AMINULLAH vs THE STATE

ZAFFAR HUSSAIN MIRZA, J: These two appeals, once hawing been disposed of by this Court, have been reopened for fresh adjudication as a result of an order passed on review, whereby the operative order earlier passed disposing of the appeals, was recalled.

2. Appellants Aminullah and Naimatullah, who are brothers, were tried by the learned Additional Sessions Judge, Peshawar, under section 302/34, P. P. C. For the murder of their father Haji Muhammad Yousaf Jan (a retired Executive Engineer of the Electricity Department of the NWFP, a Khan of the village and owner of considerable landed and urban property in Charsada and neighbouring Mahals). They were found guilty and were convicted under the aforesaid sections and were sentenced to death by judgment and order, dated 9-2-1973. The appellants filed separate appeals but their appeals were dismissed and their sentences were confirmed by a Division Bench of the Peshawar High Court on 25-4-1974. They then filed separate appeals by special leave before this Court which were beard by a Bench of four Judges comprising of Muhammad Yaqoob Ali, C. J., Salahuddin Ahmad, Muhammad Akram and Dorab Patel, JJ. So far as the appeal of appellant Aminullah is concerned, it was dismissed by majority formed by concurrence of three learned Judges. As regards the appeal of appellant Naimatullah, the Bench was equally divided, two of the learned Judges maintained the conviction whereas the other two found that the case against him was not free from doubt. In the result, by the order of the Court, dated 3-5-1976, the appeal of Aminullah was dismissed on the basis of the majority opinion and also the appeal of Naimatullah was dismissed as there was equal division on the question of his guilt, so that the judgment of the High Court, maintain--ing his conviction confirming the sentence of death awarded to him by the trial Court remained in the field. Being dissatisfied with the aforesaid operative order passed by this Court, both appellants filed review petitions which were accepted and by the order of the Court, dated 3-5-1976, it was directed "that in view of equal division of opinion amongst .Fudges as men--tioned in their respective judgments the case of Naimatullah accused is referred to a larger Bench". The case of appellant Aminullah was also similarly referred to the larger Bench for the following reasons :- "So far as Aminullah petitioner is concerned, the three Judges by majority found him guilty. His case, therefore, does not deserve to be reviewed on the above-mentioned ground. However, as we notice, and as was argued by his learned counsel Mian Mahmud Ali Kasuri, if for instance the larger Bench on the same evidence acquits Naimatullah and settles the controversy as to what rule or principle in the matter of burden of proof of a plea of alibi is to be applied ; whether it is for the prosecution to disprove it or for the accused to prove the same ; and whether even if the accused is unable to successfully prove it can be urge that at least it casts a doubt on the prosecution case (these being the legal points on which there took place a division between the learned Judges regarding the case of Naimatullah)-then a question would arise whether the case of Aminullah has also been dealt with according to those principles and whether in the face of that develop--ment, the same evidence could be relied upon against Aminullah without any independent corroborating material in that respect on the record. From this point of view it is not justified to separate his case at this stage."

The detailed reasons for this decision are incorporated in the judgment of the Court, which has been reported as Aminullah v. The State (P L.D 1981 SC 325

3. We have now heard the arguments of the learned counsel appearing for the parties and this judgment will now dispose of both appeals.

4. The unfortunate occurrence, alleged to be the act of patricide on the part of the two brothers, who are appellants before us, took place on 26-10-1971, at about 4 a. m. In which Haji Muhammad Yousaf Jan deceased lost his life. It is alleged that it being the month of Ramazan, the deceased had got up from sleep and was taking his sehri meals along with his spinster sister Mst. Sheereen Janan, a seventy years old lady, his second wife, Mst. Jannat Bibi and his young daughter Mst.

Nuzhat Shaheen, in the kitchen of his house. The appellants, who are the offspring of the deceased from his first wife suddenly appeared at the scene along with two unknown' persons, and opened fire at the deceased with their guns. The first shot was fired by appellant Aminullah, the elder brother and the second shot by Naimatullah, 'as a result of which the deceased was killed on the spot. The two unknown persons were not identified. The appellants fired some more shots in the air and then all the four culprits decamped from the scene.

5. Mst. Sheereen Janan promptly proceeded in a car to Police Station, Parang, situated at a distance of two furlongs from the scene of occurrence, and lodged the F. I. R., which was recorded at 4.30 a. m. By S. H. O Muhammad Aril`. The Investigating Officer, then left the Police Station at 5-15 a. m. And arrived at the scene at 6 a. m. He prepared the injury sheet and the inquest report and sent a Constable for the Doctor, who came and held the post-mortem examination to the house adjacent to the house of the deceased.

6. In the course of his investigation, the Investigating Officer seized blood-stained earth. a blood- stained mazri mat, a blood-stained dari and a blood-stained carpet from the kitchen floor of the house where the incident is said to have occurred. The Serologist later on confirmed that .These articles were stained with human blood. .The Investigating Officer further recovered a pellet Exh. P. 2 imbedded in the back wall of the kitchen. He also secured three pellets, one .303 bore empty. Shell, one .12 bore empty shell, and one .12 bore missed cartridge from the spot. Two more pellets and a lead bullet were also recovered from underneath the mazri mat. A .60 Watts electric bulb in working condition was also secured from the kitchen.

7. After the initial investigation, the Investigating Officer searched for the appellants but there was .

No trace of them. He, .Therefore, obtained warrants of their arrest under section 204 of the Code of Criminal 'Procedure which were entrusted to Foot-Constable Ghulam Habib (P. W. 6) for execu-- tion. The latter could not, however, secure the arrest of the appellants in spite of search in their village and surrounding villages and accordingly the warrants were returned unserved. A proclamation was, therefore, issued under section 87 of the Code of Criminal Procedure against the two appellants which also failed to produce any result. Appellant Aminullah then appeared before the S. H. O. On 12-11-1971, but as he was armed with a bail order, he could not be placed under arrest. After rejection of his bail application finally, be did not surrender and was eventually arrested at Rawalpindi on 26-3-1972. Similarly, appellant Naimatullah also appeared before the S. H. O. Having already obtained bail before arrest in his favour, on 16-11-1971. His bail was also not confirmed, but he appeared before the S. H. O. On 29-12-1971 and was arrested..

8. On completion of the investigation, a charge-sheet was submitted against the appellants, before a competent Magistrate, who after inquiry committed them to the Court of Session for trial and the appellants were convicted under section 302/34 of the Pakistan Penal Code for the murder of their father Haji Muhammad Yousaf Jan, and each was awarded the sentence of death by the trial Court.

9. In the F. I. R., the motive for the crime was cryptically disclosed to the effect that there was a dispute over the property between the deceased and the appellants. At the trial further details were disclosed in the evidence as to motive, saying that on 28-7-1971, the deceased had made a gift of 275 kanals and 12 marlas of land in favour of Mst. Farasat Yasmin and Mst. Nuzhat Shaheen P.

W. Daughters of deceased by his second wife, Mst. Jannat Bibi P. W. Evidence was also produced that on 20-1-1972, appellant Aminullah applied to the Member, Board of Revenue, Government of NWFP, Peshawar, for taking the estate of his father under the superintendence of the Court of Wards on the ground that his father was rendered mentally infirm and had started to dissipate his property which he was incapable of managing. It. Was further stated in that application that the mental infirmity of the old man was being exploited by his second wife, the step-mother of the said appellant and that due to her undue influence, the father had developed hostile attitude towards his sons and a daughter born out of his first wife who had died long back. The said appellant also objected to the sanction of Mutation No. 335. In his statement in the trial Court, Aminullah appellant admitted having made this application but . Otherwise, both the appellants denied the motive alleged against them as well as their abscondence. They also denied the prosecution allegations against them and. Both set up a plea of alibi. t 10. The prosecution in support of their case examined the three lady witnesses, Mst. Sheereen Janan (P. W. 1), Mst. Janet Bibi (P. W. 2) and Mst. Nuzhat Shaheen (P. W. 3) as eye-witnesses of the occurrence. Ghulam Habib; F. C. (P. W. 6) was examined in regard to the process issued for procuring the arrest of the appellants and their abscondence. Mubarik Shah, Patwari (P. W. 7) and Fazal Hamid, Naib Sadar Kanungo (P. W. 8) were produced in support of the motive with regard to the transfers and mutations made at the instance of the deceased in favour of his two daughters.

11. The appellants denied the prosecution allegations and set up a plea of alibi in their 342, Cr. P. C.

Statements made before the Committing Magistrate and the trial Court

(1) Aminullah Appellant- Before the C. M. : `.`I was in Bahawalpur Cantt. On the night of occurrence and. When I came to know of the false charge against me I applied to the Court of Session for bail before arrest but on the day of hearing I became seriously ill and could not pursue my application. Later on I was- called up for service. To the Army at Chaklala from where the police arrested me. During the investigation I produced certified copy from the Guest Register of the 76 Field Regiment, Bahawalpur Cantt. And the, police went to Bahawalpur to ascertain the truth of my statement. I had no ill-will against my father who brought about my marriage with huge expenses about 15 years ago, and he gifted me his entire land at Baly Koroona, a hamlet owned by him and since then I was residing with my wife there, looking after my agriculture. In fact my deceased father mutated the share of the land of my two brothers Hakimullah Khan and Masoodullah Jan a month prior to this occurrence. My step-mother was angry about this gift and she was responsible for the murder of my father through hired assassins. I am innocent and falsely charged with a view to prevent us from prosecuting the case of our deceased father against the persons who were hired for the purpose by our step-mother. I will give a more detailed statement before the trial Court."

Before the trial Court : "I had started from my village on 25-10-1971, for Lahore from where I had gone to Bahawalpur. I wanted to purchase an electric cane crusher. I owned some amount to my brother-in-law, Lt.-Col. F. G. Khattak, who had been recently transferred from Quetta to Bahawalpur.

I did not know his place of residence in Baha--walpur. I went to his Regiment's Headquarter at Bahawalpur. I met a Sub. Major and a Clerk to know about the residence of my aforesaid brother- in-law. They wanted to ascertain my identity because it was emergency at that time and every sort of precaution was taken by the Army people. They gave me a register in which I entered my name and other particulars with my own hand. They contacted the residence of my brother-in-law on phone and I was told that an orderly would be waiting for me near the Circuit House who would lead me to the residence of my brother-in-law. My statement recorded by the Committing Magistrate be considered as part of my present statement. My father had given me land in village Chitral (Bali Karoona) and I was living there along with my family.

1 had received a notice from the army to join my Unit prior to rejection of my application for bail before arrest. I had gone to the army in compliance with the said notice, and had not disappeared."

(2) Naimatullah appellant Before the C. M. : "I did not abscond. I had gone to Karachi. I was admitted in Arshad Clinic at Karachi on 25-10-1971, from where I was discharged on 13-11-1971, after an operation. On arrival at Peshawar I applied for bail before arrest to the Additional Sessions Judge. I then appeared before police and gave my statement to them with relevant documents, showing my presence at Karachi during the days of occurrence. On rejection of my application by the Sessions Judge I applied to the High Court for bail. This was also rejected. I intended to appear before the police for arrest but suddenly my daughter fell ill and I had to delay my appearance before the police for some time.

I had no motive to kill ' my father. He gave me the highest and the best possible education. He educated me for ten years in Europe. He spent collosal amount on me. On his inducement I came to Pakistan in 1967. He got me married and gave thirty jaribs of land, a Serai and Pacca house to my wife and maintained me throughout. During this period I had gone back to Europe. He then sent my wife after me with Rs. 10,000 so that we returned to our country. About 8-10 days before this occurrence, my wife went to Peshawar to her mother's house because my wife was in the family way. The medical expenses were borne by my father. On 25-10-1971. I had executed a power of attorney in the name of my brother-in-law at Karachi. I will give more detailed statement in the Court of Session if needed."

Before the trial Court : "On 26-10-1971, I was away to Karachi in con--nection with my private work. I fell ill there. I had pain in the stomach. On 25-10-1971, I executed a power of attorney, at Karachi in favour of Major Sikandar Hayat Durrani, which was attested by a Notary Public. I produce the original powar of attorney which is Exh. D.

6. The power of attorney bears my signature as also of Major Sikandar Hayat. In the evening on the same day i. e. 25-10-1971, I went to Arshad Clinic and was admitted there as an indoor patient. I remained in the said Clinic for about 3 weeks. I produce the summary sheet regarding treatment recorded by Doctor Viqar Zaidi which is Exh. D.

7. I was operated upon in the Clinic on 27-10-1971. 1 had paid a sum of Rs. 1,215 as charges for my treatment and the receipt about payment is Exh. D.

8. I was discharged on 13-11-1971, and was advised to have a dressing vide Exh. D.

9. The medicines prescribed for me at the time of operation are mentioned in Exh. D.

10. I did B. Sc. In Chemical Engineering, from Mcgill University, Canada: I served for six years in Europe. Thereafter I went to London and remained there in a college for eight months for doing membership of Royal Society of Arts in computer applications in Commerce and Industries. I had not absconded.

I had not disappeared. I was at Peshawar and was having a dressing of my wounds as advised by the doctor. I had also moved an application for bail before arrest in the High Court.

I had pleasant relations with my father. I was not annoyed' with him due to transfer of property. He had sent my wife after me to bring me to Pakistan. Ht had paid for her journey. I came back with my wife to Pakistan at the instance of my father. About 8/9 days prior to the occurrence my wife shifted to the residence of her mother at Peshawar because she was in the family way. The expenses of my wife's treat--ment were borne by the deceased."

About Mst. Sheereen Janan both appellants stated that she is a helpless lady and depends for her livelihood and shelter on Mst. Janat Bibi, their step--mother and further appellant Aminullah stated that she was under the influence of Mst. Janat Bibi, whereas the latter and Mst. , Nuzhat Shaheen were deposing against him due to their being his step-mother and step-sister respectively.

12. As indicated above, there was cleavage of opinion between the learned Judges who originally heard these appeals in this Court, on the question of law regarding the extent of the burden of proof which lay on the accused, who sets up a plea of alibi. The counsel appearing before us did not endeavour to address arguments on this question. However, before dealing with the evidence adduced by the prosecution and the defence at the trial, it will be appropriate briefly to state the position of law bearing upon this question.

13. The divergence of opinion between the learned Judges stemmed from their interpretation .

And application of section 103 of the Evidence Act, to criminal cases. Section 103 lays down that the burden of proof as to any particular fact lies on that person who wishes the Courts to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. Salahuddin Ahmed, J. (as he then - was) and Muhammad Yaqoob Ali, C. J. (as be then was) concurring with him, relying on Surat Chandra Dhupi v. Emperor (1), Suraj Bakhsh Singh v.

Emperor (2) and Muksed Molla v. The Crown (3), held the view that under section 103 of the Evidence Act, the onus lay upon the defence to prove its plea of alibi affirma--tively. This view was held by the learned- Judges, notwithstanding the fundamental principle underlying our system of criminal jurisprudence that "the onus of proving its case against the accused lies entirely upon the prosecution and it . Does not shift at any point of time", which was expressly adverted to. All the learned Judges, however, substantially agree on the principle that the Court has to judge the guilt or innocence of the accused uninfluenced by the consideration that the accused had failed to prove his plea of alibi, on the basis of the prosecution evidence, so that if the prosecution fails to prove its case upon its own evidence or the accused succeeds in raising reasonable doubt, the benefit of acquittal must be given to him. The other learned Judges, namely, Dorab Patel, and Muhammad Akram, JJ (as they then were) after an extensive review of the case-law (if I may say so wit respect) bearing on the question, held the view that the onus of proving affirmatively his alibi does not lie upon the accused, to the extent and in the sense onus lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. Therefore, the accused, in order to succeed on his plea A of alibi need only to produce evidence sufficient to raise in the mind of the Court a reasonable possibility that he may be at the place where he asserts he was, rather than at the place of the crime at the time of occurrence. In such a case a reasonable doubt will have arisen as to his participation in the commission of the crime, the benefit of which, must be given to him. The Court, therefore, has to examine the evidence of the prosecution in juxtaposi--tion with the defence evidence of. Alibi, and then upon the whole evidence to judge whether the accused can be found guilty beyond reasonable doubt and to convict him only when it is so possible. I am in respectful agreement with. The enunciation of the correct legal position; on the question of onus of proof on an accused person under section 103 of the Evidence Act, by Muhammad Akram, J. As under :- "It was rightly remarked in R. v. Lobell (1957 All E R 734) relied upon by my learned brother Salahuddin Ahmed, J. That "there is a difference between leading evidence which would enable a jury to find an issue in favour of the defendant and in putting the onus on him. The truth is that the jury must come to verdict on the whole of the evidence that has been laid before theca." In my respectful opinion in the reported case of Mukshad Mulla and others v. The Crown PLD 1957 Dacca 503), noticed by my learned brother, Salahuddin Ahmed, J., the Court failed to bear in mind this difference and I am, therefore, unable to approve of some of the observations made on reference to section 103 of the Evidence Act in that case. Similarly on principle, I am unable to appreciate the observations in the reported case of Suraj Bakhsh Singh v. Emperor. to the effect that because there is satisfactory evidence that "a man committed a crime at a certain place arid at a certain time, a Court will never find any difficulty in rejecting an alibi he may seek to establish, even if that alibi be supported by what, on the surface, would appear to satisfactory evidence." There is always a rational approach in all cases to the entire evidence viz. That produced by the accused in support of his plea of alibi and that by the prosecution in support of his conviction. The conclusion as to the guilt or innocence of the accused must rest on the basis of the entire evidence considered and weighed as a whole for and against the prosecution. If in the process a reasonable doubt is raised as to the complicity of the accused the benefit of doubt must be allowed to him." ,

(1) AIR 1934 Cal. 719(2) AIR 1933 Oudh 369

(3) PLD 1957 Dacca 503 In the light of the aforesaid principles, I would now proceed to examine the prosecution evidence first.

14. The prosecution case rests mainly on the ocular testimony of the three ladies Mst. Sheereen Janan (P. W. 1), Mst. Janat Bibi (P. W. 2) and Mst. Nuzhat Shaheen (P. W. 3) for which corroboration is sought from the medical evidence, the evidence of motive and recoveries made at the scene of occurrence. Reliance is also placed on the evidence of alleged abscondence of the appellants.

15. Taking up first the ocular testimony, it may at the very outest be stated that all the three witnesses were natural witnesses, as it has been established in the evidence that at the relevant time they lived with the deceased in his house. But it was contended on behalf of the appellants that the abscondenee of the appellants not having been proved and there being no other confirmatory evidence of circumstances connecting the appellants with the crime, their conviction on the sole basis of the ocular testimony of the three witnesses, is not sustainable since their evidence is full of discrepancies, improbabilities and contradictions. The evidence of these witnesses may, therefore, be briefly summarised.

Mst. Sheereen Janan (P. W. 1), is the star witness of the prosecution and her testimony, seems. To have weighed considerably with the trial Court, as well as the High Court in tipping the balance against the appellants. She was the real sister of deceased and has stated that the latter had two wives, the first of whom died 25 years before, from which he had four sons and one daughter. The appellants are the sons of the deceased from the said first wife. The deceased married for the second time with Mst. Janat Bibi two years after the death of his first wife and was begotten from her two daughters, namely, Farasat Yasmin and Mst. Nuzhat. Shaheen (P. W. 3), the latter being unmarried. She further stated that the deceased had transferred 69 jaribs of land in favour of Nuzhat Shaheen and Farasat Yasmin about two months prior to the occurrence, over which the appellants were annoyed. The deceased had also given 60 jaribs of land to Aminullah appellant in the area known as `Chitai' where the appellant used ,to reside. Naimatullah appellant was educated in Germany, was got married and brought back by the deceased and the expenses of his education, passage etc. Were borne by him. The wife of Naimatullah appellant was given 30 jaribs of land ; a sarai and a pacca house in dower by the deceased. Aminullah appellant, was stated to have made an application against the deceased that he was insane, copy of which is on the record as Exh. PZ/1. The occurrence took place in the month of Ramazan; at about 4 a.m. In the kitchen of the house when the deceased along with the three lady witnesses was taking Sehri meals. The electric bulb was burning in the kitchen when appellants armed with topaks suddenly appeared. Aminullah appellant is then said to have fired the first shot at the deceased, after having entered the kitcheq. Najmatullah appellant shot with his topak then in the presence of the three witnesses. The deceased received the shot fired by Aminullah appellant on his chest and that fired by Naimatullah appellant on his thigh. Two electric mercury rods were burning at that time in the courtyard. She further said that there were two other persons with the appellants also armed with topaks who stood in the courtyard but took no part in the occurrence. The witnesses, however, did not identify these persons. The appellants, after firing the shots went out of the kitchen and fired some more shots in the courtyard and then decamped from the scene. Mst. Sheereen Janan then went to the Police Station, Parang, and lodged the report.

The evidence of Mst. Janat Bibi (P. W. 2) is substantially the same. She, however, added that Mst.

Shahida, who was their maid-servant had prepared the sehri meal and had left for her house. The main gate of the house was open. Similarly, Mst. Nuzhat Shaheen, who was aged 10 years at the time of her evidence, also gave substantially similar statement. She further stated that Naimatullah appellant used to reside with them until about 10 to 15 days prior to the occurrence when he had left for another place. Both the last-- mentioned witnesses, however, stated that the appellants had entered the kitchen at the time shots were fired by them.

16. Now these seems to be considerable evidence on record that the deceased was done to death at the scene of occurrence mentioned by these witnesses. The Investigating Officer found the dead body lying in the kitchen, he found the mazri mat and the carpet spread on the kitchen floor stained with blood, later on confirmed to be of human origin ; he secured blood--stained earth from the spot and also found a pellet from the back wall of the kitchen and three pellets, two empty shells and a missed cartridge from the spot. All this evidence sufficiently establishes that the occurrence took place in the kitchen. However, it was contended that circumstances on record indicate that the actual time of the occurrence was sometime during the night before sehri time, so that none of the witnesses was present at the time of the occurrence. In this connection it was pointed out that the F. I. R. Was lodged at 4-30 a. m. And that it was highly improbable to secure the services of a driver at that time to take the complainant to the Police Station. Further doubts were cast on the assertion of Mst. Sheereen Janan that she had gone to the Police Station and it was suggested that the S. H. O. Turned up at the scene of his own much later, when the case began to be recons--tructed. In this connection Mst. Sheereen Janan stated that C. W. Muhammad Yousaf Khan a tenant of the deceased had gone with her to the Police Station for making the report, and that the Investigating Officer had come to the house subsequent to her returned from the Police Station. She further stated that she had gone in their own car to the Police Station but she did not know the driver.

17. Muhammad Yousaf Khan (C. W. 1) in his evidence stated that on the morning of the occurrence after taking sehri meal when he was about to sleep, he heard' noise outside his house, and wanted to go out but he found the door of his house chained from outside. There were many people including boys, men and women standing outside, who unchained the door at his request. When he went out he was approached by "a woman" whose face was covered and she requested him to accompany her to the Police Station for making report. Lie, therefore, accompanied her in a car. In his cross-examination by the prosecution he admitted that he knew Mst. Sheereen Janan as being the sister of the deceased by name, but had never seen her before because she observed pardah.

He,- however, admitted that she had disclosed to him on the way to the Police Station that the deceased had been killed by the two appellants. In his cross-examination to the defence, however, be stated that he did not know the woman whom he accompanied to the Police Station nor that she was going to make a report for murder. He further stated that she was accompanied by another person in the car who belonged to village Charsada and was a shopkeeper living away from the house of the deceased. He said he was addressed by the lady by his name and said that she had not mentioned the presence of the two unknown persons in the company of the appellants. He was contradicted with his statement before the Committing Magistrate where be had stated that he made no inquiry from Mst. Sheereen Janan, nor she had told him about the occurrence. As regards the driver of the car he stated that he did not know the name of the driver but described him as an outsider. About the shopkeeper, who wag the third man in the car, be stated that his name was either Fazal Karim or Abdul Karim.

18. Coupled with the above-mentioned circumstances, is the evidence of the Investigating Officer Muhammad Arif Khan (P. W. 4) who has stated that the Police Station was two furlongs away from the scene of occurrence and that it took him half an hour to record the report. Then after putting on his uniform he left for the spot and reached there at 6 a. m. According to his diary, he left the Police Station at 5-15 a. m. And he contradicted the com--plainant's statement. In saying that he had accompanied her from the Police Station to the scene of occurrence.

19. It was argued that in the aforesaid facts and circumstances it is highly improbable that the report could have been registered within such a short time, in the faze of several difficulties which would inevitably cause some delay to occur. Firstly, the surviving members of the family of the deceased were. All women, the deceased bad no driver and used to drive the car himself. Mst.

Sheereen Janan in accordance with her social status and position could not obviously walk down the distance on foot as she actually did not, according to her version, although the distance was only two furlongs. To secure a person -who could drive the car without much effort and also to find out the key of the car are circumstances which have not been fully explained. It was not consistent with the status of Mst. Sheereen Janan to permit a person to drive her car, whose identity has not been disclosed in the evidence but who was apparently a stranger ,and no effort was made by the Investigating Agency to secure him. The contradiction in the testimony of the complainant and the Investigating Officer on the question whether he returned immediately with the complainant is also a circumstance reflecting upon the uprightness of the Investigating Officer. If he came back in the car after recording the F. I. R. Which is remarkably a short document, he should have reached the scene of occurrence much before 6 a. m. Even if he had left by foot at 5-15 a. m. He could not have taken more than 10 minutes to cover the distance of two furlongs and yet he took 45 minutes to reach the house of the deceased.

20. The above discourse is consistent with the probability that the F. I. R. Was recorded on the arrival of the Investigating Officer at 6 a. m. And if this be so, then the element of deliberation cannot be excluded. I fail to see why the identity of two unknown persons was foreclosed by all the three witnesses as beyond physical description when they were seen along with the named assailants exactly at the same spot which was brightly lit. It is further impossible to believe that they would not have noticed their physical features had they witnessed the occurrence. This feature consequently foreclosed the investigation so far as they were concerned for a purpose which has not come on the surface and this appears to be a suspicious feature which cannot go unnoticed without having some bearing on the prosecution case in so far as these named were braketed with them.

21. The time of the occurrence could have been established by the evidence of the driver and the other occupant of the car but none was produced as witness, Muhammad Yousaf Khan was given up by the pro--secution as an unnecessary witness but was examined as a Court Witness at the request of the defence. Due to the discrepancies and contradictions in his evidence, the High Court held him to be unreliable witness endeavouring to satisfy both sides. It is highly unnatural for Muhammad Yousaf not to have known that the murder of such an important personage like the deceased had taken place, as it is natural for the crowd to be aware of the incident which had gathered in front of his house situated inside the outer compound of the enclosure surrounding the house of the deceased. In such circumstances it is 'difficult to place any reliance on his testimony as he went to the extent of saying that he did not know the woman, whom he had accompanied to the Police Station and as the nature of the report she was going to lodge.

22. Having rejected his evidence as unreliable, I am unable to agree with the view of learned Judges in the High Court that his evidence, however, clearly proved that the occurrence took place at Sehri time and that he accompanied the complainant. Similarly, the learned Judges in the High Court disbelieved the statement of the Investigating Officer that hg accom--panied Mst. : Sheereen Janan after recording the F. I. R. The effect of these contradictions and improbabilities has not been given due weight and consideration. Another circumstance that requires consideration in this behalf is the fact admitted by the Investigating Officer that the F. I. R. In this case was the only report of a crime registered at the Police Station on that day, so that the report could be recorded at any point of time with impunity embodying the- suitable time and hour on that date. The Court ought to have viewed the investigation with greater caution and scrutiny due to the unexplained delay that occurred in commencing the investigation and particularly as to the time of the occurrence. If the evidence of Muhammad Yousaf Khan C. W. And the Investigating Officer is excluded from consideration, the only other corroboration on the question as to the exact time of occurrence would .Have been provided by the medical evidence.

23. In regard to the medical evidence also there are some extraordinary circumstances which attended the holding of the post-mortem examination and the recording of the report by Doctor Rafiuddin P. W. 5, He has stated that the body was accompanied by F. C. Gul Bahadur and was identified by Shad Muhammad (P. W. 9). The post-mortem examination was done at 8 a. m. The Doctor did not state anything in his examination-in-chief as to the place where the post-mortem examination was conducted. But in the cross-examination, he disclosed that it was done in the house adjacent to the house of the deceased in presence of the Sub-Inspector. The Doctor states that he made the entries regarding the injuries on a plain paper because there were no printed forms available in Charsada. The stomach of the deceased, according to the Doctor was full of food but the stage of digestion was not noted by him. He was, therefore, unable to contradict the suggestion that the food was in semi-digested form. The only thing he could say about the condition of the stomach contents was that the food had not started passing to the intestines which takes place when it is digested., According to the Doctor the probable duration between injuries and death was 30 minutes, -which opinion was based admittedly on the "state of the wounds and the state of the body of the deceased". The Doctor said that he had examined the dead body of the deceased in his house with the permission of the Investigating Officer verbally taken by him, and also the relatives of the deceased had requested him to do so and he had done it "as a matter of favour because an old lady present on the spot had requested me for this". Great emphasis was laid on behalf of the appellants on this extraordinary adopted by the Doctor.

Reference was made to the evidence of Gul Babadur (P. W.) whose statement was transferred to the record by the trial Court, to -the effect .That he had accompanied the dead body of the deceased from his house to the mortuary at Charsada. It was urged that if the body had been taken to the mortuary in what circumstances was it brought back to the house and why did the Doctor attempt to suppress this fact in his examina--tion-in-chief? The Investigating Officer categorically denied that he had called the Doctor or allowed him to examine the dead body in the house. According to rule 22.36 of the Punjab Police Rules, the District Magistrate's permission is required for conducting the post-mortem examination at a place outside the mortuary.

Admittedly, this procedure was not complied with. There is also conflicting evidence on the question as to who called the Doctor. As already stated the Investigating Officer disowned the responsibility of mailing the Doctor. Mst. Sbeereen Janan only stated that the Doctor was summoned to the house and admittedly the dead body was examined by the Doctor in the presence of the Investigating Officer. It is, therefore, not clear why this extraordinary course was adopted but at least what appears fairly clear is that all this was done as a matter of favour to the relations of the deceased, particularly an old lady most probably Mst. Sheereen Janan herself. This reflects upon the indifference of the Medical Officer especially in the context of the fact that, being a responsible Officer conversant with the nature of his duties, he chose to record notes of his examination on a plain piece of paper without taking care to record the crucial fact relating to the state of digestion, which invariably is an important column in the printed post--mortem forms. One of the possible means of arriving at a correct conclusion with regard to the exact time. Of death of the deceased was, therefore, totally lost. Unfortunately, the learned Judges of the High Court dismissed this aspect of the case on the basis of a general observation that "it is common knowledge as deposed to by the Doctor as well that respectable people in this part of the country do not allow the dead bodies of their relations to be taken to the mortuary for examination". It is quite possible that the body was first taken to the mortuary and was then brought back to the house for being examined by the Doctor who must have brought along the necessary medical instruments for the purpose. The glaring inference at the .Minimum from these facts on record, would be that the Doctor as quite favourable inclined towards the relations of the deceased and particularly to Mst. Sheereen Janan so that his ordinary position as expert witness has been eroded to some extent. Another aspect of the matter which cannot escape attention is that the Investigating Officer would not hesitate to hide any circumstance which in any way reflects adversely upon his interests as an Investigating Officer.

24. 1t was urged on behalf of the appellants that the ocular testimony of the prosecution witnesses was not consistent in so far as to the place from where the shots were fired. According to the . F. I. R.

The shots were fired by the appellants when they stood in front of the door of the kitchen but C the complainant and the other two witnesses .Positively stated in their evidence that they did so while they were inside the kitchen. This improvement was obviously made to make the version consistent with the charring found on the clothes - of the deceased and further to make the identity certain.

The High Court did not consider it as an improvement as it was of the opinion that having regard to the length of the barrel of the guns, the small variation in the distance could not be pivotal. It is the credibility. Of the witnesses which was being tested and, therefore, such discrepancy would reflect on the overall worthiness of the ocular version when it was asserted earlier that they stood outside the kitchen in front of the door along with two other unidentified persons and fired at the deceased.

25. Another aspect of the ocular evidence referred to by the learned counsel for the appellants relates to non-availability of other independent witnessess who were most likely to come at the scene of occurrence in the context of the prosecution version. It is in the evidence that at least two maid-servants were present in the house immediately before the occurrence but strangely, are said to have left the place so that they did not witness the killing. It is in the evidence of Mst.

Sheereen Janan P. W. D. That one Noor Jehan was their maid-servant who bad called the deceased and the P. Ws. For meals after she prepared the same. Mst. Jannat Bibi (P. W. 2) on the other band, stated that Mst. Shahida was the maid-servant who prepared the sehri meal and had left for her house. Giving further details she stated that the maid-servant lives with her children in one of the houses situated inside the main gate of their house and had left the house after preparing sehri meals. These two maid-servants could have served, had they been present as reliable witnesses at lest to corroborate the evidence of the eye-witnesses but their removal from the scene deprive the prosecution case of valuable evidence. There may be good reasons for them to have left the house but normally one or the other servant would be expected to attend the inmates while they took their meals. However, no plausible explanation has been given for their departure from the scene just before the occurrence. In addition it is in the evidence that large number of persons were living in the vicinity, still not a single person from the locality was produced in corroboration of the statement of the lady witnesses. Mst. Sheereen Janan (P. W. 1) has disclosed in her evidence that there were. Two big gates of the house, one towards the north and one on the south, both of which are chained from inside at night time. There are houses on the southern and northern sides of the house. The entire abadl inside the first main gate is occupied by the tenants which comprises about 12 to 13 houses and at the time of the occurrence, they were occupied.

Having regard to the fact that the offence was committed with fire-arms, which were not only used for the killing but some shots were fired in the air, it seems fairly certain that these shots must have attracted the neighbours. Mst. Sheereen Janan did state that they had raised alarm after the occurrence on which only womenfolk had responded and had come to their house. Even if it is assumed that despite the traumatic situation, the men-folk living in the houses inside the main compound, refrained from entering the house on account of 'the womenfolk of the deceased family observing Pardah, it is natural that they must have come outside the house and must have been informed by their womenfolk as to what had happened. Mst. Jannat Bibi has clearly stated that she had, on inquiry charged the accused for the offence before the people. Several cousins of the deceased were living in the vicinity out of whom at least one Muhammad Ali, as deposed by Mst. Nuzhat Shaheen (P. W. 3) was living at a distance of one furlong from the house of the deceased. He or his son who seemed to have. Gone to the, house subsequently before the coming of the Investigating Officer, also does not figure as a witness who may have immediately come upon hearing the gun reports or the alarm raised by the witnesses, which would be consistent with ordinary course of human conduct. This is particularly so in view of the fact that information was given on telephone about the occurrence to Shad Muhammad (P. W. 9), a cousin of the deceased living at a distance of seven miles. The mention of two unknown culprits in the F. I. R. Who are said to have been standing in the courtyard armed with gulls at the time of occurrence raises some questions which appear to be unexplainable. In the F. I. R. Mst. Sheereen Janan had stated that these two persons were not only not known to her but that she would not be able to identify them at all. Thus for unknown reasons she shut the door on further investigation as to the identity of these persons, although as the sister of the deceased she should have been taken that these persons be traced out because they had participated in the occur--rence. All .That has come out in the evidence is that these persons were wearing Khaki dresses and stood behind the assailants in the courtyard which was lit up with tube lights in which it should have been possible to see their faces clearly. Muhammad Yousaf Court-Witness stated that he was not told that there were two other persons in the company of the appellant at the time of the commission of the crime and Shad Muhammad (P. W. 9) deposed that the people who were sitting in the Hujra when he arrived at the house of the deceased, were saying that the latter was killed by the two appellants "who had a third person as well with them who was standing in the lane. It has been urged on behalf of the appellants, why these two persons were introduced in the prosecution story when they could not be identified? The suggestion was that in all probability this was an unwitnessed incident and in order to give a reasonable colour to the prosecution case they were just introduced as dummy accused. It was forcefully argued that normally the appellants would be inclined to hide their identity, remaining in the background and would ask the other two unknown persons to accomplish the act of killing, but the prosecution version seems to show that the appellants did not take any precautions to hide their identity, nay on the contrary after ruthlessly killing their own father they made a show of violence, by firing shots in the air as though to celebrate the event.

Such conduct should be known to people with ordinary intelligence to attract unnecessary attention, which seems rather unreasonable and improbable. It has to be borne in mind that patricide in itself is a shameful act and under the Islamic Law in the event of it being established that the appellants were guilty of killing their father would deprive them of the right to inherit from their father, and thus the very bone of contention and the object of the murder would be lost. The learned Judges of the High Court disposed of this matter on a general observation that these two persons must have been brought to keep my intruder at bay or to accompany them in their car to Peshawar where most probably they must have been running after the occurrence, as going to Peshawar from Charsada at night requires an extensive precaution against robbers and decoits. It was further observed that these persons may be servants or friends, probably the car had to be left at Peshawar or they were: needed to issue telegrams to Karachi that the accused had left Peshawar by plane. A further reason assigned was that it is usual in such circumstances for strangers to refuse to commit a murder of this nature as ordinarily friends or servants would have told the appellants to carry out the killing of their own father with their own hands. Finally, it was suggested by the learned Judges that hired assassins do not commit murders in the house of their victims but look for safe places to perpetrate the crime, which would have involved considerable delay and the accused most probably could not wait for long. It may be pointed out with respect to the learned Judges, that this is a purely conjectural line of reasoning, without there being a shred of evidence to support it. Be that as it may be, it appeared quite clear that the Investigating Agency did not pursue the matter and allowed it to remain at that without making an effort to find out the two unknown persons.

26. In the F.

1. R. The version of Mst. Sheereen Janan is that the deceas--ed and she were taking sehri meals when the occurrence took place. She has not stated that Mst. Jannat Bibi and Mst.4Nuzhat Shaheen were also taking their meals. Even in her deposition in Court Mst. Sheereen Janan has not stated that the other two ladies were also taking their meals. The other two lady witnesses have, however, stated that all of them were taking their meals along with the deceased.

This is also an improvement in the prosecution version. If Mst. Sheereen Janan and Mst. Nuzhat Shaheen were not taking their sehri meals with the deceased, there may have been questions raised about their presence at the time of occurrence.

27. Lastly, it has been pointed out that the Investigating Officer did not secure dishes and plates from the scene of occurrence and if the prosecu--tion version that the deceased was in the act of taking his meals when he received the fatal shots is correct, the probabilities would be that these dishes would be smeared with blood. The absence of this important piece evidence also reacts on the testimony of witnesses that the incident took place at sehri time. Additionally, it would appear normal conduct on the part of Mst. Sheereen Janan or the other two lady witnesses to rush to the assistance of the deceased when he received the injuries and 4a that case their clothes would have been stained with the blood of the deceased. But no such evidence has been produced and this circumstance also supports the argument on behalf of the appellants that this was an unwitnessed crime.

As there was no circumstantial evidence to justify the assertion of the prosecution witnesses that the deceased was busy eating his sehri meal, there--fore, it is more probable that the incident had occurred after the sehri meal was over and the deceased was resting on the carpet. The presence of two pellets and a lead bullet which found their way under the carpet, would thus be consistent with the causing of the injury on the inner side of upper part of right thigh with exit wounds on the outer aspect of right buttock while the deceased was resting on the carpet with his knee raised.

Necessarily, therefore, it would also follow that the witnesses may have turned up on hearing the shots from the adjoining rooms ; and the question would then be as to how far their testimony could be credible as to the identity of the assailants.

The trial Court and the learned Judges of the High Court believed the eye-witnesses generally and particularly found no reason to discard the testimony of Mst. Sheereen Janan who was the real aunt of the appellants. In this connection, the learned Judges of the High Court made the following observation :- "I cannot conceive even for a single moment that a real aunt, especially when she has no children of her own would falsely charge her real nephews for a serious offence like murder if she has the slightest doubt about their guilt."

28. It is true that no particular animosity has been established or suggested by the appellants which could motivate her to falsely implicate them. As already mentioned, in their statements the appellants merely stated that she is a helpless. Lady under the influence of Mst. Jannat Bibi and depends for her livelihood and shelter on her. As regards Mst. Jannat Bibi and Mst. Nuzhat Shaheen P. Ws., their having differences on the question, of property cannot be ruled out on their own showing. It is the case of the prosecution that the appellants were annoyed on account of the deceased having transferred lands in favour of Mst. Nuzhat Shaheen and her sister, who are step- sisters of the appellants. This difference and the strong objection raised by Aminullah appellant to this matter could not possibly have been taken to kindly by Mst. Jannat Bibi and Mst. Nuzbat Shaheen. The apprehensions raised in their minds on the gruesome murder of the decease can well be imagined and in this. State of their mind, it is natural for them to bear strong prejudice and animosity against them. These two witnesses cannot, therefore, be said to be independent witnesses. As regards Mst. Sheereen Janan, her blood ties with the appellants no doubt suggest a strong sentimental inclination towards the appellants which has to be taken into p consideration, but at the same time, the material discrepancies, suppression of facts and improbabilities in her evidence as discussed above, would require as a rule of prudence to accept her testimony with due caution and care and only if she is materially corroborated by independent evidence. Another important aspect of the case is that, whereas it is difficult to believe that a real aunt would falsely implicate her nephews in a murder charge, it is also difficult to believe that the sons would take to patricide without a strong motive. A motiveless patricide is, therefore, equally difficult to conceive of. In this context, it will be relevant to refer to the unfortunate impression created by her own conduct during the litigation in connection with case that seems seriously to reflect upon her image as a disinterested blood relation of the appellants. It has been brought to our notice that she had filed a revision against the judgment of the Sessions. Court in what appears to have been a prayer that the properties of the appellants should be confiscated but this revision was dismissed by the High Court. It can be will imagined the awful effects upon the families of the appellants before their case was duly concluded as they would be left helpless with nothing to fall back upon for their survival. Even up to this date Mst. Sheereen Janan is represented through counsel before us. These considerations seriously affect her dis--interestedness as a witness in the case.

The Courts below have accepted the ocular testimony and have held that it is supported by the evidence of motive And abscondence. I will, therefore, now examine these two pieces of evidence.

29. It may be stated that there is no direct circumstantial evidence to connect the appellants with the crime inasmuch as nothing incriminating was secured from their possession. The crime weapons have also not been secured either from the appellants or from elsewhere. The recoveries made at the scene of occurrence, although sufficient to establish that the deceased was killed in the manner stated by the prosecution at the spot, that evidence or the injuries found on the body of the deceased does not have the effect of con--necting them with accused sufficiently to inculpate them.

30. Before dealing with the evidence of abscondence, it may at once be stated that this Court in Mesal and another v. The Crown (1971 SCMR 239stated the law as to the evidentiary value of the evidence of abscondence in the following words :- "While the fact of an alleged offender having absconded may be regarded as providing some kind of support to another evidence which 'in itself is strong enough to sustain a conviction for the crime charged such conduct by itself never has the effect of remedying defects in the other evidence led to show participation in the crime. The reason is simple, namely that a man may wish to avoid the consequence of being reported against for the commission of a serious crime as ardently if he is not guilty as he might if he is guilty."

This view has been followed in a number of cases by this Court and although there are judgments in which abscondence has been held to furnish corroboration of the prosecution evidence, but the view taken in Mesal's case has never been overruled by this Court. It will, therefore, be reasonable td hold that. The question whether abscondence does provide corroboration to the other prosecution evidence would be a question to be decided on the facts!" and circumstances of each case. According to the prosecution case, the warrant of arrest (Exh. P. O. 1) for Aminullah appellant was issued showing his address as village Bhosa Khel, Charsada. The same address was shown in the endorsement on the proclamation issued under section 87, Cr. P: C. (Exh. P. O. 3). But before these documents were produced in the evidence, Aminullah had disclosed his address as village Baly Caroona in his statement in the Committal Court. Apparently these are two different places and no question was put to this appellant whether he lived in village Bhosa Khel. Ghulam Habib (P. W. 6) a Foot- Constable who was detailed for affecting the search for the execution of the warrant on Aminullah stated in his evidence that he had searched for the appellants 'in the villages noted in his report.

Admittedly, the proclamations were axed on the house of the appellants in village Charsada. The witnesses. Stated that the house of Aminullah appellant was pointed out to him by Amirullah, Lambardar, but the latter was not examined as a witness nor was the report produced in the evidence. It is not, therefore, established that the appellant was searched at his proper address in village Baly Caroona. It was suggested that the appellants did not attend the funeral ceremonies of their father. This was, however, not put as a circumstance appearing against them during their examination under sec--tion 342, Cr. P. C.

31. As regards Naimatullah, the question of his abscondence is linked up with his plea of alibi according to which he remained admitted in a hospital at Karachi from 25-10-1971 until 13-11-1971 and appeared before the S. H. O. On 16-I 1-1971. In the subsequent part of this judgment, I will deal with the evidence of alibi produced by this appellant, on which I have reached the conclusion that it raises a plausible explanation that he was confined in a hospital for treatment until the above- mentioned date. The evidence of abscondence does not, therefore, advance the case of the prosecu--tion.

32. Coming to the evidence of motive, the trial Court and the High Court have believed the prosecution case that the appellants had strong motive to kill the deceased as a result of the dispute between them over the property. According to the oral testimony of Mst. Sheereen Janan (P. W. 1), the deceased had transferred 68 Jaribs of land in favour of Mst. Nuzhat Shaheen and Mst.

Farasat Yasmin about two months prior to the occurrence and the appellants were annoyed with him on this account. In this connection, she stated, Aminullah appellant had given an application against the deceased (Exh. P7/1). This application is addressed to the Member, Board of Revenue, Government of N: W. F. P. Peshawar. After describing the large landed property owned by the deceased, in paras. 3 and 4 of his application, Aminullah stated as under:- ---3. But the age of my father .(being about 75 years), has caused him mental infirmity which coupled with 9thpr circumstances, has rendered him incapable to manage his affairs. He has also adopted a course of conduct likely to dissipate his property. His mental infirmity has occasioned his behaviour towards his family member, so severe that one of our brother had no alternative but to commit suicide to escape the mental tortures caused by such behaviour.

4. As to his conduct towards the dissipation of his property he aliena--ted to his second son 120 kanals of agricultural property along with other highly valuable built up property, though his son is a lawful heir entitled to a due share in his estate on his death. He has also now got entered a gift mutation No. 335, dated 27-7-1971, in respect of land measuring 275 kanals and 12 marlas situated in village Sur. Khatki, Tehsil Charsadda, in favour of his two daughters to the exclusion of other.

These alienations are not the last but one a part of the series to be continued till the liquidation of the entire property of my father. The sole object of these alienations is to deprive most of his lawful heirs from their due shares in his property in the event of his death."

The above two paragraphs from. The application enumerated the grounds icy support of the prayer made in the application. In the end, it was prayed that the properties of the deceased may be taken under the superintendence of the Court of Wards and also a prayer was made not to sanction mutation No. 335 until the disposal of the said application. It is pertinent to point out that in connection with the alleged dissipation of property by the deceased, Aminullah made a.

Reference to the alienation of 120 kanals of agricultural land along with other valuable built up property by the deceased to his second son, which will mean Naimatullah appellant. In this application, it was also asserted that the conduct of the deceased was "not a voluntary one but is based on his mental infirmity exploited by my step-mother in whose influence he has come."

The prosecution has examined Mubarik Shah, (P. W 7), Patwari of Charsada, who stated that the deceased had transferred an area of 32 kanals 10 marlas in the name of daughter Mst. Dilshad Begum out of 78 kanals and 9 marlus held by him in Mobal Charsada. This mutation was attested on 25-10-1971. Fazal Hamid (P. W. 8). Naib Sadar Kanungo, Charsada, stated that according to mutation 335 attested on 28-9-1971, the deceased had transferred 275 kanals 12 marlas in favour of Mst. Farasat Yasmin and Mst. Nuzhat Begum his daughters. He referred to another mutation No. 853 in favour of Hakimullah and Masudullah, the other two brothers of the appellants, which was made by the deceased on 7-9-1971, but was rejected on 9-3-1972 on account of the death of the deceased.

33. The above analysis of the evidence on the point of motive clearly indicates that Aminullah appellant was aggrieved with disposal of the property by the deceased to his presumptive heirs and particularly to his daughters from his second wife. Certain aspects of this matter cannot, however, be overlooked in order to examine the evidence of this application to the authorities as constituting motive for the murder: firstly, in making the application Aminullah was obviously adopting a lawful course for redressing his grievance; and secondly, from the terror of the application, the villain of the piece as reflected in the application was the step-mother Mst. Jannat Bibi and not the deceased who was said not to act as a free agent. But his mental infirmity was being exploited by his second wife. The objection to the transfer of part of the property to Naimatullah appellant is also significant. The mutation of certain property in favour of the other two brothers of the appellants was also not confirmed and it is in the evidence that it was finally rejected on account of the death of the deceased. The prosecution has, therefore, no doubt proved that there existed difference between Aminullah and the deceased over the disposal of the latter's property, which Aminullah wanted to prevent. But the question that requires to be determined is whether this dispute really furnished a motive for the ghastly patricide by the son, who wanted to succeed to the property of his father according to his lawful share on his death? In my opinion, therefore, a viewed in this context, this evidence is not sufficient to corroborate the ocular testimony and at any rate it will be unsafe to base a conviction in a capital charge on corroboration merely poised on the possibility that since Aminullah bad raised the dispute before the Revenue Authorities, he must have been responsible for the murder.

34. So far as Naimatullah appellant is concerned, however, there is not an iota of evidence that he had- any grudge against his father. There is nothing in the evidence to indicate that the relations between him and the deceased were in any way strained over any matter. On the contrary, it appears from the evidence of the eye-witnesses that he was educated for ten years in Europe by the deceased and was brought back by his efforts and got married at Charsada. When he went back to Europe again after six months of his ,marriage, . During which time be lived with the deceased, the latter again gave a sum of Rs. 10,000, to the wife of Naimatullah to bring him back.

Although on his return be was employed. At Karachi, his wife continued to stay with the deceased.

Thereafter he came to Islamabad and still his wife remained in the house of the deceased. It was only about 7 or 8 days prior to the occurrence that she left the house for Peshawar and that also in connection with her delivery. Even the hospital expenses for the delivery were provided by the deceased. It is not, therefore, understood how the prosecution witnesses inferred and from what circumstances that Naimatullah was annoyed with the deceased over the giving of land to the two daughters Mst. Jannat Bibi. The opinion of these witnesses is, therefore, wholly unsustainable on the material brought out in the evidence. It is not the case of the prosecution that he was in any way concerned with the objection to the mutation in favour of the two daughters of the deceased or to the move for the taking over of his property by the Government under the superintendence of the Court of Wards.

35. I have, therefore, reached the conclusion that the prosecution has failed to establish motive against Naimatullah appellant. The evidence on the contrary indicates that there were circumstances which would normally dissuade him from making a common cause with Aminullah appellant.

36. Finally, it remains to examine the pleas of alibi set up by the two appellants. In his plea of alibi, Aminullah . Appellant wishes the Court to believe that on the night of the murder he was at Bahawalpur Cantonment. He had left his village on 25-10-1971, for Lahore, from where he had gone to Babawalpur. He had gone to purchase a cane-crusher and the reason for his going to Bahawalpur Cantonment, was that his brother-in-law Lt.--Col. F. G. Khattak was posted there and he had to repay the loan he owed to the latter. Since he did not know his residence, he went to his Regiment Headquarters at Babawalpur and met a Sub. Major and a Clerk for ascertaining the address of his brother-in-law. They gave him a register in which he entered his name and particulars with his own hand. Thereafter after confirming on telephone with the residence of Lt: Col. Khattak, he was told to go to the Circuit House from where an orderly would lead him to the residence of his brother-in-law. Sub. Major Adalat Ali Khan (D. W. 4), is the only witness produced by this appellant in his defence. He produced the Guest Register of the 76-Field Regiment commanded by Lt.-Col. Khattak at Bahawalpur in October, 1971. According to the witness particulars of every guest coming to the Regiment were entered in this Register. He has supported the statement of Aminullah appellant that he had gone there on 25-10-1971 and had made the entries in the Register, although such entries are normally made by the Clerk. The entry was countersigned by the witness. He also confirmed that he had contacted the wife of Lt.-Col. Khattak on the phone to verify the identity of the appellant:

37. Now the trial Court and the High Court rejected the plea of Aminullah as wholly devoid of plausibility. The High Court held Adalat Ali Khan (D. W. 4) as an unreliable witness, on the ground that he was a direct subordinate of the brother-in-law of the appellant. Other reasons given for disbelieving the plea of this appellant were-

(i) that in spite of the emergency the appellant although examined as to his identity, neither a pass was given nor a guide provided to him, although the house of Lt.-Col. Khattak was a mile away and his. Wife was alone in the house;

(ii) the witness talked on the telephone with the wife of Khattak but not the appellant;

(iii) entry normally made by the Clerk on duty yet appellant himself made the entry, a device to avoid the evidence of the Clerk which is highly suspicious;

(iv) the whole episode appeared highly coincidental that appellant left his village one day before the occurrence for Lahore and then went to Babawalpur, at dead of night when there was no urgent work to be attended to there; and

(v) appellant could not have reached Bahawalpur at 11-30 p. m. On 25-10-1971 if he left Charsada the same day. The Register was also held to be a fabricated document for the reason that the Regiment having been newly raised in August, 1971, a separate guest register was maintained from January, 1971, and closed in August, 1971, and a fresh register was maintained from 2-5-1971 which was kept up on 2-1-1972. Therefore, if the last-mentioned register was maintained for about one year, how could the previous one be abandoned after seven months?

38. It does not appear from the evidence of the Investigating Officer that when Aminullah appeared before him on 12-11-1971, he produced any document in support of his alibi. But on 26-3- 1972, when he was finally arrested, he produced the extract from the guest register Exh. PZ/3. There- -fore, clearly Aminullah did not come out with the materials in support of his alibi at the earliest opportunity. Be that as it. May,. His version is that he had gone to Lahore to purchase an electric cane-crusher. There is no evidence, however, as to whom he met and what be didat Lahore. From the consideration of his whole statement, it seems the main purpose of his journey was in connection with the purchase of the crusher and yet he was significantly silent about the details of his visit to Lahore and led no evidence to permit the Court to assess how much time he . Must have spat there. The journey from Charsada to Babiwalpur is a long journey and there is no indication anywhere in the evidence led by him or in his statement as to what means of transportation he had adopted to cover this distance. It is also not known when he left his village on 25-10-1971. The purpose of *his visit to Bahawalpur at late hours of the night in a place, whereas a man associated with the Army Administration he expected to face checking and interrogation for security purposes, appears rather not worth the trouble. It is not his case that he had to spend the night over there and on this aspect also there is no evidence. His whole plea is based upon the contents of the entry in the guest register in his own hand. Even Adalat Ali Khan (D. W. 4) who produced the document did not identify Aminullah. The criticism levelled against him that he did not produce the best evidence in support of his alibi appears to be well founded. As regards the register, the admitted position is that Aminullah was the only guest of a commissioned officer whose name was entered in the guest register which was maintained for the guests of non-commissioned officers. Even the details of the amount of the loan have not been disclosed. All these circumstances render his plea as unplausible and a cooked-up story. The plea as a whole coupled with the defence evidence produced in support of it, considered separately or along with the prosecution evidence, does not meet the required test of having created doubt about the presence of Aminullah appellant at Charsada at the time of the occurrence.

39. The plea of alibi set up by Naimatullah is, however, free from such infirmities. According to him; he was in Karachi at the time of the occurrence. His case is that on 25-10-1971, he purchased a non judicial stamp from Asghar Ali (D. W. 1), Stamp-Vendor at Karachi and executed a power-of- attorney Exh. D. 6 in favour of his brother-in-law Major Sikandar Hayat Durrani at Karachi. On the same day he developed some trouble and was admitted in Arshad Clinic at Karachi .And remained there as an indoor patient in connection with his medical treatment until his discharge on 13-11- 1971. In support of his assertion regarding the execution of the power-of-attorney the appellant examined Asghar Ali (D. W. 1). The power-- of-attorney Exb. D. 6 was executed before this appellant was admitted in the hospital and was attested by one Mansoor Ahmed (D. W. 2), who is an SDO. B & R Department and bad acted as the marginal witness of the power-of --attorney. He has supported the case of the appellant and identified his signature on the document. He has further stated that the Seal of the Notary Public was affixed on the document in his presence on the same day, i. e. 25-10-1971. Similarly, Asghar Ali (D. W. 1) has supported the version of the appellant and has stated that he sold Stamp-Paper Exh. D. 6 to Naimatullah on 25-10-1971 and made an entry in his register at. Page 35. The entries are also signed by Naimatullah Khan. The third and the most important witness in defence of this appellant was Doctor Viqar Zaidi (D. W. 3). According to him, Naimatullah was referred to him by Doctor Athar Hussain, a Private Practitioner and Consulting Physician by means of letter Exh. D. 14 addressed to him. On examining the patient on 25-10-1971, he admitted., in the hospital in support of which he produced document Exh. D. 15 in his own handwriting. The case notes prepared by him on the same day Eah. D. 16 were also produced by him. The entries in these notes went over to the succeeding days until 28-10-1979. On 27-10-1971, Naimat--ullah was operated upon for incising abscess and draining the puss, the entry for which is also reflected in the notes. On 29-10-1971, the witness consulted Surgical Specialist, Dr. Baddar Siddiqi, who was called to the Clinic and examined the patient, corresponding entry regarding which is also kept in the notes. Exh. D. 7 contains the brief case history of Naimatullah prepared on his discharge for the purpose of explaining his case to future consultants.

Exh. D. 10 is the prescription for certain medicines prescribed on 27-10-1971. Exb. D. 8 is a receipt for a sum of Rs. 1,215 paid 4owards the charges of the treatment. Since the Doctor had not brought his register and could not produce it at the time of the recording of his evidence at the trial, he was recalled and re-examined by the High Court. Also Doctor Athar Hussain was summoned and examined by the High Court.

40. The High Court on examining this evidence came to the conclusion that the evidence of Doctor Zaidi and Doctor Athar Hussain was unreliable. Similarly, the episode with regard to the execution of the power of attorney was rejected as false and the entry in the register of the Stamp-Vendor was held to be a forgery. It was stated that as compared to the entries in the Register for other days, no space was left at the close of the entries for 25-10-1971, which indicated that the entry in question was an interpolation. Manzoor Ahmad (D. W. 2) was not held reliable since he was admittedly a subordinate of the brother-in-law of the appellant at one time. It was further observed that the Notary Public did not appear for evidence although he was summoned, on the ground that he had no register available. It was also found that the power-of-attorney was not necessary since the authorised acts could be done by Naimatullah himself while he was in Karachi and his presence at Karachi was found improbable since his wife was expecting delivery. The evidence of Doctor Athar Hussain was rejected on the ground that he failed to identify Naimatullah in Court and his name was not mentioned by the said appellant in his 342, Cr. P. C. Statement. The other reason given was that brother-in-law of the appellant could produce anybody before Doctor Athar Hussain with the name of Naimatullah. The learned Judges were not impressed by the evidence of Doctor Zaidi on the ground that the notes maintained by him were on lose papers not entered in any register. They also felt suspicious about the genuineness of the register of Indoor Patients subsequently produced before the High Court by Doctor Zaidi on the ground that this register was withheld during the trial. Additionally, the evidence of Doctor Zaidi was treated as tainted. Since he stayed with the relation of the accused at the time of his evidence during the trial.

41. Learned counsel for the appellant criticised the approach adopted by learned Judges in taking up first and separately the consideration of defence evidence and judging it according to the standards of proof required for the prosecution in a criminal proceeding. The submission is fully borne out from the reading of the judgment of the High Court. Unfortunately, the learned Judges assessed the defence evidence with a view to determine whether the plea of alibi was established beyond reasonable doubt, which was unwarranted in view of the law already discussed. The accused was not required to prove his plea but was only required to lead evidence in order to raise plausible defence that he was not present at the scene of occurrence and having regard to the extent of the onus upon Naimatullah appellant to lead such evidence, it appears that he has succeeded to raise reasonable doubts about his participation in the commission of the crime. The reasons given by the High Court for ejecting the defence evidence of this) appellant are also not tenable.

The learned counsel for appearing on behalf of the State did not seriously challenge the evidence produced by this appellant in regard to the surgical operation performed upon him and submitted that only the evidence relating to events prior to that date was doubtful and unreliable. If !He appellant had developed abscess or puss which required surgical interven--tion on 27-10-1971, it is reasonable to infer that- this condition was the result of progressive development of the ailment, from at least a couple of days prior to the operation. This inference would support the version of the appellant.

42. Another aspect of this case is that Naimatullah had admittedly made a statement when he appeared for the first time before the Investigating Officer and produced the photostat copy of the power-of-attorney and certificate issued by Doctor Viqar Zaidi and receipt for the charges paid for his treatment. It is safe to assume that before the evidence of the prosecu--tion opened at the trial, the plea of alibi set up by this appellant was subjected to investigation or ii not it is a lapse on the part of the Investigating Agency. They have been given full opportunity to meet the plea of the appellant. Notwithstanding this opportunity nothing has come on the record to show that Doctor Zaidi was in any way under the influence of the appellant nor was any suggestion to this effect made to him. His subsequent stay with a relation of the appellant at Peshawar does not necessarily reflect upon the veracity of his testimony, especially, in view of the fact that the testimony is supported with documentary evidence in existence long before the trial. As regards the register of admitted patients, he has stated in his deposition at the trial that he forgot to bring it with himself.

When he was subsequently called in the High Court, he produced the register and proved the entry with regard to the admission of Naimatullah on the relevant date Exb. DW.

3. He was subjected to rigorous cross--examination on both occasions and appears to have withstood -the test successfully. It is difficult, therefore, to discard big evidence as unreliable. As far as the register is - concerned, the witness gave plausible explanation for not producing it at earlier stage, when he brought all the necessary record pertaining to Naimatullah. After all he was a lay man as far as the requirements of legal proof are concerned and may not have properly appreciated the significance of the document. It is also highly improbable to believe that a man with his educational and professional background and being a member of an independent profession would agree to fabricate documentary evidence to support a man charged with murder without having any particular interest in him. If he could fabricate a document at all, he would have done so at the stage of the trial and not when he was being examined before the High Court. In any case no intrinsic infirmity was found in the body of the register itself to discard it as a forged docu-- ment.

The entry in the register of the Stamp-Vendor was also rejected without good reason merely on a speculative ground that since no space was left after the close of the entries for 25-10-1971, the document became suspect. Being a subordinate of the brother-in-law of the appellant at one time is also not a sufficient ground to reject the evidence of Manzoor Abmad. It is usual that attesting witnesses of documents are persons known to the executing parties or at least to one of them.

The case notes and entries about the progress of the treatment of Naimatullah maintained by Doctor Zaidi cannot be rejected on a mere assumption that they ought to' have been entered in a register. It was argued by the learned counsel that for this purpose no register is maintained. The rest of the grounds were also not sufficient to dismiss the evidence of Doctor Zaidi as unreliable.

The fact that Doctor Athar Hussain failed to recognize Naimatullah appellant in Court does not necessarily falsify the evidence of Doctor Zaidi again on the speculative ground that another person may have been produced before him as Naimatullah for the purpose of referring to Doctor Zaidi. This witness produced letter Exh. D. 14, which supports the plea of the appellant.

43. For the foregoing reasons, I am, therefore, unable to agree with the view taken by the learned Judges that Naimatullah appellant has not succeeded in making out a case of alibi. At any rate all the evidence pro--duced by him considered along with the prosecution evidence leaves room for reasonable doubt his guilt and makes it highly probable that he was at Karachi when the crime was committed. The benefit must, therefore, go to him.

44. Having held that the implication of Naimatullah Khan was no beyond reasonable doubt, it seriously reflects on the credibility of the pro--secution witnesses as to the implication of Aminullah who was said to have had a motive to kill the deceased when by such act, he would have lost hi entire share of inheritance. It looks to be wholly improbable that while h was legally pursuing his remedy from allowing his father to further dissipate his property, he would come on the forefront to kill him. It is in this context that the non-identification of the two other assumes importance as the prosecution witnesses had deliberately foreclosed any investigation a against them. Be that as it may, as the evidence admits of doubt on some of the essential aspects of the case _it becomes difficult to accept it as against Aminullah also without independent corroboration as relations qua him were strained. I would, therefore, hold that the convictions and sentences recorded against the appellants are not sustainable and are set aside. In the result, both the appeals are allowed and giving the benefit of doubt to the appellants, I would acquit them of the charge of murdering their father Muhammad Yousaf Khan. They should be released forthwith, if not require in any other case.