KARRAR HUSSAIN ZAIDI, J.-Muhammad Boota has been convicted of offences under section 302/201, P. P. C. By the learned Additional Sessions Judge, Sialkot, by his judgment dated 29-3-1978 and has been sentenced to death and fine of Rs. 2,000 or in default of payment of fine to undergo one year further rigorous imprisonment. The sentence of death was however subject to confirmation by this Court. The appellant/convict has assailed his aforesaid conviction and sentence in appeal. This judgment therefore shall dispose of present Criminal Appeal No. 345/1978 as well as M. R. No. 107/1978 made to this Court under section 374, Cr. P. C.
2. The brief facts as disclosed in the first information report (Exh. P. H) which was recorded at the instance of Muhammad Irshad P. W. 15 son of the deceased are that Inayat Ullah deceased resident of Chak No. 370/TDA Tehsil Leiah, District Muzaffargarh used to deal in cattle business.
About two months earlier to the registration of F. I. R. (Exh. P. H) he alongwith one Noor Muhammad his son Iftikhar Ahmad purchased 4 bullocks from district Campbellpur and brought them in his own village. As he could not fetch any buyer of those bullocks in his own locality, the deceased and his son Muhammad Irshad P. W. 15 brought them to one Muhammad Sarwar, maternal uncle of the complainant, at Daska, district Sialkot where they tried to dispose of them unsuccessfully and at last on the third day those bullocks were brought by them in village Jassoran at the dera of Muhammad Boota appellant who was a cousin (mother's brother's son) of the deceased. After a stay for one night over there, the deceased went to Leiah to attend the Court of Resident Magistrate, on 29-4-1975, while his son Muhammad Irshad P. W. 15 alongwith bullocks remained there in village Jassoran. On 12-5-1975 the deceased came back from Leiah to the dera of the appellant in the noon where the appellant, his brother Mushtaq Ahmad, Asghar a cousin of the appellant and Muhammad Irshad P. W. 15 were already present. The 4 bullocks were also there at that moment. At about evening time, deceased asked the appellant for tea who after bringing tea leaves and sugar from his house and milking (the buffalo) started preparing tea at this dera. He asked his brother Mushtaq and Muhammad Irshad P. W. 15 to go home and arrange for meals.
Mushtaq and Muhammad Irshad left the dera and went to the house while Asghar left for his own house. However the deceased and the appellant remained there at the dera. After 2J/3 hours appellant himself reached his house alone and on the enquiry of Muhammad Irshad P. W. 15 the appellant disclosed that the deceased had gone some where to arrange for a truck. The deceased did not turn up till next morning. On an inquiry from him the appellant suggested to the complainant, that his father (deceased) might have gone to Daska. Thereupon the complainant went to Daska alongwith Mushtaq in search of his father but in vain. They returned to village Jassoran next day and found the bullocks too missing from the dera. On his inquiry regarding the whereabouts of the missing bullocks the appellant told the complainant that during his absence at night his father (deceased) had brought a truck and took the bullocks to Bahawalpur leaving a message for him to go back to his home (in District Muzaffargarh). Thereupon Muhammad Irshad complainant left village Jassoran for his Chak in District Muzaffargarh. After a month the complainant P. W. 15 heard about the arrival of Police in the Chak in search of his father. This aroused his suspicion. He gain went to village Jassoran where he heard some rumour about the presence of said bullocks and the appellant in the C. I. A. Staff Pasroor. He went to the C. I. A. Staff, Pasroor and found the missing bullocks and the appellant present there. He identified all the 4 bullocks i.e. P-I and Exh. P: 5 to Exh. P.7 there. The complainant asked the appellant that he had informed non that his father had gone to Bahawalpur alongwith the bullocks wherefrom then had he brought those bullocks and where had he made his father disappear. The deceased had Rs.500 coupled with an address chit in his purse. Muhammad Irshad P. W. 15 complainant expressed a grave suspicion that his father had either been secretly confined or murdered by the appellant in order to usurp R's. 500 and the bullocks. He prayed that his father be traced.
3. The statement of Muhammad Irshad P. W. 15 was recorded by Muhammad Nazir A. S. L, C. I. A.
Staff, Pasroor on 10-6-1975 at 1-45 p.m. The formal F.I.R. (Exh. P. H/1) under section 364, P. P. C. Was recorded at P. S. Phhalora by Adil Hussain Shah Head Constable (P. W. 5) on 10-6-1975 at 1-45 p.m.
4. On 31-5-1975 Muhammad Nazir A. S. I. (P. W. 20) took into his custody three bullocks Exh. P. 5 to Exh. P. 7 from the possession of the appellant under section 550, Cr. P. C. Vide memo. Exh. P. M. From a place near P.1 Deknala, Narowal road at a distance of about 4 miles from Pasroor. Recovery memo. Exh. P. M. Was attested by Muhammad Sadiq P. W. 9 and Muhammad Sharif Foot Constable (not produced). According to Muhammad Sadiq P. W. 9 the accused had gone away while according to Muhammad Nazir A. S. I. P. W. 20, the appellant was allowed to go as he wanted to produce proof of his ownership of the bullocks. The fact remains that he was not arrested at that moment i.e. On 31-5-1975, According to the prosecution the appellant did not turn up and Muhammad Nazir A.S.I. P. W. 20 kept on searching the appellant but he could not be found. Then Muhammad Nazir A. S. I. (P. W. 20) went to Chak No. 370/T. D. A. Tehsil Leiah, district Muzaffargarh in search of Inayat Ullah (deceased) who was not found there. Muhammad Nazir A. S. I. Came back to Pasroor and started searching for the appellant.
5. On 9-6-1975 the said A. S. I. (P. W. 20) arrested the appellant near bridge of Kotli Bawa Faqir Chand. On personal search, purse P. 20 containing an Address Chit Exh. P. P. And currency notes of the value of Rs. 145 were recovered from the appellant and were taken into possession vide memo.
Exh. P. R. Attested by Basharat Ali constable (P. W. 17), Rana Abdul Aziz (not produced).
6. On 10-6-1975 Muhammad Irshad complainant went to the C. I. A. Staff, Pasroor and identified the said bullocks and made the statement Exh. P. H. Which was read over to the complainant who signed it after admitting it correct and that statement was forwarded to the P. S. Phillaura for registration of a case. The accused at about evening time disclosed about having murdered Inayat Ullah and having buried his dead body in his field. Muhammad Nazir A. S. I. Then moved an application before the Ilaqa Magistrate for digging out the dead body of Inayat Ullah deceased who deputed Naib Tehsildar to do the needful. On 11-6-1975 the accused appellant pointed out the place of burial of the dead body and led to its recovery. The fard nishan dehi and recovery of dead body is Exh. P C while memo of identification of the dead body is Exh. P. D. Which were attested by Ghulam Rasool Lambardar P. W. 13 and Muhammad Hussain P. W.
14. An inquest report Exh. P. T. Was then prepared by Muhammad Nazir A. S. I. P. W. 20 and the dead body was presented to Dr. Abdur Rauf Suddle P. W. 1 who on the spot conducted post-mortem examination on it on 11-6-1975 at 4-30 p.m. Exh. P A is the carbon copy of the post--mortem examination and Exh. P A/1 is the diagram of the injuries. Exh. P. A/2 is doctor's opinion regarding the cause of death. According to Exh. P. A. The probable time between death and post-mortem was about one month. Exh. P. A. Speaks about the general condition and injuries as under :- "This the dead body of a male about 45 years old, dressed in green saloka (2) new badami coloured shirt (3) a niswa ri piece of dhoti. The foul smell coming out of the dead body. The eye-lids are absent. The skin over the forehead and right left scalp is absent. Hair and skin present on the occipital region. Penis and scrotum are absent. Skin over the both arms absent and bones are naked. Skin over the chest on left and right side absent and present on the front and abdomen. The skin over the feet is absent and bones are naked. This is the advanced stage of putrefaction. Skin over the back of body is present.
(i) A cut on the whole front and the upper part also extending to right, and left side neck-bone deep. This cut is bone deep."
7. Following matter was despatched to the Chemical Examiner according to Exh. PA :--
(i) Sealed bottle containing pieces of stomach.
(ii) Sealed bottle containing a small and large intestine.
(i.e) Sealed bottle containing pieces of spleen and kidney.
(iv) Sealed bottle containing pieces of liver.
(v) Sealed bottle containing saline used.
(vi) Sealed bottle containing earth from above the body.
(vii) Sealed bottle containing earth below the body.
8. The cause of death was withheld till the receipt of the report of Chemical Examiner, Lahore.
However on the receipt of Chemical Examiner's report, the Doctor gave his opinion regarding the cause of death vide Exh. P. A/2 according to which the cause of death was shock and haemorrhage as a result of injury No. 1 inflicted by sharp-edged weapon and was sufficient to cause death.
9. After the post-mortem examination the Doctor handed over the last worn blood-stained clothes, Kuria P. 8, Dhoti P. 9 and Salooka P. 10 of the deceased to said A. S. I. Who made them into parcel vide Memo. Exh. P.N. The accused while in custody led to the recovery of weapon of crime, a spear blade P. 11 from sugar-cane and tobacco field on 12-6-1975 which was made into a sealed parcel vide memo. Exh. P O. Attested by Ghulam Rasool Lambardar P. W. 13 and Muhammad Khan Lambardar. The sketch of the weapon of offence Exh. P. 11 is Exh. P. O/1 and the site plan of the place of recovery of Exh. P. 11 is Exh. P. U. On the same day Farzand Alt Patwari P. W. 4 inspected the spot and prepared a site plan Exh. P. E. And Its Diagram Exh. P. E/1 and also issued copy of khasra girdawari Exh, P. F., copy of register Haydaran Exh. P. G. On 17-6-1975 the accused was produced before Assistant Commissioner, Pasroor where his confessional statement Exh. P. Q. Was recorded.
On 23-6-1975 bullock Exh. P-I was recovered at the instance of the appellant from the haveli of Muhammad Tufail P. W. 7 in Village Ismail Awan and the same was taken into possession vide memo. Exh. P-1 attested by Ghulam Muhammad P. W.
6. The fard nishan dehi is Exh. P. J. Attested by the same witness. Exh. P. L. Is a fard nishon dehi showing the haveli of Malik Nazir Ahmad P. W. 12 where the appellant had sold three bullocks P. 5 to P.
7. On the same day Muhammad Nazir A. S. I. Took into possession register P. 2, receipt books P. 3 and P. 4 of the cattle- pound from Muhammad 7. Afar Ullah, Secretary Union Council, Kot Karam Bukhsh at the instance of the appellant vide Memo. Exh. P. K/2 attested by Malik Ghulam Muhammad P. W.
6. On 24-6-1975 the finger prints Exh. P. V. And the specimen signatures Exh. P. K/4 to P. K/7 of Muhammad Boota accused were obtained in the presence of the Magistrate for comparison with the thumb- impression Exh. P. 2/1 on the register Exh. P. 2 and the signatures Exh. P. K/3 on the receipt P. K. On 8- 7-1975 Ghulam Muhammad P. W. 18 identified the bullocks P-1 and P-5 to P-7 as those he sold to Inayat Ullah deceased. The memo of identification is Exh. P.
5. After the completion of investigation the challan was submitted in the Court of Sessions Judge who after the conclusion of the trial found the appellant guilty of culpable homicide amounting to murder of Inayat Ullah under section 302/201, P. P. C. And sentenced him to death and a fine of Rs. 2,000 or in default of payment of fine to undergo one year R, I., and half of the fine when recovered was ordered to be paid to the heirs of the deceased vide judgment dated 29-3-1978. The appellant has assailed his conviction before this Court.
10. There is no ocular testimony of the occurrence and the prosecution version wholly rests upon circumstantial evidence consisting of (i) the evidence of the appellant and the deceased having been last seen together, (ii) the evidence of motive (i.e) the evidence of judicial confession and (iv) the evidence of recoveries.
(I) The evidence of last seen Muhammad Irshad complainant P. W. 15 is the only witness who deposed that the deceased was last seen alive in the company of the appellant. The learned Additional Sessions Judge while relying upon the testimony of that witness coupled with the failure of the appellant to furnish an explanation under section 342, Cr. P. C. With regard to that allegation found it more than sufficient for the conviction of the appellant. He relied upon a decision given .By the Supreme Court in Allah Ditta v. The Crown (1969 P Cr. L J 1108), In that case the question was whether there was any evidence to the effect that the deceased was seen entering a jungle (bells) with the woman shortly before the time at which she presumably met her death. In that case prosecution produced the evidence of Fajja P. W, 13, Gaman P. W. 14, Sher Muhammad P. W. 15 and Hussain Bukhsh P. W. 16, who saw the couple entering into the jungle and about half-an-hour later, the appellant (accused) was seen by P. W. 13, P. W. 14 and P. W. 16 returning alone. Their testimony was believed by the Court beyond any doubt and therefore on the basis of that evidence regarding deceased last seen alive in the company of accused coupled with his failure to furnish an explanation for the disappearance of deceased lady (Mst, Sairan), the Supreme Court upheld the conviction.
We do respectfully concede that the evidence of last seen is no doubt a convincing circumstance for proving the case of circumstantial evidence. But in the instant case the evidence of last seen even if believed would not be a strong circumstance, so as to lead to the inference of the guilt of the appellant because it was day time when the deceased was last seen with the appellant at the dera. It is in the evidence of P. W. 15 that Barkat and Asghar cultivate the land at the same chah and Akbar, Asghar and Mehnd used to come there. According to the statement of the complainant (P. W. 15) Boota appellant and Mohnd used to sleep at the dera to guard their cattle. Thus it is clear from the evidence of the prosecution that certain others also used to come there and sleep there also and it was not a lonely and deserted place: Moreover it is not borne out from the record that the dera belonged to the appellant. Moreover it is clearly mentioned in F. I. R. Exh. P.
11. That one Mushtaq and Asghar were also there when the deceased was seen alive in the company of the appellant. P. W. 15 the complainant further mentioned this fact in his deposition. However there is nothing on the record to suggest that Mushtaq and Asghar both had been won over by the appellant. Rather it is very much in the F. I. R. Exh. P. H. As well as in the deposition of P. W. 15, the complainant, that the aforesaid Mushtaq had helped the complainant in the search of the deceased. The prosecution withheld their evidence deliberately and an adverse inference under section 114 of the Evidence Act may be drawn against the prosecution to the effect that had they been produced in the Court they would not have supported the version of the prosecution.
Therefore the only evidence in support of this allegation is that of Muhammad Irshad P. W. 15 who is, being the son of the deceased, very much interested in getting the appellant convicted. It is further abundantly clear from the judicial record that this witness, being an illiterate person stated on oath that he had written Address Chit Exh. P. P. It can safely be concluded that implicit reliance cannot be placed upon his evidence and every word uttered by him cannot be treated as a gospel truth.
Again the al legation, that the appellant had been putting of Muhammad Irshad P. W. 15 son of the deceased for one pretext or the other is further based upon he solitary statement of Muhammad Irshad. There is nothing else to corroborate him on this point and it is highly inconceivable that he would not ask the Appellant regarding the whereabouts of his missing father in the presence cat any other person especially when Asghar P. W. (not produced) was a real maternal cousin of his father and was resident of village Jassoran and according to the complainant was very much present at the dera when deceased came over there.
11. The appellant in his statement under section 342, Cr. P. C. Has specifically denied all the allegation of the prosecution except recovery of the dead body of the deceased and bring an evasive answer can be considered as an admission. The law laid down by the Supreme Court in 1969 P Cr. L J. 1108 in our opinion cannot be attracted to the facts of the present case. In recent judgment delivered in Naqib Ullah and another v. The State (PLD 1978 SC 21), their Lordships of the Supreme Court held that the evidence of the deceased having been last seen alive in the company of the accused was regarded as a weak type of circumstantial evidence to base the conviction on it. There fore we are not in agreement with the conclusion of the learned Additional Sessions Judge that this piece of circumstantial evidence in the light of the, above discussion will be sufficient to establish the guilt of the appellant.
(II) The evidence of recoveries
12. The learned Sessions Court held that all the recoveries in this case at the instance of. The appellant were proved and were sufficient to establish the guilt of the appellant.
13. AS stated above it was an unwitnessed occurrence and the prosecu--tion case solely rested upon circumstantial evidence. The following recoveries have been alleged from the appellant :-
(i) Recovery of bullocks P. 5 to P. 7 from the appellant by Muhammad Nazir A. S. I. P. W. 20 from near P.1 Deknala on the road 4 miles away from Pasroor on 31-5-1975.
(ii) Arrest of the appellant by Muhammad Nazir A. S. I. P. W. 20 from near canal Bridge kotly Bawa Faqir Chand on 9-6-1975 and recovery of purse P. 12 containing Address Chit Exh. P. P. And currency notes of the value of Rs. 145.
(i.e) Recovery of the dead body of the deceased on 11-6-1975 at the instance of the appellant.
(iv) Recovery of blood-stained spear blade P. 11 at the instance of the appellant on 12-6-1975.
Recovery of bullock P-I from the dera of Muhammad Tufail P. W. 7 at the instance of the appellant.
Execution of the receipt Exh. P. K. By the appellant. Sale of bullocks P. 5 to P. 7 by appellant. Entry in the cattle-pond register Exh. P. 2 connecting the appellant with the bullocks P. 5 and P. 7 belonging to the deceased.
14. Now taking all these pieces of evidence one by one it is discussed as under:-
(i) Recovery of bullocks etc. P. 5 to P. 7 on 31-5.1975:
15. The evidence of recovery of three bullocks from the possession of the appellant on 31-5-1975 apparently seems to be a total concoction made by the prosecution. The prosecution case is that three bullocks were recovered on 31-5-1975 and the fourth one was recovered from the dera of Muhammad Tufail P. W. 7 on 23-6-1975 but strangely enough all the four bullocks were present in C.
I. A. Staff on 10-6-1975 when the statement of Muhammad Irshad P. W. 15 complainant was recorded and the same was ultimately formed the basis of F. I. R. It is specifically mentioned in Exh.
P. H. (F. I. R.), the statement of Muhammad Irshad P. W. 15 in which he disclosed as under:- "Then I went to C. I. A. Staff, Pasroor where the bullocks and the accused were present. I identified the bullocks P-I and P. 5 to P. 7 there."
Hence according to F. I. R. As well as the deposition of P. W. 15 complainant all the bullocks were in the custody of C. I. A. Staff on10-6-1975. The Investigating Officer has shown the recovery of the 4th bullock (Exh. P. I) on 23-6-1975 from the dera of P. W. 7 which was in fact with him at C. I. A. Staff, Pasroor for about 13 days prior to that alleged recovery. This patent fact itself is quite: sufficient for us to hold such recoveries as ficticious which seem to have been planted by Muhammad Nazir Investigating Officer P. W. 20 for reasons best known to him.
Muhammad Nazir A. S. I. Has stated that he took the bullocks in possession under section 550, Cr. P.
C. Suspecting them to be stolen property. Section 550, Cr. P. C. Maybe quoted for ready reference as under:- "Section 550.-Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Such Police Officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer."
Muhammad Nazir A. S. I. Decidedly was not serving as an officer incharge of the Police Station at that time and there is no report avaiLahle on the record having been sent by that officer to the Officer Incharge of the concerned police station regarding the seizure of this property. Furthermore Muhammad Nazir A. S. I. In his cross-examination has admitted that be did not inform the Magistrate about taking into possession of the bullocks. Had he taken into possession the bullocks on 31-5- 1975 under section 550, Cr. P. C., he would have certainly not failed to send reports to the concerned S. H. O. And the Magistrate of the Area in compliance of a mandatory provision of law contained in section 523 of the Cr. P. C. Apart from this another circumstance which falsify the assertion of the alleged recovery of bullocks is the non-arrest of the appellant on 31-5-1975. Sec-- tion 54 of the Cr. P. C. Empowers a Police Officer to arrest without warrant any person in whose possession anything is found which is suspected to be stolen property. The appellant was not arrested at the time of alleged recovery of bullocks under section 550, Cr. P. C. So much so that even his person was not searched as this fact was admitted by A. S. I., P. W. 20 in his statement. The Investigating Officer (P. W. 20) has stated that he had raided the dera of the appellant one or two days after taking charge (which he took on 24-5-1975) to recover four bullocks and had in fact brought four buffaloes of appellant's father to C. I. A. Staff, Pasroor as a result of said raid. We found no reason for not causing the arrest of the appellant on the day when he recovered the same bullocks from the appellant for the recovery of which he had raided his dera about five days earlier.
(ii) Arrest of the appellant near Canal Bridge of Kotly Bawa Faqir Chand on 31-5-1975 containing the Address Chit Exh. P. P. And currency notes of the value of Rs. 145.
16. At the time of alleged arrest of the appellant, a purse P. 12 containing an Address Chit Exh. P. P.
Allegedly belonging to the deceased were recovered from his personal search on 9-6-1975. The statement of complainant Muhammad Irshad P. W. 15 was recorded by the C. I. A. Staff on 10-6- 1975 and on that day the aforesaid articles were not shown to him for identification by the Investigating Officer. Had these been there, these would have certainly been shown to the complainant like the bullocks for identification. Muhammad Irshad P. W. 15 in examination-in-chief has stated- "the Address Chit Exh. P. P. Is in my own handwriting and is the same which was being carried by my father in his purse."
"I left my village in the morning on the next day after the visit of the Police. I reached Jassoran at about 12 noon/1 p. m. And from there to C. I. A. Staff, Pasrur within about I J hour. My statement Exh.
P. H. Was recorded at about 1-45 p. m."
Statement Exh. P. H. Was recorded on 10-6-1975 and a day prior to that i.e. On 9-6-1975 Police from Pasroor, District Sialkot, had visited the village of P. W. 15 in Tehsil Leiah, District Muzaffargarh and it is also clear from the record that Muhammad Nazis A. S. I. P. W. 20 had gone to chak No. 370 T. D. A., Muzaffargarh, in search of the deceased. If on 9-6-1975 A. S. I. P. W. 20 was in District Muzaffargarh then how could he cause the, arrest of the appellant on the same day from the canal Bridge near Kodi Bawa Faqir Chand in District Sialkot. This further renders the prosecution case as worthless and ficticious and makes all the alleged aforesaid recoveries as planted ones.
(III) Recovery of Dead Body on 11-6-1975 The evidence regarding the recovery of the dead body on the pointing out of the appellant is quite consistent and convincing. Even the appellant himself while availing an opportunity provided to him under section 342, Cr. P. C. Did not specifically deny or explain but gave an evasive answer which clearly amounts to an admission on the part of the appellant therefore in view of this fact it is open to us to hold that the appellant was rightly found guilty of an offence under section 201, P. P.
C. By the learned Additional Sessions Judge.
(IV) Recovery of Blood-Stained Spear P. II This piece of evidence again apparently seems to be a complete concoction for the reasons that the injury found on the person of the deceased cannot be caused by a spear blade. This weapon of crime P. 11 was taken into possession vide memo. Exh. P. O. Exh. P. O. 1 is a sketch of this weapon which indicates that it is some sort of a "balam" which is meant for piercing into a body and cannot be ultilized to give a cut on the whole front and upper part extending to right and loft side neck- bone deep which according to the reports Exhs. P. A. And P. A. 1 was the cause of the death of the deceased. This injury can only be caused with a heavy sharp-edged weapon such as a hatchet with heavy blade, takwa, toka gandasa etc. Exh. P. 11 sketch of which is P. O. 1 can only cause a stab wound or a penetrating wound and cannot cut the whole neck of a person. The recovery memo Exh. P. O. Does not mention that weapon of crime P. 11 was stained with human blood. Muhammad Nazir A. S. I. P. W. 20 in cross-examination has stated:- "On 10-6-1975 the accused had also disclosed that the weapon of offence was buried in the sugar- cane field."
If this be true then why the recovery was not effected on 10-6-1975 or by latest on 11-6-1975 and that the Investigating Officer kept on waiting till the afternoon of 12-6-1975 when ho was very much there at the place of recovery on 11-6-1975 and 12-6-1975. Assuming without holding that the weapon of offence was recovered as suggested even then blood cannot remain on it for 31 long days especially when it retained buried in the hot months of May and June in a tobacco sugarcane irrigated field. Under such circumstances the blood would have certainly distintegrated. Reliance in this respect may be placed on a decision given in Muhammad Ilyas v. The State (PLD 1967 SC 443).
(V) Judicial Confession This judicial confession is legally inadmissible in evidence and the same cannot be utilized against the appellant. The learned Additional Sessions Judge rightly refused to rely upon this so-called judicial confession. However it appears that the Investigating Officer being not satisfied with the sufficiency of evidence wanted to procure more evidence against the appellant and this is perhaps the reason that be managed for Exh. P. Q. In violation of well settled principles of law regarding confessions.
(VI) Execution of Receipt Exh. P. K by the Appellant The evidence regarding the execution of receipt Exh. P. K. Is again discrepant. Only two witnesses namely Muhammad Tufail P. W. 7 Sultan Ahmad P. W. 11 have been produced. Muhammad Tufail P.
W. 7 stated:- "The revenue stamps were brought by Master Zafar from Guinke. Contrary to that, Sultan Ahmed P.
W. 11 stated paper of the receipt was brought from the village while the revenue stamps from Post Office Kot Karam Bukhsh by Muhammad Tufail P. W. 7."
Both these witnesses obviously belong to village Ismail Awan. None of attesting witnesses, namely, Zafar Ahmad and Muhammad Hussain have been produced. Further it is quite strange that P. W. 7 and P. W. 12 allegedly purchased the bullocks from the appellant on one and the same day. Both the alleged purchasers are living in the same village and have their dera close-to each other and do not bother to verify about the genuine ownership of -the bullocks sold to them.
The defence case is that receipt Exh.P.K. Was got signed from the appellant at the Police Station under coercion (answering to question No. 8) and this plea finds support from the admission of Muhammad Tufail P. W. 7 that he, his father and Chowkidar were summoned to C. I. A. Staff Pasrur and they went there.
(VIII) Sale of bullocks P. S to P. 7 by Appellant to Nazir Ahmad P. W. 12 The prosecution has brought the solitary statement of Muhammad Nazir P. W. 12 in support of this allegation. His statement is of no credence for the reasons that before Police his case was that he purchased three bullacks for Rs. 8,000 on credit but at the trial he took up a different position by stating that he purchased the bullocks for Rs. 6,000 having paid Rs. 280 in advance as earnest money. It is further very strange that other purchaser P. W. 7 got a receipt executed while this witness did not get any receipt. The evidence of this witness does not inspire any confidence. A prudent person would not release the cattle which he has purchased for Rs. 8000 merely on suspicion of being a stolen property. Had there been any suspicion about the bullocks being a stolen property this witness, would have in all probability reported the matter to the police or at least impounded the bullocks himself in the cattle-pond or in the alternative send the bullocks to the person from whom he had purchased the same.
Entry in the cattle-pond register Exh. P. 2 connecting the appellant that the bullocks P. 5 to P. 7 belong to the deceased.
17. This piece of circumstantial evidence does not seem to be of any credence and worth. The prosecution did not produce Khurshid son of Taj who allegedly impounded the cattle. Even he was not cited as a witness. Muhammad Nasrullah who allegedly signed register P. 2 as witness has also not been cited as witness by the prosecution. According to the prosecution Ch. Rafiq Ahmad and Ghulam Muhammad P. W. 6 were the persons who signed and thumb-marked the register at the time of the release of bullocks on 27-5-1975 in proof of the fact that the appellant was the owner of the bullocks. Rafiq Ahmad has not been produced and Ghulam Muhammad P. W. 6 has not uttered a single word about this release made in favour of the appellant by the Muharrir pond in his presence.
18. The defence case is that the thumb-impression of the appellant was got forcibly by the Investigating Officer Muhammad Nazir A. S. I. P. W.
20. This allegation in our opinion has some force.
In view of the conduct shown by the Investigating Officer during the course of investigation, we can safely conclude that the stand taken by the defence seems nearer to the truth.
19. It therefore, appears from the above detailed examination of the various circumstances, that none of them can be considered as incompatible with the innocence of the appellant. The well- defined rule regarding the sufficiency of circumstantial evidence is, that the facts proved must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis then that of his guilt. Where a charge of murder is based absolutely on the circumstantial evidence, that evidence must pointedly prove the guilt of the accused and should definitely exclude the possibility of the murder having been committed by any other person.
Circumstances of strong suspicion unsupported by any conclusive evidence are not therefore sufficient to sustain a conviction even in the absence of their explanation put forthwith by an accused. The circumstantial evidence in this context means a combination of facts creating a net- work through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt. In Siraj v. The Crown (PLD 1956 FC 123) the same principle was affirmed as under:- "In dealing with the question of sufficiency of circumstantial evidence to sustain a conviction, it has to be borne in mind that if, on the facts proved, no hypothesis consistent with the innocence of the appellant can be suggested, the conviction must be upheld. If, however, such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case will have to be treated as one of no evidence and the conviction and the sentence will in that case have to be quashed."
"A, who was charged under section 302 knew where the bodies of the murdered persons were. He also knew that murder had been committed. The jewellery removed by him from the dead body was subsequently produced and identified. Moreover he confessed his guilt to the lambardar of the village.
Held, that it was not safe to rely upon the confession made to the lambardar and therefore he could not be convicted under section 302. But the evidence was sufficient to convict him under section 201.
20. In Bulaqi v. Emperor (AIR 1928 Lah. 476) it was held as under:-- "B and S were charged under section 302, P. P. C., for the murder of R, who, according to the village rumour, was in intrigue with G's were, M, sister to B. S. Was the brother of G. A. Tracker followed the tracks with directions from villagers to the Ahata of S. And G. Shoes of R were recovered at the instance of B. The place where in the body was later found buried. Dead body of R was found at the instance of the confession made by S. Held, that the evidence was not sufficient to establish charge under section 302 but was ample to establish an offence under section 201, Penal Code."
21. In Nazir v. State (PLD 1960 Lah. 189) the Division Bench of West Pakistan High Court, Lahore concluded as under:- "It now remains to consider the circumstantial evidence mentioned in items (c) to (f) above.
Chiragh and Ramzan P. Ws. Proved the recovery of the deceased's head from the watercourse at the instance of the appellant. A. S. I. Muhammad Afzal proved the recovery of the blood-stained sickle and the blood-stained garments of the appellant. As already stated, these were found to be stained with human blood. We have considered items (c) to (f) in the light of well established principle that in order to justify an inference of guilt, the circumstantial evidence must be incompatible with the innocence of the accused. In our opinion the circumstantial evidence (c) to
(f) above does not establish the appellant's guilt under section 302, P. P. C. This evidence, however adequately establish as that the appellant committed an offence under section 201 of the P. P. C.
We, therefore, alter his conviction from 302 to one under section 201, P. P. C. And sentence him to seven year's rigorous imprisonment."
23. For reasons detailed above, we partly accept the appeal, set aside the conviction and sentence of the appellant under section 302, P. P. C. We however maintain that of an offence under section 201, P. P. C, and sentence him to 5 years rigorous imprisonment. As the death sentence has been quashed, no question of confirmation of such sentence arises. M. R. No. 107 of 1978 is answered accordingly.