DHANI BAKHSH Versus THE STATE

MUHAMMAD AFZAL CHEEMA, J .‑Dhani Bakhsh appellant and his ,co‑accused Phatoo were tried and convicted by the learned Sessions Judge Tharparkar at Mirpurkhas for offences of robbery and murder. They were awarded capital punishment under section 302/34, P. P. C. Dhani Bakhsh was sentence d to seven years' R. I. under section 392/397, P. P. C. while his co‑accused Phatoo was awarded four years' R. I. under section 392, P. P. C. In addition to this, the appellant was also convicted under section 13(d) of the Arms Ordinance with an award of two years' R. I. The sentences of imprisonment were of course to take effect only in the event of non -confirmation of the sentences of death. In appeal/reference, a D. B. of the Sind & Baluchistan High Court acquitted Phatoo finding him entitled to benefit of doubt but maintained the conviction of the appellant based on judicial confession adequately corroborated by the recovery of a wrist‑watch, and a revolver found to be wedded to the crime empties recovered from the scene of the offence.

2. Leave was granted by this Court to consider the contention that the judicial confession of the appellant was recorded in the presence of the petitioner's co‑accused and was, therefore, tainted, that the identity of the recovered wrist‑watch allegedly worn by the deceased at the time of murder was not established beyond doubt, and that the recovery of the revolver "found by the Ballistic Expert to have been used in the commission of the crime could not be attributed to the appellant by satisfactory evidence. In the absence of ocular testimony the evidence of the solitary eye‑witness having been excluded by the High Court, a re‑appraisal of the entire evidence was considered necessary.

3. Lali complainant and Salamo deceased brother of his sister's husband, both residents of village Jhurbi, Police Station, Mirpurkhas used to purchase milk from the village and sell it in Mirpurkhas. On 26‑5‑1968, at about sunset time, both left Mirpurkhas after having delivered milk, carrying empty cans on their cycles. Lali had a sum of Rs. 10 with him as the day's sale proceeds. On the way, the cycle of Lali got punctured. Having spent sometime in mending the puncture and washing milk pots, they again started. As they reached Jhurbi Bridge of Jamrao Canal 1 miles short of village Jhurbi, at about 8‑30 p.m. they saw two persons sitting on the bridge. One of them flashed a torch at them. They told them to stop, and a shot was fired in air. They ordered them to surrender whatever they had. At this, Lali threw a ten‑rupee note towards them while Salamo deceased who had no money with him threw his wristwatch and the note book containing milk account. According to the police report lodged by Lati, one of the robbers proceeded towards him and put the revolver on his chest while the other abused Salamo telling them to surrender whatever remained with them. They told them that they had nothing more to part with at which one of the robbers gave 2/3 fist blows to Lali who fell down. In the meantime, three shots were fired in succession when Salamo cried that he was killed. Lali lost his senses on account of fear. After sometime, he stood up and going near Salamo found him dead with a wound in the chest. He ran to the village raising an alarm which attracted Luqman (P. W. 6) Zamindar and a B. D. Member and some others. They accompanied Lali 'to the scene of the crime and found him lying dead. Luqman then accompanied Lali to the Police Station, Mirpurkhas, six miles away where the latter lodged the report with Talib Hussain, A. S. I. In his report, the only description of the robbers given by Lali was that they were well built, wearing black clothes and black turbans, appeared Sindhis from their talk and that having seen them in the torch light, he would be able to identify them. The A. S. I. immediately repaired to the spot and spent the night there. It appears that some abortive attempts were also made to trace the foot‑prints during the night. In the morning, however, the police prepared the inquest report and despatched the dead body, to the mortuary, recovered from the scene of the crime blood‑stained earth, two cycles and five empty milk‑cans, four empty cartridges of revolver and a pair or slippers of the deceased. With the help of Karim Bakbsh, tracker (P. W. 10) attempts were made to follow the outgoing foot‑prints of the culprits but they were lost at a short distance. However, the incoming foot‑prints were followed up to a. hutment in village Langhani about three miles from the scene of the crime. On 28‑5‑1968, the A. S. I. on receipt of secret information raided a Saw Mill on Sindhri Road, Mirpurkhas and found the appellant and the acquitted accused standing on the road, the former carrying a bundle which was found to contain a torch, a citizen wrist‑watch with black strap and some clothes which were taken into possession. While in custody, the two accused separately led the Police Party to Kahoo‑jo‑Daro and taking them through the sand‑dunes pointed out in turn a place from where a. revolver containing five rounds was dug out from the ground. On the following day, both the accused were produced before Mr. Hidayatullah, F. C. M., Mirpurkhas (P. W. 5) for recording their judicial confessions. Having observed the necessary formalities in this regard, the Magistrate recorded the statement of Phatoo, the acquitted accused in the first instance, while Dhani Bakhsh appellant was kept sitting in a corner of the Court Room. Having finished with it he then recorded the statement of the appellant of course after observance of the necessary formalities. Having admitted his presence as well as that of Dhani Bakhsh at the Jhurbi Bridge at the relevant time, Phatoo rather cleverly tried to exculpate himself and, shifted the entire responsibility of flashing the torch, firing the shots and collecting the money and the wrist‑watch on Dhani Bakhsh appellant. He,, also tried to give an impression that on being challenged and asked to surrender what they had, the deceased and his companion got down from their cycles, abused Dhani Bakhsh and approached with a view to attack him with their cycle‑pumps at which Dhani Bakhsh fired two shots which did not hit when he fired the third shot hitting one of them. He concluded by saying that the revolver, the wrist‑watch arid the money were buried in a pit in Kahoo jo‑Daro, which were banded over to the police on the next morning. More or less to the same effect was the confessional statement of Dhani Bakhsh appellant. He admitted having a revolver and a torch, flashing the torch on the cyclists, ordering them to surrender everything at which they got down from the cycles and started abusing them. One of them approached him with a pump to attack him when he fired two ineffective shots but he remained undeterred. He then fired the third shot which hit him. Being so injured, he gave him a wrist‑watch and five rupees. They buried the wrist watch, the revolver and money in a pit in Kahoo‑jo‑Daro and next morning. on being arrested got recovered the watch and the revolver.

4. Post‑mortem examination of the dead body of Salamo revealed oval wound 4/5" x 1/2" x thorax cavity deep with blackening of margins 1 below the inner end of the left collar bone piercing the left lung through and through which proved fatal. The bullet of which there was no indication of exit could not be detected during post‑mortem examination and was either coughed out or was stuck up in some bone. Both the revolver and the four, empties recovered from the spot were found by the Ballistic Expert, Mukhtar Ahmad (P. W. 2) to be wedded to each other.

5. Two identification parades were held in Jail. One was to enable Lali complainant to prove his claim and identify the accused in which he partly succeeded picking out only Phatoo, and the other was to enable Karim Bakhsh, tracker to identify the foot‑prints of the accused on the basis of his impressions of the slippered foot‑prints of the two culprits proceeding to the spot from village Langhani. He picked out both of them.

6. The case of the accused was one of complete denial and they led no evidence in defence. Although the learned Sessions Judge was rather, sceptical about Lali's doubtful claim to identification and excluded his testimony in this regard yet the rest of the evidence of extra judicial confession, identification tests and recoveries was considered good enough to bring home the guilt to the accused. As stated earlier, the High Court found it unsafe to maintain the conviction of Phatoo on the basis of uncorroborated judicial confession but considered the recoveries of the revolver, the wrist watch and the positive report of the Ballistic Expert to furnish sufficient corroboration to the judicial confession of Dhani Bakhsh appellant and it was to examine this evidence that leave was granted by this Court.

7. The important questions to be considered by us in the case are Firstly, as to whether the judicial confession of the appellant recorded by the Sessions Judge was freely and voluntarily made, Secondly, whether it also had a ring of truth inspiring confidence so as to be good enough per se to form the sole basis of conviction, and Lastly, in case it needed independent corroboration, whether such confirmatory evidence was available.

8. Taking first the judicial confession, it is well settled that although a retracted judicial confession is seldom made the basis of conviction without being materially corroborated, yet the position though very rare is not wholly inconceivable depending upon the facts and circumstances of each case as held in this Court's judgment in State v. Minhun alias Gul Hassan P L D 1964 S C 813. In the instant case, however we find that the mode and method of recording the confession of one accused in the presence of the other casts serious doubt on its voluntariness which in the basic requirement of law as also for its appeal to the judicial conscience. The whole object of legal and judicial insistence on the meticulous observance of all the necessary formalities and precautions laid down with minute particularity is to ensure that the confessional statement should be absolutely free from the slightest tinge oil taint of extraneous influence such as threat, promise or inducement and the Courts are placed under an obligation to affirmatively satisfy themselves that it is free and voluntary. It was observed by Denman, J. in Reg, v. Rosa Rue (1876) 13 Cox. C C 209: "It is not merely a question as to whom the confession is made or when it is made; but it is a matter in which you have to get at the mind of the prisoner, and see whether or not it is probable that the confession was made voluntarily, in the proper sense of the word." I am afraid, the way the confessional statement of Dhani Bakhsh appellant was recorded right in view of his co‑accused at a distance of about 30 feet from him possible within his ear‑shot which possibility was of course denied by the Magistrate and at a time when the confessional statement of the acquitted accused had already been recorded in the admitted presence of Dhani Bakhsh who was made to stand in a corner of the Court Room, it is difficult to infer that the appellant remained altogether uninfluenced by the conduct of his co‑accused in the matter of his own confessional statement. It is not difficult to appreciate the psychological influence on the mind of the appellant or may be even his guilty conscience, of what had already transpired in Court in his view and within his ear‑shot. The preceding confession of his co‑accused must necessarily have exercised some persuasive if not compelling force on his mind to follow suit. In that view of the matter, the confessional statement of the appellant cannot be characterised as free and voluntary having been made in an absolutely free and uninhibited manner.

9. But this is not all. There are other important considerations which tend to show that even the veracity of the confession is not free from doubt. Even if one were to believe the version disclosed in the confessional statement of Dhani Bakhsh wherein he tried t: convey the impression that but for the apprehended attack he would not have fired at the deceased, having tried to scare him away by firing two shots in the air in the first instance, the appellant could still be burdened with the full responsibility of murder inasmuch as the law conferred on the deceased and his companions every right to defend their person and property. But there is a glaring and irreconcilable conflict between the confessional statement and the rest of the prosecution case which strongly militates against the correctness of the former. According to Dhani Bakhsh after he and 'his co‑accused were arrested they dug out the wrist-watch and the revolver etc. Although in his judicial confession, Phatoo slid not specifically mention the digging out of the watch and the revolver, he too conveyed the same impression, namely, that the watch and the revolver were got recovered by them of course in turn, one after the other, yet according to the prosecution the same watch had already been recovered from the bundle which Dhani Bakhsh was carrying at the time of his arrest. This stands clearly established by the relevant recovery memo./masheernama, Exh. 29 of which item 6 refers to the wrist watch. Again the masheernama pertaining to the recovery of the revolver Exh. 30 refers only to the recovery of the revolver with five bullets from Kahoo-jo- Daro. To that extent, therefore, the confessional statement was clearly incorrect.

10. Again there are two other doubtful circumstances, which affect the reliability of the confession: Firstly, it does not stand to reason that having been fatally wounded in the chest, the deceased was still in a position to give his wrist‑watch as also five rupees to the appellant as the litter would have us believe. Secondly, in his statement Phatoo referred to Lali's having given ten rupees to Dhani Bakhsh. In this he was also supported by Lali and yet Dhani Bakhsh in his statement made no reference to this part which is indeed a significant omission. I am conscious of the fact that at times the statement of an accused might lend implied support to the prosecution case based on evidence aliunde, but unfortunately in the case before us the confessional statement is the sheet‑anchor of the prosecution case which must stand or fall with it.

11. Thus in the ultimate analysis with the exclusion of the testimony of Lali complainant, the only eye‑witness in the case whose claim to identification stands already discredited, we are left with this half exculpatory and half exculpatory confession containing a palpable mis statement and recorded in a manner casting serious doubt on its voluntariness. No reliance can, therefore, be placed on it. Again I have no hesitation in holding that there is nothing to establish the deceased's D ownership of the watch allegedly recovered from the possession of the appellant. This recovery is simply worthies; and of no evidentiary value. Likewise, the rather perfunctory manner of the recovery of the revolver at the instance of the appellant as also the acquitted co‑accused makes it equally doubtful. Haroon (P. W. 9) the only witness who appeared in support o this besides the A. S. I. had admitted before the Committing Magistrate that both the accused had dug out the revolver apparently giving the impression of simultaneousness. But what is more important is the fact that on his own showing, he appeared to be a professional witness of the police who had acted as a police Masheer in 5 or 6 cases. His testimony cannot, therefore, be accepted without reservation. No sanctity would thus attach to the recovery of the revolver based on the solitary statement of the A. S. I. which even otherwise, is exposed to serious criticism because of the perfunctory and repetitions mode of its being dug out.

12. The upshot of the discussion, therefore, is that there was no firm foundation in law for the conviction of the appellant and its maintenance is r not in consonance with the safe dispensation of criminal justice. I will, therefore, accept the appeal, set aside the conviction of the appellant and acquit him,

HAMOODUR REHMAN, C. J. ‑--I agree.

SALAHUDDIN AHMED, J. ‑--I agree.

ABDUL QADIR SHAIKH, J .‑-I agree.

S. A. H. Appeal allowed.