1969 PLP 589 (SCMR)

Maulvi Mir Alam was the Imam of a mosque at Dhok Thathal which is about six miles from Sadar Police Station Rawalpindi. In the small hours of 29th June 1952, he was found dead on the floor of the mosque near his cot with three injuries, one of which, according to the medical evidence, has cut the right lung and thus caused the death. Near tha body lay a chaddar (Ex. P. 1), a pair of chappals (Ex. P. 2) and a soti (Ex. P. 3). First Information Report was made by Qaim Din Lambardar of the village (P. W. 3) at Sadar Police Station. His evidence was that about 2 or 2‑30 a.m. on being awakened and told by his wife that there was a raula in the mosque he went there and found the deceased lying murdered and noticed the above mentioned articles near the body. There was none else at that spot and Sher Zaman (P. W. 4) and several others came just after P. W. 3 went there. Both P. Ws. 3 and 4 lived very close to the mosque ; but none of the persons who gathered :there suspected the appellant or the other accused or any one else at that stage. In the First Information Report it is stated that the culprits were not known. The case for the prosecution that the appellant and the other two accused committed this murder was based on circumstantial evidence and a confession recorded by a Magistrate from accused Fazal Karim which the latter retracted. One of the circumstances relied on as connecting the appellant with the crime was that Ex. P. 1 and Ex. P. 2 found near the corpse belonged to him. Two days before the Id‑ul‑Fitar which fell on 24th or 25th June 1952, P. W. 8, Jalal, saw the chappals (Ex. P. 2) in the hands of the appellant who, on enquiry as to wherefrom he had bought them, told the witness that they were intended not for himself but for somebody else. Muhammad Shafi (P. W. 14), a dealer in shoes stated that the appellant purchased the pair of chappals (Exh. P. 2) from him two days prior to the Id for Rs. 5‑6‑

0. The version of Barkat (P. W. 12) was that he originally stitched the chaddar (Exh. P. 1) and a year later mended the same for the appellant. Evidence relating to other circumstances against the appellant was as follows. P. W. 21, the Sub‑Inspector of police, who recorded the First Information Report from P. W. 3 and started investigation in the village of occurrence deposed that after examining P. W. 8, he started looking for the appellant, but he was not found in the village and therefore, an Assistant Sub‑Inspector of police was deputed to apprehend him. The appellant was produced before the Sub‑Inspector on 2nd July 1952, when a shirt and a shalwar (Exhs. P.14 and P. 15) were seized from his person, and these clothes had stains which on chemical analysis were found to be of human blood. The appellant then, took the police to Mehr Din (P. W. 13), who had a shop at the Octroi Post of Rawalpindi and asked the witness to produce the hatchet. P. W. 2 produced it (Exh. P. 20) on which stains of human blood were found. According to the medical evidence the fatal injury could have been caused with this hatchet. P. W. 13's version was that two or three days after the Id the appellant brought the hatchet to him at midnight and asked him to keep it for him saying that he was passing through the cantonment. The witness explained that people passing his shop into the cantonment used to leave with him sticks beddings and hatchets. Thereafter, the appellant took the police to his house and from there produced a lunge (Exh. P. 21) which was seized by P. W. 21 as in his opinion one of the patches in the chaddar was of the same cloth as the lungi. Steps to arrest the other two accused were taken by the Sub Inspector of police on the 29th June after he examined Hasan (P. W. 7). The evidence of this witness given before the Committing Magistrate which was transferred under section 288, Cr. P. C. was that on the night of the occurrence at about 9 or 10 p.m. seeing the appellant and the other two accused sitting in his rakh, he asked them what they were doing there, whereupon they told him that they were sitting out in the open as it was hot. Fazal Karim accused was produced before P. W. 21 on 2nd July 1952 and Shera on 4th July 1952. Fazal Karim took the officer to his house from where he produced a knife with which one of the injuries found on the deceased could have been caused, but the origin of the, stains on this knife could not be determined. Fazal Karim made to a Magistrate a confes sional statement in which he implicated the appellant. The version in this statement, which he retracted, was that the appellant asked this accused and Shera to join him in killing the deceased because the latter had accused him of not keeping fast and not saying his prayers, that when they protested the appellant threatened to kill them if they did not join him, that on the night of occurrence they were together in rakh when villager enquired as to what they were doing there, that thereafter the appellant went to his house and came back with a chaddar, u. pair of chappals, a hatchet, a knife and a soti and that they proceeded towards the scene of occurrence and committed the murder. The confession goes on to state that Shera pressed the mouth of the deceased, that the appellant gave a blow with the hatchet on one of the sides of the deceased, and that Fazal Karim inflicted an injury on the neck with the knife which the appellant handed over to him. It is also stated in the confession that the appellant handed over the hatchet to Mehr Din at Octroi Post No. 22 that night. Evidence about the motive was to the effect that a few days prior to the occurrence the deceased pointed out to the appellant that he was not saying his prayers or keeping fast, that during the month of Ramzan the appellant had declined to say his prayers behind the deceased as the deceased had allowed Niaz Ali (P. W. 6) who was keeping a woman to offer prayers in the mosque, that the appellant was giving out that the deceased should be turned out of the mosque and that on the Id day there was an altercation between the deceased and the appellant as the nimaz was over by the time he came to the mosque. It was also stated that the deceased had called the appellant a wahabi. The appellant's defence was one of denial of the prosecution case. He did not commit the murder. None of the articles stated to be his belonged to him. He did not abscond, nor did he keep a blood‑stained hatchet with Mehr Din (P. W. 13). He was falsely implicated. No evidence was adduced for the defence. The learned Judges in confirming the conviction of the appellant relied only on the circumstantial evidence except that relating to the identity of the chappals found at the scene of murder and came to the conclusion that the circumstances they relied on could be explained only on the hypothesis that the appellant was concerned in the murder. Leave to appeal was granted on a petition received from jail as on a perusal of the judgment of the learned Judges, this Court considered it necessary to scrutinise the evidence. The learned Advocate appointed to appear for the appellant took us through the evidence and contended that the various circumstances from which the learned Judges inferred that the appellant participated in the murder were not fully established and that the case that the chaddar found at the scene of murder belonged to the appellant was inconsistent with the theory that it was placed at the spot to mislead the police. He further argued that the conclusion of the learned Judges that the appellant was not found in the village soon after the murder was not based on any definite evidence and that in scrutinising the evidence regarding these circumstances the learned Judges considered only whether the witnesses had any reason to give false evidence against the appellant and not the probability or otherwise of their version. The learned Advocate‑General, on the other hand, could urge only that the learned Judges bad believed the evidence and if the evidence was believed the case was made out. Appreciation of evidence both with regard to its credibility and adequacy was no doubt the function of the Courts below, but that function should be discharged in accordance with the correct principles. This, in our opinion, has not been done in this case and we think there is substance in the contentions advanced for the appellant. In determining whether the chaddar belonged to the appellant the learned Judges mainly relied on the evidence of the tailor that he could recognise the stitches he had put in mending it, but they did not consider whether it was likely at all that the appellant if he bad participated in the murder, would have left his chaddar at the spot. Nor have they noticed that the theory of the prosecution in this respect is inconsistent with the evidence that the chaddar belongs to the appellant. The Sessions Judge observes in his judgment "the prosecution case is that the chappals were left at the spot in order to mislead". This argument is apparently based on the confession of Fazal Karim accused which is to the effect that before setting out for the mosque the appellant went to his house and brought a chaddar and a pair of chappals along with the hatchet and the knife. It is unthinkable that in order to mislead the police the appellant would have left at the spot articles which could be proved to be his. As for the confession the learned Judges were right in not basing on it their findings against the appellant. As regards the conclusion of the learned Judges that the appellant was not found in his village soon after the murder, the evidence relied on by them is that of P. Ws. 4 and 21, P. W. 4 deposed that the appellant was not found in his house when the police sent for him and that he did not see the appellant in the village for two days after the occurrence, but these statements do not show that the witness himself went to his house. It is not the case for the prosecution that P. W. 4, was deputed to search for the appellant in the village. P. W. 2, deposed that on the 29th he started looking for the appellant but he could not be found. In cross‑examination, however the witness admitted that he himself did not go the appellant's house. His further evidence was that he deputed his A. S. I. Abdul Ghani to arrest the appellant and that that officer produced the appellant before him on the 2nd July, but in cross‑examination he said that the A. S. I went with him to the spot and was with him till 3rd July and that he could not say when the A. S. I. left him to go in search of the appellant. A. S. I. Abdul Ghani was not examined, nor have we been shown anything on the record indicating where and when the appellant was arrested. P. W. 4 first deposed that the appellant appeared before the police two days after the occurrence, and though he added later that the A. S. I. arrested the appellant, his last statement on the subject was that Lambardar Qaim Din brought him from his house. In this state of evidence it cannot be said that it was proved that the appellant absconded soon after the murder. Regarding the finding of the learned Judges that blood stained clothes were seized from the appellant's person when he was produced by the A. S. I. before P. W. 21, there is evidence in support of it; but the learned Judges did not consider the apparent inconsistency between that version and the evidence that on the night of occurrence the appellant took care to exchange his shoes for Fazal Karim's chappals and walked a distance of 4 to 6 miles to keep the hatchet with P. W.

13. As regards this incident P. W. 13's evidence supports the prosecution if his statement that the hatchet was recovered from his on the 30th June is overlooked as due to a mistake; but here again it is surprising that the appellant, if he walked all that distance to screte the weapon of offence, did not take the elementary precaution of washing off its stains, which alone could connect it with the crime. These inconsistencies which raise a serious doubt as to whether the evidence in respect of these circumstances can be believed were not taken into consideration by the Courts below. The prosecution version of the motive is supported by evidence, which has been discussed by the learned Judges, but the motive alleged is weak; and even if it were otherwise it would have at best only raised a suspicion, which however, strong is not proof. We, therefore, consider that the case for the prosecution against the appellant has not been proved beyond reasonable doubt and accordingly set aside his conviction and sentence and acquit him. He will be set a liberty forthwith. Appeal accepted.