' Z. A. CHANNA , J.-Appellant Haji, a 50 years old labourer, has been convicted by a learned Additional Sessions Judge, Jacobabad, under section 304 P. P. C., for committing the murder of one Muhammad Yusuf, and has been sentenced for the said offence to death and also to pay a fine of Rs, 2,000 or in default to undergo R. I. For 2 years. The appellant was also tried and convicted by the same Judge of an offence under section 13(d) of the Arms Ordinance, for being in possession of an unlicensed fire-arm and for this offence he has been sentenced to R. I. For one year. The appellant has appealed against his convictions and sentences. His case has also been referred to us by the learned Additional Sessions Judge for confirmation of the death sentence awarded to him. This judgment will dispose of both the appeal and the reference.
2. The murder of deceased Muhammad Yusuf is alleged to have been committed on the night intervening between the first and the second of May 51973, in the courtyard of his house in Jagir Rindwahi, Taluka, Jacobabad. It is illeged that on that night the deceased was sleeping on a cot in the courtyard of his house while his wife, Mat. Girnaz, was sleeping with her children on an adjoining cot, when suddenly she woke up on some noise and saw 3 persons standing by the side of the cot of her husband, whom she identified. By the light of a lantern which was burning nearby, to be the present appellant, and the 2 absconders, Soomar and Shah Nawaz, who are stated to be respectively the brother and the nephew of the appellant. It is alleged that the appellant and his two companions were armed with guns and Mst. Girnaz saw the culprits firing at the deceased. Due to the gunshots not only the deceased was hit but even Mat. Girnaz sustained injuries. After firing the gunshots at the deceased and Mst. Girnaz, the assailants made good their escape. Mst. Girnaz raised an outcry on which her neighbours, Muhammad Hassan, the brother of the deceased, and Naukar, the son of Muhammad Hassan, turned up. By that time deceased Muhammad Yusuf had succumbed to his injuries. Mat. Girnaz gave the two witnesses the names of the appellant and his two companions as the persons who had fired the fatal shots at the deceased and bad also caused injuries to her.
3. The first report in the case was filed by Naukar on 2.5-1973, at 8-30 a.m., at Saddar Police Station, Jacobabad, which is at a distance of about 3 miles from the scene of offence. It was recorded by S. H.
0. Rashid Ahmed who accompanied first informant Naukar to the scene of offence. The S. H.
0. Prepared mashi nama of the scene of offence and also an inquest report of the dead body of Muhammad Yusuf. He then recorded the statements of Mst. Girnaz, Muhammad Hassan and Achar.
First informant Naukar produced before the S. H.
0. a lantern which is said to have been burning about 4 feet away from the bed of the deceased.
Since Mat. Girnaz had injuries on her person, she was sent for treatment to the Civil Hospital, XI Jacobabad. On 29.9-1973, the appellant was arrested by S. H.
0. Rahmat All of Math Police Station. The two companions of the appellant, Soomar and Shahawaz, are said to be still absconders.
4. The autopsy on the deceased was conducted by Dr. Imdad Ali, Medical Officer, Civil Hospital, Jacobabad, who found the following external injuries on the person of the deceased :- "(1) 9 lacerated punctured type of wounds about I" in diameter each occupying an area of 2" in diameter on right scapular region with charring and blackening and bleeding from the wound.
(2) 4 lacerated wounds about r in diameter each with bleeding medial to injury No, 1.
(3) Lacerated punctured type of wound about rxrx cavity deep on lower sternum,"
5. On internal examination, the Medical Officer found the thoraic walls, right lung, the pericordium, the heart and the pleura of the deceased lacerated and punctured at the site of the injuries. He also found the blood vessels ruptured at the site of the injuries. The stomach was intact and contained paste.
6. In the opinion of the Medical Officer the above injuries were caused by discharge from fire-arm, fired from a distance of within 12 feet, and the injuries were sufficient to cause death in the ordinary course of nature. In his opinion, the probable time that had elapsed between the inj uries and the death was between 5 to 10 minutes and between death and the post mortem within 12 hours, It may also be stated that the post-mortem was conducted on 2-5-1973, at about 1.30 p.m.
7. The defence of the appellant was of complete denial. He further denied that he had absconded after the incident. No evidence in defence was led by the appellant.
8. The case against the appellant hinges on the testimony of Mst. Girnaz, who is the sole eye- witness to the incident. So far as first informant Naukar and Muhammad Hassan are concerned, they admittedly did not see the incident and were informed of the incident and the names of the culprits by Mst. Girnaz. The testimony of Mst. Girnaz is thus of vital importance and has to be examined with care in order to determine whether she is a truthful witness and reliance could be placed on her testimony. It may be mentioned that Mst. Girnaz was not examined in the Sessions Court as she is stated to have been unavailable and her statement recorded in the committal Court was used as substantive evidence in the case under the provisions of section 33 of the Evidence Act. In her evidence in the committal Court, she has stated that she woke up on a noise and saw the appellant and his companions firing from their guns at the deceased who died immediately in consequence of the injuries sustained by him. She has further testified that due to the firing she also had sustained injuries. Since she had sustained injuries in the incident, her presence at the scene of offence cannot be disputed. Moreover, being the wife of the deceased, she was a most natural witness in the circumstances.
9. Mr. Muhammad Hayat Junejo, the learned counsel for the appellant, has assailed the testimony of Mst. Girnaz on various grounds. His first Ground of attack was that the learned Additional Sessions Judge erred in using her statement in the committal Court as there was no adequate material before him for coming to the finding that the witness could not be found or was incapable of giving evidence. In support of this contention. The learned counsel referred us to the evidence of first informant Nankin and P. W. Muhammad Hussain. The former has stated in his evidence that after the murder of the deceased, Mst. Girlias was with Sardar Chakar Khan. So far as P. W.
Muhammad Hassan is concerned be has stated that he had information that Mt. Girnaz was residing in Pat Feeder with her mother and cousin Machhi Tallani. The learned counsel submitted that instead of sending summons for her to her old address in Doh Jagir Rindhwalbi, enquiries should have been made from Sardu Chakar Khan about her or the summons should have been sent to her on the address in Pat Feeder where she was stated to be living with her relatives. The learned counsel referred us to 4 authorities in support of his contention that where it has not been affirmatively established that the witness cannot be found or is not available, his prior evidence cannot be used for the purposes of section 33 of the Evidence Act. These authorities have been reported as Chainchal Singh v. Emperor (1), Aminul Hague v. Crown (2), Allah Dina v. State (3) and All Nyder v. State (4).
10. In the Privy Council case, the main witness did not appear at the Sessions trial on the ground that he was seriously ill and was unable to attend the Court. His evidence in the committal Court was accordingly used at the trial against the accused under section 33 of the Evidence Act. The Privy Council held that the previous statement of the witness was wrongly admitted in evidence and transferred to the record of the Sessions Court and observed as follows "Where it is desired to have recourse to this section on the ground that a witness is incapable of giving evidence that fact must be proved, and proved strictly. It is an elementary right of an accused person or a litigant in a civil suit that a witness who is to testify against him should give his evidence before the Court trying the case which then has the opportunity of seeing the witness and observing his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition."
11. In the Federal Court case, reliance was placed on the above decision of their Lordships of the Privy Council and it was held that when evidence given by a witness in a judicial proceeding is sought to be used under section 33 in a subsequent judicial proceeding or in a later stage of the same judicial proceeding on the ground that the witness is incapable of giving evidence that fact must ba proved strictly. It was further hell by their Lordships of the Federal Court that the fact that the counsel of the accused consented to the evidence of the witness being read under section 33 of the 'Evidence Act does not do away with the necessity of the Court being satisfied by proof that the witness was incapable of giving evidence.
12. In Allah Ditto's case the investigating Police Officer stated that a particular witness could not be served in spite of his best efforts. The Supreme Court found that this did not mean that the investigating officer had himself attempted to serve summons upon the witness since such work is ordinarily entrusted to Constables. No Constable, however, was produced to say that lie had been given the summons to serve on the witness or that he was unable to trace the witness so as to effect service upon him. In {{FOOT NOTE}}
(1) AIR 1946 P 1 (2) PLD 1952 FC 62
(3) PLD 1958 SC (Pak.) 29G (4) PLD 1958 SC (Pak.) 392 {{FOOT NOTE}} these circumstances, the Supreme Court, relying upon the decision in Chainchal Singh's case, held that there was no satisfactory evidence that the witness could not be found.
13. In Hyder All's case, certain formal witnesses were not summoned at the trial at the suggestion of the Public Prosecutor, and instead their statements recorded by the committing Magistrate were transferred to the Sessions record on the ground that their depositions were of a formal nature.
Their Lordships of the Supreme Court observed that there was a flagrant defect of the provisions of section 33 of the Evidence Act in transferring such statements without laying the foundations for that course by saying that the witnesses were incapable of giving evidence or that their presence could not be secured without an amount of delay or expense which under the circumstances of the case, the Court could justifiably record as unreasonable. The Supreme Court held that the procedure adopted was not warranted by the reasons mentioned by the trial Judge and as such the statements of the prosecution witnesses, under the circumstances, were to be kept out of consideration as they could not be said legally to form part of the evidence in that case.
14. Tho circumstances, in the present case, however, are different from the facts on the basis of which the 4 reported decisions have proceeded. In the instant case, police constable Abdul Aziz, to whom the process for service on Mst. Girnaz was entrusted, was examined as a witness in the Sessions Court. The summons were issued on 3 different occasions and on each of these occasions the police constable attempted to serve the witness but was unable to locate her as she had gone away to an unknown place and there was no likelihood of her being served In the near future. On each of these occasions he had made enquiries, recorded the statements of witnesses, including that of Muhammad Hassan, who had informed him that the whereabouts cf Mst. Girnaz were not known. We are unable to find any substance in the contention of Mr. Muhammad Hayat Junejo that summons should have been sent to the witness care of Sardar Chakar Khan or her relations in view of the fact that according to the first informant, Naukar, she was staying with Sardar Chakar Khan after the murder of her husband, as there is no indication that at the time of the trial of the case in the Sessions Court she was residing with him. Similarly, sending of summons to the witness care of her relations would have served no useful purpose as all that P. W. Hassan states is that according to his information she was staying with her relations in Pat Feeder area, but he gave no address of her whereabouts. Pat Feeder area is a vast area and to expect the process server to locate her whereabouts in that area without knowing in what particular spot he should have looked for the witness would have been futile. We are, therefore, satisfied, on the basis of the evidence of the process server and the enquiries made by him, that whereabouts of Mst. Girnaz were not known and that she was not available for examination in A the Sessions Court and consequently her statement in the committal Court was rightly brought on the record of the Sessions Court under the provisions of section 33 of the Evidence Act.
15. It next falls to be considered whether the learned trial Judge was right in basing conviction of the appellant practically on the solitary word of Mst. Girnaz. She has admitted that her sister, Mst..
Bhaiti, was abducted some 12 years earlier by absconder, Soomar, the brother of the appellant. She has further stated that her brother, Ghous Bux, and her cousin, Amir Bux, bad killed M.o. Bhaiti, for having gone with the deceased and had also killed Mst. Zarina, the wife of the appellant, and for those murders her brother and cousin were awarded transportation for life. She has also stated that while her brother was in Jail she had been abducted by the present appellant but after her brother was released from Jail, he had rescued her from the appellant. As such, there must have been considerable bitterness between the witness and her relatives on the one side and the appellant party on the other side. Furthermore, there were also disputes and hostility between P. W.
Muhammad Hassan and the appellant party, for according to the first information report, absconder Soomar, some 7 or 8 years previously, had set fire to the 'Sarha' dera of P. W.
Muhammad Hassan. The witness, therefore, would appear, in our humble opinion, to be an interested and even a hostile ono. In the circumstances, her evidence is to be examined with great care and suspicion, and cannot be made the basis of conviction, especially in a case involving capital sentence, unless it is materially corroborated. It is a well settled rule that in cases involving capital sentence the evidence must come from unimpeachable sources.
16. An examination of Mit. Girnaz's evidence shows that it is not possible to place implicit reliance on her testimony. Apart from the fact that she is an interested and hostile witness, who had a motive for implicating the appellant and his companions, there are factors in her evidence which cast the shadow of suspicion thereon. According to her, the murder took place at dawn time while according to both first informant Naukar and P. W. Muhammad Hassan, it took place at midnight.
The testimony or the two witnesses as to the time of the murder appears to be nearer the truth in view of the medical evidence which not only shows that the time which elapsed between death and the conducting of the post-mortem, which was at 1-30 p.m., was about 12 hours from the death of the deceased, and that fuither there was a thick paste found in the stomach of the deceased, suggesting that he had taken his last meal within about 6 hours of his murder. Villagers are known usually to take their night meals at sunset time. In the month of May when the incident occurred, the sunset time would have been about 7-30 p.m. Thus, according to the post-mortem report, the time of death would be round about or 1-30 a.m , which is more close to the time given by the first informant Naukar and P. W. Muhammad Hassan rather than that given by Mst. Girnaz. If the murder did take place at about midnight, as stated by the first informant Naukar and P. W.
Muhammad Hassan, then there was considerable delay in the lodging of the F. I. R. In the month of May the sunrise would be at about 5-00 a.m. And since the Police Station was only 3 miles away from the scene of offence, even if the complainant had started for the Police Station at sunrise, he should have reached the Police Station and lodged his F. I. R. By 6.00 a.m. The fact that the F. I. R.
Was lodged at 8.30 a m, suggests that the complainant left for the Police Station at about 7-30 a m. It has not been explained why this delay occurred in the lodging of the F. I. R. If the names of all the 3 assailants were known to the complainant and the witnesses. The delay suggests to us that either the names of the assailants were not known to the complainant party or possibly some additions in the names were later on made, possibly in consultation with the first informant Naukar and P. W. Muhammad Hassan.
17. At this stage we would also like to mention that we are by no means satisfied that Mst. Girnaz was in a position to positively and unmistakably identify her assailants. The night admittedly was a dark one and according to her she had identified the assailants by the flickering light of a lantern, whose wick must have been turned low, as is the usual custom with the villagers when retiring for the night. In such circumstances, identification of 3 persons by a solitary witness cannot be considered to be reliable or safe.
18. Mr. S. Nasiruddin, the learned counsel for the State, has referred to us 3 decisions where the testimony of a sole eye-witness has been accepted in a murder case. These are repotted as Roshan v. State (1), Ahsrn Baig v. State (2) and Ahmed Ntsar v. State (3). In all these cases, however, the murder took place in day light and, therefore, identification was not in much doubt. 1 he circumstances of the present case, as already stated, are quite different where identification was made under conditions which at best may be described as difficult.
19. The learned Additional Sessions Judge has also considered the question of abscondence of the appellant and viewed the same as a circumstantial piece of evidence against the appellant. There is no doubt that the appellant was arrested nearly 5 months after the incident and at a considerable distance from the scene of offence, but at the same time, there is no evidence on record to show that the appellant was not found at his house or that any attempt lied been made by the Investigating Officer in the instant case to locate the appeilant and had failed to do so. In any case, abscondence, at best, is a very weak type of e idence for it is motivated by fear of the police and fear may be generated in the minds of both innocent persons as well as of the guilty parties. If a person apprehends his arrest he may resort to flight rather than to stay and face the consequence of a false charge in which he may he ultimately let off.
20. We have given our very careful consideration to the entire evidence in the case and have come to the conclusion that the guilt of the appellant is not free from reasonable doubt. We would accordingly give the benefit of doubt to the appellant, set aside his conviction and sentence and acquit him. The appellant should be forthwith set at liberty if not required in any other case. The reference for confirmation of his death sentence is rejected. {{FOOT NOTE}}
(1) PLD 1977 SC 557 (2) PLD 1977 Lah. 1383 {{FOOT NOTE}}
(3) 1977 SCMR 175