P L D 1952 Baluchistan 10 (PLP)

R. K. M. SAKER; J. C.‑This is an appeal by the convict- appellant Muhammad Hanif who has been convicted of murder under section 302, Pakistan Penal Code and has been sentenced to transportation for life by the Sessions Judge in Baluchistan by his order dated 6th March, 1951. The facts of this case, as alleged by prosecution, are that the deceased Muhammad Sarwar and the convict‑appellant were sepoys in Quetta. On the 13th March 1949 it was reported that Muhammad Sarwar was absent from his barrack room from the previous night and as a result of this report search parties were sent out and a report was made to the Police at 6‑40 p.m. on the evening of 13th Match 1949. In the meantime at about 6‑30 p.m. the body of the deceased was found on the parade ground near the barrack room. The body was sent for post‑mortem examination and the examination disclosed that there were certain cut wounds on the head and that the throat had also been cut. After the body was found, a blood stained chopper and a razor were discovered near the body in a pool of water the next morning. The case for the prosecution rests entirely on the confes sion of the convict‑appellant supported by circumstantial evidence, since there is no direct evidence which associates Muhammad Hanif with the commission of the crime which is alleged to have taken place some time between 8 and 9 p.m. on the night of the 12th March 1949. The judgment of the learned Sessions Judge in Baluchistan has been assailed on several points, mainly that the confession itself was not voluntary and that the alleged motive, as disclosed in the confession, is not proved. It has further been argued before me that the time when the murder took place was not the time as alleged by the prosecution but that the murder took place very much later. The inference, as suggested by learned counsel for Muhammad Hanif, therefore is that since he returned ultimately to the barrack room at about 9 p.m., he could not be held responsible for the murder if it took place late during the night. In the first place, it is necessary for me to examine the con fession and the circumstances under which it was made to decide whether this confession was a voluntary one or whether it was made as a result of some inducement or threat by the police. I will then, later in this judgment, discuss the question of motive, or its absence or lack of proof, in relation to this crime and in relation to Muhammad Hanif himself. I have very carefully studied the confession as recorded and I observe that it is a very full and detailed statement. It was recorded on 21st March 1949 while the crime was commit ted some time during the night of the 12th/13th March 1949. It is relevant to note from the evidence on record that while Muhammad Hanif was by day in custody of the police he was invariably returned at night to the Quarter Guard where he was kept under Military custody. In his trial, Muhammad Hanif in his statement, has retracted the confession he made on the grounds that threats by the police were held out to him that unless he confessed he would be maltreated. The learned Public Prosecutor has drawn my attention to a ruling recorded in A I R 1949 Nag. p. 407 regarding retracted confessions in which it was held, inter alia, that under the law a confession must be presumed to be made voluntarily unless the contrary is proved. In my respectful opinion, "however, I am unable to discover any provision of law which requires this presumption to be made ; though the principle enunciated is, in my view, a sound one. It would, however, be a principle only, not necessarily having the force of law. In matters of confessions I feel strongly disposed to think that if a confession, which is recorded in the manner required by law, is subse quently retracted by the accused at his trial alleging that he was either under police influence or was likely to be maltreated, the retraction must generally be viewed with suspicion unless there are some indications or inferences that the statement the accused makes in Court is probably true. It may, in many cases, be impossible for a person in custody of the police to prove that he had been maltreated or that pressure was brought to bear on him to confess and it would not, in my view, be in the interests of justice to insist on placing the burden of proof on the accused that his statement retracting the confession was a true one. I consider that in the case of retracted confessions every case must be dealt with on its merits. Without requiring proof a Court might draw inferences, for instance from the fact that the accused had been in police custody for a long time ; or that he was taken immediately from police custody to the Magistrate who recorded his confession. In these circum stances it might be permissible to assume that the confession so made was not a voluntary one. But it would be dangerous to discard a confession properly recorded which, on the face of it, appeared to have been voluntarily made, on the bare statement of the accused in Court that he had confessed under police inducement or threat. In the case before me, however, there is a further point in the ruling referred to above with which I am in entire agree ment. The learned judges stated : " it is to be noticed that the accused was placed before a Magistrate almost immediately after his arrest, and he did not protest even before the Com mitting Magistrate till the time he was examined under section 342, Criminal Procedure Code. One would expect that the earliest opportunity would be taken by the accused to get rid of a confession which was not voluntarily made and also to inform the Court about the beating, if any ". And further in this judgment it was stated : " the confession in question sets out the whole incident with a wealth of detail which it would be impossible to put in the mouth of the appellant Sudama if he had been coached by the police to make a false confession." In all the circumstances of the case before me I consider that it is very similar to the case referred to in this ruling, for although a few days elapsed before the accused confessed he was not solely in police custody and he was in fact produced before a Magistrate under Military escort when he wished to make the confession: Moreover, I am in respectful agree ment with the views expressed that if any pressure by the police had been brought to bear upon Muhammad Hanif to confess it would not be within the bounds of possibility to suppose he would confess in such detail to a crime for which he was well aware that if found guilty he was liable to be sentenced to death. A forced confession would hardly go into such detail as a motive and to describe the full circum stances of the crime. I can therefore come to one conclusion only in this case, namely, that the confession so made was a voluntary one. It will remain later for me to consider the evidentiary value of this confession in relation to the other evidence on record, since as the confession has been retracted' it is a normal rule that it would be dangerous to convict , a person on the evidence of a retracted confession alone. I now come to the question of motive. Learned counsel for Muhammad Hanif has argued that the motive, as disclosed in the confession, is not proved by any of the evidence of the prosecution witnesses. In brief the motive appearing in the confession is that Muhammad Hanif and the deceased were very close friends indeed and that since advances were being made to the deceased by certain other personnel of the Unithe, Muhammad Hanif, decided to the take the life of the deceased rather than that he should be subjected to these immoral advances. Whatever the truth of this part of the confession may be, it will be obvious that no other person would be willing to give evidence in a Court of law as a prosecution witness to the effect that he had immoral intentions towards the deceased. In my view, therefore, it is quite immaterial to consider whether the motive for this crime did in fact exist or whether the motive was a result of the pure imagination of Muhammad Hanif. Real motive may exist or it may be a figment of the imagination. An alleged grudge or grievance, or an actual grievance, may be motive for a crime; and though; motive is of some importance when dealing with a criminal offence it is equally a general principle that absence of motive does not condemn the case for the prosecution outright when there is evidence to prove that the person accused of a crime has committed that crime. In this case the evidence clearly, discloses that Muhammad Hanif and the deceased were very, close friends. Since I have held that the confession was made voluntarily I have no reason to doubt that Muhammad Hanif believed, whether rightly or wrongly, that these immoral advances were being made and that this belief was the motive for the crime. I now come to the other evidence in regard to this case. The most important question at issue is the time at which the crime was committed, for if I were to hold that it was com mitted after 10 p.m. at which time there is evidence to indicate that Muhammad Hanif had returned to the barrack room‑he could not be found guilty and must be acquitted. In review ing the evidence at large it is singularly unfortunate that the majority of the prosecution witnesses have made various statements to the police which are directly contrary to one another. In general these statements appear to have been given not so much as to disclose the knowledge that the witnesses had but to protect themselves against any possible disciplinary action by the Military authorities for their failure to report that the deceased Muhammad Sarwar was absent during the‑whole night. In the light of these remarks it is necessary to examine very searchingly the evidence of the more important witnesses to see whether any reliance can be placed upon it. Learned counsel for Muhammad Hanif claims that no reliance can be placed on the evidence of the witnesses who resile from their previous statement and he has drawn my attention to A I R 1925 Mad.

879. This case however, related to statements made in the committal Court and admitted under section 288, Criminal Procedure Code, whereas the argument in this case relates to statements made to the police. Such statements are not signed and are not made on oath. While they may be used in Court by the defence to test the veracity of a witness, it would not be proper, I think, to make it a general rule of practice to discard the evidence of a witness out of hand because his evidence differed from the statement he made to the police. In confronting a witness with such a statement the sole intention is that the Court may judge whether he is a truthful witness or not ; but circumstances must vary in each case. Statements may be inaccurately recorded ; witnesses may genuinely forget what they said to the, police' if some length of tune has elapsed. All these factors require careful weighing by a Court and every case must be judged on its merits. The most important witness in this case for the prosecu tion is Ghulam Rasul (P. W. 10). In his examination‑in‑chief he states that Muhammad Hanif and the deceased left the barrack at 8 p.m. and that at that time Muhammad Hanif was wearing a green drill trousers and a Mazri shirt with his great coat on his shoulders. He further states that at about 8‑45 p.m. he found that Muhammad Hanif had returned and that at that time he was wearing only his underwear, a woollen vest and the great coat. In his cross‑examination he was search ingly questioned on the various statements he made to the police. I observe that since the trial took place in January 1951 whereas the crime was committed almost two years previously it would hardly be within the bounds of possibility for any witness to remember accurately what he said in various statements to the police made two years earlier unless he had had the opportunity to refresh his mind by seeing those statements. I cannot, therefore, attach any degree of importance to either the possible discrepancies in the evidence of this witness or of any other witnesses in this connection, for human memory is generally short and it would be improper to disregard the evidence in Court of a witness because he is unable to remember what he said in his various statements to the police made two years previously. In other respects the evidence of this witness is not rebutted and is on the contrary confirmed by the evidence of what I may call an independent witness, namely the Dhobi (Fateh Muhammad P. W. 2). He states that at 8 p.m, both Muhammad Hanif and the deceased came to see him. The combination of the evidence of these two witnesses will therefore indicate that Muhammad Hanif and the deceased were together at 8 p.m. arid that Muhammad Hanif returned alone at approximately 8‑45 p.m. When hearing arguments it was brought to my attention that two witnesses of considerable importance in this case had been examined either by the prosecution or by the defence and I accordingly directed them to‑ appear before me and their evidence has been recorded. They are Havildar Irfan Ali and Shaukat Ali. The former witness was the Guard Commander who found that at 10‑15 p.m. the deceased Muhammad Sarwar was absent from the barrack room. He did not report this matter to his superior officer, as he should have done, since, as he states, he intended to punish him himself when he turned up. Later in the night he did report the matter but no action was taken until the following morning. As for the second witness Shaukat Ali, he confirms this evidence by stating that he was on Line Guard duty and should have been relieved at 10 p.m. by the deceased Muhammad Sarwar. Since he was not relieved he reported the matter to the Guard Commander that Muhammad Sarwar was absent and he was subsequently relieved by another sentry. Both these two witnesses made two statements to the police in which they said in the first instance that no one was absent from the barrack room at 10 p.m. In the second statement, however, which they both made they admitted that at 10 p.m. Muhammad Sarwar deceased was absent. In their examination they explained this discrepancy by saying that they thought they would get into trouble for failing to report the absence of Muhammad Sarwar but that subsequently when the Commanding Officer assured them that they would not get into trouble and that they should make a true statement they admitted that the deceased was absent. In their evidence before me they affirm that their second statement to the police was the correct one. The evidence, therefore, would clearly indicate that the deceased Muhammad Sarwar and Muhammad Hanif left the barrack room together at approximately 8 p.m. and that at 10 p.m. the deceased had not reappeared. There is no evidence to show whether the deceased's absence had been noticed earlier. It is therefore in my view perfectly clear that since the deceased was definitely absent from 10 p.m. and never appeared again he must have been murdered before this hour. The next question of importance is the recovery, at the instance of Muhammad Hanif, of the clothes he was alleged to have been wearing, his identification of the hatchet and his pointing out the shop where he had purchased the hatchet. It has been argued before me that since the confession itself must be held inadmissible the recoveries of the various articles at the instance of the accused must also be held inadmissible. Since I am not disposed to agree with this view and have held that the confession was voluntarily made it follows that the evidence in regard to the recovery so made cannot be treated as inadmissible and may be accepted provided I am satisfied with it. Muhammad Hanif pointed out the shop in the city from where he had purchased the hatchet. I cannot find anything to indicate that he acted in this manner as a result of com pulsion ; and while there may be some little doubt as to the identification of Muhammad Hanif by the shopkeeper con cerned, and also the hatchet, the fact remains that there is overwhelming evidence to the effect that a hatchet was found lying near the scene of the crime. Equally while the evidence regarding the razor used may not prove beyond doubt that the razor in question belonged to Muhammad Hanif, there is evidence to show that a razor was also found near the scene of the crime and that, from the medical evidence, this was the weapon with which the throat of the deceased had been cut. When linking this evidence of discovery with the con fession I consider that there is corroboration in all material particulars, for not only was a razor found but also the body of the deceased, when found, was exactly as described by Muhammad Hanif in his confession, namely that a towel was wrapped round the neck of the body and that the head was covered with a pull‑over. The handle of the hatchet when found was also detached from the blade. This fact is equally mentioned. It was further argued before me that the transfer of evidence under section 33 of the Evidence Act was not proper since discretion was not properly exercised in this respect. I am, however, unable to accept this argument for I observe that at the time the learned Sessions judge proposed to transfer this evidence no objection by the accused was taken to it. I am therefore not prepared to accept this as an argument indicating prejudice ‑in the trial of the convict‑appellant. A further point argued was that when the confession was made the accused was not informed that he was before a Magis trate. I observe that the Magistrate concerned has been exa mined as a prosecution witness and he states in evidence that he did inform the accused that he was a Magistrate though the written form used for the confession does not disclose this fact There is no reason, however, for me to accept the statement of the accused as against the evidence on oath of the Magistrate concerned and I must therefore assume that Muhammad Hanif was duly warned before he made his confession that he was making it to a Magistrate. In summing up the case I consider that the confession was made voluntarily and is therefore valid as evidence against Muhammad Hanif. This confession is supported in all material particulars by the evidence of the prosecution and‑ the evidence, though circumstantial, is so overwhelming that there can be no shadow of doubt that Muhammad Hanif was responsible for the murder of Muhammad Sarwar and has been properly convicted. In these circumstances the appeal is dismissed and the sentence of transportation for life is upheld. A. H. Appeal dismissed.