1968 P Cr (PLP)

GHULAM SAFDAR SHAH, J. This Murder Reference No. 5 of 1968 and Criminal Appeal No. 2 of 1968 arise out of the judgment of the learned Sessions Judge. Nawabshah whereby Nawab and Ibrahim were convicted for offences under section 302/34, P. P. C. and each sentenced to death for the murder of Ghazi, son of Qadir Bakhsh Mangrio, in furtherance of their common intention. Since the reference and criminal appeal in question arise out of the same judgment they would be disposed of together.

2. Briefly stated the facts of the prosecution case are these: At about 8 a.m., on 13-9-1966, Rahimdino and Arab P. Ws. left their village Sattardino for another village by the name Saidpur from where Arab intended to purchase a grinding stone. After travelling about two miles from their village they heard an alarm from the nearby sand dunes and when they ran forward they saw both convicts giving hatchet blows to the deceased. The P. Ws. exhorted the assailants not to kill the deceased, but they threatened that in case they intervened they would be given the same treatment. Consequently, the P. Ws. who were unarmed stood by and watched Ghazi being killed by the convicts who thereafter decamped.

3. After leaving Arab P. W. with the dead body Rahimdino returned to his village to inform the relatives of the deceased. On arrival he met Panial, Abdul Hakeem and Ali Bakhsh to whom he narrated the incident and thereafter enquired from them as to the whereabouts of complainant Muhammad, who was the brother-in-law of the deceased. After he was told that Muhammad had gone to see Ali Muhammad Mangrio in the nearby village, Rahimdino proceeded there where on arrival he met complainant Muhammad and informed him of the incident in the presence of Ali Muhammad Mangrio. The three of them then proceeded to the scene of occurrence where Panial, Abdul Hakeem, Ali Bakhsh and other villagers were already present and thereafter on the advice of Ali Muhammad Mangrio, complainant Muhammad travelled to Kandiaro Police Station on the same day and lodged First Information Report of the incident at about 11 a.m. After-recording the First Information Report, Station House Officer Muhammad Ashraf P. W. 9 proceeded to the scene of occurrence and on arrival he prepared the usual inquest report of the dead body and the Mashirnama of the place of occurrence and thereafter got the post-mortem examination of the dead body done at the spot by Dr. Fazal Muhammad, Assistant Medical Officer, Civil Hospital, Nawabshah. After recording the statements of those witnesses, who were present at the scene of occurrence he, proceeded to village Sattardino and arrested the convicts who volunteered to produce the incriminating articles. Accordingly, Ibrahim convict took the police party to his house and produced a blood-stained hatchet, a shirt and a loin cloth from a mud Gundi (grain storing receptacle). Similarly, Nawab convict also led the police party to his house and produced a blood stained hatchet, a shirt, a Banyan and a loin cloth. All these articles were then taken into possession, packed in parcels and sealed and there after sent to the chemical examiner. The convicts also made judicial confession before the Mukhtiarkar and First Class Magistrate, Kandiaro on 15-9-1966, which, they, however, retracted subsequently.

4. The motive alleged for the crime was that convict Ibrahim and the deceased were rivals each trying to win the affection of a Punjabi woman which some time prior to the incident gave rise to a quarrel between them at Halani fair. Complainant Muhammad had tried to bring about a settlement between them, but he failed as Haji, Ali Bakhsh and others who had sided with the deceased in that quarrel, could not attend the conciliation meeting. Four days prior to the incident Ali Bakhsh came to see the deceased in his village to which exception was taken by the convicts and as a mark of protest they went to the complainant and informed him that in case Alt Bakhsh repeated his visit to the deceased there would be trouble. However,, the complainant is said to have advised them not to lose their self-control as he would attempt to bring about a settlement of their existing disputes. Accordingly, complainant Muhammad instructed the deceased to go and fetch Ali Bakhsh and Haji from their village so that a complete compromise could be brought about between the parties. Consequently, the deceased is said to have gone to the village of Haji and Ali Bakhsh on the day previous to the day of incident and while he was returning to his village in the early hours of next morning he was waylaid by the convicts and murdered.

5. In support of its case the prosecution relied on motive, the ocular and circumstantial evidence and the judicial confessions made by the convicts. The case of the defence was of' complete denial. In regard to their judicial confessions the convicts alleged that they were involuntary and were made by them under the Police pressure. They also alleged enmity against complainant Muhammad on account of B. D. Elections in which they had voted for one Ashraf, who was his rival candidate. They also denied that the recoveries of the various 'incriminating articles were made from them or in the manner alleged by the prosecution.

6. In regard to the death, of Ghazi there was no dispute. That fact was sufficiently proved by the evidence of P: Ws. and the medical evidence of Dr. Fazal Muhammad (Exh. 23), who had performed post-mortem examination on the dead body of Ghazi deceased at about 4 p.m. on .13-9-1906.

7. The question which, therefore, required determination was as to: Whether the convicts Were responsible for committing that murder? Apart from the evidence of Station House Officer, Muhammad Ashraf P. W. 9, the prosecution examined six witnesses out of whom Rahimdino and Arab were the only eye-witnesses. Rahimdino in his evidence at the trial stated that on the day of incident he, in the company of Arab P. W., had left his village at about sunrise for village Saidpur from where Arab P. W. intended to buy a grinding stone. When they travelled about two miles and reached a sand tract they heard an alarm and when they ran forward they saw both convicts giving hatchet blows to Ghazi, who was "running about." According; to him, even after the deceased was felled down the convicts continued giving him hatchet blows who as a result died on the spot and thereafter the convicts decamped. The rest of the examination-in-chief of this witness need not be repeated as it substantially corroborated the version of the prosecution as disclosed in the F. I. R. In cross-examination he stated that the distance between the place of occurrence and the place where they heard the alarm would be about forty paces. He further stated that because of the intervening sand dunes- the place of occurrence was not visible from the place where they had heard the alarm. As to the time at which he and Arab were supposed to have left their village for village Saidpur on the day of incident, he was confronted with his lower Court statement where he had said that "we both left village Sattardino before sunrise", as against his, statement in the trial Court that "we left our village at sunrise". In fact he particularised the time of their arrival at the scene of occurrence in these words "When we reached at the vardat, the sun had risen by 3-4 reeds viz., after th of an hour after sunrise".

8. In examination-in-chief Arab P. W. 4 corroborated the evidence of Rahimdino P. W. which need not be repeated. In his brief cross-examination he stated that he and complainant Muhammad were Sandhoos. He further stated that on the day of incident he and Rahimdino might have left their village, for village Saidpur, a little before sunrise. The rest of his cross- examination, which was directed with no success, to establish that he was related to Rahimdino, was unimportant and need not be reproduced.

9. As already pointed out Rahimdino and Arab were the only two eye-witnesses, as admittedly the other P. Ws. reached the scene of occurrence later. In that view of the matter, let us first examine the evidence of these two witnesses to see if it bad provided a sound foundation for the prosecution case. For that purpose we would first like to refer to the evidence of Haji P. W. 7, with whom the deceased had stayed for the night, and thereafter to the evidence of complainant Muhammad and the medical evidence on record which, as would presently be seen, had a decisive bearing upon the evidence of the eye witnesses: In his examination-in-chief Haji P: W. 7, . who was not an eye-witness, supported the prosecution mainly in regard to the motive for the crime. In cross-examination he admitted that deceased Ghazi was his relative the nature of which, however, he did not know. He further stated that the deceased had come to his village at late breakfast time .on the day previous to the day of incident and had asked him to appear before Muhammad complainant as a witness in connection with the compromise talks. He went on to state that the deceased stayed with him for the night, had eaten a meal of rice and bread and had left for his village before sunrise next morning without having his breakfast.

10. Dr. Fazal Muhammad (vide Exh: 23) who had performed the post-mortem examination on the dead body- of Ghazi at the site had found on his person the following injuries "No ligature mark was seen on the neck side as there were so many injuries uncountable on both sides of the neck and face. Neck and face mutilated. Wounds.

Face right side, neck from all sides front back towards chin, right ear, back of the skull, back side of the neck, right shoulder, left shoulder-vertebral column, at 1st, 2nd clavicle vertebrae, fractured and is mutilated, right mastoid bone cut, tipper right jaw cut. Tongue cut in 2 pieces. Size of the wounds 9" x 6" x 5" right and left clavicle cut in the lateral and medical side with sharp weapon. Incised wound 3" x " x bone deep on the left ear and left cheek. Incised cut, 10" x 6" x bone deep, on right scapula, cut on upper 1/3rd. Incised cut fractured 2nd, 3rd and 4th theoretic vertebrae. Incised wound 6" x 4" x long, deep on right 5th and 6th thoracic vertebrae. Incised wound 6" x 4" bone deep on left upper 1/3rd of forearm. Incised wound 4" x 1 " on left tipper leg in middle interiorly. Cranium and Spinal Cord, Scalp and Vertebrae.

Scalp cut from the back, 1st and 2nd cervical vertebrae cut through sharp weapon. 2nd, 3rd 4th thoracic vertebrae cut through sharp weapon. Membrane, Brain and Spinal Cord.

Spinal cord cut through transversely at 1st and cervical vertebrae and at 2nd, 3rd and 4th thoracic vertebrae. Thoracic.

2nd, 3rd and 4th rib fractured and cut through on back side, 5th, 6th right rib fractured on back side. Pleura cut at the level of 5th, 6th right rib on back side. Larynx cut on the right side of the neck. Abdomen.

Mouth cut on right side, tongue cut centrally and laterally at 2 places. In stomach, rice meal present in liquid form. Food matter present in small intestine. Faecal matter present in large intestine. Muscles, bones and joints.

Muscles of the neck, both shoul ders, on back side, and muscles of back, on right side below scapula, cut. Fracture.

Left and right clavicle fractured. Left, radius bone fractured. Right scapula fractured in upper 1/3rd." In his opinion, Ghazi had died due to shock and haemorrhage, immediately after these injuries were inflicted upon his person. According to him, he had died about eight hours prior to the post- mortem examination:

11. Apart from the minor contradiction as to the time when Arab and Rahimdino P. Ws. left their village for village Saidpur, this much was confirmed from their evidence that they had left either a little before or at sunrise time. By looking at the official calendar it was revealed that on 13-9-1966 (the day of incident) the sunrise time at Lahore was 5-44 a.m., and after adding thirty minutes to that time it would make the sunrise time at Nawabshah as 6-14 a.m. considering that it was located six degrees west of Lahore. In that view of the matter, Rahimdino and Arab P. Ws. must have left their village, for village Saidpur, either a little before 6-14 a.m. or a little after, depending whether they had left before or at the time of sunrise which were their two versions. According to Rahimdino P. W., the sand dunes in question were about two miles away from his village and they had covered that distance "after 3/4th of an hour after sunrise" Consequently he and Arab P. Ws. must have reached the place of occurrence at about 6-59 a.m

12. AS against this, complainant Muhammad stated in his s examination-in-chief that "Haji and Alibux live at Latten village 7-8 miles away from our village". Considering that in cross-e xamination Haji P. W. stated that the deceased had left him before sunrise (which must have been prior to 6-14 a.m.) the obvious conclusion would be that he must have reached the sand dunes in question in about one hour and forty minutes (by about 7-54 a.m.) after having covered the distance of five miles, at an average speed of three miles an hour.

13. In the light of this evidence of the P. Ws. i.e. to say of Rahimdino and Arab P. Ws. on the one hand and of Haji, P. W. on the other, a clear doubt arises in our mind as to the prosecu tion case. Assuming for the sake of argument that the two eye-witnesses and the deceased had, respectively left villages Sattardino and Latten a little before sunrise (which at its best could be the prosecution case), it would be impossible to believe that Rahimdino and Arab, who had covered the distance of two miles, from their village to the place of occur rence, in about 45 minutes, could have witnessed the incident, as at that time the deceased would still be about two and a half miles away, considering that the distance between Latten and the place of occurrence was about five miles. Furthermore, Haji P. W. failed to mention as to how long before sunrise the deceased had left his village which further casts doubt on the prosecution case, particularly when Rahimdino and Arab P. Ws. mentioned the time of their departure from their village with almost definiteness.

14. It would be seen that we have minutely scrutinised the evidence of these witnesses on the point of time, although we were conscious of the fact that while speaking of time the village folks should be allowed some margin for understatements or exaggerations. However, in spite of that position, the grant of any such concession appeared to us to be uncalled for in the peculiar circumstances of this case, because Rahimdino and Arab P. Ws. on the one hand and Haji P. W. on the other spoke of time by reference to the phenomena of sunrise, and not in terms of hours. In point of fact, Rahimdino and Arab were at least definite that on the day of incident they had left their village a little before or at the time of sunrise. In any case, even if we were to allow some concession to these witnesses on that score even then the prosecution case would remain doubtful when seen in the light of the remaining evidence on record to which we shall presently advert.

15. Another circumstance which makes the evidence of Rahimdino and Arab P. Ws. doubtful may now be mentioned. According to Rahimdino, when he and Arab reached a point, forty paces away from the scene of occurrence, they heard cries, and thereafter they rushed forward and saw the two convicts inflicting hatchet blows upon the deceased, who was "running about". Arab P. W. also deposed substantially to the same effect and stated that when he and Rahimdino reached near the sand dunes in question they heard cries from a distance and when they ran forward they saw the convicts inflicting hatchet injuries upon the deceased and after they felled him they continued admini stering him more hatchet blows. We were not impressed by this version, which appeared to us to be wholly unnatural. After all when they heard the alarm from a distance (which according to Rahimdino was forty paces), obviously the deceased was already under attack, and after they ran that distance they could not have possibly seen him still "running about" when in the meantime some blows must have been already administered upon his head and shoulders. We are of the view that the attack upon the person of the deceased must have been launched at least some time before Rahimdino and Arab heard the alarm (as any assumption that they heard it simultaneously when the attack was launched would be an extraordinary coincidence), and consequently it would be difficult, if not impossible, to believe that after they ran about forty paces the deceased was still "running about", bring attacked with hatchets. For this assumption we find support from the medical evidence on record which showed that, the deceased had been literally hacked to death as a result of multiple grievous injuries inflicted upon his skull, shoulders, vertebral column, neck and face. which was mutilated. The number and nature of these injuries clearly suggested that at least some of them (such as upon his skull and shoulders) were caused while the deceased was still on his feet which must have felled him down. Therefore, it would be impossible to believe that when Rahimdino and Arab P. Ws. rushed forward, after covering a distance of about forty paces, they saw the deceased still "running about" being attacked by the convicts.

16. It would be recalled that according to Haji P. W., the deceased had a meal of rice and bread on the previous night and had left him before sunrise the next morning. However, according to the evidence of Dr. Fazal Muhammad Exh. 23, when he carried out the post-mortem examination upon his dead body, the stomach of the deceased was found to contain:- "Rice meal present in liquid form. Food matter present in small intestine. Faecal matter present in large intestine." According to learned counsel for the parties, stomach required longer time to digest bread as against rice, and it would require about 5-6 hours to completely digest a meal. In that view of the matter, the medical evidence on record did not support the prosecution version. If on the night, preceding his death, the deceased had taken a meal of bread and rice, then how was it that while the rice was still present in his stomach in `liquid form the food matter (which must obviously refer, to bread) was digested and had passed on to his small intestine? In view of the admitted position that bread required longer time to digest than rice, this phenomena could not possibly occur unless it was presumed that while a meal of bread and rice had been offered to the deceased, the latter partook only of rice and the food matter found in his small intestine was perhaps the residue of digested bread which he might have eaten a few hours before his last meal after he arrived at the house of Haji P. W. on the day previous to the day of incident. However, no such thing was permit ted to be presumed as it was the duty of prosecution to prove its case beyond reasonable doubt and the benefit of all doubt, which properly arose from the evidence on record, must go to the accused. In any case whether the last meal of the deceased consisted of just rice or both rice and bread was not as important as the fact that his stomach was found to contain only rice meal in liquid form and his large intestine faecal matter. Admittedly the stomach required just about 5-6 hours to completely digest a meal and considering that the deceased must have taken his last meal not later than 9 p.m. (taking into consideration the habits of village folks), the said meal should have completely digested, the latest by about 3 a.m. on the day of incident, and consequently should have completely left the stomach. The fact that his stomach contained rice in liquid form could be explained only on the ground that the deceased had left the village of Haji P. W. some time between 3-4 a.m., and after he reached the sand dunes was murdered, when no one appeared to have witnessed the incident. This conclusion further found support from the fact that faecal matter was found present in the large intestine of the deceased which could not have been possible if the deceased had really left the village of Haji P. W. before sunrise (which has been so described by the prosecution and believed by the learned Sessions Judge as if it was just a little before sunrise), as the people in villages generally relieve themselves in fields long before the light of the day. If the deceased had really left the village of Haji P. W. a little before sunrise he would have relieved himself, if not in that village, at least somewhere in between, after he walked a distance of about five miles up to the sand dunes in question. We are, therefore, of the view that the deceased had left the village of Haji P. W., if not earlier, at least some time between 3-4 a.m. on the day of incident and it was precisely for that reason that he had left without breakfast to which otherwise he would have been normally entertained by Haji P. W. For all these reasons we are of the view that the evidence of Rahimdino, Arab and Haji P. Ws. appeared to be doubtful and could not furnish a safe foundation for the prosecution case.

17. Let us now examine the evidence of complainant Muhammad who admittedly was the Sandhoo of Arab P. W. and the brother-in-law of the deceased. He was not a witness of occurrence but was informed of it at about 8-30 a.m. on 13-9-1966 by Rahimdino P. W. at the village of Ali Muhammad Mangrio P. W. which was about two and a half miles away from the place of incident. His evidence, which simply corroborated the version of Rahimdino and Arab P. Ws. may not be repeated.

18. It would be recalled that according to Rahimdino and Arab P. Ws., they had witnessed the occurrence at about 8 a.m. and thereafter Rahimdino walked about two and a half miles distance first to his own village and thereafter to the village of Ali Muhammad Mangrio P. W., and informed complainant Muhammad of the details of occurrence at about 8-30 a.m. on 13-9-66. This version by itself appeared to be un-natural and did not inspire confidence for the simple reason that, Rahimdino could not have possibly informed Muhammad complainant after about half an hour, considering that after the convicts decamped lie must have spent some time with the deceased and thereafter proceeded first to his village and then to the village of Ali Muhammad P. W. Be that as it may, since we have already come to the conclusion that even according to the evidence of Rahimdino and Arab P. Ws., the incident had taken place at about 7 a.m., there was no truth in the evidence of complainant Muhammad that he was informed of it at about 8-30 a.m. It appears that because of the admitted enmity between the parties and the fact that a day before the incident complainant Muhammad himself had sent Ghazi deceased to the village of Haji P. W. so as to bring him as a witness to the proposed conciliation proceedings, he deposed against the accused on mere suspicion, being the brother-in-law of the deceased.

19. The last two witnesses of the prosecution, namely, Ali Muhammad and Panial P. Ws. were admittedly not witnesses of occurrence. They had arrived at the scene, along with com plainant Muhammad, after the latter was informed of the incident by P. W. Rahimdino. Since we have already disbelieved the rest of the prosecution witnesses, for the same reasons we reject the evidence of Ali Muhammad and Partial as well as devoid of truth.

20. Before proceeding further, we might as well dispose of certain contentions of the learned Assistant Advocate-General which had a bearing upon the medical evidence and the evidence of P. Ws. He argued that the state of food, found in the digestive system of the deceased, could not form any basis to come to a definite conclusion as to the time of his death, and in 1 support he relied on certain passages (at pages 63 and 148) from Modi's Medical Jurisprudence (Thirteenth Edition). There was n quarrel with that proposition, but in view of the peculiar facts o this case we relied on the medical evidence only as an additional circumstance, because admittedly our conclusion in regard to the time of death of the deceased was supported by other evidence.

21. The learned Assistant Advocate-General next argued that according to Dr. Fatal Muhammad Exh. 23, Ghazi had died about eight hours prior to tire post-mortem examination which in effect corroborated the evidence of P. Ws., and consequently there was no doubt that the convicts were responsible for the crime in question. For the proposition Mr. Muhammad Haleem sought support from a judgment of the Indian Supreme Court reported as

Bhagwan Das and another v. State of Rajasthan P L D 1957 S C (Ind.)

426. The facts in that case were that the learned Sessions Judge relied upon the medical evidence which was to the effect that the deceased, who was found to have sustained fifteen injuries on his person, could have neither walked nor made any dying declara tion as alleged by P. Ws. and acquitted the accused. In appeal the High Court disbelieved the evidence of the doctor, set aside the finding of the learned Sessions Judge and convicted the accused after reference was made to medical jurisprudence by authors like Modi and Lyon. The Judgment of the High Court was challenged in appeal before the Supreme Court which was allowed and the accused acquitted with these observations: "The learned Sessions Judge was of the opinion that the evidence of the doctor P. W. 11. made the story that Shivlal could walk for a little distance up to the Khala of Hukma or was able to talk so as to make a dying declaration, improbable. But the learned Judges of the High Court disposed of this matter by saying that the doctor was comparatively young and that his statement was not in accord with the opinion expressed in books on Medical Jurisprudence by authors like Modi and Lyon. But it cannot be said that the opinion of these authors were given in regard to circumstances exactly similar to those which arose in the case now before us nor is this a satisfactory way of disposing of the evidence of an expert unless the passages which are sought to discredit his opinion are put to him. This Court in Sunder Lal v. State o/' Madhya Pradesh, disapproved of Judges drawing conclusions adverse to the accused by relying upon such passages in the absence of their being put to medical witnesses. The learned Judges of the High Court were, therefore, in error in accepting the testimony of these witnesses in support of the correctness of the two dying declarations nor could the statement of the deceased alleged to have been made in the circumstances of this case be considered sufficient to support the conviction of 140, the accused." It would be seen that in that case the Supreme Court of India upheld the finding of the learned Sessions Judge as against the contrary finding of the High Court, who for its conclusion had relied upon Modi and Lyon. Apart from the fact that the said judgment was given in the peculiar circumstances of that case it appeared to have no relevancy to the facts of the present case. In that case the opinion of the doctor ex facie appeared to have considerable force as; according to him, the deceased after having suffered 15 grievous injuries, could neither have walked nor made any dying declaration as alleged by the witnesses, but in the instant case that principle would halve no application, as the evidence of Dr. Fazal Muhammad that the deceased tad died about eight hours prior to the post-mortem examination was apparently, based on approximation.

22. In the light of these principles let us now examine the medical evidence on record, According to Dr. Fazal Muhammad Exh. 23, Ghazi had died about eight hours prior to post-mortem examination, but surely that was only an approximation, as in the peculiar circumstances of this case it would be extremely difficult, if not impossible, to fix the hour of Ghazi's death with absolute accuracy, particularly when the post-mortem upon his body was carried out on the spot and the Doctor's opinion was apparently based on his visual observations. In that view of the matter, and in the light of other evidence, which we have already discussed, there was no doubt that the opinion of Dr. Fazal Muhammad, as to the time of Ghazi's death, was only approximate which in no way lent support to the contention of learned Assistant Advocate -General. On the contrary the analysis of the evidence on record clearly suggested that Ghazi had died some time in the early hours of the day of incident and not at about 8 a.m. which was the prosecution case.

23. There now remained for consideration the retracted confessions of the convicts and the various recoveries which were made from them at their behest. We would first take up the point of confessions and for that purpose refer to the evidence of investigating officer, namely, Muhammad Ashraf P. W.

9. Apart from corroborating the evidence of Rahimdino P. W., in so far as the lodging of First Information Report was concerned, he stated in examination-in-chief that he arrested the accused in the presence of Wahid Bakhsh and Muhammad Yusuf Mashirs, and thereafter brought them to the Police Station on 14-9-1966. In an effort to explain as to why he did not send the convicts to the Police Station for the night, he stated that after he completed the proceedings of recoveries and the recording of statements of various witnesses, it had become dark, and there was no arrange ment for escort. He further stated that the convicts were willing to confess their guilt, but since he had to examine more witnesses he had to stay for the night in village Sattardino. He went on to state that Kandiaro Police Station was staffed by two head constables and eight-ten Police Constables any one of whom, depending who was incharge, could have produced the convicts before the Court. He lastly stated that he, along with the convicts, had walked the entire distance of about 8 miles from village Sattardino to Kandiaro Police Station where he arrived at 2/2-15 p.m., on 14-9-190, and thereafter he met the Mukhtiarkar and asked him if he would be able to record the confessions of the convict, but he declined as, according to him, they must have some time for reflection. In answer to a pointed question that 44 on the night between 13th and 14th September 1966, he had sent the convicts and their women-folk to Kandiaro Police Station so as to compel them to make confessions, he re lied that it was incorrect.

24. That being the evidence of the investigating officer, let us now examine the rest of the evidence on record to find out if the confessions made by the convicts were voluntary. Apart from the statements of the convicts, that they were forced to make these confessions, complainant Muhammad in his cross-examina tion clearly stated that after completing their proceedings the Police finally left their village at about 4-30 p.m. on the day of incident. To the same effect was the evidence of Muhammad Panial P. W. 6, who in cross-examination stated that the convicts were taken to Kandiaro Police Station at night, although he denied that their women-folk accompanied them. In this view of the evidence of complainant Muhammad and Muhammad Panial, we are of the opinion that the investigating officer clearly told lies by denying that on the night between 13th and 14th September 1966, he had sent the convicts to Kandiaro Police Station. Since the evidence of Muhammad and Muhammad Partial appeared to support the defence version, we are satisfied that these confessions were not made in line with the requirements of section 24 of the Evidence Act, and consequently they were of no avail to the prosecution. This conclusion found further support from certain other features of the evidence of the investigating officer to which reference may now be made. According to him, he, along with the convicts, had walked all the distance of about eight miles on 14-9-1956 to Kandiaro Police Station, but we have not been able to persuade ourselves to believe that statement. Admittedly the scene of occurrence appeared to be situated at a distance of 2-3 furlongs from a road (as confirmed by the investigating officer that "I came to sarzamin on tonga in the first instance and on the way we caught a jeep going towards Khairpur which left us 2-3 furlongs away from the vardat"), and consequently it was unbelievable that he would have walked the distance of about eight miles, during the hot hours of the month of September, without being able to manage any transport His further statement, that on arrival at Kandiaro he met the Mukhtiarkar and asked him if he would be able to record the confessions of the convicts, was equally un believable for the simple reason that it was the duty of prosecution to have produced the said Mukhtiarkar in proof of that part of its case, particularly when it was intended to keep the convicts in custody for more than twenty-four hours, without any remand. The very fact that the S. H. O. did not produce the convicts, before the said Mukhtiarkar, on that day and kept them in custody for more than twenty-four hours, without remand, was by itself a weighty circumstance which casts doubt on the case of the prosecution. If on that day the convicts were not really under the pressure of police, .the investigating officer would have naturally produced them before the said Mukhtiarkar if for no other reason, at least for the purpose of regularising their custody, considering that he intended to produce them in Court on 15th September 1966, i.e. to say after the lapse of more than about forty hours.

25. Reference may next be made to the actual contents of the confessions of the convicts which also revealed that they were not made voluntarily. In answer to a Court question if he had been given any inducement, threat or promise by the Police on any one else to confess convict Ibrahim first replied that he was not prepared to make any confession, but again said that he was doing so out of his free-will. He further stated that the deceased was armed with a hatchet, and not with a gun at the time of incident. As against this, Nawab convict in his confessional statement alleged that when they first saw the deceased from a distance he had a gun in his hand, but after the attacked him with hatchets they discovered that he was armed with a revolver. In this view of the conflict between their statements; further doubt arises that the so-called confession appeared to have been extracted under pressure. For all these reasons we are satisfied in our mind that the so-called confessions were spurious, and no reliance could be placed upon their in support of the prosecution case.

26. The last piece of evidence against the convicts was the so-called recoveries. Since we have already disbelieved the investigating officer in regard to the most crucial aspect of the prosecution case, namely as to the confessions of the convicts, we are not inclined to believe him even in regard to the incriminating articles which were allegedly recovered from the convicts. Even otherwise the evidence of Mashir Wahid Bakhsh, in whose presence those articles were recovered, was of a doubtful character which inspired no confidence. In cross-examination he admitted that his village was three miles away from village Sattardino, but the Police had called him and made him a Mashir in this case. According to him; the convicts had produced the incrimi nating articles in question just after sunset on the day of incident. He further stated that the deceased was his caste-fellow although not related to him. Lastly, he stated that the Police had arrested the accused at about sunset time. In the first place it was not understandable as to why the Police had to pick upon him to act as Mashir, when the services of many other persons could have been utilised for that purpose from Sattardino village. In any case the evidence of this witness clearly cuts across the entire prosecution case inasmuch as he clearly stated that, the convicts were arrested after sunset but according to complainant Muhammad and Muhammad Panial P. Ws., the Police had departed at about 4-30 p.m. after having completed the investigation. In that view of the matter, the evidence of this witness was clearly false and could not be relied upon.

27. After having analysed the prosecution evidence on record, we are of the view that Ghazi deceased was waylaid and murdered, if not before, at least, sometime between 3-4 a.m in the morning of 13-9-1966, when he was returning to his village from the village of P. W. Haji. We are further of the view that no one had witnessed the occurrence, until after sunrise, when Rahimdino and Arab P. Ws. perhaps passed that way and discovered the dead body, and thereafter informed complainant Muhammad, who then lodged the First Information Report of the incident at about 11 a.m. at Kandiaro Police Station, involving the convicts out of suspicion.

28. By looking at the prosecution evidence in retrospect, it now became understandable as to why the post-mortem examina tion upon the dead body of Ghazi was carried out on the spot. In view of our conclusion that Ghazi had been murdered some time between 3-4 a.m. on the day of incident, perhaps by looking at the condition of his dead body the investigating officer realised that in case it was to be transported over a distance of 7-8 miles to Kandiaro it might enter a stage of dis-composition when it would be difficult for the doctor to carry out the post mortem examination: The fact that the dead body had laid in open, upon a ground which was almost a desert, and had been exposed to the scorching heat of September's sun for about eight to ten hours, it was conceivable that by looking at its condition the investigating officer decided to get its post-mortem examination done at the spot instead of risking the chance of transporting it to Kandiaro. This circumstance by itself lent further support to our conclusion that Ghazi was not murdered in the manner as alleged by the prosecution.

29. For all these reasons we were satisfied in our mind that the prosecution failed to prove its case against the convicts beyond reasonable doubt. While giving them the benefit of that doubt we accept these appeals, set aside their convictions and sentences and order that they shall be released forthwith unless required in connection with some other cases. For the same reasons, the reference made by the learned Sessions Judge to this Court under section 374 of the Criminal Procedure Code is hereby rejected. Appeal accepted.