1984 P Cr (PLP)

The learned trial Court taking into consideration the evidence adduced before it, while acquitting the co-accused Sultan, convicted and sentenced the appellant abovenamed, as hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in the memo of appeal. The learned Advocate for the appellant in support of above appeal submitted as under:- (a) That statement of P.Ws. required independent corroboration in view of admitted enmity, which is not at all available in present case. (b) That prosecution reliance on statements of P.Ws., who are also inimical to appellant, is no corroboration in eyes of law. In support of this learned counsel for appellant relied upon cases reported in 1983 S C M R 1 and 1980 S C M R 225. (c) Retracted confession of the appellant cannot be used as corroborative evidence, without independent corroboration, and furthermore the learned Magistrate, who recorded the said judicial confession admitted that he did not tell the appellant that he would not be remanded back in police custody and as such it ought to be ignored on both these grounds. In support of this the learned Advocate for appellant relied upon cases reported in P L D 1967 Kar. 612. (d) That P.Ws. were not believed in case of acquitted co-accused and as such appellant cannot be convicted on the statements of such P.Ws. (e) That identification is alleged to be on torch light, but this fact is not mentioned in F.I.R . In view of above submissions, the learned counsel for appellant stated, that prosecution has failed to establish its case beyond reasonable doubt against the appellant. The learned counsel for State at the outset submitted that he was not supporting the impugned judgment, in view of above submissions made by the learned counsel, as in his opinion prosecution has failed to establish its case beyond reasonable doubt against the appellant. I have carefully considered the above submissions made by the learned Advocate before me and have gone through R B P of the learned trial Court and impugned judgment as well as cases cited by the learned Advocate for the appellant. Prosecution case rests upon the statement of P.W.3. Allah Rakhio, P.W.4, Muhammad Azim and P.W.8 Soomar, who are closely related to the deceased and enmity is alleged against them by the appellant. Prosecution for purposes of corroboration relied upon the statement of P.W.5. Majnu, Mashir of alleged recoveries, who is also related to deceased and enmity is also alleged against him. P.W.1 Muhammad Saleh, is Mukhtiarkar, who recorded the judicial confession of appellant. This witness in his cross-examination admitted that he did not tell the appellant, that he would not be remanded to police custody and also did not record all necessary warning in confession itself, though it was necessary. It may be noted that this Magistrate was not of Malhar Wassan, which is in Sanghar Taluka, as he was posted at Sinjhoro. Explanation given by him for recording the said confession was, that, police told him that all F.C.Ms. of Sanghar were on leave on the said date, and as such he recorded the said confession. In view of this it would be unsafe to rely on such retracted confession, on the basis of statement of P.W.1. As far as recovery are concerned, the prosecution has relied upon the statement of P.W.5 Majnoo, who is son-in-law of the deceased. He further stated, that the other Mashir was Abdul Majid. He also stated, that his sister was married to complainant Allah Rakhio. He further stated e that appellant Luqman was arrested on the shop of Haji Malhar and the appellant resides in the village Malhar Wassan which is sufficiently big village and people of different castes reside in that village. In his cm he stated that police party went to the house of appellant Luqman ;t appellant Luqman came out of his house and was arrested. At that ve time the police asked him about the hatchet and the appellant went insw; his house and took out the hatchet from the beddings and the Imashirnan; of the arrest and the recovery were made on the spot, in the house o the appellant Luqman. However, in his statement before the learner committal Court, and in his examination-in-chief he has given different places of arrest of the appellant and as far as preparation of Mashlrnama~' are concerned, he had stated before the committal Court, that the sam; were prepared at the Otak of Malhar. His evidence does not inspirr confidence and on account of contradictions in his statements recorder: before the learned trial Court and before the committal Court, which were brought on record and on account of the fact that he is closer related to the deceased, it would be unsafe to rely on his statement fn, said recoveries, specially as I.O. has given no explanation, why he did not pick up independent and respectable Mashirs for the arrest recoveries of the appellant from the village Malhar, which is fairly be village and thus violated the mandatory provisions of section 103, Cr.P.C In view of this conclusion in my opinion the recoveries in question cap not be used as corroborative piece of evidence against the appellant. In view of my above conclusions about the alleged judicial confession and the recoveries, prosecution case now solely rests upon statements of P.W.3. Allah Rakhio and P.W.4 Muhammad Azim and P.W.8 Sumar the alleged eye-witnesses. All these alleged three eye-witnesses are very closely related to the deceased and on account of the enmity mentioned in the F.I.R. as admitted by P.W.8 in his cross-examination in which he has stated, that their relations with appellant Luqman were strained for last one year before the incident, on account of appellant's ex-wife alleged to be in toe with deceased. In view of this I agree with the contention of the learned Advocate for the appellant, that the statement C of these three eye-witnesses required independent corroboration, for which the prosecution was relying on the judicial confession of the appellant as well as on recoveries, both of which I have discarded for the reasons hereinabove given. P.W.7 Abdul Majeed does not in any way corroborate the statement of eye-witnesses regarding the incident in question and his evidence is only confined to the enmity which the appellant had with the' deceased, on account of his ex-wife. Keeping in view my above discussions on prosecution evidence on record, in my opinion prosecution has failed to establish its case against the appellant, beyond reasonable doubt. Therefore, l allow the above appeal and set aside conviction and sentences awarded to the appellant and acquit him by giving him benefit of doubt. M.Y.H. Appeal allowed