P L D 1964 Supreme Court 813 (PLP)

HAMOODUR RAHMAN, J. These two appeals, by special leave, have been filed by the State against the judgment and order of the Division Bench of the High Court of West Pakistan at Karachi acquitting the respondent, who is the same in both the appeals. The said respondent was charged with having abducted, administered poison, robbed and caused the murder of two persons on different dates for which he was tried separately by the Additional Sessions Judge of Larkana with the aid of three assessors. All the three assessors were unanimously of the opinion that the respondent was not guilty of any offence, but the learned Additional Sessions Judge disagreeing with their opinion convicted the respondent on all the above-mentioned counts in each case and sentenced him to death on the charges under section 302 and to various terms of imprisonment on the other charges. The res pondent preferred appeals from Jail in both the cases and they also came before the High Court for confirmation of his sentences of death. The High Court heard both the cases together and by a consolidated judgment acquitted the respondent in both the cases. The circumstances, in which the respondent came to be prosecuted for these offences, may be briefly stated as follows: On the 27th of December 1960, at about 7 a. m. a naked dead body was found by a Railway Keyman, named Khamiso, lying on the railway track at mile 177/20 of the Kotri-Sukkur track, cut into pieces. He informed the Assistant Station Master of Larkana who, in his turn, informed the Railway Police. The Head Constable of the Railway Police, who first arrived at the place, found the dead body lying on the track cut into pieces, some of which were tied to the Railway line with pieces of cloth. He held an inquest on the dead body as also seized a pair of shoes lying at a distance of 30 paces from the dead body. The shoes fitted the feet of the deceased. After this he informed the Station House Officer, Railway Police, Larkana. The latter took up the investigation on the same day and in the course of his investi gation after tracking some foot-prints found a gun licence in the name of one Abubakar lying in the fields nearby. As a murder was suspected, a case was registered and the investigation handed over to the town Police along with the seized articles, and the dead body was sent to the Civil Hospital, Larkana, for postmortem examination. The dead body was later identified from photo-graphs taken of it to be that of one Abubakar Chandio resident of Rais Jamalkhan Chandio, Taluka Kamber. Thereafter, on the 10th of March 1961, another Gate-keeper of the Larkana Railway Station, named Gulab while on patrol duty, came across another dead body of an unknown person lying on the Railway track at almost the same place, namely, near mile 177/20 of the Kotri-Sukkur track. The Gate-keeper informed the Station Master of the Larkana Railway Station who, in his turn, informed the Railway Police. In this case also the dead body was found tied to the track with a turban and it had been cut into pieces. As a murder was suspected, information was again sent to the Taluka Police at Larkana, who took up investigation, but nothing was found apart from some pieces of a torn loin cloth in a wheat field nearby which were seized. A photograph of the dead body was taken. This photograph was published in the weekly `Pakistan' of Larkana in its issue of the 18th of June 1961, but no one came forward to identify the dead body. Again, on the 12th of March 1961, one Wahid Bux was found lying unconscious on the Railway track near about the same place where the two dead bodies had been found earlier. He was removed to Hospital where he regained consciousness and later lodged a report disclosing the circumstances in which he came to be on the Railway track. According to his story on the day previous to his being found lying on the Railway track he was playing cards with some others in the afternoon at Jinnah Bagh, Larkana, when the respondent came there and joined them. After the game was over and every one had left the respondent followed him when he proceeded towards the town and told him that there were two women ready for going with the respondent and if Wahid Bux joined him he could have one of them. Wahid Bux refused, as it was the month of Ramzan and he was fasting. Wahid Bux then proceeded towards a mosque which is on the north of Larkana at a place called Ghar. The respondent then bought some bread and cooked intestines from Seo Bazar and accompanied Wahid Bux to the mosque where the latter offered his prayers. When he came out of the mosque he found the respondent waiting outside at the door. The latter then took him to the wheat field about 400 paces away. There they took their meals from the bread and cooked intestines purchased by the respondent. After taking the meals Wahid Bux became un conscious. He regained consciousness in the hospital at about sunrise time of the day following his recovery. He found that whilst he was unconscious he had been robbed of Rs. 10 and the gold ear-rings which he was wearing on his ears. Wahid Bux evidently could not disclose the name of the culprit but he subsequently identified the respondent as the culprit at a test identification parade. Thereafter, on the 19th of May 1961, one Wadero Bakhshal Khan, a Zamindar of Kambar, and one Muhammad Hassan pro duced the respondent before the Sub-Inspector of Police who was then in charge of the investigation of this case at Larkana Police Station. The Wadero was examined as a witness in this case and stated that he knew the respondent for the last 10 or 12 years and it was the respondent who on the morning of the 19th of May 1961, came to his Otak where he was sitting with Muhammad Hassan and told him that the Larkana Police were after him. When asked as to why the Police were after him, the respondent confessed to them of having administered dhatoora poison to Abubakar, an unknown person and Wahid Bux after inducing them to come with him to a wheat field near the Railway track from Jinnah Bagh, Larkana, where he met his victims while playing cards. The dhatoora poison was mixed by him in the cooked intestines which he had purchased earlier in each case. After the victims had become unconscious he carried them to the Railway track and left them there to be run over by the night train. According to the statement said to have been made by the respondent before Bakhshal, Abubakar was also lured to the wheat field upon the story that there were two women who had promised to go away with the respondent and that the deceased could have one along with her articles. Abubakar, the deceased, then told him that he would accompany the respondent after getting his licence renewed. They then went together to the shop of one Qalandar Bux typist and that in the evening the respondent after purchasing some bread and cooked intestines from the bazar proceeded with the victim to the cultivated area near the Railway line where, he said the women would meet them. The respondent then went aside on the pretext of answering a call of nature and mixed the dhatoora poison with the cooked intestines which were later offered to the deceased Abubakar. When Abubakar became unconscious he was relieved of Rs. 250 which were found in his pocket, and carried to the Railway track where he was tied with his turban. He was run over by the night train which passed that way at about 11 p.m. Two or three months later the respondent again went to Larkana and secured his second victim in the same manner and at the same place on, more or less, the same pretexts. This victim was also lured to the same place in the cultivated area by the Railway track and again administered dhatoora poison mixed with the cooked intestines. He too was relieved of his belongings when he became unconscious and tied to the Railway track, Some months later the third victim Wahid Bux was also secured in more or less similar circumstances and left on the Railway track, but fortunately he was saved before he could be run over by any train. The Police Officer at Larkana recorded the statement of Bakhshal Khan, arrested the respondent and produced him before a First Class Magistrate at Kambar on the 20th of May 1961, for recording his judicial confession. This was recorded after making the usual precautions by Mr. Ali Raza Shah, a Resident First Class Magistrate at Kambar, on the 20th of May, 1961, at about 2-15 p.m. He recorded three separate statements at the same sitting. Since these confessions form practically the sole basis of the conviction of the respondent, it would be appropriate to quote the relevant portions of them here in extenso:--‑ "About six months back I had gone to Larkana. I went in Tajar Bagh at noon time where many persons were playing. I also joined some unknown persons playing cards. In the evening those persons went away except Bakhir Chandio who was one of the members who were playing cards and was unknown to me in the first instance. When we were alone we got each other known. I enquired from him how he had come there. He said that he had to get his gun licence renewed and for that purpose had come there. 1 told him that I have a piece of work, if you help me and Bakhir said that he had work with a Munshi and if that Munshi resisted for a day or two then I will accompany you. He asked me what the work was. I told him that there are two Bannia (Hindu) ladies who are willing to go with us. You accompany me to take them away and then one girl and half of the property for me and one girl and half of the property for you. He consented to go with me first to Munshi and if that Munshi said something then we will keep the second programme. Then we both got up and came and Bakhir alone went to Munshi Kalandar Bux and I stood outside the shop. Bakhir returned and told me that 2-3 days are still wanted in this work to complete till then let us go with my work. I purchased Breads and Intestines from the Town and also purchased Baddis and then went outside the town by taking Railway Line came to wheat cultivated field opposite the houses of Brohis and sat there, Bakhir said that he was hungry as I had not taken noon meals. On his saying so I took out the Bread and Intestines and mixed dhatoora in the intestines and gave Bakhir to eat, Bakhir took meals fastly while I slowly. The powdered dhatoora was with me which I had brought from my village. After taking meals we smoked and Bakhir was intoxicated. I removed rupees two hundred fifty from his pocket and dragged him from that place and brought on the Railway Line and bound him with the Lines. After tying him there I went and sat a little away from the Bund. In the night Train Quetta Mail going from Larkana to Sukkur passed from there where Bakhir was bound down and after crossing him stopped a little further. Passengers got down from the train and by the aid of lanterns they searched here and there and I was hearing `Man has been murdered by the train'. Then I got up from there and sat a little away from there. I slept there for the night and early in the morning at the prayer time came to Larkana. 1 stayed for the day at Larkana and so for the night also and on the next day came to Kamber by noon train and from Kamber went to Khairpur Nathan Shah to see the fair. From there I returned to my own village. I stayed for two months in the village then for the next occurrence I went to Larkana for which I am giving my statement separately." "Two months after the murder of Bakhir I again went to Larkana and took powdered dhatoora in a little packet with myself. Similarly as before at noon time I played cards with a party in Tajar Bagh. Every one went away in the evening one man alone was sitting by my side he was also a newman and unknown to any body. Then we got known to each other. He said that he was resident of Riyasat in Dadu District. He gave me his name and caste but now I have forgotten both. He told me that there was some dispute over the land and that he had come to engage a pleader. I told him that there were two bannia (Hindu) girls who are ready to be enticed away and if I were to help him then one girl and half of the property for me and one girl and half of the property for him. He then told me that if he got a reasonable pleader then it was well otherwise he would accompany me. Then we left the garden and came to pleader and I stood outside while he went in to pleader. I don't know the name of the pleader but he was called `Ghori' `Ghori'. After a little while he along with a Munshi of pleader came out talking together. He told me that he had given money to pleader, Munshi who would go to and that he would accompany me. I purchased breads and intes tines similarly as before we walked by the same railway lines and came and sat in the same wheat cultivation as before. I gave him breads to eat and mixed dhatoora within intestines. He took meals and I took only by the way of show. After meals we smoked. After a little time he was intoxicated. Then I removed money from his pocket and then dragged him on towards Railway lines and tied him with his Angosha with the railway line. 1 sat a little away near the line. Quetta Mail which come from Sukkur at Asar time in the night came and stopped a little further after crossing the place where deceased was tied up. Passengers came down and were searching with the help of lanterns. As I was a little away I could not hear the noise of the men. I passed night there and early in the morning came to Larkana. I had removed rupees twenty from the pocket of the deceased. I stayed at Larkana for that day and on the next day I again went to Tajar Bagh to play the cards. For that incident I am giving a separate statement." After making these judicial confessions the respondent took the Police to the shop of Kalandar Bux whose statement was also recorded. Then a test identification parade was held on the 22nd of May, 1961, in Kambar Jail, where both Wahid Bux and Kalandar Bux correctly identified the respondent. The respondent was sent up for trial in each case and in all the three cases Wahid Bux gave evidence for the prosecution. In the case for the attempted murder of Wahid Bux the respondent was charged and tried under section 307 of the Penal Code and convicted. This case is not before us, but in the Jail Appeals in the High Court from the other two cases resulting in the convictions of the respondent under section 302 of the Penal Code for the murders of Abubakar and another unknown person the evidence of Wahid Bux was sought to be put in under sections 14 and 15 of the Evidence Act to establish that the three crimes were committed in accordance with a scheme as also to show the similarity of his conduct and acts culminating in the commission of the three offences, but both the Sessions Judge and the High Court ruled this evidence as inadmissible in the two cases that are now before us. The prosecution case rested in both the cases mainly upon the extrajudicial confession said to have been made before Bakhshal Khan and the judicial confession recorded by the Magistrate at Kambar. Since the respondent retracted from both these confessions at the trial, the High Court held that these retracted confessions could not corroborate each other, and in any event even the judicial confession could not be safely made the sole basis of the conviction in the absence of any other independent corroboration. The High Court also, upon a careful examination of the confessions proved in the case, found that they were discrepant in innumerable material particulars. The version given in the two were not the same nor were the circumstances in which the confessions came to be made such that it would be prudent to accept those confessions as voluntary or true or to uphold the convictions upon their sole basis. The main facts relied upon by the High Court for not accepting these confessions as either true or voluntary were that the gun licence of Abubakar seized from the place had actually been renewed on the 26th, i.e., the day before his body was found on the Railway track and, therefore, there could be no point in Abubakar telling the petition writer Kalandar Bux (as stated by the latter) that he would bring the papers necessary for drafting an appeal after renewing his gun licence. This rendered the story of going to the petition writer first untrue and contradicted the confessions. Next the body of Abubakar was not found tied to the track with a turban, as stated in the confession, it was actually found with its feet tied with a piece of cloth but otherwise completely naked. The respondent nowhere stated in his con fessions that he had removed the clothes of the deceased before placing him on the Railway line. Again in the judicial confession the respondent stated that he dragged the dead body from the field to the Railway track but no dragging marks were found either on the ground or on the dead body. There was also no evidence to show that any of the deceased persons had been administered dhatoora poison, for, the doctor carrying out the postmortem examination did not examine or preserve the viscera of the dead bodies. The High Court was also disinclined to treat the evidence of Bakhshal Khan as reliable, particularly, since there was no evidence to show that the Police had any trace as to who the culprit responsible for the two murders might be or that they were on the track of the respondent at any point of time before he was actually produced at the Larkana Police Station on the 19th of May, 1961. For these reasons the statement of Bakhshal Khan that the respondent came to them saying that the Police were already after him does not appear to be true. These very cir cumstances were also relied upon by the learned counsel for the State to show that even if corroboration was necessary for the confessions, such corroboration was to be found from the above facts and the fact that the shoes and the gun licence of Abubakar had actually been found at the place of the incident by the Police. There could be no doubt that the shoes belonged to the deceased as his nephew Muhammad All had identified them and they fitted his feet. The only evidence adduced to show that any of the deceased persons was in Larkana at or about the time mentioned in the judicial confessions was that of Qalandar Bux, the petition writer. Unfortunately, his version was belied in two very material particulars. The first was with regard to the time when the respondent and the deceased came to him. Qalandar Bux stated that it was at about 10 or 11 a.m. but according to both the extra-judicial confession and the judicial confession the time was after the card game was over and towards the evening. According to the judicial confession the deceased was hungry, as he had missed his noon meals; when they came to the wheat field and according to the extra-judicial confession it was towards the evening that the respondent purchased the bread and the cooked intestines. The second particular on which Qalandar Bux has been belied is that the deceased came to him before getting his gun licence renewed, for, according to this witness the deceased offered to bring the paper necessary for drafting of an appeal after getting the licence renewed. The gun licence recovered from the spot shows that it was actually renewed on the 26th of December, 1960, i.e., before the deceased went to the shop of Qalandar Bux. Apart from this, Qalandar Bux could produce no record to show that the deceased had at all visited him in the month of December, 1960. It cannot, therefore, be said that the evidence of Qalandar Bux was discarded by the High Court on insubstantial grounds. So far as the evidence of Wahid Bux is concerned, we are in full agreement with the High Court that the same was inad missible in these cases for the obvious reason that Wahid Bux himself knew nothing about the murders of these two persons. All that he could speak of was the circumstance in which he himself was lured to the wheat field and given dhatoora poison. In the absence of any evidence of any conspiracy or any design to follow a particular mode of operation it cannot be said that the evidence of other acts performed in more or less similar cir cumstances becomes relevant to establish a code or pattern of conduct. It has to be remembered that the principle upon which evidence of similar acts may be admitted under section 15 of the Evidence Act is that it is to be admitted merely to prove a person's state of mind but not to prove either the occurrence of B the main fact itself or the identity of its author as was attempted to be done in the present case. Thus where the mental state of a person is not relevant, section 15 has no application. Again, this section cannot be invoked in aid until it has been shown that the person charged had committed all the occurrences. Only when this has been established, does his state of mind become relevant to show that those acts were not committed accidentally or inadvertently but by design in accordance with a preconceived pattern or design. Thus if `A' shoots at `B', then evidence may be admitted to show that previously or subsequently also `A' shot at `B' and that the shooting was done with the intention to kill and not accidentally or inadvertently but evidence that `A' shot and killed other persons would not be admissible under this section unless that killing was done in pursuance of a common scheme or purpose. The object of this section, as stated by Wigmore (S. 304) "is to establish a definite prior design or system which included the doing of the act charged as a part of its consummation". As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confessions, whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now well settled that as against the maker himself his confession, judicial or extra-judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law. As observed even by Munir, C. J. in his commentary on the law of Evidence at page 168 (Vol. I) "it is a settled rule of evidence that unless a retraced confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true". The proposition that a retracted extra-judicial confession cannot corroborate a retracted judicial confession cannot also be assailed where corroboration is found necessary, for, that would amount to utilising of one piece of tainted evidence to corroborate another piece of tainted evidence. The High Court was, in the present case, in our view, acting upon sound principles, therefore, in going into the question of the weight and value to be attached to the confessions proved in this case after accepting that they were relevant and admissible as evidence. In order to ascertain as to how far the confessions were true, voluntary and credible the High Court has, in our view, rightly emphasised that there were, in the present case, certain very salient and material circumstances which rendered the evidentiary value of the confessions doubtful. We have already adverted to these circumstances and we need not repeat them again. It needs only to be mentioned that we are unable to accept the contention that the High Court had upon insubstantial grounds rejected these confessions. The reasons given by the High Court are, we are satisfied, based upon a careful and exhaustive examina tion of the evidence and are, in our opinion, cogent and weighty. We are unable, therefore, to say that the acquittal of the respondent in these two cases by the High Court was improper. These appeals are, accordingly, dismissed. A. H. Appeals dismissed.