' SARDAR MUHAMMAD RAZA KHAN, J.---Mst. Begum Jan widow of Sain Bakhsh lived at Nakka, a hamlet of village Shohal Mazullah Khan within the limits of Police Station Balakot, District Mansehra.
The other inmate of the house was her grown up daughter Gulnaz Bibi aged 15/16 years. On 27-6- 1992 the mother at about 11-00 hours went to the house of her brother Noor Ahmad in Dhengan to fetch whey. It was to her utmost shock that when she returned at 12-30 hours, her daughter was lying in the pool of blood slaughtered to death.
2. At 15-45 hours Mr. Saboor Khan S.H.O., Balakot came to Sohah Bazar along with police party having routine round of the area where somebody disclosed to him that a murder had been committed in Nakka. He started for the village and reached there at 17-30 hours where Mst. Begum Jan lodged the report to the above effect saying that she had no enmity or grievance with any one and did not know as to who had committed the murder. The S.H.O. Recorded the report, observed that the body of a young healthy girl was lying on a cot with her legs down the side thereof and a pool of blood underneath the cot. He prepared the injury sheet, resorted to further investigations and dispatched the dead body for post-mortem examination.
3. During spot inspection he observed 3 or 4 blood-stained stones on the path outside the house, last one in the house of Mehndra. Upon this he is said to have conducted the search of the house whereupon washed blood-stained clothes and Chapples were recovered that still were partially smeared with blood. Mehndra, on inquiry, told the S.H.O. That the clothes and Chapples belonged to his son Farooq who was not present in the house and had disappeared. Supplementary statement of Mst. Begum Jan was recorded. A case against Farooq was registered and he was produced before the police on 29th. During investigation he made certain potations on the spot, led to the discovery of a blood-stained dagger (Churri) from underneath a mulberry tree in the fields and also made a confession before Magistrate 1st Class, Balakot on 30-6-1992 which is Exh.PL, Exh.PL/1 and Exh.PL/2 on record. When indicted to stand trial before the Court of Session at Mansehra under section 302, P.P.C., Farooq accused 15/16 pleaded not guilty to the charge. At the close of trial, Syed Yahya Zahid Ghillani learned Sessions Judge Mansehra held him guilty of the murder of first degree and sentenced him to death vide his judgment dated 5-12-1993 and hence this appeal.
4. This is a case of complete circumstantial evidence where the prosecution relies upon the confessional statement which is alleged to be voluntary and true. Voluntary because Mr. Tehmas Khan Jadoon learned S.D.M., Balakot after resorting to the thorough procedure in this behalf, was satisfied of it and true because the confessional statement was supported by various circumstances in material particulars. Such supporting circumstances were considered to be the recovery of clothes, Chapples, the discovery of blood-stained Churri, the post-mortem report and a strong motive to the effect that the deceased Guinn Bibi was given in Nikah to one Rafique to the utter annoyance of Mehndra who had some dispute over land with the father of Rafique and who asked the hand of the girl for his son who was elder to the accused. Mehndra, allegedly, had gone to this extent as well that if Mst. Begum Jan did not like her daughter to be given in marriage to the elder brother of the accused, it should be not given to Rafique either.
5. After having listened to the learned discourse of Mr. Abdullah Jan Mirza and Mr. Muhammad Hanif Khan from the side of defence and Qazi Shamsud Din, Advocate in assistance to the learned AA.-.G., we have come to observe that' it is a case of complete circumstantial evidence where the judicial confession, now retracted, stands on top. Our job is, therefore, to closely observe in the circumstances of the present case as to whether the retracted confession was voluntary as well as true. If the circumstances of the case are doubtful, the confession is obviously not true and if the required magnitude of care and caution is not adopted by Mr. Tehmas Khan, M.I.C., Balakot, it is not voluntary.
6. All the formalities required by law to be observed by a Magistrate while recording the confessional statement of an accused are essentially aimed at extracting a statement which is voluntary at the very first instance. The accused has remained in police custody before his production in Court and thus the latter has to satisfy its judicial mind that when produced before it, the accused is not only free of all the fears but also has not been subjected to any to; Lure, coercion, undue influence and promises that led to the making of confession. The Magistrate is bound to apprise accused that he is before a Court free from the clutches of the police and that whether or not he makes a confession, he would never be remanded to police custody. The accused, as of right, is to be informed of the legal consequences of his making a confession and is to be given sufficient time to reflect. He is to be warned before and after such reflection that he was never bound to make a confession. After doing all such necessary formalities, the Magistrate would start taking down the statement of the accused. Fear of police and his likelihood of the return to police custody are the first and foremost things to be completely washed away from the mind of the accused before that his confessional statement is recorded.
7. We were surprised to see that the learned Magistrate had failed to make the mind of the accused clear of all the fears of police. Neither in the questionnaire Exh.PL nor in the certificate Exh.PL/2 it is mentioned that the accused was given satisfactory appraisement of the law as well as fact that whether or not he makes a confession, he would not be handed over to the police. When such fear is not removed how under any stretch of imagination the confessional statement can be dubbed as voluntary.
8. It is a matter of common knowledge that in matters of recording confessional statement, the first offenders or the accused of young ages should never be treated at par with the die-hard criminal.
In the instant case the accused was of about 15 years of age and thus merely a frowning eye of the police officer could make him whittle down. The Magistrates are required to be extra conscious when recording the confessional statement of a minor boy or a young lad. In the circumstances of the present case and in view of the failure of the Magistrate to clear the mind of the accused of all fears, we are of the considered view and hold that the confession Exh.PL/1 in hand was never voluntary. This fact by itself is sufficient to set aside the conviction of the accused but there is much ahead to be attended to.
9. When one reverts to the facts of the present case, one gets fully satisfied that the confession is not true either. In his statement while relying on the alleged motive the accused states of having gone to the house of Gulnaz Bibi deceased. This by itself is not free from doubt because in view of the strained relations claimed, he had no business to visit the house. Anyhow after his having gone there, he developed altercation with Gulnaz Bibi the deceased. The exact cause of altercation that consequent upon a murder is never disclosed so that the Court should become satisfied in its judicial mind that the provocation was natural, logical and reasonable. The accused hit Gulnaz Bibi with a stone on her head. This is belied by the post-mortem report where there is no head injury.
After his verbal conflict (Takrar) with Gulnaz Bibi the accused had become so much enraged that he rushed to his house for a `Churri' but when returned to the spot, he resorted to hitting with stone.
The stone blow was fairly strong that made the girl to fall down and probably lay unconscious because therefrom she was lifted by the accused to be taken to the inside of room where he resorted to slaughtering undisturbed. After all what was it so grave that the accused did not feel satisfied after hitting her unconscious and resorted to the most brutal manner of killing. This seems to be highly improbable where the circumstances have materially contradicted the confessional statement.
10. The deceased Gulnaz Bibi is a stout and healthy girl of 15/16 and hence one cannot expect that she would play a sitting duck and a boy of 15 would so easily overpower her. If the aim was otherwise to commit rape, there was no sense in killing after the commission of rape and if the girl was stout enough not to permit the rape, she could not be killed either so easily. The circumstances show that whosoever was the assailant, she had shown considerable resistance during which her fingers were cut. In this struggle she might have resorted to shrieks and calls for help but nobody got attracted from the vicinity despite the fact that the house of Rafique her alleged husband was quite near to the spot. It is alleged by the prosecution that although Nikah with Rafique had been performed but no `Rukhsati' had taken place till then.
11. The confessional statement is belied by another fact as well to the effect that in such statement the accused alleges of having concealed the Churri at the back of the house of the deceased but the discovery at his pointation through Exh.PC is made from the back of his own house from underneath a stone which is not mentioned in the confessional statement. The most baffling circumstance of the case is that in the vaginal swabs of the deceased male semens were detected. To this effect there is no explanation in the confessional statement. The strong possibility cannot be ruled out that the girl who was not a virgo intacta might have been seen by some one with someone in a position that could not be tolerated. The benefit of all such strong possibilities must go to the accused and not to the prosecution.
12. The motive in the instant case is also very doubtful and dubious. If the matter of asking the hand of the deceased was so important and delicate that she had to give her daughter in Nikah without `Rukhsati', the expected fear could never be ignored and thus the first doubt ought to have been raised by Mst. Begum Jan against Mehndra at the first place, and the elder brother of the deceased at the second place. It is astonishing to note that the lady had not at all suspected any one and in her own words, she had neither any enmity with any one nor any grievance so to speak. It appears that when the medical report was received the next day, she was made to give a supplementary statement purporting to have been given on the previous day saying that her daughter was murdered for the commission of rape. This seems to be a contradiction in terms. A tragedy had taken place in the village but nobody resorts to the place. Instead, the S.H.O. Out of sheer rumour came to the spot full 5 hours after the occurrence but still none was suspected by the lady. It is not known as to how the commission of rape occurred to her mind on that very day and if so what was the evidence on which it was based.
13. The conduct of the accused as formulated by the prosecution is unreasonable from another angle as well. It is evident that the `Churri' used in the commission of offence is a normal kitchen knife and would make no difference if subsequently recovered from some house unless it is suspiciously blood-stained. The accused is conscious of all the blood around and specially goes to wash his clothes but it is foolish on his part that he conceals the `Churn? At some other place although it could be washed much easily as compared to the clothes and along with the clothes.
The factum of discovery is totally unbelievable specially when it is determined by the chemical examiner that all such things contained a human blood. It is all the more doubtful when one observes that the articles were sent to the laboratory full 5 months after the recovery and discovery. The blood is bound to disintegrate after 3 weeks at the most and hence the report is not at all satisfactory. In a case NLR 1984 Cr. 501, such report was not relied upon when given after 23 days. In other cases it was not relied upon when given after two months and three days. The presence of blood on the clothes is by itself improbable because those were practically washed by the accused and if still he left the blood on the clothes and Chapples, there was no sense in washing them. According to the recovery memo. Exh.PM the clothes of the deceased are of blue colour while those received by the chemical examiner as per report Exh.PK are of black colour and hence it is not known as to what was recovered allegedly belonging to the accused and what was examined at the laboratory.
14. In view of all such extremely doubtful circumstances we are of the view that the retracted confession of Muhammad Farooq is not supported by the attending circumstances in material particulars. The account of injuries given by the accused is not in accordance with the injuries found by the doctor. It is full of improbabilities and hence untrue besides being non-voluntary. A similar confession being the only principal item of evidence was not relied upon by the Honourable Supreme Court in `Shaffu alias Shafi Muhammad v. The Crown' 1971 SCM R 200. We are also of the firm view that the recoveries as well as the discoveries are highly doubtful and the report of the chemical examiner is false. The matter is so full of doubts and the retracted confession is so untrue and non-voluntary that no conviction at all can be based thereon.
15. Consequently, the appeal is accepted, the impugned conviction and sentence is set aside and the appellant Muhammad Farooq is hereby acquitted of the charge under section 302, P.P.C. If not required to be detained in any other cause, the appellant is directed to be set at liberty.
' The connected Murder Reference No,2/93 is answered in the negative.