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Petitioner: NAIB ALI VS Respondent: THE STATEHonorable Justice SALAHLJDDIN AHMED,A. T. M. Masud
1969 P Cr
1969 P Cr. L J 207
[Dacca]
Before Salahuddin Ahmed and A. Hye Choudhury, JJ
NAIB ALI AND ANOTHER‑Accused‑Appellants
Versus
THE STATE‑Respondent
Appeal No. 383 and Death Reference No. 10 of 1968, decided on 26th November 1968.
(a) Criminal Procedure Code (V of 1898)-----S. 164‑Confession Voiuntariness of‑Confessing accused never making any complaint to Magistrate about use of force or inducement by Police in obtaining confession‑Mere fact that accused gave halting story about occurrence‑Held, not enough to rob confession of voluntary character‑Confession, in circumstances of case, cannot be held to the involuntary.
(b) Penal Code (XLV of 1860)-----S. 302‑Murder‑Accused in confession fully implicating himself in murder of deceased Confession supported by unimpeachable evidence and recovery of alamats and (lead body from place of occurrence at instance of accused‑Prosecution, held, has fully succeeded in proving case against accused.
(c) Penal Cods (XLV of 1860), S. 302‑Murder‑‑Sentence Accused a young man of sixteen years keeping bad company, lured into crime and appearing to have been a tool in hands of desperate and more mature associates ‑Sentence of death commuted to trans portation for life.
Nurul Hoque Bhuiya for the Condemned‑prisoner No. 1.
Abdul Wadud Mia for the Condemned‑prisoner No. 2.
A. T. M. Masud, Deputy Legal Remembrancer and Sultan Ahmed for the State.
JUDGMENT
SALAHLJDDIN AHMED, J.‑---In this Reference under section 374 of the Code of Criminal Procedure Mr. M. N. I. Khan, Sessions Judge of Comilla has recommended confirmation of the sentences of death passed upon two prisoners, namely, Naib Ali and Habibullah both of whom have been convicted and sentenced under section 302/34 of the Pakistan Penal Code to death. They have also been convicted and sentenced under section 394 of the Penal Code to suffer rigorous imprisonment for seven years each. The two contemned‑prisoners have preferred an appeal and the Reference and the appeal have been heard together and they are now being disposed of by one judgment.
Prosecution case may briefly be stated as follows: P. W. 1 Abdul Kader, addressed as Huzur of the `tablig jama'at' had a rice dealing business at Daudkandi in partnership with one Lal Mea a brother of co‑accused Khorshed (discharged at the preliminary stage). Abdur Rahman (deceased) was a `Bhagina' (son of a sister) of P. W. Abdul Kader and he used to look after the rice business of P. W. Abdur Kader along with the said Lai Mea, and for this purpose they used to purchase rice from local markets and sell it to retailers at Daudkandi. The entire capital of the business was furnished by P. W. Abdul Kader. Khorshed, Manju Abdur Rashid, Kalai Bepari and some others were the retail dealers who purchased rice from P. W. Abdul Kader. Over such transaction with the said Khorshed there was some money due from him to Abdul Kader and the latter at the intervention of P. W. 8 Abdul Latif Chowdhury, Secretary of Daudkandi Bazar Committee received a sum of Rs. 300, out of the dues of Rs. 600. This annoyed Khorsh:d. On the 4th Kartick, 1374 B. S. corresponding to the 22nd October 1967 at about Maghrab prayer time Abdur Rahman as previously arranged was to proceed to Bayek Bazar for purchasing rice. P. W. Abdul Kader handed over to Abdur Rahman a sum Rs. 1,373.90 for buying rice. According to the arrangement Abdur Rahman was required to proceed to Pennai Ghat via Gouripur situated to the east of Daudkandi Bazar and there to join the said Lal Mea who would be waiting for the former and then both of them were to proceed to purchase rice. The route lay through the Dacca‑Comilla 7 runk Road. As, however, Abdur Rahman did not reach Pennai Ghat until `Esha' prayer time, the said Lal Mea and P. W. 9 Anwar Ali Majhee of the boat which was to take Abdur Rahman and Lal Mea to Bayek Bazar, went to P. W. 1 Abdul Kader and reported to him that Abdur Rahman did not join them at Pennai Ghat as had been arranged. Remembering that 10/15 days before this, the said Khorshed had warned P. W. Abdul Kader that some people had planned to commit robbery on the said Abdur Rahman and the said Lal Mea Abdul Kader became panicky and restless, and along with the said Lal Mea and P. W. Anwar Ali went to Pennai Ghat on a rickshaw but did not find Abdur Rahman there. They also went Gouripur which is one mile to the north of Pennai in the interior of the said Trunk Road and searched for Abdur Rahman in many places but in vain. At about 10‑30 p.m. P. W. Abdul Kader returned to Daudkandi by the last bus having given instructions to Lal Mea and P. W. Anwar Majhce to search for Abdur Rahman in his native villa‑ e Darikandi. 'Towards the last part of the night Lal Mea and P. W. Anwar returned to P. W. Abdul Kader and told him that they had got the `gamcha' (napkin) of Abdur Rahman from the Dacca‑Comilla Trunk Road near village Baraikari. P. W. Abdul Kader recognised the `gamcha' to be that of Abdur Rahman. P. W. Abdul Kader received another information at about `Fajar' prayer time about some clothes, a `khata' and some other articles belonging to Abdur Rahnaan having been lying on the foot path of the said Trunk Road near Baraikari. P. W. Abdul Kader then went to Daudkandi Police Station and lodged a missing information which was received by P. W. 10 Sub‑Inspector Muzaffar Ahmed on 23‑10‑67 at 9‑30 a.m. Both Abdul Kader and P. W. 10 Sub‑Inspector went to the place where it had been reported that clothes, `khata' etc. belonging to Abdur Rahman had been found lying. There they found an account book Exh. 2, two `Lungis' Exhs. It and IV, ganjee Exh. V, Panjabi Exh. III and a torn cap Exh. VI on the foot path of C and B Road in Baraikari village. These articles were duly seized. The police apprehending that Abdur Rahman had been murdered, searched for the dead body but failed to find it. In the after‑noon of 23‑10‑67 P. W. 10 Muzaffar Ahmed having received some information that P. W. 4 Hazrat Ali who was a resident of West Hugulia situated on the Dacca Comilla Trunk Road might be able to give some information about the said Abdur Rahman went to the house of P. W. Hazrat Ali and examined him. It transpired that on the 4th Kartick, 1374 B. S. corresponding to the 22nd October 1967 at about Maghrab time condemned‑prisoner Habibullah had got on the rickshaw of P. W. 4 for proceeding to Shahidnager a place about three miles to the east of Daudkandi to witness a television show. As they had waited for another passenger, Abdur Rahman deceased came and got on the rickshaw saying that he would go to Gouripur. The rickshaw along with the passengers then proceeded to a place near `Edgah' in village Baraikari. There P. W. 4 saw condemned‑prisoner Naib Ali walking on a foot path of the Trunk Road, prisoner Habibullah addressed prisoner Naib Ali as maternal‑uncle and invited the latter to witness the television show. Prisoner Naib Ali agreed to go and as the rickshaw was proceeding onward, prisoner, Habibullah, asked P. W. 4 to stop the rickshaw. Prisoner Naib Ali then ran towards the rickshaw and having come near it said that he had stumbled and as a result thereof his toe was injured. Prisoner Habibullah then got down to see his toe and on examining it said that the toe had been injured. Prisoner Naib Ali then asked P. W. 4 for a piece of rag to tie up his injury but the latter said that he had no rag with him. Abdur Rahman who seemed to be in a hurry to go asked prisoner Naib Ali to come quickly and the latter then approached the right side of the rickshaw from the rear and demanded from Abdur Rahman all the valuables that he had. As Abdur Rahman expressed his surprise prisoner Naib Ali caught the former by the throat and brought him down on the road. Thereupon both the prisoners fell upon Abdur Rahman. P. W. 4 became panicky and he fled away with his rickshaw and went straight to his house in Hugulia. He had become very perturbed and restless and so his wife poured water on his head and subsequently when he became calm, he narrated the occurrence to his maternal cousin P. W. 5 Ayub Ali the same night P. W. 10 after taking down the statement of P. W. 4 took him to the policy station and en route inspected the place of occurrence as shown by P. W. 4. On the basis of the statement made by P. W. 4, both the prisoners Habibullah and Naib Ali were arrested in the evening of 23‑10‑67 prisoner Naib Ali made a statement after his arrest to P. W. 10 in presence of P. W. 2 ,Abdul Halim, Circle Officer (Revenue), Daudkandi, P. W. 8. Abdul Latif Choudhury, Secretary of the Merchant Association, Daudkandi, Abed Hussain, Member of the Union Council and some others. Prisoner Naib Ali then took P. W. 10 to the place in Baraikari village where the clothes and some other articles belonging to Abdur Rahman had been found earlier in the morning. Here prisoner Naib Ali went straight to the road‑side canal in chest‑deep water and brought out the dead body of deceased Abdur Rahman froze under the moss. The dead body was identified by P. W. Abdul Kader and an inquest was held by P. W. 10 over the dead body. There were other witnesses besides P. W. 11 Hasan Ali the then Officer‑in‑charge of Daudkandi Police Station, who witnessed the recovery of the body. The deal body was then sent for post‑mortem examination which was held on 24‑10‑67 at 5 p.m. by P. W. 6 Dr. Choudhury abdul Majid Medical Officer, Sadar Hospital, Comilla P. W. 6 found one punctured wound on the right side of the neck 1" above the sternal notch measuring 1" x " x 1 " in depth and another punctured wound on the left side of the abdomen Measuring " x " x 2" in depth. On dissection he found profuse haemorrhage of blood in the pleural cavity of the right‑side and the right lung punctured. On abdominal dissection he found profuse clotted blood on the left side of the abdomen and the large intestine punctured. Peritonium was also punctured. In the opinion of the doctor death was due to shock and haemorrhage caused by the above injuries which were ante‑mortem and homicidal in nature. Earlier on 24‑10‑67 prisoner Habibullah too made a statement to P. W. 11 Has an Ali and thereafter took the Police officer along with some other witnesses to the house of prisoners Habibullah and there Habibullah brought oat two fifty‑rupee notes from inside a book kept in a gunk. A seizure list was duly mad‑ of these two fifty‑rupee notes. Later the house of co‑accused Khorshed was also searched and a sure of Rs. 108.64 paisa was recovered. The two condemned‑prisoners along with two other accused and P. W. 4. Hazrat Ali were; subsequenty taken to Comilla and produced before Magistrate P. W. 7 before whom both the condemned‑prisoners made judicial confession, and P. W. 4 made a statement which was recorded under section 154, Criminal Procedure Code. This was followed by the usual police‑ investigations which resulted in a charge‑sheet having been submitted against the two condemned‑prisoners and five other co‑accused namely, Rashid, Khorshed, Manju, Makbul and Siddique under section 392/302/34/120‑B/201 of the Pakistan Penal Code.
A preliminary enquiry having been held by a First Class Magistrate, only two persons, namely, the two condemned prisoners before us were committed to the Court of Sessions to stand trial on charges under sections 302/34 and 394 of the Pakistan Penal Code. The other five co‑accused were discharged by the learned Magistrate.
The trial was held by the learned Sessions Judge of Comilla himself with the aid of four assessors all of whom were of opinion that the two condemned‑prisoners were guilty of both the charges framed against them.
The learned Sessions Judge having accepted the unanimous Opinion of the Assessors convicted both the prisoners under section 304/34 of the Penal Code and sentenced each of them death. The learned Sessions Judge also convicted both the prisoners under section 394 of the Pakistan Penal Code and sentenced each of them to suffer rigorous imprisonment for seven scars.
Both the prisoners subsequently retracted their confessions. The defence of prisoner Habibullah was that he was a student of Class X of Daudkandi High School. His father Karam Ali was an employee of launch owner Sultan Ahmed Chow dhury. The launch owner had a rivalry with the said Abed Hossain, Member of the Union Council and P. W.8 Abdul Latif Choudhury. Karam Ali father of the prisoner Habibullah having been an employee of the said launch owner also incurred the displeasure of the said Abed Hossain and P. W. Abdul Latif Choudhury and for this reason they prevailed upon the police to falsely implicate Habidullah by forcing prisoner Naib Ali to insert in his statement the name of prisoner Habibullah. It is further stated that the statements of prisoner Habibullah were extracted from him by assault and threat and that the two fifty‑rupee notes were not recovered from the prisoner but they were given by the mother of the prisoner to satisfy the police. It is stated that Habibullah's judicial confession was also obtained by assault and coercion by the police. So far as prisoner Naib Ali is concerned, his defence is that he was a that coolie at Daudkandi Bazar. On hearing that Abdur Rahman was missing and some of his person belongings were found in Baraikari village, like other curious people he went to the place in the morning of 23‑10‑67. Later in the evening while he was inking his meal in his house the police came and took him to the thana where he was beaten by P. W. 10 at the instance of P. W. 8 and the said Abed Hossain the prisoner made a statement implicating some others. It is further stated that the prisoner re did not bring out the dead body of Abdur Rahman. In fact he fused to get down in the water and it was P. W. 4. and some others who brought out the dead body which was discovered by P. W. 10 focussing his torch light. The prisoner was forced to carry the dead body along with others from Baraikari to Daudkandi Police station and there the police assaulted him and then took him to Comilla along with other accused. At Comilia before the Prisoner had made the alleged confession, the Police Officer P. Ws. 10 and 11 again threatened him. It is, therefore, said that the prisoner's judicial confession was obtained by assault, threat and inducements.
The prosecution case against the two condemned‑prisoners mainly rests upon the evidence of P. W. 4. Hazrat Ali and the two judicial confessions made by the two prisoners. In support of these evidence prosecution have proved the seizure of certain alamats from the place of occurrence, the recovery of dead body of deceased Abdur Rahman at the instance of prisoners Naib Ali and the recovery of two fifty‑rupee notes from the possession of prisoner Habibullah.
The learned Advocates appearing on behalf of the condemned‑prisoners have contended that P. W. 4. Hazrat Ali is neither independent nor reliable and therefore his evidence should not be relied on.
They have further contended that, judicial confessions of the two prisoners cannot be relied on firstly because they were not legally recorded, secondly they are not voluntary, and thirdly they are not true. So far as the confession of prisoner Naib Ali is concerned the learned Advocate appearing on his behalf has further contended that the alleged confession contains exculpatory statements and as such it is no confession in the eye of law.
P. W. 4 Hazrat Ali aged about forty‑five years is the rick shaw‑puller who plies on the Daudkandi‑Gouripur‑Eliatganj area mainly on the C and B Road. He knew from before prisoner Naib 'Ali who was a coolie at Daudkandi Launch Ghat. He identified prisoner Habibullah in the dock and seemed to have become familiar with his face on account of the witnesses having seen the prisoner on a number of occasions since the witness took him in his rickshaw along with Abdur Rahman (deceased) on the evening of 22‑10‑67. His identification of the prisoner has not been challenged. The witness has stated that prisoner Habibullah first got into rickshaw at Daudkandi Bazar for going to Shahidnagar. The witness began to call for another passenger intending to go to Gouripur or Shahidnagar and this attracted Abdur Rahman who wanted to go to Gouripur. The witness had not known Abdur Rahman before. When they all came about one mile from Daudkandi Bazar to the east and arrived at a place near a graveyard situated in Baraikari, the witness saw prisoner Naib Ali walking by the said Trunk Road from west to east. Prisoner Naib Ali having been invited by prisoner Habibullah to go to witness the television, the former readily agreed and prisoner Habibullah asked the witness to stop the rickshaw to enable the prisoner Naib Ali to get in to it. Accordingly the rickshaw was stopped, and prisoner Naib Ali came to the side of the rickshaw and said that he had injured his tie due to stumbling and prisoner Habibullah after having looked into it said that the toe had been injured. The witness, however, said that he did not see the injury. On being asked for a piece of rag by prisoner Naib Ali, the witness said that he had no rag. Abdur Rahman who had been sitting on the rickshaw all the time asked prisoner Naib Alt to come quickly for it was urgent for the former to go quickly.
Prisoner Naib Ali replied that he was coming, and then he went by the rear of the rickshaw and came to its right side, and peremptorily asked Abdur Rahman to hand over to the former immediately whatever the latter had with him. Abdur Rahman said "Brother, Naib Ali what are you saying ?" At this utterence prisoner caught hold of Abdur Rahman by the throat and brought him down on the northern side. The prisoner Habibullah also came and caught hold of the fallen man. On having seen this the witness fled away with his rickshaw to his house in village Hugulia. The witness became full of fear and he narrated the occurrence to his cousin P. W. 5 Ayub Ali who lived in the same bari. On the following day at Asar prayer time P. W. 10 came to the house of the witness and he narrated to the police officer about the occurrence. The witness has also stated that he met prisoners Naib Ali and Habibullah among others at the police station and there prisoner Naib Ali made a statement and then took the police to the place of occurrence and brought out the dead body of the deceased Abdur Rahman from inside the road‑side water. The witness saw an injury in the throat and another injury on the abdomen of the dead body. The witness also identified the `Panjabi' shirt Exh. III and his `kisti' cap Exh. VI which were on the person of the deceased. The witness also stated that the deceased had a `lungi' on and had a cloth bundle with him when he got into the rickshaw of the witness. In his cross‑examination no suggestion was given to him to show that he had any reason to bear ill‑will against prisoner Habibullah. It was, however suggested to him that he had once quarrelled with prisoner Naib Ali. No reason for the quarrel, however, was stated to him. This suggestion has been denied and there is no material on record to furnish a reasonable basis for such a suggestion. The witness has stated in cross‑examination that it was not dark when he saw prisoner Naib Ali and that it was just after Maghrab prayer time. The moon did not rise at that time and it rose at the latter part of the night. The witness stated that he did not see the accused giving any knife blow and that Abdur Rahman could not shout and that he did not shout. He has categorically stated that he was net threatened by the Daroga. The witness has also denied that he was never suspected in the case or that it was for that reason he was prevailed upon by the police to depose against the two prisoners. The witness denied that the prisoner Habibullah did not go by the rickshaw of the witness. The witness also denied that he had falsely implicated the prisoner Naib Ali at the instance of the said Abed Hossain and P. W. 8 Abdul Latif Choudhry. The witness denied that he committed the occurrence and had shifted the matter on to prisoner Naib Ali.
P. W. 5 Ayub Ali has fully corroborated P. W. 4 and has stated that P. W. 4 having come back to his house at night reported to P. W. 5 about the occurrence and that the wife of P. W. 4 poured water on his head as he was feeling very uneasy and uncomfortable. This witness admitted that he belonged to `tablig jama'at' and that P. W. Anwar Majhee also belonged to the `tablig jania'at'. The witness has stated that he lived along with P. W. 4 Hazrat Ali in the same house. The witness was examined by the Daroga. The witness denied that P. W. Hazrat Ali was suspected in the case and in order to save him the former falsely deposed at the instance of the latter. The witness has further denied that he deposed falsely as prisoner Naib Ali had quarrelled with P. W. 4.
We have carefully considered the evidence of P. Ws. 4 and 5 and we see no reason to disbelieve their evidence. It is true that P. W. 4 was required to make a statement before the Magistrate which was recorded under section 164 of the Criminal Procedure Code. There is, however, nothing to show that he was ever suspected to have any hand in the crime. The evidence of P. W. 4 has received support from the fact that several articles belonging to deceased Abdur Rahman were recovered from the place where the witness said the rickshaw had been stopped and assaults had been made on Abdur Rahman. It is further supported by the fact that the dead body of Abdur Rahman was recovered from a ditch near the place of occurrence.
Neither the death of Abdur Rahman nor the identity of his body recovered from the ditch has been disputed. Both P. Ws. 4 and 5 had never known deceased Abdur Rahman before and there is nothing to show that any one of them has had any reason to falsely implicate the prisoner. We, therefore, fully accept their evidence as true.
We have carefully examined the confessions of the two prisoners recorded by P. W. 7 Mr. A. K. M. H. Rashid who was then the Sub‑Divisional Officer, Sadar (North), Comilla and we find that the confession have been legally recorded. It has been contended that inasmuch as the confessions were recorded at night and in the Magistrate's Chamber, they were against the rules and. as such illegal. It is true that both these allegations are true. But we find from the evidence of the Magistrate that he was away and that he returned to his chamber on that date after 8 p.m. The evidence of the Magistrate shows that he observed all the formalities of law before he recorded the confession and that none of the two prisoners complained to him of violence by the police. In his cross‑examination by prisoner Naib Ali he categorically denied that the prisoner Naib Ali had made a complaint to the Magistrate about police violence and severe beating. The Magistrate admitted that he did not ask the two prisoners as to why they were making a confession. We do not think that this omission has in any way vitiated the recording of the confessions since the confessions contained the usual questions put to and warnings given to the prisoners proposing to confess.
It has also been contended that the confessions were not voluntary. As is evident from the evidence of the Magistrate P. W. 7 none of the two prisoners ever complained to him about beating or tutoring. On reference to the examination of the two prisoners before the committing Magistrate under section 342 of the Code of Criminal Procedure we do not find that any one of them ever complained there that he had been forced to make a confession by the police or any body. We, therefore, do not find any substance in this contention.
It has next been contended that the confessions are not true. It has been argued that blood‑stained earth was not recovered from the place of' occurrence and the omission to find such alanlats falsifies the prosecution case. It is true that there is no evidence o' the recovery of blood‑stained earth from the place of occurrence. On reference to the medical evidence (vide P. W. 6) however, we find that there was more internal haemorrhage than external bleeding although the possibility of some blood having fallen somewhere near the place of occurrence cannot be excluded. The evidence, however is that a large number of people had traversed the place and it is not unlikely that by that process some marks of blood if any got obliterated. Nevertheless the seizure of a number of articles from the place of occurrence, the ownership of which has not been disputed fully corroborates the confessions in material particulars. There are yet other corroboration which we shall deal with when discussing the individual confession of the two prisoners.
The relevant confession of prisoner Habibullah appears at pages 78 and 79 of the paper book. The sum and substance of his confession is that he had known his co‑accused including prisoner Naib Ali from…
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