P L D 1976 Lahore 237 (PLP)

MUHAMMAD SIDDIQ, J.‑According to the prosecution, the brief facts of the case are that on 14‑9‑1972, at 6 a.m. Muhammad Shaft deceased left his house and came to Chowk Bazar where he used to sell ice on a phhatta. This was near the shop of Shamshad P.W. These places were situated near the mosque known as Wali Muhammad mosque in Multan City. Ghulam Nabi P.W., father of the deceased, after attending to his normal work at his house, came to this place at about 8 a.m. but found his son Muhammad Shad deceased absent. He enquired from Shamshad P.W. who told him that at about 6‑30 a.m., Muhammad Yamin appellant had come there and had taken away the deceased with him. He further told him that the deceased had left his sue with him. Ghulam Nabi P. W. then went to the shop of Muhammad Yamin appellant which was situated in Kabutarmandi where he used to sell ice. He did not find the appellant there. He, therefore, contacted the father of the appellant who told him that Muhammad Yamin appellant had gone out of Multan to purchase chickens. Ghulam Nabi continued his efforts, but could not trace his son Muhammad Shaft deceased. Next day on 15‑9‑1972, Ghulam Nabi while searching his son, met Muhammad Akbar and Muhammad Rafiq P.Ws. near the Habib Bank close to Police Station Kup, who informed him that they saw the appellant taking away the deceased at about 7 a.m. Ghulam Nabi P. W. then lodged the F. I. R. (Exh. P.D.) at 2‑30 p.m. on 15‑9‑1972 at Police Station Kup naming the present appellant as the suspect. After recording the report S.H.O. Saeedullah Khan P.W. reached the spot and visited the phhatta of the deceased in Chowk Bazar. He recorded the statements of the P. Ws. On the same day, the appellant is alleged to have approached Muhammad Ali P.W. and confessed before him that he had murdered Muhammad Shaft deceased and that after murdering him, threw the dead body in Muzaffarbad Canal after tying it with a rassi. As regards the motive, the appellant told this witness that he had demanded the hand of Mst. Saeeda Begum, niece of Ghulam Nabi P. W., for himself, but it was refused by him. After confessing his guilt, the appellant asked Muhammad Ali to help him by producing him before the police. According ly, Muhammad Ali P.W. took the appellant to Police Station Kup where he was arrested by S. I. Saeedullah Khan. On search of his person, the Investi gating Officer recovered one key (Exh. P. 1) from the pocket of his shirt which was taken into possession vide Memo. Exh. P. A. The appellant, then led the police to his house situated in Hannu‑Ka‑Chhaja a Mohallah of Multan City. From the chaubara of that house he opened a box with key (Exh. P. 1) and produced blood‑stained chhuri (Exh. P. 2) which was taken into possession and sealed into a parcel vide Memo. Exh. P.B. Lock (Exh. P. 3) which was opened by the appellant with key (Exh. P. 1) was also taken into possession by the police vide Memo. Exh. P. C. The appellant then led the police to the ` recovery of the dead body of Muhammad Shaft deceased from Shujabad Canal near burji No.

77. The dead body was floating at that time. It was taken out from the canal and was identified by Ghulam Nabi P. W. as that of his son Muhammad Shaft deceased. The Investigating Offcer prepared the injury statement (Exh. P. K.) and the inquest report (Exh. P. L.) of the deceased and sent the dead body to the mortuary for post‑portem exami nation. After the post‑mortem examination F. C. Rabnawaz produced kachha (Exh. P. 4) belonging to the deceased which was taken into possession vide Memo. Exh. P. E. He also produced a phial containing the swabs of the deceased. After the usual investigation, the police challaned the appellant under section 302, P. P. C. The appellant was tried by the Additional Sessions Judge, Multan, who vide the impugned judgment dated 23‑12‑1974 found him guilty under section 302, P. P. C. and sentenced him to death subject to confirmation by this Court. The appellant has challenged his conviction and sentence through the present appeal. The case is also before us under section 374, Cr. P. C. for confirmation of the death sentence awarded to him by the trial Court. This judgment will dispose of the criminal appeal as well as the Murder Reference.

2. Dr. Muhammad Iqbal on 16‑9‑1972, performed the post‑mortem examination on the dead body of Muhammad Shaft and found the following injuries on it :‑ (1) An incised wound, 5" x 3" on the front of neck at its root vertebra deep. The 5th cervical vetebra had a cut on the middle of the body. (2) Mark of ligature corresponding to the rope on both the knees. (3) A contusion 2 1/2" x 2" on the inner sider of the left knee. In the opinion of the doctor death was due to haemorrhage and shock caused by injury No. 1 which was sufficient to cause death in the ordinary course of nature. Injury No. 1 was caused by a sharp‑edged weapon, while the rest were caused by a blunt weapon. Probable time between injuries and death was immediate and between death and post‑mortem examination it was about sixty hours.

3. The appellant when examined under section 342, Cr. P. C. denied the prosecution allegations. He, however, admitted that he is related to Ghulam Nabi P. W. being his nephew. He also admitted that key (Exh. P. 1) was taken from his person on 15‑9‑1972. When asked why this case was made against him, he stated that due to old enmity with Ghulam Nabi on account of domestic matters, this false case was concocted against him. He, however, produced no evidence in defence.

4. In support of its case, the prosecution relied upon the extra judicial confession allegedly made by the appellant before Muhammad Ali (P. W. 12) corroborated by the motive, the medical evidence and the fact of the deceased last seen in the company of the appellant and the recovery of the dead body from the canal at the instance of the appellant. The trial Court believed the prosecution evidence and convicted and sentenced the appellant as mentioned above.

5. The strongest piece of evidence relied upon by the prosecution is the alleged extra judicial confession made by the appellant before Muhammad Ali P. W. This witness has stated that on 15‑9‑1972, at 3 p .m., the appellant came to him at his house and told him that he had murdered Muhammad Shafi deceased, son of Ghulam Nabi P. W., and thou after tying his dead body with a rassi, threw it in Muzaffarabad Canal. The appellant further told the witness that he had demanded the hand of Mst. Saeeda Begum, niece of Ghulam Nabi P. W., for himself, but it was refused by the father of the deceased and this was the motive why he had killed his son Muhammad Shafi deceased. The appellant admitted his guilt and sought the help of the witness. After this, Muhammad Ali P. W. took the appellant to Police Station Kup and produced him before Saeedallah Khan Investigating Officer who arrested him. The defence has not been able to point out any material on the record or even circumstances to show that Muhammad Ali P. W. had any animosity or motive to falsely implicate the appellant in this case. No doubt, this witness is neither a Lambardar, nor a B. D. Member and had no connection with the police and from that point of view he may not be able to help the appellant before the police, however, we have to read the mind of the accused. He may have thought fit to approach this witness for this purpose. There is nothing on the record to show that this man was a stock witness of the police and had been appearing for the prosecution in the past. In fact, no such question has been put to this witness. We have minutely gone through his statement and find nothing against him either to show his enmity with the appellant or interest in the complainant party. He had no motive whatever to falsely implicate the appellant in a murder case. Accord ing to the prosecution, it was Muhammad Ali P. W. who produced the appellant before the Investigating Officer at the Police Station where be was taken into custody by the said Police Officer. There is no other way suggested by the defence how and in what circumstances the appellant was arrested by the police. In the absence of any material against him, we have reached the conclusion that he was rightly believed by the trial Court and we also endorse the same.

6. The prosecution relies upon the statements of Shamshad (P. W. 8), Muhammad Akbar (P. W. 9) and Muhammad Rafiq (P. W. 10) who claim to have last seen the deceased in the company of the appellant. Shamshad P. W. claims to be present at his shop situated near Wali Muhammad Mosque where the deceased also used to sell ice on a phhatta. His shop was close to the phhatta of the deceased. On 14‑9‑1972, at about 6‑30 a.m. this witness saw the appellant taking away Muhammad Shafi deceased with him. Muhammad Akbar and Muhammad Rafiq P. Ws. have stated that on the same day at about 7 a.m. they saw the present appellant and the deceased going, together towards the house of the appellant situated in Hannu‑Ka, Chhaja. Next day, namely, on 15‑9‑1972, these witnesses told Ghulam Nabi P. W., father of the deceased, that they saw the deceased going with the appellant on 14‑9‑1972. After going through the statements of these three witnesses, we find that they have told the truth. No doubt there are certain contradictions in their statements, but they are not of serious nature which may falsify their claim. They have no motive to falsely implicate the appellant. It is not denied that Shamshad P. W. had his shop close to the phhatta where Muhammad Shafi deceased used to sell ice. His presence on the spot at the relevant time was quite natural and in view of his shop being adjacent to the deceased's phhatta, he would be in a position to see anyone coming to the deceased and taking him away. This witness has denied the defence suggestion that the deceased was his friend. He has in categorical terms stated that he saw the present appellant taking away the deceased with him. In the absence of any enmity or motive against these witnesses, especial ly Shamshad, it can safely be inferred that these three witnesses saw the deceased in the company of the present appellant on 14‑9‑1972 at about 6 or 7 a.m. After that, the deceased was not seen alive. The prosecution, therefore, can rely upon this circumstance of last seen to corroborate the extra judicial confession of the appellant made before Muhammad Ali P. W.

7. According to the prosecution, the motive against the appellant was that he had demanded the hand of Mst. Saeeda Begum, daughter of Lai (brother of Ghulam Nabi P. W.). Lai had died 10/12 years prior to the occurrence and, therefore, his brother Ghulam Nabi P. W. brought up his children and they also used to reside with him. 8/10 days before the occurrence, Ghulam Nabi P. W. had finally refused to marry said Mst. Saeeda Begum with the appellant. As mentioned above, Ghulam Nabi P. W. is the real uncle of the present appellant. The defence has not been able to bring on record any material to show the enmity of this witness against the appellant to falsely implicate him in this case. Judged from ordinary human conduct point of view, no one would like to involve his own nephew in a murder case. In this case also, the learned defence counsel has not been able to convince us why Ghulam Nabi should falsely implicate the appellant in this case. He has denied the defence suggestion that the father of the appellant was his partner or he had any business dispute with him. Since Mst. Saeeda Begum and other members of the family of her father Lai were living with this witness for the last more than ten years and he had brought up the children of his brother Lai, he alone may be competent to marry or not to marry her with the appellant. His refusal to marry her about 8/10 days prior to the occurrence, therefore, must have annoyed the appellant, because after his refusal, it could not be possible for the appellant to marry said Mst. Saeeda Begum. Thus, the prosecution has amply proved the motive against the appellant through this witness.

8. Another corroborative piece of evidence relied upon by the prosecution is the recovery of the dead body of Muhammad Shafi deceased. As mentioned above, the deceased was missing since the morning of 14‑9‑1972. Shamshad, Mutiammad Akbar and Muhammad Rafiq P. Ws. had informed Ghulam Nabi, father of the deceased, that they had seen the deceased in the company of the appellant on 14‑9‑1972 at about 7 a.m. In spite of best efforts of the father of the deceased, he could not trace out the deceased or get any clue about his dead body. He lodged the F. I. R. on 15‑9‑1972 at 2‑30 p.m. and in that report also he suspected the appellant as the assailant, but it was not known where the dead body was. It was on 15‑9‑1972 after Muhammad Ali P. W. had produced the present appellant before the Investigating Officer that it was revealed that the deceased was murdered by the present appellant. After this disclosure the appellant led to the recovery of the dead body. Before that, nobody knew that the dead body was thrown in the canal. The appellant took the party to the canal, pointed out the place where he threw the dead body and then the party searched the dead body and found it in the Shujabad Canal near burji No.

77. After going through the various pieces of evidence, we are of the view that earlier nobody knew where the dead body was. It was after the arrest of the appellant that he disclosed this fact and actually led to the recovery of the dead body from, the said canal. The dead body was actually recovered and identified by Ghulam Nabi P. W. as that of his son Muhammad Shall deceased. In these circumstances, the prosecution can safely rely upon the recovery of the dead body of Muhammad Shafi at the instance of the appellant as a corroborative piece of evidence.

9. The learned State Counsel also tried to rely upon the recoveries to corroborate the extra judical confession. We are, however, not inclined to believe the recoveries in this case. According to the prosecution, the appellant after his arrest took the police to his house where from his chaubara he opened a box with key (Exh. P. 1) and produced blood‑stained chhuri (Exh. P. 2) which was taken into possession and sealed into a parcel vide Memo. Exh. P.B. ,This Memo. is dated 18‑9‑1972 and is supported by Muhammad Ilyas (P. W. 6) and Ghulam Nabi (P. W. 7). According to A. S. I. Faiz Muhammad (P. W. 2), on 16‑9‑1972 the Investigating Officer,' Saeedullah Khan, deposited two sealed parcels which this witness kept in Police Malkhana intact. Accord ing to the prosecution,one of these parcels contained this blood‑stained chhuri (Exh. P. 2). This witness further states that he handed over one sealed parcel of phial to F. C. Manzoor Hussain for onward transmission to the office of the Chemical Examiner, Lahore, on 4‑10‑1972. As regards the other parcel relating to the said blood‑stained chhuri (Exh. P. 2) he has stated that on 5‑11‑1972, he delivered this parcel to F. C. Noor Muhammad for onward transmission to the said office at Lahore. According to the prosecution, this recovery was effected on 18‑9‑1972, while according to this witness it was deposited with him on 16‑9‑1972. We have seen the original and feel that the date of this Memo appears to have been tampered with. According to the defence counsel, the original date was 15‑9‑1972 which has been changed into 18‑9‑1972. Further we find that the prosecution has offered no expla nation whatever why this parcel was kept in the Malkhana till 5‑11‑1972 when one parcel was sent to the Chemical Examiner much earlier on 4‑10‑1972. The delay in the despatch of this parcel also casts serious doubt against the prosecution. In these circumstances, we are not inclined to attach much importance to this recovery of alleged blood‑stained chhuri (Exh. P. 2) at the instance of the appellant.

10. After hearing the arguments of the counsel for the parties and going through the relevant material available on the record, we are convinced that the prosecution has proved the guilt of the appellant beyond reasonable doubt. He has been rightly convicted and sentenced by the trial Court. We also maintain his conviction under section 302, P. P. C. for the murder of Muhammad Shafi and confirm the sentence of death awarded to him by the trial Court. Consequently, this appeal fails and the same is hereby dismissed.

11. Before parting with this case, we would like to point out the carelessness of the Committing Magistrate as well as of the trial Court. After the prosecution had closed its evidence, the statement of Muhammad Yamin accused was recorded by the Committing Magistrate both in English as well as in Urdu. So far as the statement in Urdu is concerned, both the questions and answers of the accused are on the record. However, as regards his state ment in English, only questions are typed, but their answers are missing. It is surprising that after the question the word 'Ans :' is typed, but then the space is left blank and there is not a single answer written or typed in all the questions put to him. At the end of the statement is the following seal below which is shown the thumb‑impression of the accused According to this, the statement of the accused was correctly recorded ad it was read out and explained to hint, It is surprising that in the absence of any answers, what possibly could be read out and explained to the accused. It shows that all this was done mechanically by the subordinate staff' and the Presiding Officer just put his signatures without caring to read that statement. When the statement of the accused was recorded by the trial Court, the first question put to him was as under :‑ "Q.

1. Did you make the statement dated 20‑3‑1973 before the Com mitting Magistrate (now read out to you) and is it correct ? A. Yes." It is un-understandable as to what could be read to the accused when his answers are missing from that statement. If the trial Court had seen the statement of the accused recorded by the Committing Magistrate in English, he should have pointed out the omission to the Magistrate concerned. It isl well settled now that recording of the statement of an accused person particularly in a murder case, is not mechanical but most solemn and ,t important part of the proceedings of a criminal case and, therefore, the Court concerned is required to record the statement of an accused person more carefully and consciously. Both the Committing Magistrate as well as the trial Court should be warned to be more careful in future in such judicial proceedings. S, Q. Appeal dismissed.