P L D 1975 Supreme Court 227 (PLP)

Ijaz Hussain Batala, Advocate Supreme Court instructed by M. A. Rehman, Advocate‑on‑Record for Appellant. Muhammad Hayat Junejo, Advocate Supreme Court instructed by A. Aziz M. Dastgir, Advocate‑on‑Record for Respondents Nos. 1 and

2. Usman‑e‑Ghani, Assistant Advocate‑General (Sind) for the State. Dates of hearing: 9th and 10th December 1974. MUHAMMAD AFZAL CHEEMA, J.‑Two important public figures of Tando Adam, namely, Doctor Tahir Hussain Siddiqi, Vice‑Chairman of the Municipal Committee and Babu Faqir Muhammad its Member were murdered on 14‑1‑1967 the day following Eid‑ul‑Fitr at 2‑30 p.m. at a distance of half a mile from the town. Four accused were sent for trial. Khair Muhammad and Fazil were acquitted by the Sessions Judge while the conviction of Umid Ali and Wazir respondents with an award of capital punishment was set aside in appeal/reference by a Division Bench of the Sind & Baluchistan High Court, vide impugned judgment, dated 21‑2‑1969.

2. Petition for leave to appeal was moved by Abdur Rashid complainant. Leave was granted by this Court, vide order dated 7‑7‑1971 to consider as to whether the judgment of acquittal was not based on artificial grounds including the improper rejection of the testimony of three eye witnesses supported by medical evidence, and judicial confession of the respondents corroborated by evidence of recoveries, resulting in grave mis-carriage of justice.

3. The facts of the prosecution case briefly are that on 14‑1‑1967, at about 2‑30 p. m., the two deceased accompanied by Abdur Rashid complainant (P. W 8) brother of Babu Faqir Muhammad deceased and Aurangzeb (P. W. 9) Kamdar of Doctor Tahir Hussain Siddiqi deceased went to see as prospective purchasers of the agricultural land of Khurshid Beg (P. W. 7); who proposed to sell it. As they walked along, Faqir Muhammad deceased observed that Umid Ali respondent was opposed to their purchasing the land which they were going to inspect. After having taken a round of the land, as the party returned to Pai Minor in front of Survey. No. 404/2 shown in site plan, Exh. P. B. they found Khair Muhammad and Fazil, the acquitted accused armed respectively with a revolver and a hatchet standing towards the East of the Minor while the two respondents, Umid Ali and Wazir armed with runs towards its West at a short distance. Umid Ali challenged the deceased saying that they had no business to purchase the land and simultaneously with this, both the respondents fired at Faqir Muhammad deceased who was fatally wounded and died instantaneously. Doctor, Tahir Hussain ran for life but the two respondents overtook him at some distance in the potato cultivation and shot .him dead. Abdur Rashid and Aurangzeb P. Ws. raised an alarm in response to which Nazir (P. W.) a brother of Babu Faqir Muhammad who was working in his garden closely rushed forward. In the meantime, having killed the two deceased, the accused ran away. The three eye‑witnesses, namely, Abdur Rashid, Nazir and Aurangzeb found that both the deceased bad already expired. Leaving Nazir and Aurangzeb at the spot, Abdur Rashid went to the Police Station and lodged the report, which was recorded by Victor Fateh, Additional S. H. O: (P. W. 13). The latter visited the scene of crime in tie presence of Raja Fateh Haider (P. W. 12) and one Qasim Ali. He found the dead body of Babu Faqir Muhammad lying eight feet away from the western bank of Pai Minor, shown at point 'A' in the site, plan. He picked up blood‑stained earth from underneath the body and also secured two empty cartridges lying at a distance of 28 feet from it. He recovered two mis‑fired bullets of revolver ‑lying in the potato cultivation about 53 feet away from the dead body of Babn Faqir Muhammad. The dead body of Doctor Siddiqi was found at point `B' in the site plan about 177 feet from the dead body of Babu Faqir Muhammad. A wrist‑watch, broken glasses, a muffler and two empties and one live cartridge were lying close to the dead body which were taken into possession besides some blood‑stained earth. The. relevant Masheernama Exh. 35 was attested by Raja Fateh Haider (P. W.) and Qasim Ali. The Sub‑Inspector prepared the inquest reports of the dead bodies and sent them for post‑mortem examination to Tando Adam Hospital.

4. It appears that this broad daylight murder of the two respectables of the locality created quite a sensation. The investigation was taken over by Manzoor Ahmad, D. S. P. (P. W. 16) who was already present in Tando Adam in connection with the investigation of another case. He proceeded to the village of the accused reaching there at about 4‑45 p.m. and arrested the two respondents from their houses. On interrogation Umid Ali res pondent led to the recovery of his licensed double‑barrelled gun, 41 cartridges and a rod with a piece of cloth on the top for cleaning the gun; from inside the room of his house. The gun and the rod smelt of gun powder and were taken into possession vide memo. Exh.

30. Wazir res pondent a Khalazad of Umid Ali respondent then led the police party to the adjacent house of Nural brother of Umid Ali and produced a single barrelled gun from inside a room. This was the licensed gun of Nural and also smelt of gun‑powder. The two respondents were despatched to the Police Station while the D. S. P. and the A. S. 1. proceeded to the place .of occurrence and verified the investigation conducted by the Additional S. H. O: The other two co‑accused, namely, Khair Muhammad and Fazil were arrested by Ahmad Khan, A. S. I. on the following day. Ahmad Khan searched .the house of Khair Muhammad but did not find anything incriminating. Fazil led to the recovery of a hatchet. Subsequently, however, on interrogation by Muhammad Bakhsh, S. H. O. (P. W. 15), Khair Muhammad volunteered to produce a revolver and got it recovered from the Lorha (thorny fence) around his house which was taken into possession, vide memo. Exh.

38. The two respondents volunteered to make judicial confession but 15th of January 1967, being Sunday, they were produced before Khuda Bakhsh, Resident Magistrate, Tando Adam (P. W. 5) on the 16th who after administering warning and observing the necessary formalities, recorded the confessional statement of Umid Ali, Exh. 18, and of Wazir, Exh.

19. As will be presently seen these statements were subjected to con siderable criticism by the defence and though the challenge to their veracity and voluntariness did not find favour with the Sessions Judge, it succeeded before the High Court.

5. The arrest of the four accused simplified the investigation which was soon completed except the despatch of the weapons recovered from the accused and the empty‑cartridges picked up at the spot. There were sent to the Superintendent of Police by Muhammad Bakhsh, S. H. O. on 12‑2‑1967 and were received by Shah Jahan, Ballistics Expert on 6‑3‑1967. The delay was sought to be capitalized on behalf of the defence whose arguments did not find favour with the Sessions Judge but prevailed with the High Court.

6. At the trial, the prosecution case rested principally on the testimony of the three eye‑witnesses, the evidence of recoveries of weapons and empties supported by the positive report of the Ballistics Expert, the confessional statements of the two respondents, the medical evidence, and lastly, the evidence of motive available in the statement of Khalil Ahmad (P. W. 6) and Khurshid Beg (P. W. 7). The former placed on the record a copy of the agreement of sale Exh. 21, executed between Umid Ali respondent and the father of the witness in respect of the purported sale of a piece of agricultural land close to the place of occurrence. Khurshid Beg (P. W. 7) deposed that Umid Ali respondent was in possession of his land as a lessee and that the same had been sold by him to the wife of Doctor Siddiqi deceased for a consideration of Rs. 1,500 of which one‑half had already been paid to him, vide agreement, Exh. 23.

7. All the four accused including the two respondents denied the commission of offence or the recoveries attributed‑ to them and alleged false implication. The two respondents ascribed their confessional statements to torture and coercion. Umid Ali specifically alleged that their licensed guns were fired by the police to concoct evidence and a positive opinion of the Ballistics Expert was manoeuvred by the prosecution through Zafar Khan, a former S. H. O. of Tando Adam Police Station, who was related to the Ballistics Expert, Shah Jahan (P. W.) It was further alleged by him that with a view to extort confession, his beard was pulled by the police and their women‑folk were disgraced, influential persons like Muhammad Khan Junejo, a Provincial Minister and Jam Sadiq Ali, M. N. A. arrived at the Police Station and the Police Officers threatened them to be hanged publicly in case they did not affix their signatures to the confessional statements which were already written out and that in the presence of the police their signatures were forcibly obtained on them by the Resident Magistrate who was mixed up with the complainant party. He alleged that a false case had been cooked up against him in order to oust him from the land of which he was in legitimate possession. He further stated that Karam Ilaht, D. S. P. who was a relation of Doctor Siddiqi wanted to purchase the land of one Amir Din, Sodawala, which in fact had already been purchased by hurt like respondent) and this led to litigation. Similarly, Sohbat Khan father of Fazil accused had purchased land from one Idrees, Pathan in which also Karam Ilahi, D. S. P. was interested. He further alleged that the P. CVs. being related to the deceased had falsely deposed against them. He placed on the record documents, Exhs. 48 to

54. Of these the first five purported to show that security proceedings had been resorted to by the local police against Baba Faqir Muhammad deceased and others at the instance of Muhammad Bakhsh, Umrani, in June 1967. The sixth document Exh. D. 3 was a copy of the judgment of acquittal. dated 30‑10‑1967 recorded by the Resident Magistrate in favour of Nur Muhammad and Lai Khan Umranis accused in that case purporting to show the existence of bad blood between the parties. This piece of evidence was obviously irrelevant inasmuch as these proceedings were initiated about three months subsequent to the registration of the present murder case. The last document Exh. 54 was a copy of an F. I. R, dated 11‑4‑1958 lodged by Bashir Ahmad (P. W.) against Umid Ali respondent and others for offences under sections 147, 148/324, P. P. C., purporting to show the existence of enmity between them.

8. Having considered the evidence on record, the learned Sessions Judge found it good enough to bring home the guilt to the respondents who were awarded capital punishment while their two co‑accused Khair Muhammad and Fazil were acquitted. The evidence against all the four accused being more or less the same, the only distinction which tilted the balance in favour of the latter was the non‑availability of confirmatory evidence of the testimony of the interested eye‑witnesses. On the contrary. the retracted judicial confessions of Umid Ali and Wazir respondents, the recoveries of guns at their instance found to be wedded to the crime‑empties recovered at the spot were considered to offer independent corroboration of the ocular account justifying their conviction.

9. The respondents succeeded in appeal before the High Court and earned the impugned judgment of acquittal. The considerations which weighed with the learned Judges of the High Court in substance were that the witnesses were interested, their statements at the trial were not only extremely discrepant but also contained several improvements making out a version wholly at variance with the one disclosed by Abdur Rashid in the F. I. R. It was further held that the judicial confession was extorted as alleged by Umid Ali respondent in his elaborate statements during committal and trial. Besides being found to be involuntary and untrue, according to the learned Judges the confessions also bristled with irregularities committed by the Magistrate in the mode of recording. The learned Judges particularly influenced by the fact that the two deceased being important and well-connected figures of the locality whose death was condoled by persons no less than the Provincial Ministers and Political Leaders, the local police was strongly influenced by the surcharged atmosphere with the result that the investigation lacked honesty and objectivity, being further influenced by Karam Ilahi, D. S. P. a relation of Doctor Tahir Hussain Siddiqi. Evidence of the recovery of weapons coupled with the delay in their despatch to the Ballistics Expert was found to be equally unreliable. It also appears as mentioned by the learned Judges in the penultimate paragraph of their judgment that the learned counsel appearing for the State had also conceded before them that the convictions were unsupportable.

10. As stated at the out‑set, leave was granted to examine the contentions raised before this Court by the late Mr. Manzoor Qadir that the grounds forming the basis of the High Court's judgment of acquittal were mostly speculative, fads were misrepresented in the judgment, and that being based on artificial grounds the order of acquittal had resulted in grave mis carriage of justice.

11. After having taken us through the record, learned counsel for the appellant contended before us Firstly, that the High Court had not dealt with or made even a passing reference to the motive which laid the foundation of the murder of two important persons of the locality. Secondly, that the learned Judges had completely overlooked the significance of an elaborate F. I. R. promptly lodged within half an hour of the occurrence containing a detailed ocular account with a specific reference to the natural eye‑witnesses whose testimony found full support from the medical evidence, Thirdly, that the evidence of recoveries was disbelieved on artificial grounds, Fourthly, that the rejection of the judicial confession of the two respondents was based on misreading of evidence and a subjective inter pretation wherein even minor and inadvertent omissions were magni fied so as to be characterised as irregularities, and Lastly, that on the whole the judgment of the High Court contained instances of glaring misreading of evidence leading to wholly erro neous and unjustified inferences culminating in the judgment of acquittal.

12. On the other hand before trying to defend the judgment of acquittal on merits learned counsel for the respondents contended at the outset that the principles on which this Court could interfere in an appeal against acquittal were quite well established and the mere possibility of an alternative view furnished no grounds for interference unless it could be demonstrably established that the judgment of acquittal was based on palpable mis-apprecia tion of law or misreading of evidence which rendered it unsustainable. Reliance was placed in this regard on Siraj Din v. Kala (P L D 1964 S C 26), Bashir Ahmad v. Muhammad Azam and 3 others (P L D 1969 S C 469) and Muhammad Ismail v. Khushi Muhammad and 7 others (P L D 1974 S Q 37). It was next contended that considering the entire evidence in the background of the attitude of the local Administration including the Investigating Agency and in particular the fact that D. S. P. Karam Ilahi. was related to Doctor Siddiqi deceased, and one of the eye‑witnesses was his Kamdar while the two other were the brothers of Babu Faqir Muhammad, the second victim no sanctity attached either to the investigation or the prosecution evidence thus collected and created which had to be taken with a grain of salt. It was explained that the two deceased being influential persons and important political figures of the locality having direct associations with the Provincial Ministers, the investigating authorities unhesitatingly fabricated evidence, extorted the so‑called judicial confessions from the respondents after humiliating their kith & kin and disgracing their women folk and that likewise the evidence of recoveries was unreliable as none of the `Masheers' was a person of unimpeachable creditability. It was argued that the account furnished by the eye‑witnesses about the death of Doctor Tahir Hussain Siddiqi did not fit in with the medical evidence according to which he was hit from the front which could not have been possible if he were running for life in which event he would have been hit in the back. It was next contended that the case of Wazir respondent distinguishable from that of the other accused Umid Ali respondent inasmuch as the former did not share the motive with the latter nor was the alleged recovery if the licensed gun of Nural at his instance established beyond doubt which according to the A. S. I., Ahmad Khan was also got recovered by Umid Ali and admittedly belonged to his brother Nural. Lastly, it was submitted that at any rate in case this Court was inclined to set aside the impugned judgment of the High Court and restore the conviction of the respondents recorded by the Sessions Judge, restoration of death sentence would not be justified in view of the expectancy of life and the lapse of a period of 8 years since the commission of the offence. Reliance was placed on The State v. Rab Nawaz and another (P L D 1974 S C 97) and Abdus Sattar v. Muhammad Anwar and 6 others (P L D 1974 S C 266).

13. Learned counsel appearing on behalf of the State adopted the argu ments advanced on behalf of the appellant and submitted that it was a case of erroneous unsupportable acquittal and that the evidence on record fully justified the conviction of the respondents which was rightly recorded by the Sessions Judge. However, on the question of sentence, learned counsel supported the plea of lesser sentence on the doctrine of expectation of life.

14. A proper appreciation of the contentions raised on behalf of the parties calls for a full examination and re‑appraisal of the evidence of this daylight case of double murder of which an elaborate report containing the names of the eye‑witnesses, of the accused and the role played by each one of them, was promptly lodged at the Police Station and was substantially believed by the trial Court which having an opportunity of studying rite. conduct and demeanour of witnesses in Court could give a more appropriate interpretation of their utterances, an advantage not available to the High Court which is normally slow to interfere with the assessment of the trial Court and yet in the instant case the High Court found itself justified to reverse the findings.

15. Taking the points seriatim, it was to be readily conceded that although a specific motive, namely, the pre‑emptive rivalry about the purchase of land was not only clearly alleged in the promptly lodged F. I. R. but was also impliedly admitted by the respondents in their statement yet it finds not even a passing reference in the judgment of the High Court. Evidence of motive is not only relevant but also often helpful both to the investigating Agency as well as the Court. Its importance, however, depends on the facts and circumstances of each case. For the police it steers and determines the course of investigation. Its established existence and strong nature proved by reliable evidence when put in the scales alongwith then ocular and other evidence does quite often tend to set at rest some lurking suspicions and satisfy the judicial conscience. Of course there may be cases where even the strongest motive may be wholly inapt owing to absence or weakness of direct evidence. Conversely the weakness of motive or even its conspicuous absence might not be helpful to the accused against whom unimpeachable ocular evidence is available. If we may say so with due respect, the learned Judges entirely overlooked to consider this aspect of the matter or even make a passing reference to the motive alleged and the W evidence led by the prosecution in support thereof.

16. According to the F. I. R. lodged by Abdur Rashid (P. W. 8) as the two deceased accompanied by the P. Ws. were proceeding on the fateful day towards the land they wanted to purchase, Babu Faqir Muhammad specifically mentioned to his companions that Umid Ali respondent was opposed to their purchasing of the land. Again it is in evidence that before opening fire at the deceased, Umid Ali had challenged them saying that they had no business to purchase the land. This dispute between the parties was clearly brought out at the trial by the P. Ws. and in particular by Khalil Ahmad, Advocate (P. W. 6) and Khurshid Beg (P. W. 7). In the earlier part of the narrative, I have already referred to the agreements of sale of land placed by these witnesses on the record. Khalil Ahmad produced before the Court agreement of sale Exh. 21, dated 3‑1‑1967 executed by him as the attorney of his father Syed Abdullah in favour of Umid Ali respondent. The same land was later sought to be purchased by the two deceased for Karam Ilahi, D. S. P. To similar effect was the statement of Khurshid Beg (P. W. 7) who likewise placed on record an agreement of sale of agricultural lard dated 8‑1‑1967 executed by him as attorney in favour of Doctor Siddiqi's wife. This land was situated in village Gujro of which Umid Ali was in cultivating possession as a lessee. But even if as a matter of abundant caution, the latter document is excluded from consideration on the ground of alleged forgery for the reason that it suddenly made it appearance for the first time at the trial, the statements of the respondents themselves at the trial lend full support to the disputes between the parties over the purchase or possession of land. I am thus convinced that the respondents genuinely bore a grudge against the deceased and the alleged motive which has been completely overlooked by the High Court was nut a fabrication.

17. The next important point which really forms the crux of the matter is the question of the credibility of the three eye‑witnesses, namely, Abdur Rashid (P. W. 8), Aurangzeb (P. W. 9) and Muhammad Nazir (P. W. 10). P. Ws. 8 and 10 were the brothers of Babu Faqir Muhammad while P. W. I" was the Kamdar of Doctor Tahir Hussain Siddiqi and as such they certainly had close interest in the deceased. In view of the established rivalry between the parties and clash of interest over land, the witnesses were not wholly disinterested. It may be mentioned in this context that although as a rule of prudence, the Courts have more often than not insisted on independent corroboration before placing reliance on the testimony of interested witnesses yet it is not an inflexible rule to be rigidly and unexceptionally applied. There might be cases in which the witnesses related to the deceased might otherwise, quite natural furnishing direct evidence of a convincing nature unless there are reasons to believe that they have an animus against the accused and are giving a rather distorted or exaggerated account which do not inspire confidence, even their uncorroborated testimony may be implicity relied upon of course in the context of other relevant circumstances of each case. Reference may be made in this regard to this Court's judgment in Jahan Khan v. State (P L D 1959 S C (Pak.) 488), Niaz v. State (P L D 1960 S C 387) and Nazir and others v. State (P L D 1962 S C 269). These judgments were referred to with approval in Muhammad Ismail v. Khushi Muhammad and 7 others.

18. The first relevant point for consideration, therefore, is as to whether or not it stands established beyond doubt that Abdur Rashid and Aurangzeb P. Ws. had accompanied the two deceased to the scene of crime. I find nothing inherently improbable or doubtful about their claim in this regard. It was the day following Eid‑ul‑Fitr when normally people would still be somewhat in a holiday mood. While going to see the land as prospective buyers, the two deceased would have naturally liked to take some friends or relatives with them for judging the reasonableness of the price by an on‑the- spot inspection of the nature and quality of the soil, or even otherwise, merely for the sake of company. I have already mentioned the significant reference in the F. I. R. made by Abdur Rashid complainant and deposed to by the P. Ws. at the trial that on the way Babu Faqir Muhammad deceased had observed that Umid Ali respondent was very unhappy over their proposed purchase of land. This stood further established by the challenge thrown by Umid Ali at the deceased before opening the attack. Considering the background of the established motive, I am convinced that this apparently casual reference by Abdur Rashid to an observation made by Babu Faqir Muhammad deceased is indeed very pertinent, sounds quite natural and has a ring of truth. Coupled with the challenge of Umid Ali who shouted to the deceased before opening the attack that they had no business to purchase the land, it goes a long way to set at rest any doubt as to the presence of Abdur Rashid and Aurangzeb. Muhammad Nazir (P. W. 10) the second brother of Babu Faqir Muhammad was stated to be working in this garden at a short distance from the place of occurrence, heard the gun reports and the alarm raised by the P. Ws. in response to which he rushed forward shouting at the same time that he was coming. As he emerged out of his garden, he saw the accused who then ran away. It is in evidence that Babu Faqir Muhammad and his two brothers Rashid and Nazir owned about 20 acres of land in the vicinity of the place of occurrence. Nazir stated in cross‑examination that his house was in the land outside the garden where be lived with his family. In spite of a lengthy cross‑examination, the defence could not make the credit of this witness or extract anything which might render his presence doubtful, The place where be was working at the relevant time in his garden is shown at Point 'G' in the site plan, Exh.

8. He was thus a natural witness and his presence could not be doubted.

19. The F. I. R., which was lodged with all the promptitude within half an hour of the occurrence not only mentioned the names of the accused, the deceased and the witnesses but also gave an elaborate and convincing ocular account of the occurrence. Having regard to its undisputed time and place, there could be hardly any doubt a3 to the identity of the assailants, nor could one see any earthly reason for substitution. The details of the two murders contained in the F. I. R. and the specific role attributed to the accused in an eye‑witness account could not have been a fabrication, the figment of Abdur Rashid's imagination or something merely based on suspicion. It was suggested to the P. Ws. that the deceased had undertaken their last journey in a tonga as also reported in some daily newspaper. In his statement before the C. M., Umid Ali respondent undertook to disclose at the trial the name of the tonga driver but nothing was brought on the record.

20. The only challenge to the veracity of the eye‑witnesses and sought to be construed as leading to the inference of their absence is the so‑called conflict between ocular testimony and the medical evidence in regard to the death of Doctor Siddiqi. He ran for life while his companion was shot dead, was chased by the respondents, fired at from behind and was found to be hit in the front. No doubt post‑mortem examination of Doctor Siddiqi revealed two gunshot wounds, one near the right and the other on the lower part of the chest in front, yet this is hardly in conflict with the ocular testimony. In the first instance. Abdur Rashid did not state in the F. I. R. which was the earliest version disclosed that the two, respondents had fired a Doctor Siddiqi from behind. All that he said was that they ran after him "`reached him in the potato cultivation and fired guns at him who fell down"'. The blackening around the first wound indicates tiring from close range. On being overtaken, Doctor Siddiqi would have either instinctively turned round or may be he was surrounded by the respondents as stated by Aurangzeb P. W. If the F. I. R. had specifically referred to the respondents having fired from behind or to the victim having been hit from behind, the maker the F. I. R. could alone have been pinned down and confronted with his earlier statement. But there was rte such particularization in the F. I. R. or the subsequent statement of Abdur Rashid at the trial. These were confined only to a reference to pursuit which does not exclude the possibility of the deceased either having turned round or being surrounded. We are thus clearly of the view that this so‑called conflict between ocular testimony and medical evidence is based on an untenable assumption.

21. Another ground which prevailed with the learned Judges of the High Court to discard the testimony of the eye‑witnesses was that their evidence "at the trial was in many respects extremely discrepant and different from the story advanced by Abdur Rashid in the F. I. R". It was further observed "Abdur Rashid himself made several improvements with regard to the details of the incident and also to the motive of the crime". Surprisingly enough, no such discrepancies or inconsistencies were brought out by the learned Judges in their judgment. In fact they have not quoted a single; instance justifying such an inference. Having carefully gone through the F. I. R. and the statements of the eye‑witnesses at the trial, I have not been able to endorse the view taken by the learned Judges that the case made out at the trial was at variance with the original version disclosed in the F. I. R., Some discrepancies are inevitably bound to occur on account of lapse of memory owing to the intervening period which was more than 16 months in the instant case. Of course, there have been cases where thoroughly drilled; and v‑ell‑tutored witnesses after going through several rehearsals made statements which were almost verbatim repetitions of their police statements! as well as those of each other at the trial and the Courts hove been very rightly sceptical about such parrot‑like reproductions. It is only the material discrepancies coming into conflict with the natural probabilities that militate against the credibility of witnesses justifying the rejection of their testimony. Nothing of the kind is noticeable in the instant case. On the other band, I have not been able to find any inherent infirmity in the testimony of the eye‑witnesses casting doubt on its verasity.

22. This brings us to the evidence of recoveries. The occurrence too place at about 3‑30 p.m. and the two guns allegedly used as weapons of offence were got recovered by the respondents within less than two hours of the occurrence. Umid Ali respondent led to the recovery of his licensed double‑barrelled gun with two packets one containing 18, 12‑bore cartridges, and the other

23. He also produced a Rod 45 inches in length with a piece of cloth fastened at the end for cleaning purposes. Significantly enough, according to the two recovery witnesses of Masheenrama Exh. 30, namely, Bashir (P. W. 11) and Mansoor Ahmad Siddiqi, D. S. P. (P. W. 16), the gun and the cleaning Rod smelt of gun‑powder indicating that it had been fired shortly before. It is not very often that one comes across such evidence of recoveries made immediately alter the occurrence supported by confirmatory evidence of firing. Reference may, however, be made in this context to an omission on the part of Mansoor Ahmad, D. S. P. inasmuch as in the Masheernama, Exh. 30, reference to the smell of gun‑powder smoke was confined only to the cleaning Rod. He, however, explained at the trial that both the gun and the cleaning Rod produced by Umid Ali smelt of gun. powder. Obviously, this is not much of an improvement which might cast doubt on the statement of the D. S. P. Same considerations apply to the recovery of gun made at the instance of Wazir respondent. This was a licensed gun of Nural brother of Umid Ali and was got recovered by Wazir from the house of the former. It was produced in a canvass holster and smelt of gun‑powder. It is significant to note that if it was a case of false implication merely on the basis of suspicion, Nural the licensee of the gun from whose house: it was recovered would have been a better choice. The learned Additional Sessions Judge, who had the advantage of studying the demeanour of the witnesses of recoveries believed them as truthful witnesses. It appears, however, that A. S. I. Ahmad Khan (P. W. 141 attributed the recovery of Nural's gun alto to Umid Ali. However, the learned Additional Sessions Judge preferred the statements of Bashir (P. W. 11) and Mansoor Ahmad, D. S. P. (P. W. 16) to the statement of Ahmad Khan, A. S. I., which even otherwise, did not fit in with the description given in the Masheernama to which Ahmad Khan was not a signatory. This gratuitous statement was, therefore, rightly rejected by the learned Additional Sessions Judge. The two guns were sent to the Ballistics Expert, Shah Jahan (P. W. 2) alongwith the four crime empties recovered at the spot. He could not express any definite opinion about one of these but clearly stand on the basis of comparison and microphotographs that two of these had been fired from the double barrelled gun while one from the single‑barrelled gun. It was alleged by the respondents in their statements that this positive report of Shah Jahan was manoeuvred through Zafar Khan, a former S. H. O. Tando Adam. Besides being rather far‑fetched, the contention could be overruled on the short ground that no such question was put to Shah Jahan when he entered the witness box as P. W. 2.

23. The rejection of the evidence of recoveries by the High Court proceeds on two‑fold grounds:‑ Firstly, that there was unexplained delay in the despatch of the guns and the crime empties to the Expert, and: Secondly, that the evidence of production of weapons of offence from the two appellants as also the crime empties from the wardat had come from the same persons in the case of acquitted accused. Accordingly, the learned Judges could see no reason why the respondents who were the appellants before them should have been given a different treatment. As regards the delay nothing in my opinion would turn upon it in the circumstances of the case where the two respondents were arrested within 90 minute of the occurrence, led to the recovery of the weapons of offence which were found to smell of gun‑powder to which specific reference is available in the relevant Masheernama. Immediately, on being recovered, the guns were made into sealed parcels which were received intact by Shah Jahan (P. W. 2) on 6‑3‑1967. As stated earlier, the recoveries of the guns were made by the D. S. P. on 14‑1‑1967 and were despatched to the Police Station from where they were forwarded by Muhammad Bakhsh, Sub‑Inspector on 12‑2‑1967. Significantly enough, Muhammad Bakhsh, S. H. O. Tando Adam (P. W. 15) was entrusted with the investigation of the case by the D. S. P. on 15‑1‑1967 at 3‑00 p.m. when the recoveries of the crime empties from the spot had already been made by Victor Fateh, Additional S. H. O. (P. W. 13) followed by the recovery of the gun, by the D. S. P. Having regard to the time factor and the bearing of investigation by different Police Officers in succession, "e find no basis for the inference that this was all a fabrication to which different Police Officers collusively joined hands. The observations of the learned Judges that the evidence of the production of guns by the respondents based on the testimony of the same witnesses is factually incorrect inasmuch as the witnesses of the recovery of the guns from the respondents were Bashir (P. W. 11) and Mansoor Ahmad, D. S. P. (P. W. 16) whereas witnesses of recovery of revolver from Khair Muhammad and hatchet from Fazil, the two acquitted accused were Raja Fateh Haider (P. W. 12) and Muhammad Bakhsh, S. H. O. (P. W. 15). The recovery of the revolver attributed to Khair Muhammad was disbelieved by the Additional Sessions Judge mainly on the ground that Ahmad Khan, A. S. I. (P. W. 14) who was the first to interrogate Khair Muhammad clearly stated that he recovered nothing incriminating from him. The recovery was further discredited by the trial Judge for the reason that on the view taken by him which was clearly erroneous, Muhammad Bakhsh. S. H. O. had specifically sent for Fateh Haider (P. W. 12) in order to make him the Masheer. The S. H. O. denied this position in cross‑examination which becomes quite clear by reference to the Sindhi version. On the view taken by him which was obviously based on misreading of evidence, the learned trial Judge was chary of the Sub‑Inspector's choice of this witness for the reason that he was the contractor of Tando Adam Municipality of which one of the deceased was a Vice‑Chairman and the other a Member. This again was a wholly untenable ground for rejecting the testimony of Raja Fateh Haider. But even so, this finding of the learned trial Judge would have no bearing on the earlier recoveries of the dead bodies and crime empties etc. from the spot of which the relevant Masheernama, Exh. 35 was prepared by Victor Fateh, Additional S. H. O. (P. W. 13) and witnessed by Raja Fateh Haider. In my opinion, no fault could be found with this part of his evidence when he joined the investigation. As stated earlier, I am not impressed by the argument that the fact of this witness being a contractor of the Municipality would detract from his credibility. It would be absurd to conceive of pre‑fabrication of evidence by planting crime empties on the scene of the offence and taking virtually a leap in the dark. There was thus no analogy between the evidence of recoveries made from the two sets of the accused which stood entirely on different footings.

24. On the above view of the matter, I am fully convinced that the ocular evidence supported by medical evidence and the evidence of motive further corroborated by the evidence of recoveries was good enough to bring home the guilt to the two respondents and no further evidence would be called for to justify their conviction.

25. This brings us to the evidence of retracted judicial confession made by the two respondents in which besides themselves they also incriminated the acquitted accused. Since no confirmatory evidence was available to support this evidence against the latter, the recoveries attributed to them having been found doubtful, they were acquitted by the learned trial Judge who placed implicit reliance on the confessional statements of the respondents notwithstanding the criticism by the learned defence counsel based on the elaborate statements of the respondents under section 342, Cr. P. C. challeng ing both their voluntariness and veracity. However, the learned Judges of the High Court primarily basing their finding on the statements of the respondents came to the definite conclusion that it was the result of duress and extortion having been extracted by pulling Umid Ali's beard accompanied by threats to disgrace their women‑folk. While dealing with this aspect of the case, the learned Judges specifically referred to the admitted presence of a large number of persons in the Court including a few ladies at the time of recording of the evidence. They were also influenced by the proximity of the Police Station to the Court‑room, the sensation created by the double murder in the town and the involvement of the administration, the "perfunc tory and careless manner" in which it was recorded by the Resident Magis trate who committed several omissions and irregularities and in particular his admitted visit to the spot in a purely personal capacity as also to the house of Doctor Siddiqi to condole his death. It was pointed out to us by the learned counsel for the appellants that some of the findings could not be supported from the record, for instance a reference to the admission by a Mr. Khuda Bakhsh Sohag, Resident Magistrate, to the presence of man; persons in the Court as also to the omission on the part of the Resident Magistrate to record that the accused were sent to the Judicial lock‑up were factually incorrect. Yet another inadvertent error pointed out in the judgment was a reference to the First Information Report having been lodge within 2 hours of the incident which in fact was lodged within half an hour Having carefully considered the grounds which found favour with the trial Judge in the acceptance of the confessional statements of the respondents as being voluntary and true as also those advanced by the High Court in support of its rejection, I am of the view that despite having come to the conclusion that the Resident Magistrate had observed all the necessary formalities in the recording of the confessional statements which to his satis faction were truly and voluntarily made by the respondents, there are two significant points which strongly militate against their sanctity. It is well settled that judicial confessions even though retracted if found to be voluntary and true are sufficient to sustain a conviction on charge of murder. It is in view of the utmost sanctily that the law attaches to human life and liberty that meticulous care has to be taken to safeguard against procurement and extraction of confessions. The Magistrate has to make sure in the first instance that the accused is not labouring under an extraneous influence of promise, threat or inducement and after having carefully understood the implications of the confessional statement, is making it in an absolutely free and uninhibited manner. Subjection or amenability to persuasive psycho logical influence on the analogy of an induced current might in certain cases strongly affect the voluntariness of the confessions. The observance of the legal requirements is not, therefore, to be a perfunctory process and a mere formality, but in the full realization of gravity of the situation and consciousness of the importance of his responsibility, the Magistrate is under an obligation to satisfy himself that all the requirements are fulfilled in letter and spirit. The Magistrate placed in the situation of the Res dent Magistrate in the instant case who not only visited the scene of the crime as private citizen as he would have us believe but: also visited the house of Doctor Tahir Hussain Siddiqi deceased to offer condolence which I otherwise, appreciate could not be expected in the back ground of this emotional involvement in the matter to take an absolutely detached view and faithfully enforce the legal requirements in letter and spirit. It would not be out of place to refer in this context to an English authority where also the legal principles relating to admissibility of confessions are more or less identical. In Reg. v. Rosa Rue ((1876) 13 Cox C C 209, 210), Denman, J. observed: "The general principle is clear, that if it is made out to the satisfaction of the Judge that the statement was not made voluntarily, it is not admissible. It is not merely a question as to whom the confession is made or when it is made; but it is a matter in which you have to get at the mind of the prisoner, and see whether or not it is probable that the confession was made voluntarily, in the proper sense of the word". Although apparently as held by the trial judge, the legal requirements were fulfilled, yet on ground of the admitted personal involvement of the Resident Magistrate and his interest in the case a also demonstrated by his two visits referred to earlier. I am, as a matter o abundant caution, inclined to share the scepticism of the learned Judges of the High Court in accepting this evidence to which no sanctity could be attached in this background. Its reception would also be in derogation of the principle that justice should also be manifestly seen to be done. But even so the exclusion of this important piece of evidence would in my opinion make no difference in view of the conclusion of the respondents' criminality already reached by me, if I may say so with due respect, certain prior assumptions of the learned Judges and the rather cherished prejudicial impression about the dishonesty of the police with the blessings of the Provincial Administration appear to have coloured their approach with the result that they not only rejected the evidence of judicial confessions but also looked upon almost every piece of simple and straight evidence including ocular testimony with considerable scepticism and thus reached distorted conclusions which had resulted in miscarriage of justice.

26. I would, therefore, accept the appeal, set aside the order of acquittal and restore the conviction of the respondents under section 302/34, P. P. C.

27. As regards the question of sentence, in view of the circumstances of the case coupled with the increasing danger to and insecurity of human life and liberty in the context of an alarming rise in the incidence of crime, I would be inclined to restore the sentences of death despite the lapse of 6 year and the respondents' expectancy of survival. This Court has of late con sistently looked askance at the indiscriminate invocation of the doctrine of expectancy. Reference rosy be made in this regard to Asadullah v. Muhammad Ali and 5 others (P L D 1971 S C 541), Abdus Sattar v. Muhammad Anwar and 6 others (P L D 1974 S C 266) and an unreported judgment of this Court Mst. Nuran v. Nuru and another Criminal Appal No. 73 of 1970 decided on 7‑5‑1974 (P L D 1975 S C 174). Accordingly, having regard to the brutality and cold‑bloodedness of the murders the sentence of death awarded to the respondents by the trial Court is restored. ANWARUL HAQ, J.‑--I agree. MUHAMMAD GUL, J.--‑I agree. S. A. H. Appeal accepted.