1. M. R. KHAN, J.-The appellant was tried under section 302 of the Pakistan Penal Code for having committed the murder of his sister Mst. Bahishtan. He was convicted for the offence of murder and sentenced to death. On appeal and reference, the High Court of West Pakistan, Lahore, dismissed the appeal and confirmed the sentence of death.
2. There was no direct evidence as to how Alst. Bahishtan had been done to death and by whom. The conviction and sentence of the appellant rested entirely on circumstantial evidence. As the criticism offered on the pieces of circumstantial evidence did not appear to be unsubstantial, leave was granted to re-examine the evidence.
3. Before stating the facts as to how the murder in this case was discovered, it would be useful to give a short narrative about Mst. Bahishtan. Kamal Shah, a resident of village Malka Hans had abducted Mst. Sardaran, were of Walayat Shah, more than 20 years ago. Walayat Shah died and Mst.
4. Sardaran continued to live with Kamal Shah as his were. The appellant Lai Shah and the deceased Mst. Bahishtan were born of the womb of Mst. Sardaran. This Sardaran was the maternal aunt of Talib Hussain (P. W. 17). Mst. Bahishtan had been married to Manzoor, the brother's son of Kamal Shah. After her marriage, Mst. Bahishtan was abducted by Talib Hussain in retaliation of the abduction of his maternal aunt Mst. Sardaran by Kamal Shah. For this, Manzoor brought a criminal case against Talib Hussain under section 498 of the Pakistan Penal Code, but it ended in acquittal.
5. There was another criminal case between the parties over the further abduction of Mst. Bahishtan, but it-is not necessary to give its details. In spite of criminal litigations Mst. Bahishtan continued to live with P. W. Talib Hussain its his were and got four children. In order to patch up the difference between Talib Hussain and her father Kamal Shah, Mst. Bahishtan paid a visit to her father's place at Malka Hans sometime before the present occurrence. She was said to have succeeded in bringing about a conciliation with her father Kamal Shah. After she had come back from her father's house, her brother Lai Shah (appellant) paid a return visit to the house of Talib Hussain and after staying there for 4 or 5 days went back. This, according to the prosecution, was the state of relationship between the deceased and her brother till before the date of occurrence.
6. On the night between the 24th and 25th of April 1965, Muhammad Yar (P. W. 6), while he was working at the well in the area of Chak No. 55/S. P. At about Isha prayer time, received an information that a child was crying in the field. Muhammad Yar went there and picked up the child.
7. The following morning Gamey Shah (P. W. 8), Lambarder of Chak No. 55/S. P. Got an information that a woman lay dead in the field and that by the side of the dead body a boy was crying. Gamey Shah visited the spot, directed Shahamand Chaukidar (P. W. 7) to watch over the dead body and himself proceeded to the Police Station Chak Bedi where, at 2-00 p.m. On the 25 April 1965, he lodged an F. I. R. The Sub-Inspector of Police went to the spot and started the investigation. He held an inquest on the dead body, took into possession a burqa, one handkerchief and some broken bangles from the spot. A photograph of the dead body of the woman was taken by the photographer Muhammad Amin (P. W. 4). Thereafter the dead body was sent to the mortuary for post-mortem examination. In the meantime, Talib Hussain (P. W. 17) appeared before the Sub- Inspector of Police and having seen the photograph and the clothes and other articles taken into possession by the police, identified the deceased to be his were Mst. Bahishtan. The two children who were identified by Talib Hussain as his sons were restored to him.
8. It was alleged by the prosecution that the appellant Lai Shah had visited the house of Talib Hussain for .The second time and wanted to take Mst. Bahishtan to her father's house as the date of Lai Shah's marriage was to be fixed. Talib Hussain brought Lai Shah and Mst. Bahishtan along with her children to Okara. Lai Shah and Mst. Bahishtan along with her two younger sons boarded a bus at Okara for going to Malka Hans. It was the case of tae prosecution that Lai Shah had murdered Mst.
9. Bahishtan on the night between the 24th and 25th April 1965 while she was being taken by him to her father's house at Malka Hans.
10. According to the medical evidence, as many as nine injuries were found on the dead body of Mst.
11. Bahishtan. These included five incised wounds on vital parts of the body, besides abrasions. In the opinion of the doctor, the death of the deceased was due to the incised wounds. Having regard to the nature of the injuries, it can be safely said that Mst. Bahistan was murdered by some one.
12. According to the evidence of the Investigating Officer (P. W. 2t), the appellant was produced before him on the 28th April 1965 and was arrested on that day. At that time, his shirt (P-15) and chaddar (P-16) were removed from his person and sealed into a parcel, vide recovery memo. (Exh. P. K.), dated the 28th April 1965. On the next day, the appellant, as stated by the Investigating Officer, took him to Nabi Bakhsh (P. W. 14), a goldsmith stating that he had sold one pair of ear-rings and one Takhti (amulet) to P. W. Nabi Bakhsh. These ornaments, along with a receipt (Exh. P. Q.), were seized after these had been produced by P. W. Nabi Bakhsh, vide recovery memo. (Exh. P. R.), dated the 29th April 1965. On the same date, the appellant, it was alleged, led the police to Nurpur Rajbah in the area of Chak No. 55/S. P. And pointed out a place whereupon Nawab Ali (P. W. 12) brought out a knife (Exh. P. 9) from the bottom of the canal. This knife was taken into possession, vide recovery memo. (Exh. P. N.), dated the 29th April 1965. The shirt and chaddar of the appellant, the ear-rings and the amulet as also the knife were sent to the Chemical Examiner for examination. On examination, the Assistant Chemical Examiner reported that blood was found in all these items except the chaddar. He sent scrappings from the ear-rings and the amulet and also scrapings from the knife along with the shirt to the Serologist for determining the nature of the blood. The Serologist reported that the shirt and the scrapings from the ear-rings and the amulet wereth stained with human blood, but the blood stains on the scrapings from the knife were found to have disintegrated.
13. Having regard to the above recoveries, the opinion of the Serologist and the evidence of the other witnesses including Talib Hussain (P. W. 17), the trial Court took the following factors as furnishing circumstantial evidence to connect the appellant with the murder of Ma. Bahishtan :-
(i) Mst. Bahishtan, deceased was seen for the last time in the company of the appellant.
(ii) One pair of ear-rings and one amulet which were recovered from the goldsmith Nabi Bakhsh were identified to be the ornaments of the deceased.
14. (i.e) The said ornaments were sold by the appellant to the goldsmith Nabi Bakhsh on the next day of the occurrence.
(iv) The knife was recovered from the bottom of the Nurpur Rajbah at the instance of the appellant.
(v) The appellant's shirt, the ear-rings and the amulet were found to be stained with human blood.
15. Also the learned Judges of the High Court took the above factors, other than the recovery of the knife, as providing circumstantial evidence in support of the prosecution case. Having examined the evidence, we find that certain features are there in this case which give rise to a reasonable doubt as to whether the murder of Mst. Bahishtan was committed by the appellant himself and by none else.
16. P. W. Talib Hussain stated that before the date of occurrence the appellant came to take Mst.
17. Bahishtan to their house in Malka Hans in connection with the fixation of the date of his marriage.
18. He further stated that he had taken the appellant and Mst. Bahishtan along with his three sons in his tonga from his house to Okara and that at Okara the appellant and Mst. Bahishtan along with two out of the three sons had boarded a bus. In view of this evidence, both the Courts below took that Mst. Bahishtan was seen for the last time in the company of the appellant. This last seen evidence, if considered in the light of some other pertinent facts, will appear to be a rather weak piece of evidence. Talib Hussain said that his co-villagers Bhai Khan, Nowsher and Jan Muhammad had travelled in his tonga up to Okara in which he had taken Mst. Bahishtan and the appellant to that place. None of these three persons was examined. Talib Hussain stated that at Okara he had purchased some cloth for his infant son and got a shirt prepared from a tailor there. He further stated that the appellant also had purchased some cloth for himself. No attempt was made to examine any one from Okara to substantiate if the appellant had purchased any cloth or if Talib Hussain had purchased any cloth or got a shirt prepared from a tailor at Okara. Thus, the only material with regard to the alleged `last seen' evidence was the uncorroborated statement of Talib Hussain. There is some indication in his evidence that the appellant had not completely reconciled with Talib Hussain. In his examination-in---Chief, Talib Hussain stated; "After about 14 or 15 days of the return of Mst. Bahishtan, Lal Shah accused had visited our village and had stayed with Khan Potter. Mst. Bahishtan had brought him over to my house, where he stayed for 5 or 6 days. Thereafter he left."
19. It appears from the above statement that, in spite of Mst. Bahishtan's earlier visit to her father's house, the appellant did not go to the house of Talib Hussain, but stayed in the house of Talib Hussain's co-villager Khan Potter. Talib Hussain himself did not go to bring the appellant to his house from the house of Khan Potter, but it was Bahishtan who had to bring him to her house from Khan Potter's house. Had Mst. Bahishtan, by her visit to her father's house, succeeded in bringing about a complete reconciliation there could be no reason for the appellant's staying with a co- villager of Talib Hussain and not going to Talib Hussain's house straightaway. These facts rather go to indicate that there was no full understanding between Talib Hussain and the appellant till before the date of the occurrence. Therefore, the uncorroborated statement of Talib Hussain as regards the `last seen' evidence should be considered with abundant caution.
20. According to the district map, the village Malka Hans is in the area of Pakpattan. It is stated by the learned counsel of both sides that in order to go to Malka Hans from Okara by bus, one is to change the bus at Montgomery and catch another bus for Pakpattan which is in the southern direction. The dead body of Mst. Bahishtan was found at a place within Chak No. 55/S. P. At a distance of about 4 miles towards the left from the main road between Montgomery and Pakpattan. Malka Hans is at a considerable distance from Chak No. 55/S. P. And lies to the right hand side of the Montgomery and Pakpattan Road. There is no evidence whatsoever to show if the appellant and the deceased boarded any bus at Montgomery and alighted there from at some intermediate bus-stop.
21. As regards the two ear-rings and one amulet, Nabi Bakhsh (P. W. 14) stated that he had purchased those ornaments from the appellant on the 25th April 1965 for Rs. 178.12 and that a receipt (Exh. P.
22. Q.) was obtained from the appellant in token of that transaction. He further stated that 3 or 4 days thereafter the police took the appellant to his shop and on that occasion he, at the instance of the appellant, produced the said ornaments and the receipt. P. W. Talib Hussain claimed that he was present at the time of the recovery of the ornaments from the shop of Nabi Bakhsh and that he then identified the ornaments as belonging to his were Mst. Bahishtan. In his defence, the appellant denied to have sold the ornaments to Nabi Bakhsh and stated that he put his thumb-impression on the receipt (Exh. P. Q.) under the pressure of the police. However, neither Talib Hussain, nor Nabi Bakhsh stated if there was any distinguishing mark in the ornaments for enabling their identification. Nabi Bakhsh stated that he had put the amulet into fire in 'order to remove the `lakh'
23. (alloy) from it. After the amulet had been burnt, its identification was likely to have been all the more difficult because of a possible change in its shape on account of heat. It is difficult to understand how it was possible for Talib Hussain to identify even the burnt amulet. However, a further attempt was made on behalf of the prosecution toestablish that the ornaments in question were those of the deceased. For that purpose, Nur Ahmad (P. W. 16) a goldsmith was' examined.
24. This witness stated at the trial that although lie had prepared two ear-rings and one amulet for Talib Hussain, he did not make the ear-rings and the amulet recovered in this case. He was declared hostile and was cross-- examined by the Assistant Public Prosecutor, but nothing substantial could be obtained from him as to the identity of the ear-rings and the amulet in question. Thus, the evidence as regards the ornaments belonging to the deceased was far from satisfactory.
25. Muhammad Yar (P. W. 15) was examined to prove the alleged sale of the ear-rings and the amulet by the appellant to P. W. Nabi Bakhsh. P. W. Muhammad Yar stated that 14 years ago he was present at the shop of a tailor which was opposite to the shop of P. W. Nabi Bakhsh in Pakpattan. He said that he had gone there to bring his clothes from the tailor and at that time the appellant was seen by him selling the ear-rings and the amulet to Nabi Bakhsh. He further stated that Nabi Bakhsh had enquired of him if he knew the appellant and, on his answer in the affirmative, Nabi Bakhsh had paid him Rs. 178.12 as price of the ornaments as per receipt (Exh. P. Q.) to which he also was a signatory as a witness. The name of P. W. Muhammad Yar was not at all mentioned by P. W.
26. Nabi Bakhsh. Nabi Bakhsh did not say that he had wanted to be satisfied as to the identity of the appellant before purchasing the ornaments from him, nor did he say if P. W. Muhammad Yar had, identified the appellant. Muhammad Yar, on his own statement, was present in a tailor's shop opposite to the shop of Nabi Bakhsh. He did not say if the appellant took him from the tailor's shop to the shop of Nabi Bakhsh to become his identifier, nor did he say why he went to the shop of Nabi Bakhsh and, at whose instance. Even in the face of this state of evidence, the learned Judges of the High Court held: "Nabi Bakhsh was interested to obtain satisfactory evidence regarding the identity of the seller, namely, the appellant and it is reasonable to expect the appellant to produce Muhammad Yar (P.
27. W. 15) as a person who vouched for him."
28. This appreciation of the evidence was not correct, and this was due to mis-reading of the evidence. Muhammad Yar stated that the ornaments had already been weighed and the price thereof already settled before he was asked about the identity of the appellant. When Nabi Bakhsh, according to this witness, had already finalised the bargain, there was hardly any necessity for his obtaining the appellant's identity from Muhammad Yar. The receipt (Exh. P. Q.) alleged to have been granted in token of the sale of the ornaments mentions a sum of Rs. 176.12 as the total price, whereas Nabi Bakhsh claimed to have purchased the ornaments for Rs. 178.12. As to the price alleged to have been paid, there was also a discrepancy in the evidence of Muhammad Yar and his statement in the committing Court. Nabi Bakhsh admitted in cross-examination that his son was challaned by the police in a theft case. He also admitted that he had been visiting the police station in connection with `beradari disputes' and that he appeared as a prosecution witness in one or two police cases. Muhammad Yar admitted to have appeared as a prosecution witness in a murder case. Thus, it seems that these two witnesses were in touch with the police and under their influence.
29. As regards the recovery of the knife, Gamey Shah (P. W. 8) and Taj Muhammad (P. W. 21) stated that the appellant, while in custody, led the police to Nurpur Rajhah and pointed out a place and thereupon Nawab Ali (P. W. 12) picked up a knife from the bottom of the canal. The trial Court accepted that the knife provided a circumstantial evidence in this case, but the learned Judges of the High Court rejected this piece of evidence. Although this piece of evidence was rejected by the learned Judges, the evidence of the witnesses to the recovery memo. Of the knife may be looked into along with the evidence about other recoveries for the purpose of showing how unsatisfactory the evidence is. The shirt and chaddar of the appellant were removed from his person on the 28th April 1965 as per memo. (Exh. P. K.). The ornaments were said to have been recovered from the shop of Nabi Bakhsh on the 29th April 1965 as per recovery memo. (Exh. P. R). Lastly, the knife was recovered on the 29th April 1965, vide recovery memo. (Exh P. N.). Gamey Shah and Taj Muhammad were shown to be the witnesses to all these recovery memos., but Gamey Shah, who was also the informant in this case, did not say anything about any of these recoveries. Taj Muhammad (P. W.
30. 21), however, stated that the recovery of the clothes as well as the ornaments was effected on the same day and that the knife was recovered the next day. This statement of Taj Muhammad was not in accordance with the dates borne by-the recovery memos. Exh P. K., P. R., and P. N. Again, there was a serious contradiction between Taj Muhammad's evidence and his statement in the committing. Court with regard to the place from where the knife had been picked up from the canal. Taj Muhammad's evidence goes to show that it was P. W. Nawab Ali alone who had entered the canal and taken out the knife there from, but the evidence of Nawab Ali (P. W. 12) goes to show that other persons also entered the canal. The evidence with regard to the recovery of the articles was thus very unsatisfactory.
31. The last piece of evidence was that some of these articles were found be stained with human blood. The Assistant Chemical Examiner found blood in the shirt of the appellant and also in the ornaments and the knife. He sent these articles and scrapings from the ornaments and the knife to the Serologist according to whom the shirt and the scrapping from the earrings and amulet were found to be stained with human blood. As stated earlier, P. W. Nabi Bakhsh admitted that he had put the amulet (Exh. P. 18) into fire in order to remove the alloy from it. The amulet was sent to the Chemical Examiner after it had been burnt. It is difficult to accept that human blood could be found in the amulet even after it had been put to fire. This pertinent fact appearing from the evidence of P. W. Nabi Bakhsh escaped the notice of the learned Judges. When human blood was fund in the scrapings from the amulet in spite of its having been burnt, the inference is that the human blood was put on the amulet after its recovery and before its dispatch to the examiner. If that was so, a serious doubt must be cast as regards the finding of human blood on the ear-rings and in the shirt of the appellant. The appellant was arrested at least four days after the incident. It was not expected of him to remain in his own house with his blood-stained shirt for all these days and to appear before the police with that shirt. He had an ample opportunity to change his shirt or to wash it out altogether. In these circumstances, the opinion of the Serologist that the shirt and the scrapings from the ear-rings and the amulet were found by him to be stained with human blood was of no consequence, even if human blood was indeed found in those articles.
32. The value of circumstantial evidence has to be assessed on consideration that it must be such as not to admit of more than one conclusion, and, in order to find the guilt of a person accused of a criminal charge, the facts proved must be incompatible with his innocence and incapable of any explanation upon any other reasonable hypothesis than that of his guilt. This tehsil has not been satisfied in this case. The pieces of circumstantial evidence analyzed hereinbefore are not of such nature that they lead to the inevitable conclusion that the appellant and no body else was responsible for the murder of Mst. Bahishtan. Having regard to the nature of the evidence, a reasonable doubt does arise as to the guilt of the appellant for the alleged murder. He is, accordingly, entitled to a benefit of doubt. We therefore, allow the appeal, set aside his conviction and sentence and direct that he shall be set at liberty forthwith.