1. ' SARDAR MUHAMMAD SHARIF KHAN, J.-This appeal is directed by the Government against the order of acquittal of the respondents made by the learned Sessions Judge, Rawalakot vide his judgment dated 19th March, 1975.
2. ' The respondents are the husband and wife who were challenged by Pallandri Police under sections 302 and 394, P. C. In the Court below for commission of offences of robbery and murder.
3. ' It was on 19-1-1974 at about 10 a.m. That a dead body was found lying in a Nullah on the borders of Norsa and Balauch by Fateh Muhammad who informed Col. Hidayat Khan for the same in Balauch Bazar wherefrom Col. Hidayat Khan accompanied by some others left for the place where the dead boy was found lying by Fateh Muhammad. On seeing the dead body it was identified by Muhammad Bashir, Muhammad Hussain; Karamat Hussain to be that of Faqir Mahammad resident of Khawas. At the time the dead body was seen by them blood was still oozing out from one of the nostrils of Faqir Muhammad deceased. The report P. A. Was sent to the Police under the signatures of Col. Hidayat Khan which was written by Karamat Hussain P. W. It was addressed to the Officer Incharge at Police Post Tarar Khel. The Police on receipt of this information, started an inquiry under section 174, Cr. P. C. The dead body was taken into possession by the Police and sent to Tarar Khel where the post-mortem of the dead body was performed by Dr. Muhammad Bashir, C. M. O. On 22- 1-1974. The article lying near the dead body were seized and the articles taken off from the dead body at the time of post-mortem were also seized by the Police.
4. ' In report P. A., it was stated that Faqir Muhammad visited Balauch Bazar on 17-1-1974 for change of currency notes of the denominations of Rs, 100 and Rs, 50 respectively valuing at Rs, 3,400 which, according to him, were going to be ceased as a legal tender. The currency notes of the value of Rs, 1,400 of the denominations of Rs, 100 and Rs, 50, were changed from Col. Hidayat Khan to sums of Rs, 840 and Rs, 560 in shape of currency notes of the denominations of Rs, 10 and Rs, 5 respectively.
5. After so much change effected, Faqir Muhammad had left with his currency note., of the value of Rs, 2,000 of the denominations of Rs, 100 and Rs, 50 to be exchanged with some body else. It was then told by Faqir Muhammad deceased that Pir Muhammad respondent expressed his willingness to him for change of currency notes on his person into small currency notes of the denominations of Rs, 10 and Rs, 5 respectively. Afterwards it was not known about the deceased where he had gone from the Bazar. It was then during the inquiry under section 174, Cr. P. C. That a report P. J. Was also made by Karamat Hussain P. W. To the Police that on 21-1-1974 in presence of Karamat Hussain, the maker of the report Col. Hidayat Khan and Hay. Muhammad Shafi P. Ws. It was confessed by Pir Muhammad respondent that Faqir Muhammad deceased went to his house on 17-1-1974 in order to get the currency notes of the denominations of Rs, 100 and Rs, 50 changed when he was killed by him with the help of his wife Mst. Begum Jan by name and the two sons; namely, Anwar and Liaqat and that he was also robbed of Rs, 3,400 which were found on his person. On report P. J., a case under sections 302 and 394, P. C. Was registered by the Police against the accused respondents who were arrested and it was on their instance that the articles entered in Memos P. H. And P. K. Were seized by the Police on 22-1-1974.
6. It was also mentioned in P. J. That some of the instruments including a copy of licence owned by Bostan Khan P. W. Were also seen by Karamat Hussain P. W. With Faqir Muhammad deceased at the time when on 17-1-1974 currency notes were got exchanged from Col. Hidayat Khan P. W. A sum of Rs, 3,400 and some documents concerning Faqir Muhammad deceased were received by the police from the possession of Pir Muhammad respondent and a sum of Rs, 530 consisting of currency notes of the denominations of Rs, 10 and Rs, 5 respectively from Mst. Begum Jan respondent.
7. ' In P. A. It was stated that the currency notes of the denominations of Rs, 100 and Rs, 50 of the value of Rs, 2,000 were still lying with the deceased for their change and according to the prosecution, that much amount in the above noted denominations of the currency notes and the currency notes of the denominations of Rs, 10 and Rs, 5 in a number given to the deceased by Col, Hidayat Khan were also recovered from Pir Muhammad accused-respondent. But the sum recovered from the possession of Mst. Begum Jan from her house remained unexplained though Muhammad Ayyub P. W., son of the deceased was produced to say that a sum of Rs, 4,C00 in shape of the currency notes of the denominations of Rs, 100 and Rs, 50 was carried by his father for change and that could be then in shape of the same denominations but a sum of Rs, 350 recovered from the possession of Mst. Begum Jan is in shape of Rs, 10 and Rs,
5. Mst. Begum Jan also made a confessional statement before the S. D. M., Pallandri. This was retracted by her before the trial Court alleging that it was made under the pressure etc. Of the Police.
8. ' There is no eye-witness appearing on behalf of the Prosecution to the occurrence. To prove the guilt of the accused-responents te prosecution has examined Karamat Hussain, Col. Hidayat Khan, Hay. Muhammad Shafi. Zenat Hussain, Muhammad Ayyub, Sardar Jehandad Khan, S.D.M. Pallandar Dr. Muhammad Bashir, Sub. Major Muhammad Sher Khan, Muhammad Sh leer, Bostan Khan, Amir Muhammad, Abdul Qayyum Constab, Abdul Majid, Constable, Munshi Anees-ul-Haque, Patwari, Munshi Muhammad Nawaz, Head Constable, Muhammad Ashraf, Assistant Sub-Inspector of Police and Muhammad Ishaqe, Sub-Inspector of Police.
9. ' The death of Faqir Muhammad is ascertained by the prosecution.
10. ' Karamat Hussain, Hay. Muhammad Shafi and Col. Hidayat Khan P. Ws. Were produced to testify to the reports P. A. And P. B. Though Karamat Hussain and Muhammad Shafi were also the marginal witnesses of the recoveries memos, etc. Extra judicial confession of Pir Muhammad was also to be proved by the statement of these witnesses which appears an important piece of evidence against the accused if it could be proved as such, but none of them was able to establish that the extra- judicial confession was over made Pir Muhammad accused-respondent before them. Col. Hidayat Khan did not at all speak anything regarding the extra-judicial confession of Pir Muhammad.
11. Karam Hussain and Hay. Muhammad Shafi do not support even the extra-judicial confession of Pir Muhammad in a direct manner as it was depicted in P. J. By Karamat Hussain P. W. Karamat Hussain's statement before the trial Court rather belies him in respect of extra-judicial confession allegedly made by Pir Muhammad. From his statement before the Court it is quite evident that no extra-judicial confession, whatsoever, was ever made by Pir Muhammad either before Karamat Hussain or before any of the remaining two witnesses. Thus, the version of extra judicial confession of Pir Muhammad given in P. J. Was falsely incorporated therein, most probably on the advice of the police.
12. ' One Zenat Hussain is produced to show that Faqir Muhammad and Pir Muhammad after the close of shops at Balauch were seen going together on 17-1-1974 towards the house of the latter. This witness is related to Karamat Hussain P. W. Who is admittedly inimical to Pir Muhammad respondent and he is the man who was on the scene appearing to move the case against the accused. Muhammad Sher P. W. Was also produced to show that Faqir Muhammad was seen by him at the house of Pir Muhammad accused in the morning of 18-1-1974 while reciting Holy Qur'an.
13. This witness was also asked by Karamat Hussain and Hay. Muhammad Shafi to give the evidence.
14. According to him he related this fact to Muhammad Ayyub son of the deceased after four or five days when Faqir Muhammad was allegedly seen by him at the house of respondents. He remained at his house by the night of 18th and then left for Tatta Pani where he lived for four or five days and when he came back to his house, he was informed by his wife that Faqir Muhammad was killed.
15. Muhammad Ayyub son of Faqir Muhammad deceased is silent before the Court to support this witness that he informed him about the presence of Faqir Muhammad deceased at the house of the accused-respondents. It all means that Muhammad Sher returned to 'his house from Tatta Pani after 21-1-1974 and then visited the house of Muhammad Ayyub for condolence, if any but the statement of Muhammad Ayyub was recorded on 21-1-1974 where this men was shown to have told Muhammad Ayyub that Faqir Muhammad was seen by him at the house of the respondents.
16. How it could be possible for a man who never met Muhammad Ayyub on 21-4-1974 or before to have deposed about the fact which was falsely put into the mouth of Muhammad Ayyub and Muhammad Sher, P. Ws. The statement of Muhammad Sher was recorded in the last week of April, 1974, after the lapse of a period of more than three months. It was after a considerable delay, not explained, that his statement was recorded by the police and as such it cannot be held with certainty that any of the witnesses of the prosecution saw Faqir Muhammad deceased accompanying Pir Muhammad to his house or he was ever seen there at, as alleged by the prosecution. Thus the concoction in production of evidence of this nature is evident on the part of Karamat Hussain and Hay. Muhammad Shafi along-with the Police.
17. Then we proceed to look into the confessional statement of Mst. Begum Jan. The statement of Mst.
18. Begum Jan is PS. It does not bear the required certificate of the Magistrate recording the statement at the end. The Magistrate appearing as a witness, simply stated that her statement was recorded in a free atmosphere and it was never stated by him that the statement on the part of Mst. Begum Jan was voluntarily made by her and so it loses all its evidentiary value. Moreover, a perusal of the very statement does not inspire confidence so as to be taken it to be true. A sum of Rs, 5 currency notes in no way could be connected with commission of the offences. Pir Muhammad is a shopkeeper running the business with a handsome capital as deposed to by Col. Hidayat Khan P.
19. W. So the recovery of the amounts from the house of the respondents cannot be materially treated as incriminating in character. The recovery of the instruments from the possession of Pir Muhammad is also doubtful. It was held before the Court that Assistant Sub-Inspector of Police and other persons except Abdul Qayyum Constable and the accused remained outside the house.
20. Abdul Qayyum accompanied by Pir Muhammad accused went inside the house and a box was brought out which was opened wherefrom instruments pertaining to Faqir Muhammad deceased were recovered. There is no independent witness to evidence the recovery of the instruments.
21. ' One Amir Hussain P. W. Is also shown as a marginal witness of the recovery memos. P. H. And P. K.
22. But he was not produced. His name on one of the recovery memos seems to have been inserted afterwards and that is why it seems to me that he was given up by the prosecution. Karamat Hussain and Hay. Muhammad Shafi were the only witnesses of the recoveries whose statements in respect of extra-judicial confession were not believed as reasoned above and so their testimony regarding the recoveries cannot also be worthwhile.
23. ' How could it be believed that the instruments allegedly recovered from the possession of Pir Muhammad were kept by him as a proof against himself which were not of any value, whatsoever, to him. Again, blood traces were found to the house of one Sher Dii of Balauch vide statement of Col. Hidayat Khan, whereas the respondents live in a different village at a considerable distance and as such any effort afterwards to make the accused to tread a special path is in no way helpful to the prosecution. The alleged recovery of incriminating articles in relation to blood is of no worth because there is no report of a Serologist to establish that the blood-stained articles recovered from the house of the accused were stained with human blood and of the same group as that of the deceased and so on and so forth. The respectable persons in the locality where the house of the accused is situated are found there but none of them was kept along by the police when the alleged recoveries were made from the house of the accused respondents. Feroze Ali Chowkidar who could be a recovery witness to the memos. Was also sent away at the time when the recoveries were shown to have been made in presence of Karamat Hussain and Hay. Muhammad Shafi. Karamat Hussain appears to be deadly against Pir Muhammad who got an inquiry initiated against him for embezzlement of money while in service of Post and Telegraph Department and Muhammad Shafi is an associate of Karamat Hussain and as such no reliance can be placed on the testimony of these two witnesses at all who stand inimical to Pir Muhammad accused- respondent. Furthermore, in the medical report, it is shown that the death of Faqir Muhammad occurred on 19-1-1974 in the morning and so the duration of period between the death and post- mortem was at first given three days but it was tampered with afterwards when the question of the time of occurrence was taken into consideration by the police. It shows that on the letter's' o the word 'days' to the word `to' was over written before the full-stop after '3 days' and further '4 days' were added so as to bring about the day of occurrence on 18-1-1974. Thus, a doubt is also created in the mind that Faqir Muhammad might have been killed somewhere on 19-1-1974 and not on 18- 1-1974, as alleged by the prosecution. All these circumstances stated above, go to show that the prosecution was not able to prove their case against the accused-respondents and so the learned Sessions Judge was justified in acquitting the respondents and I also hesitate to pass any order against the accused-respondents and leave the matter to Allah : ' In conclusion, thus, this appeal stands dismissed.