P L D 1972 Karachi 635 (PLP)

(iv) Securing of blood‑stained hatchet from the possession of the appellant and his blood‑stained clothes which have been duly found to be stained with blood from human origin by the Chemical Analyser. (v) The appellant having brought out the dead body of the deceased from the canal in which he had gone and taken it out with two stones along with it before the police.

9. P. W. Mohammed Saleh, the son of the deceased in his evidence, inter alia, substantially has stated that about 8 or 9 days before the dead body of the deceased was recovered at the instance of the appellant, the appellant alongwith Shafu and Sadiq had come to their house in their village and they told to the deceased Noor Mohammad that Khaliqdino had a bullock for sale. The deceased then took Rs. 500 in cash from his another son Mohammed Ishaque and then accompanied these three persons Moharram, Shafu and Sadiq for purchase of bullock at about 2 p.m. Thereafter, until the dead body of the deceased was recovered by the police there was no trace of the deceased although this witness his son had tried to find out his whereabouts but had failed in that attempt. This witness then further goes on to say that about 7 days after his father left in the company of appellant and two others named above, his brother Ishaque and Fakir Mohammed then came to his village and gave him information regarding discovery of the dead body of his father from the canal. He therefore came to the village of the appellant and identified the dead body of his father Nooro lying there. He also said that his brother Ishaque and the police were there. Obviously, he did not see the appellant because he had reached the place from where the dead body was recovered on the next day when it was actually taken out by the appellant before the police and the aforesaid mashirs. Thereafter P. W. Mohammed Saleh had gone to Larkana Police Station and lodged his report Exh. 24 there for the murder of his deceased father and he made the present appellant and two more i.e. Shafu and Sadiq, as suspects for that murder. This F. I. R. obviously cannot be treated as the First Information Report for the present case as ft was recorded during the course of investigation by the police party when the information of the murder was given by the appellant to the Head Constable P. W. Mohammed Hussain at Baharo Out‑post, who had started the investigation. This First Informa tion report of Larkana Police is therefore hit, by section 162, Cr. P. C. and is not admissible in evidence. However, it can be used as a prior statement of P. W. Mohammed Saleh for the purpose of his corroboration and contradicting him. This witness has already said that their families i.e. that of the appellant and of P. W. Mohammed Saleh, were on visiting terms for the last 5 or 6 years and that is why the deceased had gone to the house of the appellant and had passed the night there as will be discussed later on. This witness P. W. Mohammed Saleh has admitted in his cross‑examination that he was accused for murder of Niaz four five years ago and that his father Khan Mohammed was accused for another murder but this admission by him would not make him an unreliable witness although he is related to the deceased being his son and this relationship by its.‑If would not have the adverse affect on his credibility. He was involved in the murder case about 4 to 5 years before he gave his evidence, therefore, due to elapse of so much time it cannot be said that his evidence is rendered unworthy of credence. However, it will be seen, as will be discussed later on that he is sufficiently corroborated by other independent evidence on record. Mere relationship of P. W. Mohammed Saleh with the deceased being his son would not by itself affect adversely the value of his evidence because this rule of appreciation of evidence by now has been clearly laid down by our Supreme Court in the case of Suleman Shah v. Ayub and 5 others (P L D 1971 S C 751) in its head‑note (b). I might also add that P. W. Mohammed Saleh, the son of the deceased, did not have any enmity with the appellant nor is any alleged by the latter against him. This circumstance, there fore, makes his evidence quite reliable and it is worthy of belief that the appellant alongwith two others had come to the house of the deceased and had taken him away who accompanied them for the purpose of purchase of bullock, as said by his son P. W. Mohammed Saleh, whereafter, he was not seen alive.

10. The next piece of evidence is the extra judicial confes sion of the appellant which he made to P. W. Mohammed Sadiq. This witness, inter alia, substantially stated that he was the Nekmard of the appellant and his father as they belonged to his community. About 13 months before he gave evidence in the trial Court father of the appellant had come to him in the morning at his otak and informed him that a dead body was lying under water in canal by the side of his house. He made enquiries from him about this body when the father of the appellant left to bring his son. P. W. Mohammed Saleh brought his son, the appellant, with him after about half an hour before P. W. Mohammed Sadiq. The latter asked the appellant as to how the incident had taken place ? The appellant then stated' to him as under :‑ "Moharram then made a clean breast of the whole affair and told me that he had committed this murder of Noor Mohammad. He said that he woke up from sleep at his house during that night to feed the cattle. He found two persons sleeping together on a cot in the cattle‑shed. They were his mother Mst. Janul and deceased Nooro. On seeing them in that position he was overcome to kill them by Ghairat and he then went back to bring his hatchet to kill them ; by the time he returned with the hatchet his mother had left the cot and gone away. He then took Nooral outside to the canal bank on the pretext of assisting him to carry a log of wood. As the deceased ‑ bent down to pick up the log he gave him a hatchet blow on account of which the deceased fell down. He again gave the blow and threw his dead body in the canal."

11. This witness also said that when appellant Moharram came to him, he had his hatchet with him, and the appellant had further told him that he had committed the murder 3 or 4 days prior to the discovery of the dead body. The appellant had lastly told him that he had placed stones on the dead body of Noor Mohammed in the canal. This witness P. W. Mohammed Sadiq appears to me to be quite independent and disinterested witness because he is neither related to the deceased nor has any enmity or grudge against the appellant. He being the Nekmard of the appellant and his father it appears quite likely that the appellant had made a clean breast of the whole affair and made the extra‑judicial confession reproduced above. I find no reason on record to disbelieve this extra‑judicial confession which appears in line with the judicial confession made by the appellant which will be referred to later on. In his cross‑examination P. W. Mohammed Sadiq has admitted that police had detained the appellant, his father, mother, wife and sister at the police station and they were beaten by the police and were kept at Baharo Out‑post for 5 days and at Gambat Police Station for 3 days, where they were beaten there but he was not there. Obviously, this admission has been made by P. W. Mohammed Sadiq in order to oblige the appellant because it appears clearly on the face of it and from the ambient circumstances of the case. This admission cannot be believed because the appellant had made his judicial confession on the next day of his arrest and, thereafter, obviously, it was no use, for the police to maltreat or to beat the father of the appellant or his wife or his mother. Therefore, the question of the father of the appellant, his mother, his wife and his sister being detained at the police station and being beaten for 5 days and 3 days i.e. for 8 days, obviously is a lie and cannot be relied upon. This witness has also further admitted towards the end of his cross‑examina tion that he had assured the appellant to get him off from the police. This assurance to the appellant by P. W. Mohammed Sadiq might without careful thought deemed to be a promise or inducement whereupon the appellant made the extra‑judicial confession, therefore, it might be said that it is hit by the provisions of section 24 of the Evidence Act. This section 24 is in the following words :‑ "A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."

12. Obviously this section is to bring a statement within its rule of exclusion has to satisfy the following five require. (1) That the statement amounts to a confession. (2) That it was made by him at a time when his position was that of an accused person. (3) That the statement was because of some inducement, threat or promise. (4) That the inducement, threat or promise was held out by a person in authority. (5) That the inducement, threat or promise had reference to the charge and gave him reasonable ground for supposing that by making the confession he cannot gain any advantage or avoid any evil of a temporal nature with reference to any proceedings against him.

13. It will be seen from the circumstances of this case that the requirements Nos. 2 and 4 referred to above are not satisfied in this case as the appellant at the time he made the extra‑judicial confession to P. W. Mohammed Sadiq was not an accused person because by that time no First Report regarding the murder of the deceased had been lodged with the police anywhere ; secondly, that it cannot be said that P. W. Mohammed Sadiq was a person in authority to give the appellant the necessary inducement and promise as has been mentioned in section 24 of the Evidence Act. For these reasons then I find that the extra‑judicial confession is clearly admissible against the appellant and it has been fully proved by P. W. Mohammed Sadiq, whose evidence on this point cannot be doubted. He has also reproduced the actual words of the extra judicial confession of the appellant as this is a requirement by law and the relevant decision on this point is the case of Ishaque v. Crown (P L D 1954 F C 335), wherein their Lordships have laid down that the actual words of the extra judicial confession should be reproduced. In the instant case this requirement is also fully satisfied, therefore, I am of the opinion that the extra‑judicial confession was actually made by the appellant to P. W. Mohammed Sadiq. Then we have the judicial confession of the accused Exh. 7 which is as follows :‑ "I have committed murder due to Ghairat. I will not be now `Bay‑Ghairat' and will speak truth. Q. What you have to say ? A. About 8/10 days back, I was sleeping in my house at my village. At about mid‑night I got up to give fodder to the cattle. The shed under which the cattle was tethered, there were also lying two cots. Slight fire was burning. I saw from a distance that two persons were sleeping on one cot. I further saw that both the persons were shaking. The bed was also shaking. I went inside to bring a hatchet. In my absence the woman went away but the man was sleeping. I tried to trace out the woman but she was not traceable. I, thereafter went towards the shed to see that who was that person. I asked question from that person who he was. Whereupon he replied that he was Nooral and he had come to pass the night there. I told him that I have to take one piece of wood from the canal So he may accompany me and help me in picking. I hid the hatchet below the arm. It was dark night and still it was not morning. I took him at the wooden piece when he bent down to take the wooden piece, I gave him a hatchet blow on his neck. He fell down. Thereafter, I gave him another blow. Again I made him straight and gave him a hatchet blow on his stomach. He was wearing his dress and boot when I tied a stone with his stomach and threw him in water. Thereafter I went to the house. All that day my mother was not available. On the next day my mother came in the house. Thereafter I asked her whether she was with Nooral ? She replied in affirmative. I did not dare to kill her. I have taken out the dead body and gave the same to the police. L. T. I. of Moharram. (Sd.) Illegible. Mukhtiarkar & F. C. M., Gambat." This judicial confession of the appellant is clearly of incriminating nature and makes the appellant fully responsible for the murder of the deceased. It also discloses that after murdering the deceased he had tied stones with his stomach and threw him into the water in the canal by the side of his house and the dead body was taken out by the appellant from the canal before the Head Constable Mohammed Hussain and mashir Ali Raza Shah. who also deposed to that effect. The appellant also admits in his judicial confession that he had taken out the dead body from the canal and gave the same to the police. It has been already noted in the discussion of the evidence above that at the time the appellant had taken out the dead body from the canal it was not visible from out side as stated by P. W.. Head Constable Mohammed Hussain because it was in water which was quite deep, at least knee high, as the evidence discloses, therefore, this place was exclusively within the knowledge of the accused and it is for him to explain how he came by that knowledge and in the absence of any satisfactory explanation on his part this circumstance would obviously serve to corroborate the judicial confession. The extra judicial confession referred to already also substantially tallies with what the appellant has said in his judicial confession. Regarding the judicial confession the appellant in his statement said that he made it because he was tortured by the police and his case seems to be that his father, mother, wife and sister were detained by the police and beaten, therefore, he had under coercion made the judicial confession. But all these allegations appear on the record to have been not established and mainly so for the reason that the judicial confession was made by the accused on the next day of his arrest and there was no need on the part of the police to have, detained his father, mother, wife and sister for 8 days as admitted by P. W. Mohammed Sadiq in his cross‑examination which I have already held to be a lie and it also appears so from the circumstances of the case. On this point the evidence of the. father of the, appellant P. W. Mohammed Saleh and mother of the appellant P. W. Mst. Janul, who have been examined by the prosecution may be referred to. The father of the appellant inter alia, has deposed that he had gone to Larkana for 2 days and on his return to his village he was informed by his son, the appellant, that a dead body of a man was lying in the canal under water near their village. Their house was situated on the canal bank. He also stated that he accompanied his son and found the dead body lying at a distance of 50 paces from the house inside the canal. The water in the canal was waist high. He then went and informed his Nekmard Wadero Mohammed Sadiq (already referred to above) about it. He told P. W. Mohammed Sadiq that a murder had taken place and the man's body was lying in the canal by the side of their house. He also told him that his son had conveyed this information to him. Wadero Mohammed Sadiq asked this witness to bring his son and, accordingly, he took his son to the Wadero Mohammed Sadiq. His son then informed the Wadero that he was watering the bullocks when he found the dead body lying in the canal. The Wadero then directed them to lodge this report with the police. Thereafter, he and his son, the appellant, went to the Police Out‑post Baharo and Informed the Head Constable about the dead body. Two or three men from the public, he also stated, were also present at the out‑post at that time. In his cross‑examination he has said that the police had detained him as well as his son, the appellant, his daughter‑in‑law Mst. Sharifan, his daughter Malookan, and his wife, at the Out‑post Baharo for 5 days and thereafter at Gambat Police Station for about 3 days. He also alleged that his women folk were beaten and disrespected and that the police had tortured them by introducing kittens inside their trousers. He also admitted that mashir P. W. Ali Raza Shah was a B. D. member. Obviously this evidence of the father of the appellant cannot be relied upon in view of the other incriminating piece of evidence on record against the appellant and the father is giving his evidence which he has given in order to exonerate his own son. However, he admits that he had taken his son to P. W. Mohammed Sadiq which also lends support to the fact that P. W. Mohammed Saleh, father of the appellant, had brought the appellant to him who made his judicial confession to him as already referred to above. It is but natural that the father of the appellant would try to save the appellant, who is his son, and would go to any length to make any statement which might favour his defence case. I, therefore, find that the evidence of the father except his admission referred to above cannot be relied upon nor there are any other corroborative circumstances to lend support to his version of the detection of the dead body by the appellant.

14. Coming to the evidence of the mother of the appellant, namely, Mst. Janul, she has, inter alia, deposed that about 13 months before she gave evidence the appellant had come in her house. Her husband had gone to Larkana for 2‑3 days prior to the discovery of dead body. She, her son, daughter‑in -law and married daughter resided in their house. She denied that her son, the appellant, had found her in compromising position with Nooro on one cot and had, therefore, killed Nooro on account of Ghairat. Her statement under section 164, Cr. P. C. was produced on the record as Exh. 22 but she was not contradicted with It. Obviously, she being the mother of the appellant has given the evidence which she had deposed to in order to save her son somehow or the other. She also stated in her cross‑examination that police had detained her husband, herself, her daughter and her daughter‑in‑law along with the appellant for 5 days at the Out‑post Baharo and tortured them and further that they wore also kept at Police Station Gambat for 3 days. She then added that appellant Moharam had also made the confession due to maltreatment by the police. Clearly this allegation is inconsistent with the facts and circumstances which appear from the other evidence on record particularly that the appellant made the confession on the next day of his arrest i.e. on the day following when he pointed out the dead body of the deceased and took it out from the canal, therefore, there would be no need for the police to have tortured these persons after the judicial confession had been made by the appellant. It is, therefore, abundantly clear that the allegation of Mst. Janul the mother of tire appellant cannot be relied upon. The judicial confession of the appellant, therefore, appears to me to be voluntary and true.

15. In the judicial confession and the extra‑judicial confes sion the appellant has not disclosed that he had gone to the house of the deceased alongwith Shafu and Sadiq and told him to purchase the bullock which was available for sale and then the deceased had accompanied them for purchasing the bullock as alleged by the son of the deceased Le. Mohammed Saleh. But this discrepancy in the evidence would not adversely affect the prosecution case because even if we discard this version of P. W. Mohammed Saleh, the son of the deceased, still there is more than enough evidence on record to connect the appellant with the present crime. It may well be that P. W. Mohammed Saleh, son of the deceased, has made this allegation about the appellant having lured away his father in order to implicate the appellant for his murder.

16. Next piece of evidence is the production of blood stained hatchet by the appellant and securing of his blood stained clothes by the police when the appellant appeared at the Police Out‑post Baharo. These facts have been stated by mashir P. W. Ali Raza Shah and the Head Constable P. W. Mohammed Hussain who is the complainant in this case and who secured blood‑stained hatchet and clothes of the appellant from his person regarding which he prepared a mashirnama that has been already referred to above. These two witnesses have deposed to this recovery of the hatchet and the blood stained clothes and these articles have also been found to be stained with human blood by the Chemical Analyser in his report Exh. 29, and T find no reason not to rely upon this evidence. The evidence both of the mashirs P. W. Ali Raza Shah and the Investigating Officer P. W. Head Constable Mohammed Hussain appears to be quite worthy of credence and they have no enmity or any grudge against the appellant nor any has been alleged by the latter against them. I, therefore, find their evidence on this point quite reliable and as such come to the conclusion that the recovery of the hatchet and blood‑stained clothes from the person of the appellant also go to corroborate the judicial confession and extra‑judicial confession. The other circumstances that corroborate the judicial confession and the extra judicial confession made by the appellant is the fact that he had pointed out the dead body of the deceased and brought it out from the canal bed under water where it was not visible from the surface and that place was about 60 paces away from his house. This circumstance also shows that the judicial confession of the appellant is true and voluntary. Recovery of the dead body at the instance of the appellant particularly very strongly corroborates the judicial confession and the extra‑judicial confession of the appellant. All the above evidence, I am of the opinion, therefore, clearly brings home the offence to the appellant and he has been rightly held guilty therefor by the trial Court. The bare denial of the allegations of the prosecution is of no assistance to his case as his denial of the charge against him coming from his own mouth only would not be of any help to him.

17. For the foregoing reasons I see no ground to interfere with the conviction and sentence of the appellant which is already a light one and, therefore, I am of the opinion that this jail appeal is without any merit as such, accordingly, it is dismissed. S. G. D./S. A. H. Appeal dismissed.