P L D 1960 Supreme Court (Pak (PLP)

"Before entering into the evidence and discussion of this case I feel necessary that I should given a brief topography of the place of occurrence and also other relevant matters for the purpose of understanding the facts of the case. According to the map, Exh. P. K. prepared by Abdul Karim patwari, P. W. 6, and the evidence of the P. Ws. the houses of Fateh Muhammad, P. W. is surrounded by the four walls, out of which the eastern wall is two feet high and the remaining walls are four feet high. The house has a door‑way on the southern side. Muhammad Ramzan deceased was sleeping on a cot one and half karam just opposite the door‑wad inside of the haveli (spot P. K/2) on the night of occurrence and two karams away from his charpoy in the North (Spot P. K/1 the burning lantern was hanging with a wooden pole, Fateh Muhammad, P. W. 12, the father of the deceased, was sleeping (spot P. K./4) three karams away from charpoy of the deceased in the north‑east and farther to him, at the distance of two karams. Imam Bakhsh, P. W. 11, the brother of the deceased was asleep at (spot P. K./3). Similarly Mst. Bakhtawar, P. W. 10, the mother of the deceased was lying on the cot two karams away towards the North from the charpoy of Fateh Muhammad, P. W. (spot P. K./5)". It is noteworthy that in this appreciation of the situation of the witnesses in relation to the cot of the deceased by the Sessions Judge who had heard all the witnesses and had had the facts placed before him by the patwari who drew the map, by the thanedar and by the spot witnesses, no mention is made of any impediment such as a wall lying between any of the witnesses and the cot of the deceased. The impression clearly is that all the cots were placed within the same enclosed courtyard. None of the witnesses and in particular Imam Bakhsh (P. W. 11) was question ed as to any such impediment, and therefore it may be safely concluded upon the evidence that there was no obstruction of any kind between any of the witnesses and the cot of the deceased which could prevent them from seeing immediately with a turn of the head what was happening to Muhammad Ramzan. Mention has been made of two witnesses, Sultan P. W. 1, and Habib P. W.

8. Sultan commenced his evidence by saying that the accused persons were related to him an Sotars, and in cross‑examination, he gave details to show that he and Allah Bakhsh were descended from a common great‑great‑grand father. Allah Bakhsh and Bagoo are cousins inter‑se. He denied relation ship with the deceased or his family. The point, as well as the absence of any indication of enmity towards either of the accused persons, is one of great importance. Habib, as stated already Fateh Muhammad's brother, but his house in the village is about 120 karams 200 yards from the spot. Sultan had returned from Khanpur where he does his daily work, and had gone to Habib's House to give a message for the following morning to Habib's son. Having done this, he walked towards his house, accom panied by Habib who had to see whether water had come into the canal. This apparently took them in the direction; of Fateh Muhammad's house, from where they heard the alarm, and running in that direction they saw the two accused persons coming out of the courtyard of Fateh Muhammad with hatchets in their hands. Seeing the weapons, they stood aside and the accused escaped. Going inside, they saw what had happened. Both men helped to take Muhammad Ramzan to Khanpur. A point of some importance is that the time of the occurrence appearing from this evidence appears not to be any late hour of the night. Sultan had only just returned from his daily work in Khanpur ; it was not a case of the two men meeting at quiet of night, say for the purpose of going out to get their turn of canal water. The incident occurred at a time when the day's work was about to be finally completed and the quiet of night was about to fall over the entire village. It is not the usual hour for such crimes, particularly where the culprits wish to avoid discovery, but here the threat of murder had been openly held out, and there need be no difficulty in holding that the crime was carried out in more or less open fashion. The accused persons were arrested by Inspector Ch. Habib ullah. Allah Bakhsh was arrested on the 30th October and on that very day, he accompanied the Police by bus from Khanpur towards a place called Zahir Pir and when they had gone 5 miles or so Allah Bakhsh stopped the bus and the Police party got down and Allah Bakhsh led them to a bush about 12 feet away from the road and from a place under that bush dug out a kuthari blade. Next, upon enquiry regarding the handle of this kulhari Allah Bakhsh led the Police to his own house and brought out the handle from the hatched roof of his chappar. Three independent wit nesses have spoken to these recoveries in support of the Inspector. It is apparent that the manner and place of recovery of this weapon in the course of enquiries regarding the instrument allegedly used by Allah Bakhsh for the commission of the crime is extremely significant. It serves as a circumstance connecting Allah Bakhsh with the crime then under investigation in which he was alleged to have used just such a weapon, the injuries found being such as could have been caused with such a weapon. Bagoo was arrested on the 31st October 1956 and on the following day i.e. the 1st November 1956, he produced a kulhari which he recovered from an open field belonging to one Fateh Muhammad. Two witnesses have spoken to this recovery corroborating the statement of . Habibullah. It may be mentioned with reference to these hatchets that they were sent to the doctor at Khanpur who made a report to the effect that one of the hatchets bore stains of blood, but not the others, and advised that the blood‑stained hatchet should be sent to the Chemical Examiner. It appears that this was not done. He expressed the opinion that the injuries of the deceased could have been caused with these two hatchets. The accused persons pleaded false implication and produced no evidence. At one stage, it was suggested on their behalf that they would produce Mst. Samo who had been called as a witness for the prosecution, but had been given up because she had turned hostile. Later, it appears that they decided not to produce Mst. Samo or any other witness. We have examined the circumstances of the case and the evidence led in detail and have endeavoured to form our own opinion as to the facts relevant to the acceptance of that evidence, not for the purpose of substituting our own conclusions for those of the learned Judges in the High Court, but because it is possible to demonstrate with certainty that none of the grounds upon A which the learned Judges have purported to acquit the respondents is at all supportable. We say this with great regret, for those who seek justice at the hands of a High Court are entitled to expect that their matters will be examined with care in order to gain a correct appreciation of the facts arid for this purpose, the ordinary requirements of accuracy and correct reading of the evidence at least must be fully satisfied. This Court on principle hesitates to interfere with conclusions of fact recorded by High Courts. That is a principle which will be departed from only in very exceptional cases, namely, in those cases in which some other equally important or more important principle has been violated. Thus, if the decisions of a question of fact has turned upon inad missible evidence or upon a faulty reading of evidence, or where has been a departure from due procedure, in the reception of evidence or otherwise, in the trial of the matter, which is calculated, to interfere: with the due or safe dispensation of justice, interference by this Court will become necessary. It is therefore with reluc tance that we have approached the duty of considering whether the grounds given by the learned Judges in the High Court for rejecting the entire evidence in this case can stand to reason at all, and it is not without concern that we have come to the conclusion that the answer to that question must be in the negative. The determinative portion of the judgment of the High Court commences with the statement that the prosecution case "rests on the evidence of the alleged eye‑witnesses" and that `except Habib (P. W. 8) the rest of the eye‑witnesses are related to the deceased". In the same paragraph the learned Judges go on to describe Sultan P. W. as paternal uncle of the deceased, but say that Habib is an independent witness. There are several mis‑statements in this short paragraph. The case does not rest purely on the direct evidence of eye‑witnesses. Sultan and Habib who have been referred to in this paragraph as if they were among the eye‑witnesses, had never claimed to be eye‑witnesses. Finally, it is Habib who is paternal uncle of the deceased and not Sultan, and as for Sultan, he is not merely an independent witness, but he is in fact related to the accused persons and is not shown to bear the least enmity towards them. Thus, from the commencement of the learned Judges' examination of the case, their approach was vitiated by their failure to read and regard the evidence in the case correctly. In the very next paragraph, they refer to Sultan and Habib as persons who reached the spot on hearing the alarm, and after recounting briefly the circumstances which brought these two witnesses to the vicinity of Fateh Muhammad's house, they declare that there is a "serious discrepancy between the evidence of Sultan and Habib P. Ws. and the statement of Mst. Bakhtawar". Next, what Mst. Bakhtawar said is produced in the judgment. She had only said that she and the other inmates of the house raised an alarm which attracted Sultan and Habib who cried out that they were coming and hearing this the accused persons ran away. After their flight, Sultan and Habib came into the haveli. No conflict of the slightest importance appears between this statement by Mst. Bakhtawar and the evidence of Sultan and Habib on the same matter. Mst. Bakhtawar's statement cannot be understooc to mean that Sultan and Habib did not have an opportunity to see the culprits escaping from the haveli Therefore, the conclusion of Mst. Bakhtawar, we do not consider it safe to rely on the evidence of Sultan and Habib P. Ws." cannot be supported at all. The third point taken in the judgment of the High Court is as to the capacity of Imam Bakhsh P. W. to see the crime from where he was sleeping. The learned Judges referring to the site plan :ay that inside the outer courtyard of Fateh Muhammad's house there is another smaller courtyard enclosed by walls and from the statement in the F. I. R. that Imam Bakhsh and his wife and sister were sleeping "in front tof the verandah" the learned Judges concluded that Imam Bakhsh was not sleeping in the outer courtyard and further that there was a distance between him and the deceased's cot and "a wall intervened (between) the place where he slept and the place where the deceased was sleeping". We have already reproduced above a detailed description of the "topogra phy" of the scene of the crime extracted from the judgment of the learned trial Judge, and have expressed the opinion that it furnishes not the slightest ground for thinking that there was any obstruction between Imam Bakhsh's cot and that of the deceased. As we have pointed out, no question as to the existence of any such obstruction was put to any of the eye‑witnesses, and the point, if taken in appeal, could not have been put upon the basis of any agreed or proved facts. The learned Judges then go on to say that while Mst. Bakh tawar stated that she was awake because she was feeding her child at her breast and it was she who raised the alarm, it was said by Imam Bakhsh and Fateh Muhammad that they got up on hearing a thud. As we have seen, the evidence of these witnesses is that none of them was really asleep at the time, but they were probably dozing off, when the culprits entered the courtyard quietly and commenced to strike Muhammad Ramzan with their hatchets. The differqnce pointed out by the learned Judges is not of the slightest importance. The next point made by the learned Judges is based upon the statement in the F. I. R. that Muhammad Ramzan had covered himself with a quilt before going to sleep. This led the. learned Judges to the conclusion that the other witnesses must also have been sleeping covered up with quilts and on the basis that there were four injuries on the person of Muhammad Ramzan which two men could have inflicted in a few seconds they posed the final question to themselves in the follow ing terms :‑ "could the inmates of the house who were asleep and had covered themselves, identify the culprits ?" Observing that the story about the lantern burning in the courtyard had not convinced them, they concluded that the possibility of mistake could not be safely eliminated. The entire argument is deplorably unsound. The only cut mark on the quilt of Muhammo Ramzan's body was found at one edge, and the conclusion must be, if the injuries were caused with great speed, that he was not in fact fully covered up and the conclusion of the learned Judges that the other witnesses must also have been covered up is therefore without any foundation. Their refusal to accept the evidence of a burning lantern is not founded on any reason, and having regard to all the facts and circumstances and the consistent evidence on the point, we are clear that the inference of doubt regarding the presence of the lantern cannot be supported at all. Finding that the reasons given by the learned Judges for the view which they have taken are untenable, that the value of the prosecution evidence remains unaffected by those reasons, and that the inference of guilt is the only reasonable inference that can he drawn upon a fair consideration of all the facts and circumstance; of the case, as established by that evidence, we consider that tie interests of justice require that the High Court's order of acquittal should be set aside. Our attention has been invited to the obser vations made by this Court in the reported case of Lalu v. The State (1), and to that portion of the judgment dealing with the reversal of the acquittal of the accused Hakimali. In that judgment, this Court laid down the principles which are to be followed in such a case as the present, and in reaching our conclusion that the judgment of the High Court in the present case cannot be allowed to stand, we have given full and careful consideration to those principles. The appeal is therefore allowed, and setting aside the acquittal of the two respondents Bagoo and Allah Bakhsh, we restore the conviction under section 302/34, P. P. C. which was recorded by the Sessions Judge. In view of the length of tune which has elapsed since the commission of the crime viz. about 32 years, we consider that the extreme penalty need not be awarded in the present case, and we accordingly sentence each of the accused persons to transportation for life. A. M. Appeal allowed. (1) P I_ D 1959 S C (Pak.) 258