1. WAHEEDUDDIN AHMAD, J.-These appeals by special leave are directed against the order of the former High Court of West Pakistan, Karachi Bench, in Criminal Appeal No. 453 of 1961, (Confirmation Case No. 19 of 1962), Criminal Appeal No. 59 of 1962, and Criminal Appeal No. 60 of 1962, dated the 5th February 1963. By this judgment, the respondents' appeals were allowed, their conviction was set aside and the death sentence against respondent Sohbat Khan was not confirmed.
2. Respondent Sohbat Khan, along with Abdul Ghafoor and Alauddin was tried for the murder of Mrs. Rafia Pirzada and for murderous assault on Mr. Sharifuddin Pirzada by the Additional Sessions Judge, Karachi. They were all convicted under sections 396 and 307/34, P. P. C. Sohbat Khan was sentenced to death and the other two were sentenced to transportation for life. The learned Additional Sessions Judge alternatively sentenced Sohbat Khan and Abdul Ghafoor under section 302, P. P. C. And Alauddin under section 302/109, P. P. C. But no separate sentences were imposed upon them.
3. The matter was taken up in appeal and the High Court disbelieved the approver's evidence. It also disbelieved the evidence of Ghulam Mustafa Kamal and Karim servants of Mr. Pirzada who had identified the culprits. It discarded the judicial and extra judicial confessions of the accused persons and came to the conclusion that the guilt of the accused persons has not been sufficiently established and acquitted all the accused persons.
4. Leave was granted in this case on the applications of the complainant Mr. Sharifuddin Piraada and the other by the State to consider the question whether the respondents have been acquitted on principles consistent with the safe dispensation of justice.
5. The prosecution case is that the above-mentioned three respondents, entered into a conspiracy with one Yasin (absconder) and one Mohammad Siddiq, who became an approver in the case to commit dacoity in the house of Mr. Sharifuddin Pirzada, situated at No. 37-G, K. D. A. Scheme No. 1, North Karachi, which is adjoining Mohammad Ali Society. In furtherance of the conspiracy, they committed dacoity in the early hours of 24th May 1960, and killed Mrs. Rafia Pirzada and made murderous assault on Mr. Pirzada. In this connection, it is alleged as under :---- "It is alleged that the absconder Yasin, who was employed as cook at the residence of Mr. Pirzada, but was sometime before the occurrence, dismissed from service due to his insolent behaviour, had conspired with Sohbat Khan, Abdul Ghafoor, Alauddin and Mohammad Siddiq to commit an armed dacoity in the house of Mr. Pirzada. For this purpose, they all went there during the night between 23rd and 24th May 1960, but as Mr. Pirzada had returned from Dacca late that night and his younger brother Haider Ali was to leave for Hyderabad early in the morning, no suitable opportunity was found and the object could not be achieved. Accordingly. All the five went there again on the following night and at about 2-15 a.m. Of the 24th May 1960, Yasin led the party over the compound wall into the house and entered it through the kitchen by opening the communicating door with a duplicate key with which the said Yasin had already armed himself during the course of his employment. From there, they went to the bed rooms upstairs. The front bed room in which the adopted daughter of Mr. Pirzada slept, was empty as she was spending the night with her parents and the culprits then tried to open the door leading the second bed room which was an air-conditioned room and the air-conditioner was on. The door creaked and awoke Mrs. Pirzada. She got up and called out "who is there". Upon this, the respondent Sohbat Khan, it is alleged, pounced upon her and dealt her several blows with a knife and the other culprits pounced upon Mr. Pirzada and pinned him down on the bed with his face downwards. He too was inflicted several knife injuries but since both of them had been raising alarms all the time, the culprits thought it better to leave. On the way out they picked up a few articles and some money and again came out in the compound.
6. Two of the servants of Mr. Pirzada who were sleeping in the house and had already been awakened by the cries of their employers also joined in raising alarms and Chowkidars from the neighbouring houses also started collecting. Yasin, at this stage, quietly slipped away because he was afraid of being recognized but the other four culprits rushed to the main gate. Finding it closed, they skirted round and departed by the same way to which they had come, i.e. By climbing over the wall near the fountain at the end of the garden. The servants in the meantime, came round to the gallery overlooking the front compound and saw the four culprits while escaping in the light of seven electric bulbs burning in the compound. The verandah above was barely 7/8 feet in height from the ground and thus they got the clear view of the features of the culprits who had no face coverings.
7. Mrs. Pirzada succumbed to her injuries soon after but Mr. Pirzada survived with grievous injuries. It was he who lodged the first information report at 4-45 a.m. Of the same day with a Police Officer who came to his residence on receiving information of the dacoity over the telephone. In this first information report all that was stated was that the accused were four in number, but their names and addresses could not be given as they were not known. On this first information report a case under sectionsi302 and 396, P. P. C. Was registered and investigation was taken up."
8. Sohbat Khan respondent was arrested at 11-30 a.m. On the 3rd June 1960, in connection with another dacoity which was committed at Soldier Bazar. Mohammad Siddiq approver was arrested on the same day. Abdul Ghafoor was arrested on the 4th June 1960, and Alauddin was arrested at Lahore on the 8th June 1960. An identification parade was held in the City Courts' lock-up on the 11th June 1960, and Abdul Ghafoor, Mohammad Siddiq and Sohbat Khan were correctly identified by Mohammad Bashir P. W. 2, Hotel Keeper near Karsaz, Drigh Road, Karachi, Ghulam Mustafa Kamal P. W. 8 and Mohammad Karim P. W. 9, the servants of Mr. Pirzada. Later on, another identification parade was held on the 18th June 1960, and Alauddin was identified by Mohammad Bashir, Ghulam Mustafa Kamal and one Riasat Hussain.
9. Mohammad Siddiq's confession, Exh. 92, was recorded by Mr. Azizuddin, Additional City Magistrate on the 14th June 1960. Sohbat Khan's confession was recorded on the 18th June 1960. Abdul Ghafoor's confession was recorded on the 16th June 1950, and Alauddin's confession was recorded on the 21st June 1960. Mohammad Siddiq was granted pardon on the 23rd August 1960. All the three accused persons have retracted from their judicial confessions. Mohammad Siddiq has stuck to his statement and has been examined as an approver in the case: As already pointed out they were challaned and were convicted by the Additional Sessions Judge. Karachi. The High Court has acquitted them.
10. At this stage, it may be pointed out that Yasin was arrested after the leave was granted and committed to the Sessions Court for trial. Respondent Abdul Ghafoor had not been traced and respondent Sohbat Khan was released from prison in spite of the order of the Court not to release him. He has since been arrested and these appeals are being heard against him. The appeals against Allauddin, namely, Criminal Appeals Nos. K-24 and K-25 of 1963 were heard by the Full Court and were allowed on the 16th May 1968. The appeals against other respondents were kept pending. After the arrest of Sohbat Khan, he requested for the hearing of the appeals and these appeals are being heard against him.
11. The prosecution case is supported by the following pieces of evidence;
(i) Judicial confession of Sohbat Khan;
(ii) Extra-judicial confessions;
(iii) the evidence of the servants of Mr. Pirzada;
(iv) Identification parade held against Sohbat Khan on the 7th June 1960;
(v) evidence of P. W. 31 Ghulam Mustafa, Finger Print Expert; and
(vi) evidence of the approver.
12. The allegation against Sohbat Khan is that he joined in the conspiracy, entered the house of Mr. Pirzada and went to the bed room of Mr. Pirzada and attacked Mrs. Pirzada and killed her. This fact is admitted by him in his confession, Exh. 96, on page 137 of the record. He has admitted in his confession and in this connection stated as under :- "We entered into the upper room. Nothing was taken from there. Yasin opened the door of adjoining room in which Begum and the Sahib were sleeping. Yasin opened the door one time and shut it.
13. When he opened it second time, it gave a sound. On that Begum got down from the bed and stood down. The Begum asked as to who was there. All the five of us pushed the door at once and advanced towards the Begum. We lifted the Begum and threw on the bed. I placed my hand over her mouth. She was raising cries of 'chor' 'chor'. I gave the Begum one knife blow with knife Article I.
14. On that the Sahib got up. Then the four persons, Alauddin, Yasin, Abdul Ghafoor and Mohammad Siddiq went towards the Sahib. I stood placing my hand over the mouth of the Begum. I do not know as to which person dealt blows to the Begum. I had dealt only one blow.
15. It is thus clear that respondent Sohbat Khan gave the fatal blow to deceased Mrs. Pirzada and killed her.
16. It may be noted that the learned trial Judge and the High Court have discarded the judicial confessions on the ground that they had been in the police custody for sometime before they were produced before him for getting their confessions recorded and that they were not asked question as to how long they had been in the police custody and why they had been chosen to get their confessions recorded. In our opinion, the reasons given by the learned trial Court and the High Court on this point are unsatisfactory. The fact that Sohbat Khan was for some time in the police custody does not lead to the conclusion that he was tutored. Remaining of accused persons for some time in police custody does not effect their judicial confessions. Mr. Azazuddin, A. C. M., who recorded the statements has clearly stated in his statement that full opportunity was given to the accused persons to explain the circumstances in which they were giving their statements and complied with the pro forma which was available for recording the judicial confessions. This shows that the confessions were made voluntarily.
17. Mr. Abdul Wahab, learned counsel for the respondent has referred to Chapter VI, Part 'C' of Federal Capital of Sind Court Circular in which it is mentioned that the person from whom the confession is taken should be asked as to how long he had been in police custody. This formality was not complied with. It is contended that for this reason the trial Court and the High Court were perfectly justified in rejecting the confessions, The contention of the learned counsel has not impressed us.
18. The direction in the Criminal Circular was of a directory nature and its irregularity does not vitiate the confessions. Mr. Murtaza Hussain, learned counsel for the appellants, has referred to the case of Juma and others v. The Crown (PLD 1954 Lah. 793). This decision supports his contention that an irregularity of this nature is not sufficient to reject the confessions.
19. We have gone through the confessions and there is sufficient corroboration of their contents. It is in evidence that Sohbat Khan entered into conspiracy with Alauddin, Abdul Ghafoor, Yasin and Mohammad Siddiq. They sat on the mount near the house of Mr. Sharifuddin Pirzada. Butts of cigarettes were found on the tills. He was identified by Ghulam Mustafa Kamal and Karim while escaping from the house of Mr. Pirzada. In these circumstances, the learned trial Court and the High Court should have relied on the confession. It was a voluntary one and was corroborated in material respects.
20. The next piece of evidence is extra judicial confessions. These were made before Mohammad Yousaf P. W. 20 and P. W. 24 Mohammad Yasln. P. W. 20 Mohammad Yousaf stated that he was sitting on a bench outside Allah Rakha garage. It was 7-00 a.m. Sohbat Khan and Siddiq came there and sat beside me. Their clothes were soiled with dirt and their eyes were red. He asked Sohbat Khan what was the matter you have not slept and appeared to be upset.
21. Sohbat Khan narrated the incident to him and said that during the night five persons had gone to Mohammad Ali Society. He said, he, Ghafoor, Siddiq and two other persons were there. Sohbat Khan said they had got through the kitchen up and the woman in the room had raised alarm. He said he had attacked the woman and the other four held the man. He said he had thrown the woman on the cot and stabbed her four times. Similar statement was made by P. W. 24 Mohammad Yasln.
22. These extra judicial confessions have been accepted by the trial Court but were rejected by the High Court. In our opinion, the rejection of these statements by the High Court is on unsatisfactory grounds. The remarks of the learned trial Judge that he believed Yousaf that Sohbat Khan narrated the whole story of the crime in a spirit of bravado early in the morning appears to us to be quite cogent. We would, therefore, accept the extra-judicial confessions made to the above two persons.
23. The next piece of evidence against the respondent is about the identification of the approver and Sohbat Khan by Ghulam Mustafa Kamal P. W. 8 and Mohammad Karim P. W.
9. These two servants were awakened by the cries of the victims. The High Court has rejected their testimony on the ground "that in order to be able to follow their movements they had moved further to the balcony towards the east or they were even in a position to do so." Ghulam Mustafa Kamal had stated that "as the accused turned from the gate, I and Karim, ran along the gallery around the terrace and reached its end" This they could only have done to see what the miscreants were doing. To the similar effect, Mohammad Karim also stated that "when they (the miscreants) passed from the kitchen door, to the gate, they passed within 7/8 feet of us" and that "when the miscreants turned towards the lawn side, we ran down to the gallery to the terrace--". In these circumstances, it cannot be said that these two witnesses v6ere not in a position to identify respondent Sohbat Khan.
24. Seven electric lamps were burning in the compound and in our opinion, in the light of these lamps the miscreants could be easily identified. Their evidence was, therefore, wrongly rejected by the High Court.
25. There is also evidence that P. W. 2 Mohammad Bashir. Hotel Keeper, near Karsaz served tea to the respondent and other accused persons. He also identified Sohbat Khan. No cogent reason has been given to reject his evidence. This evidence clearly shows that the accused persons gathered at his place in connection of the conspiracy and committed the crime fn question. The evidence of this witness was not even noticed by the High Court.
26. The next piece of evidence against respondent Sohbat Khan is the evidence of Ghulam Mustafa P.
27. W. 31, Finger Print Expert. In this connection it may be noticed that Finger Print Expert found the finger prints on the almirah which was lying in the bed room of Mr. Pirzada. The finger prints found on this almirah were compared by Ghulam Mustafa with the finger prints of Sohbatt Khan respondent and were found to be of that of Sohbat Khan. Mr. Abdul Wahab, learned counsel for the respondents, has contended that the finger prints of respondent Sohbat Khan were procured later on the almirah and, therefore, this evidence should not be believed. Except bare suggestion there is no reliable evidence to support this contention. Mr. Ghulam Mustafa has been proved to be an Expert and his evidence goes a long way to show that Sohbat Khan was one of the persons who participated in the crime on the eventful night.
28. The last piece of evidence is of the approver. Mr. Abdul Wahab, learned counsel for the respondent, has contended that the evidence of the approver was a tutored one and no reliance should have been placed on this evidence by the trial Court. According to the learned counsel, he was a favoured person with Mr. Wajihul Hassan P. W. 6 and had made an obliging statement with a view to implicate the respondent in the crime in question. We have gone through this evidence and found no substance in the allegation. The approver was cross-examined at length and he was not shattered in his evidence. The question whether the approver's statement should have been relied upon or not was considered by this Court in Criminal Appeals Nos. K-24 and K-25 of 1963, decided on the 16th May 1968, which was reported in 1968 SCMR 1182. In this connection it was observed as under :- "We have been taken through the evidence of the approver, both by the learned Additional Advocate-General and by the learned counsel for the respondent but we have not been able to discover any serious discrepancy therein. He does not appear to have been confronted with any material contradiction between what he had stated in his confessional statement and his deposition in Court, except for a minor omission. It appears that he had omitted to mention in his statement before the Magistrate the presence of Abdul Aziz and Riasat Ali at Hussaini Hotel when Sohbat Khan, the approved and Alauddin were holding a discussion on the footpath outside the Hotel at about 8-00 p.m. One night. This was just an omission and had in any event, nothing to do with the main incident itself. We are satisfied upon a careful perusal of the evidence of the approver that the wealth of detail that it contains could not have been supplied by him unless he was himself a participant and was actually present at the time the incident took place"
29. In that judgment this Court considered the various contradictions mentioned by the High Court in rejecting the approver's state--ment. In that connection, it was observed as under :- "The first contradiction mentioned by the High Court is that he had not in his confessional statement disclosed that Riasat Hussain P. W. 26 was present at the Hussaini Hotel when he was discussing with Sohbat Khan and Alauddin, on the footpath outside the hotel, at 8 p.m. Of the night, the proposal for the commission of the dacoity in question. It is true that he had omitted to mention this fact in his confessional statement. This is, however, a mere omission which cannot be treated as a contradiction, for it is possible that it may riot have occurred to the witness at the time that it was such an important fact that it must be disclosed particularly since the person concerned (Riasat) was not a person in whose hearing the conversation had been held. It was only in cross- examination in Court that it was elicited by the learned defence counsel that Aziz and Riasat were also present in the hotel at the time the talk between him, Alauddin and Sohbat Khan was being held on the footpath outside. The High Court is not also right in saying that even in Court the approver had only referred to the presence of only Aziz and Ghlasuddin and not Riasat who was the only person examined by the prosecution. We are in the circumstances unable to agree that this is so important an omission that for this the entire evidence of the approver should stand discredited even though there was otherwise substantial corroboration of his evidence in material particulars relating to the incident itself.
30. The next contradiction relied upon by the learned Judges of the High Court is that the approver's version of the blows struck on Mr. Pirzada and particularly on one of his hands by a pistol, while he was trying to free himself from the clutches of the culprits; is not supported either by Mr. Pirzada himself or by the medical evidence. In appraising the evidence of Mr. Pirzada the High Court has overlooked the fact that there was no light burning in the room and there was very little light coming from outside as the air-conditioner was working and the curtains must have been drawn.
31. Furthermore, he was being pressed down by the culprits on the bed with his face downwards all along. He could not, therefore, have noticed with any precision as to who was doing what and with what kind of weapons be was being hit. This specific question, it appears, was put to him and all that he could say was ; "I do not remember that any of the attackers had caught hold of my hand and he hit at my hand with a blunt weapon. Nor is it correct that this so happened and I cried upon being hit and I let go his hand. I had not received any injuries to any of my hands in the struggle."
32. This does not show that he had given a clear contradiction of what had happened at the time. It is also possible that the approver, who was himself engaged in pinning down Mr. Pirzada, may have inferred from the fact that Mr. Pirzada had let go of the hand of Yasin after he had caught hold of it, because Yasin, who was to his knowledge armed with a pistol, had struck him with it. In these circumstances, it cannot be said that the approver has deliberately given a false version of the incident, because, he was not there. The High Court was, therefore, not right in taking the view that Mr. Pirzada had clearly contradicted the approver on this point. Such slight inconsistencies cannot, in any event be sufficient to discredit the approver altogether, The next contradiction referred to by the High Court is that Mr. Pirzada had stated that he had seen only two culprits who were holding him down and causing him injuries. Therefore, it has been concluded, the approver was lying when he said that there were four persons who were attacking Mr. Pirzada. Again, it has, in this connection, to be pointed out that all that the later stated was ; "Before I could realise what was the matter, I felt two persons attacking me and pressing me down on the bed."
33. But a little later he elaborated upon on this as follows :- "I was struggling and shouting and trying to get up I was being pressed to bed face down all along . . . . . There may be more than two persons in the room in the attacking party but I cannot say whether there were or whether there were not, for, I had no chance to realise or to see shat was happening. Then as soon as I felt a little free and turned round I saw two figures running out of the connecting door into the first bedroom."
34. Then again further down he stated ;- "I felt that two men had caught hold of both of my legs."
35. This evidence read as a whole does not support the conclu--sion of the High Court that Mr. Pirzada had only seen two culprits holding him down and causing him injuries. All that he saw, when he managed to free himself and turn around, was that two figures were running out of the room. This again, we regret to say, does not show that the High Court had read the whole evidence with the care that it deserved. If two persons were pressing him down and then again two were holding his legs, as he stated later, then surely these add up to four, as is stated by the approver. For a fair appraisal of the evidence it is necessary that the evidence must be read as a whole and it is not a proper approach to this rather delicate task to tear out sentences here and there from out of their context in the deposition of one witness to contradict another, particularly where the witness sought to be contradicted has not been confronted with the specific portions sought to be utilised against him. Fairness demands that before any adverse inference is drawn the person sought to be belied should be given an opportunity to explain the inconsistency. No such opportunity was given in the present case. The criticism of the learned Additional Advocate-General, therefore, that the High Court's conclusions are based upon a misreading of the evidence and a wholly improper approach to the task of assessm ent of the evidence of the approver does not appear to be unjustified."
36. We are in respectful agreement with these observations. We are also of the view that the contradictions referred to by the High Court are of a very minor character and do not lead to the conclusion that the app rover's statement is false.
37. After carefully considering the above evidence, we are satisfied that the High Court has acquitted the respondent on wholly artificial and superficial grounds. The High Court has misread the evidence. There is reliable evidence against the respondent which clearly proves that he participated in the crime and is responsible for the murder of Mrs. Rafia Pirzada. He also made a murderous assault on Mr. Pirzada in order to kill him. , We would, therefore, set aside the order of the High Court and allow the appeal.
38. The next point is about the sentence that should be awarded to the respondent. He waif acquitted by the High Court on the 5th February 1963. He was thus having expectation for life for all these 9 years. We would, therefore, award him sentence of transportation for life both under section 396 and 307/34, P. P. C.
39. In the result, the appeals are allowed. Respondent Sohbat Khan is convicted to transportation for life under sections 396 and 307/34, P. P. C.