' Appellant Deedar Ali was convicted on 17th April, 1993 by 2nd Additional Sessions Judge, Larkana to undergo imprisonment for 7 years and to pay a fine of Rs,10,000. In default of payment of fine the appellant was to undergo further R.I. For 6 months. This sentence was passed against the appellant for an offence under section 304, Part I, P.P.C. The allegations against the appellant are that he has caused the death of one Kandoo alias Hussain Bux and Mst. Rahima on 10-3-1988.
2. The facts of the case are that complainant Rabban had lodged the report at Police Station Shandadkot on 10-3-1988 alleging that on the previous night his nephew the appellant Deedar Ali had caused the death of deceased Hussain Bux and Mst. Rahima with a gun at about 3 a.m. In the night when they were sleeping at a cattle-pen near the house of the complainant. In the F.I.R.
Complainant Rabban stated that he had woke up on the report of the gun fire and so also P.Ws.
Ghulam Nabi and Zulfiqar and that they had seen on torch light the appellant having fired at the deceased Hussain Bux and Rahima and then he ran away. After the F.I.R., police started the investigation. Arrest of the appellant was affected on 12-3-1988. On the same day judicial confession of the appellant was got recorded and so also the 164, Cr.P.C. Statement of P.Ws.
Ghulam Nabi and Zulfiqar. Challan was produced against the appellant and charge was framed against him on 15-2-1989, to which he pleaded not guilty. The prosecution examined P.Ws. Rabban (Exh.8), P.W. Zulfiqar (Exh.9) and P.W. Ghulam Nabi (Exh.10), on the point of ocular testimony. All these three witnesses did not support the prosecution evidence. Complainant Rabban stated that accused was his nephew. On the night of incident he had woke up on gun reports and had found a person armed with a gun running away whom he could not identify due to darkness of the might.
He found dead bodies of Mst. Rahima and Hussain Bux lying in the cattle-pen. He stated that Zulfiqar and Ghulam Nabi also came there on cries. He stated that the F.I.R., which was lodged by him, was not read over to him and he denied the contents of the F.I.R. To be correct. He was declared hostile by the prosecution and was also cross-examined. He also stated before the Court that the present appellant was arrested on the same day when the police visited the Wardat and he was beaten by the police. He also stated that the wife and the two sisters of the appellant were also taken away by the police along with the appellant and that once again when he had gone to the police station he had seen the police maltreating the appellant. Complainant went to the extent of stating that in his presence the police was forcing the appellant to confess the killing of deceased Rahima and Hussain Bux otherwise his womenfolk, who were already present in the police station, will be disgraced and stripped. The complainant Rabban also stated further in the deposition before the Court that the womenfolk of the appellant were actually released by the police after he had made the judicial confession. In similar terms the witnesses. Zulfiqar and Ghulam Nabi did not support the prosecution case and they also admitted that the appellant was maltreated by the police and forced to make the judicial confession. Both these witnesses were also declared hostile by the prosecution.
3. In addition to the above-cited ocular testimony the other evidence collected by the police consisted of recovery of an unlicensed gun from possession of the appellant and empties from the Wardat. To prove this portion of the evidence, the prosecution examined P.W. Pehalwan (Exh.11), who was the Mashir of the preparation of the memo. Of the scene of offence as well as the memo.
Of the recovery of the gun from the appellant. P.W. Pehalwan also did not support the prosecution on the point of recovery of the gun from the appellant in his presence. He also stated that the contents of the Mashirnama were not read over to him by the police. He simply admitted the arrest of the appellant in his presence, without giving any particular date of the arrest of the appellant.
The prosecution also examined Muhammad Mour (Exh.5), who was Reader of Mukhtiarkar at Shandadkol on 12-3-1988. He produced the original judicial confession recorded by Muhammad Bux Vistro, the Mukhtiarkar and F.C.M., Shandadkot. This witness stated that Muhammad Bux Vistro had died and that he was conversant with the handwriting and signatures of Muhammad Bux. He had deposed that the document purporting to be the judicial confession of the appellant was bearing the signatures of Muhammad Bux Vistro. Similarly, this witness Muhammad Moth., also produced 164, Cr.P.C. Statements of P.W. Ghulam Nabi and Zulfiqar which purported to have been recorded by Muhammad Bux and were bearing his signatures. Evidence of Dr. Amir Ali (Exh.7) showed that he had conducted the post-mortem examination on the person of the two deceased.
He had observed fire-arm injuries on the dead bodies of Hussain Bux and Mst. Rahima and he was of the view that the death of Hussain Bux and Rahima were the result of the fire-arm injuries suffered by them. In addition to this evidence prosecution also examined P.W. Gulbahar (Exh.12), who was the corps bearer and P.W. Lutfullah (Exh.13), who was the Investigating Officer. P.W.
Lutfullah in his deposition stated before the trial Court that at the instance of complainant Rabban he had recorded the F.I.R. At 10 a.m. On 10-3-1988, visited the Wardat, seen the dead bodies on the Wardat and arrested the appellant on 12-3-1988. He also secured an unlicensed gun from the possession of the appellant. He also stated that he produced the appellant and the witnesses before the Mukhtiarkar and F.C.M., Shandadkot for recording their statements under section 164, Cr.P.C., on the same day i,e, 12-3-1988. He also produced chemical examiner's report which showed that earth, which was secured from the place of incident, was stained with human blood. He also produced the report of the Ballistic Expert showing that three crime empties secured by the Investigating Officer from the scene of offence were fired from the shot-gun said to have been recovered by the S.H.O. From the possession of the appellant. The statement under section 342, Cr.P.C. Of the appellant was recorded by the trial Judge in which he denied the allegations of having caused the death of the deceased Hussain Bux and Mst. Rahima. He denied having produced the gun before the police and stated that it had been foisted on him. In support of having confessed the murder of Hussain Bux and Rahima before the Magistrate in a statement under section 164, Cr.P.C., the appellant stated that the said confession was neither true nor voluntary as it was obtained from him by coercion. He stated that the police had maltreated him and had brought his women folk to the police station. He was compelled to make the statement, confessing the killing of the two deceased. The appellant did not examine himself on oath and he also did not lead any evidence in defense. The trial Judge after considering the above evidence has convicted the appellant and passed the sentence as described above. Learned counsel for the appellant urged in his arguments that the entire prosecution story has been belied, as the three important eye-witnesses have not supported it. Deceased Rahima is the sister of the complainant while P.Ws. Ghulam Nabi and Zulfiqar are also near relations of the complainant. P.W. Ghulam Nabi is son of the sister of the complainant while Zulfiqar is the cousin of the complainant. The appellant is also a nephew of the complainant. Obviously all the eye-witnesses and the accused are members of the same family. The dead bodies of the two deceased were found lying inside the house of the complainant while the house of the appellant is situated nearby. Deceased Rahima was a widow and was living with the complainant, who was also father's sister of the appellant.
Hussain Bux was a relation of the complainant and was his employee.
4. Learned counsel for the appellant has contended that the recording of conviction by the trial .Judge under the circumstances of the case, is not based on the evidence, which was available before the trial Judge but the judgment appears to have been based on surmises. The evidence, which has weighed with the learned trial Judge for recording conviction of the appellant, is the judicial confession and the 164, Cr.P.C. Statements of P.Ws. Zulficiar and Ghulam Nabi. The other evidence which may have weighed with the learned trial Judge could be the report of the Ballistic Expert which showed that the empties were recovered from the scene of offence had been fired from the gun said to be the murder weapon in this case. Contention of the learned counsel for the appellant was that the principles for appreciation of the evidence laid down by the superior Courts have not been followed by the trial Judge in this case and that the evidence was not sufficient for convicting the appellant. The learned counsel for the State, however, did not support the impugned judgment and agreed with the contention of the counsel for the appellant and conceded to the setting aside of the judgment and the sentence.
5. In order to appreciate the evidence in this case, I am taking up the "judicial confession" which appears to have been proved through the Magistrate in whose presence it was made. The Magistrate should have been subjected to cross-examination to find out if the confession was true and voluntary, before the same was made basis for conviction in this case. The Magistrate could not be cross-examined, as he had died. It need not be repeated that in this case ocular evidence is lacking and all the eye-witnesses have been declared hostile as they did not support the story of the prosecution. They did not say anything against the present appellant. They stated that they could not identify the assailant who caused the death of Hussain Bux and Rahima due to darkness of the night.
6. The appellant at the very first instance before the trial Court retracted from his confession and did not plead guilty. Therefore, this is a case of retracted confession and in such case the confession could not solely be made basis for conviction. The case of Rasool Bux v. The State 1974 PCr.LJ 325 lends support to my view that a retracted confession cannot be made basis for conviction unless it is corroborated by some other evidence. In this case there is absolutely no other evidence, which may corroborate the retracted confession of the appellant. Not only this but the confession itself has not been proved before the Court as the Magistrate who recorded the same has not been examined and merely examining his reader, who has identified the signatures of the Magistrate on this confession, will not be sufficient to hold that the confession has been proved during the trial. On this point I am supported by the case of Dost Muhammad v. The State PLD 1982 Kar.
1000. The other consideration, which apparently has weighed with the trial Judge for awarding the sentence to the appellant appears to be the 164, Cr.P.C. Statements of the two eye-witnesses, namely, Ghulam Nabi and Zulfiqar. First of all these 164, Cr.P.C. Statements have also not been proved before the trial Judge as the Magistrate, who had recorded the same, was dead and was, therefore, not examined. Merely, examination of his Reader who only identified the signatures on these statements to be of the said Magistrate in my humble view did not amount to proof of the statements under section 164, Cr.P.C. However, taking for granted that these statements were recorded by the said Magistrate, still the purpose of relying on them as a piece of substantive evidence it is necessary to show that before recording of these statements the appellant was to be put on guard i,e, a notice had to be issued to him to apprise him that 164, Cr.P.C. Statements were being recorded which may be used against him as substantial piece of evidence. In this case the date of arrest of the appellant is 12-3-1988, and the date of recording of the 164, Cr.P.C. Statement is also the same i,e, 12-3-1988. Similarly, the date of recording of the judicial confession of the present appellant is also 12-3-1988. Nowhere the prosecution has proved that the appellant had prior notice that such 164, Cr.P.C. Statements will be recorded. The time was also not enough for the appellant to be on guard to seek legal advice so that the witnesses making 164, Cr.P.C. Statement could be cross-examined. The 164, Cr.P.C. Statements which have been produced in evidence before the trial Court by the Reader, show that the appellant had stated before the Magistrate that he will cross-examine the witnesses through his Advocate. This circumstance is very important and reflects upon the "truthfulness and voluntariness" of the confession itself. If on the same date i,e, 12- 3-1988 the appellant was making a voluntary and truthful confession, why should he make a request to the Magistrate that he shall cross-examine the witnesses after engaging a counsel? This strong circumstance reflects upon the "truthfulness and voluntariness" of the confession, and I feel no hesitation to hold that the confession was not voluntary and true. It also shows that 164, Cr.P.C.
Statements recorded by the Magistrate could not be .Used as a substantive piece of evidence against the present appellant. It is now a settled law that 164, Cr.P.*C. Statement could not be used as piece of substantive evidence against the accused unless it is proved that the accused put on guard and he was given ample opportunity to cross-examine the witness. On this point I am supported .By the case of Abdul Hakeem and another v. The State PLD 1982 Kar. 975, in which it has been held by Justice Abdul Hayee Qureshi, the Acting Chief Justice (as he then was) and Justice Ajmal Mian that:-- "Section 265-J of the Code of Criminal Procedure is a glaring departure from the normal rule of the recording of evidence, because it permits reception of the statement under section 164, Cr.P.C. As substantive evidence."
' Further the author of the judgment Justice Abdul Hayee Qureshi also observed:-- "A reading of section 265-J, Cr.P.C. Makes it plain that the statement should be recorded in the presence of the accused, the accused should have notice of the recording of such statement, and he should also be given an opportunity of cross-examining the witness. On the fulfillment of these conditions, the statement could be brought on record, within the discretion of the Court". ...
"Normally in these circumstances, an accused knowing the peril in the process would attempt to engage an Advocate and ask for copies of the police statements in advance, so as to effectively cross-examine the witness. Non-compliance with the spirit underlying section 265-J exposes the statement to serious criticism. After all, if an accused is suddenly marched off to the Court and asked to cross-examine a witness, he cannot effectively exercise his right under the law. It is also a cardinal principle of law enshrined even in the Constitution that every person has a right to be defended by an Advocate of his choice. In these circumstances, if no proper notice is given, failure of justice might inevitably result, and the Court has to be on caution". ... "Applying these tests to the instant cap- we find that no notice in writing was given to the appellants before recording the statements under section 164, Cr.P.C.". ... "Admittedly, the accused were not represented, and therefore, the right of cross-examination had not been effectively exercised. The learned Additional Sessions Judge has admitted the statement under section 164, Cr.P.C. Without adverting to this aspect of the case."
Thus it is clear that the statements of two eye-witnesses recorded under section 164, Cr.P.C. Cannot be made basis for conviction in this case, as they suffer from serious defects of non-providing an opportunity to the accused of engaging a counsel and cross-examining the witnesses. The other piece of evidence, which has been incorrectly and erroneously relied upon by the trial Judge is the Ballistic Expert's report. The trial Judge himself has observed in his judgment that the said gun was secured on 12-3-1988 and was sent to the expert on 6-1-1990 i,e, nearly two years after its seizure.
Still the trial Judge has not appreciated the evidence keeping the cardinal principles of law laid down by the superior Courts in view in this respect.
7. As a result of the above discussion, the judgment of the trial Judge cannot be sustained and the same is hereby set aside. The appeal is allowed. The appellant is acquitted. He is on bail. His bail bond stands discharged.