P L D 1962 (W (PLP)

INAMULLAH, J.‑The appellant has been convicted under sections 302 and 363, P. P. C., and sentenced to death under the former and to R. I. for five years under the latter by the learned First Additional Sessions Judge. Besides the appeal the matter is also before us for confirmation of the death sentence passed on the appellant. The facts giving rise to the present appeal are these :‑ Mst. Hakimzadi aged about 6 years was living with her parents in a quarter of the Civil Hospital, Hyderabad. Dhanibux, the father of the deceased, was working as a ward boy in the hospital. The appellant Abdul Samad was a Police Constable and was known to Dhanibux since about 1 years before the incident.

2. On the 9th of August 1960, the day of the incident, the wife of Dhanibux went to visit her aunt at Tando Agha which is at a distance of about two miles from Hyderabad. She took away her two small children but left Mst. Hakimzadi in her house with Dhanibux. Hakimzadi was crying for her mother outside her house when the accused came and made enquiries from her. The girl told him that her mother had gone to Tando Agha leaving her behind. The appellant asked her to accompany him and that he would take her to her mother. P. W. Dost Ali, who is a relation of Dhanibux, was staying with him in his quarter as his sister was an indoor patient in the hospital. Dost Ali asked the appellant as to where be was taking the girl. He told him that he was taking her to her mother. While the appellant was taking away Hakimzadi he passed Dhanibux who was working in the hospital. On enquiry from Dhanibux he told him that he was taking the girl to the town for getting her sweetmeats. He took the girl to the shop of P. W. Amiruddin and purchased a small tin box from him. Amiruddin had a shop on the footpath about a furlong from the Civil Hospital. The appellant thereafter took the girl to the hotel of Mistri Khan and got her a cup of tea and a cake. The accused then went alone to the shop of P. W. Ahmed Nabi and purchased oil worth one anna from him. The girl thereafter was not seen by anybody till her bones were recovered from Ganjo Takkar on August 23, 1960 at the instance of the appellant.

3. Dhanibux came to his quarter at about 2 p.m. and found that the girl had not come back. P. W. Dost Ali told him that Abdul Samad bad taken her away to her mother at Tando Agha. Dhanibux was apparently satisfied with this information. On August 11, 1960, at about 10 a.m. the wife of Dhanibux came back from her aunt. She disclosed to Dhanibux and Dost All that the girl was not brought to her by anybody. Dhanibux asked Dost Ali to inform his nephew Rasool Bux who had a tailor's shop and asked him to inform Head Constable Ghulam Mustafa. Ghulam Mustafa was known to Dhanibux since some time.

4. On enquiries Ghulam Mustafa came to know that the appellant had gone away to Karachi. Ghulam Mustafa got the address of the appellant from his cousin Abdul Latif. On August 12, 1960, Ghulam Mustafa went to Karachi at the request of Dhanibux. Ghulam Mustafa contacted the appellant and asked him about the girl. He told him that he had left the girl in the hospital after getting her sweetmeats. Ghulam Mustafa asked him to accompany him to Hyderabad but he refused to do so. Ghulam Mustafa returned to Hyderabad on 13thAugust, 1960 and related the talk he had with the appellant. Dhanibux lodged the report on August 14, 1960 at 4‑30 p.m. S. H. O. Ghulam Yasin arrested the appellant at Golimar, Karachi on August 15, 1960. On August 23, the appellant volunteered to point out the place where the dead body of Hakimzadi was thrown. He led the police Inspector Muhammad Hussain and the mashir to a hill called Ganjo Takkar. This was on the outskirts of Hyderabad town. He pointed out a cluster of Devi bushes. On search the police found a broken human skull, human hair, four small pieces of voile cloth and the skeleton of a child. On the same evening the appellant again took Ghulam Yasin to the same hill and at his instance a round tin box was secured.

5. The appellant after his arrest pointed out the shop of Ahmad Nabi, Amiruddin and the hotel of Misri Khan.

6. The appellant while in Karachi met P. W. Ghulam Abbas, a cycle dealer in Hyderabad. Ghulam Abbas happened to be in Karachi as he was married there. The appellant requested him to give him shelter. Ghulam Abbas refused and told him that he had his own relations where he could stay. The appellant however stated that the Hyderabad police was after him as he had killed a girl after committing rape on her.

7. The appellant denied to have committed the offence and the other facts alleged against him. He denied to have pointed out the place from where the skull, human hair and skeleton of a child were recovered. He denied to have made extra judicial con fession to Ghulam Abbas. He alleged enmity with H. C. Ghulam Mustafa, and stated that he was on illicit terms with his sister who `used to write letters to him. He produced some papers stating `that they were the letters written by his sister Mst. Husna. The prosecution witnesses, he alleged, deposed against him as they were under the influence of Ghulam Mustafa. He had resigned from his job on 24th August 1960, and was living in Karachi ; the suggestion apparently was that he was not 9n Hyderabad at the time when the girl is said to have disappeared.

8. The learned advocate for the appellant raised two‑fold legal contentions namely :‑ (1) That the learned Additional Sessions Judge has not complied with the provision of section 309 of the Cr. P. C. (2) That one of the assessors namely Haji Meharali was absent when the opinion of the assessors was recorded under section 309, Cr. P. C., by the learned Judge and that the learned Judge has failed to hold that his attendance was not practicable to enforce within the meaning of section 285, Cr. P. C. We propose to dispose of these contentions separately.

9. The learned Judge put the following question to all the assessors "What is your opinion, whether the accused is guilty or not." 7 he assessors gave their opinion that the accused was guilty as the witnesses were reliable. Under section 309, Cr. P. C., all that it is necessary is that the assessors may be asked to give their opinion on all the charges on which the accused has been tried it does not require that the charges should be separately put to the assessors. The question put by the learned Additional Sessions Judge is comprehensive enough to include all the charges without any exception. In this connection reliance may be placed on the Full Bench decision of this Court in Tooh v. The State (P L D 1960 Kar. 1). Mr. Azizullah Shaikh, the learned Advocate for the appellant however relied on the decision of the Supreme Court In Muhammad Sajjad and another v. The State (P L D 1961 S C 30) in support of his contention that the trial is vitiated because of the non‑compliance of section 309, Cr. P. C. After perusal of the judgment of their Lordships of the Supreme Court the following principles are deducible:‑ (1) that if no opinions at all were obtained from the assessors the trial would be illegal ; (2) that if the non‑compliance is in respect of only a minor part of the case the contravention would be an irregularity ; and (3) that the conviction would not be vitiated because of the irregularity unless it is shown that the accused has been prejudiced. The principles laid down by their Lordships of the Supreme Court would not apply to the circumstances of the present case. In this case the opinion of the assessors had been asked on all the charges. The question `What is your opinion" has a reference to all the charges and not only some of the charges. In the case before the Supreme Court the opinion of the assessors was asked in respect of two charges only and not in respect of the third charge. There was clearly an omission to ask the opinion of the assessors on one charge. At any rate, as the opinion of the assessors was obtained, though not separately, it would be only an irregularity. The question is whether it has caused any prejudice to the appellant. Mr. Azizullah Shaikh contended that if the assessors were required to give their opinion on each charge separately they would have weighed the evidence led by the prosecution separately and then given their opinion. There is not much force in this contention. The assessors gave their opinion of `guilty' and stated that the witnesses were reliable if they believed the witnesses they believed them in respect of all the charges against the appellant. The learned Advocate did not point out any other prejudice that may have been caused by not taking the opinion of the assessors on each of the charges separately.

10. The contention, that the requirement of section 285 of the Cr. P. C. has not been complied with inasmuch as there is no finding that attendance of Haji Meharali, assessor was not practicable to enforce, has not much force. Sub‑clause (1) of section 285 reads as under :‑ "If in the case of a trial with the aid of assessors, at any time before the finding any assessor is, from any sufficient cause, prevented from attending throughout the trial, or absents himself, and it is not practicable to enforce his attendance, the trial shall proceed with the aid of the other assessor or assessors." The learned Judge has noted against the assessor Haji Meharali as under :‑ "He is ill, writes he has high blood pressure." It is true that the learned Judge has not given any finding that the attendance of Haji Meharali was not practicable to enforce. Section 285, Cr. P. C., does not require that the Judge should write an order giving his reasons that the attendance of the absent assessor was not practicable to enforce. The fact that the learned Judge proceeded with the matter, after being informed by Meharali that he was ill and was suffering from high blood pressure would indicate that he was of the opinion that the attendance of the assessor was not practicable to enforce. At any rate, the omission on the part of the learned Sessions Judge to record that he was of the opinion that the attendance of Mr. Meharali was not practicable to enforce would be a mere irregu larity, and in the absence of any prejudice caused to the appellant by this omission, the trial cannot be held to be bad. It was open to the learned Judge to have stated that as Haji Meharali was suffering from high blood pressure and was ill it was not practic able to enforce his attendance in the near future and that the case being one of murder, he did not think it necessary to postpone the case indefinitely for the attendance of the assessor. No grievance of this was made out before the learned Additional Sessions Judge. This point has been taken only now before us.

11. The learned Advocate, Mr. Azizullah Shaikh, relied upon two decisions in support of his contention that non‑compliance of section 285 of the Cr. P. C., vitiates the trial, namely, Fazal Muhammad and others v. The Crown (P L D 1954 B J 64) and Kasimali Mira v. The Crown (P L D 1952 Dacca 253). It is sufficient to state that the case of Kasimali Mira has been overruled by our Federal Court in the case of Muhammad Yousif Soomar v. The Crown (P L D 1954 F C 79). It has been held by their Lord. ships of the Federal Court that in the absence of anything on the record it must be assumed that the provisions of section 284 and 285 of the Criminal Procedure Code were complied with by the Sessions Judge. In the case of Muhammad Yusuf Soomar one of the three assessors absented himself on the last day of the trial. There was no finding of the learned Sessions Judge that it was not practicable to enforce the attendance of the assessor who absented himself on the last day of the trial. We would, for these reasons, hold that the trial was not bad in law.

12. There is no direct evidence against the appellant to prove that he murdered Mst. Hakimzadi. The case against the accused rests on circumstantial evidence. The circumstantial evidence against the accused however is so strong that it does not raise any reasonable doubt as to the complicity of the accused in the murder of Mst. Hakimzadi. The evidence consists of the following :‑ (1) The girl was seen last in the company of the appellant. (2) The appellant pointed out the place from where the bones of a child about six years of age were recovered. From this very place certain pieces of clothes were also recovered which were identified by Dhanibux to be part of the frock, which the deceased was wearing when she left the house in company of the appellant. (3) The extra‑judicial confession to P. W. Ghulam Abbas. (4) The conduct of the appellant in running away from Hyderabad. We propose to deal with these pieces of evidence against the appellant separately.

13. Before considering the circumstantial evidence against the appellant it is necessary in the circumstances of the present case to consider whether the prosecution has been able to establish that Mst. Hakimzadi is dead. On the 23rd of August 1960 the accused volunteered to point out to Inspector Muhammad Hussain the place where the dead body of the girl was lying. Muhammad Hussain accompanied by mashir of his namesake proceeded in a police pick up towards Ganjo Hill. The accused was directing the driver of the pick up. When they reached the hill the accused stopped the pick up. He led them to the top of the hill and to a cluster of bushes. He pointed out a Devi bush where the dead body was lying. On search of the bush they found human hair about a foot long. They also found pieces of cloth. They secured a human skull about 135 paces away from the bush. It seems that the skull bone was broken into several pieces. They secured in all 35 pieces of human bones.

14. Dr. Muhammad Ishaque who is a Ph. D. In Anatomy examined the bones and the hair. The relevant portion of his statement reads as under :‑ "Three sealed tins were received by me from S. H. O. Market P. S., Hyderabad. These tins contained a bush of hair and some bones. I produce the receipt of the letter of the S. H. O, Exh. 9‑A. Most of the bones were of animals ; they were sealed again and returned the same day. Remaining bones were human on which I have given my report. The hair appeared to be of human and were long. They presumably belonged to a female. It was not possible for me to state whether they belonged to a child or adult. The following human bones were discovered out of the lot (1) one complete child's skull without the lower jaw, three of the bones of the skull were separated at the joints but when I tried to fit them into the gaps left In the skull being fitted perfectly. On the skull there were two signs of injuries (1) there was vertical crack in the right temple bone and depression of bone both of its outer and inner part." According to the doctor, the age of the child was about six years. The doctor could not of course give the sex from the examination of the skeleton.

15. The pieces of cloth that were secured by the police from the hill at the instance of the accused were identified by Dhanibux the father of the girl, Dost Ali and Mst. Habib Khatoon. Mst. Habib Khatoon stated, after looking at the pieces of the cloth, that they were part of the frock which she had tailored for Mst. Hakimzadi about two months before the incident. Mst. Habib Khatoon is a neighbour of Dhanibux. She used to tailor clothes for others in order to supplement her husband's income.

16. The fact that the human bones were recovered from the top of a hill away from the city, at the instance of the accused, and that they were of a child of about six years of age would show that the bones were that of the child Hakimzadi. In this connection the recovery of hair about one foot long also lends support to the fact that the bones were that of a female. Dr. Muhammad Ishaque also was of the view, in view of the recovery of the hair near the bones that they were of a female child. The recovery of pieces of cloth, identified to be from the frock that the deceased was wearing, is also important, we would hold that Mst. Hakimzadi was dead and that the bones that were recovered from the top of the hill at the instance of the accused were that of Mst. Hakimzadi.

17. On the point that the girl was seen last in the company of the accused there is the evidence of P. W. Dhanibux, Dost Ali, Amiruddin and Misri Khan. P. W. Dost Ali, as we have already stated, was staying with Dhanibux at the time of the incident. His sister was an indoor patient in the hospital. P. W. Dost Ali saw the accused taking away the girl. Dost Ali stated that as the mother of Mst. Hakimzadi had gone away to Tando Agha leaving her in the hospital she was weeping outside the quarter. Accused Abdul Samad came. He asked her as to why she was crying. She told him that her mother had gone away to her relations leaving her behind. Abdul Samad took the girl by her hand told her that he would leave her with her mother at Tando Agha. There is nothing In the cross examination of this witness to suggest that he had any enmity with the appellant. In the cross examination no suggestion has been made, much less proved, as to why P. W. Dost Ali would depose against the accused. Dhanibux stated that while he was in the hospital on duty he saw the appellant taking away Mst. Hakimzadi by her hand. He enquired from Abdul Samad who told him that he was taking the girl to get her some sweetmeats. P. W. Amiruddin Bells various articles like empty tin boxes, soap etc. on the footpath, of the Market Road. He knew the accused. He saw the accused along with a small girl. The accused purchased a small round tin box from him. P. W. Amirud din was shown the photo of the girl. He stated that it was the photo of the same girl whom he had seen in the company of the accused. In cross examination of this witness there is no sugges tion that he is making a statement against the accused under the influence of anybody. In the cross examination the witness however stated that he could not recognise the accused when he was brought to his shop by the police. This fact will not make much difference as he did not resile from his statement about the girl. He stated in the cross‑examination as under: "I have stated before police that the photo looks like the girl brought by the accused. Police had shown me the photo." P. W. Misri is a hotel keeper. He stated that he knew the accused who had come to his hotel in the company of a girl. On seeing the photo of the girl he stated that the photo is of the same girl who had come in the company of the accused. There is nothing in the cross examination of this witness to show that he has any motive to depose against him. In the cross examination a contradiction had been sought to be made out. The witness stated in the cross examination as under :‑ "I have not stated In the Lower Court that I have not seen the accused earlier." The extract reads as under :‑ "I had not seen the accused earlier nor had I seen the girl before police had taken my statement, about 20/21 days after I saw him in my hotel." There is apparently no contradiction in the two statements. All that the witness stated was that he did not see the accused in between the time when the accused came to his hotel and when his statement was recorded by the police. The statement of these four witnesses clearly shows that the girl was seen In the company of the appellant.

18. The accused on the 23rd of August 1960 took the Inspector Muhammad Hussain and the mashir Muhammad Hussain to the top of Ganjo Takkar which is at a distance of about 4 miles from the Civil Hospital, Hyderabad. As a result of his pointing out bones, hair and pieces of cloth were recovered from that place. The bones were that of a child of about 6 years of age. The recovery of the hair about one foot long from near the bones would show that the bones were that of a female child. The recovery of these articles at the instance of the accused from an out of the way place is a very important piece of evidence con necting the accused with the crime. The question however is whether the evidence that it was at the instance of the appellant that these things were recovered is reliable. The evidence in this connection is that of P. W. 17 Muhammad Hussain mashir. He had given a detailed description of how the accused led them to the place from where these things were found. In the cross examination of this witness no suggestion has been made that he has given the evidence at the instance of anyone. It has not been alleged by the learned Advocate for the appellant that the witness had any enmity with the accused. The learned Advocate for the appellant how ever contended that the witness has a hotel near the police station and therefore he has given the evidence under the police influence. There is no reason for the witness to depose falsely under the police influence. Moreover, there is no reason for the police to manufacture false evidence. It has not been suggested to P. W. 18 Muhammad Hussain Inspector in the cross‑examination that he influenced the mashir to give false evidence. The mashir is supported by the statement of the Inspector Muhammad Hussain. Muhammad Hussain stated that the recoveries were made at the instance of the accused. In the short cross‑examination of this witness no suggestion has been made that it was not at the instance of the appellant that the recovery was made. The statement of Muhammad Hussain, it would appear from his cross‑examination, has not been doubted. We agree with the findings of the learned Additional Sessions Judge that it was at the instance of the appellant that the various things incriminating the appellant in the crime were found. The discovery of the various things at the instance of the accused is very important piece of evidence against him.

19. It is admitted by the appellant that he was arrested in Karachi. The question is whether he left Hyderabad after the commission of the offence for Karachi in order to avoid arrest. It would appear from the statement of P. W. 7 Ghulam Mustafa that after having been Informed about the incident he went to one Abdul Latif, a cousin of the accused, who told him his address at Karachi. He came to Karachi and after searching for him he met him on 12th August 1960. On enquiry, the accused told him that he had taken the girl but after getting her sweetmeats left her in the hospital. Ghulam Mustafa asked him to accompany him to Hyderabad but he refused to go along with him. The fact that the appellant left Hyderabad is a circumstance against him. It would show that he was afraid to remain in Hyderabad.

20. Lastly, there is the evidence of P. W. 8 Ghulam Abbas who deposed that the appellant bad told him that he had raped a minor girl and killed her in the act. Ghulam Abbas has a cycle shop. He deposed that he knew the accused from before. He was in Karachi when be met the appellant at Kutchery Road. The accused was with him from 9 a.m. to 5 p.m. The accused requested him to let him stay with him. Ghulam Abbas told him that as he had his own relations he might stay with them. The accused there upon told Ghulam Abbas that Hyderabad police was after him as he killed a girl while committing rape on her. From the cross‑exami nation of this witness it does not appear that he had any motive to involve the appellant in such a serious charge. The witness candidly admitted that he had acted as mashir in two or three cases.. The fact that the police had made him mashir in two or three cases would not lead one to the conclusion that he is under the influence of the police in the absence of any circumstance to show that it was so. The witness is a cycle dealer and there is no reason to believe that he would falsely depose against the accused in such a serious charge. There is no suggestion in the cross‑examination of the Inspector that he had influenced him to depose falsely against the appellant. The learned Additional Sessions Judge believed the statement of the witness. There is no reason to differ from his appreciation of the statement of this witness. The name of this witness must have transpired in the interrogation of the accused by the police. The police must have questioned him after they came to know that the accused had met him in Karachi.

21. We have already stated that the case against the appellant depends upon the circumstantial evidence which In turn depends upon the testimony of various prosecution witnesses. The appellant in his statement under section 342, Cr. P. C., in answer to the question as to why the prosecution witnesses Dost Ali, Dhanibux, Rasool Bux, Ghulam Mustafa and others were deposing against him relied that they were under the influence of Head Constable Ghulam Mustafa with whom he was on inimical terms. The accused stated that he was on terms of illicit intimacy with the sister of Ghulam Mustafa. He produced certain letters. The letters may well have been written by anyone. They are not proved to have been written by the sister of Ghulam Mustafa. D. W. Ghulam Mustafa in cross‑examination stated that his sister was illiterate. Ghulam Mustafa was not asked any question to suggest that the accused was on terms of illicit intimacy with his sister. The only question that was asked in the cross examination was if his sister lives with him and whether she was illiterate. Ghulam Mustafa admitted that his sister lives with him but stated that she was illiterate. From these questions one can not conclude that Ghulam Mustafa had any reason to manu facture a false case against the appellant. Ghulam Mustafa is only a Head Constable and it was impossible for him to persuade Inspector Muhammad Hussain to falsely implicate tire accused. Muhammad Hussain has not been put any question in cross-examination to suggest that he had anything to do with the Head Constable Ghulam Mustafa. The appellant in his statement does not give any other reason except that the witnesses were under the influence of Ghulam Mustafa in order to explain the statement of the prosecution witnesses. The accused, except Jenying the charges against him, has not been able to suggest any reason as to why Dhanibux and others would implicate him. The accused was apparently on good terms with the complainant Dhanibux.

22. It has been laid down in the case of Fazal Elahi (P L D 1953 F C 214) that circumstantial evidence must be ascertained with minute care before any conclusion or inference adverse to the accused parson is drawn. It has been further held in the case of Siraj v. The Crown (P L D 1956 F C 123) that in dealing with the question of sufficiency of circumstantial evidence to sustain a conviction it is to be borne in mind that if on the facts proved, no hypothesis consistent with the innocence oft the appellant can be suggested, the conviction must be upheld. Keeping in view the dictum laid down by their Lordships of the Federal Court we are satisfied that in the present case the circum stantial evidence has been established by reliable and cogent evidence. Moreover we are unable to think of any hypothesis consistent with the innocence of the appellant and none has been suggested. The circumstance that the accused was last seen with the girl and that the recovery of the bones and pieces of cloth of the frock that the girl was wearing was r, covered at the instance of the accused would show that it was he who had done away with the girl. The bones were recovered from the top of a hill which was about 4 miles away from the hospital. The fact that nobody saw the corpse of the girl would suggest that no one ever visited the place. The existence of the bones on the top of the hill was exclusively within the knowledge of the appellant. Besides these facts incriminating the appellant, there is also his extra- judicial confession.

23. For the reasons given above, we would dismiss the appeal and confirm the death sentence. K. B. A. Appeal dismissed.