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Criminal Appeal No. 97 of 1959, decided on 1st October 1959.
Unsafe to base conviction on‑Hazardous to convict unless precise words are reproduced by witness.
It is unsafe to base anybody's conviction on an oral con fession because human memory being such, no human being can be expected to recall exactly what was stated to him by the accused person and unless the precise words are there, the conviction based on such confession would be hazardous in the extreme.
S. 24‑"Person in authority" Test to determine‑Accused's belief, in good faith, though erroneous, that a person has authority in the matter of investigation of his offence or his arrest‑Such person is a person in authority qua accused‑Lambardar‑Several Lambardars‑Persons in authority.
The expression "person in authority" is nowhere defined. The test would seem to be whether the person to whom confession is made holds such a position that he can be said to have something to do with the investigation of the crime or the arrest of the accused or possess some other authority in the matter. If an accused person believes in good faith, though erroneously, that a person is possessed of any authority in the matter, then that person would be a person in authority qua him within the meaning of section 24 of the Evidence Act, regardless of the fact whether in actual fact he possesses that authority or not.
Lambardars are important persons in the village and are positively the persons in authority within the meaning of section 24 of the Evidence Act.
A Sarbrah Lambardar is as much a person in authority as the Lambardar.
Muhammad Yar v. The Crown A 1 R 1922 Lah. 263 ref.
S. 24‑"Inducement" proceeding from "person in authority" ‑Sarbarah Lambardar telling accused "If you tell me the truth I would try to save you"‑Held to be inducement covered by section 24 : [Mutasadi v. Emperor 12 1 C 642 ; Karam Singh v. Emperor 34 I C 642 and Zeta v. Emperor 37 1 C 314 ref.]
Recovery, of bloodstained earth, quilt and strings of a cot from accused's quarter‑Not by themselves enough to link accused with murder.
Cannot form basis of conviction for major charge such as murder.
S. 27‑Dead body not recovered from place in canal pointed out by accused but from under bridge about 50 karams away‑Body not deemed to have been discovered at instance of accused.
Raja Hassan Akhtar and Kh. Abdul Rashid for Appellant.
M. Z. Kitchlew for A.‑G. for Respondent.
Date of hearing: 1st October 1959.
Noor Muhammad (P. W. 8) son of Mian Khuda Yar of Chak No. 391/G. B. is the Sarbrah Lambardar of his elder brother, Haji Jamal Din, who, on account of his old age, is unable to perform the duties of his office which include both police and fiscal duties. On the 12th of March 1958, at about 11 a.m., the aforementioned Noor Muhammad met Rana Ghulam Jilani, A. S. 1. (P. W. 12), at Chak No. 410/G. B., situated at a distance of about half a mile from Chak No. 391/G. B. and reported to him that one Muhammad Alam, gangman, lived in his Chak along with his wife Mst. Sheedan. About ten days ago Muhammad Alam circulated the news in the village that Mst. Sheedan had disappeared. As Mst. Sheedan was a woman of loose character, therefore, the people of the village suspected some foul play. He had, therefore, sent for Muhammad Alam to his dera in presence of Zubair and Haq Nawaz (P. Ws. 10 and 11 respectively) and had enquired from him as to what had happened to his wife, Muhammad Alam first appeared to be reluctant to give any information, but then after some interrogation and assurance that he would be saved, he admitted that ten days ago he had killed his wife by striking her on her temple with a danda and strangulating her and thereafter throwing her dead body in Tandlianwala Canal after tying her up in a sheet of cloth. Rana Ghulam Jilani (P. W. 12) recorded the statement of Noor Muhammad and sent it to Police Station Tandlianwala situated at a distance of about three miles from the scene of the alleged occurrence where the case was registered. He himself proceeded towards Chak No 39l/G. B , where he found Muhammad Alam present in the dera of Noor Muhammad in the custody of Sher Muhammad (P. W. 5) and Zubair (P. W. 10). He arrested him. On personal search of the accused a key was recovered from the pocket of his shirt. The accused is then alleged to have led the A. S. I. to Rajbah Tandlianwala and pointed out a place where he said that he had thrown the dead body. The body was, however, not found there. Rana Ghulam Jilani as well as Noor Muhammad, Zubair and Haq Nawaz, prosecution witnesses, and the accused then walked along the bank of the canal for a distance of about 50 karams until they reached a bridge underneath which they discovered the dead body of a woman lying stuck up in bricks. It was visible to the naked eye and was not tied up in chadar. The dead body was taken into possession by the A. S. I. and after preparing the injury statement and the inquest report, it was despatched to the mortuary. The accused then led the A. S. I. to his house which was locked. It was opened by the key recovered from the possession of the accused. From inside .the house the A. S. I. took into possession a danda (Exh. P. 3), a chadar (Exh. P. 4), a quilt (Exh. P. 6) and a cot, the ban of which was taken into possession because it appeared to be stained with blood. All these articles were sent to the Chemical Examiner and the Serologist. The earth taken from the house of the accused, the scraping from the ban and the quilt were found to be stained with human blood.
2. The autopsy on the dead body was performed by Dr. Rahmat Ullah. In his opinion, the death had taken place about nine or ten days before. The rigor mortis was absent and the body was in a state of decomposition and sponification. It was swollen. The eyes were closed and the mouth was open. Bloodstained fluid was coming from the nostrils and mouth. Epidermis had fallen off from some parts of the body, particularly from hands, feet, forearm and legs. The face was completely unidentifiable. The body was covered with sand. It had a shirt, an underwear, and trounsers on it. There were also seven blue coloured, glass bangles on her left wrist. No mark of injury was visible on any part of her body, but on removing the scalp which was ecchymosed in the left side of the head in its middle there was a linear fracture, 31' long, of the middle of the left parietal, 2 " from the medial line in the antero‑posterior direction as shown in the diagram attached with the post‑mortem report. On removing the brain a cracked fracture of the left middle fossa of the base of the skull was discovered. The left forth and fifth ribs were fractured. Stomach contained about two ounces of digested food. Death, in the opinion of the doctor, was due to injury to the brain as a result of the fracture of the vault and base of the skull caused by blunt weapon. As the body was in the state of decom position and sponification therefore no definite opinion could be given, but the possibility that the deceased was also strangulated could not be excluded.
3. The accused was challaned and in due course committed to the Court of Session where the evidence was given against him, apart from the doctor and the formal witnesses, by Sher Muhammad (P. W. 5) and Abdul Ghani (P. W. 6) both of whom are alleged to have identified the body of the deceased, Muhammad Hussain (P. W. 7), the co‑gangman of the deceased, Noor Muhammad (P. W. 8), Zubair (P. W. 10), Haq Nawaz (P. W. 11) and Rana Ghulam Jilani (P. W. 12). In the Court of the committing Magis trate the accused denied the charge and stated that it was abso lutely incorrect that he had quarrelled with his wife Mst. Sheedan a night previous to her disappearance. In fact he said that she was not with him at all on the alleged night. According to him an unidentified dead body was recovered by the villagers and due to enmity he was charged for having murdered her. He alleged that his wife had gone to her mother since long and he did not know her whereabouts. In the Court of Session he struck to his earlier statement and added that the police officer did recover a body from near the bridge and he asked him if it was the body of his wife to which he replied in the negative. He denied that he led the police officer to his quarter or any blood‑stained articles were recovered therefrom. He stated for the first time in the Court of Session that he was married to one Mst. Khurshid Begum, daughter of Sardar Khan, of Chak No. 644/G. B. She died after his arrest in this case. He had no other wife by the name of Mst. Sheedan. He produced a dower deed relating to his marriage with Mst. Khurshid Begum and also produced a postcard received by his brother when he was in jail informing him about the death of Mst. Khurshid Begum. He also produced a copy of the death register showing the death of Mst. Khurshid Begum. The four assessors who assisted the learned Sessions Judge at the trial unanimously found the accused not guilty. The learned Sessions Judge, however, disagreed with the assessors, and finding Muhammad Alam guilty under section 302 of the Pakistan Penal Code, sentenced him to death. He appeals against his conviction and sentence, the latter of which is also before us for confirmation.
4. The first question on which lengthy arguments have been addressed to us was about the identity of the dead body alleged to have been recovered from under a bridge at a distance of about two and a half squares from Chak No. 391/G. B. at the instance of the accused, in the presence of Sher Muhammad (P. W. 5), Noor Muhammad (P. W. 8), Zubair (P. W. 10), Haq Nawaz (P. W. 11) and Rana Ghulam Jilani (P. W. 12). The accused denied that it was the dead body of his wife. He also denied, though he seems to have admitted it in the Court of the committing Magistrate, that his wife's name was Mst. Sheedan. But then the difference between the two names is really of very little importance because Khurshid when abbreviated is generally pronounced as Sheedan. The investi gating officer did not take the trouble of contacting the relations of Mst. Sheedan in order to find out if the dead body recovered from under the bridge was really that of the wife of the accused, Muhammad Alain, or of somebody else. Two absolute strangers to the woman were produced as having identified the dead body as that of the wife of Muhammad Alam. The first witness is Sher Muhammad (P. W. 5). He stated that he identified the dead body from its face and clothes which consisted of red printed shirt and latha shalwar and an underwear. One can understand that the, dead body was identified by the red printed shirt if the witness saw the person wearing it very often and immediately before the death, but it is difficult to understand as to how could the dead body be identified by the latha shalwar which is worn by most woman and a baniyan which is an underwear, visible only to those persons who have the privilege to be too intimate with the woman which Sher Muhammad positively was not. So far as the face is concerned, the doctor was definitely of the opinion that on account of the time which bad elapsed between the death arid the recovery of the dead body it had become quite unidentifiable. Apart from the doctor's statement, it is also clear from the evidence of the second witness who is alleged to have identified the dead body, namely, Abdul Ghani (P. W. 6), that the face was completely unidentifiable. He is alleged to have identified the dead body of the deceased before the doctor at the time of the post‑mortem examination from her clothes. He has not given the details of the clothes, There is thus no data to assess the value of his evidence.
5. The learned trial Court holding that the body was identi fiable by her face made a reference in his judgment to Exh. P. N. which was a letter written by Rana Ghulam Jilani, Assistant Sub‑Inspector, to the doctor asking him if it was possible for Shera‑Chowkidar and Abdul Ghani to have identified the dead body immediately after it was taken out of the water. The doctor had replied to this inquiry in the affirmative. This Exh. P. N. and the note made thereon by the doctor does not seem to have been proved by the doctor when he appeared in the witness‑box. Exh. P. N., therefore, cannot possibly be considered in connection with the witnesses' identification of the dead body. Assuming for the sake of argument that it can be taken into consideration still it only says that the possibility of the deceased being identified immediately after the dead body was taken out of the water could not be excluded. As against this we have the direct evidence of Abdul Ghani (P. W. 6) to which a reference has already been made that the face was not identifiable at all. This evidence must be accepted in preference to the doctor's opinion and held that the dead body was not identifiable from her face.
6. To revert to the identification from clothes neither Sher Muhammad Chowkidar (P. W. 5), nor Abdul Ghani (P. W. 6) knew the woman well. They certainly were not related to her that they should have been able to identify her from the clothes which were certainly not of extraordinary or of unusual character. Abdul Ghani had admitted that this woman along with the accused had come to Chak No. 391/G. B. only a few days prior to the murder and during these days sometimes she appeared in burya and some times without it. During such a short period when they had such few opportunities to see her, it is very difficult to say that these two persons had come to know the woman so intimately so as to be able to identify her from her clothes and from the features what ever were left behind. W e have, therefore, no hesitation in arriving at the conclusion that the evidence of the identification of the dead body as that of Mst. Khurshid Begum or Mst. Sheedan is far from satisfactory and must, therefore, be rejected.
7. The second question canvassed at the Bar is about the extra‑judicial oral confession alleged to have been made by the accused in the presence of Noor Muhammad (P. W. 8), Zubair (P. W. 10) and Haq Nawaz (P. W. 11). All these three persons are very closely related to each other as has been admitted in his cross examination by Sher Muhammad (P. W. 5). Giving evidence on this point, Noor Muhammad stated as follows:‑--
"About nine months ago and I came to know that wife of the accused had disappeared. I searched for her in the neighbouring villages as well. I heard that the husband and the wife used to quarrel very often. After eight or nine days I sent for the accused through Sher Muhammad Chowkidar. After I had sent the Chowkidar to fetch the accused, Zubair and Haq Nawaz came to my dera. The accused come with the Chowkidar. I asked the accused whether he had been able to find his wife. He replied in the negative. 1 then said to the accused that I knew that he used to quarrel with his wife and suddenly asked him whether he had not killed her. He became nervous and the colour of his face changed. I then said to the accused that he should tell me the truth and I would try to save him. The accused then confessed his guilt but he did not give me the details as to how he had killed his wife."
Further on, when he was declared hostile and the Additional Public Prosecutor was allowed to cross‑examine him, he said as under:‑--
"The accused told me while confessing his guilt that he had killed his wife as she did not have good character. The accused further said that he killed his wife, while she was asleep. He struck her near the temple with a danda. The accused next said that he got on to the chest of deceased and throttled her by hands".
8. Sher Muhammad (P. W. 10), giving the evidence about the so‑called confession of the accused‑appellant, stated‑
"Noor Muhammad P. W. asked him as to why he had not made any search for his missing wife. Noor Muhammad told him that he would not be harmed and that he should tell us the truth. The accused said that he had killed his wife and had thrown her in the canal. The accused said that he had killed his wife in his quarter with the help of a danda. He did not tell us as to when was she killed. In fact we did not enquire about the time of occurrence. The accused did not tell us that he had killed his wife in any other manner."
9. The evidence of Haq Nawaz on this point is as follows :‑
"Noor Muhammad P. W. asked the accused why he was not searching for his wife who had disappeared. The accused replied that his wife was in the habit of going away like that and he knew that she would return herself. Noor Muhammad P. W. then said to the accused that his contention was not true and it appears that he had killed his wife. On hearing this the colour of the face of the accused changed a bit. The accused then said that he would disclose the truth provided he was saved. Saying so he told us that he had killed his wife. The accused did not tell us as to how and with what weapon did be kill his wife. The accused did not tell us as to what he had done with the dead body."
10. Now, the details of the talk which took place between the accused and Noor Muhammad given by the witnesses and reproduced above are highly discrepant. It only shows how unsafe it is to base anybody's conviction on an oral confession because human memory being such, no human being can be expected to A recall exactly what was stated to him by the accused person and unless the precise words are there, the conviction based on such confession would be hazardous in the extreme. The extra‑judicial confession of the accused, however, in this case is attacked on more solid and cogent ground. It is argued that it is completely inad missible in evidence under section 24 for the Evidence Act which lays down that a confession made by an accused person is irrele vant 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 suffi cient, 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. In order to exclude an extra‑judicial confession from evidence under this section, the first thing which has to be proved is that the person to whom such a confession was made was a person in authority. The expression "person in authority" is nowhere defined. The test would seem to be whether the person to whom confession is made holds such a position that he can be said to have something to do with the investigation of the crime or the arrest of the accused or possess some other authority in the matter. If an accused person believes in good faith, though erroneously, that a person is possessed of any authority in the matter, then that person would be a person in authority qua him within the meaning of section 24 of the Evidence Act, regardless of the fact whether in actual fact he possesses that authority or not. In the light of these observations then one must see if Noor Muhammad (P. W. 8) can be said to be a person in authority.
11. Lambardars most positively are the persons in authority because they are the most important parts of the investigation machinery in the West Pakistan. That is clear from section 45 of the Criminal Procedure Code which lays down that every village headman, and Lambardar is a village headman, shall forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police station any information which he may possess respecting‑
(a) * * * * * * * * * * *
(b) * * * * * * * * * * *
(c) the commission of or intention to commit in or near such village any non‑bailable offence ;
(d) unnatural death ;
(e) * * * * * * * * * * *
(f) * * * * * * * * * * *
Apart from that the villagers, ignorant and illiterate as they are, believe him to wield immense power with the police officers as well as with the officers having administrative control of the district. Their belief cannot be said to be without foundation because when ever these officers go to a certain village, then the first person who is sent for and taken into confidence is the Lambardar. They in fact put up in his place and have their meals at his expense. If the villagers wish to communicate their grievance to the higher autho rities, then they do so through the Lambardar because he alone has access to them. The Lambardars therefore, are the most important persons in the village and are most positively the persons in authority within the meaning of section 24 of the Evidence Act. This is the view which was taken in Muhammad Yar v. The Crown (A I R 1922 Lah. 263) 'and we respectfully agree with it.
12. The next question is whether a Sarbrah Lambardar is a person in authority. Even the Sarbrah Lambardars are appointed by the Deputy Commissioners and only when the Lambardar is unable to perform his duties, they are to all intents and purposes the Lambardars and perform all the duties and functions of a Lambardar, police and fiscal, under the Punjab Land Revenue Act as well as under the Criminal Procedure Code. There is, therefore, no doubt that Sarbrah Lambardar is as much a person in authority as the Lambardar is. So Noor Muhammad D was a person in authority.
13. The next question which requires determination is as to whether the words or expression to the effect "if you tell me the truth I would try to save you" amount to an inducement sufficient to exclude the confession made in pursuance thereof E from evidence. In our view coming from a person in authority and spoken in that tone these words do convey the accused person that he knows that he is guilty, therefore, if he spoke the truth, that is to say, admitted the guilt, because if he did not confess the guilt, then there is no question of his saving him, then he would be saved otherwise there was a possibility of his being sent to the gallows. The implication is this that as Sarbrah Lambardar he stands in a privileged position of being able to save him. On asking such a question an innocent person is placed in a very embarrassing position. If he does not acknow ledge the guilt, then there is a possibility of his being arrested and prosecuted for the charge of murder, but on the other hand his acknowledgment of the guilt, however untrue it might be, is associated with an attraction too strong to resist that with the help of Sarbrah Lambardar he would be saved. He is to choose between these two positions and make the decision at once. We have no doubt in our mind that placed in such a difficult position he would take the risk of falsely acknowledging the guilt in preference to the other alternative. One has the immediate benefit and the other a remote one and this also depends on luck. Whatever, therefore, the accused stated to the Sarbrah Lambardar when he told him that if he spoke the truth he would try to save him would be in pursuance of the inducement and can very well be untrue. In Mutacadi v. Emperor reported in (12 I C 642) (Punjab Chief Court), admission made by an accused person to a Zaildar after the Zaildar had cautioned him that he would get some benefit from the Government if he spoke the truth was held to be inadmissible in evidence. In Karam Singh v. Emperor reported in (34 I C 642) a confession made by an accused person to a Zaildar in consequence of the latter having dropped a hint to the effect that his own brother had committed a murder but had got off on making a clean breast of the matter was held to be inadmissible in evidence. In Zeta v. Emperor reported in (37 I C 314) (Lower Burma Chief Court), an incriminating ' statement by a‑n accused to a headman in consequence of the later telling him "it was better he spoke the truth because if the other side called witnesses, the truth against him would come out" was held to be inadmissible under section 24 of the Evidence Act. Keeping in view, therefore, the inducement which was held out to the accused by Noor Muhammad and the dis crepant evidence which has come upon the record as to under what circumstances the accused admitted the guilt, we do not think it will be safe to base the conviction of the accused on the so‑called extra judicial confession which, in our opinion is clearly shut out by section 24 of the Evidence Act.
14. The third piece of evidence against the accused is the recovery of the bloodstained articles from his quarter. If the extra‑judicial confession is eliminated, then the mere fact that something lying in the quarter of the appellant was stained with human blood will not link the accused with the murder.
15. The conduct of the accused has influenced the learned Sessions Judge to a considerable extent in arriving at the con clusion that he was guilty of his wife's murder. . He made a reference to the evidence of gangman Muhammad Husain (P. W. 7) that the accused and his wife were always quarrelling and had in fact quarrelled on the 2nd of March 1958, one day before Mst. Sheedan disappeared. His conduct that when he was asked to make a search for his wife he replied that she was in the habit of going away like this and then returning was also taken as an incriminating circumstance against the accused appellant. Muhammad Husain (P. W. 7) has some sort of enmity with the accused because the woman who was eventually married to the accused was first promised to him. All these facts, even if they be considered as correct, would at the most lead to a suspicion against the accused‑appellant, but suspicion, however strong, cannot form the basis of a conviction for such a major charge as the murder.
16. It appears to us that the dead body was not found at the instance of the accused at all and on this point the learned Sessions Judge has also come to the same conclusion. We are not very much convinced by the evidence of Noor Muhammad (P. W. 8) that before the dead body was discovered he sent for Muhammad Alam and enquired from him as to what had happened to his wife and then when he held out a promise to him that he would be saved he made a confession that she had been killed by him in the manner stated by Noor Muhammad in his evidence and the first information report. Muhammad Alam did not belong to Chak No. 391/G.B. Therefore, it was very unlikely that Noor Muhammad (P. W. 8) would have known or attached any importance to the disappearance of the accused's wife if it took place at all. There also appears to be no truth in the statement that he made a search for the missing woman before sending for the accused. Why should he have done it The accused and his wife were new comers in the village. Noor Muhammad hardly knew them. So there was no‑ point in his making a search for her when no foul play in respect of that woman was alleged much less had been established. We are also not very much convinced with his reasons for sending for Muhammad Alam and enquiring from him as to what had happened to his wife. In our view the dead body, which was lying in the canal, was quite visible to the people going on the bank of the canal and was seen by the passers‑by who informed Noor Muhammad about it. This is what has been stated even by Sher Muhammad Chowkidar (P. W. 5). After the dead body was recovered, a conference was held as to who this woman was and who was to be charged if the woman had not died a natural death. A headman and in his absence a Surbrah Lambardar is held responsible to account for the death of a person in his village if caused by violent means. It is possible that there was some talk in the village that Muhammad Alam and his wife were not getting on well and for that reason his wife had left him. So Noor Muhammad and his relations thought fit to place the responsibility of the death of this woman on Muhammad Alam and thus be saved from being harassed by the police. We are also not very much convinced about the truth of the evidence of the A. S. I. when be said .that the dead body was recovered at the instance of the accused. It appears that the dead body had been found before the first information report was made. . The A. S. I. in his anxiety to prove the case against the accused is now trying to perjure himself on this point. In any case, all the witnesses have said that the dead body was not recovered from the place which the accused had shown, but was found to be lying under the bridge at a distance of about 50 karams from it. It is, therefore, wholly wrong to say that the dead body was recovered a t his instance. Considering all the facts, we do not feel inclined to uphold the conviction and the sentence of the accused‑appellant. His appeal is accepted and he is acquitted of the charge. He shall be released forth with.
A.H. Appeal accepted.
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