P L D 1960 (W (PLP)

SAJJAD AHMAD, J.‑

This murder appeal and the connected murder reference under section 374 of the Code of Criminal Procedure arise from a judgment of Sh. Muhammad Akbar Farooqi, Sessions Judge, Rahimyarkhan, whereby he has convicted the two appellants, Rahzan, aged 30 years, and Sajan, aged 27 years, under section 302 read with section 34 of the Pakistan Penal Code and sentenced each of them to death.

2. The murdered man is Pari Pia, aged about 65 years, who had taken Mst. Sahiban, sister of Sajan appellant in marriage as his second wife, after having paid a sum of Rs. 1,300 to her previous husband for securing her divorce. This was after Mst. Sahiban had been condemned as "siyahkar" caught in adultery with one Murad. It was alleged by the prosecution that at the time when Mst. Sahiban was married to Pari Pia deceased, the latter had promised that he would give his daughter that might be born from Mst. Sahiban in marriage in the family of his in‑laws, but that he went back on his promise after a daughter was born. Rahzan appellant was alleged to have contracted illicit intimacy with Mst. Sahiban and according to the prosecution case he has killed Pari Pia to clear his way for marrying Mst. Sahiban for which Sajan had pledged his assistance to him to avenge his own grievance against Pari Pia for having gone back on his promise regarding the hand of his daughter.

3. Pari Pia had slept in his house on the night of his murder, between the 23rd and 24th of July, 1957. His cousin, Unar (P. W. 10), who was sleeping nearby, got up to smoke huqqa when just one pehr of the night remained and found the bed of Pari Pia empty. He questioned Mst. Sahiban, who was grinding a hand mill at the time, about Pari Pia, and was informed that he had left to irrigate his fields. Unar also saw at the time that a part of the fence of the house on the southern side was removed. He suspected foul‑play and went round looking for Pari Pia, only to find his dead body lying in the deceased's own paddy field, bearing marks of injuries on his forehead and neck, at some distance from the house.

4. Unar went to the Police Station of Sabzal where he made his first information report (Ex. P. A.) at 11‑30 a.m. on the 24th of July, 1957. In this report nobody was named as the culprit and the only clue about the crime furnished was that at the spot there were footprints of a bare‑footed person which joined the hoof marks of a mare at some distance from the spot and that these hoof‑marks ended at the house of one Allah Bakhsh who was annoyed with the deceased on account of some matrimonial promise not fulfilled. It was further stated in the report that Mst. Sahiban, the wife of the deceased, whom he had purchased in marriage for Rs. 1,300 was a young woman of easy virtues, and that Pari Pia had been done to death by one of her paramours in league with her:

5. Muhammad Hanif, the than Station House Officer of Kot Sabzal Police Station, reached the scene of murder at 5‑30 p.m. on the 24th of July, 1957. The dead body of Pari Pia was sent for autopsy and the following injuries were discovered on his person :‑ (1) An incised wound, 6" x 2", on the upper part of the left side of the neck, it was transverse in direction and was bone deep. (2) An incised wound, 2" x 2 '', on the left eye‑ball socket. It was transverse in direction and was bone deep, the left eye‑ball was missing from its socket. (3) An incised wound, 2" x 1'', on the left eyebrow, it was transverse in direction and was bone deep. (4) A bluish swelling, measuring 3" x 2", on the upper lid of the right eye. (5) There was a transverse fracture of the frontal bone, measuring 41" in length in its left lower part, below injuries Nos. 2 and 3. (6) There was a fracture of the orbital plate of the frontal bone and the zygomatic bone of the left side (below the cheek) situated below injury No. 2. (7) There was laceration of brain below injuries Nos. 2 and

3. There was free effusion of blood between the brain and its membrane. The left frontal lobe of the brain was lacerated measuring 3" x 1''. The membranes of the brain were also cut underneath injuries Nos. 2 and 3. (8) The lower cervical vertebras were cut underneath injury No.

1. The spinal card was also lacerated below injury No.

1. The great blood vessels of the neck were also cut underneath injury No. 1.

6. Muhammad Hanif S. H. O. located a mare from the clue of its hoofmarks in the house of Allah Bakhsh above‑mentioned, and its owner was found to be Murad. The S. H. O: arrested Murad in the first instance and the mare was taken into possession as also a shirt worn by Murad found to be blood‑stained, vide memo. Ex. P. C. on record. Murad was however released subsequently, and suspicions were later directed against the present appellants who were taken in custody on the 15th of August 1957.

7. The evidence of the Sub Inspector Muhammad Hank P. W. reveals that he had summoned Sardar Imam Bakhsh Wadera (P. W. 12) on the 11th of August, 1957 and associated him in the investigation. Imam Bakhsh in his evidence owns the fact that the thanedar had asked him to find out the real murderers of Pari Pia and to search for Rahzan and Sajan appellants whom he had failed to secure till then. The basis of the thanedar's suspicion against Sajan and Rahzan seems to be the tale carried to him by Khamisa (P. W. 8) and Allah Diwaya (P. W. 9) of an extra‑judicial confession made to them by appellant Rahzan when they happened to stay in his house, for a night, just by chance, long after Nri Pia's murder. However, the statements of these two witnesses at the trial are so flatly insipid that the learned, counsel appearing for the State has very rightly dropped them out of account.

8. The prosecution has, however, endeavoured to build up its case against the accused‑appellants on the alleged extra judicial confessions of both the appellants stated to have been made by then before P. Ws. Allah Bakhsh and Muhammad Bakhsh, followed by a judicial confession, Ex. P. L. 1, of Sajan appellant recorded on the 16th of August, 1957, by Mr. Muhammad Hassan Sindhar, Magistrate; Sadiqabad (P. W. 13). Two other items of evidence relied on by the prosecution may also be mentioned here, viz., the alleged recovery of a bloodstained hatchet at the instance of Rahzan appellant on the 24th of August, 1957 and the track evidence of Beram Khan (P. W. 5) which have cumulatively found favour with the trial Judge as corroborative evidence for the conviction of the appellants.

9. The judicial confession of Sajan appellant, retracted by him at the trial, forms the mainstay of the prosecution case and it would be convenient to deal with it first of all. Rendered in English it would read as follows:‑-- "Mst. Sahib Khatun is my sister. She was married to Qadar. She picked up an illicit connection with Mannun and was divorced. Paru deceased gave us Rs. 1,300 in cash and promised that the daughter which he would get from my sister would be given to us for marriage in our family. A daughter was born to my sister, but Pari Pia refused to give her hand to us. Rahzan is my friend. He used to visit my house. I did not know that he was having illicit connection with my sister. I came to know about it subsequently. One and a three quarters of a month ago, my sister came over to us and told us that she had been beaten by Pari Pia on account of the dispute over the hand of their daughter. She stayed for two nights and then returned. She had come with my maternal uncle, Murad. She had come for offerings to the Pir. Rahzan said, that "Paru had gone back on his promise of giving" `rishta' and had beaten my sister, let us kill Para. Rahzan kepi on seducing (warghlata raha) me, that he would give me sheep, that we would commit thefts and that I will have the booty. Rahzan was telling me these things when we were alone by ourselves. I went with Rahzan and on his inducement, at midnight we came over to the house of Paru. I had an ordinary stick while Rahzan was carrying a big kulhari. Rahzan told me to sit down and I did so in a field near the house of Unar which contained cotton crop. Rahzan went inside the house pushing his way through thorny bushes and told me "that I had no further concern." A dog barked inside and Rahzan came out and returned to me telling me that he would go again when the dog goes away. Rahzan was sitting slightly ahead of me and he told me that the voice of Paru was coming and he was telling his wife that he was going for water. Rahzan told me that he would go in that direction and that I should come from the side of the garden. Rahzan came to the water course. I was near and Paru came to the watercourse. Paru inquired, who are you? Rahzan replied "I am not a stranger." Rahzan then inquired, `who are you' ? and Paru replied that he was Paru. Paru then started going to his paddy field, but I was at a distance then, in the cover of the garden. These things were related to me by Rahzan later on. When Paru was going, Rahzan gave him kulhari blow on the neck. Paru fell down. Rahzan gave him a second blow on the cheek and the third near the eyebrow. Rahzan came running. Paru did not raise any alarm. Rahzan told me that we should run away. When I came near the water‑course, I saw Murad Chang mounted on a horse and talking to Rahzan. I do not know whether he had come in concert with Rahzan or otherwise. Murad went towards the house of Sabir Kosh and I and Rahzan entered the canal to cause the disappearance of the track, and came out of the canal near the Kunder Bridge and went further. Two persons met us near Daoowala, one of whom, was named by R4hzan as Wazir Chauhan. Rahzan said to me further that he would marry my sister, but I replied that he belonged to a different caste. After this, I left and Rahzan went to his own house. I kept quiet."

10. The learned counsel appearing for the State has emphatically pressed this statement on our attention, claiming that it is a confession, voluntary and true, and sufficient along with the corroborative evidence available in the case to sustain the conviction of both the appellants.

11. The law on the use and evidentiary value of confessional statements is now well‑settled and has been repeatedly affirmed by judicial authorities of great eminence. Recounting it in a brief summary, it may be stated that when a retracted confession is tendered in evidence, the first thing to consider is whether it is admissible, the admissibility depending on whether or not it is hit by any of the tainting factors, of inducement, threat or promise, mentioned in section 24 of the Evidence Act. Even if it appears that any of these influences were at work before the confession was recorded, but in the opinion of the Court at the time when the confession was made, the resultant impression caused by those influences had disappeared from the mind of the accused, section 28 of the Evidence Act would still save the confession as admissible. And once a Court finds that a confession is voluntary, conviction can be based on the same, provided it is true. 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. The need for corrobo rative evidence in material particulars, is much greater against the co‑accused than against the confessing accused himself. In the absence of reliable corroborative evidence, the mere retracted confession of an accused person cannot at all furnish a satisfactory basis for the conviction of his co‑accused.

12. However, in the matter of a confession, the real difficulty arises in determining whether it is voluntary and true. All judicial confessions bear the stamp of the recording Magistrate's approval, who ordinarily fulfils all the legal formalities before getting down to record the confession, but this laborious routine is good enough to prove the voluntaries of the confession to the extent that the accused before recording the confession was given a full opportunity to disabuse his mind of all extraneous influences and that he was put on caution fully well about the seriousness of the situation he was creating for himself. But compliance by the Magistrate with the routine formalities will not furnish a true and a conclusive index to the real working of the mind of an accused person to show that the confession was his volitive act, pure and simple, unaffected by any external circumstance and much less is it a proof of the fact that the confession is true. Therefore, in my view, when the mind of a Judge is engaged in assessing the value of a confession, he has to go much deeper than the record of the confession. The entire set up of the prosecution case and the surrounding circumstances, and most of all the intrinsic value of the confession itself will have to be taken into account to find out if it is voluntary and true.

13. Judicial history presents abundant warning against the danger of placing too much reliance on confessions, more particularly in cases of heinous offences. It is not easy to reconcile oneself with the position that an accused person was seized with penitence and remorse when he made the confession, and that these pious feelings vanish as soon as he appears in Court and resiles from that confession. One basic test of the truthfulness of a confession is the role which the confessing accused attributes to himself in a given crime in relation to the other accused concerned in the crime. To quote the Chief Justice of Pakistan, Mr. Justice Muhammad Munir, at page 205 of his well‑known treatise on the Law of Evidence, "The word confession" as used in the Evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. It is not necessary that a confession should claim for its maker the leading part in the crime, but it must implicate him substantially to the same extent as it does the other accused. To use a popular and well‑understood phrase, "the confessing prisoner must tar himself and the person or persons he implicates with himself with one and the same brush." Statements which inculpate the maker more than or equally with others alone can afford any satisfactory guarantee of their truth. When the maker of a statement entirely exonerates himself, or throws the principal blame on others, the statement is self‑serving according to the ideas of the person making it, and is entirely excluded from consideration. Such self‑serving statements are robbed of all evidentiary value against the other accused and also cast a doubt on its veracity as against the maker himself."

14. Analysing the statement of Sajan accused reproduced above on the tests stated above I am not at all impressed that it is a true statement. Apart from saying that he had accompanied Rahzan under his inducement and promises of being enriched by him with the booty of theft and plunder, he poses himself as a mere spectator of the entire event and then the mention in his statement of Murad appearing on the scene on the mare and talking to Rahzan either as a collaborator in the crime or as a chance wayfarer, reduces this statement to mere bunkum. To my mind it is a self‑serving statement containing indications of an effort to throw the halter round the neck of Rahzan, the co‑accused, under some undetectable influence; showing Sajan off himself more as a witness of the crime than a perpetrator of it.

15. The learned State counsel has next relied on the extra judicial confessions of both the appellants, as deposed to by Mahmud Bakhsh and Sardar Imam Bakhsh, P. Ws. 11 and 12, respectively. As against judicial confessions, extra‑judicial confessions call for a greater caution and care in their acceptance. Where such confessions are oral, Court should not act on them, unless they are proved by evidence of the most unimpeachable character. It is not uncommon that such confessions are often wrong out of villagers by lambardars and other persons in authority by putting the accused person to severe examination during investigation and sometimes by threats and inducements. It is on account of such suspicion that the Courts are reluctant to act upon extra‑judicial confessions even though they may apparently appear to be true. The learned State counsel has strenuously con tended that Sardar Imam Bakhsh (P. W. 12) is a sardar of his tribe who has described himself in his evidence as "ruler of his ilaqa" and there is no apparent reason to distrust him. Ire may be a man of a very high status, but I am not prepared to accept his evidence without reservations. He was associated with this investigation right from the 11th of August at the instance of the police who had commissioned him to search for these two accused persons. As deposed to by Haji Jewan (P. W. 4), Mst. Sahiban, after she was stained with immorality, was made over to this witness in consonance with the custom of handing over such woman to the sardar, although Imam Bakhsh himself denied any such custom. The evidence of the other witness, namely, Mahmud Bakhsh Y. W., does not entirely tally with the statement of P. W. Imam Bakhsh as to the texts of the alleged extra judicial confessions. I am not at all impressed with the prose cution case that without any compelling reason and with no evidence whatsoever connecting them with this crime, the appellants should have gone to these witnesses to own up their crime before them.

16. The next item of evidence relied on in this case is the recovery of a bloodstained hatchet at the instance of Rahzan appellant on the 24th of August 1957. The evidence relating to the recovery of this weapon is not at all satisfactory. The statement of one of the recovery witnesses, Malik Haq Nawaz, puts one in doubt as to the manner in which it was recovered almost a month after the occurrence and a week after the arrest of the accused. This is what he states: "The accused pointed out to one hatchet. We had to make a considerable search for that hatchet and then the hatchet was recovered. The accused had himself eventually picked up the hatchet from the jhhari." The considerable search for the hatchet by the prosecution witnesses, before it was picked up by the accused, speaks for itself.

17. That this hatchet was kept lying in a jhhari one full month and the bloodstains survived the normal monsoon showers on it in the month of July does not induce conviction. The judicial confession, Exh. P. L/1, of Sajan appellant shows that the appellants had after the crime entered a canal to cause the dis appearance of the tracks and it is strange that it did not occur to them to wipe off the stains on the alleged weapon of offence in the same water. The learned counsel for the State wanted to produce the report of the Serologist in this case about the blood on the hatchet, as the report was not traceable at the time of the trial but feeling that it will not at all advance the prosecution case, we have not admitted it into evidence. I consider that the evidence of the recovery of the hatchet is an attempt to create padding evidence, just as it has been done in the matter of track evidence of P. W. Beram Khan, which is the next item of evidence to be considered. In view of the utter unworthiness of the track evidence, in this case the learned counsel for the State has very frankly expressed his inability to rely on it. Track evidence can, be of a very great value, if it comes from an expert who has taken all the necessary precautions in ensuring the preservation and identity of the footprints found on the spot and is sure of his reasons for ascertaining the corresponding footprints of the culprits at the identification parade regularly held. Here in this' case, P. W. Beram Khan does not profess any pretentions to be a tracker and the fact that the footprints at the spot were never preserved nor any moulds taken of them, and the further fact as recorded in the memo. Exh. P. M./2 that this witness had at first made a mistake in identifying the footprints of one accused and could not distinguish the footprints of one accused from that of the other, totally reduces the value of his evidence.

18. As held above, the judicial confession, Exh. P. L./1, of Sajan appellant, which forms the cornerstone of the prose cution case, is devoid of that ring or truth which invests a judicial statement with substance and value. When this is removed, the entire structure of the prosecution case, shaky in itself, tumbles to the ground completely. To my mind, there is no satisfactory basis whatsoever for upholding the convictions of the appellants, and giving them the benefit of doubt, I acquit them. Their death sentences are not confirmed. SHABIR AHMAD, J.‑

I agree. A.H. Appeal accepted.