P L D 1953 Lahore 49 (PLP)

MUHAMMAD JAN, J.‑

Muhammad Sadiq, aged about 16 years, his brother Malik aged about 25 years, their nephews Muhammada aged about 18 years and Bashir aged about 16 years, and their servant Hakam aged about 23 years, were tried on charges under section 148, 302 and 201 read with section 149, P. P. C. Sadiq, Malik and Muhammada were convicted under section 302, P. P. C. and sentenced to transportation for life. They were also convicted under section 201 and sentenced to four years' rigorous imprisonment each. The sentences were order to run concurrently. Hakam and Bashir were acquitted. The convicts have appealed. The prosecution case is that Allah Ditta, barber, aged about 28 years, was a friend of Sadiq and Malik who are Jats of village Sukhoke, District Sialkot. Mst. Sakina Bibi, sister of Malik and Sadiqappellants, was marriedto oneSuba, belonging to Gujranwala District. She lost her husband some years ago and was left with some property and four children, two sons and two daughters. Malik and Sadiq asked Allah Ditta to go to Sakina Bibi and look after her property. He did so about a year before the occurrence and after some time entered into sexual relations with her. Then he took her to Jhelum where she made an application to a Magistrate that she wished to get married. After that Allah Ditta and Sakina Bibi went to Rawalpindi, got married and started living there. Sadiq and Malik were angry about it, because Allah Ditta was a kammin, and said that they would kill Allah Ditta when they found a suitable opportunity. On 26th April 1951, Allah Ditta came to his brother Allah Rakha in village Sukhoke because he wanted some money. The next day, Sadiq and Malik came to know about it and sent Ghulam Haider Gill (P. W. 9) to the house of Allah Rakha with a message that he should turn Allah Ditta out of the village immediately. Ghulam Haider went and told Allah Rakha that the appellants were preparing to kill Allah Ditta and he should be sent away immediately. Allah Rakha, in order to put off the appellants, replied that Allah Ditta had already gone. Ghulam Haider went back to the appellants and told them what Allah Rakha had said. When Ghulam Haider spoke to Allah Rakha, Allah Ditta was in the next room and heard the conversation. He became frightened and left his brother's house for Rawalpindi at about 10 or 11 p. m. Allah Ditta gave him Rs. 20, about three seers of ghee in a small tin, some sevian and gur in a canvas bag. According to Allah Rakha, he was carrying a green blanket and wearing a white shirt, a loin cloth with blank border and a pair of black boots. Some five or six days later, Allah Rakha received a letter from Mst. Sakina Bibi, enquir ing about her husband who had not returned home. This alarmed Allah Rakha and he feared that his brother might have been killed. He went to Rawalpindi and enquireda bout his brother but failed to find him there. Then he and Sakina Bibi came to Wazirabad, and leaving Sakina Bibi there because he was afraid of bringing her to Sukhoke, Allah Rakha came to the village alone. He told some people that his brother was missing and a search was made for him in several villages but he could not be found. Allah Rakha then went to Police Station Daska on the 9th May 1951 and made the report Exh. P. B., setting out the facts mentioned above. The police came to Subkoke at about 9 p.m. the same day and started investigation. On the next day, i.e., 10th May 1951, at about 9 p.m. Malik appellant made a statement that he had burled the dead body of Allah Ditta in a field near Nanuwala well and, taking the police there, pointed out the place where he had buried it. The place was dug up and the body of Allah Ditta was recovered, wrapped in the lot (Exh. P. 6) mentioned in the F. I. R. There was a danda (Exh. P. 9) lying beside the body. Allah Rakha identified the body as that of his brother. It was sent for post‑mortem examination to Sialkot and Dr. Hamid Musa (P. W. 1) found that it had a contused wound on the left knee, a contused wound on the right knee, a contused wound on the occipital region, 2 " x " and a contused wound on the left temporal region, 1 " x ". Three central incisors were broken in the upper jaw and the lower jaw was fractured. On dissection, the temporal and parietal bones of both sides of the head and the frontal bone were found to have been smashed. The injuries were caused with some blunt weapons and were sufficient in the ordinary course of nature to cause death. In the report made by Allah Rakha on 9th May, he had expressed suspicion against Sadiq, Malik and their father, Dad. Abdur Razzaq A. S. I. (P. W. 22), after 24 hours' investigation, came to the conclusion that the suspicion against Dad was founded and that Sadiq, Malik, Muhammada, Bashir and Hakam were concerned in the case. He accordingly arrested Sadiq, Malik, Bashir and Hakam, who lived in village Sukhoke, on the night of 10th May. Muhammada accused lived in another village and was not arrested that night. On the next day, i.e., 11th May 1951, Sadiq appellant took the police to his well known as Jharanwala and produced a canvas bag (Exh. P. 2) containing a pair of black boots (Exh. P. 6), from beneath some bhusa in his kotha. Malik appellant then took the police to a place situated towards the south of the village and pointed out some bloodstained earth where the deceased was alleged to have been killed. The blood, on chemical examination, was found to be of human origin. The A. S. I. went back to Police Station Daska on 13th May 1951 and returned to Sukhoke on 15th May 1951. The next day, i.e., on 16th May, 1951, he went to village Parthanwala and arrested Muhammada appellant. He said that he had buried certain articles in a field near Chah Nawan and, taking the police there, produced a tin box (Exh. P. 1) a loin cloth with black border (Exh. P. 3) and a white shirt (Exh. P. 4). These articles, like the blanket, the canvas bag and the pair of black boots, were mentioned in the F.

1. R. A new sweater was also mentioned in the F. I. R. which has not been recovered. Muhammada expressed willingness to make a confession before a Magistrate and was produced before Chaudhry Khurshid Ahmad, Magistrate 1st Class, on 17th May 1951. He was duly warned by the Magistrate and given time to consider whether he would make a statement in spite of the warning given to him. After about an hour, Muhammada was asked by the Magistrate what he wanted to do and he said that he wanted to make a statement which was duly recorded and certified by the Magistrate as having been voluntarily made. The statement (Exh. P. V.) is as follows:‑ "I had been betrothed in the house of Dad Jat of Sukhoke Malik, the younger son of Dad came over to our village at about Chhawela, 20/21 days back. He demanded a bullock from us and in exchange thereof wanted to give behra and also promised to pay Rs. 200 at the time of wheat harvest. I and Malik set out for his village taking along the bullocks, so that I could bring the behra. We approached in the evening at Jharanwala well and I lay down at the well. Malik went (to the sic) house, After taking his meals lie brought meals for me. We both slept there. Sadiq, elder brother of Malik, came up and awakened us and asked us to go to Nanowala well and fetch Basher. We brought him here. Then Sadiq asked me and Bashir to call Hakam Christian from Nanowala well. We fetched him also. When we all five were together, then Sadiq told us that Ditta barber, who had abducted our sister, has to‑day come to the village, whom we want to kill and you should help us. Consequently we reached together under a banian tree in the village. There Haider Bajwa met us, who was deputed by Sadiq to call Haider Gill. Haider Gill also came up whom Sadiq asked to go and see whether Ditta deceased barber is at home or not. He, (Haider Gill) said that Ditta barber deceased had gone away. Sadiq asked us to go and enquire about (Ditta). Consequently we all five, i.e., I, Bashir, Sadiq, Malik and Hakam Christian, sat down in the khola of Karam Din lohar. Sadiq ascended the kothas of the faqirs, who prohibited him, and he then came to us. Ditta barber came out of his house and we followed him. Passing the marhis, when he (Ditta) came in the fields, Malik went and inflicted on him a sota blow with which Ditta barber deceased fell down. Sadiq went and gave him 5/6 blows with a dang. Ditta deceased became senseless. Then Sadiq and Malik accused tied his head with the loi and gave more blows on it with which the deceased died. Taking off the chadar of the deceased, the accused tied his legs and removing his shirt, tied his arms with it. His (Ditta's) ghee, sevian and black boots were picked up by Hakam Christian. Malik and Sadiq accused lifted the dead body by putting it on a dang. Then we brought the dead body on The dead body was placed in a field adjoining Nanowala well. Hakam Christian brought a spade and they four dug a pit. I sat near and saw it. They threw the dead body in the pit and closed it. The gur which was with the sevian, was eaten by us all. They put the gee in their patili and gave me a shirt, dhoti and gee tin and at the same time told me to untie the behra and take it away and to bury these things whenever I could find an opportunity. I came over to my village. On my well which is known as Nawan Khub, In my field towards the north, I buried the three articles belonging to the deceased. Consequently, only yesterday, I pointed out and got these articles recovered". The learned counsel for the appellants has argued that this is not a confession, because it does not incriminate the maker. We, do not agree. In our opinion, this statement clearly incriminates the maker. The learned counsel points out that no injuries are shown in this statement to have been caused to the deceased by Muhammada and that he is shown as having only sat and watched whilst the other four accused are said to have buried the body. Muhammada has, however, clearly admitted that he was one of the five persons who had conspired to kill the deceased and that he had accompanied the others voluntarily to accomplish their object. He has further admitted that he took away the property of the deceased and buried it in his field. We do not agree with the learned counsel that Muhammada, not knowing law, must have imagined that the statement he was making was exculpatory. Reading the confession as a whole, it is by no means an exculpatory statement. It is true, as held in Pakala Narayanaswami v. Emperor (A I R 1939 P C 47), that a confession must either admit in terms Vie offence or, at any rate, substantially all the facts which constitute the offence. The admission of an incriminating fact, however grave, is not of itself a confession if it is capable of as innocent explanation for example, the admission by a man that the weapon with which an offence has been committed belongs to him. Similarly a statement that contains self‑exculpatory matter cannot amount to a confession, if the exculpatory statement relates to some fact which, if true, would negative the offence alleged to be confessed. We can find no self‑exculpatory matter in the statement of Muhammada, which, if true, would negative the offence alleged to be committed and the facts admitted by him clearly constitute the offence with which he was charged. The learned counsel has also argued that the confession cannot be true, because there is no explanation contained in it about the injuries on the deceased's knees. The deceased was stated to have been beaten with sticks and the injuries on his knees as well as on his head could have been caused with sticks. The real points to be considered in connection with this confession are whether it was voluntarily made, whether it has been sufficiently corroborated and what is its value against the maker, who has retracted it, and against his co‑accused. As regards the voluntary nature of the confession, it was argued that the police had come to know about the participation of Muhammada in this crime shortly after their arrival and there was no reason for not calling him at once from his village which was only a few miles away. The only reason given by the Sub‑Inspector for not calling Muhammada and taking him into custody before the 16th May 1951, although he had learnt about his participation fn the crime on the 9th May 1951, is that Muhammada was living in an other village. That village was only about three miles away and the reason given by the Sub‑Inspector does not seem to be convincing. We have a suspicion that Muhammada was made to join the investigation on or about the 10th May and is said to have been taken into custody from his village Parthanwala on the 16th May in order to show that he had not been i In police custody for any appreciable time before making the con fession. Mr. Khurshid Ahmad Magistrate did not ask Muhammada since when he had been in police custody and we are not free from doubt about the confession having been made without any pressure or persuasion. The voluntary nature of the confession having come into doubt, we prefer to exclude it from con sideration. That leaves only the evidence of recoveries against the appellants, Muhammada denied the production of the tin (Exh. P. 1), the loin cloth (Exh. P. 3) and the shirt (Exh. P. 4) and the learned counsel for the defence has argued that the alleged recovery of these articles at the instance of Muhammada is not true, because the Sub‑Inspector says that the articles were buried underground whereas Muhammad Khan and Mashuk Ali say that they were lying on the ground. The recovery memo. (Exh. P. K.), which was attested by Muhammad Khan and Mashuq Ali, clearly shows that the articles in question were buried under ground and corroborates the statement of the Sub‑Inspector. We consider that the recovery of the tin box, the loin cloth and the shirt, on information given by and at the pointing out of Muhammada, has been satisfactorily proved. The recovery of the dead body at the pointing out of Malik appellant is deposed to by Barkat Ali (P. W. 14), Muhammad Yusuf (P. W. 16) and Ghulam Hussain (P. W. 17), besides the A. S. I. Abdul Razzaq (P. W. 22). The A. S. I. prepared the recovery memo. Exh. P. H. and it was attested by the above named witnesses. We have gone through their evidence and can see no reason to doubt that the dead body was recovered on infor mation given by Malik appellant and at his pointing out. Barkat Ali has stated that the body could not be identified but he has admitted that Allah Rakha P. W. did identify it as that of his brother. We have seen a photograph of the dead body which is on the record and, in our opinion, the body appears to have been perfectly capable of identification by anyone who knew the deceased. The recovery of the canvas bag Exh. P. 2, and a pair of boots Exh. P. 6, from the kotha of Muhammad Sadiq appellant is testified to by Abdul Razzaq. A. S. I. and Ghulam Hussain (P. W. 17). Abdul Razzaq has stated that Muhammad Sadiq appellant broke open the lock of his kotha and entered it. This is supported by the recovery memo. Exh. P. Q., attested by Ghulam Hussain. But Ghulam Hussain, in cross‑examination, said that Muhammad Sadiq opened the lock with a key. Ghulam Hussain is a Jat like the appellants and we believe that this was an attempt on his part to help Muhammad Sadiq appellant just as Muhammad Khan Jat and Mashuk Ali Rajput tried to help Muhammad Din Appellant by saying that the articles produced by him were lying on the ground. Allah Ditta deceased was only a kammin and Ghulam Hussain went to the length of saying that the bag produced by Muhammad Sadiq appellant contained nothing but then thought the better of it and admitted that it contained the pair of boots. We prefer to accept the evidence of the A. S. I., corroborated as it is by memo. Exhs. P. K. and P. Q., in respect of the recoveries from Muhammad Sadiq and Muhammad Din appellants. There are no discrepancies in respect of the production of the dead body by Malik appellant. We are satisfied that the dead body was produced by Malik appellant, the canvas bag and the pair of boots by Muhammad Sadiq appellant and the shirt, loin cloth and tin by Muhammada Appellant. The body and the articles mentioned above were identified by Allah Rakha, brother of the deceased. The property recovered was not claimed by any of the appellants and it was mentioned in the report long before it was recovered. We have no reason to doubt that it belonged to the deceased. It was urged that a white sweater and Rs. 20 were also stated in the report to have been in the possession of the deceased and they have not been produced by anyone. This is not difficult to understand. This money was easily con vertible and the sweater was new and, perhaps, too good to be thrown away. Another argument raised is that the articles re covered from the possession of Muhammad Sadiq and Muhammad Din appellants could also have been buried with the dead body. That is true but, may be, the appellants were not inclined to be wasteful. For a moment the thought occurred to us that these articles might have been found buried with the dead body and falsely said to have been produced by Muhammad Sadiq and Muhammada appellants. But, if that were so, the articles being five in number, some of them could have been said to have been recovered from the possession of Bashir and Hakam accused. Nothing was said to have been recovered from them and for that reason they were acquitted. After hearing the learned counsel for both sides and going through the evidence, we are satisfied that the recoveries in this case are genuine. But recoveries without the confession do not prove the offence of murder against the appellants. We there fore acquit them of the charge under section 302, P. P. C., but maintain their conviction under section 201, P. P. C. The only question that remains relates to the proper sentence in this case. Persons guilty under section 201, P. P. C., are punishable with imprisonment which may extend to seven years if they knew or had reason to believe that the offence of which they were removing the evidence was punishable with death; but if such offence is punishable with only transportation for life or imprisonment up to ten years, then the offenders are punishable with imprisonment which may extend to three years only. It was argued that it has not been proved that the appellants committed the murder and there is nothing to show that they knew or had reason to believe that the offence of which they were causing the evidence to disappear was punishable with death. Although to be on the safe side, we have excluded the confession from declaration and acquitted the appellants of the charge of murder, the circumstances of this case clearly show that the appellants had the motive to kill the deceased, they were seen following him shortly before he disappeared and they knew that the offence in question was punishable with death. We maintain their conviction under section 201, P. P. C. and the sentence of four years' rigorous imprisonment each passed against them. A. H. Appeal partly allowed.