P L D 1964 (W (PLP)

H. T. RAYMOND, J.‑

The two appellants were convicted by the learned Sessions Judge Larkana, (Mr. S. A. M. Ghaznavi) on 13‑11‑1961, under section 302/34, P. P. C., and were sentenced each to death. The present appeal is against these convictions and sentences. This matter is also before us for confirmation of the death sentences. This judgment will dispose of both the appeal as well as the murder reference.

2. This confirmation case is Confirmation Case No. 72/1961, and it arises out of the Sessions Case No. 60/1961 of the Sessions Court, Larkana. We have earlier today decided Con firmation Case No. 71/1961, in which these same two appellants are involved. Confirmation Case No. 71/1961, arises out of the Sessions Case No. 6l / 1961 of the Sessions Court, Larkana. These two Sessions Cases Nos. 60 and 61 of 1961, were tried consecutively by the Sessions Judge, Larkana, and judgment in both was delivered on the same day, namely, 13‑11‑1961. The incidents in these two cases occurred in the evening of the 16th January 1961, and the night intervening between the 16th and 17th January 1961. Deceased Khawandino was murdered in Confirmation Case No. 71/1961, at Somahni time on 16‑1‑1961, whereas deceased Mst. Moran was murdered in Confirmation Case No. 72/1961, at about midnight in the course of the night between 16th and 17th January 1961.

3. The two appellants in this case are Mangsies by caste and are also cousins inter se. The appellant Fakir Muhammad is the brother of Waris, husband of deceased Mst. Moran. The appellant Ismail is a brother of the absconding accused Lakhmir. Mst. Moran had been declared Karl with Khawandino deceased to Confirmation Case No. 71/1961, and she had also been declared Kari with Gul Muhammad Mangsi. She used to reside with her husband Waris in village Rais Ji Wandh, Aitbar Khan of Taluka Shahdadkot, District Larkana. Her daughter Mst. Hanifan P. W. 4, lived with her parents. Mst. Bibt Naz P. W. 3 wife of Muso and sister of Fakiro also resided in the same village in an adjoining house. On the night of the incident in question, namely, the night between the 16th and 17th of January 1961, Mst. Moran had retired to sleep for the night with her daughters when at about midnight the daughter Mst. Hanifan was awakened by the cries of her sister and found her mother lying murdered. She then informed Mst. Bibi Naz P. W. 3 of what had happened and they in turn informed Ahmad Nawaz and Rakhial P. W. 11 who immediately went to the Police Outpost at Kubo Saeed Khan where his F. I. R. was recorded at 9 a.m. on the morning of 17‑1‑1961, by A. S. I. P. Bashir Ahmed P. W. 9.

4. A. S. I. P. Bashir Ahmed then proceeded to the scene of offence some six miles away where he prepared a mashirnama of the scene Exh. 15‑B and an inquest report Exh. 15‑C of the dead body of Mst. Moran lying there. He then sent the dead body to the Shahdadkot hospital for post‑mortem and recorded the statements of prosecution witnesses Hanifan, Bibr hiaz and others. He then handed over the investigation papers to S. I. P. Shabdad kot Rehmatullah P. W. 10 who verified the investigation so far done by him. On 20‑1‑1961, the two appellants surrendered themselves at Kubo Thana at 5 p.m. and were arrested. They led the police party to their respective houses from where they produced hatchets as per mashirnamas Exbs. 14‑A and 14‑B. The next day they were produced before the Sub‑Judge and F.C. M., Shahdadkot, P. W. 8, who recorded their judicial confessions as per Exhs. 8‑A and 8‑B in this case. An interim challan against these two appellants was presented to Court on 4‑2‑1961, which was followed by a final challan on 10‑3‑1961.

5. In their examination in the two Courts below the appel lants deny each and every allegation put to them and they also deny having made any voluntary judicial confession. They say that the police had detained their wives for four days during which they had made them naked, disgraced and ill-treated them until these two appellants agreed to make the confessions which now stand in their respective names.

6. There can be no doubt that Mst. Moran died an unnatural death. The evidence of Doctor Abdul Jabbar, Medical Officer, Shahdadkot, who performed the post‑mortem on her corpse discloses that she had five external incised wounds of which injury No. 2 was an incised wound 5" x 3" x 4" on the back of chest 1 " below the root of the neck and which in the opinion of the doctor was individually sufficient in the ordinary course of nature to cause death.

7. The sole point for determination by us in this case is whether these two appellants can, in the light of the evidence available on the record, be said to have been proved to be the murderers of Mst. Moran. This evidence consists of the judicial confessions of these two appellants Exhs. 8‑A and 8‑B and the oral testimony of Mst. Bibi Naz P. W. 3 and Mst. Hanifan P. W.

4. The two alleged eye‑witnesses of Confirmation Case No. 71/1961, namely, Rabnawaz and Azizullah have also been examined in this case as P. Ws. 6 and 7 but it is perfectly apparent that they were nowhere near the scene at the time of the murder of Mst. Moran. Then there is the evidence of Mengal P. W. 8, the mashir in whose presence the appellant Ismail produced a hatchet from his house as per mashirnama Exh. 14‑A and appel lant Fakir Muhammad produced from his house a hatchet, coat and a loin cloth as per mashirnama Exh. 14‑B. There is nothing on the record of this case to indicate whether these articles were sent to the Chemical Examiner. There is also the evidence of Rakhial P. W. 11, but he does not support the prosecution case. This is the total evidence for the prosecution in this case and it is of such a nature that the learned Advocate appearing on behalf of the State admitted that he could not support the conviction in this matter. However, as this is not only an appeal but also a murder reference it is essential that we should exam in (Or ourselves each of these pieces of evidence.

8. With regard to the two judicial confessions Exhs. 8‑A and 8‑B although we have on record the evidence of the learned Sub. Judge and F.C.M., Shahdadkot, Mr. Dhani Bakhsh P. W. 5, who recorded these two judicial confessions after observing all the formalities as required by law, yet we find that at the close of each confession this learned Sub‑Judge has asked each appellant as to why he is confessing to which the appellant Ismail replied that it was because of "Laj or shame" and the appellant Fakir Muhammad replied that "it is on account of Ghairat". This appellant Fakir Muhammad had earlier in the body of his confes sion stated that he had committed these murders of Khawan dino and Mst. Moran because of "Ghairat" i.e., provocation in respect of the chastity of females. Having admitted this in the body of his confession it does appear to us that he was later making this confession for the self‑same reason. We are forti fied in this view by the word used by appellant Ismail who stated that be was confessing because "it was a matter of our Laj" mean ing shame. This shame was occasioned by the police sending for the women‑folk of these two appellants, denuding, disgracing and illtreating them. In regard to this particular allegation there is on the record of this Confirmation Case No. 72/1961, abundant evidence. Both Mst. Bibi Naz P. W. 3 and Mst. Hanifan P. W. 4 say so: then the mashir Mengal P. W. 8 also says that the accused and their wives were at Kubo Thana for three or four days before the two appellants were taken to Shahdadkot. This mashir further states that the police had asked the appellants in their presence to confess so that their women may be released. It is true that the two police officers examined in this case namely A. S. I. P. Bashir Ahmed P. W. 9 and S. T. P. Rehmatullah P. W. 10 deny that they had sent for the women of the accused and had asked them to influence the accused to make a confession. But, having carefully considered this matter ourselves we have reached the conclusion that it would defini tely be unsafe to hold that these two confessions were voluntary confessions.

9. The next piece of evidence against the appellants on the record of this case is the testimony of the two women Mst. Bibi Naz P. W. 3, and Mst. Hanifan P. W.

4. Both these women in their statements in the committal Court as well as in their state ments in the Sessions Court deny that the two appellants were among the culprits. In view of this denial the prosecution can derive no help whatsoever from the oral testimony of these two women who admitted were the only two persons present at the time of the murder of Mst. Moran.

10. It appears to us that in a vain attempt to bolster up this case the prosecution applied in the lower Court at a late stage to examine the two alleged eye‑witnesses Rabnawaz and Azizallah of Confirmation Case No. 71/1961. This application was granted by the learned Sessions Judge and these two witnesses were examined in this case also and are P. Ws. Nos. 6 and

7. But, it is perfectly apparent from a perusal of the evidence of these two witnesses that they were nowhere near the scene of the murder of Mst. Moran and, therefore, they can shed no light on the all important question as to who her assailants were. In view of this position, then, the prosecution in this case can derive no assistance from the oral testimony of these two witnesses.

11. Next comes the mashir Mengal P. W. 8 in whose pre sence the two appellants produced hatchets but these articles dog not appear to have been sent to the Chemical Analyser for exami nation. This witness also, has assisted the appellants by saying that they were along with their wives detained by the police at D Kubo Thana for three or four days and that the police had asked them in his presence to confess so that their women maybe released. Thus, the evidence of this witness so far from assisting the prosecution in this case is of material help to the case of the appellants.

12. There retrains the evidence of the informant Rakhial P. W. 11 in respect of whom the learned Public Prosecutor in the trial Court submitted an application for his examination after the recording of evidence had been closed and the final arguments heard. But, this witness, too, has given the go‑bye to the pro secution. He has said that on reaching the scene of the murder of Mst. Moran, Mst. Hanifan and Bibi Naz who were there present told him that three unidentified persons had commit ted the murder who were unknown to them. This witness even denied having given the names of the two accused mentioned in the F. I. R., namely, Lakhmir and Fakiro. He added that the S. I. P. when reading out his F. I. R. to him did trot mention the names of Lakho and Fakir Muhammad. Thus, it is obvious that this witness does not support the prosecution case at all.

13. In the result, therefore, we find that there is no satisfac tory evidence on the record of this case to establish the guilt of these two appellants and that the learned Advocate appearing on behalf of the State has correctly conceded that he cannot support these convictions. In this view, therefore, we are constrained to accept this appeal and to set aside the death sentences imposed upon the two appellants. We direct that they be set at liberty if not wanted in any other case. R, B. A. Appeal accepted.