P L D 1956 Federal Court 171 (PLP)

MUHAMMAD MUNIR, C. J.‑

This appeal, by special leave, is by Adalat and Bahadur, who were sentenced to death by Sardar Ata Ullah Khan, Additional Sessions Judge, Gujrat, for the murder of Mst. Fazal Begum and whose appeal was dismissed by a Division Bench of the High Court of Lahore. The murdered woman belonged to Mouza Ganje but had been married to Sardar Khan of village Sukh Chain where she had been residing till the death of her husband which occurred about 2 months before her murder. Sardar Khan had a brother Akbar Khan who started quarreling with ' his brother's widow and accused her of immorality. Mst. Fazal Begum's husband had left some property, movable and immovable, and the allegation of the prosecution is that Akbar Khan wanted to drive away Mst. Fazal, Begum from her husband's house in order to usurp her property. Mst. Fazal Begam complained of Akbar Khan's conduct to her brother Hakim Ali who brought her from Sukh Chain to his own village Mouza Ganje. As Mst. Fazal Begum was not willing to be deprived of her property, she went to Gujrat" with a man also named Sardar Khan in order to complain against Akbar Khan's high handedness and to seek legal protection from the district authorities. On 14th June 1954, Sardar Khan and Mst. Fazal Begum caught a train at Gujrat and got down at ‑Railway Station Lalamusa where, as previously arranged, Hakim Ali was waiting for her with a mare in order to take her to Mouza Gunje. From Lalamusa, Sardar Khan went away to his own village with another man, and Mst. Fazal Begum with her infant daughter and Hakim Ali set out for Monza Gunje. Hakim Ali, who is a cripple completely, unable to walk, was riding the mare with Mst. Fazal Begum's child in front of him, while Mst. Fazal Begum was walking. When they reached near Chak garwani, a village only 1 miles away from Lalamusa, the appellants appeared from the west at a distance of 20 to 25 yards from Hakim Ali. Adalat Khan had a gun, while Bahadnr had a stick. They came nearer and Bahadur struck Mst. Fazal Begum with a stick and felled her on the ground. Adalat then brought the muzzle of his gun over the right side of her chest and fired and killed her instantaneously. After the murder Hakim Ali went to the Police Station at Lalamusa, leaving the dead body in the charge of some villagers. There he dictated to Mumtazali A. S. I. at 6‑45 p.m. a report narrating the circumstances in which his sister was done to death by the appellants. He alleged in that report that the murder was committed in front of him by the two appellants, that Bahadur first struck Fazal Begum on the forehead with a stick, that after she had fallen on the ground by the injuries thus caused Adalat fired his gun over her prostrate body hitting her above toe right side of the chest, that the culprits were chased by the villagers and that being a stranger to the locality he was unable to name the persons who had collected on the scene of the crime. The deceased woman's body was sent to Civil Hospital, Gujrat, where it was examined by Doctor Bashir Ahmad, Medical officer on 16th June 1954, at midday. Apart from some minor injuries the Doctor found two contused wounds on the head, one oil the left side of forehead and the other on the outer part of the right eye‑brow under cacti of which there was a depressed fracture of the skull. There was also a lacerated wound 2 '' x 2 '' x 6" on the upper part of the chest, 4" above tide right nipple, penetrating obliquely into the chest cavity. Margins of this wound were lacerated and blackened and its direction was downwards and to the left till it entered the chest cavity after fracturing the ribs. Three penetrating wounds were found on the lumbar region and these were the exit wounds of large pellets which had entered through the chest, their edges unlike the edges of the chest wound being everted. Two card board pieces were, taken out from the liver and another two from around the right kidney region. One of the swellings on the back was due to a large pellet which lay embedded in the musculature of the lumbar region. The death was due to gunshot injury of the right lung, heart and abdominal viscera. Apart from the formal evidence, 4 witnesses were produced by the prosecution in support of its case Hakim Ali (P. W. 9) claimed to be an eye‑witness, Sultan (P. W. 10) very near an eye‑witness, and Bahadur (P. W. 7) and Nizam Din (P. W. 8) deposed to having heard a confession from both the appellants. The learned Sessions Judge disbelieved the evidence of confession, but agreeing with the unanimous opinion of the assessors considered the evidence of Hakim Ali and Sultan as a safe basis for conviction. The same view of the evidence was taken in the High Court by both the learned Judges who heard the appeal. The appeal to this Court raises no question of law and leave to appeal was given only in view of some self‑contradictions that appeared in the evidence of the two important witnesses Hakim Ali and Sultan. From the manner in which these witnesses gave evidence the impression that the learned Additional Sessions Judge who tried the case and the learned Judges of the High Court who examined the evidence on appeal received was that for one reason or the other they had colluded with the appellants or their friends and had on certain important points made admissions in order to favour the appellants. Despite this dishonest attitude on the part of the witnesses, however, both the Courts felt convinced that the murder was committed by the appellants and this conviction, as expressly stated by them, was the result of the evidence in the case. Prima facie, therefore, there is as little ‑ reason to interfere with the conviction as there would have been to interfere with the verdict of a jury if the evidence with proper direction had been placed before them and they had believed it. The only question involved in this appeal, therefore, is whether the learned Judges of the High Court have in acting upon the evidence departed from any principle of law or any other well‑settled rule by which evidence is judged in such cases. In order to discover whether any sufficient reason for interference in this case exists or not, it is necessary to state what the evidence on the record was. Hakim Ali, being examined as the ninth witness for the prosecution, narrated precisely the same story as he had done in the First Information Report, including the allegation that he had fully identified the appellants at the time of the occurrence, except that he described the weapon used by Adalat as a rifle in one place and as a gun in another and gave a. different description of the manner in which the weapon was used by him. In the F. I. R. the witness had stated that before firing Adalat had brought the muzzle of the gun over the right side of the chest of the woman, whereas in his examination‑in‑chief he deposed that the muzzle was directed by this appellant towards the top of the back of her left shoulder. In cross‑examination, however, the witness made a series of attempts which were wholly irreconcilable with his statement in examination‑in -chief and which could not but convey to the Court the impression that the witness was out to help the appellants as far as he could. Thus having stated in examination‑in‑chief that he had fully identified both the appellants the witness stated that the culprits had masked their faces and that he had identified them merely from their sizes. As regards the weapon, he said that it was a rifle in which a bullet and not shot is used. He also admitted that he, was inimically disposed towards both the appellants and that this enmity was one of the reasons for his having mentioned them as the murderers. In view of the attitude adopted by the witness the public prosecutor requested the Court to permit him to cross‑examine the witness. The necessary permission being given, the public prosecutor confronted the witness with every important part of the story which he had told when making the report to the police and which was in direct conflict with his statement in Court. The main points brought out in the cross‑examination were that is the First Information Report the witness had stated that Bahadur had given several blows on the forehead of the deceased, that the weapon fired was a gun, that Adalat appellants had shot the deceased near the right breast, and that he had not stated there that he merely identified the culprits by their sizes. A further opportunity to defence counsel was given to cross- examine the witness who admitted that he had given a true account of the whole incident before the Committing Magis trate. We do not know what his statement before the Committing Magistrate was because neither the prosecution nor the defence counsel requested for its transfer to the record at the trial. Sultan (P. W. 10) stated in his examination‑in‑chief that after the firing he had seen the appellants running to the west of the village, that he had some other persons had chased them and that while Adalat had a gun Bahadur had a stick. In his cross‑examination by the counsel for the appellants, the witness was confronted with his statement before the Committing Magistrate where he had stated that he had seen Bahadur give two blows to the woman with a stick and that when she had fallen down. Adalat had fired at her. The witness denied having made that statement, though he admitted that before the appellants had run away from the scene he had seen Adalat bending over the body of the woman with his gun. As regards the identification of the culprits, he said that both the appellants had chaddars wound round their turbans but their faces were clearly visible. This witness has been con sidered by the High Court to be completely independent and though some witnesses say they did not see him on the scene of the murder there is no doubt that his statement was recorded by the police shortly after the crime. The manner in which the learned Additional Sessions Judge approached the evidence will be apparent from the following passages in his judgment :‑-- "Although we have found that Hakim Ali, is trying to help the accused that by itself would not prove that we must believe entirely what he stated in his report before the police. He has condemned himself by his own behaviour and we shall have in any case to receive his evidence with great caution. The only satisfaction that we have is due to the fact that at the earliest opportunity hardly two hours after the occurrence, he dictated a story before the police in which he had named the two accused as the culprits and had not mentioned even indirectly that he could have made a mistake about their identity. We have also found that he had really no reason to be so intensely inimical towards the accused as to save the real assailants and name them simply to gratify his revenge. We must, therefore, try to find out whether sufficient corroboration to the story that he told before in the examination‑in‑chief and in the F. I. R. exists or not. If it exists then there is no reason for us to suppose that the accused have been falsely involved but if we cannot get sufficient corroboration the benefit of doubt shall have to be given to the accused.". "Next we come to the evidence of Sultan, P. W.

10. It was stated that Mst. Sardar Begum who is the wife of the son of this witness was abducted by Fazal, son of Rehman. That after the abduction she was kept by Bahadur, accused for some time. That the witness went to Adalat accused in order to take his help in recovering the girl but that Adalat refused to do so. When asked about this matter the witness stated that Adalat was not helping Bahadur, accused, in retaining her. Later on when the question was persisted and it was suggested that both the accused are friends he replied that on account of their friendship Adalat may be helping Bahadur in this wrongful detention. It is obvious, therefore, that some sort of favourable reply was actually forced out of the mouth of this witness. The allegation that Sultan, P. W. on account of these hostilities is trying to falsely implicate the accused cannot be received because in spite of tightening his evidence against the accused he is actually making it weaker before us from that which he gave before the Committing Magis trate. Before that Officer he had stated that he had actually seen Mst. Fazal Begum and her brother coming from Lalamusa side and being attacked. Before us he has frankly stated that when he first saw towards the spot on hearing the gun fire he found Adalat, accused, with the gun bending a little and then both the accused running away. If this witness was really hostile towards the accused he could not be expected to make this favourable admission helping the defence. The witness has stated that although the accused had bound chaddars around their turbans their faces were entirely visible. He did not express any doubt about their identity." His conclusions he summed up as follows :‑ "Now, we come to the final stage in the discussion and have to find out whether it is proper to convict the accused for the murder of Mst. Fazal Begum under the facts stated above or not. The three assessors who assisted me in this trial were of the opinion that in spite of the tendency of Hakim Ali to help the defence there is sufficient material on the tile from which a complete satisfaction can be acquired that the two accused and no other committed the murder of Mst. Fazal Begum in the manner stated by the prosecution. After carefully considering the case, I have no hesitation in agreeing with them. Unfortunately the murder of a woman in this part of this Province is not considered a very important a0air. In most cases such a murder is easily compromised generally by the promise of the hand of a daughter or near relation of the accused to the son or the near relation of the complainant. Although we have no definite evidence whether such a compromise has taken place or not we can be quite sure that Hakim Ali is trying to injure the prosecution case as much as possible although at an earlier stage he was equally enthusiastic in condemning the two accused now standing their trial before us. It is highly insulting to give an impression to the prosecution witnesses that the fate of the accused is entirely in their hands. That in most cases it is so cannot be denied but there are cases in which it is possible to sift the truth from the falsehood and wherever it is possible the demand of justice requires that such a discrimination should be made and the guilt or innocence of the accused properly judged from the evidence proved to be correct. In the case before us the accused have, no doubt, been trying their best to win over the prosecution witnesses. Their efforts have indeed succeeded to an appreciable extent but it would not be fair to the cause of justice to let the accused reap at reward for interfering with its course. The murder of Mst. Fazal Begum was unprovocated and committed in a most cruel manner. Adalat and Bahadur are admittedly friends of each other and constantly associate with each other. If they were not the real culprits we would not expect their names to be inserted on suspicion." "From what has been stated above I feel convinced that Hakim Ali actually saw the two accused committing the murder of Mst. Fazal Begum and that immediately after the murder these two accused were seen armed as alleged by at least three persons who have come before us to speak about it. This leaves no doubt in my mind that the accused are guilty of having made an attack upon Mst. Fazal Begum with the intention of murdering her. Each of the accused, therefore, is responsible for the act of the other." In the High Court, the evidence of these witnesses was subjected to a more critical examination, and every point, whether it arose from an apparent self contradiction or an admission in favour of the appellants, was considered and disposed of. The learned Judges thought that the evidence of witnesses has to be judged in the light of the circumstances of each case, that no principle universally applicable to such cases exists and that what has to be seen is whether the evidence considered as a whole and bearing in mind the criticism to which it is open produces in the mind of the Judge who has to take a decision in a grave matter like a trial for murder such a conviction as would m errant him, as a of under man, to convict without any reasonable chance of error Stating this to be the position they thus stated their conclusions :‑ "Bearing the above principle in view, we proceed to discuss the evidence of Hakim Ali P. W. in order to see whether his statement in the examination‑in‑chief can be relied upon to support a conviction in this case. Akbar Khan (P. W. 6), a formal witness in the case, on whose statement the learned counsel for the defence places great reliance, has admitted in unequivocal terms that Hakim Ali P. W. was present at the spot when the murder took place. He has further admitted that he was all alone at that time. There is, thus, no doubt that Hakim is an eye witness of the occurrence and there was none present at the spot to suggest to him that the present appellants should be falsely implicated in the case. There is also no doubt that Hakim Ali lodged the first information report within half an hour of the occurrence at the Police Station, Lalamusa, in which he implicated both the appellants by name and gave complete details of the occurrence which he could not have been able to furnish unless in fact he saw the same. We further notice that the details with regard to the number of the assailants, the locale of the injuries and the nature of the weapons with which they were inflicted are completely corroborated by the medical evidence. Unless the man had seen this occurrence he could not have given such accurate details in the first information report even after having very carefully inspected the body of the deceased after the murder. Hakim Ali P. W. did not give the name of any of the persons belonging to village Chak Sarwani who had assembled on the spot in the first information report. We have no doubt that this is the conduct of an honest man. It, however, further suggests that if he had not identified the culprits on the spot, he would not have hesitated in that case as well to make a statement to that effect in the first Information report and merely left it to the police to find out the true culprits. We have been at a loss to understand why the name of Bahadur, who is a Kashmiri by caste and has nothing to do with Akbar Khan, should have been included among the miscreants. The interest of Adalat Khan appellant in the murder is also more remote than that of Akbar Khan himself. It is, therefore, more than remark able that although Hakim Ali was implicating persons purely on conjectural basis, yet his imagination never travelled in the direction of Akbar Khan himself. The omission of the name of Akbar Khan from the first information report clearly suggests that at the time when the first information report was being made, the witness was making an honest statement and had undoubtedly seen the occurrence. We will not enter into the realms of conjectures, and try to give our own reasons for Hakim Ali's present attitude in the case. We are, however, quite certain that him admissions in cross‑examination are false and should be completely eliminated from consideration and that his statement in his examination‑in‑chief is true. Besides the inherent circumstances to which we have alluded, there is yet another circumstance which justified the conclusion at which we have arrived. This circumstance is furnished by the statement of Sultan P. W. who saw the appellants running away from the scene of the occurrence immediately after the murder, being hotly pursued by a number of villagers belonging to Chak Sarwani. This witness not only corroborates Hakim Ali on the silent points of this story but completely negatives his assertion that the faces of the appellants were not visible to him and that he had implicated them in the first information report on the basis of a surmise. We have already noted above that this witness had only spoken half the truth and had also resiled from his previous position of an eye‑witness. It is, however, our considered opinion that he is a com pletely independent witness and that the evidence with regard to the conduct of the appellants immediately after the murder is worthy of credence. The two formal witnesses, who were produced to prove a formal document in the case, have tried to exclude his presence from the spot, but their evidence cannot have that weight which it could have had if they had been witnesses for the prosecution as to the material facts of the case. Moreover, in view of an attempt on the part of practically all the material prosecution witnesses to help the appellants, we do not think that these two witnesses have spoken the truth in the matter of Sultan P. W.'s absence from the scene of occurrence." "For the above reason we think it absolutely safe to uphold the conviction of the appellants for the murder of Mst. Fazal Begum." This being the position, the question to be considered is whether in arriving at their conclusions on the basis of the evidence on record the learned Judges of the High Court have departed from any general principle which governs the appreciation of evidence. The present is not a case of no evidence nor can it be said that evidence as to any particular ingredient of the offence is lacking. Of the two witnesses, neither Hakim Ali nor Sultan answers to the description of a witness whose evidence requires corroboration as a matter of law. After a thorough scrutiny of the evidence what has' been held is that certain admissions made by the witnesses or self‑contradictions in which they involve themselves are false and deliberate, which do not at all affect Hakim Ali's statement in his examination‑in‑chief that lie saw both the appellants commit the murder and that he fully identified them. The evidence does not at all give the impression that either Hakim Ali or Sultan has implicated the appellants with any dishonest motive or merely on suspicion. Thus the case presents no such feature as induces this Court to interfere with the course of criminal justice. Even if we were to judge the evidence ourselves. I have not the slightest doubt that it proves beyond all reasonable doubt that both the appellants are guilty of the murder charged. The first and the foremost point to be considered is whether Hakim Ali saw the murder and whether the murderers were known to him. Hakim Ali's presence is not disputed by the defence, the reason for it being that this man who cannot walk made the report within an hour or so of the occurrence and it has not even been suggested that Fazal Begum was alone when she was murdered, and that on the identity of the murdered woman having been ascertained the villagers who collected at the scene sent for Hakim Ali from Mouza Gunje and he merely on suspicion or because of some enmity with the appellants denounced them before the police as the murderers of his sister, thereby for ever excluding the possibility of the real murderers being punished for the crime. No man on bare suspicion will charge another with murder in the manner in which Hakim Ali charged the appellants and if an enemy was intended to be falsely involved the obvious choice was Akbar Khan and not his brother‑in- law and his friend against whom Hakim Ali had no grievance whatsoever. Even Akbar Khan (P.W. 6) who, like the other witnesses, has succumbed to some temptation or is subject to some other influence states that Hakim Ali was found present at the scene immediately after the murder. In the ordinary course, Mst. Fazal Begum would not be alone on her return journey to the village because there being a mare in the house naturally arrangements for her transport to Mouza Gunje would be made by her brother. If, therefore, there is one fact established beyond any doubt in the case, it is the presence of Hakim Ali at the time of the murder. If Hakim Ali saw the murder, he would certainly be able to identify the murderers because there being no suggestion :of any robbery, nor of an offended paramour committing the murder, the murderers must have been known to Mst. Fazal Begum, and accordingly, to her brother, who was fully conversant with the affairs of his sister, And if the criminals were known to Hakim all he would certainly mention them, as he did, in the First Information Report which was made as promptly as possible. The two appellants were not only mentioned in That report but are also alleged by him in his evidence in Court as the authors of the crime, with the further assertion in the examination‑in‑chief that he had fully Identified both of them, Akbar Khan P. W, 6's allegation in the cross‑examination that on his inquiry Hakim Ali told him that he did not know who had killed the deceased is definitely false because if the murderers were not known to Hakim Ali he could not have named them in the First Information Report which was made within only an hour or so of the murder. The defects from which the evidence of this witness suffers are, first that in his cross‑examination he stated that he had identified the culprits merely by their sizes and, second, that even in his examination‑in‑chief the manner in which he described the fatal gun‑shot injury to have been inflicted on' the deceased is incompatible with the medical evidence. As regards the first, there can be no question that the admission in the cross‑examination is false and does not, in any way, affect his confident statement in his examination- in‑chief that he had fully identified both the appellants. If the fact that enabled the witness to identify the culprits was merely their sizes he could certainly not have described them in the manner in which he did in the First Information Report because a man has first to go out of mind in order to charge a man with murder merely because he is of a normal human size. Further, this is the first case in my experience where a witness has dared to ask the Court to accept his evidence as regards the identity of a murderer merely by reason of the size. As regards the manner in which the firearm was used the witness was confronted with his statement in the First Information Report where he had given a description which in every particular was borne out by the post mortem exami nation that was performed two days later. Having graphically described in the First Information Report the manner in which his sister was done to death, it is impossible that later the witness should give a completely different description because he had either not seen the murder, which hypothesis has already been excluded, or because forgetful as lying witnesses are he was unable to recollect bow he had lied in that Report. The learned Judges have given good reasons fog the finding that both these admissions had been made by Hakim Ali dishonestly and that they are untrue, and in any judgment, no other opinion is possible in the circumstances. The learned Sessions Judge and the learned Judges of the High Court have adverted to the terms of the First Informa tion Report in which Hakim Ali had described the occurrence and to the subsequent corroboration of that report by the result of the medical examination. By referring to the Report in that manner they have not at all used it as a piece of sub stantive evidence. In fact, that document has been used, at least‑in one material respect, in order to contradict Hakim Ali's statement in Court that the weapon used was a rifle and that the deceased was shot with it in the back. In law a prosecutor is entitled, of course with the permission of the Court, to cross‑examine a prosecution witness with reference to his previous statements, and it does not, and cannot follow from this that by so doing he entitely gives over the witness so as not to be able to rely on any portion of his evidence. A First Information Report is not ail exception to this rule because a report being no more than a previous statement, if the maker of it is examined in Court it can be used not only by the defence for the purpose of contradicting him but also by prosecution for the purpose of corroborating and, with the permission of the Court, for the purpose of contradicting him. It is true that the portion by which the witness contradicted by the prosecution cannot be treated as sub stantive evidence in the case, but there is no bar to its being used to support the argument that a certain statement in the deposition of a with. I examination in‑chief is not true. In my opinion, therefore, the approach to the evidence in this case was right both in the High Court and the Court of Session, and no error of law or any general principle by which evidence is to be judged has been committed in this case. There is now only one point which remains to be con sidered. Apart from the question whether a Court should or should not accept the evidence of a witness, it has also to consider the preliminary question as to what the witness intends to say. It has been contended by the learned counsel for the appellants that taken as a whole Hakim Ali's deposi tion should be taken to mean that in his examination he named the two appellants as the murderers of Mst. Fazal Begum because the criminals, whoever they were, were of the same sizes as the two appellant. I do not think this is a correct construction to be put on the deposition of Hakim Ali because while in his examination‑in‑chief he said that the appellants had come quite near him, so near that while he saw one of them striking the woman on the forehead with a stick and the other bringing the muzzle of his gun to the top of the back of her left shoulder, and had fully identified them, in cross‑examination he said that his only warrant for naming the two appellants was their sizes. The two statements were wholly irreconcilable and could not be accepted together. Either the one or the other had to be rejected. Of course the Court could, but for different reasons, reject both. It was therefore quite permissible for the public prosecutor to show by drawing the attention of the witness to his statement in the First Information Report that while dictating that report he had not only not mentioned that he had identified the culprits by their sizes but on the contrary had given such a detailed description of the crime as he could not have given if he had identified them merely by their sizes. There is thus no question of the First Information Report having been used in this case as substantive evidence. I am, therefore, of the view, much to my regret because I have the misfortune to differ from two of my brothers, that the opinion formed by the trial Judge and the assessors who heard the evidence and the learned Judges of the High Court who sifted that evidence in appeal, was correct, and that it is impossible to enunciate any rule or principle by which their decision may be overruled. Generalizations relating to the appreciation of evidence are not at all rules of law, and if they were ever to be treated as such, the result, in ray humble opinion, would chaos and would deprive Judges of the lower Courts who have to decide on conflicting evidence, of that freedom of reasoning and action which is the first requisite of a judicial investigation. If we were to say that, however definite the evidence of a witness in examination‑in‑chief may be, it must be read subject to all the qualifications, however dishonest, which a witness introduces is his cross‑examination, we would be paving the way for miscarriage of justice on a large scale, and encouraging the accused persons in this country and their relatives to purchase 'from the prosecution witnesses an admission in their cross‑examination that when in their examination‑in‑chief or reports to the police they charged certain persons with the commission or murder their only justification for naming the accused was the sizes of the miscreants. In my opinion, the judgment of the High Court was right and ho reason of the kind that prompts this Court to interfere in criminal cases exists. I would, therefore, dismiss the appeal because it seems to me that interference with the judgment of the High Court in a case like this can only be justified on a general principle and that general principle which, I must confess I have not been able to discover, can only be in the form of a generalization relating to the appreciation of criminal justice than the enunciation of generalizations which, coming as they do from this Court, are bound to be treated by the lower Courts as inflexible standards to judge evidence. For these reasons, I have no hesitation in dismissing the appeal. AKRAM, J.‑

I agree. The crucial question in the case seems to be whether one part of the testimony of a witness can be accepted in preference to the other part when the two parts happen to be not reconcilable and rather conflict ing and, contradictory with each other. In such a case, I think; it is open to a Court of fact either to reject 'the whole of the"' evidence of the witness as untrustworthy or to rely, upon the portion which in its view fits best with the probabilities and the facts and circumstances present in the case, for in most cases proof of improper influence or induce‑I merit cannot be available and it is prudence only rather than the record of the case to which one is to turn for aid as the last resort. Such a course, in my opinion, cannot be regarded as assuming unproved facts ox as attaching conjectural proba tive value to the portion of the statement relied upon. The matter, to my mind rests largely on the judicial discretion of the Court and no hard and fast rule can be laid down in respect to it. In the present case both the Courts below as well as the assessors have come to a concurrent finding. I am, there fore, reluctant to interfere with their unanimous decision on a question of fact while exercising our restricted powers in criminal matters. SHAHABUDDIN, J.‑

This is an appeal by special, leave from the judgment of the High Court of West Pakistan, Lahore, by which the convictions under section 302/34, P. P. C. and the sentences of death imposed on the appellants Adalat and Bahadur were confirmed and their appeal was dismissed. The case for the prosecution was to the following effect. Ma. Fazal Begum in respect of whose murder the appellants have been convicted was brought away by her brother P. W. 9 to his house in village Gunje as the relations between her and her deceased husband's brother Akbar Khan had become strained. Akbar Khan wanted to take possession of the land left to her by her husband. He also suspected her of being intimate with one Anwar, and she apprehended danger to her life. Appellant Adalat is the cousin of this Akbar Khan. A day before the incident in question the deceased Mst. Fazal Begum left for Gujrat with one Sardara in order to file a petition before the Superintendent of Police for starting security proceedings against Akbar Khan, and on the day of the murder i.e., 14th June 1954, P. W. 9 went to the tonga stand at Lalamusa in order to receive his sister and Sardara as they had informed him that they would be coming back about that time. After they arrived, Sardara went to his village while P. W. 9 and the deceased with her daughter aged about three years left for P. W. 9's village. P. W. 9 being lame rode on a mare with the child while the deceased proceeded on foot. On the way when they were within about 100 karams to the north of the abadi of Chak Sarwani the appellants appeared all of a sudden, the first appellant Adalat armed with a gun and the second appellant Bahadur with a sofa. Bahadur hit the deceased on the head with his sota as a result of which she fell down and immediately thereafter Adalat shot her in the chest. The appellants then ran away, P. W.9 proceeded to the Police Station Lalamusa one arid a half miles from the place of occurrence and lodged at 6‑45 p.m. the First Information which contains these details. According to the First Information Report the occurrence took place at honi digar nal which is translated by the learned advocate for the appellants as early digarwela. The learned Judges however have held that this report was made practi cally within half an hour of the occurrence but the Sessions Judge estimated the interval as about two hours. This version of the prosecution was deposed to by P. W. 9 the first informant, and the sole eye‑witness, in his examina tion‑in‑chief except with regard to the weapon used by Adalat and the seat of the gunshot injury. He said that Adalat was armed with a rifle though later on he referred to his weapon as a gun. As regards the gunshot injury on the deceased. P. W. 9 stated that it was inflicted on the back of the shoulder while according td the medical evidence the entrance wound was in the chest. In the cross‑examination however P. W. 9 demolished the effect of what he had stated in the examination‑in‑chief by saying that at the time of the occurrence both the appellants had covered their faces and only their eyes were visible, that neither of them uttered a single word, but that it was from their stature that he inferred that one of them was Adalat Khan and the other Bahadur. He also said in his cross‑examination that he gave the names of these appellants as culprits because of the enmity which existed between himself and Adalat accused and Bahadur was a friend of Adalat. He further stated that a rifle and not a gun with shots was used and that Bahadur hit the deceased on the back of the neck while the injuries were in fact on the forehead. P. W. 6 stated that lie heard a gun fire when he was working at his well at a distance of about 120 yards from the scene of occurrence and on reaching that spot he found P. W. 9 standing near the deceased's body and that he the witness stayed there to guard it till the police arrived and thereafter was present during the inquest and signed that report. In his cross‑examination he added that on his enquiring of P. W. 9 as to the occurrence he said that he did not know who had killed the deceased. He also stated that he knew P. W. 10 that the latter's daughter‑in‑law had been abducted in the previous winter and Adalat appellant was suspected in that connection, that P. W. 10 took him to Adalat to induce him to restore to him his daughter‑in‑law but that Adalat declined to do so and P. W. 10 threatened to take revenge against Adalat. He added that when he went to the scene of offence he did not see P. W. 10 there P. W. 4 who was present during the investigation and the inquest stated in cross‑examination that lie did not see P. W. 10 during the time he (P. W. 4) was with the police. The version of P. Ws. 7 and 8 was that the appellants came armed to a well near which the witnesses were present and on their questioning them they (the appellants) said that they had already murdered the deceased and they were going to murder Anwar. P. W. 10 deposed that at niki digarwela while he was going towards his land he heard a gun fire and then saw the appellants going towards the west of his village. He tried to chase them but gave up the pursuit as he was old. In cross‑examination he added that he saw these appellants 'only when they were running. He went to the scene of occurrence but did not get near the deceased as women had gathered near the corpse. Before the Committing Magistrate he had stated that he saw the appellants injuring the deceased and that hearing the noise five persons named by him came on the scene. But at the trial he denied having made those statements and confined himself to having seen the appellants running away. His earlier version however was not brought on record. In cross‑examination he admitted that his daughter‑in‑law who was abducted by one Fazal was kept with appellant Bahadur, and though he denied that he approached Adalat to help him in recovering his daughter‑in‑law or that Adalat helped Bahadur in detaining her, he added that he had a suspicion that both the appellants were concerned in her detention. The appellants stated that they were falsely implicated. Adalat denied that he was related to Akbar Khan. No witnesses were examined for the defence. The learned Judges of the High Court were not impressed with the evidence of P. Ws. 7 and 8 and therefore kept it out of consideration. As regards the evidence of P. W.9 the only eye‑witness, they rejected the contention of the defence that the evidence should be discarded wholly and in this connection they relied on the decision of the Lahore High Court in Ghulam Muhammad and others v. Crown (P L D 1951 Lah. 66) where it was observed that perjury on a material point by itself was not sufficient reason to reject that portion of the evidence which appears to be true and the contention of the defence in that case that since it was established that witnesses bad involved at least two men who could not have participated in the murders, therefore the evidence against the other accused must for that reason alone be not accepted was repelled. The learned Judges in the present case then went on to observe that bearing this principle in view they should proceed to discuss the evidence of P. W. 9 and after a discussion they came to the conclusion that his version in the examination‑in‑chief was true and the admissions in his cross‑examination were false and that the evidence of P. W. 10 corroborated the salient points of the version of P. W. 9 in examination‑in‑chief. They took the view that P. W. 10 though he had spoken half truth and resiled from his previous position of eye‑witness, was a "completely independent witness". As regards the statement of P. W. 6 that he did not see P. W. 10 at the scene of occurrence and that of P. W. 4 that during the time he was with the police in connection with the investigation he did not see P. W. 10, the learned Judges observed that these two witnesses were only formal witnesses and their evidence could therefore not have that weight which it could have had, had they been witnesses for the material facts of the case and that in view of an attempt on the part of practically all the material prosecution witnesses to help the appellants they did not think that these two witnesses have spoken the truth in the matter of Sultan's absence from the scene of occurrence. The inherent circumstances relied on by the learned Judges were that P. W. 9 gave the first information within half an hour of the occurrence without having an opportunity of consulting others, that the details regarding the weapon used and the situation of the injuries which the medical evidence confirms as well as the names and number of assailants shows that P. W. 9 must have seen the occurrence as otherwise he could not have furnished those particulars and that had he not seen the appellants commit the crime he would have implicated Akbar Khan and in any case he had no motive to falsely implicate Bahadur appellant. It was contended on behalf of the appellants that the evidence of P. W. 9. read as a whole clearly indicated that he was not a witness on whom any reliance could be placed and that whatever the reason for his going back on the F. I. R. there was no doubt that he was basically dishonest and that therefore the learned Judges were not justified in relying on a portion of his evidence. The principle laid down in the above mentioned Lahore decision, it was argued, did not apply to the facts of this case. Referring to the evidence of P. W. 6 it was contended that the learned Judges while believing this witness's version that when he went to the scene he saw P. W. 9 there, disbelieved the same witness when he said that P. W. 9 told him that he did not know who had committed the murder without giving any reasons but merely on the assumption that that part of P. W. 6's evidence was given with a view to help the accused. As regards the circumstances the argument was that the interval between niki digarwela and 6‑45 p.m. was longer than half an hour and sufficient to admit of fabrication and finally it was said that there was no sufficient corroboration as P. W. 10 was not a disinterested witness. There is considerable force in these contentions and it cannot be said that the prosecution version has been established beyond reasonable doubt. It is no doubt true that a witness need not be disbelieved merely because a part of his version is false and that was what the learned Judges in the above mentioned Lahore decision laid down. But in the present case it is not really a question of falsus in uno falsus in omnibus. The question is whether a witness can safely be believed to have recognised the assailants when having said in the examination‑in‑chief that he saw the appellants clearly, he added in cross‑examination that they had muffled their faces and it was by their stature that he recognised them. Ac indicated already even his version in the examination‑in‑chief regarding the weapon used by Adalat and the situation of the gunshot injury on the deceased conflicts with the medical opinion. It is not therefore correct to say that the version in the examination‑in‑chief is wholly true. Whatever the reason for this witness going back on what he had stated in the F. I. R., it is clear that he had that reason even while deposing in the examination- in‑chief as otherwise his having changed the seat of the gunshot injury cannot be explained, and when suggestions followed in cross‑examination he accepted them. There can thus be no doubt that he is basically dishonest and that he gave evidence in this case with a motive other than stating the truth as far as it was in his knowledge. It was observed by this Court in Qutba v. Crown (P L D 1954 F C 197 at 202) that any such indication on the part of a witness throws a doubt on his statement which must go to the benefit of the accused unless its resolution is possible with reference to other credible evidence or established circumstances, and not on mere assumptions regarding the motives by which the witness might have been guided in making variant statements. In the present case the doubt that naturally arises as to the evidence of this sole eye‑witness cannot be supposed to have been resolved satisfactorily on the assumption that he was gained over by the appellants, for which we have not been shown any support in the evidence on record. As regards the evidence of P. W. 10 which has been regarded by the learned Judges as corroborating the salient features of P. W. 9's version in examination‑in‑chief it suffers from the same defect as the evidence of P. W. 9, because the cross‑examination of P. W. 10 discloses that he stated before the Committing Magistrate that he had seen the actual occurrence while his evidence in examination‑in‑chief at the trial was that he heard the gunfire and, thereafter saw the appellants running away. In his cross‑examination he added that he did not, see the appellants at the time of gunfire or before but only when they were running. The learned Judges have observed that this witness had spoken half the truth and resiled from the position of an eye‑witness. They however regarded him as completely disinterested but I find on the record that this can only be said in ignorance of the clear statement of P. W. 6 on the point which is even supported by an admission of P. W. 10 himself that he suspected both the appellants in respect of the detention of his daughter‑in‑law who had been abducted. As regards the circumstance that the report was made by P. W. 9 soon after the occurrence it seems to me that according to the evidence the estimate of the interval between the occurrence and the report made by the trial Court, namely, about two hours, is nearer the mark than the finding of the learned Judges that the report was made within half an hour. That being so, it cannot be said with certitude that P. W. 9 who had a mare to go to the police station which was only one and a half miles away did not have sufficient time for consultation and fabrication before lodging the first information. It is true that according to P. W. 6 there was none at the scene except P. W. 9 but from that alone ‑ it cannot be said with certainty that there was no suggestion from others before he went to the police station. He had to pass through the village and as already observed there was sufficient time for consultation. However the statement of P. W. 6 that P. W. 9 told him that he did not know who had killed the deceased strengthens the already existing doubt with regard to the version of P. W. 9, but this evidence of P. W.6 was rejected on a mere surmise that he gave it in his zeal to damage the case for the prosecution. In fact such an assumption has been made in respect of all those statements appearing in the, evidence which go against the prosecution. One of the fundamental principles of the criminal law as at present administered is that the benefit of the doubt arising on any material point must be given to the accused person. It is clear to me that this principle has been violated in the treatment of the evidence in the present case by the High Court. I cannot be sure that, if the right principle had been adopted, the conclusion of the learned Judge would have been the same and I would accordingly allow this appeal and acquit the appellants. It only remains for me to express my sincere regret at my inability to agree with the view of the case which has commended itself to my Lord the Chief Justice and my learned brother Akram. MUHAMMAD SHARIF, J.‑

I agree with my brother Shahabuddin, J. that the appeal be allowed. As the opinions in this case are equally divided, we are agreed that the judgment of the High Court shall be main tained and we direct accordingly. A.H. Appeal dismissed.