P L D 1969 Supreme Court 127 (PLP)

SAJJAD AHMAD, J.‑--The five appellants, namely, Habibullah, Sher, Khakan, Ghafoor and Ahmad, were convicted under section 302/34, P. P. C. for the murder of their co‑villager, Allah Wasayo, by the learned Additional Sessions Judge, Larkana. The first three were sentenced to death and the last two to transportation for life. Their appeal in the High Court of West Pakistan, Karachi bench, was dismissed. Two separate applications for leave to appeal were filed in this Court, the first through jail by Sher, Khakan and Habibullah and the second; a regular petition by Ghafoor and Ahmad in which Habibullah also joined. Both the petitions were allowed by separate orders, dated the 6th of September 1967, and the 12th of February 1968, respectively, as it was considered necessary "for ensuring safe dispensation of justice to re‑examine the evidence which consisted of a single eye‑witness, namely, Khuda Bakhsh, who was .not on good terms with the appellants". Ahmad, appellant, was a cousin of the deceased and his immediate neighbour. The other appellants do not bear any relationship with Ahmad, although some of them are related inter se. Sher is a cousin of Ghafoor and Habibullah is married to the sister of Khakan, but it is not clear how Habibullah and Khakan are connected with Ghafoor and Sher. It was alleged that Sher, appellant, had a daughter by the name, Mst. Pathani, who lived next to the house of Mst. Panna Khatoon, sister of deceased. About a fortnight before the occurrence which took place at 9‑30 p.m. on the 30th of October 1963, the deceased was seen coming out of his sister's house which created a suspicion in the mind of Shahan, a son of Sher, that he was having an affair with Mst. Pathani. This suspicion was alleged as the motive for the murder of the deceased, although it was not supported by the learned Assistant Prosecutor at the trial. The learned Additional Sessions Judge also thought that the real motive was some other than that suggested by the prosecution. According to him the appellants had possibly murdered the deceased for the sake of his agricultural land. This, however, is equally conjectural. The High Court has agreed with the learned trial Judge on the point of motive. It has, however, reiterated as a settled proposition of law that the prosecution need not prove the real motive for the crime by an accused person if his guilt is otherwise proved by reliable and cogent evidence. It has held that the present case is of the type in which absence of proof of real motive was not fatal to the prosecution case. In ordinary human conduct where killing takes place by design, it is not without a motive strong or weak. This is no to say that murders are not committed wantonly without any motive whatsoever. Motiveless murders do occur owing to mad or reckless acts of inhuman nature. Sometimes a motive lies mysteriously hidden in the mind of the killer with no means to dig it out on the surface. But it may be stated as a rule of A prudence in judging human conduct that where a motive is alleged by the prosecution which is found to be false, it becomes all the more necessary to scrutinize the credentials of the witnesses who by their evidence direct or indirect speak about the guilt of an accused person on the premises of a false motive. In the present case the alleged motive being absent and found to be untrue, the fourts should have been very much on their guard to accept the story of the prosecution of which the motive was an important constituent and which depended for its acceptance on the statement of a single witness who supported that story including the motive. It is necessary to state here the prosecution case given by this sole eye‑witness, P. W. Khuda Bakhsh. He is a son of a cousin of the deceased and was also in his employment to look after his cattle and plough his land. He is also a cousin of Ahmad, appellant, who as stated above is also a cousin of the deceased. He deposed that at tripahri time on the day of occurrence (30th of October 1963), Ahmad, appellant, came to the house of P. W., Mst. Azizan, mother of the deceased, and invited him to a cinema show at Larkana. The deceased agreed. Khuda Bakhsh also expressed a desire to join. At sunset time they set out on two cycles; Ahmad on his own and Allah Wasaya carrying Khuda Bakhsh on his cycle. After the show which ended at about 9‑30 p: m. they returned home, this time appellant, Ahmad, sat on the carrier of his cycle which was driven by the deceased and Khuda Bakhah rode on the latter's cycle. When they reached the bank of Fateh Wah on a kacha road near the garden of one Hayat Bhutto, Ahmad asked the deceased to stop the cycle as his shirt had got entangled in the wheel. They got down from the cycle and Ahmad shouted loudly `Ache Viyo' (has arrived). On this the appellant, Habibullah, emerged from the trees with a hatchet and gave a blow to the deceased, which was warded off by the deceased and Khuda Bakhsh. Thereafter the appellants, Sher, Khakan and Ghafoor came out similarly armed with hatchets. Ghafoor held Khuda Bakhsh in his grip and pushed him aside. His shirt was torn in this process. Sher, Khakan and Habibullah struck 'the deceased with their hatchets. Ahmad who was unarmed did not take any part in the beating and ran away on seeing Allah Wasayo injured. Khuda Bakhsh raised cries but no body came at that time. Habibullah threatened him that if he gave evidence against them, they would kill him. The rest of the accused then also ran away. Khuda Bakhsh went to his village and informed Mst. Azizan, the mother of the deceased about the incident. He rode on a cycle passing through village Jamali consisting of about 30 houses raising cries which did not attract .any one. Shah Nawaz Bhutto who lived near the house of Mst. Azizan was the second person to be informed. All the three then came to the wardat passing through village Jamali but did not inform any one of the residents there. At the wardat they raised cries again when Muhammad Hassan Jamali, P. W., and other persons turned up. According to Khuda Bakhsh when these persons came at the wardat in the first instance, he did not tell them that he had witnessed the murder. He stated that after half an hour he told them about the incident and Mst. Azizan also repeated the story. Mst. Azizan thereafter went to Taluka Police Station situated at a distance of 2 miles from the wardat and lodged the First Information Report the same night at 11‑45 p m. In this report Mst. Azizan recounted the facts as given to her by Khuda Bakhsh already reproduced above. However, the F. I. R. contains two significant omissions and one striking departure from the story as narrated at the trial by Khuda Bakhsh. It is not mentioned in the F. I. R. that Ahmad, appellant, had shouted `Ache Veyo' (has arrived) on getting down from the cycle near the scene of occurrence as alleged by Khuda Bakhsh in his statement at the trial. This omission is important as this call allegedly made by Ahmad as a signal to the co‑accused to attack the victim is the only act attributed to Ahmad, appellant, for complicity in this crime, besides luring away the deceased to the cinema show. He did not take any part in the assault on the deceased. He had instead run away after seeing the deceased in an injured condition. The second omission is about, the shirt of Khuda Bakhsh which according to his statement was torn when Ghafoor gripped him and pushed him aside. If really Khuda Bakhsh was present and his shirt was torn in the struggle, it was an important circumstance which could not have been missed. The striking departure in the F. I. R. from the statement of Khuda Bakhsh is in regard to the presence of Muhammad Hassan Jamali, P. W., at the wardat. According to the statement of Khuda Bakhsh, P. W. Muhammad Hassan Jamali had come to the spot after they had returned to the ‑wardat from the village. It was at that time that both he and Mst. Azizan informed him about the occurrence. In the F. I. R. it is stated that Shah Nawaz Bhutto and other residents of Kot Ali Murad (village of the deceased) were informed and later on one Haji Jio was sent for and told about the incident who had directed the filing of the report. Significantly the F. I. R. does not mention that. Khuda Bakhsh had also returned to the wardat. Instead it is stated therein that Mst. Azizan and Shah Nawaz: Bhutto came to the wardat followed by the other villagers. The name of Muhammad Hassan Jamali is conspicuously absent in the F. I. R. The post‑mortem of the deceased was conducted by Dr. Badaruddin on the 31st of October 1963. Four incised wounds were found on his body, first, a transverse incised wound 7" x 2" x deep to great blood vessels of the neck on both the sides. His neck was almost cut being attached by a tag of skin only. The second was an incised injury also on the neck which had cut the fifth cervical vertebrae on the left lower outer part of the neck. The third which was 4" x 1" had cut the 1st left rib above the middle of left collar bone. The fourth was any incised wound 1" x 1 " x muscle deep on the front of the right shoulder. An analysis of the statement of P. W. Khuda Bakhsh the sole eye‑witness in the case brings to surface certain inherent improbabilities in the story given by him. It was stressed by the learned Additional Advocate‑General that his relationship with the deceased is set off by his relationship with Ahmad, appellant, and he should, therefore, be deemed as an impartial witness. I do not think that he can pass off as an impartial witness on that score. There seems to be no love lost between him and' Ahmad appellant. He had admitted in his cross‑examination that the accused had beaten him about a month before the incident as they wanted him to leave the land which he was ploughing for Allah Wasayo, deceased. According to the learned Additional Advocate‑General this was a gratuitous admission which the witness had made to favour the accused as there was no external proof of that beating. The witness has to be taken on his own words. If he has made a false concession in favour of the accused persons and has compromised his integrity, his veracity is evidently damaged. If he is capable of making a false statement for one party he is equally capable of making it for the sake of the other party. But the inherent improbabilities in his story are more important. As pointed out by Mr. Tufail Ali A. Rahman, learned counsel for the: appellants, if Ahmad appellant was wanting to decoy the deceased with a design to kill him, he would have spurned the company of Khuda Bakhsh for the cinema show. But if Khuda Bakhsh had accompanied the deceased and Ahmad to the cinema show and was present at the time of occurrence, it is extremely unlikely that he could have got away with merely a tear in his shirt. He was allegedly seized by Ghafoor appellant and had also tried along with the deceased to ward off the blows initially given to the deceased. It was rightly stressed by Mr. Tufail Ali A. Rahman that the five accused persons bent on a murderous adventure would not have spared Khuda Bakhsh in the circumstances. They could have conveniently disposed him off to destroy the only source of the proof of their crime. Khuda Bakhsh stated that he had put the counter‑foil of the cinema ticket purchased for him in his shirt which, however, was not produced during the investigation. The injuries on the deceased did not indicate that four persons had pounced upon him and caused him hatchet blows one after the other as alleged by Khuda Bakhsh. It is difficult to believe that each one of them stopped short at giving just one blow each. All the injuries on the deceased could have easily been caused by one or two culprits between themselves. It is difficult to get away from the impression that the number of the accused persons has been added up Khakan and Habibullah have no apparent connection with the other accused persons to have joined in the execution of this murder, nor had Ahmad, appellant, any truck with the co‑appellants to bring about the murder of his own relative. The learned trial Judge has accepted the version of Khuda Bakhsh on the ground that his statement is consistent with his previous statement recorded under section 164 of the Criminal Procedure Code. A false statement cannot become true merely by its consistent or constant repetition. The Courts below have also referred to the statement of Muhammad Hassan Jamali, P. W., as a corroborative proof of the testimony of Khuda Bakhsh. To my mind his statement is of no use whatsoever and was plainly inadmissible. As already stated above, he is not one of the persons mentioned in the F. I. R. to whom information was imparted by Khuda Bakhsh immediately after the occurrence. At the trial Khuda Bakhsh had stated that while going from the wardat to village (Kot Ali Murad) and returning from there to the wardat he had passed through the otak of this witness in village Jamali, raising cries, but he did not contact him. The person who was first informed of the occurrence in the village, was Shah Nawaz who has not been examined by the prosecution. The other person mentioned in the F. I. R. who was informed of the incident at the wardat both by Khuda Bakhsh and Mst. Azizan is Haji Jio who was also not produced by the prosecution. According to Khuda Bakhsh, Muhammad Hassan Jamali came to the spot after Kbuda Bakhsh had returned there along with Mst. Azizan and Shah Nawaz and he (Muhammad Hassan Jamali) was informed about this incident half an hour later. The question arises whether on these facts, the statement of Muhammad Hassan samali is admissible under any provision of the Evidence Act. The learned Additional Advocate‑General conceded that this statement not being that of a by‑stander as forming part of the Re‑gestae, was not admissible under section 6 of the Evidence Act. He argued that it was admissible under section 157 of the Evidence Act in corroboration of the statement of P. W., Khuda Bakhsh. The former statement of a witness to furnish corroboration under section 157 can be proved only if it was made "at or about the time" when the fact took place. The factor of time mentioned in this section is very important to serve as a safeguard against fabrication of false evidence. The words "at or about the time" mean that the statement must be made at once or at least shortly after the event, when a. reasonable opportunity for making it presents itself. The object is to permit the use of such statements which are made at the time when the mind of witness is still so freshly connected with the events as to make their description accurate. If time for reflection passes between the event and the subsequent statement, the latter is not only useless, but on account of easy procurement by confirmatory sources, it may be really dangerous to allow its admission. This would be putting a premium on fabricated evidence. Khuda Bakhsh, on his own version had informed Muhammad Hassan Jamali about the occurrence after a long delay and after the incident had already been repeated to other persons, namely, Shah Nawaz and others who were not examined by the prosecution. In my view, therefore, the statement of Muhammad Hassan Jamali is of no avail to the prosecution. But as I have already held that the statement of Khuda Bakhsh itself is unbelievable, it cannot derive any strength from its repetition to other persons even if the affirmations of this repetition by others were admissible under the law. Giving the case my anxious consideration I have reached the conclusion, that in judging the evidence of Khuda Bakhsh, which suffered from grave doubts and improbabilities, the Courts below have not acted in conformity with judicial standards for the appraisement of such testimony on a murder charge. It was a fit case where the benefit of doubt should have been extended to the appellants. I would, therefore,, accept this appeal, set aside the convictions and sentences of the appellants. They are to be released forthwith if not wanted in any other case. QADEERUDDIN AFIMAD, J.‑

I agree. HAMOODUR RAHMAN, C. J.‑

I have had the advantage of perusing the judgment proposed to be delivered by my learned brother, Sajjad Ahmad Jan, J., in the appeal of Habibullah and others v. The State (Criminal Appeal No. K‑22 of 1968), and I am in general agreement with him that it would be wholly unsafe to uphold the convictions of the five appellants in this case upon the testimony of Khuda Bakhsh, the sole eye‑witness, by reason of not only the inherent improbabilities in the story unfolded by him but also of the serious infirmities in his evidence delineated in the judgment. I am also in agreement with him that in this view of the matter the corroboration sought to be given to his evidence by Muhammad Hassan Jamali was, of no value, for, if Khuda Bakhsh himself was unbelievable, the corroborating evidence was also unbelievable. But I regret my inability to subscribe to his view that the evidence of Muhammad Hassan Jamali was "plainly inadmissible" even under section 157 of the Evidence Act, because, it was made: about half an hour after the occurrence and after Khuda Bakhsh had passed and re‑passed his house twice. The weight to be attached to a piece of evidence is entirely a different thing from the admissibility of such evidence. Section 157 of the Evidence Act prescribes an exception to the general rule against admissibility of hearsay evidence upon the conditions prescribed therein, and such statements have always been held to be legally admissible in this sub‑continent as corroboration if the conditions are fulfilled, apart from the question of the weight or value to be attached to such statements. The conditions laid down in this section are: ‑ (i) that the former statement must relate to the same fact ; (ii) that it must be made at or about the time when the fact took place, or (iii) before any authority legally competent to investigate the fact. The use of the words "about the time" unmistakably postulates that some interval of time may well elapse between the fact and the statement. As to what should be this length of time is a question about which no hard and fast rule can be laid down nor can any rule of thumb be adopted, but all that can be said is that it must be made either at once or at least as soon thereafter as a reasonable opportunity presents itself. What is reasonable must inevitably be a question of fact to be determined in the light of the evidence in each case. But it is essential to remember that there is a material difference between this section and section 6 of the Evidence Act which only makes declarations accompanying acts admissible. Even in this case, though the contemporaneousness must be substantial it will be appreciated that it cannot be literal. The question, therefore, that has to be determined when pronouncing upon the admissibility of evidence as compared to its weight is as to whether the statement sought to be put in as a corroborative statement under section 157, was made as speedily as could reasonably be expected in the circumstances of the case. Otherwise, merely taking into consideration the time factor may lead to dangerous results. The onus, it must also be remembered, of proving the conditions of admissibility of such evidence under section 157 is clearly on the prosecution and it must establish those conditions by clear and unequivocal evidence before it can be allowed to put such a statement in. But after such a statement had been put in, then the question will arise as to what weight is to be given to it. Even though it may be legally admissible, it may well be that the weight to be attached to it may be nil which was, in my opinion, the position in the present case. Although the evidence of Jamali was admissible in evidence under section 15'7, the weight to be attached to it was nil, because, he had sought to corroborate a person who had himself been found to be a liar. There is abundant case‑law on the subject to show that such statements have been held to be admissible, even when made several hours later, as in the case of Rameshwar v. The State of Rajasthan (A I R 1952 S C (Ind.) 54) and Rex v. Cummings ((1948) 1 A E R 551); where the Court of Appeal in England also upheld the admission of a previous statement of a prosecutrix made on the next day as a statement made as early as she could. With these observations I agree that this appeal should be accepted and the convictions and sentences of the appellants set aside. K. B. A. Appeal accepted.