Kadir Bux son of Muhammad Khan aged about 65 years has been convicted by the learned Sessions Judge, Thatta, for an offence under section 302, P. P. C. And sentenced to suffer imprisonment for life. He is alleged to have committed murder of Haji son of Soomar Pathan by firing at hire from a plan resulting in gunshot injuries on his person and conse--quently in his death, on 22-9-1978, at about 1.30 p. m. In an uncultivated land situated in Deh Kharyoon, Taluka Sujawal, District Thatta,
2. The facts of the prosecution case briefly stated are, that the appellant Kadir Bux son of Muhammad Khan on 22-9-1978, at 6.30 p. m. Voluntarily appeared at Police Station, Sujawal, carrying ,a broken gun No. B. 656 D. B. B. L. Made in France and informed the S. H. O. Sher Khan of the police station as follows: "About 7-8 years ago my brother Allah Bux had given hand of his daughter Mst. Sakina in marriage to our case-fellow Haji son of Soomar case Sindhi Pathan resident of Tarh Khawaja. Later on Haji became bad character and, therefore, community men had refused to give that hand to Haji.
Therefore, I had got that girl Mst. Sakina married to my son Muhammad Suleman. Upon this, Haji had become my deadly enemy. Due to this enmity, after 15 days from the marriage Haji Pathan had abducted my daughter Mst. Sughra, forcibly. I filed such case at Jati Police Station. My daughter was not restored when after about 10-15 days of the incident of abduction, Haji Pathan murdered my son Suleman. Such murder case was registered at Sujawal Police Station. Haji Pathan was challaned and acquitted by the Court. After his acquittal from the Court he used to threaten us to commit our murder. Today, at about 12-00 o'clock noon, I took the licensed gun of my son in his absence. 1t was lying in a box in the house. I also took three cartridges and I went for Shikar at Wangan Lake. 1 was in search of birds around the lake when at 12-30 p, m. All of a sudden, I saw that Haji son of Soomar murderer of Suleman was going towards the village of his brother Khaman.
I saw the enemy, took the opportunity and fired a gunshot, the gun was loaded with two cartridges.
The shot was missed and Haji Pathan, started running away. I fired another shot. The pellets hit him on his right filank as a result of which Haji fell down on the ground. Thereafter I loaded the gun with third cartridge, went near and fired at Haji. The pellets whereof hit him on his left wrist. I then gave blows of the butt of the gun to Haji on his head, while he was lying down. As a result of the blows, the butt .Of the gun was broken. I found that Haji was bleeding profusely from his body. He breathed his last as a result of receiving blows. Thereafter I alongwith my broken gun went towards my house, where I wore the shirt over my waistcoat, which was already on my person and voluntarily came to the police station for report that I had committed murder for taking revenge of my murdered son Muhammad Suleman. Dead body of Haji Pathan is lying at the place of occurrence."
3. S. H: O. Sher Khan recorded the above information verbatim in the daily diary of the police station.
It was thumb-marked by the appellant after it was read over to him vide Exh.
21. He. Then secured from the appellant the broken gun carrying one empty cartridge in its barrel which was smelling having been freshly fired and also secured a blood-stained Sadri (waistcoat) in presence of Mashirs A. S. I. Muhammad Rafique and Head Constable Ghulam Mustafa vide Mashirnama Exh. 6.
He prepared the gun, Sadri and empty cartridge into three separate scaled parcels. He then incorporated the contents of the entry EXh. 21 in the book maintained under section 154, Cr. P. C. At the police station vide F.
1. R. Exh.
22. The appellant then led him to him to the wardat. He inspected it in presence of Mashirs Haji Khan and Moosa. It was situated in an uncultivated land in Deh Khariyoon, taluka Sujawal. Dead body of deceased Haji was lying at the wardat which had gunshot wounds. There was blood on the ground. He secured the blood-stained cart': and prepared it into a sealed parcel. There were footprints of one person at the wardat. Wads of cartridges were lying near the dead body. The footprints were shown to Police Pagi Khamiso. Mashirnama of wardat was prepared vide Exh.
10. He also prepared inquest report on the dead body in presence of Mashirs vide Exh.
11. He sent the dead body of Haji to Medical Officer Sujawal for post-mortem examination through police constable Abdul Hakeem. He recorded the statements of witnesses Kandero, Umer Pathan, and Hashim. On the following day 23-9-1978, he held footprint test of the appellant through Khamiso Police Pagi It was supervised by P. W. Manzoor A.I, Head Munshi and Third Class Magistrate, Sujawal. On 24-9-1978, he produced the appellant before Mr. Pardan Sing Mukhtiar kar and F. C. M., Sujawal for recording his judicial confession. The appellant made his judicial confession which was recorded on that day. On the same date, the statements under section 164, Cr. P. C. Of P. Ws. Kandera and Hashim were recorded by Mr. Pardan Sing the Mukhtiar kar and F. C.
M. Sujawal. S. H. O. Sher Khan had sent the blood-stained articles to the office of the Chemical Examiner Karachi, where according to him, the same were not received. On completion of the investigation he challaned the appellant on 6-10-1978 in the Court, resulting in his ultimate conviction and sentence as stated above.
4. Dr. Qadir Bux, the Medical Officer, Sujawal, on 23-9-1978 conducted the post-mortem examination on the dead body of Baji and on external examination he found the following injuries:
(1) Diffused swelling measuring about 3' x 2' over left side of frontal head.
(2)Atriangular part of right pinna missing. The missing part measured -- X 1/8
(3) A circular wound of entrance of 5 milimeter diameter having circular and contusion margins of entrance, inverted with exit on lower and of left lower arm.
(4) A wound of exit measuring about 1 --diameter with everted margins on lower and on left and of left lower arm.
(5) Three circular wounds of. Entrance of 5 milimeter diameter having a circular and contusion margins of entrance inverted lie below tenth inter coastal space on the right side.
On internal examination of the dead body he found the following:-
(1) Peritoneum was ruptured.
(2) Right kidney had a circular wound from antero-posterior side.
(3) Fracture of left ulna.
(4) Fracture of 11th and 12th ribs.
(5) Transverse Colon had a circular wound.
The internal damage was as a result of the external injuries which appear to have been caused by shot-gun. From the external as well as internal examination of the dead body the Medical Officer is of the opinion that the death of the deceased was due to shock and haemorrhage consequent upon the external injuries mentioned above. Injuries I and 2 individually and all the injuries collectively were sufficient to cause death of the deceased in the ordinary course of nature. He recovered three pellets from Injury No. 1, one pellet from Injury No. 2 and two pellets from Injury No.
3. In the opinion of the Medical Officer the firearm must have been used from a distance of 6 feet as charring was present in the injuries and that fire-arm must have been used from the front side.
5. The defence of the appellant is of complete denial. According to him, he neither voluntarily appeared at the police station with the broken gun carrying empty cartridge in its barrel nor the blood-stained `Sadri' was recovered from his person. According to him, he gave no alleged information to the police, and that his foot-prints were not picked out footprint test. According to him, he made no judicial confession vide Exh. 11 to the Mukhtiar kar and F. C. M. Sujawal and that it is neither true nor voluntary. He has contended that he is an old man of 75 years and his eye-sight is weak. He has further contended that deceased Haji had many enemies and that he has been implicated by the police at the instance of the relatives of deceased Haji to dispose of the murder case. According to him, police humiliated their ladies and women folk and also his son. He has produced medical certificate with regard to his age and very poor eyesight vide Exh.
29. He has not examined any evidence in his defence.
6. The death of the deceased Haji, as a result of gunshot injuries is not disputed. The dispute in fact is as to whether the present appellant committed murder of deceased Haji in the manner and the circumstances alleged by the prosecution. In that respect the prosecution has relied on three pieces of evidence implicating the appellant in the offence; firstly, his judicial confession allegedly made by him before Mr. Pardan Sing, the Mukhtiar kar and F. C. M., Sujawal, secondly, the footprint test in which Police Pagi Khamiso allegedly picked out his footprints and thirdly, his alleged conduct voluntarily appearing at the Police Station, Sujawal alongwith a broken gun with an empty cartridge in the barrel smelling freshly fired, and recovery of a blood-stained Sadri from his person at the time he appeared at the police station.
7. I would in the first instance discuss the evidence in respect of the first piece of evidence with regard to the judicial confession made by the appellant before Mr. Pardan Sing, Mukhtiar kar and F.
C. M. Sujawal, on 24-9-1978. The confession in short is to the effect that as the appellant was looking for Shikar of birds at Wangan lake carrying his son Jan Muhammad's licensed gun and cartridges, deceased Haji who had committed murder of his son Suleman and had been acquitted in that case suddenly appeared and finding a chance to avenge the murder of his son, he took an opportunity and fired at the deceased Haji Pathan and killed him. The learned counsel Mr. A. Q.
Halepota: appearing on behalf of the appellant has assailed this piece of evidence on the ground that the confession recorded is neither true nor voluntary for the reasons that it was recorded beyond a period of 24 hours without offering applausible explanation for the inordinate delay and that it was not properly recorded by the learned Magistrate in the sense that he failed to put specific questions to the appellant at the time of recording of the confession to assess and determine as to its voluntariness and that he failed to administer second warning to him after he allowed him time for reflection. Of course, on the admitted facts of the prosecution case, neither the specific questions were put to the appellant, nor he was administered second warning. It is admitted further that as soon as the appellant appeared at the police station at 6.30 p. m on 22-9- 1978, he was arrested. His confession was recorded on 24-9-1978, admittedly after a period of 24 hours. The explanation offered by the investigating officer for this delay is to the effect that he could not get the judicial confession recorded on 23-9-1978 for the reason that he had to hold the footprint test of the appellant on 23-9-1978 and that the prosecution witnesses were not present on that date It has been contended firstly that the presence of prosecution witnesses was immaterial for recording of the judicial confession of the appellant and secondly that the Investigating Officer had no reason to attach more importance to the holding of the footprint test of the accused to that of recording his judicial confession. The contentions raised on behalf of the appellant has sufficient substance irk view of the evidence available on the record. Of course so far the presence of the prosecution witnesses is concerned there is no dispute that presence of the witnesses was not necessary for recording of judicial confession of the appellant. So far the contention with regard to the holding of the foot print test on 23-961978 is concerned, it has equally no force as it is admitted in the evidence on record that the footprint test was held in the office of the Mukhtiar kar under the supervision of Head Munshi and 3rd Class Magistrate and that Mukhtiar kar & F. C. M. Was also present at that time. What is further clear in the evidence on the record that the appellant was not only willing but anxious to make his judicial confession and that in the circumstances the Investigating Officer if at all the appellant's judicial confession was voluntary should have attached more importance to get his judicial confession recorded on 23-9-1978, rather than holding his footprint test at that time. 1n that respect, the circumstances that the appellant voluntarily appeared at the police station with the broken gun and made a clean breast of his guilt, his version to the effect that after commission of the offence he went directly to his house and put on a shirt over his Sadri which he was wearing and that as stated by him in his judicial Confession that he was sick of his life after the murder of his son Suleman, would clearly disclose that the appellant was anxious to make his judicial confession as soon as he had appeared at the police station. If it was really so, and the appellant's confession was voluntary, there was no justification for the Investigating Officer to delay the recording of the confession and attach more importance to the holding of footprint test. It is admitted in the evidence on record that the womenfolk of the appellant were dragged to the police station and the circumstances and the evidence on record would clearly indicate that the possibility of undue pressure having been brought on the appellant for making the judicial confession is not ruled out. It is, therefore, very clear that the prosecution has failed to offer any plausible explanation for the undue delay that vas made in getting the judicial confession recorded beyond the period of 24 hours. Reliance in that `' respect has been placed on the case Tooh v. The State (1). And Manzoor v. The State (2). The judicial confession in the instant case, therefore, does not ~ appear to have been voluntarily made.
(1) 1975 P Cr. L J 440(2) PLD 1973 Lab. 714
8. It has been emphasised that since the judicial confession has not been voluntary, it could not be said to be true. The rule of caution universally applied to the cases of retracted confession that such confession should not be acted upon unless corroborated in material particulars by reliable evidence, cannot be overlooked in the circumstances of the present case. In fact the retracted judicial confession in the instant case has not been corroborated in its material particulars. On the admitted facts of the prosecution case, there is no trace of the broken gun and the empty cartridges allegedly recovered from the appellant at the time of his voluntary appearance at the police station. There is also no trace of the blood-stained Sadri that was allegedly recovered from the appellant at the police station. It is in the evidence that the gun, empty cartridge and the blood-stained Sadri were prepared into three separate sealed parcels, but according to the Investigating Officer he sent the same to the office of the Chemical Analyser where they were never received. There is also no trace either of the chemical analyser's report or of the report of the Ballistic Expert. What happened of these incriminating articles and the reports, the prosecution has failed to explain. The recovery Mashirs are two Police Officers A. S. I. Muhammad Rafique and Head .Constable Ghulam Mustafa. No efforts were made for the attendance of the independent Mashirs of- the locality specifically when the police station where the recovery was made situated in a big of town of Suawal. The explanation offered is that there was no need of calling private Mashirs. It is not a natural conduct for a person who may have committed a murder to carry the weapon of offence to a place so distant both from the scene of occurrence and from his residence. No criminal can be expected to be indiscreet enough to carry the proof of his crime for so long and for such distances, unless he wanted to make the public demonstration of the crime committed by him. In such a situation as is in the present case, in case of failure on the part of the Investigating Officer to secure independent witnesses of the locality to witness the recovery the inference would be that the Police Officer making the search was promoted by a desire to have such witnesses as would be easily persuaded to support any story which he might put forward. Statutory requirements of section 103, Cr. P. C. That two or -more respectable inhabitants of the locality should attend the search would be attracted to the circumstances of the present case and having not been complied with,, such recoveries must be excluded from consideration as was held in case Magio v. The State (1).
9. Apart from the above circumstances, the prosecution having; failed to prove the recoveries, there is a clear indication in the evidence on record as deposed by P. Ws. Kandero and Haji Khan Mangorjo to the effect they having come to know of the incident as soon as it was committed on 22-9-78 at noon time, they along with others reported it at Sujawal Police Station and the police after visiting the wardat immediately after the incident had called the accused subsequently from his village. According to the version, of P. W. Khamiso Police Pagi the accused was brought A the police station by the Investigating Officer on the night between 22-9-1978 and 23-9-1978, whereafter they had visited the wardat and he was put to the, footprint test which was held at about 10.30 a. m. The same day. The evidence of these witnesses, very clearly belie the version that the appellant had voluntarily appeared at the police station alongwith the broken gun and the empty cartridge, apart from the fact that the prosecution has miserably failed to prove the recoveries as already discussed above. The circumstance that the F. I. R. Was lodged on the basis of the information given by the appellant himself at the police station making confessional statement, the learned State counsel Mr. Agha Ghulam A.I relying on the case, Shahdad Gul v. The State (2), has contended that only the statements I produce the gun" and "I produce the Sadri" would be admissible in the evidence and the rest of the statements being inseparable from the confessional statements made by the appellant to the Police Officer would be inadmissible in evidence under section 25 of the Evidence Act. He has further contended that the learned trial Judge has excluded the recovery of blood-stained Sadri out of consideration. So far the production of gun is concerned he is of the view that the gun is admittedly a licensed gun of Jan Muhammad the son of the appellant, and its production would hardly amount to an incriminating circumstances against the appellant, in the circumstances of the present case.
(1)1976 P Cr. L J 243(2) PLD 1973 Pesh. 8
10. Relying on the rule of caution as already stated above the confession of the appellant which is retracted requires corroboration in its material particulars which is lacking in the circumstances of the present case as discussed above. It would, therefore, be unsafe to conclude that the judicial confession made by the appellant is true. The prosecution has, therefore, failed to prove that the appellant made the judicial confession which is voluntary and true. This piece of evidence, therefore, for the reason stated above, is ruled out of consideration.
11. I would then discuss the evidence of footprints of appellant picked out in the footprint test by Khamiso Police Pagi. On the admitted facts of the prosecution case, there were solitary footprints of one person at the wardat. According to the Mashirnama of the wardat they were of one person and were naked and comparable and were shown to Khamiso Police Pagi. The version of the Police Pagi P. W. Khamiso is also to that effect. But the Mashir of the wardat, namely, Haji Khan Hangorjo has given complete go-back to the version in that respect. According to him the footprints were in shoes and were not naked. According to him the Pagi Khamiso could not identify the footprints in the footprint test. He goes to the extent to say that the contents of the Mashirnama to the effect that Kbamiso Pagi picked out the footprints in the test are not correct. There is clear indication and in fact an admission in evidence of P. W. Khamiso Police Pagi to the effect that he had seen the appellant at the police station where he was brought by the Investigating Officer on the night preceding the day footprint test was held, and that such identification of footprints in the footprint test would hardly carry any weight. P. W. Khamiso Police Pagi has admitted that he is not expert in the science of foot print test. He has further admitted that he has not received special training for the identification test of footprints. The prosecution has failed to examine the second Mashir of the test Moosa and in view of the evidence on the record hardly any value can be attached to the picking of the footprints of the appellant in such footprint test. This piece of evidence, therefore, can very safely be discarded.
12. So far as the third piece of evidence with regard to the voluntary appearance of the appellant alongwith the broken gun at the police station and the recovery of the blood-stained Sadri is concerned, in view of the discussion stated above, the prosecution has failed to prove such conduct of the appellant to the effect that be voluntarily appeared at the police station and that the recoveries of the gun, empty cartridge and the blood-stained Sadri were effected from him.
13. , It is admitted in the evidence on record that the deceased Haji was challaned and tried for the murder of one Sikiladho in which P. W. Haji Khan Hangorjo was Mashir. It is further admitted in the evidence by P. W. Haji Hangorjo, that deceased Haji Pathan was bad character and had been challaned and tried in various cases and that he had many enemies. None of the pieces of evidence, also safely connect the appellant with the crime.) It is well settled that one tainted piece of evidence cannot corroborate' the other tainted piece of evidence. It appears that the deceased Haji Patan was murdered unnoticed and that the appellant was implicated on a mere suspicion.
The learned state counsel Mr. Agha Ghulam A.I for all these reasons has also very rightly not supported the prosecution case. The prosecution therefore, very clearly has failed to prove it's cage against the appellant beyond reasonable doubt.
14. In the result, the appeal is allowed. The conviction and sentence passed against the appellant is set aside and he is acquitted. He is directed to be released forthwith if he is not. Required in any other case.