1. ' Appellants abovenamed, being aggrieved by judgment dated 30th April, 1979 of the learned Addl.
2. Sessions Judge, Sanghar, in Session Case No,205/76, whereby appellants have been convicted under section 302, P.P.C. Read with section 34, P.P.C. And sentenced to suffer imprisonment for life and to pay fine of Rs, 1,000 each or in default to suffer further R.I. For 12 years each, have preferred the above appeal, on the following facts and grounds:- ' The complainant Fakir Muhammad lodged F.I.R. At P.S.Sinjhoro on 21st June, 1975 at 4.30 p.m.
3. Alleging, that offence took place on the same date at about 12-30 p.m. While the distance between the Vardat and P.S. Is shown to be about 7 miles. As per F.I.R., the complainant has alleged, that on the day of incident, he was going to village of P.W. Ilyas on the tonga, who met him near the Jamrau Canal alongwith P.W. Khanoo. It is added that when all of them were talking to each other, all the three appellants viz. Dhani Bux, Muhammad Saleh and Photo, crossed the canal through the nearby Mori. All the three appellants are said to have been armed with hatchets. The appellants are said to have gone to a landhi i,e, a small hut where deceased Tindoo was sleeping after leaving his goats under the nearby tree. The witnesses, then heard cries and abuses being given to the deceased and then deceased was attacked through hatchet from sharp side. The witnesses were threatened not to come nearer when they tried so, else they will also be murdered. The appellants after .Killing Tindoo went away alongwith their hatchets. The witnesses when reached near, found Tindoo dead due to injuries. The complainant has also disclosed motive of the murder by adding, that about 14/15 years ago brother of appellant Dhani Bux by name Dhingano Naroo alongwith one Sawai Chandio others had come to the village of deceased Tindoo for committing dacoity and in the encounter Dhinga Garoo was killed and deceased Tindoo had even lodged F.I.R. Against Dhingano and others. According to the complainant the appellants attacked and killed Tindoo as revenge.
4. ' The F.I.R. Was recorded by Munawar Ahmarl A.S.I., who then proceeded to Vardat alongwith the police party companied by the accomplainant. He prepared Mashirnama of Vardat after securing blood-stained earth, pair of shoes of the deceased, a silken towel having stains of blood. He also prepared inquest report of the dead body and sent it to the medical officer Sinjhoro for post- mortem examination, through F.C. Nazar Muhammad. The 1.0. Then went to the village of appellants, but could not find them. On 22-6-1975, the 1.0. Got spy information, that appellants have escaped to Khadro side and arrested all the three appellants from Bus Stand Khadro. He secured a shirt and loin-cloth from appellant Dhani Bux, having washed stains of blood. He also secured a shirt and loin-cloth from appellant Muhammad Saleh and a shirt and loin-cloth of third appellant Photo, having stains like blood. All the three appellants are said to have voluntarily lead the police to their houses and produced the hatchets, which were secured in presence of Mashirs. On 23-6- 1975, appellant Dhani Bux gave judicial confession before Mukhtiarkar and F.C.M. Sinjhoro and the police also got 164, Cr.P.C. Statements recorded from the same Court of P.Ws Ilyas and Khan Muhammad. The appellants were ultimately challaned to stand trial.
5. ' The prosecution in support of its case examined (1) Nazar Muhammad P.C. Exh.7, who had taken the dead body to the Sinjhoro for post-mortem examination. (2) Tapedar Muhammad Bachal Exh.
6. 8 who produced sketch of Vardat Exh.9. (3) Complainant Fakir Muhammad Exh. 10, who produced F.I.R. Exh.11 and Extract from lower Court deposition Exh. 12, (4) Mr. Muhammad Salik who was Mukhtiarkar & F.C.M. Sinjhoro and had recorded judicial confession of appellant Dhani Bux Exh.13, he produced original confession of appellant Dhani Bux Exh.14 and original letter of police Exh.15, (5)
7. P.W. Ilyas Exh.16 who produced his lower Court deposition Exh. P.17, (6) P.W. Khan Muhammad Exh.18 who produced his original 164 Cr.P.C. Statement Exh.19 and lower Court deposition Exh. 20, (7)
8. Mashir Muhammad Exh.21 who produced Mashirnama of Vardat Exh.22, Inquest report Exh.23, Mashirnama of arrest of appellant Dhani Bux Exh.24, Mashirnama of arrest of appellant Saleh Exh.25, Mashirnama of arrest of appellant Photo Exh.26, Mashirnama of securing of hatchet from appellant Dhani Bux Exh.27, Mashirnama of securing of hatchet from appellant Saleh Exh.28, Mashirnama of securing of hatchet from appellant Photo Exh. 29, (8) A.S.I. Munawar Ahmed Exh.30.
9. He produced copy of letter addressed to Mukhtiarkar and F.C.M.Sinjhoro for recording the judicial confession of appellant Dhani Bux Exh.31 and 164, Cr.P.C. Statement of witnesses. The learned A.P.P.
10. Moved an application Exh.32 for bringing on the record deposition of Doctor Habib Ahmed, recorded by Civil Judge and F.C.M.Sanghar. The same was allowed and deposition of Doctor Exhibited as Exh.33, with post-mortem notes Exh.34 and Chemical Analyser report Exh.35 was also brought on the record, vide application of A.P.P. Exh.35. The prosecution then closed his side.
11. ' The appellants in their statements Exhs.38, 39 and 40 denied the allegations against them to be false and concocted. The appellant Dhani Bux also denied to have made judicial confession voluntarily. According to him his judicial confession was not voluntary, but he was compelled by the police who called his sister, his brother, his brother's wife at the police station. He has produced true copy of challan showing, that one Muhammad son of Ramzan Khaskheli was involved in a case under section 14, Arms Act. The appellants did not examine any witness in defence while statement Exh.42.
12. ' The learned trial Court taking into consideration, the evidence adduced before it, convicted and sentenced the appellants abovenamed as hereinbefore mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in the memo, of appeal. The learned Advocate for the appellants in support of the above appeal submitted as under:-
(a) That all P.Ws are closely related and in view of admitted enmity and on account of alleged three eye-witnesses being chance witnesses, no reliance can be placed on them, without independent corroboration which is not available in the present case.Ln support of this conteption the learned Advocate for the appellants relied upon cases reported in PLD 1959 Pesh. 25; 1983 SCMR 130; PLD 1983 SC 47 and PLD 1981 Kar.
13. 1.
(b) P.W. Muhammad (Mashir of alleged recoveries) is relative of complainant party and in addition to this on his own admission he is stock witness of the police and as such no reliance can be placed on his statement at all. In addition to this P.W. Stated before learned trial Court, that second Mashir was not there, but his signatures were taken later on. In addition to this the learned counsel submitted, that according to this P.W., articles were not sealed in his presence. In support of these contentions the learned Advocate for the appellants relied upon case reported in PLD 1975 SC 187.
(c) That no reliance can be placed on retracted judicial confession of appellant Dhani Bux in view of the statement of Magistrate, who recorded the said confession, that he had some connections with complainant's side. In support of this contention, the learned Advocate for the Appellants relied upon cases PLD 1964 SC 813 and PLD 1960 Kar.
14. 674.
15. ' The learned Advocate for the State on the other hand submitted, that he fully supports the impugned judgment as mere relationship is no ground to discard the statement of P.Ws and alleged enmity is 15 years old. He further submitted that recoveries have also been corroborated by 1.0., who is independent witness and no enmity is alleged against him.
16. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the record and proceedings of the learned trial Court as well as impugned judgment and cases cited by the learned Advocate for the appellants.
17. ' It is admitted position, that all three eye-witnesses are closely related to deceased and there is old enmity between the parties. In addition to this, all these three P.Ws. Are chance witnesses of the alleged occurrence and there are material contradictions in their statements inter se. P.W. Fakir Muhammad, stated before learned trial Court, that he did not go in his tonga to police station and left tonga at Vardat. However, neither tonga nor bullocks were available on Vardat, when police reached. P.W. Fakir Muhammad stated that within a minute or two of his arrival appellants passed by them and killed deceased, whereas according to P.W. Ilyas, in his cross-examination stated, that appellants murdered deceased after 14 hours of the arrival of P.W. Fakir Muhammad. This P.W. Ilyas in his cross-examination admitted, that they had seen appellants from back and suspected them to be present appellants. According to this P.W. Fakir Muhammad and P.W. Khan also suspected present appellants as assailants. He further stated that he saw appellants at police station on next day of the incident at 9-00 a.m. Whereas according to 1.0. And Mashirs of arrest, appellants were arrested no doubt on next day, but at 1.00 p.m. Appellant Dhani Bux has stated, that he gave judicial confession under duress and has retracted from the same. P.W. Muhammad Saleh, Mukhtiarkar, who recorded alleged judicial confession of appellant Dhani Bux, admitted his connections with Muhammad All Mari, against whom appellants have alleged enmity over lands. I have gone through statement of P.W. Muhammad Saleh Mukhtiarkar. It does not inspire confidence. In any case retracted judicial confession requires independent corroboration, which is not at all available in present case, in my opinion. Recovery Mashir on his own admission has acted as Mashir in two other cases and according to him second Mashir was not there, at the time of alleged arrest of appellants and his signatures were taken later on by 1.0. In the face of such statement of P.W.
18. Muhammad Mashir, no reliance can be placed on such recoveries in my opinion, specially as hatchets etc. Were not sealed in presence of Mashir. The cases cited by the learned Advocate for appellants are fully applicable to this case in my opinion and as such I see great force in the contentions of the learned Advocate for the appellants, that prosecution has failed to establish its case beyond reasonable doubt against all the appellants. I find no force in the contention of the learned Advocate for the State.
19. ' Therefore, I allow the above appeal and set aside convictions of the appellants and sentences awarded to them and acquit them by giving benefit of doubt and discharge the bail bonds executed by the appellants in above appeal.