1988 PLP r (PCRLJ)

ALLAHDINO G. MEMON, J.‑‑The appellant was tried under section 302, P.P.C. for the murder of Khan Mohammad s/o Moosa, and tried before the learned Additional Sessions Judge, Thatta, who has convicted and sentenced him to death, and to pay a fine of Rs.2.000 or in default to suffer R.I. for two years, also to pay compensation of Rs.10,000 to the heirs of the deceased and in default to suffer R.I. for five years under section 302, P.P.C., vide judgment dated 11‑5‑1987. The brief facts of the prosecution case are that on 6‑1‑1985 one Khuda Bux s/o Mossa lodged a report at P.S. Thatta which reads as under:‑-- "That we are four brothers. Our younger brother namely Khan Mohammad alias Khan who is aged 25/26 years has been working as driver with Babu Shah since last 10 years. My brother Khan Mohammad lived with Babu Shah and used to visit our village and meet us occasionally. About a week ago my brother Khan informed me that Nooro Shah son of brother of Babu Shah presses that I should leave the job of Babu Shah as my uncle Babu Shah and the residents of village have confidence in you and nobody cares for us. At night I was at my village when I heard two gun shot reports from the Otaq of Babu Shah. After that Haji Moula Bux Shoro came to may house and disclosed the fact that Nooro Shah son of Siddiq Shah has murdered our younger brother Khan Mohammad by gun fire. Then I, my brother Mohammad Hassan, and Jurio son of Mohammad Hashim went to the Otaq of Babu Shah alongwith Moula Bux Shoro, and we saw that my brother Khan Mohammad alias Khan had pellot injuries on his hand, face, and head, which had bleeded and he was dead. One Mohammad son of Wali Mohammad by caste Machhero was sitting there, who told us that he and Khan Mohammad were sleeping on two separate beds in the Otaq. At about 9‑30 night he woke up suddenly on hearing gun shot reports, and saw that Nooro Shah son of Siddiq Shah was there, who had gun in his hand which he left there and ran away. Soon thereafter Babu Shah and other residents of the village came there and we narrated the facts to them. I have come for report leaving the P.Ws. at the dead body. Accused Nooro Shah son of Siddiq Shah has murdered my younger brother Khan Mohammad by firing gun shots." The above F.I.R. was recorded by A.S.I. Ajaz Ahmed. The F. I. R. has been produced as Exh.7/A. After recording the F.I.R., A.S.I. Ajaz Ahmed went to the place of Wardat and prepared Mashirnama of Wardat in presence of Mashirs Haji Usman and Yaroo. He found dead body lying'in roofless Otaq. A double barrel gun was lying outside the walls of the Otaq. There were two empties in the barrel of the gun. He secured the gun, two empties from the barrels of the gun, bed‑sheet, pillow cover, and cover of quilt as all these articles were blood‑stained. The same were sealed in the presence of the Mashirs. The Mashirnama has been produced as Exh.12/A. He then prepared inquest report and the same has been produced as Exh.12/B. He accused the clothes of the deceased, produced by P.C. Ghulam Mohammad under Mashirnama, and the same has beer, produced as Exh.12/C. He then examined P.Ws. Hassan, Jurio, Mohammed Machhero and Babu Shah. He then handed over the papers to A.S.I, Iqbal who had reached the Wardat. Intimation was also given to S. H O. Peromal. On 15‑1‑1985 he received information from P.S. Peromal about the arrest of the accused. He then went there and took accused in his custody, and secured Mashirnama prepared by H. C. P. S. Tando Mitha Khan. He brought the accused to Thatta, and handed over Mashirnama and accused to S.H.O. He has produced the Mashirnama as Exh.17/A. On 15‑1‑1985 S.H.O. Karamat Hussain interrogated accused Noor Muhammad Shah. On 16‑1‑1985 he produced the accused before Mukhtiarkar and F. C. M. Sujawal for recording his, confession. On 23‑1‑1985 he got the statements of P.Ws. Babu Shah and Mohammed recorded under section 164 Cr.P.C. in presence of the accused. He then challaned the accused in the Court under section 302, P.P.C. and 13‑D Arms Ordinance. A formal charge was framed against the accused to which pleaded not guilty. At the trial prosecution examined complainant Khuda Bux P.W.1, he has produced the F.I.R. as Exh.7/A, eye‑witness Mohammad Machhero P.W.2, he has produced his 164, Cr.P.C. statement recorded before Mukhtiarkar and FCM Sujawal as Exh.8/A, Babu Shah P.W.3., he has produced his 164, Cr.P.C. statement as Exh.9/A, Haji Moula Bux P.W.4, Mashir Haji Usman P.W.5, he has produced the Mashirnama of Wardat as Exh. 12/ A, inquest report as Exh.12/B, and Mashirnama of securing clothes of the deceased produced by P.C. as Exh.12/C. Dr. Mohammad lqbal the then Medical Officer, Civil Hospital, Thatta, P.W.6, he had carried on post‑mortem on dead body of the deceased Khan Mohammad and has produced the post‑mortem report as Exh.13/A. Mr. Ramesh Kumar Mukhtiarkar and F.C.M. P.W.7, who had recorded the confession of the accused. He has produced the confession of the accused as Exh.15/A. Mashir Yar Mohammad P.W.8 who had acted ar e co‑Mashir of Wardat, inquest report and production of clothes of deceased. A. S. I. Ajaz Ahmed P.W.9 who had carried or the investigation partly, and S.H.O. Karamat Hussain who had carried the remaining investigation. He has produced the ballistic expert report and chemical report as Exs. 18./A and 18/B. Tapedar Mohammad Moosa P.W.11, he had prepared sketch of Wardat and the same has been produced as Exh.19/A. Complainant Khuda Bux has supported the contents of his F. I. R. and has further deposed in cross‑examination that P.6V. Haji Moula Bux had gone to inform him alone. Moula Bux resides in his own village which was about 3/4 miles away from his village. Village Babu Shah was situated about 1 mile away from village Haji Mohammad Shoro. He went directly to the place of the incident. There was no boundary wall of the Otaq of Babu Shah nor there was roof, doors and windows. He could not give the time of reaching al the wardat. Haji Moula Bux had pointed out the place of wardat. When he reached at the wardat the gun was lying on the ground. He did not find anything else lying near the gun. The gun was lying out‑side the Otaq, and the dead body was lying inside the Otaq. There were two cots lying in the Otaq. The village of Babu Shah was not electrified. It was the 13th of lunar month, and there was full moon light at the time of incident. The dead body was first taken to the police station, and from there it was taken to the hospital. Police station was situated about 9 miles away from the place of wardat. He had left the place of incident for lodging report at about 11‑00 or 11‑30 p.m. He thought that he had reached the Police Station at about 1‑00 a.m. He was informed by Babu Shah that the accused Noor Mohammad Shah was son‑in‑law of Babu Shah. He also knew that his brother Khan Mohammad used to live with Babu Shah. He knew father of the accused namely Siddiq Shah. Siddiq Shah is brother of Babu Shah and owns lands jointly with Babu Shah. He never heard of any dispute of land between Babu Shah and accused Noor Mohammed Shah. He did not know that Babu Shah was also in possession of the land of Siddiq Shah. The village of Haji Moula Bux Shoro was two furlongs away from the village of Babu Shah. Police had reached the wardat at 2‑00 or 2‑30 a.m. He denied that he was giving false statement because his brother was killed. P.W. Mohammed has deposed that he was servant of Babu Shafi. The incident of murder of Khan Mohammad occurred about 24 months ago. Khan Mohammad was also employed by Babu Shah as his driver on the jeep. He and Khan Mohammad used to sleep in the Otaq, and there were only four walls. Nooro Shah was nephew of Babu Shah. There was conflict between accused Nooro Shah and Babu Shah and apple of diacord was Khan Mohammad (Note: The latter part o the sentence which has been underlined does not make any sense. In Sindhi it is written as under: ‑ meaning thereby that these is a dispute between Nooro Shah anal Babu Shah). It was about 9‑30 p.m. when he and Khan Mohammad were sleeping in the Otaq. At that time he heard gun report and removed his quilt from his face, and saw Noor .Mohammed Shah going out and standing at the enterance of the Otaq. He identified him in the light of the moon. He saw him abandoning his gun besides the entrance and he ran away. He raised cries which attracted Babu Shah followed by other. He saw Khan Mohammad, and he (witness) told him that Noor Mohammad Shah had ran away after causing injuries to Khan Mohammad. He had seen the deceased. He had sustained injuries on both eyes from which there was bleeding, and he has also injury on the backside of palm. Blood was flowing even up to the ground after affecting the bedding. Babu Shah sent Haji Moula Bux who brought Khuda Bur, Hassan, and Jurio brothers of the deceased. It was double barrel gun. He gave fact to Babu Shah and then to Khuda Bux. Police came and recorded his statement. In cross‑examination he had deposed that he has been working with Babu Shah since 6/" years. The name of his village is Haji Maloo Machhero at Sujawal. There were only two cots in the Otaq. His cot was heading towards East, and the cot of Khan Muhammad was heading towards North. The two cots were making 'T' in shape. The walls of the Otaq were of man's height. One could not see happenings taking place outside the Otaq while sitting in the Otaq. He had heard two gun reports. He had woke up on hearing gun reports i.e. explosion. He got sitting on the cot for 5/6 minutes raising cries till arrival of Babu Shah. The Otaq was situated 40/50 paces away from the village of Babu Shah. He had narrated the facts to Babu Shah only, and Babu Shah told the same facts to Khuda Bux. 50/60 persons had callected at wardat when he was telling the facts to Babu Shah. All those persons were villagers from the village of Babu Shah. The village of Babu Shah was not electrified. He had stood at the enterance of the Otaq and did not go out. Noor Mohammad is son‑in‑law of Babu Shah. Noor Mohammad had joint meals with Babu Shah but used to live in separate house in the same village. His statement was recorded in the morning at the spot. He denied that he was deposing falsely at the instance of Babu Shah because he was his servant. Siddiq Shah father of Noor Mohammad Shah was still alive, and it was not correct that Babu Shah had usurped the land of Siddiq Shah after his alleged death. Siddiq Shah had met with some accident 10/12 years ago, when he was not in the employment of Babu Shah but he had heard about it. Babu Shah P.W.3 has deposed that he owns land measuring about 200 acres which is in the name of his father but he is general attorney. He also owns a jeep for his personal use of which Khan Mohammad was driver for many years. He has an Otaq where his servants Mohammad and driver Khan Mohammad used to sleep during night. The Otaq was situated 40/50 paces outside his village, and it had no roof, doors and windows, as it was under construction. Khan Mohammad Shoro was incharge of his work. Accused Noor Mohammad Shoro is his son‑in‑law who was working as Daroga in Irrigation Department, and used to take meals with him. His Haris and Noor Mohammad himself had once complained that Khan Mohammad did not give lift to accused in the jeep, and he (witness) had replied that Khan :Mohammed was a faithful servant which annoyed the accused. About 25/26 months ago he was sleeping in his house, while Khan Mohammad and Mohammad Machhero were sleeping in the Otaq. At about 9‑30 p.m. he heard two gun shots from the side of the Otaq, and thereafter the cries of Mohammad Machhero, on which he rushed towards Otaq where Mohammad Machhero told him that Noor Mohammad Shah had killed Khan Mohammed. Mohammad Machhero further told him that accused had run away on seeing him approaching the Otaq. He had also seen him running away from his back. He had identified him in the light of full moon. He went inside the Otaq and saw Khan Mohammed. His flesh of eyes had come out due to injuries and he had also sustained injury on his right palm. Mohammed Machhero further told him that he and the deceased were sleeping in the Otaq on separate cots when he woke up on hearing gun reports and saw accused Noor Mohammad Shah. First he was taken aback due to fear but then he raised cries which attracted him (witness). He (Babu Shah) was followed by many co‑villagers. The accused abandoned a double barrel gun which was lying there. He then went to Haji Moula Bux Shoro who is Nekmurd of his community and resides in his Para. He gave him facts and sent him to Khuda Bux brother of deceased. Khuda Bux, Mohammad Hassan, Jurio, Esso and Haji Moula Bux came to the wardat. He narrated the above facts to Khuda Bux who went to P.S. and brought police at the wardat. The bed and the cot of the deceased were stained with blood. There was also some blood on the ground. The deceased had been killed by the accused out of grudge due to above reason as stated by him. The gun was a licensed gun of his (witness's) father which the accused had taken away from the house and the same was lying outside the Otaq. In cross‑examination he has deposed that the accused is his son‑in‑law. He resides in the same village. Siddiq Shah father of Noor Mohammad accused is his brother. Siddiq Shah had met with an accident. Siddiq Shah does not hold any land in his name but the land in the name of his father was privately partitioned, and his share is in his own possession. He denied a suggestion that the share of Siddiq Shah was also in his possession. The Otaq was under construction at the time of incident previously there was but at that site where Khan Mohammad and Machhero were living. He denied that deceased used to live in his house because of construction of Otaq. Mohammad Machhero is his servant for the last 7/8 years. The deceased had complained to him some days before this incident when the accused had asked him to quit his service but he had stopped him and asked him to stay because he was looking after his affairs, as he was injured in an accident and needed his help. He did not tell him the reason for which the accused had asked him .to leave his service. First he reached the Otaq and just immediately thereafter people from village also reached there within no time. He reached Otaq both on gun report as well as on cries of Mohammad Machhero, because the cries were raised just after gun reports. Haji Moula Bux resides in a village named after him. Village of Haji Moula Bux would be 2/3 furlongs away from his village. He went alone to house of Haji Moula Bux. Haji Moula Bux came out alone from the house when he called him. He denied that Khuda Bux had lodged report at his instance. He reached the house of Moula Bux before 10‑00 p.m. From the house of Haji Moula Bux he returned to Wardat while Moula Bux went to inform the complainant. He could recognize his father's gun and he had recognized it at the wardat. The gun in Court was the same. He never used this gun himself. His father never told him that his gun was stolen. He was at Sujawal at that time. He denied that he had a dispute on land with Siddiq Shah father of the accused and therefore he was giving false statement. Haji Moula Bux P.W.4 has deposed that about 25 months back he was sitting at his house when at about 9‑00 p.m. he heard two gun reports. At about 9‑30 or 10‑00 p.m. Babu Shah came to him and told him that his nephew Noor Mohammed had committed murder of his driver Khan Mohammed Shoro by firing gun at him, and he asked him to go and inform the brother of Khan Mohammad Shoro. Babu Shah then returned to his house, while he went to the brother of the deceased. He went and informed the complainant, and brought Khuda Bux, Mohammad Hassan, and Jurio to the wardat. Mohammad Machhero, Babu Shah and other co‑villagers were also present there. Mohammed Machhero informed them that the accused is nephew as well as son‑in‑law of Babu Shah who had brought him up from childhood but he was annoyed with Khan Shoro because Babu Shah had entrusted all the work to Khan Shoro and Shoro was not recognizing the position of the‑accused, hence he had killed him. He further informed them that he had seen Noor Mohammed Shah in the light of full moon as it was 13th of the lunar month. He had worked up on hearing gun reports and found the accused standing with gun. In cross‑examination he has deposed that he did not belong to the village of the complainant, but he resides 3/4 miles away from him. He denied that whatever he had deposed was told to him by Babu Shah, but his statement was based upon his own knowledge and observation. He had reached the house of complainant Khuda Bux at about 10‑00 or 10‑30 p.m. He had told the details of incident to complainant which were known to him. Except Mohammad Machhero and Babu Shah he did not make any enquiry about the incident from any other person. Village of Khuda Bux complainant was situated about one mile away from the Otaq of Babu Shah. Mashir Haji Usman has deposed that police had made him Mashir of wardat about 25 months back. Other Mashir was Yar Mohammad. It was situated in the Otaq of Babu Shah. The dead body of Khan Mohammad was lying on a cot. A gun was lying in the West of dead body. There were gun shot injuries on the person of deceased. Police secured gun No.11818. Police opened the gun and found two empty cartridges of Shaheen made and there was smell of gun powder which showed that it was freshly and recently fired. Police made such Mashirnama and the same was produced as Exh.12/A. Police had prepared inquest report in his presence and the same has been produced as Exh.12/B. The police also secured clothes of the deceased and prepared such Mashirnama in his presence which has been produced as Exh.12/C. In cross‑examination he has deposed that he resides in village Haji Mohammad Ali Shoro and the complainant also resides in the same village. There is a note from the Court showing that the witness was hidding left hand and he reluctantly opened the cell under the orders of the Court and it was found that the gun number was noted on his palm. He did not remember the number of the gun hence he had noted it at his hands so as to refer while giving evidence. He further stated that he had given gun number in the Court after looking at his hand where the gun number was noted by him. The police station was about 7/8 miles away from his village. He had gone to P.S. 2/3 times during the investigation of this case. Only Yar Mohammad had gone to P.S. with him. Yar Mohammad was also resident of his village. Dr. Mohammad Iqbal P.W.6 had conducted post‑mortem on the dead body of Kh‑n Mohammed. He started post‑mortem examination at 10‑00 a.m. found the following external injuries on the person of the deceased: ‑-- "(1) A lacerated wound of entry around the right eye with blackening around 2 c.m and eye ball protruded internally 3 cm x 4 cm. (2) Lacerated wound on the left medial side of eye ball 2 cm x 1 cm and blackening around medial side. (3) There is wound of exit on the parieto occipital region left with brain matter whole protruded fracture of parieto occipital bone and orbital cavity and both eye balls out. (4) Lacerated wound on the right dorsum of hand 4 cm x 3 cm tendon deep". On internal examination he found the brain matter and membrane out and fracture of occiptial cavity and left parieto occipital bone. From external as well as internal examination of the deceased he was of the opinion that the death was caused due to shock and hamorrhage as a result of discharge of fire‑arm. Death was caused instantaneously, and time between death and post‑mortem was 10‑12 horses. The injuries were anti‑mortem in nature and were caused by discharge from fire‑arm within the range of 6 feet. He has produced the post‑mortem notes as Exh.13/A. In cross‑examination he had deposed that the shot must have been fired from front. He did not find blackening anywhere from the face of the deceased except around the eyes as already deposed. The external injuries described by him could be caused by one shot. He did not take X‑Ray. No pellets were found in the injuries. In reply to the question from the Court he had deposed that there was no wound of exit as the result of injury No.4.Injury No.4 could be caused by discharge from fire‑arm as well as by some hard and blunt substance. The injury No.4 could not be caused by the shot which caused injuries Nos.1 and 2 if the deceased had been sleeping with his left hand on his eyes when he was fired at. No brain matter was present at all when he examined the dead‑body. He had not described the measurement of wound of exit. The wound of exit extended to 2 bones i.e. perieto and occipital bones, and the whole was missing. He had also not taken measurement of the bones which were missing alongwith the brain matter. Mr. Ramesh Kumar P.W.7 has deposed that on 16‑1‑1985 he was posted as Mukhtiarkar and FCM Sujawal when on that day S.H.O. Thatta produced accused alongwith latter for recording his confession. He was produced at about 12‑00 noon. He got his handcuffs removed and asked the concerned police to go outside premises of Court. He then disclosed his identity to the accused and warned him that whatever he states shall be recorded and the same can be used against him in the Court of law. He enquired from him whether he was maltreated by the police and he replied in negative. He also enquired from him if police has brought any coercion upon him by humiliating his relation in order to extort confession and the accused replied in negative. He then made it clear to him that he was not bound to confess and he will not be returned to police custody whether he makes the confession or not. He also enquired from him whether police had induced him to make confession with promise to make him approver but he denied. He also examined the body of the accused but did not find any mark of violance on his person. After these warnings he gave two hours for reflection to the accused from 12‑00 to 2‑00 p.m. and during that period the accused was made to sit in the Chamber under the custody of his revenue peon. At 2‑00 p.m. he called the accused through his peon. He repeated all the above warnings and question yet he was willing to make confession. From the above warnings and questions he was satisfied that the accused was making confession voluntarily. Hence he recorded his confession as far as possible in his own words, read over and explained to him, and he admitted the same to have been correctly recorded and signed the same. He appended his certificate regarding satisfaction and voluntariness of confession. He then remanded the accused to judicial custody. He has produced the confession as Exh.15/A. In cross‑examination he denied a suggestion that S.H.O. had again appeared when he called the accused after the time of reflection was over. He had sent the accused to judicial lock‑up with the guard of judicial lock‑up. The S.H.O. was out of the Court premises when he asked them to leave the Court. He denied a suggestion that during the time for reflection accused was made to sit outside his Court and Chamber. He denied that he did not give two hours time to the accused. He also denied that S.H.O. was sitting with accused during the time of reflection. He denied that he did not give any time for reflection to the accused and that the police guard was present when he was recording the confession of the accused. In reply to the question put by the Court he has stated that on page 3 under the question No.3 first he had written answer (sayes sir) (Haa Seen) which he scored out under his signature and wrote (No sir) (Na Saeen) and did not obtain signature of the accused on this correction. He has admitted that the correction on page 4 was also under his signature but he did not abtain signature of the accused. On page 4 also line 11 word 'Babu' has been struck off under his initial. There is also correction at page 5 in line 3 whereby "darghi at the door" has been scored out under his initial and there is further correction in line No.9 under his signature, and these corrections were not attested by the accused. To another question from the Court he replied that despite the statement of the accused that he was hidding from place to place, he was satisfied that he was making confession voluntarily. He enquired from the S.H.O. as to why he had brought the accused to Sujawal instead of producing him before any Magistrate at Thatta and he replied that Mukhtiarkar Thatta was not available. Mashir Yar Mohammad P.W.8 has deposed that about 2 years back police had inspected the place of Wardat in his presence and prepared such Mashirnama which has already been produced as Exh.12/A. Police had secured double barrel gun with two empties lying in the gun from the Wardat. Police also secured blood‑stained bedding and had also seen the dead body. The police had sealed the above articles in his presence and obtained his signature on Mashirnama. In cross‑examination he has stated that he resides in the village where the complainant resides. Aijaz Ahmed A.S.I.P. P.W.9 has deposed that on 6‑1‑1985 he was posted as A.S.I.P. at P.S. Thatta when complainant came and lodged report at 1‑30 a.m. He recorded F.I.R. at his dictation, read over to him and obtained his signature. F.I.R. Exh.7/A was the same. Thereafter he carried on the investigation which had been mentioned in the earlier part of this judgment. In cross‑examination he has stated that he had made entry in 'Roznamcha' when he left police station. There were many footprints at the Wardat. He had not secured earth because blood had not fallen on the ground. Blood had not reached upto the net of cot also but it was soaked by matress. He had reached at Wardat at about 2‑45 a.m. About 25 persons had collected at the Wardat. Village of Babu Shah was situated about half furlong away from the Wardat. He had recorded statement of P.Ws. at about 6‑30 or 6‑00 a.m. He had never called the witnesses to Police Station. The clothes of the deceased were not produced by Ghulam Muhammad at P.S. but at the Wardat where Mashirs were present. Pirumal is 160 K.M. away from Thatta. He denied that he did not associate people of village of Babu Shah in the investigation. There was no village near Wardat except village Mohammad Ali and Babu Shah hence he did not record statements of persons of those villages. Karamat Hussain S.H.0. P.W.10 has deposed that he was posted as S.H.Q. on 15‑1‑1985 when Aijaz Ahmed A.S.I.P., who was investigating the present crime produced Noor Mohammad Shah, who was arrested by Police of Perumal. He interrogated the accused. On 16‑1‑1985 he produced the accused before Mukhtiarkar and F.C.M. Sujawal for recording his confession. On 23‑1‑1985 he got the statement of P.Ws. Babu Shah and Mohammad Ali recorded under section 164 Cr:P.C. in presence of the accused. He then challaned the accused in the Court. He had sent the double barrel gun and two empties to Balistic Expert, Karachi and has produced the report as Exh.18‑A. He had also sent one white cover of quilt, one blue cover of pillow and brown worn cloth, pink bed sheet and clothes of the deceased to Chemical Examiner, and the report had been produced as Exh.18‑B. In cross‑examination he had deposed that he did not remember the date of sending the articles to the Chemical Examiner. He did not remember as to how long these articles were kept at Police Station before they were transmitted to the Chemical Examiner and Ballitic Expert. He did not remember the time when he recorded the statement of accused. On 16‑1‑1985 when he produced the accused before Mukhtiarkar only accused and Police party were with him. Mukhtiarkar had remanded the accused to judicial custody after recording the confession. He admitted that on 23‑1‑1985 the accused was in judicial custody but Mukhtiarkar had sent for him from judicial lock‑up for recording the statement of P.Ws. Tapeder Mohammad Moosa P.W.22 had prepared scatch of Wardat and has produced the same as Exh.'9‑a. According to him: Point A was an open Otaq with open roof in room No.1 where the dead body of Khan Mohammad Shoro was said to have been lying on cot. Point B: denotes the place‑in the room where P. W . Mohammad was said to be sleeping. It was 7 feet towards the south of Point A. Point C denotes house of Noor Mohammad Shah situated 714 feet towards south west of point A. Point D denotes the house of Syed Babu Shah and other Syeds which was 281 feet towards south of point A. Point E denotes Masjid which was situated about 419 feet south east of point A. Point F. denotes the door of room No.1 of the Otaq which was five feet in the south west of point A. Point J denotes the house of Mir Behars which was about 800 feet on north west of point A. Point L denotes Katchi Otaq of Syeds about 100 feet towards south west of point A. After close of prosecution case, the statement of the appellant was recorded under section 342, Cr.P.C. in which he denied the allegations and has further stated that the witnesses have been set up by P.W. Babu Shah. Babu Shah had contracted second marriage and when the accused demanded share of land of his father, Babu Shah was annoyed and implicatea him in this false case. With regard to confession he had stated that he was produced before Mukhtiarkar and FCM, Sujawal but he did not make any confession and S.H.O obtained his signature on Exh.15‑A. lie was in handcuffs and S.H.O. was present He has further stated that his grandfather has three sons, the eldest is his father, then is Babu Shah, and the youngest is Roshan Shah. He used to live with Babu Shah till 1982, when his father met with an accident and thereafter he started living with his father. Babu Shah contracted second marriage in 1982 and thereafter he stopped giving them their share of produce. He demanded from him their share of produce which he refused and he complained to his grandfather. His grandfather asked Babu Shah to pay their share but he refused him also. He abused and quarrelled with him. He also detained his wife and his son. On 11th luner month his Mureeds took him to Sanghar and then Tando Mitta Khan as usual. On 14‑1‑1985 he was sitting at the Otaq of Jurial Khan at Tando Nlitta Khan when one Head Constable and two police constables came and enquired about him. He gave them his name and they asked him to go with them as S. H. O. had called him on receipt of a telephonic message from Sanghar. When people intervened the constable told them that there was a case against him. He went to P.S. Tando Mitta Khan and S.H.O. had talked at telephone to Sanghr. After 15/20 minutes A.S.I.P. Aijaz Ahmed and A.S.I.P. Ghulam Mohammad Shoro who were in civil dress arrived in a car with Babu Shah who pointed towards him. From there they took him to Perumal P.S. They called Ahmed Jamali and Ramzan Jamali. Babu Shah went away but he came in the evening. He enquired as to why he has been kept and Babu Shah told him that he had murdered Mohammad Khan Shoro. He refuted this allegation and asked them to make enquiry from Jamali that he was present there. Babu Shah got his legs tied and he was beaten and forced to make confession. Then he was taken to Thatta via Sanghar. At Thatta he was again beaten at midnight at the instance of S.H.O. Karamat and Babu Shah. They also put ice under his feet and on his head with the result that he went unconscious. He still has marks on his feet. In the morning S.H.O. Karamat took him to Mukhtiarkar of Sujawal in handcuffs and threatened him that if he did not confess, the treatment given to him on the preceding night will be repeated. He was then produced before Mukhtiarkar in handcuffs with two constables on the side. S. H .O. Karamat sat down with Mukhtiarkar and the confession was reduced into writing. Karamat then obtained his signature. From there they brought him in the Car of Babu Shah and put him in Jail at Thatta. He was innocent. He also examined himself on oath as envisaged by section 340(2), Cr.P.C. He has deposed on oath that he has only son of his father. His grandfather Qutub Ali Shah has got three sons namely Siddiq Shah, Babu Shah and Roshan Ali Shah. He is married with the daughter of Babu Shah and has a son. His wife and son are in custdoy of Babu Shah. His grandfather had distributed his land among his sons. Babu Shah looks after the land of all the three brothers. His father met with an accident in 1983 and he demanded money from Babu Shah for the treatment of his father but he refused to give. In 1984 Babu Shah contracted second marriage and a month thereafter he stopped paying maintenance allowance to them. He complained to his grandfather who called Babu Shah and advised him to pay them but he refused. Khan Mohammad Shoro Was driver of Babu Shah prior to his death. He never had any quarrel with Khan Mohammad Shoro but Babu Shah had some dispute with Khan Mohammad Shoro. Babu Shah and his father had dispute over land. His father is crippled after the accident and he is only person to look after his family. Due to these reasons Babu Shah got him implicated in this case. He has been falsely implicated in this case. His grandfather has got a gun and that gun remains with Babu Shah. The gun was also with Babu Shah and his name is entered as retainer of the gun. Baboo Shah used to keep the gun and licence in his Almirah where he used to keep the money also. He was at Sanghar when the incident took place. He denied to have murdered Mohammad Khan Shoro. In cross‑examination he has deposed that Baboo Shah is now managing entire lands jointly since 1983. The land management of the entire land was with his father before 1983 i.e. till before accident. He had complained to his grandfather, to his maternal‑uncle (who is now dead) and two others when Baboo Shah refused to pay maintenance allowance to them. He has denied a suggestion that he has falsely alleged that Baboo Shah, had stopped paying maintenance allowance and refused to pay when demanded. He denied a suggestion that Baboo Shah had been looking after requirements of his family. He denied that he had demanded jeep from Khan Mohammad Shoro driver many times and he always refused. He also denied that few days before this incident he had complained to Baboo Shah that the had asked the driver to give lift but he did not stop the jeep for him. He has denied that on the night of the incident he took gun of his grandfather and killed Mohammad Khan Shoro and that thereafter absconded. The learned trial Judge while relying upon the ocular evidence, motive, abscondence and retracted judicial confession convicted the We have heard Mr. A.Q. Halepota, learned counsel for the appellant, Mr. Abdul Wali Makhdoom, learned counsel for the State, Mr. Aftab Ahmed Alvi, learned counsel for the complainant and have also gone through the R & P of the case. The learned counsel for the appellant has contended that the motive alleged by the prosecution is false inasmuch as PWs Mohammad and Baboo Shah have not said a word about motive in their 164, Cr.P.C statements. Moreover, the motive to allege by the prosecution not be motive of kill the deceased Khan Mohammad. He has further contended that no evidence was laid by the prosecution to prove the abscondence and that even the Investigating Officer has not stated in Court that he searched for the accused but he was not available. The fact that they sent a telephonic message to Perumal Police for the arrest of the appellant goes a long way to show that they knew that appellant was available in Tando Mitha Khan. That no proceedings under sections 87 and 88, Cr.P.C. were taken against the appellant and that he was arrested on 8th day of incident and therefore the prosecution had failed to prove the abscondence. He has further contended that the judicial confession was neither true nor voluntary and the fact that the incident took place in Taluka Thatta and number of First Class Magistrates were available at Thatta but the accused was produced for the confession before Mukhtiarkar at Sujawal goes a long way to show that the accused did not make confession. There were cuttings in the confession specially with regard to a question asked from the appellant that "Whether he was promised by the Police that if he makes a confession he will be made as an approver and will be let off". And the reply was "Yes Sir", but it was subsequently scord off by the Mukhtiarkar and written 'No Sir'. No signature of the appellant was obtained on this correction. He has also contended that there were other cuttings in the confession as well which do not bear the signature of the appellant. That the confession was in conflict with the prosecution case. That there was no first warning and therefore even on this score alone no reliance can be placed on this confession. That the evidence of recovery of gun from wardat could not be used against the appellant. That the ocular evidence of P.W. Mohammad and Baboo Shah was contradictory, interested, inimical and unreliable. The evidence of complainant Khuda Bux and PW Moula Bux was hearsay evidence and could not be reliable. Mr. Abdul Wali Makhdoom learned counsel for the State has contended that there was ocular evidence of PW Mohammad who had no enmity with the accused and it was corroborated by PW Khuda Bux and Baboo Shah and Moula Bux. That there was motive for the appellant to kill deceased Khan Mohammad and that there was evidence of abscondence, and therefore he has supported the conviction of the appellant. Mr. Aftab Ahmed,Alvi Advocate for the complainant has adopted the arguments advanced by the learned counsel for the State. As far as the evidence regarding motive is concerned, it has been alleged in the F.I.R. by complainant Khuda Bux that deceased Khan Mohammad had informed him about a week before this incident that Nooro Shah son of a brother of Baboo Shah was pressing that he should leave the service of Baboo Shah as his uncle Baboo Shah and the residents of village had confidence on him and nobody cares for them (accused). In the Court the case of the complainant was that 4/5 days before this incident his brother Khan Mohammad had come to his house and told him that Noor Mohammad Shah nephew of Baboo Shah has been pressing him by saying that his Uncle has made him responsible for everything which was not liked by him and he wanted Khan Mohammad to give up the service and go away. PW Baboo Shah has deposed in his deposition in Court that his Haries and Noor Mohammad himself had complained once that Khan Mohammad did not take the accused in his jeep, and he had replied that Khan Mohammad was a faithful servant which annoyed the accused. In cross‑examination he has deposed that the deceased had complained to him some days before this incident when the accused had asked him to quit services of Baboo Shah, but he had stopped him and asked him to stay as he was looking after his affairs and he was injured in an incident and needed his help. Khan Mohammad did not tell him the reason for which the accused asked him to leave the service. P.W. Mohammad has deposed that there was conflict between accused Nooro Shah and Baboo Shah. Surprisingly enough PW Mohammad and Bahoo Shah had not said a word about the above motive in their 164 Cr.P.C. statements and therefore their evidence in Court regarding motive appears to be afterthought and improvement over their earlier statement and therefore their statement in Court could not be relied. In the case of Hadi Bux v. The State (P L D 1963 Kar. 805) it was observed by a Division Bench of this Court that "Witness improving his version in Court to strengthen prosecution case, statements subsequently made cannot be relied upon." In view of the above legal position the evidence of P.Ws. Mohammad and Baboo Shah appears to be clearly an improvement and therefore cannot be relied upon. After excluding the evidence of Mohammad and Baboo Shah on the point of motive we are left with the evidence of complainant Khuda Bux only. On the one hand he was brother of the deceased and on the other hand the motive mentioned by him neither appears to be convincing nor it is so strong which could prompt the accused to kill decessed Khan Mohammad. From the trend of cross‑examination and the statement of accused it is clear that the relations between Baboo Shah and accused were strained over possession of land and therefore the accused could not expect any respect from the servants of Baboo Shah. Moreover, the evidence shows that there was only a single incident which was also not such that accused could go to the extent of killing Khan Mohammad. In view of the above discussion we are of the view that the motive advanced by the prosecution could not be the motive fork committing murder of deceased Khan Mohammad. So far the question of abscondence was concerned, no evidence has been laid by the prosecution on this point that the accused had absconded after committing murder of Khan Mohammad. Neither any Mashir of arrest nor the Police Officer who arrested the accused has been examined. Even the Investigating Officer has not said a word that he had gone in search of the accused but he was not available at the place where he ordinarily should have been present. The fact that the Thatta Police had sent a telephonic message to Perumall Police for the arrest of the appellant shows that they knew that the appellant was available in Tando Mitha Khan with his Mureeds. Moreover, the explanation given by the accused was probable and no proceedings under sections 87 and 88, Cr.P.C. were taken in the case and the accused was arrested on the 8th day of the incident. In the case of Thanghai v. The State 1969 P Cr. L J 439 it was observed by a Division Bench of this Court that: ‑-- "the appellant was arrested on the 12th December. 1966 from Kashmor Town by Sardar Mohammad but the prosecution did not examine Sardar Mohammad. Therefore, the only evidence in support of the alleged abscondence is the statement of the Investigating Officer P.W. Abdul Ghaffar A. S. I. who had stated in his evidence that the appellant was an absconder. If the appellant was an absconder, proceedings must have been taken against him under sections 87, 88 of the Cr.P.C. but the prosecution did not produce any evidence to show that action had been taken against the appellant under sections 87, 88, Cr.P.C. Therefore, the prosecution has failed to prove that the appellant was absconder. In the above reported case the incident had taken place on '20th May, 1966 while the appellant was arrested on 12th December, 1966. In view of the above discussion and the legal position, the prosecution has failed to prove that the appellant had actually absconded and absolutely no evidence was laid on this point. The explanation given by the appellant could be probable and therefore, the evidence of abscondence is ruled out of consideration. Now adverting to .the judicial confession, it is an admitted position that incident took place in Thatta Taluka and there were number of Magistrates working at Thatta but surprisingly the appellant was taken to Sujawal where his confession was recorded. There is no explanation from the prosecution as to why the appellant was not produced before any Magistrate at Thatta but was taken to Mukhtiarkar and F. C. M., Sujawal for getting his judicial confession recorded. However, Mukhtiarkar and F.C.M., Sujawal when asked in cross-examination has explained that he was informed by the Investigating Officer that the Mukhtiarkar and F.C.M., Thatta was not available and, therefore, accused vas being produced before him. This was hardly an excuse for producing the accused before a Magistrate at Sujawal when there were number of other Magistrates including Civil Judge and F.C.M. working at Thatta. It was also contended by the learned counsel for the appellant that there was no first warning given to the appellant and even learned Magistrate did not make a real endeavour to find out that the confession was true and voluntary. In this connection the learned counsel has relied upon Abdul Haleem v. The State 1984 P Cr. L J 611 in which one of us (Ajmal Mian, J.) was a party and it was observed as under: ‑ "The view that crystalises from the above authorities is that Courts must look for strict compliance of subsection (3) of section 164, Cr.P.C. before proceeding to determine the voluntary character of the confessional statement. It has been noticed that the Magistrates who are charged with a duty of recording confession do not take the process of recording confession seriously with the result that they invariably act in mechanical way without applying their mind as to the legal prerequisites to be observed and the manner in which their compliance is to be made. It is high time that we should reiterate (he procedure which is followed in recording confession for their guidance. Magistrate would be well‑advised to follow as the procedure which is given below:‑ As soon as accused is produced for confession, his handcuffs should be removed and all the police officers should be turned out from the Courtroom. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the police who had produced him before Court but would be remanded to judicial lock‑up. He should then be given sufficient time to ponder over the matter. Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then following questions should be put to him: ‑ (i) For how long have you been with police? (ii) Has any pressure been brought to bear upon you to make confession? (iii) Have you been threatened to make confession? (iv) Has any inducement been given to you? (v) Why are you making this confession? (vi) Have you been maltreated by police? After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such questions to him as are given in the printed form and then he should proceed to record his confession in verbatim." The reading of the confession does support the contention of the learned counsel that while administering first warning to the appellant before giving any time for reflection the learned Magistrate did not inform him that he was before a First Class Magistrate nor that whether he makes a confession or not, he will be sent back to the judicial custody, and that as to why he was making the confession. Moreover, the confession shows that there were cuttings in confession and the same were not signed or initialled by the accused although the Magistrate himself had put his signature at the place of cuttings. In this regard it will be appropriate to mention that a question was put from the appellant while giving him second warning as to 'whether you have been promised by the police that if you make confession you will be made as approver and thereafter acquitted and the reply was 'Yes Sir'

but later on word 'Yes Sir' appears to have been scored off and word 'No Sir

has been written. This cutting bears the signature of the Magistrate himself but does not bear the initial or signature of the accused. There are also other cuttings which have been brought on record by the Court itself while putting questions to the Magistrate. Although the Magistrate has been examined in the Court and he has stated that he had given two warnings to the accused one before the time for reflection was given and the other after the time for reflection was over but we cannot lose sight of the fact that the confession was recorded on' 16‑1‑1985 while the Magistrate was examined on 24‑2‑1987 i.e. after more than two years and, therefore, it was impossible for him to remember what warnings he had given to the appellant before the time for reflection was given to him. In Ramzan v. The State P L D 1966 Kar. 242 it was observed by a Division Bench of this Court that: "The Magistrate, however, in his statement in the trial Court did state that he had warned the appellant and Mooso co‑accused that he was a First Class Magistrate and that they were not bound to make a confession and if they did so, it would be used as evidence against them. From the record it is not clear if the Magistrate did give such a warning. In view of the above fact the above confessional statements are inadmissible in evidence." In view of the above discussion it is clear that the confession allege to have been made by the appellant cannot be relied and as such is ruled out of consideration. So far as the recovery of gun from the Wardat was concerned, the same was a licenced gun of the father of P.W. Baboo Shah. There is no allegation that the gun in question used to remain in possession of the appellant. On the other hand, the case of appellant is that P.W. Baboo Shah was retainer of said gun and it used to remain in his possession. Moreover, the empties were not secured from the Wardat but they were secured from the barrels of the gun. Be that as it may, it could not be used as piece of evidence against the appellant as it was not recovered from him. In this connection it will be appropriate to refer a case of Ameenullah v. The State P L D 1982 SC 429, observations at page 445 wherein it was observed by their Lordships of the Supreme Court that: ‑ "the recoveries made at the scene of occurrence although sufficient to establish that the deceased was killed in the manner stated by the prosecution at the spot, that evidence of the injuries found on the body of the deceased does not have the effect of connecting them with accused sufficiently to inculpate them." In view of the above discussion the recovery of gun from Wardat could not be used as piece of evidence against the appellant. As far as the ocular evidence was concerned the prosecution has relied upon the evidence of P.W. Mohammad Machhero who was sleeping in the same Otaq where deceased Khan Mohammad was killed and P.W. Baboo Shah who had come or, cries and gun shots. The evidence of these two witnesses has been criticized by the learned counsel for the appellant on the ground that P.W. Mohammad Machhero was working as servant of P.W. Baboo Shah since 7/8 years and that P.W. Baboo Shah had enmity with the appellant over the land. It was further contended that although Baboo Shah was closely related to the appellant but the fact that he supported the prosecution upto the last goes a long way to show that he was out to eliminate the appellant so that he could use up the land of Siddiq Shah father of the appellant. That the witnesses have made improvements over their 164, Cr.P.C. statements and their evidence also appears to be unnatural. The evidence of P.W. Mohammad Machhero shows that he was having a quilt‑ on him while he was sleeping as it was winter season, and that when he got up on gun reports he saw the appellant going out and keeping the bun outside the Otaq. On his cries and gun reports P.W. Baboo Shah came who was followed by other villagers and that Baboo Shah had also seen the appellant running away. The case of P.W. Baboo Shah was that he was sleeping inside his house and got up on the gun reports and cries of Mohammad Machhero. He went to the place of Wardat and found the appellant running away As far as the enmity was concerned, Baboo Shah has stated in examination‑in‑chief that he owns land measuring about 200 acres which is in the name of his father of which he is General Attorney. In cross‑examination he has deposed that Siddiq Shah father of Noor Mohammad Shah accused is his brother. Siddiq Shah does not hold any land in his name, but the land in the name of his father was privately partitioned and his share is in his own possession. He denied that his (Siddiq Shah) share is also in his possession. The case of the appellant in his statement on oath was that his wife oath son, are in custody of Baboo Shah. His grandfather had distributed his land among his sons. The land of his father was in possession of Baboo Shah. His father met with an accident in 1983 and he demanded money from Baboo Shah for the treatment of his father but he refused to give anything. In 1984 Baboo Shah contracted second marriage and thereafter he stopped paying maintenance allowance to them. He complained to various persons including to his grandfather but to no avail. The learned A.P.P. while cross‑examining the appellant suggested a question to the appellant that he had falsely alleged that Baboo Shah had stopped paying maintenance allowance and refused to pay when demanded. He also denied a suggestion that Baboo Shah has been looking after requirement of his family. From the above facts it is clear that the relations between P.W. Baboo Shah and appellant were strained and there was enmity over the land. One cannot overlook the fact that Baboo Shah being uncle and father‑in‑law of the appellant still supported the prosecution even in the Sessions Court, which clearly points out to the fact that Baboo Shah was out to see that the appellant was eliminated from the scene, specially because he was the only son of Siddiq Shah. Siddiq Shah was a crippled man and, therefore, he could then conveniently grab the share of land of Siddiq Shah. In this view of the matter P.W. Mohammad Machhero was admittedly servant of Baboo Shah since 6/7 years and the fact that he made improvements in his evidence at the trial, clearly shows that he was acting in accordance with the wishes of his Master. P.W. Mohammad as well as Baboo Shah did not state a word about the motive in their 164, Cr.P.C. statements but at the trial both of them have deposed about the motive. It was the case of P.W. Muhammad Machhero in Court that about 15/20 persons had come at the Wardat from the village but none of them was cited and examined as a witnesses. In 164, Cr.P.C. statement P.W. Mohammad Machhero did not state that Baboo Shah had seen the accused running away but he stated so at the trial. Likewise P.W. Baboo Shah had stated in his 164, Cr.P.C. statement that on hearing gun shots and cries he went towards his Otaq which was at the distance of 200 paces from his house and he was informed by his servant Mohammad Machhero that Noor Mohammad Shah fired two gun shots on driver Khan Mohammad and was running away. In the meantime other people came there. He sent them behind Nooro Shah to catch him. He did not state in his 164, Cr.P.C. statement that he had seen the accused from his back while running away which was his case in the trial Court. Even according to 164, Cr.P.C. statement of Baboo Shah the villagers had chased the accused in order to catch him but none of them has been examined. It was a winter season and it is the case of P.W. Baboo Shah that he was sleeping inside his house which was about 200 paces away from the Otaq where incident took place. He got up on the gun reports and cries and came towards the Wardat. It must have been a matter of minutes for a person to fire at the deceased and running away, and under these circumstances of the case it was impossible for Baboo Shah to have seen the appellant even while running away. Even the learned trial Judge has not considered P.Ws. Mohammad Machhero and Baboo Shah as eye‑witnesses but according to him they had seen the accused running away. P.W. Mohammad Machhero was also sleeping inside the Otaq and had quilt on him when he heard gun shots. In such a situation he must have been frightened and, therefore, his evidence with regard to identification of the assailant could not be implicitly relied upon. P.W. Mohammad Machhero cannot be said to be an independent person as he is servant of P.W. Baboo Shah who was hostile to the appellant. In the case of Mir Khan v. The State 1976 P Cr. L J 779(2) it was observed that: ‑ "a witness who was tenant of complainant would also be considered as partisan and interested person." In the present case since P.W. Mohammad Machhero was servant of P.W. Baboo Shah who was hostile to the appellant, he could not be said to be an independent witness. The evidence of P.W. Moula Bux shows that P.W. Baboo Shah had gore to him and given him the facts of the incident. Moula Bux then went to the complainant and informed him about the incident. They came to the Wardat alongwith others and were given facts by P.Ws. Mohammad Machhero and Baboo Shah. In view of the fact that the evidence of complainant Khuda Bux and Haji Moula Bux is based on the information given to them by P.Ws. Baboo Shah and Mohammad Machhero whose evidence has been found to be interested, the evidence of Haji Moula Bux and complainant Khuda Bux would not strengthen the prosecution case in any way. In the case of Ali and 3 others v. The State 1969 P Cr. L J 28 it was observed that: ‑ "the direct evidence which is otherwise false or unreliable, no amount of corroboration can rehabilitate it." Mr. Aftab Ahmed Alvi learned counsel for the complainant has relied upon a case The State v. Manzoor Ahmad P L D 1966 SC 664 and contended that the evidence adduced by the prosecution was sufficient to sustain conviction of the appellant. We are afraid the contention is untenable. The facts of the reported case relied upon by the learned counsel are with utmost respect distinguishable as in that case the accused had set up the plea of alibi. He had remained as absconder for two years. The room from where dead body was recovered was in exclusive possession of accused on the day of incident and the relations between the deceased and the accused were strained, due to love affair with one Saadat Sultana who was betrothed with the deceased. That the deceased was last seen alive in the company of accused when they both entered in the building in question and the accused was seen leaving the building alone about an hour or so later. The accused was acquitted by the High Court but in appeal against acquittal he was found guilty and was convicted by the Hon'ble Supreme Court. However, it was also observed by their Lordships in this decision that:‑ "It is no doubt true that in' a case resting wholly on circumstantial evidence the Court must, as observed by Wilis in his Treatise on Circumstantial Evidence, remember that the 'processes of inference and deduction are essentially. involved‑ frequently of a delicate and perplexing character liable to numerous causes of fallacy'. Mere suspicion will not be sufficient to justify conviction. Before the guilt of the accused can be inferred merely from inculpatory circumstances those circumstances must be found to be incompatible with the innocence of the accused and 'incapable of explanation upon any other reasonable hypothesis than that of his guilt'. It is also equally well‑settled that the circumstances sought to be relied upon must have been established beyond all doubt." In view of the above discussion we are of the considered view that the guilt 'of the appellant has not been established beyond reasonable doubt, and, therefore, while giving the appellant benefit of doubt, the appeal is allowed, his conviction and sentence are set aside, and he is acquitted of the charge. He shall be released forthwith if not required in any other case. The reference regarding confirmation of death sentence is rejected. M.Y.H./S‑153/K Appeal allowed.