1. Appellant above named, being aggrieved by judgment dated 26th November, 1979 of the learned Additional Sessions Judge, Sanghar, in Sessions Case No. 114 of 1975 by which appellant has been convicted under section 302, P.P.C. And sentenced to suffer imprisonment for life and to pay a fine of Rs. 2,000 or in default to suffer further R.I. For 2 years, has preferred the above appeal, on the following facts and grounds :- The prosecution story briefly stated is as under :- The complainant Haji Khambbar Khan, who is father-in-law of the deceased, lodged F. I. R. At P. S. Khipro on 23rd March, 1974 at 5-00. Am. Alleging, that offence took place on the same day at 4-00 a.m. In the F.I.R. It is alleged that deceased Ramzan was running a Tailoring shop, where Nazir son of appellant Boota was also working since last 6. Or 7 years, as a partner. It is added that Nazir sold his goats and entrusted Rs. 500 with deceased saying, that he will take the amount back, on the occasion of his marriage. Said Nazir also told the deceased not to inform his father viz. Appellant Boota, about this money. After few months appellant Boota learnt about the trust money and made demand from deceased Ramzan who replied that it will be paid to his son Nazir. This annoyed appellant Boota, who was indulging in "Enchanting" (i.e. Kato Ilam of magic). As per F. I. R.
2. Deceased Ramzan fell ill and was informed by a "Darwesh", that appellant Boota has put him under his magic power and even some bones were recovered from house of deceased. It is further added, that appellant even sprinkled kerosine oil on the doors and windows of the house of the deceased, and made his escape good when deceased woke up. It is further case of the complainant in F. I. R. That appellant had accepted his guilt in the gathering of Muhallah meeting and had demanded money kept by his son. The money was ultimately paid to the appellant by deceased in presence of Muhallah people. The appellant then shifted from Khipro to Mirpurkhas as he became known as magician (Jadoogar). According to the F.I.R. On the night of incident viz. 23rd March, 1974 at 4-00 a.m. Complainant woke up on cries and when came out of his house, went towards cries where, his brother Imamuddin was living in adjoining house was raising cries. The neighbourers Inayat Ali , and others reached there. They all saw deceased Ramzan amidst flames of fire caught to the clothes with his hands and legs tied. P.Ws. Imamuddin and Ghulam Mustafa extinguished fire and untied legs and arms of the deceased, alongwith other persons. On inquiry deceased Ramzan informed all the persons present, that he came out of his house on hearing knock at the door, when appellant caused him blow on the head and put small stones in his mouth and also tied his arms and legs and then sprinkled kerosene oil on his body and put on fire saying, that deceased had given false publicity to appellant as a Jadoogar. P. W. Inayat who was also present informed the complainant and other witnesses, that when he came out of his house, he saw appellant Boota in torch light running, while deceased Ramzan was burning at that time. The complainant went to the P.S. And lodged F.I.R. Which was recorded by S.H.O. Abdul Khalique under section 307/325. P. P. C.
3. The S.H.O. After recording the F.I.R.-obtained signature of complain--ant and then accompanied him to the wardat. He examined body of Ramzan which had burnt marks, excepting on chest and face. He also recorded statement of Ramzan in presence of mashirs Imamuddin and Munawar as Ramzan was in senses and able to speak. He then referred the deceased to Medical Officer, Khipro.
4. Deceased was then referred to L.M.C.H., where he died on 24th March, 1974. The police then changed the offence under section 302, P. P. C. The S.H.O. P. Had prepared mashir--nama of wardat. He also secured small piece of stone having blood marks which was thrusted in mouth of the deceased. The Investigation Offices also secured an empty bottle of kerosine oil and a piece of brick from the wardat in addition to Muffler head cover, shirt and shalwar of the deceased having burnt marks. He then examined P.Ws. Imamuddin, Inayat Ali, Ghulam Mustafa, Muhammad Ishaq, Ghulam Muhammad and Taj Muhammad. He also secured a torch from P. W. Inayat Ali, under a mashirnama in presence of the mashirs. The appellant could not be arrested on 23rd and 24th March, 1974. However, the police arrested appellant on 25th March, 1974 from Mirpurkhas in presence of mashirs. On 26th March, 1974 appellant was produced before Civil Judge and F.C.M., Khipro, who recorded his judicial confession. On 8th April, 1974, the police got 164, Cr. P. C.
5. Statements of P.Ws. Imamuddin, Ghulam Muhammad and Inayat Ali recorded from the Court of Mukhtiarkar and F.C.M., Khipro. He also received papers from the police attached with L.M.C.H., Hyderabad about death of deceased. Finally the appellant was challaned to face trial.
6. The prosecution in support of its case had examined in the learned trial Court Haji Khabbar Khan Exh. 5, who produced original F.I.R. Exh. 6 and his lower Court statement Exh. 7, P.W. Imamuddin Exh.
7. E, who produced mashirnama of wardat Exh. 9, mashirnama of injuries on the body of the deceased Exh. 10, mashirnama of securing of torch from P.W. Inayat Ali Exh. 11 and lower Court statement Exh. 12, P. W. Inayat Exh.
13. The prosecution also examined Tapedar Muhammad Ramzan Exh. 14 who produced sketch of wardat Exh. 15, P.W. Ghulam Muhammad Exh.
16. The prosecution also examined Mr. Qazi Muhammad Hussain Siddiqi, who had recorded judicial confession of the appellant in capacity of Civil Judge and F.C.M., Khipro. He, produced original confession Exh. 18 and original letter addressed to him Exh.
19. The prosecution also examined S.H.O., Abdul Khalique Exh.
8. 20, who produced, original dying declaration of deceased Ramzan Exh.21, mashirnama of arrest of appellant Exh. 22, mashirnama of injuries on the body of deceased Exh. 23, inquest Report Exh. 24.
9. The learned A.P.P. Moved application Exh. 25 for bringing on the record evidence of the M.O. Which was granted and statement of doctor recorded by lower Court exhibited as Exh. 26 and post- mortem notes Exh.
27. The learned A.P.P. Closed the side vide statement Exh. 28.
10. The appellant did not plead guilty to the charge Exh.
2. In his statement Exh. 29, he denied almost all the allegations made by the prosecution. According to him, he had gone mad and was sent to mental Hospital, where he was cured. According to him, he could not say whether he went mad either after or before death of deceased Ramzan. The appellant vide statement Exh. 30 did not examine any witness in defence.
11. The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant above named as hearing before mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
12. The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) That all the P. Ws. Are interested and closely related and in view of the alleged enmity suggested by the appellant to them, no reliance can be placed on their statements, without independent corroboration. 1n support of this contention the learned Advocate for the appellant relied upon cases reported in PLD 1973 SC 321 and PLD 1981 Kar. 1.
(h) That alleged judicial confession was not voluntary and further--more police was present within the premises when the alleged judicial confession is said to have been recorded and furthermore the appellant retracted from the said confession and as such it ought to have been discarded by the learned trial Court.
(c) That the learned trial Court has erred in relying upon 161, Cr. P.C. Statement of the deceased as dying declaration when the police failed to get the dying declaration of the deceased recorded before the doctor and/or Magistrate, although the deceased lived 3 days after the incident and consequently the said statement of the deceas--ed ought to have been completely discarded instead of being relied upon as dying declaration. In support of this contention the learned Advocate for the appellant relied upon cases reported in 1976 P Cr. L J 545 and NLR 1982 Criminal 143.
(d) That there is discrepancy in medical and ocular evidence as according to post-mortem deceased had no injury on his head and consequently no reliance can be placed on the alleged eye-witnesses without independent corroboration on this ground also.
(e) That the identification by alleged eye-witnesses from a distance of 225 feet on torch light is doubtful and as such no reliance could have been placed on such identification by them. 1n support of this contention the learned Advocate for the appellant relied upon cases reported in 1978 P Cr. L J 579, 1970 P Cr. L J 633, 1982 P Cr. L J 808 and PLD 1978 Lab. 1060.
13. (f)That neither torch nor the other things alleged to have been recovered from the wardat were produced before the learned trial Court and on this ground alone the conviction of the appellant cannot be maintained. In support of this the learned Advocate relied upon case reported in 1973 P Cr. L J 395.
14. The learned Advocate appearing for the State on the other band submitted, that he was fully supporting the impugned judgment as the respondent has established its case by statement of P.
15. W. Inayat Ali, who is neither related to any party nor enmity is alleged against him. He further submitted that the judicial confession was voluntary and the cases cited by the learned Advocate for the appellant are based on different facts and as such not applicable to the present case.
16. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court and the impugned judgment and the cases cited by the learned Advocate for the appellant.
17. The prosecution case rests upon the alleged eye-witnesses namely P. W, Imamdin and P. W. Inayat.
18. It is an admitted position, that P. W. Imamdin is closely related to the complainant. I have carefully gone through the statement of this P. W., which does not inspire confidence A and further more the appellant has alleged enmity with this witness, on account of matrimonial dispute and consequently it would be unsafe to rely on his statement without independent corroboration. The next pro--secution witness is P. W. Inayat. This witness before the learned trial Court stated, that on torch light, he identified the appellant, who was then running away, as he had come out on cries.
19. The prosecution has relied upon his statement as an independent eye-witness corroborating the statement of P. W. Imamdin and other prosecution witnesses. It may be noted, that in his cross- examination this witness-admitted, that he had accompanied the deceased to Hyderabad and remained throughout till his death. This shows, that this witness was very closely connected with the deceased and the complainant side acid as such cannot be considered to be an independent witness for purposes of corroborating the statement B of P. W. Imamdin. The prosecution has also relied upon alleged dying declaration in the shape of 161, Cr. P. C. Statement as well as oral dying declaration made before P. W. Imamdin and P. W. Inayat, soon after the incident. In this connection it may be noted, that the deceased remained alive 3 days after the incident, but the Investigation Officer did not think it right to get his statement recorded in the presence of doctor or get his statement recorded by a Magistrate. The prosecution relied upon the statement of deceased recorded under section 161, Cr. P. C. As dying declaration and the learned trial Court accepted such proposition it my opinion the statement of the deceased under section 161, Cr. P. C. Cannot be considered as a dying declaration, as rightly urged by the learned Advocate for the appellant and the cases cited by the learned Advocate for the appellant reported in 1976 P Cr. L J 545 and 1982 NLR (Cr.) 143 fully support contention of the learned Advocate for the appellant, I am also in full agreement with these cases, for the reasons given therein and as such I am of the opinion, that the statement of the deceased recorded under section 161, Cr. P. C. Cannot be used as his dying declaration. I also find discrepancy in medical and ocular evidence, in respect of the alleged injury received by the deceased on his head. Post-mortem report Exh. 27 and the statement of Doctor Abdul Majeed Exh. 7 clearly shows, that the deceased had no injury on his head. In view or this also, no reliance can be placed on the statement of deceased recorded under section 161, Cr. P. C. And.
20. Dying declaration, as deceased in hill said statement has talked about receiving injury on his head.
21. It may further be noted, that P. W. Inayat is alleged to have recognised and. Identified the appellant from the distance of 225 feet on the torch light. Identification in such manner, from such long distance per se is doubtful. This view of mine is fully supported by cases reported in 1978 P Cr. L J 579, 1970 P Cr. L J 633, 1982 P Cr. L J 808 and PLD 1978 Lah. 1060. It is also admitted position, that neither torch nor other things alleged to have been recovered from the place of incident were produced before the learned trial Court and on this ground alone the prosecution case against the appellant becomes doubtful. In this connec--tion a case reported in 1973 P Cr. L J 395 is fully applicable with which I am in full agreement for the reasons given in the said judgment. It may further be noted, that complainant had denied relationship with Mst. Sara over which the appellant had claimed enmity, but P. W. Imamdin con--firmed such relationship between the complainant and Mst. Sara and consequently on this ground also, no reliance can be placed on the state--ment of the complainant, without independent corroboration. It may be, noted, that the judicial confession in question was recorded no doubt by a Magistrate, but the learned Magistrate in his statement before that learned trial Court admitted, that some police was present at that time, for looking after custody. In view of this and the fact that the appellant' has retracted from the said confession, no reliance could be placed on such judicial confession in my opinion. Keeping in view the above appraisal of the statements of the prosecution witnesses and my conclu--sions in this connection, in my opinion, prosecution has failed to establish its case beyond reasonable doubt against the appellant.
22. Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant in the above appeal.