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Criminal Appeal No. 17 of 1953, decided on 16th December 1953,

(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 21st November 1952, in Criminal Appeal No. 494 of 1952).

S. 302‑Deceased last seen alive in company of accused‑Accused's failure to furnish explanation Conviction under section upheld‑Evidence Act (I of 1872), S. 8.

M. Anwar, Advocate Federal Court for Appellant.

A. R. Changez, Advocate‑General Punjab (C. M. Sharif, Advocate Federal Court with

him) assisted by Ijaz Ali, Attorney for Respondent.

Date of hearing : 16th December 1953.

This appeal by one Allah Ditta which has been brought with our special leave from a conviction and sentence of death for the murder of one Mst. Sairan, turns on the question whether there is any evidence to the effect that he was seen entering a jungle (bela) with the woman shortly before the time at which she presumably met her death. The case was one of circumstantial evidence. It is proved that a few days before the material date Mst. Sairan had sold a buffalo on credit to Allah Ditta, and that, at the time when she met her death, she was attempting to get the buffalo back, under pressure by her parents, who objected to her having allowed credit. The animal was recovered by her father independently on the morning of the material day, before the presumed time of death, and a motive for the crime would thus appear to be available.

The body was found after some delay in the aforesaid jungle, and as Mst. Sairan had been missing ever since the time she was allegedly seen entering the jungle in the appellant's company, it is a reasonable inference, assuming the identity of the two persons to be established, that the survivor was responsible for the death of the other. Some doubt regarding the identity of the woman resulted from the following observation of the learned Judges in :he High Court :‑

"About Mst. Sairan having been last seen alive with the appellant, we have the evidence of Fajja (P. W. 13), Gaman (P. W. 14), Sher Muhammad (P. W. 15) and Hussain Baksh (P. W. 16) . . . . . . . . . . . They saw them both go into a jungle and about half an hour later, the appellant was seen by P. W. 13, P. W. 14 and P. W. 16 returning alone. The trial judge did not accept in its entirety the statement of Fajja (p. W. 13) because the witness had not mentioned his having seen the deceased and the appellant together to the brother of the deceased when he was making enquiries about her. In our opinion, the statement of Fajja is entirely reliable . . . . . we can discover no reason why he should have given false evidence against the appellant . . . . . . . . But even if the statement of Fajja (P. W. 13) be kept out of consideration, there is nothing at all to make one suspect the depositions of Gaman (P. W. 14), Sher Muhammad (P. W. 15) and Hussain Bakhsh (P. W. 16)."

In actual fact, the elimination of Fajja's evidence would detract very greatly from the testimony as to the identity of the woman, for neither Gaman nor Hussain Bakhsh bad ever seen her before, and as for Sher Muhammad who declared that he made her out and gave her name and parentage to the other two, he had only seen her once before, on the previous day, when she happened to visit his village, and nothing appears from his evidence to indicate that it was anything more than a casual encounter. Consequently, it might have been difficult to accept Sher Muhammad's identification at the material time, which was accomplished from an estimated distance of 100 karams (equal to 550 feet). But on examining the evidence of Fajja, we find that it indeed merits the description "entirely reliable", and there was every reason why it should not be "kept out of consideration". His statement is materially different from those of the other three witnesses, and the contrary impression conveyed by the judgment of the High Court is misleading. He was not with the other witnesses when he saw Allah Ditta and. Mst. Sairan together, but had left their company at the well Sunderwala a short time sufficient to cover 100 karams on foot before, when on the way to Mst. Sairan's village, he met her going towards the well, and told her, in answer to her question, that Allah Ditta was following him. Fajja was employed by Allah Ditta as a milk collector, and Allah Ditta's business was to supply milk in Lahore city, hence the special knowledge possessed by Fajja, who was himself out on a milk‑collecting round. Mst. Sairan went on towards the well, and Fajja proceeding on his way, looked back after covering another 100 karams, probably in order to see if Allah Ditta was following him. It was then that he saw Allah Ditta and Mst. Sairan standing together, nor far from the well, and quite evidently, his identification of the two persons is worthy of implicit acceptance. The time coinciding with that at which Sher Muhammad and his companions saw the couple entering the jungle, even if these three persons could not be absolutely sure of the identity of the woman, since they were certain of the identity of Allah Ditta, their testimony read with that of Fajja places the matter beyond doubt. His reticence towards the deceased's brother may well have been due to the suggestion of her adultery, which receives support from the fact that he; trousers were found at a distance from the body.

Other circumstances of implication have also been accepted by the High Court, but with these it is unnecessary for us to deal. The two matters we have dealt with, coupled with Allah Ditta's failure to furnish an explanation for the disappearance of Mst. Sairan who was last seen alive in his company . . . . . . he denied the allegation . . . . are in our view amply sufficient to sustain the findings of the Courts below, and we accordingly dismiss tile appeal.

Appeal dismissed.

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