1986 P Cr (PLP)

Briefly stated the prosecution story is that Dil Murad brother of complainant Muhammad Fazal left his house on 6‑8‑1981, to attend a fair at some holy place. He did not return on that night. On 7‑8‑1981, the complainant came to know that a dead body was seen flowing in Lundo canal. They found some blood on the bank of the canal and after searching the dead body for whole night found it on the following morning of 8‑8‑1981, stuck near the bridge. It was identified to be that of deceased Dil Murad, who had a number of hatchet injuries. The complainant reported the matter to police. During the investigation the police secured blood‑stained earth. On the basis of the statement of P.W. Abdul Ghani, who claimed that appellant Jan Muhammad had made extra‑judicial confession before him, the police arrested the appellant. The appellant then pointed out the place of incident to the Investigating Officer and produced blood‑stained Sadri. The blood‑stained earth and blood‑stained Sadri were sent to the Chemical Analyser whose report is in the affirmative. The police then produced the appellant before the Magistrate where he gave his judicial confession. On the basis of above evidence the police challaned the appellant, before A.C.M. Sanghar, who sent the case to Sessions Judge Sanghar, for trial, A charge was framed by the Sessions Judge against the appellant under section 302, P.P.C. to which he pleaded not guilty and claimed to be tried. The learned Sessions Judge took into consideration three points for determination. The first related to the factum of death and its being homicidal. The next related to the connection of the appellant with the crime. The last related to the offence made out against the appellant. He decided all the points against the appellant. There can beg no dispute about the first point The evidence on it was mainly that of the Medical Officer, Dr. Mir Akber, who held autopsy on the dead body on the same day. He has stated that on external examination of the dead body he found the following injuries. "(1) Incised wound 10 c. m. x 5 c.m x 4 c.m on upper part of the left side of the neck, cutting arteries, nerves and muscles of that side. (2) Incised wound 8 c.m. x 3 on left side of the cheek cutting the underlying bone and lower 1/3rd of left ear. (3) Incised wound 9 c. m. x 3 c. m. x 4 c. m. extending from middle side of right side of nose cutting right side of upper lip reaching right side of chin. (4) Incised wound 8 c.m. x 3 c.m. x 3 c.m. just above right clavical at the root of right side of neck. (5) Incised wound 5 c. m. x 2 c. m. x 2 c. m. at lateral side of right eye brow. (6) Incised wound 6 c. m. x 4 c. m. x 3 c. m. on the middle of the right side of neck cutting muscles, nerves and arteries. On internal examination I found the following damage: (1) Abdomen slightly distended with foul smell. (2) Stomach contained semi‑digested food. Other organs were normal. All the above external injuries were ante‑mortem and were caused by a sharp cutting weapon such as hatchet. Injuries Nos. 1, 4 and 6 were individually sufficient to cause death in the ordinary course of nature. The injuries, all collectively, were sufficient to cause death in the ordinary course of nature. From the external and internal examination of the dead body he was of the opinion that death in this case was caused due to shock and heamorrhage as a result of external injuries described above. Death was instantaneous in this case. Probable time between death and post‑mortem examination was about 36 hours. I, therefore, find myself in agreement with the finding on this point given by the Sessions Judge. However, I am unable to agree with the latter two findings of the learned Sessions Judge. The prosecution has led the following pieces of evidence in this case. The first is the retracted judicial confession of the accused. The second is retracted extra‑judicial confession of the accused. The third is recovery of hatchet and blood‑stained Sadri. Surprising enough the Magistrate has not only written in the memo. of confession that it has been recorded on solemn affirmation but has also stated in his evidence that he had administered oath to the appellant 8 and had recorded his statement on solemn affirmation. It is a settled law that confession cannot be recorded on oath. If oath is administered to an accused, the element of fear and compulsion comes in and the confession becomes irrelevant and inadmissible. Reference in this connection may be made to P L D 1956 S C 420 and P L D 1971 Kar.

211. Besides it was the duty of the Magistrate recording the confession to have informed the appellant that he was a 1st Class Magistrate. His having omitted to do so also diminished the value of the confession a Is has been held in P L D 1966 Kar.

242. Coming to the evidence of extra‑judicial confession it may be pointed out that even this confession according to P.W. Abdul Ghani, himself was on oath of "Holy Qur'an" and, therefore, it is equally inadmissible and irrelevant. Apart from that extra‑judicial confession is treated as evidence of the weakest type and cannot be made a basis for conviction as has been held in 1968 S C M R

685. This ruling further holds the retracted judicial confession which is piece of tinted evidence cannot be utilized to corroborate other tainted evidence such' as that of the extra‑judicial confession. The learned Sessions Judge has discussed the evidence of Abdul Ghani, to whom the appellant is said to have made the extra‑judicial confession. He has reproduced relevant portion of his deposition and then has said generally that he was an independent and respectable person and was considered as truthful and reliable by him. He has given no particular reason for believing his evidence on the point of extra‑judicial confession. It would, therefore, appear that both the judicial and extra judicial confession of the appellant are irrelevant and inadmissible and, therefore the same should be excluded from consideration. In P L D 1956 S C 420 where the confession of appellant was recorded on solemn affirmation by a Magistrate, it was held that the administration of oath to an accused person was opposed to public policy and any infringement of the provisions is an illegality which cannot be cured on any principle of consent, waiver or estoppel It was further held that the confession was obtained in an illegal manner and its rejection must flow as a matter of course from this illegality. In P L D 1966 Kar. 242 the Magistrate in his statement in trial Court had stated that he had warned the accused that he was a Ist Class Magistrate. From the record it was not clear if the Magistrate had given such warning. Hence it was held that the confessional statements were inadmissible. Same view has been taken in 1984 P Cr. L J

611. Coming to the recovery of crime weapons it may be pointed out that admittedly the hatchet which was secured at the pointation of the accused was not stained with blood. hence it cannot be treated as a piece of evidence appearing against the appellant. The Sadri, which is also secured at the pointation of the appellant was said to be stained with human blood, according to the report of the Ballistic Expert but it has been admitted by Mashir Amari that it was not sealed by the police after it was secured. Even the Investigating Officer has not stated any where in his evidence that he had sealed the Sadri. Hence this piece of evidence is not free from doubt. In P L D 1969 B.J. 11 where the crime weapon and other incriminating articles were not sealed immediately thereafter, it was held that this evidence was highly suspicious. Even our own High Court in 1972 P Cr. L J 470 has held that where articles were not sealed at the time of recovery, the recovery was held doubtful. It would, therefore, appear that all three pieces of evidence on which the conviction was based are highly doubtful and cannot be made a basis for conviction by any stretch of argument. Mr. S. Sarfraz Ahmed A.A.‑G. has frankly conceded that he does not support the judgment because it is based on irrelevant and inadmissible evidence as well as on the evidence which is highly suspicious and doubtful. I, therefore, allow the appeal and set aside the conviction and sentence of the appellant. I direct that the appellant shall be released forthwith if not required in any other case. M. Y. H. Appeal allowed.