A. R. Sheikh, J.--Bashir Ahmad (22 years of age by appear ance) faced trial for having caused death by strangulation of one Natliu son of Shahbaz, aged 60 years, in a Chaubara in the area of Mohalla Sahiwalian, Jhang Sadar, sometimes in August 1966. He has been convicted under section 302 of the Pakistan Penal Code and sentenced to transportation for life by the Additional Sessions Judge, Jhang. This judgment will dispose of the appeal of the convict from jail.
2. The prosecution story is that the appellant was a faqir, and Nathu deceased, after having cultivated friendly relations with him, persuaded him to come and work with him at his shop.
Subsequently, Nathu sold the shop by means of a registered sale deed (Exh. P. G.) on the 19th of August 1966 to Muhammad Siddiq (P. W. 8) for a sum of Rs. 5,000.00 out of which considera tion, he received Rs. 4,000.00 in cash before the Registrar. The appellant, Bashir Ahmad, is a marginal witness to this document. Nathu wanted to purchase some agricultural land with this money and the appellant having failed to prevail upon him not to do so and allured by the temptation of Rs. 4,000.00 caused Nathu's death by strangulation, while he was asleep, at his place in Jhang Sadar and then decamped with the amount of Rs. 3,850.00 from the dab of the deceased. The unnatural death of Nathu was detected by Hafiz Muhammad Amin (P. W. 13), to whom the property, where Nathu lay murdered, belongs. He reported the matter to the police on the 23rd of August 1966 as per first infor mation report Exh. P. A.
1 at 7-30 p. m.
3. The conviction of the appellant is grounded on three factors, namely ' retracted confession Exh. P.
0./6 before Ch. Ghulam Murtaza, Magistrate 1st Class, Jhang (P. W. 3), recorded on the 9th of September 1966, the recovery of purse (Exh. P. 3) as per recovery memo. Exh. P. 5, in the name of Nathu, coupled with other circumstantial evidence, namely Exh. P. G. the sale- deed, and Exh. P. C. a letter allegedly in the handwriting of the appellant stated to have been recovered from under the pillow of the deceased.
4. Taking the question of recoveries first, we find that the recovery memo. Exh. P. H. has been witnessed by Muhammad Afzal Khan (P. W. 17) and Ghulam Farid (P. W. 18). The Investigating Officer Ghulam Qadir (P. W. 19) has also affixed his signatures thereto and this recovery has otherwise been witnessed and supervised by Sh. Mukhtar Ahmad Piracha, Tehsildar, Magistrate II Class (P. W.
4). How the Magistrate has been associated with this recovery is rather understandable. From the record we find that an application (Exh. P. N), was made by the Investigating Officer before the District Magistrate, Jhang on the 8th of September 1966, for recovery of the amount stated to have been buried by appellant in his house, which the appellant was prepared to get recovered at his instance. The application was forwarded by the P. S. I. to the District Magistrate. The District Magistrate and the Additional District Magistrate, Jhang being on tour, it was placed before Ch. Ghulam Murtaza (P. W. 3), Magistrate 1st Class, who passed an order the same day to the effect that Mr. Mukhtar Ahmad Piracha (Tehsildar), Magistrate II Class, should supervise the recovery. In pursuance of this order, Mr. Piracha (P. W. 4), went along with the Sub-Inspector, the accused and two witnesses, namely, Muhammad Afzal Khan (P. W. 17) and Ghulam Farid (P. W. 18), and recovered the purse (Exh. P. 3) containing the notes (Exhs. P. 4/1-4) and the prescription (Exh. P. 5).
His report is Exh. P. N./l giving all these details. Exh. N/2 another note by the said Magistrate shows that he has visited the spot and recovered the purse containing Rs. 2,000.00 and a prescription at the instance of the accused. Strangely enough, these two witnesses of the recovery, Muhammad Afzal Khan and Ghulam Farid are not respectable inhabitants of the locality in which the place to be searched was situate. Ia their cross-examination they have admitted that they live far away from the place wherefrom the recovery was made and Ghulam Farid (P. W. 18) further admitted that he is an employee of Shaheen Tubewell Corporation, which is in proximity of the Tehsil Office and the Kotwali. Muhammad Afzal Khan (P.W. 17) stated that in all the criminal cases, in which he is a witness, Ghulam Farid (P. W. 18) is also awitness a long with him. From these facts it can be safely deduced that these two witnesses are not in any manner independent. They are both connected with the Tehsil and the Thana and are stock police witnesses and the Magistrate when he went to make the recovery had not taken the precaution inconsonance with section 103 of the Code of Criminal Procedure and much reliance cannot be placed even upon the supervision of the recovery by the Tehsildar himself, especially when we find that on the 8th of September 1966 when the applica tion was made by the investigating officer, he read the application and then put questions to the accused, who was also present before him and knowing full well that he was a Second Class Magistrate, not competent to record confession, he did proceed to make a report Exh. P. N./l in the form of a confession. Subse quently when the investigating officer found the flaw, he presented the accused before Ch. Ghulam Murtaza (P. W. 3) Magistrate, for recording of confession and to fill up the lacuna that had crept, in a day earlier.
5. Adverting to the confessional statement we find that Ch. Ghulam Murtaza, Magistrate, when examined as P. W. 3, had conceded that he had not specifically asked the accused whether the police had put any pressure on him to make a state ment, he did not specifically ask the accused whether he had been threatened to make a confession, he did not specifically ask the accused whether his statement was the result of any inducement on the part of the police, he did not ask the accused whether he was persuaded by the police or any other person to make a confession, he did not ask the accused hether the police had promised fo make him an approver in the case, he did not ask the accused what he had been doing when he was in the police custody, he did not look at the papers to satisfy himself whether the accused had been remanded to police custody by any Magistrate. He further stated that the accused was handed over to the police after completion of his confessional statement but he could not say whether it was the same police who produced the accused before him. It is the same Magistrate to whom the application Exh. P. N., had been presented a day earlier when he ordered the Tehsildar (P. W. 4) to supervise the recovery after going through the entire application. He con ceded that the contents of the application Exh. P. N., were perused by him and it was stated therein that Nathu had sold his shop for Rs. 4,000.00 and Bashir Ahmad wanted to lead to the recovery of rupees two thousand and for this purpose he deputed the Tehsildar to supervise the recovery. No doubt, the non-observance of the verious forms of questions prescribed by this Court in Correction Slip No. 73 dated the 14th of January 1953 has been held by this Court in fuma and others v. The Crown (1) to be not material for the purpose if otherwise the Court comes [17] to the conclusion that the Magistrate had satisfied himself that the accused was making his confessionel statement of his free will, yet the confessional statement has to be viewed against the back ground in which it has been made. As already stated above, the Magistrate, who recorded the confessional statement, knew all these facts a day earlier. The possibility cannot be ruled out that the accused was before him when he passed the order directing the Tehsildar to supervise the recovery. At least he had mentally registered the contents of the application containing the confessional statement made a day earlier and on the next day he records the confessional statement, which is identical in terms with the application Exh. P. N. He has permitted the statement to be recorded without expressing his satisfaction as to whether the confession was actually voluntary. The Magistrate's satisfac tion has to be examined in the light of the questions put by him to the accused and the answers given by the latter. The whole purpose of section 164 (3) of the Code of Criminal Procedure is to ensure voluntariness of the confession apart from and irrespective of its being hit by the provisions of section 24 of the Evidence Act. There being no indication of a real endeavour having been made by the learned Magistrate to find out the voluntariness or otherwise of the confession, the confession lost its evidentiary value, especially when it is a retracted confession. Independent evidence sought to be relied on, in the instant case, is in the form of the recovery of the purse, the currency notes and the prescrip tion. As already discussed above, the recovery memo. Exh. P. H., is a doubtful document and the learned Additional Sessions Judge has rightly rejected the same. However, the learned Additional Sessions Judge has used this recovery as corroborative evidence of the confession on the ground that P. W. 4 Sh.
Mukhtar Ahmad Piracha, Tehsildar, had supervised the recovery when the accused led the police and the Tehsildar to the recovery of the purse. The report of the Tehsildar Exh. P. N. 1 has already been adversely commented upon and it need not detain us further.
6. We now proceed to find out how far the recoveries of the corruency notes Exh. P. 4/1-4 and the prescription Exh. P. 5 are relatable to the offence. The currency notes have not been proved to have been taken from the custody of the deceased, as there is no proof on the record that they were the same currency notes which had actually been recovered from the dab of Nathu deceased or they were the same currency notes which had been given by Muhammad Siddiq (P. W. 8) to Nathu deceased. Again, the alleged prescription Exh. P. 5., is not a document which can be connected with Nathu. There is no evidence on the record to show that Nur Jamal of Nazir Medical Store, Chemists and Druggists, Rail Bazar, Maghiana, medically examined Nathu deceased on the 10th of August 1966, when the said prescription was prescribed by him. It is also not shown that this Nur Jamal was a medical practitioner. In any case this having not been shown that Exh. P. 5 was obtained by Nathu or was prescribed for Nathu deceased by Nur Jamal, this document is not sufficient to connect the accused with the murder. The question of corroborative evidence having thus collapsed, the retracted confession recorded in this slip-shod manner will not be sufficient to connect the convict with guilt. We therefore, in disagreement with the learned Additional Sessions Judge refuse to rely either on this retracted confession or the recoveries.
7. Coming to the letter Exh. P. C., alleged to have been recovered from under the pillow of the dead body, secured under memo. Exh. P. D., of which the witnesses are P. W. 6 Abaidullah and P. W. 8 Muhammad Siddiq, the vendee, we find that a novel procedure had been adopted by the investigating officer in sending the letter along with the sample writing of the accused after having obtained orders from Ch. Iqbal Ahmad Mamood, A. D. M. (P. W. 7). The Magistrate states that he obtained four samples of the writing of the accused, who copied Exh. P. C., and these copies are Exits. P. C./l and P. C/2. He conceded that he did not satisfy himself about the identification of the person brought to him. He also conceded that he did not give a note to the effect as to who was the scribe of those samples and he did not know the accused personally before obtaining the samples. In view of this fact the report Exh. P. C/6 of the Central Forensic Science Laboratory or the statement of Qamar Ahmad (P. W. 20) Handwriting Expert, cannot be successfully used against the appellant. In any case the mere recovery of a chit from under the pillow cannot be used to connect the accused with the offence of strangulation. Similarly, Exit. P. G. the sale-deed, executed by Nathu deceased on the 19th of August 1966 in favour of Muhammad Siddiq (P. W. 8) may no doubt be considered to be a factor to show that Nathu had received Rs. 4,000.00 as consideration, but that would not necessarily mean that the death of Nathu as a result of strangulation was the act of the appellant before us. The case is not free from doubt and we do not find sufficient material on the record to hold the appellant guilty of the offence. Giving him the benefit of doubt, we set aside the conviction and the sentence passed by the Additional Sessions Judge and acquit the appellant, who will be released forthwith, if not wanted in any other case.
8. The sum of Rs. 2,000.00 being unclaimed will stand forfeited to the State. We .