1. ' Appellant above-named being aggrieved by judgment, dated 10th September, 1983 of the learned Sessions Judge Badin, Sessions Case No, 61 of 1981 by which appellant has been convicted under section 304 (I), P. P. C. And sentenced to suffer R. I. For five years and to pay fine of Rs, 1,000 or in default to suffer further R. I. For six months, has preferred the appeal, on the following facts and grounds :- ' The prosecution case is that on 28th September, 1981 at about 5-00 p. m. P. W. Gul Hasan went to the house of the First informant Kadir Bux and informed him that appellant had murdered his wife Mst. Sakani. He further informed him that P. W. Ghulam Hassain who was with him at that time had also witnessed the incident. P. Ws. Gul Hasan and Ghulam Hussain had also brought the dead body of Mst. Sakani. It may be mentioned that the first informant Kadir Bux is the paternal-uncle of deceased Mst. Sakani. P. Ws. Gul Hasan and Ghulam Hassan had heard shrieks of Mst. Sakani when they were cutting grass for the cattle in the land of one Payaro Jat. They went running to the uncultivated land of Muhammad Suleman Advocate and found the appellant giving blows with danda to his wife deceased Mst. Sakani. The witnesses had challenged him, but the appellant told them off. Appellant gave two more blows in their presence to Mst. Sakani. The witnesses however succeeded in saving Mst. Sakani from the appellant and brought her to the house of the first informant. Mst. Sakani had expired by that time.
2. ' This was the case of the prosecution at the initial stage. It was put forward in the F. I. R. 'and the 164, Cr. P. C. Statements of the two eyewitnesses P. Ws. Gul Hasan and Ghulam Hassain. Both P. Ws. Gul Hasan and Ghulam Hussain resiled from their statements recorded under section 164, Cr. P. C. By Mukhtiarkar and F. C. M., Tando Bago. They have not supported the prosecution in their depositions before the Sessions Court.
3. ' The first informant Kadir Bux left the dead body of Mst. Sakani in the care of the above witnesses and went to Police Post Kadhan to lodge the report. The report was recorded by A. S.-I. Kauro Khan.
4. The first informant had reached the police post at about 8-30 p. m. A. S.-I. Kauro Khan recorded the F. I. R. In the, daily diary, which he later on sent to S. H.
0. Badin for its incorporation in 154, Cr. P. C. Book.
5. ' The A. S.-I. After recording the F. I. R. Went to the vardat which was situated in the land of Mr. Muhammad Sulleman, Advocate. He secured the blood-stained earth from the verdant in presence of mashirs P. Ws. Ramzan and prepared the mashirnama (Exh. 17) which was attested by the above mashirs. He then went to the house of the complainant and found Mst. Sakani lying supine on the ground. She had injuries on her body. The A. S -I. Prepared the inquest report in regard to the injuries on Mst. Sakani, which was also attested by the above mashirs. He sent the dead body of Mst. Sakani to Civil Hospital, Badin for post-mortem examination. He stayed for the night at the vardat and arrested the appellant from his house in the morning. The clothes worn by the appellant were blood-stained. He secured these under the mashirnama (Exh. 20), which was attested by the above mashirs. The clothes were sealed in a parcel before the mashirs. The appellant was however arrested, vide mashirnama (Exh. 19). The appellant after his arrest led the police to a jungle, which was situated near the vardat and produced before them a blood-stained danda from the bushes nearby. This was secured under mash irnama (Exh. 21) Muhammad Israr, the S. H.
0. Of P. S. Badin meanwhile reached the vardat and the A. S.-I. Handed over the case papers to him for further investigation.
6. ' The prosecution in support of its case in all examined 9 witnesses.
7. ' Learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant above-named as herein. Before mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in memo. Of appeal.
8. ' The learned Advocate for the appellant in support of the above appeal submitted as under
(a) That P. W. 2 Gul Hasan and P. W. 3 Ghulam Hussain, the only alleged eye-witnesses of the incident did not support prosecution case and were declared hostile by the prosecution, but their statements before the learned trial Court were not at all shaken in their cross-examination, but on the contrary their statements supported the stand of appellant that his judicial confession was not voluntarily.
(b) P. W. Abdul Ghaffar, Mukhtiarkar and F. C. M., Tando Bago did not comply with the formalities required for recording of judicial confession and further certain printed parts of confession are blank, in respect of date and time of the arrest of the appellant, and consequently on this ground also said confession ought to have been ignored by the learned trial Court.
(c) That prosecution has given no explanation at all, why appellant was not produced at Badin for his judicial confession, but taken to Tando Bago about 17 miles away, though appellant was arrested at Badin, where incident in fact is alleged to have taken place.
(d) That appellant had retracted from the alleged judicial confession and as such it required independent corroboration which in the present case is not at all available on record.
(e) That learned trial Court has relied on alleged recoveries of bloodstained clothes and danda from appellant as corroborative piece of evidence, on the basis of the statement of P. W. 6 Ramzan, who in fact did not support prosecution case as well as on the statement of P. W. 1 Kadir Bux (Complainant) although P. W. 2 and P. W. 3 have not supported the statement of P. W. 1 Karim Bux.
9. Even alleged blood-stained clothes and danda were not shown to P. W. 6 Ramzan before the learned trial Court and as such these articles were not at all identified by P. W. 6, Learned counsel for appellant relied upon cases reported in PLD 1961 Lah. 167, PLD 1979 Pesh. 215, PLD 1978 Pesh.
10. 1116, and PLD 1977 Kar. 760 as well as on PLD 1961 Kar. 728 and 1968 P Cr. L J 1940 and submitted that prosecution has failed to establish its case beyond reasonable doubt.
11. ' The learned counsel appearing for the State at the outset submitted, that he was not supporting the impugned judgment, due to above-mentioned facts on record. He further submitted that P. W.
12. 6 Ramzan and other co-mashir were not resident of the locality, from where appellant was arrested at Badin.
13. ' I have carefully considered the above submissions made by the learned counsel before me and have gone through the Record and Proceedings of the learned trial Court and the impugned judgment as well as the cases cited by the learned Advocate for the appellant.
14. It is an admitted position, that only alleged eye-witnesses of the incident namely P. W. 2 Gul Hasan and P. W. 3 Ghulam Hussain did not support the prosecution case at all and were declared hostile. I further find, that their statements before the learned trial Court were not shaken at all in their cross-examination by the learned State counsel. In addition to this the appellant retracted from his judicial confession and stated that the same was secured from him under coercion. This stand of the appellant has been fully corroborated by the statement of P. W. 2 Gul Hasan and P. W. 3 Ghulam Hussain and consequently no reliance can be placed on such judicial confession, without independent corroboration. It may be noted that appellant was arrested near Badin, but his alleged judicial confession was not recorded before any Magistrate in Badin, but he was taken 17 miles away to Tando Bago, where it is alleged that he gave a judicial confession. Prosecution has given no explanation for this admitted fact on record, why the alleged confession of the appellant was not recorded at Badin and the presumption deduced by the learned trial Court in this connection is not at all warranted by evidence on record. The learned trial Court for purposes of corroboration of the alleged judicial confession has relied upon the statement of P. W. 6 Ramzan and P. W. 1 Kadir Bux, The learned trial Court failed to appreciate that P. W. 6 Ramzan has not fully supported the prosecution case and furthermore the statement of P. W. 1 Kadir Bux is based on the information received by him from P. W. 2 Gul Hasan and P. W. 3 Ghulam Hussain, who before the learned trial Court have not supported the P. W. 1 Kadir Bux in this connection. It may further be noted, that neither the blood-stained clothes of the appellant nor the danda allegedly recovered from the possession of the appellant, was shown to P. W. 6 Ramzan nor the said P. W. 6 Ramzan identified the said articles before the learned trial Court. In view of these facts on record, the cases cited by the learned Advocate for the appellant are fully applicable to the facts of the present case and in my opinion the prosecution has failed to establish its case beyond reasonable doubt.
15. ' Therefore, I allow the above appeal and set aside convictions of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and direct that he may be released forthwith, if not required in any other case.