' Bashir Masieh (21) and his brother Mukhtar Masieh (23) were tried for the murder of their father Arjin Masieh by the Additional Sessions Judge, Lahore. On 1-4-1980 Bashir Masieh was convicted under section 302 P.P.C. He was sentenced to imprisonment for life and fined Rs, 1000 in default to undergo one year R.I. Further. Mukhtar Masieh, was acquitted. Appeal of the convict is before me.
2. Facts which led to the occurrence in this case as disclosed inthe confessional statement Exh. P.M.
Of Bashir Masieh are that two days before the occurrence in this case, his father Arjin Masieh came to his house and made advances towards his daughter-in-law namely Mst. Surraya. She is appellant's sister-in-law. Mst. Surraya resisted the deceased and started weeping. She was still weeping when Bashir came home, upon his inquiry, she narrated the whole story. Bashir asked his father about it who kept mum and went into his bed. At night Bashir got up, he picked up stick P.5 and gave a blow on the head of his father, as a result of which he died. Since they had to go to Raja Jang to attend a wedding, therefore, he put off the disposal of the dead-body and accompanied Mst. Surraya and Mukhtar Masieh to Raja Jang. Mst. Surraya stayed back and the two brothers returned home, they threw the dead-body In a pond situated near their house.
3. According to the prosecution on 14-2-1979 at 3.15 p.m. P.W.5 Jita Masieh saw the dead body in the pond near the railway line. He reported the matter at Police Post Dharampura the same day.
P.W. 15 _Muhammad Anwar S.I. Registered the case, thereafter, he went to the spot, prepared the necessary documents and sent the dead body for its post-mortem examination through P.Ws Muhammad Rafique and Iftikhar, F. Cs. The S.I. Took into possession other articles from the clothes of the deceased.
4. On 15-2-1979 at 3 p.m. Dr. Muhammad Tahir Anis held the autopsy on the dead body of Arjin Masieh. The doctor was not produced at the trial because he had failed to appear, though he was summoned repeatedly. For prosecution's failure to produce him, trial court closed the prosecution case.
5. On 20-2-1979 at 10 p.m. Bashir Masieh, accused, made an extra judicial confession before P.W. 7 Muhammad Sadiq and P.W. 8 Sohan Masieh. On 21-2-1979 P.W. 15 Muhammad Anwar, S.I. Arrested Bashir accused. The same day in custody, Bashir Masieh got recovered the weapon of offence Danda Exh. P.5 from his house and other articles of the deceased which were also taken into possession. On 22-2-1979 Bashir Masieh, accused, desired to make a confession. He was produced before P.W. 14 Muhammad Irshad Busal M.1.C. For recording the confession. The Magistrate allowed opportunity to the 'accused to think over the matter and later recorded his statement Exh.P.M.
Thereafter he was sent to the judicial lock up through the S.I. The same day P.W. 13 Mst. Surraya made statement Exh. P.1 under section 164,Cr.P.C. Before the same Magistrate. P.W.9 Bashir Masieh identified the dead body before P.W.3 Muhammad Rafique, F.C., who had taken the deceased to the hospital. Although, the doctor was not examined in this case but a perusal of the postmortem report reveals, that before him none identified the dead body perhaps for this reason P.W.9 Bashir Masieh had identified the dead body later before P.W.3 Muhammad Rafique, F.C.
6. At the trial, the accused denied guilt and ascribed the case to suspicion. Trial Court did not believe the extra-judicial confession and the recoveries. These pieces of evidence were rightly discarded for sound reason that Danda P.5 was not stained with human blood, this recovery as such was of no consequence. P.W.7 Muhammad Sadiq and P.W. 8 Sohan, the two witnesses of the extra-judicial confession of the appellant were not previously known to him and they were also not persons of any importance in the village i.e, a Lambardar or a Member of the Union Council. Under these circusmtances it was highly improbable that the accused would confess before them.
Moreover, by that time no evidence had been collected in this case to connect the accused with the crime, therefore, I am of the view that these are sound reasons which the trial Court took into consideration. Even otherwise an extra-judicial confession is always considered to be weak evidence. Mukhtar Masieh accused was acquitted because he was neither named by Mst. Surraya in her statement recorded under section 164, Cr.P.C. Nor his name appeared in appellant's confessional statement Exh. P.M. In convicting the appellant, trial Court placed reliance on the retracted confession and P.W. 13 Mst. Surraya's statement which she made under section 164, Cr.P.C. However, she had also resiled from her previous statement.
7. Criticising trial Court's finding, learned counsel for the appellant contended that a retracted confession and the statement of Mst. Surraya recorded under section 164, Cr.P.C. From which she resided at the trial were weak pieces of evidence and could not form the basis of conviction. Their inter se corroboration will also have no value unless they were corroborated by an independent source which in this case was none. Corroboration of a weak piece of evidence with another similar type of evidence will only be adding to the quantity of weak evidence but not to its quality. It was also argued that the Magistrate who recorded the confession did not inquire from the accused as to for how long he had remained in police custody. Next contended that there has been a violation of the provision of section 265-J, Cr.P.C. Inasmuch as that it was mandatory for the Court recording statement under section 164, Cr.P.C. To issue notice to the accused and to afford opportunity to him to cross-examine the witness. Its non compliance caused a prejudice to the accused because this statement came like a surprise to him which is against the underlying spirit of this enactment. A proper compliance of this section would have afforded an opportunity to the accused to engage a counsel to cross-examine the witness. In support of this submission, reliance was placed on Abdul Hakim and another v. The State PLD 1982 Kar.
975.
8. I have considered the submissions. Trial Court, has not taken into consideration the effect of non-compliance of the provision of section 265-J Cr.P.C. While recording the statement under section 164, Cr.P.C. Of Mst. Surraya in my view, proper opportunity to the appellant to defend himself was not afforded by the Magistrate, who recorded the statement. Besides it being a weak piece of evidence, it also looses its evidentiary value. As to the retracted confession, "it is a settled rule of evidence that unless a retracted confession is corroborated with material particular, it is not prudent to base the conviction in a criminal case on its strength alone. It is the duty of a Court that is called to act upon a retracted confession to inquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true."
' It is a case of patricide. While weeping Mst. Surraya complained to the accused, a violent reaction from the accused then and there could have been easily understood, but he kept quite then.
Moreover the story of having left the dead body unattended in the house and having gone to Raja Jang for a wedding did not speak of the normal conduct of those who have crime on their hands.
Furthermore, the dead body was allegedly thrown in a pond within the vicinity of village near a railway track. It would be visible and accessible to all was again improbable conduct. The dead body remained unidentified before the doctor who held the autopsy. Learned State counsel contended that Mst. Surraya put up a different version at the trial by saying that the deceased fell from a tree but she did not report this matter. Similarly, Mukhtar Masieh, the acquitted-accused had said that his father was missing but there was nothing to indicate that they tried to search for him. In my opinion, these submissions did not go to prove the prosecution case which suffers from serious infirmities as discussed above. Since the prosecution story is full of improbabilities, the retracted confession to my mind required corroboration from a disinterested reliable source which is lacking in this case. I therefore, give the benefit of doubt to the appellant, accept his appeal and acquit him of the charge. He shall be released forthwith if not required in any other case.