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Criminal Appeal No. 364 of 1966, decided on 30th July 1968.
S. 304---Retracted confession nut found to be voluntary and true---Corroboration of such confession from some independent circumstance completely lacking---Conviction and sentence passed on accused set aside.
Azizullah K. Shaikh for Appellant.
Ale Raza for A. A. G. for the State.
Date of hearing: 30th July 1968.
Four persons, namely, Chatto, his two real brothers Soomar and Dano along with their cousin Ghulam Ali were tried for the murder of Mst. Wadhul in furtherance of their common intention on the 28th of January 1966, in deh Waguni by the learned Sessions Judge, Sukkur, who acquitted Soomar, Dano, and Ghulam Ali but convicted Chatto under section 304, Part 1, P. P. C. and sentenced him to undergo rigorous imprisonment for ten years and also to pay a fine of Rs. 1,000 or in default to undergo rigorous imprisonment for a further period of one year. The convicted person has appealed.
2. Briefly narrated the prosecution story is that on the eventful day, a Pehr after sunrise, the appellant Chatto along with his co-accused, took Mst. Wadhul deceased to a rape-seed cultivation in Survey No. 246 and she was strangled there by Chatto and his brother Soomar. Ghulam Ali, who was with them at that time, had a gun with him. The outcries of the victim attracted her brother Ali Bakhsh and his mother Mst. Nihalan to the spot. They saw Chatto and Soomar holding both ends of the Dopatta of the deceased and were gagging her. Ghulam Ali threatened Ali Bak.hsh and Mst. Nihalan who raised an alarm which attracted M isri to the spot but by the time he reached the scene of the crime the culprits had run away. Ali Bakhsh and Mst. Nihalan mentioned to Misri what had happened and he confirmed that he had seen Chatto and others gong running. The deceased was lying dead in the field.
3. Leaving Mst. Nihalan and Misri to guard the dead body Ali Bakhsh went and informed his father Chutto who was present at the Otak of Kalu Malhan of what had happened. He came to the place of the occurrence which is about three miles from the Oatak of Kalu Malhan and found Mst. Wadhul lying dead. Mst. Nihalan and Misri P. Ws. were present near the dead body. After making enquiries from them, Chutto went to Ghotki Police Station and reaching there at about 9-15 p. m. he lodged the report Exh. 18 which was taken down by H. C. Habibullah P. W. 9. He left for the spot and reached there at about mid-night. The distance between the place of the occurrence and the Police Station is 12 miles.
4. The case was investigated by Sub-Inspector Anwar Ali P. W. 1.0 who reached the spot immediately after the arrival there of the Head Constable. He prepared the inquest report in the presence of mashirs Muhammad Nawaz and Din Muhammad and despatched the dead body to the mortuary at Ghotki for post-mortem examination. He also prepared the mashirnama Exh. 11. The appellant was arrested on the 29th of January 1966, and on the same day he made the confessional state ment Exh. 15 before Mr. Anwar Ali Shah, Mukhtiarkar and Magistrate 1st Class, Ghotki.
5. The autopsy on the deceased's dead body was held by Dr. Abdul Jabbar P. W. 4 on the 29th of January 1966, at 3-30 p.m. He found a ligature mark all round the neck 1 " wide just below the thyroid cartilage. It had a contusion 1" in diameter on left side of neck " above the ligature mark.
Death, in the opinion of the doctor, was due to asphyxia consequent upon strangulation and throttling.
6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He retracted from the confessional statement which he attributed to police pressure. Clarifying the point, the appellant elaborated in his statement, at the trial, that the police took away their women-folk and pressure was brought to bear on him with the result that he confessed to get their women-folk released from the Police custody. No evidence was produced in defence.
7. At the trial, Ali Bakhsh P. W. 2 and his mother Mst. Nihalan P. W. 3 gave direct evidence. Misri. P. W. 5 claimed that he went to the spot on hearing the cries a Pehr after sunrise and saw two or three persons running away at a distance of 30 to 35 paces from the place where the dead body of Mst. Wadhul was lying but he could not identify them. On his enquiry, Ali Bakhsh and his mother told him that Chatto appellant and others had strangled Mst. Wadhul to death. The learned trial Judge gave cogent arid convincing reasons for disbelieving the ocular testimony as also the evidence of Misri and I find myself in complete agreement with him on this point.
8. The trial Judge mainly relied on the retracted judicial confession which the appellant had made on the 29th of January 1966 before Mr. Amir Ali Shah, Mukhtiarkar and 1st Class Magistrate, Ghotki, and found its corroboration from the medical evidence. I find that the learned Magistrate recorded the con fessional statement of the appellant after observing all the for malities enjoined by the law. He appended necessary certificate at the foot of the confession regarding its voluntary nature and deposed, at the trial that he felt satisfied after putting questions to Chatto that the confession which he was making was voluntary. The appellant admitted in his confessional statement (Exh. 15) that he suspected his wife Mst. Wadhul of illicit intimacy with Soomar Malhan. The appellant continued that on the day of the alleged occurrence Mst. Wadhul left his house at mid-day for cutting grass. He followed her and when he reached the rape-seed crop he found her present with her param our Soomar Malhan in a naked condition: The appellant challenged them: Soomar Malhan threatened him with hatchet and managed to escape. The deceased, however, remained there and deprived of the power of self-control the appellant strangled her to death.
9. Now two questions arise for consideration before a retracted judicial confession is made the sole basis for conviction of its maker. First, whether the confessional statement was voluntary and secondly, whether it was true. On going through the statement of the Magistrate who recorded the confessional statement, one gets the impression that the confession was voluntary, but what militates against its voluntary nature is the admission made by Chutto P. W. 8. The witness candidly admitted that the mother, sisters and the brother's wife, of the appellant were taken away by the Sub-Inspector Polite to the 'Ghana and were detained there till such time as Chatto appellant made the confession. The trial Judge took into consideration the denial made by the Sub-Inspector of Police on the point and came to the conclusion that the confessional statement was voluntary. It has to be borne in mind that the Sub-Inspector was interested to deny any such allegation. The circumstance that the appellant was produced before the Magistrate for his confessional statement the same day, in no way proved affirmatively that the statement Exh. 15 which he made to the Magistrate was not the result of Police pressure in view of what Chutto candidly admitted during his cross-examination. Chatto had no soft corner for the appellant as he considered him res ponsible for the commission of the crime and I am not prepared to believe that he trade the admission in order to help the appel lant. Once it is believed that the women-folk of the appellant were taken to the Thana by the Sub-Inspector of Police and were detained there till the appellant made the confession, the finding that the confessional statement was made by the appellant voluntarily could not be sustained. It appears the investigating officer realised the weakness of the case and actuated from a desire to procure conviction of the appellant lie put pressure on him to make him co fess to the crime by taking his mother, sisters and the wife of his brother to the Police station and detaining them there till such time that Chatto made the confession.
10. Turning to the question whether the confessional state ment was true, I should say at once that the mode of killing, as stated by the appellant in his judicial confession, was most probably introduced after the result of the post-mortem examina tion became known to the Police. For, originally, the case of the prosecution was that the deceased was strangled to death. Both Ali Bakhsh and his mother Mst. Nillalan stated to the Police as well as in their statements recorded under section 164, Cr. P. C. that the Dopatta had been tied round the neck of the deceased, and that Soomar and Chatto appellant were pulling the Dollattu at both the ends while strangulating her. No Doputta or any other piece of cloth was found tied round the neck or lying near the dead body of Mst. Wadhul and as the doctor, who performed the post-mortem examination, found that the deceased had been throttled to death, it appears the appellant was con veniently made to say so in his confessional statement which he made to the Magistrate but from which he retracted at the earliest opportunity. No other corroboration of the retracted confession by the appellant is forthcoming. The prosecution had, in the first instance, implicated along with the appellant three other persons but they were acquitted as the ocular evidence was held to be utterly unreliable.
11. In view of my conclusion that the confessional statement which the appellant made to the Magistrate was not voluntary and much less true I feel that the conviction of the appellant cannot be maintained particularly in the absence of corroboration of the retracted confession from some independent circumstance which is completely lacking in this case. I would, therefore, accept the appeal, set aside the conviction and the sentence passed on Chattu appellant and order him to be acquitted. The fine, if realised, shall be refunded to the appellant.
Appeal accepted.
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