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2. The facts of the prosecution case as disclosed in the F. 1. R. are, that the complainant Khuda Bux is brother of Muhammad Bux, father of Saindino, Saindino was married to Mst. Puni daughter of complainant Khuda Bux. Complainant Khuda Bux was living in Garhi, near Murid Khushk, whereas Muhammad Bux and his son Saindino lived in their house near village of Ghaffar Khan Khushk. On the night of incident falling between 28‑8‑1975 and 29‑8‑1975, complainant Khuda Bux went to the house of Muhammad Bux to meet his daughter Mst. Puni. He saw that Muhammad Bux, his wife Mst. Lai and their son Saindino had gone to Riasat for attending a marriage ceremony. Mst. Puni was alone in the house. Khuda Bux stayed with her daughter finding her alone. Sakhan Khushk and Yar Muhammad had also come there and were staying as guests. After taking night meals Mst. Puni went and slept inside the house in the courtyard, whereas Khuda Bux Sakhan and Yar Muhammad slept outside the courtyard. At about mid‑night they heard gun report from inside the house. They all the three rushed inside the house and saw Mubarak son of Khamiso, Aziz son of Bilawal, Jani son of Haider, Mashgool son of Dhani Bux and Sabir son of Umar, all Khushk by caste, present in the house. They saw them on a moon light. Out of them Mubarak was armed with a gun and they ran away. They saw that Mst. Puni had a gunshot injury and she had expired. She was lying on the ground.

The complainant Khuda Bux, the next morning went to Aitbar Khan and reported the incident to him. He advised him to lodge report with Police.

Muhammad Bux, brother of complainant Khuda Bux had dispute over a land with Mubarak. Mubarak used to tell him that he should migrate from there. The accused persons had therefore, come to commit murder of Muhammad Bux and Saindino but as they were absent, they killed Mst. Puni daughter of Mohammad Bux.

3. Complainant Kbuda Bux lodged first information report at Mirpur Matbtlo Police Station on 29‑8‑1975 which was recorded by S. H. O. Hamidullah vide Exh. 7. He visited the "vardat" and prepared mashirnama in presence of mashirs Aitbar Khan and Mazar vide Mashirnama Exh. 16. He collected the blood‑stained earth and ,prepared it into a sealed parcel. He handed over the dead body of Mst. Puni to Police Constable Abdul Latif for sending the same to the Hospital for post‑mortem examination. He prepared the inquest report on the dead body of Mst. Puni vide Exh. 17. He then handed over the Investigation to. A. S. I. P. Muhammad Malook posted at the Outpost Dad Laghari.

4. A. S. I. P. Muhammad Malook .took over the investigation on 1‑9‑1975 and recorded the statements of Sahib Khan, Yar Muhammad and Aitbar Khan. on 2‑9‑1975 accused appellant Hashim was produced before him at Dad Laghari Outpost of Mirpur Mathelo Police Station. One Ranjho produced the accused‑appellant Hashim with a single barrel gun. He secured the gun from the accused‑appellant Hashim in . presence of Mashirs Aitbar Khan and Dur Mohammad vide Mashirnama Exh. 21. He arrested the accused‑appellant Hashim. He recorded' the statement of Ranjho. The accused appellant had no licence for the gun. ‑ He registered a separate case under the Arms Ordinance against the accused appellant Hashim on 3‑9‑1975 at Mirpur Mathelo Police Station. On 3‑9‑1975, he produced the accused‑appellant Hashim for recording his judicial confession before the Civil Judge & F. C. M., Mirpur Mathelo. The accused‑appellant was remanded to judicial custody after confession was recorded. On 4‑9‑1975 he got the statements of witnesses Sakhan, Yar Muhammad and Ranjho recorded under section 164, Cr. P. C. He examined Dillo but found no fire‑arm injury on his person. He. prepared the mashirnama of the exami nation on the person of Dillo vide Exh. 23. On 6‑9‑1975 he recorded statements of Mubarak, Mashgbool, Jani, Sabir and Muhammad Bux. He then submitted charge‑sheet against the accused appellant in Court.

5. Dr. Bhajan Lal conducted the post‑mortem examination on the dead body of Mst. Puni and on external examination found the following injuries on her body:‑‑

(1) Six L. P. T. wounds x " facia deep on the right breast,

(2) Two L. P. T. wounds ' x ' x chest cavity deep on the right side of chest below the breast.

(3) Two L. P. T. wounds " X ' x chest cavity deep on the left side of back of chest near scapular region.

(4) Four L. P. T. wounds " x ' x chest cavity deep on the left side of back of chest around injury No. 1.

On internal examination he found that both the plurae, both lungs and arm were lacerated. From the external as well as internal examination of the dead body the doctor opined that the death of Mst. Puni was due to shock and haemorrhage as a result of injury caused by discharge from a fire‑arm. Injury No. (ii) individually and injuries Nos. (i) (iii) & (iv) collectively were sufficient to cause death in the ordinary course of nature. All the injuries were ante‑mortem. He found injuries Nos. (iii) and (iv) as the exit wounds of injuries No. (i) and (ii) and that all the injuries could be caused by gunshot.

The case of the accused‑appellant is of complete denial. He denies either to have given a judicial confession before Civil Judge & F. C. M., Mirpur Mathelo or the extra judicial confession before Ranjho. He also denies to have produced a single barrel gun. He has pleaded not guilty to the charges, and has not examined evidence in his defence.

6. There is no dispute about the death of Mst. Puni as a result of gunshot injuries received by her on the night of incident falling in between 28‑8‑1975 and 29‑8‑1975. The evidence of witnesses coulped with that of medical evidence as stated above, amply proves that Mst. Puni died due to injuries received by her and that she was murdered. The only dispute is whether the accused appellant Hashim fired the said gunshot on her, resulting in her death and that he is guilty for her murder. The prosecution case in that respect is based on the ocular version of P. Ws. Sakhan and Yar Mohammad, judicial confession of the accused‑appellant Hashim recorded by the Civil Judge & F. C. M., Mirpur Mathelo, his extra.‑judicial confession made before P. W. Ranjho and recovery of gun from the posses sion of the accused‑appellant Hashim, who produced the same.

8. We would, in the first instance, discuss the ocular evidence of P. Ws. Sakban and Yar Muhammad. According to the prosecution version, on the night of the incident the complainant Khuda Bux arid P. Ws. Sakhan and Yar Muhammad were sleeping outside the house of the complainant Kbuda Bux, where they had gone for a visit separately and finding Muhammad Bux, his son Saindino absent from the house stayed in the night there. At about mid‑night time they heard a gun report from inside the house, where Mst. Puni wife of Saindino was sleeping alongwith her child. They went inside the house and saw Mst. Puni lying injured and dead. According to P. Ws. Sakhan and Yar Muhammad, they saw the accused appellant Hashim inside the house with a gun. According to them, they did not see any other culprit. According to P. W. Sakhan, he saw the accused‑appellant Hashim from a distance of about 15 paces ion light of moon. He was running away with his back towards him. The night of incident was dark but there was some light of moon as it was rising. He identified the accused‑appellant Hashim on his voice. The version of P. W. Yar Muhammad is also practically to the same effect. Their evidence would clearly show that they had identified the accused‑appellant on the light of the moon and on his voice. What we further find is that though the complainant Khuda Bux was present alongwith, these two witnesses having heard the gun report he did not identify the accused‑appellant Hashim, though he is clear in his version that he identified his co‑accused though he knew the accused‑appellant Hashim before the incident. What is further deposed by him is, that as soon as P. Ws. Yar Muhammad and Sakhan entered the house on hearing the gun‑report all the culprits had already left the place. His version, therefore, is very clear to the effect that P. Ws. Sakhan and Yar Muhammad had no opportunity to see the accused‑appellant Hashim or the other culprits at all. What we further find is, that had P. Ws. Sakhan and Yar Muhammad seen and identified the accused‑appellant Hashim there is no reason as to why they had not disclosed his name to the complainant Khuda Bux, though it is admitted that P. W. Sakhan is nephew of Khuda Bux and complainant Khuda Bux is brother‑in‑law of P. W. Yar Muhammad. Ordinarily, if they had identified the accused‑appellant Hashim they would have disclosed his name to the complainant Khuda Bux. But it is strange that without disclosing his name to Khuda Bux, they left the "vardat" immediately after the incident, as according to them, they were terrified. It is hard to believe that they must have done so after the incident of brutal murder and when they were admittedly closely related to complainant Khuda Bux and his brother Muhammad Bux in whose house the incident had occurred. Their conduct would clearly show that they were not at all present at the scene of offence at the time of the incident. Had they been present and had they identified the accused‑appellant Hashim they would have disclosed his name to the complainant Khuda Bux, who would have disclosed the name of the accused‑appellant Hashim in the first information report which he lodged the next day morning without any loss of time. But the complainant Khuda Bux neither disclosed the name of the accused‑appellant Hashim in the first information report nor has he said so in his evidence recorded in the trial Court. Admittedly, the matter was reported to the nekmard Aitbar Khan who has been examined by the prosecution, but he is absolutely silent in that respect. We would, therefore, find that the evidence of the two prosecution witnesses namely Sakhan and Yar Muhammad in not at all reliable and worthy of credit. Even otherwise, according to their version, they identified the accused‑appellant Hashim on a light of the moon and on his voice, which is always a weakest type of evidence of identification. We would, therefore, find that the ocular evidence on the record does not connect the accused‑appellant Hashim with the present crime at all.

9. We would then discuss the evidence of judicial confession made by the accused‑appellant Hashim before the Civil Judge & F. C. M., Mirpur Mathelo.

The judicial confession which has been retracted reads as under :‑

"About 12 months ago, I was residing with Ghamtar and was working for him. I also used to reside in the house of Ghamtar. I had an unlicensed gun. On the night of incident. I was sleeping in the cattle pen and wife of Ghamtar was also sleeping inside the house. On the night of incident, Ghamtar and his other members of family had gone to attend a marriage ceremony, but they had left Mst. Puni in the house. At about mid‑night time, I woke up on the barking of dogs and saw that karo' Dilloo was sleeping on the knee of Mst. Puni. Due to Ghairat', I opened a gun fire at kari' Mst. Puni, who died on the spot. Kayo' Dillo ran away, who bad also received some pellet injuries, I then appeared before the Police. I am giving full account of incident."

It has been contended that the judicial confession made by the accused appellant, apart from having been retracted is neither true nor voluntary. On examination, we find that in accordance with the rule of prudence, which has the force of law, the judicial confession is not at all corroborated in its material particulars. There is no evidence at all that the accused appellant Hashim was sleeping inside the cattle‑pen adjoining to the house. According to the accused‑appellant as stated in the judicial confession he woke up on the barking of the dogs and saw that karo' Dillo was sleeping on the knee of Mst. Puni and due to Ghairat' he opened fire at Karl' Mst. Puni, who died on the spot and that kayo' Dillo ran away, who had also received some pellet injuries. Dillo was examined and mashirnama vide Exh. 23 of examination of his body was prepared by Muhammad Malook, A. S. I. P., who did not find any injury on his person. What we further find that the confessional statement does not make any reference to the extra judicial confession made by the accused‑appellant and the

production of gun by him as is the prosecution version. The confessional statement therefore, is not corroborated by any evidence on the record in material particulars. We would further proceed to examine as to whether the confessional statement made by the accused‑appellant is voluntary. It has been contended that he remained in police custody for more than 24 hours nearly for about four days and that his father, mother and brother were also detained by the Police and that the women folk of the accused appellant were also called at the police station, and therefore, the judicial confession was not voluntary. So far as the detention of the accused‑appellant in police custody is concerned, according to the prosecution version. The incident took place on the night between 28th and 29th of August, 1975 and the accused‑appellant was arrested on 2‑9‑1975 at 7 p.m. and that he was produced for recording his judicial confession on 3‑9‑1975. This version is belied firstly by the complainant Khuda Bux, who has deposed that when the police came with him at the "vardat" they arrested the accused‑appellant Hashim from the village; and secondly by P. W. Ranjbo, according to

whom, the accused‑appellant Hashim was arrested on the following day of the night of incident in the afternoon. The police admittedly came with the complainant Kbuda Bux to the "vardat" on the following day of the night of incident and that P. W. Ranjho has deposed' that he produced the accused‑appellant to the police, on the following day of the night of the incident and that they very clearly support the version of the accused appellant to the effect that he was arrested four days prior to the recording of his judicial confession. There appears, therefore, no doubt that accused appellant remained in police custody for more than 24 hours and for nearly about four days. What we further find is that the Vonplainant Khuda Bux has admitted in a very clear terms that father, mother, brother, and women folk of the accused‑appellant were also detained by the police. It is also admitted in the evidence that the Civil Judge & F. C. M., Mirpur Mathelo, who recorded the judicial confession of the accused appellant did not give second warning to the accused‑appellant after calling him for recording his judicial confession after he had allowed him time for deliberations. There is also no certificate available to the effect that the learned Magistrate believed the confessional statement to be true and voluntary. The above‑mentioned circumstances, therefore very clearly seriously affect not only the voluntariness of the confessional statement but also its truthfulness. We, therefore, find that the judicial confession recorded by the Civil Judge & F. C. M., Mirpur Mathelo, of the accused appellant is proved neither to be true nor voluntary.

10. We then proceed to discuss the extra‑judicial confession made by the accused‑appellant before P. W. Ranjho. In the first place, on the admitted facts of the prosecution case, P. W. Ranjho is not the Nekmard of the village of the accused‑appellant. It is in the evidence that P. W. Aitbar Khan is the Nekmard of the Village of the accused‑appellant in which the incident took place. In the circumstances, the accused‑appellant would have confessed his guilt if at all before P. W. Aitbar Khan and not before P. W. Ranjho, as ordinarily he would confess it before his Nekmard. But we find that though Aitbar Khan his Nekmard has been examined, he has remained silent about any confession made by the accused‑appellant before him. What we further find is that the version of P. W. Ranjho is belied by the fact that A. S. I. P. Muhammad Malook of Police Outpost‑Dad Lagbari, has deposed that the accused‑appellant was produced before him alongwith the single‑barrel gun at Police Outpost, Dad Laghari, whereas P. W. Ranjho claims to have produced the accused‑appellant alongwith the single barrel gun at Main Police Station, Mirpur Mathelo. What we further find is, that the delay in recording the judicial confession as discussed above having been found fatal to the judicial confession, for the same reason, would also be fatal to the making of the extra judicial confession as the accused appellant admittedly was taken into police custody about four days prior to his allegedly making the extra‑judicial confession before P. W. Ranjho. We, therefore, find that the evidence of extra‑judicial confession is of no consequence and accordingly we rule it out of consideration.

11. We would then discuss the evidence of the recovery of the single- barrel gun from the possession of the accused‑appellant after he was produced by P. W. Ranjho before the Police. P. W. Ranjho deposes that he produced him alongwith the single‑barrel gun with which he committed murder of Mst. Puni at Police Station, Mirpur Mathelo, whereas A. S.1. P. Muhammad Malook before whom the accused‑appellant was produced and who made the recovery of gun from him, he deposed that he was produced and the recovery was made from him at Police Outpost, Dad Laghari of the main Police Station, Mirpur Mathelo. , The recovery was allegedly made in presence of mashirs Dur Muhammad, and Aitbar Khan vide mashirnama

Exh. 21. P. W. Aitbar Khan has been examined and he is silent on that important aspect of the case, though he is Nekmard of the locality. P. W. Dur Muhammad contradicts P. W. Ranjho that the recovery was made at Mirpur Mathelo Police Station. He supports A. S. 1. P. Muhammad Malook that the recovery was effected at Dad Laghari Police Outpost. According to P. W. Dur Muhammad he is driver of one Zamindar Kadir Bux Khan but he denies, though it has been suggested to him that he is driver of A. S. I. P. Muhammad Malook, the Investigating Officer in the case. He admits that the accused‑appellant was produced at the Police Station prior to his going to the Police Station. According to him, he was not called at the Police Station but he went there with some personal work. In the situation, we find that he is not a reliable witness, specially when P. W. Ranjho, who produced the accused‑appellant alongwith the gun claims to have produced the accused appellant at, Mirpur Mathelo Police Station and not at the Dad Laghari Police Outpost, whereas Dur Muhammad says that the accused‑appellant was produced and the recover of gun from the accused appellant was effected at Dad Laghari Police Station. The prosecution has, therefore, failed to prove the recovery or gun from the accused‑appellant also beyond reasonable doubt.

12. Consequently, none of the pieces of evidence as discussed above, connects the accused‑appellant with the crime. The learned State Counsei, Mr. Murtaza Hussain, for the reasons stated above, has also very rightly not supported the prosecution case against the accused appellant. Accordingly, we find that the prosecution has failed to prove its case against the accused appellant beyond reasonable doubt and he is therefore acquitted. The conviction and sentence passed against him is set aside and the appeal i allowed. The appellant is directed to be set at liberty forthwith if he is not. required in any other case.

S. G. D. Appeal allowed.