P L D 1964 Supreme Court 422 (PLP)

This being a case of reversal of an acquittal by the trial Judge, supported unanimously by the assessors, it is desirable that we shosuld commence by stating a fundamental principle applicable to such cases. It is that the full facts and circumstances of a case are laid open before a trial Court and thereby come within the comprehension of that Court including a jury or assessors, sitting as part of the Court, far more thoroughly and completely than is ever possible on the basis of a written record canvassed to advantage or disadvantage by learned counsel in a Court of appeal. The trial Court, being close to the scene of the occur rence and familiar with the ways and practices of the people involved, enjoys a marked advantage in the formation of a complete and balanced picture of the incident or incidents which go into the making of the prosecution case as presented by witnesses of the locality. It enjoys also another advantage of a priceless character for such appreciation, namely that the witnesses do not merely appear before it to give that evidence, which through repetition before the Police authorities and the committ ing Court they may be thought to be well schooled in, but also that which they give under the probing stresses of cross‑examina tion. A good deal of emphasis has been laid in the present case upon a very usual feature of such cross‑examination, namely, that based upon earlier statements made by the witnesses before the Police and elsewhere. But that is not the only feature of the depositions to weigh in the estimation of the degree of credence, which, as human to human, the Court is prepared to place upon the testimony. In other words, while a witness prejudices his evidence by departing significantly from an earlier statement by himself or by some other witness, and his evidence may equally be damaged by errors of other kinds, yet there is also in progress while he makes his statement, a formation of opinion in the mind of the Judge and of the jury or assessors sitting with him, as to whether, in a human way, they would be prepared to rely upon what he has been saying. When the judgment comes to be written; the attention of the writer is naturally focussed upon the written record, and it is consequently rare to find that the Judge makes reference to the impression of reliability or otherwise which any witness made upon his mind. But it is as true as any proposition can be with reference to so delicate a matter as the formation of an opinion upon oral evidence as to a past event, that, this impression of reliability or otherwise forms a substantial part of the whole bundle of reasons which determine the decision of the Court finally to rely or not to rely upon the witness. These are matters which lie within the consciousness of every person who has performed the functions of a Judge, and we draw attention to them only because it appears with clarity in the judgment under appeal that the reliance of the learned Judges upon a number of witnesses whom the trial Judge had characterised as unreliable, is based upon a number of external and almost incidental factors which they have canvassed at considerable length, but at the same time they have ignored the simple fact that having had the advantage of seeing and hearing each of the witnesses, and being familiar with the manners and modes and practices and reactions in given circumstances of the locals, the trial Judge had recorded that each of these witnesses was, in his opinion, an unreliable deponent, in the case before him. In setting aside an acquittal in a case which rested wholly on direct evidence of witnesses, as much importance must be given as in any other case, to the rule which runs through the criminal jurisprudence of our country as a golden thread that the benefit of every doubt must go to the accused person. In this case, the Judge of the trial Court had canvassed in his judgment a con siderable number of features which went to create doubt regarding the testimony of each of the aforesaid witnesses, a doubt which was clearly shared and expressly declared by the assessors. As was remarked by the Judicial Committee in the case of Sheo Swarup and others, (1934 I A 398) the fact of the acquittal by the trial Court certainly does not operate to diminish the substantial nature of such doubts or of the benefit to the accused person which must necessarily follow. That is a principle which appears to have escaped the notice of the learned Judges in this case. We must not be thought to say that such a view of the facts or the con clusion therein formed by a trial Judge or even by a jury is binding on a Court of appeal in Pakistan. A verdict by a jury upon proved facts which no reasonable body of men could conceivably reach may be reversed by the High Court on a reference. Equally, a conclusion by a Judge may be reversed, even where it has led to an acquittal. But where he has read the evidence fairly, and has formulated grounds of doubt which are not perverse or wholly illogical or unreasonable, there is a clear risk of departure from the rule of the benefit of the doubt in reversing his findings. A considerable part of the judgment of the learned Judges is taken up with exposition of the view expressed in their earlier judgment of remand for retrial, namely, that with reference to earlier statements made by a number of the witnesses to the Police, the questions put in cross‑examination to Police witnesses as well as to private witnesses were misleading and the answers were consequently unreliable. In reality, the questions of fact arising in this case were comparatively simple, and it had been indicated with some clarity in the earlier judgment of this Court that a decision on the merits was not difficult to reach with reference to the available record. It seems to us that to an appreciable extent, diversion of attention towards matters of a technical nature which might have been thought to be put out of the way by the earlier judgment of this Court, may be the cause of insufficient attention being paid to the estimation of the substantial evidence in the case, which indeed fell within a narrow compass. We propose to consider this evidence now. The deceased was named Abdul Mannan, a man aged 35 years, unmarried, between whom and the accused Abdul Majid there had been a long series of cases for over 20 years. Shortly before his death which took place in the early hours of the morning of the 21st May 1958, he had been elected to a Union Council and in the election for Chairman, he had supported the unsuccessful candidate, who had opposed Mazharul Islam, one of the accused persons. The cause of his death was a wound extending from the right side of the neck to the right angle of his mouth, cutting through all the soft structures down to the cervical vertebrae. He was killed on his bed. There was no other injury on his person. Death followed the receipt of the injury very quickly. Nine ounces of undigested food particles viz.; rice, etc., were found in his stomach. The time given for the occurrence in the initial report is 1‑30 a.m. but the state of the food in the stomach would indicate an earlier hour. The principal witness Lutfun Nehar, P. W. 1, a sister of Abdul Mannan, who lives in the same house said he ate his last meal at 9 p.m. If so, the stomach had not certainly been working on his food for more than two hours, and the murder probably took place at about 11 P.M. In considering a crime of violence, a Court is well advised to examine the circumstances of the act, and its result, for the purpose of gauging the natural probabilities. It seems quite clear that Abdul Mannan was asleep when the blow was struck. , It is also quite clear that no more than a single blow with a very sharp as well as a heavy weapon was struck. To strike a blow with such accuracy, light would undoubtedly be necessary. There was no light in the room and the night was totally dark. There was an outer door within two paces of the bed, through which escape was effected by the murder or murderers, immediately after the crime. But even if this was open, that would not give sufficient light for aiming a calculated blow with such exactness as is found. But the existence of artificial light for the striking of the blow is not the only inference to be drawn from these circumstances. A second inference of at least equal Import ance is that nothing was done to disturb the victim as he lay asleep. It is in evidence that there was a mosquito net fixed to the bed, but Lutfun Nehar stated that she saw the "mosquito curtain raised" and this may well mean that it was never let down that night. In other words, the slight disturbance which might have been caused by raising the mosquito curtain may also not have been necessary. But the more important conclusion to be drawn is that having regard to the mode in which the killing was planned to be executed, it was not necessary, and it would have been fatal to the plan for any person to climb on to the bed for the purpose of holding down the victim's feet or thighs or hands or arms. That would necessarily wake him up and make the killing a more difficult task. It would certainly make it Impossible to carry out the intention with a single blow touching no part of the victim's body except the vital part as was clearly the case here. Another matter which stands out is that the killer or killers entered the room in which Abdul Mannan was sleeping and successfully poised themselves to strike the fatal blow without disturbing any one in the house. It was a basha or but made with tarja or bamboo‑stick walls or partitions. Abdul Mannan lay sleeping in the small room to the east side and adjoining it to the west was another room in which on the same cot Lutfun Nehar and their mother, an old and deaf woman was sleeping. To the north of this room covering also a part of Abdul Mannan's room, there was a verandah. It seems that cuts were found in the tarja wall on the west of the verandah as well as in the north wall of Abdul Mannan's room, and the prosecution appeared to indicate that it was through these cuts that the intruders entered the house. Another feature to which reference is made in. the judgment of the High Court is that a communicating door between Abdul Mannan's room and his sister's room which had been bolted on both sides the night before was found to be open at the time of the occurrence, and the learned Judges have thought that it was possible that both bolts might have been drawn by the intruders to facilitate their passage when attempting to escape. That would involve a very considerable amount of noise inside the but and in both rooms, which would be inconsistent with the clear intention to despatch the deceased while asleep with a single blow disturbing no one else in the house. Another possibility which appears to have escaped notice is that the eastern door a few feet away from Abdul Mannan's cot may conceivably have been left open that night, and possibly deliberately, it being the oppressive month of May, and the room entirely lacking ventilation otherwise. Apart from the alleged cuts, there were no signs found of any intruders having passed through the verandah or having gone into Lutfun Nehar's room that night, and indeed there was some little doubt as to whether and when Lutfun Nehar saw these cuts. One further piece of material evidence needs to be mentioned and that is the discovery by the Investigating Officer the following morning of a blood‑stained dao lying at a distance of some 250 yards directly to the east of the but in question. Assuming that it is not a common feature of life in the area in question to find blood‑stained chheni daos lying in the fields, the inference may be reached that this is the weapon with which the crime was committed. The further inference is also reasonable that immediately after the crime, the man with the chheni dao proceeded from the but directly to the east for at least 250 yards. A chheni dao, it may be mentioned is an instrument in the nature of a heavy curved chopper, the blade being about 12" in length, and the edge extremely sharp. Abdul Mannan's wound could very well have been caused with a single blow of such an instrument. It is in the light of these circumstances that the evidence of Lutfun Nehar who professed to be an eye‑witness is to be appreciated. The discovery of the blood‑stained weapon of offence goes also to the appreciation of another witness, Umar Ali, P. W.

8. Both these witnesses were held unreliable by the trial Judge, and both have been found to be fully reliable by the High Court. The trial Judge in appreciating Lutfun Nehar's evidence mentioned that there was only one blow on the neck, struck when the man was asleep, and that it was after this blow was struck that Abdul Mannan shouted as he was alleged to have done. The words shouted are alleged to be "Allah‑o‑Akbar, Allah‑o‑Akbar, Majid and Ghafur have killed me." Lutfun Nehar in the adjoining room was awakened from her sleep by this cry and noticed that there was some light in the northern verandah, which went out within a second. She picked up a torch from an open suit‑case lying beside her bed and going through an opening in the northern wall of her room into the verandah she came to the freshly‑made opening through which the prosecution alleged the entry had been effected into Abdul Mannan's room by the intruders. Flashing the torch through this opening she saw five or six persons going out of the room through the eastern door, and she also saw Abdul Majid stepping down from Abdul Mannan's cot with a chheni dao in his hand, and going out through the door. In cross‑examination, she made it clear that she saw Abdul Majid with one leg on the cot, and the other on the ground. The trial Judge refused to accept this testimony. He asked himself why Abdul Majid should remain m the room all that time, while the girl took out a torch, stepped down from her bed, moved into the verandah and got up to the opening. It was only two steps to the outer door, and he could have got out fu an instant long before the girl could have come up to the opening. The trial Judge thought that the girl could have only seen the man from the back, and asked how it was possible for her to recognize him. She had admitted that she did not know a number of men living in the same homestead, and yet recognized Abdul Majid who lived in another homestead at a considerable distance. The trial Judge refused to believe that she had once visited Abdul Majid's house, that being a volunteered statement. In addition to these grounds, the trial Judge referred to the dis crepancies arising out of the evidence of this witness and three other witnesses who came to the house after the alarm was raised as to whether she had said to them that she had seen Abdul Majid going out and that the deceased had shouted the names of two assailants. There is a substantial doubt which cannot be overcome in regard to a physical fact appearing from this witness's evidence, namely, that an assailant had climbed on the bed of the victim. If this had happened, the crime could not have been committed in the manner appearing. Such a tactic moreover, was not only unnecessary for, but was clearly fatal to, the plan to despatch by a single blow while asleep The manoeuvre was stated by Lutfun Nehar to have been performed by the oldest man in the group, a man of 80, who would normally have been concerned to get away in advance of the others. The learned Judges however having heard Lutfun Nehar's evidence criticised in full by learned counsel came to the conclusion that it was "impressive and had the genuine ring of truth about it". But in their detailed examina tion of Lutfun Nehar's evidence, they did not take into account what the trial Judge had said about the death having been caused by a single blow to a sleeping victim, and that after this blow was struck, the killer or killers had no reason to stay in the room for a single instant, and further, the escape route, namely, the outer door was only two paces away so that he or they could have been out of the house long before Lutfun Nehar could come to the northern aperture to look in. The learned Judges dealt with five particular grounds of attack upon Lutfun Nehar's evidence levelled by counsel for the accused person. The first was whether Abdul Mannan could have shouted anything after having received such a wound. The learned Judges thought that he may well have shouted before he received the wound, and indeed observed that this was both probable and natural. The second point raised was how it happened that the communicating door between the two rooms was found open, and the learned Judges adopted the explanation which has already been stated above, namely, that the intruders may have shot back the bolts on both sides to provide themselves with an additional escape route. The question was raised why Lutfun Nehar did not go through the communicating door to see what was happening in her brother's room, and the learned Judges said it was because she instinctively went to the light appearing in the northern verandah. It was argued that, as stated by Lutfun Nehar, her brother's bed was attached to the west and the north fencing of his room, and therefore it was difficult to imagine a cut in the northern wall making access possible, and to this the learned Judges replied that it was quite possible, and in any case the fact remained that the intruders had got in and it must have been through this cut. Finally, the learned counsel argued that there was no explanation for Lutfun Nehar's failure to mention Abdul Majid as the killer in her earlier statements, and the learned Judges found that in fact there had been no such failure. Their final conclusion regarding Lutfun Nehar's testimony was :‑ "She has given evidence in a convincing manner and has trully and faithfully told the Court what she had seen and heard." It becomes clear that in order to accept the evidence of Lutfun Nehar the learned Judges had to deal with a number of doubts, regarding the truth of what she had said, which had impressed the minds of the trial Judge as well as the assessors as sufficiently substantial to justify a verdict of not guilty against each of the accused persons including Abdul Majid. The particular doubt as to the manner of the killing, as shown by the blow struck, upon which the trial Judge had laid stress was, regrettably, not dealt with at all, and therefore still stands. As for the others, it would seem that at least with respect to the question as to whether the deceased could have shouted, a clear doubt has been resolved in favour of the prosecution by accepting an explanation which does not consist with the proved facts. If Abdul Mannan had been awake before the blow was struck, and sufficiently in possession of his wits in order to recognize Abdul Majid and Abdul Ghafur, there can be no doubt whatsoever that he would have made some movement to avoid the blow intended. A mere instinctive movement of a free arm in the direction where the blow was being aimed would certainly have led at least to a cut on the hand or arm, and further blows would have been necessary to cause his death. The location of the injury clearly shows that the deceased was sleeping on his left side and it would appear also that his face was towards the assailant for the blow was directed from the neck towards the mouth on the right side of the face. The learned Judges observed that the doctor had not been questioned whether after receiving such an injury as he had described the deceased could still have shouted. It seems to us that when the doctor had said that the instrument had gone right through the jaw and had cut all structures down to the cervical vertebrae, he had said enough to indicate that thereafter the production of articulate sounds by the victim was not possible. This goes to the conclusion by the learned Judges that Lutfun Nehar is to be believed as to what she heard her brother cry out, because three other witnesses from neighbouring huts in the same homestead heard the same thing in their houses while they were asleep. The trial Judge had declined to accept the evidence of these persons. They are connected with the deceased and a number of them had grounds for hostility towards Abdul Majid as well. It seems plain that the resolution of the doubt raised in the judgment of the trial Judge regarding the possibility of the deceased having cried out is cot possible in the manner adopted by the learned Judges. The physical facts of the wound militate against the acceptance of the possibility of any articulate cry by the injured man. We have also wondered whether a person who had been struck so grievously would instinctively utter a cry such as "Allah‑o‑Akbar" which is ordinarily a cry of encouragement or triumph. Thus, if the killer raised this cry before making good his escape, that would be more easily credible. However that may be, the doubt which appeared to the mind of the trial Judge and influenced his decision regarding the uttering of this cry clearly persists and in not allowing the benefit of it to the accused persons, the learned Judges appears to us to have departed from a fundamental principle of criminal jurisprudence. The evidence of P. W. 8, Umar Ali, was relied upon by the High Court as supporting the case against Abdul Majid. The trial Judge had pointed out that Umar Ali had a grudge against Abdul Majid who had deposed against him earlier in a paddy‑cutting case, but the High Court thought that this circumstance was not sufficient to shake Umar Ali's veracity against Abdul Majid. Umar Ali's evidence was that hearing cries from Abdul Mannan's house, he and one Abdus Samad proceeded in that direction. Umar Ali's house is at a considerable distance to the west of Abdul Mannan's house. On the way, they met six persons of whom they recognised four, namely, Abdul Majid, Yusuf Ali, Abdul Huq and Samad. Coming on to Abdul Mannan's house they found him lying on the cot with his neck cut, but still breathing. Umar Ali mentioned what was said by Lutfun Nebar and some other persons. He admitted that he and Abdus Samad had no light with them, but they saw the six men from a distance of only 2 1/3 cubits (=4 feet). They never spoke to them. They themselves were running and the other persons too were moving swiftly. In cross‑examination, he admitted that both Abdul Majid and Yusuf Ali (another accused person) had deposed against him and in favour of one Iman Ali in a paddy‑cutting case which he had brought against Iman Ali. The trial Judge thought that Umar Ali's evidence as to the encounter and recogni tion was quite improbable and besides emphasising his enmity, he mentioned also the failure of the prosecution to produce his companion Abdus Samad, who was available to give evidence. As has been mentioned, the High Court over‑ruled these reasons and chose to rely upon Umar Ali. In so doing, it seems to us plain that they have declined to give effect to an appreciable factor of doubt regarding the truth of Umar Ali's testimony, namely, that be had a cause of enmity against Abdul Majid. This was not a case of a simple crime, but of the crime of murder following upon a series of conflicts between the parties covering along period of some 20 years, involving a considerable number of Court cases, and therefore substantial weight should have been attached to the circumstance that Umar All had a grudge against Abdul Majid. Again, there was substance in the trial Judge's view that it was improbable that on a dark night, without any light, Umar Ali should have been able to recognise four out of six people without saying a word to them, and even that these persons who were allegedly escaping from the commission of a murder should have allowed Umar Ali and his compan ion to have come within so close a distance as four feet of them. A physical factor which both Courts have not noticed is that none of the alleged assailants are shown to have had any reason to go to the west of Abdul Mannan's house. They had emerged from the eastern door, and if it be believed that Abdul Majid was carrying the dao, it must also be believed that from the house he went directly to the east for a distance of 250 yards, namely, the place where the dao was thrown away. If that be accepted, then no person coming from the west side from a considerable distance could conceivably have encountered Abdul Majid and his alleged companions. An outstanding feature of this case is that the prosecution made a deliberate and visible attempt to overcome defects arising out of certain admissions which had gone into the initial report. That report was recorded by the Investigating Officer, Ramanl Mohan, P. W. 21 at Hajiganj Police Station some six miles from the spot, at 6 a.m. on the 21st May 1958. The record of the report shows that it was made by Syed Ahmad, who is P. W. 6, and it is also signed by one Abdul Karim who is said to be the village chowkidar. S. I. Ramani Mohan was clear that this report was made by Syed Ahmad, that it was read over to him and he signed It after admitting its correctness, and that the chowkidar who was there throughout also signed. In cross -examination he confirmed this statement, adding that the chowkidar had signed as an attesting witness. The statement itself contains the following pieces of information which could not come from any person other than an intimate of the deceased. Syed Ahmad said he was khalatobhai of the deceased Abdul Mannan who at about 1‑30 a.m. shouted "Allah‑o‑Akbar, Allah‑o‑Akbar ; I am being killed." From the adjoining room, Lutfun Nehar also shouted that her brother was being killed and upon hearing these cries, Abdul Huq. Obaidul Huq, Abul Bashar and the deponent Syed Ahmad came running "from the other but" and found the outer door of Abdul Mannan's room open and blood gushing from the gaping wound in his throat and jaw. He was dead. The door between Abdul Mannan's room and that of his mother was closed and these persons themselves opened it. Syed Ahmad suspected "Abdul Ghafur son of Nuruzzaman of village Dusha and Abdul Majid, son of Akram Ali, of village Pacharuki," because there had been cases going on between them and Abdul Mannan for 20/21 years and 3/4 years respectively before this, and these persons had once before attempted to murder Abdul Mannan. Abdul Mannan had no enmity with any other person. It being quite clear that Syed Ahmad was the son of the deceased's mother's sister and thus under obligation to help by reporting the matter, in the absence of any nearer male relation, and it being clear also that Syed Ahmad himself appeared at the Police Station, the question whether he provided all the informa tion contained in the initial report or such information was furnished by some other person not directly connected with the deceased's family, would not appear to arise at all. Plainly all this information recorded at a distant thana by a Police Officer who was unconnected with the parties could only have come from Syed Ahmad, but in evidence, Syed Ahmad said that following the occurrence, he did not go into Abdul Mannan's house at all, but as he was going towards the but, he met the chowkidar Abdul Karim who gave him some information, and without going further he and the chowkidar at once proceeded to the thana where the report was made by the chowkidar, and he only signed it. It is quite patent that there was an attempt here to over‑come the defect that in the initial report, it was not said that the deceased called out the names of two persons, or that Abdul Majid was seen in the house or near the scene of the crime. To explain this, it was said that Lutfun Nehar, after seeing Abdul Huq, Obaidul Huq and the others (but not Syed Ahmad) and telling them what she had seen, become unconscious and only regained consciousness the next morning. Thus the need for explaining the statement in the initial report that the woman's room was found bolted on the inside was completely avoided. The prosecution attempted to make out that the names of Abdul Majid and Abdul Ghafur were mentioned as suspects by Abdul Karim, for the particular reason that Abdul Karim wished to save Abdul Majid, who, as stated by P. W. 8, Umar Ali, is cousin to Abdul Karim's wife. Since it was being said at the same time that Abdul Mannan had no other enemies, such conduct on Abdul Karim's part would appear quite incredible. The trial Judge found in all this as well as in certain con veniently adjusted statements made by the witnesses Abdul Huq, Abul Bashar and Ashanuzzaman, clear indications of artificiality. He was "fully convinced" that Syed Ahmad had lodged the F. I. R. and went on to observe that although the initial report is not a piece of substantive evidence, yet it is a valuable document being the first written version of the prosecution case, and in the present case it had been disowned because it did not fit fn with the evidence which was later led in Court. The matter was considered by the learned Judges and they came to the conclusion that in the circumstances, the initial report should be rejected altogether and ignored. They thought it was "a clever report in which some more suspicion has been cast upon Abdul Majid without implicating him in any respect." It was in their opinion a document tending to help the defence and noting that Syed Ahmad had said that he was forcibly taken to the thana by Abdul Karim, and further that Abdul Karim had appended his signature to the report, they observed that it was, quite reason able to think that the said chowkidar Abdul Karim should be attempting to help his cousin by marriage, namely, Abdul Karim. With respect to the learned Judges, if no one else was mentioning any name of the culprit, it would be strange indeed if the chowkidar, being under no duty at all to nominate any suspect in the case, should not only mention his own relation Abdul Majid, but add at the same time that Abdul Mannan had no other known enemy. A very great deal of risk was run by such mention and even if Abdul Majid were later acquitted, he would surely have to undergo the expense and anxiety of pro tracted proceedings, all of which could be avoided by Abdul Karim not mentioning any name at all. The circumstance that the prosecution attempted through the mouths of witnesses by obtaining statements which clearly were artificial, to get over the defect created by what had been said in the initial report created a very substantial doubt in favour of the accused persons, which had been formulated with clarity by the trial Judge. The learned Judges appear to have accepted an explanation for this feature of doubt which does not consist with natural probabilities, but what is more Important is that thereby they have resolved a plain doubt in favour of the prosecution, and that is contrary to fundamental principle. It is unnecessary to examine the judgment of the High Court further as to the treatment of the case against the other accused persons. If the evidence of Lutfun Nehar and of Umar Ali be rejected, there is no case at all against Abdul Majid. The features of doubt affecting this evidence were formulated by the trial Judge, in a manner consistent with right reason. The doubts were so substantial that to overcome them by reasons to the contrary could only have the result of giving the benefit thereof to the prosecution. The conviction of the appellant Abdul Majid cannot, consistently with right principle, be maintained, and we accordingly allow this appeal and acquit him. K. B. A. Appeal accepted.