AFTAB FARRUKH, J.---Criminal Appeal No. 461 of 1977 has been filed by Haji Ahmad and Karim Bakhsh appellants jointly through Advocate. Criminal Appeal No. 499 of .1977 has been filed by Haji Ahmad alone through jail, whereas Criminal Appeal No. 500 of 1977 has been filed by Karim Bakhsh appellant through jail and Criminal Appeal No. 501 has been filed by Mst. Maryam appellant through jail.
Malik Muhammad Afzal, Additional Sessions Judge, Muzaffargarh, vide order and judgment dated 13-5-1977, found the three appellants guilty of the murder of Ghulam Haider, aged 65 years. Haji Ahmad appellant has been sentenced to death and a fine of Rs. 503 and in default to undergo one year's rigorous imprisonment. Karim Bakhsh and Mst. Maryam have been sentenced to undergo life imprisonment and a fine of Rs. 500 or in default to suffer further rigorous imprisonment for one year each. Haji Ahmad and Karim Bakhsh appellants have been convicted under section 302/34, P. P. C.
While Mst. Maryam appellant has been convicted under sec--tion 302/109, P. P. C. Haji Ahmad and Karim Bakhsh appellants have been further directed under section 544-A, Cr. P. C. To pay a compensation of Rs. 2,000 each to the heirs of the decreased and in default to suffer further rigorous imprisonment for six months. The case has been referred to this Court for confirmation under section 374, Cr. P. C. The appellants have filed appeals as mentioned above. All the matters are being disposed of together by this judg.
2. The occurrence, works out to be at Asarwela on 6-12-1974 in the area of forest near Shahpur at a distance of 15 miles from Police Station Seetpur, District Muzaffargarh. Four days later, i.e. On 10-12- 1974, Qadir Bakhsh complainant (P. W. 1) made statement (Exh. P. A.) before Ghulam Rasul A.. S. I. (P.
W. 13) at 3 p.m. At Mauza Sultanpur where he happened to be present on gasht and in connection with the investigation of another case. Formal F. I. R. (Exh. P. E.) was registered at 4-30 p.m. The same day by Saleh Muhammad Muharrir Head Constable (P. W. 4).
3. The case for the prosecution, briefly stated, is that Mst. Maryam appellant who is aged about 44 years, developed illicit liaison with Haji Ahmad appellant. Ghulam Haider deceased, who was husband of Mst. Maryam appellant and was about 60 years old, reprimanded Haji Ahmad appellant quite a few times for this matter.
On the day of occurrence, at about lunch time Ghulam Haider deceased returned home from the jungle where he was grazing his cattle as usual. He saw Haji Ahmad appellant and his wife sitting together on one cot and having a chat, while Karim Bakhsh appellant, who is alleged to be a cousin of Haji Ahmad appellant, was seen occupying another cot. Ghulam Haider deceased abused them whereupon Haji Ahmad and Karim Bakhsh ran away. Ghulam Haider deceased gave beating to his wife Mst. Maryam appellant. He had his meals and then went to the forest for grazing the cattle.
The cattle returned home in the evening without Ghulam Haider deceased. Qadir Bakhsh complainant (P. W. 1) with the help of his son Ahmad Khan enquired about the deceased, but there was no clue.
Three days later, Budha Khan (P. W. 8) and Pehlwan Khan (P. W. 9) (Vajtakkar witnesses who were disbelieved by the learned trial Court) informed Qadir Bakhsh and Ahmad Khan that two days earlier at Asar time they had seen Haji Ahmad and Karim Bakhsh appellant armed with hatchets going towards the forest and nearly half an hour later, running back empty handed. Both the P. Ws.
Enquired from the two appellants the reason for their going back empty-handed so soon, but neither of the two gave any explanation. The two Vajtakkar witnesses also informed them that the two appellants had left towards Basti Gashkori two days later. The complainant and the other P.
Ws. Looked for the two appellants, but could not find them. Them made a search for Ghulam Haider deceased in the forest and with great difficulty after four days of his disappearance, they found his dead body in the forest. In the F. I. R. They cast suspicion-on Haji Ahmad and Karim Bakhsh appellants and further alleged that Ghulam Haider had been murdered by the two appellants at the instance of Mst. Maryam appellant.
4. All the three appellants appeared before Ghulam Rasul Lambardar (P. W. 11) on 11-12-1974 and made extra judicial confessions before him, who produced them before Ghulam Rasul A. S. I. (P. W.
13). They were formally arrested by the Ivestigating Officer. Haji Ahmad appellant led to the recovery of hatchet (Exh. P. 5) from the forest from a spot which is alleged to be at a distance of one and a half furlongs from the place of murder which was taken into possession vide Memo. Exh.
P. H. And it was attested by Ghulam Rasul (P. W. 11) and Ali Muhammad (P. W. 12), a distant relation of the deceased, besides Ghulam Rasul A. S. I.. (P. W. 13). Haji Ahmad also led to the recovery of his blood-stained shirt (Exh. P. 8) and blood--stained chadar (Exh. P. 9) which were taken into possession vide Memo: Exh. P. K. This recovery was effected on the same day and attested by the same set of witnesses.
Karim Bakhsh appellant on the same day led to the recovery of blood--stained hatchet (Exh. P. 4) from the forest allegedly at a distance of one furlong from the place of occurrence. This was taken into possession vide Memo. Exh. P. G. And attested by the same witnesses. On the same day, Karim Bakhsh appellant also led to the recovery of his blood-stained lungi (Exh. P. 6) and blood-stained shirt (Exh. P. 7) which were taken into possession vide Memo. Exh. P. J. This memo. Was also attested by the same witnesses. All these articles were found by the Serologist to be stained with human blood vide report (Exh. P. V.).
5. The post-mortem examination conducted by Dr. Ehsan Ahmad Qureshi on the dead body of Ghulam Haider disclosed the following injuries:-
(1) One incised wound 5" x ----- x brain deep along with commuted fracture of skull bone on the right parietal area 2----- from pinna of right ear.
(2) One incised wound 3----- x 2--- oblique cutting the axillary bone on the right side of face extending up to right side of frontal part of scalp.
(3) One incised wound 1----- x ----- x muscle deep on the right side of front of neck 1--- lateral to thyroid cartilage.
(4) One incised wound 5--- x 2" x 3----- cutting the cervical vertebrai column along with vessels and trachea cut on the right side of back of neck.
(5) One incised wound ----- x ----- x muscle deep on the inner side of left knee.
(6) One contusion 8----- x 1" on the left side of forehead.
(7) Two abrasions 1" x ----- and 1----- x ----- on the front of lower third of right leg.
In the opinion of the doctor, injuries Nos. 1 to 5 were caused by a sharp-edged weapon and the remaining injuries were caused by a blunt weapon. Injuries Nos. 1, 2 and 4 were grievous in nature while the rest were simple. Death was due to shock and haemorrhage of the brain. Injuries Nos. 1, 2 and 4 were individually as well as collectively sufficient in the ordinary course of nature to cause death. Death occurred immediately after the receipt of injuries. Time between death and post- mortem examination was four to five days.
6. The evidence produced at the trial against the appellants as detailed above can be summed up as :
(a) Vajitakkar evidence of Budha Khan (P. W. 8) and Pehlwan Khan (P. W. 9) ;
(b) extra-judicial confession by all the three appellants before Ghulam Rasul Lambardar (P. W. 11) and Ali Muhammad (P. W. 12) a distant relation of the deceased; and
(c) the recoveries as detailed above.
7. The appellants have denied the allegations and have explained their case as follows :- Haji Ahmad appellant : "I jointly owned two squares of land with complainant Qadir Bakhsh and complainant Qadir Bakhsh wanted to usurp this land that is why I have been implicated in this case. The complainant Qadir Bakhsh was not giving me the share of produce. I have also got dispute with Lambardar Ghulam Rasul over the land. It was a blind murder and the story of illicit relations with Mst. Maryam has been concocted only that the case should not go untraced. I am poor man and since my land is with complainant Qadir Bakhsh, so I had no, source of income and could not engage counsel to defend myself. P. Ws. Are deposing falsely before the Court."
Karim Bakhsh appellant : "I had dispute with P. W. Ghulam Rasul Lambardar over the land and I have been falsely involved in the case as it was a blind murder and the story of illicit relations of accused Mst. Maryam has been concocted as the complainant Qadir Bakhsh wanted to usurp the land of his deceased brother Ghulam Haider. P. Ws. Have deposed falsely before the Court and the case has been made against us by the police in collusion with the Lambardar."
Mst. Maryam appellant: "The complainant Qadir Bakhsh and my husband deceased Ghulam Haider were jointly owners of six squares of land and after the murder of deceased Ghulam Haider in order to deprive me and my son of the right of inheritance the complainant Qadir Bakhsh got me implicated in collusion with P. W. Ghulam Rasul Lambardar. The deceased Ghulam Haider never went to the jungle to graze the cattle. He was Zamindar and used to cultivate his land himself. On the day of murder the deceased Ghulam Haider had not come to the house and his meals were taken to the land by his nephew and at that time the complainant Qadir Bakhsh and deceased Ghulam Haider were work- -ing in the field. In the evening the deceased Ghulam Haider did not come back and the dead body was found on the next day in the morning."
8. We are not convinced by the motive as set up by the prosecution. Haji Ahmad and Karim Bakhsh appellants being first cousins is not proved on record. This is a bare allegation which has not been substantiated. The allegation of Karim Bakhsh and Mst. Maryam, being first maternal cousins is accepted by the defence. In this view of the matter, it is difficult to believe that Karim Bakhsh would be a party to an illicit liaison between his maternal cousin and Haji Ahmad appellant. In normal circumstances, it will be unbelievable, that at day time in the house of the deceased, Haji Ahmad appellant and Mst. Maryam appellant, would be occupying the same cot in furtherance of an Illicit liaison, whereas the maternal cousin Karim Bakhsh appellant would be sitting on the other cot. This is admitted in evidence that other family members also lived there. Mst. Maryam appellant in her petition through jail has stated that she had two sons and a daughter from her first husband and two sons from Ghulam Haider deceased and that she was living a happy married life with the deceased.
From the evidence we also do not find any reason for Karim Bakhsh joining the other two appellants in the murder of Ghulam Haider and, therefore, we see no reason for his joining this venture. We find the motive very unconvincing. On the other hand, the allegation of the defence that Qadir Bakhsh complainant himself had got Ghulam Haider murdered and roped in Mst.
Maryam in order to deprive her of her inheri--tance, does not appear to be improbable. In this view of matter, we reject A motive alleged by the prosecution and it is a settled principle of law that if a motive has been set up by the prosecution, but it fails to establish same, the prosecution suffers.
Karim Ali etc. v. The State etc. (1971 SCMR 432).
9. The learded trial Court for cogent reasons given in detail in para--graph 8 of his judgment at page 54 of the paper book, has disbelieved the vajtakkar evidence of Budha Khan (P. W. 8) and Pehlwan Khan (P. W. 9).
The learned trial Court has taken the correct view and given cogent reasons for disbelieving them and we fully agree with him.
10. Evidence of extra judicial confession has been furnished by Ghulam Rasul Lambardar (P. W. 11) and Ali Muhammad (P. W. 12). Ghulam Rasul is a Lambardar of the village. It is unfortunate that people of such category sometimes, become handy tools in the hands of the police, just to remain on the right side of the local administration. The other witness Ali Muhammad (P. W. 12) is a distant relation of the deceased. An extra judicial confession is very weak type of evidence and has seldom been relied upon, by itself, for being made a basis of conviction, Ghulam Qadir v. State (PLD 1960 SC 254) and in any case, a joint extra judicial confession is of no value. Manzoor and others v. State (PLD 1957 Lah. 1023) and Mir and another v. State (1971 P Cr. L J 1214). We also find that the version given in the extra judicial confession is practically 'a ditto copy of the F. I. R. The F. I. R. Was lodged after four days of the disappear--ance of the deceased. At that time, Haji Ahmad and Karim Bakhsh appellants were not traceable and the question of Qadir Bakhsh complainant knowing about the incident in the house of the deceased on the day of murder did not arise, as Qadir Bakhsh himself was not present even at that time. For all these reasons, we find this evidence not worthy of any credence.
11. We are left with the evidence of recoveries. All these recoveries were witnessed by the same witnesses i.e. Ghulam Rasul Lambardar and Ali Muhammad P. Ws. We have disbelieved them in respect of the extra--judicial confession. Both the hatchets were recovered lying at open places in a jungle. These spots are accessible to all. The complainant party had been searching for four days 1n the jungle, Hatchets, if lying there, would have been noticed during the search for the deceased, or in the alternative, anyone could have planted those recoveries there. It is significant to note that recovery Memo. Exh. P. G. Does not state hatchet (Exh. P. 4) to be stained with humap blood, whereas the Serologist has found human blood on it. The occurrence having taken place on 6-12- 1974, we would not expect the two appellants to be keeping their blood-stained clothes in their custody for being presented to the police until their arrest on 11-12-1974. If they were so clever to plan the murder of Ghulam Haider and selected the forest for this venture, they would have got rid of these incriminating articles at their earliest opportunity. We, therefore, do not believe these recoveries as genuine. In any case, the recoveries of lungi (Exh. P. 6) and shirt (Exh. P. 7) at the instance of Karim Bakhsh appellant or shirt (Exh. P. 8) and chadar (Exh. P. 9) at the instance of Haji Ahmad appellant and the two blood--stained hatchets (Exhs. P. 4 and P. 5), which are commonly held by all villagers, by themselves, are not sufficient in this case to base a conviction. This is an unwitnessed occurrence, in which dead body was found after several days in a jungle and the report had been lodged after four days delay. The trial. Court has disbelieved the vajitakkar evidence and we disbelieve the motive as well as the extra judicial confession. We find the case extremely doubtful and all this must adversely reflect on the alleged recoveries which were witnessed by the same witnesses whom we have disbelieved in respect of their testimony of extrajudicial confession.
12. In these circumstances, we are not satisfied with the prosecution evidence. We find the case against the appellants extremely doubtful and giving them the benefit of doubt, we allow this appeal, set aside their convictions and sentences. They shall be set at liberty forthwith if they are not wanted in any other case. The sentence of death is not confirmed.