The appellant above-named, being aggrieved by the judgment dated 27th April, 1982 of the learned IInd Additional Sessions Judge, Hyderabad, Sind, given in Sessions Case No. 197/1980, by which appellant lies been convicted under section 302, P. P. C. And sentenced to suffer imprisonment of life and to pay fine of Rs. 1,000 or in default to undergo further imprisonment for six months has preferred the above appeal on the following facts and grounds.
2. The prosecution story as narrated in the F. I. R. Which was filed by Ramoon (P.W. 2), on the same day at Police Post Umer Sand, after about 8 hours of the incident, reads as under "The report is that I and my brother Ramshi are haries of Haji Dodo Sand. Today in the morning I was cutting grass in the cotton cultivation alongwith my sister Shrimati Shevi whereas my brother deceased Ramsbi was ploughing the land when at about 8-00 a.m. My brother raised cries. We saw that Moharram son of Imam Bux by caste Sand resident of Morio Sand was inflicting hatchet blows with sharp side to my brother Ramshi ; We gave him hakals and said him not to kill the man.
Saying so we immediately ran towards him; Sultan Sand also came running there, who also gave hakals to Moharram saying not to kill the man. Then Moharram seeing us coming ran away with his hatchet. We advanced and saw that deceased Ramshi had two fatal hatchet injuries on his left shoulder and jaw which were bleeding. The third hatchet wound was on the left temporal region, which was like the point of hatchet. Ramshi was lying on the ground and said that "I had suspected Moharram to be on illicit terms with my brother's wife namely Shrimati Vali as such I had restrained Moharram many times from passing nearby our houses. Today he has abused and has given me blows due to his above annoyance; Saying so Ramshi expired. Then I went to Wadero Bahadur Sand but he was not avail--able as such I waited for him. After about 4 or 5 hours Bahadur Sand came to whom I narrated the above facts, who advised me to go to P. S. And lodge report. Now I have come to lodge report leaving behind Sultan and my sister Shermati Shewi over the dead- body; I report that Moharram Sand has killed my brother Ramshi, who had pre--vented him from committing the illegal act pertaining to Gharat."
3. Moula Bux (P. W. 9), the A. S. I. Police Post Umer Sand recorded the report in the daily diary read it over to the complainant and obtained his I.T.I. Thereon. He also signed the same, which he has proved as Exb.
9. He then accompanied police constables Ghulam Sarwar and Muhammad Ismail to the Vardat and prepared the inquest report of the dead-body of Ramshi before Mashirs Dodo Khan and Saindino as Exh.
16. He also secured and sealed the blood-stained earth from the Vardat and prepared such Mashirnama of the Vardat before the above same Mashirs as Exh.
16. He then sent the dead body to the Taluka hospital Tando Allahyar, through PC Ghulam Sarwar for post- mortem and report. On the same day he examined P. Ws. Sultan and Shermati Shewi and arrested the appellant Moharram Sand from Pir Ji Marbi at about 19-00 hours in presence of Masbirs Dodo and Alidino. He then secured and sealed the blood stained hatchet from the appellant, alongwith his blood-stained clothes in presence of above same Mashirs vide a Mashir--nama as Exh.
17. On 20-7-1980 he produced the appellant before Mukhtiarkar and F.C.M., Tando Allahyar for recording his judicial confession, which was accordingly recorded on the very day. On the next day i.e. 21-7- 1980 he got the statement under section 164, Cr. P. C. Of P. Ws. Shermati Shewi and Sultan recorded before the above same Magistrate. He also secured and sealed the blood-stained clothes of the deceased Ramshi, which were produced before him by PC Ghulam Sarwar in presence of Mashirs Dodo and Allah--dino, vide a Mashirnama as Exh.
18. He examined Shermati Vali and P. W. Bhabdur on 22nd and 24th July, 1980 respectively. Thereafter, he handed over the case papers to S. H. O.
Police Station, Tando Allahyar and ultimately the appellant was challenged in the Court of learned Civil Judge and F. C. M., Tando Allahyar on 3-8-1980. The case was subsequently received by transfer by the learned trial Court on 24-9-1980, for disposal according to law.
4. The appellant in his statement under section 342, Cr. P. C. Has denied all the prosecution allegations levelled against him and ascribed the case to enmity with police and suspicion. He has further stated, that police has foisted blood-stained hatchet and clothes on him. He admitted having made judicial confession, but contended, that the statement has been extorted from him, under the pressure by police, which had called and detained his mother, father, wife and other women folk. He has further stated, that police had arrested Bhooro Kolhi, Sangban and Shermati Iila in connection with the instant case, but they were subsequently let off by the, police for the reasons best known to them. He had examined one witness namely Bhahdur in his defence, who has supported the defence version of the appellant regarding his false implication in the present case.
According to him on the day of incident he had gone to Tando Adam alongwith P. W. Sultan but on his return to his village alongwith P. W. Sultan, he was informed by complainant Ramoon and Dodo Khan, that Ramshi has been murdered. He has further stated that according to complainant Ramoon some graizers had informed him about the murder of deceased Ramshi. He has further supported the defence version regarding the detention of the relatives and women folk of the appellant by police.
5. The prosecution had examined Dr. Syed Mansoor Ahmed (P. W. 1), complainant Ramoon (P.W. 2), Shermati Shewi (P.W. 3), Sultan (P.W. 4), Dodo (P.W. 5), Tapedar Ali Ahmad (P.W. 6), Mr. Shamshad Ali the Mukhtiarkar and F.C.M. Tando Allahyar (P. W. 7), P. C. Ghulam Sarwar (P.W. 8), A.S.I. Moula Bux (P. W. 9) and mashir Allahdino (P.W. 10). The prosecution has closed its side vide Exh.
28. P. W. Dr. Syed Mansoor Ahmed is the Medical Officer and had conducted the post-mortem of the dead body. P. W. Ramoon is the com--plainant and had also witnessed the alleged incident. P. W.
Shermati Shewi and Sultan are also showed as eye-witnesses of the incident. P. W. Dodo is Mashir of the Vardat, injuries of the dead-body, the arrest of appellant and securing of blood-stained hatchet and clothes from his possession, but he has not supported the prosecution so far the securing of blood-stained hatchet and clothes from the appellant is concerned. P. W. Ali Ahmed, is the Tapedar and was showed the Vardat by P. C. Nabi Bux, P. W. Sultan and Shermati Shewi. He has prepared the sketch, which he has produced in triplicate as Exh.
20. P. W. Shamshad Ali, is the Mukhtiarkar and F. C. M. Tando Allahyar and has recorded the judicial confession of the appellant, which he has produced and proved as Exh. 23, P. W. P. C. Ghulam Sarwar is the corpse bearer, who bad brought the dead-body of deceased Ramshi to Taluka Hospital, Tando Allabyar for post- mortem. P. W. Moula Bux is the Investigating Officer and has conducted the investigation. P. W.
Allahdino is also mashir of the Vardat, and arrest of appellant .Etc. But he has also not supported the pro--secution.
6. The learned trial Court taking into consideration the evidence adduced by the prosecution, convicted and sentenced the appellant above-named, has hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in memo. Of appeal.
7. The learned Advocate for the appellant in support of above appeal submitted as under :-
(a) Delay in lodging of F.I.R. Is not satisfactorily explained and as such false implication after consultations, cannot be ruled out. In support of this contention the learned Advocate for the appellant relied upon cases reported in PLD 1965 Kar. 76 and 1969 SCMR 629.
(b) Complainant has stated, that F. I. R. Was recorded after preliminary investigation and as such the said F. I. R. Is inadmissible in evidence,
(c) Recoveries from the appellant have not at all been proved,
(d) Retracted judicial confession are not proved by acceptable pieces of evidence. In support of this contention the learned Advocate for the appellant relied upon cases reported in PLD 1975 SC 187, PLD 1978 SC 200 and PLD 1964 Kar. 269.
(e) P. Ws. Inter-related and no grass were found near Vardat at all and as such presence of P. W.
Doubtful. In support of this contention the learned Advocate for the appellant relied upon unreported judgment of the Hon'ble Supreme Court in Case No. K-10%1981 dated 21-9-1981.
(f) No evidence of alleged motive led by the prosecution and as such motive not proved. In support of this contention the learned Advocate for the appellant relied upon 1975 P Cr. L J 1096.
8. The learned Advocate appearing for the State on the other hand submitted, that be fully supports the impugned judgment, as delay in lodging of F.I.R. Has been satisfactorily explained, recoveries have been fully establish--ed by the evidence of Investigating Officer (1972 P Cr. L J 195).
He further submitted, that prosecution has established its case beyond reasonable doubt by statements of P.Ws. 2 and 3 coupled with recoveries and judicial confession.
9. I have carefully considered the above submissions made by learned Advocates before me and have gone through the R & P of the learned trial Court and the impugned judgment as well as various authorities cited- by the learned Advocates before me.
10. The prosecution in support of its case has relied upon the state--ments of P. W. 2 Ramoon (complainant) (brother of the deceased), P.W. 3 Shrimati Shevi (sister of the deceased), P. W. 4 Sultan P. W. 5 Dodo, P. W. 7 Shamshad Ali (F. C. M.) P. W. 9 Moula Bux (I. O.) and P. W. 10 Allahdino, the Mashir of the arrest of the appellant besides other formal witnesses.
11. P. W. 2 and P. W. 3 as well as P. W. 4 are alleged eye-witnesses of the incident in question. P. W. 2 and P.W. 3 are closely related to the deceased and as such interested witnesses, who have no doubt supported the prosecution case. However, ('. W. 4 Sultan, the only independent eye-witness did not support the prosecution case and as such he was declared hostile, but his evidence was not shaken by cross-examination by D. P. P., P. W. 5 Dodo is the Mashir of the arrest and production of blood-stained hatchet by the appellant, but this witness has not at all supported prosecution on these points and as such was declared hostile by the prosecution. The second Mashir of the appellant's arrest and recovery of hatchet was P. W. 10 Ali Dino, who has also not at all supported the prosecution case in this connection and as such was declared hostile. P. W. 2 Ramoon in his statement before the learned trial Court changed his statement regarding having witnessed appellant giving hatchet blows to the deceased. In his cross-examination be stated, that his sister P. W. 3 Shrimati Shavi had informed him, that she had seen appellant running away after causing fatal injuries to the deceased. This witness in his cross-examination admitted, that he identified the appellant from his clothes and his statute only. Similarly P. W. 3 Shrimati Shavi, no doubt in her statement stated that she saw appellant giving hatchet blows to her deceased brother. However, in her cross-examination she admitted, that she identified the appellant on account of his clothes and stature. She further in her cross-- examination admitted, that Bhooro and Shoogan were arrested by police on suspicion. The explanation for delay in lodging of the F.I.R. Has not been explained satisfactorily in my opinion. Both Mashirs of the arrest and production of the blood- stained hatchet by the appellant did not support the prosecution at all, on these points and as such they were declared hostile. The judicial confession has been retracted by the appellant and I agree with the contention of the learned Advocate for the appellant, that the retracted judicial confession of the appellant has not been corroborated by acceptable pieces of evidence and as such it cannot be used as a corroborative piece of evidence against the appellant and the authorities cited by the learned Advocate for the appellant are fully applicable to this case. As far as the recoveries of the blood-stained hatchet and the clothes from the possession of the appellant are concerned, both the Mashirs did not support the prosecution and as such it would be unsafe to rely on the evidence of investigating officer only in order to establish such recoveries from the appellant. In this connection the case) reported in 1975 P Cr. L J 1096 fully supports the contention raised by the learned Advocate for the appellant. Even the alleged Judicial confession of the appellant did not admit of the murder as alleged by the prosecution, but gives a different version. The prosecution failed to lead any evidence I respect of motive as alleged in the F. I. R. And as such the said motive stand disproved. In addition to this, evidence of P. W. Dodo and Ali Dino the, Mashirs of the arrest and production of blood-stained hatchet by the appellant create doubt about the honesty of the police investigation and as such it would be unsafe to accept the evidence of I.O. Alone on this account, in view of this as well. P. W. 1 Bahadur in his examination-in-chief stated, that complainant Ramoon and Dodo Khan came and informed him that deceased was; murdered by some one and that his dead-body was lying in his field. This witness further stated, that P. W. 3 Shrimati Shavi sister of the deceased had told him, that her brother was killed by Bhooro and Shoogan as they suspected the deceased to be on illicit terms with the wife of Bhooro. This witness further stated, that appellant was arrested on the next day, so also appellant' father, brother, sister and wife, who were later on released. I find that hi statement was not at all shaken in his cross- examination by A.P.P. And as such his statement and the contradictions in the statements of P. W. 2 and P. W. 3 inter se and on account of failure of P.W. Sultan the alleged eye-witness and the, Mashirs of the alleged recoveries of blood-stained hatchet and clothes from the: appellant to support the prosecution case, in my opinion prosecution has fail ed to establish its case beyond reasonable. Doubt against the present appellant.
12. Therefore, I allow the above appeal and set aside conviction and sentences awarded to the appellant and acquit him by giving him benefit o doubt. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.