The appellant Zafar Ali aged about 25 years son of Salabat Ali caste Kharal of village Haibookewala, was tried by Malik Muhammad Afzal, the then Additional Sessions Judge, Sheikhupura, under section 302, P. P. C. For causing murder of his mother Mst. Fatima Bibi about 8,110 days prior to 10th June. 1977, within the area of village Haibookewala and also under section 201, P. P. C. For causing the disappearance of the evidence of murder by throwing the dead body of the deceased in the river. By his judgment dated 29th September. 1979 the learned trial Judge convicted the appellant under sections 302 and 201, P. P. C. He sentenced the appellant to imprisonment for life and a fine of RS. I.000 or in default to, suffer imprisonment for one year under section 302. P. P. C. While under section 201, P. P. C. The appellant has been sentenced to 3 years' R. I
2. The appellant has challenged his conviction and sentence through the present appeal.
3. Briefly stated, the prosecution version as transpires from the contents of the F. I. R. Exh. P. D. Is that on 10th June, 1977 at about 8;9 00 a. m. Atta Muhammad Lambardar (P. W. 6), the complainant happened to be present at his Dera that some boys of the village approached the Lambardar and told him that within the area of his village in a Dhan (pond) of river Ravi, a dead body of human being was floating on the surface of the water. The Lambardar accompanied by Peera (P. W. 1).
Hidayat (P. W. 2), Nosha (P. W. 3), and one Shah Muhammad went to the Dhan and found a dead body floating on the surface of' the water near the bank. This was a headless dead body of a female. Atta Muhammad Lambardar and his aforesaid companions identified the dead body to be that of Mst. Fatima deceased with the help of the clothes worn by it.
4. About 6 years earlier Msr. Fatima deceased had eloped with one Shafi Jolaha (weaver). Her husband Salabat and her brother Amir remained in search of the said Shall and Mst. Fatima. About 20/25 day; prior to this occurrence, Salabat aforesaid and Zafar -cant brought Ust. Fatima deceased to the village. Atta Mohammad lambardar suspected that Mst. Fatima deceased was murdered by her son Zafar, her husband Salabat and her brother Amir as she was responsible for their insult for having eloped with a weaver. The Lambardar left his companions at the place where the dead body was spotted and he himself proceeded towards the Police Station. On his way to the Police Station, he met Muhammad Anwar A.S.I. (P. W. 7). Atta Muhammad lambardar made statement Exh. F. B. Before Muhammad Anwar A. S. 1 who recorded the same to his dictation.
5. Muhammad Anwar sent statement Exh. P. B. To the Police Station, Syedwala for registration of the formal F.I.R. He himself went to the spot. He prepared the Injury Statement Exh. P. E. And inquest Report Exh. P. F. In respect of the dead body. He also secured blood-stained earth from near the Dhan and sealed the same into parcel vide memo. Exh. P. G. He despatched the dead body to the mortuary at Nankana Sahib for autopsy. Subsequently, the investigation was handed over to Muhammad Yaqoob S. I. (P. W. 10).
6. After the post-mortem examinction Qadii Bakhsh F. C. Produced shirt P. I, pitcher P. 2, and rope P.
3, which were secured into Police possession by Muhammad Yaqoob vide memo. Exh. P. A. The appellant was arrested by Muhammad Yaqoob on 12th June, 1977. On the same day blood-stained hatchet P. 4 and Chadar P. 5 were recovered at the instance of the appellant from his house. These articles were taken into possession vide memo. Exh. P. C.
7. On 20th June, 1977 the appellant Zafar was produced by this witness before Ch. Abdul Ghafoor, the then M.I.C., Sheikhupura, (P. W. 8) and submitted the application Exh. P. J. For recording the confessional statement of the appellant, consequently, after observing the necessary formalities Ch. Abdul Ghafoor recorded the confessional statement Exh. P. K. Of the appellant.
8. From the above resume of facts, it becomes evident that the prosecution case against the appellant is based on (i) judicial confession, (ii) recoveries and (iii) other circumstantial evidence such as medical evidence and identification of dead body etc.
9. So far as judicial confession Exh. P. K. Is concerned, Ch. Abdul Ghafoor M. I. C. Before recording the confessional statement of the appel--lant observed all the requisite formalities to ensure that the confessional statement was being made voluntarily. The appellant, however, retracted from this confession at the trial and contended that his confessional statement was obtained as result of torture and inducement etc. It is noteworthy that the appellant was remanded to the judicial lock- up on 13th June, 1977. He was produced for recording his confession before Ch. Abdul Ghafoor on 20th June, 1977. There is nothing on the record to suggest as to under what circumstances Muhammad Yaqoob S. I. Came to know that the appellant while in Jail desired to have his judicial confession recorded. Muhammad Yaqoob in his cross-examination has admitted that he did not receive any intimation to this effect from the Jail Authorities. There is nothing on record either to show as to under what authority Muhammad Yaqoob S.I. Obtained the custody of the person of Zafar appellant from the Jail Authorities and produced him before the Magistrate for recording his confessional statement. So far as corroborative evidence is concerned, hatchet P. 4 and blood- stained Chadar P. 5 are alledged to have been recovered from the appellant at his instance vide memo. Exh. P. C. This memo is attested by Atta Mohammad Lambardar (P. W. 6) and Noor (P. W. 4).
Both these P. Ws. Categorically stated that Zafar appellant never got recovered blood-stained hatchet or blood-stained Chadar in their presence. These witnesses were declared hostile and cross-examined but in vain.
10. Autopsy on the dead body recovered in the manner indicated above was performed on 11th June, 1977, by Dr. Abdul Razzaq, the then Medical Officer, Civil Hospital, Nankana Sahib. He is said to have gone to Libya. He has, therefore, not been examined. Post-mortem report Exh. P. N. And the diagrame indicating the location of injuries Exh. P N/I have been got formally proved with the help of the statement of Sardar Ali, Dispenser (P. W. 11) who remained posted under the aforesaid Dr. Abdul Razzaq.
11. The dead body, according to post-mortem report, was identified to be that of Mst. Fatima Bibi before the doctor by Atta Muhammad and Fazal. Atta Muhammad while appearing as P. W. 6 denied this identification and stated that he could not identify the dead body as it was headless.
Fazal has not been produced at the trial. The Medical Officer according to the contents of Exh. P. N.
Noticed an incised wound 2" x ----- x ----- on the medial side of the right leg 3" above the anckle- joint and further found that the head was imputed and missing.
12. In the opinion of the doctor, the deceased had died of severe shock and heamorrhage on account of injury No. 2 which was sufficient to cause death in the ordinary course of nature. Both the injuries were opined to have been caused by sharp-edged weapon and to be anti-mortem.
13. According to the confessional statement, the death purports to have been caused by strangulation but the medical evidence does not furnish any such indication. Besides, Atta Muhammad P. W. 6 and Noor P. W. 4, the other P. Ws. Namely P. W. 1 Peera, P. W. 2 Hidayat and, P. W.
3 Nosha also did not support the prosecution case. They were declared hostile and invainly cross- examined.
14. The retracted judicial confession of the appellant, in the circumstances, does not find any corroboration whatsoever from the medical evidence, recoveries, or other circumstantial evidence.
15. As already observed, the appellant was arrested on 12th June 1977, but he was produced for recording Juuiciat confession on 20th June 1977 i.e. About 9 days after his arrest. In Tooh v. The State (1975 P Cr. L J 440) confession recorded on 3rd day of the arrest of accused was ruled out of consideration and it was observed that a delay over 24 hours in recording the confession would normally be fatal to the acceptance of a judicial confession. In Fazal-ur-Rehman v. The State (PLD 1960 Pesh. 74) it was ruled that a retracted confession was never regarded sufficient for conviction and it required corroboration by extraneous independent evidence.
No such independent corroboration, however, is forthcoming in the instant case. 1n Khaista Muhammad v. The State (PLD 1978 Pesh. 116) it was laid down that when prosecution witnesses were disbelieved it followed as a necessary cortollary that retracted confession was exorted from accused under duress unless accused led to recovery of incriminating articles. In B the case in hand, the prosecution witnesses have totally restled from the statements made before the Police.
No recoveries has either been proved. The retracted confession was recorded in unusual circumstances about 9 days after the arrest of the accused in clandestine manner when he was in judicial lock-up. No value can, therefore, be attached to the retracted judicial confession alleged to have been made, by the appellant.
16. In view of the foregoing discussion, it is concluded that there is no incriminating material on the record justifying conviction of the appellant under section 302, P.P.C. Or section 201, P. P. C. His appeal C is, therefore, allowed, his conviction and sentence are set aside and he is acquitted. He shall be released forthwith, if not required in any other case.