P L D 1962 (W (PLP)

H. T. RAYMOND, J.‑The two appellants in this matter were convicted by the Additional Sessions Judge, Tharparkar, at Sanghar, (Mr. Muhammad Yusuf C. Khawaja) under section 302, P. P. C. read with section 34, P. P. C., and were each sentenced to suffer transportation for life. The present appeal has been filed on their behalf against these convictions and sentences.

2. The deceased in this case is a Hindu by name Tikomal. He used to reside with his family in Shahpurchakar some eight miles away from Deh Chhora, Taluka Shahdadpur where he had his lands. Deceased Tikomal used to visit these lands of his occasionally and although he had his own Otak on these lands, yet he always stayed for the night in the house of his Kamdar, Ghulam Hyder P. W.

4. The complainant in this case, Imamshah P. W. 2, is the General Manager of the lands of Haji Khawaja Ghulam Mohiuddin, situated in this same Deh. This Imamshah had his own lands at Doulatpur where he used to live but he frequently came to supervise the lands of Khawaja Ghulam Mohiuddin in Deh Chhora when he would pass the night in the Otak of deceased Tikomal. P. W. 3, Muhammad Khan Mugha is a Zamindar who used to reside on his lands in this same Deh Chhora, Taluka Shahdadpur. Deceased Tikomal had visited his lands some four days before the date of the incident in this case and he was last seen alive sitting in his Otak on the evening of 22‑10‑1960, at about 5‑30 p.m. by complainant Imamshah who had also come there to visit the lands under his supervision. At about sunset time on that day, deceased Tikomal left the Otak saying that he was going to see Banko Khan Mugheri at his shop which was at a distance of about 500 paces from Tikomal's Otak. At about 9 p.m. that evening Ghulam Hyder P. W. 4, Kamdar of deceased Tikomal and in whose house deceased Tikomal used to pass the night when visiting his lands, came and informed complainant Imamshah that Tikomal had not returned to his house by then. P. W. Ghulam Hyder Informed complainant Imamshah that staying out so late was something unusual for Tikomal who would always return to Ghulam Hyder's house before it was dark. Complainant Imamshah informed Ghulam Hyder that at about sunset time that very evening Tikomal had left for the shop of Banko Khan and referred Ghulam Hyder to this shopkeeper for inquiry as to the where abouts of Tikomal. At about 11 p.m. that same night Ghulam Hyder returned again to complainant Imamshah saying that he had no clue at all of Tikomal and Imamshah suggested to him that Tikomal may have returned to his home in Shahpurchakar and, therefore, inquiries should be made there. The following morning P. W. Ghulam Hyder accompanied by his father Rano Khan again came and informed complainant Imamshah that Tikomal had not yet turned up and on the advice of Imamshah, Rano Khan left for Shahpurchakar to see whether Tikomal had returned to his home there. Imamshah then sent for More and Paliyo and directed More to go and bring Muhammad Khan P. W. 3, the Zamindar and Nekmard of that locality. On the arrival of Muhammad Khan a party consisting of Imamshah, Muhammad Khan P. W. 3, More, Ghulam Hyder P. W. 4 and Paliyo set out at sun rise in search of deceased Tikomal. They had coveted a distance of about 200 paces and were in the cotton cultivation of Muhammad Khan P. W. 3, when they observed marks of struggling on the ridge and some plants of the cotton cultivation tampered with and fallen by the side of the ridge. A few paces away they found a piece of shoe belonging to deceased Tikomal and a cash memo in the name of the deceased, Tikomal, lying in the same cotton cultivation. This aroused their suspicion that Tikomal had been murdered and, therefore, returning to their Otak they sent for Jogi Jalbanis and the present appellants for the purpose of making inquiries from them. It is said that the two appellants separately admitted their guilt and confessed to having strangulated Tikomal in the cotton cultivation of Muhammad Khan because on the preceding day Tikomal had exchanged hot words with them. The appellants also confessed to having thrown the body of deceased Tikomal into the Sadda Wah some 6‑7 miles away from the Vardat. The appellants also admitted to having removed the golden buttons and the wrist watch from deceased Tikomal. Complainant Imamshah and Muhammad Khan P. W. 3, then took the two appellants to Shahpurchakar Police Station where the complainant's F. I. R, was recorded at about 6‑30 p.m. on 23‑10‑1960.

3. The S. H. O., Khaliqdad, of Shahpurchakar Police Station P. W. 10, after recording the F. I. R. of complainant Imamshah and the police statement of Muhammad Khan P. W. 3, arrested the two appellants who volunteered to produce the articles secured by them from deceased Tikomal. Accordingly, appellant Waryam led the police party to the uncultivated land near his house where from beneath a Kandi tree he dug out the wrist watch and the buttons belonging to Tikomal as per mashirnama Exh.

24. Thereafter appellant Rasool Baksh led the police party to the same spot as per mashirnama Exh.

30. The next day, 24‑10‑1960, appellant Waryam led the police party to the cotton cultivation of Muhammad Khan P. W. 3, and pointed out the scene of offence to them where there were signs of struggle on the ground and the cotton plants were disturbed and broken as per mashirnama Exh.

26. Appellant Rasool Bakhsh then led the police party to the same place as per mashirnama Exh.

27. Thereafter the two appellants one after the other led the police party to the bridge on the Sadda Wah and pointed the place from where they had flung the dead body into the canal as per mashirnama Exh.

29. The S. H. O. also secured the piece of shoe and the cash memo produced before him by complainant Imamshah. The dead body of Tikomal was recovered from the Sadda Wah at the instance of Head Constable Jan Muhammad P. W. 8 on 26‑10‑1960, as per mashirnama Exh.

14. The wristwatch and buttons were identified by Nanakmal P. W. 5, the sister's son of deceased Tikomal, in an identification test held in the office of the Head Munshi and 3rd Class Magistrate, Shahdadpur, Mr. Muhammad Amin P. W. 7, at which he was present. S. H. O. Khaliqdad then challaned both the appellants in Court on 8‑11‑1960.

4. The statements of the two appellants in Court are brief and are a denial of every allegation levelled against them. They stated that they were Haris of complainant Imamshah, a former Sub‑Inspector of Police, who is on inimical terms with them, had got a prosecution under section 430, P. P. C. filed against them through his Kamdar and had also made application to various officers to get the two appellants ejected from his lands because they had refused to go. This retired Sub‑Inspector is on friendly terms with the police and he has, therefore, brought this false case against the appellants in order to get rid of them from his lands.

5. There is admittedly no eye witness to the murder in this case. The evidence such as it is against the two appellants is purely circumstantial and consists of their extra‑judicial confes sions to the complainant, Imamshah, and their subsequent conduct in pointing out the place of occurrence, the place where the dead body was thrown into the canal and producing the wrist watch and golden buttons belonging to deceased Tikomal. It is necessary to examine this evidence very carefully before reaching a conclusion as to whether it is or is not sufficient for the purpose of bringing home the guilt In this case to these two appellants.

6. The first and the strongest piece of evidence against the appellants in this case is, of course, the alleged extra‑judicial confession made by them to complainant Imamshah on the morning of 23‑10‑1960, even before the lodging of the F. I. R. in this case. It is said that Imamshah sent for the Jalbanis who reside near about the lands of deceased Tikomal because there were some ill feeling then existing between these Jalbanis and deceased Tikomal. Deceased Tikomal is said to have had to recover heavy taccavi loans from Jogi Jalbanl and other Jalbanis. Tikomal is further alleged to have obtained the lease of lands from a refugee contrary to the wishes of Jogi Jalbani who was a prior lessee of these lands. When the Jalbanis arrived Imamshah was not alone but was accompanied by Muhammad Khan P. W. 3, Ghulam Hyder, P. W. 4, More and Paliyo. The two appel lants without much ado are alleged to have admitted their guilt before this gathering. In the F. I. R., of complainant Imamshah which is recorded at great length this confession is a sort of joint confession but in his evidence in Court Imamshah is careful to say that the two appellants confessed separately one after the other It is most important to observe that from the four persons present there who heard these alleged extra‑judicial confessions, complainant Imamshah is the only witness to testify to this effect in Court. Neither Muhammad Khan P. W. 3 nor Ghulam Hyder P. W. 4 have supported Imamshah in regard to these extra‑judicial confessions ; and More and Paliyo have not been examined at all as prosecution witnesses in Court. Thus, we have only the evidence of Imamshah P. W. 2, on this all important evidence against the appellants In this case. It has been brought out in the cross‑examination of the Imamshah that the two appellants are his Haris ; that under his instructions his Kamdar Ali Murad had filed a case against the two appellants under section 430, P. P. C., and that he had made application to the Mukhtiarkar and other officers for removing the appellants from his lands but inspite of all that the two appellants were still on his cultivation.

7. These extra‑judicial confessions have also severely been criticised by Mr. Azizullah Shaikh, Bar‑at‑Law, appearing on behalf of these two appellants. He has pointed out that the actual words used by the confessors are not set out and in this connection, he has invited our attention to a ruling of the Federal Court of Pakistan in the case of Ishaq v. The Crown (P L D 1954 F C 335) and in particular to the remarks of Shahabuddin, J. "The necessity of the Court eliciting the actual words or the substance of an extra‑judicial confession as nearly as the witness can recollect can never be over‑emphasized." Mr. Azizullah Shaikh has also pointed out that there is no mention in these alleged extra‑judicial confessions of the actual part played by each of the appellants and that whereas from the F. I. R., this extra‑judicial confession appears to be a joint confession, yet from the evidence of Imamshah, it appears that the appel lants spoke separately one after the other. Mr. Azizullah also submitted that none of the other four witnesses who heard these extra‑judicial confessions, namely, Muhammad Khan P. W. 3, Ghulam Hyder P. W. 4, More and Paliyo have supported complainant Imamshah on this point.

8. We have applied our own minds to these alleged extra -judicial confessions and we find ourselves unable to rely upon the isolated testimony of complainant Imamshah in this behalf. 1t seems to us that these extra‑judicial confessions are of paramount importance and that the true position in this case is that if we believe in the truth of these confessions and accept them as good evidence then, although the appellants had resiled from them, we may have recourse to the other circumstances such as the pointing out of the scene of offence and the bridge on the Sadda Wah and the recovery of the wrist watch and gold buttons as supporting and corroborating these extra- judicial confessions. But, on the other hand, 1f we are not satisfied with these two extra‑judicial confessions and are not prepared to accept the isolated word of Imamshah, an admitted enemy of these two appellants, then, the remaining pieces of corroborative evidence by themselves will not suffice to support the conviction of these two appellants. Having, in this view, examined the evidence available on the record of this case, so far as these two alleged extra‑judicial confessions are concerned, we have reached the conclusion that it would be most unsafe on the meagre testimony of one inimical witness to place any reliance upon these two extra‑judicial confessions. Accordingly, we disbeliever this strongest piece of evidence relied upon by the prosecution in this case.

9. Then comes the other pieces of evidence such as the point ing out of the place from where the watch and the three buttons were secured as per mashirnama Exh: 24, the pointing of the scene of offence by each of the appellants as per mashirnama Exhs. 26 and 27 and the pointing out of the place on the bridge or culvert over Sadda Wah from where the dead body of Tikomal is alleged to have been thrown into the canal as per mashirnama Exh.

29. Connected with these pieces of evidence, there is also the recovery of the cash memo. as per mashirnama Exh. 25 and the complainant pointing out of the scene of offence as per mashirnama Exh.

28. The mashir examined in the Sessions Court in support of all these mashirnamas is Darya Khan P. W.

4. This mashir was not examined in the committal Court where the other mashir Esso Khan was examined. Appar ently it was because this other mashir Esso Khan or Muhammad Esso had not supported the prosecution in the Court of the committing Magistrate that, although he was present outside the Court of Sessions, he was not examined in this case as a mashir at the Sessions trial. Our attention has been invited to the miscellaneous record of this case which shows that Darya Khan P. W. 9 was reluctant to come as a witness in this case and that a non‑bailable warrant was issued for his arrest and pro duction in Court. In the miscellaneous record, there is a non -bailable warrant issued by the trial Judge to the Station House Officer, Shahpurchakar, directing him to arrest witness Darya Khan and produce him before the Sessions Court at Sanghar immediately for the purpose of giving evidence in this case. There is also the evidence of Dr. Khan Muhammad of Shahpurchakar who was examined by the learned trial Judge in regard to the medical certificate he had issued concerning the illness of witness Darya Khan. All this evidence goes to show that P. W. 9 Darya Khan was not a willing witness and that he had been compelled to attend the Sessions Court and give evidence in this case. This being so, it seems to us that the evidence concerning the surrounding circumstances in this case used to support and corroborate the extra‑judicial confessions is evidence of such a nature that it cannot be implicitly relied upon.

10. In view of this state of the evidence on the record of this case, we found it difficult to uphold the conviction of these two appellants and accordingly, we delivered a short order in Court accepting this appeal and directing that these two appel lants be set at liberty. This judgment contains the reasons for that short order. K. B. A. Appeal accepted.