P L D 1980 Lahore 40 (PLP)

AttrAS HUSSUN, J.-Sardar appellant was tried for offences under sections 147, 556/149, 364/149, 302/149 and 201/149, P. P. C. along with six others including his two brothers for committing lurking house trespass in the cottage of Mehnga, abducting Mehnga from his cottage to murder him, for committing the murder of Mehnga deceased with fire-arm, and causing disappearance of the evidence of this murder. The co-accused of the appellant were acqiyitted by the Additional Sessions Judge, Sheikhupura, by his order dated 9th February, 1978, but the appsllant was convicted under section 302, P. P. C. and sentenced to death and a fine of Rs. 5;000, out of which Rs. 4,000 was directed to be paid to the legal heirs of Mehnga as compensation under section 544-A, Cr. P. C., or in default of payment of fine to undergo rigorous imprisonment for six months.

2. Hence this appeal.

3. The prosecution case is that the relations between the deceased and the appellant being inimical and both the parties being involved in criminal cases the appellant along with his co-accused entered the cottage of Mehnga near his Belna at about midnight on the night between the 9th and 10th of February, 1975, tied his hands behind him with a rope, forcibly abducted him and after murdering him threw him into the canal from which his dead body was recovered on the 21st February, 1975, with- his hands .tied behind him. At the time. of abduction two of the accused were arned. The appellant had a pistol in his hand while Sardar Changar his co-accused was armed with a spear. The abduction was witnessed by Mushtaq Ahmad P. W. 6.

4. After the. recovery of the dead body by the complainant and his party the statement of Muhammad Hussain P. W. 4, a brother of the deceased was recorded by Zulfiqar Hussain A. S. I. of Police Station Warburton at 11-30 a.m. who met the complainant while he was going to Police Station Saddar, Sheikhupura. As village Kharianwala is within the limits of Police Station, Saddar Sheikhupura, Zulfiqar Hussain A. S. L, P. W. 10, sent the statement of the complainant to that police station and on receiving the same, Faiz Ahmad Masood A. S. 1. recorded the F. I. R. Exh. P. A/ 1 at 2-45 p.m. the same day.

5. Post-mortem examination of the dead body of the deceased was conducted at 4-30 p.m. by Dr. Abdul Razzaq, Medical Officer, Civil Hospital, Nankana Sahib, P. W.

12. The body, at that time, was growing putrefaction. He found a fire-arm wound on the back right side of the chest near the vertebral column below the lower ventrical of the heart and multiple pellets found into the left lung and the heart. According to him, the death was immediate and the time which elapsed between death and post-mortem was about 10 or 14 days. The stomach, according to the report, contained J seer of undigested rice. 6. 'A .12 bore pistol P. 6 and a live cartridge P. 7 were recovered at the instance of the appellant on the 13th March, 1975, by digging earth inside the room of his cattle shed, and Memo Exh. P. D was prepared in the presence of Muhammad Boota, who was given up as having been won over and Murid Ahmad P. W. 9.

7. The prosecution case rests upon the evidence of Mushtaq Ahmad P. W. 6, who is said to have seen the abduction of Mehnga deceased, extrajudicial confession of the appellant before Mst. Hakim Bibi P. W. 7 (his sister and the mother of the deceased) and Ali Muhammad P. W. 8, and the recoveries of Pistol P. 6 and a live cartridge P.

7. There is no eye-witness account.

8. It is very strange in this case that no case of abduction of Mehnga deceased was registered for 11 or 12 days nor was any such report given. On the other hand, it appears from the evidence that Muhammad Hussain complainant P. W. 4, had been going to the police station to complain against the disappearance of his brother Mehnga but at that time he had no idea that Mehnga had been abducted. In his examination-in-chief P. W. 4, stated that after making inquiry from Sardar Changar and holding of Panchayat on the morning after the occurrence, he went to the police station but the "Thanedar advised me to make a search for Mehnga deceased, so that he may be traced out, if he had gone away". This advice of the Police Officer could have been given only if P. W. 4 had complained about disappearance of his brother and not about his abduction. The story that the deceased was abducted at mid-night or soon after is also not probable since the doctor P. W. 12 found half seer of undigested rice in the stomach which means that the deceased was murdered very. little time after his last meals. The complainant P. W. 4, in his cross-examination stated that "it was winter season. In winter season we take dinner normally at about Ishawela. But some times we take dinner earlier". He said that he did not know at what time Mehnga deceased took dinner on the night of occurrence. But then he admitted that the deceased had left his house for the cottage near the Belna when he was tethering his cattle heads. This is indicative of the fact that the deceased must have taken his food at most a short time before he left for the cottage near the Belna. It is well known that the tethering of the cattle could not be delayed till the midnight. It must have been near about or soon after the sunset. In these circumstances, the time of death could not be after midnight. It must have been much earlier.

9. Mushtaq Ahmad P. W. 6 supported the prosecution in his statement before the Committing Magistrate which was transferred to the Sessions file under section 265-J, Cr. P. C. about the abduction having taken place by the appellant and his party at about 12-00 midnight or 1-00 a.m. and his informing P. W. 4 about this abduction soon thereafter. But in his statement before the Court of Session, he fixed the time of abduction as 10/I1 p.m. and made a number of departures from his earlier statement. While in the first statement he had stated that the appellant had a pistol, in the statement before the Court of Session he said that the appellant had a spear. He also stated that he had first told Mst. Hakim Bibi P. W. about the occurrence. He was allowed to be cross-examined and to be confronted with different portions of his statement before the committing Magistrate which, as stated above, was transferred to the Sessions file under section 265-J, Cr. P. C., despite the objection of the defence that under that section only a statement under section 164, Cr. P. C. could be transferred. In cross-examination by the defence, the witness stated that the persons who had entered the cottage had muffled their faces. He then stated that the police tortured him and asked him during .the investigation to support the complainant's version and it was on account of this torture that he had made a statement favourable to the prosecution before the police. Thereafter 3 or 4 days prior to the statement before the committing Magistrate the police confined him in the District Jail, Sheikhupura and the statement before the Magistrate was also made under that pressure. Fazal Ahmad Masood A. S. I. P. W. l l was asked about the confinement of the witness in District Jail, Sheikhupura, in connection with this case, but he denied that he was so confined. He, however, did not rule out the possibility of his having been sent in some other case and kept in the District Jail. The defence has, however, placed on record document Exh. D. D from which it is clear that Mushtaq Ahmad P. W. 6 was confined as a witness in this case in District Jail, Sheikhupura, from 18-10-1975 to 21-10-1975 when he was released on bail for appearance in Court on the 22nd October, 1975. It was on this later date that he was examined by the committing Magistrate. It, therefore, appears that Mushtaq Ahmad was arrested on some warrant issued for his appearance in the Court and instead of allowing him bail he was sent to District Jail, Sheikhupura, where he remained confined from 18-10-1975 to 21-10-1975 and was released from there only a day before his statement was recorded. His statement that be had been sent to the Dstrict Jail for exerting pressure upon him to make a statement favourable to the prosecution in the Court of the Committing Magistrate does not appear to be unjustified. But, as stated above, the evidence of this witness even if it had been favourable to the prosecution, which it is not in the Sessions .Court which could not be believed on account of circumstances described above from which it appears that the death took place much earlier than midnight, or, to be more precise, very little time after the deceased had taken his last meals and also the fact that the police had been advising the complainant to wait "so that he may be traced out, if he had gone away". The words "if he had gone away" clearly show that the case at that time was of disappearance and not of abduction. The evidence about abduction and the deceased having been last seen in the company of the appellant could not, therefore, inspire any confidence.

10. The evidence of extra judicial confession is also, similarly, unbelievable. Though it is correct that one of the witnesses in regard to such confession is the sister of the appellant (Mst. Hakim Bibi P. W. 7) but it is the prosecution's own case that the relations between the parties were growing inimical and. there were cross criminal cases against each party. Thus Mst. Hakim Bibi would be the last person to whom Sardar would come to mcke a clean breast of his alleged offence. But there is a more formidable objection. The two statements, one of Mst. Hakim Bibi P. W. 7 and the other of Ali Muhammad P. W. 8, on this point are not uniform but are different in material particulars and though the extra judicial confession is said to have - been made a day earlier than the discovery of the dead body of the deceased, no reference to it was made in the statement of the complainant Exh. P. A. .

11. Mst. Hakim Bibi P. W. 7 stated that the appellant said to her that "Mehnga was not obeying my orders. In rage, I killed him with a pistol". He further stated that "Karam Din, Boota, Dara Changer, Niamat, Sweena, Sadoo and myself threw the dead body of Mehnga in the canal". Soon thereafter, Ali Muhammad P. W. 8 came to the house of the witness and in his presence also Sardar repeated the same confession. She was confronted with her statement before the Committing Magistrate where it was not recorded that Mehnga used to disobey the appellant nor was there any mention of the pistol in that statement; What was stated there was that "I killed Mehnga with a fire (Golf)". No reference was made before the Committing Magistrate to the appellant and his six co-accused throwing the dead body of the deceased in the canal. The witness has thus made improvements in her statement made before the Sessions Court.

12. Ali Muhammad P. W. 8, on the other hand, ascribed a much more detailed statement to the appellant which is reproduced below : "10 days. back myself, Karam Din, Sadiq, Boota. Niamat, Sweena, Sardara Changar lifted up Mehnga son of Ali Muhammad from the cottage, took him to the canal bank, murdered him there, and threw the dead body in the canal. Sardara. Jat also said, `I had a pistol, ' Sardara Changar had a spear, Sadiq had also a spear. We the three persons went inside the cottage. The lamp was on. Mushtaq Machi, was inside the cottage with Mehnga. We threatened Mushtaq Machi and asked him to keep quiet. We removed strings of khopas of bullocks and with the same tied the hands of Mehnga, and took Mehnga with us. I killed Mehnga with my pistol shot.' Sardara Jat also said, he is the only brother of Mst. Hakim Bibi while Mst. Hakim Bibi had two more sons in addition to Mehnga. Sardara Jat requested Mst. Hakim Bibi for a pardon. Sardara Jat also said, "Mehnga was adament in retaining possession of disputed land and for this reason I killed him." From the cross-examination it is clear that he had also made uncalled for improvements in his statement before the Sessions Court. However, the very fact that the statements reproduced by these two witnesses do not corroborate each other is sufficient for disbelieving them. It is seldom safe to reply upon extra-judicial confession. In fact, no reliance should be placed upon it .unless it is proved by evidence of very high and unimpeachable character. The evidence must be closely scrutinised for this purpose. Where it is impossible to ascertain the exact words used by the accused the confessions are not entitled to any weight. Des Raj v. Emperor (A I R 1928 Lab. 858). In Muhammad Alam v. The State (P L D 1960 Lab. 71) it was held that it is unsafe to base conviction unless precise words are reproduced by the witness. Also see Nazir v. The State (P L D 1960 Lab. 189). In 1qba1 Hussain v. The State (P L D 1969 Lab. 217) it was held that where the witnesses did not mention in what words the accused made confession before them and what were the reasons for such confession and the evidence about confession was discrepant it could not form the basis of conviction. In State v. Minhun alias Gul Hassan (P L D 1964 S C 813) it was held that "it is now well settled that as against the maker himself his confession, judicial or extra Judicial whether retracted or not retracted, can in law validly from sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question which relates to the weight and evidentiary value of the confession and not to its admissibility in law". It was further held that "unless a retracted confession is not corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone". In the present case, the evidence about the actual words used is contradictory and discrepant. There is no reason why such a confession should be made before these witnesses and there is no corroboration also. The evidence of extra judicial confession cannot be relied upon.

13. We are left with no other evidence except that of the recovery of the pistol. Assuming that the pistol was so recovered it would not connect the appellant with the offence, since no crime empty was recovered-nor could the pistol for this reason be sent to the Ballistic Expert for comparison. But we are not convinced about the recovery. The recovery is said to have been made on the 13th March, 1975. The appellant had been arrested on the 7th March, 1975. Boota one of the witnesses of the recovery has been given up as having been won over. The only other non-official witness is Murid Ahmad P. W. 9 who admitted that there were many houses in the street near the Haveli from which the recovery was made and many villager joined investigation. He admitted that his father Lal Din was murdered and Mehnga deceased was a P. W. in that case. He, however, denied that because of the appearance of Mehnga a3 a P. W. in the murder case of his father, be has appeared as a P. W. in this case. It is true that by itself the fact that Mehnga was a P. W. in that case would not be sufficient to disbelieve Murid Ahmad but the way his choice was made by the police officer, out of a number of villagers who bad joined the investigation, shows that he was selected for his bias in favour of the deceased. The Investigating Offcer, A. S. I. P. W. 1 cannot be relied upon as he had not only denied contrary to the other prosecution evidence that Muhammad Hussain P. W. 4 ever visited the police station prior to the first information report or met him but had also denied the presence of others at the time of recovery. He said that the only persons be found were Boota and Murid P. Ws. who joined him in investigation, while the Lambardar and B. D. Member or M. P. A. of the Ilaqa did not meet him in the village. We are not inclined to place any reliance upon the recovery of the pistol also.

15. Before parting with this case we would like to refer to an argument about the admissibility in evidence of the statement of Mushtaq Ahmad P. W. 6 made by him before the Committing Magistrate. As stated above, this statement was transferred by the learned Additional Sessions Judge under section 265-J, Cr. P. C. which reads as follows : "The statement of a witness duly recorded under section 164, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness is produced and examined, be treated as evidence in the cases for all purposes subject to the provisions of the Evidence Act, 1872 (1 of 1872)." This section makes only a statement of the witness made under section 164 admissible in evidence if it was made in the presence of the accused and be was given an opportunity of cross-examining the witness.

16. The learned counsel argued that the statement under section 164, Cr. P. C. is a statement made during the investigation while a statement before the Committing Magistrate is made during the inquiry after the investigation. The latter statement cannot, therefore, be held to be a statement under section 164 nor can it be transferred to the Sessions file for being treated as an evidence.

17. Section 164(1) reads as follows :- "Any Magistrate of the first class and any Magistrate of the Second Class specially empowered in this behalf by the Provincial Government may, if he is not a police officer record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial." The section clarifies that only a statement made before the commencement of the inquiry or trial before a Magistrate is a statement under section

164. Clearly, therefore, a statement made at the inquiry before the Committing Magistrate cannot be held to be such statement. We, therefore, agree with the argument of the learned counsel that section 265-J does not make al statement before the Committing Magistrate admissible as evidence at the trial in the Court of Session.

18. Section 265-J is a substitute for section 288 of the Code which is now omitted by the Law Reforms Ordinance, 1972.. This section was as follows : "The evidence of witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872." Now Chapter XVIII related to the inquiry before the Committing Magistrate and it has also been omitted by the Law Reforms Ordinance, 1972.

19. It is evident, therefore, that while section 288 made a statement before the Committing Magistrate admissible in evidence before a Court of Session in a Session trial, section 265-J which is now in force, makes only a statement under section 164 admissible. The statement before the Committing Magistrate not being a statement under section 164 could not be transferred to the Sessions file. The statement made by Mushtaq Ahmad in that Court is, therefore, inadmissible.

20. We allow the appeal of the appellant and acquit him. The sentence of death is not confirmed. M. A. x. Appeal accepted.