P L D 1966 Supreme Court 664 (PLP)

HAMOODUR RAHMAN, J.-Both these appeals, by special leave, are directed against the judgment and order of a Division Bench of the High Court of West Pakistan, Lahore, acquitting the respondent Manzoor Ahmad of a charge of murder. The first appeal has been filed by the State and the second by the father of the deceased. The charge against the said respondent was that he had on the 1st of March 1959, intentionally caused the death of one Shirin Khan in his room in Siraj Building, Krishan Nagar, Lahore. The said Shirin Khan was a Pathan by caste and a bachelor of about 30 years. He was employed in the Bata Shoe Factory, and used to live with his maternal-uncle Saeed-uz-Zaman Khan (P. W. 17) at Krishan Nagar. The deceased was on friendly terms with Manzoor Ahmad who used frequently to visit him at the house of Saeed-uz-Zaman Khan. There he came in contact with Mst. Saadat Sultana, the daughter of Saeed-u- Zaman, who was a student of the tenth class at the Lady Maclagan High School. He developed intimacy with her and sometime in November/December 1958, made a formal request to her father for her hand. The request was, however, turned down, as it had some months before been decided to marry her to the deceased. Manzoor Ahmad, nevertheless, continued to remain on friendly terms with the deceased and at the same time maintained a liaison with the girl. The mangni of the girl and the deceased was formally celebrated on the 6th of February 1959, but even after this, it appears, the love affair between Manzoor Ahmad and the girl was continued. She used to meet him clandestinely and also used to write to him. Somehow this came to the knowledge of the deceased and the girl's mother. She was taken to task and promised that she would give up her relations with the said respondent. The deceased suspected that this was not done, for, he wrote a desperate letter (Exh. P. 20/2) to her asking her a number of questions to elicit how far the affair had gone and how often had she met Manzoor Ahmad or written to him even after the mangni and her promise to break off the liaison. In this letter he even wanted to know if she had lost her chastity. The purpose of these enquiries, he wrote, was to recover all her letters and photographs, if any that were still left with Manzoor. He had, it seems, already recovered one photograph. The girl presumably replied to this letter, for the deceased acknowledged the reply by another letter (Exh. P. 8/1). The affair with Manzoor, was, however, not broken off and the last meeting between them actually took place some 5/6 days before the murder of Shirin Khan at a bus stop opposite the Civil Secretariat. During this period the deceased also, it appears, maintained his friendly relations with Manzoor presumably to get back the photographs and letters of Saadat Sultana from him. The respondent Manzoor, who belonged to Okara, and was a Rajput, came to Lahore in 1956 and joined the Dayal Singh College. He used to live in a rented room on the first floor of Siraj Building. He failed in the Intermediate Examination of 1958, but continued his studies as a private student. He was at the time of about 23 years. His room was shared from November 1958, by one Zakir Hussain (P. W. 3) who was a first year student at the Law College. They each had a separate key for the lock of the room but about a fortnight before the incident Manzoor lost his key. After this they both used the same key which used to be left, by mutual arrangement, in a window in front of the door of their room if one of them went out when the other was not there. Zakir Hussain left Lahore in the afternoon of the 27th of February 1959, on a short visit to his home at Montgomery leaving the key of the room with the respondent Manzoor Ahmad who was then present. On Sunday, the 1st March 1959, Manzoor Ahmad, it is alleged, went to the house of Saeed-uz-Zaman at about 11 or 11-30 a.m. to meet the deceased. He knocked at the door which was opened by Saeed-uz-Zaman himself. The latter called the deceased who came outside, shook hands with Manzoor and then both of them went away together. Soon thereafter they were seen entering Siraj Building together by Khuda Bakhsh (P. W. 15), a vegetable seller, who had a shop adjacent to the deohri of Siraj Building. Thereafter a little before noon Manzoor alone was seen coming out of the building and going towards the hotel of one Sharafat Khan (P. W. 19) and then again returning to the building. Muhammad Siddiq (P. W. 12), a boy-servant of the hotel, was then noticed entering the deohri of Siraj Building carrying tea but he returned immediately afterwards taking the tea back with him. About half an hour or so later Manzoor was again seen by Khuda Bakhsh (P. W. 15) and Riazat Hussain (P. W. 14) leaving Siraj Building alone. Zakir Hussain (P. W. 3) returned from the visit to his home town at about 9-30 or 10 p.m. on the 1st of March 1959. He found the door of the room locked and the light burning inside. He looked for the key at the usual place where it had been arranged to be kept but it was not there. He waited for nearly an hour for Manzoor to return but as he did not return even by that time an effort was made to see if any key of Muhammad Saleem (P. W. 4), another resident, would fit the lock. When this proved unsuccessful he borrowed an arr from a Shoe Factory situated in the ground floor of Siraj Building and opened the lock with it. At the time Muhammad Saleem (P. W. 4) was with him and on opening the door they both found the dead body of Shirin Khan lying on the floor in a pool of blood. Shirin Khan being a frequent visitor to the room was known to them. They also noticed a bloodstained knife lying near the dead body. Zakir Hussain then called Ali Akram (P. W. 20), another resident of the building, and they all three went to the Police Post at Krishan Nagar to give information to the Police, which was recorded a little before mid-night of the 1st of March 1959. In this report only the circumstances in which the dead body was found were stated and the deceased was identified as a person who used frequently to visit the respondent Manzoor Ahmad in that room. Nothing more was said. It was sent to the Police Station, Anarkali, for formal registration and was actually registered at 12-20 a.m. of the 2nd of March 1959. Investigation was taken up first by the Assistant Sub -Inspector in charge of the Police Post who proceeded to the place of occurrence immediately and had the dead body despatched to the mortuary. He also seized the lock and the produced by Zakir Hussain and the bloodstained knife found near the dead body. Bloodstained earth was also scraped from underneath the dead body. At this stage the officer in charge of Old Anarkali Police Station arrived and took over the investigation at about 1-30 am. A bloodstained pant and bushshirt, a dhoti, four photographs, four letters and a woollen jacket were found lying on a charpoy said to be of the respondent Manzoor. From this woollen jacket a purse was recovered containing Rs. 61 and two photos of the deceased. From the same pocket two envelopes were also recovered containing the letters (Exh. P. 8/1 and Ex h. P. 20/2), which were subsequently identified as having been written by the deceased. This indicated that the jacket belonged to the deceased. It had some cut marks and was also bloodstained. Apart from these the bloodstained bed-sheet on the charpoy, a trunk with its contents, some shoes, three large size framed photographs of Manzoor and a heap of torn books were also seized, as they were said to be the property of Manzoor. Inside the trunk an identity card (Exh. P. 28) and a photograph of Manzoor were also found. The post-mortem examination of the deceased revealed altogether 15 injuries, of which six were abrasions, one an ecchymosis and the rest were incised wounds. The abrasions and the ecchymosis were of a simple nature and in the opinion of the doctor could have been caused by friction against some hard substance. Death was, in his opinion, due to the incised wounds on the neck which had cut the larynx, the traches and oesophagus. The larynx and traches had three cuts, the oesophagus had four cuts and the injury had penetrated deep up to the vertebra cutting it at various places but stopped just short of the spinal canal. There was also an injury on the chest cavity but the pleura was intact and the lung uninjured. Apart from these, there were incised injuries on the web between the right thumb and index finger and on the tips of the right index finger and middle and ring fingers in a line. There was another incised wound on the axilla of the left upper arm situated at the back of the upper part of the left upper arm. All the wounds were ante-mortem. The body was of a fairly built person and rigor mortis was present all over. Post-mortem staining was also present on the back. The dead body was dressed in a shirt, a banyan, a necktie, underwear, pant, socks and shoes. The necktie bore a cut mark at the knot, and there were also three cuts in front near the collar on the left side of the shirt. The stomach was found empty but the small intestines contained chyme and large intestines contained faeces. The post-mortem on 2-3-59 at 2-30 p.m. was, according to the doctor, performed within 24 to 36 hours of death. Search was thereafter made for the respondent Manzoor Ahmad but he could not be found. Proceedings were then taken against him under sections 87 and 88 of the Criminal Procedure Code but he remained absconding for over two years. Eventually he surrendered himself before a Magistrate at Lahore on the 25th of March 1961, and himself applied for an identification parade. At the time of surrender he had a beard and moustaches, but as at the time of the incident the respondent was said to be clean-shaven the investigating officer applied to the Magistrate that he should either be shaved or that the parade should be held twice, once with the beard and moustaches and a second time after shaving. The Magistrate ordered that parade should be held on two days, namely, the 18th and 19th of April 1961, first in his present condition and then after shaving him. The parade was held but no evidence as to the result thereof has been brought on the record by the trial Court, as it was considered unnecessary, for, all the witnesses according to their own statements knew both the deceased and Manzoor Ahmad well from before. The origin of the blood on the knife was also identified by the Serologist to be human. Manzoor Ahmad was committed to the Sessions Court and was tried by the Additional Sessions Judge of Lahore. The prosecution led evidence to prove the circumstances mentioned above and also endeavoured to establish that the murder was a pre-meditated one upon the basis of an alleged threat held out by him before the girl to remove "the wall" which stood between them and the fact that on the 25th February 1959, he had actually gone to Batapur in the Rickshaw of Fida Hussain (P. W. 11) to look for the deceased. It was ascertained from this Rickshaw driver that on the way back from Batapur Manzoor had told him that as the deceased had been betrothed to his beloved he wanted to settle matters with the deceased who, it appears, had some kind of temporary residential accommodation also at Batapur. The intimacy between Saadat Sultana (P. W. 18) and the said respondent had not only been proved by Saadat Sultana herself but also admitted by Manzoor. Her letters and photo graphs found lying on the charpoy of the respondent also left no room for doubt that such intimacy did exist between them. This had come to the knowledge of the deceased. The letters (Exhs. P. 8/1 and P. 20/2) found in the pocket of the jacket, which have been proved to be in the handwriting of the deceased, clearly lead to this inference and that the deceased was anxious to get back the incriminating letters and photographs, which were still in the possession of Manzoor. The respondent Manzoor had, in his own statement, also admitted that he resided in the room in which the dead body was found and that he had even after knowing that Saadat Sultana had been betrothed to Shirin Khan continued the affair with her and their relations remained equally cordial. But he has denied every thing else. According to him it was the girl who wanted to marry him. He himself did not want to marry her as he knew that she had had illicit relations with others. He maintained that he had been implicated purely on suspicion even though he was not in Lahore at the time. He said that he had vacated his room and left Lahore sometime towards the middle of February, as his parents had called biro back on getting information that he had failed and not obtained re-admission to Dayal Singh College. When he reached Montgomery he was severely reprimanded and also given a beating. While he was there a letter written by the girl fell into the hands of his parents and this made matters worse. He, therefore, left his house and went away to Shabqadar where he stayed with one Alam Khan and worked for him. During this time he had no contact even with his parents. In March 1961, when he visited his parents at Okara he learnt that he was made an accused in this case. So he came to Lahore and surrendered himself. As regards the letters and photographs he said that he had returned them to the girl and they were not recovered from the room. He also denied that the trunk or any of the other articles seized from the room belonged to him, though he conceded that he might have left one of his framed photographs with Zakir Hussain, his room-mate when he vacated the room. He also admitted that the identity card (Exh. P. 28) was his but said that it related to the year 1956. The only explanation that he could offer for its presence in the room was that he might have left it somewhere in the room when vacating Siraj Building. He also denied that the deceased resided at the house of Saeed uz-Zaman or that he ever visited him there. He stated that he came to know Shirin Khan through common friends, namely, Yusuf, Abdul Rashid, Rana and others, and that the deceased often used to visit his room with friends to play cards. He further maintained that he left his room in the middle of February 1959, but returned to Lahore on the 24th or the 25th of February 1959, in order to borrow some money from some relations of his with whom he stayed on that occasion in Sant Nagar. During this trip he also visited Siraj Building on the 24th February to meet his friends. There a domestic servant of Saeed-uz-Zaman delivered a letter to him from Saadat Sultana in which she had asked him to meet her at the bus stop outside the Civil Secretariat. He kept this appointment during which the girl tried to persuade him to stay on in Lahore but he told her that he had to go away, as his circumstances were very bad. He then left for Swat on the same day and after remaining in the city of Madian for about a month he went to Shabqadar where be entered the service of Alam Khan as a karinda. He further denied that he had ever hired the Rickshaw of Fida Hussain or gone to Batapur on the 25th February 1959. He admitted, however, that the witnesses who resided in Siraj Building knew him from before and that he had no enmity with any of them but he thought that they were giving false evidence due to suspicion on account of his absence. No evidence, was, however, led in support of this defence. There was, of course, no direct evidence of the murder in this case, for, no evidence was available to show as to what had happened inside the room. What, however, the prosecution claimed to have established were the following circumstances:- (1) that Manzoor Ahmad was carrying on a love affair with Saadat Sultana and wanted at one time to marry her, (2) that as his proposal for the hand of the girl was turned down and she was betrothed to the deceased, there was serious jealousy between him and the deceased, particularly, since the mangni of Mst. Saadat Sultana, (3) that the girl was even thereafter writing to him and meeting him and that he was not discouraging her from doing so, (4) that some letters and photographs written by the girl were still in his possession and the deceased was keen to get them back, (5) that on the day in question the respondent was in -exclusive occupation of the room in Siraj Building, as Zakir Hussain had left for Montgomery on the 27th of February 1959, and did not return till after the murder, (6) that the respondent on the 1st of March, 1959, called the deceased from the house of his maternal-uncle and was seen entering Siraj Building soon after 11 or 11-30 a.m. along with the deceased, (7) that the respondent was about an hour or so later seen to leave the building alone, (8) that Shirin Khan was last seen alive in the company of the respondent when they both entered Siraj Building, (9) that the dead body of deceased was found in the room in occupation of Manzoor at about 10 p.m. of the same day and (10) that the respondent absconded from Lahore leaving his belongings in the room occupied by him and remained absconding for over two years for which he has offered no satisfactory explanation. The assessors at the trial unanimously found the respondent not guilty, but the learned Additional Sessions Judge trying him did not agree with this opinion, for, according to him, even if the defence suggestion that the girl herself had got the deceased murdered was accepted, the natural inference was that she got him murdered through her paramour, the said respondent. The learned Additional Sessions Judge, therefore, thought that the above circumstances had been amply proved and could not be explained away on any hypothesis consistent with the innocence of the respondent. It was also accepted that there was serious jealousy between this respondent and the deceased. He was, therefore, convicted for the murder of Shirin Khan and sentenced to death. On appeal, however, the High Court took the view that even after taking into account the admissions made by the respondent the prosecution had failed to establish that he was equally keen to get married to the girl or to continue his relations with her even after she had been betrothed to Shirin Khan. There was no motive, therefore, for the murder. In any event, the High Court thought that the evidence was not sufficient to lead to the inference that the respondent was "determined to remove all obstacles from his way and continue to have intimacy with Mst. Saadat Sultana even if he could not get married to her". Apart from this, the High Court did not consider it safe to rely upon the evidence of Saeed-uz-Zaman Khan (P. W. 17), Riazat Hussain (P. W. 14), Khuda Bakhsh (P. W. 15) and Siddiq (P. W. 12). The evidence of the threats said to have been held out by the respondent was also disbelieved and the prosecution evidence was characterised as being "improbable, unbelievable and full of contradictions." In coming to this conclusion the High Court was, in no small measure, influenced by the fact that the prosecution had failed to explain why the light was found burning in the room and why no one had heard any cries or shrieks coming from the room, although the injuries on the deceased clearly showed that he was not suddenly stabbed to death, for, there were indisputable signs of a struggle. The deceased must have been, in the opinion of the High Court, in a position to raise a hue and cry when he was being attacked and, therefore, the fact that none of the witnesses produced had heard any cries went to cast a serious doubt upon their presence in the vicinity. The prosecution had, in these circumstances, according to the High Court, only succeeded in raising a "strong suspicion" but since suspicion was not sufficient for conviction the respondent's appeal was allowed and he was acquitted of the charge. Leave was granted in this case to examine whether the appraisal of the evidence by the High Court was made upon correct principles. This case depends wholly on circumstantial evidence The trial Court, in the circumstances established by the prosecution, found that they led, without any doubt, to the inference that the deceased Shirin Khan had died as a result of the injuries caused to him by the respondent Manzoor Ahmad. The High Court, on the other hand, doubted that the prosecution had succeeded in establishing any one of the circumstances upon which it relied. This necessitates a re-appraisal of the evidence. The learned counsel appearing for the State and the father of the deceased have, of course, contended that the reasons advanced by the High Court for rejecting the prosecution evidence were insubstantial and unsound. There can, it is contended, be no manner of doubt that the deceased was found murdered in the room of Siraj Building which had been originally rented by the respondent Manzoor Ahmad and was latter shared by him with Zakir Hussain. The dead body was lying in a pool of blood and a bloodstained knife was also found to be lying there on the floor. The origin of the blood on this knife has been found by the Serologist to be human. That a large number of articles of clothing, photographs, letters and even an identity card, which admittedly belonged to this respondent, were also recovered from the said room cannot be doubted. That there was a love affair between Manzoor Ahmad and Saadat Sultana is also established. Lastly it is also an admitted fact that Manzoor on his own showing was absconding for about two years during which time he never came to Lahore nor even visited his parents at Okara. Indeed, even the learned counsel appearing for him has felt some difficulty in attacking this evidence and, therefore, contended that even assuming these facts to be proved the offence bad not been brought home to his client by the prosecution. So far as the possession of the room is concerned, the prosecu tion maintains that it has succeeded in establishing that it was in the exclusive possession of Manzoor Ahmad on the day in question. To establish this it has examined the proprietor of Siraj Building (P. W. 6) and obtained from him that this respondent, who had been occupying the room for the last 2 or 2 years, had paid the rent for January 1959, on some date before the 16th of February and that at no time prior to the occurrence had Manzoor Ahmad ever told him that he would leave the room. He also knew that Zakir Hussain was sharing the room. Zakir Hussain (P. W. 3) himself stated that he started sharing the room with Manzoor Ahmad from November 1958. They each had a key to the lock of the room but the key in the possession of Manzoor Ahmad was lost about a fortnight prior to the 27th of February 1959, and after that they shared the same key. He left at about mid-day of the 27th of February 1959, to pay a visit to Montgomery, his home town, and at that time he made over the key to Manzoor Ahmad. He returned to Lahore on the Ist of March 1959, at about 9-30 p.m. and found the door of the room locked with the electric light burning inside. He waited for about an hour expecting Manzoor to return by that time but since he did not, the lock was ultimately forced open and the dead body seen lying there. Muhammad Saleem (P. W. 4), another resident of Siraj Building, has corroborated Zakir Hussain in all material parti culars and added that before forcing the lock open Zakir Hussain came to his room to borrow a key which might fit the lock. He had no such key, so the lock was opened with the help of an air borrowed from the Shoe Factory on the ground floor. When the lock was opened he was also present and saw the dead body of Shirin Khan, who was known to him being a frequent visitor to the room of Manzoor Ahmad, lying on the floor. The High Court has made no comment at all about this evidence. Evidently it did not doubt the evidence on this particular point and as we have already stated even the learned counsel appearing for Manzoor is now prepared to accept that the room was in his exclusive possession on the relevant date. This fact is thus clearly established beyond doubt. The next question is as to whether the deceased was last seen alive in the company of Manzoor Ahmad? The prosecution has examined the father of Mst. Saadat Sultana, Saeed-uz-Zaman (P. W. 17), to show that at about 11 or 11-30 a.m. the deceased was called by Manzoor from his house and that they both shook hands and went away together. Thereafter, Khuda Bakhsh (P. W. 15) saw them both entering Siraj Building coming from the side of Suri Building, They were both known to him, as Shirin Khan was a frequent visitor at the place. This was between 11 a.m. and 12 noon on Sunday, the Ist of March 1959. He ran a vegetable shop in the ground floor of Siraj Building since the last 9 years. He was sitting on the thara of his shop when he saw the deceased and Manzoor passing in front and entering the deohri of Siraj Building. There is no suggestion made to him that he was, in any way, interested in the deceased or inimical towards Manzoor Ahmad. The only suggestion put to him was that he was not present in his shop at that time and had not seen the accused going with the deceased. Riazat Hussain (P. W. 14), who is a clerk in the office of the Deputy Controller, was then residing at No. 15, Ball Ram Street, Krishan Nagar, Lahore. Only four houses intervene between his house and Siraj Building. He was a friend of the owner of the Shoe Factory situated on the ground floor of Siraj Building. He often used to come and sit at the shop of his friend. He had met the respondent Manzoor Ahmad there before this occurrence, knew his name and also that he was residing in the gallery of the first floor of Siraj Building. He also knew the deceased Shirin Khan, as the latter was a frequent visitor to the Shoe Factory of his friend. He also knew that the deceased was residing with his maternal-uncle Saeed-uz-Zaman Khan whom also he came to know through the deceased. He too claimed to have seen both the deceased and Manzoor Ahmad coming together from the eastern side and entering Siraj Building through the deohri between 11-30 and 12 noon. Five or six minutes later, according to him, Manzoor Ahmad again came out alone and went towards Sharafat Khan's Hotel but soon returned from there and went inside the building. After this a servant of Sharafat Khan was seen by him carrying tea and entering the building. The boy, however, returned almost immediately taking the tea back with him. About half an hour or 11 of an hour after the return of the boy he saw Manzoor Ahmad alone going out of Siraj Building and thereafer the latter was no; seen in the vicinity again. The next morning he learnt that Shirin Khan had been found murdered. The boy servant of the hotel-keeper Muhammad Siadiq (P. W. 12) stated in his examination-in-chief that on the day before he learnt of the murder in the Siraj Building Manzoor Ahmad, whose name he did not know then, came to the hotel of his master at about 12 noon and ordered tea. The tea was directed to be taken to his room by the proprietor of the hotel but when he entered Siraj, Building with the tea he saw Manzoor Ahmad coming down the stairs. The latter directed him to take the tea back to his hotel, as he would later go there and have his tea. So he returned to the hotel. In cross-examination, however, he denied that it was this respondent whom he met coming down-stairs and further tried to create confusion by saying that when he went inside the deohri of Siraj Building with the tea he actually saw three persons coming down-stairs. He was declared hostile and cross-examined by the Public Prosecutor. At first he tried to say that what he had stated in the Committing Court was what the Police had tutored him to say, but later admitted that he had really seen the respondent coming down stairs and that the latter had asked him to take the tea back to his hotel. The High Court has doubted the veracity of each of these witnesses-Saeed-uz-Zaman Khar, because it is said that he would on coming to know of the intimacy between his daughter and Manzoor Ahmad naturally become hostile to him and would be entertaining a grudge against him. Khuda Bakhsh; because he neither remembered the kind of clothes that Manzoor Ahmad was wearing at the time when he was seen entering and corning out of Siraj Building, nor could he say if he had seen any one else entering that building on that day. Again, his presence at the spot was not accepted, because, although his shop was "practically below the room" he had not heard any raula even though the room in question had two windows on the side of the road. He was, therefore, considered to be not only of weak memory but also one whose presence at the relevant time was not certain. So far as Riazat Hussain (P. W. 14) is concerned, it was felt that he had no particular business to be present near Siraj Building at the time. In any event, since he was "moving about on the road for nearly two hours for recreation and had spent only a few minutes in the Shoe Factory in glancing through a newspaper", his presence at the place was doubtful. Furthermore, it was felt that his testimony could not be relied upon, because, he had not given out this information to the police or to any one else until he was called by the Police a fortnight or a week after the murder. The deposition of Saeed-uz-Zaman was also not relied upon by the trial Court due to the fact that he must have been annoyed with Manzoor Ahmad on coming to know of the affair between him and his daughter. It is no doubt true that he is the father of Saadat Sultana but, at the same time, it must not be overlooked that he is a responsible person holding the post of Deputy Chief Inspector of Boilers under the Government of West Pakistan. He has also given his evidence in a frank manner. I see no sufficient reason, therefore, as to why his evidence at least to the extent admitted by the respondent or corroborated by other independent evidence should not be accepted. As for Khuda Bakhsh I can find nothing for which his evidence can be rejected. It is not disputed by the defence that he has a vegetable shop on the ground flour of Siraj Building. It was but natural, therefore, for him to be present on the thara of his shop at the relevant time. He knew both the deceased and the respondent. There is no suggestion that he has any particular reason to falsely implicate him. He is also a completely disinterested and independent witness. The mere fact, therefore, that he could not remember as to how the respondent and the deceased were clad at the relevant time cannot be a sufficient reason for disbelieving him. He had given prompt information of what he had seen to the Police on the very day that he came to know of the murder. The High Court's theory that his story was improbable, for, if he had been present there, he must have heard some kind of raula or noise coming from the room above, because that room had two windows opening on the road side, cannot be accepted. Firstly, because, it is not correct that his shop is immediately below the room in which the dead body was found. This room is situated over the deohri whereas the shop of Khuda Bakhsh is below an adjacent room on the right of the respondent's room. Secondly, because, the windows were, according to this witness, kept closed at the time. Thirdly, because, it is more probable that no alarm was raised, for in the view that I am led to take, on a review of all the facts and circumstances, there was a fight between two high- spirited young men over the love of a girl, and in such a fight no cries for help are to be expected. The neck injuries found on the deceased had cut through the vocal organs and, as such, would have also effectively prevented any cry coming from the victim. His evidence otherwise also appears to me to be truthful. The lights in the room were found burning by Zakir Hussain when he reached there later. This may well have been because the windows were shut and the room was dark. I see no reason, therefore, to disbelieve this witness. Even Riazat Hussain, I find, has been disbelieved for reasons which do not appear to be substantial. This witness also was a responsible Government employee. He too had no particular interest to falsely implicate Manzoor Ahmad nor was he, in any way, connected with the deceased. It is true that he was for most of the time present at the spot perambulating outside Siraj Building. But this does not mean that he could not have been there. He lives only four houses away, The owner of the shoe Factory is his friend. It was a Sunday and a holiday. Was it then unlikely that he should have come out to while away a little time at his friends shop on this day? The owner of the Shoe Factory Farzand Ali (P. W. 16) was also tendered for cross -examination but was not cross-examined. If the defence doubted that he was present at the place at that time, they could well have cross-examined Farzand Ali. The fact that they did not do so suggests that they accepted this fact. The High Court is not also correct in taking the view that he was not examined by the police until a fortnight or a week later. It was obtained from him in cross-examination that although he had come to know of the murder in the morning of the 2nd of March he did not go to the police but went as usual to his office. He returned from his office at about 3 p.m. and was called by the police the same evening. A member of the public came to his house along with a constable to call him. The High Court has doubted this, because in the Committing Court he appears to have made a statement to the effect that the police recorded his statement a fortnight or a week after. But the investigating officer Maqsood Jilani (P. W. 22) stated in cross-examination after referring to his zimins for th2nd of March 1959, that he had recorded the statement of Riazat Hussain on that very day, although the exact time at which the statement was recorded was not mentioned there. It is not unnatural for a disinterested person to avoid getting mixed up in such cases. In any event it is quite understandable as to why on the 2nd of March 1959, when he came to know of the murder he did not immediately rush to the police or disclose to other persons about what he had seen, particularly, since he had seen nothing, e.g. on the clothes or person of Manzoor, or in his behaviour, to lead him to think that the man had committed a murder. The discovery of the crime was made many hours later. He had in the meantime to go to his office and it was but natural that he should have gone to his work first. His name must have thereafter transpired in the course of the investigation, for, otherwise the police would not have sent for him in the evening for recording his statement. This also indicates that he must have been there. In the circumstances, I am unable to agree with the High Court that his evidence is unreliable or open to any serious doubt. Muhammad Siddiq (P. W. 12), the tea stall boy, has been disbelieved by the High Court under the impression that the trial Court too had disbelieved him. But this again is not correct. The trial Court accepted his evidence to the extent that he had carried tea at about mid-day of Sunday, the 1st of March 1959, to the room of the respondent Manzoor Ahmad and had seen him coming out of the said room after locking it, as this portion was considered to have been corroborated by Riazat Hussain. His employer Sharafat Khan was also tendered but he too was not cross-examined. Having regard, however, to the prevarications in which this witness has indulged it cannot be said that he could be safely relied upon. But even excluding his evidence and that of Saeed-uz-Zaman as regards the calling of the deceased from his' house, I am of the opinion that Khuda Bakhsh and Riazat Hussain have sufficiently proved that the deceased was last seen alive in the company of the respondent Manzoor Ahmad entering Siraj Building and that after that Manzoor Ahmad alone left the building at about noon, So far as the motive is concerned, it is true that the prosecution attempted to establish a case of premediated murder and led evidence to show that the deceased had actually been decoyed to the room for the purpose of murdering him. Some evidence was also led through the mouth of Saadat Sultana to show that he had earlier also held out threats against the deceased. The trial Court accepted this evidence and inferred therefrom that there was "serious jealousy" between the deceased and the said respondent, particularly, since the mangni of Saadat Sultana with the deceased, but they did not break up their relationship with each other for different motives. The deceased wanted to get back the letters and the photographs of the girl whereas the respondent wanted a suitable opportunity to kill the deceased. The High Court, however, felt that Saadat Sultana's evidence on this point does not deserve to be relied upon and that in any event it was not enough to establish satisfactorily that the respondent was really in love with her. The motive to kill Shirin Khan was, therefore, doubted. Both the trial Court and the High Court were of the view that Saeed-uz-Zaman was an interested witness and his evidence should not be accepted without caution. The High Court was also inclined to take the view that it was improbable that the respondent would openly go to his house to call the deceased. Learned counsel appearing for the respondent has contended that this motive story is totally unsupportable, for, even on the prosecution's own showing the deceased and the respondent met cordially and shook hands when the respondent allegedly went to call the deceased from the house of Saeed-uz-Zaman. Nothing untoward was observed by any one of the witnesses who saw them entering the building. Indeed, if the prosecution story is to be believed, the respondent actually ordered tea presumably to entertain his guest, although it has not been elicited from Siddiq the tea stall boy, or from any other witness, as to how many cups of tea were ordered by the respondent. It is highly improbable that the respondent would have told the Rickshaw driver (P. W. 11), even if the latter was known to him, that because his beloved was betrothed to Shirin Khan he wanted to settle the matter with him. It is also understandable that Saadat Sultana would be anxious to support the prosecution to protect her own character and, as such, her evidence of the alleged threat should not be accepted without corroboration. It is not without significance that in one of her own letters she actually referred to the deceased as a "wall" between her and the respondent. This may have given her the idea of saying that the respondent offered to remove the "wall" which was standing between them. Her letters (Exh. P. 6 series) seem rather to suggest that it was she who was more anxious to continue the affair than the respondent. No letter written by the respondent to her has been exhibited in this case. The suggestion made by the learned counsel for the defence, therefore, is that the respondent may well have been content with this state of affairs. This would suggest that he was not so infatuated with her as to have her exclusively at all costs. These considerations clearly weigh against finding a design to kill Shirin Khan. I am unable, therefore, to accept that the motive, as alleged by the prosecution, has been established. The letter (Exh. P. 20/2), on the other hand, shows that the deceased having come to know of the affair between his fianc e and the respondent was anxious to get back the incriminating photographs and letters from him possibly to avoid giving the respondent any chance of black-mailing him or his future wife. In this view of the matter I have come to the conclusion that the prosecution had succeeded in proving the circumstances other than these relating to motive enumerated earlier in this judgment and that upon these circumstances the inference was legitimate that the deceased met his death at the hands of the respondent, for, they could not be explained away upon any other hypothesis consistent with the total innocence of the respondent. This evidence clearly cast a heavy onus upon him which he could hardly expect to discharge merely by hinting at F bare possibilities or suggesting some remote hypothesis. Thus the onus lay heavily upon him to explain what happened in the room where they were last together and why he remained absconding for over two years. Learned counsel appearing for the respondent has urged the necessity of exercising minute care before drawing any inference adverse to his client. It is no doubt true that in a case resting wholly on circumstantial evidence the Court must, as observed by Wills in his Treatise on Circumstantial Evidence, remember that the "processes of inference and deduction are essentially involved-frequently of a delicate and perplexing character-liable to numerous causes of fallacy." Mere suspicion will not be sufficient to justify conviction. Before the guilt of the accused can be inferred merely from inculpatory circumstances those circumstances must be found to be incompatible with the innocence of the accused and "incapable of explanation upon any other reasonable hypothesis than that of his guilt." It is also equally well settled that the circumstances sought to be relied upon must have been established beyond all doubt. But this only means a reasonable doubt, i.e. a doubt such as would assail a reasonable mind and not any and every kind of doubt and much less a doubt conjured up by pre-conceived notions. But once the circumstances have been found to be so established they may well furnish a better basis for decision than any other kind of evidence. As Hewart, I. C. J. observed in the case of Percival Leonard Taylor, James Weaver 8c George Thomas Donovan ((1,828) 21 Cr. A 20) "it is no derogation of evidence to say that it is circumstantial." Learned counsel appearing for the respondent has further suggested that in evaluating these circumstances the Court must strain as much as possible in favour of the accused. Straining of the evidence either in favour of the prosecution or in favour of the accused is a practice that I would deprecate but I would undoubtedly, in accordance with the established principles of administration of criminal justice in our Courts, be prepared to~ resolve all genuine and reasonable doubts, if any, arising in favour of the accused person. It is always dangerous to indulge in the straining of evidence, for; once the process of straining begins there is no knowing where it will end. Keeping these principles in view I have examined the evidence relating to the circumstances, claimed to have been established by the prosecution, with care and caution and have come to the conclusion that except for these appertaining to the question of motive the rest of them have been established beyond any reasonable doubt and that the inference that legitimately flows from the concurrence of the established circumstances is, as I have stated earlier, that the deceased must have died as a result of something which happened between him and the respondent inside that room. Even in a case of this kind where there is no direct evidence to show as to in what precise manner the victim came to be killed the Court has yet to discharge its onerous duty of deter mining whether the death was caused by the felonious act of some other person and, if so, what offence, if any, has been committed by such a person. It is not sufficient in such a case to say that since there is no direct evidence to connect any one with the felonious act the guilt cannot be fixed. It is precisely H in such cases that I conceive it to be duty of the Court to examine the probabilities in the light of the indirect evidence of the injuries on the deceased, the nature and condition of the place where the incident took place the articles sound there, the motive for the crime and the other surrounding circumstances proved. This is what I now propose to do. The question that has thus to be decided in this case is as to what exactly happened in that room? There is no evidence as to this, apart from the intrinsic evidence of the injuries found on the person of the deceased, the state of the room and the articles recovered from there and, of course, the circumstance that the deceased and the respondent were the only two persons in that room at that time. As already indicated, there were three different kinds of injuries on the person of the deceased; incised wounds, abrasions and ecchymosis. The doctor suggested that the abrasions and the ecchymosis could have been caused by friction against a hard substance. He was, of course, not asked as to whether these injuries could be caused by any other method but it has been suggested; I think with some reason; by the learned counsel appearing for the respondent that the existence of abrasions is by itself sufficient proof of the fact that there bad been a struggle between the two, for, none of the injuries f was post-mortem and, therefore, they must have preceded, as the High Court has rightly observed, the fatal blows. It is, in my view, evident from this that there must have been a struggle before the injuries, which caused the death, were inflicted. The evidence also establishes beyond doubt that death resulted from the knife injuries which were in all probability caused by the bloodstained knife recovered from the room. The other intrinsic evidence found in the room is that the photographs, of which one was of the respondent and the girl together, and some letters were lying on the charpoy of the respon dent. It has been suggested that if the evidence of pre-meditation is not accepted, as the State itself has now resiled from this position, then the struggle most probably ensued over the possession of these articles between the two persons, both equally matched and equally well-built. Again the honour of a girl loved by Manzoor but betrothed to her cousin Shirin Khan, who had suspicions of her having been unchaste with Manzoor, could have equally well been a sufficient spark to cause an explosion between them, in the course of which tempers could well have risen high and a fight ensued at first with fists when one of them whipped out a knife. Which one was this? The defence suggest that the deceased did so, for he had the stronger motive. He was motivated not only by the desire to protect the honour of his cousin and betrothed but also to eliminate the possibility of future blackmail whilst on the other hand the respondent had no such strong motive. Having already won the favours of the girl who was still carrying on the affair with him he may well have been content to allow this state of affairs to continue. He had, in any event, nothing to lose. This appears to me to be plausible theory but the situation changed after the knife was drawn. It became thereafter a life and death struggle and the respondent, who was a younger person, must have in the course of this struggle somehow thrown the deceased to the ground, snatched away the knife from his hand and then inflicted the fatal injuries. This finds support also from the fact that the body was found lying on the floor, face upwards. In such circumstances, it is further suggested, the respondent was not only not guilty of murder but was even entitled to raise the plea of self-defence as the killing would, in such event, be justified. The plea of self-defence has, of course, not been raised by the respondent himself at any earlier stage either in the trial Court or in the High Court. Indeed, in his own examination he set up only the plea of alibi without calling any evidence in support of it. Furthermore, by remaining absconding for over two years he has also deprived the Court of any opportunity of finding out whether he had received any injuries at all which could have entitled him to raise this plea. He could only take another person's life in self-defence if he could show that he was the victim of such an assault as would have reasonably given him cause to apprehend that death or grievous hurt would otherwise be the consequence. On the other hand, the prosecution has also left a serious lacuna in the evidence by not proving the ownership of the knife, although Zakir Hussain could well have been asked about this. There is no evidence either as to whether the knife was a new knife or an old knife. The learned counsel appearing on behalf of the respondent has in support of his theory also relied upon some of the incised injuries on the deceased and has pointed out that the incised wounds on the web between the right thumb and the index finger and on the tips of the right index finger and middle and ring fingers in a line could have been caused in an attempt to open the knife during the course of the fisticuffs. The injuries on the neck and the chest of the deceased, who was fully clothed wearing a shirt and a necktie, could, however, only have been inflicted if the deceased was lying down and the assailant was on top of him. Learned counsel for the respondent has further suggested that if his theory is found acceptable or even appears to be as equally probable as the prosecution version, then the one which is favourable to the accused must be accepted. This is, no doubt, correct in principle, for, as I have already stated, the benefit of all doubts must be given to the accused person. One cannot also ignore the fact that if the respondent wanted to kill the deceased and was armed with a knife, then he would not have waited to use it after the fight with fists. The only other theory upon which the knife could be placed in the hand of the respondent and held to have been used after a fight with fists is that he used it in the last resort when he found that he was being overpowered. This, however, is negatived by the absence of any evidence of any injury being caused to him of such a nature as would have given him reasonable ground to apprehend that death or at least grievous hurt would result. The other theory is the one put forward on his behalf. But even accepting this theory as the one more favourable to the accused I cannot but come to the conclusion that the plea of self-defence could not, in any event, be available to the; respondent. Not only because he did not set up such a plea and there is no evidence of any injury on his person to support it but also because even upon this theory it is clear that the injuries which resulted in the death of the deceased were inflicted upon him at a time when he had already been over-powered, thrown on the floor and disarmed. In this situation the right of self-defence could, in no circumstances, be claimed, for there could be thereafter no cause for apprehending either death or grievous hurt. Even in a sudden quarrel and a sudden fight, if unfair advantage is taken by using a knife on a helpless opponent, to cause directly fatal injuries on the neck, this plea cannot be justifiably raised. Thus even accepting the defence theory the result comes to this that although the respondent may have) received strong provocation, the killing was not justified. The offence committed by him is thus one that at least falls under, section 304, Part I of the Pakistan Penal Code. Giving the benefit of all doubts, therefore, to the accused the Court has still to discharge the onerous function of not allowing an offender to escape justice and the meeting out just punishment to him. In the circumstances, taking the most lenient view in favour of the respondent I have come to the conclusion that a grave miscarriage of justice had been committed by the High Court by acquitting the respondent altogether. These appeals are, accordingly, allowed, the acquittal of the respondent Manzoor Ahmad is set aside and he is convicted under section 304, Part I of the Pakistan Penal Code and sentenced to rigorous imprisonment for seven years. He should now. surrender to his bail and serve out his sentence. CORNELIUS, C. J.-I agree. MUHAMMAD YAQUB ALI, J.-I agree. A. H Appeal allowed.