P L D 1961 (W (PLP)

H. T. RAYMOND, S.‑-The Appellant Mst. Masrmn wife of Darhoon was convicted by the Sessions Judge, Nawabshah, of an offence under section 302, h. P. E., and was sentenced to death. Against her conviction and sentence, she preferred an appeal from jail. This matter also came up before us for confirmation of the death sentence under section 374, Cr. P. C. After hearing the Advocates for the parties, we reached the conclusion that this appeal should be allowed and the death sentence set aside. Accordingly an oral order to that effect was announced in open Court, and the reasoned judgment now follows. This judgment will dispose of both the appeal and the reference.

2. The facts of the prosecution case are that one Darhoon son of Photo was a Gang‑Jamadar residing at Gang landhi No. 12 on the Nawabshah Railway line. He had two wives, namely, Mst. Soomri the deceased whom he had‑married some 3 years before her death, and the present appellant, whom he married about 6 months before the incident in question. Both these wives used to reside with him i6 quarter No. 1 of Gang No.

12. There were in all four such quarters; one occupied by Darhoon and his two wives, the other occupied by Siddiq, the third occupied by Abdul Ghani and the fourth was lying vacant. The quarter of Siddiq intervenes between the quarter of Darhoon and that of Abdul Ghani. On the Ist August 1959, at about 5‑30 a. m., Darkoon and Siddiq went to work on the railway line about 2 males away from their houses. Abdul Ghani did not accompany them that day as he was lying ill in his quarter. At abort 9 a. m., that morning, the accused, accompanied by Abdul Ghani, came to the place where Darhoon was working, and the accused, Mst. Mariam, informed Darhoon that his first wife Mst. Soomri, had slaughtered herself with a butcher's knife, and was lying dead, in his quarter. She further said that on seeing this condition of Mst. Soomri, she went and informed their neighbour, Abdul Gahani, and both of them had come together 'to inform Darhoon of this incident. On hearing this tragic news, Darkoon at once returned with the accused and Abdul Ghani to his quarter, and found his first wife, Mst. Soomri lying dead on her cot with her neck cut, much blood beneath the cot, and the butcher's knife, stained with blood, lying on the cot. On seeing this, Darhoon then went to Sakrand Police Station, and reported the matter there. The S. H. O. being away at the time on some other investigation, Darhoon's report was recorded by the Head Constable Allah Obhayo, who repaired at once to scene, prepared a mashirnama of the scene of offence and inquest report, and sent the dead body to the hospital for post‑mortem examination. He also questioned the accused, but she refused to make a statement. He examined Abdul Ghani, Waris, Siddiq and others, and returned to the Police Station on 2‑8‑1959, and handed over the papers to the S. H. O. This S. H. O by name Rahimdad, received these papers on tire 4th August 19.59, and on the 5th August he went to the scene of offence and verified the investiga tion made by Me Jamadar. On the 6th August S. H. O. Rahimdad made further inquiries from certain persons, and on that same date he also received the post‑mortem report from the Medical Officer. This report briefly showed that the deceased had in all seven injuries, of which numbers 1 and 2 were incised wounds on her neck, caused by means of a sharp‑cutting weapon, such as a knife. Injuries 3, 4 and 7, which were one abrasion of the right foot, and two bruises on the right heel and right upper arm, appeared to have been caused by friction against a hard substance. The last two injuries, numbers 5 and 6, which were also bruises on the left leg and right rapper arm, appeared to have been caused by means of a blunt weapon, such as a fist. The post‑mortem report further showed that all these injuries were ante‑mortem and were between 36 to 24 hours old. The cause of the, death was shock and haemorrhage resulting from wounds No. 1 and 2, which were individually and collectively sufficient in the ordinary course of nature to cause death. Strangely enough, this post‑mortem report did not state whether the injuries in question were self‑inflicted or were homicidal, and accordingly on the 6th August. the S. H. O., Sakrand addressed a letter to the Medical Officer, Sakrand, requesting him to state whether injuries 1 and 2, shown in the post‑mortem certificate of the deceased, could be inflicted by the deceased upon herself, or whether the same could be caused with the butcher's knife already shown to the doctor. On 7‑8‑19.19, the doctor replied to the S. H O. stating that injuries 1 and 2 were homicidal, and could have been caused by the alleged weapon. It further appears that upon receipt of this reply from the doctor, the S. H. O. Sakrand made an addition in his own handwriting in the F. I. R. introducing a motive for the accused to have killed the deceased. He also that same day, recorded a fresh F. I. R. in his own name as informed in which he incorporated the contents of the original F. I. R. made by Darhoon on 1‑8‑59, and added a passage con taining the facts that on 6-8‑1959, on receipt of the post‑mortem, certificate, he bad written to the doctor to state whether the injuries were suicidal or homicidal, and the substance of the reply received from the doctor, concluding that Mst. Soomri had been murdered and, therefore, this report is lodged on behalf of the State. That same day, namely, 7th August 1959, the S.H.O. Rahimdad returned to the scene of offence, recorded the further statement of Darhoon and sent for Muhammad Yousaf, the nekmard of the village, and asked him to make inquiries from the accused. It should be mentioned here that this Muhammad Yousaf had already visited the scene of offence on the 1st August 1959, and had served as a mashir of the mashirnama, describing the scene of offence. On the 7th August, on being summoned again to the scene of offence by the police, Muhammad Yousaf, in accordance with the instructions of the S. H. O., took the accused aside to a distance of about 20 or 25 paces, from where the police were visible, made inquiries from her and received from her lips an extra‑judicial confession in which she admitted that she had killed Mst. Soomri because her husband Darhoon loved Mst. Soomri, and both her husband and Mst. Soomri used to quarrel with her. She is reported to have further confessed to Muhammad Yousaf that blood‑stained clothes, which she was wearing at the time of the murder, were concealed by her in their quarter, and she was prepared to produce them. All this information was passed on by Muhammad Yousaf to the S. H. O., whereupon they both accompanied the accused to her quarter, from where she took out a shirt and a headwear or dupatta from an earthen jar. As both these articles appeared to have blood‑stains on them, they were seized by the S. H. O., under a mashirnama dated 7‑8‑1959, with Muhammad Yousaf as mashir. These two articles of clothes were duly sent to the Chemical Analyser, whose report was that the shirt was not stained with blood, whereas the dupatta was so stained. That' same evening, the accused was taken in custody, confined in the police lock‑up, and sent at 9 a.m. on the following morning, that is, 8‑8‑1959, to the Mukhtiarkar‑and F. C. M. Sakrand, for recording her confession, which was duly recorded at 5 p.m. that evening. On 21st August an interim challan was submitted by the S. R. O., and on the 5th September 1959, he sent in the final challan.

3. Mr. Azizullah Shaikh, Barrister‑at‑law, appearing as a pauper Advocate on behalf of the appellant, made two main points in the course of his arguments; His first point was that the confession having been recorded 8 days after the incident, was not a voluntary one, and was not true. His second point was that the confession was retracted, and consequently the rule of prudence required it to be corroborated, whereas in this case there is no corroboration at all. The mere production of the dupatta or headwear, he argued, is no corroboration, particularly having regard to the fact that in the mofussil where people live tender primitive conditions, a dupatta is used by women at the time of their monthly periods. When go used, the article is naturally kept concealed from the eyes of the other inhabitants of the quarter, and that explains why this dupatta was found in an earthen jar. Ire further argued that there was no mention of the size of the blood‑stains on this dupatta, and he invited our attention to a judgment of the Supreme Court of Pakistan in Ibrahim v. The State (Supreme Court Criminal Appeal No. 58 of 1959 (unreported)) in which their Lordships in setting aside the conviction and sentence of death imposed upon the appellant Ibrahim, dealt with the blood‑stained loin‑cloth in that case, and remarked that it was not known what the size of the stains were. Their Lordships further went on to say that:‑ "The observation of the Sessions Judge that he noticed that the Chemical Examiner had cut four portions of this cloth led Wahiduldin, J. to the conclusion `that at four places blood spots were found on it.' But unless the report of the Chemical Examiner states that every such portion disclosed a blood stain, it cannot be said that it was stained with blood, for, portions that appear to be so stained are cut for examination, and it is possible that the analysis may disclose that only one or no portion; is so stained." Finally, on the question of the need for corroboration of a retracted confession, Mr. Azizullah referred us to a case in Rahzan v. The State (P L D 1960 Lah 24) and in particular to the remarks appearing in para. 11 at page

28. The passage in question reads as under: "However, as a rule of caution and prudence now firmly established, Courts have refused to record conviction on a retracted confession alone, and have insisted on independent support of it by corroborative evidence on material particulars connecting the accused with the offence."

4. Mr. Murtaza Hussain appearing on behalf of‑the A. A. G. while accepting the position taken by the learned Sessions Judge in disregarding the extra, judicial confession made to Muhammad Yousaf, argued that it was possible to separate the judicial from the extra‑judicial confession, and that merely because the extra- judicial confession had been held by the Sessions Judge to be inadmissible because of the proximity of the police at the relevant time, it did not follow that the judicial confession recorded the next day should also be ruled out. In answer to this argument of the learned State counsel, it was pointed out to him by us that the extra‑judicial confession and its successor, the judicial confession, were closely linked up together, and formed two parts of one coherent whole. Hence if the first failed, the same result must also affect the second. Besides, the motive for the offence mentioned in these two confessions was from the point of view of time, first introduced by S. H.

4. Rahimdad in the addition that he had made in his own handwriting on the morning of the 7th August 1959, to the F. I. R., recorded on 1‑8‑1959, of Darhoon, referred to above. Hence it would appear that the S. H. O. Sakrand, after the receipt of the letter from the Medical Officer stating, though without giving any reasons; that the injuries were homicidal and not suicidal, decided to resume t$e investigation in this new light, and after having made the necessary addition in his own hand‑writing in the original F. I. R, he then proceeded to the scene of offence, where an extra‑judicial confession was secured at his instance, and this new chapter closed with a judicial confession recorded on the evening of the next day, namely, the 8th August 1959. The, learned counsel appearing on behalf of the State, appeared to be in obvious difficulties in answering these points that were put to him by the Court, and for good reason. Having pondered over the matter ourselves, we feel that there can be no answer to these points.

5. We have duly considered the arguments of the defence counsel and the Advocate appearing on behalf of the State. We are no satisfied that the judicial confession was a voluntary confess Ion. Admittedly it was recorded after 8 days, i.e., on the evening of 8th August 1959, and although we are not prepared to subscribe to the view of the learned defence counsel that the accused was in police custody for all these days, vet it does seem that there has been some delay in the recording of this confession. In a case decided by this Court and reference to in Hamzo v. The State (P L D 1960 Kar. 817) it was held by our brothers, Munshi and M. B. Ahmed, JJ. that the confession had the appearance of having been improperty obtained, because the confessing accused was detained by the police for more than 24 hours without a warrant. In the instant case although there is no question of illegal detention, yet the fact that the confession was recorded 8 days after the incident, and admittedly more than 24 hours after the arrest of the accused makes it difficult for us to rely upon this judicial confession. Besides, the circumstances preceding the recording of this con fession, namely, the letter received on 7‑8‑1959, by the S. H. O. from the doctor, the addition made by the S. H. O. in his own hand‑writing in the original F. I. R. and the handing over of the accused to P. W. Muhammad Yousaf for inquiries on the afternoon of 7‑8‑1959, all go to show that the contents of this confession cannot implicitly, be relied upon. There is the further fact that the confession has been retracted, and the only circumstance to corroborate it is the production of the blood‑stained head‑dress by the accused from an earthen jar in her quarter. This was on 7‑8‑1959, so that it creates a further doubt in our minds as to how the accused would retain this incriminating article with herself for 7 days without either washing it or getting rid of it, in some way or the other. We have, therefore, reached the con clusion that with the ruling out of the judicial confession and the alleged production of the blood‑stained head‑dress, there remains no other piece of evidence against this accused, and for these reasons we conclude that this conviction and sentence cannot be upheld, and in the oral order pronounced in Court after the hearing; declared that the appeal is allowed, the sentence of death is set aside, and the accused, directed to be set at liberty. S. B. Appeal allowed.