1983 P Cr (PLP)

5. To substantiate its case, the prosecution examined complainant Allahdino, P. Ws. Ladho and Soomar, as witnesses of occurrence, while P. W. Ahmed has been examined rot only as corroborative witness, but also as a Mashir in respect of all the Mashii namas prepared by the police and brought on record by the prosecution. Besides, tapedar Ahmed Khan, who had prepared sketch of Vardat ; Dr. Abdul Hameed, wk6‑ held autopsy on the dead body of deceased Ismail; Investigation Officer Muhammad Yousuf, and, finally Mr. Sultan Ahmed Siddiqui, the then Civil Judge and F. C. M., Sujawal and who had recorded the confession of appellant Siddique, were examined by the prosecution. The side of the prosecution was closed, as per Exh. 34.

6. After the evidence referred to above, appellant as well as co‑accused were examined under section 342, Cr. P. C. but all professed their complete innocence. Appellant Siddique denied to have made any confession before the Magistrate. None of the appellant and co‑accused, however, entered into their defence, as per Exhs. 38 to 40, respectively.

7. The learned trial Court taking into consideration the evidence adduced by the prosecution convicted the appellant above named, as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. of appeal.

8. The learned Advocate for the appellant in support of the above appeal submitted as under :‑ (a) That ocular evidence which was disbelieved in respect of two acquitted co‑accused, has been believed in respect of the present appellant, without any cogent reasons. (b) That the alleged judicial confession of the appellant would make out at the most case under, section 3u4, P. P. C. against the appellant and since this confession was retracted, it needed corroboration, before it could be relied upon, but in spite of this the said retracted confession has been relied upon without independent corroboration. (c) That in the alternative the offence if any, committed by the appellant, on the basis of retracted confession would fall under section 304(I), P. P. C. and not under section 302, P. P. C.

9. In support of the above contentions the learned Advocate for the appellant relied upon cases reported in P L D 1964 Kar. 278, P L D 1964 Pesh. 1, P L D 1974 Lab. 450, P L D 1977 Kar. 432 and P L D 1978 Pesh. 116.

10. The learned Additional Advocate‑General appearing for the State at the outset submitted, that he was not supporting the impugned judgment, as the evidence on which the appellant has been convicted has been disbelieved in respect of the two acquitted co‑accused, and furthermore the alleged recoveries from the present appellant have not been proved beyond reasonable doubt. In addition to this the learned Additional Advocate‑General submitted, that the retracted judicial confession of the appellant requires independent corrobora tion, which in his opinion was not available in the present case.

11. 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 the impugned judgment and the authorities cited before me.

12. I find no force in the first contention of the learned Advocate for the appellant, as the learned trial Court in view of corroborative pieces of evidence of recovery of blood‑stained hatchet and judicial confession of the appellant, believed the statements of P. Ws. against the appellant and for cogent reasons disbelieved the said P. Ws. in respect of two acquitted accused persons.

13. Similarly, I find no force in the second contention of the learned Advocate for the appellant to the extent, that no reliance ought to have been placed on the retracted judicial confession, as there was no independent corroboration available in respect thereof. In this connection statement of P. W. Ahmed, Nekmard against whom no enmity is alleged has corroborated recovery of blood‑stained hatchet at the pointation of the appellant as mentioned in judicial confession. Even medical evidence corroborates injuries received by deceased, as mentioned in judicial confession. In view of this, in my opinion retracted judicial confession in respect of material facts stands corroborated by statements of P. Ws. one of whom is independent P. W. Ahmed and other one is Dr. and as such learned trial Court was fully justified in relying upon the said retracted judicial confession on said basis and on the basis of the statement of P. W. Sultan Ahmed Siddiqui, Civil Judge and F. C. M., Sujawal, who recorded the said confession.

14. However, I find force in the third contention of the learned Advocate for the appellant, that offence committed by appellant, in view of the judicial confession and fact as brought on record would fall under section 304(1), P. P. C. and not under section 302, P. P. C. It is clear from the judicial confession that there was sudden quarrel between the deceased and appellant over cattle trespass and some fight between them, in which appellant gave two hatchet blows to the deceased. It is also obvious from the statements of P. Ws. and F. I. R. that there existed dispute between deceased and appellant over cattle trespass. Complainant in his statement before the learned trial Court stated, that dispute in question took place on the same day, although in F. I. R. he stated the same to be one day earlier. This statement of complainant lends supports to the version of the appellant as given in his judicial confession and as such the version of the incident as given in judicial confession could be true and consequently it seems that there was a sudden quarrel, in which appellant gave two blows to the deceased and therefore offence committed by appellant, in my opinion would fall under section 304(1), P. P. C. and not under section 302, P. P. C. as held by the learned trial Court.

15. Therefore, while dismissing the above appeal on merits, I alter the conviction of the appellant from 302, P. P. C. to one under section 304(1), P. P. C. and keeping in view the judicial confession of the appellant, I alter the sentence awarded to him from life imprisonment to one for 8 years' R. I. and maintain the fine of Rs. 5,000, or in default to suffer further R. I. for one year. However, I direct that the benefits of the provisions of section 382‑B, Cr. P. C. be given to the appellant in respect of his period of detention, as undertrial prisoner, after due verification, towards his substantive sentence, in addition to all other remissions, to which appellant may be entitled in accordance with rules. Order accordingly.