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Criminal Appeal No. K-8 of 1967, decided on 13h February 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 8th June 1967, in Confirmation Case No. 73 of 1966/Criminal Appeal No. 310 of 1966). .
S. 302-Conviction-Question whether charge -of murder had been brought home to accused beyond reasonable doubt-Special Leave to Appeal granted by Supreme Court.
, S 302-Evidence of accomplice-Can form basis for conviction of another accomplice if cor roborated by independent evidence-Evidence Act (I of 1872), S.133.
S. 164-Confession, retracted-Itself being tainted cannot corroborate: other tainted evidence such as extra-judicial confession.
, Sa. 302 & 201-Accused convicted and sentenced to death under S. 302-Conviction altered to one under S. 201 and sentence reduced to 7 year. R. I. by Supreme Court.
Rustam J. E. Kaikobad, Advocate Supreme Court for Appellant.
Akhtar Ahmad Kazi, Addl. A: G. West Pakistan (Jamaluddin H. Ahmad, Advocate Supreme Court with him) instructed by Ijaz Ali Sheikh, Attorney for the State.
Date of hearing: 13th February 1968.
--The appellant was tried on a charge under section 302 of the Pakistan Penal Code for the murder of his cousin, Fazal Din, by the First Additional Sessions Judge, Hyderabad who found him guilty, convicted him and sentenced him to death. His conviction and sentence have also been confirmed, on appeal and reference, by a Division Bench of the High Court of West Pakistan at Karachi.
Leave to appeal was granted to him by this Court on hi petition from jail, to examine the following points:
(1) Whether the charge under section 302, P: P. C. had been brought home to the petitioner beyond reasonable doubt and
(2) Whether the offence would really fall under section 201, P. C.
The prosecution case against the appellant was that he had come over with his maternal cousin, the deceased Fazal Din, from Chak No. 51, Montgomery District in Punjab, to settle in Nabi Bakhsh Punjabi Village in Taluka Math, Sind, some 8 or 9 months before the incident. The deceased Fazal Din had brought his wife Mst. Karima Bibi, his daughter Ulfat, his son Sadiq and three other children along with him but the appellant, who was married to a sister of Akbar Ali (P. W. 4) had left his wife behind. He, therefore, took up residence with his cousin in the rented house of one, Rehmat All and jointly cultivated the lands obtained by Fazal Din at this village. His cousin's wife also cooked for him.-
Thereafter, Fazal Din, it is alleged, had taken a loan of Rs. 1,400 from the appellant but as he was not repaying the same, there was a dispute and altercation over this between them. The appellant insisted upon repayment but the deceased abused him saying that the appellant was his son, as the former's mother has had illicit connections with him. This infuriated the appellant, who took it as an insult which bad to be avenged. Accordingly, on the following night, which happened to be the night between the 8th/9th of the holy month of Ramazan, the appellant stole into the room of the doorless chapper, where the deceased was sleeping with his wife and children, at about midnight and killed the deceased by striking him blows with a spade on the head. The appellant, it is said, used to sleep in - the outer courtyard.
No one noticed him enter but the wife of the deceased stated that she was awakened by the cries of her husband and on waking up saw the appellant standing with a spade, over the cot of the deceased who had already breathed his last. Her son Sadiq also claimed that he got up on hearing his father cry out that he was being killed. The girl Ulfat only got upon hearing the commotion raised by her mother and brother. No one else from the neighbourhood was, however, attracted by their cries, for, it is said that the nearest houses are 50 or 60 paces away. They were then threatened by the appellant that if they did not keep quiet they too would be killed in the same manner. So out of fear they stopped their weeping and wailing.
The appellant then, it is said, in their presence dug a pit under the cot of the deceased, in the same room, and buried him therein, after putting the dead body and the Kurta and Dhoti in the wearing of the deceased into a gunny bag. The black Chappals of the deceased were also thrown in the pit, which was then filled up with earth. They did not disclose these facts to any one because the appellant threatened that if any one of them dared to disclose anything to any one, they too would meet the same fate. In fact they were so terrified that they actually gave out that Fazal Din had gone to his native village on some business and continued to live in the same house until the crops were harvested. Then they all left, along with the appel lant, for Chak No. 51 in Montgomery District, which was their original abode.
After they had been residing there for about 3 or 4 months, cite appellant alone returned to Nabi Bakhsh Punjabi village leaving Mst. Karima and her children at C1ak No. 51, Montgomery. On his return to the village he approached Akbar Ali, another maternal cousin of his, to get him some land as he did not wish to cultivate the old lands any more. Akbar Ali introduced him to Syed Alam Shah, his own Zamindar, who gave the appellant also some land and he started cultivating it. During this time he parried the enquiries of Akbar Ali regarding the whereabouts of the deceased by feigning ignorance.
About a month later, Akbar Ali happened to go to Punjab in connection with the marriage of his brother-in-law, but while he was there he started making enquiries about the deceased Fazal Din. In the course of these enquiries he also approached Mst. Karima Bibi. At first she kept quiet, but when pressed, started weeping and ultimately disclosed that he had been killed by the appellant while they were living in Nabi Bakhsh Punjabi Village She told him as to how the murder had been committed with a spade and how the appellant had buried the dead body in a gunny bag, in a pit inside the same room in which they lived along with the clothes in his wearing and his chappals. She also told him that they had been prevented from raising cries due to the threats of the appellant.
After getting this information, Akbar Ali returned to Sind and informed his Zamindar, Alam Shah, of what he had learn The latter sent him to the land where the appellant wax working and asked him to wait till he joined him there the next morning. The next morning, when Alam Shah arrived, he charged the appellant with having killed the deceased, Fazal Din. The appellant then broke down and admitted his guilt, in the presence of Akbar Ali, the Zamindar and one Seth Utam Chand (not examined). The Zamindar then tied up the appellant and took him to Tando Ghulam Ali Police Station where Akbar Ali lodged the first information report, at about 4 p.m. of the 13th of September 1965. The appellant was immediately placed under arrest and the investigation was commenced.
During the course of investigation the appellant offered to indicate the exact place of burial of the dead body and led the police to the room, in the house of Rahmat Ali, where he pointed out the exact spot which was not, however, marked. On the next day, he again led the police to the garden, adjoining that house and dug out the spade that he had buried there. The spade was taken into possession under a Mashirnama but it was not sent for chemical, examination as there were no blood stains on it. The appellant was then taken to Math, for having his confession recorded. He was produced before the Magistrate at about 1 pm, but the Magistrate recorded his confession at about 2.30 p.m. and remanded him to judicial custody.
Permission was then obtained from the District Magistrate, Hyderabad, for exhuming the dead body and on the 15th September 1965, the dead body was exhumed from the place pointed out by the appellant. It was completely decomposed so far so, that the bones had become exposed and separated from the joints. Three injuries were, however, discovered on the skull namely; (i) fracture of left and right parietal bones posteriorly and on the sides posterior to the cars; (ii) a piece of left parietal bone above cleft car was separated from suture below (temporal side) and was fractured; (iii) a piece of right parietal bone above right ear was also found separated from suture below (on temporal side) and fractured. All other organs were completely decomposed or so putrified that no identification was possible. Along with the body a shirt of khaki colour, a loin clothe, a gunny bag and a pair of black rubber slippers were also recovered from the pit. In this state of the body, the doctor could not even say whether the injuries weir ante-mortem or post-mortem, but still hazarded the opinion that death "could be due to shock and haemorrhage consequent upon skull injuries", if they were ante-mortem. Furthermore, he was of the opinion that the injuries might have been caused by a hard blunt substance like the back of a hatchet or spade but with such injuries the injured person would be likely to loose consciousness almost immediately.
In the judicial confession, the appellant appears to have admitted that he had killed the deceased for the reason and In the manner suggested by the prosecution with the difference that he placed the time of the incident at '3 a.m. and mentioned that Mst. Karima and her daughter Ulfat got up on hearing the cries of the deceased. He did not mention about the son Sadiq getting up nor did he admit making any extra-judicial confession before Alam Shah. According to this confession he developed illicit intimacy with Mst. Karima after the incident.
Upon this case the appellant was sent up for trial but both in the committing Court as well as the Court of Session he retracted from his confessions and pleaded false implication. His case was theft it was Akbar Ali who had illicit connections with NAI. Karima and had actually married her since. Akbar Ali's nephew had also since been married to Ulfat, the daughter of the deceased although the latter had in his lifetime refused to dive his daughter to Akbar Ali's nephew. In the committing Court he altogether denied making the judicial confession but in the trial Court stated that he had been made to appear before some persons who posed themselves to be Magistrates, after severe beating by Akbar Ali, Alam Shah and the police. He expressed his innocence before them too but he was again beaten up so he does not recollect what he stated.
His suggestion at the trial, however, was that it was Akbar Ali who had murdered the deceased because be wanted Mst. Karima for himself and fist. Ulfat for his nephew and had falsely implicated him because he had found this out from Mst. Karima and charged Akbar Ali for the murder which he then admitted. Later he arranged with Alam Shah to have the appellant arrested and produced before the police.
The only ocular evidence adduced by the prosecution against the appellant is that of Mst. Karima and her son, Sadiq. The daughter, Ulfat, was not examined. Mst. Karima, of course, denied that she had any illicit intimacy with the appellant, either before or after the death of her husband, but described in detail the incident, which occurred in her house. She admitted that she had falsely told Akbar Ali, when he first enquired about Fazal Din, that the latter had gone to Punjab side and that at Chak No. 51 also, she had not disclosed to any one about the murder of her husband, until Akbar Ali came there and pressed her. The only explanation that she could offer for her unnatural conduct was that she was afraid of the appellant who had been threatening to kill her if she disclosed anything to any body. This does not, however, explain why she did not make the disclosure after the departure of the appellant for Sind. There was no reason for her then to protect the appellant.
Furthermore, it has to be pointed out that according to her version Mst. Ulfat, who was then 15, did not get up on hearing the cries of her father but it was the son who got upon hearing what she describes to be a "faint cry". Again, according to her the spade with which her husband was killed, was buried is the same ditch along with the dead body. She claimed that she had seen this with her own eyes.
The defence suggestion to her was that she and Akbar Ali had joined hands in killing Fazal Din, as he had refused to give the hand of her daughter, Ulfat, in marriage to Akbar Ali's nephew, Ramzan. She denied this as also denied that there was any illicit intimacy between her and Akbar Ali. She also denied that she had re-married since but admitted that Ulfat had in fact been married to Ramzan after the death of her father.
Her son, Sadiq, corroborated her version and also admitted that he too did not disclose to any one as to what had happened to his father. He too, like his mother, identified the chappal, shirt and loin cloth, recovered from the pit, as those belonging to his father. His explanation for not disclosing about this incident to anyone for such a long time was also the same as that given by his mother, namely, that the appellant had threatened to kill him if he did so. According to him too, the spade was actually taken out from the ditch when the dead body was exhumed. He too confirmed that when his father cried out only he and his mother got up. It appears that this witness too has since been married to the niece of Akbar Ali.
Apart from these two, Akbar Ali, the informant, deposed about his enquiries and the confession made by the appellant before him and Alam Shah, the local Zamindar. It was suggested to him, in cross-examination, that it was he who had, in conspiracy with Mst. Karima, murdered the deceased both because he had illicit connection with her and because the deceased had refused to give the hand of his daughter, Ulfat, in marriage to his nephew. It was further suggested to him that even before the appellant was arrested, he knew where the dead body was buried, but he denied this and stated that Mst. Karima had merely told him that it was buried in the room. She had not given the exact location of the pit and it was the appellant who pointed this out.
It has to be pointed out here that there is a material dis crepancy between the story given by him in Court and his version in the First Information Report. In this he had stated that after learning about the incident from Mst. Karima he returned to Sind and first enquired from the appellant. When he admitted his guilt then he was taken to Alam Shah at Matli.
Alam Shah Zamindar corroborated Akbar Ali about the extra judicial confession, alleged to have been made by the appellant, but according to him, the appellant told him that he had killed Fazal Din because he wanted, to keep Fazal Din's wife with him. This was not stated by Akbar Ali - in Court though he had mentioned this in the First Information Report. There are also some other variations in the story given by him. According to him, Akbar Ali and the appellant came to him together at his Kotha in the land, when he went there in the morning of the 13th September 1965 and it was there that for the first time he came to know about the murder. But Akbar Ali's version in Court was that after returning from Montgomery, he had first informed the Zamindar about what Mst. Karima had told him and then the Zamindar had arranged that he should not say anything to the appellant until he arrived on the land, where the appellant was working, on the next day.
This together with the judicial confession and the recovery of the spade constitutes the evidence against the appellant. It is not necessary to refer to the latter again as the gist thereof has already been given earlier in this judgment.
The appellant, in his examination in Court, as already indicated, denied everything including the confessions. In fact, he maintained that it was not he but Akbar Ali who used to reside with the deceased in his house and it was Akbar Ali, who had killed the deceased because he had illicit intimacy with Mst. Karima. In fact he had so confessed before him. But later Akbar Ali and Alam Shah had tied him down, forcibly taken him to the Police Station and there falsely involved him in order to prevent him from reporting against them. According to him, it was he who was seeking information about Fatal Din and had learnt from Mst. Karima as to what had happened to the deceased. He came to Sind to tackle. Akbar Ali, who confessed his guilt, but then got him falsely implicated. Even the story of the loan was denied. According to the appellant, it was Akbar Ali who had advanced Rs. 1,400 to the deceased and had been insisting that either the money should be repaid or in lieu thereof the hand of Mst. Ulfat should be given to his nephew, Ramzan.
The appellant also called a defence witness in support of his case. The latter supported the defence version that it was Akbar Ali who had killed the deceased but in his anxiety to do so, went so far as to say that the appellant was not even related to the deceased.
The trial Court, of course, believed the ocular version given by Mst. Karima and her son Sadiq, as also relied upon both the extra judicial and the judicial confessions. In the High Court, however, it appears, that Mst. Karima and Sadiq were considered to be in the position of accomplices, because, they had gone even to the extent of lying to people at village Nabi Bakhsh Punjabi and telling them that Fazal Din had gone to the Punjab side.
The High Court did not also accept the story that they had Bark refrained from disclosing the crime due to the threats of the appellant, for, the threats, if any, disappeared after the appellant returned to Sin d, leaving them at Punjab. The fact that they did not even then disclose about the incident to any one, told heavily against them. Indeed, the High Court was inclined to think that the non-disclosure by Mst. Karima might well have been due to the fact that she had illicit intimacy with the appellant and had most probably, in collusion with him, got her husband murdered. But since they could not ascribe any such motive to Sadiq, the son, they were inclined to rely upon him.
In any event, since the evidence of Mst. Karima and Sadiq had, in the opinion of the High Court, been corroborated by other evidence, the view was taken that their evidence too could form the basis of the appellant's conviction. This corroboration was said to have been furnished by the conduct of the appellant after the murder of Fazal Din, the lies told by them to cover up the deed, the confessions, both extra-judicial and judicial, and the recoveries made at the instance of the appellant. Hence no difficulty was found in coming to the conclusion that the guilt of the appellant had been proved beyond any reasonable doubt.
The learned counsel, appearing in support of the appeal, has, however, contended that neither of the Courts below was taken note of the many serious discrepancies and contradictions in the evidence of the witnesses. So far as Mst. Karima and Sadiq are concerned, they have, it is pointed out, been belied not only by the fact that the spade was actually recovered from the adjoining garden and not the ditch from which the dead body was recovered but also by the medical evidence which appeared to rule out the possibility of the deceased uttering any cry. Reliance is also placed on her own admission that there was no light at the place where they were sleeping. Hence, it is argued, that the story of recognition of the appellant s the assailant, is of an extremely doubtful character. If the blow was struck with such force as to cause immediate unconsciousness, as opined by the doctor, then it is extremely unlikely that the deceased gave out even a "faint cry" to awaken either Mst. Karima or Sadiq.
Mst. Karima, realising this difficulty, tried in her evidence to introduce a lighted lantern into the room but this embellishment cannot be accepted as no such lantern was seized by the police. The story of being awakened by the cry is also not credible for if it was only a "faint cry" then it could hardly have reached her at a distance of 10 or 15 paces. If she was sleeping 10 or 15 paces away from her husband, she could not have been awakened by such a "faint cry". In view of these infirmities in her evidence and the fact that she had not disclosed about the incident to any one even after the fear of being killed by the appellant was not there she cannot be said to be a witness upon whose word implicit reliance can de placed.
It seems to us furthermore, that the High Court was right in its conclusion that she was in the position of an accomplice in the deed, for, even if she had not actively participated in the killing of the deceased, she had certainly helped the appellant from escaping detection for so long even though she knew that he was the murderer of her husband.
So far as Sadiq is concerned his evidence appears to us to be still less reliable. He is younger than Ulfat yet he was awakened by the cry and not Ulfat. He does not say how he recognised the appellant in the dark night nor does he say that his father mentioned the name of the appellant. It is also significant that both he and his mother stated that when they got up from sleep, Fazal Din was already dead. The probability, therefore, is that no one of the children saw the actual killing. If they had seen then Ulfat too would have been examined as an eye-witness and not withheld by the prosecution. The only other inference possible is that if they did see the crime then they knew that their mother was also implicated in it and for this reason did not disclose anything to anyone. In either event their evidence is unreliable for they are not telling the truth. Either they did not see the crime or if they saw it, then they are concealing the truth. Both Sadiq and Mst. Karima have also been belied about the recovery of the spade from the pit.
It is true that the evidence of an accomplice can form the basis for the conviction of another accomplice, if that evidence is corroborated by other reliable independent evidence. But the question is whether the High Court was right in its view that such corroboration was to be found in the conduct, of the appellant, his confessions and the recoveries made on his pointing out.
So far as the extra judicial confession is concerned, there are discrepant versions about it. One given by Akbar Ali in his First Information Report, the other in the Court and the third by Alain Shah Zamindar. Alam Shah stated that he first came to know about the murder of Fazal Din when the appellant confessed before him, at his Kotha, but if Akbar Ali is to be believed, he had already informed Alam Shah Zamindar about what Mst. Karima had told him at Montgomery. Akbar Ali has himself been found to be a witness on whose word of mouth implicit reliance cannot be placed, for he has contradicted himself on several material particulars. Apart from the contradiction between his evidence and his First Information Report, it appears, that in the Committing Court he had admitted that he used to reside in the same house with the deceased and that he had there also stated that after learning about the murder from Mst. Karima, he returned to village Nabi Bakhsh Punjabi and went straight to the appellant, who confessed before him that he had killed the deceased in order to keep Mst. Karima with whom he had developed illicit relations. The story of the extra judicial confession cannot, therefore, be accepted as true.
Coming now to the judicial confession, it appears that although the investigating police were withdrawn from the Court of the Magistrate by whom the confession was recorded, there were still some armed policemen about for guarding the accused. Again, according to this confession, there was no illicit intimacy between the appellant and Mst. Karima, before the incident. Such intimacy developed only afterwards. In this respect, therefore,-there is no corroboration of the versions given by Akbar Ali as to the motive for the crime. This confession does not also corroborate the versions of Mst. Karima and Sadiq. According to it, Sadiq did not get up on hearing the cry of his father but it was Ulfat who got up. Both Sadiq and Mst. Karima, however, stated that Ulfat did not get up. The confes sion also contradicts the assertion of Mst. Karima that she had no illicit intimacy with appellant. The confession does not also say anything about any admission being made by the appellant before Alam Shah. In any event, this confession has been retracted and, therefore, in accordance with the rule of prudence, now generally accepted, it would be unsafe to act upon it without corroboration. It is thus itself a piece of tainted evidence, which cannot be utilized to corroborate other tainted evidence, such as that of accomplices or of the extra-judicial confession.
Having thus examined the evidence with care, we have come to the conclusion that there are not only serious contradictions in the evidence, which have not been taken into account by the Courts below, but also that this evidence is wholly insufficient for convicting the appellant for the murder of Fazal Din. The High Court has in our view, erred In departing from the principles of safe dispensation of criminal justice, in upholding the conviction of the appellant under section 302, P. P. C. wholly upon such tainted evidence and omitting to notice that one piece of tainted evidence cannot corroborate another piece of tainted evidence.
As regards the conduct of the appellant, it is sufficient to point out that such conduct may be equally consistent with the fact that the appellant had only assisted in the disposal of the dead body after he came to know of the murder by someone whom he wished to shield. For ought we know Mst. Karima herself or both Mst. Karima and her son Sadiq may have killed Fazal Din. The pit could not, however, have been dug either by Mst. Karima or the young lad Sadiq who was then only about 13 years old. 1""or these reasons, we have come to the conclusion that while it would be unsafe to uphold the conviction of the appellant for the offence under section 302, P. P. C. yet the facts proved do establish an offence under section 201, P, P. C. The appellant could not have pointed out the exact location of the pit unless he knew of its existence and this knowledge he could only have acquired by participating in the disposal of the dead body.
The recoveries are also not of much assistance. No blood was detected on any of the articles recovered. Apart from this there are conflicting versions with regard to the place from which the spade was recovered. Mst. Karma stated that it was buried in the pit along with the dead body and Sadiq stated that it was recovered from the pit but the police and the mashirs deposed that it was dug out by the appellant from the adjoining garden. What then is the value of this recovery It corroborates no one. For these reasons we have come to the conclusion that this appeal must be allowed to the extent that the conviction an sentence of the appellant under section 302, P. P. C. must be W aside. He is accordingly acquitted of this charge but he is convicted under section 201, P. P. C. and sentenced to suffer rigorous imprisonment for 7 years.
Appeal partly accepted.
Conviction altered.
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