' SADIQ HUSSAIN BHATTI, J.---Accused Leemon, Rafique, Bashir and Ibrahim all by caste Rustamani stood their trial before Ist Additional Sessions Judge, Dadu, who by his judgment dated 28th June, 2010, convicted accused Leemon Rustamani to suffer imprisonment for life as Tazir, to pay compensation of Rs.100,000 to the heirs of deceased Budho under section 544-A, Cr.P.C., in default thereof to further undergo R.I. For x months. The accused were also extended benefit of section 382-B, Cr.P.C.
2. Accused Leemon being aggrieved and dissatisfied by the above judgment, filed this Criminal Jail Appeal.
3. Briefly the facts of prosecution case as disclosed in the F.I.R. Are as under:-- "That some time back there were exchange of hot words between Bhudo (son of complainant) and accused Bashir on damage of crop and that dispute was settled but the accused party had some grudge towards Budho. It is further alleged that on 25-3-2001 the complainant along with his sons Budho and Mumtaz came to Johi for their personal work and while returning they reached near chaff room of Haji Leghari on katcha path leading from Johi to the village of complainant at about 7-30 p.m., they saw five persons and identified them in the light of torch as Leemon, Moula Bakhsh, Bashir armed with dandas and accused Ibrahim and Rafique empty-handed and all accused started abusing and extending threats and saying so accused Leemon, Moula Bux and Bashir in prosecution of common object caused danda blow to Budho (son) on head, neck and face respectively with intention to commit his murder while remaining accused gave kicks and fists blows to Budho. P.W. Ilyas (brother-in-law) came on the spot in the meantime and witnessed the accused while committing crime and then accused persons escaped. Thereafter, complainant and P. Ws. Brought the injured Budho in Taluka Hospital, Johi where he succumbed to injuries."
4. The F.I.R. (Exh.12/A) of the above case was registered at P.S. Johi at the behest of complainant Wahid Bux on 25-3-2007. Police took up the investigation and on 4-4-2007 arrested accused Leemon and Rafique from their house and on the same day accused Leemon led the police party and mashirs and produced the danda from thatched roof of his house allegedly used in the above offence. Police recovered the same and on 5-4-2007 accused Leemon recorded his judicial confession before Civil Judge and Judicial Magistrate, Johi. After completing the investigation of above case, police submitted charge-sheet against accused Leemon and Rafique showing co- accused Bashir, Ibrahim and Moula Bux in Column No.2 of the charge-sheet, however they were joined vide order dated 28-4-2007 on application under section 17, Cr.P.C. And 190, Cr.P.C.
5. Accused Moula Bux could not be arrested by police hence he was declared proclaimed offender vide order dated 29-4-2007.
6. During the trial proceedings accused Lemon, Rafique, Bashir and Ibrahim were charge-sheeted and they pleaded not guilty and claimed to be tried.
7. The Prosecution in all examined following P.Ws. To prove its case:--
(i) P.W.1 Dr. Abdul Karim at Exh.11. He conducted postmortem examination and produced postmortem report at Exh.11/A.
(ii) P.W.2 Wahid Bux at Exh.12. Complainant produced F.I.R. At Exh.12/A.
(iii) P.W.3 Ilyas at Exh.13 (eye-witness).
(iv) P. W.4 Mumtaz at Exh.14 (eye-witness).
(v) P.W.5 ASI Gul Muhammad Qambrani at Exh.15, I.O. Of F.I.R., memo of dead body and inquest report.
(vi) P.W.6 Gulsher at Exh.16 (mashir of wardat).
(vii) P.W.7 SIP Bashir Ahmed at Exh:17 (Investigating Officer).
(viii)P.W.8 Muhammad Ibrahim at. Exh.
19. Judicial Magistrate recorded the judicial confessional statement of accused Leemon at Exh.19/A.
And statement under section 164, Cr.P.C. At Exh.19/B.
8. Thereafter, prosecution closed its side vide Exh.20. Statements under section 342, Cr.P.C. Were recorded of accused Leemon, Rafique, Bashir and Ibrahim vide Exhs.21 to 24 respectively. They denied the prosecution's allegation and pleaded their innocence. Although no specific question regarding the recording of judicial confession was framed against accused Leemon during his examination as it was a strong piece of evidence on which the prosecution case hinged, likewise no question regarding the witnessing of eye witness account of the alleged incident is put to accused.
9. Nevertheless accused Leemon while elaborating question No.6, answered as under:-- "Sir, I am innocent, on the day of confessional statement, the police early brought me before Magistrate Johi for statement but, I refused, then afterwards police brought my wife and mother at police station and pressurize upon me to Confess otherwise the honour of my mother and wife will be at stake, I pray for justice."
10. In fact the prosecution case hinges upon the following pieces of evidence:-
(i) Ocular testimony furnished by P.Ws. Wahid Bux, Ilyas and Mumtaz.
(ii) Recovery of blood-stained Danda from accused Leemon.
(iii) Judicial confession by accused Leemon.
(iv) Medical evidence.
(v) Motive.
11. Learned counsel for appellant/accused argued that prosecution case is nothing but a cock and bull story which has been engineered by complainant party and have falsely implicated the accused due to previous enmity. Alleged eye-witnesses named above are related inter se and are highly interested. He further argued that there are major contradictions between the ocular testimony and medical evidence. F.I.R. Lodged after long consultation. Mashir Gulsher is also closely related to the complainant party. The medical ,evidence in this case thoroughly belies the interested ocular evidence of all the three eyewitnesses of the incident. It is further alleged that prosecution has failed to produce even any independent witness to prove its case. It is contended that police did not collect the blood-stained from the place of incident and it is unbelievable that except deceased Budho no one received any injury at the hands of accused. F.I.R. Is delayed by four hours for which no explanation has been furnished by the prosecution and the same was lodged after consultation and manipulation. It is further contended that recovery of alleged Danda from accused Leemon was not witnessed by any independent witness hence it was an illegal.
Learned counsel contended that alleged confession of accused Leemon was not put to him during 342, Cr.P.C. Examinations hence, the confession was of no value even otherwise it was not a valid confession as provided by law. In support of his contentions, learned counsel has relied upon the following cases:--
(i) 1986 PCr.LJ 1153
(ii) 1999 M LD 2382.
12. On the other hand, learned D.P.-G. For the State has opposed the submissions advanced by learned counsel for the appellant. He stated that there is sufficient evidence against accused in shape of ocular, medical and judicial confession.
13. I have given anxious thought to the above submissions advanced at the Bar by learned counsel for the respective parties and perused the available record.
14. According to F.I.R. The names of five accused namely 1. Leemon,
2. Rafique,
3. Bashir,
4. Ibrahim and 5. Moula Bux were given by the complainant. According to him they were identified by complainant party on torch light. Accused Leemon, Moula Bux and Bashir were armed with Dandas whereas accused Ibrahim and Rafique were empty-handed. The accused armed with Dandas caused blows to deceased Budho on the head, face and neck and rest two accused caused kicks and fists blows to deceased Budho. The eye-witnesses have also corroborated the version of complainant.
15. On the other hand, Dr. Abdul Karim during his testimony stated that deceased had single lacerated wound with depressed fracture having crutching sound and an abrasion on right cheek.
16. Accused Leemon was arrested on 4-4-2007 from his house and led the police party and mashirs and voluntarily produced Danda from thatched roof of his house. The Danda was slightly stained with blood hence according to the contents of memo was sealed at the spot, but mashir and I.O. Bashir Ahmed did not say in their evidence that Danda was sealed even the Chemical Examiner's report (Exh.17/B) placed on record mention that no blood was seen on Danda and clothes of deceased. Hence alleged recovery is of no legal value.
17. The judicial confession of accused Leemon was recorded by the Judicial Magistrate and at the same time he had also recorded his statement under section 164, Cr.P.C. On Oath as a witness.
Judicial confession of accused is recorded under section 164, Cr.P.C. Read with section 364, Cr.P.C.
Whereas the statement of witness is also recorded under section 164, Cr.P.C. But in presence of accused to whom the notice is to be given so that he should be prepared to cross examine the witness. In this case, the Judicial Magistrate had adopted a novel way by ignoring the above provision of law. Accused thus has been given dual capacity.
18. 'As I have already mentioned that accused was not questioned about judicial confessional statement but he has answered the same that he was subjected to pressure by police as he had declined to give confessional statement, thereafter, when his wife and mother were brought he under coercion gave the statement and same is not voluntarily. On this point the reliance has been placed on the case of Waseemul Hague v. The State (1999 Cr.LJ 614), wherein it has been held that:-- "Confessional statement which is not put to accused in their statements under section 342, Cr. P.
C. Would lose its value and should not be taken as an implicating piece of evidence warranting conviction of accused."
19. Learned trial Court while convicting the appellant/accused Leemon mainly relied on ocular testimony and recovery of crime weapon which do not corroborate the judicial confession.
20. As discussed above the ocular evidence has not inspired confidence being interested and inter-related, dark night incident, identification on torch-light which was not produced. Further more medical evidence and ocular evidence are discrepant. It has rightly been pointed out by learned counsel for the appellant that the Tapedar who alone could have thrown light on the correct situation was not examined by the trial Court without giving a word of comment in the impugned judgment.
21. On this evidence police placed the name of accused Bashir, Ibrahim and Moula Bux in Column No. 2 of the charge sheet having no sufficient evidence against them. During the trial on the basis of above evidence, trial Court also acquitted accused Rafique, Bashir and Ibrahim.
22. Trial Court disbelieved the evidence of witnesses in respect of acquittal of above named accused but believed the same set of P.Ws. In respect of present appellant/accused.
23. Thus, there remains confessional statement which is also not corroborated by any other material evidence. Consequently, this Criminal Jail Appeal is allowed. Appellant/accused Leemon son of Laiq Rustmani is in jail, he shall be released forthwith if not required in any other case.