1. ' RAHAMT HUSSAIN JAFFERI, J.---Brief facts leading to the present appeal are that on 5-5-1987 P.W.1 complainant Mahboob, his four brothers namely deceased Allah Bux, P.W.8 Suhrab, Sher Khan and Mehrab were living together in their houses which were surrounded by a common hedge. On the night of above date, their family members had gone to attend marriage; therefore, the complainant and deceased Allah Bux were present in the house. On the same night Muhammad Nawaz and Nimano Machhi were also sleeping in the said house with them. At about 1-30 a.m. They woke up on gunshot report and saw appellant Kauro standing near the cot of deceased armed with gun. The complainant enquired from him about his presence whereupon he threatened him to keep quiet otherwise he would be killed. The appellant disclosed that he had taken the revenge; therefore, the complainant kept quiet but after some time Nimano Machhi came and then the appellant and Nimano Machhi went to an unknown place. In the morning he saw the deceased Allah Bux lying dead on the cot. He raised cries on which several persons arrived there. He left Muhammad Nawaz at the dead body and went to police station where he lodged the report at 7- 30 a.m.
2. ' The police after arresting the appellant produced him before the Magistrate where he gave judicial confession. After completing the investigation, the police challaned the appellant in the Court.
3. ' The learned 1st Additional Sessions Judge, Shikarpur tried, convicted the appellant for offence punishable under section 302, P.P.C. And sentenced him to suffer imprisonment for life and fine of Rs,10,000 or in default thereof to suffer R.I. For one year under the impugned judgment dated 30-4- 1997.
4. ' I have heard the Advocate for the appellant, Assistant Advocate-General for the State and perused the record of this case very carefully.
5. The learned counsel for the appellant has stated that the case of prosecution rests upon two pieces of evidence viz. Ocular testimony and confession as there is no Ballistic Expert report. As regards the ocular testimony he has stated that prosecution has relied upon complainant P.W.1, P.W.3, P.W.7, P.W.8 and P.W.10; that their evidence is contradictory to each other; that the incident was unwitnessed. As regards the judicial confession, he has stated that the appellant had enmity with Junaid Ahmed Soomro the then MPA as he wanted to purchase the land of appellant adjacent to his land but he refused; therefore, he has been involved in the case at his instance by getting real culprits released from the case who were his haries, nominated in the F.I.R. By the complainant, and foisted the case upon the appellant. He has further stated that the incident took place within the jurisdiction of Sultankot police station whereas the confession was recorded by a Magistrate of Lakhi which was 40 miles away from the place of incident though there were several Magistrates in Shikarpur but the appellant was not produced before the said Magistrates in spite of the fact that the police had passed from Shikarpur; that the Magistrate was pliable, friend of Junaid Ahmed Soomro and police; therefore, he obliged them and recorded the confession. He has further stated that the confession was retracted which is neither voluntarily nor true nor corroborated by other piece of evidence; therefore, it is insufficient to convict the appellant.
6. ' The learned A.A.-G. Finding the arguments of the learned counsel for the appellant supported from the evidence, has not supported the impugned judgment and further added that the ocular testimony is not confidence inspiring and the prosecution has no explanation to offer as to why the appellant was not produced before the Magistrate of Shikarpur, which was about 6 or 8 kilometers away from the place of incident and produced the appellant before a Magistrate of Lakhi which was 40 kilometers away from the place of incident. He has further stated that possibility of manipulating the confession cannot be ruled out.
7. ' I have give due consideration to the arguments, gone through the evidence with the help of learned counsel for the Appellant and found that the case of prosecution rests upon above mentioned two pieces of evidence.
8. ' As regards the ocular testimony, the P.W.1 complainant gave the same details of the incident as mentioned in the earlier part of the judgment; therefore, need not be repeated. In the cross- examination, the defence counsel enquired from the complainant as to whether he had stated in the F.I.R. That Talib, Ghazanfar, Darya Khan, Motan and Nimano were murderers of the deceased Allah Bux and they committed the said murder to take revenge of the murder of one Bachal Machhi brother of Talib but he denied the said facts. Similar questions were asked from the Investigating Officer who admitted that the complainant had deposed such facts in the F.I.R. Thus, it has been established that in the F.I.R. The complainant nominated the abovementioned persons as murderers of the deceased but in Court he changed his statement by nominating the appellant as murderer of the deceased. This by itself is sufficient to throw doubt on the prosecution story about the involvement of the appellant. It has also come on the record that the said persons were the haries of Junaid Ahmed Soomro. The appellant alleged that he had enmity with Junaid Ahmed Soomro who was MPA at that time, under his influence the real culprits were let off and he was involved in the case. The said apprehension is not without any force because the complainant admitted that the appellant had land adjoining to the land of Junaid Ahmed Soomro. The appellant specifically enquired from the witnesses about the said enmity but they denied. However, the appellant mentioned such facts in his statement recorded under section 342, Cr.P.C. And examined two defence witnesses namely D.W. Nangar Khan and D.W. Eidan. They fully support the appellant and stated that the land of the appellant was adjacent to the land of Junaid Ahmed Soomro and in their presence Junaid Ahmed Soomro asked the appellant to sell the land but he refused. Junaid Ahmed Soomro was MPA at the time of incident and was an influential person. His haries were involved by the complainant in the murder case and therefore, the possibility of exercising his influence on the police in getting the nominated persons in the F.I.R. Released and involving his enemy in the case cannot be ruled out.
9. ' In this background of the case, we will examine the remaining evidence. The prosecution examined P .W .3 Lal Muhammad. His evidence reveals that on the night of incident, he was sleeping in the house when at about 2 a.m. Or 2-30 a.m. He heard gunshot reports coming from the house of deceased Allah Bux. He went there running and saw deceased Allah Bux lying dead with gunshot injuries on his person in the courtyard of his house. Several persons had assembled there.
10. He enquired about the culprits but nobody told him the names of culprits. This witness was declared hostile by the prosecutor. He cross-examined the witness but he could not get anything from him to support the prosecution case. Prosecution examined P.W.7 Bahram. His evidence reveals that the complainant and deceased were residing on the land of Junaid Ahmed Soomro. In the morning he was informed that deceased was killed by the appellant Kauro. He did not disclose the name of person who supplied him such information. As such his evidence is hearsay, which is inadmissible in evidence. The prosecution also examined P.W.8 Suhrab. The complainant alleged that he was sleeping in the house on the night of incident. He did not support the complainant as his evidence reveals that on the night of incident at about sun rise time he, complainant Mahboob were going to the land when P.W. Bahrain, his cousin met them on the way and informed them that the deceased Allah Bux was killed by the appellant. From his evidence, it is clear that complainant was not present in his house on the night of incident but P.W. Bahram informed him about the incident in the morning time. Thus, this witness Suhrab has also not supported the complainant but on the contrary be excluded his presence from the scene of incident. The prosecution examined P.W.10 Muhammad Nawaz. His evidence reveals that on the night of incident he and deceased were sleeping in their houses, which were surrounded by common hedge. At about 1 a.m. He woke up on gunshot reports and saw appellant Kauro standing near the cot of deceased Allah Bux armed with gun. On enquiries the appellant disclosed that he had killed the deceased because he was KARO with his wife. Then due to fear he kept quiet. P.W. Lal Muhammad who was residing near the house of appellant also asked the same question from the appellant to which he also told him to keep quiet. Then the appellant remained in the house till Fajr Azaan time and then he went to jungle. Thereafter, he saw the deceased lying dead with gunshot injury. This P.W. Gave a completely different story. He excluded the presence of complainant and other witnesses at the scene of incident but shown the presence of P.W. Lal Muhammad. P.W. Lal Muhammad has been examined as P.W.3 but he did not support the statement of Muhammad Nawaz. On the contrary his statement reveals that immediately after hearing the gunshot reports, he reached the place of incident and saw deceased lying dead and several persons present there. On his enquiries, nobody disclosed the names of culprits. Whereas the statement of P.W.10 shows that appellant remained in the house till Fajr prayers time. Thus, the evidence of P.W. Muhammad Nawaz cannot be safely relied upon.
11. From the scrutiny of oral evidence, I am of the considered view that the same is unbelievable and unreliable. It is full of exaggerations, contradictions, discrepancies and improvements; therefore, the same cannot be safely relied upon. It appears that none of the witnesses were present at the place and time of the incident but the incident was un-witnessed.
12. ' As regards the confession, the prosecution examined P.W.6 Muhammad Azeem, Mukhtiarkar and First Class Magistrate, Lakhi. His evidence reveals that after conducting the legal formalities, he recorded the confession of the appellant. In the cross-examination he admitted that he had no jurisdiction over the area of Kandhkot police station where the incident took place; that the said area came within the jurisdiction of Taluka Shikarpur, which was also Headquarter of the city. He further admitted that there were five or six First Class Magistrates posted in Taluka Shikarpur. In such a situation, it was the duty of the Magistrate to have enquired from the police as to why the accused was produced before him when he had no territorial jurisdiction over the said area instead of producing the accused before the Magistrate who had jurisdiction. It is pointed out that Sultankof police station is in between Shikarpur and Jaccobabad whereas Taluka Lakhi is situated in between Shikarpur and Sukkur. As such Taluka Shikarpur which is the Headquarter of the District comes in between Lakhi and Sultankot. If one goes to Lakhi then one has to pass from Shikarpur. If the police wanted to produce the accused before a Magistrate then in the first instance they should have produced the appellant before the Magistrate having jurisdiction in the area where the incident took place or if for some reason the Court of other Magistrate is situated nearer to the Magistrate having jurisdiction then they could have produced the appellant before the nearest Magistrate. In the Shikarpur city there were not only First Class Magistrates who were under Revenue authorities, at the relevant time but there were also Civil Judges and First Class Magistrates. As such a large number of Magistrates were available in Shikarpur but the police did not take the appellant to any of such Magistrates for recording his judicial` confession. This shows mala fides on the part of the police. If the police wanted to produce the appellant before the Magistrate at Lakhi who had no territorial jurisdiction then they should furnish some explanation for not producing the appellant firstly to the Magistrate having jurisdiction in the matter, secondly to the nearest Magistrate but no explanation Whatsoever has been furnished, which clearly shows that the police wanted to produce the appellant before a Magistrate who might oblige them in any manner. It is also not out of place to mention here that initially the haries of Junaid Ahmed Soomro were nominated in the F.I.R. But the police let them off and then the appellant was involved probably at the influence of Junaid Ahmed Soomro who had enmity with the appellant. As such he killed two birds with one stone; one by getting his own men released from the case and second by involving his opponent in the case to get rid of him.
13. ' The defence counsel while cross-examining the Magistrate had also cast doubt upon the conduct of the Magistrate as he enquired from the Magistrate that he was recording the confession of the accused persons of the entire District Shikarpur which were usually produced by different police stations. No doubt the Magistrate denied such suggestion but the conduct of the Magistrate itself shows that he willingly and without any hesitation or making objection on the recording of confession of an accused person who was involved in a case of police station, Sultankot which was about 25 or 30 kilometers away from his jurisdiction recorded the confession, also put some doubt on the conduct of the Magistrate. It is pointed out that a Judicial Officer should conduct himself in such a manner where nobody should raise a finger upon him; therefore, If the Magistrate is exercising jurisdiction in such type of matters and in the present manner then the people would caste doubt upon the fairness of the Magistrate. Thus, this ground itself is sufficient to discard the confession.
14. However, I have examined the confession which has been retracted by the appellant, it is well settled that a retracted confession can be made the basis of conviction without any corroboration if it is found to be voluntarily and true but as a rule of procedure and prudence it should be supported and corroborated on material particulars. In the circumstances mentioned above, a doubt has been created about the voluntariliness of the confession of the appellant. The conduct of the Magistrate and the police, in the peculiar circumstances of the case supports the above doubt. As such I am of the considered view that the confession is not voluntarily; therefore, the same cannot be relied upon. The learned A.A.-G. Has also not supported the confession.
15. ' There is no other evidence connecting the appellant with the commission of crime.
16. ' After considering the evidence available on the record, I am of the considered view that the case of prosecution is highly doubtful; therefore, the appellant is entitled to the benefit of doubt which was accordingly given to him while passing the short order dated 29-8-2006 by which I had allowed the appeal. These are the reasons of the said short order.