Imdadally H. Agha, J.--The live appellants herein were tried by the learned Sessions Judge, Tharparkar at Mirpurkhas and convicted, Appellants Sultan, Muhammad Malik and Muhammad Siddik were convicted under section 302 read with sections 34 and 392, P. P. C. for the murder and robbery of deceased Fateh Muhammad and each sentenced under the former section to death and under the latter section to 3 years' R. I. Appellants Sikoo alias Muhammad Siddik (hereinafter referred to as Sikoo) and Karim Bux were convicted under section 411, P. P. C. and each sentenced to 2 years' R. I. All the appellants except appellant Muhammad Malik and Muhammad Siddik have appealed separately, while appellants Muhammad Malik and Muhammad Siddik have preferred a joint appeal. The case of appellants Sultan, Muhammad Malik and Muhammad Siddik is also before us by way of confirmation of death sentences imposed upon them. This judgment will dispose of all the said appeals and the reference under section 374, Cr. P. C. for confirmation of the death sentences.
2. The facts of the prosecution case briefly are these. Deceased Fateh Muhammad and his brother Noor Muhammad (P. W. 4) belonged to Punjab. The deceased used to purchase cloth in the Punjab and alongwith his brother come to Sind side in village Deh 309 in Tharparkar district in order to sell it at his shop in this village with the help of his brother and he used to himself also sell cloth by going on rounds in the nearby villages. He had two donkeys on which he carried the cloth and had employed appellant Sultan as his servant to assist him in taking the cloth to villages for sale. On each round deceased Fateh Muhammad and appellant Sultan used to be away from their village for about 10 days.
3. Deceased Fateh Muhammad had started the last round as usual before his murder for selling cloth about 10 days prior to 3rd June 1968. His brother P. W. Noor Muhammad had put the cloth in five bundles four out of which were loaded on the two donkeys and the fifth was carried by appellant Sultan. The deceased who was illiterate like his brother P. W. Noor Muhammad had got a list of this cloth prepared by some one. He had left the list at his shop with his brother P. W. Noor Muhammad.
4. During his round he visited and camped at village Duberji, situated about 12 miles from the village Deh 309. Appellant Muhammad Malik was a resident of that village and wanted some cloth on credit from the deceased but the deceased insisted on cash payment as he had to leave for Punjab and he refused to sell any cloth to him. This annoyed appellant Muhammad Malik who became angry and thought of taking revenge from deceased Fateh Muhammad. He and the appellant Muhammad Siddik took appellant Sultan, the servant of the deceased, in their confidence and conceived of a plan to kill Fateh Muhammad outside the village after his departure and then to take away and share the robbed cloth and cash which the deceased carried on his person. In persuance of this plan appellant Sultan brought deceased Fateh Muhammad with the donkey loads of cloth outside Duberji village after sun set at a distance of one mile from the village on katcha track going to Jamesabad, where appellants Muhammad Malik and Muhammad Siddik were waiting. These appellants had brought appellants Sikoo and Karimbux with themselves for assistance and they were standing on the watch at some short distance. These two persons were not known to appellant Sultan. When appellant Sultan and deceased Fateh Muhammad passed by the appointed place appellants Muhammad Siddik and Muhammad Malik joined them and suddenly one of them caught hold of the deceased and the other squeezed his testicles until he died. The dead body of the deceased was carried and thrown into a pit by the side of the track and it was covered with some earth dug out from there and thorns. Appel lant Sultan was taken by appellant Muhammad Malik, Muhammad Siddik and two others with themselves to Duberji village and he was kept inside the house for the following two days. On the third day he was paid Rs 10 only and other appellants told him that they would pay him his full share of the booty after some months as otherwise people might suspect him on finding him with so much cash. Sultan was rather disappointed and repented for having joined the other culprits in murdering deceased Fateh Muhammad.
5. On 3rd June 1968, appellant Sultan came to village Deh 309 where his home was and he went and told P. W. Noor Muhammad, brother of the deceased, that he had committed a mistake and he should be pardoned. On inquiries by P. W. Noor Muhammad the appellant Sultan told him how they had murdered and robbed his brother deceased Fateh Muhammad. P. W. Noor Muhammad then took Sultan to the complainant Muhammad Ali (P. W. 3) who also resided in the same village and he was zamindar and good man of the village as well as a B. D. Member. Appellant Sultan also gave the facts of incident to complainant Muhammad Ali who then took Sultan to Jamesabad Police Station. There S. H. O. Abdur Rashid (P. W. 8) was sitting, who registered the F. I. R. lodged by complainant Muhammad Ali and it is Exh. 11 on record. The S. H. O. arrested the appellant Sultan who, after his arrest stated to the S. H. O. that he would point out the place where the dead body of deceased Fateh Muhammad had been thrown by him. He then led the S. H. O. and the Mashirs Muhammad Siddik (P. W. 1) and Rano to a place situated at a distance of one mile from Duberji village on the katcha road from Jamesabad to Jhuddo* and pointed out the dead body of Fateh Muhammad lying covered with thorns and earth in the pit by the road side. A loin cloth and a pair of Punjabi shoes were still on the body while the shirt, banyan and turban were lying by the side of the dead body. The body was in a highly decomposed state and the skin had peeled off while some portions of the flesh from the face had also been eaten up. The S. H. O. prepared an inquest report of the dead body which has been produced as Exh.
34. He also prepared the Mashirnama of the scene of offence which is Exh. 19 on the record. P. W. Noor Muhammad, brother of the deceased Fateh Muhammad, and his son Iqbal came in the morning at the scene and identified the dead body and the clothes etc. of Fateh Muhammad. Medical Officer, Jamesabad, Dr. Allah Bachayo was called at the scene of offence and he conducted the post mortem examination on the dead body.
The S. H. 0. had got Duberji village surrounded by the police on the night between 3rd and 4th June 1968, so that no villager could leave. On 4th June 1968, he arrested appellants Muhammad Malik and Muhammad Siddik on the pointing out of appellant Sultan. Appellant Muhammad Malik is then said to have led the police and the mashirs to his house and produced one spade from his house and one bundle of cloth kept concealed under the heap of wheat grain in the room of his house. The cloth was secured under Mashirnama Exh.
22. Appellant Muhammad Siddik also stated to the S. H. O. that he had concealed his share of the cloth in his house and he produced the same from a heap of Bhussa lying in the shed near his house. The same was taken into possession under a Mashirnama Exh. 21 which was prepared. On the 4th of June 1968, Sub-Inspector Siddik Shoro of Digri Police Station was deputed by the S. P. to assist S. H. O. P. W. Abdur Rashid in the investigation and the S. H.
O. took appellant Sultan for getting his confession recorded by Mukhtiarkar and First Class Magistrate, Digri. He produced him before that Mukhtiarkar on 5th June 1968 at 1-30 p.m. and he made a judicial confession after which he was remanded to judicial custody. His judicial confession is Exh. 9 on record. On 5th June 1968, the S. H. O. P. W. Abdur Rashid asked appellants Sikoo and Siddik each of whom produced his share of cloth from their respective houses. The police found that on the cover of the cloth bundles the name of "Fateh Muhammad Bhatti Rajput Cloth Merchant" was inscribed. On the same day appellants Muhammad Siddik and Muhammad Malik were produced before the Mukhtiarkar and First Class Magistrate, Samaro, before whom they made judicial confessions. These confessions are Exhs. 6 and 7 on record respectively. The two donkeys of the deceased that had been left to stray were captured and produced at the police station. P. W., Noor Muhammad identified these donkeys. He also identified the entire cloth recovered from each of the appellants except appellant Sultan. The S. H. O. challaned the appellants on 19th of June 1968, whereafter they were committed and they took their trial with the result already mentioned above.
6. All the appellants when examined under section 342, Cr. P. C. professed innocence and pleaded not guilty.
7. Appellant Sultan in his statement has stated as follows :-- "I was servant of Fateh Muhammad. I used to carry his bundles of cloth on rounds with him. On the day of the incident of murder I was with Fateh Muhammad and we had two donkeys loaded with cloth. We were at the distance of 2 or 3 miles from Duberji when 7 or 8 sepoys of the Army came in a jeep. They were armed with rifles and wooden batons. They all attacked Fateh Muhammad with wooden batons and gave him several blows as a result of which he became helpless. They gaged me with the piece of cloth and threw me in the pit. They then took the cloth and cash of Fateh Muhammad and they also took the body of Fateh Muhammad in that condition. I cannot say if he was alive or dead at that time, i then went unconscious. At about 1 a.m.
1 woke up and found one person untying me. I then went to village of Ch. Muhammad Ali and informed Noor Muhammad brother of Fateh Muhammad that he had been robbed and abducted by sepoys. Noor Muhammad took me to Ch. Muhammad Ali. I related the whole incident to Ch. Muhammad Ali. Next morning Ch. Muhammad Ali took me to Digri Police Station. Muhammad Ali dictated the statement before the Sub-Inspector and I signed it. I did not take part in causing the death of Fateh Muhammad nor did I assist in the robbery.
7. He also denied having pointed out the dead body of the deceased. Regarding his judicial confession he stated that he had been taken before the Mukhtiarkar to whom complainant Muhammad Ali dictated his statement and he only signed it. He alleged that the confession was not correct and he did not know appellants Muhammad Siddik and Muhammad Malik.
8. Appellant Muhammad Malik denied in his statement to have produced any cloth before the police. Regarding his judicial confession he stated that he did not make any confession before the Mukhtiarkar but his signature was taken after he had been beaten by the police and his father and wife were called at the police station.
9. Appellant Muhammad Siddik also denied having produced the cloth before the police and did not claim it. According to him he was implicated in the case due to dispute that he had with the complainant over water. Regarding his judicial con fession he stated that he has not made any confession before the Mukhtiarkar Samaro but it was dictated by the Sub-Inspector and his signature was taken while he was in the state of uncon sciousness due to beating by the police and because police had brought his wife and father.
10. Appellant Sikoo denied having produced any cloth before the police and did not claim it to be his.
11. Appellant Karimbux also denied to have produced any cloth before the police and did not claim it to be his.
12. The appellants have examined one witness in defence, who is Jamilur Relnnan, a clerk of the Sessions Court, Mirpurkhas.
13. The iirst questiou would be whether the deceased Fateh Muhammad has died or not. On this question no doubt we have the judicial confessions of three appellants named above, but as will be found discussed hereafter these judicial confessions are involuntary and unreliable for the reasons stated at the relevant place, but there is the evidence of the doctor who conducted the post-mortem examination on the dead body of the deceased whom he found dead. Dr. Allah Bachayo, whose evidence in the committal Court was brought on record at the trial as Exh. 36 has stated that the body of the deceased was in a highly decom posed and mutilated condition and upper one-half of the body was in a highly mutilated condition. Skull was separate from the rest of the body. The skin and hair were present on the upper side of the body. Tongue, brain ears and several parts of the body were decomposed. The internal organs in the abdomen of the dead body had been eaten away by wild animals. The doctor, therefore, stated on this condition of the dead body that he was unable to give any opinion regarding the cause of the death of the deceased due to advance decomposition.
However, in his. cross-examination he stated that the dead body could be identified through its legs. P. W. Noor Muhammad, who is the brother of the deceased has stated that he had identified the dead body of the deceased from its face, teeth and clothes. There is no reason not to rely on the evidence of P. W. Noor Muhammad. Wc, therefore, find that the deceased was killed and he was found dead by the witnesses as already mentioned above.
14. We will now take up the case of each appellant separate ly and discuss it. But before we proceed to do so, we would like to mention that in this case there is no ocular evidence but the case hinges on the three judicial confessions of the appellants, Sultan, Muhammad Malik and Muhammad Siddik and the recoveries of the cloth said to be belonging to the deceased from the appellants except appellant Sultan.
15. As against appellant Sultan there is his own judicial confession and the two judicial confessions of appellant Muhammad Malik and Muhammad Siddik, as well as his alleged extra-judicial confession to the complainant Muhammad Ali and P. W. Noor Muhammad and also that he pointed out the dead body of the deceased. So far the confession of appellant Sultan is concerned it clearly appears to be involuntary as he was arrested on 3rd of June 1968, and on 5th June 196v, he is said to have made the judicial confession before the Mukhtiarkar and F. C. M. Digri and Jamesabad where he was arrested and particularly when he was taken by S. H. O. Muhammad Siddik Shoro to the Mukhtiarkar and F. C. M. Digri after S. H. O. Shoro was special ly deputed by the Superintendent of Police for this purpose. It is not known why S. H. O. Shoro was specially deputed to get the judicial confession of appellant Sultan only recorded. This circumstance creates a grave doubt regarding the voluntariness of the confession of appellant Sultan and he must get the benelit of it. As regards the other two confessions it will lirst be found that they are also got recorded by the Mukhtiarkar and F. C. M. Samaro and not Jamesabad, where appellant Muhammad Malik and Muhammad Siddik were arrested particularly when the defence witness Jamilur Rehrnan, a clerk of the committal Court had stated while referring to the record of the District Court that from 1st June to 8th June 196S, the Civil Judge and First Class Magistrate Jamesabad was on duty. No reason has been shown why these two appellants were produced before the Mukhtiarkar andF. C. M. Samaro and not before the Civil Judge and F. C. M. Jamesabad.
The voluntariness of these two confessions also, therefore, appears to be rather doubtful.
16. The three confessions also appeared to be conflicting and contradictory. The confession of appellant Sultan is as follows :-- "I am servant of Seth Fateh Muhammad at a monthly pay of Rs.
30. I used to go with him for selling cloth on donkeys. Again says that when we reached at Duberji Siddik and Malik met me and said that we shall murder Fateh Muhammad and take his cloth and they will also give me share. Then in the evening we went to Duberji. Siddik and Malik came behind us and were talking with Fateh Muhammad on the way. Suddenly, on the big way. Siddik put his hands in the neck of Fateh Muhammad and throttled him and Muhammad Malik squeezed the testicles of Fateh Muhammad.
Two other Sindhis were also on the watch duty. One was on one side and other was on other side.
They were on watch duty at a distance of one acre. After killing Fateh Muhammad buried his dead body in the abandoned water course and put mud and tree-bushes over it. Then we took money and cloth. I accom panied them and reached Duberji and they confined me in a room. On the third day I asked for my share. They gave me only ten rupees and further they said that the remaining share will be distributed after two months. If the people will see money with you, you will be caught.
Then I came in village 309 where I felt fear in my mind. Then 1 came to Noor Muhammad brother of Fateh Muhammad and told him that we had murdered Fateh Muhammad. Noor Muhammad took me to Muhammad Ali Zamindar and member. I also spoke truth with him. Muhammad Ali took me to Police Station Jarnesa- bad. I alo spoke truth. Then police was shown dead body by me."
17. The confession of appellant Muhammad Malik is as under :-- "No Sir. This is the fact that about 8--10 days prior to the day of incident, deceased Fateh Muhammad beat his servant Sultan Jat very much. Sultan was well-known to us. He told us (l)
Siddik son of Yousuf (2) Siddik son of Ghulam Muhammad Jat, (3) Karim Bux son of Saleh Kapri, (4)
Muhammad Malik, that we shall take revenge from Fateh Muhammad and also told us that we rob cloth and cash from Fateh Muhammad. Then about 8--9 days back, when Fateh Muhammad reached near abandoned water course in Deh 300 Taluka Jamesabad, we the above-mentioned live persons sur rounded him. Sultan throttled him. I and Siddik son of Yousuf both caught hold of his legs. Siddik son of Ghulam Muhammad caught his arms and Karimbux son of Saleh Kapri squeezed his testicles till he died. Then all of us hurried Fateh Muhammad in the abandoned water course and put earth over it. The deceased had three bundles of cloth and Rs. 700 cash. Wc distributed the same as under :--
1. Karim Bux Kapri ... Some cloth and Rs. 100 cash. ... Half of the cloth and Rs. 300 cash..
My further request is that we had no intention to kill the deceased but by chance he died. We wanted to teach him lesson but suddenly he died. I pray for mercy as my two children will have remembered me.'[10]
18. The confession of appellant Muhammad Siddik is as follows :-- "No Sir, I am speaking truth. I have completed my friend ship. Others have killed. I have not taken any part. I was only seeing from distance."
Q-- Have you been given any inducement, threat or promise by the police or any one else which induces you to make this confession ?
A.--No Sir. This is the fact that some days back from the day of incident Muhammad Malik wanted to purchase cloth from Fateh Muhammad on loan. Faleh Muhammad did not give him cloth on loan and he said that he has to go to Punjab, hence he himself is in need of money. Hence he refused to sell cloth on loan, on which Muhammad Malik became angry. He joined Sultan Jat servant of Fateh Muhammad with him and also said to Karimbux Kapri and Siddik son of Ghulam Muhammad that we shall take revenge from Fateh Muhammad. One day Muhammad Malik took all of us with him and stood at abandoned water course. When Fateh Muhammad came House of Muhammad Malik is opposite to my house. Muhammad Malik told me that he shall give ine share in my house. I have not received anything. Meanwhile police arrested me and could not get my share. When Fateh Muhammad not reached house, his brother asked from Sultan about his brother Fateh Muhammad. Sultan told his brother that Fateh Muhammad was killed and robbed by army soldiers and he also told that he have got rid of them the military. At last police bent him for truth."
19. In these three confessions it will be seen that each one of the confessions gives a different motive for the murder of the deceased. The confession of appellant Sultan says that appellant Muhammad Siddik throttled the deceased while the confession of Muhammad Malik says that Sultan throttled him and still further the confession of Muhammad Siddik says that appellant Muhammad Malik throttled the deceased. Furthermore, even regarding as to who squeezed the testicles of the deceased the three confessions name three different persons. And still further it will be found that the account of the incident given by each of these appellants in their confessions is somewhat varying. When such is the state of the confessions, obviously it will not be prudent to rely upon them. Even the confession of appellant Muhammad Siddik is self-exculpatory and, therefore, no confes sion in the eye of law. For these reasons then the three judicial confessions cannot be relied upon. The alleged extra-judicial confession of appellant Sultan in these circumstances to the complainant and P. W. Noor Muhammad cannot be relied upon. The law is well settled that extra- judicial confessions call for greater caution and care and Courts should be reluctant to act upon such confessions. This has been held in the case of Rahzan and another v. The State (1).
Furthermore, P. W. Noor Muhammad has also not given in verbatim the extra-judicial confession alleged to have been made by appellant Sultan to him. Therefore, also his evidence on this point is of no avail to the prosecution.
20. That leaves only the pointing out of the dead body of the deceased by appellant Sultan. This appellants admits in his statement that he was with the deceased at the time of his murder and some 7 or 8 sepoys of the army came in a jeep being armed with rifles and wooden batons and they all attacked Fateh Muhammad with wooden batons and gave him several blows. They then took away the cloth and cash of the deceased and also took away the body of Fateh Muhammad in that condition. The appellant then lost consciousness. This statement of his may well be true in the absence of any other evidence to connect him with the crime and under these circumstances mere pointing out of the dead body of the deceased by him is of no avail to the prosecution for connecting the appellant Sultan with any offence. Thus, there is no reliable evidence against appellant Sultan to hold him guilty of the offence for which he has been convicted.
21. Against appellant Muhammad Malik and Muhammad Siddiq there are three judicial confessions already referred to above and the production of the cloth alleged to be belonging to the deceased.
So far as the judicial confessions are concerned it has already been discussed above how they are unreliable and the same discussion need not be repeated. As regards the pro duction of the cloth the position in the evidence is that none of 1 theVMashirs in whose presence it is alleged the cloth has been produced by these two appellants is supporting the prosecution. In fact, one Mashir P. W. Muhammad Siddiq has been examined who denies that he witnessed the recoveries of the cloth from these two appellants or the other appellant also. The other mashir has not been examined by the prosecution and has been given up. So that we have only the word of the S. H. O. Abdur Rashid on this point who is alleged to have made these recoveries. Looking to the circumstances of this case we feel rather hesitant to rely upon the evidence of the S. H. O. alone on this point of recoveries of the cloth and would like to have additional evidence for giving us the necessary assurance which is lacking in this case. The recoveries of the cloth from appellant Muhammad Malik and Muhammad Siddik also, therefore, become unreliable. Hence the result is that the evidence against appellants Muhammad Malik and Muhammad Siddik also cannot be implicitly relied upon.
22. Lastly, we have against appellants Sikoo and Knrimbnx only the evidence regarding their alleged production of cloth of the deceased from their possession as they are convicted under section 411, P. P. C. only. The recovery of the cloth from both these appellants can not be relied upon for the same reasons that have been advanced for not believing the recovery of the cloth against appellants Muhammad Malik and Muhammad Siddik as Mashir in their case were the same. These two appellants are also entitled to get the benefit of doubt.
23. The result is that for the reasons given above we do not find any reliable evidence against the appellants as we consider that on the evidence led against them they are entitled to the benefit of doubt. The appellants are, therefore, acquitted of the offence for which they are convicted. They shall be released forthwith unless require to be detained for any other offence. .