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Petitioner: DOST MUHAMMAD VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Ghulam Muhammad Kourejo, B. G. N. Kazi Title: DOST MUHAMMAD vs THE STATE Case No.: Criminal Appeal No. 162 of 1978 Date of Judgment:1980-08-29 Reported As: PLD 1982 Karachi 1000 Result: Appeal allowed
JUDGMENT
JUDGMENT G. M. KOUREJO, J.-Dost Muhammad, son of Muhammad Essa Khan, aged about 35 years, by caste Kaka and resident of Village Bhalledino Kaka, Taluka Hala, stood his trial in the Court of Sessions Judge, Sanghar, under section 302, Pakistan Penal Code, for having committed murder of one Vali Muhammad son of Fateh Muhammad Chandio, by intentionally causing his death by inflicting knife injuries on him, on the night falling between 22nd and 23rd June, 1972, near Government High School, Sanghar, in Sanghar Town. At the conclusion of the trial the accused appellant was found guilty of the offence of murder and was convicted under section 302, Pakistan Penal Code and sentenced to imprisonment for life. 2. The facts of the prosecution case are, that deceased Vali Muhammad was Head Muallim of Madrasah Jamia Ulum. He was administrative head of that Madrasah. The complainant Moulvi Sher Muhammad was one of the Muallims of the Madrasah and the accused appellant Dost Muhammad and P. W. Usman were studying in that Madrasah. 3. Mst. Ikram Khatoon was wife of deceased Vali Muhammad. She resided with him in a house close to the Madrasah. P. W. Suleman was brother of the deceased, whereas P. W. Achar was son of the sister of the deceased. P. W. Suleman and Achar resided in village Nawab Chandio in Taluka Sakrand, District Nawabshah. 4. The accused appellant used to visit the house of deceased Moulvi Vali Muhammad with the result that he developed illicit connections with Mst. Ikram Khatoon wife of deceased Vali Muhammad. He expressed to Mst. Ikram Khatoon that she should marry him. She told him that since she was already a wile of some body else, it was not possible to marry him but he should carry on illicit connections with her.
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5. On the night falling between 22nd and 23rd June, 1972, after sunset time deceased Vali Muhammad and the accused appellant Dost Muhammad left together. At about 11 p.m. The accused appellant returned alone to the house of deceased Moulvi Vali Muhammad with a knife in his band stained with blood. His hands and clothes were smeared with blood. He told Mst. Ikram Khatoon that he had killed Vali Muhammad and she was at liberty to marry him. He then washed his hands and blood--stained knife in the house of deceased Vali Muhammad. On the following day, the 23rd of June, 1972, which was Friday, complainant Moulvi Sher Muhammad came to the Madrasah at Friday prayers time having returned from leave. On having made enquiries about the deceased Vali Muhammad he came to know from the accused appellant that on the preceding night the deceased had gone to the town for collecting donation. On his return, there were some persons in his company. He made them stand outside the door of his house and he went inside and told his wife that there were some persons with him and he was going with them. He further told her that if he does not return within half an hour, he should be presumed to have been killed by his enemies. The complainant Moulvi Sher Muhammad was called by Mst. 1kram Khatoon, who told him that he should search for her husband. Moulvi Sher Muhammad and the accused appellant then went out in search of the deceased Vali Muhammad. Sher Muhammad first contacted Moulvi Abdul Kadir and then Mr. Abdul Majeed, advocate, and on enquiries from them they expressed their ignorance. On their return the accused appellant told the complainant Sher Muhammad to go ahead a little with him towards Nawabshah Road and on coming to the road the accused appellant told him that he was sme lling blood and then be took him towards a pit where there were Kirir bushes, where they found rosary lying in a pool of blood. In side the pit they found dead body of deceased Vali Muhammad. Complainant Sher Muhammad then left the accused appellant at the spot and went and lodged First Information Report at Police Station Sanghar. 6. The first information report reads as under :- "It is complained that I am Muallim in Madrasa Jamia Ulum. Moulvi Vali Muhammad Chandio was Administrator of our Madrasah. Today at 3 p.m. Mst. Ikram Khatoon wife of Moulvi Vali Muhammad told me that her husband had gone out at 10.30 p.m. Having been called by some body. He then returned and told her that some persons were calling him and were not leaving him. He was going with them and if he did not return after half an hour, she should think that he has been finished Before that too her husband had told her that there were people after him and they wanted to kill him and used to say that they will kill him. Her husband had not returned since then. On such information from Mst. Ikram Kbatoon, I and Dost Muhammad Kaka both made enquiries about Vali Muhammad and keeping in view the fact that some one may have killed him searched the surroundings and at about 6 p.m. By the side of metalled road leading to Nawabshah near Government High School, Sanghar, we saw the dead body of Moulvi Vali Muhammad lying in a pit. There was bad smell of blood. He saw that his neck bad been cut with some sharp-cutting weapon. I left Dost Muhammad Kaka at the dead body to guard it and came to Mst. Ikram Khatoon and enquired from her as to who had taken away Moulvi Vali Muhammad last night when she replied that her husband had enmity with her relatives and cast-fellows and they were known to his . Brother Haji Suleman. I have come to lodge report that some cast-fellows of Moulvi Vali Muhammad had killed him and investigation may be made.". 7. S. I. P. Abdur Razzak recorded the first information report on 23-6-1972 at 7 p.m. vide Exh. No. 126. He accompanied the complainant Moulvi Sher Muhammad to the scene of offence and inspected the same in presence of Mashirs Nazeer Hussain and Noor Muhammad. He found the dead body lying in a pit upside down with "shalwar" up to knees. There was blood and wet spot indicating urine passed there by some body. Turban, pair of slippers, rosary stained with blood were also lying there. He secured the articles and prepared them into a sealed parcel vide Mashirnama Exh. 40.
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The dead body had knife injury on neck. He prepared inquest report vide Exh. 41 and sent the dead body through Police Constable Lal Khan to Civil Hispital, Sanghar, for post-mortem examination. 8. On 24-6-1972, the complainant Moulvi Sher Muhammad went and informed the deceased's brother Suleman and his nephew Achar of the incident and brought them to Sanghar. The accused appellant made extra---judicial confession to both of them, fist to Achar and then to Suleman, telling them, that he had committed murder of Moulvi Vali Muhammad on account of his illicit connection with Mst. lkram Khatoon. He further stated to them that he should be pardoned and be was prepared to compensate them. Muhammad Suleman went and informed the police about it. The Investigating Officer, S. I. P. Abdul Razzak recorded statements of Muhammad Suleman and Achar and arrested the accused appellant on 25-6-1972. The accused appellant handed over two chits to P. W. Achar which are on the record as Exhs. 33 and 34. P. W. Achar produced the. Same before S. 1. P. Abdul Razzak .Who secured the same under a Mashirnama Exh. 42. The accused appellant had stains of blood on his "sbalwar". The S. I. P. Secured it and prepared it into a sealed parcel, vide Exh. 43. The accused appellant volunteered to produce knife, the weapon of offence and led the S. I. P. And the Mashirs to the water--course and - picked out the knife from it. On opening it the investi--gating officer found a stain of blood on its handle, while the blade of knife had a mud on it. He secured the knife and prepared it into a sealed parcel vide Mashirnama Exh. 44. The accused appellant then led the Investigating Officer S. I. P. Abdul .Razzak and Masbirs inside the house of deceased Vali Muhammad and showed them the place where he washed his blood- stained hands. He secured the earth from there and prepared it into a sealed parcel vide Mashirnama Exh. 46. He recorded statements of Mst. Ikram Khatoon, Usman, Nazeer Ahmad, Abdullah and brought the accused appellant and the case property at the police station. On 26-6- 1972, the accused appellant was produced before A. D. 'M.,. Sanghar for recording his Judicial confession. The A. D. M., Sangbar Mr. Makh--doom Ali recorded the confession of the accused ? Appellant. On 27-6-1972, statements under section 164, Cr. P. C. Mst, Ikram Khatoon, Usman and Nazeer Ahmed were recorded. On 1-7-1972, post-mortem examination report was received vide Exh. 52. The accused appellant was then challaned under a charge-sheet. 9. As indicated 'above, the dead body of deceased Vali Muhammad was despatched for post- mortem examination under escort of Police Cons--table Lal Khan. The autopsy was conducted by Dr. Faiz Muhammad of Civil Hospital, Sanghar, who found on external examination the following injury on the dead body:- Incised wound 8/1' x 2' X --into vertebrae deep on the front of the neck above thyroid region. Fourth survical disc cut, spinal card cut, and large vessels of the neck on either side were cut. On internal examination trachea was cut. Right chamber of heart was full while the left was empty. Oesophagus was cut through and through. Death in the opinion of the doctor was due to shock and haemorrhage on account of the abovesaid injury which was anti-mortem in nature and appeared to have been caused by a sharp-cutting weapon such as a knife or a dagger. It was sufficient to cause death in the ordinary course of nature. The death was instantaneous. The time between the death and the post-mortem was 24 to 36 hours. According to the opinion of the doctor, the knife was pulled in such a way that it caused further harm in a circular way. According to the opinion of the doctor further, it can be said that the assailant and the deceased might be face to face at the time when the injury was caused.. 10. In all nine witnesses have been examined by the prosecution at the trial. The accused appellant denies all allegations against him and hag claimed to have been falsely implicated. He further denies to have made an extra-judicial confession to Mst. IkAm Khatoon. Achar and Suleman. He- claims that neither the blood-stained shalwar was recovered from his person nor he had produced blood-stained knife from a watercourse. He further claims not to have pointed out the place, in the house of deceased Vali Muhammad where he is alleged to have washed his hands and the knife.
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According to him his confession recorded by A. D. M., vide Exh. 59 was neither true nor voluntary. He has further alleged that that relations of deceased Vali Muhammad were not cordial with his brothers. He always apprehended danger at the hands of his brother Suleman and his other relatives. According to him, police had arrested him on 23-6-1972. He was detained at the police station for three days and so also Mst. Lkram Khatoon and P. W. Usman. About three days prior to the incident he had given a beating to P. W. Usman with the result that he was annoyed with him. The police released P. W. Usman on accepting bribe from him on the promise that he shall be a witness against the appellant. Mst. Ikram Khatoon was released only after she gave statement under section 164, Cr. P. C. Implicating him. He has further stated that his parents had been taken and detained at the police station. He was threatened by the, police that in case be did net make the confession they would maltreat and disrespect his parents. He was illegally detained from 23rd. To 26th June, 1972. On 26-6-1972, he was told that he was being taken to police officer who would record his statement and if he did not give the confessional statement as dictated to him he would be returned to the police custody. He was then taken to a person who neither told him that he was a First Class Magistrate nor did he tell him that in case he made or not the judicial confession be would not be sent to the police custody. He has further stated that he was talking. In English and Urdu and he could not follow him. He has not examined any evidence in his defence. 11. The trial Judge believed the prosecution evidence and held the accused appellant guilty of the offence with which he was charged, and convicted and sentenced him as stated above. 12. The question whether deceased Vali Muhammad died as a result of injuries received by him on the night falling between 22nd, and 23rd, June, 1972, is not disputed. It is even otherwise amply proved by the evidence on record that he died on account of the injury received by him on the light aforesaid. The post-mortem report recorded by Dr. Faiz Muhammad, who performed the post- mortem examination on the dead body of Vali Muhammad clearly shows that the deceased died on account of the aforesaid external injury as a result of which fourth survical disc, spinal cord and large vessels of the neck were on either sides cut. As a result oesophagus was cut through and through and treachea was as well cut. According to the opinion of the doctor the death had occurred due to shock and haemorrhage on account of the said injury, which appeared to have been caused by a sharp cutting weapon such as knife or a dagger and was sufficient to cause death in the ordinary course of nature. It thus stands proved by the medical evidence that Vali Muhammad died as a result of injury received by him on the night between 22nd and 23rd, June, 1972. It follows, therefore, that whoever inflicted the said injury, had the intention to cause the death of the deceased or at least intended to cause such bodily injury as was in all probability sufficient in the ordinary course of nature to cause his death. In our view, therefore, it is clear that the offence of murder has been established in the case of the death of the deceased Vali Muhammad. 13. The only question for determination is as to whether the accused appellant committed murder of deceased Vali Muhammad on the night of the incident. On the admitted facts of the prosecution case, there is no ocular evidence connecting to accused appellant with the offence. The prosecution case is based on the circumstantial evidence, consisting of judical confession of the accused appellant, his extra judicial confession before Mst. Wram Khatoon wife of the deceased Vali Muhammad and P. Ws. Suleman and Achar, the recoveries of blood-stained knife and blood- stained `shalwar' and the evidence of the deceased having been last seen with the accused appellant. 14. We would, in the first instance, discuss the judicial confession made by the accused appellant before the Additional District Magistrate, Sanghar, Mr. Makhmood Ali. He retracted from the confession alleging that it was neither true nor voluntary. The confessional statement reads as under
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"I have been residing in Sanghar for the last about 31 years and have been studying in Madrasah Arabia, in front of the Government High School, Sanghar. Master Vali Muhammad used to treat me as his son. Two months back, he forcibly took me to his house. I was, not going due to shyness. Thereafter I started visiting his house. One day, Master Sahib had gone out. His wife sent a boy to Madrasah to call me. I went into her house. That woman asked me to commit sexual intercourse to which I refused. On my refusal, she threatened that she would tell her husband that I had raped her. Being helpless I committed sexual intercourse. In the same way for 4/5 times, his wife got sexual intercourse committed by me in his absence. Only a week back, the wife of the Master asked me that I should kill her husband and that she would marry me. I refused to do the same (saying) that I have remained with him for 3/4 years and that he was treating me as his son and that it was a wrong thing. Then the woman threatened me that she would inform the police as well as her husband that I was daily committing rape upon her forcibly. Being helpless, I killed the Master in front of the gate of the College's Hostel at 10-00 O'clock on the Friday night. After the Isha prayers, the Master Sahib asked me to accompany him as he had some work in the city. I refused to go to the city and then he told "Let us go towards Nawabshah Road for a walk." I picked up my knife from the bag and when reached near the College's Hostel, he felt to pass urine and sat down to make water. I stabbed knife into his neck from behind and he fell down in a ditch. I slaughtered him with the knife. I went to the house of Vali Muhammad along with the knife and, having washed the knife and hands, went to the Madrasah. In the morning, I threw the same into a drain of water. The brother of the Master told the police that I had committed the murder. I showed the dead body to my teacher Sher Muhammad and (we) both went and told Abdul Majeed, Vakil and Vakil Sahib reported at the police station. The policetook me and I narrated the whole facts to the police." 15. The plain reading of the confessional.--statement of the accused appellant makes it clear that it is in direct conflict with the prosecution version and the version of Mst. Ikram Khatoon, wife of the deceased Vali Mohammad, as the prosecution version, which is based on the statement of Mst. Lkram Khatoon, is to the effect that it was the accused appellant himself, who proposed to marry her after killing her husband deceased Wali Mohammad, which offer she declined but allowed him to carry on sexual connections with her, whereas the confessional statement discloses that it was under the pressure of Mst. Ikram Khatoon that the accused appellant had to carry on sexual intercourse with her and that she offered and pressurized him to commit sexual intercourse with her and kill the deceased Vali Mohammad in order to facilitate her marriage with him. The version disclosed in the confessional statement is very clearly in conflict with the medical evidence as well as according to the confessional statement the accused appellant stabbed knife into the neck of the deceased Vali Mohammad from behind with the result that he fell down in a ditch, whereas, according to the medical version, it could be that the assailant and the deceased might be face to face at the time the injury was caused to the deceased. It would, therefore, be very clear that the confessional statement of the accused appellant does not receive corroboration either from the prosecution version or the version of .List. Ikram Khatoon, wife of the deceased as well as from the medical evidence on the record. What we further find from the judicial confessional itself that the learned Ist Class Magistrate did not inform the accused appel--lant that he was before a 1st Class Magistrate. He did not ask him as to why he was making the confessional statement. What we further find that the did not put him questions to ascertain that the confession was voluntary. The confessional statement had been recorded in Urdu language and there is no dispute that the accused appellant is Sindhi speaking and there appears no mention throughout the confession that it was read over and explained to , the accused appellant in Sindhi language. What we further find, that the Ist Class Magistrate did not give second warning to the accused appellant after he had allowed him time for deliberations. It appears that the Magis--trate recorded the confession in
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a routine manner, rather than with due care and caution after observing the necessary legal formalities and complying the requirements of law. 16. The judicial confession was recorded on 26-6-1972, whereas there is no definite version about the time and the date of the arrest of the accused appellant. According to Mst. Ikram Khatoon, as her version gives the impression; he was arrested on 23-6-1972. The version of P. Ws. Suleman and Achar gives a clear impression that the accused appellant was arrested on 24-6-1972. The entries in the Judicial confession also support the version to that effect. According to the Investigating Officer Abdur Razzak, he was arrested on 25-6-1972. The version of Mst. Ikram Khatoon, Suleman and Achar appear to us more reliable than that of the Investigating Officer and can safely be accepted in the circumstances of the present case. It would, therefore, appear that the accused appellant remained in police custody for more than 24 hours and without obtaining a remand. No explanation whatsoever has been offered by the prosecution for the illegal detention of the accused appellant by the police before his judicial confession was recorded. What we find further is, that the prosecution has failed to examine the Ist Class Magistrate in support of the judicial confession. What we find, that the Magistrate presently avoided to appear in the Court for evidence, though summoned and with the process for a number of times. The learned trial Court in such situation should have reverted to the provisions of Criminal Procedure Code in order to make the appearance of the Magistrate available, but has failed. It would suffice to say that the prosecution is deprived of the benefit of the evidence of the learned Magistrate, who alone would have been able to explain the circumstances under which he failed to observe the necessary legal formalities and failed to comply with the require--ments of law, while recording the judicial confession. Consequently, the find that the judicial confession recorded in the present case is not a speaking confession and no reliance can be placed on such a confession. The learned counsel appearing on behalf of the State, in absence of corroboration in material particulars to the confessional statement and/or that the manner n which it was recorded has frankly conceded that it cannot be safely relied upon and we have no other option, but to rule it out of consideration. 17. We would then discuss extra judicial confession made by the accused appellant before Mst. Ikram Khatoon, wife of the deceased Vali Mohammad and P. Ws. Suleman and Achar. As regards version of Mst. Ikram Khatoon, in that respect, it is persistently inconsistent. According to her version in the trial court, accused appellant on the night of incident returned with a blood--stained knife and hands and informed her that he had killed deceased Vali Mohammad and she would be now in a position to marry him. According to her, there houses of Punjabies near her house but neither she raised cries even after the accused appellant left the house nor did she got to her neigh-- bours to inform them on the day of incident. She did not expressly say about the extra-judicial confession of the accused appellant in her statement recorded under section 164, Cr. P. C. Which, according to her, was recorded after her detention at the police station for about 8 days. What we further find, that the complainant Moulvi Sher Mohammad lodged the first informa--tion report on 23-6-1972 at 7 p.m. At . Sanghar Police Station after he had contacted Mst. Ikram Khatoon and had known the full facts from her but the first information report is silent in that respect. It does not say that Mst. Ikram Khatoon informed the complainant Sher Mohammad that on night of the incident the accused appellant had gone to her house with a blood-stained knife and hands and informed her that he had killed her husband, and that he should be pardoned. Her version in her statement recorded under sec--tion 164, Cr. P. C. Has been totally belied by the version given in the first information report, which was lodged by Sher Mohammad after making enquiries from her. According to her, what is disclosed in the first informa--tion report by complainant Sher Mohammad is that the deceased Vali Mohammad went to her on the night of incident and informed her that some people were after him and were not leaving him. He was going with them and in case he did not return within half an hour he should be presumed to have been finished up.
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The version further shows .That deceased Vali Mohammad informed her on an earlier occasion also that he had enmity with his relatives and caste-follows and he might be finished up one day. It appears that she has very clearly improved upon such version subsequently recorded in her statement under section 164, Cr. P. C. In order to implicate the accused appellant at the instance of P. Ws. Suleman and Achar, the close relatives of the deceased. P. W. Suleman admittedly brother of the deceased Vali Mohammad, subsequently married Mst. Ikram Khatoon after the death of Vali Mohammad. Mst: Ikram Khatoon, therefore, does not appear to be a trustworthy witness and safe reliance cannot be placed on her evidence. 18. We would then discuss the evidence of P. Ws. Suleman…
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