MUHAMMAD SARWAR, J.-Allah Ditta son of Suleman, aged 35 years was tried along with Manzoor son of Allah Rakha, brother of the deceased Shah Muhammad son of Allah Yar, brother-in-law of the appellant, Mst. Kammon wife of Mehru, mother-in-law of the appellant and Muhammad Ishaq son of Muhammad Din, distant relative of the appellant, by learned Sessions Judge, Vehari, for the murder of Abdul Ghafoor, aged about 18/25 years. By judgment dated 14th January, 1978, Allah Ditta appellant has been convicted under section 302, P. P. C., and sentenced to death and a fine of Rs, 1,000 or in default to undergo further two years' R. I. While his other co-accused have been acquitted. The fine, if realised, has been ordered to be paid to the heirs of the deceased as compensation. The appellant has filed Criminal Appeal No, 109 of 1978 and Murder Reference No, 28 of 1978 is also before us for confirmation of the sentence of death. Both these matters are being disposed of by this judgment.
2. The occurrence in this case took place 11 days before Eid-ul-Fitr which fell on 8th November, 1972, within the area of Chak No, 160/W. B.. At a distance of ten miles from Police Station, Jahanian, District Vehari. F. I. R. (Exh. P L) was lodged by Muhammad Yaqub (P. W. 11) elder brother of the deceased, at 5 p. m. On 13th December, 1972, more than a month after the disappearance of Abdul Ghafoor deceased. It was recorded by Muhammad Saleem, S. I. (P. W. 14).
3. The brief facts, according to the F. I. R., are that Muhammad Yaqub (P. W. 11) brother of the deceased was allotted a square of land and similarly his father Allah Rakha (P. W. 8) was also allotted land under the Co-operative Societies Scheme. Allah Rakha besides the complainant had two other sons Abdul Ghafoor (deceased) and Manzoor Ahmad (acquitted co-accused) who were younger to Muhammad Yaqub P. W. 5/7 years ago, father of Muhammad Yaqub married the other two sons above mentioned and gave them half a square of his land each for cultivation. According to the bye-laws of the Co-operative Society, in case of death of father, the land was to be inherited by the eldest son. Manzoor Ahmad (acquitted co-accused) being the younger son of Allah Rakha, at a number of times. Asked his elder brother Abdul Ghafoor deceased to give him his share and get his name entered in the revenue record. Abdul Ghafoor deceased told him that since their father was alive, at the proper time he would transfer his share in writing but Manzoor Ahmad was not satisfied. Therefore, Manzoor Ahmad developed friendly relations with Allah Ditta appellant, friend of Abdul Ghafoor deceased, and gave him his buffalo and made a conspiracy with him to kill Abdul Ghafoor. The appellant, in prosecution of the conspiracy, took away Abdul Ghafoor 11 days before Eid-ul-Fitr at 10 a. m. From his house and while going away the deceased Abdul Ghafoor told his wife Mst. Salima Bibi that he was going along with Allah Ditta for an important piece of work and would return after calling upon his in-laws in Chak No, 65, Tehsil Bahawalpur. Both Abdul Ghafoor deceased and Allah Ditta appellant were last seen on the same day by Muhammad Hussain (P. W.
6) a cousin of the deceased and Muhammad Amin (P. W. 7) near double-barrier within the area of Chak No, 165/W. B., and on their inquiry Allah Ditta appellant told them that they were going for an important errand in the state. The appellant returned on the next day of Eid-ul-Fitr and on the asking of Muhammad Yaqub P. W. Told him that Abdul Ghafoor deceased had gone to his in-laws and would come later. Manzoor (acquitted co-accused) also confirmed this fact. Thereafter, the complainant had been asking Allah Ditta appellant and Manzoor Ahmad (acquitted co-accused time and again for the whereabouts of Abdul Ghafoor deceased and on the third day the appellant disappeared and took away all his belongings, upon which the complainant Muhammad Yaqub got suspicious. Thereafter, repeated inquiries were made from Manzoor Ahmad who ultimately disclosed that he had committed a mistake and in greed for getting land he had given a buffalo and Rs, 700 to Allah Ditta appellant for the murder of Abdul Ghafoor deceased and, according to the programme, Ghafoor deceased was taken by the appellant and after return he was told that the appellant had done away with the deceased. When the whereabouts of the deceased were persistently being enquired into, Manzoor Ahmad (acquitted co-accused) also advised Allah Ditta appellant to disappear, otherwise the secret would be out and since Allah Ditta appellant could not be available, therefore, the secret would remain a secret. Muhammad Yaqub complainant got suspicious that his brother was killed by the appellant in conspiracy with Manzoor Ahmad (acquitted co-accused), for a consideration of a buffalo and Rs, 700 and in the murder, Mehru husband of Mst. Kammon (acquitted co-accused) mother-in-law of the appellant, and others had also aided.
' The motive for the murder of Abdul Ghafoor deceased has been stated in the F. I. R., that Manzoor Ahniad (acquitted co-accused) brother of the deceased had claimed one-half of the lot of land allotted in the name of their father Allah Rakha (P. W. 8) under the ,Co-operative Societies Scheme.
Under the Scheme, the eldest son was to inherit the said land after the death of father but Manzoor Ahmad is alleged to have asked the deceased to get his name entered as a co-sharer in the revenue record whereupon the deceased replied that he would do so at the proper time as the father was yet alive. Manzoor Ahmad was not satisfied and, therefore conspired to kill Abdul Ghafoor deceased in the manner, as stated above.
4. There is no direct evidence in the form of eye-witness account in this case, However the prosecution case consisted of the following pieces of circumstantial evidence :-
(1) Last-seen evidence by Muhammad Hussain (P. W. 6) who is first cousin of Muhammao Yaqub P.
W. And the deceased, and Muhammad Amin (P. W. 7), a distant relative of the deceased and Yaqub P. W., Mst. Salima Bibi wife of the deceased was not produced as being unnecessary ;
(ii) Extra-judicial confession made by the appellant before Jan Muhammad (P. W. 12) and Muhammad Din (P. W. 13) on 17th January, 1973 (who are alleged to have produced him before the police) to the effect that the appellant had killed Abdul Ghafoor deceased ; and
(iii) Recoveries.
5. After his production by the witnesses before the police, the appellant was formally arrested by Ghulam Hassan, A. S. I. (P. W. 15) on 17th January, 1973. Manzoor Ahmad, Shah Muhammad and Mst.
Kammon and Ishaq (acquitted co-accused) were arrested by Ghulam Hassan, A. S. I. On 7th January, 1973, 19th January, 1973 and 20th January, 1973 respectively. Thereafter, Shah Muhammad got recovered chadar (P. 1), shirt (P. 2) of Ghafoor deceased which were taken into possession vide memo. Exh. P. E. Dated 19th January, 1973, attested by Ramzan (P. W. 9), Muhammad Amin son of Bagh Ali (not produced), Muhammad Yaqub (P., W. 11), Muhammad Amin (P. W. 7) and Ghulam Hassan, A. S. I. (P. W. 15). Mst. Kammon led to the recovery of chadar poplin (P. 3) and sweater (P. 4) of the deceased which were taken into possession vide memo Exh. P. F. Dated 19th January 1973, attested by the same witnesses mentioned above. At the instance of Ishaq, shoes of the deceased (P. 5/1-2) were recovered on 20th January, 1973 vide memo Exh. P. G. Which was attested by Muhammad Anwar, Muhammad Ashraf (not produced), Muhammad Yaqub (P. W. 11), Muhammad Amin (P.W. 7) and Ghulam Hassan, A. S.
1. (P. W. 15). On the potation of the appellant, the following bones of the body were fire covered :-
(i) Scapula with clavicle.
(ii) Tibia.
(iii) Fibuli.
(iv) Ribs two.
(v) Teeth two-one canine, other molar.
(vi) Five small pieces of flat bones. ' and were taken into possession vide memo Exh. P. H. Which was witnessed by Muhammad Anwar, Muhammad Ashraf (not produced), Muhammad Amin (P. W. 7), Muhammad Yaqub (P. W. 11) and Ghulam Hassan, A. S. I. (P. W. 15). On the pointing out of the appellant, blood-stained earth, one silver amulet with black thread (a little bit eaten up and damaged) and some hair were recovered from the place where the dead body of the deceased was alleged to have been buried. These articles were taken into possession vide memo. Exh. P. J. Which was attested by Anwar, Ashraf (not produced), Muhammad Amin (P.W. 7), Muhammad Yaqub (P.W. 11) and Ghulam Hassan, A. S. I. (P.
W. 15).
6. The medical evidence in this case is only to the effect that Dr. Muhammad Ali, M. S., District Headquarter Hospital, Rahimyarkhan (P. W. 1) opined that some bones which were recovered by the police by means of memo Exh. P. H.
Were of a human being and his report is Exh. P. K.
7. Allah Ditta appellant did not lead any evidence in defense. However, in his statement under section 342, Cr. P. C. He has taken up the plea that Abdul Ghafoor deceased was his friend Yaqub (P. W. 11) wanted to take his land and he also resented appellant's friendship with the deceased and due to that enrnity, he was falsely implicated in this case. He also stated that he was arrested from Sahiwal District and had no occasion to make any confessional statement before Jan Muhammad (P. W. 12) and Muhammad Din (P. W. 13). It would be relevant here to refer to the defense plea of Manzoor Ahmad (acquitted co-accused), real brother of the deceased and the complainant. He stated that he had a separate lot of land and his father had given half of the !And from the lot to him for which Abdul Ghafoor was nominated as the successor. Muhammad Yaqub P. W. Was, therefore, aggrieved over this nomination as he being the eldest son wanted this nomination for himself. As Muhammad Yaqub P. W. Was inimical towards him, he falsely implicated him in this case in order to grab the land of his father alone.
8. Learned counsel for the appellant has argued that this was a murder not witnessed by any person and the conviction of the appellant, on the basis of the extra-judicial confession made before Jan Muhammad and Muhammad Din P. Ws. (which he challenges seriously having not been made by Allah Ditta appellant), cannot be sustained. He also contended that the recoveries in this case, including that of amulet on whic.1 the name of the deceased was carved, were fake. And lastly, according to him, conviction cannot be maintained merely on the basis of circumstantial evidence of a weak nature,
9. With the help of the learned counsel, we have gone through the entire record and the evidence.
In so far as the evidence of extra-judicial confession made by the appellant before Jan Muhammad and Muhammad Din P. Ws. Is concerned we find that the same has not been proved by their testimony. Jan Muhammad P. W. Has stated that he was present in his house along with Muhammad Din P. W. When the appellant appeared and made the confessional statement before them. He further stated that Muhammad Din had come to him to make purchases of spare-parts but he admitted that at his house there were no spare-parts and further that no purchases were made by Muhammad Din either before the statement of Allah Ditta appellant or thereafter. He also admitted in his statement that he was on visiting terms with the police prior to the making of confessional statement by the appellant. The most striking factor which should be taken note of in this respect is that the F. I. R. Was lodged on 13th December 1972 whereas the confession by the appellant is stated to have been made on 17th January, 1973 before Jan Muhammad and Muhammad Din P. Ws. Muhammad Yaqub (P. W. 11) has clearly admitted in his statement-"I have been going to the Police Station Jahanian for about four days after registration of the case but no clue of Allah Ditta was available. However, Allah Ditta was present at the police Station on 4th day".
If this statement of the complainant is accepted as correct, then on 17th December 1972 (four days after the registration of the F. I. R.) the appellant was already in the custody of the police, therefore, is was not humanly possible for him to have confessed his guilt before Jan Muhammad and Muhammad Din P. Ws. On 17th January, 1973. This seems to be unnatural and rather tends to prove that the confessional statement was extracted and it has to be rejected as false. Even otherwise, under section 26 of the Evidence Act no confessional statement made by an accused person would be admissible while he was in the custody of the police. Moreover, there was a long delay from the date of the occurrence to the date of making the confessional statement. It is also to be noted that the appellant has specifically denied having made any confessional statement before Jan Muhammad and Muhammad Din P. Ws. In this view of the matter, we are not prepared to believe their statements. We hold that there is no evidence of extra-judicial confession available against the appellant.
10. With regard to the recoveries including that of amulet, it is to be noted that Muhammad Amin (P.
W. 7) clearly admitted that "the police dug out the earth and recovered the hair, amulet and the blood-stained earth from the place. No bone was found lying hidden in the earth". On the other hand it is found in the statement of Muhammad Yaqub (P.W 11) that the police dug out some earth from that place and found the amulet and some hair which were also taken into possession alongwirh bones vide memo. Exh. P. J. Attested by him. Blood-stained earth was also taken into possession from that place. Then, in the statement of Muhammad Yaqub P. W. Again it is to he noted that the amulet and its thread were intact and were not damaged by the earth but this is quite contrary to the fact stated in Exh. P. J. Itself where it is stated that one silver amulet with a black thread, when recovered, was a little bit eaten up and damaged. Another fact which will go to prove that the recovery of amulet was fake and planted, is that the complainant Muhammad Yaqub did not state in the F. I. R. Nor in his statement before the pol:c2 prior to the recovery that this amulet was worn by the deceased when he left his house. Similarly no witness has stated with regard to the wearing of the amulet by the deceased before the incident in this case. We may also remark that the manner of recovery of some parts of bones of the body is also doubtful because the recovery memos show that the appellant as well as the other acquitted co-accused jointly pointed out the place where the deceased was alleged to have been buried after throttling. We are satisfied that the recovery of the amulet is not proved as a circumstance against the appellant. It may also be mentioned that the story of the prosecution is that the deceased was throttled by the appellant along with other acquitted co-accused and was buried in the sand. The recovery of blood-stained earth seems to be a fact which was introduced later and thus has no bearing upon the prosecution story. Moreover, it is to be noted that this bloodstained earth was not found to be of human origin by the Serologist because we do not find any report available on the record. Similarly, hair were also not found to be of Abdul Ghafoor deceased. Therefore, the recovery of these articles is of no help to the prosecution.
11. With regard to the dead body, we may mention here that the same was not found. Earlier, the story of the prosecution was that the deceased was buried in the sand and thereafter his body was thrown in the canal. It seems to he rather ridiculous that a few bones and teeth were recovered lying on the earth but these bones are not connected nor they have been found to be that of the deceased. The manner in which the recovery of these bones was effected, as already observed, is also doubtful.
12. Although circumstances cannot lie but they can mislead. They may also have been brought about for the very purpose of misleading and it is now settled that there can be no conviction unless and until the guilt the only possible inference from the circumstances. Another rule which I A to be taken note of, is that no conviction for murder is allowed unless the fact that there has been a death be proved fully which may be done either by direct evidence (e. g. The finding of the body) or by circumstantial eviden of exceptionally strong character. Mere suspicion is not sufficient to justify conviction. Reliance can be placed on The State v. Manzoor Ahmad (1). In Mst. Sairan alias Saleema v. The State (2) it has been held that as regards conviction based upon circumstantial evidence alone, the rule is that the facts proved must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.
The facts and circumstances revealed in the present case hardly satisfy the above test laid down by the Supreme Court.
13. In the end, we may also mention that the circumstance that the appellant had been last seen by Muhammd Hussain (P. W. 6) and Muhammad Amin (P. W. 7) is also not satisfactory. Mohammad Amin P. W. Is a relation of Muhammad Yaqub complainant from the side of his wife. Mnhammad Hussain (P. W. 6) did not support the prosecution version of having last seen the deceased with the appellant by them. Muhammad Amin, while examined in Court, specifically stated that he even did not remember what clothes were worn by Allah Ditta appellant. Even otherwise, the last-seen evidence is a weak type of circumstantial B evidence and no conviction can be based merely upon the fact of the deceased having been last seen in the company of the accused. See Naqibullah and another v. The State (3), Rehmat alias Rhaman alias Waryam alias Badshah v. The State (4) and Fazal Elahi alias Sajawal v. The State (5).
14. The circumstances of extra-judicial confession, recovery of bones, hair and amulet and the last- seen evidence seem to have been brought about fo the purpose of seeking conviction of Manzoor Ahmad and of the appellan by Muhammad Yaqub complainant. In fact, it was Muhammad Yaqub P.W. Who could have grievance because, in case the father of the complainant and the deceased had nominated an heir in the record of the Co-operative Society other than Muhammad Yuqub P.
W., it was he who, according to the rules of the Co-operative Society, being the eldest son was to get the land after the death of his father. So, the grouse or cause was for the complainant and not for Manzoor Ahmad (acquitted co-accused) and consequently the appellant who is a friend of Manzoor Ahmed. Thus, there was a lot of padding by the police in order to seek conviction of the appellant.
15. From the above circumstances, we are satisfied that there was no evidence worth the name against the appellant to warrant his conviction and the prosecution has utterly failed to bring home the guilt to the appellant. His appeal is, therefore, accepted and the conviction and sentence is set aside. He shall be released forthwith if not required to be detained in any other case. The reference for confirmation of the sentence of death is answered in the negative.
(1) PLD 1966 SC 664 (2) PLD 1970 SC 56
(3) PLD 1978 SC 21 (4) PLD 1977 SC 515
(5) PLD 1953 FC 214