P L D 1964 (W (PLP)

KHAMISANI, J.

‑The appellants Lakhmir and Ishaque have been convicted under section 302 read with section 34, P. P. C. and sentenced to transportation for life. The appellant Shahmir has been convicted under section 201, P. P. C. and sentenced to suffer rigorous imprisonment for three years. The appellants have filed this appeal.

2. The facts of the prosecution case briefly are that certain survey numbers of Government land were cultivated on Yaksala basis by Kambir, the brother of Lakhmir and Shahmir about which the deceased Daim had given an offer for purchase. It is alleged that the appellants Lakhmir and Shahmir did not like ft and therefore wanted to put an end to the life of Daim for the purpose of removing an impediment in their way for being in possession of that land. They had therefore conspired to kill him.

3. The deceased Daim had received a message from Haji Abdul Hakim, P. W. 15, to meet him. The deceased consequently left his village with a view to go to the village of Haji Abdul Hakim. He, however, never returned. The relations of deceased Daim on coming to know that he had not reached the place of Haji Abdul Hakim apprehended a foul play and went out in his search. On being able to get no trace of him, Sobzal, P. W. 3, lodged his first information report, Exh. 15, on 7th November 1961, at 11 p.m., at Faizganj Police‑Station which was at a distance of about 14 miles from the scene of offence.

4. The police came to the scene of offence and prepared the mashirnama of the alleged vardat where the deceased Daim had been killed. The body of the deceased was found floating in the distributory and it was consequently secured on 10th November 1961. From 7th November 1961, till 13th November 1961, nothing by way of investigation was done although seven names of suspects including the names of the three appellants were mentioned in the first information report by the first informant. On 13th November 1961, the statement of Saindito, P. W. 10, was recorded. On 14th November 1961, the present three appellants were produced by the Head Constable before Nazir Hussain Shah, Station House Officer, who was in charge of the investigation of the case. These three appellants probably agreed to make a confession on that very day and were con sequently produced on 15th November 1961, for their confessions before Muhammad Ashraf, mukhtiarkar and First Class Magistrate. Their confessions were recorded. They are Exhs. 8, 10 and

6. The remaining witnesses produced in this case were examined on 14th November 1961. The appellant Lakhmir on 14th November 1961, the day on which he was arrested, also took the police to a place at a distance of about 200 paces from his house and produced therefrom two bloodstained hatchets from Sar grass bushes. These hatchets were secured by Nazir Hussain Shah, P. W. 17, in the presence of mashirs Abdul Hakim and Noor Muhammad. Mashirnama, Exh. 34, was prepared. The report of the Chemical Analyser, Exh. 47, indicates that there was human blood on these hatchets. footprint test was also held in which the tracker, Hamzo, P. W. 6, picked out the prints of all the three appellants for which mashirnama, Exh. 20, was made. After the usual investigation was completed, the appellants were challaned.

5. The appellants, when questioned, denied the allegations made against them and asserted that the case against them was false. They have, however, examined no witness in defence. The question whether Daim received injuries and died on account of them is not disputed. The evidence of Dr. Zahid Husain, Exh. 44, also indicates that there were as many as six incised injuries on the person of the deceased which, according to him, were sufficient in the ordinary course of nature to cause death. The body of the deceased that was produced before the doctor was without the head. The evidence of the witnesses also establishes this point beyond any reasonable doubt.

7. The sole question for consideration before us is whether the appellants were responsible for causing those injuries and had, therefore, made themselves liable for the offences with which they have been charged. It must be said at the very outset that in this case there is no ocular evidence. It is conceded that the case against the appellants hinges mainly on their confessions alleged to have been made by them before the mukhtiarkar and First Class Magistrate on the 15th of November 1961. These confessions have all been retracted. It has been held time and again by several Courts that the retracted confessions although in law may be sufficient for basing the conviction upon, the rule A of prudence has always demanded that the retracted confessions should not be made the sole basis for conviction unless they are corroborated on material particulars. In order therefore to decide as to whether the appellants were liable for the offences with which they have been charged, it will be necessary to decide whether there is any evidence on record which can be considered sufficient to corroborate the retracted confessions of the appellants.

8. The confessions made by the appellants are very lengthy and give the minutest details of their movements and activities. The confessions also as admitted by the learned counsel for the appellants are consistent in the long story given by the appellants with the only divergence in them in regard to the part played by, each of the appellants. An effort has been made by the appellants In their confessions to minimize their part in the perpetration of h this crime. The need for independent corroboration in material particulars of the confessions, therefore, becomes still the greater. For the purpose of considering whether the evidence in corrobora tion. exists or not we will like to deal with the case of Lakhmir and Ishaque appellants separately from the case of Shahmir as they have been convicted of different offences. We will therefore take up the case of Lakhmir and Ishaque first and see if there is evidence to corroborate their confessions.

9. The first piece of evidence on which the prosecution have based reliance is the evidence of Muhammad Alim, P. W. 13, who has stated that when he had gone to the shop of a Blacksmith for the purpose of having his scraper repaired he saw the deceased passing by that shop. He also states that he saw the appellants Lakhmir and Ishaque passing by that shop one hour after the deceased had passed. This witness has not given the date on which he saw the deceased and the appellants passing by the shop of the Blacksmith. The other witness examined for the purpose of corroborating the confessions given by the appellants is Ghulam Muhammad, P. W.

14. His evidence merely is that he saw the appellants Lakhmir and Isbaque passing by his land which is at a distance of about 13 miles from the village of the appellants. He has also not been able to give any date on which he saw the appellants passing by his lands. The third piece of corroboration is about Hamzo, P. W. 6, the tracker, picking out the shod prints of all the three appellants in a test arranged by the police. Hamzo has stated that he picked out the prints of all the three appellants correctly. This test was held in the presence of Khawiddino, P. W. 7, for which mashirnama, Exh. 20, was prepared. Looking at these circumstances it is extremely difficult to believe that they would lend assurance to the Court with regard to the confessions being true. The evidence of Muhammad Alim and Ghulam Muhammad may very well be true but it does not mean that the evidence of these witnesses lends corroboration to the confessions to an extent to hold that the confessions are true. Apart from that, the evidence of these two witnesses was recorded on 14th November 1961, the day on which the appellants were arrested. For ought we know this evidence may have been subsequently procured with a view to bring some material on the record to lend support to the state ments of the appellants which they had made before the police and which the police knew they were going to make before the Magistrate while making the confessions. The circumstances that are required to corroborate a retracted confession should be of independent nature and must relate to material particulars so as to assure a Court of law that the confessions which are being made the basis of convictions are really true. The evidence of theses witnesses also suffers from divergence in some respects with the details given in the confessions made by the appellants. The shod footprint test is obviously of no consequence and has never been accepted by the Courts of law as a piece of corroboration 1 lending support to a retracted confession. The learned counsel for the State has also endeavored to bring the evidence of Saindito, P. W. 10, in corroboration of the retracted confessions but on his attention being drawn to the fact that the story given by Saindito is entirely different from the story given in the confessions he candidly became of the view that the evidence of Saindito could not conceivably be brought in to corroborate the retracted confessions. He has also stated that the evidence of Nabi Bux, P. W. 11, and Khair Muhammad, P. W. 12, has also to be considered as evidence in corroboration of the retracted confessions. The evidence of Nabi Bux merely mentions that the appellants Lakhmir had borrowed a mare from him and returned the same on the third day. He has not been able to say as to when this mare was taken by Lakhmir and whether the taking of this mare had anything to do with the murder. The evidence of Khair Muhammad, P. W. 12, on the other hand, shows that he had gone to the village of Shahmir to recover Rs. 400 from him and had stayed in his house for the night. His evidence also is to the effect that the appellant Shahmir had left his house on the evening of the day he had reached his place and was absent from his house for the whole night. The appellant Shahmir when he talks of Khair Muhammad in his confession does not mention about Khair Muhammad having gone to his house for the purpose of recovering Rs. 400 from him. He has given a story in the confession of which riot a word has been mentioned by Khair Muhammad in his evidence. Under these circumstances, the evidence that has been brought forward to corroborate the retracted confessions of the appellants is, in our view, not such as can be taken into consideration for the purpose of corroborating the confessions. The evidence of the witnesses which is being sought to corroborate the confessions does not either throw light on the incident in question nor does it establish the identity of the culprits. Under these circum stances, the evidence that has been discussed above and which is brought forward to corroborate the retracted confessions, in our view, is not such as can be safely taken into consideration for lending an assurance to us that the confessions made by the appellants are true.

10. The learned counsel has also strenuously argued that the confessions made by the appellants are not voluntary. We have considered this aspect of the case and we see no reason to agree with the learned counsel for the appellants. The only point on which he has founded his case of involuntariness of the con fessions is that the appellants could not have been arrested on the 14th of November 1961, and produced for their confessions on the 15th of November 1961, as alleged by the prosecution, his argument being that the names of these appellants were men tioned in the first information report as suspects and no reason has been assigned as to why the police would not arrest them earlier than the 14th of November 1961. He also argues that they must have been arrested immediately after the 7th of November 1961, and coerced till the 14th of November 1961, to agree to make con fessions and were shown to have been arrested on the 14th of November 1961, when they had agreed to make the confessions. All these arguments of the learned counsel for the appellants are mere conjectures. They are not founded upon any evidence on record. No questions of the type reflecting the arguments of the learned counsel have been put to the police‑officer or to anyone else. The evidence on record as it exists shows that the appellants were arrested on the 14th of November 1961, and were produced on the 15th of November 1961, for their confes sions. We, therefore, see no warrant for holding that the con fessions were involuntary.

11. The evidence on record so far as it connects appellant Ishaque connects of his retracted confession supported by the corroboratory evidence discussed above. In our view, as we have stated above, the evidence brought forward in corroboration is not sufficient to be accepted for the purpose of basing conviction on the retracted confession of the appellant Ishaque. Retracted confession of co accused being in itself tainted piece of evidence will also not corroborate his retracted confession. Under these circumstances, we give the benefit of the doubt to Ishaque and accept his appeal and acquit him.

12. So far as the case of Lakhmir is concerned there is one additional circumstance against him which has not been explained nor have any arguments heed advanced to say that it is not worthy of any belief. This circumstance consists of the appellant Lakhmir having taken the police to a place at a distance of about 200 yards from his house and produced two bloodstained hatchets from Sar grass bushes. These hatchets were secured by Nazir Hussain Shah, S. H. O. P. W. 17, in the presence of Abdul Hakim, P. W. 15, and Noor Muhammad, P. W.

16. Mashirnama for the recovery of these hatchets, Exh. 34, was prepared. Abdul Hakim, Noor Muhammad and Nazir Hussain Shah have supported the case of the prosecution fully and nothing has been brought on record to show as to why these witnesses on this part of the case are giving false evidence against appellant Lakhmir. The production of the bloodstained hatchets, in our opinion, lends support to the retracted confession of appellant Lakhmir and convinces us that he was one of the persons who were responsible for causing the injuries to the deceased Daim on account of which he died especially when the evidence discloses that the injuries on the person of the deceased were such as could be caused by a hatchet. The report of the Chemical Analyser, Exh. 46, also shows that the blood on these two hatchets was human blood.

13. In view of what we have stated above, we consider the retracted confession made by appellant Lakhmir supported by the production of two bloodstained hatchets by him sufficient IF for coming to the conclusion that he is guilty of the offence with which he has been charged. We consequently see no substance in his appeal and dismiss it accordingly.

14. So far as the case of Shahmir appellant is concerned, his confession, Exh. 10, relates to an offence under section 201, P. P. C., only. We have discussed the evidence of Saindito, P. W. 10, Nabi Bux, P. W. 11, and Khair Muhammad, P. W.

12. The evidence of these three witnesses has been brought forward to corroborate the retracted confession made by appellant Shahmir. Since we have not accepted the evidence of these witnesses as zorroboration in respect of the confessions made by appellants Lakhmir and Ishaque, we see no reason for accepting this very evidence as corroboration in respect of the retracted confession made by Shahmir. The evidence against Shahmir therefore, being reduced to the confession having been made before the mukhtiarkar and First Class Magistrate which has been retracted is not sufficient for the purpose of holding him guilty of the offence with which he has been charged. We consequently give the benefit of the doubt to Shahmir and accept his appeal and acquit him. K. B. A. Order accordingly.