1. ' Appellant abovenamed, being aggrieved by judgment, dated 25th April, 1979 of the learned Sessions Judge, Tharparkar, Mirpurkhas, in Sessions Case No,96 of 1978, by which appellant was convicted under section 302, P.P.C. And sentenced to suffer imprisonment for life and to pay compensation of Rs,3,000 to the heirs of the deceased and in default to suffer further R.I. For six months, had preferred the above appeal, originally as jail appeal, on the following facts and grounds:-Briefly stated the prosecution story is, that complainant Allah Rakhio is father-in-law of deceased Sadiq and used to reside at the distance of one Block from him. P.W. Azim is brother of the deceased, while P.W. Soomar is son of Azim. Both of them used to reside in separate houses, in the same enclosure, in which the deceased used to reside. The appellant were sons of the complainant's sister and used to reside at village Haji Malhar, which was at a distance of one and half mile from his village. On 27th July, 1974 at about 3 a.m., the incident is said to have taken place.
2. At that time complainant Allah Rakhio was also in the house of the deceased, as he had reached there at 1 a.m, because he had to take turn of water for his lands which was to start at 4 a.m. He, the deceased and P.Ws. Azim and Soomar were sleeping on separate cots in the same "courtyard. The complainant woke up on the barking of the dogs. P.Ws. Azim and Soomar also woke up.
3. Complainant flashed torch light towards the cot of the deceased. They saw appellant Luqman and co-accused Sultan armed with hatchets standing towards the head side of the deceased's cot.
4. Sultan incited Luqman to kill the deceased, as he was their enemy. On this Luqman gave hatchet blow with sharp side on the neCk of the deceased. Complainant Allah Rakhio and P.Ws. Azim and Soomar raised cries. Both the appellant made good their escape. The complainant and P.Ws.
5. Chased the appellant for some distance,but on being threatened by them gave up the pursuit.
6. They came near deceased Sadiq and found that he had died. His neck was cut through and through and was attached with the body only with a flap of skin. The motive of the crime is said to be illicit terms between deceased Sadiq and the wife of appellant Luqman. On that account Luqman had divorced his wife 10-11 months before the incident. Appellant Luqman had been approaching th Bradari to pursuade the deceased to compensate him and had been issuing threats of taking revenge. Complainant Allah Rakhio went to Sanghar Poli; e Station and lodged F.I.R. At 7-30 a.m. The F.I.R. Was taken down y Arbab All Additional S.H.O. Sanghar. He immediately went to the scene of offence and inspected the same. He found the dead body of Sadiq lying on a cot. There was a pool of blood on the ground. He scratiched and secured the blood and sealed the same. He found four cots besides that of the deceased lying in the courtyard. He also noticed that tie cotton' crop of complainant was half an Acre away from the scene of of ence and water was there in it. The complainant produced his torch before him which was in working order. He then prepared inquest report and sent the dead body for post-mortem examination. He then made enquiries from Azim, Faizoo, Soomar, Mst. Jannat and Abdul Majeed. On 30th July, 1974 he made enquiries from Mst. Bachai. He then arrested appellant Luqman from the Otak of Haji Malhar at 5 a.m. He interro ated the appellant, who made discovery of blood-stained hatchet from unde bedding lying in his house. There was blood on handle as well as on blade of the hatchet. He then produced the appellant before Mukhtiarkar and F.C.M., Sinjhoro and got his judicial confession recorded. On 2nd Aug st, 1974 he arrested co-accused Sultan and interrogated him and secured a hatchet at his instance. On 7th October, 1974 he got 164, statements of the witnesses recorded. The stained articles were sent to the Chemical Analyser, whose report is in the affirmative. The case was then challaned, as shown above.
7. ' The appellant pleaded not guilty to the charge and claimed to be tried. In his statement under section 342. Cr.P.C. The appellant had denied all the prosecution allegations. .He has denied to have committed the murder of Luqman. The appellant had denied to have produced hatchet.
8. Appellant has retracted from his confession and has alleged that the same was extorted from him by force and coercion.. Appellant Luqman has denied the motive. He has alleged, that he is not even married. Hence the question of his having divorced his wife on account of her having illicit connections with the deceased does not arise. He has also denied, that Mst. Mariam is his daughter. The appellant as well as co-accused had not examined any defence witness.
9. ' The learned trial Court taking into consideration the evidence adduced before it, while acquitting the co-accused Sultan, convicted and sentenced the appellant abovenamed, as hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in the memo, of appeal.
10. ' The learned Advocate for the appellant in support of above appeal submitted as under:-
(a) That statement of P.Ws. Required independent corroboration in view of admitted enmity, which is not at all available in present case.
(b) That prosecution reliance on statements of P.Ws., who are also inimical to appellant, is no corroboration in eyes of law. In support of this learned counsel for appellant relied upon cases reported in 1983 SCMR 1 and 1980 SCM R 225.
(c) Retracted confession of the appellant cannot be used as corroborative evidence, without independent corroboration, and furthermore the learned Magistrate, who recorded the said judicial confession admitted, that he did not tell the appellant that he would not be remanded back in police custody and as such it ought to be ignored on both these grounds. In support of this the learned Advocate for appellant relied upon cases reported in PLD 1967 Kar.
11. 612.
(d) That P.Ws. Were not believed in case of acquitted co-accused and as such appellant cannot be convicted on the statements of such P.Ws
(e) That identification is alleged to be on torch light, but this fact is not mentioned in F.I.R.
12. ' In view of above submissions, the learned counsel for appellant stated, that prosecution has failed to establish its case beyond reasonable doubt against the appellant.
13. ' The learned counsel for State at the outset submitted that he was not supporting the impugned judgment, in view of above submissions made by the learned counsel, as in his opinion prosecution has failed to establish its case beyond reasonable doubt against the appellant.
14. ' I have carefully considered the above submissions made by the learned Advocate before me and have gone through R & P of the learned trial Court and impugned judgment as well as cases cited by the learned Advocate for the appellant.
15. ' Prosecution case rests upon the statement of P.W.3. Allah Rakhio, P.W.4, Muhammad Azim and P.W.8 Soomar, who are closely related to the deceased and enmity is alleged against them by the appellant. Prosecution for purposes of corroboration relied upon the statement of P.W.5. Majnu, Mashir of alleged recoveries, who is also related to deceased and enmity is also alleged against him.
16. ' P.W.1 Muhammad Saleh, is Mukhtiarkar, who recorded the judicial confession of appellant. This witness in his cross-examination admitted that he did not tell the appellant, that he would not be remanded to police custody and also did not record all necessary warning in confession itself, though it was necessary. It may be noted that this Magistrate was not of Malhar Wassan, which is in Sanghar Taluka, as he was posted at Sinjhoro. Explanation given by him for recording the said confession was, that police told him that all F.C.Ms. Of Sanghar were on leave on the said date, and as such he recorded the said confession. In view of this it would be unsafe to rely on such retracted confession, on the basis of statement of P.W.1.
17. ' As far as recovery are concerned, the prosecution has relied upon the statement of P.W.5 Majnoo, who is son-in-law of the deceased. He further stated, that the other Mashir was Abdul Majid. He also stated, that his sister was married to complainant Allah Rakhio. He further stated that appellant Luqman was arrested on the shop of Haji Malhar and the appellant resides in the village Malhar Wassan which is sufficiently big village and people of different castes reside in that village.
18. In his cross he stated that police party went to the house of appellant Luqman and appellant Luqman came out of his house and was arrested. At that very time the police asked him about the hatchet and the appellant went inside his house and took out the hatchet from the beddings and the Mashirnamas of the arrest and the recovery were made on the spot, in the house of the appellant Luqman. However, in his statement before the learned committal Court, and in his examination-in-chief he has given different places of arrest of the appellant and as far as preparation of Mashirnamas are concerned, he had stated before the committal Court, that the same were prepared at the Otak of Malhar. His evidence does not inspire confidence and on account of contradictions in his statements recorded before the learned trial Court and before the committal Court, which were brought on record and on account of the fact that he is closely related to the deceased, it would be unsafe to rely on his statement for said recoveries, specially as 1.0. Has given no explanation, why he did not pick up independent and respectable Mashirs for the arrest and recoveries of the appellant from the village Malhar, which is fairly big village and thus violated the mandatory provisions of section 103, Cr.P.C. In view of this conclusion in my opinion the recoveries in question cannot be used as corroborative piece of evidence against the appellant.
19. ' In view of my above conclusions about the alleged judicial confession and the recoveries, prosecution case now solely rests upon statements . P.W.3. Allah Rakhio and P.W.4 Muhammad Azim and P.W.8 Sumar the alleged eye-witnesses. All these alleged three eye-witnesses are very closely related to the deceased and on account of the enmity mentioned in the F.I.R. As admitted by P.W.8 in his cross-examination in which he has stated, that their relations with appellant Luqman were strained for last one year before the incident, on account of appellant's ex-wife alleged to be in toe with deceased. In view of this I agree with the contention of the learned Advocate for the appellant, that the statement of these three eye-witnesses required independent corroboration, for which the prosecution was relying on the judicial confession of the appellant as well as on recoveries, both of which I have discarded for the reasons hereinabove given. P.W.7 Abdul Majeed does not in any way corroborate the statement of eye-witnesses regarding the incident in question and his evidence is only confined to the enmity which the appellant had with the deceased, on account of his ex-wife.
20. ' Keeping in view my above discussions on prosecution evidence on D record, in my opinion prosecution has failed to establish its case against the appellant, beyond reasonable doubt.
21. ' Therefore, allow the above appeal and set aside conviction and E sentences awarded to the appellant and acquit him by giving him benefit of doubt.