1. ' G. SAFDAR SHAH, J.-On 23-7-1975, at 2-00 a.m., Ghulam Muhammad and his wife Lal Khatoon were murdered in the house of P. W. Muhammad Umar Jogro (the father of Ghulam Muhammad) in village Issa Khan Theoo, Taluka Nawab Shah, District Dadu, P. W. Muhammad Bakhsh, who is the cousin of deceased Ghulam Muhammad, travelled to the Thariri Mohabbat, Police Station, situated at a distance of 12 miles, and lodged the F. I. R. Of occurrence to the following effect :- "Complaint is that the house of Muhammad timer Jogro is to the west of my house where Muhammad Umer and his sons Ghulam Muhammad and Niazali are residing together. Last night Ghulam Muhammad and his brother Niazali exchanged harsh words to each other on matrimonial affairs and made quarrel. Their father Muhammad Umer intervened them and I also samjhaod them. On 23-7-1975 I was sleeping in my house that at about 2-00 a.m. Suddenly there were cries of men and women in the house of Muhammad Umer. I immediately went towards their house and saw in the light of moon that Niazali had a spade in his hand and giving blows to his brother Ghulam Muhammad and brother's wife Mst. Lal Khatoon with spade. I challenged Niazali.
2. Muhammad Umer and his son's wife Mst. Hakimzadi wife 'of Niazali were crying. On my challenge Niazali ran towards north with spade. The neighbourer Soomar son of Ali Murad and Muhammad Hussan son of Sulleman Jogras also came there. They saw that Ghulam Muhammad and MI. Lal Khatoon were lying on a cot and injuries were on their month and face. Blood was oozed from injuries. In the meantime Ghulam Muhammad had died. Mst. Lal Khatoon had spoken with us and said that her husband's brother Niazali had given blows to her and her husband Ghulam Muhammad and you are told by me that you might not lost our murders else we would hold you on the day of doomsday. After a clock Mst. Lal Khatoon had also died."
3. ' The F. I. R. In question was recorded by S.
1. P. Muhammad Sadiq (Exh. No, 20) who thereafter proceeded to the scene of occurrence. On arrival at the scene of occurrence, he conducted the usual investigation, recorded the statements of Muhammad Hassan, Muhammad Soomar, Mst. Hakimzadi (the wife of the appellant) and Noor Muhammad who also produced before him the appellant who was wearing a blood-stained bushshirt. Muhammad Sadiq accordingly arrested the accused and recovered from his person the said blood-stained bushThirt vide the usual memos. Which were attested by Gambo Khan as one of the Masheers. After his arrest, the appellant is said to have volunteered to produce the weapon of offence, namely, the spade with which he had murdered his brother and sister-in-law, but since it had already become dark, Muhammad Sadiq took him to the Police Station. On the following day, Muhammad Sadiq produced him before the Mukhtar-i-Kar and F. C. M. Mehar for getting recorded his confessional statement, and after the same was eventually recorded his custody was again entrusted to Muhammad Sadiq. On 25-7-1975, therefore, the appellant is said to have produced before Muhammad Sadiq in the presence of Masheers, the crime weapon namely, the spade from a ditch situated at a distance of about 10.15 paces from his house which was taken into possession by him through the usual memo. After completing the investigation thus, Muhammad Sadiq challaned the appellant to the Court of the Sessions Judge, Dada, to stand his trial under section 302, P. P. C. For the double murders of his brother Ghulam Muhammad and his sister-in-law Mst. Lal Khatoon. After his trial, the learned Judge found him guilty, accordingly convicted him and sentenced him to death as well as a fine of Rs, 1,000 and in default to one year's R. I. His appeal in the High Court of Sind at Karachi, to which the learned trial Judge had also made a reference under section 374, Cr. P. C. Having failed, the appellant filed a jail petition seeking leave to appeal against the judgment of the High. Court. By the order of the Court, dated 23-8-1978, leave was accordingly granted to him, as it was noticed : "(1) That none of the P.Ws., who were not even declared hostile, had supported the case of the prosecution ;
(2) That the High Court had relied on the retracted judicial confession made by the appellant, as in its view the same received satisfactory corroboration from the extra-judicial confession made by him before P. W. Noor Muhammad, as well as from the recovery of the bloodstained bushshirt from his person, although the Masheer of the recovery memo., namely, Gambo Khan had not supported the prosecution ; and
(3) That P. W. Noor Muhammad, who claimed to be the Nekmard of the village had not been examined during the investigation of the case, and so objection was taken to his evidence on behalf of the appellant but the said objection was repelled."
4. ' We have heard Mr. Sadiq Muhammad Warraich, the learned counsel for the appellant and Mr. Ibrahim Memon, the learned Advocate-General, Sind, for the State. Now in the trial Court, the prosecution relied on the eye-witness account furnished by P. Ws. Muhammad Umar, Muhammad Bakhsh, the corroborative evidence of Muhammad Soomar, Muhammad Hassan, Noor Muhammad and Masheer Gambo Khan; it also relied on the retracted judicial confession made by the appellant, his extra-judicial confession made by him before P. W. Noor Muhammad; on the recovery of the crime weapon, namely, the spade, the blood-stained shirt recovered from him by the Investigating Officer and the medical evidence.
5. ' The learned counsel for the appellant has taken us through the evidence of the witnesses and what we have noted is that except for P. W. Noor Muhammad none of them have supported the case of the prosecution. Mr. Ibrahim Memon, the learned Additional Advocate-General conceded this position in which behalf the finding recorded by the learned trial Judge, in paragraph 14 of his judgment, clearly supports him. The learned trial Judge, with whom the High Court has agreed however, took the view that since P. Ws. Muhammad Umar and Muhammad Bakhsh were the blood relatives of the appellant, and P. Ws. Muhammad Soomar and Muhammad Hassan his caste- fellows they had evidently suppressed the truth in an attempt "to save the accused from the clutches of law." In the case of P. W. Gambo Khan, however, the learned trial Judge did not discover any such relationship or interest with the appellant, but even so he relied on the contents of Masheernama (Exh. 14), to which he was an attesting witness, and through which Mashirnama the crime weapon, namely, the spade, as well as the blood-stained shirt of the appellant were recovered by S. i. P. Muhammad Sadiq, although the said document as well as his signatures thereon were repudiated by the witness. Furthermore, he realised on the retracted judicial confession of the appellant, his extra-judicial confession made by him before P. W. Noor Muhammad, the medical evidence, and consequently felt satisfied that the prosecution had succeeded to establish its case against him beyond reasonable doubt.
6. ' Now before dealing with the said pieces of evidence, it would be proper to deal first with the evidence of P. W. Noor Muhammad, as the learned trial Judge as well as the High Court has believed him because he was an Advocate by profession, enjoyed the reputation of respectability and was also the Nekmard of the village and so, according to them, the appellant must have naturally approached him and made before him a clean breast of his foul deed. The admitted position however, is that Noor Muhammad had not been examined by Muhammad Sadiq during the investigation of the case nor indeed was his section 161, Cr. P. C. Statement recorded. The record would show that Noor Muhammad appeared on the scene for the first time in the trial Court and claimed that being the Nekmard of the village the appellant was brought before him by Muhammad Hassan, Muhammad Soomar, Achar and few others and admitted to have murdered his brother and sister-in-law. After admitting his guilt, he therefore, took the appellant to Thariri Mohabbat Police Station and produced him before S. I. P. Muhammad Sadiq.
7. ' In his cross-examination, however, Noor Muhammad admitted that it was his uncle, named, Hayat Khan Thebo who was the Nekmard of the village, but the High Court seems to have taken no notice of the said admission. Normally, this omission on the part of the High Court could have been ignored, but in the context of the rest of his evidence, the same seems to be important. It is his own claim that he was an Advocate by profession and yet it did not occur to him to get his section 161, Cr. P. C. Statement recorded by Muhammad Sadiq whilst handing over to him the custody of the appellant. Similarly, it is inconceivable that when the appellant appeared before Muhammad Sadiq he found the bushshirt worn by him to be smeared with blood, when Noor Muhammad himself did not notice any blood stains on the said bushshirt. As if all these omissions on his part were not enough to discredit his testimony, specially when he was an Advocate by profession, the evidence of Muhammad Sadiq completely destroys his credibility. The evidence of Muhammad Sadiq is that. Noor Muhammad had 'produced the appellant before him in the village in which behalf Masheernama (Exh. 13) supports him, yet Noor Muhammad claimed to have done so at the Police Station. This being the nature of his evidence, to the analysis of which the High Court with respect does not seem to have paid proper attention, it is difficult to agree with its conclusion that "The S. H.
0. Has supported the witness that the appellant was produced before him by the witness, Since' the witness is an advocate, a Zamindar and also the nekmard of the appellant's village, it is but natural that he must have questioned the appellant prior to producing him before the Police. It is common knowledge that in the rural areas of Sind, accused do approach their nekmards and Zamindars for being taken to the police in the hope that they would intercede with the police on their behalf. The evidence of the witness, in our opinion, is natural and true and we find no reason to doubt the same".
8. Now excluding the evidence of Noor Muhammad from consideration,l the only evidence left against the appellant is, his retracted judicial confession, his blood-stained shirt recovered by Muhammad Sadiq, the crime weapon, namely, the spade and the medical evidence. In so far as his retracted judicial confession is concerned, the trial Court as well as the High Court were conscious of the fact that the same could not form the basis of the conviction of the appellant unless it received the required corroboration. It has already been noted that P. W. Garnbo Khan who was the attesting witness of the Masheernama, through which the said articles had been recovered, has totally repudiated the case of the prosecution'. Surprisingly, however, he was not only not declared hostile but not a single question was put to him in cross-examination to the effect as to how after having admitted his signatures on Masheernama Exh. 14, he could, possibly repudiate the contents of it or the case of the prosecution. The learned trial Judge was evidently aware of this difficulty but he attempted to overcome the same by relying on Israr Gul v. The State
(1) without realizing that the facts in that case were entirely distinguishable. In that case the two prosecution witnesses, namely, Hamid Gul and Mehmood were found to have attempted to damage the case of the prosecution but it was noted by the High Court that "The appellant shifted his stand from time to time but he did not deny at any time his presence in the mosque at the time of the murder of his uncle". It was in this context that the learned Judges of the Division Bench in that case observed, that "it is erroneous to consider that the statement of a prosecution witness in spite of its proved falsity hinds the prosecution because he comes from the prosecution camp unless he is declared hostile to show that he has deserted the prosecution. If the statement of such {{FOOT NOTE}} (1) PLD 1963 Posh, 124 {{FOOT NOTE}} ' a witness is false in contrast to the other evidence in the case which is true. It has to be ignored without leaving any effect on the incidents of the prosecution case as borne but by dependable and untrustworthy evidence". In the case in hand, the appellant retracted his judicial confession at the earlier stage of the proceedings, denied to have gone to Noor Muhammad and admitted before him his guilt and also denied to hav produced before Muhammad Sadiq the weapon of offence, namely, the spade or that the bushshirt recovered from him was smeared with blood. D It would, therefore, follow that unlike the Peshawar judgment, in which the appellant did not deny his presence in the mosque, where his uncle was murdered, the appellant herein denied his involvement in the crime and so the said judgment had no application to the facts of this case.
9. Quite apart from this position, the retracted judicial confession of the appellant could not be said to be corroborated by his retracted extrajudicial confession made by him. Before P. W. Noor Muhammad. In this E view of the matter, the only other evidence which could have len corroboration to his said retracted confession would be his blood-stained shirt and the crime weapon, namely, the spade. But these articles also could not be used for the purpose of corroboration, firstly, because P. W, Gambo Khan the attesting witness of the Masheernama through which they were recovered, has totally disowned them; and secondly, because a person of the standing of Noor Muhammad, who was an Advocate by profession, had not noticed any blood stains on the bushshirt of the appellant when he produced him before Muhammad Sadiq.
10. ' The net result of the whole discussion, therefore, is that it is a case of no evidence against the appellant, and although one may be morally convinced of his guilt that alone could not form the basis of his conviction. In this behalf, it may as well be proper to reproduce the following passage from page 30 of the Law of Evidence by Monir, which contains the salutary principle relating to the administration of justice :- "However morally convinced a Judge may feel as to the truth of a particular fact, unless there is legal proof of its existence, he cannot take it as proved. Conjectures and suspicion cannot take the place of proof, and the Court's decision must sent not open suspicion but upon legal grounds established by legal testimony. Once the evidence comes before the Court and stands the rest of severe legal scrutiny, that evidence constitutes a legal proof. Then the dividing line between such proof and moral conviction vanishes. It is, however, the duty of the Court in each case to concentrate its attention on the relevant and admissible evidence and then to decide whether or not a particular fact has been proved from the evidence adduced in the case."
11. ' Before parting with his judgment, we would like to observe that Mr. Ibrahim Memon, the learned Additional Advocate-General also candidly conceded that the conviction of the appellant is based on no evidence whatever. We, therefore, allow this appeal, set aside the conviction of the appellant and direct that he shall be released forthwith unless required in connection with some other case.