P L D 1960 (W (PLP)

ABDUL HAMID, J.

‑Four persons Rahimdino, Rasoolbux, Ishaq and Tagial were committed to the Court of Sessions at Khairpur for standing their trial on charges under section 302, ^. P. C. The accusation against them was that they had killed two persons, Lalbux and Mst. Gul Rehan. They were acquitted of those charges, and one Haji Yar Muhammad, a brother of Lalbux deceased, has preferred this revision petition, under section 439, Cr. P. Code, for setting aside the order of acquittal.

2. Lalbux was killed on the night between the 3rd and 4th March 1958 in his otak in a field which is at a distance of about 280 feet from his own house. At a distance of about 102 feet from the place of Lalbux's murder, Mst. Gul Rehan was killed in a field in which wheat crop was standing. There is no eye‑witness to any of these two murders, but some evidence was brought on the record to show that the four accused were the authors of this crime.

3. One Ghulam Ally, P. W. 2, said that on the night of these murders he was a guest of Lalbux deceased, and was asleep with him in his house. He was informed by Tagial accused that Lalbux had been killed and his body was lying in the otak. He went there and found the body of Lalbux deceased lying by the side of the body of Mst. Gul Rehan in the otak.

4. People collected there, amongst whom was one Rozi, P. W. 1, a servant of Lalbux deceased. Rozi said that on the night of the occurrence he was in .his own village and was informed that Lalbux bad been killed along with the daughter of Muhammad Umer. Muhammad Umer is the father of Mst., Gul Rehan. He came to the scene of the offence and found' the two dead bodies lying together. He then proceeded to the police station for report. When he was on his way to the police station, he met on the path Rahimdino, Ishaq and Rasoolbux accused, along with Wadero Usif, and one Bachal. He was asked about his errand and when he explained it to them they said in return that it were they who had killed the deceased and were going to the police station for report. He was asked not to put himself to any trouble about it. But lie said that in spite of that, he proceeded to the police station and lodged a report in which he charged the three accused Rahimdino, Rasoolbux and Ishaq with ,the two murders. He also suggested Tagial's hand in it.

5. When Rozi's report was being recorded in the police station, the three accused, Rahimdino, Ishaq and Rasoolbux, appeared with hatchets in their hands, and were brought under arrest.

6. Mr. Nawaz Ali P. W. 12, S. H. O. Tando Masti Khan, who recorded the first information report on the 4th of March 1958, said that when the report was being recorded, Rahimdino, Ishaq and Rasoolbux appeared with batchets in their hands. He secured those hatchets from them and found that one marked 'B', which was recovered from the hand of Rahimdino accused, bore stains of blood which were later found to be of human origin. He also removed from the person of these three accused their shirts. It was found that the shirts of the two accused, Rahimdino and Ishaq, contained stains of blood, which after chemical examination were also discovered to be of human origin.

7. The investigating officer then proceeded to the scene of the offence and found the dead bodies of Lalbux and Gul Rehan lying in the otak of Lalbux deceased. He also found blood, hair and pieces of broken bangles lying in a wheat field at a distance of about 102 feet from the otak. There were signs of struggle in the field and also signs of dragging the dead bodies from it to the otak. The inspection of the scene of offence revealed that Lalbux was killed in the otak and Mst. Gul Rehan in the field at a distance of about 102 feet from the otak, and her body was dragged to the otak and placed by the side of Lalbux's corpse.

8. Soomar, P. W. 5, stated that he was proceeding to Khairpur and on the way he met the three accused, Rahimdino, Rasoolbux and Ishaq. They were proceeding to the police station and said to him that they had killed Lalbux and Gul Rehan. This Soomar is a tenant of Ha ji Yar Muhammad, a brother of the deceased.

9. Gul Bahar, P. W. 7, who is the father of Sanwal, another servant of Lalbux deceased, said that his son brought the information of his master's murder to him, and when he was on the way to the scene of offence, he met the 3 accused, one of whom was saying that he had killed Lalbux and Gul Rehan. This witness is not only the father of Lalbux's servant, but is also a nephew of Rozi, another servant of Lalbux.

10. Another witness Karimbux P. W. 6, appeared and stated that on the night of the occurrence he went to the otak of the accused after learning about these murders and from there to the house of one Wahidbux, where he found Rahimdino, Rasoolbux and Tagial accused. Rahimdino in his presence stated that they had committed the two murders. The other two accused did not raise any voice in protest against this statement. This witness gave a statement before the police on 6‑3‑1958. The defence succeeded in eliciting from him that in a case which took place about 10 or 13 years ago, and which was between his brother‑in‑law Karamally and one Obhayo Narejo, Rasoolbux accused and his father Chuttal had appeared as witnesses against Karamally.

11. The two dead bodies were sent for post‑mortem examination, which revealed that each of the two bodies had 8 incised injuries. Mst. Gul Rehan had 3 on the head, 3 on the neck and 2 on the hands ; while Lalbux had one on the neck, 4 on the head, 2 on the face, and one on the left ear. All these injuries were caused by a sharp‑edged weapon and some undoubtedly by a heavy weapon like a hatchet.

12. Tagial accused was also brought under arrest on the 4th of March 1958, and on the 19th March he made a confession) from which he afterwards resiled. During the period between his arrest and confession he remained in the custody of the police.

13. At the trial all the accused denied the commission of this offence. Tagial accused did not admit to have made any voluntary confession. The other three accused also denied to have made any extra‑judicial confessions before the four witnesses who deposed to it. They also denied to have appeared at the Police Station on the morning of the 4th March 1158, and further refused to have delivered their hatchets' to the police. They also denied the recovery of blood‑stained clothes from their persons.

14. The Sessions Judge rejected the confession on the ground that it was not voluntary, and was induced under pressure because Tagial accused remained in the custody of the police for about a fortnight. We are in agreement with this con clusion. The only evidence by which Tagial was being sough to be connect with this offence is his confession which does not carry any weight at all. He cannot be said to be a partner in the commission of these offences.

15. The Sessions Judge disbelieved the extra judicial con fessions alleged to have been made by the 3 accused in the presence of the four witnesses Rozi, Soomar, Gul Bahar and Karimbux. He said that these confessions in the first instance were not legally admissible because they were general statements from the mouth of one accused in relation to all. In the case of Karimbux he further said that his evidence was not reliable because he had enmity with the accused, and his statement was recorded 2 or 3 days after the incident. He also doubted the recovery of the blood‑stained hatchet from Rahimdino and the recovery of the blood‑stained shirts from the persons of Rahimdino and Ishaq on the ground that these articles were mixed up when they remained with the police, and it was not possible from the evidence to discover from whose hand the blood stained hatchet was recovered or from whose person the blood stained shirts were removed.

16. In our view there cannot be any serious dispute with the learned Sessions Judge's findings with respect to the extra judicial confessions. These confessions have been brought on the record from the mouth of the four witnesses, Rozi, Soomar, Gul Bahar and Karimbux. It was possible for the Sessions Judge on the material on record, to come to the conclusion that their evidence was not acceptable. The extra‑judicial con fession should be relied upon only when the evidence in their support is unvulnerable. Rozi who deposes to it is a servant of Lalbux, Soomar is a tenant of Lalbux's brother, Gul Bahar is father and nephew of Lalbux's servant. It is not understood why the three accused made these confessions before them and none else. If they were openly boasting of being Ghazis (murderers of kayo‑kari) others not so connected with the deceased must have heard the boasts. Karimbux's evidence is also not free from taint, because his statement was recorded two days after the incident, and he has some enmity with one of the accused, though it is very distant. But the manner in which he says that he heard the confession from the accused, does not carry conviction. It is not understood why the three accused went to the house of Wahidbux and boasted of these murders there, when the evidence is that from the scene of occurrence they proceeded to the police station for making a report. Such evidence can be had from servants and enemies from an asking and deserves no credit.

17. But in our opinion there was no reasonable ground for ignoring two facts in this case, which are of very great importance. One of them is the voluntary appearance of the three accused at the police station with hatchets in their hands. One of these hatchets taken from the hand of Rahimdino was stained with blood, which on chemical examination was found to be human origin. There is, in our opinion, no room for doubt that the hatchet which bore stains of human blood was taken from the hands of Rahimdino. The evidence of Nawabally, S. H. O. is clear on the point. He said, in clear language, that the hatchet which was recovered from Rahimdino was separately marked and on chemical examination human blood was found on it. Even if a Mashir says that‑these two hatchets were not covered from the hands of the accused in his presence, the evidence on the Sub‑Inspector is enough to show that they were recovered from the accused Rahimdino. Even the mashirs have stated in the mashirnama that these were recovered in their presence. They in their oral statement are going against the mashirnama which they had signed and which after having it read out to them, they admitted to be correct. Their version in the oral statement, in the face of their acceptance of the writing, and the evidence of the Sub‑Inspector, carries no weight.

10. With reference to blood‑stained shirts, there is absolutely no room for doubt that one was removed from the body of Rahimdino, and the other from the body of Ishaq and both carried stains of human blood. These shirts were sent to the Chemical Analyser, after these had been signed by the mashirs and after the name of the accused from whom each was recovered had been written on it. The Chemical Examiner found two shirt:, stained with human blood, and these were the shirts which bore the names of Rahimdino and Ishaq. In our opinion there is nothing in the evidence to suggest that the hatchets were misplaced, or the blood‑stained shirts were so mixed up that it was not possible to say with certainty that the two stained with human blood were not removed from the person of Rahimdino and Ishaq. There is also evidence of motive for the offence in the three accused. They are Mangrios by caste and Mst. Gul Rehan for whose fidelity to the caste and she and her paramour have been punished, is also a Mangrio. If some Mangrios have taken upon themselves the task of avenging disgrace offered to their caste, there is no surprise in it. If these pieces of evidence had been relied upon by the learned Sessions Judge, it is possible that his conclusions might have been different. For these reasons, we set aside the order of acquittal recorded by the Sessions Judge against Rahimdino and Ishaq, and return the case to the Court of Sessions for the retrial of these two accused only. We direct that the case be tried by a Judge other than the Sessions Judge whose judgment is being set aside. The order of acquittal passed upon Rasoolbux and Tagial is maintained. CONSTANTINE, J.‑

I agree with the order, but I would add a few words. The evidence of Rozi, Soomar and Gul Bahar has been discarded by the learned Sessions Judge on the ground that no evidentiary value can attach to a joint confession. I do not consider that this is correct. Even assuming that only one out of the three accused spoke, yet the silence of the other two is admissible under section 8 of the Evidence Act. Owing therefore to what I think was a misdirection of himself as to the law, the Sessions Judge has not pronounced any opinion as to their credibility. I wish to make it clear to whatsoever Judge may now try this case that any opinion expressed by this Court as to facts is not binding upon him. K. B. A. Order accordingly.