P L D 1959 (W (PLP)

ABDUL HAMID, J.-Kadir Bux was sentenced to death by the Sessions Judge, Khairpur Mirs by his order dated 21st June 1958 for causing the death of Chano. He has preferred an appeal to this Court against his conviction and sentence and the case is also before us for confirmation of the death sentence. The facts on which the conviction rests briefly are that Kadir Bux accused is the brother of one Mst. Jiandi, She is the wife of Wahiddino. Chano was murdered on the night between the 13th and 14th July 1957 and from the postmortem report it appears that he had ten- injuries on his body. Five of them were on the head, one on the chest and four on other parts of the body. All of them appeared to have been inflicted with a heavy stick. Under five of those injuries spleen and lung were injured. Injury on the chest was individually sufficient to cause death, and injuries on the head were collectively enough to end his life. There is no eye-witness to this occurrence. The matter was brought to the notice of the police in this manner : One Minho (P. W. 1) took Kadir Bux accused to the police station on the 14th of July 1957, at 3 p.m., and stated that Kadir Bux came to him and said that he was sitting in his field at about 3 a.m. on the previous night because it was his turn to water his land. One Dhani was also with him. Muhammad Khan and Wali Muhammad came and asked Mohbat to go away, and when Mohbat left they said to him that they had seen Chano deceased near the house of Wahiddino and questioned him as to what he was doing at that place at that hour of the night. Upon this Chano ran away. They followed him and caught him at a call's distance, tied his hands, gave him such severe beating that he was unable to walk. Kadir Bux said that on hearing this he went with Muhammad Khan and Wali to that place and found Chano lying tied there. He was still alive but was senseless. He then took lathi from Wali's hand and struck Chano with it who then died. As the accused Kadir Bux was present in the police station, where he had been taken by Minho, he was brought under arrest and later on produced before a Magistrate for recording his confession. This confession was recorded on the same day at about 4 p.m. The Magistrate took all precautions laid down by law for recording confessions and assured himself that it was voluntary. He had satisfied himself by asking questions that the confession came out of his free will and there was no sign of any pressure from the police. In this confession the accused stated that he had suspicions that Chano deceased was in illicit intimacy with his sister Mst. Jiandi. On the night of the offence he was in his field watering his lands when two persons Muhammad Khan and Wali came running to him. At that time Mohbat was sitting with him. Wali Muhammad and Muhammad Khan told Mohbat to to go away. They then told him that they had beaten Chano with lathis because he was loitering about the house of Wahiddino. He went along with them to Wahiddino's house and found Chano lying injured there. He was at that time at his last breath. He then said that he struck him with a lathi and thereafter Chano died. He said that he then went to the police station along with Minho to lodge a report. Minho (P. W. 1) in hid evidence before the Court stated that Kadir Bux accused came to him and said that he was in his field on the previous night when Wali Muhammad and Muhammad Khan came to him and said that they had seen Chano near the house of Mst. Jiandi, that they had given him beating with lathis and he was lying there. He accompanied them to that place and saw Chano there, who was still alive, and he gave him a lathi blow after which Chano died. It appears that before Kadir Bux went to Minho (P: W. 1), he went to one Allah Bux (P. W. 5). He said that on the morning of the 14th July, Kadir Bux -came to him and said that on the previous night he, Muhammad Khan and Wali Muhammad found Chano running near their house and they killed him through `Ghairat'. He accompanied him to the scene of offence and saw Chano lying dead there. Allah Bux requested Minho to take Kadir Bux to the police station for report. As Muhammad Khan was found to have had a hand in this affair, he was brought under arrest and. on 15th July 1957 he also made a confession before the Magistrate, which. according to the Magistrate's evidence was .voluntary and displayed no sign of pressure. He said that on the night of occurrence he and Wali Muhammad were going to Darra from their houses when they saw Chano near the house of Wahiddino. They held him there and he, leaving him under the eye of Wali Muhammad, went to Kadir Bux who was in his field. When he came back he found Wali Muhammad and Chano fighting with each other. He caught Chano and Wali gave lathi blows to him. He also said that Chano was in illicit intimacy with Jiandi. When the accused Kadir Bux and Muhammad Khan were before the Magistrate in the committal proceedings, they resiled from their confessions. In the trial before the Sessions Court too they repudiated those confessions and stated that they were innocent of this offence and had no knowledge of it. Wali Muhammad was also tried with them. With regard to the confessions, Kadir Bux said that he made no confession at all, and Muhammad Khan said that he made it under compulsion exercised by the police. With regard to the witnesses he said that they were giving evidence out of enmity. Muhammad Khan and Wali Muhammad were acquitted and Kadir Bux alone was convicted. There are no ocular witnesses to the occurrence. There is in support of the conviction the extra judicial confessions made by Kadir Bux accused before Allah Bux sometime on the morning of the 14th July 1957, and later before Minho sometime in the noon, and the judicial confession made before the Magistrate sometime at 4 p.m. on that day. As he resiled from the judicial confession, it has the weight which law assigns to a retracted confession which is otherwise valid. There is also in its support evidence from other sources. Mohbat was produced in evidence and he said that he was sitting with Kadir Bux accused in his field when Kadir Bux was called. He went away and did not return in his presence. This witness had made a different statement before the lower Court. His statement was also recorded under section 164, Cr. P. C, In those statements he said that the person calling Kadir Bux was Muhammad Khan He also said in those statements that Kadir Bux admitted before him that they had killed Chano. The position in law in relation to a retracted confession is that it can be taken into consideration against its maker provided it is found to be voluntary and free from the taint of coercion, and has been recorded in accordance with the provisions of section 164 of the Code of Criminal Procedure. There is no prohibition in law against basing conviction on retracted confessions if the Judge is of the opinion that the statements made in the confession are true, but prudence warns that a retracted confession should not be made the foundation of conviction unless it stand corroborated by other independent evidence. In this case if we enter into a search for corroborative evidence we find that sufficient corroboration is available from other sources which compels us to believe that the statements made by the accused Kadir Bux in the retracted confession are absolutely true. That corroborative evidence in conjunction with the retracted confession would make the evidence on record strong enough to sustain the conviction of the accused That corroboration exists in different pieces of evidence on record Mst. Jiandi sister of Kadir Bux appeared and stated that Chano was suspected of illicit connection with her. Apart from that, Allah Bux and Minho appeared as witnesses and stated that Kadir Bux admitted before them that he had killed the deceased. He in fact took Allah Bux to the place where Chano was lying dead. Mohbat also appeared and stated that he was with Kadir Bux on that night when he was called away from his field. There is in these pieces of evidence, which lie outside the retracted confession, ample corroboration of the statements made in the confession and lend assurance to the belief that the confession is true. The learned counsel for the accused has drawn our attention to certain discrepancies, which exist, between the retracted confes sion of the accused and the evidence of Allah Bux and Minho and also in the statements of Minho made in the F. I. R. They are the following (1) In the F. I. R. Dhani's presence has been admitted but it is not mentioned in the retracted confession and in Minho's (2) In the F. I. R. it was stated that Kadir Bux had admitted that the deceased had been tied with an angocha, though no angocha was mentioned in the confession. There are undoubtedly some minor discrepancies in those statements but in our view they are of no importance. In our view Dhani's name in the F. I. R. is a mistake for Mohbat. As regards the tying up of the deceased, it appears that he was tried to facilitate beating and it is immaterial if it was mentioned in the confession or not. With regard to the main fact, which is the manner in which the deceased had been killed, the extra judicial confessions made before Allah Bux and Minho are themselves enough to sustain the conviction of the accused if the evidence of these two witnesses be believed to be true. We have no reason to suspect that it is false. If with that evidence is joined the retracted confession of the accused and Mst. Jiandi's evidence in respect of motive for this offence and Mohbat's' statement that he was in the company of Kadir Bux when he was called, we are left in no doubt about the veracity of the retracted confession. We have on the record a retracted confession of Muhammad Khan as well who was a co-accused in this case, but we are excluding it from consideration altogether although the law permits us, in section 30 of the Evidence Act, to take it into consideration. As that confession has also been retracted and stands in need of corroboration from independent sources it is not safe to use it for the purposes of corroborating another retracted confession. Corroboration must emanate from a document which is complete in itself and is not in need of support from any other quarter. In our view the conviction of the accused rests on his retracted confession and on other evidence which is true and reliable and lends corroboration to the confession and renders it worthy or acceptance. The evidence on record is capable of sustaining a conviction and for these reasons we uphold the conviction of the accused under section 302, P. P. Code. This murder has been committed to avenge a wrong and a disgrace for which the deceased himself was responsible. He was in illicit intimacy with the real sister of the accused, On the night of occurrence he was seen loitering about in the vicinity of Jiandi's house presumably with the intention of snatching an opportunity of committing sexual intercourse with her. According to Randi's evidence, he had been previously warned by her husband to keep his hands away from her and he went there in the face of that warning. If he has met with that end, he is the supplant of his own doom. These are circumstances which call for leniency to punishment. For these reasons we are of opinion that they exaction of the extreme penalty of law in such circumstances would be on the side of severity. We uphold his conviction under section 302, P. P. Code but we reduce the sentence to transportation for life. A.H. Order accordingly.