ALI AKBAR Versus THE STATE

AJMAL MIAN, J.-- By this common judgment, we intend to dispose of the above confirmation reference and appeal in respect of the judgment dated 25 8-1987 passed by the learned Sessions Judge, Thatta, in Sessions Case No. 42 of 1985, convicting the present appellant Ali Akbar son of Rasool Bux under section 302, P.P.C. for murdering on 24-4-1985 at about dawn time, his wife Mst. Hidayat Khatoon and one Outubuddin Chandio, her paramour, by causing hatchet injuries and sentencing him to death, subject to the confirmation by this Court. The learned Sessions Judge has made the above reference, whereas the appellant has filed the above jail appeal.

2. The relevant facts leading to the making of the above reference and filing of the above appeal are that P.W.1 Niaz Hussain son of Ali Akbar lodged F.I.R. on 24-4-1985 at 6-30 a.m. with the Police Station Jati, situated about 6 miles from the house of deceased Qutubuddin Chandio situated in Deh Gujjo, Parerri, taluka Jati alleging therein that he and his father used to cultivate the lands of deceased Qutubuddin son of Khuda Bux about 5-6 months back in Deh Gujjo where his mother Mst. Hadayat Khatoon became ill. He further alleged that his father being the loafer type person used to bring strangers in the house and during the illness of his mother he did not provide any medical treatment to her, upon which deceased Qutubuddin asked his father that he was ready to provide medical treatment to his wife and if she improved, his father would divorce her and he would marry her, to which his father gave reply in the affirmative. It was further alleged that after that his father took his mother to his original village, Haji Ramzan Chandio, Taluka Moro, and that after a few days there was a marriage ceremony in their relations and, therefore, his father asked his mother to participate in it but she refused and because of that his father mercilessly gave beating to her. It was also asserted that afterwards his mother's brother Nanger asked the complainant to bring his mother and to reside with him, which he did. It was also stated that after 2-4 days his mother filed suit for dissolution of marriage. It was also averred that the complainant's father continued to cause embarrassment to his maternal-uncle, who asked him to take away his mother to some other place and that during the above days deceased Qutubuddin also came, in the village, to whom his grand-father asked to take his daughter. Thereupon, Qutubuddin took him, his mother and his brother Rashid Ahmad to Jati to reside on his lands. It was also alleged that he and his little brothers Rashid Ahmad and Master Ghulam Muhammad were sleeping out side the house and his mother and Qutubuddin were sleeping inside the house. He at the sun rising time got up to, make water when he heard the cries of his little brother Mazhar Hussain aged 1- 1/4 years. Thereupon, be went into the house and burnt the light and saw his mother and Outubuddin on one cot having hatchet injuries and were bleeding, and his mother was sinking. Thereafter he came out and woke up his brothel Master Ghulam Muhammad and narrated the above facts and asked him to bring, vehicle and thereafter he went to Aloo Borio and awakened him and told him the above facts and brought the vehicle when he found his mother had expired. After that he accompanied the Datsun Driver Ali Muhammad to the police station and reported that his mother and Outubuddin had been murdered by causing hatchet injuries. It was also stated that Fayazuddin, who was son of deceased Outubuddiin was angry on the marriage of his father with his mother and Qutubuddin had separated his son on this. It was also averred that he suspected his father and deceased Outubuddin's son Fayazuddin. The above F.I.R. was recorded by .O. Jati Police Station, but he was not examined by the prosecution.

13. The prosecution in support of the case examined P.W.1 Niaz Hussain, son of the appellant and the complainant, who proved F.I.R. Exh.6-A, P.W.2 Allu one of the Mashirs to the Mashirnama of place of Wardat Exh.8-A, two inquest reports Exhs. 8-B and 8-C and to the Mashirnama of the seizure of the blood stained clothes of the two deceased, P.W.3 Muhammad Hanif, a police constable who took the dead bodies of the two deceased to the Medical Officer Rural Health Centre, Jati for post-mortem, P.W.4 Aroo Khan a tracker of the footprints, P.W.5 Jhangal Khan Tapedar of Tapo Seer Gandho, Deb. Gujjo Bareri, Taluka Jatio, who prepared the sketch of the place of Wardat Exh.ll-A, P.W.6 Dr. Abdul Latif, who carried out the post-mortem on receipt of the dead bodies of the deceased and prepared reports Exhs. 12-A and 12-B, P.W.7 Nawab Ali, Mukhtiarkar and, F.C.M. Tando Muhammad Khan, who recorded the judicial confession of the appellant (Exh.13-A) on 16-5-1985.

The accused in his 342, Cr.P.C. statement denied the factum of having committed the crime. The learned Sessions Judge after hearing the parties recorded the conviction of the appellant in the above terms. The learned Sessions judge has made the above reference, whereas the appellant has filed the above appeal, as observed hereinabove.

4. Mr. Murtaza Hussain learned counsel for the appellant has vehemently urged that there is no reliable piece of evidence on record on the basis of which conviction for a capital crime could have been recorded and, therefore, the judgment under appeal cannot be sustained.

On the other hand Mr. Rashid Tariq Khan learned counsel for the State has submitted that the retracted confession seems to be natural and convincing and is coupled with the motive and hence the conviction is in consonance with law.

5. It is an admitted position that there is no eye-witness to the commission of the offence and, therefore, we are left with the retracted judicial confession and the motive. Mr. Murtaza Hussain, learned counsel for the appellant has referred to the following cases in order to demonstrate that the retracted confession in question cannot be relied upon:-

(i) Hakim Gul v. The State P L D 1964 (W.P.) Pesh. 1, in which a Division Bench of the erstwhile High Court of West Pakistan at Peshawar held that omission on the part of the Magistrate recording confession to inform the accused that he would not be sent back to police custody but would be sent to judicial lock-up would cast doubt as to its voluntariness and that retracted confession is not by itself sufficient for conviction unless corroborated by independent piece of evidence.

(ii) Allah Dad v. The State P L D 1974 Kar. 130 in which Muhammad Haleem, J. as he then was, held that the trial Court had erred in relying on the uncorroborated judicial confession and convicting the appellant for the murder of his wife.

(iii) Baboo v. The State P L D 1961 (W.P.) Kar. 240, in which a Division Bench of the erstwhile High Court of West Pakistan at Karachi highlighted the difference between inculpatory and exculpatory statement contained in a confession.

On the other hand Mi-. Rashid Tariq Khan learned counsel for the State has referred to the case of Joygun Bibi v. The State reported in P L D 1960 S C (Pak.) 313, in which the Honourable Supreme Court has observed that the retraction of a confession is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily made, and on the further question whether it is true and that the fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings on the above two questions and that once it is found that the confession was voluntary and was true it could be relied upon, though retracted by the maker of the same.

6. We may observe that it is by now well-settled principle of law that before recording any judicial confession the Magistrate should strictly comply with the required formalities as to the various warnings/information which are to be given to the accused persons in order to ensure that the confession is not made on account of any inducement or because of the pressure of the police. It is also a well-settled principle of law that there should not be any unexplained lapse of time between the date of the arrest and the recording of the confession. In the present case the appellant was arrested on 12-5-1985 but the confession was recorded on 16-5-1985. The prosecution has not examined the investigating Officer in order to explain the reason as to why there was delay in recording of the confession. The above unexplained delay adversely affects the voluntariness of the confession. Furthermore, the Magistrate who recorded the confession, P.W. Nawab Ali though had filled in the form of confession indicating the compliance of the requirements but in his cross-examination admitted the fact that he had not mentioned in the confession that he had informed the accused that he was a Magistrate of First Class nor he had mentioned in the confession that he had read over the confession to the accused. He has further admitted that he did not write the confession himself as he was feeling pain in his right arm. He has further admitted that he had not informed the accused that even if he did not make any confession, he would not be sent back to the same police custody. If the above admission is to be read in conjunction with the appellant's statement, which he made under section 342, Cr.P.C., that he was not produced before any Magistrate and his signatures on the confession Exh.13-A were obtained in the police lock up, creates serious doubt as to the voluntariness of the above confession and, therefore, no implicit reliance can be placed, particularly, in view of the fact that the same was recorded after four days from the date of arrest while the appellant was in police custody.

Apart from the above facts, the Investigating Officer was not examined, which omission has deprived the appellant to bring on record material which might have been in his favour, nor the brother of deceased Mst. Hadayat Khatoon, namely, Nangar mentioned in the F.I.R. was examined, who could have been a material witness.

7. If we were to exclude the above retracted judicial confession, we are left with motive alone, in respect of which the appellant has raised plea of the possibility of deceased Qutubuddin's son Fayazuddin of having committed the above murders.

Mr. Murtaza Hussain has referred to the case of Safdar Ali v. The Crown reported in P L D 1953 F C 93, in which the Honourable Federal Court held that it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence and if after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, in that event it will react on the whole prosecution case and the accused is entitled to benefit of doubt, not as a matter of grace, but as of right. It was also held that to relieve the prosecution from the necessity of proving the absence of facts that might bring the case within a general or special exception, the burden always remains on prosecution and accused's burden is not as heavy as that of prosecution and that even if accused fails to prove special pleadings but succeeds in raising reasonable doubt, he is entitled to acquittal.

8. We are, therefore, inclined to hold that the material on record does not prove the prosecution case beyond reasonable doubt and the case is not free from i doubt, and, therefore, the appellant is entitled to the benefit of doubt. We, therefore, allow the appeal and set aside the conviction and sentence and order the release of the appellant forthwith, unless he is required in some other case. In view of the matter, the reference made by the learned Sessions Judge is rejected.

These are the reasons in pursuance of a short order of even date.

M.Y.H./A-372/K

Appeal allowed.