1. ' Appellant above-named, being aggrieved by judgment, dated 27th November, 1978 of learned Sessions Judge, Thatta, in Sessions Case No, 36 of 1977, by which appellant has been convicted under section 324/109, P. P. C. And sentenced to suffer R. I. For 3 years and to pay fine of Rs, 1,000 or in default to suffer further R. I. For 6 months and has also been convicted under section 323, P. P. C.
2. And sentenced to suffer R. I. For one year, both sentences to run concurrently, has preferred the above appeal, on the following facts and grounds :- ' The facts relating to the incident, briefly stated, are that the deceased Shaikh Abdul Latif, his nephew Muhammad Unis and a relation Abdul Kadir, all-the three belong to Karachi City, set out from Karachi in the morning of 5th day of June, 1977, for picnic at Thatta side. They were interested in fish catch. They selected a spot on the bank of K. B. Feeder, Sakro Branch, off Thatta Town, for catching fish. They could not catch until mid-day. They shifted to another spot down stream of the same canal. They were surrounded there by two shephered boys, one armed with a hatchet and another carrying a lathi, and asked to surrender to them their fishing kit. On their refusal to part with the fishing kit, the boy armed with the hatchet struck Shaikh Abdul Latif on his head and laid him to the ground. Abdul Kadir ventured to intervene and both the . Boys struck him by means of the weapons they were armed with. Seeing their fate, Muhammad Unis took to his heals by the bank of the canal and escaped the violence. A beldar on the canal by name Noor Muhammad happened to reach there while patrolling his beat, and witnessed the incident from a short distance. One another person by name Leemoon, who was at his nearby fields, was attracted by cries and he also reached there and saw the culprits running away. Both Noor Muhammad and Limoon reached the spot. Shaikh Abdul Latif had succumed to the injury by that time. Abdul Kadir narrated the incident to them. They advised him to make report of the incident to Thatta Police. He lodged report at Thatta Police Station, after covering a distance of about 3 miles, at about 4 p.m. The crime was registered by the Incharge P. S. Khurshid Ahmed A. S. I. Thereafter, he proceeded to the wardat and inspected it in presence of Muhammad Suleman and Bachayo mashirs. He secured the corpse of Abdul Latif, prepared its mashirnama and inquest report, and despatched it to Civil Hospital, Thatta, through Maqbool Ahmed P. C. For its post-mortem examination. He then recorded statement of Muhammad Unis, who had returned to the wardat before his reaching there. He also recorded statement of Noor Muhammad, who was available there. By that time, the S. H.
0. Thatta, Muhammad Yousif Mughal, reached there and took up further investigation. He recorded statement of witnesses Limoon and Amin at a nearby village, known as Motio Shodo village. He arrested co-accused Siddique and appellant Sheedu on the next day viz. 6th June, 1977. He observed injuries on the person of appellant Sheedu. He also observed blood stains on the shirt and shalwar of appellant Sheedu and secured them and packed them under seal. The appellant 'Sheedu produced before him a lathi from his house. Appellant Sheedu was examined by a Duty Medical Officer at Civil Hospital, Thatta. Appellant and co-accused were put to identification test, on 7th June, 1977, in presence of Mukhtiarkar and F. C. M. Thatta, through Abdul Kadir and Muhammad Unis. Both the witnesses picked out both the appellant as well as co-accused.
3. Appellant Sheedu made judicial confession before the Mukhaarkar and F. C. M. Thatta. P. Ws. Noor Muhammad and Limoon made 164, Cr. P. C. Statements on 13th June, 1977. The appellant and co- accused were challaned. Same offence punishable under section 302, P. P. C. Read with section 34, P. P. C. Both the co-accused and appellant had further been charged with the offences punishable under section 324 read with section 34, P. P: C. They had pleaded not guilty.
4. ' Prosecution had examined Maqbool Ahmed P.C. (P.W. 1), Muhammad Umar Tapedar (P. W. 2), Abdul Kadir complainant (P. W. 3), Muhammad Unis (P. W. 4), Noor Muhammad (P. W. 5), Limoon (P.
5. W. 6), Khursheed Ahmed A. S. I. P. (P. W. 7), Suleman mashir (P. W. 8), Dr. Moinuddin (P. W. 9), Muhammad Yousif S. H.
0. (P. W. 10) aid the Magistrate Shahshad Ali Rajput (P. W. 11).
6. ' Both co-accused and appellant had denied, that they had assaulted the deceased Abdul Latif and the complainant Abdul Kadir. Accused Siddik alias Ali Nawaz had alleged false implication due to displeasure of the police against his maternal-uncle Shafi Muhammad. He had stated that he was a student in the High School Thatta, during those days.. Appellant Sheedu has also made denial of existence of injuries on his person at the time of his arrest and recovery from him of a lathi and blood-stained clothes. He had alleged that injuries were caused to him by police. He had also denied that he had made judicial confession. He had alleged false implication at the instance of the police.
7. ' Co-accused Siddik alias Ali Nawaz has examined two witnesses in defence namely Abdul Aziz (D.
8. W. 1) and Dr. Zaferul Hague (D. W. 2) regarding his age. Appellant Sheedu has not adduced any evidence in defence.
9. ' The learned trial Court taking into consideration the evidence adduced before it, while acquitting co-accused Siddik, convicted appellant above-named as hereinbefore mentioned and consequently appellant has filed the above appeal on the grounds mentioned in memo. Of appeal.
10. ' The learned Advocate for the appellant in support of the above appeal submitted as under :-
(a) That learned trial Court in spite of disbelieving ocular evidence, convicted appellant on the basis of his incorroborated retracted judicial confession and identification test and alleged injuries on his person, contrary to law laid down by superior Courts. In support of this contention the learned counsel for appellant relied upon cases reported in PLD 1968 Quetta 29, PLD 1977 Kar. 760, PLD 1961 Kar. 728, 1969 P Cr. L J 1317 and PLD 1965 Lah. 288 and submitted that conviction of the.
11. Appellant cannot be maintained.
12. ' The learned Advocate appearing for the State on the other hand submitted, that he was fully supporting the impugned judgment for reasons and conclusions arrived at by learned trial Court.
13. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as impugned judgment and cases cited by the learned Advocate for the appellant.
14. It is clear from the impugned judgment, that the learned trial Court did not accept the ocular evidence as truthful, but on the basis of th retracted judicial confession and on the basis of identification test and alleged injuries on the person of the appellant has convicted the appellant. It is well-settled law, that a retracted judicial confession cannot be relied upon without independent corroboration. It may further be noted, that appellant and co-accused were mixed with only 8 dummies in the identification test and consequently no reliance can be placed on such identification test, in view of the ratio laid down for such test by various judgments. As far as the alleged injuries on the person of the appellant are concerned, the appellant in his statement under section 342, Cr. P. C. Has stated, that these injuries were given to him by police in order to corroborate the prosecution case. It may further be noted, that injury caused to the deceased were not attributed to present appellant and consequently prosecution ought to have led evidence for applicability of section 109, P. P. C., but in my opinion there is no such evidence on record. In view of these facts the cases cited by the learned Advocate for the appellant are fully applicable to the present case, with which I am in full agreement for the reasons given therein and therefore, in my opinion prosecution has failed to establish its case beyond reasonable doubt.
15. ' 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 discharge the bail bonds executed by the appellant in the above appeal.