1. ' M. A. RASHID, J.-On 5th September, 1972, complainant Manzoor Ahmed son of Moso appeared at Police Station Gadap at 40 minutes past midnight and lodged an F.
1. R. He stated therein that he and his cousin Muhammad Bux alias Mamdoo were working as farm laborers on the farm of one Rashidullah near Memon Goth and that the two used to live together in one dera. They used to take their meals together. On 30th August, 1912, deceased Muhammad Bux left for working on another portion of the farm alongwith accused/appellant Ghulam Kadar and Ghulam Nabi. That day the deceased did not return to the dera at 12 noon for taking lunch. Ghulam Kadar however, came back and on enquiry from the complainant told him that Mohammad Buz hal gone to the City to meet one Ghulam Rasool. The deceased did not return that evening and next morning the complainant got suspicious and proceeded to the city to make enquiry from Ghulam Rasool. Ghulam Rasool stated that the deceased had not met him the previous day. He came back and complained about the miss-statement of Ghulam Kadar to appellant Ghulam Nabi. Ghulam Nabi evaded any forth-right reply. The complainant continued to search for the missing deceased. On the evening of 4th September, 1972, the owner of the farm came there and the matter was reported to him. The owner also made enquiries from all the employees at the farm. The complainant then went towards that side of the farm where the deceased had gone, along with accused Ghulam Kadir, to work on that day. There he found fresh dug earth. He scrapped the earth and the feet of the deceased came out. Bad smell was also coming. He reported this fact to the owner of the farm whereupon everybody went and saw that it was the dead body of the deceased.
2. ' As regards the motive, the complainant states in the F. I. R. That because of the mis-statement made by the accused appellants he got suspicious that they both had, in collusion with each other, committed the murder of Muhammad Bux, The reason being that Muhammad Bux had developed illicit relations with Ghulam Nabi's wife and this fact had been witnessed by eth the appellants.
3. ' After recording the F. I. R. P. W. Ghulam Sarwar, who was the officer incharge of the Police Station at that time, proceeded to the scene of occurrence where he got the dead body dug up from the ground in presence of the mashirs. He prepared the inquest report and then sent the dead body to the Civil Hospital for post-mortem examination through constable Nazir Hussain Shah. At this point S. H. a P. W. Raja Ajaib Khan took up the investigation in his own hands. He recorded the statements of P. W. Manzoor Ahmed, Ahmed Bux and Aliahyar. He arrested the accused persons who were available at the farm. On the potation of accused Ghulam Kadir he prepared the mashirnama of the place of incident. Accused Ghulam Nabi led the investigating officer to a place close to the spot where the dead body was buried and a pair of shoes belonging to the deceased were dug out which was duly identified by P. W. Manzoor Ahmed. A kassi, alleged to be the weapon of offence, was produced by accused Ghulam Kadir from the machine room close to the tube-well on the farm.
4. ' On 7th September, 1972 the two accused persons were produced before Mr. Muhammad Umer tle Additional City Magistrate, Karachi, for recording their confessional statements. On the same day the Investigating Officer sent blood-stained clothes of appellant Ghulam Kadir and those of the deceased to the Chemical Examiner. Having completed the investigation he challaned the case in Court.
5. ' In the confessional statement appellant Ghulam Kadir had stated that Mst. Naziran had developed illicit relations with deceased Muhammad Bux and that her husband appellant Ghulam Nabi had, seen the two in objectionable condition and had related the story to this accused appellant. This bad enraged Ghulam Kadir. A few days prior to the incident the father of Mst.
6. Naziran took her away to the village and in the meantime accused was looking for a chance to kill the deceased. On the day of occurrence the deceased was all alone with this accused in the garden of Rashidullah where he took the char ce and struck a spade blow on the neck of the deceased which killed him on the spot. At 2 p.m. His brother Ghulam Nabi came there where he was told by Ghulam Kadir that he had killed Muhammad Bux. Thereafter the two dug out the earth On the side of the garden where they buried the deceased. After 5/6 days bad smell started coming out where upon the police was informed who dug out the dead body. Ghulam Nabi in his statement before the Magistrate repeated the story of illcit relations of Mst. Naziran with Muhammad Bux and how he saw her and related the story to his brother. He further states that on the day of occurrence Ghulam Kadir came to him and informed him that he had killed Muhammad Bux with a spade. He says that then he went to the spot and saw the deceased lying dead, that he dug the earth and the two buried the dead body in it ; that after a few days there was bad smell whereupon police was informed who came and dug out the earth.
7. ' When the two accused persons were confronted with this confessional statement at the trial they both retracted from it and denied their correctness.
8. ' The post-mortem examination was carried out by Dr. A. S. Shamim, Assistant Police Surgeon, Karachi on 5th September, 1972 at 12-45 p.m. He found that the body was in an advanced stage of de-composition and was in the process of mummification. The hairs were not present on the scalp.
9. On external examination the doctor found the following injuries : "i1) Incised wound about 4' x If on the left side of face from the body of left mandible up to the interior border of plasma muscle and bone deep with the fracture of underlying rumpus of the left mandible.
(2) Incised wound 3' x 1' about 1/2' distant to the injury No, 1 and parallel to it and muscle deep.
(3) Incised wound 3' x on the left side of neck at the level of fourth cervical vertebra and at the mid clavicle line. It was bone deep with the under lying fracture of the fourth servical vertihra.
(4) Abrasion 1' x on the lateral canthus of left eye.
(5) Lacerated wound 1' x 1' on the thinner eminence of the left palmer surface of the band."
10. ' Ali the injuries were, in the opinion of the doctor, antemortem and homicidal in nature. On internal examination he found the following injuries : "(1) No fracture of skull bone found.
(2) Left mandible was fractured out in two pieces at the Jeval of above the angle of the mandible on the ramous.
(3) Fracture of the 4th servical vertibra at the lateral side. Common caroted artery of the left side and other vessels on the left side was cut out."
11. ' In his opinion the third injury was individually sufficient in the ordinary course of nature to cause death. He was also of the opinion that the time between the death and post-mortem examination was approximately 5/10 days. 'the learned Additional Sessions Judge, Karachi, found accused Ghulam Kadir guilty of the offence under section 302, P. P. C. And sentenced him to life imprisonment. Accused Ghulam Nabi was found guilty of an offence under section 2o1, P. P. C. And was sentenced to undergo R. I. For 3 years and to pay a fine of Rs, On or in default to further undergo R I. For six months.
12. ' The above narration of facts indicates that the prosecution story rested mainly on the circumstantial evidence and the confession which was retracted at the trial. The first of the series of the circumstantial evidence is the statement of the complainant Mar zoor Ahmed that on the day of occurrence deceased Muhammad Bux went along with accused Ghulam Kadir towards that portion of the farm where, later on, his dead body was dug out. By this statement the prosecution tried to establish the fact of the deceased being last seen in the company of accused appellant.
13. The evidence of last seen, by itself, is of a very weak nature. Even in a case where there is corroborative evidence of recovery at the pointation of the accused the evidence of last seen has not been made the sole basis for conviction. This is the vie sir taken by Lahore High Court in Basant Singh v. Emperor (1) and Muhammad Ali v. Emperor (2). But even where such an evidence is relied upon the prosecution has to clearly indicate that the deceased was last seen with the accused and that there was no possibility of the deceased having gone away from the accused before being killed. In the present case there is no evidence that the deceased went to that portion of the farm, where ultimately his dead body was found, only in the company of accused Ghulam Kadir.
14. The prosecution has also failed to bring any evidence on record to indicate that there was no possibility of the deceased leaving the accused person till he was murdered. Under these circumstances this type of evidence would not help the prosecution story.
15. ' The next piece of circumstantial evidence is the recovery of the dead body. But strangely enough the dead body was located by the complainant himself. According to his own statement he had been searching for the deceased since 30th August according to the F. I. R. And since 27th or 28th August according to his statement at the trial. And it was he alone who finally succeeded in locating the spot where the dead body was later on found to be buried. The evidence regarding the recovery of the dead body is not straight. In the F. I. R. He claims to have scrapped the earth and located the foot of the deceased. _In his statement before the court he says that he found bad smell coming from that spot and reported the matter to Rashidullah whereupon the spot was dug and the dead body was found. But the mashirnama. 10 as well as the statement of mashir Nazir Ahmed indicates that the spot was dug for the first time in presence of the police. Whatever be the correct position this evidence may lead to any inference as regards the complainant, but no adverse inference as regards the appellants can be drawn from it. The least that can be expected of an evidence of recovery of dead body is, if it is to be used against the accused persons, that such recovery should be made at the instance or pointation of the accused persons, which is not the case here.
16. ' The third circumstance brought at the trial and rightly rejected by the trial Judge was the recovery of the shoes of the deceased. According to the Investigating Officer Raja Ajaib Khan it was accused Ghulam Nabi who led him and the mashirs to this discovery. The main ground why this recovery of shoes was discarded was that the mashir Nazir Ahmad had denied if the shoes were seized in his presence. He had also stated that the contents of that mashirnama had not been read over to him by the police. This piece of evidence, is therefore, likewise, of no avail to the prosecution.
17. ' The last piece of circumstantial evidence which has been brought by the prosecution on record is the recovery of clothes of accused Ghulam Kadir which was later found by the Chemical Analyser to be stained with human blood. But strangely enough the mashirnama as well as the statement of the investigating officer shows that the clothes, when recovered, had been washed. This should have been the natural thing to happen, because no person would allow blood-stained clothes to stay in their original condition for such a long time. The second important circumstance in this connection is the statement of P. W. Nazir who was the mashir of the recovery of dhoti and shirt of accused Ghulam Kadir. He states that he did not see any blood marks on these clothes. Evidently there was some subsequent manipulation with these clothes which resulted in the report of the Chemical Analyser indicating human blood on them. This piece of evidence is, therefore, equally unworthy of credit. {{FOOT NOTE}}
(1) AIR 1927 Lab. 541 (2) AIR 1929 Lah. 61 {{FOOT NOTE}} ' The circumstantial evidence brought on record in this case and as discussed above has failed to meet the tests as laid down in Fazal litahes case (1). It would be safer to exclude it from consideration.
18. ' Now we are left with the confessions made by the two accused persons P. W. Muhammad Umer, Additional City Magistrate, Karachi. As pointed out earlier these confessions have been retracted at the trial. There is no doubt that the principle of law as laid down in Minhun's case (2) is that a retracted confession whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions and if such confessions are found to be true and voluntary there was no need at all to look for further corroboration and they could validly form the sole basis of the conviction of the maker. But it is also held in the same authority that as a rule of prudence it is always proper that such confession should be corroborated in material particulars and that in the case of retracted confession it is the duty of the Court to inquire into all material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true. The point to be seen in this case is whether the confessions mado by Ghulam Kadir and Ghulam Nabi meet the standards laid down by their Lordships of the Supreme Court in the above-quoted authority.
19. Accused Ghulam Kadir states that he struck only one blow with the spade on the neck. The medical evidence indicates that there are three sharp-edged injuries and two lacerated wounds inflicted with heavy blunt weapon on the body of the deceased. This material contradiction between the medical evidence and the confession strikes at the very basis of the truthfulness of this confession made because the medical evidence, coming from an unimpeachable source, has to prevail over any other piece of evidence. Another important circumstance which belies the confessional statement is that according to the confessors the killing took place during the morning hours of the day and that the dead body was buried sometimes after 2 p.m. It is not believable that a crime of this type should be committed in broad daylight and the dead body allowed to remain in the open in a garden where admittedly 10/12 persons were working as labourers. There would always have been a chance of somebody locating the dead body. There are some minor contradictions between statements of Ghulam Nabi and Ghulam Kadir which also throw doubt about the veracity of the two statements.
20. ' Not only the truthfulness of the statements is in doubt but their voluntary character is also not above suspicion. According to the statement of P. W. Muhammad Umer, the Magistrate who recorded the confessional statements, both the accused persons were present when their respective statements were recorded. In the case of Dhani Bakhsh v. State (3) the Supreme Court has decried the practice of recording of confessional statements of an accused in the presence of other accused person and has held that recording of statement of one while the other is present, casts serious doubt on its voluntariness which is the basic requirement of law, as also for its appeal for the judicial conscience.
21. In view of this discussion we find that the prosecution has miserably failed to bring home its charge to the accused persons. We had accepted A the appeal on 11th March, 1976 and had ordered the release of the accused persons forthwith on that day.
22. ' These are the reasons for the same.
23. ' MUHAMMAD HALBEM, J.-I agree. {{FOOT NOTE}}
(1) PLD 1953 FC 214 (2) PLD 1964 SC 813 {{FOOT NOTE}}
(3) PLD 1975 SC 187