1968 P Cr (PLP)

A. SUBHAN CH0UDHURI, J.‑Both the appellants Hari Pada Debnath alias Haria and Tapa alias Jafar Ali have been con victed under sections 302 and 364 of the Pakistan Penal Code and sentenced to transportation for life and rigorous imprison ment for 5 years each, respectively, by Mr. Mufizul Huq, Additional Sessions Judge, Comilla. The prosecution case in substance is that on the night of Friday, the 6th Ashar, 1370 B. S. corresponding to 21/22 June 1963, Amar Chandra Deb Nath alias Malia, husband of accused Nanibala, was abducted and murdered by the appel lants. The 2 appellants are friends and they used to work at the house of P. W. I Hafizuddin as servants. They had illicit con nection with accused Nanibala who instigated them to abduct and murder her husband. On the night of occurrence, both the appellants vent to the house of Mafia and asked the latter to accompany them for catching fish. Nanibala also asked him to go with the appellants for the purpose. At first Malia refused saying that he was hungry but Nanibala pushed him outside the hot. Thereafter Maria pulled Malia by arms and took him away asking him to go with them to catch fish. Malia had the green Ganji, Exh. II and white Ganji, Exh. 111, in his wearing at that time. P. W. 13 Zaman Bhuiyan heard what t Nanibala stated and saw the 2 appellants taking away Malia to the jute land lying to the west of a temple named Bhagaban Saha's temple near the bank of the river. On the way P. W. 4 Zahur Ali who had a lighted hurricane, Exh. IV,. with him saw both the appellants and Malia on the bank of the river. The accused dragged Malia to the ail of the jute land. Haria pressed him and Tapa cut his throat with the dagger, Exh.

1. The 2 appellants were also seen on the bank of the river by P. W. 5 Najib Ali and P. W. 9 Abdu Mia. The dead body of Amar Chandra Debnath was discovered on the following morning at about 10 a.m. by P. W. 16 Amar Chandra Saha and it was also seen by P. W. 6 Babru Mia, P. W. 7 Rafiqul Alam and P. W. 14 Maqbul Hossain. On 29‑6‑63 at 4‑10 p .m. accused Nanibala was taken to the Thana by P. W. 24 Tabdil Hossain Dafadar and there she lodged an Information which was recorded in ‑ the General Diary by P. W. 20 S. I. Kazi Alauddin. In the meantime Tapa resumed his service at the house of P. W. 1 after 3/4 days' absence. On the evening of 29th June 1963 Tapa was sitting with Haria in front of the house of P. W. 1 who made a query from him as to the murder of Malta. Tapa thereupon fell at the feet of P. W. 1 and said: . "(I cut him on going with my friend. Please save me).". P. W. 21 A. S. I. Md. Sharfuddin accompanied by P. W. 12 Constable Lal Mia visited the locality. He went to the house of Tapa along with P. Ws. 1 and 2 and the aforesaid constable Lal Mia. At the sight of the police Tapa ran away and con cealed himself within a bamboo dole in the but of one Mangal Mia. He was brought out there from and taken to his house. He then produced a handle less dagger, Exh. 1, from an earthen pot. The dagger was seized by P. W. 21 under a Seizure List Exh 2(2). The party then went to the house of Haria who concealed himself within his kitchen. The constable brought him out there from. The 2 appellants then took the A. S. I., P. Ws. 1 and 2 and the constable to the jute land. Haria was kept at some distance while Tapa led them to the jute land. The, jute plants were found damaged there. Tapa brought out the green lungi, Ext. II and the white Ganji Exh. III as well as one bone and one sole of a human being from under water. Signs of dragging were also found there. The A.S.I. and men of his party kept those articles at the place wherefrom they were brought out and then they took Tapa and kept him where Haria was stay ing. Haria then led the party to the very same place and brought out the same articles which were then seized by P. W. 21 under the Seizure List Exh.

2. He also seized the damaged jute plants by preparing Seizure List Exh. 2 (1). The investigation of the case was taken up by P. W. 25 Shafiullah Choudhury, Officer‑in‑Charge of the Thana on the next day along 'with the alamats and papers in possession of P. W.

21. Beth the appellants made a statement to him and took him to the jute land wherefrom the lungi, the Ganji, the bone and the sole of a human being were recovered. He forwarded the appellants to Brahmanbaria Court and sent the bone and the sole to the Medical Officer, Brabmanbaria hospital through P. W.

12. At 11 p.m. on that day, i.e. on 2‑7‑63, he prepared a report and treated it as F.I.R. whereupon he started formal investigation. P. W. 23 Mr. Abdul Quader, Magistrate, 1st Class, recorded the confessional statement of appellant Haria at 1‑30 P. M. on that day after giving him 21 hours' time for reflection, and that con fessional statement is Exh.

3. On completion of investigation the investigating Officer submitted charge‑sheet against the appellants and accused Nanibala. A Magistrate, 1st Class, held preliminary enquiry in the case and committed the appellants and Nanibala to the Court of Sessions to stand their trial there, The appellants pleaded not guilty to the charges and contend ed `inter alia' that appellant Haria has got enmity with P. W. 1 over land dispute and that Tapa was servant of Taru Mia with whom P. W. 3 bad rivalry. Further contention of appellant Haria is that Police obtained his confessional statement by means of torture. Defence also denied that the appellants led P. W. 21 and the Investigating Officer to the jute land and produced the green lungi, the Ganji and the human bone and sole before them. According to the defence the appellants have been falsely impli cated in this case out of enmity. In order to substantiate its case the prosecution has produced as many as 25 witnesses out of whom 3 were tendered for cross examination. The evidence of P. W. 13 Saman Bhuiyan is to the effect that while returning from the house of one Wasek at about 11 p.m. he found the door of deceased Malia' s but open and saw 2 persons standing at the door. Nanibala who was within the but asked Malia to go with appellant Haria to catch fish but the latter refused saying that he was hungry. Malia' s wife then pushed her husband outside and thereafter Haria pulled Malia by arms and took him away asking him to go to catch fish with them. Tapa was the other person who was seen standing at the door. P. W. 13 asked Haria where they were going to which the latter replied that they were going to catch fish. According to this witness he had gone to the house of Wasek in connection with a talk of marriage. In cross‑examination it has been elicited from witness that on seeing the two persons he asked who they were and Haria stated ("I am Haria"). We get from the evidence of P. W. 4 Zahur Ali that on the night of Friday 5/6th Ashar at Esha prayer time he went to catch fish in the river with a lighted hurricane Exh. 1V and when after catching fish he was returning home at dead of night he found Haria, Malia and Tapa sitting on the bank of the river to the west of Bhagaban Saba' s temple. Malia had a green fungi and a white Ganji in his wearing. On his query Haria stated that they came to catch fish, but the witness, found no net with them. P. W. 5 Najib Ali has testified that after mid‑night of that Friday he went to the bank of the river to the east of Bhagaban Saba' s temple accompanied by Abdu Mia and they found 2 persons coming. On their query those two persons stated that they came to catch fish but did not get any. He recognised those persons as Haria and Tapa. It has transpired that he saw Tapa and Haria when they were 3 to 4 cubits away from him. P. W. 9 Abdu Mia has corroborated him and stated further that they did not find any fishing implement or fish with the 2 appellants. P. W. 15 Rafiqul Islam, son of P. W. 1 Hafizuddin, has de posed that on the relevant night Haria went to their house and called Tapa, who was a servant in their house, to go with him. He asked Tapa where he was going to which Haria replied that his father asked him to take Tapa to their house to take jack fruits, This witness has further stated that Haria and Tapa were friends and that they did not return that night. This witness was a student of Class VI of a High School at the relevant time. P. W. 16 Amar Chandra Saba was testified to the effect that he found the trunk of a dead body in the jute land of Bhagaban Saha to the west of his temple on the "7th Ashar last at about 10 A. M." and he noticed jute plants damaged on the spot. He also noticed‑blood on the spot and found a blood‑stained Gamcha. This witness finds corroboration in the evidence of P. W. 6 Babru Mia and P. W. 7 Rafiqul Alam, both school students. They found a headless dead body and jute plants broken at the spot. They also found green and white clothes on the dead body. P. W. 21 A. S. I. Sharafuddin held preliminary enquiry in the case on being . deputed by S. I. Alauddin. His evidence is that he searched for the appellants and found Tapa inside a Dole within a kitchen on the 30th June 1963 and then at his interrogation the said appellant made a statement to him and led him to the west bhiti but and produced a knife without handle from an earthen pot. This witness then went to the house of Haria whom he found inside his kitchen. Haria made a statement to him and both the accused led him to a place to the east of a temple in a boat through a Khal. Haria was kept in the boat incharge of Constable Lai Mia while Tapa led them to another jute land and after making a further statement produced the green lungi and white Ganji and one sole and one bone of a human being with flesh. There was knee deep water there. The articles were then deposited by Tapa at the spot wherefrom they were taken. Tapa was then taken to a distance of about 500 cubits from the land and kept in charge of Dafadar Tabdil Hossain. Haria then led them to the same jute land and made a similar statement and brought out the aforesaid articles from under water as was done by Tapa. These articles were seized under 2 Seizure Lists Exhs 2 and 2 (1). He also found jute plants damaged in the land wherefrom the lungi, Ganji and the human sole and bone were‑ seized. This A. S. I. Md. Sharafuddin has received substantial corroboration with regard to the recovery of the dagger, green lungi and white Ganji and the human sole and bone from P. W. 1 Hafizuddin and P. W. 2 Nannu Mia. P. W. 11 Gopal Chandra Sil who has a sharpen ing shop at Kuti Bazar has deposed that 15/20 days before their arrest by Police Haria and Tapa went to him for sharpening the dagger Exh. 1 and he sharpened the same. The dagger had a handle at that time. P. W. 10 Panjat Ali has testified that Haria is a friend of Tapa and he asked him (the witness) whether he would be able to murder Mallia but he pleaded inability to do so. The only material fact that has transpired in cross‑examination of this witness is that he served tinder P. W, Nannu for 4/6 months. P. W. 19 Dr. Shamsuddin Ahmad, Assistant ‑Surgeon, Brahmanbaria Government Hospital held post‑mortem examination on one bone and one skin produced by Constable Lai via lie found those to be of human body, the skin being the sole of ‑the right‑ leg which was 8" x 3 . The bone was 9" long which was of the left side and contained marks of damage. The doctor could not give any definite opinion regarding the cause of death as the person concerned died more than a week before his examination. There is also evidence of judicial and extra judicial confes sions of the appellants. P. W. 1 Haji Hafizuddin has deposed that appellant Tapa was his servant until his arrest by Police in connection with this case and Haria was a friend of Tapa. One evening in the month of Ashar he found Tapa sitting with Haria in front of his house and on his query as to murder of Mallia, Tapa fell at his feet and stated that he cut Mallia by going with his friend and implored him to save him. His evidence further shows that Tapa was not found on there Levant night and he did not return to his house for 4 days thereafter. P. W. 23 Mr. Abdul Quader, Magistrate, 1st Class, recorded the confessional statement of appellant Haria on 2‑7‑63 after giving him necessary caution and 21‑ hours time for reflection. The Magistrate repeatedly cautioned him and after the time for reflection given by him he recorded the confession. The Magistrate has certified that he was satisfied that the confes sion was voluntary. The gist of the confession which is Exh. 3, is :‑ "I have intimacy with Tapa from boyhood. Tapa used to visit Nanibala, wife of the deceased. 12/14 days before the confession Nanibala told Tapa that she would give him 2 Kanies of land as well as money if he could murder her hus band. Friday before last' at night I went to Nanibala' s house for fetching an axe. In the same night Tapa came to my house and asked me to go to pluck plums. 1 accompanied him and took deceased Amar along with us. After going to the river side Tapa said that Amar' s wife would give him 2 Kanies of land and money if Tapa could murder Amar. Amar heard this. Then Tapa and I dragged Amar to the ail of the jute land and while I held Amar so that he could not flee away, Tapa cut his throat with a dagger. Then we threw the head of Amar in the jute field and leaving the trunk there, went to Nanibala' s and reported that we had. murdered her husband by cutting his throat. Nanibala said, `Well done'." The convictions of the appellants under both sections 302 and 364 of the Pakistan Penal Code are untenable inasmuch as the two offences are mutually exclusive. Finding this defect the learned Advocate for the State candidly stated that he is unable, to uphold the conviction under section 364 of the Pakistan Penal Code. He conceded that the conviction and sentence under the aforesaid section should be set aside. He, however, contended that the prosecution has succeeded in bringing home the charge under section 302 of the Pakistan Penal Code to the appellants. It may be observed here that on the evidence on record there cannot be any conviction of both the appellants under section 302 pf the Penal Code. There is no eye‑witness to the occurrence and as such evidence is lacking as to who caused fatal injury to the deceased. According to the confessional statement Exh. 3 Tapa cut the throat of the deceased while Haria held him. If the entire prosecution would be based on this confession then Tapa could be held guilty under section 302 and Haria under section 302/109 of the Pakistan Penal Code. In any case the con viction of both the appellants under section 302 of the Penal Code is not maintainable. We shall now consider whether on the facts and circumstances of the case as disclosed in evidence the two appellants can be held to have committed an offence under section 302/ 109 of the Pakistan Penal Code. Mr. M. A. Rouf, learned Advocate, for the appellants has urged that reception of evidence of child witnesses in this case is contrary to law and as such their evidence does not deserve consideration. It has been submitted that it was the imperative duty of the trial Court to test the intelligence of the child witness to satisfy itself as to whether or nor they could under stand the questions put to them and give rational and intelligible answers. It tray be pointed out here that P. W. 6 was aged 14 years, P. W. 7 was aged 12 years and P. W. 15 was aged 10/11 years at the time of trial. There is no statutory provision of law that requires the Court to test the intelligence of a child witness at the initial stage to find out whether he is capable of understanding questions and giving intelligible answers. It is, however, highly desirable that the intelligence of a child witness should be tested before com mencement of his examination so that if he is found deficient in intelligence valuable time of the Court may be saved by no, examining him. It is worthwhile referring to the provisions of section .118 of the Evidence Act which runs as follows "All persons shall be competent to testify unless the Court considers that they are prevented from understanding the ques tions, put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. Explanation.‑A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them." This section does not lay down that testing of the intelligence of a witness of tender years is a condition precedent to the reception of his evidence in Court. The Lahore High Court in the case of Khalil v. The State (P L D 1956 Lah. 840); dealt with this question Shabbir Ahmad, J. delivering judgment in that case observed as follows: "The learned Counsel for the appellant pointed to no pro vision of law (and I know of none) which required that before I recording the statement of child witness, the Judge must record the questions asked from the witness to test if he was intelli gent enough to understand what he was deposing about, but re liance was placed on some remarks made by Agha Haider, J. in Tulsi v. Emperor (A I R 1928 Lab. 903). The learned Judge, who was dealing with the statement of a child, aged about five years said in the judg ment that it‑would be desirable when examining a child of tender years as a witness if the Court before examining it tests its intellectual capacity by putting a few simple and ordinary ques tions to it and to record a brief proceeding so that the Appellate Court should feel satisfied as to the capacity of the child to give‑evidence. I am in respectful agreement with the learned Judge that such a course is desirable, but I am not prepared to accept the argument of the learned counsel for the appellant that if such a course is not followed the evidence of the child witness becomes defective. Moreover, as there is no statutory provision dealing with the subject it is hardly open to a Judge to fix the age till which the questioning of the child witness to test its intellectual capacity should be resorted to." A Division Bench of this Court held in the case of Abdul Gani and others v. The State (P L D 1959 Dacca 944) that it is not imperative for the Court to subject a child witness to a preliminary examination before his evidence is received. The Court may, when the witness is actually giving evidence in Court; satisfy itself that he is capa ble of understanding the questions that are put to him and of giving an intelligible reply. In such a case, the evidence is certainly admissible. It is however, desirable that the Court should make such preliminary investigation in order to save the time of the Court if it decides against the competency of the witness to give evidence before it. We are in respectful agreement with the principles laid down in the ‑ above cases. It follows, therefore, that there is no sub stance in the argument of Mr. Rouf that evidence of P. Ws. 6, 7 and 15 was illegally received and that the same should be left out of consideration. It is also important to note that all the witnesses characteris ed by Mr. Rouf as child witnesses in this case were aged 10 years or more at the time of their deposition in Court, Up to what age a child may be considered to be of "tender years" has not been laid down in section 118 of the Evidence Act or elsewhere. A child of over 10 years of age is not "of tender years" and fort that matter, the provisions of section 118 of the Evidence Act do, not apply to this case. Going through the deposition of P. Ws. 6, 7 and 15 with due care and attention we find that these witnesses were intelligent enough to understand the questions they were required to answer and that they did give intelligent and intelligible replies to the questions put to them. The next contention of Mr. Rouf is that the confession Exh. 3 is not admissible in evidence on two grounds, namely, that the learned Magistrate allowed only 2J hours time to the confessing accused for reflection instead of 3 hours time which should have been allowed to him and that he was in Police custody for long over 24 hours before his production before the Magistrate for recording his confession. . In support of his first ground he has referred to Rule No. 3 appearing in the form of recording con fessional statement itself which lays down that the Magistrate before recording the confession of an accused shall give him at least 3 hours time for reflection. There is no requirement of law that at least 3 hours time should be given to the confessing accused for reflection. What the law lays down is that in recording the confession of a prisoner fresh from the hands of the Police, the Magistrate would exercise a sound discretion, if before recording it he gives the accused a short time to enable him to think over the question independent of the influence of the police and to decide whether he would make a confession or not. There is no absolute rule that a confessing accused should be given 3 hours time or any specific time for reflection. The rule referred to by Mr. Rouf in the confessional form has not the force of law: Besides, any irregularity in recording con fession is curable under section 533 of the Criminal Procedure Code. As regards the 2nd ground it appears from the confessional statement that the confessing accused was produced before the Magistrate on 2nd July 1963 at 11 A.M. and that he stated to the Magistrate that he was arrested on 28‑6‑

63. The evidence of P. W. 21 A.S.I. Sharafuddin, however, shows that he was arrest. ed on 30th June 1963. That was the date on which he visited the locality and searched for the appellants. Thus it appears that only one day, namely, the Ist of July intervened between the arrest of this appellant and his making the confession. We should also make allowance for the time taken in journey from the place of occurrence to the Court of the Magistrate. It appears that the distance of the place of occurrence, and for the matter of that, from the place of the arrest of the confessing accused Haria to the Thana is 6 miles, but there‑ is nothing to show the distance of Brahmanbaria to Kashba nor is there any evidence as to how the journey had to be performed. Considering all these aspects of the case we do not find that there was any undue delay in the production of the confessing accused to the Magistrate's Court at Brahmanbaria. In the case of Abdus Shukur v The State (16 D I..R 147), a Divi sion Bench of this Court held that where the confessing accused had been in custody of the police for long over 24 hours and subsequent to his remand after the recording of his confessional statement again continued in the de facto custody of the police, or rather of the Investigating Officer himself for about 10/12 days and in his statement under section 342 of the Code of Criminal Procedure he complained that he had been tortured by the police in the lock‑up as a result of which he became senseless and was thus not in a position to understand what he was saying or doing the confession could not be treated as voluntary in character. The present case is distinguishable from the facts of the above case. Here there is no evidence whatsoever to show that the confessing accused was produced for a short time before the Magistrate and was again taken back to police custody and then he was kept for a considerable length of time. It is true that appellant Haria in his statement under section 342 of the Criminal Procedure Code alleged that his confession was false and that he made the statement under assaults by the Sub‑inspector of Police and on the advice of the Daroga and that he did not remember what he stated, but there was no allega tion of torture or any assault or advice by the police before the Magistrate who recorded the confession. On the other hand, P. W. 23 Mr. Abdul Quader, the Magistrate has clearly stated that accused Haripada alias Haria made no allegation of any coercion or intimidation or allurement and that he was satisfied that the confession was voluntary. It may be observed that although Haria got 2 hours time for reflection he still made the confession at the expiry of that time in spite of repeated caution thereafter. In the facts and circumstances of the case we are of the view that the confession was voluntary. The correctness of the confession is evident from the circumstantial evidence to which we have already referred, namely, the evidence of P. Ws. 13, 4, 5, 9, 6, 7, 21, 1, 2, 10 and

11. The confes sion has received substantial and material corroboration from these witnesses regarding the circumstances under which deceased Malian was taken from his house on the fateful night and he was seen in the company of the appellants at dead of night at the river side by several witnesses and that on the next morning a dead body was found headless, the recovery of the green lungi and the white Ganji as well as bone and sole of afoot of human being in the jute land where jute plants were found damaged and blood stained wearing cloth was discovered. All the circumstances as testified to by these witnesses including recovery of the green fungi and the white Ganji at the showing of the appellants lead to the irresistible conclusion that the confession Exh. 3 is correct and that the appellants were instrumental in causing the murder of deceased Malia. It may be noted that the confession made by Haria is self, inculpatory and his conviction can be based only on it even though retracted. The next question that arises for consideration is how far the confession is admissible against Tapa. In this connection re ference may be made to the case of Joygun Bibi v. The State (PLD1960SC313). In that case the High Court observed as follows :‑ "She (Joygun Bibi) is named in the confession of Majid ate the person who helped him to murder the deceased but as that confession has been retracted, it is a recognised principle of law that it has practically no evidentiary value against the cot accused." The Supreme Court held that this is not a correct position of law as regards retracted confession. The retraction of the confession was wholly immaterial once it was found that it was voluntary as well as true. It was further held that if there was no other evidence against Joygun Bibi except the confession of Majid, then, the confession by itself being a matter to be taken into consideration, and not having the quality of evidence against Joygun Bibi, her conviction could not be sustained on the con fession alone. In that case there was other evidence except the confession itself and similarly in, the present case there is ample evidence connecting appellant Tapa with the murder or abetment of murder of the deceased. It may be mentioned in passing that the evidence of extra judicial confession which is forthcoming from P. W. 1 Hafizuddin is of very slender nature and we are not prepared to accept such evidence and make it a basis for the conviction of the appellants. After careful examination of the evidence and the facts and circumstances of the case we hold that both the appellants are guilty under section 302/109, of the Pakistan Penal Code and that they have been rightly sentenced to transportation for life. In the result, the appeal is dismissed with this modification that the conviction and the sentence passed under section 364 of the Pakistan Penal Code against the appellants are set aside and their conviction and sentence under section 302 are altered to those under section 302/109 of the Pakistan Penal Code. ABDUL MOUDUDM, J

I agree Appeal partly accepted.