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Petitioner: THE STATE VS Respondent: KHAN AFSAR AND OTHERS
Court Name: Sindh High Court Judge(s): Durab Patel, Muhammad Hayat Junejo Title: THE STATE vs KHAN AFSAR AND OTHERS Case No.: Criminal Acquittal Appeal No. 97 of 1967 Date of Judgment:1969-07-30 Reported As: 1970 P Cr. LJ 64 Result: Appeal partly allowed
JUDGMENT
JUDGMENT M. HAYAT JUNEJO, J.-The four respondents in this acquittal appeal, namely, Khan Afsar, son of Akbar, aged 24 years. Mohammad Farid, son of Dilawar, aged20 years, Jawed Khan, son of Laiq Khan, aged 25 years and Mohammad Yousuf, son, of Amirzada, aged 30 years, were tried by the learned Additional Sessions Judge, Karachi (Mr. Ghulam Hussain S. Ansari), for offences under sections 302 and 120-B, P. P. C. For the murder of deceased Umrao Khan, son of Pir Mehmood, aged 40 years. 2. The prosecution case in brief was that respondents Khan Afsar and Mohammad Yousuf were employed as Chowkidar and driver of the car respectively at the bungalow of Seth Ibrahim, P. W. 1. They were, however, both dismissed from service sometime before the present incident and P. W. Ibrahim had .Employed deceased Umrao Khan as his Chowkidar. The deceased used to sleep in his garage. Respondent Mohammad Yousuf, thereafter worked with different people but could not remain long with them also. As he was unemploy--ed, respondent Khan Afsar came to him and took him to the hotel of respondents Mohammad Farid and Jawed Khan. Soofi the absconding accused was also there. It was conspired there that a dacoity should be committed in the house of Seth Ibrahim after the respondents had procured a vehicle for that purpose. 3. On 26th January 1964, at about 10-30 p. m. The four respondents alongwith absconder Soofi were seen on the road in front of the house of Seth Ibrahim by P. Ws. Haroon and Mirza Tasaduq Ali, who had both come there to visit Seth Ibrahim and were leaving for their respective houses. P. W. Haroon is a relation of Seth Ibrahim while Mirza Tasaduq Ali was a close friend and both of them used to visit the house of P. W. Ibrahim frequently and had seen the two respondents Khan Afsar and Mohammad Yousuf several times. They, accord--ingly, knew them very well. Khan Afsar and
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Mohammad Yousuf on seeing the two witnesses saluted them and had some conversation with them. On 27-1-1964, Seth Ibrahim woke up at 5 a. m. As it was the Holy month of Ramazan and called his Cowkidar who had to open the gate as usual but had not done so that morning. On getting no response from the Chowkidar P. W. Ibrahim came to the garrage and saw the Chowkidar lying there with a rope tied round his neck. Ibrahim got frightened and rushed to the Ferozabad police station and reported the matter to the police. This was recorded as Exh. 4, and a copy thereof was sent to S. I. P. Feroze Ali through Constable Wali Dad. Inspector Zahiruddin S. H. O. Ferozabad was also informed on telephone, and he left for the bungalow No. 159-G, in P. E. C. H. S. Belonging to P. W. Ibrahim. S. H. O. Zahiruddin saw the dead body of the deceased Chowkidar which was tied with a rope round the neck. The hands of the deceased were tied with handkerchief and his legs were tied with the rope of the cot. The mashirnarna of the wardat Exh. 8 was prepared. As all the three gates of the house were locked and the keys were also not found near the Chowkidar, the police arranged to send for a key-maker, to come to the scene and prepare the keys of the three locks. The mashirnama of the opening of the locks and the keys was prepared which is Exh. 9. After this, a formal First Information Report was recorded in 154, Cr. P. C. Book at Ferozabad police station at a distance of 2 miles at 8-45 a. m. The same morning. After recording the statements of P. Ws. Ibrahim, Haroon, Mirza Tasaduq Al I Baig and others, S. H. O. Zahiruddin transferred the case to the C. I. A. On 28th January 1964. 4. Inspector Mohammad Ayub of the C. I. A. Took up the investigations op. 29th January 1964.On 1- 2-1964, he arrested respondent Muhammad Yousuf from Chakiwara and interrogated him. On Mohammad Yousuf's pointing out the remaining three respondents were also arrested by Inspector Mohammad Ayub on the same day. From the person of Khan Afsar three keys in a ring and a knife were recovered under mashirnama Exh. 17 in the presence of mashir Munawar Ali Khan, P. W. 8. These keys were identified by P. W. 1 Ibrahim as the three keys of the locks which were put on the three gates of his house 5. Respondent Jawed Khan produced a time piece article B/1 under a mashirnama, Exh. 80, in the presence of mashir Munawar Ali. This time piece was also identified by P. W. Ibrahim, who stated that he had .Given the same to his Chowkidar for waking him up before the time of `Sahri'. P. W. Ibrahim also produced a cash memo. Exh. 5, showing that he had purchased the same time piece from Hyderabad. 6. On 3rd February 1964, respondents Khan Afsar and Jawed Khan were sent to Mr. Anwar Shaikh, Additional City Magistrate for having their judicial confessions recorded. Jawed Khan refused to make a confession and was sent to judicial custody by the learned Magistrate. However, as Khan Afsar was prepared and willing to make a confession, the learned Magistrate warned him that he was not bound to make a confession and that if he did so it could be used as evidence against him. The accused was also informed by the Magistrate that whether he made a confession or not he would under no circumstances be handed over to the police custody. The learned Additional City Magistrate took the additional precaution of remanding the accused to judicial custody up to 5-2-1964 for reflec--tion 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 Magis--trate was thoroughly satisfied that the confession was being made voluntarily that he recorded the same (Exh. 26). This confession is a very lengthy document and gives all the details of the various incidents in which the four respondents and absconder Soofi were involved. 7. On 7 2-1964, respondents Mohammad Farid and Mohammad Yousuf were also sent to the same Magistrate for having 'their confessions recorded. Mohammad Farid refused to make a confession and was sent to judicial custody. As Mohammad Yousuf was willing to make a confession, the learned Magistrate after giving him all the warnings sent him to the judicial custody so that he had
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time for reflection while he was away from police influence. On 8-2-1964, after the accused was produced again before him, the learned Magistrate repeated all the warnings and assured the accused that he would not be sent back to police custody under any circumstances whether he made the confession or not. After the Magistrate was thoroughly satisfied that the confession was being made voluntarily he recorded the same (Exh. 2.5). This confession is a very lengthy document and gives all the details of the various incidents. For the purpose of this acquittal appeal we may only reproduce the relevant passages thereof which read as follows :- "I know Farid and Jawed and Khan Afsar and Soofi, all. I have also worked as a Driver of Ibrahim Seth. Khan Afsar was employed at the place of the said Seth before myself but he was turned out by the said Seth during his employment, while I continued to render service there. I had studied up to 8th class at my native place. After Khan Afsar, I was also turned out from there. Then I became a Driver with Dr. Mrs. Gul Bano. After having worked there for two months I left that job also and became a Driver of Shaukat Mirza. About one month ago, while I had given up service of Dr. Mrs. Gul Bano and till then I had not got any other service and was unemployed, Khan Afsar came to my house and carried me with him to Natha Khan Gothe where Jawed and Farid had their hotel. Farid, Jawed and Soofi were also there. Khan Afsar proposed that dacoity should be committed at the house of Seth Ibrahim . . . . . . . .--- "Thereafter, we went to Natha Khan Gothe and at Javed Hotel all of us held consultations about going to the said bungalow without any taxi that, day. In the meantime I had got the job of Driver with Shaukat Mirza on 16th January. For six days I rendered service there and on twenty second January obtained one day leave. But for five days continually I remained absent. Thereafter I went. When I had so gone there (sic) illegible had already taken place. It was probably 28th January on that day Shaukat Mirza had asked me to attend after two or three days for duty. Then at eleven o'clock in the night all the five of us proceeded together from Natha Khan Gothe. After taking seats in a bus we' alighted near the Jail beyond the Old Exhibition ground. From there we went towards the said bungalow. On the road there near the K. D. A. Office Haroon Seth and another person were standing. We offered compliments to them, while a Motor Rickshaw arrived in which Haroon, Seth and the said person sat and went away. When we reached the said bungalow, light was lit there, and almost all persons were awoke there. So all the five of us sat inside the big pipes which were lying there on the passage in front of the said bungalow. When the light points were put off and all of them had gone to sleep, all the five of us jumped over the wall where buffaloes were tethered on the back side and entered inside the said bungalow. We searched for the Chawkidar who could not be found outside. Then I went to see locks. Khan Afsar asked me to bring a `Sarya'. At that time I went to the garrage to fetch a `Sarya'. I saw that the Chawkidar was asleep there. So I came back and informed all of them accordingly, about the Chawkidar's being asleep there. From one side two of us and from the other side the remaining three of us entered inside the garrage. Soofi took the Chawkidar's throat under his control while Jawed caught hold of the chord of his throat. Khan Afsar had brought a rope with him. Jawed and Soofi took that rope from Khan Afsar and placed it around the Chawkidar's neck and tightened it. While the Chawkidar was struggling for life, his hands were at that moment tied with a shirt. Javed fastened his handkerchief around both the arms of the Chawkidar and also tied him up with Newar. Then lifting him up, he was placed on a cot and after covering his face with a shalwar, a blanket was covered over him. While the said Chawkidar was being killed thus, Khan Afsar was probably holding his face while Farid had caught hold of his testicles and was also beating him with force. I also gave a kick to the said Chawkidar whom four persons had already thrown down. I had not been able to find a place inside the said garrage to render assistance. From pillow under his head Khan Afsar nicked up keys and one rupee currency note. Jawed lifted a time piece from inside the said garrage. Thereafter, we went at the entrance of the said house where Seth Ibrahim usually went to sleep. Khan Afsar asked me there to cut the
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telephone wires. After climbing upon Khan Afsar's shoulders I according cut the wires of the telephone. Then I began to, open the lock of the verandah there with keys but it could not be opened. After that effort was made to open the said lock by mcaus. Of a Sarya but the door had been made of iron grills :ind its lock had been put from inside. So it could not be opened. As the time of Sahri was approach--ing, we therefore, went back thinking that persons would be getting up for keeping fast. After coning out from there we came near the jail. From there we took seats in a truck of Reti Line. A Makrani driver was driving the said truck wherein two labourers were also sitting. The slid truck carried us to Natha Khan Gothe where we alighted. Then all of us proceeded to our houses." We may state here that both Khan Afsar and Mohammad Yousuf, who made the confessions were sent to judicial custody by the learned Magistrate immediately after their confessions were recorded. After the usual investigations were completed all the four respondents were challaned to stand their trial for the offences as stated above. 8. The defence of the respondents was a bare denial of the prosecution case. They failed to explain any of the circum--stances 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. Accord--ing to respondent Khan Afsar he did not know what was written on, that paper as he was illiterate. 9. The defence of respondent Mohammad Yousuf 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's was recorded by the Magistrate. 10. The fact that deceased Umrao Khan met his end by violence is not disputed. Dr. Major Hassan who performed the post-mortem found as many as 11 injuries on his person. These were mostly scratches and abrasions barring injury No. 1 which was a ligature mark 12" x --" completely in circle in the neck above the thyroid in front anu 2--" below left ear and 2" below right ear there are multiple contusion marks on left side front of the neck and some on the right collar bone and injury No. 4 which was Groove I" wide .Along both the arms and contusion with the same going transversely in front of the chest along .The nipples.- Both these injuries were caused by rope. The death was due to asphyxia resulting from throttling and strangulation with a rope. The medical evidence, accordingly leaves no room for doubt that deceased Umrao Khan was murdered. 11. The only questions, 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. 12. 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 confessions, Exh. 26. It is more or less identical to that of respondent Mohammad Yousuf, relevant passages whereof have been reproduced in paragraph 7 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. Anwar 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
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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 confessions to be voluntary and true. The accused Khan Afsar was immediately thereafter sent to judicial custody. 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 himself accepted the confession as voluntary and true as would appear from the following observations in paragraph 12 of his judgment in this case :- "The accused has given a detailed confession. The confes--sion is in chaste Urdu. The accused was arrested on 1-2-64, and was produced for confession on 3-2-64. The accused was sent to judicial custody for 4th and produced on 5th for confession and on that day his confession was recorded. The accused has retracted from his confession and has alleged beating at the hands of the police. Since the confession is retracted it cannot be acted upon unless it is corroborated by independent evidence in material particulars. I shall now consider the evidence in corroboration." We may also mention that there has been nothing in the cross---examination of Inspector Mohammad Ayub to throw any doubt on the voluntary nature of the confession of the respondent Khan Afsar. The confession itself is elaborate and mentions all the details which could find a place only in a genuine docu--ment. Moreover, in his confession Exh. 26, respondent Khan Afsar has attributed the most important part of strangulating the deceased to himself. 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. 13. This confession is also corroborated by the evidence of P. W. 4 Mirza Tasaduq Ali and P. W. 5 Haroon, who saw the respondent near the scene of offence shortly before the occurrence. P. W. 5 Haroon is a relation of P. W. Ibrahim while P. W. 4 Mirza Tasaduq Ali is his friend. They used to visit the house of Haji Ibrahim frequently during the last several years and knew respondent Khan Afsar and Mohammad Yousuf, who had worked in the same house as chowkidar and driver of the car respectively. Khan Afsar who was one-eyed was a Chowkidar for more than a year. Both the witnesses knew Khan Afsar and Mohammad Yousuf very well as they used to see them repeatedly in the house of P. W. Ibrahim. 14. The witnesses stated that on the night between 26th and 27th January 1964, they had gone to meet P. W. Ibrahim in the evening. At about 10-30 or 10-45 p. m. They left his house and came on the road to get a taxi for going home. They saw the five respondents on the road near the house of P. W. Ibrahim. Of them Mohammad Yousuf and Khan Afsar who were known to them saluted them. The witnesses asked them as to where they were going. On which the two respondents replied that they were on their way to meet some acquaintance. The next morning the witnesses were informed on telephone that Haji Ibrahim's Chowkidar had been murdered the previous night. Both the witnesses went to the scene of occurrence and found a key-maker working to open the locks of the three gates of the house. The witnesses stated that they were subsequently put to an identification test and from a row of 30-35 persons they correctly identified all the four respondents. We regret to say that no evidence of this identification test was led in this case. Mr. Anwar Shaikh, the learned Magistrate, who conducted the test was not examined. Nor was the memo. Of the test brought on record, thereby, considerably reducing the value of the evidence of P. Ws. Haroon and Mirza Tasaduq Ali as against respondents Mohammad Farid and Jawed Khan, who were not previously known to these witnesses. Respondents Khan Afsar and Mohammad Yousuf were however, employed in the house of P. W. Ibrahim which these witnesses used to visit frequently. These respondents were, accordingly, well known to them and on the night of the incident they even had a conversation with them.
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15. Both these witnesses are respectable businessmen. P. W. Haroon owns an oil mill while P. W. Mirza Tasaduq Ali is the owner of a biscuit factory. That they are relation and friend of P. W. Ibrahim, and used to visit his house frequently has been admitted by these respondents in their statements recorded under section 342, Cr. P. C. Both these respondents Khan Afsar and Mohammad Yousuf have also admitted that they were in the employment of Seth Ibrahim and that both these witnesses knew them. The fact that they were employees at the house of Seth Ibrahim where they used to be seen frequently by these witnesses is also not disputed before us by the learned counsel appearing on behalf of these respondents. No enmity of any kind has been even alleged against these witnesses by any accused. We repeatedly asked Mr. Ahmad Sated, the learned counsel for the respondents to show us anything in evidence which could throw the slightest doubt or suspicion on the testimony of these respectable and independent witnesses. Mr. Ahmed Saeed candidly conceded that he was unable to point out anything against them except what was observed by the learned trial Judge in his judgment, namely, that they had a momentary glimpse of the respondents and consequently their identification of the accused who were not previously known to them may not be conclusion as there was possibility of an honest mistake in such identification. It is, accordingly, clear that as far as respondent Khan Afsar and Mohammad Yousuf were concerned the important evidence of these two witnesses has gone totally unchallenged and provides a very strong corroboration to the confessions of Khan Afsar and Mohammad Yousuf. 16. However, this is not all. The confession of respondent Khan Afsar is also corroborated by the recovery of three keys in a ring which was recovered from his shirt pocket. These were secured under a Mashirnama, Exh. 17 in the presence of mashir Munawar Ali Khan, P. W. 8. The keys were subsequently identified by P. W. 1 Ibrahim as those of his three locks. That these keys were removed from the Chowkidar at or about the time of his death is obvious from the fact that the keys could not be discovered the next morning and on that account a key---maker was called to open the locks of the three. Gates as has been said in the evidence of all the witnesses. The learned Additional Sessions Judge has discarded this important circumstantial evidence by observing as follows :- "The mere fact that these keys fit the locks of the gate of Seth Ibrahim is no reason to believe that these are the keys of the locks of gate of Seth Ibrahim, Besides these are ordinary worthless keys and it does not appeal to common sense that the accused would carry the keys on his person. Since they are of no use to him he could as well throw them away after the crime. This piece of evidence does, not corroborate the confession." We do not agree with the reasoning of the learned Additional Sessions Judge. The fact that these keys were taken away at or about the time of murder and were produced by respondent Khan Afsar immediately after his arrest and also the admitted position as stated by the learned Judge himself, namely that "these keys fit the locks of the gate of Seth Ibrahim- would be an important piece of circumstantial evidence which strongly corroborates the retracted judicial confession. The accused may not have thrown away the keys either because after keeping them in his pocket he forgot them or he might have thought it better to keep them as they could be useful to him for committing some other robbery or dacoity in the near future. Whatever be the position, an important piece of evidence like this should not have been discarded by the learned trial Judge on such flimsy grounds. 17. There is also the additional circumstance against respondent Khan Afsar inasmuch as the retracted judicial confession of the co-accused Mohammad Yousuf can also be taken into consideration against him under section 30 of the Evidence Act. 18. There is also evidence on record showing that the respondents used to move about together and had gone to P. W. 9 Faqir Mohammad for Charas. We shall discuss this evidence while dealing with the case of respondents Jawed Khan and Mohammad Farid. At this stage we may only state
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that this evidence is not conclusive as to the crime with which respondents were charged, and we do not wish to place, any reliance thereon. The judicial confession of respondent Khan Afsar corroborated by the evidence of P. Ws. Haroon and Tasaduq Ali, the recovery of the keys and the retracted confession of co-accused Mohammad Yousuf leaves no room for doubt that Khan Afsar was responsible for the murder of deceased Umrao Khan. 19. We shall now consider the case of respondent No. 4, Mohammad Yousuf. As in the case of respondent Khan Afsar, the prosecution case against Mohammad Yousuf also rests on his judicial confession, Exh. 25, recorded on 8-2-1964, by the same Magistrate. The learned Magistrate took all the precau--tions which he took while recording the confession of Khan Afsar and we hold…
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