P L D 1976 Peshawar 135 (PLP)

SHAH NAWAZ KHAN, J.‑Muhammad Karim son of Fazal Karim, caste Hassan Khel, aged about 25 years resident of Ziarat Killi, Illaqa Abazai, Tehsil Charsadda, was tried in the Court of Additional Sessions Judge, Peshawar, on charges under section 302/34, P. P. C. and section 13 of the West Pakistan Arms Ordinance, 1965. The allegations against him are that he alongwith his co-accused Tor Gut and Lai Zarif (absconders) and in furtherance of their common intention, committed the murder of Mst. Jamala deceased on 17‑2‑1973, by cutting her throat with a knife, in the limits of Habib Rasul Killi. At the conclusion of the trial accused Muhammad Karim was found guilty of offence punishable under section 302/34, P. P. C. He was convicted accordingly and was sentenced to undergo life imprisonment by order-dated 21‑8‑1974. He was, however, acquitted of the charge under section 13, firms ordinance.

2. Convict Muhammad Karim feeling aggrieved has come up on appeal to this Court, wherein he has challenged his conviction and sentence and has assailed the finding, hence judgment of the learned trial Judge on various grounds. In particular he has disputed the jurisdiction of the learned trial Judge by alleging that the occurrence took place in the tribal territory, hence beyond the limits of the settled area. Further that the learned trial Judge erred in basing his finding on the retracted confession of the accused and tile other circumstantial evidence produced by the prosecution, which lacked consistency and is full of material contradictions.

3. The police moved into action when Muhammad Karim accused lodged the F. I. R. Exh. P. A., in Police Station ‑1"angi, District Peshawar on 18‑2‑1973, at about 8 a.m., whereupon a case was registered at Ilat No. 35 dated 18‑2‑1973. In his report, Muhammad Karim (accused‑appellant) in. formed the police that on the preceding day, he and Mst. Jamala deceased had gone to the house of Mst. Zaitoon (sister of the deceased) in village Haricband and that later after taking tea in the afternoon, they left her (Mst. Zaitoon's) house with a view to go to village Spin Khara but when they reached the lands of that village at about sun‑set time, four armed persons came out of a ditch (kanda). Two persons caught hold of Mst. Jamala (deceased) and the other two caught him. Thereafter those two persons made Mst. Jamala deceased fall on the ground and slaughtered her with a knife. That after killing her, all the said four persons went away from the spot and then he came to Mst. Jamala, but she was dead. He further stated in his said report that he did not know abut the enmity of the deceased with any one.

4. After registering a case in the said Police Station P. W. Shahbaz Khan then S. H. O. with his party, left for the spot which is noted in the F. I. R. Exh. P. A. to be at a distance of 17 miles from the Police Station, reaching the scene of occurrence, at about 10 a. m. on the same date. Mst. Zaitoon (P. W. 8) who is the sister of the deceased, on being informed, the same morning, by Islam Shah a relative of Tor Gul absconder about the murder of the deceased, reached the spot at about 11‑30 a. m. She charged Muhammad Karim accused and the two absconders for murdering the deceased before the Investigating Officer whereafter Muhammad Karim accused was taken into custody by the said Sub‑Inspector and then the investigation took a different turn.

5. Muhammad Karim accused in custody then led the police party to the place shown at point No. 5 in the site plan Exh. P. B., where from a covered bole, the blood‑stained warm cap Exh. P. 5, was recovered on the pointing of the accused. Later in the course of investigation, accused Muhammad Karim in custody led the police party, which then also included P. W. Nur Muhammad Khan, D. S. P., Charsadda, on 20‑2‑1973, to a place shown as point No. 6 in the site plan Exh. P. B. where from on the pointing of the accused, knife Exh. P. 6 stated to be the crime weapon, which also appeared to be blood‑stained, was recovered from under the sand under which it was lying bidden.

6. Lady doctor Nusrat Ara, Medical Officer, Civil Hospital, Tangi (P. W. 11) performed post‑mortem examination, on the dead body of Mst. Jamala deceased on 18‑2‑1973 at 1 p. m. op the spot, because there were no arrangements for the transportation of the dead body to the mortuary, on account of disturbances between the Kissan-‑Mazdoor party and the‑landlords. She found on the dead body of the deceased a curved incised wound 4 " long and 3" deep from right sterno mostoid muscle to the left sterno mostoid " injured (cut) at the level of 2' below the right ear and 2 below the left ear. Trachea oesophagus, both carotid arteries; veins and nerve plexus were cut. It was an incised wound caused by a sharp weapon. She also found signs of bruises most probably caused by dragging, on the back of the deceased at the level of right and left scapulae, covering the area of 7 inches and one mark on the back, in the centre line. On internal examination, the lady doctor found the larynx and trachea cut, blood vessels and carotid arteries and veins were cut at the level of 3rd cervical vertebra. Oesophagus was found cut at the level of 3rd cervical vertebra. Stomach of the deceased was empty and so were the small intestines while large intestines were full of bowels. Her bladder contained little urine. In the opinion of the said lady doctor, death of the deceased, which was instantaneous had occurred due to cutting of trachea, oesophagus and carotid arteries on both sides. Further that injury No. 2 was caused by dragging. The time between death and post‑mortem examination has been recorded in P. M. report to be more than 12 hours. She also proved the P. M. report Exh. P. Z.

7. Statements of Khan Muhammad F. C. (P. W. 1), Fazal Rehman F. C. (P. W. 2) and Mian Gul F. C. (P. W. 3) are more or less formal. Khalilur Rehman S. I. (P. W. 4) was Additional S. H. O. P. S. Tangi, during the days of occurrence. He had assisted the S. H. O. in the investigation of this case. He is one of the marginal witnesses of the memo Exh. P. H. through which the blood‑stained garments of the deceased Exh. P. 1 to Exh. P. 4, were taken into possession by the I. O. Nur Muhammad Khan formerly D. S. P., Charsadda (P. W. 5) had partially investigated this case. He had stated that on 20‑2‑1973, Muhammad Karim accused in custody led him and his party to a place at distance of about 80 paces from the scene of occurrence and there he i.e. the accused pointed to a place wherefrom the knife Exh. P. 6 hidden under the sand was recovered, after the accused removed a stone lying over it, in the presence of P. Ws. Hidayatur Rehman and Sslamat Shah, which was then taken into possession and was packed in a sealed parcel vide memo, Exh. P. K/1. Salamat Shah (P. W. 6) and Hidayatur Rehman (P. W. 7) are marginal witnesses of the recovery memo Exh. P. K/c. Both of them have fully supported P. W. Nur Muhammad Khan ex‑D. S P., Charsadda in pith and substance, on that score. Hidayatur (P. W. 7) who is the driver of a private car and who had taken P. W. Lady doctor Nusrat Ara to the spot, has also stated that in his presence, the Investigating Officer was led by the accused in custody to a place where on the pointing of the accused, two blood stained stones and one hidden blood‑stained warm cap were found and picked up which wire then taken into possession vide recovery memo. Exh. P. G. of which he is also a marginal witness. He has further stated that the I. O. has also taken into possession in his presence some blood‑stained stones and pebbles from the spot, which were packed in a sealed parcel vide recovery memo Exh. P. E. to which he is a marginal witness.

8. Mst. Zaitoon (P. W. 8) who is the sister of Mst. Jamala deceased, has stated that on the day of occurrence, at about 2 p. m. the deceased alongwith Muhammad Karim accused came to her house and that after sometime, Tor Gul accused also came to her house. That they all took tea in her house and that later Muhammad Karim accused and Tor Gal absconder left her house but after sometime Muhammad Karim accused returned and then be, accompanied by Mst. Jamala deceased left her house for Spin Khara. She has further stated that she was informed next morning by a relative of Tor Gul absconder that Mst. Jamala had been murdered. She then left for the spot. Motive for the crime as stated by her, is that the deceased had saved about Rs. 4,000/5,000 out of her wages and emoluments, which she had kept with Lai Zarif absconder who was her neighbour, for safe custody. She has further stated that Tor Gul absconder and Muhammad Karim accused who is the nephew of Lai Zarif absconder used to reside with the latter in his house, during the days of occurrence. She further said that the deceased had no enmity with any one anti that she had been murdered for the sake of the said money.

9. Ahmad Din Khan E. A. C. and Magistrate 1st Class (P. W. 9) bas stated that on 24-2‑1973, accused Muhammad Karim was produced before him in custody by the police with a request for recording his confessional statement under section 164, Cr. P. C. He has further stated that after observing all legal formalities, pertaining to the recording of a statement of an accused person during investigation, in a criminal case under section 164, Cr. P. C., he correctly recorded the confessional statement of Muhammad Karim accused vide confessional memo Exh. P. Z/1. Shah Baz Khan S. I. (P. W. 10) who initiated investigation in this case and who is the scribe ox the F. I. R. Exh. P. A. has stated that after recording the statement of Mst. Zaitoon sister of the deceased who appeared before him on the spot on 18‑2‑1973, he arrested Muhammad Karim accused, who later while in custody led him and his party to a place shown in the site plan Exh. P. B. as point No. 5 wherefrom the accused took out from a hole, the warm cap Exh. P. 5, which was blood‑stained, which was then taken into possession vide memo. Exh. P. G. in the presence of the marginal witnesses. Perusal of Exh. P. G. which is dated 18‑2‑1973 also shows that the aforementioned cap contained tooth biting marks. This witness bad received the blood‑stained garments of the deceased Exh. P. 1 to Exh. P. 4 from the lady doctor through P. W. Mian Gul F. C. on the spot, which be took into possession and parked the same in a scaled parcel vide memo. Exh. P. H. The witness has further stated that he had correctly prepared the site plan Exh. P. B. with all the notes given therein.

10. Muhammad Karim accused in his statement before the trial Court denied his involvement in the crime. He also denied having led the police or having pointed the places wherefrom the cap Exh. P. 5 or knife Exh. P. 6 were respectively recovered and added that:‑ "I had not pointed out the place from where the alleged knife was recovered. Moreover. I was tortured by the police and the police went to the extent by removing my clothes and making me naked." With regard to his confessional statement Exh. P. Z/1, recorded by the Magistrate on 24‑1‑1973, the accused made the following statement, at the trial:

"I was persuaded and at the same time tortured by the police to make a confession and in order to save myself from more torture, I made the confessional statement Exh. P. Z/1, under duress. I was taken to the Court by the Police 3/4 times and I was compelled by the Police to make the confessional statement." The accused in his statement at the trial admitted the correctness of his statement-dated 31‑5‑1974, which had been recorded by the committing Magistrate. In his said statement the accused had altogether denied having made a confession before Ahmad Din Khan, Magistrate 1st Class, Charsadda. While explaining as to why the concerned prosecution witnesses have given evidence against him, the accused said that Mst. Zaitoon P. W. had charged him on suspicion only and the police concocted the story against him. Further that P. W. Hidayatur Rehman and his brothers Kachkolur Rehman and Saifur Rehman are the servants of Ibrahim Bacha, while the deceased was his Mukhtiar. Therefore, the P. Ws. and the police have involved him at the instance of Ibrahim Bacha. Earlier, in his statement before the committing Magistrate, the accused in answer to a similar question had stated that the P. Ws. had deposed against him because they are interested. He did not elaborate the inter se interest of the witnesses or their interest in the deceased. He, however, admitted to have made the report Exh. P. A. in P. S. Tangi, but denied knowledge of the fact, if the deceased had saved Re. 4,000/5,000 in cash out of her wages, or that she had kept such money with Lal Zarif absconder.

11. In his report Exh. P. A Muhammad Karim accused had told the police that he and the deceased had gone to the house of P. W. Mat. Zaitoon in the afternoon on the day of occurrence and both of them had taken tea in her house whereafter he and the deceased left for village Spin Khara. A similar statement of P. W. Mst. Zaitoon was allowed to go unchallenged and no effort worth the same was made by the defence, while she was under cross examination, to rebut her allegations that the accused was seen in the company of the deceased, immediately before the occurrence. F. I. R. Exh. P. A. is admissible as an admission, as it does not amount to a confession nor it was made in the course of investigation.

12. In his confessional statement Exh. P. Z/1, the accused made the following narration:‑ "On the day of occurrence I, accompanied by Mst. Jamala deceased started from Mst. Parai at about 10‑i l a. m. and we reached Harichand at about 2 p. m. In Harichand, we went to the house of Mst. Zaitoon wife of Nawab who is the sister of Mst. Jamala. We took rest there and while we were drinking tea, Tor Gul of Spin Khara came there. After taking tea I and Tor Gul went out of the house. Tor Gul told me to bring Jamala and that he and Lai Zarif would be sitting in the fields. He also advised me that I should not stay for the night in Harichand and to bring Jamala on the proposed way today. Therefore, at digar time I took Mst. Jamala alongwith me and started. Mst, Jamala had a lindiwal tamacha, which I had taken from her. On the way we were going slowly and Mst. Jamala was plucking Spinach (SAGH) on the way. In the evening when we reached near the scene of occurrence, Tor Gul and Lai Zarif were already sitting there and were awaiting our arrival. As they saw us, they got up and started talking, when suddenly Tor Gul caught hold of Mst. Jamala axed made her fall on the ground. My uncle Lai Zarif asked me to shut the mouth of Mst. Jamala with my cap. So I shut the mouth of Mst. Jamala with my cap. My uncle Lai Zarif then secured the hands and legs of Mst. Jamala for Gul took out a knife and slaughtered Mst. Jamala with that knife. Then her dead body was dragged from the path (RASTA) and thrown away. The knife and the cap were blood‑stained. In my presence Tor Gul buried the knife under the sand and threw the cap in a hole. Then I, Tor Gul and Lai Zarif started towards Spin Khara. On reaching Spin Khara we gave out that Mat. Jamala bad been murdered on the way by four unknown persons. From the village we brought a cot and placed the dead body of Mst. Jamala on it. Lai Zarif and Tor Gul advised me to go to the police station and lodge such false report."

13. Learned counsel for the appellant while disputing the voluntary nature of the retracted confession of the accused, strenuously urged that the accused was kept in police custody for 5 days and he was produced before the Magistrate who recorded his statement under section 164, Cr. P. C. without first remanding him to judicial custody and then summoning him to judicial lock‑up, for recording his statement under section 164, Cr. P. C. He further contended that in the application dated 19‑2‑1973, wherein request for remand of accused to police custody had been made, S. I. Shahbaz Khan (P. W.) besides mentioning other facts, has also stated that the accused would make confession. He maintained that if on 19‑2‑1973, the T. O. had reason to believe that the accused was going to make confession, then there was hardly any reason for keeping the accused in police custody and why he was not produced before the 'Magistrate on 19‑2‑1973 for recording his confessional statement. Perusal of the aforementioned application would show that the investigating Officer while making request for remand of the accused to police custody, has mentioned that the blood‑stained cap has been recovered at the instance and on the pointing of the accused and that it was hoped that some more facts connected with the murder, might come to light and that there is every possibility of the recovery of the weapon of offence at the instance and on the pointing of the accused. It may be mentioned that the blood‑stained cap Exh. P 5 was recovered from a hole on the pointing of the accused on 18‑2‑1973. The crime weapon Exh. P. 6 was recovered from a hidden place at the instance and on the pointing of the accused on 20‑2‑1973. Finally, on 24‑2‑1973 he made confession before a Magistrate. It would thus appear that the making of the confession by the accused was the result of gradual developments. ,

14. Learned counsel for the appellant further argued that the accused appellant was neither got medically examined before he was remanded to Police custody nor thereafter and before his confessional statement under section 164, Cr. p. C. was recorded. P. W. Ahmad Din Khan, E. A. C., (P. W. 9) has stated that, "as no request was made to me by any body for the medical examination of the accused ipso facto I had made no direction for the medical examination." He further stated that the accused made no complaint of any torture by the police, when he was produced before him for making confession. He has categorically stated that before he proceeded to record the confessional statement of the accused, the latter was given sufficient time for reflection and was repeatedly cautioned. He has further stated that he was fully satisfied that the accused was making a voluntary statement. The word "voluntary" used in respect of a confession, means a confession not caused by inducement, threat or promise. The accused has alleged in his statement before the trial Court that be made the confes sion under threat and on the persuastion of the police, but he had not stated so in his statement before the committing Magistrate. In a Dacca case reported as 1968 P Cr. L J 569, it was held that if an accused in his statement under section 342, Cr. P. C. makes an allegation that his confession was false and that he made the statement under assaults or on some advice given by the police etc, but be has made no such allegation before the Magistrate why recorded the confession and if that Magistrate has testified that he had given sufficient time to the accused for reflection (as in the instant case), and in spite of repeated cautions, then under the facts and circumstances of the case such confession would be considered as voluntary.

15. It is common knowledge that the Law does not require the motive for a confession to be elicited. However, in this case as stated by P. W Ahmad Din Khan the Magistrate and as also recorded so, in the confession memo. Exh. P. Z/1, the accused appellant was asked the reasons for his making confessional statement, to which he replied that he was telling the truth. The only requirement laid down by the Law is that confession should be free from blemishes of compulsion, inducement. threat or promise. There fore, if a confession is not tainted by any such vitiating factor, the Court will be justified to presume that it is voluntary. In the instant case, the Magistrate who recorded the confession of the accused under section 164, Cr. P. C. has testified the voluntary nature of the confession of Muhammad Karim accused. The confession memo Exh P. Z/1, which was recorded in accordance with Law, could, therefore be presumed to be a genuine document, within the meaning of section 80 of the Evidence Act.

16. The mere fact that the accused remained in police custody for 5 days before he made confession, could not raise a presumption that the confession was made by inducement threat or promise. In Syed Sharifuddin Pirzada v. Sohbat Khan etc. (P L D 1972 S C 263) it has been held that the mere fact that the person making confession remained in police custody for sometime, does not lead to conclusion that confession was tutored. It was further observed, that remaining of accused persons for some time in police custody does not affect their confessions. In the cited case (as also in the present case) the Magistrate who recorded the confession had clearly stated in his statement that full opportunity was given to the accused to explain the circumstances in which they were given their statements and complied with the pro forma, which was available for recording the judicial confessions.

17. In the given circumstances of a case, confession may be considered as the most satisfactory proof of guilt, while in a case with different circum stances, it may be described as the weakest of all evidence. However, if the making of a confession is proved beyond any shadow of doubt, it becomes of significant value in law, providing effectual proof. It is common knowledge that no rational being could be expected to make a false admission C detrimental to his own interest, and safety. Law requires that the confession should not only be voluntary, but it must also be true. For the purpose of establishing its truth examination of the confession and it comparison with the remaining evidence of the prosecution and the probabilities of the case would be relevant, rather necessary. Particularly, in the case of a retracted confession, the rule of prudence requires independent corroboration.

18. Discovery of the blood stained cap Exh. P. 5 and the knife (crime weapon) Ex. P. 6, was relevant because the cap Exh. 5 was kept hidden in a covered hole, while the knife Exh. P. 6 had been concealed under the sand at two different places, which were known to the accused, and it was he who pointed their exact locations, which were unknown till then. The factum of the recovery of the blood stained cap Exh. P. 5 and the knife Exh. P. 6 at the instance and an the pointing of the accused has been fully proved on record and no explanation has been given by the accused as to bow he came to know about their presence at those particular places. If an accused person does not give a reasonable explanation of a certain fact proved in then case, then it is perfectly legitimate for the Court to raise a presumption against him.

19. The onus of proving that a confession is irrelevant by reason of its not being voluntary is on the accused person. The mere fact that a confes sion has been retracted does not necessarily show that the confession was the result of some improper inducement, threat or promise. The extent and nature of the corroboration required, before a Court can act upon and accept a retracted confession depends upon the circumstances peculiar to each case. No hard and fast rule can be laid down as to what will constitute sufficient corroboration of a retracted confession. However, it is an accepted rule of law that such corroboration must be on some material particulars, connecting the accused with the offence. In the instant case recovery of the blood stained cap Exh. P. 5 and the knife Exh. P. 6 under the mentioned circumstances, the medical evidence regarding the nature of the injuries, which were found on the dead body of the deceased, conduct of the accused in making a false report to the police and the fact that he was last seen with deceased immediately before the occurrence, lend sufficient corroboration to the retracted confession of the accused.

20. In the F. I. R. Exh. P. A., the scene of occurrence is mentioned to be lands in the limits of Habib Rasul Killi. In the site plan Exh. P. B, the location of Habib Rasul Killi is mentioned. In the post‑mortem report Exh. P. Z, which has been proved by P. W. Lady Doctor Nusrat Ara the actual spot where she performed P. M. examination on the dead body of the deceased, is mentioned as Mira Kurkuna. P. W. Shahbaz S. I. has categorically stated that the scene of occurrence is situated in the settled district although it is close to the boundary of the Tribal Territory. There is no rebuttal on record and therefore, it will not be difficult to conclude that the scene of occurrence is situated in the settled District of Peshawar, well within the jurisdiction of the trial Court.

21. In our opinion, the material present on record is sufficient to bring home the guilt to the accused. We, therefore, hold that Muhammad Karim appellant has been rightly convicted for an offence under section 302/34, B P. P. C., and he has been adequately sentenced. This appeal is, therefore. dismissed. S. Q. Appeal dismissed.