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Petitioner: FAQIRA VS Respondent: THE STATE
P L D 1965 (W
P L D 1965 (W. P.) Lahore 715
Before Muhammad Afzal Cheema and Abdul Kadir Shaikh, JJ
FAQIRA AND ANOTHER‑Appellants
Versus
THE STATE‑Respondent.
Criminal Appeal No. 312 of 1964/Murder Reference No. 96 of 1964, decided on 28th June 1965.
(a) Penal Code (XLV of 1860)--------
---- S. 302‑‑Murder ‑ Healthy person receiving two severe hatchet blows on neck‑Utterance of shriek by such person not improbable.
(b) Penal Code (XLV of 1860)------
-----S. 302‑Murder‑Evidence--Presence of eye‑witnesses (brothers of deceased) not doubted --Accused (erstwhile servant of deceased) identified by them --Statements made by them, nevertheless, held, not sufficient for making sole basis of conviction without corroboration by independent evidence.
(c) Criminal Procedure Code ( V of 1898)-----
----- Ss. 164 & 364 Confession made before a judicial officer but not in strict conformity with provisions of Ss. 164 & 364‑At best an extra judicial confession‑Evidentiary value to be assessed in context of other available evidence.
(d.) Criminal Procedure Code (V of 1898)--------
-----Ss. 164 & 364‑‑Statement made to judicial officer under S. 164‑Required to be recorded "in the course of, an investigation"‑Confessional statement before judicial officer prior to commencement of investigation and not recorded in manner prescribed under Ss. 164 & 364‑Nevertheless, not inadmissible in evidence if found to be voluntarily made.
A statement under section 164, of the Criminal Procedure Code is recorded in the course of investigation. Thus, where no investigation has commenced, section 164 of the Criminal Procedure Code is not at all attracted. But this does not mean that confessions, which would otherwise have been admissible, are nevertheless rendered inadmissible, because of the fact that they have not been recorded under section 164, of, the Criminal Procedure Code. This section does not exclude confessions which are otherwise admissible in evidence, as for example, confessional statements made before the commencement of the investigation. To hold otherwise would be to exclude from evidence very cogent and relevant material.
Where, therefore, a person after having committed murder, appeared of his own accord before an Additional District Judge, who had no knowledge whatsoever of the back‑ground of the occurrence, and made a clean breast of everything in a written statement duly signed by himself and submitted to the Judge, it was held that the statement made by the accused was admissible in evidence.
Nazis Ahmad v. King‑Emperor A I R 1936 PC 253 considered and distinguished.
Rahim Bakhsh v. Crown P L D 1952 F C 1 and Abul Hossain and another v. The State P L D 1960 Dacca 438 ref.
(e) Penal Code (XLV of 1860)------
----S. 302‑Co‑accused found empty handed at time of murder‑Element, held, one creating doubt about his participation in crime.
R. A. Jermey for Appellants.
Iftikhar‑ul‑Haq Khan for Advocate‑General for the State.
Date of hearing; 21st May 1965.
JUDGMENT
MUHAMMAD AFZAL CHEEMA, J: Faqira and Hamind appellants stood their trial in the Court of the Additional Sessions Judge, Muzaffargarh, under section 302/34, P. P. C. for having murdered Muhammad Ali Shah on the night between the 28th and 29th of June 1963 at Chah Porewala within the Revenue Estate of Ihsanpur, Police Station Daira Din Pariah, District Muzaffargarh. Finding them guilty, the trial Court sentenced both the appellants to death and a fine of Rs. 500 00 each. The convicts have filed an appeal against their conviction and sentence and we have also before us the case for the confirmation of sentences under section 374, Criminal Procedure Code. Both the appeal and the Murder Reference shall be disposed of by this judgment.
2. Briefly stated, the facts of the case are that the deceased and his brothers Abdur Rahim Shah complainant (P. W. 2) and Ahmad Shah (P. W. 3) cultivated land at Chah Porewala which is the scene of occurrence in this case. Their three other brothers held land on different wells at some distance. Abdur Rahim Shah (P. W. 2) and Ahmad Shah (P. W. 3) lived in the same haveli, while the deceased lived in the adjoining haveli at Chah Porewala. About a month and a half prior to the occurrence, Hamind appellant abducted Mst. Ganmi, wife of Karim Bakhsh (P. W. 7) and entrusted her to his friend Faqira appellant, a servant of the deceased. Faqira developed illicit relations with Mst. Gaimi and eloped with her from Chah Porewala. This hurt the dignity of Muhammad Ali Shah deceased being a respectable land owner of the area and within three days of the abduction he got Mst. Ganmi restored, but riot either to her husband Karim Bakhsh (P. W. 7) or to her first abductor Hamind appellant, but to himself. Having taken a fancy for the woman, he wished to marry her and got her marriage with Karim Bakhsh (P. W. 7) dissolved on payment of Rs. 2,000.00 to the latter on the basis of a consent decree issued in favour of Mst. Ganmi by the Civil Judge, Leiah, vide his order, dated the 29th of May 1963, which, is Exh. P. G. As a result of this Mst, Gohar, the wife of the deceased, left him in protest.
3. On the night of the occurrence, Abdur Rahim Shah (P. W. 2) slept in his own haveli, Ahmad Shah (P. W. 3) slept outside his haveli along with Allah Bakhsh (P. W. 4) and Nura (P. W. 5), and the deceased slept on the roof of his bhana (cattle- shed). These places are marked at Nos. 2, 3 and 1 in the site plan (Exh P. J.). At about 11‑30 in the night, the deceased uttered a shriek which attracted P. Ws. 2 to 5 who rushed to the spot from different sides and saw that Faqira appellant was trying to pull out hatchet (Exh. P 1) from the neck of the deceased which got stuck in, while Hamind appellant stood by. On seeing the P. Ws. the appellants jumped from the roof and ran towards the west. The P. Ws. pursued them, but they succeeded in making good their escape in the adjoining jungle. The P Ws, however, having already known both the appellants had little difficulty in identifying them in a moonlit night, it being the 7th day of the lunar mouth. The hatchet was pulled out by Abdur Rahim Shah P. W. and the deceased expired in a short while. It took them some time to inform the other brothers of the deceased on whose arrival Abdur Rahim Shah (P. W. 2) left for the police station and at 4 a.m., after covering a distance of five miles on foot, lodged report (Exh. P. A.) which was recorded by Muhammad Anwar Sub‑.Inspector. Muhammad Anwar Sub‑Inspector (P. W. 14) reached the spot at 6 a.m., prepared the injury statement Exh, P. H.) showing two over‑lapping injuries on the right side of the neck and the right shoulder of the deceased and also prepared the inquest report (Exh. P L.) in which the presence of Allah Bakhsh (P. W 4) and Nura (P. W. 5) had also been mentioned. He sent the dead body to the mortuary at Leiah for post‑mortem examination. He scraped some blood‑stained earth from underneath the cot of the deceased and took it into possession vide memo. Exh. R. B. and made it into a sealed parcel.
4. The post‑mortem examination was performed by Dr. Mahmud Ahmad at about 4‑30 p.m. on the 29th of June 1963. He found a big gaping incised wound 3" x 4", extending from front of right shoulder to front of the neck in an oblique direction, consisting of a medical and lateral half set at an angle. The great vessels of the right side of the neck, the wind pipe, the food pipe, right elavicle, right first rib and dervical vertebrae were cut. There were about 8 ounces of semi‑digested food in the stomach and 6 ounces of urine in the bladder. Although Exh. P. A. does not specifically mention two injuries, but the impression gathered from a perusal of the report (Exh. P. Q.) is that in fact there were two injuries overlapping each other. The doctor stated:
"In my opinion the death was caused instantaneously due to the wounds of the neck which were the nature of sharp‑edged object and could have been inflicted with kulhari (Exh. P. 1). Such injuries were individually sufficient to cause death in the ordinary course of nature."
Since originally only one gaping wound had been described, this created some confusion as to the number of injuries sustained by the deceased. The description given in the injury statement (Exh. P. L.), the perusal of the pictorial diagram contained in Exh. P. Q. and the words "wounds" and "injuries" used by the doctor, definitely indicate that in fact there were two injuries and not one. This was conceded by the learned counsel for the appellants. The importance of this point will be appreciated when it is discussed in its proper context in the judgment.
5. A very significant fact in the case to the voluntary appearance of Faqira appellant in the Court of Kh. Iqbal Ahmad, Additional District Magistrate, Muzaffargarh (P. W. 13) at about 11 a.m. on the 29th of June 1963. It would be useful to reproduce some relevant portion of the statement of the A. D. M. in the trial Court:
"On 29‑6‑63, Faqira accused appeared before me when I was sitting all alone in the court‑room and not even my reader was present there. The accused appeared all alone and there was no other person with him. Faqira accused told me that the police wanted to arrest him in connection with a criminal case and he had come to offer himself for the arrest of his own accord. I told the accused to give me in writing whatever he wished to say. The accused went out of the court‑room and after some time, again came in and gave me his written statement which is Exh. P. P. I read it out to him and he admitted that he correctly recorded Exh. P. P. and that he signed it. The accused also told me verbally as to what he had written. I again inquired from him whether he injured Muhammad Ali Shah with a kulhari. He answered in the affirmative. I ordered his arrest under section 307, P. P. C. vide my order (Exh. P. P. /1). The reason why I ordered the arrest of the accused Faqira under section 307, was that it was not clear either from his statement or from his writing that he committed the murder. Subsequently, I came to know on 2‑7‑1963 that the accused Faqira was wanted in a murder case."
In cross‑examination the witness said that:
"The paper and the ink was supplied to the accused by the Court. The reason why I sent the accused out of the Court to give in writing his statement was that there may be no pressure on him."
In answer to a Court question whether he could identify Faqira accused he deposed:
"I am not sure whether at this stage I would be able to identify Faqira accused. (The witness then looked towards the accused and correctly identified Faqira as the accused who appeared before him on 29‑6‑1963)."
The statement (Exh. P. P.) written by Faqira in his own hand and signed by him is reproduced below:‑
"1 have come after giving kulhari blow on the neck of Muhammad Ali Shah, son of Sardar Ali Shah, at 10 p.m., in the night. I offer myself for arrest in your Court. Muhammad Ali Shah is lying in a serious condition.
Faqir Muhammad, son of Namdar, caste Khokhar. Mauza Ihsanpur, P. S. 29‑6‑1963. Daira Din Pariah."
Obviously, this was not a confessional statement recorded under section 164, Criminal Procedure Code, in strict conformity with the provisions of this section and section 364, Criminal Procedure Code, and cannot be treated as a judicial confession. It is at best an extra‑judicial confession made before a Judicial Officer which was subsequently refracted. As such, its evidentiary value has to be assessed in the context of other available evidence in the case and will be discussed a little later.
7. The appellants pleaded not guilty to the charge, did not give any definite answer to any of the incriminating questions put to them by the committing Magistrate, and deferred their statements till the trial. Even in answer to a question whether he surrendered himself for arrest and gave a written statement (Exh. P. P.) Faqira appellant replied:
"I shall give statement before the Court of Session."
Likewise; no categorical answers were given by the appellant to the question regarding the abduction of Mst. Ganmi. In the trial Court also both of them more or less took the same stand, denied the abduction of Msr. Ganmi, the commission of murder and the recovery of the blood‑stained clothes. Faqira appellant vehemently denied his appearance before the Additional District Magistrate or the making of any statement in writing. Both stated that the case against them had been brought due to the enmity of the P. Ws. The appellants led no evidence in defence.
8. The learned trial Judge having fully believed the eye witnesses, the evidence of recoveries, the evidence of motive and the confessional statement made by Faqira appellant before the Additional District Magistrate, held both the appellants guilty of murder.
9. We must record our ‑appreciation of the argument; advanced by the learned counsel which are discussed below.
10. In the first instance, the position taken up by the learned counsel was that the nature of injuries left no room for the victim to utter .a shriek, attracting the P. Ws, who were asleep at some distance. We fail to see any element of improbability in this. It would, however, be quite different in the case of a stunning blow on the head, smashing the skull and proving fatal. But in a case where two hatchet blows, howsoever severe have been given in succession to a healthy person, the utterance of a shriek would not be only a possibility, but a very, natural probability.
11. The learned counsel found it difficult to believe that the hatchet should have got so firmly embedded in the body or the deceased as to make it difficult for a young man of 20/21 years like Faqira appellant, to pull it out, particularly when the second blow was given on the same point. Firstly, the point and area of impact of the two blows, though overlapping, are not precisely the same. Secondly, in view of the force and violence with which the second blow seems to have been given, as is clear from the post‑mortem examination report (Exh, P. q.) it would be nothing extraordinary if the hatchet were really stuck in as the prosecution would have us believed.
12. The position next taken up by the learned counsel was that Allah Bakhsh and Nura P. Ws. are chance witnesses and their presence at the spot at the material time is not free from doubt. According to Abdur Rahim Shah (P. W. 2), Noora and Allah Bakhsh P. Ws. lived at a distance of one and two miles, respectively, from the place of occurrence and even if Noora had come to remove his luggage, as stated by him, and Allah Bakhsh had come to collect arrears of land revenue, there was no satisfact6ry reason for them to stay for the night at such a short distance from their respective places of residence.
13. Although on reaching the spot, Ch. Muhammad Anwar, Sub‑Inspector (P. W, 14) found both Noora and Allah Bakhsh P. Ws, already present there and mentioned their names in the inquest report (Exh. P. L.) their presence at the material time is not, 'however, free from doubt. According to Abdur Rahim Shah complainant (P. W. 2) they lived at a distance of one and two miles, respectively, from the place of occurrence. Assuming, as stated by Allah Bakhsh P. W. that his village stood at a distance of five miles, an acceptable explanation of the presence of both at the time of the arrival of the police is quite easy to offer and the possibility of their attendance having been procured cannot be ruled out.
14, Ch. Muhammad Anwar Sub‑Inspector (P. W. 14) seems to be at pains to delay his arrival at the‑spot. His assertion that he covered the distance of five miles from the police station to the place of occurrence on foot has got to be taken with a grain of salt. This, considered in the light of his further explanation that he again questioned Abdur Rahim Shah complainant generally about the murder when he reached the spot, becomes rather significant. Normally, there would not be anything unusual about it, but here it was done by, him in order to‑explain away what had been stated by P. W. 3 towards the and of his examination‑in‑chief and by P. W. 4 towards the end of his cross‑examination to the effect that the statement of Abdur Rahim Shah complainant was taken by him when he arrived at the spot. It is not difficult to conceive in view of the cautious attitude of the police in murder cases that they would often withhold entries in the roznamcha and try to visit the spot, if possible, before the formal registration of the case. Thus, it is quite possible that the presence of Noora and Allah Bakhsh may have been procured. Once that is conceded, the suggestion made by the learned counsel for the appellants that their names might have been mentioned on the basis of suspicion, becomes worthy of consideration. The fact is incontrovertible that it being the 7th of Safar (lunar month) and at 11‑30, the time of occurrence, the moon must have gone down near the horizon as described to be "about one kana high" by P.'W. 2. Thus, it is difficult to believe that the moon light was sufficient to permit identification of the culprits by the witnesses who were fast asleep and, being disturbed only by the shriek of the deceased, were attracted to the place of occurrence. In this view of the matter we find that the presence of Noora and Allah Bakhsh P. Ws. at the material time is not established beyond doubt. We, therefore, consider it highly unsafe to place reliance on their testimony. We, however, have every reason to believe that the two brothers of the deceased, Abdur Rahim Shah (P. W. 2) and Ahmad Shah (P. W. 3), who were residing in the same premises, were present at the time of occurrence. Their eye‑witness account also lends support to the view and may be that they might have even been able to identify Faqira appellant who had worked as a servant in the house of their brother for about a year, but in spite of this, as a matter of abundant caution we do not consider it safe to make that the sole basis of conviction unless it is corroborated by independent evidence.
15. It is a unique position, wherein a confession made before a Judicial Officer would still be an extra‑judicial confession and not a judicial confession within the four corners of sections 164 and 364, Criminal Procedure Code. Taking into account the background and the concomitent circumstances of the case, we have not the least manner of doubt that it was voluntary and true, there being absolutely no element of any inducement, threat or promise. Normally, in a judicial confession under section 164 the person confessing would in the first instance express his desire before the police to do so. and would then be taken to a Judicial Officer who would observe the necessary legal formalities to satisfy himself that the statement was made freely and voluntarily. In this case, Faqira appellant approached the Additional District Magistrate entirely on his own without any extraneous influence and orally made a clean breast of his guilt. The Additional District Magistrate asked him to reduce in writing what he wished to say and that too out of the Court, to avoid any psychological influence of the court‑room atmosphere on his mind. He went out and re‑entered with the confessional statement (Exh. P. P.) written in his own hand and signed by him.
The fact that his oral confession was supplemented by a confession in writing in his own hand and signed by him would completely exclude all factors of faulty memory hasty inference or .misinterpretation from which an oral confession recorded at the instance of the confessor is likely to suffer. The Additional District Magistrate had no axe of his own to grind by importing anything into this statement with a view to the false implication of the appellant. No doubt, by and large, an extra‑judicial confession is a weak piece of evidence and its retraction would still reduce its evidentiary value, but the weight to be attached to such evidence would depend on the circumstances of each case. In this case, as stated above, we are fully convinced that it was made truly ‑and voluntarily before a Judicial Officer, who not knowing the background, did not consider necessary the observance of all the formalities provided in sections 164 and 364, Criminal Procedure Code. Even when examined by the Committing Magistrate under section 342, Criminal Procedure Code, as stated earlier, he does not deny the fact of his having surrendered himself for arrest and made the confessional statement in writing.
16. The important question to be determined by us is what is the probative force or evidentiary value of such a confession. We are fully aware of Nazir Ahmad v. King‑Emperor (A I R 1936 PC 253), the famous authority on the subject which set at rest all controversies and divergence of opinion with reference to statements and confessions under sections 164 and 364, Criminal Procedure Code. It was held by their Lordships:
"Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. The rule which applies is a different and not less well recognised rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in. that way or not at all. Other methods of performance are necessarily forbidden. This doctrine has often been applied to Courts--1 Ch. D 426 (19) at p. 431‑and although the Magistrate acting under this group of sections is not acting as a Court, yet he is a judicial officer and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to section 164.
On the matter of construction sections 164 and 364 must be looked at and construed together, and it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity, in the sections themselves."
In their Lordships' opinion the effect of the sections is clearly to prescribe the mode in which confessions are dealt with by Magistrates when made during an investigation, and to render inadmissible any attempt to deal with them by allowing oral evidence. It seems necessary to give briefly the facts of the case which led to this ruling. In the course of investigation of a case of dacoity, coupled with murder, one Mr. L. D, Vasiaht, a First Class Magistrate, on the application of the police and under orders of the District Magistrate proceeded to the scene of dacoity and to the places material to the events connected with it. The accused in handcuff's accompanied him in another car. The object was to give them opportunity of voluntarily leading the way and showing to the Magistrate places where incidents in the crime occurred. The Magistrate excluded the police and was led round by the accused persons who pointed out the places. As to the appellant the Magistrate deposed that he made a full confession to participation in the robbery and to firing a revolver in the course of the pursuit. The Magistrate had made rough notes of what he was told which were destroyed by him after dictating from them a memorandum. The memorandum signed by him was put in evidence containing the substance of what the appellant spoke. A certificate as prescribed under 'section 164, Exh. P. C. was also appended stating in particular that according to the belief of the Magistrate the pointing out and the statements were voluntarily made. As there was no record in existence at the material time there was nothing to be shown or to be read to the accused and to be signed or thumb‑marked by them. Acting on the admissions of the accused, the Sessions Judge found them guilty and the High Court held the evidence of confessions admissible in the form in which it was given.
17. We are in no manner of doubt that the facts of the case before us are quite distinguishable from those before their Lordships and the ruling given by their Lordships has no bearing or application to the present case. In order to appreciate the distinction it would be at this stage useful to reproduce section 164, Criminal Procedure Code: "
"(1) Any Presidency Magistrate, any Magistrate of the First Class and any Magistrate of the Second Class specially empowered in this behalf by the Local 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.
"(2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confession shall be recorded and signed in the manner provided 'in section 364 and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.…
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