1975 P Cr (PLP)

TUFAIL ALI A. REHMAN, C. J.‑

The deceased one Baka alongwith his wife Mst. Soni resided at the relevant time in village Abdul Rahman Machlo which is about seven miles from the Kandiaro Police Station in District Nawabshah. In the same village resided also the appellant and the principal prosecution witnesses in this case who are all Machlos except for one Faizal who is a Pirzada. Another important witness was Latif, a Junejo by caste, who although examined by the police was not examined in Court as a prosecution witness but as a defence witness.

2. It is the prosecution case that sometime before the incident the deceased bad complained to the first informant Abdul Rahman that he suspected the appellant to be on terms of illicit intimacy with his wife Mst. Soni and that on this account he should be prevented from visiting his house. It is said that the first informant spoke to the appellant but the latter denied the allegations and was annoyed and spoke somewhat threateningly in regard to the deceased. On the night of the 22nd February 1972, at 11 p.m. the appellant appeared at the house of the deceased and demanded from him why the latter was making false allegations against him and the deceased respondent by asking him what he meant by coming at that hour of the night. While the deceased was in the process of getting up, the appellant, it is said, fired suddenly with his pistol at the deceased on which account the deceased was injured and fell. On the cries of the wife, the first informant Abdul Rahman and several others came and to them she narrated the facts as a result of which Abdul Rahman went and lodged a first information report at the Kandiaro Police Station at 4‑30 a.m. the next morning. The deceased was taken to the hospital where he soon died and thereafter the case was treated as one of murder though, quite under standably, the F. I. R: is registered under section 307, P. P. C. An investigation ensued in the course of which the police examined not only Mst. Soni but also 'other witnesses who are said to have come to the scene on hearing the cries and who were given the story either by the lady or by Abdul Rahman. Of these may be particularly mentioned Latif who now figures as a defence witness. The only other feature of the investigation which is worth noticing is that the appellant who was arrested on the 5th February 1972, is alleged to have produced a pistol on the same day from some bushes. In due course the appellant was sent up, tried and convicted of an offence under section 302, Pakistan Penal Code and sentenced to death. It is against this conviction and sentence that the present appeal has been brought and the sentence of death also is before us for confirmation, In regard to the offence under the Arms Ordinance he was, however acquitted by the learned Judge who has, consistently with that acquittal, rejected the testimony in regard to the production of the pistol.

3. Now admittedly the only eye‑witness against the appellant is Mst. Soni, the widow of the deceased. The learned Judge having rejected the evidence in regard to the production of the pistol, in my, opinion quite correctly, the sole corroboration that would ordinarily have been available for the evidence of Mst. Soni would have been the evidence of the first informant and such other people as came on the scene immediately there after and who were told about the occurrence. The first information report gives the version which I have already stated and quite categorically and unambiguously names the appellant as the culprit. Besides the first infor mant the prosecution examined Faizal as one of those who came to the scene. P. W. Loung was also examined but his name is not mentioned in the first information report while the names of Abdul Latif, a Junejo by caste and Faizal a Pirzada by caste are mentioned and, indeed, Loung was examined only because he was a mashir, Abdul Latif was examined as a defence witness, the prosecution having given him up. The version that Abdul Rahman, the first informant, gives, is that the culprit was not identi fied but that Mst. Soni said that a man like Abdullah fired at the deceased Loung, who is a son‑in‑law of the first informant also said that when he came Mst. Soni had already left the village and that he then went and fetched Abdul Rahman. According to him, thus, Mst. Soni did not even meet the first informant. Faizal gave the same story as the first informant. Latif, the prosecution refused to examine but being examined as a witness for the defence, said that Mst. Soni told Abdul Rabman that she suspected that the culprit was the appellant inasmuch as he looked like him.

4. It is obvious that if the evidence of these witnesses is to be believed then they cast at least a very serious doubt upon the truthfulness of Mst. Soni's evidence. Before examining the evidence of Mst. Soni, therefore, I propose to consider the effect of the evidence of these witnesses.

5. The learned Judge is of the opinion that by reason of the close relationship of the prosecution witnesses with the appellant they have tried to oblige the appellant and that, therefore, they are not to be believed when they say that it was not the appellant who was mentioned to them but only a person resembling him: It is of course, in the circumstances of the case, entirely possible that the evidence has been tampered with and indeed at first sight I myself was rather inclined to take the view that this evidence is not trustworthy. If that view were to be accepted it should be possible to base the conviction of the appellant upon the sole testimony of the widow Mst. Soni (assuming of course for the time being that her evidence is of that character which would inspire confidence) and that fact that the evidence of these witnesses contradict her would not matter if their evidence in Court were not acceptable. After careful consideration, however I am of the opinion that this view cannot safely be taken in regard to the evidence of Abdul Rehman and Loung. In the first place no attempt has been made by the prosecution to contradict the first informant with the first information report. It is true that in the examination‑in‑chief he has admitted making the first information report but, if the prosecution intended to discredit leis testimony on the score of its being indirect contradic tion of the first information report, it was the duty of the prosecutor to have put the first information report to him with a view to obtaining his explanation of the difference between the two. The learned Judge has also rejected the evidence of the first informant upon this ground and has also relied upon his relationship with the appellant as furnishing the motive for his going back upon his version given in the first information report.

6. In regard to this relationship the position is that he describes the appellant as being his brother‑in‑law. A reference to the Sindhi version shows that by brother‑in‑law he meant the 'sala' that is to say, his wife's brother. The deceased also, however, is described as his 'sala'. Now if the deceased and the appellant were brothers then of course this is entirely possible but the deceased is the son of All Mardan while the appellant is the son of Khan. There are two possible ways in which this could be reconciled, the first being that each of them may be the brother of two different wives of the first informant. Its that case, however, one would expect that the first informant would refer to this relationship by saying that Vie deceased was the brother of so and so who was his first wife and the appellant was the brother of another lady who is a second wife or something of that kind. On the contrary he mentions both of them merely as "sala", The other possible explanation is that the deceased and the appellant might have been uterine brothers for, in Sindhi at least, one might possibly refer to a consanguine brother as a brother although he is only a half brother but one would not refer to a uterine brother as a brother without specifically saying that he is a step‑brother. In any event if the prosecution desired to rely upon this relationship as falsifying the testimony of Abdul Rahman in Court they should have clarified the position.

7. The learned Judge too could and should have questioned the witness in order to ascertain what the position was. It must have been clear to the learned Judge that any question of the first informant or the Other witnesses wishing to help the appellant would be a question of great importance and I think it was his duty, therefore, while recording the evidence to ascertain for himself what the true position was. Learned Judge, who conduct original trials must take an active and alive interest in the recording of evidence ; the process of forming a judgment is a con tinuing process and, while of course a Judge must not make up his mind finally during the course of the trial, he must allow his mind to develop and react to the evidence in the course of its being recorded. If the judgment is to be based merely upon the evidence mechanically recorded then the confidence and respect which is placed upon the view of a trial Judge on the; ground that he heard and saw the witnesses would be entirely misplaced and an appellate Court would be in as advantageous a position as assessing the evidence as the trial Judge himself.

8. The basis of Loung's relationship with the appellant is only that he is the son‑in‑law of the first informant and is therefore dependent on the relationship which I have discussed in the last para.

9. Faiz Muhammad, it is true, does say that Soni told him that it was the appellant who had caused the injury to her husband. His version however of what Soni told him as to the reason for the appellant coming is curious and indeed incredible. According to him Soni told horn that the appellant had come there wanting to have intercourse with her and it was on her refusal that he killed her husband Baka. Now even Soni does not claim that the appellant was her lover at any time though it is true that according to the prosecution the deceased did so suspect it. It is incredible that the appellant would want the woman to have intercourse with hint arid would make this request to her to the presence of her husband in her own house. Besides according to Faiz Muhammad when he went there Abdul Rahman was already present but no one else, and yet as we shall presently see Loung claims that he was the first to arrive and not until half an hour later did Abdul Rahman come. In any event he is contradicted by the statement he made to the committal Magistrate where he said that nobody told him who the culprit was and he himself made no enquiries. It may also be remembered that, so far from being related to the appellant, he does not even belong to the same caste. Faiz Muhammad's evidence therefore, also does not do much to corroborate the evidence of Mst. Soni.

10. There is then the evidence of Latif who also, like Faiz Muhammad in not a Machlo by caste but a Junejo. Learned counsel for the appellant argued that he should be treated as a prosecution witness, inasmuch as, he was examined by the police, his statement under section 164, Cr. P. C. recorded, and his name shown in the list of witnesses of the prosecution. I do not see, however, that it makes any difference whether he should be regarded as a prosecution witness or not inasmuch as he was examined. But certainly it could be said in favour of the defence that his was a name which had transpired in the investigation already and there was no question of his being a fabricated witness. His version completely contradicts the evidence of Mst. Soni and, if he is to be believed, certainly the culprit was not identified on that night. It is difficult to see how the main argument of the prosecution that the witnesses have been tampered with applies to this witness. He not only is not related to the other witnesses or the appellant but belongs to a different caste and as early as on the fourth of February 1972, his statement under section 164, Criminal Procedure Code was recorded. It might be noted that the appellant was not arrested until the fifth. Now the net effect, therefore, is that such evidence, as there is in the case, besides that of the eye‑witness contradicts her evidence in the most material aspect, namely, the identity of the culprit. If all this evidence could have been rejected, as I have been unable to do, it would be for examination whether the evidence of Mst. Soni in itself was reliable and therefore, although uncorroborated, might suffice to sustain the conviction,

11. The evidence of Mst. Soni herself has been subjected to some criticism by Mr. Hayat Junejo appearing for the appellant. I would deal first with what I think, are mere minor criticisms, and among these is the suggested improbability of her being awake at the time of the crime. That was nearly mid‑night and the season was winter and Mr. Hayat Junejo, therefore, claims that normally people would be asleep at that time. It is true that she has not stated in her earlier statement what she said in Court, namely, that her child was crying but that is not the reason why either she or her husband woke up and the fact, therefore, does not in any event make any difference. According to herself she and her husband were talking and the importance of the criticism lies in this that if the husband was not awake then it would be probable that bleeding from his wound would have stained the guilt which he must have put on. It is not at all improbable however that they should have been awake and therefore the fact that the quilt was not blood‑stained does not really make any difference. In any view of the matter there can be no doubt that the deceased met his death at the place where it is alleged, namely, his own house.

12. Mr. Hayat Junejo has then criticised her evidence as being that of a loose woman and suggests that in all likelihood it was her lover who had come there on that night to kill the husband. He points out to the fact that she married very soon after the murder and in these circumstances he argues that the finger of suspicion is clearly directed against her present husband. There is, however, no evidence whatever that she was carrying on with her present husband at the time and I tee no reason to believe this.

13. Certainly if the murder was committed by a person in whom she was interested and with her connivance the person whom she names would not be the true culprit. There is, however, really no evidence that such was the case and if that were all I should not for my part have been willing to disbelieve her evidence. The fact remains, however, that hers is the only evidence and that it is contradicted by several witnesses Whose names appear in the first information report. As I have said there is no reason why that evidence can be brushed aside and I am unable, therefore, to hold that the conviction can be safely based upon her evidence alone. I would, therefore, allow this appeal, set aside the conviction and sentence of the appellant and acquit him. JAMALUDDIN H. AHMAD, J.‑

I agree. Appeal allowed.