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Criminal Appeal No. 24 of 1984, decided on 27th November, 1985.

---S.24--Confession Whether voluntary or not Attending circumstances, held, must be subjected to very close, minute and rigid scrutiny in order to determine whether a confession was voluntary or not.--[Confession].

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---S. 24--Confession--Probative value--Circumstances considered essential for judging probative value of confession, stated.- [Confession].

Fazlur Rehman v. The State P L D 1960 (W.P.) Pesh. 74 rel.

---S. 24--Confession--Delay in recording confession--In recording a confession, circumstances may justify a brief delay but not a long delay which; if rot explained, invariably leads to inference that all was utilized in extracting a confession from confessor.- [Confession].

------S. 24--Confession--Delay in recording---Unexplained delay of more than twenty-four hours in recording confession--Confession to be excluded from consideration.--[Confession].

Tooh v. The State 1975 P Cr. L J 440 ref.

Shaukat Saeed v. The State P L D 1978 Quetta 1 distinguished.

Nathu v. State of Uttar Pradesh P L D 1956 S C (Ind.) 186 rat.

---S. 304, Part I--Evidence Act (I of 1872), S.24--Trial Court discarding prosecution evidence in regard to offence of murder against accused but relying upon confession of accused which was recorded after sixteen days during which accused was in police custody and which he retracted from in his statement' under S.342, Criminal Procedure Code--Surf: confession not corroborated by any evidence produced and recorded in case nor it was recorded -by a Magistrate having jurisdiction in area where offence was committed and accused was taken miles away for the purpose whereas a Magistrate was available at the very place where accused was under police custody--Investigating Officer failing to produce any evidence to connect accused with murder and it was most probable that accused was tutored or put under coercion to confess murder during police custody for sixteen days and fact that he was taken to another place of recording confession fortifying this probability--Confession not only involuntary but retracted ---Confession excluded from consideration and there being no other evidence to bring home guilt of accused, conviction and sentence set aside.--[Confession].

---S. 24--Confession--Retracted confession--Never to be believed unless corroborated in material particulars.--[Confession].

The State v. Minhun alias Gul Hassan P L D 1964 S C 813 and Nadir Hussain v. The Crown 1969 S C M R 442 rel.

---S. 24--Confession--Retracted confession--Never to be regarded sufficient for conviction and corroboration was required by extraneous independent evidence.--[Confession].

Ahmed Mian Soomro for Appellant.

Muhammad Nawaz Ahmed for the State.

Date of hearing: 27th November, 1985.

Appellant Wali Muhammad alias Nindu has been convicted under section 304, Part II, P.P.C. by the Sessions Judge, Sibi vide judgment, dated 25-10-1984 and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000 or in default of payment of fine to suffer further R.I. for six months and fine if realised had to be paid to the heirs of the deceased as compensation in equal shares. He has come up to this Court by the present appeal.

2. The facts of the case, briefly stated, are that, on 11-10-1981 the appellant Wali Muhammad went to the house of his tenant Hoti in the morning and asked him to go to the fields as it was their turn of water, whereupon Hoti, his son Usman and his two grandsons Sikandar and Sumandar went to the fields Hoti was working in the field when at about 7-00 a.m. Lal Bakhsh alias Gando fired a shot at Hoti with a .12 bore shot-gun with which the latter was injured on the right thigh, whereupon his grandson Sikandar asked Lal Bakhsh as to why he was killing the old man. Simultaneously Lal Bux, who was armed with double barrel shot-gun, Hamza, who was armed with single barrel shot-gun, appellant Wali Muhammad alias Nindu, who was also armed with shot gun and Amir Bux, who was armed with rifle and who were all present there went towards Sikandar and started firing at him. Sikandar was injured and died at the spot. The occurrence had been seen by Usman, Sumandar, Mithoo Khudoo and Gulloo. After the occurrence, all the four accused Lal Bux, Hamza, Wali Muhammad and Amir Bux ran away towards their houses. Subsequently appellant Wali Muhammad also killed his wife Mst. Hani. Hoti went to Police Station Jhatpat and lodged the F.I.R. No. 108/81 at about 10-00 a.m.

3. All the aforesaid four accused were charged by the learned Sessions Judge, Sibi under section 302/307/34, P.P.C. to which they pleaded not guilty and claimed trial. The State produced 11 witnesses in support of the prosecution case. Appellant Wali Muhammad alias Nindoo is alleged to have also made a confession on 26-10-1984. All the four accused in their statements under section 342, Cr.P.C. denied the commission of the offence. The appellant further stated that he was produced before the Naib-Tehsildar, Tamboo at Dera Murad Jamali but he did not make any statement and only his thumb impression was taken on the paper, whereafter he was handed over to the same police which had produced him before the Magistrate. He also denied that he had made any confession. He also denied that he had killed his wife Mst. Hani. The accused did not produce any defence. P.W.1 Hoti, P.W.2 Muhammad Usman, P.W.3 Mst. Bhanal wife of Usman, P.W.4 Mst. Khadija daughter of Usman, P.W.5 Mithoo and P.W.6 Khuda Bakhsh are eye-witnesses of the occurrence. The two female witnesses, P.W.3 Mst. Bhanel and P.W.4 Mst. Khadija, mother and sister respectively of Sikandar deceased, are not mentioned in the F.I.R. and they were examined by the Investigating Officer on 23-10-1981--13 days after the occurrence. The statement of P.W.5 Mithoo would show that he had not actually seen the occurrence, but had heard report of 3/4 gun-shots and then he went to the spot where he saw Sikandar lying dead, Hoti lying injured and all the four accused standing there, having guns with them. Similarly P.W.6 Khuda Bakhsh was also not present at the time of occurrence but he went to the place of incident after hearing 2/3 gun-shot where he saw Sikandar lying dead and many persons present there, out of whom he saw Amir Bakhsh who had one gun and one hatchet with him. The other two eye-witnesses, P.W.1 complainant Hoti and P.W.2 Muhammad Usman, are grandfather and father of deceased Sikandar. During their evidence at the trial they had made so many improvements and material contradictions in their statements under section 161, Cr.P.C. that the learned Sessions Judge discarded them. Actually the learned Sessions Judge did not believe ocular evidence of any witness and for that he had sound reasons P.W.1 complainant Hot and P.W.2 Muhammad Usman had made many material contradictions and improvements their earlier version of the case. P.W.3 Met. Bhanal and P.W.4 Mst. Khadija were not mentioned in the F.I.R. and their statements under section 161, Cr.P.C. were recorded 13 days after the occurrence. P.W.5 Mithoo and P.iY.6 Khuda Bakhsh did not see the occurrence but reached after it had already taken place. As such the learned Sessions Judge had sound reasons not to accept the ocular evidence and to discard the same. The learned trial Judge, therefore, acquitted all the three co-accused of the appellant.

4. However, the learned Sessions Judge has relied upon the alleged confessional statement of the appellant Wali Muhammad. As already stated this confession was recorded 16 days after the appellant was arrested EXh.P/16 is the alleged confessional statement of the appellant. It inter alia states that on the day of occurrence the appellant had come out of his house at sun-rise time, armed with a shot-gun to go for hunting. In the maiz crop nearby he saw his wife Mst. Hani and deceased Sikandar standing and embracing each other. He challenged them whereupon both stated running. He fired 2 shots at Sikandar with which the latter was hit, fell down and died but in the meantime Mst. Hani ran away towards the house. He fired at her but the cartridge did not go off. His wife reached the house, he followed her and gave an axe blow on her neck and she fell down. He gave another axe blow on her neck, she also died. He went to P.S Jhatpat and made the report.

5. It shall be seen that the I.O. had not been able to procure any evidence with regard to the murder of Mst. Hani. The evidence which came before him, was with regard to the alleged murder of Sikardar by the appellant and the acquitted accused. It is, therefore, quite probable that the I.O. may be trying to procure a confession from the appellant. The Investigating Officer, P.W.10 Muhammad Sadiq Abbasi, rearing as a witness in the case, has admitted the appellant has offered to make the confession, on 24-10-1981 but he was busy the hex day, so he produced him before the Magistrate on 26-10-1981, P.W.8 Muhammad Khan, Naib-Tehsildar Tamboo recorded the confessional statement Exh.P./16. He was a Second Class Magistrate. He gave the appellant only 15 minutes for reflection before recording the confession. He did not enquire from the appellant that since when he was in custody. After recording the confessional statement he handed over the appellant to the same police officer for being sent to the juicily custody. This witness was not posted at Jhatpat during the days when he recorded the confession. A Magistrate was available at Jhatpat where the appellant was being held under police custody. In spite of that the appellant was taken to a different place for recording his confession. The appellant in his statement under section 342, Cr.P.C. has denied the making of confession. It is, therefore, a retracted confession.

6. In order to determine whether the confession was voluntary or not the attending circumstances must be subjected to very close, minute and rigid scrutiny. In judging the probative value of a confession the following circumstances were considered to be essential in the case of Fazlur Rehman v. The State P L D 1960 (W.P.) Pesh. 74:-

(i) The character and duration of the custody.

(ii) Whether the confessor was placed in a position to seek the advice of his relatives or his lawyers.

(iii) The nature and quantum of proof which was available against the confessor before he confessed.

(iv) Whether the confession was consistent with the other evidence which was available at the time when the confession was made.

It was further held in this judgment that in the recording of a confession circumstances may justify a brief delay but not a long delay, which if not explained invariably leads one to infer that all time was utilized in extracting a confession from the confessor. In the case of Tooh v. The State 1975 P Cr. L J 440 the confession was recorded on the third day of the arrest of the accused, and it was held by the Sind High Court that the delay of over 24 hours would normally be fatal to the acceptance of a judicial confession and in the circumstances of that case it was ruled out of consideration. However, in the case of Shaukat Saeed v. The' State P L D 1978 Quetta 1 it was held that mere fact of confession having been recorded after 24 hours of detention would not make confession inadmissible and confession could not be ruled out solely on ground of delay except by reference to other evidence attending confession and that every confession was to be considered on its merits in the light of surrounding facts and circumstances. Even the Supreme Court of India in the case of Nethu v. State of Uttar Pradesh PLD 1956 S C (Ind.) 186 has held that prolonged police custody immediately preceding the making of confession is sufficient unless it is properly explained to stamp it as involuntary.

7. It shall thus be seen that where there was any unexplained delay of more than 24 hours in recording the confession, it was not taken into consideration by the superior Courts and there is a general consensus that such a confession should be excluded from consideration. Even in 1978 case of this High Court, although it was held that delay per se in recording-the confession was not always fatal but if there were circumstances which could cast a shadow of doubt on its genuineness then it had to be excluded from consideration. The circumstances of the present case will show that the State had failed to procure any evidence in regard to the murder of Mst. Hani whereas the evidence produced in connection with the murder of Sikandar was not believed by the trial Judge who had acquitted the co-accused of the appellant of the charge for which they were tried. The learned trial Judge also discarded the prosecution evidence in regard to both the murders as against the appellant but relied upon the confession Exh.P/16. However, it shall be seen that this confession was not only recorded after 16 days during which the appellant was in police custody but he had also retracted therefrom in his statement under section 342, Cr.P.C. The additional fact is that this confession also does not find any corroboration from the evidence produced and recorded in the case. A further circumstances going against the genuineness of this confession is that it was recorded by a Magistrate who had no jurisdiction in the area where the offence was committed and the appellant was taken miles away for this purpose whereas a Magistrate was available at the very place where the appellant was under police custody.

8. It shall thus, be seen that this confession was not only involuntary but was also retracted. In so for as such retracted confessions are concerned, they were never believed unless corroborated in material particulars and in support of this contention we rely upon the case of State v. Minhan alias Gul Hassan P L D 1964 S C 813 and Nadir Hussain v. The Crown 1969 S C M R 442. It was further held, in the aforesaid Peshawar case that a retracted confession was never regarded sufficient for conviction and it required corroboration by extraneous IH independent evidence.

9. From the above discussion we are of the firm opinion that the appellant had not made the confession voluntarily. The Investigating Officer had failed to procure any evidence to connect the appellant With the murder of his wife Mst. Hani and it is most probable that the appellant was being tortured or was put under coercion to confess the Z said murder. His custody under police for 16 days would show beyond any reasonable doubt that he was under constant pressure from police to confess his guilt. The fact that he was taken to another place for recording the confession which was recorded by a Naib-Tehsildar and Second Class Magistrate would further fortify our opinion. We would, therefore, exclude the confession from consideration. There being no other evidence to bring home the guilt of the appellant, we would accept this appeal, set aside the conviction and sentence of the appellant and acquit him, the charge for which he was tried and convicted. He is on bail. His bail bonds are also discharged.

We had accepted this appeal vide our short order of even date and aforesaid are the reasons therefor.

M.Y.H. Appeal allowed.

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