' MUHAMMAD AZAM KHAN, J.-- The appellants, Sheri Zaman and Muhammad Nazamat sons of Sabir, residents of village Dhoke Gakharan, Gul Abbas son of Bahadur Khan, resident of Palanda, and Abdul Rashid son of Gul Zaman, resident of Dhoke Gakharan, Tehsil Haripur stood trial in the Court of learned Additional Sessions Judge, Haripur for offences under sections, 302, 364 and 201 read with section 34, P.P.C. In respect of murder of Naseer Ahmed son of Azeem Khan, resident of Dhoke Gakharan, and while two of them, namely, Abdul Rashid and Gul Abbas, were held guilty under section 302/34, P.P.C. And sentenced per order dated 12-10-1986 to suffer life imprisonment and to pay a ine of Rs,5,000 each or in default to undergo further R.I. For one year, the other two were convicted under section 201/34, P.P.C. And sentenced to suffer four years' R.I. Each. The fine if realised was directed to be paid to heirs of the deceased as compensation under section 544-A, Cr.P.C. They have preferred this appeal to question the said order.
2. It is a case of unwitnessed crime. Precisely when the deceased got killed is not clear from the record. The deceased was living separately from his parents, though in the same village, namely Dhoke Gakaran. He was found to have disappeared from the village and his father Azeem Khan, conveyed information to Police Station Khanpur to that effect. It was entered vide daily diary No,15, dated 20-1-1983. Acting on this information the police applied for permission to the Court of Ilaqa Magistrate to launch investigation under section 156(3), Cr.P.C. The permission was allowed and as a result investigation commenced. Before the police was able to find any clue, there came another report this time by a brother of the deceased, named, Abdul Qadoos. Unlike his father, he gave in his report the names of those who he thought were responsible for causing disappearance of the deceased. He also mentioned motive for the same. He accused the present appellant for abduction of the deceased with intent to commit his murder.
3. The report of Abdul Qadoos reads as under:- "I am employed in Army and have come home on two months leave. My brother Naseer Ahmad, aged 22/23 years and unmarried, was living in a separate house, in the village. The house has common courtyard with that of my uncle's Abdul Rashid. My brother had been engaged to Mst.
Rukhsana, daughter of Sabir of village Chamba. Over this engagement Sheri Zaman and Nazamat, sons of Sabir were unhappy. Besides, my uncle's son, Abdul Rashid, who was under detention in a murder case used to send threats to my brother from jail, as there had occurred a hot exchange of words between my brother Naseer Ahmad and uncle Gul Zaman. My brother has been missing since the night of 7-1-1983. In the meanwhile I have been fully satisfied and I firmly believe that my brother Naseer Ahmad has been abducted by Abdur Rashid son of Gul Zaman, Sheri Zaman and Nazamat sons of Sabir of village Chamba, and Gul Abbas son of Bahadur Khan resident of Palanda who is brother-in-law of Sheri Zaman, in order to murder him. I am convinced that the life of my brother is not out of danger. I charge the accused, Abdur Rashid, Sheri Zaman, Nazamat and Gul Abbas for abducting my brother with intent to kill him."
4. The above report (Exh.PA./1) was recorded by Zahir Shah I.M.C. (P.W.9) on 24-1-1983 at Dhoke Gakharan where he happened to be present while conducting an inquiry in pursuance to the report earlier made by father of the deceased whereby he conveyed information to the police about disappearance of the deceased from the village. The report was forthwith despatched to Police Station Khanpur within whose jurisdiction the village fell. It was incorporated in F.I.R. (Exh.PA.) by S.I. Nawab Shah (P.W.12), then posted as S.H.O. At the said police station. In line with it the S.I.
Registered the case under section 364, P.P.C. After so doing the S.I. Also arrived in village Dhoke Gakharan for investigation. In the meantime accused Sheri Zaman had been arrested by I.H.C.
Zahir Shah. The S.I. Undertook his interrogation during which he broke and divulged that he along with other accused appellants, Abdul Rashid, Nazamat and Gul Abbas had murdered deceased Naseer Ahmad and concealed his dead body at a place called Bain-da-Nullah', situated within the limits of village Chamba. He also offered to show the place of murder and also of burial of the dead body. Led by the accused accordingly the S.I. Proceeded to those places accompanied by Mohabat Khan (P.W.2). The accused pointed out both the places. From the place of murder, the S.I.
Picked up blood-stained earth and prepared pointation memo. Exh.P.W.2/1. The place of burial of the dead body was then delved. From there the dead body was exhumed alongwith a gunny bag containing blood-stained earth under memo. Exh.P.W.2/2. In respect of the dead body, the S.I.
Prepared injury-sheet and inquest report Exh.P.W.3/1 and Exh.P.W.3/2 respectively and despatched it to mortuary for post-mortem examination. He also drew up sketch of the place where the deceased was murdered and where his dead body was buried. During the course of investigation the S.I. Also recovered pick-axe (Exh.P.4) and spade (Exh.P.5) at the instance of accused Sheri Zaman from his house. Same were admitted by accused Sheri Zaman to have been used for digging up the place of burial of the deceased's dead body. This was accomplished on 24-1-1983.
5. On the following day i,e, 25-1-1983 the S.I. Took the house search of accused Abdul Rashid and during it took into possession Shalwar (Exh.P.7) and shirt (Exh.P.8) both bearing blood specks. Later on the same day the S.I. Also conducted search in the house of accused Gul Abbas and took into possession from there an S.B. Shotgun (Exh.P.9) alongwith a copy of licence (Exh.P.10) issued in respect of it. The gun was packed and sealed and later on sent to Forensic Science Laboratory for comparison with crime empty (Exh.P.6) picked up from the spot vide memo. Exh.P.W.2/4. Blood- stained earth and other articles bearing blood stains were sent to chemical examiner for detection of blood and its grouping.
6. On 26-1-1983 accused Gul Abbas was arrested. On interrogation by the S.I. During police custody he volunteered to confess and on production before the Illaqa Magistrate, he recorded his confession on 31-1-1983. Accused Abdul Rashid was arrested on 4-2-1983. He pointed out the place of murder and also that of burial of the dead body. At his pointation axe (Exh.P.11) was also recovered.
7. Accused Nizamat was an army employee. For his arrest I.H.C. Zahir Shah (P.W.9) was deputed. He effected his arrest at Bahawalpur and produced him before the S.I. Who took him into custody. He too pointed out the place of occurrence as well as the place of burial of the dead body vide pointation memo. Exh.P.W.6/1.
8. The accused when questioned did not plead guilty to the charge and claimed trial.
9. As seen above, accused Sheri Zaman was first to be arrested and in pursuance to what he divulged, the police got set on the right course to investigate the case and in the process recovered the dead body and arrested the rest of the accused. He also recorded his confession of guilt before the Illaqa Magistrate and so did accused Gul Abbas. The other co-accused pointed out the places of murder and burial of the deceased. As such, evidence to that effect was adduced at the trial. The same consists of the following pieces:-
(1) Confessional statements of accused Sheri Zaman and Gul Abbas
(2) Recovery of dead body.
(3) Recovery of blood-stained earth.
(4) Recovery of blood-stained gunny bag.
(5) Recovery of empty of .12 bore.
(6) Recovery of S.B. Shotgun.
(7) Recovery of pick axe and spade.
(8) Recovery of axe.
(9) Recovery of blood-stained clothes from the house of accused Abdul Rashid
(10) Medical evidence.
10. The trial Court has believed the prosecution evidence and held the accused appellants guilty and convicted and sentenced them as indicated above. In the main it has relied on the confessional statements of accused Sheri Zaman and Gul Abbas for which corroboration in its view was available in the evidence supplied to prove the various recoveries and that of medical examination furnished by Dr. Rahimullah (P.W.3). We would analyse the evidence in the light of arguments of the learned counsel for the appellants at appropriate places.
11. To begin with, the learned appellant's counsel objected with regard to the report (Exh.PA./1) given by brother of the deceased (P.W. Abul Qadoos) and recorded by I.H.C. Zahir Shah (P.W.9) while conducting inquiry under section 156(3), Cr.P.C. In pursuance to the report of father of the deceased, Azeem Khan, which was entered at Police Station Khanpur on 20-1-1983 and is available on record as Exh.P.W.9/X. He submitted that a report having been made earlier on, second report would not be admissible. He placed reliance in this context on PLD 1980 Pesh.
25.
12. It is correct that a report had been made previously by the father of the deceased, but a look at it would show that it contained just an information regarding disappearance of the deceased. It did not go beyond giving that information. It was then not clear as to what had happened to him, if he was alive or dead, and the information accordingly was to the police. But the family continued to ascertain and quite naturally about the whereabouts of the deceased. Their suspicion in the process fell on the accused and when they became fully certain, the brother of the deceased, P.W., Abdul Qadoos, came forward and lodged the second report. Therein while mentioning the accused against whom he held suspicion for causing disappearance of the deceased, it was asserted by him that during the interrugnum through inquiries he had been satisfied that they were the culprits and so he named them. He also disclosed the motive therein due to which the accused could have assassinated the deceased. His report thus laid foundation of the case and in the situation confronted it should have been made. Merely because a report earlier on had come wherein just information had been given in regard to the disappearance of the deceased would not make it inadmissible and liable to be excluded from consideration. And it is apparent that on the prior report no case had been registered. The information conveyed was only entered in the daily diary.
Had a case on the basis of that report been registered, the report of Abdul Qadoos in that case would have been regarded on different footing. But that is not the case. Even otherwise, if not as an F.I.R. It would be eligible to be treated as a statement recorded during investigation.
13. Next the learned counsel submitted that the appellants had no truck to come together and join in a criminal venture. Rather they were on inimical terms and hostile to one another and lived at different distant places. In this respect he pointed out that Mst. Makhni, a sister of accused Gul Abbas, was abducted by accused Abdul Rashid and against him a case on that score was also registered and tried. Though he was acquitted, yet the event would continue to lurk in the mind of relations of the girl and the accused could not have got together to plan the murder.
14. We do observe a reference to the abduction case involving Mst. Makhni, sister of accused Gui Abbas, for which charge against accused Abdul Rashid and others was laid but the case though submitted for trial was not actually tried. It was compounded and ended in acquittal of the accused. No rancour, therefore, could be said to have persisted in the mind of the parties after end of the case by compromise.
15. It is also true that the accused were not living at the same place. Two of them, namely, Abdul Rashid and Nizamat were living in village Dhoke Gakharan. The other two, Sheri Zaman and Gui Abbas, lived in village Chamba and Palanda respectively. But these villages involve short distance inter se. As per statement of P.W. Muhammad Khan the distance between these villages is 1-1/2 or two miles. Same would not be difficult to cover. Hardly it should take half an hour or so for anyone from these villages, to be at one place, if there be a common plan to execute. The accused being closely related could have joined together to murder the deceased.
16. The learned counsel for the appellants then turned to the main basis of the case viz. The confessional statements of accused, Sheri Zaman and Gul Abbas. He submitted that these statements were made under duress, the accused being in police custody and suffering pressure and coercion. Voluntarily the statements were not made. In fact, he objected, before these statements were extracted from the accused they had been held in police custody for a fair length of time and subjected to torture all along. Realizing, therefore, that there was no other way of bringing their miseries to an end, the accused felt obliged to make these statements. Continuing he pointed out that accused Sheri Zaman was arrested on 24-1-1983. The same day he is alleged to have made clean breast disclosure regarding the incident.
17. It cannot be denied that the accused had remained with the police in custody for long before they became willing to make confessional statements. The possibility of third degree methods having been applied in securing confessions thus may be there. But the accused have not alleged anything to that effect before the Magistrate to whom they were produced and who recorded their confessions. Before him they were quite free to say anything and should have told him that due to physical torture to which they had all along been put and seeing no sign of the same coming to an end it appeared to them the only way to get out of police custody. They said nothing of the sort to complain of torture though as per statement of the Magistrate (P.W. Numan Shah) they had been given good time to ponder and reflect, almost an hour or so. They were also seen by the doctor subsequently but found to have suffered no injury. As such we consider the confessional statements to be voluntary.
18. Now the question is if these statements are inculpatory or exculpatory. No doubt can be had with regard to the confession of accused Gul Abbas. It is clearly inculpatory. Relating the story, how the plan was hatched and executed, he had given to himself the role of firing the fatal shot. Owning the shot he stated that on being commanded by acctised Abdul Rashid he fired at the deceased from the place of murder and that of burial of the dead body and nothing thereafter, remained to be divulged by him. He was kept in police custody until 30-1-1983. That day he gave statement and was seat to judicial custody. After having shown the places aforesaid he should not at all have been detained by police, having disclosed whatever he knew in relation to the incident. The only object that his further detention could serve was to somhow persuade him to give a statement of confession. Similarly, accused Gul Abbas had on the very day of his arrest i,e, 26-1-1983 made pointation of the place of murder and of where the dead body lay buried and his subsequent detention in police custody was unjustified. But he too continued to be held in police custody for obtaining confession, which he made after going through torture for six days. The confessions, therefore, he emphasised were unworthy of reliance. In regard to the confession of accused Sheri Zaman, he further submitted, it would not merit consideration being self-exculpatory. He admitted the murder though, he claimed to have played no part in its commission. Thus both the statements of confession deserved to be kept out of consideration, the learned counsel submitted, hiS gun hitting and seriously injuring him. Before however, the deceased collapsed, he added, he was given axe blow thrice by accused Abdul Rashid. Then he dropped down and finished. So about his confession there can be no manner of doubt that it is inculpatory.
19. That of accused of Sheri Zaman is also inculpatory. Whatever he did to contribute to the occurrence has been owned by him. He caused no injury to the deceased, because it was all over when he arrived on the scene, the deceased having already been done to death. He helped in concealing the dead body digging a ditch and burying it there. He has admitted to have done the same, in unmistakable terms. To that extent is the role ascribed to him in the offence by accused Gul Abbas as well in his confession. Both the statements of confession accordingly are inculpatory.
20. At the trial, these statements had been retracted. But as seen, they are true and voluntary and as such could be used against the accused. There is wealth of case-law supporting the proposition that a statement of confession will be acceptable to base conviction on, even without corroboration, if it be found to have a ring of truth and sound voluntary. Clearly these qualifications stand satisfied by the statements.
21. The confessions are also corrborated by recoveries. There had been recovered the dead body of the deceased at the instance of accused Sheri Zaman. There was recovery of blood-stained earth from the place pointed out by him. There was observed and picked up an empty of .12 bore shotgun from near the spot. There was recovery from there of an axe used in the crime. These recoveries, in addition to that of pick-axe and spade, and blood-stained clothes from the house of accused Abdul Rashid leave no room for any doubt that the tragedy was enacted in the manner disclosed by the two accused, Sheri Zaman and Gul Abbas. Otherwise, if they had kept quiet and remained tight lipped, no clue to it could have been found.
22. The learned counsel has looked askance at the recoveries. He has pointed out that the witnesses examined in proof were all interested, being closely related to the deceased, and bearing hostility against the accused. He contended that there were witnesses other than those examined by the police and most of them were disinterested, but deliberately only the relations had been picked up, because those disinterested were not likely to toe the line of prosecution blindly. He pointed out that P.W. Mohabat Khan in whose presence accused Sheri Zaman was shown to have led the police to the spot, where recovery of the dead body, blood-stained earth, and gunny bag containing blood-stained earth was effected, was a maternal uncle's son of the deceased. Similarly P.W. Muhammad Khan in whose presence accused Gul Abbas had shown the place of occurrence to the police, and P.W. Khani Zaman before whom accused Abdul Rashid pointed to the said places were related to the deceased and also inter se.
23. We note that P.W. Mohabat Khan is a nephew of P.W. Muhammad Khan. P.W. Fazal Khan is also his nephew, besides being married to a sister of the deceased. Azeem Khan, father of the deceased, is also a maternal-uncle of P.W. Muhammad Khan. P.W. Khani Zaman is a brother of P.W.
Muhammad Khan. Besides this relationship, it is also established that on a previous occasion some of these witnesses had appeared and deposed against accused Abdul Rashid in criminal proceedings. For instance P.W. Khan Zaman had appeared against him as an eye-witness in a murder case where he was convicted and sentenced to 9 years' R.I.
24. But the values now have radically changed and society as a whole has deteriorated. Where the people now have no interest, they hesitate and refuse to give evidence. Even in cases of very serious nature 4hey do not come forward for evidence. And this is why that open Bazars now serve as suitable venue for perpetrating murders and often the cases fail for lack of evidence and the accused go scot free quite often. Therefore, in respect of a witness what is required to see now is the quality of evidence given. If whatever a witness has stated is found true, it should be accepted, his relationship with the deceased notwithstanding. Except that the witnesses examined here are relatives of the deceased, we discern nothing that would render their testimonies unworthy of credence. Accordingly we would ignore the lapse on the part of prosecution that disinterested witnesses though available had not been examined to prove the recoveries.
25. In regard to the clothes comprising Shalwar Exh.P.7 and shirt Exh.P.8, both bearing blood stains and allegedly recovered from the house of accused Abdul Rashid. It had been contended that they did not belong to him, because they were just ordinary clothes and would be available anywhere in Bazar and that no attempt had been made to fit them on the person of accused Abdul Rashid. The objection is valid, but the recovery itself cannot be doubted, having been made from the house of the accused. No such recovery to any of the other accused had been imputed.
26. A similar objection was raised in respect of the recovery of empty Exh.P.6. It was contended that the empty had been planted. This does not seem correct, because it is in evidence that the empty was recovered on the very first day when the spot was inspected. The possibility of plantation would therefore, be remote.
27. It is apparent that blood-stained earth recovered from the spot and from the gunny bag (Exh.P.3) was sent for chemical examination alongwith the clothes of the accused Abdul Rashid and those of the deceased and the blood thereon was found to be of human origin. It is also in the evidence of Dr. Rahimullah (P.W.3), who conducted the autopsy, that the deceased had suffered death from fire-arm and axe wounds and this fact lends support to the case of prosecution and is in line with the confession of accused Gul Abbas, according to whom, the deceased was both fired at and given axe blows.
28. Basing on the evidence of the doctor to the effect that the death appeared to have occurred 20 days before the autopsy, the learned counsel for the appellants raised the objection it was uncertain as to when the deceased died. If the doctor be believed, continuing he argued, the death could be said to have occurred on or before 5-1-1983 and that would be in direct conflict with the stand of prosecution they having asserted that the deceased was' found to have disappeared on 7-1-1983.
29. The doctor undoubtedly has given the time of death to be 20 days, but that should be on the basis of his observation of the state of the dead body. Giving allowance for the error of human judgment that is likely to occur in such situations, some margin either way will have to be allowed.
Nothing, therefor, seems to us to turn in favour of the accused on the fact that the period of death by the doctor has been given as 20 days.
30. The point of motive was pressed by the learned counsel with great emphasis. He argued that no motive was set up in the report Khan, father of the deceased which was first made to convey information about disappearance of the deceased. And that set up subsequently in the report of Abdul Qadoos, brother of the deceased, had not been proved. Because neither the girl, alleged to have been engaged to the deceased nor her father had been produced to prove the engagement.
The argument is fallacious on the face of it. How would one expect a sister or father to support the case against a brother or son.
31. However, the second motive set up that accused Abdul Rashid had developed hostility against the deceased because of his having been involved in a quarrel with his father over a common land boundary and his sending threats to the deceased from jail we find total lack of evidence and are agreeable to hold that the motive has not been proved. But that will only show that the motive has not been proved and will not necessarily belie the case of prosecution in its entirety or throw it over-board. Intances of murders committed without motive are also there. Motive at times remains hidden in the mind of the accused. Therefore, failure of the prosecution to prove the motive could not be said to have totally destroyed the case.
32. An objection was also raised that the deceased was a man of immoral character and might have been done to death elsewhere and not on the place from where his dead body was recovered. We observe not even an iota of evidence showing that the deceased was a man of immoral character or was killed elsewhere.
33. An attempt was also made to capitalize on admission contained in the statement of P.W.
Mohabat to the effect that accused Sheri Zaman was in custody of the police on the night of 23-1- 1983 and the report made next day by P.W. Abdul Qadoos was based on the disclosures made by the accused during interrogation that night. We treat the admission as a gratuitous concession.
After all the witness was also related to the accused and should have shown some favour to them.
Even otherwise no substantial benefit could accrue to the accused from this defect, because, the report earlier made would remain in the field.
34. Looking at the case in the light of confessions of two accused persons, namely, Sheri Zaman and Gul Abbas, the evidence of recoveries and medical examination we regard it to have been proved to a reasonable extent and accordingly we endorse the judgment of the learned trial Judge and dismiss the appeal.