1986 P Cr (PLP)

10. The learned Sessions Judge found the following pieces of evidence against them:‑ (a) Medcial evidence. (b) Circumstantial evidence i.e. the deceased was last seen with the accused persons, recoveries of blood‑stained clothes of the accused, recoveries of hatchets and the pointation of the place of incident by the accused. (c) Confessional statements of both the accused recorded by the Naib‑Tehsildar and 2nd Class Magistrate, Tamboo under section 164, Cr.P.C.

11. The recoveries of the blood‑stained clothes, crime weapons from the appellants were not believed by the learned Sessions Judge in the words. "There is no evidence of the police officer who affected the alleged recovery. There is nothing on record as to why independent witnesses were not associated with the alleged recovery. Under the circumstances the alleged recovery of blood stained clothes of the accused from his house cannot be believed." "The alleged recoveries under the circumstances have not been substantiated. Similarly it is difficult to believe the version of H.C. Abdul Ghafoor that the accused after his arrest led the police to the Jai Wardat and pointed out the place of incident. Since the alleged recoveries of blood‑stained clothes of the accused and the hatchets have not been believed. The report if the Chemical Examiner Exh. 25 is also of no avail to the prosecution in this case." However the learned Sessions Judge relied upon the retracted confessions of the appellants as follows:‑ "The confessions have been retracted. However it is well- established law that retracted confession is believed to be voluntary and true can form the basis of conviction without any corroboration. In the case in hand the only corroboration available is the testimony of P.W. Khair Muhammad. In the confessional statements, it has been stated by both the accused that P.Ws. Paria and Khair Muhammad had seen them with the deceased before the incident. P.W. Khair Muhammad has corroborated the version. Even otherwise as has been observed the retracted confessions if believed to be voluntary and true can form the basis of conviction without any corroboration. The confessional statements in the case have been adjudged to be voluntarily made and had been believed to be true. The deceased was aged about 12 years. The accused at the relevant time were also about 14/15 years of age. There is no suggestion anywhere in record that any previous ill‑feeling existed between the accused and the deceased. The incident under the circumstances was not premeditated. The confession when believed is to be taken as a whole. The confession show that the unfortunate incident happened in heat of passion on account of grave and sudden provocation. The accused under the circumstances are liable for culpable homicide not amounting to murder punishable under section 304, Part I, P.P.C."

12. According to the learned Sessions Judge the deceased died of injuries suffered by him and thus met with a violent death. His finding on the point No. 2 was also in affirmative and whereby he held the appellants to have committed offence under section 304, Part I.

13. Mr. Azizullah Memon, the learned counsel for the appellants in support of the appeal has taken the following grounds:‑ (i) That under section 37 the Naib‑Tehsildars of Kalat District by virtue of their office were authorized to exercise power under section 164, Cr.P.C. in places shown in the Notification but not beyond their own jurisdiction. He urged that thereby the Naib‑Tehsildar of Tamboo was empowered to exercise powers under section 164, Cr.P.C. in respect of offences in Sub‑Tehsil Tamboo only. (ii) That the confessions were neither proved nor voluntarily or true. (iii) The prosecution case was false, absurd and unbelievable. (iv) That prosecution evidence was false, contradictory and unreliable.

14. In support of his contentions the learned‑counsel relied upon:‑ (i) 1984 P Cr. L J 611‑1011‑571. (ii) 1981 P Cr. L J 844‑758.

15. Mr. Muhammad Yousuf Chaudhary, the learned Asstt.A.‑G. for the State submitted‑‑ (i) that in view of section 40, Cr.P.C. the Naib‑Tehsildar, Tamboo had the authority to record confession even beyond his own jurisdiction. (ii) Confessions were voluntarily true and sufficient for conviction. (iii) Prosecution story was true and natural. (iv) The witnesses were natural, independent and reliable.

16. In support of his contention he relied upon:‑ (i) P L D 1974 Lah. 256. (ii) P L D 1975 S C 607. (iii) 1982 N.R.Cr. Case S C 8. (iv) P L D 1966 S C 413. (v) 1981 P Cr. L J 118.

17. In support of his first contention the learned counsel invited my attention to the Notification, dated 4‑6‑1964 empowering Naib Tehsildar to record confession under section 164, Cr.P.C. It would be profitable to reproduce the same for convenience sake:‑ "No. 13/21‑Judl: (II)/63. In exercise of the powers conferred by section 37 of the Code of Criminal Procedure, 1868, the Governor of West Pakistan is pleased to invest the following Naib‑Tehsildars of Kalat District with the following additional powers being the powers as specified in the Fourth Schedule to the said Code by virtue of their offices for the places shown against each:‑ (1) Naib‑Tehsildar, Surab. (2) Naib‑Tehsildar, Wadh. (3) Naib‑Tehsildar, Moola. (4) Naib‑Tehsildar, Zahri. (5) Naib‑Tehsildar, Mashkhail. (6) Naib‑Tehsildar, Karkh Powers under sections (7) Naib‑Tehsildar, Mirpur. 164, Cr.P.C. and 167, Cr.P. C. (8) Naib‑Tehsildar, Jhall. (9) Naib‑Tehsildar, Tamboo (10) Naib‑Tehsildar, Sunni. (11) Naib‑Tehsildar, Balanari. (12) Naib‑Tehsildar, Chattar. He particularly drew my attention to the wording of the Notification that the Naib‑Tehsildars by virtue of their offices to exercise the powers for the place shown against leach. The learned counsel emphasised of the word 'THE PLACES SHOWN AGAINST EACH'.

18. According to the learned counsel the jurisdiction of the Naib Tehsildar for recording confession under section 164, Cr.P.C. was limited for offences falling in places of Sub‑Tehsil Tamboo only and not beyond that.

19. On the other hand the learned Asstt.A.‑G. submitted that under section 40 of Criminal Procedure Code the Magistrate had the general power to record confessions of persons even beyond his own jurisdiction. In order to appreciate the effect of section 40; it would be useful to reproduce it:‑-- "

40. Powers of officers appointed. ‑‑Whenever any person holding an office in the service of Government who has been invested with any powers under this Code throughout any local area is appointed to an equal or higher officer of the same nature, within a like local area under the same Provincial Government, he shall unless the Provincial Government, otherwise directs, or has otherwise directed, exercise the same powers in the local area in which he is so appointed." This section has no relevancy with the point in issue.

20. However, even the notification referred to hereinabove by the learned counsel for the appellants also in no way lends support to his contention. Except placing reliance upon the notification no other law to support his contention has been relied upon or cited.

21. It seems that the learned counsel has mainly placed his reliance upon the import of the word "place" of the above‑said notification which in fact neither supports his case nor serves his purpose. The notification in that context is quite unambiguous and needs no further elucidation. In such situation I am not inclined to agree with his contention that the Naib‑Tehsildar Tamboo had no jurisdiction to record g confessions of the appellants. His objection in that respect is repelled accordingly.

22. Then the learned counsel for the appellants very seriously criticised the genuineness and voluntariness of the confessions and submitted that the‑learned Sessions Judge had erroneously held them to be true and voluntary ones and solely based conviction of the appellant thereon. To support his contention he firstly argued that both the appellants were of tender age hence possibility of extracting confessions from them by promise‑pressure or coercion could not be ruled out. To support his contention he referred to authority reported in 1984 ‑P Cr. L J 611 and 1011. which reads as under:‑ "Accused, hardly 141 years of age on day of occurrence‑ Confession‑‑Accused of such age could easily be duped to give statement as was tutored to him by police‑‑Magistrate, in such case, had to be extra‑cautious in recording confession‑‑Magistrate to make sure that accused had given confessional statement under absolute freedom without any pressure or coercion having been brought to bear upon him for giving such statement‑‑No other evidence against accused available‑‑Such confession not safe to rely upon." "Confession‑‑Age of witness at time of recording statement under 5.164, Cr.P.C. about 10/11 years‑‑possibility of having given such statements at instance of investigating agency, held, cannot be ruled out."

23. The learned counsel further contended that the medical evidence relied upon by the prosecution itself regarding the time of incident falsifies the confessions in toto, besides the confessions were not corroborated by independent and reliable evidence. He urged that evidence of last seen relied upon by the learned Sessions Judge was no sufficient corroboration to sustain conviction on confessions. According to him as the evidence of last seen was itself tainted one and it could not had corroborated the tainted confessions.

24. In nutshell the crux of his contentions was that the both confessions were faulty, lacked independent corroboration and were not sufficient to base conviction of the appellants, but the learned Sessions Judge had erroneously treated them to genuine, true and voluntarily and sought for corroboration from evidence of Khairo and convicted the appellants.

25. On the other hand Mr. Muhammad Yousuf, the learned Asstt.A.‑G. for the State vehemently defended the judgment of the learned Sessions Judge and stressed that the confessions were recorded after due care and caution by the learned Magistrate of 2nd Class who was specially empowered by the Provincial Government to record it. To corroborate the confessions he submitted that the learned Magistrate was examined in the trial Court where he was subjected to cross‑examination and material was extracted from him to diminish its value and veracity. The learned Asstt.A.‑G. further explained that the law did not provide any special procedure for recording confessions of persons of tender age than that of persons of mature minds. He emphasized that in the attending circumstances the confessions being true and voluntary were rightly relied upon by the learned Sessions Judge and evidence of last seen was sufficient to corroborate them. In support of his contention the learned Asstt.A.‑G. referred to authorities mentioned hereinabove.

26. It is undisputed fact that at the time of the recording of the confessions the both appellants were of tender age. Though no special procedure under the Criminal Procedure Code is provided to record; confessions of persons of tender age, yet a Magistrate recording their, confessions has to be very careful and cautious to exclude even slightest, possibility of extracting confessions from them by threat or undue influence or coercion on account of their tender ages as persons of such tender age are easily susceptible to such things comparatively than that of person of grown up mind. In such position the police) ought to have produced them before a Magistrate of 1st Class who C evidently must had more judicial experience than that of a Magistrate of 2nd Class. Their non‑production to record their confessions before a Magistrate of 1st Class in the circumstances of the case is exceptionable. It creates strong doubt in the mind which badly reflects upon the credibility of the confessions.

27. Appellants being of tender age the possibility of extracting confessions from them on promise, inducement or coercion could not be ruled out especially when they were produced before a Magistrate of 2nd Class who may not had the sufficient experience to exclude such happening which an experienced Magistrate of 1st Class could have very, successfully precluded.

28. In addition thereto a mere glance at 161, Cr.P.C. statements of the appellants recorded by the police during investigation and their 164, Cr.P.C. statements recorded by the Magistrate unveils that more or less the both statements are in same sequence and contain the same words and phrases which in ordinary course are not possible unless copies from each other or referred to at the time of recording. The possibility of the fact that the 161, Cr.P.C. statements recorded by the police were before the Magistrate when he recorded the confessions of the appellants could not be ruled out.

29. Besides the confessions are contradictory with each other, regarding the time of incident, inflicting injuries on person of deceased: the mode of the production of their weapons. In that respect the F learned counsel for the appellants drew my attention to such contradiction in the 164, Cr.P.C. statements of the appellants. The learned counsel for the appellants at the first instance referred to confessional statement of appellant Amanullah where he has stated: (i) "About 12/13 days back I do not exactly remember the date I had taken my buffalo. (ii) Liaquat gave first blow on his shoulder and second on his left hand. (iii) He had taken his hatchet from the jungle and my hatchet was lying there. I told him that it matters not much. Then 164, Cr.P.C. statement of the appellant Liaquat where he has said: (i) The incident took place about 20/21 days back. (ii) Ibmanullah started giving him hatchets blows which he received on his head. (iii) We took our hatchets from the tree and hid in our houses.

30. In spite of all that discussed hereinabove on face of it the confessions are even inconsistent with the prosecution case. At the initial stage the complainant Bahadur Khan and witnesses Shah Nawaz, Shah Baz and Barkat Ali had given a quite different story than that disclosed in confessions by the appellants. The witnesses in F.I.R. and 161, Cr.P.C. statement had implicated Qaiser and Sarwar by caste Dharpalis on account of previous enmity. However subsequently the witnesses have resiled from their earlier statements in result whereof Qaiser and Sarwar were discharged under section 63, Cr.P.C. It may be pertinent: to point out that even after recording the confessions of appellants and discharge of the above‑said two persons the police did not bother to cancel the F.I.R. which in fact occupies its field even today and has been produced and relied upon by the prosecution G regarding the time and place of the incident. For that the explanation of the learned Asstt.A.‑G. was that cancellation of the F.I.R. was not necessary as police could have continued the investigation of the case even without it. In addition thereto the learned Asstt.A.‑G. contended that there was nothing wrong if the F.I.R. was not cancelled. In that context he relied upon P L D 1974 Lah.

256. There is no cavel on the proposition enunciated in the above citation in fact the authority is not applicable with the facts of the instant case and it lends no support to the contention advanced by the learned Asstt.A.‑G. However, the facts remain that the initial F.I.R. still remains intact in the field and has been produced in evidence and relied upon as source of information leading to investigation of the case and the day and time of incident. In absence of any other F.I.R. the present F.I.R. shall be presumed to be the prosecution case at the initial stage of the case which moved the taw ,into motion and shall be deemed to be the prosecution version, in absence of any other version to the contrary. Apart thereto there is visible inconsistency in the confessions and the medical evidence. The medical officer in his statement recorded before the Court of learned trial Judge in unequivocal words has stated that he received the dead‑body of deceased on 14th of May; 1980 at 10 a.m. and he started its post‑mortem there and then. The time between death and post‑mortem was about 10 to 14 hours. Calculating the time according to his statement the incident must had taken place between the late hours of 13th May, and the earlier hours of 14th May. Whereas the appellant Amanullah in his confession has stated: "It happened about 12/13 days back" And appellant Liaquat has stated: "The incident took place about 20 or 21 days back." On the other hand the learned Asstt.A.‑G. for the State termed the above‑said variations of little significance. He abortively tried to explain that these contradictions were quite minor in nature and did not affect the prosecution and particularly the confessions. The explanation on face of it is devoid of force and repelled accordingly.

31. Even the medical evidence also totally belies the prosecution version regarding the time of the incident. According to the prosecution as disclosed in the F.I.R. the incident had taken place on 14th May, 1980 at 2.30 p.m. whereas according to the medical officer it may had taken place either in the late hours of 13th May or earlier hours of 14th May. In addition thereto the time disclosed by the appellants in K their confessions also did not tally with the time given by the prosecution in the F.I.R. The above‑said inconsistencies badly reflects upon the prosecution story which on face renders it false and untrustworthy. Hence I agree with the learned counsel for the appellants that prosecution story is unreliable.

32. In the attending circumstances of the case these inconsistencies discussed hereinabove cannot be ignored so easily as expected by the learned Asstt. A.-G. These inconsistence are of great consequence and sufficient to de-route the base of the prosecution case as a whole and demolish its full structure.

33. In view of the facts and circumstances discussed hereinabove I am of the opinion that the both confessions of the appellants are neither voluntary nor true and no reliance can be placed thereon. Even evidence of last seen does not lend any support to its veracity.

34. Evidence of the last seen by itself is very shaky, unreliable and not trustworthy to base conviction of the appellants. Even the K learned Sessions Judge treated it only as a piece of corroborative evidence to support confessions and not as substantive piece of evidence.

35. The confessions being false and unreliable, evidence of last seen not sufficient and there being no other evidence, the conviction and sentences of appellants cannot be legally sustained which in result are set aside. The appellants are in custody, they may be released forthwith if not required in any other case. . M.Y.H. Appeal accepted