1. ' M. A. RASHID, J.-Din Muhammad was accused of killing his wife Mst. Zulekha along with the absconding accused Manik, who is step-brother of Mst. Zulekha. He was tried and convicted by Mr. T. M. Abro, Third Additional Sessions Judge, Sukkur, and was sentenced to undergo imprisonment for life.
2. ' The circumstances leading to the occurrence are that about three months prior to the occurrence accused Din Muhammad along with his wife and children came from Sadiqabad and settled in Deh Goi, Taluka Ubauro, District Sukkur. He had admittedly entered into an arrangement with the complainant Alibux Shar for the cultivation of later's land and was consequently allowed to build a but on such lands very close to the house of Alibux.
3. ' On the morning of 26th May 1971, at about 5 a.m. Alibux Shar heard cries coming from the but of the accused person and he rushed towards that hut, holding a torch in his hand. He was followed by P. Ws. Dadlo Machi and Bakhsho Shar, who are residents within a furlong and a half of the scene of occurrence. As the complainant reached the but of the deceased he saw in the torch light that accused/appellant Din Muhammad was standing, catching hold of the legs of Mst. Zulekha, who was lying in the cot, while Manik, the absconding accused, was delivering sharp side hatchet blows on her face and head successively. Accused Manik ran towards the north along with the hatchet and appellant Din Muhammad was caught by the complainant and P. Ws. Dadlo Machi and Bakhsho Shar. The deceased died within a short time within the sight of the complainant and other witnesses.
4. ' The complainant stated in the F. I. R., which he lodged at 7 o'clock at Police Station Daharki at a distance of 7 miles, that the accused told him that his wife was on illicit intimacy with one Gulzar Dasti and that people used to taunt him for that ; that the day before the occurrence Manik Dasti had stayed with him as his guest and by mutual consultation Manik and the accused had killed her. Muhammad Hussain Awan, S. H. O. Of Daharki Police Station, after recording the F. I. R.
5. Proceeded to the scene of occurrence where, in the presence of mashirs Allahyar Khan and Ameer, he secured the blood-stained earth from the scene of occurrence vide mashirnama Exh.
14. He prepared the inquest report of deceased Mst. Zulekha in presence of the same mashirs and sent the same through constable K arimbux to medical officer Ubauro for post-mortem examination and report. He examined the witnesses Dadlo Machi and Bakhsho Shar and secured the torch of complainant Alibux which was found to be in working order. He secured the chola and loincloth of the accused, which according to the S. H. O., was blood-stained and sealed them in a parcel which was later sent to the Chemical Analyser for report. The report indicated positive result of examination of these two clothes of the accused.
6. ' On 27th May, 1971 the accused was produced before the Mukhtiarkar and 1st Class Magistrate Ubauro for recording the judicial confession of the accused. Finally the case was challaned on 27th July 1971.
7. ' Dr. Abdul Qadeer performed the post-mortem examination of the deceased on 27th May 1971, at 7 a.m. On external examination he found-the following injuries on her person.
8. "(1) One incised wound 8" x 2" x brain deep extending from left frontal bone going round cutting the left ear and eye.
(2) One incised wound 3" x 1" x bone deep on the left shoulder joint.
(3) One incised wound 3" x 1/2" x bone deep on the root of the ring middle and index finger on the dorsal surface."
9. ' On internal examination he found the stomach empty and that there was paste of food in the intestines. In the opinion of the doctor the death had-occurred due to shock and haemorrhage.
10. The doctor stated that injury No, 1 was individually sufficient and the rest of the injuries were collectively sufficient to cause death of a person in the ordinary course of nature. In his opinion the death was instantaneous.
11. ' The case of the accused is of complete denial. He has denied any hand in the murder of his wife ; he has denied the blood-stained clothes having, been recovered from him ; and he has denied if he made any judicial confession.
12. ' The prosecution case, is that the actual perpetrator of crime is the absconding accused Manik, who inflicted the fatal blows. But at the same time it is alleged that what Manik did was in furtherance of the common intention of both himself as well as the present appellant. In order to establish constructive and joint liability of the accused the prosecution has also assigned an overt act to the present appellant, and that is that while Manik was inflicting hatchet blows to his sister, appellant Din Muhammad' caught her by the legs. In order to bring home the charge to the accused the prosecution has brought on record evidence of eye-witnesses, the evidence. Of extra- judicial confession, and the evidence of motive.
13. ' It is only complainant Alibux who claims that when he arrived at the-scene of occurrence and threw torch light inside the but he saw the appellant catching hold of the legs of the deceased while Manik was administering the fatal blows. P. Ws. Dadlo and Bakhsho have not supported him with respect-to this part of the story. Dadlo states as follows "As soon as we reached in the but of accused we saw in the light of torch of complainant Alibux that absconder accused Manik was giving hatchet blows to deceased Mst. Zulekha wife of the accused and the-accused Din Muhammad was standing near Mst. Zulekha."
14. ' On this point Bakhsho's statement is to the following effect : "At that time complainant Ali. Bux flashed his torch available in Court-and we saw that accused absconder Manik was giving hatchet blows to Mst. Zulekha wife of accused Din Muhammad.
15. Accused Din Muhammad at that time was standing at about 8-10 paces away from Mst. Zulekha."
16. ' These statements have been made in spite of the fact that both Dadlo and Bakhsho arrived at the scene of occurrence on the heels of the complainant. No time having elapsed between their arrival at the scene, there was therefore, no occasion for these two witnesses to see the occurrence differently than the way it was seen by the complainant. It is, however, the judicial confession, wherein complainant's statement in this behalf finds support. In the material part of his confession the accused appellant has stated as follows:- "Zulekha was my wife from whom I have got a daughter Rahim Khatoon aged about ten years and two sons Haji and Ibrahim. Haji is my first issue, Rahim Khatoon is second issue and Ibrahim is my last issue. Originally I belonged to Chak No, 37 Bhara Taluka Sadiqabad where other relatives of mine resided. The members of my fraternity told me that my wife Zulekha was in liaison with Gulzar Dasti and was 'Kari' (adultress), but 1 did not believe. Thereupon, they used to taunt me. Being fed up with their taunting, about two months back, I shifted with my wife and children from there and settled in the land of Alibux Shar. Day before yesterday I had gone to see the members of my fraternity at Chak No, 37, where they taunted me. Then I got `ghairat' and taking Manik with me from there, 1 returned to my house. I kept Manik hidden. In the night, Manik brought a hatchet. My wife was sleeping on the cot. I caught her by her legs and Manik gave her hatchet blows and she died.
17. On the cries, Manik ran away with the hatchet. Ali Bux Shar and others caught me and detained me there."
18. ' Here there is no doubt that the confession with regard to the part played by the appellant is in conformity with the statement of the complainant both in the F. I. R. As well as in the Court, but this confession is retracted one. The principle of law is that a retracted confession if found to be voluntary and true can, by itself, be made the sole basis of conviction even in a capital charge. The Supreme Court in Joygun Bibi's case (1 has laid down the principle that the circumstance of retraction from a confession has no bearing on the voluntary and true nature of a confession. This means that if independently it is shown that the confession was voluntarily made and was true then if such a confession is retracted later on then the mere retraction would not react against the voluntary and true nature of the confession. But at the same time the rule of prudence requires that much a confession should be scrutinised closely and examined cautiously. Viewed in this context it would always be necessary to have fuller satisfaction about the voluntary and true nature of the confession. As regards the voluntariness it is to be seen if while recording the judicial confession, the factors cited in section 24 of the Evidence Act, have been taken care of and the procedure given in section 164, Cr. P. C. Is fully observed. In the present case there are no allegations of any departure from such provision. For finding out the truthfulness or otherwise of the confession it has been held time and again that no hard and fast rules can be laid down. In Fazlur Rehman v. State
(2) broadly speaking following criteria was laid down for judging the probative value of a confession.
19. "(1) The character and duration of the custody.
20. (2)Where the confessor was placed in a position the advice of his relatives or his lawyers.
21. (3)The nature and quantum of proof which is available against the confessor before he confessed.
22. (4)Whether the confession was consistent with the other evidence which was available at the time when the confession was made?" {{FOOT NOTE}}
(1) PLD 1960 SC 313 (2) PLD 1960 Pesh. 74 {{FOOT NOTE}} ' These creiteria, as best as they can, be formed the basis of judging the truthfulness of a confession, in the present case accused Din Muhammad was kept by the police for less than 24 hours. There is, however, no evidence that he had the opportunity to seek proper advice either of the lawyer or of his relatives. As regards the third and fourth criteria I have to observe that the confession is not entirely consistent with the other evidence brought on record by the prosecution. I have already discussed the evidence of the two eyewitnesses as regards the alleged part played by the present appellant in the commission of the offence. Another important circumstance is that P. W. Dadlo asked appellant Din Muhammad as to why he committed the murder and the accused gave the following reply "We enquired from accused Din Muhammad about the murder of Mst. Zulekha to which he replied that absconder accused Manik who is brother of deceased Mst. Zulekha had suspected her to be on illicit intimacy with one Gulzar Dasti and therefore he had killed her."
23. ' This is a completely exculpatory statement and is not consistent with the judicial confession.
24. Dadlo is .Not accused of prevarication. His evidence, therefore, has to be read along with the rest of the evidence, and in the light of the total evidence the value of the judicial confession has to be assessed. In the F. I. R. The complainant claims that the accused-appellant made an extra judicial confession before him and gave the following reason for the commission of the offence : "My wife was on illicit intimacy with Gulzar Dasti. The people used to taunt me. Yesterday, my brother-in-law Manik stayed with me as guest. Being disgusted with taunts and reproaches, I consulted with him and then tonight Manik aad I killed her (Zulekha)."
25. ' The circumstance of Manik staying as guest in this statement is inconsistent with the confession made before the Magistrate wherein the appellant states that he kept Manik hidden and during the night Manik brought a hatchet with which Zulekha was killed. This statement allegedly made to the complainant is also inconsistent with the earlier part of the judicial confession wherein it is stated that he had gone to see the members of his fraternity at Chak No, 37 where such members and his brother-in-law taunted him again and, therefore, he got `ghairat' and brought Manik with him. This is positively different than the saying that Manik had on the fatal night, stayed with the appellant as a guest, which suggests as if Manik had come on his own volition and had not been brought.
26. ' Above discussion indicates clear absence of consistency of the judicial confession with other evidence relied apon by the prosecution in material particulars. This inconsistency extends to the very material fact which forms the basis of the allegation whereby the prosecution has tried to prove constructive liability of the appellant, namely, that he was holding the legs of the deceased while she was being administered the fatal blows. This inconsistency along with others cited above, indicates that the confession may not be true. That being the case it would be rightly dangerous to make it the basis of conviction on a charge carrying capital punishment.
27. ' Coupled with this is failure of prosecution to prove motive. Prior to the occurrence appellant Din Muhammad never complained of the easy virtues of his wife to any of the three eye-witnesses.
28. Specific questions were asked in this respect to each of the three eye-witnesses and they all have said that no such allegation was made by him. Even in the judicial confession he. States that it were the members of his fraternity who suspected Mst. Zulekha of liaison with Gulzar Dasti but he did not b'lieve them. P. W. Dadlo states that the appellant told the eye-witnesses that it was Manik who suspected his sister of illicit intimacy with Gulzar Dasti. All this, while highlighting another inconsistency of the judicial confession with the rest of the evidence, clearly points out absence of any motive so far as the present appellant is concerned. Manik may be genuinely suspecting her character, and so may have a motive to kill her. But Din Muhammad did not have any suspicion, and hence no motive. The appellant did not leave his village because he suspected his wife, but because he got fed up with the taunts of his relatives in this regard. He apparently wanted to keep away from that atmosphere in order to have peaceful life, but misfortunes followed him even here.
29. ' The question would arise why was the accused standing while his wife was being murdered. His presence might create suspicion against him, but such suspicion, in the absence of any positive evidence indicating his complicity in the crime, cannot lead to a conclusion of his guilt.
30. ' Another piece of evidence against the accused is the recovery of bloodstained clothes. There were two witnesses of such recovery. Allahyar was given up at the trial on the ground that he had been won over. Ameer, the other witness of the recovery states that he did not care to see if the clothes recovered by the S. H. O. Were blood-stained. Mr. Murtuza Hussain, the learned counsel assisting us in this case, contended that this statement can be conveniently ignored and in this respect the statement of the S. H. O. Should be relied upon. His argument is that in view of the provisions of section 103, Cr. P. C. Prosecution is not bound to produce the witnesses of the recovery and that in view of the law laid down in Muhammad Khan v. Dost Muhammad (1) evidence of the Investigating Officer is enough to prove the recovery. There is no doubt that section 103, Cr. P. C.
31. Does not make it obligatory for the person attending the search to attend the Court unless specifically summoned by such Cotirt. If prosecution had followed this course and had chosen to examine only the Investigating Officer, the authority relied would have supported the argument put forward by Mr. Murtuza Hussain. But in a case where the prosecution has chosen to substantiate its story by the production of a witness then it has to own the evidence brought on record throught such witness. Evidence of such witness has to be taken note of while assessing the evidence of recovery.
32. ' In view of the facts that retracted confession is found to be not true in very material particulars involving the present appellant and that the evidence of the eye-witnesses is also not consistent with the story set up in the F. I. R., grave doubt is created as to the complicity of the appellant in the murder of his wife. I would, therefore, accept the appeal and acquit him of the charge. He should be released forthwith if not required in any other case.
33. ' NAIMUDDIN J.-I agree. {{FOOT NOTE}}
(1) PLD 1975 SC 607 {{FOOT NOTE}}