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Petitioner: SHER MUHAMMAD and otherss VS Respondent: THE STATE and others
Court Name: Balochistan High Court Judge(s): Raja Fayyaz Ahmed, Muhammad Nadir Khan Title: SHER MUHAMMAD and otherss vs THE STATE and others Case No.: Criminal Appeals Nos.56, 57 and 62 of 2002 Date of Judgment:2003-11-06 Reported As: PLD 2004 Quetta 75 Result: Order accordingly
JUDGMENT
JUDGMENT MUHAMMAD NADIR KHAN, J.---By means of this common judgment, we intend to dispose of the Criminal Appeal Nos.56/2002, 57/2002 and Criminal Appeal No,62 of 2002, as all the three appeals arise out of the judgment dated 5-8-2002 passed by Anti Terrorism Court-I, Quetta, involve similar facts and common law points. 2. Briefly stated the facts of the case are that Crime No,28/2002 under section 302, P.P.C., was registered on 23-3-2002 at about 4-15 p.m on the report of Ghulam Mustafa Ghuman, I.P./S.H.O. Police Station Industrial Area Quetta, stating that on receipt of telephonic information he alongwith his staff reached Syed Motor Garage, Gailani Market Double Road Quetta, where the owner of the garage Nadir Khan informed that foul smell was emitting from the old well situated inside the garage and some object was also seen lying inside the well. Chowkidar Jan Muhammad was sent down in the well, who informed that dead body of an unknown person wrapped in a cloth was lying there, which was brought out. On examination the dead body was found to be of a person about 40/45 years age, who seemed to be Uzbek Afghan refugee. The neck of the dead body on the right side was slit with a sharp edged weapon. The dead body being old was decomposed. The feet of the dead body were tied with rope. It was opined that the un-kown person/persons after killing the person threw his dead body in the well, hence commission of offence under section 302 (b) P.P.C., was alleged. 3. The investigation of the case was entrusted to PW-9 Aurangzeb SI Industrial Area Police Station Quetta. After registration of the F.I.R No,28/2002 Exh.P/1 he visited the spot, where also the SHO Ghulam Mustafa Ghuman and DSP Wazir Khan Nasar were present. The site inspection note Exh.P/5-B and map Exh.P/9-A were prepared. The rope from the feet of deceased and the Chadar
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were taken into possession vide, memo Exh.P/5-A. The blood stained clothes of deceased produced by Abdul Shakoor were seized vide memo Exh:P/5-C and on 13-4-2002 accused/appellants Fatima Bibi and Rehmatullah were arrested. Accused/appellant Fatima Bibi made pointation of place of incident, memo Exh.P/5-D and map Exh.P/9-B were prepared. The crime weapon/knife was recovered on the pointation of accused Fatima Bibi, which was seized vide memo Exh.P/5-F and sealed in a parcel. The iron box used for shifting of the dead body produced by accused/appellant Fatima Bibi was taken into possession vide memo. Exh.P/5-E. On 23-4-2002 accused/appellant Rehmatullah got recorded his statement under section 164, Cr.P.C. On 14-6-2002 accused/appellant Sher Muhammad was arrested. The blood stained clothes of deceased and the knife were sent to FSL for chemical examination. Report Exh.P/9-F received from F.S.L. Challan of the case was submitted before Special Judge ATC-I, Quetta for the trial of accused/appellants Rehmatullah, Sher Muhammad and Fatima Bibi. The charge under section 302/201/34, P.P.0 was read over to them, which they denied. Thereafter, prosecution examined as many as nine witnesses to establish the charge. P.W.1 Ghulam Mustafa Ghuman Inspector Police is the complainant, who in his statement reiterated the averments of his report Exh.P/1-A on which F.I.R Exh.P/1-B was registered. P.W.2. Abdul Shakoor brother of deceased stated about the marital life of his brother Juma Gul and accused/appellant Fatima Bibi. He- stated about arrest of his nephews Sher Muhammad and Abdul Wahab, whereupon he went to police station, on the direction of police he went to civil hospital for identification of the dead body, which he identified to be of his brother Juma Gul. Accused/appellants Fatima Bibi and Rehmatullah were brought from Qandahar by Ghulam Yahya and Amanullah. P.W.3 Nadir Khan the owner of the garage, wherefrom the dead body was recovered stated that accused/appellant Rehmatullah was employed with him, who left 4/5 days before the dead body was recovered. P.W.4. Jan Muhammad Chowkidar brought out the dead body from the well. P.W.S. Wazir Hussain Khan SI was witness to the seizure memos Exh.P/5-A and Exh.P/5-F: P.W.6 Syed Muhammad Haroon Agha was posted as Judicial Magistrate-II/MFC Quetta. On 24-4- 2002 he recorded the confessional statement of accused/appellant Rehmatullah. He produced the envelope Exh.P/6-A, Marasla Exh.P/6-B, statement Exh.P/6-C and certificate Exh.P/6-D. P.W.7. Dr. Muhammad Anwar posted as MLO Civil Hospital Quetta on 23-3-2002 examined the dead body and issued certificate Exh.P/7-A. P.W.B. Haji Muhammad accompanied Yahya to police station from where they went to hospital and identified the dead body to be of Juma Gul brother of Yahya. P.W.9. Aurangzeb was the Investigation Officer. 4. Prosecution closed its case after producing above mentioned tune witnesses. Thereafter accused/appellants were examined under section 342, Cr.P.C., wherein they denied the allegations made by prosecution. Accused/Appellants Rehmatullah and Mst.Fatima Bibi opted to make statement under section 340(2), Cr.P.C., wherein they claimed to be innocent. Accused/appellant Sher Muhammad refused to make statement on oath while none of the accused/appellants produced any defence witness. The trial came to an end by means of judgment dated 5-8-2002, whereby accused/appellants were convicted in the following terms: "In view of the above discussion the accused persons have committed the murder of deceased Juma Gul with their common intention in a preplanned manner, therefore, committed the offence under section 302/201/34, P. P.C. Therefore, the accused Fatima Bibi, Rehmatullah and Sher Muhammad are found guilty and convicted under section 302 (c) P.P.0 and sentenced to life imprisonment. Further as mentioned hereinabove that accused Rehmatullah committed offence
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under section 201 P.P.0 and he is further convicted under section 201 P.P.0 and sentenced to three (3) years' R.I. The sentences of accused Rehmatullah be run concurrently. Accused persons are in custody, they are extended with benefit of 382-B, Cr.P.C." 5. Mr.Muhammad Qahir Shah, the learned counsel for the appellants Mst.Fatima Bibi and Rehmatullah challenging their conviction argued that no direct evidence against any of accused/appellants is available so as to connect them with the commission of the offence. The confession of accused/appellant Rehmatullah being exculpatory was recorded on 12th day of his arrest was the result of torture, which is in conflict with the medical evidence and the recoveries, hence the same cannot be made basis for conviction. Besides the retracted confessional statement of accused cannot be used against co-accused. The recovery of knife which was made in violation of provisions of section 103, Cr.P.C., and was also not supported by the confessional statement; hence the recovery was of no evidentiary value. Besides conviction of Fatima Bibi under section 302, P.P.0 was not warranted by law, as her case was covered by section 306(c) read with 308, P.P.C, as she was the Wali of the children of deceased. 6. Mr. Amanullah Tareen the counsel for accused/appellant Sher Muhammad contended that except retracted confession of co-accused there was no evidence to connect him with the commission of offence in any manner, whereas the retracted confession of accused without independent corroboration could not be made basis for conviction of accused. 7. Mr. Sultan Mehmood Assistant Advocate General supporting the conviction of accused/appellants controverted the contentions so raised by the counsel for accused/appellants and argued that; (i) Accused/appellant Rehmatullah was proved to be working in the garage, wherefrom the dead body was recovered. (ii) Both the accused/appellants Rehmatullah; Fatima Bibi slipped away to Afghanistan without informing any of relatives of Juma Khan about his absence/disappearance. (iii) .Accused/appellant Fatima Bibi, after arrest made pointation of the place of incident and got recovered the crime weapon which was proved to be stained with human blood and the iron box used for shifting of the dead body of Juma Khan .To the garage. (iv) Accused/appellant Rehmatullah confessed the commission of offence, contents of which reflect the voluntary-ness of accused/appellant Rehmatullah in making the statement, Specific role was ascribed to each of the accused including accused/appellant Sher Muhammad, hence all the accused/appellants in the circumstances were proved to have committed offence under section 302(b), P.P.C. (v) The learned state counsel came up with plea for enhancement of the sentence of accused/appellants as there was no circumstance to, award lesser punishment. 8. The submissions made by the leaened counsel for the parties considered, record of the case examined. The case of persecution as setup in the F.I.R was that on 23-3-2002 P.W.3 Nadir Khan detected foul smell emitting from the well situated in his garage, situated at Dnubk Road Quetta. Further an object was spotted inside the well On the above information police checked the well through PW-4 Jan Muhammad Chowkidar, whereupon it transpired that the dead body wrapped in a cloth was lying in the well The dead body was brought out from the well which on inspection by the police officer reflected that after committing Qatl the dead body was thrown in the well However, same remained unidentified, which was shifted to hospital. Statement of. P.W.2 Abdul Shakoor shows that after recovery of the dead body his nephew Sher Muhammad and Abdul Wahab were arrested from their house, whereupon he alongwith P.W.8 went to police station to inquire the reason about their arrest. Police directed them to go to civil hospital and to identify the dead body, where the dead body was identified by him to be of his brother Juma Gul who was married to Fatima Bibi. Accused/appellant Fatima Bibi was not available at her residence, she
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alongwith her children and, brother Rehmatullah had gone to Qandahar (Afghanistan). Fatima Bibi and Rehmatullah were brought to Pakistan and handed over to Industrial Area Police Station on 13- 4-2002. However arrest of accused/appellant Sher Muhammad as stated by P.W.2 does not find any support from the record; whereas the Investigation Officer has shown the date of arrest of accused/appellant Sher Muhammad as 14-6-2002. 9. Defence did not dispute the facts with regard to recovery of dead body of Juma Khan from the well of the garage of P.W.3 Nadir Khan where it was dumped after his Qatl. However prosecution in order to prove the unnatural death of Juma Khan examined P.W.7 Dr. Muhammad Anwar, M.L.O. Civil Hospital Quetta who examined the dead body and recorded following observations:-- (1) Odor smell positive. (2) Old dead body about 10 to 14 days. (3) Cut mark of right side neck. (4) Putrefied. (5) Pupils are dilated. Cause of death. Cut throat right side leading to excessive hemorrhage shock and death caused by sharp weapon. According to the Medical Officer, he issued M.L.C. After examination of the dead body of Juma Khan. M.L.C. Was produced by him as Exh.P/7-A under his signature. The unshaken testimony of the expert and findings of PW-7 recorded by him proved without any shadow of doubt that deceased Juma Khan met with a violent death. 10. Accused Fatima Bibi was wife of deceased Juma Gul. They were residing in the house situated at Pashtoon Abad near Manan Chowk Quetta, where accused Rehmatullah brother of accused Fatima Bibi was also residing. However when the dead body of Juma Gul was identified on 27-3- 2002 both Rehmatullah and Fatima Bibi were not available at their house and they were reported to have shifted to Qandahar. They were sent back to Pakistan and handed over to Investigation Officer on 13-4-2002. Accused Fatima Bibi on the very first day of the interrogation is alleged to have made pointation of the place of incident i,e, the room of house where deceased Juma Gul was done to death, further, she led to the recovery of blood stained knife used in the commission of offence and iron box used for shifting of the dead body to the garage where it was dumped in the well. Three separate memos. Exh.P/5-D, Exh.P/5-E and F xh P/5-F were prepared. The memo. Of pointation of place of incident shows that accused/appellant not only pointed out the place of incident, had also confessed the commission of offence and implicated her brother Rehmatullah hence the said memo based on the statement of accused/appellant made to police during investigation cannot be admitted in evidence, however; the pointation of place of incident is found to be discovery as before the pointation of same by accused/appellant it was not known to the Investigating Officer, which in view of Article 40 of Qanun-e-Shahadat Order is found to be an admissible piece of evidence hence the same can be admitted in evidence if supported by independent evidence. The admissibility of recovery of knife allegedly used in commission of offence and the iron box used for shifting of dead body allegedly made on the pointation of accused were challenged on the ground that provision of section 103, Cr.P.C., were violated as no independent witness was associated to attest any of the said recoveries. Attestation of recovery by private witness is requirement. Of section 103, Cr.P.C., which apply to the recoveries made as a result of search of place and not on the pointation of accused hence provision of section 103, Cr.P.C., cannot be made applicable in the present case as the recoveries were effected on pointation of accused (Fatima Bibi) which in view of Article 40 of Qanun-e- Shahadat Order 1984 can be admitted in evidence if proved by prosecution. For such view we take support of the judgment of Hon'ble Supreme Court in case Muhammad Akbar v. State 1995 SCM R 693, wherein their lordships were pleased to record following observation:-
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"The objection raised by the learned counsel with regard to the violation of the provisions of section 103, Cr.P.C., by not joining the two respectable of the locality to witness the recovery is devoid of force. In the instant case, neither search warrants were issued by the Magistrate for the search of the house of the petitioner nor the police had searched the house/place of its own. The petitioner himself led the police to his house and pointed the place wherefrom the gun was recovered. Section 103, Cr.P.0 would apply to a case where the police conducts search of the house/place to recover a thing from which search is to be made and not to a case where anything is to be discovered in consequence of the information given by or on the pointation of the accused. The recovery to be made on the pointation of the accused is relevant under Article 40 of the Qanun-e- Shahadat, 1984. The association of the two respectable inhabitants of the locality is not required in a case where the accused himself leads the police to a particular place and the thing is recovered on his information and/or pointation." Hence the objection so raised being without any substance doesn't effect the admissibility of the recoveries made on the pointation of accused/appellant Fatima Bibi. The blood stained clothes of deceased were seized vide memo Exh.P/5-C soon after the body was recovered from the well on 23-3-2002. This fact was not disputed by the defence. The blood stained clothes alongwith knife was referred to FSL Crime Branch Quetta, from where report Exh.P/9-F with following opinion was received:-- "Chemical and serological examination of the above suspected blood stained articles were carried out and revealed that they all were stained with HUMAN BLOOD." The above report remained unchallenged and the same leaves no room to doubt that the knife recovered on the pointation of accused Fatima Bibi and the clothes of deceased were stained with human blood. Before making any observation with regard to above pieces of evidence, we deem it proper to examine the confessional statement allegedly made by accused/appellant Rehmatullah. Accused Rehmatullah after his arrest was handed over to Investigating Officer, on 13-4-2002 whose confessional statement was recorded under section 164, Cr.P.0 on 24-4-2002 before P.W.6 Syed Haroon Agha Judicial Magistrate-II, Quetta. The admissibility of the statement has been attacked on two scores. Firstly that the statement was recorded with a delay of 12 days was the result of torture and secondly it does not fit in the case of prosecution. Admittedly the statement has been recorded on the 12th day of arrest of accused/appellant while the accused at the time of recording of his statement in reply to question No,6 of the pro forma attached to the statement stated that on the first day he was beaten up but the very next question with regard to any inducement or coercion made by police for making of the statement was replied in negative. The answer given by accused to the question No,6, of the pro forma itself reflects that he was not under any pressure at the relevant time and the statement was made voluntarily. Hence in such view of the matter beating on the first day of his arrest alone does not render the statement inadmissible. Besides the voluntary-ness of the statement can also be ascertained by the very contents of the statement itself which on perusal shows that the accused gave even the minute details of the whole episode which commenced from the incident when his brother-in-law threatened his sister that he will make her disappear and no body would be able to find her dead body. The statement also reflects that his brother-in-law suspected his wife to be involved in immoral activities, while accused Sher Muhammad also had a quarrel with Juma Gul, who was aggrieved as Juma Gui had a TV at his house and he also taunted him that in his absence his wife i,e, accused Fatima Bibi leaves the house on which Juma Gul gave beatings' to his wife. On the next day accused Mst.Fatima Bibi had a quarrel with Sher Muhammad with regard to his complaint made against her, whereupon Sher Muhammad expressed his intention to kill Juma Gul, to which accused Rehmatullah and his sister accused Fatima Bibi, agreed and consented. Accused Rehmatullah brought the knife; Sher Muhammad was concealed behind the curtain in
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front of the wall covering the cart. After taking food when Juma Gul went to bed, accused Rehmatullah came out, Sher Muhammad entered the room and occupied the bed next to Juma Gul, which was meant for Rehmatullah. Sher Muhammad took the knife which was placed by him under the pillow and stabbed Juma Gul in his abdomen and after Juma Gui died, Sher Muhammad left the dead body at the disposal of the accused Rehmatullah and accused Mst. Fatima Bibi. Accused stated that how the dead body was shifted in the iron box to the garage, where he was employed and how the same was dumped in the well wherefrom the same was subsequently recovered. Accused also stated about the advice given to them by Sher Muhammad to leave for Qandahar, whereupon he obtained Rs,300 from the owner of the garage and also sold certain household articles by which he collected Rs,1700, thereafter they went to Qandahar. On being asked about Juma Gul, they used to make excuse that he has gone to procure. I.D. Card. According to accused, Ghulam Yahya father of Juma Gul, who was present in the Qandahar came to Quetta and on his return, he lodged the report against them whereupon they were arrested and after 12 days they were sent to Chaman, and thereafter handed over to Quetta police. Accused stated that on the first night he and his sister were beaten up by the police but they expressed their ignbrance however; after about one and half hour his sister disclosed that they have committed the murder, he was made to listen the narration made by his sister, whereafter he also confessed the commission of offence. Accused finally stated that on his statement he and his sister were involved in the case and Sher Muhammad was released. The statement of accused except the manner in which the deceased was stabbed is found to be in consonance with the evidence and the circumstances reflected from the .Record showing that accused was residing with his sister in the same house. The dead body of deceased was recovered from the well of garage of P.W.3 Nadir Khan. Accused was employee in the garage of PW-3 Nadir Khan, who did not come for his job for the last 4/5 days prior to the recovery of dead body. Both the accused/appellants i,e, Rehmatulah and Fatima Bibi shifted to Qandahar without informing any relative of deceased Juma Gul. After recovery of dead body, the brother of deceased managed to bring them to Chaman from Qandahar. Accused Fatima Bibi on the very first day of her arrest made pointation of the place of incident and got recovered the knife used in the commission of offence and the iron box in which the dead body was taken to the garage. The recovered knife and the blood stained clothes of deceased were found to be stained with human blood. All the circumstances fully corroborate the confessional statement, which contains the minute details which could not have been known to police if not stated by accused; hence we do not find any reason to doubt the voluntary-ness of the confession of accused/appellant Rehmatullah at the time of making the statement. Now adverting to the point regarding seat of injury inflicted on the person of Juma Gul who was asleep the same at the first place is in conflict to one mentioned by medical officer after examination of dead-body. The specification of injury as given in the confession, as we understand is either deliberate or due to lack of knowledge as the deceased was stabbed in the darkness of night and that too is attributed to accused/appellant Sher Muhammad and there is nothing on the record to show that accused/appellant Rehmatullah had any chance to inspect the dead body to see the injury, hence the seat of injury as described does not to affect the statement as a whole, which is found to be voluntary and supported by independent evidence and strong circumstances involving the maker in the planning sharing common intention and facilitating the commission of offence with the other two accused persons. Mere wrong description of the seat of injury in the circumstances is not to render the confessional statement untrue. For such view we are supported by the judgment A.I.R 1960 Mysore 163 titled Ganesh v. Raghavendra, wherein observation to the following effect was recorded.:--
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"It was contended by Sri Dayananda that even if the confession is held to be voluntarily made, it cannot be said to be true. He points out that while the confession does not disclose that the accused gave a number of blows with the sickle, the medical evidence in the case discloses a number of incised injuries on the body of the deceased. It is, therefore, argued by him that the version given by the accused in his confession statement, in regard to the attack not being in accord with the medical evidence, must be held to be untrue. We do not find any force in this contention. Merely because, the accused has not stated in his confession statement that he inflicted a number of blows, it does not mean that his confession in regard to his attack itself, must be viewed as being untrue. We find from a perusal of the original confession statement which is in Kannada that the expression used is "Kadgolinind aatana Kuttigeyamele Kadadenu". This statement does not exclude, more than one blow having been dealt. Further, the number of blows dealt is really a matter of detail, which need not be viewed as being necessary in a confession statement. In the case of Subramania Goundan v. State of Madras, reported in AIR 1958 SC 66, a similar contention was put forward, but was repelled by the Court. It was held in that case that the absence of elaborate details in a confession cannot brand it as false. Under these circumstances the contention that the confession statement is untrue, has to be rejected." Accused/appellant Fatima Bibi was the wife of deceased Juma Gul. As per statement of PW-2 Abdul Shakoor the brother of deceased, four children were born out of the wedlock. Hence the Wali of deceased as per section 305, P.P.0 are his wife and four children. The children are admittedly decedent of the wife also who in the present case is the offender. The accused/appellant Fatima Bibi taking advantage of said relation pleaded that in view of section 306, P.P.C. She is not liable for conviction under section 302, P.P.C. As her case falls within the ambit of section 308, P.P.C. We are unable to…
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