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Confirmation Case No. 49 of 1957/Criminal Appeal No. 323 of 1957, decided on 8th October 1957.

‑Contradictory confessions of several accused cannot be true.

Judicial confessions of three accused were contradictory of one another as regards motive and details of crime.

Held, that the confessions could not be regarded as true, especially when the trial Court's finding was that one of the accused was subjected to threats.

, S. 164‑Time given to accused for reflection before recording his confession should succeed and not precede the warning‑‑ Necessity of questioning accused as to why he was confessing‑Sind Court Criminal Circulars, Part C, Chap. VI, r. 4.

Time for reflection given to a confessing accused should succeed the warning and not precede it and the first question that should occur to a Magistrate is to enquire as to why he was making a confession.

Where this procedure was not followed, and there were material contradictions in the confessions of three co‑accused, one of whom was found to have been subjected to threats, the confessions were discarded as undependable.

‑Identification of‑Recovery of blood‑stained clothes‑Not in themselves sufficient for conviction for murder.

‑Appeal from conviction by one only----- Other accused entitled to benefit of acquittal ordered in appeal.

Azizullah Shaikh for Appellant.

Abdul Qadir Shaikh for Respondents.

.--‑ Appellants Talib Hussain, Ghulam and Waryam were found guilty under section 302, P. P. C. by Mr. F. E. Ansari, Additional Sessions Judge, Nawabshah for murdering Ahmed Bhangur during the night between 2nd and 3rd September 1956. Talib Hussain has been sentenced to death while the other two, namely Ghulam and Waryam have been sentenced to transportation for life. Talib Hussain and Ghulam have filed appeals and the case has also been submitted to us for confirmation of the death sentence imposed on Talib Hussain.

Ahmed Bhangur the victim of the assault was in the employ of Ganwar Shah complainant who had engaged him for clearing jungle in his cultivation. Ahmed deceased used to sleep at this field where he had also constructed a small but for himself. In the morning of 3rd September 1956, Ganwar Shah on the normal course went to his fields and found Ahmed in bed. He gave out a call but there was no response. He then went and lifted the rug which covered Ahmed. On removal he discovered that Ahmed was lying dead with injuries on his person. A report was lodged with the police that very day at about noon. The prosecution case is that the police could not discover the assailants and sought assistance of Muhammad Saleh P. W. 8. Muhammad Saleh approached Ghulam and Waryam and told them all round trouble and beating was going on account of the murder of Ahmed. Thereupon Ghulam replied that, Ahmed had been murdered by him, Talib Hussain and Waryam because Ahmed was on illicit terms with the wife of Bacho a relative of theirs. Waryam also supported this version, Muhammad Saleh asked Ghulam and Waryarn to bring Talib Hussain. Talib Hussain was subsequently brought. He also admitted the version given out by Ghulam and Waryam. Muhammad Saleh produced these three persons before Muhammad Afzal P. W. 9. These three persons repeated their admissions before him: The police was ultimately informed about their extra‑judicial confessions the police on their part produced Talib Husain for judicial confes sion on 17th September 1956. Mr. Mazhar Ali recorded his confession which is Exh. 32‑in the case. Waryam was also pro duced the same day before the same Magistrate and his confession was also recorded at 11 a.m. This confession is Exh. 33. Ghulam was produced for his confession on 18th September 1956, before the same Magistrate. A silken shirt and a loin cloth secured from the person of Talib Hussain were found blood‑stained. They were taken possession of and

sent to Chemical Examiner who testified that these clothes had human blood upon them.

The appellants denied having made any extra‑judicial confessions and alleged that the judicial confessions had been procured by threat and intimidation. The learned trial Court found that the confession of Ghulam was not voluntary and discarded it, but he accepted the judicial confessions made by Talib Hussain and Waryam.

The mainstay of the prosecution case are the three judicial confessions made by Talib Hussain, Waryam and Ghulam. These confessions are however, so contradictory on material points that it is surprising how the learned Judge accepted two of them to be voluntary and genuine. . As to the motive of the offence Talib Hussain in his confession stated as follows :‑

"I am on friendly terms with Ghulam and Waryam since 12 months. About 20 days back I was invited by them to a feast. About 12‑13 days back while on my return from Moro I went to them at noon time. Both of them told me that one Ahmad Bhoongar was on illicit terms with a woman of Ganwar Shah. I learning this disrespect of Sayyeds became red. Both of them forced me that this Ahmad Bhoongar must be killed.‑ I told them that I must sacrifice myself upon the Ahalbaits ".

There is nothing in the evidence that Talib Hussain was a Shia and that too of such a fanatical character that he would kill a plan simply because he was on illicit terms with a woman of Syed family. There may be such devouts in this world but there must be cogent evidence to establish that this particular' individual was of such a mind. Waryam however, gave a different version in his confession. To use his own words :‑

"About 21 or 22 days back Jumo Mahar had come to the Kharira near Ganwar Shah. Jumo told Ghulam that Ahmad. Bhungar was possessing a pistol and gun as. he was on criminal intimacy with the wife of Bacho and further said to him that he had no ghairat' about 5‑6 days there after Talib Hussain came and Ghulam informed him that Ahmad Bhungar was possessing a pistol and gun and that he was on criminal intimacy with the wife of Bacho Mahar. He further asked him to be in common intention with them, to murder Ahmad."

A religious motive has now degenerated into an attempt to commit theft. Ghulam is more explicit. He stated in his confession :‑

"About 13 or 14 days back Waryam Mahar and Talib Hussain brought me from the house of Waryam where I was staying as I had taken jungles on lease. Talib Hussain told me that he was disciple of Ganwar Shah where he had gone to take a bullock from him as he had to plough land on Katcha side. At that time Ahmad Bhungar armed with a pistol was sitting with Ganwarshah and he (Ganwarshah) gave Ahmad Bhungar Rs. 600 for cutting the jungle. Talib Hussain further told me that I should accompany him and Waryam to commit theft of Rs. 600 and pistol of Ahrnad Bhungar."

Talib Hussain who is sought to be made out a religious devout on the basis of his admission in the confession now turns out to be a person who wants to commit murder with a view to commit a theft of Rs. 600 and a pistol. As to the incident itself the versions given in all these three confessions are no less diametrically opposed. Talib Hussain stated :‑

"They showed me one man sleeping on the cot and said that he was Ahmad Bhungar who was sleeping on the cot. I then gave a hatchet blow on the face of Ahmad. Then Ghulam sat over Ahmad and began to slaughter him with hatchet. Waryam held the deceased from his legs".

Waryam however stated :‑

"Talib Hussain at once stood by his head and gave him hatchet blows".

He nowhere stated that he held the deceased by his legs. Ghulam stated

"Talib Hussain at once went ahead to Ahmad Bhungar. He at once gave 2 or 3 hatchet injuries to Ahmad on his face or some other body who died".

He did not admit the parts that were ascribed to him anti Waryam by Talib Hussain. It will be seen that these judicial confessions contradict each other and cannot be true. The learned Judge himself came to the conclusion that Ghulam had been giver threats. Where was the guarantee that similar treatment ha6 not been meted out to Talib Hussain and Waryam. It is further admitted by the learned Magistrate who recorded the confessions of Talib Hussain and others that he gave only 10 minutes to Talib Hussain for reflection. Rule 4 of Chapter VI Pact C of the Sind Court Criminal Circulars requires that an accused should be given at least one hour for reflection. The record of the confession of Talib Hussain Exh. 32 shows that he was allowed time for reflection from 9‑15 a.m. to 11‑45 a.m. but in his statement Mr. Mazhar Ali the Magistrate concerned said that appellant Talib Hussain had been kept sitting from 9‑15 a.m. to 11‑45 a.m. He was questioned for the first time and warned at 11‑45 a.m. and only 10 minutes thereafter he began recording the confession. Time for reflection should succeed the warning and not precede it and this is why B the learned Magistrate admitted that only 10 minutes had been given to Talib Hussain for reflection. It may be that the record of the Magistrate as to time of reflection may also be incorrect in regard to Waryam. There was no close questioning of the appellants as to why they were making confessions. The first question that should occur to a Magistrate is to enquire as to why he was making a confession. This was not done. Keeping in view the material contradictions between the three judicial confessions, failure of the Magistrate to follow strictly the procedure prescribed and finding of the learned Judge that at least in one case threat had been given to the appellant, it is absolutely D necessary in the interest of justice that all the three judicial confessions be discarded as undependable.

The story as to how Muhammad Saleh came to obtain extra judicial confession from Ghulam and Waryam and then Talib Hussain is wholly incredible. These persons had not been named or suspected so far. Doubt had been thrown on Ali Nawaz and Ali Murad in the first information report lodged by Ganwarshah. A man confesses either because of repentance of (or when he ) finds no way out. In this case we do not find trace of any of these. It was admitted by Muhammad Juman P. W. 4 that Khuro Mahar is a cousin of Muhammad Saleh and Muhammad Saleh had asked for Umer's daughter for marriage with Khuro. Ghulam appel lant had also asked for the same girl in marriage. After Ghulam had been arrested in this case Khuro married this girl. It has been argued that Muhammad Saleh was interested in securing the arrest of Ghulam to facilitate the marriage of Khuro with the daughter of Umer. Muhammad Saleh himself admits that his services had been requisitioned by the police for unearthing the crime. Muhammad Afzal is no doubt a big Zamindar but he is cousin of Sirai Sulleman employed as D. S. P. in Sind. The extra‑judicial confession made in such circumstances cannot he relied upon.

We a re then left with identification of footprints and recovery of two blood‑stained clothes in the case of Talibli Hussain. These by themselves cannot afford a basis for conviction.

The result is that the appeals succeed and Talib Hussain and Ghulam are acquitted. Waryam has not appealed but he is entitled to the benefit of this judgment. He is also' acquitted.

A. H. Appeal accepted.

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