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Criminal Appeal No. 23 of 1958, decided on 29th April 1958.
(On appeal from the Judgment and Order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 3rd April 1957, in Criminal Appeal No. 35 of 1957.)
S. 33‑That witness "could not be found" should be proved by direct evidence of person who went to execute summons.
Where the investigating officer, who had no personal knowledge of the whereabouts of the witness and who had not gone in search of, or to execute the summons on the witness and who 'made the statement before the Court that the witness "could not be served in spite of my best efforts , and the Court, after ascertaining from the defence counsel that he had no objection, proceeded to transfer the statement of the witness made before the Committing Magistrate to the Sessions file under S. 33, Evidence Act, . (I of 1872), declaring that the evidence of the witness could not be procured "without delay and unnecessary adjournment". ,.
Held, that the Court had misapplied section 33, Evidence Act and the evidence of the witness was inadmissible.
The Investigating Officer did not speak from personal knowledge regarding the uncertainty of the whereabouts of the witness. Only such a person could make a statement of fact on that point as had been engaged in the task of searching for him for the purpose of serving the summons for his appearance. In the absence ‑ of any direct evidence the mere declaration that "delay and unnecessary adjournment" would be involved in procuring the appearance of witness was not sufficient for satisfying the rele vant condition of section 33 which is that it should have been proved that the witness could not be found.
The defence counsel's consent did not do away with the necessity of the Court being satisfied by proof on the requirements of section33.
Chainchal Singh L R (72) I A 270 ref.
Opinion of Court of first instance regarding character and credibility‑Full measure of weight to be given by appellate Court to such opinion.
In accepting the evidence of a witness without considering that the ‑trial Judge had disbelieved him on important points, and with out exa1; the specific reasons given by the trial Judge for such disbelief. the Appellate Court departs from the aforesaid well establish principle.
Clarke v. Edinburgh Tramways Co. 1919 (S C) H L 35, 36 ref.
Should exclude any reasonable hypothesis of innocence of accused before conviction can be based on such evidence.
Where all the evidence is circumstantial it is necessary that cumulatively its effect should be to exclude any reasonable hypothesis of the innocence of the accused.
By hinting at a bare possibility, no such doubt can be thought to be created as might amount to reasonable doubt within the contemplation of criminal jurisprudence. In other words, where the chain of circumstances established against the accused person rai,,,., a strong probability that he is guilty of the offence charged thus constituting a strong case which may be placed before a jury (in a jury trial) it is not sufficient for the accused to suggest a mere hypothesis or a remote possibility in order to rebut that case. In order to gain a favourable verdict, it will be necessary for the accused to set up facts upon which he may rely as exculpatory circumstances (e.g. to prove an alibi) sufficient to cast a reasonable doubt over the prosecution case.
Tasadduque Hussain, Senior Advocate, Supreme Court (Aslam Riaz Hussain, Advocate, Supreme Court with him) instructed by Mushatq Ahmad, Attorney for Appellant.
S. A. Mahmud, Advocate‑General, West Pakistan (Muhammad lqbal Hussain Advocate, Supreme Court with him) instructed by lice‑ Ali, Attorney for Respondent.
Date of hearing : 29th April 1958.
This appeal by special leave, is brought before the Court by one Allah Ditta who stands convicted under section 302, Pakistan Penal Code for the offence of murder. At the t c jai, there were three other accused persons namely Ghulam Hussain Allah Bakhsh and Muhammad Bakhsh, three brothers, to whom Allah Ditta is related as a brother‑in‑law, having married their sister Mst. Miran. The case for the prosecu tion was that Bahara was killed because he was suspected of being intimate with Mst. Miran. The other three accused persons were acquitted. Allah Ditta appealed unsuccessfully in the High Court.
On the point of motive, it has been held by the trial Court that Allah Ditta had a stronger motive to kill Bahara than the other three accused persons, because Mst. Miran was his wife, and this conclusion was supported by the learned Judges of the High Court. There is no eye‑witness of the murder, which appears to have been committed in an open place on a path‑way through fields, on the night between the 17th and the 18th of August 1956. That evening, the deceased Bahara went out in search of a young camel that had strayed, and never returned. The next morning, the camel was found, and the discovery was made that Bahara had visited one Sawaya in his search for the camel. It seems that Atta Muhammad a brother of Bahara then attempted to follow his brother's footprints starting from Sawaya's house, but this did riot take him very far. Then, it was learnt that Muhammad Bakhsh, one of the accused persons had once asked a person named Mehra to prevent Bahara from visiting his house because of the suspicion mentioned above. It is said that Muhammad Bakhsh was approached during the night by a number of people and that he made a confession. (This confession has not been relied upon either against Muhammad Bakhsh or against any of the accused persons.) At about the same time, however one Lala gave the information that on the material night, he had met Bahara, out in the open and shortly after at a certain distance he had seen the three accused persons Allah Ditta, Allah Bakhsh and Muhammad Bakhsh with another man, whom . he had not identified, all carrying weapons. At this stage, Atta Muhammad proceeded to the thana' where he made a report on the evening of the 19th August 1956, containing the matter above stated.
Upon the arrival of the Police, the three persons named in the report and Ghulam Hussain were taken into custody. On the 20th August, Muhammad Bakhsh pointed out the spot where he said the murder had been committed. The statement was confirmed by the presence of blood‑stained earth some of which being removed, it was later found on analysis that the blood was of human origin. On the same day and shortly after, Allah Ditta indicated a place in a freshly ploughed field, 322 karams (550 yards) from the scene of the murder, where he said the body was buried. When this place was dugout, Bahara's dead body was indeed recovered. Allah Ditta also, at about the same time, led the Police to an abandoned but close‑by, from which he produced a spear‑blade. This also had blood on it, but by the time it reached the Serologist, the blood had disintegrated so that it could not be ascertained whether or not it was of human origin.
When the body was examined post‑mortem it was found to have five incised wounds. All of these were in the doctor's opinion caused by a sharp‑edged pointed weapon. This is also evident from the fact that the two most serious injuries penetrated deep into the chest and abdomen. The greatest width of any of these injuries was three inches and the least, two inches. The spear‑blade recovered at the instance of Allah Ditta was 131" long and 11" broad at its widest point. There need be no doubt that each of the injuries on the person of the deceased Bahara could have been inflicted with such a weapon.
In the trial Court, reliance was mainly placed for convict ing Allah Ditta upon the circumstances that he had a strong motive to kill Bahara, and that the exact location of the dead body and the spear‑blade was shown to be within his special knowledge, and these circumstances served to connect him with the actual murder. The witness Sawaya had stated at the trial that when Bahara came to his house, two of the accused persons namely Ghulam Hussain and Allah Ditta were sitting with him, and that shortly after Bahara left these two persons also went away and in the same direction. The trial Judge disbelieved the evidence of Sawaya regarding the presence and movements of Ghulam Hussain and Allah Ditta. In the first information report where Sawaya was mentioned, there was no mention of these particular matters affecting Ghulam Hussain and Allah Ditta accused. Moreover, Sawaya's statement was recorded by the Police after a delay of some two days, and in addition there was a clear reason to believe that he was inimical towards Allah Ditta. In the High Court, however, Sawaya's evidence was accepted in full, on the sole ground that the mere fact that Allah Ditta had obtained a divorce for his sister from Sawaya, whose second marriage had provided the occasion for the divorce, did not make Sawaya and Allah Ditta enemies of each other. The other two points affecting the credibility of Sawaya which were mentioned by the trial Judge were not considered at all. It is con tended before us that the High Court was in error in accepting this witness's evidence.
It is also contended that both the trial Judge as well as the High Court were in error in accepting the evidence of a witness Lala, recorded in the committing Court, as evidence in the case, without Lala being produced and examined as the law ordinarily requires. The position regarding the admission of this evidence is as follows. The Investigating Police Officer, Sh. Niamatullah at the conclusion of his examination‑in‑chief made the state ment that "Lala P. W. could not be served in spite of my best efforts". He did not say that he himself attempted to serve summons upon Lala and this would indeed have been an extra ordinary proceeding for a Sub‑Inspector of Police, since the work is ordinarily entrusted to constables. No constable was produced to say that he had been given the summons to serve on Lala or that he had been unable to trace Lala so as to effect service upon him. The Public Prosecutor requested that Lala's evidence in the committing Court should be transferred to the record of the trial under section 33 of the Evidence Act. Counsel appearing for the accused persons stated that he had no objection if the request was granted, and thereupon the trial Judge made an order admitting the evidence in which he declared that Lala's evidence could not be procured "without delay and unnecessary adjournment" and he noted particularly that the defence counsel had no objection to the course which he was asked by the Public Prosecutor to take, Accordingly the evidence was read in the case as evidence against the accused. It is con‑, tended with great force that the trial Court misapplied section 33 of the Evidence Act and on this point reference was made to the observations of the Judicial Committee in the case of Chainchall Singh (L R (72) 1 A 270). The action of the trial Judge was not supported before us by the Advocate‑General of West Pakistan, and we consider that it was clearly not within the provisions of section 33 aforesaid. On this point, it will be sufficient to cite the obser vations made by the Privy Council in the case mentioned above, with which we are in full agreement. These are as follows :‑
"Where it is desired to have recourse to section 33 of the Evidence Act on the ground that a witness is incapable of giving evidence that fact must be proved, and proved strictly. It is an elementary right of an accused person, . . . that a witness who is to testify against him should give his evidence before the Court trying the case, which then has the opportunity of seeing the witness and observing his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the witness to be before the Court, and it is only by a statutory provision that this can be achieved. But the Court must be careful to see that the condi tions on which the statute permits previous evidence given by the witness to be read are strictly proved".
The case before their Lordships of the Judicial Committee was one where a Police‑officer had testified with regard to the absent witness that he found him ill and unable to move from his house, as he was suffering from tuberculosis. Their Lordships held that the officer (presumably a constable) was not a proper person to prove from what disease the witness was. suffering and could only speak from hearsay on the point. Moreover, as to the witness's incapacity he could only speak of illness on a date 13 days before the date for which the witness was summoned to give evidence. On these facts it was held that there was no evidence before the Court that the witness was incapable of giving evidence on the later date. In that case also, a concession was made on behalf of the accused to enable the previous statement of the absent witness to be read at the trial. As to the effect of such a conces sion their Lordships made the following observation :‑
"The learned Additional Judge was no doubt largely influenced by counsel for the accused consenting to the evidence being read, but in their Lordships' opinion that does not do away with the necessity of the Court being satisfied by proof. D Neither counsel nor his client could have had any personal knowledge on the subject unless, indeed, counsel had recently seen the witness; in which case he could have so informed the Court and not merely given a consent."
These observations are directly applicable in the present case.
The Investigating Officer did not speak from personal knowledge regarding the uncertainty of the whereabouts of the witness Lala. Only such a person could make a statement of fact on that point as had been engaged in the task of searching for him for the purpose of serving the sommons for his appearance. In the c absence of any direct evidence the mere declaration that "delay and unnecessary adjournment" would be involved in procuring the appearance of Lala was not sufficient for satisfying the relevant condition of section 33 aforesaid which is that it should have been proved that the witness could not be found.
As to the evidence of Lala as well, whereas the trial Judge had regarded it as incapable of belief, the learned Judges in the High Court preferred to believe his testimony in full, on the ground that they were not convinced "as to why Lala should bring the false charge" against Allah Ditta. They took into consideration that he was related to both parties, but did not mention any of the other reasons which had been enumerated to his discredit by the trial Judge. One of these reasons was that Lala admitted that on the first occasion when he met Atta Muhammad, he did not tell him of his having seen Bahara on the material night, and the accused persons also in the same vicinity at about the same time. The point loses importance, in view of the) clear inadmissibility of Lala's previous statement as evidence at the l6 trial, in the circumstances of the case.
In the case of the witness Sawaya it is necessary to consider whether in accepting his evidence fully, and thereby overruling the estimate of that evidence formed by the trial Judge, the learned Judges of the High Court have acted in accordance with the principles underlying the safe administration of justice. One of these principles is that an Appellate Court should always give a full measure of weight to the opinion formed by a Judge of first instance regarding the character and credibility of a witness who has been examined at length before him in relation X the facts of the case. We consider that in accepting the evidence of Sawaya, without considering that the trial Judge had disbelieved him on important points, and without examining the specific reasons given by the trial Judge for such disbelief, the learned Judges of the High Court have departed from a well‑established principle, which was stated by Lord Shaw in the case of Clarke v. Edinburgh Tramways Co. (1919 (S G) 14 1J 35, 36) in the following words :‑
"When a Judge hears and sees witnesses and makes a con clusion or inference with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the Judge makes any observation with regard to credibility or not.
We consider that on the facts, the safer view to take regarding the evidence of Sawaya was that upon which the trial Judge acted.
This leaves upon the record three pieces of evidence of a circumstantial nature upon which the prosecution may justly rely to connect Allah Ditta directly with the murder, v
(1) that he was the person with, the strongest motive to kill Bahara.
(2) that he pointed out the exact spot in a newly‑ploughed field where the body was found buried, and
(3) that he pointed out a place from which a spear‑blade was recovered and that the injuries on the body were such as could have been caused by this or a similar blade.
Along with these circumstances it is necessary also to consider the manner in which the names of the culprits came to be known to the relatives of the deceased, and the manner in which this information was conveyed to the authorities, coupled with the conduct of the investigating authorities towards the accused persons and Allah Ditta in particular, and the conduct of Allah Ditta while in the custody of the Police. The prosecution witnesses have stated with clarity the steps which they took to trace the missing person Bahara and how they came by the information regarding the probable motive for the crime and the persons by whom it was probably committed, of whom Allah Ditta was one. These are entirely natural processes, and the evidence regarding them has been given in a manner calculated to attract confidence. Further confidence is inspired by the fact that as soon as information sufficient to create a suspicion firstly that Bahara was dead, and secondly that the accused persons were responsible for his death came into the possession of Bahara's relations, they immediately conveyed it to the Police. The action of the Police was particularly prompt, and it seems that within twenty‑four hours of the report having been made to them, they had arrested the accused persons and made the important recoveries namely recovery of blood‑stained earth from the spot where the murder was committed, recovery of the dead body, and recovery of the spear‑blade which was the probable weapon of offence. It is not suggested that any but direct methods were adopted to procure these recoveries. Allah Ditta denied having made these recoveries but produced no evidence in his defence, nor does it appear from the cross examination of the relevant witnesses that it was suggested by the defence at any stage that the recoveries were pro cured by irregular methods or that they did not take place in the manner stated by the investigating officer and the supporting witnesses.
Consequently, the question that arises for consideration is whether upon the evidence which has been accepted against Allah Ditta a conclusion can be reached beyond reasonable doubt that he was directly connected with the killing of Bahara and the burial of his body. The circumstance that the body was never seen in the open suggests that it was buried almost immediately after the murder, so that the most reasonable probability is that those who were concerned with the murder were also concerned with the burial. The place of burial being in an open field, which had been recently ploughed, it is in our opinion a circumstance to which great importance should be attached, that Allah Ditta knew the exact place in this field where the body was buried. The evidence does not indicate that he took any time in searching for this place, but on the other hand the investigating officer's statement gives the impression that Allah
Ditta immediately led him to the right place. The relevant passage in the evidence is as follows : ‑
"Allah Ditta accused, pointed out a place in a field as the burial place of the deceased; digging was done and the dead body of Bahara, deceased, was recovered . . . . ."
Two of the witnesses P. W. 7 Bahara and P. W. 8 Gulab also gave evidence on the point, which leads to the same conclusion namely that Allah Ditta without search or hesitation, pointed out the place where the body was buried in the field.
When in addition, Allah Ditta on the same day produced the spear‑blade which is a weapon which could have been used for causing the injuries found on the dead body, it seems to us that bearing in mind the very natural way in which all the evidence in the case has appeared, without loss of time or delay such as might indicate the possibility of fabrication, a chain of evidence is established against him upon which a strong case for direct participation in the murder of Bahara can justly be based. In view of the fact that all the evidence is circumstantial it is necessary that cumulatively its effect should be to exclude any reasonable hypothesis of the innocence of the accused. Here, Allah Ditta made no attempt to raise any plea in defence beyond that of mere denial, or to rebut the evidence led against him. The learned counsel on his behalf attempted to put forth a hypothesis that, the motive apart, the remaining facts established against Allah Ditta might prove no more than that he had received information of the location of the dead body and of the spear from some actual participants in the crime, say one of his brothers‑in‑law. On this point, the trial Judge has remarked as follows : '
"How could he by any chance know that the dead body was buried at that place and the spear blade was lying at another place particularly when the land where the dead body was buried and the land on which the jhuggi was standing were neither in his occupation nor owned by him."
To this observation, we may add that in the case of his having received information regarding the location of the body and the spear‑blade from another person, his conduct in effecting the recoveries would by itself show that his knowledge was inexact, e.g., it would have been necessary for him to search in the field for the exact spot, and again, he could not have produced the spear‑blade from its hiding place without making a search over all or at least a considerable part of the hut. If the field had been merely bare, the place where the earth was freshly dug might have appeared plainly, but the case is different where a field has been recently ploughed over. To be able to indicate without hesitation, in such a field, the exact spot where the body is buried argues direct connection with the act of burial. Similarly, with reference to the spear, exact knowledge of the place where it was concealed argues that the concealment was effected by the person having such knowledge.
It is of course possible, and the main reason for this is that the evidence before the Court is not of a direct nature, that despite the circumstances established, the possession of such knowledge might co‑exist with absence of direct connection with the murder. But, by hinting at a bare possibility of this kind, no such doubt can be thought to be created as might amount to reasonable doubt within the contemplation of criminal juris prudence. In other words, where the chain of circumstances established against the accused person raises a strong probability that he is guilty of the offence charged, thus constituting a strong case which may be placed before a jury (in a jury trial) it is not sufficient for the accused to suggest a mere hypothesis or a remote possibility in order to rebut that case. In order to gain a favourable verdict, it will be necessary for the accused to set up facts upon which he may rely as exculpatory circum stances (e.g. to prove an alibi) sufficient to cast a reasonable doubt over the prosecution case. Nothing of this nature emerges from the record of the present case, and no hypothesis has been presented before us by the learned counsel on behalf of the accused which can be thought in .any way to cast any doubt upon the conclusion, that the facts rioted above, establish that Allah Ditta was clearly connected with the murder of Bahara.
Accordingly, we dismiss this appeal.
A. H. Appeal dismissed.
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