1. SHAFIUR RAHMAN, J.-The conviction of the appellant under sec tions 332/449/436/380, P. P. C. Being based entirely on circumstantial evidence, leave to appeal was granted to him to reappraise the evident with a view to ensure that the Courts have kept in view and observed the established principle that "inculpatory evidence should be wholly incompatible with the innocence of the accused and should be incapable o explanation on any other reasonable hypothesis except of his guilt".
2. ' Sadar Din the deceased was living in a house in Diggi Mohallah, Saddar Bazar, Lahore Cantt. The house itself was surrounded on one side by shops and the other by a street 17f' wide. On the right side of it there was an open plot of land with foundations of a house dug and on the left there was a house shown to be occupied by Ch. Hanif, D. S. P. (Anti-Corruption). Alongwith Sadar Din lived his wife Mst. Karam Bibi deceased, two daughters Mst. Amina and Mst. Safia. The house had, apart from the amenities, drawing room in front, a courtyard behind it and two rooms at the back, one on eastern side, the other on western side, separated by a portion of the courtyard. The room on the eastern side adjoined the open plot. It being winter this room was utilized by the whole family for sleeping at night. The room on the western side accommodated household goods.
3. ' On the night of 19th/20th December, 1972, Mst. Farzana aged 5 years, his grand-daughter was also asleep in the house. On the morning of the 20th December, 1972 at about 8 a.m. Samina, a sister of Farzana who was living at a distance of 400 yards in the house of her father Umar Din son of Sadar Din came to take Mst. Farzana with her to the school where both were studying. She found that the doors of the house were open, the two rooms at the back of the house were on fire and the occupants had been murdered. She went back to her house and reported the matter to her father Umar Din who rushed to the scene and saw what had happened. He went to the Police Station North Cantonment and lodged the report (Exh. P. A.) about the occurrence at 8-45 a.m. The same morning. As none had witnessed the occurrence he got it recorded in the report that he suspected for this Muhammad Siddique, the husband of Mst. Amina deceased who had litigation with her on account of a claim for maintenance by Mst. Amina and a claim by him for restitution of conjugal rights. He was threatening to wipe out the whole family.
4. ' The investigation of the case was taken up by Muhammad Aslam Sahi, P. W. 26, S. H.
0. North Cantt. Police Station. He attended to the dead bodies. He got the details of the things missing from the house. From outside the eastern room he recovered a Kerosene Oil Hearth (Exh.
5. 75) and a Kerosene Oil tin (Exh. 76). From inside the room he recovered articles Exh. .58 to Exh. 78 taken into possession vide memo. Exh. P. C. The articles comprised blood-stained semi-burnt cots, beddings and other personal and household articles including a matchbox. From the western room he recovered articles, Exh. P.
1. To Exh. 57 vide memo. Exh. P. B. These were also articles of furnitures, furnishings and personal use, none blood-stained but most of them semi-burnt. The list included a ladies purse Exh. 54 made of plastic containing photograph which was later found to be of appellant and two letters addressed to Shagufta (P. W. 25) by Fayyaz Shakoh the appellant. Shagufta (P. W. 25) was interrogated and further particulars of the appellant obtained. His residence (servant quarter 9-Jhelum Road, Lahore Cantt.) was searched in the presence of his father (a retired constable) on 22-12-1972 and recoveries of an attache-case Exh. 173 containing articles Exhs. 151 to 170 were effected vide memo.
6. Exh. P. M. Most of the articles recovered were photographs, framed and unframed, diaries maintained by the appellant and letters written by Ms:. Shagufta (P. W. 25). The Investigating Officer searched for the appellant and on the 24th visited even his native place Ghazi Gora in Azad Kashmir but could not apprehend him.
7. ' On the very morning of 20th December, 1972, Muhammad Nazir S. I. Finger Print Bureau (P. W. 5) was brought to the scene of occurrence. He examined the doors and the windows of the house, the sewing machine, the transistor radio and the utensils and others to locate the possibility of presence of finger prints of the culprit. He ultimately picked up the kerosene oil Hearth (Exh. P. 75) and the kerosene oil tin (Exh. P. 76), brought them to the. Laboratory, took photographs of the impressions and later reported that these were of the right middle finger, right ring finger and left thumb of the appellant.
8. ' On the 1st of January, 1973 Muhammad Talib (P. W. 16) was at his house in Rawalpindi. The appellant approached him. He told him that he had love affair with Mst. Shagufta and as the members of the family of Sadar Din, her maternal-grandfather, were coming in his way he had murdered them, burnt their house and stolen their property. He disclosed that as the police was after him he requested Talib for intercession in the matter. Muhammad Iqbal, P. W. Was also present at that time. The appellant also told him that he was staying in Sabri Hotel. Muhammad Talib gave the impression to the appellant that they would accompany him to Sabri Hotel and started for that place but on way when Talib (P. W. 16) found Inayat Hussain ;P. W. 21) S. H.
0. 'C' Division, Rawalpindi, alongwith a police party present on the Murree Road he straight took the appellant to him and told him what he had done. It was according to Talib, P. W. 16 too much for him to assist the appellant who had done such an act. The person of the appellant was searched.
9. A key was recovered alongwith a ten-rupee note which was taken into possession. On the pointing out of the appellant the same evening and in the presence of among others of the Manager Sabri Hotel (Malik Rashid Khan, P. W. 10) the room was opened from the key recovered from the appellant and two attache-cases were recovered from under the cot and they were full of property ornaments and clothes stolen from the house of Sadar Din deceased. These were all taken into possession. The appellant thereafter took them to Jhelum Zailif Hotel of which Ijaz Hussain, P. W. 19 was the Manager. He identified the appellant as the person who had stayed at his hotel about 10/11 days before that giving his name as Sher Ali and making an entry in the register kept at the hotel in that name. It also appeared that while staying there he had given in bakhshish a shirt P. 1/35 to Sawar Khan, (P. W. 6) a pant, P. 1/37 to Bahsir Masih (Sweeper P. W. 7). He had also left for tailoring a other piece out of which Arshad Ali (P. W. 9) the tailor had made a coat which he produced. The articles were all got identified by list. Inayat Begum (P. W. 24), Umar Din (P. W. 15) and Mst. Ruqqaya Farooqi (P. W. 11) on 14th January, 1973. The appellant on 11th January, 1973 while in custody led to the recovery of knife (Exh. P. 15) from Ghulam Muhammad Park from underneath the dry leaves near the gate. The handwriting of the appellant was examined by Shah Muhammad Din Inspector an expert (P. W. 22) and the letters to Mst. Shagufta were found to have been written by him.
10. ' Dr. Sabir Ali performed autopsy of the five dead bodies. The dead body of Sadar Din had three stab wounds on the chest with no marks of burning. The dead body of Mst. Karam Bibi had multiple stab wounds and the dead body was partially burnt. The dead body of Mst. Amina had multiple stab and incised wounds and was 95% burnt. The dead body of Mst. Safia Bibi had multiple stab and incised wounds and was 90 burnt.
11. ' The dead body of Mst. Farzana had four stab wounds and was 95% burnt. The dead bodies of Amina, Safia, Farzana, had ligature marks round the neck showing that they had been strangulated by Dopatta and "Paranda".
12. ' When the appellant was questioned in the commitment Court about the allegations against him, he denied being on visiting terms with Mst. Shagufta or to have exchanged letters with her. He denied having committed the murders or got recovered the stolen properties or to have made extra-judicial confession before Talib P. W. His case was that he was arrested by North Cantt. Police from Azad Kashmir on 26th December, 1972 "and was brought to Rawalpindi where all this evidence was concocted". According to him, his finger-prints on the articles and writings were all obtained during the investigation of the case. He explained the case against him by stating that- "Khalid son of Umar Din was on visiting terms with me. Umar Din suspected intimacy of his daughter Mst. Shagufta with me. He falsely involved me in this case and saved the real culprit named in the F. I. R. Who was related to him."
13. ' At the trial, however, he stated :- "I had intimacy with Mst. Shagufta but I did not visit the house of Sadar Din deceased. I developed intimacy by going to the house of Umar Din father of Mst. Shagufta."
14. ' He also admitted : "It is correct that I exchanged letters with Mst. Shagufta but I usually sent letters through Khalid the brother of Mst. Shagufta. It is also correct that we used to meet in hotel and other places."
15. ' He also owned that Mst. Shagufta had addressed him the letters Exh. P. Z to Exh. P. Z/8.
16. ' In other-respects his repudiation of the allegations of the prosecution and explanation was as in the commitment Court.
17. ' The trial Court believed the motive, the extra-judicial confession made before Talib and Iqbal ; the recoveries effected at the instance of the appellant, and the identity of the handwriting and the finger-prints. Finding no mitigating circumstance, the appellant was convicted under section 302, P. P. C. And sentenced to death. For conviction under section 449, P. P. C. He was sentenced to 7 years' R. I. And fine of Rs, 500 or in default to undergo six months' R. I. For conviction under section 436, P. P. C. He was sentenced to undergo 5 years' R. I. And a fine of Rs, 5,000 or in default to undergo six months' R. I. More. He was convicted under section 380, P. P. C. And sentenced to 3 years' R. I. And a fine of Rs, 200 or in default three months' R. I.
18. ' While dealing with the appeal filed against his conviction and sentence and disposing of the murder reference from the trial Court, the High Court considered it not safe to rely on the extra- judicial confession attributed to him to have been made before Talib and Iqbal P. Ws. The High Court also considered the recovery of a knife at his instance doubtful. The rest of the circumstantial evidence was believed, particularly present of his finger-prints. The recoveries effected at his instance from the Sabr Hotel from Jhelum were also believed. The various pieces of circumstantial evidence were considered sufficient to prove beyond all doubt the ca against the appellant. His conviction and sentence as recorded by, the trial Court was affirmed.
19. ' The learned counsel for the appellant contended that in this case, as in any other criminal case, the first information report forms the very foundation of the case, its very basis and the core. It does not contain any reference direct or indirect to the complicity of the appellant. On the other hand what it does contain unmistakably points out to another person. It contains the details of his animosity and also specifically mentions that he was threatening to wipe out the whole family, which in fact was accomplished by this deed. He was not in any positive manner associated with the investigation and this happened because he was after all related to the complainant party.
20. Umar Din, knowing as he did of the, existence of such a relationship between his daughter and the 'appellant would have a strong urge to implicate him in the crime and so eliminated him from the scene altogether.
21. ' Another important piece of prosecution evidence, a necessary link in the chain, is the extra- judicial confession attributed to the appellant before Talib and Iqbal P. Ws. If it is removed from consideration, as it should be after its rejection by the High Court, there remained no connection between the appellant and the crime. There would be no access to the recoveries from Sabri Hotel in Rawalpindi and Zailiff Hotel in Jhelum. These were necessarily the follow ups of the so-called extra-judicial confession and there was no other evidence to sustain them independently.
22. ' The recoveries of ornaments have been challenged on the ground that the weight and description as given by those who identified them was not identical with the description and weight given in recovery memos.
23. ' According to the learned counsel the case against the appellant is entirely based on circumstantial evidence and it is so suspect, disjointed and incomplete that it does not establish the guilt of the appellant nor is it incompatible with the innocence of the appellant.
24. ' The statement of Mst. Shagufta (P. W. 25), the admission of the appellant that he had "intimacy" with her and the contents of the letters (Exh. P. Z. To Exh. P. Z/8 leave no manner of doubt that they were ardent lovers, that their love was not having a plain sailing; that interference, obstruction and objections came from some of her relatives, Safia deceased being specifically mentioned in some of these letters. The appellant felt strongly about it. The state of this relationship explains the background and provides the basis. It does not by itself prove the motive to murder, for every lover aspires to overcome the obstacles and does so in his own way.
25. ' The next piece of connecting evidence in the chain is the recovery of the purse owned by Mst.
26. Shagufta, from the western room It contained a photograph of the appellant and two letters Exh.
27. P.B.B. And Exh. P.B.B./I. They bear no date. If the two had been exchanging letters and photographs and if letters addressed and photographs sent to the appellant were recovered from his belongings, it would be normal to expect the letters addressed to Mst. Shagufta and photographs sent to her, to be in her possession. The objection to the recovery of the purse from the western room is that as Mst. Shagufta was not residing there her purse could not have been there. Besides, if all the other articles of the room had marks of burn how could it escape any such damage and remain intact. The burning of the articles inside that room had taken place by sprinkling of kerosene oil. Objects which received kerosene would have immediately caught fire the others only on coming into contact with burning articles. The list of articles (Exh. P. B.) recovered from the same room shows that articles listed at Nos, 14 and 16 were also not burnt. The test of having marks of burn could not be applied for believing the recovery. As the house of Sadar Din was at short distance from her own and her younger sister was passing the night there the purse may have been left there.
28. ' The High Court has relied heavily on the statement of Muhammad Nasir (P. W. 5) who was called the same morning' to pick up finger-print impressions from the premises. He was able to collect them from the Hearth (Exh. P. 75) and empty tin (Exh. P. 76). These were identified to be that of the appellant. These evidence has been challenged on the ground that the forwarding letter of the S. S. P. Being of 21st December, 1972 the expert could not have examined, these articles on 20th December, 1972 and Inaya1 Begum could not have seen them in the Police Station-en 22nd December, 1972 (as stated by her in the commitment Couit). In view of the statement of Muhammad Nasir, the forwarding letter had to follow and not accompany these articles. As these articles were returned to the police after taking the photographs of the impressions, Inayat Begum could have seen them at the Police Station. This is a very strong piece of circumstantial evidence against the appellant.
29. ' As the High Court has not considered it safe to rely on the extrajudicial confession of the appellant, and the recovery of the knife at his instance, we would also like to exclude it from the present consideration.
30. The recovery from Sabri Hotel has been witnessed by its Manager Malik Rashid Khan (P. W. 10). The recoveries from Jhelum were witnessed by Ejaz Husain (P. W. 19) the Manager of Zialif Hotel and individual items by Sawar Khan (P. W. 6), Basbir (P. W. 7), Arshad Ali (P. W. 9) etc. Though the allegation of the appellant is that all these witnesses have been procured and this evidence has been fabricated by the police, we not find any reason to doubt it. The witnesses are of different places different types and categories, and they have no particular reason to unit against a person like the appellant. Their testimony is consistent an intrinsically sound and creditworthy. The discrepancies in weight an description pointed out by the learned counsel in respect of ornaments (item 26 Exh. P. Q. Compared with items 1 and 2 list Exh. D. A.) are not of much consequence to the case. In the first place this discrepancy was not pointed out to the witness (Ruqayya Farooqi P. W. 11) as it was a discrepancy relating to her police statement. Secondly in giving details of the lost property the weigh particularly of gold ornaments may not ordinarily be disclosed with much precision.
31. ' The frustrations in love the threat extended coupled with the presence of his thumb-impressions on the objects recovered and the recovery of stolen articles at bis instance all provide the requisite links to make the chain complete and strong.
32. ' A brief resume of the requirements of law in the case of circumstantial evidence may at this stage be useful. The force and value of well- authenticated circumstantial evidence was brought out in Fazal Elahi v. Crown in the following words :- "In the ordinary case, this Court is content to accept findings of fact reached in the High Court. The present case, however, rests on nothing but circumstantial evidence i. e. Evidence relating directly to a number of minor facts, which facts the prosecution regarded as sufficient, in the total absence of direct evidence, to sustain an inference that Fazal Elahi murdered Jamal Din. It may be conceded that 'a concurrence of well-authenticated circumstances composes a stronger ground of assurance than positive testimony, unconfirmed by circumstances, usually affords' (Paley).
33. Nevertheless, where the direct evidence relates only to minor facts, and consequently the case rests wholly on circumstantial evidence, it is necessary to remember that 'processes of inference and deduction are essentially involved, frequently of a delicate and perplexing character liable to numerous causes of fallacy' (Wills on Circumstantial Evidence). This danger point to the need for caution in accepting proof regarding anyone of the minor facts adduced, before it is held to be established for the purpose of drawing inferences therefrom. A mere concurrence of circumstances, some or all of which are supported by defective or inadequate evidence, is apt to1 create a specious appearance which is calculated to lead to fallacious inference. Hence the necessity of accepting, as the basis of inference, only such circumstances as are well- authenticated'. Another factor to be borne in mind in considering circumstantial evidence appears from the following dictum of Hewart, L. C. J. In the case of Taylor :- 'it has been said that the evidence against the applicants is circumstantial ; so it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.'
34. ' For the purpose of the present discussion, the emphasis of this passage lies in the expression 'undesigned coincidence'. Where there are indications of design, in the preparation of a case resting on circumstantial evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference."
35. ' In Billimoria v. State , the conviction had been recorded entirely on ircumstantial evidence. The circumstantial evidence in that case was "that shortly after the murder of Mukhtar Ahmad which was committed with a weapon such as a sharp axe, and which was accompanied by robbery or the personal property in his immediate possession, the accused Billimoria was found in personal possession of Mukhtar Ahmad's spectacles and his shoes, and that he was also in possession, in a place of hiding of which he had exact knowledge, of a shirt, a pair of trousers, a woollen coat and shaving tackle belonging to Mukhtar Ahmad. Billimoria's possession is further proved by the fact that these were found tied in a shirt belonging to him. In the same place' of hiding was found an axe belonging to Billimoria which, or a similar weapon was the instrument with which the murder was committed.
36. ' Thus, practically everything which was robbed from the murdered man was recovered from Billimoria's possession on the fourth day following the discovery of the crime. This is a very strong circumstance favouring the belief that he was the person who removed these things. Following the murder, and the natural inference is that he was directly concerned in the murder. When it is also found that he had concealed, alongwith some of the deceased's goods, a weapon of the exact type with which the murder was in all probability committed, the inference becomes almost irresistible on the basis of a complete, chain of circumstances, that he himself committed the crime."
37. ' It was on such evidence concluded that :- "The chain of circumstances in this case is so strong that in order to create a reasonable doubt regarding the natural conclusion that the murder was committed by Billimoria, it was necessary for him to establish exculpatory circumstances of a concrete kind, and in the absence of either proof or suggestion by him that he received the goods from another, in a manner unconnected with the murder, it is difficult to conceive of any circumstance which might have the effect of creating such a doubt, except perhaps an allegation supported by reliable proof, that at the time when the murder was committed, Billimoria wss in some other place. There is no such allegation, and as has been seen, Billimoria led no evidence in his defence at the trial."
38. ' In another case Abdus Samad v. State the conviction was based on two pieces of circumstantial evidence dealt with in the following words :-- "But there can be no doubt that the child was last seen alive in the company of the accused, on the morning of the 9th August, in Hyderabad City, and that he had exclusive knowledge of the place where its remains were eventually found. He gave no explanation as to how the child met its death.
39. The fact that the discovery of the crime was delayed has led to the disappearance of a good deal of evidence which might have been available if the disappearance of the child had been reported immediately. One result is that the manner of the child's.Death is a mystery. If the child did not die while being raped but was strangled to death, for no reason whatsoever, the cause might perhaps2 3 be found in some psychopathic irresponsibility in the accused, for he bore no grudge towards anyone connected with the child, and the child herself could have done him no injury, ' However, that may be, the two circumstances mentioned above were, in my opinion, sufficient to establish the charges of kindnapping and murder against the accused, being sufficient to exclude all possibility of his being innocent of the death of the child".
40. ' In the case of Sairan v. The State the various elements of circumstantial evidence were considered not well-authenticated and it was concluded that :- "As regards conviction based oh circumstantial evidence alone, the rule is that the facts proved must be incompatible with the innocence of the accused and incapable of explanation upon any other' reasonable hypothesis than that of his guilt. The facts and circumstances revealed in this case hardly satisfy this test ; rather these weigh against the guilt of the appellant. At any rate, a- serious doubt about her guilt is cast by the suspicious act and conduct of the main witnesses."
41. After re-examining the entire evidence in this case afresh, we find that the High Court has not committed any legal or factual error in appraising the evidence ; - that the facts proved beyond rensonable doubt, already taken note of and enumerated, do establish the guilt of the appellant.
42. His conviction and sentence is, therefore, maintained and the appeal is dismissed. PLD 1953 FC 214 PLD 1958 SC 313 PLD 1964 SC 167 P L, D 1970-SC 516