1. ' Ajmal Mian, J.-- The appellant Allah Bachayo Maree son of Moula Bux stands convicted under section 302, P.P.C. By the learned 1st Additional Sessions Judge, Hyderabad, through his judgment dated 30.9.1981 and has been awarded capital punishment of death. He has also been ordered to pay Rs, 3,000 as compensation to the legal heirs of deceased Ayoob and in default of payment to suffer R.I. For 6 months. The above appellant has filed the above appeal against his above conviction and sentence, whereas the learned Additional Sessions Judge, Hyderabad has made a reference to this Court for the confirmation of death sentence.
2. ' The relevant facts leading to the filing of the above appeal are that P.W.I Shahino lodged F.I.R. On 20th June, 1979 at 0300 hours under section 302, P.P.C. At the Police Post Umarsand, situated about 3 miles from the place of Vardat (i,e, in the courtyard of Otak of P.W.I Shahdino, village Soomar Mari Taluka Tando Allahyar) recorded in the Roznamcha Exh. 7, a copy of which was sent to the Tando Allahyar Police Station for incorporating in 154, Cr.P.C. Book Exh. 33, alleging therein that about 6 months ago his cousin Kadirdino's son Ayoob migrated alongwith his cousin Hazoor Bux from the village of Shah Baig and came and settled with him and became a Hari of Ghulam Nabi Shah and has cultivated cotton. It was further alleged that at about 2.30 a.m. Naubat and Hazoor Bux alongwith Ghulam Shah came to the complainant and told him that some one from the sharp side of hatchet inflicted blow to Ayub Mari in his sleeping position and ran away and that they we up on the snoring noise of the injured. It was further alleged that thereafter the complainant alongwith Allahdino and Ghulam came to the place of Vardat and saw Ayoob lying unconscious and bleeding and after a short while he expired. It was also stated that on their cries the other people of their village also came. It was further stated that on the sarzamin there was a naked footprint of one person, which they have got it covered but they have no suspicion against anyone.
3. ' It seems that according to the Mashirnama of arrest the present appellant was allegedly arrested on 24th June, 1979 at 1900 hours in presence of inter alia P.W.3 Arab, one of the Mashirs, under Mashirnama Exh.
4. 12.
2. The prosecution in support of the above case has examined P.W.1 Shahdino, the complainant, P.W.2 Hazoor Bux one of the persons, who was sleeping in the Otak where murder had taken place, P.W.3 Arab, a Mashir to the Mashirnama of the search of the house and seizure of the blood-stained clothes of the deceased, Mashirnama to arrest, Mashirnama to recovery of hatchet, Exhs. 11, 12 and 13, respectively, P.W.4 Dr. Syed Manzoor Ahmad Shah, who carried out post-mortem and prepared post-mortem report Exh.17, P.W.5 Muhammad Saleh, a Police Constable who carried the dead body to P.W.4 for post-mortem and for report, P.W.6 Haji Qabool, one of the alleged persons, to whom the appellant allegedly made extra-judicial confession, P.W.7 Jumo the other person before whom the appellant had allegedly made the aforesaid extra-judicial confession, P.W.8 Muhammad Ramzan, one of the Mashirs to the Mashirnama of Vardat Exh.26, inquest report Exh. 27, P.W.9 Haji Muhammad Jaffery, Assistant Commissioner and S.D.M. Tando Allahyar, who recorded the alleged judicial confession Exh.26, P.W.10 Haji Satabo, the Tapedar, who prepared the sketch of Vardat Exh.31, and Ali Murad, S. I. Who recorded the F.I.R. And also investigaged the case Exh .32. The prosecution has also produced the aforesaid Mashirnamas, inquest report, post-mortem report, sketch of the place of Vardat, Mashirnama of the torch produced by P.W.6 Haji Qabool Exh. 14, the judicial confession of the accused Exh.29, Mashirnama of blood-stained clothes of deceased Exh.
5. 34 and the Chemical Analyser's report Exh.
6. 35.
7. ' The appellant/accused in his statement under section 342, Cr.P.C. Before the learned Additional Sessions Judge has denied the factum of having committed the offence and has stated that he was falsely implicated because of enmity between him and P.W.6 Haji Qabool. It may be pertinent to quote hereinbelow the statement made by the appellant in this regard, which reads as follows:- "I have nothing else to say excepting I am innocent. I was Hari of Haji Kabool. I had insisted him on the dues outstanding against him sometimes before the incident. Huzurbux is connected with Kabool. Huzurbux resides at Tando Muhammad Khan. The police is on friendly terms with Kabool. I was arrested after 4 days of the incident, at 4 p.m., and I was taken to Tando Bago P.S. I was at Police Station for 8 days and thereafter I was taken in the Court of S.D.M. My father and brother were with me at the Police Station. I was feeling thirsty in the Court of S.D.M., therefore, the S.H.O. Had given me a glass of water which I had taken but I had vomitted. After vomitting I do not know what had happened to me but the S.H.O. Had obtained my L.T.I. On a paper. Then I was taken to sub-jail.
8. In the evening the persons who were detained in the jail had enquired from me and I told them that the police had obtained my L.T.I. On a paper. I have dispute with Haji Kabool over a piece of land therefore, he has deposed against me. P.W. Jumo is the cousin of Haji Kabool."
9. ' The defence has also examined D.W.1 Ilyas and D.W.2 Murid in defence.
10. 3.(a) P.W.4 Dr. Syed Manzoor Ahmad has deposed that on 20th June, 1979, he was the Medical Officer, Taluka hospital Tando Allah Yar, when he received the dead, body of Muhammad Ayoob son of Qadir Bux Mari, Baluch aged about 18 years, resident of Shah Baig Mari, Taluka Tando Allahyar through the P.C. Muhammad Umar of P.S. Umersand. He has further deposed that the body was identified by Qadir Bux, a brother of the decea.Sed and Allah Warayo an uncle of the deceased. He has also stated that he started post-mortem at 10 a.m. On the same day and finished the same at about 12 noon. He found the body a normal built and rigor mortis was present.
11. On the external examination, he found the following external injuries:- "1. An incised wound on the left side of neck, oblique in direction.
12. 3" away from the chin upto the back of left ear 41" x 3" x 4" cutting the hyoid, cutting the mandible bone and major blood vessels completely."
13. He opined that the injuries appeared to have been caused by a sharp-cutting weapon such as hatchet with broad blade. On internal examination, he found that major blood vessels of left side of head were cut off and in the abdomen small quantity of digested food, was present. He further opined that the death was due to shock and haemorrhage and that the injuries were ante-mortem and sufficient to cause death in the ordinary course of nature.
(b) P.W.1 Shahdino in his deposition has reiterated facts mentioned by him in the F.I.R. Referred to hereinabove. In his cross-examination, he has stated that Ayoob was resident of village Shah Baig which is 12 miles away from his village and that he was residing in his village since 6-7 months before the incident. He has further stated that there was matrimonial dispute between the deceased and P.W.2 Hazoor Bux.
(c) P.W.2 Hazoor Bux in his testimony has deposed that the deceased Ayoob was his cousin and that he also knew accused Allah Bachayo, who is also related to him. He has further deposed that before the incident, he had friendship with the accused and used to take meals together with him, but he left him (accused) and developed friendship with another relative Janu, and because of that accused became annoyed and asked him not to talk with Janu, but he continued his friendship with said Janu. He has further deposed that about 11 years back he and deceased Ayoob were Haris of Ghulam Nabi Shah and they used to reside in the Otak of complainant Shahdino. He goes on to state that on the night of the incident deceased Ayoob, Murid and Naubat were sleeping at the Otak, when he woke up at about 2 a.m. For urinating purpose and that while he was still awake, he saw accused Allah Bachayo armed with hatchet and within no time he inflicted a hat. Et blow to Ayoob, who was sleeping and thereafter he ran away, whom he identified in the moon- light. He has also deposed that accused Allah Bachayo present in Court is the same, who had given the hatchet blow to Ayoob and that in fact the accused had come to kill him as was confessed by himself. In his cross-examination, he has stated that he had broken the friendship with the deceased 3-4 days before the incident but no quarrel between him and accused had taken place during that 4 days. He has further stated that after urinating he was not in full sleep. He has also stated that the moon was about to set in and that the Otak was not encircled by any compound wall or hedge. He has further stated that the accused had not confessed before him that he intended to kill him. He has denied that he had any dispute with the deceased on some matrimonial affairs. He has admitted that Mitho Khan Mari is their nekmard and Khuda Bux Mari is his relative. He has further denied tha he had murdered Ayoob due to matrimonial dispute and that the accused had been falsely involved in the case. He has also stated that he had not seen the accused after the incident as he had absconded but he had seen him in police custody on the same day or next day at Tando Allahyar.
(d) It may be observed that except P.W.2 Hazoor Bux no other witness has deposed that they had seen the accused inflicting the injury to the deceased or that they had seen him running away after committing the above offence. The testimony of P.W.2 Hazoor Bux has been falsified not only by P.W.1 Shahdino but also by P.W.8 Muhammad Ramzan, one of the mashirs to the place of Vardat, who has deposed that at the place of Vardat P.W.2 Hazoor Bux was present alongwith other persons, who told him and to the other persons that they were unaware of the person, who had committed the murder. It may also be observed that on the day of incident 24th was the date of the lunar month, which fact falsifies the above witness's averment that he had seen the accused in the moon light.
14. ' The learned Additional Sessions Judge has discarded the evidence of the above witness. However, in order to record conviction against the present appellant, the learned Additional Sessions Judge has relied upon three pieces of evidence, namely, (i) extra-judicial confession allegedly made by the accused before P.W.6 Haji Kabool and P.W.7 Jumo, (ii) the recovery of the blood-stained hatchet from the hedge, (iii) retracted judicial confession.
15. ' In order to examine as to whether the conviction recorded by the learned Additional Sessions Judge on the above three pieces of evidence is sustainable or not we will have to analyse the above three pieces of evidence.
16. 4.(a) Referring to the above alleged extra-judicial confess on made by the appellant/accused before P.W.6 Haji Qabool and P.W.7 Jumo, it may be pertinent t refer to _their testimony. P.W.6 Haji Qabool has deposed that he knew the accused present in the Court and that about 17-18 months ago he and P.W.7 Jumo had gone to see their ailing relative Ilyas near village Umar Khashkheli. He has further deposed that after seeing Ilyas he and Jumo left for his village at about 2.30 a.m.
17. (night) on a mare and when they reached Mirabad minor at 2.45 a.m., they crossed Mirabad minor and had covered a distance of about one survey No,, they saw one person coming from the opposite direction. He has also deposed that he was on the front of the mare and therefore he flashed torch and identified that person was Allah Bachayo Mari the present accused armed with a hatchet. He goes on to state that he inquired from him as to where he was going at such odd hours, thereupon he replied that there had been a fight and so he was fleeing after inflicting a blow on him. He has further deposed that after hearing this from the accused, he advised him to go back to his village, otherwise his parents would be facing difficulty and thereafter they proceeded ahead. He has further deposed that on the next day, he came to know that one Muhammad Ayoob had been killed in the fight on the same night. In his cross-examination he has stated that the village of Ilyas is 10-12 miles away from his village and that they had gone to the village of Ilyas 5-6 days before that night. He has further stated that some women-folk of Ilyas were unwell and that they had no other work in that village. He has also stated that the place where they met the accused was about mile from the-village of llyas and that it was a dark night.
18. ' P.W.7 Jumo in his testimony has deposed more or less what has been stated by P.W.6. He has also deposed that the accused had disclosed the name of Ayoob with whom he had a fight and whom he had caused the hatchet blow whereas P.W. Haji Qabool in his deposition before the learned Additional Sessions Judge has not given any name. He has also stated that they had come to Ilyas village 5-6 days back to see the ailing members of Ilyas family and that their village is about 17-18 miles away from the village of Ilyas. (b) It may be observed that the testimony of above two witnesses before whom the appellant had made alleged extra-judicial confession is prima facie false. It may be pointed out that Haji Qabool (P.W.6) in his examination-in-chief has in clear terms stated that he and Jumo came to see their ailing relative llyas, whereas in his cross-examination he came out with the statement that some women-folk of Ilyas were unwell, whom they had come to see, whereas, P.W.7 Jumo in his deposition has stated that they had come to see ailing members of Ilyas family. It may also be stated that P.W.6 in his statement under section 164, Cr.P.C. Had stated that the appellant had disclosed the name of Ayoob with whom he had quarrel and to whom he had inflicted hatchet blow whereas in his deposition before the learned Additional Sessions Judge he has used the word, shim' to whom the blow was inflicted by the accused instead of giving the name of the deceased. Besides the above contradictions as to the purpose for which they had visited the village of their relative, the most improbable part of their testimony is that admittedly according to them they had come to the village in question about 5-6 days back from the date of the incident for the aforesaid purpose, namely, seeing their ailing relative Ilyas or some ailing women-folk of Ilyas or some ailing members of Ilyas family, but it is unbelievable that they would have left for their village at 2..30 a.m. In the morning on a mare for covering a distance of 17- 18 miles. If the above 2 witnesses had come to see Ilyas or his family about 5-6 days back, there is no probable reason shown as to why they had decided to leave at 2..30 a.m. On the fateful night, instead of leaving the village during the day time, particularly when they had no other work except to see ailing Ilyas or ailing members of his family. Furthermore, the defence has examined D.W.1 Ilyas who has belied the story of the above 2 witnesses by stating that the above 2 witnesses did not visit him at the relevant time. It may be observed that no cross-examination was directed against the above defence witness even to suggest that there was any other Ilyas than the person examined by the defence. In this 8 view of the matter no implicit reliance can be placed on the extra-judicial confession allegedly made by the appellant.
(5) Reverting to the second piece of evidence, namely, the recovery of the blood-stained hatchet which according to the Chemical Analyser's report Exh.35 had human blood-stained, it may be observed that this recovery is also very much doubtful. According to P.W.3 Arab the accused voluntarily led the police and to them to the hedge of the Otak and took out the hatchet therefrom.
19. This averment of the Mashir stands belied by the other evidence on record. P.W.2 Hazoor Bux in his cross-examination has stated that the Otak is not encircled by any compound wall or hedge.
20. Similarly P.W.8 Muhammad Ramzan who is one of the Mashirs to C the Mashirnama of the place of Vardat has depoped that the Otak is not surrounded by any hedge. Furthermore, P.W.3 Arab (the Mashir examined by the prosecution) admittedly resided about 10-12 miles away from the place of Vardat. It has also come on record that he was Hari of Khuda Bux who was a relative of the nekmard of P.W, Hazoor Bux who was admittedly hostile to the appellant. Furthermore, no explanation has been brought by the prosecution on record as to why the local inhabitants could not be made Mashirs to the recovery and, therefore, the provisions of section 103, Cr. P.C. Have been violated. For the foregoing reasons the recovery is to be discarded.
21. 6.(a) Referring to the retracted judicial confession, it may be pertinent to quote the same hereinbelow:- "My statement is that I am the resident of Sumar Mari village and do the work of Haryap. I was the friend of a boy named Huzurbux son of Juno Mari since the time of my infancy (childhood) who then migrated and settled in the village of Shah Baig Mari and now about 3 months back, we were ploughing for cotton cultivation that said boy named Huzurbux and his cousin Ayub (now deceased) who is the son of my father's cousin came and settled with us and used to cultivate the land. We had also cut and kept the wood sticks etc. For the purpose of constructing our houses there. They used to take meals etc. With us and their two 'pairs of bullocks and bullock-carts were parking with us here. I had friendly terms with Huzurbux and we used to remain with each other all the times. I was not taking meals till the return of Huzurbux from the fields. In this process I would have occasionally taken the meals at 2...30 hours of the day after his arrival. 8-9 days prior to the day of incident one of the villagers misguided Huzurbux who later on stopped talking to me. He then be friended Jan Muhammad the son of my maternal-uncle and this kind of his friendship I totally disliked. Not only this that whenever I ventured to go to village Mirabad then Huzurbux used to come there and throw the pieces of Bidis towards me and criticise me. On this I made him to understand 3-4 times but he used to turn a deaf-ear to what I used to instruct him in respect thereof. I used to get annoyed with him only when he and Jan Muhammad used to make fun of me unnecessarily without any fault of mine. They used to cut jokes with me in order to get me annoyed.
22. On account of this kind of attitude of theirs towards me I went to Khudabux the brother of Jan Muhammad and Kassim the brother of Huzurbux and doffed my cap and placed before them and requested theni to instruct Huzurbux to behave properly with me as he generally mocks at me and criticises me like anything but nothing happened. It is a talk of about 14-5 days back. I was compelled to make up my mind to commit the murder of Huzurbux with a hatchet blow in his sleeping position who used to sleep in our Otaq. On the night of incident at mid-night time, I took hatchet and went towards our Otaq. I already knew the place where Huzurbux generally sleeps on a cot near the tape towards the east. The night of incident was dark and Rilli was to some extent on his face and I kept standing from the eastern side and the deceased whose face was towards the west and then gave him a hatchet blow on his neck and then ran away and then heard cries from behind after going a little further. I did not know as to who cried out. When I reached the upper Shakh (branch) of our village, I saw Jumo and Qabool coming towards me and met me and they enquired from me as to where I was going at this time. I told him that I have given a hatchet blow to Huzurbux and he further added and said that he did not know whether he is dead or not. They instructed me that I was running away after giving a hatchet blow and after that I would get my parents dragged by the police and that they would face the troubles. On hearing this I came back to the place of Vardat where I saw all of them wakened-up and the lantern was burning. On my seeing I knew that Ayub the son of my father's cousin was dead, and Huzurbux was sitting. In fact I had no enmity with Ayub and therefore, I repented very much. But bearing this in mind I did not disclose to any one about this incident that I had committed this murder. I told myself to wait for the consequences. Then police came at the Vardat at night time and made enquiries. I was tethering my bullocks at that time when my cousin Wali Muhammad came there and told me that I was called by my uncle Shahan. I went there at his Otaq where police was sitting. I was asked by the Subedar whether I had committed that murder. I asked him as to who had told him that I have committed the murder. Subedar told me that this fact was narrated to him by Jumo and Qabool.
23. Then this fact struck to my mind and I thought that since the fact has been disclosed and God also knows everything. Hence I confessed and then nariated the entire facts to him which I have told you. I have been produced before you today. In fact I had had the grudge with Huzurbux who had troubled me and I had made up my mind to finish him up but due to mistake, Ayub was murdered who was then sleeping on the cot of Huzurbux on which generally Huzurbux used to sleep."
(b) It may be observed that Mr. Muhammad Hayat Junejo has referred to P.W.1.1 Ali Murad's admission in his cross-examination to the effect that after the confession of the accused was recorded, the Magistrate had given them his custody for taking him to the Sub-Jail Tando Allahyar.
24. It has been urged by him vehemently that the above judicial confession cannot be relied upon inter alia for the aforesaid reason. It may be observed that P.W.9 Haji Muhammad Jaffery the Assistant Commissioner and S.D.M. Tando Allahyar in his testimony has deposed that, he has given the custody of the accused to some other police personnels after recording his judicial confession.
25. Since there is a conflict between the testimony of the 1.0. And of the recording Magistrate, the benefit of doubt is to be given to the accused. We, therefore, cannot rule out the possibility of the fact that the custody of the accused was handed back to the 1.0. After the recording of the confession.
(c) It was next contended by Mr. Hayat Junejo that from the evidence on record, it seems that in fact the accused was arrested not on 24th June, 1979 as shown in the Mashirnama of arrest, but he was in illegal custody of the police without remand order a few days prior to the date of the arrest mentioned in the Mashirnama of arrest Exh.12. In support of his above contention he has referred to the testimony of P.W.2 Hazoor Rux, who in his cross-examination has stated that he had seen the accused in the police custody on the same day or on the next day at Tando Allahyar, from the date of the incident, whereas P.W.3 Arab in his cross-examination has stated that he thinks that it was second day of the incident when the hatchet was secured. On the basis of the above statements of the above 2 witnesses, it has been vehemently urged by Mr. Hayat Junejo that there is something on record, from which it can be inferred that factually the appellant/accused was arrested not on 214th June, 1979 but two or three days prior to the above date and, therefore, the appellant/accused was in the illegal custody of the police for more than 24 hours and hence the retracted judicial confession has no sanctity. It will suffice to observe that above contention is not devoid of force.
(d) It was also urged by Mr. Hayat Junejo that if the alleged extrajudicial confession is to be discarded, it would adversely affect the alleged judicial confession as they are closely linked and they formed two parts of one coherent whole.
(e) In support of the above contention Mr. Hayat Junejo has referred to the case of Mst. Maryam v.
26. The State, PLD 1961 Kar. 731, the case of Moharram v. The State, 1968 P Cr. L J 1550, the case of Khuda Bux and another v. The Crown, 1969 SCMR 390, the case of Wazir and others v. The State, PLD 1960 Kar. 674, the case of Hamzo v. The State, PLD 1960 Kar. 817, the case of Hakim Gul v. The State, PLD 1964 Pesh. 1 and the case of Muhammad Nasim Agha and another v. The State, 1978 P Cr. L J 579.
(i) With reference to the case reported in PLD 1961 Kar. 731, it may be observed that the learned counsel for the State appearing in the above case had urged that even if the extra-judicial confession was to be discarded there was judicial confession on the record which could have been relied upon. The above contention was repelled and it was held that the extra-judicial confession and its successor the judicial confession were closely linked together and formed two parts of one coherent whole and if the first fail, the same result must also affect the second.
(ii) Referring to the case reported in 1968 P Cr. L J 1550, it may be stated that in the above case some of the witnesses in their depositions had stated that the accused was in the custody of the police prior to the date of the arrest shown in the Mashirnama. Ahwarul Haq, J (as he then was) while dealing with the above question observed that "the benefit of these admissions has to go to the accused with the result that we must agree with the learned counsel that it is apparent from the record that the 2 appellants had been put under arrest on the morning of 28th of January, 1966 although the arrest was not shown on the papers until the 30th January of 1966". In view of the above admission on the part of the prosecution witnesses the alleged judicial confession was held not voluntary and was not relied upon.
(iii) As regards the case reported in 1969 SCMR 390, it may be mentioned that in the above case the Supreme Court was pleased to discard the alleged judicial confession for the reason that them statement indicated that it was tutored and the person making the confession was handed back to the police, who was investigating the case.
(iv) Referring to the case reported in PLD 1960 Kar. 674, it may be observed that a D.B. Of the erstwhile High Court of West Pakistan, Karachi Bench, comprising of Inamullah and S.A. Haq, JJ, held that if after recording of confession the accused has been delivered back to the police custody, the voluntary nature of the -confession is vitiated.
(v) Whereas in the case, reported in PLD 1960 Kar. 817, it was held by a D.B. That where a person before his confession was recorded had been in the police custody for 2 days without obtaining a remand and when no attempt was made by the prosecution to explain the illegal detention, the confession in the circumstances had the appearance of having beer, improperly obtained.
(vi) Reverting to the case reported in PLD 1964 Pesh. 1, it may be stated that in the above case also it was held that if the Magistrate before recording confession omits to inform the accused that he will not be sent back to the police custody but would be sent to the judicial lock-up, the voluntariness of the confession is to be doubted.
(vii) With reference to the case reported in 1978 P Cr. L J 579, it may be pointed out that in the above case it was held that if an accused person remains longer in police custody than what is permissible under S. 1614 and 3614 read with Federal Capital and Sind Courts Criminal Circulars, Part V, Chapter VI, rule 8 and if there was delay of 11 days in recording the confession without offering any convincing explanation as to the delay, such a confession is to be ruled out from consideration.
(e) From the above cited and discussed cases the following principles are deducible:-
(i) That there is nexus between an extra-judicial confession and a judicial confession. If either is to be disbelieved, it will adversely affect the other rendering it unreliable in the absence of some other independent corroborative piece of evidence from an unimpeachable source;
(ii) That if an accused is illegally detained for a few days without a remand order preceding to the recording of a judicial confession, the latter stanqs vitiated because of the aforesaid illegality; and
(iii) That if a Magistrate before recording a judicial confession does not inform an accused person that he would be sent through some other police personnel's to the judicial custody or he hands over the custody of an accused person to the investigating police after recording a judicial confession, no implicit reliance can be placed on such a judicial confession.
(f) In the instant case we have already held that alleged extra-judicial confession is not reliable at all and it seems to have been fabricated. In this view of the matter the exclusion of the extra- judicial confession would also adversely affect the credibility of the retracted judicial confession rendering it unreliable to record conviction or to be used as a piece of corroborative evidence.
27. Since P.W.11 Ali Murad (1.0.) in his cross-examination has admitted that the same police was given back the custody of the accused after recording of the alleged judicial confession, no implicit reliance can be placed on the same on that account. Furthermore, in view of the aforesaid admission made by P.W.2 hazoor Bux and P.W.8 Muhammad Ramzan, it cannot be ruled out that in fact the appellant was arrested a few days prior to the date of arrest shown in the Mashirnama of arrest. The accumulative effect of the aforesaid re-sons is that we are constrained to exclude the retracted judicial confession from consideration.
7. For the aforesaid reasons, we are inclined to hold that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. We, therefore, allow the appeal and order the release of the appellant henceforth unless he is required under any other case or under any other law. As a corollary to the above conclusion the reference made by the learned Additional Sessiols Judge is, therefore, rejected.