1982 P Cr (PLP)

Thereafter Saleem Asghar, S. I. alongwith other police officials went to the house of Muhammad Aslam Sethi complainant where Mst. Qamar‑un Nisa, mother of the deceased, Allah Ditta, Anees Khalid and Abdul Rashid were present. He recorded their statements under section 161, Cr. P. C. The Sub‑Inspector sent for Sh. Abdul Rauf and Sh. Muhammad Ishaque as he was informed that they had seen the deceased in the company of Ghulam Muhammad appellant at about 4 p. m. on 1st September, 1975. He recorded the statements of these prosecution witnesses also at the house of the complainant. The same day, Malik Muhammad Bashir, P. W. (since dead) met a police party in Raja Bazar and told Saleem Asghar. S. I. that Ghulam Muhammad appellant was sitting in his house and had confessed before him that he had killed the deceased. Ghulam Muhammad appellant was arrested from the house of aforesaid Muhammad Bashir. At that time, he was wearing blood‑stained shirt P. 4 and shalwar P. 5 which were removed from his person and taken into possession vide memo. Exh. P. H. in the presence of Muhammad Bashir, P. W. (since dead) and Allah Ditta Sethi, P. W. The same day, the dead body of the deceased was recovered from the cluster of trees 410 yards away from the road in the area of Kala Chitta Pahar. The recovery memo of the dead body Exh. P. D. is attested by Allah Ditta, Anees Khalid and Muhammad Akram, P. Ws. Saleem Asghar, S. I. prepared the inquest report Exh. P. A. and injury statement of the deceased Exh. P. R. He also took into possession blood‑stained earth from the place where the dead body of the deceased was lying and made it into sealed parcel vide memo. Exh. P. F. He also took into possession blood‑stained stone P. 2, vide memo. Exh. P. E. Then he summoned the patwari and got prepared from him site plan Exh. P. B. and sent the dead body to Civil Hospital, Fateh Jang for autopsy. On 4th September, 1975 at 7‑30 a. m. Dr. Gul‑e‑Naukhez Ghauri conducted the post‑mortem examination and found seven injuries of the person of the deceased. The left temporal bone was fractured and depressed. Injury No. 7 was grievous due to fracture of temporal bone ‑and separation of sutured. The doctor, however, found no act of sodomy. The maggots were present in the nostrils and mouth. The faecal matter which had passed out was semi‑solid. Both eyes were bulging out. Tongue was protruding out. Features were bloated. The neck of the deceased was ligated with white nyloon bushshirt having two rounds around the neck and the two ends were twisted on the right side. Mark of ligature was present around his neck, sub cutaneous blood was clotted all over at the seat of cloth. There was an abrasion on the right side at the seat of twist. According to the doctor time between injury and death was about an hour and between death and post‑mortem about 60 hours. Exh. P. A. is the correct copy of post‑mortem report which bears signatures of the doctor and is in his handwriting. On 5th September, 1975 Ghulam Muhammad appellant led to the vicinity of Kala Chitta Pahar and got recovered chappals. In the presence of Allah Ditta and Muhammad Akram, P. Ws. which were taken into possession vide memo. Exh. P. G. On 11th September, 1975, Ghulam Muhammad appellant led to the recovery of watch P. 1. of the deceased from his house in Dhoke Matkal which was taken into possession vide memo. Exh. P. J. in the presence of Allah Ditta and Muzaffar Hussain, P. Ws. On 16th September, 1975 Ghulam Muhammad appellant got recorded his statement Exh. P. L. under section 164, Cr. P. C. before Malik Muhammad Afzal Awan, M.

1. C. (P. W. 11). The prosecution, at tiral, relied on the following pieces of evidence :‑ (1) Last seen evidence, contained in the statements of Mst. Qamar‑un Nisa (P. W. 3) and Sh. Abdul Rauf (P. W. 4) ; (2) evidence of recovery of dead body at the pointation of Ghulam Muhammad appellant, recovery of blood‑stained shirt and shalwar from the person of the appellant at the time of his arrest. Recoveries of chappals, blood‑stained earth, blood‑stained stone and wrist watch P. 1 belonging to Muhammad Usman deceased as contained in the statements of Anees Khalid (P. W. 6), Muhammad Akram (P. W. 7), Allah Ditta (P. W. 8) and Saleem Asghar (P. W. 14) (3) extra judicial confession proved through the evidence of Muhammad Afzal Awan, M.

1. C. (P. W. 11) ; (4) the evidence of motive contained in the testimony of Muhammad Aslam Sethi (P. W. 5) ; and (5) medical evidence. The plea taken by Ghulam Muhammad appellant in his statement under section 342, Cr. P. C. is that "During the days of occurrence I used to reside in the baithak of Muhammad Aslam Sethi P. W. and tailor his curtains. Allah Ditta P. W. wanted to engage his son with the daughter of Aslam Sethi P. W. who refused the said engagement. Allan Ditta P. W. suspected myself to be responsible for that refusal, and thus nursed grudge against me, when Usman deceased disappeared and could not be found at the instance of Allah Ditta I have been involved in this case. I do not know any Bashir P. W. and was not arrested from his house. I was kept in police custody for about 14 days and was made victim of torture by the police. During the days I was in police custody, Ahmidia agitation was obtaining in the country. Magistrate used to visit the police station in connection with law and order situation and the police used to seek my remand at the police station. On 16th September, 1975 1 was forcibly made to put my thumb‑impression on a writing whose contents I did not know at that time. I was subjected to torture which told upon me adversely and I suffered under its influence for considerable time. When I was sent to judicial lock‑up, I came to know that my thumb‑impression was obtained on an alleged confession ; then I sent application to the Higher Authorities intimating them the true state of affairs. My application sent to Deputy Commissioner is Exh. D. E: and copy of application sent to the Court of Sessions Judge, Rawalpindi is Exh. D. F. (recorded of both the officials seen and returned)." The plea taken by Muhammad Naeem appellant in his statement under section 342, Cr. P. C. is as under : ‑ Muhammad Aslam has involved me because of my professional rivalry with Muhammad Bashir who wanted to harm me and used Aslam as his tool. Curing the investigation of this case Muhammad Aslam demanded Rupees one lac from me and later on he reduced his demand to Rs. 40,000 which 1 refused to pay, because h was absolutely innocent. I do not know about the confessional statement of Ghulam Muhammad but it appears that he named me so that he can defend himself at my cost, but I have not done so. I am innocent." At this stage a mention be made of Exh. D. C. statement of the com plainant wherein he admitted that Muhammad Naeem appellant was innocent and he had no suspicion with respect to involvement of Muhammad Naeem in the case. The complainant when confronted with this statement took the position that the statement Exh. D. C. was written on the pressure of Mehr Muhammad Nawaz, D. S. P., City who wanted to help the accused and that a threat was given to him that in case he did not write such a statement a case under section 182, P: P. C. would be registered against him. We have gone through the entire evidence with the assistance of the learned counsel for the parties and have also carefully examined their respective submissions. Raja Muhammad Anwar, Advocate for Ghulam Muhammad appellant argued that nobody, admittedly, saw the killing of the deceased. The last seen evidence of the close relatives of the deceased does not stand supported from any independent evidence coming from unimpeachable sources and that the alleged recoveries of the articles allegedly belonging to the deceased cannot be relied upon and that it does not stand proved on record that dead body of Muhammad Usman, deceased was recovered at the pointation of Ghulam Muhammad appellant, as according to him, even the case was registered after the recovery of the dead body. Elaborating the submission it was argued that the F. I. R. was registered at 2‑45 p. m. whereas it is crystal clear from the statement of the prosecution witnesses that Ghulam Muhammad appellant was in custody of the police prior to the registration of the case and that it is unbelievable that Ghulam Muhammad appellant was wearing blood‑stained shirt and blood‑stained shalwar when he, to the meantime, bad also visited his house. The recovery of blood‑stained shirt and shalwar at the time of arrest of Ghulam Muhammad appellant cannot therefore be believed. Learned counsel further submitted that the manner in which the recoveries were effected on different dates would also show that the recoveries are planted one. It may be recapitulated that on 3rd September, 197 the dead body of the deceased and blood‑stained earth were recovered, chappals were recovered on 5th September, 1975 whereas watch was recovered on 11th September, 1975. It was, therefore, argued that had Ghulam Muhammad appellant gone to Muhammad Bashir and had confessed to him and had the appellant surrendered himself to the police through aforesaid Muhammad Bashir, there was no question of the recoveries being effected firstly on 3rd September, 1975 then two days later on 5th September, 1975 and then eight days later on 11th September, 1975. In that frame of mind the actual culprits would have got the recoveries recovered there and then in one day. He further argued that the recovery witnesses were close relations of the complainant and the only independent witness of the dead body, namely; Muhammad Akram (P. W. 7) did not support the prosecution and was cross‑examined by the prosecution itself. These recoveries, it was contended, therefore, be treated as circumstances corroborating the last seen evidence. As regards judicial confession it was contended that the confession was unvoluntary having been procured after subjecting Ghulam Muhammad appellant to torture on the last day when the final remand was expiring. It was submitted that Ghulam Muhammad appellant was arrested on 3rd September, 1975 when the confession was made was the last day of the remand. The appellant was produced on various dates earlier before the Magistrate but he expressed no desire to make a confession and on 16th September, 1975 after recording the confes sion the appellant was again given in the custody of same police while remanding the appellant to judicial custody. On this premises, it was argued that the confession having been retracted as early as on 3rd September, 1975 through written application to the Sessions Judge, Rawalpindi and to the Deputy Commissioner, Rawalpindi, from jail the same cannot be relied upon. The contention that the F. I. R. was registered after the recovery of the dead body of the deceased much after the time Ghulam Muhammad appellant was taken into custody appears to be based on the fact that in the F.I.R. the time of report has been mentioned as 2.45 p. m. (clj 40. 2‑45) The time of recording the F.I.R. was also noted in the opening part of the statement of Saleem Asghar, S.I. (P.Q. 14) as 2.45 p.m. However, examina tion of the statements of Sh. Abdul Rauf (P. W. 4), Muhammad Aslam Sethi (P. W. 5), Anees Khalid (P.W.6) and Allah Ditta (P.W.8) makes it clear that Muhammad Aslam reached the house at 2 a.m. and little while thereafter left for the Police Station to lodge the report. Saleem Asghar, S.I. met him tat 2‑30 a.m. at Chowk Imam Bara where his statement was recorded and then forwarded to Police Station "B" Division, Rawalpindi where report Exh. P.C./1 was recorded at 2.45 a m. While noting the time the police officer instead of realizing that it was 2.45 hours in the morning noted (RAAT) in the column of the F.I.R. it is'in the evidence of Ances Khalid (P. W. 6; that he joined the investigation on 3rd September, 1975, at 3 a.m, at the house of Muhammad Aslam Sethi having reached there previous night at about 11 p.m. Saleem Asghar, S.I. (P W. 14) recorded the statements of the prosecution witnesses present at the house. He also summoned Sh. Abdul Rauf (P. W. 4) and Muhammad Ishaq (not produced) and thereafter on 3rd September, 1975, Malik Muhammad Bashir, P. W. (since dead) met Saleem Asghar, S.I. and informed about the presence of the appellant in his house. The police party went to the house and arrested Ghulam Muhammad appellant from there and at about 12 noon the police party accompanying the witnesses left for the place of recovery of the dead body. Saleem Asghar S.I. (P. W. 14) in his cross‑examination at two places stated the time of his presence in the house of Muhammad Aslam as about 4/5 a.m. In view of the above it is clear that a mention of (BAJEY RAAT) against 2‑45 in the relevant column of the F.I.R. is therefore oversight and that the report was recorded in the early hours of the morning at 2‑45 a.m. It will, therefore, be not correct to argue on the basis of entry of "h &,'that the F.I.R. was recorded much after the recovery of the dead body or when Ghulam Muhammad appellant was already in the custody of the police. Except for the above‑pointed mistake no other material was referred to in support of the submission. As regards recovery of the dead body of the deceased, blood‑stained earth and stone, these recoveries were made at the pointation of Ghulam Muhammad appellant on 3rd September, 1975. The blood‑stained clothes of the appellant were also taken into possession at the time of his arrest on the same day. The recoveries of chappals and watch were made on 5th September, 1975, on 11th Setember, 1975 respectively. The recoveries of the dead body of the deceased, blood‑staind earth and blood‑stained stone had distinctive features as against the other recoveries of chappals, watch and clothes removed from the person of Ghulam Muhammad appellant as these recoveries were witnessed by close relations of the complainant. The recovery of blood‑stained clothes from the person of the appellant cannot be believed as it cannot ordinarily be accepted of a killer to move in public with blood‑stained clothes especially when he had also the occasion to visit his house prior to his arrest. There is no explanation as to why Ghulam Muhammad appellant went with blood‑stained clothes to Malik Muhammad Bashir, what relationship he had with Muhammad Bashir and with what expectation he approached him and for ultimate surrender to the police. The manner in which Muhammad Bashir was stated to have approached the police also does not appear to be believable Anees Khalid (P. W. 6), Allah Ditta (P.W. 8) and Muhammad Aslam Sethi (P.W. 5) were admittedly with the police since 3 a.m. but Anees Khalid, P. W. alone narrates as to how Muhammad Bashir n‑.et the police party in Raja Bazar opposite. Civil Hospital and how he alongwith the police party reached the house of Muhammad Bashir and Ghulam Muhammad appellant was produced before the police with the blood‑stained clothes on his person. Allah Ditta (P. W. 8) does not state anything about this as he picks up thread from 12.30 noon onward and deposed about the recoveries made from the vicinity of Kala Chitta Pahar on 3rd September, 1975, and 5th September, 1975. Muhammad Aslam Sethi (P.W. 14) also in his statement at the trial deposed about some of the recoveries though he admitted that he from the time of lodging of the report till post‑mortem examination remained with the police party. If Ghulam Muhammad appellant had surrendered himself voluntarily through Muhammad Bashir then recoveries could have been effected on the same day. The recoveries of chappols and watch made on 5th September and 11th September, 1975, cannot be relied upon. The recovery of the dead body blood‑stained earth and blood‑stained stone is, however, to be treated differently. Firstly, this recovery was witnessed by Muhammad Akram (P. W. 7), admittedly, an independent person. We are conscious that Muhammad Akram (P.W. 7) at trial stated that Ghulam Muhammad appel lant did not point out the place from where the dead body was found and that on first occasion when the police came and dead body was search ed for about two hours. He, however, admitted having attested the recovery memos wherein it was mentioned that the dead body was re covered at the pointation of the appellant. He also admitted that the accus ed bad accompanied the police party at the time of search. In cross‑exami nation Muhammad Akram (P.W. 7) stated that Ghulam Muhammad appel lant lives in village Gharrk which is six miles from the place of Kala, P.W. (won over) who also resides in village Gharrk. He is my nephew. I arrived in the Court at 9‑00 a.m. today. I do not know if Kala is a witness in this case or not". He further stated that it is correct that Ghulam Muhammad and he himself lived in the area of the same Police Station. The aforesaid answers reveal the reason for giving the concession to Ghulam Muhammad appellant. In any case it was accepted that the accused accom panied the police party and the witnesses to the place of recovery which was a lonely place 440 yards from the road in the cluster of trees a place where no person would ordinarily go to search for the clues of the child missing from Rawalpindi 40 miles away. The reason, therefore, has to be found why the police went to that place at all and on record no other reason is offered that the accused himself led them to that place. The testimony of Muhammad Akram (P. W. 7) even to the extent that the appellant accompanied the police to the area of Kala Chitta Pahar coupled with the testimony of Anees Khalid (P. W. 6) and Allah Ditta (P. W. 8) though related to the complainant Set as they have no animosity whatsoever against the appellant can in these circumstances be relied upon as regards the recovery of the dead body, blood‑stained earth and blood‑stained stone at the pointation of Ghulam Muhammad appellant. Coming to the retracted judicial confession it is to be noted that though the Magistrate recording the confession put the usual questions to Ghulam Muhammad appellant before recording the confession yet he failed to inquire as to why he is making the confession on the last day of the remand and bad not expressed the said desire though he has been appearing before him earlier at the time of taking his remand by the police. Moreover the making of confession on 16th September, 1975 does not appear us to be the voluntary act of the appellant. Had he surrendered himself to the police through Muhammad Bashir voluntarily on 3rd September, 1975 with blood‑stained clothes and bad he confessed his guilt before Muhammad Bashir and had he led to the recoveries voluntarily as was the case of the prosecution the first thing which would have been done by the police would be to produce Ghulam Muhammad appellant before the Magistrate for the purpose of recording his confession. Saleem Asghar, S. I. in order to explain as to why Ghulam Muhammad appellant expressed his desire to make a confession on 16th September, 1975 tried to explain it by saying that he could not interrogate Ghulam Muhammad appellant' from 11th May, 1975 to 16th May, 1975 after recovery of the watch because of his duties to maintain law and order situation in the wake of Ahmadia agitation. This explanation is hardly convincing. Assuming for the sake of arguments that the confession was voluntary and as such admissible in evidence yet the confession having been retracted, it is well established that a retracted judicial confession is seldom made the basis of conviction without being materially corroborated. It is well established that even if a confession is voluntary it must also be established that it was true and for the purpose of establishing its truth it is necessary to examine the confession and compare it with the rest of the prosecution evidence and the probabilities of the case. See Nadir v. The Crown (1969 S C M R 442) and Dhani Bakhsh v. The State (P L D 1975 S C 187). Applying these principles in the instant case we are of the considered M view that there appears to be neither any plausible reason for Ghulam Muhammad appellant to make the confession nor the probabilities in the case support the making of the alleged confession. The alleged confession cannot, therefore, be made a basis for conviction. We are thus left with the last seen evidence contained in the statement of Mst. Qamar‑un‑Nisa (P. W. 3) and Sh. Abdul Rauf (P. W 4) and the recovery of dead body of the deceased at the pointation of Ghulam Muhammad appellant, recovery of blood‑stained stone and blood‑stained earth. The testimony of Mst. Qamar‑un‑Nisa (P. W. 3) and Sh. Abdul Rauf (P. W. 4) cannot be rejected merely on the ground that they are relatives of the deceased. There was no reason whatsoever for them to falsely implicate the appellant. The suggestion that he was being implicated, he earned the annoyance of Allah Ditta (P. W. 8) as he was responsible for refusal made by Muhammad Aslam Sethi father of the deceased boy to give the hand of his daughter to the son of Allah Ditta was denied. This otherwise would not furnish any cause to Mst. Qamar‑un‑Nisa, mother of the deceased boy and to Sh. Abdul Rauf another cousin of the complainant to falsely implicate Ghulam Muhammad appellant. The deceased boy, according to Mst. Qamar‑un‑Nisa was taken from the house by Ghulam Muhammad appellant at about 2.30 p. m. on 1st September, 1975 and Sh. Abdul Rauf saw the ill‑fated boy in the company of Gbulam Muhammad appellant at 4 p. m. on the same day. Dr. Gul‑e‑Naukhea Ghauri (P. W. 1) in his statement deposed that the death occurred within 60 hours of the time of post‑mortem examination. The post‑mortem of the dead body was conducted on 4th September, 1975 at 7‑30 a. m., the time of death, therefore would be about 8 p. m. on 1st September, 1975. In these circumstances, we have to determine whether the last seen evidence coupled with the recovery of dead body of the deceased at the pointing of Ghulam Muhammad appellant is sufficient to establish the guilt of Ghulam Muhammad appellant under section 302, P. P. C. In the instant case the deceased boy was last seen in the company of Ghulam Muhammad appellant at a time which is approximate to the time when the death of Muhammad Usman deceased occurred. Considering the distance between Rawalpindi City where both were last seen and the distance of 40 miles of the place where the dead body of the boy was ultimately recovered at the pointation of Ghulam Muhammad appellant, the place of recovery was the place which was not only lonely but was also far away from Rawalpindi City where no person would ordinarily go to search for clues of the missing child. In Rehmat v. The State (P L D 1977 S C 515) learned Judges of the Supreme Court were pleased to observe that "the circumstance of the deceased having been last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. Further evidence is required to link the accused with the murder of his companion. Such as incriminating recoveries at the instance of the accused a strong motive or the proximit, of the time when they were last seen together and the time when the deceased was killed. Only then will the accused be called upon to give an explanation of the demise of the person who was last seen alive in his company". Again in the case of Abdus Samad v. The State (P L D 1964 S C 167) the conviction was upheld observing that "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". In this case also there is no explanation offered as to how Muhammad Usman deceased met hi4 death. The last seen evidence coupled with the recovery of the dead body at the pointation of Ghulam Muhammad appellant from the vicinity of Kala Chitta Pahar 40 miles away from Rawalpindi City furnish sufficient basis for holding Ghulam Muhammad appellant guilty of the offence of murder. The appeal of Ghulam Muhammad appellant is, therefore,, dismissed. Sentence of death awarded to him is confirmed. As regards Muhammad Naeem appellant the only evidence against him was the retracted judicial confession of Ghulam Muhammad appellant. Having held that so‑called confession of Ghulam Muhammad appellant was not voluntary, there remains nothing on record against Muhammad Naeem appellant. Assuming that the confession was voluntary and admissible even then the confession was retracted one and there was nothing to corroborate the said confession or the role attributed in the confession to Muhammad Naeem appellant. The assertion as to the strained relations on account of some contract mentioned in the F. I. R. which was at trial changed into dispute over return of borrowed money not supported by any evidence whatsoever and remains the bald assertion of Muhammad Aslam Sethi complainant. The motive as alleged against Muhammad Naeem appellant is so feeble and flimsy that the same cannot be made a basis for believing his alleged involvement in the disappearance of the ill‑fated boy. The conviction of Muhammad Naeem appellant is unwarranted and is accordingly set aside. The appeal of Muhammad Naeem appellant, therefore, stands accepted.