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Petitioner: PUNHOON AND ANOTHER VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): M. A. Rashid, Jamaluddin H. Ahmad Title: PUNHOON AND ANOTHER vs THE STATE Case No.: Criminal Appeal No, 15 and Confirmation Case No, 8 of 1975 Date of Judgment:1976-08-11 Reported As: 1977 P Cr. L J 221 Result: Order accordingly
JUDGMENT
JUDGMENT ' M. A. RASHID, J.-Punhoon and Khan Muhammad alias Khanoo were tried by Sessions Judge, Jacobabad, for an offence under section 302/34, P. P. C. They both were found guilty and on conviction both have been sentenced to death. Their death sentence is before us for confirmation under section 374, Cr. P. C., while they have filed joint appeal as well against such conviction. This judgment will dispose of both of them. ' Appellant Khanoo is the nephew of accused/appellant Punhoon. Punhoon has two other brothers Usman, who is father of Khanoo, and Muhammadoo. They originally belonged to Bhagnari in Kachhi district of Baluchistan where their widow sister Mst. Pathani also lived with them along with her four children from her deceased husband Muhammad Bux. Due to drought the family was forced to leave the area and came to live at Khanpur Taluka Usta Muhammad. Here Mst. Pathani developed illicit intimacy with deceased Mooso. About a year and a half before the occurrence Mst. Pathani eloped with Mooso. Due to shame Punhoon, his brothers and the family left Khanpur and went to Pat Feeder area where they started cultivation. According to defence version appellants Punhoon and Khanco, leaving the family behind, came to Jacobabad in search of the delinquent couple. Here they also worked as labourers. ' On 1-5-73 deceased Mooso, along with deceased Mst. Pathani, and his brother complainant Khair Muhammad came to Jacobabad for purchases. They had finished purchases and were to return to their village. In order to catch the bus for their village they came to Manjhipur bus stand in Jacobabad city, at about 2-45 p.m. They had placed their goods in the "truck" and were waiting when, according to the F. I. R., all the three brothers namely Usman, Muhammadoo and Punhoon along with Khanoo appeared at the scene, Punhoon allegedly challenged Mooso that as he had
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abducted Mst. Pathani, therefore, he would not be spared. Saying this he and Usman caught hold of Mst. Pathani and inflicted knife injuries upon her while Khanoo and Maharnmadoo grappled with Mooso and Khanoo inflicted knife injuries to him. Cries raised by Khair Muhammad attracted many people including the two police constables P. W. Abdul Ghafoor and P. W. Khudabux. Usman and Mohammadoo are alleged to have escaped on arrival of the police constables while Punhoon and Khanoo were caught at the spot. Mooso died instantaneously, but Mst. Pathani was still alive. She was taken to the hospital by constable Khudabux where she died soon after. Khair Muhammad accompanied by constable Abdul Ghafoor and the two accused, who were in his custody, reached the city Police Station, Jacobabad and lodged the report at 3 p.m. ' P. W. Yar Muhammad, the S. H. O. Recorded the F. I. R. And took in possession two blood stained knives produced by constable Abdul Ghafoor. A mashirnama was accordingly prepared. Clothes of the accused were bloodstained. They were also secured under a mashirnama. After recording the statement of accused persons and P. W. Abdul Ghafoor, he proceeded to the scene of offence. He found the dead body of Mooso lying there. He prepared the mashirnama of the wardat, inquest report of the dead body and secured blood-stained earth from the scene of occurrence. He sent the dead body of Mooso to the hospital for post-mortem examination through constable Nisar Ahmad. Then he himself repaired to the hospital where he prepared the inquest report of Mst. Pathani who had died before his arrival. He handed over her dead body for post-mortem examination. He also prepared the mashirnama of the injuries on the person of accused Khan Muhammad who had received such injuries during the fight. ' Dr. Imdad Ali, medical officer, civil hospital, Jacobabad, received injured Mst. Pathani at 3-30 p.m. On the same day i. e. 1-5-73. He allegedly recorded the dying declaration of Mst. Pathani at 3-35 p.m. Which is available on record as Exh. 6. On examination he found the following injuries on her person: "(1) Incised wound about 5' x 24' x intestines out of the wound with bleeding on left hypochondriun. (2) Incised wound about 1" X 1" X up to ribs deep on left back on left auxiliary fold. (3) Incised wound about 1-1/2"X 1/2" X abdominal cavity deep below injury No, 2. (4) Incised wound about 2' X 1/2 X up to bone deep in front of left ear. (5) Incised wound about 3/4" x x muscle deep on right humbor region. (6) Two incised wounds about r x I. Each skin deep on front of upper part of right forearm. (7) One linear scratch about 2" x 1/8' below right eye. (8) Incised wound about 4" x1/8' x skin deep on right side of nose. (9) Incised wound about 1/8' > skin deep lateral to right eye. (10) Incised wound about it' X1/8" X skin deep on right eye brow. ' The injured expired at 3-45 p.m. And he carried out the post-mertem examination on her dead body from 5-05 p.m. To 5-50 p.m. On internal examination he found the chest wall and abdomen wall cut on the site of injuries. Paritonium was cut at the site of injuries and peritonial cavity contained small quantity of blood. Stomach, small intestines as well as large intestines all had stab wounds. In the opinion of the doctor the death had occurred due to shock and haemorrhage. Injuries Nos. 1 and 3 were individually sufficient to cause death in the ordinary course of nature while all the injuries were collectively sufficient to cause her death. All injuries, were antemortem in nature and death had occurred, according to the doctor within two hours of the infliction of the injuries. ' Dr. Imdad Ali also conducted post-mortem examination on the dead body of Mooso which started at 5-50 p.m. And was finished at 6-35 p.m. On the same day. On external examination he found the following injuries on his person: "(1) Incised wound about 2' x 1' x abdominal cavity deep with tenth rib cut on right lower lateral chest.
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(2) Incised wound about 1' x t" x abdominal cavity deep on right lumber region below injury No, 1. (3) Incised wound about 1" x muscle deep 1" lateral to injury No, 2. (4) 2 incised wounds about 1" x 1' x muscle deep on right upper scapular region. (5) 2 incised wounds about half inch into /' of into upto bone deep below injury No, 4 on right back of chest. (6) Incised wound about 3' x half inch muscle deep on opigastriun. (7) Incised wound about 3' x half inch and half inch x intestine out of the wound with bleeding on left lumber region. (8) Incised wound about 1' x half inch into muscle deep on left posterior axilary fold. (9) Incised wound about half inch into4 x muscle deep behind left ear. (10) Incised wound about 1-1/4" x 1/4 x muscle deep at left side of neck." ' On internal examination the doctor found thorax wall stabbed on the site of the injuries. The walls of the abdomen and peritonium were also stabbed on the site of the injuries. Peritonial cavity was full of blood. Small and large intestines, right lobe of lever and the spleen were all stabbed. In the opinion of the doctor the death had occurred due to shock and haemorrhage; that injuries 1, 2 and 7 were individually sufficient to cause death in the ordinary course of nature. The injuries which were caused by sharp-edged weapon were antemortem. In his opinion the probable time between the death and the injuries would be five minutes. ' On 2-5-73 appellants Punhoon and Khanoo were produced before the Mukhtiarkar and 1st Class Magistrate Jacobabad, for recording their confession. In their confessions, which are identical, they have given the background of their habitation at Bhagnari, widowhood of their sister, migration due to drought conditions and ultimate elopement of Mst. Pathani with Mooso. Then they gave the details of the search of the two lovers, whom the two of them found at Manjhipur Bus Stand on the fateful day. According to the confessions Punhoon inflicted injuries upon Mooso while Pathani was attacked by Khanoo. Khanoo claims that he received knife injuries at the hands of P. W. Khair Muhammad. ' After some search for the absconding accused S. H. O. Challaned the present appellants on 7-6- 73. At the trial prosecution produced Khair Muhammad complainant and police constables Abdul Ghafoor and Khudabux as eye-witnesses. Prosecution also relied upon the dying declaration of Mst. Pathani, and the judicial confessions made by the accused persons. ' In his statement under section 342, Cr. P. C. Accused Khanoo denied his implication in the crime. He claimed that he came to the bus stand after hearing commotion and finding accused Punhoon grappling with Mooso deceased he tried to separate them and, in the process received the injuries. Punhoon accused, however, stated that it was he alone who had killed both Mst. Pathani and Mooso due to ghairat. The learned trial Judge found that the dying declaration of Mst. Pathani was of no significance, but he relied upon the statement of complainant Khair Muhammad which in his opinion, was duly supported by the evidence of P. Ws. Abdul Ghafoor and Khudabux and the judicial confessions. In view of this evidence the learned trial Judge found them guilty and sentenced them as aforesaid. ' Mr. Ibrahim Memon the learned counsel for the appellants had attacked the judicial confessions on two counts. Firstly, it is contended that they are not voluntary in nature, and secondly, being retracted these confessions needed independent corroboration, which was lacking in this case. In order to show that the voluntary nature of the confession was vitiated the learned counsel has stated that the Magistrate recording these confessions had not warned the two accused that they would not be handed back to the police. In this connection he has drawn our attention to the confession wherein, in the first part, the warning that the confessor would not be handed over to the police is not recorded although other warnings that the confessor was not bound to make the statement and if made such statement would be used against him have been duly recorded. But
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the certificate appended to both the confessions duly indicates that the confessor was warned by the Magistrate that while he is not bound to make a statement he would not be handed back to the police whether he made such a statement or not. Not only that but the Magistrate, when he appeared as a witness in the witness-box, stated on oath that such warnings were duly administered to both the confessors. In these circumstances where the Magistrate has stated on oath, and has recorded in the certificate appended to the confessions, that such warnings were made, it cannot be held that no such warning was administered. ' In this connection the learned counsel has also relied upon the police diary of 8th May, 1973. Following is the translation of the relevant entry in the diary: "The above-mentioned accused, namely, Punhoon and Khan Muhammad alias Khanoo Machi have been arrested in this case. Their remand period will expire today in the evening. The report for further remand of (7) seven days in judicial custody was prepared and addressed to the Mukhtiarkar and F. C. M., Taluka Jacobabad. The same will be submitted in the Court in the morning. The diary is submitted." ' From this entry the learned counsel contends that the accused persons were, in actual fact, in the custody of the police, and that they were produced by the police before the Magistrate. But no such presumption can be drawn from this entry. It merely states that the judicial remand of the two accused was to expire on that day and the report in this behalf was to be submitted to the Magistrate. The learned counsel contends that it was for jail authorities to move the Court for extension of remand. This contention flows from an incorrect appreciation of the duties of the jail authorities. The jail Authorities are required to keep the persons in their custody under a valid legal 'warrant. If a person is remanded to judicial custody for a certain period the jail authorities are required to keep him only for that period. On the expiry of that period, if no fresh remand order is received by them they are bound to release that person. It is for the police to point out to the Ilaqa Magistrate, about the state of affairs with respect to the judicial custody of a person. This entry indicates that the police was taking steps, in accordance with such duty. No presumption can be drawn from this entry that the accused persons were in police custody. ' As regards the corroboration of confession which is retracted the rule of law as laid down by the Supreme Court in Minhoon's case (PLD 1964 SC 813) is that a retracted confession whether judicial or extra-judicial, when found to be true and voluntary does not need any further corroboration at all. Such a confession can, in law, validly form the sole basis of conviction of the maker thereof if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture, coercion or inducement. However, it was held that in case of such retracted confession, if not corroborated in material particulars, it would not be prudent to base the conviction in a criminal case on its sole strength. In this regard the latest pronouncement of their Lordships of the Supreme Court is contained in Dhani Bakhsh v. State (1). The late Chief Justice of this Court in Rasulbux v. State (2) while following this rule of prudence gave reasons for it 'as to re-assure the Court that in convicting the appellant upon the confession alone it is acting safely'. So the rule of corroboration is not the rule of law but a rule of prudence, and is required to be followed where retracted confession forms the sole basis of conviction. It would, therefore, be necessary that when a confession is retracted corroboration should be found for its material particulars. It is always the satisfaction of the Court, as regards the true and voluntary nature of the confession. In the present case voluntary nature of the confession is doubtful. Appellant Khanoo in the material part of his confession, states as follows :- "I am originally resident of Bhagnari, and due to not raining dearth took place in the area, about 7/8 years ago, and we managed to cultivate land of Yaqoob Khan Manjhani in Khanpur. My paternal uncle Punhoon and Usman also came to reside there. They also possess profession of cultivation. Mooso Mangrio by caste was also residing near our village and was a cultivator. Mst. Pathani was
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my paternal aunt. She was married with Muhammad Bux having 4 children, i. e., one son and three daughters from this wedlock. Her husband was dead and therefore she was living with my paternal uncle along with her children. My paternal aunt had illicit connections with Mooso Mangrio and therefore he had abducted her. We thoroughly searched for them but they could not be traced out. Then we left the village and settled at Pat Feeder. About a month ago I and my uncle set out for their search and came to Jacobabad where we were labouring and also continued their search. On 1-5-73 at Manjhipur bus stand, about 2-30 p.m. We came to Manjhipur bus stand and found Mst. Pathani, Mooso Mangrio and his brother Khair Muhammad Mangrio standing there. Seeing them we challenged him that he is Karo and will not be spared. Then Punhoon inflicted knife injuries to Mooso and I inflicted knife injuries to Mst. Pathani. Khair Muhammad Mangrio attacked upon me and caused knife injuries to me. Due to injuries Mooso fell down and died but Mst. Pathani was {{FOOT NOTE}} (1)PLD1975 SC 187 (2) 1974 P Cr. L J. 325 {{FOOT NOTE}} ' alive. We both kept standing there. Khair Muhammad went running to police station for report and police came there and arrested us, we had murdered Mooso Mangrio and Mst. Pathani as Karo- Kari." ' Punhoon, in the material part of his confession states as follows:- "I am originally resident of Bagnari. Due to not raining dearth took place in the area and therefore we managed to cultivate the land of Yakoob Khan Manjhani in village Khanpur. My nephew Khan Muhammad was also cultivating there. My brother Usman was also with me. Mooso Mangrio was also living in the same village near us. Mst. Pathani was my sister and she was married with Muhammad Bux, having three daughters and one son from this wedlock. He had died and therefore my sister was living with me along with her children. Mst. Pathani had illicit connections with Mooso Mangrio and Mooso Mangrio abducted her away. We did not lodge any report with the police and we left the village and settled at Pat Feeder. We continued their search. About a month ago I and Khan Muhammad again set out in search of Mst. Pathani and reached Jacobabad. We laboured there and continued their search. A day before i. e., on 1st May 1973, at Manjhand time at 2-30 p.m. We came at Manjipur bus stand and found Mst. Pathani, Mooso Mangrio and his brother Khair Muhammad Mangrio standing there. We seeing him challenged that he is Karo and he will not be spared. I at once attacked Mooso with knife and Khan Muhammad attacked Mst. Pathani with knife. Mooso fell down and died there due to knife injuries. Mst. Pathani also fell down but she was alive at that moment. Khair Muhammad also attacked Khan Muhammad with knife and he sustained injuries. We both kept standing there, but Khan Muhammad Mangrio went running to the police station and police came there and we both were taken to police station. We had murdered Mooso Mangrio and Mst. Pathani as Karo-Kari." ' A mere perusal of the two statements would indicate that they are verbatim copy of each other. The sequence of facts is exactly the same. The choice of words, the construction of sentences and even the arrangement of putting them forward is strikingly similar. It all indicates as if the two statements were made in a mechanical manner. The slight changes that have occurred are with respect to the relationship of the persons involved, with the maker of these confessions. For instance, Mst. Pathani was the aunt of Khanoo and sister of Punhoon. So she had to be referred to differently in the two confessions. But for such differences the two confessions are the same. This is highly unnatural. Every person has his own style of presenting things and events, because a single fact or event does not leave similar impressions on two minds, nor are two persons so alike that they would present an event in exactly similar words. Therefore, the confessions, as they are worded throw some amount of doubt if they can be termed so voluntarily or truly made.
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' In such circumstances it would be all the more necessary to follow the rule of prudence as regards corroboration of the retracted confessions. One of the material facts that has come on record is that accused Khanoo was found injured soon after the occurrence. Mashirnama of his injuries was prepared by the investigating officer. Dr. Imdad Ali had examined him and found the following injuries on his person: "(1) Incised wound about I" x 1/2 up to muscle deep on left scapular region. (2) Cut scratch about 2 on left iliac region. (3) Incised wound about half an inch into quarter of inch skin deep in front of left shoulder. (4) Cut scratch about 4' on left face and neck below left ear." ' These confessions are completely silent as to the manner how these injuries came to be inflicted on accused Khan Muhammad. In his statement before the Court, however, Khan Muhammad has tried to explain these injuries. But so far as the confessions are concerned they remain silent on this aspect. ' The confessions are also contradicted by the alleged extra-judicial confessions made to the two constables. P. Ws. Abdul Ghafoor and Khudabux had reached the spot soon after the incident and they both stated in cross-examination that accused Punhoon told them that it was he alone who had killed both the deceased on account of `ghairat'. ' On these two material particulars the judicial confessions have failed to elicit any corroboration from other material on record. It would therefore be unsafe to use these confessions against the accused. ' The original story, as set up in the F. I. R. Was the four assailants had attacked the two deceased. Usman and Muhammadoo are alleged to be absconding. P. W. Abdul Ghafoor, a police constable, had stated so in the lower Court. There he claimed that he saw all the four accused giving knife blows to the deceased. At the trial, however, he stated that when he arrived at the scene of occurrence, he saw one person lying on the ground and a woman lying injured nearby, and that two accused persons were standing there. Because of the departure made by him from his lower Court statement he was declared hostile by the prosecution and permission was sought to cross- examine him. Such permission was granted and ultimately his statement before the lower Court was brought on record under section 288, Cr. P. C. At the request of the Public Prosecutor. The learned counsel has vehemently challenged this transfer on the ground that the witness was not confronted with the contradictions contained in his lower Court statement before bringing it on record. Section 288 allows discretion to the Court to treat an earlier statement of a person as evidence in a case before such Court. While exercising such discretion the Court has always to give reasons for preferring the earlier statement to the one made at the trial. This view was taken in Lalu v. Crown (1). But apart from that the exercise of this discretion can be made only when firstly, the earlier statement should have been duly recorded, under Chapter XVIII of the Code, in the presence of the accused; secondly the witness concerned is produced before the trial Court; and finally the provisions of Evidence Act are fully complied with. The phrase 'subject to the provisions of the Evidence Act, 1872', as used in the last part of section 288, Cr. P. C., has always been treated to mean that a witness is confronted, in terms of section 145, Evidence Act, with all the contradictions made by such witness in his subsequent statement from the one made earlier. This view was taken in Fateh Beg v. Crown (2) and Hakim Gul v. State (3). Mr. Murtuza Hussain has, however, relied upon the case of Falak Sher (4) and Ahmad Din v. State (5) to canvass the point that no such confrontation is necessary. But in Falak Sher's case the main question before their Lordships of the Supreme Court was whether the statement transferred under section 288, {{FOOT NOTE}} (1) PLD 1954 FC 95 (2) PLD 1952 Lah. 275 (3) PLD 1964 Pesh. 1 (4) PLD 1975 SC 179
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(5) PLD 1970 SC 21 {{FOOT NOTE}} ' Cr. P. C. Would form the basis of conviction against the appellants without any corroboration. But while examining the conditions necessary for invoking the provisions of this section their Lordships have held that: "Although the section itself does not prescribe that the witness should be contradicted at the trial by his previous deposition, yet as a matter of common sense and prudence it is necessary that the witness should be cross-examined, under the provisions of section 145 of the Evidence Act, with reference to his previous statement, before the same is transferred to the Sessions file to be treated as substantive evidence in the case." ' In Ahmad Din's case transfer of statement under section 288 was done because although there was no contradiction in the statement as far as examination-inchief was concerned, but the witness had resiled from his confessional statement during cross-examination. It was held that in such circumstances confrontation with earlier statement was not necessary because the earlier statement was being proved in accordance with section 157 of the Evidence Act. But as regards the cases where a witness contradicts himself in examination-in-chief this authority also lays down the same principle in the following words:- "If, however, a witness is hostile from the start and makes statement in examination-in-chief at the trial different from the statement made in the committing Court and it is intended to transfer his statement in the committing Court to the sessions record under section 288 of the Code of Criminal Procedure for being used as evidence, it is necessary to draw the attention of the witness to that part of the statement which is inconsistent with the statement at the trial." ' In these circumstances the transfer of the statement of P. W. Abdul Ghafoor, made by him in the lower Court, was not in accordance with law. Another interesting aspect of the matter is that though Khudabux has at the trial stated exactly what Abdul Ghafoor said but he was…
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