P L D 1957 (W (PLP)

SHABIR AHMAD, J.‑‑

This order will dispose of the jail appeal presented by Abdul Majid, son of Feroze Khan, Mangral, against a sentence of death imposed on him for an offence of murder and the reference under section 374, Criminal P. C., made by Mr. Nazeer Ahmad Mahmood, Sessions Judge, Jhelum, who passed the above sentence, for confirmation of the sentence. The learned trial Judge has found that the prosecution had succeeded in establishing that the appellant had, with the assistance of his paramour, Mst. Fazal Jan, killed her husband, Walayat Husain, on the night between the 17th and 18th of January 1956, in a house situated in Machine Mohalla of Jhelum City. The dead body of Walayat Husain, who used to work as mail peon in the post office at Jhelum, was discovered by Allah Ditta, a resident of Machine Mohalla, at about 9 a.m., on the 18th of January 1956, lying behind some plants in the fields. Allah Ditta went to the Jhelum City Police Station and made a report which is Exh. P. A. on the record. On this report, Mir Nusrat Husain, Sub‑Inspector, in charge City Police Station, went to the place where the dead body was lying, and having discovered the identity of the dead body, sent a report to the police station which is Exh. P. Z/1. In the report it was mentioned that the dead body bore marks of violence on the throat and the neck which showed that he had been done to death and the case was, therefore, one falling under section 302 of the P. P. C. No one was named as a culprit in the report. Investigation proceeded, and the police having come to the conclusion that the victim had been done to death by his wife and the appellant, had a pardon tendered to Mst. Fazal Jan on the 27th of January 1956 and sent the appellant up for trial with the result already mentioned. At the trial Mst. Fazal Jan, the approver, who appeared as the thirteenth witness for the prosecution, gave ocular account of the manner in which her husband, Walayat Husain deceased, was done to death. She stated, inter alia, that she had developed illicit intimacy‑ about four or five months before her husband was done to death with the appellant who was married to the sister of her husband, and in order that they may be able to live together without any hitch, they had decided to do away with the victim and carried out that design on the night preceding the morning on which the dead body of the victim was discovered lying in the fields. She had on the night of the occurrence left the door of her room unbolted, and entering by teat door at about midnight, the appellant came in the room. At that time Walavat Husain was asleep and the appellant caught him by the neck, The victim struggled, but as she was holding his legs, his struggle was not of much avail to him. After the victim had expired, she lit up the lamp and the appellant dressed the corpse in the postal‑peon uniform and soon after left the body in the fields. After disposing of the dead body, the appellant came to her and impresses on her the necessity of keeping absolutely quiet. The appellant further told he that he was not sure where he would go, but when her father came on learning about the death of her husband she should go with him to Sarsawa, where her father resided, and that he would join her there. She assured the appellant that she would not give any information to the authorities and that when asked about the death of her husband, she would say that he had, as usual, left early in the morning to go for attending to his duties. On the 1st of February 1956, the appellant made a confession under section 164, Criminal P. C., before Sahibzada Saeed‑ul‑Hameed, Magistrate 1st Class, Jhelum. In this confession he said that he had killed the victim with the assistance of the latter's wife with whom he had illicit intimacy. The prosecution also produced evidence that when the person of the appellant was searched on the 27th of January 1956, a ticket, which showed that some one had performed a journey by a bus from Jhelum to Mirpur in the Azad Kashmir on 18th January 1956, was recovered. Evidence was also led that the approver and the appellant had illicit intimacy. When questioned by the committing Magistrate to explain the evidence against him, the appellant stated that he had nothing to do with the murder of the victim. He said that he was arrested by the police on the 27th of January 1956, and when his clothes were searched on that day, some other articles were recovered but not the ticket regarding a travel by a bus. With regard to the confession recorded by Sahibzada Saeed‑ul‑Hameed, Magistrate 1st Class, Jhelum the appellant said that though he had made the confession, it was not a voluntary statement and he had been coerced by the police into making it. Before the learned trial Judge the appellant amended to some extent the statement he had made before the Committing Magistrate by saying that he was arrested on the 23rd of January 1956 and not on the 27th of January, as stated by him before the Committing Magistrate. He further stated that though, after recording the confession, the Magistrate had ordered that he should be taken to the judicial lock‑up, he remained for a night with the police because the jail authorities had refused to take him in on that day. He ascribed the case against him to the enmity of Sajawal, the father of the approver. No evidence was produced in defence. The case rests mainly on the deposition of Mst. Fazal Jan, corroboration of which statement is sought from the retracted judicial confession of the appellant, the motive he had to do away with the victim and the fact that on the morning of the 18th of January 1956 the morning on which the dead body of the victim was found lying in the field‑the appellant had bought a ticket for travelling in a bus from Jhelum to Mirpur which would show that he was in‑ Jhelum on that morning. I will first of all deal with the motive alleged by the prosecution. Mst. Fazal Jan (P. W. 13) has stated in clear terms that she had sexual intimacy with the appellant, and I do not see any reason why her statement in this regard should not be accepted. But there is other evidence on the record which points in the direction of an illicit intimacy between the approver and the appellant. There is first the statement of Bashir Ahmad (P. W. 19), a real brother of the victim, who said that when he came on leave from Muzaffarabad, where he is working as a sepoy in the Army, to village Sarsawa, where the approver and the appellant were those days residing, be discovered that the two had developed illicit intimacy, and when on his way back to Muzaffarabad he met his brother at Jhelum, where he was posted, he told him about this. Then there is the deposition of Sajawal (P. W. 21), the father of the approver, to the effect that about two months before his murder, the victim had come to Sarsawa and had told him that his daughter, the approver, was prosecuting an illicit intrigue with the appellant. In addition, we have the statement of Badi‑uz‑Zaman (P. W. 16), the owner of the house in which the victim resided at the time of his. murder, to the effect that on information received from his maid‑servant, Mst. Said Bibi (P. W. 17), he had arrived at the conclusion that the approver and the appellant were lovers. Mst. Said Bibi (P. W. 17) stated that she went to the room in which the approver and her husband resided and frequently found the appellant sitting very near the approver in the absence of her husband, and that a day or two before his death when the victim was not in the house, the appellant remained for the night in the same room with the approver. In his statements before the committing Magistrate and the learned trial judge, the appellant denied that he had illicit intimacy with the approver, but in answer to a question, he admitted before the Com mitting Magistrate that on the 16th of January 1956 Badi‑uz Zaman had objected to his remaining in the same room with the approver who was not his wife. Considering the above evidence, I have arrived at the conclusion that it can hardly be doubted that there was illicit intimacy between the approver and the appellant. This, however, cannot advance the prosecution case materially, because; though the illicit intimacy between them would be a motive for them to do A away with the man who stood in the way of their enjoying the company of each other without any restraint, it cannot be proof of the approver and the appellant being concerned in the killing of the man whom both of them would want to die. I will now deal with the rest of the evidence which tends to connect the appellant with the crime. There is first of all the statement of the approver to be considered. While dealing with evidence of this type one has to be very careful because it is by no means improbable that a person who has been made an approver may not only be falsely implicating the accused but also posing to be connected with the crime though having had nothing to do with it, because having been tendered a pardon, the approver may think that confessing even falsely to have been concerned in a crime was not treading on dangerous grounds. I have carefully considered the statement of the approver and can find nothing therein or in the other evidence on the record, direct or circum stantial, which would even tend to show that as far as her own participation in the crime was concerned, she had not told the truth. It is true that when discovered by Allah Ditta, the dead body of the victim indicated that he had been done to death in the field itself when on his way to his office, but I am satisfied that the explanation of the uniform on the person of the victim given by the approver was the correct one. Before coming to the confession of the appellant, I would deal with the ticket for bus travel from Jhelum which was alleged by the prosecution to have been recovered from the possession of the appellant on the 27th of January 1956. This ticket is a piece of evidence for the prosecution only to this extent that it proves that the person who bought it was in Jhelum on the morning of the 18th of January 1956 and probably on‑ the night preceding that morning. The learned counsel for the appellant urged that the ticket had been foisted on the appellant, because if it had been in his possession, there is no reason why it should not have been recovered earlier than the 27th of January 1956 as the appellant was with the police as a suspect at least on the 25th of Januarys 1956. If the person of the appellant had been searched earlier than the 27th of January, the recovery of the ticket on the 27th of January would lose weight, and the question for consideration, therefore, is if the evidence led by the prosecution through the depositions of P. W. 26 and P. W. 28 that the ticket was recovered on the 27th of January 1956 could be accepted. I have already mentioned that in the Court of the Committing Magistrate the appellant admitted that his person was searched on the 27th of January 1956 but he changed this statement in the Court of Session. The witnesses of the recovery on the 27th of January 1956 are reliable and their statements, taken in conjunction with the statement of the appellant in the Court of the Committing Magistrate, prove that it was on the 27th of January 1956 that the person of the appellant was searched and the ticket was recovered. No doubt, the appellant was with the police earlier than the 27th of January 1956, but it is obvious that as he was not put under formal arrest, his person was not searched. The learned counsel for. the appellant urged that as soon as the appellant was summoned by the police for joining the investigation as a suspect, he would have thrown away the ticket if it had been in his possession on the day he came to the police. This argument overlooks the fact that the ticket would appear such a non‑incriminating piece of paper that it may not have occurred to the appellant that its recovery would in some manner connect him with the crime. Muhammad Siddiq (P. W. 24) deposed that he had sold the ticket (Exh. P. M.) to a person who boarded the bus No. 443 near the Jhelum Bridge for Mirpur, but did not identify the appellant as that purchaser. The mere fact that the appellant was not identified k Muhammad Siddiq as the purchaser of the ticket, does not detract from the value of this piece of evidence, however little it might be, because the fact that the ticket was recovered from the possession of the appellant would prove that it had been bought by the appellant. I would, therefore, hold that the prosecution had succeeded in establishing that when the person of the appellant was searched on the 27th of January 1956 he was in possession of the ticket (Exh. P. M.) and that its recovery would prove that the appellant was in Jhelum on the morning of the 18th of January 1956 near about the time when the dead body of the victim was recovered from the fields. Coming to the confession made by' the appellant under section 164 of the Code of Criminal Procedure on the 1st of February 1956, I find from the deposition of Sahibzada Saeed‑ul‑Hameed, Magistrate 1st Class (P. W. 5), that all possible precautions were taken to ensure that it had not resulted from any inducement, threat or promise. The appellant was given more than half an hour to consider his position and it was after that time had elapsed that he made the confession in spite of being told that it would be used as evidence against him. In his statement in Court the appellant admitted that he had made the confession but ascribed his act to coercion by the police but did not state what form that coercion had taken. It is true that the appellant resiled from this confession recorded with all possible precautions as soon as he was questioned about it by the Committing Magistrate at the close of the prosecution evidence, but it is significant that though the appellant had been attending the hearings in his case in the Court of the Committing Magistrate before the date on which his statement was taken, at none of those hearings did he bring to the notice of the Committing Magistrate that the confession had been extorted from him by the police. I would, therefore, hold that the confession (Exh. P. E.) recorded by Sahibzada Saeed‑ul‑Hameed, Magistrate 1st Class, Jhelum, was not inadmissible in evidence on any of the grounds mentioned in section 24 of the Evidence Act, The evidence against the appellant, therefore, consists of the following pieces :‑ (1) That the approver names him as the murderer of her husband. (2) That on the morning of the 18th of January 1956, when the dead body of the deceased was recovered from the fields the appellant is proved to have been in Jhelum. (3) That the appellant made a confession before a Magis trate that he had participated in that murder. I have already made it clear that the second of the above circumstances has by itself not much weight, though in conjunction with the other evidence, it tends to connect the appellant with the crime The statement of the approver is clear and if she had been the solitary witness who had seen the appellant kill her husband without being an accomplice. I would have had no hasitation in accepting her statement as sufficient for conviction of the appellant, but the law requires that the statement of an accomplice must be corroborated in material particulars before a conviction can be based on it. It need hardly be mentioned, however, that the degree of corroboration required must differ with each accomplice. In the present case the approver is naming her lover as the murderer of her husband but that by itself is not very significant. It is in evidence that the father of the victim had brought up the appellant, whose mother was the second wife of the father of the victim, but as that does not establish any relationship between the approver and the appellant, her statement cannot but be viewed with less suspicion than the statement of any other accomplice. The prosecution relied on the confession of the appellant made before a Magistrate and recorded with all the formalities enjoined by law as a piece of evidence which corroborated the statement of the approver. Sahibzada Nasir Ali, Advocate, who appeared for the appellant at Government expense, urged that the statement of an accomplice though corroborated by retracted confession of the accused could not in law form the basis of the conviction of the accused, because, according to him, both were piece of tainted evidence and, therefore, the retracted confession could not be considered to be such corroboration of the statement of foe approver as to justify the conviction of the accused, and in this connection lelied upon Ali Sher v. The Crown (PLD 1955 BJ 1). In the case relied upon the retracted confession of the accused which had been rejected by the trial Court was sought in the appellate Court to be used as a piece of evidence to corroborate the statement of the approver. In the appellate Court the confession was not held to be admissible, but one of the two learned Judges who heard the appeal remarked in the course of his judgment that a retracted confession could not be used to corroborate the statement of an approver. In view of the finding that the confession was inadmissible in evidence the remark made in passing relied upon by the learned counsel was in the nature of an obiter dicta and not entitled to any weight. It appears to me that the statement of an accomplice and a retracted confession of the present type do not stand on the same footing. The principle contained in illustration 'B' to section 114 of the Evidence Act that an accomplice may be presumed to be unworthy of credit unless corroborated in material particulars has been acted upon by Courts all over the civilised world for such a long time that it has become a rule of law that without corroboration in material particulars the statement of an accomplice is insufficient for basing a conviction on. This, however, is not true of a retracted judicial confession, and as far as I know, was never said even about a retracted extrajudicial confession before the decision of the Federal Court of Pakistan in Abdul Latif. v. The Crown (Pak. L R 1952 Lah. 381=P L D 1952 F C 113) wherein it was remarked that it had become a rule of law that a retracted extrajudicial confession could not by itself form the basis of a conviction. The view expressed in Abdul Latif v. The Crown was to some extent amended in Qutba v. The Crown (PLD 1954 FC 197) wherein it was said that the rule of practice that a conviction should not be based on a retracted extrajudicial confession had become virtually a rule of law. What the Federal Court said with regard to an extrajudicial confession cannot apply to a confession recorded by a Magistrate after complying with all the formalities enjoined by section 164 of the Code of Criminal Procedure. In the first place, a judicial confession is contained in a document while extrajudicial confessions are in an overwhelming majority of cases dependent on oral testimony. Then there is the fact that a judicial confession is recorded after its maker has been given a warning that it will be used as evidence against him, while a warning of that kind is not necessary in the case of an extrajudicial confession. No provision of law requires or even limits that a retracted judicial confession must be corroborated in material particulars before it can form the basis of a conviction but prudence certainly requires that a retracted confession should be corroborated before ‑basing a conviction on it. The law requires that the statement of an accomplice should be corroborated before a conviction can be based on it but it is a piece of evidence, just as a retracted judicial confession is, and whether or not these two pieces of evidence should be held sufficient for the conviction of the maker of the c confession is not a question of law but essentially one of fact, decision of which must depend on the circumstances of each case. In the present case the approver has not been shown to have had any motive to falsely accuse the appellant and the confession which the appellant made before a Magis trate of the first class on 1st February 1956 was recorded after giving the appellant enough warning that the confession will be used as evidence against him and after giving him more than ample time to consider whether or not he should furnish the prosecution with a piece of evidence against himself, and I am of the opinion that the retracted confession of the appellant is ample corroboration of the deposition of the approver and vice versa. If the statement of the approver had stood without the retracted confession, I could not have upheld the conviction of the appellant though I am satisfied that the approver had stated the truth and if the retracted confession of the appellant had stood without the statement of the approver, I could but would not have upheld his conviction in spite of the fact that I am of the view that the confession, in addition to being voluntary, was true, but standing together these two pieces of evidence prove beyond all reasonable doubt that the appellant had taken in the incident which brought about the death of the husband of the approver, the part ascribed to him by her and admitted by himself in his confession. The doctor, who performed the post‑mortem examina tion on the dead body, found thereon the following injuries :‑ (1) Four transverse linear abrasions on the front of left side of neck, 2" below the lobe of the left ear, varying from 1/12'' to 1/4" over an area of 1'' x 1''. (2) Six linear abrasions, '' below the lower jaw, on left vide, varying 1/12'' to 1/4'' over an area of 1" x 1'', (3) Two linear abrasions, '' in front of injury No. 2, 1/16'' x 1/8''. (4) Two linear transverse abrasions on right side of neck, 1 " below the lower jaw, 1/32'' x 1/8". (5) An abrasion, 1'' below the bend of lower jaw, on right side, 1/16'' x 1/16''. (6) Six linear abrasions, 1 '' above the right clavical, varying from 1/8'' x 1/32". (7) Linear abrasion on left foot, 2'' in front of medial malleolus, 1/4" in length. (8) Two linear abrasions on the inner side of left ankle, '' and 1/8''. (9) Transverse linear scratch on outer side of right leg, 4'' above the ankle, '' in size. (10) Abrasion on left eyebrow at its inner part, 1/8' x 1/8'. Apart from the other circumstances, the number and nature of the injuries point towards the intention of the appellant being the causing of immediate death of the victim and, therefore, his conviction under section 302, P. P. C. cannot but be maintained. This leaves only the question of sentence to be dealt with. It was a heinous crime which led to the murder of a man who was related to the appellant. This relationship itself would militate against any leniency in sentence being shown to the appellant, but when one considers that the father off the victim had brought the appellant up, the crime of the appellant stands out as one for which only the capital sentence is appropriate. I would, therefore, dismiss the appeal and confirm the sentence of death. YAQUB ALI, J.‑I agree. A.H. Appeal dismissed.