Imdadally H. Agha, J.--The appellants Dhani Bux and Phatoo alias Fateh Muhammad herein were tried by the learned Sessions Judge, Tharparkar at Mirpurkhas and the former was convicted under section 302 read with sections 34, 392 read with sections 397, P. P. C. and sections 13-D of the West Pakistan Arms Act while the latter was convicted under 'section 302 read with sections 34 and 392, P. P. C. Both the appellants were sentenced to death under section 302 read with section 34, P. P. C.
Appellant Dhani Bux was awarded 7 years R. I. under section 392 read with 397 and two years R. I. under section 13-D of the West Pakistan Arms Act. The appellant Phatoo was sentenced to 4 years R. T. under section 392, P. P. C. The sentences of imprisonment of appellant Dhani Bux were ordered to run concurrently and it is also stated by the learned Sessions Judge that the sentences of imprison ments awarded to the appellants would not take effect in case their death sentences are confirmed.
2. The 'appellants have now appealed and their case is also before us by way of confirmation of death sentences imposed upon them. This judgment will dispose of both the appeal of the appellants and the reference for confirmation of the death sentences under section 374, Cr. P. C.
3. The facts of the prosecution case briefly are these. Deceased Salamo, one of the victims of the present crime, was sister's husband of the complainant Lali (P. W. 4). They both resided at Village Jhurbi which was about 8 miles front Mirpurkhas town. Both of them did the business of selling milk which they used to take from their village to Mirpurkhas where they sold it. The occurrence in this case took place on 26th of May 1968 at about 8-30 p.m.
4. On the day of the incident complainant and the deceased had come on cycles from their village with the milk-cans to deliver milk at several places in Mirpurkhas town. They had arrived at Mirpurkhas at about 5-30 p.m. and left it together at sun set time. They carried separate milk-cans on their cycles. The complainant had received Rs. 10 from his customers but he did not know, as he states, as to how much the deceased had recovered from his custo mers. When both the complainant and the deceased reached bridge of Jamrao canal about one mile away from their village they saw two persons sitting on the bridge. These persons ordered them to stop their cycles as a consequence of which they stopped and got down from the cycles. One of the robbers was armed with a revolver and he also carried a torch in his hand which he had lighted. The man with the revolver who might be stated was appellant Dhani Bux, fired the revolver in the air on account of which the complainant and the deceased got frightened and told the robbers not to kill them as they were prepared to surrender everything they had. The complainant then gave Rs. 10 which he had to the robbers and the deceased gave up his wrist watch, cash and pocket book in which he had written the milk account. The robber with the revolver then fired two shots at the complainant but they missed apd he laid down on the ground. Then the fourth shot was fired at the deceased who cried "Hai Main Margaya". The two robbers then left the complainant and the deceased, and went back by the inspection path of Jamrao canal up to the stream. The complainant then went over to the deceased Salamo and found that he had been hit by the bullet on the chest and he was bleeding. The complainant went and brought water in the lid of the milk-can and by that time deceased Salamo had expired. He then ran up to his village Jhurbi and called Ali Nawaz, Luqman (P. W. 6) who was a B. Member of his village, Jumma and Taqi. He informed them that the deceased Salamo had been murdered, by the robbers and they accompanied him to the scene.
Thereafter, the complainant and P. W. Luqman came to Mirpur khas where the complainant lodged his report at taluka police station at about 11-30 p.m.
5. The First Information Report which is Exit. 12 on record was registered by A. S. I. P. Talib Hussain Shah (P. W. 11). After recording the F. I. R. the A. S. I. P. visited the scene at 12-30 after midnight. He arranged for guard over the dead body of deceased Salamo and directed B. D. Member P. W.
Luqman to arrange for a tracker. The A. S. I. P. stayed there for the night and on the next morning he inspected the scene in presence of two mashirs, namely, Jumma Khan (P. W. 7) and another. They found two cycles and milk-cans lying there. They also saw the dead body of deceased Salamo lying there with bullet wound on the chest and there was blood on the ground. The blood-stained earth and a pair of slippers of the deceased were secured from the scene of offence. At a distance of about 15 feet from the dead body four empty revolver bullets were also found lying which were taken into possession by the A. S. I. P. and were sealed then and there on the spot. A mashimama Exh. 19 was prepared regarding the scene of offence and the recovery of the empty bullets. Inquest report Exh. 20 of the dead body of the deceased was also prepared in the presence of the same mashirs. The dead body was then despatched through Foot Constable tjordhan P. W. 3 to Medical Officer Civil Hospital, Mirpurkhas for post mortem examination. At the scene footprints of two persons in slippers were also observed which were first tracked forward but they were lost. Then they were tracked from the scene backwards up to Lattghani village which was about a distance of 3 miles from the scene. There the A. S. I. P. got a clue about the two men who had visited the village from one Kamber, since deceased, an old man who died before his evidence could be recorded in the committal Court. The A. S. 1. P. then recorded the statements of various witnesses under section 161, Cr. P. C.
6. On 28th May 1968 the A. S. I. P. received spy informa tion that the two men who were wanted for the present crime were working in the Saw Mill at Sindhri Road, Mirpurkhas. T he A. S. 1. P. accordingly alongwith mashirs Haroon (P. W. 9) and Kadir Bux went to the Saw Mill and on the road outside the mill he found the present two appellants standing. Appellant Dhani Bux had a bundle which was opened in presence of the mashirs and was found to contain two pairs of Shalwar and Khamis, one ever ready torch in working order and one Citizen watch with black strap. These articles were taken into possession by the A. S. I. P. and the appellants at rested under a mashimama Exh. 29 which was prepared. It is alleged that the appellant Dhani Bux then stated to the A. S- I. and the said mashirs that he had buried the revolver at Kahoo-jo-Daro and he would point out the place. It is also alleged that the appellant Phatoo too stated to the A. S. 1. P. and the mashirs that he would point out the same place where the" revolver was buried. The A. S. 1. P. and the said mashirs then accompanied the appellants to Kohoo-jo- Daro. The A. S,
1. P. had left appellant Phatoo at a distance of 100 paces from the Kahoo-jo-Daro while appellant Dhani Bux alone led him and the mashirs in between two sand dunes and pointed out a place. Appellant Dhani Bux was then taken aside and the other appellant Phatoo was asked to point out the place.
The latter also led the A. S. I. P. and the mashirs to the same place that had been pointed out by appellant Dhani Bux. The appellant Dhani Bux then dug out the revolver which was buried about 3 feet deep. The revolver was wrapped in a handkerchief which was loaded with five rounds. It was taken into possession alongwith the bullets and made into a sealed parcel. A mashimama of this recovery Exh. 30 was prepared. The A. S. I. P. then brought both the appellants to City Police Station, Mirpurkhas where he lodged report regarding recovery of the unlicensed revolver. Thereafter he took the appellants to taluka police station.
7. On 29th May 1968, that is, on the next day the appellants were produced by the A. S. I. P. before the Mukhtiarkar and F. C. M. Mirpurkhas for recording their judicial confessions. They made their judicial confessions and were remanded to judicial custody. The A. S. I, P. had shown the watch recovered from appellant Dhani Bux to the complainant who had identified it to be that of deceased Salamo. On 7th June 1968 the A. S. I. P. held foot-print test of the appellants and their identification parade at District Jail in presence of the Superintendant of the Jail and these tests were supervised by a Third Class Magistrate, who has not been examined. The tracker was Karim Bux (P. W. 10) who picked out the foot-prints of both the persons and a mashirnama Exit. 23 was prepared and attested by Mashirs Ghulam Rasool (P. W. 8) and another. Then the identification test was held through the complainant and he picked out appellant Phatoo only. A Mashirnama Exit. 24 was prepared. The A. S. I. P. then handed over the case papers to S. H. O. Mansabdar. The latter scut the revolver and the crime empties to the Ballistic Expert at Karachi and then he challaned the appellants on 12th June 1968 whereafter they were committed to the Court of Session, at which they took their trial with the result already mentioned above.
8. When questioned under section 342, Cr. P. C. both appellants denied the prosecution allegations and professed innocence.
9. Appellant Dhani Bux in his statement in the committal Court disclaimed the wrist watch alleged to have been secured from him but in his statement at the trial claimed the watch and the torch.
He said that he had purchased the watch from one Allahdino Khaskheli 6 months prior to this case.
Regarding his judicial confession which is Exh. 16 he stated that he did not make any such confession before the Mukhtiarkar and F. C. M., Mirpurkhas but the latter wrote out the confession himself.
10. Appellant Phatoo regarding his judicial confession Exh. 15 stated that he did not make any such confession but the Mukh tiarkar & F. C. M. had taken his thumb mark on the confession which he had already written himself. Regarding the prosecution witnesses he said that they were deposing at the instance of the police.
11. None of the appellants led any evidence in defence.
12. There can be no manner of doubt that the deceased Salamo was killed. The evidence of Dr. Mohammad Umer, who performed the post-mortem examination on the dead body of the deceased is conclusive on the point. This doctor in his deposition in the committal Court which was brought on record at the trial as Exh. 38 states that on external examination of the dead body he found the following injuries on it :--
1. Both post-mortem rigidity and radity were present. Signs of decompositions were also present.
Whitish vomitus containing food matter was coming out of nose and mouth.
2. There was an oral wound 4/5" X Yx thorasix cavity deep (directed inward and backward) at about 1^" below the inner end of the left collar bone. Blacking of the margins of the wound were present but the margins were clear.
13. On internal examination of the dead body he found the following damage done to it :-- "On internal examination 1 found subcutaneous and muscular bleeding upper part of the left side of the thorasix wall. There was an oral opening in the second inter costal space at its inner end -"x 1/3" left side of the chest cavity was full of blood. Left side plura was ruptured in the upper part, at the level of second inter costal space. On examination of left lung the upper part of the lung was congested. It was pierced through and through about 1Y below the apex wound. On the anterior surface was circular and Y in diameter. That on the posterior surface was also in diameter. Heart was normal in size. Left side was empty and right contained a few militres of unclotted blood.
Abdomen vigres were normal."
14. From the external and the internal examination of the dead body the doctor was of the opinion that the cause of death in this case was haemorrhage from the lung due to firearm injury and shock.
15. The doctor's evidence has not been challenged by the learned counsel for the appellants and we see no reason not to rely on it. Hence we find that the prosecution has conclusively proved beyond all reasonable doubt that the deceased Salamo was killed by means of a firearm injury.
16. We will now take up the case of the appellants and discuss each of them separately.
17. The evidence of the identification test in which it is alleged that the complaiuant picked out the appellant Phatoo has not been relied upon by the learned Sessions Judge and we agree with him for the reasons given by him that this evidence is unreliable. Excluding this evidence what remains against the appellant Phatoo is his judicial confession, judicial confession of the other appellant Dhani Bux and the shod foot-print test held through the tracker P. W. Karim Bux. It might be straight away said that since this foot-print test was of shod foot prints it is clearly practically of no value and hence no reliance can be placed on it because the shod foot-print test is always unreliable piece of evidence unless a mould of the foot-print test is prepared and the distinctive features of the foot prints are pointed out by the tracker. In the present case no such mould was prepared nor the tracker has shown any distinctive features of the foot-prints hence the result of this test is obviously an unreliable piece of evidence.
18. That leaves only the two judicial confessions of the appellants. The judicial confession of appellant Phatoo which is Exh. 15 reads as follows :-- "I am working on the Saw Machine of Muhammad Hussain, 4- 5 days prior I have obtained 3 days' leave due to injury on my hand. On the day when I obtained leave, Dhani Bux son of Molam who is my caste-fellow came to me from Jam's village. We both went to Sherwah. We stayed one night there and in the evening of next day we returned to Mirpurkhas on foot. Sun was set at Jhurbi bridge. We sat down on Jhurbi bridge. Dhani Bux had a torch and a revolver after some time two men were coming on cycles.
When they came nearer, Dhani Bux threw torch light on them and cried that whatever they possess throw towards us. The men on the cycles got down from the cycles and abused to Dhani Bux and approach to attack on Dhani Bux with cycle pump, on which Dhani Bux fired two shots but they did not care to this. Then he fired third short which struck to one of them. ITe gave his wrist watch and five rupees to Dhani Bux. The other man also gave 10 rupees to Dhani Bux. We left them there and came to Mirpurkhas. Revolver, wrist watch and amount etc., were buried in a pit at Kahoo-jo-daro.
After that we came at the Saw Machine and slept there. On the next day at 9 a.m. Subedar arrested us, to whom we gave the watch and revolver."
It will be seen that this confession is not inculpatory as it puts the entire blame on the other appellant Dhani Bux. In any case this being the only evidence against appellant Phatoo and being a retracted confession cannot be relied upon unless it is corro borated in material particulars. This corroboration obviously cannot be furnished by the confession of the other appellant as the law is very clear that the confession of a co-accused is a very weak type of evidence. We, therefore find that in this case the confession of the other appellant Dhani Bux which obviously is not substantive evidence cannot be held to be sufficient corrobora tion to the confession of the appellant Phatoo as such his own retracted judicial confession without the necessary corroboration cannot form the basis of his conviction. It might be said that the appellant Phatoo has also pointed out the place where the revolver was found buried but this place he has pointed out after the other appellant Dhani Bux had already pointed out the same place. Therefore, his pointation of the place already known would not be covered by section 27 of the Evidence Act as such this circumstance is also of no avail to the prosecution.
19. It will thus be seen that against appellant Phatoo there is not sufficient evidence to sustain his conviction as such he is given the benefit of doubt and acquitted.
20. Coming to the case of the appellant Dhani Bnx we find that the prosecution has adduced the following pieces of evidence against him :--
(1) His confession.
(2) Recovery of wrist-watch of the deceased from him.
(3) Production of the revolver by him.
(4) Ballistic Expert's testimony.
(5) Shod foot-print tests.
21. The learned Sessions Judge has not relied upon the ocular testimony of complainant Lali regarding identification test as already stated above earlier as such this evidence as well as the evidence regarding the shod foot-print test against appellant Dhani Bux for the reasons already given have to be excluded from con sideration which leaves the first four items of evidence against him specified above.
22. The appellant Dhani Bux has made a judicial confession which is Exh. 16 and it reads as under "I am originally resident of Jam's village. Phatoo alias Fateh Muhammad is my caste fellow. He used to work at the Saw Machine of Muhammad Hussain. Five days prior I came to Mirpurkhas for recreation, and went to Phatoo. There was wound on the hand of Phatoo. Hence he obtained three days permission (leave). We both went to Sherwah and stayed one night there. On the next day evening we returned to Mirpurkhas. We sat on the Jamrao bridge. I had one revolver and one torch with me. After some time darkness spread. We saw two persons coming on the cycles. When they came nearer, I put torch light on their faces and ordered to surrender everything which they hold.
Both the persons got down from the cycles and started abusing us. One of them was approaching towards me with a cycle pump for killing me. I fired two times but he did not care. When I fired third time which struck him. He gave me a wrist watch and five rupees. We left him there and came to Mirpurkhas. We buried wrist watch, revolver and money etc., in a pit at Kahoo-jo-daro, and came to the Saw Machine of Muhammad Hussain and slept there. Next day in the morning Subedar came and arrested us to whom we dug out the watch and revolver etc."
23. The prosecution has examined Mr. Hidayatullah Mukh- tiarkar and F. C. M. Hala (P. W. 5), who has recorded this judicial confession and his deposition clearly shows that he has observed all the formalities of recording the judicial confession properly and we find no reason not to rely upon his evidence. This confession was sought to be attacked by the learned counsel for the appellant on the ground that the Mukhtiarkar and F. C. M. had made both the appellants to stand in his Court- room and recorded judicial confession of each of them in the presence of other, therefore, the judicial confession of appellant Dhani Bux ought not to be relied upon. But this contention obviously does not impress us as the Court-room of the Mukhtiarkar and F. C. M. where he recorded the judicial confession was 40 feet long and he has said that he made the other appellant to stand in a corner of the room from where he could not hear the second appellant giving his judicial confession. We, therefore find that the judicial confession made by appellant Dhani Bux is reliable as no question of affecting this confession adversely has been asked from any other witness.
Furthermore, as will be seen presently this judicial confession is sufficiently corroborated.
24. The next is the recovery of the wrist-watch of the deceased fjrom appellant Dhani Bux. A. S. I. P.
Talib Hussain Shah clearly deposes that when he arrested this appellant in presence of mashirs Haroon (P. W. 9) and Kadir Bux he recovered wrist watch also from the bundle that this appellant was carrying and this wrist watch was identified by the complainant to be belonging to the deceased Salamo. The mashir P. W. Haroon had supported the A. S. I. P. and so also the complainant who says that he identified the wrist watch of the deceased shown to him by the A. S. I. P. We do not find any particular reason not to rely upon all this evidence and the learned counsel for the appellant has not been able to challenge it successfully. The prosecution has thus proved that the wrist watch of the deceased was recovered from the possession of the appellant barely two days after the occurrence.
25. The next piece of evidence is the production of the revolver by appellant Dhani Bux and the recovery of 4 empty revolver bullets from the scene of offence which were sent to the Ballistic Expert Mukhtar Ahmad (P. W. 2) alongwith the revolver of the appellant. The A. S. I. P. and mashir Haroon (P. W. 9) clearly stated that it was the appellant Dhani Bux who dug out the revolver from the Kahoo-jo-daro where he had taken them to point it out. This evidence was only challenged on the ground that the mashir P. W. Haroon is resident of a place 4 or 5 miles away from Mirpurkhas where Kahoo-jo-daro is and he has acted several times as mashir for police, therefore, he ought not to be relied upon. Even if this be so, we have the evidence of A. S. I. P. Talib Hussain Shah, who appears to be a trustworthy witness and he has no reason to falsely state all these facts. His word alone would be sufficient to prove the fact of production of the revolver as under section 134 of the Evidence Act testimony of one witness is sufficient to prove any relevant fact. Furthermore, four empty revolver bullets were secured from the scene of offence as stated by the A. S. I. P. and the Mashirs Juma Khan (P. W. 7) which were sent to the Ballistic Expert Mukhtar Ahmed (P. W. 2) along - with the revolver produced ay the appellant Dhani Bux. P. W. Mukhtar Ahmad has supported the prosecution and stated in his evidence that on his test he found that the empty revolver bullets sent to him were fired from the revolver of Dhani Bux. The learned counsel for the appellants was not able to challenge the testimony of P. W. Mukhtar Ahmad so as to show to be unworthy of credit.
We also see no reason not rely on it as he has given several grounds for his opinion that he has expressed and they appeal to the common sense. This particularly is a strong piece of evidence connecting the appellant Dhani Bux with the crime.
26. We, therefore, find that there is enough evidence against appellant Dhani Bux which proves his guilt. His judicial confession is corroborated by the production of revolver by him coupled with the Ballistic Expert's evidence as well as the recovery of the wrist watch of the deceased from his possession. Consequently we find that the case against him has been proved by the prosecution beyond a reasonable doubt as such we find that he has been rightly convicted for the offence with which he has been charged. We also see no reason to interfere with the sentences awarded to him.
27. For the foregoing reasons we find that the appeal of the appellant Dhani Bux has no substance and it is accordingly dismissed. His conviction and sentences are maintained. The death sentence awarded to him is confirmed. The sentence of imprisonment imposed upon him shall obviously not come into effect when the sentence of death is executed upon him. .