' MUHAMMAD HALEEM, J.- Appellant Lakho stands convicted under section 302, P.P.C. For the murder of his father, Abdul Wahid, and sentenced to transportation for life and to pay a bile of Rs, 1,000 or in default to suffer rigorous imprisonment for one year. He was also convicted under section 13-D of the West Pakistan Arms Act and sentenced to suffer rigorous imprisonment for one year, both sentences to run concurrently, by the learned Sessions Judge, Tharparkar at Mirpur Khas, vide judgment dated 26th April 1972. The appellant has filed this appeal to assail his conviction.
2. According to the prosecution case, the incident occurred in the garden of the deceased in village Hail Dilawar, Taluka Samaro, District Tharparkar on 8th November 1970 at 10 a. m. While Abdul Hakim, the brother-in-law of the deceased, was sitting in the shop of Badal in village Pitharo and settling accounts, Dadu Rajar came to his shop and informed him that on the way he was told by Dajo Kolhi that the deceased had died in the village and so he had come to give that information.
Abdul Hakim immediately started on horse-back to the deceased's village which was about 2 miles away and when he was about a mile and a half from; there he met Kamaluddin in a jeep who was also going to inform him about his death. Abdul Hakim left his horse and went in his jeep to the garden. There he was informed by the appellant that the deceased had committed suicide. Such report was thereupon lodged by Abdul Hakim at police station Shadipali at 3 p. m. The same day, which was recorded by Muhammad Rafiq S. H.
0.
3. After recording the report, the S. H.
0. Repaired to the wardat which as shown to him by Abdul Hakim, he noticed two 'rifle' shot injuries and two abrasions on his body. A rifle was lying in between his legs and the thumb of the left foot was on the trigger of the rifle. On pulling the bolt he found a crime empty in the chamber. On search of the deceased's clothes he found a match box, a bundle of 'bin', a tin box, and two applications, Exhs. 27 and 28, written in Sindhi and stained with blood. These articles were secured in the presence of mashir Saleh, vide mashirnama Exh.
14. He then sent the dead body for post-mortem examination. The surrounding circumstances, however, gave to him an indication that it was not suicide but a case of murder. After interrogating the appellant at 1 a. m. He sent a report on a plain paper for being incorporated in the 154 book- maintained at Police Station Shadipali. A case of murder was then registered on behalf of the State.
Such report is Exh.
22. The appellant was arrested-at 2 a.m. In the presence of the same mashir, vide mashirnama Exh.
16. In the morning he examined Dhani Bax, Salim, Dajo, Resham, Dadu, Mst. Amine. And Mg. Halima.
The same day the appellant showed to the mashir and the S. H.
0. The wardat and again on search being made of the place. The S. H. O. Found one other crime empty lying on the boundary marks, three paces away from the place where the dead body lay. It was taken into possession vide mashirnama, Exh.
30. The appellant then led the S. H. O. And the mashir to the house of the deceased where the appellant also resided and showed a place in the room from where he had taken the rifle and two bullets from a leather bag. The leather bag contained five live bullets. He then led the S. H.
0. And the mashir to another room, from where he produced a pen. Both these articles were secured vide mashirnama, Exh.
17. Appellant also led the S. H.
0. And the mashir to his shop and from a wooden box he took out a diary of the year 1966 which was taken into possession vide mashirnama, Exh.
18. On 10th November 1970, the appellant was produced, before the Mukhtiarkar and F. C. M., Samar, who recorded his confession. On 11th November 1970, Muhammad Arab, Ahmad and Alim were examined and on 20th Badar was examined. Lastly on 23rd November 1970 Waryam was examined. On 24th November 1970 the specimen handwriting of the appellant was taken in the presence of a First Class Magistrate Mirpurkhas and was sent for comparison with Exhs. 27 and 28 to the handwriting expert, but on examination it was reported that the material was insufficient for giving any opinion. The rifle and the empty shell were sent to the forensic Labaratory for examination and report. The two crime empties were reported to have matched with the rifle. The blood-stained earth, which was secured from the wardat, was also reported to be stained with human' blood.
4. The autopsy on the dead body was performed by Dr. Jhamandas, who noticed the following injuries:-
(1) An oblique lacerated wound 3" x 1" through and through the left forearm over the lower 1/3 of ulna-border with inverted margins. There was no tatooing of the adjacent skin nor singing of the hairs It communicated with a large wound lacerated 5" x 34" over the radial aspect of lower 4 left forearm fracturing both the radius and ulna into multiple pieces and lacerating all the tissues. The edges of the wound were everted and lower part of the forearm and head were attached to the upper part by two tages of skin on both sides. Few fractured pieces of two bones were missing. Two distorted bloodstained metallic segments of spring like watch strap were recovered from the wound. They were sealed and sent to the police.
(2) Multiple abraded contusions of the skin collusive to each other over an area of 3" x 2" with little laceration in the center over the front of left side chest above and medial to left nipple and below the clavical. One metallic sigment of watch strap was recovered from within the laceration in the center. Such multiple small abraded contusions were scattered around the above-mentioned large contusion mainly over the left shoulder and adjacent to the left upper and also over the left side of neck above the clavical. Two imbedded metallic pieces were recovered from within the abraded contusion of the left side neck. On dissection sub-contusion tissues were found healthy.
The metallic sigments were sealed and sent to the police.
43) A lacerated wound 1" x x 34" deep on probing over the left side of front of neck just below chin and above the hyoid bone going before backward and slightly upward. The margins were inverted.
There was no blackening or tatooing. On dissection of small distorted metallic pieces were recovered from within the injury at different depths and a distorted lead piece was recovered from the front of left side of first cervical vertebrae. The pieces were sealed and sent to the police.
(4) A circular penetrating wound 1/31' in dismeter into through and through the body over the intercoastal space on the front near sternum with inverted margins. There was no blackening. On probing it was communicating with the lacerated wound 34" x 1411, on the lower left side of back of chest 14" away from midline running obliquely above downwards, and inwards. The margin of 2nd one were everted. Portions of internal organs were protruding out from the wound.
' In his opinion, the injuries were caused by two shots from a firearm. Injury No, 1, according to him, was sufficient to cause death in the ordinary course of nature. He also opined that the shots were fired from a distance of more than six feet and that the injuries could not have been self-suffered.
5. The appellant denied the prosecution case and proclaimed his innocence. As for the judicial confession he resiled from it giving out the reason that the police had demanded Rs, 10,000 from him, which he refused torpay and on the following day the police took him and his wife to the police station and threatened him to confess otherwise they would disrespect her, and to save her honour he confessed before the Magistrate. He denied his handwriting on Exhs. 27 and 28 and so also the taking of the rifle and the bullets from the house of the deceased, the production of the pen and the pointation of the place where the deceased was killed. In reply to the question as to whether he had to say anything else, he stated:- "My father while marrying the second wife had told her that my mother i. e. His first wife had died.
After marriage with the second wife when she came to our house she found my mother in the house of my father.
' On this account there used to be quarrel between my father and my step-mother. As he had a wretched life on account of strained relations between him and my step-mother my father appears to have committed suicide." ' learned no evidence in defence.
6. The trial Court accepted the confession as true and voluntary. Further it held the confession to be duly corroborated on all material particulars. In so holding it gave credence to the evidence of Abdul Hakim, Mst. Amina, Dhani Bux. His conduct after the incident, the circumstances in which the dead body was found, the opinions of the doctor and the ballistic expert and lastly the pointation of various places by the appellant after his arrest.
7. There is no direct evidence in the case. At the outset the F. I. R. Lodged by Abdul Hakim suggested the case of suicide, but the S. H.
0. Without examining any prosecution witness, on his own assessment of the ,circumstances formed an opinion after interrogating the appellant that A it was a case of murder and lodged a report on behalf of the State, in which he incorporated the confession of the appellant. This document, on the face of it, is inadmissible as it is hit by section 25 of the Evidence Act. Again, it is noteworthy to mention that the wardat was inspected in the evening in the presence of mashir, Saleh but the second crime empty was not found. However, on the next day, it was discovered by the S. H.
0. Lying three paces away, from where the dead body lay. How could the second crime empty go unnoticed when it was so close to the dead body, is highly suspicious and leaves room for doubt as to the bona fides of such recovery. The mashir however gave the impression that this crime empty was also recovered alongwith the other which was found in the rifle, which feature again reflects on the credibility of the mashir. The suggestion, therefore, that it was planted the next day cannot be without substance.
8. While examining the evidence of Mst. Amina certain contradictions were put to her which, of course, she denied. Those contradictions weaken her evidence to an extent that it is not possible to accept her version. While deposing at the trial, she gave out that at 8 a. m. The appellant came to the house and took the rifle of the deceased saying that he was taking it for killing a dog. She was conformation with her 161 statement, in which she had omitted to mention this fact, but she stated that she had said so. The omission was proved through the evidence of the S. H. O. Again, she stated that after about five minutes she heard two gun reports, whereupon she came to the entrance of the house, from where the whole garden was visible and saw the appellant roaming in the garden. She was again confronted with her 161 statement in which she had omitted to say so, which stands duly proved. Further she also stated that at 11 a.m. She beard the noise of a tractor going into the garden and also the voice of certain persons coming from the garden which, of course, she had omitted to mention and which omission had been duly proved. She also stated that she enquired from Abdul Hakim as to what had happened who told her that the appellant had killed his father. This was again an omission, with which she was confronted and which omission has been duly proved. Again, no question was put to Abdul Hakim whether he had informed her that the appellant had told him that he had killed the deceased. Even otherwise, the statement is inadmissible as being hearsay. Lastly, she was confronted with the statement as to whether she had stated before the police that at about 12 noon she came to know in the village that the deceased had committed suicide which, of course, she denied, but the contradiction was duly proved. This contradiction is significant in the context of the fact that till the morning the case of this prosecution witness was that her husband had committed suicide and that she had no personal knowledge of the facts, to which she has testified. In the context of her anxiety to support the prosecution case, she also stated that Exhs. 27 and 28 were not in the handwriting of the deceased. Whether she was acquainted with his handwriting is also not free from doubt as it is difficult to accept her ipse dixit on this aspect of the case, in the context of the prevarications to which she had indulged. Again, the prosecution has failed to establish that the two applications were in the handwriting of the appellant. It is surprising as to how the two applications can be treated as incriminating evidence against the appellant when they are not in the handwriting of the appellant. The trial Court nonetheless has relied on her evidence to provide corroboration to the confession, the reason being that he was of the opinion that it got support from the conduct of the appellant in pointing out the various places, namely the room from where the rifle was taken out, the production of the pen and the potation of the wardat. In our opinion, this is wholly an erroneous assumption. The trial Court has not appraise& her evidence in the context of her earlier statement, with which she was confronted and which exposed her to be an unreliable witness. As for the potation of the places, such as the room from where the rifle was taken out and the wardat, they were already known and have, therefore, no evidentiary value. The production of the pen also is of no value as it has not been proved that the two applications were written with that pen. The matching of the crime empty with the rifle is also of no incriminating value as the rifle was found at the wardat and there is no evidence that it was the appellant who, after firing the shots, had kept it there.
9. The next piece of evidence is the retracted confession. The appellant was admittedly arrested at 2 a.m. On 9th November 1970 mashirnama, Exh.
16. Mr. Ali Akber, First Class Magistrate, Samara: who recorded the confession, has stated that the remand papers were place() before him when the appellant was produced for the recording of his confession. However, in the letter sent by the police to the Magistrate. His arrest is shown at 2 p.m.
On 9th November 1970, which is palpably false. This was intentionally done to avoid the necessity of taking the statutory remand within 24 hours of his arrest. Again the appellant has, in the confession, given the time of his arrest as 11 a.m. Or 12 noon. We fail to see why he would have stated 11 a.m. Or 12 noon if he was actually arrested at 2 a.m. On 9th November 1970. Therefore, the possibility of some pressure cannot be excluded. There is also no doubt that the appellant was in illegal custody when he was produced for the recording of his confession, which also reflects on the voluntary natl.); e of the confession, particularly in the context of an instance cited above. We have also examined the confession to find out whether it is true. It runs into three pages, in which the appellant has given out that since his father had refused to give him some land he had become greatly disappointed, particularly when he chose Waryam for giving land on lease to him for a period of five years. He stated that be went to Waryam to persuade him not to take the land, upon which Waryam sent a chit to his father through a her! And his father had asked him as to why he had done so, but he denied it and thereupon he told him that he would call Waryam and in case he had told him not to take the land on lease he would beat him. Being afraid of Waryam coming over and telling the deceased about the appellant having said so, he decided to kill his father and on the next day he shot him twice with his rifle killing him on the spot. Waryam was examined by the police, but the prosecution gave him up for two reasons, firstly, that he had been won over and, secondly, that his evidence was "not so very material for the prosecution case". How was it so when his name was mentioned in the confession, we are unable to understand. Be that as it may, he has not been examined and there is no corroboration of that material part of the confession. Again, the appellant stated in the confession that he asked Dhani Bux to call Saleem and to both of them he stated that he had killed the deceased, whereupon Saleem wanted to raise a cry of murder, but he placed his palm on his mouth to silence him. He then went and informed Kamaluddin and Abdul Hakim that his father had committed suicide. Saleem was also given up for the same reason as Waryam. As for Dhani Bux, he did say that he had brought Saleem who was working in his field but then the appellant and Saleem talked with each other and he went to his house. What they talked between themselves has not been stated by Dhani Bux and, therefore, there is no corroboration of his admission of guilt from this witness as well. Even assuming for arguments sake that the confession was voluntary, we do not see how it is corroborated by the circumstantial evidence as has been held by the learned Sessions Judge. Such evidence before it can be relied upon must itself be beyond reasonable doubt so a to lend corroboration, which is not the case here. In this view of the matte there is no assurance about the truthfulness of the confession. Therefore, we are unable to subscribe to the view of the learned Sessions Judge that the prosecution has established its case beyond reasonable doubt against the appellant.
10. As for the case set up earlier that the deceased had committed, suicide there are strong reasons to believe that it was not so. Firstly according to the medical evidence, the shots were fired from a distance of more than six feet as there was no charring on the margins of the wounds.
Secondly, it is difficult to believe that a man committing suicide would fire two shots having regard to the nature and location of the injuries found on the deceased. It is true that the rifle was placed in a position to give an impression that the deceased had committed suicide, but there is no evidence to sustain that it was the appellant who had managed it in that way. The deceased was killed, but who killed him, was the moot question for determination, once the theory of suicide was discarded. In the context of the above determination we have, upon the appraisal of evidence, come to the conclusion that it was not the appellant who had committed the murder of the deceased.
11. In the result, for the foregoing reasons we would give the benefit of doubt to the appellant and while setting aside the conviction and sentence D acquit him. His appeal is accepted. He is on bail and his bail bond stand discharged.