Find a Lawyer

Criminal Appeal No. 326 of 1961, decided on 27th March 1963.

Confession of co‑accused can merely be taken into consideration against another‑Such con fession cannot form basis for conviction of other co‑accused.

Circumstantial evidence‑Conviction can be based on such evidence only if it is incompatible with innocence of accused.

M. H. Junejo for Appellants.

Murtaza Hussain for A. A.‑G. for Respondent.

Dates of hearing : 26th and 27th March 1963.

Ibrahim son of Dur Muhammad, Ghulam son of Dhani Bux and Muhammad son of Saidullah, all by caste sethar, were committed for trial in the Court of the Sessions Judge, Larkana for the murder of Mako. Ghulam was given the benefit of doubt and acquitted, while Ibrahim and Muhammad were both convicted under section 302, P. P. C. and sentenced to trans portation for life. They have both appealed.

2. The facts, briefly stated, are these : Mako, the deceased, originally belonged to village Lalan, in Taluka Shikarpur. He was there suspected to be a Kayo' with a girl, Hanifa, daughter of Ghulam Hyder sethar. Mako apprebending danger to his life on this account, migrated to village Abri, Taluka Kambar, District Larkana, Thig ;migration took place about seven years before the date of the incident, which is the 13th January 1961. It is the case of the prosecution that on that day, Mako had gone to graze his cattle in the jungle when Ibrahim and Muhammad, the two appellants before us, came to the house of Yar Muhammad, where Mako used to live, and inquired as to where he could be found. Mako used to live in the house of Yaroo, but worked with Allahdito. At the house of Yaroo, Mst. Janat and Zainab her husband's sister who was known to Ibrahim, told him that Mako had gone out to the fields for grazing cattle, and at Ibrahim's request, she asked her young son Mitho, to accompany these two persons and show the place where Mako was. According to the evidence of Mitho, he pointed out Mako to these two persons from a distance, which was later ascertained as being about 1,400 feet, and then came back and took his cattle for grazing. At Kachr; Majhand time, that is, about 10 a.m. Allahditto with whom Mako was employed, was informed by one Parial that Mako was lying dead in his (Allahditto's) field. Allahditto went to Yaroo's house, Yaroo was not there, but he was informed by Mst. Zainab and Mst. Janat, Yaroo's wife that Ibrahim and one other person had come inquiring about Mako. They all then went to the scene, and the corpse of Mako was identified. He was lying dead with several injuries on his person. Zainab told Allahditto that Ibrahim had come earlier to Yaroo's house and had inquired about Mako, and That Mitho had accompanied Ibrahim and the other man for the purpose of pointing out where Mako was. Allabditto was then asked by the, nekmurd, Taj Muhammad P. W. 13, who had also accompanied the party to the field, where the dead body was found, to go and make a report. This Allahditto did at 3‑30 p.m. at Police Station Kambar, which is 4 miles away from village Abri. The distance between these two places is four miles. In this F. I. R. nobody is mentioned as the perpetrator of the crime, but it is mentioned that Ibrahim and another unidentified person had come to the house of Zainab, and had asked for Mako the same morning, and that Mitho had accompanied them to point out Mako in the field, where he was grazing his cattle.

3. Muhammad Bux, S. I. P., Kambar, who recorded the F. I. R. made by Allahditto, proceeded with him to the scene of offence and found the dead body of Mako lying there with blood in the field, and he prepared an inquest report and a mashirnama in that regard. The dead body was sent for post‑mortem exami nation, and then he recorded the statement of witnesses, Zainab, Janat, Mitho, Taj Muhammad, Parial and a few others. He searched for Ibrahim on the 14th, 15th and 16th January, but was not able to find him. It was on the 17th January that be was able to arrest Ibrahim near Shikarpur. He secured his clothes which appeared to be blood‑stained and after interrogating him, he went along with him to the house of one Khan, from which a hatchet was produced. The same clay, he also arrested Ghulam, Khan, Muhammad and Allah Bux. On the following day, that is, the 18th January, Ibrahim took the Sub‑Inspector to the place of incident and showed it to him. The same day he was produced before the Resident Magistrate, Kambar, and a judicial confession was recorded by the Resident Magistrate. All these five persons, namely, Ibrahim, Muhammad, Ghulam, Khan and Allahbux were put an identification test Khan and Allah Bux were not identified, by anyone, but these three persons were identified, not all of them necessarily by the same set of witnesses.

4. The examination of the body of the deceased Mako show ed the following injuries on it :‑

(1) An incised wound 8" x I" x deep to brain on the left parietal bone obliquely extending from left zygometic bone to the parietal eminence.

(2) Multiple incised wounds measuring 8" x 6" of length, between the upper border of the scapulae and occipital eminence, all transversely and deep to the I of the neck thickness and thoracic cavity at the 3rd thoracic vert.

(3) An incised wound u" x I" x " on the middle of medial border of left scapula transversely.

(4) An incised wound 5" x wide x "" from below upwards on the middle of left triceps. The flap of skin‑flesh turned over towards axilla.

(5) Multiple scab, wounds (gunshot) of pin head size (more than 80) on the upper part of the back between two scapulae. It would appear from the nature of the injuries that four of them had been caused by some sharp‑cutting weapon and injury No. 2 was a multiple incised wound. The 5th injury had beep. caused by a gunshot, and was at the back of the deceased.

5. At the trial, the evidence against appellant Ibrahim con sisted of his own judicial confession, coupled with the testimony of Mst. Zainab and Mst. Janat to the effect that he along with the other accused Muhammad had gone to their house and had inquired about Mako, and Mitho had accompanied them to point out the field where Mako was grazing r;llahditto's cattle. There was then the evidence of Mitho, a young boy of about 8 years, to the effect that he had accompanied these two persons and had pointed out to them Mako who was grazing Allahditto's cattle in the latter's field. Mst. Khillan, P. W. 4, is the mother of deceased Mako. She has stated that before coming to this village, she and her son were living in Lalan village in Shikarpur Taluka, and that she had been informed by her son that he had been suspected of being Karo' with Mst. Hanifa, and for that reason they had migrated to Sehtar village, and Mako took employment with Yar Muhammad. She further stated that the accused persons were related to Ghulam Hyder, the father of Mst. Hanifa. This woman was herself living UL Sehtar village in Taluka Ratodero, and on having learnt that her son had been murdered, came to village Abri, where Mako had been living with Yaroo, but before she could reach the village Mako had already been‑buried. The evidence of this witness was not challenged in cross‑examination. Therefore, there was motive for doing away with Mako on an old grudge that he had disbonoured the daughter of Ghulam Hyder. This sort of thing is common amongst the Baluchis to which tribe the appellant. as well as the deceased belonged.

6. Appellant Ibrahim in his statement before the committal Court denied every allegation which had been made by the prosecution witnesses against him and said that the case was false When he was asked as to who, the prosecution witnesses were deposing against him, he said that this was at the instance of the police and due to enmity. In the Sessions Court also his case was that of bare denial and he improved upon the statement made in the committal Court regarding enmity by adding that Mst. Zainab s sister had been divorced, because he (Ibrahim) had been suspected to have illicit connection with her. As regards the judicial confession, he stated that he had made it, but this had been made under police pressure.

7. Appellant Muhammad has denied that he had gone to village Abri along with Ibrahim, or that he bad gone to the house of Mst. Zainab, or had been taken by Mitho to the field. When asked as to why he was implicated in the judicial confession made by Ibrahim, he said that this was under police pressure, because there was no enmity between him and Ibrahim. As regards the statement of the witnesses, he said that they were deposing against him because of their enmity with appellant Ibrahim, who was related to him (Muhammad). About his identification, he stated that he had already been shown to the witnesses by the police before the test was held.

8. The most important piece of evidence in this case is the confession made by the appellant Ibrahim before the Resident Magistrate, Kambar. The latter was examined as the first witness in this case and deposed that he had given all possible warning to Ibrahim and had given him 2‑1 hours' time for reflection. He deposed that he was satisfied that Ibrahim was making the confession voluntarily, and was speaking the truth. He stated that he had told Ibrahim that he was a Magistrate, that if he made the confession it would be used against him, and that he should not believe in any promises which the police might have given to him and he should not be afraid of their threats, because if he did not make the confession he would not be sent back to police custody, and would be remanded to judicial lock‑up. He further stated that after he was so satisfied, he recorded the statement of Ibrahim in Sindhi, which was the latter's mother tongue. The only question asked of the Resident Magistrate in cross‑examina tion was about a scar on the back of the appellant Ibrahim, and the Magistrate said that he had asked Ibrahim about this scar, and that the latter had told him that it was a healed up boil. The narrative part of the confession is a long statement which is cover ed by more than two typed pages. It gives a wealth of detail which one would not normally expect in a confession which had been wrong out by police pressure. The substance of this state ment has been reproduced by the learned Sessions Judge correctly, and this is how it reads

"He had been to Lalan village where he met the accused Khan, who told him that they had yet to take revenge from Mako. Mako had disgraced their family, and they were not able to show their faces to their friends. Five of them, i.e. Khan, Allah Bux, Muhammad, Ghulam and Ibrahim decided to avenge themselves by killing Mako. The accused Muhammad had a country‑made pistol, Ibrahim and Ghulam had hatchets and the remaining two were armed with lathis. They came to Abri village and stayed for the night near Norang Wah. Early morning, Ibrahim and Muhammad went to Abri village, leaving behind their three companions near Norang Wah. After enquir ing from a person where the house of Allahditto Bhutto was, they went there. On their call Make, came out. They told him that they were looking for the dry grass and if there was any, he must get them. Make then went inside and brought with him Ali Bux. Ali Bux took them to his fields and showed them the grass but they did not agree to the price. Mako had told them that he was going out with the cattle, and this was before the accused left the house of Allahditto with Ali Bux.

The two accused then went to the house of Yar Muhammad, where they met Mst. Zainab. Ibrahim enquired about Make and learnt that he was not there, (may be the accused had gone to Yar Muhammad's house to see if Make was there for his breakfast). At their request Mst. Zainab sent her son Mitho to the house of Allahditto to see if Make, was there. The boy returned with the information that Mako had gone out with the cattle. They then left Yar Muhammad's house and took the boy Mitho with them. This boy took them to Norang Wah and pointed out the fields where Mako was working. Mitho, the boy, then returned. The five accused got together. The accused Muhammad managed to go behind Make, and he fired (the pistol) on the back of Mako. The retraining accused then used their weapons against Mako, who had been injured with the fire‑arm. After finishing their work, they went away and washed their blood‑stained clothes and hatchets in the canal."

9. This confession was retracted by Ibrahim at the trial. However, there is sufficient corroboration in the other evidence on record. The evidence of Zainab and Janat, Allahditto and of Mitho established the fact that Ibrahim along with another person, had gone to inquire about Make, and that Mitho had taken them to the field and pointed out where Make, was grazing the cattle, These two persons had earlier gone to Mako at the house of Allahditto upon the pretext that they wanted to buy dry grass. Alibux had shown them the dry grass, but they had quoted a ridiculously low price for it. I he learned Sessions Judge has inferred for this, and in our opinion rightly, that these persons were anxious to get hold of Mako, and this talk about the buNing of dry grass was merely a ruse. It m as later on that they came to the house of Yaroo from where the3 were directed to the field, because by that time Make had taken out the cattle. No enmity is alleged against Allahditto, and there is no geed reason why his statement should not be believed that when he learnt of the fact that Make, was lying dead in his field, he went to the house of Yaroo, and Zainab gave him the information which is referred to earlier. A suggestion was made to Mst. Zainab in cross‑exami nation that her sister had been divorced because of a suspicion of her illicit intimacy with Ibrahim. This was denied by Mst. Zainab, and there is no material on record to support this suggestion. In fact, this story was given by Ibrahim for the first time in the Court of Sessions. There was then the evidence of Mitho, and the learned Sessions Judge found that this boy of 8 years was an intelligent lad, and he like the other witnesses had spoken the truth. The confession in this case was made on the day following the arrest of appellant Ibrahim. The shirt secured from him and the hatchet produced at his instance from the house of Khan, were both sent to the Chemical Examiner. Blood was found on both these articles, but it had disintegrated, and its origin could not be determined. There is no material to support the suggestion that the confession was made under any pressure. There is intrinsic evidence to show that this confession was true. It is stated in it that Mako was fired at in the first instance from behind, and he fell down as a result of being hit by the pellets, and it was then that the hatchet blows were inflicted upon him. The pellet injuries on the body of Mako showed that the shot had been fired from behind.

10. We are satisfied that this confession made by Ibrahim was a voluntary one, and is true. It is corroborated by evidence which is completely disinterested. If anyone was interested in roping in Ibrahim falsely in this case, he might well have been mentioned in the F.I.R. as the actual assailant. This was not done. Nor was any evidence attempted to be produced to show‑ that anyone had actually seen the assault. Ibrahim was known to Mst. Zainab and Mst. Janat, and used to visit their place. If the suggestion of his being a "Kayo" with Zainab's sister had any grain of truth, they would not have permitted him to come to their houses. We have found nothing in the cross‑examination of these two women as well as that of Allahditto, Taj Muhammad and Parial, which might throw a doubt as to their veracity. The learned Sessions Judge has seen these witnesses, and he believed them, and we see no reason to disagree with him.

11. Mr. Hayat Junejo, the learned counsel for appellants, frankly stated that having regard to the nature of the confession and the oral evidence against appellant Ibrahim he found it very hard to press his case, though he stated that he was not formally abandoning his appeal. However, with regard to the other appel lant Muhammad, he forcibly argued his case was of practically no evidence. It was pointed out that the confession of Ibrahim, the co‑accused, in this case, could under section 30 of the Evidence Act merely be taken into consideration against Muhammad, but it did not amount to evidence such as is understood in law. Various cases were cited by the learned counsel to support his contention that the confession of a co‑accused could not be the foundation of the conviction of another, and that it could only be taken into consideration to strengthen other evidence which might be on the record, and that such a confession cannot be used A to fill the gap in the prosecution evidence which might fall short of connecting the accused with the crime. We are of the opinion that this contention of the learned counsel is well‑founded. Apart from the confession of the co‑accused, the only other evidence against appellant Muhammad is that he had gone with Ibrahim to the house of Mst. Zainab, and from there had accompanied Ibrahim towards the field where Mako was grazing his cattle Mitho left these two persons at a distance of about 1,400 feet from Mako. This circumstance would be a connecting link, but by itself is not such which connects Muhammad with the actual murder. Circumstantial evidence in order to be the basis of conviction must be such as is incompatible with the innocence of the accused. This circumstantial evidence is obviously not of that kind. The learned Sessions Judge has not dealt with this aspect of the question. He has treated the confession of Ibrahim for the purpose of using it against Muhammad in the same way as if it was a confession of Muhammad himself, but this cannot be so, and section 30 of the Evidence Act clearly lays down that such a confession can only be taken into consideration against a co‑accus ed. There being no other evidence, the appeal of Muhammad must be allowed. This was also conceded to by Mr. Murtaza Hussain, the learned Advocate appearing for the State.

12. As regards the other appellant Ibrahim, we have said enough to show that we believe his confession which, he made voluntarily. It is true that he retracted from it in Court, but there is evidence to corroborate that confession, and to this we have already referred. We are, therefore, of the opinion that appellant Ibrahim was rightly convicted under section 302, P. P. C. by the learned Sessions Judge.

13. In the result, the appeal of Ibrahim is rejected, and his conviction and sentence is upheld. The appeal of Muhammad is allowed, and he is acquitted. He shall be set at liberty, until required in connection with any other case.

K. B. A./A. H.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.