P L D 1952 Baluchistan 31 (PLP)

R. K. M. SAKER, J. C.‑This is an appeal against the judg ment of the Sessions Judge in Baluchistan, dated 22nd August 1951, in which he has convicted the two convict‑appellants, namely Muqarrab Hussain and Hasan Akhtar, under sections 420/467/109, Pakistan P. C., and section 52 of the Post Office Act and has accordingly sentenced them to various terms of imprisonment as well as to fine. In this judgment propose to deal with both the appeals. In this case, in the trial Court, there were three accused of whom only two have appealed, and the evidence of the pro secution is based mainly on the confessional statements of two of the accused, namely Muqarrab Hussain and Khushi Muhammad who has not appealed, together with certain corroborative evidence. ''The brief facts of this case are that after partition certain Muslim refugees transferred their Post Office Savings Bank accounts from India to the Quetta Post Office The relevant Pass Books were also duly received.. It is alleged that K. B. Muhammad Ayyub Khan transferred four 'accounts from the Ambala Post Office in his own name as well' as in the names of his son, his wife and his daughter ; and he duly obtained a receipt from Post Office for the Pass Books. Appellant Muqarrab Hussain, who was working as a Packer in the Post Office, is alleged to have taken away the Pass Book in the name of the wife of Muhammad Ayyub Khan and 'with the help of Khushi Muhammad and Hasan Akhtar he withdrew a sum of Rs. 3,000 on 13th November 1948 and again Rs. 1,500 on 17th November 1948 from the account. Since this judgment will deal with both the appeals I propose to consider each‑case individually. I, therefore, pro pose to examine the evidence as it stands in relation 'Muqarrab Hussain. In the first place, it is necessary to examine the confession made by the accused. This confessional statement is .a long and detailed one and the first paragraphs purport to give some back‑ground to the circumstances under which this 'particular crime was committed by the accused. These circumstances do not have any direct relation to the case before me and may, therefore, be excluded. The relevant portion, therefore, of the confessional statement is reproduced below :‑ "Thinking that Ghulam Nabi and Rahmat Khan had made plenty of money by using me as instrument I wanted to try my own hand at this time. I got hold of S. A. Book from the almirah (No. 53608 in the name o Muhammad Ayyub) and took it to one Hasan Akhtar, a clerk in M. E. S. who lived with me. I explained to him the whole matter and conspired with him. He agreed to assist me. He completed the Withdrawal Form Ex. P/C and signed the name of Depositor Muhammad Ayyub in Urdu on it. The form was given to Khushi Muhammad again who posed as Muhammad Ibrahim, brother of Muhammad Ayyub, and drew Rs. 3,

000. Rahmat Khan paid the amount after completing necessary formalities. This was done on 13th November 1948. Again on 17th November 1948 Hasan Akhtar filled another withdrawal form at my instance for drawing another sum of Rs. 1,500 from S. B. Account No. 53608 standing in the name of Muhammad Ayyub‑Ex. P/D. This form was also presented before Rahmat Khan who after observing necessary for malities paid Rs. 1,500 to Khushi Muhammad who received the money as Muhammad Ibrahim, brother of Muhammad Ayyub. Hassan Akhtar had asked me to bring the relevant leaf from the Ledger Account for correction as Muhammad Ayyub's account had not been finally transferred to Quetta. I took two leaves and he made necessary alterations therein indicating that the account had been finally transferred. I put these two sheets back in the Ledger Book at their proper place. Out of Rs. 3,000, I got Rs.1,550, Hassan Akhtar Rs. 1,400 and Khushi Muhammad Rs.

50. As regards the other sum of Rs. 1,500 withdrawn on 17th November 1948, Rahmat Khan seized Rs. 1,000 out of it by threatening me while Khushi Muhammad and I got Rs. 50 and Rs. 450 respectively. Ghulam Nabi and Rahmat Khan also removed one Kitson lamp from the Stationery godown of the Post Office. I destroyed the relevant leaf of the Ledger and also of the S. A/C Book of Muhammad Ayyub containing entries regarding withdrawal of Rs. 3,000 and Rs. 1,

500. Later I destroyed the Saving A/C Book itself. Khushi Muhammad had‑with him S. A. Book No. 53079 in the name of Muhammad Ibrahim while Riyasat had with him S. B. A/C Book No. 53171 belonging to Muhammad Abdullah while the book belonging to Tailor Master was also with Riyasat: But this statement was subsequently retracted in the trial Court on the grounds that some inducement had been made to Muqarrab Hussain. It is a well known principle that a retracted confession, unless corroborated in material particulars, is not likely to be sufficient evidence on which a conviction could be sustained though there is no law which precludes conviction on the sole evidence of a retracted confession‑in the case of‑the maker of the confession. Before proceeding to consider whether this confessional statement is voluntary, it is necessary to see whether there is any corroborative evidence to support it. In my view, the most important evidence is that of the confession made by the co -accused Khushi Muhammad and it is relevant to note that both these confessions were made on different dates to different Magistrates. The confession of Khushi Muhammad is also reproduced below:‑ "I belong to Punjab, District Jhelum. I have been serving as a Langri for the last eight or ten years in the Civil Thana Quetta. Muqarrab Hussain packer was introduced to me by Muhammad Riyasat a constable of Civil Thana about four months ago. Muqarrab Hussian often visited my place and he became an intimate friend of mine. One day he came to me and requested me to lend him Rs. 100 as he was badly in need of money which I gave him. He executed receipt in his own hand and gave it to me. I demanded my money from him several times but he assured me that he would pay it shortly. On 13th November 1948 Muqarrab Hussain brought a Savings Account Book to me and told me that the book belongs to his nephew Muhammad Ayyub and wanted me to withdraw Rs. 3,

000. He further induced me to sign on the withdrawal form as Muhammad Ibrahim and draw the amount from the Post Office. The withdrawal form was filled in by Hassan Akhtar who is working as M. E. S. clerk. Hassan Akhtar signed in Urdu the name of Muhammad Ayyub he as well as signed in Urdu Muhammad Ibrahim Ex. P/C the withdrawal form. This form was given to me which I presented at the Post Office to Rahmat Khan who was at the counter at that time, who told me to sign on the withdrawal form. I signed as Muhammad Ibrahim in my own hand. Then Rahmat Khan gave me three bundles of currency notes worth Rs. 3,000 of ten rupees each. As soon as I came out of the Post Office Muqarrab Hussain met me outside the Post Office and took me on his cycle to his house, where he took the entire amount of Rs 3,000 from me and then after a while he gave me five notes of Rs. 10 each and told me that he would pay me the balance of Rs. 50 when he would draw Rs. 1,

500. Hassan Akhtar is in league with the accused Muqarrab Hussain, because on lath November 1948 he and the accused came to my place and handed over me the Withdrawal Form P/C. On 17tH November 1948 again the accused Muqarrab Hussain and Akhtar Hussain came to my place and gave me the Withdrawal Form P/D for Rs.1,

500. Hassan Akhtar again signed Muhammad Ayyub in Urdu and English. He also signed as Muhammad Ibrahim on the Withdrawal Form Ex. P/D. I took this to the Post Office and presented it to Rahmat Khan who was on the counter at that time, who told me that the form was filled incorrectly and gave it to me. When I came out of the Post Office Hassan Akhtar met me outside the Post Office at the main gate and took me to Muqarrab Hussain's house where he corrected the Ex. P/D Withdrawal Form and then gave it to me. I came again and presented the Withdrawal Form Ex..P/D to Rahmat Khan who was at the counter and he told me to sign which I did so and signed as Muhammad Ibrahim in Urdu in ‑my own hand. Rahmat Khan gave me fifteen notes of Rs. 100 each. When I came out of the Post Office Muqarrab Hussain was waiting for me outside the Post Office on the road and demanded the Savings Book and the money which I gave to him. He took out five notes of Rs. 10 each from his pocket and gave it to me." In recording the confession of Muqarrab Hussain, the Magistrate concerned asked whether he had been tutored or tortured or otherwise, maltreated by the Police to which Muqarrab Hussain answered in the negative. The matter rests there in so far as the recording of the confession is concerned, I am, however, immediately struck by the wealth of detail which has been incorporated in the confession. Muqarrab Hussain is only a packer in the Post Office and the date on which the confession was recorded was the 20th January 1949 whereas the alleged offence took place approximately two months earlier. While human memory is undoubtedly short, it seems‑unusual that a man of this status should be able to remember no less than three dates on which various actions relating to the crime took place. All these dates are recorded in the confession. An even more unusual circumstance relating to the record ing of this confession is the fact that various documents, which now form exhibits in this case, have been mentioned in the confession. The confession, which is drawn up in narrative form, does not at all indicate that Muqarrab Hussain required the Magistrate to bring to his (Muqarrab Hussain's attention certain documents in order to refresh his memory and it is therefore obvious that at the time the Police sent Muqarrab Hussain up to the Magistrate for recording his confession the entire documents were also sent to the Magistrate. It is relevant to note that Muqarrab Hussain had been in. Police custody for seven days prior to the date on which he confessed and that he was produced direct from Police custody for this purpose. While I can find nothing improper or illegal in making mention of certain documents in a confession which are sub sequently exhibited when the case is challaned in a Court, the action of the Police in sending all these documents to the Magistrate who recorded the confession, unless they had been sent for at the request of the person confessing, is something which is liable to cast doubt on the authenticity of the entire confession, for there is liable to be a strong presumption that the confession itself is a tutored one. The circumstances here indicate that Muqarrab Hussain was seven days in Police custody when he was produced from Police custody to confess and that when his confession was recorded all the relevant documents were then made available, apparently without his asking for them, in order that he might refresh his memory as to the circumstances of this case ; and finally the confession has been retracted. Although the opening portions of the confession have not been reproduced in this judgment, they implicate two. Post Office clerks in other crimes and that portion of the confession, which is relevant to the case before me, also makes mention of the fact that Rahmat Khan, one of the Postal clerks, is alleged to have taken his share of Rs. 1,000 from the second withdrawal of Rs.1,

500. Rahmat Khan is the only witness in this case who can give corroborative evidence against Muqarrab Hussain with the exception of the other confession made by Khushi Muhammad. Since the above observations regarding the authenticity of this confession will apply with equal force to the confession of Khushi Muhammad I do not feel disposed to take either of these confessions as necessarily corroborative evidence of each other. In reviewing the confession of Muqarrab Hussain as a whole, it is generally accepted that portions of a confession alone cannot be used but that a confession must be examined in toto. The proposition therefore is either the contents of the confession are true, in which event both the Postal clerks are implicated and the' evidence of one of them, namely Rahmat Khan, must be considered as unreliable in this case ; or if the confession is riot true, or has been induced or made involun tarily, the case itself must fail if there is no other independent evidence. In all the circumstances there is, in my view, a very grave element of doubt as to the authenticity of the confession itself. The contents of the confession, for all I am aware, may be true, but since I consider it is more than probable that this confession is a tutored one it cannot be used in evidence against the person who makes it. Since the confession‑seeks to implicate the only important prosecution witness in this case in the crime, I cannot place reliance on the evidence of this witness as being evidence of corroborative value I must therefore give the benefit of the doubt to Muqarrab Hussain. I accordingly accept the appeal and acquit the convict‑appellant Muqarrab Hussain. In the case of accused Hassan Akhtar, the conviction ‑in the lower Court has been based on the two retracted confes sions of the co‑accused together with the evidence of the expert on hand‑writing who has stated definitely that the signature "Muhammad Ayyub" is the same as on other documents which are admitted to be in the hand‑writing of Hassan Akhtar. It is a general rule that the confession of a co‑accused stands on a lower footing than the statement of an accomplice which is made on oath and which can be tested by cross‑examination. While it is generally accepted that even the statement of an accomplice would require corroboration, the need for the corroboration of the confession of a co‑accused is still greater. And, as I have already stated, the confession of one co‑accused cannot corroborate the confession of another co‑accused as against the non‑confessing accused. In this case since both confessions are retracted, it would be essential that strong corroborative evidence should be available before the conviction of the accused Hassan Akhtar could be allowed to stand. The record indicates that the only other evidence is that of the hand‑writing expert. I do not, however, consider that this evidence is sufficient to uphold the conviction of this particular accused. Since I cannot rely on either of the confessional statements unless they are corroborated in all material particulars ; and since it is equally a general rule that the evidence of any expert, while of assistance to the Court, is not to be taken as binding upon it, there is in my view, a considerable element of doubt in this case. I must therefore give the benefit of the doubt to this accused. Accordingly' I accept the appeal and set aside the sentence passed. The convict‑appellant shall be released immediately. In reviewing the case at large, I must express my surprise at the manner in which the police have acted in this case. Reliance for the prosecution has throughout been placed on the two confessions of two of the accused, and three accused, persons have been challaned in this case .as a result of these confessions. It is difficult to understand why the police refrained from challaning the two clerks who are both mentioned in the confession of Muqariab Hussain since it is obvious that a packer, who is in the position of a peon only, and is therefore in a subordinate position, could not have committed this crime without the active connivance and assistance of the clerks concerned. There is no denying that defalcations have been committed and this judgment, which acquits the two accused, gives them the benefit of the doubt for reasons already stated. It does not seek to infer that no crime has been committed. The only conclusion I can draw from the entire record and proceedings is that certain persons only have been challaned while the two other conspirators, without whose assistance the defalcations could not have been carried out, were, for reasons best known to the Police, not proceeded against. A. H. Appeal accepted.