1. ' Appellants Mithal and Rano have assailed the judgment dated 26-6-2000 passed by the learned 1I-Additional Sessions Judge, Jacobabad, whereby they were convicted for an offence punishable under section 302(b) read with 34, P.P.C. And awarded imprisonment for life and fine of Rs,50,000 each; in case of non-payment of fine each of them was to suffer simple imprisonment for one year more.
2. ' The case of prosecution as disclosed in the F.I.R. Lodged by complainant Muhmeed at Police Station Thull on 27-10-1995 is that, on 26-10-1995 complainant Muhmeed, his brother Janoo and cousin Dilmurad were sleeping in the courtyard of their house when they woke up on the barking of dogs and on flashing torch found appellant Mithal armed with gun standing over his brother Ahmed while his son appellant Rano was also present there carrying a gun. Accused Mithal tired a shot from his gun directly at Ahmed which hit him. The complainant party challenged the appellants on which Mithal cautioned them not to approach them as he has murdered Ahmed declaring him as 'Karo' with his wife Mst. Sakina. The complainant party was empty-handed, they did not follow the culprits due to fear. Both the assailants went to their house from where the complainant party heard fire-arm reports. The complainant party rushed to the house of Mithal where Mithal told them that he has murdered his wife Mst. Sakina declaring her 'Kari'. The assailants ran away. The complainant party returned to their house where they saw that Ahmed was dead having a gun shot injury on left side of chest, he was bleeding. Afterwards they went to the house of appellant Mithal and found that Mst. Sakina had fire-arm injuries below her right breast and was dead, she was also bleeding. On account of non-availability of conveyance the complainant stayed in his house and in the morning appeared at Police Station where he lodged F.I.R. Which was recovered by A.S.-I. Bilawal.
3. ' The Investigating Officer inspected the site, secured the dead bodies and forwarded them to hospital, after holding inquest, for postmortem examination. He secured blood-stained earth and an empty of .12 bore from the place where Ahmed was killed. On 1-11-1995 he arrested appellant Mithal and secured gun on his pointation from bushes near the house. On the same day accused Rano surrendered voluntarily and he was put under arrest. He also examined the witnesses and after completing the investigation put up the challan.
4. ' At the trial, formal charge was framed against the appellants for offence of Qatl-e-Amd, to which, they pleaded not guilty and claimed trial. The prosecution in support of charge examined 8 witnesses namely P.W.1 Sher Ali, the Tepedar who had prepared the sketch of site; P.W.2 Dr. Muzaffar Ali who had conducted autopsy of both the dead bodies; P.W.3 Ali Sher, the Mukhtiarkar and First Class Magistrate, Thull who had recorded confession of appellant Mithal; three eye-witnesses namely P.W.4 Mahmeed, the complainant P.W.5 Dilmurad and P.W.6 Jan Muhammad; P.W.7 Shahban, the Mashir of site inspection, arrest and recovery etc. And lastly P.W.8 Ali Bilawal the Investigating Officer. Statements of both the appellants were recorded under section 342, Cr.P.C.
5. Wherein they came up with bare denial. No defence was led by them nor did they examine themselves under section 340, Cr.P.C. After hearing the learned counsel for the parties and on assessm ent of evidence on record, the learned trial Court convicted the appellants and awarded them sentence as stated earlier.
6. ' The appellants have preferred this appeal from jail and they have been called from Central Prison, Sukkur. They state that they are not able to engage an Advocate and their matter may be decided.
7. They submitted that they deserve utmost concession. I have heard Mr. Sher Muhammad Shar learned Assistant Advocate-General and with his assistance gone through the entire material placed on record.
8. ' The prosecution in order to substantiate the charge had produced the following piece of evidence:--
(1) Ocular evidence of P.W.4 Mahmeed, the complainant, his cousin Dilmurad P.W.5 and his brother P.W.6 Jan Muhammad.
(2) Medical evidence through Medical Officer P.W.2 Dr. Muzaffar.
(3) Judicial confession of appellant Mithal.
(4) Recovery of crime empty from the place of incident and gun from appellant Mithal.
(5) Evidence of motive through eye-witnesses.
(6) Other circumstantial evidence such as recovery of blood-stained earth from place of incident.
(7) Extra-judicial confession of Mithal.
9. The ocular evidence, on perusal, is found to be strong enough to support the case of prosecution.
10. The version given by Dilmurad, Jan Muhammad and Mahmeed is that while they were sleeping in the courtyard they woke up on the barking of dogs and saw accused Mithal and Rano having guns in their hands standing near the cot of Ahmed. Within their seeing appellant Mithal fired shot from his gun which hit him. Mithal also shouted that he has declared his wife Mst. Sakina as `Kari' with Ahmed. They did not chase the appellants due to fear but subsequently when they heard fire-arm report from the house of appellant Mithal, which was not far away and according to Tepedar P.W.1, it was at the distance of 330 feet from the house of complainant party, they rushed to the house of appellant Mithal where the appellant made extra-judicial confession saying that he had killed his wife Mst. Sakina as she was 'Kari' with Ahmed. They returned back. The complainant party found that Mst. Sakina was dead and she was bleeding and Ahmed was also dead.
11. All these eye-witnesses were extensively cross-examined and put suggestions which they simply denied. Regarding P.W. Janoo, the complainant had not concealed the fact that he was resident of a different place but had visited them and was staying there as he was complainant's cousin. In normal course of life visits by relatives cannot be doubted and if at all any benefit was to be drawn from this position such material should have come on record that Janoo had motive to implicate the appellant falsely and had had absolutely no reason to be present there. A simple story has been given in few words unmistakably and all these witnesses have not come forward with any discrepancy in their evidence therefore, there is no reason to discard their testimonies.
12. ' Secondly, their version is corroborated by the evidence of recovery of blood-stained earth and presence of dead bodies which were secured by Investigating Officer soon after the lodging of F.I.R.
13. Their testimonies are again supported by the medical evidence. According to the Medical Officer, Dr. Muzaffar who conducted post-mortem examination of the dead bodies, he found following injuries on the bodies of Ahmed and Mst. Sakina: ' Injuries on the body of Ahmed
(1) Lacerated punctured wound 2x2 c.m. With blackening with inverted margins wound of entrance at 4th rib latterly left side.
14. ' Injuries on the body of Mst. Sakina
(1) Lacerated punctured wound 2x2 c.m. With inverted margins wound of entrance at left side of chest latterly at 4th rib (blackening).
(2) A lacerated punctured wound 2x2 c.m. On left chest below left right breast W. Entrance.
(3) A lacerated punctured wound 1xl c.m. Through and through on right elbow-joint.
(4) A lacerated punctured wound lx1 c.m. Through and through on right shoulder.
15. ' He had found blackening on the body of Ahmed who had only one injury caused by fire-arm and had also found blackening on main injury on the chest of Mst. Sakina. The timings of death given by him also conform to the prosecution story thereby corroborating the testimonies of abovesaid eye-witnesses.
16. ' The eminent piece of evidence produced by the prosecution in support of eye-witnesses is the judicial confession recorded by Mukhtiarkar and First Class Magistrate Ali Sher P.W.3. His evidence shows that on the day of arrest of appellant Mithal, he had recorded the judicial confession. He had issued all warnings to the appellant in the first instance and disclosed his identity as a Magistrate and assured the appellant that he would not be returned to police. He had clarified to the appellant that confession could be used against him. He allowed him two hours' time for reflection and repeated the same warnings which he had given earlier. He then recorded the confession wherein the appellant admitted, that, on the fateful night when he got up, he found his wife Mst.
17. Sakina missing. After searching her here and there he located her behind a shelter and found her in objectionable position with Ahmed. He picked up his gun but Ahmed ran away to his house; he went there and fired a shot at Ahmed and killed him whereafter he returned and killed his wife. This confession has been recorded on the same day and apparently there are no flagrant violations of rules relating to recording of confession and there seems to be no reason to assume that some body has pressurized the accused or managed false confession through a Magistrate. The confession seems to be voluntary. It is also true and can be accepted in its entirety. The maker of confession wholly inculpates himself and the case has entirely proceeded in the direction that appellant Mithal was solely responsible for killing his wife and also deceased Ahmed declaring them `Kari-Karo'. No doubt an additional version has come through the witnesses that appellant Rano was also accompanying his father Mithal when shots were fired at Ahmed and this part of the prosecution story is missing in the judicial confession but then this drawback alone does not absolve appellant Mithal of his exclusive liability made out from this confession. Confessional statement cannot be held to be untrue as long it does not display any version exculpating the maker. Merely because the prosecution witnesses had seen the accused at the time of first incident would not cast any doubt on the truth of the judicial confession. I am therefore, persuaded to agree that the judicial confession is true and on the whole there is no reasonable ground to disbelieve this piece of evidence.
18. ' As regards the recovery of crime empty arid gun, no report of Ballistic Expert has been placed on record, the same has therefore become meaningless.
19. ' The Chemical Examiner's report has, however, been produced which supports the case of prosecution corroborating the version of eyewitnesses about the fact and place of incident from where the same was collected. The evidence of extra-judicial confession has also come on record as in presence of all the three eye-witnesses appellant Mithal had admitted that he killed his wife Mst. Sakina declaring her 'Kari' with Ahmed.
20. ' Mr. Sher Muhammad Shar, learned Assistant Advocate-General submitted that the prosecution has placed on record reliable evidence ocular and circumstantial supported by judicial confession against appellant Mithal and the finding of conviction by the learned trial Court against appellant Mithal may be maintained. Regarding the role of appellant Rano, he submitted that, although his presence is spoken about by the eye-witnesses but actually no role of making a fire even in the air has been assigned to him; nor has he uttered a word as to what he was intending to do. Besides, his presence is not shown at the second place of incident therefore, a case of slight doubt has been made out which may be extended to him. The submissions made by the learned Assistant Advocate-General are convincing and I fully agree with him that in the absence of any active role demonstrating some overt act appellant Rano may not be saddled with liability of Qatl-e-Amd of deceased Ahmed. It would be advantageous to quote that he was not even seen when the witnesses rushed to the house of appellant Mithal where the later had committed murder of his wife Mst. Sakina. The judicial confession being eminent piece of evidence also does not implicate him. The element of doubt thus created be resolved in his favour.
21. ' In view of the above discussion I am inclined to conclude that the offence of Qatl-e-Amd is made out against the appellant Mithal and following Ole principle laid down in the case of Abdul Haque v.
22. The State (PLD 1996 SC 1) the view taken by the trial Court is also affirmed to the extent that there are mitigating circumstances and the appellant is liable to punishment as Tazir within the meaning of section 302 (b), P.P.C. The conviction of Mithal and the sentence accordingly are maintained. The sentence of fine is however not maintained. As regard appellant Rano a slight doubt has been created and the benefit thereof is extended to him. His appeal is allowed and he is acquitted of the charge. He may be released forthwith.