1977 P Cr (PLP)

G. M. SHAH. J.‑‑The respondents were tried by the learned Sessions Judge, Khairpur for offences under section 302/34, P. P. C., and he acquitted them all by the judgment dated 23‑5‑1975. Against the judgment of acquittal the State has filed this appeal under section 417, Cr. P. C,

2. The prosecution case, in brief, is that the deceased Makhan Lashari was the step‑brother of the complainant Haji Din Mohammad and was the headman of his village. They were residing in village Makhan Lashari, taluka Mirwah. On 18‑1‑1971, the deceased had gone on horse back to attend the marriage ceremony of the son of Haji Khuda Bux in his village, which was about two miles away, but had not returned to his village till the next morning. At abut 8‑30 a. m. while the complainant was sitting in his house, he received information, through Nabi due, son of Makhan Lashari that his father's horse was seen grazing in the "loosen" cultivation in their garden, but his father was not with the horse. On receipt of this informa tion the complainant accompanied the boy and went himself and saw that the horse was in the garden, and there was no trace of the deceased. There after the villagers collected and the complainant alongwith Mohammad Mithal, Bahawal, Lashiris and other villagers went out to look for the deceased. They traced the hoof marks of the horse, which led them towards the Kandyari road. They had hardly covered a distance of about a mile, when they spotted the dead body of deceased Makhan Lashari. It had hatchet injuries on its head and other pares of the body. They found some blood at the vardat. They suspected that he had been murdered. The complainant, therefore, beaded for the Police Station Marwah. On the way, he met Haji Bhahoo Jarwar and Allahdino Jarwar, whom he narrated the facts of what he had witnessed and asked them to go to the Wardat. He reached the Police Station on 19‑1‑1'071 at about I1‑30 a. m. and lodged the report, in which he had expressed his suspicion upon Ghulam Shabbir Master, Jaro Lashari and Ghulam Shabbir Lashiri, on the ground that they were well‑known womanisers in the community, and had kept their own family women without marriage in their houses, while they themselves were enjoying with other women outside. The deceased who was tie Nekmard of the village had objected and reprimanded them and had advised them to have the marriages of their own women arranged, to provide them respectable homes. The deceased had thus advised them, on several occasions which fact, had annoyed them. The complainant therefore, suspected them, that due to the ill feelings they had murdered the deceased. The police registered the case, and took up the investigation. The A. S. I. P. incharge of Police Station, Mirwah, on receipt of the report (Exh. 10) proceeded to the place, where the dead beady of the deceased was lying and prepared the Mashirnama in presence of Banhon Khan (P. W. 4) and Hussain Bux under the Mashirnama Exh.

12. After completing the formalities, he sent the dead body for post- mortem examination. He examined witnesses Mohammad Nawaz and Pir Bux. In the meantime, the S. H. O. Ghulam Mohammad (P. W. 12) arrived at the place, where the dead body was lying and took over the investigation. He‑ verified the statements recorded by Hassan Raza (P. W. 10). The S. H. O. proceeded to the house of P. W. Piral, where the police party was taken by Piral himself. They found the blood inside the room of the house of Piral. They also found burnt ashes there. From the thatched roof of the room, they secured one pillow cover, which was, partly, burnt, and had small blood stains on it and it was secured by the police. They also found the detached loose legs and arms of the cot from behind the hut, which had blood stains. The police also secured some blood and human hair from the place. All these articles were taken possession of and separately sealed under the Mashirnama Exh.

24. The S. H. O. Ghulam Mohammad (P. W. 12) recorded the statements of Mst. Sharifan (P. W. 6) and Mst. Dana (P. W. 7) and Mst. Sardaran (not examined) as they were the inmates of that house, and were stated to be present at the time of occurrence.

3. On 20‑1‑1971, the police examined Haji Banhoon Khan P W. 4, Allahdino Pehalwan, Mohammad Mithal, Bahawal, Nabi Bus and Hadi Bux. On 21‑1‑1971 Saeed Khan, Mitho, Ghulam Ali, Ahsan. Jaro and Saleh were examined. On 22‑1‑71 Haji Illahi Bux, Khan Mohammad and Akbar Ali Khan were examined. Oil the same day, Akbar Ali Khan produced respondents Illahi Bux, Ghulam. Shabbir and Chuttal, who were interrogated and arrested. A little thereafter, the respondents Mohammad Sadiq and Anwar Ali, arrived at the Police Station, where they were arrested in presence of the Mashirs, under the Mashirnama Exh.

25. Respondent Mohammad Sadiq took the police to his shop, from where he produced one hatchet, one loin‑cloth and: one shirt, which were blood‑stained. They were secured and sealed under the Mashirnama Exh.

26. Respondent Anwar took the police to his house and from the earthen bin, he produced one Shawl, one Shalwar and one hatchet, which were all blood stained. They were secured and sealed under the Mashirnama Exh.

27. Respondent Ghulam Shabbir then took the police to his house, which was deserted one, at some distance from the house, which he was occupying, from where, he produced the cradle, which had some blood stains on it. He also produced one shirt, loin‑cloth and a hatchet, which were all blood‑stained. They were secured and sealed under the Mashirnama Exh.

28. Respondent 1llahi Box then took the police to his: house and from the earthen bin he produced one Shalwar, shirt End a hatchet, which were all blood‑stained. They were secured and sealed under the: Mashirnama Exh.

29. Thereafter all the five respondents pointed out the hou4e of Piral alias Pir Bux P. W. which was inspected under the Mashirnama Exhs. 30 to 34.

4. On 26‑1‑1971 respondent Anwar Ali was produced for his judicial confession before the Mukhtiarkar and F. C. M. Mohammad Adil P. W.

1. After completing the formal investigation, the case was challaned in the Court on 24‑5‑1971.

5. The eye‑witness account was furnished in this case by Mst. Sharifan P. W. 6 and Mst. Bhana P. W.

7. In her statement Mst. Sharifan, who is the daughter of Pir Bux (P. W. 8) had stated that she was in the house of her father alongwith her mother Mst. Sardaran and her sister Mst. Bhana on the night of 18th and 19th January, 1971. After they had taken their night meals, the deceased Makhan Lashari had come there on the horse back. He was related to the family and used to visit them. Mst. Sardaran mother of the two witnesses, Mst. Sharifan and Mst. Bhana, had adopted him as her brother. After they had gone to sleep in their house, respondents Anwar Ali, Ghulam Shabbir, Mohammad Sadiq and Illahi Bux came there armed with hatchets. They caused hatchet injuries to the deceased, who died instantaneo usly. When they raised cries, the respondents threatened them. Ghulam Shabbir respondent then went out, while the remaining three respondents kept watch over them. After some time, respondents Ghulam Shabbir and Chuttal brought the cradle. They placed he dead body of Makhan Lashari in the cradle. They untied the horse and placed the cradle, containing the dead body, over the horse back. Thereafter respondents Ghulam Shabbir and Chuttal scrapped and cleaned the blood from their house. All the respond ents then left the house. The respondents then removed the `wan' (rope) of the cot, which was blood‑stained and burnt it out side the house. Before leaving the place, the respondents put the latch from outside the door, when the witnesses were inside the room. Next morning (19‑1‑1971) Pir Box (P. W. 8), who was not at home in the night, as he had gone to attend the marriage of the son of Khuda Bux, arrived there. He opened the latch of the room from outside. On his enquires, he was informed by his daughters Mst. Sharifan and Mst. Bhana about the murder of the deceased, and the manner in which the respondents had killed him.

6. The case of the respondents on the other hand, war of denial. In his statement before the Committal Court, as well as, the Court of Session, respondents Chuttal had contended that respondent Illahi Bux is his son and Ghulam Shabbir is his nephew, and all of them were falsely implicated due to political differences at the instance of Illahi Bux Bambhan. About the confession of respondent Anwar Ali they all pleaded that it was a false one and was obtained by police pressure. Similar were the statements of respon dents Illahi Bux, Ghulam Shabbir and Mohammad Sadiq, whereas respondent Anwar Ali had pleaded innocence and had stated that the confession from him was obtained by the police under pressure and giving him beatings, as well as, to his women‑folk. He further claimed that the confession was neither voluntary nor true.

7. The death of the deceased is not disputed. He had died an unnatural death. The evidence of Dr. Mushtaq Ali, coupled with the eye witness account of P. W. Mst. Sharifan and Mst. Bhana leave no doubt that he had died of the hatchet injuries received by him. On his person, he had, as many as, 12 incised injuries. In the opinion of the doctor, all the injuries, individually and collectively, were sufficient to cause death in the ordinary course of nature.

8. The pieces of evidence relied upon by the prosecution are:‑ (a) Judicial confession of respondent Anwar Ali. (b) Occular evidence of eye‑witnesses Mst. Sharifan P. W. 6 and Mst. Bhana P. W. 7. (c) Circumstantial evidence of recovery of blood‑stained clothes and hatchets from the possession of respondents Illahi Bux, Mohammed Saddiq, Ghulam Shabbir and Anwar Ali: (d) Extra judicial Confession of respondent Illahi Bus, Ghulam Shabbir and Chuttal. (e) Motive.

9. In support of the judicial confession Mohammad Adil (P. W. 1) was examined who had recorded the confession on 26‑1‑71 of respondent Anwar Ali. The confession is in the following words: ‑ "I, Sadik Lashari, Ghulam Shabbir Lashari and Illahi Box Lashari went together to the entrance of the house of Piro Lashari and entered the house and hid ourselves behind the manure. 1 saw, that in the room of Piro Lashari, Makhan was reclining on the cot and three women were sitting on the ground in front of him. Ghulam Shabbir told me to go with him to kill Makhan Lashari and no body else was there. I refused to go and told him to go and kill Makhan. On my refusal all the three told me, that if I did not go, they would kill me there, and leave Makhan Lashari. Due to fear I agreed to go, but told them to go ahead and I would follow them. Then accused Ghulam Shabbir led us all and gave hatchet injuries on the neck of the deceased. Accused Illahi Bux Lashari gave hatchet blows on the face and Sadik Lashari gave hatchet blows on the head. 1 stood on the door of the room, when Ghulam Shabbir asked me to give hatchet blow on which I told him, that they had already murdered the deceased, and what blow should I give him. Ghulam Shabbir told me, that if I did not give the hatchet blow to Makhan Lashari, they would kill me and I entreated them not to kill me, as they had already killed Makhan Khan. At that time, the three women were present. Then Ghulam Shabbir asked me, Sadik, Illahi Bux to sit outside the room and he would bring the cradle. After some time Chutto and Ghulam Shabbir brought the cradle and we all went inside the room and took the dead body of Makhan Khan in the cradle and Chutto Lashari untied the horse of Makhan Lashari and brought it and asked us to go ahead. We took the dead body of Makhan Khan and left it in the Khabar tree. Chutto also left the house in the filed and told me that if I gave the evidence against them, they will kill me." The perusal of this confession would indicate that it is exculpatory and cannot be considered against the maker of it. Nor it has any evidentiary value against the respondents. In order to ascertain, as to how far the confessions were true, voluntary and credible, the trial Court, in my view, had very rightly emphasised that there were certain very salient features and material circumstances, which rendered the evidentiary value of the confession, as doubtful. I would, therefore, discard this piece of evidence and place no reliance upon this confession.

10. The eye‑witness account is furnished by Mst. Sharifan P. W. 6 and Mst. Bhana P. W.

7. In their statements they have admitted that the police had arrested their father Fir Bux (P. W. 8) Jaro and Jangle, as well as, her brother, as accused persons, for the murder of the deceased. They all were let off after their statements under section 164, Cr. P. C. were recorded. She further stated that police had detained them all, from the day of the occurrence, till their statements were recorded, anti all the respondents were also detained alongwith them from the date of the occurrence. From the perusal of her statement, and the background of the case, it is evident that this witness was an accomplice and whatever statement she had given in the lower Court, as well as, at the trial cannot be accepted, without corrobora tion, against the respondents. Same is the case in respect of the state ment of Mst. Ghana (P. W. 7). Their evidence has beets appropriately discussed, dealt with and disposed of as doubtful by the learned trial Judge for the purpose of reliance, unless it was corroborated in material particulars by other independent and reliable evidence. As is apparent from the statements of these two girls, they seem to be of loose character and the version narrated by them does not inspire confidence. It was their house, where the deceased was murdered. Blood was found inside their room, as well, as outside. It would, therefore, be reasonable to believe that Mst. Sharifan and Bhana, as well as, their mother and father Pir Bux (P. W. 8) were deeply involved in the murder of the deceased, The explanation and theory advanced by Mat. Sharifan, as regards the presence of the deceased in their house does not appeal to common sense that late in the night, the three women would be waiting and sitting in the room, where the deceased had subsequ ently reached, unless there was some motive behind it. Assuming that the three women were waiting for the deceased, they could have easily run out and raised cries to collect the neighbours for help. The narration of the occurrence given by the two sisters, to me, appears to be absolutely absurd and false. The learned trial Judge, while discussing the merits of the case, has very rightly observed that the nature and the method in which the murder was committed, clearly showed that either the eyewitnesses Mst. Sharifan, Mst. Ghana and their mother, were not present at all, and had, moat probably gone to attend the marriage, where their father (Exh. P. W. 8) Pir Bux, had gone to attend, or the murder was committed with their connivance. He further observed that the eye‑witness account was false and they had tried to cover up soma body. I would therefore, reject the eye‑witness account stated by the two witnesses viz. Mst. Sharifan and Mst. Bhana.

11. Next is the circumstantial piece of evidence of recovery or blood stained clothes from the possession of respondents Illahi Bux, Mohammad Sadiq, Ghulam Shabbir and Anwar Ali. After going through the evidence led by the prosecution, it would appear that the recoveries had already been made by the S. H. O. Ghulam Mohammad (P. W. 12). The Mashir of recoveries was Nabi Bux (P. W. 11). Admittedly he did not belong to the locality. He resides 8 miles away from the place of recovery. Hp was present with the police, all along the investigation. His explanation of being present there in the village was for collection of money from one Punhal, who had purchased cattle from him sounds rather, ridiculous and unnatural. The learned trial Judge had considered this aspect of the evidence of recovery and had discarded it, as not worthy of reliance. As per the statement of S. H. O. Ghulam Mohammad, the respondents had initially pointed out the house of Pir Bux, which was inspected. Mashirnamas Exhs. 30 to 34 were prepared; but nothing was secured from that house. Likewise, it is also not believable, that the respondents who on one hand, were so clever to remove all the traces of evidence viz. blood stains on the ground, and blood‑stained bedding etc. would keep the incriminating articles safe with them in their houses viz. blood‑stained clothes and hatchets, which were stated to have been secured after about 3 days of the occurrence and were kept unwashed. It is difficult to accept the evidence of recovery, which for all purposes, seems to be un natural and devoid of common sense.

12. About the extra‑judicial confession, respondents Illahi Bux, Ghulam Shabbir and Chuttal, it is stated that they had made extra‑judicial confession before Illahi Bux Bambhan in presence of P. W. Akbar Khan. As against this, the respondents had pleaded political enmity with Illahi Bux Bambhan. In all fairness, Illahi Bux Bambhan should have been examined as a witness by the prosecution. How Mohammad Akbar Khan (P. W. 9) happened to be present these, in order to hear the extra judicial confession, made by the respondents, is another mystery, which has not been adequately explained. In any case, this witness can safely be classed as a chance witless. Surpris ingly enough, this witness states that all the three respondents had made a joint confession before them. What evidentiary value can be attached to a joint confession. Such extra judicial confessions are not safe to rely upon. A retracted extra‑judicial confession cannot corroborate a retracted judicial confession. One piece of tainted evidence cannot be utilised to corroborate other piece of tainted evidence. I will therefore place no reliance upon such a sweeping statement, which is characterised as extra judicial confession.

13. Lastly is the evidence of motive. There is no independent evidence adduce) by the prosecution in support of the motive. The only evidence that is brought on the record is by way of the judicial confession of respond ant Anwar Ali, which was recorded after 4 days of his arrest. I have already rejected the confession, as being self‑explanatory. I will not consider this piece of evidence of motive either against Anwar Ali or against the other respondents.

14. As a result of the above discussion, I find that the judgment of the trial Court is based on sound reasoning. It is not perverse nor it is contrary to the evidence on record. I find no merit in this appeal and would dismiss lt. AGHA ALI HYDER, J.‑--I agree. Appeal dismissed