' This appeal is directed against the judgment, dated 25th February, 1979 passed by the Sessions Judge, Tharparkar, Mirpurkhas whereby he convicted the appellant Majnoon under section 304 (II), P. P. C. And sentenced him to suffer S. I. For two years and further directed him to pay compensation to the heirs of the deceased amounting to Rs, 4,000 or in default to undergo further S. I. For six months.
' Briefly stated that facts of the prosecution case are that on 8th March, 1978 Aloo, took buffaloes of Mehran Nagrio from the village and went in the jungle for grazing. Gullu went near Attarai, just to supply water to the land of his Zamindar Abdul Karim where Saleh and Kando Mangrio were already standing at some distance. At about 5-30 p. m. They heard cries and went there. They found Khanor and Latif were holding the arms of Aloo whereas Majnoon was giving him lathi blows.
Majnoon told them that Aloo had committed intercourse with his sheep hence they are beating him. After a shortwhile Aloo died. Guloo who is son of deceased went and informed his nekmard Mehran Mahgrio. On the next day i. e, 9th March, 1978. Gullu went, and lodged report under section 302/34, P. P. C. At Police Station Umer Kot at 8-30 a.m. S. I. P. Muhammad Ehsan recorded his F. I. R.
And proceeded to the scene of offence which was about 10 miles from the Police Station. He found dead body of deceased Aloo lying having injuries of blunt weapon. He prepared mashirnama of scene of offence and sent dead body for post-mortem xamination to Medical Officer Umerkot. He recorded the statement of osecution witnesses Mehran. Wall Muhammad, Kando and Muhammad Saleh. On 10th March, 1978 the sheep produced by Abdul Rahim was sent to Veterinary Surgeon Umerkot for necessary examination and certificate. On 16th March, 1978 appellant Majnoon was arrested. He produced lathi from his house which was secured by the S. H.
0. On the same day i. e. 16th March. 1978 appellant Majnoon made confession before Mukhtiarkar and F. C. M. Umerkot and on 2nd March, 1978, challan of the case was submitted in the Court.
' The charge under section 302/34, P. P. C. Was framed against the appellant Majnoon, Khanoo and Latif. They pleaded not guilty.
' Prosecution examined 10 witnesses during the trial. P. W. 1, Dr. Muhammad Ayoob, P. W. 2, Guloo complainant, P. W. 3, Kando eyewitness, P. W. 4, Muhammad Hashim Mukhtiarkar who recorded the confession of appellant Majnoon, P. W. 5, Wali Muhammad and P. W. 6, Muhammad Saleh are eye- witness P. W. 7, Lakhano, P. W. 8, Abdul Salam S. H.
0. P. W. 9, Pir Bux and P. W. 10, Muhammad Ehsan. The appellant in their statement under section 342, Cr. P. C. Have denied the allegations of the prosecution and appellant Majnoon stated that he was arrested by police on 9th March, 1978 and not he was produced for confession on 16th March, 1978 and was beaten by the S. H.
0. Who threatened him to give confession.
' The evidence in this case consist of the following particulars :-
1. Ocular evidence.
2. Confession.
3. Extra-Judicial confession.
4. Motive.
5. Recovery of lathi from the appellant Majnoon.
' The learned trial Judge had acquitted co-accused Khanoo and Latif by giving them benefit of doubt whereas appellant has been convicted under section 304, (II) P. P. C. As stated above.
' Complainant Guloo Exh. 10 has corroborated his F. I. R. And stated that as the time of incident he was working in his lands while Wali Muhammad was grazing his buffaloes. He heard cries of his father and went running towards that direction when Muhammad Saleh Kando and Urs were also came running. When they reached they saw accused Khanoo Latif were holding his father by his arms while Majnoon was giving lathi blows on his head. On enquiries Majnoo told them that Aloo had committed intercourse with his sheep, therefore, he was being beaten. He further stated that his father went unconscious and after a while he died. Guloo went and informed his Zamindar Mehran Mangrio who directed him to lodge the report. He could not go to the Police Station, during that night as he had no conveyance. On next day morning at 9 a.m. He lodged report at Umerkot Police Station which he produced as Exh.
11. He has admitted near the. Scene of offence there are houses of Isso Mangrio, Mehran Mangrio and there is village of Isso Mangrio where people of different castes reside. He did not see any sheep near the scene of offence. He further deposed that he came back at wardat from village of Mehran thereafter passed night on the dead body of his father. P. W. Kando, Saleh and Wali Muhammad and his caste-fellows were present there for the whole night. He saw Majnoo giving tattily blows on the head of his father. He has stated that all these three accused (including appellant Majnoon) were arrested by police at sunset time on the same day on which the F. I. R.
Was lodged. P. W. Kando Exh. 12, has corroborated the version given by complainant Guloo and stated that on the day of incident he heard cries when he was standing in the land of Allah Rakhio alongwith Muhammad Sadiq. They went running. They saw Guloo and Wall Muhammad were also going towards that direction. They found Latif and Khanoo holding Aloo by arms while Majnoon was giving him lathi blows on his head. He has also deposed that Guloo did not return for the whole night and next morning at about 8 a.m. He came there with Police. He in his cross stated that Saleh is his Marot. Wail Muhammad is caste-fellow. He has admitted that the police arrested the accused on 4 or 5 p.m. On the day when his statement was recorded and that Mehran had come to the scene of offence. His evidence further goes that Guloo had taken Mehran to the Police Station. He admits that Mehran and acquitted accused Latif had some litigations. He deposed that Khanoo and Majnoon are brothers and Latif is related to him. P. W. Wail Muhammad Exh. 15, has stated that on the day of incident he was grazing buffaloes while complainant Guloo was watering his land when they heard cries. They went running and saw Latif and Khanoo holding the deceased Aloo when Majnoon was giving him blows, by lathi. He has also stated that P. W. Saleh and Kando followed him and they saw the incident. Aloo died there and on enquiry appellant Majoon told them that Aloo committed intercourse with the sheep and, therefore, they had given him beating.
The police came there with the complainant at about 8 a.m. And made enquiries from him. In cross-examination he has stated that accused were arrested by the Police on the next day in his presence and dead body was removed by the Police on the same night. P. W. Saleh Exh. 16, has corroborated the version of complainant and other witnesses and stated that he saw appellant Majnoo giving lathi blows to Aloo on his bead and he did not enquire from Majnoo nor did Guloo.
According to him police came on the next day at about 10 a.m. And made enquiries from him. He has admitted that be accompanied, complainant to Police Station at 6 a.m. On the next day.
Medical Officer Dr. Muhammad Ayoob Exh.
7. Has conducted post-mortem on the body of deceased Aloo and found following injuries :-
(1) Contusion 3" x 1" on the head right side parietto-temporal region.
(2) Contusion C Abrasion 3" x 2" on the tip of left-shoulder.
(3) Contusion 7" x 1" in the back left side above scapula.
(4) Contusion 15" x 1" on the back starting from lower and of right scapula.
(5) Contusion 12" X 1" on the back right side vertical starting from right end of injury No,
3. Upto right renal area. At the lower part there is swelling.
(6) Contusion C abrasion i" x 1' on the lateral side of right arm in the middle.
(7) Abrasion 1" x 1/2" on the left testicle."
' The injuries according to the doctor appeared to have been caused by blunt and hard substance such as lathi. The death was caused due to shock and haemorrhage consequent upon the injuries mentioned above. Mr. Muhammad Hashim Exh. 13 has stated that he was Mukhtiarkar and F. C. M., Umerkot on 16th March, 1978. On that day at about 11-25 a.m. Appellant Majnoon was produced for confession. He after observing all the formalities recorded the confession of the appellant. P. W.
Lakhano is a mashri of scene of offence which was in the land near water-course of Abdul Karim Palli, where dead body was lying. He has produced fnashirnama Exh. 18, and inquest report as Exh.
19. He has further stated that on 16th March, 1978 police arrested the appellant from his house and prepared mashirnama which he produced as Exh.
20. He has also mashir of recovery of lathi at the pointation of the appellant he produced mashirnama as Exh.
21. P. W. Amir Bux is a corpse-bearer. He took the dead body of deceased Aloo to Medical Officer and after post-mortem he handed over the dead body to the heirs of the deceased. Muhammad Ehsan S. H.
0. Has stated that on 9th March, 1978 after recording the report of complainant Guloo, he conducted the investigation as stated above.
' I have heard Mr. Muhammad Ismail Memon, Advocate for the appellant and Mr. S. Murtaza Hussain, Advocate for the Stzte.
' Now I like to discuss various pieces of prosecution evidence. I. Confession.
' Investigation Officer and mashir have stated that appellant was arrested on 16th March, 1978 whereas complainant Guloo. P.W. Wali Muhammad, Kando have deposed before the learned trial Court that appellant Majnoon was arrested on the next day of the incident.
I have no reason to disbelieve the version given by these three witnesses about arrest of the appellant. In these circumstances appellant has remained in police custody without any remand for more than 7 days. In these circumstances evidence of confession cannot be used against the appellant when there is no explanation for his detention for such a long period with police.
' On the point of motive and extra-judicial confession I have only to say that learned Sessions Judge has not put any question to appellant Majnoon while recording his statement under section 342, Cr. P. C Therefore, in my opinion this evidence cannot be used when appellant has not been asked any question on above pieces of evidence. The lathi alleged to have been produced by the appellant is not blood-stained, therefore, it cannot be considered as a corroboration.
' Now there remains eye-witness including the complainant. Prosecution case is that this incident took place on 8th March, 1978 at 5-30 p.m. And Police Station is at a distance of 9 miles but the report has been lodged on next day i,e, 9th March, 1978 at 8-30 a.m. The explanation of complainant that conveyance was not available cannot be accepted. There are also material contradictions in evidence of witnesses. It is unnatural that he did not return to the dead body of his father for the whole night is stated by P.W. Kando Exh.
12. On this point there is in consistency between evidence of complainant and eye-witnesses. This kind of delay is factual to the prosecution. The learned Sessions Judge has also not believed the evidence of these eye-witnesses against acquitted co-accused Khanoo and Latif, therefore, he acquitted them. There are also material contradictions in the evidence of these eye-witnesses.
Furthermore, their presence at the time of incident is also doubtful. The appellant has alleged enmity with Mehran and has stated above. Prosecution witnesses are closely related' to Mehran Khan. In these circumstances there seems to be no convincing evidence against the appellant. He is entitled to get benefit of doubt.
' His appeal is, therefore, allowed. He is on bail. His bail bonds stands cancelled. .