SIKANDER Versus STATE
JAMALUDDIN H. AHMAD, J. ‑The two‑ appellants, Sikander and Abdul Majid alias Majjan, Kattas by caste, were convicted under section 302 read with section 34, P. P: C., for causing the murder of Moula Bux son of Ghous Bux Soomro and Mst. Allahdini wife of, Rahim Bux Katta. They were sentenced to death and to pay a fine of Rs. 1,000 each, or in default to undergo rigorous imprisonment for 6 months. Appellant Sikander was also convicted under section 13‑D, Arms Act and sentenced to rigorous imprisonment for one year. Five others namely, Mubarak, Nabi Bux, Faiz Muhammad. Umed Ali and Abdullah, all Kattas by caste were also tried for the same murders but were acquitted vide judgment of the Additional Sessions Judge, Jacobabad, dated 27‑6‑1974. The two appel lants have now assailed their conviction by filing this appeal. The case is also submitted for confirmation 4f the death sentence.
2. The prosecution case is that on 3‑9‑1972 at about 9 a.m. complainant Muhammad Saleh, witnesses Allah Dad. Fateh Muhammad, Abdul Hameed and deceased Moula Bux had gone to the Kote of Seth Hundraj for taking fertilizers, as they were his haris. After taking the same whiles they were coming out of the Kote, the deceased was ahead of others. At that time appellants Sikander, Abdul Majid alias Majoo, and acquitted accused Faizoo, Nabo. Mubarak, Umed Ali and Abdullah all came up. Sikander, Faizoo and Majoo had guns while Umed Ali, Naboo and Mubarak were armed with hatchets. Abduilah alone had a lathi. Appellant. Sikauder challenged Moula Bux of being Karo and declared that he will not be spared. Immediately Sikander, Majoo and Faizoo fired ‑their guns at him and he fell down. Others did not go near as they were challenged. The body of Moula Bux was thereafter dragged towards East and placed near the Primary School. While Sikander, Naboo and Mubarak stayed over the body, others went away, and after a short-while brought Mst. Allahdini wife of Rahim Bux dragging, and threw her by the side of the dead body of Moula Bdx. Sikander fired at her, while Umed Ali, Naboo and Mubarak gave her hatchet blows, whereupon she died. After killing the two they all went away.
3. The F. I. R. of complainant Muhammad Saleh was recorded at 2 p. m. at Thul Police Station which is at a distance of about 15 miles from the village. As the S. H. O. was on casual leave A. S. I. Khan Muhammad proceeded to vardat near the Primary ‑School and prepared a mashirnama of the two dead bodies, which were lying in a pool of blood, only one pace from each other. He secured the blood‑stained earth from there, and also from inside the entrance of the Kote of Seth Hundraj and scaled the same in separate parcels. The Primary School was about 60 or 70 paces away from the Kote of Seth Hundraj but the dead bodies were visible from the entrance of the Kote. The A. S I. sent the two dead bodies to the Civil Hospital for post‑mortem examination. He then examined witnesses Allahdad, Abdul Hakim, Fateh Muhammad and Seth Hundraj. The accused could not be arrested as they were not traceable in their houses; but on 13‑9‑1972 he arrested appellants Sikander and Abdul Majid alias Majjoo. From 13‑9‑1972 to 18‑9‑1972 he interrogated the two appellants but none was willing to admit their guilt. However, S. H. O. Nazir Hussain took over the investigation on 18‑9‑72 and interrogated the appellants Sikander and Abdul Majid alias Majjoo on 22‑9‑1972, while they were confined in Police lock‑up at Thul. They volunteered to produce the weapons used in the offence, and led the police officer to village Jhangal Katoo where both of them dug out the ground, which was behind the primary school. Appellant Sikandar took out a gun and produced the same before the S. H. O. while appellant Majjan took out a hatchet, but it was not blood‑stained. The S. H. O. prepared a mashirnama Exh. 15 of these recoveries in the presence of mashirs Murad Bux and Abdul Sattar. On the same day he produced appellant Sikander before the Mukhtiarkar and F. C. M. Thul, for recording his confession, which is Exh.
24. On 25‑9‑72 the S. H. O. registered a separate case under section 13‑F, Arms Act against appellant Sikander, as he could not produce licence for the gun. Acquitted accused abdullah, Umed Ali and Faizoo were arrested from their houses on 26‑5‑72 and an interim challan of the case was submitted on 29‑9‑1972.
4. The blood‑stained earth secured from the vardat i. e. the place where the dead bodies were lying as well as the gate of the Kote, was found by the Chemical Analyser to be stained with human blood.
5. Dr. Mool Chand who held Post‑mortem Examination of the two dead bodies, found the following injuries on them:
Mst. Allahdini
(1) An incised wound 5'x 3' x bone cut on back of neck with vertebrae and spinal cord were cut through and through.
(2) An incised wound 4' x 2' x scalp deep on left incipite temporal region.
(3) An incised wound 2' x on left side of chin.
(4) An incised wound 4'x 1" below injury No. 2.
(5) An incised wound 2' x on left side of forehead.
(6) An incised wound 4' x 1' x structure deep on mid of neck on the front with trachea and food‑pipe cut.
(7) An incised wound 3' x x fasia deep just above on the injury No. 6 on the neck.
(8) A lacerated punctured type of wound ' in diameter with charring present in front of left ear with fracture of bones of face.
(9) Three contusions each 2' x 1' on left arm laterally.
(10) Abrasion 1" x on back of left elbow.
(11) A contusion 4' x 1' each on back of left side of chest.
(12) 5 contusions 4" x 1' each on back of left side of chest.
Out of these injuries 1‑7 appeared to have been caused by a sharp cutting weapon, while injury No. 8 appeared by discharge from a fire arm. Injuries Nos. 9 to 12 were with some blunt and hard weapon. Injury No. 1 individually and all injuries collectively were sufficient to cause death which in her case was instantaneous.
Moula Bux:
(1) A lacerated punctured type of wound 1' in diameter with charring present on left scapular region as the wound of entrance.
(2) A lacerated punctured type of wound 1" in diameter on left side of upper part of chest with fracture of ribs in upper part. As the wound of exit.
(3) An incised wound 1' x on left side of chin with fracture of lower jaw and teeth
(4) An incised wound ' x x lip deep on left side.
(5) An abraded contusion 2' x 1" on left arm.
Injuries Nos. 1 and 2 appeared to have been cawed by discharge from a firearm, while No. 1 and 4 by a sharp‑cutting weapon. Injury No. 5 was by some hard blunt weapon. All the injuries were sufficient to cruse death in the ordinary course of nature. The distance from which the fire arm was discharged could according to him be within 6 feet. The death however was instantaneous.
6. At the trial the prosecution examined, complainant Muhammad Saleh, Allahdad, Abdul Hakim and Fateh Muhammad as eye‑witnesses of the incident. These witnesses were ‑admittedly related to each other, and also to the deceased. Deceased Moula Bux was cousin of Muhammad Saleh, who is father of witness Abdul Hakim Allahdad and Fateh Muhammad also admitted their relationship with the complainant, in cross‑examination. The appellants, (acquitted accused and the prosecution witnesses all reside in the same village. The trial Court did not place reliance on their evidence on account of the contradictions, which slowed that they tried to improve upon their earlier version. The medical evidence also stood in conflict with the version of the incident given by the witnesses. The reasons given by the trial Court have substance. In the First Informa tion Report Muhammad Saleh stated that they were coming out of the Kote "after taking the fertilizers" when Moula Bux who was ahead of them was attacked. But realising that fertilizers could not be carried, personally, he and the other witnesses improved upon the story and stated that they were just going to fetch bullock carts from‑their houses for carrying fertilizers, at the time the incident had occurred. As they stated, that they had been called by tile Zamindar, to collect the fertilizer, how could it be possible that they went without any carts? Then there are contradictory statements about the presence of Seth Hundraj in the Kote and also as to whether he distributed the fertilizer or this was done by his Kamdar Khuda Bakhsh. Although witnesses Muhammad Saleh, Allahdad, Abdul Hakim and Fateh Muhammad all stated that Seth Hundraj was present in the Kote, he himself, when examined as a Court witness denied his presence there, and stated that he came to know about the incident in the evening while he was at Jacobabad. The mashirnania of the vardat does not show any dragging marks of trail of blood from the Kote of Hundraj up to the Primary School, though all the eye‑witnesses said that deceased Moula Bux was shot at the Kote of Hundraj and then dragged from there upto the Primary School. The eye‑witnesses deposed that three persons i. e. the two appellants and Faiz Muhammad had all fired at deceased Moula Bux which had hit him at the thresh hold of the Kote of Seth Hundraj but they are belied by the medical evidence which shows that deceased Moula Bux had only one such injury. On the other hand although the medical evidence shows two incised injuries and one more injury with a blunt weapon on deceased Moula Bux, the eye‑witnesses have failed to state how these were caused. Even the First Information Report is silent about the 'hatchet and the blunt weapon injuries. Besides this there were four blunt weapon injuries on deceased Allahdini and nothing was said about them fn the F. I. R. Subsequent improvement was made by the complainant and eye‑witnesses by saying that laths injuries were caused by Abdullah.
7. The opinion of the Doctor, also was that the death of deceased Moula Bux must have been instantaneous on account of the entry wound on his back; and the eye‑witnesses account of the manner, how Moula Bux was fired at, is totally incompatible with this opinion. The trial Court therefore rightly came to the conclusion that the evidence of these eye‑witnesses is not believable. The possibility that the two murders took is place, earlier than is alleged by the P. Ws. also cannot be ruled out, as the time between the death and the post‑mortem examination in both the cases of Moula Bux and Allahdini is stated by the Doctor as 36 hours.
8. The other piece of evidence against the appellant Sikander is his Judicial Confession Exh. 24, made before the Mukhtiarkar and F. C. M. Thul, in which he implicated himself and also the appellant Abdul Majid. The appellant has retracted from this confession and .the Prosecution examined the Magistrate, who recorded the same. This confession was made on 22‑9‑72 after a prolonged detention in Police Custody from 13‑9‑1972, the date of arrest. A. S. I. P. Khan Muhammad admitted that from 13‑9‑1972 to 18‑9‑1972 neither Sikander nor Abdul Majid were prepared to admit their guilt or produce any weapon and in that context, it is surprising that S. H. O. Nazir Hussain who took up the investigation on 18‑9‑1972 and admittedly did not take any steps till 21‑9‑1972, suddenly found the appellant willing to produce the gun on 22‑9‑1972 and on the same day also willing to confess. In this confession again the story of the murder is as follows:‑
"About 18‑19 days back I and my cousin Abdul Majid had gone to the Lands, because we had to sprinkle fertilizer in the cop. About 8‑9 a. m. we came to the village after finishing the work in the land. When we reached near the School. I saw in the water room of the School, which is towards west and at that time there was chaff lying in it There were deceased Moula Bux and lest. Allandini w/o Rahim Bux Kato, who is my cousin, were sitting in embracing position. I had a single barrel gun without licence and two cartridges. I challenged Moula Bux that you are Karo. He had a hatchet. Thereupon he tried to attack me but I fired at him with gun due to which he fell down. I again fired at him. Mst. Alahdini started running, but she fell down outside the door as her foot grappled with the trousers. I picked up the hatchet of deceased Moula Bux and gave blows with it upon her. My cousin Abdul Majid had a lathi who also gave her lathi blows. Both of them died there. Upon this people of village gathered there. We then went away.
According to this confession deceased Moula Bux received two gun shot injuries which is belied by medical evidence. The gunshot injuries on Mst. Allandini are not explained. nor is there any explanation of the hatchet injuries that were found on the person of deceased Moula Bux. On the face of it the confession is in conflict with the medical evidence. The day of the incident was a Sunday and the School must be closed, but it does not appeal to reason that Mst. Allahdini who was pregnant, carrying a full baby, could go out to meet her, paramour in a public place like the Primary School in the village, during the morning hours. The circumstances in which the confession is made, and the conflicting story that it reveals make it necessary that it should not be accepted without material corroboration. Being retracted its evidentiary value against appellant, Abdul Majid, is almost nil.
11. The evidence of production of weapons of offence, by the two appellants, is also not a sufficiently strong and reliable piece of evidence in this case, so as to lend support to the confession made by appellant Sikander. It is on 22‑9‑1912 i. e. the day when appellants were first interrogated by the S. H. O., that they volunteered to produce the weapons. At that, time they were in police custody at Thul, at a distance of about 15 miles from the village. The S. H. O. must have taken the two appellants in the early hours of tae morning as the mashirnama of production of the gun and the hatchet shows the time 7 a. m. on 29‑9-1972. It appears that on 22‑9‑1972, the investigation suddenly became speedy before sunrise. According to the Magistrate appellant Sikander was produced before him for recording confession at 8 a. m. during the Court hours. In any case the Mashirnama of the production of weapons i. e. gun and the hatchet are of no evidentiary they show a joint production by the two appellants from a place which was on open ground in the heart of the village. Admittedly also the two weapons were not sealed nor was t ere any mark of blood on the hatchet. The conduct of the appellants in burying the weapons in the open ground, within the view of the public also is abnormal and cannot be believed. In that view of the matter also this piece of evidence does not seem to be reliable and cannot be taken to corroborate other evidence.
11. There is one more remarkable aspect of the investigation by S. H. O, Nazir Hussain on the day he secured the weapons, and got the confession from appellant Sikander in that he also got the statements of witnesses Muhammad Hussain and Pir Bux recorded under section 164, Cr. P C. through the same Magistrate. Muhammad Hussain is Bhatti by caste while the caste of Pir Bux is Sewro, out they both lived in the village of the complainant, It is not clear when S. H. O. Nazir Hussain himself recorded the statements of these two witnesses, but definitely they were not examined by the other Police Officer Khan Muhammad who had investigated the offence at the initial stage, and it is not shown as to how and when the nature of this evidence became first known to the investiga tion agency. These two witnesses along with five others, namely, Miran, Kakomal, Allahdino Hundraj and Qazi Qutubudin were summoned at the request of the defence` after the prosecution bad closed its case. They were examined as Court witnesses. Kazi Qutubudin was the S. D. P. O. Kandhkot who was entrusted with the investigation of this case by the S. P. on 29‑9‑1972, after S. H. O. Nazir Hussain had submitted the interim challan. He verified the investigation done by the previous two police officers, made confidential inquiries from the person of tire locality, and recorded the statements of Hundraj, Miran, Kakomal, and Allahdino. He submitted his report to the S. P. which was against appellant Sikander and Abdul Majid only, but the S. P. did not agree with his report. Witness Muhammad Hussain deposed that on the day of incident he heard two gun shots at about 8 to 9 a. m. and on going out of his house he found appellants Sikander and Majoo standing near the two dead bodies of Moula Bux and Allahdino. Sikandar was armed with a gun while appellant Majoo was armed with a hatchet. Witness Pir Bux alias Ptral was also there and in his presence appellant Sikandar informed them that be had murdered both Moula Bux and Allahlini as Karo Kari. He stated that he was not examined by police, and further that the complainant Muhammad Saleh, and P. Ws. Allahdad, Fatah Muhammad and Abdul Hakeem were not present at the vardat. Pir Bux and Miran also gave the same evidence. All the three witnesses said that only appellant Sikandar spoke to them, saying that he bad killed the deceased as Karo Kari. Appellant Maioo according to them did not say anything but was only present there. Kakoomal who bad his shop within the Kote of Hund raj also went to the vardat on hearing gun report. He found appellant Sikandar standing over the dead bodies while appellant Majoo was at some distance. Surprisingly he found the (lead bodies lying without clothes, and he returned home without making any enquiries about the murders. Witness Allahdino also was attracted by the sound of gun‑report, and on reaching the Vardat saw the two dead bodies with appellant Sikander standing near the same. Appellant Mahjoo was at some distance. Witnesses Kakoomal, Miran, Piral and Muhammad had reached the place before him. Witness Hoondraj deposed that, he was not in the village at the time of the incident, but learnt about it at Jacobabad.
12. In his statement appellant Sikander denied the commission of the murders and the production of the gun. About the judicial confession he said "I was detained by the police under police custody and my women folk were tortured. Magistrate even did not inform me that he is Magis trate. Confession is neither true rot voluntary." Similarly appellant Majoo denied the prosecution case and any knowledge about the, confession made by appellant Sikander. About the evidence of Court witnesses no question was put to either of the appellants. They did not examine any defence evidence.
13. The evidence of the eye‑witnesses is inherently doubtful and has been discarded by the trial Court for cogent reasons. The judicial confes sion of appellant Sikander also is in conflict with the medical and other evidence. It has been recorded after the appellant had remained in police custody for nine days and when admittedly he had decided to make any admission before the first investigating police officer. It is not corroborated by any independent evidence ; for the recoveries of the weapons were joint from an open ground. The evidence of the witnesses examined by Court is also doubtful, and though they claim to have arrived first, they were not examined by the police. The contradict each other. Above all the appellants were not questioned about this piece of evidence at all. They were thus given no chance to explain.
14. In these circumstances there seems to be no evidence against the appellants which could safely be relied upon and they are both entitled to all the benefit.
Their appeal is therefore allowed and reference rejected.
MUHAMMAD HALEEH, J. ‑I agree.
Appeal allowed.