1. The appellant was charged alongwith his son Ibrahim under section 302 read with section 34 P.P.C.
2. And tried before the learned Additional Sessions Judge, Thatta, who has- convicted the appellant under section 304- P.P.C. And sentenced him to suffer RI for five years and to pay fine of Ids. 2,000 or in default to suffer further RI for one year. He was further directed to pay compensation of Rs.
3. 2,000 or in default to undergo further R.1. For one year, while co-accused Ibrahim was acquitted vide Judgment dated 24-10-1987.
4. The brief facts of the prosecution case are that on 7-5-1986 one Ghulam Hussain son of, Natho lodged a report at P.S. Mirpur Sakro alleging therein that he and his father t4atho were working as Barbers. Yesterday in .The evening his father told him that he was going to Boharo and would not return home during night. In the morning at 8.00, a.m. Mohammad A.I Khaskeli of Kund Baghar called him, acid informed 1kim in presence of Abdul Ghani, Abdul Aziz and Sher Mohammad that while -he -was going towards Boharo in the morning alongwith katcha path and when lie reached at irrigation abandoned canal, he found the dead body of Natho lying by the side of 'Lai' treks, On receipt of the above information from Mohammad A.I, complainant Abdul Ghani, Abdul Aziz and Sher Mohammed went to the place, which was pointed out to them by Mohammad A.I. They found the dead body of Natho lying near 'Lai' trees. They found throttling marks on his neck and marks of tying around the left wrist, scratches on both legs from knees upto feet and other injuries. The ground at the scene of offence was solid grassy therefore no footprints were visible near the dead body. Leaving the above witnesses at the dead body he went to the B.S. And lodged his report. He has further stated in the F.I.R. That he suspected Mohammad A.I, Allah Dino, Ibrahim, Uris, Khameeso. Khaskheli and others. Prior to this his father used to visit their village and the above persons used to prohibit him from visiting their village. This F.I.R. Was recorded by A.S.I. Mohammad Hanif PW-6 and the same has been produced as Ex. 7-A. After recording the F.I.R. A.S.I. Mohammad Hanif went to the Wardat, secured blood--stained earth and sealed the same. He prepared the memo of Wardat in presence of mashirs Raza Mohammad son of Ismail and Raza Mohammad son of A.I Mohammad and the same has been produced as Ex. 9/A. He then prepared inquest report which has been produced as. Ex. 9/B. Thereafter he despatched the dead body to Medical Officer Mirpur Sakro for post-mortem through P.C. Soomar. He recorded the-statements of PWs Abdul Ghani, Abdul Aziz and Sher Mohammad. He then called Paghi Suleman through Constable Rehmat and showed him foot-prints at the wardat. He also recorded his statement. He received spy information that deceased had left his Motor Cycle near mosque. He went there and secured the Motor Cycle under mashirnama which has been produced as Ex: 9/C. Hr. Then went to P.S. Sakro where P.C. Soomar, produced clothes of the deceased which he secured- under mashirnama which has been produced as Annexure 9/B. He then handed over the papers to S.H.O. On 9-5--1987.
5. S.H.O. Irhsad Alt verified the investigation carried on by the A.S.I. Mohammad Hanif. He recorded statements of PWs Khan Mohammad, Ishaque and Adam at. Boharo. On 22-5-1986 he arrested appellant and his son Ibrahim in presence of ashirs Raza Mohammad and A.I Mohammad and the mashirnama has been produced as Ex. 9/E. On the same day he produced the accused before Mukhtiar kar Mirpur Sakro for recording their confessions. He also produced the accused before Head Munshi Ahmed Khan for holding footprints test in his presence. Thereafter the appellant and the co-accused were challaned: A formal charge was framed against the accused to which they pleaded not guilty.
6. At the trial prosecution examined complainant Ghulam Hussain PW-1, he has produced the F.I.R. As Ex. 7/A. Abdul Ghani son-in-law of deceased PW--2, Mashir Raza Mohammad son-in-law of deceased PW-3, he has produced the mashirnama of wardat as Ex. 9/A, inquest report Ex. 9/B, mashirnama regarding securing of Motor Cycle Ex. 9/C, mashirnama regarding securing of clothes of deceased produced by P.C. Soomar Ex.9/D, mashirnama of arrest of the accused Ex. 9/E and mashirnama of footprints -test Ex. 9/F, Rasool Bux Baloch Mukhtiar kar and FCM Mirpur Sakro PW-4, he had recorded the confessions of the two accused and has produced the same as Ex. 11/f1 and Ex.
7. I1/B, Paghi Suleman PW-5, Mohammad Hanif A.S.I. PW'-6, Mohammad Soomar PC Corpse bearer PW-7, S.H.O. Irshad A.I, PW-8, Head Munshi Ahmed Khan PW-9; Dr. Abdul Khaliq PW-10, he has produced the post-mortem report as Ex. 17/A.
8. The evidence of Dr. Abdul Khaliq PW-10 shows that on external examination he found ligature marks around the neck, contusions over nose and contusion over right eye of deceased Natho son of Khamoo. On internal examination he found that major blood vessels of neck were congested, bleeding through nose and car, paincers congested, liver congested and pale, spleen congested, kidneys congested, penis retracted and bleeding through penis, stomach contained mucus. Small intestine contained semi-digested food. Large in Iestine contained little amount of faecal matter.
9. He also found contusion on both the knees.
10. From external as well as internal examination of the dead body of Natho Khan son of Khamoo he was of the opinion that death was caused due to strangulation and obstruction of air, passage.
11. I have heard the learned counsel for the-appellant, the learned counsel for the State and have gone through the R sc P of the case.
12. It was contended by the learned counsel for the appellant that there was no direct ocular evidence to connect the appellant with the a4acged crime. That the only evidence available with the prosecution was foot prints test and retracted judicial confession. As far as the footprint test was concerned, the learned trial Judge has discarded the same. So far as the confession was concerned it was retracted and the learned Magistrate Mr. Rasool Bux who recorded confession did not inform the appellant that he was before the Magistrate and therefore even on this score alone no reliance could be placed on confession.
13. The learned Counsel for the State has contended that in view of the fact that confession does not show that the appellant was informed by the Magistrate that he was before the Magistrate and the same was retracted, he would not support the conviction.
14. I have considered the contentions of the learned counsel. There is total absence of direct evidence to connect the appellant with the alleged crime. As far as footprint test was concerned, it has not been relied upon by the learned trial Judge and for cogent reasons. The mashirnama of wardat shows, that there was grass at the place of wardat and footprints were not visible and therefore the learned judge was right in discarding the evidence of footprint test.
15. Adverting to the next piece of evidence i.e. The retracted judicial confession, it will suffice to say that the confession does not show that the appellant was informed by the learned Magistrate Mr. Rasool Bux Baloch that he was before a Magistrate; although Mr. Rasool Bux Baloch stated in his evidence that he had informed the appellant that he was before a First Class Magistrate. In the case of Ramzan v, The State-PLD 1966 W P Kar. 242 it was observed by this Court that: "Cr.P.C. Section 164 (3)-nothing on record to show that warning contemplated by section 164(3) had been given to accused, confessional statement, held, inadmissible though Magistrate recording confession deposed at trial that such warning had been issued."
16. "Courts must look for strict compliance of subsection (3) of section 164 CrPC before proceeding to determine the voluntary character of the confessional statement. It has been noticed that the Magistrates who arc charged with a duty of recording confession do not take the process of recording confession seriously with the result that they invariably act in mechanical way without applying their mind as to the legal prerequisites to be observed and the manner in which their compliance is to be made. It is high time that the procedure which is followed in recording confession is reiterated for, their guidance. Magistrates would be well-- advised to follow the procedure which is given below:- "As soon as accused is produced for confession, his handcuffs should be removed and all the police officers should be turned out from the Court room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the police who had produced him before Court but would be remanded to judicial lock-up, He should then be given sufficient time to ponder over the matter. Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then following questions should be put to him:- (i)For how long have you been with police?
17. (ii)Has any pressure been brought to bear upon you to make confession?
18. (iii)Have you been threatened to make confession!
19. (iv)Has any inducement been given to you? (v) Why are you making this confession?
20. (vi)Have you been maltreated by police?"
21. After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such questions to him, as are, given in the printed form and then he should proceed to record his confession in verbatim."
22. Since there is no other piece of evidence available against the appellant, I allow this appeal, set aside sentence arid the conviction of the appellant, and he is acquitted of the charge. He shall be released forthwith if not required in any other case.
23. N.H.Q./A-546/K