This is an application in revision under section 215 read with section 439, Cr. P. C., to quash a commitment. The petitioners, are Muhammad Akram, Habib, Muhammad Ali and Ali Muhammad.
All four have been committed for trial on a capital charge of murder.
2. The story for the prosecution, shortly stated is as follows. On the 26th of October 1969, Nizam Din P. W. Saw that the dead body of Muhammad Afzal was hanging on a jujube tree ix the field of Wali Muhammad P. W., whereupon he proceeded to the village mosque and informed Wali Muhammad of the incident. Wali Muhammad along with Ismail, Abdur Rahim, Muhammad Sarwar, Abdul Hamid, Sher Muhammad, Feroze Khan and Muhammad Siddique proceeded to the place of occurrence and saw the dead body of Muhammad Afzal hanging on a jujube tree. Leaving Muhammad Siddique, Feroze Khan and Abdul Hamid to guard the-dead body Wali Muhammad, Ismail, Abdur Rahim, Muhammad Sarwar anal Sher Muhammad, went to the house of Shahmand, where all the four accused were present. On enquiry, they jointly confessed that they Gad taken the revenge of the insult inflicted by Muhammad Afzal on Mst. Nasim.
The motive of the assault was that Muhammad Afzal deceased had cut .a filthy joke with Mst.
Nasim; sister of Muhammad Akram, accused, and, for that the accused harboured a grudge against the deceased.
3. Doctor Muhammad Saeed, Medical Officer (P. W. 8) who conducted the autopsy on the dead body of Muhammad Afzal was of the opinion that the testicles of the deceased were crushed and that this injury was sufficient in 'the ordinary course of nature to cause death. He also found ligature mark around the neck which was ante-mortem.
4. Learned counsel appearing for the petitioners has urged that the evidence on the record and the `finding of the learned committing Magistrate is that the accused had made a joint confession to the prosecution witnesses, namely, Wali Muhammad, Ismail Abdur Rahim, Muhammad Sarwar and Sher Muhammad and as there is a general statement by the prosecution witnesses that the four accused admitted having committed a crime, it is valueless without some indication as to which of the persons made the statement in question and in the absence of any such indication, it is not safe to rely on an extra-judicial confession. In support of his contention he cited Manzoor and others v. The State (PLD 1957 Lah. 1023), and Ali and others v. Crown (PLD 1950 B J 26). In the former case, the learned Judges, observed : ". . . . A general statement by a witness that a number of persons admitted having committed a crime is valueless without some indication as to which of the persons, made the admission in question . . . . In the absence of any such indication, in the present-case, we do not consider it safe to rely on the extra judicial confession."
The latter case is on all fours to the facts of the present case. In that case, their Lordships found that with th6 exception of Jind Wadda all the witnesses, on this point attributed a joint confession to the appellants and came to the conclusion that where the prosecution witnesses, attributed a joint extra-judicial confession to to accused that evidence relating to such extra judicial confes-- sion was defective and no importance could be attached to it.
5. The evidence on the record of this case shows that Wali Muhammad, Abdur Rahim, Ismail, Muhammad Serwar and Sher Muhammad who were produced by the prosecution to testify the statement made by the alleged murderers after the crime had been committed, deposed that, they had. Killed. Muhammad Afzal deceased to avenge the insult inflicted by him. These witnesses do not say which of these four accused made the incriminating statement, but speak as if four men shouted in chorus. None of these witnesses say which of the petitioners made the confession of crime, therefore, such confession could not be used as evidence against the accused. As it is a general statement made by a witness that these four persons admitted having committed a crime; therefore, it is valueless arid has to be ruled out of consideration.
As I have excluded the evidence of joint extra judicial confession from consideration the only, evidence left on the record is the medical evidence, and the evidence of motive. The evidence) of motive can be used-as a corroborative evidence, but it cannot be taken by itself to prove the crime.
6. The above discussion will go to show that there is no evidence to support the order of commitment therefore, the commitment order must be quashed, because, absence of evidence is a question of law and not of fact. Learned counsel appearing for the State is unable to show that there is any evidence direct or circumstantial to support the charge against any one of the accused.
7. I, therefore, quash .The commitment order, dated the 15th of May 1970, and direct that the accused be released forthwith, provided always they are not required to be detained fn any other case.