FAIZ MUHAMMAD QURESHI, J.- The appellant has challenged the judgment dated 10.12.1999, passed by learned Sessions Judge Badin, in Sessions Case No. 143 of 1991, whereby the appellant has been awarded imprisonment for life as a Tazir, hence this appeal.
2. Brief facts of the case are that on 31.1.1991 complainant Vikio son of Mooso Khaskheli lodged report at PP Tarai station therein that he works as labourer in Tarai Town; deceased Loung is the cousin of the complainant, who was running a Hotel in Tarai Town. According to the complainant, on the night of incident deceased Loung along with his children was sleeping in one room, whereas the complainant was sleeping in another room. At about 5.30 a.m. Complainant heard cries, on which he went to the room where deceased was sleeping. On the light like bulb he saw accused Raboo causing hatchet blow on the head of deceased: in the meantime, Mst. Sabbul, wife of deceased, also came there: on sustaining hatchet injury, deceased fell down and the hatchet stuck in the head of the deceased whereas accused Raboo ran away from the place of wardat. The complainant has further stated that accused Raboo is the step son of the deceased, who was displeased of such marriage of his mother with deceased Raboo, hence he attacked upon the deceased. The report was subsequently incorporated in 154, Cr.P.C. Book as Crime No. 35 of 1991.
3. After registration of the F.I.R, deceased who was in injured condition was referred to RHC Tarai from where he was referred to Taluka Hospital Golarchi, from there the injured was referred to LMC, Hyderabad, where he succumbed to injuries. Police also started investigation and arrested accused Raboo on 6.11.1991 and after the completion of the investigation the case was challaned in the Court of Civil Judge and FCM Badin on 21.11.1991 and thereafter it came on the file of the Sessions Judge Badin for disposal in accordance with law.
4. Charge Ex.2 was framed against the accused on 13.10.1993, to which the accused pleaded not guilty and claimed to be tried. His such please is recorded at Ex.3 on the record. Prior to that the accused was supplied with necessary documents vide receipt Ex.1 which is also available on record.
5. The prosecution in support of its case examined complainant Vikio as PW-1, Ex.7 he produced FIR of the case recorded in daily diary of PP Tarai as Ex.7-A, PW-2 Mst. Sabul as Ex.8, PW-3 Haji as Ex.9.
PW Khan Muhammad Jat, the then Medical Officer of Taluka Hospital Golarchi as Ex.10, he produced the Medical Certificate of injured/deceased Loung as Ex. 10-A., PW-5 Muhammad Ashraf, the then Mukhtiarkar and FCM Golarchi, who recorded the confessional statement of accused Raboo as Ex.
13, he produced the confessional statement of accused as Ex. 13-A, PW-6 Muhammad Ramzan, the mashir as Ex. 14, he produced the mashirnama of injuries as Ex. 14-A, mashirnama of arrest of accused Ex. 14-B, mashirnama of clothes of deceased as Ex. 14-C, mashirnama of place of incident as Ex.14-D, and Danishitnama as Ex.14-E, PW-7' Orangzeb the then Head Constable Market Police Hyderabad as Ex. 15, he produced a letter addressed to Medical Officer LMCH; Hyderabad for post- mortem of deceased as Ex.16. Danishitnama form as Ex.17, dead-body form as Ex. 18 and receipt regarding handing over the dead-body to Ramzan son of Soomar Kahshkheli for its burial as Ex. 18.
PW-8 Dr. Javed Ali, the then M.O. Medico-Legal Section LMCH, Hyderabad as Ex. 19, he produced the post-mortem notes as Ex.20. It may be mentioned here that during the pendency of this case, SHO Sono Khan of PS Kario Ganhwar had expired, therefore, statement of process-server on oath was ordered to be recorded. The statement of process-server Qadir Bux LMC PP Tarai was recorded as Ex.21, he returned the bailable warrants un-executed and produced the same as Ex.22 and endorsement as Ex.23. After that, learned DPP/DA closed the side of prosecution vide his statement Ex.24 on the record.
6. Statement of accused under Section 342, Cr.P.C, was recorded as Ex.25: he denied the allegations of prosecution and further stated that he has not given confessional statement before the Mukhtiarkar and FCM Golarchi: he further added that witnesses of this case are interested: he was taken from School and falsely implicated in this case: defence plea of accused is recorded as Ex.26, which is on the-record, in which he has given names of two witnesses as, defence witnesses and requested for their examination.
7. However, learned defence counsel vide his statement Ex.27 gave up the D.Ws. And closed the defence side, It may be mentioned here that on 22.12.1996 learned DDA moved application Ex.28 requesting therein that any police officer, who is well conversant with the signatures of Late SHO Sono Khan may be called as he had died. Notice of this application was given to learned defence counsel. On 13.7.1997, the said application Ex.28 was allowed by consent and the letter was ordered to be written to Senior Superintendent of Police, Badin, for directing any official/police officer to attend the Court and verify the signatures of Late SHO Sono Khan. One HC Muhammad Ali was examined as PW-10 as Ex.29, who is said to be well-conversant with the signatures of late SHO Sono Khan, he produced mashirnama of securing of hatchet from the head of deceased as Ex.30. In his deposition, he stated that Exs.7-A, 14-A, 14-B, 14-C, 14-D, 14--E SHO Sono Khan was known to him as he has worked under his sub-ordination as Head Moharar at Police Station Kario Ganhwar: he is well-conversant with his hand-writing as well as signature.
8. After that the learned- DDA closed the side of prosecution vide his statement Ex.32 on the record, learned Defence counsel also filed a statement'Ex.33, stating therein that he does not want to, lead any evidence in defence and closed the side.
9. Fresh statement of accused under Section 342, Cr.P.C, was recorded as Ex.34; he denied the allegations of prosecution and further stated that no confessional statement was given by him: such statement, if any, on the record, was the result of coercion, maltreatment by the police and he was obtained by force after 8 days of his arrest and it was also not read-over to him by the Mukhtiarkar and FCM; Police remained present in the office of Mukhtiarkar where his statement was recorded: the confessional statement was dictated by police to Mukhtiarkar: he was asked to put his CT1: at the plot of recording his statement, he was also threatened of maltreatment. About the PWs he has stated that no PW has deposed against him: he is innocent and the prosecution story is un-believable that he has been putting up with his stepfather. The deceased, since his child-hood: he cannot imagine to murder him: he had great love and respect for the deceased as he was brought up by him': the complainant, who was relative of his step-father had evil eye upon his mother: he was supposed to be hindrance in his evil designs, as such he has been falsely implicated by the complainant: the accused had no enmity with his deceased father: the deceased had disputes with some Noohani's over the plot and a Suit of Noohani's is pending against his mother in the Court of Senior, Civil Judge, Golarchi: some time he puts signature, whereas some time he puts his LTI: he is educated upto fifth class. That he had put his LTI on his identity card at the instance of his mother, However, he has neither examined himself on oath nor offered any defence to make clear this point.
10. Learned DDA filed an Application Ex.35 stating therein that it has been observed from the perusal of the Court record^that on some papers the accused has signed and on confessional statement accused had put his LTI. Thereafter he requested that photocopy of NIC of accused be kept on record. Photocopy of NIC was prepared to be kept on record.
Learned Trial Court formulated the following points for determination:
(1) Whether deceased Loung Khaskheli has died un-natural death as a result of hatchet blow caused at his head?
(2) If finding on Point No. 1 is in "affirmative" then whether accused Raboo son of Loung Junejo, the present accused is the person, who caused said injury to deceased Loung Khaskheli as a result of which he expired in the Hospital?
(3) If finding on Point No. 2 is in "affirmative" then whether accused Raboo is guilty of Qatl-I-Amd of deceased Loung. If so, what punishment awarded to the accused will be sufficient to meet the ends of justice?
(4) What should the Order be?
Having gone through the evidence adduced by the prosecution 4 and other material available on record, learned Sessions Judge Badin passed the judgment in terms as stated above.
11. I have heard Mr. Allah Bachayo Soomro, learned counsel for the appellant. Mr. Muhammad Azeem (sic) learned State counsel and have gone through the evidence adduced by the prosecution.
12. Mr. Allah Bachayo Soomro, learned counsel for the appellant has argued that the ocular evidence is being furnished by complainant Vikio. Mst. Sabul and P.W. Haji. He has further stated that complainant Vikio and Haji are not the eye-witnesses which is evident from their deposition.
According to him the main witness Mst. Sabul, who is the wife of deceased Loung has not supported the case of the prosecution and therefore, the whole case of the prosecution has been shattered after the examination of Mst. Sabul. He has further argued that there is another piece of evidence against appellant in the shape of judicial confession, which is said to have been recorded on 7.11.1999. According to Mr. Allah Bachayo Soomro, learned counsel for the appellant such judicial confession has not been recorded in accordance with the para-meter laid down by the superior Courts. He has further argued that in fact the judicial confession has been recorded after seven days as the present appellant has not been arrested on 6.11.1991 but he was arrested on the same day of incident i.e. 31.10.1991 whereas the incident is taken place on 30.1 1.1-991 and in this respect he has drawn my attention on evidence of mashir Muhammad Ramzan on page 58 of paper book who has stated before the Trial Court that the accused was arrested on the next day of incident.
Thus according to. Him, the judicial confession is unreliable. He has touched upon motive and contended that since the appellant is the step-son of Mst. Sabul and he was annoyed over her marriage with deceased Loung and such motive is not being established by the prosecution.
13. On the other hand, learned State Counsel has not supported the contention of Mr. Allah Bachayo Soomro although he agreed that Vikio complainant and Hafi are not the eyewitnesses whereas even star witness has not supported the case of the prosecution, yet the accused can be convicted and sentenced on the basis of judicial confession, which is genuine and opposed the acquittal of the appellant.
14. Admittedly, it is a case of prosecution that incident has taken place in the house of Vikio, where deceased Loung was sleeping and his wife Mst. Sabul was also available there, I have seen the evidence of Vikio, who has deposed before the Trial Court that Loung and his wife Mst. Sabul were sleeping in one room whereas he was sleeping in another room, which is at a distance of about 50 paces. Accused Raboo was sleeping in the court-yard opposite to the room where Loung and Mst.
Sabul were sleeping. At about 4.30 or 5.00 a.m. He heard cries of Mst. Sabul he went to the place of incident and asked Mst. Sabul as to what happened, to which she replied that accused Raboo had inflicted hatchet injury and accused Loung ran away. From this trend of the evidence it is quite clear that Vikio (complainant) is not an eyewitness. PW Haji in his evidence stated that on the day of incident he had gone Tarai Town and was told by Vikio that accused Raboo had inflicted hatchet injury to Loung and thereafter he ran away. Even the PW Haji has not seen the incident, he was narrated the facts of the incident by complainant and his evidence is on the footing of hear-say evidence, which is not believable under the law.
15. PW Sabul, who is wife of deceased is main witness being nominated by the prosecution, who has stated before the Trial Court that on the day of incident at 5.00 a.m. At morning time, she heard the cries of her husband Loung and she woke-up and saw hatchet injury on the fore-head of her husband Loung, the hatchet was stuck in the fore-head: she had not seen any person at the place of-incident: she has been declared hostile by the prosecution but nothing extracted from her mouth to establish the case of the prosecution. So the main witness Mst. Sabul is not an eye- witness.
16. In order to sum-up the evidence of the prosecution witness, it can be said easily that it is un- witnessed incident. The evidence of complainant Vikio is that he was told by Mst. Sabul that accused Raboo caused hatchet injury to her husband Loung but at the same time, he is not being supported by Mst. Sabul. Haji is a witness/hear-say evidence, which is weakest type of evidence under the law. So the case of the prosecution is lacking with regard to ocular testimony and in that event the benefit of doubt goes to the accused.
17. As far as judicial confessional is concerned, it appears from the evidence of mashir Ramzan, who is the witness of the prosecution that accused was arrested on the next day of incident i.e. 31.10.1991 whereas the incident has taken place on 30.10.1991 and his judicial confession has been recorded on 7.11.1991 although it is claim of the prosecution that accused has been arrested on 6.11.1991 and on the next day his judicial confession has been recorded but the evidence of mashir Ramzan has caused a crushing blow to the case of the prosecution, on the point of arrest and it can be said that there is delay of 7 days in recording the judicial confession of the accused.
18. I have examined the evidence of the Mukhtiarkar and IIIrd Class Magistrate Muhammad Ashraf, who in his cross- examination has admitted that the judicial confession has not been written by him. He has not informed the accused that he is 1st Class Magistrate. He had not inquired from the accused about his arrest. The confession has been recorded on the basis of the letter produced by the Police wherein no number is mentioned. Reliance can be placed to a case, reported in 1984 P.Cr.L.J. 611. I have also seen the handwriting of Mukhtiarkar and FCM on the judicial confession, who has remanded the accused after his statement to Police Station Shaheed Fazal Rahu through Head Constable Abdur Rehman and PC Wasayo, I have also seen that the judicial confession has not been recorded in the light of the decision given by a Division Bench of this Court, reported in 1984 P.Cr.L.J. 611. I have also seen the statement of accused recorded under Section 342, Cr.P.C, who has categorically stated before the Trial Court that he has not given statement before any Magistrate. If any, on record is the result of coercion and mal-treatment by the police and has obtained by force after 8 days of my arrest and the same was not read over to me by Mukhtiarkar and FCM. He has further stated that Police has remained present in the office of Mukhtiarkar where the statement was recorded and was dictated by police to Mukhtiarkar. He was asked to put his signature/LTI. At the time of recording of his statement, he was threatened for maltreatment. This statement under Section 342, Cr.P.C- of the accused shows that there is retraction on the part of the accused and once again I am being fortified by law, reported in 1984 P.Cr.L.J. 611.
19. The motive is not being established by the prosecution itself. Moreover, it is double-edged weapon which cuts both the ways. I have also seen that no FIR has been produced and only entry has been produced, which is available at page 37/38 of the paper book. The prosecution has failed to establish its case against the appellant. There is doubt in the case of the prosecution, It is held by the Hon'ble Supreme Court in 1995 SCM R 1345 that, if a single circumstance creates doubt in the prudent mind, the benefit of doubt goes to the accused and that the prosecution as a matter of right not as a matter of grace.
20. In view of the above discussion, I am of the considered view that the ease of the prosecution is doubtful against the appellant, I give benefit of doubt to accused, his conviction and sentence are set aside, in result the appeal is allowed, the appellant shall be released forthwith, if not required in any other case.
The above are the reasons of my short order.