MUHAMMAD HALEEM, J.--Appellants Ali Akber and Gulab Khan were tried along with the acquitted accused, named Mevo and Bido alias Abdullah for causing the murder of Muhammad Hasan by the learned Sessions Judge, Larkana and while Gulab Khan was convicted under section 302, P. P.
C. the other appellant Ali Akber was convicted under section 302/34, P. P. C. Appellant Gulab Khan was sentenced to death and appellant Ali Akber to transportation for life. Each of these two appellants were further convicted under section 201 and sentenced to 7 years' rigorous imprisonment. The substantive sentences were ordered to run concurrently in the case of Ali Akbar, while in the case of Gulab the sentence of imprisonment was to take effect if the sentence of death was not confirmed vide judgment dated 24th April 1970. The appellants have appealed to this Court to challenge their conviction while the learned Sessions Judge has referred the case of Gulab for the confirmation of his death sentence. This judgment will dispose of both the appeal and the reference.
2. Mst. Namoi (P. W. 4), the mother of deceased Muhammad Hasan, lodged the first information report (Exh. 12} at Police Station, Ratodero on 16th November 1969 at 19-00 hours. The time and date of the occurrence were not indicated. It was alleged in it that on last Friday her son, Muhammad Hasan, had come to meet her in Ratodero town and had informed her that he had married his daughter, Mst. Razia Khushi Muhammad, nephew of Ali Akber, about 10 or 12 days before and that he had come along with them from Larkana, where he resided, for going to their village Kohri. His daughter and Khushi Muhammad had gone to the village while Ali Akber had left to meet his brother Gulab Khan who resided in the same town. At `tipahri' time Ali Akbar came and while leaving with him for village Kohri he told Mst. Namoi that he would return the following day and before going to Larkana he would come and see her. However on the next day, the deceased did not return, upon which ,Mst. Namoi sent her husband, Gulab alias Motan, to see if he had returned to Larkana. Manzoor Ali, son of the deceased, informed him that his father, Muhammad Hasan, had not returned. Mst. Namoi then became suspicious and apprehended that he might have been killed by appellants Gulab and All Akber, because Gulab was on terms of illicit intimacy with Mst.
Sbahzadi, wife of the deceased.
3. Mahboob Elahi, S. H. 0. (P. W. 8) after recording the report sent for the two appellants at about 11 a.m. on 17th November 1969. He interrogated them and both of them volunteered to produce the dead body of Muhammad Hasan. He then along with Mashir, Muhammad Ibrahim, went to the place where it was alleged that the dead body lay buried. Ali Akber first pointed out the place where it was buried. He was then taken away and the appellant Gulab thereafter pointed out the same place. It was dug out and the dead body was found there, which was i entified to be that of deceased Muhammad Hasan. The licensed gun of appellant Gulab was secured. Appellant Ali Akber volunteered to confess and was produced the same day at 2 p.m. before Mr. Faizul Hasan, First Class Magistrate. His confession was recorded at 4 p.m. after compliance with all the necessary formalities.
4. The autopsy on the dead body of the deceased disclosed three gunshot injuries. Two of them were wounds of exit and the third, a wound of entrance. In the opinion of Dr. Nooruddin, the probable time between death and the post-mortem was within 5 days and the wound of entrance individually and all the wounds collectively were sufficient to cause death in the ordinary course of nature. The shot, according to him, had been fired from a distance of about one foot.
5. The appellants in defence denied the prosecution case and proclaimed their innocence.
Appellant Ali Akber resiled from his confession and alleged that he had given it because his wife and mother were called at the police station, disrespected and were stripped of their clothes at that place. Upon a promise that he would be released he had implicated his brother Gulab and that he had resiled from his confession as early as 6th December 1969 vide application (Exh. 13-B).
He denied that he had gone to Ratodero. Appellant Gulab has stated that he was implicated at the instance of Jalbanie. He further alleged against him that he had demanded Rs, 1,000 as bribe in another case, in which his nephew, Rasul Bux, had received injuries and this had led to a fight between him and the police officer. He had also reported this matter to the Anti-Corruption Police.
Both the appellants had denied having pointed out the place where the body of the deceased was buried. They led no evidence in defence.
6. The conviction of appellant Ali Akber rests on the circumstantial evidence of Mst. Namoi and her husband Gulab alias Motan, the judicial confession and his pointation of the place from where the dead body was dug up. The testimony of Mst. Namoi and Gulab alias Motan is to the effect that at `tipahri' time the deceased had accompanied Ali Akber from their house to village Kohri. This is an incriminating circumstance, upon which the prosecution relies to establish that the deceased was last seen alive in the company of appellant Ali Akber. Village Kohri is about 3 miles away from Ratodero. The prosecution has not collected any evidence to show that the deceased after leaving the house was seen along with appellant Ali Akbar either in Ratodero town or on the way leading to that village. The possibility of Ali Akbar having separated from the deceased soon after leaving the house has not been altogether excluded. According to the doctor, the deceased could have been killed at any time within 5 days. It was, therefore, possible that the deceased may not have been killed on the day he had accom panied appellant All Akbar. In this context, this piece of circumstantial evidence loses its weight and the possibility of his having been killed on any other day subsequent to that day is a plausible factor. The trial Court has laid emphasis on this piece of circumstantial evidence and has regarded it as of "great importance". It has also observed that "there is no reason for them to spin out something from their imagination and to implicate accused All Akbar with whom they have no enmity whatsoever as none has been suggested in their cross- examination or otherwise." The question is not one of the credibility of these witnesses but to what extent their evidence goes to incriminate this appellant. Even though this appellant has denied having visited Ratodero and has accordingly not explained this piece of circumstantial evidence against him yet the onus is still on the prosecution to exclude all doubts. On an examination of this piece of circumstantial evidence we are inclined to feel that the plausibility of an innocent possibility such as the one pointed out above has not been excluded. For this reason not much weight can be attached to this piece of evidence.
7. The trial Court has again placed reliance on the case of Abdul Samad v. State for emphasising that the evidence of these two witnesses was sufficient. The circumstances of that case are altogether different and a decision in a criminal case cannot be used as a precedent, for each case has to be decided on its own facts.
8. The next piece of evidence against appellant Ali Akbar is his judicial confession. There are two glaring defects in it One is that it is self-exculpatory and the other is that it was recorded upon oath. A perusal of the confession shows that he had declined to be a party to the murder of deceased Muhammad Hasan and at the same time proclaimed that it was a crime and that it could not be concealed. He even did not take part in the burial of the deceased. He has only incriminated himself to the extent that he had accompanied appellant Gulab along with two others, namely, Mevo and Bido in that mission. He also went to the extent of saying that it was appellant Gulab who had pointed out the place from where the dead body of the deceased was dug up. We fail to see how his statement could be treated as a confession and relied on for his conviction. The trial Court nevertheless accepted it upon the reasoning that he knew the evil intention of appellant Gulab yet he did not disassociate himself from it and thus disposed of this objection. We do not see how upon this ground can a self-exculpatory confession become relevant against its maker. There is wealth of case-law on the subject that a self-exculpatory statement does not amount to a confession. It is not necessary here to recall those precedents as the proposition is now well-settled.
9.The next defect relates to the recording of the confession on oath. This conclusion flows from a statement recorded in the confession before the actual narration. It reads : "After giving all these warnings, the accused is asked to give his true statement which he believes to be true before God Almighty. As such accused Ali Akbar gives the following statement."
There can be no two opinions upon this question that it was recorded, as the language shows, on oath. How a confession is to be recorded as provided by sections 164 and 364, Cr. P. C. These provisions nowhere lay down that it should be recorded on oath. The reason behind it is that there should not be a fear of any kind. Under the circumstances, we do not see how his confession can be relevant within the meaning of section 24 of the Evidence Act. The trial Court while considering this argument has merely rejected it upon the reasoning that the words do not amount to an oath such as is administered to a witness. The emphasis upon the words is not the criterion but it is the effect that the words are likely to produce which is the main consideration. We would accordingly for the reasons given above regard the confession as irrelevant.
10.The last piece of evidence against this appellant relates to the pointation of the place from where the dead body was dug up. It is also of no value. It is clear from the evidence of the investigating officer that Mst. Namoi and her husband were present at the police station on 17th November 1969 before this appellant and Gulab had volunteered to point out the place. Mst. Namoi was confronted with her statement made in the committal Court vide Exh. 25, wherein she admitted that the investigating officer had told her that the dead body of the deceased had been found at a short distance from village Kohri. This was before the actual pointation took place. If this was so then the question of discovery of the dead body could not be regarded as an incriminating1 piece of evidence as the fact was -already known. This aspect of the case is further strengthened' by the presence of some persons standing near the place before the investigating officer and the mashir had reached there. Even the son of the deceased was there. The place from where the body was dug up was not at a place, of which this appellant could alone be said to have an exclusive knowledge, for it was known to other persons and according to the testimony of Muhammad Ibrahim, it was near the track which led to village Kohri. No secrecy was attached to the place and under the circumstances, exclusive knowledge cannot be attributed to this appellant. We would not therefore take this piece of circumstance into consideration against the appellant. Having considered all the three pieces of evidence against the appellant we find that the prosecution has failed to establish its case against him beyond reasonable doubt.
11.The evidence against appellant Gulab rests on the part assigned to him in the judicial confession, the pointation of the place from where the body was dug up and the seizure of his licensed gun. Having held that the confession of appellant Ali Akbar was irrelevant it cannot be used for any purpose against this appellant. Even under section 30 of the Evidence Act it can only be taken into consideration along with the other pieces of evidence but by itself it is not worthy of any weight against him. The licensed gun has not been proved as a crime weapon and, therefore, the seizure of the gun cannot be used as an incriminating piece of evidence against him. Lastly, the pointation of the place is also of no value, for even if we were to accept, that the fact was not known to the investigating officer, still it was appellant Ali Akbar who had pointed it out first and, therefore, the fact was already discovered. It could not be rediscovered on the pointation of this appellant. We have, however, upon the reasoning given above discarded this piece of evidence even against appellant Ali Akbar and in any case it cannot be taken into consideration against this appellant. The prosecution has even in the case of this appellant failed to establish its case beyond reasonable doubt.
12.At the time of hearing of the reference and the appeal Mr. Muhammad Hayat Junejo appeared for appellant Gulab. He, however, stated that Mr. Hafeez Pirzada had orally sent him a message to argue the case of appellant Ali Akbar as well. We, however, considered that legally Mr. Muhammad Hayat Junejo could not represent appellant Ali Akbar and we accordingly treated his appeal as from jail. However, we are indebted to Mr. Muhammad Hayat Junejo for assisting us in appraising the case of appellant Ali Akbar as well.
13.For the foregoing reasons, we would set aside their convictions and the sentences and accept their appeal. The death sentence is not confirmed and the reference is rejected. PLD 1964 SC 167