1990 PLP 1055 (MLD)

5. On the assessment of evidence the learned Additional Sessions Judge acquitted co‑accused Joot Ali. He, however, found the present appellants guilty and convicted them accordingly.

6. I have heard the appellants in person and Mr. Zawar Hussain Jafferi, learned A. A. G. on behalf of State, who has supported the conviction recorded against the appellants.

7. The fact that deceased Karim Bux died an unnatural death is not in controversy. Dr. Karim Bux Bhatti (P. W.3) who had conducted the post‑mortem examination on the dead body of Karim Bux found his skull fractured. According to Medical Officer the injury No. 1, caused to deceased Karim Bux was the result of hard and blunt substance and was individually sufficient to cause death in ordinary course of nature. He also found the lobes of both the ears of deceased Karim Bux torn indicating thereby that the ear‑rings were pulled from the ears of deceased Karim Bux.

8. The case of the prosecution mainly hinges upon the following items of evidence:‑ (i) Direct evidence consisting of complainant Hamzo (P. W.1), Haleemullah (P. W.2) and Ghulam Hyder (P. W.4). (ii) Recovery of ear‑rings belonging to deceased Karim Bux from the possession of appellant Shabbir Hussain Shah. (iii) Recovery of clothes of deceased Karim Bux at the instance of appellant Liaqat Ali. (iv) Evidence of foot‑prints against both the appellants. (v) Judicial confessions of both the appellants.

9. Admittedly deceased Karim Bux resided in his shop situated near the graveyard of the village all alone. Complainant Hamzo (P. W.1), Haleemullah (P. W.2) and Ghulam Hyder (P. W.4) are closely related to deceased Karim Bux. Ghulam Hyder (P. W.4) admits that the house of complainant Hamzo is about 60 or 70 paces away from the place of occurrence. He gives the distance between the house of Haleemullah (P. W.2) and the wardat as 50 paces. Ghulam Hyder himself resided at a distance of 30 paces from the place of incident. Admittedly Hamzo (P. W.1), Haleemullah (P. W.2), and Ghulam Hyder (P. W.4) are married persons and they have got their family members also. In such a situation, their act of sleeping near the shop of deceased Karim Bux just to give him company does not appeal to reason. It will not be out of place to mention here that deceased Karim Bux was a neglected person and according to Ghulam Hyder (P. W.4) he used to cook his meals himself.

10. Admittedly in F. I. R. (Ex. 9) which was lodged after abnormal delay only two persons were shown as culprits. Many improvements were made in the prosecution story and in his subsequent statement complainant Hamzo (P. W.1) claimed to have seen three persons running away and saw them clearly on torch light. He also made improvements by introducing the theft of household articles and clothes belonging to deceased Karim Bux. Muhammad Shareef (P. W.6) who is the zamindar of the village states in clear terms that complainant Hamzo had come to him at 8.00 a.m. and apprised him of the incident, whereupon he went to the place of WARDAT and found 15 or 20 villagers standing near the dead body of Karim Bux. All these factors when combined together lead to a conclusion that it was an unwitnessed crime. The delay in lodging F. I. R. lends support to my above conclusion. It appears that the burglars had entered into the shop of deceased Karim Bux and while they were going away with the booty deceased Karim Bux woke up and offered resistance, whereupon he was given a Danda blow causing his death. The entire story was cooked up after Karim Bux was found dead in the morning. The story that is being deposed to by the witnesses or the version of the opportunity which the witnesses had to observe the facts connected with it must be credible and in keeping with the ordinary course of human affairs.

11. The manner in which the witnesses claim to have seen the culprits is again improbable. Admittedly all the culprits were not known to complainant Hamzo (P. W.1), Haleemullah (P. W.2) and Ghulam Hyder (P. W.4). They saw a glimpse of two or three persons running on torch light. Where people observe, under stress and emotion, an occurrence for a short space, from different angles with different capacity to observe and memory powers, the possibility of mistaken identification cannot be ruled out.

12. Muhammad Maroof A. S. I. (P. W.9) who had conducted the investigation in this case claims to have received secret information on 1‑7‑1980, that appellants Shabbir Hussain Shah, Liaqat Ali and Joot Ali were the culprits in this case. He has testified that on 6‑7‑1980 he arrested appellant Shabbir Hussain Shah from the bus stand of Kumb and recovered two golden ear‑rings from his possession in presence of mashirs Muhammad Shareef and Ali Gul. On the same lay the police officer is said to have arrested appellant Liaqat Ali and recovered clothes of deceased Karim Bux lying in a box in his house. Muhammad Shareef (P. W.6) who is zamindar and NEKMARD of the village and has acted as mashir throughout the investigation has, however, admitted as follows:‑ "I was Councillor of village Bagodaro. Police has brought accused Shabbir Hussain Shah and Liaqat Ali at place of wardat after 2 or 3 days after their arrest. 5‑6 persons had gathered at wardat when the police had brought the accused at wardat. Ghulam Hyder, Hamzo and Abdul Alim were also present at wardat on that day. Then they were brought to Kotdiji."

13. According to the case of the prosecution, both the appellants were produced before Abdul Kabir, Civil Judge and F. C. M., Mirwah on 7‑7‑1980 and after recording their judicial confessions they were remanded to judicial custody. It, therefore, follows that the appellants were taken to the WARDAT prior to 6‑7‑1980. Muhammad Maroof A. S. I. (P. W.9) has, therefore, not come out with truth when he stated that both these appellants were arrested on 6‑7‑1980. Since g the witnesses had already seen the appellants prior to the identification parade, no reliance can be placed upon the evidence 'of Hamzo (P. W.1), Haleemullah (P. W.2) and Ghulam Hyder (P. W.4), who have undoubtedly tried to magnify the case and to improve upon it at different stages.

14. The circumstances attending to the case make it crystal clear that both the appellants were arrested prior to the date when their actual arrest was shown. F Muhammad Shareef (P. W.6) has stated so in no uncertain terms. In this view of the matter, the evidence of recoveries and foot‑prints also loses its effect, specially when the tracker was given up (vide Ex. 35).

15. I now proceed to examine the judicial confessions of both the appellants. Abdul Kabir, Civil Judge and F. C. M., Mirwah (P. W.8) has testified to this effect. The character of these confessions (Exs. 33 and 34) becomes doubtful after it is proved to the satisfaction of this Court that the appellants were arrested prior to the date of their actual arrest. They were under wrongful confinement and the possibility that the confessions were obtained after applying third degree methods, therefore, cannot be ruled out. Even otherwise the above confessions (Ex. 33 and 34) are self‑exculpatory so far as the murder of Karim Bux is G concerned as both of them had implicated co‑accused Joot Ali (since acquitted) for the murder of Karim Bux. They only admit about the theft and nothing beyond that.

16. It is also the case of appellants that Abdul Kabir, Civil Judge and F. C. M., Mirwah is related to Muhammad Maroof A. S. I., who had purposely taken them to Civil Judge and F. C. M., Warah for getting their judicial confessions recorded, leaving other Magistrates. An attempt has been made to prove this allegation from a judgment in Sessions Case No. 246 of 1980 (Ex. 43) in which Sessions Judge, Khairpur had taken exception to the conduct of these officers. However, for the reasons which I have recorded above, it would be wholly unsafe to depend upon judicial confessions of both the appellants for making them as sole basis for recording conviction against them.

17. I would, therefore, accept the appeal and set aside the conviction and sentence awarded to appellants by IInd Additional Sessions Judge, Khairpur. Appellant Liaqat Ali is on bail and he is discharged from his bail‑bond. Appellant Shabbir Hussain Shah is in custody. He shall be released forthwith, if not required in any other case. N.H.Q./S‑551/K Appeal accepted.