P L D 1960 (W (PLP)

ABDUL AZIZ KHAN, J.‑

This is an appeal by Nazir who has been convicted by the learned Sessions Judge, Montgomery, under section 302 of the Pakistan Penal Code and has been sentenced to death for the murder of Khan, on the night between the 29th and 30th of July 1958, in the area of Chak No. 99/13, District Montgomery. The case is also before us under section 374 of the Code of Criminal Procedure. This judgment will dispose of the appeal as well as the reference for confirmation of the death sentence.

2. Very briefly stated, the prosecution case is that Khan deceased and Nazir appellant were employees of Nazra (P. W. 7). They used to cultivate his land situate in Chak No. 99/13. The appellant's uncle Ghulam was murdered two years before the Partition of the country. Four of the deceased's cousins were prosecuted for the murder and were sentenced to one year's rigorous imprisonment each. According to the prosecution, Nazir appellant murdered Khan on the eventful night in order to avenge his uncle Ghulam's murder.

3. The deceased, his brother Chiragh (P. W. 6) and Nazir appellant were together at the dhari of Nazra P. W. up to 9 p.m. on the 29th of July 1958. Leaving the appellant and the deceased at the dhari, Chiragh P. W. went to his house in Chak No. 96/9‑L. It is alleged that the appellant and the deceased slept at the dhari. Khan deceased slept on a takhtposh while Nazir appellant slept on a charpoy at a distance of two karams from the takhtposh. On the next morning, i.e., the 30th of July 1958, while Chiragh P. W. was proceeding towards Nazra's dhari, he heard Nazra's alarm. On being questioned, Nazra P. W. told Chiragh that Khan lay murdered on the takhtposh. He further told him that Khan's head had been Severed and was missing. On reaching the dhari, Chiragh P. W. saw the headless body of his brother lying on the takhtposh. Chiragh's alarm attracted Ramzan Lambardar (P. W. 8) and others to the spot. Ramzan Lam bardar, Chiragh P. W. and others went in search of the appellant who was missing from the dhari. They found him in his house in Chak No. 117/9‑L and interrogated him. In the beginning Nazir appellant gave evasive answers. Later he confessed having killed Khan. On further inquiry, the appellant admitted having thrown Khan's head in a watercourse and agreed to help them to recover it. Chiragh P. W. and others then brought Nazir appellant to the dhari. The appellant then led Chiragh and Ramzan P. Ws. and others to a watercourse, at a distance of 73 karams from the dhari, and brought Khan's head out of the watercourse. On returning to the dhari, Nazir appellant is alleged to have reiterated his earlier confession in the presence of Nazra P. W. Leaving the head, the dead body and the appellant in the custody of Ramzan Lambardar, Chiragh P. W. himself went to Police Station Malka Hans, which is at a distance of ten miles from the scene of occurrence, and lodged the first information report Exh. P. C. on the 30th of July 1958, at 11‑30 a.m.

3. Assistant Sub‑Inspector Muhammad Afzal (P. W. 10) reached the spot, prepared the inquest report and then despatched the dead body and the head to the mortuary for post‑mortem examination. He collected bloodstained earth from a place near the watercourse and from underneath the takhtposh, and sealed it into a parcel. The A. S. I. then formally arrested Nazir appellant. On observing bloodstains on Nazir appellant's chadar (Exh. P. 4) and turban Exh. P. 5, the A. S. I. took these garments into possession and sealed them into a parcel vide memo Exh. P. F. On the 2nd of August 1958, Nazir appellant led the A. S. I. and others to a kari bush in square No: 8 and produced the axe Exh. P. JO and sickle Exh. P. 11, which the A. S. I. took into possession vide memo. Exh. P. N. It may be stated here that the chadar Exh. P. 4, the turban Exh. P. 5 and the sickle Exh. P. 11 were found by the Serologist to be stained with human blood.

4. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him, and retracted the alleged extra‑judicial confessions. He did not lead any evidence in his defence.

5. It will be seen from the above statement of facts that there is no direct evidence in the case, and the prosecution case rests on :‑- (a) The extra‑judicial confession of the appellant made to Chiragh (P. W. 6) and Ramzan Lambardar (P. W. 8) ; (b) the extra‑judicial confession of the appellant made to Nazra (P. W. 7) ; (c) the recovery of the deceased's head from the khala at the instance of the appellant ; (d) the recovery of the bloodstained sickle Exh. P. 11 at the instance of the appellant ; (e) the recovery of the appellant's garments ; and (f) the fact that the deceased was last seen alive in the company of the appellant. We propose to consider this evidence seriatim.

6. Ramzan (P. W. 8) stated in cross‑examination:‑-- " It is correct that the accused admitted having killed Khan deceased when we promised that it would be advantageous for him if he confessed his guilt. We had also told him that I and others would help him provided he told the truth." Thus the confession before Ramzan Lambardar and Chiragh P. Ws. was the result of the promise by Ramzan P. W., who being a Lambardar, is a person in authority, within the meaning of section 24 of the Evidence Act. In Muhammad Yar v. Emperor (A I R 1922 Lah. 263) it was held :‑ " A Lambardar being a person in authority, a confession induced by him by the use of threats is inadmissible in evidence under section 24 of the Evidence Act." Respectfully following the above view, we hold that the appellant's confession, alleged to have been made to Ramzan Lambardar and Chiragh P. Ws. is inadmissible in evidence, and we must, therefore, rule it out of consideration.

7. The confession alleged to have been made by the appellant to Nazra (P. W. 7) also cannot be relied upon. Nazra P. W. did not support the prosecution case at the trial. At the request of the Public Prosecutor, the learned Sessions Judge transferred Nazra's statement before the committing Magistrate to the Sessions record under section 288 of the Code of Criminal Proce dure. Nazra P. W. had stated therein:‑ " I and Nawab P. W. remained near the dead body and Chiragh, Dara and Ramzan Lambardar went in search of the accused Nazir. After an interval of two hours, they brought Nazir accused with them. In our presence, Nazir accused declared having killed Khan to avenge the murder of his uncle Ghulam." According to this statement, Nazir appellant confessed his guilt to Nazra P. W. in the presence of Ramzan Lambardar and Chiragh P. Ws: Neither Ramzan nor Chiragh stated at the trial that the appellant confessed his guilt to Nazra P. W. in their presence. Thus, there is a serious discrepancy between the statements of Nazra P. W. and Chiragh and Ramzan P. Ws.

8. Further, the alleged extra‑judicial confession to Nazra P. W. suffers from the following defects. First, the prosecution' sought to prove Nazir appellant's confession to Nazra P. W. by Nazra's statement which had been transferred under section 288 of the Code of Criminal Procedure. Nazra P. W. made two divergent statements, i.e., before the committing Magistrate and at the trial. In dealing with an extra‑judicial confession, the c Court must exercise great care. It should not act upon such confession unless it is proved by evidence of the most reliable character. In Emperor v. Mt. Jagia (A I R 1936 Pat. 308) Dhavle and Chatterji, JJ. observed :‑ " Where a witness to whom the confession is alleged to have been made changes his statements from time to time on material points, he cannot be regarded as a reliable witness, and the confession cannot be said to have been proved." In Pirthi and others v. The Crown (37 P R 1917) it was held that although evidence taken before the committing Magistrate and transferred to the Sessions file under section 288 of the Code of Criminal Procedure must be treated as substantive evidence, yet such evidence cannot be accepted as proper corroboration of a con fession made to a Magistrate and subsequently retracted. Secondly, we have held that Nazir appellant's confession alleged to have been made to Chiragh and Ramzan Lambardar P. Ws. is inadmissible as it had been procured as the result of a pro mise held by Ramzan Lambardar. Section 28 of the Evidence Act reads:‑-- " If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant." When once the existence of improper inducement, threat or pro mise has been established so as to bring the case within the purview of section 24, there is a presumption of the continuance of such inducement, threat or promise, and it is the duty of the prosecu tion to satisfy the Court that the impression caused by the original inducement, threat or promise had been removed. In Fateh Chand v. Emperor (A I R 1925 All. 606) a Police Inspector told the accused that he would be let off if he confessed, and thereupon the accused made a confession to the Inspector and subsequently to a Magistrate which was recorded under section 164 of the Code of Criminal Procedure. The High Court held the latter confession to be inadmissible observing:‑

" A promise of this kind is a continuing offer. It does not differ from any other bargain which may be made by a man in the ordinary course of life. If a man is told by a person in authority that if he gives a true account of the matter, he will be pardoned, that is a continuing offer, the thread of which continues unbroken until it is accepted by the confession which completes the bargain, unless there is some circumstance which breaks it so as to show that the inducement no longer operates." The Calcutta High Court took a similar view in Emperor v. Ganesh Chandra Goldar (I L R 50 Cal, 127 = A I R 1923 Cal. 458). In the present case, Nazir appellant made the second confession two hours after he had been given a promise by Ramzan Lambardar. There is no evidence to show that the impression created by Ramzan Lambardar on the appellant's mind had beep removed. After a careful consideration of the material on the record, we are not prepared to rely on Nazir appellant's alleged confession to Nazra P. W.

9. It now remains to consider the circumstantial evidence mentioned in items (c) to (f) above. Chiragh and Ramzan P. Ws. proved the recovery of the deceased's head from the watercourse at the instance of the appellant. A. S. I. Muhammad Afzal proved the recovery of the bloodstained sickle and the bloodstained garments of the appellant. As already stated, these were found to be stained with human blood. We have considered items (c) to (f) in the light of well‑established principle that in order to justify an inference of guilt, the circumstantial evidence must be incompatible with the innocence of the accused. In our opinion, E the circumstantial evidence (c) to (f) above does not establish the appellants guilt under section 302 of the Pakistan Penal Code. This evidence, however, adequately establishes that the appellant committed an offence under section 201 of the Pakistan Penal F Code. We, therefore, alter his conviction from section 302 to one under section 201 of the Pakistan Penal Code, and sentence him to seven years' rigorous imprisonment.

10. Except for the modification made above, the appeal is dismissed. The sentence of death imposed on the appellant is not confirmed. A.H. Conviction altered.