P L D 1964 (W (PLP)

H. T. RAYMOND, J.

‑The three appellants Yousif, Gulbeg and Bachayo were tried along with the acquitted accused Sulleman by the Sessions Judge, Dadu, for offences under section 302, P. P. C. so far as the appellant Yousif was concerned and 302/34, P. P. C. so far as the remaining three accused were concerned. There was also a further charge against the appellant Yousif under sections 394/397, P. P. C. and as against the remaining three appellants under section 394, P. P. C. In the result, the co‑accused Sulleman was acquitted and the three appellants convicted and sentenced as under:‑--The appellant Yousif was convicted under section 302, P. P. C. and sentenced to death. He was also convicted under sections 394/397, P. P. C. and sentenced to seven years R. L, this second sentence to take effect if the sentence of death was not confirmed by the High Court. The remaining two appellants Gulbeg and Bachayo were convicted under sections 302/34, P. P. C. and 394, P. P. C. and were sentenced to undergo transportation for life and five years R. I. respectively both the sentences to run concurrently. The present appeal is from these convictions and sentences. The death sentence imposed upon appellant Yousif is also before us for confirmation. This judgment then will dispose of these appeals as well as the question of the confirmation of the death sentence imposed upon appellant Yousif.

2. The case for the prosecution as set out in the F. I. R. lodged by complainant Muhammad P. W. 4 was that on the night between the 28th‑29th December 1962 he was aroused from sleep by cries of "thief" "thief" coming from the house of his cousin Punhoon at about 3 a. m. On reaching there be found Punhoon lying unconscious on the ground with an incised injury on his head which was bleeding. Ghulam Hussain P. W. 5 was already there and he informed the complainant Muhammad that he (Ghulam Hussain) had seen two thieves taking away Punhoon's bullock and Punhoon running after them crying "thief", "thief". A third thief from behind gave Panhoon a blow with his hatchet as a result of which he fell to the ground. Ghulam Hussain who was then carrying a torch with him flashed it on to this third thief and observed that he was wearing a white turban and had his face open. This thief ran away along with his other two companions. Ghulam Hussain added that on account of fear he did not pursue these three thieves. The complainant Muhammad concluded his F.1. R. by saying that on a search being made for prints the prints of three thieves were seen going with the hoof marks of the bullock at the back of the house, north wards. The complainant Muhammad immediately proceeded to Phakka and informed Syed Din Muhammad Shah Nekmard who was living there of the incident and this Nekmard accompanied the complainant to the Phakka Police Outpost two miles away from the vardat, where they met mounted constable Kauro Khan P. W. 11 who gave them a note on a blink form Exh. 12 which is in these words "The complainant complains of a cognizable crime. He is given blank book form and directed to the police station. The complainant will disclose further information in person." The complainant took this note with him and proceeded to Bhan Police Station a further distance of seven miles where his F. I. R. was recorded by Head Constable Noor Mohammad P. W. 12 at 9‑15 a. m. on the morning of 29‑12‑1962.

3. The investigation into this case was first taken up by Mounted Constable Kauro Khan P. W. 11 who after issuing the blank form Exh. 12 proceeded to the vardat immediately reaching there at 8‑30 a.m. that day. He found the dead body of Punhoon and prepared a Mashirnama of the scene of offence as well as of the one injury seen on this dead body. He sent the dead body to the hospital for post‑mortem examination and on further examining the scene and the place from where the bullock had been stolen he observed that the rope of the bullock appeared to have been cut and that naked foot prints of four persons were visible going along with the hoof marks of the bullock. He then secured the torch of P. W. Ghulam Husain as per Mashirnama Exh. 24 and recorded the statements of P. W. Ghulam Husain, Muhammad, Urs, Din Muhammad Shah, Rasool Bux and others and went in search of accused Sulleman whose name had by then transpired. On the next day this mounted constable handed over the investigation to the S. H. O. Bhan S.

1. P. Muhammad Aziz Khan P. W. 13 who with the assistance of Head Constable Noor Muhammad P. W. 12 secured the four accused. The first of the four accused to be arrested was the acquitted accused Sulleman who was secured on 4‑1‑1963. Yousif and Bachayo were secured later that same day and appellant Gulbeg on the next day 5‑1‑1963. The appellant Bachayo produced a hatchet from his house which was secured under Mashirnama Exh.

26. He also led the police party to Korai village to the house of Kadir Bux Korai P. W. 6 from where the stolen bullock was secured as per Mashirnama Exh.

27. Appellant Gulbeg also produced a hatchet which was secured under Mashirnama Exh.

29. Appellant Yousif who had been arrested on 4‑1‑1963 was found with clothes which bore a few stains of washed blood and these clothes consisting of one shalwar of white Bafta cloth and one white shirt old and torn were secured from him under Mashirnarra Exh.

37. This appellant Yousif then led the police party to his house where from the thatched roof he produced a blood‑stained hatchet Article which was secured under Mashirnama Exh.

38. The S. H. O. on 18‑1‑1963 held an identification test in respect of the four accused at which Ghulam Hussain P. W. 5 successfully picked out the appellant Yousif. The next day 19‑1‑1963 a foot print test was held at which Police Pagi Karam Ali P. W. 9 successfully picked out the foot‑prints of all the four accused. On completion of the investigation the four accused were chal laned in Court.

4. The three appellants in their examination under section 342, Cr. P. C. in the two Courts below have denied their guilt in this case. The appellant Yousif denies the recovery of any blood‑stained clothes from his person of the production of a hatchet. He, however, admits that he was picked out at an identification parade by P. W. Ghulam Husain and that he had been submitted to a foot‑print test but cannot say whether Karam Ali Pagi had picked out his foot‑prints. The other two appellants Gulbeg and Bachayo deny taking away the bullock on the night of the incident or leaving it with Kadir Bux Korai. They also deny producing a hatchet before the police and with regard to the foot‑print test whereas appellant Bachayo denies such a test in his statement in the lower Court, in the Sessions Court, they both say that the Pagi had seen them at Bhan Police Station before the test. All the three appellants stated that they have been involved in this case on account of enmity with the prosecution witnesses and conclude their statement by giving the cause and the details of this enmity.

5. That deceased Punhoon died an unnatural death is not disputed. Apart from the evidence of P. Ws. 4, 5 and 8 namely Muhammad, Ghulam Husain and Muhammad Urs as to the factum of the incident which led to the death of deceased Punhoon, there is also on record the medical evidence of Dr. Bashir Ahmad Exh.

46. This doctor performed a post‑mortem on the dead body of deceased Punhoon on 29‑12‑1962 and found one external injury namely a transverse incised wound 6 " x 1" x bone deep over the occipital region with fracture of the occipital bone. On internal examination he found fracture of the skull with brain matter exposed. He has given his opinion that death was due to shock and haemorrhage as a result of the external injury mentioned above which was sufficient, in the ordinary course of nature to cause death.

6. The sole point of importance for determination in this case is whether the guilt of these three appellants has been established beyond all reasonable doubt. Dealing first with the case against appellant Yousif, we find that the evidence against him consists of the one and only eye‑witness Ghulam Hussain P. W. 5 coupled with the circumstantial evidence in the shape of his blood‑stained clothes and production by him of a blood‑stained hatchet and the foot‑print test. It is neces sary to examine each of these pieces of evidence in some detail.

7. Now, the evidence of Ghulam Husain P. W. 5 is that the deceased Punhoon was his second cousin and that his house is situated to the south of deceased's house. On the night of the incident he was awakened from sleep some time after mid night on hearing cries of deceased Punhoon and taking his torch with him he went out to see what was happening. With the light of this torch he saw two thieves taking away a bullock followed by a third thief. He admits that none of the accused were known to him previously. His account of the incident in the main is that one of the thieves attacked Punhoon with his hatchet and on flashing his torch he saw the face of that thief clearly. In as much as this witness Ghulam Husain is the only eyewitness in this case it is necessary to closely examine his evidence to find out whether implicit reliance can be placed upon his testimony. In doing so, it is apparent to us that he has given three versions, as it were, of the incident in question. The first of these versions was given by him there and then to the complainant Muhammad and it is incorporated in the F. I. R. Exh. 13 lodged by this complainant. The second version was given by him in the lower Court and the third in the Sessions Court. The big difference that strikes one at once on reading these three accounts of the incident as given by him is that in the F.I. R. and in his statement in the Committal Court only three accused are mentioned whereas in his statement in the Sessions Court he implicates all the four accused that were tried by that Court. Apart from this big difference, there is also a difference perceivable on perusing the three versions as to which culprit actually dealt the fatal blow to deceased Punhoon. The account of the incident as given by Ghulam Hussain to complainant Muhammad and as appears in the F. I. R. is that he (Ghulam Hussain) saw two thieves taking away Punhoon's bullock, Punhoon pursuing them raising cries of "thief", "thief" and a thief coming up from behind and giving Punhoon a blow with his hatchet as a result of which Punhoon fell to the ground. In his deposition in the Committal Court which has been brought on to the record of the Sessions Court as Exh. 16, Ghulam Hussain deposes that he saw two thieves taking away one bullock and a third thief going behind them when one of the two culprits who were taking away the bullock came back and gave a hatchet blow to Punhoon who fell down. In the Sessions Court, the version of this one and only eye‑witness Ghulam Husain is that there.were four thieves two of whom were taking away the bullock and were followed by a third thief. He then heard the fourth thief crying out to his companions to come back and release him from the clutches of Punhoon when the third thief came back and gave a blow with his hatchet to Punhoon as a result of which Punhoon fell down unconscious and the thief who had been caught by him thus earned his freedom. From these three versions as given by this eye‑witness Ghulam Husain it is plain that he is not clear in his own mind as to which of the thieves actually struck the fatal blow to deceased Punhoon. In his first version as set out in the F. I. R. Punhoon's assailant was the third thief who came from behind and not one of the first two who were taking away the bullock. In his version in the Committal Court Ghulam Husain explains that the assailant was one of the two culprits who were taking away the bullock and not the third culprit who came up from behind. In his state ment in the Sessions Court Ghulam Husain says that the assailant was a third thief who came back to get the fourth thief released from the clutches of deer Punhoon arid for that purpose attacked Punhoon with his hatchet. In this state of the record as it appears before us and the versions given by P. W. Ghulam Husain we feel that when this witness is not clear in his own mind as to the correct number of the thieves or as to which thief it was who came back and dealt the fatal blow to Punhoon, we cannot, in such in such Place implicit reliance upon the evidence of this witness. Moreover, the night, apparently, was a dark night necessitating the use by this witness of his torch and with the aid of this torch he must have captured but a momentary glimpse of the face of the assailant. This face, according to Exh. 14, which is an extract from the statement of complainant Muhammad in the lower Court was not fully open. Muhammad had stated in the Committal Court that Ghulam Husain had told him that the assailant had a turban on his head as a result of which his face was not fully open. Ghulam Hussain himself has in cross‑examination admitted in the Sessions Court "The assailant gave a blow and immediately took to his heels." From this it is apparent that Ghulam Husain must have got a momentary and partial glimpse of the face of the assailant. This incident happened on the early‑ morning of 29‑12‑1962 but Ghulam Husain was only put to an identification test of the appellants on 18‑1‑196 3 that is to say more than twenty or twenty‑one days later. This delayed identification test based upon a momentary and partial glimpse of the face of the assailant is such that we find it extremely difficult to accept with implicit reliance. Besides, identification evidence has been considered by various Courts to be a weak type of evidence a form of evidence which is always to be taken with a considerable amount of caution, as held in the case of Ramzan and others v. Emperor (A I R 1929 Sind 149) Monir in his Law of Evidence Volume I at page 43 has remarked that‑

Identification at night during a dacoity when the people are terrorised is generally of very little value. and again‑-- "Chances of error in identification become greatly increased when the identification is based upon a momentary glimpse in the confusion and excitement of the moment at night though it be a moon‑lit‑night".

8. A further flaw in the evidence of P. W. Ghulam Hussain has been pointed out by Mohammad Hayat Junejo appearing on behalf of the appellants. The learned Advocate has contended that Ghulam Husain is a native of village Ibrahim Chandio in District Dadu where he has spent all his life. The appellant Yousif resides in Bareejo village only a mile away from Ibrahim Chandio village. Therefore, it is very likely that Ghulam Husain must have known the appellant Yousif and, therefore, if the assailant was, in fact, the appellant Yousif, then Ghulam Husain should have mentioned his name at the very first instance. Now, this Ghulam Husain has, for the first time, in the Sessions Court stated that he cultivated the land of Ummedali Zardari situate in Nawabshah District. In his police statement he has told the police that he resides in Ibrahim Chandio village and both in the Committal Court and in the Sessions Court he has given his residence as Ibrahim Chandio village. At the hearing in the Sessions Court the Voters List published by the Election Commission, Pakistan, of voters for the Provincial Assembly shows this Ghulam Husain son of Mianditto as a resident of Ibrahim Chandio village. In spite of all this evidence on record Ghulam Husain has in the Sessions Court attempted to show that he resides in Nawabshah District and that he had come to Ibrahim Chandio village only two days before the incident to see his ailing father. This denial of Ghulam Husain that he belongs to Ibrahim Chandio village and resides there has been urged by the learned defence Advocate as a further circumstance discrediting his testimony and exposing him as an unreliable witness. For all these reasons, then, we find it extremely difficult to accept the testimony of P. W. Ghulam Husain with implicit reliance. As was pointed out by their Lordships of the Supreme Court in the case of AU Sher v. The Crown that where‑ The case mainly hinges on the testimony of Mst. Mehar who is the only eye‑witness in this case, and there are certain features in her evidence which appear to us to justify the criticism made by the learned counsel for the appellant that she has tried to improve her story in Court as compared with the recitals in the first part ..we find it difficult to hold that in the circumstances of this case the acceptance of Mst. Mehar's testimony would be a sufficient basis for the conviction of Ali Sher on a charge of murder.

9. The remaining evidence against the appellant Yousif apart from the Foot Print Test dealt with below consists of his blood‑stained clothes and the production by him of a blood‑stained hatchet. These clothes were secured from his person six days after the incident on 4‑1‑1963 and it has been argued that it is doubtful whether an accused would carry on his person such tell‑tale marks of his crime for a period of six days after the crime. Of course, the Mashirnama relating to the seizure of these clothes Exh. 36 shows these clothes as having been washed but neither the Mashir Wahid Bux P. W. 10 nor the S. H. O. Muhammad Aziz Khan P. W. 13 say so in their evidence. The Chemical Analyser's report Exh. 43 disclosed that human blood was found only on the Shalwar and that the shirt was not stained with blood. With regard to the production of the blood‑stained hatchet although the Chemical Analyser's report shows that this hatchet was stained with human blood yet this circumstance by itself cannot suffice to uphold the conviction of the appellant Yousif in this case. In the case of Siraj v. The Crown (P L D 1956 F C 123.), their Lordships held that

"the circumstances that the appellant produced the handle of the hatchet which had stains of human blood on it is, by itself, plainly insufficient to prove that the appellant committed the murder in question." Again, in the case of Ali Sher v. The State referred in para. 8 above their Lordships when dealing with the recovery of the pistol at the instance of the appellant held that while this is no doubt a suspicious circumstance against him yet it was not proved to be connected with the commission of the crime in this case.

10. There remains for consideration the case against the remaining two appellants Gulbeg and Bachayo. With regard to appellant Gulbeg the learned Assistant Advocate-General has conceded that the main piece of evidence against him is the foot print test held on 19‑1‑1963. It is admitted that this appellant was arrested on 5‑1‑1963 that is to say a day after the arrest of Bachayo and the production at the instance of Bachayo of the stolen bullock from the possession of P. W. 6 Kadir Bux Korai. The evidence of Kadir Bux P. W. 6 strikes us as being in the nature of the evidence of an accomplice in so far as on his own IF showing he could be dealt with as a receiver of stolen property. He admits that the stolen bullock was left with him for about a week although the two appellants Gulbeg and Bachayo who had brought it to him had said that they were leaving the animal there for 2‑3 days as it was tired and would return thereafter to collect it. These 2‑3 days passed by and yet Kadir Bux made no attempt to contact these two appellants to come and take it away. It was only on 4‑1‑1963 that appellant Bachayo brought the police and Mashir to Kadir Bux's place and the bullock was then secured. This appellant Gulbeg was not with the police party on 4‑1‑1963 and thus the main evidence against him consists of the foot‑print test held on 19‑1‑1963. With regard to this test this appellant as well as appellant Bachayo have said in their examination in Court that they were taken to Bhan Police Station where Pagi Karamali had seen them. This Pagi has admitted in cross‑examination that he is attached to Bhan Police Station where he resides in a quarter and which police station he attends every evening for roll call. Besides, the S. H. O. Mohammad Aziz Khan P. W. 13 has also admitted in cross-examination that he had taken the four accused to Bhan Police Station and kept them there for the night and had taken them out again the next morning.

11. With regard to the case against the appellant Bachayo he was secured on 4‑1‑1963 on which date he led the police party to the house of Kadir Bux Korai from where the stolen bullock was secured. The main evidence against him consists of this Kadir Bux P. W. 6 and the foot‑print test Exh.

7. As for Kadir Bux, we have already dealt with his evidence in the above para‑IG graph. He should really have been made a co‑accused as receiver of stolen property. As an accomplice then his evidence cannot be accepted without corroboration. With regard to the foot‑print test we have also in the above paragraph pointed out the infirmities of this test. A further weakness in regard to this test which may be mentioned here is that according to the S. H. O. he had shown these prints to Usman Rajperi on 30‑12‑1962 the very day after the incident. He had also recorded the statement of this Rajperi and yet no test was held from him. This omission H tends to cast further doubt upon the genuineness of the test held from the Police Pagi Karamali P. W.

9. There is yet another circumstance which casts doubt on the evidence of the Police Pagi and that is that whereas the evidence of Ghulam Husain and Muhammad is to the effect that the thieves proceeded with the bullock towards the north of their houses and they saw naked foot‑prints going towards the north of their houses, yet the Police Pagi has stated that the prints were to the south of the dead body and that‑ "it is not correct that I was shown prints to the north of the dead body." In this connection it may be mentioned that mounted constable Kauro Khan P. W. 11 who was the first police officer to arrive at the vardat and who examined the scene and prepared a Mashirnama thereof as per Exh. 21 has stated‑ "There were no prints at a distance of 10 or 15 paces towards the south of the place of murder." Thus, it is only the Pagi who claims to have seen foot‑prints to the south of the place of murder and with the rest of the, evidence showing that the thieves had run away to the north of the place of murder, it is in doubt as to whether the Pagi had actually seen these prints at the vardat.

12. As a result, therefore, of this unsatisfactory state of evidence in this case we find ourselves unable to uphold the conviction of these three appellants and giving them the benefit of a reasonable doubt, we set aside their convictions and sentences, and would direct that they be set at liberty if not wanted in any other case. S. Q. Appeal accepted.