P L D 1966 Supreme Court 413 (PLP)

On appeal a Division Bench of the High Court of West Pakistan gave the benefit of doubt to Hamind but upheld the conviction and sentence of death imposed upon the appellant. The fine was, however, remitted. The appellant filed a petition for special leave to appeal from Jail. Leave was granted to consider whether a statement made by the appellant before the Additional District Magistrate of Muzaffargarh, which appeared to be of a confessional nature, had been rightly admitted into evidence and, if it was found to be inadmissible, whether the conviction of the appellant was sustainable in law. 'Ihe appellant who was in the service of the deceased was, it appears, on friendly terms with his co‑accused, who had about a month and a half prior to the incident abducted one Mst. Ganmi from the house of her husband Karim Bakhsh (P. W. 7) and kept her in the protection of the deceased with the assistance of his friend, the appellant. The latter taking advantage of 'the absence of Hamind developed illicit connection with the said woman and ultimately eloped with her. The deceased, who was a respectable land‑holder, treating this as a personal insult managed to have her recovered after three days through the intervention of some respectable persons of the locality. Evidently the deceased had himself also developed a liking for the woman, for, he later got a suit for dissolution of marriage instituted through her against her husband and procured a compromise decree therein by paying Rs. 2,000 to the husband. After the divorce the deceased kept the woman in the house of a neighbour, as he was himself a married person and his wife resented the affair. The appellant and his friend Hamind wanted the woman to be restored to them but the deceased persisted in refusing to do so. It is alleged that due to this the appellant and his friend had killed the deceased, while he was sleeping on the roof of his bhana, just a little before midnight. Two of the brothers of the deceased, Abdur Rahim Shah (P. W. 2) and Ahmed Shah (P. W. 3), who cultivated lands at the same Chah as the deceased and lip ed in adjoining houses separated only by a common wall, were then sleeping in their respective houses. Abdur Rabim was sleeping in his courtyard at a distance of about 12 karams from the bhana of the deceased which was at a lower level than the courtyard of the house. Ahmad Shah (P. W. 3) bad two guests staying with him on this night. One was the Lambardar Allah 8akhsh (P. W. 4) who had come to the Mauza to collect arrears of land revenue, and the other was Nura (P. W. 5) who had come to take back his belongings which he had earlier deposited with Ahmad Shah on account of floods in his own village, not very far off. They were all sleeping outside the haveli of Ahmad Shah which was at a distance of some 15 karams from the bhana of the deceased. A little before midnight they ail woke up hearing the shrieks of the deceased" coming from the roof of his bhana. Abdur Rahim went to the courtyard of the deceased and claims that in the light of the moon be saw the appellant from there pulling out a hatchet which appeared to have got stuck in the neck of the deceased. He also claims that he saw the acquitted accused Hamind in a bending position holding down the deceased by His legs. Ahmad Shah, Allah Bakhsh Lambardar and Nura claimed to have seen the occurrence standing near the bhana. They all maintained that they had clearly recognised the appellant and his co‑accused who were known to them from before. On seeing the witnesses the appellant and his co‑accused jumped down from the bhana and ran towards the jungle nearby. They were pursued for about 20 to 25 karams but when they entered inside the jungle the pursuers did not venture to follow them any further. They returned to the bhana and Abdur Rahim Shah pulled out the hatchet which was still sticking in the neck of the deceased. He made it over to the Lambardar and went to inform his other relatives. After the relatives had been informed Abdur Rahim went to Police Station Daira Din Panah, which is at a distance of about 5 miles from the place, and lodged the first information report there at 4 a.m. of the 29th of June 1963. The Sub‑Inspector of Police immediately left later recording the first information report and reached the Chah at about 6 a.m. He took into possession the blood‑stained hatchet produced by Allah Bakhsh as also the blood‑stained clothes and bedding of the deceased and some blood‑stained earth from the roof of the bhana. The acquitted accused Hamind surrendered before the Sub‑Inspector on the same day and his clothes, which appeared to be blood‑stained, were also taken into possession. The post‑mortem examination of the deceased disclosed only one big gaping wound 81/2"x4" extending from the front of the right shoulder to the front of the neck in an oblique direction. It had cut the great vessels of the neck, the wind pipe, the food pipe, right clavicle, the right first rib and the cervical vertebra. The injury was sufficient in the ordinary course of nature to cause death which, in the opinion of the doctor, must have resulted almost instantaneously and could have been caused by a hatchet of the type seized by the Police. The doctor also found 8 ounces of semi‑digested food in the stomach and 6 ounces of urine in the bladder of the deceased. In the meantime at about 11 a.m. of the 29th of June 1963, the appellant, it appears, presented himself before the Additional District Magistrate of Muzaffargarh in his Court room and asked to be taken into custody, as he asserted that he had committed an offence. The Additional District Magistrate, who till then had .no information of the murder of Muhammad Ali Shah, told him to give in writing whatever he wished to say. The appellant then went out of the Court room and after sometime again came back with a written statement (Exh. P. P.). This statement was read out to him and he admitted it to be correct. He was also verbally asked whether he had injured the person named by him with a kulhari? He answered in the affirmative. The Magistrate then ordered his arrest under section 307 of the Pakistan Penal Code, as the statement did not appear to indicate clearly as to whether the victim had died as a result of the injury. The Magistrate further directed that the appellant should be sent to judicial lock up and the Prosecuting Sub‑Inspector should enquire from the police Station concerned, about the incident. The appellant was to be put up before him again on the 2nd of duly 1963. The Police Officer investigating the case on receiving information from the Prosecuting Sub‑Inspector, Muzaffargarh, that the appellant had appeared before the Additional District Magistrate there and courted arrest, reported that he was required for an offence under section 302/34 which had been registered against him and that the appellant should be remanded to Police custody for the purposes of interrogation. The appellant was remanded to Police custody till the 7th of July and was directed to be produced before the Ilaqa Magistrate on the 8th of July. The clothes in the wearing of the appellant appeared to be blood‑stained and were, accordingly, taken into possession by the investigating officer. The blood‑stained articles were later sent to the Chemical Examiner, and the report of the Serologist revealed that the hatchet and the clothes of the accused were all stained with human blood. At the trial the prosecution case was supported by the direct testimony of as many as four eye‑witnesses, namely, Abdur Rahim (P. W. 2), Ahmad Shah (P. W. 3), Allah Bakhsh Lambardar (P. W. 4) and Nura (P. W. 5). The prosecution also examined the Additional District Magistrate of Muzaffargarh (P. W. 13) to prove the circumstances in which the appellant had been arrested and the written statement submitted by him at the time. The Magistrate also identified the appellant as the person who had appeared before him on the 29th of June 1963. He was cross examined by the counsel appearing for the co‑accused Hamind but the counsel for the appellant did not cross‑examine him, even though further opportunity was given to him for that purpose. In cross‑examination to the counsel for the acquitted accused the Magistrate stated he had not recorded the statement of the appellant under section 164 of the Criminal Procedure Code, because he was not produced before him for that purpose by the Police nor had the appellant offered to make a confessional statement. He simply made an application stating the fact of his having committed an offence and be accordingly ordered his arrest. Neither of the accused persons made any statement in the committing Court but in the trial Court both of them denied everything. The appellant denied that he was employed under the deceased or that he had given any statement in writing before any Magistrate. He also denied that any blood‑stained clothes were recovered from him. Similarly the co‑accused also denied everything including the abduction of Mst. Ganmi. No evidence was, however, adduced by either in his defence. Of the four eye‑witnesses examined in the case two were, of course, brothers of the deceased. The third was the local Lambardar who was staying for the night with Ahmad Shah (P. W. 3) and Nura, another guest of Ahmad Shah. There is no suggestion in their cross‑examination that they were, in any way, ill‑disposed towards the accused persons or had any other particular reason for falsely implicating them. It was suggested to Abdur Rahim Shah (P. W. 2) by the counsel of Hamind that the deceased had been murdered by Karim Bakhsh, the husband of Mst. Ganmi, but the suggestion was denied both by Abdur Rahim Shah and Karim Bakhsh himself, who was also examined in this case;. So far as the appellant is concerned, his counsel did not make any such suggestion to any of the witnesses and, in fact, did not cross‑examine Karim Bakhsh at all. Nura (P, W. 5), it was further found, was actually a relative of the acquitted accused Hamind. The trial Court accepted the evidence of all these witnesses and held that the case against the appellant and his co‑accused had been proved beyond any reasonable doubt, as the truth of the version given by the witnesses had been Confirmed by various other circumstances established in the case. No point, it appears, was taken before that Court as to the inadmissibility of the written statement filed by the appellant before the Additional District Magistrate. In the High Court, however, the contention that Allah Bakhsh Lambardar and Nura were chance witnesses and their presence at the place at that time of the night was not free from doubt was accepted, even though the investigating Police Officer (P. W. 14) had testified that he had found both present at the place when he reached there at 6 a.m. The High Court also found it difficult to believe that the moonlight was sufficient to permit identification of both the culprits. Nevertheless, the evidence of Abdur Rahim Shah and Ahmad Shah (P. Ws. 2 and 3) so far as the identification of the appellant was concerned, was relied upon, as he had served in the house of their brother, the deceased, for about a year. But in spite of this the High Court felt it necessary, "as a matter of abundant caution", to look for corroboration even of their evidence. In the case of the appellant this corroboration was found from the written statement (Exh. P. P.) filed before the Additional District Magistrate of Muzaffargarh, which was treated as an extra‑judicial confession, the unimpeachable evidence of motive and the finding of human blood‑stains on ~ the clothes seized from the appellant. But since there was no mention of the name of the co‑accused in the alleged extra judicial confession and there was no evidence of any meeting between them after the appellant had eloped with Mst. Ganmi, it was felt that there was an element of doubt as to his participation in the offence. The possibility of the witnesses being mistaken as to his identity was also felt not to have been sufficiently excluded upon the evidence on the record. In the circumstances, he was given the benefit of doubt. Learned counsel appearing in support of this appeal has not attempted to seriously assail the evidence of the eye‑witnesses relied upon but he has supported the view of the High Court that as these two witnesses were very closely related to the deceased, corroboration of their evidence was necessary, and since the most important corroborating circumstance was the alleged extra‑judicial confession, he has argued that it was wrongly admitted into evidence. In support of this contention he has placed strong reliance upon a decision of the Judicial Committee of the Privy Council in the case of Nazir Ahmad v. King Emperor(1) 63 1 A

372. According to the principle laid down in that case, it is contended, the oral evidence of the Additional District Magistrate was inadmissible, as he had neither acted nor purported to act under section 164 or 364 of the Criminal Procedure Code. The High Court has distinguished this case on the ground that there the Magistrate concerned had, in the course of the investigation, under the orders of the District Magistrate mace on the application of the Police, proceeded to the scene of the dacoity and to the places material to the events connected with it along with the accused who were in handcuffs and were accompanied by the Police. It was in those circumstances that the Judicial Committee had observed that "in their opinion the effect of the statute (Criminal Procedure Code) is clearly to prescribe the mode in which confessions are to be dealt with by Magistrates when made during an investigation and to render inadmissible any attempt to deal with them in the method proposed in the present case." In the case before us when the appellant appeared before the Magistrate the latter was not aware that the appellant was an accused in any case and, as he himself stated, the appellant was not produced before him by any Police Officer nor did he offer to make any confessional statement. He had simply applied to be taken into custody by stating the facts of the offence committed by him. The information of his being required as an accused in a case of murder was supplied to the Magistrate only on the 2nd of July when the investigating Police Officer applied for a remand. So fir as the Magistrate was concerned, no investigation had to his knowledge yet begun nor was the statement being made before him, as stated by the High Court, in consequence of any investigation. In the circumstances, we are of the view that the High Court was, right in coming to the conclusion that the statement admitted into evidence in the present case, though of a confessional nature, was not hit by the rule laid down by the Judicial Committee in the case of Nazir Ahmad v. King Emperor. The Magistrate concerned in the present case being an Additional District Magistrate was duly empowered under section 190 (1) (c) of the Criminal Procedure Code to act upon the information furnished by the appellant himself and, as such, the information upon which the Magistrate acted was admissible as such in evidence. Apart from this, we are unable to agree that the rule laid down by the Judicial Committee excludes all confessional statements or admissions, if they happen to be made before a person who is a Magistrate. We see no reason why a confession like any other admission should not be relevant evidence unless it is rendered inadmissible by some provision of the Evidence Act itself. The circumstances in which they are rendered inadmissible are set out in sections 24, 25 and 26 of the Evidence Act and these had no manner of application in the facts of the present case. Section 164 of the Criminal Procedure Code does not exclude confessions otherwise admissible. It merely provides for the manner in which confessions made during a Police investigation shall be recorded. In the present case the confession was not recorded during any Police investigation. We are, therefore, clearly of the view that the statement made by the appellant before the Additional District Magistrate, Muzaffargarh, was not inadmissible in evidence. in the present case, furthermore, even if this statement is excluded from consideration, there is abundant other material to corroborate the testimony of the eye‑witnesses if such corroboration was necessary: The mere fact that Abdur Rahim and Ahmad Shah were brothers of the deceased did not make it incumbent upon the Court to seek corroboration of their evidence. They were residing in adjoining houses and were, therefore, natural witnesses who were expected to be present at that time of the night in their respective houses. Their evidence was not also, in any manner, shaken in cross‑examination. We see no reason, therefore, as to why their identification of the appellant who was known to them from before, should have been doubted: In addition to this, there was, as the High Court itself has stated, unimpeachable evidence of strong motive for the murder. This together with the finding of human blood‑stains on the appellant's clothes and the fact that he himself appeared the very next morning before a Magistrate and courted arrest furnished sufficient corroboration of the testimony of the said eye witnesses. The appellant's conviction thus appears to us to be clearly based upon sufficient reliable and cogent evidence besides the extra‑judicial confession. He has been, in our opinion, rightly convicted and appropriately sentenced. This appeal is, accordingly, dismissed. K. B. A. Appeal dismissed.