GHULAM RASUL Versus THE STATE

MUHAMMAD RAFIQ TARAR, J. -Ghulam Rasul (35) son of Muhammad Din and Mst. Rehmatey (20) widow of Inayat, resident of Chak No. 388/T. D. A, were tried by the learned Additional Sessions Judge, Muzaffargarh, under section 302/34, P. P. C. on the allegations that on the night between 22nd and 23rd December, 1975 they, in furtherance of their common intention, strangulated Inayat deceased to death, in the area of Chak No. 353/T. D. A. By judgment dated 12th April, 1978 both of them were convicted on the said charge. Ghulam Rasul was sentenced to death subject to confirmation by this Court and a fine of Rs. 500 while Mst. Rehmatey was awarded imprisonment for life and a fine of Rs. 500. In default of payment of fine, they were ordered to undergo R. I. for six months each. They were also ordered to pay Rs. 500 each as compensation to the legal heirs of the deceased or in default to suffer R. I. for six months each. Ghulam Rasul appellant has filed Criminal Appeal No. 426/78 through jail and Mst. Rehmatey has filed Criminal Appeal No. 410/78. The case is also before us on reference for confirmation of the death sentence awarded to Ghulam Rasul appellant. The appeals and the reference shall be disposed of by this judgment.

2. Inayat deceased was the husband of Mst. Rehmatey appellant. The wife of Ghulam Rasul appellant is the real sister of the deceased.

3. According to the F. I. R., the case of the prosecution is that Ghulam Rasul appellant was residing in Chak No. 353/T. D. A. Five or six months prior to the occurrence, Inayat deceased came to the said Chak from village Sherewala, District Gujrat, in order to find out some land for cultivation as a tenant. Ghulam Rasul appellant developed illicit relations with his wife Mst. Rehmatey appellant and in pursuance of a pre-arranged plan, after informing the people that Inayat had died, buried his dead body with undue haste without waiting for his relatives. The people started suspecting that Inayat and Mst. Rehmatey had killed the deceased. The villagers, namely, Boote Khan, Niaz Ahmad, Arif and others who saw the dead body also suspected some foul play in the matter. On 27th December, 1975 at 10 a.m., Nemat Ali Lambardar made the statement Exh. P. B. before Ghulam Sarwar A. S. I. at Chak No. 353/ T. D. A., incorporating the above facts.

4. After recording the statement Exh. P. B. the A. S. I. forwarded it to Police Station Leiah for entry in the daily diary and deputed Haqnawaz constable to guard the grave of Inayat deceased. On the same day he made application Exh. P. G. before Assistant Commissioner, Leiah, for exhumation of the dead body which was marked to Resident Magistrate, Leiah. On 28th December 1975 Mr. Muhammad Amin, Resident Magistrate, Leiah, accompanied by the aforesaid A. S. I. and Dr. Manzur Ahmad Malik, Medical Officer, Government Thal Hospital, Leiah, reached the graveyard of Chak No. 353/T. D. A. The dead body was exhumed under his orders. The doctor conducted the post-mortem examination at the spot and opined that the deceased had died due to strangulation and twisting of testicles. The Magistrate thereupon passed order Exh. P. H. for registration of the case under section 302, P. P. C.

5. The doctor handed over coffin P. 1 to the A. S. I. vide memo Exh. P. C. The A. S. I. arrested both the appellants on 1 st January, 1976. On the same day Ghulam 'Rasul appellant, while in custody, led to the recovery of blood-stained safa P. 2 from his kotho which was made into a sealed parcel vide memo Exh. P. D. On the same day Mst. Rehmatey, while in police custody, led to the recovery of chadar P. 3 from a chopper which was taken into possession vide memo Exh. P. E. On 2nd January 1972 the A. S. I. made an application to the Resident Magistrate, Leiah, for recording the confessional statement of the appellants. On the same day Mst. Rehmatey and Ghulam Rasul made statements Exh. P. L./3 and Exh. P.M. /3 before the Resident Magistrate wherein they admitted that they had developed illicit relations with each other and eleven days before they had strangulated the deceased to death. After the investiga tion both the appellants were challaned.

6. In support of its case the prosecution examined ten witnesses in all.' There is no eye-witness of the occurrence and the case of the prosecution mainly rests on the judicial confessions made by the appellants before the Resident Magistrate, Leiah. The prosecution also relied on the medical evidence and the recovery of safa and chadar at the instance of the appellants.

7. The appellants pleaded not guilty to the charge. Ghulam Rasul appellant when asked whether he had confessed .his guilt before the Magistrate, made the following statement "My judicial remand was not obtained nor I was produced before a Magistrate for remand. On 1 st January, 1976 I was brought to P. S. Leiah by A. S. I. Ghulam Sarwar at about Isha prayers time and was confined in a barrack of the police station. During the night the A. S. I. tortured me and compelled me to make a prepared statement before the Magistrate. In the morning A. S. I. Ghulam Sarwar produced me before R. M. Leiah who administered oath to me and then the P. S. I. examined me. 1 made the statement under fear of torture. After my examination I was again handed over by the Magistrate to the said A. S. I. My statement was not read out to me by the Magistrate. I have been falsely implicated in this case at the instance of Inayat Lambardar.

I was assured by the A. S. I. that if I made the desired statement I will be let off and made a witness against the accused challaned by him. On account of torture and inducement I was compelled to make this statement. It was not voluntarily made by me."

Mst. Rehmatey also made a similar statement. No evidence was led in defence.

8. The learned trial Judge accepted the confessional statements of the appellants and found their corroboration in the medical evidence and the recoveries. He, therefore, convicted and sentenced the appellants as mentioned above.

9. The learned counsel for the appellants questioned the legality and admissibility of the confessional statements on various grounds. He submitted that these statements were recorded on oath ; the appellants were kept in Police lock-up before their confessions were recorded and no assurance was given to them that they would not be handed over to Police whether they made the confessions or not. He further submitted that there was no other evidence to connect the appellants with the commission of offence and they are entitled to acquittal. We also heard Ghulam Rasul appellant who submitted that the confessional statements were the result of coercion and torture by the Police. The learned State counsel found it difficult to support the conviction under section 302, P. P. C. but contended that a case under section 201 P. P. C. was made out against the appellants.

10. After going through the record, we feel inclined to the view that for various reasons the confessional statements Exh. P. L./3 and Exh. P. M./3 have to be excluded from consideration. These statements were recorded by Mr. Muhammad Amin, Resident Magistrate, Leiah. Both the statements were recorded on oath. The Magistrate, however, came up with the explanation that the words "on S.A." on both the statements were written by him inadvertently, but on the face of it this explanation is absurd and seems to have been advanced by the Magistrate to cover his complete ignorance about the elementary principles governing confessions and mode of recording such statements. In both the confessional statements the words Ba-lqrar-Saleh" have been written twice. The Magistrate admitted that the statements were read over to the appellants. If it was so, the words "Ba-Iqrar-Saleh" which repeatedly find mention in the statements would not have escaped his attention and this leads to the irresistable conclusion that the Magistrate completely lacked knowledge of the fact that a confessional statement recorded on oath is illegal. In Muhammad Bakhsh v. The State (P L D 1956 S C 420) it was held that administration of oath to is an accused is an illegality which cannot be cured on any principle of consent, waiver or estoppel and its rejection- must follow as a matter of course from that illegality.

11. Another circumstance which raises a serious doubt as to the voluntary nature of the confessions is that the Magistrate did not put any question to the appellants as to for bow long they had remained in police custody before their production in Court nor did he assure them that they would not be handed over to the Police whether they make the confession or not. The Magistrate came up with the explanation that since the appellants were brought from the judicial lock-up he did not consider it necessary to do so and this explanation is also devoid of reason. There 'is sufficient evidence on the record to show that the so-called judicial lock-up, to all intents and purposes, was a Police lock-up. The Magistrate admitted that the said lock-up is just opposite the Police station. The Investigating Officer, namely, Ghulam Sarwar A. S. I. admitted that the said lock-up is in front of the police station on one side of its gate at a distance of six yards from it ; a Roznamcha is maintained at the lock-up which is sent to the S. -P. Muzaffargarh through S. H. O. Leiah and that a Head Constable is Incharge of the said lock-up. His evidence further shows that be arrested both the appellants at about 10 a.m. on 1st January 1976 ; returned to the police station along with them the same day at 6 or 7 p .m. and produced them before the Resident Magistrate for recording their confessional statements on the following morning at 9 a.m. There are thus genuine reasons to apprehend that the influence of the police continued on the mind of the appellants when their confessional statements were recorded. Since no assurance was given to them that they would not be handed over to the Police whether e they made the confessions or not and they were sent back to the so-called judicial lock-up which as already observed, to all intents and purposes, was a Police lock-up, the confessions must necessarily be suspected to be not voluntary and the same are accordingly excluded from consideration.

12. There is no other evidence to connect the appellants with the commission of crime. The prosecution examined Muhammad Hussain P. W. 3 and Rehmat Ali P. W. 4 to make out a case that on their visit to the house of Ghulam Rasul appellant they saw the dead body of Inayat deceased lying covered with a piece of cloth ; they asked him that they would manage the burial of the deceased but he told them that he himself would do it and forbade them from coming near the dead body. Both these P. Ws. turned hostile and were cross-examined by the A. P. P. with the permission of the Court. In cross-examination by the A. P. P. Muhammad Hussain P. W. admitted that Ghulam Rasul asked him and his companion Rehmat Ali to keep away from the dead body. He further admitted that after the funeral prayer the participants thereof wanted to see the face of the deceased but Ghulam Rasul appellant did not allow them to do so. Rehmat Ali P. W. 4 however, denied all these facts. . The evidence of a hostile witness normally loses all the evidentiary value and can neither be used in favour of the prosecution ` nor against it. Even if it be assumed that Ghulam Rasul appellant had asked the aforesaid two witnesses to keep away from the dead body it would only give rise to a suspicion which howsoever strong cannot take the place of positive proof.

13. The last piece of evidence relied upon by the prosecution is the recovery of safa at the instance of Ghulam Rasul appellant and that of a chadar on the pointing out of Mst. Rehmatey. Both these cloths are of common patern and there is no evidence that the same belonged to the appellants.

14. Having gone through the file we do not find any evidence thereon to make out a case under section 201, P. P. C.

15. For the foregoing reasons we feel inclined to the view that the prosecution has failed to prove its case against any of the appellants and they are entitled to acquittal. We, therefore, allow the appeals, set aside D the conviction and sentence of the appellants and acquit them of the charge against them. Mst. Rehmatey is on bail. She shall be discharged from her bail bond. Ghulam Rasul appellant shall be set at liberty forthwith if not required to be detained to any other case. His death sentence is not confirmed.

Appeal allowed.