Muhammad Afzal Khan, J.--Mst. Bano (27) resident of Ghulam Muhammad Abad, was tried by the Additional Sessions Judge, Lyallpur for the murder of Muhammad Saeed, aged 21 years, son of her neighbour Abdul Hamid, alleged to have been committed by her on the 20th October 1967, in the area of Ghulam Muhammad Abad Police Station Gulberg, Lyallpur. By judgment dated the 23rd May 1968, she was convicted under section 302, P. P. C. and was sentenced to transportation for life.
She preferred this appeal (No. 434 of 1968) to have her conviction and sentence set aside.
2. The prosecution case, briefly stated, is as follows :-- Abdul Hamid (P. W. 11) runs a shop in Adam Chauk, Ghulam Muhammad Abad, Lyallpur. He had a daughter Mst. Shamim, aged 5 years and a son Muhammad Saeed (deceased) aged 2 years. On the 20th October 1967, in the morning, he went to his shop and at noon returned to his house for taking meals. He enquired about his son and was informed that at about 10 a.m. Mst. Shamim and Muhammad Saeed had gone to the house of their uncle Muhammad Bashir who lived in the next lane. After some time, Mst. Shamim returned and on inquiries, informed that Muhammad Saeed was not with her. Then inquiries were made at the house of Muhammad Bashir and it was learnt that Muhammad Saeed was not there. Abdul Hamid made a search for Muhammad Saeed but without success. He got it announced, with the help of loudspeaker available in the mosque that Muhammad Saeed was missing. At about 12-30 p.m. Mst. Khurshid Bibi (P. W. 5) came to the house of Abdul Hamid and informed him that his son Muhammad Saeed lay dead at the brink of a tank at a distance of about a furlong from his house. Abdul Hamid hurried to the said tank and found Muhammad Saeed lying dead. A number of men and women were present there. The "bushirt" and Banyan worn by Muhammad Saeed were wet. Thinking that Muhammad Saeed had been drowned, he hurriedly took him to the clinic of Dr. Habib Ahmad, who after examination declared the child to be dead. Then he took the child to the Civil Hospital, Lyallpur. There a doctor gave the child an injection and declared him to be dead. Abdul Hamid, took the dead body to his house. He sent for Muhammad Aslam Chairman (P. W. l2) and then the same day at 8 p.m. reported the death of the child at the Police Station Gulberg, Lyallpur. The report is Exh. P. F./l.
3. A. S. I. Ata Muhammad (P. W. 15) proceeded to the house of Abdul Hamid, and prepared the inquest report (Exh. P. G.). He sent the dead body to the mortuary for postmortem examination.
4. On the 21st October 1967, at 1-30 p.m. Dr. Ahmad Ghulam Muhammad, Medical Officer, District Headquarters Hospital, Lyallpur (P. W. 1) performed post-mortem examination on the dead body of Muhammad Saeed and observed the following injuries which were ante-mortem :--
(1) A contusion 1/3'x 1/4'on the front and inner aspect o the lower lip on the right side. The lip was swollen.
(2) A contusion 1/4'x 1/6" on the front and inner aspect on the lower lip 0n the left side.
(3) A contusion mark 1/4' x 1/8" on the inner aspect of the right side of the upper lip. The lip was swollen.
(4) A contusiori mark 1/3" x 1/4'od tlie inner aspect of the left side of upper lip.
(5) A contusion 1/8" x 1/8' on the right alonasi.
(6) A contusion mark 1/8" x 1/8' on the left alonasi; On opening the dead body, he observed that the brain, Lafynx and trachea, both the lungs, stomach, small intestines and large intestines, liver, spleen and kidneys were congested. The stomach contained semi-digested food material.
In the opinion of the doctor, the death was due to asphyxia as a result of suffocation, due to injuries Nos. 1 to 6 caused by forcible pressure, and closure of the mouth and the nose. Probable time that elapsed between the injuries and death was | to 2 minutes and between death and post-mortem examination, 24 to 26 hours.
5. On receipt of the medico-legal report, the death of Muhammad Saeed was estimated to be culpable homicide. On the 21st October 1967, at 5-30 p.m. a formal first information report (Exh. P. F.) was registered at Police Station Gulberg, Lyallpur.
6. A. S. I. Ata Muhammad (P. W. 5) partly investigated the case. He took into possession the bushirt (P. 2) and Banyan (P. 3) vide memo. Exh. P. B. He inspected the spot wherefrom the dead body had been picked up. He got prepared the site plan (Exh. P. H.) by Abdul Ghani Draftsman (P. W. 14). On the 22nd October 1967, at 8 a.m. he made over the investigation to S. I. Hayatullah (P. W. I6).
7. On the 22nd October 1967, Irshad Ahmad (P. W. 10) a B. D. Member, was sitting in the baithak of Muhammad Yousuf (P. W. 9) another B. D. Member. At about 11 a.m. Mst. Bano appellant came to them, confessed that she had killed Muhammad Saeed son of Abdul Hamid and requested them to produce her before the police.
At about noon Muhammad Yusuf (P. W.9) and Irshad Ahmad (P. W. 10) produced the appellant before S. I. Hayatullah (P. W. I6) who arrested her. She offered to produce the kachha and the shoes of the deceased, which articles were lying in her house. She produced the key (P. 4). Then she led the Sub- Inspector to her house. She opened the lock (P. 5) with the key (P. 4) and produced the kachha (P. 6) and shoes (P. 7/1-2) from a room. The Sub-Inspector took them into possession, vide memo. Exh. P. E. The recovery memo, was attested by Muhammad Aslam (P. W. l2) and Ali Muhammad (P. W. 13).
8. On the 23rd October 1967, the appellant expressed her willingness to make a confession. S. I.
Hayatullah (P. W. I6) made an application (Exh. P. K.) and produced the application and the appellant before Ch. Muhammad Amin (P. W. 2) a Duty Magistrate. The Magistrate recorded her confessional statement (Exh. P. L.). Briefly, she confessed that on Friday, immediately preceding, at about noon, the deceased passed in front of her house, that she called him in and that she killed him by closing his mouth and nose then wrapped the body in a Chaddar and threw the body in a closeby tank.
9. At the trial, Abdul Hamid proved the statement (Exh. P. F.) Mst. Khurshid Bibi (P. W. 5) described the discovery of the dead body at the pond (tank) Mst. Rashidan wife of Abdul Hamid, stated that about a month before the murder of her son, she had seen Abdul Hamid kissing the appellant and thus learnt of the illicit relations between the two. She remonstrated with her husband and stopped the visits of the appellant. About l2 days before the occurrence, Mst. Rashidan and the appellant had a quarrel which arose out of the quarrel of children. In the course of the quarrel, Mst. Rashidan tauntingly referred to the illicit relations of the appellant with Abdul Hamid. Abdul Hamid also deposed about his illicit relations with the appellant, and gave other details. Muhammad Yusuf (P.
W. 9) and Irshad Ahmad (P. W. 10) deposed about the extra-judicial confession. Ch. Muhammad Amin Magistrate (P. W. 2) deposed about the judicial confession, Hamid Khan (P. W. 8) a neighbour, stated that on the 20th October 1967, at about 11 a.m. when he was busy collecting his bricks lying in front of his house, he saw the deceased standing in front of the door of the house of the appellant and then the appellant by signalling to him took him inside her house. Muhammad Taqi (P. W. 7) deposed that on the 20th October 1967, at about noon, he saw the appellant going towards the water tank. He added :-- "She had a child wrapped in a cloth. The feet of the child were hanging out."
Abdul Ghani Draftsman (P. W. 14) proved the site plan (Exh. P. H.). A. S. I. Ata Muhammad (P. W. 15) and S. I. Hayat Ullah (P. W. I6) gave the details of the investigation.
10. The appellant, in her statement dated the 13th January 1968, before the committing Magistrate, denied all the allegations appearing against her. As regards the judicial confession she urged that the proceedings had been taken "under police coercion and torture". At the trial as before, she denied the alleged recoveries and the extra-judicial confession. As regards the judicial confession, who made the following statement :-- "I have made the statement under pressure and torture. The facts are that at first I was taken from my house at about 8 a.m. and was kept in a cell at the police station where the thanedar and some policemen servants kept on pressure on me that I should confess the killing but I did not agree. In the evening the Chairman, Union Committee came and said to me that either I should confess a killing or should hand over the possessions of my house to him. I refused to do so. The S. I. then handed me over to the Chairman who brought me to his house and kept me there for the night. His family was not there.
The Chairman, Abdul Hamid P. W. and another person, kept me awake throughout the night and kept on pressing on me that either I made a confession or handed over my house to them. I did not agree to it. They threatened me throughout the night. Next morning at about 8 a.m. the S. I. also came there. All of them again threatened me. I was brought to the District Court on a scooter by the Chairman. The S. I. brought Abdul Hamid P. W. The S. I. went into the Court Room and then came back and said that the Magistrate was not agreeable. I was again taken back to the police station where I was kept in a cell and was again threatened by the police. They tortured me and they again brought me to the District Courts. When I was produced before the Magistrate the Chairman and the Sub- Inspector were present. It was under their pressure that I made the statement Exh. P.
L".
She added :-- "Before I made the statement, it was promised to me that if I confessed the guilt they would get me bailed out. After the statement was recorded, they did not get me bailed out but sent me to Jail, saying that the D. C. was not there and I will have to stay for one night in jail."
She did not examine any witness in defence. She however, produced the site plan (Exh. D. D.).
11. The learned Additional Sessions Judge believed that the appellant nursed a grudge against Mst.
Rashidan (P. W. 6) on account of the quarrels. He disbelieved the alleged extra-judicial confession.
He took note of the fact that Muhammad Yousaf, Irshad Ahmad and Muhammad Aslam, Chairman P. Ws., belonged to the baradari of Abdul Hamid. He also disbelieved the recoveries of kachha (P. 6) and shoes (P. 7/1-2) from the house of the appellant mainly on the ground that if the appellant had decided to throw away the bushirt (P. 2) and the Banyan (P. 3) she would not retain the kachha (P.
6) and the shoes (P. 7/1-2). He however, accepted the judicial confession, as, in his view, the formal defects, if any, stood cured by the statement made by Ch. Muhammad Amin, Magistrate (P. W. 2) in pursuance of section 533, Cr. P. C. As regards the circumstantial evidence, he disbelieved the evidence of Muhammad Taqi (P. W. 7) but believed the statement made by Hamid Khan (P. W. 8).
Finally, holding that the retracted judicial confession was corroborated in certain material particulars, he decided to accept the same and act upon it. Accordingly, he convicted and sentenced the appellant as stated above.
12. Mr. Sikandar Bakht, learned counsel for the appellant, made the following submissions :--
(a) The alleged judicial confession was recorded after the appellant had been in police custody for a long time.
(b) The judicial confession was the result of threat, duress, coercion and torture to the appellant.
(c) The learned Magistrate, who, on his own showing, knew the form and procedure, acted in utter disregard of it in recording the confession, with the result that the statement (Exh. P.L.) was inadmissible in evidence.
13. Mr. R. S. Sidhwa, learned counsel appearing for the State, conceded at the outset that he did not rely on the recoveries of the kachha (P. 6) and the shoes (P. 7/1-2) and the extra-judicial confession. He, however, maintained that the defects, if any, in recording the judicial confession, stood cured by the statement of the Magistrate and that the confession, even though retracted, was corroborated in material particulars and, therefore, the appellant's conviction could validly be founded thereon.
14. A perusal of Exh. P. L. would show that the Magistrate recorded the statement of the appellant in pursuance of section 164, Cr. P. C. At the end, he appended a certificate that before he recorded the confession" he introduced himself to the deponent and explained to her that she was free to make a statement and was at liberty to refuse to do so." Learned counsel for the appellant referred to the provisions of sections 164, 342 and 364, Cr. P. C., and the form prescribed in rule 5, Chapter 13 of the High Court Rules and Orders, Volume III for recording a confession. He also referred to the cases reported as Bakhat Bam v. The Crown (1), Waztr v. The State (2), Hasham v. The State (3), Ramzan v.
The State (4) and Nurul Haque v. The State (5). He urged that the Magistrate failed to comply with the mandatory provisions of the procedure and that there was no warrant for the conclusion that the statement made by the appellant was, to the satisfaction of the Magistrate, voluntary.
Accordingly, he maintained that Exh. P. L. was wholly inadmissible in evidence.
15. Section 164, Cr. P. C. deals with the recording of statements and confessions. Subsection (3) runs as below :-- ''A Magistrate shall, before recording any such confession, explain to the preson making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect :-- 'I have explained to (name) that he is not bound to make a confession and that, if he docs so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed) A. B., Magistrate.' "
(2) PLD 1960 Kar. 674
(4) PLD 1966 Kar. 242 L J 463 Rule 5, Chapter 13, High Court Rules and Orders, Volume III Bano prescribes the form in which confessions should be recorded. It L* . runs as below :-- i>ta,e . . . . . . . . Muhammad (The Magistrate shall first as required by section 164(3), Code jfzal Khan> of Criminal Procedure, explain to the accused person that he is not bound to make a confession, and that if he does so, it may be used as evidence against him, and shall then put and record answers to the following question. If the answers are of such a character as to require him to do so should put such further questions as may be necessary to enable him to Judge whether the accused person is acting voluntarily. In arriving at his conclusion on this point the Magistrate should consider inter alia the period during which the accused person has been in police custody and make sure that the confession is not the result of any undue influence or ill- treatment. Special care should be taken when women or children are produced by the police for their confessions being recorded).
Q. 1.--Do you understand that you are not bound to make a confession?
A. -- Q. 2.--Do you understand that your statement is being recorded by a Magistrate, and that if you make a confession, it may be used as evidence against you?
A. -- Q. 3.--How long have you been in police custody?
A.-- Q. 4.--Do you understand that after making a statement before me you will not be remanded to police custody, but will be sent to the judicial lock-up?
A.-- Q. 5.--Understanding these facts, are you making a statement before me voluntarily?
A.-- Q. 6.--What are your reasons for wishing to make a statement?
A.~ Statement of accused.
(Mark or signature of accused).
Magistrate." n rule 13 of the said Chapter are reproduced the instructions sued by the Punjab Government for guidance of the Magistrate cording confessions.
They are :-- "(a) In order to ensure that a statement or confession under section 164 of the Code of Criminal Procedure is made [voluntarily, the following precautions should be taken. Before he Magistrate proceeds to record the confession, he should arrange--so far as is compatible with his safety and that of his staff and with the safe custody of the prisoner--that the latter is left for some time (say, for half an hour) out of the hearing of police officers or other persons likely to influence him.
(b) The Magistrate who records a confession under section 164, Criminal Procedure Code, should not hand over the document after completion to the Police Officer in charge of the prisoner, but should forward it as required by subsection (2) of that section direct to the Magistrate by whom the case is to be enquired into or tried.
(c) These instructions do not prohibit a Magistrate who has recorded a confession or statement from allowing the police to take a copy of it before it is forwarded to the trial Magistrate ; and Magistrate should always permit the police to take a copy if they express a desire to do so. When permission is so given, the police copy should be written out by a police officer or clerk from the dictation of an officer of the Court, in the actual presence of the Magistrate who recorded the confession. Time and Labour can be saved if the Magistrate recording a confession makes a carbon copy which can subsequently be made available for police purposes, or alternatively dictates a copy to an official of the Court at the same time as he himself writes the original."
I6. It may be seen that emphasis is on the voluntary nature of the confession. In order to determine that the confession is being made free from the influence of the police, the Magistrate advisedly has the handcuffs of the accused removed and ensures that all police officers vacate the Court Room. He, inter alia, puts the following questions :--
(1) For how long have you been in the police custody?
(2) Has any pressure been brought to bear upon you to make a confession?
(3) Have you been threatened to make a confession ?
(4) Has any inducement been given to you?
(5) Why are you making this confession?
If the Magistrate is satisfied that the prisoner is making the confession voluntarily, he should put the set questions as given in the printed form and then record the confession. Said Begum v. The State (1). The satisfaction of the Magistrate as to the voluntariness of the confession must be made on the answers given by the accused to the questions put to him. A Magistrate must make a real and substantial inquiry as to the voluntariness of the confession. Where he is found not to have made such inquiries, the confession is inadmissible in evidence. (PLD 1950 Lah. 68).
If the confession is recorded in accordance with the procedure prescribed, the record is admissible in evidence to prove the confession under section 80 of the Evidence Act. [5] Section 533, Cr, P. C. provides that where any provisions of section 164 or section 364, Cr. P. C. have not been complied with by the Magistrate recording the statement, the trial Court "shall take evidence that such a person duly made the statement recorded and notwithstanding anything contained in the Evidence Act, 1872, section 91, such statement shall be admitted if the error has not injured the accused as to his defence on the merits".
Learned counsel for the State pointed out that in the instant case the statement made by Ch. Muhammad Amin Magistrate (P. W. 2) showed that substantially the statement had been duly recorded, although formal preliminary questions and asnwers had not been recorded by him. In this connection, he referred to the cases reported as--
(1) Wali Muhammad v. The Crown PLD 1950 Lah. 212.
(2) Chandar and others v. The Crown PLD 1950 Bal. 1.
(3) Bakht Bano v. The Crown PLD 1950 Lah. 68.
He maintained that the defects, if any, were only defects of form and not defects of substance.
17. The Magistrate stated that when the appellant was produced before him for the recording of confession, "I turned out all the police officers from my Court. Thereafter, 1 explained to Mst. Bano accused that I was a Magistrate 1st Class and that she was not bound to make any statement before me. And if she makes any statement before me it could be used as evidence against her. She wanted to make a statement...................... " Then the Magistrate made her sit on one side for about half an hour to ponder over the matter. After that period, he repeated the warning and when she still persisted in making the confession, he recorded the statement. As regards the omissions, he explained as below :-- "I did not make the record of the question put by me and the answers made by the accused because it was not then in my knowledge that it was necessary to do so. From my examination of the accused I gathered that she was making a voluntary statement. I, therefore, recorded her statement Exh. P. L. The statement Exh. P. L. Was made by Mst. Bano in answer to my question and not in a narration as disclosed from the statement Exh. P. L. J did not record those questions because of ignorance.............. After the statement, 1 sent the accused to judicial lock-up................ " )n a Court question, he stated:-- "I had told the accused that if she was making a statement under police pressure she should not do so because even if she did not make a statement she would not be handed over to the police." 'he Magistrate further stated that he knew that a particular pro- jpdure and form has been prescribed under the rules for recording mfessional statements.
He added :-- "I did not try to find out whether Mst. Bano was produced before me from judicial lock-up or from police custody. So far as I remember the same police officer who had brought Mst. Bano to me took her back from my Court Room........................ I had questioned her why was she making a statement which could lead to her hanging. Mst. Bano replied that whatever punishment was to count (Come) to her from Allah the Almighty, she had made up her mind to make a statement. I did not record this answer of Mst. Bano."
Lastly, he conceded "I have not expressly mentioned in my certificate that Mst. Bano made a voluntary statement or that I had satisfied myself that she made a voluntary statement. I have not mentioned in my certificate that I told Mst. Bano that her statement could be used in evidence against her.......................... At it was the first time that I recorded the confessional statement of an accused I omitted to record Questions and Answers of the accused."
It may be accepted that the learned Magistrate directed the police Officers to vacate the Court Room and that he allowed half an hour to the appellant for reflection. It is apparent on the record that whatever questions that the Magistrate claims to have put to the appellant and whatever answers the appellant made to him have not been reproduced in Exh. P. L. The certificate appended at the end merely shows that the Magistrate "introduced himself to her". This is not tantamount to saying that he was a Magistrate of the 1st Class. The Magistrate did not care to ascertain how long she had been in police custody or whether her willingness to make the statement was the result of any pressure, threat, or inducement. The record does not show that the appellant was fully warned that if she made a statement, the same could be used against her.
There is nothing to indicate that the Magistrate assured the appellant that, regardless of the fact whether she made a confession or not, she would not be handed over to the police and would be remanded to judicial lock-up. It is interesting to note that in spite of assertion by the Magistrate that he assured her to send her to-judicial lock-up in point of fact, he made her over to S. I.
Hayatullah (P. W. I6). S. I, Hayat Ullah stated as follows :-- "It is correct that after her confessional statement was recorded, I took Mst. Bano to the place from where the dead body was recovered. The place of the dead body is at a distance of 1J miles from the District Courts towards the North. The District Jail is also towards North from the District Courts at a distance of about four or five furlongs."
The upshot of the above examination is that although the Magistrate claimed to have followed the mandatory provisions of law and the instructions on the subject, the record made by him of the proceedings does not bear him out. On his own showing, this was his first exercise in recording a confession and that then he did not know that such questions and answers were required to be reproduced. In other words, he did not know the requirements of law and it is not surprising that he failed to comply with the same. To put it otherwise, the claim made by him as P. W. 2 is not substantiated. In any event, in this case relating to a capital charge, it is unsafe to accept his ipse dixit in the teeth of glaring omissions in the record. Apparently, this is not a case in which the confession was duly made and only the formalities have not been duly recorded. The case is bristling with defects of substance and not merely of form. It has been rightly pointed out that only the answers given by the appellant could have furnished a rational basis for the Magistrate to conclude whether the statement that she was going to make was, in fact, voluntary. There is nothing on the record to guarantee that the statement made by her was, in fact made voluntarily. It was observed in Bakhat Bano's case as follows "Confession is inadmissible in evidence unless the Magistrate is found to have made real and substantial inquiries which he was bound to do as to its voluntary nature before recording it."
In Wazir's case it was held as follows :-- "After the recording of confession the accused person should be sent to judicial custody and they should in fact be informed beforehand that whether they make a confession or not, they shall not be delivered back to police custody. If the confessing accused is not sent back to police custody after he has made a confession, such a course seriously vitiates the voluntary nature of the confession.
Where the voluntary nature of confession is doubtful, it can hardly be credited with any evidentiary value at all."
In Nurul Haque's case it was observed as follows :-- "The whole purpose of section 164(3) is to ensure voluntariness of the confession apart from and irrespective of its being hit by section 24-of the Evidence Act. ............................. Apparently, the confessional statement (Exh. P. L.) is inadmissible in evidence and of little evidentiary value.
At this stage, we may dispose of certain arguments advanced by the learned counsel for the appellant. It was contended that the Magistrate allowed the police to take a copy of the confessional statement. As seen above, this is permissible under rule 13(c) of Chapter 13 of the High Court Rules and Orders, Volume III. It was next contended that the statement was recorded in the narrative form and not in the form of questions and answers. It has been explained in Wali Muhammad's case that while the trial Court is required to record the statement of the accused under section 342, Cr. P. C. in the form of questions and answers, a Magistrate recording a confession under section 164 read with section 364, Cr. P. C. would preferably record it in a narrative form. This is so because the Magistrate "is wholly unaware of what the prisoners may have to say."
In the instant case, apparently, the Magistrate incorrectly stated that the statement (Exh. P. L.) was made by Mst.
Bano in answer to his questions and not in a narrative form. The confessional statement recorded in a narrative form will not be vitiated merely because it is recorded in a narrative form.
Accordingly, we conclude that Exh. P. L. is inadmissible in evidence.
18. Dr. Ahmad Ghulam Muhammad observed six injuries on the lips etc. of the deceased and further observed that brain, larynx and trachea, both the lungs etc. were congested. Accordingly, he concluded that the death was due to "asphyxia as the result of suffocation, due to injuries Nos. 1 to 6 caused by forcible pressure and closure of the mouth and nose." These observations were made on the 21st October 1967. We know from the inquest report (Exh. P. G.) prepared by A. S. I. Ata Muhammad (P. W. 15) on the 20th October 1967, that he observed an injury on the lower lip, which was described to have been caused by falling a day earlier i.e., on 19-10-1967. Abdul Hamid (P.W. 11) stated as below :-- "My son Muhammad Saeed received injuries on his mouth by a fall on the ground one day before his murder."
The doctor, on cross-examination, stated as follows :-- "Asphyxia can also be caused by drowning but there the signs will be different................ The tongue was inside the mouth.
There was no need of examining the same. If one falls on the face there is more likelihood of injuries to occur on the nose and forehead. However, I cannot rule out the possibility of these injuries to have been caused by falling."
If the doctor could not rule out the possibility of the injuries by falling and the father of the deceased affirmed that the injuries were the result of a fall, it was very necessary to ascertain whether the asphyxia noticed by the doctor could be consistent only with suffocation and was incompatible with the hypothesis that it was asphyxia due to drowning. It is noteworthy that the Investigating Officer, on receipt of the post-mortem examination report, did not make any further inquiry from the doctor bringing it to his notice that the injury on the lip, according to Abdu! Hamid (P. W. 11) had been caused by a fall, 24 hours earlier than the death. Although the doctor has given a firm opinion that it was asphyxia due to suffocation and was not asphyxia due to drowning, yet he had not given the basis for his opinion. The conclusion indeed becomes questionable if the injuries, which apparently were the cause of suffocation, were attributed to a fall one day earlier.
The medical opinion, therefore, leaves much to be desired. Such doubtful medical evidence could hardly furnish corroboration for a judicial confession, since retracted.
19. Hamid Khan (P. W. 8) stated that he saw the appellant signalling the deceased into her house at about 10-45 or 11 a.m. The learned Additional Sessions Judge disbelieved the recovery of the kachha (P. 6) and the shoes (P. 7/1-2). Learned counsel for the State did not question this conclusion. Once this conclusion is accepted, it militates against the presence of the child in the house, immediately before he was killed. The site plan (Exh. D. D.) would show that the appellant's house and the house of Abdul Hamid (P. W. 11) are separated only by the house of Naimat Ali. In other words, the deceased would be playing about this place naturally. As regards signalling to the deceased, Hamid Khan (P. W. 8) stated as below :-- "I do not remember if I stated to the police or not that Mst. Bano was calling Saeed by signalling her hand. (Confronted with his police statement Exh. D. A. where it is not so recorded)."
Hamid Khan (P. W. 8) admitted that he made a statement before the police on the 21st October 1967. In Exh. D. A. he merely stated that Muhammad Saeed accompanied Mst. Bano towards her house. As P. W. 8 he made an improvement inasmuch as he additionally referred to signalling and further that "Saeed deceased then entered the house of Mst. Bano. Mst. Bano took him back into her house".
The incriminating improvement is too obvious. We know that the death of Muhammad Saeed was known in the locality on the 20th October 1967, by 12-30 p.m. and the police was investigating the case by 9-30 p.m. Hamid Khan (P. W. 8) being a neighbour and capable of furnishing circumstantial evidence of "the last seen" should have hurried to inform the parents of the deceased and the police. We, however, find that he withheld his statement for about 24 hours. This makes his statement suspicious indeed.
20. Even if the confessional statement (Exh. P. L.) is admitted in evidence, it can be acted upon only if it is corroborated in material particulars. Learned counsel for the State pointed out that it was corroborated by other evidence in the following particulars :--
(1) The appellant referred to the quarrel with Mst. Rashidan 10 or l2 days before the occurrence. This is corroborated by Mst. Rashidan.
(2) The appellant stated that Mst. Rashidan tauntingly referred to the illicit relations between the appellant and Abdul Hamid (P. W. 11) husband of Mst. Rashidan. Abdul Hamid and Mst. Rashidan corroborated this matter.
(3) The appellant stated that the deceased was present close to her house on Friday, at about noon. This is corroborated by Hamid Khan (P. W. 8).
(4) The appellant stated that she killed the deceased by closing his mouth and nose, this is corroborated by the medical evidence.
(5) The appellant stated that she threw the dead body in the pond closeby. This is corroborated by the recovery of the dead body from the tank closeby.
Before the confession was made, the dead body had been discovered lying close to the tank. We have seen above that the medical evidence is not above question. Abdul Hamid (P. W. 11) in the first information report, did not suspect anybody much less the appellant. In the statement (Exh. P.
F.) he did not refer to the illicit relations with her. The same remarks may be made regarding the statement made by Mst. Rashidan.
We know from the proceedings that the appellant made the first ever confession to Muhammad Yusuf (P. W. 9) and Irshad Ahmad (P. W. 10) on the 22nd October 1967, at about 11 a.m. Mst. Rashidan (P. W. 6) stated that a few days before the occurrence, the appellant, as a result of a quarrel, abused her and that she threatened to teach her a lesson. On the 21st October 1967, Mst. Rashidan suspected the appellant of her complicity in the murder of the deceased. Abdul Hamid, who knew all that had passed between his wife and the appellant, did not suspect the appellant, when he made the report Exh. P. F. The alleged - recoveries of the kachha (P. 6) and the shoes (P. 7/1-2) were disbelieved. Thus all that was mentioned in the confessional statement was already known to the police. It was pointed out in the case reported as In re : Magegowda (1) as follows :-- "Much of the force of the confessional statement is taken away if what is stated in the confession was already known to the police before the confession was recorded." ln other words, there is nothing independent which came to light as a result of the confession and which could corroborate the confession. On the contrary we notice that there has been a good deal of padding in the case. The learned Additional Sessions Judge disbelieved the recoveries of the kachha and the shoes. He also disbelieved the extra-judicial confession. The appellant was hardly expected to make a confession to Muhammad Yousuf and Irshad Ahmad P. Ws. who were not B. D. Members of her ward and were not known to her before. We know that on the 21st October 1967, there was only "suspicion" against the appellant. On the 22nd October 1967, the police collected evidence regarding extra-judicial confession which was discarded. On the 23rd October 1967, the police secured the judicial confession. Apparently, the police had not collected affirmative evidence which was likely to establish the case against the appellant. In the circumstances, it is beyond comprehension why on the 23rd October 1967, the appellant decided to make a confession before a Magistrate. As analysed above, the alleged judicial confession was not shown to have been voluntarily made. Besides, it suffered from defects of form and substance. In any event, it was retracted at the earliest opportunity. The confession was not corroborated by independent evidence in any material particulars. It follows that it is unsafe to accept the same and rest the appellant's conviction on it.
21. In view of what has been stated above, the conviction and the sentence are set aside and the appeal is accepted. The appellant is on bail and is discharged of the bail bond. . [6]