1992 P Cr (PLP)

JUSTICE ABDUL SHAKURUL SALAM, (CHAIRMAN).

This is an appeal by Shehbaz Ahmad son of Mushtaq Ahmad against the judgment of the learned Special Court for Speedy Trial No.1, Lahore dated 18-12-1991.

1. Relevant facts are that Akbar Ali, S.I. (P.W.14) having learnt about the murder reached the spot on 18-10-1991 where he recorded the statement of Amjad Khan complainant (Exh.P.F.) at 7-00 a.m. The latter said that his son Ejaz Ahmad Khan aged 10/11 years had gone to see V.C.R. at 7-30 p.m. the previous evening but did not return till late in the night. Search was made and relatives contacted but to no effect. At about 6-00 a.m. in the morning, Sadiq Hammamwala told him that the dead body of Ejaz Ahmad his son was lying in the plot on the back side of the house of Muhammad Anwar. He reached the spot and saw that on the dead body of the minor Ejaz Ahmad were deep cuts in the abdomen. Blood had come out and so the intestines. Meanwhile, Khalid Mahmood, Khushhal Khan (not produced), "Muhammad Anwar Khan and Zameer Ahmad Siddiqui (P.Ws.10, 11 and 12) and others resident of the Mohallah came on the spot. Muhammad Anwar Khan informed that there were stains of blood on his roof coming from the roof of Shehbaz Ahmad (the, appellant). Zamir Ahmad Siddiqui told that previous night about 8-00 p.m. he had seen the minor Ejaz Ahmad and Shehbaz Ahmad talking in front of the house of the latter in the street. He (complainant) alongwith his companions entered in the house of Shehbaz Ahmad and went up the roof. On the back side room was Shehbaz Ahmad who on enquiry confessing the guilt said that last night at about 9-00 p.m. after committing sodomy on Ejaz Ahmad to cover up the crime in madness he inflicted repeated Khanjar blows and killed him. The dead body after crossing over the roof of Muhammad Anwar Khan was thrown on the back side plot. After sending the statement for recording F.I.R. Akbar All, S.I. P.W.14 inspected the spot, prepared inquest report and sent the dead body for post-mortem examination. He recovered blood stains from the roof vide memo. Exh.P.L. and sealed the same. He also prepared rough site plan of the spot Exh.P.R. and gave his notes thereon. He arrested the accused on 19-10-1991. His shirt and Shalwar P.5 and P.6 were taken off his body and secured vide memo. Exh.P.M. After post-mortem examination,the constables produced shirt and Shalwar (P.1 and P.2), a sealed envelope containing .swabs P.3 and a sealed Dabba (P.4) which were taken into possession by the S.I. vide memo. Exh.P.G. The officer obtained physical remand of the accused from the Court on 20-10-1991 and interrogated him. He disclosed about the weapon of the offence and on 22-10-1991 from his house got recovered knife (P.7) from an almirah which was secured vide memo. Exh.P.N. the Sub-Inspector moved an application ExhY.H. for recording confessional statement of the accused on 23-10-1991. The Assistant Commissioner passed the order Exh.P.H./1 directing the Illaqa Magistrate to record the statement. He produced the accused in the Court of the Illaqa Magistrate on 24th but the Magistrate was not present. He got the accused medically examined and produced him again in the Court of the Illaqa Magistrate on 26-10-1991. His statement xh.P.J. was got recorded from Mr. Muhammad Saleem Hussain, Magistrate P.W.7 who proved his certificate thereon Exh.P.J./1 and his order Exh.P.H./2 sending the accused to judicial lock-up. After the investigation he challaned the accused/appellant.

2. At the trial, Dr. Usman Mahmood Mir appeared as P.W.1 who had performed post-mortem examination on the dead body of Ejaz Ahmad on 18-10-1991 at 1-lift p.m. He stated that it was the dead body of a young boy of 10/11 years with rigor mortis present I11 over and post-mortem staining on the back. It was clad in grey Shalwar Kameez smeared with blood. No tear was detected in the shirt. Shalwar showed no seminal stains. It was pale in complexion with eyes and mouth closed. Marks of violence and stab wounds were apparent on the dead body. Omentum and intestines were coming out larger abdominal stab wound. He observed the following injuries on the dead body. (1) Isolated bruise 1 x 1 c.m. right thigh mid-level lateral aspect. (2) An abrasion 3 x 1 c.m. on bridge of nose going to left lateral aspect. (3) Multiple grazes on lower aspect of face. (4) Grazes and bruises on both upper eye-lids. (5) Bruise with nail marks 2 x 2 c.m. in mid-line front of the neck going to right side. (6) Multiple stab wounds on front of abdomen. (a) Elleptical 3 x 1 c.m. going from mid-line to left 3 c.m. above umblicus. (b) Stab wound 1 x 0.5 c.m. going to left side; and upwards 1 c.m. above umblicus. (c) Stab wound 1 x 0.5 c.m. at the level of umblicus 3 c.m. to the left of mid-line. (d) Wounds 1 x 0.5 c.m., 2 c.m. below and 3 c.m. to left of umblicus. On dissection small and large intestines were found perforated, abdominal wall was injured, thorasic cavity was healthy with one litre of blood. Stomach was full having two ounces of digested or semi-digested food. Bladder was empty. The doctor found no seminal stains or bruising in anal area. A tear was detected on the anterior anal wall near the mid-line on digital examination. He secured three anal swabs for detection of semen. They were dried, sealed and sent to the Chemical Examiner in police custody. In his opinion the injuries were ante-mortem. Injuries 1 to 5 were suggestive of sadistic frenzy. The anal examination indicated sodomy. Death in his opinion was due to shock and haemorrhage. The time between the injuries and death was from a few mintues to one hour and between death and post-mortem examination about 12 to 24 hours. He proved his report Exh.P.A. and diagrams of the injuries Exh.PAs./1 and

2. He had also received the Chemical Examiner's report. Exh.P.B. It was positive. 1n cross-examination it was elucidated from the doctor that there were some signs on both forearms and a few on the chest of the accused, However, the doctor could not say whether those were the result of homicidal behaviour. He also replied that in Schizophrenia patient loses his ability to distinguish clearly between fantasy and reality. His ability to think and his emotional responses become confused and when the disease progresses it leads to, delusions, hallucinations and odd mannerisms develop. The patient begins to withdraw from reality.

2. Dr. Ehsan Ellahi P.W.2 medically examined the appellant on 24-10-1991 at i1-30 a.m. He deposed that he (appellant) was aged about 27/28 years. His central nervous system did not show any abnormality. He had no history of spinal injury or deblitating disease like T.B., Syphlis etc. nor Hernia. His external genitalia were normally developed with secondary sexual characters and sensation intact. In his opinion the external examination did not suggest that he was incapable of performing the sexual act. He proved his medico-legal report Exh.P.D. In cross-examination she told that in the identification marks of the accused he had noted multiple scars, in front of the lower side of forearms and a scar on the outer aspect of left ankle joint. He also stated that such type of injuries may be got inflicted by an emotional type Mover or may be the result of some homicidal behaviour.

3. Complainant Ajaz Khan (P.W.9) reiterated the contents of his statement Exh.P.F. and was supported by Anwar Khan P.W.10, Zameer Ahmad Siddiqui P.W.11 and Khalid Mahmood P.W.12.

4. In his statement the appellant gave his age 27/28 years. He admitted that his house was adjacent to the house of Anwar Khan, P.W. He also accepted that shirt and Shalwar P.5 and P.6 were his, which were semen stained as per the Chemical Examiner's: report but denied that these were also bloodstained. According to him, he was arrested by the police from his house on 18-10-1991, When he was asked `why this case against you', he replied, do not know He produced Dr. Ijaz Raider, Dr. Zahid Bajwa and Dr. Muhammad Shoaib (D.Ws.1, 2 and 3). Dr. Ijaz Haider proved Exh.D.E. an outdoor ticket of Mental Hospital dated 23-6-1988 relating to one Shehbaz Ahmad son of Mushtaq Ahmad, resident of Lahore aged 26 years. He further stated that the said Shehbaz was medically examined by Dr. Muhammad Shoaib who diagnosed Valium drug addiction. Dr. Muhammad Shoaib (D.W.3) also stated about the Outdoor slip (Exh.D.E.) and his own writing on its back Exh D./1. He told that in Exh.D./1 the behaviour of the patient was noted as homicidal but this was recorded as brief history given by the patient himself and his relatives who had brought him. Dr. Zahid Bajwa (D.W.2) proved Outdoor ticket of his hospital Exh.D.F. dated 1-11-1987 relating to one Shehbaz Ahmad with his yearly No.4147. He had referred the said Shehbaz the patient for assessment of personality, cause of addiction and psychotherapy'. In cross-examination he informed that the disease was recorded as Banzodiazepine dependence. Which was addiction to a. particular type of drug like Valium etc. and these are actually tranquillisers. This sort of addiction did not indicate any ailment.

5. In his statement on oath the appellant deposed that he had not committed the murder of Ejaz Ahmad. He stated that he did not know him and so there was no question of his having talked with him in the evening of 17-10-1991 in front of his house. On 18-10-1991, he was on the ground floor of his house when some people entered there and went up-the roof-of their house. It was learnt that a boy was murdered and his dead body was lying in a plot. He came out of the house where the police also reached and hauled him up on suspicion. He said that the police took him to the police station where he was threatened and asked to make a particular kind of statement. He was produced, according to him, before a Magistrate but did not make any statement nor the same was read over to him or signed/thumb-marked by him: He disowned the recovery of any weapon at his instance. He also stated I cannot say how the bloodstains were there on the roof of the house of Muhammad Anwar P.W . He further said that some times he used to have fits during which he did not know what he was doing. It was during such fits that he injured his forearms and chest. He claimed to have been visiting the doctor in this connection in the years 1987 and 1988. In cross-examination he admitted that he was produced before the Magistrate on 26-10-1991. However, he asserted that the Magistrate had not asked him that he was to make a statement in the Court of his own accord. He denied that the Magistrate had told him that he was to make the statement voluntarily without any fear or threat or influence or pressure or that he was given half an hour to think over the matter and thereafter his statement was recorded. He said that never any case had been registered against him for injuring anybody except with regard to the present occurrence. He also said that he was addicted to sleeping pills. He admitted the suggestion as correct that the doctors had diagnosed that he was addicted to pills and used to feel intoxicated.

6. The prosecution relied on the following evidence. (i) Last seen (Ajaz Khan complainant and Zameer Ahmad Siddiqui (P.Ws.9 and 11). (ii) Recovery of dead body of the deceased from the plot on the back of the house of Anwar Khan, (Ajaz Khan, Anwar Khan, Zamir Ahmad Siddiqui, Khalid Mahmood P.Ws.9 to 12). (iii) Bloodstains on the roof of the house of the accused from his room up to the roof of his neighbour Anwar Khan P.W. on the intervening wall and then down the wall beyond which in the open plot the dead body was lying. (Ajaz Khan, Anwar Khan, Zameer Ahmad Siddiqui and Khalid Mahmood (PWs.9, 10, 11 and 12) and Akbar Ali S.I. the Investigator P.W.14. (iv) Extra-judicial confession made by the accused. (Ajaz Khan, Anwar Khan, Zameer Ahmad Siddiqui and Khalid Mahmood P.Ws.9, 10, 11 and 12.) (v) Judicial confession. (Mr. Muhammad Saleem Hussain, M.I.C. P.W.7 and Akbar All, S.I., the invcstigator P.W.14). (vi) Recovery of semen and blood-stained shirt and Shalwar of the accused. (Khalid Mahmood, P.W.12 and Akbar Ali S.I., the Investigator P.W.14). (vii) Medical evidence provided by Dr. Usman Mahmud Mir, P.W.1 and Dr. Ihsan Ellahi P.W.2.

7. The learned trial Court did not accept the extra-judicial confession. But relying on the other evidence found the appellant guilty and convicted him under section 377, P.P.C. And sentenced him to imprisonment for life and a fine of Rs.2,000 or in default thereof one year's R.I. He also convicted the appellant under section 302, P.P.C. and sentenced him to death for Qatl-i .Amd. This is vide order, dated 18-12-1991. Hence this appeal.

8. Learned counsel for the appellant has taken us through the evidence and submitted that the extra-judicial confession has rightly been excluded by the learned trial Court, as the same is said to have been made on 18-10-1991, whereas the appellant was arrested for the statement of the Investigating Officer S.1. Akbar Ali P.W.14 on 19-10-1991. Judicial confession is of no value because it does not bear the signature of the accused/appellant. He also submitted that the shirt of the deceased did not have corresponding cuts per the evidence of the doctor performing post-mortem examination.

9. Learned counsel for the State has supported the judgment under appeal.

10. We have perused the evidence on record and heard the learned counsel for the parties: Taking the last contention first it is of no significance. The deceased was injured. Shirt may not be on the body at the relevant time. As regards the second contention that judicial confession cannot be taken into account as it does not carry the signature or thumb-impression of the maker, of the appellant as required under section 164, Cr.P.C. the learned counsel is on stronger wicket. The learned counsel for the State submitted that the omission is not fatal as the Magistrate had appeared in Court and stated that the appellant had made the confessional statement before him and no objection was taken regarding the omission of the signature before the trial Court. He referred to section 533, Cr.P.C. He relied on the commentary on Cr.P.C. by Mitra, 3rd Edition and read out para 1040 at pages 1205, 1205. We are afraid the submission is without force. Section 533, Cr.P.C. closes with the proviso that the statement shall be admitted if the error has not injured the-accused as to his defence on the merits. In the case in hand, not only the appellant had A denied making the statement but he is clearly injured in his defence on merits as has been relied upon by the learned trial Court. Keeping in view the, prevailing circumstances relying on an unsigned confessional statement for conviction would be most hazardous. Therefore, we would exclude this piece of evidence. However, we are not satisfied with the exclusion of the extra-.judicial confession deposed by four witnesses. We have gone through their evidence. They are independent, ordinary citizens who had no interest in the deceased or his family nor any iliwill against the accused. The first two witnesses P.Ws.9 and 10 were not even cross-examined on, the point. Third one P.W.11 reiterated that the appellant had made the confession. The last and fourth P.W.12 denied that the accused had not made the confession. We have gone through the evidence of these four witnesses. We find them independent and truthful. The contention that if the extra-judicial confession had been made on 18-10-1991 the appellant would not have been allowed to go and slip, especially when the Sub-Inspector had reached the spot soon and he was arrested only on 19-10-1991 per the statement of the Sub-Inspector is not destructive of the depositions. His going away from the scene or non-arrest on the same day does not ipso facto show that the witnesses had deposed falsely. In tact, appellant himself had said in Court that he was arrested on 18-10-1991. The officer may have. shown the arrest on 19-10-1991. As stated above, the witnesses had no interest in the deceased or his family nor any illwill towards the appellant and they are ordinary respectable people. Therefore, we are of the view that their testimony deserves acceptance. In addition,' the other circumstantial evidence brought on record leaves no doubt that the finding of the learned trial Court that the appellant was guilty is well based. Having given anxious consideration to the facts of the case, we are of the view that the appeal is without force. It is, therefore, dismissed.

11. However, as regards the sentence of death under section 302, P.P.C. for Qatl-i-Amd, the learned trial Court did not punish the appellant with death as Qisas probably for the reason that the proof as required under section 304, P.P.C. was not adduced. Therefore, the appellant was awarded the sentence of death as Tazir. But in view of the mental condition of the appellant as deposed to by the doctor and immediate cause of death and the circumstances in which it had come about, having neither been proved nor clear, we are of the view C that alternate sentence of imprisonment for life and fine of Rs.5,000 with payment of Rs.50,000 as compensation to the heirs of the deceased will meet the ends of justice. It is so ordered. In case of default in payment of fine, the appellant shall suffer further 2 years' R.I. and for non-payment of compensation 6 months' S.I. Substantive sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. shall be allowed to the appellant.

12. Subject to the aforesaid modification, the appeal stands dismissed. N.H.Q./28/SAC Order accordingly.