1968 P Cr (PLP)

SHAUKAT ALI, J.‑Khadim Hussain (18) and his mother Mst. Rehmat Bibi (55) have been convicted of having caused the deaths of Mst. Aisha, her son Ghafur 8/9 years and her two daughters, Mst. Manzur and Mst. Zahida, 5 and 21 years of age, respectively, under section 302/34, P. P. C. and have been sentenced to death, by the Additional Sessions Judge, Sahiwal. Faqir Hussain, who was also tried along with them was acquitted of the charges. The convicts have appealed and the case is also before us under section 374, Cr. P. Code, for confirmation of death senten ces. We propose to dispose of the appeal and the reference for confirmation of death sentences by a single judgment. The parties are related inter se. Mst. Rehmat Bibi is the wife of Ahmad Khan P. W. and Khadim Hussain is his son. Mst. Aisha deceased was the second wife of Ahmad Khan, P. W. Mst. Manzur and Mst. Zahida were the daughters of Mst. Aisha deceased from Ahmad Khan P. W. while Ghafur deceased and Manzur P. W. are the pichhlag sons of Mst. Aisha deceased. Faqir Hussain acquitted accused was married to Mst. Hajran Bibi, daughter of Mst. Rehmat Bibi appellant and is the son‑in‑law of Ahmad Khan P. W.

2. According to the prosecution the appellants are said to have murdered Mst. Aisha, Ghafur, Mst. Manzur and Mst. Zabida on or about 21st July 1965, the motive being that the relations between Mst. Aisha deceased and Mst. Rehmat Bibi appellant were strained. Having murdered Mst. Aisha and her children the appellants are supposed to have buried them in the dhari of Ahmad Khan P, W.

3. On 4th October 1965, at 1 p.m. Nazir Ahmad lodged report Exh. P. D. at Police Station Shahkot, which was recorded by Haji Sher Ahmad, Sub‑Inspector of Police. The Police Station is at a distance of six miles from the place of occurrence. The Sub‑Inspector in the course of investigation put under arrest Khadim Hussain and Mst. Rehmat Bibi on 8th October 1965. Khadim Hussain offered to produce the dead bodies. He led the police to the dhari of Ahmad Khan P. W. and after digging pro duced bones of four dead bodies. The same were taken into possession vide memo. Exh. P. A. The Sub‑Inspector prepared the injury statements and the inquest reports and sent the skeletons to the Medical Officer for post‑mortem examination. Khadim Hussain appellant produced kassi P.

1. The same was taken into possession and made into a sealed parcel vide memo. Exh. P. B. He also produced cot P. 3 and the same was taken into possession vide memo. Exh. P. E.

4. Doctor Ghulam Rasul (P.W. 1), who performed the post mortem examination on the 9th of October 1965, on these four skeletons found that the bodies were in advance stage of decom position. Therefore, he was unable to find any extraneous mark of injury thereon. He further opined that the time between the death and the post‑mortem examination was about 2 or 3 months. The skeletons were impossible of identification, but the medical expert opined that they were the bodies of children of 3‑4, 6‑7 and 10‑11 years of ages. In cross‑examination the doctor admitted that the death might have been caused by natural causes.

5. Both the appellants denied the prosecution allegations. No evidence was called in defence.

6. The prosecution relies upon the production of dead bodies, extra judicial confessions made by the appellants and also upon the motive. There is evidence of Muhammad Aslam, Inayat Ullah, Nazir Hussain, Muhammad Fazil and Haji Sher Ahmad P. Ws. on the record to show that Khadim Hussain appellant knew where the bodies of these murdered persons were. No criti cism was made against their evidence in respect of the recoveries made at the instance of Khadim Hussain appellant. Their evidence is convincing and consistent on this point. There can be no doubt in our mind that Khadim Hussain appellant knew that murders had been committed. There is also the medical evidence available on the file which shows that the skeletons found at the instance of Khadim Hussain were of the children of the ages of the deceased. If the death would have been natural, the skeletons would not have been found buried together in the dhari of Ahmad Khan P. W. This by itself shows that the deceased were done to death. We, therefore, agree with the finding of the learned Additional Sessions Judge to this extent that Mst. Aisha, Ghafur, Mst. Manzur and Mst. Zahida had been murdered.

5. As regards the evidence of extra judicial confession it has been attacked on the ground that it is inadmissible in evidence under section 24 of the Evidence Act, as it was caused by an inducement from a person in authority, namely, Ch. Inayat Ullah P. W. Chairman of the Union Council of the area. The first question that falls for determination is whether a Chairman of a Union Council is a person in authority are contemplated in that section. Article 29 of the Basic Democracies Order, 1959, enjoins on the Chairman of a Union Council certain duties which, in a way, resemble the duties of a zaildar is the former Punjab. Apart from other functions a Chairman has to report to the police the commission of any offence, to bring to the notice of the police the presence in the Union of persons of notorious character, and to assist in the investigation and prevention of crime and in arrest ing criminals. A Chairman of a Union Council is also a Chair man of the Conciliation Court under the Conciliation Courts Ordinance, 1961, and in that capacity he is empowered to try criminal and civil cases as described in the Schedule attached to section 5 of the Ordinance. Apart from this, a Chairman of the Union Council is the Chairman of the Arbitration Council under Muslim Family Laws Ordinance, 1961.

6. From the above, it would be seen that a Chairman of the area has to perform multifarious duties of executive and judicial nature. Therefore, he is a person in authority within the meaning of section 24 of the Evidence Act.

7. The next question is whether there was any inducement offered by Inayat Ullah P. W. It is in his evidence that the appel lants took him aside and told him that a case had been registered against them and that he told them that he would help them in case they make a true statement and it was after his promise that the appellants made extra judicial confessions. The finding of the learned Additional Sessions Judge that Inayat Ullah P. W. had trimmed his evidence in favour of the appellants would not help the prosecution, as the evidence of a witness is to be read as a whole. We would, therefore, hold that there was an inducement offered to the appellants to make these confessions and that it did proceed from a person in authority, and was sufficient in our opinion, to give the accused grounds which would appear to them reasonable for supposing that by making it they would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against them. Therefore, these extra judicial confessions must be excluded.

8. The evidence of motive is also not convincing. Nazir Hussain in his statement has deposed that the relations between Mst. Aisha deceased and Rehmat Bibi appellants were strained. This witness was confronted with his statement before the police where it was not so recorded.

9. As we have already held that the extra judicial confes sions had to be excluded, therefore, on the file we are left with no evidence to connect Mst. Rehmat Bibi appellant with the murders of Mst. Aisha, Ghafur, Mst. Manzur and Mst. Zahida. We, therefore, proceed to acquit her. She shall be set at liberty forth with in case her detention is not required in any other case.

10. As to Khadim Hussain we have the evidence of recoveries of skeletons at his instance. This piece of evidence, however, does not in our judgment establish his guilt under section 302/34, P. P. C. and as we have already excluded his confession for consideration, his conviction under section 302/34, P. P. C. cannot be maintained. At the same time, there can be no doubt that Khadim Hussain appellant has been guilty of an offence under section 201, P. P. C. as the offence, which he knew to have been committed was punishable with death. We would, therefore, alter his conviction from section 302/34, P. P. C. to one under section 201/34, P. P. C. and sentenced him to seven years' R. I. The sentences of death of the appellants are not confirmed. Appeal partly accepted,