ASLAM RIAZ HUSSAIN, J.-Allah Bakhsh, aged 19 years, was tied under section 302 for the murder of his sister, Mst. Ghulam Fatima, and under section 317, P. P. C. For abandoning her son, aged one year, in a cotton field near the place of occurrence. He was found guilty under both the charges by the learned trial Court vide its order dated 12th April 1969 and was sentenced to death under sec-- tion 302, P. P. C. And to three years' R.
1. Under section 317, P. P. C. The sentence under section 317, P. P.
C. Was ordered to take effect only if the death sentence is not confirmed by the High Court. Allah Bakhsh has filed an appeal against his conviction and sentence under both the charges and the case has also been referred to us under section 374, Cr. P. C. For confirmation of the death sentence. We propose to dispose of the appeal and the murder reference by a single order.
2. The facts of the prosecution case as stated by the prosecution witnesses are briefly as follows .:- Mst. Ghulam. Fatima alias Mst. Ghulaman deceased was the sister of Allah Bakhsh appellant. About 13 years ago she was abducted by Ramzan alias Ghulam. P. W. 11 (PLD 1964 Dacca 710), who was the resident of another Chak i.e. Chak No. 68/4-R. Rumzan alias Ghulam P. W. Then married Mst.
Ghulam. Fatima. After sometime there was compromise between Ramzan alias Ghulam P. W. And the family of Mst. Ghulam Fatima deceased. Her family reconciled to the situation and she started visiting her parents and other relatives of and on. According to the prosecution story about, 10 or 15 days before the occurrence she had come to visit Mst. Saidan, her mother's sister, in Chak No. 42/3- R in the area of Police Station Okara, District Sahiwal. She brought' her daughter aged 3 or 4 years' and on aged about one year with her. Three or four days later her husband came and took away the girl but the by remained with Mst. Ghulam. Fatima. After staying with Mst. Saidan for some days she went to visit her parents, where she stayed for a day or to and then returned to the house of Mst. Saidan P. W. And stayed with her for another to or three days. She left for her own house on the morning of 10th January 1968. Her brother Allah Bakhsh appellant, who "had also come to the house of Mst. Saidan P. W. a day earlier, accompanied her for getting her seated in a bus at Okara. Mst.
Ghulam Fatima was carrying a big trunk containing a razai while Allah Bakhsh appellant was carrying her infant son. Siraj Din P. W. 9 and Muhammad Sharif P. W. 10 who were proceeding towards Okara on bicycles at the same the, passed the appellant and the deceased about 2 or 3 killas away from the village and asked them where they weft. Going, where--upon the deceased told them that she was returning to her house and that her brother was accompanying to get her seated in a bus. Lower Bari Doab Canal lay, on the way.
When the appellant and the deceased reached the canal they started walking along its bank. At a place about: one mile away from Chak No. 42/3-R., on the canal bank, the appellant suggested to her sister that as it was very cold they should light' a fire to warm themselves. Both of them sat down and lit a fire. At that the, the appellant attacked his sister from behind with a toka which he had brought with ham. After killing Mst. Ghulam Fatima he broke open the trunk, placed her dead body in it and threw the trunk in the canal. He also threw toka P. 1 in the canal ; placed the infant son of her sister in a nearby cotton field belonging to Siraj Din P. W. 9 .And then left. The motive for the offence is stated to be that the appellant had not reconciled with the elopement of her sister with Ramzan alias Ghulam P. W.
According to the prosecution story, on the following day Mst. Waziran P. W. 4, Mst. Aishan P. W. 5 and Mst. Hallman P. W. 6 of Chak No. 42/3-R. Went to the cotton field of Siraj Din P. W. For picking cotton.
They heard the cries of a child in the field and found a male child aged about one year. They picked up the child ; brought it to the village and handed it over to Ismail P. W. 12, who is the uncle of Mm Waziran P. W.
4. Ismail P. W. Took the child for a round in the village. Mst. Saidan recognised the child as the son of Mst. Ghulam. Fatima deceased. The child was made over to her and she then took it to the parents of Mst. Ghulam. Fatima in Chak No. 38-D.
Four days later on 15th January 1968 Allah Bakhsh appellant is alleged to have approached Mohammad Siddique P. W. Ali Muhammad (given up) and Ismail P. W., who were sitting at the dera of Muhammad Siddique P. W. And made a clean breast of the whole affair. These persons then took the appellant to the police station where Muhammad Siddique P. W. Lodged a report Exh. P. A. After recording the report Gulzar Hussain S. I. P. W. 14 arrested the appellant and brought him to Chak No. 42/3-R. The latter is then said to have led the police to a place on the bank of Lower Bari Doab Canal, situated at a distance of one mile from the village, where he had 'allegedly killed his sister.
The earth at that place "was found blood-stained and was taken into possession by the investigating officer. The appellant also pointed out the place in the canal where he had thrown the trunk and the toka. The S. I., thereupon, requisitioned the services of Bashir boatman P. W. 3 who after diving twice or thrice in the canal and making a search, brought out toka P.
1. Which was stained with blood. The trunk con--taining the dead body was, however, not found. After completion of the investigation the appellant was challaned and ultimately sent up for trial.
3. The appellant, when examined at the close of the prosecution evidence, admitted that his sister had been abducted by Ramzan alias Ghulam P. W. And that subsequently there was a compromise. He also admitted that Mst. Ghulam Fatima deceased had visited Mst. Saidan in Chak No. 42/3-R, and that she had also visited, her parents house. He, however, denied having accompanied her when she left for her own house or having killed her on the way. He denied having made any extra-judicial confession to Muhammad Siddique and other P. Ws. Or to have led to the recovery of toka P.
1. He pleaded that he had been falsely involved by Muhammad Siddique, P. W. Because the latter had reported against him for the theft of his sugar and also because his (appellant's) brother had abducted a woman of his Raiyat.
No evidence was produced in defence.
"During the cross-examination of Mst. Saidan P. W. 7 it was suggested .By the defence that on the day of occurrence the husband of the deceased had left the house of Mst. Saidan little earlier saying that he would meet his wife, outside the village and that the appellant had left with his sister to see her of and had returned after handing over to her husband at a distance of three or four killas from the village.
4. We have heard the learned defence counsel as well as the learned counsel for the State. We have also gone through the entire record. It might be stated here that Mr. R. S. Sidhwa; the learned Advocate, appearing for the State has frankly conceded that the prosecution case has not been made but beyond reasonable doubt and that he does not support the conviction.
5. Notwithstanding the concession made by the learned State counsel we have considered the case on merits.
6. There is no eye-witness of the actual occurrence in this case and the dead body has not been recovered. The prosecution has relied on the following piece's of evidence in support of its case :-
(i) evidence of motive;
(ii) evidence of extra-judicial confession before Siddique and Ismail P. Ws. ; (i.e) evidence of the appellant having been last seen together with the deceased by Siraj P. W. 9 and Muhammad Sharif, P. W. 10;
(iv) the recovery of blood-stained earth from the canal bank on the pointing out .Of the appellant ;
(v) the recovery of blood-stained toka, Exh P. 1, from the canal at the pointing out of the appellant which was found to be stained with human blood;
(vi) the recovery of one year old male child from the cotton-field near the place where toka, Exh. P. 1 was brought out from the canal.
7. We may first consider the evidence with regard to motive. According to the prosecution Ramzan 'alias Ghulam P. W. Had abducted Mst. Ghulam Fatima about.13 years ago, when the appellant was only 8 or 9 years of age.
According to- the prosecution version Ramzan P. W. Had married the deceased; and her family had reconciled to this fact. It is also admitted that Ramzan P. W. Had reached a compromise with the parents and brothers of Mst. Ghulam Fatima and that after the compromise she used to visit her parents and other relatives of and on, for the past about 10 or 12 years. In other words the marriage between Mst. Ghulam Fatima and Ramzan alias Ghulam was ,an accom--plished fact which had been "accepted by the family and to which the elders of the family had .Reconciled. The appellant grew up under these conditions and could have had no reason for any resentment against his sister. We, therefore, fined that the alleged motive has not been proved satisfactorily by the prosecution.
8. Ismail, P. W, 12 and Muhammad Siddique P. W. 13 have deposed with regard to the evidence of extra judicial confession alleged to have been made by the appellant. Ali Muhammad, another witness, who is said to have been present at that the, has not been produced by the prosecution of having been won-over. Both these witnesses, namely, Ismail and Muhammad Siddique have made numerous concessions in favour of the appellant, but the learned trial Court has believed them in spite of these concession. The learned defence counsel has, however, vehemently assailed their evidence. We may therefore examine the evidence with regard to the alleged extra-judicial confession.
9. According to the prosecution story, Allah Bakhsh appellant murdered his sister early in the morning on the 10th of January 1968, and thereafter abandoned her child in a cotton-field nearby.
The child was discovered by Mst. Waziran, Mst. Aisha and Mst. Haliman P. Ws. Next day i.e. On the 11th January. It was brought to the village and handed over to Mst. Saidan. The latter took the child to the parents of Mst. Ghulam Fatima on the next day i.e. On the 12th January. It is, therefore, obvious that the fact that Mst: Ghulam Fatima was missing, came to be known to the residents of the village on the 12th January and if the appellant had in fact accompanied Mst. Ghulam Fatima deceased to the bus stand, they would have concluded that he had done her to death. This is also borne out by the last few lines of the First Information. Report. It is sur--prising, therefore, that no report was lodged with the Police till the 15th of January 1968, and that to after the appel--lant had allegedly, made a confession before 'Muhammad Siddique and others present in his house. It is in evidence that the appellant is resident of Chak No. 38/D while Muhammad Siddique resides at Chak No. 42/3-R which is situated at a distance of 25 miles from the appellant's Chak. It is also admitted that the relations between Muhammad Siddique P. W and the appellant were strained on account of the abduction of Mst. Bhago by the brother of the appellant and the report made by Muhammad Siddique against the appellant for theft. In view of these circumstances there was; no earthly reason why the appellant should have chosen to go all the way to Chak No. 42/3-R to make a confession to Muhammad Siddique P. W. If he did feel like making a clean-breast of the matter, he would either have confessed it before his, own parents or before some important person of his own village. The evidence of extra-judicial confession allegedly made to Siddique P. W. And some, others present at his house, therefore appears to be suspicious.
10. The learned trial Court has observed that these witnesses had made certain concessions with a view to help the appellant, but he still believed their statements with regard to the extra-judicial confession on the ground that the concessions made by them in favour of the appellant did not represent the truth. According to him, Ismail P. W. Had tried to help the appellant because he is a Muslim Sheikh like the witness himself and that Muhammad Siddique P. W. Who lives in the same village, as the mother's sister of the appellant (i.e. Mst. Saidan P. W. 7) has been influenced by her to make these concessions. We feel that these are not sufficient reasons which could have induced the P. Ws. To resile from the earlier statements in order to favour the appellant. It cannot therefore, be said with any certainty that they were trying to help the appellant and that what they have stated during the cross-examination at the trial is false and what they had stated earlier represents the truth. It is equally possible that such witnesses, who are admittedly amenable to influence may have made wrong statements earlier, and were telling the truth at the trial during the cross-examination. Implicit reliance cannot therefore be placed on such witnesses.
There are, indications in their statements that instead of helping the appellant they are in fact supporting the prose--cution before the trial Court. A perusal of evidence of Ismail P. W. 12 would show that he had not stated before the Committing Magistrate that the appellant had informed them that he had thrown the toka in the canal. He leas, however, supported the prosecution at the trial by saying that the appellant had given them this information.
Similarly Muhammad Siddique P. W. Also did not state before the Committing Magistrate that the appellant had informed him while making the extra-judicial confession that he bad killed his sister with a toka and that he had thrown the dead body as well as the toka in the canal. But he has stated so at the trial and thus has supported the prosecution version. Therefore, how can it be said that these witnesses are favouring the appellant and not supporting the prosecution version. In view of the above-mentioned circumstances we feel that the prosecution has not been able to prove the extra---judicial confession satisfactorily.
11. According to the prosecution version, after his arrest, the appellant led the police to a place on the canal bank where he had allegedly murdered his sister. The earth at that place was found to be blood-stained and was, therefore, taken into possession. The inference sought to be drawn from this was that the appellant knew the place where the murder had been committed, which would be a circumstance tending to show that he had himself committed the murder. The Chemical Examiner, however, reported that the earth taken from the spot was not found to be stained with blood at all. It was therefore, not forwarded to the serologist. Consequently, this piece of evidence is useless for the prose--cution and does not tend to show that the appellant knew the spot where the murder had taken place.
12. It is further alleged by the prosecution that the appellant had pointed out to the investigating officer the place where he had, thrown the toka and the box into the canal. The investigating officer, thereupon, requisitioned the services of a boatman i.e. Bashir P. W. 3 who after diving to or three times into the canal, at the place pointed out by the appellant, brought out toka Exh. P. 1, which was found to be stained with blood. The trunk containing the dead body however, could not be found.
This recovery seems to be highly suspicious. Strangely enough, the toka was found to be stained with, blood although it had been lying in the canal for about five days. I he origin of the blood, however, could not be determined as it had disinteg--rated. It is also surprising that although the toka was recovered from the canal, the trunk carrying the dead body, which was certainly much bigger and heavier and must have at once got filled with water, was- not recovered. The learned trial Judge has himself disbelieved this recovery. He has made the following observations in this connection, in paragraph 13 of his judgment :- "It appears that in his keenness to strengthen the' prose--cution case the Investigating Officer has introduced the story of the recovery of the toka from the canal."
It is, therefore, obvious that the police had indulged in padding and had manufactured evidence with a view to streng--then the prosecution case. This attempt on the part of the Investigating Agency has rendered the entire prosecution , case doubtful.
13. Siraj P. W. 9 and Sharif P. W. 10 have stated that they met the appellant and his sister (the deceased) while going towards Okara, at a distance of about to or three Killas away from the village. At the trial, Sharif P. W. 10 resiled from his earlier statement and was declared hostile. The evidence of Siraj P. W. 9 also does not inspire confidence. The evidence of these to witnesses can, there--fore, not be relied upon.
14. This brings us to the alleged recovery of the child, on the next day after the occurrence, from the cotton-field near, the place from where the blood-stained toka is said to have been recovered. Mst.
Waziran (P. W. 4), Mst. Aisha (P. W. 5), and Mst. Haliman (P. W. 6) have deposed about this recovery.
They have stated that three of them had gone to the cotton-field of Siraj P. W. To pick cotton when they heard the cries of a child and by looking around they found a male child aged about a year or 1-- years. They brought him back to the village where Mst. Saidan P. W. Identified him as the son of Mst. Ghulam Fatima deceased and took the child to her (the deceased's) parents. The statements of these witnesses are, 'however, full of serious discrepancies. Mst. Waziran (P. W. 4) has stated that she and her companions went to pick cotton at 10 or 12 a.m. On that day. Mst. Aisha (P. W. 5) has stated that they had gone there early in the morning, while Mst. Haliman (P. W. 6) has stated that they went to the field at dopehr weld. Again, according to Mst. Waziran (P. W. 4).
"I brought that child to my house and gave milk to him. My maternal uncle Ismail Chaukidar returned to the house. I gave the child to him and told him how we had found the child. Ismail took the child for a round in the village. He took the child to the house of Siddique Lambardar where Mst.
Saidan P. W., came and said that the child was that of Mst. Ghulaman and took the child away with her."
Mst. Aisha agreed that Ismail P. W. Went round the village with the recovered child and took him from door to door and stated that - "when he reached the house of Mst. Saidan she claimed the child."
Mst. Haliman on the other hand stated that :- Mst. Waziran picked up the child and brought him to her house. She gave it to Ismail Chaukidar who kept the child with him for a night. Next day Mst. Saidan came and took away the child saying that the child was that of her daughter. On this very point Mst. Saidan (P. W. 7) stated as follows in her statement before the Committing Magis--trate (which has been transferred by the trial Court to the Sessions file under section 288, Cr. P. C. And on which he has placed reliance in preference to her statement at the trial) :- "On the next day Mst. Naziran, Mst. Waziran, Mst. Haliman and Mst. Aishan brought the child of the deceased at my residence, who told me that they went for picking cotton where they found the child weeping, whom they brought to me."
These discrepancies, most of which have been made during the examination-in-chief, cast a serious doubt on the veracity of the witnesses.
15. Apart from the above-noted discrepancies there are inherent improbabilities in this version about the recovery of the child from the cotton-field. Firstly, why should the appellant who was cold-blooded enough to have slaughtered his sister because of her having eloped with Ramzan alias Ghulam had spared the of spring of her marriage with the said Ramzan? According to the prosecution version after com--mitting the murder he did not run away but cooly broke open the trunk, took out its contents, stuffed the dead body into it, and then threw it into the canal. He, allegedly, also threw the toka into the canal. In the first place it is against common-sense that after killing the deceased, the appellant would have stayed so long at the spot which was situated on a well-frequented service road along the canal bank and took the risk of being caught. He would simply have pushed the dead body into the canal along with the infant and the toka without any delay and, would have carried the trunk with him as before. In any case, when he was taking so much care about concealing the evidence of the murder, there is no reason why be should have left the tell--tale child in the field. Certainly it was not out of com--passion.
Secondly, how was it that the child lay undiscovered throughout that day (the murder had taken place early in the morning on the 10th January) and till noon the on the next day, when the place where he is said to have been abandoned is shown in the map to be quite near the service road along the canal, which according to Mst. Haliman P. W. Is a "frequented place" and which, as every one knows, is used more or less as a thoroughfare. It may be noticed in this connection that Mst.
Haliman (P. W.) has stated that the child was not lying in the cotton-field but in an open space by the side of the canal. He could not, therefore, lie unnoticed for such along the.
Thirdly, how is it that the infant survived the hunger and the cold weather during the night in the month of January. If it was correct, he would not have had enough energy left by the next morning even to cry.
In view of the above-noted facts, the recovery of the child; as alleged by the prosecution, is highly doubtful and appears to be just another attempt by the Sub-Inspector to streng--then the case against the appellant.
16. As already observed, the dead body and the trunk have not been recovered. The earth taken into possession from the alleged place of occurrence on the canal bank, was not found to be stained with blood at all. The recovery of the toka has already been disbelieved and even the learned Sessions Judge did not rely on it. The recovery of the child has been found by us to be extremely doubtful. The evidence of Sharif and Siraj P. Ws., who said to have met the appel--lant and the deceased when they were going to the bus stand at Okara; has not been relied upon by us. What remains therefore is the evidence of Mst. Saidan made before the Committing Magistrate which has been transferred to Sessions file and relied upon by the trial Court. She resiled from her previous statement and deposed, at. The trial that in fact the appellant who had accompanied his sister had returned shortly afterwards, after handing over Mst. Ghulam Fatima to her husband Ramzan alias Ghulam who had come to take her but had left the house a little earlier saying that he would meet her outside the village. Before the Committing Magistrate she had stated only that the appellant accompanied his sister Mst. Ghulam Fatima in order to get her seated in a bus. The trial Court has believed her statement before the Committing Magistrate. The reason given by him for doing so is that, being her aunt (mother's sister) she has resiled from the truth in order to save the appellant. We feel that it cannot be said with any amount of certainty that what she has stated at the trial is any the less true, because even there, i.e. At the trial, she has stated that the appellant accompanied Mst. Ghulam Fatima when she left her Mst. Saidan's house. It is only when she was questioned as to the details during the cross-examination that she deposed about the appellant "having returned shortly afterwards, after handing over Mst. Ghulam Fatima to her husband. She was not put any such questions before the Committing Magistrate although an opportunity to cross-examine her was given. One cannot be certain that she would not have given the same details, if she was asked about them before the Com--muting Magistrate. Even if she, as well as Sharif and Siraj P. Ws. Were to be believed, their evidence would only show that the appellant and the deceased were last seen alive together. This is in itself, without being supported by any other evidence, is not sufficient to lead one to an irresistible conclusion that the appellant had done away with his sister, specially when the dead body itself has not been recovered. In the present case there is no supporting evidence in the shape of recovery of incriminating objects at the pointing out of the. Appellant or any other ,circumstance tending to lead to the inference than the appellant was guilty of killing his sister.
In a similar case recently decided by the Supreme Court i. e. Lal Shah v. The State (Cr. Appeal No. 56 of 1969 decided on 3rd March 1970) where also the appellant, was accused of having killed his sister, on account of a similar motive, when he had accompanied her to Okara to get her slated in a bus anti was alleged to have left her infant child in a nearly field after committing the murder, their Lordships of the Supreme Court, did not, consider the evidence of 'last seen together with deceased', sufficient to sustain conviction in the absence of supporting evidence.
17. Conviction can be based on circumstantial evidence only if 'the facts proved are wholly incompatible with the innocence of the accused and are incapable of explanation upon any other hypothesis than that of his guilt.
Viewed in the light of this principle, we feel that the circumstancial evidence in the present case is not sufficient to sustain conviction.
18. In view of the above discussion we feel that the prosecution has not been able to prove its case beyond reasonable doubt. We give the appellant benefit of doubt and accept his appeal. The order of the learned trial Court is accordingly set aside and the appellant is acquitted. The reference is also disposed of accordingly.