ABDUL SHARURUL SALAM, J.-Appellant Mashooq Ahmad along with his brother Haji was tried under section 302/34, P. P. C. For the murder of Saeed Ahmad on 9-11-1977 at about Fajar prayer time within the area of Bhaini Chah Qasirwala situate in village Qadirpur Rawan, Tehsil and District Multan, by the learned Additional Sessions Judge, Multan who on 31-1-1979 acquitted the latter, i.e. Haji but convicted the appellant Mashooq Ahmad and sentenced him to death. He referred the case under section 374, Cr. P. C. For confirmation of the sentence. It is M. R. No. 79/79. The convict also filed Criminal Appeal No. 147/79. Both these shall be disposed of by this order.
2. On 12-11-197.7, Bahadur made a statement Exh. P. B. To the effect that he alon8with big family lived in Chah Bokhari. His son Saeed Ahmad for the last six/seven years was an employee of Haji Akbar Khan at Chah Qaiserwala. On 9-11-1977, at sunrise time, Khadim Hussain resident of Chah Qaiserwala came to his house and informed him that during the night Mashooq Ahmad and Haji had a quarrel with Sated Ahmad. Mashooq hit a brick on the head of Saeed who ran back. He had come to get the keys of the dera of Haji Akbar Khan. In reply, he (Bahadur) said that he (Mashooq Ahmad) had not come there. Hearing about the quarrel, he himself along with Khadim Hussain came to Chah Qaiserwala and looked for his son but finding nothing set off to his relations in Kahirwala, Multan and Muzaffargarh. There too, he did not find anything. Disappointed, at about 2- 30 p.m. Today (12-11-1977) when he was with Haji Muhammad Akbar, brother of Hafiz Imam -An at Chah Qaiserwala, Ghulam Muhammad came along and said that a dead body was lying under a mango tree in the maize crop of Haji Muhammad Akbar Khan. Hearing this all four of them reached the spot and identified the dead body of his son lying under the mango tree in the maize crop who had been killed by Mashooq Ahmad and his brother Haji. The cause of enmity is that 8/9 days earlier, his son had seen Mst. Waziran, sister of Mashooq, in a compromising position with Khuda Bakhsh Mali, a servant of Haji Akbar Khan. About this, his son Saeed Ahmad informed Malik Asghar, brother of Haji Muhammad Akbar, and the news became public. Malik Asghar removed Khuda Bakhsh Mali from service. Consequently, Mashooq felt aggrieved of this matter and for this he along with his brother Haji had murdered his son. He was going towards the Police Station to report that he had met him (Muhammad Amir Khan, S. I., Police Station Sadar Multan). The latter recording the statement, sent it to the Police Station for registration of a case and the formal F. I. R. Exh. P. B. 1, was recorded by Shameem. Hussain, A. S. I., P. W. ? At 5 p.m. On 12-11-1977. The S. I. Muhammad Amir Khan P. W. 12 went to the spot, found the dead body of Sated Ahmad lying in the maize field under the shade of a mango tree and prepared injury statement Exh. P. J. And inquest report Exh. P. K. The dead body was sent for the post-mortem. He collected blood-stained earth from the spot vide memo. Exh. P. E. And made it into a sealed parcel. He, then; recorded the statement of the P. Ws. Haji Muhammad Akbar produced both the accused before him on 13-11-1977 and Mashooq Ahmad accused-appellant is stated to have, while in police custody, led to his residential room and got recovered brickbat P. 6 which was taken into possession vide Memo. Exh. P. H.
3. Dr. Muhammad Arif Saeed P. W. 11 conducted the post-mortem examination of the deceased Sated Ahmad on 13-11-1977 at 11 a.m. And found the following two injuries
(1) Swelling present on right side of head size 5' x 4'.
(2) Swelling on the left side of neck size 2 -- ' x 2'.
According to .Him, the deceased died of injuries to vital organ .i.e. Brain caused by injury No. 1. It was ante-mortem, dangerous to life, caused by blunt weapon and sufficient to cause death in the natural course of life. Injury No. 2 was simple, caused by blunt weapon. The time between injury and death was within 12 hours and between death and post-mortem 3 to 5 days.
4. In due course of time, the appellant and his brother (since acquitted) were put to trial and they pleaded not guilty.
5. At the trial Zafar Ahmad appeared as P. W. 7 who deposed about taking into possession of the blood-stained earth from the maize field where the dead body of Saeed Ahmad was lying vide memo. Exh. P. E. And about the recovery of brickbat P. 6 on the pointing out of the accused in the police custody vide memo: Exh. P. H. He also deposed about the motive that about 7/8 days earlier to the occurrence, the deceased had soon Mst. Waziran sister of Masbooq Ahmad and Haji accused in objectionable condition with Khuda Bakhsh Mali. He had reported the matter to him and to his colleagues. The accused got offended. He (the witness) sacked Khuda Bakhah Mali from service. "The accused, however, developed a sense of hatred and enmity towards the deceased as the latter bad made it know to everybody that the sister of the accused was carrying on with the said Mali".
Bahadur P. W. 8, father of the deceased who had made the statement Exh. P. B. Which formed the basis of F. I. R. Exh. P. B/1, reiterated the contents thereof except that the name of Malik Asghar brother of Ho Muhammad Akbar who was stated to have sacked Khuda Bakhsh Mali, was substituted by Malik War. In cross-examination, he deposed that "Khuda Bakhsh Mali was about 40 years of age at the time when he was removed from his service". He also said that, "in my presence Haji Akbar did not tell anything to the 'thanedar' about Mashooq accused".
Haji Muhammad Akbar appeared as P. W. 9 and deposed that on 12-11-1977 at about 2-30 p.m., , Ghulam Muhammad P. W. Informed that he had observed the dead body of Saeed deceased in the maize field under the shade of a mango tree. Bahadur P. W. Was also with him .3t that time. They then went to the spot where the dead body was lying. Bahadur P. W. Identified the dead body of his son and went to the police station for lodging the report of murder and he himself left for his `dera'.
He further stated that "When I reached my 'bhaini', Mashooq accused met me and told me that he and his brother Haji had belaboured the deceased at about `Fajar' prayer time on 9-11-1977 because the deceased had defamed their family by disclosing the illicit relations of their sister with Khuda Bakhsh Mali. He, further, confessed that he had given a brickbat blow to the deceased hitting on his bead whereupon the deceased took to his heels in order to save his life. Mashooq accused further told him that he and his companion Haji followed the deceased and found him lying injured in a field. Mashooq accused further told him that he throttled the deceased while his co-accused Haji caught hold of Saeed. The accused persons then removed the dead body in the maize field and put it under the shade of a mango tree which was not visible from outside.
Mashooq accused also told me that when they were belabouring Saved deceased at my Bhaini in a room, Khadim Hussain and Nazar Muhammad P. Ws. Had also reached there and Mashooq accused bad caused a brickbat blow to the deceased in their presence. The P. Ws. Intervened and separated the parties. Masbooq accused confessed before me that be had committed a blunder and pleaded mercy. Mashooq accused confessed before me at about 2-30 p.m. On 12-11-1977. I produced the accused persons before the police at about 4 p.m. On the following day".
Nazar Muhammad appeared as P. W. 10 and deposed that "at about !Ajar' prayer time, "I was sleeping in front of my barn of sheep and lambs. All of a sudden, I was attracted by an alarm emanating from the room of Mashooq accused from the western side situate at the bhaini of Chah Qaiserwala belonging to Haji Akbar Khan P. W. 1 and Khadirn Hussain P. W. Rushed to the spot and saw both the accused persons causing blows to the deceased. We tried to intervene whereupon Mashooq accused picked up a brickbat and gave a blow with it hitting on the head of Sated deceased, whereupon he took to his heels and ran outside the haveli. We then returned to our barn to attend our daily duties".
In cross-examination, he said that "I and Khadim Hussain P. W. Told all about the occurrence to Haji Muhammad Akbar at about sunrise time when he visited his haveli on 9-11-1977".
Muhammad Amir Khan S. I., Investigating Officer, appeared as P. W. 12 and deposed that while he was in Chowk Qadirpur Rawan Town, he was met by Bahadur complainant at 4-15 p.m. (12-11-1977) who gave his statement which he recorded as Exh. P. B. And after getting that thumb marked sent the same to the police station for formal registration of the case. Thereafter, he left for the spot. On reaching there, he found the dead body of Saeed Ahmad lying in the maize field under the shade of a mango tree. He prepared the injury statement Exh. P.
7. And inquest report P. K. He recorded the statements of the P. Ws. On 13.11-1977, Haji Muhammad Akbar produced both the accused persons before him. Mashooq accused while in police custody, led to his residential room , and got recovered brickbat P. 6 from there, which he took into possession vide memo. Exh. P. H. In cross-- examination he stated that 'Haji Akbar Khan also reached the place where the dead body was lying within 4 or 5 minutes of my arrival. . . Haji Muhammad Akbar promised to produce the accused person before me. When I prepared the inquest report, I had no knowledge about the weapon used in the commission of the murder of Saeed and for that reason I did not specifically mention brickbat in column No. 12 of the said report. Similarly, I had no knowledge about the extra judicial confession of Mashooq before Haji Akbar Khan. It is correct that Haji Muhammad Akbar attested the inquest report".
6. In his statement under section 3.42, Cr. P. C. To the question: "It is a fact that Mst. Waziran your sister was carrying on with Khuda Bakhsh Mali, servant of Haji Muhammad Akbar Khan and Saeed Ahmad had seen them in an objectionable positron 7/8 days prior to the occurrence and reported the matter to Zafar Abmad P. W. And others over which you got offended" the appellant Mashooq replied that It is incorrect. My sister Mst. Waziran is aged about 65 years and was like a mother to Khuda Bakhsh Mali; "to the question as to whether he had made earlier judicial confession before Haji Muhammad Akbar, he replied, "No"; to the question as to why this case against him, the appellant stated that "I have been falsely implicated in this case. 1 have all, along remained present in the bhaini in my house or working at the fields of Haji Muhammad Akbar. On 11-11-77, there was afoul smell in the entire vicinity of Chah Qasirwala and a dead body was recovered. Police arrived on 12-11-77. The Investigating Officer unjustifiably arrested me and my brother falsely roped us in this case."
The acquitted accused Haji denied the allegations against him in his statement under section 342, Cr. P. C. And as regards the question: why this case against him, he replied that "I have been falsely implicated in this case. I am a brother of Mashooq co-accused."
7. Learned trial Court relying on the evidence of motive, eye-witness Nazar Mubammad P. W. 10, extra-judicial confession before Haji Muhammad Akbar, P. W. 9, and the medical evidence, found the appellant Mashooq Ahmad guilty and sentenced him as aforesaid. He, however, acquitted Haji, the co-accused brother of the appellant.
8. Learned counsel appearing for the appellant Mashooq Ahmad has submitted that it was a case of blind murder. Nobody saw as to how, when, and who murdered the deceased Saeed Ahmad, and when the dead body lying in the field of Haji Akbar Khan, P. W. 9 started emitting foul smell the matter came to the notice and the police arrived at the spot at 10 a. m. On 12-11-1977, as admitted by Ghulam Hussain Shah Constable, P. W.
1. Even until completion of initial investigation by preparation of inquest report Exh. P. K. By 5 p. m., no body was there as an eye-witness nor any extra-judicial confession. These were subsequently cooked up and are unreliable pieces of evidence. The motive alleged is preposterous as appellant's sister was aged 65 years. The whole case, it is submitted, is false and has been put up toward off involvement of the person in whose `bhaini' the occurrence had taken place and from whose land the dead body was recovered after three days. He put up his employee as an eye-witness and himself became a witness of extra judicial confession. The learned counsel submits that course of justice has been perverted.
9. Learned counsel for the State and the complainant have submitted that Nazar Muhammad P. W.
10 was a natural eye-witness of the account belabouring and hitting brickbat on the head of Saeed Ahmad as he resided in front of the house of the accused where . He (the deceased) had come try ask the accused to get up to feed the cattle and the mere fact that his name was not mentioned in the statement of Bahadur Exh. P. B. Which formed the basis of F. I. R. Is not fatal because the complainant was not the eye--witness and was reporting the matter about which he had no direct knowledge. Deponent of extra-judicial confession is a pious man. .The motive, recovery and medical evidence fully prove the case.
10. Now, it has to be noticed that Saeed Ahmad was injured at `fajar' prayer time on 9-11-1977 and died within 12 hours, per medical evidence of Dr. Muhammad Arif Saeed P. W. 11, and the F. I. R. Was lodged on 12-11-77 about 4.15 p. In. Per statement of the Investigating Officer, Muhammad Amir Khan P. W.
12. During this period of 4 days, the deceased must not have been seen around.
According to Nazar Muhammad P. W. 10, he had seen the occurrence at `fajar' time on 9-11-1.977 and had informed his employer Haji Muhammad Akbar P. W. 9 at sunrise time. Babadur, father of Saeed Ahmad P. W. 8, was also informed about the occurrence the same day and he came to look for his son. According to him, finding no clue of his son, he went away in search of his son and came back disappointed to the place of occurrence on 12-11-77. Then, he set off to lodge a report which was recorded at about 4.15 p. m. On 12-11-77. If these be the facts, it would generally be known that Nazar Muhammad P. W. 10 had seen the occurrence and the father of the deceased, Bahadur P. W. 8 would come to know thereof, and mention that in his statement Exh. P B before the Police. Haji Muhammad Akbar P. W. 9 appeared before the Investigating Officer, Muhammad Amir Khan P. W. 12, 4 or 5 minutes of his arrival. He, too, does not appear to have mentioned any eye- witness of the occurrence. Otherwise, that Investigating Officer would have mentioned the name in the inquest report Exh. P. K. Prepared at 5 p. m. On 12-11-77, especially when no mention had been made about the eye-witness in the statement Exh. P. B., Omission of the name of the solitary eye- witness, after 3 days of the occurrence, in the statement Exh. P. B. Lodged before the police and in the inquest report Exh. P. K. Prepared by the Investigating Officer on the spot, is significant. Then, the dead body is recovered after a period of three days, from a distance of about 246 yards from the place of occurrence. If the facts be as stated that Nazar Muhammad P.. W. 10 had seen the occurrence and informed the common employer and Bahadur, father of the deceased too had been informed and come to the place of occurrence, then, it is obvious that ;catch would have been made and if it had been made, the body would have been found as it was lying not too far away. From the place of occurrence. The evidence that it was found by the Investigating Officer Muhammad Amir Khan P. W. 12 "lying in the maize field under the shade of a mango tree", does not mean that it was untraceable. It appears that Nazar Muhammad, P. W. 10 had not seen the occurrence nor spoken about it to anybody including Haji Muhammad Akbar P. W.
9. That is why, his name does not appear in the statement Exh. P. B. And inquest report Exh. P. K. Prepared on 12-11- 1977. It was thereafter that he is put up as an eye-witness. To give it support, extra judicial confession is attributed to have been made by the appellant to Haji Muhammad Akbar P. W. 9.
Appellant has denied having made any such confession. Haji Muhammad Akbar P. W. 9 stated that when he reached his `bhaini' the appellant met him and confessed before him at about 2-30 p. m.
On 12-11-77." The Investigating Officer Muhammad Amir Khan P. W. 12 after recording statement Exh.
P. B. About 4.15 p. m. Reached the spot. Haji Muhammad Akbar P. W. 9 appeared before him after 4/5 minutes of his arrival. The Officer prepared inquest report Exh. P. K. It was attested by Haji Muhammad Akbar P. W.
9. The Investigating Officer Muhammad Amir Khan P. W. 12 has stated at "I had no knowledge about the extra-judicial confession of Mashooq accused before Haji Muhammad Akbar P. W." Now, if extra--judicial confession had been made to Haji Muhammad Akbar at about 2-30 p. m. As he says, be would have mentioned that to the Investigating Officer and the latter would have mentioned that fact in the inquest report Exh. P. K. Which he prepared after 4.15 p. m. Especially when no eye-witness had been mentioned in the statement Exh. P. B.
Forming basis of F. I. R. Exh. P.B./l. Extra judicial confession, when repudiated to have ever been, made, is a weak piece of evidence. This is axiomatic. The learned counsel for the complainant contended that it stands corroborated by recovery of brickbat Exh. P.6, medical and motive evidence and, therefore, can be relied upon. The law on the point has succinctly been put by the House of Lords in Director of Public Prosecution v. Nester (1972) 3 A E it 1056that "essence of corroborative evidence is that one credit-worthy witness confirms what another credit-worthy witness has said" and "the purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and .Credible; and corroborative evidence will only fill its role if it itself is completely credible evidence". The brickbat (not blood--stained either) and medical evidence cannot connect the appellant with the crime. About motive a solitary witness Zafar Ahmad P. W. 7, has said that "about 7/8 days prior to the occurrence, the deceased had seen Mst. Wazimn, sister of Mashooq and Haji, accused persons in au objectionable condition with Khuda Bakhsh Mali. He reported the matter to me and his colleagues. The accused persons got offended. I bad sacked Khuda Bakhsh Mali from my service for the said occurrence. The accused persons, however, developed a sense of hatred and enmity towards the deceased as be had made it known to every body that the sister of the accused was carrying on with the said Mali." Now, if the sister of the accused persons was seen with the Mali, they would be annoyed with the Mali, rather than the person who saw and said so. The Mali is said to be 40 years of age, by the father of the deceased Bahadur P. W.
8. In his statement under section 342, Cr. P. C. The appellant in answer to the question on the point, stated :bat, "My sister Mst. Waziran, is aged about 65 years, and was like a mother to Khuda Bakhsh Mali". Moreover, motive was mentioned in the F.
1. R. It could easily be incorporated in the extrajudicial confession. Its mention therein would not corroborate the authenticity of the extra- -judicial confession. Muhammad Akbar P. W. 9 who deposes about the confession, it must be noted, is the person in whose land the dead body was found after three days of the death.
According to prosecution, he was apprised of the occurrence in the morning of the incident. He may be a pious person, as the counsel for the complainant put it, having performed Umra, but the fact would not mean that a weak piece of evidence i. e. Extra--judicial confession which is denied to have been made by the maker, deposed to by a solitary witness, can lead a man to gallows. The contention of the learned counsel for the complainant that extra judicial confession coupled with the testimony of an eye-witness is sufficient to warrant conviction loses sight of the fact that in the circumstances of the case, the eye-witness is an employee of the person deposing about the extra judicial confession and the eye-witness nor the fact of extra-judicial confession, was ever mentioned up to the completion of the initial investigation. Therefore, it is not possible to hold that doubtful evidence added with other doubtful evidence would lead to positive proof. It may rather become doubly doubtful.
In view of the entire evidence on record and after giving anxious consideration to it, we are of the view that the case against the appellant has not been proved on the record. Therefore, his appeal has to be accepted. He is acquitted of the charge. He shall be set free if not wanted in any other case. Sentence of death is not confirmed. The two above titled matters are thus disposed of: