P L D 1975 Lahore 103 (PLP)

MUHAMMAD SIDDIQ, J.-On 5-7-1970, Muhammad Shah P. W. father of Bashir Shah deceased, lodged a report (Exh. P. B.) at Police Post Texila, stating therein that he and his deceased son Bashir Shah used to earn their livelihood by driving their own tonga. As usual, on 3-7-1970, at about 8 a.m. the deceased took out the tonga for plying the same. However, he did not return home in the evening. The father made a search but could not succeed to trace out the deceased. None of the accused persons in the present case was mentioned as a suspect in the F. I. R. but some other persons named therein as suspects. A. S. I Muhammad Arshad (P. W. 16) after recording the F_

1. R. started the investigation and went to the tonga stand of Saral Khola and from there took into possession the tonga and mare of the complainant vide Memo. Exh. P. D. During his search on 6-7-1970, he located the dead body of Bashir Shah deceased in an abandoned well called Badhana well. The dead body was then taken out of the well through Muhammad Aslam P. W. He prepared the injury statement (Exh. P. K ) and the inquest report (Exh. P. L.) of the dead body and despatched the same to the mortuary for post-mortem examination. He also got the site plan (Exh. P. C.) prepared by Muhammad Zahur-ul-Haq Patwari P. W. On 26-7-1970, he handed over the investigation, to Safdar Ali Shah, S. H. O., Police Station, Sangjani. On 2-8 -1970, Inayat Ali Khan P. W. produced Amir Alam aid Amir Ahmad appellants before the Inves tigation Officer. On 5-8.1970, Muhammad Sabir and Sultan appellants along with Muhammad Aslam approver were produced before him by the same Inayat Ali Khan P. W. All the five persons were taken into custody. At the instance of Muhammad Aslam approver the Investigating Officer on 6-8-1970 recovered from his house the cycle (Exh. P. 1) which was taken into possession vide Memo. Exh. P. E. At the instance of Sultan appellant he recovered cycle (Exh. P. 2) vide Memo. Exh. P. F. On the same day, namely, on 6-8-1970, the Investigating Officer moved an application (Exh. D. B.) praying that Muhammad Aslam be made an approver. He was produced before a Magistrate on 7-8-1970 and was sent to the Judicial lock-up. The Senior Superintendent of Police, Rawalpindi, wrote Memorandum No. 46968-C, dated 6-8-1970 to the District Magistrate, Rawalpindi, for granting pardon to Muhammad Aslam. The District Magistrate vide order dated 7-8-1970 (Exh. P. M.) tendered a pardon under section 337, Cr. P. C. to said Muhammad Aslam on the condition of his revealing true and full disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other persons concerned, whether as principal or abettor in the commission of the offence. He directed that the approver should be produced before the Duty Magistrate on 8-8-1970 for recording his statement. Accordingly, he was produced before the Duty Magistrate who vide his order dated 8-8-1970 (Exh. P. M/1) directed that he should be sent to the Judicial Lock up and produced before him on 10-8-1970. Accordingly, Muhammad Aslam was produced before him on 10-8-1970 and then his statement (Exh. P. G.) was recorded.

2. On 6-8-1970, the Investigating Officer moved another application (Exh. P. N.) at the instance of Sultan appellant for recording his statement under section 164, Cr. P. C. On the same day and for the same purpose, he moved another application (Exh. P. O.) at the instance of Muhammad Sabir appellant. On 7-8-1970, he sent both Sultan and Muhammad Sabir appellants to the Judicial Lock-up. On 8-8-1970 Sultan appellant was again produced before a Magistrate and before recording his statement the Magistrate passed the following order (Exh. P. H/2): The Magistrate also asked the following questions from the appellant :- The Magistrate on the same day, namely, 8-8-1970, then recorded the confessional statement (Exh. P. H.) of Sultan under section 164, Cr. P. C. The Magistrate then certified the confessional statement of the accused in the following words which is marked as Exh. P. H/1:- Muhammad Sabir appellant was also examined by the same Magistrate under section 164, Cr. P. C. on the same day. His statement is Exh. P. J., while other documents relating to this statement are Exhs. P. O./l, P. J./1 and P. J./2 When Sultan and Muhammad Sabir appellants learnt that they had been ignored and pardon had been tendered to co-accused Muhammad Aslam, Muhammad Sabir appellant addressed application (Exh. D. D.) while Sultan addressed application (Exh. D. E.) Muhammad Sabir in his application (Exh. D. D.) alleged as under :- The contents of the application of Sultan appellant are also similar and, therefore, need not be reproduced here. After the usual investigation, the police challaned all the four appellants under section 302/147/149, P. P. C: The Additional Sessions Judge, Rawalpindi, by his judgment dated 7-8-1972, convicted all the appellants under sections 302 and 147 read with section 149, P. P. C. and sentenced each of them to death for the offence under section 302/149, P. P. C. and further each of them was sentenced to undergo rigorous imprisonment for one year and fine of Rs. 1,0..0.00 or in default of payment of fine further rigoruous imprisonment for six months under section 147/149, P. P. C. it was directed that out of the fine, half the amount should be paid to the father of the deceased by way of compensation. The sentences of imprisonment were to take effect only if the sentences of death were not confirmed by this Court. The appellants have challenged their convictions and sentences through Cr. A. No. 687 of 1972 and Cr. A. No. 699 of 1972. The case is also before us under section 370, Cr. P. C. for confirmation of death sentences. This judgment will dispose of both the Criminal Appeals as well as the Murder Reference.

3. Dr. Abdul Majid conducted the post-mortem examination on the dead body of Bashir Khan deceased on 6-7-1970 at 3 p.m. and found the following injuries on it (1) An abrasion on left cheek, 4" x 1/2". (2) Multiple abrasion on the left chest front, 4" X 2" area to the inner side of left nipple. (3) Multiple minor abrasion over the left and right elbow back. (4) Multiple minor abrasion over the chin right and left lower jaw. (5) Abrasion over the nose, 1/2" x 1/2". (6) Multiple minor abrasion right and left side of the neck. (7) Minor abrasion over right and left knee-caps. Injuries Nos. 1 to 5 and 7 were found simple caused by a blunt weapon. Death in the opinion of the doctor was due to asphyxia and as a result of strangulation. Probable time that elapased between death and injuries was immediate and between death and post-mortem examination was 3 to 4 days.

4. Amir Alam and his brother Amir Ahmad appellants when examined under section 342, Cr. P. C. denied the prosecution allegations and stated that they were involved on account of false suspicion and in order to prove an untraced murder and save the suspects named in the F. I. R. Mohammad Sabir appellant in his statement denied the allegations of the prosecution and when asked about his confessional statement recorded by the Magistrate, he replied as under :- "This is incorrect, except my prosecution and despatch to judicial lock-up. I was tutored to make a statement. I was told that I would be made an approver but I had replied that I could not become approver for I know nothing about the facts of the case. I was asked to reproduce the tutored story before a Court. The confession was obtained by fraud and inducement. Having come to know that I had not been made an approver, I made an application immediately discounting the confession. That application is Exh. B." When asked why the case was brought against him and why the P. Ws. were deposing against him, he stated as follows :- "On account of false suspicion and in order to prove an untraced murder and save the suspects named in the F. I. R;" Similarly when Sultan was examined under section 342, Cr. P. C. he also denied the prosecution allegations and made similar statement like that of Mohammad Sabir appellant.

5. The prosecution had relied upon the extra judicial confession of all the appellants and the approver allegedly made before Inayat Ali Khan (P. W. 10). The prosecution produced Chan Pir Shah (P. W. 11) to prove that he saw Amir Alam, Amir Ahmad and Sultan appellants and Mohammad Aslam approver sitting near the well known as Badhana well. On his inquiry the accused persons told the witness that they were waiting for some person. When he proceeded further, on the way he came across Bashir Shah deceased who was driving his tonga and Muhammad Sabir accused was riding a cycle. Both were going from the side of Texila towards the said well. On his inquiry, the deceased told him that he was going to fetch some passenger. It may be observed here that the learned Additional Sessions Judge did not believe the testimony of Inayat Ali Khan and Chan Pir Shah P. Ws. About the alleged extra judicial confession the trial Court observed as under :- "The extra-judicial confessions of the accused and the approver before P. W. 10 appear to be farcical. The evidence about this confession is nothing but a concoction. The statement of an admitted henchman of police can seldom be true. Therefore the deposition of Inayat Ali Khan (P. W. 10) calls for no credence. I, therefore, disbelieve and discard it."

6. While dealing with the statement of Muhammad Aslam approver, the trial Court after observing that the statement of an accomplice must be corroborated in material particulars held that such corroboration was available from the medical evidence, the statement of Muhammad Bashir (P. W. 14) and the judicial confession of Sultan and Sabir appellants. Thus the conviction of the present appellants is based upon the approver's statement as corroborated by the medical evidence, the statement of Bashir (P. W. 14) and the judicial confessions of the two appellants namely Sultan and Muhammad Sabir.

7. It is well settled now that no conviction can be based upon the statement of an approver unless it is corroborated in material particulars by some independent evidence. We, therefore, have to see whether in the instant case there is any corroboration available on the record to support the testimony of Muhammad Aslam approver. As observed earlier, the dead body of Bashir Shah deceased was recovered from the well on 6-7-1970 and the post-mortem examination was performed by the doctor on the same day at 3 p.m. Confessional statement of Muhammad Aslam approver was recorded by the Magistrate on 10-8-1970 (Exh. P. G.). Since the post mortem examination report of the doctor dated 6-7-1970 was already available to the police, the medical evidence cannot, therefore be considered as an independent corroboration to support the testimony of the approver dated 10-9-1970. The learned Additional Sessions Judge, therefore, was not justified to use the medical evidence as an independent corroborative piece of evidence.

8. As regards the judicial confessions of Sultan and Muhammad Sabir appellants, it is vehemently argued by their learned counsel Mr. Zafar Mahmood that these confessions are not admissible in evidence. According to him, the learned Magistrate before recording their statements did not comply with the requirements of law as contained in section 164, Cr. P. C. According to him the statements were not voluntary. According to the learned counsel, the certificates issued by the Magistrate, namely, Exhs. P. H./2 and P. J./2, do not establish that the Magistrate was satisfied that the accused persons were making statements voluntarily, without any inducement or police pressure. These certificates show that if the accused persons made any confessional statements, the same could be used against them as well as in their favour. According to the learned counsel, the confessional statements cannot be used in favour of their makers. He has also referred to the questions put to the accused persons before recording their statements. These questions and their answers have already been reproduced above. According to the learned counsel, no question was put to the accused persons whether they were making the statements voluntarily without any pressure or inducement from any quarter. He further argues that before issuing the certificate that the Magistrate is satisfied that the confession was made voluntarily, he is required to put a specific question in this behalf to the accused persons and it is the reply of the accused person on which the satisfaction of the Magistrate can be based. The learned counsel in this behalf has relied upon Mst. Bano's case 1972 P Cr. L J

775. As mentioned earlier, these two appellants have retracted ti om their confessional statements. It is in this background that we have to determine the admissibility and the value of these confessions. It is specifically provided in clause (3) of section 164, Cr. P. C. that the Magistrate before recording a confessional statement must be satisfied that the same was being made voluntarily and then make a Memorandum to that effect. A mere perusal of the questions put to these appellants will show that no question was put to them by the Magistrate before recording their confessional statements, whether they were making those statements voluntarily or there was any inducement or pressure from any quarter. In other words, no question about voluntary nature of the confessions was put by the Magistrate to Muhammad Sabir and Sultan appellants before recording their confessions. No doubt, the Magistrate has issued the certificates which include the words but no question was put to these accused persons regarding this pressure or about the voluntary nature of the statement. It seems that the Magistrate who recorded these confessions has just filled up the printed stereotyped forms without adverting to the actual questions put to the accused persons. The expression "upon questioning the person making it" contained in clause (3) of section 164, Cr. P. C. makes it abundantly clear that the satisfaction of the Magistrate that the accused was making confession voluntarily should be based upon the reply given by the accused to the question put to him in this behalf by the Court. When no such question has been put to the accused before recording a confessional statement, it is not safe to hold that still the Magistrate was satisfied that the confession was being made voluntarily. Thus the words in Exhs. P. H./1 and P. J./1 that are based upon no material on the record and, therefore, the question of satisfaction of the Magistrate would not arise. We respectfully agree with the view expressed by our learned brothers in Mst. Bano's case referred to above. Accordingly, we find that there is some substance in the contention raised by the learned counsel for the appellants in this behalf.

9. Even if we treat the confessional statements of Sultan and Mohammad Sabir appellants as valid and admissible in evidence, still another question which arises for consideration is whether a retracted confession by a co-accused can be used to corroborate the approver's statement. Their Lordships of the Supreme Court in Rafiq Ahmad's case P L D 1958 S C (Pak.) 317 held as under :- "These observations no doubt warn the Courts that they should be very careful in making use of the confession of the co-accused as corroboration of an approver's testimony, and that the probability of the confession having resulted from previous concert should be excluded before it can be used for corroborating the approver. As regards a confession which is retracted, reasons given for retracting it must be found to be false before it can be acted upon. But where it is found that previous concert was highly improbable and the reasons for retracting the confession are untrue there can be no justification for declining to reply on it for purposes of corroboration" Thus, it can safely be held that a retracted confession of the co-accused can be acted upon as a corroboration provided the reasons given for retracting the same are false. Now, therefore, we have to see whether the reasons assigned by Sabir and Sultan appellants for retracting from their confessions are true and believable or not. As mentioned earlier, in his statement under section 342, Cr. P. C. Mohammad Sabir appellant stated that he was asked to become an approver by the Police and that he replied that he did not know anything about the facts of the case, but the Sub-Inspector tutored him a statement and directed him to produce the same before the Magistrate so that he may be made approver in this case. According to this appellant, the confession was obtained by fraud and inducement. He has further stated that having cone to know that pardon was not granted to him but to Mohammad Aslam accused, he submitted an application (Exh. D. B.) to that effect through jail, to the Sessions Judge. The contents of this application have already been reproduced above. Sultan appellant has also made a similar statement and application. The Investigating Officer when asked about these applications made against him by these appellants stated as under :- "I do not remember if accused Sultan and Sabir have made applications against me alleging that by fraud I had made them to confess. It is not correct that I extracted confession out of them by inducement of securing tender of pardon to them." As mentioned earlier, these applications have been duly placed on the record as Exhs. D. B. and D. H. They were addressed to the Sessions Judge who was to try the appellants. Although the Investigating Officer has denied the allegations of fraud and inducement, yet in the background of this case the probability of the confessions having been obtained through some inducement or promise by the police cannot be excluded. In all, five persons were involved in this case. Out of them, the police recorded the confessional statements of three accused persons, namely, Mohammad Aslam, Mohammad Sabir and Sultan. Only one of them, namely, Mohammad Aslam, was ultimately made an approver. The defence suggestion that Mohammad Sabir and Sultan appellants were also given a similar promise or assurance to make them approvers if they confessed the guilt, can probably be true. It seems that the Investigating Officer acted very cleverly in this case and he kept the accused persons separate from one another and held out a promise to more than one person to tender pardon if a confession was made. It was perhaps due to that promise that three out of the five accused persons made confessional statements. The fact is that when Mohammad Sabir and Sultan were not made approvers and they learnt that Mohan mad Aslam had been tendered pardon, they retracted from their confessions and wrote applications to the Sessions Judge explaining the reasons for retraction. Thus, it was not at the trial stage when they were examined under section 342, Cr. P. C. that they retracted from their confessions, but in fact long before their trial at the earliest opportunity they retracted from their confessional statements and informed the Sessions Judge at the stage when even commitment proceedings had not commenced. The reasons contained in their applications and later on reiterated in their statements under section 342, Cr. P. C. seem to be probable and believable. In any case, the prosecution has not placed any positive material to show that the reasons given by these appellants for retracting from their confessional statements are false. After carefully and minutely examining the relevant material available on the record regarding this aspect of the case, we have come to the conclusion that the reasons given by Mohammad Sabir and Sultan appellants for retracting from their confessions are not proved to be false by the prosecution and the same may be true. In this view of the matter, the judicial confessions made by Mohammad Sabir and Sultan appellants cannot be used as corroborative pieces of evidence to support the approver's statement.

10. As regards the third piece of corroboration, namely, the statement of Mohammad Bashir (P. W. 14), we find that he is a resident of a different place, namely, Mirpur, while the appellants belong to other village. The mere fact that he is also employed in Ordnance Factory at Wah will not be sufficient to make him a reliable witness. He is only a chance witness. Moreover, he has stated only that about 3/4 days before the disappearance of the deceased an altercation had taken place between the deceased and Amir Alam appellant at Sarai Kala. He has admitted in cross-examination that he did not talk of this incident to anybody. It was after 25/26 days that he informed the police. It was after 35/36 days that he was called by the S. P., Rawalpindi, and then he informed him also about this happening. In this background, no importance can be attached to such a statement of this witness. Moreover; it related only to the motive against one of the accused, namely, Amir Alam. He does not say anything about the actual occurrence. He has offered no explanation why he did not disclose this fact to the police or anyone else for 25 days. In these circumstances, we attach no importance to his statement and the same cannot be used to corroborate the approver's statement. The result is that practically there is no legal corroboration available on the record to support the approver's statement on material points. The three pieces of such corroboration relied upon by the learned Additional Sessions Judge are in the eye of law no corroboration and consequently we have no hesitation to discard the same.

11. It may also be observed that approver's statement is full of discrepancies. His statement (Exh. 1'. G.) recorded by the Magistrate on 10-8-1970, his statement before the Committing Magistrate and finally his statement before the trial Court all differ on certain material points. We need not examine all those discrepancies, because the appellants are entitled to acquittal on the ground that the Approver's statement had not been corroborated by any independent evidence. It may, however, be observed that neither the approver's, nor Mohammad Sabir or Sultan's confessional statements led to any disclosure or recovery of any relevant articles. Whatever they stated was already in advance knowledge of the Investigating Officer. The dead body had already been recovered and various recoveries G had also been made.

12. After carefully scrutinizing the entire material available on the record, we find that the approver's statement has not been corroborated on material points by any independent source. The prosecution has not succeeded to prove the guilt of the appellants beyond reasonable doubt. Consequently, giving the benefit of doubt to the appellants, we accept their appeals, set aside their convictions and sentences awarded by the Additional Sessions Judge and acquit them. They shall be set at liberty forthwith if not required in connection with any other case. S. A. H. Appeal allowed.