1. MUHAMMAD AFZAL ZULLAH, J. These two appeals by two convicts in a murder case, are being disposed of together. They were convicted and awarded sentences of death and fine for the murder of the husband of Mst. Naima Jan appellant. Their appeals were dismissed by a Division Bench of tae Lahore High Court, on 5-11-1975. The sentences were confirmed. They were allowed special leave to appeal to examine "the unsatisfactory features in the case".
2. It was an unwitnessed crime. The dead body of Adam Khan who was brother of Farman appellant and husband of Mst. Naima Jan appellant was found in a ravine a few miles away from his house.
3. Qalander Khan P. W, a Zamindar and co-villager of the appellants lodged the F. I. R. Exh. PA on 24- 3-1973. It disclosed that there were legature marks on the neck of the deceased. The appellants were suspected of having committed the murder because they had an illicit liaison and wanted to remove the deceased from their way. It was also mentioned in the F. I. R. That the deceased wanted to migrate to another place so as to avoid the scandal. He had for that purpose entered into an agreement of sale of his land with Dilawar Khan P. W. And had obtained Rs. 2,000 as earnest money, some days earlier.
4. During the investigation the appellants allegedly made extra-judicial confessions before Qalandar Khan P. W. On 25-3-1973. He produced them before the police on 27-3-1973. After their arrest Farman appellant is said to have led to recovery of blood-stained string (rasi). Blood-stained earth was taken from a manger in the house of the deceased. The origin of blood, on chemical analysis, was discovered as human.
5. At the trial the prosecution led evidence to prove the motive, the extra-judicial confessions and the incriminating recoveries. Medical evidence confirmed death by strangulation on the night between the 23rd and 24th of March 1973. The defence plea was of total denial and false implication by those who were also suspected of the crime. Mst. Naima Jan appellant made the following statement:- "On account of enmity of the some P. Ws. Sikandar P. W. Was also sus--pected of the crime. My husband told me that he was going to village Jhemra and from there he would go to Rawalpindi for getting his passport made. He had taken some money with him. He went on Friday at about peshiwela and on the following day I was informed by a grazier that the dead body of my husband was lying in 'the Kasi. I informed his brothers who after seeing the body reported the matter to the police. Police joined many persons in investigation including Sikandar P. W., Yusaf and many others.
6. I along with Farman was also taken to the P. S. Later on police left the other suspect one by one and challaned me at the instance of some of the P. Ws. I remained with the police from 24-3-73 onward as such never made any confessional statement before Qalandar or any body else."
7. The learned trial Judge relied upon all the incriminating elements in the prosecution evidence: So did the learned Judges in the High Court.
8. The unsatisfactory features of the case relate to the evidence on motive; the manner and time of the arrest of the appellants; and some doubtful elements regarding the extra-judicial confessions.
9. No doubt a motive was disclosed in the F. I. R. By Qalandar P. W. That there was a rumour in the village about illicit connection between the No appellants, that for this reason the deceased wanted to settle along with Mst. Naima Jan appellant in another village and that he sold his land for this purpose. The defence denied it. Mst. Naima Jan stated that the deceased had told her that he would go to village Jhemra and from there to Rawalpindi "for getting his passport made" and that he had taken some money with him. An indirect suggestion was that he might have been killed in a robbery. Dilawar P. W. Whose name is mentioned in the F. I. R. As purchaser of the land, deposed that he had paid Rs. 2,000 to deceased as earnest money and that deceased had told him that he was selling his land because he wanted to go to Greece. This supports the defence version. Sikander P. W. a brother-in-law of the deceased no doubt stated that the deceased had told him about his intention to settle in village Jhemra, But there is no reason to disbelieve the independent witness, Dilawar, on this point.
10. Several co-villagers of the appellants and the deceased appeared as witnesses but none deposed about the suspicion against the appellants, as was disclosed in the F. I. R. Even Sikander P. W. Did not do so, nor Qalandar P. W., the first informant deposed at the trial about this suspicion from his own knowledge. Instead, he put it in the confession which Farman appellant allegedly made to him.
11. Thus apart from the confession, the evidence does not support the prosecution version about motive, if at all, it tends to support the defence.
12. According to Bedar War P. W., the investigating officer, he arrested the appellants on 27-3-1973, while the blood-stained earth was recovered on the same day, he recovered the string on 29-3- 1973. Karam Dad, the recovery witness stated that 'he joined police investigation' at Police Station Hazara. The police had called him in connection with an application made by him in another matter. It is then that he witnessed the recoveries in that case. Although he did not disclose the date of recoveries, but in cross-examination he admitted that it was the day following the recovery of the dead body which admittedly was 24-3-1973. This witness admitted that the police did not ask him to join the investigation on that day-he had "volunteered to accompany him (the S. H. O.)" to the spot. Thus the statement of this witness shows that he witnessed the recoveries on 25-3- 1973. This gets confirmed from the statement of Qalandar P. W. Also. He stated in cross- examination that "on the following day of my report the accused came to me at about 9-013 a.m. I sent them back to their house and told them that I will produce them before the police on its arrival. The police arrived in the village at 11-00 a.m. In the house of Musa. The accused also came to me at 11-00 a.m. And I produced them before the police and the house of Musa, Thereafter we went to the Dhok of the accused and reached there at about 12-00 noon. First of all the police recovered string (rasi) which was under the mattress. The matress was lying in the courtyard of the house of Adam Khan deceased and it was not lying inside the Bhura. Thereafter police took blood- stained earth into possession." This would show that the F. I. R. Having been lodged on 24-3-19.73, the appellants were produced before and arrested by the police on 25-3-1973 and by 1 o'clock on that date both the recoveries had been made. It is impossible to reconcile the statement of the investigator with that of the recovery witnesses. The recoveries are obviously fake.
13. The relevant prosecution evidence (except the statement of Qalandar and investigator) lends to show that the appellants were made to join the police on the night of 24-3-1973 and they were not allowed to leave till the formality of their challan in this case. Statements of Abdul Khaliq, Kale Khan, Sikandar P. Ws. Can be referred to in this behalf. There is no reason to disbelieve them. 1t was impossible for the appellants, as Qalandar would have the Courts believe, that they came to him on the morning of 25th to make the alleged confession. They at that time, according to other P. Ws., were with the police and "the police had not permitted them to leave". Thus the evidence of extra judicial confessions like that of recoveries, is also fake.
14. The above discussed features of this case have not been given due attention by the learned Courts below. The accepted principles of appreciation of evidence, if followed would not lead to the inference of guilt. The prosecution has failed to prove the charge. These appeals are allowed. The convictions and sentences are set aside and the appellants are acquitted.