' Appellant Mehmood was tried alongwith co-accused Ghulam Muhammad by Sessions Judge, Tharparkar at Mirpur Khas for the offence under section 302/34, P.P.C., who found the appellant guilty for the offence under section 302, P.P.C. And sentenced him to imprisonment for life and to pay a fine of Rs,20,000 or in default to suffer R.I. For two years more. Rs,10,000 out of fine, if recovered were ordered to be paid to legal heirs of deceased Muhammad Yasin as compensation under section 544-A, Cr.P.C. The benefit of section 382-B, Cr.P.C. Was also extended to appellant. By this appeal filed under section 410, Cr.P.C., the appellant has challenged his conviction and sentence recorded/awarded on 17th March, 1991. Co-accused Ghulam Muhammad who was convicted for the offence under section 323, P.P.C. And sentenced to suffer imprisonment already undergone by him, however, did not challenge his conviction and sentence.
2. The facts are simple and may be briefly summed up. Deceased Muhammad Yasin resided in Deh 190, Taluka Digri. On 7-2-1990 at about 2-30 a.m. He left his house for diverting water to his lands, when on the way he was brutally murdered. Since he did not reach to the watercourse up to 3-00 a.m., when he had to take his turn from Bashir Ahmed Arain, a search was made for him and during the course of search complainant Shah Muhammad, maternal-uncle of deceased Muhammad Yasin and others found his dead body with hatchet injuries. Shah Muhammad went to the house of deceased Muhammad Yasin and informed the inmates of the house about this incident. He then went to the house of Maqsood Ahmed, Councillor of the area, but he was informed that Maqsood Ahmed had gone to Tando Jan Muhammad. Complainant Shah Muhammad then proceeded to Tando Jan Muhammad, where he informed Maqsood Ahmed about the incident. On the same day at 9-30 a.m. The report of this incident was lodged at Tando Jan Muhammad P.P. A copy of this report was then sent to Digri Police Station, where a formal F.I.R. Was registered. On 11-2-1990 both the appellants went to the shop of Muhammad lqbal situated in Tando Jan Muhammad and confessed their guilt before him in presence of Maqsood Ahmed, Councillor. Both Muhammad Iqbal and Maqsood Ahmed then informed the police about this confession. On the same day Muhammad Hashim, S.I.P., arrested both the accused in presence of Mashirs Ghulam Mustafa and Ansar Ahmed. Both the accused then volunteered to produce crime weapons. The appellant took the police officer and Mashirs to his house and produced the blood-stained hatchet lying there which was seized and sealed on the spot. Accused Ghulam Muhammad also led to the Police Officers and Mashirs to his house and produced one Lathi before them. On 12-2-1990 both the accused were produced before Mukhtiarkar and F.C.M., Digri who recorded their judicial confessions after performing all the formalities of law. On the same day footprint test in respect of both the accused was held through Halio, a private tracker who picked out their shod footprints correctly. After usual investigation both the accused were sent up.
3. Charge under section 302/34, P.P.C. Was framed against the accused and they were asked whether they are guilty or have any defence to make, to which they pleaded not guilty and claimed .a trial. At the trial the prosecution examined complainant Shah Muhammad (P.W.1), Ghulam Mustafa Mashir (P.W.2), Allah Bachayo, Mukhtiarkar and F.C.M. (P.W.3), Dr. Shafqat Hussain (P.W.4), Ghulam Qadir, Tapedar (P.W.5), Maqsood Ahmed (P.W.6), Muhammad Iqbal (P.W.7), Halio (P.W.8), Chamjimal P.C. (P.W.9) and Muhammad Hashim S.I.P. (P.W.10).
4. In his statement recorded under section 342, Cr.P.C., the appellant has denied the case of the prosecution by alleging enmity with Maqsood Ahmed and Muhammad Iqbal due to party politics.
He examined himself on oath (D.W.1). No other witness in defence was, however, examined.
5. On the assessm ent of evidence, available on record the learned Sessions Judge found the appellant guilty for the offence under section 302, P.P.C. And convicted him accordingly.
6. I have heard Mr. Usman Ghani Rashid, learned counsel for the appellant and Mr. S.Z.A. Qureshi, learned counsel for the State. The latter has supported the impugned judgment.
7. The case of the prosecution mainly rests upon circumstantial evidence, consisting of following items:--
(1) extra judicial confession of appellant before Maqsood Ahmed, Councillor (P.W.6) and Muhammad Iqbal (P.W.7); ' recovery of hatchet at the pointation of appellant, which on examination by the Chemical Examiner was found stained with human blood;
(iii) retracted judicial confession of the appellant;
(iv) evidence of footprints, and
(v) motive.
8. The fact that Muhammad Yasin died an unnatural death after sustaining hatchet and Lathi injuries is proved from the evidence of Dr. Shafqat Hussain (P.W.4), who had conducted the autopsy on the dead body of Muhammad Yasin and found nine incised wounds on his person, out of them two were individually sufficient to cause death in ordinary course of nature. It is thus obvious that whoever had caused these injuries to deceased Muhammad Yasin had no other intention, but to commit his murder.
9. Admittedly there is no direct evidence in this case which hinges upon circumstantial evidence alone. Circumstantial evidence is considered to be the best possible evidence, because as the saying goes, "Men may lie but circumstances will not", but to find a person guilty of a criminal offence on such evidence, the facts proved must be consistent with the theory of guilt and incompatible with the theory of innocence.
10. Bearing this principle in mind, I shall endeavour to find out if the evidence available on record is such as may point out to one possible inference leading to the conviction of the accused.
Admittedly it was a case of blind murder and no suspicion was shown upon any person in the F.I.R.
(Exh.8/A). No progress could be made in this case for a period of three days till 11-2-1990 when the appellant and co-accused Ghulam Muhammad (who has not filed an appeal) appeared before Maqsood Ahmed, Councillor (P.W.6) and Muhammad Iqbal (P.W.7), and feeling the prick of conscience for having murdered his first cousin, the appellant sought expiation of his sin by coming out with truth. Both Maqsood Ahmed (P.W.6) and Muhammad Iqbal (P.W.7) have fully implicated the appellant in this behalf. They had immediately rushed to police post and informed Muhammad Hashim S.I.P. (P.W.10) about this new development. Muhammad Hashim S.I.P. (P.W.10), when examined in Court has corroborated the version of both these witnesses. Generally speaking, evidence of extra-judicial confession is a very weak type of evidence, which is to be received with great caution and no person can be convicted on this piece of evidence alone. However, each case presents its own peculiarities and commonsense must be brought to bear upon the facts elicited in every case. The evidence which has come on record proves that deceased Muhammad Yasin was a first cousin of the appellant. The parties had absolutely no enmity with each other. All the material witnesses examined by the prosecution are Arain by caste and they are connected/related with both the appellant and deceased person. There is also no dispute that Maqsood Ahmed (P.W.6) is the Councillor of the area. Likewise Muhammad Iqbal (P.W.7) appears to be a respectable person. In these circumstances it was natural for the appellant to have approached these persons with the aforesaid extra-judicial confession.
11. The main attack on the evidence of Maqsood Ahmed (P.W.6) and Muhammad Iqbal (P.W.7) is that they are related to deceased Muhammad Yasin and are thus interested in the prosecution.
That no doubt is true, but their testimony cannot be brushed aside on the ground of relationship alone, specially when they are also related to the appellant and had absolutely no reason to depose falsely against him. Much capital was sought to be made out of the fact that both of them have given different times of the arrival of the accused persons at the shop of Muhammad Iqbal (P.W.7). These are not really contradictions of a nature which would shake the probative value of the evidence but this discrepancy occurred due to lapse of time. Both these witnesses were found reliable by learned Sessions Judge who had an additional advantage of watching their demeanour and I see no reason to take a different view.
12. I now proceed to examine the retracted judicial confession of appellant, which also discloses the motive of this case. Muhammad Hashim S.I.P. (P.W.10) has arrested the appellant on 11-2-1990, and on the following day, viz. 12.2-1990 produced him before Mukhtiarkar and F.C.M. Digri for judicial confession alongwith co- accused Ghulam Muhammad. Allah Bachayo, Mukhtiarkar and F.C.M. Digri (P.W.3) has testified about the formalities observed by him to remove the appellant from the influence of police. He took all necessary precautions to satisfy the appellant that he was before a First Class Magistrate and not before a Police Officer. The necessary certificate as required by section 164(3), Cr.P.C. Was also appended by the Magistrate, The ground upon which a confession is received is the presumption that no person will voluntarily make a statement which is against his interest unless it be true. The appellant has implicated himself in his confession (Exh.10/A) in the following words:-- "No one has given me any threat or inducement. I further say that deceased Yaseen is my cousin (son of uncle) and our houses are joint. Yaseen used to listen tape-recorder in his house with loud sound, whereupon we forbade him, but he continued to do so. We complained the Nekmards of the village, but he did not refrain. He appointed a Bheel farmer who used to visit his house and the farmer developed illicit terms with his sister, whereupon we asked the Nekmard of the village Nisar Ahmed to get the Bheel expelled. On the above matter he was annoyed with us and used to damage our crop and water. On the night of incident Yaseen had gone to water the land. Then, I and Ghulam Muhammad Ara in went to the land of Yaseen and sat under the Berry tree and waited for Yaseen. After some time Yaseen came there. I caused sharp-sided hatchet injuries to Yaseen and Ghulam Muhammad also caused him Lathi injuries. Thereafter, we went to our houses leaving Yaseen dead there."
13. The only grievance, learned counsel for the appellant ventilates is that the confession is neither voluntary nor true. I have carefully examined the evidence of Allah Bachayo, Mukhtiarkar and F.C.M.
Digri F (P.W.3), which makes it clear that all necessary precautions were taken to remove the appellant from the influence of police, but still he was prepared to make a confession. Again the confessional statement cannot be brushed aside simply for the reason that the motive disclosed therein was not adequate. The motive is not an element essential to prove the guilt of an accused in a criminal trial. It is a factor to be taken alongwith other circumstances attending to a case.
Therefore, an adequacy or otherwise of the motive hardly makes any change. There is no knowing what human beings will do. They will sometimes do the most stupid things and I can only suppose in this case that the appellant was a fool so as to commit the murder of his own cousin on such a petty matter. The last two contentions were both feeble and faint, thus lacked the vigour as well.
This aspect of the case was examined by learned Sessions Judge in para. 50 of the impugned judgment and he answered the same in the following words:-- "From careful perusal of such confessional statements of the two accused it would appear that they had narrated the story which was not previously known to the police. In particular accused Mehmood had motive to kill Yasin. Their confessions receive full corroboration from the nature of the injuries found on the person of Yasin as referred to above. Yasin, it may be recalled, had nine incised wounds on various parts of his body and one abrasion 2 c.m. x 2 c.m. On anterior surface of left leg, 6 c.m. Below left knee joint. So the confessional statements of the two accused stand fully corroborated by such description of the injuries on person of Yasin which mostly appear to be caused by hatchet and one by hard blunt substance like Lathi."
14. The perusal of the record further shows that footprints of two persons in shoes were found at the place of incident. Halio (P.W.8) who is a private tracker had seen these prints at the place of occurrence and on 12-2-1990 he picked out the same in the footprint test held under the supervision of Mukhtiarkar and F.C.M. Digri. Halio (P.W.8) claims to be an expert and his testimony shows that he is Raj Peri for the last about 40 years. As an expert he is competent to give in evidence his opinion as to the conclusion from facts within the range of his speciality. The value of evidence with regard to footprints is obviously very little and such evidence is by itself not sufficient to bring home the charge against the accused, but this piece of evidence can certainly be used for the purpose of corroboration. Halio (P.W.8) besides being an expert in his field, had no reason to depose falsely against the appellant.
15. The evidence of recovery of blood-stained hatchet at the instance of the appellant does not appear to be convincing. Ghulam Mustufa (P.W.2) who has acted as Mashir of recoveries has admitted in clear terms that the hatchet was produced by the appellant from the room of his house, where he resided alongwith his wife, brother and father. His possession, therefore, not being exclusive, the evidence of recovery of hatchet cannot be relied upon by the prosecution.
16. All the above factors, when combined together leave no room of doubt in my mind that the appellant and none else was the author of this crime. He was, therefore, rightly convicted and sentenced. The appeal has got no merits and is accordingly dismissed. The appellant who is in custody be informed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.