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Criminal Appeal No. 90 of 1966, decided on 12th July 1969.

S. 164‑Confession, retracted‑Accused neither mentioned in dying declaration nor in First Information Report‑Circumstantial evidence implicating accused not inspiring confidence‑No reliance, held, could be placed on such confession unless corroborated by independent evidence.

S. Murtaza for the State.

Date of hearing : 9th July 1969.

The appellant was tried under section 302, P. P. C. for the murder of Dad Muhammad together with three other accused namely, Kadan, Muhammad Bux and Pir Bux. By his judgment dated 18th January 1966, the learned Sessions Judge, Dadu acquitted the said Kadan, Muhammad Bux and Pir Bux, but convicted the appellant under section 302 and sentenced him to transportation for life. The appellant has filed an appeal which has now come up for hearing before us.

2. According to the prosecution the material facts are as follows :‑

The appellant and the family of the deceased both lived in the Golimar area near Khairpur Nathan Shah. On the morning of 1st August 1965, Illahi Bux, a relation of the appellant, was murdered and a son of Dad Muhammad deceased wag suspected of that murder, therefore, according to the prosecu tion, on the same day, at about sunset time, as Dad Muhammad was going with his camels on the public road from K. N. Shah to Sita Road Station, the appellant attacked him and killed him with hatchet blows near the Khari of Muhammad Bux Shaikh about a furlong from the K. N. Shah Police Station. Dad Muhammad had raised an alarm when he was attacked, therefore, on the commotion, his son P. W. Shaft Muhammad and P. Ws. Illyas and Ghulam Hussain rushed to the vardat. They saw Dad Muhammad lying injured and Dad Muhammad told them that he had been attacked by the three acquitted accused. Thereupon his son Shafi Muhammad went to the police station namely, K. N. Shah, which was only at a call's distance from the vardat and informed P. W. Gehimal S. H. O. of the occurrence. Instead of recording an F. I. R. P. W. Gehimal S. H. O. went with P. W. Shaft Muhammad to the vardat, he saw that the condition of Dad Muhammad was serious and directed that he should be taken to hospital, Dad Muhammad was admitted into a local hospital at 9‑00 p.m., and shortly thereafter S. H. O. Gehimal arrived at the hospital. P. W. Dr. Ghulam Kadar, who was treating Dad Muhammad found that Dad Muhammad's Con dition was critical, therefore, he advised P. W. Gehimal S. H. O. to record his dying declaration. P. W. Gehimal S. H. O. sent for P. W. Imdadali, a retired police officer, and began recording the dying declaration of Dad Muhammad (Exh. 9). Dad Muhammad said in his dying declaration that three acquitted accused had attacked him with hatchet blows, but he became unconcious before he could sign the statement and at about 2‑30 a.m. he died. Meanwhile, Gehimal S. H. O. had returned with P. W. Shall Muhammad and lodged an F. I. R. (Exh. 15). Thereafter the appellant appeared at the police station with blood‑stained clothes and was arrested and the shirt, banyan and loincloth which he was wearing were secured from him as they were blood‑stained vide Mashirnama (Exh. 22) which was witnessed by P. W. Imdadali. We have to observe here that there are material discrepancies in the prosecution case about the time of the appellant's arrest. Thereafter on 2nd August 1965 the appellant volunteered to produce the hatchet used by him in the occurrence and at about 9‑30 a.m. on 2nd August 1965, the blood‑stained hatchet was recovered from the cultivated land of one Noor Muhammad Panhwar, near the eastern bank of the Kuddan Wah. All the recoveries were sent to the Chemical Analyser for his report and according to his report (Exh. 25) all the recoveries were stained with human blood. Meanwhile as the appellant wanted to record his confession, he was produced on 3rd August 1965 before P. W. Allah Bux Mukhtiarkar and F. C. M., Mehar, and P. W. Allah Bux recorded the appellant's judicial confession. It is relevant to observe here that although the appellant admitted that he had killed Dad Muhammad in his confession (Exh. 13), he said that he had been attacked by the said Dad Muhammad, therefore, in self‑defence he had given him hatchet blows and knocked him down and then run away to a jungle when he was hiding till he was arrested on the next day. After completing investigations the appellant and the acquitted accused were challaned.

3. In his statement in the Courts below the appellant denied the offence alleged against him and also denied the recovery of the blood‑stained clothes and hatchet. He also repudiated his confession, and said that he had been induced by the police to make this confession by the promise that if he made a confession, the other accused would be released. The appellant did not produce any evidence in his defence.

4. Although the dying declaration of Dad Muhammad deceased (Exh. 9) and his oral dying declaration to P. Ws. Shafi Muhammad, Illyas and Ghulam Hussain implicated only the acquitted accused, the learned Sessions Judge had acquit ted the said accused and convicted the appellant. This con viction is based on the judicial confession of the appellant, the recoveries to which we have referred, and the prosecu tion evidence for the appellant's motive for murder. We have, therefore, to examine in this appeal whether this evidence is sufficient to support the appellant conviction.

5. At the outset we have to observe that as the appel lant had retracted his confession, no conviction can b sustained on such a confession unless it is corroborated by independent evidence. Additionally, in his dying declaration, Dad Muhammad deceased had only implicated the acquitted accused, therefore, there is a very material discrepancy in the prosecution evidence, and in view of this discrepancy no reliance can be placed on the appellant's confession unless it is corroborated by independent evidence of a very strong. nature. Further the prosecution evidence of motive, by itself, is not sufficient to corroborate the confession of the appellant, therefore, we have to examine whether the evidence of the recoveries is sufficient to corroborate the appellant retracted confession.

6. Although the occurrence took place at about sunset time, which would be before 8‑00 p.m., the F. I. R. (Exh. 15) vas not lodged till 10‑30 p.m. although the police station was at a call's distance from the vardat. The explanation of P. W. Gehimal S. H. O. is that when P.W. Shafi Muhammad informed him of the occurrence, he first went to the vardat and directed that Dad Muhammad should be sent to hospital, then he went back with P. W. Lhafi Muhammad and re corded the F. I. R. The fact that the F. I. R. was recorded after P. W. Gehimal S. H. O. had visited the vardat does not inspire any confidence in the investigation agency, and in this background we shall examine the conflicting version about the arrest of the appellant. According to mashirnama of arrest (Exh. 22) and the evidence of P. W. Imdadali a retired police officer who was a mashir of the arrest, the appellant was arrested on' 2nd August 1965, at 9‑30 in the morning and the blood‑stained clothes warn by him were secured by the said mashirnama. However, in his letter (Exh. 12) to P. W. Allah Bux, Mukhtiarkar and F. C. M. for recording the appellant's confession, P. W. Gehimal S. H. O. had written that the appellant had been arrested on 1st August 1965, at 9‑30 p.m. It is the case of prosecution that the appellant had himself appeared at the police station, and that the F. I. R. was recorded at 10‑30 P.M. on 1st August 1965. If P. W. Gehimal's letter (Exh. 12) is correct, it means that the F. I. R. was recorded one hour after the appellant's arrest, but as the name of the appellant is not mentioned in the F. I. R. this discrepancy casts very great doubt on the prosecution case. Perhaps in order to overcome this difficulty, P. W. Gehimal S. H. O. said in his evidence that the appellant had been arrested shortly after 2‑00 a.m. on 2nd August 1965, but when he produced Exh. 12, he corrected himself and said "I see Exh. 12 . . . . . it was through mistake that the date of arrest of the accused in the letter was shown as 1st August 1965. It was 3rd August 1965." But the mashirnamas both of the appellant's arrest and the recovery of the hatchet at his instance (Exhs. 22 and 23) respectively are both dated 2nd August 1965. These mashir namos were prepared by P. W. Gehimal S. H. O., therefore on the crucial question of the time and date of the appel lant's arrest, this witness has given three different dates of the appellant's arrest, namely, 1st August 1965, 2nd August 1965, and 3rd August 1965. In these circumstances the least that the prosecution could have done was to produce the police lock‑up diary in order to prove the time and dates of the appellant's arrest. As it has not done so, we have to draw adverse inference against the prosecution case and it follows that no reliance can be placed on the prosecution evidence about the appellant's arrest. Therefore, his arrest is not of any corroborative value. The only other piece of evidence to corroborate the retracted confession of the appellant is the recovery of the blood‑stained hatchet vide Mashir nama (Exh. 23). But this recovery also does not inspire confidence, because whilst P. W. Gehimal S. H. O. has stated that the date of the appellant's arrest was 3rd August 1965, the mashirnama of the recovery is dated 2nd August 1965. The alleged recovery is, therefore, not sufficient, in the cir cumstances of the case, to corroborate the appellant's retract ed confession, but there is no other evidence whatever either to corroborate that confession or to implicate the appellant in the occurrence. Therefore, the prosecution have failed to prove beyond reasonable doubt the guilt of the appellant and his appeal has therefore to be allowed.

7. For the reasons given herein we had set aside the conviction and sentence passed against the appellant and order his release unless required on any other charge, on 9th. July 1969.

Appeal allowed.

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