Appellant Aijaz Hussain son of Mazhar Hussain has been convicted by the learned Civil Judge & A.
C. M. (Section 30 Magistrate), Hyderabad for an offence under section 392, P. P. C. and sentenced to suffer R. I. for five years.
2. The facts leading to the appeal briefly are as follows: On 18-12-1965, at about 7 p.m. complainant Abd Mustaqeem Khan Sub-Inspector Octroi was on duty in his To Tax Office at Latifabad. His octroi clerk Dilshad Bux P. W 5 and peon Habibullah were also with him, when two persons entered his office with open knives in their hands. Their third companion who was armed with a revolver stood outside near the open window. The robbers who had come inside caught hold of peon Habibullah and octroi c'erk Dilshad Bux and pushed them inside the room.
Thereafter, they searched the drawers and secured the keys and cash of Rs. 3,000.00, lying therein.
The robbers thereafter put the Sub-Inspector also inside the room. The three of them were rescued thereafter by a Chowkidar who came and unbolted the door and it was thereafter discovered that Rs. 15,000.00 were missing from the safe which was opened and found empty. P. W. Mustaqeem stated that he and Habibullah thereafter came to Latifabad Police Station and brought the S.H.O, himself to the scene of offence where the First Information Report was recorded on a blank paper.
The version of the S. IT. O. Ghulam Ahmed, on this point is, however, different. He stated that he came to the scene of occurrence on the telephone message received at about 8-15 p.m. He however, could not say as to who sent this phone message.
After recording the First Information Report S. H. O. examined some witnesses but the investigation was thereafter taken over by Inspector Sardar Ahmed of C. I. A. on 20th December 1965. P. W. 10 Mohammed Sadik, S. I. P. (C. T. A.I investigated this case. The said S. T. P. (C. T. A.) came to Lahore on 24-1-66 and conducted a raid on the house of one Mst. Azra Begum and secured one Asif who was later made an approver blithe did not support the prosecution case. On 27-1-1966 co- accused Sardar was arrested at Lahore and he informed the police about absconding accused Niki. S. I. P.
Mohammed Sadiq thereafter came to Hyderabad and recovered some amounts of money from different persons. He searched the house of one Jaffar Hussain, a brother of the appellant. The appellant was already under arrest and in custody of Anti-Corruption Police in another case. On 19-2-1966, Mohammed Sadiq went to Lahore and secured a radio set from the house of appellant.
He also secured a golden ring therefrom. This radio set according to the prosecution was purchased from the shop ofM. Yakoob & Co., Lahore vide cash memo. Exh. 11 /E. On 26-2-1966, judicial confession of the appellant was recorded by the special Magistrate, Hyderabad. After the usual investigations were completed, the appellant was challaned and convicted as stated above.
3. The defence of the appellant was one of denial. He alleged that he made the confession on account of police beating. He further stated that Abdul Mustaqeem and Dilshad Bux may have got him involved as they had enmity with him.
The learned Magistrate framed the following three points for determination:--
(1) Whether robbery of Rs. 15,000 was committed at the Municipal Octroi Post, Latifabad,
(2) Whether any of the accused committed the robbery.
(3) Whether accused Hameed dishonestly received the robbed money, knowing the same to be stolen property."
On both the points 1 and 2 his findings were against the appellant.
4. Mr. Abdul Fateh Memon, the learned counsel for the State has very rightly conceded before me that on the evidence as it stands the story of robbery itself does not appear to be very convincing.
There is no independent evidence thereof on record apart from the oral word of these three interested witnesses, namely, Abdul Mustakeem, Dilshad Bux and peon Habibullah. The latter two were working under Abdul Mustakeem and were, therefore, under his influence. If the robbery had taken place as alleged by P. W. Mustakeem, surely, the robbers could have been chased. The witness admitted that during the evening hours there is heavy rush of work at the Chungi. The trucks bound for Badin and Karachi come at the toll office one by one. He stated that 30 to 40 trucks come, by 10 p.m. There is a petrol pump near the toll tax office, and a Chowkidar used to remain at the pump. Admittedly a truck was there when this robbery was being committed. It is surprising as to how three robbers could escape in a rickshaw when they in fact had been chased by a truck. The circumstances in which this F. I. R. was recorded are also bound to create doubt.
According to P. W, Mustakeem, he went to the police station and brought the S. H. O. with himself.
The said S. H. O. however contradicted him and stated that he came to the scene of offence himself on receiving a telephone message. It is in these mysterious circumstances that the First Information Report was recorded. Moreover the truck driver and Chowkidar were not examined. The learned Magistrate should have, therefore, given more thought to the suggestion of the defence which was made in cross-examination of the three eye-witnesses of the occurrence, namely, that they had themselves misappropriated this amount and thereafter filed a false case.
5. Mr. Abdul Fateh Memon also points out that it is unusual that a large amount of Rs. 18,000 should have been kept in the office in this manner. P. W. Dilshad Bux was asked whether under the rules they could keep more than Rs. 1,000 at a time but he pleaded lack of knowledge of the relevant rules. Be that as it may, the fact, however, remains that apart from the confession of the appellant there is no other material to prove conclusively or beyond a reasonable doubt that any robbery took place in this case.
6. The judicial confession itself was recorded on 26-2-1966, while the appellant was admittedly arrested on 11-2-1966, The confession was accordingly, recorded after a prolonged police custody of more than two weeks. It has been repeatedly held by this Court that in such cases the evidentiary value of the confession is considerably weakened. I may in this connection refer with advantage to a case decided by a Division Bench of this Court as Haji Yar Mohammed v. Rahim Ditto and others (1) wherein it was held that the judicial confession was rightly discarded by the trial Court as it was recorded after the accused had remained in police custody for about a fortnight. Similarly in Aklitari Begum v. The State (i), their Lordships observed in paragraph 15 of their judgment as follows:-- "If an accused person remains in the custody of the police for such a long time as 8 or 14 days and is produced thereafter for making the confession, the obvious inference is that the confession is not voluntary and has been induced by pressure or torture. Voluntary confessions are made shortly after arrest, and not after such long detentions."
In Fazlur Rehman v. The State (2) a Division Bench of this Court considered the character and duration of the custody to be a very relevant circumstance which must be borne in mind while judging the probative value of a confession. Their Lordships further observed 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 utilized in extracting a confession from the confessor. In Nathu v. State of Uttar Pradesh (3) the Supreme Court of India while dealing with a similar question observed as follows:-- "It appears to us that the prolonged custody immediately preceding the making of the confession is sufficient unless it is properly explained, to stamp Exh. P/15, as involuntary. P. W. 33 made no attempt to explain this unusual circumstance. It is true that with reference to this matter the appellant made various suggestions in the cross-examination of P. W. 33 such as that he was given 'bhang' and liquor, or shown pictures, or promised to be made an approver, and they have been rejected and rightly as unfounded. But that does not relieve the prosecution from its duty of positively establishing that the confession was voluntary "
It would thus be seen that when the voluntary nature of the confession itself is doubtful in this case, it cannot be safely made the basis of a conviction.
7. It is a 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. I cannot do better in this respect than to refer to the weighty observations of his Lordship the present Chief Justice of the Supreme Court of Pakistan in State v. Minhun (4) and in particular to the following passage appearing on page 822 thereof:-- "It is now well settled that as against the maker himself his confession, judicial or extra-judicial whether retracted or not retracted, can in law validly form the sole basis of his conviction if the Court is satisfied and believes that it was true [2] and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to 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. As observed even by Munir, C. J. in his 'Commentary Ion the Law of Evidence' at page 168, (Vol. 1), it is a 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'."
8. The learned counsel for the State concedes that there is no corroboration of this retracted confession against the appellant. The learned Magistrate has relied on a circumstance, namely, that a radio set and a golden ring were recovered from a house .at Lahore, which was alleged to be in the occupation of the appellant. Admittedly, the appellant himself was not in the house then.
Neither the radio nor the ring are in any manner connected with this offence. What is more P. W 11 S. A. Mobin, who is a salesman of Yakoob & Co. stated in his evidence that he did not remember that the appellant had purchased a radio set from him. On perusal of the cash memo. Exh. 11-E the witness stated that the radio set mentioned therein was sold to one Razia Begum for Rs. 540. No evidence has been brought on record to establish any connection between the appellant and this Razia Begum. I, therefore, fail to understand as to how the learned Magistrate could have used this circumstance as corroboration of the retracted confession.
9. On consideration of the entire material on record I have no hesitation in agreeing with the learned counsel for the State that the conviction of the appellant is based on extremely doubtful evidence. He is therefore, entitled to the benefit of doubt. I would accordingly allow this appeal, set aside the conviction and sentence passed on the appellant and direct that he shall be released forthwith unless required in some other case. It is a pity that on such flimsy evidence the appellant who is an educated man had to remain in jail for over two years after his conviction. .