ALI NAWAZ BUDHANI, J.-This is an appeal against the judgment and sentence recorded by the Sessions Judge, Sanghar on 22nd December, 1982. The trial Court found the present appellant Yakoob son of Muhammad Laik Jokhio to be guilty under section 302, P. P. C. And sentenced him to death pending confirmation by this Court.
2. By our short order passed on 21st July, 1983 we had allowed the appeal, set aside the conviction and sentence, rejected the reference for confirmation of death sentence and acquitted the appellant for the reasons to be recorded later. Following are the reasons for our aforesaid order.
3. The deceased Karim Bux was murdered on 22nd February, 1981 at about 2.00 a. m. The complainant Mst. Alam Khatoon was the daughter of the deceased and was the wife of the present appellant Yakoob. Mst. Alam Khatoon filed the report with Police on 22nd February, 1981 at about 4.00 a. m. The place of murder is said to be the courtyard i. e, an open place in front of the house of the deceased Karim Bux where he was sleeping on a cot. It was the month of February, the winter season. The murder has taken place in the village of Makranies which is situated near Shahdadpur Railway Station. The appellant was employed as a cabin-man, in the Railway, at Shahdadpur Railway Station. It would be convenient to reproduce the contents of F. I. R. :- "Complaint is that I reside alongwith my children in the house of my father deceased Karim Bux in village Essa Makrani. My husband Muhammad Yaqoob became displeased with me on account of personal reasons and resided with his brothers in village Mir Muhammad Wassan. About one month ago he returned back and was employed in Railway as gangman at Shahdadpur. My husband always resided with his brothers in village Mir Muhammad Wassan on account of annoyance with me and semetime used to visit me. Some time ago my husband Muhammad Yaqoob demanded the hand of Mst. Zeenat from my father deceased Karim Bux for his brother. My father deceased Karim Bux replied him that he had promised to give such hand to Asmatullah son of Ghulam Sarwar Qureshi and will not give this hand for your brother Hakoo. This caused annoyance to my husband and he abused to my father and threatened him that it would be not good for him if he gives the hand to Asmatullah Qureshi. Thereafter my husband always quarrelled with me and my deceased father Karim Bux and used to insist for the hand of girl for his brother Hakoo, but my father refused him to give hand of girl for his brother. On 22nd February, 1981 the marriage of my sister Mst. Zeenat took place with Asmatullah, on the next day my husband Yaqoob told me that my father did not do well by giving the hand of girl to Asmatullah Qureshi and he shall see to it. But she will have to leave this house and will have to live with him with his brothers in village Mir Muhammad Wassan. Now you be ready for going there. I then asked him that since the marriage of my sister Zeenat has taken place now and I would perform some ceremonies therefore we will go after seven days. On that my husband pressed me for going with him but I refused to do so. He became annoyed and asked me that he shall see to it. In case you will not go with me you repeat. At about 9.00 p. m. On 21st February, 1981 we slept away after taking meals. I slept with my husband Muhammad Yaqoob while my father Karim Bux was sleeping at a distance of 3 paces away on the cot. At about 2.00 a. m. I woke up on creaking sound of the cot. I saw my husband got down from the cot and taking an axe lying under the cot. I became fear that he may not kill my father on account of hand of girl. I got down from the cot immediately. I asked him that where he was carrying axe at the odd hours of the night. On that he replied me that your father has not given the hand of Mst. Zeenat for my brother Hakoo, therefore, your father may not be left alive and be killed. On that I entreated him in the name of God to have mercy and do not kill my father but he did not listen it and gave an axe blow with both hands on the head of my father Karim Bux who was asleep. I cried and on account of fear went running inside the 'room and bolted the door from inside and raised cries on which accused gave kicks to door for its open and also abused me. On which! Loudly raised cries. From the 'cheers of the door I saw Hyder son of Naguman Makrani, Mola Bux son of Arz Muhammad Makrani and Mst. Zeebo w/o Lakhano came running giving hakals. They also saw accused Muhammad Yaqoob running away. I then came out of house (room) and saw that my father had axe blow on his head and was bleeding. On account of blow, my father had died at the spot. Then the above-named witnesses has also seen the incident, and I also narrated them the facts who asked me that we are sitting over the dead body and you should go to Police Station, Shahdadpur for report. I report that my husband Muhammad Yaqoob has killed my father in my presence by giving him axe blow. Justice be done."
3. Ahmed Khan Tanwri who was A. S.-I. Posted at Police Station, Shahdadpur registered the F, I. R. On 22nd February, 1981. The said Police Officer visited the scene of offence in presence of mashirs Muhammad Hussain and Muhammad Usman. The dead body of Karim Bux deceased was lying on a cot in the courtyard. One hatchet stained with blood and with broken handle was lying below the cot of the deceased. A mashirnama Exh. 12 was prepared. The blood-stained hatchet and the handle was secured and sealed. An inquest report vide Exh. 13 was prepared and the dead body was sent for post-mortem. The A. S.-I. Further examined witnesses namely Moula Bux, Haider and Mst. Zeboo on the same day. He arrested the appellant on 24th February, 1981 in presence of mashirs Moula Bux and Muhammad Yousuf, Shirt and trouser both blood-stained were secured from his person and a mashirnama Exh. 15 was prepared. The two pieces of clothes were sealed. He further got recorded the statement of Moula Bux, Mst. Zeboo and Haider under section 164, Cr. P. C.
H then handed over the case papers to S. H. O. However On 28th February, 1981 the S.H.O. Got recorded the judicial confession of the appellant. The blood-stained articles were sent to the Chemical Examiner and the report for the same is at Exh.
25. The report reveals that the clothes secured from the appellant were both not blood-stained.
The Investigating Officer who visited the wardat and had arrested the appellant has made averments to the effect that he had produced the appellant before Assistant Commissioner for confession and also before the Civil Judge and F. C. M. For the same purpose but they declined to record the confession of the appellant. However the confession was recorded on 28th February, 1981.
4. The appellant in his statement under section 342, Cr. P. C. Denies to have killed his father-in-law Karim Bux and that all the allegations made by the prosecution are false. He made confession due to coercion of the Police and the confession is neither true nor voluntary. He further states that Mst.
Alam Khatoon was his legally wedded wife and she resided with him at the village of Mir Muhammad Wassan for years and thereafter she left his house and lived with her father because their relationship was strained. He was arrested on 22nd February, 1981 and was wrongly confined at the Police Station. He was produced before A. C. M., Shahdadpur on 26th February, 1981 for confession but he made no confession. He was threatened that his mother would be brought and insulted. Under these circumstances he has made confessional statement.
5. Mr. Allahdino Memon appeared and made submissions on behalf of the appellant and Mr. Murtaza Hussain appeared for the State. The submissions made by the learned counsel for the appellant are that the crime of the murder of the deceased is an unwitnessed crime and it took place at 2.00 a. m. In the dark night and the ocular testimony is not worth the credibility. In order to assess and weigh the evidence we may in the first instance refer to the mashirnama of the wardat which was prepared in the morning of the same day. The mashirnama is at Exh, 12 which is signed by mashir Muhammad Usman. The dead body was lying in the courtyard of the house of the deceased. The deceased who was aged about 60 years, bore an injury on head, was lying on a cot.
A hatchet with broken handle was lying on the side of the cot of the deceased. To the south of the wardat at a distance of four paces there was an open street and a Katcha wall. There is another Katcha wall on the west of the vardat which is 41 feet high. On the east side in the courtyard at a distance of three paces a vacant cot was lying. On the eastern side at a distance of 12 paces a Katcha wall existed which was 10 feet high near which date trees and lemon trees were standing. It is significant to note that in the mashirnama which is the earliest document prepared there is no mention of any electric light or any other light. It is clear, therefore, that there was no arrangement of electric light either in the courtyard or in the room of the house on the northern side. There was no striking marks of the hatchet on the door where the complainant Alam Khatoon was biding at the time of the incident. The hatchet was lying immediately near the cot of the deceased. Another cot which is seen in the early hours of the morning was a vacant cot at a distance of three paces and it had no bedding on it whatsoever. In the light of these circumstances we shall proceed to examine the evidence of the complainant in the first instance and then that of Mst. Zeboo and Haider in the second instance.
6. Alam Khatoon the complainant at Exh. 5 has given the narration of the incident deposing that she and the appellant slept together on one cot at the relevant time and that she woke up on the creaking sound of the cot. She saw the appellant having taken an axe and that he gave blows of the axe to her father Karim Bux who was sleeping in the same courtyard. She has further deposed that she entered in a room and bolted the doors from inside and raised cries. The appellant then struck two or three blows of axe on the door where Mst. Alam Khatoon was hiding. On her cries witnesses namely Haider, Moula Bux and Mst. Zeboo came to the vardat. On seeing them the appellant made good his escape. She in her evidence has significantly and substantially changed from her F. I. R. For instance in the F. I. R. She has mentioned that she had a dialogue with the appellant when the appellant took up hatchet. She asked the appellant as to where he was taking the hatchet at odd hour of the night, whereupon the appellant replied that he was annoyed with her father and therefore he would kill him. She further entreated not to kill her father but any way he gave blow to her father. She ran-immediately inside the room and bolted the door from inside. The appellant gave kicks to the door and from small openings of the flanks of the door she found Haider and Mst. Zeboo coming to the wardat whereupon the appellant ran away. The entire dialogue of the appellant and Alam Khatoon complainant is omitted in her deposition and in her deposition she has stated that the appellant gave hatchet blows to the door of the room.
1.17 is to be noted that in the mashirnama no marks of hatchet blows were found on the door by the mashir or the A. S.-I. Who had prepared the mashirnama and seen the wardat. In the cross- examination she has admitted that it was winter season and the house or room of P. W. Zeboo was adjoining to their house within the same court of her father's house. She has further admitted that the Police made inquiry from her at 9.00 a. m or 10-00 a. m. She has further admitted that the Police took one or two thumb-impressions on the papers in the morning.
7. The evidence of the complainant Mst. Alam Khatoon appears to be discrepant as her narration of the incident suffer from serious drawbacks. In fact Mst. Zeboo who is her aunt came on cries to the vardat but the complainant while answering a question in cross-examination, states that Mst.
Zeboo was already inside the room where the complainant ran and bolted the door. She has contradicted herself in the very cross-examination deviating from her examination-in-chief. Her averment as to the hatchet blows on the door is neither borne out by the mashirnama which is prepared in the morning nor by the F. I. R. Which she was filed before the Police. Before the Police she had stated that appellant gave kicks to the door. One ominous revelation which is very significant in order to assess her evidence is that for the first time the Police made inquiries from her at about 9 a. m. Or 10 a. m. And that one or two right thumb-impressions were taken on certain papers by the Police. The learned counsel for the appellant has argued that the Police had come to the wardat and thereafter had drawn the contents of F. I. R. Making Alam Khatoon as an eye- witness. In fact according to the arguments of the learned counsel for the appellant none had seen the incident being committed in the darkness of night at 2.00 a. m. The admission by the complainant in this regard strengthens and gives weight to the arguments of the learned counsel for the appellant. It is winter and the month is February and it is quite cold and there was no purpose for any one to sleep outside in the courtyard and specially for the women-folk who would rather sleep within four walls of the house. The averment of the complainant that she slept with her husband on the night of the incident on the same cot is not substantially borne out from the facts which are noted subsequently when the Police came and saw the vardat. One vacant cot is said to be lying on the eastern side and it had no bedding whatsoever.
8. We shall then proceed to examine the evidence of Mst. Zeboo the aunt of the complainant who is Makrani by caste. Mst. Zeboo Exh. 7 at the very beginning of her deposition has stated that she cannot say when Alam Khatoon came to reside with her parents and that also she cannot say when Mst. Zeenat the sister of the complainant was married to one Asmatullah Qureshi. She was sleeping in her room and she woke up on the cries of Alam Khatoon who had bolted the door of her (Zeboo's) room. It was Alam Khatoon who told her that appellant was striking hatchet blows on the door and also that appellant was killing her father. Thereafter P. W. Haider Bux came there. Mst.
Zeboo and Alam Khatoon did not open the door but saw through the creaks of the door that appellant was killing Karim Bux, father of the complainant. There was a tube light and electric bulb in her room. Throughout the electric bulbs were burning both inside the courtyard and inside the room of Zeboo P. W. Haider Bux was threatened by the appellant who escaped. Mst. Zeboo further deposes that entire village came on cries but she cannot gave the names of the villagers. She found one Nazroo, Muhammad Bux and Bashir standing at the door,
9. The evidence of Mst. Zeboo is in conflict with the evidence of Mst. Alam Khatoon who in her examination-in-chief as well as in F. I. R. Has stated that Mst. Zeboo came on the cries. Mst. Alam Khatoon then contradicted herself that she went inside the room where Mst. Zeboo was already there. She bolted the door and then cried. Mst. Alam Khatoon and Mst. Zeboo have contradicted each other and the evidence of Mst. Zeboo must, therefore, outright be rejected as he is the most unreliable witness and from the nature of her evidence it appears that she has spoken nothing but falsehood. She even did not know as to when Alam Khatoon came to reside with her father and she even does not know as to when Mst. Zeenat, sister of the complainant was married to one Asmatullah Qureshi. If the marriage has taken place only a few days prior to the incident, then Mst.
Zeboo must have known about the marriage. Mst. Zeboo did not open the door till the appellant made good his escape. For the first time electric light is introduced in the prosecution story and the evidence of this witness is belied by both Alam Khatoon and the Police investigation who did not find any electric light in the said house or the courtyard. Mst. Zeboo further is confronted with her statement under section 164, Cr. P. C. Wherein it is not borne out that she was with Mst. Alam Khatoon in the same room. In fact she had come on the %aka's'.
10. Then there is evidence of Haider Bux who states that he was attracted to the wardat by the cries of the complainant. He saw the appellant standing there with an axe in his hand. He found him striking the blows of the axe on the door. The appellant threatened him therefore he did not go near him. The appellant thereafter made good his escape. In cross-examination he admits that the terms between the appellant and M. Alam Khatoon were strained and Mst. Alam Khatoon came to reside with her father two or three years before this incident. The deceased was the husband of his wife's sister. He is confronted with his statement under section 164, Cr. P. C. Where the names of Alam Khatoon or Zeboo are not given by him. In the cross-examination he has added that he saw Mst. Alam Khatoon. Mst. Zeboo and mother of Alam Khatoon at vardat.
11. The evidence of Haider Bux is in conflict with the evidence of Mst. Alam Khatoon and Mst. Zeboo as such. According to Alam Khatoon her mother was not inside the room, whereas this witness has stated that the mother of Alam Khatoon was also available there in the room. He saw the appellant striking blows of the hatchet on the door but the mash irnama of vardat has found no marks of hatchet blows on the door and the hatchet was lying below the cot of the deceased. Besides he has made no mention of the witnesses in his statement under section 164, Cr. P. C. He has further developed the prosecution evidence by introducing the electricity and the electric light in the house. The evidence of this c witness, therefore, being both discrepant and in conflict with the prosecution case, is not reliable as such no reliance could be placed on his evidence.
12. P. W. Muhammad Idrees is the Tapedar who has prepared the sketch of vardat. He deposes that there is only one room in front of the courtyard where the murder took place. There is no "Kot" in which several houses including the house of Mst. Zeboo are situated. In the cross-examination he has cleared that the house in question belongs to Karim Bux and not to Mst. Zeboo. Electric pole was situated 70 feet away from the place of murder towards the western side. Lie makes no mention of any electric light inside the house or outside the house of the deceased.
13. To sum up the evidence of these three eye-witnesses, it is clear that the incident took place at the dead of the night at 2.00 a.m. And it was a dark night. Within the house or outside the courtyard there is no electric light. Both F. I. R. And tht evidence of Mst. Alam Khatoon do not mention about electric light. In fact no mention is made in respect of light of any type even of hurricane lamp.
Although Mst. Zeboo and Haider Bux have introduced the factum of electric light inside the house of deceased but this is not borne out from the mashirnama of vardat and as such the evidence of Mst. Zeboo and Haider Bux is falsified. There is entrance of the court yard into the main guilt. The house of Haider Bux is on the southern side while the house of Moula Bux Makrani is on the northern side quite at a distance. The evidence of Alam Khatoon is to be taken with a pinch of salt as she had strained relations with her husband and lived separately from him. Whatever she has stated in the F. I. R. Is not borne out by the other witnesses namely Haider Bux and Mst. Zeboo, specially when she gives the motive of the murder. The witnesses Mst. Zeboo and Haider Bux hardly know that on the marriage of Mst. Zeenat the appellant was annoyed. From the evidence of Alam Khatoon one believes that in all probability the F. I. R. Is recorded in the morning time when the right thumb impressions of Mst. Alam Khatoon were taken by the Police at about 9.00 a.m. Or 10. a. m. On the whole as discussed above the evidence of three eyewitnesses is shaky, discrepant and not worth the credit. The Tapedar has shown electric pole of municipality at a distance of 70 feet from the wardat which is surrounded by the high walls around the courtyard, a such there could hardly be any light to identify the culprit. As we have seen the evidence and analysed it, in all probability the incident took place in the darkness of night and the witnesses such as Alam Khatoon, Zeboo and Haider Bux have not seen the assailant.
14. We now advert to the confessional statement made by the appellant. Learned trial Court has not accepted the confessional statement made by the appellant and has excluded the same from consideration while recording the judgment. Even the counsel for the State in this appeal argued that the confessional statement is in conflict with the prosecution evidence and hence it has no evidentiary value. The appellant was arrested on 24th February, 1981. He was produced before the Magistrate on 28th February, 1981 after a delay of four days although a number of Magistrates were available at Shahadpur. The A. S.-1. Has explained that he produced the appellant before Assistant Commissioner who refused to record the confession of the appellant and then he produced the appellant before the Civil Judge and F. C. M. Shahdadpur who also refused to record the confession. What were the reasons for refusing to record the confession are not known but it is presumed that the appellant was not prepared to make any confession. The delay of four days in recording confession generates an idea that most probably the appellant was not prepared to make confession and the confession was not voluntary and true and that it was recorded under coercion which the appellant himself, while giving his statement under section 342, Cr. P. C. Before the trial Court, has stated. Besides the Magistrate himself did not conform to the rules of recording confessional statement and had not asked the appellant relevant and important questions which were to be asked from an accused person while making confession. For instance he did not disclose that be was a Magistrate and that the accused was not bound to make the confession and that he would not be handed over to the police after recording the confession. It is important to note that the Magistrate has not given any reason as to how confession was voluntary and true under section 164 (3). Since the confessio is not relied upon by the learned trial Court and also by the learned counsel for the State appearing in this appeal, the confessional statement as such need not be considered. In this behalf cases of Abdullah v. State and Ramzan v. State are referred.
15. What is left is only the corroboratory pieces of evidence namely the arrest of the appellant and the blood-stained trouser and shirt of the appellant being secured from his person. The Chemical Examiner has mentioned in his report that both these clothes were not bloodstained and that there was no blood available on these two clothes. Thus this fact also does not corroborate the ocular testimony. The appellant was arrested from a cabin where he was employed in Shahdadpur Railway Station. He was arrested on 24th February, 1981 and the incident took place on 22nd February, 1981 and why the police did not lay hands upon the appellant for two or three days though he was available at the Railway Station performing his job as usual is not explained. It has been argued by the learned counsel for the appellant that police did not suspect the appellant being the real culprit and for two or three days they were investigating the matter. The arguments of the learned counsel do have certain weight but anyhow it is significant that the appellant was not arrested immediately after recording of F. I. R. If at all the F. I. R. Was recorded at the time that is shown f. e. On 22nd February, 1981 at 4.00 a. m.1 2
16. In view of above facts and circumstances we believe that the ocular testimony is tainted, discrepant contradictory in nature and is not worth accepting. The confessional statement is rejected by the learned trial Court and the learned counsel for the State has argued that it is not worth relying, hence we also exclude the same from consideration. The other corroboratory piece of evidence namely that of securing blood-stained clothes is falsified by the report of the Chemical Examiner and therefore it is not worth accepting. We are, therefore, bound to give the benefit of doubt to the appellant and hereby acquit them. In the result appeal is allowed and the reference for confirmation of death sentence is rejected. 1969 P Cr. L J 1954 PLD 1966 Kar. 244