The appellant-accused Miral son of A.I Bux Bharchund was convicted by the Sessions Judge, Shikarpur, under section 304(1), P. P. C. He sentenced him to R. I. For 10 years and directed that since he had already remained in custody for three years as an under-trial prisoner he will undergo R. I.
For 7 years and to pay a fine of Rs. 1,000 or in default of payment of fine to suffer R.
1. For one year.
2. Briefly the facts of the prosecution case are, that on the night in between 11th and 12th August, 1976 as usual the appellant-accused Miral, his wife Mst. Shahzadi, his partner in cultivation Qaiser and his brother Imam Bux were sleeping in the house situated in village Abdall, Taluka Shikarpur. At about mid-night time the appellant-accused Miral got up from sleep and found his wife Mst.
Shahzadi and Qaiser missing from their cots. He took up his unlicensed pistol and - searched for them. When he went inside the shed of the house he found them naked sitting in compromising position. He fired at them from his pistol two shots at each one of them and killed them. On hearing gun reports his brother Imam Bux, his cousin Muhammad Hassan and other people from the village were attracted. They reached the scene of offence. Gada Hussain the nekmard of the village also reached there. They found dead bodies of Qaiser and Mst. Shahzadi lying there. They also saw appellant-accused Miral armed with a pistol present there. He informed them that he had killed the two deceased on .Provocation as he had found them in compromis--ing position. He then accompanied Gada Hussain the nekmard- of the village and reached the Police Station Sultankot.
He took the unlicensed pistol with himself. The appellant-accused Miral had also blood-stained clothes in his hand.
3. The S. H. O. Anwar Baig recorded the statement of the appellant --accused Miral to the above effect in presence of Gada Hussain. And on that basis registered the offence on behalf of the State on 1,2+076 at 5 a.m. vide Exh.
32. He then arrested the appellant-accused Mifal and secured the unlicensed country-made pistol and the blood-stained clothes produced by him and prepared the mashirnamas. He visited the scene of offence on the pointation of P. W. Muhammad Hassan and prepared its mashirnama. He prepared inquest reports on the two dead bodies lying on the wardat and also mashirnamas of injuries and sent the same for post-mortem examination to the Medical Officer RBUT Hospital, Shikarpur. He recorded the statements of P. Ws. Imam Bux, Gada Hussain and Muhammad Hassan and others. On 13-8-1976 he produced the appellant-accused Miral before Civil Judge and F. C. M., Shikarpar who recorded the judicial confession of the appellant-accused. He prepared the country-made pistol and the four empty cartridges secured from the wardat into seated parcels and sent the same to the Ballistic Expert for the examination and report. He then challaned the appellant-accused with the result that ultimately he was convicted and sentenced as stated above.
4. Doctor Mahboob A.I conducted the post-mortem examination on the dead body of deceased Qaiser son of Umar on 12-8-1976 and on external examination found the following injuries :-
(1) A lacerated circular wound about -- ' in diameter x chest cavity deep and the back of the left side chest in 8th inter-costal space. There was no charring.
(2) A lacerated wound about -- ' in diameter x chest deep on the front of right chest near the sternum Charring was present.
(3) Six lacerated wounds about -- " x -- ' x -- ' x abdomen deep in the epigastrium.
(4) A lacerated wound about -- ' in diameter in right chest. There was no charring.
On internal examination he found the following:-- Under the chest there was subcutaneous haematoma in the area of 8--- x 4--- on the back of right chest. 5th and 6th ribs were fractured on right side and 7, 8 and 9th ribs were fractured on right side, in its back. One pellet was recovered. It was packed, labelled, sealed and was sent to the concerned police. Right pleaural cavity was containing blood. Multiple lacerations were present in the pleaural on both sides. In the right lung there was laceration in the area of 3 x 1' in its middle lobe. One laceration was in the area 2' x 1--- on its inferior, 3 wads were recovered from right lungs which were packed, sealed and labelled and sent to the concerned police.
There was one laceration in the size of J' in diameter in the lower lobe of left lung. Brochial vessels were injured. Under the walls of abomen there was subcutaneous bleeding in the area of 3' diameter in the epigastrium. The peritoneum was lacerated at six places. The diaphragm was injured at liver area. The stomach was healthy and empty. The whole of the right lobe of liver was injured badly."
From external as well as internal examination the Medical Officer was of the opinion that the death was due to shock and haemorrhage on account of the injuries of vital organ of chest and abdomen as a result of discharge of fire-arm such as a gun. All the injuries were antemortem and were sufficient to cause death in the ordinary course of nature. The fire-arm appears to have been discharged from within a distance of four feet.
Doctor Mahboob A.I also conducted the post-mortem examination on the dead body of Mst.
Shahzadi on the same day and on external examination found the following injuries :- "(1) A lacerated wound about 1' in diameter x chest deep on left side chest in its back in 9th intercostal space. Charring was present.
(2) Lacerated wound about -- ' in diameter x chest deep anteriorly below nipple. There was no charring.
On internal examination he found the following :--- Under the chest wall there was subcutaneous haematoma in the area of 4' x 2' on right chest anteriorly below nipple. 9th ribs was fractured on left side chest in the back. One pellet was recovered from right chest anteriorly, right and left pleural cavities were containing blood. Left pleaural was injured at one place under Injury No. 1 and two places on right side of chest below Injury No. 2. The middle lobe of right lung was lacerated in its whole extent. One lacerated wound -- ' in diameter in its upper lobe of right lung and its lower part. Three wads were recovered, which were sealed, packed, labelled and were sent to the concerned Police. In the left lung there was laceration in diameter -- ' at lower part of the lower lobe. Lower -- ' of the lung was echhymosed.
Branchial vessels were injured."
From the external as well as internal examination the dead body of Mst. Shahzadi, the Medical Officer is of the opinion that the death was due to shock and haemorrhage resulting from the injuries of the lungs as a result of discharge from a fire-arm like gun. All the injuries were ante-- mortem and were individually and collectively sufficient to cause death in the ordinary course of nature. The distance from where a fire-arm was discharged was within four feet.
5. The appellant-accused Miral has denied all the allegations against him and has claimed to have been falsely implicated on suspicion. He denied to have committed the offence and further denied to have appeared at the police station alongwith an unlicensed country-made pistol, and the blood- stained clothes. He further denied to have reported the incident himself as alleged by the prosecution. He also denied to. Have given his confession before the Civil Judge & F. C. M., Shikarpur. According to him he was a Chowkidar on tube-well of Haji Sultan Ghumro. On the morning of the night of incident, the police went to him at the tube-well and took him to the police station and also dragged his women-folk and his brother-in-laws to the police station. According to him he was maltreated to the extent that he went unconscious and he was forced to make the judicial confession by police before the Civil Judge & F. C. M.
6. The incident resulting in death of deceased Qaiser and Mst. Shabzadi as a result of pitsol shot injuries is not disputed. The only dispute is as to whether the present appellant-accused caused their death by firing at them from a pistol under sudden and grave provocation finding them naked in compromising position. The prosecution case in that respect hinges on the ocular testimony of P. Ws. Imam Bux, and Muhammad Hassan and Gada Hussain the nekmard of the village Abdal where the incident has taken place, the appearance of the applicant-accused at, the Police Station, Sultankot accompanied by P. W. Gada Hussain with the country-made pistol the weapon of 'offence, the recovery of the unlicensed pistol from him and his judicial confession recorded by the Civil Judge & F. C. M., Shikarpur.
7. As regards the ocular testimony of P. Ws. Imam Bux, Muhammad Hassan brother and cousin of the appellant-accused respectively and P. W. Gada Hussain who had reached the scene of offence on hearing gun reports, they have given a complete go-back to the prosecution version to the effect that they saw the appellant-accused Miral on the wardat with a country --made pistol.
According to them they did not find the appellant-accused at the wardat but they found the two dead bodies lying there. According to P. W. Imam Bux who was sleeping in the same house when he got up oh bearing the gun reports he saw four thieves firing at Qaiser. According to him when Mst. Shahzadi got up they also fired at her. He has further stated that the appellant-accused Miral was Chowkidar on the tube-well of Haji Sultan where he was sleeping on that night. According to P.
W. Muhammad Hassan on hearing gun reports he came out from his house and found Imam Bux crying. He went to the wardat and found the two dead bodies of Qaiser and Mst. Shahzadi lying there. He did not see appellant-accused Miral on the wardat. He was present on that night at the tube-well of Haji Sultan where he was employed as Chokidar. P. W. Gada Hussain the nekmard of the village who came to the wardat after the incident on hear-rig the gunshots has deposed to the effect that when he went to the vordat 'found the two dead bodies of Qaiser and Mst. Shahzadi lying in the house of the appellant-accused and many people from the village present there. There he came to know that they were killed by thieves by firing from outside the house. According to him, the appellant-accused Miral was employed as Chowkidar on the tube-well of Haji Sultan which is about three miles away from the village Abdal in which the incident took place. According to him, when he went to the wardat he did not see Miral there as he was on the tube-well on that night. The above-mentioned ocular version of P. W. Imam Bux who was present on the wardat and Muhammad Hassan who has reached the wardat immediately after the incident and that of the nekmard of the village Gada Hussain who has subsequently arrived at the wardat, make it clear that the appellant-accused Miral was not present at the wardat and on the contrary they were informed by the people of the village who had assembled there that the deceased were -killed by the thieves. It would, therefore, be very clear that they do not support the prosecution version and the ocular testimony of these witnesses does not connect the present appellant-accused with the offence. On the contrary they have admitted in very clear terms that Amir Bux and Muhammad Nawaz brothers of Mst. Shahzadi reside in the same village Abdal and that they used to suspect deceased Qaiser to be on illicit intimacy with Mst. Shahzadi and they used to ask the appellant- accused Miral not to allow Qaiser to stay in the house, but Miral refused to listen to them as he had no suspicion, with the result that Amir Bux and Muhammad Nawaz had stopped talking to Miral. It is also admitted by him very clearly that police had detained Muhammad Nawaz and Amir Bux brothers of deceased Mst. Shahzadi after this incident. It is further admitted that Qaiser was declared as Kora with Kauro's brother's wife. It is also admitted that he had also enmity with Retis.
These admissions, clearly support the defence version to the effect that the deceased may have possibly been killed by some unknown persons. In any case, the ocular testimony does not connect the present appellant --accused with the commission of the offence.
8. I would then discuss the conduct of the appellant-accused having appeared at the police station in company of P. W. Gada Hussain carrying a country-made pistol and the blood-stained clothes which are alleged to have been produced by him and were secured by the S. H. O. Anwar Baig. According to the S. H. O. Anwar Baig he recorded the statement of the appellant-accused Miral in presence of P. W. Gada Hussain but there is no trace of such statement on the record. The S. H. O. Anwar Baig has further deposed that the appellant-accused appeared at the police station with blood-stained clothes in his hand but the blood-stained clothes were not available throughout the trial of the case. So far the recovery of an unlicensed pistol from the appellant- accused is concerned, it is very much doubtful as the two mashirs of recovery Gul Bahar and Koro, have not supported the prosecution case in respect of this recovery and that the S. H. O. Anwar Baig, the Investigating Officer himself has deposed that he is doubtful about his own signature on the mashirnama of recovery Exh.
19. One of the mashirs Koro has admitted that he is driver of the S. H. O. Anwar Baig who simply obtained his signature on the mashirnama and that he has acted as mashir in about 100 cases, obviously at the instance of police. What is further significant is that though the appellant-accused was available, he did not point out the wardat but the S. H. O.
Prepared mashirnama of wardat on the pointation of P. W. Muhammad Hassan. What I further find, that though it is alleged that the appellant-accused was available at the police station on the morning of 12-8-1976, but he was produced in the Court of Civil Judge and F. M. C., Shikarpur, on 13- 8-1976 after 24 hours, for the purpose of recording his judicial confession. It is possible that he might have been apprehended later on, his women-folk admittedly having been dragged to the police station. The version of the appellant-- accused is very clear which has been supported by the ocular version of the witnesses who immediately reached the scene of offence that on the night of the incident he was on the tube-well of Haji Sultan, where he was employed as Chowkidar and that he was not at the wardat. All this evidence and the circumstances on the record very clearly belie the prosecution version to the effect that the appellant-accused himself appeared at the police station in company of P. W. Gada Hussain armed with unlicensed pistol and surrendred himself. I would, therefore, find that the prosecution case to the effect is also not proved beyond reasonable doubt.
9. As regards the recovery of the pistol allegedly produced by the appel--lant-accused Miral as already discussed by me above, it is not proved for the simple reason that the two mashirs Gul Bahar and Koro have given complete go back to the prosecution version in that respect. Four empties were recovered from the scene of offence and they were sent to the Ballistic Expert for examination and report but there is nothing on the record available to the effect that they were received back or that the Ballistic Expert has sent his report. I would, therefore, find that neither the pistol was recovered from the possession of the appellant-accused, nor the empties found from wardat are proved to have been fired from the pistol. Accordingly this piece of evidence can also very safely be discarded.
10. In view of this evidence and the circumstances on the record the learned State counsel, Mr. Agha Saifuddin has very fairly conceded that the prosecution is left with only the evidence of the judicial confession of the appellant-accused recorded by the Civil Judge & F. M. C., Shikarpur, which alone needs consideration. The judicial confession has been retracted by the appellant-accused.
The case against the appellant-accused is thus based exclusively on this retracted confession. The learned Additional Sessions Judge has relied on this evidence, but I am unable to agree with him.
The position relating to the retracted confession has been laid down in Minor's Law of Evidence, 4th Edn., at p. 212 of Vol. 1. After discussing the value of retracted confession against the co- accused the learned author remarks :- "As against its maker, however, a retracted confession may constitute a sufficient basis for conviction, provided it is true and voluntary, though even in such a case it is safer and usual to require corrobo--ration."
Adopting the rule of caution referred to above, I am of the view that it would be entirely unsafe to convict the appellant-accused Miral on this evidence alone. Not only is corroboration lacking, but the evidence and circumstances on the record throw some doubt on the truth of the contention.
The contention of the learned counsel for the defence that the confession only set out what was already known to the police is by no means without substance, as would be clear from the contents of the F. I. R. And those in the confessional statement. What is further clear as stated by the appellant-accused in his judicial confession that the appellant fired two shots at each one of the deceased Qaiser and Mst. Shahzadi. It is also the case of the prosecution that four empties were secured from the wardat but the medical evidence discloses that the appellant appeared to have fired only two shots as the . Injuries on the dead body of deceased Qaiser and Mst. Shahzadi were the result of one shot fired at each one of them. The judicial confession therefore, is. Not corroborated by the medical evidence in that respect. It lacks corroboration in other material particulars as well as it is not proved that the crime weapon was produced by the appellant- accused, his conduct of going to the police station is doubtful, the clothes that he was carrying, with him are not available and none of the eye-witnesses to the incident who are mentioned in the confessional statement have supported the version set out in the confessional statement recorded by the Civil Judge & F. C. M., Shikarpur. It would, therefore, appear very clear that the judicial confession to the effect that the appellant-- accused allegedly killed the two deceased on a grave and sudden provocation, seeing them in compromising position and then accompanied by Gada Hussain appeared at the police station with the pistol, the weapon of crime and blood-stained clothes, is not corroborated in its material particulars. I would therefore, find sufficient force in the contention raised on behalf of the appellant-accused that it may not be true.
11. It has also been contended that the judicial confession in the manner and the circumstances it was recorded is not voluntary. It is admitted that the women folk of the accused-appellant were dragged at the police station and so the prosecution witnesses and that they were not freed to go till the judicial confession of the appellant-accused was recorded. It is further admitted that the appellant-accused appeared at the Police Station on the morning of 12-8-1977 but he was produced for recording his judicial confession before the Magistrate on the following day after 24 hours after his appearance at the police station. It has been contended that either the appellant- accused had not appeared at the police station as alleged by the prosecution or he was not prepared to make his judicial confession till he was coerced as it is admitted that his women folk were dragged to the police station and detained. What is further admitted by the S. H. O. Anwar Baig that while his judical confession was being recorded be was sitting out side in the veranda. It is also admitted that no second warning after the time of reflection was given to the appellant- accused was administered by the Magistrate when the confession of the appellant was recorded.
The learned 1st Class Magistrate further admits that he did not specifically mention to the appellant-accused that he was a Magistrate as the appellant knew that he was a Magistrate. He has further admitted that he did not record in the judical confession that his handcuffs were removed and that he also did not record that second warning was given to him. He has further deposed that he bad given the warnings to him according to the printed form of the judicial confession. It appears that the learned Magistrate appears to have been satisfied, since the warnings were printed in the form of the judicial confession as is clear from his evidence and seems not to have specifically administered material warnings to the appellant-accused. The body of the judicial confession does not disclose as to where the time for reflection' was allowed to the appellant as to in the chamber or the Court ,t room of the learned Magistrate. There is also nothing on the record that the judicial confession was put to the appellant-accused and its contents were explained to him at the trial. It has, therefore, been contended that it operated to the direct prejudice of the appellant-accused as he was never afforded an opportunity of explaining the circumstances appearing against him. Reliance in that respect has been placed on the case of Munawar Ahmed v. The State PLD 1956 SC (Pak.) 303On the basis of all these circumstances, it has been contended that the judicial confession of the appellant-accused recorded by the learned Magistrate does not appear to be voluntary, and I find sufficient substance in the contention in that respect.
12. It would, therefore, come to the conclusion that the judicial confession which is neither true nor voluntary as discussed by me above, cannot form the sole basis of conviction of the appellant- accused. As already stated above, it is admitted that the brothers of Mst. Shahzadi had also a grouse against the deceased Qaiser as they were suspecting him to be on illicit intimacy with Mst.
Shahzadi and that they had already protested to the appellant-accused who had declined to listen to them. It is also admitted that deceased Qaiser was also declared Karo with Karo's brother's wife and that he had also enmity with Retis. It is also admitted that on the night of the incident the appellant-accused was not present, in the nouse and that his appearance and surrendering at the police station is also belied by the circumstances on the record.' I would, therefore, find sufficient force in the contention raised on behalf of the appellant-accused that he seems to have been implicated on suspicion. The prosecution case against him very clearly is not free from reasonable doubt. I would, therefore, - hold that he is entitled to the benefit of doubt.
13. ,The result is that I accept his appeal and set aside his conviction and sentence and acquit him. .He is directed to be set at liberty if he is not required in any other case.