MUHAMMAD HALEEM, J.-Appellants Daim and Aloodo were tried for the murder of Nathu, convicted under section 302/34, P. P. C. And each of them sentenced to death by the learned Sessions Judge, Tharparkar at Mirpurkhas, vide judgment dated 30th January 1971. Four other persons, named Jumo, Budho, Gul Hasan and Hasni, were tried along with them but were acquitted by the same judgment. They have appealed to impugn their conviction while the learned Sessions Judge has referred the case for the confirmation of their death sentence. This judgment will dispose of the appeal and the reference.
2. According to the prosecution case, Nawab A.I S. H. O. Police Station Husri, learnt at 10-30 p.m. On 7th September 1967 from a rumour current in village Husri that some one was murdered in Deh Bakhsho Leghari. Accordingly before leaving at 22-30 hours he recorded a note (Exh. 36) in the daily diary to the same effect. He, however, could not reach Makhan Mori before 7 a.m. The next morning as, according to him, the weather was stormy and it had heavily rained that night. At Makhan Mori he received information that Nathu had been murdered at a spot, two furlongs from there. He then proceeded to that spot and recorded the statement of Safdarali, brother of the deceased at 7-30 a.m. He was a Hawaldar in the Army and had come on leave from Bahawalpur where he was posted. He disclosed that he and his brother owned 40 acres and had also leases of lands which were managed by Nathu and their father, Khairdin. His house and land (Survey No. 248/B) were near Makhan Mori. At about 4 p.m. On 7th September 1967. While he was on the land, Nathu and Tufail Ahmed, his son, went to cut grass. Obviously thereafter he heard cries 'Mara, Mara' of Nathu and Tufail and at the same moment Tufail emerged from the Bajra cultivation (Survey No. 283/A) raising that cry, whereupon Safdar A.I, Noor Mohammad and Haneef, who were also cutting grass in the nearby cultivation, rushed to that spot and there they saw the appellants, Budho, Hasni, Jumo and Gul Hassan, all armed with hatchets, out of whom the appellants, Budho and Hasni were giving hatchet blows to Nathu while Jumo and Gul Hassan were instigating them to kill him. They threatened these persons not to come near them otherwise they would also be killed.
After the culprits left they went near the deceased who had by then expired. Safdar A.I sent Hanif to inform his brother, Fazal Muhammad, who was a clerk in the office of the 15r. S. P., Crime Branch at Haiderabad. Fazal Muhammad arrived at midnight. In the morning, some one was sent to Tando Fazal outpost, which is 4 miles away. It was further disclosed that out of the six culprits, the, two appellants had surrendered along with their hatchets before Haji Jan Khan, Chairman, Union Council, Tando Fazal and had confessed to him and that they were then in his custody. The reason for the murder was said to be a dispute over land. It was alleged that Hasni and Budho had purchased survey No. 283/13 which was adjacent to their house and had been taken on lease by the deceased from its owner, Abdul Karim, about 6 years back. They had attempted to take forcible possession of it but could not succeed on account of a suit having been filed; nevertheless they threatened Nathu that they would kill him. Accordingly proceedings were instituted for keeping peace against Budho, his son Muhammad Hasan, Mooso, Ramzan and Muhammad A.I under section 107, Cr. P. C. Which were then pending in the Court of the S. D. M. Hala Lso It is also the prosecution case that immediately after the incident Tufail was sent to lodge the report at Police Station Husri which was 9 miles away. Tufail is said to have gone on foot in that stormy weather and reached the police station at 9 or 10 p.m. His version is that it was dark and the electricity had failed. He found one person in plain clothes sitting at the police station but was unable to find "any officer in uniform". He informed that man that he had come from Makhan Mori to lodge a report in connection with the murder of his uncle, Nathu, by the appellants, Hasni, Budho, Jumo and Gul Hasan. The man did not record his report but asked him to wait as there was no light and the roof was also leaking. He felt cold at the police station and his clothes had -become wet; he, therefore, did not wait there but went to Husri town to visit a friend, with whom he stayed and again visited the police station at 4 or 5 in the morning, where he was informed that after he had left the S. H. O.
Had come and had left for the wardat. He then returned and reached the wardat at 7 a.m. Sifter the arrival of the S. H. O. From the wardat some cut Bajre grass, one scythe and blood stained earth were secured vide mashirnama, Exh. 13 in the presence of mashis Noor Muhammad.
3. At 5 p.m. On 7th September 1967, one Bijar Khan, .Who has not been-examined at the trial, an acquitted accused, Jumo, produced the appellants before Haji Jam Khan. They informed him that the appellants had committed the murder of Nathu and that they should be handed over to the police. They also produced the two hatchets said to belong to the appellants. Haji Jam Khan sent his Kamdar, Muhammad Khan, to Police Outpost Tando Fazal but he returned saying that no constable was available there. Haji Khan kept the appellants for the night and asked Bijar Khan and Jumo to stay alongwith the culprits. On being asked, the appellants confessed to him that they had murdered Nathu. On the following morning he took the appellants and their hatchets with him to the wardat and produced them before Nawab A.I S. H. O. The appellants were arrested and their hatchets secured vide mashirnama Exh. 15, in the presence of mashir, Noor Muhammad. This was at 7-30 a.m. The blood-stained shalwar of appellant Daim was also secured vide mashirnama, Exh.
14, in the presence of the same mashir. These articles and the blood--stained earth were sent for chemical analysis and ail of them were reported to be stained with human blood. Each of the two appellants volunteered to confess; accordingly they were produced before Mr. Muhammad Bux Baloch, Special Magistrate Hyderabad on 9th September 1967, who recorded their confessions, Since Mr. Baloch died he could not be examined even at the stage of committal proceedings.
4. Dr. Noorul Hassan performed the autopsy on, the dead body and found the following injuries:-
(1) A transverse incised wound 6 -- ' x 2 -- ' cutting the main vessels of the neck above the thyroid cartilage on the front.
(2) An incised wound 2 -- 'x 1 -- ' deep to the cervical vertebrae on the left side of the neck, cutting the vessels of the neck.
(3) An incised wound 7 -- ' x 2' cutting the bone on the left front parieto---occipital region. The brain matter was coming out.
(4) An oblique incised wound 4 -- x 1 --' x deep to the left cervical on the left supra-scapular region.
(5) An incised wound 2' x -- x -- in the left scapula below injury No. 4," which, in his opinion, were caused by a sharp cutting weapon. Injuries 1, 2 and 3 were stated by him to be individually and collectively sufficient to cause death in the ordinary course of nature.
5. The appellants denied the prosecution case. Both of them pleaded that neither were they produced before nor had they confessed to Haji Jam Khan. They also denied the production of the hatchets. Daim resiled from his judicial confession and stated that neither did he confess nor does the statement bear his signature. He alleged dispute over land as the reason for his false implication. Aloodo also stated that he was neither produced before Haji Jam Khan nor did he confess to him. He denied the production of hatchet and pleaded that he bad not confessed before a Magistrate but that his thumb-mark was taken by the S. H. O. He alleged enmity with Haji Jam Khan on the promise that being a Builder he had got him prosecuted and in that connection Jam Khan had to pay a fine of Rs. 7,000.
6. The prosecution examined Safdar A.I, Tufail, Muhammad Hanif and Noor Mohammad as eye- witnesses. Safdar A.I is the brother of the deceased while Tufail is his son. There is no relationship of Muhammad Hanif with the complainant party. Noor Mohammad is a hart of Mohammad Hanif, but is at the same time related to the complainant party and resided with the deceased. The evidence of these witnesses is on the same footing, while Safdar A.I has given the reason that he had come on leave after along interval and it was therefore that he had gone to see the cultivation. Tufail has said that he had gone to assist the deceased for cutting Bajri grass and that while he was with him, the appellants and the acquitted accused, Budho, and out of them, the appellants, Hasni. And Budho inflicted hatchet injuries on the deceased while Jumo and Gul Hasan instigated them to kill him. It was on his cries and that of the deceased that Safdar A.I, Mohammed Hanif and Noor Mohammad were attracted to the spot. He has, however, omitted to mention in his 161 statement, which was duly proved, as to the order in which the appellants and the other acquitted accused gave hatchet blows to the deceased. Muhammad Hanif has stated that he and his hari, Noor Mohammed, were cutting grass in the cotton field, 60 or 70 paces away, when they heard the cries and went to the spot. Noor Mohammad has also said so. All these witnesses claim to have seen the appellants and the acquitted accused and corroborate the part attributed to them by Tufail. The learned counsel for the appellants that vehemently urged that none of them had witnessed the occurrence and that they were attracted subsequently on the discovery of the dead body. We have examined their testimony in this light. Tufail was a student and had come from Hyderabad to spend his vacation. While he asserts that he had gone to assist the deceased in cutting the grass, only one scythe was found at the wardat. It is not understandable as to why only one scythe was taken if the purpose for which he had gone was to cut grass. Again, he stated that he saw the appellants armed with hatchets coming towards them and that the whole incident finished within 3 or 4 minutes. How is it that no attempt' was made by the deceased to run away on seeing them and if the incident had really finished in such a short time how could the other witnesses be in a position to arrive there and witness the appellants and the acquitted accused, Hasni and Budho, causing hatchet blows. The medical evidence shows that the deceased suffered two injuries on the left scapular region. They could well have been given while in sitting posture unnoticed. In this context the presence of Tufail along with the deceased is a doubtful feature. Safdar A.I has merely said that he had gone to visit the cultivation. It does not appeal to us as to why on that fateful evening he would be so anxious to visit it, if the only reason is that he wanted to see it as he had come after a long time to spend his leave at his house. At least four days had elapsed between the date of his arrival and the date of the incident. It would have been natural for him to visit the cultivation either on the next day or the day thereafter. Why that day was chosen, is a mere coincidence if at all his testimony is to be accepted. While giving his statement (F. I. R.) to the S. H.
O. He stated that be had sent some one to Outpost Tando Fazal in the morning without disclosing its outcome. In his evidence however, he stated that he sent Tufail after half an hour to polite station Husri, and as the weather became stormy and it rained heavily, he and the others stayed at the wardat. He has also tied to explain that some one informed him that no constable was available at Outpost Tando Fazal and it was therefore that he sent Tufail o police station Husri.
Safdar A.I has not given out the name of the person who was sent or who gave that information.
What appears is that 'e wanted to be secretive about it for reasons best known to him and respective of the fact whether the outpost was manned or not, we are inclined to view in the context of the inconsistent stand that no attempt was made to lodge the report at the outpost.
Tufail has given out that his report was not recorded as the electricity bad failed and there was no light yet his arrival at the police station is not established. Nawab A.I S. H. O. Has denied his arrival at the wardat at about the time he was there. He has recorded a note in the station diary and had also phoned for a taxi jeep from Hyderabad for proceeding to the wardat. He also stated that in his absence Jafar A S. I. Was in charge of the police station. Jafar nor the friend with whom Tufail is said to have stayed during the night. In the context of the statement of Nawab A.I it is not possible to accept the reason given by Tufail that there was no light as the electricity had failed. It is also not possible to accept that there was no one on duty except a man in plain clothes as, according to the S. H. O. Jaffar A. S. I. Was in charge of the station after he had left. Even otherwise file excuse of failure of electricity does not appeal to us as in that eventuality a lantern would have been a substitute for it and the report could have been recorded.
7. It may also be recalled here that Fazal Muhammad when cross-examined asserted that he cid state in his 161 statement that Safdar A.I had told him that he had sent Tufail to Police Station Husri, which he has not stated and the omission has been proved on record. Fazal Muhammad was specially called from Hyderabad and if Safdar A.I had sent Tufail it would be natural for him to disclose about sending him for lodging the report. Such an omission militates against Tufail's visit to police station, particularly in the context of the same omission from the F. I. R. Noor Muhammad, another eye-witness, has also omitted to disclose in his committal Court deposition about Tufail having been sent for lodging the report, which omission has been brought to record. Even Tufail has not said about his going to the police station in his 161 statement. There is, therefore, room for doubt as to whether he was at all sent. This deficiency was attempted to be covered up by an application sent to the S. P., Hyderabad Wherein in pats 1t was stated that Tufail was deputed to lodge the report at Police Station Husri who informed him that the A. S. I. Husri was present but instead of recording the "cognizable report" an entry (Exh. 21) was made in the station diary on 7th September 1967. This is clearly an afterthought, It is also intriguing at the same time to believe that the S. H. O. Heard the rumour current in Husri village about the death of some one in Makhan Mori, which is 9 miles away. How did that information travel to "Husri village" in that turbulent weather so as to reach the ears of the S. H. O. Is again a mystery. According to the F. I. R. Fazal Muhammad had reached the wardat at midnight while Safdar A.I stated in his testimony that he arrived at 3 or 4 a.m. Fazal Muhammad himself states that Muhammad Hanif came to him at 11-30 p.m. And conveyed the information. We are not impressed about the time of his arrival at the wardat. In all probability, Muhammad Hanif must have reached before 10-30 p.m. And informed him of the murder of the deceased. It was thereafter that he must have communicated with the S. H. O. Police Station Husri, otherwise there is no plausible explanation for the S. H. O. To record that note. The absence of the name of the culprits and other significant details art lacking in the note, which clearly suggest the absence of knowledge as to who were the culprits and how the murder was committed. In the eventuality that it was a witnessed crime there was no reason not to mention the name of the assailants and the: witnesses.
8. Whether the S. H. O. Left for the wardat that night is again shrouded with suspicion. Of course, he has given the reason that he was stuck on the whole night after he left for Makhan Mori. For since at rained heavily he could not make for the wardat. This reason on the face of it, is not plausible, for he has not stated as to where he was stuck up on the way while travelling in the jeep when others, according to the prosecution case, could reach the police station and inform Fazal Muhammad in that turbulent weather.
9. Muhammad Hanif and Noor Mohammad also stated that Tufail was sent to lodge the report at Police Station Husri. On this aspect of the case, their evidence is also on the same footing as that of Safdar A.I and Tufail. They have given the same reason, namely of cutting grass in the cotton field near the wardat. There is nothing on record to sustain that cut grass was found in the field though Noor Muhammad stated that "they had cut two loads of grass". Mohammad Hanif has further stated that he held 260 acres of land on lease from Mr. Rasool Bux Leghari, Additional Sessions Judge. He describes himself as a Zamindar. Accordingly it is not expected that he would himself go to cut grass in the context of his own admission in the committal Court with which he was confronted, that he had eight harts and owned eight pairs of bullocks, besides 5 or 6 buffaloes and goats. In that event, one of his harts would do the job of cutting the grass. Besides he has admitted that he had lodged a complaint against Daru and Ramzan, brothers of the acquitted accused Jumo and Gull Hassan for having fired a revolver shot at him a month before the incident and that a case was pending in regard to it. The defence has brought on record the medical evidence to show that no gunshot injury was received by him. Be that as it may, there is an indication of malice.
One more feature is of significance in his evidence, and that is that he failed to mention the presence of Safdar A.I in his committal Court depositions and that omission has also been brought on record. What made him omit the name of Safdar A.I earlier, he has not explained; nevertheless it is inconsistent with the other evidence and hence room for doubt as to the presence of Safdar A.I.
Having held that the S. H. O. Recorded the note at the instance of Fazal Muhammad, to whom he had conveyed the information of the murder of the deceased, it is not possible to accept his claim that he had witnessed the incident in the context of the omission of the name of the culprits and the eye-witnesses therein. Even though he is not related to the complaint-party, yet he cannot be described as a disinterested witness against the above background. The evidence cannot be accepted as that of an eye-witness.
10. The last witness in the series is Noor Muhammad; he is the hari of Mohammad Hanif but his connection with the complainant-party is apparent from the fact that he is related to the deceased and resided with him. It is also not established that he was cutting grass at that time for the reason earlier stated. Though he has tried to disassociate himself with the deceased by saying that he resided with Muhammad Hanif, yet his version in the committal Court as to his relationship and residence was proved on record. It is evident from his evidence that he was cited as a witness in the security proceedings initiated at the instance of the deceased against the acquitted accused Budho and his son Hassan and others. He cannot be described as an imperial witness in the context of the above background. He has also towed the same line as the other witnesses and we, therefore see no reason to accept his evidence.
11. From the above discussion, it is clear that neither the names of the culprits nor the eye-witnesses transpired in the note which, as observed was recorded at the instance of Fazal Muhammad who was in police service; and that too on what was conveyed to him by Muhammad Hanif. In the circumstances, it is more likely that after the deceased had left and failed to return that a search was made and his body was found with hatchet injuries and such information was sent to Fazal Muhammad, Necessarily, therefore, the names of the culprits must have been mentioned in the F. I.
R. Which was recorded later on suspicion, particularly when the appellants had already been produced and this fact was known. Accordingly the contentions of the learned counsel for the appellants has substance.
12. Having held the presence of the prosecution witnesses doubtful, the next piece of evidence which requires consideration is the judicial confessions of the appellants. Each of them has resiled from it. Daim stated that neither he confessed nor signed the document. Aloodo also stated that he had not confessed and that it was the S. H. O. Who took his thumb-mark on it. The Magistrate, who recorded the confession, died even before he could be examined at the enquiry stage. The confessions were brought on record through the evidence of the S. H. O. He has stated that they were produced before the Magistrate and each of them confessed. Apart from the presumption which attaches to the making of the confession there is nothing to disprove this assertion in the context of the stand taken by the appellants. However, it is not possible to act on the confessions for a different reason. Daim while confessing has stated:- "I and Aloodo are guilty. We have murdered. Others are innocent. Police have arrested them . . . . . ."
Again in reply to the question whether he had been given any inducement, threat or promise by the police, he stated:- "We both i.e., myself and Aloodo have committed the murder. The others have been unnecessarily arrested by police. Our three men had been arrested by police and the police is after the fourth.
Those who have been arrested without any fault may be let off. Amongst them, are my maternal uncle Jumo, Budho and Hasni. There is no body else behind in our houses."
However, in the declaration recorded by the Magistrate he stated that Daim expressed that no inducement was given by the police and he opined that the confession was voluntary. From the above answers it is obvious that Daim was anxious to accept blame for the murders with a view to save the other acquitted accused. This was the impelling reason in that context even if he had said that he was not induced by police to confess yet it cannot be said to be voluntary. On the same footing is the confession of Aloodo. What he stated is this:- "Sir, police have arrested our five persons. Police have gone to Nawabshah after the sixth person.
There is no man left to look after our children. I state truly that I and Daim have murdered; the others are innocent: You are Magistrate and got rid of the others from police. We may be hanged."
This confession was not held to be voluntary by the Magistrate in his certifi--cate as, according to him, he had confessed "due to the inducement that his other men who are in police custody will be released." It cannot, therefore treated as incriminating evidence against appellant Aloodo, Daim's confession cannot be taken advantage of on the footing of an admission of guilt not only because there was an impelling reason to save his other relatives but also because it is not true, for ho stated that he caused one hatchet blow to the deceased yet there are, as many as five hatchet injuries on the deceased Aloodo's confession is self-explanatory and is even otherwise of no value as be stated that he prevented Daim from inflicting hatchet blow to the deceased. Considered in the context of the impelling reason to save others it is also not possible to accept the bare words of Haai Jam Khan that both of them had admitted having killed the deceased. The fact that they were produced by acquitted accused Jumo, and Bijar Khan further strengthens the stand that they had laboured under that impelling reason. The conduct of the appellants also cannot be incriminating as it cannot be regarded to be voluntary. The appellants had not themselves produced the hatchets; they were brought by acquitted accused, Jumo, who was subsequently implicated in the crime and one Bijar Khan, who was not examined in the case. It is not known under what circumstances the hatchets were connected with the appellants. Having therefore rejected the extra-judicial confession and the production of the hatchet, no incriminating evidence remains against Aloodo. As for Daim, his blood-stained shalwar was secured it was, therefore, urged that the presence of blood on the clothes of a cultivator is not unusual having regard to his way of life unless the stains are of such dimensions that they cannot be explained on any innocent hypothesis. There is no evidence as to the extent to which it was stained with human blood. The S. H. O. Has stated that he did not remember on what part of the shalwar of Daim he found blood stains while Haji Jam Khan was firm in saying that he did not notice blood-stains on n the clothes of the 'accused'. Noor Muhammad mashir has stated that there were spots of blood on the shalwar of Daim. None of the witnesses have stated about the extent and the dimension of the stains. There is a room for such possibility as is urged but in the context of all other incriminating evidence having been disbelieved, it is not possible to sustain conviction even if this piece of evidence is accepted.
13. There is no doubt that there was a dispute over a portion of land comprised in survey No. 283/13 purchased by Hasni from a 'Moharir' but Hasni has been acquitted. The appellants are connected with Hasni, but this reason alone is trot sufficient to bring home the guilt to the appellants.
14. The trial Court while appraising the ocular testimony has held that it cannot be accepted without independent corroboration and in that view of the matter it found corroboration against the present appellants in that they were produced before Haji Jan Khan with blood-stained hatchets and that further that they had confessed before him. We have not accepted that evidence and have also held that the presence of eye-witnesses is doubtful. Accordingly the prosecution has failed to establish its case beyond doubt against the appellants, and while giving to them the benefit of doubt we accept their appeal and direct that they shall be set at liberty forthwith unless required in some other case. Sentence of death is not confirmed and the reference is rejected.