P L D 1975 Karachi 84 (PLP)

TUFAIL ALI A. REHMAN, C. J.‑All the appellants in this case have been convicted by the learned III Additional Sessions Judge, Sukkur of an offence punishable under section 302 of the Penal Code read with section 149 of the same Code and have been sentenced to imprisonment for life. 2 The appellants arc all closely related inter se and it is the prosecu tion case that at about 7‑30 p.m. on the 9th July 1969, one of them, namely Sawan, came to the house of the first informant Qaimdin who is an uncle of the deceased and took the deceased alongwith himself whereafter the deceased has not again been seen alive. The next morning witness Jiand Wado came to the first informant and informed him that his nephew had been murdered by four of the appellants namely Pahlwan, Ali, Luqman and Sawan, saying that this information had been given to him by one Muhammad Usman who had seen all these persons taking away the dead body near village Ali Leghari. It is claimed on behalf of the prosecution that a first information report could not be lodged because there vas no police officer at the Dad Leghari Police Outpost to which they went but, in the meantime at 7‑30 a.m. on the 10th, one of the appellants, namely Luqman, lodged a first information report at the police station alleging an offence against some of the prosecution party under sections 457 and 382, Pakistan Penal Code. As a result of this first information report the police came to the village and there Qaimdin lodged his first information report. An investigation ensued in both cases; in regard to the .present case it suffices to say that in the course of this investigation, it is said that the appellant Ali produced a revolver and some empty cartridges while he, Luqman and Dur Muhammad produced lathis: Three of the appellants namely Pahlwan, Ali and Dur Muhammad also made statements before a Magistrate which were sought to be used as confessions though, as I shall presently state, it does not seem to me that they amounted to confessions at all. Both cases were duly sent up for trial and the learned Judge acquitted the accused in the counter‑case but convicted the present appellants as I have already stated.

3. There was in this case against the appellants admittedly no ocular testimony whatever. The convictions rest upon an extra judicial confession said to have been made by four of them namely Pahlwan, Ali, Luqman and Sawan to Usman whom I have already mentioned and the three judicial confessions. There was, of course, the evidence of the recoveries which I have mentioned and which are admitted but in view of the fact that the deceased sustained no fire‑arm injuries and that none of the lathis are show to be blood‑stained this evidence is of no value.

4. So far as the extra judicial confessions are concerned, I think, that for more reasons than one this evidence must be entirely rejected. In the first place it is extremely doubtful that they were admissible in evidence a all. The person to whom they were made is Usman who was examined as witness in the committal proceedings but not in the Court of Session, it being claimed that he was dead by the time the case came up for trial in that Court. As to his death, we have no real legal evidence. A process‑serve was examined who said that he could not serve the summons upon Usma because he was told by witness Band Wado that Usman was dead and he produced a statement said to have been made before him by Jiand Wado to that effect. Jiand Wado himself was examined for a different purpose, that is of corroborating Usman but, curiously enough, the prosecution put him no question whatever as to whether Usman was alive or not. Clearly, therefore, the statement which the process server recorded cannot be used in evidence and in any case could have been used only to corroborate Jiand Wado who, however, does not say anything in regard to Usman's death. There was thus no evidence at all that Usman was dead and it is well estab lished that in order to make the previous deposition of a dead witness admissible death must be strictly proved.

5. No doubt Jiand Wado corroborates the evidence of Usman, were it available, inasmuch as he says that Usman told him of this and that in consequence he himself went to inform Qaimdin. In the absence, however, of Usman's own evidence this evidence again is inadmissible.

6. Even if, however, the depositions of Usman in the committal Court were to be regarded 'as legally proved evidence in the Court of Session Usman does not say which of the four appellants told him that they had committed the murder of Ismail. Extra judicial confessions in their nature are evidence of the weakest kind, and, although admissible, Courts usually insist upon knowing the precise words in which the confession was expressed if that be possible. There is not only no such thing here but these are what are normally called joint extra judicial confessions which can hardly be regarded as of any value and probably even inadmissible. Even if one knew which particular person made the confession it will not be available for use against the others for that particular person could not be said to be acting as an agent of the others.

7. Moreover, although Usman does say that they were carrying the body of the deceased Ismail, he also says that the body was wrapped up and, therefore, the identity of the body as being that of Ismail rests only upon what the appellants themselves are alleged to have told Usman. All in all, therefore, the extra judicial confessions are of no value whatever.

8. The only other evidence against the appellants is that of the so‑called confessions. Now all these three confessions are to the effect that some thieves came to the house of the appellants and that the appellants tried to catch one but he escaped though he was injured. Pahlwan's con fession does not even admit his participation although those of Ali and Dur Muhammad do and they also say that Pahlwan did not participate. These confessions, therefore, really admit no offence. Even it they be regarded as being admissions of having killed the thief, whoever he was, although the admission is only of injuring him in the absence of other evidence a con fession must either be accepted in full or rejected in full and since these state ments claim a right of private defence upon these confessions, it is obvious, that no conviction can be sustained.

9. The learned Judge, however, in the course of a long judgment has speculated into various matters of probability including motive but it seems to me that in the absence of any legal evidence this was a totally unnecessary exercise. He would also seem greatly influenced by the fact that in the counter‑case he not only acquitted the accused persons but held the present cast false. He says "Though the merits of this case are not to be discussed in the instant case yet it would be advisable to mention here that I have already concluded in the counter‑case the story put forward by the accused in that case is false and that this story was hatchad by them just to escape punishment for murdering the said Ismail." It is to be observed that although the learned Judge says that the merits of that case are not to be discussed in the present yet the fact that he held this case false in the course of the judgment in the other case has obviously weighed with him. This was entirely wrong. No doubt the purpose of F trying counter‑cases together is to ensure that inconsistent findings are not given but each case must be decided on the basis of the legal evidence given in that case. If such evidence had been brought in this case as to justify the conclusion that the case of the appellants was false that would be a different matter. Even if, however, that conclusion could be reached it did not automatically follow that the prosecution had proved their case.

10. Neither the Public Prosecutor in the trial Court nor learned counsel who appeared for the State before me supported the convictions.

11. In view of what I have said above we came to the conclusion at the end of the hearing of this appeal that the convictions could not be maintained and we accordingly allowed the appeal and acquitted the appellants; the above is a record of my reasons for so doing. FAKHRUDDIN G. EBRAHIM, J.‑I agree. S. A. H. Appeal allowed.