1. AMIRUDDIN AHMAD, J.-This is an appeal on special leave by this Court from a judgment and order of the Karachi Bench of the High Court of West Pakistan, dated the 14th February 1956, allowing a Government appeal against acquittal of the appellant and convicting and sentencing him to death under section 302 of the Pakistan Penal Code.
2. The facts on which the appellant was prosecuted on a charge of murdering his brother's were, named Mst. Sahib Khatoon, may be briefly stated as follows: Sahib Khatoon was the were of Muhammad Sulleman, a brother of the appellant, who is a member of the Police force.
3. She used to live with her husband wherever he was posted till his transfer to Dadu where family quarters were not available to him and he left his were with his brother, the appellant Din Muhammad, who lived with his mother Mst. Mahnaz, his younger brother Sidik who is deaf and dumb and his were Mst. Hajiani. The deceased was not pulling on well with her husband's relations.
4. On the 23rd of September 1953 at 10 p.m. The appellant Din Muhammad reported at the Police Station Dadu that his brother Sulleman's were Mst. Sahib Khatoon who was living in a house adjacent to his in the village of Karam Khan Lund had committed suicide by hanging herself; that she was not on good terms with her mother-in-law Mst. Mahnaz, and they always continued quarrelling on account of household affairs; that day when he was in the field about "Bipahri" time his mother Mst. Mahnaz informed him that Mst. Sahib Khatoon had left the house on the pretext of fetching water and leaving the jars in the street had gone away to some unknown place; that on this he tracked her foot-prints and came to the public road leading to Dadu where her husband was posted and where apparently she was going; that he overtook her and entreated her to return home to her village, but as she refused and would not go back, he gave her blows at her legs and back with a thin stick which he had in his hand and he forced her to return to her village; that after this he left Mst. Sahib Khatoon in the house with her mother-in-law Mst. Mahnaz and himself went out on his business; .That after past Tripahrd time when he was fencing his land Mst. Mahnaz called him and informed him that Sahib Khatoon had strangled herself to death; that he went back to his house with two persons and found her hanging from the rafter with a rope of jute round her neck, but as the body was yet warm, he immediately cut the rope with a scythe and got her down, put her on a cot and gave her water and kneaded her body with manure, but she could not be revived.
5. He also stated that Me. Mahnaz told, him that she had gone out to fetch water and when she came back she saw Mst. Sahib Khatoon hanging with a rope from the rafter. On this report the Police came to the spot, prepared an inquest report on the body and sent the body for post-mortem examination. The post-mortem examination revealed that the deceased, who was, a woman of about 22 years of age and was fairly well-nourished, bore the following injuries on her body:-
(1) Ecchymosis over and around the nostrils and mouth. Ecchymosis on mid forehead under the skin.
(2) Contusion on the outer side of the left leg.
(3) Contusion on the outer aspect of the left knee.
(4) Contusion on outer aspect of right arm.
(5) Four oblique contusions on the front and outer side of right leg.
(6) An oblique dark colored ligature mark round the neck which on removal of the skin was found not to have affected the tissues under the skin, which were normal and showed no change of any kind.
6. The internal examination showed that one right upper second premolar tooth was fractured. The socket contained the roots of the broken tooth and was congested and lacerated. The cartilages and ribs on the right side and front of chest were depressed in comparison with the left side appearing to have been caused by pressure over that part of the chest, which could be caused by a person sitting on her chest on the right side and it required continuous and heavy pressure to cause such depression. The doctor was of opinion that her death was caused by asphyxia-as a result of suffocation by forcible closure of the mouth. And the nostrils and pressure over the chest.
7. On receipt of the post-mortem report on the 25th September 1953, Head Constable Ahmad Khan lodged the first information report of an offence of murder having been committed and investigation into the murder case was started immediately.
8. Previous to this the Assistant Sub-Inspector of Police, who had recorded the report of an alleged suicide by the woman made by the appellant Din Muhammad, had come to the village and the place of occurrence and made investigation in connection with the alleged suicide of the woman and examined 8 persons up to the 25th September 1953; and during his period of investigation the names of Haji, Nabi Bux and Ranjho who later emerged as eye--witnesses were not disclosed. After a case of murder was recorded on the 25th September 1953 the investigation was taken up by Sub-Inspector Habib Ullah, who also went to the place of occur--occurrence and the village. He also examined about 12 or 13 persons up to the 27th September 1953, when according to his evidence he got information from a spy that Haji, Nabi Bux and Ranjho had information about this offence. He examined Haji and Ranjho on the 28th and Nabi Bux on the 29th September. In his cross-- examination he stated that he was not prepared to disclose the name of his spy. Evidently this spy was not even disclosed to the Deputy Superintendent of Police, who was supervising the investigation from the 25th September 1953 and who himself had examined a number of witnesses in the course of investigation. The Deputy Superintendent of Police in his evidence stated that on the 25th and 26th September the names of Haji, Nabi Bux and Ranjho were not disclosed to him and that the Sub-Inspector did not produce the spy before him.
9. The prosecution case rested on the report lodged at the Police Station by the appellant, the medical evidence and the evidence of the three witnesses mentioned above. These three witnesses, two of whom are related as father and son and each of whom posed as an eye-witness to the occurrence from beginning to end, were disbelieved by the Sessions Judge. The evidence of Haji before the Committing Magistrate was put in under section 33 of the Evidence Act and he could not be examined before the Sessions Judge, as it transpired in evidence that he had gone on pilgrimage to Mecca on foot and nobody could say when he was expected to return. His statement taken under section 164 of the Code of Criminal Procedure was also put in by the prosecution. On an analysis of the evidence and statements of these three witnesses, the learned Sessions Judge found that they had contradicted themselves and each other in material particulars. Witness Nabi Bux, who is aged 18 years and is the son of Ranjho, stated that before the appellant started beating the woman with his stick he gave her `Buja' and he also stated that he sat on the chest of Mst.
10. Sahib Khatoon and started throttling her, but in the committing Magistrate's Court in his evidence he had stated that he struck Sahib Khatoon with lathi and did nothing else, and also stated that except the portion where he said that the accused gave `Ghutas' (throttling) to the deceased, the rest of the statement made by him under section 164 was correct. The witness Haji on the other hand did not speak anything about `Buja', although he spoke about the accused giving a throttling to the woman, P. W. Ranjho aged 50, who is the father of Nabi Bux, only stated that the accused was following Sahib Khatoon and after over--taking her started beating her. He sent his son Nabi Bux to go and intervene and himself went running to the spot. This witness does not speak about the accused throttling or sitting on the chest of the deceased. None of these witnesses admittedly spoke anything about this incident to any one for six or seven days until they were approached by the Police. In addition to all this, considering the enmity of Haji with the appellant, and the mysterious way in which these witnesses appeared on the scene to pose as eye-witnesses to the whole occurrence, the learned Sessions Judge disbelieved the evidence of these three witnesses.
11. He also treated the report made by the appellant to the Police Station about the death of the woman as a confessional statement and excluded it from consideration under section 25 of the Evidence Act. On these grounds he acquitted the appellant of the murder of Mst. Sahib Khatoon for which he was put upon his trial.
12. On appeal by the Government against the acquittal the learned Judges of the Karachi Bench of the High Court of West Pakistan held that the report made by the appellant to the Police was not a confessional statement and was admissible and they also held that there was no reason whatsoever for the learned Sessions Judge to reject the evidence of the three so-called eye-- witnesses, and they recorded the finding that "the medical evidence coupled with the respondent's own accident report directly connects the respondent with the heinous crime," and followed it up in the latter part of their judgment by a finding : "It is clear to us that as a result of all these injuries the deceased breathed her last". On these findings the High Court set aside the order of the learned Sessions Judge, convicted the appellant under section 302 of the Pakistan Penal Code and sentenced him to be hanged.
13. On appeal before us it was urged that the High Court had erred in holding that the appellant's report to the Police Station about the death of the woman was not a confessional statement. It was contended that it was a confessional statement and inadmis--sible in evidence. Reliance was made in this connection on the case of Ali Gohar Mahi Machi v. Emperor (AIR 1941 Sind 134) in which the Privy Council case of Pakala Narayana Swami v. Emperor (AIR 1939 P C 47) was distinguished. In the first mentioned case the learned Judges of the Sind Chief Court proceeded on .The assumption that the observations of their Lordships of the Privy Council in Pakala Narayana's case were limited to the facts of that case, as will appear from the following remarks in the learned Judges' judgment at page 136 of the Report:- "But we think that the statement of their Lordships must be limited to the facts of the particular case before them where, though the accused made an incriminating statement from which an inference of guilt might be drawn, he did not in that statement confess to any offence of any kind at all."
14. That their Lordships in Pakala Narayan's case were not limiting their observations to the facts of the case before them but were making a general observation for the guidance of all courts is evident from what they themselves say at page 52 of the Report where they have dealt with this question: "In view of their Lordships' decision that the alleged statement was inadmissible by reason of section 162, the appel--lant's contentions that it was inadmissible as a confession under section 25, Evidence Act, becomes unnecessary. As the point was argued however and as there seems to have been some discussion in the Indian Courts on the matter it may be useful to state that in their Lordships' view no statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate, substantially all the facts which constitute the offence. An admission of a gravely incriminating fact even a conclusively incriminating fact is not of itself a confession."
15. A similar view on the question of confession was held by this Court in the case of Shahamad v. The State (PLD 1956 SC (Pak.) 238). This ground, therefore, is not tenable and the High Court was right in holding that the statement of the appellant was not a confessional statement.
16. The second point urged was that the learned Judges of the High Court had displaced the findings of the learned Sessions Judge so far as it related to the appraisement of the evidence of the three eye-witnesses Ranjho, Nabi Bux and Haji on unreasonable grounds and on a misreading of the record.
17. The learned Judge did not take the trouble of asking this witness about details of the theft case which he had mentioned in his cross-examination. He did not even care to ask him what the result of that case was. No certified copy of any portion of the record of the case was produced . . . . . . . . . .
18. This is not the manner in which evidence in serious cases of murder is to be appreciated."
19. All this remark was uncalled for and made under a misapprehen--sion that witness Haji had appeared and deposed before the learned Sessions Judge, whereas as a matter of fact his evidence before the Committing Magistrate was put in under section 33 of the Evidence Act, because his presence before the learned Sessions Judge could not be secured. There is, therefore, much force in the second point urged on behalf of the appellant and it appears that the four principles laid down by the Privy Council in the case of Sheo Swarup and others v. King-Emperor (AIR 1934 P C 227) for they guidance of the High Court, when dealing with cases of appeals against acquittal have, for the most part, been overlooked by the learned Judges, particularly those that require that the High Court should give proper weight and consideration to the views of the trial Judge as to the credibility of the witnesses and will be slow in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. The learned Judges of the High Court also appear to have misread the medical evidence as to the cause of the death of the woman when they held that "the appellant's accident report coupled with the medical evidence directly connects the appellant with the heinous crime." In the report made by him the appellant only admitted that he had given some light blows with a thin stick on the woman's legs and back.
20. According to the medical report the death was due to asphyxia caused by forcible closure of the mouth and the nostrils and pressure over the chest. The slight injuries on the knee and back caused by the appellant are, therefore, in no manner connected with the cause of the death of the woman.
21. The nature of injuries round the neck according to the medical report was only superficial and they were post-mortem, and death was not due to throttling. Again towards the end of the judgment the learned Judges have found that it was clear to them that the death of the woman was the result of all these injuries. This again is not supported by the medical evidence as tothe cause of death. The death according to medical report was not due to the cumulative effect of the injuries that were found on the body of the woman and the medical opinion on the cause of death has been clearly and categorically given as being forcible closure of the mouth and nostrils and pressure over the chest.
22. It also appears that the woman walked back home on her feet after being roughly handled by the appellant. There is no evidence of any signs of dragging at the place where she was assaulted and there was no evidence that her clothes were soiled with dust or earth or there were scratches in her clothes or body to show that she was dragged on the round. On the other hand there was the evidence of witness Haji that when the appellant dragged her towards his village along the public road, she was on foot; and it is clear from the whole of the evidence that when she was dragged she was able to walk on her feet. The asphyxia, therefore, which brought about her death, was most probably caused after she had returned to her house by some one other than the appellant.
23. For the reasons stated above the judgment of the High Court is unsustainable, the appeal is allowed and the conviction of, and sentence on, the appellant are set aside. The appellant is acquitted and shall be set at liberty forthwith.