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Petitioner: MUHAMMAD RAFIQUE VS Respondent: The STATE
Court Name: Supreme Court of Pakistan Judge(s): Qaisar Khan, Sheikh Anwarul Haq, Muhammad Haleem Title: MUHAMMAD RAFIQUE vs The STATE Case No.: Criminal Appeal No. 106 of 1976 Criminal Appeal No. 429 of 1974 Date of Judgment:1977-05-15 Reported As: 1977 SCMR 457 Result: Appeal dismissed
JUDGMENT
JUDGMENT MUHAMMAD HALEEM, J.-This appeal is by special leave of this Court against the judgment dated 30-9-1975 of a Division Bench of the Lahore High Court by which the appeal was dismissed and death sentence was confirmed. It was the prosecution case that the appellant appeared before Choudhary Tufail Muhammad, Lambardar of village Kot Landha while he was sitting along with Sardar A.I at his house at 6-30 a. m. On 10-12-1971 and after giving out his name stated that he and his cousin Allah Ditta were employed as Malis in the Punjab University Campus at Lahore. Allah Ditta was married to Mst. Irshad Begum, daughter of Murad who resided in village Nahtu Sawayya. He along with Allah Ditta and his wife resided in the same room at Lahore and that he developed illicit intimacy with Mst. Irshad Begum about which Allah Ditta also came to know and that on Eid Day he had told her not to have any liaison with him. Eight or ten days earlier Murad carne to see his daughter and took her away to his village. Allah Ditta told him that he would follow here later. He did not like the idea of Allah Ditta going away as he would then lose contact with Met. Irshad Begum and, therefore, he persuaded Allah Ditta not to go but he did not listen to him. Yesterday, i. e., on the 9th December. 1971 Allah Ditta put his belongings in a true and was about to leave at 3-3!o p. m. When he told him that he would also accompany hint as he would like to go to his own village. He took the grass cutting sword and wrapped it in a Khes in order to kill him on the way. They travelled in a bus and reached Kot Ladha at about 7 p. m. And thereafter they went on the Katcha path which led to vaiage Nathu Sawsyya. As they reached Sem Nala he told Allah Ditta to take cut his Chadar from the trunk and as he bent to take it out, he eau: ed a sword blow to Allah Ditta which he consecutively inflicted as a result of which Allah Ditta fell down and died. Thereafter he bid the
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sword is a bush and took out from the trunk a pair of ear-rings, golden locket and some articles of clothing and leaving the trunk there, he came on Hafzabad Road but on account of black not he could not get a bus and slept near a mosque at Kot Ladha. As this conscience pricked him the whole night as to why he had killed his own cousin for a woman, the idea had come to him he should be produced before the police. Tufail Muhammad stated that at that time the appellant carried a bundle and also gave the information that the dead body of Allah Ditta was lying on the Katcha Path near the Sem Nala. He was wearing a blond-stained shirt and a Chadar round his neck. Tufail Muhammad then took Rahim, the Chowkidar and so also Altaf A.I and the appellant to the spot here they saw the dead body of Altah Ditta lying ire a pool of blood. Leaving the Chowkidar to guard over tie dead body and the appellant under the surveil--lance of Altaf A.I he proceeded to Police Station, Qila Didar Singh and at the bus staid he met Khan Ishtiaq Khan, Station House Officer at 9-30 a. m. To whom he gave; the statement which was treated as First Information Report in the case. Khan Ishtiaq Khan then proceeded to the spot from where he took into possession blood stained earth, a pair of Hawai Chappal (P. 4/1-2) and a trunk (P. 5). He arrested the appea1 at who was at the spot and from the bundle which he was carrying he took into possession a pair of ear-rings(P. 1/2`, locket (Inam) (1'/2). Wrist-watch (P/2) Chadder (P. 6), empty powder tin t T.7), four pillow covsers (P. 8) and (P. 9/1-3), 2 p eves of cloth (P. 10 and P. 11), a dopatta Shafoon (P. 12) a silken piece of cloth (P. 13)g a Dopatta Jalidar (P.W. 14), another Dopatta (P. 15) and a frock ;P. 16). The Station House Officer then seized a shirt (P. W. 19), Chadar (Ps. W. 18) and bloodstained shoes (Guargabi) (P. 17-1-21, a blond-stained Khes (P, 21) from the person of the appellant. Thereafter the appellant volunteered to produce the crime weapon and be led the Police party tea a bush in- the corner of a field belonging to Ghulam Muhammad and from there he picked out a blood-stained talwar (P. 20) which was taken into possession. The deceased suffered as many as 17 injuries which were reported to have teen caused by a sharp-edged weapon. The trial Court accepted the extra judicial confession made to Tribunal Muhammad and Altaf A.I (P. W. 10) an." (P. W. 1), motive as deposed to by Mst. Irshad Begum, his absence from duty on 10th December, 1971 onwards as testified to by Nasir Ahmad Bajwa, (P. W. 1), the production of the articles belonging to fist. Irshad Begum and the deceased and the blood stained crime weapon and the seizure of blood-stained articles of clothing in his wearing art the time of his arrest and convicted the appellant under sea Lion 302, P. P. C. And sentenced him to death by judgment dated 18-5-1974. On appeal and reference the Division Bench upheld the conviction and maintained the sentence. They held the motive to be established from the evidence of Mst. Irshad Begum and Murad and the absence from duly of the appellant from 10th December, 1971 onwards as stated by Nisar Ahmad Bajwa (P. W. 1). As for Tufail Muhammad and Altaf A.I, the learned Judges held that they were independent witnesses and had no motive to falsely implicate the appellant who complete stranger to them, and, therefore, it was not possible to accept that the extra judicial confession was fabricated. In regard to the attesting witness Ghulam Muhammad, the learned Judge observed that he was also an independent witness. There vans no reason why iris evidence should not be believed. Accordingly they accepted the recoveries on the incriminating articles which duly corroborated the extra-judicial concession. Concluding they held "We are, therefore, of the considered view that circumstantial evidence in this case produced by the prosecution is strong enough to leave no doubt in our minds that it was the appellant who had committed the murder of the deceased." Leave to appeal was granted to examine the several pieces of evidence as to whether they were free from doubt.
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The principal evidence against the appellant is the extra-judicial confession made to Tufail Muhammad and Altaf A.I. Tufail Muhammad is the Lambardar of the village Kot Ladha which is situated on the metalled road between Gujranwala acid Hafizabad. This witness bas stated that the appellant was not known to him and that the appellant had come to him after enquiring from some one on the road. This witness, has admitted that he had appeared in one other Sessions case State v. Mst. Aisha Bibi to depose about an extra judicial confession having been made to him by an accused belonging to village Dera Shah Jawal within the jurisdiction of Police Station Qila Didar Singh which case was investigated by another Assistant Sub-Inspector. This was about 3 yeas back. Another suggestion was made to him that he was a witness in a cast tried by the A, D. C. (G) under section 207, P. P. C. But he denied it. It is not possible to assume that by appearing once as a witness of the Police Equally there is no material to infer that he was not trustworthy. Again what is of importance is that on the bass of the confession incriminating-articles were recovered. This gives confirmatory assurance to the confession which to my mind is genuine. If the appellant bad not appeared before Tufail Muhammad bow was it then that he was arrested from the spot where the dead body was seen lying in a pool of blood. It is far-fetched to assume that Tufail Muhammad who being a stranger would impute a statement giving all the particulars of the crime without there being anything to show that he was each aware of them. The explanation of the appellant that he was arrested from his house at Lahore on the 10th December, 1971, a bare allegation and is of no value. The trial Court after assessing the worth of this witness, believed his evidence and held that the accused had voluntarily confessed to his guilt before him. The testimony of Altar A.I was also hold to be on the same footing and his evidence was accepted. The High Court upon scrutiny of their evidence held; "Before the Committing Magistrate as well as the Court the statement of Tufail Muhammad and Altaf A.I P. Ws. Are consistent. They arc independent witnesses and have no motive to falsely implicate the appellant and: therefore, we have no reason why their testimony should be disbelieved. Similarly, the recoveries in this case are attested by independent witnesses and there is no reason why their testimony should be disbelieved." The Courts below have unanimously accepted their evidence as free froth any blemish. I see no reason to differ from their opinion, particularly, when nothing transpires from their evidence to Chow that they were men of depraved character or there are features in their evidence to cast doubt on their credibility. The absence of Muhammad Rafiq from his place of duly on the l0th December, 1971 is proved by no leis a person tan the Superintendent of Gardens, Mr. Nisar Ahmad Bajwa who teas incharge of the Malis. He has unequivocally stated that he was marked absent on the 10th and onwards and show use notice was issued to the appellant ors 15-1-1972 as to why disciplinary action should not be taken against him. The link in the chain, i.e., his absence from Lahore and the consequent arrest from the spot is duly established. Tie second piece of evidence is the seizure of incriminating articles. The attesting witness is Ghulam Muhammad. His lend in adjacent to the Sem Nala where Allah Ditta was killed. Ire was also not known to the appellant and there is no feature in his evidence to cast a doubt on the seizure of incriminating articles. The trial Court accepted his evidence and the Division Bench also placed reliance on it. The articles seized from his person were stained with human blood for which there is no explanation except a bare denial. He led to the recovery a of blond-stained sword from, a place which was in his exclusive knowledge and answered to the description of the weapon given in the extra judicial confession. Ht also produced a bundle containing the articles belonging to Allah Ditta and his wife Mst. Irshad Begum. They were identified by Mst. Irshad Begum. In particular the ear- rings (P. 1/1-2) and locket (P. 2) were proved to have been given to bar by her husband's sister Mst. Hakan who was examined as a witness tar the case. A.I Muhammad the goldsmith who had made
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then at the behest of Mst. Hakan was also examined to establish this fact. The recovery of the trunk containing these articles further gave support to the confession that Allah Ditta was returning to village. Nathu Swayya as he was not willing to stay at Lahore any more. The appellant has not explained as to how he happened to be in possession of these articles which belonged to the deceased and Mst. Irshad Begum if he had not accompanied him. Since they were possessed by them and recovered from the trunk, their ownership cannot be in doubt. The appellant has not asserted that these articles belonged to him nor was a case made out that they were foisted on him. There is, therefore, no other conclusion but that he bad removed them from the trunk belonging to the deceased. It was urged that the parcels were tampered with and in this context reliance was placed on the evidence of Muhammad Siddiq (D. W. 1). Sain Khan (P. W. 23 received three sealed parcels from the Muharrir A. S.1. On 13-12-1971 for being taken to the office of the Chemical Examiner, Lahore but as he got the docket late in tile day, he re-deposited these articles in the Malkhana and on the following day he collected the parcels and took them to Lahore where he delivered them to the Chemical Examiner. However, Muhammad Siddiq (D. W. 1) was examined to show that in the Daily Diary of Police Station Qila Didar Singh no entry in regard to the redeposit of the articles was made pan 13th, 14th, or 15th December, 1971 after they were handed over to Sain Khan on 13th to be taken to the Chemical Examiner. As to whether the article; remained with Sain Khan after the 13th December till they were finally deposited in tae office of the Chemical Examiner or were re-deposited by him is not a circumstance which would establish any tampering with the articles, for, it was a bare allegation without anything further to infer as to in what manner the articles were tampered with. In the context of the un-equivocal evidence as to the seizure of the incriminating articles slid the production of the bleed-stained crime weapons, the sug--gestion of manipulator leas hardly any value. Even otherwise, there is noth--ing in the evidence of Sain Khan to show test he was interested getting the appellant implicated anal for that reason had surreptitiously retained the articles. It is a case where possibly from the lapse of memory Sam Khan may have stated that he had re-deposited them in the Malkhana and, therefore, in my view nothing turns on it. The motive is furnished by the testimony of Mist. Irshad Begum who was frank in stating that the deceased had seen her with the appellant in an objectionable posture and for that reason had entertained suspicion about her fidelity. There is also evidence to show that 8 or 10 days before the occurrence she was taken away by Murad, her father, whys has been discreet in not stating the reason as to why he took her to his village. But that is obvious from the fact that he had brought her bank to the village. The Courts below have accepted notice as the reason which prompted the appellant to kill the deceased which the appellant bas also admitted in his confession. In fact he wanted to remove tie deceased from his way and it was, therefore, that he went alongwith him on the pretext that he wanted to visit his own village. I have no hesitation in accepting this piece of evidence. It was contended that a dead body was found rear his village and to save his own skin Tufail Muhammad fabricated the extra-judicial confession. This contention appears to be absurd on the face of it, for, he was not in any way connected with the murder and lee could leave hats no intuition to fasten the guilt en the appellant, Again it was urged that the appellant bad resiled from the extra judicial confession and, therefore, being retracted it should riot be acted upon. The appellant had retracted to avoid the consequences of the accusation and not because it was involuntary or false. In Joygun Bibi v. The State (PLD 1960SC 313) it was held that such retraction is of no value. The pertinent observations are as under :--. "We are unable to support the proposition of law laid down by the learned Judges, in this regard. The retraction of confession is a circumstance a which has no bearing whatsoever upon the question whether is the first instance it was voluntarily made, and on the further question whether it
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is true. The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether the confession was voluntary, and if so, whether it was true, for to withdraw from a self-accusing, statement in direct fat; of the consequences of the accusation, is explicable fully by the proximity of those consequences, and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated. The confession is duly corroborated by the unimpeachable recoveries and it does not lose its evidentiary value merely because if was retracted. The learned counsel referred to other inconsequential omissions, but in the bread perspective of the case they are of no value. Concluding, therefore, each piece of evidence is free from doubt and cumulatively leads to the only conclusion that it was the appellant who had killed the deceased. Accordingly, I would uphold the conviction and sentence and dismiss the appeal. ANWARUL HAQ, J.-I agree with the order proposed to be made in this case by my learned brother Mohammad Haleem. J that the appeal be dismissed. However. I wish to add a few remarks on some of the points raised before us by Ch. Fazal-i-Haq, Learned counsel for the appellant, ors the question of the admissibility sad evidentiary value of the retracted extra judicial confession as well as of the incriminating recoveries said to have been made at the instance of the appellant. I consider that the Courts below were right in accepting the testimony of Ch. Tufail Mohammad (P. W. 10) as well as of Altaf A.I (P. W. 11 ) as to the voluntary nature of the extra judicial confession made before them who were not known previously to the appellant, and have not been shown to have any motive whatsoever to fabricate a story against him, even thcu4h the dead body of the deceased Allah Ditta was found to be lying in the area of the village of which Ch. Tufail Muhammad is ore of the Lamb. It may have been his duty to report the crime under section 45, Cr. P. C., but obviously there was no question of his being implicated in the same, if he had not come forward with the a assertion that the appellant had confessed before him. I am also in respectful agreement with my learned brother that Ch. Tufail Muhammad cannot be dubbed as a stock police witness simply for the reason that he had previously appeared in another murder case in similar circumstances three: or four years ago. It was submitted by Ch. Fazal-i-Haq that even if the confession is believed to have been made as alleged by the prosecution, it was inadmis--sible under section 24 of the Evidence Act, as it was made before a person in authority, namely, a Lambarder. The learned counsel referred us to two judgments of the Lahore High Court reported as Muhammad Alam v. The State (PLD 1909 Lah. 71) and Nazir v. State. (PLD 1960 Lah. 189) PLD 1952 FC 1) "before section 24 is pressed into service to throw out a confession, tile Court has to find several other facts in connection with that confession, the most important of which is that the person In authority shoed have held out to the confessor some threat, promise or inducement having reference to the char3e against him. "Now, in the present case, there is no material at all on the record to come to the conclusion that the Lambardar had in any manner induced the appellant to make the confession; on he contrary there is the assertion that the appellant disclosed to the Lambardar that all through the night, when he slept in or near tile village mosdua, his conscience had been troubling hint as he had murdered his own cousin for the sake of a woman, and therefore, he wanted the unburden his ni'3d by making the confession. It appears to me, therefore, that this is not at all a case where the confession is in any manner rendered inadmissible under section 24 of the Evidence Act, even though it had been made before the village Lambardar. The learned counsel for the appellant next contended that the confession was also vitiated for the reason that it was not expressed in the words of the appellant himself, and in this behalf he again relied upon the case of Nazir just mentioned. There does not appear to be any merit in this
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submission, as the story narrates by Lambardar Tufail Mohammad as well as by has companion Altaf A.I is in identical terms, and bath of then have purported to reproduce what was stated before them by the appellant. The circumstances in the precedent case were altogether different, as it was found by the Court in that case that the witness had given divergent versions before the committing Magistrate and at the trial as to the nature of the extra judicial confession made before him by the accused person. Mr. Fazal-i-Haq also contended that as the confession had been retracted, therefore, it had lost its evidentiary value. This proposition does not appear to be supported by any authority. On the contrary, the view consistently expressed by tie superior Courts in this country is that the retraction of a confession, whether judicial or extra judicial, is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily made, and on the further question whether it is true. It has in fact been observed that an extra-judicial confession can be made the sole basis of a conviction, although as matter of prudence the Court must look for satisfactory corroboration. One may in this behalf refer to Abdul Latif v. Crown (PLD 1952 FC 113), Joygun Bibi v. State (PLD 1960 SC 313), State v. Mirhurn (PLD 1964 S c 813) and Hakim A.I v. The State (1971 SCMR. 413). The confession made by the appellant stands satisfactorily corroborated in this case by the discovery, at the appellant's instance, of the dead body of Allah Ditta, the blood-stated weapon of offence, the blood-stained garments worn by the appellant himself, as well as certain articles belonging to the deceased and his wife Met. Irshad Begum (P. W. 7). Tile motive also stands established by tire evidence of Mst. Irshad Begum, with whom the appellant bad established an illicit liaison while sae and her deceased husband were residing with him in the same room at Lahore. The statement of this woman finds indirect support from the testimony of her father Murad (P. W. 6), who admitted that he bad brought her away from Lahore a few days before the occurrence. Finally, there is also the evidence of Nisar Ahmad Bajwa (P. W. 1), Superintendent of the University Gardens, who had noticed the absence of the appellant as well as the deceased from their, duty from the 10th of December, 1971 onwards. These corroborative circumstances leave no doubt as to the guilt of the appellant. He has, therefore, been rightly convicted and sentenced. QAISAR KHAN, J.-After going through the judgment proposed by my learned brother Muhammad Haleem, J. To be delivered in this case, it is with respect that I have to state that I do not find myself in agreement with it aria I shall therefore proceed to record my own judgment. Tie facts of the case have been given by my to learned brother in detail inn his proposed judgment and need not be reiterated. I shall straightaway proceed with the discussion of the evidence. The prosecution evidence consists of the following pieces :--- (1) The retracted extra-judicial confession of the accused deposed to by Tufail Muhammad P. W. 10 and Altaf A.I P. W. 11. (2) Recoveries of some articles from the accused and some at bit instance deposed to by Ghulam Muhammad P. W. 5 and Ishtiaq Muhammad S. H. O. P. W. 13. (3) Motive for the offence deposed to by Mst. Irshad Begum P. W. 7. (4) Absence of the accused from his duty on the 10th i. e. The day follow--ing the day of occurrence deposed to by Nisar Ahmad Bajwa P. W. 1. The most important piece of evidence in the case is the extra judicial confession of the accused and I proceed to discuss it first of all, for if the statements of the two P. Ws., namely, Tufail Muhammad and Altaf A.I are disbelieved then there is nothing loft in this case. In this respect both the Courts below have held that they were disinterested persons and there was therefore no reason for them to falsely implicate the accused and under the circumstances they could be relied upon. In my opinion the mere disinterestedness of a witness does not prove that he has come
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forward with a true statement. The statement itself has to be scrutinised thoroughly and it has to be seen as to whether in the circumstances of the case the statement is reason--able, probable and plausible and could be relied upon, If the principle that a disinterested witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible, then it would lead to very dangerous consequences. In the instant case the accused belongs to quite a different village from that of the two P. Ws. And the two P. Ws. Have themselves stated that neither did the accused know them nor did they know the accused. In the circumstances how could the accused know what type of persons the two P. Ws. Here and for what consideration and on what account were they deposing against him. In such a case the statements of the P. Ws. Are to be scrutinised and tested for finding out as to whether these were reasonable, probable and plausible and could be relied upon irrespective of the fact that they were disinterested. After carefully going through the statements of the P. Ws. I have come to the conclusion that they have not been telling the truth and that the version given by them was a story made up after the dead body had been…
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