' ALI HYDER L-The appellant was tried alongwith four other persons, namely, Muhammad Raman, Bagh Ali, Shahbaz and Wahid Bukhsh, for offences under section 302 read with section 34 and section 394, P. P. C. The last four persons were acquitted, while the appellant was convicted for an offence under section 302, P. P. C. And also for an offense under section 394, P. P. C. On the earlier count, he was given the supreme penalty under the law, subject to confirmation by this. Court. On the latter count, he was given R. I. For five years and a fine of Rs, 1,000, in default whereof, he was to suffer R. I. For six months more. There is a reference by the learned Sessions Judge, Jacobabad, under section 374 of the Criminal Procedure Code, and there is also an appeal preferred by the convict. The reference and the appeal will be disposed of by this composite judgment.
2. It is alleged that Shahnawaz was a student at Jacobadad. His father, by the name of Imam Bukhsh, used to ply a. Tonga. It is alleged that, on the 2nd of October 1972, Imam Bukhsh was slightly indisposed, and Shahnawaz had taken the tonga for plying. He did not return till the midnight, which caused anxiety to his family members. A hectic search was made by Imam Bukhsh along with some other neighbours and the members of the family. It appears that, on 3-10- 1972, a corpse was found lying near Mehr Shah graveyard in Adam Khan village which is at some distance from Jacobabad. P. W. Muhammad Hasan, the Majawar, made a mention of this fact to P.
W. Noor Muhammad. Noor Muhammad had given a ring to A. S. I, MuhammadKhan of the Sadder Police. Station, Jacobabad, and the latter had proceeded to the graveyard, where the facts given to him were ascertained. He prepared a Mashirnama' and also an inquest report, and the dead bod was sent for post-mortem examination, which was kept over for the nex day, that is, 4-1072.
Some enquiries were made by the investigating authorities, but no further clues could be obtained till 26-10.1972, when the horse was secured by the police from the house of P. W. Umed AIL It appears that the horse had been entrusted to the latter by P. W. Abdul Wahid.
3. It is alleged that on 26-11-1972, S. H.
0. Rashid Ahmed had come to the town of Shikerpur, and raised the house of the present appellant.
The appellant is alleged to have produced a dagger from a box which, however, had no traces of blood. All the same, the dagger was secured by the police, for which a 'Mash irnarma' was prepared. It is alleged that the appellant had taken the police party to village Fatehpur, where he had pointed out Bagh Ali. It is not necessary to dilate on this aspect of the matter, as Bagh Ali has been acquitted. Suffice it to say that certain parts of the tongs were produced by him, and he is alleged to have purchased the tonga from the appellant and his companions. Bagh Ali had taken the police party to Larkana to the workshop of Yar Muhammad, from where some other parts were secured. Later on, the other two accused were arrested.
4. On the day following the arrest, the appellant was produced before the Civil Judge and First Class Magistrate. Jacobabad, where he had made a judicial confession. After due investigation, the case came to be challaned in the Court.
3. The appellant in his statement at the Court of Enquiry as well as at the trial denied the various allegations made against him. He maintained that he had been involved in the cue at the instance of some of the prosecution witnesses, who were nursing grudge against him and his family members bemuse of a blood feud. He also retracted the judicial confession, as, according to him, the same had been obtained by police coercion.
6. Admittedly, the murder had gone unwitnessed. The dead body was diseovered by the Msjawar some eighteen hours after the alleged murder, and, for a substantial time thereafter, nobody knew as to who had been done away with. There are two witnesses, namely, Muhammad and Abdul Ghani, who are alleged to have seen the appellant and his three companions hiring the tongs driven by Shahnawaz. Though they had tried to search for Shahnawaz along with Imam Bukhsh, yet still their statements were recorded by the police, for the first time, as late as 7-10-1972. Then, they picked up the appellant and the three accomplices in an identification test. There were only eight dummies along with four culprits, which was totally an Insufficient number for an identification test.
That itself is enough to rule out the evidence thus produced. However, it might be added that this piece of evidence had not been accepted in regard to all the culprits, and I think very properly.
7. Nothing will turn either on the appellant taking out the box and putting the dagger before the police party, at it is nobody's case that there were any blood stains thereon. Nobody has attempted to say that much, and the dagger also was never sent to the chemical examines. Even Khuda Bukhsh, the mail*, appears to be sa ubiquitous sort of a witness going on a conducted tour from one district to another. He was brought au the way om Jacobabad, though the police party had to raid the house of the ppellant in a big town, like Shikarpur.
8. AU that is left in the case is the judicial confession. Mr. Muhammad ayat Jun*, learned counsel for the appellant, contended that it was bteined by inducement, as would be evidenced by the last sentence of the nfession, in which a hope appears to have been expressed for a lighter tence.
There is no merit in this contention, as there is not the remotest ace that it was obtained from him as a result of any inducement, or threat. However, it has to be seen as to whether the said judicial confession is supported from some other quartet in any of the material particulars. II mentions that the injury on the abdomen of Shabnawaz had been given by accused Shabbaz, and that the strangulation was looked after by all of them. The fact, however, remains that the rest of the culprits have been given the benefit of doubt and have been acquitted. It also mentions that the dagger had been produced by him, but it Is anybody's guess why Shahbaz had chosen to make a present of it to the appellant, and why he had preserved it in the box, only to offer it to the police at the earliest opportunity. Even the way his house was raided after a few months, when there was nothing to show that any suspicion had been raised about him, remains rather a mystery. No detail has been furnished that way by the Investigating Officer. The fact also remains that, though the culprits had taken away the tonga, yet they never bothered to take care of the horse, which remained standing in the rice canal. The horse would have been as valuable as the tongs itself, if not more. Any way, it was a booty not to be left behind. Strangely enough, that was found in the possession of P. W. Umed Ali, and the matter was not probed by the police, and he was employed as only a witness. This being the situation, coupled with the fact, that the persons implicated by the appellant have all been acquitted, will react on the entire case in the absence of any confirmatory circumstances. As no corroborative evidence from any quarter is forthcoming the appellant also will be entitled to the benefit of doubt.
9. In the result, the conviction and sentence awarded to the appellant on both the counts is set aside, and the reference, In regard to the ire under section 3 2, P. P. C., is also not accepted. The appeal is allowed. Appellant is in custody and will be released forthwith unless wanted in oo Lion with some other case.
ZAKAULLAH LOMB, J.-I agree.