P L D 1964 (W (PLP)

(3) An entrance wound, 1 " in diameter, at the medial angle of the left cubital fossa, muscle deep. (4) An exit wound, about 2 " in diameter, at the elbow joint of the left side. The lower end of the left humerus and upper ends of the left ulna and radius were fractured into pieces. (5) Slightly channelised wound on the left breast, 2" above the nipple, " in breadth, and 1 " in length. Direction was from the right towards the left, slightly downwards. (6) An entrance wound, about 1" in diameter, 2" above the right iliac chest, posteriorly, muscles deep. (7) An exit wound, about " in diameter, 1" below the left sub‑costal margin, in the mid‑axillary line. (8) An abrasion of about 1' in diameter on the dorsal aspect of the right wrist. On internal examination he found the blood vessels of the right side of the neck, right lung lower part, diaphragm right part, liver left part, and intestines (on five places) injured. Right 4th and 5th intercostal muscles and ribs were damaged and fractured respectively, at the site of injury No.

1. The left lung was injured on many places (middle part), and the diaphragm left side laterally was injured. The right back muscles were injured and bladder (urinary) was also injured. Pelvic colon was injured on four places. The right and left plurae, trachea, food pipe, and the peritoneum were also injured. Death was due to shock and haemorrhage caused by firearm and blunt means. Injuries Nos. 1 to 7 were caused by a firearm and injury No. 8 by a blunt object. A pellet with two cardboards was recovered from the dead body.

4. Hakim Gul was examined by him for his age and in his opinion he was 16/17 years of age. According to the doctor, the injuries were the result of at least four shots.

5. The investigating officer recovered a stone (Exh. P. 5) suspected to be stained with blood, and one clod of earth (Exh. P. 6) from the spot vide memo. Exh. P. D. He also recovered seven cardboard discs Exh. P. 8 and one nose‑pin Exh. P. 9, from the spot which he took into possession vide memo. Exh. P. E. The appellant surrendered in the police station on the 19th of September 1962, when produced by Nur Halim (P. W. 7), Lambardar of the village. The investigating officer recovered a S. B. shotgun (Exh. P. 10), a bandolier containing four live cartridges, two missed cartridges and four empties (Exh. P. 11), which he took into possession, vide memo. Exh. P. J. The appellant was produced before Ghulam Nabi Khan, Magis trate Second Class, specially empowered to record confession under section 164, Cr. P. C., in his Court‑room, on the 20th of September 1962. After due warning and allowing the appellant one hour's time, the said Magistrate started record ing the confessional statement of the appellant. The Magistrate admitted that he did not inform the appellant that after his statement was recorded he would not be sent back to police custody, and that he would be sent to the judicial lock‑up. After having observed the other formalities, the said Magistrate recorded his confession, which reads as follows:‑ "On the day of occurrence after taking morning tea, I went out of the house to village Hujra. At about 8/9 a.m. I came back to my home for taking meal and found that the main door of our home was locked. I climbed the wall and entered the house and took meal with milk and then again climbed the wall and jumped outside. In the afternoon when I again entered my house for taking tea, Mst. Gul Marjana alias Gula the deceased started abusing me in the presence of villagers and told me to go out of the house. The deceased along with her husband and children were living with me in my house and deceased was the sister of my grandmother. I told her that the house belongs to me, and therefore, you should vacate the house. She was bent upon abusing me. I came out of house and again went to Hujra. At about 3‑30 Mst. Gul Marjana deceased along with her daughter, Pir Marjana, went to her field for cutting grass. I was in the possession of the shotgun Exh. P. 1 and the bandolier Exh. P.

2. While sitting in the Hujra at that time. Having seen the deceased along with her daughter going to the fields I also followed them along with the shotgun and bandolier. Mst. Gul Marjana and her daughter were busy cutting grass in the fields, called Sinow. I fired four shots with the shotgun Exh. P. 1 which hit Mst. Gul Marjana the deceased who fell down. I then ran away and passed the night in the hills and next morning I left for Tirah. I remained there for fourteen days and from there I straight came to my village and told Nur Halim Lambardar to accompany me to Police Station. On the very same day I surrendered to police in Police Station Lachi in the presence of Lambardar."

6. Sheikh Abdul Halim (P. W. 6), Chaukidar of the village, had seen the accused running away from the spot with a topak in his hand. He turned out a chigha party but could not trace the appellant.

7. The prosecution produced, besides other witnesses, Mst. Pir Marjana (P. W. 4), daughter of the deceased and Faqir (P. W. 5), as eye‑witnesses of the occurrence. It also produced Ghulam Nabi Khan, Magistrate, to prove the confession and also to prove that it was made voluntarily, and after having observed the necessary formalities required under section 164, Cr. P. C. As mentioned above, this Magistrate had admitted that he had not informed the appellant that he would be sent to the judicial lock‑up, and not to the police custody, after his statement had been recorded, before he started recording his confession.

8. At the trial, Mst. Pir Marjana (P. W. 4) and Faqir Gul (P. W. 5), who were the eye‑witnesses of the occurrence, stated that they could not identify the appellant as being the person who had fired at the deceased at the time of the occurrence as the culprit was having his face muffled, and as such, he was snot identifiable. Curiously enough, the statement of Mst. Pir Marjana (P. W. 4) recorded by the committing Magistrate was not transferred to the sessions file under section 288 of the Criminal Procedure Code, although she was a very important witness, and therefore, what she had stated at the trial was not sufficient to prove that it was the appellant who was responsible for firing the fatal shots and murdering the deceased.

9. The learned Additional Sessions Judge transferred the statement of Faqir Gul (P. W. 5) recorded by the Committing Magistrate under section 288, Cr. P. C. and it was merely, read over at the trial. In his statement at the trial, Faqir Gul stated in the following words‑ "The fourth short was fired from behind the bushes. The assailant, who had his face muffled, then ran away." In his statement which was recorded by the committing Magis trate and which was transferred to the sessions file under section 288, Cr. P. C., he had specifically charged the appellant to be the person who had fired at the deceased. The learned trial Judge had not put this part of his statement recorded by the committing Magistrate to Faqir Gul (P. W. 5) as was required under section 145 of the Evidence Act. Section 145 of the Evidence Act reads as follows:‑ "Cross‑examination as to previous statement in writing:‑ A witness may be cross‑examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." The learned Additional Sessions Judge, therefore, had totally ignored his provision of law, and had merely transferred the statement of this witness recorded by the committing Magistrate A on the sessions file under section 288, Cr. P. C. This statement is not admissible, unless that part of the statement with which this witness was required to be contradicted was put to him.

10. The learned Additional Sessions Judge had also thought that the statements of the two eye‑witnesses, namely, Mst. Pir Marjana (P. W. 4) and Faqir Gul (P. W. 5) were not sufficient for the conviction of the appellant, and termed their evidence as weak one. The learned Additional Sessions Judge had merely convicted the appellant on his confessional statement which he retracted at the trial. When the appellant was questioned if he had made this confession, he stated:- "It was not voluntary confession. I made it under duress." This confession, therefore, was a retracted one. It is now well -settled that when a Magistrate, immediately before he started recording a confession of an accused person under section 164, Cr. P. C. had omitted to inform him that he would not be remanded back to police custody, and that he would be sent to the judicial lock‑up, then the confession might be presumed to have been made under duress. In Mst. Said Begum v. The State (P L D 1958 Lah. 559) the following portion is pertinent to this aspect of the matter:- "As soon as a person is produced before a Magistrate for getting his confession recorded, his handcuffs should be removed and all the police officers shall be turned out of the Court room and he should be informed that he was before a Magis trate and that whether he made any statement or not, he will not be handed back to the police, but will be sent to the judicial lock‑up. He should then be given sufficient time to ponder over the matter. Then he should be warned that he was not bound to make any statement and if he did so, it may be used as evidence against him . . . . . . ." In this case, it was held that if the confession was recorded without apprising the accused person, that he would be sent to the judicial lock‑up, and not remanded to police custody, then the confession would be considered to have been made under duress. Similarly in Wazir and others v. The State (P L D 1960 Kar. 674) it has been found:- "After the recording of confession the accused persons should be sent to judicial custody and they should in fact be informed beforehand that whether they make a confession or not, they shall not be delivered back to police custody. If the confessing accused is sent back to police custody after he has made a confession, such a course seriously vitiates the voluntary nature of the confession." It is, therefore, clear that in this case the Magistrate had no informed the appellant that he would not be sent back to the custody of the police and instead would be sent to the judicial lock‑up, and, therefore, it is extremely doubtful if the confession was voluntary, and was not made under duress. The appellant was 16/17 years of age, and therefore, it was not very difficult for the police to have persuaded him or induced him to make the confession by giving him false promise, or would have subjected him to torture, as a result of which he made the confession. The confession, therefore, is not admissible in law, and the learned Additional Sessions Judge was, in law, not correct in basing the conviction of the appellant on this evidence. It is also now well settled that a retracted confession of an accused person is not C itself sufficient to convict an accused person, unless it is cor roborated by independent evidence. Fazal ur Rehman v. The State (P L D 1960 Pesh. 74) and Dikson Mali and another v. Emperor (A I R 1942 Pat. 90) can be referred to with advantage.

11. If this confession is taken out of consideration, no other legal evidence remains on the record to justify the conviction of the appellant for the offence of murder. In reply to a question as to why he had absconded after the occurrence, the appellant replied in the following words:- "After returning from Karachi I went to Dara Adam Khel in search of livelihood. There I spent about 18 days and then returned to the village. I did not know anything about the occurrence and I did not abscond." It is the prosecution case that the appellant was earning his livelihood in Karachi and there was nothing unusual if he had gone to Dara Adam Khel in search of livelihood after having stayed in his home village for a few days. Even if it is proved that the appellant had absconded after the occurrence, this is not, by itself, sufficient to prove that he was really guilty.

12. The circumstances pointed out by the learned Additional Sessions Judge in paras. 10 of his judgment to serve as corrobora tions of the retracted confession of the appellant by no means can be considered as corroborations in the eye of law. The circumstances suggested by the learned Additional Sessions Judge are such that they were all in the know of the police before he had surrendered. These circumstances, therefore, could be tutored to the appellant before he was persuaded to confess his guilt before the Magistrate. With great respect, we fully agree with the judgment of the Supreme Court referred by the learned Additional Sessions Judge in his judgment, viz. Joygun Bibi v. The State (P L D 1960 S C 313). Similarly, we respectfully agree with the dictum laid down by the Dacca High Court in a case State v. Badshah Khan and Hatam Ali (P L D 1959 Dacca 226). The circumstances of the present case are not such in which the principles laid down in both the above mentioned judgments could legitimately be made applicable. The facts of those cases are therefore, distinguishable, and the principles laid down in those pronouncements are not applicable in the present case.

13. For the aforesaid reasons, we have accepted the appeal of the appellant by our short order dated the 8th of October 1963, acquitted him of the charge under section 302, P. P. C., and set aside his conviction and sentence. The death sentence was not confirmed.

14. There is ample evidence that when the appellant sur rendered to the police he was in possession of an S. B. shotgun and bandolier containing live cartridges, missed cartridges, and empties, for which he had no licences. His conviction under section 19 Arms Act is upheld, but the sentence of two years' rigorous imprisonment is, in our view, excessive, and it is hereby reduced to one for one year's rigorous imprisonment. To this extent the appeal against his conviction and sentence under section 19, Arms Act is also accepted. S. Q./K. B. A. Appeal accepted.