P L D 1959 Supreme Court (Pak (PLP)

CORNELIUS, J.‑‑This judgment will dispose of two criminal appeals which arise out of the same matter, namely, the trial of three persons, named Isso, Hakimali and Lalu, for the murder of one Abdul Latif, allegedly committed on the forenoon of the 22nd September 1957, on a public road just outside the town of Shikarpur in Sind, by means of hatchet blows. Hakimali and Lalu are brothers, sons of one Khusb Muhammad; and Isso is a cousin of theirs. They are of the caste Lohar‑Burdi which appears to be a tribe among the Baloches. The Sessions Judge, who tried them with the aid of four assessors, convicted each of the accused persons under section 302/34, Pakistan Penal Code. Hakimali and Lalu, who were found to have caused fatal injuries with hatchets to Abdul Latif were sentenced to death. As for Isso, it was taken into consideration that he was armed with a lathi and that the medical evidence did not " indicate that his blow caused the death of the deceased ". He was accordingly sentenced to undergo transportation for life. The three convicts appealed in the High Court of West Pakistan at Karachi and the learned Judges acquitted Isso and Hakimali, while maintaining the conviction and sentence of the accused Lain. The grounds for the acquittal of Isso whose case is not before us, may be stated immediately. He was found to be inimically disposed towards Abdul Latif, but as no lathi injury was observed and all the injuries on the body were hatchet injuries, doubt arose regarding the evidence of the eye‑witnesses, three in number, who had stated that Isso also gave blows to Abdul Latif. A further piece of evidence adduced against Isso was that upon a search of his house being made on the same day; viz. the 22nd September 1957, the Police found concealed in the folds of a quilt, a turban on which there were found stains of human blood. The learned Judges considered that in the absence of proof that this turban belonged to Isso, and the fact being that others lived in the house along with him, the discovery could not be used to connect Isso with the commission of the murder. Lalu moved this Court for special leave to appeal against his conviction and at the same time the State moved an appeal to have the acquittal of Hakimali set aside. Leave to appeal was granted in both cases on the following grounds: ‑ "The learned Judges held that the eye‑witnesses were inter ested and their evidence required corroboration in order to be believed". They found no corroboration as against Hakim Ali whom they acquitted on this ground. As against Lalu, sufficient corroboration was found by the learned Judges in the recovery of a blood‑stained garment from his possession. Lalu seeks special leave to appeal on the ground that the evidence as to this recovery; and the recovered garment itself, do not afford corroboration of the requisite kind, sufficient to sustain the conviction. The State seeks special leave to appeal against the acquittal of Hakimali, on the ground that the direct evidence was reliable, and was supported by the mention of Hakimali by name in the initial report, and the proof of injuries such as could be caused with the weapon he was alleged to be carrying. The adequacy of corroboration by material recoveries in a case of this kind has been dealt with by the Privy Council exercising the jurisdiction now vested in this Court, vide the case of Bhuboni Sahu 76 I A

147. It is clear that in a proper case, this Court may re‑appraise direct evidence, vide the case of Chainchal Singh 72 I A

270. Thus even if the, argument advanced on behalf of Lalu prevails, the conviction by the Courts below may yet be found sustainable upon revaluation of the direct evidence, which is the burden of the prayer, in the petition preferred by the State against Hakim Ali ". Consideration of the questions thus formulated has involved revaluation of the evidence: It is necessary first of all to make a brief statement of the background of the incident. This may be conveniently set out in the words of the learned Sessions Judge from whose judgment we reproduce the‑passage below: ‑ "Now on the point of motive, there is an overwhelming evidence of a longstanding dispute between the accused and their relatives on one side and of the deceased in his lifetime and of Pirbux, the father of the deceased, during his lifetime on the other. All this on account of trespass by accused and their relatives including Khush Muhammad, father of accused Lalu and Hakimali and others including the brother of one Sobdar by name and illegal occupation in survey numbers 411 and 33 belonging to the deceased and the Government on which the accused and their relatives are alleged to have raised construc tion without the permission of the owners. The evidence on this aspect of the case is that of Din Muhammad, the Tapedar Exh. 21 who prepared the sketch of the scene in this 'case, * * * * * * * * * * * * * * * * he has been examined as to his personal knowledge of the dispute between the parties. In my opinion this evidence is extremely important for purpose of the prosecution. * * * * He has testified to several applications, which he has produced as Exh. 22‑A, 22‑B, 22‑C, and Exh. 22‑D. * * * * * * * It is necessary to go into the details of these telling documents specially those made by the deceased and it is extremely unfortunate that the deceased apprehending harm to himself and to his property had appealed to the authorities for protec tion and action but as usual the machinery of the Government has been slow in moving against the illegal occupants of the land and property in dispute resulting in the brutal murder of the deceased. * * * * *. * * * *. * * Now the deceased in his application Exh. 15 dated 19th June 1957, has clearly indicated that Khush Muhammad, the father of accused Lalu and Hakimali together with Muhabat, the present accused Hakimali, his brother Sobdar, Sohbat brother of Mohabbat and others all Lohar Burdis by caste had con structed their houses in survey numbers in dispute, that he had tried to prevent them from doing so and had been attacked with lathis and hatchets that he had managed to escape from that murderous assault in the presence of witnesses. * * * *. In another application dated 25,th May 1956 to the Commis sioner of the Khairpur Division the deceased applied in the same strain adding that it had been decided after enquiry that the huts and bungalows erected by the accused and their rela tives had been illegally constructed, that they should be penalised for the same and that the penalty amount was ultimately recovered from them. No action had been taken to evict them from their illegal occupations and deceased stated quite definitely therein that he apprehended his own murder as the occupants had been threatening him with dire consequences and as he was a student studying in a college and had no guardian after the death of his father, he deserved due protec tion. In furtherance of this application, the deceased made a statement before the Supervising Tapedar supporting his allega tions made in the application to the Commissioner ". The point has not been treated at the same length in the judgment of the High Court, where the learned Judges contended themselves with saying that " there was some dispute between the father of the appellants, Lalu and Hakimali, and the deceased over the possession of some land ", and that the deceased had alleged that the accused persons had trespassed on his land and built over it. Abdul Latif deceased was a young man, aged about 20 years, and was a student in a college. He was clearly experiencing great difficulty, owing to violent opposition by the family of Khush Muhammad and others, in exercising his rights as landlord over the lands in village Bad left to him by his father. During the years 1956 and 1957, he had approached the authorities many times to get his property cleared of these trespassers, and had even filed security proceedings, on account of having been threatened with death. On the 22nd September 1957, he came to village Bed on a bicycle to inspect his lands, and went over them in the company of his estate agent or Kamdar, named Sultan (P. W. 1). After concluding the inspection, when Abdul Latif and Sultan were going together towards Shikarpur on the Shikarpur‑Khaman Road, the three accused persons allegedly emerged from an ambush and immediately challenged Abdul Latif, saying they would not spare him. Hakimali and Lalu gave hatchet blows and Isso gave lathi blows to Latif. Sultan's protests were unavailing, and he was ordered to stay away if he valued his life. At that time two persons, Kamal and Maluk, who also like Sultan gave evidence as eye‑witnesses, were in the vicinity with a cart‑load of grass, which they were bringing from village Bed. Abdul Latif died on the spot, and the assailants escaped; Sultan male a report of the occurrence at Suart Ganj Police Station in Shikarpur Town about a mile away at about 2.15 p.m. He gave the time of the occurrence as kachri manjhand, which might be described as " commencing midday " or " early afternoon ". He explained also that before coming to the Thana, he had reported the occurrence to Abdul Latif's maternal uncle, Wali Muhammad Soomro at his house: The Thanedar reached the spot of about 4 p.m. the same evening, arrested the three accused persons and made recoveries as follows, viz., from Isso the turban mentioned above, and from Lalu a washed shirt found inn his house, as well .as a shirt and a loin‑cloth which he was wearing. All these garments were sent to the Chemical Examiner, and human blood was reported to have been found on Isso's turban as stated above; but no blood was found on either of the two shirts. On the loin‑cloth blood was found but its origin could not be determined on account of disinteg ration. No weapons were recovered from any of these persons. In his judgment, the learned Sessions Judge made a very careful examination of all the facts and circumstances of the case. Referring to the interval before the making of the report, he has pointed out that Wali Muhammad, P. W. 5 stated that the Kamdar Sultan came to him at 1 o'clock to inform him of the murder, giving him the same details as appear in the first informa tion report, and also mentioning the names of witnesses, Kamal and Maluk. He rejected the argument of the defence that there had been delay in the making of the first information report and pointed out, that Sultan had first gone to the deceased's house, then conveyed the information to the deceased's uncle, and had then visited two other police stations before he came to the proper police station which had jurisdiction in the case. He observed as fallows: - " There is no question of false implication or of mistaken identity, and if it were that time was taken in lodging the first report for deliberations before implicating or naming the murderers, there is no reason for the omission of the names of Khush Muhammad and others who were also directly concerned` against the deceased". The mention of Khush Muhammad is significant. He was the person who had been taking the most prominent part in creating trouble for Abdul Latif in the management of his lands. In the examination of the ocular evidence which was very closely consistant as to the facts of the ambush and the attack, the learned Sessions Judge placed in the forefront of his discussion the fact that the Kamdar Sultan is related to the accused persons, whose fathers were his " Masates " which apparently means that they are related to him through his mother's sister. Sultan gave his caste as Lohar Burdi, which also is the caste of the three accused persons. He is a man aged 70 years, and has been work ing as Kamdar for Abdul Latif and his father before him for a period, of some 30 years. A very good reason why, in mention ing the names of .the actual murderers in the first information report, there should not have been any false implication of inno cent persons, lies in the fact that the reporter was a very senior member of the caste of the accused persons, being also nearly related to them and' however great his loyalty might be to his master, the deceased, and the latter's family, that would not be a reason inducing him to exaggerate the matter by the false implica tion of innocent persons, since the crime was being reported against his own near relations. In the judgment of the High Court, we find no mention whatsoever of the fact that Sultan is related to the accused persons and we consider it appropriately express our surprise that this should be so. The learned Judges have mentioned the connection of Sultan with the deceased. They have gone on immediately to state the following facts, which might be thought affect his attitude towards the accused persons: ‑ (1) that Khush Muhammad had purchased some land in front of Sultan's house which Sultan himself had wanted to buy. (2) that Hakimali's cattle used to pass through his lands and " when the cattle damaged his crop he used to complain to Hakimali "; and (3) that he used to accompany Abdul Latif whenever he went to Court in connection with the security proceedings he had commenced against the part3 of the accused persons. On a consideration of their intrinsic effect, we are clearly of the view that these matters are without influence as regards the credibility of Sultan. As Kamdar of the deceased, Abdul Latif, and being a responsible and respectable man of mature age resi dent in the village, it was entirely proper that he should accompany, Abdul Latif to the Court for hearings in the security proceedings. The mere fact of the land in front of Sultan's house which he wanted to buy having been purchased by Khush Muhammad seems to us to be no ground whatsoever for thinking that Sultan might possibly depose falsely against the sons of Khush Muhammad to implicate them in a case of murder. There is not the slightest indication that there had been any trouble between Sultan and Khush Muhammad on this account. As regards the allegation of damage to his lands by Hakimali's cattle, the state ment made by Sultan in cross examination was as follows: ‑ " Accused Hakim Ali owns 52 (ribs of land next to mine. His cattle have passage through my land. If his cattle damaged the crop I complained to Hakimali ". No implication appears in this simple and natural statement of any trouble having over arisen between Hakimali and Sultan on account of trespass by cattle. Indeed it goes to show a proper neighbourly disposition on the part of Sultan towards Hakimali that his attitude should be that in case of damage to crop by Hakimali's cattle, he would not complain to anyone else or to any authority but would raise the matter directly with Hakimali. Therefore we are clearly of the opinion that these questions in cross‑examination have no effect whatsoever in regard to the complete credibility of Sultan as a witness against the accused persons. They were, in our opinion, rightly ignored by the learned Sessions Judge. On the other, hand, we consider that in c omitting to note the relationship of Sultan with the accused persons, which had been prominently mentioned by the Sessions Judge, the learned Judges have ignored an aspect of the testimony of Sultan which was of the greatest importance for the evalua tion of his evidence. In discussing the evidence of Kamal, who is brother to the deceased's wife and Malook who was once the deceased's tonga -driver, the learned Sessions Judge has taken into consideration all the circumstances appearing from their statements. In holding that they were true eye‑witnesses, and that their evidence was true, he did not overlook the facts of their connection with the deceased. He considered that the ‑reasons which ‑they gave for their presence at the time of the incident were natural and true. In the High Court a different view was taken. After mentioning the connection of these two Witnesses with the deceased, the learned Judges' proceeded to state as a ‑matter of criticism applicable to the evidence of all the three eye‑witnesses, that no injury which might have been caused with a blunt weapon had been found on the person of Abdul Latif, that the possibility that no injury with a lathi was caused to the deceased could not be ruled out, and, therefore, by reason of this conflict appearing from the medical evidence, complete reliance could not be placed upon the statements of the eye witnesses. The learned Judges went on to observe that this evidence "therefore requires some corroboration before it could be accepted in order to uphold the conviction of the appellants". They then gave reasons, which have already been mentioned, for holding that there was a doubt in favour of Isso. With respect to Hakimali they said that apart from the direct evidence there was against him only the evidence of motive, which was not sufficient corroboration, and they therefore held that the case against Hakimali also was not free from doubt. But as regards the accused Lain, they took a different view. On the point of motive, they mentioned the fact of pending civil litigation between him and Latif as well as the security proceedings. They discussed the direct evidence again in the following terms: ‑ "So far as the ocular evidence is concerned it consists of Sultan, Maluk and Kamal. It appears from the judgment of the learned Sessions Judge that he was impressed by the testimony of these prosecution witnesses. The learned advocate Mr. Tufail did not contend before us that these witnesses were not present at the scene of offence. They have all stated that Lalu inflicted injuries on the person of the deceased". These observations might give rise to the view that the learned Judges were engaged in a fresh assessment of the evidence of the eye‑witnesses. They, however, proceeded immediately to state that they had already held that the direct evidence could not be accepted unless there was corroboration by other evidence. Such, corroboration they found in the case of Lalu in the recovery of the blood‑stained loin‑cloth from his person. They noted that Lalu had denied that this loin‑cloth had been taken from his person, and went on to observe that "no question was put to the Mashir Sher Muhammad in cross‑examination to show that the police had not recovered any bloodstained loin‑cloth from the person of the appellant". Now, the fact is that Sher Muhammad (P. W. 8) had never said that any cloth or garment was removed in his presence from the person of Lalu at all. His statement on the point of recoveries in the house of Lalu and Hakimali, was as follows: ‑ "Accused Lalu and Hakimali reside in one house. Neither of them were present at the time of the search. A shirt was secured from the joint house of Lalu and Hakimali. It appeared to have been washed: ‑A mashirnama was prepared. The mashirnama is now read over to me and I say that Lalu was present at the time of search I produce the mashirnama as Ex. 20". In the mashirnama (Ex. 20) there is mention of the removal of the shirt and the loin‑cloth from Lalu's person and it also appears to be signed by Sher Muhammad, but the fact remains that Sher Muhammad in his evidence did not depose to being a witness to the recovery of any clothes from Lalu's person and it is significant also that in his evidence he never stated that he had signed the mashirnama. The learned Judges then went on to mention that the Thanedar Ilahi Bux had spoken about the recovery of Lalu's shirt and loin‑cloth, and that he was not cross‑examined on the point, besides which there was no reason why he should depose falsely on the point. As to the circumstance that the Chemical Examiner had reported that the stains on the loin‑cloth was blood, whose origin could not be determined, since it was disintegrated, the learned Judges appear to have thought that the mere fact of its being bloodstained, whatever the origin of the blood might be, was a circumstance indicative of Lalu's participa tion in the murder of Abdul Latif. The evidence regarding the recovery of this loin‑cloth is clearly conflicting. But even if it were a good deal stronger than it is, the simple fact that the origin of the blood could not be determined is by itself sufficient for depriving this recovery of any evidentiary value whatsoever. The recovery was allegedly made within a few hours of the occurrence and disintegration through natural causes within so short a time was hardly likely to have taken place. Having regard to the conditions of life in villages, there would be nothing extraordinary about the presence of stains of blood of animals or birds on the clothes of agriculturists. We consider that the proof afforded by the Chemical Examiner's report in regard to the alleged loin‑cloth of Lalu is completely without effect in regard to the prosecution case against Lalu. But this does not enable us to view the conviction of Lalu in any other light than that appearing from the judgment of the learned Sessions Judge by whom he was convicted in the first instance. The participation of Lalu in the crime is proved beyond reasonable doubt not with the aid of any recovery from his person, but on the basis of direct evidence of‑unusually reliable character, supporting an initial report to the police made with promptness, and upon the fact that the crime was the natural culmination of a series of events constituting the background of the case. The absence of discovery of marks of lathi blows on the dead body is susceptible of a number of explanations, e.g., that where so many gaping incised wounds appeared to indicate the true cause of death, contusions or abrasions may have escaped notice, or, as the Sessions Judge suggested, that the site of a lathi blow may have been out open by a hatchet blow struck thereafter. The circumstance cannot be held sufficient to falsify the direct evidence, or even to render it subject to serious doubt. No further evidence was needed to establish a strong case upon the charge preferred against Lalu. He pleaded false implication and produced no evidence in his defence. We have no hesitation in holding that he was rightly convicted and we accordingly dismiss his appeal. Upon the view that we have taken as a result of our examina tion of the judgments delivered in respect of the appellant Lalu, upon the same evidence, it is clear that the appeal of the State against the acquittal of the accused Hakimali must succeed. Once the mention of the irrelevant blood‑stains on Lalu's alleged loin‑cloth is eliminated from the case, there remains no conceivable point of distinction between the cases against Hakimali and Lalu, respectively. The motive was exactly the same, and the previous attitude of the two accused persons, as appearing from the background evidence was exactly similar. The evidence to show the direct participation of Hakimali in the murder of Abdul Latif was precisely the same as that to show Lalu's participation. The proper administration of Justice in the case arising out of the murder of Abdul Latif requires judicial exercise in respect of Hakimali of the power entrusted to this Court by Article 163 of the late Constitution to make such orders, "as may be necessary for doing complete justice in any cause or matter pending" before the Supreme Court. This is the first case in which the necessity for setting aside an acquittal on a capital charge ordered by a High Court has arisen before this Court. We are conscious of the gravity of the proceeding. But having devoted our fullest care and considera tion to the case in its entirety, we can see no reason whatsoever that can prevent us from doing what we clearly see to be our duty, namely, when a charge of a crime is found to be clearly established by evidence of the most patent reliability, which remains entirely unrebutted and is unaffected by any plea in defence, to record our judicial opinion to that effect, whereby an acquittal there has been a serious failure of justice, and to make a consequential order of conviction. To do so without giving due weight to the opinion of the High Court would be clearly improper and in the present case, we have been at pains to give the greatest possible weight to the considerations which had induced the learned Judges in the High Court to make the order by which they acquitted Hakimali, while at the same time convicting Lalu. We find, speaking with due respect, that these considerations are not founded upon anything appearing in the true facts of the case or upon any valid reason or logic. We have also given proper weight to two further considerations, which always arise where the appeal is against an acquittal namely, (1) that a presumption of innocence, exists in favour of the accused which is certainly not weakened by the fact that he has been acquitted and, (2) that the accused has the right to the benefit of any doubt. And we may add, what is already sufficiently apparent from this judgment, and is indeed fundamental to the exercise of appellate jurisdiction in cases involving the reception of direct evidence, that we have given proper weight and consideration to the views of the trial Judge as regards the credibility of the witnesses, bearing in mind the advantage which he enjoyed of seeing and hearing those witnesses. Accordingly, we allow the appeal of the State against Hakimali, and setting aside the order of the High Court, acquitting Hakimali, we hereby make an order that he be convicted under section 302/34, Pakistan Penal Code, and that he be hanged by the neck till he be dead. A. H