The appellant, above named, being aggrieved by judgment dated 30th May; 1981 of the learned Sessions Judge, Thatta, in Sessions Case No. 25/78, by which appellant has been convicted under section 302, P. P. C. And sentenced to suffer Imprisonment for life and also to pay fine of Rs. 5,000, or in default to suffer further R. I. For 2 years, while two co-accused were acquitted, has preferred the above appeal, on the following facts and grounds :-
2. Complainant Allahdino lodged F. I. R. At Police Station Mirpur Bathoro on 22nd of August, 1978 stating therein, that about one year prior to the incident, he and his brother. Deceased Ismail had impounded the cattle of appellant Siddique and co-accused Ramzan, because damage was done to their cultivation. Accordingly, both these appellant as well as co-accused got annoyed with the complainant and Ismail. On 21.8-1978, i.e. One day prior to this incident, appellant Siddique wanted to impound the cattle of the entire village people, in the cattle pound, because his cultivation was damaged by these cattle. However, at the behest of their Nekmard Ahmed, the appellant Siddique released the cattle of other villagers, but refused to do so in so far as the cattles of Ismail were concerned, on the ground, that Ismail had earlier impounded his cattles. On the following day viz. 22-8-1978, in the morning time, deceased Ismail was going towards his lands, while he was being followed by the complainant and P. W's Ladho and Soomar. When at about 7-00 a.m. They reached near the village of appellant Siddique on the top of Bagbor Wah, they saw the above appellant emerging from the jungle. Appellant Siddique and co-accused Ramzan were wielding hatchets, while Khamoon was carrying lathi with him and he instigated his two companions, on which both the appellant and co-accused Ramzan gave blows to Ismail as a result of which he fell down. The complainant party extended challenges to the appellant and so latter ran away to their village. On coming near Ismail, the complainant party saw two hatchet injuries on the person of Ismail and also found him unconscious. On their cries, P. Ws. Ahmed, Muhammad Hussain and Usman also came there and so, with the help of these persons, this injured Ismail was attempted to be carried to the Police Station Mirpur Bathoro. However, Ismail succumbed to his injuries on the way, but still his corpse was taken to the police station, where the complainant Allahdino lodged his report referred to above.
3. S. H. O. Mirpur Bathoro Police Station Muhammad Yousuf (Exh. 28), recorded first report of the complainant at 10-30 a.m. As per Exh. 14, and then took up the investigation of this case.
Accordingly, he first prepared memo. Of dead, body in presence of mashirs Ahmed and Gul Hassad, at the police station as per Exh. 19, and then he held inquest on the dead body in presence of the sable mashirs, as per Exh.
20. Thereafter, this Invesigation Officer despatched the dead body of deceased Ismail alongwith a letter, through P. C. Muhammad Younis to the Medical Officer, Mirpur Bathoro; for post-mortem examination and report. He also recorded statements of P. W's. Soomar, Ladho, Ahmed, Muhammad Usman and Hussain and then repaired to the place of occurrence, which was shown to him by the complainant, in presence of the same mashirs. It was situated near Baghar Wah. He found blood on the ground and so he- secured and sealed blood- stained earth in presence of same mashirs. A memo. To this effect was also prepared by him in presence of the same Mashirs, as per Exh.
21. He also prepared a rough sketch of the Vardat, as per Exh.
29. He then examined Ber Khan and then arrested, the appellant Siddique from his own house in his village, Habib Paryar, before the same Mashirs, as per Exh.
22. This appellant volunteered to produce the weapon of offence used by him and so he secured one blood-stained hatchet in presence of the same Mashirs and which was produced ,before him by the appellant Siddique, from the place behind his house from the jar bushes. It was accordingly secured and sealed in presence of the same Mashirs, as per Exh.
23. He then arrested co-accused Muhammad Ramzan from his house in presence of same Mashir; as per Exh. 24.. He searched the house of this accused and secured one hatchet from the North-West corner of his house, but it was not stained with blood and so it was not sealed. However, it was secured, as per memo. Exh.
25. After detailing A. S. I.
Saindad to arrest the third co-accused Khamoon, the Investigating Officer returned to the Police Station. This A. S. I arrested the co-accused Khamoon and secured one Lathi from him, as per Exh.
26. On 23rd of August, 1978, appellant Siddique was produced before the Civil Judge F. C. M., Sujawal for getting his confession recorded and after his statement under section 164, Cr. P. C. He was remanded to judicial custody. On 26th of August, 1978 statement of P. W's Soomar, Ladho were not recorded before Mukhtiarkar and F. C. M., Mirpur Bathoro and, finally, the appellant and co- accused were challaned in the Court of Civil Judge and F. C. M. Sujawal on 30th of August, 1978 and who, in turn, sent up the appellant and co-accused to the learned trial Court to face their trial, under section 302./34, P. P. C.
4. The learned trial Court framed and read over the charge under section 302 read with section 34, P. P. C. On 21st of January, 1980 and since the appellant and co-accused pleaded not guilty, the prosecution was called upon to lead evidence.
5. To substantiate its case, the prosecution examined complainant Allahdino, P. Ws. Ladho and Soomar, as witnesses of occurrence, while P. W. Ahmed has been examined rot only as corroborative witness, but also as a Mashir in respect of all the Mashii namas prepared by the police and brought on record by the prosecution. Besides, tapedar Ahmed Khan, who had prepared sketch of Vardat ; Dr. Abdul Hameed, wk6- held autopsy on the dead body of deceased Ismail; Investigation Officer Muhammad Yousuf, and, finally Mr. Sultan Ahmed Siddiqui, the then Civil Judge and F. C. M., Sujawal and who had recorded the confession of appellant Siddique, were examined by the prosecution. The side of the prosecution was closed, as per Exh. 34.
6. After the evidence referred to above, appellant as well as co-accused were examined under section 342, Cr. P. C. But all professed their complete innocence. Appellant Siddique denied to have made any confession before the Magistrate. None of the appellant and co-accused, however, entered into their defence, as per Exhs. 38 to 40, respectively.
7. The learned trial Court taking into consideration the evidence adduced by the prosecution convicted the appellant above named, as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
8. The learned Advocate for the appellant in support of the above appeal submitted as under :-
(a) That ocular evidence which was disbelieved in respect of two acquitted co-accused, has been believed in respect of the present appellant, without any cogent reasons.
(b) That the alleged judicial confession of the appellant would make out at the most case under, section 3u4, P. P. C. Against the appellant and since this confession was retracted, it needed corroboration, before it could be relied upon, but in spite of this the said retracted confession has been relied upon without independent corroboration.
(c) That in the alternative the offence if any, committed by the appellant, on the basis of retracted confession would fall under section 304(I), P. P. C. And not under section 302, P. P. C.
9. In support of the above contentions the learned Advocate for the appellant relied upon cases reported in PLD 1964 Kar. 278, PLD 1964 Pesh. 1, PLD 1974 Lab. 450, PLD 1977 Kar. 432 and PLD 1978 Pesh. 116.
10. The learned Additional Advocate-General appearing for the State at the outset submitted, that he was not supporting the impugned judgment, as the evidence on which the appellant has been convicted has been disbelieved in respect of the two acquitted co-accused, and furthermore the alleged recoveries from the present appellant have not been proved beyond reasonable doubt. In addition to this the learned Additional Advocate-General submitted, that the retracted judicial confession of the appellant requires independent corrobora--tion, which in his opinion was not available in the present case.
11. 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 the impugned judgment and the authorities cited before me.
12. I find no force in the first contention of the learned Advocate for the appellant, as the learned trial Court in view of corroborative pieces of evidence of recovery of blood-stained hatchet and judicial confession of the appellant, believed the statements of P. Ws. Against the appellant and for cogent reasons disbelieved the said P. Ws. In respect of two acquitted accused persons.
13. Similarly, I find no force in the second contention of the learned Advocate for the appellant to the extent, that no reliance ought to have been placed on the retracted judicial confession, as there was no independent corroboration available in respect thereof. In this connection statement of P. W. Ahmed, Nekmard against whom no enmity is alleged has corroborated recovery of blood- stained hatchet at the pointation of the appellant as mentioned in judicial confession. Even medical evidence corroborates injuries received by deceased, as mentioned in judicial confession.
In view of this, in my opinion retracted judicial confession in respect of material facts stands corroborated by statements of P. Ws. One of whom is independent P. W. Ahmed and other one is Dr. And as such learned trial Court was fully justified in relying upon the said retracted judicial confession on said basis and on the basis of the statement of P. W. Sultan Ahmed Siddiqui, Civil Judge and F. C. M., Sujawal, who recorded the said confession.
14. However, I find force in the third contention of the learned Advocate for the appellant, that offence committed by appellant, in view of the judicial confession and fact as brought on record would fall under section 304(1), P. P. C. And not under section 302, P. P. C. It is clear from the judicial confession that there was sudden quarrel between the deceased and appellant over cattle trespass and some fight between them, in which appellant gave two hatchet blows to the deceased. It is also obvious from the statements of P. Ws. And F. I. R. That there existed dispute between deceased and appellant over cattle trespass. Complainant in his statement before the learned trial Court stated, that dispute in question took place on the same day, although in F. I. R.
He stated the same to be one day earlier. This statement of complainant lends supports to the version of the appellant as given in his judicial confession and as such the version of the incident as given in judicial confession could be true and consequently it seems that there was a sudden quarrel, in which appellant gave two blows to the deceased and therefore offence committed by appellant, in my opinion would fall under section 304(1), P. P. C. And not under section 302, P. P. C. As held by the learned trial Court.
15. Therefore, while dismissing the above appeal on merits, I alter the conviction of the appellant from 302, P. P. C. To one under section 304(1), P. P. C. And keeping in view the judicial confession of the appellant, I alter the sentence awarded to him from life imprisonment to one for 8 years' R. I.
And maintain the fine of Rs. 5,000, or in default to suffer further R. I. For one year. However, I direct that the benefits of the provisions of section 382-B, Cr. P. C. Be given to the appellant in respect of his period of detention, as under trial prisoner, after due verification, towards his substantive sentence, in addition to all other remissions, to which appellant may be entitled in accordance with rules.