ABDUL MAALIK GADDI, J. The captioned Cr. Acq. Appeal has been preferred against the acquittal judgment dated 09.12.2004, passed in Sessions Case No. 06 of 2004, FIR No. 02 of 2004 registered under Section 302, 201 and 34, P.P.C. of police station Diplo district Tharparkar by the learned Additional District and Sessions Judge, Tharparkar at Mithi, whereby the private respondents have been acquitted.
2. The facts of the prosecution case as per FIR lodged by one Allah Warrayo son of Ishaque, by caste Bajeer, with Police Station Diplo, on 07.02.2004, at 0140 hours are that, he has four sons and one daughter. His elder son Ishaque was married with Mst. Ladan daughter of Lakho Bajeer. It is further the case of the prosecution that, some time back complainant suspected that Mst. Ladan is on illicit terms with accused Ghulam Muhammad son of Karimdino Bajeer, hence he made complaint to the elders of the said Ghulam Muhammad to prevent him from committing such an act. Complainant thereafter along with his family members and Ishaque shifted to an other house but Ghulam Muhammad did not mend his ways and continued on illicit terms with Mst. Ladan and she also continued illicit terms with Ghulam Muhammad. On 24.1.2004, complainant party after taking night-meals including son of complainant Ishaque and his wife Mst.
Ladan went to sleep in a but made of straw/chounra, whereas complainant and other inmates of the house went to sleep in separate room of the house. On the following morning, all the family members woke up, excepting Ishaque. Complainant went and gave call to Ishaque but no reply was received by him, thereafter he entered into the hut/chounra and found Ishaque lying dead. Complainant inquired from Mst. Ladan about the death of Ishaque and she showed ignorance. Complainant started raising cries, which attracted Faiz Muhammad son of Lakhadino, Hassan son of Pinial and they all saw dead body of Ishaque having red marks of violence on both sides of his neck/gullet/trachea and chest. It is further case of the prosecution that, so many villagers gathered at the place of incident including Rahimdino son of Jalal Bajeer maternal uncle of accused Ghulam Muhammad and he asked complainant party that, Ishaque had died on the dictates of Almighty Allah and they should burry him quickly. The complainant and co-villagers being innocent persons remained silent and buried the dead A body. Complainant suspected that his daughter in law Mst. Ladan sharing common intention with her paramour Ghulam Muhammad had added sleeping pills in the night meals and catered the same to family members, who all went to sleep and thereafter they committed murder of Ishaque by way of throttling.
3. It appears from the record that the trial court framed the charge against the accused/respondents at Ex.3 under the aforementioned sections on 27.4.2004 to which accused/respondents pleaded not guilty and claimed to be tried vide their pleas available on record at Ex.4 to 6 respectively.
4. At trial prosecution examined the following witnesses:- P.W-1 at Ex.7 Allah Warrayo complainant, who placed on record FIR as Ex.7-A at Ex.8, Faiz Muhammad who also placed on record 164 Cr.P.C. statement as Ex.8-A, P.W-3 at Ex.9, Hassan, he also placed on record 164 Cr.P.C. statement as Ex.9-A, P.W-4 at Ex.10 Mohammad Hussain, P.W-5 at Ex.11 Ali Bux, P.W-6 at Ex. 12 Abdul Sattar. PM-7 at Ex.13, Dr. Anwar Memon who placed on record certificate issued by medical board as Ex.13-B, P.W-8 at Ex.14 Dr. Muhammad Akbar, P.W-9 at Ex.15 Jan Muhammad, who placed on record mashirnama of place of incident as Ex.15-A, mashirnama of graveyard as Ex.15-B, mashirnama of arrest of accused Mst. Ladan as Ex.15-C, and mashirnama of clothes of deceased as Ex.15-D. Learned D.D.A. gave up P.Ws Dr. Inayatullah Shaikh and Dr. Shankar Lal, through statement dated 25.9.2004 at Ex.16. P. W-10 at Ex.17 Mr. Mushtaque Ahmed Ansari, Civil Judge and Judicial Magistrate-II, Mithi, who recorded 164, Cr.P.C. statements of P.Ws Faiz Muhammad and Hassan. P. W-11 at Ex.18 Tulijaram, who placed on record mashirnama of arrest of accused Ghulam Muhammad as Ex.18-A. P.W-12 at Ex.19 Gul Muhammad who placed on record inquest report of dead body of deceased Ishaque as Ex.19-A, P.W-13 at Ex.20 Mr. Abdul Sattar Abbas Memon, Civil Judge and Judicial Magistrate-I, Mithi, who recorded judicial confession of lady accused Mst. Ladan, who produced same as Ex.20-A. P.W-14 at Ex.21 Abdul Razaque Tapedar of the beat, who placed on record sketch of the place of incident as Ex.21-A. P.W-15 at Ex.22 Sadaqat Ali, I.O. Thereafter learned DDA closed prosecution side, through statement dated 1.12.2004 as Ex.23.
5. At the closure of prosecution side, statement of accused were recorded under Section 342 Cr.P.C. at Exs.24 to 26 in which they repelled prosecution allegations. Accused Mst. Ladan stated that she was arrested three days prior to her production before the Magistrate for remand but remand was not obtained and she was kept in illegal custody at police station Diplo and she was maltreated and compelled to make confession. She had further stated that, Magistrate administered oath to her and her custody was handed over to the same police, after recording of confessional statement. She has also stated that she only understands Thari language. She is illiterate and her confessional statement was not read over, explained to her in Thari language by the Magistrate. She has also stated in her statement under Section 342, Cr.P.C. that, she is innocent and two days prior to death of her husband, who was removing roof of hut/chounra of his old house, he sustained injury on his head and other parts of his body due to fall of wooden beam / slab on his head, he died because of said injuries. She has further stated that, she asked her in laws to take her husband at hospital for treatment, but they did not listen to her and after death of Ishaque, her father-in-law (complainant Allah Warrayo) implicated her in this false case, with the allegation of illicit relations with co-accused Ghulam Muhammad. She prayed for justice and mercy.
6. Accused Ghulam Muhammad in his 342, Cr.P.C. statement has deposed that P.Ws have deposed against him, at the instance of complainant, who had dispute with him, on the passing of cattle from his land, as their houses are situated in the same land. He has further stated that he had no sexual relations with lady accused Mst. Ladan and she was tortured and put in fear by police to confess her guilt and he has also denied that, he had killed Ishaque with connivance of lady accused. Accused was asked whether he has to say anything else? He replied that, he is innocent and prayed for mercy . He further stated that, one or two days before incident Ishaque suffered head inquiry while removing wooden beam of his chounra and because of that injury he may have died.
7. Accused Rahimdino has deposed to a question why the P.Ws. have deposed against him? He has replied that, they have deposed at the instance of complainant, being maternal uncle of accused Ghulam Muhammad, with whom complainant is on the disputed terms over passing of goats from land. In reply to question, whether he wants to say anything else? He replied that, on the morning of the incident 20/25 persons brought dead body of deceased Ishaque from new house to old house. Complainant along with 50/60 persons had attended funeral and burial ceremony. He has categorically denied that, he had not uttered words that Ishaque had died as per wishes of Allah and the complainant party be quick for funeral and burial ceremony. Complainant with his relatives had buried the dead body of deceased Ishaque and he had not caused any role for disappearance of evidence. He has further stated that, accused Ghulam Muhammad is his nephew .
Houses of complainant and Ghulam Muhammad are situated in the same land and because of complainant's dispute with him, he implicated him in this false case. He is innocent and prayed for justice and mercy . However , the accused / private respondents have neither examined themselves on oath nor led any evidence in their defence.
8. It also appears from the record that the learned trial court after assessment of evidence of prosecution witnesses and documents on record coupled with statement of respondents recorded under Section 342, Cr.P.C. acquitted the accused / respondents through impugned judgment which is the subject matter of this appeal.
9. Learned counsel for the appellant submits that the learned trial court could not appreciate the evidence produced during trial. He submits that plethora of evidence was produced before the trial court, but the same was brushed aside without assimilating the crux and gist of the matter. According to him, serious allegations have been levelled against the respondents for committing murder of Ishaque by throttling and these respondents were in league for committing murder of Ishaque and this fact has been proved through evidence as well as statement of Mst. Ladan recorded under Section 164, Cr.P.C. before the Magistrate but the learned trial court overlooked the same. According to him, it is a case of misreading and non-reading of evidence. In the last he has prayed that the private respondents were responsible for committing murder of Ishaque, therefore, they may be punished according to law.
10. Learned counsel for private respondents supports the impugned judgment by submitting that the same is correct and proper. According to him, there is no misreading and non-reading of evidence in the impugned judgment. He further submits that the confessional statement of Mst. Ladan was not recorded in accordance with law even otherwise according to him this statement was recorded under pressure and after maltreatment and it has been brought on record that this statement was recorded on oath and after recording the statement the custody of Mst. Ladan was again handed over to the police. All these facts indicates that no reliance could be placed on the basis of inadmissible confessional statement of Mst. Ladan.
11. Mr. Shahzado Saleem and Mrs. Rameshan Oad, learned counsel appearing for State have also supported the impugned judgment by arguing that the impugned judgment delivered by the learned trial court is perfect on law and facts and according to them the learned trial court while delivering the acquittal judgment has addressed all the points involved in the case elaborately, therefore the same requires no interference.
12. We have heard the learned counsel for the parties at a considerable length and have gone through the evidence and documents available on record and after going through the record, come to the conclusion that prosecution has failed to establish its case against the respondents for the reasons that the alleged incident Look place on the night in between 24th and 25th January, 2004 in the house of complainant situated at village Verhijhap but the crime was reported at police station Diplo after 14 days of the incident i.e. 7th February, 2004 by father of deceased Ishaque (namely Allah Warrayo) but there is absolutely no explanation on record as to why the complainant party did not immediately report the matter to the police and remained mum for 14 days. During the course of arguments we have specifically asked the question from learned counsel for the appellant as to why the incident has not been immediately reported to the police and why the complainant party remained mum for such a long time; he has no plausible answer with him as such on this point false implication of the respondents could not be ruled out. It also appears from the FIR as well as evidence on record that there is no eye witness of the incident. However, prosecution has examined 15 witnesses but excepting judicial confession of accused lady Mst. Ladan, remaining evidence cannot be considered for conviction of the accused as they are not the eye-witnesses of the incident and nothing was recovered from the accused in their presence. Regarding confession of lady accused Mst. Ladan and on perusal of her statement under section 164, Cr.P.C. the same could not be said as voluntarily and appears to be inadmissible in the eye of law as the learned Magistrate Mr. Abdul Sattar Abbas, Civil Judge and Judicial Magistrate-I, Mithi in cross-examination has admitted that Mst.
Ladan gave her judicial confession on oath and this oath administered to the lady accused is violative to section 5 of the Oaths Act, 1897. Confession is recorded in contravention of section 5 of Oaths Act and in this regard we are supported with the case of Gulab Khan and another v. The State (PLD 1971 Karachi 299). In this authority it has been held as under:- "Statement purporting to be confession reciting that accused after administration of warnings was asked to give statement which he believed to be true before God-Confession, held, recorded on oath notwithstanding its being administered in a way different from one followed when examining witness and hence irrelevant."
13. It reveals from the record that lady accused who made confessional statement was in police custody from 9.2.2004, as admitted by mashir Gul Muhammad and so also date mentioned in the challan by police and she was produced before Magistrate for recording her confessional statement on 10th February , 2004, whereas P.W Jan Muhammad has admitted in cross that Mst. Ladan was arrested on the very day of registration of FIR i.e. 7.2.2004.
14. We have gone through the evidence of Mr. Abdul Sattar Abbas, Civil Judge and Judicial Magistrate, available on record at Ex.20 of the R&Ps in which he in his cross examination has admitted that after recording confessional statement of lady, custody of lady accused was handed over to the same police, who produced her before the court for recording her confessional statement. In our view after recording confession custody cannot be handed over to same police as held in the case of Gangoo Ram v. The State (2003 PCr.LJ Lahore 1608).
We have noticed that in the instant case, the Magistrate in his examination in chief has deposed that he had not given warning to the lady accused in case if she makes confession or does not make confession, her custody will not be handed over to same police and this fact was admitted by the said Magistrate in his cross examination. It is also admitted by the Magistrate in his evidence that search of person of lady accused was not taken place in order to determine any marks of violence present on her person, through any other lady and the Magistrate while recording confession has not correctly complied with requirement of law. We have noticed that in evidence the Magistrate has admitted that all questions were put to her in English, as proforma was circulated by the High Court although it has been brought on record that lady accused does not understand English and she only understand "Thari language". No requirement of section 364, Cr.P.C. has also been complied with by the Magistrate. To our mind that requirement of confessional statement are that it shall be free from inducement, threat, coercion and the same shall be true and voluntarily. We have noticed that the confessional statement of lady accused Mst. Ladan has not been recorded as per required procedure and same is retracted one, suffering from legal defects and cannot be relied upon for considering the same to award conviction. We have perused the evidence showing that there is absolutely no convincing evidence available on record for remaining other two accused namely Ghulam Muhammad and Rahimdino. Even otherwise none has witnessed the incident, FIR is belated by 14 days and no plausible explanation is given as admitted by complainant Allah Warrayo. We have gone through the evidence along with impugned judgment and find number of contradictions in the statements of prosecution witnesses, which are material and fatal to the prosecution case and these contradictions have already been highlighted by the learned trial Judge in its judgment of acquittal. When confronted all these aspects of the case to learned D.P.G. and A.P.G. they submitted that prosecution has no case and the trial court has rightly acquitted the respondents.
15. On marshalling the entire evidence and the documents on record, the view taken by the trial court is certainly a possible and plausible view. It is also a settled legal position that if trial court's view is possible and plausible, the Appellate Court should not substitute the same by its own possible view. The trial court has advantage of watching the demeanour of the witnesses who have given the evidence, therefore, the Appellate court should be slow to interfere with the decisions of the trial court. An acquittal by the trial court should not be interfered with unless it is totally perverse or wholly unsustainable. Learned counsel for the appellant could not show the specific part of judgment wherein the learned trial court has committed any gross illegality as the ocular and medical evidence is not favouring to the complainant.
16. We have considered the entire evidence and documents on record and the reasoning given by the trial court for acquitting the accused. In our view, the trial court carefully scrutinized the entire evidence and documents on record and arrived at correct conclusion. We are clear in our mind that the reasoning given by the trial court for acquitting the accused is wholly justified and sustainable and the same is in accordance with the settled principles of law. As such, on consideration of the totality of the circumstances, the instant appeal filed by the appellant is dismissed.
17. This appeal was dismissed in court by short order in the early part of the day and above are the detailed reasons thereof.