P L D 1962 (W (PLP)

SAJJAD AHMAD JAN, J.

Sayed Mehr Gul Shah (25/26) is under a sentence of death, subject to confirmation by this Court awarded by the learned Additional Sessions Judge, Peshawar, for the murder of Mumtaz Ali (35) on the afternoon of the 7th of June 1961, at "Chauk Bazazan" in the heart of the City of Peshawar. His appeal and the reference made to us for the confirmation of the death sentence under section 374, Cr. P. C., will be disposed of by this order.

2. The background of the events culminating in this tragedy may briefly be stated The appellant and the deceased had married two real sisters. P. W. 13, Mst. Ashraf Sultana, was married to the appellant some four years before the occurrence and borne him a son and a daughter. He was at first employed in the M. E. S., but having lost his job, had allegedly turned a parasite on his wife. He had been forcing her to sell her ornaments to make both ends meet. When this source was exhausted he started coaxing her to sell her house in Lahore which she bad got from an uncle, but she did not agree. Their relations became unhappy, and finally, she left the appellant's house in Peshawar to live with her sister, Mst. Rubaba (P. W. 14), and her husband, the deceased in her house at Lahore, also leaving the children with him. The appellant brought a suit for restitution of conjugal rights (Suit No. 513 instituted on the 11th of December 1959), against his wife in the Court of the Sub-Judge, Peshawar, also impleading the deceased and his wife, to restrain them from preventing her to live with him. It appears that this case was fixed for hearing just a day before the murder of the deceased, i.e., on the 6th of June 1961, and the deceased had come from Lahore to attend to the case. Mst. Ashraf Sultana had in the meanwhile moved an application for the guardianship of her children under section 25 of the Guardians and Wards Act and had been allowed their custody by the order of the Court in consequence of which the deceased had taken them to Lahore and they were living with their mother during the days of the occurrence.

3. The deceased was shot dead in front of the shop of P. W. 5, Karim Bakhsb, who did not know him P. W. 1 4, Maghfoor Shah, S. H. O. "A" Division, who was on patrol duty nearabout, learnt of the occurrence, and reaching the spot, found a large number of people collected around the dead body. P. W. Karim Bakhsh made a report to him (Exh. P. A.) which forms the first information report in the case, to the following effect :- "I was present in my shop with my servant Safdar Ali. The deceased came from the direction of the row of the shops of the cloth-merchants. When he reached immediately in front of my shop, one person of a tall stature slim body, young in age, wearing blue shirt and white shalwar, with a pair of black chaplis in his feet, carrying a pistol in his hand, reached behind the deceased, and fired three shots at him one after the other. After the firing be ran towards Muhallah Khuda Dad, chased by the people. The culprit, however, fired one more shot and entered the street of Muhallah Khuda Dad. If the culprit comes in my presence, I will be able to identify him. He had fired the shots in complete silence without uttering a word. A lot of people collected immediately after the occurrence, and some time later Abdur Rauf Khan, Chairman, and Abdur Rahman Khan, Member of the Union Council, also reached there and informed the police. I do not recognise the deceased."

4. On post-mortem examination the deceased was found to have three entrance wounds, caused by bullet shots. He had also sustained an abraded contusion, probably due to a fall. His scalp was injured with the fracture of the right parietal bone and the left side occipital bone. The right pleura and the lung were also injured and so were the right cerebral hemisphere and the cerebellum. A bullet cover was recovered from the posterior cranial fossa and one bullet was recovered from the top of the right shoulder. He had died instantaneously due to shock and bleeding as a result of the firearm injuries.

5. P. W. 3, Khan Faqir Muhammad Khan, D. S. P. Peshawar City, had also reached ti.e spot. He set out on chase of the culprit, and learning that he had entered Muhallah Khuda Dad, be surrounded it with a police party, and arrested the accused from the house of one Wazir Muhammad. At 11-45 a.m., on the following day (8-6-161), the appellant was produced before P. W. 1, S. Hizbullah Khan, City Magistrate, Peshawar, for the recording of his confession, in which to a question as to how he bad murdered Mumtaz Ali, he gave the following account :- "The wife of the deceased is my sister-in-law (the sister of my wife). About one and a half years ago, my wife left me and is living with her sister in the house of the deceased. About one and a half month back, the guardianship of my two children was given to their mother under the order of the Sub-Judge, Peshawar. I have now filed a suit for the restitution of conjugal rights in a Civil Court. The deceased whenever he came to Peshawar would smile at me tauntingly and used to say that he would make my daughter an actress and my wife would be made a dancer. On the day of occurrence, i.e., yesterday, be came to my shop twice and repeated the same words and added that he would drag out my mother and sister to the Courts. I picked up my unlicensed pistol which was in my shop and followed him, and near the chowk bazazan, shot him dead and then ran away. i was arrested in Mohallah Khuda Dad in a house in which I had entered. When women raised alarm I threw away the pistol in a drain." In his statement at the trial, he resiled from this confession, and said that he had been coerced by the police to make it. In fact he charged the police for having beaten him to make the statement after they had made him smoke a Gold Flake Cigarette, contain ing some stuff which he did not know. But while disowing the confession Exh. P. X., on the grounds contained in his answer, he also stated that it was correct,

6. P. W. Karim Bakhsh, is the main eye-witness in the case. He repeated his account in Court as given in the first information report and verified the fact that he had correctly identified the appel lant at the identification parade held under the supervision of the City Magistrate (P. W. 1) on the 8th of June 1961. The parade was held in the Court room of the City Magistrate, where a large number of persons were paraded before him along with the appellant.

7. One other witness, P. W. 10, Azim Khan, appeared at the trial as an eye-witness of the occurrence. His testimony has been rejected by the trial Court for very cogent reasons. On his own showing, he was a chance witness and his presence at the spot is certainly doubtful from the circumstance that although he knew the deceased and the appellant intimately and claimed to have seen the occurrence, the other people gathered at the spot remained absolutely ignorant about the identity of the deceased and the appellant, which should have been disclosed to them by this witness at once had he been there. We have, however, no hesita tion in affirming the view of the trial Judge that P. W. Karim Bakhsh is a witness of truth. He is completely independent and he gave an account which is untarnished by exaggerations, and which finds corroboration from the circumstances of the occurrence. His evidence was challenged by the learned counsel for the appellant before us on the ground that his identification of the appellant is not satisfactory and he had had the opportunity to see him before identifying him at the parade. This last argument was built an two apparent contradictions in the statement of this witness as compared with those of the others. He had stated before the committing Magistrate that he had identified the appellant in jail which he contradicted at the trial by stating there in consonance with the statements of the others, who deposed to the same fact, that the identification parade was held in the Court-room. We think that the statement as recorded by the committing Magistrate of this witness on this point was due to an inadvertant mistake, either on the part of the witness, or of the committing Magistrate, or of the Typing Clerk. We see no reason whatsover why should the witness have substituted "jail" for the "Court-room" in his committing Magistrate's statement and then reverted at the trial to the Court-room, where in fact the identification parade was held, as deposed by the Magistrate, P. W. Hizbullah Khan, under whose supervision the parade was conducted. The other contradiction relates to the place where the witness happened to be before he was made to identify the appellant. He stated that he was sitting outside in the ground and he was called from there to the Court-room for identification. The Magistrate, Mr. Hizbullah Khan, stated that the witness was reported to be sitting in the room of his Steno. We are not prone to give any importance to this contradiction, because we find that even in his report to the police immediately after the occurrence, Karim Bakhsh had given a sufficient description of the culprit, including the clothes that he was wearing, and his claim there that he would be able to identify him if he was brought i n front of him, clearly showed that he had the opportunity of having a good view of him, Having an absolutely unbiased attitude to tie accused we do not consider that the witness bad any reason to make false assertions about the identity of the appellant.

8. On the matter of ocular evidence in the case, the learned counsel for the appellant tried to make capital of the fact that a second eye witness, Sardar Ali, mentioned in the first informa tion report, has been withheld by the prosecution. He drew our attention to a Standing Order No. 39, from the Judicial Commissioner s Court, enjoining on the prosecution to produce all persons mentioned as eye-witnesses in the first report, especially in a murder case. Several rulings were also quoted pressing on our attention the obligation on the part of the prosecution to bring on the record all evidence available in a murder case, whether against or for the prosecution. There can be no dispute with the proposition that the prosecution should not purposely withhold the evidence of any material witness merely because if produced, the prosecution case would be damaged. The Public Prosecutors must perform their duty fairly and fearlessly in this mattfr. All eye-witnesses should be pro duced in such cases as prosecution witnesses unless in regard to any of them the Prosecutor feels that he has purposely turned hostile, in which case, he can be abandoned for reasons stated, but in spite of it, his presence should be made available in Court for such use as the Court or the defence may make of him. While stating this as a general rule to be followed, it must, however, be emphasized that the prosecution is under no obligation to produce those persons as prosecution witnesses whom it considers to be false or unnecessary ; nor can any adverse inference be drawn against the prosecution for dropping such witnesses. If a material prosecution witness is purposely withheld by the prosecution from giving evidence without disclosing any reason, the presumption is that his evidence, if recorded, would have gone against the prosecution, but the presumption cannot be extended to the point that his testimony would necessarily have supported the defence version. If a witness is not produced by the prose cution, it is open to the defence to make a request to the Court to examine him as a Court-witness, or alternatively, to produce him in defence. If no such action is taken, the initial inference that is to be drawn adversely to the prosecution may be neutralized. In the present case, while Safdar Ali's presence in the shop was mentioned by P. W. Karim Bakhsh in the first report, he did not say in so many words that he was also an eye-witness, making it obligatory on the prosecution to produce him as such. He was dropped from the outset and not even cited in the challan. 1f the defence considered that his evidence could be of help to it in contradicting the prosecution case, it should have made an effort to get his evidence recorded. But the indifference of the defence in this behalf all through the pro ceedings only reveals that the defence also did not place any confidence on the witness for the advancement of their case. We have also, for the same reason, turned down the request of the learned counsel to summon the witness in this Court to record his evidence.

9. The confession of the accused Exh. P. X. in spite of the resilement at the trial, is another item of valuable evidence against him. Conviction of an accused person can be based on his retracted confession if it is found to be voluntary and true and is not hit by any of the factors that might legally vitiate it although as a rule of prudence, the Courts do also look for its corroboration. In the present case, we do not find any circumstance to hold the confession otherwise than as voluntary and true. The learned counsel for the appellant submitted that there is no indication on the record, besides the printed questions on the printed form of the confession Exh. P. X. that the Magistrate before recording It, had satisfied himself that it was voluntary. The duty cast on a Magistrate, while recording a confession as provided in section 164, Cr. P. C. is that he should tell the accused before recording it that he was not bound to make it, and that if he makes one, it will be used in evidence against him. This was clearly done in the present case by the questions that were put to the appellant. The further require ment is that before engaging himself in the task of recording the confession after telling the accused about his free choice in the matter, and the result of his proposed action in making a confession he should have reason to believe upon questioning the accused that the confession was being voluntarily made by him. The law does not enjoin that the Magistrate should keep a written record of the steps that he has taken in order to reach that reasonable belief. Questions may be put verbally by the Magistrate for his satisfaction or he may choose to record them. It is of course helpful to have a record of the matter in order to enable the Courts that may have to deal with that confession to come to their own finding as to the circumstances in which the accused was brought before the Magistrate and how he was dealt with before and at the time of the recording of his con fessional statement. But if an accused person challenges a confession as involuntary, the onus is on him to displace the presumption that arises under section 80 of the Evidence Act that the confession was duly recorded. This may be done by cross-examining the Magistrate who recorded the confession on the points sought to be established to vitiate it as involuntary and untrue. Where the statement of a Magistrate is allowed to pass unchallenged, as, in the present case, it is not possible to presume in favour of an accused person on mere conjectures, that the confessional statement was recorded without the Magistrate having taken care to take the steps in coming to a reasonable belief that the accused person was making the confession on his own volition without any outside pressure, and that what he had stated was, not his own free description of his guilt. In the case in hand, the retracted confession rings true, even intrinsically. It contains the Immediate motive for the appellant's action in murdering the deceased which could only have come out of his own mouth as he alone had the knowledge about it. The facts therein that the deceased had come to his shop and taunted him twice and the other facts relating to the hostility between him and his wife, could only have been stated by him, and not by anyone else unaware about the incidents. We find this retracted confession a most damning and weighty evidence for the appellant's conviction, and as already stated, we have the independent and reliable evidence of Karim Bakhsh, which fully corroborates it. We consider that the guilt of the appellant was brought home to him beyond any reasonable doubt, and his conviction was rightly recorded under section 302, P. P. C.

10. A reference may be made to the defence evidence led by the appellant consisting of the statements of Faiz Ali Akbar and Bunyad Hussain (P. Ws. 1 and 2) respectively. The learned counsel for the appellant dwelt on the evidence of the former only, ignoring the latter, who was obviously an interested witness related to the appellant. As regards Faiz Ali Akbar, he is certainly a disinterested witness whose shop is situated in close vicinity of the place of occurrence and during the investigation of the case he was also made to identify the culprit in an identification parade of the appellant, held in jail where he had failed to identify him. The learned counsel for the appellant wanted us to draw the conclusion from Faiz Ali Akbar's inability to identify the appellant as the culprit who had been seen by the witness firing at the deceased, that the culprit was some person other than the appellant. It is not possible to accept this contention. It is significant to note that D. W. Faiz Ali Akbar gave the particulars of the culprit tallying exactly with those given by P. W. Karim Bakhsh in the first information report. His failure to identify the appellant as the assailant of the deceased at the identification parade and at the trial may be due to the com parative paucity of his observing faculty or a lack of confidence in his observation. We cannot accept this lacuna in his evidence as a factor to raise a doubt about the guilt of the appellant.

11. Finally, there is the question of sentence awarded to the appellant, as the learned counsel had made a plea before us for its commutation. We see no justification whatsoever to commute ft. The appellant was guilty of a heartless crime in murdering the deceased by shooting him thrice, and there is no mitigating circumstance whatsoever in the case to justify the award of the E lesser penalty. The appellant's differences with his wife were the result of his own behaviour, and if the deceased was figuring as a party in the litigation against the appellant. It was due to the fact that be had himself impleaded him as a party in those proceedings. There is no indication on the record that the deceased was in any way responsible for the separation or the strained relations between the appellant and his wife. Even if we were to accept the account contained in the appellant's confession, which is doubtful, that the deceased had taunted the appellant, he was not provoked immediately and did not take any action on the spur of the moment. He followed him to the "Chowk Bazazan", quite a distance from his own shop, and murdered him brutally. We dismiss his appeal and confirm the sentence of death. R. B. A. Appeal dismissed.