' KHUDA BAKHSH MARRI, J.-This acquittal appeal filed by State through the Advocate-General, Sind under section 417, Cr. P. C. Is directed against the judgment of learned First Additional Sessions Judge, Nawabshah dated 30th October 1971 whereby he tried and acquitted respondent Haji Khan for an offence punishable under section 302, P. P. C. For murder of one Azizullah.
2. The prosecution story briefly is that deceased Azizullah, his brother Rahmatullah and father Muhammad Soomar and others used to work as hart of the respondent. For sometime respondent suspected that Rahmatullah had developed illicit relations with his wife, he therefore removed them from his land as harts. On the fatal day of incident, instead of sleeping in his own place within the same compound decease I Azizullah slept in place of his brother Rahmatullah under the Chappar near the cattle-pen. Early next morning when Muhammad Soomar and his son Rahmatullah woke up to offer prayer they found Azizullah lying dead having two hatchet injuries on his face and neck. They raised cries on which neighbours Haji Muhammad Bachal, Muhammad Qasim and Muhammad Chuttal arrived there and Haji Muhammad Bachal directed Muhammad Soomar to 'file report with the police who went to Sakrand Police Station and lodged the F. I. R.
Which was recorded by S. H.
0. Dodo Khan on 20th April 1970 at about 7-00 a. m. Thereafter Mohammad Bachal along with P. W.
Haji Khan came to their otaq. At about 6-30 p. m. The respondent is said to have gone to his otaq and made extra-judicial confession before both of them to the effect that he suspected Rahmatullah to be on illicit relations with his wife. He went to murder Rahmatullah but by mistake he caused the death of Azizullah. He further told to call him when the police comes for investigation. After recording the F. I. R. S. H.
0. Dodo Khan visited the vardat in presence of mashirs Muhammad Bachal and Muhammad Chuttal and prepared necessary mashirnama of scene of offence Exh. 11, prepared the inquest report of the dead body Exh. 12 and sent the same for post-mortem examination. He examined Darya Khan, Malook, Muhammad Bachal, Haji Khan, Rahmatullah, Habibullah, Muhammad Idris, Muhammad Chuttal and Muhammad Qarsim. He arrested the respondent in presence of mashirs Muhammad Bachal and Haji Khan. The respondent led them to the room of his house and it is stated that he produced a blood-stained hatchet, a blood-stained shirt, blood-stained Ajrak and a pair of slippers, kept underneath gunny bags. The same were secured by the S. H. O. In presence of mashirs Muhammad Bachal and Haji Khan under Mashirnama Exh.
14. Blood-stained clothes and hatchet were sealed and sent for chemical examination. The report of Chemical Examiner Exh. 16 shows that the articles were stained with human blood.
3. The next day on 21-4-1970 foot-print tests of the respondent through Pagies Darya Khan and Malook were held in rresence of III Class Magistrate and two mashirs Bashir Ahmad and Chanessar and it is stated that both the Pagies correctly picked up the foot-prints of the respondent in the tests and Mashirnama Exh. 15 was prepared. It may be noted that none of the Pagies, Malook and Darya Khan were produced and examined by the prosecution in the Court. On 22-4-1970 respondent was produced before the City Magistrate, Nawabshah before whom he is said to have made judicial confession. The important prosecution wi!Nesses examined =in this case are complainant Soomar father of the deceased, P. W. Muhammad Qasim, Dodo Khan S. H.
0. Mr. Muhammad Anwar City Magistrate, Nawabshah, mashirs Muhammad Bachal and Haji Khan, Doctor Jamilur Rahman and Abdul Qadeer.
4. The respondent in his statement denied the allegations as well as the recovery of blood-stained hatchet and clothes. He also denied having made any extra-judicial confession before Muhammad Bachal and Haji Khan. As to the judicial confession before the City Magistrate he submitted that it was due to inducement and compulsion on part of the Police, mashirs.
Muhammad Bachal and Haji Khan. He pleaded his innocence and involvement in the false case due to enmity.
5. There is hardly any dispute about the death of deceased Azizullah on the place and day of incident by sharp-cutting weapon i. e. The hatchet as we have evidence of P. W. Soomar the complainant, of mashirs Muhammad Bachal and Haji Khan, S. H. O. Dodo Khan and Medical Officer Dr. Jamil-ur-Rahman who performed the post-mortem on 20th April 1970 at 12-30 p. m. On examination he found the following injuries I- "(1) An incised wound T x 1i- x cutting the muscles, mandible on the chin right side and the right cheek, going for 4' deep cutting the blood vessels, larynx. The tooth on the right side (pre-molar) were dislocated from the cut mandible.
(2) Incised wound 5' x2" cutting main blood vessels on the right side of the neck. Oblique in the direction also cutting the muscles on the right side of the neck and back of neck. (Right side), spinal, cord, medullae oblongata at fourth service vertebrae on right side."
' The Medical Officer opined that the injuries were ante-mortem and to have been caused by sharp-cutting weapon such as a hatchet and the death was due to shock and haemorrhage as a result of the above two injuries.
6. Admittedly there is no eye-witness of the incident. P. W. Mohammad Soomar the complainant and father of the deceased stated, that on the day of incident at about 5-00 a. m. In the morning when he got up for prayer he found his son Azizullah lying dead on the cot as his head was chopped off. He raised cries on which his other sons Rehmatullah, Habibullah and other children and co-villagers namely Muhammad Qassim, Muhammad Chuttal son of Muhammad Bachal, tvluhammad Idris and others reached the vardat and found Azizullah dead, there were scaling marks of aked foot-prints and also marks of shod prints of one person outside going to the common street of the village towards east but the same disappeared due to much traffic. There were houses of Haji Khan Jokhio and others to that direction. He gave the motive of the murder as the respondent Haji Khan and his brother suspected his son Rehmatullah to be in toe with ;t1st.
Mena alias Amnat and stopped him alongwith his sons visiting their houses. This was about 7/8 months before the incident. He went to Nekmard Haji Bachal and Haji Gillian Jam requesting them to send for the respondent and others to decide the matter on Holy Qur'an but they replied that it was a matter of ghairat and no faisla therefore could be reached. He thereafter left the cultivation of the respondent and became a tenant of his Marot, Jangal Jam. He suspected that respondent Haji Khan and his brother Khair Muhammad, Bhai Khan and his cousin Mamo alias Imam Bux have murdered his son Azizullah after scaling over the wall for the above reason. This witness in cross- examination has stated that the respondent was son of his sister but again said that he was his Marot Mst. Izat daughter of Noor Muhammad. He made contradictory statement on material points at the trial Court from the statement made before the committing Court, for instance in committal Court he had stated that it was not a fact that Rehmatullah was suspected to be on illicit terms with the wife of the respondent, and that Haji Bachal had accompanied him to the Police Station.
He denied his lower Court statement that the police had arrested other suspects, relations of the respondent and maltreated their women-folk as well as the statement that the police had asked one of the suspect to make the confession to get the women-folk released. He also denied his lower Court statement that "police then took all persons including their women-folk with them" and stated that his son Rehmatullah had stolen corn of the respondent who got annoyed and removed him from cultivation of his land. Not being an eye-witness of the incident, being the father of the deceased he is naturally a highly interested person. Over and above he initially attempted to involve innocently many persons and had made material contradictions in his statement, therefore, the evidence of this witness in our opinion cannot be implicitly relied.
7. The next important witness is P. W. 4 Dodo Khan S. H.
0. Who visited the scene of offence after recording the F.
1. R., he prepared the inquest report and necessary mashirnamas. He stated that he arrested the"- respondent in presence of mashirs Muhammad Bachal and Haji Khan and secured a key from his pocket and that the respondent led them to the room of his house, opened the lock with that key and from underneath empty gunny bag produced the incriminating blood-stained hatchet, shirt, Ajrak and a pair of slippers. It may be noted that this witness had reached at vardat at about 10-00 a. m. He called Muhammad Bachal to make him as a mashir whom he already knew but he did not remember if this Muhammad Bachal before whom the alleged extra-judicial confession had been made had told him that respondent Haji Khan was the culprit. At 2-30 p. m. On the day of the incident be called the other suspects and at 5 p. m. The alleged recoveries were made in presence of mashirs Haji Khan and Muhammad Bachal but surprisingly he nowhere states that the two mashirs had made any statement before him about the alleged extra judicial:. Confession nor the respondent made such a statement. He reached back to the police station according to his own statement at about 9 or 10 p.m. Same day on a jeep but he denied to have any knowledge as to the ownership of the jeep as being of Bachal Jam. He also denied that he had called the women- folk of the suspects. He denied the suggestion in cross-examination that be had kept the relations and women-folk of the suspects up to 20-4-1970 when the respondent had made confession before the Magistrate Nawabshah. He stated that he was prepared to make confession from the very beginning at the time of arrest, yet he admits that the respondent was kept in the lock-up from 20th April 1970 to 22nd April 1970. He attempted to explain that he could not get recorded the confession of the respondent because the Mukhtiarkar was out of headquarters and he was busy in foot-print tests. His testimony has been rejected by the learned trial Court who was of the opinion that when the respondent was arrested on 20th April 1970 and the Head Munshi the III Class Magistrate was available on that day and on 21-4-1970 the respondent was produced before the Head Munshi for holding foot-print tests, why then his confession was not recorded on that day ?
We find sufficient force with this conclusion of the learned trial Court. As no plausible explanation had been given by this witness for the delay in getting the confession recorded if at all the respondent was prepared from the moment of the arrest to make the confession. From this delay we may infer as from statement of P. W. Soomar made in the lower Court that some kind of pressure of coercive was exerted against the family members and other relations of the respondent to make the confession, therefore, we do not attach any weight to the statement of this witness that confession was :voluntary, or no pressure was exerted against family members of respondent.
As to the judicial confession made before the learned Magistrate on :22-4-1970, we are of the opinion that the trial Court was right to reject the same as being not voluntary because admittedly no mandatory warning had been given by the Magistrate to the respondent before recording the confession that he will not be sent to the police custody but will be sent -to judicial lock-up after recording the statement. Therefore the threat . Of being sent back to the police custody naturally hung over his head. Even otherwise there is material contradiction in the alleged judicial ..Confession and the extra-judicial confession made by the respondent which are materially negative to each other because in the judicial confession .;the respondent is stated to have confessed as under :- "I be murdered due to Ghairat. Deceased Azizullah was my hari on my land, since last 12 months. My family used to come on my land with work of picking cotton pods. Deceased Azizullah had kept bad eke on my wife Mst. Amnat for which my wife had complained to me. I had complained to the father of deceased Azizullah but the deceased did not pay attention to it. After that I removed the aforesaid deceased from land for doing harap. On the previous evening of the night of the incident, my wife Mst. Amnat went outside from my house to fetch water. The said deceased was standing hidden in the street and had he given Ishara' to my wife. When I returned back to my house at night, my wife brought that fact to my notice. On that account I did not control over myself due to Ghairat and I t:ok the hatchet and went to the house of deceased who was sleeping alone inside the house. I killed him with two blows. His inmates of the house were sleeping outside."
8. While in the alleged extra-judicial confession before the mashirs Ilaji Khan and Muhammad Bachal he gave different version that he wanted to murder Rehmatullah but by mistake his brother Azizullah was murdered by him because he suspected Rehmatullah to be on illicit terms with his wife and that he may be produced before the police when it arrives at -the vardat. Now it may be noted that the judicial confession is materially different than the alleged extra-judicial confession because in the former it is deceased Azizullah who is supposed to have accosted his wife in the same evening in the village which enraged the respondent and there is no mention of Rehmatullah being the paramour. Therefore, the respondent was rightly given the benefit of doubt by the learned trial Court and in view of material contradictions between judicial confession and extrajudicial confession. One also wonders that when the respondent as stated by this witness had made extra-judicial confession before this witness, why he did not ask him to sit with him in his tag and repeat the same statement when the police arrived ; and as to why he went to his garden knowing fully well that the police was about to come and seek his assistance as a Nekmard of the village ? Although it was he who is supposed to have called the respondent at 5-00 p. m. And got him arrested. The statement of other mashir Haji Khan cannot be put at a better footing than Muhammad Bachal.
9. The next important piece of evidence against the respondent it: evidence of Mashirs Muhammad Bachal and Haji Khan and S. H.
0. Doric Khan with regard to the recovery of blood-stained hatchet and the clothes . As we have doubted the evidence of this witness on question o extra-judicial confession and their conduct as well as the evidence of S. H.
0. Dodo Khan in some material points, we cannot rely implicitly on the rest of the statement as regard to the recovery. Besides it is in evidence of P. W. Muhammad Soomar the complainant that his niece is married to mashir Muhammad Bachal the Nekmard but this was denied by Muhammad Bachal which again goes to show that he appeared to be an interested witness. The learned trial Court has rightly discarded the statement of other mashir Haji Khan on the ground that he had made many admissions in the lower Court, that the relations of the respondent were arrested and maltreated by the police and the respondent was forced to make confession but this fact is denied by him in the trial Court. He in our opinion has very rightly rejected the statement of this witness who acted as mashir as well as witness to extra-judicial confession. It was held in The State v. Minhun alias Gul Hasan (1) that "unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true.
' The proposition that a retracted extra-judicial confession cannot corroborate a retracted judicial confession cannot also be assailed where corroboration is found necessary, for, that would amount to utilising of one piece of tainted evidence to corroborate another piece of tainted evidence.
10. For the reasons given above, we are of the opinion that the prosecution has failed to prove the guilt of the respondent beyond any reasonable doubt and in the circumstances the respondent was rightly acquitted by the learned trial Court. We, therefore, see no reason to interfere with the impugned judgment and see no force in this Acquittal Appeal which is hereby dismissed. {{FOOT NOTE}}
(1) PLD 1964 SC 815 {{FOOT NOTE}}