1983 P Cr (PLP)

Appellant abovenamed being aggrieved by judgment dated 30th January, 1979 of the learned Sessions Judge, Sanghar, in Sessions Case No. 208 of 1975, by which appellant has been convicted under section

302. P. P. C. and sentenced to suffer imprisonment for life, has preferred the above appeal, on the following facts and grounds :‑ On 19th October, 1974 at 4‑30 p. m. complainant Fakir Muhammad lodged report at police station Sinjhoro which reads as follows :‑ "Complainant's complaint is that I am Sirrio hart of Molvi Muhammad Ibrahim since 3 years and am residing in town Sinjhoro. Today at 3‑00 p. m. I came to town Sinjhoro to take bag of wheat from my Zamindar Molvi Muhammad Ibrahim. At Lorry stand Molvi Muhammad Ibrahim my zamindar met me and I asked him for bag of wheat for home consumption. He said that we shall look for Seth Siraj, who must have come to the town and he would get me a bag of wheat from him. Talking we proceeded along the bazar and reached shop of Sadiq iron smith, where I had kept my hatchet for being sharpened. I enquired from Sadiq iron smith about my hatchet, who said that he had still not sharpened my hatchet. Then from there we were returning back to Lorry stand, when Seth Siraj met us adjoining to shop of Molvi Abdul Ghani and to him Molvi Muhammad Ibrahim talked about bag of wheat for me. At that time from southern side, Abdullah son of Molvi Abdul Rehman, who was known to me, reached there with hatchet in his hand and gave hakal and struck hatchet with sharp side to Molvi Muhammad Ibrahim at his neck from behind and Molvi Muhammad Ibrahim fell down. Abdullah then showered hatchet blows on Molvi Muhammad Ibrahim and his neck was severed from his body. Shan Muhammad, Muhammad Essa and other people of the town, shopkeepers and Maniniwalas reached there and saw the incident. Abdullah threatened them all, that if they would come near him they shall die. Out of fear nobody came near. Accused Abdullah run away with his hatchet giving hakals. This Abdullah and his father Abdul Rehman had already committed murder and in that case Abdullah was released on bail by the Court. Other accused are in Jail. There is old feud between Abdul Rehman father of Abdullah and deceased Molvi Muhammad Ibrahim over land in Deh Bothro. Deceased Molvi Ibrahim had filed appeal before Board of Revenue, which was pending. Leaving the above witnesses and other people of the town over dead body of Ibrahim, I have come to lodge report. I am lodging report, investigation be made," A. S. I. Munawar Ahmed incharge of police station lodged report of the complainant Exh.

20. He came to the scene of offence, which was in bazar of Sinjhoro town, in front of cabin of Ashraf Beg. He found dead body of Molvi Muhammad Ibrahim with head severed from it and lot of blood at the scene of offence. The body had hatchet injuries. He secured blood‑stained earth end a diary from the pocket of the deceased containing three one‑rupee notes and these articles were stained with blood. He prepared mashirnama Exh. 30 and then sent the dead body through P.C. Riaz for post‑mortem examination to Medical Officer Sinjhoro and then gave papers to S. H. O. The S. H. O. arrested the appellant in his house at about 8‑15 p. m., where the appellant was sitting holding hatchet in his hand. It was blood‑stained. The S. H. O. secured it and sealed it. The appellant was wearing clothes stained with blood and the S. H. O. also secured them and sealed them under Mashirnama Exh.

32. On 20th August, 1974 the S. H. O produced appellant Abdullah before Mukhtiarkar and F. C. M. Sinjhoro at 1.00 p. m., where he had made his confession Exh. 9. 0A completion of the investigation the appellant was sent up. The prosecution in support of its case had examined Dr. Krishan Lal, the then Medical Officer Sinjhoro, who performed post‑mortem examina tion on the dead body of deceased Molvi Muhammad Ibrahim (P. W. 1), Mr. Muhammad Sakik, the then Mukhtiarkar and F. C. M., Sinjhoro, who recorded confession of the appellant, Abdullah (P. W. 2) Mashir Noor Ahmed (P. W. 3), Tapedar Sain Bux, who prepared sketch of scene of offence (P. W. 4), Complainant Fakir Muhammad (P. W. 5), Mst. Mariam (P. W. 6), A. S.I Munawar Ahmed (P. W. 7), corpse‑bearer P. C. Riaz Ahmad (P. W. 8), Mashir Muhammad Parial (P, W. 9), Sirajuddin (P W. 10), Muhammad Essa (P. W. 11). Attendance of S. H. O. Mr. Ahtsham Ali Kadri could not be secured in spite of best efforts. The appellant in his statement had admitted, that he had old enmity with deceased Muhammad Ibrahim over land and that he and his father were tried for murder of Abdul Aziz hari of Molvi Muhammad Ibrahim and Molvi Muhammad Ibrahim was throughout perusing the case and has stated that Molvi Muhammad Ibrahim deceased bad got them falsely implicated. The appellant has denied the rest of the allegations, With regard to confession, the appellant has stated, that police had arrested him at 8 or 9 p. m. and taken his uncle, two brothers, mother and sisters to police station, where he was mercilessly beaten and on the next day he was produced before Mukhtiarkar before whom he had complained of Maltreatment. His relatives were detained at police station. The S. H. O. was sitting with Mukhtiarkar and he had dictated his confession and Mukhtiarkar had obtained his signature. This confession was neither true nor voluntary. His relatives had sent telegram against Mukhtiarkar and Police. With regard to the witnesses the appellant has stated, that they are interested in the deceased and inimical to him. The appellant has produced the attested copy of telegramme sent by his relatives to D.M. and Sessions Judge and Civil Judge, Sanghar Exh. 45, certified copies of depositions of Hakim Ali, Noor Ahmed and Haji Noor Hussain in family Suit No. 193 of 1969 Mst. Kariman v. Noor Muhammad recorded by Civil Judge Shahdadpur Exhs. 46 to

48. The appellant has stated, that this Mst. Kariman was sister of Haji Noor Hussain and she had filed divorce suit against Noor Muhammad close relative of deceased and P. W. Ha6z Siraj was witness for Noor Muhammad in that divorce suit, against Noor Muhammad. The appellant had further stated, that Noor Hassain was his uncle and was co‑accused with him in murder case of Abdul Aziz and had produced true copy of deposition of Hafiz Sirajuddin, recorded in the lower Court Exh.

49. He had produced true copy of challan presented by police, on the report filed by his father with police against deceased Molvi Muhammad Ibrahim and P. Ws., Shan, Laloo and Fatah Muhammad Exh.

50. The appellant has produced F. I. R. lodged by P. W. Noor Samani, who was examined before lower Court and gave his name Noor Samand, while in the trial Court he has at the time of his examination given his name to be Noor Muhammad Exh.

51. He has produced true copy of F. I. R. lodged by his father against deceased, Shan and Fatah Muhammad father of P. W. Noor Samand and P. W. Laloo Exh.

52. He has produced copy of direct complaint filed by P. W. Mst. Mariam against Dinoo and 4 others before D. M. and forwarded by him to R. M., Sanghar Exh.

53. He has produced discharge order of the Court in that case Exh. 54 and order passed by Mukhtiarkar and F. C. M., in that case under section 250, Cr. P. C. against Mat. Mariam for fill n the false case against Dinoo and others Exh.

35. He had produce true copy of deposition of Hafiz Sirajuddin as defence witness of deceased Molvi Muhammad Ibrahim in case filed against him by his (appellant) father Exh.

56. He had produced true copy of plaint in civil suit No. 18 of 1978 filed by P. W. Muhammad Essa, P. W. Shan and others against him (accused) and others in Court of Senior Civil Judge Sanghar Exh.

57. He had produced true copy of judgment passed by the Civil Judge and F. C. M. Sanghar convicting deceased and Wali Muhammad under section 326 read with section 34, P.P.C. Exh.

58. He had produced true copy of deposition of Hafiz Sirajuddin in family suit No. 193 of 1966 Mst: Karim Khatoon v. Noor Muhammad as a witness of Noor Muhammad Exh.

59. He had produced true copy of judgment of the trial Court in S. C. No. 249 of 1976 State v. Molvi Abdul Rehman and others Exh.

60. He had produced true copy of deposition of P. W. Shan recorded by lower Court in this case Exh.

61. He had produced true copy of statement of Noor Muhammad, before the lower Court in this case Exh. 62, and produced diary of lower Court dated 20th May, 1975 Exh.

63. He had produced statement of A. P. P, before lower Court dated 20th May, 1915 reserving P. W. Essa Exh.

64. The appellant bad further stated, that he was innocent and has been falsely implicated. Deceased was person of bad character having many enemies and only Clod knew, who bad killed him. The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant abovenamed, as hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in memo of appeal. The learned Advocate for the appellant, in support of the above appear submitted as under :‑ (a) That P. Ws. are interested witnesses and on account of deceased having enmity with the appellant and as such their statements require independent corroboration, which is not at all available in present case, as recoveries were not believed by the learned trial Court for cogent reasons. In support of this contention, the learned Advocate for the appellant relied upon cases reported in P L D 1962 S C 296 ; P L D 1982 S C 429 and ? L D 1980 S C 109, 1971 P Cr. L J 922 and A I R 1956 Bom. 471. (b) No reliance can be placed on alleged judicial confession of the appellant, as it was under coercion and duress and further more it was recorded after Court's timing, for which no reasonable reasons have been given by prosecution. In support of this contention the learned Advocate for the appellant relied upon cases reported in 1975 P Cr. L J 1077 ; P L D 1960 Kar. 674 and P L D 1964 S C 813 specially as learned Magistrate did not mention in confession, that he had warned the appellant that be would not be sent back to police custody, in view 9f case reported in P L D 1967 Kar. 612. (c) That names of P. W. Mst. Mariam and P, W. Sirajuddin were not at all mentioned in F. I. R. and as such no reliance can be placed on their statements without independent corroboration. (d) That appellant by statement of D. W. 1 Haji Abdul Gani has falsified prosecution case completely and was prosecution witness, in front of whose shop incident is said to have taken place. Learned trial Court has discarded his statement, without any cogent reasons. The learned Advocate appearing for the State on the other hand submitted, that he was fully supporting the impugned judgment for following reasons :‑ (a) Recoveries ought to have been relied upon by learned lower Court, which is the best corroborative evidence, in view of Chemical Examiner's report which is positive. (b) P. W. Fakir Muhammad is reliable and disinterested witness against whom no enmity is alleged. Mere fact that he was hari of deceased does not make his statement unworthy of reliance. In support of this contention the learned Advocate for the State relied upon case reported in p 4 D 1962 S C 269. (c) That P. W. 7 has corroborated the statement of p. W. Fakir Muhammad fully and no enmity is alleged against this P. W. 7. (d) That judicial confession cannot be discarded on mere ground, that it was recorded after Court timings, if otherwise has been proved to be made voluntarily, as in this case. In support of this contention the learned Advocate for the State relied upon case reported in P L D 1972 S C (?) I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as through the impugned judgment and oases cited by the learned Advocates before me. I have carefully gone through the statements of P. W. 6 Mat. Mariam and P. W. 10 Sirajuddin. I do not find their statements straightforward and convincing, as these both witnesses have tried to deny certain admitted facts about themselves, which are on record. In addition to this, complainant did not mention the names of these two P. Ws. as eye. A witnesses in F. I. R. and as such their presence becomes doubtful as well and consequently their statements cannot be taken Into consideration, a laid down by D. B. of this Court in case reported in P L D 1962 W. P.) Kar.

800. This view is also supported by case reported In P L D 964 Posh. 59 (D. B.) and case reported in P L D 1964 Lah. 32 (D.B.). Even the learned Advocate for the State submitted, that statement of P. W.

6. Mar, Mariam may be discarded. P. W. 1 Muhammad Issa is alleged to be another eye‑witness of the incident but admittedly he is son‑in‑law of the 4ooased and in view of admitted enmity between appellant and deceased over land, a g well as between appellant and this witness on account of S. No. 18/78 Bak, 37, it would be unsafe to rely on his statement, without independent corroboration. Learned trial Court for such corroboration has relied upon the retracted judicial confession of the appellant and on the statements of P. W. S Fakir Muhammad as recoveries were discarded by the learned trial Court, for cogent reasons. As far as judicial confession of the appellant is concerned, the same was retracted by the appellant and furthermore soon after alleged recording of the said confession, relatives of the appellant sent telegram Exh. 45, which is on record and was produced by appellant by his statement under, section 342, Cr. P C. alongwith other documents. In view of this, in my opinion such judical confession, cannot be taken into consideration, as corroborative piece of evidence against the appellant, specially as the learned Magistrate P. W. 2 Muhammad Sadiq, who recorded the alleged judicial confession admitted, that he has not mentioned 1n the said confession, that he had informed the appellant, that whether he gives or does not give statement, he would not be sent back to police custody. In this connection case reported in P L D 1967 Kar, 612 lays down, that such procedure followed by learned Magistrate was incorrect. Case reported in P L D 1964 Pesh. l (D.B.) also held in the absence of such statement In confession recorded by Magistrate voluntariness of confession becomes doubtful. I find that alleged recoveries made from appellant have been rightly and for cogent reasons discarded by learned lower Court and I see no D force in the arguments of the learned Advocate for the State to accept the said recoveries, because Chemical Examiner's report is positive. I have carefully gone through the statement of P. W.

5. Fakir Muhammad the hari of the deceased. His statement seams to be straightforward and convincing, except that in Court he included the name of P. W. Mst. Mariam, as eye‑witness. Mere fact that he was hari of the deceased does not make his statement unworthy of reliance. There are few minor contradictions in his statement before the learned trial Court and one under section 161, Cr. P. C. but these contradictions are not such to make his statement unworthy of credit. Keeping in view the statement of this witness and admission of the appellant about enmity with the E deceased over land, which is alleged motive for the murder in question, in my opinion prosecution has established its case beyond reasonable doubt, against the appellant, and his evidence fully corroborates the statement of P. W.

11. Muhammad Ishak whose name also appears in F. I. R. as eye‑witness. Cases cited by the learned Advocate for appellant for discarding the statement of P. W. 5 are based on different facts and as such not applicable to this P. W. in my opinion. D. W. 1 Abdul (3hani it is alleged was originally prosecution witness, but since he was won over, he was not cited by prosecution as P. W. I have carefully gone through the statement of this witness, who has fully supported the appellant's case and even denied presence of P. Ws. He has admitted to have known appellant for 10/15 years, but was not aware of land dispute between appellant and deceased, according to his statement in cross‑examination. This is rather surprising, as appel lants himself has admitted this enmity. This clearly shows, that this D. W. is not speaking the truth and as such I find, that learned trial Court has for cogent reasons discarded his statement and I see no reason to disagree with the said conclusion of the learned trial Court. In view of my above appraisal of the prosecution evidence, I am of the opinion that prosecution has established its case beyond reasonable doubt against the appellant, on the basis of the statement of P. W. 5 Fakir Muhammad, who has also corroborated the statement of P. W. 11 Muhammad Issa and on account of motive alleged by prosecution, which is not disputed by the appellant. Therefore I find no merits in the above appeal which is dismissed. The appellant is on bail and as such his bail bond is cancelled and trial Court is directed to issue non‑bailable warrants for the arrest of the appellant and on his arrest to remand him back to judicial custody to serve out remaining sentences awarded to him, under impugned judgment. I further direct that benefit of provisions of section 382‑B, Cr. P. C. in respect of the period of detention of the appellant, as undertrial prisoner be given to him towards his substantive sentence, in addition to all other remissions to which appellant may be entitled, in accordance with rules. Appeal dismissed.