SHAHAB SARKI, J.---Through this appeal the judgment dated 03.10.2009 has been impugned whereby the learned Additional Sessions Judge (Hudood), Sukkur in Sessions Case No, 250 of 2004 has convicted appellant Muhammad Yousif and Shahan Khan, both sons of Allah Jurio Bhabhio, under section 302, P.P.C. And sentenced them to suffer R.I for life as Tazir and benefit of section 382- B, Cr.P.C. Was also extended to them.
2. Brief facts of the prosecution case as per the FIR lodged by complainant Sahib Dino Bhabhio are that he is a landlord and his son Ali Gul has matrimonial dispute with Mumtaz, Bachal, Shahan, Muhammad Yousif, Nawab and Khuda Bux and as per the complainant they used to threaten him that they would murder Ali Gul. It is further stated that a few days prior to the alleged incident, in presence of witnesses Bahawal and Bakht, Nawab and Khuda Bux had threatened Ali Gul as apparently they were not reconciling their dispute. It is further stated that on the day of incident the complainant along with two witnesses was going from his village and his son Ali Gul was sitting at the Hotel when he saw Mumtaz, Bachal, Shahan and Muhammad Yousif having hatchets and they were causing hatchet blows to his son Ali Gul and were saying that they had been instigated by Nawab and Khuda Bux. Due to fear the complainant party remained silent while four accused persons gave blows to his son and killed him and thereafter they went away. Leaving the PWs over the dead-body of his son, the complainant lodged the FIR against Mumtaz, Bachal, Shahan and Muhammad Yousif, who had caused hatchet blows to his son in furtherance of their common intention upon instigation of Nawab and Khuda Bux.
3. During investigation four nominated accused persons were let off by the police and the present appellants were charged for the offence. The present appellants were allegedly arrested on 26.10.2004 and after two days of their arrest, confessional statements under section 164, Cr.P.C.
Were recorded before the Ist Judicial Magistrate Rohri on 28.10.2004.
4. The charge against the appellants under section 302/34, P.P.C. Was framed on 10.10.2007 to which, they pleaded not guilty and claimed trial.
5. In support of its case, the prosecution examined a total of 05 prosecution witnesses. PW1 was Mir Ghulam Ashgar who at the relevant time was posted as Senior Medical Officer at Rural Health Centre District Sukkur and he conducted the postmortem of the deceased. PW2 was Judicial Magistrate who recorded the confessional statements of the accused and PW3 was one Shamsuddin who was the I.O. Of the case and who subsequently challaned the accused to face the trial. PWs.4 and 5 were Barkatullah and Gulshan Ali who are private persons and caste-fellows of the complainant who were not the eyewitnesses of, the alleged incident but they deposed about the facts of the case. PW6 was Shakeel Ahmed who was working as Tapedar and he prepared the sketch of wardhat.
6. Learned counsel for the appellants has submitted that as many as 16 witnesses have been shown in the challan whereas only 06 were examined, and even they have not implicated the present appellants. He has further submitted that the complainant of the case namely Sahib Dino has expired but he had moved an Application under section 193, Cr.P.C. Before the trial Court wherein he had averred that the let off 04 accused, who were duly nominated by him in the FIR, are the actual culprits but the said application was ultimately disposed of and 04 let off persons have never been included in the trial. He has further submitted that there are material contradictions in the depositions of the PWs and all such contradictions are to be construed in favour of the appellants and the trial Court has erred in ignoring these material contradictions. He has further submitted that the alleged confessions were obtained from the appellants, who are real brothers, after two days of police torture and the same are not free from duress and undue influence. He has further submitted that the alleged recovery of hatchets has been shown by the police but the same have not been produced before the trial Court. He has also relied upon a number of judgments reported as PLD 1987 Quetta 96 (Syed Azeem Shah v. The State), 2003 PCr.LJ 1608 (Gangoram v. State) and 1992 SCMR 196 (Dania! Boyd (Muslim name Saifullah) and others v. The State) and has prayed for acquittal of the appellants.
7. Learned APG appearing for the State has submitted that the Application under section 193, Cr.P.C.
Moved by the complainant was dismissed on account of non-prosecution as the complainant had expired. He has also placed reliance upon the evidence of PW1 Dr. Mir Ghulam Asghar, who stated that there were 12 incised wounds on the body of deceased, which were caused by the hatchets and it is not disputed. He has further argued that no enmity with the police has been alleged and the confessions of the appellants are voluntary and without any coercion and are supported by the contents of the FIR and the statements of the PWs. He has finally argued that all the pieces of circumstantial evidence provide a 'strong chain through which it can safely be concluded that the present appellants are guilty of the offence with which they are charged. He has placed his reliance upon 1995 SCMR 1793 (Zakir Khan and others v. The State), 2009 SCMR 1260 (Muhammad Tariq alias Tara and another v. The State), 2008 SCMR 1623 (Samiullah and another v. Jamil Ahmed and another) and 2007 SCMR 641 (Ashfaq Ahmed v. The State) on the point of witnesses and on the point of circumstantial evidence supported with the confessional statements he has placed his reliance upon 2006 SCMR 366 (Suleman v. The State) and 2007 SCMR 782 (Ghulam Qadir and others v. The State).
8. Learned counsel appearing on behalf of the legal heirs of the complainant has adopted the arguments of the learned APG.
9. 1 have heard the arguments of the learned counsel, perused the record and gone through the relevant case law. I have examined the depositions of all the six prosecution witnesses and it is apparent that none of them has made any allegation against the present appellants with regard to the commission of the instant crime. The only piece of evidence to connect the appellants with the crime is the alleged confessional statements recorded by them. Superior Courts of this country have repeatedly held that if a conviction is to be made solely on the basis of confessional statement, then the Court has to be satisfied itself that the confession is purely voluntary, made promptly, and fulfills the necessary prerequisites and principles, as laid down in the various judgments. Some of the principles laid down are that before recording the confessional statement accused is to be duly informed and explained A that whether or not he makes the confession his custody shall not be .Handed over to the police which has brought him there. In the instant case, the alleged confessional statements have been retracted by the appellants and in cases of retracted confession it has further been held by the apex Court that corroboration in material particulars is essential and conviction cannot be based solely on a retracted confession. In the instant case, as noted above, no evidence has come against the appellants. Even otherwise there are contradictions between ocular and medical evidence with regard to the alleged time of death, and the time mentioned in the, postmortem report.
10. The upshot of the above discussion is that there is no corroboration of the material particulars with the alleged retracted confessional statements. It is the duty of the prosecution to establish its case beyond any doubt. Not only the confessions appear to be involuntary but the same are also not corroborated by any single piece of evidence to connect the appellants with the crime.
11. In the aforesaid circumstances the prosecution has miserably failed to establish its case against the appellants, and as a consequence thereof this appeal is allowed, the conviction and sentence awarded to the appellants under the impugned judgment dated 03.10.2009 is set aside and the appellants are acquitted of the charge. They shall be released forthwith if not required in any other criminal case.