' This revision application is directed against the judgment and order of acquittal of the respondents in a case of murder of one Muhammad Muslim, an S. H. O. Of Town Police, Larkana.
2. The facts of the case in brief are that in 1967 deceased Muhammad Muslim was posted as S. H.
O., Town Police, Larkana under Superintendent of police Mr. Abdur Rab Shaikh. It has been alleged that Mr. Abdur Rab Shaikh suspected the young Sub-Inspector to be carrying on an intrigue with his wife who resided at his official residence at Larkana. Respondent No, 1 Mohkumdin was a Police Constable and a special man of Abdur Rab who had later on lost his job but was working as a butcher in partnership with Haji respondent No, 2 and they had a stall or bucher's shop in the Police Headquarters, Larkana. On 5-10-1967 at about 8-00 p.m. S. P. Abdur Rab took Mohkumdin and Haji respondents in a pick-up from his bungalow and came near the Civil Hospital from where deceased Muhammad Muslim was also taken and the party drove outside Larkana on the path of the Rice Canal. Under the cover of the night the pick-up was stopped and Mohkumdin served the S. P. And the S. H. O. Repeatedly with whisky and water. The S. P. And the deceased then got down from the pick-up and went on-foot for a walk. Then suddenly Muhammad Muslim was attacked from behind and knife injuries were caused to him while S. P. Abdur Rab and Mohkumdin held him tight. The S. P. And Mohkumdin also received some injuries on the hands as a result of it. On the cries of Muhammad Muslim, some persons came from the nearby Nazar village. The dead body of Muhammad Muslim was hurriedly taken inside the vehicle and it was thrown into the waters of the canal after tying it up with one mile stone pillar removed from the road side. The persons who came on the cries found Sabul Machhi near the scene and saw the blood stains, a glass smelling of wine and one empty bottle of black and white whisky. Sabul Machhi was then produced at Larkana Police Station before S. H. O. Ghulam All and the information was recorded in the Station diary. S. H.
O. Farzand Ali was then deputed to make enquiries in this connection. S. H. O. Visited the scene and tracked the wheel marks and the trail of blood to a place on the Dadu Canal Bank. There was 11 or 12 feet deep water but the dead body was recovered which was tied with a piece of ,cotton cloth to a stone. The body was later on identified by applicant Allah Rakhio father of Muhammad Muslim.
The police pick-up in question was missing from the usual garrage and it was recovered from the S. P.'s bungalow by the A. J.-G.; the cushion covers had been removed but there were still blood marks on the pick-up seat and the pick-up appeared to have been washed in the compound of S. P.'s residence. The S. P. Had sustained knife cuts on his hands which had got dressed and the blood-stained cotton, wool etc. Was found from his bath room. Meanwhile S. P. Abdur Rab left Larkana for Karachi where he obtained anticipatory bail before arrest from the High Court on 10-10- 1967. He then stayed in the Mid-way Hotel in the room of one Mr. Rind.
3. The S. H. O. Ghulam Ali had arrested accused Mohkumdin respondent No,
1. On 11-10-1967 Mohkumdin produced the blood-stained shirt, shalwar and knife from his house. He was then produced before Resident Magistrate, Larkana who recorded his judicial confession. There were incised injuries on the hands of Mohkumdin. There were in all 7 incised injuries on his person found by Medical Officer, Civil Hospital, Larkana. Accused Haji was also arrested and blood-stained shirt, shalwar. Banyan, turban and blood-stained butcher's knife were recovered from his house.
Accused Haji also made judicial confession before the S. D. M., Larkana on 46-10-1967. S. P. Abdur Rab came to know at Karachi that he had been implicated in the two judicial confessions by respondents Nos. 1 and 2. He -then found that he had hardly any chance and he shot himself in the room of Mid-way Hotel and committed suicide. At the foot-prints test tracker Muhammad Ramzan picked out naked foot-prints of Mohkumdin which tallied with those found at the scene. Police had also collected the evidence regarding the wheel marks at the scene which coincided with the wheal marks of the pick-up found from the bungalow of Mr. Abdur Rab, Superintendent of Police.
Since the S. P. Was already dead respondents 1 and 2 alone were sent up in this case. They were committed to the Court of Session.
4. Both the respondents were acquitted by the learned Sessions Judge, Larkana Mr. Hamzo Khan Qureshi. The learned Sessions Judge found the judicial confession of Mohkumdin to be exculpatory and induced as a result of police torture since according to entries in the Jail record apart from the incised cuts Mohkumdin had swelling on testicles, swelling of his nipples and swelling of both the feet, knees and hips. So much so that he was not able to walk and this fact as stated by Resident Magistrate, Larkana also that he was in a bad shape when he was produced before him. The learned Sessions Judge also found that Mohkumdin after the recording of confession was kept at Civil Hospital, Larkana in custody of the investigating police for a day before being sent to the judicial lock-up. He also found the confession to be untrue as according to this confession a gunshot injury was fired at the back of the deceased but the medical evidence showed no gunshot injuries on the dead body; that there were as many as 27 incised injuries on the dead body.
5. The learned Sessions Judge also disbelieved the judicial confession of respondent Haji on the ground that it was not recorded in a proper manner and was inconsistent with the other evidence.
Finding the other pieces of circumstantial evidence to be very weak the learned Sessions Judge acquitted both the respondents.
6. Allah. Rakhio father of the deceased who had preferred this revision application against the order of acquittal has since died. Respondent No, 2, X Haji son of Muhammad Yousuf has also died meanwhile. Therefore, there remains only respondent No, 1 Mohkumdin against whom this revision petition has been heard.
7. There are the following pieces of evidence against respondent Mohkumdin
(1) Identification of naked foot-prints at the foot-prints test ;
(2) Judicial confession of Mohkumdin himself ;
(3) Judicial confession of co-accused Haji implicating Mohkumdin ;
(4) Incised knife injuries on Mohkumdin ;
(5) Recovery of blood-stained clothes and knife from the roof of the house of Mohkumdin
(6) Other pieces of circumstantial evidence connecting Mohkumdin such as the allegation that he was the trusted man of S. P. Abdur Rab etc. ' Mr. M. M. Pirzada has pointed out that the murder was committed by the respondents and Abdur Rab, in furtherance of their common intention. The evidence against Abdur Rab should also have been considered as evidence against the co-accused; that Mohkumdin had failed to explain the injuries on his hands which he had sustained on account of his holding deceased Muhammad Muslim when Haji inflicted the blows. That there is also recovery of bloodstained articles and there is ample corroboration of his own confession and that of the co-accused. That the evidence had not, therefore, been appreciated in a fair manner and it had resulted in injustice being caused.
8. Mr. A. F. Memon has on the other hand pointed out on behalf of the respondent Mohkumdin that the scope of revision application against the order of acquittal is very much limited when the State did not find it necessary to prefer an acquittal appeal; that the findings of fact arrived at by the Sessions Judge are not to be interfered with unless there is a substantial error apparent on the fate of the judgment resulting in serious injustice having been caused; that the superior Courts should be reluctant to interfere even though different conclusions could have been reached on the same evidence. The learned Advocate has cited: PLD 1966 SC 424, PLD 1975 Pesh. 38, PLD 1964 Kar. 356 and 1975 P Cr. L J 495 to support his contentions. The learned Advocate has then pointed out that the judicial confession of the respondent was inadmissible as there was clear evidence of police torture; that the confession was also contrary to the other evidence examined by the police; that the Puggi had known the foot-prints of Mohkumdin who was a butcher and had a stall inside the Police Headquarters. The evidence of Puggi was, therefore, of little value as he could easily pick out the footprints of the respondent at the test; that the conclusions-reached by the Sessions Judge were supported by sufficient reasons and there was no illegality apparent on the face of the record to warrant interference by the superior Courts.
9. Mr. Usman Ghani Rashid, Assistant Advocate General on behalf of the State does not support this revision application. He has pointed out that no acquittal appeal was preferred by the State. That the incident took place in the year 1967 and already about 10 years have elapsed. By this time the' prosecution witnesses must have disappeared and it would be a futile attempt to order retrial after laps of 10 years. Mr. Usman Ghani has also pointed out that there does not appear from the record that any serious miscarriage of justice has resulted from any error which could be apparent on the face of the proceedings. That 2 of the 3 alleged culprits are already dead and only respondent Mohkumdin now remains. It would not, therefore, be expedient for the above reasons to direct a retrial against the existing respondent Mohkumdin alone.
10. The murder in this case was not only pre-planned but it was cruet and cold blooded. A young sub-Inspector in the prime of his life was put to death having been mercilessly butchered and as many as 26 incised wounds were caused with the butcher's knife on the face, neck, head, ear, nose, chest and other vital parts of the body. The circumstantial evidence with regard to incised injuries on the person of the respondent, recovery of blood-stained clothes and knife and his connection with the S. P. And even his visit to Karachi to meet the S. P. After the murder night have been evaluated in their proper perspective to see if there was sufficient corroboration on material particulars of the judicial confession of co-accused Haji, implicating respondent Mohkumdin also if the judicial confession of Mohkumdin himself had to be ruled out as inadmissible. It has however been rightly pointed out by the learned Assistant Advocate-General that it would not be expedient in the interest of justice to direct a retrial of the case after a lapse of 10 years, nor would the High Court interfere simply because different conclusions might have been reached on the same evidence. The judgment is on the other hand well-A reasoned and cannot be considered to be perverse nor can it be said that the conclusions reached are erroneous and not in accordance with the recorded facts. Under these circumstances there are hardly any grounds for interference at this stage.
11. The revision application is accordingly dismissed.