The appellant above named, being aggrieved by judgment dated 31st March, 1980 of the Additional Sessions Judge, Dadu at Kotri in Sessions case No. 5/79 by which the appellant has been convicted under sections 302 and 309, P. P. C. And sentenced to suffer life imprisonment and also sentenced to pay a fine of Rs. 2,000 or in default of payment to suffer further R. I. For six months anti was also further ordered to pay a sum of Rs. 5,000 under section 544-A, Cr.P.C. As compensation to the heirs of deceased, Mst. Hajran, has preferred the above jail appeal on the following facts and grounds :-
2. At 12 noon on 3-9-1978, Walid Ali son of Khurshid Ali, by caste Syed, r/o. House No. 896, Shahi Bazar Kotri appeared at Police Station Kotri and lodged the following report "My father Khurshid Ali is a mechanic in WAPDA at Jamshoro. He leaves for his duty daily at 6-30 a.m. Leaving behind in the house me, my mother Mst. Hajra and my five younger sisters. Uncle Rashid also lives with us in this house. At about 10 a.m. Today, my mother had asked me to bring meat from the market. As I got ready try bring the meat, my uncle asked my younger sisters to go to town to wear the bangles.- I and my sisters cane together to the market, My mother and my uncle Rashid remained in the house. After taking meat I returned home at about 11-20 a.m. I opened the outer door, went inside and saw that in the front side my mother was lying on a cot of 'Nawaz'. She was bleeding. My uncle Rashid was also lying adjacent to her on the same cot. He too was bleeding. I made enquiry from my uncle, but he did not give any reply. Then I saw my mother carefully and found her dead.
She was breathless. There--after I went out of the house and narrated the entire facts of the incident to my cousin Shaukat Ali. 1 asked him to stand at the door of my house and not to allow any one to go inside the house. Posting him there I went to my Phopha (paternal-uncle) Allah Bux at his shop in Shabi Bazar and informed him about the incident. He advised me to inform the police. I have, therefore, come to report. It is not known, who had killed my mother and uncle,"
3. After recording the above mentioned information in the Roznamcha, A. S. H. O. Atta Muhammad went to the place of occurrence alongwith Wajid Ali, There he found the dead body of Mst. Hajra lying on a cot. She had injuries on her person. Besides her appellant Rashid Ali was also lying unconscious. His throat was cut. Lot of blood was lying there. The S. H. O. Secured one blood- stained hatchet, one blood-stained Chhuri and two letters from the place of incident, in presence of Mashir Abdullah and Ghulam Ali. He also secured the artificial leg and the identity card of the appellant from there. He secured the blood from the place of incident and, sealed it on the spot. He prepared such Mashirnama of Vardat (Exh. 8-A). He prepared the Mashirnama of injuries of the appellant (Exh. 8-B) and arrested the appellant, under Mashirnama (Exh. 8-C) in presence of the same Mashirs. Thereafter he sent the appellant to L. M. C. Hospital for examination, treatment and certificate. He prepared the inquest report (Exh. 8-D) and: sent the dead body of Mst. Hajra to L. M.
C. Hospital for examination, treatment and certificate. He prepared the inquest report (Exh. 8-D) and sent the dead body 6f Mst. Hajra to L. M. C. Hospital Hyderabad through P. C. Wahid Bux, for post-mortem examination and report. He examined P. Ws. Khurshid Ali, Sharafat, Allah box and Shaukat Ali on the spot on the same day. After that he came back to the police, station where, on behalf of State, he lodged the following F. I. R. 1-30 p.m. On the same day i.e. 3-9-1978. ---On behalf of the State report is lodged that today 1, A. S. I. Muhammad Kassim, P. C. Liaquat. Ali No. 398, P. C. Wahid Bux B. No. 1115, vide entry No. 1.3 dated 3-9-19'78, went alongwith Syed Wajid Ali son of Khurshid Ali, when we reached near Shahi Bazar, we took up Mashirs Abdullah son of Laldin Pathan and Ghulam Ali son of Jumo Shore Residents of Kotri and went with them into house No.
896. In the larger room a Niwar cot is lying, on which dead body of Mst. Hajra wife of Khurshid Ali is lying on its flank. On the same cot adjacent to Mst. Hajra injured Rashid Ali is lying. He was seen. His throat was cut, He is not in his senses. He has been immediately referred to the Medical Officer L. M.
C. Hospital, Hyderabad for treatment. There were hatchet injuries on the person of Mst. Hajra At the head of the cot two letters are lying. There were opened and read. These are in Urdu. One letter is addressed to the S. H. O., Kotri. It reads as under :-- .
"I have been in love with my Bhabhi (brother's wife) since 1958. We love each other very much, but unfortunately she was married with my brother. These 20 years we passed very comfortably, but later on passions heightened and we wished to become one. Brother go, suspicious and wanted me to turn out of the house, but I did not go out. It happened on 23-5-1978. Since then till today we have beer meeting with each other, but after that she i.e. Bhabhi deceived me and went back on her promise and deceived me. I cannot live without her, hence I am taking away my love with me.
None is to be blamed Murderer and the murdered one both finished, hence nothing be sai6 to any one and both of us he buried adjacently, `Khuda Hafiz.'
Rashid Ali.
(Signed in English)
Time 10.25 day Sunday".
The F. I. R. Continues.
The other letter is in the name of his brother Sharafat Ali. It is written in Urdu. As Rashid Ali has committed murder by giving sharp side hatchet blows to Mst. Hajra for her infidelity and has attempted to commit suicide by cutting his throat with a sharp-edged chhuri. After necessary investigation. I have come back to the Police Station and on behalf of the State I register a cast against accused Rashid Ali under Ss. 302 and 309, P. P. C."
The other letter which has been referred to by the S. H. O. In his above--mentioned formal F. I. R, runs as under :- ---Brother mine. Asalam Alekum I am putting an end to my love today for ever. After it you look after the sister. Let her have do trouble. Bonds worth Rs. 300 a sum of Rs. 50 and gold of my share are lying with "Phupi" (maternal-aunt). Get prepared for sister ornaments out of this gold. A sum of Rs. 100 is with Nisar. Take it from him: Do educate Papoo and take care of him. My watch you may take. Father had awarded it to me on passing Matriculation Examn. Salam to Appa. Salam to the Uncle, Phupi and Phupaji. Forgive me for mistake if any, committed by me. Khurshid is responsible for all these things. Ask Wajid if he is happy now or not. `Salam' only. Blessings and love for Medi.
Pappoo and Sajdah. Tell Khursheed the house had fallen vacant, and now live comfortably and be merry.---
4. In support of its case the prosecution examined the following witnesses:
(1) Wajid Ali (informant) Exh. 5.
(2) Khursheed Ali (P. W.) Exh 6.
(3) Allah Bux (P. W.) Exh. 7 (4)Abdullah (Mashie) Exh. 8.
(5) Syed Pir Ali Shah (C. J. And F. C. M.) Exh. 9
(6) Ali Nawaz (Tapedar) Exh. 11.
(7) Dr. Amanullah (M. O.) Exh. 13.
(8) Dr. Muhammad Siddiq Moghal (M.C.) Exh. 14.
(9) Atta Muhammad (I.O.) Exh. 15.
(10) Ghulam Nabi (Mashir) Exh. 16.
(11) Wahid Bux (Corpse bearer) Exh. 17.
5. The APP closed the prosecution side vide his statement as Exh. 18.
6. In his statement under section 342, Cr. P. C. The appellant denied the prosecution allegations levelled against him. He denied to have killed Mst. Hajra or to have attempted to commit suicide.
He also denied to have written the two letters in question or to have made a confession before the Civil Judge and F. C. M. Kotri. He further stated, that prior to the day of the incident he had been residing in the house of his brother Khursheed Ali for about 15 years. That at about 10 a.m. On the day of the incident, he was lying in his room, when he heard cries of Mst. Hajra coming from the courtyard of the house. That he at once saw two muffed faced men pulling her, but struggling with them she reached his room. That he immediately got up to pick up his artificial leg, but one of those two culprits caught him by his hair and felled him down and gagged his mouth with his hard.
That he tried to wriggle out, but the other culprit, who had a chriuri in his hand, plied it on his throat and cut it. That he then lost his senses and came to in the hospital. That he was brought to the court for confession, but he was not able to speak and his throat was bandaged. That the policeman and the S. H. O. Were talking with each other. That he asked him to put his signature on a paper which he did. He further stated that he was innocent and the allegations against him were false. That be was a teacher and he belonged to a respectable profession.
6. The learned Advocate for the appellant submitted that this is unwitnessed crime, and as such appellant's conviction which is, based on his retracted confession, without independent corroboration, which is not at all available, cannot be sustained. In addition to this no reliance can be placed on the alleged two letters of the appellant, as appellant has denied the said letters and as prosecution failed to examine handwriting expert, these letters cannot be used for purposes of corroboration of the retracted confes--sion, as done by the learned trial Court.
7. The learned counsel appearing for the State submitted, that he was not supporting the conviction of the appellant, as same is based on his retracted confession only, without any independent corroborative evidence.
8. I halve carefully considered, the above submissions made by the learned Advocates before me, and I have gone through the R & P of the learned trial Court as well as through the impugned judgment.
9. It is admitted position, that there are no eye-witnesses of the incident. Therefore prosecution case solely rests on the retracted judicial confession of the appellant, and on the basis of the letters alleged to have been written by the appellant, soon after he has said to have murdered Me.
Hajra and alleged to have attempted to commit suicide thereafter.
10. Appellant before the learned trial court denied the fact of making confession and consequently retracted the same, and also denied that Article 6 and Article 7, the two letters in. Question were in his handwriting in his statement under section 342, Cr. P. C. Before the learned trial court.
11. Prosecution in spite of appellant's denial about having written the above-mentioned two letters, did not think fit to send them to handwriting expert and obtain his opinion and examine him.
12. P. W. 4 Abdullah, the Mashir of recovery of above letters at Vardat has given go-bye to prosecution case and as such was declared hostile. H also denied his L. T. I. Of Exh. 8-A, 8-B, 8-C, Mashirnama prepared by Police. P. W. 10 Ghulam Nabi, the second Mashir of allege recovery of these two letters from Vardat has also not supported prosecution at all, in the same way as P. W. 4.
13. P. W. 5 Pir Ali Shah, Civil Judge & F. C. M. Who recorded the alleged confession of the appellant stated before the learned trial Court, that he had not asked the appellant, if he was in fit condition to make confession nor any medical certificate about his fitness to make confession was produced before him. He also admitted that appellant had bandage round his neck, when he was produced before him.
14. P. W. Dr. Muhammad Siddiq, who bad first examined the appellant, in his statement before the court stated, that appellant had incised wound 2--" x --" cutting the trachea (i.e. Larynx), on the front of the neck. In his cross-examination this witness stated, that such injury could be caused if appellant was over--powered by one or two persons and such injury would take two to three weeks to heal and he was not is position to say whether appellant could speak, after such injury, after the lapse of two or three weeks. In the. Face of this evidence of Dr. Muhammad Siddiq, and in the absence of any certificate of fitness, that appellant on the day when he made confession was in position to speak the statement of the appellant, that he was unable to speak, when be was brought for confession and his signature was taken by S. H. O. On some paper, creates doubt about the judicial confession in question, as evidence of P. W. 5 Pir Ali Shah. Civil Judge and F. C. M. Who recorded the said confession does not inspire confidence, if it is read as whole.
15. It may further lie mentioned, that P. W. 9 Atta Muhammad S.H.O.'s statement about recovery of the alleged two letters as given in Court is in 'complete contradiction of the manner in which there letters are alleged to have been recovered, as mentioned in F. I. R. Exh. 15-A, which was also lodged by this P. W.
16. Keeping in view all the above facts on record, in my opinion prosecution has failed to establish its case against the present appellant beyond reasonable doubt and as such I allow the appeal and acquit the appellant, by giving him benefit of doubt and set aside his conviction and sentences awarded to him and direct, that appellant be released forthwith if he is not required in any other case.