P L D 1953 Federal Court 214 (PLP)

Two witnesses Barkat, P. W. 3 and Siraj Din P. W. 4 of Kanwanwali Sikhan have deposed to the discovery of the body, and a report of the discovery was made at the rhana by Barkat, containing the significant statement that the head which was found was "freshly severed". Barkat admitted having made the report but was not questioned regarding the appearance of the severed head at the trial. In the absence of such question ing, or any expert evidence on the point, it is not possible to assess the effect of this circumstance upon the case for the prosecution that the murder was committed some 24 hours prior to the discovery. The Doctor, however, declared his opinion that the time which had elapsed between the death and the post‑mortem examination which he held on the 20th Feb ruary 1950 at 12‑30 p.m , was "about three days". The point appears to have escaped the notice of both the Courts below and it seems necessary to observe that the consequence is that the interval which elapsed between Jamal Din being last seen alive, and his death is left undetermined. In cases which like the present rest entirely on circumstantial evidence it is of the utmost importance that such a circumstance should be ascertained with minute care, before any conclusion or inference adverse to the accused person is drawn. For, while the fact of an accused person being the only person in the company of the deceased within a very short time of his death may be almost conclusive, in the absence of explanation from the accused, for holding him to be responsible for the death, should it have been the result of violence, prolongation of the interval generally tends to weaken the inference very greatly. In certain circum stances, as much as an hour's extension may suffice to avoid even the duty of furnishing an explanation. This is the more so if there be no reason shown which would oblige the two men to remain in each other's company. In the present case, the Courts below might well have considered, with regard to the last‑mentioned matter, the disparity between the positions of Jamal Din and Fazal Elahi, and that on the previous night Jamal Din had brushed aside Fazal Elahi's offer of a companion on his journey to Nankana. Two witnesses were called to depose to the presence of Fazal Elahi, and Fazal Elahi alone, in the company of the de ceased Jamal Din, at about mid‑day on the 17th February 1950. Only one of these was examined at the trial, namely, Feroz Din, P. W. 22, a cultivator of Kanwanwali. The other witness was one Sher Muhammad, a mocha of Chak No. 179 who made a short statement in the committing Court, but could not be pro duced at the trial because his whereabouts were unknown. Both of these witnesses have been relied upon by the learned Judges of the High Court as persons who "encountered the appellant in the company of the deceased when he was last seen alive". One ground advanced by the learned Judges for believing these witnesses is that they had no motive to perjure themselves in a murder case, but that factor by itself cannot avail to give their evidence any higher value than it possesses intrinsically, as a means of connecting the accused with the commission of the murder of Jamal Din. A simple perusal of Sher Muhammad's statement makes it clear that his evidence is of no value for this purpose. Exactness of dates was not to be expected from a witness who seems to earn his living as an itinerant labourer, and only rarely visits his family in Chak No.

179. When he first appeared before the police, to make a state ment in connection with this case, it was already about 21 months after his alleged encounter with Fazal Elahi and Jamal Din, and it is significant that the record does not indicate how the police became aware that he could give this evidence. Apart from this, although the witness stated that he met the two men on the way to Nankana from which place he was himself returning at about mid‑day, there is no indication of the distance of the scene of this encounter from the scene of the murder nor is it possible on the facts appearing in the statement to fix even the day of the encounter in relation to the day of the murder. For Slier Nuhamm4d'$ statement does not show that he had ever heard of Jamal Din's murder. His statement that Jamal Din questioned him whether the police who had gone to his village in an excise case had gone back, and that he replied that he did not know, and had not seen the police in his village, has the appearance of absurdity, if it be believed that Jamal Din, himself lambardar of Chak No. 179, had only left his village that very morning. Feroz Din's evidence is slightly more consistent but never theless contains too many defects and gaps to serve as the basis of any inference that after going only a short distance from the place where he encountered the two men, Fazal Elahi murdered Jamal Din and left his body in the state already described. Feroz Din was in his field at a distance of 5 squares to the south of Kanwanwali village, (which is approximately the same location as that of the body given by Barkat, P. W. 3) when he met the two men, but he says that they were walking from east to west, that is to say, going from the Nankana side to Naude and the waste land where the body was found com menced 3 squares, i.e., about 1,000 yards away from his field. Feroz Din knew Jamal Din, but did not know his companion by name although he had seen him before. According to his statement Jamal Din himself mentioned his companion's name as Fazal Elahi, and said that Fazal Elahi had brought him away from the road on the pretext that the tehsildar was camping in Kanwanwali in connection with the land revenue collections and a liquor dispute case. After this statement, the two men went away "towards the bushes in the direction of Kanwan wali". As Kanwanwali is to the north of Feroz Din's field, his statement taken as a whole would place the scene of the crime within 2 squares' distance, i.e., about 3 furlongs, from the abadi. However, the important consideration with reference to Feroz Din is that not being previously acquired with the accused although he had seen him before, he was at asked to identify him, by way of test, when the accused was eventually arrested on the 19th April 1950. In this connection it is important to note that Muhammad Latif, son of the deceased, appears to have declared his suspicion against Fazal Elahi on the 19th February 1950, and if Feroz Din's statement were true he should have been able, on the 20th February 1950, when he made his state ment to the police, to give them not only a description of Jamal Din's companion but also his name, and thereafter the police need not have hesitated to take proper action to secure the arrest of the accused, if he was then absconding, viz , by pro clamation and consequential proceedings under sections 87, 88, Cr. P. C. (The statement in the judgment of the High Court that the accused was arrested after having been proclaimed as offender is at variance with the declaration of the investigation officer that he preferred not to take such action but to use other methods of securing the arrest). A further reason for questioning the accuracy of Feroz Din's statement appears from the following passage in the judgment of the High Court :‑ "The witness (Feroze Din) left for Lambawali next day and returned on the 22n 1 of February 1950, when he was examined by the police. He had seen the deceased and the appellant together two days earlier." This would fix the date of Jamal Din's death as the 20th February 1950, at the earliest but the date given for the police examination is clearly incorrect. But even if the correct date be substituted viz., the 20th February, 1950, two days earlier would give the 18th February, 1950, as the date of the encoun ter, and that does not suit the prosecution case, which is that the murder was committed on the 17th February, 1950. If the supposition be made that Jamal Din was alive and in the vicinity of Kanwanwali on the 18th February, 1950, it would become necessary to explain how he spent the time from the morning of the 17th February 1950, to mid‑day on the follow ing day and was still no more than two kos from Chak No. 179, although his intention when he left home was clearly to proceed to Lahore. When carefully scrutinised the statement of Feroz Din clearly lacks the degree of precision necessary for concluding thereon that the deceased was in the exclusive company of the accused within a short time of the commission of the murder and within a short distance from the place where it was com mitted. The only other piece of circumstantial evidence offered for the purpose of connecting Fazal Elahi with the commission of the crime was that on the 2nd June, 1950, about six weeks after his arrest, during most of which time he was kept in police custody in connection with other cases, e.g., of theft and house breaking, Fazal Elahi led the police, who were accompanied by respectables, to a hay‑stack belonging to Chiragh, P. W. 16, who has already been mentioned, and drew out from the toori a jhola or bag Exh. P.

2. This was said to bear stains of blood, and reports of chemical analysts have been produced to show that the blood was of human origin. This circumstance is in itself remarkable, since the murder was committed some 31 months earlier and the interior of a hay‑stack is well known to retain heat which is a powerful aid to decomposition. The pro secution evidence is discrepant regarding the identity of this bag. Jamal Din's son Muhammad Latif declared that there were only two jholas in the house, namely his own, which had been bought, and his father's which had been knitted by his sister, and the latter jhola was Exh. P.

2. There is a note by the trial Judge on the record that Exh. P. 2 was made of canvas and was not a knitted bag. Mst. Allah Rakhi, daughter‑in‑law of Jamal Din, did indeed depose that when Jamal Din left for Nankana, he was carrying the bag, Exh. P. 2, in which his mid day meal had been put. The learned Judges in the High Court have held the identity of the bag to be proved by "the evidence of the sons of the deceased, his daughter‑in‑law, Mst. Allah Rakhi (P. W. 15) and of Jalal Din lambardar". Jalal Din's evidence was as follows :‑ "Out of a toori stack which stood in the field, the jhola belonging to Jamal Din, lambardar, was recovered. . . . . . . . . . . . . . . . The jhola was identified by relations of the deceased ." Jalal Din himself did not identify the jhola and the deceased's son, Din Muhammad P. W. 1, although he spoke to the recovery of the jhola, said nothing about its identity. The doubt on this point was noticed by the trial judge who also observed that the illegal detention of the accused for about month and a half "to facilitate investigation of the murder case alone" was "objectionable". Yet he thought that "the discrepancy could‑be‑ ignored in the light of the evidence of Jalal Din, Lambardar, and Muhammad Latif". The explanation lacks a basis, for Muhammad Latif's evidence itself gave rise to the discrepancy, and Jalal Din's evidence shows identifica tion by other persons than himself. Two matters, not examined by the Courts below, tend to deprive this particular circumstance of all value. One is that neither Sher Muhammad nor Feroz Din, who are believed by the Courts below to have seen Jamal Din shortly before his death, has said anything about his carrying this jhola or any jhola. By reason of its bright colouring, it could hardly have failed to attract notice, assuming that it was being carried in the hand, openly, in the normal way. Secondly certain evidence given in cross‑examination by Chiragh, P. W. 16, makes it highly doubtful whether the possession, if proved, is sufficiently recent qua the murder, to have any value for providing an inference of guilt. Chiragh, giving evidence in April, 1951, admitted that toori stacks are built each year, soon after the wheat harvest is gathered in April. In February 1950, the stack in existence would presumably be the stack containing toori from the April 1949 crop. In June, 1.950, however, there would be a different stack, containing toori from the April, 1959, har vest. and assuming that it was out of this stack that the jhola was recovered, it would be necessary to believe that it was concealed in the stack as late as about the end of April, 1950, two months and a half after the crime. If it had been concealed soon after the crime in the stack built in April, 1949, it would, in all probability have been discovered much earlier, and without assistance from any suspected culprit, through simple exhaustion of the concealing toori. The learned Advocate‑General of the Punjab relied on the three circumstances discussed above to support the conviction, and in particular on the circumstance that the deceased was last seen alive shortly before his death in the exclusive com pany of the accused. Indeed, it was conceded by the learned Advocate‑General, that if the last-mentioned circumstance were held not to be established, the conviction could not be supported, as the other two circumstances, viz., the accused's inquisitiveness regarding the intended movements of the deceased, and the recovery of the jhola would not exclude all reasonable possibilities of the innocence of the accused. When the evidence is closely analysed, it appears that the item which receives the weakest support is the recovery of the jhola, that the evidence of the deceased being last seen believe in the exclu sive company of the accused suffers from such a degree of vagueness, both as to time as well as place, as excludes the possibility of any inference of guilt being based thereon, and as to the first item, the only piece of evidence worthy of reliance is the statement of Muhammad Latif regarding the accused's conversation with his father on the night of the 16th February, 1950. In more than one place, the learned Judges of the High Court have expressed the view that the accused absconded after the crime, as a circumstance tending to prove his guilt. It has teen seen that the police took no steps to have him pro claimed as an absconder. His arrest was secured through one Muhammad Sher P. W. 23, a panwala of Lahore, whose sister is married in Chak No. 179, and who professes to be a great friend of the accused. The accused states that Muhammad Sher's sister had been abducted by Sajjad Ali, with whom he was himself working and living in Chak No.

179. It does not appear that this obvious line of enquiry was employed to pro cure the early arrest of Fazal Elahi. On the other hand, the evidence of Nathu, P. W. 20, indicates that Fazal Elahi was in Chak No. 179 on the 19th February, 1950, two days after the alleged murder, moving about in an ordinary way, Le., in no furtive or evasive manner, and the possibility arises that if he left the village, he did so after learning that he was being sus pected of the murder of Jamal Din. Such behaviour, particu larly in a person who was an outsider in Chak No. 179 obviously cannot be interpreted in the same implicatory sense as that of a culprit who absconds immediately after the com mission of the crime. The evidence of Muhammad Sher testifying to an extra judicial confession of this murder by Fazal Elahi, was disbelieved by the High Court, and does not require, or deserve, further consi deration. It may be that Muhammad Sher was instrumental in procuring the arrest of Fazal Elahi, but it is clear that the latter was wanted by the police in a number of other, and earlier cases, all of a serious nature. In the ordinary case, this Court is content to accept find ings of fact reached in the High Court. The present case, how ever, rests on nothing but circumstantial evidence Le., evidence relating directly to a number of minor facts, which facts the prosecution regarded as sufficiently, in the total absence of direct evidence, to sustain an inference that Fazal Elahi murdered Jamal Din. It may be conceded that "a concurrence of well authenticated circumstances composes a stronger ground of assurance than positive testimony, unconfirmed by circum stances, usually affords" (Paley). Nevertheless, where the direct evidence relates only to minor facts, and consequently the case rests wholly on circumstantial evidence, it is neces sary to remember that "processes of inference and deduction B are essentially involved, frequently of a delicate and perplex ing character, liable to numerous causes of fallacy" (Wills on Circumstantial Evidence). This danger points to the need for caution in accepting proof regarding any one of the minor facts adduced, before it is held to be established for the purpose of drawing inferences therefrom. A mere concurrence of cir cumstances, some or all of which are supported by defective or inadequate evidence, is apt to create a specious appearance which is calculated to lead to fallacious inference. Hence the necessity of accepting, as the basis of inference, only such circumstances as are "well authenticated". Another factor to be borne in mind in considering circumstantial evidence appears from the following dictum of Hewart, L. C. J. in the case of Taylor ((1928) 21 Cr. App. 20) :‑ "It has been said that the evidence against the applicants is circumstantial; so it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial." For the purpose of the present discussion, the emphasis of this passage lies in the expression "undersigned coincidence" Where there are indications of design, in the preparation of a case resting on circumstantial evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference. In the present case, there is one circumstance which bears the hall‑mark of design on the part of the prosecution and that is the recovery of the jhola, Exh. P.

2. No inference should, therefore, have been rested on this piece of evidence, but on the contrary, its presence was a strong argument for the exer cise of extreme caution in regard to the remaining pieces of circumstantial evidence. It cannot be said that the actions of the accused to which they relate are "well‑authenticated" on the basis of the evidence led in this case, with the exception of his conversation with the deceased on the night of the 16th February, 1955. which is clearly susceptible of an innocent explanation. Consequently, to base any inference on these alleged actions whether directly or intermediately leading to a conclusion of guilt, is a very risky proceeding. And finally since the time of death is uncertain, and the place of death is in the vicinity of a village, the accused's presence in the deceased's company when he was "last seen alive", as alleged, cannot by itself, lead to an inference, beyond reasonable doubt that he is guilty. Tee death may have occurred many hours later, and by that time, another person or persons may have joined Jamal Din in his journeying. The accused denied all the circumstances adduced against him as conduct going to prove his guilt, excepting the recovery of the jhola, Exh. P. 2, but the latter circumstance was not put to him when he was questioned during the enquiry and again at the trial. For the reasons already given, it is clear that there was no burden upon the accused to explain anything in the case, as the circumstances adduced fell far short of what was L required to raise an inference of guilt. The Courts below have overlooked certain essential principles applicable to scrutiny of 6 the proof adduced, and to the drawing of inferences, in cases resting exclusively on circumstantial evidence, and this has resulted in a failure of justice. The appeal is allowed and the appellant is acquitted. A. H. Appeal allowed.