P L D 1957 (W (PLP)

SHABIR AHMAD, J.‑

By his order dated the 14th of November 1956, Mr. Azam Ali, who was then Sessions Judge, Multan, convicted Muhammad Ramzan alias Ramzan and Sardar Muhammad alias Saddu, for the offence of murder and abetment of murder respectively and, while sentencing the; former to death, passed a sentence of transportation for life in the case of the latter. The learned trial judge referred the case to this Court for confirmation of the sentence of death as required by section 374 of the Code of Criminal Procedure and the condemned man has put in an appeal (Criminal Appeal No. 836 of 1956) through Khwaja Abdur Rahim, Advocate, while his co‑accused has sent an appeal (Criminal Appeal No. 251 of 1957) through jail authorities. The two appeals and the reference for confirma tion which arise out of the same trial will be disposed of by this order. The learned trial Judge has found that the prosecution had succeeded in establishing that the death of Muhammad Shafi with regard to whose murder the two appellants have been sentenced resulted from poisoning with arsenic and that the poison was administered by Ramzan appellant to whom it had been supplied by Saddu appellant for that purpose. The prosecution case was that as Ramzan appellant, who was a cousin of Mst. Faizan, who used to be the wife of the deceased, was seen by the deceased trying to take liberties with her there was a quarrel between the husband and the coveter of the woman. Some days after that quarrel Muhammad Ramzan appellant took Muhammad Shafi deceased, who was distantly related to him, to a milk- seller's shop and sending him out of the shop to buy some loaves of bread mixed arsenic in a cup of milk meant for the deceased. When the deceased returned the cup of milk was drunk by him and the two left the shop and shortly after parted, each going to his own house. When Muhammad Shafi reached home, he felt unwell and the next day breathed his last. The only direct Evidence with regard to the arsenic having been administer to the deceased by Ramzan appellant is the confession o this appellant which was recorded under section 164 of the Code of Criminal Procedure by a Magistrate of the first class but which was subsequently resiled from, as well as a similar confession made by Saddu appellant which too was resiled from by its maker. The confession of Saddu goes only to this length that he had supplied arsenic to the other appellant who had told him that he wanted to do away with Muhammad Shafi. With regard to the fact that there had been a quarrel between Ramzan appellant and Muhammad Shafi deceased over the behaviour of the latter towards the wife of the former, there is the statement of the wife, Mst. Faizan, who appeared as P. W. 14 at the trial. This statement of Mst. Faizan is corroborated by that of her mother, Mst. Bakht Bhari (P. W. 15), neither of which is there any reason to doubt. Rahmat Ullah (P. W. 18), who has a milk‑seller's shop in Bazar Churi Sarai of Multan City, deposed that about 7‑30 or 7‑45 p.m. on the 15th of February 1956 Ramzan appellant and Shafi deceased had gone to his shop and he had given them milk in two separate cups. Ramzan appellant asked him for bread and he offered them dabal roti but the customer said that he wanted ordinary baked bread. Shafi deceased left to bring the baked bread, while Ramzan appellant kept sitting in the shop with the two cups of milk lying near him. When Shafi returned with some loaves of bread about ten minutes later, he and his companion had some bread and drank the milk, after which they went away. The witness added that on the 19th of February 1956 Ramzan appellant came to his shop in company of the police. The statement of P. W. 18 is corroborated by that of Muhammad Hussain (P. W. 21) who deposed, inter alia, that Shaft deceased and Ramzan appellant went to the shop of a milk‑seller in Bazar Churi Sarai to drink some milk. He added that he himself was offered a cup of milk but as he was not feeling well, he declined the offer and went away. The next day he learnt that Shafi lay ill at his house and was being given medical aid by the compounders of a doctor, who recorded a statement of Shafi. The recorded statement of the deceased mentioned by P. W. 21 is Exh. P. A. on the record and was relied upon by the prosecution as a dying declaration. The learned trial judge, however held that it was not safe to hold that Exh. P. A. was made by the deceased and kept this piece of evidence out of consideration. He based the conviction of the two appellants on the confessions mentioned above coupled with the fact that Ramzan appellant had pointed out the shop of Rahmat Ullah (P. W. 18). I am not satisfied that the statement Exh. P. A. was kept out of consideration for valid reasons but as the learned trial judge has not chosen to act on it, I too will keep it out of con sideration. When questioned to explain the evidence against them, the appellants denied their guilt. Ramzan appellant denied that he had administered arsenic to Shafi deceased and while admitting the making of a confession before a Magistrate said that it had resulted from a beating given to him by the police. Saddu appellant also denied his guilt and said about his confession recorded by a Magistrate that it resulted from the torture of the police. No evidence was produced in defence. Before dealing with the other evidence I will take up the pointing out of the shop of Rahmat Ullah P. W. by Ramzan appellant which circumstance has been used by the learned trial judge against Ramzan appellant. I am of the view that the fact that Ramzan appellant gave information which led to the discovery of Rahmat Ullah (P. W. 18) and his shop which is proved to have been the place where the poison A which proved fatal was administered to the deceased cannot be said to be the discovery of a fact for the purposes of section 27 of the Evidence Act because it is only under that section that the statement of Ramzan Appellant with regard to the shop of Rahmat Ullah can be made admissible in evidence. I am not unaware of the fact that at least one judicial decision of the Madras High Court has taken the view that the discovery of a witness is discovery of a fact for the purposes of section 27 of the Evidence Act but some other decisions with which I am in respectful agreement, have taken a contrary view, which accords with the view which I hold. I will now deal with the evidence that the deceased and Ramzan appellant went to the shop of Rahmat Ullah (P. W. 18) where the deceased drank milk, after some hours of taking which he felt unwell. It is true that Rahmat Ullah (P. W. 18) admitted that he could not remember all the customers that came to him but with regard to Ramzan appellant there was a peculiar fact which makes his identifi cation by the witness by no means suspicious and that fact is that three days later Ramzan, appellant went to the shop of P. W. 18 in the company of the police. In addition, there is the clear statement of Muhammad Hussain (P.W. 21) that the deceased and Ramzan appellant had gone to the shop of Rahmat Ullah (P. W. 18) with the object of drinking milk. It is established that while at the shop Ramzan appellant sent Shafi deceased away for some time and had thus ample opportunity to put anything that he liked in the cup of milk which he meant Shafi deceased to drink. This evidence, however, taken by itself will not materially advance the prosecution case. The confession which Ramzan appellant admits having made before a Magistrate is Exh. P. M. which was recorded at about 1 p.m. on the 20th of February 1956 by Mr. A. M. Khalid, who was those days a Magistrate of the first class in Multan and who appeared as the third witness for the prosecution at the trial. The record prepared by the Magistrate as well as his deposition 'prove conclusively that he took all prosecutions to ensure that the confession was voluntarily made by Ramzan appellant. In this confes sion Ramzan appellant said that he had illicit intimacy with Mst. Faizan P. W. and when Shafi saw him taking liberties with his wife the husband had taken it ill and beaten him and declared that he would, in retaliation, rape his sister who lived in village. Bosan. He added that he went to village Bosan and contacted his co‑accused who gave him arsenic and charged him Rs.

10. After getting the poison he came to Multan and on a suitable opportunity arising took the deceased to a milk‑seller's shop where he bought milk for both of them and sent the deceased out on the pretext that he should buy loaves of bread and in his absence put arsenic in the milk meant for Shafi deceased. I have very carefully considered the evidence relating to the confes sion and have arrived at the conclusion that the confession did not result from any inducement, threat or promise and cannot be kept out of consideration. With regard to the confession made by Saddu appellant the record of which is Exh. P. N., there is the deposition of Mr. A. K. Khalid, Magistrate 1st Class (P. W. 3), who recorded it on the 22nd of February 1956 at about 1 p.m. In his confession Saddu appellant admitted that knowing fully well that arsenic was meant for administration to Shafi he supplied it to Ramzan and in fact the confession shows that this method of. doing away with of Shafi was suggested by the maker of the confession, himself. All necessary pre cautions to ensure that the confession was voluntarily made were taken by the Magistrate who recorded it, as is clear from the record of the confession and the deposition of the Magistrate who recorded it and who appeared as the third witness for the prosecution at the trial. There is no evidence, direct or circumstantial that it was as a result of any induce ment, threat or promise that the confession was made by Saddu appellant before a Magistrate who warned him that the confession could be used as evidence against him and, there‑ fore, there is no ground for keeping the confession of Saddu either out of consideration. The main evidence against each of the two appellants, therefore is his own confession and the confession of his co‑accused which tars the maker with the identical brush with which it tars his co‑accused. The confession of a co‑accused can be taken into consideration against an accused person under the provisions of section 30 of the Evidence Act, though naturally it is not as strong a piece of evidence as the confession of an accused person himself. In law there is nothing to prevent a retracted confession forming the sole basis for the conviction of its maker but prudence requires that such a confession should be corroborated in, some material respect in order that all risk of an innocent man who had been foolish enough to make a confession before a Magistrate being found guilty of an offence should be obviated. The degree of corroboration in respect of a retracted confession will depend on the circumstances of each case and no hard and fast rules can be laid about this matter. It should be borne in mind that at the time when Ramzan appellant made his confession nobody in Multan was certain that the death of Shafi deceased had resulted F from arsenic and on that day the Chemical Examiner to, the Government of West Pakistan arrived at the conclusion, as is clear from his reports which are Exhs. P. S. and P. T. on the record, that arsenic had been used to do away with the person whose viscera and vomit had been sent to him for chemical examination. The retracted confession of Ramzan appellant, corroborated as it is by the retracted confession of his co‑accused, is, in my opinion, sufficient evidence to c prove that he administered arsenic to Shafi deceased, though if either of these pieces of evidence had stood alone I would have considered it unsafe to base the conviction thereon. The weight of the above‑mentioned evidence is by no means weakened by the established fact that Ramzan, appellant took Shafi deceased to a milk‑seller's shop where he gave him a cup of milk for putting poison into which he had more than ample opportunity when the victim left the shop of the milk‑seller to buy loaves of bread. There can be no manner of doubt that it was a clear case of murder and consequently I would uphold the conviction of Ramzan appellant under section 302 of the P. P. C. Coming to the case against Saddu appellant, the evidence against him is his retracted judicial confession and the retracted judicial confession of his co‑accused. I have held that the confessions were voluntary and am satisfied that D the retracted judicial confession of Saddu appellant receives such corroboration from the retracted judicial confession of his co‑accused as to justify his conviction for the offence of abetment of murder. The conviction of Saddu appellant also is therefore, upheld. This leaves only the question of sentences of the appellants to be dealt with. Saddu has already received the minimum sentence prescribed by law for an offence of murder and his sentence cannot be interfered with. With regard to the sentence of Ramzan appellant,, there is no ground to interfere because he, by very treacherous means, caused the death of an unsuspecting man whose only fault was that he could not brook the liberties which Ramzan appellant took with his wife. Finding no ground for interference with the sentence of death imposed on Ramzan appellant, I would confirm it and dismiss both the appeals. MASUD AHMAD, J.

I agree. A.H. Appeals dismissed.