1. ABDUL KADIR SHAIKH, J.-This double murder case has conic up before us on the reference by the Additional Sessions Judge, Tharparkar at Sanghar for the confirmation of the death sentences under section 302/34, P. P. C. Imposed upon Umedali Umrani, aged 40 year;, and Wazir Umrani, aged 25 years and on a joint appeal filed by the convicts.
2. The incident occurred on the: outskirts of the town of Tando Adam District Hyderabad, the to deceased were important public figures, Dr. Tahir Hussain Siddiki deceased being the Vice- Chairman of Tando Adam Municipal Committee and the ,--other deceased, Babu Fakir Muhammad, was the member of the Municipal Committee as well as the Chairman of the Ward Committee.
3. The prosecution case is sufficiently reflected in the First Information Report itself, which was lodged by Abdul Rashid the brother of deceased Babu Fakir Muhammad within a matter of 2-- hours of the incident, on the 14th of January 1967 at 4 p.m. With Victor Fateh, Additional S. H. O. Of the Tando Adam Police Station. It reads "Complaint is that there island 10-l2 acres of Mr. Khurshid Baig and his relatives in Deh P.I on the Fast of a P.I Minor at a distance of one block away from the minor arid Fie was shaking to sell that land. For seeing that land today oil 14-1-67 at 2-30 p.m. Each Doctor Tapir Hussain Siddiqui, my brother Buboo Fakir Mohd., myself and Aurangzeb Kamdar of Doctor Siddiqui went to see that land.
4. On the south of that land at calls distance there are houses of Umedali Umrani and other Umrani each Wazir, Khair Mohd. Fazil and others. On the way, while going my brother Fakir Mohd. Told that we were going to se the land but Umedali would not like us to purchase the land. As we four after seeing the land of Mirza Khurshid Baig returned and came on the Minor in front of our S. No. 404/2, we heard alarm from the front. We saw that 2 persons Khair Mohd., and Fazil Umrani were standing on the east of the Minor out of whom Khair Mohd. Had revolver in his hand and Fazil had hatchet in his hand and on the West Umedali and Wazir Umrani were standing who also had guns in his hand.
5. Out of whom Umedali challenged and said who are, you to purchase the land, and after saying so the gun men fired gun at us. The gun shots hit my brother Baboo Fakir Mohd. Who fell down and Doctor Tahir Hussain Siddiqui ran towards west .When Umedali- and Wazir went running after him in the `Potato' cultivation and fired guns at him who fell down and I and Aurangzeb Kamdar of Doctor Siddiqui started running and raised cries. On our cries, my brother Nazir shouted from the garden that he was reaching and on his shouts the accused started running and then I and my brother Nazir and Aurangzeb went and saw that my brother Baboo Fakir Muhammad and Doctor Tahir Hussain Siddiqui had died. Then leaving Aurapgzeb and Nazir there at the wards have come to lodge report."
6. After registering the crime, Victor Fateh, the Additional S. H. O. Proceeded for the wardat which was at a distance of about half a mile from the Police Station. He conducted the usual police investigation, during which he sent the bodies of the to deceased to Tando Adam hospital. Dr. Sirajul Haq, the Medical Officer who conducted the post-mortem examination, found the following external injuries on the person of Dr. Tahir Siddiqui.
7. "1. Contused wound 9 c.m. x 6 c.m. x cavity deep involving right eye and frontal area, passing through the middle of right eye brew. The right eye was completely damaged. The opening has been made into cranial cavity through which brain material is visible. There was disfiguration of head clue to multiple fractures of the skull bores. There was blackening around the wound. This was wound of entry.
2. Contused circular wounds 6 c.m. x 5.5 c.m. x cavity deep on the lower part central area front of chest. The packing of the cartridges were lying in the wound."
8. The internal examination revealed extensive damage in that there was sot)-scalp haemorrhage on the occipital right, parietal and frontal regions, fracture of frontal right temporal, the fracture of the floor of the right orbit and base of skull resulting in the destruction of brain matter. Almost whole of left lung with its roots and vessels were damaged. The pellets and packing of cartridges were found inside the body, and these were removed and sent to police under seal.
9. In the opinion of the doctor, all the injuries were anti-mortem caused by a fire-arm like a gun, and the death was due to shock and haemorrhage consequent to the injuries which were fired from close range.
10. On the person of Baboo Fakir Mohd., the doctor noticed the following external damage "1. Contused wound 8 c.m. x 6 c.m. x cavity deep on central part of forehead making an entry into cavity.
2. Lacerated wound 1-- c.m. x -- c.m. x cavity deep in the inner end of the right eye row.
3. Lacerated wound I c.m. x -- c.m. x cavity deep on the middle of the left eye brew, all the three wounds were wounds of entry.
4. Contused wound 4 c.m. x 3 c.m. x cavity deep on central occipital region, brain matter was issuing from the wound. This was wound of exit.
5. Seven circular contused wounds, four measuring 1 c.m. x 1 c.m. x cavity deep and three measuring 1 c.m. x -- c.m. x cavity `deep. All on the area measuring 6 c.m. In diameter situated on the lower part right side back of chest and upper part right lumber region."
11. The internal examination also revealed extensive damage in that the scalp was cut in several places, there were fractures of frontal, both parietal occipital and temporal bones with damage to the brain meninges. There were also fractures of 9th and 10th ribs behind on right side. Pellets had damaged the right kidney, liver etc. Several pellets were found in the body which were recovered and sent to the police under seal.
12. All these injuries also, according to the doctor, were ante---mortem and appeared to have been caused by fire-arm like a gun, in the case of head-wound from very close rage, and the others within a distance of about 10 ft.
13. Ahmed Khan A. S. I. Of the Tando Adam Police Station had accompanied the Additional S. H. O.
14. Victor Fateh and after the usual investigation, at the wardat, the Additional S. H. O. Direct--ed Ahmed Khan to get the accused persons arrested. For this purpose Ahmed Khan returned to the police station to collect a few extra constables for the apprehension of the accused. There he met Manz6r Ahmed Siddiqui D. S. P. Whom he narrated the details of the crime. Both then proceeded for the village of the accused, on the way they picked up to mashirs both Bashirs by name, and arrested the accused Umedali and Wazir from their houses.
15. On interrogation accused Umedali volunteered to produce a gun, and he led the police party to his house from where he brought out a double barrel gun and four cartridges. These articles were recovered in the presence of the mashirs under mashirnama Exh. 30 Wazir accused also volunteered to produce his weapon and he led the police party to the house of Nooral, the brother of Umedah accused, which was also in the same hedge and he produced a single barrel gun from a room in that house. This weapon was also recovered in the presence of the same mashirs under mashirnama Exh. 31.
16. The to other culprits Fazil alias Hashim Umrani and Khair Muhammad Umrani were arrested can the next day, the 15th of January 1967. Fazil accused volunteered to produce a hatchet and led the police party headed by Ahmed Khan A. S. I. To his house from where, under a bedding on a cot, lie produced the weapon which was secured under mashirnaina Exh. 33 in the presence of the same mashies as in the earlier recoveries.
17. On the 15th January 1967 the to accused Umedali and Wazir were sent to the Resident Magistrate Tando Adam for judicial confessions. Mr. Khuda Bux Sohag, Resident Magistrate Tando Adam recorded the judicial confession of Umedali accused in these words "About 8, 9 years ago I and to three other persons were accused in this Court and Baboo Fakir Mohd. Has got the case filed by his hart. Now also I have got on lease the land of Mahajir father of (Khalil Advocate) and my houses are also constructed in that land and cultivate it. This land Khalil had sold to me, but, Baboo Fakir Mohd. Was purchasing the land I entreated him very much for that I have got right over this land because this land was in my possession for 20 years and my houses are also situated on the border of that block of the land on the day before Eid i.e. On Friday at about 10 p. m. I took Quran Sharif to Baboo Fakir Mohd. And went up stairs at his storey. There Doctor Siddiqui was also sitting. I entreated Baboo Fakir Mohd. And give him Quran Sharif. But he, did not listen. Quran Sharif was in my hand and as he slapped me Quran Sharif fell down on the ground. I was very much provoked and then 1 controlled my sentiments and went to my village. Again on the next day oil Saturday in the afternoon Baboo Fakir Mohd, and Doctor Siddiqui and other persons came on that land and on the north near the village Baboo Fakir Mohd. And Doctor Siddiqui were standing there and opened the papers. I was excited and informed my persons. Then they were going back. I then took my gun end Wazir took the gun, of his brother Noor Mohd, and Khair Mohd.
18. And Hasul were standing on the eastern side of the Minor which was dry and I and Wazir stood with gun on this side of the Minor in the jungle. As doctor Siddiqui and Baboo Fakir Mohd. Came I and Wazir fired guns. Baboo fell down and doctor ran ahead. Then we proceeded a few paces in advance and went and killed doctor. There we heard commotion from nearly village. Then we ran towards our village."
19. Wazir accused allegedly confessed his guilt to the following effect : "Last Saturday in the evening I was at my house when Umedali s/o Yar Mohd. Came to me and told that Baboo Fakir Mohd. And Doctor Siddiqui both were standing near our house and I should make guns ready. Then I took gun of Noor Mohd, and Umedali took his own gun. We came near P.I Minor and they also came there after giving record I and Umedali both fired guns first we killed Boboo Fakir i4ohd, and then we killed Doctor Siddiqui. But, to persons Hasul and Khair Mohd were standing on the other side of the Minor. Then we went to our houses running after on hearing commotion of the people. This incident we have done out of spite as Doctor Siddiqui and Baboo Fakir Mohd. Were purchasing our land."
20. The prosecution case at the trial consisted of ocular testimony of three witnesses Abdul Rashid, Aurangzeb and Nazir. Out of whom the first and last witnesses are brothers of deceased Baboo Fakir Mohd. While Aurangzeb was the Kamdar of the deceased Doctor Tahir Hussain Siddiqui. The learned Additional Sessions Judge has held, and very rightly, that it was highly suspicious that although the occurrence took place in a very thickly populated area, yet no one is said to have turned up on the cries of the witnesses Abdul Rashid and Aurangzeb except for the only person Nazir, who is the brother of the deceased Baboo Fakir Mohd. Apart from the fact that these witnesses being closely connected with the to deceased are interested persons, the evidence given by each of them at the trial was, in many respects, extremely discrepant and different from the original story advanced by Abdul Rashid in the F. I. R. Abdul Rashid himself made several improvements, with regard to the details of the incident and also to the motive of the crime. On his own admission Umedali accused was on inimical terms with them for a long period of 8-10 years. It was on this ground that the learned Additional Sessions Judge acquitted the to companions of the appellants, Fazil and Khair Mohd. Accused. In the opinion of the learned Additional Session Judge the prosecution case however stood proved beyond any shadow of doubt on the basis of the judicial confessions of the to appellants and the recoveries of the incriminating articles, namely, the to guns produced by these culprits voluntarily, which have been connected with the crime by the testimony of the ballistic expert. According to the expert the crime empties secured from the scene of offence were fired from the to guns produced by the appellants.
21. Mr. A. K. Brohi the learned counsel for the appellants attacked the judicial confessions of the to accused on several grounds, but let us see what the accused themselves have said in this regard.
22. This is what Umedali accused stated in the Court of the committal Magistrate.
23. "The confession was extracted due to maltreatment. My beard was pulled out. Womenfolk of my family and all my villagers and relatives were hauled up at the P. S. And disgraced. The influential men arrived at the P. S. Such as Mohammad Khan Junejo, the, Minister, Jam Sadik Ali M. N. A., Jam Anwar Ali D. S. Karam Illahi and Raja Umar Hayat and we were threatened to be hanged publicly without trial in case we did not affix our signature on the confession which was already written out.
24. The police was present in the R. M's Chamber where my signature was forcibly obtained on the confession. My condition due to maltreatment was witnessed by Dhani Bux Sand, Advocate, Shahdadpur in Sub-Jail Tando Adam. The then Resident Magistrate was mixed with the investigation. The confession is neither true nor voluntary. The contents are incorrect."
25. At the trial he repeated the same allegations in these words: "The confession is neither voluntary nor true. It was extorted from me due to the maltreatment by the police. My beard was pulled out and womenfolk of my family and all my relatives were brought at the police station and were insulted by the police. Influential men like Mr. Mohammad Khan Junejo, the Minister, Jam Sadik Ali M. N: A. Jam Anwar Ali, D. S. P. Karam Illahi and Raja Umar Hyat S. H. O. Arrived at the police station and we were threatened to be hanged publicly without trial in case we diet not put our signature on the confession which were already written out. The police were present in the Chamber of the R. M. Tando Adam, where my signature was forcibly obtained on the confession. The then Resident Magistrate was mixed up with the investiga--tion of the case.
26. The contents of the confession are not correct."
27. As to the recovery of the gun, his case was that the gun was his own licenced arm, it was incorrect that it smelt of gun-powder when it was recovered by the police; he asserted that it was fired by the police and the opinion was managed through Zafar Khan former S. H. O. Of Tando Adam Police Station who is the brother of the Ballistic Expert, Shah Jehan. When asked what he had to say further he replied "Karam Illahi D. S. P. Had purchased land of Amiruddin Sodhawalla in Deh P.I and the same was already purchased by me from one Siraj. There was litigation in the Courts. Wazir and Khair Mohammad were haris of that land. Co-accused Hashim father of Sohbat Khan had purchased laud from one Idris Pathan, and in order to oust him out from the land accused Hashim has been implicated and so also accused Khair Mohammad and Wazir. Babu Fakir Mohammad and several other had quarrels over lands with other such as Idris, Sharif, Talib etc. I have come to know in jail that, a Tongawalla was with the deceased while the P. Ws. Were not present on the site but as the Tongawalla could not identify the culprits his name was omitted in the F. I. R and his presence on the site has been concealed but his name transpired in the newspapers. We will disclose his name in the Court of Session as for fear of tampering by police. We do not disclose his name now. I will give further statement in the Court of Session."
28. In the Court of Session lie went on further to add: "D. S. P. Karam Illahi had 'purchased land of Amirdin Sodha Wala in Deh P.I which was already purchased by me from one Siraj. There was litigation in the Courts about this land. Wazir and Khair Mohammad were harts of that land. Sohbat Khan, the father of Hashim alias l1asil accused, had purchased the land from one Idris Pathan and, in order to oust him out from that land, my three co-accused have been implicated in this case. Babu Fakir Mohammed had several other disputes over land with others, such as Idris, Shafi, Talib and others.
29. He also produced certified copy of the proceedings under section 107, Cr. P. C. Including the discharge order in the to cases.
30. The statement of Wazir appellant was also to, the same effect as that of his cousin Umedali accused, in both the Courts.
31. Mr. Khudabux Sohag, the Resident Magistrate who recorded the confessions of the to accused was examined at the trial. He admitted that he came to know about the commission of the to murders before the accused were produced before him he had in fact gone to the place of occurrence on that day, this he explained was in his capacity as a citizen of the town. He also admitted that many persons were present in Court, when he recorded the confession of the accused and among others were a few ladies who were gazing at the accused Wazir, and from this he inferred that they may have been related to him. It would be thus noticed that the suggestions of the to accused that their womenfolk were disgraced and hauled up is indicated by the admission as to the presence of their women in Court. It may be also said that the Court room was quite adjacent to the Policy Station, there being only an open space in between the to, which served as an entrance to both the places.
32. It is admitted that the incident in this case created a very great sensation in the town because both the deceased were very influential public figures. This case was given a large publicity in the press, this fact. Was even admitted by the learned Resident Magistrate who had himself gone to the house of Dr. Siddiqui for the purpose of condolence a few days after the murder. From the various circumstances on record, we find it difficult to hold that the confessions of the' appellant were quite voluntary. The learned Magistrate committed several irregularities in the recording of the confessions itself, in that he did not even score of the words `Armed Police' and `Open Court' from the first page of both the printed sheets of the forms of the confessions. Even in the body of the confessions he nowhere recorded that the accused were sent to the judicial lock up on the contrary, he admitted that he did not score out the words from the confessions that "the accused were sent to police custody". According to him, he had put questions to both the accused as to why they were making confessions, but he forgot to mention these while recording the confessions. He also admitted that to failed to record several questions that he put to the accused and the answers that they gave.
33. It is also clear from the record that the investigations of the case was largely influenced by the fact that to important personalities were done to death in broad daylight near the town of Tando Adam.
34. As stated above both the deceased were well known and important personalities, the incident had created quite a sensation, and it was given extensive publicity in the newspapers. The deceased Dr. Tahir Hussain Siddiqui was admittedly related to D. S. P. Karam Illahi and S. I. P. Umer Hayat. It is also on record that both these officers residing at Tando Adam, and Karam Illahi D. S. P. Lived near Tando Adam Police Station. Manzur Ahmed Siddiqui D.S.P.P. W. 16 who was concerned with the investigation of the case, admitted that he knew Karaw Illahi, D. S. P. It would go without saying that Karant Illahi must naturally be very much interested in the murder case of his brother and also be quite concerned with the investiga--tion of the case.
35. With this background, let us now refer to the aspect of the case with regard to the recoveries of the weapons of offences from the to accused. It would be noteworthy to point out firstly that one of the mashirs of the recoveries Bashir son of Bahadur, P, W. 11, is the resident on the land of the deceased Babu Fakir Mohammad in Deh pai as is clear from the Mashirnma, Exh. 32 although he denied in the cross-examination that lie had stated that he was residing there. The mashir Raja Fateh Haider, who acted as a mashir of the wardat, was a contractor of Tando Adam Municipality for the construction and repairs of the pipe--lines and, therefore, he cannot be said to be a totally, disinterested person in the murders of the to deceased, one the Vice --Chairman of the Tai-do Adam Municipal Committee and the either a member and also the Chairman of the Ward Committee, The learned Additional Sessions Judge noticed this aspect of the case and discarded the circumstantial evidence of the recovery of the revolver as regards the co-accused Khair Muhammad is concerned. The evidence of the productions of the weapons of offences from the to appellants and also the crime emptier.", from the wardat has come from the same persons as in the urged on acquitted accused, and we do not, see any reason why the appellants should have been given a different treatment. Moreover, it was urged before us that the unexplained and inordinate delay in forwarding the `weapons of offences from the to appellants to the Expert is yet another factor that throws serious doubts with regard to this circumstantial piece, of evidence. The weapon recovered on the by of the crime, the 14th of January 1967, but were sent to the S. P.Sanghar on the 12 February 1967 and received by the Expert on the 6 of March 1967. Neither the delay in the despatch of these articles has been explained, nor the evidence as to the proper care as to the sealing and dispatch has been adduced. The overall picture of the investigation of the case appears to be highly suspicious and we feel that the pieces of evidence collected the not of that authenticity iv, should be considered reliable for the conviction of the appellants on the serious charges of murder. We also feel fear the same reasons as well as the various. Circumstances on record pointed out above, that it would be unsafe to hold that the confessions of the appellant were voluntarily made. If the judicial confessions are discarded the only other evidence against the appellant is the circumstantial evidence which apart front the fact that it cannot by" itself sustain a conviction, is even otherwise highly tainted as indicated above. As stated earlier, the evidence of the eye witnesses has not been relied upon and rightly so, On these facts, the learned counsel appearing for the State himself conceded that he cannot support the convictions of both the appellants. The reasons are obvious that the appellant are clearly entitled to the benefit of doubt which do arise from the prosecution case itself.
36. For these reasons, this appeal roust succeed and is accordingly allowed. The convicts shall be released forthwith unless they ;ore required in any other case. th th