1992 P Cr (PLP)

(i) Deceased Mst. Abida was found lying dead in the house of appellant. (ii) Extra-judicial confession of the appellant before Jalal (Exh.19). (iii) The appellant was found confused by Noor Muhammad (Exh.20), and Essa (Exh.21), after the incident. (iv) Motive.

8. Admittedly Mst. Abida was living with the appellant as his wife in the house where she was found dead. This factor, however, by itself is not sufficient to prove that the appellant and none else was the author of this crime. The conviction of an accused person can never be based on such evidence alone. Whenever, therefore, the Court has to deal with such evidence, it should start with rest of the evidence. It is only after it has formed its opinion with regard to the quality and effect of the said evidence that it may turn to this type of circumstantial evidence, which as indicated above is not by itself sufficient to base conviction. .

9. The case of the prosecution mainly hinges upon 164, Cr.P.C statements of Jalal (Exh.19), Noor Muhammad (Exh.20) and Essa (Exh.21). Out of these witnesses Noor Muhammad is reportedly dead and Essa has shifted to Hyderabad (Sindh), and his present whereabouts are not known. Likewise Jalal has also expired. The evidence of Ashique Hussain P.C. (P.W.9) and Muhammad Iqbal P.C. (C.W.1) in this behalf is self-explanatory. Ali Akbar Brohi, A.C.M. (P.W.6) had recorded the statements of these witnesses under section 164, Cr.P.C., in the presence of the appellant who was afforded an opportunity to cross-examine them. The prosecution has sought to place reliance upon these statements (Exh.19), (Exh.20), (Exh.21) in terms of section 265-J, Cr.P.C., which reads as follows:-- "The statement of a witness duly recorded under section 164, if it was made in presence of the accused and if he had notice of it and was given an opportunity of cross-examining .the witness, may, in the discretion of the Court, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872 (11 of 1872)."

10. The evidence which has come on record, however, does not indicate that the appellant had a prior notice of recording of 164, Cr.P.C., statements of the above witnesses. The learned Additional Sessions Judge has also accepted this position by making the following observations:-- "But it is a fact that there was no prior notice given to the accused to enable him to engage the advocate of his choice to defend him."

11. The requirements of section 265-J were considered in the case of Abdul Hakeem and another v. The State reported in P L D 1982 Kai. 975, by a Division Bench of this Court, wherein it was observed:-- "A reading of this section makes it plain that the statement should be recorded in the presence of the accused, the accused should have notice of the recording of such statements, and he should also be given an opportunity of cross-examining the witness. On the fulfilment of these conditions, the statement could be brought on record, within the discretion of the Court. Such discretion should be exercised if in the process of recording such statement sanctity attaches to it, as normally such statements are recorded only in cases involving capital sentences. The mere fact of the police officer stating that he had put the accused on notice would not be sufficient. Such notice should, be in writing, and should also state that he has a right to-cross-examine the witness. Normally in these circumstances, an accused knowing the peril in the process would attempt to engage an advocate and ask for copies of the police statements .in advance, so as to effectively cross-examine the witness. Non-compliance with the spirit underlying section 265-J exposes the statement to serious criticism. After all, if an accused is suddenly marched of to the Court and asked to cross-examine a witness, he cannot effectively exercise his right under the law. It is also a cardinal principle of law enshrined even in the Constitution that every person has a right to be defended by an advocate of his choice. In these circumstances, if no proper notice is given, failure of justice might inevitably result, and the Court has to be on caution. Applying these tests to the instant case, we find that no notice in writing was given to the appellants before recording the statements under section 164, Cr.P.C. and there is absence of mention even in the police diary, as, according to the Investigating Officer, he did not even mention this fact in the police diary. Admittedly, the accused were not represented, and therefore, the right of cross-examination had not been effectively exercised. The learned Additional Sessions Judge has admitted the statement under section 164, Cr.P.C. without adverting to this aspect of the case."

12. This view was followed in the case of Roshan v. The State reported in 1985 P Cr. L J 2312, wherein another Division Bench of this Court took the following view:-- "We first propose to deal with the evidence of three eye-witnesses. Hakim and Jummo have not supported the case and have been declared hostile. Their statements under section 164, Cr.P.C. were brought on the record under section 265-J of the Code of Criminal Procedure. These statements could be treated as substantive pieces of evidence provided such statements were recorded in the presence of the accused and accused is given notice and an opportunity of cross-examination. Admittedly, the accused was not represented, therefore, right of cross-examination had not been effectively exercised by him. Moreover, the accused had no notice of these statements. In these circumstances in our view statements under section 164, Cr.P.C. of Jummo and Hakim could not be treated as substantive piece of evidence. This point has been fully discussed in a case 6f Abdul Hakim and others v. The State reported in P L D 1982 Kar. 975 therefore, no reliance can be placed on the evidence of Hakim and Jummo to the extent of murder of Mst. Hoor Khatoon."

13. The same view was reiterated by a Division Bench of this Court in the case of Shadoo alias Shahzado v. The State reported in 1989 P Cr. L 1 1093.

14. In the face of such a clear pronouncements the learned Additional Sessions Judge has clearly erred in relying upon the statements of Jalal (Exh.19), Noor Muhammad (Exh.20), and Essa (Exh.21), who otherwise also inspire no confidence. Mal (Exh.19) has implicated the appellant in his 164, Cr.P.C. statement in the following words:-- "I do hereby state on oath that on 11-2-1985, I was going in night at about 11 p.m. after taking tea in Farman Hotel when this accused Rafique met me to whom I know, he was confused. On my inquiry the accused informed me that he has killed his wife by strangulating her and in this way he .has brought an end to daily dispute. I started thinking as to what he has stated. In the morning at about 7/8 a.m. it was known in the Mohalla that accused has strangulated his wife to death I then informed the Incharge of police station and he got my statement recorded."

15. The time of incident as disclosed in F.I.R. (Exh.8) is 3 a.m. which is in direct conflict with the statement made by Jalal (Exh.19), which makes it clear that the incident took place before 11 p.m. Likewise the statements made by Noor Muhammad (Exh.20) and Essa (Exh.21) simply suggest that the appellant was found confused. So even if it is accepted for arguments sake that the statements made by the above witnesses under section 164, Cr.P.C., were admissible under section 265-J, Cr.P.C. these witnesses are worthy of no credence.

16. The evidence on motive is also shaky and inconsistent. In F.I.R. (Exh.8) the complainant had alleged that deceased Mst. Abida visited her house against the wishes of appellant, which in fact resulted into this unfortunate incident. Mst. Hameeda (P.W.1), when examined in Court, however, came out with a different motive by stating as follows:-- "I do not know the cause of murder but I think that he (accused) has killed his wife at the instance of his first wife and sister."

17. All these factors when combined together do not prove the case of murder against the appellant and he cannot be adjudged guilty simply because Mst. Abida was found lying murdered in his house.

18. In the case of circumstantial evidence failure of one link destroys the entire chain. The warning which Baron Alderson gave in Reg v. Hedge, reported in (1938) 3 Lew 227, may be kept in view in placing reliance upon such evidence:-- "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."

19. Having regard to the above factual and legal position, I am satisfied G that the case against the appellant is not free from doubt. The benefit of doubt is, therefore, extended to him and he is acquitted from the charge. The appellant who is in custody be released forthwith, if not required in any other case. In the result the impugned judgment is set aside and the appeal is accepted.

20. By a short order, dated 28-4-19921 had allowed this appeal. These are the reasons for the said order. N.H.Q./M-1681/K Appeal allowed.