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Criminal Appeal No. 27 of 1959, decided on 13th April, 1960.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 9th July, 1958, in Criminal Appeal No. 668 of 1957, Murder Reference No. 135 of 1957).

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‑When will Supreme Court interfere‑No ground of acquittal supportable Decision of fact taken on inadmissible evidence ; faulty reading of evidence ; departure from procedure calculated to interfere wish due and safe administration of justice‑Constitution of Pakistan (1956), Art. 160‑[Lalu v. The State P L D 1959 S C (Pak.)

Criminal appeal from acquittal before Supreme Court‑Offence of murder‑Extreme penalty not awarded in view of length of time (3; years) since commission of crime.

‑Criminal appeal against acquittal in murder case, by father of deceased's father.

Zahoor Ahmad, Advocate Supreme Court for Appellant.

Mushtaq Hussain Khan, Advocate Supreme Court for Respondents Nos. 1 and 2.

Nasim Hasan Shah, Advocate Supreme Court, instructed by Ijaz Ali, Attorney, for Respondent No. 3.

Date of hearing :13th April, 1960.

CORNELIUS, J.‑This is an appeal brought by special leave granted to Fateh Muhammad father of the murdered man Muhammad Ramzan, to call in question the acquittal of the c alleged murderers, namely, Bagoo and Allah Bakhsh, which was ordered by the High Court of West Pakistan ‑in appeal from a conviction and sentences of death imposed by the Sessions Judge, Rahimyar Khan. Notice was duly served upon the two respon dents Bagoo and Allah Bakhsh, who were arrested in compliance with the bailable warrants issued by this Court. Both have appeared before us and their case against the reversal of their acquittal has been argued on their behalf by Mr. Mushtaq Hussain Khan who was appointed counsel at State expense since the case might have involved the imposition of death sentences. The res pondents were unable to engage counsel for themselves. Dr. Nasim Hasan Shah has appeared on behalf of the State and has supported the appeal.

The facts are very plain, and the case as a whole has given us the impression of being remarkable for its straight‑forwardness. The first information report in the case was made at thana Khanpur some five miles from the scene of the crime which is village Gullan Gul Kala at 12‑15 a.m. on the morning of the 30th October 1956. The injured man Muhammad Ramzan had at the same time been carried to Khanpur, and when regard is had to the rate of progress possible in those circumstances, it is apparent that the crime could not have been committed much later than about 9 p.m. that night. Muhammad Ramzan was taken to the hospital in Khanpur, where he died at 12‑45 a.m. forthcoming morning. The postmortem examination was held the same morning, and revealed four very large cuts, two on the right and left sides of the head p8 and 9" in length respectively, a third wound "8 long across the mouth, and the fourth 8" long on the chest and abdomen which penetrated deep into the body.

The first information report gave the following account of the motive for, and the execution of the crime. Bagoo and Allah Bakhsh were enraged with Muhammad Ramzan because of suspicion that he had an illicit affair with their sister‑in‑law Mst. Samo. They were on the look out for an opportunity to take revenge. On the night in question, Fateh Muhammad with his wife Mst. Bakhtawar, his other son Imam Bakash and the latter's wife Mst. Gohar as well as the deceased Muhammad Ramzan were sleeping in the courtyard of their house. Muhammad Ramzan's charpoy was close to the opening of the courtyard into the gali, and the other charpoys were at short distances of 2 or 3 karams from it. There was a lantern burning which was attached to a pole in front of the kotha. At about 10‑30 p.m. Ramzan uttered a cry and in the words of the first information report, Fateh Muhammad awoke from sleep and in the light of the lamp saw Bagoo and Allah Bakhsh each with a hatchet striking blows at Ramzan. They being co‑villa gers he recognised them at once. He raised an alarm and went forward but having been threatened with death stayed back. His alarm aroused his wife Mst. Bakhtawar, his son Imam Bakhsh and others who got up and started to weep and wail. The assailants wounded Muhammad Ramzan most mercilessly. The cries of the inmates attracted two persons Habib who is brother of Fateh Muhammad and Sultan an outsider and others who were neighbours and they came to the spot. The culprits seeing the people approaching ran away. The witnesses also recognised them but did not dare to pursue them because they were armed.

As a preface to the narration of this offence Fateh Muhammad made a fairly detailed statement in the first informa tion report to the effect that he had a dispute with his immediate neighbours Pathana and Kamal over land, and these persons were consequently out to do harm to him and his son Ramzan in person and property. They had interfered against his interest in a matter under dispute concerning Fateh Muhammad's daughter Mst. Malan. At the close of the F. I. R. the suggestion was made that Pathana and others were behind Bagoo and Allah Bakhsh whose attack was due to their suspicion over Ramzan's irregular friendship with Mst. Samo.

It seems that Pathana and Kamal were summoned by the Police in the course of the enquiry, and Ch. Habibullah who investigated the case has admitted that he joined them in the investigation but then asked the zamindars to enquire and let him know whether these persons had in fact abetted the crime and on being satisfied that the suspicion of their complicity was unfound ed, he took no action against them. It would thus seem that the account of the enmity with Pathana and others was introduced into the F. 1. R. by Fateh Muhammad on the basis of suspicion only, and that this suspicion was duly cleared in the course of the investigation. The inclusion of their names is therefore no indication of the existence of any doubt as to the identity of the actual culprits. The evidence which is of the greatest importance in the case is that of Fateh Muhammad (P. W. 12), his wife Mst. Bakhtawar (P. W. 10) and his son Imam Bakhsh (P. W. 11). The statements of these persons as to the occurrence are consis ,ant with each other and exhibit not the faintest doubt as to their having identified the culprits and seen the actual delivery of blows. In one point these statements vary from the F. 1. R. namely, that all of them say that they had not yet fallen asleep, and had been talking to each other just before the attack was made. Muhammad Ramzan on the other hand had eaten his dinner earlier that night and had gone to sleep first covering himself with a quilt. Mr. Mushtaq Hussain Khan for the respondents has stressed the point, in order to suggest that these witnesses were fast asleep when the attack was made, and that it was completed so swiftly that the culprits escaped before the others could get up properly to see them. To this argument there is the evident reply that the time of the occurrence was very early in the night as shown by the fact that by 12‑15 a.m. the injured man had already been carried on a charpoy (as stated in the F. I. R.) to the thana five miles away. It is therefore easy to believe that the inmates were not yet fully asleep when the attack was made. This belief is confirmed by the behaviour of the two witnesses Sultan and Habib whose evidence will be considered presently.

As regards the presence of light from the lantern,

all these witnesses have supported the fact that a lamp was burning in the courtyard, and as has been seen, this was mentioned also in the first information report. No lamp was produced in Court, that was obviously unnecessary, and such production would not have assisted materially in the belief that on the night in question a lamp was actually set up there and was burning. What induces belief on the point is the statement of Fateh Muhammad that within a month before the occurrence, Allah Bakhsh had reported to him that on account of the illicit intimacy of Ramzan with his sister‑in‑law, Mst. Samo, they i.e. Allah Bakhsh's party were going to murder Ramzan, and Fateh Muhammad was so much alarmed by it that he took his son to Muhammad Umar, (P. W.2) at Khanpur and left him there for safety for about 15 days. He then began to feel the need for Ramzan's help in his cultivation and brought him back. Only two days had elapsed after his return, when Muhammad Razman was murdered. The lamp at night would then be justified on the ground of greater security.

The fact of Muhammad Ramzan's liaison with Mst. Samo is fully established. Muhammad Ramzan's wife Mst. Bahawal has given evidence as P. W. 9. She was not sleeping in the house that night and, in fact, was not living with her husband because about a month before, he had beaten her and she bad left the house and gone back to her parents. The reason for the beating was that she had seen Ramzan with Mst. Samo and had complain ed about this to her mother‑in‑law who mentioned the matter to Fateh Muhammad, and Fateh Muhammad had given a beating to Muhammad Ramzan. This account is repeated by Mst. Bakhtawar as well as Fateh Muhammad, and finds mentioned in the first information report as well, although not in as full detail as in the evidence. There need not be the slightest doubt that this liaison was the cause of the murder of Muhammad Ramzan.

In the judgment of the learned Sessions Judge, there is included a carefully written paragraph regarding the location of the beds of the deceased and the various witnesses, which it is of advantage to reproduce here :‑

"Before entering into the evidence and discussion of this case I feel necessary that I should given a brief topography of the place of occurrence and also other relevant matters for the purpose of understanding the facts of the case. According to the map, Exh. P. K. prepared by Abdul Karim patwari, P. W. 6, and the evidence of the P. Ws. the houses of Fateh Muhammad, P. W. is surrounded by the four walls, out of which the eastern wall is two feet high and the remaining walls are four feet high. The house has a door‑way on the southern side. Muhammad Ramzan deceased was sleeping on a cot one and half karam just opposite the door‑wad inside of the haveli (spot P. K/2) on the night of occurrence and two karams away from his charpoy in the North (Spot P. K/1 the burning lantern was hanging with a wooden pole, Fateh Muhammad, P. W. 12, the father of the deceased, was sleeping (spot P. K./4) three karams away from charpoy of the deceased in the north‑east and farther to him, at the distance of two karams. Imam Bakhsh, P. W. 11, the brother of the deceased was asleep at (spot P. K./3). Similarly Mst. Bakhtawar, P. W. 10, the mother of the deceased was lying on the cot two karams away towards the North from the charpoy of Fateh Muhammad, P. W. (spot P. K./5)".

It is noteworthy that in this appreciation of the situation of the witnesses in relation to the cot of the deceased by the Sessions Judge who had heard all the witnesses and had had the facts placed before him by the patwari who drew the map, by the thanedar and by the spot witnesses, no mention is made of any impediment such as a wall lying between any of the witnesses and the cot of the deceased. The impression clearly is that all the cots were placed within the same enclosed courtyard. None of the witnesses and in particular Imam Bakhsh (P. W. 11) was question ed as to any such impediment, and therefore it may be safely concluded upon the evidence that there was no obstruction of any kind between any of the witnesses and the cot of the deceased which could prevent them from seeing immediately with a turn of the head what was happening to Muhammad Ramzan.

Mention has been made of two witnesses, Sultan P. W. 1, and Habib P. W. 8. Sultan commenced his evidence by saying that the accused persons were related to him an Sotars, and in cross‑examination, he gave details to show that he and Allah Bakhsh were descended from a common great‑great‑grand father. Allah Bakhsh and Bagoo are cousins inter‑se. He denied relation ship with the deceased or his family. The point, as well as the absence of any indication of enmity towards either of the accused persons, is one of great importance. Habib, as stated already Fateh Muhammad's brother, but his house in the village is about 120 karams 200 yards from the spot. Sultan had returned from Khanpur where he does his daily work, and had gone to Habib's House to give a message for the following morning to Habib's son. Having done this, he walked towards his house, accom panied by Habib who had to see whether water had come into the canal. This apparently took them in the direction; of Fateh Muhammad's house, from where they heard the alarm, and running in that direction they saw the two accused persons coming out of the courtyard of Fateh Muhammad with hatchets in their hands. Seeing the weapons, they stood aside and the accused escaped. Going inside, they saw what had happened. Both men helped to take Muhammad Ramzan to Khanpur.

A point of some importance is that the time of the occurrence appearing from this evidence appears not to be any late hour of the night. Sultan had only just returned from his daily work in Khanpur ; it was not a case of the two men meeting at quiet of night, say for the purpose of going out to get their turn of canal water. The incident occurred at a time when the day's work was about to be finally completed and the quiet of night was about to fall over the entire village. It is not the usual hour for such crimes, particularly where the culprits wish to avoid discovery, but here the threat of murder had been openly held out, and there need be no difficulty in holding that the crime was carried out in more or less open fashion.

The accused persons were arrested by Inspector Ch. Habib ullah. Allah Bakhsh was arrested on the 30th October and on that very day, he accompanied the Police by bus from Khanpur towards a place called Zahir Pir and when they had gone 5 miles or so Allah Bakhsh stopped the bus and the Police party got down and Allah Bakhsh led them to a bush about 12 feet away from the road and from a place under that bush dug out a kuthari blade. Next, upon enquiry regarding the handle of this kulhari Allah Bakhsh led the Police to his own house and brought out the handle from the hatched roof of his chappar. Three independent wit nesses have spoken to these recoveries in support of the Inspector. It is apparent that the manner and place of recovery of this weapon in the course of enquiries regarding the instrument allegedly used by Allah Bakhsh for the commission of the crime is extremely significant. It serves as a circumstance connecting Allah Bakhsh with the crime then under investigation in which he was alleged to have used just such a weapon, the injuries found being such as could have been caused with such a weapon. Bagoo was arrested on the 31st October 1956 and on the following day i.e. the 1st November 1956, he produced a kulhari which he recovered from an open field belonging to one Fateh Muhammad. Two witnesses have spoken to this recovery corroborating the statement of . Habibullah. It may be mentioned with reference to these hatchets that they were sent to the doctor at Khanpur who made a report to the effect that one of the hatchets bore stains of blood, but not the others, and advised that the blood‑stained hatchet should be sent to the Chemical Examiner. It appears that this was not done. He expressed the opinion that the injuries of the deceased could have been caused with these two hatchets.

The accused persons pleaded false implication and produced no evidence. At one stage, it was suggested on their behalf that they would produce Mst. Samo who had been called as a witness for the prosecution, but had been given up because she had turned hostile. Later, it appears that they decided not to produce Mst. Samo or any other witness.

We have examined the circumstances of the case and the evidence led in detail and have endeavoured to form our own opinion as to the facts relevant to the acceptance of that evidence, not for the purpose of substituting our own conclusions for those of the learned Judges in the High Court, but because it is possible to demonstrate with certainty that none of the grounds upon A which the learned Judges have purported to acquit the respondents is at all supportable. We say this with great regret, for those who seek justice at the hands of a High Court are entitled to expect that their matters will be examined with care in order to gain a correct appreciation of the facts arid for this purpose, the ordinary requirements of accuracy and correct reading of the evidence at least must be fully satisfied. This Court on principle hesitates to interfere with conclusions of fact recorded by High Courts.

That is a principle which will be departed from only in very exceptional cases, namely, in those cases in which some other equally important or more important principle has been violated. Thus, if the decisions of a question of fact has turned upon inad missible evidence or upon a faulty reading of evidence, or where has been a departure from due procedure, in the reception of evidence or otherwise, in the trial of the matter, which is calculated, to interfere: with the due or safe dispensation of justice, interference by this Court will become necessary. It is therefore with reluc tance that we have approached the duty of considering whether the grounds given by the learned Judges in the High Court for rejecting the entire evidence in this case can stand to reason at all, and it is not without concern that we have come to the conclusion that the answer to that question must be in the negative.

The determinative portion of the judgment of the High Court commences with the statement that the prosecution case "rests on the evidence of the alleged eye‑witnesses" and that except Habib (P. W. 8) the rest of the eye‑witnesses are related to the deceased". In the same paragraph the learned Judges go on to describe Sultan P. W. as paternal uncle of the deceased, but say that Habib is an independent witness. There are several mis‑statements in this short paragraph. The case does not rest purely on the direct evidence of eye‑witnesses. Sultan and Habib who have been referred to in this paragraph as if they were among the eye‑witnesses, had never claimed to be eye‑witnesses. Finally, it is Habib who is paternal uncle of the deceased and not Sultan, and as for Sultan, he is not merely an independent witness, but he is in fact related to the accused persons and is not shown to bear the least enmity towards them. Thus, from the commencement of the learned Judges' examination of the case, their approach was vitiated by their failure to read and regard the evidence in the case correctly.

In the very next paragraph, they refer to Sultan and Habib as persons who reached the spot on hearing the alarm, and after recounting briefly the circumstances which brought these two witnesses to the vicinity of Fateh Muhammad's house, they declare that there is a "serious discrepancy between the evidence of Sultan and Habib P. Ws. and the statement of Mst. Bakhtawar". Next, what Mst. Bakhtawar said is produced in the judgment. She had only said that she and the other inmates of the house raised an alarm which attracted Sultan and Habib who cried out that they were coming and hearing this the accused persons ran away. After their flight, Sultan and Habib came into the haveli. No conflict of the slightest importance appears between this statement by Mst. Bakhtawar and the evidence of Sultan and Habib on the same matter. Mst. Bakhtawar's statement cannot be understooc to mean that Sultan and Habib did not have an opportunity to see the culprits escaping from the haveli Therefore, the conclusion of

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