ALLAH BAKHSH Versus SHAMMI

ORDER

1. ANWARUL HAQ, C. :f.-This appeal, by special leave of the Court, seeks to call in question an order made by a learned Judge of the Lahore. High Court on the 8th of November, 1972, by which a revision petition filed by the appellant Allah Bakhsh against the acquittal of the respondents Shammi and Shamman of offences falling under sections 302 and 307 of the Pakistan Penal Code read with section 34 thereof, was dismissed.

2. Briefly stated, the prosecution case was that Mst. Nooran, wife of the complainant, P. W. 11, Allah Bakhsh had illicit. relations with respondent Shamman Kalyar, and the latter had warned the former's father P. W. Ahmad that if she was married to any one else, the respondent would kill her as well as her husband. Nooran was, however, married to the complainant about 19/20 days before the occurrence. Accordingly respondent Shamman Kalyar, with the assistance of his servant, respondent Shammi, went into the Kotha of the complainant at mid-night and attacked him and his wife Mst. Nooran while they were lying together on a cot. While respondent Shamman Kalyar, who was armed with a toka, got on the chest of the complainant, respondent Shammi cut the throat of the petitionercomplainant with a knife. Respondent Shamman Kalyar killed Mst. Nooran with the toka. A lantern was then burning in the Kotha. At the alarm raised by the petitioner, P. Ws. 12 and 13, brother and cousin of the petitioner respectively, rushed to the Kotba and they too saw the occurrence. A First Information Report was lodged without undue delay and the respondents were implicated in the crime. During investigation a blood-stained knife was recovered at the instance of respondent Shammi.

3. The Courts below have taken the view that, according to the medical evidence, the nature of the injury on the throat of the appellant was such th4t he could not have raised an alarm as alleged by him, with the result that the prosecution witnesses Salabat (P. W. 12) and Pehlwan (P. W. 13) could not have been attracted to the spot. The contention of the learned counsel appearing for the appellant is that, in the first puce, the Courts below have overlooked the fact that Salabat being a resident of the adjoning Kotha, could easily have been attracted on hearing a slight scuffle or alarm; and secondly that the appellant himself could have raised an alarm before injury to his throat was caused, and, therefore, it could not be said that the medical evidence necessarily contradicted the assertion made by the appellant to the effect that he had raised an alarm which resulted in attracting his brother and his cousin to the scene.

4. The learned counsel further contends that, in any case, even if the evidence of Salabat and Pehlwan is kept out of consideration, it was the duty of the trial Court as well as of the High Court to examine the evidence of the appellant himself who has been asserting throughout that he identified the two culprits who injured him and killed his wife Mst. Nooran who was sleeping next to him on the same cot. The learned counsel submits that both these men were fully known to the appellant and there was, therefore, nothing improbable in his being able to identify them as they were in extremely close proximity to him during the assault.

5. Mian Nusratullah, Advocate appearing for the State, supports this appeal, and submits that it was a fit case where the High Court should have ordered a re-trial, as unfortunately the State. had failed to file an appeal against the. acquittal of the respondents.

6. Mr. Ghazanfar Ali Gondal, learned counsel appearing for the respondents, submits that there are a number of circumstances which militate against the acceptance of the evidence of the appellant Allah Bakhsh, and indicate that some robbers may have entered the house for the purpose of stealing the gold ornaments of the murdered woman, but the respondents had been named by the appellant on suspicion. He further submits that, in any case, if the evidence of the two eye-witnesses Salabat and Pehlwan is kept out of consideration, then no conviction can be recorded against the respondents on the basis of the solitary testimony of the appellant Allah Bakhsh, and, accordingly, no useful purpose can be served by ordering a re-trial. In support of this proposition, Mr. Gondal has referred us to Nura and another v. Emperor (1), Vandivelu Thevar v. The State of Madras (2), Shah Wali v. The Crown (3) and Mahmood Khan v. Ahmad and 2 others (4).

(1) A I R 1936 Lah. 778 (2) P L D 1957 S C (Ind:) 525 (3) 1971 S C M R 273 (4) 1972 S C M R-20

7. Before adverting to the question whether this is, indeed, a fit case where a re-trial should have been ordered or not, we may dispose of Mr. Gondal's argument that in a murder trial a conviction cannot be based on the solitary testimony of a single witness. Although some observations to this effect-were, indeed, made by the learned Judges of the Lahore High Court in the first mentioned case, but such a proposition is not supported by the other judgments relied upon by Mr. Gondal. In the case from the Indian jurisdiction, it was held that the proposition that in a murder case the Court should insist upon plurality of witnesses, is much too broadly stated. It was observed that the Court was concerned with the quality and not the quantity of the evidence necessary for proving or disproving a fact. In the case of Shah Wali, it was held by this Court that in a murder case conviction can be based on the statement of a single witness if he is found to be reliable. In the last case, namely, that of Mahmood Khan, the headnote is somewhat misleading, as it gives the impression that a conviction for murder cannot be based on the solitary testimony of one witness. A perusal of the facts of the case, however, shows that the solitary witness sought to be relied upon by the prosecution was a person, who had not given any details of the crime in the F. I. R. made by him, and his ocular account was contradicted by the medical evidence, and there was also doubt as to whether he was, in fact, able to see the assailants from a distance of 200 paces from the scene of murder. 1n these circumstances, it was held that the High Court appeared to have acted rightly, in accordance with correct principles governing the safe dispensation of criminal justice, in refusing to place reliance on the solitary testimony of one witness. It is clear to us that the conclusion reached in this case is confined to its own peculiar facts and does not purport to lay down any general proposition, The general principle, on the other hand, is that even in a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable. In other words, the emphasis is on the quality of evidence, and not on its quantity.

8. Having made the legal position clear, we only wish to add that it would not be right for us to embark upon a detailed analysis of the evidence of the, appellant Allah Bakhsh, who was admittedly injured during the course of the same incident, and his wife was murdered while sleeping on the same cot. The trial Court as well as the High Court have unfortunately failed to examine his evidence with the care and attention that it deserved, and have simply been swayed by the impression formed by them that, in view of the nature of the injury to his throat, he could not have raised an alarm so as to attract the other witnesses, without giving a finding whether he could not have raised an alarm before his throat was slit, and whether his own evidence could be relied upon even without .corroboration. We are, accordingly, of the view that this was, indeed, a fit case in which the State should have filed an appeal against acquittal, and, failing that, the High Court should have ordered a re-trial.

9. We would, therefore, accept this appeal, set aside the acquittal of the respondents on both the charges framed against them, and direct that they be re-tried by another Sessions Judge of competent jurisdiction. Both the respondents are on bail, and are directed to appear before the Sessions Court, as and when required to do so to stand their trial. We leave it to the Court concerned to decide whether they should continue on bail during-the trial or taken into custody.

10. Appeal accepted.