' G. M. SHAH, J.-The appellant was tried alongwith one Haroon, by the learned III Additional Sessions Judge Sukkur, for offences under section 302 read with section 34, P. P. C., for intentionally committing the murder of Shakir, on 23rd May of 1976. By the judgment dated April 26, 1978, the learned Judge gave benefit of doubt to co-accused Haroon and acquitted him ' whereas he convicted the appellant and sentenced him to imprisonment for life and to pay a fine of Rs, 5,000 or in default to suffer R. I. For six months more. Out of the fine, if realized, the sum of Rs, 3,000 was directed to be paid to the heirs of the deceased, as compensation, under section 544-A, Cr. P. C.
The appellant has impugned the judgment of conviction by filing this appeal.
2. The version of the prosecution case, briefly, is that out of the four brothers, namely Shahabuddin P. W. 4, Anis Ahmed P. W. 5, Abdul Tahir and Shakir, the deceased was running an Electric Decoration Shop, known as "Shaki Electric Decoration Service" in Sarafa Sukkur. Abdul Tahir, is the Income-tax Practitioner at Sukkiir ; whereas the fourth brother Shahabuddin is A. S. I., Intelligence Branch, and was posted at Quetta in those days. He had come only two days prior to the day of occurrence to attend a civil case at Sukkur.
3. About 20-25 days prior to the day of occurrence, when Abdul Tahir was sitting in his office alongwith his friend, Jaffar Ali Ansari, also an Income-tax Practitioner, Muhammad Shafi, father of appellant Saleem, came there and complained to him, that he should stop the deceased Shakir, meeting his son Saleem, because the deceased used to commit sodomy on his son Saleem, Abdul Tahir agreed to advise the deceased. At the same time, he requested Muhammad Shafi to also stop his son, appellant Saleem, from meeting co-accused Haroon, who was a person of questionable character. It is alleged that Muhammad Shafi got enraged and threatened, that if the deceased was not stopped from meeting the appellant, he would get him murdered.
4. On 23-5-1976 at about 11-30 a.m. The deceased went to Zulfiqar Cycle Works owned by Zulfiqar and his brother Iftikheir Ahmed (P. W. 9) and took the cycle, bearing No, 9, on hire. Such an entry (Exh. 19) was made in the Register kept at the shop, by Iftikhar Ahmed himself. The deceased was alone when he went to the cycle shop. The deceased was already known to the owner of the cycle shop, being the brother of Abdul. Tahir, Inoome-tax Advocate, The deceased often used to take the cycle, on hire from this shop.
5. On the same day (23-5-1976) Ghulam All (P. W. 1) was going on his cycle by the Nara Canal Inspection Path. He reached near the turning of the Path at about 1 or 2 p.m. He saw a dead body of a young boy, with bleeding injuries, lying there. He got down from the cycle and went near the dead body. He saw a cycle, lying in between the legs, of the dead body suggesting that the cyclist was shot, while riding the cycle. Since Ghulam All lived in Village Baghoo at a distance of about one furlong from the Nara Canal, he first went to his village and left the articles at home. He then went to the Police Station Kandhro and lodged the Report, (Exh. 7). The vardat was about 7-8 miles from the Police Station. The Police Party accompanied him to the place of occurrence and inspected the vardat. No footprints were available near the dead body, as the ground on the inspection Path was hard. There were no wheel marks of another cycle near about the dead body, mashirnama of the vardat was prepared (Exh. 11). The cycle mudguard had the name of "Zuffigar Cycle Works" written on it. A Police Officer, from P. S. Kandhro, contacted the Zuffigar Cycle Shop, and obtained the address of the deceased. The cycle register was inspected and checked. It was seized by the police under the mashirnama Exh.
19. The Police contacted Shahabuddin (P. W. 4) elder brother of the deceased at about 4 p.m. On the same day. Shahabuddin alongwith his other brother Abdul Tahir (P. W. 6) accompanied the police to the vardat. They identified the dead body having fire-arm injuries. The dead body was despatched through P. C. Pir Bux to the hospital for post-mortem. The police recorded the statements of Shahabuddin; Abdul Tahir, Iftikhar, Anis Ahmed and one Ghufran on the same day.
Since the culprits had escaped, they could not immediately be apprehended.
6. On 26-5-1976 appellant Saleem was shown to have been arrested near Mehran Hotel Sukkur. His personal search was taken ; but nothing incriminating was found on his person. (mashirnama Exh.
27). The appellant had led the police party to the Place of occurrence, for pointing it out as the place for commission of the offence which the police had already visited as is stated above.
7. On 27-5-1976, the appellant was produced before the Mukhtiarkar and F. C. M. Bohri, for recording of his judicial confession which reads as under :- "I have not been given any inducement. Deceased Shakir was my friend. Haroon was also my friend. Shakir used to defame me. I and Haroon told Shakir to accompany us, so that we may get him an amulet. I had my cycle, Haroon accompanied me on the cycle. Shakir hired the cycle. We told Shakir that there was a Molvi towards that side and that he will get amulet from there.
Thereafter we went along Nara Canal. We covered some distance and then I sat for urinating.
Haroon caught hold of my cycles Shakir was standing with his cycle. After urinating I stood and took out my revolver. I fired seven bullets at Shakir. After killing Shakir, I and Haroon both went back."
8. On 28-5-1976 co-accused Haroon was arrested. On' 29-5-1976 a licensed revolver, in the name of Sharf Muhammad father of the appellant Saleem, was produced by Chiraghuddin, grandfather of the appellant. It was produced with 10 live cartridges and the license of the revolver as per Exh.
30. After completing the investigation, the case was put up in the Court for trial., The revolver was sent to the Ballistic Expert, who reported that the revolver was not in working order.
9. The autopsy on the dead body was performed by Dr. Dwarkadas (P. W. 10) on 23-5-1976. He found the following external injuries on the person of the deceased :
(1) One, lacerated wound it in diameter through and through with charring present around the wounds.
(2) One lacerated wound diameter on left occipital region communicating With injury No, 1.
(3) One lacerated wound j." in diameter on the right side of the chest with charring in the mid- axillary region.
(4) One lacerated wound with charring r in diameter on right upper arm through and through. This is wound of entry.
(5) One lacerated wound in diameter on right upper arm on its medical aspect communicating with Injury No, 4.
(6) One lacerated wound diameter on the dorsum of left hand.
(7) Lacerated wound in diameter left of the chest mid-axillary line.
(8) Lacerated wound in diameter on the left upper arm through and through with charring around the injury.
(9) Lacerated wound r in diameter on left or upper arm communicating with Injury No,
8. This is a wound of exit.
' From the injuries and the condition of the body, the doctor was of the opinion that the death was caused due to shock and hemorrhage as a result of Injury No, 1 individually and all the injuries collectively. The injuries were caused due to discharge from a fire-arm. The probable time between the death and the injuries was instantaneous and the time between the death and the post- mortem was 7 hours,
10. The defence of the appellant, at the trial, was of denial. He further added that he had been falsely implicated in the case, on account of enmity of the family of the deceased. He had filed the certified copy of the F. I. R. (Exh. 38) lodged by his father Muhammad Shafi, in the year 1964, against Muhammad Ashraf and his other relatives. He further contended that he was coerced by the police to make the judicial confession, because his father and uncle were detained by the police and after their bail applications Exhs. 39 and 40 were moved in the Court of Sessions, they were released. It was further stated by him that deceased Shakir had many enemies. He was once before attacked by some unknown persons on 8-11-1975 for which a case under section 307 was filed (Exh. 41).
11. We have heard the learned counsel Mr. Muhammad Hayat Junejo, appearing for the appellant and Mr. Manzoor Hussain on behalf of the State. They have taken us through the entire evidence.
The prosecution case rests on the following pieces of evidence :-
(1) Judicial confession.
(ii) Motive.
(iii) The appellant last seen together with the deceased.
' Dealing with the confession, first it is observed that the appellant had stated therein that the deceased was friendly with him, which fact, has, even otherwise come on the record, through the evidence of Anis Ahmed (P. W. 5) and Abdul Tahir (P. W. 6) both brothers of the deceased. Anis Ahmed had admitted in his cross-examination that the deceased Shakir, frequently used to go with the two accused. They had no enmity with the accused persons, therefore, they had no suspicion against them. Abdul Tahir (P. W. 6) has stated that Muhammad Shafi, father of the appellant, had come to him about 20 or 25 days before the occurrence at about 9 p.m. When he was sitting in his office, and complained to him that he (Abdul Tahir) should stop the deceased Shakir from meeting the appellant. The reason for stopping the deceased was that he used to commit sodomy on the appellant. From this evidence, it is clear that the appellant himself was so deeply involved with the deceased that even the father of the appellant had sought assistance of the brother of the deceased to stop them both, from meeting each other. The appellant himself had no enemity with the deceased, nor did his brothers suspect the appellant and the acquitted accused. With this background, if the confession is scrutinised, it would appear that there are some inherent improbabilities in the confession, which cast suspicion on its truthfulness. The confession further reads, "the deceased Shakir used to defame him. Thereafter, he and the acquitted accused had asked him to go with the appellant for the purpose of his "Taweez". The reason for taking the deceased for `Taweez' for him, when he (deceased) used to defame the appellant, does not fit in the context of events. The deceased was older in age being of 20 years than the appellant who has given his age as 19 years. While the deceased was defaming the appellant, he would not be taken by the appellant, on the false pretext of getting him the `Taweez' from a Moulvi who was residing in that direction, as though the deceased would not know of such a Moulvi. The deceased would never have accompanied the appellant particularly for a "Taweez", if he was defaming him. The confession also mentions that the appellant had his own cycle and the acquitted accused was on his cycle ; whereas the deceased had hired a cycle. In his cross-examination Anis Ahmed had admitted that when the appellant and the acquitted accused had visited his shop at about 11 a.m.
On the day of occurrence, and had taken away his brother, the deceased, they had no cycles with them. Even at the place of occurrence or nearabout, around, there were no wheel marks of any other cycle, except that of the deceased. In the confession, it is finally mentioned that after urinating, the appellant got up and took out the revolver, and fired seven shots at the deceased.
The revolver was produced by Chiraghuddin, grandfather of the appellant and was a licensed one, in the name of Muhammad Shafi, the father of the appellant. It was produced with ten (10) live bullets. The revolver, with the licence and the live cartridges was secured and seized by the police on 29-5-1976, after the cause of death was given by the doctor and the confession was recorded.
The revolver was sent to the Ballistic Expert, who gave his report that the revolver was not in working condition and could not be fired. The police had neither arrested Chiraghuddin or Muhammad Shafi on any charge, nor had alleged, that after the occurrence, the revlover was intentionally put out of order. There is no evidence to explain how the revolver happened to be in possession of the grandfather of the appellant On the basis of no evidence on this point, it can safely be presumed that the same revolver could not have been used in the commission of the alleged crime. The number of the injuries, and the manner, in which the revolver was fired, seems to have been narrated on the basis of the medical opinion, which was already obtained by the police.
The facts, as narrated in the confession do not seem to be true under the circumstances of the case.
12. As to the voluntary nature of the confession there is sufficient material on the record to indicate that the making of the confession appears to have been caused by inducement, as well as, threat, given by the police to the appellant.
13. In the deposition of Anis Ahmed, brother of the deceased, he had admitted that he had seen the uncle of the appellant and father of the acquitted accused, detained by the police at the Police Station. He further admitted that they were let off by the Police, after the two accused were arrested. Exhibit 39 is the pre-arrest bail application dated 22-5-1976, filed on behalf of Muhammad Shafi, father of the appellant, who had apprehended his arrest. Since the appellant was arrested on 26-5-1976 and had also made the judicial confession on 27-5-1976, the pressure of the police on his father appears to have been withdrawn. He remained absent and the application for pre-arrest bail was not pressed. It was accordingly dismissed for non-prosecution, on 21-5-1975. It is difficult to infer from these circumstances that the appellant could have remained altogether uninfluenced, about the manner in which his father was tackled by the police.
It is not difficult to appreciate the psychological influence on the mind of the appellant, which must necessarily have exercised its persuasive effect on his mind. Under such circumstances the judicial confession made by the appellant cannot be characterized as free and voluntary. It is correct that a confession, judicial or extra-judicial, whether retracted or not, can, in law validly form the sole basis of conviction, provided the Court is satisfied and believes the confession to be true and voluntary, meaning thereby, that it was not obtained by torture or coercion or inducement. In the instant case, as has been pointed out hereinabove, there are circumstances to show that the confession was neither true nor voluntary. Last of all, the confession, being retracted one, is not corroborated in material particulars, on the issues, which are important for consideration of the decision of the case. It would not, therefore, be prudent to base a conviction on a capital charge on the strength of such a confession. The learned trial Judge has considered such pieces of evidence for the purpose of corroboration, which by themselves require corroboration to be relied upon.
14. The next piece of evidence against the appellant is the motive. On consideration of the evidence on record, it is evident that no motive has been proved against the appellant. This is a case of no motive. It can safely be said that the deceased and the appellant were close friends. There was a special immoral attachment between the two, which had caused resentment in the Mind of Muhammad Shafi, father of the appellant, who had complained to Abdul Tahir, brother of the deceased, to stop the deceased from meeting bise son, the appellant, because he was committing sodomy on the appellant. At no time, any grievance or complaint was made by either the deceased or any of his brothers against the appellant. On the contrary there is evidence of Anis Ahmed, the brothers of the deceased, that the deceased was very friendly with the appellant, who used to visit him frequently and there was no enmity between the two, to give rise to any suspicion.
Abdul Tahir and Jaffar All have spoken of the motive against Muhammad Shafi, father of the appellant and not against the appellant. Muhammad Shafi had complained to Abdul Tahir that the deceased be stopped from meeting the appellant, which implied that the father could not control his son, from disassociating with the deceased.
' Friends, involved in immoral activities have strong attachments, with each other. Out of sheer desperation, the father of the appellant, had sought the assistance of the brother of the deceased.
Muhammad Shafi had met Abdul Tahir about 20 to 25 days, before the day of occurrence. The deceased and the appellant continued meeting each other. There is no evidence on the point of motive, directly connecting the appellant with the commission of the alleged crime. In any case, motive is a matter of speculation, and cannot constitute a necessary ingredient of the offence, unless it is connected with the chain of surrounding circumstances, closely interlinked that motives becomes useful, in appreciating and evaluating the evidence in the case. There are no such circumstances present in the evidence in this case.
15. The prosecution has attempted to introduce the circumstance of the deceased having been last seen in the company of the appellant. Ghuffran (P. W. 12) was examined on this point. He has made conflicting statements as to essential facts relating to the deceased having been last seen with the appellant, that he is unworthy of reliance. Ghuffran is a donkey cart driver. He was nowhere near the vardat. He lived in Katcha Bandar Sukkur. He was returning on his donkey cart, from Khairpur, where he had gone to leave the household articles of one Ibrahim, his relative. He did not own the donkey cart, which belonged to one Rashiduddin. He was employed only as a driver. The donkey cart was expected to be driven only in Sukkur Town. He claims to have known the appellant, as well as, the acquitted accused Haroon, as they lived in his Mohalla. This statement stands falsified in the cross-examination, when he admitted that he did not know the Mohalla, where the two accused resided. To a Court question, he admitted that he had made a mistake. He had not seen the houses of the appellant and the acquitted accused. He explained further that they did not live in his Mohalla. He goes on to state that at about 11 a.m., on the day of occurrence, he was coming on his donkey cart from Khairpur. When he reached the turning of the BarrageRoad, he saw the appellant cnd acquitted accused Haroon riding on one cycle, while the deceased was on another cycle. They were seen proceeding towards Rohri side. There were no cycle-wheel marks at or near the vardat, to suggest that there were other persons on the second cycle going with the deceased. He further states that at about 6 p.m. Shahabuddin, brother of the deceased met him at Jinnah Chowk, weeping and disturbed. On inquiry Shahabuddin told Ghuffran that his brother, the deceased was murdered. At that time, Ghuffran informed Shahabuddin that he had seen the appellant and the acquitted accused Haroon, going together, on cycles. This version obviously is false, and appears to have been introduced, to bring in, the evidence of the deceased having been last seen with the appellant. This version is not stated by Shahabuddin in his evidence. The statement of Ghuffran is inadmissible, and cannot be considered against the appellant, on the point of the deceased having been last seen with the appellant.
16. The next witness on this point is Anis Ahmed younger brother of the deceased. He was running the shop together with the deceased. At about 11 a.m., on the fateful day, the appellant and the acquitted accused had gone on foot to the shop and took the deceased with them. They had no cycles with them. The deceased had no cycle either. Since the deceased frequently used to go with the appellant, as they were friends and there was no enmity between the parties, Anis Ahmed had no suspicions against the appellant. Furthermore, the deceased had gone alone to the cycle shop of Iftikhar Ahmed (P. W. 9) at about 11-30 a.m. There is no mention in the statement of Iftikhar Ahmed of the deceased being with appellant. At this moment, which is later in time, the deceased was alone. It is possible that after the deceased had gone with appellant and the acquitted accused, when he left his shop, he might have left them somewhere, and had himself gone alone, towards the place of occurrence, where no wheel marks of another cycle were noticed. Therefore, when the deceased, was last seen alive, he was alone. There is no satisfactory and reliable evidence in support of this circumstance that the deceased was last seen alive with the appellant.
17. The next piece of evidence led by the prosecution is the production of the revolver by the grandfather of the appellant. The report of the Ballistic Expert, amply proves that 32 bore revolver, as mentioned in the letter of the police, was found, "not in working order and could not be fired for test." It is, rather, strange that at the time of recovery of the revolver, police had not checked, whether it was in proper working order fit to fire. However, there is no evidence either, whether this revolver was used in the commission of the ofknce and further that at what time, it had gone out of order and whether it was intentionally rendered unserviceable, by the appellant or at his connivance, by his father and/or the grandfather. It is further, noticed that the appellant was arrested on 26-5-1976 from the gate of Mehran Hotel, Sukkur. That shows that he was very such in Sukkur Town. He was produced for recording of his confession on 27-5-1976, which was recorded at 2 p.m. On the same day But the recovery of the revolver was made, at the instance of the appellant, on 22-5-1974 at 4 p.m. And the mashirnama Exh. 30 does not mention the face. That the revolver was produced by the grandfather of the appellant. Accordingly, the production and recovery of the revolver has not legally been proved to have been made from the appellant. From the mashirnama of the vardat (Exh. 11) and the evidence of the mashirs no empties are stated to have been secured by the police from the place of occurrence. The doctor, who had performed the autopsy on the dead body also did not recover any of the bullets from the body. There is therefore no evidence connecting the revolver with the commission of the alleged crime.
18. The evidence of the three brothers of the deceased is criticised by the learned counsel Mr. Muhammad Hayat Junejo on several grounds and we find, on careful examination of their testimony, that they have stated practically nothing of incriminating nature against the appellant.
19. Shahabuddin (P. W. 4) is the A. S. I. Intelligence and was posted at Quetta at the time of occurrence. He had come in those days to his village, as he was unemployed. He had come to Sukkur, only two days prior to the incident, to attend to a civil case. He was, otherwise, living in Quetta. He is not an eye-witness, nor his version corroborates other evidence in material particulars. He was sitting in his house with his another brother Abdul Tahir at about 4 p.m., when police came and informed them to accompany the police party to identify the dead body. Both the brothers were taken to the vardat, where the dead body was lying on the inspection path of Nara Canal. They identified the body being that o their brother Shakir. He had fire-arm injuries on his person. The cycl was also found lying in between his legs. According to his statement, th deceased had left early in the morning on that day as usual, and had not returned. He was shown the appellant, whom he knew very well, as h lived in the same Mohalla and used to visit frequently their house. He categorically stated that "he could not say as to why his brother was murdered", as he did not himself know of any enmity of the deceased with the appellant. In his cross-examination he had stated that on his inquiries, his brother Anis Ahmed had informed him that the deceased had left his shop at 11-00 a.m. He further admitted that about six months before the occurrence, his brother Shakir was attacked in the Bazar by some unknown persons and a case under section 307, P. P. C. Was registered. He denied, having any knowledge, if his brother was a history sheeter or that there were reports against him lodged with the police. Then is the evidence of Anis Ahmed younger brother of the deceased, who used to run the shop, "Shakir Electric Decoration Service", in Sarafa Bazar Sukkur. He knew the appellant as he used to visit the deceased at the shop. On the day of occurrence, at about 11-00 a.m.. The appellant and the acquitted accused Haroon had come to the shop and took away the deceased with them. He did not hear the talk between them. However, the deceased had informed him that he will return soon. It was at about 5 p.m. That someone from the Mohalla had informed him that the dead body of the deceased was found near the canal. He first went to his house and then proceeded to the Hospital, where he saw the deadbody of his brother.
He admitted in the cross-examination that the deceased frequently used to go with the two accused persons. He further admitted that he nad no enmity with the accused and therefore he did not suspect them. When the appellant and the acquitted accused had gone to the shop of the deceased, they had no cycles with them. He had further asserted that he had seen the uncle of the appellant and the father of the acquitted accused Haroon detained by the police, at the police station and they were released after the two accused were arrested. This statement has not been challenged by the prosecution in any manner.
20. The last of the brothers is Abdul Tahir. P. W.
6. He is an Income-tax Practitioner and has his own office. About 20-25 days prior to the day of occurrence when he was sitting in his office at 9-0 p.m. With his friend Jaffar Ali Ansari, another Income-tax Practitioner, Muhammad. Shafi father of the appellant Saleem had come and complained to him that he would stop his brother Shakir deceased meeting his son Saleem, the appellant, because the deceased used to commit sodomy on Saleem. Abdul Tahir has further stated that the father of Saleem ultimately threatened Abdul Tahir, that if he did not stop the deceased meeting his son Saleem he would get the deceased, murdered. On the day of occurrence which was Sunday, Abdul Tahir was sitting with his younger brother Shahabuddin in his house where the police came and told them to accompany them to identify the dead body. Both Abdul Tahir and Shahabuddin accompanied the police and identified the dead body lying on the inspection path of the Canal with fire-arm injuries. The cycle was also lying there in between the legs. The police removed the dead body to the Civil Hospital for post mortem. This witness Abdul Tahir goes further to state that after this incident P. W. Abdul Salecm was called by the police to act as a witness, who had met him and told him that two days prior to this incident, he had contacted the deceased Shakir and on inquiries Shakir had informed him (Abdul Saleem) that he was attacked in the Bazar six months ago, by appellant Saleem, by firing pistol shots at him. This statement is obviously false and does not fit in the prosecution version and is definitely out of the context, Above all, this Abdul Saleem was not examined by the prosecution and the statement ascribed to him, has not been proved and thus is inadmissible in evidence. On the other hand, it is admitted by witnesses Shahabuddin and Anis Ahmed, both brothers of the deceased, that the deceased frequently went with the appellant and the acquitted accused, and the deceased had no enmity with them. Therefore they had no suspicion against them. So far as the threat of the father Muhammad Shafi is concerned, it is also not supported by any other brother of the deceased, which reflects on the entire statement of Abdul Tahir which appears to be an exaggeration being unsupported by the other circumstances.
21. The statement of Tahir Ali (P. W. 15) without further discussing is almost of the same pattern as that of Abdul Tahir.
22. There is in fact, no evidence of reliable nature against the appellant and it would be unsafe to base the conviction of the appellant on suc C pieces of evidence, which are insufficient and are doubtful. On almost the same evidence, the co-accused was given the benefit of doubt and was acquitted.
23. In the result, we accept the appeal and set aside the conviction and sentence. The appellant shall be set at liberty forthwith, if not required in any other case.