P L D 1965 Supreme Court 44 (PLP)

CORNELIUS, C. J.‑Special leave was given to the appellant, Azim, on a jail petition, to appeal against his conviction and sentence of death for the murder of his wife, which had been confirmed by the High Court on appeal. The case rests purely on circumstantial evidence, which has been described in the judgment of the learned Judges as being "of a delicate nature which they would otherwise be hesitant to accept as it consists only of the word of mouth of one witness". The case provides an occasion for this Court to repeat once again what was said as far back as the year 1953, in the case of Fazal Elahi alias Sajawal v. Crown (PLD 1953 F C 214) by the Federal Court, regard ing the degree of care to be exercised in examining evidence of circumstances on the basis of which, in the absence of direct proof. a Court might draw an inference of the commission of crime by the accused. It was said there that although "a concurrence of well‑authenticated circumstances composes a stronger ground of assurance than positive testimony, unconfirmed by circumstances, usually affords" (Paley), nevertheless, it is necessary to remember that "processes of inference and deduction are essentially involved, frequently of a delicate and perplexing character, liable to numerous cases of fallacy" (Wills on Circumstantial Evidence), and therefore caution must be exercised in accepting proof regard ing any one of the minor facts adduced before it is held to be established for the purposes of drawing an inference therefrom. It was said that a mere concurrence of circumstances may create a specious appearance, and thus cause a fallacious inference where some or all of such circumstances are supported by defective or inadequate evidence. Therefore, it is essential in such cases to accept as the material upon which to base any inference only such circumstances as are "well authenticated". In the present case, we have to say with regret that this caution has not been observed by either of the Courts below in coming to the finding beyond reasonable doubt that the appellant Azim caused the death of his wife. Azim belongs to Sheikhupura district in the old Punjab. The murder was committed at a place in district Thatta, which is only some 50 miles from Karachi. How he and his wife came to be there is described by Mst. Khurshid Bibi, P. W. 4, a sister of the deceased woman, who was named Mst. Sharifan. She put it in these words : "Myself and my husband Alamdin and my brother Feroz were living in Goth Ismail since about 10 or 11 years. The accused was living with his wife Sharifan in Punjab. About 12 or 13 days before the death of Sharifan, the accused had come from Punjab and stayed with us. He had come alone. My brother Ferozedin brought Mst. Sharifan from Punjab 5 days before her death. Mst. Sharifan and the accused both stayed with us." Goth Ismail is included in the area of village Belawah. The accused belongs to a family of barbers. Alamdin and Mst. Khurshid Bibi's brother Ferozedin carried on the occupation of barbers in this area in Sind, and having lived there for so long, it may be assumed that they have developed connections in the surrounding villages and have acquaintance with the affairs of the residents. The murder was not committed in the house of Mst. Khurshid Bibi. The body was found on the morning of the 11th May 1962, blocking the outlet of a minor canal; at a distance of no more than a mile from Belawah, and this fact appears to have become known in the locality very soon. Mst. Khurshid Bibi described the disappearance of both Mst. Sharifan and Azim in the following words "Mother of Ismail (P. W. 8, a zamindar) died in Goth Laldin and both accused and Mst. Sharifan left for that goth to work there. They did not return. Goth Laldin is about a mile and a half from my goth. The next day of their leaving I learnt about the discovery of the dead body of Sharifan by my husband and Ferozedin." The impression gained is that her husband Alamdin and Ferozedin were both in the locality at the time. These men, however, gave a totally different story, namely, that Ferozedin lives not at Goth Ismail as stated by Mst. Khurshid Bibi, but at a place 13 miles away known as Kot Lalu, and Alamdin said that he himself left for Kot Lalu a day or so before the disappearance of Mst. Sharifan and Azim, and gave the remarkable explanation that he had gone there "to secure work of a barber" although there are barber shops at Kot Lalu. It is curious also that when occasion arose for the services of a barber in Goth Laldin, Alamdin and Ferozedin who were established barbers in this locality of 10 years standing, should both be absent and that a total stranger Azim, who had arrived there only about 12 days earlier should have to go to that place to perform the traditional offices, taking with him his wife who had only arrived in that area five days earlier. In fact the story that Ferozedin lived at Kot Lalu and that Alamdin had gone away finds no support whatsoever from the clear statement of Mst. Khurshid Bibi, who indeed contradicts it in the most straightforward manner. The "sole witness" on whom the learned Judges found it possible to rely in order to confirm the conviction of Azim for murder as well as his sentence of death is Muhammad Ismail, P. W. 8, of Goth Laldin. His statement was extremely brief. His mother had died at about 3 p.m. and at about 4 p.m. the accused Azim with his wife Mst. Sharifan came to the house to render the traditional offices of barbers. The burial being over, he returned to his house at 9 p.m. when the accused and Mst. Sharifan were both there. They had their night meal and left his house at about 10 p.m. to go back to Goth Ismail where they lived. In order to do so, they had to cross the minor canal in which the body was eventually found about a mile and a half down‑stream. The very next day, Muhammad Ismail learnt at about 2 p.m. that the dead body of Mst. Sharifan had been found in the canal. The cross‑examination of this witness was extremely brief, showing that counsel had no appreciation of the importance of the evidence he was giving. In view of Azim's very short stay in the locality, and that he was not the regular barber of the family, questions may well have been put as to why Alamdin or Ferozedin did not come, whether he enquired about this matter, and even more important, how it was that after seeing the man only once, he could be so sure of his identity later, for Azim was not in fact arrested until seven months later in the Punjab. No identification parade was held. However, Mohammad Ismail did say that he had never seen Mst. Sharifan before, that he never enquired who she was, and that hh never saw her face. The possibility that the woman might have been some other woman altogether, suggests itself. Alamdin and Ferozedin having, by their evidence, placed themselves at the time of the occurrence of the crime at a distance of some 13 miles in Kot Lalu, gave further evidence of an extra judicial confession to them by Azim. This has not been believed by the Courts below and there can be no doubt whatsoever that it cannot be relied upon at all. The story was told in this manner by Alamdin. Two days after he came away from Goth Ismail, while he was with Ferozedin in Kot Lalu, Azim came there at about 8 or 9 p.m. and told him that he had killed tAlst. Sharifan "as she was of loose character and that he had seen her joking with Sardara, Zamindar of Belawah". Mohammad Ismail, P. W. 8, gave little evidence regarding this latter person. He said "Sardara is a Zamindar and lives in my goth 10 paces away from my house." The suggestion would appear to be that there was a chance encounter between Sardara and Mst. Sharifan, during the latter's short, and presumably busy, stay of about 6 hours in Goth Ismail. Mst. Khurshid Bibi also deposed on this point that "Sardar Arain had given the accused a house in Belawah, but they had not gone there to live". It is difficult to believe that Mst. Sharifan a woman of 25 who had come to this area only five days earlier and was carrying a foctus of five months in her womb had in so short a time succeeded in behaving with a stranger namely, Sardara, so as to provoke her husband to the crime of murder. Mst. Khurshid Bibi gave the lie to this when she said that "Mst. Sharifan to my knowledge was a woman of good character." Even assuming that Mst. Sharifan had done something to give offence that would operate quite as strongly on the minds of her other male relations, i.e. Alamdin and Ferozedin as it would on that of her husband, for they were an isolated barber family far from their original homes. However, there are graver weaknesses in the evidence of Alamdin and Ferozedin. Alamdin's statement was that Azim in the presence of Feroze admitted having killed Mst. Sharifan and asked for help A little later be went out of the house and never returned. After saying in examination‑in‑chief, that in the morning he and Ferozedin went to Padidan Police Station and learnt there that the dead body of a woman had been found near Belawah, in cross examination he clearly said: "I did not go to Kot Lalu Police out‑post nor to Padidan Police Station for informing the Police (about) that the accused had confessed to us," and made this clear by adding "I went straight to my Goth from Kot Lalu." Ferozedin's statement was different in important respects. He said that when the accused came at about 8 p.m. he took Ferozedin aside and told him of a murder and Ferozedin asked him not to disclose this to any one, even to Alamdin, and promised help, after which leaving Azim at the house, he made an excuse and went to Kot Lalu Police Post, but found no official there, and coming back to his house, he found that Azim had been allowed by Alamdin to go away. Then, he told Alamdin that Azim had murdered his wife and should not have been allowed to go. Alamdin replied that he ought to have told him that in the first place. The contradictions are plain, Ferozedin admitted that the Police Post he went to is in District Khairpur, whereas the crime was committed in District Nawabshah, and it should have been obvious to him that it was no use going to a Khairpur Police Post. The next day according to him, he and Alamdin went to Padidan Police Station, and from there to the spot where they found Mst. Sharifan's dead body. Alamdin, of course, said he went straight to the spot from Kot Lalu. The body was identified for the first time, by Alamdin, Ferozedin and by Mst. Khurshid Bibi, who went with them to the spot and this was on the 12th May. As has been mentioned already, Mst. Khurshid Bibi learnt of the death of Mst. Sharifan on the very day after Azim and Mst. Sharifan had gone to Goth Laldin. The question arises how this can be reconciled with the delay of some 24 hours before it became known whose body had been found. The movements which Alamdin and Ferozedin claimed to have made are plainly suspicious, and on the statement of Mst. Khurshid Bibi and bearing in mind all natural probabilities, they should have been in Goth Ismail, when the discovery of the dead body was made. It was only a mile away from where they lived, and they being barbers by profession, whose business traditionally is to keep in touch with news, it is difficult to imagine that they would have waited 24 hours before going to the spot and seeing the corpse. The suspicion at once arises that these persons concealed their knowledge, until the arrival of the Police, and in this respect it should be mentioned that Azim's defence was that his wife had gone to Sind by herself, that he himself had never gone there and that Alamdin and Ferozedin were responsible for the case against him. It cannot be denied that there are circumstances appearing in the case from which this plea could be thought to receive some support. Apart from the statements of Alamdin, Ferozedin and Alamdin's wife Mst. Khurshid Bibi, there is only the statement of Ismail P. W. 8, to show that Azim was in that locality at all and the infirmities in the evidence of Ismail P. W. 8, are only too plain. But stronger circumstances were present on the record which should have made the Courts below immediately alert to the possibility that the truth was not being stated by either the barber witnesses or by Ismail, P. W.

8. These were apparent in the B condition of the body itself. Firstly, the case being that the body was thrown into the canal on the night of the 10th May 1962, and that during the night it was carried by the current to a distance of a mile and a half, till it blocked an outlet and the overflow of water led to an investigation and the discovery of the body, it was clear that the body itself should afford sufficient physical indications to determine the time of death with a fair degree of certainty. It is well‑known that when a dead body lies in water for a considerable time, the skin develops a certain appearance (cutis anserina, i.e., goose flesh). In this case, the doctor who performed the post‑mortem examination on the spot on the afternoon of the 12th May, stated in evidence that he thought that the body had been lying in water for two or three days. When he saw it, it was in a highly decomposed condition, and he could make out only one injury, namely, an incised wound on the head, which he thought was caused by a hatchet. He found ecchymosis on the whole of the right side of the scalp as well a C an ecchymosed fracture of a joint in the scalp, which circumstances clearly indicate that a heavy cutting weapon such as a hatchet was used. But when the Police examined the body some 10 hours earlier, they were able to see a number of other injuries, i.e., besides the cut on the head, they found marks of throttling on the neck, lacerated wound marks on the arm and elbow, lacerated wounds on the neck and the ribs and marks of blood on the right arm. These clearly show that the woman had been belabored with one or more heavy weapons, one at least being a hatchet. The possibility of there having been an accused assailant, using a sota, is clear enough. The importance of the marks seen by the Police lies also in this that there is no evidence or suggestion by Muhammad Ismail P. W. 8 that Azim was carrying any weapon at all on the night of the 10th May, when the witness allegedly saw him leave for Goth Ismail with his wife. Azim may well have had some barber's implements, such as a razor but the cut on the head is clearly not the work of a razor or scissors. But besides this, another physical feature was observed by the doctor from which a firm conclusion regarding the interval following the death can be formed with some certainty. Following up the examination of the cut in the skull, he opened up the brain only to find that the whole of the brain matter was totally liquefied. Reference to standard works on medical jurisprudence, such as that by Modi, will show that even in the summer it takes three to four days before the brain matter completely liquefies. It would thus seem that the body itself provided proof that death could not have occurred later than the afternoon of the 9th May 1962, and it might have been as early as the afternoon of the 8th May. Clear inconsistency appears here between this definitive circumstance and the positive evidence given by both Muhammad Ismail, P. W. 8, and Mst. Khurshid Bibi that the discovery of Mst. Sharifan's body was made on the morning following her disappear ance. When it is borne in mind that the corpse had been in water for a considerable time, a doubt immediately arises whether in fact, the death could have possibly occurred as late as the prosecution, by the evidence of Muhammad Ismail, P. W. 8 and Mst. Khurshid Bibi had attempted to establish. Other doubts follow, e.g., whether the story of her being last seen alive on the night of the 10th May, is true. It thus appears when the various circumstances are examined in detail, none of them can be treated as "well‑authenticated" except the proof furnished by the body itself, which contradicts the other evidence led to build up a case that, in all probability, the murderer was the accused Azim. The latter evidence comes mostly from Alamdin, Ferozedin and Mst. Khurshid Bibi, of whom the two first‑named persons are alleged by Azim to be the persons who manufactured the case against him. Ismail's evidence is contradicted by the proved condition of the body. Accordingly, we find that the case against Azim so far from being established beyond reasonable doubt rests upon no circumstance on which any inference of the connection of Azim with this murder can at all be founded. The learned Judges have relied to some little extent on what they described as "absconsion" of Azim. The record does not show at what stage Azim's name was mentioned as a suspect in this case. On the evidence led, namely, the statements of Alamdin, Ferozedin, Mst. Khurshid Bibi and Muhammad Isamil, P: W. 8, it is not possible to be certain beyond reasonable doubt that Azim was in that locality at the relevant time. Therefore, the fact of his not having been apprehended until some seven months later, has no weight whatsoever for supporting an inference of the guilty against him. The appeal is accordingly allowed and Azim is acquitted. A. H. Appeal allowed.