MUHAMMAD AFZAL CHEEMA, J.-Vide his judgment dated 1-11-1968, Mr. Muhammad Amir Akbar Khan, Additional Sessions Judge, Lyallpur, convicted Nausher appellant aged 19 years on' to counts, firstly, under section 377, P. P. C. For having sub--jected Akbar Ali deceased, a youngster of about 10 years, to carnal intercourse, with an award of five years' R. I., and under section 302 P. P. C. For having murdered him at the same the and place, with an award of death sentence and a fine of Rs.
5,000 which, if realised, was to b:, paid as compensation to the mother of the deceased under section 544-A, Cr. P. C. In default of payment, he was directed to undergo further R. I. For three years, to be effective in the event of non-confirmation of the sentence of death by the High Court.
He has appealed against his conviction and sentences and his case has also been referred to us under section 374, Cr. P. C. For the confirmation of the death sentence. This judgment will dispose of the appeal as well as the murder
2. The short background of the case is that Akbar Ali deceased, the unfortunate victim, having lost his father about 6/7 years prior to the occurrence lived with his uncle Muhammad Sharif complainant P. W. 3 in Chak No. 259/G. B., Police Station Mamunkanjan, District Lyallpur, where the latter cultivated as tenant the land of Nur Ahmad Khan, Gadhi Baluch by caste, who appeared as P.
W. 4 at the trial. The deceased and other members of the family resided in their Dhari in square No. 20 of Nur Ahmad aforesaid. Muhammad Din P. W. 12, maternal uncle of Akbar Ali deceased, a resident of Chak No. 205/R. B. Police Station Khurarianwala, had taken on lease an orchard of Lal Khan Lambardar in Chak No. 185/G. B. At a distance of 7/8 squares from Chak No. 259/G. B. In south-west direction. The deceased daily used to carry the morning meals of his maternal uncle from their dhari in square No. 20 of Chak No. 259 to the orchard in Chak No. 185/G. B: on 29-9-1967, at about 8/9 a.m., he started as usual towards the orchard carrying four chapattis with some gur and cooked vegetables tied in a printed piece of cloth (Kandoori) P. 2, but never reached the destination. In the evening, when his elder brother Asghar Ali carried the evening meals to Muhammad Din, he complained of the non-receipt of the morning meals which caused them anxiety and apprehension of a foul play. Asghar Ali returned to the Dhari to inform Muhammad Sharif complainant who started searching for the deceased along with his brother Ghulam Nabi P.
W. 9 at about 8/9 p m., both of them went to the village mosque of Chak No. 185/G. B. To make an announcement on the microphone about the disappearance of the deceased, but before doing so they happened to meet one Bahadur Gadhi Baluch of village Chak No. 184/G. B. Who told them that he was informed by Jehan Khan, Mahmood, Gaman and Falak Sher in the presence of Muhammad Murad Lambardar that an unidentified dead body of a youngster was lying in the cotton crop of Jehan Khan Gadhi of Chak No. 184/G. B. And that he had himself come to make announcement of the same on the loudspeaker. It may be observed in this context that neither Bahadur nor any of the above-mentioned persons entered the witness-box. However, on receipt of this information, Muhammad Sharif complainant and his brother Ghulam Nabi P. W. Accompanied by Gaman, went to the cotton crop reaching there around 10 p.m. Where they identi--fied the dead body of Akbar Ali lying in a water-course between Killas Nos. 17 and 24 of square No. 10 of Chak No. 184. They found that the deceased had bled from both ears and there were also visible marks of throttling on his neck. Faeces had also come out of the anus. The shirt was on and the loin-cloth lay beneath him on the ground. All this gave clear indications of his subjec--tion to sodomy and death by strangulation. The place where the dead body was found was at a distance of to squares from the dhari of the complainant and one killa away from the path which the deceased used to take to go to the orchard in Chak No. 185. Leaving his brother Ghulam Nabi at the spot, Muhammad Sharif left for Police Station Mamunkanjan. It may be observed in this context that by the the the trial was held, there had been some readjustment of the jurisdictions of Mumunkanjan and Rajana Police Stations and Chak Nos. 259 and 184 were detached from Mamunkanjan and attached to Rajana Police Station. On his way, Muhammad Sharif learnt that the Sub-Inspector was on patrol duty near Muridwala. Accordingly, instead of proceeding to Mamunkanjan he went to Muridwala, reaching there at about midnight, when after about an hour and a half, the S. I. Reached there. There is, however, some discre--pancy on this point as according to Abdul Ghafoor S. I. F. W. 17, it was at 4 a.m. On 30-9-1967 while he was on patrol duty in Muridwala that Muhammad Sharif P. W. Came there and make statement Exh. P. A: before him. Another point of difference between them is that according to Muhammad Sharif, the state--ment was not read out to him nor did he thumb-mark it, He stated that before leaving for the spot, the S. I. Sent a paper to Mamunkanjan on which he had obtained his thumb-impression. He admitted, however, that Exh. P. A. Which was read out to him in Court was the same which he made before the S. I. At Muridwala. On the basis of statement Exh. P.
A., the formal F. I. R: Exh. P. A./1 was drawn up at Police Station Mamunkanjan at 6-10 a.m. On 30-9- 1967. Having despatched the statement to the police station for the registration of the case; -Abdul Ghafoor S. I. Repaired to the spot 6/7 miles away from Muridwala reaching there at about 6 a.m. He found the dead body lying in the water course running between Killa Nos. 17/2 and 24 of square No.
10. He prepared inquest report Exh. P. F./1 injury statement Exh. P. F. Of Akbar Ali deceased and handed over the dead body to F. C. Muhammad Sarwar P. W. 8 for being escorted to the mortuary at Kamalia for post-mortem examination. He found under the dead body chadar of green colour Exh. P. 1 and took it into possession vide memo. Exh. P. B. He picked-up blood-stained earth from the spot vide memo. Exh. P. C. And also took into possession four Chapatis wrapped in Kandoori Exh. P.
2. Vide memo: Exh. P. D. He recorded the statements of Muhammad Din, maternal uncle of the deceased, Ghulam Nabi, his paternal uncle and of Abdul Majid, Muhammad Iqbal and Abdul Razzaq P. Ws. Who appeared as Wajtakar witnesses as also that of Wali Muhammad, the recovery witness, and Muhammad Murad Lambardar who did not enter the witness-box. The recovery memos. Were attested by Muhammad Sharif complainant Wali Muhammad P. W. 11 and Muhammad Murad Lambardar: F. C. Muhammad Sarwar P. W. 8 .Produced before the S. I. Shirt P. 4 of the deceased which was handed-over to him by the doctor at the the of post-mortem examination. It was taken into possession vide memo. Exh: P. G. Attested by Ghulam Nabi and F. C~ Muhammad Sarwar P. Ws.
3. Since according to the st4tements of Abdul Majid P. W. 14, Muhammad Iqbal P. W. 15, Abdul Razzaq P. W. 16 the deceased was last seen with Nausher appellant on the morning of the 29th of September 1967, the S. I. Started searching for him. The suspicion was further strengthened by the statement of Nur Ahmad P. W., landlord of Muhammad Sharif complainant, who voluntarily appeared before the S. I. On 1-10-1967 in the village school of Chak No. 184/G. B. And stated that the appellant had approached him to seek his good offices and had made an extra---judicial confession before him. It was not till the 2nd of October 1967, that he was produced before the S. I.
By Muhammad Murad Lambardar in the village School of Chak No. 184/G. B. He was arrested and on interrogation led to the recovery of his blue colour loin cloth P. 3 from inside a bhoosa stack in Killa No. 6 of square No. 12 of Chak No. 184/G. B. It appeared to be stained with semen and faeces and was taken into possession vide memo. Exh. P. E., attested by Sher Muhammad P. W. 10, Wali Muhammad P. W. 11 and Muhammad Murad Lambardar. The Sub-Inspector got site-plan Exh. P. J.
Prepared through Lal Din Patwari P. W. 5 who visited the spot about a month after the occurrence on 30-10-1967 for the purpose.
4. Post-mortem examination of the dead body of Akbar Ali deceased was conducted by Dr. Nawab Din, Medical Officer, Civil Hospital Kamalia, vide his post-mortem examination report Exh. P. A., the doctor found it to be the body of a youngster of 9/10 years of age with mouth half open and the tongue protruding in between the teeth. Face was congested. Sub-conjunctival haemorrhage was present in both eyes. Hands were clinched and nails were cyanosed. Body was clad in white shirt and a green chadar soiled with faecal matter. It may be observed in this context that there appears to be some confusion as to whether. It was the same chadar which according to the S,. I., had already been taken into possession by him from the spot and made into a sealed parcel or it was another chadar having coincidently the same colour and having also been soiled with faecal matter. Bleeding from the mouth, nose and ears was present. The following injuries were found on the body :-
(1) Four contusion marks on the left side of the neck close to each other with cresentic abrasion.
Size of the contusion was from --" x --" to 1" x --" x --" size of abrasions was 1/3" x 1/6" to --" x 1/6" on front part.
(2) Two abrasions on the left side of the neck 1"x --" and 3/4" x 1/3" on its front part.
(3) Two abrasions on the right side of the neck front part size 3/4" x 1/4" and 1/2" x 1/4".
(4) An abraded area 6" x 5" on the front of right abdomen and right thigh.
(5) Scrotum and penis were abraded.
(6) An abrasion on the left thigh 1" x --".
(7) Seven abrasions on the front of left upper chest. Size from 1/4" x 1/15" to 1/3" x 1/8".
(ii) Extravasation of blood was present under injury No. 1 on the neck. Sheath of carotid vessels on the left side of the neck was ruptured and extravasation of blood was present around Larynx and tracheae were congested ; right and left lung were congested. Right side of heart contained blood.
Left was empty. Stomach contained four ounces of semi-fluid food. Small intestines contained digested diet. Large intestines con--tained faecal matter. Liver was congested, and spleen was congested. Bladder contained about 1 oz. Urine.
(i.e) In the opinion of the doctor, death was caused by asphyxia due to strangulation which was sufficient to cause death in the ordinary course of nature. Death had taken place immediately and probable the between death and post-mortem examination was about 32 to 34 hours. It may be observed that in his report Exh. P. H., the doctor made no reference to the deceased having been subjected to sodomy, nor did he notice any abrasion or scratch on the anul or perianul regions of the deceased. He asserted in cross-examination that chaddar P. 1 was the same which he had made over to the police. The doctor handed-over to F. C. Muhammad Sarwar to sealed phials containing anul and perianul swa bs, which were found to be stained with semen, vide Chemical Examiner's report Exh. P. K. The sealed packets, containing chador of the appellant. Chadar of the deceased and earth recovered from the spot were received by the Chemical Examiner on the 6th of October 1967, and vide his report Exh. P. L., the to chadars were found to be stained with semen and faecal matter, while the earth was found to be stained with blood which was determined to be of human origin vide Serologist's report Exh. P. M.
5. At the trial, the prosecution evidence consisted of the evidence of the departure: of the deceased on the morning of 29-9r-1967 from the dhari of his uncle Muhammad Sharif com--plainant for Chak No. 185, the testimony of Abdul Hamid P. W. 14, Muhammad lqbal P. W. 15 and Abdul Razzaq P.
W. 16, who last saw the deceased in the company of the appellant, the evidence of so-called extra- judicial confession based on the testi--mony of Nur Muhammad P. W. 4, the evidence of recover: of chadar P. 3 at the instance of the appellant, which was found to be stained with extreta rind semen, and lastly the abscondence of the appellant, who could not be arrested till the 2nd of October 1967.
It may be observed in this context that Nur Ahmad the witness of extra-judicial confession, and Wali Muhammad an important witness of recovery of chador P. 3, being Gadhi Baluches like the appellant, deliberately made concessions in favour of the defence as to completely deprive their testimony of reliability and evidentiary value.
6. Both before the Committing Magistrate as well as at the trial, the appellant denied the allegations of having committed the alleged offences, denied the recoveries or his production before the police by Muhammad Murad or having made an extra-judicial confession before Nur Ahmad against both of whom he alleged existence of blood feud of his family. He produced no evidence in defence.
7. In view of the concessions made by Nur Ahmad and Wali Muhammad P. Ws. In favour of the appellant, who were allowed to be examined by the A: P. P. Their statements before the C. M were transferred to the Sessions file under section 288 of the Cr. P. C. The learned trial Judge came to the conclusion that their tribal affiliations with the appellant having weighed with them they had been collusively introduces: some new material at the trial with a view to damage the prosecution case and help out the appellant. Implicit reliance was placed on the testimony of Abdul Majid, Muhammad Iqbal and Abdur Razzaq, the three Wajtakar witnesses; as also on the evidence of recovery of the semen-stained chadar P. 3 at the instance of the appellant which furnished sufficient corroborative evidence to which further support was lent by the medical evidence.
Consequently, the offences under sections 37'7 and 302, P. P. C. Were found to have been fully brought home to the appellant. Although his age given by the appellant at the trial was 16/17 years, yet preferring the age stated by him before the C. M. As 19 years, and presumably finding that to be correct, the learned trial Judge awarded him the sentence of death under section 302, P. P. C.
8. Learned counsel for the appellant raised the following contentions before us :-
(1) that the investigation did not appear to have been con--ducted by the Sub-Inspector in an honest and straightforward manner.
(2) that the three so-called Wajtakar witnesses, namely, Abdul Hamid P. W. 14, Muhammad- Iqbal P.
W. 15 and Abdul Razzaq P. W. 16 were wholly unreliable and should not have been believed.
(3) that the so-called evidence of extra-judicial confession was simply worthless and should not have been believed.
(4) that the evidence of recovery of the blood-stained chador was highly doubtful and unconvincing and even otherwise 'could not be used as a corroborative piece of evidence.
(5) that the medical evidence did not support the prosecution version particularly on the point of the the of the departure of the deceased and that of his death.
(6) that in any event it was not a fit case for confirmation of death sentence.
9. While elaborating the first contention, the learned counsel urged four points before us. (i) In the first instance, our atten--tion was drawn to the discrepancy between the statement of Muhammad Sharif complainant and that of Abdul Ghafoor S. I., on the point of their first meeting at Muridwala where according to Muhammad Sharif he reached at about midnight and waited for the arrival of the S. I. While according to the latter he reached there at 4 a.m. When he (S. 1.) was already present there. I am not inclined to attach much importance to this discrepancy which, cannot be considered very material as the fart however stands established that both of them met at Muridwala where statement Exh. P. A. Was made by the complainant before the S. I. (ii) The next point raised in this regard was the categorical denial of Muhammad Sharif complainant in his examination-in---chief that the statement was read-over to him or that he thumb---marked it. I am not inclined to attach much importance to this either for the simple reason that the complainant added in the same breath that the statement Exh. P. A. Which was read out to him in Court was the. Same which he made before the Police at Muridwala and further that his thumb- impression had been obtained on a paper which was sent by the police to Mamunkanjan Police Station. Earlier denial can, therefore, be safely attributed to a lapse of memory as he appeared in Court more than a year after the occurrence. (i.e) The third point urged in this regard was the omission on the part of the Sub-Inspector to prepare a recovery memo regarding the to sealed phials containing swa bs sent to him by the doctor through F. C. Muhammad Sarwar, as frankly admitted by him in cross-examination. F. C. Muhammad Sarwar P. W. 8 stated having handed-over to sealed phials to the S. I. Along with the kurta of the deceased which were made over to hint by the doctor at the the of the post-mortem examina--tion. The relevant recovery memo, Exh. P. G is confined only to the recovery of shirt P. 4 and makes no mention of the to phials which appear to have been inadvertantly mentioned by the doctor as "one sealed bottle containing swabs". The Chemical Examiner's report Exh. P. K. Refers to the receipt of a packet through F. C. Ata Muhammad P. W. 7 sent by the Medical Officer Kamalia. In his statement F. C. Ata Muhammad P. W. 7 referred to the receipt of three sealed- parcels from Abdul Qadir Muharrir F. C. And their onward transmission to the office of the Chemical Examiner, Lahore after obtaining the necessary docket from the S. P.'s Office, Lahore. I do not consider this omission of preparing a recovery memo regarding the phials to be of much consequence as there is not the slightest indication of any substitu--tion or tampering with them which appear to have remained intact throughout. (iv) The last point urged in this regard was the confusion about the identity of chadar of the deceased Exh. P. 1 which according to the S. I. Had been taken into possession by him from the spot, vide memo. Exh. P. B., soon after his arrival, but on the contrary was handed-over by the doctor as being the same which he had made-over to the police at the the of post--mortem examination. I am not inclined to think that unless the Sub-Inspector had himself considered it necessary to send the chadar P. 1 to the doctor after it was recovered by him from the spot, the same could have reached the doctor. The S. I. Denied having done so when it was specifically suggested to him during cross-examination.
Coincidently, the Chadar in which the dead body was wrapped, when it was sent to the doctor, was one of green colour soiled with faecal matter. According to the doctor, faeces was still coming out of the anus. In all probability, after the S. I. Had taken into possession chadar P. 1, the dead body was wrapped in another chadar which also happened to be of green colour. But assuming the S. I.
Had sent the same chadar to the doctor wrapping it around the dead body it was not at all necessary for him to advance the the of the recovery memo. Exh. P. B. The fact that the recovery memo. Exh. P. G. Was confined only to the shirt of the deceased would further suggest that the green chadar seen by the doctor was another chadar and not the same which was recovered by the S. I. Strangely enough, in his cross-examination, the doctor referred to having made over yet another chadar to the police and when shown chadar Exh. P. 3 purported to have been recovered at the instance of the appellant, stated that it was not the other chadar which he had handed-over to the police. The only plausible explanation of it seems to be that, perhaps, yet another chadar had been placed over the dead body in addition to. The one in which it was wrapped. As a result of the above discussion, I am not convinced that there has been any such forgery or fabrication during the investigation.
10. This brings me to the more important contention regard--ing the reliability of the three Wajtakar witnesses. I have no hesitation in saying that on a careful analysis of the statements of these witnesses, I have not' been impressed by any one of them. It may be observed at the outset that three of them, namely, Abdul Hamid of Chak No. 242/G. B Muhammad Iqbal of Chak No. 187/G. B.
And Abdul Razzaq of Chak No. 254/G. B., though residents of different villages, are all Arains by caste having at least tribal affiliations with the complainant and the deceased, if nothing more. I have already referred to similar affiliation between Nur Ahmad and Wali Muhammad P. Ws., who resiled from their statements before the C. M., and Murad Lambardar, who was given up as having been won-over, all Gadhi Baluchs by caste, being the kinsmen of the appellant, presumably having been won-over by him. Normally, such a loose bond as a mere tribal connection, would not be very material except in some peculiar circumstances which are not wanting in the instant case. It cannot be denied that they were all chance witnesses, having coincidently met the deceased and the appellant, if at all they did, on the fateful day. No doubt chance do take place in life, but they, cannot be straightaway believed unless corroborative circumstances are available to support their happening (i) Taking first the case of Abdul Hamid P. W. 14, the most significant point to be noticed in this regard is his frank admission before the Committing Magistrate that the deceased was the son of Mst. Sharifan, who was the sister of his wife Mst. Naziran, which relationship he was at pains to suppress at the trial in view of its effect on the evidentiary value of his testimony. It may be observed in this context that Nur Ahmad P. W. 4, the complainant landlord who appears to have intimately known the complainant's relationship in the area, categorically stated during cross- examination that Abdul Hamid is also the first cousin of Muhammad Sharif complainant, being the son of his real uncle Muhammad Bakhsh. In fact, his denial of this admitted relationship at the trial is, in my view, sufficient to render his testimony completely devoid of all credibility. Once this relationship is admitted, and there appears to be no reason to the contrary, his conduct of having crossed the deceased in the company of Nausher appellant, whose first cousins had murdered the father of Akbar Ali only 4/5 years earlier, without having talked to him particularly finding him in the strange and undesirable company of an enemy, who within their sight took him to a nearby cotton crop, which should normally have aroused grave suspicions in his mind, is simply incomprehensible. This is not all. The specific errand on which he had set of on the fateful morning in the company of his friend Iqbal P. W. Was to purchase a buffalo in Chak No. 185/G. B. The buffalo gave birth to a calf and they spent the night at the bheni of Nur Ahmad P. W. In close proximity to the bheni of Sharif complainant which under the normal expectations would have been a more attractive place for him to spend the night having come all the way from a distance of 12 miles from his village. He not only preferred to stay in the neighbouring bheni of Nur Ahmad, but does not care to contract his sister-in-law Sharifan, the mother of the deceased, or her children. What is more surprising is that he does not learn about the death of Akbar Ali till about the following morn- -ing at 6/7 a.m. He stated that he had shown the receipt of the buffalo to the Thanedar who did not- take it into possession but was belied by the' S. I. In this. The calf and buffalo story thus appears to us nothing but a cock and bull story fabricated merely to justify the presence of this procured witnesses. (ii) Much of the criticism of the statement of Abdul Hamid would equally apply to that of Muhammad Iqbal P. W. Nur Ahmad P. W. 4 had stated in cross-examination that one of the sisters of Muhammad Sharif complainant was the wife of Muhammad Iqbal P. W. This relationship, though specifically put to him, was denied by him. In view of my finding that Nur Ahmad P. W. Was deliberately trying to help the defence, it could, perhaps; be argued that the relationship of the P. Ws. Given by him should not be readily believed. The persistence with which the relationship was put to all the P. Ws. Without exception, coupled with the deliberate suppression of relationship by Abdul Hamid, P. W. Would strongly suggest to the contrary ; but even otherwise his statement does not impress us for more than one reason. He did not state either before the police or before the C. M. That he and Abdul Hamid had stayed at the bheni of Nur Ahmad with one Ranjah and obviously made an improvement with which he was duly confronted. Though claiming to have intimately known Nausher appellant, he could not give the names of any of his brothers uncles. He did not state before the police that they had struck the bargain with Ghulam Joku of Chak No. 185, as elaborated by him at the trial. Strangely enough, he could not say whether the calf born to the buffalo was a male or a female. He admitted Abdul Hamid P. W. To be his friend who used to purchase animals through him. He stated in cross-examination. I do not now remember how many cattle I have helped him in purchasing. I do not remember from which village I helped him in purchasing different cattle. I do not remember the names of persons from whom he purchased cattle with my help. I helped him in purchasing about fifty animals. The three denials and the one assertion show the hollowness of his statement. According to him, the paper for writing of the receipt was provided by: them whereas according to Abdul Hamid the Lambardar provided the paper for the writing of the receipt. He further stated that he and Abdul Hamid P. W. Learnt of the murder on the following morning when they went to the spot and saw the dead body. He added that they appeared before the police on the day next following in the village school at dopeharwela. He was given a complete lie by the Sub-Inspector in this regard who stated that soon after his arrival at the spot, he recorded the statements of Abdul Hamid, Muhammad Iqbal and Abdul Razzaq etc. Lastly, it may be observed about him that he is equally a chance witness.
(i.e) Coming now to the third Wajtakar witness Abdul Razzaq P. W. 16 he claimed to have seen the appellant emerging from the cotton crop and walking towards him when he himself was going from his village Chak No. 254/G. B. To 185/G. B. On one of his routine trips as a hawker for selling cloth which he carried on his cycle. Although claiming to have known him previously, he had no talk with him and went his own way. His village is at a distance of 2-- miles from the place of murder.
Towards evening, he returned to his village. It was on the next morning that during his visit of Chak No. 185/G. B., he learnt about the murder. He stated that he had made .a statement before -the police on 2-10-1967. He did not happen to meet anybody on the way on 29-9-1967, when he proceeded from Chak No. 254 to Chak No. 185. He denied that Sharif P. W. Was his paternal cousin.
According to Nur Ahmad P. W. 4, Ghulam Muhammad,' father of Abdul Razzaq, was a brother of Nur Din father of Sharif P. W. Besides the fact that he was also a chance witness, it cannot be said with any amount of certainty that Nausher appellant was definitely known to him prior for the occurrence: The upshot of the dis--cussion, therefore, is that we are not convinced that the three Wajtakar witnesses are truthful witnesses who had actually seen the appellant and the deceased at the relevant the, as they would have us believe ; as their statements are bristling with doubtful circumstances pointing to be contrary. I would not be surprised if they were procured to make false statements in support of the prosecution case. I would not, therefore, consider it safe to rely on their testimony.
11. Coming next to the evidence of extra-judicial confession, it may be observed that I have not been able to avoid an impression of a deliberate volte-face on the part of Nur Ahmad P: W. 4, who is the solitary witness on this point, owing to his tribal affiliations. Having reiterated in his examination-m-chief what he had earlier stated before the C. M. Regarding the appel--lant's visit to him at the dera of Muhammad Murad Lambardar of Chak No. 184/G. B. And having confessed the commission of sodomy on the deceased "who had died in his cross-examination, he made a complete volte-face by admitting that at the the of his, so-called confession the appellant was in handcuffs in the custody of the police and that he, questioned him at the instance of the Sub- Inspector. No doubt,' there are indications of existence of previous bad blood between the family of the appellant and that of this witness, yet I am inclined to think that the departure made by him in cross-examination deliberate and calculated with a view to help the appellant. While allowed to be cross-examined by -the A. P. P., this witness denied that the appellant had come to him on the 30th of September 1967; or that he (the witness) had appeared before, the police on 1-10-1957 and then made a statement. He denied that he had stated before the C. M. That the appellant had come to him at the dera of Murad in Chak No. 184/G. B. Earlier, he had admitted in cross-examination by the defence counsel that the first cousins of Nausher appellant were challaned for the murder of Ghulam Qadir, father of Akbar Ali deceased, about four or five years prior to the occurrence. He was duly confronted by the A. P. P. With all the improvements made by him on his statement before the Committing Magistrate, which was transferred to the Sessions file under section 288, Cr. P. C. A legitimate criticism of such a witness, who makes inconsistent statements, is that it is not safe to rely on him as a truthful witness. No doubt in certain cases, where witnesses have deliberately resiled from their previous statements for palpable reasons, the Courts having regard to other concomitant circumstances have sometime placed reliance on their earlier state meets, if such an inference may be justifiably warranted therefrom. In the instant case, even if it is assumed that the statement made by him before the C. M. Or reiterated in the examination-in-chief was correct and the subsequent elaboration is excluded from consideration, being the result of a deliberate attempt to help the appellant, I do not find this evidence of much intrinsic value. It appears to me that to start with this witness, being the landlord of the complainant, had all his sympathies with him and as such was cited as a prosecution witness before he was successfully tackled by the appellant at the trial stage. In the first instance, he stated before the C. M. That the appellant came to him in his village at 8 p.m. In his examination-in-chief, he shifted the rendezvous to the dera of Murad Khan in Chak No. 184. It was suggested to him in cross-examination that a pre-emption suit was pending between his uncle and Sikandar Khan, the uncle of the appellant, but the suggestion was denied at that the though admitted at the trial when he stated, that he himself had litigation over land with Sikandar Khan, uncle of the appellant, and the case was pending in the Court of Civil Judge, Toba Tek Singh. But even if these discrepancies are excluded from consideration, the evidence of confession does not carry conviction for more than one reason. In the first instance, it would be highly unlikely that the appellant could have gone to this witness to seek his good offices in the matter when there are clear indications of previous bad blood between them. Secondly, the statement made by him before the Committing Magistrate besides the change of venue is much to laconic to be treated as a genuine confession. While placing reliance on such an extra---judicial confession, the Courts have emphasised the use of utmost care and caution in this country as held in, Ahmad v. Crown (PLD 1951 FC 107). In Abdul Latif v. The Crown (1952 FC R 116) although their Lordships were dealing with the evidence of extra-judicial as the sole evidence available to the prosecution, yet the following observations being relevant may be advantageously reproduced :- "Where the sole evidence for the prosecution consists of an extra-judicial confession, and there are circumstances appearing from the case which tend to show that such a confession was unlikely to be made and had not, in fact, been made, the rule of prudence requires that the Court should not at on such a confession for the purpose of convicting the alleged maker, unless it is corroborated from independent sources in material particulars."
In the same judgment it was held by their Lordships that where an extra judicial confession is relied upon there should be some corroborative evidence to the effect that the alleged confession was not only made but was also voluntary and true. Thus, a three-fold proof is required to make such a confession the basis of conviction. Firstly, that in fact it was made. Secondly, that it was voluntarily made and thirdly that it was truly made. In view of the above criteria and requirements. I have no hesitation in saying that it would be highly unsafe to rely in this case on the evidence of extra- judicial confession unless a strong and independent corroboration is available. Which is certainly wanting here:
12. This brings me to the evidence of recovery of loin cloth P. 3, effected vide memo. Exh. P. G.
Attested by Muhammad Sharif complainant, Sher Muhammad P. W. 10 and Wali Muhammad P. W.
11. According to the S. I., the appellant was produced before him by Muhammad Murad Lambardar (who did not enter the witness-box) at 2 p.m. On 2-10-1967 in the school building of Chak No. 184 and offered to lead to the recovery of chadar P.
3. He precisely stated as follows :- "On interrogation, Nausher accused said that he had kept his chadar in bhoosa in his house and could1ead to its recovery. Again said that the bhoosa was in square No. 12 Killa No. (6)."
I find it difficult to accept, as the Sub-Inspector would have us believe, that he had no other witness available with him except the above-mentioned persons, at the the when he started for the place of recovery. We have already referred to the confession made by Wali Muhammad P. W. 11, one of the witnesses of recovery. In his examination-in-chief he stated at the trial that Nausher got recovered a chadar from Dhari of Salabat on the next day of the recovery of blood-stained earth.
This obviously does not fit in with the rest of the evidence for the simple reason that the blood- stained earth was recovered on the 30th of September whereas the recovery of chadar at the instance of the appellant took place on the 2nd of October. He denied that the stack of bhoosa was in Killa No. 6 of square No. 12 and added that it was in the Dhari and not in the lands. His statement before the Committing Magistrate was transferred to the Sessions file under section 288, Cr. P: C. At the request of the A: P. P. Who was allowed to cross-examine him. A perusal of this statement shows that the recovery was made from the dera of the accused and not from Killa No. 6 of square No. 12, as stated in the recovery memo. It appears that even at the inquiry stage, the attitude of this witness had been considerably softened towards the appellant as he categorically admitted in cross-examination that his brother Lashkar was convicted for a theft committed in the house of the father of Nausher appellant. Evidently, no reliance could be placed on the statement of such a witness who has been shifting ground and has been clearly found to be amenable to influence.
This brings me to Sher Muhammad, the last witness of recovery, who supported the prosecution case in that the recovery had been made at the instance of' the appellant from the stack of bhoosa. He is a resident of a different village Chak No. 187/G. B., from where Iqbal P. W. Also hailed.
He had admitted before the Committing Magistrate that he was a Mistri on the tubewell of Iqbal P.
W., though tried to suppress this fact at the trial. This would clearly indicate that he was under the influence of Iqbal, who could not impress us as a truth--full witness, as discussed earlier. He stated that there were- some blood-stains. On the chadar in which he is belied by the Chemical Examiner's report. He stated that he had gone to Chak No: 184, three days after the murder, with no special purpose. He stated in the first instance that the place of recovery was towards the East of Chak No. 184/G. B., but then stated that it was towards the, West of Chak No.- 184/G. B. He is admittedly a Mistri and, as such, not a man of much consequence and was obviously under the influence of Iqbal, and in all probability procured through his good offices: From the above discussion, it is clear that the evidence of recovery is not quite convincing, but even otherwise even if it is assumed that the recovery was made at the instance of the appellant, there is hardly anything to connect him with chadar P. 3 at or about the relevant the or that it belonged to him. An important link is, therefore, missing in this regard and the recovery, even if believed, does not directly connect the appellant with the commission of the crime, leaving ample room for doubt. In answer to a suggestion it was admitted by the Sub-Inspector that he had also questioned during investigation Gulsher son of Jehan Khan, from whose crop the dead' body was recovered, which would also cast some doubt on the criminality of the appellant. .
13. I next come to the question of abscondence which has also been taken into consideration by the trial Court as a relevant circumstance lending support to the prosecution version. No doubt the Sub-Inspector stated that he searched for Nausher on the 30th of September but he was not available. He further added that he searched for him till the 2nd of October 1967, when he was produced before him by Muhammad Murad Lambardar. In the first instance, the failure of the police to lay hands on the appellant for to days would not per se be good enough to justify an inference of abscondence. Even otherwise, quite an innocent person, suspected of such a serious offence might try to be evasive being afraid of torture` and use of third degree methods by the police. The Sub-Inspector was not specifically questioned by the prosecutor as to how, when and where did he look for the appel--lant and, as such, a mere vague assertion of this kind would not, in my opinion, be good enough to justify an inference could be raised against the appellant; in view of the foregoing discussion, this would hardly be sufficient to boost up the tottering structure of the prosecution case.
14. The upshot of the discussion, therefore, is that I am not convinced that the offences under section 377 or 302, P. P. C. Were fully brought home to the appellant in satisfaction of the legal requirements and in accordance with the well-established principles of the Administration of criminal justice. The case is not free from doubt and the appellant is entitled to its benefit. I, therefore, allow the appeal, set aside the conviction and sentences and direct that the appellant be released forthwith, if not required in any other case.
MUHAMMAD AFZAL ZULLAH, J.-I have had the advantage of reading the judgment proposed to be delivered by my learned brother Muhammad Afzal Cheema, J. I agree that no implicit reliance can be placed on the statements of Abdul Hameed and Muhammad Iqbal P. Ws. Because of many inherent weaknesses pointed out by my Lord. But at the same the I am of the view that the concessions qua these witnesses made by Noor Ahmad and Wali Muhammad P. Ws., who obviously have tried to damage the prosecution case to help the appellant, would not, by them-- selves have affected those statements. I also agree with my Lord that Noor Ahmad P. W. Who is related to the appellant and at any rate is his caste fellow, did in fact support the prosecution case without any reservation, up to the commitment stage ; but subsequently due to the motive other than that of telling the truth supported the appellant at the trial. But, in my view this fact should not deter the Court from critically examining the statement made by him before the committing Magistrate (transferred under section 288, Cr. P. C.) in respect of extra-judicial confession, on its own merits and, if found true, to at upon it. I am further in agreement with my Lord on the questions of the bona -fide of the investigation ; the so-called conflict of medical evidence with the prosecution case ; and also on the question of the age of the appellant. But I respectfully disagree on the questions of the credibility-of Abdul Razzaq P. W. The recovery of the chador (Exh. P. 3) from the appellant ; his abscondence ; and the extra---judicial confession made by him before Noor Ahmad P. W. The effect of which, according to me. Is that the conviction of the appellant was fully justified. I proceed to give my reasons.
2. It has been admitted by Ghulam Nabi P. W. Au uncle of the deceased, that Ghulam Qadir, the latter's father was murdered about 8 or 9 years ago in a fight with Gadhi Balochs of Chak No. 185/G.
B. "who were from the bratheri of Nausher accused" but not his relations. Leaving aside the statement of Noor Ahmad P. W. At the trial which is not reliable, there is no other evidence to show that the murderers of Ghulam Qadir were closely related to the appellant. It is in evidence that the com--plainant-party who are Arains are the tenants in a village, the, proprietors of which are Gadhi Balochs the (bratheri of the appellant). In spite of this the complainant Muhammad Sharif did not try to involve anybody from Gadhi Balochs even as a suspect, in the F. I. R., which was made on the morning next after the occurrence. The dead body was found in the field of Jahan, another Gadhi Baloch whose son Gulsher was questioned by the Police (cross-examination of Abdul Ghafoor, S. I.) during the investigation, presumably for eliciting some relevant informa--tion. Before the disclosure of the name of the appellant by the witnesses at about noon the on the 30th it was natural rather necessary for the Sub-Inspector to have questioned the owners of the land. It is significant that neither anyone involved in the murder of Ghulam Qadir nor Jahan and his 'sons have been involved in this case. Therefore, the consideration of various point involved in this case will not proceed on a priori supposition that there in likelihood of an intentional false implication whether on the part of the complainant party or the police.
3. Noor Ahmad P. W. Stated before the committing Magistrate that the appellant had gone to him and had confessed that he committed carnal intercourse with Akbar Ali and further that while committing sodomy he strangulated the deceased. On this account, the appellant asked the witness to help him but he "flatly refused". In cross-examination he denied the suggestion that a pre-emption suit was pending between his uncle and Sikandar Khan, an uncle of the appellant. He admitted that Muhammad Khan is his uncle and he (the witness) had sold square No. 58 in Chak No. 186. No more questions were asked in cross-examination at that stage. By the the the witness appeared at the trial, he had been won over by the defence, and he tried to damage the prosecution case by making various concessions. The learned trial Judge held that the witness did not tell the truth at the trial and tried to damage the prosecution case by making various concessions. My Lord is also of the same view and I concur in that.
Noor Ahmad P. W. Made four major concessions to the defence in his examination at the trial : -
(a) that he had enmity with the appellant. This obviously cannot be true because he had earlier denied even an indirect enmity at the commitment stage.
(b) that the murderers of the father of the deceased were the first cousins of the appellant.
This also is incorrect because he had not made any such statement before the committing Magistrate, and further this statement is not supported by any other evidence except that those persons belonged to his bratheri. The appellant himself did not make any such statement at the trial.
(c) That Abdul Hameed and Abdul Razzaq, P. Ws. Are -the first cousins of Muhammad Sharif, the complainant ; and further that the sister of Muhammad Sharif is the wife of Iqbal P. W.
This statement also is not supported by any other evidence. Abdul Hameed P. W. Is related to the complainant ; but the relationship is different from that deposed to by this witness. Sharif and Razzaq P. Ws. Have categorically denied that Ghulam Muhammad and Muhammad Bakhsh were the brothers of Noor Din father of Sharif P. W. Sharif P. W. Asserted that Noor Din had only one brother named Fateh Muhammad ; and Razzaq P. W. Asserted that his father Ghulam Muhammad had no other brother. These confident averments were not challenged by further questioning or by adducing independent and reliable material which could also include documentary evidence. It is also important to note that in answer to question by the learned Public Prosecutor, Noor Ahmad was unable to give the father's name of Noor Din. Therefore, I hold that Noor Ahmad told lies on the point of relationship as well.
(d) That the confession was made by the appellant on 2nd October 1967, when he was in custody of the police and that it was at the dera of Muhammad Nawaz that the Thanedar asked him (the witness) to question the appellant and it was in these circumstances that the latter confessed his guilt.
This statement also is obviously incorrect ; because it runs counter to what the witness stated before the Committing Magistrate about which he, on cross-examination by the Public Prosecutor admitted that, in fact, the appellant had gone to him (the witness). But the more important circumstance which belies the statement made by him at the trial is what he stated in answer to a question by Court, viz., "No one was present with me when Nausher talked to me about it. I came away from the dera of Muhammad Murad Khan leaving Nausher there". If the appellant was in custody, obviously one Foot Constable would have been present at the dera of Muhammad Murad when the alleged talk took place ; and further supposing that even the Constable was removed at the the of the alleged talk at the dera of Muhammad Murad and the appellant was handed over in handcuffs to this witness, it is inconceivable to believe that after the talk he would have left the appellant alone at that place (dera of Muhammad Murad).
The reading of the entire statement of this witness, i.e., his examination-in-chief, cross-examination by the defence and the learned Public Prosecutor, gives a clear impression that the witness, out of motive to help the appellant, tried to make con--cessions to damage the prosecution case. That is why the above parts (in particular) of the statement that he made do not inspire confidence and are otherwise not supported by circumstances. Therefore, agreeing with the learned trial Judge, I discard his statement at the trial. The earlier statement made by him before the committing Magistrate is, however; free from such defects of an influenced mind.
4. The next question arises as to whether the witness made a true statement before the committing Magistrate. The fact that both the parties are connected with this witness, one by kinship and the other by the relationship of landlord and. Tenant, has not been denied. It was quite natural that if the appellant wanted somebody to intercede on his behalf, this witness was the best person.
Therefore, there is nothing unnatural in the appellant, after having known that he had been named, having gone to this witness to seek help. The murder being gruesome and of an innocent child, it is obvious that at that the when the matter was fresh, conscience forced the witness not to help the appellant; and that is also the reason why be must have resisted pressures from his bratheri and he deposed as he did before the committing Magistrate.
I am conscious of the fact that the statement relating to con--fession made by him before the committing Magistrate is very brief. As a first impression, it gives rise to a suspicion that it might not be true 'because no details are given ; but on proper analysis, it becomes clear that the subject- matter which was being disclosed by the appellant to the witness (the latter from his bratheri) was not such which merited any detailed disclosures. What I mean is that he could not have given the details of the at of sodomy nor the details of his reasons for having murdered the child: In the circumstances, he must have made a brief statement to the witness, and the one deposed to by him before the, committing Magistrate appears to be quite natural. Therefore, I am of the view that the statement of the witness before the committing Magistrate represents the truth.
I am also conscious that statement transferred under section 288, Cr. P. C., of a person, who has tried to help an accused by making false statements at the trial, should not be readily accepted as true. But as analysed above, I am satisfied that it will not be unsafe to at on that statement. The Supreme Court, in a recent case Muhammad Ahmad alias Mahanda v. The State (PLD1970SC72) has held :--- "Thereis no rule of law and none need be imported, that while such a statement is believed to be trustworthy and honest it must still require corroboration to make it acceptable to be relied upon.
However, as a rule of prudence, the superior Courts in this country have laid down from the to the that since a witness who makes one statement before a committing Court and conveniently changes it at the trial stands self-condemned as a liar, his former statement transferred under section 288, Cr. P. C., cannot be unreservedly accepted with implicit faith and hence the need for its corroboration by some independent source. Each case, however, has to be decided on its own facts and each statement transferred in a case under section 288, Cr. P. C. Has to be adjudged on its own merits in the context of all the circumstances of the crime. In the present case, we find that P. W. Nur Ahmad who lodged the first information report charging the appellant, for the murder of his wife and who supported the charge before the committing Court, did not have any reason to falsely implicate his real brother."
The above observations fully apply to the present case. With regard to corroboration, as I discuss the remaining evidence, it will be found, there is ample of it in this case.
5. It has been clarified above that the relationship deposed to by Noor Ahmad P. W. About Abdul Hameed, Muhammad Iqbal and Abdul Razzaq P. Ws.-is not a statement of truth. However, there are stronger reasons, particularly those connected with their conduct, for not relying on the statements made by Abdul Hameed and Muhammad Iqbal P. Ws. And in this, 3 respectfully concur in the view taken by my Lord. But the statement made by Abdul Razzaq P. W. Who, I am certain, is not related to the com--plainant-party except that he is also an Arain, is not only free from any infirmities but is also natural and straightforward. He belongs to a village about to and a half miles away from the place of occurrence. It has not been seriously contested that he is, in fact, a hawker and sells cloth by going to various Chaks including Nos. 184, 185, 259 which are in the vicinity. He claims to have seen the appellant at the place where the dead body was found at about the same the when the death appears to have occurred. He (the witness) was on his normal usual round of the villages and was going on a path in the area of Chak No. 184 and was pro--ceeding towards Chak No. 185.
The fact that the path indicated by him runs near the place of occurrence cannot be denied and is also supported by the site plan (Exh. P. J.) which shows w the relevant place, a pakdanddi about half a karam wide. This site plan has been properly proved by Lal Din Patwari and also by the Sub- Inspector. It was suggested to the witness that there is also an alternative route which .He could follow ; but he explained that "there is much .Sand on it and it is not used for bicycle". This is a sound explanation, particularly when one visualises that the witness has to go hawking in several Chaks on a bicycle with a load of cloth on it. Therefore, there is nothing improbable or unusual in his having passed the place of occurrence at the the that he deposed he did. In these circumstances, it is not possible to hold that he is merely a chance witness. Strictly speaking, he does fall within the generally accepted definition of a chance witness ; because, according to the evidence, he being a hawker of the area, it was normal and usual for him to have passed near the place of occurrence. It all depends upon the circumstances of each case whether or not a particular witness is a chance witness. Their Lordships of the Supreme Court, in the case of Ghulam Muhammad v. Muhammad Sharif and another (PLD 1969 SC 398) held that a passerby on a public road is a natural witness. Similar views were expressed by this Court in the case of Zulfiqar Hussain Shah v. State Cr. A. No. 773/68/M. R. No. 229/68, decided on 15th October 1969.
So far as the identification of the appellant by the witness is concerned, the latter has stood the test of cross-examination ; wherein he stated that he did not know the name of the brother of the appellant as he was a young child, and further that he had forgotten the name of his paternal uncle. There is nothing unnatural in it. Earlier in examination-in-chief, he had stated that he knew the appellant because he saw him many times on his visits to the latter's village, in connection with the sale of cloth. Again in cross-examinations, the witness made a definite statement that he even knew the house of Nausher appellant, though he had not seen his dhari. The cross-examiner did not pursue the matter any further (for testing the correctness of this statement), by putting him questions with regard to the location of the house of the appellant. Therefore, I am satisfied that the witness knew the appellant, (then aged 19,) before the occurrence.
The learned counsel argued that it was only a fleeting observa--tion that the witness is claimed to have made at the the of occurrence and that it was not possible for him to have recognised the appellant at a distance of about one killa. It was day the and if the appellant was known to the witness, .The identification was clearly possible. And if that is so, the witness would have remembered and recollected, at the the that he appeared before the police or when he learnt about the murder, the face and the person he saw ; because he appeared before the police on the very next day at dupehrwela (Examination-in-chief).
It appears that the witness was required by the police to point out certain places in connection with his statement and it was due to that reasons that he was summoned several times and was made to recollect or repeat what he had seen or stated earlier, particularly, before the higher police authorities who went on the spot to verify the investigation. A major portion of the cross-- examination 'on this witness relates to this aspect of his evidence. And it is in this connection that he stated that he went to the place of occurrence after the arrest of the appellant and pointed out the relevant places on 2nd October 1967, and further that he did not know whether or not the police recorded his statement on that day ; though he did make his statement before the police on that day also. A capital was sought to be made from the above, in that the witness appeared before the police for the first the on 2nd October 1967 ; therefore, much reliance cannot be placed upon him.
As explained above, the witness had clearly stated that he went to Chak No. 184/G. B. On the next morning of the occurrence and on that very day appeared before the police at dupehrwela and made his statement. And it was his subsequent (second or third) statement before the police which was obviously being referred to in the cross-examination. It is pertinent to note that it is also in the cross-examination that during the investiga--tion the witness was called from his house on to occasions subsequent to his initial appearance before the police. He, however, stated that for the first the he went to the police on his own to make a statement in this case, and that on that occasion be was not summoned by the police.
I have already held that this witness has no relationship with the complainant-party ; though Noor Ahmad p. W. Has made a vain effort to show that the relationship existed. He had no interest to falsely implicate the appellant nor had he any undue interest in the complainant-party. It is significant that in cross--examination the witness categorically stated that at the the that he saw the appellant at the place of occurrence, he did not see anybody around that field, nor did he see anyone else going on the path on which he himself was going. From the entire statement, it appears that the witness in an intelligent person ; and by making this statement he must have fully known that in this, he was excluding the presence of to other witnesses, i.e., Muhammad Iqbal and Abdul Hameed, near the spot at or about the the of occurrence. This would further show that he is not the type of a prosecution witness who would unnecessarily support the pro--secution case on a point, even if it was not true. As already noticed, the statement produces an effect of honesty and straight--forwardness. It is pertinent to note that he, in the concluding portion of cross- examination, made a definite statement that his father Ghulam Muhammad had no brother and that Sharif P. W. Was not related to him, though he was an Arain. Earlier he had stated that Akbar Ali deceased was not Arain ; but he immediately corrected himself and stated that by the the that he appeared as a witness, he had known that the deceased was an Arain ; but be was not from his bralheri. Sharif P. W. Has also denied the relationship with Razzaq P. W. And in cross-examination stated that Ghulam Muhammad was not the brother of his father. It will not be out of place to notice here that this witness had also impressed, as a true witness, the, learned trial Judge who had the opportunity of seeing him. The following observation in this behalf, in paragraph 16 of the judgment is very relevant :- "The natural way in which Abdur Razzaq P. W. 16 made a statement leaves no room for doubt about the veracity of his statement. He claimed to be hawker of cloth. This claim has not been challenged by way of cross-examination. As such he had an occasion to pass by the cotton crop on his routine mission of hawking and could, therefore, see the accused coming out of the crop."
Considering all these circumstances, I am of the view that this witness has made a true statement ; which cannot be discarded simply because Noor Ahmad P. W. Whose conduct at the trial cannot but be condemned, tried to damage the prosecution case qua the deposition of Razzaq P. W. By conceding to the defence, though without any foundation, that he (Razzaq P. W.) was cousin of Sharif P. W.
The effect of the statement of this witness, i.e., Razzaq P. W. Need not be discussed in any detail. He saw the appellant at about the the Akbar Ali died. The place of occurrence not being in dispute, the fact that the witness saw the appellant, almost at that moment of the, rising from the cotton crop at the place of the dead body and then proceeding towards the path, is very relevant and points towards his guilt ; unless, of course, he is able to explain, these circumstances satisfactorily which is not the case.
6. The next piece of evidence to be considered is that of the recovery of chadar (Exh. P. 3) at the instance of the appellant which was found to have been stained with semen and faeces. Three witnesses have appeared to prove this recovery. They are Sher Muhammad (P. W. 10), Wali Muhammad (P. W. 11) and Abdul Ghafoor, S. I. (P. W. 17).
Wali Muhammad made concessions in favour of the defence and was cross-examined by the Public Prosecutor. His statement before the committing Magistrate was also transferred to the Sessions file under section 288, Cr. P. C. He belongs to the family of the appellant and admitted in this behalf that their "forefather was the same." He is the first cousin of Noor Ahmad P. W. And Muhammad Murad Lambardar, a given-up P. W. Is his paternal aunt's son. He like Noor Ahmad P. W.
Appears to have been won over by the defence. So has been held by my Lord and also by the learned trial Judge. There are no reasons to differ with this assessment. It is not necessary to give separate detailed reasons in this behalf. I am, however, of the impression that this witness, probably in an effort to help the appellant, had tried to give before the C. M. a different version about the recovery from what is contained in the memo. (Exh. P. E.); which was, admittedly, thumb- marked by him. The treatment of his statement before the committing Magistrate, therefore, will have to be different from that of Noor Ahmad P. W. He mentioned before the committing Magistrate the recovery of the chadar as having been effected from the dera of the appellant ; while according to his statement at the trial, it was recovered from the dhari of his father. Both these versions are in direct contradiction of what is contained in Exh. P. E. Viz. That the chadar was recovered from inside the stack of bhoosa. He has not given any the or date of recovery in his statement before the committing Magistrate, while that given by him at the trial is negatived by the aforesaid memo. (Exh. P. E.). For all these reasons, I am of the view that there is no question of relying on his statement at the trial ; and it will not be safe to rely on his statement before the committing Magistrate because, as noted above, he appears to have made a departure from the recovery memo. Even at that stage. Therefore, I will exclude his statement from consideration.
There is no infirmity in the statement made by Abdul Ghafoor S. I. (P. W.) about this recovery. The appellant was arrested on 2nd October 1967 and on the same day he led to this recovery. Sher Muhammad P.W. Has also supported this statement. It is in cross-examination of Wali Muhammad P. W. That the wife of his brother Lashkar is the sister of Sher Muhammad P. W. Thus he (Sher Muhammad) is also related to the appellant and would have sympathy for him rather than for the complainant. His statement has been criticised by the learned counsel on the grounds ; that he belonged to a village about one and a half miles away from Chak No: 184 ; and that, according to his statement before the committing Magistrate, he had admitted that he worked as a Mistri on the tubewell of Iqbal P. W. No doubt, the occurrence took place in a field in the area of a different Chak, but it cannot be said that the persons belonging to the surrounding villages including Chak No. 187, to which this witness belonged, were outsiders to the place of occurrence. Therefore, the criticism that Sher Muhammad P. W. Did not belong to the locality is not justified. This objection loses all force, when looked at from another angle, viz., the proprietary body of the check in question are Gadhi Balochs. Muhammad Murad P. W. a Lambardar who is also a Gadhi Baloch, was cited as a P.
W. But for obvious reasons was not examined at the trial. The fact that Sher Muhammad worked as a Mistri with Iqbal P. W. For some the cannot discredit him. I have already held that the statement made by Noor Ahmad P. W. With regard to the relationship of Iqbal and Sharif P. Ws. Is not correct.
However, on other con--siderations, no reliance has been placed on the statement of Iqbal P. W. I do not agree that he, in any way, is either related to the deceased or is interested in falsely implicating the appellant. Thus the temporary connection of Sher Muhammad with Iqbal P. W.
Cannot adversely affect his (Sher Muhammad) statement.
In the case of Muhammad Ahmad already cited above, their Lordships of the Supreme Court, in similar circumstances where the recovery witnesses had been won over by the accused, relied on the statement of the Investigating Officer and observed that there was no reason to distrust the Investigating Officer on account of the reason that the other to recovery witnesses had tried to damage the evidence of recovery by making statements in favour of the accused in their effort to shield him. The investigation in this case, it has been held by my Lord, is without any serious defect.
The appellant does not appear to have been implicated by the police for any ulterior motive.
Therefore, in this case placing full reliance on the statement of the Sub-Inspector, as supported by that of Sher Muhammad P. W. I find that the recovery of chadar (Exh. P. 3) is proved against the appellant. Sharif P. W. Has also supported this recovery and appears to have signed the memo.
(Exh. P. E.). But the learned trial Judge has not referred to his statement in this behalf and the learned Assistant Advocate-General also has not placed specific reliance on it. As such without discarding it as unreliable, I do not consider it necessary to give it any importance.
The learned counsel for the appellant argued that even if the recovery of the chadar is believed to be genuine, it does not connect the appellant with the crime. The reason advanced by him is to- fold: firstly that the appellant is a young man and the presence of semen and faeces on his chadar is not unusual ; and secondly that there is no independent evidence that this chadar belonged to the appellant or that he was wearing it at the the of, the occurrence. In my view, it was not necessary for the prosecu--tion to have led evidence about the ownership of the chadar. If the recovery is proved to have taken place at the instance of the appellant, this very circumstance remains to be explained by him. He has denied the recovery and has not even indirectly suggested that if it was recovered at his instance, it belonged to somebody else ; or that his knowledge about it was innocent. It is true that the presence of semen on the chadar, by itself, would not have made the recovery, necessarily, inculpatory. But the facts ; that the chadar was stained not only .With semen but also with faeces and further that it was found to a concealed position in a stack of bhoosa, of which the appellant would be held to have special knowledge, go a long way to show the conduct of a guilty person, so far as the appellant is concerned. I may explain that the recovery of the chadar, even though stained with semen and faeces and even though recovered from a concealed place at the instance of the appellant, would not by itself, be sufficient for conviction. It is only a piece of corroboratory evidence of material nature.
The recovery is relevant under section 8 of the Evidence Act. In illustration (e) to that section, concealment of evidence has, by itself, been considered as relevant. It is needless to further emphasise that the presence of faecal matter on the chadar is not of less importance. Normally a person would not allow it to remain on his garments. It is admitted that faeces had come out of the anus of the victim at the the or before his death. There--fore, this circumstance as well cannot be considered to be irrelevant.
I am of the view that the recovery of chadar (Exh. P. 3) stained, as it is, with semen and faeces is an inculpatory piece of evidence against the appellant ; which corroborates the extra---judicial confession made by the appellant to Noor Ahmad ; and when coupled with all other pieces of evidence in this case, becomes an important link in the entire prosecution case against the appellant.
7. The evidence about abscondence of the appellant is found in the statement of Abdul Ghafoor, S.
1. (P. W. 17). According to him, he searched for the appellant on 30th of September 1967, but he was not available. He continued this search till 2 October 1967, when on production by Muhammad Murad Lambardar the appellant was arrested. The Sub-Inspector, it appears from his statement, did not go back to the Police Station during the intervening the. I have already held that the name of the appellant was disclosed to the police at or about noon the on the 38th of September. This being a case of unnamed (in F. I. R.) culprit, it is quite obvious that a person against whom witnesses appeared to depose about extra judicial confession and "last-seen", would be very much needed by the police and a genuine search would be made so as to pursue certain the of investigation ; and further to ensure that the case being, in a way, of circumstantial evidence, no material piece of evidence is wasted by lapse of the. In these circumstances, I have absolutely no reason to doubt the statement made by the Sub-Inspector in that ; he searched for the appellant from 30th September to 2nd October 1967, and that he was not available. In answer to the question about abscondence, the appellant did not give a clear reply, either that he was available in the village or that he had gone out to some other place and had no knowledge about-the accusation.
His denial in this behalf was accompanied by the only explanation that the "police arrested me from my land". If the appellant would' have been available in the village on the 30th September it cannot be imagined that the police would not have arrested him on that very day". On the other hand, it is not the case of the defence that the appellant was taken into custody by the police at any earlier the and his arrest was wrongly shown in the papers as that of a subsequent the.
Therefore, I believe this piece of evidence also as having been proved against the appellant.
In a recent case of Gul Hassan v. The State (PLD 1969SC89) their Lordships of the Supreme Court have relied on the abscondence 'of an accused person as a corroboratory piece of evidence. The effect of abscondence in the circumstances of this case is very significant. On or about 30th September the appellant went to Noor Ahmad and asked for his help obviously because the police was already in search for him ; and this being, to some extent, a case of circumstantial evidence, he might have felt that without some intermediary he might be physically harmed by the police.
There--fore, on refusal by Noor Ahmad P. W. To help him, he spent another day to find some intermediary which he found in the person of Muhammad Murad Lambardar who ultimately produced him on 2nd October 1967. The combined effect of all these circumstances is that his abscondence wag not due to any innocent reasons. I, therefore, treat this evidence as well, as that of corroboratory value which fits in with the prosecution version.
8. Learned counsel for the appellant contended that the the of death, as disclosed in the medical evidence, does not confirm the prosecution case. It is not necessary to examine this contention in any detail. The opinion of the doctor that the probable the between death and post-mortem was about 30 to 34 hours, fits in with the the mentioned by Sharif and Razzaq P. Ws. The defence was not able to dislodge this opinion by way of cross--examination, and the facts revealed in the post- mortem examina--tion do not, in any way, contradict it. Therefore, the medical evidence also corroborates the witnesses, particularly Razzaq P. W.
9. The result of the above discussion is that apart from the motive with regard to sodomy, medical evidence and attending circumstances including the trend of investigation, there are four pieces of evidence which fully inculpate the appellant. They are extra-judicial confession, corroborated by the recovery of chadar (Exh. P. 3) and his abscondence, and the further fact that he was seen at the place of occurrence, where the dead body lay, by Abdul Razzaq P. W. At about the the that the murder took place.
In my view this evidence is strong enough to sustain the convic--tion. I, therefore, agreeing with the learned trial Judge, maintain the conviction of the appellant under sections 302 and 377, P. P. C.nd
10. It may be stated that the copy of the birth entry produced by the learned counsel (not admitted in evidence) at this stage does not relate to the appellant. We have satisfied ourselves by making due enquiry and recording evidence in this behalf. The appellant himself gave his age at the commitment stage as 19 years, and on visible observation also there is no reason to differ with this estimate. No other extenuating circumstance is available to the appellant. Therefore, the sentence of death and the other sentence, as ordered by the learned trial Judge, are maintained and confirmed. His appeal consequently is dismissed.
M. A. CHEEMA, J.-Since there has been a difference of opinion, the matter may be placed before my Lord the Chief Justice for nominating a third Judge for final decision.
QADEERUDDIN AHMAD, C. J.-In this case there is only one accused and the difference of opinion is about his guilt.
Put up this case before Mr. Justice Ataullah Sajjad for his opinion in terms of section 378, C. P. C.
M. Anwar for Appellant.
Mumtaz Hussain for A.-G. For the State.
Dates of hearing : 16th and 20th April 1970.