' By this judgment I propose to dispose of Criminal Appeal No,51 of 1997 filed by the appellants namely, Muhammad Bachal son of Muhammad Rakhial and Wali Muhammad son of Arab Machhi against the judgment, dated 27th May, 1997 passed by the Additional Sessions Judge, Kotri in Sessions Case No,12 of 1988, State v. Muhammad Bachal and another under section 302/34, P.P.C.
Convicting the appellants to suffer imprisonment for life and to pay a fine of Rs,50,000 each and in default to suffer R.I. For three months.
2. On 18-2-1998 at 1-30 p.m. Complainant Ali Muhammad lodged an F.I.R. At Police Station Kotri which reads as under.
3. He resided at Mangio Shoro and his brother Rasool Bux and his family also resided with him. On 17-2-1988 at about 3-00/4-00 p.m. Rasool Bux told him that he was going to his house at Khanpur.
He did not return in the night. He thought that Rasool Bux had decided to spend the night at his house. On 18-2-1988 as per daily pursuit he went to Gatta Mill. At about 12-00 noon his relative Muhammad Rahim son of Barad a co-worker in Gatta Mill informed him that while he was coming to Gatta Mill through Khanpur he found in a ditch the dead body of Rasool Bux. On hearing so, he alongwith Nazeer and Ibrahim through a Katcha road, reached to the pointed place. There he found the dead body of Rasool Bux in a ditch. He left Nazeer and Ibrahim near the dead body and went to Wadero Yakoob Shoro who advised him to lodge a report at the police station. He further complained that about 3/4 months back accused Rakho has blamed deceased Rasool Bux of illicit relations with his wife to the extent of Karo Kari, and they tried for compromise and accused Bachal alias Bachoo son of Rakho and Wali Muhammad told them that deceased was the culprit and they will deal with him according to their wishes. He, therefore, suspected that the said accused murdered Rasool Bux to satisfy their suspicion of Karo Kari.
4. During the course of the investigation the police visited the place of the Wardat and prepared a Mashirnama, inquest report, recorded statements of P.Ws. Rahim and Ibrahim, sent the dead body to the Taluqa Hospital for post-mortem, secured the blood-stained clothes of the deceased, arrested accused Muhammad Bachal and Wali Muhammad and prepared the Mashirnamas, secured the crime weapon and prepared a Mashirnama, produced the two accused persons before A.C.M., Kotri for recording their confessional statements, on conclusion of the investigation submitted a challan in the Court.
5. On 2-2-1989 the trial Court framed the following charges:- "That you on the intervening night of 17/18-2-1988 near loco shed in the bushes of Khabars at old Railway line at Kotri Town in furtherance of your common intention committed murder by intentionally causing the death of the deceased Rasool Bux by inflicting dagger injuries to him and thereby committed an offence punishable under section 302/34, P.P.C. Within my cognizance.
' And I hereby direct that you be tried by me on the aforesaid charge."
6. The prosecution examined complainant P.W.1, Ali Muhammad, Exh.6, who produced F.I.R. As Exh.7, P.W.2, Ibrahim, Exh.8. Learned D.D.A. (A.P.P.) gave up P.W. Nazir, Exh.9 and Mashir Ali Nawaz, Exh.10, P.W.3 Mehboob Ali, Exh.11, who produced Mashirnamas of arrest of appellants, Exh.11/A and Exh.11/B, Mashirnama of recoveries of the blood-stained clothes of appellants, Exh.11/C and Exh.11/D. P.W.4, A.C.M., Muhammad Siddiqui, Exh.12, who produced confessional statements of both accused recorded under section 164, Cr.P.C., Exhs.12/A and 12/B. Prosecution also examined P.W.5 A.S.-I. Ali Akram Exh.14 who produced a Mashirnama of the recovery of the dagger from Bachal Exh.14/A, P.W.6 Raja Bisharat Ali, the then S.H.O., Police Station Kotri Exh.15 produced the site sketch Exh.15/B-1, Mashirnama of Wardat as Exh.15/B, inquest report Exhs.15/C and 15/D, Mashiranama of clothes of the deceased Exh.15/E, and a Chemical Report Exh.15/F. P.W.7 Dr. Afzal Hussain Exh.16 produced a post-mortem report of the deceased Rasool Bux Exh.16/A. Learned D.D.A. Closed the side of the prosecution vide his statement Exh.17.
7. Statements under section 342, Cr.P.C. Of both the appellants were recorded at Exhs.18 and 19.
Both of them stated that the prosecution case was false. They have denied the recovery of blood- stained clothes from them. They retracted confessional statement under section 164, Cr.P.C. And stated that their ladies were put under threat of disgrace and insult by police and they were-made to sign by force on written statements. They have further stated that there is no direct evidence against them and the police officials were hostile towards them and they are innocent. They examined themselves under section 340(2), Cr.P.C. And also produced evidence in defence.
8. Muhammad Bachal at Exh.20 in his statement under section 340(2), Cr.P.C. Stated that he was arrested by the police from his house and his other family inmates were also taken to the police station where he was told by the police that they are involved in the murder of one Rasool Bux. He further stated that he neither confessed nor produced blood-stained clothes and he is innocent.
He was cross-examined by D.D.A.
9. Wali Muhammad in his statement under section 340(2), Cr.P.C. Exh.21, stated that the accused Muhammad Bachal is the husband of his sister. About 9 years back he was arrested by the police from his village at Petaro Cadet College. He was brought at the Police Station Kotri and Bachal was already there. After two days the police brought their ladies and told them that they are involved in the murder of Rasool Bux and they were forced to put their signatures under the coercion were threatened that their ladies will be disgraced and insulted. They were innocent.
10. The defence examined two witnesses D.W.1 Imam Zaidi Exh.23 and D.W.2 Khatijia alias Khatoo Exh.23. Thereafter the defence closed its side at Exh.24. These' two defence witnesses supported the case of the appellants.
11. The trial Court framed the following points for determination:-- ' Point No,l. Whether the deceased Rasool Bux was murdered and he died an unnatural death?
' Point No,2. Whether on the intervening night of 17/18-2-1988 near Loco Shed at old Railway Line at Khanpur, Kotri; the present accused committed the murder of deceased Rasool Bux by inflicting dagger injuries to him and thereby committed an offence punishable under section 302/34, P. P. C .?
' Point No,3. What should be the conclusion of trial?
12. Heard the counsel for the appellants and also for the State. I am inclined to allow the appeal for the reasons to follow hereafter.
13. As far as the Point No,1 is concerned no one disputed that Rasool Bux died a violent death. This fact has been proved by the evidence of P.W.7 Dr. Afzal Hussain, the Medical Officer who had concluded the postmortem of deceased. The relevant portion of his evidence is reproduced below.
' During the external examination the P.W.7 found the following injuries:--
(1) Incised wound about 8 c.m. x 3 c.m. Cavity deep on the left lower chest in 6th intercostal about 7 c.m. Below left nipple (in transverse direction).
(2) Incised wound 2 c.m. x 1/2 c.m. x muscle deep on the right lower chest at the level of the 6th rib about 4 c.m. Lateral to the sternum.
(3) Incised wound about 10 c.m. x 3 c.m. x cavity deep (intestine, transverse, colon coming out through wound) in the opigastric region.
(4) Incised wound 3 c.m. x 1.5 c.m. x cavity deep is right hypochondrium about 4 c.m. Below the costal margin."
' During the internal examination D.W.7 found the following injuries:--
(i) In the chest cavity lungs were healthy, percardium was cut of the left ventricle up to the appex.
There was an incised wound 7 c.m. x 2 c.m. At lateral border of the left ventricle up to the appex.
Poricordial cavity full of blood corresponding to injury No, 1 . Both chambers of the heart were empty.
(ii) On examination of the abdomen, abdominal wall was cut at exit of injuries Nos.3 and 4.
Peritoneum cut anteriorly cut in epigastic and right hypochondria region measuring about 9 c.m. x 1/2 c.m. And 2.5 c.m. x 1/2 c.m. Respectively the stomach was healthy and the large intestine contained faecal. The transverse colon was coming out through the injury No,2 the liver spleen and the kidneys were healthy.
' Opinion.--- From the external and the internal examination of the deceased Rasool Bux son of Nim aged about 25 to 30 years, I am of the opinion that the death of deceased is due to haemorrhage and shock as a result of penetrating injury to the left ventricle of the heart. Corresponding to injury No,1 is sufficient to cause the death in the ordinary course of nature. However, death is further precipitated for injuries Nos.3 and 4 to the abdomen, resulting in intra-abdominal haemorrhage.
' The injuries could have been caused by sharp-cutting weapons.
' All injuries are ante-mortem. The probable time of death could be instantaneous. Time between death and the post-mortem, was about within 24 hours.
' I produce the medical certificate, the same is placed as Exh.16/A, it is the same correct and bears my signatures."
14. In the cross-examination the opinion of P.W.7 has not been questioned. It is, therefore, proved that Rasool Bux was murdered as stated by P.W.7.
15. P.W.1 Ali Muhammad the first informant and brother of the deceased were examined. He supported his statement in the F.I.R. To the extent that on 17-2-1988 at 3/4 p.m. His brother Rasool Bux told him that he was going to his house at Khanpur. On the next day i,e, 18-2-1988 one Muhammad Rahim informed him that he found the dead body of Rasool Bux lying in the old ditches in-between Khanpur and Loco Shed of Railway Department. On hearing this, he alongwith Nazir Ibrahim and others went to the pointed place where he saw dead body of his brother who had been killed with a Chhuri. He thereafter lodged the report Exh.7. He further stated that he was definite that the two appellants murdered his brother. During the cross-examination he admitted that Subedar Muhammad Soomar told him that he should give some motive against the appellants for committing the murder of Rasool Bux. He stated that Subedar Muhammad Soomar had himself narrated the story of Karo Kari in the F.I.R. But no such incident admittedly took place at any time. This witness has not supported the case as placed in the F.I.R. He had disowned the narration of motive of the murder. In spite of disowning the motive he said that these two appellants killed his brother. He had not given any reason why the two appellants are suspected by him to be the murderers of his brother. His evidence does not create confidence and cannot be relied upon.
16. P.W.2 Ibrahim supported the narration of the P.W.1 to the extent that in his presence one Muhammad Rahim informed P.W.1 of having seen the dead body of Rasool Bux in the old ditches near Khanpur. He went alongwith P.W.1 to place where the dead body of Rasool Bux was lying. The evidence of this witness is of no help to the case of the prosecution.
17. The prosecution gave up P.W. Nazir and Ali Nawaz through statements Exhs.9 and 10.
18. P.W.3 is Mehboob Ali who acted as one of the Mashir of arrest of appellants. He produced Mashirnamas 11/A and 11/B. He also acted as one of the Mashirs of the recovery of the blood- stained clothes of appellants Bachal and Wali Muhammad and produced Mashirnamas Exhs.11/C and 11/D. In cross he had admitted that at the time of arrest people of locality had gathered there but no one from the locality was made Mashir of arrest and recovery. It is pertinent to note that according to prosecution the incident took place between the night of 17/18-2-1988 and the appellant were arrested after 4 O'clock on 19-2-1988 and they up to that time were wearing the blood-stained clothes. This version of the prosecution cannot be believed that the appellant will continue to wear the clothes with blood stains up to 4 O'clock of 19-2-1992 i,e, for nearly two days and, thus, will provide evidence of murder against themselves. This part of the evidence is unnatural and unrealistic. This view is further strengthened by the fact that no independent Mashir has been joined into the proceedings of recovery of blood-stained clothes.
19. The prosecution failed to produce Rahim an important prosecution witness. He was the first person who had informed about the location of the dead body of Rasool Bux. The police for the unexplained reasons did not suspect him to be one of the accused. In the absence of any direct evidence against the two appellants Rahim could have been one of the suspects. The prosecution had not given satisfactory reason for not producing him in the Court.
20. The main witness of the prosecution is P.W.4 Muhammad Siddiqui, the A.C.M., who had recorded the confessional statement of the appellants. He produced the statements as Exh.12/A and Exh.12/B.
Following are the extracts of the confessional statements:-- ' Bachal.--- Sir, the facts are that on 17-2-1988, I was sleeping in my house and it was 10/11 p.m.
Night time. My sister Mst. Khadija went to attend the call of nature in the jungle. On her cries my mother woke up and she also woke me up. I saw Rasool Bux Machi who was teasing my sister and he had a hatchet in his hands and forcibly was trying to untie her Shalwar. I and Wali Muhammad moved forward so as to rescue her but Rasool Bux gave a hatchet blow with the sharp side to my cousin Wali Muhammad and thereafter started to ran away. We followed him and got him near Loco Shed and my cousin Wali Muhammad grappled with him and I gave him dagger blows and left him in a serious injured condition and thereafter came back to our house and on the next day in the night police arrested me."
' Wali Muhammad. On 17-2-1988 I was sleeping in my house in the night time. All of sudden I heard cries of Mst. Khadija who was engaged with me. On that night I was staying in the house of my in- laws as a guest and was sleeping. On the cries of Mst. Khadija I and Muhammad Bachal woke up and we saw that Rasool Bux had caught hold of Mst. Khadija from her breast and was trying to untie the Shalwar and was also teasing her. I moved forward to rescue her and Rasool Bux attacked me with the hatchet which hit me on the left side below my shoulder as the hatchet actually was stuck-up in my clothes and I at once caught hold of it. He then left the hatchet and ran away. During our fight my cousin Allah Dino also woke up and I and Bachal followed Rasool Bux and got him near the Loco Shed. I put him down and Muhammad Bachal gave him two or three blows of dagger. We then left him in an injured condition and came back and slept. Today in the morning I went to Petaro Village from there after one or two days police arrested me."
21. In the confessional statements of the appellants certain facts were revealed which were to be proved by the prosecution. The appellants have stated that Rasool Bux had assaulted his fiance Mst. Khadija and at her cries he and Wali Muhammad woke up. Mst. Khadija was produced in Court as a defence witness where she claimed to be the wife of appellant Wali Muhammad. Prosecution did not cross-examine this lady on this aspect and, therefore, except the statements of the appellant, there is no evidence to that effect. The appellants further stated that at the time the deceased was assaulting Mst. Khadija he was armed with a hatchet and he attacked Wali Muhammad with the sharp side of hatchet which stuck up in the clothes of Wali Muhammad. The deceased thereafter ran away after leaving the hatchet behind. The prosecution neither cross- examined the appellant nor Mst. Khadija on this point. The prosecution did not prove that there was any hatchet which was used by the deceased to attack appellant Wali Muhammad nor it was proved that his clothes had any mark of hatchet attack. At the trial the prosecution did not even bother to put -up the prosecution case in the cross-examination of the two appellants and Mst.
Khadija. On the other hand, the appellants when examined under section 340(2), Cr.P.C.
Categorically stated that they have not made any confessional statement and they were made to put thumb-impression under threat of disgracing their womenfolks. This evidence has been corroborated by the depositions of two D.Ws., namely Mst. Khadija and Imam Zadi the wives of the appellants.
22. In view of the above discussion the confessional statements cannot be treated as the true version of the incident and cannot be treated voluntarily.
23. Once the confessions which are the only evidence against the appellants are discarded the findings of the impugned judgment cannot be upheld.
24. There is no other evidence which would improve the case of the ID prosecution.
25. For the above reasons this appeal is allowed and the conviction of the appellants is set aside.
They be released immediately if not required inlE any other case.