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Criminal Appeal No. 18 of 1959, decided on 4th November

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 4th February 1959, in Criminal Appeal No. 12 of 1955 and Court Acquittal Appeal No. 102 of 1959).

‑Witness varying statement in Court of Session and saying that accused's face eras muffled‑No such thing to be found in witness's statement in Commit ting Court or in that recorded under S. 164, Cr: P. C. Statement before Committing Court brought on Sessions record‑Held, High Court had acted rightly in convicting accused on witness's statement in Committing Magistrate's Court in circumstances of case.

Hamid‑ud‑Din, Advocate Supreme Court, instructed by Amjad Hussain, Attorney for Appellant.

Jamil Hussain Rizvi, Advocate‑General of West Pakistan (Jan Hussain, Advocate Supreme Court, with him), instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing: 4th November 1959.

.‑This is an appeal from the judgment of a Division Bench of the High Court of West Pakistan at Karachi reversing, on appeal by the State, an order of acquittal by the Sessions Judge, Khairpur State, convicting Abdul Majid appel lant under section 302 of the Pakistan Penal Code and sentencing him to transportation for life.

Haroon was murdered in front of the house of one Hasan Khati in the village of Muhammad Kalhoro on the morning of 5th March 1954. The assailant inflicted on him several injuries with a hatchet causing his instantaneous death. The prosecution case against the appellant was that it was he who murdered Haroon because of the suspicion that the deceased was carrying on an immoral liaision with the wife of the appellant's brother Abdul Hamid. The main evidence in the case was that of Hasan Khati in front of whose house the murder was committed and the circum stantial evidence that the appellant, on the very first day of the investigation, produced a hatchet and was found wearing a turban which were both stained with human blood. Hasan Khati, the only eye‑witness in the case, gave definite evidence before the Committing Magistrate that in his own view the deceased was done to death by the appellant under a sharin tree in front of the wit ness's house. His statement, recorded in the course of investigation under section 164 of the Criminal Procedure Code was equally definite. At the trial, however, he softened his evidence against the appellant by alleging that the murderer had muted his face and that he had suspected him to be the appellant because the culprit after committing the crime had gone in the direction of the appellant's house. The Sessions Judge who delivered his judgment about two months after the conclusion of the trial wrote a very artificial and laboured judgment acquitting the appellant. On appeal by the State, the learned Judges of the High Court have examined each and every reason given by the trial Judge for acquittal and differing from him convicted the appellant. We have examined the reasons of the Sessions Judge in support of the acquittal and they appear to us to be far‑fetched and fantastic. The deceased was killed in broad daylight in front of the house of the eye‑witness Hasan Khati and there cannot be the slightest reason for suspecting the witness's evidence when he says that it was the appellant who committed the murder. The variation in his evidence at the trial is easily understandable and is no more than a disingenuous attempt to confirmed (sic) the trial Judge because none of the three assessors was impressed by the explanation given for the variation and they all returned the verdict that the man who had killed the deceased was the appellant. Three persons who are neighbours of the witness came to the scene of the crime on hearing an outcry and found Haroon lying dead: The witness told them that the deceased had been killed by Abdul Majid. Neither in his statement under section 164 nor in his deposition before the Com mitting Magistrate did the witness entertain any doubt about the identity of the culprit. The High Court has therefore correct appraised the evidence of this witness and rightly decided to act upon the deposition before the Committing Magistrate which had been duly transferred to the record under section 288, Criminal Procedure Code. We also agree with the reasons given by the learned Judges for the finding that a hatchet stained with human blood was produced by the appellant on the very first day of the investigation and that his turban had stains of human blood on it when it was taken into possession by the police from his person. There was also sufficient evidence in proof of the motive. The appellant has been rightly convicted and sentenced and we dismiss his appeal.

A. H.

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