MUHAMMAD MUNIR FARUKEE, J.--The to appellants, Mst. Sardaran and her paramour Waryam were tried along with Akbar for the murder of Sohni deceased, their co-villager, by the learned Additional Sessions Judge, Sargodha who acquitted Akbar and finding the to appellants guilty, convicted them under section 302/34 of the Pakistan Penal Code and sentencing the former to death and the latter to transportation for life has submitted the record to this Court for, the confirmation of the death sentence while the conviction itself is the subject-matter of an appeal preferred by them. This judgment will dispose of both these matters, i.e., the reference under section. 374, Cr. P. C. And the appeal.
2. The prosecution case in brief is that Sohni deceased had contracted illicit relations with Mst.
Sardaran (appellant) wife. Of Dosa, his co-villager. She was a woman of easy virtue and deserting Sohni deceased took fancy with Waryam, appellant and Akbar, the acquitted accused. Sohni deceased used to taunt her on that account, which offended her as well as her paramours, who decided to remove him from their way. It was alleged that motivated with these feelings of rivalry Waryam appellant took Sohni to a deserted dera of the father of Mst. Sardaran on the night between 5th and 6th July 1965 on the pretext of effecting a compromise between them, where she was present along with Akbar (acquitted accused). Trapping him in that manner Waryam appellant secured him in and Mst. Sardaran appellant is said to have killed him with toka blows. His head was then separated and thrown in a canal while the remaining dead body was buried in the adjoining khola of the same dera. Sohni deceased had come with his gun (P. 2) in the cover (P. 4) and the bandolier (P. 3) containing .12 bore cartridges, which were taken away by Akbar (acquitted accused). His brother Mohabati (P. W. 9) found- his brother Sohni (deceased) missing from his house on the next morning and searched "for him in the neighbourhood, but without any success.
He suspected the appellants for having a hand in the matter and contacting them made inquiries, but they are said to have put him of with evasive replies. After a hectic search for about a week his anxiety increased and he suspected a foul play about him, so he proceeded to the police station on the morning of 10th of `July 1965, but came across Ghulam Muhammad, Head Constable (P. W.
9) on the nearby canal bridge, who recorded his report Exh: P. F. And sending it to the police station for the registration of a case reached village Mstila and took in hand the investigation of the case, but he was immediately relieved by Assistant Sub-Inspector Mirza Abdul Ghafoor (P. W. 16), who came there on the receipt of the information about it through Exh. P. F.
3. The arrival of the police in- the village made Waryam Appellant nervous about it, so he approached Mirza Khan (P., W. 11), a respectable of the adjoining Chak, and taking him into confidence is said to have made a confession of his guilt before him soliciting his help in the matter, who produced him before the Assistant Sub-Inspector on the next morning. He was taken into custody and in the course of interrogation he led to the recovery of the headless body of Sohni deceased from the deserted khola of Ladha Sial, the father of Mst. Sardaran appel--lant. It was taken into possession along with chadar (P. 1) on 11th July 1965. He also pointed out the place where Sohni deceased was originally killed by them and blood-stained earth was secured vide Exh. P. E.
4. Dr. Safdar Ali (P. W. 1) held autopsy on the dead body on the same day at 9 a.m. Vide memo. Exh.
P. B. And found as under :--
(1) An incised wound, 15" x 4" through the whole of neck on the lower part 1" above the supra sternal notch, cutting the neck viz. Muscles, trachea esophagus, vessels and vertebral column at the level of 5th and 6th cervical spine. The head was missing from the body.
(2) An incised wound, 3" x 1" cutting the whole of toes of left foot at the junction of toes and feet.
All the other vital organs were healthy. Stomach was empty. In his opinion, death in this case was due to injury. No. 1, which caused shock and haemorrhage. Injury No. 2 was grievous. Both the injuries were ante-mortem and were inflicted with sharp---edged weapon. Injury No. 1 was sufficient in the ordinary course of nature to cause death. The skin from thumb and finger tips of left hand and thumb and finger tips of right hand were handed over to the police in sealed bottles.
The probable the between injuries arid death was immediate and the the between death and post-mortem was within seven days.
5. On the 12th of July 1965, Mst. Sardaran appellant is said to have' approached Mahmud Khan (P.
W. 13) with a request to save her the rigours W the investigation and confessed her complicity in the crime with Waryam appellant and Akbar (acquitted accused). She was produced before Assistant Sub---Inspector Mirza Abdul Ghafoor, who took her into custody and in the course of the interrogation is said to have produced blood--stained toka (P. 5) from within the rafters of the ceiling of the kotha of his father. This toka was made into a sealed parcel vide memo. Exh. P. G.
On the same day, Akbar (acquitted accused) is said to have used the good offices of Nama (the given up P. W.) for his pro--duction before the police and while in custody he led to the recovery of gun (P. 1) in cover (P. 4) with bandolier (P. 3) which were taken into possession vide Exh. P. H. This gun etc. Belonged to the deceased: It was alleged that he had also confessed before Nama his implication in this amorous drama.
6. The sealed bottle containing the skin pieces removed from the thumb and finger tips of the left hand and thumb and finger tips of the right hand and thumb were sent to the Finger Print Bureau, Lahore, for comparison to establish the identity of the dead body. At the Bureau a search slip (marked A) was prepared from the skin pieces of ten digits contained in that bottle. The impressions taken on this search slip were compared with the impressions contained in the finger print (record slip) D. S. No. B. 1791 dated 21-2-1957 of Sargodha purported to be ten digits impressions of Sohni son of Malli (deceased) retained in the record of the Finger Print Bureau (marked B) as also with the impressions on the search slip (marked C) obtained from the personal file of Sohni deceased retained in the local police station. In the opinion of the expert the impressions marked as 6, 7, 8; 9 and 10 on the search slip (marked A) were identical with the corresponding left hand five digit impressions of Sohni son of Malli, Vijhal of Matela Police Station Kotmoman, District Sargodha (deceased) as also with the impressions on the finger print record slip B 1791 (marked C), vide report Exh. P. O.
7. The evidence of the doctor recorded by the committing Magistrate on 27th December 1965, was transferred to the file of the Sessions case under section 509 of the Criminal Procedure Code to prove the cause of the death of Sohni deceased and that of the Finger Print Expert recorded by the committing Magistrate on 11th June 1966 under section 32 of the Evidence Act to establish the identity of the dead body, but neither the cause of his death nor the identity of the dead body of Sohni was disputed by the appellants in this case.
8. The background of the sudden disappearance of Sohni deceased from his house during the ill- fated night was deposed to by his brother Mohabbati (P. W: 9). He also identified his chadar (P. 1), gun (P. 2), Bandolier (P.-3) and cover (P. 4). Mirza Khan (P. W. 11) and Mahmood Khan (P. W. 13) unfolded the extra-judicial confession made before them by Waryam and Mst. Sardaran appellants respectively while Sardar (P. W. 12) and Sher Muhammad (P: W. 15) proved the above detailed recoveries effected at the instance of the to appellants and that of Akbar (acquitted accused) through Assistant Sub-Inspector Abdul Ghafoor.
9. The appellants in their turn denied these allegations and pleading their false implication in this case on account of enmity with the prosecution witnesses averred their innocence but led no evidence in defence.
10. Learned trial Judge accepted the above evidence in respect of Waryam and Mst. Sardaran appellants convicted them as stated above.
11. Learned counsel for the appellants has debunked the alleged extra-judicial confession and the recoveries as mere con--coction and on going through the record we do not find any satisfactory evidence to sustain their conviction. Although the report was lodged five, days after the alleged disappearance of Sohni deceased, but the is closure about his allegedly well planned and secret disposal was so abrupt, and hurreid followed by relevant recoveries in so quick a succession that it did not inspire confidence. Moreover. The story put forward is so improbable and the evidence so discrepant and tainted that it is difficult to accept it as correct, especially when it is even inconsistent with the medical evidence. We will deal with each of these infirmities of the prosecution case ad-seriatim
(i) Delay in report.-No explanation has been given for delay--ing the report for such a long the when, it is known to every one that a belated report weakens the case. In the present case an attempt has been made to accelerate it but it could not be taken beyond 6 a.m. On 10th July 1965, although it appears to have been recorded much later and might even be well after the recovery of the dead body. A reference to the evidence of Nazir Husain Foot Constable (P. W. 3) would at least show that the report in this case was definitely lodged in the after--noon of 10th July and not, in the morning as shown in Exh. P. F. On scanning this report the first impression one would form is that it was drawn out as a result of thorough deliberations after the case had taken the final shape, and the words "after calling him on some pretext" and introduction of "grey coloured chadar as also the. "S. B. Gun with its cover and the bandolier containing .12 bore cartridges" would support this conclusion. The informant Mohabati (P. W. 9) had stated at the trial that on the night between the 5th and 6th of July 1965 Sohni deceased disappeared and it so happened that Sohni deceased went to sleep and during, mid-night he dis--appeared without notice when he (Mohabati) was asleep. How could then he know which clothes were worn by him at the the of his; unnoticed departure or that he had taken along with him his gun in cover and the bore of the cartridges in the bandolier. It was allegedly disclosed by the appellants later that Waryam had called him away on the false pretext of meeting Mst. Sardaran appellant for a compromise, but it is strange that it found a mention in clear terms in the report, which would leave no room for doubt that it was in fact drawn out after the whole case had been chalked out by the police with the proposed witnesses.
(ii) Disclosures.-It is equally unusual that-each of the three persons originally involved in the case bad suddenly succumbed to the prick of their conscience just on the sight of the police in the village, and selecting three persons closely related inter se and partisans of Sohni deceased, and inimical to themselves and vying with each other confessed their guilt one by one before them for saving themselves from the rigours of the investigation, but as it was all a made-up affair the evidence crumbled down bit by bit.
It was alleged that on seeing the police arrive in the village on the 10th of July 1965, Waryam appellant felt so nervous about it that he on the same evening slipped away to the neighbouring Chak and contacting Mirza Khan (P. W. 11) made a clean breast of the whole affair and requested him to produce him before the police, but for no ostensible reason this witness detained him at his house for the night and took him to village Matela on the next days, i.e., 11th of July 1965, and produced him before the Assistant Sub-Inspector in the premises of the local. School. This assertion of the prosecution was also belied by the aforesaid Foot Constable Nazir Husain who had stated that Waryam appellant had himself appeared before the police in Matela School on that day.
Although the bubble had been pricked by this single factor in the prosecution case the testimony of Mirza Khan P. W. Even otherwise could not stand the test of scrutiny. He had stated before the police that Waryam appellant had come to his dera on the evening of the 10th of July, but feeling that: to reach his dera in the evening 'the appellant would be deemed to have set out from his village, much before sunset when he cold have been apprehended by. The police he thought of making' it a secret departure, s-- at the trial 'he delayed his arrival by saying that he approached him in the cover of darkness at "sotewela". Then there was a striking discrepancy about the day of this murder in his evidence as he had stated before the police that Waryam appellant had told him that Sohni deceased was murdered by them 5/6 days earlier, while at the trial he stated that Waryam appellant had told him that his murder was com--mitted about three days earlier which even did not fit in with the prosecution case. His statement was contradictory even about the the of this murder on that eventful night, as accord--ing to his police statement Waryam appellant had told him that they had murdered Sohni deceased after the day break which at the trial he denied about the the of murder. He was duly confronted with these variations but he `had offered no explanation for these material discrepancies in his evidence. Even the specific role played by the three co-accused was not mentioned-by this witness as the confession according to him was in general terms that Waryam appellant had told him that he along with Akbar and Mst. Sardaran appellant had com--mitted the murder of Sohni deceased and thrown his head in the canal. He had given a false explanation for not immediate--ly producing him before the police by saying that he was alone on the derv although he had f our sons and a servant. He was neither a Lambardar nor a B. D. Member and had no earlier connections with Waryam then why was he selected for this fiduciary purpose is a myth in itself.
Mahmood Khan (P. W. 13) is the witness of extra judicial confession of Mst. Sardaran appellant who admitted that Dosa, the husband of Mst. Sardaran appellant and his cousins Baqri and Chakri had assaulted his (Mahmood Khan's) cousin Manak and were sentenced to' rigorous imprisonment for six months; how could then Mst. Sardaran appellant . Confide in this man. He is a B. D. Member (as mentioned in the judgment itself by the trial Judge) and thus a person in authority. He had admitted that Mst. Sardaran appellant and her husband came to him and sought his help and that he had promised to help them, 'so the alleged confession could- have been induced by this promise, it had, therefore, to be excluded from consideration.
(i.e) Recoveries.-Sardara (P. W. 12), Salehon (P. W. 14) and Sher Muhammad (P. W. 15) are the witnesses of recoveries. As stated above Sardara P. W. Had admitted 'that he was a first cousin of Nama (given .Up P. W.) and as uncle of Mahmood Khan P. W. And that Sohni deceased was a tenant of his nephew Muhammad and Sher" Muhammad P. W. Was his own tenant. He also admitted his enmity with Akbar (acquitted accused) and that Manak son of Rehman was a son of his first cousin who had been beaten by Dosa the, husband of Mst. Sardaran appellant and her to cousins as conceded by Mahmood Khan P. W. This witness had also, deposed at the trial about the recovery of gun (P. 2), bandolier (P.3) and cover (P. 4) from Akbar's. Dera while he had denied any knowledge about these recoveries before the committing Magistrate. He has rather denied the factum of any such recoveries in his presence.
Salehon (P. .W. 14) had admitted before the committing Magistrate that he was brother of Sohni deceased, but denied his relationship with him at the trial. Sardara P. W. Admitted that this witness (Salehon) and his brother Nama (given up P. W.) his nephew Umra, Amir and Turej son of Muhammad, his nephew end his sister's son Shera were challaned for the murders of Manak and Shera which proved that all of theca were partisans of each other. Their evidence did not therefore, deserve any credence especially in face of the above detailed) A discrepancies and enmities. The, A. S. I. Has however conceded that toka P. 5 was got recovered by Mst. Sardaran from a kotha of her parents which was lying unattended and without a lock at that the, permitting of a chance to plant it on her.
(iv) Improbabilities.--The prosecution case is that Mst. Sardaran had deserted Sohni deceased and.-taken to Waryam appellant and Akbar then Sohni deceased would, have a motive to avenge the betrayal' of Mst. Sardaran and to eliminate Waryam and Akbar. Mst. Sardaran appellant being in their hand the shoe would then be on the other foot as there, was no necessity for them to remove Sohni from their way. Even if Waryam appel--lant and, Akbar had planned to avenge the' taunts of Sohni deceased hey would never have taken Mst. Sardaran into confidence 'much less to invite hex to dip her hands deep in his blood while Akbar stood by as a silent spectator. In fact it does' not appeal to reason that he would have set out from his house at the dead of night in the company pf a. Sworn enemy for a lonely place to fall into this trap and if he had. Undertaken this venture he must have kept his gun loaded with his grip tight over it to 'be able to use it any moment be smelt a foul play making it impossible for Waryam to run. The risk of even touching him for the fulfilment of his evil designs about him, but he seems to have not raised his little finger or even ;the voice in protest and making a present of his gun etc. To Waryam appellant lay prostrate on the ground before them offering his neck for. The chopper, in the hand of his beloved Mst.
Sardaran appellant without any demur or distain, whichwould certainly be unnatural being against the instinct of self-- preservation.
(v) Inconsistent with medical evidence.-A glance of the fatal injury would indicate that Sohni deceased was laid prostrate and held tight to the ground for being slaughtered to death which required at least three persons to accomplish the fate, but the alleged confessional statement of Mst. Sardaran appel--lant disclosed that Waryam appellant alone had caught hold of the deceased and she had done the rest which was physically impossible for them. There is a clean cut incised wound 15" x 4" involving the whole of the neck which required a long bladed heavy weapon like a chopper rather than a toka and a powerful man to put all his strength behind it.
Akbar's participation having been found doubtful Waryam and Mst. Sardaran appellants could not have achieved this result. The prosecution case was thus inconsistent with the medical evidence.
12. The upshot of this discussion is that the evidence about the extra-judicial confession and the relevant recoveries at the instance of the to appellants was discrepant, interested and tainted as all the prosecution witnesses admittedly belonged to one family who were not favourably disposed to the appellants and the version put forward by them was apparently improbable and unnatural as also inconsistent with the medical evidence.
The statement of Nazir Husain Foot Constable (P. W. 3) had demonstrated that the first report was not correctly timed and most of the factors mentioned therein indicated that it was drawn out after due deliberations and prolonged consultations which rendered the entire case extremely doubtful.
Taking this view of the matter we cannot maintain the conviction of the to appel--lants and accepting their appeal direct that they shall be set at liberty forthwith if not required by the police in any other case.
The reference under section 374, Cr. P. C. Accordingly fails.