1. Appellant Manoo alias Manthar son of Paryo was tried by the learned Sessions Judge, Jacobabad and by his judgment dated 19-11-1990 he was; convicted under section 304(1), P.P.C. And sentenced to undergo R.I. For 5 years and fine of Rs.10,000 in default of payment of fine he had to undergo R.I.
2. For one year more. The appellant was also directed under section 544-A, Cr.P.C. To pay compensation of Rs.10,000 or in default to undergo 6 months' R.I.
3. The facts forming the background in brief are that on 18-8-1988 the complainant Lal Bux lodged F.I.R. In which he, stated that his niece Mst. Arbelli was married to the. Accused about 3 years prior to this incident. On that day he alongwith P.W. Fazal went to village of the accused to meet Mst.
4. Arbelli but she was not available in the house. They were informed that she had gone to Hairo distributary to wash clothes. They went to Hairo minor at that time it was about 10-30 a.m. When they saw the accused Manoo was inflicted hatchet blows to Mst. Arbelli who in turn was raising cries. P.W. Rajo also came at the spot on the cries of Mst. Arbelli and had also witnessed the incident. The complainant and the witnesses challenged the accused but the accused replied that he had declared Mst. Arbelli Kari with Abdul Haque. Thereafter, the accused ran away. The witnesses then saw that Mst. Arbelli had expired. Leaving the witnesses at the spot the complainant went to Police Station Karim Bux where he lodged the report.
5. The F.I.R. Was recorded by A.S.I. Abdul Majid who then visited the place of Wardat and inspected the same in presence of Mashirs Abdul Rehman and Sobho Khan. He also held inquest on the dead body of Mst. Arbelli and thereafter sent the same to Medical Officer Thul for post-mortem examination and report. At the Wardat he also recorded, 161, Cr.P.C. Statements of P.Ws. Fazal and Rajo. On 26-8-1988 he arrested the appellant under Mashirnama in presence of the same Mashirs.
6. During interrogation the accused also produced blood-stained clothes, which were also secured in the presence of the same Mashirs. On 28-8-1988 the appellant agreed to confess the crime; he was therefore, taken to Mukhtiarkar and F.C.M. Thul. He recorded his judicial confession. The Investigating Officer also got recorded the 164, Cr.P.C. Statements of the witnesses. After having completed the investigation he handed over the case papers to S.H:O. Who challaned the appellant in Court. The blood-stained hatchet was also sent by him to the Chemical Examiner and its report was also received by him.
7. At the trial the prosecution examined 9 witnesses. Out of these witnesses P.W.1 Lal Bux, P.W.2-Fazal and P.W3 Rajo are the eye-witnesses. P.W.4 Muhammad Hussain is the Tapedar who had inspected the place of Wardat. P.W.5 is Ali Akbar who is Mukhtiarkar and F.C.M. Thul who had recorded the judicial confession of the accused. P.W.6 is Dr. Asadullah who conducted the post-mortem examination of Mst. Arbelli. P.W.7 Sobho Khan is the only Mashir of all the Mashirnamas.'P.W.8 H.C.
8. Mir Muhammad is formal witness while P.W.9 A.S.I. Abdul Majid is the Investigating Officer. At the conclusion of the trial the statement of the appellant .Was recorded under section 342, Cr.P.C. In which he denied the prosecution allegations and claimed to be innocent having been falsely implicated in this case by the police. He however, did not wish to examine any defence witness. The statement of the accused was also recorded under. Section 340(2), Cr.P.C. In both the statements ,the accused has categorically stated that he was maltreated by the police to extract confession.
9. His signature was obtained by the police on some papers while he was never produced before the Mukhtairkar and F.C.M. He further states that his mother and sister were also taken into custody and was told to sign the papers or his womenfolk will be disgraced, as such he was forced to put his left thumb-impression on the papers. At the conclusion of the prosecution case the appellant was convicted by the trial Court as already mentioned hereinabove.
10. I have heard Mr. Gul Bahar Kerai learned counsel for the appellant and Mr. Zawar Hussain Jaffri learned A.A.-G. For the State. The learned AA.-G. Has not supported the conviction of the appellant.
11. I have carefully applied my mind to the facts and circumstances of the case and I have also gone through the entire evidence on record with the assistance of-learned counsel for the appellant. The perusal of the judgment delivered by the trial Court shows that the appellant was convicted on the basis of his judicial confession coupled with the circumstantial evidence of the recovery of blood- stained hatchet at the pointation of the appellant. It has been contended by the learned counsel that the ocular evidence in this case does not support the prosecution case as such in the present case there was no direct evidence against the appellant. The perusal of the judgment also shows that the learned trial Judge had also come to the same conclusion and has observed that the witnesses have not supported the prosecution case by stating that they have not seen the accused Manoo causing hatchet blow to deceased Mst. Arbelli. As such the learned counsel has rightly contended that in a given case where there is no direct evidence then in such a case if the accused is to be convicted on the basis of circumstantial evidence only, then the same must be free from any doubt and no other explanation should be possible except the guilt of the accused.
12. Since there is no direct evidence in the case I will therefore, refer to the evidence on the basis of which the appellant was convicted by the trial Court. As already mentioned, the trial Court has convicted the appellant on the basis of his judicial confession which is alleged to, be corroborated by the recovery of blood-stained hatchet: It will appear that the most important piece of evidence against the appellant is the so-called judicial confession. Before examining the evidentiary value of the judicial confession, I regret to observe here that the learned trial Judge did not bother to take into consideration the cross-examination of the learned Mukhtiarkar and F.C.M. Thul. The cross- examination of P.W.5 Ali Akbar who is Mukhtiarkar and F.C.M. His deposition is Exh.15. He states that on 27-8-1989 the appellant was produced before me for recording his judicial confession. After observing all the formalities he recorded statements which he has produced as Exh.16. In his cross- examination he has made the following admissions:-- "It is correct that it is mentioned in the confessional statement that the incident was committed in the house of accused, but it is correct that this information was given to me by police which I recorded in the confessional statement.
13. It is correct that 1 have not mentioned in confessional statement that I told accused that I was the 1st Class Magistrate.
14. I have not produced any letter in Court for remanding the accused to judicial lock-up after recording the confession.
15. I have not mentioned in confessional statement that I got removed hand-cuffs of accused when he was produced before me for confessional statement.
16. I have not mentioned in confessional statement that I enquired from accused as to why he was giving confessional statement."
17. It will appear from the cross-examination of the learned Magistrate that the basic requirements for recording confession were not complied with by him. The confessional statement is silent regarding any warning given by the learned Magistrate and the most important aspect of the matter i.e. Why the appellant was making this confession is also missing. In this view of the matter no effort was made to find out about any inducement, threat or promise. It is for the purpose of eliminating any doubt, regarding the confession being made by the appellant under any inducement, threat or promise that the question must be put to the accused as why he is making confession. In the absence of this question that doubt has not been removed. The learned Magistrate himself has admitted in the cross-examination that it was not mentioned in the confessional statement that he had made such enquiries from the accused. Even the 'other necessary requirements do not appear to have been complied with the confessional statement does not show that the appellant was informed that if he makes the confession it can be used against him. Similarly the appellant was not informed that he was before the 1st Class Magistrate.
18. So much so that there is no mention that the handcuffs of the appellant were removed or that he will be sent to judicial lock-up. All these circumstances clearly go to show that the necessary formalities as required under the law, were not complied before recording the judicial confession of the appellant. As such I have no hesitation to hold that the said judicial confession cannot be relied upon for the purpose of upholding the conviction of the appellant. I am, therefore, of the view that the trial Judge should not have relied on the judicial confession of the appellant. There is another circumstance also i.e. The appellant has stated in statement under section 342, Cr.P.C. As well as on oath at the confession was never made by him but his left thumb impression was at by the police as the police had threatened to disgrace his mother and sister. The plea taken by the appellant could be possible in the circumstances of this case.
19. As the judicial confession is ruled out of consideration the only other piece of evidence left is the recovery of blood-stained hatchet on the pointation of appellant. Though the recovery is denied to have been made in his presence by the Mashir Sobho Khan, even then if this recovery evidence is relied upon then too no useful purpose will be served. It may be noted that the recovery evidence is only a corroborative evidence. When there is no direct evidence then there is nothing to corroborate by means of the recovery evidence. As such the recovery evidence by itself cannot be used as the sole basis of conviction. In other words when direct evidence fails the recovery evidence is of no consequence.
20. In view of my above discussion, I am of the considered view that the prosecution has failed to prove the case against the appellant. Consequently the conviction and sentence of the appellant are set aside. By a short order dated 18-5-1992 the appeal was allowed, these are the reasons for the same.