1. Present appellant has challenged the judgment dated 25-3-1998, passed by the learned Additional Sessions Judge, Sanghar, in S.G. No-83 of 1997 under section 302, P.P.C. Bearing Crime No.01 of 1997, registered with Police Station Jhol, whereby the appellant has been convicted under section 302(c), P.P.C. For imprisonment for a period of 25 years. The accused has been further directed to pay compensation of Rs.25,000 (Rupees twenty-five, thousand) to the legal heirs of deceased and in case of default whereof to suffer R.I. For 3 years more. Appellant has been also given benefit of section 382-B, Cr.P.C. Hence this appeal.
2. Brief facts of the case are that on 7-1-1997 at about 9-15 p.m. The report of incident is lodged on 8- 1-1997 with Police Station Jhol. The F.I.R, of the incident was lodged by Nawab brother of the deceased. According to the contents of the F.I.R., complainant alongwith his brothers Mehrab and Rasool Bux resided jointly within the same hedge in Deh Ghundan, Taluka Sinjhoro. On the preceding night at about 9-00 p.m. Complainant, Mehrab and Rasool Bux after watching T.V.
3. Drama at the hotel of Ramzan Chang, came out and complainant and his brother Mehrab went to their house while their brother Rasool Bux went to the clinic of Dr. Baloach. Complainant was present in the house when at about 9-15 p.m. He noticed a gunshot fire towards the A'ara machine of Haji Qaimdin, on which complainant and his brother Mehrab alongwith other villagers inquired and noticing as usual thing went to their houses to sleep. It is further stated in the F.I.R. That on 8-1- 1997, Rasool Bux son of Darya Khan Chang came to the complainant at about 7-00 a.m. And narrated that his brother Rasool Bux is lying dead on the back side of A'ara machine of Haji Qaimdin Chang., On receipt of such information, complainant alongwith his brother Mehrab Dhani Bux Gabol, Manther Chang and Dildar Chang came to the place of incident and found Rasool Bux lying dead between the woods having pallet injuries on his head and blood was oozing out.
4. Complainant therefore, left the witnesses with the dead body and went to inform Rain A.I Khan, Nekmard of the village, who directed him to lodge the report end thereafter the F.I.R. Was registered at Police Station Jhol, that unknown persons due to unknown reasons had committed the murder of Rasool Bux by causing death with cartridge weapon.
5. Police after usual investigation finally sent up the present appellant he trial.
6. Prosecution at trial examined P.W.1 Dr. Aslam Parwaiz vide Exh.5, who had conducted the post- mortem examination over other dead body of the deceased and has produced a letter of police as Exh.5-A and post-mortem report as Exh.5-B. P.W.2 Nawab complainant vide Exh.6, who has produced F.I.R. As Exh.6-A, P.W.3 Amb vide Exh.7, who has produced the Mashirnama of place of incident as Exh.7-A, inquest report as Exh.7-B, Mashirnama of recovery of blood-stained clothes of deceased as Exh.7-C. Mashirnama of arrest of accused Bux A.I as Exh.7-D, Mashirnama of recovery of country-made pistol from the accused as Exh.7-E, P.W.4 a Memo. Vide Exh.8, who has produced his 164, Cr.P.C. Statement as Exh.8-A, P.W.5 Mir Muhammad vide Exh.9, who has produced his 164, Cr.P.C. Statement as Exh.9-A, P.W.6 Tapedar Muhammad Yousaf vide Exh.10. Who has produced the sketch of place of incident as Exh.10. P.W.7 P.C. Muhammad Jumman vide Exh.13. P.W.10 S.I.P. Amir Sultan vide Exh.14, who has produced the report of Chemical Examiner as Exh.14-A and P.W.11 S.W. P., Nazar Muhammad vide Exh.15 and then closed its side vide statement Exh.16.
7. Appellant Bakhsh A.I in his statement under section 342, Cr.P.C. Exh.17 has denied the commission of the offence and has pleaded his innocence. He has further pleaded that he was arrested on the first day alongwith other twenty persons who were let off while he is implicated in the case. He has declined to be examined on oath and did not cite any defence witnesses.
8. After hearing the learned counsel for the parties the trial Court passed the judgment in terms as stated above.
9. I have heard the learned counsel for the appellant and Mr. A.I Azhar Tunio, learned Assistant Advocate-General, Sindh, for the State and with their assistance I have gone through the evidence of the prosecution witnesses who have been examined b; the prosecution during the trial.
10. Admittedly ocular testimony is being furnished by P.W.4 Mevo Exh.8. P.W.9 namely Mir Muhammad and I have gone through their evidence very carefully. P.W. Mevo has deposed before the trial Court that on the day of incident there was a marriage of his daughter. He was feeling fever and went to Dr. Baloach for treatment and after getting injection he went to the hotel of Gullan at about 9-15 p.m. Then he went for urinating purpose when deceased Rasool Bux also came and sat at some distance from him for urinating purpose. Rasool Bux was sitting and P.W. Mevo heard the gunshot fire and saw appellant Bakhsh A.I after making fire at deceased Rasool Bux went running towards north. P.W. Mevo in 164, Cr.P.C. Statement which he has produced before the trial Court has stated that he heard gunshot fire and then witnessed accused Bakhsh A.I running away towards north.
11. P. W. Mir Muhammad has deposed before the trial Court that on the day of incident he was coming back to his village when he reached near the house of Leemoon Baloach he saw appellant Bakhsh A.I having a pistol in his hand and was running away. He inquired from him but he did not reply and ran away towards his house. He then went to his house and slept. Next morning he came to know that somebody has murdered deceased Rasool Bux on the back side of. A'ara machine of Master Qaimdin. He has further deposed that he came to know at the place of incident that appellant Bakhsh A.I due to suspicious of illicit relations between his wife and deceased has murdered Rasool Bux.
12. Complainant Nawab is not an eye-witness. The 'prosecution is resting its entire case on the evidence of P.W. Mevo who has stated before the trial Court that he saw the present appellant after firing running towards north. He has stated in 164, Cr.P.C. Statement that he heard gunshot fire and then witnessed appellant Bakhsh A.I rdnning away towards north and in these circumstances he cannot be said an eye-witness and his evidence is being uncorroborated by any other witness.
13. P.W. Mir Muhammad according to his evidence before the trial Court is not an eye-witness and he has only deposed that he had seen appe114nt having a pistol in his hand and was running away.
14. He inquired from him but who did not reply and ran away towards his house. According to this witness then he went to his house and slept and on next morning he came to know that somebody has murdered deceased Rasool Bux on back side of A'ara machine of Master Qaimdin and according to his evidence he is not an eye-witness. The case of the prosecution is that unknown assailants have murdered deceased Rasool Bux and this has been narrated by complainant Nawab in the F.I.R. Vide Crime No.1 of 1997.
15. I have also examined the statement of appellant under section 342, Cr.P.C. Which does not bear the signature of the accused and the certificate at the bottom is typed one signed by the Presiding Officer although the answers have been written by the learned trial Judge in his own handwriting under section 342, Cr.P.C. But the certificate has not been written in his own handwriting as required under section 364(2), Cr.P.C. There is no signature of the appellant on the statement under section 342, Cr.P.C. I have also examined the original record and thus there is a flagrant violation of section 364(2), Cr.P.C. Which is an illegality and is not curable under section 537, Cr.P.C. Learned counsel for the appellant has argued that in fact it is unwitnessed incident and P.W. Mevo has supported the case of prosecution only to the extent that he saw running appellant towards north and according to him it cannot be said that whether the present appellant fired on deceased or unknown person and he further elaborated his contention that it can be taken in that way that present appellant may have run after the real culprit who fired on deceased and the evidence of the P.W. Mevo is not inspiring confidence and he cannot be said as an eye-witness. Mr. Abdul Sattar Kazi has further submitted that P.W:. Mir Muhammad is not an eye-witness and he has only stated before the trial Court that he had seen the present appellant running away with a pistol and on the next morning he heard that deceased Rasool Bux has been killed by unkown assailant and according to Mr. Kazi the deceased Rasool Bux has been murdered by unknown assailants and the case against the present appellant is doubtful. According to him the complainant is on the hearsay evidence and he is not an eye-witness. He has further submitted that prosecution miserably failed to prove its case beyond reasonable doubt against the present appellant and has prayed for his acquittal.
16. On the other hand Mr. A.I Azhar Tunio learned Assistant Advocate-General Sindh for the State has supported the impugned judgment but has conceded that the illegality has been committed by the trial Judge while recording the statement of appellant under section 342, Cr.P.C. As the same does not bear the signature of the appellant and the certificate issued by the Presiding Officer is typed one and has not been written in his own handwriting.
17. I have considered the arguments rendered by the learned counsel for the parties and I have already discussed the case of the prosecution and admittedly there is only P.W. Mevo who has only stated before the trial Court that he saw present appellant running towards north which too he has stated in his 164, Cr.P.C. Statement and he cannot be called as an eye-- witness whereas P.W. Mir Muhammad is not an eye-witness. It is also case of prosecution that deceased Rasool Bux has been murdered by unknown assailants. I am of the considered view that the case against the appellant is doubtful and the prosecution has only placed reliance on the evidence of P.W. Mevo whose evidence is not inspiring-confidence and who is not an eye-witness which goes uncorroborated by any other witness and I have also very carefully examined the statement under section 342, Cr.P.C. And illegality has been committed by the trial Judge while recording the same under section 342, Cr.P.C. And there is a flagrant violation of section 364(2), Cr.P.C. And I give benefit of doubt to the appellant and accordingly set aside the conviction and sentence of the appellant. In result the appeal is allowed. The appellant shall be released forthwith if not required in any other case.