1. SAJJAD ALI SHAH, J.---This acquittal appeal has been filed against the judgment dated 8th August 1975 of the learned Sessions Judge. Tharparkar at Mirpurkhas, whereby respondent Tufail Muhammad, son of Abdul Ghafoor has been acquitted in a case under section 302, P.P.C. Rahim Khan, son of Karim Khan, complainant in the trial proceedings, has filed revision application under section 435 read with sec--tion 439, Cr. P. C. In which prayer is made for setting aside the impugned judgment. We propose to decide both the appeal as well as revision application by this common judgment shortly stated prosecution case is that deceased Ramzan aged about 13-14 years was son of Moula Bux but was adopted by Allah Bux, who is son of P. W. Haji Ismail. Deceased Ramzan had his one leg partially deformed and used to walk with limping. He used to study in his school at Dhoro Naro and lived in the house of a relative by name Suleman and used to come and visit the house of P. W. Ismail situate in Deh 25-A, Taluka Samaro, almost every week. P. W. Janoo who is maternal-cousin of P. W. Ismail, has two daughters and one of them was engaged to deceased Ramzan. The other daughter of P. W. Janoo was engaged to Abdul Baqi, brother of respondent Tufail Muhammad father of respondent along with his family had migrated from Jacobabad and settled in Dhoro Naro about 1 I years before the incident. P. W. Haji Ismail provided land to Abdul Baqi and his brother respondent Tufail Muhammad for cultivation. Res--pondent Tufail Muhammad was interested in the gill who was engaged to deceased Ramzan and had approached P. W. Janoo with a request that she may be married to him instead of Ramzan but his request was turned down. On 7th May, 1974, P. W. Rahim Khan was going to Dhoro Naro and at about 10-00 a.m. When he crossed railway bridge at a distance of about 2 furlongs from his village, he saw a body lying in the bed of 'Dhoro'. He found one cap lying beside the body and further observed there was bleeding and fresh oozing from his mouth and nostrils. He went and found that the dead body was of Ramzan. He went to Dhoro Naro and informed P. W. Haji Ismail and then went to police outpost at Dhoro Naro. The report was registered under section 147, Cr. P. C. In which he stated that Ramzan might have fallen down from the railway bridge and died. In the meantime Gul Hassan S.I. -Police who registered report came to the place of occurrence and found the dead body in the bed of dry ldhoro' under a railway line bridge. There were scratches on the body and marks of violence on his neck. There was bleeding from the mouth and the nose. He prepared inquest report and sent the dead body to the hospital for post-mortem examination. On 8th May, 1974, he recorded statement of witnesses Haji Ismail, Janoo, Allah Bux, Ali Khan, Suleman, Hashim P.
2. C. And Jamal-ud-Din. The name of respondent Tufail Muhammad appeared as a suspect in the statements of these witnesses. In the meantime after the post-mortem examination the dead body was buried and people started coming in for condolence. P. W. Ali Khan Samo came to the house of Haji Ismail for condolence and informed him that on the day of incident he had seen Ramzan sitting on the bridge and on inquiry Ramzan informed him that he was waiting for respondent Tufail Muhammad, who had gone nearby to ease himself. P. W. Jamal-ud-Din also came for condolence and informed Haji Ismail that on the day of incident he had seen both Ramzan and respondent Tufail Muhammad sitting on the bridge. Both these witnesses had further informed Haji Ismail that at that time Ramzan had with him a small bundle and tiffin box. P. W.
3. Suleman Mehar, a shopkeeper, informed Haji Ismail that deceased had come to his shop to purchase some articles and further told him that he had to collect clothes from a tailor master and then would go to his village. On that day in the evening respondent Tufail Muhammad came to Haji Ismail bowed down on his feet and confessed that he had murdered Ramzan as he had not approved of his engagement with Janoo's daughter and entreated for forgiveness. Allah Bux and Janoo were present with Haji Ismail when this Extra Judicial confession was made by the respondent. These three witnesses detained respondent and later took him to the police station. In the meantime medical report reveal that it was a case of homocidal death hence on 10 May, 1974, Gul Hassan S.I. Took up further investi--gation of the case on those lines. On that day Tufail Muhammad respondent was produced before him by P. Ws. Haji Ismail, Allah Bux and Janoo and was taken in custody. The Investigating Officer recorded statements of these witnesses.
4. Respondent Tufail Muhammad volun--tarily pointed out the place in jungle at about 15 paces from the railway bridge where he left the dead body. The pencil was found there and there were some marks of dragging. The respondent then led the police to Soofi minor and from under water produced one bundle and slipper of the deceased. The bundle contained ladies clothes, a tin containing tea and tiffin box. These articles were seized in presence of mashirs. On 11th May, 1974, respondent was produced before Mukhtiarkar and F.C.M., Umerkot, who recorded his judicial confession. After comple--tion of the investigation the respondent was challaned for offence under section 302, P. P. C.
5. Prosecution has examined 12 witnesses in support of its case. P. W. 3 Ali Khan and P. W. 4 Jamal-ud- Din are witnesses of last seen. P. W. 6 Suleman is the shopkeeper from whom deceased purchased articles, P. W. 9: Ganesho is the tailor-master from whom deceased collected ladies clothes, P. W. 1 Rahim Khan reported the matter to the police. P. W. 2 Ismail has deposed as stated above. P. W. 5 is Janoo whose daughter was to be married to the deceased and in whose presence extra judicial confession was made by the respondent. Other witnesses are formal.
6. Before the trial Court in his statement under section 342, Cr. P. C. The respondent has denied the allegations of the prosecution and resiled from his judicial confession on the ground that it was .Not voluntary and truthful and he was compelled to make the same under the threats of police that if he did not make the confession his mother and sisters would be disgraced and humiliated. Itth was further stated by the res--pondent that Janoo refused to give his daughter in marriage to his brother Abdul Baqi and on account of matrimonial differences he was falsely involved in the case.
7. We have heard the learned counsel and have carefully examined the record in this case. There is no ocular testimony and the whole prose--cution case hinges upon different pieces of evidence which include evidence of last seen, extra judicial confession, judicial confession, motive and pointing out the place of incident by the respondent from where some articles belonging to the deceased were allegedly recovered. On 7th May, 1974, at 1-15 P. W. 1 Rahim Khan, maternal uncle of deceased, made a report to the Police under section 174, Cr. P. C. About the discovery of the dead body, which was at that time considered as accidental death. P. W. 12 Gul Hassan A. S. I. After recording report of Rahim Khan in the station diary rushed to the spot and found the dead body with scratches and marks of violence on the front side of the neck. He also found blood and froth oozing from mouth and nostrils. The Investigating Officer prepared inquest report and sent the dead body to the hospital for post-mortem examination. The perusal of the F.I.R. Shows that Rahim Khan went near the dead body and observed and stated so in the report that he found blood and froth coming from the mouth and ear of the deceased and also he found dragging marks near the dead body. The Investigating Officer was more specific in his observation of the dead body and found marks of violence on the front side of the neck but it appears that both P. W. 1 Rahim Khan and Investigating Officer were of the view of that it might be an accidental death and deceased might have fallen down from the railway bridge According to F.I.R. On the following day, that is, 8th May, 1974, information was received from Medical Officer, Umerkot that the cause of death was due to asphyxia caused by throttling or strangulation, hence he amended the section in F. I. R. And took the investigation of the case as that of a murder case. This is so stated in F.I.R. Exh. 29 on Vie record which is ascribed by S.H.O. Umerkot. The inquest report, Exh. 32 on the record also shows that it was prepared and signed by the Medical Officer on 8th May, 1974. The Investigating Officer Gul Hassan has deposed before the trial Court that on 8th May, 1974, he had recorded statements of Haji Ismail, Janoo, Allah Bux, Ali Khan, Suleman and Jamal-ud-Din and from their statement' it transported that Tufail Muhammad, the present respondent, was a suspect in the crime. In the same deposition Investigating Officer has narrated further that on 10th May, 1974, he was informed telephonically by S. H. O. Umerkot, that medical report had revealed that it was not an accidental death but a murder case. It is, thus not clear as to when the investigating Officer actually came to know on the basis of medical report that it was not a case of accidental death but- murder and whether it was on 8th May, 1974 as stated in F.I.R on 10th as deposed by the Investigating Officer before the trial Court. In any case the surprising part is that according to the Investi--gating Officer he recorded statements of the witnesses mentioned above on 8th May, 1974, and the said witnesses expressed doubt about the complicity of respondent Tufail Muhammad in this crime. The statements of these witnesses recorded by the trial Court indicate that on 8th May, 1974, they had no such suspicion of clue. P. W. 3 Ali Khan is the first witness who had seen deceased sitting alive on the bridge and on inquiry deceased informed that he was waiting for Tufail Muhammad who had gone to ease himself at 5-00 p.m. On 7th May, 1974. After that this witness went away to his village. It is further testified by this witness that on the next day he heard the news of death of Ramzan and on the following day of that he went to Haji Ismail to offer condolence, and informed him about this seeing the boy sitting on the railway bridge two days before. This shows that information was conveyed by this witness to Haji Ismail on 9th May, 1974. It is surprising that how it is stated by the Investigating Officer that on 9th May, 1974 he recorded statement of Ali Khan in which suspicion was expressed that Tufail Muhammad respondent was a suspect in the crime. On the other hand the facts of the case as brought on the record indicate that the story is built up after Ali Khan conveyed his limited information and thereafter on the same day Jamaluddin who also happened to pass by that railway bridge and saw deceased and respondent both sitting on the railway bridge and he informed P. W. Ismail. P. W. 4 Jamaluddin has deposed before the trial Court that after seeing deceased and respondent sitting together on the bridge he made inquiry from them and they informed him that they were taking rest there and were on their way to their village, he went away to Mirpur Khas and passed two nights at Mirpur Khas. He returned to his village and cot the news of the death of Ramzan and went to the orak of Haji Ismail to offer condolence where he informed him about seeing together deceased and respondent. It is obvious that even P. W. Jamaluddin informed Haji Ismail on 9th May, 1974. Even P. W. 2 Haji Ismail has stated before the trial Court that on the following day of incident the dead body of Ramzan was buried after post-mortem examination and on the following day Ali Khan Samo informed him as stated above and on the next day of that P. W. Jamaluddin came for condolence and informed him as stated above.
8. According to P. W. Ismail, Ali Khan informed him on 9th May, 1974 and Jamaluddin informed him on 10 May, 1974 P. W. 2 Ismail is father of Allah Bux who had adopted deceased Ramzan, P. W. 3 Ali Khan does not seem to related to Haji Ismail but lives in a village at a distance of one mile from the village of Haji Ismail P. W. 4 Jamaiuddin is brother of wife of P. W, Janoo and he is hari of Haji Ismail and also his distant cousin. The next piece of evidence is also on similar lines and P. W. 9 Ganesho deposed before the trial Court that deceased Ramzan took delivery from him of stitched clothes on the day of occurrence. He has not said anything more so his evidence is of no use to prosecution. In these circumstances no reliance can be placed on the evidence of last sepnt which does not appear to be satisfactory.
9. So far the evidence of extra judicial confession is concerned, P. W. 2 Haji Ismail has stated before the trial Court that on 9th May, 1974 res--pondent Tufail Muhammad came to him and admitted his guilt in presence of Jan Muhammad and Allah Bjx that he had murdered deceased Ramzan and it was a mistake made by him and requested that he should be forgiven. Both P. W. Jan Muhammad and Allah Bux are highly interested. Jan Muhammad is the person whose daughter was engaged to the deceased and Allah Bux, who had not been examined, is son of P. W. Haji Ismail and had adopted deceased Ramzan as his son. The versions of both these witnesses, namely Haji Ismail and Jan Muhammad alias Janoo are inconsistent with each other. According to Haji Ismail respondent confessed that he had murdered Ramzan by mistake and sought forgiveness.
10. According to P. W. Janoo, respondent came in the evening and bowed over the feet of Haji Ismail and confessed that he had murdered Ramzan and begged forgiveness. Haji Ismail questioned him as to why he had murdered Ramzan, upon which respondent replied that be had murdered him in order to marry the girl, who was engaged with him. This extra judicial confession, of which, no exact words are given by the two witnesses, is further inconsistent with the judicial confession which is retracted by the respondent. According to judicial confession respondent was arrested on 9th May, 1974 and his judicial confession was recorded on 11 May, 1974. There is no explanation for this delay. In this judicial confession he does not say anything about sitting on the railway bridge, which falsifies the evidence of last seen. It is further stated in the confessional statement that he (respondent) concealed himself in Khabar tree and when Ramzan passed by he caught hold of him from his back side and put one hand on his chin and the other hand on his head and turned his head with such great force that the spinal cord broken. He kept aside the dead body under the tree and at time of sunset he threw it under the bridge. It is further stated by him in the confession that he went away to his house and on the next day Mst. Hafii found the corpse and informed the villagers. Thereafter many persons including Allah Bux and Janoo came to the spot and handed over the dead body to the police. They detained him and he narrated the facts to them then the Police arrested him. He does not talk about extra judicial confession made by him before Haji Ismail in presence of the two witnesses as the prosecution case states. In the post-mortern report the doctor does not say that the spinal cord was broken. The respondent has resiled from his judicial confession and it does not get support from the evidence collected and produced by theth th prosecution. In fact there is no evidence by the prosecution which tends to connect the respondent with the commission of the crime. In the absence of such evidence conviction cannot be recorded on the mere evidence of motive. Prosecution has failed to prove its case against the respondent beyond doubt hence we uphold the impugned judgment and dismiss the acquittal appeal.