1988 P Cr (PLP)

The appellant was tried under section 302, P.P.C. before the learned Sessions Judge, Dadu in Sessions Case No. 440/84, who has convicted him under section 302, P.P.C. and sentenced to suffer imprisonment for life, and to pay fine of Rs.5,000 and compensation of Rs.10,000, or in default R.I. for one year each vide judgment dated 15th July, 1987. The brief facts of the prosecution case are that on 30‑10‑1984 one Muhammad Moosa lodged a report at 8‑30 p.m. at P.S. Johi inter alia alleging therein that on the day of incident complainant Muhammad Moosa and his step‑brother Haji Haroon had gone from village Khanpur to village Muhammad Khan Jamali to meet their sister Mst. Hurmat wife of Faqir Muhammad. They reached Khanpur at 11‑00 a.m. and met their sister Mst. Hurmat as well as Mst. Bibi step‑mother of complainant Muhammad Moosa and real mother of Haji Haroon. After sometime their relative Rehmatullah came there and took all of them to his house which was situated in the same village. At about 1‑00 p.m. Abdul Majeed step‑son of Mst. Hurmat came in the house of Rehmatullah armed with gun, and asked Haji Haroon as to why he had come in their house in spite of the fact that he was forbidden repeatedly. Saying so he levelled the gun at Haji Haroon on which complainant Muhammad ‑Moosa, Rehmatullah and two ladies raised cries apprehending that accused Abdul Majid might shoot him, but the accused did not listen to them and fired straight at Haji Haroon who fell down on the ground and died. The complainant and others did not go near the accused due to fear. The accused then went away towards west. The complainant then left the witnesses at the Wardat, went to P.S. Johi and lodged his report, which was recorded by S.H.O. Allah Bux, and the F.I.R. has been produced as Exh.

7. After recording the F.I.R. S.H.O. Allah Bux visited the place of incident, secured blood‑stained earth and one crime empty from there, and prepared such Mashirnama in presence of Mashirs Ghulam Kadir and Muhammad Soomar, the Mashirnama has been produced as Exh.

16. He also prepared inquest report, which has been produced as Ex.17. He then sent the dead body of deceased Haji Haroon to Medical Officer Johi through F.C. Mehrab for post‑mortem examination and report. He examined P.Ws Rehmatullah, Mst. Bibi, and Mst. Hurmat. On 4‑11‑1984 he arrested accused Abdul Majid from "Chandan Mori", under Mashirnama which has been produced as Ex.

18. The accused then led him to steel mori of Johi Branch and produced a .12 bore single barrel gun and two live cartridges, before him which he secured, and prepared such Mashirnama in presence of Mashirs A . S.I . Adam Khan and H.C. Muhammad Achar, the Mashirnama has been produced as Ex.14. On his return to the P . S . he registered a separate case against the appellant for offence under section 13‑D of the Arms Ordinance, as the accused had failed to produce licence of the said gun before him. On the same day he got the confession of the accused recorded before Mukhtiarkar and F.C.M. Johi. On 13‑11‑1984 he got 164 Cr.P.C. statements of P.Ws Rehmatullah and Mst. Bibi recorded. He then sent the blood‑stained articles to the Chemical Examiner, and the crime empty and the gun alongwith cartridges to the Ballistic Expert. After completing the investigation he challaned the accused before Civil Judge and F.C.M. Johi. A formal charge was framed against the appellant to which he pleaded not guilty. At the trial prosecution examined complainant Muhammad Moosa P.W.1, Mst. Bibi an eye‑witness P.W. 2, Rehmatullah an eye‑witness P.W.3, Dr. Abdul Karim P.W.4 who had conducted post‑mortem on the dead body of Haji Haroon P.W.4, Mashir Muhammad Soomar P.W.5, he has produced Mashirnama of Wardat as Ex. 16, inquest report as Ex.17 and Mashirnama of arrest as Ex.18, Mr. Tariq Ahmad F.C.M. who had recorded the confession of the appellant P.W.5, he has produced confession of the appellant as Ex.22, Allah Bux S.H.O. P.W.7 who had carried on the investigation as mentioned above. He has produced the Chemical Report as Ex.25 and Ballistic Expert Report as Ex.26, and H.C. Muhammad Achar who had acted as Mashir of recovery of gun, and the Mashirnama has been produced as Exh.24. After close of the prosecution case the statement of the appellant was recorded under section 342, Cr.P.C. in which he denied the allegations and alleged that the witnesses were interested. Regarding confession he stated that the S.H.O. had threatened to call his mother and sister at the P.S. and disgrace them. He also examined himself on oath as envisaged by the section 340(2), Cr.P.C. in which he denied the allegations and alleged enmity with the witnesses. He further stated that P.W. Rehmatullah had enmity with his father due to murder of his sister by co‑Mashir Ghulam Kadir brother of Rehmatullah. There was a dispute over land left by Meer Muhammad, The learned trial Judge discarded the ocular evidence and recovery, but convicted the appellant while relying upon his retracted judicial confession. The present appeal is directed against the said confession. I have heard Mr. Muhammad Hayat Junejo, learned counsel appearing for the appellant, Mr. Rasheed Tariq Khan, learned counsel appearing for the State, and have gone through the R & P of the case. It was contended by Mr. Muhammad Hayat Juneje, learned counsel appearing for the appellant that the learned trial Judge having discarded ocular evidence and recovery of gun from the appellant had erred in convicting the appellant on the basis of retracted judicial confession which was not corroborated by any independent evidence He has further contended that the appellant was arrested on the night of incident and the S.H.O. had wrongly shown his arrest to be on 4‑11‑1984. In this connection he pointed out the admissions made by complainant Muhammad Moosa, and P.W. Muhammad Achar That the learned Magistrate who recorded the confession did not administer mandatory warnings to the appellant and even certificate with regard to his satisfaction was not appended by him. That the confession was in conflict with prosecution story as well as medical evidence, and could not be considered as true. In support of his contentions the learned counsel has relied upon 1968 P Cr. L J 1550 and 1974 P Cr. L J

313. Mr. Rasheed TariqKhan learned counsel appearing for the State has contended that since the appellant was convicted solely on the basis of retracted judicial confession which was recorded after 3/4 clays after his arrest as admitted by the witnesses. That the learned First Class Magistrate had failed to append mandatory certificate regarding his satisfaction that the confession was true and voluntary, and since it was not corroborated by any other source he would not support the confession. I have considered the contentions of the learned counsel. In the present case the prosecution had relied upon 3 pieces of evidence in the trial Court namely ocular evidence of complainant Muhammad Moosa brother of deceased, Mst. Bibi mother of deceased, and Rehmatullah cousin of the deceased, recovery of gun in presence of H.C. Muhammad Achar and A.S.I. Adam Khan, and the judicial confession recorded by Mr. Tariq Ahmad F.C.M. The learned trial Judge discarded the ocular evidence on the ground that the witnesses were interested, inimical and had come from far off distance. That there were contradictions in their evidence and that there was delay in recording the F.I.R. which went a long way to show that the alleged eye‑witnesses were not present That there was enmity between Rehmatullah and appellant. The learned trial Judge has given cogent and valid reasons for discarding the ocular evidence and I have no reason to disagree with him. Next piece of evidence was production of gun by the appellant and the empty which was alleged to have been recovered from the Wardat and the report of Ballistic Expert. As far as the evidence of recovery of crime empty from the Wardat was concerned, it was not supported by Mashir Muhammad Soomar and co‑Mashir was not examined. As far as the recovery of gun was concerned, although the S.H.O. was able to secure private Mashirs at the time of arrest of the appellant but it was surprising that at the time of production of gun the persons who acted as Mashirs were A.S.I. Adam Khan and H.C. Muhammad Achar, and the S.H.O. had failed to give any explanation for not associating private Mashirs so far the recovery was concerned. Even the investigation appears to be dishonest inasmuch as the S.H.O. had shown the arrest of the appellant on 4‑11‑1984, whereas complainant Muhammad Moosa had stated that the appellant was arrested on the night of incident. Even H.C. Muhammad Achar P.W.8 had admitted in cross‑examination that the accused was already in custody for about 3/4 days prior to the production of gun by him. In view of the above circumstances the learned trial Judge has rightly discarded the evidence of recovery and for valid and cogent reasons. Now coming to the last piece of evidence, i.e judicial confession, it was retracted, and the appellant was admittedly kept in illegal custody for 3/4 days before he was produced for recording confession. In this connection it will be appropriate to refer the evidence of complainant Muhammad Moosa, and H. C. Muhammad Achar. Complainant Muhammad Moosa has deposed in cross‑examination that police came to the Wardat at 8‑00 or 9‑00 in the night. Accused was also arrested on the same night. H . C . Muhammad Achar has deposed in cross‑examination that the accused was already in custody ford about 3/4 days prior to the production of gun by him. This clearly shows that the appellant was arrested on the night of incident, but his arrest was shown to be on 4‑11‑1984, for the reasons best known to the S.H.O. Even the learned Magistrate who‑recorded the confession has failed to give mandatory warnings to the appellant. He has ever, failed to append necessary certificate regarding voluntariness of the confession as envisaged by sections 164(3) and 364, Cr.P.C. In Muharram v. The State 1968 P Cr.L J 1550 it was held by a Divisional Bench of this Court that:‑‑-- "Criminal Procedure Code, S. 164‑‑Confession according to admissions of witnesses the accused actually arrested on 28‑1‑1966 but, for unknown reasons, his arrest not shown in investigation papers until 30‑1‑1966‑‑Confession recorded on 1‑2‑1966 (later retracted in trial Court)‑‑Held, cannot be regarded as voluntary, in circumstances of the case." In Nazo alias Ali Nawaz and 2 others v. The State 1974 P Cr L J 313 it was observed by a Division Bench of this Court that:‑‑

The safeguards provided in section 61, Cr.P.C. have been considered so important that they have been enshrined in the Constitution and included in the Fundamental Rights. Since one of the appellant was in custody of the police from 28‑6‑1969 and was produced for confession on 30‑6‑1969 before Mukhtiarkar and F.C.M. Gambat for judicial confession, and there was no explanation as to why the appellant Nazo was not produced for confession on 29‑6‑1969 the confession was ruled out of consideration." In Ramzan v. The State P L D 1966 (W.P.) Kai _ 242 it was held by this Court that:‑‑ "Criminal Procedure Code, S. 164(3)‑‑Confession‑‑Nothing on record to show that warning contemplated by S. 164(3) had been given to accused‑‑Confessional statement, held, inadmissible though Magistrate recording confession deposed at trial that such warning had been issued." It was further held in the above case that:‑‑ "Retracted confession cannot be used against maker unless corroborated in material particulars. Retracted extra‑judicial confession cannot corroborate retracted judicial confession." In the case State v. Minhun P L D 1964 S C 813 it was observed:‑‑ "As far the confession the High Court, it appears, was duly conscious of the fact that retracted confessions, whether judicial or extra‑judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now well‑settled that as against the maker himself his confession, judicial or extra‑judicial, whether retrated or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law. As observed even by Munir, Chief Justice in his commentary on the Law of Evidence at page 168 (Vol.I), 'it is a settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but the true." The confession was also in conflict with the prosecution case and medical evidence. According to the confession of the appellant he had fired only one shot at the deceased, whereas the evidence of Dr. Abdul Karim shows he had found two fire‑arm injuries on the person of the deceased. He had further admitted in cross‑examination that the injuries on the person of deceased could be the result of two shots. The confession does not show that the witnesses named in the F.I.R. were present at the time of incident. In view of the above discussion and the legal position I am of the considered view that the confession was neither true nor voluntary and the learned trial Judge had erred in convicting the appellant on the basis of the above confession. I, therefore, allow the above appeal, set aside the confession and sentence of the appellant and he is acquitted. He shall be released forthwith if not required in any other case. M.Y.H./A‑240/K Appeal allowed.