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Petitioner: GUL MUHAMMAD VS Respondent: THE STATE
P L D 1958 (W
P L D 1958 (W. P.) Karachi 133
Before Lari and Wahiduddin, JJ
GUL MUHAMMAD‑Appellant
Versus
THE STATE‑Respondent
Criminal Appeal No. 277 of 1957, decided on 23rd Septem ber 1957.
Confession‑Extra‑judicial‑At best a weak piece of evidence‑Must create belief that it was made and was true, before it could be made sole basis of conviction.
An extra‑judicial confession, which is at the best a weak piece of evidence, in order to be the sole basis of conviction must be supported by exceptional cricumstances which create a belief that the extra‑judicial confession was in reality made and was in fact true.
Abdul Latif v. The Crown P L D 1952 F C 113 and Ahmad v. The Crown P L D 1951 F C 107 ref.
Where the version of other aspects of the case given by the witnesses deposing to‑ an extra‑judicial confession was contradicted by the medical testimony and the conduct of these witnesses was wholly unnatural, held that it was doubtful that any extra‑judicial confession had in fact been made by the accused.
Ajmal Mia for pauper Appellant.
Muhammad Hayat Junejo for the State.
JUDGMENT
LARI, J.‑-- This appeal has been preferred by Gul Muhammad son of Jahan Khan who was found guilty under section 302 of the P. P. C. and sentenced to death by Mr. Moula Bakhsh G. Lighari, Sessions Judge, Nawabshah, for murdering his brother Loung sometime during the night between 4th and 5th January 1957 The matter has also come before us by way of reference.
The prosecution story is that the appellant lost his wife and thereafter contracted illicit intimacy with Mst. Chanan, wife of deceased Loung. The appellant was not satisfied with this' casual relationship and wanted to marry her. Accordingly he conceived the idea of murdering Loung and expressed a desire to that effect to Mst. Chanan, who tried to prevent him from doing so. Ultimately, on 4th January 1957, deceased Loung left for his field after taking meals as that night it was the turn of water in respect of his field subsequently the appellant is also said to have gone to the field and lie returned one or two hours thereafter and informed Mst. Chanan that lie had done Loung to death. This was also overheard by Jahan Khan, a son of the deceased. The appellant is alleged to have told Jahan Khan that he would be taken to task if any complaint was made in this respect, but thereafter lie left the house. At about midnight it is alleged he went to Yar Muhammad. his uncle, and repeated his confession that he had murdered Loung as he wanted to marry Mst. Chanan. After sunrise he saw Ghulam Muhammad a Zamindar and told him as to what he bad done. Ghulam Muhammad directed him to make a report at the police station. The appellant consequently appeared at the police station at 10‑30 a.m., but curiously enough did not make a confessional statement but put up a story in the following words :‑
"Myself and my brothers Loung and Allahbux have cultivated the land of Ghulam Mangsi. Yesterday evening after sunset I went for turn of water and asked my brother Loung also to come over there on the water rotation. My brother Chuto after sunset time went and slept at the goats‑shed. When I was on the water rotation, at sleeping time my brother Loung came there. I left him on the turn of water. Loung asked me to bring my smaller girl who was with Yar Muhammad Kosh. I went home and then to Yar Muhammad Kosh. For the night I stayed with Yar Muhammad. Early in the morning I brought home my little girl. I took up milk from the house and was coming to Shahpurchakar along with my nephew Saindito when Sanwan Umrani met us. I enquired from him as to who had stopped the water. He informed me that Malook Dahri had closed the water course. From there I gave calls to my brother Loung but no reply came. Then I and my nephew went to see Loung. We found that Loung had hatchet injuries on neck and right hand and he was lying dead in the field. Then I went home and informed my relations. I also informed my Zamindar Ghulam Mangsi who referred me to the police. I report that about 4 months back Mubarak Brohi had taken silver anklets from my brother Loung on loan for use. About 11‑12 days back I and my brother Loung asked Duru Brohi to return our anklets and not to become shameless. On this we exchanged abuses. 4 days back Mubarak Brohi got back anklets from Gehimal Hindu and returned the same to us. Steps be taken."
Subsequent to the above‑mentioned report the police reached the spot. They found some shod prints and, after some investigation, challaned the appellant, who was tried and convicted as noted earlier.
It is conceded by the learned counsel for the State that the basis of conviction is the extra‑judicial confession said to have been made to Mst. Chanan, Jahan Khan, Yar Muhammad and Ghulam. It is well‑established that an extra judicial confession, which is at the best a weak piece of evidence, in order to be the sole basis of conviction must be A supported by exceptional circumstances which create a belief that the extra‑judicial confession was in reality made and was in fact true. Reference may be made to the case of Abdul Latif v. The Crown (P L D 1952 F C 113) and Ahmad v. The Crown (P L D 1951 F C 107). In this case there are no corroborating circumstances at all apart from the shod prints and the recovery of a hatchet which had no blood‑stains thereon. These two circumstances can summarily be dismissed as of no value and do not require any consideration. We find that, on the other hand there are circumstances ,which militate against the reliability of the story as to the extra‑judicial confession.
It will appear from the recital above that the deceased had left after taking night meals and the extra‑judicial con fession was made for the first time to Mst. Chanan at about 11 p.m. The murder, if this extra‑judicial confession be true, took place sometime between 10 and 11 p.m. The statement of the doctor who performed the post‑mortem examination shows that the injuries were twenty‑four hours old at the time when the post‑mortem was performed. This took place at about 4‑45 p.m. on 5th January. It is also clearly estab lished from the evidence of the doctor that the stomach was empty. In view of this medical evidence, it is presumable that murder took place at about 5 p.m. on 4th January and in any case must have taken place before the deceased had any opportunity to take night meals. The version as given by Mst Chanan and other witnesses is therefore contradicted by the medical testimony in the case. It is surprising that F the learned trial Court did not consider this aspect of the case at all.
The evidence of the four witnesses comes to this, that the appellant first made a confession at about 11 p.m., he repeated the same at about midnight and once again repeated it early in the morning. It is really improbable that a man in this state of mind would, when he approaches the police station, commit a somersault. The alleged motive for this murder was that he was anxious to marry Mst. Chanan, but a man having this intention would try to conceal the offence rather than proclaim it. His very purpose would be defeated if he would confess to his uncle and Zamindar that he had committed the murder with that view. It is highly improbable that, having such intentions, he would confess without any compelling reasons.
Jahan Khan has stated in his evidence that a threat had been given to him and he was required to keep mum. This is absolutely inconsistent with the conduct of the appellant approaching Yar Muhammad and Ghulam Muhammad with no other purpose except to make a clean breast of what he had done.
The learned judge was impressed by the fact that Mst. Chanan was the wife of the deceased, Yar Muhammad his uncle and Ghulam Muhammad a Zamindar, who had no personal motive to falsely implicate the appellant. Mst. Chanan, on her own showing, is a loose woman. She has made contradictory statements. Such a witness cannot be relied upon. Jahan Khan is just a young lad. He had improved on his statements that he made before the police and the Magistrate under section 164, Criminal P. C. He deposed before the Magistrate that his father had gone for turn of water and the appellant had followed him with hatchet. This statement is not to be found in his 164, Criminal P. C. statement. He further stated that the appellant had threa tened to kill them if they complained to anybody. No such statement had been made before. It seems that it was realised that the silence of Mst. Chanan after the appellant had left would be a matter for consideration by Courts and therefore this explanation was offered. After the appellant had left his house it was natural that M 5t. Chanan would inform at least the brother of the deceased who was sleeping in the same house. It would also be natural on her part to go to the place of incident and call for assistance. Nothing was done till the police arrived at the scene. Ghulam Muhammad is a landlord. It was his duty to inform the police and even come to the spot to make sure of the dead body if the alleged extra‑judicial confession had been made to him. But on his own showing he did nothing of the kind. Yar Muhammad is ‑ an elderly man. He had been given this information about midnight. He was related to the deceased. It is wholly improbable that an uncle getting information of such a story would keep mum and not move his little finger to have the matter, brought to the notice of the police. If the uncle was anxious to screen his relation even then he would go to the scene of offence. The conduct of these witnesses, if the extra‑judicial confession had been made to them, was therefore wholly unnatural. These circumstances make it doubtful that any extra‑judicial confession had in fact been made before the First Information Report was lodged with the police.
The assessors, to our mind, reached a correct conclusion when they expressed an opinion that it was not established that the guilt of the appellant was proved.
We have come to the conclusion that the prosecution have failed to prove the case against the appellant, and we therefore allow the appeal set aside the conviction and sentence passed on the appellant and order him to be released forthwith.
A. H. Appeal accepted.