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Death Reference No. 5 and Criminal Appeal No. 180 of 1968, decided on 14th June 1968.
Interested eye‑witness (relation of accused)-- Corroboration by independent sources-‑When necessary-- Evidence of interested witness containing inconsistencies and contradictions‑Conviction on such evidence without sufficient corroboration from independent sources‑Unsafe.
In every case it may not be necessary but in some cases where the evidence of interested witnesses suffer from suspicion or other defects, corroboration shall be necessary.
In cases where the evidence of interested witnesses cannot be safely accepted, some corroboration from reliable sources must come to sustain the conviction but in cases where the evidence of the witnesses suffer from no defects and is rather straightforward and tight the question of corroboration might not arise.
Abdul Latif v. The State 17 D L R 482 rel.
S. 157‑Previous statement corroborative evidence‑Words "at or about the time" in S. 157 --Very significant ‑ Statement made long after occurrence Cannot be used for corroboration‑Eye‑witnesses allegedly narrating story of incident to persons four hours after, and at a distance of seven miles from place of occurrence‑Such statement, held, does not fall within scope of S. 157 and cannot be used for purpose of corroboration.
Section 157 of the Evidence Act provides that in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. The word at or about the time" mentioned in the section are very significant. It follows, there-from that the statement made at or about the time when the occurrence took place may be proved and used to corroborate the testimony of a witness but statement made long after the occurrence cannot be so used as corrobora tion as it does not exclude the chance of false implication of the innocent persons.
Statement made about four hours after the occurrence at a distance of about seven miles from the place of occurrence does not fall within the scope of section 157 of the Evidence Act and cannot be used for the purpose of corroboration.
Niaz v. The State 12 D L R 289 rel.
Benefit of doubt‑Review of entire evidence on record favouring reasonable possibility of defence version-- Accused, held, entitled to benefit of doubt as of right.
In a criminal case, it is duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If after an examination of whole evidence the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances the accused was entitled to benefit of doubt, not as a matter of grace but as a matter of right, where the prosecution does not prove its case beyond reasonable doubt.
A. T. M. Masud, Deputy Legal Remembrance and S. S. Hoda for the State.
Julmat Ali Khan and Fariduddin Ahmed for the Condemned -Prisoner.
.‑The Reference No. 5 of 1968 has been made by Mr. A. Quashim, Sessions Judge, Mymensingh under section 374 of the Criminal Procedure Code for confirmation of the sentence of death passed on one Mokshed Ali Khan, Criminal Appeal No. 180 of 1968 has been preferred by the prisoner challenging his conviction and sentence under section 302 of the Pakistan Penal Code. Both the reference and the appeal have been heard together and are disposed of by this judgment.
2. The prosecution case, in short, is that the deceased Sundar Ali Khan and the accused Mokshed Ali Khan were full brothers, the accused being the elder brother. The accused used to live in the ancestral bari white the deceased used to live in the house of his father‑in‑law in the same village Kalia, Police Station Basail, Mymensingh. There was a long standing dispute between the brothers regarding the share in their ancestral homestead. The accused was a man of bad character and used to indulge in crimes. The deceased tried to reform him but the accused did not pay any heed and felt insulted. Thus the accused was nourishing a grudge against his brother for a long time.
3. The deceased Sundar Ali Khan had a paddy business. He used to go to the Hat to purchase paddy from the cultiva tors and sell it on the spot with a margin of profit. His son‑in‑law Rangu Khan alias Ramzan worked with him jointly. On the fateful day, that is, Tuesday the 27th Kartik, 1374 B. S. corres ponding to the 9th November 1967 the deceased Sundar Ali Khan and his son‑in‑law Rangu Khan went to the Karatia Hat for a paddy business from their house situated at a distance of seven miles off. Two other persons of the same village, namely, Rahim and Karim also went to the Hat for the same purpose. The deceased Sundar Ali Khan and his son‑in‑law Rangu sat in the Dhanhati (a fixed place in the Hat where only paddy is sold) facing east and the other two persons, namely, Rahim and Karim sat on the opposite side facing west. One Sanawar Khan came to the Hat to borrow money from the deceased and he too was present there. At about 4‑30 p.m. when the deceased and his son‑in‑law were busy with their paddy business, the accused Mokshed Ali came to the Dhanhati from the western side covering his body with a chaddar. He moved towards Sundar Ali Khan, brought out a dao which he had concealed under the chaddar anal inflicted two fatal injuries on the back side of Sundar Ali's neck without giving him a chance to utter a word. Sundar Ali Khan died on the spot and the accused Mokshed Ali Khan ran to the west, crossed the bamboo bridge across the river on the western site and disappeared from the scene. While leaving Dhanhati, he threw the dao and the Gamcha on the spot. The dao had no wooden handle and the accused held it with the help of the Gamcha. Rangu Khan, Sanawar Khan and others raised alarm and the commotion attracted a large number of' persons in the Hat. On hearing the hue and cries Dafadar Abdul Baset came to the spot and saw the dead body lying in a pool of blood. On enquiry Rangu and Sanawar disclosed the name of the accused, narrated the occurrence to the people assembled there and stated that deceased Sundar Ali was murdered by his own brother Mokshed Ali. After a short while Rangu and Sanawar left the Hat for their bari to give information to their other relations. Rahim and Karim also left for the village with the same idea. The dafadar put two Choukidars in charge of the dead body, waited there for a long time for return of Rairgu and Sanawar and thereafter went to the thana and lodged a First Information Report at 1‑15 p.m. with the police at Tangail. The local police investigated the case, seized the alamats and submitted charge- sheet against the accused and a competent Magistrate after a preliminary enquiry, committed him to the Court of Session. The accused was thus put on a trial before the Sessions Judge to meet the charge under section 302 of the Pakistan Penal Code.
4. The defence is a plea of innocence. His specific case is that the deceased Sundar Ali Khan was a bad character and had many enemies. He was murdered in the Hat in the dark ness of the night by some unknown enemy at a time when his son‑in‑law Rangu Khan and his other relations were not there. Rangu Khan and other relations went to the Hat subsequently and persuaded the Dafadar Abdul Baset to lodge a false First Information Report. The accused also asserted that the people of the house of the deceased Sundar Ali's father‑in‑law once implicated him in a dacoity case and also a case under section 110, Criminal Procedure Code and it is probably they who had murdered his brother Sundar Ali Khan.
5. Fourteen witnesses for the prosecution and none for the defence were examined in the case. The trial was held with the aid of three Assessors, all of whom unanimously found the: accused prisoner guilty. The learned Sessions Judge considering the evidence on record and accepting the opinion or the Assessors convicted and sentenced him to death under section 302 of the Pakistan Penal Code.
6. The learned Advocate appearing for the condemned- prisoner has taken us through the evidence as well as the relevant records including the judgment pronounced by the Sessions Judge.
He had contended that the prosecution has failed to prove the charge against the accused by satisfactory evidence; that the allege d eye‑witnesses examined in the case are closely related and interested and their presence at the scene of alleged commission of the murder is highly doubtful ; that independent and material witnesses have been withheld ; that the prosecution case suffers from improbabilities of high degree and that the occurrence did not take place in the manner and at the time as alleged by the prosecution.
7. The death of deceased Sundar Ali Khan on the fateful date at the Karatia Hat due to the fatal injuries on the back side of his neck is not disputed. P. W. 4. Dr. Habibul Haq who held the post‑mortem examination over the dead body of Sundar Ali found two incised injuries on the back side of his neck opined that the death was due to shock and haemorrhage as a result of the injuries described therein which were ante‑mortem and homicidal in nature. The evidence and materials on record brave proved beyond doubt that the deceased Sundar Ali was murdered at the Karatia Hat by some one causing fatal injuries on his neck. The question now is whether the condemned‑prisoner Mokshed Ali Khan is responsible for the murder of Sundar Ali Khan and whether he struck the two fatal dao blows on the back side of his neck causing his immediate death.
8. Out of the fourteen witnesses examined in the case P. Ws. 1, 2, 3 and 6 are the alleged eye‑witnesses and the rest sire corroborative witnesses of whom P. W. 4 is the Doctor, P. W. 13 is a Constable and P. W. 14 is an Investigation Officer.
9. P. W. 1 Rangu Khan has described the prosecution story in detail. He has stated that lie and the deceased Sundar Ali Khan had joint paddy business and went to Karatia Hat together on the fateful day. At about 4‑30 p.m. (Asar time) when they were busy with their paddy business at Dhanhati, the accused Mokshed Ali came from the western side covering his body with a Chaddar, reached close to Sundar Ali, took out a dao and struck two fatal blows on the back side of Sundar Ali's neck causing his immediate death. He has also stated that soon after the infliction of the injuries the accused Mokshed Ali Khan ran back to the west and disappeared from the scene leaving the dao and a Gamcha near the dead body. He persued him to some extent but could not catch him as he fell down.
10. This witness is the son‑in‑law (daughter's husband) of deceased Sundar Ali Khan. His conduct during the occurrence and afterwards has been subjected to bitter criticism by the defence. It appears from his evidence that he did not make serious attempt to catch the accused. According to him, three other close rela tions of the deceased, namely, P. Ws. 2, 3 and 6 were also present in the Hat. After such diabolical murder when the culprit was going back being obstructed by the market people it was natural that the relations and other marketers would try to catch him by all possible means. The four relations (all able‑bodied young-men between 22 to 35 of age) do not seem to have made any such attempt in right earnestness. Tangail Police Station is situated at a distance of four miles from the place of occurrence. It was the first duty of P.W. 1, the son-in-law and the business partner of the deceased, in the circumstances of the case, to bring the matter to the notice of the police but he did not do so. Instead soon after the occurrence when the Dafadar came to the spot, he left the place, leaving the dead body as it is, for his village at Kalia for carrying information to other relations. He did not return to the scene of occurrence during the whole night though his father -in‑law was lying dead in the Karatia market uncared for; this conduct of P. W. 1 as a son‑in‑law seems unusual and highly suspicious and it casts a reasonable doubt upon his presence in the market during commission of the crime. The witness has stated in his exemption‑in‑chief that P. W. 2 Sundar Ali went to the Hat for paddy business. But in his cross‑examination he states that Sanawar Ali went to the Hat for borrowing some money from deceased Sundar Ali. This discrepancy in his evidence makes his presence as well as presence of P. W. 2 doubt ful at the place of occurrence at the relevant time. He claims that he had a joint business with the deceased and he went to the market together and sat together in a particular place in Dhanhati close to deceased Sundar Ali. P. W. 2 on the contrary states that P. W. 1 Rangu alias Ramzan was standing to the north and one unknown man stood between him and deceased Sundar Ali Khan and the said unknown man in the middle was also selling paddy. The witness again states that at the relevant time the deceased was sitting facing cast and he was standing in front of him facing west. But P. W. 2 states that Ramzan was sitting to the north intervened by another man in the middle and selling paddy there. This inconsistency between the evidence of P. Ws. 1 and 2 raises a doubt whether P. W. 1 had actually a joint business with the deceased and whether he was at all present in the market during the commission of the crime. He has stated in his evidence that the Investigating Officer seized a Gamcha lying near the dead body but P. W. 14 states that he seized two blood‑stained Gamchas from the spot. He told in Court that he reached the place of occurrence next morning at dawn while the Sub‑Inspector was visiting at the place of occurrence. But the Sub‑Inspector, P. W. 14 states that he went to the place of occurrence next morning and held inquest at about 8 a.m. The witness has named four persons as eye‑witnesses to the occurrence but P.W. 5 the informant has mentioned only two names as eye‑witnesses of the occurrence. He has introduced two more names, that is, names of Abdur Rahim Khan and Abdul Karim Khan (P. W. 3 and 6) who are none else than the brothers‑in‑law of the deceased. He has also made a statement to the effect that the accused, Mukshed Ali was a thief. This statement which brings reflection upon the character of the accused has not been corroborated by any other witness. Having regard to the inconsistencies and contradictions in his evidence, his unusual conduct and interested ness in the case, we think, it is unsafe to base conviction on the evidence of such interested person without sufficient corroboration from independent sources.
11. Let us now consider the evidence of P. W. 2 Sanawar Khan the second eye‑witness in the case. He has stated in his deposition that he went to the Karatia Hat on the date of occur rence for borrowing money from the deceased Sundar Ali and he was present when at about 4 p.m. the accused Mukshed Ali came from the western side with a black chaddar wrapped round his body. He saw the accused to bring out the fro and inflict two dao injuries on the neck of Sundar Ali. Sundar Ali died on the spot. The accused ran away to the west after throwing the dao and a Gamcha.
12. This witness is the grandson (daughter's son) of the deceased. He comes from the same village Kalia from where the deceased Ali came. The distance between the place of occurrence and the Monza Kalia is about seven miles. It is not understood why the grandson would walk for fourteen miles (seven miles this way and seven miles back) for borrowing money from the grandfather when he could easily take the money by approaching the Nana (grandfather) at home in the next house of the same village.
13. P. W. 1 has stated in his examination‑in‑chief that Sanawar Ali, P. W. 2 went to the Hat for doing the business of paddy but the witness states that he came to the market for borrowing money from the deceased Sundar Ali. This inconsis tency makes the presence of P. W. 2 at the Karatia market on the fateful date doubtful. He has been contradicted by the Investigating Officer P. W. 14 on material points. The witness in reply to a question in cross‑examination admitted that lie stated to the Investigating Officer that the accused also threw a Gamcha along the dao but P. W. 14 stated that the witness did not state that the accused threw a Gamcha along with the dao. P. W. 2 stated that he told the Deroga that he went to the Hat to borrow money and that in fact he borrowed a sum of Rs. 20 but the Investigating Officer states that P. W. Sanawar did not state to hire that he went to the flat to borrow money from his Nana and he in fact borrowed a sum of Rs. 20 from him. On this point he has also contradicted his statement before the committing Court put in under section 288 of the Code of Criminal Proce dure. He has stated before the Sessions Judge that P. Ws. Rahim and Karim were also present during the occurrence but lie dirt not state so before the committing Court. The witness has also contradicted P. W. 1 regarding the position of P. W. Rangu Khan in the market during the commission of the crime. P. W. 1 has stated that he was close to the deceased and that the deceased was sitting facing east and he was standing in front of him facing west. But P. W. 2 gives a different story and states that P. W. 1 Rangu was standing on the north and one unknown man stood between him and the deceased Sundar Ali and that unknown man in the middle was also selling paddy. All these discrepancies in his evidence make it doubtful whether P. W. 2 was at all present in the market at the relevant time and whether he saw anything of the occurrence. The witness is none else than the grandson of the deceased and the probability of false impli cation in the circumstances of the case, cannot be ignored. It is, therefore, risky to rely on such evidence without corroboration from independent sources.
14. In this connection the learned Deputy Legal Remembrancer appearing for the State has argued that the evidence of P. Ws. 1 and 2 (even if they be interested persons) having been consistent and otherwise satisfactory, the question of corrobora tion from independent sources does not arise here and their evidence can alone be the basis of conviction in this case. In support of his contention he has referred to the case of Abdul Latif v. The State (17 D L R 482). In that case, following a number of deci sions of the Supreme Court, a Division Bench of this Court leas held as follows :‑
"the facts and circumstances of a particular case will be the determining factor as to whether the evidence of interested witnesses can be the safe basis for conviction. There can be no inflexible rule that in every case the interested witnesses must receive corroboration from reliable independent source in order to sustain conviction."
15. The principle laid down therein does not show that corroboration will not at all be necessary in accepting the evidence of interested witnesses. It only postulates that the facts and circumstances of a particular case will be the determining factor whether the evidence of interested witnesses can be the safe basis for conviction. In every case it may not be necessary but in some cases where the evidence of interested witnesses suffer from suspicion or other defects, corroboration shall be necessary. In the instant case, as discussed above, the very presence of P. Ws. 1 and 2 at the place of occurrence having been found to be shaky and their evidence being contradictory and inconsistent on material points, we hold that such evidence of interested witnesses cannot be accepted without some corroboration from reliable independent sources. In cases where the evidence of interested witnesses cannot be safely accepted, some corroboration from reliable sources must come to sustain the conviction but in cases where the evidence of the witnesses suffer from no defects and are rather straightforward and tight the question of corroboration might not arise.
16. P. W. 3 Abdur Rahim Khan and P. W. 6 Abdul Karim Khan are the two other alleged eye‑witnesses who claim to have seen the occurrence. These two witnesses are the brothers‑in‑law (cousins of the wife) of the deceased. They have not been even named in the First Information Report. There is no evidence ors record, save and except the evidence of the two interested witnesses Nos. 1 and 2, to show that P. Ws. 3 and 6 were actually present at the Karatia Hat during the occurrence.
17. P. W. 3 has stated in his deposition that lie reported the occurrence to the persons who gathered there and flamed the ac cused to them. According to him Kaki Mia, Salamat Khan, Afser Khan, and Shamsu Khan gathered there and he named the accused to them. Afser Khan and Shamsu Khan have not been examined in the case, Kalu Mia (P. W. 8) and Sa1amat Khan (P. W. 9) do not corroborate P. W. 3 on the point. The witness did not say anything in his deposition about the Gamcha affair. P. W. 6 has admitted in his evidence before the Sessions Court that P. W. 5 Dafadar Abdul Baset came to the spot during his presence there and that he left for the bari while his brother P. W. 3 Abdur Rahim was still in the bazar. The Dafadar P. W. 5 did not say that he saw these two witnesses in the market. The witnesses being the close relations of the deceased it was natural that they would report something to the Dafadar, P. W. 5. P. W. 6 stated that the dao had no wooden handle but the Investigating Officer P. W. 14 said that he seized a blood‑stained dao with handle (achari). The witness stated that he saw one Gamcha but P. W. 14 seized two blood‑stained Gamchas from the spot. They left for the bari soon after the occurrence and did not return to the dead body at all. Having regard to the facts indicated above, the presence of these two witnesses, namely, P. W. 3 Abdur Rahim Khan and P. W. 6 Abdul Karim on the spot at the relevant time appears to be highly suspicious. These two relations seem to have been brought in the picture subsequent ly to fill up the gaps in the prosecution case. We are unable to rely on their evidence.
18. P. W. 5 Abdul Baset, is the informant in the case. He is not an eye‑witness of the occurrence. He came to the place of occurrence at once on hearing the hue and cries and saw the dead body lying in a pool of blood, on enquiry P. Ws. Rangu and Sanawar narrated the occurrence briefly and stated the deceased Sundar Ali Khan was murdered by his own brother Mukshed Ali Khan. After a short while Rangu and Sanawar left the Hat for their bari for giving information to their relations. He waited there for sometime for the return of Rangu and Sanawar and thereafter lodged the First Information Report Exh. 1 with the police.
19. The occurrence, according to him, took place at about 4‑30 p.m. on the fateful date and he lodged the Information Report at 8‑15 p.m. at Tangail Police Station at a distance of about four miles from the place of occurrence. He went to the thana by bus and lodged the First Information Report immedi ately after his arrival there. To cover a distance of about four miles by bus may at best take a half of an hour or an hour. In this calculation he must have started for the thana after 7 p.m. and by no imagination before 7 p.m. The witness is the Dafadar of the local Union Council. What did he actually do during this long period from 4‑30 to 7 p.m. at the place of occurrence Why did he not inform the office of the Chairman of the local Union Council which is just one‑fourth mile away He being a responsible man could inform the police at once. But instead he waited there for more than three hours. This conduct of the witness is very much suspicious.
20. This witness though came to the spot at the earliest opportunity made no attempt to arrest the culprit. He had two other Chowkidars with him. There were also hundreds of people in the market. It was natural for him to persue the accused with the help of other Chowkidars and the people attending the market. This conduct of the witness also speaks against him.
21. After going to the place of occurrence he found P. Ws.1 and 2 weeping there and on enquiry, learnt from them that accused Mukhsed Ali murdered the deceased Sundar Ali. This being the position, it is not understood, why he allowed these witnesses to go to their bari, instead of directing them to the thana to bring the matter to the notice of the police. This is very unusual.
22. He is a local man and his house is just on the western side of the Karatia market. He is the Dafadar of the Union Council for the last 14/15 years and he comes to the market along with the Chowkidars in every market day to maintain the peace. He is supposed to know the shopkeepers and shop keepers are also expected to know him. He has stated in his deposition that the bazar was in full swing and many people attended the market. About 100 men gathered near and around the dead body but all were unknown to him. During his stay near the dead body many people came but he did not find any known face and no known man came near the dead body. This seems to be an absurdity which no reasonable man will believe. All these improbabilities and absurdities indicate that the Dafadar witness is not speaking the truth. The defence suggestion to him is that some unknown enemies killed the deceased and that the Dafadar with the connivances of Rangu and Sanawar lodged a false information to the police. In view of the inherent defects in his evidence the possibility of false implication cannot be altogether excluded in the case. This witness, therefore, cannot be relied on for corroboration purposes.
23. P. W. 7 Anwara Khatun, P. W. 8 Kalu Mia and P. W. 9 are another group of witnesses who have been examined in the case for the purpose of corroboration. P. W. 7 is the wife of victim. P. W. 9 is the brother‑in‑law of the deceased. P. W. 8 is a close neighbour. These three witnesses have contradicted each other as to the time of arrival P. Ws. 1 and 2 back to the bari. P. W. 8 has also contradicted the Investigation Officer P. W. 14 as to the time of his arrival at the house of deceased Sundar Ali. In view of the relationship and the inconsistencies in their evidence they cannot be deemed as reliable witnesses to corro borate the evidence of P. Ws. 1 and 2.
24. In this connection the learned Advocate appearing for the condemned‑prisoner has submitted that even if it be true that P. Ws. 1 and 2 reported the occurrence to the above witnesses at their residence at Kalia at a distance of seven miles away, in view of the provision of section 157 of the Evidence Act, their evi dence cannot be accepted as corroborative evidence. Section 157 of the Evidence Act provides that in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. The words "At or about the time" mentioned in the section are very significant. It follows, therefrom that the statement made at or about the time when the occurrence took place may; be proved and used to corroborate the testimony of a witness but statement made long after the occurrence cannot be so used as corroboration as it does not exclude the chance of false implication of the innocent persons. In the instant case, according to the prosecution, the occurrence took place at Karatia Hat at about 4‑30 p. m. P. Ws. 1 and 2 walked about seven miles and reached their bari several hours after the occurrence and the evidence shows that they reached home at about 8 p.m. and thereafter made the statements there at the village to this group of witnesses. In our opinion the four statements made by P. Ws. 7, 8 and 9 about four hours after the occurrence at a dis tance of about seven miles from the place of occurrence does not fall within the scope of section 157 of the Evidence Act and cannot be used for the purpose of corroboration. In this respect the case Niaz v. The State (P L D 1960 S C 387) may profitably be referred to.
25. The evidence of P. W. 10 Bazruk Ali has been disbe lieved by the learned Sessions Judge and in our opinion it has been rightly disbelieved and hence we do not like to discuss his evidence here any further.
26. Next comes for consideration the evidence of P. Ws. 11 and 12 (Abdur Rahim and Abul Kashem) who practically proved nothing against the accused. They have stated that they came to the spot and saw the dead body lying there. P. W. 12 came after sunset but P. W. 11 did not give the time when he actually reached. Both the witnesses have admitted in their depositions that they could not learn the details or the name of the murderer or anything as to how the murder took place. These statements of the witnesses indirectly give support to the defence cases. Their evidence show that the name of the murderer was rot mentioned by the alleged eye‑witnesses to any body who assembled there immediately after the occurrence.
27. The Investigation Officer, P. W. 14 seized two blood stained Gamchas from near the dead body. P. Ws. 1, 2 and 6 have stated that the accused left only one Gamcha there. The informant P. W. 5 did not mention any Gamchas in the First Information Report. No explanation has been furnished in respect of the second Gamcha. This inconsistency in evidence brings cloud upon the prosecution case and indicates that the prosecution did not come with clean hand.
28. The evidence on record discloses that the blood‑stained ciao seized by the Investigation Officer was a new one. But there is no evidence to show that the dao was purchased by the accused from the Hat or that it belonged to the accused.
29. Thus the evidence on the whole is very shaky and this being the nature of evidence in the case, we are unable to hold that the charge against the accused has been proved beyond any reasonable doubt by satisfactory evidence.
30. The occurrence took place in broad day‑light at about 4‑40 p. m. in a Hat. Evidence on record shows that the Hat is a very big one and a large number of people attended the Hat on the fateful date. It is also in evidence that on hearing the hue and cry more than 100 people assembled at the place of occurrence. But unfortunately none of them has been examined in the case. None of the marketers and no independent witness, save and except the four close relations, have been produced before the Court. The corroborative witnesses examined .in the case are either relations or picked up people proving nothing. Non‑examination of the independent and material witnesses speak volume and presumption under section 114 of the Evidence Act may rightly be drawn against the prosecution. The explanation given by the prosecution in this respect is very unsatisfactory. Had the inde pendent and material witnesses been produced the position would have been different and that is why the prosecution deliberately withheld the independent witnesses and produced only some relations in the Court.
31. The case also suffers from certain improbabilities of high degree which make it false and concocted. The accused and the deceased are two brothers. They live at a place which is situated seven miles away from the place of occurrence. Even if it be accepted that some ill‑feelings between the two brothers exist it seems highly impropable that the elder brother would carry a dao from his house seven miles off and go to the market to kill his younger brother and select a market place for murder of the brother in a broad day‑light.
32. The accused after infliction of the blows left the dao and Gamcha near the dead body and then ran away empty handed towards the west through the market. The market is packed up by the people. P. W. 1 has admitted that while he was running to catch the accused he fell down being obstructed by other people attending the market. If that be the position, how can the accused go and run away from the place after such a diaboli cal murder unnoticed by others. Why P. W. 1 the son‑in‑law, P. W. 2 a grandson, P. Ws. 3 and 6, the brothers‑in‑law and the other people in the market would allow him to go scot free This appears to be most unnatural and improbable.
33. Dafadar, P. W. 5 came to the spot soon after the murder. P. Ws. 1 and 2 narrated the facts to him. No step was taken to apprehend the culprit or to bring the matter to the notice of the police at once. On the contrary all the eye‑witnesses quite unusually left the place of occurrence laving the dead body there and they did not come back to the dead body through the whole night. This is another improbable circumstance in the case. Benefit of these improbabilities and inconsistencies in evidence shall go to the defence and not in favour of the prosecu tion as found by the learned Sessions Judge in several places of his judgment.
34. There is another aspect of the matter. The defence is that the occurrence did not take place at the time and in the manner as alleged by the prosecution and that the man was murdered by some unknown man in the darkness of the night. The First Information Report in this case was lodged at 8‑15 p.m. The informant went to the thana by bus. To cover the distance of four miles from Karatia to Tangail by bus may take at best half an hour. If the distance between the place of occurrence and the thana can be covered by half an hour to one hour, the possibility of the occurrence having taken place after the sunset cannot be altogether excluded in the case. The sunset on 9‑11‑67 (date of occurrence) at 5‑22 p.m. If the occurrence really took place at 4‑30 p.m. then why the First Information Report should be lodged so late at 8 15 p.m. This delay in lodging the First Information Report indicates that the occurrence did not take place at the time and in the manner as alleged by the prosecution Evidence of P. Ws. 5, 11 and 12 on the point as discussed earlier cannot improve the position.
35. In a criminal case, it is duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If after an examination of the whole evidence the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In then circumstances the accused is entitled to benefit of doubt, not as a matter of grace but as a matter of right, because the prosecution has not proved its case beyond reasonable doubt. This view has been pronounced by the Federal Court (now Supreme Court) of Pakistan in the case of Safdar Ali v. Crown (P L D 1953 F C 93) and we respectfully agree with the principle laid down there. Judging the instant case with the yardstick of above principle and considering the fact and circumstances of the case we think that the defence version as put forward above has the reasonable possibility of being true and the accused, in the circumstances, is entitled to get the benefit of the same.
36. It appears that the real picture of the occurrence has not been brought before the Court and the investigation has not been directed in proper channel in the case.
37. For all these reasons we are unable to maintain the conviction and sentence in the case.
38. In the result the Reference is rejected and the Appeal is allowed. The order of conviction and sentence is set aside and the accused is acquitted of the charge levelled against him. It is directed that the accused be set at liberty forthwith if not wanted in connection with any other matter.
.‑I agree.
Reference rejected.
Appeal allowed.
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