1. MUHAMMAD HALEEM, J.-This appeal is by special leave of this Court against the judgment dated 17th April, 1974, of the Lahore High Court, by watch Criminal Appeal No. 329 of 1971 was dismissed and the conviction of the appellant under section 302, and the sentence of transportation for life imposed therefore was confirmed.
2. The prosecution case was that Mat. Sardaran, wife of the appellant complained to her parents that her husband (appellant) was leading an immoral life and in spite of her remonstration he bad persisted in it, upon which they tried to persuade him to desist from it but he did not pay any heed to it. About 15 or 16 days before the occurrence. Mst. Sardaran again complained to her parents that on her protest the appellant had threatened to till her. She was pregnant and had a daughter, aged two years, from the wedlock. Her mother; Mst. Pathani, thereupon brought her to her house.
3. The appellant being a Forest Guard, was posted at Miani and his beat attended to the house of Malik which is about a miles from there. Six or seven days thereafter the appellant carne to her parents' house to take her back upon which they did not allow her to go which led to a quarrel between them. The appellant became annoyed and left the house. On 11th February, 1969, at Degarwala, he again came to the house armed with a gun and insisted that Mst. Sardaran should accompany him which he again resisted. Thereafter he left the house and went to the Dera of Akbar which was close to the house and returned alongwith him and attempted forcibly to take away Msr. Sardaran but she declined to go without the consent of her parents. This infuriated him and he fired a shot at her which struck her on her chest. Akbar, who had a hatchet, caused a blow with it in her face. Thereafter they decamped from there. Mst. Sardaran expired at the spot. The incident was witnessed by her father, Malik, bar mother and one Muhammad Akbar the Manager of the lands of Malakand landlord. Ikramuilah, who was sitting near Malik tend smoking Huqqa.
4. Leaving the others near the dead body, Malik proceeded to lodge the report but on tie way he was informed by a Mubajar that the Sub-inspector was at Railway Station Makkuwal whereupon he went there and met him who recorded his statement at 10-30 p.m. Which was treated as the F. I. R.
5. Bloodstained earth was secured from the courtyard of the house of Malik which was proved to be stained with human blood. A blood--stained hatchet was also recovered from the spot with which Akbar was alleged to be armed and left by him while escaping from there. The appellant was arrested alongwith his licensed gun on 19th February, 1969, but as no crime-empty was recovered it could not be established to be the crime weapon.
6. At the trial the prosecution examined Malik P. W. 6, Mst. Pathani P- W- 7 and Akbar P. W.
8. It was Malik P. W. Who supported the prosecution case in its entirety. The other two witnesses were declared hostile and their committal Court depositions were brought on the file of the Sessions Court under section 288 of the Criminal Procedure Code. The appellant denied his involvement in the crime and only admitted the seizure of his licensed gun.
7. The trial Court placed implicit reliance on the testimony of Malik. As far Mst. Pathani and Akbar, it held that they had been won over and bad resiled from their earlier version to save the appellant from punishment. Accordingly it acted on their committal Court depositions which was substantive evidence in the case and stood duly corroborated by the testimony of Malik. So far as the guilt of the appellant was concerned, the trial Court was firm in concluding that it was established beyond reasonable doubt.
8. As for Akbar, it is a matter of record that he was placed in column 2 in the Challan, as, according to the investigating officer, one Ahmad; a common relative of the parties, who, with their consent, acted as a Miani in regard to the innocence or guilt of Akbar took an oath in the Jamia Mosque of Miani that Akbar was not involved in the crime and after satisfying himself produced an affidavit in support of this assertion, which allegedly bore the thumb-impression of Malik. It was, therefore, that the investigating officer took his innocence for granted and acted accordingly. The trial Court also acted on it and gave him the benefit of doubt and acquitted him. The appellant was convicted under section 302, and sentenced to transportation for life as in its opinion "there was a subsisting provocation--" for the appellant to act as he did.
9. The learned Single Judge, on appeal, confirmed the conviction of the appellant. In holding so the learned Single Judge hold Malik to be a disinterested witness as he had no motive to falsely implicate the appellant. In addition to it, it was further held that his statement was consistent wick the F. I. R. As for the other two witnesses, the learned Single Judge held that till the committal stage they had fully supported the prosecution case and there was no reason for Mst. Pathani or, for that matter, Akbar to falsely implicate the appellant. The learned Single Judge further held that subsequently they had changed from their earlier statements probably because they were influenced to do so by Ikramullah. Therefore, he felt satisfied that their earlier statements were "genuine" and reflected the correct picture of the incident and acted on them while rejecting the appeal.
10. Leave to appeal was granted to consider whether the conviction could rest on the ocular testimony of a sole eyewitness when the other two witnesses had resoled from their earlier version. The further question that poses for consideration is as to whether the evidence could be relied upon as against the appellant when it was not believed as against Akbar, the acquitted accused.
11. It was contended that the deceased was killed at Rotiwela while the inmates of the house were asleep and the appellant and Akbar were implicated on account of enmity which existed between Karam Ali. The sister's son of Mst. Pathani and Taja the paternal uncle of the appellant and Akbar. In this connection it was further urged that Mst. Pathani brought the deceased from the house of appellant because of this enmity.
12. As will be presently seen this contention has no substance. The alleged enmity cannot be pressed as against Malik who had no reason to falsely implicate his son-in-law. As for Mst. Pathani is difficult to believe that for the alleged enmity which is indirect she too would be so motivated soot to falsely implicate her own son-in-law. There is nothing on record of establish that their relations were strained. The appellant occasionally visited the house of her parents and that she lived with him until she was brought back. She had a daughter from him who was aged two years and at the time of her demise she was pregnant. There is also a technical flaw in the submission as no explanation was extracted from either Malik or Mst. Pathani as to whether they bad brought the deceased to their house on account of the alleged enmity. It is true that the deseed lead complained to her parents about the conduct of the appellant but to me it appears that she was at an advanced stage of pregnancy and therefore her mother must have brought her for delivery at her own house as is the usual Custom.
13. According to the site plan and the evidence on record the blood-stained earth was secured from the courtyard which evidently shows that the incident must have occurred during day time as otherwise its presence in the courtyard cannot be accounted for. There is nothing on record to lay a foundation for raising an inference that the deceased was killed a night, for, in that case there would have been bleed on the cot or on the ground inside the Kotha. There was also no occasion for the deceased to have slept outside the Kotha as in the month of February it is rather sold and people sleep under cover to avoid the rigours of a cold night. The time of occurrence is further established from the medical evidence which not only shows that she was killed a few hours after her mid-day meal as undigested food was found in her stomach but also the probable time of her death corresponds with the time stated in the F. I. R. The presence of Malik and Mst. Pathani cannot also be denied as being the inmates of the house, they were expected to be present and to have see the incident. As for Akbar, his presence too cannot be denied as there is nothing in his evidence to conclude against it. He also had no motive to falsely implicate the appellant.
14. It is difficult to accept, as contended by the learned counsel for the appellant, that both Malik and Mst. Pathani were not at the house when the deceased was killed as they had gone to the Dera of Ikramullah in Pind Mako. This contention rests on what was disclosed by Muhammad Din, P. W. 9, In his cross-examination. According to him he saw the deceased lying dead where after he was to the Dora of Ikramullah and from there he brought Malik. Mst. Pathani and Akbar. This witness was produced at the trial to establish the identity of the dead body but in crops-examination he made obliging admissions for the first time to show that it was an un-witnessed crime. In all probability the version is an afterthought and is not worthy of any credence when he had gone out of -his way to favour the appellant by intentionally deposing to a version which is false.
15. There are, however, two unsatisfactory features in the case. The first is the delay in lodging the F. I.
16. R. The incident was stated to have occurred at 3 or 4 p.m. According to Malik he left promptly for lodging the report but having learnt on the way to Police Station, Miani that the investigating officer was at Railway Station. Makkuwal, he left for that place and contacted him at 10 p.m. Who recorded hit statement at about 10-30 p.m. In going from his house to the Railway Station he only traversed a distance of two miles yet there is a delay of six hours for which no satisfactory explanation has been given by him. Again even if he had to go to the police station which is four miles from his house. It would not have taken more than two hours to lodge the report. Obviously it could not be that be would have left for lodging the report immediately but must have waited for some reason.
17. The learned counsel had merely surmised from the delay that the incident must have happened not at the stated time but sometime later for which submission no foundation is laid and to all intents and purposes it rests on a conjectural plane. To me it appears that the intervening time must have been spent by the relatives of Akbar to persuade him not to involve him as is apparent from his conduct in agreeing to appoint a Maini who was entrusted with the duty to find out as to whether Akbar was involved in the crime be that as it may nothing conclusive emergeste from the delay either to doubt the time of the incident or the presence of the witnesses or the culpability of the appellant. This being so delay per se in lodging the F. I. R. Will not be fatal in the face of direct evidence implicating the appellant.
18. The second unsatisfactory feature is the time at which the dead body seas said to have been removed in a truck by the corpse bearer to the mortuary at Bahera which is 3 miles from the house of Malik. If that was so, then it could not have taker, more than an hour or so but the corpse bearer reached the mortuary at noon the following day. It appears that due to some con--fusion it has been mistakenly stated not only by the corpse bearer but also by Malik that the dead body was despatched at about mid-night, as there was no immediate necessity for removing the dead body at night. However, nothing turns on it. Having regard to the time at which it reached the mortuary the dead body mast have been allowed to remain at the house during night and removed the following day.
19. It was next contended that the committal Court depositions of Mst. Pathani and Akbar have hardly any evidential value as they are not reliable witnesses. We have no hesitation in rejecting this contention for in those statements they have fully implicated the appellant and Akbar, and no Question was even suggested to them to challenge their veracity or the details of the incident. As rightly held by the Courts below they had under some pressure or influence resiled from their earlier statements which stood duly corroborated not only by the testimony of Malik but also by the incised injury suffered by the deceased indicating thereby that two types of weapons were used.
20. Lastly the learned counsel contended that the evidence qua the appellant and Akbar was the same and in that event if Akbar was acquitted then the benefit of doubt should also be extended to the appellant. This contention is again misconceived for the trial Court while acquitting Akbar had not disbelieved the ocular testimony. It only acted on material which had no evidential value and could not provide a foundation for the acquittal of Akbar. There was ocular testimony against Akber which stood corroborated by the presence of an incised injury on the face of the deceased which proved his participation beyond doubt. However, the trial Court on an unterable conclusion drawn from the opinion of the investigating officer that the Miain had held him to be innocent brushed aside the ocular testimony and gave to him the benefit of doubt. Accordingly it was wholly unjustified acquittal.
21. Our attention was also drawn to the fact that Malik had not mentioned about the hatchet lying at the spot. Since there is no material to lay a foundation to its having bean planted, I have no hesitation in holding that Malik had inadvertently omitted to mention this detail. It seems that if he had attributed a part to him then he would not have deliberately emitted to mention the presence of the hatchet at the spot.
22. I find that the Courts below have correctly appraised the evidence and believed it to be sufficient and conclusive to establish the guilt of the appellant beyond reasonable doubt.
23. Accordingly I would dismiss the appeal.
24. ANWARUL HAQ C. J.-I agree.
25. NASIM HASSAN SHAH, J.-I agree.
26. QAISAR KHAN. J.-After going through the judgment proposed by my learned brother Muhammad Haleem, J. To be delivered in this case it is with respect that I have to state that I do not find myself in agreement with it. I, therefore, proceed to record my own judgment. The facts of the case need not be reiterated as these have already been given in detail by my learned brother in his proposed judgment. I straight away proceed with the discussion of the prosecution evidence.
27. The prosecution evidence in this case consists of the following pieces:-
(1) Ocular evidence of Malak P. W. 6, Mst. Pathani P. W. 7 and Akbar P. W. 8.
(2) Motive for the offence.
(3) Non-existence of motive for a false charge.
(4) Medical evidence.
28. Before discussing the aforesaid pieces of evidence I would like to mention that there are some very disturbing features of this case which create genuine doubts about the credibility of the prosecution evidence. It is not for the Courts to find out flimsy explanations for the genuine doubts crested in the prosecution evidence, but it is for the prosecution to get these doubts explained in a reasonable and plausible way. The occurrence according to the prosecution took place at Deegar time. Since it was the 11th of February Deegur could therefore be taken at the latest at 4 p.m. The police station was only 4 miles from the spot and the report there should have been lodged at the latest by 6 p.m. According to the prosecution evidence, however, the report was lodged not in the police station but lodged at a place known as Pakwal distant only a mile from the spot. According to Malak P. W. Who reported the matter, he went towards the police station for a mile and when learnt that the S. H. O. Was in Pakwal went from there to Pakwal a mile away and reported the matter. This mean that Malak P. W. Covered a distance of only 2 miles to report the matter. The matter should therefore have been reported at 5 p.m. As according to Malak he left for the police station soon after the occurrence. The matter wag however reported at 10-30 p.m. As alleged by the prosecution though that too is very much doubtful taken into consideration the statement of Muhammad Feroa H. C. P. W. 4 who received the report and incorporated it in the F. I. R. This P. W.
29. Could not state and had not in fact noted as to who brought the report to the police station, and besides according to him the Roznamcha for the day was closed on the next day at 9 a m. Anyhow, even if it be taken as correct that the report was lodged at 10-30 p.m. There was a delay of 5 -- hours in lodging the report. This w an extreme delay and the prosecution was bound to give a reasonable explanation for it. There is however no explanation whatsoever fort coming from the prosecution side for this delay and it is not for Courts to conjecture that Malak P. W. May have been doing this or that.
30. It was for Malak to have stated that, and not for the Courts to conjecture in favour of the prosecution. This extreme delay leads us to the only irresistible conclusion that the occurrence took place at the dead of the night with--out having been noticed by any body and that the matter was reported in flue police station come time early in the morning but the report was not recorded and the prosecution case was fabricated after carrying out investigation on the spot. Another conclusion which could be drawn that the occurrence took place at Deegar time and the matter was lodged after the consultation and deliberations is out of question as in that case there could not have been a delay of 5/6 hours The aforesaid irresistible conclusion referred to by me finds corroboration from the prosecution evidence itself. It is in the statement of Sher Muhammad F. C. P.
31. W. 2, Malak P. W. 6 and Muhammad Nawaz S. H. O. P. W. 10 that the dead body was despatched to the mortuary at mid-night. Now this is the position evidence and why should the Court find an explanation for it that it was not so. Seer Muhammad F. C. Has stated that the dead body was taken in a truck while Malak and the S. H. O. Have stated that it was taken on cot by four persons. Now even if the statements of Malak and the S. H. O. Are token as correct the dead body should have reached the mortuary at 1 or 2 a.m. At the latest, the mortuary being 3 miles from the spot. The statement of the F. C. However shows that he reached Begh mortuary at 12 noon. Now it is beyond my comprehension at least as to how could a distance of three miles be covered in 10 or 12 hours.
32. The only irresistible conclusion therefore is that the dead body sasses despatched at 10/11 a.m. On the 12th. This finds support from the statement of the doctor who says that he performed the post- mortem examination on the dead body at 3 p.m. On the 12th. If the dead body had reached the mortuary during the night then the post-mortem would naturally have been performed in the morning. The fact that the den body was despatched to the mortuary at 10/11 a.m. Clearly shows that the coalface had taken place during the dead of the night and that the report was recorded after great deliberations and consultation and after the police had carried out investigation on the spot and Akbar had been procured as a witness. The above finds support even from the statement of Muhammad Din P. W. 9 who is a close relation of Malak P. W. This conclusion finds further support from the fact that the report was not lodged in the police station and that the S. H. O. Conveniently made himself available at another place. Furthermore if the occurrence had taken place at Deegar time and one of the accused had left his blood-stained axe on the spot Malak would certainly have seen the axe and would have taken it along with himself for production to the police at the time of the report or would have at least mentioned its presence on the spot in his report. The fact that no mention of the blood-stained axe was made in the report clearly shows that the occurrence did not take place at day time and that the recovery of the bloodstained axe was fabricated thereby suggesting. That the P. W. Bad not seen the occurrence.
33. It has been asserted that if the occurrence had taken place at the dead of the night then the deceased could not have been killed outside the room as it was winter and the deceased must have been sleeping inside the Kotha. Her having been killed outside the Kotha would not only suggest that she was killed at day time. It could also be that she had either come out during the night for urlnating or that there was knock at the door and she came out after opening it. Any how both these version are only conjectures and we have to look to the other evidence which I have discussed above a to when diet the occurrence take place.
34. Now coming to the medical evidence it does not prove anything against the accused. Malak P. W.
35. Did see the dead body on the spot before reporting the matter and he had naturally seen the gunshot wound and the incised wound. He had therefore to state in his report that the deceased had been done to death by a shotgun and an axe and the finding of the two types of wounds on the person of the deceased by the doctor could not be a corroboration of the statement of Malak P.
36. W.
37. Now coming to the motive, if there was no motive for a false charge then there was no motive for the offence and if there was a motive for the offence then that motive could equally be a motive for a false charge or a charge on suspicion. The prosecution case is that the accused was a man of loose character and that his wife had protested about it to her parents. That on that account the accused had threatened her with death and that her parents had therefore brought her to their house which had annoyed the accused. Now it is common knowledge that wife never leaves her husband on such like pretext in our society at the lower level. Besides the accused and the deceased were married 5 years before the occurrence and were living all along amicably in Gujranwala where the accused was posted. The deceased never left his house on any such pretext as there is nothing with respect to it in the prosecution evidence. The accused was posted to Miani only six months before the occurrence and it is not understood as to how did the accused suddenly become man of loose character so that the deceased could protest against it. It is in the statement of the doctor that the deceased had a child of eight months in her womb and under the circumstances the statement of the mother that she brought the deceased to her house for delivery as there was nobody in the house of the accused to look after the deceased seems to be plausible. It is common knowledge that in our society the middle class and especially in villages the mother either goes to the house of the daughter or brings her to her house in such like cases The presence of the deceased in the house of her parents could not therefore on the ground that she was not pleased with her husband on account of his character. It is more probable that she was brought by her mother for delivery as alleged by the mother. On the other hand it is in the statement of Malak P. W. That the brother-in-law of his wife Mst. Pathani, namely the father of Karam Ali P. W. And a brother-in-law of the said Karam Ali were murdered for which Taja the real uncle of the two accused was charged. No it can also be argued that the deceased might have been brought by her parents to their house on account of this enmity. If this be- taken as correct then if there was a motive for the offence then there was equally a motive for a false charge. The question of motive in the circumstances of this case cannot therefore be taken as a -corroboratory piece of evidence.
38. Now coming to the ocular testimony of the three P. Ws. Two of them, namely, Mst. Pathani and Akbar at the trial flatly denied having seen the occurrence. Reliance bad been placed by the prosecution on the statements of these P. Ws. Before the committing Magistrate which have been treated as evidence in the case under section 288 of the Code of Criminal Procedure. It is contended on behalf of the prosecution that the two P. We. Had soon the occurrence and had therefore deposed to fact correctly before the committing Magistrate and that later on they war Somehow won over and made to resile from their statements and the subsequently their statement before the committing Magistrate be relied that such like statements can be relied upon but then the Courts are not bound to rely on such statements and each case has to be judged according to its peculiar circumstances. In this case Mst. Pathani was the mother of the deceased and it is highly improbable that she could have been prevailed upon to resile from her statement if she had actually seen the occurrence especially when the accused was not in any way otherwise related to her. It is also highly improbable that she could have accepted the innocence of Akbar accused on the basis of local reconciliation it she had actually seen him giving axe blow to herb daughter. This cannot be the only probability that she was prevailed upon to resile from her statement. It is also probable that soon after the occurrence, in the heat of passions, she charged the accused on suspicion, but when later on it dawned upon her that the accused were innocent she resiled from her statement.
39. So far as Akbar P. W. Is concerned he clearly appears to be a chance witness. His village was distant 3 miles from the spot and he had no business to be on the spot at Deegar time especially when he had been involved in murder cases as deposed to by Malak P. W. If he wanted to have a round of the lands of his master as alleged to by Malak P. W. He would naturally have come earlier so as to reach back his village early. Furthermore if he could be prevailed upon by his master Akram landlord of Malak P. W. To resile from his statement then he could also be prevailed upon by his master in the first instance to give false evidence. It is more plausible in the circumstances of the case that he was made a false witness by his master in the first instance and when it became clear that the accused had not been seen by any body and were innocent he was made to resile.
40. In this connection the following passage from the statement of Malak P. W. Is worth perusal.
41. "It is correct that 10/11 years ago, Hamid, a brother of Ikram Ullah and I and Ikram Ullah aforementioned were challaned for assaulting and keeping in confinement Allah Yar son of Ullah of Pind Makkoo. It is also correct that some time after that occurrence that Allah Yar and others fired at Hamid and his brothers Akbar and Ikram Ullah and I was an eye-witness in that case. It is incorrect to suggest that since I always helped Ikram Ullah and his brothers in the criminal cases that they have provided the services of Akbar P. W. To become an eye-witness in my case and that in fact he was not present there. Pind Makkoo is at a distance of three miles from my Dera Akbar P.
42. W. Resides at Pind Makkoo with Hamid and Ikram Ullah."
43. In view of the above circumstances it is therefore not sale to place reliance on the statements of these two P. Ws. Before the committing Magistrate and these are therefore kept out of consideration.
44. We are therefore left with the solitary statement of Malak P. W. The murder vas apparently committed by two persons, for, it does not stand to reason that one person carried both a gun and a hatchet and after shooting the deceased then gave him a hatchet blow. Now if this Malak P. W who was the father of the deceased had seen the 2 accused murdering the deceased in the manner alleged in the F. I. R. It is highly improbable that he could have accepted the innocence of Akbar. How on earth could h accept the oath of his relation Ahmad about the innocence of Akbar when he himself had seen Akbar giving an axe blow to his daughter. The fact that he accepted Ahmad as Main, agreed giving him oath and then accepts his version clearly shows that he Malak P.W. Had not seen the occurrence. At any rate the solitary statement of Malak without any corroboration in the circumstances of the case especially when his wife did not support him and when it was not relied upon so far as Akbar accused was concerned cannot be considered sufficient for bringing home the charge to the accused beyond a reasonable doubt.
45. Giving the accused the benefit of doubt I would, therefore, accept his appeal, set aside his conviction and sentence and acquit him.
46. ORDFR OF THE COURT In accordance with the view of the majority, the appeal is dismissed.