1. Appellant above named, being aggrieved by judgment dated 13tb September, 1981 of the learned Sessions Judge, Hyderabad, in Sessions Case No. 289/80, by which appellant has been convicted under section 302, P. P. C: and sentenced to suffer life imprisonment and also to pay a fine of Rs.
2. 5,000 or in default to suffer further R. I. For one year, has preferred the above appeal, on the following facts and grounds :- Broad facts of the prosecution case are, that the deceased Mewo and his mother Mst. Manna originally belonged to village Photo Khaskheli, in Taluka Tando Allahyar. They had migrated to village Mir Hassan Marri, in Taluka Tando Allahyar and were serving there with a Syed Family. The deceased Mewo was a motor driver. His mother Mst. Manna was serving as a maid-servant. The appellant Dosu used to reside at village Photo Khaskheli. There was a marriage ceremony festival of Bhai Khan son of Mir Khan Khaskheli at village Photo Khaskheli, on 26th of October, 1980. The deceased Mewo and his mother attended marriage ceremony on invitation. It is alleged, that the appellant had misbehaved with a cousin of the deceased Mewo, by name Allah Jurio by lifting the cot of his wife some days before and the deceased remonstrated with the appellant in respect of the incident in the morning hours of the day of the incident viz. 26th of October, 1980. It is further alleged, that the deceased Mewo-and his mother Mst. Manna left village Photo Khaskheli, at about 10 a. m. And they were on the it way to their village, when the appellant Dosu overtook them and belaboured the deceased Mewo with hatchet blows at a nearby `Murrhi' of one Haji Hussain Khaskheli and caused his instantaneous death. Besides Mst. Manna, the incident was also witnessed by P. Ws. Allahdad and Moula Bux Khaskhelis, who were available at nearby cotton fields.
3. The eye-witnesses raised alarm. Many persons of the village, including Haji Karroo, reached there and were apprised of the incident. The appellant successfully escaped and went to his village.
4. Report of the incident was made at Tando Allahyar Police Station, at about 12 o'clock mid-day, by Mst. Manna.
5. Mahboob Ahmad S. I. P. Who was incharge Police Station, Tando Allahyar, registered the crime. He recorded statement of Haji Karroo, who had accompanied Mst. Manna for lodging report. He then went to the wardat and inspected it, in presence of Misri and Haji Karroo mashirs. He saw the deceased and found hatchet injuries on him. He collected blood-stained earth. He prepared such mashirnama. He then prepared inquest report of the corpse in presence of same mashirs and forwarded it to the Medical Officer, Tando Allahyar, through Muhammad Saleh P. C: for its post- mortem examination. He then arrested the appellant at his house in village Photo Khaskheli, in presence of same mashirs and reco--vered from his person blood-stained shirt and shalwar. On interrogation, the appellant produced before him a blood-stained hatchet from a corner of his house. The Investigating Officer recorded statements of the witnesses Allahdad, Moula Bux, Haji Mir Hussain and others. The appellant was produced' before the Mukhtiarkar and F. C. M. Tando Allahyar on 27th October, 1980, for the recording of his judicial confession, which he did. 164, Cr. P. C.
6. Statements of P. Ws. Allahdad and Moula Bux were recor--ded by the same Magistrate on 28th October, 1980. The blood-stained articles were forwarded to the Chemical Examiner. After completion of the investigation, the appellant was challaned.
7. The appellant has been tried on the charge of an offence punishable under section 302, P. P. C.
8. Prosecution had examined Sher Muhammad Tapedar (P. W. 1), Muhammad Hashim (P. W. 2), Medical Officer, Dr. Iqbal Ahmad (P. W. 3), Haji Karroo Mashir (P. W. 4), Muhammad Saleh P. C. (P. W.
9. 5), Mr. Shamshad Ali, Mukhtiarkar and F. C. M. (P. W. 6), Mst. Manna complainant (P. W. 7), Allahdad eye-witness (P. W. 8), Moula Bux eye-witness (P. W. 9), and the Investigating Officer, Mahboob Ahmed S. I. P. (P. W. 10).
10. The appellant had denied all the allegations levelled against him. He had denied that he assaulted the deceased Mewo to death. He had also made specific denial of recovery from him of blood- stained clothes and hatchet. He had also denied that he had made, judicial confession. He has alleged false implication at the instance of P. W. Haji Karroo on account of enmity. He had examined 5 witnesses in defence. They are Misri (D. W. 1), Muhammad Parial (D. W. 2), Rabdino (D.
11. W. 3), Raboo (D. W. 4), and Nihal (D. W. 5).
12. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above named as hereinbe--fore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
13. The learned Advocate for the appellant in support of the above appeal submitted as under;-
(a) That the appellant has been involved falsely an account of enmity and as such no reliance can be placed on the statement of alleged eye-witnesses namely P. W. Mst. Manna, P. W. Allahdad and P. W. Moula Bux as well as P. W. Haji Karroo (mashir) as all these witnesses are closely related without independent corroboration, which in the present case is not at all available as no reliance can be placed on the alleged recoveries.
(b) That the alleged judicial confession was under duress and further--more even the learned trial Court has not fully relied upon the said judicial confession, which was retracted by the appellant and conse--quently the entire confession ought to have been discarded, in the absence of any corroborative evidence.
(c) That the only independent prosecution witness was P. W. Misri, the alleged mashir of the recovery alongwith P. W. Haji Karroo, but the prosecution without any reasons did not examine him and consequently he was examined as a defence witness. This D. W. Has not at all supported the prosecution case, but on the contrary has falsified the alleged recoveries and even possible presence of Mst. Manna and P. W. Allahdad at the wardat, at the time of incident.
14. In support of the above contentions the learned Advocate for the appellant relied upon cases reported in PLD 1973 SC 321, .PLD 1981 Kar. 1, PLD 1977 SC 557, 1983 P Cr. L J 427 and 1971 SCMR 432 and submitted that the prosecution has failed to establish its case beyond reasonable doubt, against the appellant above named.
15. The learned Advocate appearing for the State on the other hand submit--ted, that he was fully supporting the impugned judgment. He further stated, that the learned lower Court has wrongly discarded statement of P. W. Moula Bux. He further submitted that P. W. Manna and Allah Dad were the natural witnesses and as such prosecution by their statements has fully established its case, fully corroborated by recoveries of blood--stained clothes and hatchet from the possession of the appellant above--named by the statement of P. W. Haji Karroo.
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 as well as impugned judgment and the cases cited by the learned Advocate for the appellant.
17. Prosecution case rests upon the statement of P. W. Mst. Manna, P. W. Allahdad and P. W. Moula Bux the alleged eye-witnesses of the incident. The learned trial Court discarded the statement of P. W.
18. Moula Bux, as it came to the conclusion, that his presence was doubtful, as he was a chance witness. I find the reasons given by the learned trial Court for discarding the statement of P. W.
19. Moula Bux cogent and see no reason to disagree with this finding. Coming to the statement of Mst.
20. Manna it maye be noted, that she is the real mother of the deceased and according to D. W. I Misri, she came to the wardat after 1-- hours of the incident and according to D. W. 5 Nihal P. W. Mst.
21. Manna and her daughter received the news of the death of her son from a by, in his presence and she was not aware of the incident prior to this. I find that the statements of D.W. 1 and D. W. 5 were not at all shaken in their cross-examination and as such by the statement of two D. Ws. One of whom namely D. W. Misri was originally a prosecution witness, the appellant has created reasonable doubt, about the presence of Mst. Manna at the time of the actual incident. As far as P.
22. W. Allahdad is concerned, it may be noted; that according to him he was grazing his cattle in the cotton field alongwith P. W. Moula Bux and from where he alleged to have seen the incident. The learned trial Court has disbelieved presence of P. W. Moula Bux at the time of incident and consequently the statement of this P. W. In view of his assertion, that P. W. Moula Bux was with him, cannot be relied upon, without indepen--dent corroboration. The prosecution for purposes of such corroboration has relied upon the alleged recoveries of blood-stained clothes and hatchet from the possession of the appellant, on the basis of the statement of P. W. Haji Karroo, the mashir of the alleged recovery. It may be noted, that he is closely related to the deceased and complainant Mst.
23. Manna and accompanied complainant Mst. Manna for lodging of F. I. R. And as such very highly interested witness. In spite of this the I. O. Chose this P. W. As one of the mashirs and the prosecution did not examine the other mashir P. W. Misri, who was independent and consequently he was examined as a defence witness, but he did not support the prosecution case at all. The I. O.
24. Has given no explanation at all for not picking up independent and respectable witnesses of the locality as mashirs and has given no reason why he selected close relation and interested person like P. W. Haji Karroo as the second mashir of the alleged recoveries. In view of this, in my opinion, the I. O. Has violated the mandatory provisions of section 103, Cr. P. C. And consequently no reliance can be placed on such recoveries, merely on the basis of the statement of I. O. In view of the facts and circumstances of the present case. It may further be noted, that according to motive given in the F. I. R. The appellant had no cause to murder the deceased. P., W. Allah Jurio as well as Mst.
25. Jamzadi were not at all examined by the prosecution to prove the alleged motive. This creates a doubt about the prosecution version of the case, as the motive alleged in the F. I. R. Was not at all established by the prosecution.
26. In view of my above appraisal of the statements of the prosecution witnesses and conclusions in my opinion, prosecution has failed to estab--lish its case beyond reasonable doubt against the appellant, as no reliance could have been placed on the alleged judicial confession of the appellant at all for purposes of corroboration, as the said retracted judicial confes--sion itself required independent corroboration, which is not at all available as one weak piece of evidence cannot corroborate another weak piece of evidence.
27. In view of this the cases cited by the learned Advocate for the appellant are fully applicable to the facts of the present case and I see no reason to agree with the contention of the learned Advocate for the State, that the statement of P. W. Moula Bux was wrongly discarded by the learned trial Court.
28. Therefore, I allow the above appeal and set aside conviction and sen--tences awarded to the appellant by the impugned judgment and acquit him by giving him benefit of doubt and direct, that he may by release forthwith if not required in any other case.