' TUFAIL ALI A. REIMAN, C. J.-At the time that this murder took place, that is, during February, 1971 the first informant, P. W. Dost Mohammad, lived along with his wife in village Jan Mohammad Shoro Railo Miani which is about two miles from the Jam Shoro Police Station in Taluka Kotri, District Dadu.
With him lived his daughter Mst. Zarina who is the murdered woman in this case and two sons, namely, Mohammad Yousuf and Shall Mohammad, the former of whom Is described in the F. I. R. As being 12 or 13 years old while the latter is stated to be about 10 or 11 years. There are about eight or ten other houses in the village and the first informant himself was employed at that time in Phuleli (Hyderabad) as a gate-keeper in the P. W. D. In accordance with his usual custom he left his house for the purpose of performing his duty at 6-00 a. m. In the morning on 21st February 1971 but while still on duty he got a telephone message from one Allah Bux Mohano that his daughter has been murdered by the appellant Chibbar Machi. In his deposition, however, he states that it was one Dost Ali who had been told to give him this message; whether Dost Ali in fact informed him or he sent a message through the said Allah Bux has not been cleared on the record. Neither of the two named persons have been examined.
2. Having received this information any how Dost Mohammad hurried home to find that his daughter was lying murdered with her face downwards in the open ground towards the north-west corner of his house. His wife, section witness Mst. Bhambbi and another witness DawDod, besides the first informant's son Shafi Mohammad were standing there and they informed him that Chibbar had come and stood near their house and he was reprimanded and told to go away to his own house. Now this reference to reprimanding him or to telling him to go back to his own house has a little background which is also mentioned in the F.
1. R. The appellant Chibbar lives in a house which is adjacent to the house of the first informant along with his father, one Sulaiman Machhi. According to the prosecution about a month before the incident Chibhar had been expressly told that he should not visit the house of Dost Mohammad inasmuch as his, first informant's daughter, Mst. Zarina was by now a grown-up young woman. The first informant says that he asked\Sulaiman Machhi particularly that Chibhar should not visit their house because he was suspected of being a bad character; on this Suleiman is stated to have promised that he would prevent his son from visiting the house. To revert to the story which was given to the first informant it is stated that the appellant then went away but a little later, that is to say, at about 9-00 a. m. While Mst. Bhambhi, her son Shafi Mohammad and the witness Dawood were taking mud from the ditch for the purposes of plastering their house, Zarina went out of the house with an earthen jar for fetching water as was usual. When she had gone some little distance but was still within the sight of the prosecution witnesses the appellant came up running and gave a blow with the sharp side of the hatchet upon the back of her neck on account of which she fell down. The witnesses raised cries and on these, among others one Ismail who is also a witness in the case and is described as a Khoso by caste, came up, and according to the first information report, was a witness to the appellant giving injuries to Zarina. The number of injuries upon the deceased is certainly large enough for a person to have come up upon the initial cries and yet witnessed some of them being given to Mst. Zarina by the culprit. The appellant is then said to have left leaving behind him the hatchet with which he had committed the crime. After he left the witnesses went up to the girl Zarina but found her dead. Mst. Bhambhi then told Dost All to inform her husband and, as I have already stated, in response to this message or otherwise, the first informant did in fact come to the scene from where he went to the Jamshoro Police Station and lodged an F. I. R. At 9-00 a.m. This F. I. R. Was recorded by the Assistant Sub-Inspector of Police who was then In charge of the Jamshoro Police Station on a white piece of paper and then forwarded it to the Kotri Police Station for being incorporated in the section 154, Criminal Procedure Code.
3. The Assistant Sub-Inspector, whose name is Mohammad Bashir, then accompanied the first informant to the scene where he prepared a mashirnama of the wardat. Lying very near the dead body was an empty earthen ware jar meant for carrying water but this was neither stained with blood nor damaged. Also lying nearby was the hatchet alleged to have been used by the culprit and this, it is stated, was stained with blood as it naturally would be. The police officer prepared an inquest report and sent the dead body for post-mortem examination and then proceeded to record the statements of the witnesses, that is to say, Mst. Bhambhi, Dawood and Ismail; it is worth noting that the statements of both Dost Ali Shoro and Allah Bux were also taken but these, as I have already said, are not witnesses in this case. At about 4-30 p. m. On that way it is alleged that the present appellant came to the police station of his own accord and was arrested. From his person a shirt and a loin cloth of ajrak which were seen to be stained with blood were recovered. He was also wearing a banyan but this, it seems, did not bear any stains of blood, and was, therefore, not secured. On the 22nd February. 1971 the appellant was produced before the Mukhtiarkar and F. C. M.
Mr. Ghulam Haider Umrani, who recorded his confession. On the next day, that is to say, 23-2-1971 the Assistant Sub-Inspector recorded the statements of Sulaiman and Hashim; Suleiman of course is the father of the appellant and the significance of the examination of Hashim will presently appear. Thereafter statements of the witnesses Ismail, Mst. Bhambhi, Shafi Mohammad and Dawood were also got recorded under section 164, Cr. P. C. Presumably because there is some relationship and it was feared that they might resile from their testimony. He then handed over the papers to the Additional S. H.
0., namely, Pahlwan Khan, but the only step that he seems to have taken in the investigation is to have sent the articles secured to the chemical analyser for examination as to the presence of blood stains. He then sent up the case to the Court of the Civil Judge and F. C. M. Kotri from where it was committed to the Court of Session. The appellant was then tried by the learned Additional Sessions Judge, Dadu who convicted him under section 302, P. P. C. And sentenced him to death; he appeals against this conviction and sentence and the record of the case has also been forwarded to this Court for confirmation of the death sentence.
4. The case of the prosecution rests upon the ocular testimony of the mother of the deceased, 114st.
Bhambhi, and the witnesses Dawood and Ismail, corroborated in some measure by the evidence of the first informant Dost Mohammad, recovery of blood-stained clothes from the person of the appellant and the confession recorded by a Magistrate.
5. I propose to follow the convenient, if somewhat unusual, course of considering the confession first. Now the appellant was arrested upon the 21st of February, 1971 at 4-30 p. m. And produced before the Magistrate on the next day at 11-00 a. m. Upon the score, therefore, of any possible delay that might have occurred in bringing him before the Magistrate there can be no question but that there is no fault to be found with the confession. There are, to my mind, however, several grave defects in the recording of this confession. Although the learned Magistrate states that he gave all the precautions that are usual in these matters and that he satisfied himself that his body bore no marks suggestive of any violence having been used on him, the record of the confession, as the Magistrate had to admit in cross-examination, contains no statement that he examined the person of the appellant for that purpose. Again, although the Magistrate states that he was remanded to judicial custody the record shows that he was remanded to police custody. In his re- examination, learned counsel for the prosecution attempted to retrieve the position by eliciting from the witness that, although he might have recorded that the accused was remanded to police custody after giving the confession, this might have been due to an oversight or it might in fact have been correctly recorded. Now between the two there is of course a world of difference.
Moreover it is to be remembered that although it is important and necessary that after accused parsons have given a confession they ought not be remanded to police custody, for the more important thing is, that before they make the confession, they should be given a complete assurance that, whether or not they make a confession, they will not be remanded to police custody. The reason is obvious. What happens after the confession may not be important but the entire purpose of remanding a person who has made a confession to judicial custody and of assuring him that he would be so remanded is to remove any possible fear that he might have that, if he does not give a confession, he will have to pay the consequences while he is in police custody. The record of the confession clearly does not say that any such assurance was given, and while it is possible that, in the ordinary course, I might have been willing to believe a Magistrate if he said that he had given such a warning. In this particular case, dealing with a Magistrate who cannot even remember whether the recording of the fact that the person was sent to police custody was merely a mistake or is a correct record I should have hesitated to place such implicit faith in his word even if he had said so.
6. The record of the confession shows, moreover, that having been brought to the Magistrate he was given the usual three hours' time for the purpose of reflection. Prior to this, however, there were no preliminary questions although the accused, according to the record, was warned that he was not bound to make a confession and that if he made any it would be taken down in writing and could thereafter be used against him. When he was brought back he was asked only whether he was still disposed to make the confession and the confession was straightaway recorded. It is in very brief terms and may usefully be reproduced: "About 4-5 months back I was betrothed with Mst. Zarina daughter of Dost Mohammad Machi. A few days back I came to know that Mst. Zarina had developed illicit contention with Hashim Shoro. I told her father that Hashim it a bad man and you should not allow him to come to your house. On 2 is February 1971 I woke up at mid-night and heard some sound, I asked as to who they were, on which Zarina and Hashim ran away. I was provoked and in the morning I picked up hatchet and killed Mst. Zarina who was going to fetch water."
' It is only after this that the body of the accused was examined though, as I have stated also it is not stated that the purpose of this examination was to find out whether any violence had been offered to him. It is only then that he is asked questions to ascertain whether he is disposed to make a confession of his own free will or under any inducement, threat or promise. There seems to be little point in asking these questions after the confession had already been recorded. Although the printed form does prescribe certain questions, it does not by any means exclude any others, and in fact the printed form says: "The following and such other questions as may appear necessary to be asked."
' Are to be asked and the form adds that every question and every answer is to be recorded in full.
In compliance of this the Magistrate asked only two questions. The first, was in the stereotyped form as to whether he had been given any inducement, threat or promise by the police or anyone else. To that he replied: "I am not confessing at any body's instance. I have committed murder of Mst. Zarina due to sudden provocation. I would have killed her then and there but I had no hatchet at that time and that both of them ran away on hearing my voice, otherwise, I would have killed both of them."
' The only other question that the Magistrate asked was why the appellant killed only Mst. Zarina and left Hashim alone. Now it is to be observed that in the immediately preceding question Hashim is not even mentioned and that he referred to in the body of the confession which I have earlier quoted. In my view the question is hardly suggestive of a desire to ascertain whether the confession is being made of the accused's own free will but is really in the nature of cross- examination. In these circumstances I am by no means satisfied that the confession is voluntary and, therefore, hold that it is inadmissible in evidence. Even on facts the confession does not appear to be true. The post-mortem examination of the unfortunate girl took place on the 22nd February, 1971 and it was the opinion of the doctor that death must have occurred between 12 and 24 hours before the post-mortem examination, that is to say, between 9-00 a.m. And 9-00 p.m. On the 21st. The first information report in this case was already recorded at 1-00 p. m. On that date and quite obviously the woman was dead no later at the very latest than 12-00 noon. No question, therefore, of the murder of the woman at night can possibly arise in this case; yet the confession speaks of the killing at mid-night. This is so clear and strong a contradiction of the prosecution case and I may say, of the indisputable facts that the confession can hardly tie held to be true.
Even, therefore, if 1 could have been pursuaded to hold that the confession was voluntary and, therefore, admissible, it would, in any case, have to be rejected as being false. In these circumstances I can only regard the learned Judge's examination and conclusion of the evidence relating to the confession as being somewhat naive. He states: "Since the learned Magistrate has been examined in this Court and he has stated on oath that he has recorded the confession after giving all necessary warnings and time for reflection, he has appended the certificate under section 164 (3), Cr. P. C. At the close of the confession, hence I hold that the confession recorded is admissible. Coming back to confession Exh. 6 partly it is consistent with the prosecution case about police mat-treatment etc., a question has been put to A. S.
1. P., Muhammad Bashir but he later denied it. From the evidence on record I conclude that the confession was voluntary and not extorted one."
7. I come next to an examination of the ocular testimony. Now the time that the incident occurred is somewhat vague in this case. The witness Mat. Bhambhi places it a little before breakfast time and, even though this was winter, it could have been thought that it would be before 9-00 a. m. That time, however, is mentioned in the F.
1. R. By the first informant who of course, it Is to be remembered, is not an eye-witness. On the other hand it tallies with the medical evidence as I have already stated. The medical evidence, however, states that the stomach contained semi-digested food, and it \is clear, therefore, that the girl must have taken meals some little time earlier. This, however, is not, I think, a matter of very great importance because when the witness Bhambhi says that it was a little before breakfast time she is only describing the time, she is not stating that the deceased had not in fact taken breakfast and nobody has ever asked any of the witnesses whether she had done so. There may be a variety of reasons why one individual member of the house might have taken food earlier than the others. Or indeed, it might be that the whole family had taken food earlier, and this might be because the head of the house had to leave the house much earlier in order to be able to reach his duty. I am not, therefore, holding merely because of thief medical evidence, that the incident took place much later. I he defence theory that it took place sometime during the night is entirely negative by the fact that when the postmortem examination took place the death could not then have been more than 24 hours earlier; I need not refer to this again as I have discussed it while I was dealing with the confession. The distance between the warden and the police station is only a matter of two miles and yet the F. I. R. Was recorded at Jamshoro Police Station at 1-00 pins. The learned Assistant Advocate-General points out that the first informant was not on the scene and, although he was summoned on telephone, yet he had to come all the way from Phuleli and this might, therefore, explain the delay. I am not wholly happy with this explanation but in view of the fact that the defence was not careful enough to ask any questions about the distance and the likely time that it would take for the first informant to reach the scene, I am not willing to hold that the F. I. R. Is therefore, necessarily belated. On that account at least, therefore, 1 am not willing to go to the extent of saying that this case is necessarily a concocted one. Delay in the F. I. R., however, is essentially a fact which must be considered with other facts in assessing the veracity of the evidence. A belated F.
1. R. Does not necessarily and in-escapably lead to the conclusion that the case is false. But the mere fact that it was not delayed also is not a complete guarantee of its truth; after all, if for any reason a case is to be made out against a particular person, it, does not require very much time to evolve one. In this particular case I started with a bias in favour of the prosecution mainly on account of the evidence of Mst. Bhambhi. She is after all the mother of the murdered girl Zarina and it seems to me that, in the -absence of very grave doubts I could not likely hold that she has exculpated the real culprit and implicated a person completely innocent of the crime. But there are other difficulties in the case to which it will be convenient to refer before I revert to the evidence of Mst. Bhambhi.
8. In the first place one of the witnesses who admittedly saw the crime was the son of the first informant, namely, Mohammad Shafi and, although he is of course a young boy, that is not necessary to say that he is not a competent witness. Section 118 of the Evidence Act states that all persons arc competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years. In the present case there was not even an attempt to produce the witness Court to see whether he was such a young person that he would be disqualified by reason of section 118. But there was yet another and older son of the first informant, a boy named Mohammad Yousuf and about him we hear nothing at all upon the record. There may of course be a variety of reasons why he could not be examined but, if there was any justifiable cause for not examining him, it was surely the duty of the prosecution to have placed before the Court the reasons why he could not be examined.
9. There was then evidence of the witness Dawood. Now this Dawood was the son of Hate who is now married to a woman called Julian but who, before that, was the wife of Sulaiman, that is, the father of the appellant. The precise circumstances in which this marriage took place are not on record but sufficient appears to show that there was at least a diminished sense of cordiality between the parties after the marriage took place. Now although Dawood himself claims to live in Jamshoro, the first informant Dost Mohammad has admitted that he lives in Ungar which is about 10 miles away and really nothing is shown why on that particular day he should have come to help in the mud-plastering of the first informant's house. No body at all has said that any request had been made to him to come for the purpose and he himself does not even say that that was the reason why he came. I am at least very doubtful, therefore, that the witness Dawood was there or that he saw the occurrence. It seems very much more likely that, because the appellant is a son of Sulaiman and there is bad blood between the fathers of Dawood and Sulaiman on account of the marriage of Julian, Dawood could easily be persuaded to give evidence against Claibhar, though of course by reason of their having a common mother, they would be step-brothers. I think it is unsafe, therefore to accept the testimony of Dawood.
10. The only other witness apart from Mst. Bhambhl is Ismail. In the Court of Sessions he completely denied that he had seen the murder at all but since he had supported the prosecution in the committal Court the State was permitted to bring on record his deposition in that Court under the provisions of section 288 of the Cr. Procedure Code. But even in that Court he did not say that he actually saw the appellant killing Mst. Zarina but only that, upon the commotion, he ran up and found Mst. Zarina already lying dead but did see the appellant running away and was informed by the witnesses that he had killed Zarina. Now the evidence of witnesses who at one time give one version upon oath and a vastly different one upon another occasion again on oath is necessarily suspect. It is true of course that the law permits the use of the committal Court statement as substantive evidence in the Court of Session ; it does not follow, however, that the committal Court statement is necessarily to be preferred. In the present case there are really no circumstances which would induce me to prefer one version to the other. If the evidence of Mst. Bhambhi were credible and acceptable then it might well be that one could regard the evidence of Ismail as corroboratory or at least that the fact that he has failed to support the prosecution in the Court of Session would be robbed of the effect which it otherwise would have of belying the statement of Mst. Bhambhi.
11. 1 come, therefore, to the really essential question in this matter, namely, whether Mst. 0nambhi deserves to be believed. As I have said earlier I started with an initial bias in her favour but, upon a careful consideration of the case, I am not able to place upon her evidence that complete and absolute confidence which alone would in the entire circumstances of the case, justify me in accepting her evidence as conclusive of the guilt of the appellant. According to the prosecution case the appellant approached the deceased girl from behind and gave her a hatchet blow. This would suggest that she would fall upon the ground with her face down, as indeed the body is alleged to have been found in that condition. The medical evidence, however, shows that there were as many as eight incised wounds upon the unfortunate girl. It is obvious that the majority of these must have been suffered by her while she was on the ground and it is hardly to be supposed that, while life still persisted, she would be lying completely motionless leaving her assailant to injure her as and where he pleased. Indeed some of these injuries show clearly that she could not have been in the same position. Four of the injuries are on the back, two are on the temporal region, one is upon the left shoulder, and one, although a minor one, is really a very interesting injury. It is an incised wound cutting the ring finger and the middle finger of the left hand suggesting that the deceased raised her hands in a pitiably ineffectual attempt to ward off the blows. But despite all this struggle the earthen ware jar, which obviously must have fallen from her hands, bore not a spot of blood nor was it damaged in any fashion. The inquest report shows that, besides other ornaments, she was wearing as many as six bangles in the right arm and eight in the left arm made of glass. Not one of these broke. I find this quite impossible to believe; much more likely is the theory that some of them broke and this might even account for the difference in the number of bangles on each arm. In that case one could expect to find some broken pieces of glass upon the wardat but the mashirnama clearly shows that there were none. I am, therefore, far from sure that the incident took place at the place where the dead body had actually been found when the 'police came. Now what possibly could be the explanation of this?
12. The deceased was a girl of about 15 years which in the mofassil would be considered a marriageable age and indeed it is the prosecution's own case that they had prevented the appellant from visiting their house because she was of a sufficiently grown up age to make the visit of the appellant undesirable. Certainly the age of the girl and the ferocity with which she has been attacked are compatible with a sexual motive of some character. It may be that the culprit, whoever he was, had asked for the hand of the girl is marriage and had been refused or that, being in love with her, he was jeoulous of somebody else. These are speculations and it would not only be idle but dangerous in the extreme to base any finding, whatever, upon such speculations. I mention them, not for the purpose of attempting to guess what the motive of this murder could be but to reconcile the clear improbability of the girl having been murdered at the place where the police found the body with the fact that Mst. Bhambhi, her own mother, is giving evidence of the incident itself. As I say, I should not normally attribute to the murder of the deceased a reluctance to name the real culprit, if he was known to her and to implicate some body innocent even if she was hostile to tim. That she might implicate such a person in addition to the real culprit is of course not unlikely but this I not the case here. Having taken these matters into very anxious account I can only believe that Mst. Bhambhi bas not actually seen the murder but ha suspected, perhaps for reasons which seemed good to her. That the appellant had caused the death of her daughter. In this view of the matter I am, entirely unable to place any reliance upon the ocular testimony.
' There remains, therefore, only the evidence of the recoveries. By themselves suspicious though these circumstances may be they cannot possibly form the basis of a conviction because the utmost that they could prove is that the appellant was recently engaged in some incident in the course of which human blood was spilled. There is, however, in this case a HUI more. The injuries are as many as eight and are very serious in character and a great deal of blood must have come out of the body; nevertheless there were only two blood stains upon the shirt and some washed bloodstains upon the Ajrak. The appellant was also wearing a bunyan but this was completely free of blood stains this is of course possible but does not seem very probable. In any case this aspect of the case does not very much matter inasmuch as I have already stated the mere fact of recoveries of blood-stained clothes would amount to no evidence at all connecting the appellant with this crime.
13. In this view of the matter, at the conclusion of arguments I felt that this appeal would have to be allowed and the conviction and sentence of the appellant set aside. My learned brother, Fakhruddin, J., concurring with me, we accordingly announced judgment to that effect leaving our reasons to be recorded later. The above is a statement of the reasons which induced me to come to that conclusion.
' FAKHRUDDIN G. EBRAHIM, J.-I respectfully agree.