1. DORAB PATEL, J. Mst. Ainir Begum was murdered at about 3-30 a.m. On 14-5-1973 in a house owned by the appellant on Talagang Road in village Oderwal in Tehsil Chakwal. The murder was a most callous and brutal murder and the appellant was tried for the murder by the Sessions Court Jhehtm.
2. Mst. Akhtar Bibi, the daughter of the deceased, claimed to have been present at the murder and she gave evidence about it. She also gave evidence about the motive for the murder. This was that she and her mother bad gone by a bus from their village to Chakwal on 13-5-1973 in order to see off Ghulam Akbar (the witness's brother). This Ghulam Akbar toarded his bus for Lahore at about 1- 00 p.m. The witness and her mother then went for shopping in village Chakwal and happened to meet the appellant, whom they knew. The appellant invited them to his house, as village Oderwal was only 24 miles away. They acceded to his request, but the appellant had two houses, one in which he resided with his family, and the other on Talangang Road, and the appellant took them to this other house on Talagang Road. After dinner, the witness, her mother and the appellant all went to bed. The three beds were in the Varandah of the house. At about mid-night, according to the witness, the appellant made passes at her, but she repulsed him and reprimanded him, therefore, he went to bed again. At about 3-00 or 3-30 a.m. He again came and dragged her forcibly into a room in the house. She raised an alarm which awoke her mother who rushed in to rescue her, therefore, the appellant took out a razor from his pocket and cut her throat with it.
3. The witness then claims to have raised another alarm which attracted P. W. Ghulam Muhammad, relation of hers to the spot. She told him about the occurrence, therefore, he went into the room, and Mst. Amir Begum died in their presence. They then got out of the house, and she took a bus to reach her village Balkassar (which was about nine miles away) in order to inform her father and brother of the occurrence. Her father and brother were not in the house when she reached home.
4. They were, therefore, sent for and the informed them of the occurrence. She then returned by bus to Chakwal with her brother P. W. Muhammad Sadiq to lodge an F. I. R. But ax they met P. W. Abdul Majid Kiani, S. H. O. Of the local Police Station, at the Chakwal bus stand, they informed him then and there of the occurrence. This was at 10-30 a.m.
5. P. W. Abdul Majid Kayani then went with them to the place of occurrence and commenced investigations. The room in which the dead body of the deceased was lying was found to be locked. But before they could even decide what to do, two gentlemen Mehdi Khan and Muhammad A.I came with the appellant, who produced the key with which the lock was opened, and P. W. Abdul Majid Kiani commenced investigations, recovered blood--stained clothes, blood stained earth from under the cot and also secured a blood-stained razor which was produced by the appellant from under the bedding of a cot in the room.
6. The appellant was arrested in due course and tried for murder: The prosecution examined P. W.
7. Mst. Akhtar Bibi as an eye-witness of the occurrence and P. W. Ghulam Muhammad as a corroboratory witness. It also examined P. W. Abdul Majid Kiani the Investigation Officer to prove the recoveries. It also examined other witnesses such as P. W. Dr. Asghar Hamid Qureshi who had carried out the post-mortem of the deceased and proved that the deceased had 17 incised wounds and abrasions.
8. The appellant pleaded innocence and said that he had been falsely implicated on account of political enmities in that village. He, however, did not produce any evidence in his defence.
9. The learned Sessions Judge held that there were material discrepancies in the evidence of P. W.
10. Ghulam Muhammad. Further this witness lived in another village almost five miles from the place of occurrence, yet he clamed to have reached at the place of occurrence on hearing the alarm at 3-30 a.m. Therefore, the learned Sessions Judge rejected his evidence as absolutely false. Thus the case rested principally on. The evidence of P. W. Mst. Akhtar Bibi who was about 15 at the time of occurrence. Further, as pointed out by the learned Sessions Judge, this witness was a pe:son of easy virtue but, he held that this would not by itself by a sufficient ground for rejecting her evidence. He also observed that there was delay in reporting the occurrence to the police, but he was of the view that Vst. Akbtar Bibi was young and her mother's murder have left her "bewildered and in a fix as to what to do". Now although he accepted the explanation for the delay in lodging the F. I. R., he rejected as false the motive given in the F., I. R. For the crime. Then after pointing out the infirmities in the witness---s evidence, the learned Sessions Judge went on to hold that the evidence of this solitary witness was sufficient to prove the charge of murder, because it was corroborated by the usual recoveries, namely : the recovery of blood-stained earth from the place of occurrence and the blood-stained clothes. Now, we pointed out earlier that B. W. Abdul Majid Kiani claimed to have recovered the blood-stained razor at the appellant's instance, but the learned Sessions Judge rejected the evidence of this recovery as false. He only accepted the evidence about the recovery of blood-stained earth and clothes, and as he held that they corroborated Mst. Akhtar Bibi's evidence. By his judgment dated 27-11-1974 he convicted the appellant for murder and sentenced him to death.
11. Mr. Anwar's submission was that the concurrent findings against the petitioner were based on a misreading of evidence and we would now turn to the pleas advanced by learned counsel in support of his submission. However, before doing so, we would observe that although a conviction can be based on the evidence of a solitary eye-witness, as a rule of prudence, Court do not base a conviction- on the evidence of solitary eye-witnesses, unless that eye-witness is absolutely reliable or unless his evidence is corroborated by reliable evidence.
12. Turning now to Mr. Anwar's pleas; he submitted that both the Courts had accepted P. W. Mst. Akhtar Bibi's explanation of her delay in lodging the F. I. R. By misreading her evidence. As -the delay was of at least seven hours, the burden was on the prosecution to explain this delay, and the witness's explanation was that she had gone home to inform her father about the murder. Both the Courts accepted this explanation on the ground that the witness must have been totally bewildered by what had happened and we agree with the view that the witness's explanation that she had gone to report the occurrence to her father was reasonable and natural. But in view of the evidence of P.
13. W. Muhammad Bashir about the frequency of bus serviows between the place of occurrence and the witness's home, it is clear that"the witness took far more time than was required for informing her father and coming back to lodge the F. I. R. The other and more important circumstance, which was also ignored by both the Courts, was that the witness has claimed that her mother's cousin, P: W. Ghulam Muhammad, had rushed to the place of occurrence at 3-30 a.m., and had seen her - off at the bus ston when she returned home to inform her father of the murder Now as she returned home to inform her father, P. W. Ghulam Muhammad could easily have lodged the F. I. R., as the Police Station was within walking distance. It is true that the concurent finding of the Courts was that P. W. Ghulam Muhammad had never been at the place of occurrence,I and we will presently,revert to this finding, but on the case as outlined!B by the prosecution, there is no satisfactory explanation of the delay in lodging' the F. I. R.
14. Learned counsel also submitted that the Courts had erred in accepting the evidence of P. W. Mst.
15. Akhtar Bibi about the manner in which she and her mother went to the appellant's house on the fateful night. Now what the witness said in this connection was that after she and her mother had completed their shopping they went to the bus stop at Chakwal in order to take a bus for returning home. They reached the bus stop at about 4-30 p.m. And the appellant, who happened to be there, invited them to come to high house. Accordingly, they immediately went with him to his house, and although the appellant had two houses, one in which he lived with his wife and children and another house, they went to-this other house. Further, the witness was emphatic that this chance encounter with the appellant was at 4-30 p.m., she was equally emphatic that it was at sun-set.
16. Sun-set in May would be after seven p.m. And as is apparent from her prolonged cross- examination, the witness was far two clever not to know when the sun would set in the mouth of May. This is not unimportant to the question of her veracity because the appellant bad two houses, and according to the witness, the appellant insisted on taking them to the house outside the village in which no one lived. As the witness said that her mother had objected to going to this house, and as she said that they had met the appellant at 4-30 p.m. We are unable to understand why the mother and the witness could not go back to the bus stop and take a bus to return home instead of taking the risk of spending the night alone with a comparative stranger in an empty house.
17. Mr. Anwar then referred us to the witness's evidence about the manner in which they slept on the fateful night. She said that the appellant placed three cots "at a distance of about four or five paces from the gate. It was till moon light when we had gone to sleep". The witness also said that the wall of the house was only 2 or 3 feet high, and as the house was on a road, any passer-by would have seen that the appellant, who was married, was sleeping with other females. But this is impossible to believe.
18. Next, according to the witness, the appellant had tried to make a pass at her at midnight, but she had brushed him off and spent the night in fear. Then when the appellant made another pass at her 3 or 4 hours later, she had raised an alarm which attracted her mother, and as her mother tried to protect her, she was murdered. This part of the evidence has rightly been rejected by both the Courts as false. But having rejected this evidence, the Courts held that their finding in this respect was not material because the evidence that was rejected related to the motive for the murder.
19. With respect, we cannot agree with this view for more than one reason. In the first place, the evidence related not merely to the motive for the murder but was an integral part of the description of the murder. Secondly, there will be many cases in which the failure of the prosecution to prove the motive for a murder will not be material. But this is not so in the instant case, because the deceased had 17 incised wounds in addition to abrasions. A brutal and callous murder of this type could only have been motivated by some very violent grudge, therefore, this a case in which the prosecution's) failure to prove the motive for the crime reacts against its case.
20. Mr. Anwar then submitted that P. W. Mst. Akhtar Bibi's evidence was fit to be rejected on the further ground that it was inconsistent with the medical evidence, whilst according to Mr. Bilal the medical evidence corroborated the ocular evidence, because it supported P. W. Mst. Akhtar Bibi s statement that the murder was at about 3 or 3-30 a.m. P. W. Dr. Asghar Hamid Qureshi, who carried out the post-mortem of the deceased, said that he had commenced it at 4 p.m. On 14th June 1973 and that the deceased had been murdered between 12 of 18 hours earlier. But he qualified his estimate of the duration between the post-mortem and the time of death by the further observation "the time between death and post-mortem could be further stretched by two hours on either side."
21. This means that the occurrence could have taken place as early as 10 p.m. On the 13th June or 2t around 3 or 3-30 a.m., on 14th June 1973 as stated by the witness. Obviously, this evidence is far too vague to be of any corroboratory value, and, on the other hand, it is clear from the medical evidence that the deceased resisted violently the attack on her. Now the two fatal wounds were the wounds on her neck, one of which 8" X 2J' and Dr. Hamid Qureshi described it as "Large incised wound 8' X 2f X vertebral column deep cutting all the neck vessels through the upper part of the larynx and all the muscles of the neck, situated on the front of the upper part of the neck, starting from right side going to the left side more on the left side."
22. We are disturbed by the question whether a wound of this nature could have been inflicted by a solitary assailant on a victim who was struggling as the deceased did. As the deceased had received 15 incised wounds on her hands, and as the weapon used was a razor, is it unlikely that the assailant would not have received some cut or injury in the course of his violent struggle with the deceased. But as it is not even alleged that the, appellant had any injury on his person, although he was arrested early on, the morning of 14th June 1973, the medical evidence casts some doubt on the ocular evidence.
23. Mr. Anwar then referred us to other discrepancies between the statement of P. W. Mst. Akhtar Bibi in the lower Court and her evidence in the Sessions Court, and to the discrepancies between her evidence and that of P. W. Ghulam Muhammad. It is not necessary to examine these discrepancies, because of the concurrent finding of both the Courts that P. W. Ghulam Muhammad had never been at the place of occurrence. But this witness was the cousin of P. W. Mst. Akhtar Bibi's mother, and as P. W. Mst. Akhta Bibi had stated again and again that he had rushed over on hearing her alarm in the early hours of the morning, the finding that P. W. Ghulam Muhammad had never been at the place of occurrence necessarily means that P. W. Mst. Akhtar Bibi had deliberately given false evidence on a very material E particular in order to improve the prosecution case, therefore, even on the footing that the case is one of sifting the grain from the chaff, and that was the concurrent finding of the Courts, what the Courts over-looked wa that the chaff was so heavily intermingled with the grain that P. W. Ms t. Akhtar Bibi's evidence was not fit to be accepted without corroboration by independent evidence of an absolutely reliable nature. Therefore, the question, is whether the recoveries of the blood stained earth and of the blood stained clothes (including the bedding of the cot on which the deceased was murdered) are sufficient to cure the infirmities in the evidence of this solitary eye-witness.
24. Mr. Bilal submitted that the recoveries furnished very strong corro--boration of the ocular evidence because they proved that the murder had been committed in the appellant's house. We agree with learned counsel that the murder had been committed in the appellant's house, but even Mst.
25. Akhtar Bibi admitted that the appellant was living with his family I another house in the village. This means that the appellant was only I constructive possession of the house where the murder took place, but the prosecution should have proved that he was occupying it at the relevant. Time. Nor would this have been difficult, because there were houses in the vicinity, and witnesses could have been examined to show that the appellant was in physical possession of the house even though he lived in another, house. Not only did the prosecution not produce such evidence, but it did not also produce evidence to show that the appellant was not in his house with his family on the fateful night, therefore, the fact that the murder took place in a house owned by him is of very little corroboratory value.
26. Mr. Bilal then submitted that the recovery of the key of the house was sufficient to prove that the house was in the appellant's occupation. But the key was produced by the appellant in the presence of Mehdi Khan and Muhammad A.I who had attested the recovery memo by which the key had been secured, and as the prosecution only examined P. W. Abdul Majid Kiani to prove the recovery, Mr. Bilal submitted that the evidence of Investigation Officer was sufficient to prove the recovery because the investigation Officer had no reason to implicate the appellant falsely, and we were referred to authority in this respect. We are aware that this Court has held that a recovery can be proved by the evidence of the Investigation officer alone. But the question is always of the facts and circumstances of the case, and as pointed out by this Court in Nazir v. The State (PLD 1962SC269) corro--boration need not be of the same probative force in all cases. Thus, for example, an interested witness may be a witness of truth, and the evidentiary value of corroboratory evidence in such a case need not be of the same probative force as in a case in which the witness is not very reliable, all the G more so, when the prosecution case rests on the evidence of a solitary eye--witness. But the prosecution case in this appeal rests on the evidence of solitary eye-witness whose evidence is full of infirmities, therefore, the evidence of the Investigation Officer is not of sufficient probative force to furnish corroboration of Mst. Akhtar Bibi's evidence.