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(On appeal from the judgment and order of the Lahore High Court, dated 27-8-1977, in Cr. A. 245/76).

(a) Constitution of Pakistan (1973)-

-- Art. 185(3) read with Penal Code (XLV of 1860), S. 302-MurderConviction for-Leave to appeal-Granted to re-examine question whether, after exclusion of recoveries of deceased's articles, confessions together with other attending circumstances were sufficient for. . maintaining conviction.

(b) Penal Code (XLV of 1860)-

S.302-Murder-Evidence-Witness--Mere fact that witnesses to extra-judicial confession were connected with and also related to deceased and father-Held, would not, affect (credibility of) such witnesses.-[Witness].

(c) Penal Code (XLV of 1860)-

S. 302 read with Evidence Act (I of 1872), S. 3 -- Murder-Evidence-"Proved"-Definition-Circumstances in which dead body

discovered,, accused apprehended and clue to murder found-Held,

riot only relevant but also constitute "matters before Court" which

be taken into consideration as "proved" as defined in S. 3 of Evidence

Act. :[Words and phrases].

(d) Penal Code (XLV of 1860)-

(. 302-Murder - Evidence, appreciation of-Acceptance by cowls - below of confessions as genuine and true neither contravening .

any law or principle nor against record -Confessions finding substantial support from conduct of accused as also medical evidenceConviction upheld.

Ch. Abdul Rahman, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record (absent) for Appellant.

Kokab Iqbal, Advocate Supreme Court for the State.

Date of hearing : 22nd February, 1983.

ORDER

MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave of this Court is directed against the judgment dated 27-8-1977 of the Lahore High Court; whereby while upholding the conviction of Habibullah appellant for the murder of one Hamid Mahmud, the sentence of death awarded to him was reduced to imprisonment for life. The sentence of fine was, however, maintained.

Hamid Mahmud deceased a boy of about 13 years was studying in

Jamia Rashidia, Sahiwal. . Habibullah appellant and his acquitted co-accused,

Asadullab were also then studying. Hafiz A bdul Majeed (P. W.) father of

deceased was a teacher in* the same institution. Habibullah appellant,

aged 17 was also a student of the institution but hip name was struck off the

same. This happened about two weeks prior to t' be occurrence which took

place on or about 12-7-1974. On that day the deceased went out after Asar

prayer time but did not return. On inquiry made by A bdul Majid (P. W.)

one Muhammad Din (not examined as a witness) informed him that the

deceased was seen with the appellant and accused Aiadullah. The search

continued till 16-7-1974. In the meanwhile, one Abdul Ghafoor who also

was not examined as P. W. contacted the appellant on the basis of the

earlier information conveyed by Muhammad Din, so as to ascertain the

whereabout of the deceased. On the afternoon of 16-7-1974 the dead body

of the deceased was found near a canal bridge. Abdul Majid accordingly

reported the matter to the police at 5-00 p. m. on that day. The appellant

and his co-accused Asadullah were mentioned in the F. I. R. Two motives

were alleged against them, one of unnatural offence and the other of

educational rivalry and jealousy. Post-mortem performed on the morning of

17-7-1974 revealed that the dead body was in an advanced stage of putre-

faction. All the soft parts in the thorax and abdomen were almost completely

eaten: It was clad in a torn shirt. Afore-noted state of the body, traces of

two incised wounds, one on the upper part of the front left leg and the

other one (skin deep) on the inner side of right thumb, were noted. The

cause of death however, could not be clearly ascertained. The appellant who

in the meanwhile had been taken into custody, when medically examined bad

four simple contusions and a swelling. On his pointing out, blood-stained

earth was recovered from. near the dead body, where, according to the

confession of the appellant, the murder took place. Similarly the blood-

stained chaddar and handkerchief of the deceased were recovered at the

pointing out of the appellant from a nearby ditch. On the same day i.e.

17-7-1974 an application was made by the police for recording of the

confessional statement of the appellant which could not be recorded on that

day nor the next day, I.e. 18-7-1974, when the appellant was sent to judicial

lock-up. On 19-7-1974, however, Mr. Ahmed Raza, Magistrate '1st Class

recorded his confession wherein be owned the killing but on an other motive;

namely, the enmity of his co-accused Assadullah with the deceased. He also

bad carlior made an extra ;judicial confession to Maulvi Maqbool Ahmad

(P. W.) and Hafiz Muhammad Ahmad (P. W. 3) who had recovered a knife, the weapon of offence, from him. In this extra judicial confession the motive disclosed was an attempt to commit the unnatural offence.

All the aforenoted circumstantial and other evidence was led at the trial. The appellant's plea was of denial and false implication-by Maulvi Maqbool Ahmed and Hafiz Muhammad Ahmad who as stated were ; elated to the deceased. Regarding judicial confession, his plea was that it was made under coercion. No evidence was led in defence.

Learned trial Judge did not rely on the recovery but accepted both the confessions, extra-judicial as well as judicial, as true and genuine. Relying on the confessions as also the other attending circumstances the learned Judge held the appellant guilty under section 302, P. P. C. and sentenced . him to death. Asadullah the other accused was acquitted on benefit. of doubt.

On appeal and reference a Division Bench while maintaining the conviction of the appellant under section 302, P. P. C., reduced the sentence to imprisonment for life mainly on ground of age.

Leave was granted to re-examine the question whether in the facts and circumstances of this case, after the exclusion of the recoveries of th

articles belonging to the deceased, the confessions together with the remaining attending circumstances, were sufficient for maintaining th

conviction.

There are two main attacks on the extra judicial confession made by the appellant to Maulvi Maqbool Ahmad and Hafiz Muhammad Ahmad

(P. Ws.) : firstly, that they are interested witnesses because the former is closely related to the deceased and the latter is connected with the educational institution Jamia Rashidia, where the deceased was a student ; and secondly, that the motive disclosed in this extra judicial confession is at variance with the motive mentioned in the F. I. R. as also, the judicial confession.

It is true that both the witnesses of the extra judicial confession ar connected with and also related to the deceased and his father, th B

complainant in this case ; but, mere relationship unless ttrere is an interest to falsely implicate the accused, would not affect the witnesses. There is no indication that the complainant bore any grudge against the appellant prior to this occurrence. There was no reason for him to falsely implicate him and

there was none whatsoever for his relations. On the other hand the appellant who is mentioned as Hafiz-i-Quran, was connected with these two witnesses so closely in the institutional relationship, that they could not have any motive to falsely implicate such a person. Moulvi Maqbool Ahmad (P. W.) who had performed Haj ten times had impressed the learned trial Judge as a pious person who was otherwise also, not likely to falsely involve the appellant. The comment in that behalf in the trial Court judgment is that

this witness was "the Nazam of a very big religious institution named Jamia witness impressed me a lot during the trial . . . . . . . . whereabout 600 students got religious education and are taught Quran and Fiqab. . : . . .

He has been on Tabligh Mission to the United Kingdom for sufficient time." There is no force in the first contention about reliability .of these P. -Ws.

Regarding different motives stated by the appellant in the two

confessions, it is pertinent to note that they are not mutually exclusive. Both could be correct. He stated in the judicial confession that Asadullab a boy of 15, his co-accused, had some grudge against the deceased,

a lad of 13 years ; and, that the appellant acted, as he did, for his friend's sake. This confession is very short one in few lines. The details about the

manner in which the deceased was inveigled to the place of occurrence and then was asked to submit first to sodomy, are missing. On the other hand the extra judicial confession made to the two witnesses, which is first in time and was made immediately by the appellant to them (on being apprehended) without any tutoring one way on the other, is very detailed. He then stated that the deceased when taken to a place of vantage for act of sodomy (it was so found during the investigation), resisted the overtures made by the appellant and his companion, verbally and then physically also. According to one witness who gave more details about this part of the occurrence, the young lad also attacked the appellant with his hands in the defence of his honour and it was then that he was counter-attacked by the accused. Thus it appears, for some previous mutual incident amongst the boys, it, was intended that he be taught a lesson which to the ill-luck of all concerned developed into sinister acts-first attempt at sodomy and then, on account of the physical forceful resistence by the boy, the act of murder. It was due to all this, therefore, that before the appellant handled the knife, according to one witness, he had asked his companion to do so ; who, did use it but started trembling and then he (the appellant who was the eldest amongst the three) took the knife himself and, as stated by him, gave a couple of blows. The so-called discrepancy in the motive disclosed in the two confessions, thus is not real. Same is the position regarding the suspected motive disclosed in the F. I. R. which fits in with the above analysis.

There are two other smaller points also which might be dealt before passing on to the judicial confession. It is said that the doctor was unable to give the cause of the death due to advanced putrefaction of the dead body. The post-mortem examination took place on the morning of the 17th while the appellant made extra judicial confession also on the- morning of 17th. The state of the body which no doubt was found on the 16th, was such that it was difficult for laymen to discover as to what was the cause of death. It was found on the bank of the canal half submerged in water. One guess could be about drowning but the doctor was later on able to discover "traces" of use of a sharp-edged weapon. This, however, was known to the appellant even before the discovery by the doctor. He had disclosed it in his extrajudicial confession. These circumstances not only confirm the same but also are positive evidence about the cause of the death.

The appellant had few contusions on his person. He tried to utilize them in his favour at the trial by pleading that the confession was due to beating. But as noted by the learned trial Judge, he told lies in this behalf. In his two statements, one before the learned Committing Magistrate and the other before the learned trial Judge, be gave two different reasons. One that the police tortured him and the other that the 'two witnesses of extra-judicial confession and the complainant gave him beating for extracting the confession. These witnesses did manhandle him when according to one of them he tried to escape. But that also would not produce all the contusions found on the body of the appellant. They seem typical marks of fist blows. . The explanation given by accused being self-contradictory and false the only other view (highly probable one) is that they are due to the fist blows inflicted by the deceased on the appellant when resisting and attempting to extricate himself from his clutches. The different duration mentioned by the doctor is an obvious mistake in forming an opinion in that behalf, without noticing the state of colouring etc. of the-contusions.

Some doubt was also sought to be created with reference to the identity of the deceased-the argument being that the maggots had damaged the dead

body to considerable extent so as to make the identification impossible.

True it was difficult, (as it appears from the description given by the doctor)

to make identification: but, the complainant, a father having himself made

the discovery of the dead body identified it. - The recoveries of the articles

belonging to the deceased, even if doubtful in so far as the question whether

the appellant led the police to this recovery, is independently a material. io

help identify the dead body. The cross-examination of the witnesses in this

behalf did not produce any positive result in favour of the appellant. And

if the confessions are relied upon they also furnished the direct evidence with

regard to the death of the victim in this case. The medical evidence, therefore,

contrary to what has been urged as contradicting the prosecution case, to a considerable extent as has been discussed above, confirms it.

The criticism by the defence regarding the use of judicial confession against the appellant by the learned Courts below, has also, on scrutiny, been found to be of no avail to the appellant. The contents of the confession and papers connected therewith do not show that the learned Magistrate who recorded the confession disclosed his own identity to the appellant before recording it ; but, in the circumstances of this case the appellant did not suffer any prejudice in this behalf ; because according to his own admissions in his statement made under section 342, Cr. P, C. he was aware when making the confession, that it was being recorded by a Magistrate. In fact the appellant was taken twice before the Magistrate for recording his confession and on the second time i.e. on 18-7-1974, the learned Magistrate made a -note, that the confessional statement could not be recorded while the accused was on personal remand with the police. Accordingly it wad directed that he be sent to the judicial lock-up and then he should be produced for recording of the statement. Accordingly the appellant was kept in the judicial lock up and produced again on the next day, for recording of his confession which was then duly recorded after the warning that he was not bound to make it. The argument that no such warning was administered to the appellant, is not based on the record. The testimony of the Magistrate in this behalf having been scrutinized no substantial defect has been found with regard to the recording of the confession and formalities connected therewith.

The criticism based on so-called conflict between the . motive mentioned in the judicial confession and the other motives mentioned elsewhere, has already been dealt with and same is the case with regard to the argument that the medical evidence does not support the version contained in the confession.

The general argument that the evidence regarding last seen which was available not having been produced against the appellant and the recoveries of the articles belonging to the deceased not having been used against the appellant by the learned Courts below, these circumstances should react on .the value of the extra judicial confession, ignores a basic question in this case that there was no element of animosity against the appellant as noted earlier in so far as the complainant's side is concerned. On the other hand the. witnesses of extra-judicial confession before whom the appellant disclosed the details of the occurrence in the first instance, immediately after he was apprehended by them, are in the position of his own guardians. They, however, deposed against him despite a possibility of a soft corner for him. as their ex-student. The appellant at the time of occurrence was also of tender age. None had any grudge whatsoever against him. The circumstance that the two witnesses of last seen together-Abdul Ghafoor and Muhammad Din or for that matter the cycle owners from whom

the three boys hired cycles, did not appear and depose against the appellant. are indicative of the fact that in the background of the case, they might have been prevailed upon by the defence not to depose against the boys. But despite that the circumstances in which the dead body was discovered, the appellant and his companion were apprehended and the clue to the murde was found, all of them not only are relevant but also constitute "the matters, before the Court" ; which, as is evident from the definition of "proved" in the Evidence Act, could be taken into consideration. However, it is not necessary to discuss this aspect of the case in detail as it appears that the learned Courts below, by way of abundant caution, have kept them out of consideration. .

As a result of the scrutiny made with the help of the learned counsel for the appellant, we are satisfied that the acceptance by the learned Courts below of the two confessions as genuine and true, has neither contravened any law or principle nor it is against the record. The confessions. find substantial support from the conduct of the appellant as also medical evidence. The -conviction for the offence of murder in this case is amply justified. Tne appellant has already been extended the benefit of lesser sentence, is not a fit case for interference. This appeal accordingly is dismissed.

S, Q, Appeal dismissed.

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