P L D 1967 Karachi 233 (PLP)

(g) Criminal Procedure Code (V of 1898)

S. 164‑Confes sion ‑ Voluntariness‑ of‑Accused alleging that confession was extorted irons him by torture‑No marks of torture noticed by Magistrate recording confession nor any evidence examined to substantiate allegation‑Confession in circumstances of case, held, to be voluntary. (h) Penal Code (XLV of 1860)

S. 395 read with S. 397 Dacoity‑Retracted confession corroborated by details given therein and by production of stolen property by accused‑Such confession, in circumstances of case, sufficient evidence to hold accused guilty of dacoity‑‑Criminal Procedure Code (V of 1898), S. 164‑Evidence Act (I of 1872), S. 30. Sh. Rehman Bux for Appellant No. 1. A. R. Kazi for the State. Date of hearings 26th April 1965. Kassim, Muhabat, Khair Muhammad, Mitho and Walidino were convicted under section 395 read with section 397, P. P. C. and 19‑E of the Arms Act by the Extra Joint Sub‑Judge and First Class Magistrate, Hyderabad, by his judgment dated the 21st of March, 1963. Kassim, Muhabat and Khair Muhammad were sentenced to rigorous imprisonment for three years only whereas Walidino and Mitho were sentenced to suffer rigorous imprison ment for four years and one year respectively. Kassim, Khair Mohammad and Walidino had filed appeals whereas Mitho and Muhabat did not file appeals. Walidino is said to have been challaned in a murder case in which he was convicted and sentenced to death. The sentence of death has been executed on him and as such his a0peal has abated. So far as the other appellants, Mitho and Muhabat are concerned, the learned 1st Extra Joint Sub‑Judge and F. C. M., Hyderabad had committed an error in law in imposing that sentence of imprisonment on them under section 395/397, P. P. C. which was not warranted by law. He had also passed no separate sentence on them under section 19‑E of the Arms Act. He had however realized his mistake after he had passed the judgment and had therefore written to the Sessions Judge for a reference to be made to the High Court. It was on the basis of the letter written by him that the Additional Sessions Judge made a reference to this Court under section 438, Cr. P. C. Notices were consequently directed to be issued against the respondents to show cause why sentence passed on them should not be enhanced. Kassim, Muhabat and Khair Muhammad being in jail were served and they are before me in Court. Mitho who had served out the sentence of rigorous imprisonment for one year had been released with the result that the service on him ha: so far not been effected. I will hear the appeals filed by Kassim, and Khair Muhammad only. I will also deal with the notices of enhancement issued against them and Muhabat. Both the appeals fined by them and the notices of enhancement given to them will be disposed of under this Judgment. 2. The facts of the prosecution case briefly are that on the 26th of March 1959, Haji Siddiq was sitting on the shop of Haji in front of his house at 5.00 p. m. when he saw seven persons armed with rifles, guns and hatchet coming towards his house. He prevented them on account of which one of the culprits fired a shot in the air and prevented him from going near them. He is consequently said to have sat away on the shop of Haji. Out of the seven culprits six went inside his house and the seventh remained at the outer door with rifle in his hand. The culprits were in the house of Haji Siddiq for about 45 minutes after which they came out with the property loaded on the back of a mare. They took away the property after putting Haji Siddiq, Mehar and Usman in the shop of Haji and chaining its door from out side. After the culprits left, Haji Siddiq went to the Police Station at Tando Ghulam Haider which was at a distance of four miles and lodged his first information report Exh. 6 at 7.00 p. m. 3. The police during the course of investigation arrested Kassim and Muhabat on the 8th of April 1960 and Khair Muhammad on the 9th of April 1960. All the three of them at the respective times of their arrests produced property from boxes in their houses which was secured under mashirnamas by Police Inspector Ghulam Murtaza. The witnesses were also put to identification test in which the appellants were picked out. Khair Muhammad was also produced before Mr. Shamsuddin Siddiqi, F. C. 14., Hyderabad on the lath of April 1960, where he made the judicial confession Exh. 22. After the usual investigation was completed, the appellants along with others were challaned. 4. The appellants and Muhabat, when questioned, denied the allegations made against them and alleged that the case against them was false and the property said to have been recovered from them was foisted on them. None of them has examined any witness in defence: 5. The question whether dacoity from the house of Haji Siddiq was committed on the 26th of March 1959, is not disputed. The evidence of Haji Siddiq, Mehar and others coupled with the mashirnama of vardat leaves no room for doubt that dacoity at the house of Haji Siddiq was committed. The only question that needs to be decided in this appeal is whether the appellants and Muhabat were some of‑the dacoits who had committed dacoity from the house of Haji Siddiq. So far as the case of Kassim and Mubabat is concerned, the evidence against them brought by the prosecution is of the same type. Both of them were arrested on the 8tb of April ‑ 1960 and it is alleged that at the time of their arrest from their houses both of them took out property from the boxes in their houses and produced it before the police. The property produced by them was secured by Ghulam Murtaza P. W. 11 in the presence of mashies for which he prepared mashirnamas. The mashirnama in respect of the property produced by Kassim is Exh. 30 whereas the mashirnama in respect of the property produced by Muhabat is Exh. 31. The mashirs in whose presence the property was produced have not been examined; Haji Siddiq, Mehar and Usman were put to identifica tion test on the 14th of April 1960; which was held in the presence of the Head Munshi and Third Class Magistrate, Hussain Bux P. W. 2, for which mashirnama Exh. 4 was made. The learned counsel for appellant Kassim has attacked the identification test on the ground that it was held nearly thirteen months after the incident. It is nobody's case that‑Haji Siddiq, Mehar and Usman had any kind of enmity with Kassim or Muhabat. It is also nobody's case that they were known to them before the incident. All these three witnesses, Haji Siddiq, Mehar and Usman, have in their evidence stated that in the identification test held on the 14th of April; 1960, they were shown about eight to nine persons from whom they bad picked out the appellant Kassim and Muhabat. Head Munshi Hussain Bux in whose presence the identification test was held has also supported the case of the prosecution. Mashirnama Exh. 4 also lends support to the case of the prosecution. It is an admitted position that the identifica tion test was held thirteen months after the incident and seven days after the arrest of the appellant Kassim and Muhabat. It is very likely that Haji Siddiq, Mehar and Usman may have had a chance of having a glimpses of them before they were put to test. The property is said to have been produced by them on the 8th of April 1960, and as such Haji Siddiq and others must have come to know through the police that the property said to have been taken away in the dacoity from their house was secured by the police. They must have also come in connection with the identification of the property. At any rate, the delay between the 8th of April 1960, the date on which Kassim and Muhabat were arrested, and the 14th of April 1960, the date on which the identification test was held, has not in the least been explained by the police officer who arranged the identification test. Apart from the fact that the delay in the identification test has not been explained, the delay of thirteen months. between the date on which dacoity was committed and the date on which the identification test was held would create a doubt in anybody's mind that the identification by the witnesses may be a mistaken one. Under these circumstances, I am not inclined to place reliance upon the evidence of identification.. 6. The only other evidence with which the prosecution is left with against Kassim and Muhabat is the evidence of produc tion of property by them. The property produced by them consists of ornaments. The property had been produced by them from the boxes kept in their respective houses. The fact of recovery of property is reflected in the mashirnamas Exhs. 30 and 31 prepared by Ghulam Murtaza, Inspector of Police. Although the learned Magistrate who dealt with this case has failed in his duty in not calling the mashirs in whose presence the property was secured and examining them, there is still evidence of Ghulam Murtaza. Then fact that Ghulam Murtaza is a police inspector will not come in the way of his evidence being believed. A police officer is as good a witness as any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judged. Nothing has been asked in cross -examination from Ghulam Murtaza by counsel for both Kassim and Muhabat in regard to the evidence of production of property. It is a settled position in law that if, some fact is deposed to in examination‑in‑chief which is not questioned in cross‑examination the presumption is that that part of the evidence is deemed to have been accepted by the party against whom that evidence has been given. Acting on this principle I accept the evidence of Ghulam Murtaza, his evidence in respect of the production of property having not been questioned. Apart from that, the property has not been claimed by Kassim or Muhabat. The property had been picked out in the identification by the witnesses examined in the case. It is inconceivable in the extreme to believe that for no reason Ghulam Murtaza, Police inspector, would choose these persons to be sent up in a dacoity case 'and for that purpose ask Haji Siddiq and others to produce property from their houses so that the same may be foisted on them. It is also not possible to believe that the Inspector of Police would secure that property from other thieves and foist it on these persons without any rhyme or reason. Mr. A. R. Kazi, the learned counsel for the State, has been of the view that in the event of non‑examination of the mashirs on the question of the production of the property the evidence of the Police Inspector should not be considered as sufficient for the purpose of convic ting either Kassim or Muhabat. I do not agree with 'the view propounded by him. I asked him As to on what ground would he want me to reject the evidence of‑ the Police Inspector. All that he said in reply was that his evidence should not be relied upon merely on the ground that he happens to be an inspector of Police. As I have already stated that the mere fact‑that a particular person happens to be a police officer will not be sufficient for discarding his evidence. It will be better if other evidence available to the prosecution is also brought on record with a view to strengthen the evidence given by the police officer. 1n this case the learned Sub Judge who tried the case seems to have dealt with the case in a haphazard manner, The very fact that he had convicted Kassim and Muhabat tinder Section 345/397, P. P. C., and sentenced them to rigorous imprisonment for three' years speaks volumes about it. It is a very rudimentary thing to know that if the offence committed is punished under section 395/397, P. P. C., then the minimum sentence which a Court can impose is the sentence of rigorous imprisonment for seven years. It is only for the purpose of circumscribing the powers of the court in regard to the minimum sentence that can be awarded that section 397, P. P. C. has been enacted. The learned Magistrate, apart from not knowing what is contained in section 397, P. P. C., which reflects very adversely on his legal knowledge, did not choose to take up the book for the purpose of refreshing his memory or trying to know what he did not know. The manner in which h has dealt with this case shows that the Magistrate concerned himself more with the disposal of the case than doing justice in it. With this type of Magistrate, it is quite understandable why the mashies in whose presence the property was produced were riot examined. Under these circumstances, I consider the evidence of the Pole Inspector, Ghulam Murtaza, sufficient especially when it is corroborated by mashirnamas Exhs. 30 and 31 for holding that the property was produced by Kassim and Muhabat as alleged by Ghulam Murtaza. The appellant Kassim and Muhabat have merely stated that this property was not produced by them. They have also stated that it was foisted on them. When they have taken up such a plea, the burden is on them to substantiate it. It is not necessary to lead concrete evidence for the purpose of proving it. It is enough if some material is brought on record direct or indirect to give rise to an inference that the property was foisted on, them. No such evidence has been led. Not even a question has been put to Ghulam Murtaza or to any of the witnesses in regard to the foisting of the property. In view of this, as I have already stated, I am of the opinion that the property was produced by the appellant Kassim and Muhabat and that this property belonged to Haji Siddiq. 7. The next question that will arise for consideration will be as to what is the effect of the production of this property in so far as the complicity of the appellant Kassim and Muhabat in connection with this crime is concerned. It is admitted that the property had been recovered thirteen months after the incident. Under these circumstances, it is not possible to draw an inference especially in view of the fact that I have not placed reliance upon the identification test that Kassim and Muhabat were dacoits. The inference, however can be raised in the circumstances of this case, that they knew that the property was stolen. The very fact that they, after having produced the property, denied its production and. disclaimed its ownership is sufficient for coming, to the conclusion that they knew that the property was stolen. I will, however, hold that they had knowledge that the property in their possession wag stolen one and not that it had been acquired in a dacoity. On this view of the matter, I will alter their convictions from one under section 395/397, P. P. C. to one under section 411, P. P. C. They were convicted under the Judgment dated the 21st of March 1963. They have remained in jail for more than two years. I. therefore, consider the sentence undergone by them to be sufficient for an offence under section 411, P. P. C. I, there fore, while dismissing the appeal filed by Kassim alter his convic tion to one under section 4.11, P. P. C. and reduce his sentence to the sentence already undergone. I do not propose to pass a separate sentence upon them for an offence under section 19‑E of the Arms Act. The appellant Kassim and Muhabat are in jail and shall be released forthwith if not required in any other case. 8. So far as the case of appellant Khair Muhammad‑is concerned, he was arrested on the 9th of April 1960. He also produced property on the same day in the presence of mashir Khuda Bux P. W. 12. The property was secured by Ghulam Murtaza P. W. 11 for which he prepared mashirnama Exh. 32. The witnesses Were also put to identification test which was held on the 19th of April 1960, in which the witnesses picked him out. He also gave his judicial confession which was recorded by Mr. Shamsuddin Siddiqi, Sub‑Judge and F. C. M., Hyderabad, on the 11th of April 1960. So far as the evidence of production of property is concerned, the case of Khair Muhammad is absolutely on par with the case of the other two appellants in that the property was produced by him from a box kept in his house. He has also neither claimed the property nor admitted the production of it. The property produced by him has also been identified by Haji Siddiq and owned by him. The difference between the case of the other appellants and Khair Muhammad in so far as the production of property is concerned is that in the case of Khair Muhammad mashie Khuda Bux in whose presence the property was secured has been examined. Khuda Bux and Ghulam Murtaza have both supported the case of the prosecution. They have no grouse against this appellant and their evidence appears to be straightforward and above board. The identifica tion test in his case was held on the 19th of April 1960 in the presence of the Third Class Magistrate Muhammad Siddiq P. W. 1 for which mashirnama Exh. 2‑A was made. Since the identifica tion test was held more than 13 months after the incident and since I have not placed reliance upon the identification test in respect of Kassim and Muhabat I do not wish to distinguish his case from others and for that purpose do not wish to place reliance upon the evidence of identification. The third piece of evidence against him is his judicial confession which he made on the 11th of April 1960, which was recorded by Mr. Shamsuddin, Sub‑Judge and F. C. M. Mr. Shamsuddin Siddiqi has been examined as P. W. 6. He has stated in clear terms as to what precautions he took in satisfying himself that the confession by the appellant Khair Muhammad was voluntary. The only thing stated by appellant Khair Muhammad is that the confession was extorted from‑ him on account of beating given to him by the police inspector. The question put to the police inspector in his cross‑examination was that the appellant was arrested about fifteen days before the date on which he was produced before the Magistrate for confession and that during this period of 15 days he was being tortured for giving confession. No marks of torture had been noticed by the Magistrate. No evidence has been examined to substantiate the allegation of torture. From the evidence available on the record, I have no doubt in my mind that the confession given by him was voluntary. The graphic description given by Khair Muhammad in the confession as to how he came to the house of Mitho and how he along with others embarked on the duty of committing dacoity from the house of Haji Siddiq shows clearly that the confession is trite. It stands corroborated not only by the details given in the confession but also by the production of the property made by the appellant on the 9th of April 1960. The confession though retracted gets support from the production of the property made by him. Under these circumstances, I consider the retracted confession corroborat ed by the production of the property to be sufficient evidence against the appellant Khair Muhammad for holding that he was one of the dacoits who committed dacoity from the house of Haji Siddiq. I, therefore, find no merit in his appeal and dismiss it. His conviction under section 395/397, P. P. C. is maintained. I also accept the reference regarding enhancement of sentence against him and enhance his sentence of rigorous imprisonment for three years to rigorous imprisonment for seven years. Notice of enhancement issued against Kassim and Muhabat stands dis charged. Reference for enhancement of sentence against Mitho may be put up after he is served. S. Q. Order accordingly.