G. M. SHAH, J.--By the judgment delivered on 4th July, 1978, the learned Sessions Judge, Dadu convicted both the appellants herein, of an offence under section 302 read with 34, P. P. C. For committing the murder of Almoon and sentenced them to death and further directed that each of them to pay Rs. 2,000 as compensation under section 544-A, Cr. P. C. To the heirs of the deceased, in default thereof, each of the appellant would undergo R. I. For six months.
2. Both the appellants have appealed against the judgment of convic--tion and sentence. There is also the reference made by the learned Sessions Judge for confirmation of the sentence of death awarded to them.
3. Appellant Allahdino is uncle of appellant Karo alias Abdul Karim Babar. They are also related to the deceased and complainant Gul Mohammad and witness Bhooro. Deceased Almoon was a big Zamindar, having about 400 acres of land. One Ahamad was the brother of appellant Allahdino Ahamad and his mother Zulekhan had disputes with deceased Almoon over lands. About a year and half before this case. Kauro nephew of deceased Almoon was alleged to have murdered Ahamad. The matter was decided by their Nekmard Moulvi Azizullah, and deceased Almoon was made to pay a fine to the heirs of Ahamad. However, the case against Kauro was proceeding in the same Court of Sessions at Dadu, at the time of this incident. Admittedly, therefore though the parties were related, there was hostility and strained relationship between them. Mirzoo and Ali Ahmed nephews of deceased Almoon, had forci--bly detained the wife of appellant Allahdino alias Dinoo. He was demanding his wife back from the nephews of the deceased Almoon, but they did not allow her to go.
3. The incident of this case resulting in the death of Almoon occurred on 20th October 1976 at 9.30 a. m. On the Katcha Road, going from Wahi-Pandhi to Johi, about one furlong away from Haji Khan Mori, on Johi Barrage, towards Wahi Pandhi side. At a distance of about two (2) furlongs, there is Johi Town, where there is Johi Police Station. The prosecution case, as narrated in the F. I. R. Lodged by complainant Gulu alias Gul Muhammad, aged 25 years (P. W. 5), on 20th October, 1976 at 10 a. m., is that in the morning, he was sleeping in his house, when his maternal-grandmother Mst.
Haleema (P. W. 3) informed him that his grandfather, deceased Almoon had gone alone to Dadu to see Moulvi Azizullah Babar and he was followed by the two appellants armed with. Hatchets. She apprehended fight and asked him to go towards the deceased. On hearing of the news, Gul Muhammad contacted his relation Bhooro son of Siddik and both of them followed the deceased.
When they were at a distance of about two (2) furlongs away from Johi Canal, they saw both the appellants having hatchets in their hands, going behind the deceased. The complainant Gul Mohammad and P. W. Bhooro moved fast and tried to approach the deceased, when both the appellants had already reached him (deceased) and appellant Allahdino gave a sharp side hatchet blow, on the back side of the head of the deceased, who fell down. In presence of the complainant and witness Bhooro, both the appellants gave sharp side hatchet blows, on the neck of the deceased. They gave (hakals) challenges to the appellants not to kill the deceased. On their cries Chanesar son of Baharo Babar, who was going from Johi to Kacho, came running and saw and identified the appellants, causing injuries to the deceased. On seeing the complainant and witnesses approaching, the appellants ran away towards north, alongwith their hatchets. The witnesses saw that the deceased had hatchet injuries on his neck and head. Blood was coming out and the deceased was found lying dead.
The motive disclosed in the F. I. R. Was that "last year Kauro, nephew of the deceased Almoon had murdered Ahamad, son of Khair Mohammad Babar, brother of the Appellant Allahdino, and uncle of appellant Karo, in Dirgh Bala Town, and accused Kauro was still in Jail, and the case was still pending", The complainant asked P. Ws. Bhooro and Chanesar to sit over the dead body and he himself went to lodge the F. I. R. (Exh. 15) at 10 a. m. At Police Station Johi, which was about one mile away from the vardar. The report was recorded by S. H. O. Johi Mohammad Sadiq (P. W. 9). After about 10 minutes of the recording of the F. I. R., both the appellants were produced before the S. H. O., by Jaffar Khan Rustamani. Each of them had a hatchet, which appeared to be blood--stained. They had also blood-stained clothes on their person. They were arrested and hatchets and clothes were secured by the Police, in presence of the Mashirs Jaffar Khan and Mohammad Khan. From appellant Aliahdino, blood-stained shirt and from appellant Karo alias Abdul Karim, blood-stained loin cloth were secured. The Police, visited the wardat, prepared the Mashtrnama and examined the witnesses. The dead body was sent to the Medical Officer Johi, for post-mortem examination.
On 22nd October, 1976 both the appellants were produced in the Court of the Mukhtiarkar and F.C.M. Johi, where their judicial confessions were recorded. The blood-stained articles were sent to the Government Chemi--cal Examiner. The case was, in the meantime, challaned in the Court.
4. The post-mortem examination of the deceased Almoon was performed at 1-30 p. m. And disclosed the following external injuries on his body :
(1) Incised wound 5",c 1" brain detp extended from the middle of right ear to in front of forehead, cutting the frontal right temporal and half of right ear.
(2) Incised wound 2----- x ----- x 'skin deep on right elavical exposing the clavical.
(3) Incised wound 7--- x 2 1/6--- deep upto back skin on anterior aspect of upper part of chest and base of neck.
(4) Completely cutting the neck from in front leaving only the back skin of the neck. All the internal structures were also cut at the 6th curvical vertebrae. Scalp was cut.
On internal examination, the doctor found that the skull of the deceased was cut and VI survival vertebrae, as well as, spinal cord and pharynx were cut. Neck vessels were completely cut and there was fracture of the left clavicle. The stomach was however empty. All the injuries were anti- mortem and appeared to have been caused by a sharp cutting weapon like a hatchet. According to the doctor, the death of the deceased was instantaneous and was due to shock and haemorrhage, as a result of the above-noted injuries. Injuries Nos. 1, 3 and 4 were individually sufficient in the ordinary course of nature to cause death. The time between death and post- mortem was given within 8 hours.
5. The case of the appellants was of complete denial. They had repudiated the version of the prosecution that they were wearing blood--stained clothes or that they had gone to Jaffar Khan Rustamani and had made extra-judicial confession, before him. About the judicial confession, they stated that they were tortured; but did not make the confession. They pleaded innocence and false implication by the witnesses, who were inimical to them. Appellant Karo further added that they were falsely implicated, as they had filed a murder case of Ahamed against the party of complainant, which was pending before the same Court of Sessions, Dadu. They had examined Din Mohammad Clerk in the Court of Sessions, Dadu, in defence, who had produced Exh. 29 (Letter of Mukhtiarkar and F. C. M.) Exh. 30 (Receipt of Police papers given by the Mukhtiarkar dated 4th November, 1976) and Exh. 31 (Letter of the Mukhtiar). The case of the appellants was that the confessions were subsequently written and were not made by them, nor did they bear their signatures, as they were illiterate and could affix only their thumb-impres--sions.
6. The case against the appellants rests upon the following pieces of evidence.
(i) Motive ;
(ii) Ocular evidence ;
(iii) Judicial confessions ;
(iv) Extra-judicial confessions ;
(v) Recoveries of blood-stained hatchets and clothes ; and
(vi) Medical evidence.
On the point of motive, the main evidence is of (a) Mst. Halima, wife of the deceased, (b) first informer Gul Mohammad and (c) witness Bhoro.
6A. In her statement Mst. Halima had deposed that she knew both the appellants, whose houses were adjacent to her house. She had depos--ed that her husband, had no enmity with them. In the cross-examination she had admitted that the appellants were on visiting terms with them, before the incident. Further, she had admitted that her daughter Amna was given in marriage to Usman, brother of the appellant Allah--dino, but Amna bad died, before `Rukhsati' could take place. It is there--fore clear that the deceased was closely related to the appellants. In her statement, she had not alleged the motive to be one of revenge over the murder of Ahamed brother of appellant Allahdino.
7. In his statement P. W. 6 Bhoro also does not speak of the motive to be the murder of Ahamed. On the other hand, he has spoken of the nephews of deceased Almoon, namely Mirzoo and Ali Ahmed, who had forcibly detained the wife of appellant Allahdino alias Dinoo and did not allow her to go, in spite of the appellant demanding his wife back, suggesting thereby, to be the motive. The only witness who has spoken of the motive, being one of revenge, is the first informer Gul Mohammad. In the F. I. R. He had alleged that the deceased was murdered "because last year, Kauro nephew of, the deceased Almoon, had murdered Ahamad, brother of appellant Alahdino. Whereas, in his statement in Court, he further added that "the matter, about the murder of Ahamed was decided by their `Nekmard' Moulvi Azizullah and the deceased was made to pay a fine to the heirs of Ahamed. He could not, therefore, say, due to what reason the appellants had committed the murder of Almoon. He had only suspected that it might be due to the murder of Ahamed. The evi-- dence of motive advanced by the prosecution is conflicting and is such that explicit reliance cannot be placed upon it. However, motive is useful only in appreciating and evaluating the evidence in the case. By itself, it is no proof of the crime alleged.
8. Coming next to the evidence of the two eye-witnesses Gul Muhammad and Bhoro, their version of the occurrence does not appear to be satisfactory and convincing. Mr. Mohammad Hayat Junejo, the learned counsel appearing for the appellants, has criticized their evidence, on several grounds. He has argued that their version cannot be accepted for the simple reason that they are closely related to the deceased and had given a false and cock and bull story. The deceased was the mater--nal grandfather of Oul Mohammad. Bhooro is related to the deceased. They are not supported by any other independent witness. It is argued that P. W. Chaneser was present at the time of occurrence and was an independent witness. He was given up by the prosecution and an inference can safely be drawn that, if examined, he would not have supported the version of these two eye-witnesses. There is force in his contentions. The deceased was a big Zamindar having 400 acres of land. According to Mst. Halima the deceased had left his house, on foot at 'Fajar' prayer time. It is difficult to believe that a big Zamindar would go on foot and alone on a long journey to Dadu. It was the month of October. The early morning prayer time would be at about 5.15 to 5-30 a. m. Whereas Gul Mohammad, who was at that time sleeping in the house, was informed by Mst.
Halima at about 7 or 7.45 a. m. That the deceased had left for Dadu to meet Moulvi Azizullah. There is nothing on the record to explaln as to why Mst. Halima had informed Gul Mohammad so late, when she had apprehended danger at the hands of the appellants. From the post-mortem report, it appears that the stomach of the deceased, was empty. IVs rather strange that a big Zamindar, would foot out a long distance, without eating anything. It is possible to presume that the deceased had not left at the time, as was deposed by Mst. Halima, otherwise Mst. Halima would have persuaded Gul Mohammad to accompany the deceased or at least could have sent him soon after the departure of the deceased. May be, that the deceased did not apprehend any trouble, at the hands of the appellants, therefore, he had gone alone, on foot, otherwise, he would have taken appropriate steps for protecting himself. It is not possible to believe that the deceased could not have run or shouted. Seeing the appellants armed with hatchets could following him, during day time, on a public road, for ten (10) miles, which is obviously, a long distance. There is also another aspect of the case. It is stated that the deceased had left his house for Dadu at 'Fajar' time, immediately followed by the appellants. If that was so, it was easy and more convenient for the appellants to have attacked and killed him, unwitnessed, at dawn, when there would have been no traffic on the road, and less visibility, why would the appellants wait and continue following the deceased for 10 miles and kill him, when he was only one mile away from the police station. It is just contrary to human behaviour of a vindictive and revengeful person. It is rather intriguing that Gul Mohammad and Bhoro, who were close relatives of the deceased, had followed him and bad gone to protect him from any possible assault by the appellants, were unarmed and empty- handed. It is difficult to accept the version of the two eye-witnesses that they had gone after the deceased and bad actually witnessed the murder being committed by the appel--lants.
9. The next piece of evidence against the appellants is the judicial confessions. It is argued by Mr. Junejo that the confessions are so brief and appear to be the carbon copy of the list of the evidence of P. Ws. Gul Mohammad and Bhoro. 1t is further contended that no names of the eye witnesses were mentioned. Thoueh they had continuously followed the appellants and had also challenged them. It is submitted by Mr. Junejo that the confessions of both the accused were recorded in one and the same room, where they were sitting together and the confessions were, therefore, bad in law. Finally it was argued that the confessions were shown to have been signed by the appellants, who were illiterate and could only affx thumb impressions. The confessions were also mis--placed and after an inquiry conducted by the Commissioner, they were traced out. 1t is difficult to agree with Mr. Junejo as regards his last argument, as there is no evidence on the record, of the confessions, having been lost or misplaced. It has been satisfactorily explained by P.
W. 8 Mohammad Usman that in August, 1977 he was transferred from Johi and the confessions were left in the Office, incharge of the Reader and could not be given to the Mukhtiarkar, who had succeeded him. There is also no force in the argument that the confessions bore the signatures of the appellants, whereas the receipt Exh. 30 relating to the delivery of the copies of the statements to the appellants bore their thumb-impressions. At the time of receiving the copies, it is often observed that it is the choice of the accused persons, to either sign or put their thumb-impressions, as advised by their counsel; on the receipt at the time, of receiving the copies, before the trial starts. Nevertheless, there is great force in the arguments of Mr. Junejo that due to the background and the connected circumstances of the case, the confessions themselves do not inspire confidence. In his confessional statement appellant Allahdino had stated as under : "About 11 months back, deceased Almoon bad instigated Kauro and others and got my brother Ahamed murdered. To take revenge of that murder, I and Kauro alias Abdul Karim have jointly murdered Almoon with hatchet blows in a jungle about one furlong away from Haji Khan Bridge of Johi Canal. Then we washed our hatchets in Johi Canal and went to Jaffar Khan, who brought us at Johi Thana."
The confession of appellant Kauro alias Abdul Karim reads as under :- "About 11 months back, deceased Almoon Babar had instigated Kauro and others and had my uncle Ahamed murdered. To take revenge, I and my uncle Allahdino jointly have murdered Almoon with hatchet blows in a jungle about one furlong away from Haji Khan Bridge of Johi Canal and washed our hatchets and went to Jaffar Khan, who brought us to the Johi Thana and produced us before Police."
Each confession is almost a carbon copy of the other. Since they were recorded one after the other in presence of and within the hearing of both of them, when both the appellants were sitting inside the same Court room, each appellant is therefore likely to have been influenced by the confession made by the other accused. In support of his argument Mr. Junejo has referred us to the case of Dhani Bakhsh (PLD 1975 SC 271), where in it was observed at page 191 by their Lordships as under :- "In the instant case, however, we find that the mode and method of recording the confession of one accused in the presence of the other casts serious doubt on its voluntariness which is the basic requirement of law as also for its appeal to the judicial conscience. The whole object of legal and judicial insistence on the meticulous observance of all the necessary formalities and precautions laid down with minute particularity is to ensure that the confessional statement should be absolutely free from the slightest tinge or taint of extraneous influence such as threat, promise or inducement and the Courts are placed under an obligation to affirmatively satisfy themselves that it is free and voluntary. It was observed by Deman, J. In Reg. v. Rosa Rue (1876) 13 Cox. C C 209, 'It is not merely a question as to whom the confession is made or when it is made ; but it is a matter in which you have to get at the mind of the prisoner, and see whether or not it is probable that the confes--sion was made voluntarily, in the proper sense of the word. I am afraid, the way the confessional statement of Dhani Bakhsh appel--lant was recorded right in view of his co-accused at a distance of about 30 feet from him possibly within his ear-shot which possibility was of course denied by the Magistrate and at a time when the confessional statement of the acquitted accused had already been recorded in the admitted presence of Dhani Bakhsh who was made to stand in a corner of the Court room, it is difficult to infer that the appellant remained altogether uninfluenced by the conduct of his co-accused in the matter of his own confessional statement. It is not difficult to appreciate the psychological influence on the mind of the appellant or may be even his guilty conscience of what had already transpired in Court in his view and within his ear-shot. The preceding confession of his co-accused must necessarily had exercised some persuasive if not compelling force on his mind to follow suit. In that view of the matter, the confessional statement of the appellant cannot be characterised as free and voluntary having been made in an absolutely free and uninhibited manner."
9-A. There are several other important considerations which point out that even the veracity of the confession is not free from doubt. The version given in the confession is that the deceased was murdered by both the appellants in a jungle. If that version is believed, it would be obvious that the dead body of the-deceased was removed from the jungle and was placed at the wardat on the public road. That is perhaps the reason, why the Mashirnama of the wardat did not incorporate the mention of blood at the wardat. In such circumstances, the two eye-witnesses Gul Mohammad and Bhoro could not have witnessed the crime being committed as is deposed by them at the trial.
This brings out a glaring and irreconcilable conflict between the confessional statement and rest of the, prosecu--tion case.
10. There are other doubtful pieces of circumstances, which positively affect the reliability of the confessions. The motive shown in the confessions is the murder of Ahamed, which fact is not supported by Mst. Halima and Bhoro. Whereas in his statement Gul Mohammad had deposed that "that matter was decided by our 'Nekmard' Moulvi Aziz--ullah and deceased Almoon was made to pay a fine to the heirs of Ahamed." He further stated that he could not say, due to what reasons the appellants had committed the murder of Almoon." He expressed a doubt stating that it might have been due to the murder of Ahamed. In such circumstances, it does not stand to reason, why the appellants would murder their own relative against whom, they no longer had any grudge. The confessions also speak of the hatchets having been washed in the canal. No such opinion is mentioned in the report of the Government Chemical Examiner. While analysing the contents of the confessions, it is observed, that on one hand the appellants are very careful and calculative that they took the deceased to the jungle and murdered him there; whereafter they took steps to destroy the incriminating circumstances and washed their hatchets in the canal. At the same time, it is alleged by the prosecution that after committing the murder, the appellants had gone straight to Jaffar Khan, carrying their blood-stained hatchets and wearing blood-stained clothes. This theory is rather strange and cannot be accept--ed. Therefore the confessional statement cannot be relied upon.
11. The next piece of evidence against the appellants is the extra judicial confessions made by them to P. W. 2 Jaflar Khan. This witness is not the Nekmard of the appellants but is of the locality. He is resident of Wali Pandhi village, as is shown in tile Mashirnama (Exh. 7) which is 18 miles away from Johi Town. The appellants are alleged to have met him on the way, when he was going to his `Otaq'.
It appears to be a chance meeting. It is also not clear whether which side of Johi Town was the `Otaq' of Jaffar Khan and in which direction was his village from where he was coming. This witness Jaffar Khan had gone out of his way to state and had insisted that there was blood at the wardat.
When the mashirnama did not mention it. The judicial confessions have already been discussed and not relied upon. The evidence of extra judicial confessions is also not trustworthy and cannot be accepted against the appellants.
12. Another piece of evidence is the recovery of the blood-stained hatchets, one from each of the appellant and the blood-stained shirt froth appellant Allahdino and blood-stained loin cloth from appellant Abdul Karim alias Karo. There is the settled law that the recoveries by them--selves, without any reliable evidence, as to how the occurrence took place; cannot be regarded as evidence, establishing the case against the appellants, beyond all reasonable doubt. The case of Kirir v. Crown (1969 SCMR 647) is one of the many cases on this point. The motive, ocular evidence of interested eye-witnesses and confessions made by the appellants have been excluded from consideration for the reasons discussed above. The evidence of recoveries likewise, is suspicious and does not inspire confidence. It would be unsafe to base conviction on such a piece of evidence.
13. Finally is the medical evidence, which does not corroborate the eye-witnesess. The deceased had four (4) incised injuries which must have bled profusely. In spite of it, no blood was shown in the Mashirnama Exh. 8, to have been found at the wardat. It suggests that the deceased was killed at some other place, may be in a jungle, as is stated in the judicial confessions. The medical evidence further shows that the stomach of the deceased was empty. 1t may be that the deceased had been murdered after mid-night. The approximate time of death and post--mortem given by the doctor is within 8 hours. It is, after all, an opinion of the expert, based on the presence of rigor mortis and change of colour of skin, which could take place even upto 12 hours after death, in summer as is stated by the doctor.
14. On a careful perusal of the entire evidence in the case, which is of such an interested and tainted nature that the guilt of the appellants is not established beyond reasonable doubt. The appeal is accordingly accepted and the judgment of conviction and sentence is set aside. The reference for the confirmation of the death sentence awarded to the appel--lants stands rejected.
The appellants, shall be, forthwith, set at liberty; if not required in any other case.