' Sher Muhammad alias Shera (22) son of Fateh Sher, Aman Ullah alias Gullah (12) son of Ahmad resident of village Jahan Abad, Jahan Khan . Alias Jahana (18) son of Sher Zaman caste Awan resident of Chak No, 190- NB and Shameer alias Shama (2C) son of Ameer caste Khokbar resident of Vish District Sargodha, were tried by Mian Ghulam Ahmad, Sessions Judge, Sargodha under section 364/302/201/34, P. P. C. For committing the murder of Atta Muhammd after having abducted in him furtherance of the intention common to all of them and for their act in disposing of the dead body with a view to cause the disappearance of evidence. The learned trial Judge while acquitting Aman Ullah and Jahan Khan of all the charges, vide his judgment dated 21-12-1980 convicted and sentenced Sher Muhammad alias Shera and Shameer All alias Shama under section 302/34 to life imprisonment and a fine of. Rs, 5,000 each or in default of payment to undergo further two years' R. I. Each ; under section 201/34, P. P. C. To six years' R. I. And to a fine of Rs, 2,500 each or in default of payment to serve further for one year R. I. Each. The sentences were ordered to run consecutively. Two-third of the amount of fine if recovered was to be paid to the legal heirs of Atta Muhammad deceased.
2. Both the convicts have filed the present appeal. Rab Nawaz complainant has also filed a revision petition (Cr. R. 18J-81) against the acquittal of Aman Ullah and Jahan Khan and for enhancement of the sentence awarded to both the convicts/appellants. This judgment will dispose of the appeal as well as the revision petition together.
3. The occurrence took place on the night between 9/10 October, 1979 in the the area of village Jahan Abad at a distance of six miles towards East from the Police Station Shahpur Saddar. The matter was reported to the police by Rab Nawaz (P. W. 7), the real brother of the deceased on 11-10- 1979 at 6-15 p. m. Vide F. I. R. Exh. P. E.
4. According to Rab Nawaz complainant he alongwith his brothers Atta Muhammad (deceased) and Mian Muhammad were residing in village Jahan Abad where they owned 27 acres of land jointly. The complainant was a married man whereas his brothers were still bachelors. On 9-10-1979 he requested Sher Muhammad appellant for the tube-well water who cultivated the land as a tenant adjoining the land of We camplainant. Sher Muhammad appellant said that the complainant could come at 9/10 p. In. For the purpose. The complainant then said to Sher Muhammad appellant that his brother Atta Muhammad deceased would come to get the water.
Accordingly Atta Muhammad deceased went for the water at 9-00 p. m. But neither the deceased returned nor he irrigated the paddy crop. During the search he was told by Muhammad Aslam (P.
W. 1) and Maula Bakhsh (P. W. 2) that on the night of occurrence at about 10/11 p. m. They had seen the deceased in the company of the appellants and the acquitted co-accused going towards the katcha path of saim nala. At that time Jahan Khan co-accused was armed with a gun while the appellants and Aman Ullah co-accused had hatchets with them. Atta Muhammad deceased had a torch with him. The deceased was wearing a light brown shirt, white chadar, bunian and simple khoosa on his feet. He had a watch on his left wrist and a bead in the pocket of his shirt. The complainant searched for the appellants and the acquitted co-accused but he could not find them.
' Sher Muhammad appellant had a suspicion that the deceased had illicit relations with his wife Ms:. Thad Waddi. The complainant apprehended that the appellants and the acquitted co- accused due to that reason had killed Atta Muhammad deceased.
5. Ghulam Muhammad A. S.-I. (P. W. 8) partly investigated this case. On 22-10-1979 he arrested both the appellants and the acquitted co-accused. At the time of his arrest Jahana co-accused produced a 12 bore gun alongwith five live cartridges and a bag. On 5-11-1979 the A. S.-I. Produced all the four accused before Ch. Ameer All M. I. C. Sbahpur and made an application Exh. P. F. For getting their statements recorded under section 164, Cr. P. C.
' Manzoor Abmad S, I. (P. W. 9) also after recording the F. I. R. Exh. P. E. Made a search for the appellants and the co-accused but he could not find them out anywhere. He also searched for the dead body of Atta Muhammad deceased in the saim nala, in the area of village Jahan Abad but all in vain. However, the appellants and the co-accused- bad been arrested by Ghulam Muhammad A. S.-I., on 22-10-1979 so he interrogated the accused. On 23-10-1979, Sher Muhammad led the S.-I.
To the dhari of Muhammad Shafi Jat where Atta Muhammad deceased had left his chadar P. 1 before his disappearance. Faqir Muhammad P. W. Produced the chadar which be took into possession vide memo. Exh. P. A. Rab Nawaz P. W. Identified the chadar P.
1. As that of the deceased. Sher Muhammad appellant then led to the recovery of hatchet P. 2 from his residential kotha. It was taken into possession vide memo. Exh. P. C. Similarly on the same day Shameer Ali alias Shama appellant while in police custody led to the recovery of shoe P. 3 belonging to the deceased from sulki branch canal near bridge kudyana. Shoe P. 3 was identified by Rab Nawaz P. W. As that of the deceased. It was taken into possession vide memo. Exh. P. D. He got prepared site plan Exhs. P. B. And PB/1 by Patwari Fateh Muhammad.
6. Ch. Ameer Ali M. I. C. (P. W. 10) on the application (Exh. P. F.) submitted by Ghulam Muhammad A.
S. I., recorded the statements of the appellants and the co-accused under section 164, Cr. P. C. After complying with the provisions of sections 164 and 364, Cr. P. C. In his statement Exh. PF/3 Jahan Khan co-accused inter alia confessed having accompanied the other accused during which they abducted Atta Muhammad deceased and thereafter took him to the saim nala where he was strangulated by Sher Muhammad appellant and killed. Shera and Shameer appellants Inter alia confessed their guilt that they killed Atta Muhammad deceased by strangulation and thereafter cut the body into pieces and threw the same in the saim nala. They destroyed the belongings of the deceased by putting into the said nala. Aman Ullah co-accused however, stated that Atta Muhammad deceased had come to their dera for making a request as to the water to Sher Muhammad appellant but since Sher Muhammad appellant was not present at the dera, the deceased sat with him. After a while. Shera and Shameer appellants came there who caught hold of the deceased. He (Arran Ullah co-accused) went outside out of fear and slept on a charpal. It was 10/11 p. m. At that time.
7. The prosecution at the trial relied mainly upon the confessional statements of the appellants and the co-accused, the circumstantial evidence in the form of recoveries the last seen evidence. Ilyas witness was given up as unnecessary and Muhammad Nawaz as having been won over.
Muhammad Aslam P. W. I and Maula Bakhsh P. W. 2 witnesses as to the last seen evidence were declared hostile by the prosecution as they withheld the same and denied having been intimidated by the accused. The appellants and their co-accused in their statements under section 342, Cr. P. C. Made at the trial, denied all the allegations levelled against them. As to their confessional statements made before Ch. Ameer Ali Magistrate each of the accused stated that the same were exacted out by the police under torture and pressure and that the same were not voluntary statements. As to the involvement in the case they stated that they had been involved in the case due to enmity and party faction. No evidence was led in defence except that Jahan Khan co-accused tendered a school leaving certificate Exh. D. B. Showing his age as 16 years, a certified copy of a bail order Exh. D. C. Passed by the High Court qua him and a -certified copy of the order Exh. D. D. By which he was acquitted in the Arms Ordinance case.
8. The learned trial Judge believing the prosecution case while relying upon the confessional statements of the appellants and recoveries except the motive found the appellants as guilty. He however. Acquitted Jahan Khan and Amanullah co-accused since according to him their conduct was not inculpatory.
9. The learned counsel for the appellants has contended that the appellants were already in the custody of the police before their arrest and for this he has referred to the statement under section 164, Cr. P. C. Of Amanullah, the acquitted accused wherein it was stated that he was in the custody of the police for the last 25 days. The confessional statements were obtained on the 15th day of the arrest of the appellants. It had been specifically alleged by appellant Shameer and recorded by the Magistrate that the appellants were tortured by the police, as such, according to the learned counsel the confessions made by the appellants cannot be treated as having been made voluntarily. The learned counsel has next contended that there is no other evidence except the confessional statements and recovery of shoe P. 3 from the canal at the instance of Shameer appellant and hatchet P. 2 (not blood-stained) at the instance of Sher Muhammad appellant. As to the recovery of shoe P. 3 from the canal submerged in waste deep water it is not believable that the shoe remained static within the canal for so many days and that could be brought out after surveying in some compass. The hatchet recovered being not stained with blood cannot be connected with the commission of the crime so as to show that the same hatchet was used. It has been emphasised that the confessions were retracted at the trial. The confessions were made after the appellants remained in the custody of the police for a long time, so the confessions have no probative value. After the appellants made their confessions they were handed over to the same police officer. In this circumstance the confessions cannot be used against the appellants. The learned counsel has concluded his contentions by submitting that the confessions being not voluntary, cannot bd relied upon and once the confessions are ruled out then there is no other evidence to connect the appellants with the commission of the offence. The recoveries, alone even if believed are not sufficient for the conviction of the appellants, as such the appellants are entitled to acquittal. In support of his contentions the learned counsel has has relied upon Ghuiam Qadir v.
The State (1). In this case regarding the murder of two persons a confession made by Ghulam Qadir was not relied upon since the confession had already been retracted and had been recorded after a long interval of his arrest ; In Manzoor v. The State (2) a long detention of the accused by the Investigating Officer was regarded as indicative of the confession having been brought about under pressure and it was held that a retracted confession could not form the basis for conviction without substantial corroboration from an independent source. Tooh v. The State (3).
In this case the confession was recorded on the third day of the arrest of the accused. The delay of over 24 hours was considered as fatal to the acceptance of a judicial confession and the same was ruled out of consideration. In Muhammad Sharif v. The State (4) after discussing the procedure it was observed, "as such a greater duty is cast upon a Magistrate recording a confession to be satisfied himself that such a confession is voluntarily made and he must, consciencely devote his inquiry before recording the confession."; In Samano v. The State (5) a confession was held as not made voluntarily and as such hit by the provisions of section 24 of the Evidence Act because the accused half an hour before making of the confession had complained to another Magistrate of the police having given him beating for the purpose of exacting out the same. In Ghulam Rasul v.
The State (6), Wazir and others v. The
(1) 1983 SCMR 523 (2) PLD 1973 Lah. 714
(3) 1975 P Cr. L J 440 (4) 1975 P Cr. L J 889
(5) 1973 SCMR 162 (6),1977 P Cr. L 1985 State (1) was relied upon in which it was held that the persons who had made the confessions having been returned to the same police, the confessions could not be taken to be of voluntary nature. In Said Anwar v. The State (2) it was observed that the accused remained in the police custody for quite a few days where freely he could hardly have the advice of his relatives. There was no trace of evidence whatsoever connecting him with the crime before the confession and above all the confessional statement was not consistent with the direct testimony against him.
Those were the point which militated against the probational value of the confessional statement.
On that consideration of the matter the conviction was set aside ; Abdul Majid v. The State (3). In this case there was a delay of more than 48 hours in recording the confession, so it was observed that there was a string of authorities this where there was an undue delay in the recording of a judicial confession as that was in the case in hand, no evidentiary value could be placed thereon ; In Syed Abid Hussain Shah v. The State (4), it was observed that the contention of the learned counsel that the judicial confession of the acccused was to be disregarded as the same was recorded three days after his arrest and that too under duress, had great force. ; Maskeen v. The State (5), in this case the confessional statement was kept out of consideration since there were certain facts available on the record proving non-voluntary nature of the confessional statement of the accused which was retracted at the trial. One of the considerations was that the accused confessed after he had remained in the custody of the police for four days. In Muhammad Nasim Agha and another v. The State (6) there was a delay of 11 days in recording the confession of the accused since his arrest the explanation given for that was not regarded as satisfactory, and the same was treated as one of the considerations against the validity of the confession.
10. The learned counsel for the State assisted by the learned counsel for the complainant while opposing this appeal has submitted that the names of the appellants are fully mentioned in the F. I.
R., the confessions before P. W. 10 Ch. Amir Ali M.
1. C. Have been properly proved as having made voluntarily. There is also in the evidence of P. W. 4 Manzoor Ahmad that he saw certain persons though not identified at the relevant time at the saim mala whereby on his enquiry he was told that they were catching fish. The recovery of hatchet P. 2 at the instance of Sher Muhammad appellant and the recovery of shoe P. 3 at the lead of Shameer appellant offer sufficient corroboration to the confessions and the fact of the persons having been so seen at the relevant time also provides a circumstantial link, so when the confessions are taken alongwith the facts o.. Record, the guilt of the appellants stands established to rebut which no defence has been produced. No arguments separately on the revision petition La"e been addressed by the learned counsel for the complainant.
11. In this appeal the learned Sessions Judge Sargodha has mainly relied upon the confessions and has invoked the recoveries as a corroboratory evidence and also the fact that the appellants led the police to the kotha where they bad captured Atta Muhammad deceased and from where he was taken to the saim nala. As to the confessions the learned trial Judge has received these as voluntarily made and As such valid in all the respects.
(1) PLD 1960 Kar. 674 (2) PLD 1977 Pesh. 64
(3) PLD 1977 Kar. 760 (4) 1983 P Cr. L I 882
(5) 1983 P Cr. L J 1113 (6) 1978 P cr. L J 579
12. In criminal jurisprudence the subject of confession has been regarded as a very delicate one since the probative value of a confession is that if it is proved as voluntarily made by a person confessing then conviction upon that may follow immediately and the Courts are not required to look for corroborative evidence anywhere in a case though as an abundant caution the Judges have been looking for other facts so as to assure themselves that the confessional statements happen to be voluntary. The first question which has always arisen in such cases is that what moves a particular person to confess his guilt when be knows that his confession may put his own existence to an end. The Jurists have attempted to enlighten by saying that there are certain persons when they commit a crime a sense of remorse visits them as to the gravity of their action and their conscience prompts them as to acknowledge their sin in order to be purged of it. At the same time they have said that such a feeling take its predominance within the context of time as an immediate happening but if the time elapses then the human mind is so constituted that a man instead of submitting to his conscience starts raising justifications in respect, with an act however cruel, grave, sinful and unlawful it may be. In a case o murder it cannot be taken that a murderer after committing the crime remains peaceful in his mind. But if he happens to resist this immediate re percussion then it is very seldom that he comes to confess his crime in order to be purged of it, so it can be regarded in gist that after committing a heinous crime a person suffers psychological disturbance, if he succumbs to it immediately he confesses and if be resists it for a while then of course he does not.
13. A confession as a general rule of law is receivable as a testimony or as an admission which is admissible against its maker. However, sections 24 to 26 of the Evidence Act are exceptions to the general rule. If a confession comes within the ingredients enumerated in these provisions, then a confession is neither relevant nor admissible. Now if an exception to a C confession is in issue, the onus lies on the accused to prove that the confession is hit by any of the exceptions as contained the Evidence Act, but such an onus has not regarded by the law Courts as heavier. Apart from this it is evident from various authorities on the subject that the law Courts have been looking into the facts and surrounding circumstances independently in order to ascertain the voluntariness or involuntariness of a confession and any circumstance giving rise to suspicion as to voluntariness has been regarded as sufficient to reject a confession.
' In the present appeal the confessions of the appellants relied upon by the prosecution do not happen to have probative value in view of th reasons, firstly because the confessions were made after the appellants remained within the custody of the police for 14 days. The decisions cited above do minimize the value of a confession which happens to have been made by an accused person after having been for days together in the custody of the police; secondly that in his statement Shameer appellant in an answer to a question put by the learned Magistrate while recording his confession under section 164, Cr. P. C., maintained that they had been tortured by the police. Now this statement cannot be brushed aside because it cannot be said that it was an afterthought and was made only when the confession was retracted; thirdly that from their thumb marks on the confessional statements the appellants appear as illiterate persons, so the confessions made by them rich in detail as to the facts appearing in a regular sequence bringing out the prosecution case a whole suiting all the links, do give an idea that such confessions are a result of some tutoring emanating from some person familiar with the requirements of law and fourthly that the appellants and their co-accused after recording of the confessions under section 164, Cr. P. C. Were returned to the custody of the same A. S. I., might be with a view to sending them to the judicial lock-up, but such an act by the Magistrate himself, is liable to be depricated as in violation of a rule of law stressed upon by the law Courts from time to time, the same impairs the value of the confessions.
' Keeping in view all the aforesaid reasons the confessions made by the appellants are liabe to be rejected appearing as not made voluntarily.
' Once the confessions are ruled out of consideration, then there is no evidence to establish the fact in issue that the appellants alongwith others killed the deceased and in the absence of a proof of the principal fact the recoveries cannot he invoked as corroboratory because the fact about which one is to seek corroboration does not exist. The recoveries alone have never been taken as sufficient to prove the guilt of an accused person. Apart from this consideration no importance can be given to the recovery of hatchet P. 2 since it was not stained with blood nor it is an unusual weapon because the villagers do possess such things, towards their husbandry process. The way as the recovery of shoe P. 3 has been alleged at the instance of Shameer appellant from the canal is not believable on the face of the circumstances in which the same was effected.
' The testimony of Rabnawaz P. W. 7, the brother of the deceased as) to the fact that all the four accused persons had led the police to the kotha where they had captured Atta Muhammad deceased and from where he had been taken to the saim nala, cannot be received as admissible since there was no discovery within the meaning of section 27 of the Evidence Act and the same is hit by sections 25 and 26 of the Evidence Act.
It is within the statement made by the S. I. Manzoor Ahmad in his cross-examination that "it is correct that the deceased had been challaned in a number of other criminal cases including a murder case and an abduction case". So the probability of the deceased having been done away with by somebody else cannot be excluded.
15. For the foregoing reasons the case as a whole lacks evidence, there-. Fore, the appeal of the appellants is accepted and as a consequence thereof their conviction and sentences are set aside and they are acquitted. They shall' be released forthwith if not required to be detained in any other case. Resultantly, the revision petition for enhancement of the sentence of the appellants and against the acquitted accused, yet not admitted, stands dismissed.