MUHAMMAD HALEEM, J.-Appellants Iqbal and Ghulam Abbas were tried for the murder of Rahmatullah, convicted under section 302/34, P. P. C. And sentenced to transportation for life by the learned Sessions Judge, Khairpur, vide judgment dated 9th October 1971. They have appealed to impugn their conviction and sentence.
2. According to the prosecution case, the incident occurred on the land of Pir Gul Shah in village Serri, Taluka Mirwah, District Khairpur, before sunset on 28th July 1970. The deceased hailed from District Sialkot. About 9 years back he and his father, Ramzan, had come from there and settled in District Khairpur. At first they resided with Abdul Karim Punjabi near Maror in Taluka Mirwah and cultivated some of his lands on `batai'. Two and a half years before the present incident they settled on the land of Pir Gul Shah. This land was taken on lease by Allahyar Awan and his sister Mst. Maryam, and Ramzan had taken it on 'batai' from them. They had cultivated sugarcane in partnership with Inayat Bhatti. Ramzan also took 5-- acres of land from Mst. Maryam on 'batai' in which he had raised wheat crop. At 5-30 p.m., both Ramzan and the deceased went to cut grass on the land and on reaching there the deceased told Ramzan that he should go to Umed A.I Sanjrani and ask him to purchase a bullock for them. Ramzan left to contact Umed A.I Sanjrani while the deceased engaged himself in cutting grass. Ramzan returned to his house after meeting limed A.I Sanjrani and by then the sun had set. The deceased had not returned whereupon he left in search for him but he did not find him. He contacted Allahyar Awan who told him that he had also seen the deceased cutting grass. Another attempt was made but due to darkness the deceased could not be found. In the morning Ramzan went to his sugarcane cultivation where he found the deceased lying dead with his neck cut and a little cut grass lying there. He informed Allahyar Awan and others who had also come alongwith him. Ramzan then hastened to Police Station Mirwah, 4 miles away, where he lodged the report at 8-15 a.m., on 29th July 1970. It was recorded by Sadiq A.I Shah, Head Constable, who repaired to the wardat where he saw a blood- stained sickle, some cut grass and the deceased lying dead. He secured the blood-stained earth and the sickle vide mashirnama Exh. 18.
3. Gulsher Ahmed S. H. O. Arrived there and took over the investiga--petition. He recorded the statements of Mohabat, Mst. Alam Khatoon, Nuro and others. He sent the dead body for post- mortem examination and again on 31st July, 1970, examined Mst. Waziran and Muhammad Suleman, who had produced the appellants at the police station. Appellant 1qba1 volunteered to produce the sickle and led the S. H. O. And the mashir, Muhammad Suleman, to his house and took out a sickle from the thatched roof which was secured ride Mashirnama Exh.
23. Both the appellants volunteered to confess. They were accordingly sent on 1st August 1970 to Mr. Muhammad A.I Mukhtiar kar and First Class Magistrate, Mirwah, who recorded their confessions.
One sickle and blood-stained earth were sent for chemical analysis and both of them were reported to be stained with human blood.
4. Dr. Ijaz A.I performed autopsy on the dead body of the deceased. He noticed the following injuries: ---(1) An incised wound 3--" x 1/3" on the back of the neck extending from the centre towards the right side.
(2) There was a bruise on the left side of the upper lip.
(3) There was dislocation of left side of jaw.
(4) There was a small abrasion on the front of right knee."
According to him, "external injury No. 1 appeared to be post-mortem and the rest were ante- mortem in nature, and that injury I was caused by a sharp-cutting weapon, such as sickle while injuries 2 and 4 had been caused "by rubbing on some hard and rough ground". As for injury 3 he stated that it was caused "by the use of force for breaking the neck". Lastly he opined that death was due to shock and asphyxia and not by haemorrhage.
5. The appellants denied the prosecution case. They resiled from their confessions. Appellant Iqbal denied knowledge of criminal intimacy of Mst. Waziran with the deceased and also the production of the sickle. The reason that he gave for resiling from the confession is thus stated:- "I was compelled to sign the written statement before the Mukhtiar kar. It was not read out to me. It is neither true nor voluntary ......... Police had beaten me and threatened that in case I would not sign the written "statement before the Mukhtiar kar my women-folk would be taken out from my house and insulted."
He produced a certificate, Exh. 30, issued by a lady doctor on 17th August 1970, regarding the examination of Mst. Waziran. It is to the effect that she is virgin. Appellant Ghulam Abbas adopted the same reason for resiling from the confession and further pleaded that he was implicated because he is his cousin.
6. The only eye-witness in the case is Mohabat. According to Ramzan he met him on the way a day earlier while going to Umed A.I Sanjrani but he failed to mention his name in F. I. R. In the circumstances, this asser--petition is an afterthought. If according to Mohabat he did not intimate any one about the incident, how is it that he was discovered as an eye-witness by the S. H. O. And examined on 29th July 1970. If for argument's sake he was examined on 29th then why is it that the appellants were not arrested till 31st July 1970. Another intriguing feature is that he stated that he was detained for 3 or 4 days at the police station and it was only when Nuro Punjabi told the police that he was not the culprit, that he was released. What knowledge Nuro Punjabi had about the incident, is obscure. His detention also is not explainable if he had earlier disclosed the names of the appellants. Again, where was the occasion of delaying the examination of Mst. Waziran if her name transpired in his statement., Admittedly she was examined on 31st at the police station after the production of the appellants. There is no explanation for her late examination. These features leave room for believing that Mohabat was not examined on 29th July 1970 and that he was merely a suspect. Assurance is added to it by the fact that it was only after the interrogation of the appellants that the name of Mst. Waziran transpired and that is why she was called at the police station for being examined. Suleman, who claims to be a Zamindar and to whom the appellants had confessed, admitted when confronted with his 164 statement that the appellants also appeared before him four days earlier and confessed that they had killed the deceased on seeing him commit sexual intercourse with Alst. Waziran. If at all the appellants had appeared before him earlier why he failed to convey this information to the police, is again a circumstance which is not consistent, with this disclosure. The impression that the record conveys is that the appellants were interrogated as suspects like others. In the context of the admission of Suleman that the appellants refused to admit their guilt before the police, it is not possible to accept that appellant Iqbal would confess before Suleman. It is also suspicious as to why they would voluntarily appear before Suleman if they were reluctant to admit their guilt. Further, it is not believable that they would confide in some one who did not belong to their region and had no concern with them. Their appearance and production before the S. H. O. On 31st July 1970 is highly suspicious in the context of the fact that the appellants themselves gave their date of arrest as 30th July 1970 in the confessions.
7. The next piece of evidence is the confessions. Both the appellants disowned them on the same ground, namely that they were coerced to con--fess as the S. H. O. Had threatened to dishonour their women-folk. It is an admitted fact that Mst. Waziran was called at the police station on 31st July 1970. It is also stated by Suleman that the appellants were reluctant to confess their guilt before the police. How is it then that they volunteered to confess before the Magistrate. The presence of Mst. Waziran at the police station leaves room for doubt as to the bona fides of investigation when she could have been examined like others in the village. The plea thus gains support from this fact. Considering that there was no ocular evidence and that suspects were being interrogated, it was likely that the confessions were extracted from them by resorting to this process. Even otherwise, the confessions are inconsistent. While Iqbal stated that he and Ghulam Abbas had gone to the farm for taking a round where he saw Mst. Waziran cutting `guwar' to the cotton cultivation, and at that moment the deceased was gazing at her from his sugarcane cultivation and in the context of the suspicion which was entertained by them, both of them `got ghairat', whereupon they felled him down in the cultivation and Ghulam Abbas twisted his neck.
Ghulam Abbas on the other hand gave a different reason, namely that they had gone to the field with their sickles to cut grass where they saw Mst. Waziran cutting `guwar' in the cotton cultivation while the deceased was standing at the ridge of his sugarcane cultivation calling and making gestures to her, whereupon they 'got ghairat' because of the suspicion entertained by them. They then caught hold of him and both of them felled him down and twisted his neck. There is no reference in both the confessions as to who caused the incised injury to the deceased. Both of them gave different reasons for their visit to the field. One merely stated that the deceased was looking at her while the other introduced the feature that he was calling and making gestures to her. Again while Iqbal stated that it was Ghulam Akbar who twisted his neck, Ghulam Abbas stated that both of them twisted it. Thus to an extent lqbal has minimised his role. It is, therefore, not possible to accept the confessions as they stand. Moreover, they are retracted and there is no assurance of their truthfulness from any feature on record. The blood-stained sickle which was recovered at the instance of appellant Iqbal is not established to be the one which was sent to the chemical analyser. The deceased suffered one incised injury. One blood-stained sickle was found at the wardat. This sickle was handed over by Sadiq A.I Shah, Head Constable to the S. H. O. Who dishonestly denied having received it. Only one sickle could have been used for causing the single injury and that was at the wardat. How the other became blood--stained, is obscure. There is also nothing on record to show as to which sickle was sent. In the circumstances, the blood-stained sickle cannot be used as an incriminating evidence against appellant Iqbal.
8. The trial Court described the evidence of Mohabat as very weak but rested conviction on the confessions. It also accepted the production of the appellants and their extra judicial confessions.
From the above discussion we are of the view that the confessions are neither voluntary nor true. Ex facie the ocular testimony of Mohabat appears to us to b fabricated. The production of the appellants by Suleman is shrouded with suspicion. Moreover, he stated that only Iqbal confessed to him while he had no talk with Ghulam Abbas. Why would even Iqbal confess when he did not subsequently admit his guilt before the police, is again a doubtful feature. The trial Court thus wrongly relied on Suleman's evidence Accordingly we are of the view that the prosecution has failed to establish its case against both the appellants. While giving to them the benefit of doubt, we acquit them and accept their appeal. They shall be set at liberty forthwith unless wanted in some other case.