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Criminal Appeal No. 191 of 1957, decided on 27th Sep tember 1957, from the order of D. Fazal‑ud‑Din, Sessions Judge, Mianwali, dated the 5th July 1957.
S. 27‑Simple pointing out a bush at some distance from place of murder, from which shoes and turban alleged to belong to deceased were recovered‑Not of much consequence.
Where the Assistant Sub‑Inspector of Police had not disclosed the exact circumstances under which the accused was brought to the scene of occurrence ; his statement did not give any indication as to what the accused meant when he simply pointed his finger to a bush from which shoes and turban alleged to belong to the deceased, but which were not sufficiently identified, were discovered, not buried or concealed but "simply lying in the bush", and the witness did not give the date of recovery:
Held, that the recovery should n5' be given undue prominence.
‑Must be definite and clear and exclude possibility of innocence of accused before conviction can be based on it.
‑Suspicion, however strong is no substitute for proof in a criminal case.
Shah Zaman Khan (engaged at State expense) for Appel lant.
Muhammad Ali, Additional Advocate‑General for Respondent.
Date of hearing : 27th September 1957.
‑This is an appeal from jail preferred by Allah Ditta of D. I. Khan City against the order of the Sessions Judge Mianwali, whereby lie has been con victed of an offence of murder under section 302, P. P. C. and sentenced to death. His sentence has been also laid before us on the reference side for confirmation.
The murdered man in this case is Fateh Khan, who lived in D. I. Khan City, and is related to the appellant, for his wife (now widow) Mst. Allah Wasai is his aunt's daughter. It is alleged that the deceased and the appellant left D. I. Khan together for purchasing milch goats in Mianwali District, that they spent one night at Chah Muhammadwala with Mst. Sannai daughter of the deceased and her husband Suba Khan, that the next night they stayed in the house of one Murid Hussain at Chah Anwarwala, and that the following morniNg both of them left in the direction of Baranga lorry‑stand. All these places are situated in Tehsil Bhakhar, District Mianwali. Nothing was heard of the deceased until after about a week on the 24th October 1956, his dead body was found concealed in a bush. A danda was also lying there. The villagers on information collected near the spot and later the same day informed Sardar Khan A. S. I. of Police Station Darya Khan, who happened to come to a nearby village on patrol duty. He recorded the statement of one Kamal Lambardar by way of F. I. R. By that time the dead body was not identified. Later the same evening Suba Khan, son‑in‑law of the deceased, and others recognised the body.
The appellant was arrested in D. I. Khan on the 26th October 1956. According to the prosecution version, after some days he led the Investigating Officer to a bush from where the turban and the shoes of the deceased were recovered. This place is said to be about 56 karams away from the bush in which the dead body was lying.
At the trial, the appellant completely repudiated the prosecution allegations and expressed ignorance of the murder.
According to .the medical evidence, the death of the deceased was due to a contused wound 2" x l/2" on the top of his head fracturing the skull, and the frontal and parietal bones, caused by a blunt weapon, and the interval between the death and the post‑mortem examination, which was conducted on the 25th October 1956, was about one week. That would show that the man was killed round about the 18th October 1956.
There are three main circumstances appearing in the prosecution evidence, which according to the Additional Advocate‑General are sufficient to justify the conviction, namely, (1) the deceased was last seen in the company of the appellant, (2) the shoes and the turban of the deceased were recovered from a bush in the vicinity of the place where the dead body was found at the instance of the appellant, and (3) the appellant gave false information to the widow of the deceased, when on his return to D. I. Khan he told her, that he had left the deceased near Baranga lorry‑adda, and that he would be coming home in due course. We have given our careful and anxious thought to the matter, and have no hesitation in saying that the evidence relied upon by the prosecution is not sufficient to substantiate the charge of murder against the appellant.
If it had been proved by reliable and disinterested evidence clearly and beyond any reasonable doubt, that the deceased and the appellant were last seen together shortly before the murder, that the appellant deliberately gave false information to the relatives of the deceased regarding his disappearance, and that the turban and the shoes in question belonged to the deceased and were actually recovered at the instance of the appellant, we would have perhaps felt no obstacle in reaching the conclusion, that this evidence con sidered against the background of the relationship of the parties was sufficient to bring the charge home to the appellant. But when we subject this evidence to close scrutiny, we feel some doubts in our mind and are not fully convinced of the existence of all the circumstances.
For what the appellant told the relatives of the deceased about his disappearance after his return to D. I Khan, we have to depend on the solitary statement of Mst. Allah Wasai. the widow of the deceased. No doubt, she is related to the appellant, but at the same time she is not favourably disposed towards him, for on her own admission the appellant for sometime past had‑ been inducing her to leave the deceased and marry him. She states that the offer was flatly rejected by her. It is further alleged by her that the appellant had been demanding the hand of her daughter in marriage, but she and her husband did not agree. If this story is correct, then it requires no great efforts at imagination, that the woman must have been considerably annoyed at the mis behaviour of the appellant and also must have been prejudiced against him, believing that her husband was murdered by him. Therefore, in view of the strained relations between them, it would not be quite safe to accept the testimony of Mst. Allah Wasai as gospel truth.
As to the other circumstance, namely, the recovery of the articles of the deceased at the instance of the appellant, we may well refer to the evidence of the principal witness Sardar Khan A. S. I., who actually made the recovery. On this particular point, he made the following statement :‑
"When he (appellant) was handed over to me, he pointed out a bush of a jai tree about 56 karams away from the site of the recovery of the dead body from where the shoes Exh. P. 2 and the turban Exh. P. 3 were recovered per Memo. Exh. P. D."
The statement is not as clear as one would have wished it to be. The A. S. I. does not disclose the exact cir cumstances under which the appellant was brought to the A scene of occurrence, nor does his statement give any indica tion as to what the appellant meant, when he simply pointed his finger to a bush. The omission becomes all the more important, when we find that the articles were not buried underground or carefully concealed, but were simply "lying in the bush", as alleged by Manzur Hussain, as attesting witness of the recovery memo. It is significant to note that the A. S. I. did not give the date of the recovery. Even the identity of the articles has not been established beyond doubt. The deceased was injured on his head and yet no blood has been found on the turban alleged to have been recovered from a bush. When the prosecution seeks to prove t the guilt of an accused person by circumstantial evidence alone, that evidence must be definite and clear and completely exclude the possibility of the innocence of the accused. We feel no hesitation in saying that the learned Sessions judge, who tried this case, has given unduly excessive prominence to the recovery of the turban and the shoes.
This leaves us with the third circumstance. We have no reason to disbelieve the testimony of Murid Hussain that the deceased and the appellant left his house in the morning in the direction of Baranga lorry‑Adda, but he does not give us the date or the. day, when they left. This point is important, because the prosecution is unable to show, as to when the deceased was murdered. It is possible that the deceased was killed on the very day, when he and the appellant left the house of Murid Hussain, but it is equally possible and cannot be contradicted by the prosecution, that the deceased was killed on the next day. Since we have no evidence on the point, it would be a matter of mere speculation, as to when the deceased was actually murdered. The learned Sessions judge has also attached undue importance to the recovery of the danda, which Murid Hussain is alleged to have given to the deceased and the appellant, when they were leaving his house, May be that the danda, recovered is the one given by Murid Hussain, but it is not the prosecution case that this danda was with the appellant, when they left in the direction of Baranga lorry‑stand or was the weapon of offence because no blood has been found on it.
The prosecution story about the alleged false information given by the appellant to the widow of the deceased and the recovery of the turban and the shoes presents certain suspicious features, so that we find ourselves unable to accept it as true, and therefore we must eliminate it from our consideration. The circumstance that the deceased and the appellant were last seen together before the murder, whatever its value in the present case, does not provide sufficient evidence for conviction. On the basis of this circumstantial evidence alone, we cannot say with that degree of certainty which is always insisted upon in criminal cases, that the man is guilty. If we hold such circumstantial evidence as sufficient for the conviction of an accused person on a heinous charge like that of murder, we would be laying down a principle extremely dangerous to the administration of criminal justice.
In the present case, we do not consider it safe to uphold the conviction of the appellant only on the basis of the circumstance, that the deceased and the appellant were seen together sometime before the murder. Accordingly, we extend the benefit of doubt to the appellant, accept his appeal, set aside his conviction and sentence, and acquit him of the charge. He should be set free at once. The death sentence is not confirmed.
‑I am in complete agreement with my learned brother both in the conclusion reached and in the arguments by which that conclusion has been supported. I would add a few words only to expand those arguments a little further: In this case occular evidence of the actual occurrence is completely absent. The guilt of the accused rests on circumstantial evidence only which according to the authorities on the subject 'must be incompatible with the innocence of the accused. In this case the only evidence which is worthy of credence is that of Murid Hussain where he says that the deceased and the accused stayed with him for a night and left his house together a day or two before the murder took place. But it is difficult to believe the evidence of the Sub‑Inspector and Manzoor Hussain Lambar dar that the turban and shoes of the deceased were recovered on the indication of the accused from a place at a distance of 56 karams from where the dead body was concealed. Y here appears to be no reason why the turban and the shoes of the deceased were placed by the murderer at that distance, These articles should either have remained lying with the deceased as the danda was, or these like the pajama of the deceased could have been removed altogether. These have been shown at some distance from the dead body so that it may be possible to create a belief that the accused during the police investigation led to their recovery and as recovery of incriminating articles it may serve as a piece of evidence to connect the accused with the offence.
It is alleged that the accused indicated the place from where these articles were recovered after about ten days of his arrest. If the accused had an honest conscience to indicate the place from where incriminating articles were recovered the same conscience could have easily impelled him to make a clear breast of the offence as well. A man of the accused's intelligence was well aware' that recovery of articles on his indication would bear the effects of a con fession and would lead to his conviction. He could have therefore under the impulse of that conscience made con fession of his guilt as well. But since confession is difficult to manufacture and evidence of recovery of incriminating articles is easy to create the latter course was adopted. The evidence of the accused's guilt, in so far as it lay in his being seen in the company of the accused lash was wholly circumstanti4l and had to be strengthened by another cogent evidence. This evidence was provided by the recovery of the turban and shoes which the deceased was said to be wearing when he was in the deceased's company last. For these reasons this item is not acceptable.
The other item of evidence is the statement of deceased's wife that the accused on his return said to her that the deceased had been left at Barang Lorry‑stand. That evidence is from the mouth of deceased's wife only and as she is the wife of the deceased her statement cannot be believed unless it receives corroboration from another independent source. If that statement had been true and had been made to the police earlier the accused would have been arrested immediately after the discovery of dead body on 24th when that discovery was brought to Mst. Allah Wasai's notice, because she would have begun to charge the accused imme diately after she came to know of her husband's murder. This statement appears to have been put into Allah Wasai's mouth to create another piece of evidence against the accused and add to the weight of evidence against him.
The only reliable evidence. in this case, as my learned brother has said, is the evidence of Murid Hussain that he saw the deceased and the accused together when they left his house for Barang lorry stand a day or two before the murder was committed. The accused has no doubt failed to give any explanation as to what happened to his companion thereafter and the inference from this conduct is that his hands may not be clean. But the fact that the deceased was seen in his company last and he has failed to account for deceased's absence are capable of creating, at best, suspicions against the accused but fall short of proof. It is well- settled that suspicions however strong are not substitute for proof and without satisfactory proof conviction for an offence is not possible much less for an offence where the penalty is payable by forfeiture of life.
A. H. Appeal accepted.
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