1969 P Cr (PLP)

MUHAMMAD HALEEM, J.‑

Appellant Yaru (25) was tried for the murder of deceased Lalu alias Waloo by the learned Sessions Judge, Tharparkar at Mirpurkhas and convicted under section 302, P.P.C. and sentenced to transportation for life. The appellant has filed this appeal against the conviction and the sentence as aforestated.

2. The first information report (Exh. 9) was lodged by Misri (P. W. 3) at 3 p.m. at Police Outpost Hathrai, which is at distance of 6 miles from the place of incident and was recorded by Imam Bux Head Constable. The facts as disclosed in this report are these : The deceased was the son of complainant Misri and was aged about 18 years. He had three other sons. Out of them one was Mitho and the other two were still minors. Deceased Lalu used to entrap partridges and graze camel. On 4th November 1965 his son Mitho had gone to graze the camel and deceased Lalu had gone towards the west of the village to entrap partridges at about sunrise time. At about 8 a.m. while Misri the complainant, was sitting in his house, his son Mitho and Sumar came running and informed him that appellant Yarn had killed deceased Lalu by inflicting hatchet blows on him. He then went to the scene of offence followed by others. On further inquiry Mitho and Sumar told him that the appellant had asked the deceased not to dig ditches for traping the partridges. This had led to a wordy duel and exchange of harsh words, whereupon the appellant inflicted the hatchet blows on the deceased in their presence and that in consequence thereof he fell down on the ground. Appellant Yarn thereupon took to his heels. No enmity of any kind was alleged by the complainant.

3. Imam Bux (P. W. 9) after recording the F. I. R. went to he vardat and prepared the Mashirnama (Exh. 22) of the vardat in the presence of mashir, Khattan (P. W. 8) and one Muhammad Hasan. The traps set up on the ground near the scene of offence and the blood‑stained earth were secured under this mashirnama. The dead body of deceased Lalu was sent for post‑mortem examination. On the morning of the following day witnesses were examined by him. On 6th December 1965, at about 18‑00 hours the appellant was arrested in village Phul Khuhi. The malitia shirt and trousers worn by him were seized from his person in the presence of mashir Khattan as per Mashirnama (Exh. 24). On the same day the appellant led the said investigating officer near the hedge of his house and pointed to the place where the hatchet was buried which was dug out and taken possession of in the presence of Lakhan son of Fateh Ali and Muhammad Hasan son of Began. These mashies, however, have not been produced and this mashirnama has been brought on record through the evidence of Khattan (P. W. 8). On 9th December 1965, the appellant was produced before the Mukhtiarkar and First Class Magistrate, Diplo, who after giving him time for reflection recorded his confession (Exh. 33). The hatchet, earth, shalwar and the shirt were sent to the chemical analyser for his opinion and according to his report (Exh. 35) the hatchet and the shirt were not stained with human blood but the shalwar and the earth contained human blood.

4. The autopsy on the dead body of deceased Lalu was performed by Dr. Ahmad Ali who had noticed two incised injuries and, according to him, death had resulted because of injury No. 2 which was sufficient in the ordinary course of nature to cause death.

5. The defence of the appellant was a denial .of his participation in the crime and that further he had retracted from the confession on the ground that the said confession was given by him because of fear and the threats given to him by the police. He had also disputed the identity of the clothes that were seized from his person and, according to him, his clothes, were not blood‑stained and that further they were of khaki colour. He had also denied the production of the hatchet at his instance as alleged by the prosecution.

6. At the trial, evidence was led of two eye‑witnesses, namely Mitho (P. W. 4) and Sumar (P. W. 5). Misri (P. W. 3), Naley Chango (P. W. 6) and Lakhiar (P. W. 7) were produced to corroborate the evidence of these two eye‑witnesses. The pro secution also examined Noor Ahmad, Mukhtiarkar and First Class Magistrate, who had recorded the confession of the appellant. The trial Court while convicting the appellant had accepted the evidence of the eye‑witnesses, namely, Mhho and Sumar, although in the committal Court they had by their admissions made dubious the identity of the appellant, yet the trial Court accepted their evidence on the ground that they had in their deposition as recorded in the trial Court fully implicated the appellant and that this fact was duly corroborated by their 164 statements which have been produced by these witnesses. The evidence of the prosecution witnesses Misri, Naley Chango and Lakhiar has also been accepted as corroborating the ocular evidence on the ground that the name of the appellant was disclosed at the very earliest and that it finds mention in the F. I. R. The judicial confession as given by the appellant was also accepted as true and voluntary and that further the recovery of hatchet at the instance of the appellant which, although was not stained with human blood, was also accepted as an incriminat ing piece of evidence on the ground that even though the blood had disintegrated yet it was not entirely deprived of its evidentiary value. The shalwar, of course, seized from the person of the appellant, which contained human blood, was taken as an incriminating piece of evidence against the appellant. The trial Court took also as an incriminating piece of circumstance his disappearance from the village. Thus, the trial Court convicted the appellant as aforestated.

7. Mr. Abdul Hai Qureshi, the learned counsel for the appellant, had contended before us that the ocular evidence could not be relied upon in view of the contradictions as brought on record qua the identity of the appellant. As for the judicial confession he had urged that it was not true and voluntary as the appellant was arrested on 4th December 1965, and not on 6th December 1965 as alleged and that further recoveries were made during his illegal custody and that finally the confession was not true in certain respects. As for the recoveries his contention was that the hatchet was not blood‑stained and that it could not be used as an incriminating piece of evidence and that further the mashir before whom the clothes were seized has not supported the prosecution with regard to this alleged recovery and the arrest of tire appellant.

8. We have examined the evidence in the light of the above contentions. We find from the cross‑examination of Mitho that tie had made obliging admissions in the committal Court to the allowing effect :‑‑ "I did not state in the lower Court that I saw one man going away to the village with the hatchet but I did not identify him, . I did not tell my father that a man was seen going from the site towards the village who had murdered Lalu." Similarly Sumar (P. W. 5) had also made the following obliging admissions in his deposition in the committal Court which have been brought on record :‑ "I did not state in the lower Court that I saw one man running away with a hatchet towards the village and I identified him from his back to be accused Yaroo. I did not state in cross‑examination that I could not identify the man whom I saw going to the village." In the face of these two admissions it is not possible to assess the evidence on the basis that in the trial Court these two witnesses have fully implicated the appellant. We are of the view that the benefit of these admissions has to be resolved in favour of the appellant and if the witnesses have chosen to oblige the appellant they are themselves to be blamed if the appellant is ultimately acquitted. The trial Court while accepting the evidence of these two witnesses has used their 164 statements which were brought on the record as corroborating their evidence at the trial. No such use of these statements can be made. The learned trial court has accordingly fell into error while appraising the evidence of these two witnesses in the context of their 164 statements. The following passage appearing in the judgment of their Lordships of the Privy Council in the case of Brij Bhushan Singh v. Emperor (A I R 1946 P C 38) reproduced here for future guidance :‑ "A perusal, however, of the whole of the judgment makes it apparent, in their Lordships view, that the statements were used as substantive evidence and it was for this reason that the appeal to His Majesty‑in‑Council was admitted. The learned Judges discussed in great detail the statements made by Haliman and Mahabir under section 164 and gave reasons for accepting the facts, or most of the facts, deposed to in those statements, in preference to the evidence given by the witnesses in Court, which in no way helped the prosecution. This was an improper use of such statements. A statement under section 164 can be used to cross‑examine the person who made it, and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated out of Court under section 164 is true." Thus, once the ocular evidence becomes of doubtful nature qua the identity of the appellant, it is also not possible to give due weight to the corroborative evidence which is dependent on the ocular evidence. Accordingly, we are of the view that the evidence of the prosecution witnesses Misri, Naley Chango and Lakhiar would lose its weight and cannot, therefore, be read in corrboration of the ocular evidence.

9. There is now the confession which has been retracted by the appellant. The reason for the retraction was that it was because of fear and threats given to him by the police that he had given tile confession. This allegation, however, has not been substantiated on the record. There is, however, in the evidence of Misri that the appellant was secured by the police from the village by about sunset time. Although no date has been given yet from the context of the sentence it appears that it probably was the day on which the offence was committed. Again Khattan (P. W. 8) has stated that at the vardat he had found the appellant crying and complaining that he was beaten by the police. In his deposition recorded before the committal Court which was brought on record under section 288, Cr. P. C. he had stated in the cross‑examination that all the mashirnamas were signed by him on the same day the incident had taken place. If this statement was true then it must be the 4th of December, on which date the appellant must have been arrested. Imam Bux (P. W. 9) has given the date of arrest as 6th December 1965. The appellant in his judicial confession has also stated the same date when questioned by the Magistrate, but in the body of the actual narration he has stated that due to fear he had run away to the hedge of goats and slept at night in the house and that in the morning he had given the facts to his father and then the police came there and arrested him. By implication, therefore, he has given his date of arrest as 5th December 1965. In the context of the above, the date of his arrest becomes a doubtful feature. We cannot, therefore, hold that the recoveries were made on 6th as deposed to by the investigating officer and that further the appellant was also arrested on that date. The period of detention, therefore, of the appellant as alleged becomes doubtful and when considered in the light of the fact that in the body of the confession itself the appellant had stated that he had given two blows, one with the sharp side arid the other with the blunt side of the hatchet, and that according to the medical evidence both the injuries were with the sharp side of the hatchet, it is not truthful in at least one important respect and that accordingly it would not, therefore, be safe to rely on the retracted confession alone if it was only the incriminating evidence against the appellant.

10. The learned trial Court has relied on the recovery of the hatchet at the instance of the appellant. Although according to the evidence of the chemical analyser, it did not contain human blood yet the learned trial Court has held that the hatchet dogs not lose its full evidentiary value merely because the blood had disintegrated. There is no opinion of the chemical analyser that he had observed disintegrated blood on this hatchet. Consequently, there was no material for the trial Court to come to the conclusion that the blood had disintegrated. Accordingly, this hatchet could not have been taken inter consideration as an incriminating piece of evidence. Besides, the mashirs who had witnessed the recoveries were not examined and the mashirnama was produced by Khattan. The evidence of the recovery of the hatchet is also, therefore, wanting in this case additionally.

11. The recovery of the clothes, such as the shirt and the shalwar proved to contain human blood has not been established beyond a reasonable doubt. Khattan (P. W. 8) had not supported the prosecution case qua the recovery in the trial Court and he was accordingly declared hostile. According to him, the blood stained clothes of the appellant were not secured in his presence. In his deposition as recorded in the committal Court and brought on record under section 288, Cr. P. C., according to him, all the mashirnamas were prepared and signed on the same day when the in cident had taken place, although, according to Imam Bux (P. W. 9) the appellant was arrested on 6th of December and thereafter his clothes were seized from his person. He has also stated in his deposition that he had not observed any blood‑stain on the clothes of the appellant. Even, according to Imam Bux (P. W. 9), the Investigating Officer, the clothes were not scaled at the spot as there was no sealing material either with him at the time when the appellant was arrested or at the police outpost. In the circumstances, therefore, it is not possible to place reliance either on the evidence of the recovery of clothes or the presence of blood‑stains on the clothes at the time of the arrest of the appellant.

12. Even if we were to accept the retracted confession, there is no corroboration of it as the recoveries are of a doubtful nature. The cumulative effect of all the above is that the prosecution has failed to prove the guilt of the appellant beyond a reasonable doubt. We would, therefore, given to him the benefit of doubt and acquit him. We would, accordingly, set aside the conviction and the sentence imposed on the appellant and accept his appeal. Appeal accepted,