in the judg ment justifying this conclusion. We have carefully examined the evidence of Akil and in our opinion his version is improbable and it is not safe to rely on it. His story is that he had wheat to sell. He, therefore, came to the shop of the deceased and according to Ghulam Rasul he was `in haste as his wheat was unattended' and yet he did not tell Ghulam Rasul how much wheat he wanted to sell or enquire about the rate at which wheat would be purchased from him. The explanation of Ghulam Rasul that he did business on a small scale and his brother attended to big business is hardly acceptable, because Akil had only 20 maunds of wheat to sell and as he was in hurry one would except him to have transacted his business with Ghulam Rasul, who was a partner in the shop. It appears to us that it is highly improbable that Akil in those circumstances would have rushed in the direction in which the deceased had gone knowing what for Dost Muhammad had taken him. It seems far more likely that he waited at the shop and went to the scene of occurrence only after the shot was fired. The coincidence between the departure of the deceased from and the arrival of Akil at the shop and also between the attack on the deceased and the arrival of Akil on the scene of occurrence is so strange and artificial that it is difficult to believe his version, particularly as he does not appear to be disinterested. Besides being a Channar, he admitted in cross‑examination that at the time of the occurrence he was an accused in a case brought against him and others by the father of a servant of Bhalerakhio Shah, that that case was pending when he gave evidence and that his brother‑in‑law Abdullah was a witness against Bhalerakhio Shah in a murder case against him. These aspects of the evidence of this witness do not appear to have been considered by the Sessions Judge or the learned Judges of the Chief Court. It is clear from their judgment that the learned Judges mere not prepared to rely on him solely but looked for corroboration in the rest of the evidence. One of the points mentioned by the learned Judges in this connection is that the name of this witness appeared in the First Information Report, but, as has been indicated above, this report was made at 3 a. m., the occurrence having taken place at sunset, though the distance to the police station was only six miles. The learned Judges, however, were satisfied with the explanation given for the delay; but we are unable to accept that explanation specially when it is seen that the suggestion in the First Information Report that the murderer had been instructed by Bhalerakhio Shah to murder the deceased, on which after investigation the charge of conspiracy C was made, seems to be false as is clear from, the acquittal of all the accused on that charge. The possibility of the delay being due to deliberation cannot be reasonably excluded. That being so, the mention of Akil in the First Information Report is no guarantee of the truth of his statement. As regards the evidence of Ghulam Rasul about the deceased's dying declaration to him, it stands by itself, and he cannot be considered to be a disinterested witness. We are not impressed by his evidence in view of our observations made above with regard to the evidence of Abdul Alim. If the names of the assailants had been known or mentioned by Akil or the deceased at the scene of occurrence it is unthinkable that Alim, who attended on the deceased and helped his being carried to the dispensary would have been kept in the dark about it. In this state of evidence it seems to us extremely unsafe, if not hazardous, to accept the case for the prosecution as estab lished beyond all reasonable doubt. We, therefore set aside the conviction and sentence imposed on the appellant and acquit him. He will be released forthwith. In view of the above observations the conviction of Khudadino for abetment cannot be sustained; but he has not appealed. Without deciding as to whether in such cases we have the power to interfere in spite of their being no appeal, we recommend to the Provincial Government that the sentence imposed on Khudadino may be fully remitted. Appeal accepted.