' Appellant abovenamed, being aggrieved by judgment dated 29th March, 1981, of the learned 1st Additional Sessions Judge, Dadu, by which he has been convicted under section 302, P.P.0 and sentenced to suffer imprisonment for life and to pay a fine of Rs,2,000 (Two thousand) or in default to suffer further R.I. For six months, has preferred above appeal, on the following facts and grounds:--
2. The prosecution case as depicted in the F.I.R. Is, that on 11th September,1978 at 11.30 a.m., the complainant Allahditto lodged his F.I.R. At P.S. Sehwan, in which he stated in brief, that he lives in village Arazi and cultivates the land of Rukhtiar 'Aram. That he has three daughters namely Mst.
Sakina, Mst. Haleeman and Mst. Kariman and two sons namely Noor Ahmed and Manzoor Ahmed.
That is both sons are married and his daughters Mst. Sakina and Mst. Haleeman are also married.
Mst. Sakina was married to the appellant Murid and in exchange he has given his sister Mst.
Fatimah Bibi in marriage to Manzoor Ahmed. That about three days prior to Eid of Ramzan Sharif he went to the appellant Murid and his daughter Mst. Sakina at Village Zareen Khan, where Mst. Ak ina told him, that her husband Murid was unnecessarily beating her. The complainant complained to Murid's Zamindar Zareen Pathan, grid was cruel man and asked him to take away his ttled in faisela. He told Zareen Khan, that not allow Mst. Sakina, whereupon Zar en Khan told him, that he would restrain Murid. That Murid also was sitting there with Zareen Khan. That he stayed for the night in the house of Murid and in the following morning he brought his daughter Mst. Sakina to village Arazi. He has also stated in his F.I.R., that on the next day of Eid, Murid came to him at village Arazi and brought Murid's brother from Bhan to Arazi and he asked him to advise his 'brother Murid as he was unnecessarily beating Mst. Sakina. Allahdino advised his brother Murid, who abused Allahdino and went away. That about three days prior to this incident, at about Depari time he was in his house, when Murid gave him call from outside his house and he went out and saw that Wahid Bux s/o Ramzan and an unknown person were with Murid. That Murid told him, if he was leaving Mst. Sakina or was prepared to fight and he told Murid that he should bring his Zamindar Zareen Khan, settle the matter and take away his wife. On this Murid told him that Zareen Khan was lying ill and he had brought two Lasharies from Bhan for faisja. He told Murid that Lasharies were not known to him and that faisla is always made by nekmards. That thereafter Murid and two Lasharies went to the machine of Muhammad Ali, whom he told, that Murid and others were loaffers and were threatening him and also asked Muhammad Ali not to allow then in his mac line, whereupon Muhammad Ali drove them out. He has further stated in his F.I.R., that on the day of the incident in the morning he had taken away a pair of bullocks to his land for ploughing and had asked his family members to bring his meals there. While he was ploughing the land at about 8.00 a.m., his son Noor Ahmad came to him and told him that Murid had come together with him at his house and that he had gone to Bazar to bring tea and on return, when he came to the house, the appellant Murid within his seeing murdered Mst. Sakina, by causing her blow with 'Kat' from sharp side. He also told the complainant, that he challenged Murid and Murid also challenged him. He further told the complainant, that thereafter the appellant Murid ran away, taking away the 'Kat' with him. On receiving such information the complainant came to his house, where his daughter Mst. Kariman also narrated him the same facts. He left his son Noor Ahmad at the guard of the dead body and himself came to P.S. Sehwan, where he lodged his F.I.R.
3. The A.S.I. Abdul Ghafoor incharge P.S. Sehwan recorded his F.I.R Exh.7 and repaired to the Vardat, which was shown to him by the complainant Allahditto, situated in the cattle shed, by the side of the house of the complainant, in village Arazi. He prepared the Mashirnamas of Vardat Exh.13 and inquest report Exh.14 in respect of the dead body of the deceased Mst. Sakina. He despatched the dead body, through P.C. Khan Muhammad, to the M.O. Sehwan for post-mortem examination and report. He recorded 161, Cr.P.C. Statements of the P.Ws. Noor Ahmad, Mst. Kariman, Manzoor and Mst.
Fatimah. He stayed there for the night and on 12th September,1978 he recorded 161, Cr.P.C.
Statements of the P.W. Muhammad Ali. Thereafter he handed over the case papers to the S.H.O.
Naleehango of P.S. Sehwan, who conducted the further investigation.
4. The S.H.O. Naleechango on 11th September,1978 had gone out for petrolling at Manchnur Lake and on his return from Manchur Lake, when at aobut 12.00 Noon, he reached Sabeel, he came to know that there had been murder at Arazi and came to Arazi. On the Vardat he found that A.S.I. Abdul Ghafoor of P.S. Sehwan had already taken up the investigation of the case and had reached the Vardat. A.S.I. Abdul Ghafoor told him on the Vardat, that the appellant after committing then offence run away to his village Zareen Pathan. He took the A.S.I and other subordinate staff with him and went to the Khan, where he reached at night time. 'He village and in the following morning i,e,, '
Murid appeared before him. He arr-blood-stains on the shirt of the appellant. He secured the blood-stained shirt from the appellant and prepared such Mashirnama Exh.27 in presence of Mashirs Muhammad Moosa and Muhammad Saffar. He interrogated the appellant Murid, who, during the course of interrogation volunteered to produce the crime weapon 'Kat' and voluntarily led the police party and the Mashirs to village Arazi and pointed out the blood-stained 'Kat' lying i- n the southern side hedge of the house of the complainant. He secured the blood-stained 'Kat' and prepared such Mashirnama Exh.28, in presence of the same Mashirs. On 17th September,1978 he produced the appellant before the Civil Judge and F.C.M., Sehwan for recording judicial confession.
On the same day he produced the P.Ws. Also before the Civil Judge and F.C.M., Sehwan for recording their, 164 Cr.P.C. Statements. On 26th September,1978, he challaned the appellant in the Court of Civil Judge and F.C.M., Sehwan, who sent up the case to the Court of Sessions for trial.
5. The Court had framed the charge against the appellant Exh.2 and has recorded his formal plea to which he has pleaded not guilty and has claimed to be tried. The prosecution has examined the complainant Allahditto Exh.6 and the P.Ws. Mst. Kariman Exh.8, Noor Ahmed Exh.10, Watio Exh.12, Manzoor Ahmad Exh.17, Mr. Akber Memon Exh.29, Tapedar Jan Muhammad Exh.21, A.S.I. Abdul Ghafoor Exh.23, Khan Muhammad Exh.24, Moossa Khan Exh.26, Saffar Exh.30, Dr. Ghulam Kadir Exh.31 and the SHO Naleechango Exh.33. The APP has given up the P.Ws. Nazir, vide his statement Exh.15 and Muhammad Ali Mst. Fatimah, vide his statement Exh.18. He had closed the prosecution side, vide his statement Exh.35. The statement of the appellant has been recorded as Exh.36, in which he has denied all the allegations and has alleged that the police had come to his village at about 9.00 p.m. And had brought him to P.S. Sehwan over night and kept him at the police station. That he did not know anything about this incident. He had claimed to examine Zareen Khan and Imam All in his defence vide his statement Exh.37. His advocate had submitted an application Exh.38 for calling the Clerk of the Court of the Civil Judge and F.C.M., Sehwan, as defence witness to produce remand report of the police and the same has been allowed. The D.W. Faiz Muhammad, Clerk of the civil Court, Sehwan has been examined at Exh.39. The appellant had given up the other D.Ws. And had closed the defence side vide his Advocate's statement Exh.41.
6. The learned trial Court taken into consideration the evidence adduced before it convicted and sentenced the appellant abovenamed, as herein-before mentioned and consequently the appellant abovenamed, has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
7. The learned Advocate for the appellant in support of the above appeal submitted as under:--
(a) That all PWs of the allege incident were closely related inter se and had enmity with the appellant on account of facts mentioned in F.I.R. And as such no reliance could be placed on their statements, without independent corroboration, which was not at all available in present case, as the learned trial Court did not believe recovery of "Kat" at the instance of the appellant and issued notice to 1.0. For preparing false Mashirnama etc. The 'learned trial Court did not rely upon judicial confession of the appellant. However, on the basis of motive, which the learned trial Court considered as corroborative piece of evidence, convicted the appellant, which was contrary to law laid down by various courts. In support of this contentions the learned Advocate for the appellant relied upon cases reported in PLD 1981 Kar.1 and 1980 SCHR 225.
(a) That according to P.W. Dr.Ghulam Kadir, deceased had only one blow, and he found substance like semen in her vigina, In view of the body of the deceased was found in cattleshed, irvolving present appellant becomes doubtful.
(c) That this is case of no evidence and appellant has been involved due to enmity, which is evident from 4 hours delay in lodging of F.I.R., for which no cogent explanation has been given.
8. In support of above contentions, the learned counsel for the appellant relied upon cases reported in PLD 1965 Kar. 76/81, 1973 SCMR 321 and PLD 1976 SC 695, in addition to above- mentioned two cases.
9. The learned Advocate appearing for the State at the outset submitted, that for above reasons, he was not supporting the impugned judgment.
10. I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court as well as impugned judgment and cases cited by the learned Advocate for the appellant.
11. It is admitted position that P.Ws. Kariman, Noor Muhammad, Allahdino and Nazer Muhammad are closely related to the deceased as well as inter se and there is admitted enmity between complainant side and the appellant, as mentioned in F.I.R., as motive. The learned trial Court discarded recovery of Kat from the pointation of appellant as well as his judicial confession and issued notice to 1.0. For preparing false Mashirnama etc. There was delay of 4 hours in lodging of F.I.R., which it seems, was recorded after start of investigation, in view of the statements of P.Ws Mst.
Kariman, Allahditto and P.W Abdul Ghafoor (1.0). In view of all these facts on record, statements of P.Ws required independent corroboration, which according to learned trial Judge is available on account of motive mentioned in F.I.R. I am afraid, I see no reason to agree with this conclusion of learned trial Court, in view of law laid down by case reported in PLD 1981 Kar.1, with which I am in full agreement, for reasons given in the said judgment.
12. In view of my above conclusions and observations I am of the opinion, that prosecution has failed to establish its case against the appellant beyond reasonable doubt.
13. Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and direct that he be released forthwith, if he is not required in any other case.