TUFAIL ALI A. REHMAN, C. J.----The appellant in this case has been convicted by the learned 1st Additional Sessions Judge, Hyderabad of an offence under section 302, Pakistan Penal Code and sentenced to imprison--ment for life and to pay a fine of Rs. 500 or in default of payment thereof to suffer rigorous imprisonment for six months more. After we had finished the hearing of the appeal we came to the conclusion that the conviction could not be sustained and we accordingly announced judgment allowing the appeal and acquitting the appellant and I now proceed to state my reasons for taking this course.
2. The deceased Jan Muhammad, the appellant Abu Bakar and one Kamran, who was tried as a co-accused with Abu Bakar but was acquitted, were all teen-agers studying in the same school and living in the same neighbourhood that is to say Tando Wali Muhammad Mohallah in Hyderabad city. They were friendly among themselves and until the incident occurred at least, there is no evidence to indicate that the father of the deceased or anybody else suspected that there was any quarrel amongst themselves or had reason to believe that their relationship was anything other than innocent. At about 9 a. m. On the 14th July 1970, the two accused persons came to the house of the deceased and called him and to this call the elder brother of the deceased, prosecution witness Ghulam A.I, responded and in turn asked the deceased to come down as his friends were calling him. The 'deceased then left in the company of his two friends and this was seen not only by Ghulam A.I but also by their father, prosecution witness Jumo, and the witnesses Muhammad Ibrahim and Abdul Razzak who happened to be standing in the street in front of the house at the time. The deceased did not return the whole day and his parents naturally therefore got anxious and accordingly both Jumo and Ghulam A.I went to the house of Abu Bakar, the appellant, who told them that Jan Muhammad had indeed come with them but then had run away after causing injuries on his (the appellant's) hand. Despite their inquiries they could not get any further information from the appellant at that time. The night passed and the deceased, still not having returned the father and son again went to the appellant in the morning and received the same reply. On that account they came and informed Lal Muhammad, Dr. Hussain Bux, Murad A.I Shah and Muhammad Ibrahim, all of whom except the first mentioned were witnesses at the subsequent trial, and these persons then accompanied Jumo and Ghulam A.I again to Abu Bakar.
It is then said that the appellant confessed that he and the co-accused Kamran had murdered the deceased by causing him knife injuries and had thrown his corpse in the jungle on the bank of the Ph uleli Canal. He took all of them to the place and showed them the corpse which was found having numerous injuries. Murad A.I Shah waited there to keep a watch upon the dead body and the remaining went to the Hyderabad Market Police Station and there Ghulam A.I laid a first information report. This report was taken down by the Assistant Sub Inspector of Police of the Market Police Station but, since the place where the incident had occurred was not within the limits of his own police station, he informed the S. H. O. Tando Jam, Allah Bux Khan, of the incident since it was the latter police station which was concerned. Allah Bux then, it is said, rushed up to Hyderabad and, collecting a copy of the first information report, went with the prosecution party and the appellant to the place which had earlier been pointed out by the appellant and where the dead body was lying. Noting injuries on the hand of the appellant, he mentioned them in the mashirnama of the arrest and he also secured from the person of the accused an outdoor admission ticket of the Liaquat Medical Hospital in the name of the appellant. The appellant also took the police to his own house and from there produced a pair of trousers, a shirt and a knife; the clothes appeared to have the stains of human blood and these were indeed, on chemical analysis, found to be blood-stained but since the knife did not bear any such stain it was not sent for examination. The police officer continued with his investigation which of course included the recording of the state--ments of the various witnesses and also sending the appellant on the next day, that is the 16th July 1970, to a Magistrate who recorded his confession. In due course the appellant and Kamran were sent up for trial with the result which I have already stated.
3. The evidence upon which the prosecution relied for the conviction of the appellant consisted of the following 8 items :-
(a) The motive.
(b) The fact that the deceased was last seen alive in the company of the appellant.
(c) The extra-judicial confession made by him on the morning of the 15th.
(d) The fact that he pointed out the corpse.
(e) The recovery of blood-stained clothes at his instance.
(f) The recovery of a knife at his instance.
(g) The securing of a chit from his person which showed that he had got himself medically treated and the evidence of a doctor on that point; and
(h) The judicial confession.
4. So far as the evidence of motive is concerned it is to be remembered of course that it is not evidence against the appellant in the sense that its existence, in the absence of reliable evidence of the commission of the crime by the appellant, would not suffice to convict him nor would the absence of a discoverable motive suffice to exonerate him if the other evidence was both sufficient and acceptable. Nevertheless, with the exception of murders committed by lunatics or wanton murders due to some aberration of the mind, one does not normally expect that a murder would be committed without any motive, though of course it may frequently happen that the motive is not discoverable. It is of particular interest in a case like the present where the deceased and the persons charged with the crime of murdering him were known to be friendly companions and it is therefore reasonable to expect that, if indeed the appellant or the acquitted co-accused had a hand in his murder, that would be the result of something which had developed suddenly or was a matter which both the deceased and the appellant had kept carefully concealed. There is in the present case no direct evidence of motive in the sense that none of the witnesses speaks of any fact within his personal knowledge which would constitute a motive for the murder. Such evidence as we have forms part of the extra---judicial confession which the appellant is alleged to have made to the witnesses Ghulam A.I, Jumo, Murad A.I Shah and Ibrahim. The reliability of this evidence therefore must stand upon the same footing as that of the extra judicial confession itself and I therefore postpone any further consideration of the matter until I deal with the evidence relating to the alleged extra judicial confession.
5. Now the rest of the evidence consisted of that of the confession, the extra judicial confession and of various circumstances which are said to be incriminatory to the appellant. If, therefore, the conviction is to be sustained it must be based upon the confession and the circumstances alleged be used for the purpose of corroboration, or alternatively, the case must be regarded as one dependent entirely upon circumstantial evidence.
6. The learned trial Judge adopted the former course and, in that event, it has to be remembered that the judicial confession which the appellant ;;jade, even if held to be true and voluntary, was a retracted one and there--fore would normally, as a matter of prudence though not of law, need corro--boration and of this the learned trial Judge was fully conscious. The position is well recognised in a number of cases and it will suffice to quote from one of the Supreme Court cases which the learned trial Judge himself kept in mind : The State v. Minhun (PLD 1964 SC 813). In that case at page 822 their Lordships observed:- "As for the confession the High Court, it appears, was duly conscious of the fact that retracted confessions, whether Judicial or extra--judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. 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 confession, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely 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 on the Law of Evidence at page 168 (Vol. I): `It is 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 judicial confession cannot also be assailed where corroboration is found necessary, for, that would amount to utilising of one piece of tainted evidence to corroborate another piece of tainted evidence'."
7. If on the other hand the case be looked at as one of circumstantial evidence then of course the circumstances put together must not only point to the guilt of the appellant but must be inconsistent with any reasonable hypothesis which itself is consistent with the innocence of the appellant. It must also be remembered in such cases that when one talks of circum--stantial evidence the circumstances themselves, like any other fact, must be established by oral evidence and before one appraises the cumulative effect of all the circumstances, each of them must be held to be satisfactorily established. If there is any doubt about any particular circumstance then, as in any other question of fact, the benefit of the doubt must go to the appellant and that particular circumstance excluded from consideration. So also, when one is examining the quality of corroboration afforded by any circumstance, care must be taken that the circumstance in question is properly established. However, therefore, this case is looked at it is necessary to scrutinize carefully the reliability of the evidence which establishes the circumstances against the appellant.
8. The first of these circumstances, namely that the deceased was last seen alive in the company of the appellant and Kamran, I see no reason to doubt. It is deposed to not only by the first informant Ghulam A.I and the father of the deceased Jumo but also by the witnesses Ibrahim and Abdul Razzak. Of these two witnesses the former lives in the same neighbourhood while the latter is a baker, who, it is true, lives in Resham Gali (the distance of which from the neighbourhood of the deceased we are not told) but who, in the ordinary course of his actual business activities, was used to supplying baked articles to various shopkeepers including same in the neighbourhood of the deceased. The presence of these witnesses therefore when they saw the deceased going with the two accused persons is therefore natural. The fact is in itself probable as the three were much of the same age and studying together and known to be good friends. The fact is also mentioned in the first information report which was lodged by Ghulam A.I. All in all, therefore I think it is safe to hold that this particular circumstance is established.
9. In regard to 3 of the other circumstances however, namely the pointing out of the place of the offence by the appellant, the recovery of clothes at his instance and the recovery of a knife at his instance it is necessary to examine carefully the versions given by Ghulam A.I, jumo, Hussain Bux acid Murad A.I. Since these are also the witnesses who speak of the extra-judicial confession, of necessity, a discussion of their evidence will in large measure effect the extra judicial confession also. The version given by both Ghulam ;~:li and Jumo was that they paid 3 visits in all to the house of Abu Bakar and it is only upon the last occasion that he confessed the crime and volunteered to show the place where the dead body lay According to them the first time that they went was after sun set upon the 14th, on the morning of which it will be recalled that the deceased had left with the appellant and the co-accused Kamran. The only information that the appellant then gave them was that the deceased had caused an injury upon the right hand of the appellant and had then run away. Thereafter these two witnesses tried to locate Jan Muhammad but having failed and the deceased not returning during the night to the house, they again went to Abu Bakar in the morning but he told them no more than he had stated the previous evening. It is only then that they collected Lal Muhammad (not a witness in the case), Hussain Bux, Murad A.I Shah and Ibrahim and went again to~ the house of Abu Bakar and it is on this occasion that Abu Bakar at last confessed.
Now in itself the fact that Abu Bakar, although unwilling to confess on the previous two occassions, did this time confess is not necessarily incredible. The first instinct of a person who has committed a serious crime is naturally to hide it and not to admit it. On the first two visits it was only the father and the brother of the deceased who had come but on the last occasion there were a number of others and it might well be that it was on account of their pressure that he came out with the whole story. By pressure, of course one need not assume that it was any kind of threat that was being held out to him but the moral pressure which can be exerted by comparatively older men living in the locality over the appellant, who was hardly old enough to be described as a young man and was indeed little more than a boy, cannot be under rated. In fact the evidence of Jumo is to the effect that the appellant's uncle Habib, was also asked to give some clue as to the whereabouts of Jan Muhammad and that this Habib then called the father of the appellant and it was in their presence that the appellant confessed. Neither the father nor Habib are witnesses, but this also is not a matter of surprise as it is unlikely that they would have given evidence which would implicate the appellant. But the question does arise why, when, upon the first and the second occasions, the appellant did not give any real information as to the deceased, the father and the son did not attempt to make any inquiries from the co-accused Kamran. After all it was as reasonable to expect that Kamran would give information as to assume that Abu Bakar would do so. Nor again necessarily upon the first or even the second visit need the relations of the deceased have been certain that Jan Muhammad had been done away with or even entertained the suspicion. So far as they were concerned, all they knew then was that the deceased had gone in the company of persons who were friendly with him and that he had not returned. A variety of possibilities arose and not all of them necessarily were sinister in relation to either Abu Bakar or Kamran. It is true that some suspicion might have been engendered by the fact that upon the very first visit Abu Bakar claimed that the deceased had given him a knife injury and had run away, from which it might well be inferred that there had been some unpleasant-ness, to say the least, between the three. All the greater reasons then for making inquiries from Kamran but no visit to Kamran is mentioned in the subsequent first information report which Ghulam A.I lodged. Possibly on account of this fact even in his evidence he referred to no such visit. By the time the evidence came to be recorded it is obvious that some body must have woken up to this glaring improba--bility and, therefore, Jumo stated that in between the first and the second visit to Abu Bakar they went to the house of Kamran but they could not find him there. Naturally the other witnesses who are concerned only with the last visit to Abu Bakar cannot and do not depose to any alleged visit to Kamran but it does seem improbable that none of them, when informed by Jumo and Ghulam A.I of two fruitless visits to Abu Bakar, would think of the advisibility of asking Kamran. One of these witnesses, Hussain Bux, is a well educated person, being a doctor, and is in fact related to the witnesses Jumo and Ghulam A.I.
None of them, however, speaks of any such thing and one is left to wonder why the concentration of effort to trace the deceased was made on Abu Bakar and Abu Bakar alone.
10. All these witnesses then go on to say that Abu Bakar, having confessed his guilt, agreed to point out the place where the murder had been committed and where, presumably, the corpse would still be lying. He accordingly took the whole party to that place where the corpse was discovered and from there it is said that Ghulam A.I left for the purpose of lodging a first information report while Murad A.I Shah was left to guard the body. Ibrahim and Jumo accompanied Ghulam A.I but Hussain Bux it would seem, according to his own evidence left after the body had been shown. No mention is made in all this evidence as to whether the appellant was made to accompany the prosecution party to the police station or not. In his examination-in-chief prosecution witness Nafees Ahmed, the A. S. I. At the Market Police Station where the first information report was wrongly recorded, makes no mention of the presence of the appellant. The first information report which he recorded also does not state that the appellant bad been brought nor is there any note of Nafees Ahmed upon this first information report to the effect that the appellant had been brought by the prosecution party, much less is there any note of his arrest. In the information that he says he conveyed to the S. H. O. Of the Tando Jam Police Station, Allah Bux Khan, again there is not a word about the presence of the appellant at the police station. Although Allah Bux himself does say that, when he went to the Market Police Station the appellant was there and be arrested him, Allah Bux also does not depose to any information received by him from Nafees Ahmed that the appellant had been arrested. When one takes into account the fact that, according to himself, Nafees Ahmed was ready to go for investigating the crime and would have in fact gone had it not been for the timely arrival of Allah Bux at the Market Police Station, it is surprising that he would not have arrested the appellant if he was present. There is admittedly no mashirnama of the arrest of the appellant by Nafees Ahmed and it is not even claimed that such an arrest had been made. It is the S. H. O. Allah Bux Khan who claims that finding the appellant at the Market Police Station, he arrested him and prepared a mashirnama of such arrest. I therefore find it extremely difficult to believe that the appellant had in fact been brought to the Market Police Station.
11. Now if indeed it is not established that the appellant was brought to the Market Police Station by the prosecution party this must in turn recoil upon the evidence of his having taken them to the scene of offence at all if he did take them then where did he go after he had pointed out the scene to the prosecution party and why was he allowed to go? The number of persons in the prosecution party were surely sufficient to force him to accompany them to the Police Station. In turn then this finding must also affect the question whether it was indeed the appellant who showed the scene of offence to the prosecution party but, before I deal with that, I think it appropriate to say what has been stated in regard to the pointing out of the place of the scene of occurrence to the police.
12. The Police Officer Allah Bux Khan carefully avoided saying that the scene of offence had been pointed out by Abu Bakar though he did say that the appellant was also present when it was pointed out by the first informant Ghulam A.I. Clearly he saw, not merely at that time when he gave evidence in Court but even when he was preparing a mashirnama, that evidence of this kind would be useless, and indeed, worse than useless, because according to the first information report itself the prosecution party had already been shown the scene and therefore the pointing out of the place by the appellant would carry little meaning. Indeed it would be inadmissible because the pointing out could hardly have been by means of a dumb show but must have been accompanied by a statement which was incriminatory and, under section 27 of the Evidence Act, that would be relevant only if led to the discovery of some fact. The fact which was discovered was already known to the police. Nevertheless the mashir Ashraf says that the appellant pointed out the scene.
The care which Allah Bux showed in regard to Abu Bakar however was missing when it came to the turn of Kamran who was subsequently arrested and, in his case, the police officer deposes that he showed the scene of offence and there is a mashirnama also which incorporates that fact. Now whether the appellant showed the scene to the prosecution party before a frst information report was lodged or not, certainly the first informant, according to himself and according to the contents of the first information report, knew where the dead body was before he lodged the first information report. Whether this was, as a result of information given by Abu Bakar or Kamran or the showing of the place actually by either of them or by reason of a search made by the prosecution party is, for the time being, immaterial. In any view of the matter if the circumstance of pointing out the scene meana its being pointed out by the appellant to the police it is clearly not established.
13. In order however that this should constitute an incriminatory cir--cumstance against the appellant it is by no means necessary that the discovery should have been made to the police; the discovery to the prosecution party before they reported the matter to the police, if satisfactorily established, would be as grave a circumstance. It is as to this however that the infirmities in the evidence of Ghulam A.I and Junto which I have previously noticed, are relevant. The evidence of these two witnesses and that of Ibrahim, Murad A.I Shah and Hussain Bux as to what the appellant stated about the motive of the crime may also be conveniently considered just now. Ghulam A.I himself said nothing whatever as to the disclosure of the motive by the appellant and indeed he had said nothing in the first information report either. The mere fact that it was not mentioned in the first information report is in itself sufficient to cast very grave doubt upon the truth of the allegation that Abu Bakar disclosed any motive at all. The motive itself, as it is alleged to have been disclosed, was that Kamran and Abu Bakar had murdered the deceased because of a demand for unnatural intercourse made by the deceased upon Kamran. Here again, however, the evidence is in conflict: while Ibrahim and Jumo say that the appellant toll them that Jan Muhammad had desired such unnatural intercourse Mural A.I Shah and Hussain Bux say that in fact Jan Muhammad had had such intercourse with Kamran. These discrepancies taken together with tilte, absence of any mention of the motive in the first information report altogether and the clear possibility at least, if not the probability, of Jumo and Ghulam A.I having made inquiries from Kamran and also having attempted. a search which might give them the necessary information, lead me to the conclusion that the discovery of the scene to the prosecution party by time appellant Abu Bakar is not free from doubt. This doubt is moreover, enhanced by the difficulty I find in believing that the appellant was taken by the prosecution part to the police station where a first information report was lodged.
14. Now if it be doubtful that the appellant was at the Market Police Station when Allah Bux came there the latter's statement that the appellant then took them to his house from where he produced blood-stained clothe;, is obviously suspect. So also would be suspect the discovery of the knife but that circumstance, in any case, is immaterial because it is not established that the knife was blood-stained indeed it was not even apparently blood--stained and was not sent for examination by the chemical examiner. Then two circumstances must therefore be discarded.
15. The other circumstance against the appellant is that when he was arrested a chit was found from the front pocket of his shirt which apparently showed that he was examined at the Liaquat Medical College Hospital at 1.45 p. m. On the 14th and in this chit is included the statement said to have been made by the appellant that he had sustained an injury accidentally and that he did not want to report. Although the circumstances of the arrest of the appellant are, in my view, in some doubt I see no reason to dis, believe the allegation that this chit was found because it is actually in exis--tence and its likelihood greatly corroborated by the evidence of Dr. Abdul Halim Qureshi who examined him on the 16th and found two incised wound: on his hands of a simple character which, according to the doctor, were then about 44 hours old. The evidence of the witnesses is also that whet, they first contacted him for attempting to find out what happened to Jan Muhammad his hand was bandaged and that he himself said that to --deceased had run away after causing him injuries. I think it may there--fore be safely held that it has been established that the appellant sustained an injury at about the time when the murder must have taken place.
16. Really, therefore, of all the circumstances alleged against the appellant there are only two which I can regard as having been proved and these are that the deceased was last seen in his company and that heir had received injuries in an incident of the same character as that in which the deceased lost his life. The deceased, it might be mentioned, sustained as many as 26 incised injuries. Now the second of these circumstances does not clearly connect the appellant with the incident while as to the firs it must be remembered that it was not the appellant alone who was with the" deceased at that time but that Kamran was also there. I find it quit impossible therefore to base a conviction upon these two circumstances alone. If the circumstance of the pointing out of the corpse and the recovery of blood-stained clothes had been satisfactorily established it might have been possible to take a different view.
17. We are then left with the judicial confession. Now according to the Magistrate who recorded this confession the appellant was produced before him at 11-30 a.m. But the written record of the confession shows that he was produced at 8 a.m. The evidence of Dr. Abdul Halim Qureshi, to which I have referred earlier, however, shows that the appellant was produced before him for Medical Examination at 8-30 a.m. There is on the record of this case also an order by the Additional City Magistrate showing that he granted remand of the accused to judicial custody on the 16th at 7-30 a.m. If then the appellant, after having been remanded to judicial custody at 7-30 a.m., was taken to another Magistrate at 8 a.m. For recording his judicial confession he could not possibly have been free for having been taken to the doctor at 8-30 a.m. The Police Officer S. H. O. Allah Bux Khan evades the difficulty by saying that on the 16th he produced the appellant before the Medical Officer and sent him whether thereafter or before one does not know) through two police constables for having his judicial confession recorded. Thereafter the S. H. O. Went to the Market Police Station and, on his return, was informed that a judicial confession had been duly recorded. It is obvious that he does not place himself in a position where he can be questioned as to the time.
Clearly, however, in an effort to get over the difficulty, the Magistrate who recorded the confession states that, although the accused was produced before him at 8 a.m., he directed the Police to produce him again at 11-30 because at 8 a. m. The Magistrate was too busy. The written record however does not mention the latter time. I cannot believe, that if the confession was recorded at I 1-30, this fact, would not have been stated in the confession; at any rate it ought to have been stated. Quite apart from any other consideration, therefore, if the Magistrate is willing to give evidence in this fashion to solve a difficulty which the prosecution was faced with I can place no reliance upon his record of the confession as being that of a voluntary confession. In my view therefore the confession must be ruled out as inadmissible.
18. Even if it were held to be admissible it would, as I have pointed out earlier, require corroboration and that corroboration can only be had from the circumstances which I have already stated. I cannot regard these as sufficient nor can I accept the extra judicial confession as sufficing to corroborate the judicial confession. For one thing, as was held in the Supreme Court case which I have cited, an extra judicial confession would not suffice to prove such corroboration. More important however is the fact that this extra judicial confession rests, as it must, upon the oral evidence of witnesses whose evidence, in the main, I have found unsatis--factory.
19. For these reasons I thought that in any view of the matter the conviction of the appellant could not be sustained.
AGHA ALI HYDER, J.------I agree.
S. A. H.