MST. REHANA BEGUM Versus KARAM HUSSAIN Allah Bachayo Soomro , Anwar Hussain Ansari for A.A. G.

1. The appellant has challenged the judgment, dated 10‑12‑1997, passed by learned Sessions Judge, Badin, in Sessions Case No.143 of 1991, whereby the appellant has been awarded imprisonment for life as a Ta'zir, hence this appeal.

2. Brief facts of the case are that on 21‑1‑1991 complainant Vikio son of Mooso Khaskheli lodged respondent at PP Tarai, stating therein that he works as landurer 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 alongwith 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. Sabul, 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 the 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 R.H.C., Tarai from where he was referred to Taluka Hospital Golarchi, from there the injured was referred to L.M.C., Hyderabad, where he sccumbed 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 F.C.M., 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 Exh.2 was framed against the accused on 13‑10‑1993, to which the accused pleaded not gulity and claimed to be tried. His such plea is recorded at Exh.3 on the record. Prior to that, the accused was supplied with necessary, documents vide receipt Exh.l, which is also available on record.

5. The prosecution in support of its case examined complainant Vikio as P. W.1 Exh.7, he produced F. I. R. for the case recorded in daily diary of PP Tarai as Exh.7‑A, P.W.2, Mst. Sabul as Exh.8. P.W.3, Haji as Exh.9. P.W. Khan Muhammad Jat, the then Medical Officer of Taluka Hospital, Golarchi as Exh.10, he produced the Medical Certificate of injured/deceased Loung as Exh.10‑A, P.W.5, Muhammad Ashraf the then Mukhtiarkar and FCM, Golarchi, who recorded the confessional statement of accused Raboo as Exh.13, he produced the confessional statement of accused as Exh. 13‑A. P.W.6 Muhammad Ramzan, the Mashir as Exh.14, he produced the Mashirnama of injuries as Exh.14=A, Mashirnama of arrest of accused Exh.14‑B, Mashirnama of clothes of deceased as Exh.14‑C, Mashirnama of place or incident as Exh.14‑D, and Danishitn4Tna as Exh.14‑E, P.W.7, Orangzeb the then Head Constable Market Police, Hyderabad as Exh.15, he produced a letter addressed to Medical Officer LMCH, Hyderabad for post‑mortem of deceased as Exh.16. Danishitnama Form as Exh.17, dead body form as Exh.18 and receipt regarding handing over the dead body to Ramzan son of Soomro Kashkheli‑for its burial as Exh.18. P.W.8 Dr. Javed Ali, the then M. O., Medical Legal Section LMCH, Hyderabad as Exh.19, he produced the post‑mortem notes as Exh.20. It may be mentioned here that during the tendency of this case. S.H.O., Sona Khan of Police Station 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 Exh.21, he returned the Bailable Warrants unexecuted and produced the same as Exh.22 and endorsement as Exh.23. After that, learned DPP/DA closed the side of prosecution vide his statement Exh.24 on the record.

6. Statement of accused under section 342, Cr.P.C. recorded as Exh.25; he denied the allegations of prosecution and further stated that he has not given confessional statement before the Mukhtairkar 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 Exh.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 Exh.2 gave up the D.Ws. and closed the defence side. It may mentioned here that on 22‑12‑1996 learned DDA moved application Exh.28 requesting therein that any police officer, who is well conversant with the signatures of late S.H.O. Sono Khan may be called as he had died. Notice or this application was given to learned defence counsel. On 13‑7‑1997, the said application Exh.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 S.H.O. Sono Khan. One HC Muhammad Ali was examined as P.W.10 was Exh.29, who is said to be well conversant with the signatures of late S.H.O. Sono Khan, he produced Mashirnama of securing of hatchet from the head 'of deceased as Exh.30. In his deposition, he stated that Exhs.7‑A, 14‑A, 14‑B, 14‑C, 14‑D, 14‑E and 30 bear signatures of late S.H.O. Sono Khan. Th4t deceased S.H.O. Sono Khan was known to him as he has worked under his subordination as Head Moharar at Police Station, Kario Ganhwar he is well conversant with his handwriting as well as signature.

8. After that the learned D.D.A. closed the side of prosecution vide his statement Exh.32 on the record learned defence counsel also filed a statement Exh.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 Exh.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 it 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 LTI: at the end of recording his statement, he was also threatened of maltreatment. About the P.Ws. he has stated that no P.W. has deposed against him: he is innocent and the prosecution story is unbelievable that he has been putting up with his step‑father, the deceased, since his childhood: 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 is pending against hip mother in the Court of Senior Civil Judge, Golarchi some time he put: signatures, whereas some time he puts his LTI: he is educated up 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 Exh.35 stating therein that ii 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 ordered to be kept on record.

11. Learned trial Court formulated the following points for determination:

(1) Whether deceased Loung,Khaskheli has died unnatural death as a result of hatchet blow caused at his head?

(2) If finding on Point No.l 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 Qatal‑i‑Amd of deceased Laung? If so, what punishment awarded to the accused will be sufficient to meet the ends of Justice?

(4) What should the order be?

12. Having gone through the evidence adduced by the prosecution and other material available on record, learned Sessions Judge, Badin passed the judgment in terms as stated above.

13. I have beard Mr. Allah Bachayo S6omro, learned counsel for the appellant. Mr. Muhammad Azeem Panhwar, learned State Counsel and have gone through the evidence adduced by the prosecution.

14. Mr. Allah Bachayo Soomro, learned counsel for the appellant has argued that the ocular evidence is being furnished by complainant Vikio. Mst. Sabbul 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. Sabbul, 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. Sabbul. 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 parameter 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 next day of incident i.e. 31‑10‑‑1991 whereas the incident has taken place on 30‑11‑1991 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. Sabbul and he was annoyed over her marriage with deceased Loung and such motive is not being established by the prosecution.

15. On the other hand, learned State Counsel has not supported the contention of Mr. Allah Bachayo Soomro although he agreed that Vikio complainant and Haji are not the eye‑witnesses 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.

16. 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. Sabbul 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 courtyard opposite to the room where Loung and Mst. Sabbul were sleeping. At about 4‑30 or 5‑00 a.m., he heard cries of Mst. Sabbul; he went to the place of incident and asked Mst. Sabbul 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 eye‑witness. P.W. 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 P.W. Haji has not seen the incident, he has narrated the facts of the incident by complainant and his evidence is on the footing of hearsay evidence, which is not believable under the law.

17. P.W. Sabbul 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 forehead of her husband Loung, the hatchet was stuck in the forehead: she has 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. Sabbul is not an eye‑witness.

18. In order to sum up the evidence of the prosecution witness, it can be said, easily that it is unwitnessed 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. Sabbul, Haji is a witness of hearsay 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.

19. As far as judicial confession 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. 31‑10‑1.991 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.

20. 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 Ist 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 PCr.LJ 611. I have also seen the handwriting of Mukhtiarkar and FCM E 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 PCr.LJ 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 maltreatment by the police and was 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 PCr.LJ 611.

21. 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 F.I.R. 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 II Court in 1995 SCMR 1345 that if a single circumstance creates doubt in the prudent mind, the benefit of doubt goes to the accused and not to the prosecution as a matter of right not as a matter of grace.

22. In view of the above discussion I am of the considered view that the case 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 E not required in any other case.

23. The above are the reasons of my short order.

24. N.H.Q./R‑54/K Appeal allowed.