1. DORAB PATEL, J.-Mst. Bivi, the wife of the appellant, was killed by lathi blows in the appellant's house on the night between 28th and the 29th of June, 1969. The appellant was tried for this murder and as no eye-witness was examined to prove the occurrence, the prosecution relied solely on circumstantial evidence and on the appellant's extra judicial confession to Mst. Jallan, his mother- in-law, on the night of the occurrence. The Sessions Court held that the evidence thus produced was sufficient to prove the appellant's guilt for the murder, but by its judgment dated 10-11-1970, whilst convicted him for the murder, it gave him the benefit of the lesser sentence which then was transportation for life.
2. The appellant challenged his conviction in an appeal in the Lahore High Court which was dismissed by a learned Judge of the High Court on 23-10-1973. However, although the learned Judge upheld the appellant's conviction, lie had rejected Mst. Jallan's evidence about the appellant's extra judicial confession to her. Therefore, leave was given to examine the question whether the appellant's guilt had been proved. The prosecution has proved beyond doubt that Mst.
3. Bivi had been murdered in the appellant's house, but the appellant has not given any explanation of his whereabouts on the fateful night. The circumstantial evidence and the extra-Judicial confession lave, therefore, to be examined in this background. And, taking first the extra judicial confession, Mst. Jallan said :- "One and a quarter year ago, Muhammad Yar accused had come to my dera at about midnight.
4. He told me that he had killed Mst. Bivi deceased in his house, and I should go to take care of the dead body. Fateh Khan the brother of my husband was sleeping nearer than my husband Mohammad Hayat and therefore, I got Fateh Khan awoke. I told Fateh Khan that ?l1st. Bivi had been murdered by Mohammad Yar."
5. This evidence is fully corroborated by Fateh Khan's evidence. And, Mr. Bilal who took us through the evidence relied on Mst. Japan's evidence for the purpose of suggesting that the deceased had been murdered not by the appellant, but by Dosa, the son of Mst. Jallan's brother, because Dosa had been betrothed to the deceased, but had subsequently been married off by her father Mohammad Hayat to the appellant. Further, as submitted by Mr. Bilal, Mst. Japan. Also candidly stated that "In summer season male members of our families sleep at our behks." Clearly, therefore, the witness was a witness of truth and as her evidence of the extra-Judicial confession is fully supported by her brother's evidence, we were surprised that this evidence was rejected by the High Court. Now, the only ground given the learned Judge for rejecting the evidence of the witness was that she did not first inform her father, Mohammad Hayat, about the extra-judicial confession.
6. It is true that the witness could have informed her father first about the extra judicial confession, but with all respect to the learned Judge, this was no ground for rejecting her evidence, the more so, as she has given evidence truthfully and she was not cross-examined about the appellant' extra-judicial confession to her. We, therefore, see no reasons to reject this piece of evidence which is crucial to the prosecution case, because the on other person present is the appellant's house at the time of the murder was the brother of the deceased, who was a child and was too young to give evidence.
7. We now turn to the evidence of Sultan and of Zaman and as the learned judge has placed great reliance on their evidence. Mr. Bilal submitted that Sultan and Zaman were the witcesses of the recoveries, but that Sultan bad not supported the prosecution case. As Sultan turned hostile, there can be no reason whatever for rejecting that part of his statement which implicates the appellant.
8. And, he said in his examination-in-chief :-- "One year and 3/4 months ago, I was returning from the dera of my maternal uncle some time after mid-might. When I passed near the house of the accused. I beard the sound of a lathi blow. I called into the house of the accused. I heard the voice of Muhammad Yar accused who said from his house that it .Was he himself and nobody else."
9. As it is clear from the medical evidence that the deceased was killed by lathi blows, this evidence by Sultan lends very strong support to the prosecution case.
10. We now turn to the evidence of the recoveries and according to the prosecution the blood-stained lathi (which was proved to be stained with human blood) was produced by the appellant before Falak Sher, S. I., and the recovery was witnessed by Sultan and Zaman. Similarly, the recovery of the blood-stained clothes of the appellant was witnessed by these two witnesses. Mr. Bilal wanted us to reject this evidence, because Sultan turned hostile. But, although Sultan turned hostile, Zaman fully supported the prosecution case. Therefore, in view of his evidence and that of Falak Sher, S. I.
11. Both the Courts below have held that the prosecution had proved the recoveries and we see no error whatever in this concurrent finding of the two Courts.
12. Mr. Bilal was conscious of the fact that Sultan's evidence coupled with the appellant's failure even to state that he was not in his house at the time of the occurrence was fatal to his case, therefore, he referred us to the evidence of Mohammad Hayat, of Mst. Jallan and of Fateh Khan in order to prove that the appellant was in his dera at the time of the occurrence. But, these witnesses have merely stated that it was customary for men to be in their dera in the month of June when the occurrence took place. They have not stated that to their knowledge the appellant was not in his house at the relevant time and, on the other hand, Sultan's evidence is sufficient to prove that he was in the house at the tune of the occurrence.
13. Mr. Bilal then referred us to other discrepancies in the evidence of the prosecution witnesses, as they are of a very minor nature in the circumstances discussed, we are satisfied that the conviction