TUFAIL ALI A. RAHMAN, C. J.-At the close of arguments in this case we came to the conclusion that the conviction of the appellant could not be sustained and we accordingly announced the judgment allowing the appeal and acquitting the appellant leaving our reasons to be recorded thereafter and 1 now proceed to do so.
2. The prosecution case is that one Mst. Bachul who is the deceased in this case was the daughter of one Ghulam Haider and his wife Mst. Hajiani both of whom were related to the first informant Abdullah. The house of the first informant and that of this couple as well as others of their relations is in the same enclosure in Deh 100 Nasrat in Taluka Nawabshah of District Nawabshah about 8 miles away from the Taluka Police Station of Nawabshah. The scene of offence is described in the first information report as the house of Haji Moharram, who was the father-- of Ghulam Haider and, was dead at the time when this incident took place. Some 7 or 8 years before the incident Ghulam Haider bad promised to give the hand of 'his daughter, Mst. Bachul to one Ishak, but about 2 or 3 months before the incident be went back upon his promise and negotiations were going on for having her married somewhere else. This apparently angered the said Ishak who enticed Mst.
Bachul, it is said with her own consent, but through the intervention of some parties Mst. Bachul was eventually restored to her mother one day before this incident occurred. On the 10th of August 1970, at 1-30 a.m. It is said that cries of "murder, murder", were heard from the house of Mst. Hajtani and as a result some of the relations living in the nearby houses rushed to the spot and found that the appellant Rasool Bux, who is also a cousin of Mst. Bachul and generally related to the remaining prosecution party, was giving hatchet blows to Mst. Bachul as a result of which she died. Abdullah himself was one of those: who had gone up to the house of Mst. Hajiani and had witnessed the crime and he accordingly went to the police station where his first in--formation report was recorded at 8 a.m.
3. The report was recorded by the S. H. O., prosecution Witness Ghulam Muhammad, who then went to the scene where he examined several witnesses and prepared the inquest report and a mashirnama of the scene of offence. According to him, the appellant Rasool Bux appeared before him voluntarily wearing blood-stained clothes which were then secured by him and later sent to the Chemical Analyser for examination and have been found to be stained with human blood.
On the next day, that is to say, the 11th of August 1970, the appellant was produced before the City Magistrate, Nawabshah who recorded his judicial confession and in due course the appellant was sent up before a Magistrate who committed him to the Court of Session for trial and he was there convicted by the learned Additional Sessions Judge, Nawabshah under section 302 and sentenced to death. Against this conviction and sentence he has appealed and the sentence of death is also before us for confirmation.
4. Now the main evidence in this case which was intended to be .Led by the prosecution was that of three eye witnesses, namely, Haji Abdullah the first informant, Hajiani the mother of Mst. Bachul and another relation of theirs, namely, Allah Bux. None of these witnesses, however, supported the prosecution either in the Court of the Committal Magistrate or in the Court of Session, though in the case of each of them there are previous statements which fully implicate the appellant. In the case of Abdullah himself of course there is the first information report while in the cast of the other two there are statements recorded under section 164, Cr. P. C. Obviously, however, these are not substantive evidence, and cannot be used' for the purpose of sustaining a conviction against the appellant. The learned Judge is very probably right in thinking that the witness had been tempered with and we ourselves are of the same opinion but the fact still remains that so far as these witnesses are concerned their evidence is of no value at all to the prosecution inasmuch as they have totally denied that it was the appellant who caused the death of Mst. Bachul.
6. The main evidence, therefore, upon which the prosecution now relies is that of the confession supported, it is said, by two circumstances, namely, the fact that appellant himself surrendered before the police and that be was wearing clothes which were blood-stained. Now in regard to the confession the appellant in the statement which he made under section 342, Cr. P. C. Before the Court of Session, stated that it was neither true nor voluntary but that he was compelled to give it; in the Court of the Magistrate he had not been questioned about the confession at all. He also alleged that the police bad confined his women in the lock-up and had thus forced him to give a confession besides having maltreated him. Because, however, he admitted that he had in fact made a confession, though not voluntarily, the learned Judge bas taken the view that this is not a re--tracted confession. I regret I am wholly unable to accept this conclusion; the mere fact that an appellant admits that he did in fact make the confession does not make it anytheless a retracted one when he says it is untrue and involuntary. In law of course a confession can be made the basis of a conviction even though retracted and even though unsupported by any other circumstance provided the Court is satisfied that it is voluntary and true and, although the first duty therefore of the Court is to consider as to whether it was in fact voluntary, even after having reached the conclusion it is well established that as a matter of prudence a conviction should not be based upon a retracted confession unless it is corroborated by some other evidence so as to re-assure the Court that in convicting the appeal ant upon the confession alone it is acting safely. The appellant himself claimed that his women had been maltreated and some of the witnesses have of course said that this was so. This did not appeal to the learned Judge because he thought that the witnesses are anyhow trying to help the appellant and that therefore, these statements were obliging; probably the learned Judge was quite right in thinking this since the rest of the record also indicates that they have done their best to exculpate him. Nevertheless the fact remains that the witnesses have said so and it is a remarkable feature of this case that, although the three persons intended to be examined as eye witnesses were actually examined in Court and failed to support the prosecution, the prosecution made no effort to ask for permission to cross-examine them or otherwise to do what is generally described as treating them as hostile witnesses. This is of course not a matter conclusive in itself but is one circumstance which must be taken into account.
6. The learned Judge goes onto say that the complaint which the appellant now makes of his women having been sent for at the police station or that be was himself maltreated was not made by him before the Magistrate who recorded the confession. This piece of reasoning, I regret to say, I am wholly unable to follow; if it was the case of the appellant what while he was giving his confession he was under fear of the police and was compelled to make the confession one would hardly expect him to make a complaint of it to the Magistrate. On the other hand if he was confident that he could make such a complaint before the Magistrate who would record the confession it is hardly likely that he would then have made the confession at all. It is to other circumstances that we must look in order to ascertain whether what he is saying is true or at any rate whether what he is saying has sufficient basis to cast that element of doubt upon the voluntary character of the complaint as would suffice in law to make it inadmissible. The Magistrate who recorded the confession states that before he did so he had told the appellant that he would in any case not send him back to the police lock-up and indeed the record does bear out that he was not so seat. In my view what is important is that he was assured even before be gave the confession that the fear of what the police might do to him if he failed to make a confession is entirely removed from his own mind. The record of the confession, however, does not disclose that the Magistrate gave any such assurance to the appellant. Nevertheless the learned Magistrate has certified in accordance with the form of the confession that every question and answer that he put to the appellant has been taken down in full; in these circumstance; I must admit to a doubt on the question whether this fear of the police had been effectively from the mind of the appellant before he made this confession. Not satisfied, therefore, that the confession was voluntarily made I hold that it cannot be taken into consideration against him.
7. In this view of the matter it is immaterial whether there was or was not corroboration against the appellant. But since the argument has been advanced that there was sufficient corroboration it would be as well briefly to examine it. The corroboration that is alleged is first that the appellant came voluntarily to the police station and surrendered himself. There is however, only, the word of the S. H. O. That he did so and the appellant himself claims that he was arrested later. No mashirnama was prepared of the fact of his surrender and the only mashirnama that is relevant is the mashirnama showing his arrest at the police and the recovery of blood--stained clothes from him. I find it difficult, therefore, to hold that he did 9n fact surrender.
8. There is of course the evidence that he was wearing blood-stained clothes and that he was carrying a blood stained hatchet when he was arrested. But even up on this the mashir Baharo who has signed this mashirnama and who was examined in Court has not supported the prosecution and; here again, the prosecution made no effort whatever to cross-examine hint to suggest that he was lying. Even however if the evidence is accepted that he was carrying blood- stained hatchet and was wearing blood-stained clothes this would not suffice to uphold his conviction.
9. It is in these circumstances that we decided to allow this appeal. I must confess that I am left with an uneasy feeling that the appellant might well have been guilty of this offence but the suspicion which is engendered by the conduct of the prosecution witnesses and their previous statements cannot take the place of actual legal proof and I have not found it possible therefore to do the other than to allow this appeal.