1. ' Appellants Karam Din and Kajilo were tried before the learned 1st Additional Sessions Judge, Sukkur under section 302/34, P.P.C. For committing murder of one Saifur Rehman who has convicted and sentenced them to suffer imprisonment for life and to pay fine of Rs,5,000 in default to suffer R.I. For one year. They have been further ordered to pay compensation of Rs,5,000 each or in default to suffer further R.I. For one year vide judgment dated 28-2-1987.
2. ' The brief facts of the prosecution case are that on 18-2-1987 A.S.I. Abdus Sattar of P.S. Ghotki lodged report on behalf of the State which reads as under:- "On behalf of the State the complaint is that today accused Karam Din son of Pehlwan by caste Mehar appeared before us with blood-stained Lathi and stated that he and his maternal-cousin Kajilo have killed Saifur Rehman on the suspicion that he was on illicit terms with Mst. Methi wife of Saindad Mehar and daughter-in-law of Kajilo and that he has left the corpse with Kajilo. His statement was recorded in presence of witnesses Lutuf Ali son of Abdul Khaliq Wasoo and Mohammad Sachal son of Darwesh Soomre. The gist of his statement is as under:- 'I Karam Din son of Pehalwan by caste Mehar resident of village Own, Deh Damano Taluka Ghotki state that last night at about mid-night time I armed with Lathi went to look after my water of tube- well, leaving my Marote Kajilo to lookafter his cattle in his house. At mid-night time after looking after the water of tube-well, when I returned and reached at the door which is situated on the west, I saw on the electric light, one person standing on which I enquired as to who he was on which Kajilo also woke-up. He also had a Lathi in his hand. I identified that man on the electric light as Saifur Rehman son of Sher Mohammad Punjabi, and I gave him Lathi blows on his head. In the meantime Saifur Rehman ran towards the garden, I and Kajilo followed him and approached him at the Wahi of tube-well where Saifur Rchman fell down. I and Kajilo reached him and started giving Lathi injuries to him and he died on account of the Lathi injuries. That deceased Saifur Rehman was restrained from coming to our house because we were suspecting him to be on illicit terms with Mst. Methi wife of Saindad. I have made Kajilo to sit over dead body, and I produce the blood-stained Lathi. We both in furtherance of common intention have caused the death of Saifur Rchman on account of suspicion of having illicit terms with Mst. Methi."
3. ' The F.I.R. Has been produced as Exh.6-A.
4. ' After registering the case on the basis of statement of appellant Karam Din, A.S.I. Abdus Sattar arrested him in presence of Mashirs Lutuf Ali and Muhammad Sachal. He also recovered blood- stained Lathi from him. The Mashirnamas of arrest and recovery have been produced as Exhs.6-B and 6-C. He then recorded the statements of P.Ws. Mohammad Sachal and Lutuf Ali. He then visited the Wardat along with appellant Karam Din and prepared Mashirnama of Wardat in presence of Retd. Major Noor Mohammad and Abdul Hameed and the same has been produced as Exh.17-A. He then arrested appellant Kajilo under Mashirnama which has been produced as Exh.17-B. He also recovered Lathi from appellant Kajilo under Mashirnama which has been produced as Exh.17-C. Thereafter he prepared inquest report and the same has been produced as Exh.6-D. He then referred the dead body to Taluka Hospital Ghotki for post-mortem through P.C.
5. Mohammad Yousuf. He then brought the articles recovered from the Wardat to P.S. He recorded statement of P.W. Fazal Rehman and Mohammad Yousuf. On 20-2-1983 he produced both the appellants before Mukhtiarkar and F.C.M. Ghotki for recording their confessions. The Mukhtiarkar and F.C.M. Recorded confession of appellant Karam Din and thereafter the appellants were remanded to judicial custody. However, appellant Kajilo was produced before the Mukhtiarkar again on the following day for confession and the same was recorded. The A.S.I. Then handed over the papers to S.H.O. Who challaned the case.
6. ' A formal charge was framed against the appellants to which they pleaded not guilty.
7. ' At the trial prosecution examined A.S.I. Abdus Sattar P.W.1, he has produced F.I.R. As Exh.6-A, Mashirnama of arrest of appellant Karam Din Exh.6-B recovery of Lathi from Karam Din Exh.6-C, inquest report as Exh.6-D and Chemical report Exh.6-E. Fazal Rchman P.W.2, Mohammad Yousuf P.W.3, P.C. Mohammad Yousuf P.W.4, Dr. Amanullah Sheikh P.W.5, he has produced the post- mortem report as Exh.10-A. Tapcdar Ghulam Nabi P.W.6 he has produced the sketch as Exh.11-A; Mashir Lutuf Ali P.W.7, (he has not supported the prosecution, 164, Cr.P.C. Statement of Lutuf Ali Exhs.13-A, S.H.O. Mohammad Siddique P.W.8, Mr. Kazi Nooruddin, Mukhtiarkar and F.C.M. P.W.9 he has produced the confessions of the appellants as Exhs.15-A and 15-B, 164, Cr.P.C. Statement of P.W.
8. Mohammad Sachal as Exh.15-C, Major Retd. Noor Mohammad P.W.10, he has produced the Mashirnama of Wardat as Exh.17-A, Mashirnama of arrest of appellant Kajilo Exh.17-B and recovery of blood-stained Lathi Exh.17-C, Jailor Iqbal Ahmad P.W.11, he has produced the entries from jail register regarding the production of appellants by Police at judicial lock-up as Exhs.18-A to 18-C, Mohammad Sachal P.W.12.
9. ' After the close of the prosecution case statements of the appellants were recorded in which they denied the allegations. About the judicial confessions it was alleged by them that they were detained at P.S. Ghotki alongwith their womenfolk and were maltreated. That they were forced to make confessions.
10. ' Dr. Amanullah P.W.5 had conducted post-mortem on the dead body of Saifur Rehman and according to him on external examination he found the following injuries on his person:-
(1) Two lacerated wounds right side forehead size (a) 3 c.m. x 1 c.m. (h) Two c.m. x 1 c.m. On examination fracture of underneath bone.
(2) Two lacerated wounds left side forehead size (a) 5 c.m x 1 c.m. (b) Three c.m. x 1 c.m. On examination fracture of underneath bone.
(3) Lacerated wound top of head size 3 c.m. x 1 c.m. Examination fracture of underneath bone.
(4) Lacerated wound back of head 2 c.m. x 1 c.m.
(5) Lacerated wound blow chin 7 c.m. x 2 c.m. On examination fracture of underneath bone.
(6) Lacerated wound right index finger 2 c.m. x 1 c.m. On examination fracture of underneath bone.
11. ' On internal examination he found the following injuries on his person:- ' Skull:- Already described in external examination.
12. ' Chest:- No visible injury, not open.
13. ' Abdomen:- All visceras healthy and normal.
14. ' Stomach contained digested rice and normal fluid.
15. ' A.S.I. Abdul Sattar complainant P.W.1 has supported the contents of his F.I.R. And the facts recording investigation carried on by him which have been mentioned in the earlier part of this judgment. In cross-examination he has denied a suggestion that he had inspected the Wardat on the information of P.W. Fazlur Rehman. He has also denied that two accused were arrested from their village. He has also denied that the womenfolk of the accused were confined at P.S. And that the accused were maltreated and forced to make confession. He has further deposed that he has mentioned in diaries that on 18-2-1983 he could not produce the accused for confession before Mukhtiarkar as it was Friday and that on 19-2-1983 Mukhtiarkar and S.D.M. Were not present, while Civil Judge refused to record the confession. However, he could not produce those letters. There is also Court of Mukhtiarkar, S.D.M. And Civil Judge at Pano-Akil. He has denied a suggestion that he had mentioned all these facts in the diary to enable him to get the confession recorded from Mukhtiarkar and F.C.M. Ghotki, the Magistrate of his choice. He did not remember the time when he had produced the accused before Mukhtiarkar and F.M.C. Ghotki for their confession. Mukhtiarkar informed him in the afternoon that he was not able to record the statement of Kajilo. Till the statement of Karamdin was recorded accused Kajilo was sitting in the Court of Mukhtiarkar. Both the accused were remanded to judicial custody simultaneously. He received message from Mukhtiarkar regarding confession of accused Kajilo at 3/3-30 p.m. He had got the statement of witnesses recorded under section 164, Cr.P.C. After the confession of accused Karamdin. He could not say as to when S.H.O. Had sent Lathis to the Chemical Examiner.
16. ' Fazalur Rehman, P.W.2, has depoccd that deceased Saifur Rehman was his brother. On 17-2-1983 he, P.W. Mohammad Yousuf and deceased Saifur Rchman were working at sugarcane crushing machine near their village. At about 10-00/11-00 p.m. He and P.W. Mohammad Yousuf went to their houses leaving deceased Saifur Rchman at the machine to look after it. On 19-2-1983, in the morning the police came and informed them that his brother Saifur Rehman has been murdered by Karamdin and Kajilo in the garden near the village of the accused. They went to the place of Wardat and he and P.W. Mohammad Yousuf found that his brother was lying dead. He was having injuries on his head and other parts of the body. They also found accused Kajlo present there. On their inquiry, Kajlo informed that they had suspected the deceased to be on illicit terms with Mst.
17. Maithi. The police then took them, the dead body and accused Kajlo to P.S. Ghotki alongwith accused Karamdin. In cross-examination he has deposed that there was no enmity between them and the accused. Accused Kajilo was standing near the deceased when they reached at Wardat alongwith police. The police had first of all told them that accused Karamdin had informed the police that he and Kajilo had murdered Saifur Rchman. Accused Kajilo was arrested there by the police. Accused Kajilo had told them about the murder when they were going in company of Police to Wardat. He did not know if the police had arrested other persons also from the village of accused persons besides the above accused.
18. ' The evidence of P.W. Mohammad Yousuf was identical to that of P.W. Fazalur Rchman. He has further deposed that accused Kajilo did not disclose as to with whom the deceased was suspected to be on illicit connection. Police did not cross-examine him about the incident. The dead body was lying in the garden.
19. ' Tapedar Ghulam Nabi had prepared sketch of the Wardat and the same has been produced as Exh.11-A. According to him, the house of the deceased was situated about five furlongs from Wardat while houses of the accused were situated about 179 feet from the place of Wardat.
20. ' Mashir Lutuf Ali has not supported the prosecution and, therefore, he was declared hostile and cross-examined by learned A.P.P.
21. ' S.H.O. Mohammad Siddique has deposed that he had verified the investigation conducted by A.S.I.
22. Abdul Sattar had challaned the accused before the Court.
23. ' Qazi Nooruddin Mukhtiarkar and F.C.M. Has deposed that on 20-2-1983, he was Mukhtiarkar and F.C.M. Ghotki and on that day police produced P.W. Lutuf Ali and Mohammad Sachal for recording their 164, Cr.P.C. Statement which he recorded. He had also recorded the confession of accused Karamdin on 20-2-1983. On 21-2-1983 he had recorded the confession of accused Kajilo He has got removed the hand cuffs of the accused and the police was ordered to leave the Court. He had informed the accused that they were before F.C.M. And that they were produced for their confessions. He had also warned the accused that they were not bound to give their confession. He also informed them that if they will not give confession they will not be remanded to police custody. He had given three hours' time for reflection to the accused on both days. The confession of accused Karamdin has been produced as Exh.15-A. He had remanded accused Kajilo to judicial custody on 20-2-1983 for want of time and had sent for him through jail police on 21-2-1983. In cross-examination he had deposed that he did not remember if he remanded accused Kajilo to judicial lock up at 9-00 a.m. Or after recording the statement of accused Karamdin for want of time. He remanded accused Kajilo to judicial lock-up in writing on 20-2-1983. He did not remember if he recorded reasons for his remand separately but he had recorded this fact in his confessional statement. He had recorded the statements of witnesses under section 164, Cr.P.C. Before he recorded confession of accused Karamdin. On 20-2-1983, both the accused were produced before him for their confession at 9-00 a.m. He directed the police to leave one of the accused outside on 20-2-1983 and asked the police to produce accused Karamdin only for recording confession.
24. Remand order of Kajilo was in writing. He denied a suggestion that accused Kajilo had refused to make confession, therefore, he handed him over to police. He had important revenue work and, therefore, did not record the statement of Kajilo on the same day. The judicial confession was more important than any other revenue work.
25. ' The learned trial Judge while relying upon tile subsequent conduct and the statement made by the appellant Karamdin before A.S.I. Abdul Sattar, production of blood-stained Lathis, chemical report and their judicial confessions convicted the appellant as described above. The present appeal is directed against the said judgment of conviction.
26. ' Mr. Mohammad Hayat learned counsel appearing for the appellants has contended that the statement made by the appellant Karamdin before A.S.I. Abdul Sattar was inadmissible in evidence being statement before a Police Officer and cannot be relied upon. He has further contended that the Lathis are alleged to have been recovered from the appellants on 18th February, 1983, they were despatched to the Chemical Analyser for examination and report on 1-3-1984, and were received by him on 18-2-1984 there was no explanation for this delay of one year, and as such no reliance could be placed on the evidence of production/recovery of blood-stained Lathis. As far as the judicial confessions were concerned, he has contended that the same were retracted. That the confession of appellant Karamdin was recorded within the hearing of appellant Kajilo and that the confession of appellant Kajilo was recorded three days after his arrest and, therefore, no reliance could be placed on the same. He has further contended that as far as the confession of appellant Karamdin was concerned it was obtained by inducement and threat inasmuch as the Lathis of the accused were called at the police station and they were pressurised to make the confession which is clear from the evidence of P.Ws Lutuf Ali and Mohammad Sachal. ' Mr. Zaheer Qureshi, learned counsel appearing for the State has contended that the appellants had made judicial confession before a First Class Magistrate and they appeared to be true and voluntarily and that the above confessions were corroborated by recovery of blood-stained Lathis from the appellants. He, however, agreed that the statement made by appellant Karamdin before A.S.I.P. Abdul Sattar was inadmissible in evidence. However, in view of the judicial confession and recovery of blood-stained Lathis, he was of the view that the appellants were rightly convicted by the learned trial Judge.
27. ' Mr. Fazaldin, learned counsel appearing for the complainant has adopted the arguments of Mr. Zaheer Qureshi and supported the conviction of the appellants.
28. ' I have considered the contentions of the learned counsel and have carefully gone through the R & P of the case. There is no direct evidence against the appellants in the present case. As far as the circumstantial evidence, relied upon by the prosecution against the appellants was concerned, I would like to discuss each piece of evidence separately.
29. ' So far the unnatural death of deceased Saifur Rehman was concerned, it has been proved through medical officer Dr. Amanullah Shaikh, P.Ws. Fazalur Rchman, Mohammad Yousuf, and A.S.I.Abdul Sattar. Even the learned counsel appearing for the appellants had not disputed this aspect of the case and therefore, it stands proved beyond reasonable doubt that the deceased Saifur Rchman died an unnatural death.
30. Adverting to the evidence produced by the prosecution I will first take up the statement of appellant Karamdin recorded by A.S.I. Abdul Sattar which has been incorporated in the F.I.R Ex.6-A.
31. The alleged statement was admittedly made by appellant Karamdin before A.S.I.P. Abdul Sattar and it is in the nature of confession and, therefore, it has been rightly argued by Mr. Mohammad Hayat Junejo, and conceded to by Mr. Zaheer Qureshi, that the same was inadmissible in evidence.
32. In this connection it will be appropriate to refer to section 25 of the Evidence Act, which reads as follows:- "Section 25: No confession made to a Police Officer shall be proved as against a person accused of any offence."
33. ' The language of present Article 38 of the Qanun-e-Shahadat 1984, is identical to that of section 25 of the Evidence Act.
34. ' In the case of Akram v. The State 1977 P Cr. L J 434, it was observed by a Division Bench of this Court that:- "The other witness examined by the prosecution and who supported the circumstantial evidence was P.W. Lal Khan S.H.O. Jhudo Police Station. He had registered the F.I.R. On the basis of the statement of the appellant himself, and according to him, the appellant after being arrested had led them to his house and had pointed out the corpse of his sister which was lying on the floor inside one of the rooms. The statement of the appellant incorporated in the F.I.R. Which is in the nature of confession is not admissible in evidence under the law and cannot, therefore, be considered and in view of the details of the place of incident and the fact of the murder being already within the knowledge of the S.H.O., there was in fact no discovery of these facts mad,' by the appellant after his arrest."
35. In view of the above discussion, I am of the considered at the statement made by the appellant Karamdin before A.S.I. Being in the nature of confession, was in-admissible in evidence.
36. ' RECOVERY OF BLOOD-STAINED LATHIS.
37. According to the prosecution, appellant Karamdin had produced a blood-stained Lathi in presence of Mashirs Lutuf Ali and Mohammad Sachal on 18-2-1983 at 9-20 a.m. Both the Mashirs have not supported the factum of production of Lathi by appellant Karamdin. However, A.S.I. Abdus Sattar has supported the recovery of blood-stained Lathi from appellant Karamdin. As far as recovery of blood stained Lathi from co-accused Kajilo was concerned, it has been supported by Mashir Major (Rtd.) Noor Mohammad and A.S.I. Abdus Sattar. The Lathis are said to have been produced by the appellant on 18th February 1983, but the same were sent to the Chemical Examiner on 18-2-1984 i,e, after one year and unfortunately there was no explanation from the prosecution about this inordinate delay in sending the articles. A.S.I. Abdul Sattar has not stated in his deposition that he had sent these Lathis to the Chemical Examiner for examination and report. However, in cross- examination he has stated that he cannot say as to when S.H.O. Had sent the Lathis to Chemical Examiner. So far evidence of S.H.O. Mohammad Siddiq was concerned, he does not say that he had sent the articles to the Chemical Examiner. In the case of Dost Mohammad v. The State PLD 1982 Kar. 1000; it was observed by a D.B. Of this Court while relying upon Gulzar and 4 others v. The State 1968 P Cr. L J 538; and Mohammad Salim v. The State 1976 P Cr. L J 419 that:- "It has been emphasized on behalf of the accused appellant by his learned counsel that delay of two months and three days, in sending the incriminating articles to the Chemical Analyzer in the present case, would be fatal to the prosecution case as possibility of manipulation of such incriminating articles in the circumstances cannot be ruled out. It has further been emphasized that in any case no effort has been made to ascertain the grouping of the blood on the articles, to show that they were stained with the blood of the deceased. For the reasons mentioned above, therefore, no safe reliance can be placed this piece of evidence of recoveries of the incriminating articles.'
38. In view of the fact that two Mashirs namely, Lutuf Ali and Mohammad Sachal have not supported the recovery of blood stained Lathi from appellant Karamdin, the fact that neither Investigating Officer Abdul Sattar A.S.I.P. Nor S.H.O. Mohammad Siddiq have stated in their evidence as to who had sent the articles to the Chemical Analyser, and since there was inordinate delay in sending the article to the Chemical Examiner, no reliance can be placed on the evidence of recovery.
39. ' JUDICIAL CONFESSION.
40. ' As far as the judicial confession of appellant Kajilo was concerned, it is the prosecution case that he was arrived on 18-2-1984 whereas his confession was recorded on 21-2-1984. The A.S.I.P. Has admitted in cross-examination that while statement of accused Karamdin being recorded by the Court accused Kajilo was sitting in the Court of Mukhtiarkar. That both the accused were remanded to judicial custody simultaneously. In the case of Dhani Bux v. The State PLD 1975 SC 187; it was observed by their Lordship of Supreme Court that:- "I am afraid, the way of confessional statement of Dhani Bux appellant was recorded right in view of his co-accused at a distance of about 30 feet from him possibly within his ear-shot which possibility was of course denied by the Magistrate and at a time when the confessional statement of the acquitted accused had already been recorded in the admitted presence of Dhani Bux who was made to stand in corner of the Court Room, it is difficult to infer that the appellant remained altogether uninfluenced by the conduct of his co-accused in the matter of his own confessional statement. It is not difficult to appreciate the psychological influence on the mind of the appellant or may be even his guilty conscience, of what had already transpired in Court in his view and within his ear-shot. The preceding confession of his co-accused must necessarily have exercised some persuasive if not compelling force on his mind to follow suit. In that view of the matter the confessional statement of the appellant cannot be characterized as free and voluntarily having been made in an absolutely free and uninhibited manner."
41. ' Moreover the confession was recorded on the third day of the arrest of appellant Kajilo, although the learned Magistrate has stated in the Court that there was no time left and, therefore, he did not record the confession of appellant Kajilo on 20-2-1983. However, it was suggested to him in cross- examination that accused Kajilo had refused to make confession, therefore, he deliberately remanded the accused to judicial custody in order to oblige police to which he replied in negative.
42. But the explanation given by him for not recording the confession of accused Kajilo on the same day appears to be absurd inasmuch as according to Mr. Qazi Nooruddin the learned Magistrate, he had some important Revenue work and, therefore, did not record the statement of accused Kajilo on the same day. He has admitted in cross-examination that recording confession was more important than any other. The case of the appellant in his statement was that she and the co- accused were detained at police station Ghotki alongwith their womenfolk, they were maltreated and forced to make confession. In this connection Mashir Mohammad Sachal has supported the defence of appellant. According to him, he was called by S.H.O. Through constable he saw that police was beating two persons and was insisting them to admit the guilt of murder. He has admitted in cross-examination that family members of womenfolk of the accused were also confined in police custody, when accused were being beaten. The accused were crying and pleading for their innocence. This witness was not declared hostile by the A.P.P. Nor he was cross- examined. In view of the above discussion and legal position I am of the considered view that the confession made by appellant Kajilo was the result of inducement and pressure and, therefore, the same is ruled out of consideration. I.
43. ' Adverting to the judicial confession of appellant Karamdin on one hand it is retracted and on the other hand it is not corroborated from any other source. It has been admitted by P.W. Mohammad Sachal that the appellants were maltreated and pressurised at the police station. Their womenfolk were also called at police station by the police. The perusal of the confession will show that learned Mukhtiarkar did not make real endeavor to find out whether the confession was true and voluntarily. In this connection it will be worthwhile to mention that the appellant was not asked the following questions:-
(1) Whether his womenfolk were called at the police station and it is suspected in order to pressurise him to make confession?
(2) Whether he was promised to be made as approver.
(3) As to why he was making confession?
44. The certificate appended by the learned Mukhtiarkar does not show that he had given the requisite warning to the appellant which he has mentioned on a separate sheet-paper mentioning it as page No,1 which has created further doubt I with regard to genuineness of the confession. There is another aspect of the case which cannot be overlooked inasmuch as the incident took place in Taluka Ghotki where there are Courts of Civil Judge and F.C.M. S.D.M. And Mukhtiarkar and F.C.M. But surprisingly the appellants were not produced before any of the Court on 19-2-1983 but they were produced on 20-2-1983, i,e, I after 48 hours. The explanation offered by A.S.I.P. Abdus Sattar that S.D.M. Mukhtiarkar and F.C.M. Were not available on 19th February, while the Civil Judge refused to record confession appears to be absurd and unreliable.
45. ' In the case of Ramzan v. The State PLD 1966 (W.P.) Kar. 242, it was observed by this Court that:- "Retracted confession cannot be used against maker unless corroborated by any material particulars. Retracted extra-judicial confession cannot corroborate retracted judicial confession."
46. ' In the case of Tooh v. The State 1975 P Cr. L J. 440, it was observed by a Division Bench of this Court that:- "The confession was recorded on the 3rd day of the arrest of the accused. The delay of over 24 hours would normally be fatal to the acceptance of a judicial confession. In the circumstances, it must be ruled out of consideration."
47. ' In view of the above discussion and the legal position it will not be safe to convict the appellant Karamdin on the basis of his retracted judicial confession. The above appeal is, therefore, allowed, the conviction and sentences of the appellant are set aside and they are acquitted of the charge.
48. ' I had decided the above appeal on 6-10-1988 by a short order and these are the reasons for the same.