P (PLP)

ABDUL RASHID, C.J.‑

The appellant, Ahmad, was tried for an offence under section 302 of the Pakistan Penal Code in respect of the murder of his wife, Mst. Rahiman, by the Sessions Judge of Multan. The trial resulted in an acquittal. Against this decision, the Provincial Government preferred an appeal in the High Court of Judicature at Lahore. This appeal was heard by Muhammad Sharif and N. R. Kayani, JJ. The appeal was accepted on the 20th April; 1950. The appellant was convicted under section 302 and sentenced to transportation for life. By our order, dated the 7th December, 1950, Ahmad was granted special leave to appeal to this Court. The facts of the case are few and simple. Ahmad and Mst. Rahiman were in love with each other. Piru, the brother of Mst. Rahiman, was opposed to the marriage of Mst. Rahiman with Ahmad appellant. 141st. Rahiman, therefore, eloped with Ahmad and got married to him. The case for the prosecution is that on the 2nd of June 1948, Ahmad, appellant, and lust. Rahiman were sleeping in the house of Walli, the father of Ahmad. The appellant wanted to have sexual intercourse with his wife. She refused to allow him to cohabit with her. . Ahmad got hold of a hatchet and inflicted two serious injuries on the neck of lost. Rahiman. The neck of the deceased was almost com pletely severed from the body. According to the evidence of the doctor, the death of MO. Rahiman took place at about 11‑30 p.m. on the 2nd of June. The case for the Crown is supported by Mst. Jannat (P. W. 9), who was sleeping in the same house with Mst. Rahiman, and who states that she saw Mst. Rahiman immediately after the murder had been committed. The only other item of evidence consists of the extra judicial confession of the appellant made before Isan Shah, Lambardar, Lai, Chaukidar, and Usman. The defence bf the accused was that at the time of occurrence, he was irrigating his field. At about mid‑night, his father raised an outcry and he came to the house, and on reaching there, found his wife lying murdered. The Sessions judge held that Mst. Jannat could not be regard ed as an eyewitness of the occurrence, and that if the accused appellant came to the house arid found his wife murdered, and stood by her side "the position of the accused would not apparently be inconsistent with the accused having been seen by lust. Jannat after the crime had been committed." The evidence of the witnesses relating to the extra‑judicial confession was carefully analysed by the learned Sessions judge, and he came to the conclusion that in view of the discrepancies in the statements of Mst. Jannat (P. W. and Isan Shah (P. W.7) it was clear that one of them not telling the truth, and that as such their evidence could not be calculated to inspire confidence. The Sessions judge, there fore, held that "In the circumstances the prosecution must be held to have failed to connect by any dependable evidence the accused with the actual commission of the crime". The appel lant was given the benefit, of doubt and acquitted. Mr. Justice Kayani `was Legal Remembrancer to the Government, Punjab, in March, 1949. He examined the whole evidence as an executive officer, and by his note dated the 31st of March advised the Provincial Government to prefer an appeal against the order of acquittal. Mr. Justice Kayani was one of the judges who on the 26th of April, 1949, admitted the appeal to a hearing and" ordered the issue of non‑bailable warrants for the arrest of the appellant. On the 20th of April, 1950, Mr. Justice Kayani as a judge of the High Court at Lahore also heard the appeal against the order of acquittal and sentenced the appellant to transportation for life. It has been held by us in the case of Ghulam Rasul v. The Crown P. L. D. 1951 F. C. 62 that where the Legal Remembrancer has advised the Crown to file an appeal against an order of acquittal in a murder case, and he has subsequently been appointed a judge of the High Court, and forms a Member of the Bench who hears the appeal, the Bench cannot be regarded as having been properly constituted. The disposal of an appeal by a Bench of this type amounts to an illegality and not merely an irregularity. The judgment delivered, under these circumstances, has to be eliminated from consideration altogether. We further held that once this Court has arrived at the decision that the Bench of the High Court was not properly constituted, two courses were open to this Court. It could either set aside the judgment in appeal and call upon the High Court to constitute another Bench of which the judge who should not have been the Member of the Bench should not be a member, or, in the alternative, to hear the appeal itself. If the ease were a simple one, this Court would adopt the second alternative, and avoid further delay by deciding the case on the merits. It was further observed in this judgment that this course was also in accordance with the procedure generally adopted by the judicial Committee of the Privy Council. In the present case, as the High Court judgment has to be eliminated from consideration, this case must be regarded as one in which an appeal by the Provincial Government against the order of acquittal passed by the Sessions judge was being dealt with by this Court. Looking at the case from that point of view, we find that apart from the confession Mst. Jannat is the solitary witness in the case. After carefully examining her testi mony, I have reached the conclusion that her evidence cannot be relied upon as it is full of improbabilities, and is at variance with certain facts established on the record by unimpeachable evidence. Mst. Jannat had been working as a maid‑servant in the house of Walli, the fattier of Ahmad, appellant, only for four days prior to the night of occurrence. Walli's wife, his son, the appellant, Mst. Rahiman, deceased, were the other members of the family. On the night of occurrence, all the inmates of the house were sluing in the compound of the house. Mst. Jannat states that she was awakened by the cries of her child and heard the gurgling voice of Mst. Rahiman, deceased, and saw Ahmad, appellant, standing by the side of his murdered wife with a hatchet in his hand. She did not see Ahmad pulling out the hatchet from the wound in the neck of the deceased. She saw ‑that the hatchet was blood‑stained. According to her testimony, the appellant remained standing by the side of his murdered wife until Isan Shah, Lambardar, came to the scene of occurrence. The blood‑stained hatchet was then handed over by the accused to the Lambardar. It is apparent from the testimony of the other witnesses that the Lambardar came to the scene of occurrence almost at morning prayer time. According to the medical evidence, the deceased was killed at about 11‑30 p.m. It is impossible to believe that after killing his wife the appellant would continue to stand by the side of his dead wife for about five hours. If the murder was committed before mid‑night, and if MO. Jannat woke up immediately the murder was committed, the intimation to the Lambardar would have reached him by mid‑night. Again, if we believe Mst. Jannat, the appellant never left the scene of occurrence, and he had the blood‑stained hatchet in his hand, when it was taken away by Isan Shah, Lambardar, from him on his arrival, still we find from the testimony of the Sub‑Inspector of Police that there were no blood‑stains on the hatchet when it was handed over by the Lambardar to the police. The Sub‑Inspector of Police is definite that the hatchet was not at all stained with blood when it was produced before him by P. W. Isan Shah. The Sub‑Inspector further states that he did not take into pos session any of the clothes worn by the accused as none of those clothes had any blood‑stains on them. It is significant that no mention of an extra judicial confession was made in the statement of Mst. Jannat, though she was present on the scene of occurrence when the Lambardar reached there. What took place between 11‑30 .p m. and 5‑30 a.m. is a com plete mystery. It might well be that the statement of the accused at the trial that at the time of occurrence re was not present in his house, that he was irrigating his land at some distance from the scene of occurrence, and that he rushed to his house on an outcry raised by his father, is correct. Mst. Jannat stated in her cross‑examination "that Ahmad accused was stating on the night of occurrence that it was his turn of water to irrigate the field." It appears, therefore, that the defence that was taken up at the trial was revealed by the accused even be fore a report had been made to the police against him. Usman (P. W. 8) states that he reached the place of occur rence even before the Lambardar. He found the appellant sitting at some distance from the dead body of Mst. Rahiman and Mst. Jannat, and the mother of the appellant, sitting near the dead body in the compound of the house. Immediately on Usman's arrival, Ahmad told him on inquiry that he had mur dered his wife with the hatchet as she was not willing to cohabit with him. Usman further states that Mst. Jannat told him on the spot that she found Ahmad accused pulling out the hatchet from the wound in the neck of the deceased. The statement of Usman as to the time when 61st. Jannat woke up is, therefore, in conflict With the statement of Mst. Jannat. Accord ing to Usman, at the time Mst. Jannat claimed to be an eye witness. But at the trial Mst. Jannat stated that the only inci dent that she saw was that Mst.Rahiman was making a gurgling noise and the appellant was standing by the side of her cot with a blood‑stained hatchet' in his hand. No motive on the part of the appellant to murder his wife has been established. The appellant is 16 years of age. Mst. Rahiman, deceased, according to the medical evidence, was 16 or 17 years of age. A few months before the occurrence, Mst. Rahiman had eloped with the appellant as her brother, Piru, would not allow her to marry the appellant. It was, therefore, highly unlikely that a young bride would refuse sexual intercourse to her husband and lover on the night of occurrence. It is still more unlikely that if she refused to cohabit with him, he would immediately take up a hatchet and brutally murdered the woman he had married a few months earlier in the teeth, of opposition. There is no evidence whatever that Mst. Rahiman and the appellant were not pulling on amicably with each other prior to the night of occurrence. An extra judicial confession in this country must be received with the utmost caution. In the present case, the testimony of Mst. Jannat being in itself unsatisfactory cannot be regarded as providing sufficient corroboration of the alleged confession. Before an order of acquittal is reversed, it must be shown that the judgment of the Sessions judge was unreasonable or manifestly wrong. If two conclusions were equally possible, an order of acquittal should not have been reversed. For the reasons given above, I am of the view that the Sessions Judge was right in holding that the evidence for the prosecution was insufficient to connect the present appellant with the commission of the crime. I would, therefore, allow this appeal, set aside the judgment of the High Court of Judica ture at Lahore, and acquit the appellant. He shall be set at liberty forthwith. A. RAHMAN, J.‑I agree. A. S. M. AKRAM, J.‑I agree. A. H Appeal allowed.