NASIR ASLAM ZAHID, J.---By judgment dated 12th March, 1980 the Sessions Judge, Dadu, convicted the appellant Sabhago son of Soomar Khaskeli in Sessions Case No. 372 of 1976 under section 302, P. P. C. For the murder of Karim Dino son of Muhammad and sentenced him to death. By a short order dated 21st October, 1981 we allowed the appeal of the appellant and refused to confirm the sentence of death for reasons to be recorded later. The reasons that led us to pass the aforesaid short order dated 21st October, 1981 are contained in this judgment.
2. The prosecution case according to the F. I. R. Lodged at 9-15 a. m. On 11th July, 1973 by Soomar brother of the deceased, at Police Station Jamshoro, District Dadu, is that the complainant party and the accused resided in village Petaro, and near the house of the complainant, the house of deceased Karim Dino and P. W. 7 Kirar is situated with a common courtyard. According to the F. I. R.
In the courtyard during the night deceased Karim Dino, his wife Bihul (not examined by the prosecution), their son P. W. 9 Ismail, P. W. 7 Kirir and his wife P. W. 6 Mst. Fatima were sleeping. The complainant was sleeping in the courtyard of his own house, which was two houses away from the house of the deceased. At about 3.00 a. m. On 11th July, .1973 the complainant heard cries of "thief !.
Thief !" coming from the house of the deceased and he, therefore, ran towards that place.
According to him Bachoo, Umar and Ibrahim also came running from their houses. They found Kirir and Ismail standing there and they also saw one Hashim son of Allah Dino Khaskeli standing there saying to appellant Sabhago to run away as other people had arrived. After saying this Hashim pulled Kirir down and ran away. They then went to Kirir's house. Where they saw the appellant causing blows with sharp side of the hatchet on the head of deceased Karim Dino who fell down.
Appellant also ran away. On inquiries made the complainant came to know from Mst. Bibul and Mst. Fatima that Hashim with evil design had tried to awake Mst. Fatima and out rage her modesty on which Mst. Fatima raised cries which woke up others who saw Hashim and appellant and that the appellant who was armed with a hatchet tried to hide in the room of Kirir. The complainant tried to catch him but on the instigation of Hashim, the appellant caused the deceased blow on his head with sharp side of the hatchet and then ran away. Thereafter the complainant went to Nekmard Jam Suleman, who after hearing the facts accompanied the complainant to the wardat, from where the complainant went to the Police Station to lodge the report. The prosecution case is based on the ocular evidence of P. W. 6 Mst. Fatima, P. W. 7 Kirir and P. W. 9 Ismail. According to the prosecution the ocular testimony is corroborated by the evidence of P. W. 11 Jam Suleman and the complainant P. W. 5 Soomar. Apart from this evidence the prosecution relied upon the judicial confession dated 25th July, 1973 of the appellant and the evidence of S. D. M. Mr. Ghulam Hussain (P. W. 13) who recorded the judicial confession, which was retracted by the appellant. The prosecution also relied upon the recovery of the blood-stained hatchet. The learned trial Court did not rely upon the judicial confession on account of delay of three days in its recording and also did not rely upon the recoveries. The trial Court, however, accepting the ocular testimony of P. W. 6, 7 and 9 and the corroborative evidence of P. W. 5 and P. W. 11, came to the conclusion that the prosecution has proved its case, and, as observed earlier, convicted the appellant and sentenced him to death.
3. As mentioned earlier, the prosecution case is mainly based on the ocular testimony of P. W. 6 Mst. Fatima, P. W. 7 Kirir and P. W. 9 Ismail. According to the complainant P. W. 5 Soomar, brother of the deceased, as per F. I. R. Lodged by him; he had also seen the incident. However, in his evidence before the trial Court, he has contradicted himself and did riot give evidence that he was an eyewitness, but deposed to the effect that he saw the appellant and Hashim running away which makes it obvious that he did not see the incident at all. According to the F. I. R. As well as the evidence of P. W. 5, the appellant Sabhago had come alongwith Hashim and according to his testimony Hashim was clearly an accomplice. However, Hashim who was also later on arrested by the Police was let off by then and he was not made an accused. He was also not examined as a witness.
4. In the evidence of Mst. Fatima (P. W. 6), as well as that of P, W. 7 Kirir, there is no mention of Hashim at all and as per their evidence only the appellant had come. According to the testimony of Mst. Fatima, she was sleeping with her husband when she received a slight stroke of the handle of the hatchet which woke her up and saw the appellant standing, on account of which she started raising cries. She was very emphatic that the appellant had come atone and no body had come with him. In the cross-examination, she had stated that she know the appellant since his birth and then stated that the appellant had only come to her on the night of the incident. This would show that according to Mst. Fatima, the accused had come to her for the first time on that night.
However, later on she herself stated in the cross-examination that the appellant had illicit terms with, her. If it was a pre-arranged meeting and only she had been woken up by the appellant and she had recognised him, there would be no occasion for raising any alarm. On the other hand, if the appellant had come for the first time with immoral intentions it would be natural for Mst. Fatima to raise and alarm, but in that case bet statement, that she had illicit terms with the appellant, cannot be explained Further if Mst. Fatima had raised an alarm, normally the appellant should have run away as there was a number of persons sleeping in the courtyard. According to Mst.
Fatima, however, the appellant went inside the room of Karimdino. We have then noticed that according to the F. I. R., the version of the eye-witnesses was that it was Hashim who had awakened Mst. Fatima with the intention of outraging her modesty. With these infirmities and contradictions, the evidence of Mst. Fatima does not inspire any confidence.
5. P. W. 7 Kirir, husband of Mst. Fatima, is also an eye-witness. This witness also does not give any evidence about the presence of Hashim alongwith the appellant on the night of the `accident.
According to his evidence, the appellant had come alone. According to this witness, he was sleeping in his house and he woke up on the cries 'of his wife Mst. Fatima and his sister Mst. Bibul (wife of the deceased Karimdino). Both the ladies were raising cries of `thief !,. Thief !'according to this witness. On waking up he saw the deceased already awake and- standing there and then the deceased went inside the room. The witness followed the deceased and there he saw the appellant giving hatchet blow on the head of the deceased who fell down. According to Kirir, the appellant tried to run away and the witness tried to grapple with him, on which the appellant pushed him aside and ran away with the hatchet in his hand. The witness states that he saw P. W.
Ismail who woke up and came to the wardat but the appellant raised hatchet against Ismail who stood aside and then the appellant ran away. According to this witness he informed P. W. Ismail that the appellant had caused hatchet blow to the deceased. In his cross--examtnation he was asked a specific question to which he replied that he had not seen any other person except the appellant at the time of the incident. This answer would show that according to this witness.
Hashim was not there. Further according to the testimony of this witness, P. W. Ismail is not an eye- witness to the murder of the deceased. Kirir does not state in his evidence for what purpose the appellant bad come to the house and whether any alteration took place between the appellant and the deceased inside the room. He only states that he followed Karimdino and inside the room he saw the appellant giving hatchet blow on the head of the deceased. Mst. Fatima has already admitted about her illicit terms with the appellant and if the appellant bad come with bad intention against Mst. Fatima and woken her up, Kirir sleeping on the same cot with Mst. Fatima would have woken up immediately and would have gone after the appellant. It is Kirir who should have the greatest grievance against the appellant. However, from his testimony it appears that he just remained an eye-witness to the entire drama without doing anything. It was admittedly a dark night and the incident is alleged to have taken place at 3-00 a. m. There is no evidence that there was any light inside the room, where the incident is supposed to have taken place. According to Kirir, he had not seen the appellant going inside the room from the courtyard. According to him, when he had woken up, the appellant was already inside the room. With a dark night and with no light inside the room at 3-00 a. m. It would be difficult for Kirir to see the blow being given by the appellant to the deceased as deposed by him in his evidence.
We have not been impressed by the evidence of P. W. Kirir. On the question of the presence of Hashim there is contradiction between his evidence and the evidence of the complainant.
According to him, he had seen the appellant actually giving the solitary hatchet blow to the deceased. As observed by us earlier it is doubtful whether he could have seen this one blow being given inside the room at that time on the- dark night with no light. He has not given evidence that there was .Any light in the room. Admittedly all them were sleeping in the courtyard and in the absence of any evidence to the effect that a light was on, the presumption would be that at 3-00 a. m. On a dark night when there was no one inside the room with everyone sleeping outside in the courtyard, no light would be on inside the room. The evidence of this witness is not reliable. The story as given by Kirir and his wife Fatima appears rather improbable.
6. The only other eye-witness is P. W. 9 Ismail son of the deceased. According to his evidence, he had woken up on hearing cries and he saw the appellant giving hatchet blow to the deceased after which the appellant ran away taking away his hatchet. According to him, Kirir, Mst. Fatima and Mst. Bibul, wife of the deceased, were already awake before the witness woke up. According to his evidence, therefore, he was an eye--witness to the actual incident, in which the appellant caused one fatal hatchet blow to the deceased. According to Kirir, however, P. W. Ismail could not have seen the incidents Kirir himself told Ismail about the hatchet blow given by the appellant to the deceased. Further, as noted earlier, the incident is alleged to have taken place inside the dark room. But according to this witness he saw the appellant giving hatchet blow to the deceased. In the dark night and with no light on in the room we are doubtful whether this witness Could have seen the incident of one hatchet blow being given inside the room. Further this witness also does not talk about the presence of Hashim at all. His evidence in this regard contradicts the evidence of the complainant Soomar. His evidence also contradicts the evidence of Kirir as, according to Kirir, P.
W. Ismail was not an eye-witness. In these circumstances, the evidence of P. W, Ismail, who is taken as an eye-witness, cannot be relied upon.
7. There is no other witnesses whose evidence has been relied upon by the trial Court are the complainant P. W. 5 Soomar and P. W. 11 Nekmard Jam Suleman. From the F. I. R. Lodged by the complainant it had appeared that the complainant was an eye-witness. However, in his evidence he has candidly stated that he did not see the incident at all. According to his evidence, when he reached near the house of Kirir he saw the appellants Sabhago and Hashim running away and that the appellant was armed with a hatchet while Hashim was armed with a danda and the complainant saw the deceased lying injured with hatchet injury on his head and he came to know about the facts relating to the murder of deceased from Mst. Fatima. He has further stated in the cross-examina--tion that Jam Suleman had gone to the S. H. O. Of the Police Station and got the F.
I. R. Recorded and the Police called the complainant to affix his thumb-impression on the F. I. R. He further admitted that the appellant used to visit the house of Mst. Fatima. We have found it difficult to rely upon his evidence. On his own evidence, P. W. Soomar was not an eyewitness and he came to know about the facts from Mst. Fatima. We have already observed that reliance cannot be placed on the evidence of Mst. Fatima. Further this witness talks about 2 persons namely the appellant and Hashim. He is very clear about their presence as he saw them running away. He had also seen Hashim with a danda. His evidence contradicts the evidence of other eye-witnesses on the question of the presence of Hashim at the scene of the incident and as having taken part in the entire incident. It is further significant to note that according to his evidence the F. I. R. Was got recorded by P. W. Jam Suleman and he was only called to affix his thumb-impression. There are other material contradictions between the evidence given before the trial Court by this witness and the facts alleged in the F. I. R.
8. P. W. 11 is Jam Suleman, Zamindar and Nekmard of the village Patero. In his examination-in-chief he has repeated what was, according to him, stated to him by the complainant. According to him the complainant had also told him about the presence of Hashim and that he had taken part in the incident. This witness bad gone with the com--plainant to the scene of incident and then be took the complainant in his jeep to the Police Station where F. I. R. Was lodged. In his cross--examination he has stated that Kirir, Mst. Fatima. Mst. Bibul and Ismail had informed him that Hashim was with the appellant. His evidence contradicts the evidence of the three eye-witnesses that Hashim was not there. According to the 3 eye-witnesses appellant had come alone but according to Jam.
Suleman, all the eye-witnesses had informed him that Hashim was also with the appellant. Being the Zamindar and Nekmard of the village, the fact that he had taken the complainant in his jeep to the Police Station, and the glaring contradictions between the F. I. R. And the evidence of the complainant, lead weight to the statement of the complainant that in fact the F. I. R. Was got recorded by Jam Suleman and only thumb-impression of the complainant was obtained on the F.
I. R Reliance cannot be placed on the testimony of this witness.
9. Apart from the evidence of these 5 witnesses, the prosecution relied upon the judicial confession dated 25th July, 1973 by the accused before P. .W. 13, Mr. Ghulam Haider, at that time S. D. M. Kotri.
The Magistrate had asked the accused about the date of his arrest and according to the evidence of P. W. 13, the appellant informed that he was arrested on 22nd July, 1973 at 6-00 p. m. From village Petaro. The Investigating Officer, S. H. O. Abdur Razzaq (P. W. 12) had stated that on 11th July, 1973 F. I.
R. Had been recorded and he came to know about this case at 9-30 a. m. On the same day and went to the scene of the wardat and secured blood-stained earth and prepared mashirnamas and held the inquest and sent the dead body to the Medical Officer, Kotri for post-mortem examination and also searched the houses of appellant and Hashim but nothing incriminating was found. He recorded the statements of the witnesses next day i.e. On 12th July, 1973. According to his evidence he continued search against the appellant till 22nd July, 1973 but be was not available at, his residence but on 22nd July, 1973 he arrested the appellant in the presence of mashirs Jam Suleman and Pandhi from the Otak of Jam Suleman at Petaro. He arrested Hashim on 22nd July, 1973 and on 25th July, 1973 the appellant was produced before S. D. M. Kotri, for recording his judicial confession. In his cross-examination he has denied that he had detained the appellant for 12 days in the Police lock-up but falsely shown the date of his arrest as 22nd July, 1973. He also denied that in order to get the confession of the appellant he detained the father of the appellant till confession was made by the appellant.
On the point of the date on which the appellant had been arrested, the complainant P. Ws. Soomar, has stated that the appellant had voluntarily appeared before the Police on the third day of the incident. P. W. 7 Kirir stated in his cross-examination that he could not say when the appellant was arrested after the incident. On a question from the defence counsel the witness denied that he had stated in his lower Court deposition that the Police had arrested the appellant on the next day of the incident. In his statement before the Committal Magistrate, however, he had stated that the appellant had been arrested on the next day of the incident. In reply to another question he stated that he did not remember having mentioned in his lower Court deposition that the Police had detained the father of the appellant till the confession of the appellant was recorded. The fact, however, is that the witness did state in his statement before the Committal Magistrate that appellant's father was detained by the Police till the confession of the appellant was recorded.
10. At this juncture, while dealing with the question of admissibility of a retracted judicial confession we may refer with advantage to a passage from the judgment of the Supreme Court of Pakistan in PLD 1978 SC 21. At page 31 of the report of that case, the Supreme Court in para. 23 observed as follows :- "In Queen v. Thompson (1893) 2 Q B D 12) Cave, J. With his usual clarity had laid down some of the tests for the admissibility of the confessions in criminal cases. According to him a confession to be admissible must be free and voluntary. If it proceeds from remorse and a desire to make reparation for the crime it is admissible. If it flows from hope or fear excited by persons in the confessions has been obtained by the influence of hope or fear. The Judge will require the prosecution to show "affirmatively" to his satisfaction, that the statement was not made under the influence of an improper inducement, and who in the event of any doubt subsisting on this head, will reject the confession. He observed that "the rule laid down in Russal on crime is that confession, in order to be admissible must be free and voluntary, that is, must not be expected by any part of threats or violence, nor obtained by any direct or implied promises, however, slight, not by the exertion of any improper influence" and added that if these principles and reasons for them are, as it seems impossible to doubt, well founded, they afford to Magistrate a simple test by which the, admissibility of a confession may be decided. In conclusion Cave, J. Strongly suspected the retracted confessions, particularly when the proof of the prisoner's guilt is otherwise "not clear and satisfactory."
11. If a Judicial confession is obtained or extracted from an accused by any kind of threat or violence or by any direct or implied promises, or by exercise of any pressure or influence, such a judicial confession becomes inadmissible, however, slight the threat, violence, promise, pressure or influence may be in a particular case. If a doubt has been created in this regard, the Court should not hesitate in rejecting the confession, as the presence of any such factor would make the confession involuntary in law.
12. In the instant case there is evidence of P. W. 7 Kirir, one of the main witnesses of the prosecution, to the effect that the father of the appellant had been detained by the Police and he was freed when the appellant tendered his confession. In our view this circumstance by itself is sufficient to knock out the confession as there is an obvious implication that the appellant was promised that his father would be released if he gave a confession or that he was threatened that if he did not confess, his father would remain in custody. There is nothing on record to indicate that the appellant's father was in any way connected with the crime or that the Police required his presence for the purposes of investigation or for any other purpose, therefore, appellant's father was arrested, it would be for the purpose of putting pressure on the appellant of course the Investigating Officer denied that appellant's father had been arrested but in view of the evidence of P. W. 7 Kirir about the detention of the appellant's father, the possibility of the arrest cannot be ruled out. A doubt has been created. The judicial confession of the appellant becomes irrelevant in view of section 24 of the Evidence Act, 1872.
13. Then there is the doubt whether the appellant was arrested on the next day or he voluntarily surrendered on the third day of the incident as deposed by P. W. 7 Kirir and P. W. 9 Ismail, or that he was arrested on 22nd July, 1973 i.e. 11 days after the incident, as deposed by the Investigating Officer. These contradictions are very important as well as significant as three different dates depict three different periods of detention of. The appellant with the Police before his judicial confession is recorded. If the Investigating Officer is to be believed, the appellant was arrested on 22nd July, 1973 and was produced before the Magistrate for getting his confession recorded three days later i.e. On 25th July, 1973. If on the other hand P. W. Kirir or P. W. Ismail (the complainant) is to be believed, the appellant was arrested much earlier i.e. On 12th July, 1973 or 14th July, 1973 which would mean that the appellant remained in Police custody for a period over 11 or 13 days before his confession was got recorded and that the Police did not make correct entries in the Police record about the date of arrest of the appellant and, therefore, detained him illegally for a long period without obtaining remand from any Magistrate. Contradictions in this regard in the depositions of P. W. 7 Kirir and P. W. 5 Ismail and the Investigating Offcer raise further doubt about the voluntary nature of the appellant's judicial confession dated 25th July, 1973, and in our view this by itself, independently of the reason given in the previous paragraph of this judgment, is sufficient to make the judicial confession irrelevant and inadmissible.
14. There are other reasons and factors which have raised further doubts in our minds and these relate to the fact that Hashim was released by the Police in spite of his involvement by the complainant and Jam Suleman. Mst. Bibul, who is cited as an eye-witness is not examined as a witness. She was not only an eye-witness but the wife of the deceased. Bachoo, Umer and Ibrahim, mentioned in the evidence of the complainant and other witnesses are not examined but only closely related 3 eye--witnesses are examined. The Investigating Officer goes to the scene of the wardat in the morning on the day of the incident but he does not record the statement of any of the witnesses in spite of the presence of these witnesses there. Instead he records their statements on the next day. No reliance can be placed on the recoveries and the Chemical Examiner'" report as the blood-stained earth and the hatchet were sent for chemical examination nearly three years after their recovery and no explanation A whatsoever is on record about this inordinate delay of nearly 3 years. In view of the above factors and the infirmities and contradictions in the evidence of the prosecution witnesses and for the reason that judicial confession has been found to be inadmissible, the conviction of the appellant cannot be sustained.
In the circumstances, we set aside the judgment and sentence dated B 12th March, 1980 of the Sessions Judge, Dadu, in Sessions Case No. 372/76, and allow this appeal and refuse to confirm the