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‑‑ Ss. 302 8t 307‑Eye‑witnesses stating in their testimony during trial that they could not identify any culprit as it was dark‑Trial Court recording conviction and sentence on basis of confession made by one of accused which was neither voluntary nor true, nor corroborated by any prosecution evidence or circumstantial evidence‑Confession made eight days after accused had remained in police custody and retract ed‑No explanation furnished by prosecution as to why accused made confession eight days after remaining in Police custody ‑Maker of confession shifting burden of more serious offence towards his co accused and showing only his presence without attributing to himself any offence and ascribing fatal role of causing death of deceased and injuries to others‑Confession, therefore, exculpatory and could not be relied upon to maintain conviction of other accused‑Accused acquitted in circumstances.

Dost Muhammad and another v. The State P L D 1971 Pesh. 41 and

QazI Parvaiz Iqbal and 2 others v. The State P L D 1976 Kar. 583 rel.

‑‑ S. 24‑Penal Code (XLV of 1860), Ss. 302 & 307‑Confession Confession not finding any corroboration from prosecution evidence, held, could not be acted upon in recording conviction of accused.‑ [Confession]. [p. 196)8

Gul Jamal and another v. The State 1980 S C M R 654 rel.

‑ S. 24‑Penal Code (XLV of 1860), Ss. 302 & 307‑Confession- Confession not voluntary, held, could not be made basis of convic tion.‑[Confession].

Naqibullah and another v. The State P L D 1978 S C 21 ; State v. Ishaque 1980 P Cr. L J 597 and Khan Muhammad and another v. The State 1981 SCMR597rel.

(d) Evidence Act (1 of 1872).‑.

‑‑ S. 24 ‑Penal Code (XLV of 1860), Ss. 302 & 307‑Retracted con fession, held, could not be relied upon to convict an accused of an offence unless it was corroborated by other independent evidence. [Confession]. [p. 197]F & G

The State v. Minhun alias Gul Hassan P L D 1964 S C 813 rel.

‑‑ S. 24‑Penal Code (XLV of 1860), Ss. 302 &,307‑Retracted con fession‑Although a confession which was proved to be true and voluntary, could form basis of conviction of maker thereof yet a confession which was false, uncorroborated, involuntary and retract ed, held, could neither be used against its maker nor against his co‑accused.‑[Confession].

The State v. Minhun alias Gul Hassan P L D 1964 S C 813; Abdul Baleen; v. The State 1984 P Cr. L J 611; Sharafat Hussain v. The State 1984 P Cr. L J 1730 and Nazeer Hussain v. The State 1984 P Cr. L J 2683 rel.

Muhammad Nawaz Ahmad for the Sate.

M. Zafar for Appellants (in Criminal Appeals Nos. 23 and 24 of 1985).

Basharatullah for Appellant (in Criminal Appeal No. 25 of 1980. .

Ehsan‑ul‑Haq for Appellant (in Criminal Appeal No. 26 of 1985).

Dates of hearing : 22nd, 23rd and 24th December, 1985. '

.‑This murder reference and Criminal Appeal No. 23 of 1985 arise from judgment, dated 30‑6‑198.1 of the Sessions Judge, Quetta whereby he has convicted appellant Abdul Baqi under se4tion 302, P.P.C. and sentenced him to death and to pay a fine of Its. 1,000 or in default of payment of line to undergo R.1. for one year. The other co‑accused of appellant Abdul Baqi namely Khuda‑i‑Mir, Saifullah and Khan Muhammad have also been convicted under section 302 read with section 148, P.P.C. and sentenced to undergo R. I. for one year and a fine of Rs. 500 or in default whereof to undergo R. 1. for three months. All the four appellants have also been convicted under section 460, P. P. C. and sentenced to undergo R. I. for 5 years and to pay fine of Rs. 1,000 or in default to undergo R. I. for one year. Accused ,Saifullah has further been convicted under sec tion 307,. P. P. C. and sentenced to undergo R. I, for five years and to pay a fine of Rs. 1,000 or in default whereof to undergo R. I. for one year. Appellants Khan Muhammad, Kbuda‑i‑Mir and Abdul Baqi have further noon convicted under section 307 read with section 149, P.P.C. and sentenced to undergo R. I. for five years with a fine of Rs. 1,000 or in default whereof R. I. for one year more. All the four appellants have filed Criminal Appeals Nos. 23 of 1985, 24 of 198, 25 of 1985 arid 26 of 1985 challenging their conviction and sentence. The judgment in the present murder reference will also dispose of aforesaid four appeals. Notice for enhancement of sentence was given to appellants Khuda‑i‑Mir, Saifullah and Khan Muhammad.

2. The facts of the case briefly stated are that Syed Tabarik Ali Shah Sub‑Inspector of Police Station Industrial Area, Quetta came to know from the Civil Hospital that some persons had been injured and one of them had died on 1‑10‑1981 in the morning and went to spot at 4‑30 a. m. in a bunglow at Al‑Gilani Road where Shah Wali complainant reported to him that he and his parents family had come from Afghanistan and were residing in a bunglow at Al‑Gilani Road. Many political parties were working against the regime in Afghanistan and be did not know with which party his father had sympathies. A few days ago his father had gone to Qandhar and on the night of occurrence they went to their beds at 10‑0 in the night. His elder brothers Shah Farooq and Ghulam Farooq were asleep in the rooms. His mother Mst. Shah Jenan and his two sisters Mst. Shah, Pari and 4st. Shaheena and younger brother wore also asleep in a room. At about 3‑00 in the morning he was awoken by 8/9 persons out of whom one asked him as where was Khalqi and he replied that there was no Khalqi there. During this conversation all the inmates of the house were also awoken and came out. His brother Shah Farooq came out of room and caught hold one of the assailants and his mother and sisters overpowered another assailant. On this one of the assailants asked his companions to do away wish the complainant party. In the meantime both the persons who had been overpowered by his brother Shah Farooq and his mother and sisters started firing and one of the assailants also started firing as a result of which his brother Shah Farooq was injured with three shots and died at the spot. His mother received two bullet injuries and his sister Mst. Shah Pari received one bullet injury. The assailants made good their escape. He took the deceased Shah Farooq and his mother and injured sister to the Civil Hospital, where the S. I. recorded his report at about 4‑30 a. m. The complainant further stated that he could identify three persons out of the assailants but he was not acquainted with any of them. They had no previous enmity with any person. This report was incorporated in F.I.R. No.59/1981 on the same day. Accused Abdul Baqi was arrested on 24‑1‑1983, accused Khan Muhammad on 18‑LO‑1982, Saifullah on 30‑12‑1982 and accused Khuda‑i‑Mir on 20‑4‑1984. Challan was submitted to‑the Sessions Judge on 5‑5‑1984. Accused Khan Muhammad also made a confession on 26‑10‑1982. The learned Sessions Judge charged all the four appellants under section 302/460/307/148/149, P. P. C. to which they pleaded, not guilty and claimed trial. The State produced 14 witnesses in support of the prosecution case. Out of whom P. W. 3 Shah Wali, P. W. 4 Haji Ghulam Farooq, P. W. 5. Mst. Shah Johan are eye‑witnesses of the occurrence. P. W. 6 Dr. Muhammad Yousuf conducted post‑mortem examination on the dead body of deceased Shah Farooq and found three gunshot inlet wounds with corresponding outlet wounds. According to the opinion of the doctor the death was due to injury to heart, sudden massive hemorrhage in peural and pericardial cavity, shock and death, and death was immediate. He had also examined P. W. 5 Mst. Shah Johan for her injuries and also Mst, Shah Pari for her injury. The latter was not summoned as witness. All the three eye‑witnesses had stated in their testimony during the trial that they could not identify any culprit as it was dark. P. W. 4 Haji Ghulam Farooq identified only accused Khuda‑i. Mir in the identification parade because he and his mother had been working in their house. In so far as the ocular testimony is concerned although it adverts to the offence committed by the assailants on 1‑10‑1981 at 3 a.m. in their house but they did not and could not identify any of the assailants except appellant Khuda‑i‑Mir. About the latter it was also deposed by P. W. Haji Ghulam Farooq that he was not present among the assailants at the time of the incident. The State had failed to produce any ocular evidence in support of the' prosecution. However, the learned Sessions Judge has relied upon the confession of appellant Khan Muhammad Exh. P. M. According to this confession the appellant Khan Muhammad had stated that he alongwith three other appellants and some other persons used to commit robberies and dacoities. In so far as the present occurrence is concerned he had stated that they had entered into the house of the complainant party at 2‑30 a. m. on that night, all the . inmates were asleep and some women were asleep on the ground. Suddenly one woman woke up and raised alarm. Simultaneously a young man came out of room and caught him whereupon appellant Abdul Baqi fired a shot at that young man who fell down and appellant Muhammad Siddique (who appears to be appellant Saifullah) fired at the females Subsequently be came to know from a son of female servant of the inmates of the house that the young man, who was injured by appellant Abdul Baqi, had died and his name was Shah Farooq and two women were also injured. Two empties and one lead of .38 bore pistol alongwith one live cartridge, one empty and one lead of .32 bore and one empty of .25 bore alongwith blood stained earth were recovered from the spot.

3. The appellants were examined under section 342, Cr. P. C. All the four appellants denied the commission of offence and said that they had been falsely charged. Appellant Khan Muhammad further stated that he had not made any confession.

4. It shall be seen that the learned trial Judge has relied upon the confession alone in recording conviction and sentence against the appellants. However, the minute perusal of the confession would show that firstly, it is not corroborated by any prosecution evidence ; secondly, it was made eight days after the appellant Khan Muhammad had remained in police custody ; and thirdly, it has been retracted.

5. In so far as the first point is concerned, there is not an iota of prosecution evidence to corroborate the contents of the confession. Actually the ocular witnesses could neither identify the assailants at the time of incident riot afterwards at the time of trial. According to the confession only two shots were fired one each by appellant Abdul Baqi and appellant Saifullah whereas according to the prosecution at least six shots were tired. three at the deceased, two at P. W. 5 Mst. Shah Jehan and one at Mst. Shah Pari. It shall also be seen that the empties, leads and one live cartridge recovered from the spot were of three different types of weapons i.e. .25 bore, .32 bore and .38 bore, whereas according to the confes sion only two weapons appeared to have been used. It shall further be seen that appellant Khuda‑i‑Mir has neither been charged by the eye‑witnesses nor is he mentioned in the confession as one of the culprits but he ha still been sent up for trial. ‑ The aforesaid circumstances will show that the confession does not find any corroboration from the prosecution evidence and it cannot, therefore, be acted upon in recording conviction against the appellants. In this connection we may refer to the case of Gul Jamal and another v. The State (1980 S C. M R 654).

6. The confession also does not appear to be voluntary. The con fessor, appellant Khan Muhammad, was arrected by the police on 27‑5‑1982 in connection with some other case against him under F. 1. R. No. 197 of 1981 and during that custody he had pointed out certain places to P. W. 11 Yar Muhammad Khan Inspector of Police, the then S. H. O. Police Station Sariab, Quetta. During investigation of the case under F. 1. R. No. 197 of 1981, appellant Khan Muhammad had also pointed out that be alongwith appellants Abdul Baqi, Khuda‑i‑Mir, Muhammad Saddique (alias Saifullah) and some other accused had entered the house, which is the scene of occurrence in the present case, for the purpose of committing dacoity, but the inmates of the house woke up and they could not commit any offence and appellant Abdul Baqi had fired one shot and appellant Saifullah had fired a shot at a female. The memo. of this pointation of places was prepared on 27‑5‑1982 and its copy is Exh. P/A‑2. Appellant Khan Muhammad was then sent to judicial lock up wherefrom he was arrested on 18‑10‑1982 in connection with the present case and he made the confession on 26‑10‑1982. The aforesaid circum stances will show that Khan Muhammad was already under arrest since 27‑5‑1982. He was again taken , into police custody on 18‑10‑1982 and remained under that custody for eight days whereafter he made the con fession. No explanation' has been furnished by the prosecution as to C why he made the confession eight days after remaining under police' custody. It has also come in the prosecution evidence that appellants Khan Muhammad was taken to the place of occurrence on 25‑i0‑1982 by P. W. 12 Syed Tabarik Ali Sub‑Inspector of Police accompanied by a Magistrate and P. W. 8 Haji Muhammad Shafi. It is alleged that he had pointed out the place of occurrence and circumstances of the case and on the next day his confession . was recorded. The Magistrate who accompanied the I. O. and the appellant to the place of occurrence on 25‑10‑1982 is the same who recorded the confession ‑on the next day and he is P. W. 7 Muhammad Hassan, now Assistant Commissioner, Bagh. This circumstance will show that the appellant was in the company of a Magistrate on 25‑10‑1982 and he could have volunteered to make confession on the same day if he really wanted to do so. The fact that the confession is not corroborated by any prosecution evidence or the circumstantial p evidence in the case would show that it is neither voluntary nor true. It is a false confession and this fact show that it is not voluntary and has been procured from the appellant by unfair means. A confession which is not voluntary cannot be made the basis of conviction and in this connection we may refer to the cases of Naqibullah and another v. The State (P L D 1978 S C 21), State v. Ishaque (1980 P Cr. L J 597) and Khan Muhammad and another v. The State (1981 S C M R 597).

7. Appellant Khan Muhammad, in his statement recorded under section 342, Cr. P. C. denied the making of the confession. It is well‑settled principle of criminal law that a retracted confession cannot be relied upon to convict an accused of an offence unless it is corroborated by other independent evidence. However, there is not an iota of prosecu tion evidence to corroborate the confession. It was, therefore, unsafe to rely upon the retracted confession to record conviction against the appellant. Moreover retracted confession cannot form the basis of conviction of the co‑accused. In the present case the confession, being retracted and uncorroborated. could neither be used against its maker nor the co‑accused of the maker. In this connection we rely upon the cases of The State v. Minhun alias Gul Hassan (P L D 1964 S C 813), Abdul Haleem v. They State (1984PCr.LJ611), Sharafat Hussain v. The State (1984PCr.L1 1730) and ‑ Nazeer Hussain v. The State (1984 P Cr. L J 2683).

8. There is yet one more important circumstance in this case The perusal of the confession would show that it is virtually exculpatory. Appellant Khan Muhammad, maker of confession, admits his presence at the spot alongwith other appellants but beyond that he does not implicate himself in the other circumstances of the offence and ascribes the fatal role of causing death of deceased Shah Farooq and injuries to the other two females Mst. Shah Johan and Mst. Shah Pari to appellants Abdul Baqi and Saifullah, The learned counsel for the State has urged that in so for as the factum of presence at the spot is concerned, that part of the confession is inculpatory and this circumstance should be taken as participation of the maker in the other offences committed by co‑accused. We have given serious consideration to this argument but we cannot agree with the learned counsel for the simple reason that appellant Khan Muhammad has shifted the burden of the more serious offence toward his co‑accused and has shown only, his presence without committing any offence. The confession is, therefore, exculpatory and it cannot relied upon to maintain conviction of the other appellants. In this connection we would refer to the cases of Dost Muhammad and another v. The State (P L D 1971 Pesh. 41) and Qazi Parvaiz Iqbal and 2 others v, The State (P L D 1976 Kar. 583).

. 9. No doubt a confession, which is proved to be true and voluntary, can form basis of conviction of the maker thereof. But being a false:, uncorroborated, involuntary and retracted confession in the present case, it can neither be used against its maker nor against his co accused.

10. The net result of the above discussion is that we would accept all the four aforesaid appeals and acquit all the four appellants. The L appellants shall be set at liberty forthwith, if not required in any other case The murder reference is rejected. The notice for enhancement of sentence of appellants Khuda‑i‑Mir, Saifullah and Khan Muhammad is also discharged.

11. The above are the reasons for our short order of even date.

M. Y. H. . Appeals accepted.

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