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Petitioner: THE STATE VS Respondent: KHAN AFSARHonorable Justice M. HAYAT JUNEJO,Ahmed Saeed Qureshi,S. Murtaza
1969 P Cr
1969 P Cr. L J 1504
[Karachi]
Before Dorab Patel and Muhammad Hayat Junejo, JJ
THE STATE‑Appellant
Versus
KHAN AFSAR AND 3 OTHERS‑Respondents
Criminal Acquittal Appeal No. 96 of 1967, decided on 30th July 1969.
(a) Criminal Procedure Code (V of 1898)-----S. 164, read with Evidence Act (I of 1872), S. 30‑Confession, retracted‑Accused voluntarily making confessional statement giving all circumstances culminating in murder of deceased and attributing to himself impor tant role of cutting throat‑Confession also corroborated by recoveries and retracted confession of co‑accused‑Trial Court completely discarding and doubting voluntary nature of confession on ground that it was couched in `chaste' Urdu while accused was illiterate‑Accused however proved capable of reading and writing by evidence on record‑Retracted confession, held, fully corroborated, leaving no room for doubt regarding responsibility of confessing accused for murder.
Rahzan v. The State P L D 1960 Lah. 24 rel.
(b) Criminal Procedure Code (V of 1898)------S. 164 read with Evidence Act (I of 1872), S. 30‑Confession, retracted‑Police apprehending co‑accused on clue given by accused in confessional statement‑Confession also corroborated by retracted confession of co‑accused and recoveries‑Accused's confession held voluntary and his participation in crime, proved beyond doubt.
Wali Zaar v. The State P L D 1960 Kar. 204 rel.
(c) Penal Code (XLV of 1860)-----S. 302‑Murder‑Circumstantial evidence against accused very weak in character and not directly connecting accused with crime‑Retracted confession of co‑accused associating accused with commission of crime, held, no substantive evidence and can only be taken into consideration‑Nor can it be made basis of conviction by itself.
Joygun Bibi v. The State P L D 1960 S C 313, Maqbool Hussain v. The State P L D 1960 S C 382 and Ibrahim and another v. The State P L D 1963 Kar. 739 rel.
(d) Penal Code (XLV of 1860)------S. 302/34‑Murder Sentence‑Mitigation‑Murder committed in extremely brutal and cruel manner in spite of deceased's entreaties for mercy Counsel's contention that accused got expectation of life by virtue of acquittal‑Held, no matter for judicial consideration‑Normal penalty of death‑Adequate and just in cases of brutal murder Death sentence passed on co‑accused however converted into transportation for life in view of his minor part in crime.
S. Murtaza for the State.
Ahmed Saeed Qureshi for Respondents.
Dates of hearing : 18th, 21st and 22nd July 1969.
JUDGMENT
M. HAYAT JUNEJO, J.‑The four respondents in this acquittal appeal, namely, Khan Afsar son of Akbar aged 24 years, Muhammad Farid son of Dilawar aged 20 years, Javed Khan son of Laiq Khan aged 25 years and Muhammad Yousuf son of Mirzada aged 30 years were tried by the learned Additional Sessions Judge, Karachi (Mr. Ghulam Hussain S. Ansari) for offences under section 302 read with sections 120‑B and 379, P. P. C.
2. The charge against them was that on the night between 8th and 9th of January 1964, they committed theft of Taxi No. KAT‑6082, which was driven by deceased Nasir, aged 25 years and thereafter in pursuance of criminal conspiracy inten tionally caused the death of the said driver. One Ghulam Ahmed alias Soofi, who is also alleged to have taken part in this crime with the four respondents was absconding and has still not been arrested.
3. The prosecution cause in brief was that deceased Nasir Ahmed used to drive Taxi No. KAT‑6082 belonging to his uncle Sharafuddin. On 8‑1‑1964, he went out in his taxi in the evening with his younger brother Nazir. The latter returned home at 8 p.m. and informed his elder brother Bashir Ahmed, P. W. 5 that Nasir Ahmed had gone to Landhi carrying beef of his customer and would return home late if he got any passengers. When deceased Nasir Ahmed failed to turn up till next morning, a search was made for him but without success. On 10th January 1964, however, Bashir Ahmed and his uncle Sharafuddin found their taxi abandoned near the tram line in Saddar. They came to Artillary Maidan Police Station and reported the matter to the police. In the meantime one Karim Bux servant of P. W. Muhammad Hassan found a dead body lying in the well of his garden and conveyed the information to P. W. Muhammad Hassan, who came at the well and saw the dead body lying in a pool of blood. There were also stains of blood on the brink of the well. After leaving his brother, Noor Muhammad at the well, P. W. Muhammad Hassan went to Police Station Drigh Road and reported the discovery of the dead body the same day at 9 a.m. Mirza Sultan Baig, Sub‑Inspector Incharge after record ing this information accompanied Muhammad Hassan to the scene of occurrence which was in the garden of Muhammad Hassan and found the dead body inside a dry well. The throat of the deceased was cut by some sharp weapon. At 12 noon on the same day a case under section 302, P. P. C. was registered by Mirza Sultan Baig, S. H. O. at the same police station.
4. On 10th January 1964, the Artillary Maidan Police received information from Drigh Road Police Station about the recovery of the body which had been sent to the Civil Hospital for post‑mortem. As a result of this information P. W. 3 Bashir Ahmad brother of the deceased went to the Civil Hospital and identified the dead body to be that of his brother Nasir Ahmed. He found the clothes of the deceased, namely a shirt, a trousers and a banyan and identified them to those which the deceased was wearing when he was last seen alive.
5. After the preliminary investigation was done by Mirza Sultan Baig, S. H. O. Drigh Road the case was entrusted to C.I.A. for investigation. The C.I.A. Inspector Muhammad Ayub, P. W. 19, who was incharge of this case arrested respon dent Muhammad Yousuf on 1‑2‑1964, and thereafter, on his pointing out the remaining three respondents were also arrested by this police officer on the same day.
6. The same day respondent Khan Afsar took the police and mashir, Munawar Ali P. W. 17 to a kutcha but near a grave yard where he called one Hyder Zaman from the but and asked him to return the tin which he had given to him. On this request the said Hyder Zaman produced a tin which was secured by the police under a Mashirnama Exh. 30. It was a one gallon capacity tin and on its bottom the number of the stolen Taxi No. KAT‑6032 was found written in black.
7. Respondent Javed took the police and the Mashirs to Olympia Mill about three miles away and on the way he pointed out a driver's cap lying in the maidan. The police secured the cap under a Mashirnama Exh. 31. Thereafter, the party proceed ed towards Olympia Mills and arrested appellant Farid. The latter brought the party to the Liaquat National Hospital near Drigh Road and from some bushes near the said hospital he took out some torn pieces of the licence of the deceased which had been taken away from the stolen taxi. The torn pieces were secured under a Mashirnama Exh. 13.
8. Respondent Muhammad Yousuf, who was the first to be arrested and on whose pointing out it was possible for the police to get hold of the other three respondents, led the police to the shop of one Muhammad Yousuf on 2nd February 1964, in Khori Garden and asked the owner thereof to give the wheel spanner (liana) which had been deposited with him. Muhammad Yousuf produced the said spanner which was secured by the police in presence of Mashir P. W. 12, under Mashirnama Exh. 23/A. On the same day at the instance of respondent Muhammad Yousuf, one Ismail Kabari produced one jack without rod in the presence of Lal Din and Bashir Ahmed under Mashirnama Exh. 16.
9. All these articles, namely, the driver's cap, torn pieces of the deceased's driving licence, the spanner as well as the jack was subsequently identified to be the property of deceased Nasir Ahmed which were with him when he was last seen alive.
10. On 3rd and 7th February 1964, respondent Khan Asfar and the other three respondents were sent to Mr. Anwar Shaikh, Additional City Magistrate, Karachi for having their judicial confessions recorded. According to the evidence of the Magistrate, who has been examined in this case as P. W. 18, he received a letter from the City and A. D. M., Karachi on 3rd February 1964, for recording the confession of Khan Afsar. He removed the accused from the police custody and asked him if he wished to make a confession after giving him the warning that he was not bound to make a confession and that any statement which he would make could be used against him and could form the basis of his conviction. As the respondent was still ready and willing to make a confession, the Additional City Magistrate, took an additional precaution of remanding him to the judicial custody till 6‑2‑1964 for reflection. The respondent was also asked by the Magistrate if he had been beaten by the police or any inducement, threat or promise was made or offered to him. The respondent was informed by the Magistrate that he was not a police officer but a Magistrate and if he did not make a con fession he would not be sent to the police custody. The learned Magistrate assured the respondent that in any event he would be sent to judicial custody only and would under no circumstance be handed over to police custody.
11. On 5‑2‑1964, when this respondent was again produced before the learned Magistrate, he repeated all the warnings and assurances given to him on the earlier occasion. It was only when the Magistrate was thoroughly satisfied that the confession was being made voluntarily that he recorded the same. This confession Exh. 35 is a very lengthy document and gives all the details of the various incidents in which the four respondents were involved. For the purpose of this acquittal appeal we may only reproduce the relevant passage thereof which reads as follows :
"The police has arrested me for three cases of murder. It is now about one month and twenty‑five or twenty‑six days past when the first murder was committed. It was a murder of Taxi wala who had met me at Drigh Colony Jawed, Yousuf and Fareed were at that time with me. It was eight hours time at night then. All the four of us sat in this Taxi and went to Landhi. We went ahead of the Olympia Mills, where the road ends. The Taxiwalla stopped the vehicle and said that there was no passage ahead. When we alighted down along with its driver from the Taxi, I let a noose by means of a chadar around the driver's neck from behind. Then all the four of us joined and wrapping the chadar over the driver's mouth caused him to be laid below infront of the back seat. Then all of us took seats in the Taxi again. Yousuf drove the Taxi. But the said driver was making some sound so the Taxi was stopped during the way and he was once more tied with a rope and shifted him to the diggi of the said vehicle. There after we went to the hotel of Jawed Khan where Soofi met us. We told Soofi who also came and sat in the Taxi. Then Fareed told that there was a well in the garden near the Dalmia Cement Factory and proposed to go there. He had suggested that in order to kill the driver on reaching there. After that we went towards the Dalmia via Kaccha Road. The Taxi was stopped there near the garden. Then it was ten or half past ten hours time at night. We pulled the driver out of the diggi who entreated for being let off, after making money from him. Soofi replied to him that he would be kept there for the night in a house and that he would be fetched away by next morning. Jawed took out of the driver's pocket rupees twenty‑five. While we reached the well, Soofi, Jawad, Yousuf and Farid felled him down. Yousuf caught hold of his legs and Jawed pressed his throat while Farid held his head. Soofi was pressing and riding over him. I took out a knife from my pocket and cut the driver's throat with it myself. Then he was thrown inside the well. Jawed thrust his own handkerchief in the driver's mouth and it had been left there. When we had come up to a good distance from there, Soofi informed that his muffler had fallen there. We came to a petrol pump in the said taxi, which is situated near the Dalmia Cement Factory. We had caused a supply of petrol from there. An old man had provided petrol for the vehicle there and on our demand he had also given to all of us water to drink. Besides the said old man two other persons at the said Patrol pump, one of whore was asleep. . "
After recording this confession, the learned Magistrate appended a certificate as required under the provisions of sections 164 and 364, Cr. P. C. to the effect that he was fully satisfied that the confession was voluntary and genuine.
12. At this stage we cannot resist the temptation of saying that the steps taken by the learned Magistrate in recording the confession are really commendable and the manner in which this confession was recorded could be a model for all Magistrates to follow.
13. On 8‑2‑1954, respondent Muhammad Yusuf's confession was also recorded by the same Magistrate, as Exh. 36. The learned Magistrate took all the precautions which had taken in respect of the confession of respondent Khan Afsar. This con fession also is more or less to the same effect as that of Khan Afsar. The remaining two respondents Muhammad Farid and Jawed Khan did not make any confession after the Magistrate had given them the necessary warnings and they, accordingly were sent to judicial custody. We may also observe that Khan Afsar and Muhammad Yusuf who had made the confessions were also sent to judicial custody by the learned Magistrate immediately after the confessions were recorded. After the usual investiga tions were completed all the four respondents were challaned to stand their trial for the offences as stated above.
14. The defence of the respondents was a bare denial of the prosecution case. They failed to explain any of the circumstances appearing in evidence against them. When questioned about their confessions Khan Afsar stated before the committing Magistrate that he "did not give any confession". In the Sessions Court, however, he stated that the police had brought him to the Court twice or thrice for his confession and on the last occasion they brought him to the Court and made him sit in the verandah where they took his signature on a paper. According to the respondent Khan Afsar he did not know what was written on that paper as he was illiterate.
15. The defence of respondent Muhammad Yusuf is also identical inasmuch as in the Court of the committing Magistrate he denied having made a confession but tried to explain the same in the Sessions Court by saying that after his refusal to make a statement several times, the Sub‑Inspector of Police took his signature on some paper. In other words, both the respondents denied that any statement of their was recorded by the learned Magistrate. The respondents also denied that any recoveries were made from them or at their instance. About the witnesses they stated that they were the "man of the police" and that is why they were deposing against them. No witness was examined in defence by any of the four respondents.
16. The fact that deceased Nasir Ahmed met his end by violence is not disputed. Dr. Major Hassan, who performed the post‑mortem on the deceased found the following injuries on his person : ----
"(1) Gaping incised wound 3 " x 2" x 2" in front of the neck transverse, more to the right at the level of the middle of the thyroid cartilage cutting the skin deep tissues, muscles, thyroid cartilage and juglar vains. The right cartoid was intact and collapsed. The wound had more than one cuts on the skin but one clear cut in the throid cartilage.
(2) Abrasion 2" x " in front of the left side neck. 1" below No. 1.
(3) Abrasion 2" x " interrupted on right shoulder blade region.
(4) Abrasion " x " with slight swelling on left side upper lip.
Injury No. 1 was caused by sharp‑edged weapon such as knife and was sufficient in the ordinary course of nature to cause death. In his evidence, Dr. Major Hassan stated that injury No. 1 could be caused by weapons like knife, Article P/l and chhuri Article P/14, which were shown to him in the Court. The medical evidence, accordingly, leaves no room for doubt that deceased Nasir Ahmed was murdered.
17. The only question that needs consideration is whether there is sufficient, satisfactory and reliable evidence on record to connect the respondents or some of them with this crime. In this connection we propose to consider the evidence against each respondent separately.
18. We shall first deal with the case of respondent No. 1, namely, Khan Afsar. The prosecution case against him is based mainly on the judicial confession, relevant passages whereof have been reproduced in paragraph 11 of this judgment. As we have already stated respondent Khan Afsar was arrested on 1‑2‑1964 and produced before a Magistrate for remand on 2‑2‑1964. The very next day, i. e. on 3‑2‑1964, he was produced before Mr. Anwer Shaikh, Additional City Magistrate, Karachi who, before recording his confession explained to him that he was not bound to make a confession and that if he did so it would be used against him and he could be convicted on the basis thereof. After this, the Magistrate took the added precaution of remanding him to judicial custody for two days so that he had ample time for reflection while he was away from police influence. After the accused was produced again before him on 5‑2‑1964, the learned Magistrate repeated all the necessary warnings and in addition assured him that he would not be returned to police custody even if he refused to make a confession. It was only after the Magistrate was thoroughly satisfied about the voluntary nature of the confession that he took down the same. After the confession was recorded the Magistrate appended the necessary certificate at the end giving reasons as to why he considered the confession to be voluntary and true. The accused Khan Afsar was immediately thereafter sent to judicial custody.
As we have already observed the learned Magistrate had taken the maximum precautions in recording the confession and we find no reasons whatsoever for discarding it. The learned trial Judge while himself dealing with the confession in paragraph 6 of his judgment has observed that the accused "voluntarily gave the confession which was duly recorded." Subsequently, however, in paragraph 17 of his judgment, he went on to state as follows :‑
"It appears to me doubtful whether this confession was voluntary. The confession is in chaste Urdu. The confession of the other accused is also in chaste Urdu. Both the confessions more or less are in the same strain and language. The accused is illiterate and cannot talk Urdu so fluently and in chaste language. Since the accused has denied to have given the confession, it cannot be acted upon unless it is corroborated in material particulars. I shall, therefore, try to see whether the confession is corroborated by independent evidence."
It is by no means clear from these remarks whether the learned Judge was riot relying on the confession simply because by any reliable evidence or whether he was completely discarding it because its voluntary nature appeared doubtful to him. We may, however, state that merely because the confession was in "chaste" Urdu, it could not be a sufficient ground for discarding it. According to Oxford Dictionary "Chaste" means "simple in style" or "without too much ornament". We failed to see why the confession should be presumed to be involuntary, merely, because it was recorded in simple Urdu. The basis of the learned Judge's reasoning that the accused was illiterate is contrary to the evidence on record, as in the confession itself accused Khan Afsar had stated that he had studied up to Third Class and could read and write letters. In addition the accused had mentioned that he used to read newspapers also. We have ourselves seen the signature of the accused at the end of his confession and his writing appears to be that of an educated person. He has even put the date under his signature and that also in English. In his statement recorded by the committing Magistrate respondent Khan Afsar stated that he "did not give any confession". Later, at the trial he stated that the police took his signature on a paper on which something was already written; and that he could not read it as he was illiterate. This is impossible to believe, in view of the provisions of section 80 of the Evidence Act and the evidence of the Magistrate. Even the learned counsel appearing on behalf of the respondents conceded before us that this was absurd. The reasoning of the learned Additional Sessions Judge that "chaste Urdu" used in this confes sion makes its voluntary nature doubtful has not appealed to us at all. The narrative portion of the confession runs into five and half pages of the printed paper book arid it is impossible to conceive that the police could have made the accused memorize the whole of it in chaste Urdu.
19. It may be pointed out that the other accused, namely, Jawed Khan, who was sent to the learned Magistrate along with Khan Afsar, declined to make a confession, and was, thereafter sent to judicial custody. It was only because res pondent Khan Afsar was ready to make a confession voluntarily that the learned Magistrate recorded the same. We may also mention that there has been absolutely nothing in the cross‑examination of Inspector Muhammad Ayub to throw any doubt on the voluntary nature of the confession. The confession itself is elaborate and mentions all the details which could find a place only 1n a genuine document. Moreover, in his confession, Exh. 35, accused Khan Afsar has attributed the most important role of cutting the throat of the deceased to himself. As observed by Mr. Justice Sajjad Ahmad in the case of Rahzan v. The State (P L D 1960 Lah. 24) one basic test of the truthfulness of a confession is the role which the confessing accused attributes to himself in a given crime in relation to the other accused concerned in the same crime. Analysing the statement of accused Khan Afsar on the test stated above and considering the evidence of the Magistrate as well as the contents of the confession itself we have not the slightest doubt that the confession was voluntary and true.
20. This confession is also corroborated by the recovery of a tin from one Hyder Zaman at the instance of Khan Afsar. On 1‑2‑1966, immediately after his arrest, respondent No. 1 took the police to a but situated near a graveyard where he called P. W. Hyder Zaman from the but and asked him to return the tin which he had given to him. Hyder Zaman produced a tin which was secured by the police under a recovery memo. Exh. 30 in the presence of Mashir Munawar Ali P. W. 17. It was a tin of one gallon capacity with the words:
"Established 1845 ARACHID OIL 1‑gal. ANDREW LUSK & CO. LTD., LONDON."
written in English on one of its side; while the number of the stolen taxi driven by deceased namely :‑
`KAT 6082"
is also written in black on its bottom. All these details are mentioned in the memo. of recovery, Exh. 30. The learned trial Judge, however, discarded this evidence on the ground that "the tin produced in Court is an ordinary tin"; and that "there is no special mark of identification on it." As this was contrary to the record of the case, we sent for this tin in Court and ourselves examined the same in the presence of the learned Advocates appearing for the State and the respondents. The number of the stolen taxi is clearly written on the bottom of the tin in bold figures. Besides, the tin is not at all of such a common variety that it could not be easily identifiable. The learned Additional Sessions Judge also discarded this piece of evidence on the ground that Mashir "Munawar Ali Khan smacks to be the man of police and as already stated 1iis evidence carries no weight." We, how ever, find no material on record on the basis of which we can come to such a conclusion. Munawar Ali Khan is a respectable businessman being a cycle‑shop owner and nothing whatsoever has been brought out in his evidence to discredit his testimony. He denied the suggestion in cross‑examination that he had been in police service and the matter was not pursued further in this respect. If the witness had been really in police service this could not have been difficult to prove. In any case, the defence could have pursued this aspect a little further. The witness also denied the suggestion that he was a "man of the police". We accordingly find nothing on record which could throw slightest suspicion on the evi dence of P. W. Munawar Ali Khan. It is true that P. W. Hyder Zaman. has not supported the prosecution case with the rest it that he had been declared hostile by the Assistant Public Prosecutor. The witness in his evidence stated that the police…
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