P L D 1965 (W (PLP)

FARUQUI, J.‑--Madad Ali son of Jiyo Hingoro has been convicted by the Additional Sessions Judge, Tharparkar, sitting at Sanghar, under section 302, P. P. C. for having caused the death of his aunt Mst. Nooran and her daughter Mst. Janul by shooting them with a country‑made pistol. He was also found guilty of an offence under section 19‑E of the Arms Act but no sentence in respect thereof was recorded. Under section 302 he has been awarded the sentence of transportation for life.

2. The prosecution case was that the accused Madad Ali who was residing along with Wali Muhammad, P. W. 10, in a house near the fields which they were cultivating, in a solitary place, situated in deh Liyari, taluka Sinjhoro, district Sanghar, apprehended danger to his women‑folk from one Haji Abdullah between whom and Madad Ali's maternal uncle Pir Dino there were serious disputes and litigation about matrimonial matters and Haji Abdullah and Lutifullah had threatened Madad Ali that they would take away their women‑folk. Deceased Mst. Nooran was the step‑mother of Wali Muhammad and aunt of accused Madad Ali. Deceased Mst. Janul was the daughter of Mst. Nooran and was married to Muhammad Usman Hingoro who resided 6 miles away from the place where Madad Ali lived. In order to avoid the danger to himself and his women‑folk Madad Ali had suggested to Nooran and Wali Muhammad that they should migrate to the village of his uncle Haji Pir Dino situated a few miles away from there. They were, however, not willing to shift until the standing crops had been harvested. Accused Madad Ali was so conscious of danger from the said Haji Abdullah that he went to Muhammad Usman Hingoro, the husband of Janul, and told him to come with him with his wife and persuaded Mst. Nooran to accept his proposal and shift from the place of danger. Muhammad Usman, who has been examined in this case as P. W. 3, stated that Madad Ali stayed with him for that night and next day he himself did not go but his wife Mst. Janul accompanied Madad Ali to his place. Mst. Janul stayed with them for two days. On the day of the occurrence, which happened on 18th April 1961, Madad Ali again persisted with Mst. Nooran to shift from that place. Mst. Nooran thereupon abused him and called him a pimp or a coward‑and Mst. Janul also joined her mother in abusing Madad Ali and told him that the shifting will not be done. Wali Muhammad had gone that morning to Pir Dino village where Pit Dino and Karim Dino, the maternal uncles of accused Madad Ali lived with the idea of getting them to persuade Madad Ali not to insist upon shifting. Having been abused by Nooran and Janul, Madad Ali got angry and went and sat at some distance away from the house at the 'Khara' where his grass was stored. While he was sitting there he saw Wali Muhammad accompanied by Abdullah and Obhayo coming towards him. Abdullah is the cousin of accused's father and Obhayo is the brother of accused's wife and also his maternal uncles' son. These persons challenged Madad Ali from a distance and told him that they were going to tie him down suggesting thereby that he would not be allowed to shift. Madad Ali then ran towards his house and picked out a pistol which he had kept concealed under the hedge and also a few cartridges. He ran into the house from inside the fence and as Mst. Nooran faced him he shot her in the face. Mst. Janul apprehending danger to herself ran out. He pursued her. Abdullah and others called out not to kill but he' warned them not to come near him. He overtook Janul at the watercourse and fired at her.with his pistol. He then came back to his house and fired another shot at Nooran which hit her at her side. He then got on his mare and rode away, firing shots in the air. A report of this incident was made by Karim Dino, the maternal uncle of the accused to whom information had been given. of the incident by Wali Muhammad and who had come on the scene to see what had happened. This report was made at 7 p. m. the same day at Jhole police out‑post which was 5 miles away. The report was recorded by Head Constable Darvesh, P. W. 15, in a blank form as usual and this was sent to the police station Sinjhoro for being recorded in the F. I. R. register. Head Constable Darvesh then accompanied Karim Dino to the scene of offence where he reached the same night. There he recorded the statement of Wali Muhammad, Abdullah and Obhayo and next morning he inspected the vardat in the presence of Bachal, P. W. 5, and Matal, P: W.

6. He prepared the inquest report of the dead bodies of Mst. Nooran and Janul, recovered two empty 12‑bore cartridges and some blood‑stained earth from the scene of the offence. He noticed the foot‑prints of a person in slippers following the naked foot‑prints of a woman. These went up to the watercourse where Janul had been shot. These foot‑prints were shown to the foot‑prints tracker Muhammad Paggi, P. W.

7. He also noticed foot‑prints of three persons about 30 paces away from the scene. There were also hoof‑marks of a mare which were tracked. The mashirnama of the vardat prepared by the Head Constable is Exh.

15. The Medical Officer, Sinjhoro was sent for at the vardat where he conducted the post‑mortem examination on the dead bodies. He then handed over the papers to the Station House Officer, Sinjhoro. This was Ahmad Ali P. W.

16. Ahmad Ali had received the report from the out post at midnight which had been sent to him by Head Constable Darvesh and which bore the signature of the maker of the report, namely Karim Dino. Next morning he came to the scene and went after the accused by tracking the hoof‑marks of his mare. These hoof‑marks were lost on Tando Adam‑Tando Allahyar metalled road. He then returned to the vardat and verified the investigation of the Head Constable Darvesh. He made efforts to secure the accused but did not succeed and sought the help of Inayat, Gul and others in this respect. It was on 24th April 1961 that the accused was produced at the police station Sinjhoro by Inayat. A mashirnama of his arrest was prepared. It is Exh.

40. He then interrogated the accused who volunteered to produce the pistol. A taxi was sent for and the accused led him on Tando Allahyar road to a distance of 37 miles where he got the taxi stopped and got down from it. He then went inside the ditch by the side of the road in which there was knee deep water. Froth this ditch he brought out a country‑made pistol of 12‑bore which was in a serviceable condition. This was seized as per mashirnama Exh.

23. This bore the signature of the taxi driver Ghaffar Beg and another mashir Inayat. The next morning at 9 a. m. the accused was produced before the Sub‑Judge and First Class Magistrate, Sanghar for the recording of his confession and which was accordingly done. The country‑made pistol and the two empty cartridges which had been recovered at the vardat had all been put into a sealed parcel and were sent by the S. H. O Ahmad Ali through Head Constable Saudagar Khan to be taken to Lahore t6 the fire‑arm expert. This Head Constable instead of taking these articles to the firearm expert at Lahore proceeded further to Pindi where he had a private case and according to him as he was returning to Lahore from Pindi his trunk was stolen and this contained the pistol and the empty cartridges. A departmental inquiry was held against this constable for losing the articles of the crime. He was produced in the Court and was cross‑examined by the‑A. P. P. who suggested that he had been bribed for the doing away of these crime articles. It may be added that Head Constable Darvesh had got the statement of the three persons, namely Wali Muhammad, Abdullah and Obhayo who were to figure as eye‑witnesses in the case, recorded under section 164, Cr. P. C. by the Sub‑Judge and Magistrate First Class, Sanghar on 24‑4‑61 and in this they had deposed to the prosecution case as stated above.

3. At the trial and even in the Court of the committing Magistrate all the three eye‑witnesses, namely Wali Muhammad, Abdullah and Obhayo, went back upon their statement which they had made before the Magistrate under section 164, Cr. P. C. and they were declared hostile and cross‑examined. Their previous statement recorded under section 164 was put to them but they said that this had been made under police pressure. Even Karim Dino went back upon the fact that he had made the first information report at the police out post at Jhole which had been recorded by the Head Constable Darvesh. He, however, admitted the signature on that report. Considering that all these three witnesses were closely related to the accused the fact that they did not incriminate him at the trial is understandable. The case against the accused, therefore, at the trial rested on his own confession which, however, was also retracted and the recovery from him of the pistol from the ditch where it was lying under water. In addition; there was the evidence of Muhammad Paggi, the tracker who had identified his foot‑prints and the evidence of two witnesses Bachal, P. W. 5, and Matal, P. W. 6 who had reached the scene soon after hearing the firing of the shots and who had been told by Abdullah, Obhayo and Wali Muhammad that the accused had shot both the women. This evidence was taken into consideration by the learned trial Judge as being relevant under section 6 of the Evidence Act. He also took into consideration the circumstance that the accused was absconding and had not been found until the 24th of April, that is 6 days after the incident. The evidence of motive came from Muhammad Usman, P. W. 3, the husband of Mst. Janul, reference to whose evidence has already been made in this judgment earlier.

4. Dr. Anwarul Haq who had performed the post‑mortem at the vardat on the two dead bodies on 19‑4‑1961 had found the following external injury on the person of Mst. Janul: "(1) A circular penetrating wound 3 " in diameter on the epigastric region a little to the left of the central line. Edges of the wound were inverted with slight blackening of the skin." On internal examination he found the pleura of the left lung, the base of the right lung, the heart and abdominal wall damaged and ruptured as a result of the injury No.

1. In Iris opinion all the injuries had been caused as a result of a single gunshot fired from a close range. On Mst. Nooran he found the following external injuries :‑ "(1) Four circular lacerated penetrating wounds within a radius of " on the media side of the left scapular region, each being '' in diameter. (2) A circular perforating wound " in diameter on the left anterior exillary fold lower coastal region. (3) One circular perforating wound '' in diameter on the centre of the forehead." All these injuries in his opinion had been caused by discharge from a fire‑arm such as a gun and were ante‑mortem. On internal examination he found the following injuries :‑ "(1) Frontal bone perforated. (2) Base of the skull fractured. (3) Brain matter damaged and congested. (4) 5th and 6th left ribs towards vertibral end and left scapula fractured. (5) 9th and 10th left ribs towards external end fractured. (6) Pleurae ruptured. (7) Both the lungs ruptured in several places. (8) Heart and peri‑cardium ruptured in 2 places. (9) Arch of the aorta ruptured. (10) Stomach perforated at the fundus and contained about 6 oz. of semi‑digested food material. (11) Spleen was ruptured. A pellet was recovered from the abdomen, which I produce." In the opinion of the doctor the death of these women was caused as a result of the injuries caused by the gun‑fire and they were sufficient in the ordinary course of nature to cause death. In his opinion, death of both these women had occurred about 17‑18 hours before the post‑mortem examination. These deaths must have taken place immediately on receiving these

5. The accused in his statement denied all the circumstances which were put to him and which appeared against him. He said that he was not present at his house at the time of the incident as he had gone to Misri Hingoro on the preceding day. Asked whether he wanted to shift from the house he said before the committal Court that this was false but in the Sessions Court he said that Wali Muhammad and Mst. Nooran had themselves suggested that they should all migrate as Abdullah was threatening them. Asked as to whether he had gone to Muhammad Usman to accompany him to persuade Wali Muhammad to shift in order to avoid danger he said that this was false and Muhammad Usman himself had left Mst. Janul at his house. He denied having produced a pistol from the ditch and as to his confession he said that he had made it but it was false. In the committal Court he had said that the police had called and dishonoured his women folk and hence he had made the confession but in the Court of Session he merely stated that his wife and sister had been produced before the D. S. P. Shahdadpur and he was told that the witnesses bad implicated him in their 164 statement and for that reason he had made the confession which, however, was false. He also added that he had been detained by the police for four days. With regard to the evidence of P. W. Matal, Bachal and Muhammad Usman he said that the first two had enmity with him and the third, namely Usman, was on the side of Haji Abdullah. When asked in the Sessions Court if he had anything else to say he said that Mst. Nooran was his aunt and Mst. Janul was his cousin and they may have been killed by Haji Abdullah and his sons. He produced documents to show disputes between Haji Abdullah and his maternal uncle Pir Dino and also the order of the Magistrate discharging him in the case under section 19‑F of the Arms Act.

6. Since the confession remained to be the main piece of evidence in this case it may be reproduced in extenso. The portion from which the narration begins reads as follows:‑-- "My maternal uncle Pir Dino and Haji Abdullah Hingoro are on terms of enmity and they have filed cafes against each other. Haji Abdullah and Lutifullah had threatened us that they would take away our women‑folk. My cousin Janul was married to Usman who resided at Usif Hingoro village. My aunt Nooran used to reside with me and my cousin Wali in Deh Liyari in my house. About ten days back I went to Usman and asked him that he should prevail upon aunt Nooran to shift from that house and settle somewhere else as Haji Abdullah had given us threats that he would take away our women‑folk. Usman replied that he was not coming and that I could take Janul with myself. I then brought Janul to Liyari and told her that she should prevail upon her mother Nooran to shift from the place. Janul had stayed with us for two nights. Last Tuesday about 8 days ago at 8 or 10 a.m. I asked Mst. Nooran to shift from that place. Thereupon she abused me calling me a pimp and told that we may shift. Janul also joined her mother in abusing me and they told me that they would not shift from there. Wali my cousin had gone that morning to Pir Dino village. When Nooran and Janul abused me I got excited and went out and sat at the `Khara'. While I was sitting there I found Abdullah, Obhayo, Wali and Karim Dino coming to my side. They challenged me from a distance that they would tie down myself. I then started running towards my house and they followed me. About 2J years ago I had purchased a pistol from Pathans and it was lying concealed under the hedge along with 5 cartridges. As I ran into the house, I took out the pistol and cartridges from inside the fence. At that time Mst. Nooran was standing opposite me. I‑loaded the pistol with a cartridge and fired at her. It struck her on the face. On seeing this Mst. Janul ran out and I pursued her. I found Abdullah, Wali, Obhayo and Karim Dino standing outside their houses, at the number. They called out to me not to kill. I challenged them not to approach me. Thereupon they receded. I reached Janul at the watercourse arid threw her down in the water and chocked her and then fired the pistol at her which struck her at nipple. Then I went back to my house and saw Nooran lying on a cot. I fired another shot from my pistol at her which hit at her side. I then fired two shots in the air, at my house and then picking the saddlery of my mare I went to the Khara where the mare was standing tethered. I rode away on it on the kutcha road leading from Jhol to Tando Adam. I crossed Dalora culvert and went beyond Tando Adam and stayed at night in the jungle. At midnight I woke up and again took to pucca road of Tando Allahyar. I then threw away the pistol in a ditch containing water by the side of the road, near Suigas at middle of Tando Adam and Tando Allahyar. I then took Tando Allahyar road by foot. I tried to stop the bus by waving my hand but it did not stop. I then got into a donkey cart that was going to Tando Allahyar on payment of Re. 1 and reached Tando Allahyar. From there I boarded in a bus in the even ing and went to Mirpurkhas. I stayed the night in a hotel and next day at about 2‑30 p.m. I boarded in a bus bound for Sanghar. I got down at Ban. I then hid myself into the jungle and passed my night there. I stayed for second night in the jungle. I then thought of surrendering myself at Sinjhoro police station. So I went past by the Khara at Pir Dino village. Gul and Karim Dino saw me passing from there. They called me and came to my side. They also called out Inayat from his otak. They then told me that they would also accompany me to Thana. Then all of us reached at Sinjhoro police station at 10 or 11 p.m. I was produced before the police. In the morning the S. I. sent for me and enquired the facts from me. I told the S. I. about the place where the pistol was lying hidden. That day I took the Sub‑Inspector, Pir Dino, Sadik and Inayat and other one or two men in a motor to the ditch. I took out the pistol from inside the water into the ditch and handed it over to the S. I. We then returned to the Thana. I had abandoned the mare at night time in the jungle at a distance of about 5/6 miles away from Tando Adam. Today in the morning I have been produced by the police in the Court for having my statement recorded. I have nothing to say any more." This confession had been recorded by Mr. Ghulam Hussain who, at the time of recording it, was a Sub‑Judge and First Class Magistrate at Sanghar. He was examined as P. W. 2 in this case. He stated that on 25‑4‑64 the S. H. O. Ahmad Ali produced the accused Madad Ali for recording his confession. He got the hand‑cuffs of the accused removed and directed the police to leave the premises. He explained to the accused that he was the Frist Class Magistrate and that he was not bound to make his confession and if he did so it could be used against him. He also told him that he would not be sent back to the police custody. The accused did not complain to him of any maltreatment and he had no visible marks of violence. The accused had stated to him that he had presented himself at Sinjhoro police station at 11. p. m. on 23rd April 1961 and he had remained at the police station for two nights and the intervening day. He then gave him time for reflection from 9 till 10‑30 a.m. He again called him and gave him the necessary warning. During all this time the accused was in his chamber and the police had no access to him. He then referred to the various questions which he put to the accused and the reply of which was recorded by him and which are contained above the narration of the facts as reproduced above. He further stated that he was satisfied that the accused was making the confession voluntarily and not as a result of any inducement or threat. After recording his statement he read it over to him word by word in Sindhi and took his thumb‑impression on it. He then appended his own certificate. to the confession and remanded the accused to judicial custody. He further stated that from the nature of the confession recorded and other reasons mentioned by him he believed the confession to be true and voluntary. There was no cross‑examination of this witness. Only one question was put namely whether he had seen the Sub Inspector standing outside the door of his chamber, to which he answered in the negative. Amongst the other questions which the Magistrate had asked the accused and the answers to which are recorded in the confessional statement, Exh. 6, there was. a question as to the length of time during which and the places where he had been in the custody of the police. To this he had replied as follows : ‑‑ "I was arrested at 11 p.m. yesterday night at police station Sinjhoro and remained there at Thana. Again yesterday at 1 O'clock I took the police to produce the revolver and led them at the place in between Tando Adam and Tando Allahyar and came back to Thana in the evening. I stayed the night at Thana and today morning I am brought to Sanghar by the police and produced in the Court,"

7. From the evidence of the Magistrate and from the questions and answers of the accused which were recorded by him it would appear that the Magistrate had recorded the confession with considerable care and had taken all possible caution as required in such a situation. In our opinion, the Magistrate had performed his duty conscientiously and with an admirable sense of responsibility. The long narration of the accused which has been reproduced above gives a wealth of detail and contains reference to a large number of facts which could only be within his own knowledge and we are unable to accept the explanation of the accused that this was made under police pressure. He has given a full account of his movement after he had left the place of the incident until he was produced before the police 5 days thereafter. All this could not have been pure imagination on his part and it would not be. necessary for the police to tutor him about all these details. They would not have trusted him with such a long narration if they were getting him to make a confession under pressure. His statement about having gone to Usman and brought with him his wife Janul to persuade Nooran to shift is fully borne out by the evidence of Usman. We have no reason whatever to disbelieve him. Consider ing that Usman was also closely related to the accused even though he might have given a go‑bye to this story but he did not do so presumably because he must have felt the loss of his wife who was killed for no fault of hers and who had been taken by the accused himself to do something which he was anxious to be done. His further statement that Wali Muhammad, his cousin, had gone that morning to Pir Dino village is supported by the evidence of Bachal and Matal who are completely disinterested witnesses who found Abdullah and Obhayo at the scene. They must have been brought by Wali Muhammad. They did not belong to that village and Wali Muhammad must have brought them so as to persuade Madad Ali not to insist upon shifting from that village. The further statement in the confes sion that he had pursued Mst. Janul up to the watercourse is corroborated by the finding of the footprints and the evidence of Muhammad Paggi, the tracker who identified the footprints of the man as that of Madad Ali. His explanation as to what happened to him during the intervening 5 days and the places where he had gone finds support from the fact that he was not found during these 5 days by the police. His further statement that he had thrown his pistol in the ditch by the road near the Suigas is conclusively established by the recovery of the pistol from that ditch by him at a place 37 miles away from the police station.

8. After taking every circumstance into consideration we have felt satisfied that this confession is both voluntary and true. We reject the suggestion that this confession was made as a result of threat to the honour of the women‑folk of the accused by the police. The accused though he had made such a statement in the committal Court yet before the Court of Sessions he merely stated that his women had been produced before the D. S. P Shahdadpur. The Investigating Officer Ahmad Ali had himself stated that the D. S. P., Shahdadpur had sent for Mst. Hoor and Mst. Khairi for making inquiry at Shahdadpur. Surely, if the investigating officer had used these women for the purpose of bringing pressure on the accused threatening that they would be dishonoured if he did not make a confession it would neither be necessary nor expedient for him to send these women to Shahdadpur before the D. S. P. It must be remembered that the accused was not being found for five days and the police including the D. S. P. who was associated with this inquiry would be interested in inquiring from every relative of the accused as to his possible whereabouts. We are further of the opinion that the police was not interested in the false accusation of Madad Ali as having been responsible for killing these two women. If this was so it would be extremely strange that they should choose the three eye‑witnesses, all of whom were closely related to the accused. It would also be strange for them to choose Karim Dino, the mother's brother of the accused as a person to be shown as the maker of the first information report. When false accusation is made the police or the people who are interested in foisting a false accusation find witnesses of their own or those who have a reason to depose against the accused and who can always be relied upon to adhere to the prosecution case. Nothing of the kind happened here. On the contrary, as has been shown, all the three eye‑witnesses who were shown as such were intimately related to the accused. The two other witnesses, namely, Bachal and Matal, had a very small role, namely, that they came on the scene after hearing the shot and they were merely told by the by‑standers that the accused had committed the crime. For all these reasons we reject the suggestion that the confession was obtained by coercion.

9. On the question of the recovery of the pistol there is the evidence of the Sub‑Inspector Ahmad Ali and of Ghaffar Beg the taxi driver who was one of the mashirs and who had driven the party including the accused to the place where from the ditch the accused is said to have brought out the country‑made pistol. Ahmad Ali stated that the accused had offered to produce the country‑made pistol whereupon he sent for a taxi and accompanied him in it along with the mashirs. He was then driven to a distance of about 37 miles on Tando Allahyar Road when the taxi was stopped at the instance of the accused by the side of the ditch. The accused then got into the ditch and brought out the‑country‑made pistol of 12‑bore. This evidence was supported by the taxi driver Ghaffar Beg in all respects except the actual taking out of the pistol about which he said that as he was standing by the side of the taxi he did not see the actual taking out of the pistol by the accused from the ditch. The mashirnama of this recovery is Exh. 33. 'The question, however was raised whether the fact of this recovery could be taken into consideration against the accused in spite of the fact that in a separate trial for an offence under section 19‑F of the Arms Act he was discharged by the Sub‑Judge and First Class Magistrate by his order dated 28th August 1961. This order was produced by the accused while he was giving his statement under section 342, Cr. P. C. It is marked Exh.

45. In his Court apart from Ghaffar Beg, the taxi driver, two other mashirs namely Inayat and Gul who are said to have produced the accused before the Sub Inspector Ahmad Ali and bad acted as mashirs of the recovery of this pistol, were also examined. Their evidence was not in accord ance with the mashirnama to which they had appended their signa tures. The learned Magistrate, therefore, observed that in view of the evidence of the three mashirs who had "clearly said good‑bye to the prosecution case the evidence of S. H. O. would be of no help and even if the S. H. O. may be examined, he would not be able to improve the health of the prosecution case". In this view of the matter he discharged the accused without examining the S. H. O. Ahmad Ali. It was urged, before us by Mr. Junejo, the learned counsel for the appellant, that this order of discharge bars not only the retrial of the accused for an offence under section 19‑F, Arms Act but the same facts cannot be used against the accused in support of the charge of murder against him. Reliance was placed upon a judgment of the Privy Council in the case of Sambasivan v. Public Prosecutor, Federation of Malaya (1950 A C 458). In that case the accused was prosecuted on two charges under the Emergency Regulations of 1948 which then applied to the Federa tion of Malaya. The first charge was under sub‑regulation 1(a) of Regulation 4 for carrying a fire‑arm and the second under sub‑regulation 1 (b) for being in possession of ammunition. The accused was tried with the aid of assessors and on the charges relating to the possession of ammunition he was found not guilty and acquitted. On the other charge with regard to the carrying of a fire‑arm the Court disagreed with the verdict of the assessors and upon a retrial the accused was found guilty and convicted. The sentence was death. The matter eventually went to the Privy Council. Lord Mac Dermott who gave the reasons for the judgment observed as follows:‑-- "The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'Res judicate pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at' the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it‑was not conclusive of his innocence on the fire‑arm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted with other."

10. These observations were relied upon in a case by the Supreme Court of India in the case of Pritam Singh v. The State of Punjab (P L D 1957 S C (Ind.) 1). In that case accused Pritam Singh before being tried on a charge of murder was tried and acquitted upon a charge under section 19‑F of the Arms Act with regard to his being armed with a revolver which was alleged to have been used in the attack. The Sessions Judge disregarded the order of acquittal holding that it was not relevant under the Evidence Act. The High Court, however, relying upon the dictum of Lord Mac Dermott referred to above did not use the alleged fact of the possession of the revolver by Pritam Singh against him. When the matter came to the Supreme Court of India they agreed with the view of the High Court and observed as follows :‑ "The acquittal of Pritam Singh Lohara of that charge was tantamount to a finding that the prosecution had failed to establish the possession of the revolver Exh. P‑56 by him. The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence with which he had been charged. That fact was found against the prosecution and having regard to the observations of Lord Mac Dermott quoted above could not be proved against Pritam Singh Lohara in any further proceedings between the Crown and him. We are of the opinion that the High Court was right in rejecting the evidence regarding the recovery of Exh. P‑56 against Pritam Singh Lohara and the evidence against him would have to be considered regardless of the alleged recovery of Exh. P‑56 at his instance."

11. We have given our most careful consideration to the question whether we should exclude from consideration altogether the evidence of the recovery of the pistol by the accused on the charge of murder in the present case and have reached the con clusion that we should not. To the extent that an acquittal on another charge reduces the weight of that evidence upon which that charge was based no exception need be taken. But to say A that, that evidence must necessarily be excluded from consideration in all other proceedings and in connection with another charge is, in our humble opinion, too wide a proposition. The law as to the effect of the previous acquittal, or conviction which applies to our Courts is contained in section 403 of the Criminal Procedure Code, the first subsection of which reads as follows:‑-- " 403 (1).‑A person who had once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237." It would be noticed that the bar of trial on the same facts for any 18 other offence is limited to offences for which a different charge might have been made under section 236 or for which a conviction might have been recorded under section 237 of the Code. Section 236 deals with the situation where it is doubtful as to what offence has been committed in respect of a single act or series of acts. In such a situation the accused may be charged with having committed all or any of such offences constituted by the facts which could be proved. Section 237 empowers the Court in the case mentioned in section 236 to convict a person of the offence which he is shown to have committed although he was not charged with it. Now, in the present case it‑‑cannot be said that on the facts constituting an offence under section 19‑F of the Arms Act of which the appellant was discharged, a charge of the offence of murder could have been made. It was held by a Bench of the Patna High. Court (Shearer and Reuben, JJ.) A I R 1944 Pat. 247 that‑- "Whether having been prosecuted once on a certain set of facts, a. man can be prosecuted again depends entirely on whether, at the earlier trial, he was in jeopardy of being C convicted of the offence, for which he is tried or sought to be tried at the later trial. If he was not, the subsequent trial may proceed, and any evidence admissible in law to support the charge may be led, even if the identical evidence has been led at the earlier trial." The Calcutta High Court in a Full Bench case A I R 1939 Cal. 65 observed:‑-- "The principles underlying the English Common law pleas of autrefois convict and autrefois acquit have been embodied so far as this country is concerned within the limits of the language of section 403 itself, and effect must be given to the clear and precise words of the section. The language of the section cannot be stretched nor the principles extended so as to give an accused the benefit of the spirit underlying the provisions of that section as it would be bewildering and might result in great injustice to the community at large."

12. The view that we have taken for not excluding from consideration the evidence of the recovery of the pistol by the appellant is fully supported by an earlier judgment of the Privy Council in the case of Malak Khan v. Emperor (A I R 1946 P C 16) in which an appeal was taken from a decision of a Division Bench of the Lahore High Court. In this case six persons had been tried by the Sessions Judge, Jhelum upon a charge of murder under section 302/149, Penal Code and of. causing grievous hurt under section 325/149, Penal Code. Two out of these, namely, Malak Khan and Umer Hayat, had also been charged of an offence of robbery under section 392, Penal Code. The evidence in this respect was that these two persons had taken away from the person of the murdered man a black purse containing money and a list and a gold ring. The Sessions Judge while acquitting these two appellants of the charge under section 392 held :‑ "The case under section 392, Penal Code does not appear to me to be established and I acquit all the accused of that Charge." (In fact only two had been charged with this offence). Upon the other charges he convicted all the six accused including those two who had been charged under section

392. All these six persons appealed to the High Court of Judicature at Lahore and their appeals were heard by a Bench consisting of Teja Singh and Bhandari, JJ. The learned Judges took the view that the oral evidence in the case was not satisfactory and that it was highly unsafe to act upon it unless it was corroborated by any other evidence of unmistakable character or by circumstances, the correctness of which could not be denied. Such a corroborative evidence was found to exist only in the case of Malak Khan and which consisted of the recovery from him of the alleged stolen articles referred to above from his court‑yard from underneath a few stones. Making use of this corroborative evidence the learned Judges upheld the conviction of Malak Khan alone but allowed the appeal of the remaining five convicted persons, in whose case the oral evidence did not find support from this corroborative circumstance. Malak Khan appealed to the Privy Council by special leave and the main ground urged before their Lordships was that the Sessions Judge having acquitted the appellant of robbery he was not guilty of that offence no appeal had been taken against that acquittal and, therefore, no Court was entitled to take into consideration the allegation upon which the accusation of robbery was founded even as a corroborative evidence in another case. In repelling this contention their Lordships of the Privy Council held as follows :‑ "Their Lordships cannot accept this contention. The learned Sessions Judge did‑not in fact find the accusation baseless; he only found the crime not proved. But even if he had dis believed the whole story of the recovery of the stolen property from the appellant, his finding would not prevent the High Court from weighing its value and if they accepted its substantial truth from taking it into consideration in determin ing whether another crime had been committed or not. The acquittal no doubt would have entitled the accused man to plead autrefois acquit if again charged with the same crime, but it would not prevent a civil action being brought against him for the return of the things stolen or for their value upon the same evidence. It could not, in their Lordships' opinion be objected to as evidence in another case, criminal or civil, though no doubt its weight would be diminished. Before the Sessions Judge it was given for two purposes‑‑(1) as corroboration of the testimony given in the charge of murder and (2) as direct evidence of robbery. Before the High Court its use for the first purpose was in no way precluded even though no appeal was taken against the dismissal of the charge of robbery. In such circumstances to appeal from the acquittal would be a mere idle form when the question at issue was whether the accused man was guilty of murder or not." We may respectfully point out that the attention of their Lordships of the Privy Council in the case front Malaya and which has been referred to above was not drawn to this decision in Malak Khan's case. For all the reasons given we hold that the evidence of the recovery of pistol by the appellant in the present case should not be excluded from consideration against him on the charge from murder and for the purposes of corroborating his confession.

13. We may also point out that the appellant had not been acquitted by the Magistrate upon the charge under section 19‑F of the Arms Act. He was merely discharged by him and that order of discharge was not after the recording of all the evidence in the case. The learned Magistrate did not have before him the evidence of the Sub‑Inspector who in the present trial deposed to the fact of the recovery of the pistol. He also did not have before him the confession of the accused as we have in the case before us. We are aware of the judgment of our own Supreme Court in the case of Abul Hossain Saha v. Suwalal Agarwala (P L D 1962 S C 242) in which it was held that an order of discharge which is passed on the merits although it does not in law constitute a legal bar will practically have the same effect as an order of acquittal. It must, however, be noted that their Lordships were considering a case in which the proceedings on a complaint had been revived even though an order of discharge had earlier been made and that order had not been set aside in revision. That case is, therefore, clearly distinguishable.

14. However even if we had excluded the evidence of recovery for the purposes of corroboration of the confession, we would still hold that having regard to the nature of the confession itself and the internal evidence of truth in this document we should accept this confession as being true and ‑voluntary. We have already dealt with the various circumstances which go to corroborate the truth of the statement in this confession. The question as to the value of the confession as against the maker himself, whether retracted or not, was considered by the Supreme Court recently in the case of State v. Minhun (P L D 1964 S C 813). The relevant passage appears at page 822 and may be conveniently reproduced :‑ "As for the confessions, the High Court, it appears was duly conscious of the fact that retracted confessions, whether judicial or extra‑judicial, could legally betaken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now E well settled that as against the maker himself his confession, judicial or extra judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law. As observed even by Munir, C. J. in his commentary on the law of Evidence at page 168, (Vol. I) it is a settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true." We are fully conscious of the rule of prudence which has been observed in dealing with the evidence of confession. In the present case, having regard to all its circumstances we are satisfied that this confession cannot but be true. Corroboration for this confession besides the evidence of the recovery of the pistol is also found in the evidence of Bachal P. W. 5 and Matal P. W.

6. It was urged that Bachal had not been examined in the committal Court but it must be noted that he was shown as a reserved witness in the charge‑sheet and he was present when the police constable came on the scene and was a mashir to the mashirnama of the scene of the offence. Both Bachal and Matal are dis interested witnesses and we believe them when they say that when they came to the scene of the offence after hearing the shots they found Wali Muhammad, Abdullah and Obhayo who were saying that the accused had shot these women and had driven away on his mare. We believe these witnesses notwithstanding the fact that the three persons named by them and who were shown as eye‑witnesses when examined in Court went back upon their previous statement and denied to have said what is attributed to them by Bachal and Matal. We also take into consideration the circumstance that the accused who was living at the place of the incident was not found when the Head Constable came to the scene and was not traced for 5 days. He said that he was not present on the scene on the day of the occurrence because he had gone the previous day to 'meet one Misri Hingoro. There is no evidence to support this fact and we do not accept this explanation as true. Sub‑Inspector Ahmad Ali has stated that he tried to trace the accused but could not do so until he was produced by Inayat and Gul on the night between 23rd and 24th April. Inayat has denied this fact but we do not believe this denial to be true. The accused said that he was kept by the police for four days before he was presented for making his confession before the Magistrate. Not even a suggestion to this effect was made in the cross‑examination of Ahmad Ali and when the accused appeared before the Sub‑Judge and Magistrate First Class he gave a full detail of his whereabouts for the intervening days and stated that he had been produced before the Sub Inspector at night on 23rd April at about 11 p.m. Surely, it must have been all over that Madad Ali had been accused of murdering his own aunt and her daughter and if he was not hiding from justice he would have certainly appeared or been found soon after the incident. There is also the evidence of Muhammad Paggi, P. W. 7, who identified the foot‑prints from the house to the watercourse to be that of the accused. The foot prints test was held in the presence of P. W. 8 Misri Khan, a Magistrate. This evidence of the tracker by itself might not be of much value but it can be taken into consideration along with ,F other circumstances. We, therefore, hold that the confession o if the accused is true and it is also corroborated by the circumstances stated above and in the earlier part of the judgment. We accordingly agreeing with the learned trial Judge uphold the conviction and sentence of the appellant under section 302, P. P. C. His appeal is dismissed. K.B.A. Appeal dismissed.