1969 PLP 612 (SCMR)

Date of hearing : 1st February 1957. SHAHABUDDIN, J.‑This is an appeal by special leave from the judgment of the High Court of West Pakistan at Karachi by which the conviction for murder and the sentence of death imposed on the appellant Wali Muhammad by the Additional Sessions Judge, Dadu, were confirmed and his appeal was dismissed. The appellant was tried with five others‑his father Sando, his brother Sheral, his uncle Haji Kadir Bux, his wife's maternal aunt Mst. Panah Khatoon and the wife of one of his brothers, Mst. Sahib Khatoon on the charge that they formed an unlawful assembly with the common object of murdering Mst. Jamalan, wife of the appellant, that the appellant in the prosecution of the said common object caused his wife's death with a hatchet and thereby committed the offence of murder and that the other accused committed the offences punishable under sections 147 and 302/149, P. P. C. The case for the prosecution as stated by P. W. 2, one of the principal witnesses, was that at midnight on 23rd/24th July 1955, P. W. 2 woke up hearing the cries of "murder" coming from the appellant's house and on going there, followed by his cousin P. W. 3, saw the appellant standing with a hatchet in his hand and Jamalan lying dead with a bleeding injury. The clothes as well as the hatchet of the appellant were stained with blood and near the deceased stood the other accused of whom Sando, father of the appellant, was armed with a gun. On P. W. 2 saying that the appellant should have divorced instead of killing his wife, Sando aimed at the witness who along with P. W. 3 left the place. P .W. 3 corroborated P. W. 2 except with regard to the allegation that Sando father of the appellant was armed with a gun and aimed it at P. W.

2. As for the motive, P. W. 2's evidence was ' that the appellant was on terms of illicit intimacy with and wished to marry Panah Khatun, widowed sister of P. W. 2 and a maternal aunt of deceased Jamalan, that as they were within the prohibited degree of relationship P. W. 2 declined to allow them to marry, that the appellant thereupon ill-treated his wife Mst. Jamalan and that when P. W. 2 suggested that she should have divorce, the appellant and his father did not agree on the ground that such a course would cause them disgrace. P. W. 4 and P. W. 5 deposed that about 5 to 8 days prior to the murder the appellant attempted to drown his wife but that they rescued her. These 0prosecution witnesses and the appellant were relatives but they were not on speaking terms with him, as he had beaten P. W. 2's uncle about 4 or 5 months prior to the murder and the case filed by P. W. 2's uncle against the appellant was pending on the date the witness gave evidence. None of the above‑mentioned witnesses, however, reported the occurrence to the Police, In the examination‑in‑chief P. W. 2 deposed that the police came and made enquiries of him the next day but when cross‑examined he stated that he set out on his mare immediately after the murder for the police station, which is 6 miles from the place of occurrence and meeting the police coming with the appellant at a distance of a mile from the police station requested that his complaint should be recorded. According to the Sub‑Inspector of Police (P. W. 8) this version is not true. His evidence on the other hand was that he reached the scene of occurrence with the appellant, that after the inquest he recorded the statement of P. W. 2 whom he sent for. He denied that P. W. 2 met him near the Police Station. The first information was given by the appellant himself and it was recorded at 9‑30 a. m. on the 24th July at Mehar Police Station by an Assistant Sub‑Inspector of Police (P. W. 7). It was to the effect that at about dawn that day while lie and his wife were sleeping in front of his house, Ghulam Hussain (P. W. 2), his son Latif and one Imam Bux his relative came armed with hatchets, that Imam Bux aimed his hatchet at the appellant who avoided the blow, which however fell on Mst. Jamalan causing an injury of which she died, and that he (the appellant) then escaped crying "murder murder" and his relatives who were his co‑accused at the trial also raised an alarm when P. W.2 and his two companions as well as others whom he mentioned as standing in his courtyard at the time of occurrence left the place. Later, on finding that his wife was dead he went to the police station leaving his father and brother in charge of the corpse. He also stated that while he was escaping from the house he sustained two abrasions on the back by having come into contact with one of the logs of wood on the roof. P. W. 7 who recorded the appellant's statement issued a memo. to the doctor to examine the appellant. P. W. 8 the Sub‑Inspector of Police who came to the station at 9‑45 a.m proceeded to the spot and as stated already held the inquest, examined the appellant's father, brother and uncle and then recorded the statements of P. W. 2 and P. W. 3, Latif, Imam Bux and others, whom the appellant had implicated. On the 27th July after the D. S. P. verified the investigation, the appellant and his co‑accused were arrested and on the investigation made by P. W. 8 the case out of which this appeal has arisen was registered. As no action was taken on the information the appellant had Oven, 11e preferred a private complaint implicating P. W. 2, his son, cousin and other, who, also were committed to Sessions. The appellant in his statements in the committal enquiry and at the trial stuck to his version in the F. I. R. recorded from him. The Additional Sessions Judge acquitted the accused who were tried with the appellant observing that they were residing in the house of occurrence and had no motive to kill the deceased and P. Ws. 2 and 3 did not state that they had seen any weapon in the hands of any of those accused, but stated that they saw a hatchet only in the hands of the appellant. But as pointed out above P. W. 2 had deposed that the father of the appellant was armed with a gun. This was not corroborated by P. W. 3 and was rightly ignored, but its mention however is necessary as the observation of the trial Court referred to above was incorrect. As regards the appellant, evidence of P. Ws. 2 and 3 that his clothes and hatchet were blood‑stained was not believed on the ground that as it was dark the witnesses could not notice the blood‑stains, but their evidence that they could see the hatchet in his hand was accepted. Having thus come to the conclusion that there was no blood on the appellant's clothes the trial Court held that bad the deceased sustained the fatal injury as alleged by the appellant, he would have been covered with blood. As for the fair re to report the matter to the police the Sessions Judge observed that as it was a matter between a husband and wife the witnesses went away quietly to their house, but that was not the explanation given by P. W.

2. As stated above, P. W. 2's version was that he set out for the police station on his mare immediately after the occurrence and met the police at about a mile from the police station coming with the appellant, which version was contradicted by the Sub‑Inspector of Police. The Additional Sessions Judge also held that the appellant after killing the deceased realised that he might be suspected and therefore raised cries "thief thief"; but this again is not the evidence of P. W.

2. According to him the cries he heard were of "murder". He and P. W. 3 however had stated to the police that when he went to the scene of offence the appellant was crying and saying that thieves had killed his wife, though in the box the witnesses denied having made such a statement. Evidence of P. Ws. 4 and 5 regarding appellant's attempt to drown the deceased was believed by the trial Court; but the learned Judges of High Court did not accept that part of the case observing that it was not proved by independent testimony, the witnesses who spoke to it being interested, but they accepted the evidence of P. Ws. 2 and 3 although they were equally interested. The version of the appellant in the F. I. R. was subjected to close scrutiny and the conclusion of the trial Court was upheld. It was observed that the appellant threw the blame on thieves, and that the allegation that murder took place at dawn was incompatible with strangers having committed it; but in fact the appellant had in his complaint accused P. W. 2 his son and cousin as the culprits, and as pointed out already the evidence of P. W. 2 was not that the cries were `thieves thieves' or that the appellant was saying that strangers committed the murder. Apparently ,the learned Judges relied in this connection on the statement of P. W. 2 to the police in preference to his evidence. It was contended on behalf of the appellant before us that the learned Judges confirmed the conviction more on what they considered to be inherently improbable in the appellant's version than on the evidence of P. Ws. 2 and 3, without noticing that there was an inherent improbability in their version also. On behalf of the State it was conceded that unless P. Ws. 2 and 3 were believed the defects noticed in the version of the appellant were not sufficient to sustain the conviction. It was however pointed out that the learned Judges had referred specifically to the contention that the evidence was of interested persons and should be examined with utmost care and caution; but no portion of the judgment could be referred to us as containing a careful scrutiny of that evidence. In these circumstances it becomes necessary for this Court to assess the value of the evidence adduced by the prosecution. So doing, we find that it cannot be said that the case for the prosecution has been established beyond reasonable doubt. The version of the appellant may appear unconvincing, but on that ground alone the appellant cannot B be convicted as the prosecution has to prove its case. It was no doubt common ground that the appellant was sleeping by the side of his wife on the night of murder, but if as found by the Courts below he bad murdered his wife and to avoid being suspected cried out "thief thief", it is impossible to believe that he would have while raising those cries continued to hold a hatchet in his hand with the other members of the family standing with him so that persons who would come hearing the cries could see them in a position indicative of their complicity in the crime. Reference has already been made to the fact that P. Ws. 2 and 3 had stated to the police that when he came on the scene the appellant was crying and saying that "thieves" had killed his wife. Even this version is inconsistent with his standing holding a hatchet. This aspect of the matter was not considered by the Courts below. If once this part of the evidence of P. Ws. 2 and 3 is disbelieved on the ground that it is inherently improbable, the other circumstances relied on by the Courts below, as rightly conceded by the learned Assistant Advocate General, are insufficient to sustain the conviction. But there is yet another defect which is equally serious and that is P. W. 2 not having taken any action in the matter till the police arrived on the scene and Rent for him. As already pointed out the explanation suggested by the trial Court is not based on evidence. The learned Judges of the High Court have observed in this connection as follows: "It is also in evidence that P. W. Ghulam Hussain did go to report the matter to the police. This is indicated even in the cross‑examination of this witness on b: half of the appellant. This fact was however denied by P. W. Abdul Karim (Exh. P. 16). The reason is obvious that if he would have admitted it then he would have been taken to task by his superiors for not recording the report of Ghulam Hussain. We have carefully considered the evidence of this witness with regard to this aspect and we do not believe it." But the Additional Sessions Judge before whom this witness had deposed did not disbelieve him, and we can see no justification for doubting his testimony. On a scrutiny of the evidence of P. W. 2 on this point we are unable to agree with the above observation. As indicated already he did not state in examination‑in‑chief that he set out to report the occurrence. On the other hind, he stated there that the Police cams and made enquiries of him the next day. It was only in crass‑examination that he said that he went to the Police but what he slid in that connection was this. "I had also left for lodging report with police on my mare immediately. Mehar is 6 miles away from us. Police met me near Gahi Mehesar village at a distance of about a mile from the police station. Wali Muhammad was coming with police on a mare." Then follows a significant note. "The witness takes the hint from A. P. P. and states that I went to police on foot. Mr. Assandas says that it is not so. He simply got up and spoke in English." Now, according to the version of P. W. 2 which was believed by the learned Judges the occurrence took place at midnight hour; and if P. W. 2 had set out immediately even on foot he would have reached the : police station much earlier than when P. W. 8 had come a mile away from there towards the scene of occurrence which must have been sometime in the forenoon. But he clearly stated that he went on his mare and the note of the Additional Sessions Judge is that he changed his version on a hint from the A. P. P. In this view, it does not seem to us reasonable to doubt the testimony of P. W. 8 when it does not appear to have been suggested that he was favouring the appellant in this case. On the other hand, P. W. 9 deposed that it was on the investigation made by P. W. 8 that this case was registered. In our opinion no action was taken by P. W. 2 or P. W. 3 to report the occurrence, and this fact throws a considerable doubt on the truth of the version of these witnesses. It is clear from the evidence of P. W. 2 that he had a grievance against the appellant and that he and the other principal witnesses were not on speaking terms with the appellant. That being so,, the allegation that he and his companions came to attack the appellant could not be dismissed as wild or impossible of belief. The learned Judges observed that the question was as to who had a motive to get rid of the deceased and they proceeded to hold that only the appellant had a motive to kill her; but the case of the appellant was not that P. W. 2 and his companions attacked the deceased but that the attack was on him and when he evaded it the blow fell on the deceased. It was not found by the learned Judges that it was impossible that the fatal injury on the deceased resulted from a blow evaded by the appellant falling on her. They observed that had the appellant escaped as alleged by him P. W. 2 and his companions would have chased and killed him, but even according to P. W. 2 there were several relatives of the appellant present at the spot and that may be the reason that he vas able to escape. They further observed that if Imam Bux had struck the blow, the family of the appellant would not have left Jmam Bux escape, but according to the complaint of the appellant there were several others of P. W. 2's party standing in the courtyard armed with hatchets. The learned Judges expressed their surprise at the appellant leaving the place immediately after the occurrence without attending on his wife; but their observation on ibis point overlooks the statement in the complaint given by the appellant that to left for the police station only after knowing that his wife was dead. There is in our opinion considerable force in the contention of the learned Advocate for the appellant that the Courts below did not scrutinize the evidence of P. Ws. 2 and 3, while they subjected the version of the appellant to a very close scrutiny. These two versions, however, appear to us equally balanced, and we think this is a border line case. We, therefore, set aside the conviction and sentence imposed on the appellant and acquit him. Appeal accepted.