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Criminal Appeal No. 19 of 1985, decided on 2nd September,1985.

‑‑‑S. 304, Part I‑‑Criminal Procedure Code (V .of 1898), Ss. 35, 40 a 164‑‑Evidence Act (I of 1872), S. 24‑‑Notification No. 13/21‑Judl. (II)/63, dated 4th June, 1964‑‑Confession, recording of Jurisdiction of. Naib‑Tehsildar for recording confession under S. 164, Cr.P.C., held, was not limited for offences falling in places of his sub‑Tehsil.

--‑‑S. 304, Part I‑‑Evidence Act (I of 1872), S. 24‑‑Confession by accused of tender age‑‑Admissibility‑‑Although no special procedure was provided to record confession of person of tender age, yet a Magistrate recording confession of such person had to be very careful and cautious to exclude even slightest possibility of extracting confession from such person by threat or undue influence or coercion on account of his tender age‑‑Police in such position should produce such accused before a Magistrate of 1st class‑‑Non‑production of accused of tender ages before 1st Class Magistrate, held, was exceptionable as it created strong doubt in mind which badly reflects upon credibility of confessions.

‑‑‑Ss. 161 & 164‑‑Penal Code (XLV of 1860), S. 304, Part I‑‑Statement of accused recorded by Police under S. 161, Criminal Procedure Code, and that recorded by Magistrate under S. 164, Cr.P.C. more or less in same sequence and contained same words and phrases, which in ordinary course was not possible unless copied from each other or referred to at time of recording‑‑Possibility of fact that statement under S. 161, Cr.P.C. recorded by Police were before Magistrate when he recorded a confession of accused not ruled out‑‑Evidence of last seen also very shaky, unreliable and untrustworthy to base conviction of accused‑‑Confession made by accused involuntary and contradicting each other regarding time of incident, inflicting injuries on person of deceased and mode of production of their weapons and also inconsistent with prosecution case and complainant and witnesses giving a different story‑‑Visible inconsistency existing between confession and medical evidence‑‑Medical evidence belying prosecution version regarding time of incident‑‑Such inconsistency, held, was sufficient to destroy base of prosecution case as a whole and to demolish its full structure‑ Conviction and sentence of accused set aside in circumstances.

1984 P Cr. L J 611‑1011‑571; 1981 P Cr. L J 844‑756; P L D 1974 Lah. 256; P L D 1975 S C 607;1982 N L R Cr. Case (S C) 8; PLD 1966 S C 413 and 1981 P Cr. L.J. 118 ref.

Azizullah Memon for Appellants.

Muhammad Yousuf Ch., Asstt.A.‑G for the State.

Date of hearing: 17th August, 1985.

This appeal under section 410 of the Code of Criminal Procedure is directed against the Judgment, dated 21st May, 1985 of the learned Sessions Judge Sibi‑Division, Sibi whereby the both appellants were convicted and sentenced' each of them to undergo R.I. for 7 years and to‑pay fine of Rs.2,500 or in default to suffer R.I. for 6 months more.

2. The facts giving rise to this appeal are that on 14th May, 1980 at 3‑30 p.m. Bhadur Khan lodged the F.I.R. at the Police Station Jhatpat in the words as follows:‑

Since two years I am working as cultivator of Haibat Khan and reside in village Toor alongwith other family members. My nephew Barkat Ali and brother‑in‑law Dhani Bux aged doubt 11/12 years alongwith their parents also reside there. Today at about 8 a.m. as usual they both had gone to graze their cattle in Jungle in East of village near brick‑kiln at about 3.00 p.m. I was in my house, Shahbaz Khan was also there when Barkat Ali came running and informed me that about 2.45 p.m. when he alongwith Dhani Bux was grazing their cattle near watercourse of Nazar Khan near brick‑kiln suddenly Qaiser son of Ghulam anal Sarwar by caste Dharphalis related inter se emerged out from watercourse of Nazar Khan, both of them had hatchets, they tried to catch hold of us, I escaped but they got hold of Dhani Bux. After covering a short distance I looked back 'and noticed that both of them were giving hatchet blows to Dhani Bux. On hearing the news I, Shahbaz and Barkat Ali went to the spot and found the dead body of Dhani Bux lying in pool of blood near' the watercourse. He had hatchet injuries on his head and his thumb of left hand was also severed and lying there. A little distance from there we saw Qaiser and Ghulam Sarwar running towards Jacobabad side. The dead body of Dhani Bux is lying at the Vardat. The motive for his murder is that about 8 months prior to the incident, Rehmatullah who is my nephew, brother of Barkat All. true maternal‑uncle of deceased Dhani Bux and Allah Dinno maternal‑uncle of Barkat Ali were accused of killing of Allah Dino brother of Qaiser, and the case is pending before the Court of Sessions Judge, Sibi. To avenge the murder Qaiser and Ghulam Sarwar with intention of killing Dhani Bux give him hatchet blows and were seen running from the spot."

3. The S.H.O. Muhammad Nawaz after recording the F.I.R. carried out the investigation of the case, Qaiser and Sarwar were arrested by the police but later on were discharged under section 63 of the Criminal Procedure Code. Amanullah was arrested on 25th May, 1980 whereas Liaquat was arrested on 29th May, 1980, Both of them were produced before the P.W. 9 Inam‑ul‑Haq, Naib‑Tehsildar, Tamboo for recording their confessional statements. The confession of Amanullah was recorded on 26th May, 1980. It reads as under:‑

"I alongwith my parents live in village Bhatian, Tehsil Jhatpat. I graze my buffalos. It happened about 12/13 days back. I do not exactly remember the date. I had taken my buffalos for grazing in the jungle. During grazing Liaquat son of Shafi Muhammad Rind and Tando son of Shahbaz Rind met me on the way. Our cattle was grazing together At a little distance from Goth Bhatian we sat together at one place. A little thereafter Khairo Jatt and Peero Marri while grazing their cattle also passed near us. While taunting at each other, Liaquat Rind and Tando Rind started exchange of bad names and even they went a little ahead. I intervened and ended the quarrel. Tando left us and went away. He did not return even after long time. I and Liaquat left towards our animals where we found that Tando was committing sexual intercourse with a she‑buffalo. On seeing it we challenged him. He started running and stood in a watercourse and started abusing at us on mother ad sister. We asked him to stop but he did not. We were enraged' on it. We went towards him. I had hatchet in my hand and so had Liaquat. Liaquat gave first blow on his shoulder and second on his left hand whereby .his left thumb was severed and his little finger was injured. I gave him three or four hatchets blows on his head which he received on his back and head. Liaquat gave him blow near his ears. Tando succumbed to the injuries. After killing him we ran towards jungle. A long distance from there towards East we concealed our hatchets in jungle. Afterwards we returned to our houses. Our clothes were blood‑stained which we got washed. On inquiry from our parents we disclosed that on account of slaughtering an ailing goat our clothes received stains of blood. On that day I took some money from my house and I left for Jacobabad, where I informed my uncle Dinna about the incident. He advised me to run away. I left towards Shikarpur to my maternal‑uncle Noor‑ud‑Din. After four or five days when I heard that the case was not' registered against us I came back to Jhatpat. Thereafter I met Liaquat. Liaquat told me that he had taken his hatchet from the jungle and my hatchet was lying there. I told him that it matters not much. Let my hatchet remains there. Then I left towards my uncle Abdul Majid at Jhudhair. My father‑in‑law also resides there. I narrated him the story. He told me that I had committed mistake. We should have not killed him. Police came there and took me to Jhatpat. I disclosed the full facts to police. I showed the place of Wardat and the place where I had concealed my hatchet. I confessed my guilt. We had killed Tando because he had committed sexual intercourse with my she‑buffalos and gave us bad names. We committed, his murder on account of provocation. I confess my guilt."

The confession of Liaquat was recorded on 3‑6‑1980. It reads as under:

"I reside with my parents in village Bhatian near Jhatpat. I graze my goats. The incident took place about 20 or 21 days back. I do not remember the exact date. In the morning time I had taken my goats for grazing towards the jungle. Amanullah alias Ma'roo and Dhani Bux alias Tando met me on the way. They also grazed their own cattle near brick‑kiln in the jungle. We sat together at a place. Our cattle were grazing in the jungle. A little thereafter, Peero Marri and Khairoo Jat also passed near and found us sitting there. After some time Dhani Bux alias Tando went to look after his cattle. We went to see him later on. At a little distance we found Dhani Bux alias Tando committing sexual intercourse with our she‑buffalo. On seeing it we challenged him who got up and ran aside and stood inside watercourse and started giving us bad names on mother and sister. We tried to stop him but he did not. We told him that he had committed sexual intercourse with she‑buffalo and then he was abusing us. We were highly enraged. We went towards him. We had hatchets. As we reached near him Amanullah started giving him hatchet blows which he received on his head. I also gave him hatchet blows near his ears and shoulders. He received one‑third blow on his thumb and little finger. On account of my hatchet injury his thumb was severed from his left hand.

After the incident due to fear, I and Amanullah alongwith our cattle went towards Eastern side. We concealed our hatchets beneath a tree. Then we left for our houses. Our clothes were blood‑stained. We got it washed through our mothers. We disclosed that on slaughtering an ailing goat our clothes got blood‑stains. When in his murder Kaiser and Sarwar were involved. We took our hatchets from the tree and hid in our houses. When police examined me I disclosed the true facts. We produced our weapons of crime. We led to the place of incident and the place where we had hidden our hatchets and the spot where we committed murder of Dhani Bux. Dhani Bux alias Tando is my relative. Because of committing sexual intercourse with animal and for throwing bad names I and Amanullah killed him. We did it on account of provocation. I admit murder of Dhani Bux alias. Tando. Dhani Bux died from my hands and that of Amanullah."

It is alleged that both of them pointed out the place of incident, and also led to recoveries of their blood‑stained clothes and crime weapons. These articles were sent to Chemical Examiner for examination and his report is as under:‑

"Description of articles contained in the parcel.

(1) Earth ‑‑ ‑‑ ‑‑ Parcel No. 1

(2) Sindhi Cap ‑‑ ‑‑ ‑‑ Parcel No. 2

(3) Printed shirt ‑‑ ‑‑ ‑‑ Parcel No. 3

(4) Checked Godh ‑‑ ‑‑ ‑‑ Parcel No. 3

(5) Hatchet with handle ‑‑ ‑‑ ‑‑ Parcel No. 5

(6) Hatchet with handle ‑‑ ‑‑ ‑‑ Parcel No. 4

Result of Chemical Analysis.

Articles Nos. 1 to 4 and 6 noted above are stained with blood. The blood stains on article No. 5 noted above is disintegrated and its origin cannot be determined.

:‑

Articles Nos. 1 to 4 and 6 ... Group "AB"."

4. The appellants were challaned to face trial for offence under section 302/34 by the Police before the Court of Sessions Judge, Sibi. Charge for offence under section 302 read with section 34; P.P.C. was framed against them who did not plead guilty to then charge and claimed their trial.

5. In support of its case the prosecution has examined P/W. 1 Dr. Basheer Ahmad, P.W. 2 Shah Nawaz, P.W. 3 Shahbaz, P.W. 4 Khair Muhammad, P.W. 5 Paryo, P.W. 6 Barkat Ali, P.W. 7. Hafiz Ahmad S.I.P. P.W. 8 Abdul Ghafoor. Head Constable. P.W. 9 Inamul Haq Naib‑Tehsildar P.W. 19 Bahawal Khan, P.W. 11 Muhammad Yaqoob. Their evidence is as under:‑

"P.W. 1. Dr. Basheer Ahmad

On 14‑5‑1980 I was M.O., Jhatpat when I received the dead body of Dhani Bux son of Shahbaz aged about 12 years from P.S. Jhatpat for post‑mortem examination at about 10.00 a.m. through Muhammad Islam F.C. The body was identified by Shah Nawaz uncle of deceased. It was of a male, Muslim. It was cold. Rigor Mortis was present. P.M. inventory was also present. I started P.M. examination at 10.00 a.m. and finished at 12 noon on the same day. On my external examination I found the following injuries:‑--

(1) A lacerated wound 6" x 3" on the right Auxillery bone before the left ear. There was fracture of bone. The injury was irregular in shape.

(2) An incised wound on the occipital region. Mendible bone was fractured. The margins were everted. Brain matter was coming out from the wounds 3 " x 1 " x ".

(3) A verticle incised wound on the occipital bone, margins were lacerated everted. It was brain deep 2 " x ".

(4) An incised wound below the injury No. 3 on the occipital bone. There were clean margins. It was brain deep. The brain was coming out from the wound. It was 5" x 1 " x 6".

(5) A lacerated wound and amputation of left thumb middle 1/3. It was irregular margins and everted. It was 1 " x 2" x

On internal examination I found the skull fractured. Verbates lacerated and occipital and front region bone were fractured. The membrane was also lacerated. The rest of the internal organs except blood vessels were normal.

From external as well ‑as internal examination of the dead body I am of the opinion that cause of death was shock and haemorrhage due to above injuries which were ante‑mortem in nature and appeared to have been caused by some sharp cutting weapon like hatchet. Injuries Nos. 1 to 4 were individually sufficient to cause death in. ordinary course of nature. The death must have been instantaneous. Time between death and P.M. examination about 10 to 14 hours. Time between death and last meal taken about 4 hours. I issued such report which I produce Exh. 5. It is same, correct and bears my signature."

P. W. 2.

Name: Shah Nawaz

I know complainant Bahawal Khan. I also knew Dhani Bux and Barkat. Dhani Bux was murdered about one year back. Dhani Bux was son of my brother Shahbaz. It was at the SHRINE where I am beggar when a small girl aged 3 or 4 years came running. She informed me that Dhani Bux was murdered. I went to the house of Bahawal and from there to Wardat. The dead body of Dhani Bux was lying there. Nobody was there. Shafi Muhammad was standing there. He informed us that Qa1sar Dharpali and Sarho have killed Dhani Bux and they were gong away: Bahawal lodged report with police. I know the present accused. They are the real culprits. In fact Shafi Muhammad misguided us. Polite examined me."

P. W. 3.

Name:‑ Shahbaz

I know the present accused. Deceased Dhani Bux was my son. He was grazier. About 13 or 14 months back he was murdered. I was at D.M Jamali when in the evening I came to know about the murder of Dhani Bux. I came to my house at Jhatpat. I saw the dead body in my house. The accused have committed murder of my son Dhani Bux. The relatives of accused had approached me for FAISLA. Police examined me."

P.W. 4. Khair Muhammad.

"I know P.W. Barkat Ali. I knew deceased Dhani Bux. They were Brazier. About one year back Dhani Bux was murdered. I was grazing cattle on that day. Accused Amanullah and Liaquat are also grazier. On the day of incident complainant inquired from me about Dhani Bux and I told him that I saw him standing with the present accused I know nothing about the incident. Police examined."

P.W. 5. Paryo.

"I know the present accused. I also knew deceased Dhani Bux. They are all graziers like me. Dhani Bux was murdered about one year back. On the day of incident at 12 noon I was sleeping near the gate of railway crossing when P.W. Barkat came to me. He informed me that his cattle reached to the house but Dhani Bux was missing. I showed my ignorance about him. After a short while the dead body of Dhani Bux was found. Police examined me."

P.W. 6 Barkat Ali.

"I know Dhani Bux He was murdered about one year or two years back. I only saw his dead body. I do not know who killed him."

"On 14‑5‑1980 the S.H.O. inspected Wardat in my presence. Such Mashirnama was prepared. I produce it Exh. 12. It is same, correct and bears my signature. The police officer secured blood‑stained earth from the Wardat which was sealed on the spot. Such memo. was prepared. t produce it Exh. 13. It is same, correct and bears my signature. The police officer also secured one Baluchi cap from the Wardat. Such memo. was prepared. I produce it Exh. 14. It is same, correct and bears my signature. It was also sealed on the spot. The blood‑stained clothes of deceased Dhani Bux were secured after post- mortem examination. They were sealed on the spot. Such memo was prepared. I produce it Exh 15. It is same, correct and bears my signature. Accused Amanullah did not lep‑d us to Wardat in this case. I produce the Mashirnama Exh. 16. It bears my signature but contents are not correct. The police officer did not secure blood‑stained washed clothes of accused Amanullah in my presence. Again says they were secured from house. Such memo. was prepared. I produce it Exh. 17. It is same, correct and bears my signature. Accused Amanullah in Court is same. I see blood‑stained earth Article "A" in Court. It is same. Note:‑ Seal opened in Court. I see Baluchi cap Article "B" in Court. It is same. Note:‑ Seal opened in Court. I see clothes of deceased Dhani Bux Article "C". They are same. Note:‑ Seal opened in Court. I see clothes of accused Amanullah in Court. They are same Article "D". Note:‑ They were lying loose and not in sealed parcel."

P.W. 8. Abdul Ghafoor.

"On 29‑5‑1980 accused Liaquat Ali while in custody pointed me the place of Wardat to S.H.O. Such memo. was prepared. I produce it Exh. 19. It is same, correct and bears my signature. He then produced one shirt and one trouser before S.H.O. from his house. They were blood‑stained. Such Mashirnama was prepared. I produce it Exh. 20. It is same, correct and bears my signature. Both the accused then produced blood‑stained hatchet from the house of accused Liaquat. They were secured and such Mashirnama prepared. I produce it Exh. 21. It is same, correct and bears my signature. I see clothes of accused Liaquat Article "E". They are same. I see hatchets Articles F" and "G". Note:‑ Seals were opened in Court. Article "E" were not sealed. Accused in Court are same."

P.W. 9 Inamul Hag:

"I was posted as Naib‑Tehsildar Tamboo on 3‑6‑1980. The accused Liaquat was produced before me on 3‑6‑1980 for recording his confessional statement under section 164, Cr.P.C. I was Magistrate 2nd Class at that time. We were specially empowered to record confessional statement under section 164, Cr.P.C. I told the accused that I was Magistrate and that he was produced before me for recording his confessional statement. I had further told him that he was not bound to make confessional statement and the statement if made could be used against him. I put the necessary question and recorded the reply of the accused. After satisfying myself that the statement of the accused was voluntarily, I proceeded to record the statement. The statement of the accused is Exh. 23 which bears my signature and thumb‑impression of the accused. I also appended necessary certificate which is Exh. 23‑A and bear my signature. On 26‑5‑1980 the accused Amanullah was produced before me for recording the confessional statement. I had also told the accused that I was Magistrate and that he had been produced before me for recording his confessional statement. I had further told him that he was not bound to make the confessional statement and that if the statement was made it could be used against him. I had also put necessary questions to him and recorded his replies. After satisfying myself that the statement of the accused was voluntarily, I proceeded to record the statement. The statement is Exh. 24 which bears my signature and signature of the accused. I also appended certificate to the statement which is Exh. 24‑A. The certificate bears my signature. The accused are present in the Court."

P.W. 10. Muhammad Yaqoob:

"I was S.H.O. Jhatpat on 31‑5‑1981. On receipt of Chemcial Examiner's report I submitted the final challan of the case. (The final challan including the Chemical Examiner's report is not on record. The office to report the matter. The witness is not discharged)."

Re‑called and re‑affirmed:

I produce the Chemical Examiner's report. The report is Exh. 25. Raja Muhammad Nawaz and Abdul Manan have since died. I identify their signatures."

P.W. 11. Bahawal:

"The deceased Dhani Bux was son of my daughter. He has been murdered about 3/4 years back. I was at my house. The deceased Dhani Bux had gone to graze cattle. He did not return in the evening on the day of incident. The accused informed me that the deceased was killed by DHARPALIS. I went to search the deceased and fond the dead body lying near the NULLA of Nazar Khan. He had hatchet injuries. I then went to lodge the report at P.S. Jhatpat. Again said that I had not lodged the report at Jhatpat Police Station (voluntarily) said that I had remained sitting at the dead body and that Shah Nawaz had lodged the report."

6. In. their 342, Cr.P.C. statements the appellants disputed allegations levelled against them and retracted from their confessions. No witness in defence was examined. On 21st May, 1985 the learned Sessions Judge, Sibi was pleased to convict them for the offence under section 30, Part‑I, P.P.C. and sentenced them as shown hereinabove.

7. Being aggrieved against their conviction and sentences the appellants have filed this appeal before this Court.

8. Mr. Azizullah Memon assisted with Mr. Azizullah appeared for the appellants whereas the learned Assistant Advocate‑General Mr. Muhammad Yousuf Chaudhary represented the State.

9. The learned Sessions Judge formulated the following points for determination of the case:‑

(a) Whether the deceased Dhani Bux son of Shahbaz met with a violent death

(b) Whether the accused or any one of them intentionally caused the death of the deceased

(c) What offence if any is made out

10. The learned Sessions Judge found the following pieces of evidence against them:‑

(a) Medcial evidence.

(b) Circumstantial evidence i.e. the deceased was last seen with the accused persons, recoveries of blood‑stained clothes of the accused, recoveries of hatchets and the pointation of the place of incident by the accused.

(c) Confessional statements of both the accused recorded by the Naib‑Tehsildar and 2nd Class Magistrate, Tamboo under section 164, Cr.P.C.

11. The recoveries of the blood‑stained clothes, crime weapons from the appellants were not believed by the learned Sessions Judge in the words.

"There is no evidence of the police officer who affected the alleged recovery. There is nothing on record as to why independent witnesses were not associated with the alleged recovery. Under the circumstances the alleged recovery of blood stained clothes of the accused from his house cannot be believed."

"The alleged recoveries under the circumstances have not been substantiated. Similarly it is difficult to believe the version of H.C. Abdul Ghafoor that the accused after his arrest led the police to the Jai Wardat and pointed out the place of incident. Since the alleged recoveries of blood‑stained clothes of the accused and the hatchets have not been believed. The report if the Chemical Examiner Exh. 25 is also of no avail to the prosecution in this case."

However the learned Sessions Judge relied upon the retracted confessions of the appellants as follows:‑

"The confessions have been retracted. However it is well- established law that retracted confession is believed to be voluntary and true can form the basis of conviction without any corroboration. In the case in hand the only corroboration available is the testimony of P.W. Khair Muhammad. In the confessional statements, it has been stated by both the accused that P.Ws. Paria and Khair Muhammad had seen them with the deceased before the incident. P.W. Khair Muhammad has corroborated the version. Even otherwise as has been observed the retracted confessions if believed to be voluntary and true can form the basis of conviction without any corroboration. The confessional statements in the case have been adjudged to be voluntarily made and had been believed to be true. The deceased was aged about 12 years. The accused at the relevant time were also about 14/15 years of age. There is no suggestion anywhere in record that any previous ill‑feeling existed between the accused and the deceased. The incident under the circumstances was not premeditated. The confession when believed is to be taken as a whole. The confession show that the unfortunate incident happened in heat of passion on account of grave and sudden provocation. The accused under the circumstances are liable for culpable homicide not amounting to murder punishable under section 304, Part I, P.P.C."

12. According to the learned Sessions Judge the deceased died of injuries suffered by him and thus met with a violent death. His finding on the point No. 2 was also in affirmative and whereby he held the appellants to have committed offence under section 304, Part I.

13. Mr. Azizullah Memon, the learned counsel for the appellants in support of the appeal has taken the following grounds:‑

(i) That under section 37 the Naib‑Tehsildars of Kalat District by virtue of their office were authorized to exercise power under section 164, Cr.P.C. in places shown in the Notification but not beyond their own jurisdiction. He urged that thereby the Naib‑Tehsildar of Tamboo was empowered to exercise powers under section 164, Cr.P.C. in respect of offences in Sub‑Tehsil Tamboo only.

(ii) That the confessions were neither proved nor voluntarily or true.

(iii) The prosecution case was false, absurd and unbelievable.

(iv) That prosecution evidence was false, contradictory and unreliable.

14. In support of his contentions the learned‑counsel relied upon:‑

(i) 1984 P Cr. L J 611‑1011‑571.

(ii) 1981 P Cr. L J 844‑758.

15. Mr. Muhammad Yousuf Chaudhary, the learned Asstt.A.‑G. for the State submitted‑‑

(i) that in view of section 40, Cr.P.C. the Naib‑Tehsildar, Tamboo had the authority to record confession even beyond his own jurisdiction.

(ii) Confessions were voluntarily true and sufficient for conviction. (iii) Prosecution story was true and natural.

(iv) The witnesses were natural, independent and reliable.

16. In support of his contention he relied upon:‑

(i) P L D 1974 Lah. 256.

(ii) P L D 1975 S C 607.

(iii) 1982 N.R.Cr. Case S C 8.

(iv) P L D 1966 S C 413.

(v) 1981 P Cr. L J 118.

17. In support of his first contention the learned counsel invited my attention to the Notification, dated 4‑6‑1964 empowering Naib Tehsildar to record confession under section 164, Cr.P.C. It would be profitable to reproduce the same for convenience sake:‑

"No. 13/21‑Judl: (II)/63. In exercise of the powers conferred by section 37 of the Code of Criminal Procedure, 1868, the Governor of West Pakistan is pleased to invest the following Naib‑Tehsildars of Kalat District with the following additional powers being the powers as specified in the Fourth Schedule to the said Code by virtue of their offices for the places shown against each:‑

(1) Naib‑Tehsildar, Surab.

(2) Naib‑Tehsildar, Wadh.

(3) Naib‑Tehsildar, Moola.

(4) Naib‑Tehsildar, Zahri.

(5) Naib‑Tehsildar, Mashkhail.

(6) Naib‑Tehsildar, Karkh Powers under sections

(7) Naib‑Tehsildar, Mirpur. 164, Cr.P.C. and 167,

Cr.P. C.

(8) Naib‑Tehsildar, Jhall.

(9) Naib‑Tehsildar, Tamboo

(10) Naib‑Tehsildar, Sunni.

(11) Naib‑Tehsildar, Balanari.

(12) Naib‑Tehsildar, Chattar.

He particularly drew my attention to the wording of the Notification that the Naib‑Tehsildars by virtue of their offices to exercise the powers for the place shown against leach. The learned counsel emphasised of the word 'THE PLACES SHOWN AGAINST EACH'.

18. According to the learned counsel the jurisdiction of the Naib Tehsildar for recording confession under section 164, Cr.P.C. was limited for offences falling in places of Sub‑Tehsil Tamboo only and not beyond that.

19. On the other hand the learned Asstt.A.‑G. submitted that under section 40 of Criminal Procedure Code the Magistrate had the general power to record confessions of persons even beyond his own jurisdiction.

In order to appreciate the effect of section 40; it would be useful to reproduce it:‑--

"40. Powers of officers appointed. ‑‑Whenever any person holding an office in the service of Government who has been invested with any powers under this Code throughout any local area is appointed to an equal or higher officer of the same nature, within a like local area under the same Provincial Government, he shall unless the Provincial Government, otherwise directs, or has otherwise directed, exercise the same powers in the local area in which he is so appointed."

This section has no relevancy with the point in issue.

20. However, even the notification referred to hereinabove by the learned counsel for the appellants also in no way lends support to his contention. Except placing reliance upon the notification no other law to support his contention has been relied upon or cited.

21. It seems that the learned counsel has mainly placed his reliance upon the import of the word "place" of the above‑said notification which in fact neither supports his case nor serves his purpose. The notification in that context is quite unambiguous and needs no further elucidation. In such situation I am not inclined to agree with his contention that the Naib‑Tehsildar Tamboo had no jurisdiction to record g confessions of the appellants. His objection in that respect is repelled accordingly.

22. Then the learned counsel for the appellants very seriously criticised the genuineness and voluntariness of the confessions and submitted that the‑learned Sessions Judge had erroneously held them to be true and voluntary ones and solely based conviction of the appellant thereon. To support his contention he firstly argued that both the appellants were of tender age hence possibility of extracting confessions from them by promise‑pressure or coercion could not be ruled out. To support his contention he referred to authority reported in 1984 ‑P Cr. L J 611 and 1011. which reads as under:‑

"Accused, hardly 141 years of age on day of occurrence‑ Confession‑‑Accused of such age could easily be duped to give statement as was tutored to him by police‑‑Magistrate, in such case, had to be extra‑cautious in recording confession‑‑Magistrate to make sure that accused had given confessional statement under absolute freedom without any pressure or coercion having been brought to bear upon him for giving such statement‑‑No other evidence against accused available‑‑Such confession not safe to rely upon."

"Confession‑‑Age of witness at time of recording statement under 5.164, Cr.P.C. about 10/11 years‑‑possibility of having given such statements at instance of investigating agency, held, cannot be ruled out."

23. The learned counsel further contended that the medical evidence relied upon by the prosecution itself regarding the time of incident falsifies the confessions in toto, besides the confessions were not corroborated by independent and reliable evidence. He urged that evidence of last seen relied upon by the learned Sessions Judge was no sufficient corroboration to sustain conviction on confessions. According to him as the evidence of last seen was itself tainted one and it could not had corroborated the tainted confessions.

24. In nutshell the crux of his contentions was that the both confessions were faulty, lacked independent corroboration and were not sufficient to base conviction of the appellants, but the learned Sessions Judge had erroneously treated them to genuine, true and voluntarily and sought for corroboration from evidence of Khairo and convicted the appellants.

25. On the other hand Mr. Muhammad Yousuf, the learned Asstt.A.‑G. for the State vehemently defended the judgment of the learned Sessions Judge and stressed that the confessions were recorded after due care and caution by the learned Magistrate of 2nd Class who was specially empowered by the Provincial Government to record it. To corroborate the confessions he submitted that the learned Magistrate was examined in the trial Court where he was subjected to cross‑examination and material was extracted from him to diminish its value and veracity. The learned Asstt.A.‑G. further explained that the law did not provide any special procedure for recording confessions of persons of tender age than that of persons of mature minds. He emphasized that in the attending circumstances the confessions being true and voluntary were rightly relied upon by the learned Sessions Judge and evidence of last seen was sufficient to corroborate them. In support of his contention the learned Asstt.A.‑G. referred to authorities mentioned hereinabove.

26. It is undisputed fact that at the time of the recording of the confessions the both appellants were of tender age. Though no special procedure under the Criminal Procedure Code is provided to record; confessions of persons of tender age, yet a Magistrate recording their, confessions has to be very careful and cautious to exclude even slightest, possibility of extracting confessions from them by threat or undue influence or coercion on account of their tender ages as persons of such tender age are easily susceptible to such things comparatively than that of person of grown up mind. In such position the police) ought to have produced them before a Magistrate of 1st Class who C evidently must had more judicial experience than that of a Magistrate of 2nd Class. Their non‑production to record their confessions before a Magistrate of 1st Class in the circumstances of the case is exceptionable. It creates strong doubt in the mind which badly reflects upon the credibility of the confessions.

27. Appellants being of tender age the possibility of extracting confessions from them on promise, inducement or coercion could not be ruled out especially when they were produced before a Magistrate of 2nd Class who may not had the sufficient experience to exclude such happening which an experienced Magistrate of 1st Class could have very, successfully precluded.

28. In addition thereto a mere glance at 161, Cr.P.C. statements of the appellants recorded by the police during investigation and their 164, Cr.P.C. statements recorded by the Magistrate unveils that more or less the both statements are in same sequence and contain the same words and phrases which in ordinary course are not possible unless copies from each other or referred to at the time of recording. The possibility of the fact that the 161, Cr.P.C. statements recorded by the police were before the Magistrate when he recorded the confessions of the appellants could not be ruled out.

29. Besides the confessions are contradictory with each other, regarding the time of incident, inflicting injuries on person of deceased: the mode of the production of their weapons. In that respect the F learned counsel for the appellants drew my attention to such contradiction in the 164, Cr.P.C. statements of the appellants. The learned counsel for the appellants at the first instance referred to confessional statement of appellant Amanullah where he has stated:

(i) "About 12/13 days back I do not exactly remember the date I had taken my buffalo.

(ii) Liaquat gave first blow on his shoulder and second on his left hand.

(iii) He had taken his hatchet from the jungle and my hatchet was lying there. I told him that it matters not much.

Then 164, Cr.P.C. statement of the appellant Liaquat where he has said:

(i) The incident took place about 20/21 days back.

(ii) Ibmanullah started giving him hatchets blows which he received on his head.

(iii) We took our hatchets from the tree and hid in our houses.

30. In spite of all that discussed hereinabove on face of it the confessions are even inconsistent with the prosecution case. At the initial stage the complainant Bahadur Khan and witnesses Shah Nawaz, Shah Baz and Barkat Ali had given a quite different story than that disclosed in confessions by the appellants. The witnesses in F.I.R. and 161, Cr.P.C. statement had implicated Qaiser and Sarwar by caste Dharpalis on account of previous enmity. However subsequently the witnesses have resiled from their earlier statements in result whereof Qaiser and Sarwar were discharged under section 63, Cr.P.C. It may be pertinent: to point out that even after recording the confessions of appellants and discharge of the above‑said two persons the police did not bother to cancel the F.I.R. which in fact occupies its field even today and has been produced and relied upon by the prosecution G regarding the time and place of the incident. For that the explanation of the learned Asstt.A.‑G. was that cancellation of the F.I.R. was not necessary as police could have continued the investigation of the case even without it. In addition thereto the learned Asstt.A.‑G. contended that there was nothing wrong if the F.I.R. was not cancelled. In that context he relied upon P L D 1974 Lah. 256. There is no cavel on the proposition enunciated in the above citation in fact the authority is not applicable with the facts of the instant case and it lends no support to the contention advanced by the learned Asstt.A.‑G. However, the facts remain that the initial F.I.R. still remains intact in the field and has been produced in evidence and relied upon as source of information leading to investigation of the case and the day and time of incident. In absence of any other F.I.R. the present F.I.R. shall be presumed to be the prosecution case at the initial stage of the case which moved the taw ,into motion and shall be deemed to be the prosecution version, in absence of any other version to the contrary. Apart thereto there is visible inconsistency in the confessions and the medical evidence.

The medical officer in his statement recorded before the Court of learned trial Judge in unequivocal words has stated that he received the dead‑body of deceased on 14th of May; 1980 at 10 a.m. and he started its post‑mortem there and then. The time between death and post‑mortem was about 10 to 14 hours. Calculating the time according to his statement the incident must had taken place between the late hours of 13th May, and the earlier hours of 14th May. Whereas the appellant Amanullah in his confession has stated:

"It happened about 12/13 days back" And appellant Liaquat has stated:

"The incident took place about 20 or 21 days back."

On the other hand the learned Asstt.A.‑G. for the State termed the above‑said variations of little significance. He abortively tried to explain that these contradictions were quite minor in nature and did not affect the prosecution and particularly the confessions. The explanation on face of it is devoid of force and repelled accordingly.

31. Even the medical evidence also totally belies the prosecution version regarding the time of the incident. According to the prosecution as disclosed in the F.I.R. the incident had taken place on 14th May, 1980 at 2.30 p.m. whereas according to the medical officer it may had taken place either in the late hours of 13th May or earlier hours of 14th May. In addition thereto the time disclosed by the appellants in K their confessions also did not tally with the time given by the prosecution in the F.I.R. The above‑said inconsistencies badly reflects upon the prosecution story which on face renders it false and untrustworthy. Hence I agree with the learned counsel for the appellants that prosecution story is unreliable.

32. In the attending circumstances of the case these inconsistencies discussed hereinabove cannot be ignored so easily as expected by the learned Asstt. A.-G. These inconsistence are of great consequence and sufficient to de-route the base of the prosecution case as a whole and demolish its full structure.

33. In view of the facts and circumstances discussed hereinabove I am of the opinion that the both confessions of the appellants are neither voluntary nor true and no reliance can be placed thereon. Even evidence of last seen does not lend any support to its veracity.

34. Evidence of the last seen by itself is very shaky, unreliable and not trustworthy to base conviction of the appellants. Even the K learned Sessions Judge treated it only as a piece of corroborative evidence to support confessions and not as substantive piece of evidence.

35. The confessions being false and unreliable, evidence of last seen not sufficient and there being no other evidence, the conviction and sentences of appellants cannot be legally sustained which in result are set aside. The appellants are in custody, they may be released forthwith if not required in any other case. .

M.Y.H. Appeal accepted

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