' The appellant Lakhi has been sentenced to suffer imprisonment for life and to pay compensation of Rs,40,000 to the heirs of deceased Abdul Jabbar or in default to undergo rigorous imprisonment for one year more under section 302, P.P.C. By the learned Sessions Judge, Mirpur Khas on 10-9- 1995. The appellant has preferred this appeal against the conviction and sentence awarded to him.
2. The prosecution case against the appellant was that he gave belows with sharp side of hatchet to deceased Abdul Jabbar on 17-4-1988 at 5-00 a.m. While the said deceased was sleeping on a cot at his hotel situated at "Amb" Mori commonly known as "Disco" Mori. P.Ws. Abdul Rashid and Yaqoob, who happened to be present near the scene of offence gave challenge (Lalkara) to the appellant who ran away towards northern side alongwith his hatchet. Abdul Jabbar became unconscious due to the injuries sustained by him and he succumbed to these injuries. The first information report of this incident was lodged by P.W. Ali Ghulam, father of deceased Abdul Jabbar at Police Station Digri on 17-4-1988 at 7-00 a.m.
3. The F.I.R. Was recorded by P.W. Syed Ashfaq Hussain Shah; S.I.P. He recorded statements of eye- witnesses Muhammad Yaqoob and Abdul Rashid and those of Muhammad Kasim, Muhammad Tayyab, Muhammad Hayat, Shah Bux, Nek Muhammad and Mir Hassan. The S.I.P. Arrested the appellant in presence of Mashir Muhammad Hayat and Rahib on 20-4-1988. He also secured blood-stained clothes from the person of the appellant. On the pointation of appellant a blood- stained hatchet was also recovered by S.I.P. From under mud covered by bushes. The appellant was produced before Mr. Gul Muhammad, Mukhtiarkar and F.C.M., Digri on 23-4-1988 for recording his judicial confession.
4. The S.I.P. Also arrested another accused Abdul Hameed Soomro from the Otak of Jan Muhammad in the presence of Mashirs Shoukat Ali and Manthar. Accused Abdul Hameed Soomro was, however, let off by the S.I.P. Under section 169, Cr.P.C. For want of evidence.
5. The autopsy on the deceased was performed at Taluka Hospital, Digri, by Medical Officer Dr. Abdul Jalil, who found the following external injuries on the body of the deceased:-
(a) Incised wound 4" x 1" bone deep cutting right mandible extending from tight cheek to right side of neck cutting vessels of right side of neck.
(b) Incised wound 4" x 1" cutting left hand through and through at mid palmer level and it was traumatically imputed.
(c) Incised wound 6" x 1" bone deep over back of right elbow cutting under lying bone through and through.
(d) Incised wound 3" x 1" on back of lower part of right forearm cutting underlying bone through and through.
(e) Incised wound 3" x 1" on back of right wrist cutting underlying bone through and through.
6. The Medical Officer has opined that all the above injuries appeared to have been caused by a sharp cutting weapon such as hatchet. He further opined that deceased Abdul Jabbar died due to shock and haemorrhage as a result of abovementioned injuries out of which injuries 1 and 2 were sufficient to cause death in the ordinary course of nature.
7. The appellant denied the prosecution allegation and alleged that he had been falsely implicated in this case. In his statement under section 342, Cr.P.C. The appellant further stated that he did not make any judicial confession before Mukhtiarkar and F.C.M., Digri. The appellant also examined himself on oath in disproof of the charge levelled against him. In the said statement on oath, he stated that he did not commit murder of deceased Abdul Jabbar and that he did not give any confession admitting commission of murder. He stated that he had no dispute with Nek Muhammad over money matter: The appellant denied recovery of hatchet from him. He further stated that he did not vote in elections in favour of Mir Haji Hayat and that he was falsely implicated in this case with the assistance of Mir Hassan.
8. I have heard Mr. A.Q. Halepota, learned counsel for the appellant and Mr. Muhammad Saleh Panhwar, learned counsel on behalf of Advocate-General for the State. I have also been taken through the evidence in the case by the learned counsel. The perusal of F.I.R. Shows that Abdul Jabbar was assaulted by the appellant and Abdul Hameed Soomro. Both the appellant and Abdul Hameed Soomroo were armed with hatchets at the time of incident and according to version given in F.I.R. Both of them caused hatchet injuries to Abdul Jabbar and killed him. Now this F.I.R.
Was lodged by P.W. Ali Ghulam, who is father of deceased Abdul Jabbar on the basis of information conveyed to him by eye-witness Yaqoob. Both the eye-witnesses Yaqoob and Abdul Rashid used to sleep at the hotel at night time. The deceased Abdul Jabbar also used to look after the hotel of his father and he, too, used to sleep at the said hotel at night time. In his evidence in the trial Court the first informant, however, stated that when he reached at the Wardat upon information given by P.W. Yaqoob where he met another eye-witness Abdul Rashid, who also made the same statement as was made to him by P.W. Yaqoob. The complainant, however, further stated in his evidence in trial Court that he gave the name of Hamid in F.I.R. Under suspicion as on the day of fight between appellant Lakhi and Nek Muhammad he was seen going alongwith the appellant. P.W. Yaqoob is maternal-uncle of the deceased and P.W. Abdul Rashid is son of maternal-uncle of the complainant whereas P.W. Mir Hassan is his real maternal-uncle. Mashir Hayat is nephew of P.W.
Yaqoob and Hayat is also Masat of deceased. Thus, all the material witnesses are closely related inter se. The relationship of all these witnesses has been admitted by P.W.1 Ali Ghulam in his cross- examination wherein he has also admitted that on perusal of F.I.R. He found that it was written according to his version. In his cross-examination he further stated that he did state in F.I.R. That P.W. Yaqoob had told him that the appellant and Abdul Hameed Soomro had dealt hatchet blows to his son. In so far as the complainant Ali Ghulam is concerned, it can be safely said that he is not a witness of truth and no reliance can be placed on his statement even qua appellant unless there was other cogent and convincing evidence to connect the appellant with the commission of this crime. Now, coming to the evidence of eye-witness Abdul Rashid, he admitted in cross- examination that his statement was recorded by Police after 2/3 days, so he is a witness of late production. In the absence of explanation for delay in recording his statement under section 161, Cr.P.C. Which explanation is lacking in this case, his evidence is to be ruled out of consideration.
P.W. Abdul Rashid further stated that he attended Police Station Digri on the same day of incident. If what he says is correct, it is not understood why his statement was not recorded by police on the day of incident. This prosecution witness further stated in cross-examination that there were blood stains on the cot and on the bed where deceased Abdul Jabbar was sleeping before he was done to death. Now this version of P.W. Abdul Rashid is belied by absence of blood stains on the cot or bedding lying on the cot where Abdul Jabbar was said to be sleeping before he was assaulted. The Mashirnama of scene of offence showed that there was no blood stains whatsoever on the cot or the said bedding. The Mashir P.W. Muhammad Hayat was confronted with the contents of this Mashirnama and he had to admit that it was written therein that there was no blood stains on the cot or bedding. This Mashir admitted that the contents of the Mashirnama were read over to him which were correct. The overall effect of the analysis of the evidence of P.W. Abdul Rashid shows that he was not present at the hotel on the morning of the incident and that he did not actually saw the incident. P.W. Yaqoob, who is the other eye-witness, also stated in his cross-examination that there were blood stains on the cot and bed on which Abdul Jabbar was sleeping at the time of incident. Now this fact is believed by the Mashirnama of Wardat and testimony of Mashir Hayat, who was confronted with the contents of Mashirnama as discussed hereinabove. In his cross- examination P.N. Yaqoob admitted that his statement was recorded by police after 4 or 5 days. In the circumstances P.W. Yaqoob is also a witness of late production. There is no explanation for delay in recording his statement under section 161, Cr.P.C. In his examination-in-chief P.W. Yaqoob stated that police came to Wardat after registration of F.I.R. And his statement was recorded but this is belied by his own admission that his 161, Cr.P.C. Statement was recorded by police after about 4/5 days. All these facts and circumstances would, therefore, lead a reasonable mind to an inference that P.W. Yaqoob was also not present on the scene of offence at the time of incident. In their testimony both these eye-witnesses stated that the appellant caused hatchet blows to the deceased while he was sleeping on his cot with a bed on it. The absence of blood stains on the cot and on the bed would go a long way to show that none of these eye-witnesses actually saw the incident. The evidence of both these eye-witnesses is, therefore, liable to be disbelieved. Now coming to the evidence of recovery of hatchet on the pointation of the appellant on 20-4-1988 on which date he was also arrested, it may at once be stated that the complainant Ali Ghulam admitted in his cross-examination that the appellant was produced by Wadero Manthar before police on the same day of incident at 11-00 a.m. Likewise P.W. Yaqoob also admitted in cross- examination that the appellant Lakhi was arrested by police on the same day of the incident. In the face of these admissions given by the complainant and P.W. Yaqoob, which are closely related to the deceased, it is hard to believe that the appellant was arrested on 20-4-1988. The arrest of the appellant on 20-4-1988, thus, being highly doubtful, the evidence regarding recovery of hatchet on his pointation on 20-4-1988 vide Mashirnama Exh.12-C is also liable to be disbelieved. In this regard further reference can be made to the cross-examination of Mashir Muhammad Hayat, who stated that the appellant dug out hatchet from mond of dust and that he had done so with the help of a spade which was available at the land near the well. The evidence of Investigating Officer S.I.P.
Syed Ashfaq Hussain Shah, however, showed that hatchet was buried under sand and that it was taken out by the appellant with his hands. As regards the recovery of blood-stained shirt from the person of the appellant this piece of evidence is also doubtful because shirt was shown to have been secured from the person of the appellant on 20-4-1988 but he was actually produced before police on the same day of incident by Wadero Manthar at 11-00 a.m. As admitted by the complainant and P.W. Yaqoob. If the shirt of the appellant was really blood-stained why it was not secured on the day of arrest of the appellant as stated hereinabove. Now coming to the judicial confession, which was retracted by the appellant at the stage Of trial the perusal thereof, shows that the version of the incident narrated therein is totally different from the one given by the prosecution. The learned trial Judge also discarded the judicial confession for the same reason. No reliance can, therefore, be placed on this confession which is retracted by the appellant.
9. As regards motive, it is too flimsy and inadequate. The money was borrowed by P.W. Nek Muhammad from the appellant. Deceased Abdul Jabbar was not in any way liable to pay back the said borrowed amount. The grappling, if any, also took place as between the appellant and P.W.
Nek Muhammad and the deceased Abdul Jabbar is said to have only intervened while the appellant and P.W. Nek Muhammad grappled why would then the appellant kill the deceased who was not in any way responsible for the payment of the loan taken by P.W. Nek Muhammad. Thus, the evidence on the point of motive is not convincing and it does not lend any corroboration to other evidence led by the prosecution.
10. Mr. Muhammad Saleh Panhwar, learned counsel, who appeared on behalf of Advocate-General, Sindh for the State, frankly conceded that he did not support the impugned judgment. He further stated that the entire prosecution case was doubtful and that no conviction could be sustained upon such quality of evidence. I agree with the stand taken by the learned State Counsel. He has fairly conceded in this case.
11. In view of what is discussed above, the prosecution has failed to prove charge of murder against the appellant beyond reasonable doubt. In the circumstances, conviction and sentence awarded to the appellant are set aside. It is ordered that the appellant may be set at liberty forthwith if not required in any other case.