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Criminal Appeal No. 983 of 1959, decided on 3rd May, 1960.
S. 27‑Accused pointing out dead body in wheat field‑Accused seen with deceased in same place before murder‑Duty of accused to explain how deceased met with her unnatural death.
, S. 24‑All ingredients of section must be satisfied before confession could be rendered irrelevant.
Held, that the use of the word "and" in section 24, Evidence Act, 1872 left no room for doubt that all .ingredients of the section should combine in order to make the confession irrelevant. The presence of one or more ingredients but not of all will not render the confession irrelevant.
S's. 24 & 25 ‑Extent of protec tion‑"Accused person" in S. 24 means the same as "person accused of any offence" in S. 25.
Held, that "the accused person" used in section 24 has not a different meaning from "a person accused of any offence" occurring in section 25. Both phrases mean exactly the same thing.
If in substance sections 24 and 25 are exactly the same, why should a distinction be drawn between the two with regard to the position of an accused when he makes a confession simply because in one case the word "relevant" is used and in the other the word "proved". Section 24 has got a very protective value and it is difficult to see why should this protection be afforded only to those persons against whom charge has been levelled and some sort of proceeding initiated and not to those persons against, whom no charge is levelled and no proceeding yet initiated but who becomes an accused person later on. To limit the section in the manner suggested would obviously rob the section of much of its protective effect.
Section 24 would apply even if the person who is said to have made the confession was not an accused at the time when he made the confession. It is sufficient if ultimately he became an accused with reference to the charge in respect of which he is said to have made the confession. It is quite enough that the confession is subject to the infirmities which are laid down in the section and if it is made by an accused person either at a time when he was an accused person or before he comes to be accused.
Principles and Digest of the Law of Evidence by Monir, Third Edition pp. 192 and 913 ref.
Santokhi Beldar v. Emperor 142 I C 474 considered.
S. 24‑Sarbarah Lambardar -Person in authority‑Promising to "help" if accused "told truth" but if accused "did not disclose facts" he would be "handed over to police"‑Inducement and threat‑[Muhammad Alam v. The State P L D 1960 Lah. 71 and Nazir v. The State P L .D 1960 Lab. 189 ref.]
S. 24‑Confession‑Whether made to "gain any advantage or avoid evil of temporal nature " Accused's conduct after confession (e.g. leading to place where dead body lay pointing out buried weapon of offence) and proof of presence of semen on accused's clothing may disprove existence of any supposition on part of accused that confession was made to "gain any advantage or avoid evil of temporal nature" Confession held admissible.
If the confession is proved by the accused himself to be correct, and not made in order to gain any advantage or avoid any evil of a temporal nature, then "in the opinion of the Court" it will not be held that the inducement, threat or promise was sufficient to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
The accused after making the extra‑judicial confession, took the Sarbrah Lambardar to the place where he had commit ted the murder. The dead body of the victim was lying there. It was found that sexual intercourse had been committed with the victim. The accused was also found to have committed sexual intercourse because semen was found on his loin‑cloth. He led the Sarbrah Lambardar to the place where he had hidden the sickle, the weapon of offence. By his own act and conduct, therefore, he compelled the Court to' form an opinion that the inducement, threat or promise had not the effect mentioned in the last ingredient of section 24 of the Evidence Act and the con fession was, therefore, not irrelevant.
Nazir v. The State P L D 1960 Lab. 189 considered.
Must exclude reasonable hypothesis of innocence before accused could be convicted on basis of such evidence‑Pointing out dead body of girl raped; pointing out buried weapon of offence loin‑cloth stained with semen ; injuries on person of accused unexplained‑Enough for conviction of rape and murder‑[Allah Ditta v. The State P L D 1958 S C (Pak.) 290 ; Billmoria alias Muhammad Hussain v. The State P L D 1958 S C (Pak.) 313 and Faiz Ahmad v: The State P L D 1960 S C (Pak.) 8 rel.; Nazir v. The State P L D 1960 Lah. 189 dissented from].
Raw youth‑Leniency in sentence only if offence committed under influence of another‑Accused aged 16 years‑Sentenced to death on conviction for murder and rape.
Two possible interpretations Interpretation unfavourable to accused not to be adopted unless there is specific reason for such adoption‑[In re : Kanaka Sabai Pillay A I R 1940 Mad. 1 ; Sarju Parshad v. Emperor 25 1 C 625 ref. and Nazir v. The State P L D 1960 Lab. 189 supported].
Each case decides its own facts‑Supreme Courts finding after evaluation of circumstantial evidence‑‑How far binding‑[Qutba v. The Crown P L D 1954 F C 197 ref.]
Abdul Haq assisted by Ghulam Mujtaba for Appellant.
Ejaz Husain Batalvi for A. G. for Respondent.
Dates of hearing : 13th and 14th April 1960.
Nazra, aged 16 or 17 years, son of Lal Khan, resident of Chak No. 65‑S. B. has been convicted by the learned Sessions Judge, Sargodha, under sections 302 and 376 of the Pakistan Penal Code. On the first count he has been sentenced to death and on second count to ten years' rigorous imprisonment. He appeals against his convictions and sentences. The record of the proceedings has also been forwarded to this Court under section 374 of the Code of Criminal Procedure for the confirmation of the death sentence.
2. The girl whom the appellant is alleged to have raped and then murdered was his co‑villager, Mst. Gulab Khatoon, aged about 9 or 10 years (or may be a little more), daughter of Abdul Halim, a weaver. She, on autopsy being performed on her body, was found to have (1) a wound on the front of neck, 2 " x 1 " x 2 ", cutting all the structures on the front of the neck. The neck was attached posteriorly only by the skin and on the sides by muscles. The carotid artery on the right side was intact. The ligaments connecting first and second cervical vertebrae were cut thus separating the vertebrae She also had (2) a wound on the right side of the neck, 1" x " x " ; (3) a wound, 2/3 " x 1/8", on the front of the neck " above the upper margin of wound No.1 ; and (4) an abrasion, " x 1/8", oblique, on the inner side of left thigh, 5J" above the knee joint. The swab was taken from inside her vagina which together with her shalwar were sent to the Chemical Examiner who found both stained with semen. The accused‑appellant was also medically examined and was found to have the following injuries :‑
(1) A scratch on the back of the right forearm lower part ", long, longitudinal.
(2) An abrasion, " x ", on the right inguinal region.
(3) An abrasion, " x ", on the front of left thigh, longitudinal in direction.
(4) A transverse abrasion on the front of left knee, " x ".
The loin cloth of the accused was also taken into possession by Lai Khan, S. H. O. on the 29th of March 1959. It was found on analysis by the Chemical Examiner to be stained with semen. The accused‑appellant denied the charge in toto. In the Court of the Committing Magistrate he admitted that he had injuries upon his person but he explained them by saying that he sustained them in the course 9f the husbandry work. He had denied that any loin cloth was removed from his person, or that it was stained with semen. In the Court of Session he largely stuck to his statement made before the Committing Magistrate except that he totally denied that he had any injuries upon his person. When questioned as to why was this case brought against him he said that Alam Din, Amir Khan Lambardar and Ghulam Ali P. Ws. were inimically disposed towards him and that is why he had been falsely involved.
3. The prosecution case in brief was that the deceased in this case had gone out on the morning of 28th March 1959 in order to collect bers in the fields close‑by. She did not return till the evening which caused considerable anxiety to her father, Abdul Halim (D. W. 7), her brother Muhammad Shafi (P. W. 4) her mother and her other relations. They made a search for her till late at night but could not get any clue of her and so they reported the matter to Amir Khan Lambardar (P. W. 8) who advised them that as it was night, the search might be postponed till the next day. On the following day, Abdul Halim (P. W. 7), Amir Khan Sarbrah Lambardar (P. W. 8), Fazal Ahmad (P. W. 9) and Alam Din (P. W. 10) set out from the village in order to make a search for the missing girl. During the search, they met Ghulam Ali (P. W. 11) who informed them that he had seen the deceased on the previous day at about noon‑time picking bers from the ber tree3 in the fields of one Misri Khan and Nazra accused sitting near‑by on the banna of the field. He, therefore, suggested to them that inquiries should be made from Nazra. The party consequently accompanied by the afore mentioned Ghulam Ali went to Nazra's house and calling him out from inside enquired from him about the missing girl. He first totally denied all knowledge of her. The Lambardar, however, held out a promise to him that if he disclosed the true facts, he would help him and had also warned him that if he did not disclose the facts he would hand him over to the police. Three‑quarters of an hour or an hour of persuation succeeded in getting an admission out of Nazra appellant that on the previous day he had gone to the fields to cut fooder while Gulab Khatoon had gone there to collect bers. He felt an urge to commit sexual intercourse with her. He first cut jokes with her and then, when he saw there was no body in the vicinity, forcibly took her into adjoining wheat field, and after unstringing her shalwar committed rape upon her. As Mst. Gulab Khatoon had raised a hue and cry, he put some earth in her mouth which made her somewhat unconscious. He then cut the throat of Mst. Gulab Khatoon with a sickle. After hearing this harassing narrative the party asked Nazra appellant to lead them to the place where the dead body of Ust. Gulab Khatoon was. Accordingly he led them to the wheat field of Misri Kh to which was to the south of the field containing ber tree and there pointed out the dead body of Mst. Gulab Khatoon lying at a distance of about five karams inside the wheat field. Wheat crop about five feet high was then standing in this field. It was about 31 or 32 karams away from the through fare and 7 killas away from the village. The throat of Mst. Gulab. Khatoon had been cut and there was earth in her mouth. Her shalwar was lying on her legs and the wheat plants near‑by were all crushed Some bers and broken glass bangles were lying near the dead body. The Sarbrah Lambardar took Nazra into his custody and deputed Abdul Haleem P. W. to proceed to the police station to make the report. Abdul Haleem (P. W. 7) reached Kot Momin Police Station at about 4 a.m. on the 29th of March 1959 and dictated the report to Ch. Lai Khan, Sub‑Inspector, (P. W. 12). who reached the spot at about 11‑30 a.m. After preparing the inquest report and the injury statement of the deceased, he sent her body to the mortuary for post‑mortem examination. On interrogation, the accused offered to lead to the recovery of the weapon of offence. Accordingly he took the police to a malta plant, from near the root of which he took out a sickle and produced it before the Sub‑Inspector. It was sent to the Chemical Examiner but was not found to have any blood on it.
4. At the trial, the prosecution story was supported by Abdul Haleem (P. W. 7), Amir Khan (P. W. 8), Fazal Ahmad (P. W. 9), Alam Din (P. W. 10) and Ghulam Ali (P. W. 11). The learned trial Court has believed all these witnesses and in my view very rightly. Although the accused stated in his statement before the Court of Session that he had been falsely implicated in this case by Alam Din, Amir Khan Lambardar and Ghulam Ali P. Ws. who were inimically disposed towards him, yet he produced no evidence to substantiate his charge. In any case he had nothing to say as against Abdul Haleem (P. W. 7), the unfortunate father of the victim of this outrage, as to why he falsely charged him if the murder to his knowledge was commit ted by somebody else. Abdul Haleem was not alleged by him to be inimically disposed towards him and he, therefore, is completely a disinterested person. So far as Amir Khan, Alam Din and Ghulam Ali are concerned, a vain attempt was made only in the cross‑examination of Alam Din that he was an enemy of ,the accused ; no such attempt was made in the case of the remaining witnesses. Fazal Ahmad (P. W. 9) again is a parson against whom it is not alleged by the accused in his statement that he was also inimically disposed towards hits. All these witnesses thus are absolutely disinterested and independent. Their evidence cannot be impeached on any ground whatsoever.
5. The learned trial Court while convicting the accused based its judgment on the following facts :‑
(1) that the accused was the last person with whom the deceased was seen alive,
(2) his extra‑judicial confession made before the aforemen tioned witnesses,
(3) his leading these witnesses to the place from where the dead body of Mst. Ghulab Khatoon was recovered,
(4) presence of semen on his loin cloth Exh. P. 6, and
(5) his leading to the recovery of weapon of offence, namely, the sickle Exh. P. 5.
6. The learned counsel appearing for the defence has argued the case mostly challenging the relevancy of the so‑called extra judicial confession made in the presence of the aforementioned witnesses. He contended that it was hit by section 24 of the Evidence Act and would, therefore, be completely irrelevant. He did not touch the other circumstances on which the learned trial Court has based the conviction.
7. So far as the deceased having been last seen alive in the field of Misri Khan where the accused was also present is concerned, it has been proved by the evidence of Ghulam Ali (P. W. 11). It cannot be denied that after Ghulam Ali saw the unfortunate victim of this grossly grisly outrage picking the bers in the field of Misri Khan and the accused sitting on the banna of the same field, Mst. Gulab Khatoon was not seen alive by anybody. There is no reason whatsoever why should Ghulam Ali have made this statement. The truth of Ghulam Ali's statement was fully proved by the fact that it was the accused appellant who led the party to the place where the dead body was lying. Having been seen in the same field with the deceased, a duty was cast on the accused to explain as to how did the deceased meet the unnatural death. By itself this circumstance may not be considered enough to connect the accused with the) murder but taking it in' conjunction with the other circum stances hereinafter considered, I think it assumes an importance of the greatest magnitude.
8. The learned counsel appearing for the accused has not denied the factum of the confession having been made to the aforementioned witnesses. He has, however, very vehemently argued that section 24 of the Evidence Act makes this extra judicial confession absolutely irrelevant. Section 24 of the Evidence Act reads as under:‑--
"A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."
The analysis of this section would make it perfectly clear that before a certain confession made by an accused person is held to be irrelevant, it must satisfy the following ingredients :‑
(1) It should be made by an accused person,
(2) the confession should appear to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person,
(3) the inducement, threat or promise, referred to above, must proceed from a person in authority, and
(4) such inducement, threat or promise must be sufficient in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
The use of the word and' leaves no room to doubt that all these ingredients should combine together in order to make the confession irrelevant. The presence of one or more ingredients but not of all will not render the confession irrelevant under section 24 of the Evidence Act.
9. In this context, the learned trial Court has found that a confession cannot become irrelevant if it is made by a person who was not an accused person at the time when he made the confession. It has made reference in its judgment to the commen tary at pages 192 and 913 in Principles and Digest of the Law of Evidence by Monir, Third Edition, where the learned commen tator after referring to Santokhi Beldar v. Emperor (142 I C 474) observed that the proposition stated in that authority could not be accepted as correct. It was further observed that since the section makes a confession inadmissible only if it was caused by any inducement, threat or promise having reference to the charge against the accused person, proceedings from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him to be reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him, it is clear that there must be some sort of proceeding pending and some charge against him under investigation at the time he made the confession. The learned commentator while giving his commentary under section 25 of the Evidence Act has stated that at the time the incriminating statement was made, the maker should have been an accused person. According to him the statement would be inadmissible if the maker subsequently became an accused person. The test laid by him was the position of the person when it was proposed to prove the confession and not his position at the time when he was alleged to have made it. If sections 24 and 25 are compared with each other, I do not find any justification to interpret them in the two different ways as the learned commen tator has done. Section 24 makes a confession made by an accused person irrelevant in a criminal proceeding but qualifies it by saying that it will be only irrelevant if the making of the confession appears to the Court to have been caused by any inducement, threat or promise etc. etc. whereas a confession made to a police officer cannot be proved as against the person accused of any offence even if it appears to the Court not to have been caused by any inducement, threat or promise etc. etc.
I do not think in this context "the accused person" used in) section 24 has a different meaning from a person accused of, any offence occurring in section 25. Both phrases in my view mean exactly the same thing. The word "proved" is defined in section 3 as under:‑--
"A fact is said to be proved when, after considering the matters before it the Court either believes it to exist, or con siders its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
It is on the basis of the use of this word that the learned commen tator has held that "the test is the position of the person when it is proposed to prove the confession and not his position at the time when he is alleged to have made it." The word "relevant" is also defined in the same section as under:‑--
"One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts."
Under section 5 "evidence may be given in any suit or proceeding of the existence or non‑existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others". If we read section 24 in the light of section 25, then it would mean that no evidence may be given in a criminal proceeding of the existence of a confession if the making of the confession appears to the Court to have been caused by any inducement * * * *. In other words, it amounts to the same thing, that is to say, that such a confession cannot be proved in any criminal proceeding before a Court of law. If in substance sections 24 and 25 are exactly the same, then I do not see why should a distinction be drawn between the two sections l with regard to the position of an accused when he makes a confession simply because in one case the word "relevant" is used and in the other the word "proved". Section 24 has got a very protective value and it is difficult to see why should this protection be afforded only to those persons against whom charge has been levelled and some sort of proceeding initiated and not to those persons against whom no charge is levelled and no proceeding yet initiated but who becomes an accused person later on. To limit the section in the manner suggested would obviously rob the section of much of its protective effect. I am, therefore, of the opinion that section 24 would apply even if the person who is said to have made the confession was not an accused at the time when he made the confession. It is sufficient if ultimately he became an accused with reference to the charge in respect of which he is said to have made the confession. It is quite enough that the confession is subject to the infirmities which are laid down in the section and if it is made by an accused person either at a time when he was an accused person or before he comes to be accused.
10. The next question which has to be seen in this context is whether the confession was caused by any inducement, threat f or promise, proceeding from person in authority. The reading of the evidence makes it perfectly clear that Amir Khan (P. W. 8) did hold out a promise to the appellant and probably threatened him and thus induced him to make this confession. It is admitted by practically all the witnesses that the appellant was promised a help if he told the truth and he also threatened to be handed over to the police if he did not. The words "to tell the truth" mean the confession of guilt. It is also quite clear to me that Amir Khan (P. W. 8) who was a Sarbrah Lambardar was a person in authority within the meaning of section 24. These two questions have been finally concluded by two judgments of this Court Muhammad Alam v. The State reported in (P L D 1960 Lah. 71) in which the leading judgment was written by me and Nazir v. The State reported in (P L D 1960 Lah. 189). In the first case it was held that a Sarbrah Lambardar was such a person in authority as the Lambardar. It was held therein that the phrase "if you tell me the truth I will try to save you" amounts to an inducement. The detailed reasons for coming to that view have been given in Muhammad Alam's case and I need not repeat them in this judgment.
11. It must, therefore, be held that a confession was made by the accused appellant which was caused by an inducement, threat or promise having reference to the charge against the accused person proceeding from a person in authority. But then one further ingredient has got to be proved by the accused before section 24 can be brought into operation. He must show that such inducement, threat or promise is sufficient in the opinion of the Court to give the person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him, that is to say, if the statement which he has given as a result of the inducement, threat or promise held out to him, is made in order to gain any advantage or avoid any evil of a temporal nature, then that confession will be hit by section 24, but if the confession is proved by the accused himself to be correct, and not made in order to gain any advantage or avoid any evil of a temporal nature, then "in the opinion of the Court" it will not be held that the inducement, threat or promise was sufficient to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." In the case in hand, immediately after making the extra judicial confes sion, the accused took Amir Khan etc. to the place where he had committed the murder. The dead body of the unfortunate victim was lying there. It was found sexual intercourse had been committed with that woman. The accused was also found to have committed sexual intercourse because semen was found on his loin‑cloth. He led Amir khan etc. to the place where he had hidden the sickle, the weapon of offence. By his own act and conduct, therefore, he compelled the Court to form an opinion that the inducement, threat or promise had not the effect mention ed in the last ingredient of section 24 of the Evidence Act and the confession was, therefore, not irrelevant. The learned counsel for the accused has laid a very great stress on Nazir v. The State and has contended that the facts of that case were very much similar to the facts of this case and if the accused in that case got an acquittal there is no reason why should the accused in this case be not acquitted. In Nazir's case section 24 of the Evidence Act was not gone into so exhaustively as I have done in this case. The application of the principles of the apprecia tion of the circumstantial evidence is a matter to be determined with reference to the facts and circumstances of each particular case and not by reference to the previously decided cases. In this particular case my firm view is that the accused by his own conduct has proved beyond dispute that the confession made by him though induced by Amir Khan was a true confession and was not hit by section 24 of the Evidence Act.
12. Even if it be conceded for the sake of argument that the confession is hit by section 24 of the Evidence Act still in my view the circumstantial evidence in the case is so strong that it excludes any reasonable hypothesis of the innocence of the accused. The witnesses have absolutely no ground to charge the appellant falsely. He was seen with the girl in the same field on the day when the girl was done to death. He pointed out the place from where the dead body was recovered. There is no evidence upon the record to show that the dead body was seen by any person prior to the accused leading Abdul Haleem etc. to that place. The accused while explaining to the Court the evidence regarding the pointing out of the dead body, beyond denying that he ever led the witnesses to that place, did not say as to how did he come to know that the dead body was lying in that particular place. He then pointed out a place from where a sickle was recovered. It is true that no blood was found on this sickle but if the murder had not been committed with this sickle, then there was no reason for anybody to have concealed it under the malta tree. The fact that the accused pointed out the place and the sickle was recovered from there clearly goes to show that it was this sickle with which the murder was committed and the accused before hiding it there in all probability had cleaned it of the blood. There is then the most significant fact that sexual intercourse had been committed on the woman and the accused was found to be wearing a loin‑cloth which has semen‑stains on it. The cumulative effect of all these recoveries at the instance of the accused leads one to an irresistible conclusion that he is the person who has committed this murder. Another very strong circumstance connecting the accused with the murder is the finding of the tell tale injuries on his person. They clearly show that he sustained them while committing the murder and indulging in the sexual intercourse. Although the accused stated in the first Court that they were received by him in the course of husbandry work, he did note stick to it in the Court of Session where be said that he had no injuries on his person. As he feels shy to explain these injuries, the only inference is that he sustained them in an affair which he could not make public. The circumstances brought upon this record clearly connect the accused with the murder as well as with the rape.
13. I am afraid I do not agree, and this I say with all deference and the greatest of reluctance, with the finding of the learned Judges in Nazir's case that under such circumstances the accused will only be guilty under section 201 and not under section 302 of the Pakistan Penal Code. This view is very much opposed to the view taken by the Supreme Court in at least three recent authorities. The first is Allah Ditta v. The State reported in (P L D 1958 S C (Pall.) 290). In this case the accused pointed out the place in a freshly ploughed field where the dead body of the deceased had been buried. When the place was dug out, the dead body indeed was recovered. The accused had then led the police to an abandoned but nearby from which he produced a spear blade. That also had blood on it but by the time it reached the Serolo gist, the blood had disintegrated so that it cannot be ascertained whether or not it was of human origin. As in the present case, the evidence did not indicate that the accused took any time in searching for the place where the dead body had been placed or where the weapon of offence had been concealed. On this evidence their Lordships came to the conclusion that the case of murder had been fully established against the accused. The second case to which I wish to make reference is Billmoria alias Muhammad Hussain v. The State (P L D 1958 S C (Pak.) 313). In this case everything robbed from the murdered man was recovered from the accused's possession on the 4th day following the discovery bf the crime It was held that it was a strong circumstance favouring the belief that he was the person who removed these things, following the murder, and the natural inference was that he was directly con cerned in the murder. The last case on the subject is Fait Ahmad v. The State (P L D 1960 S C (Pak.) 8). The circumstances which convinced the learned Judges to arrive at the conclusion that the accused was guilty can best be stated in the learned Judges own words :‑
"The appellant was found to have two severe wounds caused with a sharp‑edged weapon on the dorsum of one of his hands, he was arrested and led the investigating officer and other persons to a place in the field of his brother where he pointed to a spot from which was disinterred a gunny bag containing several clothes including a chaddar of Muhammad Ashraf which was all stained with human blood. On the 3rd Novem ber the appellant pointed out a place in the cattle shed of his brother from where a knife having human blood on it was recovered. The bag which Muhammad Ashraf had tied to his bicycle when he left was recovered at the instance of the appellant from a bush on a canal minor. The bicycle itself was recovered from the canal about 2,000 karams lower down from the spot where its trail had ended on the canal bank."
On these grounds the learned Judges arrived at the conclusion that the appellant was connected with the murder despite the fact that the dead body of the deceased was never found.
14. The circumstances brought upon this record clearly connect the accused with the murder as well as with the rape. We, therefore, have no hesitation whatsoever in upholding the convic tion of the accused‑appellant on both the charges. 15. It is then argued that the accused being 16 years of age deserves this much leniency that he should be given the lesser penalty. The act of the accused is brutal in the extreme and dastardly. Lesser penalty in the case of raw youth is given but only when they commit the offence under the influence of some other person but not when it is an independent act of their own and is extremely heinous in nature as it is in this case. In our view the accused must be punished with death. We, therefore feel equally unhesitant in confirming the death sentence. The appeal fails and is hereby dismissed.
I agree with my learned brother that the appellant's conviction and sentence must be upheld. I would, however, like to make a few observations about the criticism by my learned brother of the judgment in Nazir v. The State (P L D 1960 Lah. 189).
2. In the case of Nazir v. The State, after careful consideration of the evidence on record, Abdul Aziz Khan, J. and I reached the conclusion that the extra‑judicial confession before the Lambardar having been obtained by holding out promise, must be ruled out, and that as the prosecution had failed to establish that at the time of making the subsequent extra‑judicial confes sion before another person, two hours later, the impression caused by the earlier inducement had been removed, the second confession must also be ignored.
3. We were thus left with the recovery of the deceased's head from a watercourse at the instance of the accused and the blood‑stained sickle and the accused's garments. These discoveries were, in our opinion, not sufficient to hold that it was Nazir and nobody else who had committed the murder. There were circumstances in the case to show that the head might have been severed after the murder had been committed. We were influenced by the fact that Nazir might just as well have used the sickle in severing the head after the murder by someone else, in order to cause the disappearance of the evidence of murder. His clothes might have become stained in the process. Could it be held in such a situation with judicial certitude that such hypothesis would have been incompatible with the accused's innocence of the actual murder 7 I would with all respects to the view taken by my learned brother Shafi, J., answer the question posed by me in the negative. In a case of circumstan tial evidence where two interpretations are possible, it is obviously not right to adopt the interpretation which is unfavour able to the accused in preference to the other which is favourable to him, unless there is some specific reason which justifies the adoption of the unfavourable interpretation [See In re Kanaka Sabai Pillay (A I R 1940 Mad. 1)]. Sarju Parshad v. Emperor (25 I C 625) also supports this view. In this case a Division Bench held: "Where circumstances of a case point to the conclusion that the accused committed the offence, but there is also a reasonable probability compatible with his innocence, there is no sufficient justification for the conviction of the accused."
4. I need offer no comments on the judgment of the Supreme Court in the cases referred to by my learned brother. Each case of circumstantial evidence obviously depends upon its own peculiar facts, and it would, therefore, be presumptuous on my par to say anything about the justness of the findings of their Lord ships of the Supreme Court in those cases. They were rightly decided on their own facts. It is an accepted principle of judicial practice that each criminal case has to be decided with regard to the particular facts disclosed in evidence. In Qutba v. The Crown (PLD1954FC197) Abdul Rashid, C. J., observed as follows:‑--
"Both for this Court as well as for the Courts subor dinate to it, it is sufficient that its judgments should be understood as laying down the law only in relation to the facts found in such judgments. Of necessity, the proposi tions which it is obliged to enunciate are subject to two qualifications, and where these are not expressly stated, they must be derived from the facts found."
5. In the present case, if the conviction of the appellant had depended entirely upon the extra‑judicial confession before Amir Khan Lambardar, I for one would have had no hesitation in acquitting him, but I agree with my learned brother that the circumstantial evidence against the appellant referred to by my learned brother, was by itself overwhelming and entirely incompe tible with leis innocence. The appellant was the last person seen with the unfortunate victim. He led the witnesses to the place where the dead body was found lying. The clothes recovered from his person had seminal stains on them. Similarly the body and the garments of the victim were found stained with semen. An injury on the appellant's thigh points to a struggle between him and the victim while attempting to commit rape. These factors are by themselves sufficient to establish his guilt. There fore, I have no hesitation in agreeing with my learned brother that there is no reason for interference with the conviction and the sentence of the appellant which must, in the brutal circum stances of the case, be confirmed.
A.H. Appeal dismissed
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