SAMAD ALI SHAH, J.--This appeal is directed against impugned judgment dated 30th September,'
1979, whereby the appellant has been convicted on two counts i.e. Under section' 302, P. P. C. And sentenced life imprisonment and a fine of Rs. 1,000 in default further R. I. For one year and under section 13 (e) of Arms Ordinance and sentenced to R. I. For one year. Both sentences have been directed by the trial Court to run concurrently. At the time of admission of appeal, notice was issued to the appellant as to why the sentence should not be enhanced to death. We propose to dispose of both appeal and sun motu revision by this single judgment.
2. Briefly stated prosecution case is that appellant is a young Pathan and belongs to Quetta, where he was conductor of a bus. About 3 years prior to the incident, he met with an accident and became injured and consequently his right leg was, amputated. Thereafter, he moved about with the help of two crutches. On 6th March, 1977 he came to Karachi and hired a private taxi with the intention of killing the driver, and selling the same. On the day of incident, i.e. 6th March, 1977, he hired red coloured Datsun Car bearing No. K. C. C. 9749 from deceased Hasan Din at Karachi and proceeded towards Hala. The deceased Hasan Din was driving the car and appellant was sitting on the rear seat. There was nobody else with them. At about 3-15 p. m. When the car reached Link Road Khandoo Stand and road to Hala, appellant asked the driver to stop the car as he wanted to urinate. Deceased stopped the car and the engine was still on. Appellant got down from the car, took out a pistol and fired two shots at the driver, who was sitting at the wheel. The driver became injured and. His foot slipped on the accelerator with the result that the car dashed forward and then turned turtle into a deep. Driver died at the spot and the appellant tried to take the dead body out from the car, but he could not succeed. In the meantime, some witnesses in nearby village saw the car turning upside down and came to the spot. Appellant asked them to take out the dead body and enquired from them about the Police Station as he wanted to lodge the report. Appellant then slipped away and after some time a Police Party happened to pass by and saw the car upside down and dead body lying on the cot, which was brought by the witnesses from the village.
On enquiry the witnesses informed the Police Party about the accident and lame Pathan with crutches, who was not known to them and wanted to take the dead body out, but then went away to lodge the report. S. H. O. Noor Hussain. Shah, who was heading the Police Party left behind P. C.
Muhammad Ali and H. C. Muhammad Ayub at the wardat with witnesses and directed the H. C.
Muhammad Ayub to take proceedings under section 174, Cr. P. C., who recorded statements of witnesses, inspected wardat, checked inside the car and found a pair of chappal belonging to the deceased and a used shell of bullet of. 22 bore. There were four cassettes and documents relating to the car. He secured the blood and the bullet which were sealed into parcel. He found two injuries on the head of the deceased near his ear. He found driving licence on the dead body and also a driver's badge. He prepared such mashirnama and also prepared inquest report. He despatched the dead body to the Hospital for post-mortem examination. He recorded statements of eye- witnesses, namely, Manthar, Sadhoro, Sajan, Jaffar and Allah Buksh. He got the car set right and took the car to the Police Station. In the meantime, S. H. O. Noor Hussain Shah went to P. P. Khandoo, but did not find any lame Pathan there and on enquiry was informed that no such report was lodged by any person neither any lame Pathan had come to the Police Post. S. H. O. Then along with Police Staff went in the direction of Khandoo Road in search of accused and spotted a tonga in which there were passengers including a lame Pathan with crutches. On seeing the Police Party this Pathan became nervous and wanted to slip something under the seat, but was caught by Constable Gul Hasan. On search it was found that he had a pistol in his hand for which he had no licence. He produced two live bullets also from the pocket of his shirt. The bullets were of .22 bore and one of them was misfired. S. H. O. Arrested appellant and prepared such mashirnama. He took appellant to the Police Post, lodged report under section 13-D of the Arms Ordinance. He sent the copy of the report for incorporation in 154, Cr. P. C. Register at the police station.
3. In the meantime, H. C. Muhammad Ayub came to the police station and made entries in daily diary and also enquired from Medical Officer about the result of the Post-Mortem Examination, who informed that the Post-Mortem Examination could not be conducted at night H. C. Muhammad Ayub then directed writer Head Constable to make enquiry on telephone from Keamari Police Station, Karachi about the identity of the deceased driver as address of the car owner was found in the papers, which were available in the car. Following morning Roshan Din, Khan Muhammad and others came from Karachi and identified dead body to be of Hasan Din in the meantime Medical Officer informed that death of Hasan Din was due to fire-arm injuries hence further investigation was taken over by S. H. O. Noor. Hussain Shah. He called witnesses Manther, Urs Jaffar, Sadoro, Sajan and Allah Bukhsh and verified their statements, which were previously recorded by H. C.
Muhammad Ayub. S. H. O. Got an identification test of appellant made through these witnesses under the supervision of Mukhtiarkar and F. C. M., Hala. All the witnesses had correctly picked put the appellant. Such mashirnama was prepared, on 8th March, 1977 be held a demonstration of driving the car by appellant in presence of the Magistrate and mashirs. Appellant successfully drove the car for about 6 furlongs. Such mashirnama was prepared. On the same day appellant appeared before the Mukhtiarkar and F. C. M., Bala, who recorded his judicial confession. S. H. O.
Inspected wardat verified progress of the investigation made by H. C. Muhammad Ayub recorded statements of Khan Muhammad, Lal Muhammad and Roshan. He got recorded 164, Cr. P. C.
Statements of Manthar, Sajan, Urs and Allah Buksh. After completing other steps of the investigation, challan was presented in the Court. It may be pointed out here that the S. H. O. Did not send pistol and crime empties to the Ballistic Expert for examination and report and he has explained that be requested for permission, but such permission was not granted by higher authorities.
4. Prosecution has examined 11 witnesses in support of its case. P. W. 1 Dr. Lal Muhammad has deposed that on 6th March, 1977 be conducted post-mortem examination on the dead body of deceased Hasan Din and found two, fire-arm wounds, one on left temporal region and the other on the lower part of left pinna. Banking and charring were present around both wounds. The injuries were caused from a very close range. Death was due to shock and internal haemorrhage caused by three fire--arm injuries.
5. P. W. 2 Manthar, P. W. 3 Sajan and P. W. 4 Muhammad Urs have deposed before the trial Court that they saw the car falling down in the ditch and came running there and further saw a Pathan, who was lame and bad one leg cut was attempting to take out the driver and asked the witnesses to help him in taking out the driver, who was dead: The Pathan, who was walking with crutches under both arms informed them that the car had turned turtle and fell down in the ditch causing death of the driver. That man then asked them about the Police Station went away to lodge the report. Police Party came after a short while and the state--ments of these witnesses were recorded. P. W. 2 Manthar and P. W. 4 Muhammad Urs have further attested mashirnama Exh. 7 and inquest report Exh.
8. These three witnesses consequently took part in identifica--tion test and correctly picked out appellant.
6. P. W.5 Roshan Din is brother of deceased Hasan Din and identified his dead body and was informed about the incident in pursuance of telephone call made to Keamari Police Station, Karachi. P. W. 6 Dhani Baksh has attested mashirnama of identification test Exh. 15, mashirnama of arrest of appellant in the case for offence under section 302, P. .P. C., which is Exh. 16 on the record and mashirnama of demonstration of driving the car by the appellant Exh. 17, P. W. 7 Hayat Khan has deposed that deceased was driver of that car in question which belonged to his family. The car was owned by his brother, who was an engineer. On the day of incident in the morning at 10-00 a. m. Deceased took away the car in order to get it service and did not return till 5-00 p. m. A Police Constable came from Jakkson Police Station and informed that the car had met an accident at Mela in which the driver had died. He came with others from Karachi and took away the dead body and the car. P. W.
8. Abdul Rahman has attested mashirnama of recovery of pistol from the appellant Exh.
21. P. W. 9 Muhammad Ayub Head Constable made initial investigation of the case under section 174, Cr. P. C. At the spot and prepared mashirnama, inquest report and recorded statements of witnesses as stated above. On 7th March 1977 after receipt of post-mortem report this witness became complainant and lodged report on behalf of the State. P. W.-10 Noor Hussain Shah has deposed as Investigating Officer. P. W.-11 Faiz Muhammad, Mukhtiarkar and First Class Magistrate has deposed before the trial Court that he supervised identification test and signed such mashirnama Exh.
15. He also supervised the demonstration of driving of car by the appellant and signed mashirnama Exh.
17. On 8th March, 1977 he recorded judicial confession of the appellant, which he has produced as Exh.
29. Prosecution has produced report of Chemical Examiner according to which earth and clothes of deceased were found to be stained with human blood.
7. Before the trial Court appellant in his, statement under section 342, Cr. P. C. Has taken the defence of denial simpliciter of all prosecution allegations. He has retracted judicial confession on the ground that it is false and he was not produced before the Mgistrate. He has explained his arrest by saying that he was living in Mosque at Hala and was begging when a Constable came and took him to Police Station. He was kept in custody and subsequently sent to Hala Jail. He has been falsely involved in the case and he is innocent. Appellant has not examined any witness in defence.
8. The trial Court after assessing the evidence produced by the prosecution has convicted and sentenced the appellant as stated above on the basis of retracted judicial confession and other confirmatory circumstances. So far the judicial confession is concerned, record shows that incident as alleged took place on 6th March, 1977 at about 3-15 p. m. And appellant was arrested on the same day in the evening, but in the case under Arms Ordinance and subsequently when post- mortem examination of the deceased confirmed the fact that death was due to fire--arm injuries, F. I. R. In the case for offence under section 302, P. P. C. Was formally lodged by Head Constable Muhammad Ayub on behalf of State on 7th March, 1977 at 9-05 p. m. P. W. 9 Muhammad Ayub, Head Constable has deposed before the trial Court that he was in Police Party and the car was discovered on 6th March, 1977 at about 3-15 p. m. And under the orders of S. H. O. He commenced proceedings under section 174, Cr. P. C., examined witnesses, who were present near the car and prepared mashirnama of injuries of the deceased and inquest report. He also found in the car used shell of bullet, which he secured and put into a sealed parcel. The dead body had two injuries near its ear and these injuries appeared to be the result of discharge from some fire-arm. He sent the dead body to the Hospital for post-mortem examination. This witness has further deposed before the trial Court that on the following day, i.e. 7th March, 1977 at 9-OS p. m. After receipt of post- mortem report, be lodged the report of present crime. Post-mortem report Exh. 4 on the record shows that postmortem was commenced on 7th March, 1971 at 8-00 a.m. And was finished at 9-30 a.m. Post-mortern report was sent, to S. H. O., Hala Police Station by the doctor on the same day.
Both the Hospital and Police Station are situated in the town of Hala. In such circumstances it is not understandable as to why the report for the case of murder was lodged as late at 9-05 p. m. When post-mortem test was finished at 9-30 a. m. Prosecution has not furnished any explanation as to what happened to the report from 9-30 a. m. To .9-05 p. m. Strangely enough this post-mortem report does not appear to have been received by the S. H. O. Hala Police Station, but 14. C.
Muhammad Ayub claims to have received the post-mortem report at 9-05 p. m. On 7th March, 1977 hence he lodged the First Information Report for the case of murder.
9. P. W. 10 S. H. O. Noor Hussain Shah has deposed before the trial Court that he arrested the appellant on the same day, i.e. 6th March, 1977 in the evening in connection with the investigation of the case under the Arms Ordinance at P. P. Khandoo and formally F. I. R. Was. II incorporated in the register under section 154, Cr. P. C. At Police Station Hala. He has further deposed that on 7th March, 1977 H. C. Muhammad Ayub gave him papers relating to the investigation conducted by him and he started further investigation of that case on 8th March, 1977. S. H. O. Has further stated that he was given the papers on 7th March, 1977 'at Police Station by Head Constable Muhammad Ayub, but he is silent about the time when these papers were given to him. He is also silent about the receipt of post-mortem report at Police Station Hala. He is also silent about the lodging of formal F. I. R. At Police Station Hala by Head Constable Muhammad Ayub for offence under section 302, P. P. C. After receipt of post-mortem examination. S. H. O. Has not stated in his evidence before the trial Court as to on what date and what point of time he made formal arrest of the appellant in the case under section 302, P. P. C. However, P. W. 6 Dhani Buksh Mashir has testified before the trial Court that appellant, who was in custody in connection with the investigation of the case under the -Arms Ordinance was formally arrested in the case for offence under section 302, P: P. C. On 8th March, 1977 at 8-25 a. m. This is also evident from the contents of mashirnama of arrest Exh. 16 on the record. Place of arrest is shown in Exh. 16 as Court of Mukhtiarkar and First Class Magistrate, Hala. In the circumstances the prosecution has failed to explain as to why F. I. R. In murder cast was registered so late on 7th March, 1977 at 9-05 p. m. When the post--mortem examination was finished at 9-15 a. m. On the same day. There is, also no explanation as to at what time post- mortem report was received at the Police Station although both Police Station and Hospital are situated in Hala Town. If prosecution was waiting to confirm the n cause of death, then the same should have been confirmed on telephone as soon as post-mortem examination was over at 9-13 a. m., secondly prosecution has also not explained as to why the appellant was arrested in the murder case so late on the following day of lodging of report, when he was already in custody in the case under Arms Ordinance.
10. Now judicial confession appears to have been recorded on 8th March, 1977 at 9-00 a. m. As deposed by Mr. Faiz Muhammad, Mukhtiarkar and First. Class Magistrate Judicial confession Exh. 29 on the record also shows the time of recording as 8th March, 1977 at 9-00 a. m. As pointed out earlier mashirnama of arrest Exh. 16 shows that the appellant was formally arrested in the case for, offence of murder on 8th March, 1977 at 8-25 a. m. From the Court of Mukhtiarkar and First Class Magistrate, Hala. It, therefore, appears that immediately after the arrest of appellant from the Court of Mukhtiarkar and First Class Magistrate, Hala he was produced before the Magistrate for recording his judicial confession. The most important consideration for evaluating judicial confession whether retracted or not, is whether it appears to the Court to be truthful and, voluntary.
In order to do that it would be necessary to go into other pieces of evidence produced by the prosecution to see that whatever story is given by the confessing accused stands confirmed or not.
If the Court is positively satisfied that judicial confession given by the accused is voluntary in nature and is also truthful then conviction can be based upon such confession. The narrative part of judicial confession is reproduced as under :- "I was conductor of the bus at Quetta. I can drive the vehicle. About 3 years back I met with an accident as a result of which, my right leg was severed in Quetta Hospital. I am walking with the help of wooden crutches. I reached in Karachi on 6th March, 1977 in the morning. I hired taxi from there and intended to kill the driver and sell the car. With this intention I had acquired the pistol when I went from Khaddoo Road to Link Road I asked the driver to turn the vehicle towards Khaneet.
Driver was at the front seat and I was behind him. When I reached near Sanghr-wah. I asked the driver to stop the vehicle so that I may urinate. Driver stopped the vehicle, but the engine was on I opened the door of the, car and get down and took out pistol from my pocket and fire two shots at driver, which hit him on his temporal region and behind his ear. As soon as driver received injuries, his foot slipped from the brake and the vehicle rushed ahead and turned turtle into a ditch by the side of the road. I tried to take out the driver, but could not do so. In the meantime, people came there. Thereafter, I told these people that I want to lodge the report with Police and on that pretext I went from there. I went and concealed myself in wheat cultivation. At sunset time I came out from the wheat cultivation, boarded a tonga and was going towards Khandoo Road when Police Party arrived there, captured me and recovered pistol from me. They arrested me. I had to acquire the car for selling purposes. Due to this termination 1 had boarded a private car from Karachi to Sakrand for Rs. 260 and bad killed the driver with the intention to drive away the car. But as the car turned turtle, I could not drive away the car. I have actually committed murder of the driver."
11. We have to look for confirmatory circumstances in the evidence produced by the prosecution to see whether the story as narrated by the appellant .In this confession is true or not. There is no confirmatory evidence available with prosecution that the appellant came from Quetta, C was conductor of a bus, and he hired the taxi from Karachi in the morning of 6th March, 1977 for Rs. 260 to come to Sakrand. Prosecution has not produced any evidence as to what happened in Karachi, how the bargain for hire of car was struck and whether Rs. 260 was paid in advance to the driver or to any other person. Rs. 260 were not recovered from the car or from the person of the deceased driver. Only a ten-rupee note was recovered from the person of the appellant, when he as arrested as is shown in mashirnama of arrest Exh.
21. On the record, P. W. 7 Hayat Khan has deposed that deceased Hasan Din was driver of the Datsun car, which belongs to his family and he took away the car in the morning at 10-00 a. m. One day before election held in March, 1977 for the purposes of getting the car serviced. The driver did not come till 5-00 p. m. And later on he was informed about the accident. No evidence produced by the prosecuction to show what happened to Rs 260, money for hire of the car. The other aspect of this judicial confession is that appellant appears to know fully well about. Different places of Hala. Although he claims that he is a Pathan and belongs to Quetta. He stated in his judicial confession that he went from Khandoo Road to Link Road and.
Asked the driver to -turn vehicle towards Khaneet and when he reached near Fanghro-wah, he asked the driver to stop the vehicle at another place in the confession appellant has stated that he came out from wheat cultivation, boarded Tonga and was going towards Khandoo Road. The names of these places can be known only to a person, who is familiar with this area. It is also not understandable as to why the appellant had to select a place in Hala for committing murder, when according to him he drove with deceased in the car all the way from Karachi. If the appellant had intended to commit murder of the driver to take away the car he should have done that at Superhighway or any other desolate place before doing such a long distance to Hala. There is also no evidence produced by the prosecution as to from where the appellant got pistol to Karachi.
12. The only piece of evidence worth consideration available with the prosecution is that after the car fell down in the ditch and turned turtle some persons came running from nearby village and saw appellant near the car and with them appellant spoke and went away after telling them that he was going to the Police Station to lodge the report. On this point the prosecution has examined three witnesses, namely; P. W. 2 Manthar, P: W. 2 Sajjan and P. W. 4 Muhammad Urs. Appellant was not known to these witnesses from before. These witnesses have stated before the trial Court that when they arrived at the spot they saw appellant attempting to take out the driver and they helped him in doing so. P. W. Manthar and Urs have further stated that Pathan disclosed his name to be Allahdad. P. W. Sajjan does not say that appellant disclosed his name. These three witnesses have further given the descriptions of appellant as. Pathan, lame and walking on two wooden crutches.
These witnesses have not given further description of the face of the appellant and his age to pinpoint his correct identity. These witnesses participated in the identification test and they claimed to have correctly picked out the appellant. About this identification test P. W. 2 Manthar has deposed before the trial Court that 3 or 4 days after the incident Police called him to Hala Court and before the test he was made to sit in the office of Mukhtiarkar. Police Head Constable enquired from him whether present appellant was the culprit, who was seen by him upside the car and he applied in the affirmative Appellant was not made to stand with dummies at the time of the test. He has further stated that Urs and other witnesses were not sitting with him in the office of Mukhtiarcar on the day of the test. This witness was not declared hostile. P. W. 3 Sajjan has disposed that on the day of identification test he was sitting outside the office and was shown a line of five persons from whom he picked out the appellant. In cross-examination he has stated that he, Manthar and Urs reached Hala together for the purpose of test and there was no other Pathan in the test except the appellant. All P. Ws. Were made to sit in one and the same room before the test. 'On this point P: W. Urs has stated before the trial Court that on the day of test he was shown 5-6 persons present in a line and he picked out the appellant, who was the only person by caste Pathan in the line. This witness has further testified that the appellant was the only person lame among dummies. P. W. Dhani Buksh Mashir, who has attested the mashirnama of identification test has testified before the trial Court that all the witnesses were, called together for making the identification of the appellant. All the witnesses correctly picked out appellant from the line. Subsequently contents of mashirnama were read over to him by D. P. P. In the trial Court and he admitted the fact to be correct that all the witnesses, were called one after the other and that each witness has separately identified the accused. This mashir has also stated that 10 or 15 dummies were mixed up with appellant. He also admitted that no other person having crutches was among the dummies except the appellant. He also admitted that none of the dummies was Pathan except the appellant. This mashir also admitted that previously he has acted as mashir in one Police case. P. W. 10 Noor Hussain Shah, S. H. O. Has deposed before the trial Court that he prepared the mashirnama of identification test and it appears from his evidence that identification test was held first and then appellant was arrested in connection with investigation of murder case.
Mashirnama of identi--fication test is Exh. 15 and mashirnama of arrest of appellant is Exh. 16 as produced by S. H. O. In his evidence before the trial Court. It is quite obvious that evidence produced by the prosecution of identification test is extremely defective and unsatisfactory. This is not the way in which the identification test is to be conducted. If the description was that accused was lame, had crutches and was Pathan then persons of similar description should have been added as dummies in the identi--fication test. This piece of evidence even otherwise does not connect appellant with commission of crime, which in acted of shooting. No witness has claimed to have actually seen the appellant in the act of shooting the deceased.
13. Although pistol is alleged to have been recovered from the possession of the appellant and one crime empty from the car, but the same were not sent to the Ballistic Expert. In fact there is no evidence on the record that after recovery of pistol from appellant the same was put in a sealed, parcel. No doubt prosecution was waiting for confirmation of cause of death, but even after the post-mortem report was issued confirming the fact that death was due to injuries caused by firearm. There is no evidence that pistol, which was recovered from the appellant, earlier, was put into a sealed parcel.
14. Prosecution has also produced evidence on demonstration of driving ability of the appellant.
This test was held by S. H. O., who has prepared mashirnama Exh. 17 and the test ' was held under the supervision of P. W. II Mr. Faiz Mohammad Mukhtiarkar and First Class Magistrate. This witness as well as S. H. O. And mashir Dhani Bukhsh have stated that appellant was able to drive the car in spite of his defect that one of his leg was cut. This evidence has been produced to support the assertion made by appellant in his confession that he could drive the car and his intention was to kill the driver, take away the car and sell it. Mashirnama Exh.
17. On the record shows that it was prepared on 8th March, 1971, at 8-30 a. m. Judicial confession Exh. 29 on the record shows that on 8th March, 1977, at 9-00 a. m. Appellant was produced before Mukhtiarkar and 1 Class Magistrate for recording the judicial confession. It is obvious that driving test was held before the recording of confession. Demonstration of driving test, therefore, does not confirmau0n of the statement of judicial confession but it is the alter way round strangely enough demonstra--tion of driving test held earlier is not reiterated in the judicial confession.
14. Even the manner in which the judicial confession was recorded is not satisfactory and objection is raised that appellant was not Sindhi and could not communicate in Sindhi, but still confession was recorded in Sindhi language and nowhere such mention is made in the confession that appellant narrated story of incident in Urdu, which was translated in Sindhi and written down in Sindhi.
15. For the facts and reasons mentioned above, we are of the view that the prosecution has failed miserably to produce satisfactory and conclusive evidence to connect appellant with the commission of crime alleged against him. It is the duty of the prosecution to prove case against accused beyond reasonable doubt. There is plenty of room in this case for doubt as different pieces of evidence produced by the prosecution are defective and tainted. He, therefore, set aside the conviction and sentence of the appellant passed by the trial Court for offence under section 302, P. P. C. And acquit him in that case. However, we maintain his conviction and sentence for offence under section 13 (e) of Arms Ordinance. Appeal is partly allowed, as stated above.
16. Notice for enhancement of sentence to death is hereby recalled. In the result whereof revision application stands dismissed.st