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Petitioner: SACHAL VS Respondent: THE STATEHonorable Justice Abdul HamidM. H. Junejo,Manzoor Hussain
1969 P Cr
1969 P Cr. L J 1447
[Karachi]
Before Abdul Hamid, J
SACHAL AND ANOTHER‑‑Appellants
Versus
THE STATE‑Respondent
Criminal Appeal No. 72 of 1966, decided on 2nd August 1967.
Penal Code (XLV of 1850), S. 302‑‑Murder‑‑No direct evidence forthcoming‑Retracted confession contradicted by state ments of prosecution witnesses and medical evidence‑‑Conviction tinder circumstances, held, cannot be safely up‑held‑Accused given benefit of doubt and acquitted.
M. H. Junejo for Appellant.
Manzoor Hussain for A.‑G. for the State.
Date of hearing : 2nd August 1957.
JUDGMENT
Sachal, aged 17 years, Ghulam Qadir, aged 24 years, Shafi Muhammad, aged 23 years, and Nawab aged 18 years, were tried under section 302, P. P. C., for having committed the murder of Ali Gohar, aged 16 years, by administering dhatura to him on the 3rd of June 1965, in the area of village Baiji, situate at a distance of one and a half miles from Police Station Pano Akil, District Sukkur. By his order, dated the 13th of January 1966, the learned Sessions Judge, Sukkur, found Sachal and Ghulam Qadir guilty of the offence of murder and as such sentenced each to transportation for life. He, however, acquitted the other two of the charge. The convicts have preferred appeal against their convictions and sentences.
2. The facts of the prosecution case are short and may be stated as follows :‑
The deceased, Ali Gohar, aged 16 years, was a student of 4th Class in Pano Akil High School. Can the fateful day i.e. 3rd of June 1965, at about 8 a. m. he along with other students namely Muhammad Panjal and Muhammad Ismail P. Ws. etc. was on his way to the School. When the boy reached Baiji Bridge, Shafi Muhammad (acquitted accused) called Ali Gohar. At that time, Ghulam Qadir appellant was sitting by his side. Accordingly, the boy went towards Shafi Muhammad. It may be stated that Shafi Muhammad was a Telephone Clerk while Ghulam Qadir was employed as a sub‑Darogha in the Public Works Department. When they called the boy they were sitting outside the P. W. D. Bungalow. Muhammad Panjal and Muhammad Ismail P. Ws. waited for Ali Gohar for some time but as he did not come out from the bungalow they went onward towards the school. Ali Gohar, however, neither attended the school on that day nor he returned to his house.
3. Later Shafi Muhammad (acquitted accused) and Ghulam Qadir appellant were joined by the other two, namely Sachal appellant and Nawab (acquitted accused). Two hours later, the boy, along with Shafi Muhammad and his three companions, started bathing in a canal. It took them two hours. There after, when they came out of the canal, Sachal appellant suggested to Ghulam Qadir to commit sodomy on the body. Accordingly, Sachal appellant devised a plan of mixing dhatura in the mash (pounded gur), Sachal appellant then went and fetched masti from the shop of Majjan P. W. 9 and after mixing dhutura brought it to the bungalow where the other three, along with the deceased, were sitting. All of them then took meals and thereafter masti (powdered gur) was distributed. As it was mired with dhatura, the other two beldars namely Dil Murad P. W. 7 and Murad P. W. 8, who participated in taking masti, felt giddiness and started vomiting. A short while after, the boy was taken towards a garden at a distance of one mile from the bungalow where he became unconscious. Finding the boy in a helpless condition, Nawab (acquitted accused) committed sodomy on him followed by Sachal and Ghulam Qadir appellants. The boy, however, showed no resistance. The three persons referred to above became nervous on finding that the boy had not regained consciousness. They accordingly left him there and decamped.
In the afternoon, the same day, Jiand and Shafqat P. Ws. reached there and saw the boy lying unconscious. They then asked the two boys, who ware proceeding on a mare towards the village, to inform the relations of Ali Gohar about his condition. Gul Muhammad, the grandfather of the deceased, on being apprised of the incident, reached the scene of the crime and found his grandson lying there. He accordingly took the boy on a cot to Police Station Pano Akil where he was directed to take him to the local dispanary for treatment. The boy however breathed his last before he could be medically treated. Thereafter, his dead body was brought back to the Police Station where Gul Muhammad lodged the report at about midnight.
As the cause of death of the boy had not been ascertained, the police entered the report in the Daily Diary and despatched the dead body to the mortuary for post‑mortem examination after preparing the requisite injury statement and the inquest report of the deceased.
4. On the following day, i.e., 4th June 1965, at 11 a.m. Dr. Abdul Jabbar Qazi conducted the autopsy on the dead body of Ali Gohar and found the following injuries thereon :‑‑
(1) A longitudinal abrasion, 2" x 1/8 on outer side of right upper arm over deltoid region ;
(2) A transverse abrasion, 1 ' x 1/8" on the front of right shoulder.
According to the doctor, the injuries appeared to have been caused by rubbing against a hard object like ground. The doctor eventually reported that the death of the boy was due to asphyxia, i.e. paralysis of respiration. He was further of the opinion that asphyxia was probably due to poisoning. The viscera of the deceased was preserved and sent to the Chemical Examiner for ascertaining the nature of poison. Later, the Chemical Examiner reported that dhatura had been detected in the viscera.
On receipt of the report from the doctor, who conducted the post‑mortem examination, that the death of the deceased was due to asphyxia, the police registered a case under section 302, P. P. C. on the 7th of June 1965, at 11‑30 a. m.
5. On the 9th of June 1965, the appellants were arrested, Sachal appellant, on interrogation, pointed out to a dhatura plant adjoining the bungalow of the P. W. D. He also led the police to the shop of Majjan wherefrom he had purchased the masti. He also produced the pestle and kunda (earthen bowl) from his house. Later, the Chemical Examiner detected dhatura in the Kunda.
On the 10th of June 1965, Ghulam Qadir appellant expressed his desire to make a clean breast of his guilt. He was accor dingly produced before Mr. Allah Wasayo, Mukhtarkar and Magistrate 1st Class, Pano Akil, who recorded his confession after taking usual precautions. Ghulam Qadir appellant deposed before him that Sachal appellant had brought the masti which was taken in solid form by Shafi Muhammad (acquitted accused), Dil Murad Beldar, Murad Beldar and Ali Gohar deceased. He further stated that latter sodomy was committed on the boy by Nawab (acquitted accused) and the two appellants. Briefly stated, he added that the boy had become unconscious and as such they left him in the garden after committing sodomy on him.
7. On the 11th of June 1965, the Police, after Ghulam Qadir appellant had deposed in his confessional statement that sodomy had been committed on the boy, sent a letter to the doctor, who had performed the post‑mortem examination, inquiring from him as to whether any trace of injury in the rectum of the deceased or any other symptoms regarding sodomy had been found. Thereupon, the doctor reported that he did not find any injury on the anal canal or rectum of the deceased.
8. The appellants pleaded not guilty to the charge. Ghulam Qadir appellant further stated that the confession was made by him because he was continuously tortured by the police for threw consecutive days. None of them, however, produced defence.
9. As noted above, there is no direct evidence in the case. The learned Sessions Judge mainly based the conviction of the appellants on the confession said to have been made by Ghulam Qadir appellant which he retracted at the trial.
10. The point for determination in this case is whether tire confession has been corroborated in material aspects. In the first place, Ghulam Qadir appellant stated in the confession that sodomy had been committed on the deceased prior to his death. The doctor, however, did not find any marks of violence on tile rectum of the boy indicating tile commission of unnatural offence. Apart from this, the two Beldars Dil Marad and Murad P. Ws. deposed at the trial that masti (powdered gar) had been administered in the form of a sharbat and not in solid form, as alleged by Ghulam Qadir appellant in his confessional statement. Further, they deposed that the sharbat was served by Shafi Muhammad (acquitted accused) and not by Sachal appellant who, after delivering meals to his brother Qadir Bakhsh, went away before the sharbat containing masti was served. In short, there is no evidence to corroborate the confession said to have been made by Ghulam Qadir appellant, before a Magistrate. The learned Sessions Judge, has also taken into consideration the production of kunda (earthen bowl) by Sachal appellant on the 9th of June 1965, wherein dhatura was detected by the Chemical Examiner. There being no evidence to show that Sachal appellant had mixed mash with dhatura and had administered it to the deceased and others, the mere fact that one kunda was recovered six days after the incident, containing traces of dhatura, does not lead to the inference that he had committed the offence. Similarly, the evidence of Majjan P. W. 9 that Sachal appellant had purchased the masti from him does not connect him with the murder. Needless to recapitulate that both the beldars, namely, Dil Murad and Murad P. Ws. have categorically stated that Sachal appellant, after delivering meals to his brother Qadir Bakhsh, went away. They have also unequivocally stated that sharbat, which probably contained some intoxicant, was served by Shafi Muhammad who has been acquitted.
11. Since there is no corroboration of the confessional statement made by Ghulam Qadir appellant. I do not consider it safe to uphold the conviction of the appellants under section 302, P. P. C. I accordingly accept the appeal and giving the appellants benefit of doubt acquit them of the charge. They shall be forthwith set at liberty provided always that they are not required to be detained in connection with any other case.
Appeal accepted.