MUHAMMAD ASLAM MIAN, J.----In a trial conducted by Ch. Abdul Majid, Session Judge, Bahawalpur, appellants Muhammad Aslam alias Asloo and his father Ahmad son of Abdullah, were found guilty of committing the murder of Allah Ditta deceased in furtherance of their common intention. He sentenced them to imprisonment for life and a fine of Rs. 2,000 each under section 302; 34, P. P. C. Or in default of payment of fine, further three months' R. I. They were also find Rs.
2,000 each to be paid to the heirs of the deceased as compensation and in default thereof to undergo further three months' R. I. Each.
2. Both the appellants have filed the present appeal against their conviction and sentences.
Ghulam Rasul complainant has also moved a revision petition (Cr. Rev. 107/80(BWP) for the enhancement of the sentence of the appellants to that of capital punishment. This revision was admitted and a notice was issued to the appellants to show cause why their sentence should not be, enhanced to death. This judgment therefore, will dispose of the appeal as well as the revision petition together.
3. The facts briefly are that Ghulam Rasul complainant (P. W. 10) lodged a report at Police Station Dera Nawab on 6-12-1979 at 6-30 p. m. Stating that be was Lambardar of Chak No. 129/D.N.B, Tehsil Ahmadpur East, District Bahawalpur. Two days earlier i.e. On 4-12-1979 Rana Asghar Ali Patwari (P.
W. 2) came over to his Chak in connection with some official duty and stayed at the Dera of Rana Ataullah Patwari. On the night between 4/5-12-1979, Allah Ditta deceased, the cousin (Phuphair) of the complainant had also come there to see the Patwari after evening. Allah Ditta deceased had a taperecord with him which he had been playing but did not return to his house, till 8/9 p. m. The next day (5-12-1979). The complainant became apprehensive then be and other P. Ws. Started searching the deceased here and there but the deceased could not be found out. Subsequently on 6-12-1979 he was told by Ashiq (given up) and Zulfiqar (P. W. 16) that on the night of occurrence they were also present at the Dera of Rana Ataullah Patwati and that they had seen the deceased going up to the Beri tree with the tape-record, thereupon Ghulam Rasul complainant, Shaukat Hayat (P. W. 8), Asghar Ali (P. W. 9), Irshad Ahmad (P. W. 12), Muhammad Ayyub and Muhammad Ishaq (given up) went up to the Beri tree where they found the foot tracks of hava Chappal of the deceased and another person which led them to the Dera of Aslam alias Asloo appellant. On an inquiry Aslam appellant showed his ignorance as to the whereabouts of the deceased. They then followed the foot tracks near the Dera of Aslam appellant up to a khal where they found some drops of blood and also foot tracks of two persons and a she-donkey. The P. Ws. Again went to the Dera of Aslam appellant and apprised him of the situation. Aslam appellant being worried then made an extra judicial confession before the witnesses that he had brought Allah Ditta from the Dera of Rana Attaullah Patwari near from the Beri tree; he alongwith Ramzan killed the deceased with kassis and as to the throwing of dead body in the Khutri minor after the same had been carried on a she-donkey. It was also stated by the appellant that the deceased had the intention to commit sodomy upon him whereas Ramzan had a grudge against the deceased since the latter wanted to get the land vacated by the former who was in possession over which they had quarrelled. He further stated that Allah Ditta deceased had come to his Dera on his invitation for committing sodomy upon him (the appellant). Aslam appellant showed the witnesses the place of murder and then led them to the recovery of the dead body.
3. Manzoor Shah S. I. (P. W. 19) conducted investigation in the case. He got recovered the dead body of the deceased and arrested Aslam alias Asloo appellant who was present there with the witnesses. After having prepared injury statement Exh. P. S. And inquest report Exh. P. T. He despatched the dead body to the mortuary for post-mortem examination. On the pointing out of appellant Aslam the Investigating Officer took into possession some blood-stained earth from his Dera. Aslam accused then led to the recovery of blood-stained kassi P. 3 which was taken into possession vide memo. Exh. P. G. At the instance of Aslam appellant, he recovered Chappal of the deceased P. 4/1-2, blood-stained earth from the place where the deceased's blood had been concealed, blood-stained cot P. 5, drops of blood from near the Khal situated at a distance of l-- acres from the Dera of the appellant and she-donkey used in carrying the dead body and took them into possession vide memos. Exh. P. H., P. F., P. K., and P. M., respectively.
On 14-12-1979, Abroad appellant allegedly appeared before Qadir Bakbsh P. W. 13 and Muhammad Yousaf P. W. 14 and made an extra judicial confession as to the killing of Allah Ditta deceased with the help of his son Muhammad Aslam alias Asloo appellant because the deceased had been committing sodomy upon his son. These witnesses produced Ahmad appellant before the S. I. At the Dera of the complainant who formally arrested him. At that time Ahmad appellant was wearing blood-stained Chadder P.
6. It was got removed from his person and taken into possession vide memo. Exh. P. N. Ahmad appellant then led the S. I. To the recovery of blood-stained Kassi P. 7 which was taken into possession vide memo. Exh. P. O. He also took into possession blood-stained earth vide memo. Exh. P. Q. From the ditch where the dead body of the deceased was buried in the first instance. Ahmad appellant further led to the recovery of tape-record Exh. P. 8 and blood-stained Chaddar Exh. P. 9 of the deceased and the same were taken into possession vide memo. Exh. P. R.
He got site plan Exh. P. C. And its duplicate Exh. P. C. 1 prepared by the Patwari and on 16-12-1979 got Aslam appellant medically examined.
4. Dr. Muhammad Nawaz Bhatti (P. W. 1) performed autopsy on the dead body of Allah Ditta deceased on 7-12-1979 at 3.00 p. m. And found eight sharp cuts on the neck, below the chin, left side of neck cutting trachea and big vessels, left mandible, the skull and left big toe of left foot. In his opinion the death occurred due to injuries Nos. 1, 3, 4, 5 and 6 seated on the neck, left side of neck cutting trachea and big vessels, left mandible causing its fracture, skull having fracture of the occipital bone and skull with fracture of the occipital bone into two pieces respectively. These injuries were sufficient to cause death in the ordinary course of nature, individually as well as collectively. All these injuries were caused with a sharp-edged weapon. The probable duration between the injuries and the death was 5 to 25 minutes whereas between death and post-mortem examination was about 3 days.
This Doctor, on 16-12-1979 on the receipt of an application from Police, medically examined Muhammad Aslam appellant aged 16-18 years, and opined :- "The buttocks were depressed centrally like a funnel shape. The anal margins were fibrosed. The anal sphincere was somewhat loose. On proctocopis examination the anal margins showed scar formations in the inner inside of the anal canal and loss of ragae."
On the basis of his examination he observed that Muhammad Aslam appellant was a passive agent.
5. In support of its case the prosecution mainly relied on the circum--stantial evidence inasmuch as the evidence of last seen furnished by Rana Asghar Ali P. W. 2, Shaukat Hayat P. W. 8 and Zulfeqar P. W. 16 ; extra judicial confession made by Muhammad Aslam appellant before Shaukat Hayat, Asghar Ali, and Ghulam Rasool P. Ws. And subsequent variation substituting Ahmad for Ramzan; extra-judicial confession made by Ahmad appellant before Qadir Bakhsh P. W. 13 and Muhammad Yousaf P. W. 14; the evidence of recoveries.
6. The appellants at the trial admitted their relationship inter se. How--ever, they denied the allegations levelled against them and stated that they had been falsely implicated in the case due to enmity since it was a blind murder. No evidence was led on their behalf.
7. The learned Sessions Judge believed the evidence as to the deceased having been last seen in the company of Muhammad Aslam appellant and the extra-judicial confession made by both the appellants before different sets of P. Ws. On the ground that the witnesses had no enmity with the appellants, so they had no motive to falsely depose against them. Similarly he accepted the evidence of recoveries and sought corroboration therefrom.
8. It may be mentioned at the outset that the P. Ws. And the deceased are related inter se, inasmuch as Shaukat Hayat P. W. 8 and Ghulam Rasool complainant (P. W. 10) are phuphizads of the deceased; Asghar Ali P. W. 9 is the cousin of the deceased whereas Irshad Ahmad P. W. 12 is his maternal cousin; Abdul Haq P. W. 11 and Zulfeqar P. W. 16 are the friends of the deceased, the former being from his brotherhood. Muhammad Yousaf P. W. 14 and Mukhtar Ahmad P. W. 18, are distantly related to the deceased.
9. The learned counsel for the appellants has contended that there is a delay of two days in the very; lodging of the F. I. R. In the F. I. R. Instead of Ahmad appellant, one Ramzan was accused and the motive was given in respect of him. As a whole the evidence produced is not reliable since the witnesses are interested being relative of the deceased. Ahmad appellant did not figure anywhere till 14th December, 1979 despite the disclosure of Muhammad Aslam appellant having been made on the very first day as to his participation also. The Investigating Officer had been searching for Ramzan till 14th December, 1979. In these circumstances, Ahmad appellant's extra-judicial confession appears as unnatural one. The recovery witnesses are hit by the same as are the other witnesses on the ground of relationship and interest. The learned counsel has lastly contended that it is a case of blind murder and as it has been made to depend upon the circumstantial evidence, so each particular link within the chain must conduce towards the result to one and only one inference i. e. The guilt of the accused persons.
10. In reply to the contentions so raised the learned counsel for the complainant and the State have laid their emphasis on the circumstantial evidence as to its each link which according to them stands established without any lapse and the result so produced is incompatible with the innocence of the appellants. As to the appreciation of extra-judicial con--fessions the learned counsel for the complainant in support of his argument, has cited Karam Ali v. The State (1968 P Cr.
L J 1645) the principle deducible from this authority is that the conviction can be based on a confession (though subsequently retracted) if it is found as genuine and is corroborated by other evidence on the record; Faiz Ahmad v. The State (1977 P Cr. L J 870) in this case an extra judicial confession was regarded as worthy of belief by treating the recoveries of incriminating articles mace at the pointing of the accused as corroborating the extra judicial confession; Aisha Khatoon v. The State (1968 P Cr. LJ 53) it was a case of circumstantial evidence. The conviction was upheld when the circumstances proved were neither compatible with the accused's innocence nor capable of any hypothesis other than that of the guilt of the appellants. It was further observed that if the confession whether judicial or extra judicial, retracted or not retracted was proved voluntary and true, then that could lead to the conviction of the accused on its sole basis.
The learned counsel for the complainant has urged in the revision petition for enhancement of the sentence of the appellants to that of death.
11. Now, the case of the prosecution is out and out based upon the circumstantial evidence regarding which it is necessary to reproduce the principles as have been applied by the Courts.
The first one is that the facts led in and proved must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.
An accused person is not to be convicted if the circumstances are not inconsistent with his innocence. The circumstantial evidence is to be considered link-wise as running into a chain vis-a- vis the pieces of evidence so as to lead to an inference of guilt beyond any reasonable doubt. If the link in the chain so running is proved a false, it will react upon the entire linkage then in these circumstances I will not be worthwhile to act upon other links however strongly knit those may be.
This case is being proceeded with in the light of the above-said principles, so this requires to put each item of evidence appearing in the case to test. To start with, evidence, has been adduced to show that the deceased and both the appellants were present at the Dera of Rana Attaullah Patwari alongwith other persons whereat the deceased amused them by playing his tape-record.
The aspectual facts which emanate from this situation, as alleged, are that Ahmad appellant left the place near about Ishawela and before leaving he whispered in the ear of his son Muhammad Aslam as to bring the deceased alongwith him and the second is that near about 12 o'clock in the night they were last seen proceeding together up to a beri tree. So far as the whispering of Ahmad appellant is concerned it appears to be an afterthought because had it been a fact then that would have been communicated by Mathela P. W. 17 to the relatives of the deceased when they made search for him (the deceased) and contacted every body in that behalf, so it is excluded from consideration as non-existent.
As to the item of last seen in murder cases it is not always inferable that a man if killed has been killed by the, person who was last seen in the company of the deceased. This can be regarded as one of the considerations to be taken up alongwith other facts.
12. The next item in the evidence is that of tracing the footprints of the deceased and Muhammad Aslam appellant. Now this particular step was taken up when two days had passed from the night of gathering within which time in a village each particular path is supposed to be traversed by so many persons. The difficulty which arises here is that how the witnesses could take their initiative when they were otherwise not acquainted precisely with the size, shape etc. Of the footprints of the deceased and appellant Muhammad Aslam. It usually happens to be the job of an Expert which had been undertaken by the witnesses. The footprints can be successfully placed if a path remains untraversed thereafter. It is usual that so many persons visit a dera and come back. It is not shown in the site-plan and evidence that the path exclusively catered the Dera and nothing else. Shaukat Hayat (P. W. 8), Asghar Ali (P. W. 9) and Ghulam Rasool (P. W. 10), have stated that they were led by the footprints up to the Dera of Muhammad Aslam appellant whom they contacted first and then they proceeded and discovered some drops of blood after which they returned and again enquired from Muhammad Aslam appellant who confessed before them. It appears unnatural that these persons after discovering the blood drops would not proceed further out of curiousity so as to come to the place where the dead body was lying. The dead body is said to have been recovered from Khutri minor situated a few paces ahead, perhaps it was omitted so in order to leave the dead body otherwise so as to attribute the lead to it to Muhammad Aslam appellant to create as an item of evidence against him,
13. The next link in the chain of evidence and perhaps the most important one is that of extra judicial confession allegedly made by Muhammad Aslam appellant. His confession qua the co- accused was as to Muhammad Ramzan and on the same extra judicial confession the complainant lodged the F. I. R.. With the police. It is said that fifteen minutes after Ghulam Rasool had left for the police station, Muhammad Aslam appellant again confessed that he and his father killed Allah Ditta, but in order to save his father he had named Ramzan Bopera as murderer. He also said that his father Ahmad had grudge, against the deceased since the deceased wanted to commit sodomy upon him. The change of name of the co-accused within the confession again appears to be the result of an afterthought because had such a change been made by Muhammad Aslam appellant then some witness ought to have followed the complainant since he had not yet covered such a distance that he could not be contacted and conveyed the subsequent amendment in the confession by Muhammad Aslam appellant. It is curious enough to note that right from 6th December, 1979 up to 14th December, 1979, the case remained investigated against Muhammad Ramzan till 14th when Ahmad appellant allegedly made confession before Qadir Bakhsh (P. W. 13) and Muhammad Yousaf (P. W. 14) who produced the former before the Investigating Officer at the Dera of the complainant whereat he was formally arrested. It is nowhere shown in the evidence that after the substitution of Muhammad Ramzan by Ahmad appellant the witnesses had made their way for Ahmad appellant. Taken as it is without caring for the subsequent amendment made by Muhammad Aslam appellant in the extra-judicial confession, the extra--judicial confession of Ahmad appellant is in direct conflict with the extra--judicial confession of the co-appellant as set up in the F. I. R., therefore, alongwith other considerations it is liable to be excluded. There is another reason for doing so and that is, that the police, had started the investigation before Ahmad appellant allegedly made his extra judicial confession which fact impairs the value thereof. The law is very sensitive as to the receiving of an extra-judicial confession. An extra judicial confession made in the first instance may be relied upon alongwith other circumstances but with a change the same cannot be relied upon because many considerations arise thereby that whether a change made in the confession by an accused person as to the co-accused is voluntary or otherwise. So the latter implica--tion of Ahmad appellant by Muhammad Aslam appellant in his extra judicial confession lends no support to the prosecution.
So far as Ahmad appellant is concerned and as against Muhammad Aslam appellant himself the subsequent change appears to have been entertained near about 14th December, 1979 and accomplished during the trial perhaps being conscious of the fact that the confession as set up in the F. I. R. Might not entail rejection due to its flimsy cohesion as to varied motives of Muhammad Aslam appellant and Ramzan. It is in the evidence that Muhammad Aslam appellant was a passive agent and of course of Allah Ditta deceased, then he could not have any motive independently to murder or to join the co-accused because he being a willing party had no cause to complain. It does not appeal to reason that in these circumstances a son will own before his father as to the fact of sodomy and will go to the extent of joining hands with his father in killing the deceased. The case of the prosecution is not in accord with the extra judicial confession as stated in the F. I. R., therefore, the extra judicial confession as set up in evidence by the prosecution has no evidentiary value as both the aspect of the extra-judicial confession of Muhammad Aslam cannot be held out from re-acting upon each other for nothing can become to except to discard it altogether and the statements of P. W. 15 Ghulam Qadir and Allah Ditta (given up) that the appellants were seen carrying something on a donkey on the night following the night of occurrence, lend no support to the prosecution because Ghulam Qadir P. W. Never rendered any account of this fact either before or during the investigation to the police. Both the extra-judicial confessions wielded a little sanctity because the witnesses before whom the same were made, were interested and closely related tothe deceased.
14. The recoveries alleged to have been made on the pointing out o both the appellants have been witnessed by the persons who are related to the deceased one way or the other. Since, in this case the extra-judicial confessions have not been believed, therefore, the effect so given react upon the ether items of circumstantial evidence, such as, last seen; present of footprints including the recoveries. The importance of recoveries does arise in a case but as a corroboratory fact. On recoveries only no conviction can be based and it is a well-recognized rule of law. Now to invoke the recoveries as corroboratory evidence the fact for which corroboration is to be sought must exist in evidence as having been proved on the record. Such a fact is that fact which connects an accused person with the commission of the offence yet as to its weight for some reason it requires corroboration. In this case the principal fact has fallen through on discarding of the extra judicial confessions then there is nothing to be corroborated so as t invoke the recoveries. From another point of view all is dependent upon the circumstantial evidence and at most the recoveries can be treated within the chain as a link against the appellants but the chain comes to be disrupted as has been said above. Even otherwise certain items of recoveries i. e. Blood-stained kassis, blood- stained earth and blood-stained chaddar of Ahmad appellant etc. Were kept in the Malkhana and were not sent to the Chemical Examiner or the Serologist as the case may be, for a long time, therefore, the same are liable to be excluded from consideration.
The prosecution case as led at the trial being in conflict with the case as set up in the F. I. R., the prosecution fails to prove its case against the appellants according to the accepted principle of the criminal administration of justice. In fact this is a case which lacks proper evidence.
15. For the foregoing reasons the appeal is accepted; the convictional and sentences of the appellants are set aside and they are acquitted. They shall be released forthwith if not required to be detained in connection with any other case. Resultantly, the revision petition for the enhancement of the sentence to that of death, stands dismissed.