P L D 1967 SupOVA Court 217 (PLP)

CORNELIUS, C. J.‑The four appellants in this case, Sardar Ali, Zulfiqai, Gohar Ali and Ahmad Yar stand convicted under section 364/34, P. P. C., and sentenced to undergo transportation for life. They were given special leave to appeal on certain considerations arising out of the assessment of the evidence in, the Courts below, for the purpose of re‑examining the relevant evidence, We have heard Mr. Nazir Ahmad Khan, who ha taken us through that evidence. The prosecution case is that on account 6f an illicit intimacy, two persons were killed, namely, the man Muhammad Saeed on the 12th June 1961 and the woman Mst. Saddan on the next night. Mst. Saddan was closely related to Sardar Ali, Zulfiqar and Gohar Ali appellants. Zulfiqar is brother to Mst. Saddan's deceased husband Sultan. Gohar Ali is a brother of Mst. Skddan. Sardar Ali is married to a sister of Mst. Saddan. Ahmad Yar belongs to their baradri, but is not directly related to them. These four persons were charged with a violent attack on Muhammad Saeed in the vicinity of a well, after which they carried him senseless to the kotha of one of their relations, Muhammad Nawaz and there gave him another beating as a result of which he died. They were committed for trial under section 302/34, P. P. C. Two other persons Allah Ditta and Amir Shah by name were put up before the same Magistrate . on . a charge under section 302/34, for killing Mst. Saddan. On an appreciation of the evidence, the committing Magistrate discharged these two men. The present appellants were convicted at Sessions under section 302/34 and were awarded the lesser punishment of transportation for life on the ground that Muhammad Saeed by developing illicit relations with Mst. Saddan had "offered a standing and recurring provocation to the accused". They appealed to the High Court; where the learned Judges accepted only the evidence of the first beating and held them guilty of an offence of aggravated kidnapping under section 364, P. P. C. and maintained the sentence of transportation for life. The case that they further beat Muhammad Saeed until he died consisting ok the evidence of two eye‑witnesses was held not proved beyond Reasonable doubt. The body of Muhammad Saeed was never recovered. The conclusion reached in the investigation was that it had been cut into pieces and thrown into the river Ravi. From a place allegedly indicated by one of the accused persons, some bones were recovered from the river bed on the 14th June 1961, that is only two days after the murder, but they were not identifiable and two of them were shown to be animal bones. The attack on Muhammad Saeed was reported to the Police at Thana Harappa, five miles from the spot at 10‑30 p.m., on the night of the 12th June 1961, by' Abdul Ghani, P. W. 13, a baradri' relation of the victim, reporting as an eye‑witness. His story was that that evening, when the sun was about to set, he was returning to the village from a well and Muhammad Saeed was going a little ahead of him, when he was pounced upon by the four accused persons, who came out of a jawar field. They had dangs. Cries were raised and Hukam Dad and Waryam, two other witnesses came running from their squares close by. These persons tried to save the lambardar, when they saw the accused persons picking him up and carrying him to their basti, but were warned off by the assailants, who said that it was a matter of honour and they should not interfere unless they wanted to be killed themselves. Abdul Ghani had a fear that Muhammad Saeed might be killed by the accused persons in Muhammad Nawaz's house, so he immediately went home and from there on a horse went to the Thana and made the report. In this report, he mentioned the motive for the crime; namely, that Muhammad Saeed had illicit connection with Mst. Saddan. Mr. Nazir Ahmad Khan argued that there was delay in the making of the report, but we cannot see that Abdul Ghani could have reached the Thana any earlier than about 10 a.m., even though he was riding a horse owing to the darkness. The suggestion put forward was that because the lambardar was late returning home, Abdul Ghani and others who belonged to his baradri concluded among themselves that he had been done away with and made a report against the four appellants, which was in the nature of a mere speculation. That suggestion is entirely unacceptable. The whole conduct of Abdul Ghani in going to the police sufficiently shows that he was urged to do so by a real incident. Mere delay for an hour or so in the return of Muhammad Saeed to his house would have hardly. caused any anxiety for two or three hours, that is at least up to the time when Abdul Ghani had already reached the Thana and made his report. Abdul Ghani's evidence was read to us and so was that of Waryam, P. W. 14 and Hukam Dad, P. W. 15, the other eye witnesses of the first attack. Abdul Ghani bears no enmity of any kind towards the accused persons. It seems that these three persons are among the new colonists in this village, which is described as Tukra No. 15, whereas the accused persons, who are Qureshi Syeds are the older residents, but there is no indication on the record that relations between the latter and the colonists were such that either side would be interested to fabricate false cases against members of the other side. Waryam and Hukam Dad cultivated some of Muhammad Saeed's land as tenants, but that is by itself no ground for regarding them as witnesses who would give totally false evidence of his murder. It seems that Waryam at one time was bound over under section 107, Cr. P. C., in opposition to some persons belonging to the Syed group, but he says that they compromised later. Strong support was provided for the statement of Abdul Ghani by the fact that A. S.

1. Muhammad Sadiq, who accompanied him back to the village found blood‑stained earth on the spot where the attack was made as well as two broken pieces of dangs which were blood‑stained and also a blood stained key and further he found a trail of blood drops from that spot leading up to a ahata of Muhammad Nawaz and inside that ahata also blood‑stained earth was found. The key was proved to fit a lock in use in the house of Muhammad Saeed. These discoveries are by themselves sufficient to establish the truth of the statement made by Abdul Ghani and supported by Waryam and Bukam Dad. There is evidence also that after the Thanedar Muhammad Bashir took over the investigation, the four accused persons were produced by one Ghulam Haider Shah and placed under arrest on the 15th June 1961. On the same day each of them handed over some blood‑stained clothes, which were sent to the Chemical Examiner and the Imperial Serologist along with the blood‑stained key and broken pieces of dangs and blood‑stained earth from two places in particular. The Chemical Examiner received these articles on the 29th June and analysed the stains on the 30th June reporting that they were blood. He forwarded these exhibits to the Serologist on the same day by registered post, but they were not received for some unexplained reason until the 17th July 1961 and thereafter there was further unexplained delay until the 21st August 1961, when they were subjected to further analysis. The result of the delay naturally was that much of the blood had disintegrated and a report to that effect was made with respect to all the blood‑stained articles recovered on the night of the 12th June 1961, as well as the clothes recovered from Sardar Ali and Zulfiqar, but human blood was found on the clothes, produced by Gohar Ali and Ahmad Yar appellants. Mr. Nazir Ahmad Khan argued that it was improbable that the accused persons, who had been absconding for three days should not have made away with or at least washed their blood‑stained clothes in the interval and therefore the recovery of the clothes should be regarded as doubtful. A similar argument was raised and has been dealt with by this Court in the case Nawab and others v. The State (P L D 1965 S C 522), where it has been pointed out that when as in this case, persons accused of serious offences, have had themselves presented before the police in the course of the investigation by a respectable of the village, they usually do so in order to avoid the rigors of an investigation and must be C prepared to satisfy the investigating officer that they are indeed the persons for whom the Police had been searching, so that the investigation need not be continued further. It is not unnatural that such persons should make over incriminating evidence, so that further pressure upon them or their relations should cease. No responsible Police Officer would discontinue his investigation[ merely because persons had presented themselves before him and either admitted their involvement or for the reason that they had been named in the initial report. He would need to satisfy himself that he had enough evidence to make out a complete case. It should be remembered also that in this case the motive shown is satisfaction of honour. After full examination of the relevant evidence, we are satisfied that the decision of the Courts below in respect of the first beating and the abduction which followed was correctly reached on sufficient credible evidence and we accordingly dismiss this appeal. We have observed above concerning the delay which took place in reaching the blood‑stained exhibits to the Serologist and the further delay that took place in the Serologist's laboratory before the exhaust were subjected to analysis. We have no doubt that this delay has resulted in the loss of evidence of most important nature, which was of direct relevance and value for establishing that this gruesome crime had been committed in the manner acid at the place mentioned in the initial report by a reliable eye‑witness. If the analysis had been made promptly, the prosecution might well have had in their possession evidence to show that the blood found at the spot and the blood on Mubammad Saeed's key and on the broken pieces of lathi was human blood. An element of doubt, which was left by the absence of proof to this effect, might thus have been eliminated. As it happens, in this case, the direct evidence is of such' a degree of reliability that support from such circumstantial evidence of' material exhibits was not entirely necessary for accepting the, version sworn to by Abdul Ghani. But in the great majority of, cases, circumstantial evidence of this kind is found to be essential for accepting beyond reasonable doubt the other evidence in the case, which might consist of depositions by eye witnesses or of further items of circumstantial evidence. The absence of such proof may then lead to serious failure of justice in cases where blood has been shed, which are generally cases of murder. The Courts are rightly insistent on proof regarding blood‑stained exhibits that the blood is human blood, before they will accept them in proof of an act of violence against a human being. When such circumstantial evidence is found not to be forthcoming, through fault on the part of a Government department, it is a matter to be deeply deplored. It is therefore of the utmost importance that the Serologist's Department should exercise the greatest care to see that not a day's unnecessary delay occurs in subjecting exhibits of this kind sent) to them for analysis. A copy of this judgment will be sent to the Secretary in the Ministry of Home Affairs, Government of Pakistan, for appropriate action to avoid repetition of such delays. S. A. H./A. H. Appeal dismissed.