P L D 1964 Supreme Court 167 (PLP)

CORNELIUS, C. J.‑In this appeal by special leave the appellant is one Abdus Samad who stands convicted of the kidnapping of a six year old girl named Mst. Hakimzadi, and of having subsequently murdered her. Direct evidence is available that the accused took the child out of the custody of her parents but since he was known to them, unless he be held responsible for murdering her, the act would not necessarily be criminal. There is no direct evidence of the murder. The child was said to have been last seen being led by the accused from the vicinity of the quarters attached to the Civil Hospital, Hyderabad, where her parents live, at about 10 a.m. on the 9th August 1960. The pretext given by the accused to one witness namely Dost Ali who was in the parents' quarter at the time was that he was taking her to her mother who had gone that morning with two of her other children to a suburb of Hyderabad known as Tando Agha. The accused himself lived in the guest‑quarters of the Imambara in Tando Agha. He was known to the child's father Dhani Bux for about 1 years, for Dhanl Bux attended majlises at Tando Agha, where he has relations living. The child was weeping because she was left behind by her mother. A second pretext was given, a short distance further on to Dhani Bux, who, from a window of the Civil Hospital where he works as a ward boy, saw the accused and the child going together, namely, that he was going to get some sweets for the child. The child never returned. There was some delay in making a search for her for which the reason given is that Dhani Bux thought that the child had been left with his wife in Tando Agha, having heard this excuse from Dost Ali. On the 11th August, when the mother returned to the Civil Hospital it was found that the child had never been taken to her at all. It was then that Dhani Bux becoming anxious began to enquire for Abdus Samad, who he found had gone away to Karachi. At the request of Dhani Bux, Ghulam Mustafa, a police Head Constable of Hyderabad went to Karachi on the 12th August and returning on the 13th, told Dhani Bux that he had met Abdus Samad who said that he had taken the girl to the town and got her some sweets and then sent her back to the hospital and knew nothing further about her. Abdus Samad refused to come to Hyderabad to explain things to Dhani Bux himself. He had been a constable in the Hyderabad Police Force, but had absented himself from duty from the 24th July onwards. His own case was that he had submitted a resignation, and he produced a document (Exh. 16) which he said was typed out for him by Ghulam Mustafa, tendering his resignation with effect from the 1st August 1960. Ghulam Mustafa denied responsibility for this document but he had admitted in the committing Court that he had drafted the resignation for Abdus Samad and had got it typed. Abdus Samad's version of the matter was that he had developed a liaison with an unmarried sister of Ghulam Mustafa who was annoyed over this and demanded that Abdus Samad should leave the police force and it was for this reason that he submitted his resignation. In support of his claim to be on intimate terms with Ghulam Mustafa's sister the accused produced a number of love letters, but these were not signed and it has not been proved by whom they were written, for Mustafa stated that his sister was illiterate. Although Abdus Samad was shown to be absent from duty from the 24th July, it appears that his name was still carried on the rolls until a much later date namely the 23rd August 1960. By this time he had already been arrested in Karachi. This was on the 15th August, and the arrest was made on a charge of kidnapping on the basis of a report by Dhanl Bux which was made on the 14th August. According to the statement of the Investigating Officer S. I. Ghulam Yasin (P. W. 21), he was brought to Hyderabad on the 17th August. There was no trace of the girl from the accused till the 22nd August, on which date S. I. Ghulam Yasin visited an outlying place, Samaro, from where information of the presence of a minor girl had been received. It proved to be another girl. On the evening of the 22nd August, the Sub‑Inspector returned to Hyderabad and on the very next day under interrogation the accused agreed to show the place where the dead body of the girl was lying. On the same day, the accused led the police party headed by Inspector Muhammad Hussain (P. W. 18) to a lonely hill some four miles from Hyderabad known as Ganjo Takar. Up to the base of a hill they went in a motor vehicle and from there they climbed up a distance of about 100 ft., to the spot indicated by the accused where there was a bush in which he said the dead body was lying. There was no body there, for it seemed that it had been devoured by animals, but inside the bush they found two small pieces of cloth and some long human hairs. A few paces from the bush two other pieces of similar cloth were found. At a distance of about 100 paces from the bush, a human skull was found. According to Muhammad Hussain (P. W. 17) there were hundreds of animal bones lying on the hill together with a few human bones. The party picked up about 35 of these bones which they thought were human. Later, the skull and the bones were sent for examination to an Anatomical Expert who found that most of the bones were of animals but the skull was human, and there was also the left collar bone, one right and one left rib, and two bones from the right arm, and all of these were estimated to belong to a child of about the age of six. The presence of parts of the muscles and tendons still attached to the bones at the time of the examination showed clearly that the death was fairly recent. Judging by the long hairs, it was a female child. The hairs were identified by the father Dhani Bux, who also said that the pieces of cloth found on the spot were from the frock which the girl was wearing when she was kidnapped. In support of the latter statement a witness Mst. Habib Khatun (P. W. 1) gave evidence that she had tailored a frock of similar material for the girl Hakimzadi. It appears that all his disclosures were not made by the accused at the same time, for later in the afternoon on the same day, the police party again took him to the same spot and from under the same bush, they recovered a tin box without a lid. The significance of the tin lies in this namely that the pro secution believed that the accused had taken the small girl to this lonely place, having equipped himself with some oil in the tin aforesaid and there he raped the girl and in the process she died and he threw her body into the bush. The tin was traced with the help of the accused to the shop of a street‑stall vendor Amiruddin (P. W. 15), which was shown to the Police on the 28th August. Amiruddin recognised the box as one he had sold to the accused, who had with him a small girl at the time, some 18‑20 days before. The place from which oil was bought was allegedly shown by the accused to the police on the 27th August. It was the shop of Ahmad Nabi (P. W. 5), who recognised the accused as the purchaser of a small quantity of oil from him some 18‑20 days earlier. Ahmad Nabi was however clear that the accused was by himself at the time. One other witness who deposed to the girl having been in the company of the accused on the day in question was Misri (P. W. 16) owner of the Gharib Nawaz Hotel who knew the accused, and said that he had come to his hotel with a small girl aged about 6 years, and there they had two cups of tea and a cake. This witness appears to have remembered the frock the girl was wearing for he said that the pieces of printed cloth shown to him in Court were similar to the design of that frock. Misri's hotel was also shown to the police by the accused on the 27th August. One other piece of evidence which was led against the accused was the statement of a witness Ghulam Abbas (P. W. 8), a resident of Hyderabad who said he had met the accused in Karachi where he himself had gone to buy spare parts for the bicycles which he hires out for a livelihood. The approximate date of his encounter with the accused can be calculated from the fact that Ghulam Abbas was examined by the police on the 3rd September 1960, and this according to Ghulam Abbas was about 20 or 25 days after his meeting with the accused in Karachi. That would place his encounter between the dates 9th August and 15th August 1960. Ghulam Abbas said that the accused asked him to put him up in Karachi which he could not do, and also asked for money which he did not give. Ghulam Abbas was aware that Abdus Samad bad relations in Karachi. He added that Abdus Samad told him that the Hyderabad Police were after him because he had killed a girl while committing rape on her. Ghulam Abbas was clear that he never mentioned this confession to anyone, neither in Karachi nor in Hyderabad. The Police Officer said that he got the name of Ghulam Abbas from the accused in the course of the interrogation, but it surely could not have been of any interest to the police to discover the names of all the persons whom Abdus Samad met In Karachi between the 9th and the 15th August. The only relevant piece of evidence which Ghulam Abbas gives is as to the confession and it can hardly be that the police while interrogating Abdus Samad asked him the names of any person or persons to whom he had confessed his crime. That completes the account of the evidence led against the accused and as to this evidence Abdus Samad denied everything appearing against him in it. He said that he never took the girl with him at all, he never took her to a hotel for tea nor did he buy any tin box from Amiruddin or have it filled with oil by Ahmad Nabi nor did he show the police where the remains were found or led them to the various shops. He explained that he had been falsely charged through the intrigues of Ghulam Mustafa, who was enraged on account of his having a connection with his sister. He produced no evidence in his defence. It is of some importance in a case like this to note that two of the three assessors who sat with the Judge at the trial expressed the opinion that the accused was guilty. (The third was absent through illness). The trial Judge convicted the accused under both sections. He formed the opinion that the remains recovered at Ganja Takkar were of the missing girl. He believed the evidence regarding the taking of the girl from her parents' quarter by the accused. He thought that the "crack of the skull showed that the accused had belaboured the girl to death." As to this it should be pointed out that a medical witness Abdul Majid had deposed in the committing Court that there was no crack in the skull but only the natural sutures. Moreover, the story of rape is supported only by the very unlikely evidence of Ghulam Abbas and there is a third version of the manner of the girl's death in the mashirnama prepared on the spot by Inspector Muhammad Hussain which was proved as Exh. 38, in the following words :‑ "After walking a distance of about 200 yards, he (the accused) stopped near a Devi bush and pointed towards the same Devi bush and stated that Mst. Hakoo the girl aged about 6 years who was kidnapped from Civil Hospital, Hyderabad was strangled and thrown in this bush." The trial Judge accepted the evidence of the witnesses Misri Khan, Amiruddin and Ahmad Nabi, and also used as a circum stance against the accused that he had deserted his duty on the 24th July 1960, and "was more or less a vagabond and apt to play any mischief." The accused's appeal in the High Court was dismissed by a Division Bench which expressed the opinion that "the circumstantial evidence has been established by reliable and cogent evidence" and that the learned Judges could not "think of any hypothesis consistent with the innocence of the appellant and none has been suggested. They thought that the recovery of the remains, which, in their opinion, were connected with the missing girl, from a desolate place four miles away from the hospital show that the accused had "exclusive knowledge" of the presence of the remains at that place. They relied also on the extra‑judicial confession proved by the witness Ghulam Abbas. With respect, the statement of Ghulam Abbas does no appear to be worth the paper on which it was written. He has been a police mashir in a number of cases earlier, and for reasons which have already been given, I find it impossible to believe that Ghulam Abbas's name as a person to whom the accused had confessed his crime, was disclosed by the accused himself, in the course of his interrogation. In the absence of such a disclosure, there was no reason at all why the Police should question Ghulam Abbas. As regards the identification of the remains, scanty though they were it is proved beyond doubt that these were bones from the skeleton of a child aged about six years and the presence of long hairs in the bush pointed out by the accused is sufficient to establish that the child was a girl. Further identifica tion is provided by the pieces of cloth recovered from the bush which were recognised by the father and by a person who had made the frock not long before. The acceptance of this evidence namely the recovery of' the remains at the instance of the accused is entirely dependent upon acceptance of the evidence of the Inspector Muhammad Hussain the Sub‑Inspector Ghulam Yasin and one mashir P. W. 17 also named Muhammad Hussain who it seems works in a hotel close to the City Police Station which also has a contract for supplying food to the prisoners in the police lock‑up. The learned counsel for the appellant suggested that in fact Muhammad Hussain was not at all independent, and should be regarded as no better than a police witness, as were the Inspector and the Sub‑Inspector. That may be the case, but accepting the fact that the remains were found from a very lonely place where no person would ordinarily go to search for clues to the child missing from the, town four miles away, a reason has to be found why the Police went to that place at all, and no other reason is offered than that the accused himself led them to that place. It is impossible to trace this result to the alleged intrigue on the part of Ghulam Mustafa, which itself is far from being established by the mere allegation of the accused regarding his liaison or by the unsigned and unproved letters which he produced. It is also clear that the two Police officers and the mashir Muhammad Hussain who appeared and gave evidence before the trial Court were believed by the trial Judge and the assessors. That opinion is entitled to great weight. The evidence as to the buying of the tin and the oil does not possess the necessary substance to establish an incriminating circumstance. There is some doubt as to the manner in which the child met its death, and again, it is clear that the child was not in the company of Abdus Samad when he bought the oil. The evidence of Misri that Abdus Samad and the child had some tea and a cake in his hotel proves no more than is proved by the evidence of Dost Ali and Dhani Bux namely that the child was taken away from the custody of his parents by the accused. By itself, it has no value as a circumstance connecting the accused with the eventual death of the child. When this evidence, and that of Ghulam Abbas, is examined with the detailed and scrupulous care which was enjoined by the Federal Court in the case of Fazal Elahi alias Sajawal v. The Crown (P L D 1953 F C 214) in respect of a series of minor circumstances on which an inference of guilt is sought to he built, it proves to be lacking in necessary evidentiary value. But there can be no doubt that the child was last seen alive in the company of the accused, on the morning of the 9th August, in Hyderabad city, and that he had exclusive knowledge of the place where its remains were eventually found. He gave no explanation as to how the child met its death. The fact that the discovery of the crime was delayed has led to the disappear ance of a good deal of evidence which might have been available if the disappearance of the child had been reported immediately. One result is that the manner of the child's death is a mystery. If the child did not die while being raped but was strangled to death, for no reason whatsoever, the cause might perhaps be found in some psychopathic irresponsibility in the accused, for he bore no grudge towards anyone connected with the child, and the child herself could have done him no injury. However that may be, the two circumstances mentioned above were, in my opinion, sufficient to establish the charges of kidnapping and murder against the accused, being sufficient to exclude all possibility of his being innocent of the death of the child. I would therefore hold that he was rightly convicted, and would dismiss this appeal. A. H. Appeal dismissed.