1. ' Z. C. VALIANI, J.-The State being aggrieved by judgment, dated 9th January, 1980 of the learned IIIrd Additional Sessions Judge, Hyderabad, in Sessions Case No, 697/76, by which respondents were acquitted under section 302/34 for murder of Muhammad Umar, has filed the above acquittal appeal, on the following facts and grounds :- ' The prosecution story in brief is that deceased Muhammad Umer was younger brother of complainant Muhammad Hanif Khanzada, Umer used to reside with his mother in a separate house, alongwith younger brothers Muhammad Hanif and Abdul Majid. On or about 24th June, 1973 the wife and children of complainant Muhammad Hanif had gone to Umar's house to do the household work, as their mother living with Umar had gone to Sakrand to see relatives, alongwith her younger son Hameed. On the day of incident the complainant had gone to his fields, wherefrom he returned at 10-30 a. m. And went to the house of his brother Umar, where he found his wife and children alongwith Umar. After chitchat with Umar the complainant went to Bazar to purchase the chain for his goat, wherefrom he returned at 12-30 noon. On his return he found the outer gate of the house of Umar open, when he went inside the room, he found Umar dead in pool of blood. Neck of Uipar was cut, pyjama of Umar was down and his tasticles were also cut. He did not see anybody there, but found finger prints with blood on the handle of the pump and the outer door. He saw one tehmat, one shirt and pne shalwar and bed sheet of his brother Umar were also missing. He came out of the house and raised cries, which attracted people including Shamsdin, Bundu Khan and others. Then he went and lodged the F. I. R. This prosecution story, the complainant has narrated in his deposition. Police came there and saw vardat and found the footprints and after one week police got the clothes identified.
2. ' The prosecution has led the evidence of Doctor Ghulam Qadir (Exh. 6), Exh. 10 complainant Muhammad Haneef, Exh. 12 P. W. Shafi Muhammad, Exh. 14 P. W. Abdul Aziz Tapedar, Exh. 16 P. W.
3. Muhammad Ishaq, Exh. 18 P. W. Khairuddin, Exh. 20, A. P. P. Has given up P. W. Bundoo. Exh. 21 is the deposition of P. W. Muhammad Sadiq Khoso and Exh. 32 is the deposition of Mr. Ali Bux Kaka, retired S. D. M. A ala, Exh. 26 is the deposition of mashir Haji Ghulam Muhammad and Exh. 23 mashir Hail Noor Muhammad Exh. 35 is the deposition of Imdad Ali D. S. P. Intelligence Bureau, Hyderabad and Exh. 39 is the deposition of S. H.
0. Abdul Rasool.
4. ' Exhibit 40 is the statement of A. P. P. Whereby he had closed the side of the prosecution. Exh. 41 is the statement of A. P. P., Whereby he had given up Mst. Khalda and Gal Zaman. Exhibits 41 and 42 are the statements of respondents under section 342, Cr. P. C. Wherein they have denied the allegation and they have stated that they are innocent. Exh. 44 is the statement of defence counsel, whereby he had stated that the respondents do not wish to lead any evidence in their defence.
5. ' The learned trial Court taking into consideration the evidence adduced before it acquitted the respondents above-named by impugned judgment, dated 9th January, 1980 and consequently the State has filed the above acquittal appeal, on the grounds mentioned in the memo. Of appeal.
6. ' The learned Advocate for the State stated, that F. I. R. Was promptly lodged. In addition to this the learned counsel for the State submitted, that the learned trial Court has erroneously discarded the evidence of recovery of weapon, blood-stained clothes, judicial confessions of the respondents and the identification of the footprints of the respondents and as such the impugned judgment cannot be sustained. The learned counsel for the State further submitted, that the learned trial Court has given no cogent reasons for discarding judicial confessions, which were duly proved by the Magistrate, who recorded the said confessions. In support of his contentions the learned Advocate for the State relied upon cases reported in PLD 1966 SC 664, 1983 SCM R 601/623 and PLD 1970 SC 76. However, the learned_Advocate for the State stated, that the offence committed by the respondents would fall under section 304 (I), P. P. C. And Tkeeping in view the grave and sudden provocation alleged by the respondents in their judicial confessions, the sentences of reasonable imprisonment would meet the ends of justice.
7. ' The learned counsel appearing for the respondents on the other hand submitted, that the learned trial Court has given cogent reasons for discarding the alleged circumstantial evidence against the respondents. He further submitted, that the mashir of the alleged recoveries were not the residents of locality and as such mandatory provisions of section 103, Criminal Procedure Code were discarded by the Investigating Agency and as such the learned trial Court was fully justified in not relying upon said recoveries. As far as the identification of the footprints were concerned, the identification memo. In respect of the respondents was not even put to the mashir. The learned counsel further submitted, that the respondents in their statements under section 342, Cr. P. C.
8. Have explained the injuries on their persons. The learned counsel further submitted, that important witnesses like wife of complainant and Mst. Khalda were given up by the prosecution, without any cogent reasons and consequently the learned State counsel has been unable to point out anything in the impugned judgment so as to warrant interference, in the above acquittal appeal.
9. ' We have carefully considered the above submissions made by the learned Advocates before us and have gone through the Record and Proceedings of the learned trial Court as well as the impugned judgment and the cases cited by the learned Advocate for the State.
10. ' It is an admitted position, that this was an witnessed murder and the prosecution case rests solely on the circumstantial evidence like recovery of blood-stained weapon, blood-stained clothes, identification of footprints and alleged judicial confession of the respondents. The learned State counsel in support of the above appeal submitted, that the learned trial Court has erroneously rejected the circumstantial evidence brought on record as well as judicial confessions and consequently came to erroneous conclusions, that prosecution has failed to establish its case beyond reasonable doubt. We have gone carefully through the impugned judgment and find that the learned trial Court rightly rejected the identification of footprints, as even the mashirnama Exh.
11. 22 of the said identification test was not put to P. W. 3 Shafi Muhammad, the tracker. In addition to this the learned trial Court has also given cogent reasons, that according 10 P. W. 3, there were only one blood-stained footprint of on male person, whereas according to Exh. 22 footprints of both the respond dents were identified. It may further be noted, that earlier this tracked had picked up one Ghulam Nabi's footprints in earlier test, vide Exh.
13. In the face of such conflicting statement of P. W. 3 Shafi Muhammad no reliance can be placed on this piece of evidence, which otherwise also is considered to be weak. P. W. 5 Muhammad Ishaque, on whose statement under sections 161 and 164, Cr. P. C. The present respondents were arrested, gave a complete go-bye to the prosecution case and denied that he gave his statement under section 164, Cr. P. C. On his own. This witness before the learned trial Court stated, that at the instance of Subedar, he gave his statement under section 164, Cr. P. C. This witness at the time of recording of his statement under section 164, Cr. P. C . Was about 10/11 years old and as such the possibility of his having given the said statement at the instance of Investigating Agency cannot be ruled out, keeping in view his statement given before the learned trial Court. In view of this the statement of this witness given under section 164, Cr. P. C. Was rightly rejected by the learned trial Court for the cogent reasons gives in the impugned judgment.
12. ' As far as the recoveries of the blood-stained clothes from the respondents, the learned trial Court taking into consideration the statement of P. W.? Muhammad Sadiq, IlIrd Class Magistrate, Tando Allahyar discarded the said recovery, for the cogent reasons given in the impugned judgment and we see no reason to disagree with the conclusions arrived at by the learned trial Court, in respect of the said recoveries. The learned counsel for the State further submitted, that the statement of P.
13. W. 9 Haji Ghulam Muhammad mashir of the recovery of clothes of the respondents as well as deceased from their house and one Kati, which was not bloodstained. Was wrongly discarded by the learned trial Court. We see no force in this contention as well, as this P. W. Was not the resident of thel locality and the 1.
0. Disregarded the mandatory provisions of section 103, Cr. P. C. By not picking up two respectable mashirs of the locality, whole could have easily been available in the city of Tando Allahyar, where the house of respondent Jamil was situated. In addition to this P. W. 9 Haji Ghulam Muhammad in his cross-examination admitted, that the police had taken his signature and that of co-mashir Sherar on blank papers. In the face of such statement of the rnashir, no reliance could be placed on such recoveries and the learned trial Court was fully justified in ignoring this piece of evidence against the respondents.
14. The learned trial Court has given cogent reasons for rejecting judicial confessions of the respondents and after due appraisal of the prosecution witnesses on record, the learned trial Court came to the conclusion, that the said confessions were procured under coercion and duress, in addition the learned Magistrate who recorded the said confessions admitted in his cross- examination, that both the respondents were present, when the confessions of the other was being recorded. In face of such evidence on record, we see no reason to disagree with the conclusions and findings arrived at by the learned trial Court in respect of these alleged two judicial confessions. The conclusion arrived at by the learned trial Court in respect of discarding these two confessions is fully supported by case reported in PLD 1975,SC 187.
15. ' In view of our above conclusions, we find no force in the contentions Urged before us by the learned State Counsel and cases cited by learned State counsel are on different facts and as such not applicable to this case and therefore we find no merits in the above acquittal appeal.
16. ' Therefore, we dismiss the above acquittal appeal and discharge the bail bonds executed by the respondents in the above acquittal appeal.