P L D 1966 (W (PLP)

(2) Depressed fracture of the left parietal bone extending on to the frontal bone left side with a linear fracture of the frontal bone. (3) The meninges were lacerated and the brain matter was lacerated under the injury. In the opinion of the doctor the death 'was' due to shock intra‑cranial haemorrhage, as a result of injury No. 1, which was sufficient in the ordinary course of nature to cause death. The doctor was also of the' opinion that the deceased could have remained conscious only for about 15 to 20 minutes at the most, after receiving injury No. 1.

5. The appellant denied his guilt and declined to produce any defence. As regards confessional statement he stated that he was forced to make it as the police had given him a beating. He also denied having made extra judicial confession before Badruduja (P. W. 3) and Khuda Bakhsh (P. W. 4). Regarding the incident he gave the following version:‑ "On the night myself and Mann brother of deceased Faiz Muhammad were sleeping near the khara as on the previous night theft of rape‑seed had been committed. . On that night complainant Mann and myself woke up on hearing a noise, and Mann informed me that a thief was stealing rape‑seed from the khara. Mann ran ahead of me and dealt lathi blows to the thief and as I reached for his assistance, Mann stopped me from giving further blows, saying that the thief was his own brother."

6. There is no eye‑witness in this case. The prosecution case against the appellant rests on (1) Oral dying declaration made by the deceased before Mann P. W., (2) Extra‑Judicial confession alleged to have been made by the appellant on the 26th of March 1963 at about 8‑30 a.m. before Badruduja (P. W. 3) and Khuda Bakhsh (P. W. 4), and (3) Judicial confession Exh. 36 of Ramzan appellant and Exh. 35 of Musoo, acquitted accused. Oral dying declaration:‑Mann P.W. stated that when he enquired from the deceased, he told him "Immediately after your departure Ramzan and Gulloo came there armed with lathis. They demanded water from me. I refused to allow them to take water whereupon we exchanged hot words. Then Ramzan and Gulloo gave me lathi blows on my head declaring me a thief." According to the medical evidence on the record the deceased could have remained conscious only for about 15 or 20 minutes after receiving injury No.

1. It was a contused wound, 3 " x ", deep to the bone on the left fronto‑parietal region. In view of the above the deceased could not have been in his senses, in order to make oral dying declaration as alleged by Mann P. W. Thus no reliance can be placed on his testimony.

7. Extra‑Judicial confession before Badruduja and Khuda Bakhsh P. Ws.‑Badruduja P. W. stated that on the 26th of March 1962, at about 10 or 10‑30 a.m., when he was sitting at the shop of Mistri Abdul Shakoor, Khuda Bakhsh, father of Ramzan appellant, told him that he had learned from Ramzan appellant that while they (Ramzan and Mursoo) were sleeping at the khara, they heard a noise of someone beating the turia with a lathi, in order to remove the rape‑seed, that they both ran there and beat up that man with lathis, and that when they brought him to the street near the house of Pir Rasul Bakhsh, they found that the thief was Faiz Muhammad deceased. This witness further stated that when he confronted Ramzan appellant that instead of beating Faiz Muhammad, he should have complained to him about the theft, Ramzan replied that he had committed a mistake and was sorry for it. Khuda Bakhsh (P. W. 4) stated that Ramzan appellant informed him that Faiz Muhammad deceased had come to commit theft of turia in their khara during the night but was caught and brought there. This talk took place when Badruduja P. W. was also present. He nowhere stated that Ramzan appellant had informed him that they had also given a beating to the deceased. His evidence is, therefore, contrary to the evidence of Badruduja P. W.

8. Confessional statement Exh. 35 of Musoo, acquitted accused and Exh. 36 of Ramzan appellant:‑The confessional state ment of Musoo acquitted accused reads as follows:‑ "I am cultivating lands of Muhammad Omar and Muhammad Hashim refugees. The said land is situated at a distance of three "Athas" from my village. Accused Ramzan Sahtio resides at a distance of four acres from me. He is a hari of Badar Muhajir and his land is situated at three "Athas" away from that of mine. Accused Ramzan has raised rape seed crop in his land in Rabi season of the current year. He has kept a `Khara' at his land. Three days before, Ramzan came to me in the evening, at my village. His relatives' had gone to visit Pir of Pagaro. He told me that the rape‑seed was being stolen from his `Khara' during the night and that being his friend, I should sleep at his `Khara' during the night. Both of us went and slept at the `K$ara' of Ramzan. We kept lathis with us. We slept then or (illegible) paces away from the `Khara'. At mid‑night I was awakened by Ramzan, who told me that a thief had come at his `Khara' and was beating the rape‑seed. I also saw a thief busy in beating the rape‑seed. Both of us picked up our lathis and ran in that direction. The thief had put some of the rape‑seed in his gunny bag and was putting the other in it, when,we reached there. Seeing us, he tried to run away but myself and Ramzan gave him lathi blows. Ramzan gave him two lathi blows and so did I, ‑as a result of which he collapsed and said. `Don't beat me. I am Faizu.' We identified him to be Faizu Wagan of Deh Shah Ali. He entreated that as he had committed an offence we should forgive him. But we told him that he would not be forgiven and would be produced before the Wadero. Then I and Ramzan produced him before Wadero Khuda Bakhsh, who apprised Khuda Bakhsh, father of Ramzan appellant, about the incident. Faizu requested Wadero Khuda Bakhsh also, for pardon, but the Wadero refused his appeal and told him that he was a thief and would not be pardoned. Then myself, Wadero Khuda Bakhsh and Ramzan produced accused Faizu along with his wooden stick, with which he was beating rape seed, before Pir Rasul Bakhsh at Shahdadpur. From there I went back to my village." Confessional statement of Ramzan appellant Exh. 36 reads as follows:‑-- "Accused Musoo Dero is a friend. of mine, and his village is at a distance of three or four acres from that of ours. I cultivate the land of Badar Mahajir, which is at a distance of about one mile from my village. This year I had raised rape‑seed crop in my land in Rabi season. I had constructed a `Khara' in the same land. Theft used to occur from my 'Khara' of rape‑seed during night time. Three days before, at morning time, my relations had gone to visit Pir Pagaro. On the . same day, at evening time I asked Musoo that he should go and sleep with me at my `Khara' that night to find out thieves, as the rape‑seed was being stolen from there. Musoo agreed and at night time, we went and slept at a distance of 15 paces away from the `Khara', armed with lathis. At midnight I woke upon hearing some sound and saw that a man was beating the rape‑seed. I awakened Musoo and both of us ran towards the `Khara', armed with lathis. Seeing us approaching, the thief tried to run away but we reached him. We saw that he had put some rape‑seed into a gunny bag, and was beating the other. Myself and Musoo gave him lathi blows, as a result of which he fell down. He said, `Don't beat me. I am Faizu.' We then identified him to be Faizu Wagan resident of Deh Shahu Ali. He requested us that we should forgive him. But we told him that he was a thief and that he would be produced before Wadero Khuda Bakhsh, my father. Then I and Musoo took him with the rape‑seed, and the wooden stick, with which he had beaten the rape‑seed to Wadero Khuda Bakhsh. He entreated him also to forgive him. We narrated the whole story to him. My father told him that he would not be forgiven and that a report would be filed against him. Then myself, my father, Khuda Bakhsh, and Musoo brought Faizu along with the rape‑seed and Sonke (wooden stick) to Rasul Bakhsh at Shahdadpur. From there Musoo went back to his village. Myself and my father narrated the whole story to Pir Rasul Bakhsh, who advised us to make a report to the police. But Faizu requested the Pir and my father that they should call for his brother. Then my father, leaving me and Faizu outside the Otak of Pir Rasul Bakhsh, went to the town to search for a man for deputing him to call the brother of Faizu. After two or three hours my father Khuda Bakhsh, my Zamindar Badar Muhajir, Khuda Bakhsh Khashkheli and Mann Wagan, the brother of Faizu, came there. I told them the entire incident. They found Faizu lying unconscious. Badar and Khuda Bakhsh Khasqali refused to sign the compromise deed because of the serious condition of Faizu. Then we brought Faizu to Doctor Abbasi in a Tonga, but he refused to give him medical treatment and said that we should report the matter to the police. Then both of them went and reported the matter to the police, at thana Shahdadpur." Mr. Ghulam Nabi, Resident Magistrate (P. W. 9) who recorded these statements did not comply with the mandatory provisions, as laid down under section 164 (3) of the Code of Criminal Pro cedure, which reads as follows:‑ "A Magistrate shall, before recording any such confession explain to the person making it that he is not bound to make a confession and that if he does so it may be used ' as evidence against him and no. Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect:‑ "I have explained to (name that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him." The Magistrate, however, in his statement in the trial Court did state that he had warned the appellant and Musoo co‑accused that he was a First Class Magistrate, and that they were not bound to make a confession and if they did so, it would be used as evidence against them. From the record it is not clear if the Magistrate; did give such a warning. In view of the above the above confessional statements are inadmissible in evidence. The same view was held in case Mst. Bakhat Bano v. The Crown (P L D 1950 Lah. 68). In any case even if the Magistrate had not made the above mistake, retracted confession cannot legally be taken into consideration against the makers of those confessions unless they are corrobo rated in material particulars by some other evidence on the record. In the present case there is no other evidence on the record except the extra judicial confession alleged to have been made by the appellant before Budruduja and Khuda Bakhsh P. Ws. In case State v. Minhun (P L D 1964 S C 813), it was observed: "As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confessions, whether judicial or extra judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now well settled that as against the maker himself his confession, Judicial or extra judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to whether in the facts and circum stances of a given case the Court should act upon such a con fessions alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law. As observed even by Munir, Chief Justice in his commentary on the law of Evidence at page 168 (Vol, I), `it is a settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquiry into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but the true." The proposition that a retracted extra‑judicial confession cannot corroborate a retracted judicial confession cannot also be assailed where corroboration is found necessary, for, that would amount to utilizing of one piece of tainted evidence to corroborate another piece of tainted evidence." In the result I find that no case at all has been made out against the appellant.

9. I, accordingly, accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He should be released forthwith if not wanted in any other case. K.B.A. Appeal accepted.