P L D 1964 Supreme Court 216 (PLP)

CORNELIUS, C. J.‑Special leave was given to the appellant Qibla Alam to appeal against his conviction and sentence of death for the murder of one Saddar Jan, which were confirmed by the High Court. The case comes from the district of Bannu which is close to the western frontier and adjoins a tribal area. The deceased Saddar Jan belonged to the tribal area. He was a friend of the appellant Qibla Alam. His dead body was found on the 30th January 1962, lying in a field. The report was made at the Police, Picket Bannu Bridge, and thereafter information was sent to the Police Station at Bannu proper and the body which up to that time had not been identified, was recognised by some members of the Saidgi tribe, who were summoned from the neighbouring tribal area. The Investigating Officer, Aman Ullah Khan, P. W. 18, discovered that a few days earlier, Saddar Khan had been seen at a certain place in the company of Qibla Alam. It was also learnt that a brother of Saddar Jan named Zanjir Gul had some two years previously, murdered one Abdullah Jan, brother‑in‑law to Qibla Alam. Accordingly, the investigation was turned upon Qibla Alam, who was not immediately to be found. On examination of his house a lead bullet was found embedded in a wall which was taken into possession. On the 1st February 1962, Qibla Alam was traced. Interrogation produced no result, until on the 13th February 1962, the Investigating Officer found (or pretended to find) stains of blood on Qibla Alam's coat, Exh. P. 6, and accordingly took it into possession. The following day, Qibla Alam began to furnish information and several recoveries were made. The framework of a charpoy was found from which the string had been removed and was said to have been burnt. A stain of blood was noticed on one of the side pieces, and a piece was removed. Qibla Alam also produced from a field near his house a bullet, Exh. P. 9, which he said he had thrown there, and from a sugarcane field, he brought out a pair of chaplis, Exh. P.

8. From statements made by Qibla Alam and his wife, the name of a second accused person, Gulzar (alias Khar Malik) was discovered and he was also arrested. In the meantime, Qibla Alam had agreed to make a confession, and on the 15th February 1962, he was produced before a Magistrate, Syed Mutiullah Shah, P. W. 4, who applied all the necessary precautions including the grant of time to con sider whether he would confess. Qibla Alam then made a confes sion which was briefly to the following effect :‑ Saddar Jan was a friend of mine and used to visit me. One evening he came to my house to stay the night. We had finished our dinner when Khar Malik came there. He had a gilty rifle. Khar Malik made a jirga with me saying `I will give you Rs.

500. Let us kill Saddar Jan. I agreed. All three of us went to sleep in a kotha belonging to me. About midnight, Khar Malik fired at Saddar Jan. He was injured. I awoke. Khar Malik fired again and again injured him, and he started to cry out. I then gave blows on Saddar Jan's head with a kulhari, which was lying in the kotha. I may have given him four blows. It was because he was making noise that I gave him those blows. He became quiet and died. Khar Malik then went away. The body lay in my kotha for a night and a day. The next evening, I called three brothers, Nasim, Hajim and Gul Azam and said to them `Khar Malik has killed this man; for God's sake take the body out of my house and throw it somewhere'. So the four of us carried the body in the net, Exh. P. 3, with the poles, Exh. P.

4. Khar Malik had cut the string. On the way we saw some military lorries and fearing discovery we threw the body in the fields and returned home. I found Khar Malik there, who burnt the deceased's coat, his chaddar and his pugri as well as the string of the cot, and the next morning he took the ashes and threw them in a running stream. The deceased's chapli was left behind and Khar Malik took it and threw it in a sugarcane field. Khar Malik has not yet paid me the sum of Rs. 500 he promised. One lead bullet which I found embedded in the wall, I took out and threw in a field near my house. The description of the manner of Saddar Jan's killing is borne on by the injuries found on his person. There were two bullet wounds on the left abdomen with two exit wounds in the back A as well as three incised wounds on the head under one of which the bone was found fractured. The doctor gave the opinion that one of the incised wounds was post‑mortem, but as he found two were definitely ante‑mortem, the point is of no great importance. Intensive internal bleeding might well have caused immediate stoppage of the flow of blood in the head. In evidence, a brother of Saddar Jan named Badal, P. W. 5, deposed to the previous enmity and stated further that Saddar Jan had taken some 20 maunds of chalghoza to Bannu for sale, and as the price was Rs. 65 per maund, the inference would be that he had some Rs. 1,300 in his possession, which would serve as a second motive to kill him. Badal also identified the chopli. Nasim and Gul Azam, out of the three brothers who were said to have assisted in the disposal of the corpse, gave evidence as P. W. 10 and P. W. 11 respectively. The only person who could be a direct witness of the occurrence was Mst. Sahib Zara wife of Qibla Alam and the prosecution undertook the risk of producing her. She was examined as P. W.

7. She said that her house consisted of single kotha with a partition wall dividing it into two parts and she slept on one side of the wall while Saddar Jan and her husband and Gulzar slept on the other side. She was awakened from sleep by hearing a shot and went to the other side of the wall in her presence Gulzar fired another shot. She said her husband protested against the killing of his guest, but Gulzar insisted that he would kill Saddar Jan and aiming his gun at Qibla Alam ordered him to strike the deceased with a hatchet, otherwise he too would be shot. Thereupon Qibla Alam picked up the hatchet and gave blows with it to Saddar Jan. The dead body was left in the house that night and for the whole of the next day. The following night Qibla Alam brought the three brothers and the body was taken away. That night Gulzar disposed of the clothes etc., of the deceased. This woman had made several statements earlier, that is to the Police, to a Magistrate under section 164, Cr. P. C. and in the committing Court. In two of the earlier statements she said she had told her husband that he had done a wrong act, whereupon he threatened her, and turned her out of the house. That would negative her later statement that Qibla Alam only acted under compulsion. In one earlier statement she had said she went to sleep again after being awakened by the shots. She had also omitted to say that she had seen Gulzar firing at the deceased. In one of those statements, she had said that after serving meals to her husband and his guests, she was going into the house of her husband's brother, when she saw Gulzar firing the two shots. The other statements show that the shots were fired much later in the night, so that it may well be that she was not in the kotha at all, but in her husband's brother's house when the shooting took place. It is noteworthy that these discrepancies were brought out in cross‑examination for Gulzar accused. Accordingly, it became difficult to accept the statement made by this witness that her husband used the hatchet on Saddar Khan under duress, that is, a threat of death. At the trial, Qibla Alam said that he had made his confession before Syed Muti Ullah Shah as a result of persuasion by the a Police. Yet, both in that Court as well as in the committing Court, he admitted practically everything he had said in the confession. The difference he tried to bring about was the same as the exculpatory element introduced by Mst. Sahib Zara, namely, duress. He said he was awakened by the rifle shots of Gulzar and he protested at his guest being killed. Gulzar then threatened to kill him too, and ordered him to strike Saddar Jan with a hatchet. Gulzar promised to pay Qibla Alam Rs. 500 "for not disclosing the incident", but he had not paid a penny. He admitted that he had taken the help of Nasim, Hajim and Gul Azam for getting rid of the body. He also admitted the previous enmity on account of the murder of his brother‑in‑law by Saddar Jan's brother, Zanjir Gul. The argument is raised that on this evidence, the benefit of duress must be given to the appellant. It has been seen that Mst. Sahib Zara's statement is variant and weak on this very point. The likelihood is that she was not even in the house that night. On the other hand, there is no doubt whatsoever that the murder was committed in Qibla Alum's house at night, when he himself was present there, and he is a man with a grudge against Saddar Jan's brother, which in the normal way he would not hesitate to feed with the life of Sadder Jan. Accordingly, the burden lay very heavily on Qibla Alam to show how he could escape responsibility for the killing of Saddar Jan. In his confession, he clearly admitted that he joined to the killing voluntarily and for a price. He put it as if the initiative for the killing came from Gulzar, although no enmity of any kind is urged between Gulzar and the deceased. In fact, the motive and therefore the initiative lay with Qibla Alam alone, and the murder having been committed in his house an in his presence so that he was under a duty of explaining ho it happened, all his statements must be read together for the determination of the truth. It is significant that the relieving element of duress was raised at a much later stage than the making of the confession. That is by itself sufficient in our opinion for discarding the allegation of duress and for accepting the confession as made to the Magistrate. The allegation that that confession was made under influence is totally excluded by the fact that practically everything contained in that confession was repeated in his statements at the enquiry, and later at the trial. It is significant that before the Committing Court he did not plead any pressure or use of force by the Police, but merely persuasion, as the reason for his having made the confession. It does not stand to reason that the Police would have obliged him or induced him to exclude mention of Gulzar's insistence that Qibla Alam should also strike Saddar Jan, when the accused was willing to furnish all other details. In any case, it does not stand to reason that Gulzar a man with no grudge against the deceased should take the leading part in killing the deceased, without first having agreed at all with Qibla Alam, for the latter had the real reason for wishing the death of Saddar Jan. The conviction under section 302, P. P. C. appears to us to be plainly correct. Qibla Alam took an equal part with the gunman in the commission of the crime, and consequently the death sentence is fully deserved and we accordingly dismiss this appeal. A. H. Appeal dismissed.