FAZAL ILAHI KHAN, J.---Leave to appeal was granted in the Jail Petition (No, 58 of 1992) against the judgment of the Balochistan High Court, Quetta dated 10-12-1991, dismissing the appellant- convict's appeal against the judgment and order of the Additional Sessions Judge, Quetta, dated 31-8-1991, maintaining his conviction and sentence under section 302, P.P.C. Of life imprisonment and a fine of Rs,20,000 or in default of payment of fine two years' further R.I. Leave was granted on the grounds:
(i) No direct evidence is available against the petitioner.
(ii) His confessional statement has been made basis for his conviction but that confession has been disbelieved with regard to material particulars like implication of the co-accused and the motive. The Magistrate recording confession does not remember whether the police was kept out while recording that confession or not.
(iii) The witnesses of recovery of knife are not confidence inspiring.
2. The prosecution case in brief is, as disclosed by Abdur Razaq (P.W.1), that Muhammad Irfan deceased was his brother and working with him as Welder in WAPDA Workshop. That they were residing jointly with their family. On the day of occurrence the deceased left for his house at about 1-30 p.m. For taking his lunch while the complainant reached the house somewhat late. When he inquired about Muhammad Irfan deceased, he was informed by the inmates that he has not yet arrived, therefore, he started taking his meal. In the meantime, Muhammad Ikhtiar, his neighbour informed him that his brother was lying injured behind the 'Coca' at the joint road. On hearing this he rushed to the spot where his brother was lying in a pool of blood and blood was oozing from the left of his body. The injured was removed in serious condition to the hospital where he succumbed to his injuries. On the arrival of Muhammad Ayaz, A.S.1. (P.W.8) at the hospital, his statement was recorded and reduced into a Murasila which was sent to the police station through a constable for registration of the case.
3. Muhammad Ayaz, A.S.I. (P.W.8) took up the investigation, prepared the injury sheet of the deceased and handed it over to the doctor. During the investigation he arrested Ghulam Rasool, the acquitted co-accused on 15-10-1989 under section 54, Cr.P.C. And on interrogation disclosed the name of the appellant who was also arrested on 23-10-1989. The Investigating Officer recovered the knife (the weapon of offence) at the instance of accused-appellant in presence of its marginal witnesses which was sealed into a parcel. He also prepared the site plan at the pointation of the appellant.
4. Muhammad Yousaf appellant was produced before Zahir Khan Kansi, E.A.C. (P.W.6) who recorded his confessional statement Exh.P.F. On completion of the investigation both the accused were put on trial before the Additional Sessions judge, Quetta.
5. The Additional Sessions Judge, relying on the confessional statement of the appellant, recovery of the knife, medical evidence and the motive given in the retracted confessional statement found the accused-appellant guilty of the offence and on conviction sentenced to the term of imprisonment and fine stated above.
6. Ghulam Rasool, the co-accused, was, however, acquitted for lack of any corroborative evidence to the retracted confessional statement. The conviction and sentence of the appellant was maintained by the learned High Court on dismissal of his appeal.
7. It was contended by the learned counsel appearing for the appellant that in absence of any direct and circumstantial evidence lending support to material particulars given in the confessional statement, conviction could not have been based on the accepted principle of administering criminal justice. The voluntary and truthful nature of the confessional statement was also doubted and similarly the recovery of the knife as the weapon of offence. The failure of the prosecution to investigate into the motive for commission of the offence was also stated to have highly prejudiced the prosecution case specially the appellant has no motive of his own to commit the murder. The confessional statement was also stated to be unnatural and verbatim reproduction of the statement of the appellant made before the police. It was lastly contended that the learned High Court failed to consider the effect of the statement of the accused made on oath under section 340, Cr.P.C. Denying the involvement in the offence.
8. After hearing the learned counsel for the appellant and going through the evidence on record we find substance in the contentions raised. Admittedly there is no direct evidence connecting the accused with the commission of the offence. It is in the prosecution evidence that when the Investigating Officer was in search of finding out someone to be connected with the murder and in this respect several youngsters were arrested and detained in the police station as is evident from the statement of Yawar Arshad (P.W.7) who has stated as follows:-- "On 7-10-1989 when I came back from duty I came to know at my house that some boy has been murdered, and police had come after me. Later police came and I was taken to police station. For one night I was kept in police station, in the morning I was released. Muhammad Irfan was known to me. Muhammad Irfan had never disclosed anything to me. I had only Salam Doha with him and we had no relation."
9. In cross-examination the witness stated as follows:-- "It is correct that on suspicion other boys of the locality were also taken away by the police. It is correct that the accused persons present in the Court were also arrested in suspicion."
10. Admittedly the accused-appellant was a young school-going boy and a student of 6th Class during the days of occurrence. In this background it will be beneficial to refer to his confessional statement and the material particulars therefrom to assess whether, any corroboration required in the circumstances of the case has been made available by the prosecution at the trial. The appellant has stated that "Ghulam Rasool alias Baboo is is friend and his friend Irfan had friendship with a girl and Irfan used to roam about her house to tease her. Ghulam Rasool had several times desisted Irfan from sitting in front of her house but he did not pay any heed to it. That on the day of occurrence Ghulam Rasool came on a bicycle and informed him of the matter, asked him to help him in doing away with and for that purpose handed him over a `Chhuri' which he kept in his pocket. Thereafter both of them came to the place of occurrence and waited for arrival of Irfan. It was at about 2-00 p.m. That Irfan came there who was questioned by Ghulam Rasool about the purpose of arrival at the spot and took him to a place near the shop of Haji and started belabouring him with fists and blows. Ghulam Rasool caught hold of him and directed the appellant to beat him. He, thereafter, drew out the knife and stabbed him whereafter Ghulam Rasool lost his grips and the deceased started running away from The spot and fell down near the shop. Ghulam Rasool asked him to follow the deceased but as a young boy was present nearby and he had started running away from the spot, therefore, Ghulam Rasool left the spot on his cycle while he left for the house of his paternal-aunt and hid the `Chhuri' on the roof of her Kotha".
11. For the safe dispensation of criminal justice the superior Courts have generally refrained from basing conviction solely on retracted confession and have always sought for some reliable corroborative evidence regarding material particulars in the confessional statement. In the instant case not only the very narration of the facts given in the alleged confessional statement are not confidence inspiring but such corroboration is not available in the prosecution evidence. The appellant had no enmity of his own with the deceased and motive for stabbing is stated to be at the behest of Ghulam Rasool, the acquitted accused. The prosecution, however, failed to produce the said girl to prove her resentment from Ghulam Rasool's association with her. No evidence has been led to support the motive set up in the confessional statement. So much so that even the name, parentage and present address of the girl have not been disclosed in the evidence. No evidence has been led that the deceased had ever been seen in the vicinity of the house where the said girl is stated to be residing. It also does not stand to reason that Ghulam Rasool, if he had the grievance at all, would have handing over the dagger to the appellant for commission of the offence beforehand and himself would have chosen to be I C empty-handed spectator.
Prosecution, therefore, failed to prove the motive.
12. As far as recovery of the dagger is concerned the learned High Court has accepted it a corroborative piece of evidence. In the confessional statement it is mentioned that the appellant led the police party to the house of his paternal-aunt where he had kept the weapon of offence (dagger) hidden on the first floor of the house. However, Ahmed Yar (P.W.4) the witness to the recovery, has stated that recovery was made from the house of the father of the D appellant. No reliance, therefore, could have been placed on the recovery evidence.
13. The voluntary nature of the confessional statement is also shattered by the statements of Zahir Khan, EA.C. (P.W.6) and Yawar Arshed (P.W.7). Zahir Khan (P.W.6) in his cross-examination, has stated that he did not know whether the Sub-Inspector was present in the Court premises when the confessional statement was being recorded. On the other hand P.W.7 has stated in clear words that police suspected and arrested several persons and kept them under police custody for several days, including the witness and the appellant, before the confessional statement was procured. It need not be pointed out that prosecution has to prove that the confessional statement is voluntary in order to be used as evidence which it failed to prove beyond any reasonable doubt.
' For the reasons stated above we are inclined to hold that the occurrence is unwitnessed and the appellant was apprehended on suspicion like others and made to confess which has been retracted. The confessional statement is neither voluntary nor supported by any reliable corroborative piece of evidence. Resultantly, this appeal is accepted, judgment of the learned High Court is set aside and the appellant is acquitted of the charge. He shall be set free forthwith if not required in any other case.