THE STATE vs KAMAL KHAN alias MALOO and another

' JUSTICE SAAD SAOOD JAN (CI-IAIRMAN).---The respondents, Kamal Khan alias Maloo and Allah Dawaya, alongwith Muhammad Kabir alias Kala, were tried by the Special Court for Spcedy .Trials, Multan on charges under section 302, read with section 34, and sections 459, 460 and 382, Pakistan Penal Code. The learned trial Court convicted Mohammad Kabir alias Kala, who was a brother of Kamal Khan alias Maloo, respondent, but acquitted the respondents. The State has preferred this appeal against the acquittal of the respondents.

2. The occurrence took place on the mid-night falling between 2nd and 3rd August, 1991, in the house of Haji Muhammad Yousaf, deceased, in village Sheikh Naseer, District Bahawalpur. The deceased was sleeping in the courtyard of his house together with other members of his family. At about mid-night he was woken up by his son Muhammad Iqbal (P.W.12) who had heard some strange noises coming from one of the rooms of their house. The deceased and his son went towards the back of their house where they saw three strangers. The deceased challenged them whereupon one of the strangers twice fired at the deceased. The deceased was hit in the region of the chest and abdomen. The strangers then ran away. Muhammad Iqbal found that the wall of his house has been broken into and the articles stored in the room were lying scattered all over the floor. On checking he discovered that some pieces of cloth and an amount of Rs,1,600 had been stolen. Muhammad Iqbal went to Police Station, Khairpur Tamewali; which was 20 Kilometres away and lodged the first information report at 6-05 a.m. Immediately after the occurrence the deceased was removed to the B.V. Hospital at Bahawalpur. He stayed there till the afternoon of 5- 8-1991 when he succumbed to his injuries.

3. After investigations the respondents as well as Muhammad Kabir alias Kala were put on trial.

They pleaded not guilty to the charges against them and alleged that they had been falsely implicated on account of the political rivalry. They did not lead any evidence in their defence.

4. The case against the respondents rested upon the extra-judicial confession which they allegedly made before the local lamberdar, Ghulam Rasool (P.W.6) in the presence of Muhammad Jaffar (P.W.7) about two months after the occurrence. Gulam Rasool (P.W.6) stated: "They came to me on 8-10-1991 at about 9.00 a.m. Kamal alias Mala and Allah Dawaya accused jointly stated to me that they had gone with Kabir accused for theft. They also told me that Kabir accused was having a gun. He injured Hafiz Muhammad Yousaf and we ran away. They also told me that they had broken into a house and had stolen cloths and in the meantime when Kabir fired at Hafiz Mohammad Yousaf we ran away. They requested me to go to Iqbal complainant for help.

They also requested to be produced before the police. We took both the accused to Police Station Khairpur Tamianwali and produced them before the SHO and he arrested both of them."

' Muhammad Jaffar (P.W.7) supported the statement of Ghulam Rasool with the difference that according to him the two respondents had separately and not jointly made confessions with regard to their participation in the occurrence.

5. The two respondents belong to Hamidabad whereas Ghulam Rasool was the lamberdar of village Sheikh Nasecr. It is somewhat odd that instead of approaching their own lambcrdar for making confession the respondents should have chosen to go to the headman of a neighbouring village who could not have any sympathy for them. Apart from that till they met Ghulam Rasool (P.W.6) there was no evidence against them which could cause concern to them. In the circumstances it seems improbable that they would have voluntarily confessed to a crime which was likely to lead to their conviction on a capital charge. Even otherwise too if the version of Ghulam Rasool (P.W.6) A is accepted as correct, it was the case of a joint confession which could not be used against either of them. The learned Trial Court was therefore justified in not acting upon it.

6. The only other piece of evidence which might possibly link the respondents with the occurrence was the alleged recovery of some pieces of cloth stated to have been stolen from the house of the deceased, from their possession. Now, Muhammad Jaffar (P.W.7) was one of the recovery witnesses. He stated that these pieces of cloth were of the common pattern. It was not the case of the prosecution that they bore any special marks. In the circumstances, even if the evidence relating to the recovery of the pieces of a cloth is accepted as correct, it can hardly be said that these were the same which had been stolen from the house of the deceased.

7. There was no other evidence available on the record to link the respondents with the occurrence.

The learned trial Court was therefore justified in acquitting them of the charges against them. This appeal is without any merit. It is hereby dismissed.