1. ' Vide judgment dated 30th October, 1986 of learned Ist Additional Sessions Judge, Khairpur, appellant Gulan alias Gul Muhammad is convicted for offence under section 302, PPC and is sentenced to life imprisonment and a fine of Rs,5,000 or in default further R.I. Of six months. He is further convicted under section 201, PPC and is sentenced to R.I. For two years and a fine of Rs,1,000 or in default further sentenced to R.I. For two months. Appellant is so convicted and sentenced on the charge of having committed murder of Mst.Zarbano, who was daughter of his sister as well as wife of his son Ghulam Shabbir. According to the prosecution appellant inflicted injuries on deceased with hatchet and after killing her threw her dead body in Rohri canal.
2. ' Prosecution case briefly stated is that appellant Gulan reported to P.S. Kotdiji vide entry number 18 in Roznamcha dated 21-8-1985 that his niece Mst.Zarbano, who was a mental case, had jumped into Rohri canal and committed suicide on the previous day at 12-00 noon and her dead body was recovered from Rohri canal on the next day i,e, 21-8-1989. Entry No,18 in Roznamcha was made by ASI Mir Muhammad Ghumro for further enquiry. Some delay had occurred in obtaining post- mortem report and when photo copy of such post-mortem report was obtained from Dr.Riaz Hussain Shah, Medical Officer, Civil Hospital, Khairpur it appeared that death had occurred on account of hatchet injuries which were ante-mortem and then dead body was thrown in the canal.
3. Such FIR on behalf of State was scribed by ASI Abdul Haleem on 18-12-1985 and entered into 154 Cr.P.C. Register. After registration of FIR as stated above ASI Abdul Haleem proceeded to village 'Cando Lashari of appellant GWan and recorded statements of witnesses Abdul Rahim, Hussain Bux, Sobdar, Muhammad Khan and six others. On 8-1-1986 he arrested appellant Gulan. On the same day appellant Gulan voluntarily pointed out the place of vardat and such mashirnama was prepared. On the same day ASI also recorded statements of PWs Ghulam Shabbir and Mst.Jannah.
4. On 9-1-1986 this ASI produced appellant Gulan before Mukhtiarkar and FCM Kotdiji who recorded his judicial confession. On 16-1-1986 this ASI got recorded 164 Cr.P.C. Statements of PWs Hussain Bux and Sobdar before Mukhtiarkar and FCM Kotdiji. He then handed over papers to SHO who verified the progress of investigation and presented challan in the Court.
5. ' Prosecution has examined in all 7 witnesses in support of its case. P.W.1 is Abdul Rahim, who has deposed that he was informed by Sobdar in presence of Karim Bux and Mushtaq that Mst.Zarbano had fallen in Rohri canal. Sobdar was so informed by appellant Gulan. He alongwith other witnesses went to the canal and on the following day dead body was recovered which had been partly gnawed away by fishes. PW 2 Muhammad Usman Ex.9 is mashir and has attested and produced mashirnama of vardat Ex.9-A and Mashirnama of arrest Ex.9-B. PW-3 is Hussain Bux Ex.10, who is father of deceased. He has deposed that he was informed by Soobal alias Sobdar that his daughter Mst.Zarbano had fallen in Rohri canal. He came to the place of vardat and saw head- sheet of his daughter hanging in the babul tree near bank of Rohri canal. On the following day dead body was recovered with injuries on her nose and ear and her neck was found cut partly. PW 4 is Mr.Mushtaq Hussain Ex.12 who is Mukhtiarkar and F.C.M. He recorded judicial confession of appellant Gulan on 9-1-1986. He has deposed that he took all the necessary precautions while recording judicial confession. He has produced the confession as Ex.12-A. He also recorded 164, Cr.P.C. Statements of witnesses Hussain Bux and Sobdar which have been produced as Exs.10-A and 12-B. PW 5 is A.S.I. Abdul Haleem Ex.13, who has recorded F.I.R. Ex.13-A on behalf of State. P.W. 6 is Dr.Riaz Hussain Shah Ex.15 who conducted postmortem examination on the dead body of Mst.Zarbano on 22-8-1985 and has produced post-mortem report as Ex.15-A. According to the doctor death was due 'to haemorrhage and shock caused by injuries No,1 and 2 which were caused by sharp cutting weapon. Injury No,1 was sufficient to cause death in the ordinary course. It is further stated by the doctor in the post-mortem report that after murder dead body was thrown in the river water. PW-7 is Amanullah Tapedar Ex.16 who has prepared sketch of vardat on 4-9-1986 and produced the same as Ex.16-A.
6. ' In the trial Court statement under section 342, Cr.P.C. Of appellant Gulan was recorded in which he has denied prosecution allegations and has further retracted from Judicial confession on the ground that the same was obtained from him under coercion, duress and torture. Appellant further proclaimed innocence and claimed that police had collected evidence against him with ulterior motive and his relatives were detained to pressurise him for making judicial confession. He examined two witnesses in defence. DW 1 is Muhammad Bux Ex.19, who has deposed that deceased was a mental case. DW 2 is Din Muhammad W.H.C. Ex.21 who has claimed that mashirnama of vardat and arrest were not in his hand-writing. During trial proceedings defence theory was that deceased Zarbano was a mental case and had committed suicide by jumping into Rohri canal.
7. ' I have heard at length Mr.Daud Baloch Advocate for the appellant and Mr. Zawar Hussain Jafferi AA.-G. For State. In this case there are no eyewitnesses and from the evidence and material produced by prosecution it appears that sheet-anchor of the whole prosecution case is judicial confession of appellant. At the trial proceedings this judicial confession is retracted by the appellant and it does so appear very clearly in the evidence of some material witnesses. Such plea is further categorically taken in 342, Cr.P.C. Statement as well. It is now well-settled proposition of law that a retracted judicial confession is not to be acted upon by the Courts unless it is corroborated in material particulars. It is so held by the Supreme Court of Pakistan in the case of Nadir Hussain v. Crown reported in 1969 SCMR 442. Before I go into the question of corroboration in material particulars as stated above so many other defects and inherent infirmities have been pointed out in the said judicial confession, which make the said confession unsafe to rely upon because mandatory requirements for the purpose of recording such confession have not been complied with. In this respect first such glaring defect is pointed out which is to the effect that confession was recorded after a long interval. In this case according to the record of the prosecution appellant was arrested on 8-1-1986 and his judicial confession was recorded on the following day but I feel a lingering doubt with regard to this assertion made by the prosecution for the reason that most of the witnesses examined by the prosecution in support of the case of the prosecution have supported the line of defence that appellant was taken into custody much earlier than 8-1-1986 which is shown as date of arrest and police exercised pressure upon him to give judicial confession. In his 342, Cr.P.C. Statement recorded in the trial Court, appellant stated that his judicial confession was obtained under coercion, duress and torture. He further stated that his relatives were detained by police at the police station and he was compelled to give confession.
8. ' P.W.1 Abdul Rahim is related to the deceased and deposed before the trial Court that he was detained for about 8/10 days at police station Kotdiji and so were P.Ws Karim Bux, Hussain Bux, Sobdar and Mushtaq. Appellant Gulan was also detained by police for about a month. Gulan was produced before Mukhtiarkar after one month of the . Incident when he made confessional statement. It is further stated by this witness that police asked him and other witnesses to influence Gulan to make confessional statement. He and Gulan were thereafter maltreated by police and were insulted. This witness was threatened that his family members would be brought to the police station. He and other witnesses requested Gulan to make confessional statement so that they may be released.
9. ' P.W.2 Muhammad Usman Mashir of vardat testified before the trial Court that appellant Gulan was taken away by police one month prior to the preparation of mashirnamas of vardat and arrest which he has produced as Exs.9-A and 9-B. Gulan remained in custody of police for one month.
10. ' P.W.3 Hussain Bux who is father of deceased Mst. Zarbano has stated in his evidence before the trial Court that appellant Gulan remained in the custody at police station for 20/25 days after which his statement was recorded before the Magistrate. Other witnesses are formal in nature.
11. ' Now question which arises for consideration is that when these prosecution witnesses claim in their evidence in the trial Court that appellant was detained by police in custody for 20 to 25 days and was pressurised to make judicial confession and his relatives were also compelled for that purpose and if this part of the story was inconsistent with the prosecution case then it was open to the prosecution to have these witnesses declared hostile and subjected them to cross- examination but this was not done. It was not done perhaps for the reason that prosecution did not want to dispute this assertion.
12. ' P.W.4 is Mr.Mushtaq Hussain, Mukhtiarkar and F.C.M. Who has recorded judicial confession. He had admitted in his evidence that there is overwriting in judicial confession Ex.12-A on the date of arrest which is encircled in red and it is not signed or initialled by this magistrate. This magistrate has also admitted that after confession of appellant was recorded, he handed over appellant to the same A.S.I. Who had produced him for confession.
13. ' P.W.5 Abdul Haleem A.S.I. Has admitted in his deposition before the trial Court that he took appellant Gulan to the magistrate for judicial confession and got custody of appellant back from the magistrate after judicial confession was recorded.
14. ' Reference can be made to the case of Tauqir Alam and others v. State reported in 1985 MLD 604 wherein it is held that it is mandatory duty of the magistrate to satisfy himself that accused was making confession voluntarily and he is not to be handed back to the police subsequently after he made confession or not. It is also held therein that if accused is returned to the same police who had brought him then voluntariness of the confession would be affected.
15. ' Another ground on which judicial confession was assailed is that there was nothing in the record of the prosecution to show factum of arrest except mashirnama of arrest Ex.9-B and judicial confession itself in which date of arrest was mentioned. Interpolation in the date of arrest in judicial confession is admitted by the magistrate and there is no dispute about this fact. Furthermore so far mashirnama of arrest Ex.9-B is concerned, P.W.5 Abdul Haleem A.S.I. Has proclaimed in his evidence that he is author of mashirnama of arrest Ex.9-B which is in his handwriting. On the other hand appellant has produced H.C. Din Muhammad from the same police station as his defence witness who has stated categorically that mashirnamas Ex.9-A and 9-B are not in his handwriting and further that he could not say in whose handwriting those mashirnamas were written. Mr.Daud Baloch argued that had these mashirnamas been in the handwriting of P.W. Abdul Haleem, this defence witness would have certainly said so. By saying that he does not know as to in whose hand-writing those mashirnamas were, it can be inferred that the mashirnamas were not in the handwriting of P.W.5 Abdul Haleem A.S.I. And in such case this witness should have been cross- examined. His non-cross-examination by prosecution clearly implies that whatever he has stated is not disputed by the prosecution and is accepted in its totality.
16. ' Now so far as judicial confession is concerned, its perusal shows that according to the appellant deceased Mst.Zarbano was wife of his son Ghulam Shabbir and appellant suspected her character. On the day of incident appellant asked deceased to go alongwith him for cutting wood and in the jungle he gave her hatchet blows and threw her in the canal. He also threw hatchet in the canal and came back to his house. Thereafter he informed Sobal that the girl had gone away from the house and suggested that they both should go and search for her. When they reached Rohri canal appellant raised cries that the girl had fallen in Rohri canal. On the cries Muhammad Khan, Laung and Kalander Bux came to the spot whom appellant informed that deceased was a mental case and had drowned herself. Appellant sent message through Sobal on which came Abdul Rahim, Karim Bux, Hussain Bux and Mushtaq Hussain who were also informed by the appellant that deceased was a mental case and had drowned herself. It is further stated in the judicial confession that thereafter appellant and others were on the look out for surfacing of dead body in Rohri canal and when they saw body floating they took it out. Shah Nawaz came, saw dead body and advised lodging of F.I.R.
17. ' Whatever is stated in the judicial confession is not corroborated or confirmed in material particulars subsequently in any manner. Hatchet with which it was alleged that murder was committed, was not recovered after recording of judicial confession. It was possible because appellant could have pointed out the place where he had thrown the hatchet and the same could have been taken out from that particular place. Secondly after recording of the judicial confession no corroboration was made available by visit to the spot on the pointation of appellant. No incriminating material was recovered to confirm the fact that incident took place at that particular spot in the manner stated by appellant in judicial confession. No blood was found nor any other indication was available to confirm the story of incident as was alleged in the judicial confession.
18. Prosecution did not produce initial report which was recorded as entry No,18 in the station diary of 21-8-1985 of P.S. Kotdiji. On the basis of that entry subsequently F.I.R. Was lodged by A.S.I. Abdul Haleem. It appears from the perusal of F.I.R. Ex.13-A that even that report was lodged after recovery of dead body and after obtaining the post-mortem report. There was delay in obtaining report of post-mortem and when doctor pointed out that death was not due to drowning but due to incised injuries on the neck, only then it aroused suspicion that there was foul play and it was not a case of drowning as claimed by the appellants in his entry No,18 in, the station diary. Since this entry was not produced by, the prosecution, I sent for the record from the concerned police station and perused the same. I found in that entry that after dead body was recovered, appellant himself came to the police station and reported that Mst.Zarkhatoon had jumped in the river because she was mentally ill. It is also stated in the said entry that appellant himself saw Mst.Zarkhatoon jumping in the Rohri canal and at that time P.W. Sobho was also with him. It is also stated in the said entry that after discovery of dead body no injury was found on it and it was an accidental death. The police officer who made this entry could have seen the dead body himself before sending it to the medical officer for post-mortem examination. If this had been done probably that police officer could have noticed injuries on the dead body allegedly caused by hatchet. Strangely enough whole thing had to wait till the finding of the doctor and in the meantime no steps were taken for the purpose of proceedings under section 174, Cr.P.C. Contents of this entry No,18 do not come, handy to support any assertion made in judicial confession. Furthermore story of incident as is related in judicial confession does not find corroboration in anything which was recovered after judicial confession was recorded. There is nothing on the record available with prosecution to confirm anything which was stated in judicial confession excepting injuries on the neck of deceased caused by sharp cutting weapon but this piece of corroboration is also not helpful for two reasons. Firstly dead body was found and post-mortem report was made and then appellant was arrested and his judicial confession was recorded. Secondly such corroboration by way of medical evidence showing nature of injuries is not corroboration qua accused but is corroboration to show what injuries were caused with what weapon. In the instant case there were no eye- witnesses and there is no evidence to support the claim that appellant himself caused death of Mst.Zarkhatoon. In support of proposition mentioned above reference can be made to the case of Muhammad Ismail v. State reported in 1985 P Cr. L J (Kar.) 713.
19. ' For the facts and reasons stated above I am of the view that there are inherent defects and setbacks in the judicial confession as stated above which do not satisfy the Court that it was recorded in accordance with requirements of law and further that this judicial confession is truthful and voluntary. Furthermore this judicial confession does not stand confirmed by any corroborative evidence. It wills be unsafe to rely upon such retracted judicial confession in the absence of corroboration in material particulars. Reference could be made to the case of Ghulam Qadir y.
20. State reported in 1983 SCMR 523. There are no eye-witnesses in this case and no recovery is made of incriminating articles to show connection of appellant with the commission of crime. In the circumstances I give benefit of doubt to the appellant and set aside his conviction and sentence and acquit him. Appeal is allowed. The appellant is in custody and he should be released forthwith if not required in any other case. I had already allowed appeal vide short order passed by me on 29-11-1989 for reasons to be recorded later which are stated above.