P L D 1954 Federal Court 112 (PLP)

CORNELIUS J.--‑This appeal by special leave has been prefer red by one Muhammad Siddik who stands convicted under section 302, Pakistan Penal Code, and sentenced to death for the murder of his brother‑in‑law Ismail. The appeal is from the judgment of the Sind Chief Court confirming the conviction and sentence. Ismail lived in Hyderabad, Sind, along with his father Abdul Rahman, his wife Mst. Shakooran, sister of the accused, and her mother Mst. Kamo, who had been living with them for about seven years. Muhammad Siddik used to live at Karachi, but on the 29th August 1950. he visited Hyderabad in company with three of his relatives. The purpose was to prevail upon Mst. Kamo to go with him to Karachi to look after his household as his wife had fallen ill. The unusual steps taken to support a natural request indicate that Ismail anticipated opposition, and it is quite clear that this was offered by Mst. Kamo alone. She says he had ill treated her during the time she had lived with him. But it is perfectly clear that neither Abdul Rahman nor Ismail offered the least resistance to the request. After a futile visit to the house of Ismail at 4 p.m., Muhammad Siddik came again, and this time alone, at 7‑45 p.m. (sunset was at 7‑2 p.m. and therefore it must have been growing dark at this time). Abdul Rahman an old man of 70 who can only see from one eye, was in the court yard, attending to a lamb, and learning from him that Mst. Kamc was on the upper floor, the accused proceeded to walk up the stairs, which are set against a wall, with a wooden railing on the courtyard side. On the steps he encountered Ismail who was coming down, and it was an the tenth step from the top that Ismail sustained a knife injury which pierced his heart, and he collapsed at once and rolled down the, steps to the bottom. The knife was admittedly held by the accused, who has, however, plea ded throughout that the injury was accidentally caused through Ismail s foot slipping while he was giving Muhammad Siddik a playful push by way of a joke. Muhammad Siddik was carrying the knife open in his band, intending to frighten his mother with it, and Ismail fell upon the knife receiving the wound in his heart, and then Ismail fell upon Muhammad Siddik, and the two man rolled together down to the botton of the staircase. The prosecution case, on the other hand, is one of deliberate murder, and the Courts below, in accepting it have relied on the direct evidence of Abdul Rahman and 14ist. Shakooran. Mst Shakooran was engaged, at the relevant time, in cooking the family meal. Having regard to the lateness of the hour, this was natural. In order to see the fatal injury being received, she had to be outside the kitchen, and the Courts below have believed that she witnessed the occurrence from the top of the staircase. As to Abdul Rahman, there could be no doubt that being in the court yard, he could have the whole staircase in his view. On the other hand, the accused's version is based on two statements made by him. On the 1st September 1950, he made 9 statement to a Magistrate, in which while declaring that Ismail.s death was accidental, he added that Ismail was on intimate terms with his mother (who is a withered old woman of 65) and that earlier that day, be (the accused) had seen Ismail committing intercourse with his mother, and had been provoked to such an extent that he bought himself a knife in the bazar, intending to kill her. The second version was given at the trial, and this time the possession of the knife was differently explained. The accused said the knife was given to him by Abdul Rahman; just before the occurrence, with the advice that the accused should use it to frighten his mother with. A third version, to which of course no credence or importance can be attached, is contained in the grounds of the petition for special leave.. It is that the accused was walking up the staircase, eating a guava which he had in one hand, and in the other an open knife with which to cut the guava. In each statement, however, the plea of accident is specifically raised. The learned judges in the Chief Court refused to accept the suggestion, which seems to have found favour with the trial judge, that the allegation of illicit intimacy contained in the confession, was made under police prompting. Yet the absence of any sug gestion of this kind to the inmate‑witnesses, who must have had first band knowledge of the facts, if the suggestion were so founded, plainly supports the view of the trial judge. On the other hand the story that Abdul Rahman gave the accused the knife is not supported even by a question to Abdul Rahman on the point. The record is free from any indication that either Abdul Rahman or Ismail or anyone else stood in the way of the accused taking his mother to Karachi, and as that was the single purpose of his visit, it is reasonable to conclude that the knife was being carried in order to frighten the old woman into agreement. Nothing appears to suggest that the accused had an intention to cause the death of anyone, or injury to anyone, least of all Ismail. At the trial, Abdul Rahman stated that on his second visit, the accused was using abusive language, and that seeing Ismail coming down the staircase as the accused was walking up, Abdul Rahman called to him to look out. It was brought out in cross examination that he had never said so in his statement to the police very shortly after the occurrence. This statement was originally proved in evidence as a first information report, but was later excluded as having been recorded under section 116 Criminal Procedure Code (i. e. in the course of the investigation). The action so taken by the trial Judge was approved by the learned judges in the Chief Court. As this first statement of Abdul Rahman shows material difference from his evidence in Court, the question of its admissibility becomes of considerable importance. The facts are these. At 8.15 p.m. two Constables produced Muhammad Siddik at the police station, and a brief note of what they said was recorded in the roznamcha which showed that "they A saw the accused running away with open knife and his clothes were blood‑stained and people said he had stabbed someone". The facts, as proved by the evidence of the Constables, as well as the statements of Abdul Rahman, and two neighbours Muhammad Shafi and Rahmatullah, are that immediately after the occurrence. Abdul Rahman caught hold of the accused, and with the help of the neighbours, tied his hands with rope, and while they were so engaged, just outside the house, the two Constables came up and the accused was handed over to them, along with the knife. Each Constable has stated in evidence that he was told that the accused had killed Ismail. Therefore the story of capture while run ning away was false, but the vagueness of the accusation "people said that he had stabbed some one" when contrasted with the spe cific information said to have been received on the spot is clearly significant. It goes to the question whether when the Thanedar, after recording this note, left for the spot, he did so having either information or a reasonable suspicion of the commission of a cognisable offence. (Section 1.54 and 157 Criminal Procedure Code). It is ‑a question of fact in every case whether a statement recorded by a police‑officer was recorded in the course of an in vestigation, or formed the basis for the commencement of the investigation. In the latter case, even though the police‑officer's attention may have been attracted to the matter as one which might fall within his duties, before the statement was recorded, it will not be excluded under the provisions of section 162 Criminal Procedure Code. In this view, the accused's plea of accident becomes of importance. The words of the note in the roznamcha do not exclude the possibility that the stabbing was accidental, ands there is ground for believing that information leading to a belief or,; at a lower level, a reasonable suspicion that a congnisable offence had been committed, was not forthcoming until Abdul Rahman s statement had been recorded on the spot. It would thus appear that the initial report of Abdul Rahman was wrongly excluded from consideration. It is a detailed account of the whole affair commencing with the marriage of Ismail to Mst. Shakooran fifteen years earlier in Patiala State, and briefly covering the movements and lives of the members of the family up to the 29th August 1950. The incidents of that day were narrated with particularity, and with special reference to the encounter on the staircase, there are material differences between this report and Abdul Rahman's evidence in Court. An initial report of an occurrence such as this constitutes a valuable check against the wide‑spread tendency towards exaggeration and improvement by complainants, when the case is put into Court. Where it ap pears that what purports to be an initial report was in actual fact drawn up after the matter had been investigated, either partially or wholly, the danger of extraneous matter having been introduced deprives the record of much of its value, and the law is that it can then be used only for the purpose of contradicting prosecution witnesses. Here, serious prejudice to the case results from exclud ing Abdul Rahman's report, and on the other hand, nothing appears to indicate that it incorporates matters elicited in the course of investigation. The salutary rule that statutory provisions should be construed so as to suppress the mischief and advance l, the remedy may thus be invoked in aid of receiving the police statement of Abdul Rahman as the initial report in the case :‑ From this statement, when compared with the testimony given in Court, the following matters appear plainly, viz: (i) that just before Ismail was fatally wounded, Muhammad Siddik had asked him to send his mother down and Ismail bad asked him to fetch her himself; and (ii) no mention of Mst. Shakooran is made in the report, though she is said in evidence to have played a very prominent part in the incident, running down the steps to the aid of Ismail, seizing his shirt and holding on to it as he rolled down the steps, until he came to rest at the bottom of the stair case. The first‑mentioned matter is relevant to the question whether the accused was at all in the state‑ of mind in which he would be likely to step Ismail. The initial report indicates that the same conversation passed between Ismail and the accused as had taken place between Abdul Rahman and Ismail in, the courtyard immediately before. A civil question was asked and a natural and civil answer, whose sincerity there seems not the slightest reason to doubt was returned. Eliminating the evident improve ment by Abdul Rahman regarding the use of abuse and his warning to Ismail, which were evidently 'designed to show that the accused Bias in an infuriated state in which he was likely to act violently, the conclusion‑cannot be avoided that he was acting in a collected and calm manner. This impression is heightened by the evidence of both Abdul Rahman and Mst. Shakooran that no words passed between the two men on the staircase. If so, it becomes pertinent to ask‑why did the accused stab Ismail, towards whom he bore no grudge, much less animus, of any kind. The absence of an answer necessarily weighs in favour of the plea of accident. The Courts below have rejected that plea as almost unworthy of consideration. The trial Court has described it as "fantastic" while the learned judges in the Chief Court declare that "it is in herently incredible and cannot be believed even for a moment". Both Courts proceed on the same grounds viz. (i) that because the weapon had penetrated to the heart, cutting a rib in the process, there must 'have been a violent blow struck and (ii) that Abdul Rahman's conduct in immediately seizing the accused, securing him with the help of neighbours, and delivering him to the police showed that it could not have been an accident. Neither circum stance justifies the conclusion reached that the plea is outside the bounds of belief. A fall is more or less heavy according to the height from which the person falls, and if a sharp pointed knife be held in the way, the possibility of its cutting through the skin and soft structures into the thorax and of the sharp edge cuffing the edge of a rib in passing cannot be excluded. The capture of the accused and the treatment he received would be exactly the same if the father believed that his son had been deliberately killed, and bearing in mind that Muhammad Siddik had been something of a nuisance in the house that day, and morever, was carrying an open knife, the instantaneous death of the son would undoubtedly incline the father in favour of that belief. It is in this respect that the possibility that at the instant when the wound was received, and which was not preceded by any sound or speach such as might attract attention, the witnesses Abdul Rahman and Mst. Shakooran were attending 'to their own affairs, gains import ance. Mst. Shakooran's name is not mentioned in the initial report at all and she certainly had her own work to attend to, while Abdul Rahman was admittedly attending to a lamb, when he was interrupted by Muhammad Siddik. But, indeed, such a treatment of the accused's plea of accident in a serious case of murder cannot but be disapproved. In a recent case that of Safdar Ali (P L D 1953 F. C. 93.) where the plea of self‑defence was raised, this Court had occasion to examine the proper proce dure to be followed in arriving at a decision on the plea. It was held that the principle laid down in the English case of Woolming ton (L R 1935 AC 462) is not inconsistent with Pakistan law. That principle was stated by Lord Sankey in a familiar passage, from which the following extract may be quoted with advantage:‑ "When evidence of death and malice has been given the accused is entitled to show, by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If .the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether even if his explanation be not accepted, the act was uninten tional or provoked, the prisoner is entitled to be acquitted". In Safdar Ali's case, My Lord the Chief Justice observed as under: "It is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circum stances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt". The procedure thus indicated as appropriate in cases of this kind has not been followed in either of the Courts below. The two rival cases for the prosecution and the defence have been dealt with as if they lay in two separate compartments. The Chief Court for instance, first dealt with the evidence supporting the prosecution and recorded a conclusion in the following words :‑ "So we find that the ocular testimony of Abdul Rahman and Mst. Shakooran, corroborated by the evidence of 141st. Kamo, Rahmatullah, Shafi Muhammad, Ishtiaq and Abdul Razzak, as also by the bloodstained clothes and other articles found from the person of the appellant, and by the important circum stantial evidence that the appellant was immediately tied on the spot by means of a rope and then surrendered to the police, completely proves the guilt of the appellant." The next sentence reads as follows :‑ "We shall now deal with the theory of the appellant". In the sequence adopted by the learned judges, the latter effort might be thought to have been obviated by the finality achieved by the earlier effort. After dealing with the variations in the accused's several statements, the learned judges concluded, with, reference to the theory of a mere accident" that it was "in herently incredible etc." So far from the theory being "incredible", it appears on the contrary to start with a major advantage namely, the complete absence of motive or other exciting cause for so dreadful an act as stabbing a brother‑in‑law through the heart, at sight. But there are other, supporting circumstances as well. According to Abdul Rahmans version, Ismail rolled down the stairs, with his wife vainly attempting to arrest his fall, but Muhammad Siddik was immediately gripped by Abdul Rahman from behind, where he stood, in the middle of the staircase. This evidence, if believed gives the lie to the accused's version that both be and Ismail rolled down the staircase, and it was after that that Abdul Rahman caught him. On the other hand, Mst. Shakooran who may be believed to have come out of the kitchen quickly enough on hearing the noise outside (including her husband's cry), clearly admitted that it was on the last step that Muhammad Siddik was caught. A further circumstance which can only be explained on the theory advanced by the accused, and which, though it appeared from the outset, the prosecution have made no attempt to explain, is the presence of a second knife injury 1" x 1/3", muscle deep, on the deceased's buttock. Neither Abdul Rahman nor Mst. Shakooran speaks of a second blow, and if Ismail collapsed and rolled down the staircase while the accused remained where he was half way up, in the grip of Abdul Rahman, no second injury could possibly have been caused. But if it be believed that the two men rolled down the steps together, and believing also that the accused kept hold of the knife throughout, the possibility of the knife coming into contact with Ismail's body again at once arises to explain the second out. The duty of a Court in cases of this kind is to review the entire evidence and circumstances at the close, before arriving at l a conclusion regarding the truth or falsity of the defence plea. All the factors favouring belief in the accusation must be placed, in juxta‑position to the corresponding factors favouring the plea in defence, and the total effect should be estimated in relation told two questions, viz.‑ (1) Is the explanation of the accused satisfactorily established by the evidence and circumstances appearing in the case ? (2) If the answer to question (1) be in the negative, is there yet a reasonable possibility that his explanation might be true, so as to cast a reasonable doubt upon the prosecution case ? In the present case, the accusation of deliberate murder is suppor ted by the two alleged eye‑witnesses, whose testimony shows evident exaggeration, apart from other infirmities. The fatal injury might equally well have resulted from a blow, or through a fall on the weapon from an appreciable height. The plea of accident is supported by the improbability of a‑ deliberate and necessarily fatal below being struck by the accused at Ismail, when the latter had given him full liberty to carry out his wishes, and had neither then nor earlier, furnished any cause of grievance or excitement to the accused. The circumstances militate against the accused being in a violent frame of mind, and the late‑produced evidence to that effect is evidently false and exaggeration. It is by no means impossible, in the circumstances alleged by the accused that the men above, namely Ismail, should have stumbled and fallen on top of Muhammad Siddik, knocking him down as well so that both rolled down the staircase together. The existence of a second injury in an unlikely place, the buttock, on the deceased's person, and the capture of the accused at the bottom of the staircase, both support this possibilty, and the accused's version gaining strength thereby, it is necessary to take seriously the plea that the fatal injury was received in the process. Even if it be thought that these circumstances are not sufficient to establish that the death was accidental, yet, there can be no question but that, in the circumstances enough has been established to give rise to a reasonable possiblity that the plea of accident is true, sufficiently to create a reasonable doubt in relation to the proof of the prosecution case. The accused is entitled to the benefit of this doubt. We accordingly allow this appeal and acquit Muhammad Siddik. A. H. Appeal allowed.