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Criminal Appeal Nos. 156, 176, 183, 185, 192 and 202 and Criminal Revision No. 89 of 1966 decided on 7th September 1967.

-- S. 30‑Confession, although retracted, corroborated by independent evidence and proved against confessing accused‑Can be taken into consideration against co. accused in same offence.

Jogau BIN v. The State P L D 1960 S C 313 and Amirali v. The State P L D 1967 Kar. 753 rel.

, S. 326‑Grievous hurt- Sentence‑Enhancement‑ Description of injuries (caused by acid burns) indicating ferocity and determination with which assault committed on complainant and her party, resulting in permanent disfigurement and deformation for life of two women and a child -Trial Judge describing injuries as of ghastly nature‑Barbarism and impunity with which injuries caused and their result on future lives of injured frightening to visualize‑Circumstances of case, held, call for exemplary punishment‑Sentence of 10 years' R.. 1 enhanced to transportation for life namely 14 years to be fully undergone by each accused.

Kaikobad for Appellant No. 1.

Manzoor Hussain for the State.

Date of hearing: 7th September 1967.

This order will cover the above‑mentioned, criminal revision filed by the State against the conviction of the appellants in the rest of the six appeals. The six appellants in these appeals have been convicted by the learned Additional Sessions Judge, Karachi, under sections 452, 326 and324 read with section 34, P. P. C. and each of them sentenced to R. 1 for ten years. No separate sen tences have been imposed for each of the offences with which the appellants were charged but it must be presumed that the sentence of 10 years has been inflicted under section 326, P. P. C. read with section 34, P. P. C. on each of these five appellants. Appellant Ghulam Rasul alias Gama has been convicted under sections 452, 326 and 324/114, P. P. C. as an abettor. Ghulam Rasool and the other five appellants have appealed to this Court against their convictions, Ghulam Rasool through his counsel Mr. Kaikobad, and the other five appellants from jail. Revision Application No. 89/66 has been filed by the State being aggrieved with the sentences inflicted on each one of these appellants and seeking enhancement of sentences on the ground of their being manifestly inadequate in view on the cruel nature of the crime established to have been committed by the appellants. The incident in which several persons were injured took place on the 9th December 1964 at about 10‑30 p.m. at night and is best described in the words of Mst. Amir Jan the first informant who lodged an F. I. R. at the Napier Police Station the same night at (sic) O'clock giving a brief description of the offence as one in which acid had been thrown and injuries inflicted with knife, having taken place in the Bara Imam Gali of Napier Road about a furlong and a half from the police station. Roughly translated the F. I. R. reads as follows :‑

"I have been living along with my children in Bara Imam Gali, Napier Road, for the last 14‑15 years. My step‑daughters Mehrun‑Nisa, Kaniza, Qamrun‑Nisa, Fakhrun‑Nisa and Bilquis alias Nimo prostitutes, are singers by profession. Gama a Goonda and a Badmash lives in Bara Imam Gali and had desired to marry‑my daughter Mahrun‑Nisa since long. As he is a Badmash, Charas seller, gambler and drunkard, I Mehrun -Nisa and her sisters refused to consent to the marriage. Gama, therefore, had enmity with me and my daughters and threatened that if I did not give the hand of Mehrun‑Nisa to him lie would throw acid on Mehrun‑Nisa and all of us. Gama has gone away somewhere having instigated Munira, Bashira, Ghulam Nabi alias Mota and Yasin who lived with him, are his co‑Badmashs and sell Charas, to throw acid and stab me, Mehrun‑Nisa and my other daughters. Today, at about 10‑45 p.m. when my five daughters and their children Parvaz, Najam Ahmad, Fareeda, Muhammad Ismail and others like Barkat Ali alias Baka, Abdullah, Muhammad Arif were present, Munira, Bashira, Ghulam Nabi alias Mota and Riaz all of a sudden entered my house. Bashira, Ghulam Nabi alias Mota and Riaz threw acid which was contained in bottles and glasses at me and my daughters and their children. Munira threw acid on any daughter Bilquis and stabbed her on her head and buttocks and also sprinkled acid on her face. lie attacked we with knife and sprinkled acid and I was stabbed on my left elbow. Muhammad Ismail, Sharafuddin, Muhammad Arif alias Arboo, Barkat Ali alas Baka and Abdullah and others witnessed this incident. Munira, Bashira, Ghulam Nabi alias Mota and Riaz after throwing acid on us and stabbing us have run away. My daughters and their children who are in pain and have been injured have gene to the hospital from the house: There are marks of acid burn on my person and of stab wounds on my left elbow. There are marks of acid burns on the right calf and left buttock of Ismail whose shalwar has been burnt. I have come to report along with Ismail. I will go to the hospital for treatment of Ismail. My complaint is against Nlunira, Bashira, Ghulam Nabi alias Mota and Riaz for entering my house and inflicting knife injuries on me and my daughters and their children. Their names I have already given."

Sub‑Inspector Maqbool Hussain was the A. S. 1 at the Napier Police Station at the time. He recorded the F. I, R. and immediately went to the scene. Burnt marks of acid were found on the curtains, carpets and clothes of the injured persons. Two aluminium glasses were recovered smelling of acid anti two shalwars and a frock were found stained with blood. These articles were secured and a mashirnama was prepared in the presence of mashirs Muhammad Yousuf and Sarwar. All the injured had already been sent to the Civil Hospital which was visited by the Investigating Officer. The injured were not in a fit state to make a statement. Munira was arrested. on 10‑12‑1964 at 8‑45 p.m. Riaz and Muhammad Bashir son of Fazal Din alias Bashira on 11‑12‑64 and Ghulam Rasool alias Gama on 12‑I2‑64 from Bihar Colony. A long knife was found in the possession of Gama. A case was registered against him under the Arms Act at the Khadda Police Station. On 12‑12‑64 Ghulam Muhammad alias Mota was arrested from a hut in Muslimabad. He led the police party and in the presence of mashirs and produced a dagger from under a mat outside the hut. A mashirnama was prepared and the dagger was secured. On 13‑12‑64 Riaz volunteered to point out the shop from which he had purchased acid and led the police party and the mashirs to shop of one Abdul Razzak on Napier Road. The statement of the shopkeeper Abdul Razzak was recorded. On 14‑12‑64 further statement of Msr. Amir Jan was recorded from which the name of Muhammad Bashir son of Feroz Din transpired. This accused was arrested at the showing of Mst. Amir Jan. The statements of the injured girls were recorded on' 10‑12‑64. On 15‑12‑64 Riaz was produced before Mr. Anwar M. Shaikh and had his confession recorded, after the usual formalities had been observed. He had acid injuries on his back and these were recorded by the Medical Officer Munira also had acid burns on his fingers and this was noted on a medical examination of his person after his arrest. Muhammad Bashir son of Feroz Din had his confession recorded on 19‑12‑64 after which he was sent to the lock up. The case was thereafter challaned by the successor of Mr. Muhammad Aslam 13Aoch who took over on the 29th December 1964 and submitted charge‑sheet against the six accused.

2. The background of the case, therefore, is that of the alleged infatuation of the accused Ghulam Rasool alias Gama for Mehrun‑Nisa, of his offer to marry her and of Mst. Amir Jan and her daughters unanimously refusing to accede to Gama's demand because of his character and past antecedents. It is the case of the prosecution that Gama's offer and threats thereafter were sent through P. W. Chowdhury Hashmatullah, that on the day of the incident a function was in progress in the house of the first informant Mst. Amir to celebrate the birth of a son to Mst. Qamarun‑Nisa. Members of their community had been invited to the function through barbars, Sharafuddin and Ismail but several guests had refrained from attending the function owing to its being generally known that Gama had threatened to wreak vengeance.

3. The case of the appellants in the lower Court was that they were innocent, that they had been falsely implicated owing to their being respectable persons in the locality. Ghulam Rasool alias Gama's defence was that for being in illegal posses sion of pill of Charas he had been arrested by Mr. Sakhi Muhammad Excise Inspector. In defence this Sakhi Muhammad was examined together with the lock up register regarding the entries of Ghulam Rasool s arrest. The case of Munira was that the doctor's certificate in respect of acid burns on his person was false. He also considered himself to be a respectable person of the Napier Road locality. Riaz's acid burns were explained and now continued to be explained by Riaz who is now before me having been brought from jail, in that he was in a tea shop where he heard cries and was attracted to the scene where he saw some persons throwing acid at the inmates of the house. Some of the acid fell on him. As to Riaz's purchase of the acid from the shop of Abdul Razzak this appellant has denied having either visited the shop or pointed it out to the police. The judicial confessions have been retracted by both the appellants Muhammad Riaz and Muhammad Bashir son of Feroz Din who made them. Muhammad Bashir son of Fazal Din explained the acid burns on his person by stating that he was in the door‑step outside the premises of Mst. Amir Jan when some one threw the glass containing the acid from upstairs drops of which fell on him. The appellant Ghulam Nabi alias Mota denied having pointed out the dagger from his but and was unable to explain why he had been implicated in this case. The confessions are alleged to have been made by the accused out of fear of the police and Ghulam Rasool alias Gama has denied having asked for the hand of Mehrun‑Nisa or that it was refused to him or that he had threatened to wreak vengeance on that account. He also contended that Riaz and the other appellants were not members of his gang and that he had enmity with the police on the one hand and the entire set of prostitutes of Napier Road on the other. Gama's defence of alibi bas been dib believed by the trial Court.

4. The learned Additional Sessions Judge framed four points for determination and they are as follows: ‑

(i) Whether grievous and simple hurt with acid and dagger were caused to Mehrun‑Nisa, Bilquis, Fakhrun‑Nisa, Amir Jan, Farida, Parvez, Sharafuddin and others

(ii) Whether all the accused excepting Ghulam Rasool had trespassed into the house of Mst. Amir Jan and caused injuries to Mehrun‑Nisa and others in furtherance of their common intention

(iii) Whether the above injuries were caused by them at the instigation of accused Ghulam Rasool alias Gama

(iv) What offence the accused or any one of them are guilty of

His findings on the three principal points was in the affirma tive and in consequence each of the appellants was convicted as previously detailed. There is overwhelming evidence with regard to the injuries received by each one of the prosecution witnesses Mst. Amir Jan, Mehrun‑Nisa, Mst. Bilquis, Mst. Farida, Mst. Fakhrun‑Nisa, Ismail son of Ali Bux, Parvez son of Abdul Rahman, Qamrun‑Nisa and Khawaja Nadim. Of these, Farida is a child of five years, Parvaz a boy of eight years and Khwaja Nadim a baby of about five months. Farida had a burn patch on her fore arm, Khawaja Nadim a few burn patches on check, right leg and skull. Almost the entire face of Parvez including the left eye ball had been seriously burnt as also his left leg, left shoulder and left arm the injuries resulting in a continuous watering of the left eye and of the lid being partly averted. All these Injuries have been medically certified to be injuries caused by acid burn, the injury on Parvez being described as resulting in a permanent disfiguration of his face. The injuries are described as follows; by Dr. Fazal Ahmad Alvi who initially examined the victims of the assault.

"Injuries on Farida:

1. Superficial patchy burn right fore‑arm 1'' x 1‑1/4" nature of injury was simple and in duration was fresh caused by acid as alleged.

Injuries on Khwaja Nadeem:

< [if supportLists]>1. Few very small acid burn patches on cheek, right leg, 1/8" x.1/8" was skull.

Injuries on Parvez:

1. Acid burn almost continuous whole of the face effect the left eye ball as well few small patches on the left leg and left shoulder and left upper arm. Left eye continuously watering and lid partly averted."

The cumulative result of the medical evidence is that grievous anti simple hurts were caused with acid and knife to these persons. In the circumstances, there is no doubt that the injuries on these injured and on those who gave evidence in Court come within the preview of sections 326 and 324 of the Pakistan Penal Code. There is also overwhelming evidence that this act was committed by the assailants who entered the house premises of Amir Jan and there was therefore clearly a trespass committed in respect of these premises.

5: On the material point for determination namely whether the appellants excepting Ghulam Rasool actually trespassed into the house of Amir Jan and caused injuries to her and the others in furtherance of their common intention and whether these injuries were caused in conspiracy with and at the instigation of the appellant Ghulam Rasool alias Gama there is as rightly pointed out by the trial Court overwhelming evidence both direct and circumstantial. I have been taken through the record and proceedings of these matters with the assistance of Mr. Kaikobad who has appeared for Ghulam Rasool alias Gama and the learned Public Prosecutor Mr. Manzoor Hussain. The circumstances devolving against these appellants are the oral testimony of the prosecution witnesses Mst. Amir Jan P. W. 1, Mst. Bilquis P. W. 2, Mst. Kaniza P. W. 3, Sharafuddin P. W. 4, Qamrunnisa P, W. S, Mehrunnisa P. W. 6, Fakhrunnisa P. W. 7 and Muhammad Ismail P. W. N. All these witnesses excepting Sharafuddin have acid and/or stab injuries on their persons. Bilquis in the context of the medical evidence had ten stab injuries on her person and one injury as a result of acid burn. Amir Jan had both acid burns as well as a stab injury. Besides, as already stated, three other injured children have not been examined, as they were too young to be put into the witness box. The motive is the demand for the hand of Mehrunnisa to Ghulam Rasool alias Gama, the refusal to do so and the consequent threat. The corroborative evidence is obtained through the testimony of Abdul Razzak shopkeeper from whom acid was purchased, the pointing out of the dagger by appellant Ghulam Nabi alias Mota in the presence of mashirs on the 14th December 196‑1 two days after the incident, the securing of articles like glasses and. others at the scene immediately following, the lodging of the F. I. R. in the presence of mashirs and the corroborative evidence of the acid burns on the three appellants Riaz, Bashir son of Fazal Din and Munira, and the judicial confessions of Riaz and Muhammad Bashir son of Feroz Din made on the 15th Decem ber and 19th of December respectively before Mr. Anwar Shaikh. The learned P. P. also contends that the additional factor to be taken into consideration in respect of Gama's subsequent conduct in that he deliberately caused himself to be arrested on the night of the incident by being allegedly in possession of one pill of Charas and the consequent report by 'the Excise inspector who arrested him namely Mr. Sakhi Muhammad and further the entries in the register of arrest and the letter written by the Excise Inspector to the Sub‑Inspector of the Risala Police Station asking that Gama be kept in custody and the endorsement on the original of the letter with a copy showing a variation in the times at which Gama was alleged to have been arrested a circumstance which has been discussed in sufficient detail by the learned Additional Sessions Judge who has come to a finding that these entries were of an extremely suspicious nature and that indeed Ghulam Rasool's arrest at the psychological moment was to set up a case of an alibi and was fore planned with the assistance of Sakhi Muhammad. He got himself arrested sod the entries made in the register of arrest as to the dates and times of arrest and custody support it. The defence is, therefore, false and I fully agree with the findings of the learned Additional Sessions Judge on this aspect of the case.

6. Reverting to the evidence against the rest of the appellants, there is no doubt in my mind that every single circumstance earlier detailed against the appellants has been established beyond reasonable doubt. The presence of the injured prosecution witnesses on account of the injuries on their persons cannot be denied. None of the prosecution witnesses has been shown to have any enmity with any of the appellants. Indeed, Chowdhry Hashmatullah's evidence Exh. 16 is very important. He states that he knew the complainant Amir Jan and the rest of the appellants for fifteen or sixteen years, that a month before the incident Ghulam Rasool alias Gama had asked him to tell Mehrunnisa and Fakhrunnisa in regard to Mehrunnisa's hand being given to him in marriage failing which Ghulam Rasool threatened revenge and destruc tion. He says that he delivered these messages. Gama repeated threats to him two or three days before the incident. He had informed Fakhrunnisa and the others. He is a Chowdhury of the community to which the prosecution witnesses belong. He has a cabin where be sells old clothes in the Bara Imam Lane of Napier Road. Nothing has been brought out why he should falsely depose against Ghulam Rasool and for that matter against the other appellants. Similarly, Abdul Razzak has stated that Riaz appellant purchased two and a half pounds of sulphuric acid from his shop of Chemicals in Thokar Gali, that Riaz had brought a bottle with himself for the purpose and that two days after the crime Riaz had led the Police party to his shop and pointed it out to them. He identifies appellant Riaz. The other connecting circumstance is as already stated the acid burns on Riaz, Bashir son of Fazal Din and Munira. The judicial confessions although retracted have been duly proved in the trial Court. Except for stating that they had been given on account of fear of the Police neither appellant Riaz nor Muhammad Bashir son of Feroz Din had been able to show why as rightly held by the learned Additional Sessions Judge, these confessions have not been voluntarily given and did not contain true statements of facts. The difference as already stated has been held to be false.

7. There is some confession with regard to the implication of appellant Muhammad Bashir son of Feroz Din as his name does not find mention in the F. 1. R. and although the name of Muhammad Bashir alias Bashira has been mentioned in the F. I. R. The learned Additional Sessions Judge has explained the omission of the name of Muhammad Bashir son of Feroz Din from the F. I. R. as being due to the fact that since Muhammad Bishir alias Bashira had been already mentioned Muhammad Bashir's name as such was not recorded by the officer who registered the F. I. R as being a mere repetition. This appellant was later pointed out by Mst. Amir Jan after her additional statement was recorded by the Investigating Officer on the 14th of December 1964.

8. The details of the incident have been fully given in the F. I. R. lodged without any delay and the evidence supporting the prosecution case is entirely independent and in its corroborative aspect.

9. Mr. Kaikobad in urging the case .of Ghulam Rasool alias Gama has urged his appeal on the ground that the only evidence against this appellant consists of confessions of appellant Muhammad Riaz and Muhammad Bashir son of Feroz Din which judicial confessions have been retracted. He urges that they being retracted judicial confessions need to be supported by independent evidence and that evidence is lacking here. He further urges that under section 30 of the Evidence Act these confessions can only be considered and not accepted as substantive evidence. There is no substance in this argument for there is the overriding and weighty evidence of Chowdhury Hashmatullah with regard to the motive in this case. This motive by itself indicates the reason why Ghulam Rasool alias Gama formed a conspiracy with the, rest of the appellant causing the crime to be committed by them whilst he himself kept in the background. Now, this motive, I am convinced, coupled with the circumstances which corroborate the two confessions is sufficient for the purpose of consideration against the appellant Ghulam Rasool alias Gama. This is not a case where the appellant is being con victed on the sole basis of a retracted confession of a co‑accused. The confession even though it has been held and quite rightly to be voluntary and contains the truth of the matter and as held in logan Bibi v. The State P L D 1960 S C 313 if such other circumstances and eventu alities show as it has been in the present case that a confession voluntarily made than the fact that the maker of the confession does not adhere to it would by itself have no effect upon the evidence as to whether the confession is voluntary and, if so, where it was true. In Amirali v. The State P L D 1960 Kar. 753 a Division Bench of this Court observed that a retracted confession is not by itself sufficient for convicting an accused person unless corroborated by independent evidence and the confession of a co‑accused can be used in evidence against another co‑accused under section 30 of the Evidence Act only. Under this section, the confession of the co‑accused must necessarily be a confession relating to the same offence and after the confession relating to the same offence has been proved against the confessing accused all that the Court is entitled to do is to take it into consideration. This is precisely what has been done in the present case and the evidence to that effect is of Chowdhury Hasmatullah and of several prosecution witnesses a to the incident who themselves were injured in the course of it. I have, therefore, no hesitation in holding that the offences with which each one of the appellants were charged were brought home against them and that all the appellants excepting Ghulam Rasool alias Gama were rightly convicted under sections 452, 326 and 324/34, P. P. C. The Additional Sessions Judge failed to convict each of the appellants on each count. That is, however, not an illegality. This Court can, therefore, impose sentences under seclions‑452 and 324, P. P. C. against these appellants and I do so convicting each of them to two years' R. I. under section 452 and to two years under section 324, P. P. C. maintaining the conviction under section 326, P. P. C. but subject to my observa tions later in regard to the enhancement of the sentence with regard to this offence. Ghulam Rasool also is established to have instigated and abetted, the other five appellants to commit this crime. It was dons under a prepared plan in consequence of his desire to wreak vengeance against those who had spurned his offer. His conviction, therefore, under sections 452, 326 and 324/34 of the p. P. C. are confirmed with the same sentences to be inflicted on him. He will undergo the same sentences as his other five co‑accused under sections 452 and 324/ 114, P. P. C. There is no doubt that Ghulam Rasool alias Gama was the principal offender in this case and that he was the brain of the entire manner of the assault using the five appellants as his henchmen who carried out his plan.

10. The next aspect is the application by the State for the enhancement of the sentences of the six appellants in view of the fact that the sentences inflicted under section 326, P. P. C. were inadequate. Apart from the description of injuries on those of the injured prosecution witnesses as adduced to by Dr. Fazal Ahmad Alvi which have been detailed earlier indicating the ferocity and the determination with which the assault was committed on Mst. Amir Jan and her party and the fact that two of the women witnesses and a child have been permanently disfigured and indeed deformed for life. The effect of these injuries on each of them was personally seen and noted by the learned Additional Sessions Judge who has described them as being of a ghastly nature. The barbarism and impunity with which they were caused and its result on the future lives of the injured is frightening to visualise. In these circumstances the sentence of ten years R. I inflicted on each one of the appellants is entirely inadequate to meet the grave nature of the crime committed by them which fully justifies the imposition of maximum sentences under section 326, P. P. C. on each one of the appellants. Apart from the nature of injuries there is here an open and flagrant disregard for the law and defiance of the consequences that may ensue, calling for exemplary punishment;.

I, therefore, allow the application of the State and enhance the sentences of each one of the appellant's including Ghulam Ras6ol alias Gama from one of ten years R. I. to R. I. for transportation for life namely fourteen years, to be fully undergone by each of them. The revision application and the appeals are disposed of in these terms.

Sentences enhanced

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