P L D 1963 Supreme Court 17 (PLP)

CORNELIUS, C. J.‑This judgment will dispose of two Criminal Appeals, namely No. 43 of 1962 by a condemned prisoner, Sikandar, and No. 70 of 1962 by one Ranjha seeking to restore the convictions under section 302 P. P. C. of two other co‑accused in the same case, namely Abdul Aziz and Zaigham, which had been altered by the High Court in appeal to section 352, P. P. C. It should be noted that Abdul Aziz and Zaigham did not appeal against their convictions under section 352, P. P. C., the reason probably being that by the time their appeal was heard in the High Court, the maximum period of imprisonment which could have been imposed under section 352, P. P. C. had already expired. Abdul Aziz and Sikandar are brothers, and Zaigham is a friend of theirs. The case was that on account of earlier enmity, on the evening of the 21st August 1960, at about 9 p.m. these three persons assaulted the deceased Barkat, and while Abdul Aziz and Zaigham held him, Sikandar inflicted blows with a knife to the number of 5 injuring him very severely in the skull as well as the internal organs of the chest, so that he died on the way to the Thana. The scene of the attack was in a bazar in Lahore city close to Masti Gate. It was allegedly observed by three witnesses, who were Ranjha, P. W. 11, Muhammad Shafi, P. W. 12, and Muhammad Ramzan, P. W.

13. Ranjha is brother to the deceased father of Barkat, and is also his adopted father. Muhammad Shafi is also a gujjar like the deceased and said enough in his cross‑examination to satisfy the High Court that he was at pains to deny a clear and fairly close relationship between him and the deceased. 7 he third witness Muhammad Ramzan is seemingly an unconnected person. All the three witnesses came to the spot by mere chance. Ranjha' s house is not far from the scene of the occurrence, but he explained that he and the deceased Barkat had been attending to their cattle outside Masti Gate shortly before and Barkat had left for their house first, while he himself followed a few minutes later. On the way, Barkat was attacked. Muhammad Shafi had brought in some milk from outside the city and had delivered it to some customers in Rang Mahal and Gumti Bazar and then leaving his cart near Baroodkana, he was going to a certain place to procure wand when passing the spot he saw the attack. These two witnesses have been held to be unreliable by the High Court. Ranjha' s very close relationship with the deceased, his coincidental appearance on the scene, and the fact that the medical evidence of the state of the deceased's stomach did not at all conform to his evidence as to the time of Barkat' s last meal, were sufficient to satisfy the High Court that his presence on the spot was open to doubt. In the case of Muhammad Shafi, his being a chance witness and his false denial of relationship were sufficient in the opinion of the learned Judges to render it "dangerous to' place implicit reliance" on his evidence. In a case of this nature I, where natural witnesses were not produced, and there is a back ground of enmity, the High Court's estimate of the value these two witnesses appears to us to have been based on correct principle, and we accept it. The learned Judges however acted upon the solitary evidence of Muhammad Ramzan, in upholding the conviction of Sikandar though at the same time, they con sidered that it was not sufficient for upholding the convictions of Abdul Aziz and Zaigham under section 302 P. P. C, Muhammad Ramzan, s evidence was that these persons held Barkat while Sikandar stabbed him to death. Muhammad Ramzan, a city dweller, testifying to an incident occurring in the city which he happened to witness by chance, gave a novel explanation for his presence. It was that he was out trying to find a job for his younger brother and had gone to the house of one Muhammad Hussain, an employee of the Batala Engineering Co. in which he himself was employed, to ask if a job could be found for his brother Allah Ditta. Muhammad Hussain was absent from his house, and Muhammad Ramzan admitted that he never again went to him for the same purpose, explaining that he found in the meantime that his brother was not qualified for the job is question. The usual explanation given by village witnesses of wajtakar type is that they went out looking for a cow to buy, that they failed to meet the seller and that eventually they never bought that or any other cow. In essential respects, Muhammad Ramzan' s explanation is very similar. In addition the learned Judges found ample reason to doubt the accuracy of Muhammad Ramzan' s evidence on a number of ancillary questions, such as the reason of his being acquainted with the three accused persons, and as to his own residence. For Muhammad Ramzan' s name is mentioned in the F. I. R. which was lodged at the Thana some furlongs away at 9‑30 p.m., and there his address was wrongly given. Ranjha who made the report said that he obtained the address from Muhammad Ramzan, and this circumstance provided the occasion for a certain amount of cross‑examination whose result was not favourable to belief in the veracity of Muhammad Ramzan. But the strongest attack by the defence on the evidence of Muhammad Ramzan was based on his statement that he was due for night duty at the I3atala Engineering Company's Factory at 10 p.m. He remained at‑the spot after the occurrence until the police arrived, and only left after his own statement was recorded. This was at about 9‑53 p.m. and the reached the factory which was about a mile away some 7 minutes late. The learned Judges have pointed out that after recording the first information report at 9‑30 p.m., the A. S. I. who investigated the case did the following things, namely, he sent for a photographer, had a photograph taken of a blood‑stained knife which had been found on the spot, prepared a sketch of the knife and made it into a sealed parcel, prepared the injury statement of the deceased, and drew up an inquest report and sent ,the body off to the mortuary, and then had a photograph taken of the blood‑stained earth on the spot before recording the evidence of Muhammad Ramzan. It is quite obvious that all this could not have been done in a matter of 23 minutes. Since Muhammad Ramzan admitted that he appeared again before the Police at 8 a.m. the following morning, the possibility at, once arises that he was a witness of late production, and it might even be that his name was brought to as an eye‑witness at a late stage. The choice lay between doubting his statement that he gave his evidence to the Police the same night before 9‑53 p.m., and doubting the statement off the Assistant Sub‑Inspector of Police regarding all that he did after receiving the report and before sitting down to record the statement of Muhammad Ramzan. The learned Judges in the High Court did not think that this clear doubt was in capable of being cleared. They preferred to believe that Muhammad Ramzan was a genuine witness because they thought) that if he was not, then Ranjha would not have taken the risk) of naming him in the report. In order to come to this con clusion, they decided that the A. S. I. had not made "a straight forward statement." In reaching this conclusion it is perfectly clear that the learned Judges have ignored one of the cardinal principles appli cable to the resolution of all material questions arising in a criminal proceeding, namely, the principle that the benefit of every doubt must go to the accused. It being a question whether the A. S. I. was to be believed or Muhammad Ramzan was to be believed, the only course open to the learned Judges in accor dance with this recognised rule applicable to criminal justice was to hold in favour of the accused, namely, that it was doubtful whether Muhammad Ramzan was a true witness. Materials have been brought on the record by the defence to indicate that he was not free from the influence of the family of the accused. If the evidence of Muhammad Ramzan be disbelieved, there remains no evidence to sustain the conviction, for the knife found on the spot has not been traced to the ownership either of the appellant or any one else. The case becomes one of "no evidence." We allow the appeal by Sikandar setting aside his conviction and sentence direct that he be acquitted. The appeal of Ranjha consequently fails and is hereby dismissed. A. H. Order accordingly.