GHAUS ALI SHAH, J.-----This appeal under section 410, Cr. P. C. Is directed against the judgment dated 4th July, 1977, of learned Addi--tional Sessions Judge, Shikarpur, whereby he convicted the appellant under section 302, P. P. C. And sentenced him to imprisonment for life and tine of Rs.
2,000 or in default of payment to undergo one year's R. I. He preferred his appeal from jail when a suo moto notice was issued to him by this Court to show cause why the sentence awarded to him be not enhanced. Mr. Murtaza Hussain, Advocate, appeared for the appellant at the time of hearing of this appeal.
2. The facts of the case are that Rajab Ali (appellant) lodged a F. I. R. On 17May, 1975, at Police Station Gaheja of district Sukkur to the effect that he was working as a Barbar in his village where his maternal uncle Jawan (deceased) was also residing with him in the same house. It was on Wednesday when Jawan (deceased) went out after telling him that he was going to Gaheja to see Ghulam Hussain, Ghulam Nabi and others. The complainant on the next day, went out of house to ease himself when he felt a .Bad smell from 'lal-trees" near their houses. He went near and found a dead body lying there which he identified to be of his maternal uncle Jawan, with swelling and injuries on head. He thereafter went and narrated the facts to villagers namely, Haji Moula Bux Kambho, Parial Shah, Haji Sher Mohammad Kehar and others. They also came and saw the dead body of Jawan. He then went and narrated the facts to Mian Ghulam Sarwar Peerzada, a respectable person of Mohallah, who advised him to lodge report with the Police. He leaving, above persons for keeping watch over dead body, lodged such report with the Police. He disclosed in his report that his maternal uncle Jawan who was on illicit intimacy with Mst. Khurshid daughter of Ghulam Hussain for the last 5/6 years, had gone in the evening on Wednesday to Ghulam Hussainth and Ghulam Nabi Mangi at Gaheja. He suspected Ghulam Hussain and Ghulam Nabi to have murdered his maternal uncle on account of his illicit intimacy with Mst. Khurshid.
3. The F. I. R. (Exh. 21) was recorded by Anwar Beg, S. H. O. P. W. 15, who proceeded to scene of offence accompanied by the appel--lant who showed him ---vardat" which was near village "Wada Kehar" in "lal" jungle. It was near a mosque where dead body of the deceased Jawan was lying with injuries on its, forehead which appeared to be of some sharp-cutting weapon. The dead body had swollen and was absolutely decomposed one. He prepared such mashirnama of vardat in presence of mashirs Mohammad Azeem and Habibullah as Exh. 12, and inquest report as Exh. 8.
He thereafter sent for the medical officer, who performed autopsy on the deceased there. He made inquiries from witnesses Moula Bux, Parial Shah and Haji Sher Mohammad and also recorded statement of Ghulam Sarwar. He sent for the suspects and interrogated them but found then innocent as a result of investigation of the case. He on 18May, 1975 recorded the statement of Mst.
Azizan were of the deceased. The appellant did not come to the police station during course of investigation but it transpired that it was he who had committed murder of Jawan The S. H. O sent for him through a police constable but it was disclosed that he had absconded. He recorded statement of P. W. Nawab. The accused/appellant voluntarily surrendered with the help of the village people in presence of mashirs Jam and Mohammad Siddique. He recorded statements of Jam and Mohammad Siddique before whom the accused had made extra judicial confession regarding murder of Jawan, and arrested him in presence of Jam and Mohammad Siddique and prepared such mashirnama Exh 11. The accused/appellant was interrogated who offered to make judicial confession. He after his arrest and before making confession took the police to jungle near village "Wada Kehar" and pointed out the place in jungle where the deceased was murdered by him with a hatchet. The blood-stained earth was available there which was secured and sealed by S. H. O, under mashirnama Exh.
9. He also pointed out a well where be had thrown his hatchet. The divers Bakhshan and Pathan were made to go into the well who took out the hatchet from it and the S H. O. Prepared such mashirnama as Exh.
20. He recorded the statements of Pathan, Bakhshan, Mohammad Siddique, Jam and Sahibdino on 31st May, 1975--He thereafter produced the accused before Mukhtiarkar and F. C. M., Garhi Yasin, who recorded his confession.
4 The prosecution case is mainly based on judicial confession, extra judicial confession, evidence of motive, recovery of hatchet from the place pointed out by the accused/appellant, a recovery of loin cloth and shirt, medical evidence chemical examiner's report and his absconding away till 30th May, 1975.
5. The accused however denied all allegations against him and claimed that his confession was not voluntarily as it was got recorded under coercion. He further stated that he was detained by police on the next day of his lodging of the F. I. R. For the murder and the confession was extorted from him and the case against him has been set up by Police in order to save the real culprits, i.e. Mst. Khurshid, Ghulam Hussain and Ghulam Nabi
6. There is no dispute that the deceased died as a result of hatchet injuries Dr. Abdul Qadir Mangi P.
W. 12, who has performed the auto--psy on the body of the deceased has been examined and he has deposed as under:-- "On 17th May. 1975, I was Medical Officer, posted at Dakhan. On that date at 4-00 p. m , I received a letter from S. H. O. Police Station, Gaheja through P. C. Dad Mohammad for conducting post--- mortem of deceased Jawan son of Panjal by caste Mangi resident of village "Wada Kehar" at the spot I proceeded to the spot and arrived at 5.00 p. m. On the same day. At village 'Wada Kehar" I was handed over the dead body by P. C. Dad Mohammad, No. 814 of police station Gaheja. The dead body was identified by Haji Moula Bux son of Haji Khan and Parial Shah son of Ghulam Shah, nekmards of the village to be that of deceased Jawan son of Panjal Mangi son of Wada Kehar. Ith started post-mortem at 5.15 p. m., the same day and completed it at 6.00 p. m. On the same day.
The dead body was in advanced decomposition stage.
On external examination of the dead body, I found following injuries:-
(1) Incised wound 6" x --" x brain deep on the right parital region extending from right parital region to the right frontal region. Brain matter was out.
(2) Chopping of left leg above 2" Ankle joint.
(3) From the internal examination of the dead body I found follo--wing damages:-
(1) Right parital bone cut completely and brain membrane was out.
As the dead body was at the stage of advanced decomposition, the contents of stomach could not be ascertained.
The injuries were anti-mortem in nature and appeared td have been caused by some sharp cutting weapon such as hatchet. The death of the deceased after receipt of injuries could be instantaneous. The time between the death and post-mortem was about 60 hours. In my opinion, the death was due to shock and haemorrhage conse--quent upon the receipt of injuries mentioned above, injury No. 1 individually and both injuries collectively were sufficient to cause death in the ordinary course of nature. I issued such post-mortem report which I produce as Exh.
14-A. It is same, correct and bears my signature."
7. The point for determination is whether the offence was committed by the accused/appellant?
8. We'll first of all examine the extra judicial confession as well as judicial confession of the appellant. As far as judicial confession is concerned it has been recorded on 31st May, 1975, when the F. I. R. Was lodged by the appellant/complainant on 17th May, 1975. The appellant, who is complainant for the murder of Jawan (deceased) is alleged to have absconded after showing the scene of offence to the police. He voluntarily surrendered with the help of the people of the village and was arrested on 30th May, 1975, He was produced before the Mukhtiarkar and F. C. M. On 31st, May, 1975,'who recorded his confession which is as under:- "Deceased Jawan was my real maternal uncle and he had given his daughter `Bhanna' to me in marriage. She had died about 8 months back. Her father had a daughter by name Haleema, whom, he was giving in marriage to Ghulam Shabir son of "Khurshid", upon this I had raised objection. I had told him that in case, he will give her hand in marriage to him, I will kill him, because my maternal uncle was on illicit intimacy with "Khurshid" and that girl had born from her. Originally, I was residing with my maternal uncle. About two months back, he turned me out of his house, thereafter, I went to my uncle Ghulam Haider at village of "Tayyeb" acid told him that my maternal uncle Jawan bad turned me out of his house. I asked him to accompany me, so that we may quarrel with him. At that time, my uncle did not accompany me, There--after I came back and started residing with my maternal uncle. About 18-19 days back from today, Haleeman daughter of my maternal uncle became indisposed. At night, we stayed at Mirza Patore. Deceased told me to send ailing girl and other children to Fazil Shah Jeelani and bring remaining daughters namely 'Albeli' and ---Kurarhi' to the village. But Albeli went to Fazil Shah Jeelani with her mother and sister Haleeman. After leaving Kurarhi with Nawab Hajam, at Mirza Pat6re, I came to the village. Next day i.e. On Thursday, in the evening my uncle Ghulam Haider came there to the village, I and my uncle Ghulam Haider told deceased Jawan at 9.00 p. m. To accompany us, so that we may leave him at `Gaheja' as he said that he will continue matrimonial talks with the residence of Gaheja. Thereafter I and my uncle Ghulam Haider took him out of the house and killed him by giving hatchet blows behind the ditch of the Lohars, on Friday night and threw him there in the jungle. On next night i.e. On Saturday night, we took out the dead body and threw it, in small Lal trees near the mosque. I threw my hatchet in the well of Haji Moula Bux, and Ghulam Haider went away with his hatchet. In the morning, I got up and went out side. Thereafter I saw the dead body, and informed Haji Sher Mohammad and Moula Bux Kumbhar and Parial Shah Sayed and told them that some one has killed my maternal uncle. Thereafter many people of the Town collected there. I took 3/4 persons namely Ismail Mohammad Parial Shah, Bachal Umar and Wali Mohammad Kandhar to Ghulam Sarwar Peerzada and Umar was with us. Thereafter Ghulam Sarwar advised us to `lodge report with the police'. I lodged complaint against "Khurshid", her father Ghulam Hussain and Ghulam Nabi.
Police arrived there and Post Mortem examination was conducted there. Every one went away, after burrying the dead body. I told them that I have committed the murder and Ghulam Haider Hajjam was with me in the commission of the murder. We both had given hatchet blows to the deceased. I pointed out the hatchet which was taken out with the help of divers Bakhsh and Pathan Jeho. I also pointed out the place of occurrence to the `Sobedar' where I had killed my maternal uncle. Today the police has brought me before you. The murder was committed about 18 days back."
Mr. Moula Bux, Mukhtiarkar and F. C. M. Garhi Yasin, P. W. 4 has stated before the trial Court that he received the appellant at 1.00 p. m. For recording his confession. He called him to remove his handcuffs and gave him necessary cautions. Before recording his confession, he was given two hours time for reflection. He also told him that he was not bound to give confession but in case, he gave it, it be used against him. He also told him that he was Magistrate, who is recording his confession. He further gave him caution that even if he declined to give confession he would not be remanded to police custody but would be remanded to judicial custody. He also certified that there were no marks of violence on his person. He was fully satisfied that the confession made before him was voluntary. He was remanded to judicial custody after his confession was recorded.
Before arrest and recording of judicial confession of the appellant, be is alleged to have made extra judicial confession before Jam P. W. 3 and one Mohammad Siddique, who has not been examined. As far as Jam P. W. 3 is concerned, he has not said a word about the appellant having made extra judicial confession before him and the other prosecution witness on this point is Mohammad Siddique, who has not been examined.
8. The evidence of motive has come from Mst. Azizan, who is were of the deceased Jawan. She has stated that the present appellant was married to her eldest daughter Mst. Bhanna who died about 7 months before this incident and he after her death continued to live in her house and wanted to marry her another daughter, namely Mst. Haleeman. But Jawan (deceased) intended to give hand of Mst. Haleeman in marriage to the son of Mst. Khurshid. Rajib (appellant) who wanted to marry Mar Haleeman issued threats of murder in case she was married to some one else. It was on account of this that the accused /appellant was thrown out of their house by the deceased Jawan but he returned after about 5/6 days to their house. This motive finds place in the judicial confession of the accused/appellant also.
9. The next piece of evidence is recovery of hatchet from the well-- pointed out by the accused/appellant and blood-stained clothes i.e. Lion cloth and a shirt from the person of the accused. Jam P. W. 3 who is mashir of this recovery has not supported the prosecution case regarding recovery of the hatchet from the well as pointed out by the appellant. Moreover hatchet was sent to the Chemical Analyser and his report Exh. 28 shows that blood stains on it had disintegrated, and their origin cannot be determined has not been The recovery of clothes i.e. Loin- cloth and shirt from the appellant has not been supported by Jam P. W. 3, who is mashir for this, moreover it has been made after about two weeks of the incident. The Chemical Analyser however has reported vide Exh. 28, that both of these articles were stained with human blood.
10. Now we examine the medical evidence. Dr. Abdul Qadir Mangi P. W. 12, has stated as already discussed above that the injuries on the person of the deceased were ante-mortem in nature and have been caused by sharp-cutting weapon such as hatchet.
11. The last piece of evidence against the appellant is that he abscon--ded after showing the scene of offence to the police and was arrested on 30May, 1975.th
12. We have heard Mr. Murtaza Hussain, the learned counsel for the appellant who attacked the confession on the point that it has been recorded mechanically and there is no assurance if it was made voluntary. He has stressed that the appellant was with the police as he has admittedly shown the scene of offence on the day when the F. I. R. Was recorded, and it has been admitted by Jam P. W. 3 that he was detained by the police on the second day of lodging of the report, whereas the confession has been recorded on 31st May, 1975, which is admittedly after about 10/11 days of his detention and the same has been retracted by the appel--lant at his earliest opportunity when his statement was recorded before the trial Court. It being retracted confession, it requires corroboration in it's material particulars. Jam P. W. 3, who has not supported the prosecution for extra judicial confession, recovery of hatchet and blood-stained clothes has not been declared hostile. Moreover extra judicial confession is alleged to have been made by the appellant before Jam P. W. 3 and one Mohammad Siddique. Jam' P. W. 3 has not said a single word about extra judicial confession and Mohammad Siddique who was another person on this point has not examined by the prosecution. Therefore extra judicial confession fails and the learned counsel for the appellant has stressed that the judicial confession which has succeeded extra judicial confession must also fail. He has relied upon PLD 1961 (W. P.) Kar. 731. It has also been pointed out that structure of motive is being based on the evidence of Mst. Azizan were of the deceased who was examined on 17th May, 1975, by police but she did not complain against the appellant whereas her statement was recorded on the next day in which for the first time she has brought in motive against the present appellant.
13. The remaining pieces of evidence against the appellant are recoveries of hatchet from the well pointed out by him and the blood stained clothes i.e. Loin-cloth and shirt from person of the appellant on the day of his arrest.
14. The learned counsel for the State, Mr. S. H. Zubairi, has contended that the judicial confession has been retracted at the earliest opportunity and its corroboration from the recoveries is not sufficient. He does not support the conviction of the appellant.
15. We have considered the contentions of the learned counsel for the appellant and the Advocate appearing on behalf of the State. We are satisfied that the judicial confession was not a voluntary one mores because it has been recorded after 10/11 days of the recording of the F. I. R. And therefore it cannot be accepted as true and voluntary under the circumstances of the case. There is an other fact that it has been retracted and the only circumstance to corroborate it is recoveries of hatchet and blood stained clothes which are also doubtful. The whole structure of the case has been built on the confession and if it fails, there is no other substantial piece of evidence to connect the appellant with the offence. As far as recoveries are concerned, they are not free from doubt. It also does not inspire confidence that the appellant was wearing the blood-stained clothes for all these days when they were secured from his person. It actually creates further doubt in our mind as to how the accused was wearing these clothes for 10/11 days, if we believe his arrest as deposed to by the S. H. O. The recovery of hatchet is not supported by P. W. Jam. The allegation against the appellant was that the hatchet was found out from the well in which it was thrown by him after commis--sion of offence. The divers Pathan and Bakhshan, who had gone into well after it was pointed out by the appellant and bad taken out it from the well, have not been examined to support this aspect of the case. We have therefore reached the conclusion that we rule out of consideration judicial confession, extra judicial confession and the alleged recoveries. There remains no other piece of evidence against the appellant and for these reasons we feel that conviction and sentence on such evidence cannot be upheld under the circumstances of the case.
16. In the result, we vacate the notice issued sun motu for enhance--ment of sentence and also allow this appeal, set aside the conviction and sentences and direct the accused to be set at liberty if riot required in any other case.