P L D 1960 (W (PLP)

The accused denied the charge and said that the confession made by him was not true. He had been beaten by the police and made to say all that they wanted him to say. His mother had been called and a threat to disgrace her was given to him. In the Court of the learned Sessions Judge, the accused definitely said that the S.

1. P. had also told him that he would be excused if he confessed. He did not tell him (the accused) that if he did not confess, the accused would not be returned to the police. In other words, the allegation is that since he was being sent back to the police, he was induced to make a confession. In the trial Court he denied all the allegations contained in the prosecution evidence and said that the complainant had a dispute with him on account of family affairs and hence this case was instituted against him. On behalf of the accused, it was argued before the learned Sessions Judge that the confession was not admissible. There was no corroboration of this confession. It was on the other hand contradicted by Kadu witness. The assessors found the accused guilty. The learned Sessions Judge also thought that in this case the confession of the accused was voluntary and true. It was supported by the identification of his footprints and the recovery of the spade. There was a motive for the accused to kill Nazo because the love affairs was so notorious that even Wadero Allahwarayo had come to know of it and had heard the `Kafi' which Kadu had composed on Nazo deceased. He accordingly found the accused guilty and sentenced him to death. In appeal, it was argued before us that the accused was arrested merely on suspicion and nobody had really seen the accused and the deceased going together. There was no professional Pagi to identify the footprints.. It was merely a conjecture. The retracted confession was neither corroborated nor supported in any material particular and it could not be relied on. There was no recovery worth the name. No body informed the police of the incident at night and next morning when the corpse was discovered people started finding out who the culprit could be. The report was made very late and the S. I. arrived on the spot only on 27th at 1 p.m. We have heard the counsel far the appellant at length and also the counsel appearing for the State and have read the evidence in this case. We have come to the conclusion that the prosecution case" is not free from reasonable doubt. This reference must therefore be rejected and the appeal allowed. It seems to us that the learned Sessions Judge has been impressed by the confession of the accused which he has retracted. We are, however, of the opinion that this confession cannot be relied on because the accused was with the Magistrate only for about an hour. He came to Court from the police custody and A was sent back to the police custody. He has explained this in his statement before the learned Sessions Judge (at page 47). It shows that he knew that he would be sent back to the police custody and, therefore, he made the confession. We feel that it is a settled rule of evidence that a retracted confession must be corroborated in material particulars and it would not be prudent e to base conviction on the strength of that retracted confession alone. The evidenciary value of this retracted confession should depend on the support which it gets independently. In this case, we find not only support is lacking but that there are circum stances which make us feel that the confession was not even voluntarily made. Firstly, that the accused was for 24 hours in the Thana throughout in police custody before and after the confession and secondly, in his confession a request for showing kindness to him had been made. It was argued on behalf of the prosecution that the request of showing kindness to the accused in the name of God as a beggar, shows that he actually committed the crime and begged to be pardoned. On the contrary, however, it can also mean, as it has actually been alleged, that inducement was given to him and that is why he asked for pardon in the beginning. He knew that he would be pardoned by the police to whom he was coming back. , Our feeling is that the confession was probably the result of an inducement. It is strengthened by the fact That the accused remained throughout in police custody and he was sent back to the police custody a course of action which has unequivocally been condemned by several Rulings of the Lahore High Court (A I R 1936 Lah. 278‑292). The accused is said to have stated in the Court of the Sessions Judge that a threat was given to him to disgrace his mother. It appears from the statement of the S. I. that the mother of the accused was examined by the police. The learned counsel for the State pointed out that the accused had no reason to entertain any fear of ill treatment to her mother in case he did not make the statement. We however think that the crime, in which, he was involved, was of a nature which attracted little sympathy for him in the community where he was living and a slight inducement from police or any threat must have made him agreeable to accept pressure to confess his guilt. Apart from the fact that the confession was not voluntary, we find that it is not supported by evidence. The most' material witness, in this case, would have been the boy who used to graze the cattle along with the deceased. This witness Khan is aged 10 years. He said that the deceased was asked by the accused to go with him to fetch accused's shoes lying in the field and then bring the clothes of the accused from Butro village from the tailor. The deceased was not willing to go with him and so the accused put old' Angesha on Nazo's head and put that around Nazo's neck and pulled it. This made the deceased go with the accused. The witness said that he and other persons came home along with the cattle and the deceased did not return. Who those other persons were, we do not know. The witness also said that the deceased raised no cries when he went with the accused nor did any other person raise the cry. He said that he did not inform anybody that the accused had taken away Nazo. He informed his own father only next day. This means that by that time nobody thought that the accused had any evil intention. Allahwarayo the brother of the deceased and the complainant should have been the first men to contact this witness and other persons who were with the accused and the deceased and enquire about the deceased but it seems that he did nothing of the sort and no one ,had any suspicion that, Nazo would be killed. He said to Court in reply to a question that he had gone to P. W. Khan's house at night but the boy had taken his food and had gone to sleep. This is somewhat unnatural because the deceased was dragged by the accused. He was taken away by force Khan must have informed his parents and it must have given alarm to a boy of ten who could not keep quiet. It further appears that this witness Khan is not mentioned in the F. I. R. It is quite clear that neither Khan nor other persons grazing buffaloes were mentioned in ‑the F.

1. R. and they were not produced in Court. Allahwarayo did go to Khan in the night but he found him asleep. If Khan had really gone with the deceased and the accused, Allahwarayo would have got him awakened from the sleep and ascertained the facts and gone to Hashim at once to get news of his younger brother. We further think that the cattle must have come back before sun set as at that time the cattle go for food. The disappearance of the deceased, therefore, must have caused anxiety among his parents. They must have approached Khan and others who had gone with the deceased. No clue was found till next morning when the whole story seems to have been developed. The record shows that the statement of Ghulam Kadir made before the Magistrate (page 33) had to be accepted in evidence as he is not traceable. Kadir said that the deceased was not speaking to him while the former was on speaking terms with the accused, and it was at the instance of the accused that the deceased had stopped talking to the witness. This had gone on for a month before the murder. The accused could, therefore, have no motive to kill Nazo deceased. On the other hand, witness Ghulam Kadir with whom the deceased had stopped talking for sometime and who had composed a poem on this incident is not traceable now. We are unable to fix any motive which could have induced the appellant to kill Nazo in such a brutal manner. The recovery of the spade is of no significance in view of the circumstances mentioned above and we cannot depend upon the identification of footprints. P. W. 6 Ladho was not a profes sional expert and he cannot be relied on. There is thus no corroboration of the retracted confession of the appellant Hashim. For the reasons given above, we set aside the order of the learned Sessions Judge, reject the reference and allow the appeal. The accused should be set at liberty if he is not wanted in any other case. MUMSHI, J.‑I agree with the conclusions reached by my brother. K. B. A./A. H. Appeal accepted.