SHER BAHADUR KHAN, J.--Dost Muhammad (33) and Shamshad (33) were tried by the Additional Sessions Judge, Mardan, for committing the murder of Amanullah deceased on 29-6-1966 in the limits of village Sawal Dher. They were found guilty of the charge under section 302/34, P. P. C. and each sentenced to death. The convicts have appealed. Their case has also been referred to us under section 374, Cr. P. C. for confirmation of their death sentences. We propose to dispose of the appeal and the reference by this single judgment.
2. The facts found may be briefly stated as follows : Dost Mohammad and Shamshad appellants alongwith Shamroz absconder allegedly took away Amanullah (deceased to the hills near their village Sawal Dher on the pretext of collecting honey.
Shamshad was said to be armed with a shot-gun, while Shamroz had an 11-shot rifle with him. Dost Mohammad and Amanullah were empty-handed. There was a conspiracy between the two appellants and the absconder to kill Amanullah and in the hills they gave effect to the conspiracy when Shamshad fired at the deceased who was hit on the neck, as a result of which he fell down.
The second shot was fired at the back of the deceased and the head of the deceased was severed with a knife and tied in a chador so that the head went down to the bottom of the canal. The trunk of the body was buried separately in the hills at the spot where the deceased was done to death.
The disappearance of the deceased gave currency to a rumour in the village that he was murdered by Shamshad, Dost Mohammad appellants and Shamroz absconder. The police eventually started interrogating Dost Mohammad appellant who in turn informed Umara Khan S. I. that he would lead to the recovery of the dead body of Amanullah and he also disclosed that his accomplices were Shamshad appellant and Shamroz absconder.
3. Dost Mohammad appellant while in police custody led the police to the hills on 13-7-1966 and on his pointing out the trunk of the dead body of Amanullah deceased was recovered. The Doctor was sent for to perform post-mortem examination on the dead body at the spot who found that the body was decomposed without the head lying in the hill buried in stones covered with borries. The head was cut at the level of the first vertebra, fire-arm wound was detectable on the cut neck. The body was in a stage of advance decomposition, every part easily coming out, on manipulation foul smelling gases of decomposition were coming out of the body.
4. The same day Dost Mohammad led the police to canal bank and the head of Amanullah was recovered through Musafir P. W. who dived in the canal water. It was found tied with a chador with some stones and the head was identified to be that of Amanullah deceased.
5. Shamshad appellant was arrested on 22-10-1966 by Adam Khan S. I. (P. W. 8) while he was travelling in a bus.
6. Both Dost Mohammad and Shamshad appellants were produced before two different Magistrates and they made confessional statements. Dost Mohammad was produced before Mr. Mohammad Din Khan (P. W. 1), Magistrate 1st Class, on 18 7-1966. His statement was recorded in Urdu which translated in English would read as follows:- "Some 15/16 days ago on the night of Tuesday Shamshad and Shamroz residents of villages Shakar Tangi and Sawal Dher respectively came to me. Amanullah deceased was then sitting with me.
Shamshad and Shamroz both told us that we should go in the morning to the hills for collecting honey. They then returned to their respective villages. Next morning, we both went to the house of Shamroz in Uch Talu Banda and took tea with him at 8 in the morning and then we four left for the hills. Shamroz was armed with an 11-shot rifle, Shamshad had with him his shot-gun, while I was empty-handed and had only with me a jam (pot for collection of honey). Amanullah was empty- handed. We collected honey and ate the same and then we took rest there for some time. In the meantime, Amanullah went aside for easing himself and in his absence Shamroz told me that Amanullah had once beaten him and therefore today he had made out a programme for killing him. I entreated him not to do so, but he did not listen to me.
Then out of fear I kept quiet, when in the meantime, Amanullah came and I could not tell him anything about the scheme as I apprehended danger to my life. Thereafter, we all left for Cheena.
Amanullah was going ahead of all followed by Shamshad who is servant of Shamroz and Shamroz followed Shamshad. I was last of all. In the meantime, Shamshad turned back and looked at me and cautioned me to be alert. He then fired a shot at Amanullah which hit him on the neck and Amanullah fell down. Shamshad then reloaded his gun and fired a second shot hitting Amanullah on the waist. Thereafter Shamroz told me that if I disclosed anything about the incident to anybody I would meet the same fate at their hands. I in return promised that I will not disclose anything about the incident. Thereafter, we sat for an hour at the spot and then at the behest of Shamroz, Shamshad separated with his knife the head from the trunk of the body and then the head was wrapped in a chadar and we left the place leaving behind the trunk at the spot. The chadar in which the head of the deceased was wrapped was carried by Shamshad and I also on the way carried it for 10-12 paces out of fear. On reaching the canal, Shamshad tied a stone weighing 6 seers in the same chadar and threw the chadar with the head and the stone in the canal and it went down. We then returned to our houses. After 4-5 days the rumour got currency that the dead body of Amanullah was lying somewhere in the hills and that the people were holding us responsible for the murder. After 9 days of the incident, Shamshad came to our village for making some purchases and he told me that as a result of the rumour he along with Shamroz and two other absconders who are friends of Shamroz went at night time to the spot and buried the dead body of Amanullah in the limits of Kroppa Tangi. On the 10th day in the afternoon, I learnt that Shamshad and Shamroz alongwith his wife who belonged to Swat disappeared in a wagon carrying away with them their belongings. On the 11th day of the occurrence, the police came and interrogated me and took me with them and then I disclosed to the Thanedar the real position and showed to him all the places. The Thanedar on my pointing out recovered the head and the trunk of the dead body of Amanullah."
Shamshad was produced before Moinud-Din Khan (P. W. 2), Magistrate 1st Class, Mardan on 26-10- 66, and he also made a confessional statement which was recorded in Urdu which translated in English would read as follows :- "The wife of Amanullah deceased had illicit connection with Dost Mohammad son of Azad Gul of village Sawal Dher. Dost Mohammad conspired with me and Shamroz son of Rodi Gul of Sawal Dher for murdering Amanullah. He was assured by Mst. Bakhtmina wife of Amanullah that in case Amanullah was done to death she would marry him. Thereafter, I, Shamroz and Dost Muhammad, three of us conspired and took Amanullah on the pretext of collecting honey to the nearby hills of village Shakar Tangi. I was armed with an S. B. Shot-Gun (Exh. P. 1) and knife (Exh. P. 2). Dost Mohammad was empty-handed, while Shamroz had with him his .303 rifle. When we reached the hill, then by getting signal from Dost Mohammad I fired at Amanullah from the back side with the gun (Exh. P. 1) which hit him on the back side. Thereafter, Shamroz fired with his .303 rifle at Amanullah who was hit in the neck. Amanullah fell down and we returned to our villages. The next day we again went to the spot and I along with my two companions severed the head from the body of Amanullah with the knife (Exh. P. 2). Dost Mohammad then tied stones with the head and sank it down in the nearby canal. The trunk was buried near the spot of the crime."
7. Both the appellants denied to have participated in the commission of the offence.
Shamshad when questioned about the confessional statement (Exh. P. 0./3) allegedly made by him before Moinud-Din Khan Magistrate on 26-10.1966, stated that he made the same under the torture and coercion of the police. He denied that Dost Mohammad had illicit relations with Mst.
Bakhtmina wife of the deceased, and when asked to explain his abscondence for about three months, he stated that he kept away from the village out of fear of the police.
Before the Committing Magistrate, Dost Mohammad stated that he did not make any confessional statement (Exh. P. Z/2) on 18-7-1966 before Mr. Mohammad Din Khan, Magistrate. At the trial, he stated that the confessional statement was obtained from him under duress and torture by the police, as he was under police custody for about a week prior to the making of this confessional statement. He denied that he led the police to the hills and the dead body of Amanullah was recovered at his pointing out. He also denied that the head of the deceased Amanullah was recovered from a canal on his pointing out. The convict further stated that there had been criminal cases between him and Wahid Shah P. W. Sarbiland Khan P. W. was closely related to Wahid Shah, while Musafar P. W. was a chowkidar and under the direct control of Wahid Shah P. W., who is a lambardar.
No evidence was called in defence.
8. The prosecution examined Wahid Shah (P. W. 3), Musafar (P. W. 4), Sarbiland Khan (P. W. 5)
Niamat Khan (P. W. 6) and Umara Khan S. I. (P. W. 11), besides other witnesses, whose evidence is not very material. Wahid Shah deposed that in his presence Dost Mohammad appellant while in police custody went to a canal bank which was shown to them by the appellant and he told them that the head of the deceased was in the canal at that particular spot. Musafar chowkidar and Rahim Gul tonga driver got into the canal and after some diving they brought out the chadar (Exh.
P. 2) containing a human head. The head was that of Amanullah deceased and was taken into possession by the police officer in his presence. This witness is an enemy witness inasmuch as he admitted that he was charged for the murder of one Arab Khan and the father of Dost Mohammad appeared as a witness against him. He also admitted that he had charged Sherin Gul and Azad Gul father of Dost Mohammad for firing at him, but they were acquitted in that case. Musafar (P. W.
4) also deposed to the same effect saying that in his presence the appellant Dost Mohammad led the police to the canal and that at his pointing out the head of a man wrapped in the chadar was taken out by him out of the canal and that the head turned out to be that of Amanullah (deceased). The witness is altogether a disinterested witness and all that was said against was that he was a village chowkidar and was under the influence of Wahid Shah P. W. This is, however, not true, because Wahid Shah is lambardar of village Sawal Dher, while the witness is a chowkidar of village Shakar Tangi. Sarbiland Khan (P. W. 5) deposed that he accompanied the police party which was led by Dost Mohammad appellant to the hills and at the pointing out of Dost Mohammad the dead body was recovered and the head was missing. He is also an enemy witness inasmuch as he admitted that Wahid Shah lambardar is related to him.
9.Umara Khan (P. W. 11), Sub-Inspector Police Station Katlang, investigated the case. He was the officer who had heard a rumour about the murder of Amanullah and started a probe into the matter. He went to village Sawal Dher and arrested Dost Mohammad appellant under section 54, Cr. P. C. and interrogated him through Abdul Aziz Khan A. S. I. It was then that the appellant allegedly took him to the hills and the place where the dead body of Amanullah was buried was shown by the appellant and the officer prepared the injury sheet and inquest report in respect of the dead body and later Dost Mohammad also took the same officer in company of Musafar P. W. to the canal and on his pointing out the head of the deceased was taken out tied in a chadar by Musafar P. W. who had gone into the canal. The head was identified to be that of Amanullah (deceased). The Doctor examined the head at the spot and the Investigating Officer took into possession the chadar (Exh. P. 2) and the stone tied in the chadar vide Memo. Exh. P. Z. He also prepared the site plan (Exh. P. B.).
10.The learned Additional Sessions Judge disposed of the entire case against the two appellants in a short paragraph which can be reproduced with advantage. Paragraph 12 of the judgment reads-- "In this case besides the recovery of the dead body at the instance of Dost Mohammad are the confessions of the two accused. It is to be seen whether these confessions were voluntary ones or not, because the accused have retracted from them and it is to be further seen whether these confessions get support from other evidence on the file or not? Regarding these confessions I am of the opinion that these are voluntary ones, because when they were produced before the Magistrates they were given time to think over the matter and after the Magistrates were satisfied they then recorded these confessions. The accused did not inform the Magistrates about any third degree methods used against them by the police. In addition to that the confession of Dost Mohammad gets corroboration from the evidence of Wahid Shah, Musafar, Sarbiland Khan and Umara Khan S. I., P. Ws., who have deposed at the trial that the dead body and the head of Amanullah deceased were recovered at the instance of Dost Mohammad accused. I may say that the recovery of the head from the canal at the instance of Dost Mohammad is a very important piece of evidence against him, because the recovery of the head from a big canal was practically impossible unless and until the person knowing it pointed it out. Under these circumstances I am of the opinion that the confessions being voluntary ones have also got support from the circumstantial evidence as well. I, therefore, find both the accused guilty under section 302/34, P. P.
C. and convict them accordingly."
The above reading would clearly show that the learned Additional Sessions Judge called the two statements made by the two appellants, namely, Dost Mohammad and Shamshad, as confessions.
Taking the confessional statement of Dost Mohammad first, we find that the learned Additional Sessions Judge was absolutely wrong in calling the statement a confession. A confession has not been defined by the Evidence Act, but it is well established that "a confession is an acknowledgment in express words, by the accused in a criminal case of the truth of the guilty fact charged or of some essential part of it". A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be canfessed. A statement in which the accused admitted merely witnessing the perpetration of a crime but denied having participated in it and, on the other hand, alleged having protested against it, are not confessions. In the present case, the bare reading of the statement made by Dost Mohammad before Mr. Mohammad Din Khan Magistrate, 1st Class on 18-7-1966, would show that he showed himself to have taken no part in the killing, whatsoever, and, on the other hand, he stated that the co-accused Shamshad and the absconder Shamroz were responsible for the murder. This statement of Dost Mohammad appellant by no stretch of imagination can be called a "confession" as understood in law. It is an exculpatory statement denying the guilt and is not a confession. Having said this much, we are left with the two pieces of evidence appearing against the appellant Dost Mohammad in the shape of the recoveries of the trunk of the dead body and the head from two different places at his instance. Both the recoveries were allegedly effected at the instance of Dost Mohammad in presence of Umara Khan S. I. (P. W.
11) after his arrest under section 54, Cr. P. C. and interrogation. The appellant informed the police officer that he could lead him to the place where he had buried the dead body of Amanullah, and he then led the police and the witnesses to the place known as "Krappa Tangi" in the hills and pointed out the place where the dead body was buried. The appellant then allegedly uncovered the dead body which had no head. It was thereafter that the case was registered against the appellant and the murasila (Exh. P. A./1) was sent to the police station. Now one of the witnesses Rahim Gul who appeared to be an independent witness was not examined. The other witness, Sarbiland Khan (P. W. 5) is an interested witness inasmuch as he admitted, in his cross- examination, that Wahid Shah lambardar was related to him. Wahid Shah in turn, it was brought on the record, admitted that he was charged for the murder of one Arab Khan and the father of the appellant (Dost Mohammad) appeared as a witness against him. He also admitted that he had charged Sherin Khan and Azad Gul father of Dost Mobammad appellant for firing at him, but they were acquitted. The recovery of the trunk of the dead body at the instance of the appellant was, therefore, doubtful, as no independent witness had witnessed it and the only independent witness Rahim Gul, who allegedly witnessed it, was not examined. The recovery of the head of the dead body from the canal at the instance of the appellant was well established. Here, it was the prosecution case that after the recovery of the trunk the party left the spot and it was near Habib Dad Koruna that the Investigating Officer interrogated Dost Mohammad or again about the head of the deceased and he informed him that he had thrown the head in the canal. Musafar (P. W. 4) chowkidar of village Shakar Tangi, dived into the canal and brought out the head from the place which was pointed out by the appellant by throwing a stone into the canal. The head was tied with a stone in a chadar (Exh. P. 2) and it was identified to be that of the deceased. It was also contended that Musafar was not an independent witness inasmuch as he was a village chowkidar and was under the influence of Wahid Shah (P. W. 3), lambardar of Sawal Dher, who was an enemy of the appellant. It is not so, Musafar is a chowkidar of the different village, namely, Shakar. Tangi and he cannot be said to be under the influence of Wahid Shah who is a lambardar of village Sawal Dher. The recovery of the head of the deceased at the instance of the appellant was, therefore, well established.
11. We now know that the entire evidence brought on the record against the appellant Dost Mohammad was as exculpatory statement, wherein he had denied to have committed the offence and had stated that he had gone to the hills alongwith the absconder and the co-accused for collecting honey and that he was not a party to conspiracy of murdering the deceased, and that he did not disclose to the deceased that there was a conspiracy to kill him, because the absconder and the co-accused were armed and he feared apprehension to his life in case he disclosed to the deceased what was in store for him. The other piece of evidence against the appellant was the recovery of the dead body, but as discussed above, it was not established beyond reasonable doubt that the recovery was made at the instance of the appellant, and thus it is only the recovery of the head of the deceased which was made at the instance of the appellant which can be used against him as a piece of evidence. Besides, there is the retracted confession of the co-accused Shamshad, wherein he has allotted the role of killing Amanullah to Dost Mohammad in the same manner as to himself. It need hardly be stated that the evi-dentiary value of a retracted confession against a co-accused is considerably less and the very fullest corroboration of such a confession is necessary. A retracted confession should carry practically no weight as against a person other than its maker; it is not made on oath, it is not tested, is denied by the maker himself, who had thus lied on one or other of the occasions. The very fullest corroboration would be necessary in such a case, far more than would be demanded for the sworn testimony of an accomplice on oath.
Therefore, the retracted confession of an accused is not sufficient alone to justify the conviction of a co-accused. In holding so, we place reliance on the observations made by Munir, C. J. as he then was, in his commentary on the Law of Evidence at page 168 (Volume 1). Their Lordships of the Supreme Court in The State v. Minhun alias Gul Hassan , at page 822 also relied on the above observations by Munir, C. J. in his commentary on the Law of Evidence at page 168 (Vol. 1). The same proposition of law lately came before their Lordships of the Supreme Court for consideration in Barkat v. The State , and it was observed at page 693 of the report by his Lordship Hamoodur Rahman, J. as he then was-- "In any event, this confession has been retracted and, therefore, in accordance with the rule of prudence, now generally accepted, it would be unsafe to act upon it without corroboration. It is thus itself a piece of tainted evidence which cannot be utilized to corroborate other tainted evidence, such as that of accomplices or of the extra-judicial confession."
The retracted confession of Shamshad appellant, therefore, cannot be used as a piece of evidence against Dost Mohammad appellant.
12.The question which still remains to be answered is as to what offence did Dost Mohammad appellant commit in throwing the head of the deceased in a canal. As it was established that it was recovered at the instance of the appellant and the appellant had assisted in the disposal of the head after he knew that the deceased was murdered by someone whom he wished to shield, the appellant could not have pointed out the exact location of the place where the head was thrown unless he knew of its existence and this knowledge he could have only acquired by participating in the disposal of the head of the dead man. For these reasons, we have come to the conclusion that the appeal of Dost Mohammad appellant must be allowed to the extent that the conviction and sentence of the appellant under section 302/34, P. P. C. must be set aside. He is accordingly acquitted of the charge, but he is convicted under section 201, P. P. C. and sentenced to suffer rigorous imprisonment for seven years. His death sentence is not confirmed.
13.We are now left with the case of Shamshad appellant. It is admitted that he was arrested by Adam Khan S. I. on 22-10-1966, i,e, some four months after the occurrence. By that time, the trunk and the head of the deceased were already recovered by the police, and thus all that appeared against him in evidence was his retracted confession. He stated that this confession was made by him under the torture and coercion of police. Thus, it is only the retracted confession made by the appellant before Mr. Moinud-Din Khan, Magistrate Ist Class, on 26-10-1966, which is a piece of evidence appearing against him. It is true that against its maker a retracted confession may constitute a sufficient basis for conviction, provided it is true and voluntary, though even in such a case it is safer and usual to require corroboration. In the precedent case of The State v. Minhun alias Gul Hassan, their Lordships of the Supreme Court affirmed this proposition of law by saying-- "Unless a retracted confession is corroborated in material particulars it is not prudent to base a1 2 conviction in a criminal case on its strength alone."
The retracted confession made by Shamshad appellant was not corroborated at all from any independent quarter. As stated above, the recoveries of the trunk and the head were effected earlier and his reference in the confession to these recoveries can be easily explained by saying that he may have been asked to make reference to these recoveries which were effected by the police. This being the position, we come to the conclusion that no case against Shamshad appellant was established, and we, therefore, accept his appeal, set aside his conviction and sentence under section 302/34, P. P. C. and do not confirm his death sentence. We direct that he should be set at liberty at once provided always that he is not wanted in any other case.
BASHIRUDDIN AHMAD, C. J.--I concur. PLD 1964 SC 813 1968 SCMR 685