ATAULLAH SAJJAD, J.--Ghulam Muhammad appellant was convicted by Mr. Muhammad Zafarullah, Sessions Judge, Sargodha, under section 302 of the Pakistan Penal Code and sentenced to transportation for life for causing the death of Sharif, who was his employer.
2. The occurrence took place on the night between 28th and 29th of September 1965, at about 10- 30 p.m. in Chak No, 112/ Southern, Police Station, Sargodha Cantt. The F. I. R. Exh. P. J. was lodged by Ghulam Muhammad appellant himself in Police Station Cantt., Sargodha on 29th of September 1965 at 7-30 a. m. and was recorded by S. I. Muhammad Muzaffar Butt (P. W. 11) Ghulam Muhammad was accompanied by Anwarul Haq (P. W. 7) who is the Lambardar of the village. The distance between the police station and the place of occurrence is 14 miles.
3. There is no eye-witness in this case. The trial Court in arriving at the conclusion of the culpability of the appellant has relied upon the extra-judicial confession made by the appellant before Anwarul Haq (P. W. 7), Ghulam Jilani (P. W. 8), Zia-ul-Haq (P. W. 9) and Manzoor Husain (P. W. 10), the judicial confession made before Mr. Muhammad Siddiq (P. W. 5) Magistrate First Class, Sargodha, and the recoveries of the vahola P. 1, blood-stained shirt P. 2 and dhoti P. 3 belonging to the appellant which were recovered from a beam of the ceiling of the dera of the deceased on 3rd of October 1965. These articles were found by the Serologist to have been stained with human blood.
4. It appears from the contents of the F. I. R. that the appellant was an employee of the deceased who had haveli in kills No, 21 of square No, 7 which had been allotted to him in lieu of his claim as a refugee. The deceased had sent away his children 10 or 12 days before the occurrence and the appellant was staying with him in the haveli. At about 10-30 in the night the appellant was aroused by the barking of the dogs and of the sound of the sofas being used. He immediately went towards the cost of Sharif and saw two persons giving him sota blows. The appellant raised a hue and cry which attracted to the spot Liaqat Ali (P. W. 6), Anwarul Haq (P. W. 7), Ghulam Jilani (P. W. 8), Muhammad Sharif Chaukidar, Sardar and Manak. They tried to search for the culprits but did not succeed in their attempt to catch them. Muhammad Sharif died soon after the receipt of injuries.
5. The police arrived at the spot next day at about 9 a. m. after covering about eleven miles on a bus, and three miles from the road to the place of occurrence, on a tonga. The Investigating Officer drew up the necessary documents and sent the body for post-mortem examination.
6. Dr. Khurshid Alam (P. W. 1) found two contusion marks measuring 3" x 1" and 4" x 1" in the front of the left parietal region of the deceased. There was also a lacerated wound on the pinna of the left ear. The left parietal and temporal bones were found to have been badly fractured. Death in the opinion of the doctor was due to the compression of the brain on account of the two contusions referred to above.
7. The Investigating Officer took blood-stained earth from the spot. He also took possession of the cot and the bedding of the deceased into possession. No clue of the murder was found till 3rd of October 1965, on which date at about 10 a. m. the appellant himself appeared at the dera of Anwarul Haq (P. W. 7) where besides Anwarul Haq, Ghulam Jilani (P. W. 8); Ziaul Haq (P. W. 9) and Manzoor Hussain (P. W. 10) were present. Zia-ul-Haq is actually a resident of Chak No, 113 but was the Chairman of the Union Council which includes Chak No,
112. Manzoor Hussain is also not a resident of Cbak No, 112 but belongs to Chak No,
107. The appellant stated before them that as a number of innocent villagers were being harassed he had, therefore, decided to confess. He told them that he had murdered the deceased because he had found his sister Mst. Rashidan Bibi in a compromising position with the deceased about a week before the occurrence. After this confession was made the appellant was produced before the police who were staying in the building of the village school. This school is at a distance of one and half squares from the dera where the confession was made. On interrogation, the appellant led the police to the dera of the deceased where from the ceiling of a room his blood-stained clothes and the vahola P. 1 the weapon of offence were recovered. The appellant and his sister Mst. Rashidan Bibi were then produced before Mr. Muhammad Siddiq Magistrate (P. W. 5) on 4th of October 1965 who recorded the confession of the appellant Exh. P. Q./2 as also the statement of Mst. Rashidan his sister under section 164, Cr. P. C.
8. The appellant at the trial denied the factum of having made an extra-judicial confession and retracted the judicial confession made by him. He stated before the committing Magistrate that the judicial confession was made as the police was harassing him and at the trial further stated that he was threatened that his sister will be maltreated if he did not confess. He denied the recoveries and said that the weapon of offence and the garments, said to have been recovered at his instance, did not belong to him. The learned trial Court found that the witnesses of extra-judicial confession were independent and had no animus to involve the appellant in a false case. It also found that all legal formalities had been observed by Mr. Muhammad Siddiq Magistrate (P. W. 5) who recorded the judicial confession of the appellant. It found corroboration for the confession from the recoveries of the blood-stained garments and vahola P. 1.
9. We are not sure that Anwarul Haq and others were attracted to the spot by the hue and cry raised by the appellant and he along with Anwarul Haq had gone to the police station to lodge a report. It is in evidence that the houses of Sardar and Manak are near the place of occurrence and that they were also attracted to the spot along with other witnesses. It was admitted by Liaqat Ali before the committing Magistrate that five or six houses of Christians intervene between his dera and that of the deceased. He admitted at the trial that about thirty persons collected at the spot after the cry was raised by the appellant but was not able to name anyone of them. He also admitted that when the police arrived, Anwarul Haq and Ghulam Muhammad were present at the spot. No action was taken by Anwarul Haq to lodge the report during the night on the ground that there was no transport available. He in this respect was given a lie by Liaqat Ali who said that traffic was running on the main road day and night. The police is said to have reached the spot at 9 a. m.
The indications are that these witnesses came to know of the murder in the morning. The police was contacted thereafter and Ghulam Muhammad was persuaded to make the statement which constitutes the F. I. R. in this case.
10.We feel that the evidence regarding extra-judicial confession and the judicial confession was not analysed in accordance with the principles which have been evolved by the Courts of law for appraisal of such evidence. The extra-judicial confession is a weak specie of evidence and before it is made the basis of conviction, it has to be subjected to close scrutiny.
11.The motive disclosed by the appellant for the com-mission of the murder was that he had seen his sister eight or ten days before the occurrence in a compromising position near a hillock with the deceased. It is stated in the F. I. R. that the deceased had sent away his children ten or twelve days before the occurrence. It also appears from the record that the appellant was perhaps putting up with the deceased in the absence of his children although Ghulam Jilani P. W. stated that the appellant had a separate house in the abadi where his sister Mst. Rashidan was also staying since last four or five months. Now the only excuse given by the appellant for not committing the murder of the deceased there and then is that he had no weapon with him. It is strange that in spite of seeing his sister in a compromising position with the deceased the appellant continued staying with him. It is still more strange that during all these days the accused did not do anything to harm the deceased although some weapon must have been available at the dera. Vahola is an ordinary implement of husbandry. It must have been lying at the dera of the deceased and could always be available to the appellant. The reason given in the confession for not avenging the insult does not carry conviction. We cannot believe that the appellant who blurted out his guilt after four or five days, was so cool-minded and self-possessed that ho kept the feelings of humiliation and disgrace suppressed in his mind for eight or ten days to such an extent that no resident of the village came to know of this.
12.The witnesses before whom the extra-judicial confession was made stated that the appellant had told them that he was persuaded to make the confession because innocent people were being harassed. No such reason was given by these witnesses before the committing Magistrate.
The Sub-Inspector naturally denied that he harassed anybody. Liaqat All stated that the police had summoned the whole village but there is no indication in the record to show that there was any large scale interrogation by the police. Anwarul Haq P. W. stated at the trial that after the confession he and other P. Ws. questioned the appellant for about 45 minutes and then produced him before the police. Ghulam Mani P. W. on the other hand stated that no question was asked from the appellant but he took about fifteen minutes in narrating his story. Ziaul Haq P. W. stated that the appellant was produced before the police immediately after the confession and although they had been making enquiries earlier from the appellant but no question was asked at the time of confession. We have, therefore, grave doubts about the fact that this extra-judicial confession was actually made before these witnesses.
13.We are also inclined to think that even if such a confession was made, it was not voluntary. It is in the evidence of Anwarul Haq (P. W. 7) that the appellant was working at the dera of the deceased but the police called him occasionally. The Sub-Inspector completely denied that he had ever called the appellant at any time before he was produced before him after the confession.
Ziaul Hag P. W. stated that he and his companions had been visiting the dera of Sharif deceased for making enquiries from the appellant and had visited the dera two or three days earlier. We cannot believe that the appellant who was the only person present in the dera at the time of the occurrence could be kept so detached from investigation. According to Anwarul Haq and Ziaul Haq he was subjected to interrogation on occasions. This appears only to be a half truth. It is not difficult to say that the appellant was under some sort of surveillance from the very start even if he may not have been kept continuously in custody. The Sub-Inspector had finished all the preliminaries on the first day of his arrival at the spot. While in the witness-box he was not able to satisfactorily explain the reason for his continued stay at the spot for about five days. He returned from the spot only when the confession had been made and recoveries were effected as a result thereof.
14.Manzoor Hussain P. W. who is a resident of Chak No, 107 and professes to have been visiting the spot in connection with the investigation, admitted before the committing Magistrate that when the appellant came to the dera of Anwarul Haq, the police were there although he asserted in the latter part of that statement that at the time the confession was made, no police officer was present. We feel that the police may well have been staying at the dera of Anwarul Haq and the story that they were staying in the school building may have been introduced to show that the confession was not made at a place where police were present. The extra-judicial confession, apart from other defects, is also hit by the provisions of section 24 of the Evidence Act.
15.The medical evidence is not in line with this confession. The weapon of offence in this case is a vahola which had a sharp side. If the intention of the appellant, as is alleged by the prosecution, was to kill the deceased, it is not understandable why he chose to use the blunt side of the vahola.
The description of the injuries clearly suggests that they were caused by a lathi rather than the blunt side of the vahola as in that case we expect that the socket joining the blade with the handle would fall on the body and cause a semi-circular wound.
16.Now we come to the judicial confession. it is just a reproduction of the extra-judicial confession. It specifically refers to the recoveries made after the extra-judicial confession and the object of the judicial confession appears to be to obtain the judicial stamp on the confession which we have found was neither voluntary nor true.
17.We, however, find that the judicial confession requires rejection for other reasons as well. In the first instance, before giving the time to the appellant to make up his mind to make a confession, a proper warning as is required by subsection (3) of section 164, Cr. P. C. was not administered to him. All that the learned Magistrate told him was that he should sit down and think over the matter and then make a statement according to his own free will. We do not think this warning was sufficient to bring to the mind of the confessor the serious results that had to follow the confession.
The warning is to be administered in the language used in subsection (3) of section 164, Cr. P. C. and where it is administered in a casual way the Courts have refused to rely on such a confession.
(See In re: Perumal Kudumban . The learned Magistrate even did not explain to the accused before time was allowed for consideration that he was not bound to make a confession and if he made one, it will be used against him. The warning administered by the learned Magistrate in this case does not conform to the one prescribed by the Statute and we think that this failure is enough to vitiate the confession apart from other circumstances which make it unacceptable to us.
18.We have found above that the reasons given for the confession are not convincing. The appellant when questioned by the Magistrate as to why was he confessing, stated that he wanted to speak the truth. We have, however, to see whether this impulse to speak the truth was genuine and creation of a penitent mind or was the transitory production of some extraneous circumstances. We know it from the record that the sister of the appellant was also produced before the Magistrate on the same day for her statement being recorded under section 164, Cr. P.
C., obviously with a view to supplement the evidence of confession. The Sub-Inspector when questioned as to how the sister of the appellant was brought to Court, stated that he had directed the father of the appellant to bring his daughter to Court. He admitted that he left the spot on the1 evening of the 3rd of October 1965, after taking the appellant into custody. Whether the sister of the appellant was brought to Court by her father on the direction of the Sub-Inspector or was in fact brought by the Sub-Inspector from the village as suggested by the learned counsel for the appellant, we cannot but come to the conclusion that the mind of the appellant was deeply affected by this circumstance, especially, when he knew that the Investi-gating Officer was somewhere outside the Court-room. These circumstances lend colour to the statement of the appellant made at the trial that he was threatened that his sister would be harassed.
19.The confession was retracted at the first opportunity before the committing Magistrate. The prisoners are not infrequently alleged to have been prompted by a desire to tell the truth on account of regard for truth but this desire vanishes away as soon as they breath in a more free atmosphere. The learned Magistrate stated that he had remanded the appellant to judicial custody after recording his confession but the Sub-Inspector stated that the appellant was handed back to him for being taken to the judicial custody. No order was passed by the learned Magistrate, before whom he made the confession, remanding him to judicial custody and we have not been able to find any indication on this record as to when the appellant was produced before the Ilaqa Magistrate for being remanded to judicial custody. It, therefore, cannot be said that the confession was made in a free atmosphere with full consciousness of its results by the appellant.
20.It would have been better for the learned Magistrate if he had remanded the appellant to judicial custody before recording his confession. This would have assured the voluntariness of the confessions.
21.Rule 13, Chapter XIII, Volume III of the High Court Rules and Orders lays down that at least half an hour's time should be allowed to a prisoner to compose himself and to decide whether he would like to make a confession or not. In Jahangiri La! and others v. Emperor it was observed that half an hour's time should be given to the confessor for composing himself and consider whether he would like to make a confession or not. We do not think that this fixation of time, in any way, places any embargo on the discretion of a Magistrate to remand a prisoner to judicial custody for a reasonable time before recording his confession. In Sarwan Singh Rattan Singh v. State of Punjab it was observed by the Supreme Court of India that the effective way of freeing the mind of the accused person from the fear of the police was to send him to jail custody and give him adequate time to consider whether he should make a confession at all. Their Lordships further observed that it was difficult to lay down any hard and fast rule but it was reasonable to insist upon giving an accused person at least twenty-four hours to decide whether or not he should make a confession. We respectfully agree with these observations and we think if this salutary practice is followed, the voluntariness of confessions will be more assured.
22.The learned trial Court has sought corroboration of the retracted confession from recoveries.
On an analysis of the evidence regarding recoveries we have come to the conclusion that they do not serve as a corroborative piece of evidence in this case. The learned trial Judge in relying upon them repelled the contention of the defence that there was difference between the witnesses as to the time of recoveries, and the recoveries should, therefore, not be believed. Ordinarily slight difference in the time of the recoveries would not affect the factum of recoveries if the witnesses are independent. Now the witnesses of recoveries are Manzoor Husain, Ghulam Jilani, An warul Haq and Ziaul Haq P. Ws. We have found that their statements with regard to extra-judicial confession are not correct. Ghulam Jilani stated that the recoveries were made at 12 noon while Liaqat Ali stated that the recoveries were effected at 2-30 p. m. The Sub-Inspector admitted that the appellant was produced before him at about 11 a. m. but stated that recoveries were effected at 6- 30 p. m. It is not known what the Sub-Inspector was doing during all these hours although he tells us that he was interrogating the appellant and complying with other formalities. There is a lot of difference between 12 noon or 2-30 in the afternoon and 6-30 p. m. Ziaul Haq stated that they had2 3 been questioning the accused and had gone to the dera of Sharif two or three days before the occurrence. It is unlikely that if the witnesses had been to the dera of Sharif they would not have noticed the clothes and the vahola in the beam of the ceiling which according to the plan is quite visible. We, therefore, find that the recoveries were not made as deposed to by the prosecution. We hold that they are not genuine.
23.In view of what has been stated above, we allow the appeal and set aside the conviction and sentence of the appellant. We direct that he be released forthwith if he is not required to be lawfully detained in some other case. A 1 R 1940 Mad. 562 AIR. 1935 Lah. 230 AIR 1957 SC 637