P L D 1963 (W (PLP)

In course of his cross‑examination he has gone further and made the following statement :‑ "Two or three persons were already standing near the lai bushes when Jiand accused took us there and produced the gun."

15. So far as the recovery of the single barrel shot gun (Article A) is concerned, he has stated as follows :‑ "Lutufali accused present in Court while in custody told the police that he would produce the gun and took unto a heap of manure near his house and brought S. B. gun from beneath the heap. I see the same in Court as Article A. The Police prepared the memo. after seizing the gun I signed it as correct (Exh. 11/C)." According to him this gun also like the gun (Article B.) recovered at the instance of the appellant had been packed and sealed then and there.

16. As already stated, both these guns were sent to the Ballistic Expert along with the three empties said to have been recovered from the scene of offence. He had (the Ballistic Expert) in course of his examination of the two guns, found that no cartridge could be fired either from the left barrel of the double barrel shot gun recovered at instance of the appellant or the barrel of the single barrel shot gun which Lutufali had taken out and handed over to the Investigating Officer.

17. It is urged in defence that it was probably some Bhuttas who had for their own reasons murdered Mojali, who was not only their servant but their father cousin, while he was sleeping in. the compound of the appellant and had got them falsely implicated, as about five years earlier, Haji Khan, father of Noor Muhammad Bhutto, had been prosecuted under section 307, P. P. C., for having fired at Sahibdino, nekmard of the appellant and his cousin Lutufali, and was ultimately acquitted and nearly at the same time the appellant along with Sahibdino and some other persons, was prosecuted for the murder of one Abdul Ghafoor Bhutto, but was subsequently acquitted. The facts referred to above have been clearly borne out by the evidence of mashir Ali Mardan. There is nothing to show that he had for any ulterior motive gone out of his way and deposed to these facts so as to support the case for the defence.

18. That is why it is urged in defence that Lutufali, accom?panied by Ilahi Bakhsh, brother of the appellant, had gone to Ratodero Police Station soon after Mojali had been murdered by some unknown person. On his arrival there, he had approached the Sub‑Inspector (the same as the investigating officer in this case) and requested him to take down his report. He had, however, not only refused to do so but on account of the influence of Noor Muhammad Bhutto had, arrived there a few hours later, arrested. him in connection with Mojali's murder. Sub‑Inspector Ghulam Muhammad on being questioned on this point in course of his cross‑examination, has stated as follows :‑‑ "It is not a fact that on the night preceding the morning when F. I. R. was lodged, accused Lutufali and Ilahi Bakhsh had come to the Police Station. It is not correct that Lutufali accused and Ilahi Bakhsh had come to the Police Station at about 3 a.m., to lodge a report but I did not record their report and instead at the instance of Noor Muhammad recorded Allah Bakhsh's F. I. R. to foist a case against the present accused."

19. On the other hand, mashir Ali Mardan when questioned on this point has stated as follows in course of his cross‑examination :‑ "In the morning at about 9, I had seen police truck coming from Ratodero side. Accused Lutufali and Ilahi Bakhsh brother of accused Rand, were in the truck with the police. I had seen this before I was called as a mashir. The police called me at 10 a.m., on the same day to act as mashir." Here again, there is no reason to believe, as urged by the learned counsel for the State, that mashir Ali Mardan had chosen to support the defence version because he was interested in the appellant and his cousin Lutufali. Mashir Ali Mardan's version is amply supported by D. W. Azim Shah who has deposed to the effect that on the night of the occurrence at about 3 a.m., he had taken Lutufali and Ilahi Bakhsh in his bus up to Ratodero. His (Azim Shah's) evidence again on this point cannot lightly be brushed aside without any justification.

20. According to Sub‑Inspector Ghulam Muhammad the report of Allah Bakhsh was recorded by him at about 8 a.m., at Ratodero Police Station. It was soon after his report had been recorded that he had proceeded to the scene of offence for the investigation of the case, Ratodero is only about 11 miles away from the scene of offence. He had gone to the scene of offence admittedly in a truck along with the police party (from Ratodero). It was apparently immediately after his arrival there that he had sent for Ali Mardan to act as a mashir in course of the investiga?tion. According to his own version soon after his arrival he had inspected the scene of offence in the presence of mashir Ali Mardan and proceeded further with the investigation. Therefore in all probability, as stated by mashir Ali Mardan, Sub‑Inspector Ghulam Muhammad, along with his party, had reached the scene of offence at about 10 a.m.

21. According to his version, mashir Ali Mardan had actually seen Lutufali and Ilahi Bakhsh in the police truck while it was approaching the scene of offence. Therefore, there is no doubt that they had already been to Ratodero as urged in defence. If that is so, it is quite possible that they had gone there for the purpose given out by Lutufali in course of his defence.

22. As already pointed out the common compound of the houses of the appellant and his cousin Lutufali was open almost on all sides and thus easy accessable to any one who should chose to go there. Similarly, the compounds of the adjoining houses were open. In other words, there were several houses situated near one another in an open space by the side of the road. Two of them which adjoined each other were occupied by the appellant and his cousin Lutufali, while the others were in possession of Ilahi Bakhsh, brother of the appellant, P. W. Muhammad Panah and one Muhammad Bakhsh Bhati.

23. On the night of the occurrence, it is said, the appellant, along with his wife Mst. Basran, was sleeping on a cot at point `B' in the sketch only about 3 feet away from the cot of the deceased. Lutufali had his cot at point `C' in the sketch about 15 feet away from the cot of the appellant and his wife. The cot of Mst. Shahnaz, wife of Lutufali was at point `D' which was about 12 feet away from the cot of the appellant and his wife.

24. According to their version, Allah Bakhsh, Muhammad Panah and Khair Muhammad had gone to the house of the appellant early in the morning following the night occurrence, learning that Mojali, (who was the son of the maternal uncle of P. Ws. Allah Bakhsh and Muhammad Panah) had been murdered and on their arrival had found him lying dead on a cot. They had noticed at the same time some gunshot injuries on his body and some blood lying on his cot and on the ground under?neath. In course of investigation, it may also be added here, some pellets were found on the deceased's cot and on the ground nearby. Dr. Tufail Ahmad had also recovered some pellets from the dead body of Mojali in course of the post‑mortem examination.

25. According to Allah Bakhsh, Muhammad Panah and Khair Muhammad both the appellant and Lutufali were present there at the time when they had arrived at the scene of offence and on being questioned by them had informed that they had murdered Mojali, because he was suspected to be in toe with Mst. Basran, wife of the former.

26. The learned Additional Sessions Judge is of the view that the defence suggestion to the effect that it were some unknown persons, possible some Bhuttas, who had quietly come up to the scene of offence and shot Mojali dead for their own reasons and had run away, could not be accepted as the appellant and his cousin Lutufali had not acted as innocent persons could be expected in such a situation. According to him, if some other person had shot Mojali dead, the appellant and Lutufali would have certainly been roused from their sleep and on discovering what had happened would have raised a hue and cry so as to attract many people living in their neighbourhood. We do not, however, agree with him on this point, because neither the appellant nor his cousin Lutufali had, at any stage, been questioned as to what they had actually done on discovering that Mojali had been murdered by some unknown culprits. It is quite likely that hearing the reports of the guns their neighbors including Allah Bakhsh, Muhammad Panah and Khair Muhammad, had run up to the scene of offence, although they had said that they had gone to the scene of offence on learning of Mojali murder early in the morning following the night of the occurrence.

27. As has already been pointed out the house of Muhammad Panah is to the south of the house of the appellant and his cousin Lutufali. There is only a small open space between their houses. Allah Bakhsh is brother of Muhammad Panah and had possibly been living with him. Khair Muhammad also like 11ahi Bakhsh, brother of the appellant, and Muhammad Bakhsh, appears to be living not far from the scene of offence. All these houses had one compound. The inmates of these houses like those of the appellant must, in the very nature of things have been sleeping in the open on the night of the occurrence and some of them, like Ilahi Bakhsh (brother of the appellant), Allah Bakhsh, Muhammad Panah and Khair Muhammad, must have been roused from their sleep and attracted to the scene of offence by the reports of the guns.

28. If these persons had already been attracted to the scene of offence in this manner it was obviously unnecessary for the appellant and his cousin Lutufali to raise a hue and cry finding that Mojali had been murdered by some unknown culprits. It was probably for their own reason that P. Ws. Allah Bakhsh, Muhammad Panah and Khair Muhammad, along with others, interested in doing so, finding that Lutufali, accompanied by Ilahi Bakhsh, had already left for Ratodero Police Station in order to make a report to the police in connection with the murder of Mojali, had decided to move against him and his cousin the appellant, and that was why a few hours later, i.e., at about 5 a.m.. Allah Bakhsh had started for Ratodero Police Station and got report recorded there at about 8 a.m.

29. Mojali had been in the.service of the appellant .and his cousin Lutufali for some time before the occurrence under con?sideration and had, therefore, been staying with them. There is no evidence to show .that be had developed criminal intimacy with Mst. Basran wife of the appellant, before he had been murdered. As a matter of fact, even from the evidence of Allah Bakhsh Muhammad Panah and Khair Muhammad it does not appear that the appellant, along with his cousin Lutufali, had been suspecting Mojali to be in toe with his wife before the night of the occurrence. If he had, he would in all probability, have dispensed with his services and would not have allowed him to stay on with him. If the appellant had been so indifferent as not to take any action against Mojali in spite of his suspicions against him for some time before the occurrence under considera?tion, it is unlikely that he, along with his cousin Lutufali, had chosen to shoot him dead while he was lying on his cot a few feet away from them, particularly when several other persons, like Allah Bakhsh, Muhammad Panah and Ilahi Bakhsh, were sleeping in the open space in front of their neighbouring houses.

30. It is not explained why Allah Bakhsh, .Muhammad Panah and Khair Muhammad had not caught hold of the appellant and his cousin Lutufali and detained them with the help of other villagers if they had confessed to have murdered Mojah in their presence, particularly when some of their opponents were also living in the neighbourhood and could easily have been called to the scene of offence by them for this purpose. They do not even appear to have questioned them about their guns. As a matter of fact, they have not even said that they had seen any guns in their hands or lying near them at the time when they had arrived at the scene of offence.

31. Besides, it is not explained why the appellant and his cousin Lutufali had gone to the extent of concealing their guns if they had so readily disclosed to Allah Bakhsh, Muhammad Panah and Khair Muhammad that it were they who had killed Mojali on account of the fact that they suspected him to be in toe with Mst. Basran. If as a matter of fact, they had on being questioned by him, straightly confessed before them that they had murdered Mojali, the appellant and his cousin Lutufali would not have concealed their guns in the manner alleged by the prosecution.

32. According to the prosecution, the double barrel shot gun (Article B) had been used by the appellant and the single barrel shot gun by his cousin Lutufali in murdering Mojali. Both these guns, as already stated, had been recovered on the day following the night occurrence and were subsequently sent to the Ballistic Expert named, Mr. Shah Jahan Khan, along with the three empties recovered from the scene of offence. He found in course of his examination that no cartridge could be fired from the left barrel of the double barrel shot gun. He was of the opinion after making the necessary experiment and examination that one of the three empties recovered from the scene of offence (Exh. C/3) was fired from the right barrel of the double barrel shot gun. It means that only the double barrel shot gun, if at all, bad been used in the commission of the murder of Mojali and the single barrel shot gun had nothing whatsoever to do with it. If that were so, Lutufali had no particular reason to conceal it under the heap of the manure near his house. In any case, if only the appellant had shot Mojali dead by using the double shot gun (Article B) both of them (the appellant and his cousin Lutufali) would have not straightly confessed before Allah Bakhsh, Muhammad Panah and Khair Muhammad, as alleged by them, that they had murdered him. In view of these facts and circumstances, we do not think that the appellant along with his cousin Lutufali had made any extra‑judicial confession before prosecution witnesses Allah Bakhsh, Muhammad Panah and Khair Muhammad.

33. Moreover, it is urged by the learned counsel for the defence that it would not be safe to rely on the alleged extra?judicial confession of the appellant, because the version given out by Allah Bakhsh, Muhammad Panah and Khair Muhammad is rather vague and does not clearly indicate what part he had actually played in the commission of this murder and what his cousin Lutufali had done in course of the same. In this con?nection he has relied on the observations and remarks made in Dana v. The State (P L D 1957 Lah. 137) and Manzoor and others v. The State (P L D 1957 Lah. 1023).

34. In Dana v. The State it has been observed "an essential condition for reliance on an extra judicial confession is that there should be no doubt as to the language used by the deponent, but in the present case it is clear that the actual words used by the appellant have been accurately reproduced."

35. In Manzoor and others v. The State it has been remarked "a general statement by witness that a number of persons admitted having committed a crime, valueless without some indication as to which of the person made the admission in question. In the absence of such indication it is not safe to rely on an extra judicial confession."

36. In the present case too, we find that the alleged con?fession of the appellant, like that of his cousin Lutufali, as deposed to by P. Ws. Allah Bakhsh, Muhammad Panah and Khair Muhammad, is vague and indefinite and does not particularly indicate what part he himself had actually played, if at all, in the commission of the murder of Mojali. Therefore, we agree with the learned counsel for the defence that it should not be relied upon against him as has already been done in that o if his cousin Lutufali.

37. It has been noted earlier that according to mashir Ali Mardan at the time when he had accompanied the appellant in connection with the recovery of his gun to the jungle near his house, he had found a number of persons already present there. In view of this fact it is urged by the learned counsel for the appellant that it was doubtful that it was he who had actually concealed the gun (Article B) that was said to have been taken out by him on that occasion. We are inclined to agree with him, as the presence of unauthorised persons referred to by mashir Ali Mardan at the spot, where the said gun was found, renders the entire evidence regarding its recovery doubtful. In any case, it cannot be said that it was the appellant who had used it in committing the murder of Mojali even if it is believed that it was at his instance that the said gun had been recovered by Sub‑Inspector Ghulam Muhammed in course of the investigation and one of the crime empties appeared to the Ballistic Expert to have been fired from its right barrel.

38. We have, therefore, come to the conclusion that the conviction of the appellant in this case is not at all warranted by the evidence produced against him. Hence, allowing his appeal, we set aside conviction and sentence of death. K. B. A./A. H. ??????????? Appeal accepted.