P L D 1961 (W (PLP)

ABDUL Aziz KHAN, J.‑Muhammad Ramzan and Khushi Muhammad were jointly tried by Mirza Bashir Ahmad, Additional Sessions Judge, Muzaffargarh. The allegation against Muhammad Ramzan was that on a night during the second week of the month of Ramzan, 1959, he, along with his brother Ismail approver, had murdered Imam Din, aged 17/18 years, in Basti Ghalwan, and had thus committed an offence under section 302 P. P. C. Khushi Muhammad was tried under section 302/109 .P. P. C., the allegation against him being that "on or about" the first week of the month of Ramazan, 1959, he had instigated Muhammad Ramzan and his brother Ismail approver to murder Imam Din, and had thus committed an offence under section 302/ 109, P. P. C. By his order dated the 15th of April 1960, the learned Additional Sessions Judge acquitted Khushi Muhammad but convicted Muhammad Ramzan under section 302, P. P. C. and sentenced him to death. The condemned person has appealed to this Court against his conviction and sentence through the jail authorities. The case is also before us under section 374, Cr. P. C. This judgment will dispose of the appeal as well as the reference for confirmation of the death sentence.

2. Imam Din deceased hailed from a village in Patiala State. His father died before the partition of the country, and on Partition, Imam Din's mother Mst. Sharifan migrated to Pakistan along with her son the deceased and her daughter, and settled in village Mankabhutta in Muzaffargarh District. The appellant's sister died some time after Partition. While she was living in village Mankabhutta, Mst. Sharifan married Khushi Muhammad who has been acquitted. Imam Din deceased had been allotted 50/60 bighas of land and a garden at Chah Kewalwala. Khushi Muhammad, who had no land of his own, used to manage Imam Din deceased's land and garden. Some time before the occurrence under consideration, Imam Din deceased asserted his right to manage his own property and took steps to realise the income of his land and the garden personally. This is evident from the evidence of Ghulam Qadir (P. W. 17), Muhammad Shafi (P. W. 18), Ghulam Rasul (P. W. 19) and Muhammad Rafiq (P. W. 20).

3. According to the prosecution, Khushi Muhammad felt aggrieved at Imam Din's attempt to manage the property himself and thus deprive him (Khushi Muhammad) altogether of the income of his land and garden which was being exploited by Khushi Muhammad up till now. He, therefore, instigatedMuhammad Ramzan and his brother Ismail approver to murder Imam Din and offered a reward of Rs. 400 and 20 bighar of land to Muhammad Ramzan for the evil deed. Muhammad Ramzan agreed and sought the assistance of his brother Ismail approver. The two brothers then murdered Imam Din while he lay asleep in their house at Basti Ghalwan.

4. Abdul Hamid (P. W. 27) is a maternal‑uncle of Imam Din deceased. He used to live in village Badoki Sani, District Lahore, at the material time. Some time after the month of Ramazan in 1959, he received a letter from Khushi Muhammad stating that Imam Din had disappeared. On receiving this letter, Abdul Hamid contacted Khushi Muhammad who told him that he had heard that Imam Din was employed by the Sui Gas Company at Rahimyar Khan. Abdul Hamid P. W. went to Rahimyar Khan and searched for Imam Din. He met Karim Bakhsh Barber (P. W. 24) who told him that on the 6th or 7th of Ramazan the appellant Muhammad Ramzan and Imam Din deceased had come to his shop for a shave and that after he had saved them, he asked for a loan of Rs. 5 from Imam Din who took out a hundred rupee currency note and told the witness to keep Rs. 5 for himself. Latif (P. W. 15) also met Abdul Hamid P. W. and told him that he had seen Muhammad Ramzan and Imam Din and Ismail approver together at Chah Behuwala, Dakhli Munkabhutta, on the 8th of Ramazan. This led Abdul Hamid P. W. to suspect that Imam Din had been murdered.

5. On the 4th of August 1959, Abdul Hamid P. W. sent application Exh. P. A. to the Superintendent of Police, Muzaffargarh, who forwarded it to the S. H. O., Kinjar for necessary action. Sub‑Inspector Abdul Ghafur (P. W. 29) received the application Exh. P. A. on the 12th of August 1959. The Sub‑Inspector recorded the first information report Exh. P. B. at the instance of Abdul Hamid P. W. on the 5th of September 1959. Muhammad Ramzan and Ismail were made to join the investigation as suspects. Muhammad Ramzan was formally arrested on the 26th of October 1959, at Basti Ghalwan and Ismail was arrested on the 28th of October 1959. As a result of interrogation, Muhammad Ramzan appellant led the Sub- Inspector and others to a khola forty karama, away from his house, and pointed out a place. On digging up the place, the Sub Inspector recovered a skeleton of bones which he sealed into a parcel vide memo. Exh. P. D. Ismail approver led the Sub- Inspector and others to a room in his house from where he produced matoori Exh. P. 5 containing chadar Exh. P. 1, shirt Exh. P. 2, muffler Exh. P. 3 and shoes Exh. P. 4, which, according to the prosecution, Imam Din deceased was wearing at the time of his death. The Sub‑Inspector took these articles into possession vide memo. Exh. P. C.

6. Ismail approver was produced before Mr. Muhammad Ashraf, Magistrate (P. W. 6) on the 29th of October 1959, for the recording of a confessional statement. The Magistrate remanded Ismail to judicial custody and ordered his production before him on the following day. Accordingly, Ismail was produced before Mr. Ashraf on the 30th of October 1959, and his statement Exh. P. K. 2 was recorded.

7. On the 30th of October 1959, Muhammad Ramzan appellant was produced before Captain M. A. Majid, section 30 Magistrate (P. W. 7), who remanded him to judicial lock‑up in order to enable him to consider the desirability of making a confessional statement. On the 31st of October 1949, Muhammad Ramzan appellant was again produced before Captain Majid who recorded his confessional statement Exh. P. Z/1. Before recording the confessional statement Captain Majid put the usual question to Muhammad Ramzan appellant to satisfy himself that he was making the statement voluntarily. The last question put by Captain Majid was :‑ KYA TUM KO POLICE NAY KAHA HAY KAY TUM KO WADA-MUAF GAWAH BANAYA JAWAY The appellant answered it in the affirmative. Captain Majid then recorded Muhammad Ramzan's confessional statement Exh. P.Z/1 and then appended the certificate Exh. P. 2/3.

8. The bones recovered were sent to Dr. Abdur Rashid, Assistant Professor of Anatomy, K. E. Medical College, Lahore, P. W. 30, on the 3rd of November 1959, for examination. Doctor Abdur Rashid could not give any opinion as to the cause of death. Nor could he give any opinion whether the bones examined by him belonged to one and the same person.

9. At the trial, Muhammad Ramzan appellant pleaded not guilty and resiled from his confessional statement. While answering question No. 10, he stated "I made this statement Exh. P. Z/1, before the Additional District Magistrate in consequence of torture administered to me by the police during that period of three or four months and the police further said that f would be made au approver and would thus be able to evade punishment."

10. Ismail approver did not support the prosecution case. Thus, the only evidence left against Muhammad Ramzan appellant was his own retracted confession and the recovery of a skeleton from a khola at his instance. Relying on these two pieces of evidence, the learned Additional Sessions Judge convicted him. The learned Additional Sessions Judge held the confessional statement admissible in evidence for reasons which would appear from the following passage in his judgment "It is clear from the testimony of Captain M. A. Majid, A. D. M., P. W. 7, that he took all precautions to ensure that Ramzan accused was going to make the confession voluntarily before his confessional statement Exh. P. Z/1 was recorded by him on 31‑10‑

59. The A. D. M. did not record his confession on 30‑10‑59 when he was produced in his Court for the pur pose and instead sent him to the judicial lock‑up so that he might ponder over his willingness to make the confession or not. He was then brought in his Court room on 31‑10‑1959, from the judicial lock‑up under the escort of the police attached to the judicial lock‑up and was given one hour by him to compose himself before the confessional statement Exh. P. Z/1 was actually recorded. As mentioned in the record of proceedings Exh. P. Z. pertaining to the questions put to him by the A. D. M. and the answers given by him before recording the confessional statement Ramzan stated in answer to the last question put to him that the police had promised that he would be tendered pardon as an approver. This shows that Ramzan was at that time harbouring under the impression that he would be tendered pardon as an approver and would thus be able to evade punishment. There was initially induce ment for making the confession in so far as Ramzan accused's approach to the situation was concerned but the investigating officer Abdul Ghafur, S. L, P. W. 29, has stated that he never gave out to him or Ismail approver that any one of them would be made an approver. It is further true Ramzan accused and his brother Ismail approver had remained associated with the investigation of this case since a month or two months before this confessional statement and that as such there was a possi bility of a race between him and his brother Ismail for evading penalty under the law by becoming on approver, but the fact that Ramzan accused was sent by the A. D. M., P. W. 7, to the judicial lock‑up when he was produced before him in his Court on 30‑10‑59, and that one hour was given to him even on 31‑10‑59, when he was brought to his Curt from the judicial lock‑up would show that the confessional statement Exh. P. Z./1 was made by him voluntarily, notwithstanding the idea in his mind that he would thereby be enabled to become an approver and would thus evade the penalty under the law." Section 24 of the Evidence Act provides that a confession of an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement, having reference to the charge against the accused person, proceeding from a parson in authority. It is impossible to lay down a hard and fast rule as to the sufficiency of the circumstances which would make the confession irrelevant under the provisions of section

24. A study of reported cases on the subject, which are too numerous to mention, would show that anything from a bare suspicion on one hand an absolute cer tainty on the other have been held to be sufficient to satisfy the requirements of section 24.

11. Briefly the reported cases lay down the following principle. The question which a Court has to decide while) determining the admissibility of a confession is whether it is voluntary or appears to the Court to have been induced by any one of the means mentioned in section 24 of the Evidence Act. A confession to be admissible in evidence must be proved to have been made voluntarily. Voluntariness is the condition precedent for admitting a confession into evidence. The onus of proving that the confession is the result of inducement, threat or promise is in the first instance on the prisoner. The use of the words "i it appears" in section 24 indicates a lesser degree of probability than would be necessary if "proof" had been required. The Court has to hold that the making of the confession appears to have been caused by any inducement, threat or promise upon the evidence before it. The inference may be suggested by the confession itself or by evidence adduced by the accused or by the surrounding circumstances which the Court is always bound to take into consideration but the conclusion cannot be based on surmise or conjecture. Whether or not a confession is admissible in evidence is a matter which is to be decided after a full consideration of the evidence and the particular circumstances of the case. Budhoo v. Emperor (A I R 1928 Lah. 676) supports this view. If in the] circumstances of a case it appears to the Court that the confession was the result of an inducement, threat or promise, the prosecution, to make the confession admissible in evidence against the accused, must show that it was freely made. Ashotosh Dutt v. Emperor (68 I C 413).

12. We now proceed to consider Muhammad Ramzan's retracted confession in the light of what has been stated above. It is in evidence that Muhammad Ramzan accused and his brother Ismail approver had remained associated with the investigation as suspects for a month or so before the confession was made. A perusal of the question put to Muhammad Ramzan appellant by the Magistrate and the answer given by him would show that the police had promised to make him an approver. What is the effect of such a promise made in the circumstances of the case. We have no hesitation in saying that the confession was in fact the result of the promise of being made an approver and is, therefore, inadmissible within the meaning of section 24 of the E Evidence Act.

13. In Dinanath Sundraji Ravte v. Emperor (60 I C 1006), the accused whose confession was being recorded told the Magistrate that he was making the confession under inducement. Sir Norman Macleod, C. J. and Shah, J. observed that it was useless to record such a confession and if recorded is inadmissible in evidence and ought not to be allowed to go to the jury.

14. In Khetal v. Emperor (A I R 1923 All. 352), Walsh, J. considered the effect of a promise held by a Police Officer to an accused that he would be made an approver. The learned Judge held that such a promise rendered the confession inadmissible. It would be advantageous to reproduce the head note in the case :‑‑ "At the end of his confession accused said that he had been told by the darogha that he would be made an approver. He explained to the Magistrate in the most convincing fashion that he was telling the truth for this reason, and that he knew that what he said might procure his conviction or his release. The Magistrate wrote the usual certificate in an unusual form. He said : `I believe the above statement was voluntarily made although it is quite possible that the Police Officers may have told him that he will be made an approver.' It seems incredible that this confession should have been admitted in the face of this. Section 24 of the Evidence Act makes a confession inadmissible if it appears to have been caused by any induce ment or promise." This question was also considered by a Division Bench of the Allahabad High Court in Tara and others v. King‑Emperor (A I R 1924 All, 72). The facts of the case were that the accused was told by a person in authority that if he made a voluntary confession which if considered to be full and true then his prayer for being made an approver would receive due consideration. The confession made under such circumstances was held to be inadmissible in evidence.

15. Once the existence of improper inducement is established so as to bring the case within the purview of section 24 of the Evidence Act, there is a presumption of the continuance of such inducement, promise or threat and it is the duty of the prosecu tion to satisfy the Court that the impression caused by the original inducement had been fully removed. See Nazir v. State (P L D 1960 Lah. 189). There is no material on the record to show that the impression had been removed from the mind of Muhammad Ramzan appellant at the time of his making the statement. We, therefore, rule it out of consideration.

16. We now proceed to consider the value of the skeleton recovered at the instance of the appellant. There is no evidence on the record to show that the skeleton recovered was in fact that of Imam Din deceased. Doctor Abdur Rashid, P. W., stated that the bones examined by him could not be declared to be of the same person. On the basis of Muhammad Ramzan appel lant's confessional statement, the learned Additional Sessions Judge held that the skeleton recovered were the bones of Imam Din's dead body as would appear from the following passage occurring in his judgment :‑ "It is true that Dr. Abdur Rashid who examined the skeleton was not able to give any opinion whether the bones belonged to one and the same person and also as to the cause of death and the approximate time since when the death had occurred and that he has further stated that no bone was found cut or fractured but he has definitely expressed the opinion that the bones were of a male human being aged 16 to 20 years notwithstanding the observation by him that the jaws did not have wisdom teeth and for that matter the wisdom teeth had not erupted. Imam Din was 18 or 20 years old as stated by Muhammad Monir (P. W. 21). Even according to Muhammad Shafi (P. W. 18), the age of Imam Din was more than 18 years, otherwise he would not have paid Rs. 100 to him and would not have got the writing Exh. P. U. executed by him. Of course the medical evidence of Dr. Abdur Rashid does not fix the identity of the skeleton with that of Imam Din deceased when this doctor states that the bones examined by him could not be declared to be of the same person, but I have no hesita tion in holding on the basis of Ramzan accused's con fessional statement Exh. P. Z/1 coupled with the recovery of the skeleton at his instance as that of Imam Din that Imam Din was actually murdered." We have already held that Muhammad Ramzan's confessional statement is inadmissible. If it is ruled out of consideration, there is no satisfactory evidence on the record to show that the bones recovered were those of Imam Din deceased. While referring to the medical evidence we have said that the doctor was unable to give the cause of death. Strangely enough the learned Additional Sessions Judge has convicted Muhammad Ramzan appellant under section 302 P. P. C., in spite of the cause of death not having been established. If we had been satisfied that Imam Din had been murdered and that the skeleton was that of Imam Din, we might have considered the question of convicting the appellant under section 201 P. P. C. There being no evidence of murder, be cannot be convicted even under section 201 of the Pakistan Penal Code.

16. For the reasons given above, we accept the appeal, set aside the conviction and sentence of the appellant, decline to confirm the sentence of death, and acquit him. He shall be released forthwith if not required to be detained in connection with any other case. A. H. Appeal accepted.