1969 P Cr (PLP)

Material facts are these. The deceased Asudibai who owned and held a licence for the Capital Cinema Hyderabad, was living in it with her husband who was managing it. On 26th August 1949 this cinema was sealed by the Assistant Custodian Evacuee Property and thereafter it was allotted to Muzaffar Hussain Kazmi (P. W. 28) on condition that he deposited Rs. 5000 cash and furnished security for Rs. 15,

000. This witness entrusted the entire management of the cinema to accused Ibrahim Khan as he arranged for these securities and also invested all the money including running expenses. The deceased, who, in the meantime, was declared a non‑evacuee appealed against this allotment and her appeal stood adjourned to the 15th August 1950, but she was shot dead at about 10‑45 a.m. on the 12th in the portion of the house of Mr. Tahilram (P. W. 1), an old resident of Hyderabad, where she and her husband had taken up residence when they were evicted from the cinema. Her husband had died in February 1950. A fortnight prior to the occurrence the acquitted accused started conferring with each other behind closed doors giving directions to the approver Hamid who was a servant working in the cinema not to allow anyone to enter. On the 6th August 1950 accused Ibrahim Khan sent word to the deceased through the approver to take him as a partner, but she declined the offer, stating that she would fight out the case as she was confident that justice would be done. About that time accused Ibrahim Khan and accused Zaheer Hussain accompanied by Ibrahim's mistress Shamshad, wife of one Muhammad Amin, went to Multan where the appellant was living by making crackers. Zaheer Hussain contracted the appellant and saying that lie was required for making a bomb brought him to Hyderabad where accused Ibrahim Khan told him that he had an enemy who was a Hindu and whose party had killed 20 of Ibrahim's men in India and that a powerful bomb should be made to destroy him. The appellant bought materials with the money given to him but afterwards he was told that it was a Hindu woman who was to be killed and that as a bomb would cause disturbance he should use a revolver. He was further told that if she was killed her estate would become State property and he would be rewarded, but that if she remained alive she would go away to India and her estate would be lost to the State. On the day prior to the occurrence the appellant was told that the approver would help him, the arrangement being that he should accompany the appellant to the house of the deceased, that he should first enter it and leave the door open if there was nobody else in the house or close the door if there was some body else, and that if the door was open the appellant should go in and shoot her. The approver was to introduce the appellant to the deceased as a clerk of the permit office. On the day of occurrence the appellant was given a revolver which he loaded with six bullets and then accused Ibrahim Khan, Muhammad Amin Khan, whose wife was being kept by Ibrahim Khan, the approver Hamid and the appellant left the cinema in a `victoria'. Reaching a spot which is close to the deceased's house. The appellant indicated in the evidence as two graves which is close to the deceased's house, the appellant and the approver got down while the rest of the party drove on. 'I he approver went inside the house of the deceased and finding none else there kept the door open and when the deceased came out and sat on a chair he introduced the appellant as a clerk from the permit office. The appellant then fired at her twice and she fell down. The appellant and the approver ran away. P. W. 1, in a portion of whose house the deceased was living was at the time of the occurrence in the Sindh National Bank of which he was then the Managing Director and the servant of the deceased had gone out. But one Mr. Fateh Chand who had come to visit P. W. 1 and was staying with him, hearing the shots fired in the portion occupied by the deceased rushed there and found her with bullet injuries. P. W. 1's servant also came on the scene and turned the deceased when she expired. P. W. 1 came there on being informed of the murder on the telephone, and he gave information to the police. The approver and accused Ibrahim Khan were arrested on the day of occurrence itself, while the other two acquitted accused were apprehended the next day. The appellant was arrested at Multan on the night of the 16th August at 11‑30 and was produced before the Hyderabad Police on 19th, on which day, after he was interrogated he led the police to a spot near a latrine from‑where from a depth of lift. he dug out a '38 bore revolver wrapped in a cloth. He further produced from a room of his house four live '38 cartridges wrapped in small pieces of cloth and other articles required for the preparation of explosives. After this recovery he was produced before the City Magistrate of Hyderabad who after giving him time to reflect and after satisfying himself that the appellant was going to make a confession voluntarily, recorded his statement. The appellant was then remanded to the police custody for the purpose of further investigation. The approver's statement was recorded by the same City Magistrate the next day. From the scene of crime two empty cartidges were recovered and those along with the revolver produced by the appellant were examined by P. W. 29 Assistant Examiner of Firearms C. I. D., Peshawar in May 1955. His opinion was that the crime cartridges were fired from that revolver. It was in his evidence that these articles were examined even in 1950 but that opinion was not exhibited, nor were the bullets in respect of which P. W. 29 opined, produced at the trial. Evidence to corroborate the approver in respect of the acquitted accused and on the charge of conspiracy was also adduced, and the trial Court believed that evidence in spite of certain defects observing that the witnesses had been bought over but still it was possible to accept portions of their version. The learned Judges of the High Court however decided to discard that evidence and, as indicated already, they held that the approver was not sufficiently corroborated as far as the acquitted accused were concerned. Therefore the arguments of the learned Advocate for the appellant were confined only to the following items of evidence: (1) approver's testimony; (2) confession of the appellant; and (3) evidence of recovery from the appellant of '38 bore revolver; and (4) the opinion of the expert that the empty bullets from the scene of crime were fired only with that revolver. As regards the first of these items it was contended for the appellant that the approver's testimony was worthless as it was not possible for him at the tender age of 16 to play the part which he ascribed to himself and that the learned Judges of the High Court themselves did not rely on his evidence as is seen from the fact that they did not record a finding that it was true. But the approver though 16 years old in 1950 was not altogether inexperienced. In any case there could be no presumption that a lad of 16 years can never participate in a crime. There have been, on the other hand several instances of persons of that tender age playing the principal part in the crime all by themselves. The approver in this case was a servant in the cinema even from the days when it was under the management of the deceased. It was, therefore, not unnatural that he was selected to take a message to the deceased from accused Ibrahim Khan or for keeping watch when the accused were conferring with each other. Similarly it is not inherently improbable that he agreed to take the appellant to the house of the deceased to introduce him as clerk of the Permit Office. It is true that the learned Judges have not specifically referred to the evidence of the approver while dealing with the case of the appellant, but that was due to the fact that the conviction of the appellant could be maintained even on his own confession as it was supported by the Expert's evidence which they accepted. There is however nothing in their judgment to indicate that they differed from the trial Judge with regard to the appreciation of the approver's testimony. On the other hand their discussion of the case of the acquitted accused starts with the observation that it was held by the Privy Council that the evidence of one accomplice could not be used to corroborate the evidence of another accomplice and that the evidence of the approver in this case could not be used to corroborate the confession of the appellant as against the co‑accused. If they had regarded the approver's version unbelievable they would not have proceeded to consider the evidence adduced as corroborative as far as the accused other than the appellant were concerned. It was not disputed that the confession corroborates the approver's testimony as against the appellant but it was strenuously argued on behalf of the appellant that the confession was not voluntary because (1) there was nothing on record to show that the appellant was told before he made the confession that he was before a Magistrate and the evidence of the Magistrate that the appellant was so informed should not be believed as it was given several years after the incident; (2) the appellant was not warned that there was no idea of taking him as an approver and so the possibility of his having made the confession in the hope of being tendered pardon could not be excluded; (3) the Magistrate who recorded the confession did not question the appellant sufficiently to satisfy himself if the appellant was going to make a statement of his own free will and (4) the appellant was remanded to police custody after the confession was recorded. The argument was that these were grave defects and the Courts below did not fully consider them, but on a consideration of the confession of the appellant and the evidence relating to it we are unable to accept these contentions. It is true that the record of confession does not contain a note that the appellant was informed that P. W. 44 who recorded the confession was a Magistrate, but the latter's evidence is clear that he did give that information to the appellant. The fact that he gave that evidence about three years after the incident on account of the inordinate delay in the disposal of this case to which reference wilt be made later, is not, by itself sufficient to' doubt the truth of his statement. However, even if on that ground it is considered unsafe to act on that statement there is the note in the confession that the appellant was produced by the Sub‑Inspector before the Magistrate at his Court and that the appellant was then placed in the custody of the Magistrate's Revenue peon and the Police Sub Inspector was directed to leave the premises. This circumstance must have made it clear to the appellant that P. W. 44 was a Magistrate. In fact the manner in which P. W. 44 questioned the appellant, had his person examined which particulars are mentioned in the record of the confession, could not have left the appellant in doubt as to who was recording his statement. It is significant that the appellant himself did not say in his statement that at the time of making the confession he did not know that he was before a Magistrate. The record of the confession also shows that the appellant was specifically asked if he was disposed to make a confession, that lie then answered that he was willing to confess, that then the accused was asked as to the details of length of time during which and the places where at, he was in the custody of the police and that he mentioned those details. He was then asked whether he had been given any inducement, threat or promise by the police or anyone else which was inducing him to make the confession and he answered in the negative. Similarly his answer to the question, "are you afraid of anyone", was in the negative. The appellant's own explanation for making the confession was not that he had hopes of being taken as an approver. He stated before the Committing Magistrate that he confessed "at the bidding of police and as my brother and uncle were brought by the police and tortured". But at the trial his explanation was as follows; "I made that confession at the instance of S. I. P. Abdul Kadir who had given me a beating, my uncle was also given threats". This Sub‑Inspector was cross‑examined with regard to the confession, but this allegation of the appellant was not put to him. He was however asked if the appellant was told that he would be taken as an approver, but he denied the suggestion. As regards the possibilty of being taken as an approver it is present in every case of more than one accused. If, as suggested, the appellant had for some reason been under the impression at the time of making the confession that he would be taken as an approver, he could not have forgotten to mention it when explaining why he had made the statement. Judging from the notes made by P. W. 44 regarding his examination of the appellant before recording his confession to which reference has already been made we have no reason to doubt his evidence that he satisfied himself that the confession was being made voluntarily. As regards the remanding of the appellant to the police custody, the Magistrate did so for the purpose of further investigation. The mere fact that the appellant was remanded to the police custody cannot be taken as proof that the confession was not made voluntarily. The contention on the third point was that it was doubtful if the empty cartridges examined by the Expert were really those found at the scene of crime. This argument cannot be said to be without force. P. W. 29 who gave the Expert opinion deposed that the used bullets were received in his office in March 1955, from the S. I. P. Hyderabad City and it does not appear that evidence was adduced about the custody of those bullets from 1950, to 1955. P. W. 29 however stated that they were examined in 1950 by one Samuel who did not appear as a witness as lie had been dismissed from the force, but the opinion expressed by him was not exhibited though P. W. 29 deposed that he knew Samuel's handwriting and had perused that opinion. Further the bullets which were examined by P.W. 29 were not produced at the trial, and the note about them in the deposition of this witness is "The three bullets are not available now as they seem to have been misplaced". It is not clear how they were mislaid. In the circumstances it is not unreasonable to doubt the identity of the bullets examined by P. W.

29. But even if the opinion to the, Expert is on this account left out of consideration the important fact remains that the appellant prior to the making of the confession took the police to a spot from where from a depth of 12 feet he dug out a '38 bore revolver with which the crime could be committed. This does support the confession so far as it relates to what he did with the weapon of offence, but the main corroboration is furnished by the approver's testimony. The confession itself is full of details and we can find no ground for disturbing the finding of the lower Courts that it is voluntary and true. From this it follows that there is sufficient evidence to sustain the conviction of the appellant. Lastly it was argued then it took nearly six years for the trial of the case to be concluded during which period the appellant was in custody and that therefore he should have been awarded the lesser penalty. This case was pending before the Committing Magistrate from the 28th August 1950 when kacha challan was received till 26th May 1955, on which date the case was committed to the Sessions. The Sessions Judge treated the delay lightly by observing that it was due to the absence of one or the other accused, but from a study of the progress report printed in the paper‑book, in which reasons for the various adjournments the case underwent in the Committing Magistrate's Court are given, it appears that the Magistrates concerned, instead of exercising an effective control over the pendency of the case, went on adjourning it as a matter of course. The manner, in which this case was handled does not credit to those Magistrates or the authorities who are expected to check the pendency in the lower Courts. One would have expected an expeditious disposal at least in the Sessions Court when the case reached it after five years in 1955, but it does not appear that it was realised even at that stage that five years had elapsed since the occurrence. From the history of the case in the Sessions Court it is seen that it was first posted for hearing to the 2nd August 1955 and on the 6th August 1955 A. P. P. applied for an adjournement on the ground that sanction of the Central Government for prosecution for offences under the Explosive Substances Act had to be obtained. The case was adjourned for that purpose to 4th October 1955 and again in September on another application of the A. P. P. to 21st November 1955. On that date on a third application of the A. P. P. the case was adjourned to the 6th February 1956, when the examination of the witnesses commenced. It is not clear why the sanction of the Central Government was not applied for earlier and why after a delay of five years prosecution under the Explosive Substances Act was considered necessary when in fact a bomb was not manufactured and the murder was committed with a revolver. The Sessions Judge appears to have granted these adjournments mechanically. It is surprising that the learned Judges of the High Court have not in their judgment even referred to this extraordinary delay in the disposal of the case. The fact remains that the appellant was in remand for nearly six years on a charge of murder and there is force in the argument that this fact should have been taken into consideration in assessing the punishment. But, as has been observed by this Court in several cases, it does not ordinarily interfere with sentences that are legal. The appellant may, therefore, approach the Provincial Government for relief in this regard. The appeal is dismissed. Appeal dismissed.