1. ' This appeal is directed against the judgment, dated 4-1-2000, passed by the learned Sessions Judge, Tharparkar at Mithi in Sessions Case No,5 of 1999, whereby both the appellants have been convicted for the offences punishable under sections 302, 201 read with section 34, P.P.C. And have been sentenced to imprisonment for life and to pay fine of Rs.50,000 each. In default of payment of fine they have to undergo further R.I. For two years. They have been further directed to pay compensation of Rs.25,000 each to the heirs of deceased.
2. ' The relevant facts are that on 6-1-1999 complainant Qasim lodged F.I.R. At Police Station Mithi, stating therein that deceased Makhan was his nephew and son-in-law and was doing his business of purchase and sale of goats. He left his house more than 17/18 days prior to the lodging of the F.I.R.
3. In connection with the business and did not return. The complainant came to Mithi in search of Makhan, where P. Ws. Arboo Sangrasi and Sulleman met him and informed that they had seen and met Makhan who had told them that he was going to village Mithrio Bhatti to purchase goats from accused Sango. On receiving this information, the complainant went to village Mithrio Bhatti but could not meet accused Sango or Ramesh as they had slipped away on hearing the arrival of Qasim. The complainant then came back to Mithi on the next day and informed this fact to Maghan, Meehan, Adam, Abban, Qurban and Arbu and asked them to go to village Mithrio and himself lodged the F.I.R. He further stated in the F.I.R. That he had strong suspicion that accused Sango and Ramesh had committed murder of Makhan. After recording of F.I.R., police proceeded to village Mithrio Bhatti and received spy information that accused Ramesh was available in the house of Punhoon. Police apprehended him, who informed that accused Sango had committed murder of Makhan and he and Sango had buried the dead body by digging the sand. He volunteered to point out the place where the dead body was buried. Accused Ramesh then led police and witnesses to the place where the accused persons had buried the deceased. The S.H.O., Police Station Mithi left the accused and witnesses in custody of other police staff and himself went to Mithi to procure the services of doctor and Magistrate. The S.H.O. Returned back alongwith Mukhtiarkar and F.C.M., Mithi and one doctor. Another doctor was already available at the place of incident. With the assistance of the witnesses the sand was dug and the dead body of Makhan was exhumed. The dead body was identified by complainant and the witnesses. The dead body had incised wound on its face and the neck was cut. The doctors present there performed post- mortem examination and then the dead body was handed over to the heirs. Thereafter the Investigation Officer arrested accused Sango and his brother Jawaro, whereafter the accused Sango pointed out the place where murder of deceased was committed and the dead body was buried. The Investigating Officer then prepared Mashirnama of the place of incident and secured the clothes of the deceased. Accused Sango produced his blood-stained clothes which he was wearing at the time of incident and produced one hatchet and spade from his house. The hatchet was blood-stained. He then pointed out the exact place where the murder was committed and dug out the sand which was stained with blood. He further produced Rs.8,400 which was concealed in the earth and was allegedly taken by him from the pocket of deceased. Accused Ramesh also produced his blood-stained clothes on 9-1-1999. On 12-1-1999 the accused persons volunteered to make confession who were produced before Judicial Magistrate, who recorded their confession.
4. Both of them confessed to have committed murder of deceased Makhan by giving him hatchet blows and thereafter buried the dead body by digging the sand. After completion of the investigation both the accused persons were challaned to face trial.
5. ' The accused persons pleaded not guilty to the charge. The prosecution examined P.W.1 Qasim, P.W.2 Arboo alias Arbab, P.W.3 Sulleman, P.W.4 Maghan, P.W.5 Qurban, Mashir, P.W.6, Dr. Lekhraj, Medical Officer, P.W.7 Meehan, P.W.8 Muhammad Khan, Mukhtiarkar Mithi, P.W.9 Muhammad Pariyal, Investigating Officer, P.W.10 Chatromal, Tapedar and P.W.11 Kirshan Kumar, Civil Judge and F.C.M., Mithi. The accused persons were examined under section 342, Cr.P.C., who denied the prosecution allegations. They stated that the confession was result of police torture and was dictated by police.
6. They did not examine themselves on oath under section 340(2), Cr.P.C. And did not produce any witness in defence.
7. ' The learned trial Court held that deceased Makhan died unnatural death. The learned trial Court further held that deceased Makhan was murdered by the two appellants. Consequently the appellants were convicted and sentenced as narrated above. Being aggrieved with the conviction and sentence both the appellants preferred this appeal.
8. ' I have heard M/s Moharram G. Baloch and Allah Bachayo Soomro, learned advocates for appellant Sango, Mr. Ayaz Hussain Tunio, learned counsel for appellant Ramesh and Mr. Rasheed Ahmed Qureshi, learned Assistant A.-G. For the State.
9. ' Mr. Mohrram Baloch, learned counsel for appellant Sango has submitted that it is unwitnessed incident. The prosecution case is based on circumstantial evidence and confessions. He has contended that the confession was recorded after three days of the arrest of accused Sango and six days after the arrest of accused Ramesh. According to him, the confessions were not voluntary and were not reliable at all. In support of this contention he has taken me through the cross- examination of P.W.11 Kirshan Kumar who has conceded in the cross-examination that when he gave warning to accused Ramesh, accused Sango was also present in his Court. He has further conceded that he had given warning to both the accused at one and the same time. He has further conceded that both the accused were made to sit in his Chamber from 9-00 a.m. To 12-00 noon and when judicial confession of Sango was being recorded Ramesh was sitting there.
10. Similarly when the confession of Ramesh was being recorded, Sango was sitting there. He has further confessed that he has not specifically recorded in the confessional statements that the appellants were informed that whether they make confession or not they shall not be sent back to police custody, as according to him there was no such column in the prescribed pro forma. He further contended that according to High court circular he was required to put six extra questions in addition to the question in the prescribed pro forma but he has not recorded those questions and answers. He has further conceded that in both the confessions it is not written that at the time of first warning the appellants were informed that if they give confession it will be used as evidence against them. He has further stated that the accused persons informed him that they had remained in police custody for 13-14 days. He has further stated that the confession of accused Sango was recorded in his own handwriting in Sindhi while the confession of accused Ramesh was in the handwriting of his Reader who was given dictation. He has submitted that in view of the admissions made by the Magistrate the confessions are not in accordance with the law and therefore, are inadmissible in evidence. In support of his contentions he has placed reliance on a Division Bench Judgment of this Court in the case of Sodho and others v. The State SBLR 2002 Sindh 1522, wherein it has been held as follows:-- "The mode and the method of recording the confession of one accused in presence of other casts serious doubt on its voluntariness which is the basic requirement of law as also for the appeal to the judicial conscience. The whole object of legal and judicial insistence on the meticulous observance of all the necessary formalities and precaution laid down with minute particularity is to ensure that the confessional statement should be absolute free from the slightest tings or 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."
11. ' Ultimately it was held that the confessions were inadmissible in evidence.
12. ' Mr. Moharram Baloch has further contended that the dead body has been recovered at the pointation of accused Ramesh and not accused Sango.
13. ' He has maintained that further circumstantial evidence comprises the recovery of blood-stained clothes of Sango, spade and hatchet and Rs.8,400 he has contended that it is unbelievable that the accused persons shall preserve their blood-stained clothes for several weeks and shall produce the same before the police. The prosecution version on this point is improbable. He has further urged that the prosecution version that the amount of Rs.8,400 was produced by digging the sand is also improbable and unnatural because there was no necessity of burying the currency notes in the sand. Mr. Allah Bachayo, Advocate, has further submitted that the confession is not reliable for additional reason that it is contrary rather contradictory to the prosecution case. He has further pointed out that according to Medical Certificate deceased had one injury only and, therefore, the blood stains on the spade and hatchet is inexplicable.
14. ' Mr. Ayaz Hussain Tunio, learned counsel for Ramesh has submitted that P.W. Sulleman has not supported the prosecution case and was declared hostile. He has further submitted that there is delay .Of 17 days in lodging of F.I.R. For which no explanation has been given and it is sufficient ground for acquittal of accused.
15. ' Mr. Rasheed Ahmed Qureshi, learned Asstt. A.-G. Has submitted that the delay in lodging of the F.I.R. Is fully explained. The complainant has stated that deceased Makhan used to purchase and sell goats and for that purpose he left his village. When he did not return for sufficiently long period, he set out in his search and came to know at Mithi that deceased had gone to Mithrio Bhatti village.
16. The learned Asstt. A.-G., has further supported the impugned conviction and sentence contending that the prosecution has successfully brought home the guilt to the accused persons, at whose pointation the dead body and other articles were recovered.
17. ' I have carefully considered the contentions raised by the learned Advocates for the parties. Before dilating on the contentions, I would like to appraise the entire prosecution evidence in order to determine whether the prosecution evidence on record is sufficient to sustain the impugned sentence and conviction.
18. ' P.W.1 Qasim has deposed that deceased Makhan was his nephew and son-in-law. Deceased left his village in connection with his business trip but.Did not return for 18 days. On 5-1-1999 he went to Mithi in search of deceased Makhan and was informed by Arboo and Sulleman that about 15/16 days back Makhan had arrived at Mithi and had gone to village Mithrio to purchase goats from Sango and others. He then went to village Mithrio Bhatti and enquired about Sango and Ramesh, who disappeared and did not meet him. He then returned to Mithi, where he met his other relatives who were sent to village Mithrio Bhatti and he himself lodged F.I.R. Exh.8-A. After recording F.I.R.
19. Police accompanied him to village Mithrio and called Arboo Sangrasi and Qurban Vikio. They all proceeded to the house of Punhoon Menghwar. Accused Ramesh was found there in a room of Autaq, who was enquired about deceased Makhan. Accused Ramesh disclosed that Makhan was murdered by accused Sango for robbing him of money. Ramesh volunteered to show the place where the dead body of Makhan was buried. He pointed out the said place, which was a goat-pen.
20. It was at the call's distance from the Autaq of Ramesh. S.H.O. Then left policemen, complainant and other persons at that place and went to Mithi for obtaining services of Magistrate and doctor, for digging the grave. He returned back with a doctor and Magistrate after about half an hour.
21. Maghan, Meenhan, Adam and Abban dug out the grave in which Makhan was buried. His dead body was identified by the complainant. He had one hatchet injury on his neck and one on his face.
22. The post-mortem was conducted by the doctor at the spot. The police recovered the bloodstained clothes of the deceased.
23. ' P.W.2 Arboo alias Arbab has stated that on 5-1-1999 complainant Qasim met him and informed that Makhan was missing for the last 15/16 days. He has further stated that he and P.W. Sulleman informed Qasim that they had seen Makhan about 15/16 days back in Mithi, from where he had gone to Mithrio village to purchase goats from Sango and Ramesh. The complainant was advised to make enquiry from Sango and Ramesh. On the next day complainant Qasim informed that he had gone to Mithi but on information of his arrival, Sango and Ramesh disappeared. He then requested him to go to Mithrio with Maghan, Meenhan and Qurban. Qasim himself went to lodge F.I.R. He has further stated that he and Qurban went to the house of Ramesh alongwith police, who enquired about Makhan. Ramesh then volunteered to point out the place where Makhan was lying buried, which was situated in a goat-pen. Accused Ramesh pointed out the place, where dead body of Makhan was lying buried. The S.H.O. Then brought doctor and Mukhtiarkar from Mithi, in whose presence Menhan, Maghan and Adam dug out the dead body which was identified by complainant Qasim to be dead body of Makhan. The doctor conducted post-mortem examination of the dead body. On third day of the recovery of the dead body accused Sango was apprehended, who also pointed out the place where Makhan was murdered. The blood-stained earth and Rs.8,400 alongwith certain chits were recovered from that place., ' P.W.3 Sulleman has stated he had informed complainant Qasim that about 15/16 days back Makhan had met him and had disclosed that he was going to village Mithrio Bhatti to purchase goats from Sango and Ramesh. He has not stated anything else and was declared hostile by the prosecutor.
24. ' P.W.4 Maghan has stated that as per instructions of complainant Qasim, he alongwith Qurban, Arboo, Adam and Meenhan went to village Mithrio Bhatti on 6-1-1999. He has further stated that police after making inquiry from accused Ramesh called Mukhtiarkar, in whose presence he, alongwith Meenhan, Adam, and Abban dug out one grave and took out the dead body of Makhan which was identified by complainant Qasim. In cross-examination he has stated that at the time of digging of grave, Mukhtiarkar, doctor, complainant and other witnesses were present. Replying to a Court question he has stated that accused Ramesh was standing at a distance of one acre from place of Wardat when the dead body of Makhan was dug out.
25. ' P.W.5 Qurban is the Mashir of arrest, place of incident, recovery of dead body, securing of clothes and recovery of hatchets. He has fully supported all the Mashirnamas and has stated that Ramesh led the police to the place of Wardat which was situated in a goat-pen, from where the dead body of Makhan was dug out in presence of Mukhtiarkar and doctor. He has further stated that on the same day accused Sango was arrested from hospital at village Mithrio Bhatti. He has further stated that on 9-1-1999 accused Sango volunteered to produce his clothes which he was wearing at the time of incident. The clothes were stained with blood and were secured under Mashirnama. On the same day accused Sango voluntarily produced hatchet and spade which were stained with blood.
26. He has stated that in his presence hatchet and spade were not sealed but they were wrapped with a paper. On the same day accused Sango voluntarily led police to the place from where dead body of Makhan was dug out and showed a place from where some money and three chits on which some account was written were dug out. The amount recovered was Rs.8,400. Police secured blood-stained earth from the place where the amount was concealed. This Mashir has further stated that on 9-1-1999 accused Ramesh volunteered and produced his clothes which he was wearing but the same were not stained with blood. In cross-examination he has stated, that, at the time of digging out the grave about 60 to 70 persons were present. He has further stated that he had noticed two injuries on the person of dead body of deceased and bad smell was coming out of decomposed dead body. He has further stated in cross-examination that the hatchet and spade were lying at the roof of the but of accused Sango.
27. ' P.W.6 Dr. Lekhraj, the Medical Officer, has deposed that on 6-1-1999 he was directed by District Health Officer, Tharparkar at Mithi to conduct post-mortem examination of deceased Makhan at the place where dead body was lying. It was a goat-pen in village Mithrio Bhatti and in his presence the dead body of Makhan was dug out which was identified by complainant Qasim. On external examination he found an incised wound measuring 7 c.m. x 5 c.m. Extending from right angle of mouth towards right side of neck, cutting skin muscles, vessels, nerves with fracture of right side of mandible and right half of third cervical vertebrae. He opined that the death was caused due to the above injury.
28. ' P.W.7 Meenhan has supported the other witnesses on the point of accused Ramesh leading to the discovery of the dead body of Makhan.
29. ' P.W.8 Muhammad Khan, Mukhtiarkar Mithi, has also supported the discovery of dead body of Makhan on the pointation of accused Ramesh. In cross-examination he has conceded that in his 161, Cr.P.C. Statement he has not stated that the dead body was pointed out by accused Ramesh and has not mentioned that accused Ramesh was present at the Wardat.
30. ' P.W.9 S.I.P. Muhammad Pariyal has stated that on 6-1-1999 he was S.H.O. Of Police Station Mithi. On that day he recorded F.I.R. At the instance of complainant Qasim. After recording the F.I.R. He proceeded to village Mrthrio Bhatti alongwith complainant and received spy information that accused Ramesh Menghwar was available in the Autaq of Punhoon Menghwar. He proceeded there and arrested accused Ramesh under Mashirnama Exh.12-A. After his arrest, accused Ramesh pointed out place where dead body of Makhan was buried. It was in a cattle-pen near the village.
31. Accused led police and Mashirs to that place and .Stated that the dead body was buried there. He left police guard at that place and went to Mithi where he submitted a letter to the District Magistrate for providing him a 'Magistrate, for the purpose of exhumation of dead body and further requested for services of doctor. He thereafter took Mukhtiarkar and doctors to the place which was pointed out by accused Ramesh. That place was dug out from which dead body of deceased Makhan was recovered. The dead body was identified by complainant. Mashirnama was prepared.
32. He thereafter prepared the inquest report. The Medical Officer conducted post-mortem at the same place. The dead body was handed over to the complainant and his clothes were secured vide Mashirnama Exh.12-C. He then received spy information that accused Sango was available in Mithrio village hospital. He proceeded there and arrested accused Sango under Mashirnama Exh.12-D. He then recorded 161, Cr.P.C. Statements of the witnesses.
33. ' On 12-1-1999 both the accused volunteered for confession and they were produced before the Judicial Magistrate for their confessions. He has further stated that on 9-1-1999 accused Sango took police and Mashirs to the place of incident and dug out the sand at a distance of six feet from the place of recovery of dead body. The blood-stained sand was found there which was secured and accused Sango thereafter dug out a nearby place from where an amount of Rs.8,400 and some chits of accounts of goats were discovered. These articles were secured under Mashirnama.
34. He has further stated that both the accused produced their blood-starned clothes. Accused Sango produced spade and hatchet. On 12-1-1999 confessions of both the accused persons were recorded by Civil Judge and F.C.M., Mithi. He subsequently, dispatched the blood-stained earth, clothes, hatchet and spade to the Chemical Examiner at Karachi. He has produced the report of Chemical Examiner as Exh.18/A. The report of Chemical Examiner contains that blood-stained earth, clothes of accused Ramesh and Sango, hatchet and spade produced by accused Sango and clothes of deceased Makhan were stained with human blood. He has fully stood the test of cross-examination.
35. ' P.W.11 Krishan Kumar, Civil Judge and F.C.M. Mithi has stated that he recorded confessional statements of the accused persons after administering warnings as required under the law. In cross-examination he has conceded that he had given warnings to both the accused at one and the same time and that when judicial confession of accused Sango was being recorded, accused Ramesh was sitting in his Court/Chamber and similar was the position when confession of accused Ramesh was being recorded. At this stage, I would like to observe that the Magistrate is not at fault for this lapse because it has been stated by the Investigating Officer and the Magistrate that no chamber is available to the Judicial Magistrate. He had one room only which was being used as Court, as well as Chamber. It is for the authorities concern to provide proper chamber and Court to the Judicial Officers, without which it is impossible to perform the judicial work properly and in accordance with the law.
36. ' Now I proceed to examine the contentions raised by the learned Advocates for the parties. In the wake of evidence as narrated above I am persuaded to agree with their contention that the confession recorded cannot form basis for the conviction of accused persons. The recovery of blood-stained hatchet, spade and clothes of the accused persons supported with the Chemical Examiner's report is also of *no help to the prosecution because blood group on the clothes of deceased, the bloodstained earth and other articles have not been determined to establish that the clothes of the accused persons, hatchet and spade matched with the blood group of the deceased. After discarding of the confessional statements, which have been retracted and the corroborative evidence in the shape of blood-stained clothes of the accused persons, hatchet and spade, the only evidence remaining in the field is the discovery of dead body on the pointation of accused Ramesh and the securing of amount of Rs.8,400 and the chits, on which accounts of goats were written by the deceased, on the pointation of accused Sango. These discoveries have been fully established with the evidence of Investigating Officer and other witnesses as narrated above.
37. ' The question for consideration is whether the recovery of dead body of deceased Makhan on the pointation of accused Ramesh and recovery of the amount of Rs.8,400 and chits containing accounts of goats on the pointation of accused Sango are sufficient to sustain the conviction and sentence awarded by the learned trial Court. This question was considered by a Division Bench of this Court in the judgment authored by me in the case of Shaikh Muhammad Amjad v. The State 2002 PCr.LJ 1317. In the cited judgment the following judgments were considered:-- ' (1) Mst. Gallan v. The State 1999 PCr.LJ 647; (2) Ketab Ali v. The State 1970 PCr.LJ (Dacca) 415; (3)
38. Fareed Muhammad v. The State PLD 1959 Pesh. 12; (5) Allanditta v. The State PLD 1958 SC 290; (5)
39. Bill Moria v. The State PLD 1958 SC 313; (6) Faiz Ahmed v. The State PLD 1960 SC 8; (7) Abdul Samad v.
40. The State PLD 1964 SC 167.
41. ' In the last case cited above, a young girl was found missing from Hyderabad City and the bones skeleton of the child, pieces of clothes of the frock worn by the deceased at the instance of accused coupled with the evidence of last-seen were found sufficient to establish the charge of murder.
42. ' On the basis of evidence of recovery, capital punishment was awarded in the case of Sheikh Muhammad Amjad v. The State, which has been confirmed by the Honourable Supreme Court vide judgment reported as Muhammad Amjad v. The State PLD 2003 SC 704. While upholding the conviction and death sentence the Honourable Supreme Court observed as follows:-- "22. Further, it is noted that as per Article 40, corresponding to section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved. The information supplied by the appellant, under Article 40 ibid, relating to incriminatory articles is admissible.
23. The case of the prosecution rests upon the circumstantial evidence recoveries of incriminating articles, admissions and the appellant's written statement in his own handwriting. Now it is a settled proposition of law that death sentence can be awarded on circumstantial evidence, provided all circumstances constituted a chain and its no link is missing and their combined effect is that the guilt of the accused is established beyond any shadow of doubt.
24. In the, instant case, the prosecution has heavily relied upon last seen evidence, which though generally is regarded as a weak evidence, yet, capital punishment can be awarded if an unbroken chain of circumstances from the stage of last seen evidence till death of the victim is established by conclusive evidence.
25. The deceased was last seen with the appellant on 29-7-2001 and this was established by the testimony of Sam Khan P.W., who was a waiter in Marriott Hotel."
43. ' The Honourable Supreme Court while upholding the conviction and sentence referred to several other judgments as well, from Pakistan and Indian jurisdiction.
44. ' An appraisal of the prosecution evidence shows that the prosecution witnesses have fully established that the dead body of Makhan was recovered on the pointation of accused Ramesh and the amount of Rs.8,400 as well as chits on which accounts of goats were written were recovered at the instance of accused Sango. These places were not known to the Investigating Officer and the witnesses and the discoveries at the pointation of the two accused persons lead to the irresistible conclusion that both the accused persons were involved in the murder of deceased Makhan. It is, therefore, held that on the basis of discoveries made on the pointation of accused persons the learned trial Court was fully justified in awarding the conviction and sentence impugned in this appeal. The impugned conviction and sentence is not open to exception, which is hereby upheld and the appeal stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.