1969 PLP 795 (SCMR)

SHAHABUDDIN, J.-‑This is an appeal from the judgment ‑of the High Court of West Pakistan, Lahore, by which the acquittal of the appellant Jiwan Shah on the charge that he ‑murdered his aunt Mst. Husain Bibi was set aside and he was convicted of the said murder and sentenced to death. The case for the prosecution was that on 10th November 1956 when the deceased Husain Bibi was sitting near her husband witness Hayat Shah (P. W. 9), the appellant who lived close by came with a takwa and inflicted on her ,injuries of which she died. Hayat Shah raised an alaram 'hearing which several persons including Kamir (P. W. 14) came on the scene, and the latter who had a gun in his hand seeing the appellant running away threatened him that to would be shot down if he did not stop, whereupon he stopped running and was caught and detained at the spot. Hayat Shah who left for reporting the occurrence met the A. S. I. of the police station having jurisdiction on the way sand gave him the information and that officer reached the scene at about the midnight hour and arrested the appellant. Next morning noticing stains on the appellant's clothes he seized them, and the chemical analysis of the stains disclosed that they were of human blood. Evidence relating to the motive was that Hayat Shah was the second husband of the .deceased who had a daughter Mst. Bashiran (P. W. 8) by her first husband. The deceased married Bashiran first to the brother of the appellant who divorced her and thereafter Basbiran was married to another person. The case for the prosecution was that the respondent resented the fact that the deceased had married her daughter outside the family. The defence set up by the appellant was of false impli cation on suspicion owing to ill‑will that existed between him on the one hand and P. Ws. Hayat Shah and Kamir on the other. As regards the circumstances of having been caught and detained at the spot and his clothes having become stained with human blood the appellant's case was one of the bare denial. No witnesses were examined for the defence. In this state of evidence one should have thought that the direct evidence was sufficiently supported by the important circumstantial evidence, but the trial Judge reasoned himself into doubt and giving the benefit of it to the appellant acquitted him. The High Court on appeal by the Stag. ca me to the conclusion that the case had been established and convicted and sentenced the appellant as stated above. On behalf of the appellant reliance was placed on the points noted in the trial Court's judgment and it was argued that those points did create a reasonable doubt. Having been taken through the evidence in this case and considering the reasons given by the Sessions Judge for acquitting the appellant we have no hesitation in agreeing with the learned. Judges of the High Court that the case for the prosecution has been clearly proved. It is true that the learned Judges. have not specifically referred to the various reasons detailed, in the judgment of the trial Court, but their observations sufficiently cover those reasons except with regard to the motive which however loses its importance when we consider the direct and circumstantial evidence adverted to above. With regard to the direct evidence of Hayat Shah which, if believed, is by itself sufficient to prove the case for the prosecu tion, the trial Judge observed that it appeared from the statement of the witness that he was not a reliable witness and then went on to refer to the difference in the statement: before the Committing Magistrate and the evidence at the trial. Having stated before the Committing Magistrate that witness Kamir who apprehended the appellant had also arrived: on hearing the alarm, Hayat Shah stated at the trial that after some others had arrived he (Hayat Shah) went and called Kamir. The Public Prosecutor was allowed to cross examine Hayat Shah with regard to his earlier statement but curiously enough the evidence before the Committing Magis trate was not marked under section 288, Cr. P. C., although in view of a similar discrepancy in the evidence of witness Kamir, his earlier statement was brought on record under that provision of law. However this variation in evidence by itself' is hardly sufficient to discredit Hayat Shah. The reason for the variation is obvious. Hayat Shah is the brother of the father of the appellant. Though he admitted that there‑ were differences between them and also proceedings under section 107, Cr. P. C. it is very difficult to believe that he would have falsely implicated his brother's son letting the real offender go scot free. In this connection the trial Judge has observed that it may be that Hayat Shah himself killed his wife, but this is only a speculation based on the evidence of Hayat and that the deceased was not of good character and his son did not like her. The conduct of Hayat Shah in getting the appellant secured at the spot and reporting the matter promptly nega tives the theory of false implication especially in view of the fact that neither stains of human blood on his clothes nor his having been secured and detained at the spot has been explained by the appellant. The reason given by the learned Judge for not accepting the evidence with regard to the blood‑stained clothes was that the Assistant Sub‑Inspector did not recover the clothes till 8 a.m. the next morning, and that no responsible person of the village was made the attesting witness to the recovery of the clothes, but the persons who attested it were from the other village. The A. S. I. has not been specifically questioned in this regard. It was however elicited from him that he obtained a hurricane‑lantern on reaching the scene but from the fact that he had a lantern it does not neces sarily follow that he was able to see (the stains) on the accused's clothes that night itself. The officer had other work to do and the appellant was in custody. That being so, the A. S. I. having attended to the appellant's clothes the next morning can hardly create any reasonable doubt about the evidence of recovery. Apart from the fact that the clothes of the appellant were stained with human blood there was the definite evidence of Kamir which supports the direct evidence of Hayat Shah. In respect of Kamir also the trial Court referred to the fact that his statement at the trial was different from that before the Committing Magistrate. Having stated during the committal enquiry that he saw the appellant running away armed with a takwa and that the appellant was seized by being threatened that he would be shot, Kan‑ir deposed at the trial that coming to the scene he enquired of Hayat Shah as to what had happened and on being told that the appellant who was at the time in his own house at a dis tance of 5 karams would escape, he went there and took the takwa from him. He did not say that he saw the appellant running away or he threatened to shoot him with a gun. Thereupon his evidence before the Committing Magistrate was admitted under section 288, Cr. P. C. No satisfactory expla nation was given by Kamir for departing from his earlier statement. He merely denied having made such a statement before the Committing Magistrate. Having regard to the fact that the appellant did not explain as to how he happened to be secured and kept at the scene, but merely denied that he was caught by Kamir, we see no reason for rejecting the earlier statement of Kamir that he caught the appellant while he was running away. However, as observed by the learned Judges of the High Court, even if that statement is ignored and Kamir's evidence at the trial is taken into consideration it becomes clear that soon after the attack on the deceased the appellant was taken into custody at the instance of his own paternal uncle who, as stated already, would not have falsely implicated him letting the real offender go scot‑free. We, therefore, dismiss the appeal. Appeal dismissed.