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Petitioner: NAQIBULLAH AND Anons VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Malik Muhammad Akram, Sheikh Anwarul Haq, Durab Patel Title: NAQIBULLAH AND Anons vs THE STATE Case No.:Criminal Appeal No. 1-P of 1977 Criminal Appeal No. 23 of 19751 Murder
JUDGMENT
Reported As: PLD 1978 Supreme Court 21 Result: Appeal accepted Judgment JUDGMENT MUHAMMAD AKRAM, J.-This is an appeal by special leave from the ,judgment and order dated 4th of November 1975 passed by a Division Bench of the Peshawar High Court upholding the convictions of Naqibullah and Wasal Khan appellants and confirming the death sentences awarded against them each under section 302/34, P. P. C., in the circumstances stated below. The F. 1. R. About this incident was registered at the Police Station Lahore. District Mardan, at the instance of Mst. Awal Jan. She was residing with her son Abdur Rahman deceased in village Hund situated near the bank of river Sind. According to her after dinner on the night of 19-7-1974, Wasal Khan accused called at their house and took out Abdur Rahman deceased with him to the river bank. After some time Wabeedullah (father of Naqibullah accused) resident of the village came to her and enquired about Abdur Rahman. She told him that he had gone out with Wasal accused. On this he replied that there was some noise at the river bunt. He then left fur the river and she also followed him. At the river bank she saw the dead body of Abdur Rahman lying there with a number of persons present there. In the presence of those persons she expressed hen suspicion that Wasal was responsible for the murder of her son. She then left for the Police Station situated at a distance of about six miles and dodged the report about the incident at 00-30 hours on 20-7-1974. She admitted in the report that they had no previous enmity with Wasal and she vas unable to say as to why her son was murdered. 2. A. S. I. Fazal Rabbi Khan (P. W. 9) was deputed for the investi--gation of the case. He proceeded to the spot, recovered the blood-stained earth and a torch (Exh. P. 2) from the spot. After the
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completion of the formalities at the spot he despatched the dead body to the mortuary for the post-mortem examination. 3. On 21-7-1971 the Investigating Officer arrested Wssal accused. As a result of the interrogation of the accused by P. W. 2 Mahboob A.I Khan, S. D. P. O., Swabi, in the presence of the Investigation Officer, they also decided to arrest Naqibullah and according to him he was arrested on 22-7-1974. 4. Dr. Akhtar A.I Khan (P. W, 1) Medical Officer, Incharge Rural Health Centre, Kunda performed the post-mortem examination on the dead body of Abdur Rahman deceased. It had four stab wounds, two on the chest, one on the abdomen and one above the left arm pit. On internal examination the Doctor found that the stomach, sma ll and large intestines of the deceased contained some solid contents. In the opinion of the Doctor the death was caused due to shock and hemorrhage as a result of the injuries to the vital organs like heart and lung caused by a sharp-edged weapon. On 22nd of July 1974 at 3-00 p.m. The same Doctor also examined Naqibullah accused who had three simple injuries on his left hand. In the opinion of the Doctor one of these was caused by a sharp- edged weapon, and the remaining two were more contusions caused by blunt weapon. Their probable duration was stated to be 72 hours. But in his cross-examination at the trial the Doctor clarified teat the probable duration of the injuries on Naqibullah accused could be approximately within 36 to 72 hours from the time of his examination. 5. On the 25th July 1974 Wasal accused, while .In custody of the Police, was produced before Syed Akram Shah (P. W. 6) who was at the relevant time Magistrate, First Class/E. A. C. (1), Swabi. The accused made a statement (Exh. P. Z.) recorded by the Magistrate and confessed the guilt. He admitted that in connivance with Naqibullah accused they had murdered Abdur Rahman deceased at the river bank with a chhuri which was thrown away in the river. Similarly, on the 27th of July 1974, Naqibullah accused was also produced before the same Magistrate and he too made a statement (Exh P. Y) recorded by the Magistrate confessing the guilt. 6. At the trial no eye-witness of this occurrence was produced in evidence. P. W. 6 Syed Akram Shah Magistrate was produced to support the two confessional statements of the accused recorded by him. Mil. Awal Jan (P. W. 7) deposed that Wasal and Naqibullah accused were her co--villagers. A sister of Naqibullah accused was engaged to her son Abdur Rabman deceased a year prior to the occurrence. This happened in the absence of Naqibullah accused who was at Karachi at the time in connection with his business. He was not at all happy over this engagement of the deceased with his sister and nursed the grievance. The witness further deposed that en the night of the occurrence, she and her deceased son were present in their house when at about Khuftan time Wasal accused came and called out for his son She responded to the call and upon query Wasal accused told her that they intended to go to the river. On this her son took a torch (Exh. P. 2) with him and accompanied Wasal accused. After an hour or so. Waheedullah, father of Naqibullah accused came to her and enquired about Abdur Rahman deceased. She replied that Wasal accused had taken him out to the river side. On this he informed her that a quarrel had taken place on the river side. So that she along with Waheedullah then rushed towards the river. On reaching there they saw Abdur Rahman deceased lying murdered. Many people of their village were present around the dead body. She stayed there for about an hour with the dead body of hereon. She was then taken to the Police Station by Asim Ullah and others to lodge the report (Exh. P. A.). Asim Ukiah is the uncle of Naqibullah accused. In the village, later on, she, was told that Naqibullah and Wasal both had committed the murder of her son. In her cross---examination she stated that the spot where her son was found murdered was at a distance of 300/400 paces from her house. 7. At the trial the Public Prosecutor gave up P. Ws. Banaras, Shamros0. Mir Sultan, Amir Said and Zahid as having been won over.
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8. Wasal Khan accused in his statement recorded by the Committing Magistrate denied the charge and pleaded that he was innocent and had been falsely implicated. He denied having confessed his guilt before the Magistrate. Similarly in his statement before the Sessions Judge be denied the charge and pleaded that he was innocent and had been falsely implicated. He denied that Naqibullah co-accused was his associate. He admitted that he was arrested on 21st of July 1974 and was given a beating and was asked to make a confessional statement before the Magistrate. It was on account of torture and under duress at the hands of the Police that he was forcibly compelled to make the statement thumb marked by him. According to him the P. Ws. Have deposed against him because of suspicion, and rumour. Naqibullah accused also made similar statements before the Committing Magistrate as well as in the Court of the Sessions Judge. At the trial he admitted that his sister was engaged to Abdur Rahman deceased about a year prior to the occurrence and stated that their family relations were cordial with the deceased and that he had no grudge against him on account of this engagement. He even participated in the funeral and condolence of the deceased. He stated that he did not make any voluntary statement and that the confession (Exh. P. Y) was obtained by the police under duress and torture. When questioned about the injuries on his person he stated that he was a shop-keeper and was opening a box of tea leaves with a hammers and in the process sustained the injuries on his left hand. The accused did not adduce any evidence in defence. 9. On the 20th of January 1975, the Sessions Judge, Mardan, convicted the two accused and sentenced them each to death under section 302/34, P. P. C. For the murder cf Abdur Rabman deceased. He observed that Mst. Awal Jan (P. W.) did not attribute any motive for the crime in the report lodged by her. However, in her statement at the trial she stated that her son was done to death by Nagibullah accused in connivance with Wasal accused, because the former was annoyed at the betrothal of his sister to the derxased. In this connection he relied on the judicial confession of Wagal accused coupled with the circumstance that on the fateful night he was last seen alive with the deceased. When as stated by Me. Awal Jan he took him to the river bank where he was found murdered. Similarly the Court relied on the judicial confession made by Naqibullah accused corrobora--ted by the fact of the injuries found on his hand and rejected his explanation to the effect that he had sustained them while opening a box of tea leaves. In the opinion of the Court these injuries were suggestive of the "factum of grappling between the deceased and the accused." The learned Sessions Judge was satisfied that the two Judicial confessions were voluntary and had not been procured under torture or duress. 10. On appeal the High Court concurred with the trial Court in .Holding that tic two confessional statements were voluntarily male by the .Accused and were not procured from them under coercion and duress. In that connection the Court relied on the evidence of Syed Muhammad Akram Shah (P. W. 6) Magistrate who had satisfied himself about the voluntary nature of the judicial confessions and complied with all the necessary requirements of the law before recording them. The confession made by Wasal accused was corroborated. By the circumstance that the deceased was last seen alive in the company of the accused as deposed to by Mst. Awal Jan. In this connection however, the High Court observed that as the trial the attention of Wasal accused was not called to this circumstance appearing -against him In the evidence and he was not asked his, explanation about it fn the course of his statement as an accused person. But then in the opinion of the High Court this was a mere irregularity which did not result in any prejudice to the accused in his defence and did not therefore, materially .Affect the result. In the opinion of the High Court the judicial confession by Naqibullah was sufficiently corroborated by the fact of the injuries found on him and that these were "the result of feeble struggle which the deceased .Could put up or may be that these were caused while Naqibullah was using his weapon against the deceased."
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According to the post-mortem report of the deceased, the stomach contained semi-digested contents and this .Circumstance also corroborated the prosecution version that deceased was taken away at about khuftan time. On these findings, therefore, the High Court dismissed the appeal and confirmed the death sentences against -both the accused. 11. In this case at the petition stage this Court observed that this was an unwitnessed clime and the conviction of the two accused solely rested -upon their confessions recorded by the Magistrate four days after the arrest of Wasal and five days after the arrest of Naqibullah accused. Both these confessions were subsequently retracted. The Magistrate, at the tithe of -recording the confessions did not ask the two accused as to whether they had been tortured key the police. In the first Information report only Wasal Khan accused was mentioned as the suspect. Moreover the motive for the crime was concerning Naqibullah alone and that too appeared to be rather, ,feeble- Also out of the four persons named in the two confessions, who were told by the accused to give out that the deceased had been drowned an the river three were given up by the prosecution and the fourth one was never produced in the evidence. This Court, therefore, granted leave to appeal to the accused for further examination of these features of the case. 12. In this case before us the convictions of the two accused are largely based on their respective confessional statements which were afterwards retracted by them in the course of the commitment proceedings as well as at the trial in the Sessions Court. Syed Akram Shah (P. W. 6) testified about the two confessions recorded by him at the instance of Naqibullah and Wasal accused. He deposed that Wasal accused was brought to his Court room on the 25th of July 1974 at about 11-30 a.m. He turned out all the police personnel and the P. S. I. From his Court room, and disclosed his own identity to the accused. He warned him that the was not bound -to make the confession and that any such statement, if made, would be used against him In evidence. He removed the handcuffs of Wasal accused ,and gave him a seat at the dais. He allowed sufficient time to him to ,ponder and think over the matter. Once again he asked him if he was ;prepared to make the confessional statement voluntarily to which he replied in the affirmative. The Magistrate also satisfied himself about it. He told the accused that whether he made the confessional statement or not he would be remanded to .Jail and shall not be made over to the police cuqtody. He then asked the questions prescribed in the form "Memorandum of Enquiry" for the record of a confession by an accused person and record of answers. Wasal accused then made his confessional statement in Pushto and the Magistrate recorded it by translating the same in Urdu. It was again translated back into Pushto and read over to the accused who admitted the sauce and thumb marked it in token of its correctness. To the confessional statement made by Wasal accused is also appended the requisite certificate issued by the Magistrate in accordance with law. In the cross---examination of the witness it was elicited from him that Wasal accused had told him that he was under attest since the 21st of July 1974. But he did not put any question to the accused if he had been tortured by the police since his arrest. On 27-7-1974 at 12-30 p.m. Naqibullah accused was produced before him and after complying with the necessary requirements and having taken the usual precaution he recorded his confession (Exh. P. Y.). In h18 case also the Magistrate admitted that according to Naqihullah accused he was under arrest since 21-7-1977 (seven days) when his confession was recorded on the 27th of July 1974. But he did not specifically ask the accused if he had been tortured. The Magistrate deposed that he did not notice any injury on the person of Wasal and Naqibullah accused nor did he examine their bodies for the purpose. According to him evidently there were no injuries on them nor did they complain to him about any torture. 13. In his confessional statement (Exh. P. Z.) Wasal Khan disclosed that he had friendly relations with Abdur Rahman deceased for about three months and they often used to go out together (in the evening) for bath in the river. About 21 days prior to the occurrence Naqibullah accused told him
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that he (Naqibullah) would give the hand of his sister in marriage to him in case he were to bring Abdur Rahman deceased to the river bank. Accordingly, on the 20th of July 1974 at khuftan time at about 8/9 p.m. He called out Abdur Rahman deceased from his house and took him so the river. Naqiballah accused was already present there and he gave three blows to Abdur Rahman with a chhuri. The chhurf then fell from his hand. On this he (Wasal accused) picked up the chhuri and gave a blow to Abdur Rabman at his back and threw the chhuri in the river. At the time Banaras, Zabid, Shamrose anti Nowahad were sitting on the river bang at a distance of about 25 paces. On hearing the cries raised by Abdur Rahman deceased, they came to the spot. But Naqibullah told them that in case any body were to enquire about Abdur Rahman they should inform hiss that he hart been drowned in the river. The two then left for the village leaving the dead body behind at the spot. In the end Wasal added that a sister of Naqibullah had been betrothed to Abdur Rahman deceased, but that Naqlbul1ah did not like it and had, therefore, murdered him. 14. The confessional statement (Exh. P. Y.) of Naqibullah accused !s almost similar to that made by Wasal Khan accused. He stated that about a year back his parents bad of their own accord betrothed his sister Mst. Sikander Jan with Abdur Rahman deceased who was a Gujar by case. He was annoyed over his betrothal. About four or five days prior to the occurrence he asked Wasal accused to bring Abdur Rahman deceased to the bank of the river on the pretext of having a bath there, and that he shall murder him and promised to give the hand of his sister to him. Accordingly, Wasal brought Abdur Rahman deceased with him from his house. At the river bank Naqibullah attacked Abdur Rahman deceased with a chhuri and gave three blows to him. But the chhuri then fell from his hand. On this Wasal accused picked up the chhuri and gave a blow to the deceased at the back and throw the chhsal in the river. At the time Banaras. Zahid, Shamrose and Nowahad were present at the river bank at a distance of 20/25 paces from the place of occurrence. He told them that if anybody were to enquire about Abdur Rahman deceased they should tell him that he bad been drowned in the river. Naqibullah accused also admitted to have changed his clothes as those worse by him got stained with blood. 15. Wasal Khan accused was arrested on the 21st of July 1974 and he remained in the police custody until the 25th of July 1974 when his confession was recorded by the Magistrate. Before the Magistrate Naqibullah accused stated that he was under arrest since the 21st of July 1974 for seven days when he was produced before the Magistrate on 27-7-1974 and his confession was recorded. P. W. 2 Mahboob A.I Khan deposed that he was the S. D. P. O., Swabi at the time and he arrested Naqibullah accused on 22.7-1974 and partly investigated the case. But according to the judicial confession of Naqibullah recorded on 27-7-1974 he was arrested since 21-7-1974 and had remained in Police custody for seven days. On this record the prosecution has failed to furnish any explanation for this discrepancy. It seams probable that he was in fact detained for interrogation by the Police a day before be was formally arrested on 22-7-1974. This circumstance, therefore, raises a suspicion that the Police did not quite act fairly In the investigation of this case against him. The prosecution has also failed to give any explanation for the considerable delay in the production of the two accused before the Magistrate for the purposes of recording their confessions. It is rather unfortunate that even the learned Magistrate did not satisfy himself about the causes of this delay before proceeding to record the two confessional statements in question. 16. P. W. 6 Syed Akram Shah, the learned Magistrate deposed to have taken all necessary precautions to ensure and was satisfied that the two confessional statements recorded by him were voluntarily made by the accused. He also appended his memorandum to that effect with the two confessions. 'r He admitted in his cross-examination that before recording the two confessions he did not put any question to the accused as to whether they had been tortured by the Police during their arrests. He did not examine their person in order to satisfy himself if they had marks of violence on their bodies. He however, added that apparently there were no injuries on them.. Nor
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did they complain to him about any such torture. As already stated he did not even enquire into causes for the delay in the production of the two accused before him for recording their confessions in question. Moreover he did not specifically enquire from the accused the reasons for mating the confessions. It may be due to an inadvertent lapse on his part. But these circumstances are by no means sufficient to hold that the learned Magistrate had failed to fully satisfy himself before recording the two confessions that they were free and voluntary. He appears to have taken the precautions in order to assure himself that the confessions were voluntarily made by the accused without any inducement, threat or promise and there is no reason not to believe his evidence, on the point. 17. In this connection the two accused in their respective statements recorded by the Committing Magistrate denied having confessed their guilt before any Magistrate. On the other band Wasal accused in his statement recorded by the Sessions Judge stated that he was arrested by the police on 21-7-1974 and was given beating and was asked to make the confessional statement before the Magistrate. It was on account of the torture and duress of the police that he was forcibly made to give a statement on which his thumb impression was obtained. Similarly, Naqibullah accused stated that he did not voluntarily make any such confessional statement (Exh. P. Y.) and that it was obtained from him on account of police torture and duress. Apart from this inconistent stand taken by them in the two Courts, they did not adduce any evidence in defence. Moveover, the prosecution examined, the two Investigating Officers namely Fazal Rabbi Khan A. S. I. (P. W. 9) and Mahboob A.I Khan, S. D. P. O. (P. W. 2) but not even a suggestion was put to them in their cross- examination to show that the two confessions B were procured from tale accused by torture and were involuntary. Even from the cross-examination of Syed Akram Shah Magistrate (P. W. 6) it does not appear that the two confessions were caused by any inducement, threat or promise. They cannot, therefore, be struck down as irrelevant under section 24 of the Evidence Act, 1872. 18. This section expressly lays down that a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any Inducement, threat or promise proceeding from a person in authority and afford In the opinion of the Court reasonable ground for supposing that by making i!, he would give any advantage or avoid any evil of temporal nature in reference to the proceedings against him. In turn the procedure for recording a confession is laid down in section 164 of the Criminal Procedure Code. In this connection, in particular subsection (3) of section 164 of the Code provides that a Magistrate shall, before recording any such confession explain to the person mailing it that be is not bound to make a confession and that if he does so it may be used as evidence against him anal no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily. 19. Before us In finding faults with the two confessions (Exhs. P. Y. And P. Z.) the learned counsel for the appellants strongly relied on the reported case of a Division Bench of the West Pakistan High Court in Mst. Said Begum v. The State (PLD 1958 Lah. 559) and argued that the learned Magistrate in recording them had failed to take all the necessary precautions required of him in order to fully satisfy himself that they were voluntarily made by the accused and were not procured from them by any inducement, threat or promise. In that case a mention was made of the instructions contained in Chapter 13 of volume III of the West Pakistan High Court Rules and Orders meant for the guidance of the Magistrates in recording the confessions. These go to provide that in addition to complying with the requirements of section 164(3) of the Code of Criminal Procedure, the Magistrate should put such further questions as may be necessary in order to satisfy himself that the accused person was acting voluntarily. For this purpose he should, Inter alia, bear in mind the period during which the accused person was kept in police custody and make stare that his statement wag not the result of undue influence or ill-treatment brought to bear on him. Besides
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putting the set questions the Magistrate is required to make a real endeavour to find out the voluntary nature of the confession. The Court emphasised that it is a solemn duty cast on the Magistrate which should be performed with great care and caution and not mechanically or casually. In that care the Court elaborated the procedure in general to be followed by the Magistrates in recording a confession and the Magistrates were advised to also put the following questions to the accused in the discharge of their duties :- (1) For how long he has been with the police ? (2) Has any pressure been brought to bear upon him to make a confession ? (3) Has he been threatened to make a confession ? (4) Has any inducement been given to him ? (5) Has be been told that he will be not made an approver ? And (6) Why was…
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