1. ' MUHAMMAD KHURSHID KHAN, J.-Mian Jan son of "Alain Jan, aged about 30 years, Afghan by caste and resident of village Kandaharai in Mahmund Agency, stood his trial in the Court of Sessions Judge, Mardan, under section 302, Pakistan Penal Code, for having committed the murder of Mst.
2. Taj Mahala, by firing at her, on the 4th day of February, 1976, at about 3-30 p.m., in the limits of Akram Khan Koroona, distant 8 miles from Police Station, Takht Bhai. At the conclusion of the trial, he was found guilty of the offence of murder and was convicted under section 302, Pakistan Penal Code, and sentenced to transportation for life, by the Sessions Judge, by his judgment dated 20-5- 1978. This appeal is directed against the said conviction and sentence.
3. ' The facts of the case for the prosecution are that since about fifteen years prior to the present occurrence, the accused appellant was serving as a domestic servant of Habib-ur-Rehman husband of Mst. Taj Mahala deceased of this case. The women-folk of the latter's family did not observe pardah from him. On the fateful day, at about 3-30 p.m., Mst. Taj Mahala was in her own house when in the meanwhile, the accused turned up there. Said Nabi P. W. 7), a brother of her husband, was also in the house. Mst. Taj Mahala addressed the accused asking him to return Rs, 600 which he had stolen from her box, a day before. Upon this, the accused got infuriated, pulled out a tamacha from his trouser's fold and fired three shots simultaneously at her, felling her down on the ground. The accused was chased by Said Nabi (P. W. 7), and his brother Amir Muhammad (P. W. 9) who had by then reached the spot, but with no success as he succeeded in making good his escape. Mst. Taj- Mahala succumbed to her injuries at the spot. Said Nabi, P. W., alongwith others, took her dead body to Police Station, Takht Bhai, where he reported the matter to the police.
4. ' The First Information Report, Exh. P. A., was recorded by Sub-Inspector Muhammad Saeed, Station House Officer, Police Station, Takht Bhai, (P. W. 10) to the dictation of Said Nabi P. W. After the report was recorded, it was read over to the latter who thumb-marked the same in token of its correctness. The Sub-Inspector then prepared the Inquiry Sheet Exh. P. C. And the Inquest Report Exh. P. C/I and despatched the dead body for post-mortem examination under the escort of Foot Constable Gul Muhammad (P. W. 2). Thereafter, the Sub-Inspector proceeded to the spot reaching there at 5-30 p.m. He inspected the spot, prepared the site plan with all the notes thereon, and took into possession 25 pieces of broken bangles Exh. P. Lying there vide memo. Exh. P. B. He collected bloodstained earth from there and made it into a sealed parcel vide Memo. Exh. E and also took into possession from the spot two empties lying there and made them into a sealed parcel. The Sub-Inspector also recorded the statements of witnesses.
5. ' As indicated already, the dead body of Mst. Taj Mahala was despatched for post-mortem examination under the escort of Foot Constable. Gul Muhammad (P. W. 2). The autopsy on the dead body was conducted by Lady Doctor Miss Bhagwant Devi, who, on superficial examination, found the following injuries on the dead body :- "(1) Two fire-arm entrance wounds each of the size of 1/2 x 1/2" on the left side of the neck.
(2) Three fire-arm exit wounds each of the size of 2/3"X 2/3" cavity deep two anteriorly on left of chest, one posteriorly on the back left scapula."
6. ' On internal examination, she found the walls, ribs, cartilages, pleurae, larynx, both lungs and blood vessels, beneath the wounds injured. Death, in the lady doctor's opinion, was due to shock and haemorrhage resulting from injuries to carotid and vital organs like lungs. All the injuries were found to have been caused by a fire-arm.
7. ' After the post-mortem examination, the Lady-Doctor handed over to F. C. Gul Muhammad, shirt of the deceased, who in turn, made over the same to the Investigating Officer. It was taken into possession by the latter vide Memo Exh. P. C.
8. ' The accused abscoded after the occurrence. The police searched for him for quite some time but in vain. Eventually, the Sub-Inspector obtained his search warrant under section 204, Criminal Procedure Code, and entrusted it to Foot Constable Jan Muhammad (P. W. 3). The latter returned the search warrant unexecuted stating that in spite of the search having been made by him in the villages mentioned in his report, he could not find out the accused. Thereupon, proceedings under section 87 of the Criminal Procedure Code were initiated and a written proclamation was published. After observing all the legal formalities, the Sub-Inspector, submitted challan against the accused under section 512 of the Code of Criminal Procedure.
9. ' On September 18, 1976, Masood Khan, P. W. 11, who was then posted as Inspector, C. I. A.
10. Establishment, Mardan, was informed by Habib-ur-Rehman husband of Mst. Taj Mahala deceased that the accused was reportedly present in Rawalpindi. The Inspector, accompanied by the informant and one other person, proceeded to Rawalpindi and succeeded in arresting the accused from Kanna brick kiln. The accused was then brought to Mardan. The Inspector interrogated the accused. On interrogation, the latter disclosed that he could lead to the discovery of the weapon of offence which had been delivered by him to one Sultan of village Chano Shah. The Inspector took the accused to the said village and on the latter's asking, Sultan aforesaid produced Tamacha Exh.
11. P. 6 and a holster containing five rounds of '32 bore which were taken into possession by the Police Officer vide memo. Exh. P. F. The Tamacha (Pistol) was made into a sealed parcel. The accused then expressed his desire to make a confession, whereupon application Exh. P. J. Was drafted and the accused was then taken by Muhammad Quraish, Assistant Sub-Inspector Police, to Mr. Abdul Qadir, Magistrate First Class, Mardan (P. W. 1). The said Magistrate recorded his confessional statement as contained in Exh. P. C.
12. ' The report of the Chemical Examiner Exh. P. B and that of the Serologist Exh. P. B/1 disclosed that the earth and the shirt sent to them for examination were stained with human blood. After receipt of these reports and the arrest of the accused, Mr. Naik Muhammad P. W. 8 who had succeeded Muhammad Saeed as Station House Officer, Takht, Bhai, submitted supplementary challan against the accused on October, 23, 1976. After the submission of supplementary challan, the report of the Fire-Arm Expert Exh. P. N. Was received on 5th December, 1976 which is to the effect that the crime empties marked C. 1 and C. 2, had been fired from the pistol sent to him for examination.
13. ' In all, thirteen witnesses were examined by the prosecution at the trial, the nature of whose evidence has been indicated above. The accused in his statement denied the allegation that he had either murdered Taj Mahala deceased or had led to the recovery of the alleged weapon of offence. When questioned as to the confessional statement said to have been made by him, he stated that it was the result of coercion, undue influence and was involuntary, adding that even the concerned Magistrate threatend to remand him to Police custody in the event of his not making a clean breast of his guilt. No evidence, however, was led in defence.
14. ' The trial Judge believed the prosecution evidence and held the accused appellant guilty of the offence for which he was charged, and convicted and sentenced him, as already indicated.
15. ' The question whether Mst. Taj Mahala died as a result of injuries received by her on the 4th of February, 1976, at about 3-30 p.m., is not disputed. It is even otherwise amply proved on the record that she died on account of the injuries received by her on the date and at the time aforesaid. The post-mortem report recorded by Lady Doctor Miss Bhagwant Devi who performed the post- mortem examination on the dead body of Mst. Taj Mahala, clearly shows that she had two entrance, and three exit wounds on her person, having been caused by a fire-arm, as a result of which walls, ribs, cartilages, pleurae, larynx, both lungs, and blood vessels beneath the wounds, were injured. All these injuries were ante-mortem. Her opinion further was that death had occurred due to shock and haemorrhage resulting from injuries to carotid and other vital organs like lungs.
16. The time that, according to the lady doctor, elapsed between injuries and death, was five to ten minutes. It thus stands proved by the medical evidence that Mst. Taj Mahala died as a result . Of injuries received by her on the 4th of February, 1976, at about 3-30 p.m. It follows, therefore, that whoever inflicted the said injuries had the intention to cause the death of the deceased or at least intended to cause such bodily injuries as were in all probability sufficient in the ordinary course of nature to cause her death. In our view, it is clear that the offence of murder has been established in the case of the death of Mst. Taj Mahala.
17. ' The moot question in the case, however, is as to whether Mian Jan accused was responsible for causing the injuries to Mst. Taj Mahala. In order to fix the guilt on the accused, the prosecution has relied on the evidence of Said Nabi (P. W. 7) and Amir Muhammad (P. W. 9), the evidence of abscondence of the accused, the recovery said to have been effected at the instance of the accused, and the confessional statement made by him. Before a Magistrate. It may be stated that Said Nabi and Amir Muhammad P. Ws. Supported the prosecution case in all its material particulars. The trial Judge seems to have come to the conclusion that the confession made by the accused was voluntary and was further corroborated .By the evidence of P. Ws. Said Nabi and Amir Muhammad who had no motive to implicate the accused falsely. He, however, was of the view that the factum of abscondence of the accused did not stand proved for the prosecution's failure to bring on record the warrant said to have been issued under section 204, Criminal Procedure Code, and the proclamation under section 87 of the same Code, and that the recovery of pistol was also immaterial as it was directly hit by the provisions of sections 24, 25 and 26 of the Evidence Act.
18. Considering the confession and the testimony of the above mentioned two witnesses sufficient, the trial Judge proceeded to hold the accused guilty of the offence charged with.
19. ' Various points have been taken on behalf of the appellant. His first of all stated that the trial Court was in error in relying on the retracted confession of the accused-appellant as the confession Was irrelevant because of its having been forced from the mind of the accused by torture of fear. In this connection, it has been pointed out that the accused remained in Police custody for a number of days and he was produced before the Magistrate for the purpose of making confession from the police custody and even then, the Magistrate did not tell him that he would not be remanded to Police custody whether he does or does not, make the confession. After perusing the evidence we have come to the conclusion that there is no justification for this argument. It is true that a confession forced from the mind by torture of fear having reference to the charge against the accused person and proceeding from a person in authority, is irrelevant in a criminal proceeding.
20. But it is also true that circumstances must exist to show that the confession was made by torture of fear and that it was voluntary. It is well settled that onus of proving that confession is irrelevant by reason of its having been obtained by inducement, threat, or promise, is on the accused person.
21. The mere fact that the confession has been retracted and that the accused remained in police custody for a day or two, as has been the position in the present case, would not necessarily show that the confession was not voluntary. The word "voluntary" is used in respect of confession, means the confession not caused by inducement, threat or promise. It is not denied that 'in the present case, the Magistrate put a specific question to the accused whether he was making confession of his own free will and the answer given by him was in the affirmative. The Magistrate was examined as a prosecution witness before tile. Sessions Court. The evidence of the Magistrate has satisfactorily proved that the confession made by the accused was voluntary, and that he had as a matter of fact satisfied himself by putting questions and getting answers that the confession was being voluntarily made by the accused. The Magistrate gave him reasonable time for reflection and thereafter recorded the confession. The accused was also warned by him that confession, if made, may be used in evidence against him. It is thus obvious that the Magistrate had cautioned the accused and explained to him that he was not bound to make the statement and if he did so, it might be used as evidence against him.
22. ' As to the contention that the Magistrate failed to inform the accused that they would not be remanded to police custody regardless of the fact whether he does, or does not, make a confession, and for this failure on his part, an inference should be drawn in favour of the accused having 'made the confession on account of the torture of fear we regret our inability to accept it. A reference to the questions by, and the answers to, the Magistrate would show very clearly that the accused was given to understand that after making a statement, he would be remanded to judicial custody. This assurance obviously meant that he was not to be remanded to police custody. At this stage, another point raised by the learned counsel may also be taken notice of. He urged that by the word "statement", the Magistrate meant a "confession" and nothing else. He, therefore, wishes us to hold that what the Magistrate expected of the accused was a confession of his guilt and nothing short of it. We do not think that there is any substance in this point. It is to be remembered that even a refusal on the part of the accused for making a confession would have amounted to his making a statement as contemplated by the Magistrate. The argument advanced by, the learned counsel loses sight of the fact that a statement does not necessarily amount to a confession.
23. ' The confession in the present case comprises two parts, one being inculpatory having reference to the factum of the accused's firing at Mst. Taj Mahala deceased, and the other exculpatory, in the sense that the accused claimed to have wrested the, pistol from the deceased who allegedly made an attempt at his life. While explaining the position in the confessional statement, the accused said that Mst. Taj Mahala deceased who was not a legally wedded wife of, and was on bad terms with Habib-ur-Rehman, wanted the accused to kill him, and on his refusal to do so, got infufiated and took out pistol for killing the accused which the latter snatched from her and thereafter, he fired at her with the same pistol. The learned counsel for the appellant, while dealing with this aspect of the matter, argued, firstly that the Court must accept or reject the confession as a- Whole and cannot accept only the inculpatory. Elements while rejecting the exculpatory element as inherently improbable or false. He said that the exculpatory part of the confession was false even according to the prosecution's case tself with the result that the whole of the confession should be discarded as being a false one In the, next place he said that in case the confession is accepted in its entirety, the accused would then be entitled to the right of private defence. This argument, in our view, has the effect of putting the cart before the horse. There is no doubt that a confession like an admission, has to be taken and considered as a whole because la confession is evidence against, as well evidence for, the prisoner, The Court is not, however, bound to believe or disbelieve the confessional statement as a whole ; it is open to it to believe one part of it and reject the other, where there is credible evidence in the case. The rule that a confession must either be accepted or rejected in its entirety applies only to those cases when there is no other evidence in the case, where the other evidence is untrustworthy, and the only material for decision is the confession. In the present case, there is credible evidence in the form of the statement of Said Nabi, P. W. 7, which clearly suggests that the plea taken by the accuse that he had been attacked by the deceased with a pistol in her hand, was false. This evidence was incompatible with the said part of the confessional - statement. There is thin nothing -to prevent the Court froth rejecting that part of the confession, and acting on the residue which refers to the killing of Mst. Taj Mahala by the accused and is corroborated by the credible evidence of Said Nabi P. W.
24. ' Assuming, however, for the sake of arguments that the confession was true in its entirety, the appellant is still confronted with another difficulty, and a formidable difficulty indeed. In this connection, it may be stated that the accused appellant himself admits in the confession that he wrested the pistol from the hand of the deceased and thereafter fired at her.
25. ' Once the -weapon had been seized from the deceased, the apprehension 01 danger to the accused did not continue with the result that thereafter the accused was not acting in the exercise of right of private defence but committed murder.
26. ' The learned counsel for the appellant also submitted that the probabilities of this case would be more important to find out the factual position. In the first place, it is said that the cot on which the deceased was sitting immediately before the occurrence, and which is stated to have been stained with blood was not taken into possession by the police. In the next place, it is said that the prosecution had also offered no explanation for the broken bangles lying at the spot as well as a scratch on the nose of the deceased. By saying so, the learned counsel wants us to believe that the occurrence did not take place in the manner given by the prosecution. There is, in our view, no substance in the argument so advanced. The factum of the cot not having been taken into possession by the police can at the most point to it efficiency on the' part of the investigating agency and would not necessarily lead to the inference that the occurrence took place in a manner different from the one suggested by the prosecution. There was also nothing improbable in the broken pieces of bangles lying at the spot and in a scratch on the nose of the deceased as they could be possible by a fall.
27. ' Much stress has been laid by the learned counsel for the appellant on the adequacy of motive in this case. He argued that the warning given by the deceased to the accused to return her stolen amount of Rs, 600 could not constitute and adequate motive for killing her. We are unable to subscribe to the view so expressed. Instances are not wanting where on trifling matters, murders have taken place. But even if it be assumed for the sake on arguments That 'the motive given by the prosecution in this case is inadequate, it will not serve any useful purpose for the defence as there is over whelming evidence on the record' to show that the accused had committed the offence charged with.
28. ' It may be stated here that the learned Advocate-General appearing on behalf of the State before us seriously challenged the findings of the trial Court with regard to the abscondenee of the accused and the recovery of the weapon of offence. He urged that despite, the fact that the search-warrant issued under section 204 of the Criminal Procedure Code and the proceedings under section 87 of the same Code had not been made a part of the trial Court's record, they could be taken into consideration by the Court. With regard to the recovery, he maintained that it ought to have been taken into account because the weapon of offence had been produced by one Sultan at the instance of the accused and not on the asking of the police. We are not prepared to attach much importance to this argument. The statement made by the Foot Constable with regard to the report recorded by him on the search warrant should have been proved by its production in Court and the same should have been the case with the proceedings under section 87 of the Code of Criminal Procedure. Nevertheless, there is a circumstance which ought to be, taken into consideration without having course to the proceedings in regard to the abscondence of the accused. It is a fact that till the present occurrence, the, accused lived in the house of the deceased's husband. Immediately after the occurrence, he disappeared from the village and remained in hiding, for over seven months and in our view it is sufficient corroborate the evidence produced be the prosecution and this conduct on the part of the accused' undoubted points to his guilt.
29. ' As regards the recovery, it may be stated that even if the reasoning the trial Court in this regard is not accepted, it will make no material difference because, even otherwise, the recovery appears to us to be doubtful. It is a fact that Sultan from whom the recovery is stated to have been effected was not produced by the prosecution at the trial to support its case. The evidence in this regard is confined to the statements of two police officials, namely, Masood Khan Inspector C. I. A.
30. Establishment, and Niek Muhammad Khan S. H.
31. 0., Police Station, Takht Bhai. The non-production of Sultan, the only disinterested .Witness, is significant and can lead to the, conclusion, and the only conclusion, that if he had been produced at the: trial, he would have not supported the prosecution. No doubt, two empties and the pistol were sent to the Fire-Arm Expert and he opined that they had been fired from the same pistol but that is not all we have to see. The possibility of firing having been made from the same pistol after its alleged recovery cannot be ruled out of consideration.. In this connection, it may be observed that it is not safe, in the given circumstances, to accept the evidence of police officials as--a gospel truth. The cases, both reported and unreported, are not wanting where Investigating Police Officials have been found to have gone to the length of manufacturing false evidence in the mistaken zeal of discharging their duties in detecting crimes. In this view of the matter, we can attach no importance to the so-called recovery.
32. ' From the above discussion, we find that the confession made by the accused with regard to the murder of the deceased by him, is fully corroborated by credible evidence in the case, and the trial Court was thus, perfectly justified in convicting him under section 302; Pakistan Penal Code. We, therefore, maintain the conviction and the sentence passed on the appellant and dismiss this appeal. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.