1. ' BY this judgment I intend to dispose of the Criminal Jail Appeal No,. 107 of 993 arising out of judgment dated 4-9-1993 passed by the learned Fourth Additional Sessions Judge. Larkana in Session Case No, 169 of 1989 convicting the appellant under section 302, P.P.C. And sentencing her to suffer imprisonment for life with fine of Rs.50,000 and in case of default to suffer further R.I. For three years more. It was also ordered that half of the fine, if recovered, should be given to the legal heirs of deceased baby Roze Khatoon. The appellant was also convicted under sections 369 and 404, P.P.C. And sentenced to suffer R.I. For 3 years and fine of Rs.5,000 and R.I. For one year and fine of Rs.3,000 respectively. In case of default, she was ordered to undergo R.I. For one year and four months respectively.
2. ' The brief facts, according to the prosecution case as disclosed in F.I.R., are that the complainant Shah Murad is the father of baby Roze Khatoon, aged about 7 or 8 years. One Naban Bhutto resided in his Muhalla and his wife, Mst. Darya Khatoon the present appellant, was on visiting terms with his family. On the day of incident i,e, 7-2-1989, when the complainant came back to his house he was informed by his wife that his daughter was missing. On his further inquiry, his wife informed him that Mst. Darya Khatoon, hereinafter referred to as the "appellant", had come to their house and after her departure, baby Roze Khatoon was found missing. The complainant informed his brother and they both went in search for baby Roze Khatoon. During the search they met P.W. Madad Ali (Exh.7) and one Pahlwan at Rahmatpur and they informed the complainant and his brother that baby Roze Khatoon was seen by them in a Tonga with Mst. Darya Khatoon. The complainant, accompanied by them went to the house of the appellant they found it locked. On the next morning, the complainant again visited the house of the appellant and enquired from her about the whereabouts of his daughter but she showed her ignorance about the deceased's whereabouts. The complainant on the advice of his neighbors lodged F.I.R. On 8-2-1989 about his minor daughter's kidnapping by the appellant. It was further alleged that the minor girl was wearing golden Wallis (in her ears) at the time of kidnapping.
3. ' The S.H.O after registering the F.I.R. Under section 363, P.P.C. And Section 11 of Zina (Enforcement of Hudood) Ordinance, 1979 started investigations. He visited the place of incident and recorded statements of P.Ws. On 15-2-1989 the dead body of baby Roze Khatoon was recovered from Dadu Canal. On 17-2-1989 the S.H.O. Arrested the appellant who also produced the golden Wallis from her house and Mashirnama was prepared. On the same day the appellant led the police party to the place from where baby Roze Khatoon was, allegedly thrown by the appellant in the water after removing her ear-rings. On 18-2-1989 the accused was produced before Resident Magistrate, Larkana where she recorded her Judicial Confession and she was then remanded to Judicial custody.
4. ' In her confession she admitted that she took the deceased in a Tonga near Dadu Canal where she left the Tonga after paying him. Thereafter, she took away the golden Wallis from the girl and pushed her in the flowing water of Dadu Canal.
5. ' The S.H.O., after completing the investigation and adding section 302, P.P.C. Submitted the challan in the Court of S.D.M Larkana, who sent up the case to Sessions Judge, Larkana from where on 2-4- 1990 the case was transferred to IVth Additional Sessions Judge, Larkana. The charge under sections 369, P.P.C. And 404, P.P.C. Was framed to which the accused pleaded not guilty.
6. ' The prosecution, in support of its case, examined (i) Shah Murad, the Complainant (father of the deceased) (Exh.4), (ii) P.W. Muhib Ali (Exh.6), (iii) P.W. Madad Ali (Exh.7), (iv) P.W. Mst. Sultan Khatoon, mother of the deceased baby Roze Khatoon (Exh.8), (v) Mashir Amir Jan (Exh.9), (vi) Mian Iqbal Ahmed, the then Resident Magistrate Larkana, who recorded the Judicial Confession, (Exh.16), (vii)
7. Dr. Abdul Wahab, Medical Officer, Chandka Medical College and Hospital, Larkana (Exh.18), who conducted postmortem and, prepared Medical Report, (viii) Khadim Hussain, Tapedar, who prepared the sketch of place of incident (Exh.20), and (ix) Ghulam Kabir, S.H.O.. Taluka Police Station and the Investigating Officer (Exh.22).
8. ' On the other hand, the appellant, in her statement recorded under section 342. Cr.P.C, (Exh.24) stated that the case was false and nothing had been recovered from her. She also stated that she had not been produced before the Magistrate for her judicial confession and that she was maltreated. She also complained that the police had taken all articles and finally that she was innocent. She, however, neither examined herself on Oath nor led any defense.
9. ' The learned Additional Sessions !Min, after hearing the parties and going through the record, found the appellant guilty and convicted and sentenced her as mentioned hereinabove.
10. ' I have heard the learned A.A.-G., Mr. Zawwar Hussain Jafri. The appellant was not represented by a counsel.
11. ' The appellant. Though admitted her guilt as per the judicial confession recorded by the Resident Magistrate. Larkana (Exh.17) on 17-2-1989 but she has denied all the charges in her statement under section 342, Cr.P.0 and has pleaded innocence. According to her, she has been involved in this case as she refused to shift from the place which she had taken on rent a few days earlier to the incident.
12. ' The learned A.A.-G. Has supported the judgment dated 4-9-1993, passed by the learned 1Vth Additional Sessions Judge, Larkana. His main contention is that the accused has admitted her guilt in her judicial confession Ind as such the case has been proved beyond doubt and the conviction is to be upheld.
13. ' The learned Trial Court had formed three points for determination:
(1) The first one is whether baby Roze Khatoon died due to drowning?
(2) Whether deceased baby Roze Khatoon was kidnapped and after removing and misappropriating her golden ear rings she was thrown in the flowing water of Dadu Canal by the accused?
(3) What offence the accused has committed?
14. ' On the first point, the learned trial Court, after discussing in detail the statements of witnesses and the Medical Report, submitted by the Medical Officer, reached the conclusion that baby Roze Khatoon alias Babli died due to drowning. The defense counsel did not dispute or question the said conclusion. In my opinion, the medical report leaves no doubt that baby Ron Khatoon died due to drowning.
15. ' However, there are two discrepancies to be mentioned. First, that Medical Officer has stated that the dead body of baby Roze Khatoon was referred for post-mortem on 15-2-1989 while Ghulam Kabir, the S.H.O. Of Taluka Police Station, Larkana has mentioned that it was 16-2-1989. The second that the Medical Officer completely ignored to verify if the ears of the deceased had 15 holes in each ear as the motive according to the prosecution was enticing away the deceased for the golden Wallis.
16. ' Now, taking the second point that is, whether the deceased baby Roze Khatoon was kidnapped and after removing and misappropriating her golden ear-rings, she was thrown in the flowing water of Dadu Canal by the accused?
17. ' As already mentioned in the judgment dated 4-9-1993 there is no eyewitness to the actual incident whether the deceased was pushed in the canal by the appellant and as a result she was drowned and died or if she fell accidentally into the canal or if any other person could have committed such a crime.
18. ' The police record, statements of the witnesses and the statement of Tapedar (Exh.20) are very scanty as to the location of the residence of the complainant and the accused, the distance of the canal to the residence of the deceased or other dwellers. There is also no detail available as to from where the accused and her husband had come to live in the said village or where did the accused's husband disappeared after the day of incidence. Another factor which creates doubts is that the accused was offered surety twice but every time the same was withdrawn immediately.
19. ' I have gone through the confession of the accused very carefully and find it suffers from a number of short-comings which arouse doubts in my mind as to the nature of the confession and if it is voluntary or even was true.
20. ' There are serious discrepancies in the statements of the witnesses in regard to the number of Wallis recovered, timing at which the deceased was seen with the appellant and also the date on which the appellant was taken into custody. There is no evidence at all if the deceased had fifteen holes in each ear. Even the Medical Report is silent on the point. No' question had been asked from the Medical Officer if the deceased had 15 holes in each ear to confirm the number of Wallis she was wearing as, in my opinion , a girl of 7 or 8 years having 15 holes in each ear, seems impossible.
21. ' Now, going back to the evidence led by the prosecution: Shah Murad (P.W.1) deposed that he was informed by Pahlwan and Madad that the deceased was seen by them going in a Tonga at about 2-00 p.m. He further deposed that "police arrested the appellant on the same day when F.I.R. Was registered and 'the golden Wallis were produced by the appellant which were subsequently handed over to him by the police".
22. ' Muhib Ali (Exh.6) deposed that Shah Murad told him that his daughter was taken away by the appellant from his house at 12-00 noon and that both of them were seen by Pahlwan and Madad going in a Tonga at about 12-15 p.m.
23. ' He was further informed that the appellant produced 18 or 19 golden Wallis from her house before the police.
24. ' Madad Ali, in his statement (Exh.7) deposed that "at about 12-00 noon he was accompanied by Pahlwan when they saw Mst. Darya Khatoon wife of Nathan, going in a Tonga with the deceased Roze Khatoon towards town". He further stated that "on the next day morning the complainant filed the report whereupon the police arrested the accused from near Naga Shah Mazar. Mst. Sultan Khatoon in her statement (Exh.8) speaks of production of 20 or more Wallis by the appellant Amir Jan, who is one of the Mushirs, very clearly in his cross-examination (Exh.9) deposed that "the police arrested the accused on the day of the incident in the evening. She had also produced the ear-rings on that day".
25. ' Keeping in view the above statements, now I will take up the statement of the Resident Magistrate, Mian Iqbal Ahmed, who recorded the Judicial Confession of the appellant, In his cross- examination. He admitted that he did not ask the appellant "as to why she was making the confession" or "whether she was maltreated by the police.
26. ' The Investigation Officer, in his cross-examination stated that "neither he recorded the statement nor interrogated the Ton'gawala". He also denied that he received the information about commission of offence on the same day i,e, 7-2-1989 and arrested the appellant and that the Wallis were produced by the appellant on the same day. The Investigation Officer also admitted that both Mushirs met him on 8-2-1989 at the place of incident but "he does not know as to how they were made Mashirs of dead body on 16-2-1989". He also showed his ignorance that the complainant, P.Ws. And Mushirs are inter-related.
27. ' After going through the depositions and cross-examination of the various witnesses, the glaring fact which comes to the light is that the accused was taken into custody on the next day of the incident when the F.I.R. Was lodged. This admission of Amir Jan, who was one of the Mushirs, belies and destroys the credibility of the Mushirnama of body search, arrest and recovery of Wallis which is shown to have taken place on 17-2-1989. So also these admissions of Mashir and other witnesses make the Judicial Confession dated 17-2-1989 a farce; which was retracted and as such not reliable and dependable at all.
28. ' The other disturbing fact is that according to the facts of the case the appellant had moved to the area only about a few days before the occurrence but when she was allegedly seen going in a Tonga with the deceased no one objected or followed them or stopped them and made inquiries.
29. The Tonga driver, who was an important witness, was not examined.
30. ' The evidence led by the prosecution also does not indicate about the remaining missing Wallis. No questions were put to any of the witnesses or even to the appellant in regard to it.
31. ' The recording of judicial confession by the Magistrate without complying the mandatory requirements of law also goes against the prosecution.
32. ' The learned trial Court has discussed in great detail the various decisions on this point. The first case discussed is that of Mst. Said Begum v. The State PLD 1958 (W.P) Lah. 559, wherein the recording of confession has been discussed. The second case discussed by him is that of Muhammad Nasim Agha and another v. The State 1978 PCr.LJ 579 wherein again the rules for recording judicial confession have been discussed which are as under:-- "8. (1) The Magistrate should invariably satisfy himself that the confession is voluntary, for which purpose the accused should be questioned as follows:-
(a) Whether the accused had been given any inducement, threat or promise by the police or anybody else to make a confession.
(b) Whether the accused understands that after making a statement, whether confessional or not, before the Magistrate he will not be remanded to police custody but will be sent to the judicial lock-up?
(2) If the accused is disposed to make a confession, the Magistrate should question him in detail about all the circumstances of the case for the more detailed statement the greater are the chances of estimating its true value. When questioning the accused, the Magistrate should not cross-examine him or seek to entrap him, but should permit the accused to give the version of the case.
(3) The Magistrate should whenever feasible examine the body of the accused provided the accused consents to such examination. If there appears grounds of suspecting violence, he should have the accused examined by a Medical Officer, if possible.
(4) All questions put to the accused must be recorded in writing and his answers thereto must also be recorded in his words.
(5) The Magistrate should add to the certificate required by section 164 of the Cr.P.C. a statement in his own hand, of grounds on which he believes that the confession is voluntary the precaution which he took to remove the accused from the influence of the police and the time, if any, given to him for reflection.
33. (6)Accused who declines to make a statement before the Magistrate, or an accused who makes a statement, whether confessional or not, should not be remanded to police custody under any circumstances.
(7) After a prisoner has made a confession, he be committed to jail. And the Magistrate should note on the warrant for the information of the ' Superintendent of the Jail concerned, that the prisoner has made a confession.
34. ' In the present case, there is no doubt that the Magistrate who recorded the judicial confession did ask the police to unlock the hand-cuffs of the appellant and also gave her time to think and make the confession but, admittedly, he did not ask her as to why she is making this confession and whether she was maltreated or tortured by the police at the police lock-up. Looking at the circumstances that the body of Baby Roze Khatoon was recovered on 15-2-1989 and the post- mortem was performed on the same day still the police took time to take and produce the appellant before the Magistrate on 18-2-1989. The entire evidence led by the prosecution shows that the appellant was taken into custody by the police on the date when the F.I.R. Was lodged and as such it was the duty of the Magistrate to ask the appellant as to when she was taken into custody and whether she was subjected to maltreatment or torture during her detention in the police lock-up which was without any entry in the Roznamcha. As such even if the Magistrate had observed certain formalities prescribed in law, he failed to follow the procedure laid down by the law as well as by this Court and the superior Court.
35. ' Let us see what will be the value and credibility of a judicial confession which was recorded after inordinate delay of ten days while the appellant remained in the police custody and which was retracted by her statement under section 342, Cr.P.C.
36. ' The learned Trial Judge has himself discussed this point as under:-- "I have given due consideration to this aspect of the case, no doubt the P.Ws. Have deposed that she was arrested on 8-2-1989 and Mashirnama of arrest showed her arrest on 17-2-1989 but this discrepancy is of no importance so far the facts and circumstances of the present case are concerned. Initially the F.I.R. Was lodged under section 363, P.P.C. Read with section 11 Offence of Zina (Enforcement of Hudood) Ordinance, 1979, wherein the name of the accused was given as the culprit and she might had been apprehended for the purpose of interrogation and was then let off, but even if it be presumed that she was arrested on 8-2-1989 but was produced before the Magistrate for her judicial confession on 18-2-1989 is not fatal for prosecution."
37. ' There is no denial that High Courts and the Supreme Court both have held in many cases that the mere fact that the person making judicial confession remained in police custody before making such confession does not lead to conclusion that confession was tutored Syed Sharifuddin Pirzada v. Shoukat Khan. PLD 1972 SC 363. But, each case is to he examined separately according to its facts and circumstances and Courts, generally look with extreme suspicion upon any undue time lag which elapses between the arrest of the accused and the making of his confession because this time lag can, and is often used for putting pressure upon the accused or giving him threat, torture, or inducement or promise to make him confess and which cannot be wiped of in a short spell which is allowed by the Magistrate before recording such confession Muhammad Nasim v. The State, 1978 PCr.LJ 579. I have already mentioned that there has been a delay of 10 days in the recording of confession of the appellant and the date of her actual arrest was suppressed and a fake date i,e, 17-2-1989 has been shown in the record. It is regrettable that the .S.H.O. Collaborated in this offence.
38. ' The next point, which is a natural corollary of the above, is that the judicial confession was retracted by the accused.
39. ' There are a number of reported cases in which it has been held by the Courts that if a confession is voluntary and true, it can be made the basis of conviction, but in the same breath it has been observed that the safe rule of prudence requires independent corroboration. On this point the trial Court has discussed and relied on the following cases:- 1) PLD 1964 SC 813 State v. Minhon and Gul Hassan ' In the above case My Lord Mr. Justice Hamoodur Rehman (as he then was) observed as follows:-- "As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confessions, whether judicial or extra-judicial, could legally be taken into consideration, against the maker of those confessions himself, and if the confessions found to be true and voluntary, then there was no need at all to look for further corroboration. It is now well-settled that as against the maker himself his confession judicial or extra-judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. (the question, however, as to whether in the facts and circumstances of a given case the Court should act upon such confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law. As observed even by Munir, C.J. In his commentary on the law of evidence at page 168 (Vol.1). 'It is a settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot be true' ."
40. ' In the next case of Nadir Hussain v. Crown 1969 SCMR 442, it was observed as under:-- "Mr. Sharif contended on behalf of the Crown that these infirmities in the prosecution evidence only create doubt as to the identity of the corpse, but do not in any way affect the value of the confession which has been held to have been voluntarily made. This argument overlooks the rule of caution universally applied to the cases of retracted confession that such confession should not be acted upon unless corroborated in material particulars by reliable evidence."
41. ' The next case relied upon is that of Muhammad Nasim v. The State 1978 PCr.LJ 579, wherein the Court observed as under:- "... But the mere fact that it was a detailed confession would not, in our view, mean that the confession, so far as the present case is concerned, was voluntary, especially as there is no circumstances which corroborates the confession. No doubt, if a confession is voluntary and true, it can be made the basis of conviction, but the safe rule is that a conviction, if it is to be based upon a confession should be corroborated."
42. ' In the next case i,e, Ghulam Muhammad v. The State 1982 PCr.LJ 1217, the Court observed that:-- "Assuming for the sake of arguments that the confession was voluntary and as such admissible in evidence yet the confession having been retracted, it is well-established that a retracted judicial confession is seldom made the basis of conviction without being materially corroborated. It is well- established that even if a confession is voluntary it must also be established that it was true and for the purpose of establishing its truth it is necessary to examine the confession and compare it with the rest of the prosecution evidence and the probabilities of the case."
43. ' Similarly in Muhammad Amin v. The State PLD 1990 SC 484, Mazhar Hussain v. The State 1990 MLD 195, and Gulan alias Gul Muhammad v. The State 1990 MLD 1122, the Courts have observed as under:-- "It is true that it is not illegal to base the conviction of an accused on the statement made by him under section 164, Cr.P.C., which statement was later on retracted but nevertheless in the absence of a single piece of completely untarnished evidence in this case connecting the appellant with the crime, we think that it will not be safe to uphold his sentence on the kind of evidence produced at the trial."
44. "The confession recorded in compliance with the provisions of sections 164 and 364, Cr.P.C. Then it becomes judicial confession, the law attaches great sanctity to it being free from duress and undue influence, and conviction can be based upon that confession if corroborated by independent circumstantial evidence."
45. "It is now well-settled proposition of law that a retracted judicial confession is not to be acted upon by the Courts unless it is corroborated in material particulars. It is so held by the Supreme Court of Pakistan in the case of Nadir Husain v. Crown reported in 1969 SCMR 442."
46. The above observations clearly show that the Courts have laid down the principle that the retracted judicial confession is not be acted upon by the Courts unless and until it is corroborated in material particulars.
47. ' Apart from the above cases, discussed by the trial Court, in the case of Azeem Shah v. The State PLD 1987 Quetta 96, wherein the accused, who was also on the visiting terms with the deceased, in her 164, Cr.P.0 statement alleged to have made confession which was subsequently retracted by her statement under section 342, Cr.P.C. In the said case there were eye-witnesses also. It was observed by the Court that "It is not denied that independent witnesses of the locality were available at the relevant time but none of them was made a witness of the recovery and instead, two chance- witnesses and friends inter se and one being friend and neighbor of the deceased were made witnesses of this recovery. It has also not brought on record whether the place from where the recovery was made is contiguous to the place of incident or is far away therefrom." Due to the aforesaid reasons, recovery of the alleged weapon of offence was declared to be highly doubtful and the Court reached the conclusion that "it would not be safe to rely upon it as a factor for recording conviction of the appellant. (underlining is mine). It was also observed that the appellant was produced before the Magistrate for the purpose of recording his confession 5 days after his arrest and, as such, it was held that "the delay of 5 days clearly indicates that the appellant had not made a confession and it was either extracted from him or he was coerced into making the same or some inducement was offered to him for making the confession." It was finally held that "the retraction and the delay in recording the confession make it highly doubtful. We are, therefore, unable to take into consideration the confessional statement of the accused as its evidentiary value is next to zero" and the appeal was accepted.
48. ' In the present case there are no eye-witnesses of the occurrence and the prosecution has based its case mainly on circumstantial evidence as it was in the case of Muhammad Amin v. The State (supra). There is no doubt that the offence committed against the young little girl is horrible and the extreme punishment awarded is fully justified in case it is established beyond reasonable doubt that the appellant was indeed the perpetrator of this heinous crime. Unfortunately, however, the evidence produced by the prosecution at the trial is not all that satisfactory and sufficient to establish the connection of the serious offences for which the appellant is charged and has been convicted.
49. ' It is thus seen that in cases where there was any unexplained delay of more than 24 hours in recording the confession, it was not taken into consideration by the superior Courts and there is a general consensus that such a confession should be excluded from consideration.
50. In the present case not only the confession was recorded after an unexplained delay of ten days but under the circumstances it is involuntary which was also retracted. As already discussed above the principle laid down in various judgments is that a retracted confession, unless fully corroborated in all material particulars by extraneous and independent evidence, cannot be used against the confessor.
51. ' In the present case the appellant was produced before the Magistrate for recording her judicial confession after bout ten days of her arrest. The eyewitnesses to the recovery of the golden Wallies and those who allegedly saw her going in a Tonga with the deceased baby Roze Khatoon, are all inter-related; the date of arrest and the Mashirnama of body search and recovery of Wallies bear false date and the conduct of the S.H.O., who has collaborated in arresting the appellant and keeping her in lock-up without any entry and giving a wrong date of arrest, has nullified the evidentiary value of the confession and as such totally unacceptable.
52. ' From the above discussion, I am fully convinced that the confession made by the appellant was not voluntary and, as such the same cannot be made basis of conviction. The learned A.A.-G., Mr. Zawar Jaffery very candidly conceded on this point. But, he still contends that the appellant enticed away the girl to take the golden Wallies as per her statement under section 164, Cr.P.C. And as such liable to be convicted for offence under section 369, Cr.P.C. But, as I have already held in the preceding paragraph that the confession of the appellant was not voluntary and the same was retracted later, the false date of arrest given by the police and the Mashirs, the appellant being in police custody for ten days prior to her judicial confession, no question put to the witnesses in regard to the missing Wallies, are the obvious infirmities of the judicial confession. The prosecution has failed to connect the appellant with the crime and prove its case beyond reasonable doubt.
53. In the circumstances of the case, I do not think that it will be safe to uphold the conviction and sentence against the appellant as she must be given the benefit of doubt.
54. ' Accordingly, this appeal is allowed. The conviction and sentence passed against the appellant is set aside. The appellant shall be set at liberty, if not required in any other case.