1998 PLP 568 (SCMR)

Representation

• Ch. Ijaz Yousuf, Additional Advocate‑General with Mehta W.N. Kohli, Advocate‑on‑Record for Petitioner.
• Nemo for Respondent.
• Date of hearing: 9th June, 1996.
• STATE through Advocate‑General, Balochistan‑‑‑Petitioner
• 2. Briefly the facts are that the two accused‑respondents were placed on trial before the Sessions Judge, Naseerabad, at Dera Allah Yar on the charge of committing the murder of Mughal on 26‑12‑1990 by firing. The prosecution placed reliance on the confessional statement made by Shad Muhammad, the ocular evidence furnished by complainant Murad Ali (P. W.1), Barat Ali Tehsildar (P.W.2) and Abdul Rahim Gul, Naib Tehsildar (P.W.3). On the concession made by Mr. Salahuddin Mughal, learned Additional Advocate- General, Balochistan, the appeal against Dad Muhammad was dismissed. The learned Additional Advocate‑General, however, urged before the High Court that the learned trial Judge had erred to ignore even the confessional statement recorded by Barat Ali Tehsildar (P.W.2) which was voluntary and truthful. As against this, learned counsel appearing on behalf of Shad Muhammad respondent before the High Court had attacked both the voluntariness and truthfulness of the confessional statement attributed to the accused‑respondent on two‑fold grounds; firstly, that it suffered from very serious infirmity of having been recorded on solemn affirmation and; secondly, that it had been recorded after 14 days of the arrest of the accused‑respondent. Reference in this context was made to Ghulam Rasool v. The State (1977 PCr.LJ 985) wherein it was held that confessional statement recorded on oath was inadmissible in evidence. Both these contentions found favour with the learned Division Bench of the High Court and, therefore, they were not persuaded to accept the State appeal against the acquittal of Shad Muhammad respondent.
• 3. Chaudhry Ejaz Yousuf, learned Additional Advocate‑General, while conceding that except for the retracted confession made by Shad Muhammad respondent, there was no other piece of evidence which connected him with the murder of Mughal deceased, contended that notwithstanding its retraction there was no legal bar for recording conviction on a confession if it was voluntary and true. In support of this proposition, reliance was placed on Wazir Khan v. The State (1989 SCMR 446).
• 4. There is no cavil with the law laid down in the case of Wazir Khan supra. The learned Additional Advocate‑General has perhaps ignored to notice that in this case the learned trial Judge and the learned Judges seized of the appeal against acquittal of the respondents had concurrently held that the confession attributed to the respondent was neither voluntary nor true, therefore, it could not be used against him convicting him for the murder of Mughal deceased. When faced with this proposition, the learned Additional Advocate -General urged that the retracted confession in this case was amply corroborated A by the murder of Mst. Zaree. We wonder if the murder of Mst. Zaree which had been cited as a motive for the murder of Mughal deceased would cure the legal infirmity of recording of the confessional statement on solemn affirmation or would, in any manner, turn it into voluntary or truthful. Looked from any angle, the confessional statement alone allegedly made by Shad Muhammad respondent would not justify to hold the respondent guilty of murder of Mughal deceased.

Headnotes / Summary

Judgment & Decree