1983 P Cr (PLP)

(1) Wajid Ali (informant) Exh. 5. (2) Khursheed Ali (P. W.) Exh 6. (3) Allah Bux (P. W.) Exh. 7 (4) Abdullah (Mashie) Exh. 8. (5) Syed Pir Ali Shah (C. J. and F. C. M.) Exh. 9 (6) Ali Nawaz (Tapedar) Exh. 11. (7) Dr. Amanullah (M. O.) Exh. 13. (8) Dr. Muhammad Siddiq Moghal (M.C.) Exh. 14. (9) Atta Muhammad (I.O.) Exh. 15. (10) Ghulam Nabi (Mashir) Exh. 16. (11) Wahid Bux (Corpse bearer) Exh. 17.

5. The APP closed the prosecution side vide his statement as Exh. 18.

6. In his statement under section 342, Cr. P. C. the appellant denied the prosecution allegations levelled against him. He denied to have killed Mst. Hajra or to have attempted to commit suicide. He also denied to have written the two letters in question or to have made a confession before the Civil Judge and F. C. M. Kotri. He further stated, that prior to the day of the incident he had been residing in the house of his brother Khursheed Ali for about 15 years. That at about 10 a.m. on the day of the incident, he was lying in his room, when he heard cries of Mst. Hajra coming from the courtyard of the house. That he at once saw two muffed faced men pulling her, but struggling with them she reached his room. That he immediately got up to pick up his artificial leg, but one of those two culprits caught him by his hair and felled him down and gagged his mouth with his hard. That he tried to wriggle out, but the other culprit, who had a chriuri in his hand, plied it on his throat and cut it. That he then lost his senses and came to in the hospital. That he was brought to the court for confession, but he was not able to speak and his throat was bandaged. That the policeman and the S. H. O. were talking with each other. That he asked him to put his signature on a paper which he did. He further stated that he was innocent and the allegations against him were false. That be was a teacher and he belonged to a respectable profession.

6. The learned Advocate for the appellant submitted that this is unwitnessed crime, and as such appellant's conviction which is, based on his retracted confession, without independent corroboration, which is not at all available, cannot be sustained. In addition to this no reliance can be placed on the alleged two letters of the appellant, as appellant has denied the said letters and as prosecution failed to examine handwriting expert, these letters cannot be used for purposes of corroboration of the retracted confes sion, as done by the learned trial Court.

7. The learned counsel appearing for the State submitted, that he was not supporting the conviction of the appellant, as same is based on his retracted confession only, without any independent corroborative evidence.

8. I halve carefully considered, the above submissions made by the learned Advocates before me, and I have gone through the R & P of the learned trial Court as well as through the impugned judgment.

9. It is admitted position, that there are no eye‑witnesses of the incident. Therefore prosecution case solely rests on the retracted judicial confession of the appellant, and on the basis of the letters alleged to have been written by the appellant, soon after he has said to have murdered Me. Hajra and alleged to have attempted to commit suicide thereafter.

10. Appellant before the learned trial court denied the fact of making confession and consequently retracted the same, and also denied that Article 6 and Article 7, the two letters in. question were in his handwriting in his statement under section 342, Cr. P. C. before the learned trial court.

11. Prosecution in spite of appellant's denial about having written the above‑mentioned two letters, did not think fit to send them to handwriting expert and obtain his opinion and examine him.

12. P. W. 4 Abdullah, the Mashir of recovery of above letters at Vardat has given go‑bye to prosecution case and as such was declared hostile. H also denied his L. T. I. of Exh. 8‑A, 8‑B, 8‑C, Mashirnama prepared by Police. P. W. 10 Ghulam Nabi, the second Mashir of allege recovery of these two letters from Vardat has also not supported prosecution at all, in the same way as P. W. 4.

13. P. W. 5 Pir Ali Shah, Civil Judge & F. C. M. who recorded the alleged confession of the appellant stated before the learned trial Court, that he had not asked the appellant, if he was in fit condition to make confession nor any medical certificate about his fitness to make confession was produced before him. He also admitted that appellant had bandage round his neck, when he was produced before him.

14. P. W. Dr. Muhammad Siddiq, who bad first examined the appellant, in his statement before the court stated, that appellant had incised wound 2 " x " cutting the trachea (i.e. Larynx), on the front of the neck. In his cross‑examination this witness stated, that such injury could be caused if appellant was over powered by one or two persons and such injury would take two to three weeks to heal and he was not is position to say whether appellant could speak, after such injury, after the lapse of two or three weeks. In the. face of this evidence of Dr. Muhammad Siddiq, and in the absence of any certificate of fitness, that appellant on the day when he made confession was in position to speak the statement of the appellant, that he was unable to speak, when be was brought for confession and his signature was taken by S. H. O. on some paper, creates doubt about the judicial confession in question, as evidence of P. W. 5 Pir Ali Shah. Civil Judge and F. C. M. who recorded the said confession does not inspire confidence, if it is read as whole.

15. It may further lie mentioned, that P. W. 9 Atta Muhammad S.H.O.'s statement about recovery of the alleged two letters as given in Court is in 'complete contradiction of the manner in which there letters are alleged to have been recovered, as mentioned in F. I. R. Exh. 15‑A, which was also lodged by this P. W.

16. Keeping in view all the above facts on record, in my opinion prosecution has failed to establish its case against the present appellant beyond reasonable doubt and as such I allow the appeal and acquit the appellant, by giving him benefit of doubt and set aside his conviction and sentences awarded to him and direct, that appellant be released forthwith if he is not required in any other case. Appeal allowed.