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Petitioner: RASUL BUX VS Respondent: THE STATE
P L D 1960 (W
P L D 1960 (W. P.) Karachi 956
Before Munshi, J
RASUL BUX‑Appellant
versus
THE STATE‑Respondent
Criminal Appeal No. 768 of 1959,; decided on 6th October 1960.
(a) Evidence Act (I of 1872), S. 30‑Confession of co‑accused when can be taken into consideration‑Criminal Procedure Code (V of 1898), S. 164.
A confession by a cc‑accused retracted or otherwise can be taken into consideration only after the prosecution by means of an independent and reliable evidence have established the charge against the accused against whom the confession is sought to be used.
A confession of exculpatory nature cannot possibly be used against any co‑accused.
(b) Evidence Act (I of 1872), S. 133‑Accomplice evidence Test1mony of person jointly tried with accused‑Not admissible.
(c) Benefit of doubt‑Circumstance not incompatible with innocence of accused‑Benefit of doubt goes to him.
Muhammad Hayat Junejo for Appellant.
Azizullah Sheikh for Respondent.
Date of hearing : 6th October 1960.
JUDGMENT
Rasul Bux son of Alibux by caste Soomar has been convicted by the learned Sessions Judge of Larkana of the offences punishable under sections 147/109, 147, 342, 170 and 171/109, P. P. C., and sentenced to R. I. for 12 months under section 147/109, 12 months under section 342/109, 6 months under section 170/109 and 3 months under section 171/109, P. P. C., respectively with the direction that the sentences should run concurrently.
This appeal is directed against the above judgment.
The appellant along with 6 others was tried in the above Court, the charge against him being for the offences punishable under sections 147 and 366/ 109, P. P. C. The learned Judge acquitted Ghulam Sarwar Sahani and convicted lmambux, Wali Muhammad, Roshan, Misri and Ghulam Sarwar Kohi of the substantive offences punishable under sections 147 and 342, P. P. C. In addition Imambux has been convicted of the offences punishable under sections 170 and 171, P. P. C., while the appellant has been convicted for having abetted these 5 men to commit the above mentioned offences.
There was a singing party in Dosu Daro village also called Sahani village, where some street singers were entertaining about 200 people with their songs. At about bed time, according to the prosecution, the above mentioned 5 men suddenly appeared there, Imambux amongst them wearing a police uniform. He told the women singers that they were wanted by the Jamadar. This they refused, on which they started dragging the women. The people who had gathered there came to the rescue of the women, caught hold of the 5 men namely Imambux, Wali Muhammad, Roshan, Misri and Ghulam Sarwar Kohi and detained them in the house of witness Mehar. Thereafter, Mehar went and lodged a report with the police. The police visited the house of Mehar where they found these 5 men whom they put under arrest. After completing the investigation, the police challaned these 5 men and the appellant and also Ghulam Sarwar Sahani with the above result.
The 5 men who have been convicted of the substantive offences have not preferred any appeal. I am therefore concerned with the appeal of Rasulbux.
The allegation against the appellant was that he abetted the 5 men by lending his uniform to appellant Imambux in order to facilitate the commission of the offence of wrongful confinement. He denied the charge and stated that while he was asleep his uniform was stolen. He stated that in the morning when he found the uniform missing, he made Inquiries but with no result. Thereafter he went to Naudero police station and there informed Head Constable Mir Muhammad. He was told that already a report had been lodged in that connection. He denied that he knew the appellant Imambux.
I have heard the learned counsel on either side. The learned counsel for the State frankly conceded that the important link in the evidence is missing namely the evidence that it was Rasulbux the appellant who lent his uniform to Imambux. The entire case of the prosecution rests on the confession of Imambux and his statement under section 342, Cr. P. C. There is no other evidence to establish that Rasulbux himself had lent his uniform to Imambux. The law on the use of confession of an accused person against a co‑accused is by now settled. Such a confession retracted or otherwise can be taken into consideration only after the prosecution by means of an independent and reliable evidence have established the charge against the accused against whom the confession is sought to be used. As said above in this case) there is no other evidence. All that the witnesses have stated is that when the accused appeared at the scene, Imambux told the women that they were wanted by the Jamadar, without mentioning the name of the Jamadar. It is admitted that Rasulbux was not a Jamadar. Even the contents of the confession of Imambux do not show that he or his companions had committed the offence under section 342, for in that confession, he has stated that when he persisted in asking the women to accompany him to the Jamadar, the people who had gathered there pounced upon him and beat and caught him. Nowhere in his confession does he say, he even touched the women or put them under any restraint. This confession therefore is of exculpatory nature and as such it cannot possibly be used against any co‑accused. The other piece: of evidence on which the learned Judge has relied, is the statement' of Imambux in Court where he stated that the uniform which he was found wearing was lent to him by Rasulbux. It has been held by this Court on more than one occasion, that such a statement is inadmissible against co‑accused and as such, it should not have been taken into consideration by the learned Judge. The only circumstance relied upon by the learned Judge is the fact that Imambux was found wearing his uniform. The appellant has offered explanation and that is that it was stolen while he was asleep. But even if this explanation was not found acceptable, the fact that Imambux was found wearing this uniform, does not prove that the uniform was lent to him by the appellant. The admitted position is that the appellant was staying with Ghulam Sarwar Sahani, and the allegation against Sahani was that it was he who wanted that the women should be brought to his otak for entertainment. The above circumstance is capable of many explanations. It is not unlikely that Sarwar Sahani might have permitted Imambux to wear the uniform of Rasulbux, and this view gets support from the fact that Imambux s clothes were actually recovered from the possession of this man. Anyway, this circumstance is not incompatible with the innocence of the appellant. In the result I allow the appeal and set aside the convic tion and sentence imposed upon the appellant. He is on bail, his bail bond stands discharged.
K. B. A.
Appeal allowed.