P L D 1956 (W (PLP)

Additional Advocate General for Respondent. MUHAMMAD BACHAL, J.‑The appellant has been convicted, in disagreement with the assessors, by the 2nd Additional Sessions Judge, Nawabshah, under section 302, P. P. C., and in view of his youth sentenced to transportation for life. The question of enhancement of sentence is also before us for consideration. The incident is alleged to have occurred on the night be tween 14th/15th March 1955, at Deh Danbir Taluka Moro near the passage going from Moro to Hari Soomro village. Sunharo, brother of Saleh, deceased, went to the Police Station Moro, 8 miles from his village. His first information was recorded at Moro on the 15th March 1955, at 10 a.m. to the effect that about 5‑6 months back he and his brother Saleh with their wives migrated from Ghulam Chandio's village to Haider Chandio's village where after about a month the accused and his mother came and told them to migrate to their village Haji Soomro village where they would find much work. 2‑3 days thereafter they migrated Haji Soomro village and stayed in the house of the accused. About l months thereafter he and his brother Saleh suspected that Saleh's wife was on illicit terms with the accused and therefore wanted to migrate. The accused, Ghulam Husain. Tajo, Kutubdin and Daud entreated them not to migrate and assured them that they were their helpers and remonstrated with the accused. Because of these assurances they continued staying in the village. Some days thereafter Saleh complained to him and his wife that his wife had illicit connections with the accused and, therefore, asked them to migrate. But Ghulam Hussain told them that he would not allow them to migrate unless they paid him back his loan of Rs.

100. His son‑in‑law Dhanibux came to them and advised them to migrate. About 4 days before his brother Saleh went to get money from Ghulam Chandio's village. At about dawn Tajoo told them that they were wanted by Kutubdin. They went there and found the accused, Kutubdin and Daud sitting there. Kutubdin told them that the accused Tajoo and Daud woke him up and told him that the accused had committed the murder of Saleh and asked them to forgive him on getting compensation. He and his son‑in‑law Dhanibux told them that he would not report if they showed the mad dead body. The accused then accompanied them to a sand dume and pointed out a dead body which was identified to be of Saleh. He left Dhanibux near the dead body and came to Moro where he met Hyder who informed him that he had come on the previous evening and met Saleh, Ramzan and Ghulam Husain and that Saleh had told him that he had come to fetch Rs. 100 from his village as Ghulam Husain would not allow them to migrate. He also told them that Ghulam Hussain and the accused told Saleh to make haste to go to the village as it was getting late and that all the three left by the road going to Bandhi. Abdullah, A. S. I., after recording the report proceeded to Haji Soomro's village. He secured the accused who was sitting tied and was produced by Kutubdin, Daud and Tajoo, and secured a shirt which had some blood‑stains, but the Chemical Examiner did not find any human blood‑stains on the shirt. A. S. I. went at a distance of about 20‑25 paces where a dead body was lying concealed under Dhingers (thorny bushes). Inquest was held over the dead body which was sent to Moro dispensary. The medical evidence shows that the deceased had two wounds on the neck caused by a hatchet each of which was identically sufficient to cause death in the ordinary course of nature. The accused produced from a Khabar tree at a distance of 5‑10 paces a blood stained turban and a loin cloth in which dates were tied. These clothes were identified by Sunharo to be of his deceased brother Saleh. The accused produced a blood‑stained hatchet from Khabar trees at a distance of about one athas away from the place of murder. The Chemical Examiner found human blood‑stains on the clothes and the hatchet. A. S. I. Examined Dhanibux. Saleh's wife Mst. Maryam, Taj Muhammad, Kutubdin and Hyder. On the next day he examined Ghulam Qadir who in an identification test held on that day identified the accused. On the 17th March the accused was taken to Moro where he made a confession before the Sub‑Judge and First Class Magistrate of Moro. The accused denied the prosecution version and stated that he had been implicated because Sunharo had men tioned the names of Ghulam Husain, Tajo, Kutubdin and Daud as accused in the first report. He retracted from the confession which he stated was born of police pressure. The evidence regarding the pointing out of the dead body by the accused and the securing of blood‑stained shirt has to be excluded as the dead body, as stated in the first report, had been discovered before the first report was recorded and the Chemical Examiner did not find any human blood‑stains on the shirt secured from the person of the accused. The evidence on Ghulam Qadir having identified the accused in the test is of no value as he did not know the deceased and it cannot, therefore, be said that the accused was last seen with the deceased before the murder. The conviction of the accused, therefore, rests on the evidence regarding motive. Hyder seeing the accused in company of the deceased before the murder, extra judicial confession, production of blood‑stained hatchet and the deceased's clothes by the accused and the confession from which the accused has retracted. As the confession is the principal item of evidence against appellant it is reproduced in extenso :‑ Deceased Saleh was my caste fellow. About 5‑6 months back he came and lived in adjoining house in my village and cultivated land. Since then he was pressing my mother Mst. Bhagul to have illicit connection with him and my mother complained to me. I remonstrated with deceased Saleh and his brother Sunharo. About 10‑12 days back, when I came to my house in the evening I saw Saleh em bracing my mother and the latter raising cries. I felt ashamed and pursued him with hatchet in my hand but Saleh ran away. Four days back I came to know that he was going across the river. When he returned I saw him in Moro town. As he left the town for my village, I followed him because 1 had grudge against him due to shame. While we were at a call's distance from our village, I suddenly attacked him with the hatchet and gave him two blows with the sharp side of the hatchet on his neck‑Saleh fell down. I then dragged the dead body and threw it in the Khabars. In the same Khabar tree I threw his turban and loin cloth and threw my hatchet with which I had murdered Saleh in another Khabar tree. I then went and related the facts to Kutubdin and asked them to save me. He brought me to Taj Mohamed and Daud and they sent for Sunharo the brother of the deceased. I then pointed out the dead body to all of them. They tied me and made me sit in Haji Soomro Chandio's Otak from where I was secured by the police." It is conceded by the learned Addl. Advocate‑General that the statement in the confession regarding the deceased pressing the mother of the accused for illicit intercourse and the motive given by the accused is false for Sunharo with whom the accused remonstrated was not cross examined on this point. The statement in the confession that the accused knew that Saleh was going across the river is false because Hyder Chandio's village according to the prosecution, was at a call's distance from Moro. The statement that when Saleh returned he saw him in Moro town is not true as the accused would not know that Saleh would return across the river on a particular day and by chance the accused happened to be in Moro and met him. Soomro's village where Saleh was going is 8 miles from Moro. The accused followed Saleh for a distance of 7 miles and attacked him only when he was at a call's distance from the village. This is not probable as the accused could have killed him before on his way while the deceased was going from Moro to Soomro'a village. The confession shows that two injuries were given with hatchet on the neck. But this was known already as the medical officer had examined the deceased before the confession. If the accused was anxious to conceal the dead it under the Dhingers, there is no reason throw the blood‑stained clothes of the deceased hatchet haphazardly near the Khabar trees where these would be detected. Kutubdin and Tai stated in their evidence that the accused confessed his guilt to them. But they are shown as the accused in the first report. Therefore it would be difficult to place any reliance on their testimony. Sunharo and Dhanibux stated about the confession of the accused to them but the first report of Sunharo made no mention of the confession of the accused to them. The statement that the accused pointed out the dead body to Tai Muhammad, Daud and Sunharo is belied by the first report which shows that Taj Muhammad, Daud and Kutubdin pointed out the dead body to Sunharo. We therefore consider that the confession is not true and the evidence regarding the extra judicial con fessions is false. The evidence of Hyder that he saw the accused in company of the deceased at Moro on the evening of the night of murder appears to be not reliable. Hyder in his examina tion in chief stated that the father of accused was maternal uncle of his wife and that they were on visiting terms. But in his cross‑examination he stated that Mst. Bhagi the mother of the accused was married to Kaloo, his cousin, who later on divorced her and from that time they were not on good terms. He is a previous convict for badmashi. In his examination‑in‑chief he stated that he saw Saleh bad a goat which he said he was going to sell as they wanted to migrate because of the intimacy of the accused with his wife. But Sunharo and Dhanibux stated that the deceased had gone to sell ornaments to pay Ghulam Husain's debt, Mst. Maryam denied her intimacy with the accused. Motive is often a B matter of conjecture and cannot alone form basis of conviction or corroboration of the confession. We accordingly set aside the conviction and sentence passed against the appellant and acquit him. The notice of enhancement of sentence is discharged. K. B. A. Conviction set aside.