' CH. RAMM DAD KHAN, C. J.-This appeal, by right, had been filed by Mst. Hamida Begum appellant who was tried alongwith Mohammad Akhtar and Gul Mohammad accused respondents (absconders) for offence under section 302, A. P. C. For committing murder of her husband Mohammad Latif in-between the night of 12/13 November 1973, in the house of her brother, in village Dhal Qazian, Police Station Bagh, where she was staying at the time. She was acquitted by the Sessions Judge, Rawalakot, alongwith other accused. On appeal, filed by the State, against acquittal, a Division Bench of the High Court changed the acquittal of the appellant into conviction and sentenced her to life imprisonment. But surprisingly the Division Bench directed to take proceedings against the absconding respondents under provisions of section 512, Cr. P. C. Though the trial had been conducted in their presence by the Sessions Judge. With due deference to the learned Judges of the High Court it is difficult to appreciate the implication of the order for proceeding against absconding respondents under the provisions of section 512, Cr. P. C. This section, in fact, enacts an exception to the general principle contained in section 33 of the Evidence Act and enables the Court to record the evidence in the absence of absconding accused. But in a case where the trial from beginning to end was carried in the presence of the accused who were acquitted by the trial Court ; if on appeal filed by the State against their acquittal the respondents (accused) are not arrested by the Police in compliance with the warrants of arrest issued by the High Court and remain absent, the question of proceeding under section 512, Cr. P. C. Would not arise because in such a case the evidence of all the prosecution witnesses is already on record and there is no more deposition of any of the witnesses that needs to be recorded in absence of the accused. It may be pointed out that section 512, Cr. P. C. Gives a Court jurisdiction to take deposition in the absence of the accused and that too only in cases where it has been proved to its satisfaction that accused has absconded and that there is no immediate prospect of arrestin him ; but when the deposition of all the prosecution witnesses is already on record, as in the instant case, the provisions of section 512, Cr. P. C. Are not attracted at all. Perhaps the Division Bench by directing proceeding under section 512, Cr. P. C. Intended to give directions for arrest of respondents (accused) to all officers of Police than a particular officer. If this was the intention then the Court could very well bring into service the relevant provisions contained in Chapter VI of Cr. P.
C.
2. The prosecution story is complicated one and the confusion has been further confounded by the Police when they after releasing those mentioned in the F. I. R. Arrested the absconding respondents without any substantial material on the record. According to prosecution Mohammad Latif deceased, who was serving in the Pak Army as L/Nek, came on two months' leave from Jan Kas (a place in Mirpur) where he was last posted. Mst. Hamida Begum-his wife, who is also a daughter of his uncle Kala, was at the time staying in the house of her brother Mohammad Siddique who too was serving in the Army and was away from his .Home at the time. Muzaffar Hussain, a step-brother of the deceased Mohammad Latif, who is the complainant in the instant case, informed the Police Station Bagh on the 19th of November 1973, that his brother Mohammad Latif who had met him last on the evening of 11th November 1973, was not thereafter heard of. It was also mentioned in the F. I. R. That at the time of his last meeting with his brother it was agreed upon between them to go to the water-mill together but next morning when complainant, as agreed, visited the house of Muhammad Siddique he was informed by Mst. Hamida Begum accused that Mohammad Latif deceased had already left the house without any information. The complainant under a belief that the deceased might have gone to Hajira to bring his brother-in-law, Mohammad Siddique, for helping him in construction of his own house, did not inform the Police about deceased's sudden disappearance but on 19th November 1973, when he was advised by Noor Ahmed Khan, to inform the Police about the missing of his brother, he enquired from Mst.
Gullan P. W. 3 who informed him that on the fateful night she being alarmed by a fire shot came out of her room and found that Mohammad Latif had been killed by Balouch, Ghafoor and Hafeez at the instance of Mst. Hamida Begum. Thereupon, the complainant made the F, I, R. Exh. P. A. At Police Station Bagh on the same day; on which Police went on the spot and arrested all the four persons named in the F. I. R. Bu strangely enough did not record the statement of either Mst. Gullan P.W. 3 or Mohammad Shafi P. W. 2 who were mentioned in the F. I. R. As eye-witnesses and admittedly remained present at the house of Nazam Din where Mst. Hamida Begum after arrest on 20-11-73 was kept by Police. After sometim all the three male accused mentioned in the F. I. R. Were left out and instead Mohammad Akhtar and Gul Mohammad alias Gulla, absconders, were arrested. The omissions on the part of Police to record statements of eyewitnesses present there renders the matter doubtful all the more and needs thoughtful deliberation by the P. For reforming the investigation agency and enforcing accountability.
3. Prosecution in support of their story has mainly relied on; (i) th ocular evidence of Mst. Gullan P.
W.
3. And Mohammad Shafi P. W. 2; (ii) the retracted confession of Mst. Hamida Begum that was recorded on 4-12-73 by a Magistrate, after more than two weeks of her arrest by the Poli on 20-11- 73 during which period she practically remained under the custod of the Police; (iii) the alleged recovery of the dead body of Mohammad Lati and other articles at the instance of Mst. Hamida Begum by the Police; and (iv) the evidence of the doctor who performed the post-mortem examination on the dead body of Mohammad Latif.
4. It was submitted by the counsel for the appellant that the learned Sessions Judge rejected the ocular evidence of Mohammad Shafi P. W. 2 and Mst. Gullan P. W. 3 for good grounds but the High Court while placing implicit faith on the statements of these witnesses did not refute the reasons enumerated by the trial Judge for rejecting their evidence.
' We have examined the statements of these witnesses and other record and we find that the Police arrived at the spot on 20-11-73. Both Shafi P. W. 2 and Mst. Gullan P. W. 3 who are named in the F. I. R.
As eyewitnesses of the occurrence remained present in the house where Mst. Hamida Begum accused appellant was kept after her arrest on 20-11-73. This fact is clearly admitted by Hassan Jan P. W. 4 and Nazam Din P. W.
6. It was in the house of Nazam Din that Police stayed during the investigation and kep Mst. Hamida Begum accused and so-called eye-witnesses together after their return from village Thub on 21-11-
73. The trial Judge relying on PLD 1958 Azad J & K 34, PLD 1965 Kar. 76 and PLD 1960 SC (Pak.) 223 refused to place any reliance on the evidence of these witnesses. With utmost rest for the learned Judges of the High Court, we are constrained to say that the High Court while disagreeing with the trial Judge neither discussed no distinguished the above-mentioned authorities ; instead accepted the tainted, evidence of these witnesses without stating any cogent reasons therefor.
' It would be useful to examine here briefly the authorities referred to in this behalf by the trial Court.
In PLD 1958 Azad J & K 34, the witnesses who were present during the inquest proceeding did not disclose to the Police Constable that the death of the child was due to violence committed by Gulab Khan and other accused. The Court thereupon opined that no implicit reliance could be placed on the statement of such witnesses unless it was corroborated by further evidence. In PLD 1965 Kar. 76, the statements of the eye-witnesses were ruled out of consideration because it was recorded four. Days after the incident. In the instant case the police failed to record their statements for more than a week. Again in PLD 1960 SC (Pak.) 223, a witness who was a friend of the deceased did not disclose to anyone for nearly 24 hours that he had seen the murder, his evidence in the circumstances was discarded as being of no value. The evidence of such witnesses as produced in the instant case would not inspire confidence of a prudent person much less a judicial officer because they not only remained silent for long time after the occurrence but also because the police failed to record their evidence even after their arrival at the spot and the arrest of all the four accused mentioned in the F. I. R.
5. The question of credibility of a witness is basically for the trial Court to decide and if some witness makes divergent statements about one and the same incident and accuses different persons for the one and the same crime on different occasions his evidence is not only open to grave suspicion but loses all its credibility and neither of the versions, either regarding the occurrence or participation of particular individual in the crime would provide safe basis for conviction. Mst. Gullan P. W. 3 in the first instance, narrated before Muzffar Hussain that Balouch, Ghafoor and Hafeez alongwith Mst. Hamida Begum were responsible for the murder of Mohammad Latif but subsequently before the Court she substituted Mohammad Akhtar and Gulla accused (absconder) for Balouch, Ghafoor and Hafeez. It is a general principle based on common sense that a witness who changes his statement to suit the occasion is most unreliable person. She cannot be treated as an exception to that rule.
' In the present case Mst. Gullan is stated to be about 13 years old while Mohammad Shafi is a boy of 9/10 years old. They both are of tender age. Children are easily taught story. "Generally they live," it is said, "in a world of make believe and very often they start believing what they have been taught". In view of the fact that the statements of these two witnesses were not immediately recorded but taken down more than a week even after arrival of the Police on the spot which statement is quite different from the one that was made by one of them before the complainant, it would be not only unsafe but extremely dangerous to place any reliance on such witnesses. They are easily changeable. Shafi admits on reverse of page 144 that they were continuously asked to remember their statements they had to make before the Court. If they could not act dum show at the instance of their sister for sometime ; it may be that their subsequent statements might have been induced by Police under whose influence they remained till their statements were recorded in the Court. All these persons gave statements at the beginning of the investigation on which Police arrested three other persons. Then after a weak those arrested in the beginning were set free and two others were roped in on a changed version. Thus, it would appear that the eyewitnesses in this case belong to class of persons who least inspire confidence.
' We would be rather slow to differ from the view of the trial Judge who had seen the witnesses when they were being examined, unless there are strong reasons for the contrary. The Supreme Court would all the more b cautious in a case where three persons who were initially implicated and arrested for commission of the crime but were exculpated by the Police after a week when suddenly guilt was fastened upon other two without any sub stantial cause. In this context the discrepancies in the statements of Mst. Gullan and Mohammad Shafi that have been vividly pointed out by the trial Court would get added importance for assessing the value of the prosecution witnesses particularly the ocular evidence that forms the main basis for conviction of the appellant.
' The trial Court after discussing in detail the discrepancies in the state ments of Mst. Gullan, Mst.
Hussan Jan and Mohammad Shafi P. Ws. Came to / the conclusion that they were not worthy of trust. The trial Court was also of the view that Mst. Gullan and Mst. Hussan Jan in fact played the role of accomplices and their statements regarding the incised injuries on the person of the deceased that they were inflicted after his death stands contradicte by the statement of the doctor who performed the post-mortem examination and who is of the view that all the incised injuries found on the person of the deceased were ante mortem. We have perused the statements of these witnesses and find that the reasons given by the trial Court are fully borne out from the record. We, therefore, think that it would be unsafe to act on the statements of these so-called eye-witnesses.
6. With due respect for the learned Judges, it may be stated that the High Court failed to follow the well-recognised principle of appreciation of evidence necessary for safe administration of justice and following Mohammad Khan v. Sarkar (1) which case has no bearing on the instant case, changed the acquittal into conviction. The law laid down by a High Court, no doubt, is constitutionally binding on all the Courts subordinate to it and must invariably be followed in preference to the rulings of other High Courts but this would not justify application of an authority which has no bearing on the facts of the case under trial. If such authorities of the High Court without considering their ratio decidendi are allowed to be applied as has been done in the instant case that might lead to grave injustice. While dealing with the probative value of retracted judicial confession, the Azad Jammu & Kashmir High Court in aforementioned judgment said: " It is a universally accepted rule that a confession, in order to be acted upon, must not only have been voluntarily made, but must also be true. If a confession is not voluntarily made, it is deprived of that sanctity which persuades a Court of justice to act upon it .. ". The authorities referred to by the learned Sessions Judge do not lay down any law contrary to the general rules stated above. Even otherwise the facts of that case as would appear from what follows supports the view taken by the Sessions Judge.
' In our view the facts of Mohammad Khan's case have no bearing on the case before us and is clearly distinguishable. The High Court in that case came to the conclusion that the confession though retracted was voluntary and also there was sufficient circumstantial evidence in corroboration of the retracted confession which consisted of the facts; firstly, that the deceased woman was not seen after she had gone to the forest but where the accused too had followed her; secondly, that some quarrel preceded the crime; thirdly, that the dead body was recovered after the recovery of Dupatta and shoes of the deceased from the pond which was not traced on the previous day and in the confession it was admitted that the dead body was actually thrown into the pond after the first day search; and fourthly, that the shirt of the accused in that case was stained with human blood and certain articles belonging to the deceased were recovered from the hut, the key of which was produced by the accused. Thus it would appear that the retracted confession in that case was taken into consideration and relied upon not only for the reason that it was made before a Magistrate but also because it was found voluntary which was further supported in material particular by other circumstantial evidence. The law on the question of retracted confession has come
(1) 1973 P Cr. L J 276 under examination in a number of cases of various superior Courts. The consensus is that an accused person, of course, legally can be convicted on the basis of his confession itself though he has subsequently retracted from it but as a matter of prudence and caution, which has now become virtually K a rule of law, a retracted confession alone would not be made basis of conviction unless the same is corroborated. Moreover, continued prolonged custody of a woman under Police preceding the making of judicial confession is a circumstance that would render it necessary for prosecution to establish positively that such retracted confession was voluntary as well. It is significant that on the basis of the F. I. R. And Mst. Hamida Begum's statement, Police at the start of the investigation arrested three other persons for the murder of Mohammad Latif. In these circumstances, a retracted confession that was made after two weeks of police custody contrary to the L one made at the outset could neither inspire confidence of a prudent person nor can be taken as voluntary so as to form safe basis for the conviction of such a person.
' It becomes all the more unsafe to place any reliance either on the retracted, confession of Mst.
Hamida Begum appellant or on the ocular evidence produced by the prosecution in this case when we do not find any support from any other circumstantial evidence in the case. There is no evidence on the record in support of the prosecution case regarding the recovery of dead body of the deceased at the instance of the lady accused; not a single M marginal witness of recovery memo. Has been produced before the trial Court. The Police already knew, before the recoveries, the place where the deceased had been buried. Under these circumstances, it is not possible for us to agree with the learned Judges of the High Court that the retracted confession stood corroborated.
' No article, except axe recovered in this case at the instance of Mst. Hamida Begum, was sent to Chemical Examiner, though it is alleged that all these articles, namely, quilt, mattress and axe were blood-stained. The axe, it is shown, was sent to Serologist but the result regarding the source of blood, if any, has not been placed before the Court from which fact the Court can justifiably draw an inference Adverse to prosecution. There is thus no N evidence that the axe or any other article secured by Police from Mst. Hamida Begum accused was stained with human blood. The recovery of an axe, quilt, mattress or earth at the instance of the lady accused would, therefore, not be a corroborative circumstance from which an inference of guilt against her could be drawn. As regards to the recovery of the dead body at the instance of Mst. Hamida Begum, the trial Court rightly came to the conclusion that it was already known to the Police that the dead body was buried at that place, the subsequent drama enacted by Police to show that the recovery of 0 the dead body of Mohammad Latif deceased was made at the instance of Mst. Hamida Begum, would amount to cooking and render its actor liable to prosecution. It is not clear what consideration influenced the prosecution not to produce any one of the marginal witnesses of the recovery memo. Of the dead body. This recovery of the dead body thus cannot be taken as a circumstance against her. Even otherwise, in the instant case, recovery was made not in presence of available respectable persons of the locality as required under the provisions of section 103, Cr. P. C. But in presence of P persons who were taken by the Police alongwith it from another locality which should make the Court all the more cautious because such a course might have been inspired by a desire to have such witnesses that might be induced to support the story that might be set forth.
' For the foregoing reasons we accept the appeal, set aside the conviction and sentence passed against Mst. Hamida Begum and acquit her. She is discharged of her bail bond.