NASIR ASLAM ZAHID, J.----This is a jail appeal filed by appellant Qadir Bux son of Sardar Khan against his conviction by the learned Ex----Officio Additional Sessions Judge, Khairpur. By his judgment dated 2nd October, 1976 the learned Additional Sessions Judge found the appellant guilty of committing offence under sections 302, 326 and 324, P. P. C. For the commission of offence under section 302, P. P. C. The appellant has been sentenced to suffer imprisonment for life, under section 326, P. P. C. For 4 years' R. I. And a fine of Rs. 500, or in default of payment of fine R. I for one year and under section 324, P. P. C. R. I. For one year and a fine of Rs. 300 or in default to suffer R. I.
For 3 months. The sentences were ordered to run concurrently.
2. The prosecution story according to the F. I. R. Lodged by Manzoor Ahmed son of Allah Jawaya on 13February, 1972 at 13-45 hours at Police Station. Mirwah, is to the following effect. The complai-- nant Manzoor runs a Kiryana shop in partnership with Hasan and Abdul Sattar at Mehrabpur although Manzoor has his house in village Yar Mohammad, where he kept his family and he used to come to his house from Mehrabpur after every 5/6 days. Apart from his family, the parents and his step-brother Niaz Hussain also resided with the complai--nant. According to Manzoor, his sister Mst. Naziran was married to one Sharif Pathan in District Sahiwal. Mst. Naziran had one daughter by the name of Seema, aged 14/15 years, one son Khadim Hussain (deceased) aged about 12 years, other son Ramzan Hussain aged about 4 years and another son of about 4 months from her husband Sharif. Sharif used to beat Mst. Naziran and accordingly for the last 6 months she with her children was residing with Manzoor. According to the F. I. R. 3 months back Mst. Naziran performed the Nikah of her daughter Seema with Niaz Hussain, step-brother of the complainant, but the marriage was not solemnised, Manzoor used to see his sister Mst. Naziran with her daughter Seemath going to the canal for washing clothes. Manzoor had also noted that Qadir Dad Awan the appellant, although his name is Qadir Bux) used to stand near these two women at the canal. This allegation has been made by the complainant apparently to indicate that the appellant had bad intentions as regards these women. About a month prior to the filing of the F. I. R. Mst. Naziran told the complainant that Qadroo Awan (the appellant) had sent a message to her through Yar Mohammad that in case she married her daughter Seema to the appellant, he would take Mst.
Naziran alongwith her 3 sons to Karachi and will bear all the expenses. On this, the complainant got very angry and told her that either she should go back to her husband Sharif or she should marry some other person and stay with him. Mst. Naziran became silent but on account of this she refused to do any household work in spite of the request of their mother Mst. Bagho. The complainant further stated that about 5/6 days back he had come to his house from Mehrabpur when at about noon time his partners Hasan and Sattar came to him and they were sitting with the complainant in his house. On the same day complainant's haris Awan Ajir and Amin, who also belong to Sahiwal, were shifting to Sahiwal. The complainant told Mst. Naziran that she should go with them to her husband at Sahiwal. However, she refused saying that she would not go to her husband but she would support herself. That night the complainant remained in his house and the next morning he went to his shop at Mehrabpur. Two days before the day of making of the F. I. R. On 11Febuary, 1972 at 8-30 a.m. Mst. Bagho, mother of the complainant, and Niaz Hussain came to the complainant's shop at Mehrabpur and informed him that Mst. Naziran along with her daughter Seema and her sons had gone out somewhere the previous night at about 4 a.m. On this the complai--nant accompanied his mother and the stepbrother and came to his house. The complainant sent Niaz Hussain and his cousin Qadir Bux son of Sher Khan (not the appellant) in the surroundings and started searching for Mst. Naziran but there was no trace of her, but the complainant did not lodge any report with the Police. On the day of the filing of the F. I. R. At about 11-30 a.m. One Hidayatullah Depar came to the house of the complainant and informed him that Allan had told Ali Nawaz who informed Hidayatullah that Mst. Naziran, her daughter Seema and sons Khadim Hussain, Raza Hussain and one young boy were lying injured towards north of the village Burdis and that Khadim Hussain was dead as a result of receiving hatchet blows. On receiving this information, the complainant went directly to Setharja Police Outpost, but the Subedar was not present and had gone out for investigation. The complainant met Ali Nawaz Khan, .Who told him that Allan. Burdi was saying that he had enquired from his sister injured Mst. Naziran as to how she received injuries who told Allan Burdi that Qadroo bad injured them. Thereafter the complainant went to Police Station Mirwah and lodged the F. I. R.
3. On the same day at 1600 hours A. S. I. Husain Bux alongwith two mashirs Mohammad Siddiq and Haji Allah Nawaz visited the place of incident. The mashirnama was signed by the mashirs. The appellant was arrested 6 days later on 19th February, 1972 by Abdul Rashid Qureshi, S H. O. Police Station, Mirwah in the presence of two mashirs, namely Zawar Imdad Hussain and Haji Ali Nawaz at 10-30 a.m. According to the mashirnama, the clothes worn by the appellant at the time of his arrest after 6 days of the incident when examined were found to be blood-stained. The Police got these clothes removed and took the same into possession. The clothes included one yellow shirt having two marks of blood stains and one trouser also having blood marks. The clothes were sealed in the presence of mashirs. A third mashirnama was prepared on 3April, 1972 at 3 p.m. In the presence of mashirs Nazir Ahmed and Ali Mohammad. According to this mashirnama in the presence of III Class Magistrate, Mirwah, Mst. Naziran identified the 'Khes' (sheet of cloth) of the appellant and she also identified the yellow colour loin-cloth and also a silken shirt of purple colour with flower prints.
4. The blood-stained earth recovered from the place of incident, the clothes of the appellant and the blood-stained hatchet recovered were sent to the Chemical Examiner for report. From the letter dated 4th September, 1972 of the Chemical Examiner addressed to the S. P., Khairpur it appearsth rd that the sealed parcel containing the above items were sent under cover of letter dated 6March, 1972 of the S. P., Khairpur to the Chemical Examiner which were received by him on 22nd April, 1972.
The report was given on 4September, 1972 by the Chemical Examiner and this report, which was sent by him on 4September, 1972, to the S. P., Khairpur was forwarded by S. P., Khairpur on 14th October, 1972 to the S. H. O., Mirwah. According to the report of the Chemical 1:xaminer, all the articles sent to him were stained with human blood.
5. There are two eye-witnesses examined on behalf of the prosecu--tion. Mst. Naziran's statement was recorded under section 164, Cr. P. C. And then she gave evidence at the state of committal proceed--ings but when the case came up for trial before the Sessions Court, Mst. Naziran was not examined, the ground being that in spite of, efforts she could not be traced and in the circumstances her statement recorded at the stage of committal proceedings was brought on record under section 33 of the Evidence Act. Apart from this ocular testimony there is the statement of her daughter Seema alias Shamim Akhtar recorded under section 164, Cr. P. C. She also gave evidence at the committal proceedings but she was also not examined at the trial for the same reason as given for Mst. Naziran. As discussed later in this judgment there are material discrepancies in the statements of Mst. Seema and the statements of her mother Mst. Naziran.
Apart from this testimony, the prosecution has also relied upon the retracted judicial confession of the appellant made on 19February, 1979 before the Settlement Commis--sioner and F. C. M., Mirwah, who has also been examined. There is also the medical evidence of Dr. Mushtaq Ahmed and his post-mortem report.
6. Along with the appellant co-accused Shafi Mohammad and Niaz were also tried but by the judgment dated 2nd October, 1976 of the learned Additional Sessions Judge, the accused Niaz and Shafi Mohammad were found not guilty of the offences and only the appellant before us was convicted for offences under sections 302, 326 and 324, P. P. C.
7. We have not been impressed by the ocular testimony of Mst. Naziran, on whose evidence the entire case of the prosecution against the appellant depends. It is surprising that Mst. Naziran was not examined as a witness in the trial Court. The reason given that Mst. Naziran could not be traced in spite of efforts made, has not impressed us. The deceased Khadim Hussain was the youngest son of Mst. Naziran and she had given her statement at the stage of committal proceedings' and it is hard to believe that a mother, whose son has been murdered in cold blood, as alleged by her, and who has given her statement willingly at the stage of committal proceedings, has not come forward to give evidence at the trial. Even if her testimony is not entirely rejected, it is unsafe to rest the conviction of the appellant on her testimony. If as stated earlier, her evidence is not entirely rejected, at best the prosecution can consider her testimony as a weak piece of evidence and without corroboration through independent and unimpeachable evidence, the conviction of the appellant cannot be sustained.
8. We now propose to deal with the evidence/statements of the two eye-witnesses to the incident.
Mst. Naziran's statement was recorded on 21st February, 1972 under section 164, Cr. P. C. And we consider it necessary to reproduce her entire said statement which is as follows:- "Qadoo Awan told me that he draws salary of Rs. 400 and he has got 4 acres of land in Moro. He asked me to accompany him, as he will take me to my uncle at Moro. It happened about 10/11 days back. I told him that I will not accompany him. Again he pressed me to accompany him, saying that he will get my sons and daughter married. I refused to accompany him. Again he asked me that he will marry me. He again told me that I should accompany him and he will get me seated in the train for going to my husband. My husband is residing in Arif Poora in Punjab. I was residing with my brother Manzoor Ahmed near Deparja since last six months. Shafi, Niazoo and Yaroo had brought me to the house of Qadoo: At about Sahri time I took my children from the house of Qadoo and was going to Departka Railway Station for boarding Lundo Train. Shafi and Niazoo told Qadooth th th th in case she is not going with you, you should follow her and kill her in the jungle. Qadoo advised me not to go to Deparja along straightaway, because my relatives may not cone and they may take away me forcibly. He asked me to accompany him to Setharja from where he will get me seated in the train. He told me that a road leads to Setharja via Suigas and therefore they should go to Setharja via Suigas. Upon this I told him, that he was committing fraud with me and therefore I will not accompany him along Suigas Road. I took my children and went back and told him that I will not accompany him. Upon this he took the hatchet and attacked me to kill. I touched his feet and requested him that I am prepared to accompany him and that he should not kill us. My son Khadim Hussain told him that who he was to kill his (Khadim Hussain's) mother, and he caught the legs of Qadoo, my daughter also quarrelled with Qadoo. Thereafter turban and sheet of the cloth of Qadoo fell down. My son left Qadoo and told me that I should wait there and he is going to bring other persons for getting Qadoo captured. Upon this my son started going towards Deparja Station.
Upon this Qadoo gave him hatchet blow on his nape. My son fell down. Thereafter be gave a hatchet blow to me and to my daughter and we fell down. Thereafter we do not know, where Qadoo went away. One Baloch Burdi passed by our side, I called him and told him to inform my Allah' Jawaryo, thereafter my brother arrived there. I narrated him entire facts. He went to lodge report with the Police. The Police sent me, my daughter and my son to the hospital at Setharja."
9. Mst. Naziran, whose statement was then recorded at the committal stage on 26June, 1972 gave her age as 45 years and stated that she was married to Sharif 10 years back and had 4 sons and one daughter Seema. Sons' names were given by her as Khadim, Nazar Hussain, Mohammad 'Hussain and Fida Hussain. She then stated about her coming to village Deparja and staying with her brother Manzoor, the complainant. The rest of her examination-in-chief may be reproduced here:- "About 5/6 months back at about dawn time, I left my house along with my 4 sons and one daughter Seema and started for railway station for going to Punjab. As my mother and my father wanted to perform Nikah of my daughter with Niaz Mohammad, when I left my house alongwith my four sons and one daughter. On the way accused Kadir Bux met us. And after the exchange of news, he took us to his house on the pretext that he will give us the fare of Punjab. I was in the house of accused Kadir Bux for days, but he had bad eye on me. Then after 2 days, at Dawn time again I left the house of accused Kadu alongwith my four sons and one daughter for railway station. Accused Kadu also followed us. No other person was following us except accused Kadu.
When we reached in the jungle again accused Kadu forced me to go with him, but on my refusal accused Kadu gave me hatchet blow and to my daughter. I again requested him that he Should not give us the hatchet injuries. Then again he gave the hatchet injuries to my son Khadim Hussain.
On my cries P. W. Allan also came. I requested him that accused Kadu had given us hatchet injuries, he should help us. Then P. W. Allan informed my relative and complainant Manzoor. I then narrated him the above facts. Theri Police came and they referred me to Setharja Hospital for treatment. Then I was examined by the Police. My 164, Cr. P. C. Statement was recorded before Mukhtiarkar, Mirwah. I produce it which is same and bears my R. T. I. Accused Kadu present in Court is same."
10. In her cross-examination Mst. Naziran stated that before she had left the house she had a quarrel with her parents and at the time she left with her children all other family members were asleep and she left without knowledge of her parents. She further stated that when the accused gave her hatchet blows she had lost her, senses. She also stated that her father Allah Jiwaya had not come to the place of incident and Manzoor complainant also came at Setharja Dispensary. She further confessed that she had not known Kadir Bux accused prior to the incident. In her cross- examination to the Advocate for the two acquitted accused. Mst. Naziran testified that Shafi and Niaz, who were her sister's sons, were innocent and had been falsely implicated and that herth parents and brother Manzoor were on inimical terms with Shafi and Niaz over land. She further stated that her statement under section 164, Cr. P. C. Was not read over to her and she had not given the names of Niaz and Shafi as accused.
11. From a comparison of her above two statements two completely different stories appear. There are so many material contradictions bet--ween the two statements that it is not even necessary to point them out. Further Mst. Naziran was not examined as a witness before the trial Court and reasons for this did not appeal to us, as observed earlier. Testimony of complainant Manzoor also contradicts in material respects the statements given by Mst. Naziran in the committal proceedings. Manzoor fully involves acquitted accused Niaz and Shafi alleging that they had taken Mst. Naziran to Qadir Bux accused's house three days before the incident. Then Manzoor states that he had gone to the place of incident and brought the ladies with the Police to the Setharja Dispensary, whereas Mst. Naziran has stated that Manzoor only came to see them at Setharja Dispensary.
12. The only other eye-witness is Mst. Seema daughter of Mst. Naziran whose statement under section 164, Cr. P. C. Was recorded on 28February, 1972 and her statement during the committal proceedings was recorded on 26June, 1972. She was declared a hostile witness and then cross- examined by the A. P. P. Mst. Seema was also not examined as a witness at the trial before the Sessions Court as her whereabouts, like that of Mst. Naziran, were also not known. Reasons for her not being examined have also not impressed us and in view of the great disparity in her two statements under section 164, Cr. P. C. And in the committal proceedings, her non-examination has prejudiced the accused and the benefit must go to the accused for not examining these two ladies before the trial Court.
13. Being the only other eye-witness, we consider it proper to reproduce the two statements of Mst.
Seema alias Shamim Akhtar:- Statement of Mst. Seema alias Shamim Akhtar recorded under sec--tion 164, Cr. P. C. On 28th February, 1972.
"I was residing with my mother in the house of grandfather in Deparja Town. Qadroo, Niazoo and Shafi took me, my mother and my three brothers to the house of Qadroo. It happened about 10/11 days back. We stayed in the house of Qadroo for two days. Qadroo told my mother, whether she will accompany them or not. My mother told Qadroo that she will not accompany him. Qadroo told my mother that he has got land lit Moro and he draws salary of Rs. 400. He asked her that she should accompany him, so that he may take her to the house of my uncle. My mother told him that she will not accompany him. Upon this Qadroo told her that she should not accompany him to Moro, but he is going to take her to the railway station for getting her seated in the train for Pakpattan. At dawn time, I, my mother and my three brothers accompanied Qadroo for going to Deparja Station from the house of Qadroo. Thereafter Qadroo took us to jungle. Yaroo, Shafi and Niazoo were sitting ahead at the branch. Thereafter Qadroo gave a hatchet blow to my mother as a result of which she fell down. My brother Khatlim Hussain started running to wards Deparja Railway Station. Upon this Qadroo followed him and gave him a hatchet blow, as a result of which he fell down. Yaroo tried to kidnap me. But I slipped away. Upon this Yaroo gave me hatchet blows, as a result of which I fell down. Shafi had asked Yaroo for my kidnapping. Thereafter, we were lying there. In the morning one Baluch arrived there we called him, he- came to us. MY mother told him to inform her father about this incident.
Upon this my maternal uncle and grandmother and others arrived there. They took me to Setharja Hospital."
Statement of Mst. Seema recorded in the commital proceedings on 26th June, 1971th th `About 5; 6 months back, I along with my mother and my 4 brothers had come to stay with my grandfather at Daparja, again says that we were residing with our uncle Allah Yar. I know accused Kadu, Niazo and Shafi. About 5 months back, quarrel arose between my mother and my grandfather. Then early in the morning, my mother was taking away me, my four brothers to Punjab. 'We left the house at dawn time. On the way accused Kadu met us after the exchange of news, he took away to his house. Then accused put bad eyes on my mother. Then again at dawn time we left for Deparja Station. Kadu also followed us and no body else was following. On the way again accused Kadu requested my mother to go with him but on the refusal of my mother accused Kadu gave her hatchet blows, and he gave hatchet blows to me and then to my brother Khadim Hussain. Then accused ran away. Then one Baloch by caste Allan came there and my mother narrated him the above story. Then we went to our relative's home. Then we were taken to Setharja Dispensary, Police recorded my statement. My brother Khadim Hussain died there and then after receiving the hatchet injuries. My 164, Cr. P. C. Statement was written and my R. T. I. Was put it was not given by me.
At this stage learned A. P. P. Declared the witness hostile and requests for cross-examination.
X to App.: Accused Kadu present in Court is same. It is not a fact that I have given this 164, Cr. P. C. Statement as recorded. I have not stated in my 164, Cr. P. C. Statement that accused Kadu, Niazo and Shafi had brought my mother to the house of accused Kadu. I have not stated in my 164 statement that accused Shafi and Niazo were sitting on the eanal, 1 have not stated in my 164, Cr. P. C. Statement that Yaroo abducted me and caused me hatchet injuries on my refusal. I have also not stated that Shafi had asked Yaroo to abduct me. Accused Shafi and Niazo are my uncles. It is a fact that we are against the complainant Manzoor Ahmed and his father Allah Jayo. We are in the favour of accused Niazo and Shafi, as they are my uncles. It is fact that accused Niazo and Shafi had requested us that we should not depose against them.
X to Mr. Zawar Hussain for accused Kadu: It is not a fact that my mother, had come after .The quarrel with my father, it is not a fact that my father vas maltreating my mother, I do not know accused Kadu previously. We were not on visiting terms with us. When accused Kadu gave us hatchet injuries, we all were near each other. When I received hatchet injuries, I lost my senses. It is a fact that I regained senses in hospital. I cannot say whether my Mama Mansoor and Nana Allah Jayo had come at the vardat. It is a fact that I was not read over my 164, Cr. P. C. Statement.
X to Mr. Hadi Bux for other accused It is a fact that complainant Manzoor Ahmed and father of the complainant are on inimical terms with accused Shafi and Niazo over land. These accused did not participate in the crimes nor they were present at the time of incident and they have been falsely implicated by the complainant in order to take the revenge. 164, Cr. P. C. Statement was written by Manzoor."
14. There also appears to be no motive for the killing of Khadim Hussain and for causing injuries to the two ladies by the accused. At one place Mst. Naziran states that on the mere asking by the acquitted accused Niaz, Shafi, appellant Qadir Bux started hitting with the hatchet which resulted in the death of Khadim Hussain and injuries to the two women. It is not clear why the accused should have obeyed Niaz and Shafi to the extent of committing such heinous crimes. The other and completely different reason given by Mst. Naziran was that the accused had bad eye on her. This statement as giving motive, coming from Mst. Naziran does not appear to be true inasmuch as immediately on meeting the accused for the first time she accompanied him to his house and stayed there for two days. The prosecution has failed to prove positively any motive for the crime as far as the appellant before us is concerned.
15. As regards the recoveries, it may be observed that the crime is alleged to have been committed on 13th February, 1972 and the accused is arrested on 19th February, 1972 and even after the passage of 6 days, the accused is found to be wearing blood-stained clothes consisting of one yellow coloured shirt and also trousers of the same colour both with marks of blood as per mashirnama dated 19th February, 1972. It is difficult to believe that the accused would be wearing clothes with visible blood marks for six days. Then on 3rd April, 1972 (Mashirnama Exh. 8) an identification test by Mst. Naziran of accused's clothes takes place. From 10-12 other clothes she picks out the clothes alleged to be worn by the accused on the day of the incident and these turn out to be a 'yellow coloured loin-cloth of the accused (not trousers as per mashirnama made on 19th February 1972 at the time of arrest) and a purple coloured silken shirt with flower prints 1972 a yellow coloured shirt as per mashirnama dated 19th February, In the Chemical a Examiner's report dated 4th September, 1972 these very clothes again mysteriously change their colour and shape and become shalwar and shirt of light brown colour. These obvious discrepancies and the unexplained delay in the despatch by the Police and receipt by the Chemical Examiner of these clothes and in the submission of the report by the Chemical Analyser, make these recoveries valueless. As regards the blood-stained hatchet recovered after six days of the incident, it is not clear why the hatchet was hidden very near the scene of the crime which could easily have been thrown in the canal. If it was recovered from bushes at a distance of only 34 paces froth the place where the dead body was lying, why was it not recovered in the search for the crime weapon by the Police. In any case, the inordinate delay that has taken place in the despatch by Police and receipt by the Chemical Examiner of this hatchet and in the submission of the report by the Chemical Examiner, in addition to the above reasons, makes this recovery also of no value.
Reliance is placed on 1969 SCMR 714, 1976 P Cr. L J 419, 1972 P Cr. L J 820, 1968 P Cr. L J 538 and 1978 P Cr. L J 57.
16. The only other pieces of evidence requiring consideration are the retracted judicial confession and the extra-judicial confession of the accused. In his statement before the committal Magistrate as well as at the trial, the appellant denied that he had made the confession voluntarily. The judicial confession was made by the accused on 19th February; 1972 and it is to the following effect:- ---Niazoo, Shafi Pathan and their women had dispute among themselves. The women told Shafi that he should take her to her previous husband. Shafi told me that they have to snatch the daughter from this weapon. He therefore asked me to keep this woman with me for one or two days. I told Shafi and Niazoo that I am residing in another house, and that they should take away the woman. Shafi and Niazoo told me to keep the woman for one night and on the next day, they will take her away. I kept the woman with me for one night. It was Sunday night (Saturday evening).
On the night at about 3-00 a. m. Shafi and Niazoo took away the woman. They also told me to accompany them and I accompanied them. We covered a distance of about up to police station (the distance between my office and the police station is. About. 1-- furlongs). Upon this Shafi and Niazoo asked me to, kill the woman. Shafi and Niazoo ran away. I gave hatchet blow to the woman, who fell down. The boy received blow on his head. I again gave a hatchet blow to the woman and gave another blow to her daughter. They started raising cries, I threw away the hatchet and ran away. I have not met with Shafi and Niazoo again I have been arrested by the Police "
The facts as given in the confession are in direct conflict with the story given by Mst. Naziran and Mst. Seema in their statements before the committal Magistrate. Shaft and Niazoo, are fully involved in the confession whereas they have been acquitted by the trial Court on the ground that no case was made out against them. Further, as the other material evidence has been rejected including the ocular evidence and evidence as to recoveries and motive, conviction cannot be sustained on the basis of a retracted judicial confession.
17. The extra-judicial confession made by, the appellant to P. W. Imdad Hussain gives a completely different story which materially contradicts the version given .In the judicial confession of the accused as well as the other versions given by Mst. Naziran and Mst. Seema. In this extra-judicial confession supposed to have been made 5/6 days after the crime, accused does not involve or mentions about Niaz or Shaft at all. He refers to two women and two boys (whereas elsewhere reference is to 4 sons of Mst. Naziran). Then the accused tells P. W. Imdad Hussain that he was taking the two women to Punjab to dispose of the women, a completely new angle which does not find mention in other pieces of evidence. Then he says that he had a fight with the two women and only one woman Seema was injured whereas prosecution evidence shows that both the women were injured. These and other contradictions with the judicial confession as well as the prosecution story make this extra-judicial confession of little value. Further, the extra-judicial confession cannot corroborate a retracted judicial confession specially in the circumstances of this case as version in the two confessions differ in almost all material respects.
18. As a result, we hold that the prosecution has not been able to make out any case beyond reasonable doubt against the appellant before us. The judgment dated 2nd October, 1976 of the Ex-Officio Additional Sessions Judge, Khairpur is set aside and this jail appeal is accepted and the accused acquitted of all charges. The appellant isle ordered to be released forthwith if not required in any other case.