1. MUNAWAR An KHAN, J.-The appellant Abdul Haleem and co. Accused Muhammad Murad were tried on the charge of murder and were convicted under section 302/34, P. P. C. And sentenced to life imprisonment and tine of Rs, 1,000 each or in default R.I. For one year vide judgment dated 1st July, 1979 of the Additional Sessions Judge, Shikarpur. By this appeal, the convict Abdul Haleem has called in question the correctness of his conviction but no appeal has been filed by co-accused Muhammad Murad. While admitting the appeal of Abdul Haleem, suo motu notice was issued to him to show cause why the sentence awarded to him should not be enhanced. We propose to dispose both the appeal and revision by suo motu notice by this common judgment.
2. After hearing arguments of Mr. Ghiasuddin Baloch in support of the appeal and of Mr. Zawwar Hussain Shah, Asstt. A.-G. On behalf of State, the appeal was accepted and both the accused Abdul Haleem and Muhammad Murad were acquitted and suo mow notice issued to the accused was discharged by a short order, dated 6th November, 1983 for reasons to be recorded separately.
3. Following are the reasons in support of the said order.
4. This case arose from the murder of one Rashid Ahmad, elder brother of Saeed Ahmad, who has lodged F. I. R. In this case on 18th August, 1976 at 9-30 p. m. At Police Station, Stuart Ganj, Shikarpur.
5. The F. I. R. Reads as follows :- "Rashid Ahmad was my elder brother. He was aged about 70/75 years, and was bachelor. He was residing in his house separately, which is near my house. He used to take meals with us. That house was evacuee property. The house is comprising of two storeys, My brother Rashid Ahmad was residing in its lower portion and in the upper portion was residing Muhammad Murad son of Wali Muhammad Marfani since last 10/12 years and it was in his possession. As a result of last heavy storm, some portion of the house had fallen down. I was getting the same repaired. Today in the evening, at about 6-00 p. m., the labours completed the work of the house and went away. At that time I did not find my brother Rashid Ahmad present in the house. At about 9-00 p. m., I, my son-in- law Baboo son of Zameer Hussain and other inmates of the house were sitting in the house when Murad Marfani called me from down and told me that my brother Rashid Ahmad is lying murdered in his residential house. On having these facts from Murad, I and my son-in-law Baboo and neighbours namely Muhammad Jan son of Wali Jan Pathan, Baz Khan son of Haider Khan Pathan went up into the house of Murad and found that there was blood on the coverlet and quilt of the bed in the bedroom of Murad and shirt of the deceased was lying on the same bed. We saw in the inner-room and found that the dead body of brother Rashid Ahmad was lying there. His neck was cut and had profusely bled. One kitchen-knife was lying near the dead body. Thereafter we came down into the bedroom of the deceased and found that his waistcoat was lying near his cot on which he used to sleep. Room of the deceased was locked from outside and the door was closed.
6. Finding these circumstances, I left the above-witnesses at the dead body and have come here to lodge report. House of deceased and house of Murad have been purchased by Abdul Latif refugee.
7. Residing of Lakhi Gate, Shikarpur. I lodge report that it is possible that Murad Marfani has murdered my brother or has got him murdered with intention to occupy his house. I lodge report. Action be taken."
8. After recording the F. I. R. The A. S.-I. Abdul Zubair inspected the scene of offence in presence of mashirs Alley Hussain and Muhammad Ismail. He noticed at the vardat that the dead body of deceased Rashid Ahmad was lying in the courtyard of the house of co-accused Muhammad Murad. The A. S.-I. Took into his possession the blood-stained Chhuri and blood-stained earth from the vardat. He recorded statements of Muhammad Jan, Baz Khan and Baboo. On 23rd August, 1976, the A. S.-I. Arrested accused Muhammad Murad from his house in presence of mashirs Muhammad Ashraf and Muhammad Nazir under memo. (Exh. 10). This accused volunteered to produce a bundle of clothes which he took out from the roof of his house and produced the same before the A. S.-I. The bundle contained one coat, one loin cloth, one shirt and a pair of chapals. All these articles were bloodstained and the A. S.-I. Secured the same under memo. (Exh. 11). On 26th August, 1976, the A. S.-I. Arrested accused Abdul Haleem in presence of mashirs Abdul Majid and Shahzado vide memo. (Exh. 13). The accused led the A. S.-I. To the graveyard near Kiri of Nawab Khan and took out from the ground under a Khabar tree one waistcoat and one loin cloth, both stained with blood and produced the same before the A. S.-I. The said articles were taken into possession by the A. S.-I. Under memo. (Exh. 14) in presence of the same mashirs in whose presence the accused was arrested. The accused Abdul Haleem was produced before the Civil Judge and F. C. M., Shikarpar for the confession on the same day of his arrest. After completion of the due investigation, both the accused were placed on trial.
9. Dr. Gul Hassan (P. W. 6) of R. B. U. T. Hospital, Shikarpur conducted the autopsy of the dead body of Rashid Ahmad and found the following injuries on his person :-
(1) An incised wound 6" x 4" x all anterior structures of the neck deep on the front of neck.
(2) An abrasion 2" x" on the right knee joint.
(3) Fracture of the right hip joint.
10. In the opinion of the doctor, the death of the deceased was the direct result of shock and haemorrhage produced by the aforesaid injuries. He further opined that injuries were antemortem and the injury No, I individually and all the injuries collectively were, in ordinary course of nature sufficient to cause death. The factum of the deceased having died of the injuries found on his person has not been disputed by the accused. Thus, it is established from the medical evidence that the death of deceased Abdul Rashid was caused by the injuries he had sustained.
11. The crucial point to be determined is whether the accused or any of them had inflicted the fatal injuries on the deceased. To prove this point the prosecution have relied upon evidence of motive, recovery of bloodstained clothes and jdicial confession of accused Abdul Haleem.
12. As for motive, the learned trial Judge has observed "Prosecution has not brought the clear evidence on the point of motive except through brother (of deceased) Saeed Ahmed". Perusal of the statement of Saeed Ahmed (P. W. I) would show that the witness has not clarified as to what prompted the accused to have turned against the deceased so much so that they did not hestitate even to take his life. All that he has stated is that the house where the deceased was living is divided into two portions : one on the ground floor was in occupation of the deceased and the other on the upper floor was in possession of accused Muhammad Murad. He has further added that his brother (deceased) was insistent that accused should vacate the house. It is further stated by him that the parties had dispute over money matters. Obviously this sort of statement cannot be held to prove any motive against the accused. However, a reference to the F. I. R. Would show that the house shared by the deceased and co-accused Muhammad Murad had been purchased by Abdul Latif, a resident of Lakhi Gate. It is. However, not clear from the F. I. R. Or from the statement of Saeed Ahmed that the said house was the property of the deceased or that Abdul Latif had purchased the same from him. Even Abdul Latif has not been produced in evidence to throw light on the parties, quarrel over the house. Saeed Ahmed has also not elaborated his statement with regard to the dispute between the parties over financial dealings. Thus, the evidence of motive, as has been rightly pointed out by the learned trial Judge is very vague. It hardly provides any clue to root cause of the occurrence.
13. Next comes the judicial confession of accused Abdul Haleem on which the entire prosecution case hinges. In fact this piece of evidence is going to decide the fate of the case. The operative part of the confession reads as under :- "About one year back, I had borrowed Rs, 400 from the deceased. He used to demand from me.
14. About two weeks back, deceased Rasheed complained to my father, which irritated me. One by name Murad, who also residing in the house of deceased Rasheed and Rasheed used to ask Murad to vacate the house upon which Murad used to refuse, and he used to say that he will not spare Rasheed. There will be no Rasheed to ask him for house. One day prior to the incident, Murad came to me and told me let us go and fight with Rasheed. As I was displeased with Rasheed, therefore, I accompanied Murad, went to Rasheed. We found that Rasheed was sitting outside his house.
15. Thereafter, Murad told Rasheed that he should go upstairs as there was work with him. Rasheed went upstairs, I and Murad also went with him. Murad told Rasheed in verandah that he should put- off his clothes and laydown, so that he may massage him. Upon this Rasheed put off his shirt and laid. Down. Thereafter Murad told me to catch hold Rasheed from his feet. I caught Rasheed from his legs and Murad slaughtered Rasheed from his neck. Rasheed died. Thereafter he told me to go away. Then I went away."
16. While expressing his dissatisfaction with confession the learned counsel for the accused has contended that it has been recorded in utter disregard of the mandatory requirements of law and as such it can neither be called voluntary nor true. According to the learned counsel the accused Abdul Haleem who is a boy of 16 years, was most likely to have been persuaded by police by coercion, inducement or torture to give the confessional statement. He also expressed the view that the learned trial Judge has erred in replying on retracted confession without insisting on corroboration in material particulars.
17. It appears from the School Leaving Certificate (Exh. 31) produced on behalf of the accused Abdul Haleem that his birth date is 13th March 1962. Thus, he was hardly 14 years on the day of occurrence. Accordingly we are inclined to agree with the view that the accused B of his age could easily be duped to give statement as was tutored to him by police. In the case of this nature, the learned Magistrate had to be extra-cautions in recording the confession of the accused of his age.
18. He had to make sure that accused had given the confessional statement under absolute freedom without any pressure or coercion having been brought to bear upon him for giving the said statement. We have gone through the evidence of the learned Magistrate, Mr. Mahmood Ahmad P.
19. W. With meticulous care. The first thing that has struck us is that the time given to the accused for reflection was not at all adequate. As has been disclosed in the evidence of A. S.-I. Abdul Zubair (P.
20. W.11), the accused Abdul Haleem was arrested on 26th August 1976, at 6 a. m. According to the learned Magistrate the accused was produced before him on the same day at 10-00 a. m. Thus, it is clear that police had rushed through with recording of the accused's confession, as he was produced for the confession after hardly 4 hours had elapsed from his arrest. There is nothing to indicate that accused's lawyer or any of his relatives had any access to him during the interval of his detention in police custody. The statement of the learned Magistrate shows that the accused was given 1-45 hours for reflection before his confession had been recorded. We are of the view that in the circumstances of the case, the time given to the accused for pondering was most insufficient. In this respect our view has been fortified by the Indian authority relied upon by the learned counsel for the accused reported as Sarwan Singh Rattan Singh v, State of Punjab wherein it was observed :- "It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused-person in any given case.
21. However, speaking generally, it would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded."
22. The next objection of the learned counsel for the accused with regard to confession is that mandatory legal requirements are not complied with by the learned Magistrate while recording the confession. In this connection he has contended that although the accused is Urdu-speaking, the confession has been recorded in Sindhi and there is no certificate by the learned Magistrate to the effect that the confession was read over and explained to the accused in Urdu, the language that he speaks and understands. It is further submitted by the learned counsel that in order to erase the fear of police from the accused's mind, it was incumbent upon the learned Magistrate to have assured him that he would not be handed back to the same police. However, according to the learned Magistrate, no such assurance had been extended to him. His further contention was that the learned Magistrate had put no question to the accused ascertaining from him if he had been subjected to maltreatment by the police. In the opinion of the learned counsel the absence of such evidence reacts on the voluntary character of the confession.
23. We have minutely gone through that text of the confession and so also the statement of the learned Magistrate who had recorded confession. It is true that there is no trace of the evidence to indicate that the confession was read over and explained to the accused in Urdu. It is admitted by the learned Magistrate that no question was put by him to the accused with regard to maltreatment. However, contrary to his statement in Court, we have come across an assertion in the confession that the accused's body was examined with his consent but there was no mark of violence. Since the learned Magistrate has made a categorical denial that any question about maltreatment was put to the accused, the aforesaid entry which appears in printed form, is in our opinion of no consequence.
24. The learned Magistrate has further admitted in course of his cross-examination. "I have not shown in the body of the form that he will not be remanded to police custody but............" It seems, he had not consulted the form before giving such reply. The form of confession shows that the learned Magistrate had assured the accused that he would not be remanded to police custody, whether he1 made the confession or not and that h would be remanded to judicial custody. In view of the conflict between his statement on oath in Court and the text of the confession it would be safer to presume that his statement in Court which is on oath is correct. This is so for the additional reasons that the whole text of the confession is in printed form excepting its operative part which has been reproduce above and the questions put by the Magistrate and the answers given by the accused which are written in hand. Since the assurance extended t the accused that he would not be remanded to police custody forms a part of the printed material of the confession, it would not by itself prove that the said assurance had actually been given to the accused particularly when the learned Magistrate has in his Court's evidence, stated to the contrary. From the above discussion, we are convinced that mandatory legal requirements have not been strictly followed by the learned Magistrate while recording the confession of the accused.
25. At this stage, it may be pertinent to refer to the above reported Indian case in which while commenting upon non-compliance of subsection (3) of section 164, Cr. P. C. The Supreme Court of India has made the following observations :- "It is hardly necessary to emphasize that the Act of recording confessions under section 164, Criminal Procedure Code is a very solemn act and, in discharging his duties under the said section, the Magistrate must take care to see that the requirement of subsection (3) of section 164, are fully satisfied.
26. It would of course be necessary in every case to put the questions prescribed by the High Court circulars but the questions intended to be put under subsection (3) of section 164 should not be allowed to become a matter of a mere mechanical enquiry. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary.
27. The whole object of putting question to an accused-person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement threats or promise having reference to the charge against the accused-person as mentioned in section 24 of the Indian Evidence Act."
28. The next authority relied upon by the learned counsel for the accused on the same point is the case of Hakeem Gul v. The State wherein it was held :- "It is, therefore, clear that in this case the Magistrate had not informed the appellant that he would not be sent back to the custody of the police and instead would be sent to the judicial lock-up, and, therefore, it is extremely doubtful if the confession was voluntary, and was not made under duress."
29. The third case in the line is of Dhani Bux v. The State wherein the Supreme Court was pleased to observe thus :- "The whole object of legal and judicial insistence on the meticulous observance of all the necessary formalities and precautions laid down, with minute particularity is to ensure that the confessional statement should be absolutely free from the slightest tinge or taint of extraneous influence such as threat, promise or inducement and the Courts are placed under an obligation to affirmatively satisfy them-selves that it is free and voluntary."
30. The fourth case to which reference has been made by the learned counsel for the accused is of Dost Muhammad v. The State in which the Divisional Bench of this Court took the view that since the confessional statement was recorded in Urdu language whereas accused was Sindhi speaking and there was nothing to show that such statement was read over and explained to the accused in Sindhi language, the confession was recorded in routine manner without observing necessary legal formalities.
31. The view that crystallises from the above authorities is that Courts must look for strict compliance of subsection (3) of section 164, Cr. P. C. Before proceeding to determine the voluntary character of the confessional statement. It has been noticed that the Magistrates who are charged wit a duty of2 3 4 recording confession do not take the process of recording confession seriously with the result that they invariably act in mechanical way without applying their mind as to the legal prerequisites to be observed and the manner in which their compliance is to be made. It is high time that we should reiterate the procedure which is followed in recording con session for their guidance.
32. Magistrate would be well advised to follow the procedure which is given below :-- "As soon as accused is produced for confession, his handcuffs should be removed and all the police officers should be turned out from the Court room. Thereafter, the accused should be informed tha he is before a Magistrate and whether he made any statement or no he would not be given back to the police who had produced hi before Court but would be remanded to judicial lock-up. He should then be given sufficient time to ponder over the matter. Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. The following questions should be put to him :-
(i) For how long have you been with police ?
(ii) Has any pressure been brought to bear upon you to make con fession ?
(iii) Have you been threatened to make confession ?
(iv) Has any inducement been given to you ?
(v) Why are you making this confession ?
(vi) Have you been maltreated by police ?
33. After recording the accused's answers to the above questions, if th Magistrate is satisfied that he is making confession voluntarily, he woul then put such questions to him, as are given in the printed form and then he should proceed to record his confession in verbatim.
34. Apart from the defects that have been pointed out above in the confession, the accused has retracted from the confession. It is now well-settled that rule of prudence requires that retracted confession should not be acted upon and be made the basis for conviction unless it is corroborated in material particulars. According to the learned counsel for the accused, no corroboration worthy of mention has been brought by the prosecution in support of the retracted confession. It was pointed out to the learned counsel that the circumstances in which the dead body was found by the police were obviously in consonance with the accused's version of the incident given in the confession and as such the confession could be held to have been corroborated by the said circumstances. In reply the learned counsel drew our attention to the case of Hakeem Gul of Peshawar High Court referred to above and made a pointed reference to the observations which are pertinent to the point raised in course of arguments. The observations are as under :- "The circumstances pointed out by the learned Additional Sessions Judge in para. 10 of his judgment to serve as corroborations of the retracted confession of the appellant by no means can be considered as corroborations in the eye of law. The circumstances suggested by the learned Additional Sessions Judge are such that they were all in the know of the police before he had surrendered. These circumstances, therefore, could be tutored to the appellant before he was persuaded to confess his guilt before the Magistrate."
35. Since the accused was produced for confession after the police had visited the verdant and found the dead body in the circumstances referred to above, there was no doubt that the said circumstances were within the knowledge of the police when they had produced the accused for the confession. Accordingly, we are in agreement with the view expressed by the Peshawar High Court that the said circumstances could not be held to have corroborated the confession.
36. The next piece of evidence is the recovery of blood-stained clothes at the pointation of accused Abdul Haleem. The recovery was made in presence of mashir Abdul Majid. Both the said mashir and A. S.-I. Abdul Zubair have proved the recovery by their evidence inasmuch as that after the accused was arrested, he led them to the graveyard near the office of mukhtiarkar, Shikarpur and dug out from the ground one waistcoat and one loin-cloth, both stained with blood. According to them, they said clothes were taken into possession by the A. S.-I. And made a sealed parcel of the same. It appears that the confession is wholly silent as to the aforementioned recovery.
37. Consequently, it cannot be held to have lend any corroboration to the confession. In case the evidence of recovery is judged independently of the confession, it proves nothing against the accused, excepting that he had knowledge that the aforesaid clothes were buried in the graveyard. Even otherwise the said clothes were not sent to the chemical analyser and as such chemical report is not there to prove that the clothes were stained with human blood. There is no other evidence against the accused Abdul Haleem. We are of the considered view that in the circumstances pointed out above it would not be safe to rely upon the confession. With its exclusion from the consideration, there is no other evidence to link the accused with the commission of the murder.
38. So far co-accused Muhammad Murad is concerned, the main evidence on which his conviction has been based is the confessional statement of co-accused Abdul Haleem. Since the said confession has not been believed in respect of its maker, it cannot be used and made basis for the conviction of the co-accused. There is no other evidence against co-accused Muhammad Murad, excepting that he had taken out bundle of bloodstained clothes from the roof and produced the same before police. As stated above, the clothes were not sent to the chemical analyser and, therefore, there is no report of the expert to show that the clothes produced by the accused were stained with human blood. Further, evidence that he had gone to the complainant .Saeed Ahmad and informed him that the dead body of the deceased was lying in his house does not itself prove that he had committed the murder of the deceased. On the contrary, it can be argued that had he committed the murder, he should not have informed the deceased's brother in the said manner.
39. Accordingly, there is no case even against co-accused Muhammad Murad.
40. In view of above discussion, the prosecution has failed to prove that the above two accused were guilty of the murder of Rashid Ahmed. Accordingly they have been acquitted as stated above. PLD 1957 SC (Ind.) 555 PLD 1964 (( W. P.) Pesh. 1 PLD 1975 SC 187 PLD 1982 Kar. 1000