1. ABDUL RASHID, C. J.-This is an appeal, by the special leave, from a decision of the Chief Court of Sind confirming the sentences of death anal three years' rigorous imprisonment awarded to the appellant under sections 302 and 392 of the P. P. C. By the Additional Sessions Judge of Dadu.
2. The deceased Morio left his home at Thano Bhula Khan on the morning of the 25th June 1950. His object in leaving home was to go to Janghri to invite some of his friends to attend the marriage of his brother Jaffar which was fixed for the evening of the 26th June. He reached Janghri, a distance of 10 miles from his own village, on his camel on the 25th June in the afternoon and invited his friends Talib to attend the wedding the next day. The deceased then left Janghri for his own village.
3. As he did not arrive at Thano Bhula Khan till the evening of the 26th, his absence caused a great deal of anxiety to his brother Waroo and his other relatives. On the morning of the 27th June Waroo hired a camel and proceeded towards Janghri in search of his brother. At Janghri, Talib informed him that Morio had left on the afternoon of the 25th after inviting him to attend the marriage.
4. Waroo complainant then started on the return journey to Thano Bhula Khan. At a distance of about 5 miles from Janghri he found a place where there were marks of the sitting of a camel and some drops Near the marks of the came: were also two footprints. As soon as lie discovered these marks of blood and footprints, lie suspected that his brother had been the victim of some assault. He returned to his village to fetch a number of companions and then went back to the place where the blood was found. His relations formed a tracking party and ultimately reached Sambaic Jabal where they discovered the dead body of Morio. A report about the discovery of the dead body was lodged at the police station at 4-0 p.m. On the 27th.
5. The appellant was arrested at about 2-0 p.m. On the 10th July by Ali Ahmad, Head Constable, in a jungle at a distance of about 4 miles from Hyderabad. At 8-0 p.m. The same day, the appellant is stated to have made a confession before Mr. Ghulam Muhammad Mahalkari, Magistrate 2nd class.
6. As this confession is the principal item of evidence against the appellant, it is necessary to reproduce it in extensor :-- "About 15 days ago I and my brother, after filling our water bag from the well of Gidlomal near the well of Kashiram at 1--pahass after sunrise proceeded towards Darwat road from Bula Khan. At about 8 p.m. Near Janghri Bungalows we met deceased Morio son of Motio Gado whom I knew before and he was on the camel. I told him to allow me to sit behind him and charge Re. 1 as fare. .
7. On this he abused me and said that I will fuck you and your rupee. Then he proceeded towards Mitho Darwat. I told my brother Ramun who was with me to stay there and I was just coming. Then I retracted my steps and crossed Darwat and the bed of Nain Baran and saw Morio going on his camel. I quickly overtook him and seized the nose string of the camel which sat down and asked Morio who got down why he has abused me. Again he gave same abuses and took out hatchet and became ready to attack. I seized the hatchet and gave blow on the neck of the deceased with the lathi which I had. He fell down and again got up. Whereupon I again gave a lathi blow on his neck. He fell down on the Kandi and became unconscious. On this I placed him on the camel and tied him with the rope and led the camel by the string and threw him in one pit. I feared lest he might survive and implicate me as he knew me and may get me arrested so I may finish him once for all. I picked up his hatchet and gave him blow on his neck. When I was satisfied that he was not alive I threw him there and picked up the string of the camel and drove it. I also left the hatchet by the side of the deceased and the lathi at the scene of offence. Then 1 had the camel and took Darwat road. When I crossed Darwat I found my brother whom I had left behind coming slowly and met me and said that it is the camel of Morio, whereupon I told him that I had hired the camel of Morio now ride and let us go, Then we both rode the camel and crossed Kotri Bridge. It was 4 p.m.
8. Or 5 p.m. Then we directly went to Tando Ghulamali where I exchanged the camel for a horse with Jumo Mirbahar. But before this one man had requested me to exchange the camel for a bullock but we did not agree. I do not know him. Then I took the horse to Hyderabad town and I had already left my brother in Hyderabad. He met me on return. I took the horse to market for sale but security was demanded from me and I could not get so the horse was not sold. I returned with horse and gave it to my brother who took it to his acquaintance and said that he would sell it again in the market next morning. Then I slept under a Bath tree. Next morning I went to the friend of my brother about whom he had given me the address and made enquiry about my brother and horse. I came to know that my brother Ramun had taken away the horse to some place which was not known. I do not know the friend of my brother. Then I worked as a labourer at Hyderabad, where Mir Muhammad Pallari brother of Ali Mohamed Jamadar came to me and requested me to assist him in taking the bullock to Karachi whereupon I told him that we will go tomorrow. On the following day he brought two persons and they took me to Kotri where I was arrested by Police and I have been brought to Thana Bula Khan.
9. This confession presents several unsatisfactory features. According to the confession, the motive for the crime was an abuse which bad been uttered by the deceased against the appellant. As soon as the appellant heard the abuse, which was not of a very provocative character, he did not take any objection to it. After the abuse had been uttered, the appellant allowed Morio deceased to proceed on his journey. A few minutes after the deceased had left, the appellant conceived the idea of pursuing the deceased, intercepting him and his camel and of killing him. This portion of the confession appears to me to be incredible and unconvincing. If the appellant resented the abuse, he would have grappled ;with the deceased then and there and would not have allowed the deceased to resume his journey. On the other hand, had he not resented the abuse uttered by the deceased he would not have taken the trouble of pursuing him for several miles for a fight in order to avenge himself for the abuse that had been showered on him about an hour or two earlier.
10. There was no previous enmity between the parties and an abuse of this type would not provide sufficient motive for the appellant to murder the deceased. No reason has been given in the confession for the presence of the appellant near Janghri Bungalows. Ordinarily, a resident of Bhula Khan would not go as far as Janghri without rhyme or reason and then want to return to his own village by riding a camel as soon as he had got there.
11. The account of the injuries inflicted on the deceased, as given in the confession, is contradicted by the inquest report. Accord--ing to the confession, the appellant gave a blow on the neck o the deceased with his lathi which felled the latter to the ground. When he got up again, he was given another lath blow on the neck. Thereafter, the deceased was tied with a rope and carried on the camel for a distance of about 3 miles. In order to finish off the deceased ultimately, the appellant is stated to have given him one blow on the neck with the hatchet. If the confession were true one would find three injuries two with a blunt weapon and one with a sharp-edged weapon on the neck of the victim. The injuries actually found on the person of deceased when the dead body was discovered are described as follows in the- inquest report :-- "There were lath! Blows on the left side of the body, there were lathi signs on the knee of the left side of the leg. The left arm is broken from the elbow on account of lathi blows. The right is eaten away by the animals up to shoulder. There is lath! Blow on the right side of the body and there is a hatchet blow on the nose. There are two hatchet blows in the neck. The hatchet is stuck in the throat.
12. The principal item of evidence which is relied upon as corroboration of the confession is the sale by the appellant of three pieces of the saddlery of the camel known as Khurjin, Rili and Farasi to Arab (P. W. 23) and Lakhano (P. W. 24). The confession, however, shows that the appellant went to Tando Ghulamali early on the morning of the 26th and exchanged the camel of the deceased with the horse of Jumo Mir Bahar. It appears, therefore, that on the morning of the 26th the camel presumably with its saddlery had been given over by the appellant to Jumo Mir Bahar. That is why no mention whatever is made in the confession of the sale of Khurjin, Farasi and Rill. The confession was recorded on the 10th of July while according to the statement of the Sub-Inspector the two witnesses Arab and Lakhano were traced on the 13th July. It is obvious therefore, that not only is the evidence of Arab and Lakhano unsatisfactory, but it does not provide any corroboration of the confession of the accused. In fact, to a certain extent, it contradicts the confession. Had any pieces of the saddlery of the camel of the deceased been sold by the appellant to these two witnesses this fact would undoubtedly have been mentioned in the detailed confession which the appellant made before the Magistrate on the 10th July.
13. The learned Judges of the Sind Chief Court state towards the end of the judgment that the real question in this case is whether the confession of the accused, retracted as it is, should be relied upon, regard being had to the evidence offered by the prosecution as corroboration. They further state that the articles of saddlery which had been identified as belonging to the deceased were recover d from Lakhano and Arab, and that these provided strong corroboration of the confession of the appellant. They, however, overlooked the fact that the sale of these articles of saddlery by the appellant to Lakhano and Arab does not find a mention in the confession of the accused. The alleged sale cannot, therefore, be regarded as corroboration of the confession. Moreover the alleged sale to Lakhano and Arab is valueless as an independent piece 'of evidence as the confession makes it clear that on the morning of the 26th the appellant had exchanged the camel of the deoeased with the horse of Jumo Mir Bahar. For reasons best known to the prosecution Jumo Mir Bahar was not produced as a witness. It was for Jumo Mir Bahar to state that he exchanged the horse with the camel, but that the saddlery of the camel wa4 removed by the appellant before the exchange was effected.
14. The learned Judges of the Sind Chief Court did not place any reliance on the identification of the lathi recovered from the place of occurrence as the lathi that belonged to the appellant. They also regarded the evidence of footprints as a minor matter. The person who is alleged to have identified the footprints had seen the footprints at the place of occurrence 20 days before he was asked to identify the footprints of the appellant. He had made no moulds of the footprints found at the place of occurrence and he is supposed to have carried an impression of those footprints in his mind for a period of three weeks. Evidence of this description must be totally discarded.
15. To sum up, I find that in this case the confession of the accused is full of improbabilities and is in certain respect's incredible ; that it is in conflict with the medical evidence ; and that the evidence of Lakhano and others provides no corrobora--tion whatever of the confession of the appellant. In these circumstances, I am constrained to hold that the confession of the appellant has not been corroborated in any material particular by any reliable evidence. I would, accordingly, accept this appeal, and acquit the appellant.