P L D 1954 Federal Court 95 (PLP)

SHAHABUDDIN AND CORNELIUS, JJ.--‑This is an appeal by special leave from the judgment of the High Court of Judicature at Lahore by which the convictions under section 302 read ,with section 34, P. P. C., and the sentences of death imposed by the Sessions Judge of Rawalpindi on the appellants Lal, Muhammad Ashraf and Muhammad Aslam for the murder of one Muhammad Ramzan, a Postal Runner, were confirmed and their appeal was dismissed. At the conclusion of the arguments we allowed the appeal and acquitted the appellants stating that we would give our reasons later. This, we now proceed to do. On the 4th June 1953, Muhammad Ramzan carried the Dak from Darkali Post Office to the Post Office at Kallar, a distance of three miles, and left Kallar the same day at about noon with the Dak for Darkali, carrying it in a bag used in post offices which contained also a leather cash bag, but there was no cash in it that day. Next morning his body was found in a kassi (ravine), running alongside the path he was following. A basket of fruit, a towel containing vegetables and a pair of shoes were found lying on the footpath. These had been identified by Khan Zaman (P. W. 4) as the property of the deceased who also kept a fruit shop, and it is important to note that they were disposed in such a manner as to give the witness the impression that the owner had gone into the kassi to relieve himself. Muhammad Sabir (P. W. 2) the Lambardar on hear ing of the discovery of the corpse visited the spot where people had gathered, and noticed the turban of the deceased tied round the neck which gave the impression that he had been strangled to death. On his reporting the matter to the Police, the Sub -Inspector (P. W. 12) came on the spot the same day, prepared the statement of injuries and the inquest report. The post mortem examination disclosed that death was due to strangula tion and that there was a scalp deep injury on the left side of the top of the head and contusions and scratches on other parts of the body. Information as to who had committed the murder, however, was not available till after the inquest, when witnesses were examined by the police. The direct evidence of the murder on which the conviction of the appellants rests is that of Faizullah a boy of 13 years (P. W. 3) given in the Committing Court, which was treated as substantive evidence under section 288, Cr. P. C., as at the trial he deposed that he was not an eye‑witness to the murder. His evidence before the Com mitting Magistrate was as follows:‑ "On 4th June 1952, I had gone to Kallar along with my father to purchase some exercise books. Father had to draw pension. We made some purchases. My father then asked me to go back at peshiwela. I set out with the articles. When I was 60 or 65 paces from Ban Hashim Wala I saw Muhammad Ramzan, Postman going ahead of me. I saw Lal, Ashraf and Aslam, accused, now present in the Court, going after him. Muhammad Ashraf had the stick, Exh. P. 4 with him. Ashraf then gave a stick blow to Muhammad Ramzan on his head. Muhammad Ramzan fell down Aslam and Lal accused, then tied his turban round his neck and twisted ‑it. Then the accused threw the body in pool of water which was closeby. The accused then took the postal bag. I stopped for a while and then went ahead and when I reached near them Lal accused slapped me. Muhammad Ashraf accused, then said I should also be killed. Lal, accused threatened me that if I disclosed this, I would also be killed. I then went home and did not mention the incident to any body out of fear. On the following day when there was a raula about this murder I mentioned the incident to my father. My father also told that be had also seen the accused together. Articles P. 1 to P. 3 were lying near the spot at the time of the occurrence. It rained later on the day of the occurrence. I made the statement before the Police on 5th June 1952." At the trial this boy stuck to his version that on the day of the murder he had gone to Kallar with his father P. W. 4 and while the latter remained at Kallar he (the witness) returned home; but he added that he did not see anything on the way except the dead body of Muhammad Ramzan lying in water and the basket and towel and shoes lying a few paces away. His father returned home later and to him the witness stated what he had seen on the way. In cross‑examination P. W. 3 explained that it was only on his having been offered by his father to the Police as a witness that his father who was suspected and threatened in connection with this murder was let off. He further stated that he made the earlier statement out of fear of the Police. Khan Zaman (P. W. 4) the father of P. W. 3 had deposed before the Committing Magistrate that on his way home from Kallar he had seen the accused coming from the direction of the scene of crime, the appellant Ashraf carrying a stick and Lai appellant carrying something under his chadar and that on proceeding further he found the basket, towel and shoes of the deceased lying on the way and thought that the deceased had gone to ease himself. He also stated that the next morning Faizullah told him that he had witnessed the murder and on being questioned as to why he did not inform this witness of it earlier Faizullah replied that he was afraid as he had seen a murder being committed. At the trial however, P. W. 4 denied having deposed before the Committing Magistrate that P. W. 3 told him the next morning that he was an eye‑witness to the murder. In other respects he did not resile from his earlier statement. His evidence before the Committing Magistrate was brought on the record as substantive evidence under section 288, Cr. P. C. In cross‑examination this witness explained that the police bad detailed him for a day and asked him to appear as a witness, that he told them that he had a white beard and could not tell a lie, but that they could have his son as a witness though he bad not seen the occurrence. The rest of the evidence which was considered by the Sessions Judge as important is to the following effect. P. W. 5 who had accompanied P. W. 4 that afternoon from Kallar also spoke to having met the accused on the way, the appellant Ashraf 'carrying a stick and appellant Lai carrying something under his chadar. He, however, added that he met the appel lants near their village and at the place where they had their lands. P. W. 8 (Sahibzada Lai Hussain) deposed that on the night of 8th June the three appellants came to his house and con fessed that they had murdered Muhammad Ramzan and asked him to produce them before the police which he did the next day. On 12th June 1952 the appellant Lai led the police to a spot near his house from where burnt pieces of a canvas bag and a partly burnt leather bag were dug out. P. W. 7 the Branch Postmaster of Darkali and P. W. 13 the Sub‑Postmaster of Kallar identified the recovered pieces as those of bags used in post offices, but they could not say that they related to the very bags which the deceased carried that day between Kallar and Darkali. The defence was that the appellents bad been implicated on account of their enmity with the Lambardar. Appellant Lai denied having taken the police to the spot from where the recovery was made. Two witnesses were examined for the defence to show that the zimnies were not sent promptly by the Sub- Inspector to his headquarters, but their evidence did not materially help the defence as according to the evidence of P. W. 5 the state ment of P. W. 3 was recorded on the 5th of June itself. The Sessions judge in convicting the appellants relied on the evidence of P. Ws. 3 and 4 before the Committing Magis trate treated as substantive evidence under section 288, Cr P. C., the evidence of P. W. 5, the extra‑judicial confession spoken to by P. W. 8 and the recovery of the pieces of the bags from the spot to which the appellant led the police. The learned judges of the High Court, however, did not consider it safe to reply on the evidence of P. W. 8, but they accepted as true the evidence of P. Ws. 3 and 4 given in the Court of the Committing Magistrate on the following grounds;‑(l) that P. Ws. 3 and 4 had no motive for implicating the appellants falsely; (2) that though two counsel appeared for the accused before the Magistrate, P. Ws. 3 and 4 were not cross examined there at all; (3) that the silence of P. W. 3 on the first day could reasonably be due to the accused persons' threats and his readiness to speak on the next day to the effect of the threats having "worn off" when the talk of the murder became general, and (4) that "the earlier statements of the father and son ring true'". The learned judges adverted to the fact that the investigating officer had not been questioned whether P. W. 4 had been called as a suspect and had , in fact stated that he called no suspects. They further held that the evidence of Faizullah received corroboration from (a) the medical evidence that there was an injury on the left part of the top of the head which, they thought, suggested that the blow on the head was dealt from behind and thus supported the version of P. W. 3 that at the time of the attack the appellants were going behind the deceased; (b) the evidence of P. Ws. 4 and 5 that they saw the appellants coming together from the scene of occurrence near their own village a short time after the murder, appellant Lal carrying something under his chadar, which the learned judges regarded as of some importance though by itself it was insufficient to establish the guilt of the appellants; and (c) the recovery of the burnt pieces of the bags at the instance of Lal appellant. This was considered to be a very important circumstance not only against Lal but also against the other appel lants as supporting the general truth of the evidence of P. W. 3 before the Committing Magistrate. One of the reasons given by the Sessions judge for prefer ring the evidence of P. W. 3 before the Committing Magistrate was that he stated even before the Post‑mortem examination that the deceased was hit on the head and strangled to death, but it is clear from the evidence of the Sub‑Inspector (P. W. 12) that he examined this witness only after drawing up the state‑ ment of injuries and the inquest report. The injury on the bead and the fact that there was cloth tied round the neck indicating that death was due to strangulation must have been noticed by those present at the spot, before P. W. 3 was examined. No significance can therefore be attached to the fact that P. W. 3 described in his earlier statements how the murder was com mitted. The neat disposition of the things the deceased was carrying in itself falsifies the story that he was surprised from the rear and hit on the head while he was proceeding along the path presumably carrying these goods. In the latter case, the fruit, vegetables, etc. would naturally be found scattered around the place of attack. It does not appear that this aspect of his evidence was considered by the Sessions judge or the learned judges of the High Court. The observation of the learned judges that P. Ws. 3 and 4 were subjected to some influence on behalf of the accused is an assumption for which there is no foundation. No suggestion to that effect was put to them when they were cross‑examined by the prosecution at the trial. Nor is there any indication in the evidence that the appellants were so influential that even after they were committed to sessions these witnesses could be gained over. It is true that, as observed by the learned judges, there was no personal motive for P. Ws. 3 and 4 to falsely implicate the appellants before the Committing Magistrate, but they have given an explanation which is not entirely improbable. The learned judges rejected this explanation relying on the evidence of the Sub‑Inspector, that he did not treat anyone as suspect, but P. W. 7. the Sub‑Postmaster of Darkali, deposed in cross examination that the police sent for several people of the Ilaqa including the neighbouring villages to make enquiries from them. The witness no doubt, added that those persons were not treated as suspects, but it is also his evidence that the police enquired of them if there were any enemies of the deceased and who had committed the murder. This version does not accord with the case for the prosecution that this boy of 13 came forward voluntarily to give evidence as an eye‑witness after the inquest was over. It is clear from the evidence of the Sub‑Inspector that after sending the corpse for the post‑mortem examination he recorded the statement of witnesses including P. W.

3. If the earlier version of D. W. 3 was readily forthcoming it is difficult to understand why the police were enquiring from the persons, whom they had sent for, as to who had committed the murder. P. W. 12 of course does not admit having sent for several people of the Ilaqa, but P. W. 7 is definite that they were sent for. This aspect of the evidence of the prosecution does not appear to have been considered by the learned judges. The other reasons for relying on the earlier statements in preference to those made at the trial appear to us to be plainly speculative in character. Reservation of cross‑examination at the commitment stage is a very common practice, whose adoption cannot sustain any conclusion as to the truth of the statements in‑chief. For explaining the readiness of the boy to speak on the 5th June, the wearing off of an earlier fear and the development t of a new fear might be equally plausible explanations. And, as for the "ring of truth", it can hardly afford such a test as consists with the judicial duty of deciding the case on the basis of evidence, when, there are two versions given by the same person which cannot be reconciled with each other and either of the versions is equally plausible and consistent with the other evidence and circumstances. In the last report the rule applying must be that the benefit of every doubt in the prosecution case goes to the' accused. While, therefore the Court has discretion to prefer the earlier statement of a witness such as P. W. 3 which has been transferred under section 288, Cr. P. C. to his later statement at that trial, that discretion must be exercised with great care, on a careful scrutiny of the two conflicting statements in relation, to all other evidence and circumstances appearing from the record and not on mere surmise or conjecture as to possible reasons for the witness having resiled from his earlier state ment. This does not appear to have been kept in view by the. Sessions judge or the learned judges of the High Court in assessing the evidence of P. W. 3 and P. W.

4. As for the corroboration mentioned in the judgment of the High Court we fail to see how the fact that there was an injury on the left side of the top of the head can be taken as indicating that the attack was from behind. It is more likely that that injury was caused from in front of the deceased than from be hind. A blow dealt from behind is likely to land on the right side of the head of the victim unless the assailant happens to be left‑hand, but there is no evidence that the appellant Ashraf was left‑handed. The fact that P. Ws. 4 and 5 met the accused on the way can hardly be of any c3rroborative value as far as Faizullah's evidence is concerned and, as rightly observed by the learned Judges, that by itself is insufficient to lead to the infer ence that the appellants committed the murder. As stated already P. W. 5 has deposed that the spot where he met the appellants was near their fields and village. Regarding the recovery of the burnt pieces of the bags the two Postmasters who handled the bags which they gave the deceased that day were unable to say that those were the pieces of the bags which the deceased carried According to them he carried similar bags. The mere fact that the recovered pieces were of bags generally used in post offices is not, by itself, adequate for being made a basis for a conviction for murder even as far as the appellant Lal is concerned. As regards the other appellants that evidence is of no value. It is significant that P. W. 3 has not deposed as to which of the accused took away the bag. His version before the Committing Magistrate that the accused took it is a statement, which even a person who had not seen the murder could on mere surmise make on the assumption that the motive for the crime was robbery. In these circumstances it appears to us that the reliance of the learned judges upon the statements of P. W. 3 and P. W. 4 before the Committing Magistrate in preference to those made at the trial is not in accordance with the correct principles which are applicable to the valuation of evidence received under section 288, Cr. P. C. and that what has been regarded as corroborating the evidence of P. W. 3 did not in fact amount to corroboration of a version which according to the witness himself was false. For the reasons given above, we are of opinion that the convic tions of the appellants cannot stand. AKRAM, A. C. J.--‑I agree in the order setting aside the convictions of the appellants. The evidence on the record does not appear to me to be such as to lead to a clear inference that the crime in question was committed by the appellants. A. H Convictions set aside.