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Petitioner: REHMAT alias RHAMAN alias WARYAM alias BADSHAH VS Respondent: The STATE
Court Name: Supreme Court of Pakistan Judge(s): Qaisar Khan, Malik Muhammad Akram, Muhammad Yaqub Ali Khan Title: REHMAT alias RHAMAN alias WARYAM alias BADSHAH vs The STATE Case No.: Criminal Appeal No. 52 of 1976 Date of Judgment:1977-04-04 Reported As: PLD 1977 Supreme Court 515 Result: Order accordingly
JUDGMENT
JUDGMENT MUHAMMAD YAQUB ALI, C. J.--Rehmat, appellant, who bears a number of aliases, was convicted by the Additional Sessions Judge, Lahore, on the 16th February, 1972, for the abduction, rape and murder of Mat. Rashida Bano and sentenced under section 366, P. P. C. to 10 years' R. I., under section 376, P. P. C. to transportation for life and under section 302, P. P. C. to death. The appeal preferred by him was dismissed and on a reference under section 374 of the Code the sentence of death was confirmed by a Division Bench of the High Court of Lahore. Leave to appeal was granted to the petitioner on jail petition on 2-9-1974. The essential facts of the case may be briefly stated thus : On the 31st August, 1970, at about 7 a.m. the dead body of a young woman was discovered by Muhammad Shafi, P. W. 8, near the railway line, close to the residential quarter of A. W. 1. He gave this information to the Police at Shahdara Railway Station and lodged F. I. R. (Exh. P. B/1) at Police Station Shahdara in which only the discovery of an unidentified body of a woman was mentioned. A case under section 302, P. P. C. was registered and photographs of the deceased were published in the newspapers to elicit information about the identity of the deceased. On 11-9-1970, Faqir Muhammad, P. W. 9, appeared at P. S. Shandara and identified the photograph as that of his daughter Mat. Rashida Bano who was missing since about 12-8-1970. He also identified the clothes which Mat. Rashida Bano wore on the day she had disappeared from his house in Garb Maharaja, District Mang. By a sheer coincidence Faqir Muhammad had, on 31-8-1970, lodged a report at P. S. Garh Maharaja to the following effect That his daughter Rashida Bano was suffering from a prolonged illness and the parents suspected that she was under the influence of evil spirits. In order to rid her of this malady, the mother of Mat. Rashida Bano approached the appellant who, at the time, was living at village Sialkot, P. S. Garh Maharaja and posed as an 'Amir one who can rid persons of evil spirits. The appellant assured the mother that Mst. Rashida Bano was
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indeed under the influence of spirits and if she was not treated she would die. The appellant undertook to treat Mst. Rashida Bano and for this purpose shifted to the house of Faqir Muhammad. To allay his suspicions, the appellant swore on the Holy Qur'an that he looked upon the wife of Faqir Muhammad as his sister and Mst. Rashida Bano as his own daughter. The appellant and one Ghulam who had accompanied him from village Sialkot, stayed at the home of Faqir Muhammad for a period of twenty-two data. To treat Mst. Rashida Bano, the appellant remained with her in a room in the house and recited Dam. The appellant also warned Faqir Muhammad that any adult person, who tried to look into the room while the treatment was being administered, would go blind. About a week later Faqir Muhammad enquired after Mst. Rashida's health and she told him that a strange thing had happened, she recounted how, while the appellant was standing beside her, some coins (raizagari) rained upon her. To dispel her father's doubt she produced a small bundle containing Rs. 10 in small change. Asked to explain this phenomenon, the appellant said that Mst. Rashida had found favour with the Jinnat (spirits). The following day Mat. Rashida Bano told her father. Faqir Muhammad, that while the appellant was reciting his '.Amal' over her she felt showers of currency notes which vanished as she opened her eyes. A few days later the appellant topped these performances by 'doubling' a ten-rupee note in Faqir Muhammad's presence who was now completely convinced of the appellant's power and gave the appellant Rs.3,100. His wife too gave all her jewelry for 'doubling'. Thereupon, in the presence of Faqir Muhammad and his wife, the appellant gave the money and jewelry to Mst. Rashida Bano with the direction to place them under the prayer mat in the room where Dam was recited. The appellant went into the room and re-appeared after a while to inform Faqir Muhammad that the Jins who are to double the money and jewelry have gone away to some other place and would only return in the morning, and advised that they should take back the money and jewelry. At this Faqir Muhammad was completely taken and told the appellant to keep the money and the jewelry with him. The appellant and Mat. Rashida Bano, thereafter, entered the room and were not seen again. The appellant was arrested on the 18th December, 1970, by Muhammad Yusuf, S. I., P. W. 13. An identification parade was held on the 22nd December by Mr. laved Ahmad Mufti, P. W. 3, Magistrate 1st Class, at which Faqir Muhammad correctly identified the appellant. A pair of shoes (P/2), left behind by the appellant were recovered from the house of Faqir Muhammad. The recovery was proved by Muhammad Siddique, P. W. 11, and Muhammad Hassan, P. W. 12. In their presence the appellant was made to wear them, the shoes fitted him. It was noticed that a cut in the left shoe corresponded to a corn on the toe of the appellant Muhammad Siddiq, P. W. 11, and Muhammad Hassan, P. W. 12, also deposed that in their presence the appellant had led the police to the house of Faqir Muhammad. The medical evidence revealed that the injuries on the deceased consisted of multiple contusions over the cheeks, lips, nose and chin and also a ligature all around her neck. Death was caused by asphxsia due to strangulation. Two vaginal swabs sent to the Chemical Examiner were found to be stained with semen. As a result of investigation, the appellant was charged for the abduction, rape and murder of Mst. Rashida Bano. At the trial the prosecution also produced Chiragh Bibi, P. W. 10, who deposed that in the month of December, 1970, the appellant had, on a pretext of curing her son of evil spirits taken her to Khanna Dogran and kept her there for seven days, during which period he committed sexual intercourse with her. She also identified the appellant in Court. The appellant in his statement under section 342 of the Cede denied the charge and stated that he had been falsely implicated. No evidence was led or explanation rendered in support of his innocence. In the High Court, the learned Judges observed that the entire evidence against the appellant was circumstantial but they were satisfied that 1-- "Since the deceased was last seen in his company before they disappeared from the house of Faqir Muhammad P.W. 8, ... it must have been the appellant who subsequently subjected her to sexual intercourse and eventually murdered her." In this view the appeal by Rehmat was dismissed and the sentence of death was confirmed. The sentences awarded under the charges of abduction, rape and causing the disappearance of the evidence of crime were maintained.
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Leave to appeal was granted on 2-9-1'74 on a jail petition to consider whether the evidence on record, which is wholly circumstantial, was sufficient to warrant conviction in the case. Learned counsel for Rehmat has urged before us that the circumstances on which both the Courts below have relied is the evidence that the deceased was last seen in the company of the appellant. It was contended that this circumstance, by itself was not sufficient to sustain conviction on the charges of murder and rape. He cited some reported cases in support of this proposition. In Besant Singh v. Emperor, the accused was one of two persons in whose company the deceased was last seen alive, subsequent to his dis appearance, the accused led the police to the place where the deceased was buried. It was held that though 'grave suspicion' attached to the accused the circumstances were not sufficient to establish his guilt because of the possibility that the deceased may have been murdered by another person. There were three accused persons in the case out of whom two had been acquitted by the trial Judge. In Siraj v. The Crown, there was no direct evidence of the murder, the evidence against the accused was, inter alia, that he was the last person seen with the deceased. His conviction was set aside because the deceased's payment diary indicated that two other persons had visited the deceased after the accused had called on him. In Karamat Hussain v. The State, the conviction was set aside because; in the words of Hamoodur Rahman, C. J. :-- If the extra-judicial confession is disbelieved, and the recoveries are not connected with the crime in question, then it is clear that, in a case of this nature, where the motive is of an extremely weak nature, no conviction can be based merely on the evidence of the fact that the deceased was last seen together with the appellant." On the other side the learned counsel for the State referred us to a number of decisions in which conviction was maintained on the evidence of the accused having been last, seen with the deceased and the failure of the accused to give a satisfactory explanation of how the deceased happened to be killed. In Abdus Samad v. The State, the evidence against the accused, charged with the offence of raping, and murdering a little girl, was that she was last seen in his company and he had also led to the recovery of her body from a remote place exclusively within his knowledge. There was also an incriminating recovery from the spot where the deceased was found which implicated the accused. On this evidence, conviction was maintained and the appeal dismissed with the observation: "....two circumstances mentioned above ('Last seen' and knowledge of place 'where body found') were in my opinion, sufficient to establish the charges of kidnapping and murder against the accused, being sufficient to exclude all possibility of his being innocent of the death of the child." Learned counsel for the State also referred us to The State v. Manzoor Ahmad. In this case the deceased and accused were last seen entering a room in a building in Mohalla Krishan Nagar, Lahore, at 11 a.m. The room was in the exclusive possession of the accused. Half an hour later, the accused was seen leaving the building. At 10 p.m. on the same day, the body of the deceased was found in the same room. It was observed that en such circumstances which are not readily capable of any explanation consistent with the innocence of the accused, then a heavy onus rests upon the accused to furnish an adequate explanation for such evidence. In R. v. Nash, a woman was seen standing near a well with her child. She made some false statements regarding the whereabouts of the child. Later the child's dead body was recovered from the well. Affirming her conviction, Lord Coleridge, C. J., said: "The facts which are proved called for an explanation". On a balance of the decided cases it appears that the circumstance of the deceased having been last seen in the company of the accused is not b itself sufficient to sustain the charge of murder. Further evidence is require to link the accused with the murder of his companion. Such as incriminating recoveries at the instance of the accused, a strong motive or the proximity of the time when they were last seen together and the time when the decease was killed. Only then will the accused be called upon to give an explanation of the demise of the person who was last seen alive in his company. Having considered the relevant authorities, we may now examine the evidence in the case. The statements of all the P. Ws. establish that the appellant stayed a the house of Faqir Muhammad and that he absconded with Ms. Rashida Bano on or about the night of 12th August and 13th August, 1970. Th appellant1 2 3 4 5 6
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also took away with him the cash amount of Rs. 3,100 given to him by Faqir Muhammad and old pieces of jewelry entrusted to him by the wife of Faqir Muhammad. The manner In which he tricked the witnesses to part with their valuables indicate the ingenious character of the appellant The evidence of Chiragh bibi, P. W. 10, that the appellant fraudulently personated as an 'Amil' undertook to cure her son, who was suffering from some malady and on this pretext took her away to his house and committed sexual intercourse with her for several days, is relevant as evidence of the appellant's conduct but not of the murder of Mst. Rashida Bano. Beyond this it does not further the prosecution case that the appellant is responsible for the murder of Mst. Rashida Bano or for committing rape on her shortly before she was strangulated at a place nearly 100 miles away fro: village wherefrom she had been adbucted 20 days earlier. On the other band there are one or two circumstances which favour the appellant. Firstly, Ghulam, the Chela of the appellant, had accompanied him and Mat. Rashida Bano on the night when they disappeared from the house of Faqir Muhammad, He was present in the house on the evening of the 12th August and neither Faqir Muhammad nor his wife have made any mention of him thereafter. Secondly, there is a distance of space and time between the point where they were last seen together and the recovery of the dead body of Mst. Rashida Bano on the morning of 31st August. And finally there is no apparent reason why the eppellant should have murdered Mst. Rashida Bano who had come under his spell completely and had eloped with him taking with her the money and the jewelry which belonged to her parents. It is obvious, therefore, that some other events had taken place which culminated in the death of Mst. Rashida Bano which the prosecution has failed to unearth. If a proper investigation had been undertaken and the movements of the appellant traced from the time he had left the house of Faqir muhammad till the time of his arrest, some valuable evidence may have come to light as to where Mst. Rashida Bano was lodged and where she was last seen by the neighbours in the company of the appellant. Nor were any efforts made to trace Ghulam, the Chela of the appellant. His interrogation too, might have yielded some clue to the whereabouts of the deceased after she had left the house of her parents. Thus there are missing links in the case which do not warrant 376, P. P. C. There is, however, ample evidence of abduction of Mst. Rashida Bano and misapprapriation of the sum of Rs, 3,100 and the jewelry belonging to the wife of Faqir Muhammad by the appellant. It is deposed by Faqir Muhammad that the deceased and the appellant entered a room in his house for reciting Dam as usual. He left his shoes outside the room to indicate that both he and Mst. Rashida Bano were still inside, Consequently Faqir Muhammad and his wife believed the following morning that the appellant was inside the room although he had left with Mst. Rashida Bano during the night. Faqir Muhammad identified the appellant at a parade held by a 1st Class Magistrate on 22-12-1970. It is also in evidence that after his arrest on 18-12-1970 the appellant led the police to the house of Faqir Muhammad at Garh Maharaja. This corroborated the statement of Faqir Muhammad that the appellant had resided in his house until he eloped with M. Rashida Bano on the night of 12- 8-1970. In the light of the circumstances narrated above, we see no reason to differ with the appraisal of evidence by the Courts below on the charge under section 366, P. P. C. In the result the appeal by Rehmat is partly allowed. His conviction and sentences under sections 302 and 376, P. P. C. are set aside but the conviction and sentence of 10 years R. I. under section 366 is maintained. Order accordingly. Qaiser Khan, J.--- I agree. MUHAMMAD AKRAM, J.--I have the advantage of having gone through the judgment proposed by my Lord, the Chief Justice. I respectfully agree with his conclusions that while maintaining the conviction and sentence awarded to the appellant under section 366, P. P. C. his conviction and sentence under section 302 and 376, P. P. C. be set aside. I would however, like to add my reasons for it. In this case the essential facts have already been adequately stated by the Chief Justice in his judgment and it is unnecessary for me to burden this record in recapitulating them in extenso. Suffice it to mention here that according to the evidence on or about the night between the 12th and 13th of August 1970, Rehmat appellant and ,'list. Rashida Begun deceased were last seen entering one of the rooms in the house of her father, Faqir
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Ahmad P. W., situated in village Garh Maharaja District Jhang and they disappeared from there during the darkness of the night. She remained all along missing from her parents' house and was neither seen nor heard of until on 31st August 1970, at about 7-00 a.m. her dead body was discovered lying near the railway line, close to the residential quarter of A. W. 1, in the area of Police Station, Shandara, at a distance of more than 100 miles away from the house of her parents. According to the medical evidence the dead body bad multiple contusion marks on the cheeks, lips, nose and chin and also had a ligature mark round her neck showing that the death was caused by asphysia due to strangulation. Her two vaginal swabs sent to the Chemical Examiner were found to be stained with semen. The High Court upheld the conviction and sentence of the appellant on all the three counts and confirmed the death sentence awarded to him under section 302, P. P. C. In coming to this conclusion the High Court was satisfied that o "Since the deceased was last seen in his (appellant's) company before they disappeared from the house of Faqir Muhammad, P. W. 8 . it must have been the appellant who subsequently subjected her to sexual intercourse and eventually murdered her". The question, therefore, arises as to whether the convictions of the appellant by the High Court on the three counts could be justified on the basis of the solitary circumstance that the deceased was last seen in the company of the appellant before they disappeared from the house of her father, Faqir Muhammad P. W. In addition to the decided cases noticed by my Lord, the Chief Justice in his judgment, in Alu v. Emperor, Chidda v. Emperor and in Ali Sher v. The Crown it was generally held that in a murder case the solitary evidence of the deceased having been last seen with the accused, by itself, was not sufficient to parse his complicity beyond reasonable doubt. Similarly, in Ahmad Khan v. State a Division Bench of the Lahore High Court has held that the last seen evidence can at best serve as a piece or corroborative evidence but cannot, by itself, form the basis of conviction of the deceased. In Barkati v. Emperor, on a difference of opinion between Agha Hyder and Broadway, J. The case was referred to Fforde, J. for his opinion. In that case Barkati, appellant, was convicted by the trial Judge for the murder of one Narain Singh and sentenced to death. In the absence of any direct evidence as to the actual murder, the prosecution relied on the evidence of the approver in the case and the question arose as to whether it was materially corroborated by other independent and reliable evidence on the record. Narain Singh deceased was last scan in the company of the approver and Barkati accused later in the evening of the 22nd of February 1926 and on the next morning his dead body was found lying on railway line. Agba Harder J, relying on Chhidda v. Emperor held that the evidence of the accused having been last seen with the deceased was not sufficient to lend the requisite support to the evidence of the approver. He observed that after all the case for the prosecution was perhaps on the border line and he would better leave it there without taking the risk of a leap in the dark. At best, it was a doubtful case and therefore, he allowed benefit of doubt to Barkati. But Broadway, J. disagreed with the finding. In his opinion the prosecution evidence clearly connected Barkati with the murder of Narain Singh. On this difference of opinion, Fforde, J. observed:-- "In the present case, also, the independent evidence standing by itself is obviously quite insufficient to support a conviction. The mere fact that an accused was last seen in the company of a man shortly prior to his murder, even coupled with a strong motive for that murder, is obviously not sufficient proof of guilt. In Chhidda v. Emperor cited by Agha Hyder, J. all that was decided was that evidence of the general unpopularity of an accused, coupled with the fact that he was seen in the company of a person on the evening before the latter's death, added to the fact that no explanation is given by the accused regarding the death, was not enough to justify a conviction. There was no approver in that case." Nonetheless in his opinion all that was required under the law was that only some relevant and material part of the approver's story incriminating the accused should have support from an independent source and in the circumstances of that case the approver's narrative of the crime was corroborated in particulars "tending to connect" the appellant with the crime. On this ground, therefore, he agreed with Broadway, J. in maintaining the conviction.7 8 9 10 11
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In Hayat v. Emperor, Muhammad Khan deceased was seen alive for the last time in the company of Hayat Appellant and in the opinion of the Sessions Judge some sort of onus rested upon him to give an explanation of the disappearance of the accused. He, therefore, convicted the accused under section 302, P. P. C. and sentenced him to death. On appeal Agha Haider, 3, in his leading judgment did not subscribe to this view. In his opinion the onus all along rested on the prosecution to prove the guilt of the accused. In this connection he observed :-- "Furthermore, I cannot subscribe to the view expressed by the Sessions Judge, that when two persons are seen together and shortly afterwards one of them is found to have been murdered, then the survivor has to give an explanation as to how the deceased met his death. And the fact that the accused denies all knowledge of the crime or of the circumstances connected therewith cannot be treated as any evidence whatsoever of his guilt. The burden of establishing the guilt of the accused is throughout on the prosecution and they must prove every link in the chain of evidence against him, from the beginning to the end. These are elementary matters which need not be discussed at any length." A somewhat similar view was taken by a Division Bench of the Sind & Baluchistan High Court in Gulab Khan and another v. The State. In that connection the Court remarked :-- "The conviction of appellant Ali Akbar rests on the circumstantial evidence of Mst. Namoi and her husband Gulab alias Motan, the judicial confession and his pointation of the place from where the dead body was dug up. The testimony of Mst. Namoi and Gulab alias Motan is to the effect that at *hart' time the deceased had accompanied All Akber from their house of village Kchri. This is an incriminating circumstance, upon which the prosecution relies to establish that the deceased was last seen alive in the company of appellant All Akbar. Village Kohri is about 3 miles away from Ratodero. The presecution has not collected any evidence to show that the deceased after leaving the house was seen alongwith the appellant Ali Akbar either in Ratodero town or on the way leading to that village. The possibility of Ali Akbar having separated from the deceased soon after leaving the house has not been altogether excluded. Even though this appellant has denied having visited Ratodero and has accordingly not explained this piece of circumstantial evidence against him yet the onus is still on the prosecution to exclude all doubts. On an examination of this piece of circumstantial evidence we are inclined to feel that the plausibility of an innocent possibility such as the one pointed out above has not been excluded. For this reason not much weight can be attached to this piece of evidence." On the other hand, in Fazal Wahl alias Sojawal v. The Crown the Federal Court observed :-- "For, while the fact of an accused person being the only person in the company of the deceased within a very short time of his death may be almost conclusive, in the absence of explanation from the accused, for holding him to be responsible for the death, should it have been the result of violence, prolongation of the interval generally tends to weaken the inference very greatly. In certain circumstances, as much as an hour's extention may suffice to avoid even the duty of furnishing an explanation. This is the more so if there be no reason shown…
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