Z. A. CHANNA, J.-Appellants Nazo, Kauro and Mir Mohammad were tried along with one Achar son of Mohammad by the learned Session Judge, Khairpur under section 302 read with section 34 P. P C. For committing the murder of Photo son of Sanwal and while Achar was acquitted all the appellants were convicted for the said offence, and each of them was sentenced to transportation .--o life. They have appealed go impugn their conviction and sentence.
2. Appellant Kauro is the brother-in-law of appellant Nazo, being married to his sister, while appellant Mir Mohammad is related to the other two appellants. The case of the prosecution is that on 26-6-69 at about sunset tine, the three appellants came to the house of the deceased in village Jarah Koh, where he was putting up with his father Sanwal and his brother Badal and Hadi Bux, and book him away with themselves on the pretext of witnessing the "Giyarwheen Mela" at Gambat, which is about six miles from the above village. As deceased Photo did not return to his house on the following day, his father made search for him and learnt from Shafi Muhammad and Achar Kbatis that on the previous day they had seen the deceased in the company of the three appellants at Khemtia culvert on Hamirji Minor going towards Kamal Dero and on exchange of news tit appellants had informed them that they were going to Gambat for " Giarheen Mela".
Sanwal thereafter contacted the appellants at their village anal enquired from them about the whereabouts of his son, but they denied all knowledge about him. On this Sanwal became suspicious as it was within his knowledge that appellant Nazo suspected the deceased of having illicit relations with his wife. Sanwal, therefore, decided to report the matter to the police, and was on his way to Gambat Police Station, when he learnt that S. H. O. Gambat was encamped at Kamal Dero, which is at a distance of two miles from his village, where on 28-6-69 he lodged his F. I. R.
With S. H. O. Abdul Hafiz Beg. Who recorded the same at 1 p.m. On a white sheet of paper, and sent it to Gambat Police Station for incorporation in the F. I. R. Register.
3. Immediately after recording the F. I. R., S. H. O. Abdul Hafiz Beg, accompanied the. Complainant to Jarah Koh village, where the appellants were also residing, and arrested- appellant Nazo, who led the S. H. O. And mashirs, Syed All Reza Shah and Rahim Dad, to the inspection path of Hamirji Minor, some four miles away from the Jarah Koh village, and pointed out a spot on which there were blood stains as well as marks of struggle. The S. H. O. Secured the blood stained earth and prepared mashirnama Exh.
14. Appellant Nazo then pointed out a spot in the Hamirji Minor, which was flowing and had water about three feet deep One Kadir Mahesar was sent in the water and he brought out a broken laths, one shoe and a hatchet, which were blood-stained. All these articles were seized by the S. H. O., who prepared mashirnama, Exh.
15. Appellant Nazo then pointed out a ditch, which was at a distance of 48 paces from the spot where the blood stains were seen. In the ditch the deceased was found buried, but both his arms were found uncovered and partly eaten by wild animals. The. S. H. O. Had the body dug out and prepared mashirnama, Exh.
16. The body was then sent to Gambat Hospital for post-mortem examination. On the same day, the S. H. O.
Recorded the statements of P. Ws. Hadi Bux, Bacchal and Badal. On the following day the S. H. O.
Examined P. Ws. Achar, Shafi Muhammad, Mst. Subhan (wife of appellant Nato), Talib Kalhoro, Amir Bux and Shah A.I Gopan. On 30-6-69, the S. H. O. Produced appellant Nazo before the Mukhtiar kar and F. C. M., Gambit who recorded his judicial confession.
4. On 3-7-69, A.I Reza Shah produced appellants Kanto and Mir, along with a lath!, before the S. H. O.
At Kamal Dero. Both these appel--lants are said to have confessed their guilt to A.I Reza Shah prior to their production by him before the S H. O. On 4-7-69, appellant Kanto was produced before the FC. M. And Mukhtiar kar at Gambat, who recorded his judicial confession. The blood-stained earth secured from the scene of offence and the hatchet and lathi recovered at the instance of appellant Nazo from Hamirji Minor were sent to the Chemical Examiner who has reported, vide Exh.
26, that the earth and hatchet are stained with human blood but no blood was detected on the lathi.
5. The autopsy on the deceased was performed by Dr. Ahmed Bux, who found the following external injuries on the deceased:-
(1) Incised wound 3' x -- ' x superficial cut on the bone underneath on the left parietal region near the midline.
(2) Incised wound1 -- 'x -- 'x skin deep outer to injury No. 1.
(3) Incised wound 3 -- x 1' x skin deep oblique behind the left eat.
(4) Incised wound 4---x 1` cutting the front 1 -- ` of the left side temporal tone. The wound started from the outer side left eye-brew going to the left eat which was also cut in the middle.
(5) Incised wound 6' x 2' x 2 -- ' on the left side neck below the ear starting from just below the angle of the left mandible going back to neck. Big vessels cut.
(6) Incised wound 13' x 2 -- ' x cutting the 3rd cervical vertebrae in front and on the right side. The wound started from the left side front neck going to the right and back neck up to the middle. All the big blood vessels, trachea, oesophagus and the muscles cut. Spinal cord on the right-side cut.
(7) Incised wmond 3' x -- 'x -- " on the right side neck below injury No. 6.
(8) Incised wound 3' x 1' muscle deep on the outer side upper part right forearm.
(9) Incised wound 4' x 2' right scapula outer part cut on the back right shoulder.
(10) Incised wound 5' x 2' x left scapula bone cut on the back left shoulder inner side.
(11) Incised wound 5"x 2'x muscle deep outer side to injury No. 10.
(12) incised wound 4 -- ' x 1 -- ' x left tibula bone cut on the outer side upper part left leg.
(13) Left arm absent just above the elbow joint. The bone showed the sharp cut. Flesh eaten up by animals.
(14) Right hand, 3rd and 4th fingers absent from the 1st inter phalangeal joint. No cut mark present, Possibly eaten by animals."
6. The Medical Officer opined that all the above injuries, except injury No. 14, which appeared to have been caused by animals after death, were anti-mortem, appeared to have been caused by a sharp-cutting weapon, such as a hatchet, and that injuries Nos. 5 and 6 were individually sufficient in the ordinary course of nature to cause death.
7. The case of the appellant, is one of complete denial. Appellant Nazo further denied that he had pointed out any blood-stained spot on the inspection path of Hamirji minor, or the place where the deceased was found buried or that it was a4 his pointation that a hatchet, lath! And shoe were recovered from the waters of Hamirji Minor. Both Nazo and Kauro admitted having made judicial confession, but claimed that they are neither true nor voluntary. According to appellant Nazo, the confession was extracted from him by insulting his womenfolk and due to inducement by B. D.
Chairman, Rasool Bux, and A.I Reza Shah. He further alleged that he had been implicated at the instance of police and A.I Reza Shah Who is his enemy. According to appellant Kanto, the judicial confession. Was extracted from him due to insult to his ladies emanating from the police. Both he and appellant Mir denied having made an extra judicial confession before A.I Reza Shah. Both alleged that they had been falsely implicated in the case at the instance of police and A.I Raza Shah.
8. The two common pieces of evidence against all the 3 appellants are that they had taken away the deceased from his house and that the deceased was last seen alive in their company on the inspection path of Hamirji Minor, a short distance away from the place where his body was found buried. Against appellant Nazo there is further evidence of his pointing out the place when the deceased is alleged to have been murdered, the spot in Hamirji Minor from whore a blond-stained hatchet, a broken lathi and u shoe, said to ire of the deceased, were recovered, and the place on here the deceased was found buried. Furthermore, there is against him the evidence of his own judicial confession and the judicial confession of appellant Kauro who has also implicated him in that confession. Against appellant Kauro there is further evidence of his having made do extra judicial confession before A.I Reza Shah, his own judicial confession and the judicial confession of appellant Nazo, who h" also implicated him. Against appellant Mir, there is further evidence of leis having made an extra---judicial confession before A.I Reza Shah. There is also evidence to the effect that appellants Kauro and Mir had pointed out the spot on Hamirji Minor where the deceased was killed and the ditch where he was buried but, since the case of the prosecution itself is that these spots bad already been pointed out by appellant Nazo and recovery effected, this piece of evidence is without any value.
9. P. Ws. Hadi Bux and Badal, the brothers of the deceased, have deposed that the appellants had come to their house, where the deceased was also residing, and had taken him with themselves, on the plea that they were going to 'Giyarwheen Mela` at Gambat. We find ourselves unable to place any reliance on this testimony. P. W. Hadi Bux has admitted that the persons who had taken away the deceased had called him from outside and that it was dark at that time. According to them they had accompanied the deceased outside their house but they have given no explanation for this action. They have admitted that on previous occasions when the deceased was called from outside they bad not accompanied the deceased. Under the circumstances, even if we were to accept the position that P. Ws. Hadi Bus and Badal were in the house when the deceased was called out and take away, they could not have been in a position to see and identify the persons whir had taken him away, it being dark at that time. This inference of outs gains support from the admission of complainant Sanwal that when appellant Nazo denied the fact of taking away the deceased he kept search--ing for the deceased until he met Achar and Shafi Muhammad. If Badal rind Hadi Bux had in fact seen the appellants taking away the deceased, Sanwal could not have remained quiet on the reply of appellant Nazo but would have certainly confronted him with his sons.
10. We also find ourselves unable to place any reliance on the extra judicial confession said to have been made by appellants Kauro and Mir to P. W. A.I Reza Shah. This confession is said to have been made by then) on the very day that they were produced by the witness before S. H. O. Abdul Hafiz Beg. According to the S. H. O. These two accused were pro--duced before him by the witness on 3- 7-69, that is some -six days after the murder of the deceased. It has not been explained by the witness why the appellants made confession to him when he was neither their zamindar nor even residing in -the village in which they were putting up. The con--fessions are said to have been made in the presence of Kehar and Bharo who, however, were not examined. We are entitled to presume that these persons were not examined because the were not willing to support the prosecution case Both Kauro and Mir have denied having made a con--fession before A.I Raza Shah and on the contrary alleged that they have bean involved at his instance.
11. We are also not inclined to place any reliance on the judicial confession of appellants Nazo and Kauro, as they are not only inconsistent with the medical evidence but also with each other. In his confession, appellant Nazo fins stated that he had given a lathi blow to the deceased on his leg as a result of which the deceased fell down and thereafter Mir inflicted two hatchet injuries on the deceased. No mention is made in the confession, regarding appellant Kauro, who is said to have been armed with a lath, having caused any injury to the deceased. Appellant Kauro, on the other hand, in his confession has stated that appellant Nazo had given a hatchet blow to the deceased, that he had given a lathi blow to the deceased, as a result of which the lathi was broken, and that appellant Mir had also given a lathi blow to the deceased. The medical evidence, however, shows that there were as many as 13 anti-mortem injuries on the deceased all of which were caused with a sharp-cutting weapon and none with a lathi. It is also con--tended by Mr. Hayat Junejo, learned counsel for the appellants, that the confession of appellant Nazo is further open to suspicion as he was not produced for remand before any Magistrate within twenty-four hours of his arrest.
Appellant Nazo was admittedly arrested by S. H. O. Abdul Hafiz Beg on 28-6-69 at or before 3 p.m.
He should have been produced for remand before a Magistrate on 29th June 1969, but instead was produced before a Magistrate on 30th June 1969, at 10 a.m. The S. H. O. Has tried to explain away his failure to produce appellant Nazo for remand within 24 hours of the latter's arrest by the fact that 29th June 1969, was a Sunday and the Mukhtiar kar and F. C. M. Was not available. He however, stands contradicted on this point by Mr. Muhammad Ashraf, who then was Mukhtiarkarand F. C. M..
Gambat, who has admitted that on Sundays he used to remain and was available at the Headquarters: The S. H. O. Has also admitted that there is a Head Munshi and III Class Magistrate at Gambat, but, he had not produced Nazo before that Magistrate. The learned counsel for the appellants has invited our attention to a judgment, dated 26 November 1956, of a Division Bench of the Karachi Seat of the West Pakistan High Court, in Confirmation Case No. 54/56, where it was observed as follows:- "The appellants were in the custody of the police for two nights. Section 61, Cr. P. C. States that no police officer shall detain in custody a person arrested without warrant for a longer period than trader all circumstances of the case is reasonable and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the---time necessary for the journey from the place of arrest to the Magistrate's Court. Were is no explanation on record why when the police reached Badin at 3-30 p.m. On the 11th, a remand was not taken from a Magistrate at Badin, except the statement of the Sub-Inspector that he could not send the appellants for their confessions that arty as it was a Sunday. The Sub-Inspector may have confused the question of remand with the question of obtaining a confession, since he took a remand of the appellants on the 12th. When he sent them for their confessions, but the fact remainsth that the appellants were kept in custody without a special order of a Magistrate for alonger period than was reasonable, with the result that they were under unauthorised police custody for an extra night. We look with suspicion upon a retracted confession, where the accused had been kept in police custody for an unduly long period."
The safeguards provided in section 61, Cr. P. C. Have been considered so important that they have beau enshrined in the Constitution anti included in the Fundamental Rights.
12. The case against appellant Nazo thus rests on the testimony of P. W. Achar and the pointing out by this appellant of the scene of offence, the place where the deceased was buried and the spot from where the bloody stained hatchet, the shoe and lathi were fished out. The testimony of P. W.
Achar is to the effect that on the night of the incident he along with his brother Shall Muhammad was sitting on the bridge over Hamirji Minor when at about "sohmani" time the appellants, who were accompanied by deceased Photo, passed along the bridge and on the witnesses exchanged greetings and views with the appellants they told him that they were going to 'Giarwbeen Mela'.
This was the last time that the deceased was seen .Alive. P. Ws Achar is a disinterested and independent witness, having no relationship whatsoever with the. Complainant's party. He has admitted that he and his brother Shafi Muhammad were prosecuted for dacoity but were acquitted. The mere fact that he was prosecuted for dacoity is no .t reason for discarding or doubting his testimony. It was contended by the learned counsel for the appellants that it would be most unusual for the witness and his brother to be sitting at night time on a lonely bridge. We, however, do not see anything unusual in the two brothers sitting on the bridge of a canal at night in the month of June as it is not uncommon for villagers on hot nights to pass part of the night on the bank or bridge of a canal, where it is much cooler. The witness had informed the complainant, when the latter was searching for his son, about what he had seen, and it was mainly because of that information that the complainant had decided to lodge a report against appellants with the police. Assurance as to the truth .Of his testimony, in respect of appellant Nazo, is provided by the recoveries etc. At the instance of this Appellant. This appellant was arrested by S. H. O. Mina Abdul Hafiz Beg within two hours of this lodging of the F. I. R. And he not only pointed out the spot on Hamirji Manor, some four miles away from his village, where there were blood stains on the inspection path, but he also pointed out the ditch, which was at a distance of 144 feet from the blood stains, where-the deceased was found buried and further pointed out the spot inside Hamirji Minor from where a blood-stained hatchet, a broken lathi and a shoe were recovered. On this point there is evidence of S. H. O. Abdul Hafiz Beg and mashirs A.I Raza Shah and Rahim Dad. Mashir A.I Raza Shah has admitted that his uncle Bacchal Shale had given a statement against Siddiq, the father of appellant Nazo, in section 110, Cr. P. C. Proceedings. This fact however, is no ground for considering the witnesses as either interested or hostile. The witness further admitted that his lands and the lands of appellant Nazo and the acquitted ac--cused Achar take water from the same watercourse but denied that there was any dispute between him and these two accused over rotation of water. The second mashir, Rahim Dad, a B. D. Member, was also examined, who fully supported the prosecution case. No enmity with or hostility by this witness has been alleged by appellant Nazo or any other appellant. Both he and mashir A.I Raza Shah appear to us to be disinterested witnesses, who had too motive or reason for giving false testimony against appellant Nazo.
13. It was strongly urged by the learned counsel for the appellants that the complainant as well as the police must be aware of the burial place of the deceased, even prior to the arrest of appellant Nazo, since admittedly two areas of the deceased were protruding above the ground and the burial place was not only close to the inspection path of Hamirji Minor but there is also a kutcha road along with it on which there must have been some traffic. This contention is sought to be supported from the admission of mashir Rahim Dad in the committal Court that he had seen dogs eating the hotly of the deceased and had informed Head Constable Muhammad Hassan about it before the arrest of appellant Nazo. It was contended that since Head Constable Muhammad Hassan was admittedly with S. H. O. Abdul Hafiz Beg in the investigation of this case, the S. H. O. Must have been aware of the location of the dead body before Nazo pointed it out, and therefore, the pointing out of the dead body etc. By Nazo is of no value. We are inclined to view that the above admission by mashir Rahim Dad was an obliging statement in favour of appellant Nazo and has no valid basis. This conclusion finds support from the statement of the witness that he was taken by the police from the village of the appellants. If the witness had actually seen dogs eating the body of the deceased he would either have gone to Bharo Police Outpost, which was then in charge of Head Constable Muhammad Hassan, or to Gambat Police Station or at least to Kamal Daro, where the S. H. O. Was encamped. The dead body was buried in a ditch which according to the testimony of Tapedar Muhammad A.I was three feet deep. In between this ditch and the inspection path of Hamirji Minor anti the kutcha road running by its side, there was a watercourse. It is, there--fore, quite unlikely under the circumstances that a person-passing along the inspection path or even the kutcha road would have discovered the buried dead body, unless some one had pointed it out to him. Furthermore, the recovery of blood-stained hatchet, the broken lathi and the shoe from the waters of Hamirji Minor would not have been possible unless some person had actually shown that spot to the police. As already indicated, the S. H. O. And the mashirs have deposed that this spot as well as the burial place of the deceased were pointed out by appellant Nazo. We have no reason to doubt their testimony nor are we impressed by the contention that the burial place of the dead body was known to the police prior to the arrest of appellant Nazo.
14. We have given very careful consideration to this case and arc of the opinion that the evidence of P. W. Achar about having seen the deceased with the appellants on the night of the incident together with the evidence of recoveries discussed above, clearly establishes the fact that appellant Nazo was one of the persons who was responsible for causing the fatal injuries to the deceased. The injuries to the deceased were caused both on his right as well as on left side.
Looking to this fact and the number of injuries on the deceased a clear inference emerges that these injuries were inflicted on the deceased by more than one person and that they intended to kill the deceased. We, therefore, are of the opinion that the case against appellant Nazo has been fully established, specially as he has a motive for doing away with the deceased, whom he suspected of having Illicit relations with his wife. So far as the other two appellants are concerned, there is only the evidence of P. W. Achar that he bad seen the deceased in their company and the company of appellant Nazo on the night of the incident. This evidence by itself is not conclusive to establish the guilt of appellants Kauro and Mir.
15. For the reasons stated above we would maintain the conviction and sentence of appellant Nazo and dismiss his appeal and would set aside the conviction and the sentence of appellants Kauro and Mir and allow their appeal. They should be set at liberty forthwith unless required in connection with same other case.