P L D 1952 Azad J (PLP)

NIAZ AHMAD, J.‑This is an appeal by Muhammad Khan from the order of the Sessions Judge, Poonch, convicting him of the murder of one Sattar Din on 22nd February 1949, and sentencing him to imprisonment for life. We have already passed orders accepting the appeal, acquitting Muhammad Khan and directing his release and we now proceed to record our reasons. The following brief outline may be given of the facts of the case :‑ The deceased Sattar Din was a collie employed in Rankot Brigade and his duty was to collect fuel for the soldiers. He lived in his kotha situate near the Brigade Headquarters and close by, another kotha belonging to one of his relatives was occupied by one c7amadar Muhammad Hussain Khan. The Jamadar contracted intimacy with Sattar Din's wife, Mst. Bina It is alleged that the Jamadar in his anxiety to secure Mst. Bina conceived a plan of getting rid of Sattar Din. He conse quently persuaded Sattar Din to accompany the appellant to a deserted house where he was told that five thans of cloth had been buried and which he would have to dig. It was settled that the clothers so recovered would be shared equally between the Jamadar and the deceased. The deceased accompanied by a sepoy went to the place suggested by the Jamadar and was busy in removing some branches of trees and stones from the place, when the sepoy fired on him twice with his rifle. He was wounded in both the right and the left shoulders. Two Gujjar boys happened to pass that way and then they saw Sattar Din in a serious condition, they sent information to his relatives who arrived soon after and Sattar Din was taken to the Brigade Hospital near by. He was also produced before the Commanding Officer of the Regiment who recorded his statement and had both Jamadar Muhammad Hussain Khan and the appellant arrested. The deceased's father had lodged a report ‑at the police station Bagh. The Jamadar and the appellant were also sent to the police station. Sattar Din was also removed to the hospital at Bagh where his condition became serious and his dying declaration was recorded by the Sub‑Divisional Magistrate, Bagh on 23rd February 1949. On 2nd March 1949 Sattar Din died in the hospital. The appellant was also produced on 1st March 1949 before the Sub‑Divisional Magistrate who recorded his confession. The appellant and Jamadar Muhammad Hussain Khan were both challaned by the police under section 302, A. P. C., for the murder of Sattar Din. The appellant ab sconded during the trial and Jamadar Muhammad Hussain Khan was convicted by the Sessions Judge, Poonch, under section 302/ 109, A. P. C., and sentenced to death. The Jamadar appealed to the High Court and his appeal was accepted and he was acquitted. Muhammad Khan accused appellant was subsequently arrested. He was tried by the Sessions Judge of Poonch and though he retracted his con fession, he was convicted for an offence under section 302, A. P. C. for the murder of Sattar Din and sentenced to imprisonment for life. The principal evidence on which the conviction of the appellant rests is the dying declaration of the deceased. Besides this we have the retracted confession of the appellant and the testimony of two boys Kala and Jalal Din who saw the appellant armed with a rifle following the deceased immediately after rifle shots were fired. Sh. Abdul Hamid counsel for the accused contends that there is no other evidence against his client except the retracted confession and that this confession lacks the essential condition of being corroborated by independent evidence, that it contains improbabilities ‑ and that it was made under pressure. We shall deal first with the dying declaration of the deceased. It appears from the record that the deceased was examined first of all by Lt. Anwar and Major Noor Hussain on 22nd February 1949. Exhibit p. 5 is the statement of Sattar Din recorded by these officers. It appears from this statement that Sattar Din did not know the. name of his assailant on 22nd February 1949. He refers to him as a sepoy. He also deposes how deception was practised on him by Jamadar Muhammad Hussain Khan who deputed the sepoy to accompany the deceased to the place where he was shot at. He asserted that he can identify his assailant. It is a pity that no identification parade was held and the appellant was not shown to the deceased. The accused was arrested by the Military on 22nd February 1949 and was handed over to the police on the 26th. He was remanded to the police custody for ten days on the 27th of February and his confession was recorded on 1st March 1949. The deceased died on 2nd March 1949. The appellant could be shown to him on any day between 26th February, 1949 and 2nd March 1949. It is clearly mentioned in the First Information Report Exhibit P. 1 that the statement of the wounded person was recorded by Lt. Anwar and Major Noor Hussain. It is clear from a perusal of Exhibit P. 5 that the deceased did not know the name of the sepoy on the 22nd of February and it was after the appel lant's arrest that the deceased came to know his name. In his dying declaration Sattar Din states that he did not know the sepoy previously and that it was the sepoy himself who gave his name is Muhammad Khan. The addition of sepoy's name in the dying declaration decidely an improvement upon his first statement and we have no hesitation in holding that the was not shown to the deceased for identification and no identification proceedings were taken and no description of the assailant had been given by the deceased, we have to ignore the dying declaration of the deceased in so far as the identification of the assailant is concerned. The next item of evidence is the confession of the appel lant. We have considered the circumstances in which the Confessional statement was recorded and after giving full consideration to the points raised by the appellant's counsel we have come to conclusion that the confession is neither voluntary nor true. The accused was arrested by the military on 22nd February 1949. He was handed over to the police on 26th February 1949. He remained in police custody till the time, he was produced. before the Sub‑Divisional Magistrate and as there is no judicial lock up in Bagh, the appellant was given back to the police after his statement was recorded and he was kept in the thana lock‑up. No attempt was made by the Magistrate who recorded his confession to ascertain as to when and where the accused was first placed under the police control or arrest. No question was put to him as to when the accused was arrested and the period during which he had remained in the custody of police. The accused was not assured that he would not be handed over to the police and as a matter of fact he was handed back to the same Investigation Officer who was sitting outside the Court‑room and the accused was kept by him in the thana. Under the circumstances, we do not consider that the confession was voluntary. It was retracted at the earliest opportunity when the accused was produced before the Court. He explained that the confession was obtained through pressure and that he received a grievous injury at the hands of the police which resulted in one of his teeth coming out. It appears from the record that the tooth was shown to the Sessions Judge and on allegation of torture by the police was made by the accused but the Sessions judge took no notice of the same. The Advocate‑General argues that as the Magistrate has observed all the formalities required for recording the confes sion of the accused, his opinion that the confession was voluntary should carry weight. We have explained the circumstances in which the confession was recorded and we think that the requirements for ascertaining the voluntary nature of the confession are not satisfied by putting a few formal questions and repeating a set formula which the accused can scarcely appreciate. We are not, therefore, inclined to act upon the opinion of the Magistrate that the confession was voluntary. Sh. Abdul Hamid has further argued that the confession is not true. He has pointed out that the confessional statement is inconsistent with the First Information Report, the medical evidence and the dying declaration of the deceased. It would appear from the First Information Report and the dying declaration that the deceased was asked by the Jamadar to accompany a sepoy to a deserted house called Barri where he was told that cloth was buried and which he was asked to take out. Half of the cloth so found was promised to the deceased. There is not a single word in the confessional statement about these facts. Then again in the confessional statement, it is stated that the Jamadar gave two pieces of, cauliflowers to the Gujjar. He also gave him gur and tea leaves weighing about one pound. About four seers of atta was also given to the Gujjar. There is no thing in the First Information Report, the dying declaration or the statement of other witnesses that the deceased carried these things. According to the First Information Report the accused was pursuing the deceased. According to the confes sional statement of the accused the Gujjar fell down on the spot after receiving the first shot. The deceased stated in his dying declaration that he received two shots one on the right shoulder and the other on the left shoulder. This fact is corroborated by the medical report. The confessional statement of the accused, however, is that he fired only one shot. The explanation of the accused as regards his motive for the offence is not satisfactory. He states that the Jamadar ordered him to shoot the deceased and as he was a subordinate, he was bound, as he had taken the oath of service to obey his superior officer and to act as he was ordered to do. It is further stated in the confessional statement that the accused closed his eyes when he fired the shot, as the victim was his own Muslim brother. It is difficult to believe this statement. The confession thus contains improbabilities and is contradicted in several matters by the First Information Report and the medical report and the prosecution evidence. An important test of the truth of the confession is the revelation of facts which up to the time the confession was made, had not been discovered by the police. In this case the confession is very brief and no fresh facts not discovered by the police up to the time the confession was made, were found as the result of the confession. Taking all these circumstances into consideration, we are reluctantly constrained to come to the conclusion that it is not true. Another item of evidence is the statements of Kala and Jalal Din who saw the accused following the deceased after he had been wounded. They state that the deceased told them that 'the assailant was a sepoy named Muhammad Khan, though the sepoy was not visible when he gave this informa tion. We have held above that the deceased did not know the name of the assailant until after the latter had‑been arrest ed. The story that the name of the accused was mentioned to the witnesses by the deceased thus appears to be false. These witnesses did not see the accused firing at the deceased. It was some minutes after the firing when they met the deceased, followed by some sepoy who ran away on seeing them, and they could have not identified him from a distance of 160 yards. We do not attach much weight to this piece of circumstantial evidence. The evidentiary value of. the retracted confession is very little and it is settled law that it is not safe to act on a retract ed confession, unless it is corroborated in material particulars. We do not find any such corroboration in this case. We are, therefore, of opinion that there is no satisfactory evidence to bring home the guilt to the accused. We, therefore, acquit him. ABDUL MAJID, C J ‑I agree. A. H. Appeal accepted.