' Nasir Aslam Zahid, J.--In Sessioris Case No, 173/74, the Ex-Officio Vth Additional District Judge, Karachi, by his judgment, dated 11th December, 1979 convicted the appellant Nazeer Hussain son of Muhammad Husain under section 302, P.P.C. For the murder of his uncle Mir Zaman and sentenced him to death. The case has come up for confirmation of the death sentence before us as well as for hearing of the appeal filed under section 410, Cr.P.C. By the appellant against the said conviction and sentence.
2. Briefly the facts of the present case, as per F.I.R. Lodged at 10 a.m. On 20th June, 1973 at Police Station Gulberg, Karachi, by complainant Hasan Zia (P.W.2) are that on the same day, that is 20th June, 1973 at about 9-30 a.m. When the complainant reached the Internal Laboratory and Studio, where he was employed as an engineer. Block 22 Federal B. Area, Karachi, the appellant/accused, who was employed as a Chowkidar there, opened the gate for the complainant and Mir Zaman, who was also working as a Chowkidar in the same studio, by hitting him with a stone. It is further stated in the F.I.R. That on inquiry of the complainant, the appellant stated that after office hours the previous evening, the deceased had abused the appellant without any fault on his part. The complainant then went inside the studio and found the deceased lying dead on a cot with injuries on his head.
3. There is no eye-witness in this case and the prosecution evidence, on the basis of which the trial Court convicted the appellant, is as follows:-
(a) Judicial confession, dated 27th June, 1973 recorded by P.W.1 Mr. Anwaruddin A.C.M. Court XVIII, Karachi. This judicial confession was retracted by the appellant, but the same has been accepted by the trial Court and made the basis of conviction of the appellant.
(b) Extra-judicial confession of the appellant before the complainant, P.W.2 Hasan Zia, P.W.4 Abdul Rauf and P.W.7, Mahmood Kazi.
(c) Recovery of the blood-stained stone and clothes of the deceased and the appellant.
4. We have heard Mr. Nazir Ahmad Siddiqui, learned counsel for the appellant, and Mr. Ghulamally Agha, learned counsel who represented the State. The main piece of evidence, on which the conviction of the appellant has been placed, is his judicial confession, dated 27th June, 1973 (Exh.4) and it was very vehemently argued by learned counsel for the appellant that the said judicial confession was not admissible and ought to have been ignored by the trial Court. It was further urged by Mr. Nazir Siddiqui that if the judicial confession was removed from the evidence on record, the conviction of the appellant cannot be sustained. Mr. Ghulamally Agha, learned counsel appearing for the State, agreed with this contention of the learned counsel for the appellant that in case the judicial confession was not admitted, the conviction against the appellant will not be sustainable in law.
5. It is an admitted position that the appellant has been arrested in the morning of 20th June, 1973 whereas his judicial confession was recorded On 27th June, 1973 i,e, seven days later. There are various judgments of our superior Courts holding that if delay takes place in the recording of the judicial confession and the accused has remained in police custody, the judicial confession becomes susceptible to doubt and normally would not be accepted by the Courts if the judicial confession is retracted by the maker. The basic reason behind this proposition is that if a person is arrested in respect of a crime and he is ready to make a judicial confession, he should be taken expeditiously before a Magistrate for recording the confession and in case he remains in custody for some length of time before he is taken for the recording of the judicial confession, a doubt may arise that the confession has been obtained from the maker under pressure or inducement from the police, or otherwise the accused would have come forward to get his confession recorded immediately after his arrest. In some cases, more than 24 hours delay has been held to be fatal as far as the admissibility of the retracted judicial confession Is concerned, whereas in other cases even a longer period has not been considered fatal.
6. We may here refer to certain reported judgments cited before us.
In the case of Mst. Mariam v. The State PLD 1961 Kar. 731, a Division Bench of this Court had held that the judicial confession recorded after 8 days was not a voluntary confession. In the said judgment it was observed as follows:- "In the instant case although there is no question of illegal detention, yet the fact that the confession was recorded 8 days after the incident, and admittedly more than 24 hours after the arrest of the accused, makes it difficult for us to rely upon this judicial confession."
' In the case of Fazlur Rehman v. The State PLD 1960 Pesh. 74, a Division Bench of the Peshawar High Court was of the view that in the recording of the confession circumstances may justify a brief delay, but not a long delay, which, if not explained, invariably leads one to infer that all that time was utilised in extracting confession from the confessor. In that case it was further observed that in order to determine whether the confession was voluntary or not the attending circumstances must be subjected to a very close, minute and rigid scrutiny and that in determining the question of voluntariness of a confession, the Court must take into consideration many factors. It was observed as follows:- "They (factors) will vary with different cases. No hard and fast rules can be laid down because no situations here and now or in the future can be identical with situations in other times and places.
But if the situations are not identical, they are not completely different. So, broadly speaking the following circumstances must be borne in mind in judging the probative value of a confession:-"(1)
The character and period of the custody.
(2) Whether the confessor was placed in a position to seek the advice of his relatives or his lawyers?
(3) The nature and quantum of proof which is available against the confessor before he confessed.
(4) Whether the confession was consistent with the other evidence which was available at the time when the confession was made?" At another place it was observed by the Peshawar High Court in the above case as follows:- "Apart from the fact, that the confession has suspicious features rendering it completely unacceptable, it has been retracted. A retracted confession as a rule is never regarded sufficient for conviction. It requires corroboration by extraneous independent evidence."
' In the case of State v. Minhun PLD 1964 5 C 813 it was observed by the Supreme Court of Pakistan that retracted confession, whether judicial or extra-judicial can legally be taken into consideration against the maker himself and if the confessions are found to be true and voluntary, then there was no need at all to look for further corroboration. It was, however, further observed that the question whether in the facts and circumstances of the given case the Court should act upon such a confession alone is entirely a different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law. Thereafter, the Supreme Court in the aforesaid judgment referred, apparently with approval, to a passage from Munir's Law of Evidence, which is to the following effect:- "It is settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true."
' In the case of Tooh v. The State 1975 P Cr. L J 440 a judicial confession had been recorded on the third day of the arrest of the accused and a Division Bench of this Court ruled out of consideration such confession on account of delay holding that "the confession was recorded on the third day of the arrest of the appellant. There are a number of authorities to the effect that the delay of over 24 hours would normally be fatal to the acceptance of a judicial confession. In the circumstances, it must be ruled out of consideration".
7. The trial Court, however, has accepted the confession and made it the basis of conviction of the appellant and has relied upon the judgment of the Supreme Court of Pakistan in the case of Syed Sharifuddin Pirzada v. Sohbat Khan PLD 1972 SC 363. After referring to the evidence of the Investigating Officer and the delay of 7 days in the recording of the confession, the trial Court observed as follows:- "Be that as it may, the mere fact that the accused remained with police for some time does not make the confession involuntary unless it can be shown that the accused was induced to make confession by some threat, promise or inducement refer PLD 1971 SC 363. No such circumstances have been brought out on record. I. Therefore, hold that the confession of the accused was true and voluntary. Not only this but this confession has been corroborated by other reliable and independent pieces of evidence. The confession can, therefore, be rightly made the basis for conviction."
' In the aforesaid judgment reported in PLD 1972 SC 363, it was observed by the Supreme Court at page 368 of the report as follows:- "It may be noted that the learned trial Judge and the High Court have discarded the judicial confessions on the ground that they had been in the police custody for some time before they were produced before him for getting their confessions recorded and that they were not asked question as to how long they had been in the police custody and why they had been chosen to get their confessions recorded. In our opinion, the reasons given by the learned trial Court and the High Court on this point are unsatisfactory. The fact that Sohbat Khan was for some time in the police custody does not lead to the conclusion that he was tutored. Remaining of accused persons for some time in police custody does not affect their judicial confessions. Mr. Azizuddin, A.C.M., who recorded the statements has clearly stated in his statement that full opportunity was given to the accused persons to explain the circumstances in which they were giving their statements and complied with the pro forma which was available for recording the judicial confessions. This shows that the confessions were made voluntarily."
' We may also refer here to a recent decision of the Supreme Court of Pakistan in the case. Of Naqibullah v.- The State PLD 1978 SC 21, in which the Supreme Court placed reliance on its earlier judgment reported in PLD 1972 SC 363. In the 1978 case there were two accused. Confession of one accused was recorded before a Magistrate on the fifth day of his arrest, and on the seventh day as regards the other accused. No explanation was given for such delay and the Magistrate concerned also did not satisfy himself about the cause of the delay before recording their confessions nor did he put any question to the two accused if they were tortured by the Police. The accused had taken inconsistent stands about their confessions in their statements before the committing Magistrate and the trial Court. Investigating Officers were cross-examined to show that the confessions had been obtained by torture and the cross-examination of the concerned Magistrate also had not shown that the confessions had been obtained under any inducement, threat or promise. Supreme Court of Pakistan on the facts of that case held that the two confessions could not in the circumstances be struck down as inadmissible.
8. It is pertinent to observe here that such case has its distinguishing features and has to be decided on its own facts in the light of established legal norms. The point that requires consideration is that whether the instant case has any different features and whether in view of the principles laid down in PLD 1972 SC 363 and PLD 1978 SC 21, the judicial confession of the appellant before us is admissible in evidence.
9. In the case before us there is no eye-witness. The judicial confession has been retracted. P.W.4 Abdul Rauf was produced in evidence on behalf of the prosecution as the appellant was said to have made an extra-judicial confession before him. However, in his evidence before the trial Court P.W.4 Abdul Rauf was declared hostile. According to the testimony of this witness, the appellant had told him that during the night some one had killed the deceased. However, at another place in the examination-in-chief this very witness states that the appellant had told him that since the deceased had abused him, the appellant had killed the deceased. P.W.2 Hasan Ziahad deposed that the appellant had made an extra-judicial confession before him. The appellant has denied in his statement under section 342, Cr.P.C. That he had made any extrajudicial confession.
10. If the appellant had confessed to the crime on 20th June, 1973, in normal circumstances and if he was ready to make a confession before a Magistrate, he would have been taken before a Magistrate and the confession recorded expeditiously i,e, without any delay. However, as observed earlier, the confession is recorded by the Magistrate on 27th June, 1973. Learned counsel for the appellant has urged that this delay of 7 days by itself is sufficient to knock out the judicial confession. We may, however, refer to the evidence of the Investigating Officer and the Magistrate to see whether any explanation for this delay has been advanced and whether such explanation can be accepted as plausible and convincing, and if so whether the judicial confession can still be accepted in spite of the delay.
11. P.W.8 Moazzam Husain S.H.O., who was the Investigating Officer, has stated as follows about the judicial confession:- "I do not remember if I had taken the accused to the Court myself for his confession. It is incorrect that during 20th June, 1973 and 27th June, 1973 I had exercised third degree tactics on the accused to get his confession. Voluntarily states that procedure here at Karachi, is that the police applies for a date from the link Magistrate for recording confessional statement. The delay of one week is normal in such cases. Otherwise the Magistrate refuses to record the statement. I do not remember that 23rd June, 1973 was given to me for the purpose but if it was so some other impediment may have put off recording of the confession. After refreshing his memory the witness states that I produced the accused before A.D.M., Karachi on 22nd June, 1973 for the purpose and he referred me to A.C.M. XVIII, Karachi for it, who directed me to produce the accused before him on 27th June, 1973. That application is on the record of the concerned Magistrate. It is incorrect that since there was no ocular testimony against the accused I got his confession under It is incorrect that the confession was recorded by the Magistrate in my presence."
' P.W.1, the Magistrate in his evidence has stated that the accused was produced before him on 27th June, 1973 for recording of judicial confession. He has further stated in his cross-examination as follows:- "I received a letter from the concerned police with endorsement, dated 23rd June, 1973 from City and A.D.M., Karachi, giving me jurisdiction to record the confession. This letter was brought before me on 26th June, 1973. By this letter the police had requested for a date on which the confession was to be recorded by me so that the accused could be produced. I did not enquire of the police about the gap of 3 days in producing the letter before me."
' A perusal of the above extracts from the evidence of the two witnesses shows certain contradictions. The Investigating Officer first stated that he got the confession recorded but then said that he is not sure whether he had produced the appellant before the Magistrate for getting the confession recorded. But in his cross-examination he denies the suggestion that he did. Further according to the Magistrate, the accused was produced before him on 27th June, 1973 and a day earlier, that is on 26th June, 1973 the letter of A.D.M. Was brought before him. This would show that the appellant was produced once before the Magistrate, that is on 27th June, 1973. However, according to the S.H.O., the appellant was produced first before the A.D.M. On 22nd June, 1973, from where he was referred to the Magistrate, who directed the S.H.O. To produce the appellant on 27th June, 1973. Initially there is a delay of about 48 hours from the time of the arrest of the appellant on 20th June, 1973 till the time the application is made to the A.D.M. By the police for getting the confession recorded. Then there is a further delay of 5 days from 22nd June, 1973 to 27th June, 1973, for which there is no plausible explanation on record. If the appellant was ready to confess before a Magistrate and the A.D.M. Had referred the police to take the appellant to the concerned A.C.M. On 22nd June, 1973, it has not been explained why was he not taken on the same day or the next day for recording of the confession but it took the police 5 days to produce him before the Magistrate.
On the other hand, according to the Magistrate, the application of the A.D.M. Was itself produced before him on 26th June, 1973 and he recorded the confession the next day on 27th June, 1973. Then the Investigating Officer says that "I do not remember that 23rd June, 1973 was given to me for the purpose but if it was so some other impediment may have put off recording of the confession."
What was or could be the "impediment" has not been disclosed. Further, the statement of the S.H .0.
That "the delay of one week is normal in such cases" cannot be accepted on its face without an acceptable explanation as to why delay of one week is "normal" in cases of recording of judicial confessions in Karachi. If the statement of the S.H .0. Is accepted, then in Karachi in all cases where the judicial confessions are recorded even after the expiry of 7 days of the arrest of the maker of the confession, without any explanation for delay, such delay is to be ignored and is not to be considered as a factor for rejecting the confession. Instead of delay of one week there might well have been delay of one or two months in the recording of the confession in this case, and if in such a case the statement simplicity by the Investigating Officer had been that in Karachi delay of one month or two months was "normal" for getting the confessions recorded, could such a statement be accepted ? Surely it would be difficult to accept such a statement.
12. Mr. Chulammally Agha, learned counsel for the State, also conceded that in this case there is no plausible explanation about the delay of 7 days in the recording of the judicial confession and there is contradiction about the explanations in the statement of the Magistrate and the S.H.O. And that the explanation of the S.H.O. Is patently unsatisfactory. Learned counsel further conceded that the retracted judicial confession of the appellant in the circumstances of the present case cannot be admitted and that in this view of the matter, he does not support the conviction of the appellant.
13. As observed earlier, the main piece of evidence against the appellant is his retracted confession, and according to our view, this confession is not admissible on account of delay of 7 days in its recording which delay has not been explained satisfactorily coupled with the contradictions in the testimony of the Magistrate and the Investigating Officer. The facts of the instant case are clearly distinguishable from the facts of the two Supreme Court cases referred to above in para. 7 of this judgment. The confession is being struck down on account of delay for which unsatisfactory explanations have been given and the contradictions in the testimony of the Magistrate and the Investigating Officer which have cast a doubt on the voluntary character of the confession.
14. In the absence of the said judicial confession, the conviction of the appellant cannot be sustained. In any case the judicial confession has been retracted by the appellant and even if the retracted judicial confession is admissible, the matter would not end there as the rule of prudence is that conviction of an accused ought not to be based solely on the retracted confession but it should be corroborated by independent evidence. In the instant case there are extra-judicial confessions of the appellant which were retracted but the same were employed by the trial Court for purposes of corroboration. P.W.4 Abdul Rauf had even turned hostile. However, such pieces of evidence could not be used for corroboration of a retracted judicial confession. It is an established principle that a retracted extrajudicial confession cannot corroborate a retracted judicial confession. In the case of State v. Minhun PLD 1964 SC 813, and referred to earlier, Supreme Court of Pakistan confirming such principle observed as follows:- "The proposition that a retracted extra-judicial confession cannot corroborate a retracted judicial confession cannot also be assailed where corroboration is found necessary, for, that would amount to utilizing of one piece of tainted evidence to corroborate another piece of tainted evidence."
' In the case reported in PLD 1978 SC 21, although the confessions of the two accused were held to be admissible, as observed earlier, yet the Supreme Court ulitmately set aside their convictions and one of the main grounds for this was that there was no sufficient and reliable corroboration available on the record against the two accused in support of the two respective confessional statements. In that judgment, the Supreme Court referred to PLD 1964 SC 813 and also to two other judgments of the Supreme Court. It referred to the case of Nadir Hussain v. The Crown 1969 SCM R 442 where it was observed that the rule of caution universally applied to the cases of retracted confession is that it should not be acted upon "unless corroborated in material particulars by reliable evidence". In the case of Dhani Bakhsh v. The State PLD 1975 SC 187 relying on the dictum in the case reported in PLD 1964 SC 813 observed that it is well-settled that a retracted judicial confession is seldom made the basis of conviction without being materially corroborated.
15. To use the terminology of the Supreme Court, the retracted extra- judicial confessions being tainted pieces of evidence cannot corroborate the retracted judicial confession of the appellant, being another piece of tainted evidence.
16. As regards the recovery of blood-stained clothes of the appellant there is contradiction in the evidence of the witnesses. According to the Investigating Officer the appellant was wearing blood- stained clothes at the time of his arrest and denied the suggestion that his clothes were not blood- stained. However, one Mashir P.W.7 Mahmood Kazi was very adamant in his evidence that the accused was not wearing blood-stained clothes. Motive in this case is also very weak. We are accordingly of the view that the retracted judicial confession in any case is not corroborated by independent evidence and as such the conviction of the appellant cannot be maintained.
17. In the circumstances the judgment and sentence dated 11th February 1979 passed by the Ex- Officio Vth Additional District and Sessions Judge in Sessions Case No,173/74 are set aside and we decline to confirm the death sentence. The appellant is set at liberty if not required in any other case.
' By a short order, dated 19th October, 1981 we had allowed the appeal and refused to confirm the death sentence against the appellant for reasons to be recorded later. This judgment contains the reasons for our short order announced on 19th October, 1981.