ABDUL RAZZAK A. THAHIM, J.-The appellants Shafique, Muhammad Rais, Mst. Asghari and Mst.
Parveen were tried for offences under sections 302/34, 20.1/34, P. P. C. By the Sessions Judge, Mirpurkhas who by judgment, dated 30th June, 1983, convicted all the appellants under section 302/34, P. P. C. And sentenced Shafique and Asghari to death while Rais and parveen to imprisonment of life. They have further been convicted under section 201/34 to suffer R. I. For 7 years.
2. Being aggrieved they all have filed appeals and at the same time there is a reference from the Sessions Judge under section 374, Cr. P. C. For confirmation of death sentence of Shafique and Mu.
Asghari.
3. We propose to dispose of the appeals and the reference by this single judgment.
4. Shortly stated, the prosecution case is that Nazar Muhammad had given an application to S. P., Tharparkar in which he stated that his boy Muhammad Ismail was resident of Satellite Town, Mirpurkhas, and one Shafique of Railway Colony used to visit his house as he had illicit intimacy with his wife Mst. Asghari. Muhammad Ismail tried to prevail upon his wife but she refused to listen to him. On the contrary, she threatened her husband. Shafique was also asked not to indulge in such ugly things but he also started threatening Muhammad Ismail. Nazar Muhammad has further stated in his application that since 5/6 months, his boy had been abducted by Shafique and Mst.
Asghari and, possibly he might have been murdered. This application was forwarded by S. P. To Inspector, C. I. A. For taking legal action. Malook Hussain Sub-Inspector C. I. A. Mirpurkhas examined Nazar 'Muhammad on 14th February, 1981 and made such entry at 12-30 p. m. In Roznamcha and sent the application to S. H.O. Town Police Station Mirpurkhas who registered the case under section 364, P. P. C. On the same day at 2-30 p. m. (Crime No, 27/81).
5. On 14th February, 1981 Malook Hussain, S. I. P. Went to the House of Muhammad Ismail and prepared such mashirnama. He then recorded the statements of Imamuddin and Nooruddin and interrogated suspect Shafique who volunteered to point out the dead body of Ismail which had been buried inside the house of the deceased. On 15th February, 1981, all the four appellants pointed out the place where they had buried the dead body of Ismail and separate mashirnamas were prepared. The body was exhumed in presence of mukhtiarkar and F. C. M. The postmortem was conducted by the Doctor at the place of wordat which was in the house of the deceased Ismail. Appellants were arrested. Appellant Shafique produced "Hathora" and Belcha" as crime weapons from the same house in presence of mashirs. These articles were also pointed out by appellant Rais. On 17th February, 1982 all the appellants were produced before mukhtiarkar and F.
C. M., Mirpurkhas who recorded their confessions. On completion of investigation, the Police challaned the appellants.
6. Prosecution in support of the case examined 9 (nine) witnesses before the trial Court.
7. P. W. 1 Nazar Muhammad is the complainant, P. W. 2 Imamuddin is cousin of complainant who was informed by Nazar Muhammad. His evidence is on the point of motive and having last seen the deceased. P. W. Rasul Bux is Chairman of Bhishti Biradri who was informed by Nazar Muhammad and he advised him to lodge the report. P. W. 4 Muhammad Yamin dug the place where dead body was buried. P. W. 5 is Dr. Sultan Mabmood who conducted post-mortem on the body of Ismail. P. W. 6 Abdul Hamid is mashir of wardat and recovery of dead body. He also attested the mash irnamas of pointing out the place from where dead body was said to have been buried. He has also acted as masnir of arrest of appellant and recoveries. P. W. 7 Muhammad Usman is Tapedar who prepared sketch of wardat. P. W. 8 Malook Hussain, Sub-Inspector, recorded the F. I. R. And conducted the entire investigation of the case. The evidence of P. W. 9 Ramesh Kumar, mukhtiarkar and F. C. M., is that, in his presence dead body of Ismail was exhumed. He also recorded confessions of all the appellants.
8. The appellants in their statements under section 342, Cr. P. C. Before the trial Court denied all the allegations and stated that case against them is false. Shafique has stated that he was tortured and had not stated anything in his confession and that prosecution witnesses were hostile to him before the incident. Rais has stated that judicial confession was dictated by the Police. He did not know why prosecution witnesses have deposed against him. Mst. Asghari admitted to have given confession but under threats of Police and stated that she has been involved because she refused to give her daughter as wanted by the prosecution witnesses. Mst. Parveen has stated that confessian was dictated by the Police and she has been involved due to enmity. She has further stated that they had gone to Sehwan to place "chader" at the Mazar whereas her father remained at the house. On return from Sehwan they went to the house of Nazar Muhammad who told them to stay in his house therefore, they all remained in his house for about I months. However, they came back to their house from where Nazar Muhammad, his wife, Nooruddin and Nazar Muhammad's son brought them back and this process continued till they were arrested. She has also stated that her father disappeared for eight months and that she was not present when dead body was taken out from their house. She has stated that they had dispute with Nazar Muhammad.
9. We have heard Mr. Yousuf Leghari, learned counsel for Shafique and Mr. S. Murtaza Hussain, learned counsel for pauper appellants, Mst. Asghari, Rais and Parveen. Mr. M. Mustafa appeared for the State. He has supported the conviction.
10. In this case there is no direct evidence but circumstantial evidence against the.Appellants which consists of the following particulars :-
(1) Pointing out of place from where dead body of Ismail was secured.
(2) That dead body of Ismail was found buried in the house occupied by appellants Mst. Asghari, Rais and Mst. Parveen.
(5) Recoveries.
(4) The circumstance that no report was lodged by inmates of the house about disappearance of Ismail.
(5) Motive.
(6) Confessions.
11. Appellant Mst. Asghari is wife of deceased Ismail whereas Rais is son and Mst. Parveen is his daughter. They all used to live with Isma il in a house from where dead body was secured. Appellant Shaflque is stated to be the paramour of Mst. Asghari. On the other hand complainant Nazar Muhammad is uncle of deceased Isma il and P. W. Imamud din is cousin of complainant.
12. We first propose to deal with the circumstance relating to the dead body of deceased Ismail buried in his own house which was also occupied by his wife, son and daughter who are also.
Appellants in this case. On this point the evidence is that appellants pointed out the place where, after murdering Ismail, they buried the dead body. During interrogation, Shaflque admitted that body of Ismail had been buried in his house and then in presence of mashirs Abdul Hamid and Sikendar, each appellant separately pointed out the place where the dead body was buried. The place was dug by Muhammad Yamin amongst others in presence of Ramesh Kumar, mukhtiarkar and Dr. Sultan Mahmood. The plastic bag containing human bones, hair, clothes, chappals and other material was found. Mashir Abdul Hamid, Exh. 20, states that appellant Shaflque voluntarily pointed out the place in the house of Ismail where dead body was buried. Thereafter each of the appellants Mst. Asghari wife of the deceased, Rais and Mst. Parveen separately pointed out that place. He has produced all four mashirnamas which are at Exh. 22, Exb. 23, Exh. 24 and Exh.
25. He has also stated that he was mashir of digging of that place from where plastic bag containing bones etc.' was found. He has produced mashirnama Exh.
26. His evidence is that when that place was dug, the mukhtiorkar. Doctor, S.H.O. And relatives of deceased were present. He has fully corroborate0 the mashirnamas. No enmity whatsoever has been alleged or suggested with this witness. He is a contractor and is resident of locality Satellite Town where the wardat is situated. P. W. 4, Muhammad Yamin, Exh. 15, had dug the place and took out the plastic bag containing bones. Dr. Sultan Mahmood Exh.
8. And Ramash Kumar, mukhtiarkar and F. C. M. Exh. 45, have also corroborated the recovery of dead body from the house of the deceased. Doctor Sultan Mahmood Exh. 8, has stated that on 15th February, 1981, he went to the house of Ismail as per written letters from District Magistrate, Tharparkar and Civil Surgeon, The place was dug in the presence of Mr. Ramesh Kumar, mukhtiarkar. The plastic bag containing bones without flesh was taken out. The skeleton was in pieces. The clothes were also in the bag some bones were also lying in the ditch outside the bag.
His findings are as under :-
(1) All the soft parts of the body had totally disappeared.
(2) There was no skin except on the occipital region of the skull alongwith hairs.
(3) All the visceras were absent.
(4) The skull was empty there was fracture of left temporal, parietal, frontal, sphenoid, left orbital and left maxilla.
(5) No fracture of mandible detected.
(6) No fracture of the vertebra detected.
(7) No fracture of scapula and clavical detected.
(8) No fracture of plevic bone detected.
(9) All the joints were separate.
(10) All the abdominal visceras were absent. On 15th February, 1981, he started post-mortem examination at 4-10 p. m. And finished it at 5-20 p. m. The descriptions of the clothes of deceased secured from the bag are given as under :-
(1) Pieces of sweater blue in colour.
(2) White Banyan sued with decomposed material.
(3) Pair of old shoes.
13. According to the.. Doctor the cause of death was shock and intracranial haemorrhage as a result of fracture of skull bones. The fracture appeared to have been caused by hard blunt substance. Postmortem report is at Exh.
19. In his cross-examination he has stated that it was body of a male. It is also mentioned in the report Exh. 19, that body was identified by Nazar Muhammad and Imamuddin. The complainant Nazar Muhammad has stated in his evidence that he identified the dead boy as clothes and shoes were of his nephew deceased Ismail. P. W. Imamuddin Exh.
12. Has also stated in his cross-examination that clothes found from the ditch were the same which the deceased was wearing at the time he met him. Therefore, identity of deceased Ismail is proved from the evidence.
14. On the .Same day appellant Shafique produced hathora and bekha from the house of deceased Ismail in presence of mashirs. These weapons were alleged to have been used in committing murder of Ismail. Further that ditch was excavated by belcha. These both articles were also pointed out by appellant Rais. Mashir Abdul Hamid and Malook Hussain S. I. P. Have fully supported the recoveries. These articles were not blood stained. However, this piece of evidence gets support from Medical evidence to the extent that death was caused by blunt weapons and that body was buried.
15. The next circumstance against the appellant Mst. Asghari is that she has failed to furnish any explanation regarding disappearance of her husband Ismail. Not only this but inmates have slept over the matter and not tried to locate Ismail nor filed any report to the Police, till complainant Nazar Mohammed made an application. Appellant Mst. Parveen in her statement has stated that her fat her had disappeared for eight months.
16. There is also evidence of motive against the appellant Shafique and Mst. Asghari. It consists of statement of complainant Nazar Mohammad and P. W. 2, Imamuddin. Both have stated that deceased Ismail told them that Shafique had illicit relations with his wife Mst. Asghari Begum for which he reprimanded his wife as well as Shafique. These witnesses are related to deceased as well as to appellants. They have also deposed that Mst. Asghari and Shafique issused threats to deceased Ismail. P. W. 3, Rasool Bux Exh. 13, is Nekmard of Bhihshtis. He has stated that Nazar Mohammad, Imamuddin and Nooruddin informed him that Ismail is missing since 4, 5 months. He further states in his evidence that Nazar Mohammad told him that Shafique had illicit connections with Mst. Asghari. It has also come in evidence of P. W. Imamuddin that Mst. Asghari wanted to give her daughter in marriage to Rafique brother of Shafique, her paramour, but he refused therefore she was quarrelling with him. The evidence of these witnesses on the point of motive is very strong and trustworthy. There is no reason for these witnesses to implicate the appellants false ly.
17. Mr. Yousuf Leghari learned counsel for appellant Shafique inter alia contended that the manner in which the judicial confessions have been recorded is not satisfactory as confessions of all the appellants were recorded in presence of co-accused who were sitting in the Court Room. He has relied upon a case Dhani Bux v. The State , where it has been held that : "I am afraid the way the confessional statement of Dhani Bux appellant was recorded right in view of his co-accused at a distance of about 30 feet from him possibly within his ear shot which possibility was of course denied by the Magistrate and at a time when the confessional statement of the acquitted accused had already been recorded in the admitted presence of Dhani Bux who1 was made to stand in a corner of the Court Room. It is difficult to infer that the appellant remained altogether uninfluenced by the conduct of his co-accused in the matter of his own confessional statement. It is not difficult to appreciate the phychological influence on the mind of the appellant or may be even his guilty conscience of what had already transpired in Court in his view and within his ear shot. The preceding confession of his co-accused must necessarily have exercised some persuasive if not compelling force on his mind to follow suit. In. That view of the matter the confessional statement of the appellant cannot be characterised as free and voluntary having been made in an absolutely free and uninhibited."
18. The facts of the Case in hand are identical. To that of about reported above.Although Magistrate has stated in his evidence that he recorded confessions separately but in his evidence he admitted that appellants were sitting in a Court Room when other accused were making confessions but they were not able to hear the contents of narrations of others. Therefore in the light of Supreme Court decision in the reported case, the evidence of confessions made by appellants cannot be considered against the appellants.
19. Mr. S. Murtaza Hussain submitted that there is delay in lodging F. I. R., the motive is false and circumstantial evidence is not trustworthy. We have already discussed all these points in the above-mentioned paras. Of the judgment.
20. Now, we proceed to visualise the principles as to what type of circumstantial evidence in the absence of ocular evidence can be held sufficient for sustaining a conviction.
21. We prorpose to refer some reported cases on this point :- In Abdul Samed v. The State the evidence of the deceased having been last seen with the accused corroborated by recovery of remains of dead body of child at the instance of accused was found sufficient for conviction. In Abdul Samad's case only bones and hair and pieces of cloth were found. In spite of that, identity of dead body was not doubted.
In Rehmat alias Rehman v. The State it has been held by the Supreme Court that the circumstance of the deceased having been last seen in company of the accused is not itself sufficient to sustain the charge of murder but further evidence is required to link the accused with murder of his companion such as incriminating recoveries at the instance of the accused, a strong motive and the proximity of the time when they were last seen together and the time when the deceased was killed. The conviction in that case under section 302/376 was maintained. Supreme Court in case Muhommad Yar v. The State , maintained the conviction under the circumstances when deceased was murdered in the appellant's house and no explanation about the whereabouts of the deceased was furnished by the appellant. We also refer the case of Anwar- ulHussain v. The State Supreme Court maintained the conviction on circumstantial evidence and held that circumstantial evidence in absence of ocular evidence can be held sufficient for conviction. In Nazir Ahmed and others v. The State wife of deceased in collusion with other took away deceased on the pretext and was murdered and at the instance of the wife of deceased (female accused) second purse watch other thing and on the basis of causing disappearance of the evidence the Supreme Court maintained conviction on the evidence of motive last seen and circumstantial evidence and same view was taken in a case Shirin and others v. The State .
In case Subhanuddin v. The State where deceased was last seen in the company of accused and failed to furnish explanation regarding disappearance of deceased and articles recovered at the instance of accused the conviction was maintained. In a case Habibullah v. The State on the basis of retracted confession complied with circumstance that conduct of accused as well as medical evidence the conviction was mantained.
22. In the instant case. Circumstantial evidence is not confined to the circumstance that the deceased was last seen alive in the company of the accused. The accusation is that family members in collusion with Shafique committed the murder of Ismail and buried him in his own2 3 4 5 6 7 8 9 house where three appellants were also residing. The dead body was recovered from that house, and no explanation whatsoever has been furnished by them. The motive has been proved coupled with the strong circumstance that dead body of Ismail was taken out at the pointation of the appellants. The family members remained silent for about 8 months. They had not lodged report.
We are of the opinion that the circumstantial evidence is sufficient to sustain conviction. However, since there is no direct evidence, we have to assess the circumstantial evidence against each of the appellants separately.
23. Evidence against Shafique and Asghari consists of motive, pointing out of place where dead body was buried. Further Shafique voluntarily produced crime weapons from the house of deceased. Mst. Asghari being the senior member of family has not informed anybody about the disappearance of her husband and that there is no enmity alleged with Mashir and other witnesses and there are other surrounding circumstances as discussed above.
24. We are accordingly of the view that charge under section 302/34, P. P. C. Has been proved against Shafique and Mst. Asghari. Therefore we dismiss their appeal and maintain their conviction under section 302/34, P. P. C. Consequently the death sentence of Shafique and Mst. Asghari is confirmed and Reference 374, Cr. P. C. Is consequently accepted.
25. Appellant Shafique and Mst. Agshari have further been convicted under section 201, P.P.C. And each has been sentenced to suffer R. I for 7 (seven) years. The legal position is that when murderer himself tries to screen the offence and removes the evidence of his guilt he cannot b D convicted under section 201, P. P. C. As well, we refer to the case of Gulzar Khan v. The State . Since Shafique and Asghari have been convicted under section 302, P.P.C. Their conviction under section 201, -- P.P.C. Is set aside.
The evidence against Rais and Parveen consists of pointing out of dead body. They have also suppressed the fact about disappearance of their father and there are reasons to believe that they knew that their father had been murdered. They caused the evidence to disappear. The body of their father was buried in their house and they had knowledge. Weapon has not been produced by Rais but he had pointed out the weapons secured at the behest of appellant Shafique. There is no motive on the part of Rais and Parveen's children of the deceased, to murder their father. Therefore, in our view evidence is not sufficient to sustain charge of murder against these two appellants.
Giving benefit of doubt we set aside their conviction under section 302/34, P.P.C. And sentence of imprisonment of life but maintain their conviction under section 201/34, P.P.C. Rais and Parveen were arrested on 15th February, 1981. They have remained in Jail of more than 3 years. The maximum sentence of 7 years, as provided under section 201, P.P.C. Has been awarded to appellants. Therefore the case for reduction of sentence deserves consideration.
We, therefore, order that sentence already undergone will meet the ends of justice. Except above modification, the appeal of Rais and Parveen against conviction under section 201/34, P.P.C. Is dismissed. They should be released forthwith if not required in any other case. PLD 1975 SC 87 PLD 1967 SC 167 PLD 1977 SC 515 1981 SCM R 567 1980 SCM R 649 1982 SC MR 1146 1982 SC MR 1062 1983 SC MR 63510 1 2 3 4 5 6 7 8