1. ' NASIR ASLAM ZAHID, J.--By judgment, dated 30-1-1986 of the learned Sessions Judge, Sanghar appellants Abdul Aziz and Khurshid Begum were convicted under section 302/34, PPC and sentenced to death. Each accused was also fined Rs,5,000/- and in default to undergo six months'
2. R.I. Each. It was directed that in case the amount of fine of Rs,10,000/- was realized, half of such amount i.e, Rs,5,000/- be paid to the heirs of the deceased Murad All as compensation under section 544-A, Cr.P.C. The two convicts filed separate jail appeals. Abdul Aziz filed Criminal Jail Appeal No,85 of 1986 and Khurshid Begum filed Criminal Jail Appeal No,86 of 1986. The learned Sessions Judge also made a reference under section 374, Cr.P.C. For confirmation of the death sentence. The two appellants being paupers and unable to engage advocates to defend themselves, counsels were provided by the State to the appellants. On 18-11-1986 when these appeals and the confirmation case were fixed for hearing before us, after hearing the arguments of Mr. S. Murtaza Hussain, learned counsel for appellant Abdul Aziz, Mr. Nooruddin Sarki, learned counsel for appellant Khurshid Begum and Mr. Abdul Waheed Siddiqui, learned counsel for the State by a short order, we allowed the appeals setting aside the judgment, dated 30-1-1986 of the trial Court and rejecting the reference of confirmation of death. The reasons for our short order are contained in this judgment.
2. The date of the incident was 6-10-1980 at 2-30 AM in the house of Murad All deceased situated in village Murad Ali, Taluka Tando Adam. The F.I.R. Was lodged at 6 AM by complainant Muhammad Ilyas (nephew of deceased Murad Ali) at Police Station Tando Adam, which is at a distance of one mile from the scene of the incident. The F.I.R. Is reproduced herein below: ' "It is the report of complainant that I reside in village Khair Muhammad Mari. I am running a shop in the same village. Today in the morning, when I got up to offer my prayers at 5-00 hrs., my cousin Falak Sher came to me and narrated the facts that, "I, my father Murad Ali, my mother Khurshid Begum, my sister Nasreen and my Sirio Hari and other relatives, after eating meals, went to sleep in the courtyard of the house. I was sleeping at the cattle tethering place. At about 2/3 AM at night I was awakened by Hari Aziz and my mother and that my father was thrown out by some unknown persons of the door of the courtyard at the distance of 10/12 paces after killing him when he was sleeping on his cot. I saw that the cot was lying empty (vacant) in the courtyard. The spread bed lying on the cot was blood stained. The dead body of my father was lying with upside towards down position at the distance of 10/12 paces away from the main door. The neck (front) of my father is cut and the remaining injuries were caused near the right ear with a sharp cutting weapon. There is much bleeding. The spread bed on the cot is stained with blood. The blood is lying under the cot also. At the distance of 4 paces from the cot of my father, my mother was sleeping on Thalia and he was also sleeping in the same verandah ("Angan"). My sister Nasreen was sleeping on a separate cot near my mother. I sent a man to inform my elder brother Ali Hawn, who was working in K-2 Form". Knowing the facts from Falak Sher, I went to "Wardat" on a bicycle with Falak Sher where I saw that the dead body was lying 10/12 paces distance from the courtyard on the path at the ground, with upside towards down position. His neck was cut and on right ear and on neck the injuries by the sharp side-cutting weapon were caused. There was much bleeding. In the Court-yard on the cot, where the bed was spread, the bed was stained with blood and much blood was lying on the floor. I inquired from my aunty Mst. Khurshid Begum, Hari Aziz and my cousin Nasreen, who told me that we were sleeping in courtyard. Aziz and Aunti told me that about 2/3 AM (night) we woke up on door knocking (Kharka) voice and we saw that the cot of Murad Ali was lying empty. There was blood on the bed spread on the cot. We went out, verified and saw that the dead body of Murad Ali was lying with upside towards down position and his neck was cut with a sharp side cutting weapon. The other injuries were on his neck. We woke up on knocking. In those days there was a dispute between my uncle Murad Ali and his Zamindar Hakim Mubarak All on harapship. Two days before, that dispute was settled between them. Zamindar Mubarak Ali agreed to pay Rs,1,000/- to him for starting crops in the land, viz. Chillies, maize, etc. As per settlement/"Faisla" the deceased had to go for harapship from the Zamindar to Malik Allah Yar. But Aziz, who is Sirio Hari of my uncle was not agreeable to go there. I know personally that my aunti Khurshid Begum had illicit terms with the same Aziz because of his stay with her since long, who is unmarried. I suspect that Aziz killed my uncle with the advice of my aunti together. I, leaving Falak Sher and others near the dead body, have come to lodge the report. Justice be done."
3. ' A perusal of the FIR shows that complainant Muhammad Ilyas was not an eye-witness but he was told about the incident by his cousin PW Falak Sher (son of deceased Murad Ali). However, after narrating what Falak Sher had told him, according to the FIR, complainant Muhammad Ilyas went to the "wardat" saw the dead body and the injuries received by the deceased and there he inquired from appellant Khurshid Begum and Abdul Aziz and PW Nasreen (daughter of the deceased) about the incident who narrated the facts. In the FIR, complainant Muhammad Ilyas then stated that he was personally aware that Khurshid Begum (wife of deceased) and Abdul Aziz (hari of deceased) were on illicit terms and he suspected that Aziz killed Murad Ali on the advice of. Khurshid Begum.
4. The only eye-witness was Mst. Nasreen, daughter of the deceased. The two appellants were tried and were convicted by judgment, dated 24-1-1982 of the learned Sessions Judge, Sanghar. The two appellants filed Appeals No,33 of 1982 and 37 of 1982 and the case was also referred to this Court for confirmation of the death sentence being Confirmation Case No,4 of 1982. By judgment dated 15-11-82, this Court reached the conclusion that the proceedings in the trial Court had not been conducted properly and serious prejudice had been caused to appellant Khurshid Begum, which tantamounts to miscarriage of justice. The conviction and sentence were set aside and the case was remanded back to the trial Court for de novo proceedings. During the first trial both the appellants had expressed their inability to engage their own advocates and as such one advocate was appointed at State's expense for both the appellants. Conflicting stands were taken in the trial by the two appellants in their 342, Cr.P.C. Statements, appellant Khurshid Begum took the stand that the deceased was killed by Abdul Aziz without any participation or complicity by/of Khurshid Begum. There was a judicial confession of appellant Abdul Aziz, which blamed Khurshid Begum for murdering the deceased stating that she had inflicted hatchet injuries on her husband Murad Ali killing him and after killing him had come to Abdul Aziz and told him that he should also give a hatchet blow to the dead body, otherwise, he would be implicated. In the judgment dated 15-11- 1982, this Court took the view that separate advocates should have looked after the interest/defence of the two appellants. On remand, evidence of the witnesses was recorded again but evidence of the solitary eye-witness, Mst. Nasreen, could not be recorded, as she died soon after giving birth to a child. An application dated 14-12-1985 was made by the DPP during the second trial for bringing the earlier deposition of Mst. Nasreen on record on the ground that she had expired and by order passed on the same day i.e, 14-12-1985 the learned trial Court, after hearing the DPP and the advocates for accused, brought the recorded deposition dated 28-9-1981 on record. The deposition of Nasreen daughter of the deceased and the only eye-witness is reproduced below:- ' "Deceased Murad Ali was my father, Accused Mst. Khurshid present in Court is my mother. Ali Hassan and Falak Sher are my brothers. I used to live alongwith my parents and brothers in the same house. Accused Abdul Aziz present in Court was our Hari. He used to live in our house. On the night of the incident, I, my mother, my father and accused Aziz were sleeping at the same place in the house while Falak Sher was sleeping near fodder machine in the same courtyard, where we were sleeping while Ali Hassan had gone out of the village at that night. At about 2-30 AM on the sound of hatchet blows I woke up from sleep and saw in the electric light, which was burning near the house that Mst. Khurshid and Aziz were inflicting hatchet blows on my father. I tried to raise cries but accused threatened me to keep quiet. Both the accused took the dead body of my father on the cot outside the house. Thereafter, they brought the cot and bed inside the house. I saw that both the accused went to Falak Sher and awakened him and told him falsely that somebody had killed my father. My brother then went to Ilyas, who is my cousin and brought him at "wardat". I did not inform Ilyas what I had seen because he had left for lodging the report with the police on seeing the dead body from outside the house. At about 10 AM, my brother Ali Hassan came and narrated the facts to him. Barkat Ali and Imamuddin had also come with Ali Hassan. I told him also the same facts. I had not informed the facts to Falak Sher immediately after the incident because both the accused were present in the house and I feared them.
5. ' My brother was Hari over the lands of Haji Mubarak. He had decided to leave the lands and shift to village Malik Allah Yar. He had informed Aziz also but he and my mother did not like this shifting.
6. Police examined me. Accused present in Court are the same.
7. Cross-examination: ' Accused Abdul Aziz had inflicted one hatchet blow while my mother had inflicted two hatchet blows within my sight. In our house the electric was supplied from tubewell engine. Tubewell engine is operated when water is needed for lands. On that night tubewell engine was not operated as there was no need of water for the lands. I am married with Altaf. I now Ilyas, he is uncle of Altaf. My elder sister has been married out of our 'Bradari'. It is not correct that my mother had decided to marry me with the son of her brother Siddiq before this murder. (Again says:) I do not know if my mother had decided so. It is incorrect that my brothers and uncles did not like my marriage with the brother's son of my mother.
8. ' My brother and uncles used to look after me after the murder of my father. Ilyas has got me married with Altaf. It is incorrect that I had not seen accused killing my father. It is not correct that Tawakul and Ilyas have killed my father."
9. ' Apart from the ocular evidence of Nasreen, the prosecution produced three witnesses for corroboration purposes and these are complainant Muhammad Ilyas, PWs. Ali Hassan and Falak Sher (both sons of deceased Murad Ali). Apart from this, there is the extrajudicial confession of Abdul Aziz made to. PW-2 Allah Yar Khan, omni-bus mashir, and his judicial confession produced through PW Asghar Ali (Magistrate). There are also recoveries in the shape of fwo blood-stained hatchets produced by Abdul Aziz from inside his house near the bushes of the compound wall, at his pointation. Dr. Ghulam Nabi, who performed the autopsy, gave evidence about the injuries found on the body of the deceased.
3. As observed earlier, the only eye-witness is Mst. Nasreen daughter of the deceased. However, after the judgment, dated 15-11-1982 of this Court remanding the case for de novo trial, she could not be produced in evidence by the prosecution on account of death. This naturally prejudiced the appellants in their defence. Even otherwise, the deposition of Nasreen recorded in the first trial and brought on record does not inspire confidence. The entire -deposition of Mst. Nasreen has been reproduced earlier. If what she had stated is to be believed, it will have to be believed that she woke up at about 2-30 AM on the sound of hatchet blows and saw the two appellants inflicting hatchet blows on her father and although she tried to raise cries but the appellants threatened her to keep quiet and the two appellants after committing the grue some murder took the dead body of Murad All on the cot outside the house and then they brought the cot inside the house and all this she saw in the electric light and during all this time neither she raised any cries nor her, brother Falak Sher, who was sleeping nearby, woke up. The statement made her in her examination-in- chief that she saw all this incident in the electric light is falsified by her statement in her cross- examination where she stated as follows:- ' "In our house the electricity was supplied from tubewell engine.. Tubewell engine is operated when water is needed for lands. On that night tubewell engine was not operated, as there was no need of water for the lands."
10. ' Then it appears to be rather strange, if not unbelievable, that the deceased is inflicted several hatchet blows and then the cot, on which the deceased is lying, is carried out of the house and brought back and this awakens Mst. Nasreen but his brother Falak Sher, who is sleeping nearby, goes on sleeping and does not wake up. Then, according to the prosecution case, Mst. Khurshid had produced a blood-stained rope 15-16 feet in length and according to the extra-judicial confession made by Abdul Aziz to PW Malik Allah Yar Khan, both the appellants had killed Murad Ali after tying deceased with a rope. It is significant to note, that no mention is made by Mst. Nasreen in her evidence about tying up the deceased with a rope or seeing any rope near or at the place of the incident. Mst. Nasreen does not appear to be a truthful witness.
11. ' Complainant Muhammad Ilyas has only narrated what Falak Sher had told him and thereafter, they had gone to the scene of the incident and saw the dead body. According to him, Abdul Aziz was on illicit terms with Khurshid. Begum. This is also stated by All Hassan and Falak Sher sons of deceased. According to Ali Hassan Murad All used to suspect that Abdul Aziz was on illicit terms with his wife Khurshid Begum and Ali Hassan himself also suspected so. Falak Sher also stated in his evidence that he had suspected Abdul Aziz to be on illicit terms with his mother. None of these three witnesses, namely, Muhammad Ilyas, Ali Hassan and kaiak Sher are eye-witnesses but all of them have stated that the two appellants were having illicit relations and that even the deceased knew or suspected so. In spite of. This, Aziz used to sleep in the same compound i.e, the compound of the house of deceased Murad All alongwith deceased, his wife Khurshid Begum, his son Falak Sher and his daughter Nasreen. Aziz was Hari of deceased Murad All and if Murad Ali and his son suspected appellant Khurshid Begum to be on illicit terms with Abdul Aziz, normally Abdul Aziz would have been kept at a distance and would not have' been allowed to sleep in the same compound where Khurshid also used to sleep. The evidence in this context given by Ilyas, Ali Hassan and Falak Sher appears to be unnatural.
12. ' The prosecution had also relied upon the judicial confession made by appellant Abdul Aziz, which is reproduced hereinbelow: ' "I have to say this that my name is Abdul Aziz son of Miran Bux, by caste Qureshi, aged about 45 years, resident of Tando Adam. I am cultivating the land. There is my building/ house in Tando Adam. I am Hall on the lands of Hakim Mubarak All Shaikh. Two sons of Murad Ali are Haris with me on the lands of Mubarak Ali. Deceased Murad All was doing the cattle selling and purchasing business. He did not purchase any household articles for his house, so that his wife Mst. Khurshid begum was annoyed with him and she was maltreated by him daily. The children were abused by him. I had just like brother's terms with them. I have also started to reside at the lands with them and my family/children were residing in Tando Adam. I used to eat the meat, etc., in the house of Murad Ali. I bore the expenses of the house. On 6-10-1980, at about 2/3 AM at night time, I was sleeping in the courtyard of Hakim Mubarak All near the cattle tethering place. I was awakened by the wife of Murad Ali, Mst. Khurshid and she asked me that she had inflicted two hatchet blows to her husband after putting a ball of cloth in his mouth and killed her husband and Mst. Khurshid asked me that I should also inflict one blow of hatchet to him saying that if I would not do so; she will involve me also. On her direction, I caused one hatchet blow to the dead body of Murad Ali, because of direction given by Mst. Khurshid that if I would not do so, I would be involved by her.
13. After directing me this, she took oath on Holy Quran and promised that she will marry me. After killing Murad Ali Khurshid, asked to throw dead body outside. One side of cot was caught hold by me and the other by Khurshid and the dead body was thrown by us on the path, outside the courtyard of Hakim Mubarak Ali and put the cot on the same place. Thereafter Khurshid asked me to raise cries and commotions saying that my husband has been killed by thieves. We raised cries, but none had come on our cries.
14. ' In the morning time, I went to Ilyas where Muhammad Hussain was also sitting. I narrated the actual facts to them. Both of them took me and produced before the Inspector of Police, who had reached "Wardat" after being informed by the relatives of the deceased Murad Ali. The Subedar inquired from me that where were the hatchets. I told him that Mst. Khurshid was keeping the same. Mst. Khurshid produced the two hatchets before the Subedar from inside the "Sarkand" and lying "karas" (wood-sur-bushes). The police had recorded my statement on the 'Wardat'. I disclosed the actual facts. I and Mst. Khurshid were arrested and brought to the police station. The dead body was sent to the Tando Adam Hospital."
15. ' The judicial confession is not inculpatory. If what is stated in the judicial confession is correct then deceased had already been murdered by Khurshid Begum and after that she came to Abdul Aziz and asked him to give one hatchet blow on the dead body of the deceased or else she would involve him also in the murder and in view of this Abdul Aziz caused one hatchet blow on the dead body of Murad Ali. This version given in the judicial confession also does not fit in with the prosecution case, according to which, both the appellants had caused the murder of deceased Murad Ali. Thig version is also contradictory to the version given by Mst. Nasreen. According to Mst.
16. Nasreen, she had seen both the appellants inflicting hatchet blow, perhaps at the same time but according to the judicial confession of Abdul Aziz hatchet blows had first been caused by Mst.
17. Khurshid on the deceased killing him and then she brought Aziz, who inflicted one hatchet blow on the dead body of the deceased. In any case on this confession, even if it is accepted, appellant Abdul Aziz cannot be convicted of the murder of deceased Murad Ali. Then no confession has been made by appellant Khurshid Begum and this judicial confession of Abdul Aziz cannot be used as substantive piece of evidence for A convicting appellant Khurshid Begum. On the extra-judicial confession of Abdul Aziz and recoveries of two hatchets also the conviction of the appellants cannot be sustained.
18. ' The evidence of Mst. Nasreen not being trustworthy and apparently unbelievable, judicial confession of appellant Abdul Aziz not being inculpatory and there being no other substantive evidence, on which conviction of the two appellants could be sustained, the prosecution had failed to establish its case against the appellants and for the aforesaid reasons the judgment dated 30- 1-1986 of the learned Sessions Judge, Sanghar, in Sessions Case No,155 of 1980 was set aside by our short order dated 18-11-1986.