MIAN BURHANUDDIN KHAN, J.-Inayat appellant was tried and convicted under section 302, P. P. C.
For the murder of Abdul Rahman at the brick kiln run by Muhammad Saeed, P. W. 8, complainant near Mughalpura and was awarded death sentence by the learned Additional Sessions Judge, Lahore which was confirmed vide judgment of the Lahore High Court dated 29-1-1976 and his appeal was dismissed. Leave was granted by this Court to consider the question of the evidentiary value of the confessional statement record by a Magistrate and extra judicial confession made by the appellant before the prosecution witnesses Muhammad Saeed, P. W. 8 and others.
2. According to the prosecution, Abdul Rahman, deceased, used to live2t Chak Muridke, District Sheikhupura alongwith his wife Mst. Majeedan. P. W. 15 prior to the occurrence. Inayat accused/appellant also used to live in the aforesaid village. About 9/10 months prior to the occurrence the accused was seen by the deceased in a compromising position with Mst.
Majeedan, P. W. 15 wife of the deceased. This matter was placed before the respectable of the village who turned Abdul Rahman and his wife Mst. Majeedan out of the village. The deceased alongwith his wife started living at Brick Kiln No. 76/H in the area of Harbanspura, Lahore and the deceased started working on a labourer with Muhammad Saeed, P. W.
8. Inayat accused/appellant also followed them and got himself employed by same Muhammad Saeed, P. W.
8. It is alleged that the liaison between the accused/appellant and Mst. Majeedan continued even at the Brick Kiln. A few days earlier to the occurrence Mst. Majeedan and Inayat accused appellant were again seen together.
3. On the morning of 19-6-1971 the accused/appellant came to the house of the deceased at 3 a. m. And took him along for working in the Brick Kiln. Reaching near Mian Mir Canal the accused/appellant, who was carrying a Toka, dealt blows with it to the deceased Abdul Rahman, killed him and threw his dead body and the Toka in the aforesaid canal. At about 9 a. m. Mst.
Majeedan saw the accused/appellant and inquired about her husband AEdul Rahman deceased whereupon the accused/appellant Inayat told her that he had killed the deceased with a Toka and had thrown his dead body in the canal. On learning about the murder of Abdul Rahman deceased she went weeping to Muhammad Saeed, P. W. 8 and told him about the murder. Muhammad Saeed, P. W. 8 sent for the accused. The accused/appellant came and in the presence of Muhammad Saeed, P. W. 8 and Muhammad Arshad and Muhammad Asghar, P. Ws., made a clean breast confession of the crime.
4. Muhammad Saeed, P. W. 8 then went to the Police Station Mughal--pura and lodged the F. I. R.
Exh. P. E. Which was recorded by Dilawar Hussain Shah, S. I. Dilawar Hussain thereafter proceeded to the spot and got the dead body of Abdul Rahman recovered from the canal. He prepared the necessary documents. He also arrested the accused. The accused/appellant while in police custody, led to the recovery of the dead body and Toka P-3 from the canal.
5. On 21-6-1971 the accused was produced before Ch. Abdul Waheed, Magistrate 1st Class, P. W. 14, who recorded his confessional statement Exh. P. J/1. The Toka P-3 was sent to the Serologist who .Found the same to be stained with human blood vide his report Exh. F. O. Post-mortem examination was performed by Dr. Nasim Ahmad Farooq but he could not be examined as he had left abroad. His report was, however, proved through another witness namely Abdul Sattar Shah, P.
W.
6. Injuries given in report Exh. P. H. Are as follows:
(1) incised wound 4--- x 2" front of neck transversely placed at the level of thyroid cartilage.
(2) incised wound 3 ----- x ----- x skin deep right side of neck.
(3) incised wound 3 ----- x ----- x muscle deep right side neck lower part.
(4) incised wound 1 ----- x 1 ----- x muscle deep right side neck posterior aspect.
(5) incised wound 1 ----- x 1 ----- x skin deep left scapular region.
(6) Bruise 2 ----- x ----- scalp deep left temporal region.
6. Prosecution examined Muhammad Saeed, P. W. 8 who resiled from his statement recorded by the Committing Magistrate but the same was transferred to the Sessions file under section 288, Cr.
P. C. By the trial Judge; Muhammad Asbad, P. W. 11 and Muhammad Asghar P. W. 12 but they also resiled from their statements and were declared hostile by the prosecution; Abdul Sattar, P. W. 13 brother of the deceased was examined regarding the motive. Sh. Abdul Waheed, P. W. 14 M. I. C.
Proved the confessional statement of accused recorded by him Exh. P. J. 1; Mst. Majeedan, P. W. 15 furnished the motive for the crime and also proved the extra judicial confession made by the accused/appellant before her. Muhammad Hussain, P. W. 16, a cousin of the deceased was also examined and he too reaffirmed the motive given by the other prosecution witnesses. The accused/appellant, when examined, denied the charge as well as his liaison with the wife of the deceased. He also repudiated the confessional statement Exh. P. J./1 as well as the extra-- judicial confession made by him before Mst. Majeedan, Muhammad Saeed, Muhammad Arshad, Muhammad and others.
7. Learned counsel appearing for the appellant contended that the prosecution has totally failed to bring home the charge to the accused; appellant, and first of all, challenged the confessional statement Exh. P/1 recorded by Sh. Abdul Waheed M. I: C. On the plea that he did not comply with sections 164 and 364, Cr. P. C. And did not duly warn the accused/ appellant that his confessional statement will be used as evidence against him nor informed the accused/appellant that in any case he will not be remanded to the police custody, nor inquired from the accused as to how long he had remained in the police custody before he was brought to the court; that the learned Magistrate, in his cross-examination admitted that formalities as required under the low were not observed by him. The learned counsel referred the Court to his cross-examination where he had admitted.
"I did not provide any time to the accused for pondering over the answer which he gave to my questions before recording the statement of the accused. I told the accused after recording his statement that he would be sent to judicial lock-up but I did not record this fact in my proceedings I did not ask the accused before recording the statement to go on oath (In the confessional statement "Ba Iqrar Saleh" is written before the statement started) I do not remember if I sent Inayat accused to the judicial lock-up by my own order on the day when recorded the statement . . . . . ."
8. We are of the opinion that even if the confessional statement is kept out of consideration, the other evidence has to be examined in it correct respective. It is in the prosecution evidence i.e., in the statement of Mst. Majeedan, P. W. 15 that the accused had been carrying on with her; that these connections persisted during her stay at the Brick Kiln and that on the day of occurrence the accused/appellant came to her house and took away her husband (the deceased on the pretext that they had to start work at about 3 and later on, at 9 a. m. When she saw him and inquired from him about the deceased, he (accused) replied that he had murdered the deceased whereupon she went weeping to Muhammad Saeed, P. W. 8 who sent for the accused and in the presence of Muhammad Saeed and other witnesses the accused/appellant made the extra-judicial confession, and led the witnesses to the bank of the canal (sic) body of the deceased; a search was made and the dead body was recovered from the canal. This statement has not been shattered in the cross-examination nor any doubt has been created at Mst. Majeedan's credibility as a witness in the case. This statement was brought on the Sessions file under section 288, Cr. P. C.
And, therefore, worth credence and it can sustain the conviction of the accused/ appellant. This statement of Muhammad Saeed, P. W. 8 was brought on the Sessions file by order of the Court dated 17-12-1974 wherein the witness had stated that wife of the deceased came weeping to him at about 5 p. m. Where Muhammad Arshad and Muhammad Asghar were present, and said that she suspected that Inayat accused/appellant had murdered the deceased. He (Saeed, P. W. 8) sent for the accused and the accused confessed that he had murdered the deceased and asked for forgiveness; afterwards, the accused/ appellant led him (P. W. 8) to the place where he had murdered Abdul Rahman deceased and had thrown his body in the canal alongwith the weapon of offence i.e., Toka P-3. Saeed, P. W. Left the accused in the custody of his companions and went to the police station where he lodged the report Exh..P. E.
9. Learned counsel, however, contended that statement of Muhammad Saeed, P. W. 8 is belied by the very fact that the dead body of the deceased was recovered on 19-6-1971 at 5 p .m. But as per the statement of Syed Inam A.I Shah, Draftsman, P. W. 2 he went to the spot for the prepara-- petition of the site plan on 19-6-1971 at 12.00 O'clock. On examining the site plan we find that neither the time was mentioned nor the plan had been completely prepared by this witness (P. W. 2). In fact the site plan Exh. P. B. Was initially prepared by the Investigating Officer and later on, some entries were made by the witness (P. W. 2) regarding the scale and measurements of various points. As per Dilawar Hussain S. I. (P. W. 7) he, after recording the statement of Muhammad Saeed, P. W. 8, went to the spot and in his presence the accused/appellant pointed out to the police as to where the dead body of Abdul Rahman deceased was thrown by him alongwith the Toka which was recovered by Asghar, P. W. (turned hostile). The Toka was blood-stained and was sent to the Serologist who affirmed that the Toka was stained with human blood vide his report Exh. P. O. Thus, the prosecution case consists of the extra-judicial confession; recovery of corpus delicto. Therefore, we find no merit in this appeal and the same is accordingly dismissed.