2008 PLP 619 (MLD)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts leading to the present appeal are that on 18-4-2000 at about 10 p.m. complainant Gulzar and P.W. Sher Muhammad came back from Moharram procession. They reached near the house of complainant when they heard the cries of deceased Mst. Jannat mother of the complainant; therefore, the complainant went inside the house and saw his father appellant Abdul Sattar causing dagger injuries to Mst. Jannat Khatoon on her face, neck and then appellant ran away after seeing the complainant. The complainant then went to the house of Sher Muhammad and brought him at the place of incident where they found the deceased succumbed to the injuries. The complainant then went to police station and lodged the report. The complainant has shown motive of the incident that the appellant was addict, he used to demand money from the deceased and on refusal he committed her murder. The police after usual investigation arrested the appellant on 1-5-2000. On 2-5-2000 the appellant was produced before the Magistrate where his judicial confession was recorded. After completing the investigation, the appellant was challaned in the Court. The learned IIIrd Additional Sessions Judge, Sukkur tried the appellant and convicted him for offence punishable under section 302(b), P.P.C. and sentenced him to suffer imprisonment for life and compensation of Rs.50,000 to be paid to the legal heirs of deceased with benefit of section 382-B, Cr.P.C. 'under the impugned judgment, dated 20-9-2004. I have heard the counsel for the appellant, State counsel and perused the record of this case very carefully. From the reading of the evidence, the prosecution case rests upon three pieces of evidence;

1. Ocular testimony,

2. Judicial confession and 3, Recovery. First I will take up the ocular testimony which consists of one witness Gulzar Ahmed. He gave same details of the incident as mentioned in the earlier part of the judgment. In the cross-examination, he changed his version by stating that when he was present in the procession of Moharram. He heard cries of his mother therefore he, Imamdino, Mumtaz, Riaz, Ali Sher, Mukhtiar, Shahnawaz and others accompanied him to his house as they were also attracted on the cries. When they reached in the house, he and all the above named persons saw appellant committing murder of the deceased. Then he left the village for registration of the F.I.R., He further deposed that on the next day of the incident the police arrested the appellant. He also admitted that the investigating officer had recorded the statements of the above named persons. The prosecution did not examine any of the above named persons; however, the prosecution examined P.W. Sher Muhammad who gave completely different story as that of complainant. The evidence of P.W.5 Sher Muhammad reveals that on 18-4-2000 at 10 p.m. he was present in his house when complainant came and informed him that his father appellant Abdul Sattar had committed the murder of his mother Mst. Jannat and then the appellant ran away. The complainant further informed him that the appellant had demanded money from the deceased hence the incident took place. Then he went to the house of complainant and found Mst. Jannat lying dead. In the cross-examination he stated that Moharram procession was at a distance of about one kilometer away from the place of incident. He had not heard cries of "the deceased before the incident. His brothers, uncle and father also came at the place of incident after the incident. Thus the statement of the complainant that he and P.W. Sher Muhammad came from Moharram Procession and when they reached near the house, they heard the cries of the deceased has not been supported and corroborated by Sher Muhammad. The complainant did not state that he informed P.W. Sher Muhammad that his father had committed the murder of the deceased as he demanded money from her. Thus the statement of P.W. Sher Muhammad on the said aspect of the case is hearsay evidence which is inadmissible. The statement made by the complainant in the cross-examination that he heard the cries when he was present in Moharram procession also appears to be highly doubtful as P.W. Sher Muhammad deposed that the said place was about one kilometer away from the place of incident. P.W. Sher Muhammad further belied the complainant by stating that at the time of incident he was present in his house which was separated by a wall and did not hear the cries of the deceased. Thus the statement of the complainant is highly doubtful. It is neither supported nor corroborated by any piece of evidence. The learned Asstt. A.-G. has also not relied upon his statement. As such, the prosecution has failed to prove the ocular testimony. As regards the judicial confession, prosecution examined P.W. 2 Magistrate Iqbal Hussain. His evidence reveals that on 2-5-2000 the appellant was produced before him for recording judicial confession. He complied with all the formalities of the law and then recorded the confession. The confession of the appellant reads as under:-- "I was married-with Mst. Jannat in the year, 1961 from which I have five sons and two daughters. Before .the month of Moharram, I went to the house of my cousin Bachal where I saw them coming out of a room. I was already suspecting such relationship with them; therefore, I made hue and cry on which my children restrained me and told me not to declare their mother as "KARI" as it would give them bad name but I kept the incident with me. In the meanwhile my sons had beaten me. On 13th of Moharram in the night time I was sleeping with my wife. I woke up and told my wife that in spite of taking Holy Quran she did not mend her ways and was "KARI", therefore, I took a `wahola' from the roof and caused her injury on her forehead from which she started bleeding. On the commotion, I ran away and went to the mazar of Bhitai where I started living there. I made acquaintance with one Mir police Jamadar and S.H.O. Bashir Chandio. During talks I told them the facts therefore they called Kandhra police and then I was handed over to them. Today police have brought me here." The confession has been retraced. He however, it is well settled principle of law that a retracted confession if it is voluntarily and true then is sufficient to convict the accused without any corroboration but as a rule of procedure and prudence the confession should be corroborated on material particulars. Keeping in view the above principle of law, I have examined the confession with the evidence available on the record and find that the confession is divided into three parts.

1. Motive; the motive alleged in the confession about the character of the deceased has neither been supported nor corroborated by any piece of evidence available on the record even the complainant did not state that the deceased was declared "KARI" by the appellant. On the contrary he deposed that incident took place because the appellant was addict, he used to demand money from the deceased and on her refusal the incident took place. As such the motive alleged in the confession has' not been corroborated. In the confession the appellant alleged that he caused a single blow on the forehead of the deceased but according to the P.W. Dr. Moni, the deceased had following three injuries on her person. (1) Lacerated wound 16 c.m. x 13 c.m. over the right side of face including right side of nose, right angle of mouth, right cheek right eye and right side of ear. Resulting multiple teeth fracture and fracture of both jaws right side. (2) Incised wound 4 c.m. x 1-1/2 c.m. over the right parietal region with fracture right parietal bone. (3) Incised wound 6 c.m. x 3 c.m. over the right frontal region including the right eye right frontal bone fracture spreading out the brain matter. Thus on this ground also the confession has not been corroborated. It is further asserted in the confession that he was arrested from Shirine of Bhitai where the Kandhra police was brought by HC Mir and S. H.O. Chandio. None of these witnesses have been examined by the prosecution. On the contrary, the prosecution led evidence through mashir Illahi Bux and Investigating Officer about the arrest of appellant. They deposed that appellant was arrested on 1-5-2000 from Kandhra bye-pass road whereas the complainant deposed that the police had arrested the appellant on the second day of the incident. Thus, on this aspect: of the confession, there is no corroboration available on the record. After scrutinizing the evidence available on the record I am of the considered view that the confession is neither supported nor corroborated by any piece of evidence. As such it is not true; hence it cannot be made the sole basis for conviction. As regards the recoveries, the prosecution case is that `wahola' was secured from the place of incident. After the arrest of the appellant, he produced one bloodstained `Chhuri' from the bushes near shrine of Noor Shah Bhitai. P.W.8 A.S.-I. Noor Muhammad stated that the appellant had produced a dagger. None of these witnesses deposed that the dagger was sealed at the place of recovery. The dagger was sent to Chemical Analyzer who reported that it was stained with blood. As the dagger was not sealed at the place of incident, therefore, the possibility of tampering with the dagger cannot be ruled out. Hence the, Chemical Analyzer's report is of no value in the circumstances of the present case. Even otherwise, the recovery of bloodstained dagger is not a substantial piece of evidence on which a conviction can be based but it is a corroborative piece of evidence which can corroborate a substantive piece of evidence. When there is no substantive piece of evidence then there is nothing left to be corroborated by the corroborative piece of evidence. Hence merely on corroborative piece of evidence no conviction can be based. Learned Asstt. A.G. finding the above defects in the evidence has not supported the prosecution case. In the light of what has been discussed above, the prosecution has failed to prove the case against the appellant, beyond any reasonable doubt; therefore, the appellant is entitled to the benefit of doubt which was accordingly given to him while passing the short order, dated 7-8-2006 by which the appeal was allowed. These are the reasons of the said short order. H.B.T./A-5/K Appeal allowed.