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Criminal Appeal No. 769 of 1960 and Death Reference No. 9 of 1960 decided on 27th January 1961.
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-----Independent and respectable‑No suggestion of enmity or ill feeling between witness and accused ‑ Testimony whether can be impeached.
Where the witness examined is independent and respectable and there has not been the slightest suggestion of ‑any enmity or ill‑feeling between the witness and the accused, the credit of the witness in such circumstances, cannot be impeached.
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---‑Mere omission to give details of occurrence- Does not discredit witness whose testimony otherwise has been substantially corroborated.
Omission to give details of the occurrence does not in any way discredit a witness who has been substantially corroborated by the first information report which he lodged before the police as well as by his statements in the Committing Court.
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-----‑Not reduced to writing‑May be relied upon
S. 24‑Extra‑judicial confession made after much "persuasion" or "heckling" or persistent question ing but without any promise of gains or threat of evil consequences, before persons not "persons in authority" and corroborated on material particulars by independent witnesses and by proved circum stances‑Confession, held, voluntary and true.
Santokhi Beldar v. King Emperor I L R 12 Pat. 241 ref.
S. 30-How far and in what way confession of an accused can be used against a co-accused.
The statements in confession of an accused, cannot be the basis or foundation of the conviction of a co‑accused, its evidentiary value not being much by itself yet it can certainly be taken into consideration to strengthen the other evidence in the case and to lend an assurance to the same. To hold that it is of no value at all, would be to ignore the provisions of section 30 of the Evidence Act, 1872, the confession is one element in the consideration of the facts proved in the case; it can be put into the scale and weighed with the other evidence. In a proper case, it will have the effect, of turning the scale against a co‑accused. What value would be attached to such confession as against a co‑accused is a matter which will depend upon the facts and circumstances of each case. There may be cases in which such confession may be a decisive factor when considered along with the other evidence.
Bhuboni Sahu v. The King P L D 1949 P C 90; Joygun Bibi v. State P L D 1960 S C 313 and Kashmira Singh v. The State of Madhya Pradesh A I R 1952 S C 159 rel.
Shamsuddin Sarkar v. The State P L D 1949 S C (Pak.) 269 ref.
Abdur Rab fer Appellants.
Abdul Rye Choudhry assisted by Abdul Wadud Malik for the
Appellants Sadek Matbar alias Abdul Majid, Abdul Gani Khalifa and Abdul Halim Molla, along with another person, by the name Razzak Bepari alias Munshi, were tried by Mr. A. S. M. Rashed, Sessions Judge, Faridpur, with the aid of assessors.
All the three appellants before us were charged under sections 302/34 and 407 of the Pakistan Penal Code: Their co‑accused, Razzak Bepari was charged under section 414 of the said Code and was subsequently acquitted.
The facts of the case may be briefly stated as follows :
One Nurul Hoque (deceased), was a resident of a village called Basudia within the Lohajong Police station in the District of Dacca. He had jute business at Narayanganj. P. W. 2 Abdul Awal and one Abdur Rahman Here his partners. In the month of Aswin, 1366 B.S., corresponding to October 1959, the said Nurul Hoque went to a place called Kanaipur Hat for the purchase of jute, along with P. W. 2 Abdul Awal. Kanaipur Hat is in the District of Faridpur. On the 17th of Aswin, 1366 B.S., corresponding to the 4th of October 1959, P. W. 2 Abdul Awal, who as we have already stated, was one of the partners to the business hired a boat from appellant Sadek Matbar at Kanaipur Hat for the purpose of conveying the jute to Narayanganj. The owner of the boat was one Saijuddin Mia who has been examined as P. W. 14 in this case. Appellant Sadek Matbar hired the said boat from the said Saijuddin Mia. Sadek Matna entered into a contract with P. W. 2 Abdul Awal for the carrying of the jute from Kanaipur Hat to Narayanganj and the rate was settled and fixed at Rs. 85 per one hundred maunds of jute that was to be carried. The said Sadek Matbar was the Majhi of the boat, i.e , he was something like the master and head of the crew of the boat which consisted of four other boatmen, namely, appellants Abdul Halim Molla and Abdul Gani Khalifa and two other absconding accused by the name of Nawab Ali and Abdus Samad. At the time when P. W. 2 Abdul Awal hired the boat, appellant Sadek Matbar described himself as Abdul Majid, whereas his real name was Sadek Matbar. Furthermore, he gave his address as Nagarkanda, whereas actually he belonged to a place called Mollar Char. Thus he gave a false name and address to Abdul Awal. When about 271 maunds of jute worth about Rs. 6,000 was loaded into the boat, it left Kanaipur Hat for Narayanganj on the 21st of Aswin, 1166 B.S., corresponding to the 8th of October 1959, at about mid‑day. Nurul Hoque was taken as a passenger in the boat which was scheduled to pass a place called Taltala Khal, near about the house of P. W.2 Abdul Awal, according to the instructions giver to the boatmen.
P. W. 2 Abdul Awal reached home at Basudia on Saturday, the 23rd Aswin, 1366 B. S., corresponding to the 10th of October 1959. On his return to his house he enquired about the boat but found no trace of the same. Abdur Rahman also, in the meantime, returned to his house from Narayanganj and met Abdul Awal (P. W. 2) in the afternoon of that very day. On enquiry Abdul Awal came to know from Abdur Rahman that the boat loaded with jute and carrying Nurul Hoque as a passenger did not in fact, reach Narayanganj. Abdul Awal then began to search for the boat. He searched for the same in various places and went to Nagarkanda which was the address given by Sadek Matbar. He did riot find any trace of the appellants or the boat at Nagarkanda. Thereupon he went about to various other places in search of the boat. While returning from Daulatpur in the District of Khulna, where he had gone in the course of his search, he got into a steamer called "Mekala" on Thursday, the 15th of October. 1959, in the evening. This would correspond to the 28th of Aswin 1366, B. S. The steamer was bound for a place called Char; Muguria. On the following morning, that is, on the 16th of October 1959, he found appellant Abdul Halim Molla in the same steamer. He narrated the incident, which has been described by us, to the passengers of the steamer and with their help he secured' the person of appellant Abdul Halim Molla who was arrested and detained. On persistent questioning by the passengers appellant Abdul Halim Molla made a confession with regard to his guilt and also implicated the four boatmen, including, appellants Abdul Gani Khalifa and Sadek Matbar.
Appellant Abdul Halim Molla stated that, after leaving Kanaipur Hat on Thursday (which will be Thursday. the 21st of Aswin, 1366 B. S., corresponding to the 8th of October 1959), they stopped near a place called Choudhurir Hat on tire night following Friday (This would be the 22nd of Aswin 1366 B. S., corresponding to the 9th of October 1959). Nurul Hoque went off to sleep after taking meal, and while he (Nurul Hoque) was asleep in the boat, appellants Sadek Matbar and Abdul Gani Khalifa strangled Nural Hoque with the help of a rope. Accused Nawab Ali pressed Nurul Hoque by sitting on the chest and he also said that he caught the legs of Nurul Hoque and pressed the same whereas accused Samad pressed the mouth at the time of strangulation. Thus, they all jointly killed Nurul Hoque by strangulation. He also stated that, after killing Nurul Hoque. they opened the abdomen of Nurul Hoque with a Bati (a sort of instrument used in kitchen for cutting fish, vegetables and meat) and drew out the ‑intestines. Thereafter they tied the legs of the deceased Nurul Hoque to a detached anchor of the boat with a rope and dropped the dead body into the river Arial .Khan near the Baliar Char.
Abdul Halim Molla further disclosed that appellant Abdul Gani Khalifa was travelling in the said steamer. Upon a search in the steamer, Abdul Gani Khalifa was also secured and arrested, Abdul Gani Khalifa, when pressed by the passengers, also confessed his own guilt and stated that at Choudhurir Hat, while Nurul Hoque was asleep in the night following Friday, the 22nd of Aswin, they, that is, Sadek Abdul Halim Molla, Nowab Ali, Samad and he (Abdul Gani Khalifa) murdered Nurul Hoque by strangulation with a rope and that thereafter they opened the abdomen of deceased Nurul Hoque, removed the intestines and dropped the dead body into the river Arial Khan with the legs of the deceased Nurul Hoque tied by a rope to a Gerafi (anchor).
Both appellants Abdul Halim Molla and Abdul Gani Khalifa further stated that the boatmen left with the jute for Mollar Char where they unloaded the jute from the boat and re‑loaded the same into two boats. Subsequently they carried the boats to Daulatpur in the District of Khulna and disposed of the jute to Ispahani Company and U. T. Company. They further stated that one Razzak (acquitted accused) was with them when they carried the jute in two boats.
Appellant Abdul Halim Molla furthermore disclosed the true name of Sadek Matbar, which was not Abdul Majid, the name supplied to P.W. 2 Abdul Awal.
The two confessing Appellants were detained in the steamer and, at about 10‑30 in the morning of Friday, the 29th of Aswin 1366, B. S., they were handed over to two constables on duty at Sindhia Ghat. The said constables then took the appellants Abdul Halim Molla and Abdul Gani Khalifa to a police outpost and produced them before an Assistant Sub -Inspector of Police. P. W. 2 Abdul 4wal, who had accompanied the party lodged a first information report which was recorded by the said Assistant Sub‑Inspector of Police who forwarded the two accused persons under arrest to Sadarpur Police Station, in a boat, escorted by the two constables. Abdul Awal (P. W. 2) also accompanied them.
The next day i.e. on Sunday, a Sub-inspector of Police, accompanied by P. W. 2 Abdul Awal and confessing accused.; namely, appellants Abdul Halim Molla and Abdul Gani Khalifa, left for Choudhurir Hat in a boat and reached there at about 8‑30 a.m. Both the accused persons made certain statements and led the police officer and his party to a spot in the river Arial Khan near Baliar Chat where the boat was stopped at a place pointed out by the two confessing appellants. Appellant Abdul, Gani Khalifa then dived into the river, appellant Abdul Halim Molla also followed Abdul Gani Khalifa and dived into the river. Both of them then lifted up a dead body with a Gerafi (anchor) tied with a rope to its legs. The dead body was recognised and identified to be that of Nurul Hoque by P. W: 2 Abdul Awal and others. Many villagers of the locality also assembled at the post where the dead body was lifted. A cousin of P. W. 2 Abdul Awal, by the name of Salam, and another co‑villager named Zafar also arrived there in a boat. in search of Nurul Haque. They also identified the dead body.
Nurul Hoque used to wear a tabiz (talisman) on his right arm. The talisman was found on the said arm of the dead body when it was recovered from the bed of the river. The same has been produced in Court and maiked as Exh. I in this case. The underwear on the body of Nurul Hoque was also identified and marked as Exh. III. The Gerafi (anchor), which was tied to the legs of the deceased with a rope, has been identified by the owner of the boat and has been marked as Exh. II and the rope as Exh. IV.
After the recovery of the dead body of Nurul Hoque, P. W. 2 Abdul Awal and others found marks of strangulation round the neck of the deceased; and furthermore it was found that the abdomen was cut open and that there were no intestines within it.
The police officer seized various alamats and forwarded the dead body to the Faridpur morgue for post‑mortem examination.
P. W. 18 Mohammad Taimur Hossain, an Assistant Sub- Inspector of police, attached to Bhanga Police Station, seized the boat from one Saijuddin Mian (P. W. 14).
The Officer‑in‑Charge of Daulatpur Police Station seized about 116 mds. 11 srs. of jute from the godown of Ispahani Company under a seizure list. One Aminuddin Chokdar (P. W. 13) a broker in jute, has testified that the appellants had approached him at Daulatpur in order to sell jute, but inasmuch as the appellants could not produce the jute licence the transaction could not be effected.
Upon completion of the investigation, appellants were committed to the Court of Sessions where they were charged, as sated above. Two other co‑accused were still absconding when tile trial 'of the appellants commenced and, therefore, the trial proceeded without them.
All the appellants pleaded not guilty to the charges which were framed against them. Their case is, that the prosecution case is a myth and that they have all been falsely implicated in this case. With regard to the aforesaid confession alleged to have been made by appellants Abdul Halim Molla and Abdul Gani Khalifa, both of them virtually denied having made any such statement. On their behalf a suggestion was made to P. W. 2 Abdul Awal to the effect that appellants Abdul Halim Molla and Abdul Gani Khalifa were beaten in the steamer. No such suggestion was, however, given to the other witnesses before whom and upon whose questionings the statements were alleged to have been made. In the statements made in the examination of the accused under section 342 of the Code of Criminal Procedure no such case was put forward by the appellants themselves.
The Assessors were unanimously of opinion that the appellants were guilty of the charges framed against them.
Learned Sessions Judge, on a discussion and appraisal of the evidence in this case, came to a conclusion that the charges against the appellants have been conclusively brought home against them. Agreeing with the unanimous opinion of the Assessors, he, therefore, convicted the appellants accordingly and imposed a sentence of death on all the three appellants under section 302/34 of the Pakistan Penal Code. He further sentenced them all to suffer rigorous imprisonment for a period of seven years each under section 407 of the said Code and to pay a fine of Rs. 6,000 each, in default, to suffer rigorous imprisonment for a further period of eighteen moths each.
This appeal is directed against the conviction of the appellants and the sentences imposed on them, as stated above.
Along with the appeal we have also heard the reference made to this Court by the learned Sessions Judge under tie provisions of section 374 of the Code of Criminal. Procedure for the confirmation of the sentences of death passed on each of the appellants.
This judgment will dispose of the appeal as well as the reference.
Before us Mr. M. A. Rab appeared on behalf of the condemned appellants. He has taken us through the entire evidence in this case and the judgment pronounced by the learned Sessions Judge. Mr. Rab, who has ably argued the case on behalf of the appellants before us, has pressed the following points :
(1) That, so far as appellants Abdul Halim Molla and Abdul Gani Khalifa are concerned, the confession made by them should not be relied upon by this Court inasmuch as it was not committed to writing and there are discrepant versions of the same given by witnesses. It was also contended that the confession does not appear to be voluntary.
(2) That, with regard to the appellant Sadek Matbar, the said confession stated to have been made by the other two appellants is hardly of any value ; his conviction must, of necessity, therefore, depend upon the direct, evidence of other witnesses in this case.
It was argued that, minus the confession alleged to have been made by the co‑appellants, there is hardly enough evidence to support the conviction of the appellants under section 302/34 of the Pakistan Penal Code.
(3) That the conviction of appellants Abdul Halim Molla and Abdul Gani Khalifa under section 407 of the Pakistan Penal Code cannot be sustained inasmuch as it has not been established that they were in any manner entrusted with the jute that was loaded in the boat.
With regard to the conviction of appellant Sadek Matbar under this section, Mr. Rab has very rightly refrained from addressing any argument before us.
Before entering into a discussion of the evidence, we would like to observe that all the witnesses, who have been examined in this case, are independent and respectable witnesses. There has not been the slightest suggestion of any enmity or ill‑feeling between them and the appellants and the learned Advocate for the appellant also, under these circumstances, frankly conceded that he could not impeach the credit of the witnesses examined in this case. He has strenuously argued that the evidence is not enough to justify the conviction of the appellants.
With regard to the question that deceased Nurul Hoque was murdered and that his body was thrown into the river Arial Khan, there is overwhelming evidence which has not at all been challenged before us. The said evidence, coupled with the evidence of the medical man, who has been examined in this case, leaves no manner of doubt, whatsoever, that Nurul Hoque was murdered by strangulation and that his body was thrown into the river Arial Khan.
P. W. 2 Abdul Awal has given evidence stating all the material facts of this case, as stated above. It is not necessary to set out his evidence in extenso. He has stated all the details of the prosecution, case from the stage when appellant Sadek Matbar entered into a contract with him for carrying jute and the deceased Nurul Hoque from Kanaipur Hat to Narayanganj upto the discovery of the dead body of Nurul Hoque in the river Arial Khan at the place pointed out by appellants Abdul Halim Molla and Abdul 6ani Khalifa. He has also given the details of the confession made by the two confessing appellants, as mentioned above.
In cross‑examination he admitted that he did not state in the first information report lodged by him that he had gone to Nagarkanda and that he learnt that no such man by the name of Abdul Majid lived there. This is a very minor omission and of no consequence whatsoever. His attention was further drawn to the first information report, and it transpires that he did net state, while lodging the first information report, that Sadek and Gani Khalifa strangled Nurul Hoque with a rope. Furthermore, he omitted certain other details as to how the deceased was put to death. Similarly, he said that he did not remember whether in the Committing Court Halim stated that he had pressed the legs of Nurul Hoque. It transpires that he did not say so in the Committing Court. He denied a suggestion to the effect that the men in the steamer had beaten Abdul Halim and Gani Khalifa. In the first information report, which he made before the police, as well as in his statements in the Committing Court he did not give the details of the specific part played by each of the appellants in killing Nurul Hosque ; but his evidence in the Sessions Court does not contradict the statements he had made in the first information report or in the Committing Court. Omissions to give the details of the occurrence do not in any way discredit this witness who has, on the contrary, been substantially corroborated by the first information report which he lodged before the police as well as by his statements in the Committing Court. He was not shaken in the heavy cross‑examination, to which he was subjected, on behalf of the appellants. He is a respectable witness and, as we have already observed there has been no suggestion of any enmity or ill‑feeling between him and the appellants. We have no hesitation in accepting his evidence.
P. W. 3 Dr. Z. Abedin held the post‑mortem examination in respect of the dead body of deceased Nurul Hoque. He found a number of injuries on the dead body and also found that the major part of the intestines had been taken out. Amongst other injuries he found one broad ligature mark round the lower part of the neck This was described by him as injury No. (2). According to him, due to high decomposed condition of the body no opinion as to the cause of death could be given. He has also stated that injury No. (2) might be caused by homicidal strangulation.
P. W. 4 Herambo Kumar Chakbraborty was a Duty Inspector of R. S. N. and I. G. N Railway Companies. He was on board the steamer "Mekala". His evidence as to what transpired on board the steamer in the morning of the 16th of October 1959, is inter alia, as follows :
"On my query the two arrested persons first did not disclose anything. On my pressure accused Halim (points out) confessed his guilt and gave out that they had strangled Nurul Hoque to death with rope and threw the dead body in the river Arial Khan at a place farther down to Chaudhurir Hat after opening the abdomen with a Bati and after the legs of the deceased had been tied to an anchor. "Accused Gani (identifies) also confessed the guilt thereafter and gave out that they had killed Nurul Hoque by strangulation with rope, opened the abdomen with a Bati and tied the legs to the; anchor with a rope and threw the dead body in river Artal Khan at a place farther down to Choudhurir Hat. Both of them told that they had killed Nurul Hoque while he was asleep in the night. They also gave out the date of killing and according to my calculation the date would be 9th of October 1959. Golam Mohiuddin and Sudhir Kumar Mondal clerks of the steamer and many passengers were present when Halim and Gani confessed the guilt.
"On our query the accused Halim and Gani gave out their names. They also gave out the names of 3 other boatmen as the persons who were amongst the murderers, but I do not remember their names. Both the accused were then kept under strict guard and under arrest and they were made over to the police on duty at Sindhia ghat."
As we shall see hereafter, this witness too could hardly be shaken in cross‑examination to which he was subject.
The next witness with regard to the confession said to have been made by appellants Abdul Gani Khalifa and Abdul Halim Molla is P. W. 7, Golam Mohiuddin Ahmed who has stated, inter alia, as follows :‑
"Halim (identifies) and Gani (identifies) confessed the guilt. Of them Halim stated that while in the boat loaded with jute, all the five boatmen, including himself killed the Mahajah Nurul Hoque while he was asleep in boat, and opened his abdomen after killing him and threw away, the dead body in the river after tying an anchor to his legs.
Accused Gani also stated confessing the guilt that all the five boatmen, including he, killed the Mahajan Nurul Hoque by strangling him to death with rope round his neck, and opened the abdomen of the murdered, and then dropped the dead body in the river after tying the legs with an ancthor.
They gave out the name of the place where they killed the Mahajan of the boat as well as the name of the place where the dead body was dropped but I do not remember the name of the place and that of the river.
The two accused were made over to police on duty at Sindhia Ghat."
The next witness on this point is P. W. 8 Sudhir Kumar Mondal who has given evidence to the following effect : ‑
"I am a clerk under R. S. N. and I. G. N. Steamer Company. On 15‑10‑59, 1 was on duty in "Mekala" steamer which sailed from Khulna and was bound for Char Muguria of Madaripur.
On 16‑10‑59 in the morning when the steamer left Manikdia Ghat. I came down to the lower flat and fund Abdul Awal (points out Abdul Awal) had already clasped accused Abdul Halim (identified) and inquired, him as to what happened to his brother Nurul Hoque and the boat loaded with jute. He was all the while weeping there. The passengers assembled there. On the query of the passengers and that of our Steamer Inspector Heramba Kumar Chakravarti, Abdul Awal gave out that his brother Nurul Hoque was in the boat with the accused Halim and other Majhis, the boat was loaded with jute but no trace of his brother and that of the boat with jute could be found.
After much persuasion accused Abdul Halim gave out that they were five in number in the boat, such as he himself, Nowabali, Samad, Sadek and Abdul Gani and while they came to Choudhurir Hat they killed Nurul Hoque by strangling him with the help of a rope while he was asleep in the night after which they opened the abdomen and dropped the dead body in the river after tying the legs to an anchor at a place further down to Choudhurir Hat. He also disclosed that accused Gani was also travelling by the same steamer. So, we searched for Gani and arrested him on the identification of accused Halim.
On our query accused Gani (identifies) first did not confess. After much persuasion Gani also confessed the guilt and stated that while they reached Choudhurir Hat by the boat all of them, such as, he himself, Halim, Sadek; Samad and Nawabali killed Nurul Hoque in the mid‑night while he was asleep by strangulation with the help of a rope, and opened the abdomen and then dropped the dead body‑in the river by tying the legs to an anchor.
We then kept both the confessing accused Halim and Gani under arrest. As soon as the steamer reached Sindhia G hat we handed over them to the police on duty there. Awal also accompanied them."
P. W. 4 Herambo Kumar Chakraborty has stated in his cross‑examination that he did not remember whether Halim at all stated the names of the persons who strangled Nurul Hoque with a rope. He has further stated that neither Halim nor Gani gave details regarding the particular part played by each of the five boatmen. Mr. Rab has argued that this contradicts P. W. 2 Abdul Awal who has said that the confessing appellants gave some details about the specific part played by each of the appellants as well as the other accused persons. It will be seen that this witness has stated that the narration took about an hour. This indicates that the confessing appellants must have stated something more than a bare statement that the appellants had participated in the killing of the deceased and that they threw the dead body into the river after opening the abdomen of the deceased. Furthermore, it appears that this witness found both appellants Abdul Gani and Abdul Halim together under arrest, whereupon he heard the statements made by them. It is, therefore, apparent that Abdul Halim had already made his statement which might have been repeated again, because, according to P. W. 2 and P. W. 8, Abdul Gani's presence in the steamer was disclosed by Abdul Halim after he (Abdul Halim) had made his confessional statement. It is, therefore, clear that the evidence of P. W. 4 Herambo Kumar Chakraborty does not contradict the statements made by P. W: 2 Abdul Awal. P. W. 4 Herambo Kumar Chakraborty has further stated in his cross- examination that he did not remember whether he stated to the Daroga that appellant Abdul Gani had stated in his confession that, besides others, accused Nawabali Matbar and Samad Sk. strangled the Mahajan with a rope round his neck. It transpires that he did make such a statement. However, this is hardly any reason why P. W. 1 Herambo Kumar Chakraborty should be disbelieved.
P. W. 7 Golam Mohiuddin Ahmed, in his cross‑examination, has stated that he did not state to the Daroga that accused Nawab and Samad strangled the Mahajan. It appears that before the investigating officer he did say so. We also think that the omission to say so in the trial Court does not discredit the evidence of this witness. This witness as well as other witnesses have no reasons to give false evidence against the appellants.
P. W. 8 Sudhir Kumar Mondal, in his cross‑examination; has stated that he did not hear Abdul Halim and Abdul Gani, specifically stating as to who amongst the boatmen strangled Nutul Hoque with a rope at his neck. Furthermore, he has stated that he does not remember whether he at all stated in the Committing Court that Halim gave out the names of the other Majhis of the boat other than Gani. It appears that in the Committing Court he stated that Abdul Halim confessed that he alone; with other Majhis had murdered Nurul Hoque in the boat. It is thus clear that there is no contradiction between what this witness stated in the Committing Court and his statements in the trial Court. In the Committing Court he has stated that the confessing appellant said that all the boatmen had participated in killing Nurul Hoque, whereas in the trial Court he has stated that in the said confession all the boatmen were named. This witness too has not given such details of the confessional statement as stated by P. W. 2 Abdul Awal. It is significant to note that in his cross‑examination this witness has stated that he left for his duty as soon as tie passengers had started for the search of Abdul Gani and he returned about half an hour thereafter and then heard Abdul Gani confessing his guilt It is quite likely that he might not have heard the full story than was given by the confessing appellants.
Mr. Rab has argued that it will be unsafe to rely on the confessional statements alleged to have been made by the appellants Abdul Gani Khalifa and Abdul Halim Molla inasmuch as such statements were not put down in writing by the persons who heard the confessional statements. The grievance made before us is that we have not got the exact language used by the confessing co‑appellants. We do not think that, in the particular circumstances of this case, there is much substance in this argument. The witnesses, who have given evidence with regard to the confessional statements made by the aforesaid appellants, are credible and respectable witnesses who have no reason to give false evidence against the appellants. It transpires that all the four aforesaid witnesses are consistent in, stating that both the appellants Abdul Gani Khalifa and Abdul Halim Molla in their confessional statements implicated them selves as well as the three other boatmen in the act of murdering the deceased Nurul Hoque by strangulation with a rope. All the four witnesses are unanimous with regard to the following particulars in the confessional statements, which they claim, were made in their presence :
(1) That the deceased Nurul Hoque was .in the boat with them when the occurrence took place.
(2) That on the night following Friday (the 22nd Aswin) the deceased was killed. ,
(3) That the place of occurrence is Choudhurir Hat.
(4) That Nurul Hoque was murdered by strangulation with a rope.
(5) That the abdomen of Nurul Hoque was cut open by a Bati'.
(6) That the legs of the deceased we're tied with a rope to an anchor of the boat.
(7) That the dead body was thrown into the river Arial Khan some distance away from Choudhurir Hat.
(8) That all the five boatmen, including the appellants, participated in the murder and in the various acts done thereafter.
There is no reason to disbelieve that the appellants Abdul Gani Khalifa and Abdul Halim Molla made confessional statements in the presence of the said witnesses and that in such confessional statements the aforesaid appellants have stated the particulars which we have already enumerated above.
P. W. 2 Abdul Awal was directly affected by the occurrence and it is, therefore, natural that he would hear and remember all the details of the incidents narrated by the confessing appellants.
Mr. Rab has further argued that we should not accept the confessional statements made by the said appellants because they do not appear to be voluntary statements.
On this point Mr. Hye has drawn our attention to the provisions of section 24 of the Evidence Act which make confessional statements irrelevant, if they are caused by inducement, threat or promise proceeding from "a person in authority."
Learned Advocate for the State cited a decision of a Full Bench of the Patna High Court in the case of Santokhi Beldar v. King‑Emperor (I L R 12 Pat. 24.1). In the case cited above the Court had to consider an extra‑judicial confession made before a Tahsildar on an inducement and promise given by him to the confessing accused who was a man of no substance.
Courtney Terrell, C. J. quoting section 24 of the Evidence Act observes at page 246 of the report, as follows :‑
"There is no statutory definition of the words "person in authority"; but it is well established that the words, have reference to a person who has authority to interfere in the matter under enquiry. The section excludes a confession procured by inducement, threat or promise having reference to the charge, only when the inducement, threat or promise is sufficient to give the accused person reasonable grounds for supposing that by making it he would gain any advantage or avoid any evil in reference to the proceedings against him. When the inducement, etc. is by a person who has no power to interfere, in the matter under inquiry, it is, in our, opinion, not reasonable for the accused to suppose that he will benefit by confessing. The reported cases on the point show that, generally speaking, a "person in authority" within the meaning of section 24 is one who is engaged in the apprehension, detention or to examine him. Abdul Aziz is a Tehsildar of the Banaili Raj and appears to be a person of some influence in, the village but he had no interest in the prosecution of Santokhi other than the interest which every citizen has in the maintenance of law and order ; and although the confession was made in consequence of the questions put and the promise made by him, he was not a person empowered to examine Santokhi or who could legitimately influence the course of the proceedings."
It will thus be seen that none of the persons before whom the aforesaid confessional statements were made were "persons in authority" within the meaning of section 24 of the Evidence Act. Besides, it does not appear that any of the said persons made any promise to the confessing appellants with a view to induce them to make the said statements or threatened them with evil consequences if they did not confess their guilt. The expression used by them is that after much persuasion' or heckling' or persistent questions the aforesaid persons made the confessional statements. It appears that there is no substance in the suggestion given to P. W. 2 Abdul Awal that the passengers in the said steamer had assaulted the confessing appellants. We have already noted that no such suggestion was given to the witnesses on whose questionings the confessional statements were made. We have further observed that the appellants themselves have not said so either before the Committing Magistrate or in the trial Court when they were examined under the provisions of section 342 of the Code of Criminal procedure. In the Memoranda of appeal submitted to this Court on behalf of the appellants, it appears for the first time that an allegation has been made that the confessing appellants were beaten by the passengers of the steamer. The suggestion given to P. W. 2 Abdul Awal has been denied by him and we think that there is no basis for this suggestion. We cannot hold, on the evidence before us, that the confessing appellants were beaten by the passengers of the said steamer. From the evidence it appears that as a result of persistent questioning by some passengers of the steamer the confessing appellants made their confessional statements. It does not appear that there was any promise of any gain or a threat o evil consequences. The statements alleged to have been made by the appellants are corroborated on material particulars by independent witnesses as well as by the proved circumstances of this case. We have, therefore, no hesitation to hold that the confessional statements made by the appellants Abdul Halim Molla and Abdul Gani Khalifa, as started above, are true. The subsequent retraction of the said confessional statements in the trial Court is immaterial in the light of the facts and circumstances of this case. We have already held that the statements were in fact, made and that they are true.
We shall now consider the other evidence in this case P. W. 5 Mr. S. M. Hossain is a Deputy Magistrate, who held the test identification parade. Before him P. W. 25 Patal Sardar identified appellant Abdul Gani Khalifa as one of the boatmen sitting in the boat with a dao. The said P. W. 25 Patal Sardar also identified Sadek Matbar as another of the boatmen standing in the same boat. P. W. 6 M. L. Barua has given evidence to the effect that P. W. 14 Saijuddin Mia identified the anchor, which was found tied to the legs of the deceased, to be the anchor of the boat belonging to him which was hired by Sadek Matbar. P. W. 14 Suijuddin Mia has given evidence to the effect that appellant Sadek Matbar had hired the boat in question from him and that he is the owner of the said boat. He has further given evidence to the effect that the boat was returned to him, without an anchor, on the 25th of Aswin, 1366 B. S., corresponding to the 12th of October 1959. Mr. Rab has drawn our attention to what has been stated by this witness in a statement recorded under the provisions of section 164 of the Code of Criminal Procedure as well as that recorded by the investigating officer, in order to contradict this witness with regard to the date on which the boat was returned to him on the 25th of Aswin. It transpires that he stated previously that the boat was returned on the 22nd of Aswin. It is evidence that, while making the previous statements, there was some confusion in the mind of this witness because' it was physically impossible for appellant Sadek Matbar to return the boat on the 22nd of Aswin. It has been proved by P. W. 2 Abdul Awal and other independent witnesses that the appellant Sadek Matbar left Kanaipur Hat with the boat on the 21st of Aswin in the afternoon. It transpires from the evidence of P. W. 14 Saijuddin Mia that the boat was returned at Azimnagar within police station Bhanga in the District of Faridpur. Having regard to the geographical position of the two places, it is physically impossible for appellant Sadek Matbar to have returned the boat to P. W. 14 Saijuddin Mia on the 22nd of Aswin, if the said appellant had left Kanaipur Hat with die boat on the 21st shortly after noon, Furthermore, in the trial Court P. W. 14 Saijuddin Mia has stated the date with reference to the day on which the boat was returned. He has stated that it was Monday, the 25th of Aswin that the boat was returned. He was in a better position to give an accurate date by reference to the day of the week on which the boat was returned. We have no hesitation to accept the evidence of P. W. 14 Saijuddin Mia in the Court of Sessions that the boat was returned on the 25th of Aswin. P. W. 14 Saijuddin Mia has also identified the boat as belonging to him, anal we have, already noticed that he identified the anchor as belonging to the boat which was hired from him by appellant Sadek Matbar. P. W. 24 Pre m Ranjan Poddar has corroborated P. W. 2 Abdul Awal in respect of the evidence given by him to the effect that Sadek Matbar had contracted with him to carry the jute, as stated above, form Kanaipur Hat to Narayanganj. He has further corroborated the evidence of P. W. 2 Abdul Awal to the effect that Nurul Hoque left Kanaipur Hat along with the five boatmen, including Sadek Matbar, shortly after midday on the 21st of Aswin. From the evidence of P. W. z Abdul Awal and P. W. 26 A. K. Haldar' it appears that the appellants Abdul Halim Molla and Abdul Gani Khalifa accompanied the police party, who proceeded to search for the dead body of the deceased Nurul Hoque upon certain statements made by the said appellants. They proceeded at Choudhurir Hat to a place in the river pointed out by the said appellants. It also appears that the said appellants dived into the river and produced the dead body of the, deceased which was identified by P. W. 2 Abdul Awal. P. W. I 1 Abdus Salam and P. W. 12 Jafar Ali. The body of the deceased was swollen, but the skin on the face and the body was intact except some places on the head. There was a tabiz (talisman) found on the body, which, according to the witnesses, the deceased was wearing. The underwear of the deceased was also identified by the witnesses as belonging to him. Therefore, there is no doubt as to the identity of the body which was the dead body of Nurul Hoque: The post‑mortem examination of the body was con ducted a day later when it was in a high state of decomposition. But from the medical evidence it appears that there were symptoms of strangulation which was described as one broad legature mark round the neck. P. W. 22, Abdul Aziz Mia, is also a witness who saw the discovery of the dead body of Nurul Hoque in the river in the circumstances stated above. P. W. 21 Arman Ali is also another independent witness who had seen the discovery of the dead body in the place pointed out by the appellants Abdul Gani Khalifa and Abdul Halim Molla. These witnesses noticed marks of strangulation on the dead body of Nurul Hoque. They found that the abdomen was cut open and that the intestines were missing. They found the legs of the deceased tied with a rope to an anchor of a boat.
Thus they fully corroborate the confessional statement of Abdul Halim and Abdul Gani that the deceased was killed by strangulation with a rope round the neck and that the intestines of the deceased were taken out, and further, that the body was thrown into the river Arial Khan with the legs of the deceased tied with a rope to an anchor. The rope and the anchor have been produced in Court.
We shall now proceed to discuss the evidence of P. W. 13 Aminuddin Chokdar with regard to the attempt made by the appellants to sell the jute. His evidence is as follows :
"I am a broker in jute under United Trading Co. loosely known as U. T. Company.
"I know accused Gani Khalifa, Sadek, Halim (identifies) Samad and Nowab Ali who were not in the dock.
I know them from before. Gani, Sadek and Halim are men of Mollarchar. I belong to Dulkundi in P. S. Bhanga. My house is about three miles from the houses of accused Gani, Halim and Sadek. Towards the end of Aswin before last accused Gani, Sadek, Halim (identifies all the three accused) Nowab Ali and Samad came to our firm at Dulatpur in a boat to sell jute. Three of them, such as Gani, Halim and Sadek represented to me that they had pucca 80/85 mds. of jute, and offered to sell them. They also demanded Rs. 50 in advance. I called for the jute licence. A little after all the said three accused returned and reported to me that the licence was with the Bepari who had already left for his house. I did not advance the money as the accused could not produce the licence.
Our godown would be about quarter of a mile from the godown of the Ispahani Co."
This witness stated that it was only on one occasion in the last part of Aswin that the appellants approached him for the sale of the jute. In cross examination he said that he stated to the Daroga that again on the 24th of October 1959, appellant Sadek Matbar and the acquitted accused Razzak met him after producing a jute licence belonging to one Rasik Lal Mitra for the sale of their jute and he helped them in selling 77 maunds of jute: We do not think that this is enough to descredit the aforesaid witness, who is an independent and respectable witness and has no reason, whatsoever, to falsely implicate the appellants. Whether the appellants or some of them approached the witness once or twice, the fact that is material is that towards the end of Aswin the appellants attempted to sell the jute in the District of Khulna at Daulatpur. This is corroborated by the confessional statements made by Abdul Halim and Abdul Gani, as stated by P. W. 2 Abdul Awal. This witness has further stated that he knew the appellants all of whom belong to Mollarchar. Further more, he described appellant Sadek Matbar by that name and not by the name of Majid which was the name given by Sadek Matbar to P. W. 2 Abdul Awal. This is also corroborated by the confessional statement of Abdul Halim Molla, as narrated by P. W. 2 Abdul Awal.
We will leave out of our consideration the evidence of P. W 17 Lal Mia, a hotel keeper, who proves the presence of appellant Sadek Matbar at Daulatpur in the District of Khulna shortly after the murder of the deceased Nurul Hoque. Although we do not think that there is any good reason for disbelieving this witness, but as a matter of caution, we would not consider his evidence inasmuch as the trial Court did not place any reliance on this witness.
We need not here discuss the evidence of other witnesses who have testified to the attempted sale of jute to Ispahani Company, which was stored in the godown, and the seizure of such goods from the said godown.
We consider all the aforesaid witnesses to be independent and respectable witnesses who have no reason to give false evidence against the appellants. They fully corroborate P. W. 2 Abdul Awal and also corroborate the confessional statements of Abdul Halim Molla and Abdul Gani Khalifa in material particulars. From the evidence of the aforesaid witnesses it transpires that on the 21st of Aswin appellant Sadek Matbar along with appellants Abdul Halim Molla and Abdul Gani Khaltfa and two other absconding accused left Kanaipur Hat, on a boat, in the afternoon of 21st of Aswin with a certain quantity of jute with deceased Nurul Hoque as its passenger. The stipulated destination of the boat was Narayanganj. The recovered dead body of Nurul Hoque showed that he was murdered by strangulation. It was found that his abdomen was opened and that the intestines were taken out. His body was, thrown near Choudhurir Hat in the river Arial Khan with an anchor tied to the legs. The body was recovered by appellants Abdul Halim Molla and Abdul Gani Khalifa from a place in the river pointed out by them and it was identified to be the body of Nurul Hoque. Furthermore, from the evidence of P. W. 13 Aminuddin Chokdar it transpires that the appellants made an unsuccessful attempt to dispose of the jute at Daulatpur, Khulna, shortly after the murder of the deceased Nurul Hoque. The boat which was returned to P. W. 14 Saijuddin. Mia was found without an anchor. The anchor, which was found, tied round the legs of the deceased, was identified to be the anchor of the boat which was let out to Sadek Matbar by P. W. 14 Saijuddin Mia. All these particulars together with the con fessional statements made by the appellants Abdul Gani Khalifa and Abdul Halim Molla conclusively and fully established the guilt of the appellant Abdul Gani Khalifa and Abdul Halim Molla in respect of the charge framed against them under section 302/34 of the Pakistan Penal Code. We, therefore, hold that they were both rightly convicted under the said section.
We shall now proceed to discuss the case against appellant Sadek Matbar. We have already stated that it was urged on behalf of this appellant that the confessional statements made by appellants Abdul Halim and Abdul Gani, in so far as they tend to implicate this appellant, are of no value. These confessional statements can certainly be taken into consideration under the provisions of section 30 of the Evidence Act. A number of cases were cited before us on this point. Although we have given due consideration to all the cases that were cited at the Bar, we propose to refer in this judgment only decisions of the Privy Council, the Supreme Court of Pakistan and the Supreme Court of India.
It is now well‑settled that a confessional statement of an accused, in so far as it implicates an co‑accused, is of very little value ; but it would not be correct to say that it is of no value whatsoever. There has been at one point of time some divergence of opinion as to what is the exact nature and value of such evidence. This question, however, appears to be well‑settled now.
In the case of Bhuboni Sahu v. The King (LR761A 147:PLD 1949PC90) Sir John Beaumont, delivering the judgment (advice, as it is called) of the Board, has observed, referring to the provisions of section 30 of the Evidence Act, as follows :
"This section was introduced for the first time in the Evidence Act of 1872, and marks a departure from the common law of England. It will be noticed that the section applies 'to confessions, and not to statements which do not admit the guilt of the confessing party. In the present case the Courts in India appreciated this, and ruled out statements made by certain of the accused which were self‑exculpatory in character. The statement of Trinath was, however, a confession. Section 30 seems to be based on the view that an admission by 'an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co‑accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross‑examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession. into consideration and thereby, no doubt, makes it evidence on which the Court may act ; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case ; it can be put into the scale and weighed with the other evidence. Their Lordships think that the view which has prevailed in most of the High Courts in India, namely, that the confession of a co‑accused can be used only in support of other evidence and cannot be made the foundation of a conviction, is correct."
' In the case of Joygun Bibi v. State (PLD 1960SC313) while considering the confession of a co‑accused implicating the appellant, Cornelius, C. J. has observed as follows :‑
"The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether the confession was voluntary, and if so, whether it was true, for to withdraw from a self‑accusing statement, in direct face of the consequence of the accusation, is explicable fully by the proximity of those consequences, and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated. The learned Judges were perfectly right in first deciding these two questions, and the answers being in the affirmative, in declaring that the confession by itself was sufficient, taken with the other facts and circumstances, to support Abdul Majid's conviction. The retraction of the confession wag wholly immaterial once it was found that it was voluntary as well as true. That being the case, no reason whatsoever can be found for the inability felt by the learned Judges in taking the confession into consideration against the co‑accused. It is true that there were no other evidence against Joygun Bibi except the confession of Abdul Majid, then the confes sion by itself, being merely a matter to be taken into consideration, and not having the quality of evidence against Joygun Bibi, it could rightly be held in law that her conviction could not be sustained on the confession alone. The grounds for this conclusion would undoubtedly gain weight if the confessions were also retracted. But in the present case Abdul Majid's confession is by no means the only material in the case to be taken into consideration against Joygun Bibi."
In the case of Kashmira Singh v. The State of Madhya Pradesh (A I R 1952 S C 159) Bose, J, delivering the judgment has observed as follows
"Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way, the confession of an accused person can be used against a co‑accused It. is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Shua v. Tire King 76 I A 147 at p. 155
It does not indeed come within the definition of evidence' contained in section 3 Evidence Act. It is not required to be given on oath, nor in the presence of the accused and it cannot be tested by cross‑examination.'
Their Lordships also point out that it is
obviously evidence of a very weak type‑It is a much weaker type of evidence than the evidence of an opprover which‑is not subject to any of those infirmities.
They stated in addition that such a confession cannot be made the foundation of a conviction and can only be used in "support of other evidence " In view of these remarks, it, would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence Can it be used to fill in missing gaps Can it be used to corroborate an accomplice or, as in the present case, a witness, who though not an accomplice, is placed in the same category regarding credibility because the Judge refuses to believe him except in so far as he is corro borated
"In our opinion, the matter was put succintly by Sir Lawrence Jenkins in Emperor v. Lalit Mohan 38 Cal. 559 at p. 588, where he said that such a confession can only be used to "lend assurance to other evidence against a co‑accused" or to put it another way as Reilly, J. did in In re Periyaswami 1foopan; 54 Mad. 75 at p. 77.
the provision goes no further than this where there is evidence against a co‑accused sufficient, if believed, to support his conviction, then the kind of confession described in section 30 may be thrown into the scale as an additional reason for believing that evidence.'
Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid.
But cases may rise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to land assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."
It seems that the Supreme Court of India has, perhaps, travelled a step further than the view expressed by the privy Council and the Supreme Court of Pakistan, although the opinion expressed by it is substatially the same as that of the Privy Council and the Supreme Court of Pakistan.
However, it is clear from the above decisions that it is now well‑settled that the statements, in a confession of an accused cannot be the basis or foundation of the conviction of a co‑accused Its evidentiary value is not much by itself ; but it can certain be taken into consideration to strengthen the other evidence in the case and to lend an assurance to the same. To hold, as has been contended before us, that it is of no value at all, would be to ignore the provisions of section 30 of the Evidence Act. To quote the Privy Council, "The confession is only one element, In the consideration of the facts proved in the case ; it can be put into the scale and weighed with the other evidence." We may add that, in a proper case, it will have the effect of turning the scale against a co‑accused. What value would be attached to such confession as against a co‑accused, is a matter which will depend upon the facts and circumstances of each case. There may be cases in which such confession may be a decisive: factor when considered along with the other evidence that is adduced.
In this particular case we have sufficient and direct evidence of independent witnesses which establishes the guilt of appellant Sadek Matbar and which circumstantially implicates him in the murder of Nurul Hoque. The chain of circumstances which have been proved by such direct evidence may be enumerated as follows :
(i) Appellant Sadek Matbar hired the boat in question from P. W. 14 Saijuddin Mia. It was identified by him and according to the evidence of this witness it was returned to him with one of its missing anchors. This witness has further identified the missing anchor which was found tied o n the body of the deceased Nurul Hoque. The anchor was a part of the boat that was given on hire to Sadek Matbar.
(ii) Sadek Matbar entered into a contract with P. W. 2 Abdul Awal for carrying certain quantity of jute to Narayanganj from Kanaipur Hat in consideration of certain charges with regard to which part payment was made in advance. Sadek Matbar was the person who entered into the said contract and the four other boatmen, including appellants Abdul Halim Molla and Abdul Gani Khalifa, were the boatmen in the said boats. Sadek Matbar also carried the deceased Nurul Hoque as a passenger in the said boat.
(iii) Sadek Matbar gave a false name and address to Abdul Awal. The evidence of Abdul Awal (P. W. 2), P. W. 24 Prem Ranjan Poddar, P. W. 25 Patal Sardar, P. W. 13 Aminuddin Chokdar and P. W. 14 Saijuddin Mia together with the confessional statements made by appellants Abdul Halim Molla and Abdul Gani Khalifa make it clear that the true name of this appellant is Sadek Matbar. The evidence of the aforesaid witnesses also establishes the fact that this appellant supplied a false name and address to P. W. 2 Abdul Awal.
(iv) Sadek Matbar, after loading the jute in his boat, left, with deceased Nurul Hoque, Kanipur Hat where the contract was entered into and it was agreed that the boat would proceed to Narayanganj. Thus the boat started on its journey with the aforesaid quantity of jute and with Nurul Hoque as a passenger in it.
(v) The destination of the boat was Narayanganj and it was further arranged that it would touch a place near the house of P. W. 2 Abdul Awal in transit.
(vi) Sadek Matbar was the carrier of the jute as well as the person of the deceased Nurul Hoque who was a passenger in that boat that was hired by P. W. 2 Abdul Awal.
(vii) Sadek Matbar as a public carrier was responsible for the safe carriage of the jute as well as Nurul Hoque to Narayanganj.
(viii) The boat was not taken to the home of P. W. 2 Abdul Awal according to the instructions given to Sadek Matbar.
(ix) The boat with the jute and deceased Nurul Hoque was not taken to Narayanganj.
(x) Nurul Hoque was murdered by strangulation, in transit, on the river Arial Khan and the body was thrown into the said river with the intestines drawn out and the body tied to an .anchor of the boat with rope. This is established by the discovery of the body of the deceased Nurul Hoque in the river Arial Khan at a place pointed out by the said confessing appellants. It was further discovered that there were signs of strangulation on the neck of the dead body which was also found tied to an anchor with a rope, and furthermore, the abdomen was also empty of the intestines.
(xi) Sadek Matbar participated in an attempt to dispose of the jute in question.
In this connection, Mr. Rab has argued that the identity of the jute was not established. It will be seen that P. W. 13 Aminuddin Chokdar has stated that all the three appellants accompanied by accused Nawab Ali and Sadek Matbar came to Daulatpur and approached him in order to sell jute. This witness describes' himself as a broker in jute under United Trading Company which is also known as U. T. Company. This statement of P. W. 13 Aminuddin Chokdar, which we have no hesitation in accepting, is fully corroborated by the confessional statements made by both Abdul Halim Molla and Abdul Gani Khalifa to the effect that they carried the jute to Daulatpur in the District of Khulna and disposed of the same to Ispahani Company and U. T. Company. This completely fixes the identity of the jute with the jute that was loaded in the aforesaid boat at Kanaipur Hat. P. W. 19 Kazi Bazlur Rahman is a jute broker of the firm Messrs Ispahani Company at Daulatpur. He has stated that on the 15th of October 1954, which would correspond to the 28th of Aswin 1366 B. S., one Abdur kazzak and Abdul Gani Khalifa came to sell jute which was stored in the godown of Ispahani & Co. His further evidence is that no payment was made inasmuch as the said Abdur Razzak could not produce any licence' with regard to the jute. P. W. 9 Muhammad Amin Sirajee, who is a Manager of Messrs M. M. Ispahani Company in the jute purchase section of the said firm at Daulatpur, has also stored that on the 15th of October 1959, 116 maunds and 11 seers of jute was purchased through Bazlur Rahman, who is reported to have stated to this witness that the jute was brought by one Abdur Razzak. Thus from the chain of evidence discussed above; there can be no doubt that the jute, which was at empted to be sold, was the jute belonging to P. W. 2 Abdul Awal and which was loaded in the boat of Sadek Matbar when it left Kanaipur Hat. Such evidence also proves that Sadek Matbar participated in disposing of the jute.
From the aforesaid chain of circumstances the irresistible inference is that, after the boat belonging to this appellant had left Kanaipur Hat towards its destination, he continued to remain in the boat with the jute and 'the said passenger, namely, Nurul Hoque, until the said Nurul Hoque, was mur dered in the circumstances as have been proved as aforesaid. If the appellant Sadek Matbar had left the boat at any point of time, it was for him to establish that fact. It would be noted that all the aforesaid chain of circumstances were put to this appellant in his examination under section 342 of the Code of Criminal Procedure is order to give him an opportunity to explain the same. This appellant merely denied the whole series of evidence that had been given in this case. His defence merely was that he had been falsely implicated. In these circumstances, regard being had to the natural course of events and human conduct, there is no escape from the conclusion that the appellant Sadek Matbar had either participated in the killing of Nurul Hoque or had abetted it. I his appellant was the Majhi and, evidently the head of the crew of the boat. It is he who had contracted to carry the jute and he was also responsible for the safe carriage of Nurul Hoque to Narayanganj. After the murder of Nurul Hoque, he had participated in disposing of the jute at Daulatpur in circumstances which conclusively prove that he had committed criminal breach of trust in respect of the jute. Thus, the proved facts of the case irresistibly connect him with the murder of Nurul Hoque. This inference inevitably follows from the chain of circumstances as stated above, and we are fortified by the provisions of section 114 of the Evidence Act, which reads as follows :
"The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and. public and private business, in their relation to the facts of the particular case."
As indicated above, Sadek Matbar, being a public carrier, undertook to carry in a boat, deceased Nurul Hoque as a passenger alongwith the jute that was loaded in the boat which proceeded its in journey but did not reach its destination. The fact that the passenger was murdered and thrown into the river, in transit, cannot lead to any other inference than this that the carrier, namely, appellant Sadek Matbar, had something to do with the murder of the passenger. The confessional statements of the co‑accused in this behalf clinches the matter and conclusively points to the participation of this appellant Sadek Matbar in murdering Nurul Hoque. We have thus "pat into the scale" against this appellant the aforesaid confessional statements to strengthen and to lend assurance to the natural inferences, which must be drawn from the aforesaid circum stances.
We have already discussed above that the circumstances of this case lead to the inference that Sadek Matbar either facilitated the murder or participated in it. It was open to us to convict him on such evidence under section 302/109 of the Pakistan Penal Code. It. would not have prejudiced him had we done so. Mr. Hye has argued that along with the aforesaid circumstances if the confession is considered, there can be no manner of doubt that Sadek Matbar participated in the murder of Nurul Hoque, as stated in the confessional statements, which have been corroborated by independent evidence on important and material particulars. We feel that this contention must be accepted.
Mr. Rab has argued that the fact that Sadek Matbar was last seen together with the deceased is not enough to raise an adverse inference against him and has cited, in support of his contention, a decision of the Supreme Court of Pakistan in the case of Shamsuddin Sarkar v. The State (P L D 1959 S C (Pak.) 269). But, in the case before us it is not merely question of Sadek Matbar being last seen together with the deceased. Here a public carrier takes a passenger on a boat in circumstances that raise the natural inference that he was with the deceased when the latter was done to death in the course of the journey. Besides, there are various other circumstances in this case which irresistibly implicate Sadek Matbar in the murder of the victim.
We, therefore, hold that appellant Sadek Matbar has also been rightly convicted under section 302/34 of the Pakistan Penal Code.
With regard to the conviction of appellants Abdul Halim Molla and Abdul Gani Khalifa under section 407 of the Pakistan Penal Code, from the evidence in this case we cannot hold that these two appellants were entrusted with the jute or with the exercise of dominion in respect of the jute in question. In these circumstances, their conviction under section 407 of the Pakistan Penal Code is set aside. We further set aside the sentence of rigorous imprisonment for seven years and the fine of Rs. 6,000 imposed on each of these two appellants, i.e. Abdul Halim Molla and Abdul Gani Khalifa, under the said section, and we acquit them of the said charge.
With regard to appellant Sadek Matbar, the facts and circumstances that have been discussed above conclusively establish his guilt under section 407 of the Pakistan Penal Code. He was entrusted with the jute as a carrier and he agreed to carry the same to Narayanganj He disposed it of in breach of the agree ment he had made with P. W. 2 Abdul Awal. He has, therefore, been rightly convicted under section 407 of the Penal Code. As a matter of fact, no argument was addressed to us on behalf of this appellant challenging his conviction under this, section. It is hardly necessary to discuss this point any further.
With regard to the sentence of death pronounced on each of the appellants, namely, Sadek Matbar, Abdul Halim Molla and Abdul Gani Khalifa, learned Sessions Judge has fully discussed the facts and circumstances of the case in awarding such sentence. We fully agree with the views of the learned Sessions Judge, as stated in the judgment pronounced by him. We have given considerable thought to this matter and we have failed to find any extenuating circumstance which will justify the pronouncement of a lesser sentence. The murder was a brutal one and committed in a henious manner in breach of an obligation to carry the deceased Nurul Hoque, in safety, to 'the stipulated destination. Instead of this, he has been ruthlessly strangled to death.
We, therefore, dismiss the appeal, except in respect of the conviction of appellants Abdul Halim Molla and Abdul Gani Khalifa under section 407 of the Pakistan Penal Code and the sentences passed on them on that count. We also accept the reference. The sentence of death imposed upon each of the appellants, namely Sadek Matbar alias Abdul Majid Abdul Gani Khalifa and Abdul Halim Molla is hereby confirmed. We also see no reason to interfere with the sentence passed on appellant Sadek Matbar under section 407 of the Pakistan Penal Code.
K.B.A.
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