The appellant Mureed son of Akbar Brimani by caste was tried by the learned IIIrd Additional Sessions Judge, Dadu for the offence under section 302, P.P.C. Read with section 34, P.P.C. For committing murder of the deceased Karimdad on 20-2-1984, in furtherance of the common intention with absconding accused Lateef Panhwar by inflicting knife injuries and vide judgment dated 27-7-1998. Convicted and sentenced to imprisonment for life, with fine of Rs,25,000, in case of non-payment of fine, further imprisonment for two years in lieu of fine. The appellant was also directed to pay compensation in the sum of Rs,25,000 to the heirs of the deceased non-payment to entail further imprisonment for two years in lieu thereof.
2. The appellant has questioned the legality of his conviction and sentence by this appeal.
3. On 20-2-1987, at about 11-32 a.m., A.S.-I. Muhammad Nawaz Shah, Incharge of Police Station Dadu received an information on phone that one person was being murdered, by two persons at Railway Crossing Dadu, by causing him knife injuries. Said A.S.-I. Muhammad Nawaz Shah alongwith his subordinates, consisting of (i) H.C. Gul Muhammad. (ii) H.C.GhulamHyder, (iii)
Constable Muhammad Yousuf, (iv) H.C. Shah Muhammad, (v) Constable Muhammad Nawaz, proceeded to Railway Crossing and when they reached near Railway Crossing, they found one person -lying on the ground and two persons were giving knife blows to-him. Said persons, on seeing police party left the injured and ran towards the western side. A.S.-I. Inquired from the injured about the names, who disclosed the names of attackers "LateefPanhwar" and his friend "MureedBrimani", who after giving him injuries were running away. A.S.-I. Muhammad Nawaz Shah, left H.C. Gul Muhammad. At the Vardat, with direction to take the injured to the Hospital for treatment. A.S.-I. Muhammad Nawaz Shah alongwith other subordinates, chased the culprits and apprehended them near power house, adjacent Akhund Petrol Pump, at about 1-00 p.m. The apprehended culprits disclosed their names as Lateef son of Ibrahim Panhwar and Mureed, by caste Brimani, the present appellant. Their clothes were stained with blood and they had blood- stained knives. They were arrested and knives were secured under the memo prepared, in presence of Mashirs H.C. Shah Muhammad and H.C. GhulamHyder. The accused were brought to the Civil Hospital where they came to know that injured Karim Dad has expired. The accused were brought to the police station, where the F.I.R. Was lodged. A.S.-I. Muhammad Nawaz Shah inspected the Vardat, under the memo. OfVardat and recovered the blood-stained clothes of accused. The articles seized; such as blood-stained knives, blood-stained clothes of the accused and the deceased, and the bloodstained earth from the Vardat, were sent for chemical analysis.
4. The post-mortem of the dead body' was conducted by Dr.AliBux, Medical Officer, Civil Hospital, Dadu, on the same day, the dead body was identified by Muhammad Ismail and Khan Muhammad brother and cousin of the deceased. The dead body was of Muslim male aged about 40 years.
Rigor mortis were present over whole body post-mortem lividity was present over back of the body.
On external examination, he found the following damages:--
(1) An incised wound measuring 3.5 c.m. x 0.5 c.m. x .1-0 c.m. Lying transversely over middle of chest at mid sternum.
(2) An incised wound oblique measuring 3 c.m. x 0.5 c.m. x 1 c.m. Over second intercostal space on left side on chest just near to left sternal border.
(3) An incised wound oblique measuring 3.5 c.m. x 0.5 c.m. x 1 c.m. Below and parallel injury No,2 on 3rd intercostal space.
(4) An incised wound oblique measuring 3 c.m. x 0.5 c.m. x 1 c.m. As forth intercostal space on mid clavicular line of right side of chest.
(5) An incised wound transfers measuring 6 c.m. x 2 c.m. Cavity over mid abdomen below right side of umblicus.
(6) An incised wound oblique measuring 2.5 c.m. x 1.5 c.m. x cavity deep over left side of chest near left costal margins.
(7) An incised wound measuring 3 c.m. x 2 c.m. x cavity deep along posterior axillary line near angle of left scapula.
(8) Incised wound 4 c.m. x 2 c.m. x tissue deep over lateral aspect of left buttock.
(9) Incised wound measuring 2.5 c.m. x 1 c.m. x skin in deep over back of chest in between 2 scapulae.
(10) Incised wound 1.5 c.m. x 1 c.m. x skin deep at middle of vartibral columns.
(11) Incised wound 8 c.m. x 3 c.m. x 1 over lateral aspect of left upper arm near elbow-joint.
(12) Incised wound 3 c.m. x 1.5 c.m. x cavity deep over lateral aspect of right side of chest just above costal margins.
(13) Incised wound 2.5 c.m. x 1 c.m. x tissue deep over lateral aspect of right side of chest just below injury No,12.
(14) An incised wound 3 c.m. x 1 c.m. x tissue deep over right side of chest mid axillary line.
(15) Incised wound oblique 4 c.m. x 1 c.m. x 1.5 c.m. Over medial side of right eyeball.
(16) Incised wound 6 c.m. x 1 c.m. x 1 c.m. Across, right side of nose.
(17) Incised wound 4 c.m. x 1 c.m. x skin deep over right eye-brow extending to lateral side of right eye ball.
(18) Incised wound 4 c.m. x 1 c.m. x 0.5 c.m. Over anterior aspect of right forearm.
(19) Incised wound 1 c.m. x 0.5 c.m. x 0.5 over left side of upper lip. On internal examination, he found the following damages:-- ' Chest wall perforated at the site of injuries on either sides. Ribs normal Both pleura both lungs raptured. Left side of pericardium slightly cut. Left side of heart slightly perforated. Heart empty chest cavity full with blood.Abdominal wall reptured at the site of injury.Peritoniumruptured blow umblicus. Small intestine raptured at various points. Rest of the organs were normal.
' The Medical Officer was of the opinion from the external as well as internal examination of the dead body that death was due to hemorrhage,shock and damage to vital organs such as lungs and heart as a result of injury Nos. 2, 3, 4, 6, 7, 12, 13 and 14 which were sufficient to cause death in ordinary course of nature individually or collectively. Injuries were ante-mortem in nature and appeared to have been caused by sharp cutting weapon like knife or dagger. The time between injuries and death was about half an hour. Time between death and post-mortem was about 3 hours.
5. The appellant Mureed was produced for recording of his confessional statement, which was recorded on 4-3-1987, by Mr. Abdul Majeed Mendharo, Resident Magistrate, Dadu.
6. After the completion of the investigation, the appellant Mureed and co-accused Lateef were put to trial, accused Lateef absconded during the trial.
7. Appellant Mureed pleaded not guilty to the charge and claimed his trial.
8. The prosecution examined Allah Dino (P.W 1), Khan Muhammad (P.W 2), Gul Muhammad (P.W 3), Shah Muhammad (P.W 4), Dr. Ali Btix (P.W 5), Ghulam Muhammad (P.W 6), A.S.-I. Muhammad Nawaz Shah, the Investigating Officer and the Resident Magistrate, namely, Abdul MajeedMendharo, who had recorded the confession of the appellant, could not be examined due to their death. The signature and handwriting of Investigating Officer was proved through P.W Gul Muhammad, on memos., whereas, P.W. Ghulam Muhammad was examined, who produced the confessional statement of the appellant and proved the signature of Resident Magistrate.
' Blood-stained earth, clothes of the deceased, clothes of the accused with blood-stained weapons i,e, blood-stained knives, were dispatched to the Chemical Analyst. The report of Chemical Examiner was brought through statement as Exh.28-A by the Deputy Attorney, which was in positive.
9. In his statement recorded under section 342, Cr.P.C, the appellant has denied the prosecution case. He did not examine himself on oath. He also led no defence.
10. On the assessm ent of the evidence, the learned Bird Additional Sessions Judge, Dadu, found the appellant guilty and convicted him with the sentence stated hereinabove.
11. The case of the prosecution rests upon the following pieces of evidence:--
(1) Ocular testimony, consisting of P. Ws. Ghulam Muhammad and Shah Muhammad.
(2) Recovery of blood-stained clothes from the person of the appellantand recovery of blood- stained knife from him at the time of his arrest.
(3) Medical evidence, and
(4) Lastly the confessional statement of the appellant.
12. With the assistance of Mr. Allah BachayoSoomro, learned counsel for the appellant and Mr.Anwar Ansari, learned counsel for the State, I have perused the evidence and the material brought during the trial, against the appellant, by the prosecution.
13. There is no denial of the fact that the incident is of day time occurrence of about 11-32 a.m. The witnesses are from police, who attracted on the information received by them of the occurrence on phone and claimed to have witnessed the same.
' The learned Additional Sessions Judge on over all assessments of the evidence, concluded that the prosecution was successful in proving the guilt of the appellant, beyond any reasonable doubt..
In reaching such conclusion, the learned Additional Sessions Judge accepted the evidence furnished by P.W Shah Muhammad who was one of the members of the party, headed by A.S.-I.
Syed Muhammad Nawaz Shah, who received the telephonic message regarding the incident and came to the Vardat. The learned Additional Sessions Judge, found the corroboration to the evidence of P.W. Shah Muhammad through recovery of blood-stained knives and blood-stained clothes. The reports in respect of both, were in positive. Further corroboration was found from the medical evidence as the Medical Officer, who had conducted the post-mortem, noticed as many as 19 injuries, all were of sharp cutting weapons, such as knife or dagger.
15. The learned Additional Sessions Judge excluded the confession, solely on the ground that the confession of the appellant, was recorded with delay and the appellant remained in police custody for about 14 days, before recording of his confession.
16. Mr. Allah Bachayov Soomro, learned counsel for the appellant has urged that the prosecution has failed to bring the guilt, against the appellant beyond any shadow of doubt, as such the judgment is liable to be set aside and the appellant is entitled for acquittal. Elaborating his contentions, he contended that the place of incident is in the Town on the Road at Railway Crossing. The presence of persons adjacent to Vardat at the time of incident is admitted by witness Shah Muhammad, but independent witness present at Vardat has not been examined in support of the prosecution version and that this has serious reflection on the credibility of the prosecution case. He also contended that P.W. Shah Muhammad is from police and his evidence should not be believed.
17. I am not impressed by these submissions. The police personnel is good witness as any other witness and for the purpose of discarding evidence of a police witness, something has to be essentially brought on record, to prove motivation, for making false testimony. To prove motivation, no suggestion in this regard was put to the witness when he was in witness-box. So far the non- association of the witness from the public is concerned, it is now a hard fact that generally people in our country hesitate to come forward as witness, to give evidence in such cases, because they do not wish to get themselves involved in other people's problem. Probably, there is good reason for their hesitation, because by appearing as witness in a criminal case, one is likely to incur the wrath and enmity of the accused persons and their party men. The Court has come across a large number of cases, where people were murdered simply because they had dared to appear as witness in such cases. What is still more disheartening that the Law Enforcing Agencies hardly afford any protection to those who have the requisite public spirit and are willing to come forward and testify against the criminals and thus incur their hostility. The Court has also noticed, in large number of cases that wherever the F.I.R. Contains the name of some independent or unrelated person as witness of the occurrence alongwith some relative of the accused, as witness of the occurrence, the former usually resile from their earlier statement or at least lend to make concession in favour of the accused and have quite often to be declared hostile. The cause appears for this, same as mentioned above, namely that independent or unconnected witnesses see no reasons to endanger their life for what they considered to be none of their business and in many cases such witnesses are proved to be won over by the inducements or to resile under threat. Once it is recognized such conditions are prevailing in country that some persons by way of inducement or threat has been put on some prosecution witness, it cannot be said that an adverse presumption must naturally arise against the prosecution for not having produced nearby residents of the area If Court finds that some independent witnesses have witnessed the incident, withstood the test of cross-examination and the testimony is corroborated by reliable circumstantial evidence, the Court should not hesitate to believe them and rely upon their testimony.
18. Mr. Allah Bachayo Soomro, with vehemence contended that there are two memos. For recovery of knives which make the recovery of knives doubtful. Thus recovery has no corroborative value.
This contention has also not impressed me for the reasons that the knives were secured from the accused, under the memo of recovery and arrest (Exh.18) on the spot, at the time of arrest, whereas, knives so secured were sealed separately under the memos. Exhs.12 and 13. This plea has been raised,without examining the contents of the above memos.
19. Mr. Allah Bachayo Soomro also contended that the learned Additional Sessions Judge has not complied with the mandatory provision of section 364, Cr.P.C, as the certificate required, under the provision of section 364, has not been appended by the learned Additional Sessions Judge, in his own hand.
20. I have examined Exh. 29, which is the statement of Mureed appellant in terms of section 342, Cr.P.C. The same has been recorded by learned Judge himself and requisite certificate has been appended by the learned Judge, therefore, this contention has no force,
21. Now I propose to deal with the contention raised on behalf of the State, whereby the counsel for the State has contended that the learned Additional Sessions Judge had discarded two material pieces of evidence available against the appellant i,e, (1) the dying declaration of deceased Karimdad and (2) confessional statement.
' The dying declaration has been spelt by the State Counsel on the basis of statement by P. W. Shah Muhammad before the Court and same fact has been stated in the F.I.R, in the following terms:-- "That A.S.-I. Syed Muhammad Nawaz Shah inquired from injured Karimdad about the names of culprits who disclosed their names as LatifPanhawar and MureedBirarnani."
' Such fact has also been incorporated by A.S.-I. Syed Muhammad Nawaz Shah, who recorded the F.I.R on behalf of the Stake. Though during the trial, the aforesaid piece of evidence was not treated as dying declaration nor any effort was made on behalf of the prosecution to press it as piece of evidence against the appellant.
22. No question about this oral dying declaration was put to the appellant in his statement recorded under section 342, Cr.P.C. To explain this position. No reliance, therefore, can be placed upon this circumstance.
23. It may be stated that a dying declaration, which is relevant, is a violent exception to almost all the fundamental rules of law of evidence. All Courts have agreed, with more or less difference of language, that the approach of death produces a state of mind in which the utterance of a dying person are to be taken as free from all ordinary motives to misstate. But cases are not uncommon of false declaration being made on behalf of a dying man. The Courts have emphasized that such declaration must be in presence of doctor, Magistrate or independent officials. A conviction, even in a case inviting capital punishment, may be based on dying declaration alone, but the Court must be satisfied that it bears all the marks of truth.
24. While examining the value of dying declaration made in almost similar circumstances, Aslam Riaz Hussain, J. (as he then was) observed in Abdul Majid alias Majha v. The State (1976 PCr.LJ 545): "Such statement was not made in presence of doctors, Magistrate or any other independent officials and the prosecution never pressed it as piece of evidence against the appellant. The case-therefore, hinges on the reliability of the evidence".
25. As already said, no question about the so said dying declaration was put to the appellant in his statement recorded under section 342, Cr.P.C. This section is based on the principle involved in the maxim Audi alter ampartem, that no one should be condemned unheard. Material evidence should be brought to the notice of accused to enable him to give an explanation. Therefore, the so said dying declaration has no evidentiary value. I will examine the second contention raised by the State Counsel, whether the trial Court was right by discarding the confession of the appellant, while discussing the confession of the appellant in later part of the judgment.
26. The death of the deceased Karimdad in the manner alleged by the prosecution has not been disputed. P.W. All Bux, the Medical Officer. Who had conducted the post-mortem on the dead body of deceased Karimdad, was examined at the trial. During the examination of the dead body, the Medical Officer noticed 19 incised injuries. Out of 19 injuries Nos.2.
3. 4. 6. 7, 12. 13 and 14 were found sufficient to cause death in ordinary course of nature individually or collectively. Therefore, there is sufficient evidence on record to prove that deceased Karimdad died as a result of incised injuries. The Medical Officer was also of the opinion that the injuries were caused by sharp cutting weapon like knife or dagger.
27. I will now address myself to the consideration of the question, whether or not the guilt of the appellant was established beyond all reasonable doubt. Thus the question is whether the appellant with absconding accused Latif were author of these injuries. The prosecution has examined P.W. Shah Muhammad, he was one of the members of police party headed by A.S.-I.
Syed Muhammad Nawaz Shah (not examined), who received information at the police station, at a distance of 400 paces from the Wardat. He is eye-witness, witness of arrest of the appellant and co-accused. Therefore, I propose to examine the evidence of P.W. Shah Muhammad. He deposed that when they reached near Railway Crossing, they saw two persons inflicting injuries to Karimdad, after seeing them culprits ran away, he alongwith others including A.S.-I. Syed Muhammad Nawaz Shah followed the accused, leaving Gul Muhammad at injured with direction to remove him, to Civil Hospital. They apprehended both the accused near Akhund Petrol Pump, knives were secured from accused in his presence, he is witness of arrest and recovery. The memo.
Has been brought on record (Exh.18). It contains the fact that at the time of arrest the appellant's clothes were stained with blood. The blood-stained clothes could not be seized as replacement could not be arranged at the Vardat. The same was secured afterwards, on arranging the clothes through Exh.21. The evidence of this witness has not been shattered during cross-examination.
28. Mr. Allah Bachayo Soomro, learned counsel for the appellant contended that even the place of arrest is doubtful, solely, on the ground that in memo. Of arrest and recovery (Exh.19), the place of arrest has been shown near Grid Station, whereas, according to P.W. Shah Muhammad, the appellant was arrested adjacent Akhund Petrol Pump. It appears that Petrol Pump and Grid Station/Power House are adjacent to each other as clarified by the witness Shah Muhammad in cross-examination, that Sui Gas Colony is at calls distance from Power House where they arrested the accused, thus there is no doubt as to the place of arrest. The evidence of Shah Muhammad is corroborated by the medical evidence that the deceased died as a result of knife injuries. Mureed appellant on 4-3-1987, during the course of investigation by the police, made confession under section 164, Cr.P.C, which was recorded by Abdul Majeed Mandharo, Resident Magistrate. The learned trial Judge has discarded the judicial confession on the ground that appellant had been in police custody for some time before he was produced before the Magistrate for recording of his confession.
29. Learned State Counsel has urged that mere delay in recording the confession would not be a ground for rejection of the judicial confession as confession would not be irrelevant or inadmissible on that ground.
30. The question whether or not the Magistrate who records a confession under section 164 of the Code of Criminal Procedure, was satisfied that the confession was voluntarily made. Subsection (3) of section 164 of the Code of Criminal Procedure, which governs the matter is in the following terms:-- "A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and when he records any confession, he shall make a memorandum at the foot of such record to the following effect:-- I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct,and it contains a full and true account of the statement made by him."
(Sd.)
A.B., Magistrate."
31. Though this subsection makes it incumbent that the person brought before a Magistrate during the course of investigation to make a confession should be told that he was not bound to make a confession, and if he does so, it may be used as evidence against him yet it leaves it to the Magistrate to ask such questions as he considers necessary to satisfy himself that the confession was being made voluntarily. The mere fact that the accused remained in police custody for some time, cannot be held to prove that the confession was the result of inducement, threat or promise.
The confession will be irrelevant under Article 37 of the Qanun-e-Shahadat Order, only if it appears to the I Court called upon to deal with the confession that it had resulted from inducement, threat or promise proceeding from a person in authority. It is for the Court, before which a confession is sought to be used to decide whether or not Article 37 of Qanun-e-Shahadat Order hits the confession and if a Court is satisfied that the confession was voluntary would not be ground for holding that the confession was irrelevant or inadmissible. In the statement that Mureed made before the learned trial Judge he took up the position that his signature was obtained on written paper only. The plea was not taken that it was a result of police torture or pressure. There is absolutely nothing on record to even suggest that what Mureed appellant stated with regard to his confession was correct. As worded Article 37 of the Qanun-e-Shahadat Order does not require strict proof that the confession has resulted from inducement, threat or promise but that does not mean that the Court can declare the confession irrelevant even if there is no material to suggest that the confession was not voluntary.
32. In Syed SharifuddinPirzada v. Sohbat Khan (PLD 1972 SC 363), Supreme Court was of the opinion that the reasons given by the learned trial Court and the High Court for discarding the judicial confession on the ground that some time before they were produced before the Magistrate for getting their confession recorded were unsatisfactorily. The facts that the Sohbat Khan was for some time in the police custody does not lead to the conclusion that he was tortured.
33. Therefore, I am of the view that the view taken by the learned trial Court for discarding the judicial confession on the ground that the accused remained in police custody for about 14 days was not justified.
33-A. The Magistrate, who had recorded the confessional statement of Mureed appellant namely, Abdul MajeedMendharo, the then Resident Magistrate, Dadu could not be examined but the confessional statement hasbeen brought on record through Ghulam Muhammad, Clerk. The requisite certificate in terms of subsection (3) of section 164, Cr.P.C. Has been appended by the learned Magistrate that the confession was voluntary and it contains full and true account of the statement made by the appellant. The appellant has confessed as follows: "Accused Abdul Latif is my friend who asked me for favour in respect of the matter of ladyMst.
LalKhatoon. Thereafter, I alongwith him acquired a knife and attacked on deceased Karimdad and caused him knife blow. My intention was not to commit his murder but he died due to sustaining deep injuries, I admit to have caused him injuries. Accused Abdul Latif had said that he would take me to Karachi. This murder was committed as deceased Karimdad had not given the hand of Mst.
LalKhatoon to Abdul Latif."
L.T.I. Of accused Mureed s/o Akbar."
34. The retracted confession of the appellant Mureed is corroborated in material particulars by medical evidence that deceased received knife injuries and supports the evidence of P.W Shah Muhammad, who has no animus against Mureed appellant to involve him by substituting with the real culprits. The incident is of broad daylight, the question of mistaken identity or substitution is not possible. The appellant was found causing injuries to the deceased and on seeing police party ran away from the Vardat with crime weapon and was arrested while decamping from the Vardat.
These incriminating materials are sufficient to prove the guilt of Mureed appellant beyond any reasonable doubt and to record the conviction. Therefore, I am of the view that the appeal has no merit, which is liable to be dismissed. Consequently, the appeal is dismissed. The conviction and sentence recorded by learned trial Court are maintained.