P L D 1963 (W (PLP)

"Admittedly three persons had left the dera with Latif deceased. They were the present two accused and Muhammad Khan. What happened after remained a mystery. It was not unlikely that any one of them might have been responsible for causing the stab injuries to Latif deceased without others knowing about it."

6. In para. 21 of the judgment the learned Judge refers to the circumstance that witness Muhammad Sarwar when he woke up to urinate, found respondent Fazal Karim, Bashir and Muhammad Khan absconding accused returning to the dera and that Latif deceased was not with them. He has not discussed or considered the effect of this evidence against the respondents. If Muhammad Sarwar is believed that he had seen the respondents taking Bashir to the cinema there is no reason to disbelieve Muhammad Sarwar that he also saw the two respondents with Muhammad Khan return at about 2 a.‑.n. and that Latif was not with them, and also his evidence that the two respondents had left the dera between 4 and 5 a.m. on the morning of the 16th September 1959. We believe this evidence to be reliable and true. The learned Judge's remarks about the effect of this evidence quoted from the judgment of the learned Judge are not justified since this is not the only piece of evidence against the respondents and this piece of evidence cannot be taken in isolation from the other pieces of evidence. All the pieces of evidence from part of one chain of circumstances against the respondents and all these pieces have to be considered in that perspective. 7. (iv) The next important piece of evidence against the res pondents is the evidence of their absconding. This piece of evidence has been enumerated in para. 22 of the judgment, but when the Judge came to assess and appraise the evidence against the respondents, it escaped his notice. As against respondents Bashir the evidence comes from P. W. 16 Mashir Mahir Hussain, Superinten dent Hafiz Textile Mills. The witness brought the muster roll with him and he said that Bashir respondent was absent from duty on and from the 15th September‑ 1959 onwards and that the respondent had not sent any application for leave. Absconder Muhammad Khan who was also an employee of the Mill had also absented himself on and from 15th September 1959 onwards without any leave. Bashir respondent was asked the question in his statement Exh. 30 Q. It is in evidence that you were employed in Hafiz Textile Mills from where you suddenly absented yourself from 15th onwards and disappeared from Karachi also. What have you to say ? Ans :‑Yes. It is correct." Later on in his statement Bashir respondent said that he and Fazal Karim had left Karachi for Punjab in the morning of 15th September 1959. Bashir, however, failed to explain why he went away so suddenly and without obtaining any leave. Explanation of Fazal Karim on the point is different and on which Bashir does not support Fazal Karim as will be shown hereafter.

8. With regard to the absconding of respondent Fazal Karim, the evidence to be considered is of P. W. 11 Raja Dilawar Khan and P. W. 23 Abdulla, A. S. I. P. Dilawar Khan was Inspec tor Incharge of East Pakistan Police (E. P. R.) Transit Camp, Karachi. He says he knew respondent' Fazal Karim who was employed in E. P. R. Fazal Karim had gone on leave and had returned on the 4th September 1959 and was at the Transit Camp. He had to leave for East Pakistan on 16th September 1959 by ss. Aronda. Ticket had to be issued to him on 15th Septem ber 1959 but Fazal Karim respondent was not present at the parade on that day at 4 p.m. and so the ticket could not be delivered to him. The witness searched for the respondent on 16th September 1959, but could not find him. He had disappeared. The witness produced the extract of the muster roll of 15th Sep tember 1959 showing Fazal Karim absent. It is Exh. 13/A. There was no cross‑examination. P. W. 23 A. S. I. P. Abdulla was under S. H. O. Raja Sultan investigating officer and was asked by him to search for Fazal Karim. On 18th September 1959 he went to the office of Machinon Mackenzie at McLeod Road and secured the list showing the passengers which were to go on board ss. Aronda on 16th September 1959. Respondent Fazal Karim and Muhammad Khan absconder's names were shown in the list Exh. 25/A. He examined Raja Dilawar Khan P. I. Transit Camp and obtained Extract 13/A from him where Fazal Karim was shown as deserter. Abdulla's evidence is relevant only to the extent that respondent Fazal Karim was a passenger listed for ss. Aronda leaving on the 16th September 1959. Fazal Karim in his statement Exh. 32 was put the following ques tion on the point "Q.‑It is in evidence that you had to proceed to East Pakistan by ship on 16th September 1959, but you absented yourself and disappeared? A.‑On 15th September 1959, Bashir accused received a letter from his native place that my brother's son was very ill. As there was no time to obtain leave I left without leave on 15th September 1959." The statement is obviously false. Bashir has never spoken of any such letter received by him, nor was any such letter produced. The explanation of both the respondents that they left Karachi suddenly on the 15th September 1959 cannot be accepted, in view of the ocular evidence that both were seen at Karachi on night 15/16th September 59 as has been believed by the learned Additional Sessions Judge also. It is, therefore, established that both the respondents absconded on the morning of 16th September 1959. This piece of evidence, as stated already, the learned Judge has failed to consider against the respondents, although he had it in mind as a piece of evidence brought out by the prosecution against the respondents.

9. Recoveries : (v).‑This brings me to the evidence of recoveries against the respondents. Bashir respondent was arrest ed at Langhrial in Gujrat District, on 4‑10‑59 by P. W. 8 Muhammad Hussain, Head Constable of Gujrat City, who had been asked by the investigating officer P . W. 25 Raja Sultan, S. H. O., Golimar, Karachi, to secure Bashir respondent. The S. H. O. on spy information came to know that respondent Bashir was in his village Langhrial where he went along with P. W. 7 Mashir Sardar Khan and one Piran and raided the house of Allah ditta from which he arrested respondent Bashir. Bashir was wearing watch Article D in Court which was secured and mashir nama Exh. 9/A was prepared. Bashir respondent while in custody look the police to his house in village Sakha, and from his house, underneath a cot, produced attache case Article A, khes Article E, torch Article C and tahmad Article F which was seized and mashirnama Exh. 9/B prepared. P. W. 7 Mashir Sardar Khan stated that he had accompanied the police to village Langhrial about 3 miles away where respondent Basbir was arrested front the house of Allahditta. He was then wearing a watch Article D on his wrist. The police prepared mashirnama Exh. 9/A. Sardar Khan also states that thereafter respondent Bashir had taken police to his own village Sakha and from underneath a cot pro duced attache case Article A, khes Article E, torch Artitle G and tahmad Article F: Police prepared mashirnama Exh. 9/B. Bashir respondent in his statement has said that he was arrested at Langhrial on 2nd November 1959. This is false since Exhs. 9/A and 9/B both bear the date as 4th October 1959. P. W. 8 Muhammad Hussain, Head Constable also speaks about the arrest of the respondent on 4th October. The respondent also admits that police had taken him to his house and recovered the said articles. He claims the watch Article D to be his own and the other articles secured from his house as belonging to his brother. This aspect of the case will be discussed later. The fact remains that it is common ground between the prosecu tion and t e respondent that watch, Article B was recovered from his person and the other articles from his house. 10. (vi).‑Respondent Fazal Karim was arrested at village Sritra in Sargodha District by P. W. 25 S. H. O. Raja Sultan on 4th October 1959. The S. H. O. had left Karachi on 30th Sep tember 1959, for Punjab, had reached the village of F'indi Telian on 1st October 1959, and after two or three days lie received the information about the respondent Fazal Karim being in Sritra. He along with P. W. 9 H. C. Abdul Aziz proceeded to Sritra where he arrested the respondent Fazal Karim in the house of Sardar Bibi, wife of Jumo alias `Boots'. The S. H. O. secured from the person of the respondent a blood‑stained knife Article K and prepared mashirnama Exh. 8/A. P. W. 9 H. C. Abdul Aziz supports the S. H. O. and says that he had gone to village Sritta along with S. H. O. Raja Sultan where respondent Fazal Karim was arrested and knife Article K was recovered from him. P. W. 6 LAI Khan is she Mashir. Lal Khan states that respon dent Fazal Karim was arrested in village Sritra in his presence and knife Article K recovered from his possession. It had blood stains on it and mashirnama Exh. 8/A was prepared and signed by the witness, Fazal Karim respondent in his statement said that he was arrested on 2nd October 1959. This cannot be believed in view of the evidence of S. H. O. Raja Sultan and the date 4th October 1959, appearing on mashirnama Exh. 8/A. Fazal Karim also said that no knife was recovered from him. We cannot accept his statement in view of the positive evidence to the contrary of the prosecution witnesses which we believe to be true. The learned Additional Sessions Judge in para. 26 has made the following observations on the point of recovery "Regarding the recovery of the knife from the possession of Fazal Karim accused, it appears very strange that if this knife was really used for causing stab injuries to Latif, the blood would still be found on it on 4th October 1959 when Fazal Karim accused had sufficient time after 15th September 1959 to wash it away. It appears inconceivable that he would carry the blood‑stained knife all these days with him." We do not agree with these remarks of the learned Additional Sessions Judge for the reasons that the stains of the blood were found at the point where the blade joins the handle and this is a place where they are likely to escape being completely washed out. The medical evidence shows that Latif had died as a result of knife injuries. The Chemical report Exh. 27/B shows that human blood was detected on the knife. We believe this piece of evidence against the respondents.

11. Fazal Karim respondent examined D. W. 2 Ghulam Ahmed who deposed that he lives in Sritra village and Fazal Karim was arrested from witness's brother Jumo's house. H. C. Muhammad Hussain had arrested him, and nothing was recovered from the possession of Fazal Karim. In cross- examination the witness said that he did not inquire as to why police had arrested Fazal Karim and was taking him away. He said that he had taken a hukka to Fazal Karim which Fazal Karim wanted. This defence witness and Faiz Ahmed D. W. brother of and witness for, respondent Bashir are related. Faiz Ahmed is married to sister of Fazal Karim respondent D. W. Ghulam Ahmed is married to mother of D. W. Faiz Ahmed. Sardar Begum is father's sister of Fazal Karim and is married to Jumo, brother of D. W. Ghulam Ahmed. Sister of Bashir respon dent is married to Sorayo, brother of Ghulam Ahmed. Defence evidence is thus of close relations and we cannot accept it in face of the reliable evidence of the prosecution witnesses on the point.

12. This brings us to consider whether the attache case Article A and the other articles secured from the house of respon dent Bashir belonged to the deceased. In this connection the evidence of P. W. 1 Tassaduq Hussain is important. Tassaduq Hussain says that the attache case Article A is his property and that the deceased Latif was his neighbour who had borrowed it on 6th September 1959, from him as Latif said he needed it and had to take it to Karachi. Tassaduq Hussain has been using the attache case for the last 3‑4 years. P. W. 3 Abdul Majid and P. W. 19 Muhammad Sarwar and P. W. 20 Muhammad Akbar also speak of the attache case Article A having been seen with respondent Bashir at the time he was seen bringing Latif to his house. The evidence of the three witnesses, however, may be discarded since they saw the Article A in passing way and it would not be safe to rely on their evidence. P. W. 21 Ahmed Din, father of Latif also identified Article A and said that Latif had borrowed it from Tassaduq Hussain.

13. Bashir respondent has said that the attache case and other articles belonged to his brother. He examined D. W. 1 Faiz Ahmed who says that Attache case Article A and khes, tahmad, torch Articles E, F and G were secured from his house by the police and that they belonged to him. The evidence of D. W. 1 Faiz Ahmed cannot be accepted as true in face of evidence of Tasadduq Hussain an independent witness, and P. W. 21 Ahmed Din father of the deceased. Faiz Ahmed said that he had the key of the attache case Article A at his house. When the key secured from the dead body was shown to him he said that it was not the key of the attache case. The key was applied by the Judge and it did work, both for locking and unlocking the attache case. Faiz Ahmed could not have left the key at his house. To show that the attache case belonged to him, he would be on the contrary careful and bring the key with himself, to claim the attache case on the strength of its key. Faiz Ahmed naturally would help his brother, respondent Bashir. Apart from the attache case the other articles, namely torch, tahmad and khes are of common use and it would not be safe to accept the word of P. W. 21 Ahmed Din and P. W. 2 Imdad Hussain that Articles E, F and G belonged to the deceased Latif.

14. As regards watch Article B claimed by respondent Bashir prosecution have produced P. W. 2 Imdad Hussain. Imdad Hussain is also a neighbour of the deceased. He says that he had sold the watch Article B to the deceased a year ago for Rs. 60 and has identified the watch. In his cross‑examination the witness said that the watch belonged to his brother who had died. His brother had purchased the watch in India. He denied that he had stated before the police that he had purchased the watch in India. The contradiction, if any, is immaterial and the learned Judge need not have discarded the evidence of Imdad Hussain who is a disinterested witness, on this ground alone. Imdad Hussain says that the watch had been with his brother and thereafter with him for a number of years and so he has been able to identify it. His failure to give its true name `Josma' also is not important as considered by the learned Judge since a villager may not remember the make. P. W. 21 Ahmed Din also says that the watch Article D was on the person of his son and belonged to him. The learned Judge had no valid reasons in disbelieving "the admitted position that this watch was mixed up with other watches at the time of identi fication" and for remarking that "such an identification of course can have no evidentiary value". We believe the evidence that the wrist watch Article D and attache case Article A were property which were with the deceased before he was murdered.

15. The learned defence counsel quoted certain authorities to the effect that before an order of acquittal could be reversed it must be shown that the judgment of the Sessions Judge was unreasonable or manifestly wrong and that if two conclusions were equally possible an order of acquittal should not be reversed Ahmed v. The Crown (P L D 1951 F C 107); that unless the Court is fully satisfied that the order of the lower Court directing the acquittal of the accused is manifestly perverse, the Appellate Court would not set it aside. Crown v. Sultan Ahmad (P L D 1955 Dal. 1) ; that while in considering an appeal from acquittal the whole case is at large before the High Court, both as to the facts and as to the law, the Appellate Court will be slow to disturb a finding of fact arrived at by a Judge who had opportunities for assessing the value of evidence which the Appellate Court has not had Crown v. Abdul Majid (P L D 1950 Bal. 13) ; that a verdict of acquittal should not be lightly disturbed by the High Court, yet if the acquittal of the accused is manifestly wrong and it is not just a question of taking a view different from the one taken by the trial Judge, the High Court can rightly interfere State v. Sadiq and another (P L D 1960 Lah. 774).

16. These rulings are no longer good law as will be seen presently. More authoritative law in our view is to be found in the following rulings

17. In Sheo Swarup and others v. King‑Emperor (AIR 1934 P C 227), it is stated "It cannot be said that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has "obstinately, blundered," or has "through incompetence, stupidity or perversity" reached such "distorted conclusions as to, produce a positive miscarriage of justice," or has in some other way so conducted or misconducted itself as to produce a glaring mis carriage of justice or has been tricked by the defence so as to produce a similar result. Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusion upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial ; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

18. In Anwar v. The Crown (P L D1955 F C 185) at page 212 the following observations are made "Technically, therefore, the power of the High Court to examine the evidence on which a finding of fact is based is unlimited, though in adopting that course it will naturally pay due regard to the opinion formed by the acquitting Judge about the witnesses who gave evidence before him and the corresponding disadvantages from which the High Court itself suffers in not having them before it. No artificial rules can, therefore, be laid down defining the classes of cases in which the High Court should or should not order a retrial. The matter is essentially in the discretion of the High Court and the only limitation on the exercise of that discretion, apart from the legal restriction contained in subsection (4) of section 439, is that the exercise of such discretion is to be in accordance with the dictates of justice and not arbitrary or fanciful. The trial Court's view of the evidence, the nature of the error committed, the magnitude of apprehended miscarriage or failure of justice, the possibility and extent of prejudice to the accused, the chances of conviction, the expenses of a retrial are all relevant factors to be duly weighed. Cases which lay down that the discretion is not to be exercised unless the judgment of acquittal be perverse or based on a view of evidence which no reasonable man will take merely indicate the classes of cases in which an interference is necessary and do not lay down that in no other case can the High Court interfere. It is a wise rule to follow that where the Legislature itself does not define the limits of or the grounds for the exercise of a discretion, the Courts should not too readily lay down rules to fetter that discretion, and it seems to me that the practice while interfering with orders of acquittal of recording strong findings, as for instance, that the judgment of acquittal is perverse or manifestly wrong is to be deprecated, because if these be the only grounds on which an order of acquittal can be interfered with, revisional Courts will in every case be engaged in determining the preliminary issue whether the error committed is gross or palpable and the view taken perverse or foolish and not the real question whether the order of acquittal is wrong, and if allowed to stand, would occasion a failure of justice."

19. The learned counsel for the respondents argued that the facts proved were not sufficient for the conviction of the respon dents. He relied on Basant Singh v. Emperor (A I R 1927 Lah. 541) as an illustrative case, showing what evidence could be sufficient. In that case the accused was one of the two persons with whom the deceased was last seen alive and the accused had pointed out the spot where the dead body was ultimately found. These facts were not found sufficient for holding the accused to be one of the actual murderers. The defence counsel also quoted Muhammad Ali v. Emperor (A I R 1929 Lah. 61), where the accused were seen in the company of deceased on a previous night. Next morning accused were found to be in possession of clothes and other articles belonging to the deceased.

20. The learned Advocate for the State quoted Billmoria alias Muhammad Hussain v. The State (P L D 1958 S C (Pak.) 313), where the following remarks are found "Practically everything which was robbed from the murdered man was recovered from accused Billmoria's possession on the fourth day following the discovery of the crime. Held, this was a very strong circumstance favouring the belief that he was the person who removed these things, following the murder, and the natural inference was that he was directly concerned in the murder. When it was also found that he had concealed, along with some of the deceased's goods, a weapon of the exact type with which the murder was in all probability committed, the inference became almost irresistible on the basis of a complete chain of circumstances, that he himself committed the crime. The chain of circumstances was so strong that in order to create a reasonable doubt regarding the natural conclusion that the murder was committed by Billmoria, it was necessary for him to establish exculpatory circumstances of a concrete kind, and in the absence of either proof or suggestion by him that he received the goods from another, in a manner unconnected with the murder, it was difficult to conceive of any circum stance which might have the effect of creating such a doubt, except perhaps an allegation supported by reliable proof, that at the time when the murder was committed, Billmoria was in some other place. There was no such allegation, and Billmoria led no evidence in his defence at the trial."

21. In criminal cases findings of one case cannot be trans posed and applied to the facts involved in the case under, consideration. Each case has to depend on the circumstances that arise in it. The law as to the sufficiency of circumstantial evidence for conviction is now well known. Their Lordships of the Federal Court in Siraj v. The Crown (P L D1956 FC 123) expressed themselves on the point in these words "In dealing with the question of sufficiency of circumstantial evidence to sustain a conviction, it has to be borne in mind that if, on the facts proved, no hypothesis consistent with the' innocence of the appellant can be suggested, the conviction must be upheld. If, however, such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case will have to be treated as one of no evidence and the conviction and the sentence will in that case have to be quashed."

22. We have given our best and careful consideration to the facts and circumstances of this case. We have also considered the principles of law enunciated from time to time (referred to above) which must be borne in mind in converting a finding of acquittal into a finding of conviction. We are of the firm view that the chain of evidence and weight of circumstances against the respondents, which we have believed, leads only to one and the only irresistible conclusion that the respondents committed the murder of Latif. The learned Additional Sessions Judge has also not considered or discussed certain important pieces of evidence, as shown above, against the respondents and on our view of the evidence the guilt against the respondents has been established beyond any reasonable doubt. We accordingly convict the respondents Bashir, son of Fateh Ali and Fazal Karim, son of Rahimdad for the murder of Latif an offence under section 302, P. P. C. The case does not call for the extreme penalty for the reason that there is no evidence as to which of the respondents had caused fatal injuries. The circumstances surrounding they actual incident are also shrouded in mystery. Each of the respondents is sentenced to transportation for life. K. B. A. Appeal accepted.