P L D 2007 Karachi 1 (PLP)

RAHMAT HUSSAIN JAFFERI, J.

The present appeal is directed against the judgment,' dated 5-4-2002 passed by learned VI-Additional Sessions Judge, Larkanaln Sessions Case No.219 of 1998 State v. Muhammad Ramzan. Under the impugned judgment, the learned Judge convicted the appellant under section 302, P.P.C. and sentenced him to suffer imprisonment for life and fine of Rs.50,000 by directing that after realization of fine the same be paid to the legal heirs of deceased or in default thereof to suffer R.I. for six months with benefit of section 382-B, Cr.P.C.

2. Brief facts giving rise to the present appeal are that on 21-2-1998 at 9.45 a.m. complainant Nizamuddin lodged F.I.R. at Police Station Kambar alleging that he along with his son deceased Muhammad Siddique, P.Ws. Fateh Muhammad and Yakoob had gone to Kamber town for their work. After finishing the work they were returning to their village on a donkey cart. They reached at old bus stand at about 9.30 a.m. where they saw the appellant Muhammad Ramzan, armed with a hatchet standing there. The appellant immediately came and caused three hatchet blows to the deceased who received the injuries and fell down on the ground. The appellant disclosed that he had taken the revenge of murder of his cousin Balach thereafter the appellant ran away. The complainant leaving the P.Ws. at the place of incident went to police station and lodged the report.

3. The police after registration of the F.I.R. reached the place of incident where they found the dead-body of the deceased Muhammad Siddique lying there. The Investigating Officer sent the dead-body to hospital for post-mortem examination. He recorded the statements of witnesses. On the same date he arrested the appellant and secured blood-stained hatched from his possession. On the same date the appellant was produced before a Magistrate for recording his judicial confession where his confession was recorded. The hatchet was sent to Chemical Analyzer for examination and report, whose report was in positive. After completing the usual investigation the appellant was challaned in the Court where he was tried and convicted on 26-1-1999 with same substantive sentence. The appellant challenged the said judgment before this Court. The appellant's appeal was allowed and the case was remanded to the trial Court for recording the statement of the Investigating Officer. After remand of the case the trial Court made efforts to procure the attendance of the Investigating Officer but he was not traceable. The process were issued from 10-4-2000 and onward but ultimately on 5-3-2002 the prosecutor gave up the Investigating Officer on the ground that he was not traceable. Then the trial Court recorded the statement of the appellant under section 342, Cr.P.C. afresh. The trial Court after hearing the counsel and evaluating the evidence convicted and sentenced the appellant as mentioned before under the impugned judgment. Hence the present appeal.

4. The learned Advocate for the appellant has argued that the eye-witnesses are chance witnesses that the mashir of the place of the incident; found one blood-stained hatchet lying at the place of incident that the prosecution story is highly improbable that the incident took place on 21-2-1998, the appellant was arrested on the same date and his confession was recorded on the same date which is highly improbable; that the ocular testimony is in conflict with the medical evidence as according to ocular testimony the deceased had received three injuries whereas medical officer found four injuries on the person of the deceased; that the evidence of the witnesses is contradictory to each other and that the judicial confession was not voluntary and true therefore, the confession cannot be safely relied upon.

5. On the other hand, learned State counsel has stated that the prosecution has led oral evidence in the shape of three witnesses who have fully supported the prosecution case and implicated the appellant of causing hatchet injuries to the deceased; that the medical officer has supported the ocular testimony; that the appellant had produced the blood-stained hatchet; that the appellant had made judicial confession which has been supported and corroborated by the oral testimony. He has supported the impugned judgment.

6. I have given consideration to the arguments, gone through the evidence with the help of learned Advocate for the appellant and find that the prosecution case rests upon three pieces of evidence; i. ocular testimony, 2. judicial confession and 3. recovery of blood-stained hatchet.

7. First of all, I will take up ocular testimony which consists of complainant Nizamuddin, P.Ws. Muhammad Yakoob and Fateh Muhammad. Their evidence reveals that on the date of incident they and deceased went to Kamber Town. After finishing their work, they were returning to their village on a donkey cart when at about 9.30 a.m. they reached at the Bus Stand where the appellant was standing armed with a hatchet who came and caused three hatchet injuries to the deceased and then the appellant ran away by disclosing that he had taken revenge of murder of his cousin Balach. All the three witnesses were subjected to cross-examination. The cross-examination was basically to obtain clarifications about the place of incident, the manner in which they reached the place of incident and receipt of injuries by the deceased at the hands of the appellant. All the witnesses have successfully replied the questions of the defence counsel and passed the test of cross-examination. There are no material contradictions or discrepancies in their evidence. The evidence of these witnesses was recorded after six years of the incident, therefore, some minor contradictions can occur in the evidence which can be safely ignored. The deceased was referred to medical officer who found the following injuries on his person. "(1) Incised wound 10 c.m. x 5 c.m. x brain deep on the vault of skull little to the left side. (2) Incised would 12 c.m. x 6 c.m. bone deep x brain deep on the right parietal region. (3) Incised wound 14 c.m. x 5 c.m. x brain deep on the left side of occipital region, temporal region extending up to left ear pinna, dividing it into two parts. (4) Incised wound 10 c.m. x 5 1/2 c.m. x brain deep on the posterior part of both parietal region." The medical officer opined that the deceased had died on account of the said injuries. The injuries were caused by sharp cutting weapon such as hatchet.

8. No doubt the P.Ws. deposed that the appellant had caused three hatchet injuries but the medical officer found four hatchet injuries on the person of deceased. As such there is discrepancy of only one injury on the person of deceased. The same discrepancy can be ignored because the evidence was recorded after six years of the incident and such type of discrepancy is bound to occur because of long span of time between the incident and giving evidence in Court. Nevertheless the fact remains that all the witnesses deposed that the appellant was the person who had caused hatchet injuries to the deceased. Their presence at the place of the incident has not been disproved. The F.I.R. was lodged within a period of 15 minutes in which the name of the applicant with specific role of causing injuries to the deceased has specifically been mentioned. As such the promptly lodged F.I.R. can be taken as one of the circumstances for eliminating the false implication of the sole appellant. Thus the prosecution has proved the ocular testimony.

9. As regards judicial confession of the appellant, the prosecution did not examine the Magistrate who recorded the confession on the ground that he had died, which has been confirmed by the letter, dated 19-11-1995 of Additional Secretary (Revenue) Board of Revenue Sindh Hyderabad. In order to prove the confession the prosecution examined Aijaz Hussain. He worked with the Anulabdin Mukhtiarkar & F.C.M. who recorded the confession of the appellant. He produced the said judicial confession of the appellant as Exh.14. He deposed that he was well conversant with the signature and handwriting of Anulabdin Mukhtiarkar and F.C.M. After seeing Exh.14, he deposed that it was in the handwriting of Anulabdin and it also bore his signature. The Advocate for the appellant did not cross-examine the witness.

10. In the judicial confession, the appellant confessed his guilt and stated that on the date, time and place of the incident, he saw deceased coming on a donkey cart and caused him 3 or 4 hatchet injuries on his head. He disclosed the cause of murder that the deceased had killed his cousin Mohammad Balach by causing him gun shot injuries, but under his influence got the said murder declared as accidental death, therefore, he took the revenge.

11. Now question arises as to whether or not the said confession can be used against the appellant?

12. In this connection I have gone through the relevant provisions of law and find that there are two provisions in Qanun-e-Shahadat Order, 1984 (hereinafter referred to as the Order, 1984) which are relevant for the purpose of meeting with the situation when the Magistrate who had recorded the confession has not been examined. One provision is illustration (e) of Article 129 and second Article 91 of the Ordinance, 1984. Under illustration (e) of Article 129, the judicial and official acts are presumed to have been regularly performed. Under Article 91 of the Order, 1984 if a document is produced before the Court purported to be statement or confession of an accused person etc. recorded in accordance C with law signed by the Magistrate then the Court is required to presume that the document is genuine; that any statement as to the circumstances under which it was taken, purported to have been made by the person signing it, are true and that such evidence, statement or confession was duly taken.

13. The said Articles are based on the maxim; omnia praesumuntur rite esse actg. The maxim means "all things are presumed to have been done rightly."

14. I have gone through the judicial confession Exh. 14 and find that it was recorded in accordance with law and after performing all the legal requirements, containing the required certificate of the Mukhtiarkar with his signature, which has been proved through P.W. Aijaz Hussain, and having the signature of the appellant. As such, inference under illustration (e) of Article 129 and Article 91 of the Order, 1984, is drawn that the confession Exh.14 is a genuine document, statements as to the circumstances under which it was taken seems or purported to have been made by the person signing it are true and was duly taken.

15. The confession is supported by medical evidence and ocular testimony. Further the incident took place on 21-2-1998 at 9-30 a.m. The appellant was arrested on the same date at 11.00 a.m. The police produced the appellant before the Magistrate on the same date at 1-00 p.m. The Magistrate allowed time for reflection and at 3-30 p.m. the confession was recorded. As such promptly recorded confession has eliminated the possibility of inducement or torture. The Magistrate also attached the certificate that the confession was voluntary. Thus the confession has been proved.

16. It has been noticed that no witness has been examined to depose about the identity of the appellant to be the same person who was produced before the Magistrate for recording his confession. In such a situation a question has arisen, whether under Articles 91 and 129 a presumption can be made about the identity of the deponent or confessor?

17. On examination of case-law on the subject, it has been found that there is difference of opinion concerning the presumption about the identity of the person who made the statement or confession. Therefore, it has been found necessary to examine the law to arrive at the conclusion whether or not presumption of identity of the person can be made from the statement or confession.

18. A series of authorities hold the view that no presumption can be made regarding the identity of the deponent or confessor. Few authorities are as under:-- (1) The Queen v. Nussurddin, 21 WR 5 (Cr). It has been held that when a person denies having made the statement contained in the deposition, no presumption arises under section 80 of the Evidence Act (Article 91 of the Order, 1984) of having made the statement. (2) Brajaballar Ghose v. Akhov Bagdi, AIR 1926 Cal. 705 and Muhammad Ali v. E, AIR 1934 All. 81, it has been held that a certified copy of the deposition of a witness or the confession of an accused person would not come in by itself; it is necessary to adduce evidence proving the identity of the person who gave the evidence or made the confession. (3) Privy Council in the case of Maqboolan v. Ahmed Hussain, 31 IA 38, held that the heading of a deposition in which the name, age, residence, etc. of the witness is stated is only descriptive of the witness and does not form part of the evidence given by him on solemn affirmation.

19. The other authorities hold the view that the presumption can be made concerning the identity of the person who made the statement. Some of the authorities are as under:-- (1) Surabjit v. Mata Din, 60 IC 437, Oudh High Court held that the mere fact that there is. no oral evidence to identify the deponent if a deposition made more than 60 years previously is not sufficient to render the provisions of section 80, Evidence Act (Article 91 of the Order, 1984), inapplicable thereto. (2) Hari Ram v. E, AIR 1926 Lah. 122 that the confessional statement made by a dead person recorded in accordance with the law by an officer authorized to record it and signed by him must under section 80, Evidence Act (Article 91 of the Order, 1984) be presumed to be genuine and as having been made by the person by whom it purports to have been made. (3) Bagwat Prasad v. Sher Khan, AIR 1926 Oudh 489, it had been held that where the document containing the deposition of a particular person is a very old document, one can turn to the deposition itself to find out whether there is inherent evidence of the identity of deponent. (4) Privy Council in the case of Baijnath Singh v. Jamal Bros, AIR 1924 PC 48, has held that where an endorsement made on ,a document by the Sub-Registrar shows that it was presented for registration by the mortgagee, there being a presumption in favour of the correctness of his official endorsement, the document was presented by the mortgagee. Similar view was also taken in the case of Apaya Dundyappa v. Govind Dallatraya AIR 1956 B 625. (5) Privy Council, yet in another case of Gopaldas v. Sri Thakurji, AIR 1943 P.C. 83, has held that the Court may under section 114 of the Evidence Act (Article 129 of the Order, 1984) presume the identity of a person, who appears before Sub-Registrar, on the mere production of a registered document having an endorsement that person appeared before him and admitted execution of the document.

20. From the examination of case law of the subject, it is clear that from the year, 1924 in the case of Baijnath Singh (supra) till 1943 in the case of Gopaldas (supra) constant view of the Privy Council was that G under Articles 91 and 129 of the Order, 1984 presumption is attached to the identity of the person mentioned in the document. In the case of Hari Ram (supra) document can be examined to find out the inherent evidence of the identity of the person. Following the above rule of Privy Council, I draw the presumption and inference that the confession was made by the appellant.

21. However, I have examined the confession to find out whether or not there is evidence of identity of the appellant. I find that the appellant was produced by the A.S.-I. before, the Magistrate. On enquiries, the appellant disclosed his name and father's name, which the Magistrate mentioned in the confession. The appellant has not denied his name and name of his father mentioned in the confessional statement. On examination of the body of the person to ascertain whether or not the appellant was tortured, the Magistrate found a mark of injury on his forehead and a mole on his left cheek. These are identity marks of the appellant, but the appellant did not deny that the said marks are not available on his person. The Magistrate obtained the signature of appellant on the confession. But the appellant stated in his statement under section 342, Cr.P.C. recorded on 22-12-1998 that he was illiterate. Thus there is inherent evidence available in the confessional statement about the identity of the appellant.

22. It is pertinent to point out that a presumption is a rule of law. However, under Article 2(7) and (8) of the Order, 1984, the Court may H or shall, respectively draw a particular inference from a particular fact or from particular evidence, unless and until the truth of such inference is disproved.

23. Under the Order, 1984 some presumptions are "obligatory", in the sense that the Court is bound to raise them. Such presumptions are mentioned in Articles 90 to 95 and Article

99. Whereas some presumptions are merely "permissive" in the sense that the Court; may or may not raise them. Such presumptions are mentioned under Articles 96 to 98, 100 and

129. The presumptions mentioned in Articles 90 to 100 and 129 are not conclusive but rebuttable. There are some presumptions, which are irrebuttable. They are indicated in the Order, 1984 by the expression "conclusive proof". No evidence can be allowed H to be given in rebuttal of such presumptions. They are available in Articles 55 and 128.

24. The Articles 91 and 129 of the Order, 1984 are rebuttable, therefore, the appellant is required to disprove the said presumptions. The appellant did not lead any evidence to rebut the above presumptions. However, the appellant in his statements recorded on 22-12-1998 and 4-3-2002 gave the following answers to a question put by the Court about the confession:-- Statement, dated 22-12-1998. "No Sir, police did not produce me before any Magistrate nor I confessed the guilt, signature thereon is not mine, as I never sign put signature but put LTI being illiterate. Police falsely concocted my signature on it." Statement dated 4-3-2002. "No sir. It is false. Police did not produce me before any Magistrate, nor I have made voluntarily confession admitting my guilt".

25. From the examination of both the statements, it is clear that in his first statement, he disclosed that he was illiterate therefore, he denied his signature on the confession, but he had abandoned such plea in his second statement. In both the statements he had retracted from his confession but from the evidence it has been found that it was corroborated from the evidence. However, in the second statement, he did not deny the recording of his confession, but he pleaded that it was not voluntary. No evidence has been led by the appellant to prove such assertion. But from the evidence it has been found to have been voluntarily made. For disproving the presumption, the appellant is required to lead a strong and reliable evidence but he failed to lead such evidence. In the case of Sheodarsham Lal v. Assessar Singh, 46 IC 52, it has been held that the presumption as to the legality and correctness of a Court proceedings can be overturned only by evidence which is exceptionally strong. Thus the appellant has failed to rebut the presumptions.

26. However, in order to satisfy my own conscience, I had called the appellant to verify the identity marks of the appellant mentioned in the judicial confession which were found on his person at the time of his recording judicial confession by the Magistrate. On verification I found an injury mark on the forehead and mole on his left cheek which are corresponding with the identity marks of the appellant mentioned in the judicial confession. Thus I am convinced that it was the appellant who made the confession and his identity has also been proved. Thus the prosecution has proved the judicial confession.

27. As regards the production of hatchet, the mashir has stated that the appellant had produced hatchet before the police in his presence which was secured by the police at the time of his arrest. But he did not J state that the hatchet was sealed by police or not. However the Chemical Analyzer report shows that the hatchet received by him from the police in this case was stained with human blood.

28. After considering the material available on record I am of the considered view that the prosecution has proved the case against the appellant beyond any reasonable doubt, therefore, the trial Court had rightly convicted and sentenced the appellant under the impugned judgment which does not require any interference.

29. Above the reasons of my short order, dated 15-2-2005 by which I had dismissed the appeal. S.M.B./M-120/K???????????????????????????????????????????????????????????????????????????????? Appeal dismissed.