MUHAMMAD AKRAM, J.-This is an appeal by special leave from the ,judgment and order dated 4th of November 1975 passed by a Division Bench of the Peshawar High Court upholding the convictions of Naqibullah and Wasal Khan appellants and confirming the death sentences awarded against them each under section 302/34, P. P. C., in the circumstances stated below.
The F.
1. R. About this incident was registered at the Police Station Lahore. District Mardan, at the instance of Mst. Awal Jan. She was residing with her son Abdur Rahman deceased in village Hund situated near the bank of river Sind. According to her after dinner on the night of 19-7-1974, Wasal Khan accused called at their house and took out Abdur Rahman deceased with him to the river bank. After some time Wabeedullah (father of Naqibullah accused) resident of the village came to her and enquired about Abdur Rahman. She told him that he had gone out with Wasal accused. On this he replied that there was some noise at the river bunt. He then left fur the river and she also followed him. At the river bank she saw the dead body of Abdur Rahman lying there with a number of persons present there. In the presence of those persons she expressed hen suspicion that Wasal was responsible for the murder of her son. She then left for the Police Station situated at a distance of about six miles and dodged the report about the incident at 00-30 hours on 20-7-1974. She admitted in the report that they had no previous enmity with Wasal and she vas unable to say as to why her son was murdered.
2. A. S. I. Fazal Rabbi Khan (P. W. 9) was deputed for the investi--gation of the case. He proceeded to the spot, recovered the blood-stained earth and a torch (Exh. P. 2) from the spot. After the completion of the formalities at the spot he despatched the dead body to the mortuary for the post-mortem examination.
3. On 21-7-1971 the Investigating Officer arrested Wssal accused. As a result of the interrogation of the accused by P. W. 2 Mahboob A.I Khan, S. D. P. O., Swabi, in the presence of the Investigation Officer, they also decided to arrest Naqibullah and according to him he was arrested on 22-7-1974.
4. Dr. Akhtar A.I Khan (P. W, 1) Medical Officer, Incharge Rural Health Centre, Kunda performed the post-mortem examination on the dead body of Abdur Rahman deceased. It had four stab wounds, two on the chest, one on the abdomen and one above the left arm pit. On internal examination the Doctor found that the stomach, sma ll and large intestines of the deceased contained some solid contents. In the opinion of the Doctor the death was caused due to shock and hemorrhage as a result of the injuries to the vital organs like heart and lung caused by a sharp-edged weapon. On 22nd of July 1974 at 3-00 p.m. The same Doctor also examined Naqibullah accused who had three simple injuries on his left hand. In the opinion of the Doctor one of these was caused by a sharp- edged weapon, and the remaining two were more contusions caused by blunt weapon. Their probable duration was stated to be 72 hours. But in his cross-examination at the trial the Doctor clarified teat the probable duration of the injuries on Naqibullah accused could be approximately within 36 to 72 hours from the time of his examination.
5. On the 25th July 1974 Wasal accused, while .In custody of the Police, was produced before Syed Akram Shah (P. W. 6) who was at the relevant time Magistrate, First Class/E. A. C. (1), Swabi. The accused made a statement (Exh. P. Z.) recorded by the Magistrate and confessed the guilt. He admitted that in connivance with Naqibullah accused they had murdered Abdur Rahman deceased at the river bank with a chhuri which was thrown away in the river. Similarly, on the 27th of July 1974, Naqibullah accused was also produced before the same Magistrate and he too made a statement (Exh P. Y) recorded by the Magistrate confessing the guilt.
6. At the trial no eye-witness of this occurrence was produced in evidence. P. W. 6 Syed Akram Shah Magistrate was produced to support the two confessional statements of the accused recorded by him. Mil. Awal Jan (P. W. 7) deposed that Wasal and Naqibullah accused were her co--villagers. A sister of Naqibullah accused was engaged to her son Abdur Rabman deceased a year prior to the occurrence. This happened in the absence of Naqibullah accused who was at Karachi at the time in connection with his business. He was not at all happy over this engagement of the deceased with his sister and nursed the grievance. The witness further deposed that en the night of the occurrence, she and her deceased son were present in their house when at about Khuftan time Wasal accused came and called out for his son She responded to the call and upon query Wasal accused told her that they intended to go to the river. On this her son took a torch (Exh. P. 2) with him and accompanied Wasal accused. After an hour or so. Waheedullah, father of Naqibullah accused came to her and enquired about Abdur Rahman deceased. She replied that Wasal accused had taken him out to the river side. On this he informed her that a quarrel had taken place on the river side. So that she along with Waheedullah then rushed towards the river. On reaching there they saw Abdur Rahman deceased lying murdered. Many people of their village were present around the dead body. She stayed there for about an hour with the dead body of hereon. She was then taken to the Police Station by Asim Ullah and others to lodge the report (Exh. P. A.). Asim Ukiah is the uncle of Naqibullah accused. In the village, later on, she, was told that Naqibullah and Wasal both had committed the murder of her son. In her cross---examination she stated that the spot where her son was found murdered was at a distance of 300/400 paces from her house.
7. At the trial the Public Prosecutor gave up P. Ws. Banaras, Shamros0. Mir Sultan, Amir Said and Zahid as having been won over.
8. Wasal Khan accused in his statement recorded by the Committing Magistrate denied the charge and pleaded that he was innocent and had been falsely implicated. He denied having confessed his guilt before the Magistrate. Similarly in his statement before the Sessions Judge be denied the charge and pleaded that he was innocent and had been falsely implicated. He denied that Naqibullah co-accused was his associate. He admitted that he was arrested on 21st of July 1974 and was given a beating and was asked to make a confessional statement before the Magistrate. It was on account of torture and under duress at the hands of the Police that he was forcibly compelled to make the statement thumb marked by him. According to him the P. Ws. Have deposed against him because of suspicion, and rumour. Naqibullah accused also made similar statements before the Committing Magistrate as well as in the Court of the Sessions Judge. At the trial he admitted that his sister was engaged to Abdur Rahman deceased about a year prior to the occurrence and stated that their family relations were cordial with the deceased and that he had no grudge against him on account of this engagement. He even participated in the funeral and condolence of the deceased. He stated that he did not make any voluntary statement and that the confession (Exh. P. Y) was obtained by the police under duress and torture. When questioned about the injuries on his person he stated that he was a shop-keeper and was opening a box of tea leaves with a hammers and in the process sustained the injuries on his left hand. The accused did not adduce any evidence in defence.
9. On the 20th of January 1975, the Sessions Judge, Mardan, convicted the two accused and sentenced them each to death under section 302/34, P. P. C. For the murder cf Abdur Rabman deceased. He observed that Mst. Awal Jan (P. W.) did not attribute any motive for the crime in the report lodged by her. However, in her statement at the trial she stated that her son was done to death by Nagibullah accused in connivance with Wasal accused, because the former was annoyed at the betrothal of his sister to the derxased. In this connection he relied on the judicial confession of Wagal accused coupled with the circumstance that on the fateful night he was last seen alive with the deceased. When as stated by Me. Awal Jan he took him to the river bank where he was found murdered.
Similarly the Court relied on the judicial confession made by Naqibullah accused corrobora--ted by the fact of the injuries found on his hand and rejected his explanation to the effect that he had sustained them while opening a box of tea leaves. In the opinion of the Court these injuries were suggestive of the "factum of grappling between the deceased and the accused." The learned Sessions Judge was satisfied that the two Judicial confessions were voluntary and had not been procured under torture or duress.
10. On appeal the High Court concurred with the trial Court in .Holding that tic two confessional statements were voluntarily male by the .Accused and were not procured from them under coercion and duress. In that connection the Court relied on the evidence of Syed Muhammad Akram Shah (P. W. 6) Magistrate who had satisfied himself about the voluntary nature of the judicial confessions and complied with all the necessary requirements of the law before recording them. The confession made by Wasal accused was corroborated. By the circumstance that the deceased was last seen alive in the company of the accused as deposed to by Mst. Awal Jan. In this connection however, the High Court observed that as the trial the attention of Wasal accused was not called to this circumstance appearing -against him In the evidence and he was not asked his, explanation about it fn the course of his statement as an accused person. But then in the opinion of the High Court this was a mere irregularity which did not result in any prejudice to the accused in his defence and did not therefore, materially .Affect the result. In the opinion of the High Court the judicial confession by Naqibullah was sufficiently corroborated by the fact of the injuries found on him and that these were "the result of feeble struggle which the deceased .Could put up or may be that these were caused while Naqibullah was using his weapon against the deceased."
According to the post-mortem report of the deceased, the stomach contained semi-digested contents and this .Circumstance also corroborated the prosecution version that deceased was taken away at about khuftan time. On these findings, therefore, the High Court dismissed the appeal and confirmed the death sentences against -both the accused.
11. In this case at the petition stage this Court observed that this was an unwitnessed clime and the conviction of the two accused solely rested -upon their confessions recorded by the Magistrate four days after the arrest of Wasal and five days after the arrest of Naqibullah accused. Both these confessions were subsequently retracted. The Magistrate, at the tithe of -recording the confessions did not ask the two accused as to whether they had been tortured key the police. In the first Information report only Wasal Khan accused was mentioned as the suspect. Moreover the motive for the crime was concerning Naqibullah alone and that too appeared to be rather, ,feeble- Also out of the four persons named in the two confessions, who were told by the accused to give out that the deceased had been drowned an the river three were given up by the prosecution and the fourth one was never produced in the evidence. This Court, therefore, granted leave to appeal to the accused for further examination of these features of the case.
12. In this case before us the convictions of the two accused are largely based on their respective confessional statements which were afterwards retracted by them in the course of the commitment proceedings as well as at the trial in the Sessions Court. Syed Akram Shah (P. W. 6) testified about the two confessions recorded by him at the instance of Naqibullah and Wasal accused. He deposed that Wasal accused was brought to his Court room on the 25th of July 1974 at about 11-30 a.m. He turned out all the police personnel and the P. S. I. From his Court room, and disclosed his own identity to the accused. He warned him that the was not bound -to make the confession and that any such statement, if made, would be used against him In evidence. He removed the handcuffs of Wasal accused ,and gave him a seat at the dais. He allowed sufficient time to him to ,ponder and think over the matter. Once again he asked him if he was ;prepared to make the confessional statement voluntarily to which he replied in the affirmative. The Magistrate also satisfied himself about it. He told the accused that whether he made the confessional statement or not he would be remanded to .Jail and shall not be made over to the police cuqtody.
He then asked the questions prescribed in the form "Memorandum of Enquiry" for the record of a confession by an accused person and record of answers. Wasal accused then made his confessional statement in Pushto and the Magistrate recorded it by translating the same in Urdu. It was again translated back into Pushto and read over to the accused who admitted the sauce and thumb marked it in token of its correctness. To the confessional statement made by Wasal accused is also appended the requisite certificate issued by the Magistrate in accordance with law. In the cross---examination of the witness it was elicited from him that Wasal accused had told him that he was under attest since the 21st of July 1974. But he did not put any question to the accused if he had been tortured by the police since his arrest. On 27-7-1974 at 12-30 p.m.
Naqibullah accused was produced before him and after complying with the necessary requirements and having taken the usual precaution he recorded his confession (Exh. P. Y.). In h18 case also the Magistrate admitted that according to Naqihullah accused he was under arrest since 21-7-1977 (seven days) when his confession was recorded on the 27th of July 1974. But he did not specifically ask the accused if he had been tortured. The Magistrate deposed that he did not notice any injury on the person of Wasal and Naqibullah accused nor did he examine their bodies for the purpose. According to him evidently there were no injuries on them nor did they complain to him about any torture.
13. In his confessional statement (Exh. P. Z.) Wasal Khan disclosed that he had friendly relations with Abdur Rahman deceased for about three months and they often used to go out together (in the evening) for bath in the river. About 21 days prior to the occurrence Naqibullah accused told him that he (Naqibullah) would give the hand of his sister in marriage to him in case he were to bring Abdur Rahman deceased to the river bank. Accordingly, on the 20th of July 1974 at khuftan time at about 8/9 p.m. He called out Abdur Rahman deceased from his house and took him so the river.
Naqiballah accused was already present there and he gave three blows to Abdur Rahman with a chhuri. The chhurf then fell from his hand. On this he (Wasal accused) picked up the chhuri and gave a blow to Abdur Rabman at his back and threw the chhuri in the river. At the time Banaras, Zabid, Shamrose anti Nowahad were sitting on the river bang at a distance of about 25 paces. On hearing the cries raised by Abdur Rahman deceased, they came to the spot. But Naqibullah told them that in case any body were to enquire about Abdur Rahman they should inform hiss that he hart been drowned in the river. The two then left for the village leaving the dead body behind at the spot. In the end Wasal added that a sister of Naqibullah had been betrothed to Abdur Rahman deceased, but that Naqlbul1ah did not like it and had, therefore, murdered him.
14. The confessional statement (Exh. P. Y.) of Naqibullah accused !s almost similar to that made by Wasal Khan accused. He stated that about a year back his parents bad of their own accord betrothed his sister Mst. Sikander Jan with Abdur Rahman deceased who was a Gujar by case. He was annoyed over his betrothal. About four or five days prior to the occurrence he asked Wasal accused to bring Abdur Rahman deceased to the bank of the river on the pretext of having a bath there, and that he shall murder him and promised to give the hand of his sister to him. Accordingly, Wasal brought Abdur Rahman deceased with him from his house. At the river bank Naqibullah attacked Abdur Rahman deceased with a chhuri and gave three blows to him. But the chhuri then fell from his hand. On this Wasal accused picked up the chhuri and gave a blow to the deceased at the back and throw the chhsal in the river. At the time Banaras. Zahid, Shamrose and Nowahad were present at the river bank at a distance of 20/25 paces from the place of occurrence. He told them that if anybody were to enquire about Abdur Rahman deceased they should tell him that he bad been drowned in the river. Naqibullah accused also admitted to have changed his clothes as those worse by him got stained with blood.
15. Wasal Khan accused was arrested on the 21st of July 1974 and he remained in the police custody until the 25th of July 1974 when his confession was recorded by the Magistrate. Before the Magistrate Naqibullah accused stated that he was under arrest since the 21st of July 1974 for seven days when he was produced before the Magistrate on 27-7-1974 and his confession was recorded.
P. W. 2 Mahboob A.I Khan deposed that he was the S. D. P. O., Swabi at the time and he arrested Naqibullah accused on 22.7-1974 and partly investigated the case. But according to the judicial confession of Naqibullah recorded on 27-7-1974 he was arrested since 21-7-1974 and had remained in Police custody for seven days. On this record the prosecution has failed to furnish any explanation for this discrepancy. It seams probable that he was in fact detained for interrogation by the Police a day before be was formally arrested on 22-7-1974. This circumstance, therefore, raises a suspicion that the Police did not quite act fairly In the investigation of this case against him. The prosecution has also failed to give any explanation for the considerable delay in the production of the two accused before the Magistrate for the purposes of recording their confessions. It is rather unfortunate that even the learned Magistrate did not satisfy himself about the causes of this delay before proceeding to record the two confessional statements in question.
16. P. W. 6 Syed Akram Shah, the learned Magistrate deposed to have taken all necessary precautions to ensure and was satisfied that the two confessional statements recorded by him were voluntarily made by the accused. He also appended his memorandum to that effect with the two confessions. 'r He admitted in his cross-examination that before recording the two confessions he did not put any question to the accused as to whether they had been tortured by the Police during their arrests. He did not examine their person in order to satisfy himself if they had marks of violence on their bodies. He however, added that apparently there were no injuries on them.. Nor did they complain to him about any such torture. As already stated he did not even enquire into causes for the delay in the production of the two accused before him for recording their confessions in question. Moreover he did not specifically enquire from the accused the reasons for mating the confessions. It may be due to an inadvertent lapse on his part. But these circumstances are by no means sufficient to hold that the learned Magistrate had failed to fully satisfy himself before recording the two confessions that they were free and voluntary. He appears to have taken the precautions in order to assure himself that the confessions were voluntarily made by the accused without any inducement, threat or promise and there is no reason not to believe his evidence, on the point.
17. In this connection the two accused in their respective statements recorded by the Committing Magistrate denied having confessed their guilt before any Magistrate. On the other band Wasal accused in his statement recorded by the Sessions Judge stated that he was arrested by the police on 21-7-1974 and was given beating and was asked to make the confessional statement before the Magistrate. It was on account of the torture and duress of the police that he was forcibly made to give a statement on which his thumb impression was obtained. Similarly, Naqibullah accused stated that he did not voluntarily make any such confessional statement (Exh. P. Y.) and that it was obtained from him on account of police torture and duress. Apart from this inconistent stand taken by them in the two Courts, they did not adduce any evidence in defence. Moveover, the prosecution examined, the two Investigating Officers namely Fazal Rabbi Khan A. S. I. (P. W. 9) and Mahboob A.I Khan, S. D. P. O. (P. W. 2) but not even a suggestion was put to them in their cross- examination to show that the two confessions B were procured from tale accused by torture and were involuntary. Even from the cross-examination of Syed Akram Shah Magistrate (P. W. 6) it does not appear that the two confessions were caused by any inducement, threat or promise. They cannot, therefore, be struck down as irrelevant under section 24 of the Evidence Act, 1872.
18. This section expressly lays down that a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any Inducement, threat or promise proceeding from a person in authority and afford In the opinion of the Court reasonable ground for supposing that by making i!, he would give any advantage or avoid any evil of temporal nature in reference to the proceedings against him. In turn the procedure for recording a confession is laid down in section 164 of the Criminal Procedure Code. In this connection, in particular subsection (3) of section 164 of the Code provides that a Magistrate shall, before recording any such confession explain to the person mailing it that be is not bound to make a confession and that if he does so it may be used as evidence against him anal no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily.
19. Before us In finding faults with the two confessions (Exhs. P. Y. And P. Z.) the learned counsel for the appellants strongly relied on the reported case of a Division Bench of the West Pakistan High Court in Mst. Said Begum v. The State (PLD 1958 Lah. 559) and argued that the learned Magistrate in recording them had failed to take all the necessary precautions required of him in order to fully satisfy himself that they were voluntarily made by the accused and were not procured from them by any inducement, threat or promise. In that case a mention was made of the instructions contained in Chapter 13 of volume III of the West Pakistan High Court Rules and Orders meant for the guidance of the Magistrates in recording the confessions. These go to provide that in addition to complying with the requirements of section 164(3) of the Code of Criminal Procedure, the Magistrate should put such further questions as may be necessary in order to satisfy himself that the accused person was acting voluntarily. For this purpose he should, Inter alia, bear in mind the period during which the accused person was kept in police custody and make stare that his statement wag not the result of undue influence or ill-treatment brought to bear on him. Besides putting the set questions the Magistrate is required to make a real endeavour to find out the voluntary nature of the confession. The Court emphasised that it is a solemn duty cast on the Magistrate which should be performed with great care and caution and not mechanically or casually. In that care the Court elaborated the procedure in general to be followed by the Magistrates in recording a confession and the Magistrates were advised to also put the following questions to the accused in the discharge of their duties :-
(1) For how long he has been with the police ?
(2) Has any pressure been brought to bear upon him to make a confession ?
(3) Has he been threatened to make a confession ?
(4) Has any inducement been given to him ?
(5) Has be been told that he will be not made an approver ? And
(6) Why was he making this confession.
20. In lumma and others v. The Crown (PLD 1954 Lah. 783) it was observed that the mere fact that the questions prescribed in the instructions issued by the superior Courts were not asked did not necessarily go to show that the confession was the result of inducement, threat or promise. It depended on the Magistrate how best to fully satisfy himself that the confession recorded by him was free and voluntary and in each case it shall be for the trial Court to make up its own mind on the examination of the Magistrate and all other relevant facts and circumstances to form its own independent opinion about it before relying on the confession attributed to the accused.
21. In Syed Sharifuddla Prizada v. Sohbat Khan and others (PLD 1972 SC. 363), the trial Judge and the High Court had discarded the judicial confessions of the accused who had been kept in police custody for some time before they were actually produced before the Magistrate for recording them and they were not asked the questions as to how long they had been in police custody and why they had chosen to get their confessions recorded. But this Court held that these reasons that had prevailed with the two Courts in discarding the confessions were unsatisfactory. The only fact that the accused was for some time in the Police custody did not lead to the necessary conclusion that he was tutored and that his remaining in the police custody did not effect the confession made by him. In that case also before the High Court reliance was placed on the instructions contained in Chapter VI, Part (C) of Federal Capital of Sind Court Circular to the effect that the person from whom the confession is taken should be asked as to how long he bad been in police custody. But in the opinion of this Court any direction to that effect in the Circular was merely directory in nature and the failure to comply with it did not necessarily vitiate the confession.
22. In this connection, it is needless to mention here that the provisions in Chapter 13, Volume III of the then West Pakistan High Court Rules and Order and those in Chapter VI, Part (C) of Federal Capital of Sind Circular to which references were made in the cases discussed above, are in the nature of instructions issued to the Magistrates for their guidance only in recording the confessions.
These are merely directory in their nature. The sole object and the dominant purpose behind all these instructions issued to them is that they must always make a real and earnest endeavour to ensure that the confessions of the accused recorded by them are free and voluntary and are not caused by any inducement, threat or promise. Each case has got to be decided on its own facts in the light of the law discussed above In this connection, however, in recording a confession, the Magistrate must always apply himself fully diligently and in all seriousness, as a matter of solemn duty, to this task entrusted to him under the law. He cannot be casual and remiss or act mechanically in the enquiries made from the ace before recording his confession. He should endeavour to place him at care, dispel all or any of .The lurking fear. Inducement, hope or promise from his mind to enable him if he so chooses, to make of his own volition, anabsolutely free and voluntary statement according to the best dictates of his own inner conscience. The Magistrate before proceeding to record the confession must fully assure himself and satisfy his own judicial conscience about it.
23. In Queen v. Thompson (1893 2 QBD 12) Cave, J. With his usual clarity has laid down some of; he tests for the admissibility of the confessions on criminal cases. According to him a confession to be admissible must be free and voluntary. If it proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it flows from hope or fear, excited by persons in authority, it is inadmissible. The material question consequently is whether the confession has been obtained by the influence of hope or feat. The Judge will require the prosecution to show "afrccatively" to his satisfaction, that the statement was not made under the influence of an improper induce--ment, and who in the event of any doubt subsisting on this head, will reject the confession. He observed that "the rule laid down in Russel on Crime is that confession, in order to be admitable must be free and voluntary, that is, must not re extracted by any sort of threats or violence, nor obtained by any direct or implied promisee, however, slight, nor by the exertion of any improper influence" and added that if these principles and reasons for them are, as it seems impossible to doubt, well founded, they afford to Magistrates a simple test by which the admissibility of a confession may be decided. In conclusion Cave, J. Strongly suspected the retracted confessions, particularly when the proof of the prisoner's guilt is otherwise not clear and satisfactory. In that connection he remarked :- "I would add that for my part I always suspect these confessions, which are supposed to be the off spring of penitence and remorse and which nevertheless are repudiated by the prisoner at the trial.
It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner's guilt is otherwise clear and satisfactory 1 but, when it is not clear and satisfactory, the prisoner is not unfrequently alleged to have been seized with the desire born -of penitence and remorse to supplement it with a confession ; a desire which vanishes as soon as he appears in a Court of justice."
24. I have already held above that the two confessions (Exhs. P. Y. Acrd P. Z.) in question are relevant and admissible in the evidence against the appellants. But that does not end the controversy. They both retracted from their confessions at the earliest opportunity in their respective statements recorded by the Committing Magistrate as well as in the Sessions Court. In State v. Minhun alias Gul Hassan (PLD 1964 SC 813) this Court observed that 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 is --"true and voluntary" and was not obtained by tortures or coercion of inducement. In the opinion of the Court the question, however, as to whether in the facts and circumstances of a given case the Court should not act upon such a confession alone is an entirely a different question which related to the weight and evidentiary value of the confession and not to its admissibility in law. In that connection this Court further remarked that :- "As observed even by Munir. C. J. In his commentary on the Late of Evidence at page 168 (Volume 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 paints and surrounding circumstances and satisfy itself fully that the confession cannot but be true:"
25. In another reported case in Nadir Hussain v. The Crown (1969 SCMR 442) this Court observed that tae rule of caution universally applied to the cases of retracted confession is that it should not be acted upon "unless corroborated in material particulars by reliable evidence." In this connection is yet another case in Dhani Bakhsh v. The State (PLD 1975 SC 187) this Court, in relying on the dictum in Minhun alias Gul Hassan observed that it is welt-settled that a retracted judicial confession is seldom made the basis of conviction without being materially corroborated.
26. Similarly in Sarwan Singh Rattan Singh v. The State of Punjab (PLD 1957 SC (Ind.) 555) the Supreme Court of India has held that even if a confession is voluntary it roust 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. It was further observed that it was always open to the Court to convict an accused on his confession itself although he has retracted from it at a later stage. Nonetheless usually the Courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of facts and circumstances of each case.
27. Applying these principles to the instant case, in order to sustain the convictions of the two accused, prosecution roust establish that the two confessions in question are true and are also sufficiently corroborated in material particulars from the other evidence on the record. Now comparing these confessions with the rest of the evidence on the record, the prosecution has failed to adduce any direct or sufficient circumstantial evidence to connect the appellants with the crime and to inculpate them for the murder of Abdul Rahman deceased. According the two confessional statements Banaras, Mid, Shamrose and Nowshad were sitting at a distance of20/25 paces from the place or at the time of the occurrence. In the confession of Wasal Khan it is further stated that on the alarm raised by Abdul Rahman deceased the four witnesses actually came to them at the spot. On this Naqibullah accused told them that in case anybody were to enquire from them about, Abdul Rahman deceased, they should inform him that he had died by drowning in the river. In the confessional statement by Naqibullah it is also stated that at the time clothes worn by him got blood stains on them arid he had, therefore, to change them.
28. This would show that at least according to 11 these confessional statements relied upon by the prosecution, it was not an altogether un--witnessed occurrence. Indeed at first prosecution had itself cited Banaras, Zahid and Shamorose at its witnesses. But then afterwards on 16-1-1975 the learned Public Prosecutor at the trial Court gave up these witnesses as having been won over. The fourth witness of the occurrence namely Nowshad was neither cited nor produced by the prosecution in the evidence. The prosecution also failed to effect recovery of the blood-stained clothes worn by Naqibullah accused. Moreover, in support of its version, the prosecution could have produced the evidence of witnesses of the locality who must have seen the two accused returning from the place of occurrence after the event with tire clothes worn by either or both of them smeared with stains of blood on them. But strangely enough the record is singularly silent about all this and there is no explanation forthcoming for these pit-falls in the prosecution ease. Indeed there appears to be an inherent fallacy ire the portions of the two confessional statements to the effect that if anybody were to enquire from Banaras and others about the deceased the) should inform him that he had died by drowning. The death of the deceased by drowning would be simply out of question after his dead body was actually found lying at the spot with the injuries caused by sharp edged weapon on it. This renders the part of the statement in the two confessions attributed to the accused altogether absurd and even raises a suspicion about) its veracity.
29. It appears to me that the prosecution was simply satisfied with they two confessions of the two accused secured by it and did not pursue the investigation into this case as it was duty bound to do so. This reminds me about the observations by Straight, Offg. C. J. In the Full Bench case of Queen Emperor v. Babu Lai and others (I L R 6 All. 509) to the effect that almost in every, case of serious gravity or difficulty, the primary object towards which the police directs their attention and enquiry is, if possible, to secure a confession. In this connection he further remarked that :- " . . . . . . Instead of working up to the confession, they work down from it, with the result that we frequently find ourselves compelled to reverse convictions simply because, beyond the confession, there is no tangible evidence of guilt." '
30. I am, therefore, constrained to observe that the prosecution has failed to adduce sufficient evidence on the record, both direct tend circumstantial, to form an opinion that the two confessions in question were not only voluntary (as held by me) but true also.
31. I find that even otherwise there is no sufficient and reliable corroboration available on this record against the two accused in support of the two respective confessional statements. In this connection the two Courts have relied on the testimony of Mst. Awal Ian P. W. To the effect that the deceased was last seen alive with Wasal accused when he took him from her house for the river bank and this circumstance was regarded as lending sufficient corroboration in support of the confession of the accused to base his conviction in it.
But in this connection it appears to me that the prosecution has failed to squarely bring home the guilt at the foot steps of Wasal accused and his confession was not - sufficiently corroborated in any material particular. Of course there is nothing to doubt the testimony of Mst. Awal Jan (P. W.) to the effect that the deceased was last seen alive in the company of the accused when he took him from her house for the river at about khuftan time. It was after an hour or so that Waheedullah (father of Naqibullah accused) came to her house, enquired about Abdul Rahman deceased, and informed her that some quarrel had taken place on the river side. It was on this that they both rushed towards the river to find that Abdul Rahman deceased was lying murdered near the river bank at a distance of 300/400 paces from her house according to her statement, and at a distance of about two furlongs according to the site plan. This plan shows that her house is situated in the inhabited portion of the village and its abadi has spread towards the river aide. The nearest house shown in the plan is at a distance of about 90 paces from the place where the deceased was found lying murdered. As already discussed above, even according to the confession there were at least four persons sitting at a distance of 20/25 paces from the place of occurrence who bad or could have seen the incident. But for the two retracted confessions, there is no independent and reliable evidence brought on the record to establish that Wasal accused was actually seen by anybody at the scene of occurrence or had participated in the murder.
32. In Fazal Elahi alias Sajawal v. The Crown (PLD 1953 FC 214) to the final analysis, the Federal Court held that the accused's presence in the deceased's company when he was "last seen alive", as alleged, cannot by itself lead to an inference, beyond reasonable doubt that be was guilty. In that case the Court significantly observed that while the fact of an accused person being the "only person in the company of the deceased within a very short time of his death" nay be almost conclusive, in the absence of explanation from the accused, for holding him responsible for the death, should it have been the result of violence, prolongation of interval generally tendency to weaken the inference very greatly. In certain circumstances as much as an hour's extension may suffice to avoid even the duty of furnishing an explanation.
33. In another case falling under the same category, in State v. Manzoor Ahmad (PLD 1966 SC 66) the deceased was last seen alive in the company of the accused when they both entered his room.
In that context the Supreme Court observed that in a case resting wholly on circumstantial evidence the Court must remember that the "Processes of inference and deduction are essentially involved-frequently of a delicate and perplexing character-liable to numerous causes of fallacy".
Mere suspicion will not be sufficient to justify conviction. Before the guilt of the accused can be inferred merely from inculpatory circumstances those circumstances must be found to be incompatible with the innocence of the accused and "incapable of explanation upon any other reasonable hypothesis than that of his guilt." The circumstances sought to be relied upon must have been established beyond all doubt. But this only means a reasonable doubt, i.e. a doubt such as would assail a reasonable mind and not any and every kind of doubt and much less a doubt conjured up by pre-conceived notions. But once the circumstances have been found to be so established they may well furnish a better basis for decision than any other kind of evidence." The matter was also examined at some length in a recent unreported judgment of this Court in Rehmat alias Rehman v. The State (Criminal Appeal No. 5.4 of 1976, decided on 5-4-1977). On the whole the evidence of the deceased having been last seen alive in the company of the accused was regarded as a weak type of circumstantial evidence to base a conviction on it.
34. In my opinion, in the circumstances of this case, the corroboration supplied by this weak piece of circumstantial evidence, was not sufficient to base the conviction of Wasal accused on his confession. There is no g motive at all alleged in the F. I. R. Against the accused for the murder. Even in the evidence the motive attributed to him is much too far-fetched to be real.
35. But quite apart from this, there is yet another fatal objection against this part of the prosecution case. Neither in his statement recorded by the Committing Magistrate nor by the trial Court the explanation of Wasal accused was called about this circumstance appearing against him in 1 the evidence that he was last seen alive when they had left for the river on the fateful night. So that he was not 'afforded any opportunity to tender his explanation in this behalf, if any. In this connection section 342 (1) of the Cr. P. C. Expressly lays down that for the purpose of enabling the accused to explain any circumstance appearing in evidence against him, the Court may, put such questions to him as it considers necessary and shall for the purpose of aforesaid question him generally on the case after the witnesses far the prosecution have been examined and before he is called on for his defence. In Aminul Haq v. The Crown (PLD 1952 FC 63) it was observed that the whole object of enacting section 342, Cr. P. C. Is that the accused's attention should be drawn to the specific points in the evidence on which the prosecution claims that the case is made out against him, so that he may give any explanation he desires. Similarly, in Abdul Wahab v. The Crown (PLD 1955 FC 88), the Court observed that the object of examining an accused person under section 342 of the Code of Criminal Procedure is to draw his attention to those points is the evidence which are likely to influence the Judge in arriving at conclusion against him. In another case in Abdus Salam Molla v.
The Crown (PLD 1955 FC 129), the Court further observed that compliance with section 342 of the Code is absolutely essential. It is not as an empty formality and particular care should be taken that Important elements in the prosecution case which need an explanation from the accused person are put to him in a succint manner and his reply is recorded. It is wholly against the provisions of the Code and the demands of natural justice that a person should be convicted on the basis of a circumstance to which his notice was not drawn and which he is not asked to explain.
"(1) One incised wound -- ''x 1/6'' on the medial side of little finger of the left hand.
(2) One abrasion on the palmer aspect of middle finger of the left hand -- '' x
(3) One abrasion on the ring finger of the left hand -- '' x1/10 '' (palmer aspect)."
The two Courts have relied on these injuries as affording sufficient corroborative evidence of his confession to record his conviction on it. In this connection the trial Court observed that "obviously" there injuries were sustained by Naqibullah at the time he was giving blows to the deceased and during the grappling and that there injuries were "suggestive of the factum of grappling between the deceased and the accused." The Court rejected his explanation that he had sustained the injuries while opening a box of tea leaves by hammer and observed that these injuries were not likely to be sustained by opening a box of leaves of tea. Likewise in this connection the High Court in rejecting the explanation given by the accused for the three injuries on his left hand observed that it was noteworthy that the two abrasions were found on his palmer aspect and that nobody will open his left palm and place it over a box of tea leaves to receive the hammer blow caused by his right hand. In the opinion of the Court the injuries on the left hand of Naqibullah were apparently "the result of the feeble struggle which the deceased could put up or may be those were caused when Naqibullah was using his weapon against the deceased."
The findings by the two Courts that the injuries found on the left hand of Naqibullah accused were the result of grappling between him and the deceased or the feeble struggle which the deceased could have put up with him or may have been caused when the accused was using his weapon against the accused, are all based on conjectures and surmises and on no evidence at all. There is not an iota of evidence on the record to show that there had been any struggle whatever between Naqibullah accused on the one hand and the deceased on the other while he was done to death. It is not in the evidence that he was a left hander and that these injuries on the finger and palm of his left hand were caused to hire while he was wielding the chhuriin his left hand. There is no plausible explanation for the two abrasions caused by blunt weapon found on the palmer aspect of the deceased. No such injuries were found on the person of Wasal accused who is also alleged to have inflicted another injury to the deceased with the carne chhuri. Moreover according to the medical report of the doctor the duration of the injuries was 72 hours. In cross-examination in Court the doctor admitted that the injuries were probable to have been caused within 36 to 72 hours from the time of his examination. He medically examined the accused a! 3-00 p.m. On the 22nd of July 1974 and the occurrence took place at about Khuftanwela on the 20th of July 1974. It cannot, therefore, be conclusively held from the medical evidence that the accused had received the injuries on his hand during the encounter and not before or after it.
I, would, therefore accept this appeal of both the appellants, sot aside their convictions and sentences, They are allowed the benefit of doubt and acquitted. They may be forthwith set at liberty if not wanted in any other case: ANWARUL HAQ, J.-I agree.
DORAB PATEL, J. -I agree.
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