According to the prosecution the brief facts of the case are that on 3-2-1975, at about sunset time Noor Muhammad complainant along with his sons Nazim deceased and P. W. Habibullah was present in his house in Chak No. 124/G. B. Yaseen appellant came there and called out Nazim deceased and took him towards the Railway Station Kot Dia Kishan for having a sight of the train.
The deceased at that time was wearing shalwar and shirt, brown shoes with socks and a silver ring on the little finger of the right hand. The deceased after going with the appellant did not return during the night. The next morning Habibullah P. W. Went to the house of the appellant but did not find him there. Again after sometime inquiry was made about the appellant from his house but he was not found there. The father of the deceased, Noor Muhammad complainant and his son Habibullah P. W. Then started search for the deceased. I the meantime a news spread in the village that a dead body in a burnt condition was lying in Killa No. 8, Square No. 56. Accordingly the complainant accompanied by his son Habibullah P. W. Rushed to that place and saw a dead body lying in the opening of the hearth for preparing gur. The dead body was in a burnt condition. The complainant identified the dead body to be that of his deceased son from the ring, the shoes and the socks. The complainant while in his way to the police station learnt that the thanedar was present in Chak No. 124/G. B. He contacted the Police Offices who recorded his statement Exh. P. A.
A. S. I. Sakhi Gul (P. W. 121 after recording the statement of the complainant sent the same to the Police Station, Jaranwala, where formal F. I. R. Was registered at 3-50 a. m. He himself proceeded to the spot. On reaching the place of occurrence he preparded the injury statement Exh. P. B. And inquest report Exh. P. C. And despatched the dead body to the mortuary for post--mortem examination. He secured blood-stained earth from the spot and sealed into a parcel vide memo.
Exh. P. D. On 7-2-1975, Inayatullah and Muhammad Ibrahim P. Ws. Produced the present appellant before the Police Officer who took his Shalwar P. 5 and shirt P.
6. Into possession vide memo. P. F.
The appellant also led the police to the recovery of Datar P. 7 from underneath the bedding of his house. It was taken into possm sion, sealed into a parcel vide memo. Exh. P. H. The Investigating Officer got the site plan (Exh. P. J.) prepared from the partwari Salabat After the usual investigation, he challaned the appellant under section 302. P. P. C. He was tried by the Additional Sessions Judge, Lyallpur who rids impugned judgment dated 25-9-1975, found him guilty under section 302, P. P. C. For the murder of Nazim deceased and sentenced him to undergo imprisonment for life. The appellant was also ordered to pay a sum of Rs. 2,000, as compensation under section 544-A, Cr. P.
C. And in case of default in payment to undergo R. I. For one year. The amount if realised was ordered to be paid to Noor Muhammad father of the deceased. The appellant was also convicted under section 201, P. P. C. And sentenced to undergo R. I. For two years. Both the sentences awarded under sections 302, p, p. C. And 201, P. P. C. Were ordered to run concurrently. The appellant has challenged his conviction and sentences through the present appeal.
2. On 5-2-1975 at 11-00 a. m. Dr. Ahmed Saeed, Medical Officer, laranwala, conducted the post- mortem examination on the dead body of Nazim deceased and found the following injury: "An incised wound 7" x 2" bone deep front of neck. The thyroid cartilage was cut through, the cut and (upper) was clear. The margins of wound (skin) were burnt.
In the opinion of the doctor death was due to shock and haemorrhage. This injury was fatal and caused by sharp-edged weapon, which was sufficient to cause death in ordinary course of nature.
The injury was anti-mortem. The death was immediate and the time between death and post- mortem was within 24 to 48 hours.
3. The appellant when examined under section 342, Cr. P. C. Denied the prosecution allegations.
Before the trial Court when asked why this case was made against him, the appellant stated as under: "I have been falsely implicated at the instance of Raka Kazim and Murid Ahmad lambardar P. Ws.
Who wanted me to carry out their personal errands and I had refused to oblige them. I had also had a quarrel with Ghulam Muhammad P. W. As he had declined to pay me my due wage' at the marriage of his son."
When asked if he wanted to say anything else, the appellant stated as under : "Nazim deceased was a vagabond and had deserted his house about two months prior to the alleged occurrence."
4. There is no direct evidence in this case. This is a case of circumstantial evidence. The prosecution has relied upon the following pies of evidence.-
(a) motive,
(b) the deceased last seen in the accompany of the appellant,
(c) extra judicial confession allegedly made by the appellant before Inayatullah (P. W. 8) and Muhammad Ibrahim (P. W. 9), and
(d) recovery of weapon of offence and some other articles.
I will discuss these pieces of evidence one by one. As regards the last item, Ls. Recovery evidence, it may be observed that the trial Court disbelieved the evidence relating to the recoveries in this case. While dealing with the recoveries the learned Additional Sessions Judge observed as under:- - "The recoveries in the instant case are not of much help as it could not be established that datar P.
7 was used as the weapon of offence or that the clothes of the accused factually carried blood stains. The evidence pertaining to recoveries is therefore discarded."
According to the learned State counsel the most important piece of circumstantial evidence available against the appellant is his alleged extra judicial confession made before Inayatullah (P.
W. 8) and Muhammad Ibrahim (P. W. 9). Inayatullah P. W. Is the resident of Chak No. 62/0. B. While Muhammad Ibrahim P. W. Lives in Chak No. 355/0. B. According to these witnesses on 6-2-1975, they were sitting at the dera of Inayatullah P. W. When Yaseen appellant went there and stated that he suspected Nazim deceased of having illicit intimacy with his cousin Khalida alias Nunni arid so he had killed him with a datar and thereafter burnt the dead body in the hearth of Ramzan. The appellant further stated that he had been hiding himself for fear of the police. He requested the witnesses to produce him before the police so that he may not be tortured by the police. The appellant was kept by the witnesses for the night in Chak No. 62/0. B. And next day on 7-2-1975, he was taken to Chak No. 124/0. B. Where he was produced before the Investigating Officer.
Muhammad Ibrahim P. W. Has admitted that Chak No. 355/0. B. Is at a distance of about 10/11 miles from Chak No. 62/0. B. And same is the distance between Chak No. 355/0. B. And Chak No. 124/0. B.
Where the occurrence took place. The justification shown by Muhammad Ibrahim P. W. To go to Inayatullah P. W. Is that the former had advanced some money to the latter and he had gone to Chak No. 62/0. B. To take his money back from Inayatullah P. W. He has, however, admitted in cross- examination that there was no writing depicting the loan transaction. Muhammad Ibrahim P. W.
Has further admitted that the appellant was neither known to him earlier nor he had gone to Chak No. 124/0. B. Previously. He had simply accompanied Inayatullah P. W. He is neither the Lambardar of his village nor otherwise acted as representative of the people. He has shown no reason why the appellant should go to him and confessed his guilt before him. He was not .In a position to help the appellant in any manner. As regards Inayatullah P. W. He has stated that the appellant was known to him previously. He has however admitted that the appellant had never gone to him earlier but had met him at the dens of Raja Kazim as he was a moeen of said Raja Kazim who was the friend of the witness. The witness only knew the appellant and the name of his father. This witness is also neither a Lambardar nor member of B. D., etc. In the Chak. However his brother Khan Ahmed had been an M. P. A. This witness has further stated that earlier he did not produce any culprit before the police and the appellant as the first person to be produced before the police. However he had stated before the Committing Magistrate that accused persons had been coming to him earlier and he had been helping them. He has further admitted that he had been rendering lawful assistance to the accused who came to him. According to him he has been going to the police with the accused and some of them pleaded guilty before him and therefore he produced them before the police and divulged the information as well. He has further admitted that he had appeared as a witness in one case earlier in relation to an extra judicial confession. He also knew Noor Muhammad complainant who had earlier worked as a tenant in Chak No. 62/0: B. The distance between his Chak No. 62/0. B. And Chak No. 124/0. B. Is 617 miles. In this background when these two witnesses are not the resident of the locality or even of village (Chak No. 124/0. B.) where the occurrence .Took place, we have to be very careful before accepting their version. Muhammad Ibrahim P. W. Lives at a distance of 10/11 miles while Inayatullah P. W. Is residing at a distance of 6-- / 7 miles. The appellant was not even previously known to Muhammad Ibrahim P. W. Inayatullah P.
W. However claims that he knew the appellant earlier but he also knew the complainant Noor Muhammad father of the deceased. It is an admitted fact that these witnesses were neither Lambardar of their respective villages nor they were otherwise representatives of their areas. They were therefore not in a, position to help the appellant or exercise any influence over the police.
These witnesses have not shown why the appellant went to them in Chak No. 62/0. B. To confess his guilt. Although in the earlier part of his statement, Inayatullah P. W. Has tried to conceal certain facts but ultimately he has admitted that earlier he has been appearing in similar cases to support the prosecution. When confronted with the cross-examination of this witness, even the State counsel admits that he is more or less a stock witness. It is possible that he may be doing so being a brother of Exh. M. P. A. The State counsel further admits that there is nothing on the record to show that these two witnesses were men in authority and could in any manner help the appellant. The conduct of these witnesses is also not above board. According to them the appellant appeared before them on 6-2-1975, in the evening and remained with them during the night and was produced before the investigating Officer next morning at Chak No. 124/0. B. They have not shown why he was not straightaway produced before the Police Officer and what precaution was taken by them to see that the appellant did sot run away. After careful scrutiny of the statements of Inayatullah and Muhammad Ibrahim P. Ws. I have reached the conclusion that they do not inspire any confidence. And it looks unusual and unnatural for the appellant to go to such People at such a distance for confessing his guilt when they were neither his friend nor in a position to help him. I, therefore, feel that it is not safe to rely upon the testimony of these two witnesses.
5. The next piece of evidence relied upon by the prosecution is the motive. According to the prosecution the appellant suspected Nazim deceased having illicit intimacy with his cousin Khalida alias Nunni. In support of this motive the prosecution is relying upon the statement of Inayatullah and Muhammad Ibrahim P. Ws. It is surprising that the prosecution has not produced any other witness to establish the motive. It is not denied that if there is any suspicion of this type in the village, such suspicion does not remain a secret but is generally known to the whole village community. The complainant who is the father of the did should have known this intimacy. He has not mentioned this motive in the F. L R. Or in his statement. No other witness has deposed about the motive. '1 have not relied upon the statement of Inayatullah and Muhammad Ibrahim P. Ws, regarding extrajudicial confession and have held that their statements do not inspire any confidence. These witnesses did not have any direct personal knowledge about the motive as they live in different villages situate at considerable distance from No- 124/G. B. According to them it was the appellant who disclosed this, motive for killing the deceased. In other words the motive is also Parl of the alleged extra judicial confession which I have not believed. In this view of the matter the motive also suffers from the same infirmity.
6. As regards the circumstance of the deceased last seen in the accompany of the appellant, the prosecution has produced Ghulam Hussain (P. W. 5) and Wazir Ali (P. W. 6). Although there are some material discrepancies in the statements of these witnesses yet even if this circumstance is believed, that itself will not be sufficient to connect the appellant with the actual murder to maintain his conviction under section 302, P. P. C.
7. After hearing the counsel for the parties at length and going through the entire material available on the record, I have reached the conclusion that the prosecution has not established the guilt of the appellant beyond any reasonable doubt. The element of doubt exists at every stag of the case. There is not sufficient material available on the record t maintain the conviction of the appellant. Accordingly giving benefit o doubt to the appellant, I accept his appeal and set aside his conviction. He shall be released forthwith if not required in any other case.