Find a Lawyer

Criminal Appeal No. J‑177 of 1967/Confirmation Case No. 47 of 1947 decided on 30th January 1968.

S. 164‑Confession---- Accused actually arrested on 28‑1‑1966 but, for unknown reasons, his arrest not shown in investigation papers until 30‑1‑1966 ----Confession recorded on 1‑2‑1966 (later retracted in trial Court) Held, cannot be regarded as voluntary, in circumstances of case.

Hamzo v. The State P L D 1960 Kar. 817 ; Fazlur Rehman v. The State P L D 1960 Pesh. 74 and Mst. Maryam v. The State P L D 1961 Kar. 731 ref.

Muhammad Ramzan v. The State P L D 1961 Lah. 167 distinguished.

--

Murder--‑Evidence‑--Recovery of blood‑stained hatchet and clothes at instance of accused and evidenced by reliable prosecution witness‑‑Accused merely denying recoveries and saying nothing against veracity of witness‑--Recoveries standing fully proved and providing corroboration to eye‑witness account‑Conviction and sentence of death maintained.

M. H. Junejo for Appellant.

Muhammad Haleem, A. A. G. for the State.

Dates of hearing: 19th, 23rd and 24th January 1968.

Muharram son of Mahmood Balal and Haroon son of Ibrahim Balal have been convicted under section 302 read with section 34 of the Pakistan Penal Code by Mr. Muhammad Ishtiaq Hussain, II‑Additional Sessions Judge at Hyderabad for causing the death of Dur Muhammad son of Muhammad Ramzan (P. W. 2) on the 27th of January 1966 in the area of Deh Gohat, Taluka Hala, District Hyderabad. Muharram has been sentenced to death, whereas Haroon has been awarded transportation for life. The convicts have appealed and the case is also before us for confirmation of the death sentence.

2. The parties and the witnesses appear to be related to each other. The appellant Haroon is described by Muhammad Ramzan (P. W. 2) as being the Sala of his deceased son Dur Muhammad. He is also the Sala of Ghulam Hussain (P. W. 3) Haroon's paternal‑aunt was the paternal‑grandmother of Majnoon Balal, who is the source of mischief in this case, as will be described presently. The appellant Muharram is the son of Majnoon Balal's sister. Ghulam Hussain (P. W. 3) and Pandhi (P. W. 4), who have appeared as eye‑witnesses of the occurrence, are cousins of the deceased. Wadero Jamal Khan (D. W. 1), who was originally cited as a prosecution witness but was later on given up and, therefore, produced in defence, is the Nek Mard of the Balal Tribe and was once married to the sister of Muhammad Ramzan (P. W. 2), and was thus an uncle to the deceased. The Mashir of the Vardat Maula Bakhsh (P. W. 7) is Jamal Khan's son.

3. About a month before the occurrence Muhammad Ramzan's bullock was stolen, and the tracks led to an abandoned canal on the east of the village. The deceased Dur Muhammad assisted by his cousin Ghulam Hussain (P. W. 3) and two Machhis, namely, Muhammad Saleh (P. W. 5) and Ibrahim, who had followed the tracks of the stolen bullock, hit themselves, waiting for the thief to come and take away the bullock. At about midnight, Majnoon Balal came there and untied the bullock, thus showing that he was the thief. He was caught by the trackers and produced before the Nek Mard Jamal Khan (D. W. 1), along with the stolen bullock. At that time the Nek Mard was attending a marriage of Babras. He advised Muhammad Ramzan to report the matter to the police, but the complainant party represented to him that they were too poor to bear the expenses of litigation, whereupon Rais Jamal Khan decided that as Majnoon Balal bad committed the theft of a bullock belonging to a member of their community his punish ment was that his face be blackened and he be made to ride a donkey and taken throughout the marriage procession, so that it might serve as a lesson to him for the future. The punishment was carried out, thus causing disgrace and chagrin to Majnoon Balal and his other relatives including the two appellants. The appellants and the other relatives of the Majnoon Balal threatened Muhammad Ramzan with dire consequences on account of the disgrace caused to them by Muhammad Ramzan and the deceased.

4. On the fateful day, i.e. the 27th of January 1966, the deceased our Muhammad had gone to his lands to take his turn of water which was to start at 3‑00 p.m. and to continue until 8‑00 p.m. at which time the turn of Pandhi (P. W. 4) was to start. At about 7‑30 p.m., Muhammad Ramzan heard cries from the direction of his lands, upon which he proceeded there in the company of Dhingana and Ismail. On reaching his lands he saw his son Dur Muhammad lying dead by the side of the watercourse and prosecution witnesses Ghulam Hussain and Pandhi present at the spot. They informed him that the two appellants Muharram and Haroon had killed Dur Muhammad with hatchets, and that at that time Majnoon Balal and his relation Dholyo were also sitting at a distance of about one field towards the east. In the first information report made by Muhammad Ramzan at 1‑00 a.m. the next morning at Police Station Saidabad at a distance of three miles, Majnoon Balal, Photo Balal, Dholyo, Karam, Muharram and Haroon were named as the assailants, but in his statement at the trial he attributed the actual assault only to the present appellants. The fast information report was recorded by S. H. O. Muhammad Usman (P. W. 9).

5. The two appellants were arrested on the 30th of January 1966 and at the instance of appellant Muharram a blood‑stained hatchet was recovered from a heap of chaff lying in his house, and from a bedding blood‑stained Shalwar, shirt, towel and Ajrak were taken into possession. The recovery was effected by the investigating officer and witnessed by Haji Mehar (P. W. 8) and one other person named Manak who has, however, not been produced as a witness at the trial. The relevant Mashirnama is Exh. 24. The report of the Chemical Examiner shows that there was human blood on the hatchet, but the‑ origin of the blood found on the clothes could not be ascertained due to disintegration.

6. The appellant Muharram also offered to make a confession and for this purpose he was produced before the Resident Magistrate of Hala, Mr. Muhammad Chanecar P. W. 10 on the Ist of February 1966, and the confession recorded by this officer is Exh. 34. According to this statement Muharram gave the following account of the incident:‑

"About two months back, Majnoon who is my real maternal uncle was going to his village after taking meal from the village of Babras near deceased Dur Muhammad, when Dur Muhammad, Ghulam Hussain and other Mdchhis caught hold of Majnoon and produced him before Wadero Jamal Khan, who beat Majnoon and blackened his face, put a garland of shoes around his neck, made him ride on a donkey and took out his procession in the marriage gathering and there after left him. I had felt for Majnoon's such treatment. We were poor and, therefore, remained quiet. Dur Muhammad used to jest on us. He used to tell me and Haroon that we were catamite and are being fucked. We felt provocation (Ghairat). Apart from this, Dur Muhammad had an evil eye on Mst. Dayani wife of Haroon and she had reported to her husband Haroon. Haroon had told me that was Zulim (cruelty) with him as Dur Muhammad was strong man and, therefore, he and myself together should kill trim.

About five days back on Thursday, at about noon‑time, Haroon came to my village. I told him that I shall come to Dur Muhammad's land after sunset as Haroon informed me that today was the turn of water of Dur Muhammad and he will be on his lands. I took up my hatchet and went on Dur Muhammad's lands. Haroon also came there. The sun had set down. We saw Dur Muhammad in the field. First I gave him a hatchet blow. It was time of haste. I don't ‑ know whether it struck him on his head or neck. After that Haroon also gave him a hatchet blow. Dur Muhammad fell down. We then ran away. I went to my village. Haroon went to his village. Nek Mard sent for us. I had produced the hatchet before police from my house"

7. The appellant Haroon was also produced before the Magistrate for making a confession, but he refused to do so, nor did he lead to the recovery of any incriminating articles.

8. The autopsy on the body of the deceased was conducted by Dr. Muhammad Hasham (P. W. 3) who was then Medical Officer, Hala. He found the following external injuries on the deceased:‑‑

(1) An incised wound, 10" x 1 " x 4", extending from the in front of the right ear, downwards and forwards to 1" below the lobs of the left ear, cutting the underlying right ramous of the mandible and front of the mandible, left side of the neck and its vessels, trachea and oesophagus down to the vertebral column.

(2) An incised wound, 3" x " x ", on the front of the right shoulder.

(3) An incised wound, 3 " x " x ", on the back of the neck, cutting the underlying muscles of the neck and 6th cervical vertebra.

On internal examination he found that the 6th cervical vertebra, larynx and traches, blood vessels of the neck and oesophagus were cut at the cervical region, corresponding to injury No. 1. In his opinion death was due to shock and haemorrhage as a result of hatchet injuries, and that death was instantaneous. He added that injury No. 1 was sufficient in the ordinary course of nature to cause death.

9. Both the appellants pleaded not guilty at the trial and denied all the prosecution allegations against them. They even repudiated their relationship with Majnoon Balal. Muharram retracted from his judicial confession Exh. 34 by stating that it was made under coercion and pressure from the police who wanted to disgrace his womenfolk. He asserted that he had been falsely implicated as he was cultivating land in front of the houses of the witnesses against their wishes and had refused to give it up on their demand.

10. The appellant Haroon also adopted a similar line and added that he had been falsely implicated due to matrimonial affairs as the daughter of P. W. Ghulam Hussain was first promised to his nephew Soomar in marriage, but then he changed his mind and gave her to the son of his maternal uncle Dhingano.

11. As already stated, Nek Mard Jamal Khan of the Balal Tribe appeared as defence witness. He admitted that the deceased Dur Muhammad had reported to him about the theft, of his bullock, when he was attending the marriage of Babras, but he denied that he effected a private settlement by prescribing any punishment for Majoon Balal. He further deposed that he had been informed of the murder of Dur Muhammad by his father Ramzan at about 10‑00 p .m. and at that time Ramzan had not told him that anybody had witnessed the incident. In cross‑examination the suggestion made to him by the prosecu tion was that he was making his statement to save the accused persons who were his relatives, but he did not accept the same.

12. It will be seen that the case against the appellant Haroon rests only on ocular testimony, whereas against Muharram the prosecution relies pot only on oral evidence but on corrobora tion furnished by the judicial confession and the recovery of the weapon of offence and blood‑stained clothes. We shall first take up the case of the appellant Haroon.

13. In the first information report Muhammad Ramzan named six persons as the assailants, on the authority of informa tions given to him by the eye‑witnesses Ghulam Hussain and Pandhi, and Haroon was credited with carrying a lathi. When Ramzan appeared as a witness at the trial he stated that Haroon also was carrying a hatchet like Muharram, and he omitted the names of the other four persons mentioned by him in the first information report. Ghulam Hussain (P. W. 3) ascribed hatchet blows to Haroon at the trial, but he was confronted with his previous statement recorded under section 164 of the Criminal Procedure Code by the Resident Magistrate, Hala, on the 10th of February 1966 in which he had attributed hatchet blows only to the appellant Muharram and had not even mentioned the presence of Haroon near the scene of offence. That statement was recorded only a short time after the incident and its benefit has to be given to Haroon. Similar is the case with Pandhi (P. W. 4). He was also confronted with his previous statement recorded by the Resident Magistrate, Hala, on the same date as that of Ghulam Hussain, and it was found that in the previous statement the only part attributed to Haroon was "standing at a distance". It was added that his land was also near. The hatchet blows were attributed solely to the appellant Muharram. It would appear that in their previous statements both the eye witnesses had not at all implicated the appellant Haroon as being the assailant, and, therefore, their statements at the trial were clearly in the nature of an improvement as against Haroon. The learned Assistant Advocate‑General frankly conceded that in view of the previous statements of the two eye‑witnesses he was not in a position to support the conviction recorded against Haroon.

14. Coming now to the case of the appellant Muharram, we find that he has been consistently named as the person who inflicted hatchet blows on the deceased. The two eye witnesses, namely, Ghulam Hussain and Pandhi, have absolutely no ulterior motive to implicate him falsely. No contradictions of any consequence have been brought out in their cross- examination which might throw a doubt on the veracity of their statements. However, it, was submitted by Mr. Muhammad Hayat Junejo, the learned counsel for this appellant, that the evidence of these witnesses should not be believed, firstly for the reason that they were chance witnesses and secondly for the reason that they had falsely implicated six persons while giving information‑ to the father of the deceased, it was contended by the learned Counsel that the delay In the first information report showed that the crime had in fact not bees witnessed by anyone and subsequently a false story was fabricated to involve the present appellants and others. In support of this last contention, Mr. Junejo placed reliance an the testimony of Jamal Khan (I), W. 1).

15. It is true that in the first information report the father of the deceased named six persons as the assailants, but it is clear to us that the testimony of the eye‑witnesses cannot be discredited on that account, as at no stage have they given the version put forward by Muhammad Ramzan in the first information report; on the contrary, their earliest version appears to mention only the present two appellants, the active part, having been assigned only to Muharram. The witnesses have given a reasonable explanation of the reasons for their presence at or near the spot. Ghulam Hussain had his turn of water from 9 am, to 3 p.m. on that day, followed by that of the deceased from 3 p.m. to 8 p.m., and then Pandhi's turn was to commence at 8 P.M. Ghulam Hussain has stated that after finishing his turn of water he had gone to his house but he returned at 5 p.m. to see that there was no leakage of water on his lands. There is nothing improbable in such a visit by a landowner or cultivator who has recently finished irrigating his fields. As Pandhi's turn was to commence at 8 p.m., he would be expected to come on his lands half an hour or so earlier than the appointed time. The lands of the witnesses are in the vicinity of the lands of the deceased. We cannot, therefore, agree that Ghulam Hussain and Pandhi are mere chance witnesses and could not have witnessed the crime.

16. The report was made at the police station at 1‑00 a.m. during the night, after Ramzan had first gone to Nek Mard Jamal Khan and then travelled three miles to the police station. The time taken by Ramzan to reach the police station does not appear to be unreasonable, considering that he was an elderly man who must have been shaken by the murder of his son and would require some time to travel to the house of the Nek Mard and then to the police station. If indeed Ghulam Hussain and Pandhi had not witnessed the crime, it is difficult to appreciate how they could have become parties to false implication of their own relatives against whom they had no previous ill‑will or enmity. It seems to us that the incident must have been seen by Ghulam Hussain and Pandhi as described by them. It is true that Ramzan named four other persons as well in the first information report, but the responsibility for that must remain with Ramzan alone, as already stated.

17. It is correct that Jamal Khan has come forward to depose that when Ramzan came to him at about 10 p.m. he did not inform him that the crime had been witnessed by Ghulam Hussain and Pandhi or for the matter of that by anyone else, but we are of the view that no reliance can be placed on Jamal Khan's evidence in this behalf. He admits in the earlier part of hit statement that the theft of the bullock of the deceased was reported to him at the marriage of the Babras and that Majnoon Balal was named as the thief, but he denies having effected any private settlement or imposed any punishment of the nature described by the prosecution. It seems to us that either he became apprehensive owing to the fact that he had no authority to impose any such punishment on his own on Majnoon Balal, or the accused party may have persuaded him to remain neutral in this matter. Whatever the reason for his refusing to support the prosecution version, it is clear that his negative testimony regarding the conduct of Ramzan at 10 p.m., after the discovery of the murder, cannot negative the direct and straightforward account of the incident given by Pandhi and Ghulam Hussain. It is significant that Jamal Khan does not attribute any contra dictory story to be two eye‑witnesses. We consider, therefore, that no reason has been brought out on the record for not accepting the eye‑witness account of the incident as given by Ghulam Hussain and Nadhi, in which they folly implicate the appellant Muharram as the person who Inflicted fatal hatchet blows on the deceased Dur Muhammad.

18. We now proceed to examine whether any corroboration is available from the retracted judicial confession and the recoveries made at the instance of this appellant. As regards the confession, it was submitted by Mr. Muhammad Hayat Junejo that it could not be regarded as voluntary for the reason that the appellant had been arrested on the morning of the 28th of January 1966 but for dishonest and improper reasons his arrest was not shown in the investigation papers until the 30th of January 1966, with the result that the confession made by him on the 1^st of February 1966 roust be regarded, in the circumstances, as having been extorted under pressure as alleged by him. I support of this confession Mr. Junejo has referred us to the previous statements of Ramzan and Pandhi, with which the were duly confronted, as well as the admission made by P. W. Maula Bakhsh in cross‑examination that the accused had been arrested at 5 a.m. on the 28th of January 1966, i.e. immediately on the arrival of the police at the spot. The benefit of these admissions has to go to the accused with the result that we must agree with the learned counsel that it is apparent from the record that the two appellants had been put under arrest on the morning of the 28th of January 1966, although their arrest was not shown in the papers until the 30th of January 1966. There is no explanation from the side of the prosecution as to why this was done and, therefore, it would be reasonable to infer that their arrest was not shown until such time as they agreed to make a confession, and it was made to appear that the readiness to make a confession was made within twenty‑four hours of their arrest. It is true that Haroon refused to make a confession when produced before the Magistrate, but the significant fact in this context is not his refusal to confess before the Magistrate but the fact that he must have expressed his willingness to confess as otherwise he would not have been produced before the Magistrate. This is not a case where the police did not have evidence against the two appellants until the 30th of January 1966, as the two appellants had been clearly named by the eye witnesses at the earliest and, therefore, there was indeed no justification for not showing them as having been formally arrested from the very first day. Their case was distinguishable from that of the other persons who had been named by Ramzan in the first information report, as against those persons no direct evidence was forthcoming. There is thus considerable merit in the submission made by Mr. Muhammad Hayat Junejo that in these circumstances the confession made by the appellant Muharram cannot be regarded as voluntary, in view of the dictum in Hamzo v. The State (P L D 1960 Kar. 817), Fazal-ur-Rehman v. The State (P L D 1960 Pesh. 74) and Mat. Maryam v. The State (P L D 1961 Kar. 73). The learned Assistant Advocate -General referred to Muhammad Ramzan v. The State (P L D 1961 Lah. 167), but the facts of that case are clearly distinguishable.

19. Another circumstance having a bearing on the nature of the confession is brought out in a statement made by Mashir Mauls Dakhsh (P, W. 6) to the effect that when he reached the spot on the morning of the 28th of January 1966, he saw that the womenfolk of the accused persons were also present "on the calling of the police". It is possible, therefore, that there is some truth in the allegation made by Muharram that he confessed because of the fact that the police were bent upon disgracing his womenfolk. It was submitted by Mr. Haleem that this Maula Bakhsh is the son of Jamal Khan who has refused to support the prosecution. That may be so, but Maula Bakhsh has appeared as a prosecution witness and nothing has been brought out to show that he was not worthy of credit simply, owing to the conduct of his father in this case.

20. For the reasons given above, we are of the view that no reliance can be placed on the retracted judicial confession made by the appellant Muharram as there are circumstances to indicate that it may not be a voluntary one.

21. The recovery of the blood‑stained hatchet and blood-stained clothes at the pointing out of the appellant Muharram however, remains: The hatchet has been found to be stained with human blood, although the origin of the blood on the clothes could not be ascertained as the clothes had been washed .and the blood had disintegrated. The recoveries are evidenced by Haji, Mehar (P. W. 8) and nothing has been said against the veracity of this witness. The appellant Muharram has merely denied these recoveries. We are of the view that the recoveries stand fully proved on the record and provide corroboration to the eye witness account given by Pandhi and Ghulam Hussain. In our view, the evidentiary value of these recoveries is not affected by the fact that the formal arrest of the appellant Muharram was not shown in the police papers from the 28th of January 1966. There is no reason to hold that the investigating officer and Haji Mehar (P. W. 8) dishonestly colluded to show false recovery of a hatchet against the appellant Muharram and then also put human blood on it before sending it for chemical examination.

22. For the foregoing reasons, we have come to the conclusion that the appeal of Haroon must be allowed and accordingly his sentence and conviction are set aside and he is acquitted of the charge of murder. He shall be released forthwith, if not required to be detained in any other case. The guilt of the appellant Muharram stands fully proved and accordingly we would maintain his conviction and sentence of death, there, being no extenuating circumstances justifying a departure from the normal penalty for murder. His appeal is, there fore, dismissed and the sentence of death imposed upon him is confirmed.

Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.