P L D 1973 Lahore 714 (PLP)

Ramzan v. The State P L D 1960 Lah. 24 and Minhun alias Gul Hasan v. The State P L D 1964 S C 813 rel. (i) Evidence‑-- Corroboration‑--Tainted evidence cannot be used as corroboration of other similar evidence

‑Penal Code (XLV of 1860), Ss. 376 & 302‑

Criminal Procedure Code (V of 1898), S.

164. Wazir v. The State P L D 1960 Kar. 674; Minhun alias Gul Hasan v. The State P L D 19 44 S C 813 and Barkat v. The State 1968 S C M R 685 rel. (j) Penal Code (XLV of 1860), Ss. 302 & 376‑

Benefit of doubt

Extra‑judicial confession, judicial confession, recovery of semen and blood‑stained safa

‑Not proved

‑Only other evidence to connect accused with crime: recovery of dead body of victim from a trunk lying tin accused's house

‑Recovery, held, could only create suspicion against accused‑Suspicion, however, cannot take place of proof‑

Accused given benefit of doubt and acquitted. Muhammad Alam v. The State P L D 1960 Lah. 71 rel. R. A. Jeremy for Appellant. Irshad Ahmad for A.G. for the State. Date of hearing: 17th November 1972. Manzoor son of Shamira, caste Jarola, aged 26, a cultivator of Chak No. 10/18‑R of Police Station Talamba was convicted under section 376, P. P. C. and sentenced to imprisonment for life by then Additional Sessions Judge, Multan, for having committed rape on his minor step‑daughter Mst. Amiran aged 10/11 years resulting In her death vide his judgment dated 16th April 1970, which forms the subject‑matter of this appeal.

2. The prosecution case as originally reported to the police by Manzur appellant himself was that he had married Mst. Dullan widow of Khadim Hussain (his maternal uncle) about a year prior to this occurrence. She had brought along with her three children Haq Nawaz, aged 9/10 years, Mst. Amiran (deceased) aged 7/8 years and Mst. Sakina aged 5/6 years who were living with him in his house. On the fateful day he and his wife Mat. Dullan had gone to Khanewal to enquire about the health of Mst. Salim Khatun alias Shamoo, her sister, leaving the children at the house. They returned in the evening and found Haq Nawaz alone in the house while Mst. Amiran (deceased) and Mst. Sakina were not present there. His wife went out in search for them and brought Mst. Sakina from the house of Pehiwan Sanpal, but could not find out Ust. Amiran (deceased) there. They continued to search for her in vain till late in the night when they went to sleep and in the morning sent Haq Nawaz to the house of his uncle to enquire about her but she was not found there either Manzoor appellant himself went to the house of Farid Sanpal as Mst. Amiran used to spend her day in playing with his daughters, but did not find her there too and on return to his house he was informed that Mst. Amiran was lying dead in a trunk but there was no external mark of injury or violence on her body. According to him Mst. Amiran (deceased) appeared to have been trapped in the empty trunk while playing therein and had met an. accidental death on account of suffocation. Their bewailing and crying brought Zulfiqar Hussain Lambardar. Tahmasap Khan, Farid Rehmat and others to their house, who sent him to the police about it. On their way they came to know that Ghulam Rasool, Sub‑Inspector (P. W. 13) was present in Chak No. 21/8‑R, and contacting him there they informed him about the occurrence, who recorded the statement Exh. P. D. of Manzoor and forwarded the same to the police station through Foot Constable Muhammad Luqman where Manzoor Hussain Moharrir, A. S. T. (P. W. 9) made an entry about it in the daily diary. Ghulam Rasool S. I. then accompanied Manzar appellant to the spot and reaching there at 6‑0J p.m. took the dead body of Mst. Amiran in his custody and despatched it to the mortuary under the escort of Foot Constable Muhammad Hussain (P. W. 8) vide his application Exh. P. F. after the preparation of the inquest report Exh. P. E. and to wait the report of the doctor he (the Sub‑Inspector) returned to the police station.

3. On 16th June 1968, at 11‑00 p.m. Dr. Mushtaq Ahmad (P. W. 1) held autopsy on the dead body of Mst. Amiran vide Exh. P. G. and observed as under:‑ "The dead body of a girl of 10 or 11 years with her eyes and mouth closed and frothy fluid coming out of her nose with green bluish skin peeled of from buttocks and knees and found following injuries over it: (1) Abrasions on the knees, elbow and buttocks. (2) Vaginal walls and hymen torn, labia minora lacerated. The death was due to shock from vaginal injuries which were sufficient to cause death in the ordinary course of nature". The doctor handed over a sealed cover containing the vaginal swabs and clothes of the deceased along with trunk (P. W.) and the report Exh. P. G. to Foot Constable Muhammad Hussain P. W. which he produced before Manzoor Hussain, Moharrir A. S. I. on the same day vide Exit. P. C.

4. In the light of this report Manzoor Hussain (P. W. 9) registered a case under sections 376/302, P. P. C. and drawing up the formal first information report Exh. P. J. proceeded to the spot for investigation of the case. He remained in the Chak for two days, viz. 17th and 18th of June 1968, bus could not come to any definite conclusion in the matter. He was relieve of the Investigation by Ghulam Rasool, Sub‑Inspector, at 9‑00 p.m. on the 18th of June 1968. On 19th June 1968, early in the morning Manzoor appellant is said to have contacted Taj Muhammad Shah (P. W. 10) in his Baithak and made an extra judicial confession before him in the presence of Zulfiqar Hussain (P. W. 11) and Tehmasap Khan. He told them that he had committed rape on Mst. Amiran as a result of which she died and that he had placed her dead body in the trunk and lodged a false report to the police about it. They accordingly produced him before Sub‑Inspector Ghulam Rasool, who was staying at the dera of Zulfiqar Hussain P. W. On this disclosure he was arrested and while in custody he led to the recovery of a safa from underneath an earthen bin in his house, which was taken into possession and sealed into a parcel vide Exh. P. A. On 20th June 1968 the Sub‑Inspector handed over this sealed parcel to Manzoor Hussain, Moharrir A. S. I. On the same day Manzoor appellant offered to make confession in Court, so Sub‑Inspector Ghulam Rasool took him to Khanewal and produced him before Sh. Abdul Aziz, Magistrate 1st Class, on 21st June 1968 vide application Exh. P. L., who remanded him to judicial lock‑up as a precautionary measure and recorded his confessional statement Exh. P. M. under section 164, Cc. P. C. on the next day. The sealed parcel sent by the doctor to the police station along with the post‑mortem report and that of safa (P. 1) were forwarded by the Moharrir to the Chemical Examiner in due course and his analysis revealed that the swabs, shirt, chadar and dopatta of Mst. Amiran deceased and Safa (P. 1) of Manzoor appellant were stained with semen and blood vide his reports Exhs. P. H. and P. O. This blood was traced by the Serologist as that of human origin vide his report Exh. P. Q. Moharrir A. S. I. Manzoor Hussain P. W. got prepared site plan Exh. P. K. with its duplicates Exh. P. K/1 and P. K./2 from Muhammad Wasi Draftsman (P. W. 12) and putting his notes on the same in red ink signed it in token of its correctness.

5. On the completion of the investigation Manzoor appellant was put on trial on the basis of his extra judicial confession before Taj Muhammad Shah (P. W. 10) in the presence of Zulfiqar Hussain (P. W. 11) on 19th June 1968 followed by his confessional statement (Exh. P. M.) recorded under section 164, Cr. P. C. on 22nd June 1968 which rendered in English read as under:‑ "I married Mst. Dullan about one year ago. Prior to it she was married to my maternal uncle, Khadim Hussain who had died. From Khadim Hussain she bad three children, namely, a son Haqnawaz and two sisters, Mst. Amiran and Mst. Sakina: After my marriage, the children lived with their mother in my house. The age of Mst. Amtran was 8 years. Nine days ago, in the morning my wife, Mat. Dullan left for Khanewal to see her ailing sister, Mst. Salim Khatoon. I woke in the morning and my children had informed me about the departure of my wife. I baked breads. I purchased melons from Ali Muhammad and after eating them, I went to sleep. My sisters Mst. Sadaqan and Mst. Rajjan came. Firstly I was married to Mst. Manzuran, my cousin. They had come to ask me to divorce her. They took me to their bhaini. At digerwela I came back. Then I went to a shoe‑maker to get my shoe. In the way, I met Pehlwan Sanpal. He told me that Muhammad shoe‑maker was not in his house. I went to my own house. Haqnawaz and Mst. Sakina were not in the house. Mst. Amiran was in the house and was playing. Her thighs were naked. On seeing them, Satan prevailed on me and instigated me. I spread a safa and started to commit sexual intercourse with her. She became unconscious. She started writhing. I lifted her and placed her into an empty trunk and closed the lid. I went to my bhaini again. At Isha prayers I came to my house. In the chowk, I came across Mst. Dullan and enquired from her where she was coming from. She told me that she had gone to Khanewal and that Mst. Amiran was missing. I brought her to my house and told her that she must have gone to the bhalni of her uncle and we would enquire in the morning. I passed my night in the bhalni and did not sleep at the house. I returned in the evening and Mst. Dullan told me that Mst. Amiran did not return. I went to the bhalni of Farid Sanpal to see him. When I returned, Amir Tarkhan told me that the dead body of Mst. Amiran was found in the trunk. I went to my house. Zulfiqar, Tahmasap Khan, Farid and Rehma met me in the chowk. They advised me to report the matter to the police at once. I had committed rape on Mst. Amiran as a result of which she bad died. I had placed her in the trunk." Learned trial Judge accepting the evidence of these confessions duly supported by the recovery of semen and blood‑stained safe (P.1) at his Instance convicted Manzoor appellant which finding has been assailed before me on the ground of absence of any independent evidence to establish the voluntary nature and truth of these confessions which had been retracted by the appellant at the earliest opportunity, the former as being false and the latter as obtained under duress during his illegal custody without any corroboration from some independent source. On being taken through the record I am inclined to agree with these contentions of the learned counsel.

6. As would appear from the above narration there was no direct or circumstantial evidence to connect the appellant with the alleged crime in this case. Even Mst. Dullan, the mother of Mst. Amiran (deceased) had been given up who was to depose about the earliest disclosure made by the appellant about it so the prosecution evidence called for a close scrutiny to determine if these confessions were voluntary, true and free of any taint depicted in section 24 of the Evidence Act and whether there was any satisfactory circumstantial evidence to corroborate the same so as to desolve the resultant doubts about it. With this object in view I would first take up the evidence of extra‑judicial confession which I am afraid did not inspire confidence at all as one of its two witnesses, namely, Zulfiqar Hussain (P. W. 11 was the sworn enemy of the appellant while the other, namely, Taj Muhammad Shah (P. W. 10) was his party-man. The former had admitted in his own statement at the trial that he had appeared as a P. W. In a theft case against the appellant and had friendly relations with Taj Muhammad Shah P. W. and Tehmasap Khan (given up P. W.). This was not a mere conces sions made by him In favour of the appellant but was an actual fact as would be borne out by the testimony of Pathana (P W. 5), who had deposed that there was party‑faction in the village, the accused (appellant) his two brothers, Ramzan and Nusrat being on one side and Taj Muhammad Shah, Zulfiqar Hussain P. Ws. and Tehmasap Khan (given up P. W.) on the other. In this background it did not appeal to reason that the appellant could have chosen these persons to unburden his mind before them and seek their assistance in the matter, although the police had failed to collect an iota of evidence against him till then. In fact they were close associates of the local police, who had been joined in the Investigation of this case from the very outset and were housing the police party since its arrival in the village. Sub‑Inspector Ghulam Rasool was staying in the house of Zulfiqar Hussain P. W. who was admittedly supplying food etc. to him and his staff, white the other witness Taj Muhammad Shah being a Lambardar was under his thumb. Any how the testimony of both these witnesses Taj Muhammad Shah and Zulfiqar Hussain was bristling with discrepancies about it which did not permit of implicit reliance on them. To crown all this 'Taj Muhammad Shah being a Lambardar was a person in authority, who had admittedly advised the appellant that if he had committed this offence he should appear before the police and save his family from destruction and humiliation when the Sub‑Inspector was infect putting up at that time in the house adjoining his baithak where the appellant is said to have contacted him at that unearthly hour of the fateful morning. It was a clear threat girbed in unequivocal terms about the consequences that may befall him if he adopted any other course as within a few moments the appellant tamely made a clean breast of the whole affair followed by his immediate production before the Sub‑Inspector In the house of Zulfiqar Hussain P. W. where without any further hesitation he is said to have made this disclosure and also led to recovery of the semen and blood‑stained safa (P. 1) in the presence of these very two witnesses. The Sub -Inspector then whisked him away from place to place and produced him before the Resident Magistrate after two days to get his statement transformed into a judicial confession. In fact the extra‑judicial confession and its successor the judicial confession were so closely linked up together as to form two parts of one coherent whole that ft gave a clear indication of having been Improperly obtained by the police including the recovery of safa (P. 1).

7. It will not be out of place to mention here that after the proceedings under section 175, Cr. P. C. (the inquest) at the spot Sub‑Inspector Ghulam Rasool abruptly left the village of the appellant on the pretext of attending to some other more important work leaving behind his A. S. I. Manzoor Hussain (P. W. 9), who, admittedly made no contribution to the investiga tion during the two days, viz. 17th and 18th of June 1968 except recording the statement of Foot Constable Muhammad Hussain (P. W. 8) about the post‑mortem report and the sealed parcels bought by him from the mortuary. It was all the same strange that no one had seen Manzoor appellant in the village during these two intervening days, where and under what ordeal he had spent this period would be anybody's guess as after emerging from this mysterious hiding of two days he immediately came to the baithak of Taj Muhammad Shah Lambardar in a very disturbed state of mind and tamely made the confession before him after he was warned about the consequences of adopting any other course. This oral extra‑judicial confession is therefore not to be rejected only on account of the partisan character or associa tions of the two witnesses with the police and the hazard involved in relying on their discrepant and divergent statements but also for this apparent threat proceeding from a person in authority like Taj Muhammad Shah Lambardar in the prosecution of the Sub‑Inspector sitting next door to them as was done in Mohammad Alam v. The State (P L D 1960 Lah. 71) and Nazir v. The State (P L D 1960 Lah. 189) and Uarryaw v. The State (P L D 1961 Kar. 731). It was followed by his wrongful detention for more than two days after his formal arrest without any legal order for his remand to police custody. Tile Sub‑Inspector had stated that he had arrested the appellant at 10‑00 a.m. on 19th June 1968 and brought him to Khanewal on 20th June 1968 for obtaining the remand but no Magistrate was present there and he cause to know that the Resident Magistrate had gone to Abdul Hakeem so be took him to that place but did not find him there and came back to Khanewal on the next day, i.e. on 21st June 1968, when he produced him before Ch. Abdul Aziz (Resident Magistrate) vide his application Exh. P. K. He admitted at the same time that he did not go to Kabirwala which was at a distance of nine miles only from Khanewal to produce him before the Tehsildar. He, however, added that he went from Khanewal to Abdul Hakeem via Mian Channu covering a distance of 28 miles but did not produce the appellant before the Naib -Tehsildar at Mian Channu, who was also a Second Class Magistrate. When confronted with this situation he had stated that neither the Tehsildar of Khanewal nor of Kabirwala were found at their headquarters and the same was his explanation about the Naib‑Tehsildar Mian Channu. He, however, conceded that be had not mentioned in any of his zimnis that he had searched for either of them for recording the statement of the appellant. He had even made no mention in the zimni that Sub‑Divisional Magistrate, Khanewal was also absent. The Sub‑Inspector had thus failed to give any satisfactory explanation for retaining him in his custody for more than the statutory period of 24 hours, which was sufficient to show that undue pressure might have been act him during, fl): ~)criod as pleadm, by him at the zaniest opportunity so this confession can be excluded from consideration on this score alone as done in Hamzo v. Th , ~,r,ve (P L D 1960 Kar. 817) a:<

8. In fact his prolonged detention in police custody was illegal on the face of it, but the Magistrate had not bothered the appellant as to when in fact he was arrested to enquire from the appellant for how long and where and under what circumstances he had been kept by the police during this period or what had Induced him to create such a serious situation for himself by making a confession, as prescribed in Chapter 13 of Volume III of the High Court Rules and Orders, and highlighted in Said Beg v. The State (P L D 1958 Lah. 559) laying down a guideline for the Magistrates in discharging this solemn duty. It requires them to make a real endeavour to find out the voluntary nature of the confession suggesting a number of questions other than those printed in the prescribed form for putting to such persons so that it is not performed in a mechanical manner. If any of these questions had been put to the appellant at the time of his production before the Magistrate It might have created in him a sense of free atmosphere and encouraged him to seek the protection of the Court against the high-handedness of the police and would perhaps have brought the cat out of the bag. The Magistrate had no doubt sent him to the judicial lock‑up for a day to disable his mind of arty extraneous influence before recording his statement under section 164, Cr. P. C. but he failed in his duty by omitting to put the necessary questions to him with that end in view which had left no sting in this confessional statement although it bore the stamp of all the legal formalities. It was also urged on behalf of the appellant that he was never taken out of the police influence before recording his statement under section 164, Cr. P. C. as the Magistrate had committed him to the lock‑up at Khanewal which had been temporarily converted into a judicial lock‑up since the establish ment of Sub‑Division at Khanewal. On account of this aspect of the case some doubts lurked in my mind about the alleged transfer of the appellant to judicial custody for composing himself before recording this statement, but I found no satisfactory evidence on the record to resolve my doubts about it so I sent for the present Resident Magistrate at Khanewal and recorded his statement under section 428, Cr. P. C. about the supervision and control of this so‑called judicial lock‑up at Khanewal. His statement had disclosed that it was a police lock‑up for all intents and purposes as it was supervised by a police guard headed by a Head Constable who regulated it by roznamcha as is maintained at all the police stations. A Darban appointed by the local Administration (and not by the Jail Authorities) was, however, there for the supply of meals etc. to the undertdals lodged therein for the night when they are brought from Multan Jail to appear In their cases in the Courts at Khanewal. This witness quite frankly conceded that in this set‑up the local police could indirectly influence any undertrial lodged in that judicial lock‑up through the local staff posted there even if the direct contacts were eliminated, but there was nothing on record to show that he was remanded to this Tehsil lock‑up at Khanewal and not the judicial lock‑up In Multan Jail. Sheikh Abdul Aziz, Magistrate, who recorded his statement had, however, stated in his evidence at the trial that he remanded the accused appellant to "jail" for this period and it was not specifically put to him in his cross‑examination that he was detained in this lock‑up at Khanewal. I had sent for the Roznamcha of the judicial lock‑up at Khanewal through the present Resident Magistrate to examine it if there was any entry about the deten tion of the appellant therein on the relevant day, but it was not available as it had since been destroyed in accordance with Police Rules, so I need not express any view about it in this case. I would, however, like to take up this matter on the Administration side for future guidance of the Magistrates posted at Tehsil or Sub‑Division in this respect.

10. Anyhow the alleged confessional statement Exh. P. M. has to be excluded from consideration as it suffered from yet another legal flaw due to the administration of oath to the appellant before recording it under section 164, Cr. P. C. In contravention of the express provision of section 5 of the Oath Act. It was even conceded in Karam Elahi's case (A I R 1947 Lah. 92) that the Magistrate had acted illegally fn recording his confession (under section 164, Cr. P. C.) on solemn affirmation but it was held curable under section 537, Cr. P. C. unless it actually occasioned a failure of justice. The latter part of this view was however disapproved by the Supreme Court in Mohammad Bakhsh's case (P L D 1956 S C (Pak.) 420). In arriving at this conclusion their Lordships had examined all the relevant provisions including that of sections 24 and 132 of the Evidence Act. Sections 164, 342 and 364 of the Cr. P. C. as also the common law of England about it and observed as under:‑ "We have, therefore, no doubt that the statement under section 164 of the Cr. P. C. was obtained from the prisoner in an illegal manner and its rejection must follow as a matter of course from that illegality". As regards the question of failure of justice or prejudice to the case of the accused their Lordships expressed themselves in the following terms "In the Lahore case cited above Teja Singh, J., seems to have treated this illegality as curable under section 537 of the Cr. P. C, if it did not prejudice the prisoner. We cannot see how an accused person can be said not to have been prejudiced when evidence which the law expressly says shall not be taken against him has been so taken, and the finding is influenced by that evidence. The law so jealously guards against inadmis sible evidence that where a verdict or finding has been influenced by such evidence it enjoins the superior Courts to exclude it and to re‑weigh the remaining evidence in order to decide whether it can sustain the verdict of finding. We have, therefore, no hesitation in holding that the confession cannot be taken into consideration 9n deciding the question of the appellant's guilt." It was apparently the feeling that some element of inducement lurked through the terms of an oath that its administration to an accused person was considered opposed to public policy while recording his confessional statement. It is quite possible that think that to some cases, on account of the oath, an accused may he is bound to state the truth and ho may accordingly come forward with the true story which he might not do if merely asked to fiats whatever he wishes to say about an occurrence. It was in view of this likely effect of the words used by a Magistrate (at the time of recording such statement) on the mind of an ordinary human being that a confessional statement was held inadmissible in evidence in a recent Karachi case, Gulab Khan v. The State (P L D 1971 Kar. 299). The Magistrate in this case after having given the formal warning to the accused had just asked him to state what he believed to be true before God Almighty but although not a formal oath; these words were considered as an oath likely to influence the mind of the deponent. Their Lordships had ruled it (the statement) out of consideration. It was to guard against such an eventuality that section 5 appears to have been incorporated in the Oaths Act so the infringement of this prohibi tory provision would amount to an illegality which cannot be cured by any principle of consent, waiver or estoppel. Even the amendment of 1964 in section 537, Cr. P. C. would not improve the prosecution case in view of the above dictum of their Lordships in Mohammad Bakhsh v. The State.

11. For all these infirmities pointed out above the confessional statement Exh. P. M. has to be excluded from consideration like the extra‑judicial confession of the appellant. Even otherwise both these confessions having been retracted by the appellant as a rule of prudence now firmly established he could not be convicted on the basis of these confessions without substantial corroboration from any independent source, as held in Ramzan v. The State (P L D 1960 Lah. 24) and Minhun atlas Gul Hasan v. The State (P L D 1964 S C 813). Learned trial Judge had relied on the recovery of semen stained safe (P. 1) at the instance of the appellant as one of the factors providing the requisite corroboration but as pointed out above this recovery was sought to be proved by the evidence of the same set of two witnesses which had been discarded about the extra‑judicial confession Itself, so this recovery was not free from doubt as well. In fact the corroboration of the confessional statement was sought from the extra‑judicial confession but different items of tainted evidence which required corroboration for itself before the other as held is Wazir v. The State (P L D 1960 Kar. 674) and Minhun alias Gul Hasan v. The State as also in Barka v. The State (1908 S C 9 R 685).

12. As a result of this discussion all the three sets of evidence viz. the extra‑judicial confession, the judicial confession and the recovery of semen and blood‑stained safe (P. 1) having been eliminated there was no other evidence to connect the appellant with the alleged offence except the recovery of the dead body from a trunk lying in his house which could only create a suspicion against him that he might have some hand in the affair but suspicion however strong could not take the place of proof, so no conviction could be based on bare suspicion against any person as held in Muhammad Alam v. The State (P L D 1960 Lah. 726). I have, therefore, to give the benefit of all these doubts to the appellant and accepting this appeal direct that he shall be set at liberty if not required in any other case by the police. S. A. H. Appeal allowed.