PANDHI Versus STATE
1. Appellants abovenamed, being aggrieved by judgment dated 30th October, 1983 of the learned First Additional Sessions Judge, Tharparkar, at Mirpurkhas, in Sessions Case No. 69 of 1979, whereby appellants were convicted under section 302/324, P. P. C. read with section 34, P. P. C. and sentenced to suffer imprisonment for life and to pay fine of Rs. 1,000 each or in default to suffer further R.I. for six months and also were directed to pay compensation of Rs. 5,000 and Rs. 1,000, respectively to injured Tagio or in default to suffer further R. I. for six months and 3 months respectively, have preferred the above appeal, on the following facts and grounds.
2. At 11.00 p. m. on 30th June, 1979 Piaro Khan son of Behram Khan Leghari lodged the F. I. R. of this case at Police Station Taluka Mir. purkhas, stating therein that on that night while he, P. W. Dossan (Dost Muhammad and P. W. Khanoo (Khan Muhammad) had been sitting in his Otaq in village Hussain Bux Malkani, at about 9.00 p. m. on the southern side, they beard cries of Qaiser Khan and Tagio Khan, who lived in the same village and had gone to attend the turn of water at the land of their Zamindar Qaim Khan in Deh 247. That they went running towards the southern side and saw in the torchlight flashed by informant Piaro, appellant Pandhi, Dodo and co-accused Muhammad Khan, on the path near the watercourse, running towards the west, with hatchet in their hands. That they found Qaiser and Tagio lying on the ground, bleeding from their head injuries. That on their inquiry the injured told them, that while they had been looking after the water at the watercourse, all the three appellants as well as co-accused came there armed with hatchets, and asked them why in spite of being forbidden, they had no desisted from passing along their village, whereupon they told the appellants as well as co-accused that it was a thoroughfare for going to Mirpurkhas and that they would go by it, that on such reply of their all the three appellants as well as co-accused abused them and gave sharp side hatchet blows on their heads. They further told the informant and P. Ws. that seeing them coming, the appellants as well as co-accused persons ran away alongwith their hatchets. The informant, then got the two injured carried to the P. S. taluka Mirpurkhas and lodged the F. I. R. as mentioned above.
3. A. S. I. Ilyas Manzoor recorded the F. I. R. (Exh. 6-A) and investi gated the case. He examined injured Qaiser and Tagio Khan and prepared the Mashirnamas of their injuries (Exhs. 10-A and 10-B), in presence of Mashirs Imam Bux and Mevo. He referred both the injured to the hospital for examination, treatment and certificate. At about 2-00 or 3.00 a. m. on the same night appellant Pandhi went to the Police Station Taluka and lodged his report there A. S. I. Ilyas Manzoor recorded such report (Exh. 14-B) in the daily diary and arrested appellant Pandhi under Mashirnama (Exh. 10-C); in presence of the above-said Mashirs. On the following morning be visited the place of the incident and prepared the Mashirnamas of Vardat (Exh. 10-D), in presence of the same Mashirs. He examined P. Ws. Khan Muhammad and Dost Muhammad there and arrested appellant Dodo and co-accused Muhammad Khan from village Bachal Shah under Mashirnamas Exhs. 10-E and 10-F in presence of the same Mashirs. After their arrest each one of the appellant as well as co-accused produced a washed hatchet from his house in village Bachal Shah. The A. S. I. secured and sealed the same in presence of the said Mashirs under Mashirnamas Exhs. 10-G, 10-H and 10-I and released the appellants as well as co-accused on bail. On 3rd July, 1979 on receipt of the information, that injured Qaiser Khan had expired in the hospital, he went there and prepared the Mashirnama of the dead body and inquest report (Exhs. 5-A and 5-B, respectively), in presence of Mashirs Muhammad Hayat and Muhammad Hashim. He then handed over the dead body to P. C. Muhammad Yousuf for delivering it to the Medical Officer for post -mortem examination. On the same day he re-arrested the appellants as well as co-accused persons as the case against them was converted into a murder case. On 8th July, 1979 he got recorded the 164, Cr. P. C. statement of P. Ws. Tagio Khan, Khan Muhammad and Dost Muhammad before the Mukhtiarkar and F. C. M., Mirpurkhas. On return to the Police Station, in presence of mashirs Mevo and Imam Bux he secured under mashirnama Exh. 10-K two spades, two lanterns and one torch produced before him by informant Piar. Thereafter he handed over the case papers to the S. H. O., who sent the blood-stained articles to the Chemical Examiner and sent up the three appellants as well as co-accused to the Court of Joint Civil Judge and F. C. M. Mirpurkhas on 19th July, 1979 to stand their tri4 1 for offences punishable under sections 302, 504, and 324, P. P. C. read with section 34, P. P. C.
4. The offence under section 302, P. P. C. being exclusively triable by the Court of Sessions, the Joint Civil Judge and F. C. M., Mirpurkhas sent the case to the Court of Sessions at Mirpurkhas, from here it was received by the trial. Court by way of transfer for trial of the appellants as well as co-accused.
5. At their trial before trial Court a charge for offences under sections 302, 324 and 504, P. P. C. read with section 34, P. P. C. was framed against the appellants as well as co-accused. They pleaded not guilty to the charge.
6. In support of its case, the prosecution examined the following wit nesses:-
(1) Muhammad Hayat (mashir of dead body and inquest report) ..Exh. 5
(2) Piaro Khan (Informant) . Exh. 6
(3) Dost Muhammad Exh. 7
(4) Tagio (Injured) ................................Exh. 9
(5) Mevo Khan (Mashir) ...Exh. 10
(6) Imam Bux (Mashir) ........................... Exh. 13
(7) A. S. I. Ilyas Manzoor (I. O.) .......................Exh. 14
(8) Dr. Faiz Muhammad .Exh. 16
(9) Mithoo (Clerk, Office of the D. C., Mirpurkhas) Exh. 18
(10) Saeed Han (Tapedar) Exh. 19
7. The A. P. P. gave up P. Ws. Khan Muhammad and P. C. Muhammad Yousuf (corpse-bearer) and closed the prosecution side, vide his statement Exhs. 8, 11 and 22, respectively.
8. In their statement under section 342, Cr. P. C. the appellant generally denied the prosecution allegations against them. Appellants Pandhi and Dodo, however, admitted to have made the judicial confession but they stated that it was neither true nor voluntary. In the written statement submitted by appellant Pandhi, it was alleged that he and the other accused were wrongfully detained at the Police Station from 1st to 5th July, without any remand. That the S. H. O. had promised to release his brother co-accused Muhammad Khan if, he and Bodo made confession of his choice. That his confession and the confession of Dodo were recorded within the hearing of each other, and after that they were sent back to the police. He denied to have filed any counter-report and alleged that it was manoeuvred by the S. H. O., who was friend of Qaim Khan. He further stated, that he and appellant Dodo were haris of Syed Ali Hassan Shah. That they and their said Zamindar had worked for Syed Imam Ali Shah, who had defeated Ilahi Bux Malkani brother of Qaim Khan, the Zamindar of P. W. Tagio and deceased Qaiser Khan in the District Council Election. That Qaim Khan, whose Munishi Informant Piaro was, was annoyed with them (i.e. the appellants as well as co-accused) and for that reason he falsely got them implicated in this case. About his injury appellant Pandhi stated, that he had received it at the hands of the police and that he had no injury at the time of his arrest. Appellant Dodo adopted the further statement of appellant Pandhi.
9. The appellants as well as co-accused did not lead any evidence in their defence.
10. Learned trial Court taking into consideration the evidence adduced before it, while acquitting co-accused Muhammad Khan, convicted and sentenced the appellants abovenamed as hereinbefore mentioned and con sequently appellants abovenamed have filed the above appeal, on the grounds mentioned in the memo of appeal.
11. The learned Advocate for the appellants in support of the above appeal submitted as under:-
12. "There is discrepancy in ocular and medical evidence of P. W. Tagio and as such no reliance can be placed on his statement, without independent corroboration, which is not available in present case as alleged recoveries of incriminating articles were disbelieved and/ or discarded by learned trial Court and even alleged judicial retracted confession of appellants were also discarded by learned trial Court. Trial Court also discarded the motive alleged by the complainant."
13. In support of the above contentions, the learned counsel for appel lants relied upon cases reported in P L D 1978 S C 200, P L D 1960 Kar. 674, P L D 1967 Kar. 612, P L J 1978 S C 690, P L D 1978 Kar. 710, 1980 S C M R 708, 1971 S C M R 432, P L D 1969 S-C 127, P L D 1974 Kar. 274 and P L D 1960 Kar. 821, and submitted that prosecution has failed to establish its case against the above appellants beyond reasonable doubt.
14. Mr. M. I. Memon, learned Additional Advocate-General, submitted that he was not supporting the impugned judgment as no reliance can be placed on the sole statement of P. W. Tagio, without independent corro boration, which is not at all available in present case, as recoveries and motive were disbelieved by the learned trial Court.
15. I have carefully considered the above submissions made by learned Advocates before me and have gone through the R & P of the learned trial Court as well as impugned judgment and cases cited by the learned Advocate for appellants.
16. I find that learned trial Court for cogent reasons disbelieved the motive alleged in F. I. R. and in the statement of P. Ws. as well as dis carded alleged recoveries of hatchets from the appellants and acquitted co- accused also for cogent reasons given in the impugned judgment. I see no reason to disagree with these conclusions of the learned trial Court.
17. I also find that learned trial Court discarded the alleged dye-declara tion of the deceased, Qaiser for cogent reasons given in its impugned judgment and I see no reason to disagree with the conclusion of the learned trial Court.
18. Appellant Pandhi had denied lodging of counter F. I. R. and alleged injury on his person. Even learned trial Court came to conclusions, that injury on persons of appellant Pandhi was self-suffered, for purpose of his defence. In addition, this piece of evidence cannot be used against co- appellant nor such evidence in any way supports the prosecution case against even appellant Pandhi.
19. Learned trial Court has partly relied on the alleged judicial confessions of the appellants, in spite of the fact, that appellants had stated that they had given said confessions under duress and pressures. It is admitted fact that appellants after recording of their alleged confessions were returned back to police custody. In addition to this appellant Pandhi in his said confession Exh. 18-A stated, that he gave injury to deceased in self-defence, after deceased gave him injury. Similarly appellant Dodo in his confession Exh. 18-B admits giving of blunt side of hatchet to P. W. Tagio and deceased Qaiser, but after deceased Qaiser gave blow to co-appellant. Both these confessions were produced by Shrishtadar of the learned Magistrate, who recorded, as he was dead. In view of all these facts, it would be unsafe to rely on these alleged judicial confessions of appellants, without independent corroboration, which in my opinion is not at all available in present case. In view of this reliance placed by learned trial Court on some parts of confessions only was not all justi fied, in my opinion, as these confessions itself required independent corroboration.
20. P. W. 2 Piaro Khan (complainant) is not an eye-witness and his evi dence is based on the information given to him by P. W. Tagio and has fully supported contents of F. I. R.
21. P. W. 3 Dost Muhammad is also not eye-witness of the incident, but had seen appellants as well as acquitted co-accused running away from scene with hatchets and details of incident were given to him by P. W. Tagio, according to which appellants caused injuries" to deceased and acquitted co-accused injuries to P. W. Tagio.
22. P. W. 3 Tagio is alleged eye-witness of the incident and had received injury in the incident in question. In his examination-in-chief stated, that he and deceased saw present appellants on road and had asked them only why they were passing by this road, on which quarrel ensued and both appellants gave hatchet injuries to deceased and himself and ran away. In his cross-examination he stated, that appellants had given sharp-sided hatchet blows to deceased Qaiser as well as to him. He further stated, that he received 4/5 injuries, one of them on his bead was by sharp side of hatchet. It may be mentioned, that according to P. W. 8 Dr. Faiz Muhammad, deceased had no hatchet injuries from sharp side on his body at all. In view of this no reliance can be placed on the statement of this P. W., without independent corroboration, which in present case is not at all available. It may further be noted, that this P. W., did not mention the presence of acquitted co-accused, who according to P. W. 2 Piaro Khan and P. W. 3 Dost Mohammad caused injuries to P. W. 3 Tagio. In view of this material contradiction in, the statements of these P. Ws. inter se their statements do not inspire confidence at all and as such it would unsafe to convict the appellants on such evidence, without independent corroboration, which is not at all avail able, on account of discarding of alleged recoveries, dye-declaration and failure of prosecution to prove motive as alleged in F. I. R., as discussed earlier. In view of this prosecution has failed to prove its case beyond reasonable doubt against the appellants and cases cited by learned Advocate for appellants fully support his contentions.
23. Therefore I allow the above appeal and set aside convictions of the appellants and sentences awarded to them by impugned judgment and acquit them by giving them benefit of doubt and direct that they be release forthwith, if not required in any other case.
24. M. A. K. Appeal accepted.