P L D 1967 Karachi 800 (PLP)

Dates of hearing : 21st and 28th February 1966. The appellant Sukhio was tried along with Sanwan, Sherdil and Pishori for an offence under section 302, P. P. C. for the murder of Mst. Sajan, wife of appellant Sukhio. Sanwan, Sherdil and Pishori were acquitted whereas the appellant was convicted under section 302, P. P. C. and sentenced to transportation for life.

2. The case of the prosecution briefly is that Mst. Sajan was found in a compromising position with Khamiso by one Pinjo about four days before the incident. Pinjo is said to have informed Sukhio about it. Sukhio consequently took Sanwan, Sherdil and Pishori, who are his relations, into confidence and conspired with them to kill Mst. Sajan as Kari. They consequently took Mst. Sajan in their bullock cart on the pretext of taking her to another village where the sister of Sukhio lived. They were seen on the way going in the bullock cart by Ghulam Murtza P. W.

3. At about half a mile from the village where the sister of the appellant lived they killed Mst. Sajan and threw her dead body into a river nearby. Sukhio thereafter is said to have gone to Sojhro Khan P. W. 1, a Nekmard of the locality with a view to inform him. Sojhro Khan was not in his village as probably he had gone to Sukkur and Shikarpur. He came back after four days and was informed by Sukhio that he had committed the murder of his wife Mst. Sajan as Kari. He was also given the details about how Pinjo had seen Alst. Sajan and Khamiso in a compromising position and about how the conspiracy of mur dering Mst. Sajan was entered into and about how she was done to death. He was also informed about Gnulam Murtza having seen them going in a bullock cart on the way. Sojhro Khan also inquired from Sanwan, Sher Dil and Pishori after getting the facts from Sukhio. The three acquitted accused also confirmed word for word what was said by Sukhio. Sojhro Khan thereafter entrusted Sukhio to Khurshid P. W. 2. who is related to him for taking him to the police station. Sukhio was consequently pro duced at the Rustam Police Station where first information report was lodged on behalf of the State on the 22nd of March 1963 at 7 p.m.

3. The police during the course of investigation arrested the appellant and saw the place where the murder of Mst. Sukhio was committed at his instance. Blood was also noticed at that place and consequently earth was scrapped and secured by the police for which mashirnama Exh. 9‑B was made in the presence of Sharaf Hussain P. W.

5. Blood was also scrapped from the bullock cart produced by the appellant on 23rd of March 1.963 by the police for which Mashirnama Exh. 9‑A was made. These scrappings were sent to the Chemical Analyser and his report Exh. 10‑A discloses human blood on them. After the usual investigation was completed, the appellant was challaned.

4. The appellant, when questioned, denied the allegations made against him and attributed the filing of the case to enemity with Sojhro Khan and others. No witness in defence was examined.

5. The question whether Mst. Sajan received injuries and was consequently killed is dependent upon the extra judicial con fession made by the appellant and his statement under section 342, Cr. P. C. The dead body of Mst. Sajan has not been found out. In the extra‑Judicial confession made by the appellant he admitted before Sojhro Khan that he and his relations had jointly killed Mst: Sajan with hatchets and thrown her into a river. He took a somersault in his statement under section 342, Cr. P. C. and said that his wife Mst. Sajan had cried a natural death about one and a half years before the alleged incident. According to him she died at the time when she had delivered a child. The statement under section 342, Cr. P. C. obviously is not worthy of reliance in that if Mst. Sajan had died about one and a half years before the incident and at the time of delivery there would be no earthly reason for concocting a false case in relation to her murder one and half years after. Nobody would have the courage to give evidence of that kind and be exposed to the risk of being pro secuted. The whole village, in my opinion, would have turned against Sojhro Khan and made a common cause of putting their case before the police that the death of lust. Sajan had occurred one and a half years before the incident. Consequently I am of the view that Mst. Sajan was killed at the time of the incident as alleged by the prosecution.

6. The next question which needs to be determined in this appeal is whether the appellant was responsible for committing the murder of his wife Mat. Sajan. The case of the prosecution mainly hinges upon the evidence of Sojhro Khan alone. Even the learned counsel for the State has rightly conceded that the fate of this case would depend primarily upon the evidence of Sojhro Khan. Sojhro Khan has given evidence to the effect that the appellant came to him about four days after the incident and told him that he had killed his wife Mst. Sajan along with Sanwan. Sherdil and Pishori with hatchets on account of having been informed by Pinjo that he had seen Mst. Sajan and Khamiso in a compromising position. Sojhro Khan has also stated that the appellant had informed him that he and his relations had taken Mst. Sajan from their house on the pretext of taking her to the village where his sister lived. Sojhro Khan has also stated that the other three acquitted accused were also in his Otak at the time. when the appellant gave him this information. According to him, he had also made inquiries from the acquitted accused who had confirmed before him the statement made by the appellant. Khurshid Ahmad P. W. 2 has also repeated the story given by Sojhro Khan. The evidence of Sojhro Khan and Khurshid Ahmad therefore is linked together and would E‑ink or sail together. The evidence of these two persons, in my opinion, suffers from two infirmities Which cannot be explained. If the statement given by Sojhro Khan and Khurshid Ahmad before the police were believed that the other three acquitted accused were in their Otak at the time when the appellant made the extra- judicial confession before them there is no earthly reason why those acquitted accused would not have been sent to the police along with the appellant. The admitted position on the record is that the appellant alone was sent to the police and he alone was arrested on that day. No explanation whatever has been given as to why the appellant alone was taken to the police station and three others were permitted to go away. The fact that the acquitted accused were not produced before the police smacks of concoction against them. It appears that Sojhro Khan and Khurshid Ahmad had seen through the hollowness of the story put forward by them and therefore tried to wriggle out of their earlier position and said before the Sessions Court that the acquitted accused had not come along with the appellant at the time when he had made the extra judicial confession. They had been confronted with their statements made before the police and have been shown to have spoken a lie in the Sessions Court. Whatever be the position whether the three acquitted accused came along with the appellant in the Otak of Sojhro Khan or not the fact remains that Sojhro Khan and Khurshid Ahmad at ore stage had implicated Sanwan, Sherdil and Pishori and had attributed to them the confirmation of the story given by the appellant and at another stage they said that they were neither in their Otak nor had they made any extra‑judicial confessions before them. Under these circumstances, the inescapable conclusion is that these two persons had been giving false evidence of the acquitted accused. If they had given fare evidence in respect of the acquitted accused no guarantee can be attached to their evidence in so far as the appellant is concerned. Under these circumstances the evidence of Sojliro Khan and Khurshid Ahmad to me would not be of the type which would be implicity relied upon in so far as the extra‑Judicial confession made by the appellant is concerned.

7. The learned counsel for the State laid great stress on the corroboratory circumstances appearing in this case and vehemently argued that the lacuna or the infirmity in the evidence of Sojhro Khan and Khurshid Ahmad against Sukhio appellant would be covered up by the circumstantial evidence. My own view is that the distinction between the judicial confession and the extra- judicial confession does not lie in whether they are legally sufficient for basing the convictions of the persons upon but in the degree of caution and proof required in their case. The evidence of Sojhro Khan and Khurshid Ahmad relates solely to the extra -judicial confession made by the appellant. Under these circum stances the evidence of Sojhro Khan and Khurshid Ahmad would not be of the normal type which if not implicitly relied upon, would be sufficient for conviction if there is corroboration of their evidence available on the record. My own view further is that in tie case which depends solely upon the evidence of the extra‑judicial confession, the extra‑judicial confession has to be proved strictly and utmost circumspection has to be exercised for the purpose of accepting it. It is after a conclusion has been reached that the evidence relating to the extra judicial confession is true that the corroboratory circumstances would be called in aid to support the evidence of the witnesses. In this particular case the evidence of Sojhro Khan and Khurshid Ahmad being doubtful, the question of the corroboratory circumstances being on the record would not be very material. On this view of the matter, I consider the evidence against the appellant doubtful and therefore giving him the benefit of the doubt, I accept his appeal and acquit him. The appellant is in jail and shall be released forthwith if not required in any other case. K. B. A. Appeal accepted.